EXHIBIT 10.21 AS INDICATED BY "***", PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT, AND HAS BEEN FILED SEPARATELY WITH THE COMMISSION.
SALES AND MARKETING AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into as of January 1,
1999, by and between JORE CORPORATION, a Montana corporation ("Jore"), having
a principal place of business at 45000 Highway 93 South, Ronan, Montana
59864, and MANUFACTURERS' SALES ASSOCIATES, LLC, an Illinois limited
liability company ("Sales Rep"), having a principal place of business at
277 Sandy Point Lane, Lake Zurich, IL 60047.
RECITALS:
WHEREAS, Jore is the manufacturer and developer of certain products and
is desirous to have those products marketed and sold in certain markets; and
WHEREAS, Sales Rep has experience in marketing and sales, and wishes to
contract with Jore to assist in its sales and marketing efforts; and
WHEREAS, subject to the terms and conditions herein, the parties desire
that Jore contract with Sales Rep to assist in its efforts to market and sell
Jore products to certain markets.
NOW THEREFORE, in consideration of the covenants set forth herein, the
parties agree as follows:
AGREEMENTS
CONTRACT. Subject to the terms and conditions set forth herein, Jore
hereby agrees to contract with Sales Rep to assist Jore in its efforts to
market and sell certain Jore products in certain markets on an exclusive
basis. The types of Jore products covered by this Agreement are limited to
those items listed on Schedule A to this Agreement (the "Products"). Jore may
amend this Agreement to include additional products that may be developed in
the future at Jore's sole discretion.
EXCLUSIVITY LIMITATION. The exclusivity of this arrangement is limited
to those geographical areas set forth on Schedule B and mutually agreed to
hereunder (the "Territory"), and within the Territory, to those businesses or
persons listed on Schedule B (to be designated as "Commissioned Customers").
The nature of the exclusivity is such that Jore will pay a commission to
Sales Rep (as provided herein) on all Products sold to Commissioned
Customers. Jore reserves the right to not distribute its Products to certain
customers in its sole discretion. Jore is not precluded from entering into
direct or indirect marketing arrangements with customers other than
Commissioned Customers within the Territory, upon which no commission would
be due to Sales Rep (i.e., other than those reflected on Exhibit B-1).
However, it is the intent of Jore that, during the term of this Agreement, if
a Commissioned Customer fails to reasonably develop the commercial potential
of a market or discontinues marketing Jore products that Jore has the right
to demand that other customers be developed to achieve distribution in the
former customer's market. Sales Rep will be paid a commission on such sales
only if it assists in the establishment and growth of such new customer.
COMMISSIONS. As compensation for services rendered hereunder, Jore
agrees to pay Sales Rep a commission of a certain percentage of NET receipts
on all sales to Commissioned Customers, net of applicable discounts and sales
and marketing allowances. The applicable commission rates may
- -------------------------------------------------------------------------------
DISTRIBUTOR LICENSE AGREEMENT PAGE 1
differ according to the niche industry or distribution chain within which
each Commissioned Customer is situated, and is detailed on Schedule B, as it
may be amended from time to time. The commissions shall be deemed earned when
Jore receives payment on the invoice which was rendered by Jore on such sales.
Jore shall provide Sales Rep with duplicate copies of all invoices for sales
generated for Commissioned Customers, and will, on a monthly basis, within
thirty (30) days of the end of the prior month, issue a commission statement,
reflecting all invoices rendered, all shipments made, and all collections of
receivables upon which the commissions are payable. Payment of the
commissions shall accompany the statement.
TERM. This Agreement shall commence as of the date hereof and shall
terminate on December 31, 2003, unless renewed by the parties for an
additional 5 year term. This Agreement shall terminate upon notice by either
party at least sixty (60) days in advance of the intended termination date.
In the event of termination, it is agreed that Sales Rep shall have earned,
and shall be paid, commissions on all sales against orders and order
commitments made by or through Sales Rep during the term of this Agreement,
irrespective of whether the products are shipped and the receivables are
collected after the effective termination date.
ASSIGNABILITY. Sales Rep may not assign its rights under this Agreement
to another party without the prior written consent of Jore, in its sole
discretion.
CONTACT REPORTS. Both parties to this Agreement will update and keep
current the other party with written reports generally describing the current
status of relevant marketing development efforts with Commissioned Customers,
and with potential Commissioned Customers within the Territory. Sales Rep
will, within thirty (30) days of its occurrence, report to Jore each contact
made with a business or person that may become designated as a Commissioned
Customer so that Jore may maintain the exclusivity described above. Each
party will provide the other party with copies of material correspondence
associated with relevant market activities.
DILIGENCE. Sales Rep and Jore shall use their best efforts to develop
and market Jore products for the Territory as is commercially reasonable.
Sales Rep covenants to exercise due diligence and good faith efforts
commensurate with its role as the primary sales organization for Jore, and
commensurate with the substantial volume of sales and commissions which will
be subject to this Agreement, and with the large percentage of sales of Sales
Rep that it is anticipated Jore sales will represent. Jore expects that Sales
Rep will devote a SUBSTANTIAL amount of its resources and attention to Jore
sales and Products. Jore and Sales Rep will review the due diligence and best
efforts on a semi-annual basis, and each will have an opportunity to appraise
and comment.
MANUFACTURE. Sales Rep will not market, make or cause to have made
licensed Jore products as listed on Attachment A (except by Jore) or products
similar to Jore Products as listed on Attachment A during the term of this
Agreement. Jore does not grant Sales Rep the right to make or have Jore
products made.
PATENT MATTERS. Jore will have sole responsibility and discretion as to
maintenance of patent rights in all territories for Jore Products. In the
event Sales Rep or Jore becomes aware of (i) any infringement of any patent
rights by a third party related to Jore products; or (ii) any claim alleging
that a Jore product infringes any patent of a third party; or (iii) any legal
action brought by any third party for the purpose of invalidating any patent
related to Jore products; that party shall promptly notify the other party in
writing. Jore shall assume the primary responsibility for the conduct of the
defense of any suit alleging patent infringement in connection with the
manufacture, use
- -------------------------------------------------------------------------------
DISTRIBUTOR LICENSE AGREEMENT PAGE 2
or sale of a Jore product and shall indemnify and hold Sales Rep harmless
against any damages, costs, fees and expenses resulting from any such claim.
Jore shall bear the costs of the defense of such suits. Upon the reasonable
request of Jore, Sales Rep shall assist Jore and cooperate with Jore in the
defense of any such litigation.
INDEPENDENT CONTRACTORS. In making and performing this Sales and
Marketing Agreement, Sales Rep and Jore act and shall act at all times as
independent contractors and nothing contained in this Agreement shall be
construed or implied to create and agency, partnership or employer
relationship between Sales Rep and Jore. At no time shall one party make
commitments or incur any charges or expenses for or in the name of the other
party except as specifically provided herein.
INDEMNIFICATION. Each party shall be responsible for the safety of its
own employees and agents with respect to the handling or use of any of the
Products involved in this Agreement. Jore agrees to indemnify and hold Sales
Rep harmless from any liability for property damage, personal injuries
(including death) or expense (including reasonable attorney's fees) resulting
from or in connection with any claims relating to the manufacturing of a Jore
licensed product distributed or sold by Sales Rep to third parties pursuant
to this Agreement, except to the extent such property damage or personal
injury (including death) is caused, directly or directly, by the negligence,
error or willful misconduct of Sales Rep.
NO CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR
SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT OR
THE EXERCISE OF RIGHTS HEREUNDER.
WARRANTY. Jore is committed to producing quality products and values its
customer's satisfaction. Therefore, any product manufactured by Jore which
fails to render satisfactory service due to defect in workmanship or material
will be refunded, repaired or replaced at Jore's option, at no charge to the
using purchaser. This warranty does not apply to any products which have been
misused, abused, or altered in any way, or worn out from use. To obtain
performance of this warranty, the Product must be returned, freight prepaid,
to Jore.
IN NO EVENT SHALL JORE BE LIABLE FOR ANY INDIRECT, INCIDENTAL OR
CONSEQUENTIAL DAMAGES FROM THE SALE OR USE OF JORE PRODUCTS.
THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED,
WHETHER FOR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE.
This Warranty provides the purchaser of Jore products specific legal
rights, and such purchaser may also have other rights which vary from state
to state and country to country. Some states or countries do not allow the
exclusion or limitation of incidental or consequential damages, so the above
limitations or exclusion may not apply in those states or countries. Some
states or countries do not allow limitation on how long implied warranty
lasts, so the above limitation my not apply in those states or countries.
No attempt to alter, amend or extend this warranty shall be effective
unless authorized in writing by an officer of Jore. Jore neither assumes, nor
authorizes any person to assume for it, any other warranty express or implied.
- -------------------------------------------------------------------------------
DISTRIBUTOR LICENSE AGREEMENT PAGE 3
DISCLAIMER. Jore reserves the right to make changes or improvements on
any Product without incurring any obligation and without being required to
make any corresponding changes or improvements on Products previously sold,
and to discontinue models or change specifications at any time. If Jore does
decide to make significant changes or improvements to a licensed Product,
Jore will notify Sales Rep of such change within a reasonable time.
GOVERNING LAW AND JURISDICTION. This Agreement shall be interpreted and
construed in accordance with the laws of the State of Montana.
SEVERABILITY. If any term, condition or provision of this Agreement is
held to be unenforceable for any reason, it shall, if possible, be
interpreted rather than voided, in order to achieve the intent of the parties
to this Agreement to the extent possible. In any event, all other terms,
conditions and provisions of this Agreement shall remain valid and
enforceable to the full extent.
ADDITIONAL DOCUMENTS. From time to time, either party shall, at the
request of the other party, execute such further documents or agreements or
take such additional actions as the other party may reasonably request to
effect the purpose of this Agreement.
AMENDMENT. No amendment or modification hereof shall be valid or binding
upon the parties unless made in writing and signed by both parties.
ENTIRE AGREEMENT. This Agreement embodies the entire understanding of
the parties and shall supersede all previous communications, representations
or understandings, either oral or written, between the parties relating to
the subject matter hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement by their
respective officers hereunto duly authorized, as of the day and year first
above written.
JORE CORPORATION MANUFACTURERS' SALES ASSOCIATES, LLC
By: /s/ [ILLEGIBLE] By: /s/ [ILLEGIBLE]
------------------------------- --------------------------------
Title: President Title: Managing Member
---------------------------- -----------------------------
- -------------------------------------------------------------------------------
DISTRIBUTOR LICENSE AGREEMENT PAGE 4
SCHEDULE A
TO
SALES AND MARKETING AGREEMENT
DESCRIPTION OF LICENSED JORE PRODUCTS
*** sold to Commissioned Customers (as defined herein) for retail
distribution.
SCHEDULE B
TO
SALES AND MARKETING AGREEMENT
TERRITORY GRANTED EXCLUSIVITY
***
TERRITORY NOT GRANTED EXCLUSIVITY
Anywhere where Jore has executed an Exclusive Licensing Agreement -
currently NONE
COMMISSIONED CUSTOMERS:
***
APPLICABLE COMMISSIONS:
***
FIRST AMENDMENT TO SALES AND MARKETING AGREEMENT
THIS FIRST AMENDMENT TO SALES AND MARKETING AGREEMENT is made and
entered into as of June 1, 1999, by and between Jore Corporation ("Jore") and
Manufacturers' Sales Associates, LLC ("Sales Rep").
RECITALS
A. The parties entered into a sales and marketing agreement as of
January 1, 1999 (the "Agreement"), under which Sales Rep is to perform
certain services and is to be compensated by Jore under a certain commission
schedule on certain sales.
B. The parties desire to modify the Agreements and understandings as to
the commissioned products, the commissioned customers and the commission
rates.
AMENDMENTS
1. AMENDMENT OF SCHEDULES. Schedules A, B, and B-1 are hereby amended in
their entirety to be reflected to the extent modified hereto.
2. REMAINING PROVISIONS. All remaining provisions of the Agreement shall
remain in full force and effect except to the extent modified hereby.
IN WITNESS WHEREOF, the parties have executed this Agreement by their
respective officers or managers duly authorized, as of the day and year first
above written.
JORE CORPORATION
By:
--------------------------
Its
--------------------------
MANUFACTURERS' SALES ASSOCIATES, LLC
By:
--------------------------
Its Managing Member
2
SCHEDULE A
TO
SALES AND MARKETING AGREEMENT
DESCRIPTION OF LICENSED JORE PRODUCTS
*** sold to Commissioned Customers (as defined herein) for retail
distribution.
3
SCHEDULE B
TO
SALES AND MARKETING AGREEMENT
TERRITORY GRANTED EXCLUSIVITY
***
TERRITORY NOT GRANTED EXCLUSIVITY
Anywhere where Jore has executed an Exclusive Licensing Agreement -
currently NONE
COMMISSIONED CUSTOMERS:
***
APPLICABLE COMMISSIONS:
***
4