EXHIBIT 10.21
AGENT AGREEMENT
This AGENT AGREEMENT is made and entered into this 16th day of December,
1996, by and between Ampoc Far East Company Limited, a corporation organized
and existing under the laws of the Republic of China on Taiwan with its
principal place of business located at 00-0 Xxxx XX X. Xxxxxx, Xxxxxx, Xxxxxx
(hereinafter referred to as "Agent") and CFM TECHNOLOGIES, INC., a
Pennsylvania corporation, with its principal place of business located at 0000
Xxxxxxxxxx Xxxxx, Xxxx Xxxxxxx, Xxxxxxxxxxxx, 00000 (hereinafter referred to
as the "Company").
NOW THEREFORE, in consideration of the mutual covenants contained herein,
the parties hereto agree as follows:
1. Appointment of Agent. Company hereby appoints Agent as its exclusive
agent for the sale of certain items described in Attachment "A" (hereinafter
referred to as "Products") in the countries and locations listed in Exhibit
"B" (hereinafter referred to as "Territory").
Agent is authorized by the above appointment to sell Products only to
customers located in Agent's territory for use in manufacturing facilities
located in Agent's territory, and Agent shall refer to Company all inquiries
made from prospective customers which do not fall under the scope of this
Agreement. All inquiries or orders received by Company for Products from any
party in the Territory shall be referred to Agent.
The list of Products as set forth in Appendix A may be changed, abandoned,
or supplemented in writing by mutual agreement between the parties.
It is understood by the parties that the Agent shall be acting as an
independent sales agent for Company's Products, and Agent shall be solely
responsible for all expenses connected with the operation of its business.
Agent shall have no authority to contract in the name or bind the Company in
any manner whatsoever. Agent shall defend and hold Company harmless from all
claims arising out of Agent's conduct. All transactions or activities in
connection with this Agreement will comply with the letter and the spirit of
all applicable laws as well as ethical business standards. Care must be taken
to avoid disseminating inaccurate or misleading technical or business
information.
2. Term of Agreement. This Agreement shall continue in effect for a period
of one (1) year from the date of its execution and shall automatically renew
year after year, unless terminated pursuant to Paragraph 10 hereof.
3. Responsibilities.
a. Company's Responsibilities. Company shall make every reasonable effort
to manufacture quantities of the Products sufficient to meet the
requirements of end user customers sold to by Agent. Company shall have
responsibility for Product installation, service, and support.
b. Agent's Responsibilities. Agent agrees to:
(i) use its best efforts to promote the sale and use of the Products
and to solicit and secure orders for the Products within its Territory,
and further to serve the best interests of Company in any and all
matters in accordance with this Agreement;
(ii) Refrain from manufacturing or selling of products which directly
compete with the Products of the Company for the duration of this
Agreement and or a period of two years following the termination of
this Agreement for any reason.
(iii) Agent shall prepare a sales forecast for each quarter providing
projections of end-user sales of Products by item, by end-user name, by
quarter for six fiscal quarters of the Company, including the quarter
in which the forecast is prepared. These forecasts shall be received by
CFM by the 15th day of the second month of each fiscal quarter.
(Example a forecast covering the first quarter of FY 97 shall be
received by CFM by 15 November 1996 covering all four quarters of FY 97
and the first two quarters of FY98, ending, 30 April 1998.)
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4. Confidentiality. Agent acknowledges that this Agreement creates a
relationship of trust and confidence between Agent and Company. Agent
acknowledges that proprietary data and proprietary information are embodied in
the Company's Products, and in data, information, and material supplied by
Company to Agent or acquired by Agent in the course of performance of this
Agreement. Agent acknowledges that all such proprietary data and proprietary
information, including such data and information as is contained in the
Products and their constituent parts, constitute the sole and exclusive
property to the Company, and Agent will carefully protect such information and
use it only in furtherance of the Company's business.
Agent hereby agrees to hold in confidence during the term of this Agreement,
and thereafter for a period of three (3) years, any and all information of a
confidential nature regarding Company's business or affairs, including without
limitation, data provided by Company regarding the design and/or methods of
Company of the Products, and not to disclose the same to any person, firm, or
corporation.
On all the above information of a confidential or proprietary nature,
Company shall stamp "CONFIDENTIAL" or so indicate in other appropriate ways
for software or other intangible materials.
The following information shall not be considered confidential:
a. information which is already generally available to the public,
b. information which hereafter becomes generally available to the public,
except as a result of a fault of the party to whom the information was
disclosed,
c. information which Company agrees to disclose in writing;
d. information which can be shown to have been properly known to Agent
prior to the transmittal thereof from Company; or
e. information which is obtained by Agent from a third party which had
the right to possess and to disclose the information.
5. Price and Price Changes.
a. Price. The Company will from time to time provide the Agent with price
schedules for the Company's products in the Territory. Agent agrees that it
will not sell the Company's Products in its Territory at prices other than
those on the Territory price list without Company's express knowledge and
written consent. The company agrees to pay the Agent a commission for the
Products purchased by the customer/end-user according to the price paid by
the customer/end-user. Commission will be a pre-determined rate of seven
percent (7%) of collected funds. The commission rate may be changed upon
the written agreement of both parties.
6. Terms of Payment. The terms of payment shall be as follows:
a. Customer/end-user to pay Company:
90%, net 30 days after shipment of equipment
10%, net 30 days after final acceptance
b. Company to pay Agent commission within 10 days of receipt of payment
by Company from customer/end-user.
7. Delivery. The Company shall use its best efforts to fill all orders
promptly upon acceptance thereof. However, if conditions beyond the control of
Company arise which prevent compliance with normal delivery schedules, Company
shall not be liable for damages, general, special or otherwise. Deliveries
shall be made F.O.B. West Chester, Pennsylvania. Customer shall have the right
to select the packer and carrier of its choice.
The Company shall retain title and bear the risk of loss until such time as
a shipment leaves the companies dock, at which time title shall pass to the
Customer, and the risk of loss shall be borne by Customer. Customer shall
arrange and pay for insurance against loss or damage to the equipment during
transit.
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8. Sales and Support. Agent agrees to provide competent personnel for the
sales, specification review, negotiation, and technical sales support to
customers within its Territory. Company agrees to provide reasonable training
for Agent's personnel at its offices in West Chester, Pennsylvania.
9. Advertising. Company shall supply Agent with reasonable quantities of
sales materials such as catalogs, brochures, and reprints of its advertising
materials at no charge to Agent. Agent shall have the right to conduct
advertising campaigns with respect to the Products at its expense. Agent shall
refrain from making any claims or representations concerning the Products in
excess of those made by Company. Agent will translate the above materials into
Chinese as may be needed from time to time. Upon termination of this
Agreement, Agent shall return all unused sales materials to Company and shall
refrain from further use of all such materials in its activities.
10. Termination. This Agreement may be terminated:
a. by an agreement in writing duly signed by the parties hereto; or
b. by either party at will, with or without cause, upon not less than one
hundred and twenty (120) days notice in writing, given by registered or
certified mail to the other party.
The acceptance of any order from a customer in the Agent's territory after
the termination of this Agreement shall not be construed as a renewal or
extension hereof nor as a waiver of termination. Neither Company nor Agent
shall, by reason of the termination or non-renewal of this Agreement, be
liable to the other for compensation, reimbursement or damages on account of
the loss of prospective profits on anticipated sales, or on account of
expenditures, investments, leases or commitments in connection with the
business or goodwill of Company or Agent, or otherwise.
11. Miscellaneous,
a. Assignment. This agreement is not assignable or transferable by either
party in whole or in part, except with written consent of the other party.
b. Governing Law and Language. This Agreement shall be governed in all
respects by the laws of the Commonwealth of Pennsylvania. This Agreement
has been negotiated and executed in the English language, and the rules of
construction and definition of the English language shall be applied in
interpreting this Agreement.
c. Entire Agreement. This Agreement constitutes the full and entire
understanding and agreement between the parties.
d. Severability. If any provision of this Agreement shall be judicially
determined to be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
e. Binding Effect. This Agreement shall be binding upon and inure to the
benefits of the parties hereto and their respective successors and assigns.
f. Titles and Subtitles. The titles of the paragraphs and subparagraphs
of this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
g. Counterparts. This Agreement may be executed in any number of
counterparts each of which shall be an original, but all of which together
shall construe one instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day
and year first above set forth.
THE COMPANY:
/s/ Xxxxx X. Xxxxxxx
_____________________________________
Xxxxx X. Xxxxxxx
President and Chief Executive
Officer
CFM Technologies, Inc.
THE AGENT:
/s/ Xxxxxx Xx
_____________________________________
Xxxxxx Xx
President
Ampoc Far East Co. LTD.
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EXHIBIT A
PRODUCTS
Full Flow(TM) systems for both flat panel and semiconductor applications.
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EXHIBIT B
TERRITORY
The Republic of China on Taiwan
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