Exhibit 10.28
SALES MANAGEMENT AGREEMENT
This SALES MANAGEMENT AGREEMENT (the "Agreement") is entered
into this __ day of May, 1998 by and between J.K. LIMITED, INC., a Florida
corporation (hereinafter referred to as the "Agent") and PRESTIGE FINE JEWELRY
LLC, a Delaware limited liability company (hereinafter referred to as the
"Company").
IN CONSIDERATION of the mutual promises and covenants contained below,
the parties agree as follows:
1. Appointment of Agent
The Company hereby appoints the Agent as an independent, non-exclusive
sales representative provided, however, that with respect to sales made to all
accounts listed in Appendix A (the "Exclusive Customers") Agent shall act as the
Company's exclusive sales representative. For the twelve (12) month period
immediately following the date of this Agreement, the Agent shall produce sales
with respect to the Exclusive Customers in an amount of not less than
$10,000,000.00. The Agent may sell -------- ------- on a non-exclusive basis to
any other customers acceptable to the Company (the "Non-Exclusive Customers")
(the Exclusive Customers and the Non-Exclusive Customers are hereinafter
sometimes collectively referred to as the "Accounts").
Notwithstanding the above paragraph the Agent will not be responsible for
performance minimums in the event the Company fails to meet shipping deadlines,
order quantities, or quality of merchandise acceptable to the Agent's Exclusive
Customers.
2. Powers and Limitations of Agent
The Agent is retained to contact the Accounts, take orders from the
Accounts on behalf of the Company and to request quotations of prices for
products of the Company. All orders are to be transmitted by the Account
directly to the Company's office for consideration by authorized Company
personnel. No purchase order shall be binding upon the Company until accepted by
the Company in writing. For the purpose of this Agreement authorized personnel
shall be construed to mean those persons whose names and titles are set forth in
Exhibit "B", a copy of which is attached hereto and incorporated herein by
reference.
The Agent has no authority to:
(a) make or modify any warranty with respect to any products; and
(b) quote any price for any product which varies from that contained in the
Company's effective and applicable price list.
3. Independent Contractor Status
The Agent expressly acknowledges that it shall be acting as an independent
contractor and not as an employee, for all purposes including the payment of
payroll and income taxes, worker's compensation, and the like. The Agent is free
to set its own hours and appointments.
4. Performance of Agent
The Agent shall devote such time and energies to the performance of its
duties as reasonably required by the Company. All work performed by the Agent
shall be of the highest professional and ethical standards and performed to the
Company's reasonable satisfaction.
5. Commissions The Agent's compensation under this Agreement shall be six
(6%) percent of the Gross Sales of products by the Company to the Accounts
during the term of this Agreement, unless otherwise set forth in mutually agreed
to amendments to this Agreement. For the purpose hereof, "Gross Sales" shall
mean the gross dollar amount of the invoices evidencing sales to Accounts less
any and all deductions, adjustments or allowances taken by or granted to the
Accounts for any reason and at any time (the "Adjustments"). Commissions shall
be paid on the fifteenth of the month following the month in which the Company
ships such products. All Adjustments shall be made in subsequent months.
6. Expenses All of the Agent's expenses shall be borne by the Agent,
including, but not limited to, travel, lodging, office and overhead.
7. Trade Secrets
The Agent acknowledges that the Company's special business techniques,
marketing plans, financial accounting, sales, product pricing information, list
of customers, and other information regarding manufacture or distribution of
products:
(a) belongs to the Company;
(b) constitutes specialized and highly confidential information not
generally known in the industry; and
(c) constitutes trade secrets of the Company.
Accordingly, the Agent recognizes that it is essential to keep such
information confidential and agrees that during the term of this Agreement and
for a period of thirty-six (36) months thereafter, it will keep all such
information confidential and shall not disclose it to others.
8. Samples
Company shall supply a reasonable amount of samples of the product to the
Agent in aid of sales. All expenses of all samples retained by any Account for
purposes of testing shall be borne by the Company.
9. Term
This Agreement shall commence upon its execution and terminate on the
fourth anniversary of said execution date.
This agreement shall be automatically extended (one) year for each sales
productions requirement met by the Agent. Therefore, if the Agent meets the
$10,000,000.00 sales in the first (12) months and sales increase by
$8,000,000.00 annually, the Agreement extends for the (one) year, etc.
10. Termination of Agreement
Either party can terminate this Agreement for any reason without cause by
giving the other party written notice thirty (30) days in advance of the date of
such termination. Either party can terminate the Agreement for cause in the
event the other party breaches a material term hereof, by giving the other party
thirty (30) written notice.
11. Rights Upon Termination
(a) Should the Company terminate this Agreement prematurely, without cause,
then, in that event, the Agent shall be entitled to six (6%) percent commission
on gross sales for the remaining portion of the Agreement or twenty-four (24)
months, whichever is longer, relative to sales made to the Exclusive Customers.
(b) Should the Agent terminate this Agreement without cause, or should the
Company terminate this Agreement, for cause, then, in that event, the Agent
shall only be entitled to receive commissions on Gross Sales with respect to
orders accepted by the Company prior to the date of termination.
(c) Upon termination, for whatever reason, the Agent shall immediately, at
its own expense, return to the Company all sales material, samples, and other
property belonging to or relating to the operations of the Company without
retaining or providing to anyone else copies or extracts of the same. The
Company retains the right to hold the Agent's commission checks until all such
materials, in the possession of the Agent are returned to the Company.
12. Production Requirements
In the event the Agent fails to produce sales with respect to Exclusive
Customers in the amounts listed below for any (12) month period following the
execution of this Agreement, this Agreement may be terminated "for cause".
Annual Requirements:
Year 1: $10,000,000.00
Year 2: $16,000,000.00
Year 3: $24,000,000.00
Year 4: $32,000.000.00
13. Modification and Waiver
No waiver or modification of this Agreement shall be valid unless it is in
writing and signed by the Company and the Agent.
14. Complete Understanding
This Agreement constitutes the entire and exclusive agreement between the
parties with respect to the subject matter and supersedes and cancels all
previous agreement with respect to this subject.
15. Indemnification
The Agent shall indemnify and hold the Company and its employees and agents
harmless for any damages or claims incurred by any of them as a result of any
breach by the Agent of any of its obligations or covenants contained herein.
16. Governing Law
This Agreement shall be interpreted and governed by the laws of New York
without reference to conflict or law principles.
17. Assignment
The Agent's talents relative to the terms and conditions of this Agreement
are construed to be unique and particular to the Agent and as such the Agent may
not assign or transfer the rights or obligations under this agreement without
the prior written consent of the Company. Any attempted assignment without the
required consent of the Company shall be deemed to constitute a breach of the
agreement.
Date: J.K. LIMITED, INC.
a Florida corporation
Date: By: /s/ Xxxx Xxxxxxxx
Xxxx Xxxxxxxx, President
PRESTIGE FINE JEWELRY
a Delaware LLC
By: /s/ Xxxxxxx XxXxxxxx
EXHIBIT A
List of Exclusive Accounts
1. Wal-Mart
2. K-Mart
3. Service Merchandise
4. AAFES
5. Rent-A-Center
6. Sams Wholesale
7. Price Costco
8. Zale's Jewelers
9. Xxxx'x Jewelers
10. Xxx Xxxx
11. Target
12. Xxxxxx'x Jewelers
13. Balley, Banks and Xxxxxx
14. Xxxxxxxx'x
15. USAA
After 12 months from execution of this Agreement, Company has the right
to conduct sales with any company in Exhibit A provided that written notice is
given to Agent 30 days prior and that no sales have been introduced by Agent
prior to or at that time.
