Exhibit 10.29
ADVANCED POWER TECHNOLOGY,
INC.
WORLDWIDE DISTRIBUTOR
AGREEMENT
This Agreement is made this 30th day
of October, 2003, by and between Advanced Power Technology, Inc., a
Delaware Corporation with its principal place of business at 405 S.
W. Columbia Street, Bend, Oregon 97702, U.S.A. and all its wholly
owned subsidiaries (hereinafter referred to as
“Company”), and Future Electronics, a company organized
and existing under the laws of New Brunswick with its principal
place of business at 237 Hymus Blvd, Pointe Claire, Quebec H9R 5C7
(hereinafter referred to as “Distributor”).
RECITALS
A.
Company is engaged in the business
of manufacturing and selling power transistors.
B.
Company wishes to supplement its own
sales efforts through the appointment of a non-exclusive and
independent distributor.
C.
Distributor wishes to act as a
distributor of Company’s products.
NOW, THEREFORE, in consideration of
the mutual promises, terms, provisions and conditions contained
herein, the parties hereto agree as follows:
Section 1 . Appointment of Distributor
.
Company hereby appoints Distributor,
and Distributor hereby accepts such appointment as a non-exclusive
and authorized distributor of Company during the term of this
Agreement for the sale of Company’s Products, as defined in
Section 2.1, from listed locations.
Section 2 . Products .
2.1 .
The products covered by this
Agreement shall be those identified on Exhibit “B,”
attached hereto (the “Products”).
2.2 .
Company may add Products to, or
delete Products from, Exhibit “B” upon written notice
to the Distributor.
2.3 .
Notwithstanding anything to the
contrary contained herein” Company reserves the right, in its
sole discretion and without notice, to modify specifications and
characteristics of its Products, to discontinue the distribution
and sale of such Products, and to cancel, modify or condition any
right of the Distributor to prevent a violation of law.
[ * ] = CONFIDENTIAL TREATMENT
REQUESTED
NORTH AMERICA DISTRIBUTOR AGREEMENT
1
Section 3 . Obligations of Distributor
.
During the term of this Agreement,
Distributor shall at all times use best efforts to enhance the
image and reputation of Company and the Products which are the
subject matter hereof, and agrees:
3.1 .
Distributor shall not disclose
information of Company considered by Company to be confidential or
proprietary including, but not limited to, customer and price lists
and data regarding the design or methods of manufacture of the
Products and will not use any such information except as
contemplated by this Agreement. Such information will be
appropriately marked or identified by Company and the obligation of
Distributor not to disclose or improperly use such information will
survive the termination of this Agreement. Upon the termination of
this Agreement or the earlier request of Company, all such
information will be promptly returned to Company. The restrictions
of this Section 3.1 are in addition to any other agreement between
the parties with respect to the protection and use of
information.
3.2 .
Distributor agrees that they will
comply with all applicable federal, state, and local laws or
regulations in performing any act arising out of or in connection
with this Agreement. Distributor agrees to maintain such records as
are required by all applicable laws and regulations and this
Agreement and to promptly provide such records or written
assurances as may be required by Company in connection
therewith.
The parties agree that each will use
its best efforts to secure any licenses or permits as may now or
hereafter be required in connection with the performance of its
obligations under this Agreement, but this Agreement shall not be
deemed to require any performance on the part of either party which
cannot lawfully be done pursuant to the laws and regulations
referred to above.
3.3 .
Distributor shall sell only
Company’s Products that bear Company’s markings or
trademarks and will not alter, modify or in any way change the
Products, marking or trademarks thereon without prior written
approval of Company.
3.4 .
Distributor shall offer and sell
Products only in accordance with specifications and warranty
schedules provided by Company.
3.5 .
Distributor shall provide Company by
the 15th working day of each month a report detailing the total
sales and inventory levels of the Products for the prior
month.
3.6 .
Distributor shall use its best
efforts to actively promote the sale of the Products to customers
in its territory. Such efforts shall include, but not be limited
to, promptly servicing all customer accounts, soliciting new
customer accounts, and cooperating and participating in
Company’s advertising and sales promotional
programs.
3.7 .
Distributor shall provide and
maintain, without expense to Company, a suitable place of business
with adequate facilities and sufficient personnel for the sale and
distribution of the Products and to fulfill all other additional
objectives agreed to in writing by Company and
Distributor.
[ * ] = CONFIDENTIAL TREATMENT
REQUESTED
2
3.8 .
Distributor shall pay all fees,
taxes and duties which may be imposed on the Products purchased by
Distributor. To the extent that Company must pay any fees, taxes or
duties on Products sold to Distributor, Distributor shall promptly
reimburse Company.
3.9 .
Distributor shall refrain from any
activities which are illegal, unethical, or which might damage
Company’s reputation.
3.10 .
Distributor shall fully comply with
all agreements with Company, including without limitation, the
obligations to pay amounts due when due.
3.11 .
Distributor shall use its best
efforts to consolidate purchase orders to promote efficiency and
reduce supporting documentation.
Section 4 . Obligations of
Company.
4.1
Company shall not disclose
information of Distributor considered by Distributor to be
confidential or proprietary including, but not limited to, customer
and price lists and will not use any such information except as
contemplated by this Agreement. Such information will be
appropriately marked or identified by Distributor and the
obligation of Company not to disclose or improperly use such
information will survive the termination of this Agreement. Upon
the termination of this Agreement or the earlier request of
Distributor, all such information will be promptly returned to
Distributor. The restrictions of this Section 4.1 are in addition
to any other agreement between the parties with respect to the
protection and use of information.
4.2 .
Company, in its sole discretion,
shall maintain the necessary personnel needed to fulfill the agreed
upon sales objectives of Company and Distributor.
4.3 .
Company shall use its best efforts
to manufacture sufficient quantities of Products to meet the
requirements of Distributor. Company shall consult with Distributor
regarding inventory levels, and shall advise Distributor of
promotional efforts to increase the sale of Products.
4.4 .
Company shall subject all Products
delivered to Distributor to its usual standards of quality control
and inspection and all Products sold or delivered under this
Agreement shall be subject to the limited warranty set forth in
paragraph 17 below.
Section 5 .
Deliveries
5.1 .
All deliveries of Products by
Company pursuant to this Agreement will be made EXW Company
facilities and designated subcontractors. Products will be
consigned to carriers for shipment to Distributor, however, upon
the written approval of Company and Distributor, Company will
consign Products to carriers for shipment directly to
Distributor’s customers.
[ * ] = CONFIDENTIAL TREATMENT
REQUESTED
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5.2 .
Minimum order quantities: The
minimum order quantities for all products shall be the standard
minimum order quantities in effect at the time of acceptance by
Company from the Distributor.
Section 6 .
Title and Risk of Loss
.
Title to and risk of loss of
Products sold hereunder shall pass to the Distributor upon delivery
to the carrier at the F.O.B. point.
Section 7 .
Price .
Company agrees to sell the Products
to Distributor at negotiated market prices or at the prices set
forth in the published Distributor Cost and Price Schedule. All
prices are subject to change by Company at any time upon written
notice to Distributor.
7.l .
If the price for any Product is
increased prior to full shipment of any Order, the price charged to
Distributor will be that in effect at the time of Company’s
acceptance of Distributor’s Order. If the price for any
Product is decreased, all Products shipped on or after the
effective date of any price decrease will be shipped and invoiced
at the price in effect at the time of shipment.
7.2 .
In order to assist Distributor in
competitive markets, Company will, under certain limited
circumstances, adjust the effective price of the Products to
Distributor. The unit price of any Product(s) as set forth in
Exhibit “B” shall be ultimately adjusted pursuant to
the following procedure: Distributor must contact Company, or
Company’s local representative, and provide to the same the
customer’s name, Company part number, quantity, delivery
schedule, price per unit requested by Distributor, resale price per
unit to customer and competitive products available in the market.
Upon acceptance by Company of the information and approval of
Distributor’s request for a price reduction, Company or
Company’s local representative shall provide Distributor with
the Company’s authorized “ship and debit” price
per unit for the particular order and the Company’s
authorization number. Within 30 days from the invoice date to
Distributor’s customer, Distributor shall provide Company
with a copy of the invoice, or a substitute deemed acceptable by
Company, and a debit memorandum with Company’s authorization
number to obtain a credit. Upon Company’s request,
Distributor shall produce for inspection the original invoice. Upon
satisfaction of the conditions set forth above, Company shall issue
to Distributor, within 30 days of receipt of the supporting
documentation set forth above, a credit. A credit will only be
issued for those amounts authorized.
Section 8 .
Payments .
Payment for Products delivered to
Distributor shall be in United States dollars and is within [ * ]
days of invoice date.
[ * ] = CONFIDENTIAL TREATMENT
