Exhibit 10.25
TITANIUM DIOXIDE PRODUCTS AND
TITANIUM CHEMICALS
DISTRIBUTION AGREEMENT
This Agreement is made as of January 1, 2005 between each entity listed as
a "Seller" on Schedule 1 attached hereto (each a "Seller" and collectively the
"Sellers") and each entity listed as a "Distributor" on Schedule 2 (each a
"Distributor" and collectively the "Distributors").
RECITALS
Seller manufactures and/or sells Titanium Dioxide Products and Titanium
Chemicals ("Products").
Distributor desires to purchase Products and to engage in the business of
marketing and promoting sales of Products in the territory (the "Territory") set
forth under Distributor's name in Schedule 3; and
Pursuant to the terms of this Agreement, Distributor desires to purchase
Products from Seller for resale and Seller desires to authorize Distributor to
purchase Products for resale in the Territory;
NOW, THEREFORE, in consideration of the mutual covenants set forth in this
Agreement, the parties agree as follows:
1. Grant. Seller appoints Distributor as a distributor in the Territory to
sell Products and solicit purchases of Products in the Territory.
Distributor may act as a distributor of Products outside of the Territory
with prior written consent from Seller. Seller may sell Products inside
Distributor's Territory with prior written consent from Distributor.
2. Acceptance. Distributor hereby accepts appointment as the Seller's
Distributor in the Territory and agrees to use best efforts to sell in the
Territory Products of Seller and to promote the sales of Seller's Products
in the Territory.
3. Facilities, Equipment, Personnel. Distributor shall obtain, use, maintain
and provide adequate equipment, facilities and personnel to perform its
functions under this Agreement and shall make them available to Seller upon
request from Seller and at no cost to Seller.
4. Samples and Information. Distributor shall use its best efforts to provide
purchasers and prospective purchasers of Products all information, samples
and materials concerning Products that such purchasers and prospective
purchasers request and that Seller makes available and provides to
Distributor for such purposes.
Seller shall make available at its own expense to Distributor, samples of
Products, technical or sales information, brochures, advertising, labeling
and other materials that Seller deems appropriate to enable Distributor to
promote the sale of, and obtain orders for Products.
5. Collections, Credit, Complaints. Distributor shall, without additional
compensation other than what is provided for in this Agreement, send
invoices to and make collections from customers for all Products purchased
hereunder. Seller shall fully cooperate with Distributor in all collection
activities, but Distributor shall have the sole responsibility for
collections. Distributor shall conduct collections in its own name and at
its own expense. Distributor also shall be responsible for obtaining credit
information from customers and establishing customer accounts.
6. Bad Debts. Distributor shall bear the entire risk for uncollected funds
from customers.
7. Expenses. Except as otherwise expressly set forth herein, all expenses
incurred by Distributor pursuant to this Agreement shall be for
Distributor's account without compensation or reimbursement to Distributor
by Seller. Distributor shall incur no expenses for the account of Seller
without the prior written consent of Seller.
8. Customer Complaints. Distributor shall handle customer complaints related
to the Product and shall provide Seller with specific details regarding the
nature of the complaints and remedies taken or any additional action that
may be required by the Seller for the resolution of the complaints.
9. Delivery. Passage of title shall take place at Seller's dock. Seller is
responsible for all transportation and related charges, including local and
other applicable taxes arising from shipment to the first warehouse
(Distributor's or customer's warehouse). All transportation and related
charges arising from shipment beyond the first warehouse shall be paid by
Distributor.
10. Pricing. Distributor's purchase price for Products acquired from Seller
(the "Price") shall be the average realized market price of the Products to
all customers (after discounts and rebates) less the deductions as defined
on Schedule 4 attached hereto. The Price shall be calculated quarterly
based on prior quarter actual net sales prices and shall be effective on
the first (1st) accounting day of the second month following the end of
each quarter. The Distributor is responsible for all price negotiations
with the customer.
11. Currency and Exchange Rate. Sales of Products will be denominated in the
currency of the Distributor.
12. Payment Terms. Distributor shall pay the Price due to Seller hereunder net
15 days from month end for Products purchased by Distributor and delivered
to Distributor or Customer during such month. Distributor may offset
amounts due to Seller through the Kronos netting system.
13. Product Warranties. Seller warrants that at the time of delivery to
Distributor, the Products shall conform in all material respects to the
specifications for such Products published by Seller. Seller further
warrants that it will convey to Distributor good title to the Products free
from any lawful encumbrance. Seller MAKES NO WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR USE, NOR IS THERE ANY OTHER EXPRESS OR IMPLIED
WARRANTY.
14. Returns and Adjustments. In the event of a breach of the warranty set forth
herein, Seller and Distributor shall negotiate in good faith to reach an
equitable Product replacement or Price adjustment.
15. Product Allocation. Distributor receives all customer orders and places
such orders with Seller. Seller may accept or reject an order. In the event
of Seller's inability to supply the total requirements for the Products
specified in Distributor's order, Seller may allocate its available supply
of Products among any or all purchasers on such basis as Seller, in its
reasonable discretion, may deem fair and practical.
16. Distributor Non-Agent. Distributor is an independent contractor of Seller.
Nothing in this Agreement shall be construed to constitute or designate
Distributor or its agents as an agent or legal representative of Seller for
the purpose of binding Seller to any representation, commitment or
agreement or express or implied warranty made by Distributor.
17. Term. The term of this Agreement shall begin on the date first written
above (the "effective date") and shall continue in full force and effect
for one year from the effective date, subject to automatic renewal for a
consecutive one year term, unless terminated pursuant to the terms of this
Agreement.
18. Termination
(a) Without Cause. Either Seller or Distributor may terminate this
Agreement at any time by giving written notice of termination, via
Registered or Certified Mail, to the other party at least one hundred
and eighty (180) days prior to the effective date of termination. This
Agreement may be terminated for any reason or no reason and with or
without cause.
(b) For Cause. This Agreement may be terminated if either party shall
violate a material term of this Agreement and fail to discontinue the
violation or to cure the violation within thirty (30) days after the
receipt of written notice of the violation.
19. Limitation of Liability. In no event shall either party be liable to the
other for any type of indirect, special, consequential, exemplary, or
punitive damages, including but not limited to loss of profit or revenue or
loss of operating time or production.
20. Force Majeure. In the event of war, fire, flood, strike, labor trouble,
breakage, or failure of performance of equipment, or shortage or inadequacy
of raw materials, supplies or equipment, accident, riot, act of
governmental authority, acts of God, or other similar contingencies beyond
the reasonable control of Seller interfering with Seller' production,
supply, transportation or use of raw materials of Products, or in the event
of inability to obtain, on terms deemed by Seller to be practicable, any
raw material (including energy source) used in connection with production
of Products, quantities so affected shall be eliminated from quantities
ordered without any liability of Seller, but the terms shall otherwise
remain unaffected. Seller may, during any period of shortage, due to any of
the causes indicated in this paragraph, allocate its available supply of
Products among any or all purchasers on such basis as Seller, in its
reasonable discretion, may deem fair and practical.
21. Assignments; Amendment. This Agreement shall not be assigned by Distributor
in whole or in part without the prior written consent of Seller. This
Agreement may be amended at any time by the mutual consent of both parties.
22. Entirety. All Schedules and Exhibits to this Agreement are incorporated by
reference herein and shall form a part of this Agreement as though
expressly set forth herein. There is no understanding, representation, or
warranty of any kind expressed or implied, not expressly set forth in this
Agreement. No modification of this Agreement shall be of any force or
effect unless in writing signed by the party to be bound.
IN WITNESS WHEREOF, the parties below have executed this agreement as of the
date first written above.
DISTRIBUTOR:
KRONOS DENMARK ApS
By:/s/ Volker Roth By:/s/ Andrew Kasprowiak
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Name: Volker Roth Name: Andrew Kasprowiak
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Title: Title:
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KRONOS EUROPE S.A./N.V.
By:/s/ Erik van der Auwera By:/s/ Henry Basson
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Name: Erik van der Auwera Name: Henry Basson
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Title: Title:
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KRONOS TITAN GmbH
By:/s/ Volker Roth By:/s/ Ufert Fiand
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Name: Volker Roth Name: Ufert Fiand
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Title: Title:
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KRONOS LIMITED
By:/s/ Paul Turner
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Name: Paul Turner
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Title:
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SOCIETE INDUSTRIELLE DU TITANE, S.A.
By:/s/ Thomas Cerny
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Name:Thomas Cerny
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Title:
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KRONOS BV
By:/s/ Erik van der Auwera By:/s/ Henry Basson
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Name: Erik van der Auwera Name: Henry Basson
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Title: Title:
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KRONOS (US), INC.
By:/s/ Gregory M. Swalwell
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Name: Gregory M. Swalwell
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Title:Vice President Finance; Chief FInancial OFficer
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KRONOS CANADA, INC.
By:/s/ Antoine Doan
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Name: Antoine Doan
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Title:
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SELLER:
KRONOS TITAN GmbH
By:/s/ Volker Roth By:/s/ Ufert Fiand
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Name: Volker Roth Name: Ufert Fiand
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Title: Title:
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KRONOS EUROPE S.A./N.V.
By:/s/ Erik van der Auwera By:/s/ Henry Basson
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Name: Erik van der Auwera Name: Henry Basson
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Title: Title:
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KRONOS TITAN AS
By:/s/ Terje Karlsen By:/s/Per Thoen
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Name: Terje Karlsen Name: Per Thoen
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Title: Title:
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KRONOS (US), INC.
By:/s/ Gregory M. Swalwell
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Name: Gregory M. Swalwell
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Title:Vice President Finance; Chief FInancial OFficer
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KRONOS CANADA, INC.
By:/s/ Antoine Doan
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Name: Antoine Doan
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Title:
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SCHEDULE 1
SELLER
The following entities are each a "Seller" under the Agreement
1. Kronos Titan GmbH
2. Kronos Europe S.A./N.V.
3. Kronos Canada, Inc.
4. Kronos Titan AS
5. Kronos (U.S.), Inc.
SCHEDULE 2
DISTRIBUTOR
The following entities are each a "Distributor" under the Agreement. With
respect to each entity listed below that is also listed as a "Seller" on
Schedule 1 attached hereto, the parties understand and agree that such entity is
included in the Agreement for purposes of selling to, or purchasing from, other
Distributors and Sellers, respectively, hereunder and not itself.
1. Kronos Denmark ApS
2. Kronos (US), Inc.
3. Kronos Canada, Inc.
4. Kronos Europe S.A./N.V.
5. Kronos Titan GmbH
6. Kronos Limited
7. Societe Industrielle Du Titane, S.A.
8. Kronos BV
SCHEDULE 3
TERRITORY
Each Distributor is authorized to sell the Products listed below in each
"Territory" listed below.
1. Kronos Denmark ApS: Denmark.
2. Kronos (US), Inc.: U.S., Mexico
3. Kronos Canada, Inc.: Canada
4. Kronos Europe S.A./N.V.: Belgium, Luxembourg
5. Kronos Titan GmbH: Germany
6. Kronos Limited: the United Kingdom, Ireland
7. Societe Industrielle Du Titane, S.A.: France
8. Kronos BV: the Netherlands
SCHEDULE 4
PRICING
1. The Price (except as set forth in 2 below) for each Distributor shall be
the average realized market price of the Products to all customers (after
discounts and rebates) less:
a. Customs and Duties
b. 7% margin (% of averaged realized market price)
2. The Price for Products purchased by Kronos Limited from Kronos BV shall be
the average realized market price of the Products to all customers (after
discounts and rebates) less:
a. 8% margin (% of averaged realized market price)
The average realized market price is the average invoiced price of all sales
during the quarter.