SALES REPRESENTATIVE AGREEMENT
Exhibit 10.8
SALES REPRESENTATIVE AGREEMENT
This Agreement (the "Agreement") dated as of the 30th day of May, 2013 ("Effective Date") is made between Polybrite International, Inc, an Illinois corporation, with its principal office located at 0000 Xxxx Xxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000 ("POLYBRITE"), and LED LIGHTING COMPANY, INC., a Delaware Corporation, with its principal office located at 0000 Xxxxxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxxx 00000 ("REPRESENTATIVE").
Recitals
A.
REPRESENTATIVE entered into business discussions with POLYBRITE on a non-exclusive, best efforts basis and wishes to continue to assist POLYBRITE to develop new domestic and international business opportunities as follows:
i.
REFERRALS - To identify and refer to POLYBRITE companies, business entities, individuals as well as national, state or local governments, municipalities, and/or agencies or sub-divisions thereof, including state-owned utilities and/or subsidiaries or affiliates thereof, that purchase, resell, distribute current and/or future POLYBRITE Products (as hereinafter defined), including, but not limited to those parties listed on Schedule 1 hereto;
ii.
INTRODUCTIONS- As a result of other services performed by Representative, introductions to strategic partners or investors, who are not current customers of POLYBRITE, are expected to be made. To the extent these introductions result in purchases of POLYBRITE products or services. Sales Revenue received from these introductions shall be subject to this agreement and credited to Representative.
iii.
SALES: - To solicit sales of POLYBRITE Products to companies, business entities, individuals as well as national, state or local governments, municipalities, and/or agencies or sub-divisions thereof including state-owned utilities and/or subsidiaries or affiliates thereof; and
iv.
OTHER OPPORTUNITIES - To identify and refer to POLYBRITE other business opportunities from time to time by REPRESENTATIVE as agreed to by the parties and provided herein.
B.
POLYBRITE agrees to compensate REPRESENTATIVE for selling POLYBRITE Products to companies, business entities, individuals as well as national, state or local governments, municipalities, and/or agencies or sub-divisions thereof including state-owned utilities and/or subsidiaries or affiliates thereof, subject to the terms and conditions of this Agreement.
Agreement
For good and valuable consideration, receipt of which is hereby acknowledged, POLYBRITE and
REPRESENTATIVE hereby agree as follows:
1. DEFINITIONS
Capitalized terms used herein shall have the meanings ascribed thereto below:
a) "POLYBRITE Products" mean all products, or technologies manufactured, distributed, sold, or licensed by POLYBRITE;
b) "Sales Revenue" means aggregate revenue received as a result of any agreement entered into between POLYBRITE and any customer developed as a result of REFFERALS, SALES AND OTHER OPPORTUNITIES, as those terms are used in Recital A above, or any REPRESENTATIVE client, as that term is used in subparagraph 1 (c) below, less returns, discounts, freight, insurance and other allowances, charges and credits.
c) “REPRESENTATIVE Client" means any companies, business entities, individuals as well as national, state or local governments, municipalities, and/or agencies or sub-divisions thereof including state-owned utilities and/or subsidiaries or affiliates thereof referred by REPRESENTATIVE to POLYBRITE; and
d) Terms used in the singular shall have the same meaning when used in the plural and vice versa.
2. SERVICES
REPRESENTATIVE agrees to submit in writing to POLYBRITE the names of REPRESENTATIVE Clients it intends to refer to POLYBRITE along with pertinent information as to the type of transaction, the type and volume of products of interest to the REPRESENTATIVE Client, the nature and extent of REPRESENTATIVE'S contact and/or relationship with said REPRESENTATIVE Client, the level of anticipated involvement of REPRESENTATIVE in meetings, discussions, presentations, etc. conducted in connection with the sales effort, and other information reasonably requested by POLYBRITE. Within fourteen (14) business days after receipt of such information, POLYBRITE shall notify REPRESENTATIVE in writing of POLYBRITE'S decision, including the reasoning therefore, to grant or decline REPRESENTATIVE'S exclusivity with respect to such REPRESENTATIVE Clients. When and if accepted in writing by POLYBRITE, in POLYBRITE'S reasonable discretion, pursuant to a signed addendum hereto (each an "Addendum") approving the REPRESENTATIVE Client, POLYBRITE shall grant REPRESENTATIVE an exclusive period, not to exceed six months, to continue communications with such REPRESENTATIVE Client and receive a purchase order for POLYBRITE Products from such REPRESENTATIVE Client in an agreed minimum amount. All REPRESENTATIVE Clients listed in Exhibit 1 shall be exclusive to REPRESENTATIVE for a period of six months. If REPRESENTATIVE so consummates a sale to such REPRESENTATIVE Client, either under an Addendum or Exhibit 1, within said period, POLYBRITE will grant to REPRESENTATIVE an exclusive right to continue sales to such REPRESENTATIVE Client with respect to POLYBRITE Products for the balance of this Agreement and any extension thereof, or for such other period as set forth in the Addendum. An Addendum may be executed prior to or subsequent to exploratory meetings with such REPRESENTATIVE Clients. POLYBRITE shall maintain the confidentiality of the information provided by REPRESENTATIVE regarding the REPRESENTATIVE Clients in a manner consistent with the provisions of Section 9 hereof.
3. COMPENSATION
POLYBRITE agrees to pay REPRESENTATIVE a percentage of the Sales Revenue generated by REPRESENTATIVE. The percentage of the Sales Revenue paid to REPRESENTATIVE will be graduated depending upon the total accumulated Sales Revenue generated per calendar year at the time of each purchase order submitted by REPRESENTATIVE'S Clients.
Percentage of monthly Sales Paid to REPRESENTATIVE: | Accumulated Sales Revenue generated at time of purchase order: |
7% | $0.00 to $5,000,000.00 |
5% | $5,000,000.01 and above |
The percentage of monthly Sales Revenue paid to REPRESENTATIVE shall be determined on the date POLYBRITE receives each purchase order from each REPRESENTATIVE Client. Compensation shall be paid to REPRESENTATIVE on the thirtieth (30th) day of each month with respect to the Sales Revenue received by POLYBRITE from approved REPRESENTATIVE Clients during the immediately preceding month.
4. AGREEMENT TERM AND TERMINATION
(a) The initial term (the "Initial Term") of this Agreement shall commence on the Effective Date, and shall be in effect for a period of eight (8) years, subject to the provisions of Section 12 hereof. The Agreement shall terminate automatically after the Initial Term. Upon written agreement signed by both parties hereto, the Initial Term may be renewed for successive twelve (12) month renewal periods thereafter.
(b) Either party may terminate this Agreement at any time, due to the material breach of the other party, if said breach is not cured within thirty (30) days of written notice thereof.
(c) Either party may terminate this Agreement immediately upon written notice to the other party if the other party shall: (i) file a voluntary petition in bankruptcy or be the subject of an involuntary petition in bankruptcy which is not dismissed within thirty (30) days of the date of filing; (ii) be voluntarily or involuntarily dissolved; or (iii) have a receiver, trustee or other Court officer appointed for its property in connection with any such bankruptcy proceeding, liquidation or insolvency proceeding.
(d) POLYBRITE may terminate this Agreement immediately upon written notice in the event there is a substantial change in the management or geographical location of REPRESENTATIVE which POLYBRITE, in POLYBRITE'S sole discretion, deems adverse to its interest.
(e) POLYBRITE may terminate this Agreement at any time, with immediate effect, upon written notice, in the event of fraud, misconduct or malfeasance on the part of Representative, which is detrimental to the interest of POLYBRITE.
(f) Notwithstanding anything contained herein to the contrary, POLYBRITE and REPRESENTATIVE shall each have the right to terminate, in good faith, this Agreement in its entirety at any time, in their sole discretion, by giving thirty (30) days written notice to the other party.
5. SALES REVENUE
Sales revenue received
as a result
of transactions described in Section 1(b) shall be paid to REPRESENTATIVE as received by POLYBRITE regardless of any termination or expiration of term under Section 4 above.
6. PRICING AND PRICE CHANGES
POLYBRITE reserves the right and sole discretion, to change prices at any time and from time to time, and REPRESENTATIVE shall take no orders for POLYBRITE Products, and no orders taken by REPRESENTATIVE on behalf of POLYBRITE shall be binding upon POLYBRITE unless and until confirmed in writing by POLYBRITE.
7. PURCHASE ORDERS
(a) No purchase orders of REPRESENTATIVE or any REPRESENTATIVE Client shall be binding upon POLYBRITE until accepted by an authorized agent of POLYBRITE in writing at its general office in Naperville, Illinois. Except as otherwise agreed in writing by POLYBRITE, an order may not be canceled by REPRESENTATIVE or REPRESENTATIVE Client after it has been accepted All sales shall be subject to the provisions of this Agreement and shall not be subject to the terms and conditions contained in any purchase
order of REPRESENTATIVE or REPRESENTATIVE Client, except insofar as any such purchase order establishes the quantity of products to be sold. Upon acceptance by POLYBRITE of any purchase order, and payment terms acceptable to POLYBRITE, POLYBRITE shall issue a confirmation of acceptance and an estimated delivery date for such purchase order, subject to such reasonable allocation as, in the sole judgment of POLYBRITE, may be necessary or equitable in the event of any shortages of the products ordered.
(b) REPRESENTATIVE may present to POLYBRITE proforma purchase orders for pre-approval of volume, pricing, payment terms and delivery date prior to presentment of a purchase order pursuant to Section
6(a) above. POLYBRITE shall confirm its determination to accept such proforma purchase order, in its
reasonable discretion, within fourteen (14) business days of receipt by POLYBRITE, and POLYBRITE shall thereby be bound to accept the final purchase order reflecting identical terms as the respective proforma purchase order. Acceptance by POLYBRITE of the respective final purchase order shall be subject to the provisions of this Agreement and terms of POLYBRITE'S customary sales confirmation.
8. INDEMNIFICATION
POLYBRITE agrees to defend, indemnify and hold REPRESENTATIVE, its officers, directors, agents and employees, harmless against all costs, expenses and losses (including reasonable attorney's fees) incurred through claims of third parties against REPRESENTATIVE based on a breach by POLYBRITE of any representation and warranty made in this Agreement and for any claims made against REPRESENTATIVE related to warranty or product liability for POLYBRITE Products, provided that REPRESENTATIVE makes no written or substantiated oral promises, representations or warranties to any customer or prospective customer inconsistent with POLYBRITE'S product specifications and standard product warranties.
REPRESENTATIVE agrees to defend, indemnify and hold POLYBRITE, its officers, directors, agents and employees, harmless against all costs, expenses and losses (including reasonable attorney's fees) resulting from or arising in connection with, a breach by REPRESENTATIVE of any provision of this Agreement.
9. CONFIDENTIAL AND PROPRIETARY INFORMATION AND PROPERTY
REPRESENTATIVE acknowledges that during the term of this Agreement, REPRESENTATIVE shall obtain Confidential Information and/or trade secrets and, accordingly, REPRESENTATIVE agrees that during the term of this Agreement and for a period of three (3) years thereafter, REPRESENTATIVE shall not disclose any such Confidential Information to third parties without the prior written consent of POLYBRITE. "Confidential Information" shall include all tangible or intangible trade secrets, in any form, that POLYBRITE considers to be proprietary or confidential, including, without limitation, any and all technical and non-technical information including patent, copyright, trade secret, and proprietary information, techniques, sketches, drawings, models, prototypes, inventions, know-how, process, apparatus, equipment, algorithms, software programs, software source documents, and formula related to the current, future and proposed products and services of such party, and includes, without limitation, POLYBRITE'S information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer and advertiser information and lists, business forecasts, sales and merchandising and marketing plans and information, or other materials which may be referenced or marked by POLYBRITE as proprietary and/or confidential of POLYBRITE, that is not readily available to the general public or that may be a benefit to a competitor or an entity seeking to become a competitor of POLYBRITE. "Confidential Information" also includes proprietary or confidential information of any third party that may disclose Confidential Information in the course of such party's business.
Information shall not be considered Confidential Information if it is:
a)
Already known to the public in the form received from the disclosing;
b)
Subsequently made known to the public without violation of this Agreement or any other applicable protective agreement by the receiving party;
c)
Received from or disclosed by a 3rd party without breach of this Agreement or any other applicable protective agreement by the receiving party; and/or
d)
Already known by the receiving party without violation of this Agreement or any other applicable protective agreement by the receiving party.
Enforcement of this provision shall include the right to temporary and permanent injunctive relief as well as monetary damages.
10.
COMPETITIVE PRODUCTS
POLYBRITE agrees that during the term of this Agreement, REPRESENTATIVE may, and enter into agreements with other manufacturers to, market, sell, distribute, manufacture, develop and/or help develop products, which are either directly or indirectly competitive with the POLYBRITE Products.
11.
INSURANCE
Upon written request by REPRESENTATIVE, POLYBRITE shall provide REPRESENTATIVE a copy of POLYBRITE'S product liability insurance binder or certificate.
12.
SURVIVING PROVISIONS
All nondisclosure, non-competition and indemnification obligations under this Agreement shall survive the termination of this Agreement. To the extent set forth in the relevant Addendum, REPRESENTATIVE'S compensation with respect to any REPRESENTATIVE Client shall survive termination of this Agreement.
13.
INDEPENDENT CONTRACTOR
REPRESENTATNE shall not represent itself as POLYBRITE, make any representations or enter into any agreements on behalf of POLYBRITE, nor register the name or trade names of POLYBRITE for REPRESENTATIVE'S own use. REPRESENTATIVE is prohibited from entering into any agreements with third parties based in whole or part on this Agreement. The relationship of REPRESENTATNE to POLYBRITE shall be solely that of independent contractor selling POLYBRITE Products under POLYBRITE'S brand names. REPRESENTATIVE shall not conduct business as a lighting manufacturer and shall not be an employee of POLYBRITE, no employee withholdings, taxes, or other amounts shall be withheld from amounts paid or owing to REPRESENTATNE pursuant to this Agreement. REPRESENTATIVE shall not be entitled to receive any employee benefits from POLYBRITE, including, without limitation, vacation, sick leave, insurance, pension or profit sharing. No agency relationship shall exist between POLYBRITE and REPRESENTATNE, neither POLYBRITE nor REPRESENTATNE shall have any authority to act for or bind the other and nothing in this Agreement or the relationship between POLYBRITE and REPRESENTATIVE shall be construed to create any joint venture or partnership relationship. Any reimbursement for travel and other related expenses shall be by the prior written agreement of the parties.
14.
NO FURTHER COMMITMENTS
This Agreement applies only to transactions between POLYBRITE and REPRESENTATNE Clients. REPRESENTATIVE Clients referred to POLYBRITE shall be specified in writing and shall be subject to Addenda as set forth in this Agreement. Nothing in this Agreement shall be construed as creating any obligation by either party to enter into a business relationship with the other party, or an obligation on the part of POLYBRITE to refrain from entering into any business relationship with any third party or conducting business using its own employees.
15.
DISPUTE RESOLUTION
Except as provided herein, no civil action with respect to any dispute, claim or controversy arising out of or relating to this Agreement may be commenced until the matter has been submitted to JAMS for mediation. Either party may commence mediation by providing to JAMS and the other party a written request for mediation, setting forth the subject of the dispute and the relief requested. The parties will cooperate with JAMS and with one another in selecting a mediator from JAMS panel of neutrals, and in scheduling the mediation proceedings. The parties covenant that they will participate in the mediation in good faith, and that they will share equally in its costs. All offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by any of the parties, their agents, employees, experts and attorneys, and by the mediator and any JAMS employees, are confidential, privileged and inadmissible for any purpose, including impeachment, in any litigation or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation. Either party may seek equitable relief prior to the mediation to preserve the status quo pending the completion of that process. Except for such an action to obtain equitable relief, neither party may commence a civil action with respect to the matters submitted to mediation until after the completion of the initial mediation session, or 45 days after the date of filing the written request for mediation, whichever occurs first. Mediation may continue after the commencement of a civil action, if the parties so desire. The provisions of this Clause may be enforced by any Court of competent jurisdiction, and the party seeking enforcement shall be entitled to an award of all costs, fees and expenses, including attorneys' fees, to be paid by the party against whom enforcement is ordered.
16.
NOTICES
Any notices required or permitted hereunder shall be sent by prepaid United States Certified Mail, return receipt requested, or overnight delivery service (return receipt requested), to the parties at their respective addresses as set forth herein, or shall be sent by facsimile to the parties at the facsimile numbers set forth below. Subject to the immediately following sentence, any such notices shall be effective upon receipt. Any notices that are transmitted by facsimile shall subsequently be transmitted by first class United States mail to the receiving party at the address set forth below. Each party shall notify the other party of any change in its address in accordance with the provisions of this paragraph.
1.
If to REPRESENTATIVE:
LED Lighting Company
0000 Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
2. If to POLYBRITE:
Polybrite International, Inc.
0000 Xxxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
ATTN: Xxxx Xxxxxxx, President & CEO, Phone: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
PolyBrite International, Inc.
0000 Xxxx Xxxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
ATTN: Legal Department
17.
ASSIGNABILITY/CHANGE IN OWNERSHIP/NO THIRD PARTY BENEFICIARY
This Agreement is made for the sole and exclusive benefit of POLYBRITE and REPRESENTATIVE and is not intended to benefit any third party. No such third party may claim right or benefit or seek to enforce any term or provision of this Agreement. REPRESENTATIVE shall not assign, in whole or part, this Agreement or any rights or obligations hereunder. Any representations or agreements made by REPRESENTATIVE in violation of these prohibitions shall be null and void. This Agreement is personal to REPRESENTATIVE and may not be sold, assigned, delegated or transferred (in whole or in part) by REPRESENTATIVE without the written consent of POLYBRITE. REPRESENTATIVE shall promptly notify POLYBRITE of any substantial change in the nature or ownership of REPRESENTATIVE'S business. In the event of a material change in the ownership or control of REPRESENTATIVE, or in the event of the sale by REPRESENTATIVE of that portion of the business operation which includes all or most of the Products, and POLYBRITE has not consented to that change or sale, then this Agreement may be terminated at any time thereafter by POLYBRITE upon written notice given at least thirty (30) days in advance of the effective date of termination. POLYBRITE may assign this Agreement to any subsidiary or holding corporation, or to any entity purchasing control of POLYBRITE. In the event of a merger, consolidation, or sale of all or substantially all of the assets of POLYBRITE, the successor entity will assume the rights, duties and liabilities of POLYBRITE; and REPRESENTATIVE will remain bound by the terms of this Agreement.
18.
SEVERABILITY
All provisions of this Agreement are intended to be interpreted and construed in a manner to make such provisions valid and enforceable. In the event that any one or more of the provisions contained in this Agreement shall be held to be invalid, illegal or unenforceable, in any respect under any law, such provision(s) shall be deemed severable, and the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected, prejudiced or impaired thereby. If there is a conflict between any part of this Agreement and any present or future law, this Agreement shall be curtailed only to the extent necessary to bring it within the requirements of that law.
19.
ENTIRE AGREEMENT/AMENDMENTS
This Agreement and attached schedules contain the full and complete understanding of the parties and constitutes the entire agreement between the parties. The captions of the sections of this Agreement are inserted only for convenience and shall not be considered in construing this Agreement. This Agreement cancels and supersedes all prior and existing agreements, representations, promises, warranties (express or implied), or any other arrangements by POLYBRITE and REPRESENTATIVE, whether oral or written, relating to the subject matter hereof; and such prior agreements or arrangements are hereby deemed terminated by mutual consent of the parties; provided, however, POLYBRITE AND REPRESENTATIVE agree that the Non-Exclusive Distributor Agreement dated May 30, 2013 between the parties shall remain in full force and effect and shall not be terminated by this Agreement. No amendment, modification or waiver of any part of this Agreement shall be deemed effective unless and until executed in writing by POLYBRITE and REPRESENTATIVE. If there is a foreign language translation of this Agreement, the English version shall be the governing language.
20. WAIVER OF BREACH
The waiver or failure of either party to enforce the terms of this Agreement in one instance shall not constitute a waiver of said party's rights under this Agreement with respect to other violations.
21. CHOICE OF LAW AND FORUM SELECTION
This Agreement shall be governed by and construed in accordance with the internal laws of the state of Illinois, without regard to conflicts of law rules. Enforcement of injunctive enforcement allowed herein, and any disputes arising under or in connection with this Agreement shall be litigated, if at all, solely in a state court of general jurisdiction located in Xxxx County, Illinois, or the federal court located in Xxxx County, Illinois, and jurisdiction is hereby conferred upon such courts. In connection therewith, each party hereby agrees to submit to the jurisdiction of such courts and to waive any possible defense of forum non conveniens and/or lack of personal jurisdiction before such court.
The parties agree that money damages may not be an adequate remedy for any breach of this Agreement by REPRESENTATIVE and that, in addition to any other relief afforded by law, POLYBRITE shall be entitled to specific performance and injunctive or other equitable relief as a remedy for any such breach. Injunctive relief is specifically agreed to by the parties as appropriate in any breach of Sections 8 and 9 of this Agreement. The parties further agree that all remedies made available by any provision of this Agreement shall be proper modes of relief and are not to be considered mutually exclusive remedies of one another.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY UNDER ANY LEGAL THEORY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY DAMAGES FOR LOSS OF PROFITS, REVENUE OR BUSINESS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
22. ANTI-BRIBERY AND FEDERAL CORRUPT PRACTICES ACT
22.1 REPRESENTATIVE shall fully comply with the Foreign Corrupt Practices Act of 1977 ("FCPA"), 15 U.S.C. §§ 78dd 1, et seq., and all other applicable foreign and domestic anti-bribery laws. REPRESENTATIVE verifies that it has not, and will not, directly or indirectly, pay, offer, or promise to pay (or authorize to pay or offer) any money or anything of value to a "foreign official" in connection with obtaining or retaining business or work for or with POLYBRITE. A "foreign official" means any officer, employee, or agent of a foreign government, a public international organization, or any department or agency thereof, or any person acting in an official capacity. REPRESENTATIVE acknowledges and understands that it shall comply fully with the anti-bribery provisions of the FCPA and shall provide to POLYBRITE a certification regarding REPRESENTATIVE's compliance with the FCPA and all other applicable foreign and domestic anti-bribery laws.
22.2 REPRESENTATIVE also agrees that POLYBRITE, in its sole discretion, shall be able to review any documents, including financial records, regarding any subject matter of this agreement in the event that POLYBRITE decides to review REPRESENTATIVE's compliance with the FCPA, or other applicable anti bribery laws.
22.3 Should REPRESENTATIVE enter into any subcontract relating to the subject matter of this agreement, REPRESENTATIVE shall immediately: (a) notify POLYBRITE of the subcontractor agreement, (b) provide POLYBRITE with any agreement(s) with the subcontractor, and (c) include in any of the subcontractor agreement(s) that the subcontractor agrees to comply with the above requirements concerning the FCPA and anti-bribery laws, and POLYBRITE's right to conduct financial reviews.
23. COUNTERPARTS
This Agreement may be executed in counterparts, and may be delivered by electronic transmission by facsimile or in PDF, each of which will be deemed an original and all of which together shall constitute one and the same Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written.
Polybrite International, Inc.
LED Lighting Company
By: /s/ Xxxx Xxxxxxx
By: /s/ Xxxxx Xxxxxxx
Xxxx Xxxxxxx
Xxxxx Xxxxxxx
Its: President and CEO
Its: President and CEO
