Exhibit 10.55
SALES REPRESENTATIVE AGREEMENT
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THIS SALES REPRESENTATIVE AGREEMENT is made and entered into as of January
4, 2000 (the "Effective Date"), by and between GIFT SERVICES, LLC, a Delaware
limited liability company having its offices at Four Xxxx Xxxxx Xxxx, Xxxxxxxx,
Xxxxxxxxxxx 00000, Telecopy No. 000-000-0000 ("LLC") and NEWSUB SPECIAL
SERVICES, INC., a Delaware corporation having its offices at Four Xxxx Xxxxx
Xxxx, Xxxxxxxx, Xxxxxxxxxxx 00000, Telecopy No. 000-000-0000 ("NewSub").
WITNESSETH:
In consideration of the mutual covenants and conditions herein contained,
and intending to be legally bound hereby, LLC and NewSub (the "Parties")
mutually agree as follows:
1. Appointment. LLC hereby appoints NewSub on an exclusive basis as its sole
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authorized sales representative to solicit orders for all products marketed,
promoted, distributed and/or sold by LLC, either directly or indirectly (the
"Products") during the term of this Agreement from any purchasers anywhere in
the world.
2. Commissions.
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(a) On Friday of each week, LLC shall pay NewSub a commission for each Product
sold by LLC for the week which ended thirteen (13) days earlier on a Saturday.
The relevant commission shall be a stated amount in U.S. Dollars, as indicated
in the schedule in Exhibit A attached hereto. This commission for a Product is
payable upon LLC shipping such Product to a third party.
(b) NewSub shall not be entitled to a commission on any order solicited by
NewSub but which is rejected by LLC, regardless of the reason for LLC's
rejection.
(c) LLC agrees to make and keep full and accurate books and records in
sufficient detail to enable commissions payable hereunder to be determined. On
30 days' prior written notice to LLC, independent certified public accountants
nominated and paid by NewSub shall have full access to the books and records of
LLC pertaining to activities under this Agreement and shall have the right to
make copies therefrom at NewSub's expense. Said certified public accountants
shall have such access at all reasonable times and from time to time during
normal business hours. Prompt adjustment shall be made by LLC to compensate for
any errors or omissions disclosed by such audit. NewSub shall bear the expense
of such audit, unless such audit reveals that less than 95% of the commissions
due for the audited period were paid by LLC, in which case LLC shall bear
reasonable out-of-pocket expenses incurred by NewSub in connection with such
audit.
3. Additional Services
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(a) In addition to the solicitation of orders for the Products described in
Section 2 above, NewSub shall provide or otherwise make available to LLC, as and
when requested by LLC, certain general corporate services, including, but not
limited to accounting, corporate communications, financial and other
administrative staff functions, and arrange for administration of insurance and
employee benefit programs and certain other services to be agreed upon by the
Parties hereto (collectively, the "Services"). The Services which may be
requested by LLC shall include (but not be limited to) the following:
(i) Insurance Services. Arranging for liability, property and casualty,
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political risk, and other normal business insurance coverage.
(ii) Corporate Bookkeeping Services. Maintenance of routine corporate
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bookkeeping, including, without limitation, payroll and accounts.
(iii) Other Services. Services in addition to those enumerated in
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Sections 3(a)(i) and (ii) above including, but not limited to, (A) arranging for
printing of credit card insert media and fulfillment mailing labels; (B)
reviewing and approving LLC"s payment of postage for Product mailings to end-
users; (C) reviewing and approving LLC"s payment of credit card issuer media
fees; (D) opening and sorting Product orders and performing data entry of
customer responses; (E) arranging for customer service through a toll-free
telephone number in the United States with respect to refund requests and
billing questions; (F) reviewing and approving LLC"s payment of database
management, operation and system enhancement fees; (G) reviewing and approving
credit-card processing fees; (H) arranging for routine administrative services,
corporate information services and treasury and other financial services; (I)
providing office space; and (J) arranging for LLC"s fulfillment mailing services
and approving LLC"s payment for such services, all if and to the extent
reasonably requested by LLC. Whenever NewSub provides fulfillment mailing
services to LLC, NewSub shall have the right to insert promotional materials
into each such package. NewSub shall be permitted to incorporate such materials
into the LLC"s fulfillment mailing labels.
(b) For performing Services, NewSub will charge LLC a quarterly fee in U.S.
Dollars equal to one hundred percent (100%) of the aggregate NewSub Costs (as
hereinafter defined) incurred in connection with the Services rendered during
such quarter. For purposes of this Section 3, the term "NewSub Costs" shall mean
NewSub's fully-allocated cost of providing Services to LLC, including out-of-
pocket costs and a pro-rata portion of the salary and benefits of the NewSub
employees providing such Services. NewSub's charge for Services will be
determined and billed within 30 days after the end of each calendar quarter. The
charges will be due when billed, and shall be paid no later than 30 days from
the date of billing.
(c) When Services are rendered by third party service providers selected by
NewSub to or for the benefit of LLC, all charges and related costs of such third
parties shall be billed by such third party directly to LLC and shall be paid by
LLC directly to such third party.
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(d) NewSub shall prepare and deliver to LLC a statement, along with a
declaration, signed by the chief financial officer of NewSub or its parent
company, attesting to the accuracy of such statement, confirming that any
amounts charged by NewSub during the previous financial year pursuant to Section
3(b) above were calculated in accordance with the terms of this Agreement.
4. Relationship of the Parties.
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(a) NewSub shall be considered to be an independent contractor. The
relationship between LLC and NewSub shall not be construed to be that of
employer and employee, nor to constitute a partnership, joint venture or agency
(except to the extent provided in Section 3(c) above) of any kind. Except to the
extent provided in Section 3(c) above, neither Party shall have the right to
enter into any contracts or commitments in the name of, or on behalf of, the
other Party, or to bind the other Party in any respect whatsoever.
(b) Except to the extent provided in Section 3 above, LLC shall not reimburse
NewSub for any expenses which NewSub might incur in connection with: (i)
soliciting sales of the Products; or (ii) otherwise discharging its
responsibilities under this Agreement.
(c) Prices furnished by LLC to NewSub for presentation to customers shall be
computed so as to include the commissions payable to NewSub hereunder. LLC may
change such prices from time to time, in its sole discretion and without prior
notice. Unless prior written approval is granted by LLC, NewSub shall quote only
the prices furnished by LLC and then in effect.
(d) All commissions and other amounts due and owing to NewSub hereunder, but
not paid by LLC on the due date thereof, shall bear interest at the rate which
is the lesser of: (i) twelve per cent (12%) per annum; and (ii) the maximum
lawful interest rate permitted under applicable law. Such interest shall accrue
from the date on which each such commission or amount becomes due and owing
until payment thereof in full.
(e) Notwithstanding anything in this Agreement to the contrary, no part of any
commission or amount payable to NewSub hereunder may be reduced due to any
counterclaim, set-off, adjustment, chargeback or other right which LLC might
have against NewSub, any other party or otherwise.
5. Other Obligations of NewSub.
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(a) NewSub agrees to accept demonstration samples or products made available by
LLC for the sole purpose of increasing sales of the Products. NewSub agrees to
pay for all shipping, trucking, handling, insurance, customs duties, taxes and
other related charges and expenses involved with LLC"s shipping on a collect
basis such demonstration samples or products. In the event of expiration or
termination of this Agreement, such demonstration samples and/or products in the
control of NewSub shall be either returned to LLC in their original condition
(all charges pre-paid) or shipped to a third party (all charges collect) as LLC
shall direct.
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(b) NewSub agrees to furnish LLC with credit information satisfactory to LLC in
connection with customers and potential customers.
(c) NewSub shall not obligate or purport to obligate LLC by issuing or making
any warranties or guaranties with respect to the Products to any third party.
(d) NewSub shall develop all creative materials for marketing the Products
based on information supplied to NewSub by LLC and substantiated by Aspen
Marketing, Inc. ("Aspen"). LLC shall have the right to approve all such
materials, which approval shall not be unreasonably withheld or delayed.
(e) NewSub shall provide estimated monthly and quarterly sales volumes by
specific Product and estimated annual projections of total unit volume.
(f) NewSub shall discuss with LLC some of its new product ideas for marketing
developed by NewSub, in order to determine whether LLC is interested in
developing and supplying such new products in accordance with the terms of this
Agreement.
6. Other Obligations of LLC.
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(a) LLC agrees to keep NewSub informed about developments with respect to the
Products which may be useful to NewSub in the performance of its duties under
this Agreement.
(b) LLC represents that Aspen has secured product liability insurance covering
the Products, as detailed on the insurance certificate attached as Exhibit C
hereto. LLC agrees that it shall cause Aspen at all times during the term of
this Agreement to: (i) maintain with a reputable insurance company doing
business in the United States and Canada and reasonably acceptable to NewSub,
product liability insurance covering the Products, providing at least the type
and limits of coverage set forth on the attached certificate; and (ii) to name
NewSub as an additional insured on such insurance. LLC also agrees to cause
Aspen to furnish NewSub with certificates of such insurance, including a
commitment on the part of the insurance company to notify NewSub at least thirty
(30) days before cancellation or a material change of such insurance.
7. Trademarks, Trade Names and Service Marks.
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(a) Right to Use. NewSub may use LLC's trade names, trademarks and service
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marks listed in Exhibit B attached hereto and those other trade names,
trademarks and service marks developed by LLC in the ordinary course of business
(with which Exhibit B may be updated from time to time) (hereinafter referred to
as the "Trademarks") on a non-exclusive basis only for the duration of this
Agreement and solely for display or advertising purposes in connection with
soliciting orders for the Products in accordance with this Agreement. NewSub
shall not at any time do or permit any act to be done which may in any way
impair the rights of LLC in the Trademarks.
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(b) Quality Control. In order to comply with LLC's quality control standards,
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NewSub shall: (i) use the Trademarks in compliance with all relevant laws and
regulations; (ii) accord LLC the right to inspect during normal business hours,
without prior advance notice, any facility used by NewSub in connection with
efforts to solicit orders for the Products in order to confirm that NewSub's use
of such Trademarks is in compliance with this provision; and (iii) not modify
any of the Trademarks in any way and not use any of the Trademarks on or in
connection with any goods or services other than the Products.
8. Confidentiality Maintained.
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(a) Each party agrees that the disclosing party (the "Disclosing Party") has a
proprietary interest in any information provided to the party receiving such
information (the "Receiving Party") by the Disclosing Party, whether in
connection with this Agreement or otherwise, which is (i) a trade secret,
confidential or proprietary information and (ii) not publicly known
("Proprietary Information). Specifically, but without limitation, LLC agrees
that NewSub has a proprietary interest in the names and addresses of customers
solicited by NewSub (as well as those customers" customers and cardholders)
pursuant to this Agreement. During and after the term of this Agreement, the
Receiving Party shall not disclose the Proprietary Information of the Disclosing
Party except to those of the Receiving Party"s agents, employees, subcontractors
and consultants to whom it is necessary in order to discharge the Receiving
Party"s duties pursuant to this Agreement. During and after the term of this
Agreement, the Receiving Party, its agents, employees, subcontractors and
consultants shall not use the Proprietary Information of the Disclosing Party
for any purpose other than in connection with discharging the Receiving Party"s
duties pursuant to this Agreement. Upon termination or expiration of this
Agreement for any reason, the Receiving Party shall, at its expense, either
promptly return to the Disclosing Party, or destroy, all of the Proprietary
Information of the Disclosing Party in any form whatsoever which it may have in
its possession, custody or control (whether direct or indirect). During the term
of this Agreement and thereafter, the Disclosing Party"s Proprietary Information
shall remain the exclusive property of the Disclosing Party.
(b) Notwithstanding anything contained in this Agreement to the contrary, the
Receiving Party shall not be liable for a disclosure of the Proprietary
Information of the Disclosing Party, if the information so disclosed: (i) was in
the public domain at the time of disclosure without breach of this Agreement; or
(ii) was known to or contained in the records of the Receiving Party from a
source other than the Disclosing Party at the time of disclosure by the
Disclosing Party to the Receiving Party; or (iii) was received from a third
party without such third party, to the Receiving Party"s knowledge, breaching
any confidentiality obligations to the Disclosing Party; or (iv) was disclosed
pursuant to court order or as otherwise required by law, after giving the
Disclosing Party advance notice, if possible, of such required disclosure.
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9. Term and Termination.
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(a) The term of this Agreement shall begin on the Effective Date. The term of
this Agreement shall expire on the third (3/rd/) anniversary date of the
Effective Date, unless terminated earlier pursuant to the terms of this Section
9.
(b) A Party may terminate this Agreement for cause under the following
conditions:
(i) Upon the occurrence of a material breach of any obligation hereunder
by either Party and the failure of such breaching Party to promptly pursue
(within fifteen (15) days for payment breaches and within thirty (30) days for
all other breaches after receiving written notice thereof from the non-breaching
Party) a reasonable remedy designed to cure (in the reasonable judgment of the
non-breaching Party) such material breach, this Agreement may be terminated by
the non-breaching Party by giving written notice of termination to the breaching
Party, such termination being immediately effective upon the giving of such
notice of termination; or
(ii) Upon the filing of a petition in bankruptcy, insolvency or
reorganization by the Party subject to such event, or the filing of a petition
in bankruptcy, insolvency or reorganization against the Party subject to such
event (which petition is not discharged within thirty (30) days after such
filing), or the Party subject to such event becoming subject to a composition
for creditors, whether by law or agreement, or the Party subject to such event
going into receivership or otherwise becoming insolvent, this Agreement may be
terminated by the other Party by giving written notice of termination to the
Party subject to such event.
(c) Either Party may terminate this Agreement at any time, without cause, by
giving the other Party one hundred twenty (120) days prior written notice of
such termination.
(d) This Agreement shall terminate automatically upon the termination of LLC.
(e) Expiration or termination of this Agreement shall not affect the obligation
of LLC to pay NewSub (i) all amounts owing or to become owing as a result of
Products shipped by LLC on or before the date of such expiration or termination;
or (ii) amounts payable to NewSub in accordance with Section 3(b) above.
(f) In the event of a termination of this Agreement or upon expiration of this
Agreement, neither Party shall have any obligation to the other Party, or to any
employee of the other Party, for compensation or for damages of any kind, on
account of the loss by the other Party or such employee of present or
prospective sales, investments, compensation or goodwill as a result of such
termination or expiration (other than damages arising from any breach prior
thereto). Each Party, for itself and on behalf of each of its employees, hereby
waives any rights which may be granted to it or them under the laws and
regulations of any country which are not granted to it or them by this
Agreement. Each Party hereby indemnifies and holds the other Party harmless from
and against any and all claims, costs, damages and liabilities whatsoever
asserted by any employee, agent or representative of such Party under any
applicable termination, labor, social security or other similar laws or
regulations.
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(g) Notwithstanding anything else in this Agreement to the contrary, the
Parties agree that Sections 2(c), 4(d), 8, 9(e), (f) and (g) and 10 shall
survive the termination or expiration of this Agreement, as the case may be.
10. Miscellaneous
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(a) This Agreement sets forth the entire agreement between LLC and NewSub
regarding the subject matter hereof, and supersedes and cancels any previous
agreements or understandings, whether oral, written or implied, heretofore in
effect between LLC and NewSub and sets forth the entire agreement between LLC
and NewSub. No modification or change may be made in this Agreement except by
written instrument duly signed by a duly authorized representative of each
Party.
(b) This Agreement may not be assigned, delegated, sublicensed or transferred,
whether by operation of law or otherwise, by either Party without the prior
written consent of the other Party, and any attempted assignment, delegation,
sublicense or transfer without such written consent shall be void and of no
effect; provided, however, that neither Party"s consent shall be required with
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respect to (i) any assignment, delegation or transfer by the other Party (the
"Assigning Party") to (A) an Affiliate of the Assigning Party or (B) an acquirer
of all or substantially all of the stock or assets of (1) NewSub related to
solicitations of orders for the Products or (2) LLC related to the marketing,
promotion, distribution and/or selling of the Products, through purchase,
merger, consolidation or otherwise; or (ii) any pledge as collateral to, or any
subsequent assignment to or by, any lending institution(s) providing loan
facilities to the Assigning Party or its Affiliates. To the extent permitted by
this provision, this Agreement shall inure to the benefit of the successors and
permitted assigns of each Party.
(c) This Agreement shall be shall be construed and governed according to, and
any arbitration hereunder shall apply, the laws of the State of New York,
excluding its conflicts of laws principles.
(d) Any dispute, controversy or claim arising out of or relating to this
Agreement or to a breach hereof, including its interpretation, performance or
termination, shall be finally resolved by arbitration. The arbitration shall be
conducted by three (3) arbitrators, one to be appointed by Aspen, one to be
appointed by NewSub and a third being nominated by the two arbitrators so
selected or, if they cannot agree on a third arbitrator, by the President of the
American Arbitration Association ("AAA"). The arbitration shall be conducted in
English and in accordance with the commercial arbitration rules of the AAA. The
arbitration, including the rendering of the award, shall take place in New York,
New York, and shall be the exclusive forum for resolving such dispute,
controversy or claim. The decision of the arbitrators shall be binding upon the
Parties hereto, and the expense of the arbitration (including without limitation
the award of attorneys' fees to the prevailing Party) shall be paid as the
arbitrators determine. The decision of the arbitrators shall be executory, and
judgment thereon may be entered by any court of competent jurisdiction.
Notwithstanding anything contained in this Section 10(d) to the contrary: (i)
application may be made to any court for a judicial acceptance of the award or
order
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of enforcement; and (ii) NewSub shall have the right to institute judicial
proceedings against LLC or anyone acting by, through or under LLC, in order to
enforce NewSub"s rights hereunder through reformation of contract, specific
performance, injunction or similar equitable relief.
(e) All notices given under this Agreement shall be in writing and shall be
addressed to the Parties at their respective addresses set forth above to the
attention of Xxxxxxx Xxxxxx, with a copy to Xxxx Xxxxxx, Xxxxxx X. Xxxxxxx and
Xxxxx X. Xxxxx at Aspen Marketing, Inc., 00000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000,
Xxx Xxxxxxx, Xxxxxxxxxx 00000, Telecopy No. 000-000-0000, on behalf of LLC and
to the attention of Xxxxxxx Xxxx, with a copy to Xxxxxxxx Xxxxxx and Xxxxxxx
Xxxxxxxxx, on behalf of NewSub. Notices shall be deemed given only if delivered
by hand, sent by facsimile transmission or mailed by registered or recorded
delivery U.S. mail or overnight courier, return receipt requested. Any such
notice if given or made by U.S. mail or overnight courier shall be deemed to
have been received on the earlier of the date actually received and the date
three (3) calendar days after the same was posted (and in proving such it shall
be sufficient to prove that the envelope containing the same was properly
addressed and posted as aforesaid) and if given or made by telecopy transmission
shall be deemed to have been received at the time of dispatch, unless such date
of deemed receipt is not a day on which banks are open for business in Stamford,
Connecticut (a "Business Day"), in which case the date of deemed receipt shall
be the next succeeding Business Day. Either Party may change its address, its
telecopy number or contact person for purposes of this Agreement by giving the
other Party written notice of its new address, telecopy number or contact
person.
(f) None of the conditions or provisions of this Agreement shall be held to
have been waived by any act or knowledge on the part of either Party, except by
an instrument in writing signed by a duly authorized officer or representative
of such Party. Further, the waiver by either Party of any right hereunder or the
failure to enforce at any time any of the provisions of this Agreement, or any
rights with respect thereto, shall not be deemed to be a waiver of any other
rights hereunder or of any breach or failure of performance of the other Party.
(g) Each of the Parties covenants that all of its activities under or pursuant
to this Agreement shall comply with all applicable laws, rules and regulations.
(h) If any provision of this Agreement is declared invalid or unenforceable by
a court having competent jurisdiction, it is mutually agreed that this Agreement
shall endure except for the part declared invalid or unenforceable by order of
such court. The Parties shall consult and use their best efforts to agree upon a
valid and enforceable provision which shall be a reasonable substitute for such
invalid or unenforceable provision in light of the intent of this Agreement.
(i) Taxes, whether in the United States or any other country, now or hereafter
imposed with respect to the transactions contemplated hereunder (with the
exception of income taxes or other taxes imposed upon NewSub and measured by the
gross or net income of NewSub) shall be the responsibility of LLC and, if paid
or required to be paid by NewSub, the amount thereof shall be added to the
amounts payable to NewSub hereunder.
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(j) This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
(k) All written material, correspondence, notices and oral assistance supplied
by either Party hereunder shall be in the English language.
(l) Headings are for reference purposes only and shall not be used in order to
interpret or construe this Agreement.
(m) For the purposes of this Agreement, "Affiliates" shall mean all companies,
natural persons, partnerships and other business entities controlled by, under
common control with or controlling either Party to this Agreement.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the Parties hereto have signed this Agreement.
GIFT SERVICES, LLC
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: President
Date: 1/4/00
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NEWSUB SPECIAL SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: President
Date:
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EXHIBIT A Schedule of Commissions
The Parties agree that the initial commission payable to NewSub on the sale of
each Product in the year 2000 shall be US$0.85. This commission rate shall be
adjusted prospectively on a quarterly basis by mutual written agreement of the
Parties, based upon changes in response rates, average Product price and
associated costs. The Parties agree that the commissions shall be as set forth
below, during the years and at the volumes specified, unless the Parties agree
in writing otherwise:
Year Units Sold Commission
2000 1 to 10,000,000 US$0.85
10,000,001 to 20,000,000 0.90
20,000,001 to 25,000,000 0.95
25,000,001 to 30,000,000 1.00
2001 1 to 10,000,000 US$0.89
10,000,001 to 20,000,000 0.94
20,000,001 to 27,000,000 0.98
27,000,001 to 30,000,000 1.04
2002 1 to 10,000,000 US$0.92
10,000,001 to 20,000,000 0.97
20,000,001 to 30,000,000 1.00
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EXHIBIT B Trademarks, Trade Names and Service Marks
[To Be Provided]
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EXHIBIT C Certificate of Insurance
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AMENDMENT AGREEMENT
This Amendment Agreement ("Amendment") is made by and between Gift Services,
LLC, a Delaware limited liability company ("LLC"), and Synapse Solutions, Inc.,
a Delaware corporation, formerly known as NewSub Special Services, Inc.,
("NewSub"), effective April 1, 2000.
WHEREAS, NewSub and LLC entered into a Sales Representative Agreement
dated as of January 4, 2000 (the "Agreement"); and
WHEREAS, NewSub and LLC wish to amend the Agreement in certain respects.
NOW, THEREFORE, in consideration of the mutual promises and covenants set
forth herein, the parties hereby agree as follows:
1. Subsections 3(b) and (c) of the Agreement are amended and restated as
follows:
"(b) For performing Services, NewSub shall be compensated as provided in
Exhibit A.
(c) When Services are rendered by third party service providers selected
by NewSub to or for the benefit of LLC, all charges and related costs of
such third parties shall be billed by such third party directly to LLC and
shall be paid by LLC directly to such third party. In the event NewSub pays
on behalf of LLC the charges and costs of any such third party service
provider, LLC shall promptly reimburse NewSub the amount of such payment."
2. Subsection 3(d) of the Agreement is deleted.
3. Exhibit A to the Agreement shall be amended and restated as set forth in
Exhibit A to this Amendment.
4. Section 9 (e) of the Agreement is amended and restated as follows:
"(e) Expiration or termination of this Agreement shall not affect the
obligation of LLC to pay NewSub all amounts owing or to become owing as a
result of Products shipped by LLC on or before the date of such expiration
or termination."
5. The Agreement, as amended by this Amendment, shall remain in full force and
effect.
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Page 1 of 3
IN WITNESS WHEREOF, NewSub and LLC, intending to be legally bound by the
terms of this Amendment, have caused this Amendment to be executed by their duly
authorized representatives effective on the date first set forth above.
Synapse Solutions, Inc. Gift Services, LLC
(formerly NewSub Special Services, Inc.)
By: /s/ Xxxxxxx X. Xxxx By: /s/ Xxxxxxx Xxxxxx
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Name Xxxxxxx Xxxx Name Xxxxxxx Xxxxxx
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Title President Title President
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Dated: March 28, 2000 Dated: March 28, 2000
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Page 2 of 3
EXHIBIT A Schedule of Commissions
The parties agree that the initial commission payable to NewSub on the sale of
each Product in the year 2000 shall be US$0.85. This commission rate shall be
adjusted prospectively on a quarterly basis by mutual written agreement of the
Parties, based upon changes in response rates, average Product price and
associated costs, including, without limitation, NewSub's fully-allocated cost
of providing Services (as defined in Section 3 of this Agreement) to LLC,
including out-of-pocket costs and a pro-rata portion of the salary and benefits
of the NewSub employees providing such Services. The Parties agree that the
commissions shall be as set forth below, during the years and at the volumes
specified, unless the Parties agree in writing otherwise:
Year Units Sold Commission
2000 1 to 10,000,000 US$ 0.85
10,000,001 to 20,000,000 0.90
20,000,001 to 25,000,000 0.95
25,000,001 to 30,000,000 1.00
2001 1 to 10,000,000 US$ 0.89
10,000,001 to 20,000,000 0.94
20,000,001 to 27,000,000 0.98
27,000,001 to 30,000,000 1.04
2002 1 to 10,000,000 US$ 0.92
10,000,001 to 20,000,000 0.97
20,000,001 to 30,000,000 1.00
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Page 3 of 3
AMENDMENT AGREEMENT
This Amendment Agreement ("Amendment") is made by and between Gift
Services, LLC, a Delaware limited liability company ("LLC"), and Synapse
Solutions, Inc., a Delaware corporation, formerly known as NewSub Special
Services, Inc., ("NewSub"), effective April 1, 2000.
WHEREAS, NewSub and LLC entered into a Sales Representative Agreement dated
as of January 4, 2000, as amended effective April 1, 2000 (the "Agreement"); and
WHEREAS, NewSub and LLC wish to amend the Agreement in certain respects.
NOW, THEREFORE, in consideration of the mutual promises and covenants set
forth herein, the parties hereby agree as follows:
1. Exhibit A to the Agreement shall be amended and restated as set forth in
Exhibit A to this Amendment.
2. The Agreement, as further amended by this Amendment, shall remain in full
force and effect.
IN WITNESS WHEREOF, NewSub and LLC, intending to be legally bound by the
terms of this Amendment, have caused this Amendment to be executed by their duly
authorized representatives effective on the date first set forth above.
Synapse Solutions, Inc. Gift Services, LLC
(formerly NewSub Special Services, Inc.)
By: /s/ Xxxxxxxx X. Xxxxxx By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxxx X. Xxxxxx Name: Xxxxxxx Xxxxxx
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Title: Vice President Title: President
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Dated: 6/27/00 Dated: 6/26/00
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Page 1 of 2
SCHEDULE A Schedule of Commissions
The parties agree that the initial commission payable to NewSub on the sale of
each Product in the first calendar quarter of year 2000 shall be US $0.85 and
that the commission payable to NewSub in the second calendar quarter of the year
2000 shall be US $0.75. This commission rate shall be adjusted prospectively on
a quarterly basis by mutual written agreement of the Parties, based upon changes
in response rates, average Product price and associated costs, including,
without limitation, NewSub's fully-allocated costs of providing Services (as
defined in Section 3 of this Agreement) to LLC, including out-of-pocket costs
and a pro-rata portion of the salary and benefits of the NewSub employees
providing such Services. The Parties agree that the commissions shall be as set
forth below, during the years and at the volumes specified, unless the Parties
agree in writing otherwise:
Year Units Sold Commission
2000 1 to 10,000,00 US$ 0.75
10,000,001 to 20,000,000 0.90
20,000,001 to 25,000,000 0.95
25,000,001 to 30,000,000 1.00
2001 1 to 10,000,000 US$ 0.89
10,000,001 to 20,000,000 0.94
20,000,001 to 27,000,000 0.98
27,000,001 to 30,000,000 1.04
2002 1 to 10,000,000 US$ 0.92
10,000,001 to 20,000,000 0.97
20,000,001 to 30,000,000 1.00
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