Exhibit 10.5
AMENDED AND RESTATED EXCLUSIVE DISTRIBUTION AGREEMENT
THIS AMENDED AND RESTATED EXCLUSIVE DISTRIBUTION AGREEMENT (this "Agreement") is
entered into as of the 21ST of May, 2020, and is effective as of the 9TH day of
March, 2020 (the "Effective Date") by and between BIDI VAPOR, LLC, a Florida
limited liability company ("Manufacturer"), and KAIVAL BRANDS INNOVATONS GROUP,
INC., a Delaware corporation ("Distributor"). Manufacturer and Distributor are
each referred to herein as a "Party" and collectively, the "Parties."
RECITALS
WHEREAS, Manufacturer is in the business of developing electronic nicotine
delivery systems and related components (all such products whether now or
hereafter made available for sale by Manufacturer being hereinafter referred to
as the "Products").
WHEREAS, Distributor wishes to obtain, and Manufacturer is willing to grant
Distributor, an exclusive worldwide right to distribute the Products for sale
and resale to both retail level customers ("Retail Customers") and non-retail
level customers, including without limitation, to wholesale customers and
sub-distributors ("Non-Retail Customers").
WHEREAS, Manufacturer and Distributor previously entered into that certain
Exclusive Distribution Agreement, effective as of March 9, 2020 (the "Prior
Agreement").
WHEREAS, the Parties wish to amend and restate the Prior Agreement for purposes
of clarifying certain terms therein to more accurately reflect the Parties'
intentions and desire for this Agreement to be effective as of the date the
Prior Agreement was entered into.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
representations and agreements set forth herein, and other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged,
Manufacturer and Distributor, intending to be legally bound, hereby agree as
follows:
1.
APPOINTMENT; EXCLUSIVITY; MARKETING AND SUPPORT.
A.
Appointment and Exclusivity. Subject to the terms and
conditions set forth in this Agreement, Manufacturer hereby appoints Distributor
as its exclusive worldwide distributor of the Products. Distributor accepts the
appointment as Manufacturer's exclusive worldwide distributor of the Products
and agrees to buy for resale, upon the terms and conditions set forth herein,
the Products in such quantities as Distributor shall need to properly service
the market. Manufacturer represents and warrants that the appointment of and
sale of the Products to Distributor under this Agreement does not violate any
obligations or contracts of Manufacturer. As a condition of exclusivity,
Distributor agrees not to represent or sell other products, which Manufacturer
may reasonably determine to be competitive with the Products, without written
approval from Manufacturer. For purposes of clarification, during the term of
this Agreement, Manufacturer will not directly sell any Products to any person
(Retail Customer or Non-Retail Customer) other than to Distributor.
1
B.
Marketing and Support. Manufacturer will be solely
responsible to provide Distributor with all branding, logos, and marketing
materials to be utilized by Distributor in connection with Distributor's
marketing and promotion of the Products; provided, however, Distributor shall
bear all expenses related to reproduction and distribution of the same.
Distributor agrees to use its best efforts to promote, develop a market, sell,
and distribute the Products worldwide. Among such other actions as may