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EXHIBIT 10
SALES REPRESENTATIVE AGREEMENT
This Sales Representative Agreement (the "Agreement") entered into as
of July 12, 1997 by and between Ocurest Laboratories, Inc. of 0000 XXX
Xxxxxxxxx, Xxxx Xxxxx Xxxxxxx, Xxxxxxx 00000 (the "Company") and Focus on 4,
Ltd., 0 Xxxxx Xxxx, Xxxxxx, Xxxxxxxxx, XX00XX of London, England (the "Sales
Representative")
In consideration of the mutual promises and covenants contained below,
the parties agree as follows:
1. Services to be rendered. The Sales Representative shall perform
the following marketing and sales services to the best of its abilities
including, without limitation:
(A) Developing and implementing a marketing program and plan for sales
of the Company's eye care and other products for the consumer market
initially in England and thereafter throughout Europe and the Middle
East.
(B) Exercising responsibility for all sales resulting directly or
indirectly from the Sales Representative's introduction to, or other
initiation of business relationships with retail chains and other
distribution organizations, including all after-sales recordkeeping,
order processing and administration, and collection of payments on
these accounts.
(C) The Sales Representative shall sell, pursuant to the terms of this
Agreement, only to those customers for which the Sales Representative
has received the Company's prior written approval. Company approval
shall be conclusively evidenced by the signature of the Company's
authorized representative on the "Sales Representative Customer
Approval Form" which names the proposed customer.
2. Independent contractor status. The Sales Representative expressly
acknowledges that it will be acting as an independent contractor and not as an
employee, for all purposes, including payment of United States or United Kingdom
Social Security withholding tax and all other Federal, state and local taxes.
3. Performance of Sales Representative. The Sales Representative will
use its best efforts to render its services to be provided hereunder in
accordance with applicable professional standards.
4. Commissions and other payments. The Sales Representative's
compensation under this Agreement is limited to: (A) The delivery concurrently
with the execution of this Agreement of 1,000,000 Units (the "Units"), each
consisting of One Share of Common Stock and One Class A Redeemable Common Stock
Purchase Warrant. The Units are identical to those sold by the Company in its
initial public offering on November 12, 1996, and (B) Two Per Cent (2%) of
aggregate net paid invoices up to $9,999,999 and five (5%) percent in excess of
ten million ($10,000,000) Dollars received from customers introduced to the
Company by the Sales Representative or a distributor introduced to the Company
by the Sales Representative provided that any fees payable by the Company to any
distributor introduced by the Sales Representative shall be deducted from the
commission payable to the Sales Representative. For purposes of this Agreement a
"net" paid invoice" shall equal the gross amount of a paid invoice, less
allowances and returns. Commissions shall be paid to the Sales Representative by
the twentieth (20th) day of the month immediately following the month in which
payment on invoices is received. Payment of commissions to the Sales
Representative shall be accompanied by a statement of Commissions. The Company
shall have the absolute right, in its discretion to refuse to accept any orders
procured through the Sales Representative and to refuse to ship the goods
described therein or to make any allowances or
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adjustments to orders and accept any returns of any shipments. The Company shall
notify the Sales Representative in writing of such refusals, allowances or
adjustments.
(5) Investment Representations. The Sales Representative
represents and warrants to the Company with respect to its receipt of the Units
as follows:
(A) It is a resident of the United Kingdom.
(B) It can bear the economic risk of this investment and can afford a
complete loss thereof.
(C) It has sufficient knowledge and experience in business and financial
matters to evaluate the risks of the investment and to make an informed
investment decision with respect thereto.
(D) It has had the opportunity to ask questions of, and to receive answers
from, the Company and its representatives, with respect to the Company.
It acknowledges receipt of a copy of the Company's prospectus dated
November 12, 1996, the Company's 10-KSB report for the year ended
December 31, 1996 and the Company's 10-QSB report for the period ended
March 31, 1997.
(E) The Sales Representative is aware that the purchase or ownership of the
Units is a speculative investment involving a high degree of risk and
that there is no guarantee that the undersigned will realize any gain
from this investment and that the Sales Representative could lose the
total amount of the Sales Representative's investment.
(F) The Sales Representative understands that the Units have not been
registered under the Securities Act of 1933, as the amendment (the
"Act"), nor pursuant to the provisions of the securities or other laws
of any other applicable jurisdictions. The Sales Representative
understands that the Units are being sold and/or transferred in
reliance upon the exemption for private offerings contained in Section
4(2) of the Act. The Sales Representative is fully aware that the Units
to be acquired or owned by the Sales Representative are acquired or
owned in reliance upon such exemptions based upon the Sales
Representative's representations, warranties and agreements. The Sales
Representative is fully aware that the Sales Representative must bear
the economic risk of the Sales Representative's investment herein for
the period of time which is required by the Act because the offering
has not been registered under the Act and that the Sales
Representative's investment in the Units cannot be offered or sold
unless the subject securities are subsequently registered under the Act
or an exemption from such registration is available. The undersigned
understands that no federal or state agency has passed upon or made any
recommendation or endorsement of the Units.
(G) The Sales Representative is making the investment or becoming an owner
of the Units for the Sales Representative's own account and not for the
account of others and for investment purposes only and not with a view
to or for the transfer, assignment, resale or distribution thereof, in
whole or in part. The Sales Representative has no present plans to
enter into any such contract, undertaking, agreement or arrangement.
The Sales Representative understands that the statutory basis on which
the Units are being sold or transferred would not be available if the
Sales Representative's present intention were to hold the Units for a
fixed period or until the occurrence of a certain event. The Sales
Representative realizes that, in the view of the SEC, a purchase now
with a present intent to resell by reason of a foreseeable specific
contemplated liquidation, or settlement of any loan of the Sales
Representative, and for which such Units may be pledged as security or
as donations to religious or charitable institutions for the purpose of
securing a deduction on an income tax return, would, in fact represent
a purchase with an intent inconsistent
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with the Sales Representative's representations to the Company, and
the SEC would then regard such sale as a sale for which the exemption
from registration is not available. The Sales Representative will not
pledge, transfer or assign the Units.
(H) The Sales Representative acknowledges that the certificates for the
Units which the Sales Representative will receive will contain a legend
substantially as follows:
THE SECURITIES WHICH ARE REPRESENTED BY THIS CERTIFICATE HAVE NOTBEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THE SECURITIES
HAVE BEEN ACQUIRED FOR INVESTMENT PUPOSES ONLY AND NOT WITH THE VIEW TO
DISTRIBUTION OR RESALE, AND MAY NOT BE SOLD, TRANSFERRED, MADE SUBJUECT
TO A SECURITY INTEREST, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF
UNLESS AND UNTIL REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR AN OPINION OF COUNSEL FOR THE COMPANY IS RECEIVED THAT
REGISTRATION IS NOT REQUIRED UNDER SUCH ACT.
The Sales Representative further acknowledges that any necessary stop
transfer orders will be placed upon the certificates for the Units in
accordance with the Act. The Sales Representative further acknowledges
that the Company is under no obligation to aid the Sales Representative
in obtaining any exemption from registration requirements.
The Company shall promptly register at its expense, the Units being
delivered hereunder to the Sales Representative under the Securities
Act of 1933, as amended, (the "Act") and use its best efforts to have
such Registration Statement declared effective as promptly as is
reasonably practicable after the filing. The Registration Statement
shall be filed with the Securities and Exchange Commission not later
than August 10, 1997. The Sales Representative shall furnish the
Company with all relevant information concerning the proposed method of
sale or other disposition of Units and such other information as may be
reasonably required by the Company properly to prepare and file such
Registration Statement in accordance with applicable provisions of the
Act and the rules and regulations promulgated thereunder. The Company
shall use its best efforts to have the Units listed for trading on
NASDAQ concurrently with the effectiveness of said Registration
Statement or as promptly thereafter as is reasonably practicable.
6. Warranty against prior existing restrictions. The Sales
Representative represents and warrants to the Company that it is not a party to
any agreement containing a non-competition clause or other restriction with
respect to: (A) the services which it is required to perform hereunder; or (B)
the use or disclosure or any information directly or indirectly related to the
Company's business, or to the services it is required to render pursuant hereto.
7. Prohibition against assignment. The Sales Representative agrees, for
itself and on behalf of it's successors, and any person or persons claiming
under him by virtue hereof, that this Agreement and the rights, interests, and
benefits hereunder cannot be assigned, transferred, pledged, or hypothecated in
any way and shall be null and void and shall relieve the Company of any and all
obligations or liability hereunder.
8. Termination of agreement. This Agreement shall continue for a term
of 5 years and may be terminated thereafter at any time by the Company upon the
giving of two (2) weeks' written notice unless extended by mutual written
consent of both parties.
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9. Rights upon termination. Upon the expiration or termination of this
Agreement for any reason, whether with or without cause, the Sales
Representative shall be entitled only to accrued commissions on those contracts
already signed and accepted by the Company prior to the effective data thereof.
Such accrued commissions shall be paid to the Sales Representative within thirty
(30) days of the Company's receipt of the applicable invoice amounts.
10. 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 Sales Representative.
11. Binding effect. This Agreement shall be binding upon, and inure to
the benefit of, the Company and its successors, assigns heirs, legal
representatives, executors, and administrators.
12. Governing Law. This Agreement shall be subject to, and governed by,
the laws of the State of Florida.
13. Headings. The headings in this Agreement are inserted for
convenience only and shall not be considered in interpreting the provisions
hereof.
14. Notice. All notices shall be given in writing and sent by
registered or certified mail, return receipt requested, or by a recognized
international overnight courier, and shall be addressed to:
in the case of the Company
Xxxxxx X. Xxxxxx, Xx.
Ocurest Laboratories, Inc.
0000 XXX Xxxxxxxxx
Xxxx Xxxxx Xxxxxxx, Xxxxxxx 00000
in the case of the Sales Representative-
Focus 4, Ltd.
0 Xxxxx Xxxx
Xxxxxx, Xxxxxxxxx
Xxxxxx, Xxxxxxx HA99EB
15. Counterparts. This Agreement may be executed by facsimile and in
two or more counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement
on July 12, 1997.
Sales Representative: Company:
Focus on 4, Ltd. Ocurest Laboratories, Inc.
By: ___________________ By: ____________________
Xxxxxxxx Xxxxx Xxxx X. Xxxxxxx
President Executive Vice President
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