1
EXHIBIT 10.117
WILSHIRE TECHNOLOGIES, INC.
SALES REPRESENTATIVE AGREEMENT
THIS SALES REPRESENTATIVE AGREEMENT ("this Agreement") is made
effective on the 1st day of June, 1998 ("Effective Date"), by and between
WILSHIRE TECHNOLOGIES, INC. ("WTI"), a California Corporation having its
principal place of business at 0000 Xxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxx 00000,
and EXXUSTECH, INC. ("Representative"), a California corporation having its
principal office at 00000 Xxx Xxxxx Xxxxxxxxx, Xxxxx X, Xxx Xxxxx, Xxxxxxxxxx
00000.
1. APPOINTMENT AND ACCEPTANCE
WTI hereby appoints Representative, subject to the terms and conditions
set forth in this Agreement, as its exclusive master sales representative for
the promotion and solicitation of sales of WTI Products to Customers as defined
in this Agreement. Representative hereby accepts such appointment and agrees to
exert its best efforts to promote and solicit such Products. It is understood
and acknowledged between the parties that Representative shall not be an
employee of WTI and that the relationship between WTI and Representative shall
be strictly that of principal and independent contractor.
2. PRODUCTS
The Products covered by this Agreement shall be WTI Products listed on
Exhibit A attached hereto and made a part of this Agreement ("the Products").
WTI retains the right to add or delete products from Exhibit A, and to modify,
alter, or improve the Products in its sole discretion, provided that WTI shall
provide reasonable advance notice of such changes to Representative.
3. TERRITORY
Representative shall promote and solicit orders for the purchase of the
Products from Customers in the United States of America ("xxx Xxxxxxxxx").
4. CUSTOMERS
Representative shall promote and solicit orders for the purchase of the
Products from (i) capital equipment users ("End Users") within the Territory
operating in the industry segments listed on Exhibit B attached hereto, (ii)
original equipment manufacturers ("OEMs") which manufacture and sell capital
equipment to such End Users, and (iii) distributors appointed by WTI to resell
the Products to such End Users and OEMs ("Enrolled Distributors") pursuant to
the discounts and commissions set forth on Exhibits C and D attached hereto (End
Users, OEMs and Enrolled Distributors together referred to as "Customers").
1
2
5. WTI'S RESPONSIBILITIES
WTI shall:
5.1 timely pay commissions due Representative, including the submission
of commission reports, invoices and other documentation detailing the Customer
sales transactions covered by such commission payments;
5.2 manufacture quality and competitively priced Products;
5.3 provide marketing support for the Products and furnish, without
charge, marketing, advertising and sales promotion assistance in the form of
catalog information, specification sheets, price lists, promotional literature,
and other commercial information which WTI has or may develop to assist the sale
of the Products;
5.4 conduct facility tours to prospective Customers which have been
approved and qualified by WTI;
5.5 forward all inquiries from prospective or existing Customers in the
Territory to Representative for handling and follow-up; and
5.6 enroll distributors to resell the Products ("Enrolled
Distributors") according to the guidelines set forth on Exhibit C.
5.7 reimburse Representative for reasonable travel expenses incurred at
the request of WTI, and subject to advance approval by WTI.
WTI reserves the right to determine the extent of its support
activities, as set forth in this Article 5, but will give careful consideration
to recommendations made by Representative.
6. REPRESENTATIVE'S RESPONSIBILITIES
Representative shall:
6.1 maintain a competent sales organization and adequate office
facilities to insure active and aggressive solicitation of orders for the
purchase of the Products from Customers located in the Territory;
6.2 use its best efforts to solicit, promote and secure Customer orders
to purchase the Products;
6.3 actively recruit and use its best efforts to support Enrolled
Distributors;
2
3
6.4 participate in any training courses or meetings conducted by WTI
for Representative;
6.5 solicit orders for the Products in accordance with current WTI
prices, discounts, warranties, and other terms and conditions of sale which
shall be furnished by WTI. Such terms and conditions shall be subject to change
at any time, but WTI shall promptly notify Representative of any such changes;
6.6 supply WTI with current and prospective Customer correspondence,
Customer activity reports, sales forecasts, and such other information which WTI
may request from time to time;
6.7 provide WTI with marketing information and data, including
competitive product literature and pricing, and lost order reports;
6.8 make recommendations for new products or enhancements which will
better meet the requirements of Customers in the Territory;
6.9 participate and assist WTI in the resolution of customer-related
problems;
6.10 use best efforts to advise WTI of any substantial changes in the
status, organization or personnel of Customers in the Territory; and
6.11 focus its efforts on the promotion and sale of the Products.
Representative shall not, without prior written consent of WTI, undertake to
promote or solicit orders for competitive products of the type, specification
and capability of the Products.
7. LIMITATIONS ON THE REPRESENTATIVE'S AUTHORITY
Representative shall not exceed the express authority given to it under
this Agreement and shall not in any event:
7.1 make any attempt to bind WTI in any way, including entering into
any contract on behalf of WTI or making account adjustments or returned Product
allowances without the prior written authorization of WTI; or
7.2 use the trademark or trade name "Wilshire Technologies, Inc." or
"Wilshire Contamination Control" or other proprietary WTI names and marks in
Representative's business name, title or designation. However, during the term
of this Agreement, Representative shall have the right to indicate to the public
that it is an authorized Representative of WTI and to advertise the Products
within the Territory under the trademarks or trade names that WTI may adopt from
time to time. In no event shall this Agreement be construed as granting
Representative any right, title or interest in WTI's trademarks.
3
4
8. ACCEPTANCE OF ORDERS
All orders or proposed contracts for the sale of the Products shall be
made directly between WTI and the Customer and shall be binding on WTI only when
accepted by it in writing. All quotations made to Customers by Representative
must contain a statement to this effect. As between the parties to this
Agreement, WTI shall have the right, in his sole discretion, to refuse to submit
a proposal to any prospective Customer, to reject any order, or to cancel any
order in whole or in part after acceptance without liability to Representative.
9. COMMISSIONS
Commissions shall be paid to Representative on the following basis:
9.1 WTI shall pay Representative commissions on net order prices, and
such commissions shall become earned at invoice date and payable on or before
the fifteenth (15) day of the month next following Customer's payment of WTI's
invoice. The term "Net Order price" means the list price of the invoiced Product
less discounts, transportation charges, taxes, returns, start-up services,
trade-in allowances, special packaging adders, or other similar items. However,
in the event that WTI subsequently refunds or credits to Customer all or any
portion of the Net Order price, WTI shall debit or charge Representative's
commission account in the amount of the commission applicable to such refund or
credit.
9.2 Commissions on Product orders from Customers shall be paid
according to the commission schedules set forth in Exhibit D attached hereto and
made a part of this Agreement, provided that the order is accepted by WTI prior
to the effective date of the termination of this Agreement and the Product is
shipped by WTI within four (4) months following such termination date.
9.3 All expenses incurred by Representative in connection with the
operation of Representative's business, including but not limited to the Product
promotion and Customer order solicitation activities undertaken by
Representative pursuant to this Agreement, shall be for the account of
Representative. Representative understands and acknowledges that his sole and
exclusive compensation from WTI shall be a commission entitlement as provided in
Section 9 of this Agreement and Exhibits C and D attached hereto.
10. CONFIDENTIALITY
All financial, engineering, marketing or other information made
available pursuant to this Agreement shall be used solely and exclusively for
the purpose of marketing and support of the Products and shall be treated as
confidential by the parties. Both Representative and WTI agree to take such
reasonable precautions as may be necessary to prevent the disclosure thereof to
any third party, except insofar as such information shall be in the public
domain at the time of such disclosure.
4
5
11. DURATION.
11.1 This Agreement shall take effect on the Effective Date and
continue in effect for a period of one (1) year from the Effective Date. The
Agreement shall continue in full force and effect from year to year thereafter
unless terminated or modified as hereinafter provided.
11.2 After the first year, this Agreement may be terminated by either
party upon six (6) months written notice if termination notice is given prior to
the second anniversary of this contract. After the second year, this Agreement
may be terminated by either party upon nine (9) months written notice.
11.3 Either party shall have the right to immediately terminate this
Agreement in the event the other party materially breaches any article of this
Agreement and such breach remains uncured for a period of sixty (60) following
its receipt of written notice from the non-breaching party.
11.4 Upon notification of termination, Representative shall promptly
supply WTI with a list of all Customers, copies of all outstanding quotations,
and copies of all correspondence pertinent to the proper handling of Customer
negotiations. Representative shall immediately return any WTI property such as
data sheets, price books, catalogs and demonstrators.
12. ASSIGNMENT
12.1 This Agreement and the mutual obligations and duties of the
parties hereunder may not be assigned or transferred by either party without the
prior written consent of the other party to this Agreement, except that either
party may assign this Agreement in connection with a merger or the sale of
substantially all the assets of such party, provided that the assignee is at
least capable, financially and otherwise, of performing this Agreement as the
assigning party at that time.
12.2 If WTI sells the rights to any of the Products ("Affected
Products") to a company which does not accept the assignment of this Agreement
for those Affected Products, then WTI shall be entitled to immediately terminate
the Agreement with respect to the Affected Products, in consideration of paying
Representative a final Commission equivalent to the Commission earned by the
Representative on those Affected Products in the six (6) months immediately
prior to the sale of such Affected Product rights. Such payment shall be
representative sole and exclusive compensation for such termination of the
Agreement with respect to the Affected Products.
5
6
13. INDEMNIFICATION
13.1 WTI agrees to indemnify and defend Representative against and save
Representative harmless from any and all claims, demands, losses, costs or
expenses made against or sustained by Representative by reason of any act of
WTI, its affiliates, or any agent or employee thereof, or arising on account of
warranty claims, product liability claims or failure to perform claims provided
Representative promptly delivers to WTI any notices or papers served on
Representative in a proceeding covered by this indemnity.
13.2 Representative agrees to indemnify and defend WTI against, and
save WTI harmless from, any and all claims, demands, losses, costs, or expenses
made against or sustained by WTI by reason of any act of Representative, its
affiliates, or any agent or employee thereof.
14. NO WAIVER
The failure of either party hereto to enforce any of the provisions of
this Agreement or any right or remedy conferred by law shall not be deemed a
waiver of any such provision, right or remedy.
15. COMPLETE AGREEMENT
This Agreement constitutes the complete and final understanding between
the parties with respect to the subject matter, and supersedes and cancels any
prior agreements or representations, whether written or oral.
16. APPLICABLE LAW
This Agreement shall be governed and construed in accordance with the
laws of the State of California.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
WILSHIRE TECHNOLOGIES, INC. EXXUSTECH, INC.
By: /s/ Xxxx Xxx Xxxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------- ---------------------------
Xxxx Xxx Xxxxxx Xxxxxxx X. Xxxxxxxx
Title: President & CEO Title: President
---------------------------------- ------------------------
Date: 7/27/98 Date: 7/27/98
----------------------------- -------------------------
6
7
MANUFACTURER'S REPRESENTATIVE AGREEMENT
BETWEEN WTI AND EXXUSTECH
EXHIBIT A
THE PRODUCTS
ScrubPAD HT4500 Series, All
Sponge HT4754 and HT4753 (ScrubKIT Sales)
Wipers HT4790-5, and HT4790HD in ScrubKIT Sales
Mini-Sponges HT6600-10 Series, All
Swabs HT1702-50, 1714-50, 1732-50
HT1700-5, 1701-5
Kits HT4500 ScrubKIT Sampler
HT6000 PipePREPkit Sampler
Rollers HT5020X-HD (Wafer and Media Sales)
Gloves 13000 Series, All ScrubKIT Sales of Gloves
7
8
MANUFACTURER'S REPRESENTATIVE AGREEMENT
BETWEEN WTI AND EXXUSTECH
EXHIBIT B
CUSTOMERS/INDUSTRY SEGMENTS
OEM and Representative Sales
Master Representative sales through OEM relationship with High Vacuum Equipment
Manufacturers and High Vacuum Dealers as WTI's exclusive Representative for such
relationships in the United States of America.
Markets to be served by OEMs and High VAC Dealers:
Semiconductor Equipment Glass and Quartz Equipment
Thin Film Microcircuits High VAC Equipment Thin Film Head Wafer Equipment
Disk Media Equipment Flat Panel Display Equipment
High VAC Equipment Components Xxxxxxx and Targets
Production/Rework
Master Representative Sales
Master Representative Sponsorship for sales through WTI's Enrolled Distributors,
domestic and international, in the United States of America. Sponsorship
includes support of Product introduction at senior management and engineering in
targeted semiconductor, thin film, flat panel display and disk media accounts;
training for sales to such accounts; development of promotion, presentations and
collateral; production of showcases and seminars; and actual site sales support
in primary accounts.
Markets to be served by Enrolled Distributors:
Semiconductor FABs Glass and Quartz Manufacturing
Thin Film Microcircuit Production Thin Film Head Wafer FABs
Disk Media FABs Flat Panel Display FABs
Medical Devices (CVD) High VAC Component Cleaning Services
8
9
MANUFACTURER'S REPRESENTATIVE AGREEMENT
BETWEEN WTI AND EXXUSTECH
EXHIBIT C
DISCOUNT AND COMMISSION SCHEDULE
Under this agreement, Representative and WTI can mutually agree to sell accounts
on a distribution, OEM distribution, direct representative, or dealer resale
basis, or through sponsorship of an Enrolled Distributor sale via individual
customer preference:
1. Representative Distribution sales are made from Representative stock of WTI
Products which Representative is entitled to purchase from WTI at 40% discount
from WTI's published suggested list pricing. Representative bills and services
the account through Representative personnel.
2. Representative Direct Representative Sales are made from WTI Stock of WTI
Product at 28% commission on WTI's published suggested list pricing. WTI
delivers and bills customer upon receipt of credit approval, and commissions are
payable in accordance with section 9 of this Agreement.
a. Representative can choose to use High Vacuum Dealer Network to
service customers per terms in Item 2. above, and WTI will pay 16% commission to
that dealer and 12% to Representative on WTI published suggested list pricing.
b. All commissions, per the terms in Item 2., will be reduced by any
discounts provided to the customer, such discounts of commissions will be split
60% for Dealer and 40% for Representative. WTI will only participate in
discounts on a case-by-case basis.
3. Representative OEM Distribution sales, as WTI or private labeled product sold
by equipment companies' third party product distribution groups at 28% discount
from WTI's Suggested List Pricing, will be commissioned to Representative on net
sales to the OEM at 12% for all Products and kits listed in Exhibit A.
4. All Representative sales are subject to credit review and approval by WTI CFO
prior to acknowledgment of orders and start of delivery schedules.
5. Representative Sponsorship apply to all sales of Products listed in Exhibit A
as commissions on net stocking sales to Enrolled Distributors in accordance with
Exhibit D of this Agreement.
6. Commissions apply only to Products sold to and used in the United States of
America.
9
10
MANUFACTURER'S REPRESENTATIVE AGREEMENT
BETWEEN WTI AND EXXUSTECH
EXHIBIT D
COMMISSION SCHEDULE FOR SALES THROUGH ENROLLED DISTRIBUTORS
Part Number Series Representative's Commission
------------------ ---------------------------
HT4500 7%
HT4700 10%
HT6600-10 10%
HT1702-50, HT1714-50 10%
HT1729-50, HT1732-50 10%
HT1700-5, HT1701-5 10%
HT4500-10 10%
HT4500CES 10%
HT5020X-HD 10%
*13000 10%
* When part of kits containing ScrubPADs.
