MANUFACTURER REPRESENTATIVE AGREEMENT
THIS MANUFACTURER REPRESENTATIVE AGREEMENT, entered into as of this 1st
day of January, 1998, by and between CONVERSION TECHNOLOGIES INTERNATIONAL,
INC., a company organized and existing under the laws of the State of Delaware,
with principal offices at 0000 Xxxx Xxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx
00000, facsimile number: (000) 000-0000 (hereinafter the "COMPANY") and
ENGINEERED PRODUCTS SALES ASSOCIATES, a company organized and existing under the
laws of Pennsylvania, with principal offices at 000 Xxxxxx Xxx, Xxxx Xxxx,
Xxxxxxx 00000, facsimile number: (000) 000-0000 (hereinafter "REPRESENTATIVE").
WITNESSETH
WHEREAS, the COMPANY is engaged in the business of marketing and
distributing a variety of silica-based abrasives and construction materiel
substrates including alumina-silicate glass, soda lime glass, ceramic and
colored substances; and
WHEREAS. REPRESENTATIVE desires to act as the COMPANY's independent
marketing and sales representative for such products.
NOW, THEREFORE, IT IS MUTUALLY AGREED AS FOLLOWS:
1. APPOINTMENT. Subject to the terms and conditions of this Agreement, the
COMPANY hereby appoints REPRESENTATIVE, and REPRESENTATIVE hereby accepts
appointment, as the COMPANY'S nonexclusive Independent marketing and sales
representative during the term of this Agreement to promote and assist the
COMPANY in the sale or the products (the "PRODUCTS") manufactured by or for, and
sold by, the COMPANY.
2. CUSTOMERS. A schedule of current customers of COMPANY for which
REPRESENTATIVE is eligible to obtain a commission on sales of PRODUCTS thereto
("Customers") under the terms and conditions further described in Paragraph 8
hereof, shall be attached hereto as Exhibit A and be made a part hereof. Subject
to REPRESENTATIVE'S Exclusive Right of Solicitation under the terms and
conditions of this Agreement in general and as more particularly described in
the proviso immediately hereafter, COMPANY shall have the ultimate right to (i)
sell the PRODUCTS to any customer, including without limitation, the Customers
listed on Exhibit A, with or without involvement of REPRESENTATIVE, and (ii)
appoint one or inure additional marketing and/or sales representatives,
distributors and/or other agents or representatives to promote and assist the
COMPANY in the sale of the PRODUCTS to any customers, including the Customers
("Reversionary Right of Solicitation"); provided, however, that for so long as
REPRESENTATIVE meets the quarterly Performance Criteria as further described in
Subparagraph 5(d) hereof, REPRESENTATIVE shall have the exclusive right during
the term of this Agreement to conduct sales promotion work and solicitations of
sales
of PRODUCTS to CUSTOMERS ("Exclusive Right of Solicitation"), and, in turn,
COMPANY shall not have the Reversionary Right of Solicitation; provided further
that, if at any time during the term of this Agreement, REPRESENTATIVE fails to
meet any such quarterly Performance Criteria, then COMPANY may suspend or
terminate REPRESENTATIVE's Exclusive Right of Solicitation as further described
in Subparagraph 5(d) hereof. In the event of any such sales and/or appointments,
REPRESENTATIVE shall be entitled to a commission only on any sales to such
Customers only as set forth in Paragraph 8 hereof, and hereby expressly agrees
that it shall not be entitled otherwise to any kind of other compensation,
remuneration, indemnification, or damages by virtue of such sales and/or
appointment. REPRESENTATIVE acknowledges and agrees that the Customers and
customer list containing such Customers are the exclusive property of COMPANY
and such Customers are subject to the non-competition provisions of Subparagraph
5(g).
3. TERM. This Agreement shall be effective for a period commencing as of
January 1, 1998 and expiring on December 31, 2000. Thereafter, this Agreement
shall renew for successive terms of twelve (12) calendar months each, unless one
of the parties hereto chooses not to have this Agreement renewed and so notifies
the other party in writing at least ninety (90) calendar days prior to the
expiration date of the initial term indicated above or of any successive renewal
term. The parties expressly agree that this Agreement shall always be
interpreted as a definite term agreement, and not as an indefinite term
agreement, regardless of any successive renewals of this Agreement as provided
for above. They further agree that expiration of this Agreement at the end of
the initial term or any renewal term shall not be and shall not be interpreted
as being unilateral termination of the Agreement by either party.
4. REPRESENTATIVE'S AND COMPANY'S REPRESENTATIONS AND WARRANTIES AND
COVENANTS.
REPRESENTATIVE represents and warrants as follows:
(a) Organization and Authority. REPRESENTATIVE represents, warrants and
covenants that it is duly organized and existing under the laws of
Pennsylvania, and is in good standing under the laws of its state of
incorporation to conduct its business activities as presently being
conducted and contemplated in this Agreement and has full power
and authority to enter into this Agreement and to perform the duties
contemplated hereby. COMPANY represents, warrants and covenants that
it is, and will remain in full compliance with all applicable laws
and regulations involved in its solicitation and sales of PRODUCTS.
(b) Staff and Facilities. REPRESENTATIVE represents, warrants and
covenants that it presently has, is maintaining, and shall continue
to maintain during the term of this Agreement, at its sole cost and
expense, a properly established and experienced staff, and suitable
and adequate organization, premises and facilities
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for properly and efficiently carrying out its obligations under this
Agreement to the extent necessary.
(c) Disclosures. So as to avoid a conflict of interest between
REPRESENTATIVE and the COMPANY or an adverse effect on the COMPANY,
REPRESENTATIVE represents and warrants that due to REPRESENTATIVE's
prior business or other activities or for any other reason,
REPRESENTATIVE's appointment under this Agreement will not result in
a conflict of interest or will not adversely affect the sale of the
PRODUCTS.
REPRESENTATIVE further represents, warrants and covenants that it
shall, during the term of this Agreement, decline to promote or
engage in, directly or indirectly, the sale or servicing of any
additional products of COMPANY absent the prior written consent of
the COMPANY.
(d) No Misrepresentations. REPRESENTATIVE represents, warrants and
covenants that it has not made nor will it make any
misrepresentations regarding the COMPANY'S capabilities, operating
and financial condition, delivery, performance, perceived, actual or
otherwise, either as an embellishment or detriment to customers'
perception of the COMPANY.
COMPANY represents and warrants as follows:
(a) Organization and Authority. COMPANY represents, warrants and
covenants that it is duly organized and existing under the laws of
Delaware, and is in good standing under the laws of its state of
incorporation to conduct its business activities as presently being
conducted and contemplated in this Agreement and has full power and
authority to enter into this Agreement and to perform the duties
contemplated hereby. COMPANY represents, warrants and covenants that
it is, and will remain in full compliance with all applicable laws
and regulations involved in its solicitation and sales of PRODUCTS.
5. REPRESENTATIVE'S OBLIGATIONS. REPRESENTATIVE acknowledges and expressly
agrees that each of the obligations set forth in this Paragraph 5 is inherent in
the relationship between the parties contemplated in this Agreement.
Accordingly, REPRESENTATIVE at its sole cost and expense expressly agrees
as follows:
(a) Sales Promotion. REPRESENTATIVE shall carry out sales promotion work
and solicitation of sales for the PRODUCTS diligently, using its
best efforts for the account of the COMPANY and in accordance with
the COMPANY'S established practices and procedures. These efforts
shall include, but shall not in any way be limited to: (i)
marketing, advertising and promoting the PRODUCTS effectively;
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(ii) ordering and keeping a representative selection of the
COMPANY's up-to-date promotional sales literature, price list,
catalogues and other promotion materials in good condition; (iii)
informing the COMPANY of any suggestions for modification, variation
or improvement of the PRODUCTS for the purpose of meeting specific
local requirements for sales to Customers; (iv) ensuring the
PRODUCTS are sold as advertised in the form and with the labeling or
making designated by die COMPANY; and (v) at the request of the
COMPANY, collecting and transferring to the COMPANY, its
subsidiaries or its affiliated companies any of the PRODUCTS owned
by the COMPANY.
(b) Order and Inquiries. REPRESENTATIVE shall promptly and actively
follow up every lead supplied by the COMPANY, and shall transmit or
cause to be transmitted to the COMPANY without delay any order for
or inquiry concerning the PRODUCTS from time to time received by
REPRESENTATIVE.
(c) Customer Service and Assistance. Upon request, REPRESENTATIVE shall
provide such assistance to the COMPANY or customers of the COMPANY
and REPRESENTATIVE, as may be mutually agreed upon by the
REPRESENTATIVE and the COMPANY from time to time.
(d) Reports and Meetings. On June 15, 1998 and within ten (10) calendar
days from the end of each calendar quarter thereafter during which
this Agreement is in effect, REPRESENTATIVE, or a principal of
REPRESENTATIVE, as appropriate, shall (A) submit reports to the
COMPANY setting forth such information as may be reasonably
requested by the COMPANY, including, but not limited to: (i) in
reasonable detail, market analysis and sales forecasts with respect
to the PRODUCTS for the quarterly period immediately following each
above-mentioned calendar quarter; and (ii) also in reasonable
detail, information as to the activities of the COMPANY's and the
REPRESENTATIVE's competitors and potential competitors and,
generally, as to any matter known by REPRESENTATIVE, including laws,
degrees, and regulations of any governmental entity which could
affect the sale of the PRODUCTS, and (B) meet in person at the
COMPANY'S Orlando, Florida offices with a designated representative
of the COMPANY for the purpose of the COMPANY and the
REPRESENTATIVE mutually (i) to establish and set out clearly in
writing certain objective performance criteria, targets and/or other
standards ("Performance Criteria") in respect of each party's
performance of its respective obligations hereunder, and (ii) to
evaluate and determine whether each of the respective Performance
Criteria agreed to by the parties for the immediately preceding
quarter was met or otherwise satisfied by such party; provided,
however, that the Performance Criteria for the initial period of
this Agreement up to the June 15th meeting, shall be mutually
established by the parties as soon as reasonably practicable after
the execution hereof). To the extent that the parties
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agree that any of such Performance Criteria was not met or otherwise
satisfied by the respective obligated party, then the other party
shall be entitled either (A) to suspend privileges granted to the
other hereunder, including, without limitation, with respect to
REPRESENTATIVE's failure to meet such Performance Criteria,
COMPANY's right to suspend REPRESENTATIVE's exclusive Right of
Solicitation (as described in Paragraph 2 hereof), or (B) terminate
this Agreement under the terms of Subparagraph 11(c) hereof. To the
extent that the parties cannot agree either on the respective
Performance Criteria for any calendar quarter or a party's
satisfaction thereof, as described in the immediately preceding
sentence, then the matter shall be subject to the dispute resolution
procedures described in Paragraph 16 hereof.
In addition, at least one of the principals of REPRESENTATIVE shall
meet in person with designated representative of COMPANY at
COMPANY's Orlando, Florida offices at a minimum of once a month for
each month during which this Agreement is in effect. The parties
agree that such meetings are for the mutual benefit of both
REPRESENTATIVE and COMPANY and, therefore, attendance at such
meetings by REPRESENTATIVE's principal(s) shall be without any
compensation whatsoever to such principal(s) or to REPRESENTATIVE
for such principal(s)' time or otherwise.
(e) Industrial Property Rights. REPRESENTATIVE recognizes and shall
respect the rights of the COMPANY, as well as the rights of its
respective subsidiaries and affiliated companies, if any, in its
respective trademarks, trade names, copyrights and patents, whether
or not registered, and REPRESENTATIVE shall not use any of its
trademarks in conjunction with the PRODUCTS without the prior
written consent of the COMPANY. REPRESENTATIVE shall communicate to
the COMPANY all inventions or improvements made by REPRESENTATIVE
relating to the PRODUCTS, including in its applications, and
REPRESENTATIVE hereby irrevocably assigns and transfers to the
COMPANY all right, title and interest in and to such related
inventions and improvements and such inventions and improvements
shall pursuant to the terms hereof become the property of the
COMPANY. REPRESENTATIVE shall assist the COMPANY and its
subsidiaries and affiliated companies, when requested, in obtaining,
registering, and maintaining patents, trademarks, tradenames and
copyrights in the COMPANY's and its subsidiaries' and affiliated
companies' names which are used in conjunction with the PRODUCTS as
may be necessary from time to time.
REPRESENTATIVE shall supply to the COMPANY samples of any labels or
advertising material prepared by REPRESENTATIVE and bearing any
trademarks or tradenames of the COMPANY or its subsidiaries or
affiliated companies, if any.
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(f) Confidential Information. Except with the prior written consent of
the COMPANY, REPRESENTATIVE shall not use or disclose to any person,
business or public body any written and oral information, data and
documents relating to this COMPANY, its subsidiaries or affiliates,
the PRODUCTS, or the COMPANY's business, including without
limitation patents, trademarks, trade names, know-how, memoranda,
personal notes, worksheets, computer data, and other proprietary
information; prospective and existing customers of COMPANY, other
individuals and businesses with whom COMPANY currently does business
or plans to do business; financial and other corporate records;
operational, sales, promotional and marketing methods and techniques
and studies; pricing information; information other than in the
discharge of REPRESENTATIVE's duties, including sales promotion
activities; etc. (collectively, the "Information").
(i) The parties agree that the COMPANY's Information is
proprietary and confidential, and REPRESENTATIVE acknowledges
that the unauthorized disclosure or use thereof would
materially adversely affect the COMPANY's business and
competitive position. The COMPANY and the REPRESENTATIVE
further agree that the Information (A) is valuable, special
and a unique asset of the COMPANY, (B) has provided and will
hereafter provide the COMPANY with a substantial competitive
advantage in the operation of its business, and (C) is a
legitimate business interest of the COMPANY. The COMPANY and
REPRESENTATIVE agree that the existence of these legitimate
business interests justifies the need for the confidentiality
and non-circumvention covenants set forth herein.
(ii) As an express condition to COMPANY's use of REPRESENTATIVE's
services hereunder and its execution of this Agreement,
REPRESENTATIVE shall not, during the term of this Agreement,
or at any time thereafter (unless a court interpreting this
provision finds such unlimited period to be unreasonable, and,
accordingly, the parties intend this restrictive covenant to
last for a period of 10 years) either directly or indirectly,
communicate, publish, disclose. divulge, or use, or authorize
anyone else to communicate, publish, disclose, divulge, or
use, for the benefit of himself or any other person, persons,
partnership, association, corporation, or other entity, any
Information which may be communicated to REPRESENTATIVE or of
which REPRESENTATIVE may be apprised by virtue of this
Agreement. Any and all information, knowledge, know-how, and
techniques which COMPANY designates as confidential shall be
deemed confidential for purposes of this Agreement, except
information which (i) REPRESENTATIVE can demonstrate came to
its attention prior to disclosure thereof by COMPANY; (ii) at
or after the time of disclosure by COMPANY to REPRESENTATIVE,
lawfully
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had become a part of the public domain through lawful
publication or communication by others; or (iii) is lawfully
required to be disclosed by any governmental agency or
applicable law. REPRESENTATIVE further covenants and agrees
that at all times during the term hereof and at all times
thereafter REPRESENTATIVE will hold all of the foregoing
information in secrecy as trustee or custodian for the COMPANY
for the exclusive benefit of the COMPANY, and will faithfully
do everything in its power to assist the COMPANY in holding in
secrecy the foregoing.
(iii) If REPRESENTATIVE becomes legally obligated to disclose any
information, the REPRESENTATIVE shall give the COMPANY prompt
rind timely notice of such fact so that the COMPANY may obtain
a protective order or other appropriate remedy concerning any
such disclosure or waive the REPRESENTATIVE's compliance with
the provisions of this Agreement. The REPRESENTATIVE shall not
disclose any such information without first giving the
COMPANY ten (10) business days to consent to the disclosure or
notify the REPRESENTATIVE of its intention to seek a
protective order or other appropriate remedied; provided,
however, that the REPRESENTATIVE may disclose such Information
less than ten (10) days after giving notice to the COMPANY if
ordered to do so by any duly authorized state or federal
governmental entity in court of law or equity. The
REPRESENTATIVE shall cooperate fully with the COMPANY in
connection with the COMPANY'S efforts to obtain a protective
order or other appropriate remedy. In the event the COMPANY is
unable to obtain a protective order or other appropriate
remedy with respect to the Information or has not responded to
the REPRESENTATIVE's notice within the ten (10) day period, or
the reduced time period, if applicable, referred to above,
and the REPRESENTATIVE has complied with its obligations
under this Paragraph, the REPRESENTATIVE shall not be liable
for the disclosure of Information legally required to he
disclosed and not subject to a protective order or other
appropriate remedy; provided, however, that the REPRESENTATIVE
shall have nevertheless used its best efforts to have the
Information so required to be disclosed treated
confidentially.
(g) Non-Competition and Non-Solicitation.
(i) REPRESENTATIVE covenants that, except as otherwise approved in
advance and in writing by COMPANY, REPRESENTATIVE shall not,
during the term of this Agreement, and for a continuous
uninterrupted period of twelve (12) months commencing upon the
expiration or termination of this Agreement, regardless of the
cause for termination,
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individually, or jointly with others, either directly or
indirectly, for himself, or through, on behalf of, or in
conjunction with any person, persons, partnership,
association, corporation, or other entity, own, maintain,
operate, engage in, become associated with, serve as a
consultant to, accept compensation from or have any interest
in any business enterprise (including, without limitation, any
person, firm or corporation, regardless of whether such
enterprise be a new business started by REPRESENTATIVE alone
or with others) whose products or services compete with those
offered by the COMPANY (its predecessors or affiliates), and
shall not directly or indirectly act as an officer, director,
employee, partner, contractor, consultant, advisor, principal,
agent, or proprietor, or in any other capacity for, nor lend
any assistance (financial, managerial, consulting or
otherwise) to or cooperate with, any such business enterprise.
This Subparagraph 5(g) constitutes a series of separate
covenants for each county, state (including the District of
Columbia) and country in which COMPANY or its subsidiaries or
affiliates transacts business.
(ii) REPRESENTATIVE specifically acknowledges that it will have
access to Information, including, without limitation,
prospective and existing customers or customer lists of
COMPANY. REPRESENTATIVE covenants and agrees that during the
term of this Agreement, and for a continuous uninterrupted
period of twelve (12) months, commencing upon the expiration
or termination of this Agreement, except as otherwise approved
in advance and in writing by COMPANY, REPRESENTATIVE shall
not, either directly or indirectly, for himself, or through,
on behalf of, or in conjunction with any person, persons,
partnership, association, corporation, or entity: (A) divert
or attempt to divert or solicit any prospective or existing
customer of COMPANY to any competitor by direct or indirect
inducement or otherwise; or (B) employ or seek to employ any
person who is at that time employed by COMPANY, any affiliate
of COMPANY, or otherwise directly or indirectly induce or
solicit such person to leave his or her employment.
(iii) COMPANY and REPRESENTATIVE agree that the Information and the
substantial relationships with COMPANY's specific prospective
and existing customers: (i) are valuable, special, and a
unique asset of COMPANY; (ii) have provided and will hereafter
provide COMPANY with a substantial competitive advantage in
the operation of its business; and (iii) are a legitimate
business interest of COMPANY. COMPANY and REPRESENTATIVE also
agree that the existence of these legitimate business
interests justifies the need for the restrictive covenants set
forth in
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Subparagraphs 5(f) and 5(g), and the restrictive covenants are
reasonably necessary to protect COMPANY's legitimate business
interests.
(iv) In the event that any other provision of these Subparagraphs
5(f) and f(g) or the application of any such provision shall
be held to be prohibited or unenforceable in any jurisdiction,
such provision shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability. The
remaining provisions of this covenant to refrain from
competition shall remain in full force and effect, and any
such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any
other jurisdiction. The parties shall use their best efforts
to replace the provision that is contrary to law with a legal
one approximating to the extent possible the original intent
of the parties.
(h) Sub-representatives. REPRESENTATIVE shall not, without the prior
written consent of the COMPANY, appoint any sub-representatives,
agents, subdistributors or dealers to carry out any of the
activities covered by this Agreement. In the event that the COMPANY
shall consent to any such appointment by REPRESENTATIVE, the latter
as sole principal thereof and for its account shall in each case
cause the sub-representative, agent, sub-distributor or dealer to
comply with any and all obligations imposed on REPRESENTATIVE under
this Agreement.
(i) Representations. REPRESENTATIVE shall not make any representations
as to the PRODUCTS other than those, if any, contained in the
written PRODUCTS information and data provided by the COMPANY.
REPRESENTATIVE shall be totally responsible for any of its
independent representation not provided or made at the express
direction of the COMPANY and shall hold the COMPANY harmless from
any claims and expenses, including, but not limited to, reasonable
attorneys' fees, resulting from such unauthorized representations.
(j) Expenses. REPRESENTATIVE shall bear and pay when due all expenses
incurred by it or its employees in the performance of its
obligations under this Agreement.
6. THE COMPANY'S OBLIGATIONS. The COMPANY at its sole cost and expense
expressly agrees to the following:
(a) Promotional Assistance. The COMPANY agrees to reasonably supply
REPRESENTATIVE, at the COMPANY's then prevailing price rate, with
catalogues, promotional sales literature as such other information
or materials as
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the COMPANY, in its sole judgment, believes will assist
REPRESENTATIVE in promoting and assisting in the sale and acceptance
of the PRODUCTS. Any translations or adaptations of the aforesaid
materials shall be at the sole expense and responsibility of
REPRESENTATIVE; provided, however, that the COMPANY reserves its
absolute right to approve said translations or adaptations.
(b) Executed Orders and Invoices. The COMPANY agrees to transmit or
cause to be transmitted to REPRESENTATIVE copies of (i) executed
orders with customers referred by REPRESENTATIVE, and (ii) invoices
covering deliveries pursuant to such orders.
(c) Expenses. The COMPANY shall bear and pay when due all expenses
incurred by it or its employees in the performance of its
obligations under this Agreement.
7. HANDLING AND ACCEPTANCE OF ORDERS, PRICES, DELIVERY AND CREDIT.
(a) Orders. REPRESENTATIVE shall promptly submit to the COMPANY for the
latter's acceptance all orders for the PRODUCTS. The COMPANY will
not be bound by any such order until (i) COMPANY and customer have
executed an appropriate agreement which sets forth the terms and
conditions of the purchase and sale of the PRODUCTS, and (ii) such
order is accepted by the COMPANY which, at its sole discretion, it
may accept or reject for any reason whatsoever any such order
without incurring any liability whatsoever to REPRESENTATIVE or any
third party upon any and all such rejections. Orders for the
PRODUCTS shall be deemed to have been accepted by the COMPANY only
upon acceptance in writing by the COMPANY unless otherwise agreed to
by COMPANY. Furthermore, under no circumstances shall COMPANY be
liable for any damages, penalties, costs or offsets arising out of
the failure to deliver any order or for any damages, penalties,
costs or offsets for late delivery of any order including, without
limitation, special or consequential damages; provided, however,
that in light of both parties' desire to limit their liability to
customers. COMPANY agrees to use its best commercially reasonable
effects to notify the customer of the COMPANY's disclaimers and
limitations on liability in an appropriate manner.
Any and all orders from time to time submitted by REPRESENTATIVE
shall clearly identify the Customer, and if accepted by the COMPANY,
shall be valid only for such Customer.
Furthermore, each such order shall be subject to the COMPANY's
prevailing terms and conditions or sale, which may be changed or
established from time to time by the COMPANY at its discretion.
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(b) Price. The price for the PRODUCTS shall be the one designated from
time to time by the COMPANY, and any and all changes shall be
effective upon thirty (30) calendar days' written notice by the
COMPANY. COMPANY shall establish and have exclusive control over all
prices, discounts, specifications and other terms relating to the
sales of PRODUCTS pursuant to this Agreement. REPRESENTATIVE shall
not represent pricing of the COMPANY to any party or parties without
prior written confirmation or such pricing from the COMPANY.
REPRESENTATIVE shall not accept orders in the COMPANY's name or make
delivery promises without the COMPANY'S prior written approval.
(c) Delivery. Shipments against orders accepted by the COMPANY under
this Agreement shall be made in accordance with the terms and
conditions prescribed by the COMPANY and accepted by the customer
and shall be subject to credit, government restrictions and/or
conditions outside the COMPANY's control.
(e) Credits. Customer credits and allowances shall be determined solely
by COMPANY.
8. COMPREHENSIVE OF REPRESENTATIVE - COMMISSIONS.
(a) [Intentionally Omitted].
(b) Commission.
(i) REPRESENTATIVE shall be entitled to various percentage
commissions as set forth on the Schedule of Commissions
attached hereto and made a part hereof as Exhibit B, but only
on sales to Customers listed on the Schedule of Customers
attached hereto as Exhibit A and derived from orders from such
Customers submitted by REPRESENTATIVE to the COMPANY and
accepted by the latter. Commissions shall be computed on net
amounts of invoices rendered and collected by the COMPANY for
the PRODUCTS sold, excluding transportation, freight and
pallet costs, any special handing fees, any sales or other
applicable taxes and duties, insurance or refunds. No
commission shall be earned by REPRESENTATIVE and/or be due and
owing from the COMPANY until the COMPANY receives payment in
full from the customer for the PRODUCTS sold. The COMPANY may,
upon ninety (90) days' written notice to REPRESENTATIVE,
change or amend the Schedule or Commissions set forth in
Exhibit B. Subject to REPRESENTATIVE's Exclusive Right of
Solicitation (as defined herein), COMPANY may apportion the
applicable commission between REPRESENTATIVE and other sales
representatives of the COMPANY where the COMPANY
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determines, in its sole discretion, that such an apportionment
is warranted or required. In cases in which price appears to
be the primary factor determining the placement of an order, a
lesser commission rate will be accepted by REPRESENTATIVE if
it appears to be in the best interest of both parties and if
the amount of such lower commission is mutually agreed upon
between the parties before the sale to a customer. COMPANY
shall deduct from any commission due at any time an amount
equivalent to commissions previously paid to REPRESENTATIVE on
the sale of PRODUCTS which have been subsequently returned by
the customer or for which allowances have been credited to the
customer for any reason, or for which no commission should
have been paid to REPRESENTATIVE under the terms hereof for
any reason.
(ii) During the term of this Agreement, COMPANY shall pay to
REPRESENTATIVE the monthly commission due, if any, within five
(5) business days after the (i) 15th of such month with
respect to any payment(s) received in full by COMPANY during
the period beginning on the 1st and ending on the 15th of such
month (regardless whether the 15th falls on a business day),
and (ii) last day of such month with respect to any payment(s)
received in full by COMPANY during the period beginning on the
16th (regardless of whether the 16th falls on a business day)
and ending on the last day of such month; provided, however,
that in light of the Initial Retainer payments to
REPRESENTATIVE, no commission shall be due and payable or
otherwise owed by COMPANY to REPRESENTATIVE for sales of
PRODUCTS made prior to March 1, 1998, regardless of whether to
Customers listed on Exhibit A.
(iii) Payment shall be made in U.S. dollars, and, subject to a
mutual decision of the parties, by either depositing (at
REPRESENTATIVE's expense) the amount of such commissions in
the account of REPRESENTATIVE at such bank as designated in
writing by REPRESENTATIVE from time to time, or by mailing a
check for such amount to REPRESENTATIVE's place of business as
shall be designated in writing by REPRESENTATIVE from time to
time.
(iv) The COMPANY and REPRESENTATIVE acknowledge that REPRESENTATIVE
shall not receive any commission or compensation whatsoever
for any of the COMPANY's sales to customers not expressly
listed on Exhibit A.
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9. INDEMNIFICATION.
(a) COMPANY shall indemnify, defend, release and hold harmless
REPRESENTATIVE, its subsidiaries, affiliates, successors and assigns, and its
officers, directors, agents, employees and shareholders (collectively, the
"REPRESENTATIVE Indemnitees") from and against, any and all losses, obligations,
liabilities, penalties, and damages which REPRESENTATIVE Indenmitees may incur
or suffer and all deficiencies, actions, administrative proceedings and
judgments, reasonable costs and expenses (including reasonable legal fees) with
which any of them may be faced arising out of claims of any kind for damages or
expenses as a result of COMPANY's breach of any representations, covenants or
warranties, as set forth herein or otherwise relating to COMPANY's manufacture,
sales or other service rendered pursuant to the terms hereof.
(b) REPRESENTATIVE agrees to indemnify COMPANY, its parents,
subsidiaries, affiliates, successors and assigns, and its officers,
directors, agents, employees and shareholders (collectively,
"COMPANY Indemnitees"), against any and all losses, obligations,
liabilities, penalties, and damages (including but not limited to
compensatory damages) which the COMPANY Indemnitees may incur or
suffer and all deficiencies, actions (including without limitation,
any proceedings to establish insurance coverage), administrative
proceedings and judgments, reasonable costs and expenses (including
reasonable legal fees), with which any of them may be faced arising
out of claims of any kind for damages or expenses as a result of
REPRESENTATIVE's breach of any of its representations, covenants or
warranties as set forth herein, or otherwise relating to
REPRESENTATIVE's marketing, sales or other services rendered
pursuant to the terms hereof, to the extent such damages or expenses
are attributable to any negligence or willful misconduct of
REPRESENTATIVE.
(c) If any claims are made against COMPANY or REPRESENTATIVE as to which
the indemnification provided herein applies, COMPANY or
REPRESENTATIVE, as the case may be (the "indemnified party"), shall
promptly notify the other (the "indemnifying party") thereof within
ten (10) business days in writing, and allow the indemnifying party
and its insurers the opportunity to assume direction and control of
the defense against such claims, at its sole expense, including
without limitation, the selection of counsel at the sole option of
the indemnifying party or its insurers to the extent that the
indemnified party's liability is not thereby invoked. The
indemnified party shall cooperate with the indemnifying party and
its insurer in the disposition of any such matter and the
indemnified party will have the right to participate in the defense
of any claim to which this Paragraph applies. Unless made with the
express written consent of the indemnifying party, no sums paid by
the indemnified party in settlement of any lawsuit for alleged
damages arising from the use of PRODUCTS shall be recoverable under
this Paragraph.
-13-
(d) In no event shall the indemnifying party be liable under this
Paragraph for punitive damages, or any costs or fees related
thereto, as a result of the conduct, acts or omissions of the
indemnified party, its agents or employees.
10. LIMITATIONS OF WARRANTIES. COMPANY warrants that it will convey to
Customers of the PRODUCTS good title to the PRODUCTS, free of all liens or any
kind whatsoever. REPRESENTATIVE HEREBY ACKNOWLEDGES AND EXPRESSLY AGREES THAT
THE COMPANY MAKES NO OTHER WARRANTY OF ANY KIND WHATSOEVER, WHETHER WRITTEN,
ORAL, EXPRESS OR IMPLIED AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED BY THE COMPANY AND
EXCLUDED FROM THIS AGREEMENT.
11. TERMINATION AND CONSEQUENCES AND OBLIGATIONS UPON TERMINATION OF
EXPIRATION.
(a) Either party may terminate this Agreement, without demand or
judicial resolution to that effect, at any time upon giving ninety
(90) calendar days' prior written notice to the other party, or upon
the occurrence of an event for termination or a just cause for
termination as defined in Subparagraphs 11(b) and 11(c) below,
respectively. Said termination shall become effective immediately as
of the date on which such event for termination or just cause for
termination occurs, unless a specific term is otherwise expressly
provided for in this Agreement.
(b) This Agreement shall terminate upon the occurrence of any of the
following events: (1) either party's failure to comply with any of
its material obligations under this Agreement, and to correct such
failure within a term of thirty (30) calendar days from the date of
written notice to that effect from the other party; (ii) the
bankruptcy of either party, any assignment by either party for the
benefit of its creditors, the inability of either party to pay its
debts as the same fall due, the appointment of a receiver for or any
execution levied upon all or substantially all of either party's
business or assets, or the filing of any petition for voluntary or
involuntary bankruptcy or similar proceeding for or against either
party; (iii) the expropriation of all or substantially all of the
business or assets of either party, or the nationalization of either
party; (iv) dissolution and/or liquidation or either party; (v) the
acquisition, directly or indirectly, of any part of the capital
stock or of any interest REPRESENTATIVE by any person or company
selling, manufacturing, importing or distributing PRODUCTS that, in
the sole judgment of the COMPANY, is actually or potentially
competitive with the PRODUCTS; and (vi) any change in the ownership
or management of REPRESENTATIVE which, in the sole judgment of the
COMPANY, is significant and which, also in the sole judgment of the
COMPANY, adversely affects the promotion, acceptance
-14-
and sale of the PRODUCTS pursuant to the terms and conditions of
this Agreement.
(C) Each of the following events shall be considered to constitute just
cause for unilateral termination of this agreement by the COMPANY or
REPRESENTATIVE, as the case may be, as provided for in Subparagraph
11(a) above: (i) non-compliance by REPRESENTATIVE or COMPANY, as the
case may be, with its obligations stipulated in Subparagraph 5(d) in
this Agreement; (ii) any act or omission of REPRESENTATIVE which
seriously affects the interest of the COMPANY; (iii) the bankruptcy
or insolvency of REPRESENTATIVE or COMPANY; (iv) the liquidation or
termination of the activities of REPRESENTATIVE or COMPANY; and (v)
with respect to termination of this Agreement by the COMPANY only,
COMPANY shall have (7) days from the date hereof to rescind and
terminate this Agreement by written notice to REPRESENTATIVE and in
the judgment of COMPANY's Board of Director's such recission and
termination is necessary in the best interests of COMPANY.
(d) Upon termination or expiration of this Agreement for any reason
whatsoever including, but not limited to, termination or expiration
by passage of time or nonrenewal, the parties expressly agree that
the following shall take effect: (i) all rights granted to
REPRESENTATIVE under or pursuant to this Agreement shall immediately
cease; (ii) REPRESENTATIVE shall be entitled to receive the payment
of a commission pursuant to and in accordance with the terms and
conditions of Paragraph 8 of this Agreement with respect to sales of
the PRODUCTS resulting from contracts or orders placed by
REPRESENTATIVE and accepted by the COMPANY on or before the date of
termination of this Agreement; (iii) all contracts or orders
placed by REPRESENTATIVE for the PRODUCTS and accepted, but not
filled or delivered by the COMPANY as of the date of termination,
shall be filled and delivered by the COMPANY subject to the terms
and conditions of this Agreement; (iv) all contracts or orders for
the PRODUCTS not accepted by the COMPANY on or before the date of
termination shall, at the COMPANY's sole option, be cancelled; and
(v) REPRESENTATIVE shall forthwith return to the COMPANY all
confidential Information and other promotional sales information
materials and literature, stationery, price lists, catalogues,
photographs, letters, and papers that shall have been furnished by
the COMPANY to REPRESENTATIVE during the term of this Agreement, it
being understood that no copies of this foregoing materials may be
retained by REPRESENTATIVE subsequent to the date of termination or
expiration of this Agreement.
(e) REPRESENTATIVE acknowledges and expressly agrees that the COMPANY
shall not be liable to REPRESENTATIVE and REPRESENTATIVE hereby
-15-
waives any claims for incidental or consequential damages of any
kind or character on account of the loss by REPRESENTATIVE of
prospective compensation or anticipated compensation, or of
expenditures, investments or commitments made in connection
therewith.
12. FORCE MAJEURE. Neither party shall be liable under this Agreement for
any loss or damage of any nature incurred as a result of any failures of delays
in performance because of any cause or circumstances beyond its control. This
includes, but is not limited to, any failures or delays in performance caused by
any strikes, lockouts, labor disputes, fires, acts of God or the public enemy,
riots, incendiaries, interference by civil or military authorities, compliance
with the laws, orders or policies of any governmental authority, delays in
transit or delivery on the part of transportation companies, or failures of
communication facilities or sources of raw materials.
13. RELATIONSHIP OF PARTIES - AUTHORITY OF REPRESENTATIVE. The parties
acknowledge and expressly agree that REPRESENTATIVE is an independent
contractor, and that this agreement shall not constitute REPRESENTATIVE as an
agent or partner of the COMPANY for any purpose. REPRESENTATIVE is not granted
any right or authority to assume or create any obligation or responsibility,
express or implied, on behalf of the COMPANY or to bind the COMPANY in any
manner whatsoever.
14. NOTICES. Any notice required or authorized to be given hereunder,
except for routine end typical shipment documentation, shall be communicated in
writing according to the terms and conditions of this Agreement and served by
certified letter return receipt requested or by facsimile or telex addressed to
the COMPANY or REPRESENTATIVE (as the case may be) at the applicable address set
forth in the beginning of this Agreement, or shall be given personally to an
officer of the other party confirmed by a writing at the time given or by cable
or telex. Notwithstanding, nothing contained herein shall justify or excuse
either party's failure to give oral notice for purposes of informing the other
party of circumstances or events that require prompt notification, but such oral
notice shall not satisfy the requirement of written notice.
15. ENTIRE AGREEMENT - SEPARATE COVENANTS - MODIFICATION - WAIVER.
(a) This Agreement, including the exhibits attached hereto, constitute
the entire agreement between the parties with respect to the subject
matter hereof and supersedes all prior agreements between the
parties relating to the same subject matter. Any change, addition to
or waiver of any of their terms and conditions of this Agreement
shall be binding upon the parties only if previously approved in
writing by the respective authorized representatives of the parties.
(b) The parties hereto have endeavored to limit REPRESENTATIVE's rights
to compete to the extent necessary to protect the COMPANY from
unfair
-16-
competition; however, they recognize that reasonable persons may
differ in making such determinations. Accordingly, the parties agree
that each of the covenants and provisions contained in this
Agreement shall be deemed severable and construed as independent of
any other covenant or provision. Moreover, if all or any portion of
a covenant or provision in this Agreement is held invalid,
unreasonable or unenforceable by a court or agency having valid
jurisdiction in an unappealed final decision to which COMPANY is a
party, the remaining covenants and provisions shall remain valid and
enforceable. REPRESENTATIVE expressly agrees to be bound by any
lesser covenant or provision subsumed within the terms of such
covenant or provision that imposes the maximum duty permitted by
law, as if the resulting covenant or provision were separately
stated in, and made a part of this Agreement and the parties
covenant and agree that they will promptly amend this Agreement to
the extent necessary and legally enforceable to accomplish the
intent of such parties in the provision hereof rendered
unenforceable.
(c) This Agreement and its valid execution shall constitute an accord,
satisfaction and waiver by each party of all rights and
indemnities, whether contractual, statutory or otherwise, against
the other party arising out of any previous relationship or contract
between the parties hereto. The failure of either party to require
the performance or any term or condition of this Agreement or the
waiver by either party of any breach of this Agreement shall not
prevent a later enforcement of such term or condition or be deemed a
waiver of any later breach.
16. DISPUTE RESOLUTION - ARBITRATION - GOVERNING LAW.
(a) Dispute Resolution. If any dispute, claim, question or disagreement
(a "Disputed Matter") arises between any of the parties hereto which
relates to this Agreement or a breach of this Agreement, the parties
shall use their best efforts to settle such Disputed Matter. If the
parties cannot reach a mutually agreeable solution to such Disputed
Matter within 20 days of one party sending the other party written
notice of such Disputed Matter (the "Resolution Period"), the
Disputed Matter shall be submitted to arbitration as hereinafter
provided.
(b) Arbitration. After the Resolution Period has expired, upon the
demand of any party to this Agreement, any controversy or claim
arising out of or relating to this Agreement, or any breach thereof,
including, without limitation, any claim that this Agreement or any
portion thereof is invalid, illegal or otherwise voidable, shall be
submitted to arbitration before and in accordance with the rules of
the American Arbitration Association and judgment upon the award
may be entered in any court having jurisdiction thereof.
Notwithstanding the foregoing sentence to the contrary, either party
shall have the right to seek and obtain any provisional remedy,
including, without limitation, a temporary restraining order,
injunctive
-17-
relief, or other equitable relief, from any court of competent
jurisdiction, as may be necessary in such party's sole subjective
judgment, to protect its interests during the pendency of such
arbitration. The prevailing party to said arbitration or judgment of
a court of competent jurisdiction shall be entitled to an award of
reasonable attorney's fees. The situs of time arbitration
proceedings shall be the regional office of the American Arbitration
Association which is located nearest to Orlando, Florida, or such
other office of the American Arbitration Association as the parties
hereto shall mutually agree.
(c) Governing Law. The provisions of this Agreement and the documents
delivered pursuant hereto shall be governed by and construed in
accordance with the laws of the State of Florida, without reference
to its principles of conflicts of laws.
17. ASSIGNMENT. REPRESENTATIVE, shall not assign its rights or delegate
its obligations under this Agreement without the prior written consent of the
COMPANY. In turn, the COMPANY reserves the right to assign or otherwise transfer
its rights or delegate its obligations under this Agreement, at its sole option
and without REPRESENTATIVE's prior consent.
18. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but such counterparts
shall together constitute one and the same Agreement.
19. INSURANCE. Each party shall maintain at its own expense, purchase from
an insurance company of its choice, and maintain during the entire term of this
Agreement, policies of Worker's Compensation Insurance, General Liability
Insurance, and Product Liability Insurance covering its responsibilities
regarding the PRODUCTS under this Agreement, provided, however, that only
COMPANY and not REPRESENTATIVE shall have the obligation to maintain Product
Liability Insurance. Upon request, either party shall provide the other with
evidence that such insurances are existing and maintained.
-18-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in duplicate, as of the date first above written, by their respective
authorized officials.
COMPANY:
WITNESS: CONVERSION TECHNOLOGIES
INTERNATIONAL, INC.
/s/ Xxxx Xxxxxx
----------------------------- By: /s/ Xxxxxxx Amt
---------------------------
Title: President
/s/ Xxxx Xxxxxx
-----------------------------
Print Name
REPRESENTATIVE:
ENGINEERED PRODUCTS SALES
ASSOCIATES
By: /s/ Xxxx X. Xxxx, Xx.
---------------------------
Title: President
-19-
Customer List and Performance Criteria
CTI/EPSA Agreement
EXHIBIT "A"
---------------------------------------------------------------------------------------------------------------------------------
Trade Historical Sales Performance
Customer Location Y/E 6-30-96 Y/E 6-30-97 97 - 5 mos. Avg. Sales/mo
7/1 - 11/22 29 Months
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
Conversion Distributors Supported by Engineered Product Sales Associates
---------------------------------------------------------------------------------------------------------------------------------
A&E Atlanta GA $ - $ - $ - $ -
Cedar Height Clay Company Ohio $ - $ - $ - $ -
* Chemical Distributors, Inc. NY $ 1,530 $ 6,631 $ 1,740 $ 000
Xxxxxxx Xxxxxxxxxx XX $ 3,400 $ 653 $ - $ 140
* Corrosion Specialties, Inc. TN,GA,SC,FL,NC $ 3,757 $ 1,973 $ - $ 000
Xxxxxx XxXxxxxx XX $ 3,076 $ (4) $ - $ 106
EPRO, Inc. OH,PA,MI,IL,KY $ - $ - $ - $ -
Fortune Metal Finishing MA $ - $ - $ - $ -
Genesis Bonded Abrasives TN $ - $ - $ - $ -
Kali Industries Supply co. NY $ - $ 2,408 $ - $ 83
Metal Finishing Supply Company WI $ - $ - $ - $ -
* Metal Preparations NY $ 16,114 $ 33,667 $ 14,609 $ 2,220
Metal Spray VA $ - $ - $ - $ -
* Midvale Industries MO,OK,IL $ 10,960 $ 14,237 $ - $ 869
* N.T. Xxxxxxx, Xx. XX,XX,XX,XX,XX $ 25,563 $ 96,913 $ 72,784 $ 6,733
* Omni Finishing, Inc. PA,NJ,DE,MD $ 5,443 $ 3,352 $ - $ 303
* Xxxxxx Xxxxxx Xxxxxxxxxx XX,XX,XX $ 11,696 $ 23,856 $ 10,000 $ 1,571
Xxxx Equipment IL $ - $ - $ - $ -
* Standard Sand & Silica FL $ 6,706 $ 9,120 $ - $ 546
* X.X. Xxxxxxxxx Co. MA $ 4,360 $ 3,660 $ - $ 277
--------------------------------------------------------------------------
Subtotal Distribution $ 92,605 $ 196,464 $ 99,133 $ 13,386
--------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
Manufacturers/OEM Accounts Supported by Engineered Product Sales Associates
---------------------------------------------------------------------------------------------------------------------------------
Able Alloy, Inc. Ohio $ - $ - $ - $ -
Advance Materials Corporation PA $ - $ - $ - $ -
AIM NJ,TX $ - $ - $ - $ -
American Marazzi NJ $ - $ - $ - $ -
Architerra NJ $ - $ - $ - $ -
Xxxxxxxxx Worldwide Industries PA,OK,IN $ - $ - $ - $ -
Bayer PA $ - $ - $ - $ -
Xxxxxxxx Xxxxx NJ,OH $ - $ - $ - $ -
B&W Tile CA $ - $ - $ - $ -
Caterpillar IL $ - $ - $ - $ -
Ceramix TX $ - $ - $ - $ -
------------------------------------------------------------------------------------------- ----------------------------------
Performance Criteria
Customer Total Average Monthly Running Sales
Revenues 1998 1999 2000
------------------------------------------------------------------------------------------- ----------------------------------
------------------------------------------------------------------------------------------- ----------------------------------
Conversion Distributors Supported by Engineered Product Sales Associates
------------------------------------------------------------------------------------------- ----------------------------------
A&E Atlanta $ - 1,000 1,200 1,560
Cedar Height Clay Company $ - 1,000 1,200 1,560
* Chemical Distributors, Inc. $ 9,901 1,000 1,200 1,560
Checker Industries $ 4,053 1,000 1,200 1,560
* Corrosion Specialties, Inc. $ 5,730 1,000 1,200 1,560
Xxxxxx XxXxxxxx $ 3,072 1,000 1,200 1,560
EPRO, Inc. $ - 1,000 1,200 1,560
Fortune Metal Finishing $ - 1,000 1,200 1,560
Genesis Bonded Abrasives $ - 1,000 1,200 1,560
Kali Industries Supply co. $ 2,408 1,000 1,200 1,560
Metal Finishing Supply Company $ - 1,000 1,200 1,560
* Metal Preparations $ 64,389 2,664 3,464 4,503
Metal Spray $ - 1,000 1,200 1,560
* Midvale Industries $ 25,197 1,000 1,200 1,560
* N.T. Xxxxxxx, Co. $ 195,260 10,100 20,199 36,359
* Omni Finishing, Inc. $ 8,795 1,000 1,200 1,560
* Xxxxxx Xxxxxx Industries $ 45,552 1,885 2,262 2,940
Xxxx Equipment $ -- 1,000 1,200 1,560
* Standard Sand & Silica $ 15,826 1,000 1,200 1,560
* X.X. Xxxxxxxxx Co. $ 8,020 1,000 1,200 1,560
--------------- ----------------------------------
Subtotal Distribution $ 388,201 $29,649 $43,925 $67,202
--------------- ----------------------------------
------------------------------------------------------------------------------------------- ----------------------------------
Manufacturers/OEM Accounts Supported by Engineered Product Sales Associates
------------------------------------------------------------------------------------------- ----------------------------------
Able Alloy, Inc. $ - 500 750 1,125
Advance Materials Corporation $ - 500 750 1,125
AIM $ - 500 750 1,125
American Marazzi $ - 500 750 1,125
Architerra $ - 500 750 1,125
Xxxxxxxxx Worldwide Industries $ - 500 750 1,125
Bayer $ - 500 750 1,125
Xxxxxxxx Xxxxx $ - 500 750 1,125
B&W Tile $ - 500 750 1,125
Caterpillar $ - 500 750 1,125
Ceramix $ - 500 750 1,125
Customer List and Performance Criteria
CTI/EPSA Agreement
EXHIBIT "A"
---------------------------------------------------------------------------------------------------------------------------------
Trade Historical Sales Performance
Customer Location Y/E 6-30-96 Y/E 6-30-97 97 - 5 mos. Avg. Sales/mo
7/1 - 11/22 29 Months
---------------------------------------------------------------------------------------------------------------------------------
Certainteed Corporation PA,IN $ - $ - $ - $ -
Church & Xxxxxx NJ $ - $ - $ - $ -
Crossville Ceramics TN $ - $ - $ - $ -
CSX Corporation PA,WV,KY $ - $ - $ - $ -
Concure PA $ - $ - $ - $ -
Conrail NY $ - $ - $ - $ -
Cutter Company, Inc. MA $ - $ - $ - $ -
Daltile CA,TX,PA $ - $ - $ - $ -
Ebara Solar, Inc. Ohio $ - $ - $ - $ -
EPL Ceraminc Materials IN $ - $ - $ - $ -
Xxxxxxxx Tile PA,NE $ - $ - $ - $ -
Epro, Inc. Ohio $ - $ - $ - $ -
Flexbond PA $ - $ - $ - $ -
Forever New PA $ - $ - $ - $ -
Florida Tile FL $ - $ - $ - $ -
Hztchsner Manufacturing NH $ - $ - $ - $ -
Glit, Inc. GA $ - $ - $ - $ -
Grand Northern Products MN $ - $ - $ - $ -
Interceramics USA PA,TX $ - $ - $ - $ -
KPT USA IN $ - $ - $ - $ -
Laufen USA Ohio $ - $ - $ - $ -
Marion Ceramics SC $ - $ - $ - $ -
Metropolitan Ceramic Tile PA,OH $ - $ - $ - $ -
Neweil Companies OH,PA $ - $ - $ - $ -
O-C Fiberglass OH $ - $ - $ - $ -
Poroclonite OH $ - $ - $ - $ -
Xxxxx Xxxxxxx - United Aircraft CT $ - $ - $ - $ -
Quarry Tile Company PA,WA $ - $ - $ - $ -
Royal Monarch - St. Georages Group PA $ - $ - $ - $ -
Jacksonville mfg.., Inc. (Regalware AR $ 6,640 $ 8,120 $ 3,500 $ 630
Sauereisen Coatings Company PA $ - $ - $ - $ -
Sandcamp Abrasives Ohio $ - $ - $ - $ -
Seneca Tiles OH $ - $ - $ - $ -
Xxxxxxx Xxxxxxxx OH $ - $ - $ - $ -
Sonoma Tile PA,CA,TX $ - $ - $ - $ -
St. Georges Group PA $ - $ - $ - $ -
Standard Ceramics Supply PA $ - $ - $ - $ -
------------------------------------------------------------------------------------------- ----------------------------------
Performance Criteria
Customer Total Average Monthly Running Sales
Revenues 1998 1999 2000
------------------------------------------------------------------------------------------- ----------------------------------
Certainteed Corporation $ - 500 750 1,125
Church & Xxxxxx $ - 500 750 1,125
Crossville Ceramics $ - 500 750 1,125
CSX Corporation $ - 500 750 1,125
Concure $ - 500 750 1,125
Conrail $ - 500 750 1,125
Cutter Company, Inc. $ - 500 750 1,125
Daltile $ - 500 750 1,125
Ebara Solar, Inc. $ - 500 750 1,125
EPL Ceraminc Materials $ - 500 750 1,125
Xxxxxxxx tile $ - 500 750 1,125
Epro, Inc. $ - 500 750 1,125
Flexbond $ - 500 750 1,125
Forever New $ - 500 750 1,125
Florida Tile $ - 500 750 1,125
Hztchsner Manufacturing $ - 500 750 1,125
Glit, Inc. $ - 500 750 1,125
Grand Northern Products $ - 500 750 1,125
Interceramics USA $ - 500 750 1,125
KPT USA $ - 500 750 1,125
Laufen USA $ - 500 750 1,125
Xxxxxx Ceramics $ - 500 750 1,125
Metropolitan Ceramic Tile $ - 500 750 1,125
Neweil Companies $ - 500 750 1,125
O-C Fiberglass $ - 500 750 1,125
Poroclonite $ - 500 750 1,125
Xxxxx Xxxxxxx - United Aircraft $ - 500 750 1,125
Quarry Tile Company $ - 500 750 1,125
Royal Monarch - St. Georages Group $ - 500 750 1,125
Jacksonville mfg.., Inc. (Regalware $ 18,260 630 630 630
Sauereisen Coatings Company $ - 500 750 1,125
Sandcamp Abrasives $ - 500 750 1,125
Seneca Tiles $ - 500 750 1,125
Xxxxxxx Xxxxxxxx $ - 500 750 1,125
Sonoma Tile $ - 500 750 1,125
St. Georges Group $ - 500 750 1,125
Standard Ceramics Supply $ - 500 750 1,125
Customer List and Performance Criteria
CTI/EPSA Agreement
EXHIBIT "A"
---------------------------------------------------------------------------------------------------------------------------------
Trade Historical Sales Performance
Customer Location Y/E 6-30-96 Y/E 6-30-97 97 - 5 mos. Avg. Sales/mo
7/1 - 11/22 29 Months
---------------------------------------------------------------------------------------------------------------------------------
Xxxxx Ceramics, Inc. OH $ - $ - $ - $ -
Stonelight PA,CA $ - $ - $ - $ -
Summitville Tile, Inc. OH,NC $ - $ - $ - $ -
Synergy PA $ - $ - $ - $ -
Terra Design NJ $ - $ - $ - $ -
Xxxxx Xxxxx Ceramics IN $ - $ - $ - $ -
Tile Cera TN $ - $ - $ - $ -
Tile Works PA/IA $ - $ - $ - $ -
Triple G. coatings NJ $ - $ - $ - $ -
US Ceramics Tile Company OH $ - $ - $ - $ -
Upstate Auto Warehouse NY $ 3,450 $ 2,207 $ - $ 000
X.X. Xxxx XX $ - $ - $ - $ -
X.X. Xxxx TN $ - $ - $ - $ -
Westinghouse NC $ - $ - $ - $ -
Westin Quarry Tile PA, CA $ - $ $ - $ -
Subtotal Direct Sales $ 10,090 $ 10,327 $ 3,500 $ 825
--------------------------------------------------------------------------
Total $ 102,694 $ 206,790 $ 102,633 $ 14,211
--------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
Conversion Customers and Distributors Not Covered By Agreement with Engineered Product Sales Associates
---------------------------------------------------------------------------------------------------------------------------------
Agmet Metals OH $ - $ - $ - $ -
A-Line Products Corp. $ 300 $ - $ - $ 10
Aven Tools $ - $ 15 $ - $ 1
American Econotread, Inc. $ 23 $ - $ - $ 1
Air Response & Services. $ - $ 430 $ - $ 15
Advanced Finishing Equip. $ - $ - $ 35 $ 1
Acquarius Coatings $ - $ 580 $ - $ 20
Xxxxxxxx Xxxxx & Co. $ 296 $ - $ - $ 10
Bimark Wirral, Ltd. England $ - $ - $ - $ -
Casual Patio Design, Inc $ - $ 350 $ - $ 00
Xxxxxxxxxx Xxxxx $ - $ - $ 35 $ 1
Coronado Laboratories, Inc. $ - $ 175 $ - $ 6
Conlog Control, Ltd. Israel $ 6,728 $ - $ 8,420 $ 522
Xxxxxxxxx Brothers, Inc. $ 570 $ - $ - $ 20
Cytech Laboratories, Inc. FL $ 13 $ 2,124 $ - $ 00
Xxxxxx Xxxxx $ 8,078 $ - $ - $ 279
------------------------------------------------------------------------------------------- ----------------------------------
Performance Criteria
Customer Total Average Monthly Running Sales
Revenues 1998 1999 2000
------------------------------------------------------------------------------------------- ----------------------------------
Xxxxx Ceramics, Inc. $ - 500 750 1,125
Stonelight $ - 500 750 1,125
Summitville Tile, Inc. $ - 500 750 1,125
Synergy $ - 500 750 1,125
Terra Design $ - 500 750 1,125
Xxxxx Xxxxx Ceramics $ - 500 750 1,125
Tile Cera $ - 500 750 1,125
Tile Works $ - 500 750 1,125
Triple G. coatings $ - 500 750 1,125
US Ceramics Tile Company $ - 500 750 1,125
Upstate Auto Warehouse $ 5,656 500 750 1,125
W.A. Ritz $ - 500 750 1,125
X.X. Xxxx $ - 500 750 1,125
Westinghouse $ - 500 750 1,125
Westin Quarry Tile $ - 500 750 1,125
Subtotal Direct Sales $ 23,916 $31,130 $46,380 $ 69,255
------------------------------------------------------------------------------------------- ----------------------------------
Total $ 412,117 $60,779 $90,305 $136,457
------------------------------------------------------------------------------------------- ----------------------------------
------------------------------------------------------------------------------------------- ----------------------------------
Conversion Customers and Distributors Not Covered By Agreement with Engineered Product
Sales Associates
------------------------------------------------------------------------------------------- ----------------------------------
Agmet Metals $ - N/A N/A N/A
A-Line Products Corp. $ 000 X/X X/X X/X
Xxxx Tools $ 15 N/A N/A N/A
American Econotread, Inc. $ 23 N/A N/A N/A
Air Response & Services. $ 000 X/X X/X X/X
Advanced Finishing Equip. $ 00 X/X X/X X/X
Xxxxxxxxx Xxxxxxxx $ 580 N/A N/A N/A
Xxxxxxxx Xxxxx & Co. $ 000 X/X X/X X/X
Bimark Wirral, Ltd. $ - 500 750 1,125
Casual Patio Design, Inc $ 000 X/X X/X X/X
Xxxxxxxxxx Xxxxx $ 00 X/X X/X X/X
Xxxxxxxx Laboratories, Inc. $ 000 X/X X/X X/X
Conlog Control, Ltd. $ 15,148 N/A N/A N/A
Xxxxxxxxx Brothers, Inc. $ 000 X/X X/X X/X
Cytech Laboratories, Inc. $ 2,136 N/A N/A N/A
Daewoo $ 8,078 N/A N/A N/A
Customer List and Performance Criteria
CTI/EPSA Agreement
EXHIBIT "A"
---------------------------------------------------------------------------------------------------------------------------------
Trade Historical Sales Performance
Customer Location Y/E 6-30-96 Y/E 6-30-97 97 - 5 mos. Avg. Sales/mo
7/1 - 11/22 29 Months
---------------------------------------------------------------------------------------------------------------------------------
Deacon Manufacturing, Inc. $ - $ 25 $ - $ 1
Deltek, Inc. $ - $ 21 $ - $ 1
Dulubak OH
Dragon Engineering co., Ltd. $ - $ 22 $ - $ 1
Eviro-Blast $ 1,325 $ 1,040 $ - $ 82
Entrepreneurial Association $ - $ 7 $ - $ 0
* Xxxxx Abrasive Systems CA $ 33,412 $ 16,115 $ 1,720 $ 1,767
Grand Northern Products $ 494 $ - $ 350 $ 29
Guyson Industries $ 125 $ - $ - $ 4
Hatachi SC
Kleifer & Xxxxxx, Inc. $ - $ 720 $ - $ 25
KOR $ - $ 626 $ - $ 22
* Xxxxxx Industries $ - $ 612 $ - $ 21
Kentucky Apparel & Laundry $ 500 $ - $ - $ 17
Metal Dimensions $ (333) $ - $ - $ (11)
Metal Fini Canada $ - $ - $ - $ -
MidWest Finishing $ 585 $ - $ - $ 20
MJD Enterprises, Inc. $ 2,100 $ - $ - $ 72
X.X. Xxxxxxx, Inc. $ 7,975 $ - $ - $ 275
* Xxxxxxx Supply $ 2,996 $ - $ - $ 103
* Rosber, S.A. de C.V. Mexico $ 4,320 $ - $ - $ 149
Xxxxxxxxxx Saw Shop $ 15 $ - $ - $ 1
* Xxx Xxxxxxx, Inc. $ 5,798 $ - $ - $ 000
Xxxxxxx Xxxxxxxx $ - $ - $ 105 $ 4
Storchem, Inc. $ - $ 986 $ - $ 34
Southwest Abrasives Co. $ 138 $ - $ - $ 0
Xxxxx Xxxxxxxxxxxxx XX,XX,XX
Spesco, Inc. $ 1,056 $ 580 $ 580 $ 76
Techniglass OH
Xxxxxxxx OH
Toshiba NY
SONY IL,AR
Viking Engineering co. $ - $ 40 $ - $ 0
Xxxx-Xxxxx Xxxxxxx Xxxxxx Xxxxxxx $ 7,412 $ 18,108 $ 7,320 $ 1,132
Vangkoe Industries, Inc. $ - $ 766 $ - $ 00
X.X. Xxxx, Xx. $ 7,560 $ - $ - $ 261
Wooster Products $ 7,005 $ - $ - $ 242
------------------------------------------------------------------------------------------- ----------------------------------
Performance Criteria
Customer Total Average Monthly Running Sales
Revenues 1998 1999 2000
------------------------------------------------------------------------------------------- ----------------------------------
Deacon Manufacturing, Inc. $ 25 N/A N/A N/A
Deltek, Inc. $ 21 N/A N/A N/A
Dulubak
Dragon Engineering co., Ltd. $ 22 N/A N/A N/A
Eviro-Blast $ 2,365 N/A N/A N/A
Entrepreneurial Association $ 7 N/A N/A N/A
* Xxxxx Abrasive Systems $ 51,247 N/A N/A N/A
Grand Northern Products $ 000 X/X X/X X/X
Guyson Industries $ 125 N/A N/A N/A
Hatachi
Kleifer & Xxxxxx, Inc. $ 000 X/X X/X X/X
KOR $ 000 X/X X/X X/X
* Xxxxxx Industries $ 000 X/X X/X X/X
Xxxxxxxx Apparel & Laundry $ 000 X/X X/X X/X
Metal Dimensions $ (333) N/A N/A N/A
Metal Fini $ - N/A N/A N/A
MidWest Finishing $ 000 X/X X/X X/X
MJD Enterprises, Inc. $ 2,100 N/A N/A N/A
X.X. Xxxxxxx, Inc. $ 7,975 N/A N/A N/A
* Xxxxxxx Supply $ 2,996 N/A N/A N/A
* Rosber, S.A. de C.V. $ 4,320 N/A N/A N/A
Xxxxxxxxxx Saw Shop $ 15 N/A N/A N/A
*Xxx Xxxxxxx, Inc. $ 5,798 N/A N/A N/A
Xxxxxxx Holdings $ 000 X/X X/X X/X
Storchem, Inc. $ 000 X/X X/X X/X
Xxxxxxxxx Abrasives Co. $ 000 X/X X/X X/X
Xxxxx Xxxxxxxxxxxxx X/X X/X X/X
Spesco, Inc. $ 2,216 N/A N/A N/A
Techniglass
Xxxxxxxx
Toshiba
SONY
Viking Engineering co. $ 40 N/A N/A N/A
Vacu-Blast Limited $ 32,840 N/A N/A N/A
Vangkoe Industries, Inc. $ 000 X/X X/X X/X
X.X. Xxxx, Xx. $ 7,560 N/A N/A N/A
Wooster Products $ 7,005 N/A N/A N/A
Customer List and Performance Criteria
CTI/EPSA Agreement
EXHIBIT "A"
---------------------------------------------------------------------------------------------------------------------------------
Trade Historical Sales Performance
Customer Location Y/E 6-30-96 Y/E 6-30-97 97 - 5 mos. Avg. Sales/mo
7/1 - 11/22 29 Months
---------------------------------------------------------------------------------------------------------------------------------
All Swimming Pool Plaster Decking Compound Producers
All seamless flooring compounders
--------------------------------------------------------------------------
Subtotal $ 201,196 $ 242,349 $ 121,023 $ 19,468
--------------------------------------------------------------------------
------------------------------------------------------------------------------------------- ----------------------------------
Performance Criteria
Customer Total Average Monthly Running Sales
Revenues 1998 1999 2000
------------------------------------------------------------------------------------------- ----------------------------------
All Swimming Pool Plaster Decking Compound Producers
All seamless flooring compounders
--------------- ----------------------------------
Subtotal $ 564,568
--------------- ----------------------------------
*CTI Distributor per map produced by Xxxxx Xxxxx
--------------------------------------------------------------------------------
Working Relationship between Conversion and EPSA
--------------------------------------------------------------------------------
Pricing and distribution
1 CTI will, with EPSA assistance, select and appoint distributors for its
products and establish performance criteria. The primary purpose of CTI's
distribution will be to market, sell and distribute abrasive materials in
small to modest quantities to end users and contractors. CTI will price
its abrasive products to encourage all customers to purchase CTI's
abrasive products from its appointed distributors.
2 CTI will establish distribution volume discounts for non-abrasive products
to encourage individual flooring and stucco contractors to seek out CTI
distributors for small volume purchases of colored particles and related
products such as plasters, pre-ceramic polymers and fillers.
3 EPS will methodically support CTI's distribution through monthly sales
meetings at the distributors offices, joint sales calls, communication of
CBI policies and procedures, technical support, and interactive
communication between CTI and the distribution.
4. EPSA will serve as CTI's representative for non abrasive products to
manufacturers, large volume users and compounders who offer the potential
to purchase large volumes of CTI materials or incorporate these materials
into their products for resale. EPSA will methodically support CTI's
effort to solicit these customers through individual and joint joint sales
calls, communication of CTI technical and commercial data, technical field
support, and interactive communication between CTI and its customers.
Exclusivity
1 CTI has the exclusive authority to appoint or terminate any distributor of
its products at any time.
2 EPSA will serve as CTI's exclusive sales representative to its appointed
domestic distributors east of the Mississippi River and be entitled to
sales commissions on all sales through these distributors CTI
distributors.
3 CTI may solicit and work directly with any non-distributor, manufacturer,
OEM producer or large volume user of its products and will not be
obligated to pay EPSA
Customer List and Performance Criteria
CTI/EPSA Agreement
EXHIBIT "A"
---------------------------------------------------------------------------------------------------------------------------------
Trade Historical Sales Performance
Customer Location Y/E 6-30-96 Y/E 6-30-97 97 - 5 mos. Avg. Sales/mo
7/1 - 11/22 29 Months
---------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------- ----------------------------------
Performance Criteria
Customer Total Average Monthly Running Sales
Revenues 1998 1999 2000
------------------------------------------------------------------------------------------- ----------------------------------
a commission on any sales. However, CTI may grant EPSA the exclusive right
to serve as CTI's representative or agent to specific customers. Only in
this instance will CTI pay a sales representative commission to EPSA.
Performance
1 The level EPSA's performance in working with CTI's distributors will be
evaluated quarterly and based upon a number of parameters such as
communications effectiveness, Distributor feed back, and overall sales
performance.
2 The level of EPSA in working with CTI's manufacturers, compounders and
OEM's will be evaluated quarterly and based upon sales call frequency,
depth of customer relationship and sales performance. Exclusivity will be
granted in 90 day increments until an agreed level of volume is achieved.
Once volume is achieved EPSA's performance will be reviewed quarterly
sales call frequency, and be evaluated upon and assessment of EPSA's
customer relationship and volume of sales
EXHIBIT B
PROPOSED COMMISSION SCHEDULE
"ENGINEERED PRODUCTS SALES ASSOCIATES"
ABRASIVES
----------------------------------------------------------------------------
Alumaglass Alumaglass Fired Ceramics, Fired Ceramics,
Visigrit Visigrit
----------------------------------------------------------------------------
Selling Price Incremental Selling Price Incremental
(per ton) Rate (per ton) Rate
----------------------------------------------------------------------------
($) (%) ($) (%)
----------------------------------------------------------------------------
----------------------------------------------------------------------------
300-349* 8 150-199 8
----------------------------------------------------------------------------
350-399 10 200-249 10
----------------------------------------------------------------------------
400-449 12 250-299 12
----------------------------------------------------------------------------
450-499 14 300-349 14
----------------------------------------------------------------------------
500-549 16 350-399 16
----------------------------------------------------------------------------
550-600 18 400-449 18
----------------------------------------------------------------------------
Above 600 20 Above 450 20
----------------------------------------------------------------------------
DECORATIVE PARTICLES
----------------------------------------
Sand & Feldspar Feldspar
----------------------------------------
Selling Price Incremental
(per ton) Rate
----------------------------------------
($) (%)
----------------------------------------
----------------------------------------
Less than 300* --
----------------------------------------
300-409 10
----------------------------------------
410-449 12
----------------------------------------
450-489 14
----------------------------------------
490-529 16
----------------------------------------
530-569 18
----------------------------------------
Above 570 20
----------------------------------------
