EXHIBIT 10.2
INTERNATIONAL SALES REPRESENTATIVE AGREEMENT
This International Sales Representative Agreement (the "Agreement") is
entered into in San Jose, California, as of January 1st, 2002 between Micro
Linear Corporation, a California corporation with principal offices at 0000
Xxxxxxxxx Xxxxx, Xxx Xxxx, Xxxxxxxxxx, 00000 ("Manufacturer"), and Teksel
Corporation, Ltd., having its principal place of business at 0-00-00 Xxxxxxx,
Xxxxxxx-xx, Xxxxx 000-0000 Xxxxx (hereinafter referred to as "Representative").
In consideration of the mutual promises contained herein, the parties
hereto agree as follows:
1. DEFINITIONS
(a) "Products" shall mean those products listed in Exhibit A attached
hereto and as amended from time to time. Products may be changed, abandoned or
added by Manufacturer, in its sole discretion, provided that Manufacturer gives
thirty (30) days prior written notice to Representative. Manufacturer shall be
under no obligation to continue the production of any Product, except as
provided herein.
(b) "Territory" shall mean those geographical areas set forth in Exhibit
B attached hereto.
(c) "House Accounts" shall mean those accounts in the Territory set
forth in Exhibit C attached hereto.
2. APPOINTMENT AND AUTHORITY OF REPRESENTATIVE
(a) Sales Representative. Subject to the terms and conditions herein,
Manufacturer hereby appoints Representative as Manufacturer's sales
representative for the Products in the Territory, and Representative hereby
accepts such appointment. Representative's sole authority shall be to solicit
orders for the Products in the Territory in accordance with the terms of this
Agreement. Representative shall not have the authority to make any commitments
whatsoever on behalf of Manufacturer.
(b) Direct Sales. Manufacturer reserves the right to market its products
directly within the Territory. For direct sales to House Accounts, Manufacturer
shall pay no compensation to Representative. For direct sales to any other
customers within the Territory, Manufacturer shall pay to Representative a
commission in accordance with Section 3 below.
(c) Territorial Limitation. Representative shall neither advertise the
Products outside the Territory nor solicit orders from outside the Territory.
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(d) Conflict of Interest. Representative shall pursue aggressive sales
policies and procedures to realize the maximum sales potential for the Products
in the Territory. Representative warrants to Manufacturer that it does not
currently represent or promote any lines or products that compete with the
Products. During the term of this Agreement, Representative shall not represent,
promote or otherwise try to sell within the Territory any lines or products
that, in Manufacturer's judgment, compete with the Products covered by this
Agreement. Representative agrees that breach of this provision shall constitute
cause for termination of this Agreement pursuant to Section 9 (c) below.
(e) Independent Contractors. The relationship of Manufacturer and
Representative established by this Agreement is that of independent contractors,
and nothing contained in this Agreement shall be construed to (i) give either
party the power to direct and control the day-to-day activities of the other,
(ii) constitute the parties as partners, joint ventures, co-owners or otherwise
as participants in a joint undertaking, or (iii) allow Representative to create
or assume any obligation on behalf of Manufacturer for any purpose whatsoever.
All financial and other obligations associated with Representative's business
are the sole responsibility of Representative. Representative shall be solely
responsible for, and shall indemnify and hold Manufacturer free and harmless
from, any and all claims, damages or lawsuits (including Manufacturer's
attorneys' fees) arising out of the acts of Representative, its employees or its
agents.
3. COMMISSION
(a) Sole Compensation. Representative's sole compensation under the
terms of this Agreement shall be a commission computed in accordance with the
schedule set forth in Exhibit D attached hereto.
(b) Basis of Commission. The commission shall apply to all orders
(except those from House Accounts) from the Territory that have been accepted by
Manufacturer and for which shipment has occurred, where such orders were
solicited by Representative. No commissions will be paid on buy / resell
(Distributor) orders taken by any distributor in the territory (even if
Representative receives the initial inquiry) unless otherwise agreed in writing
by Manufacturer. Commissions shall be computed on the net amount billed by
Manufacturer to the customer for O.E.M. orders. No commission shall be paid with
respect to charges for handling, freight, sales taxes, C.O.D. charges,
insurance, import duties, trade discounts, repairs, services, and the like. If
invoices are rendered in currencies other than United States dollars, the
commission shall be based upon the free market rate of exchange on the date that
Manufacturer pays the commission to Representative.
(c) Split Commissions. If more than one sales representative is involved
in the solicitation of a particular order, Manufacturer, in its sole discretion,
may split the commission for the order between or among the representatives
involved. In no event shall the total commission for the order exceed the amount
determined from Exhibit D attached hereto. Sales offices owned by Manufacturer
shall be considered as sales representatives in determining split commissions.
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(d) Payment. Payment of Commissions shall be in United States dollars
and shall be subject to all applicable governmental regulations and rulings,
including the withholding of any taxes required by law.
(e) Time of Payment. O.E.M. commissions shall be due and payable thirty
(30) days after the end of the calendar month in which Manufacturer ships the
Product.
(f) Commission Charge-Back. Manufacturer shall have the absolute right
to set such cash discounts, to make such allowances and adjustments, to accept
such returns from its customers, and to write off as bad debts such returns from
its customers, and to write off as bad debts such as overdue customer accounts
as it deems advisable. In each such case, Manufacturer shall charge back to
Representative's account any amounts previously paid or credited to it with
respect to such cash discounts, allowances, adjustments, returns or bad debts.
(g) Monthly Statements. Manufacturer shall submit to Representative
monthly statements of the commissions due and payable to Representative under
the terms of this Agreement, with reference to the specific invoices on which
the commissions are being paid.
(h) Inspection of Records. Representative shall have the right, at its
own expense and not more than once in any twelve (12) month period, to authorize
Representative's independent auditors to inspect at reasonable times
Manufacturer's relevant accounting records to verify the accuracy of commissions
paid by Manufacturer under the terms of this Agreement.
4. SALE OF THE PRODUCTS.
(a) Prices and Terms of Sale. Manufacturer shall provide Representative
with copies of its current price lists, its delivery schedules, and its standard
terms and conditions of sale, as established from time to time. Representative
shall quote to customers only those authorized prices, delivery schedules, and
terms and conditions of sale. Manufacturer may alter at will the prices,
delivery schedules, and terms and conditions of such sale, provided only that it
gives prior written notice to Representative of any changes. Each order shall be
governed by the prices, delivery schedules, and terms and conditions in effect
at the time the order is accepted, and all quotations by Representative shall
contain a statement to that effect.
(b) Quotations. Representative shall promptly furnish to Manufacturer
copies of all quotations submitted to customers. Each quotation shall accurately
reflect the terms of this Agreement.
(c) Orders. All orders for the Products shall be in writing, and the
originals shall be submitted to Manufacturer. Manufacturer shall promptly
furnish to Representative informational copies of all commissionable orders sent
by customers in the Territory.
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(d) Acceptance. All orders obtained by Representative shall be subject
to acceptance by Manufacturer at its principal office currently located at the
address listed for Manufacturer at the beginning of this Agreement, and all
quotations by Representative shall contain a statement to that effect.
Representative shall have no authority to make any acceptance or delivery
commitments to customers. Manufacturer specifically reserves the right to reject
any order or any part thereof for any reason. Manufacturer shall send to
Representative copies of any written acceptances on commissionable orders.
(e) Credit Approval. Manufacturer shall have the sole right of credit
approval or credit refusal for customers in all cases.
(f) Invoices. Manufacturer shall generate and send all invoices directly
to the customers and shall send copies of all commissionable invoices to
Representative. Payments from customers shall be made directly to Manufacturer.
(g) Collection. It is expressly understood by Representative that full
responsibility for all collection rests with Manufacturer.
(h) Inquiries from Outside the Territory. Representative shall promptly
submit to Manufacturer, for Manufacturer's attention and handling, the originals
of all inquiries received by Representative from customers outside the
Territory.
5. PRODUCT WARRANTY AND PRODUCT AVAILABILITY.
(a) Product Warranty. Any warranty for the Products shall run directly
from Manufacturer to the customer, and pursuant to any such warranty, the
customer shall return any allegedly defective Products to Manufacturer.
Representative shall have no authority to accept any returned Products.
(b) Product Availability. Under no circumstances shall Manufacturer be
responsible to Representative or any other party for its failure to fill
accepted orders, or for its delay in filling accepted orders, when such failure
or delay is due to any cause beyond Manufacturer's reasonable control.
6. DEMONSTRATION UNITS.
Any samples of the Products provided by Manufacturer to Representative
shall remain the sole property of Manufacturer and are entrusted to
Representative solely for purposes of demonstrating such Product to potential
customers. Representative shall have full responsibility for keeping such
samples in proper condition during the entire time that such units are in its
possession. Within fifteen (15) days of a written request from Manufacturer,
Representative shall return such samples in good condition to Manufacturer.
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7. ADDITIONAL RESPONSIBILITIES OF REPRESENTATIVE
(a) Forecasts. Within the last five (5) days of every month,
Representative shall provide Manufacturer with a six (6) month bookings forecast
of orders or such other reports as may be requested by Manufacturer from time to
time.
(b) Promotion of the Products. Representative shall, at its own expense,
stimulate demand for the Products within the Territory by vigorous product
promotion and by direct solicitation. In no event shall Representative make any
representation, guarantee or warranty concerning the Products except as
expressly authorized by Manufacturer. Representative shall indemnify and hold
Manufacturer harmless from and against all claims and liabilities, costs, and
expenses (including the reasonable fees of attorneys and other professionals)
incurred by, or threatened against, Manufacturer in connection with any
representation by Representative or Representative's personnel inconsistent with
or broader than the warranties and disclaimers set forth in this Agreement.
(c) Customer Service. Representative shall diligently assist its
customer's personnel in using the Products and shall perform such additional
customer services as good salesmanship requires and as Manufacturer may
reasonably request.
(d) Advising of Changes. Representative shall promptly advise
Manufacturer of (i) any changes in Representative's status, organization,
personnel, and similar matters, (ii) any changes in the key personnel,
organization, and status of any major customers of Manufacturer in the
Territory, and (iii) any political, financial, legislative, industrial or other
events in the Territory that could affect the mutual business interests of
Representative and Manufacturer, whether harmful or beneficial.
(e) Facilities. Representative shall provide itself with, and be solely
responsible for, (i) such facilities, employees, and business organization, and
(ii) such permits, licenses, and other forms of clearance from governmental or
regulatory agencies, if any, as it deems necessary for the conduct of its
business operations in accordance with this Agreement.
(f) Expense of Doing Business. Representative shall bear the entire cost
and expense of conducting its business in accordance with the terms of this
Agreement.
(g) Books and Records. Representative shall maintain and make available
to Manufacturer accurate books, records, and accounts relating to the business
of Representative with respect to the Products. Representative shall also
maintain a record of any customer complaints regarding either the Products or
Manufacturer and immediately forward to Manufacturer any information regarding
such complaints.
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8. ADDITIONAL OBLIGATIONS OF MANUFACTURER
(a) Order Leads. Manufacturer shall promptly forward to Representative
all order inquiries received by Manufacturer from qualified customers in the
Territory that are not House Accounts.
(b) Assistance in Promotion. Manufacturer shall, at its own expense,
promptly provide Representative with marketing and technical information
concerning the Products as well as reasonable quantities of brochures,
instructional material, and other Product data.
(c) Assistance in Technical Problems. Manufacturer shall, at its own
expense, assist Representative and its customers in all ways deemed reasonable
by Manufacturer in the solution of any technical problems relating to the
functioning and use of the Products.
(d) New Developments. Manufacturer shall inform Representative of new
product developments.
9. TERM AND TERMINATION
(a) Term. This Agreement shall become effective on the later date of
execution by both parties hereto and continue in full force and effect through
the end of the calendar year in which this Agreement was executed unless
terminated under the provisions of this Section 9.
(b) Termination for Convenience. This Agreement may be terminated by
either party for any reason or for no reason, with or without cause, by giving
the other party written notice thirty (30) days in advance.
(i) Termination by Manufacturer. If Manufacturer initiates the
termination of this Agreement, in addition to any commissions already earned by
Representative under the terms of Section 3 above, Manufacturer shall pay full
commissions on all O.E.M. orders booked during the effective term of this
Agreement, and shipped over the following extended term:
LENGTH OF TIME PERIOD FOLLOWING EFFECTIVE
AS REPRESENTATIVE DATE OF TERMINATION
-------------------- ---------------------------
(1) 0-2 Years 30 Days
(2) 2-3 Years 60 Days
(3) Over 3 Years 90 Days
(ii) Termination by Representative. If Representative initiates the
termination of this Agreement, commissions for O.E.M. shipments will only be
paid for shipments made through 30 days after the effective date of termination.
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(c) Termination for Cause. If either party defaults in the performance
of any provision of this Agreement, then the non-defaulting party may give
written notice to the defaulting party that, if the default is not cured within
thirty (30) days, the Agreement will be terminated. If the non-defaulting party
gives such notice and the default is not cured during the thirty-day period,
then the Agreement shall automatically terminate at the end of that period. If
the Representative is the defaulting party, then Manufacturer shall pay full
commissions on all orders shipped during the effective term of this Agreement,
plus all orders shipped prior to the earlier of the date of the written notice
of termination or the effective date of termination.
(d) Transition. Upon termination of this Agreement, Representative shall
diligently cooperate with Manufacturer to effect a smooth and orderly transition
in the sale of the Products in the Territory. From the time that a notice of
termination is received by either party until the effective termination date,
Representative shall refer all Product inquiries to Manufacturer, shall support
manufacturer's existing customers in the Territory (but shall not receive new
orders from them), and shall use its best commercial efforts to cooperate fully
with any newly appointed representative.
(e) Return of Materials. All designs, drawings, formulas or other data,
photographs, samples, literature, and sales aids of every kind shall remain the
sole property of Manufacturer. Within thirty (30) days after the termination of
this Agreement, Representative shall prepare all such items in its possession
for shipment, as Manufacturer may direct, at Manufacturer's expense.
Representative shall not make or retain any copies of any confidential items or
information that may have been entrusted to it.
(f) Limitation on Liability. In the event of termination by either party
in accordance with any of the provisions of this Agreement, neither party shall
be liable to the other, because of such termination, for compensation,
reimbursement or damages on account of the loss of prospective profits or
anticipated sales or on account of expenditures, investments, leases or
commitments in connection with the business or goodwill of Manufacturer or
Representative. Representative's sole liability under the terms of this
Agreement shall be for any unpaid commissions under Sections 3 and 9 above.
(g) Survival of Certain Terms. The provisions of Sections 3, 5(a), 9,
10, 11, 12, and 13 shall survive the termination of this Agreement for any
reason. All other rights and obligations of the parties shall cease upon
termination of this Agreement. Effective upon the termination of this Agreement,
Representative shall cease to use all trademarks, marks, and trade names of
Manufacturer.
10. LIMITATION ON LIABILITY.
MANUFACTURER'S LIABILITY ARISING OUT OF THIS AGREEMENT AND/OR SALE OF
THE PRODUCTS SHALL BE LIMITED TO THE AMOUNT PAID BY THE CUSTOMER FOR THE
PRODUCT. IN NO EVENT SHALL MANUFACTURER BE LIABLE FOR COSTS OF PROCUREMENT OF
SUBSTITUTE GOODS. IN NO EVENT SHALL MANUFACTURER BE LIABLE TO REPRESENTATIVE OR
ANY OTHER ENTITY FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR INDIRECT
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DAMAGES HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, WHETHER OR NOT MANUFACTURER
HAS BEEN NOTIFIED OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL
PURPOSE OF ANY LIMITED REMEDY.
11. CONFIDENTIALITY.
Representative acknowledges that by reason of its relationship to
Manufacturer hereunder it will have access to certain information and materials
concerning Manufacturer's business, plans, customers, technology, and products
that are confidential and of substantial value to Manufacturer, which value
would be impaired if such information were disclosed to third parties.
Representative agrees that it shall not use in any way for its own account or
the account of any third party, nor disclose to any third party, any such
confidential information revealed to it by Manufacturer. Representative shall
take every reasonable precaution to protect the confidentiality of such
information. Upon request by Representative, Manufacturer shall advise whether
or not it considers any particular information or materials to be confidential.
Representative shall not publish any technical description of the Products
beyond the description published by Manufacturer. In the event of termination of
this Agreement, there shall be neither further use nor any disclosure by
Representative of any confidential information of Manufacturer, which
information shall be disposed of in the manner required by Section 9(e).
Further, Representative shall not manufacture or have manufactured any devices,
components or assemblies utilizing Manufacturer's patents, inventions,
copyrights, know-how or trade secrets.
12. TRADEMARKS AND TRADE NAMES.
(a) Use. During the term of this Agreement, Representative shall have
the right to indicate to the public that it is an authorized sales
representative of Manufacturer's Products and to advertise (within the
Territory) such Products under the trademarks, marks, and trade names that
Manufacturer may adopt from time to time ("Manufacturer's Trademarks"). Nothing
herein shall grant Representative any right, title or interest in Manufacturer's
Trademarks. At no time during or after the term of this Agreement shall
Representative challenge or assist others to challenge Manufacturer's Trademarks
or the registration thereof or attempt to register any trademarks, marks or
trade names confusingly similar to those of Manufacturer.
(b) Approval of Representation. All representation of Manufacturer's
Trademarks that Representative intends to use shall first be submitted to
Manufacturer for approval (which approval shall not be unreasonably withheld) of
design, color, and other details or shall be exact copies of those used by
Manufacturer. If any of Manufacturer's Trademarks are to be used in conjunction
with another trademark on or in relation to the Products, Manufacturer's xxxx
shall be presented equally legibly, equally prominently, and of greater size
than the other but nevertheless separated from the other so that each appears to
be a xxxx in its own right, distinct from the other xxxx.
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13. GENERAL PROVISIONS
(a) Governing Law and Jurisdiction. This Agreement shall be governed by
and construed pursuant to the laws of the State of California, U.S.A., without
reference to principals of conflicts of laws. All disputes arising out of this
Agreement shall be settled by final binding arbitration in San Francisco,
California, pursuant to the Commercial Arbitration Rules of the American
Arbitration Association. Judgment on the award rendered by the arbitrators may
be entered in any court having competent jurisdiction thereof. Notwithstanding
the foregoing, the parties may apply to any court of competent jurisdiction in
Santa Xxxxx County, California, U.S.A., for a temporary restraining order,
preliminary injunction, or other interim or conservatory relief, as necessary,
without breach of this arbitration agreement and without any abridgment of the
powers of the arbitrators, and agree that such courts shall have exclusive
jurisdiction of any such action.
(b) Entire Agreement. This Agreement sets forth the entire agreement and
understanding of the parties relating to the subject matter herein and merges
all prior discussions between them. No modification of or amendment to this
Agreement, nor any waiver of any rights under this Agreement, shall be effective
unless in writing signed by the party to be charged.
(c) Notices. Any notice required or permitted by this Agreement shall be
deemed given if sent by registered mail, postage prepaid, addressed to the other
party at the address shown at the beginning of this Agreement or at such other
address for which such party gives notice hereunder. Delivery shall be deemed
effective three (3) days after deposit with postal authorities.
(d) Force Majeure. Nonperformance of either party shall be excused to
the extent that performance is rendered impossible by strike, fire, flood,
governmental acts, orders or restrictions, or any other reason where failure to
perform is beyond the control and not caused by the negligence of the
nonperforming party.
(e) Non-Assignability and Binding Effect. A mutually agreed
consideration for Manufacturer's entering into this Agreement is the reputation,
business standing, and goodwill already honored and enjoyed by Representative
under its present ownership, and, accordingly, Representative agrees that its
rights and obligations under this Agreement may not be transferred or assigned
directly or indirectly. Subject to the foregoing, this Agreement shall be
binding upon and inure to the benefit of the parties hereto, their successors
and assigns.
(f) Partial Invalidity. If any provision of this Agreement is held to be
invalid by a court of competent jurisdiction, then the remaining provisions
shall nevertheless remain in full force and effect. The parties agree to
renegotiate in good faith any term held invalid and to be mutually bound by the
substitute provision.
(g) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
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IN WITNESS WHEREOF the parties hereto have executed this Agreement as of
the day and year first above written.
MICRO LINEAR CORPORATION [REP COMPANY NAME]
By /s/ Xxxxx X. Xxxxxxxx By /s/ Xxx Xxxxxxxxx
--------------------------------- ----------------------------------
Title Xxxxx X. Xxxxxxxx, V.P. Sales Title Xxx Xxxxxxxxx, Group Director
------------------------------ -------------------------------
Date April 8, 2002 Date April 4, 2002
------------------------------ -------------------------------
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EXHIBIT A
PRODUCT DESCRIPTION
A range of standard linear, mixed-signal, and digital IC products as
defined by the Corporation's various catalogs and product bulletins.
MICRO LINEAR CORPORATION TEKSEL CORPORATION, LTD.
By /s/ Xxxxx X. Xxxxxxxx By /s/ Xxx Xxxxxxxxx
--------------------------------- ----------------------------------
Title Xxxxx X. Xxxxxxxx, V.P. Sales Title Xxx Xxxxxxxxx, Group Director
------------------------------ -------------------------------
Date April 8, 2002 Date April 4, 2002
------------------------------ -------------------------------
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EXHIBIT B
TERRITORY
JAPAN
MICRO LINEAR CORPORATION TEKSEL CORPORATION, LTD.
By /s/ Xxxxx X. Xxxxxxxx By /s/ Xxx Xxxxxxxxx
--------------------------------- ----------------------------------
Title Xxxxx X. Xxxxxxxx, V.P. Sales Title Xxx Xxxxxxxxx, Group Director
------------------------------ -------------------------------
Date April 8, 2002 Date April 4, 2002
------------------------------ -------------------------------
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EXHIBIT C
HOUSE ACCOUNTS
NONE
MICRO LINEAR CORPORATION TEKSEL CORPORATION, LTD.
By /s/ Xxxxx X. Xxxxxxxx By /s/ Xxx Xxxxxxxxx
--------------------------------- ----------------------------------
Title Xxxxx X. Xxxxxxxx, V.P. Sales Title Xxx Xxxxxxxxx, Group Director
------------------------------ -------------------------------
Date April 8, 2002 Date April 4, 2002
------------------------------ -------------------------------
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EXHIBIT D
COMMISSIONS
Commissions shall be payable with respect to orders solicited on the
basis of net xxxxxxxx on all integrated circuit sales.
COMMISSION SCHEDULE (Calendar Year = January through December)
5% for the first $1000K per customer per fiscal year
4% for $1000K to $2000K per customer per fiscal year
3% for $2000K to $3000K per customer per fiscal year
2% for $3000K to $4000K per customer per fiscal year
1.5% for all sales > $4000K per customer per fiscal year
SPLIT COMMISSION POLICY
Proprietary Second Source
Standard Products Standard Products
Design In 50% 25%
Qualification 20% 25%
Purchasing 20% 40%
Customer Service Point 10% 10%
All splits for the design-in rep will be reduced to 50% after three (3) years if
production is outside of the rep territory.
MICRO LINEAR CORPORATION TEKSEL CORPORATION, LTD.
By /s/ Xxxxx X. Xxxxxxxx By /s/ Xxx Xxxxxxxxx
--------------------------------- ----------------------------------
Title Xxxxx X. Xxxxxxxx, V.P. Sales Title Xxx Xxxxxxxxx, Group Director
------------------------------ -------------------------------
Date April 8, 2002 Date April 4, 2002
------------------------------ -------------------------------
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EXHIBIT E
REVENUE AGREEMENT PAGE
As part of the agreement and for mutual business planning purposes, both parties
agree that a reasonable level of xxxxxxxx (O.E.M. split adjusted ) for this
defined territory is:
The below dollar amount includes both O.E.M. and Distribution sales to cover
full activity by this selling entity.
TIME FRAME (January 1, 2002 - December 31, 2002) is:
$10,000,000 (Ten Million Dollars US)
MICRO LINEAR CORPORATION TEKSEL CORPORATION, LTD.
By /s/ Xxxxx X. Xxxxxxxx By /s/ Xxx Xxxxxxxxx
-------------------------------- ----------------------------------
Title Xxxxx X. Xxxxxxxx, V.P. Sales Title Xxx Xxxxxxxxx, Group Director
------------------------------- -------------------------------
Date April 8, 2002 Date April 4, 2002
-------------------------------- ---------------------------------
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