AGENCY AND SALES AGREEMENT
AGENCY AND SALES AGREEMENT dated as of October 1, 1996 by and between Sun
Hill Industries, Inc., a Connecticut corporation having its principal place of
business located at 00 Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx (hereinafter referred
to as "Sun Hill") and , a Corporation, having its
principal place of business located at (hereinafter referred to
as " ").
W I T N E S S E T H:
WHEREAS, Sun Hill sells proprietary and other seasonal products for
Easter, Halloween, Christmas and summer (collectively, "Seasonal Products") to
the major chain stores in the United States and Canada, and
WHEREAS, maintains a well-established trading company office and
showroom in and can serve as a source of supply in Asia for additional
Seasonal Products for Sun Hill's product lines.
WHEREAS, and Sun Hill desire to enter into a mutually beneficial
arrangement whereby they each can promote and sell the other's Seasonal Products
on the terms and conditions herein contained.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and conditions herein contained, the parties hereby agree as follows:
1. Sale of Seasonal Products; Term; Exclusivity and Exceptions. (a)
shall sell to Sun Hill and Sun Hill shall purchase from such Seasonal
Products as Sun Hill shall request from time to time of the type, kind and
variety as listed on Exhibit A hereto (collectively hereinafter referred to as
the "Agreement Products") for Sun Hill's sale in
(hereinafter, the
"Territory") for the period commencing on the date hereof and ending on
(hereinafter, the "Term"); provided, however, that the Term shall
automatically be renewed for successive month periods (each, a
"Renewal Period") unless Sun Hill, within thirty (30) days of the expiration of
the Term or any Renewal Period, as the case may be, provides with a
written notice of its election not to renew this Agreement.
(b) agrees that it will not, directly or indirectly through
third parties, make any other sale of the Agreement Products (or any other
products which can be logically categorized as Seasonal Products) to or for the
Territory during the Term or any Renewal Period. shall sell the Agreement
Products to the Territory exclusively through Sun Hill. Notwithstanding the
foregoing, shall be permitted to service customers in the Territory both
directly and indirectly through third parties with respect to its distribution
and sale of products that do not qualify as Seasonal Products.
(c) shall, both directly and indirectly through third
parties, also be permitted to sell Seasonal Products and other products outside
of the Territory, provided,
however, that if any of such sales comprise Seasonal Products that are a part of
Sun Hill's Seasonal Product lines, or are otherwise proprietary to Sun Hill,
shall pay a sales royalty to Sun Hill equal to % of the Net Sales of any
such Seasonal Product. For purposes of this Section, "Net Sales" shall mean
gross sales of such Seasonal Product, less returns. Notwithstanding the
foregoing, Sun Hill shall not be obligated to promote sales of its Seasonal
Products in Asia or otherwise outside the Territory exclusively through .
2. Price, Delivery, Title and Risk. (a) Regarding Sun Hill's purchase of
Seasonal Products from , Sun Hill shall pay the prices for the
Agreement Products as shall be determined from time to time by the parties
utilizing a letter of credit, or other acceptable means of payment. Each
shipment by shall include an invoice properly detailed, itemized and
prepared based on the prices for the Agreement Products then in effect. Risk of
loss and title to the Agreement Products shall pass to Sun Hill upon delivery
F.O.B. . The delivery of the Agreement Products herein specified may be
delayed or canceled by without liability to Sun Hill, by reason of Acts
of God, strikes or other labor disturbances, fires, accidents, delays of
carriers, shortage of supplies or labor, trade embargo, or from other cause
beyond control.
(b) Regarding purchase of Seasonal Products directly from
Sun Hill, shall pay Sun Hill the prices for any of the Sun Hill Seasonal
Products as may be agreed to by the parties. Further, delivery, title and risk
of loss shall also be upon such terms and conditions as may be agreed to by the
parties.
3. Packaging. All products purchased by one party from the other shall be
specifically packaged in accordance with such purchasing party's specifications,
or as otherwise may be agreed to by the parties.
4. Mutual Showroom Facility Use. At all times that this Agreement is in
force and effect, shall, and without receiving compensation therefor,
permit Sun Hill to utilize up to 1,000 square feet of its showroom facility
located at ________________ for the purposes of promoting Sun Hill's
own Seasonal Products and the Agreement Products. Conversely, at all times that
this Agreement is in force and effect, Sun Hill shall, and without receiving
compensation therefor, permit to utilize up to ________ square feet of
its showroom facility located in The Toy Building at 000 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx for the purposes of promoting Sun Hill's Seasonal Products and the
Agreement Products. Upon the expiration or termination of this Agreement, the
parties shall each promptly vacate the other's showroom facilities.
5. Right of First Refusal Regarding Source of Supply. In the
event that Sun Hill would like to source the manufacture and supply of any of
its proprietary or other Seasonal Products from Asia, then shall be
provided the right of first refusal to make an arrangement for the manufacture
and supply to Sun Hill of such Seasonal Products. Any such arrangement which is
proposed by to Sun Hill shall be competitive in price, quality and other
characteristics as are then available in other countries in Asia.
2
7. Mutual Indemnity. Each party hereby agrees to indemnify and hold the
other party together with such other party's agents, affiliates and employees
and their respective successors and assigns harmless from and against any and
all expenses (including, without, limitation, reasonable attorneys' fees and
disbursements), losses, claims, damages or liabilities which are incurred by a
party and caused by, or in any way resulting from or relating to, (i) the other
party's failure to carry out any or all of its obligations under this Agreement;
(ii) the other party's breach of any of the representations, warranties,
covenants or agreements set forth in this Agreement or (iii) the other party's
negligent manufacture, packaging or shipment of any Agreement Product or
Seasonal Product sold hereunder.
8. Representations and Warranties of the Parties. (a) hereby
represents and warrants to Sun Hill as follows:
(i) that the sale and/or use of the Agreement Products, to the best
of knowledge, does not infringe any patent, trademark, copyright, trade
secret or other intellectual property right of any third party;
(ii) that it will comply with all applicable laws relating to the
manufacture, sale and distribution of the Agreement Products;
(iii) that the Agreement Products shall be of good and merchantable
quality;
(iv) that it will refer all sales inquiries regarding the sale of
Seasonal Products in the Territory to Sun Hill for processing and fulfillment;
(v) that it will deliver all of the Agreement Products in a timely
fashion and in the event delivery is not made by the date required by Sun Hill
as a final date, then Sun Hill shall have the right to find a replacement source
of supply (within or without Asia) for the Agreement Products that were the
subject of the late delivery;
(vi) that it has full power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby. This Agreement
constitutes the valid, legal and binding obligations of in accordance
with their respective terms. The execution of this Agreement and the
consummation of the transactions contemplated herein will not result in any
breach of any terms, conditions or provisions of or constitute a default under
or conflict with any agreement or other instrument to which is a party or
by which may be bound.
(b) Sun Hill hereby represents and warrants to as follows:
3
(i) that the sale and/or use of any of the Seasonal Products in Sun
Hill's product lines, to the best of Sun Hill's knowledge, do not infringe any
patent, trademark, copyright, trade secret or other intellectual property right
of any third party;
(ii) that it will comply with all applicable laws relating to the
manufacture, sale and distribution of Seasonal Products in the Sun Hill product
lines;
(iii) that Sun Hill's Seasonal Products shall be of good and
merchantable quality;
(iv) that it has full power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby. This Agreement
constitutes the valid, legal and binding obligations of Sun Hill in accordance
with their respective terms. The execution of this Agreement and the
consummation of the transactions contemplated herein will not result in any
breach of any terms, conditions or provisions of or constitute a default under
or conflict with any agreement or other instrument to which Sun Hill is a party
or by which Sun Hill may be bound.
9. Termination. (a) This Agreement may, at a party's option and upon
written notice to the other, be immediately terminated at any time prior to the
expiration of the Term or any Renewal Period, as the case may be, as follows:
(i) If a party shall be in breach of any of its obligations under
this Agreement and, after thirty (30) days from receiving notice thereof from
the other, such party fails to cure such breach;
(ii) If a party shall dissolve, wind-up its affairs or seek
bankruptcy protection under applicable laws;
(iii) If, in the case of
or a majority of them, at any time fail to control the management, business and
operations of , then this Agreement may be terminated by Sun Hill;
(iv) If, in the case of Sun Hill, Xx. Xxxxxx Zinbarg ceases to be
the President and Chief Executive Officer at any time, then this Agreement may
be terminated by ;
(v) If a party's business or assets are seized, sequestered,
confiscated or expropriated by judicial process or otherwise; and
(vi) If a court, governmental or other administrative order is
issued to suspend or terminate a party's business with respect to any of the
Agreement Products.
(b) Termination by either party shall in no way be deemed to be or
construed as a restriction, limitation or waiver of such party's rights to
pursue any additional remedy at law or in equity.
4
(c) The rights and obligations of the parties set forth in Sections 7,
9(b), 9(c) 9(d) 11, 12, 17 and 18 shall survive the termination or expiration of
this Agreement.
(d) Upon termination of this Agreement whether by expiration or pursuant
to subsection (a) of this Section, then , with respect to the Agreement
Products or other Seasonal Products (X) shall cease the sale of any and all Sun
Hill Seasonal Products or any other products which are proprietary to Sun Hill
throughout the world and (Y) not, for a period of five (5) years, sell any
products (including, but not limited to, Seasonal Products) in the Territory to
any customer that purchased Agreement Products or Seasonal Products from Sun
Hill during the Term or any Renewal Period. If wishes to make any such
sales, then it hereby agrees to compensate Sun Hill by way of a percent
( %) commission on "Net Sales" to any such customers in the Territory. For
purposes of this Section, "Net Sales" shall mean gross sales of such product,
less returns.
10. Transfer, Assignment and Delegation. This Agreement including, without
limitation, the representations, warranties, covenants and agreements contained
herein, shall inure to the benefit of and be enforceable by the respective
parties hereto and their respective successors, assigns and transferees,
provided, however, that no party's rights or obligations may be assigned or
delegated, respectively, without the prior written consent of the other party,
which consent may be withheld in such party's sole discretion except that in the
case of either a sale of all or substantially all of the assets of Sun Hill or
the merger of Sun Hill with and into a successor corporation, then no such prior
written consent from shall be required and such successor in interest by
virtue of such sale or merger, as the case may be, shall automatically be
delegated Sun Hill's responsibilities hereunder and have all of the rights and
benefits afforded to Sun Hill hereunder.
11. Confidentiality. Sun Hill and agree not to use and to maintain
in strict confidence any proprietary or financial information, including, but
not limited to, customer lists, product costing and methods of manufacture,
provided by either party to this Agreement to the other, or other information
subsequently developed jointly by Sun Hill and , for any other purpose
except as intended by this Agreement. Sun Hill and agree that they will
not disclose any such confidential or proprietary information or use any such
information during the Term, any Renewal Period and thereafter.
12. Equitable Relief. Each of Sun Hill and hereby acknowledge that
each may have no adequate remedy at law in the event of any actual or threatened
violation(s) of certain of the provisions of this Agreement including, but not
limited to, Section 11. Therefore, each party shall be entitled to a decree or
order by any court of competent jurisdiction enjoining such threatened or actual
violation(s) of this Agreement by the other party, such relief to be available
without the necessity of posting bond, cash or other value. Such decree or
order, to the extent appropriate, shall specifically enforce full performance of
this Agreement by the party against whom enforcement is being sought.
Enforcement of any remedy hereunder shall not reduce or adversely affect any
other remedy which may be available to a party in law or equity and nothing
herein shall prevent a party from otherwise seeking injunctive or other relief
hereunder.
5
13. Notices. All notices between parties shall be in writing and be
delivered by telecopier, receipt acknowledged, or by overnight courier service.
All notices delivered by telecopier or overnight courier service shall be deemed
to be delivered upon receipt.
All notices to shall be given to:
All notices to Sun Hill shall be given to:
Xx. Xxxxxx Zinbarg
President
Sun Hill Industries, Inc.
00 Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx X.X.X. 00000
Tel. (000) 000-0000
Fax (000) 000-0000
With a copy to:
Xxxx X. Xxxxx, Esq.
Aieta & Xxxxx
00 Xxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, Xxx Xxxx X.X.X. 00000-0000
Tel. (000) 000-0000
Fax (000) 000-0000
14. Headings and Captions. The headings and captions contained herein are
for the sole purpose of convenience of reference, and shall not in any way limit
or affect the meaning or interpretation of any of the terms or provisions of
this Agreement.
15. Entire Agreement. This Agreement and the documents executed in
connection herewith shall serve as a final integration and expression of all
agreements between and Sun Hill with respect to the subject matter
hereof, and any previous agreement, representation or warranty, whether oral,
written, shall have no force and effect.
16. Choice of Law. This Agreement shall be governed by and interpreted in
accordance with the laws of the United States of America as well as the internal
laws of the State of Connecticut without reference to conflict of laws
principles.
17. Consent to Jurisdiction. hereby expressly consents to the
jurisdiction of the District Court of the District of Connecticut, the District
Court of the Southern District of New York as well as any State Court in the
State of Connecticut to resolve any dispute arising hereunder. Further, and in
connection with such jurisdictional consent, hereby expressly waives the
defense of forum non-conveniens.
6
18. Survival of Representations. All representations, warranties,
covenants, disclaimers, acknowledgments and agreements made by the parties
hereto shall be considered to have been relied upon by the parties hereto and
shall survive the execution, performance and delivery of this Agreement and all
other documents contemplated herein.
19. Further Assurances. Each of the parties hereto agrees to execute and
deliver or cause to be executed and delivered all such instruments and to take
all such action as the other party may reasonably request in order to effectuate
the intent and purposes of and to carry out the terms of this Agreement.
20. Amendments. No amendments of any provision of this Agreement shall be
effective unless it is in writing and signed by both parties, and no wavier of
any provision of this Agreement nor consent to any departure by a party
therefrom, shall be effective unless it is in writing and signed by the other
party, and then such waiver or consent shall be effective only in the specific
instance and for the specific purposes for which given.
21. Invalidity. If any provision of this Agreement is held to be illegal,
invalid, or unenforceable under any present or future law, and if the rights or
obligations of Sun Hill or under this Agreement will not be materially
and adversely affected thereby, (a) such provision will be fully severable, (b)
this Agreement will be construed and enforced as if such illegal, invalid, or
unenforceable provision had never comprised a part hereof, (c) the remaining
provisions of this Agreement will remain in full force and effect and will not
be affected by the illegal, invalid, or unenforceable provision or by its
severance herefrom and, (d) in lieu of such illegal, invalid, or unenforceable
provision, there will be added automatically as a part of this Agreement a
legal, valid, and enforceable provision as similar in terms to such illegal,
invalid, or unenforceable provision as may be possible.
22. Headings. The headings of the sections of this Agreement are for
informational purposes only, do not constitute a part of this Agreement and
shall not effect the interpretation hereof.
23. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed to be an original, but all of which together shall be
deemed to be one and the same instrument.
7
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the date first above written.
SUN HILL INDUSTRIES, INC.
By: /s/ Xxxxxx Xxxxxxx
-----------------------------
Xxxxxx Xxxxxxx, President
By: /s/
----------------------------
, A
Duly Authorized Signatory
8
EXHIBIT A
AGREEMENT PRODUCTS
Product Description Sales Price
------- ----------- -----------
