REPRESENTATIVE'S AGREEMENT
THIS AGREEMENT entered into this 18th day of August, 1998, between PLUMA,
INC., a North Carolina Corporation with its principal office at 000 Xxxxxxxxxx
Xxxx, Xxxx, Xxxxx Xxxxxxxx 00000 (hereinafter, the "Company"); and THE XXXXX
GROUP, a Georgia limited liability corporation with its principal offices at 000
Xxxxxxxx Xxxxxxx, Xxxxx #000, Xxxxxxx, XX 00000 (hereinafter, the
"Representative").
BACKGROUND
The Company is an established manufacturer of sportswear apparel products.
The Company has requested that the Representative act as an agent for the
Company to market and sell its products which are considered "irregulars" and/or
"close-outs" (the "Irregular Products") and Representative has agreed to
represent the Company in the solicitation of orders for the Irregular Products.
The Company and Representative desire to express herein the terms and conditions
upon which Representative shall represent the Company and solicit orders for the
Irregular Products.
COVENANTS
In consideration of the Mutual covenants contained herein, the parties
agree as follows:
1. The Company hereby appoints Representative as its sales representative
to sell its Irregular Products. This will not include the output or sales of
irregular or close-out products of the Xxxxx X. Xxxxxxxx and Stardust Divisions
of the Company or any future subsidiaries that become partially or wholly owned
by the Company, after the date hereof. This Agreement will not preclude the
Company and Representative from contracting for other services that are not
covered under this Agreement.
2. Representative hereby accepts such appointment and agrees to diligently
sell and promote the Company's Irregular Products subject to the provisions and
conditions hereinafter stated, and to devote such time as is reasonably
necessary to sell all of the Company's Irregular Products.
3. The Company shall be entitled to communicate, negotiate with and sell
close-out and irregular products directly to any regular customer of the Company
(i) which has an established policy with the Company regarding its purchase of
goods from the Company which are considered to be irregular; or (ii) who the
Company elects to sell Irregular Products to from time to time and the Company
will not be obligated to pay Representative any commissions on direct sales of
Irregular Products by the Company to such customers. Except for contact with its
regular customers as set forth in (i) and (ii) above, the Company will not
negotiate with or sell Irregular Products to new customers without first having
afforded the Representative the opportunity to sell all of the
Company's Irregular Products (not sold to regular customers as specified above)
at prices equal to or greater than those prices set forth on Exhibit A. The
Company will notify the Representative of any contact with new customers
concerning the Irregular Products and will provide Representative with copies of
any written correspondence with such new customers. Thereafter, Representative
shall negotiate the sale of any Irregular Products to such new customers. In the
event Representative is unable to sell all of the Company's Irregular Products
(other than those sold by the Company to its regular customers as set forth
above), then the Company shall have those rights in Section 19 below.
4. The Company shall furnish to Representative such pricing, delivery and
technical information as necessary, in Company's opinion, for Representative to
effectively promote and sell the Company's Irregular Products. The price of the
Irregular Products that Representative shall quote to customers shall change
from time to time and Representative agrees that it shall not, without Company's
consent, sell the Irregular Products for less than the price quoted by Company
to Representative. The initial prices of the Irregular Products shall be as set
forth on Exhibit A attached hereto and incorporated herein by reference. As the
prices to be charged for the Irregular Products change from time to time, a new
Exhibit A shall be initialed by the parties and attached hereto.
5. All orders solicited by the Representative shall be subject to
acknowledgment and acceptance by the Company at its principal office, and will
be subject to its standard terms and conditions of sale or as agreed to by the
Company. The Company shall be under no obligation to Representative to accept
(or reject) any order solicited by Representative, but must give Representative
reasonable explanation for the rejection of any such order. Reasonable
explanation for the rejection of any order, for the purposes of this document,
shall include but not be limited to the following: (a) a sales price that will
not generate reasonable profits for the Company based on the Company's best
available information at the time of receipt of the order and the fact that the
goods being sold by Representative are irregular and/or close-out goods; (b) a
requested delivery date that the Company does not believe it can meet based in
the sole judgment and discretion of the Company; and (c) lack of adequate credit
information for credit approval, or credit unworthiness of a customer, as
determined by the Company, based upon information supplied to the Company by the
customer or available to the Company from other sources.
6. Representative shall make no representation or warranties to customers
or potential customers with respect to the Company's Irregular Products except
as stated in the standard policies and written warranty offered by the Company
or except as otherwise approved by the Company.
7. Representative shall not make any allowance or adjustments in the
accounts of customers or authorize the return of any product without obtaining
the prior authorization of the Company. In the event Representative makes such
allowances, adjustments or returns without prior authority by the Company, the
Representative shall be responsible for all costs incurred by the Company.
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8. Representative shall abide by all sales and marketing policies, rules
and regulations which the Company may from time to time adopt and communicate in
writing.
9. Representative shall, whenever requested by the Company, follow up on
all sales correspondence between the Company and any purchaser or prospective
purchaser of Irregular Products and shall assist in the solution of commercial
or technical problems arising between the Company and any such purchaser or
prospective purchaser.
10. Representative shall make and submit such reports and in such manner
and form as the Company may reasonably require regarding the business of the
Representative conducted under this Agreement. Representative shall furnish to
the Company, upon request, copies of all correspondence relating to the orders
solicited by Representative, pursuant to this Agreement.
11. Representative shall use its best efforts to assist Company in
implementing Company's accounts receivables collection policy to collect past
due accounts owed to Company by customers solicited by Representative; provided,
Representative shall have no obligation to institute legal proceedings or employ
counsel to collect such accounts. Any legal proceedings necessary to collect any
past due accounts shall be the responsibility of Company.
12. Representative shall participate with Company in the administration of
customer service, with Representative having primary responsibility for
receiving customer complaints or other problems and coordinating the resolution
thereof with the Company, provided, that Representative may refer repetitive
customer complaints and other problems relating to Irregular Products, to the
Company if said complaints continue as the result of Company consistently
failing to meet its obligations to any customer. Furthermore, Representative
will consult with Company regarding production scheduling with the understanding
that all regular customers take priority over customers of Irregular Products.
13. Representative shall be entitled to receive a commission on all
shipments of Irregular Products made by the Company which are booked by
Representative during the term of this Agreement as follows:
(a) An amount equal to ten percent (10%) of the Net Sales of shipments of
Irregular Products up to Eight Million and no/100 Dollars
($8,000,000.00);
(b) An amount equal to nine percent (9%) of all Net Sales of Irregular
Products exceeding Eight Million and no/100 Dollars ($8,000,000.00)
but less than Twelve Million and no/100 Dollars ($12,000,000.00); and
(c) An amount equal to eight percent (8%) of all Net Sales of Irregular
Products over Twelve Million and no/100 Dollars ($12,000,000.00).
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The term "Net Sales" shall mean the gross aggregate sales price of the Irregular
Products sold by Representative, to customers less (i) freight charges, (ii) any
discounts and credits allowed to customers by the Company, and (iii) any
uncollected accounts receivable from any such customers as determined by the
Company.
14. Any commissions due Representative pursuant to Section 13 above shall
be payable to Representative not later than the fifteenth (15th) day of the
month following the month in which Company collects the account receivable
related to a shipment booked by the Representative pursuant to and during the
term of this Agreement.
15. The Company shall not be responsible for any advertising and/or
promotion of the Company's Irregular Products. Representative may contract for
advertising and promotion of the Company's Irregular Products on behalf of the
Company, but only if agreed to and approved by by the Company prior to any such
promotion. Any advertising or promotion contracted by the Representative on
behalf of the Company shall be the sole responsibility and liability of the
Representative. Furthermore, Representative shall be responsible for paying all
other expenses incurred by it in selling the Irregular Products and Company
shall have no responsibility or liability therefor.
16. All other expenses incurred by the Representative in the promotion and
sales of the Company's Irregular Products shall be solely the responsibility of
Representative unless otherwise expressly authorized in writing by the Company.
17. Nothing in this Agreement shall be construed to constitute
Representative as a partner, employee or agent of the Company, nor shall either
party have any authority to bind or commit the other in any respect, it being
intended that each shall remain an independent contractor and, except as
expressly stated herein, shall remain in absolute control and responsible for
its own actions.
18. Representative shall not be entitled to assign its rights under this
Agreement or to authorize any other person, other than an employee of
Representative, to hold himself out as a representative of the Company without
the express written consent of the Company.
19. Either the Representative or the Company shall be entitled to terminate
this Agreement by giving six (6) months prior written notice to the other party
hereto. Upon termination of this Agreement, the Representative shall immediately
return to the Company all written price, delivery and technical information (and
copies thereof) relating to the Company's Irregular Products.
Notwithstanding the six (6) month notice requirement to terminate this
Agreement as referenced above, upon ten (10) days prior written notice to the
Representative, the Company shall be entitled to engage other representatives to
sell its irregular and close-out products, or the Company may sell such products
itself, without any obligations to make commission payments to Representative in
the event Representative fails for a period of sixteen (16) consecutive weeks to
sell
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all of the Company's Irregular Products (not sold by the Company to its regular
customers as provided in Section 3 above) at prices equal to or greater than
those prices set forth in Exhibit A. Representative shall be entitled to be
reinstated as the Company's Representative following its demonstration to the
reasonable satisfaction of the Company that it can sell again all of the
Company's Irregular Products.
20. Any termination of this Agreement shall not, however, relieve the
Company of any liability to the Representative for any earned but unpaid
commissions as provided above.
Additionally, in the event Xxxxx xxxxx any Irregular Products to any of
those customers listed on Exhibit B (the "Representative's Customers") for a
period of one year after the date of the termination of this Agreement, the
Company shall be obligated to pay Representative commissions on such sales
according to Section 13 of this Agreement.
21. The Company agrees to indemnify and save harmless Representative
against any liability (including attorney fees) for patent or trademark
infringement resulting from the sales and/or use of the Company's Irregular
Products sold by Representative which fail to meet the Company's specifications
for such Irregular Products. The Representative shall notify the Company
immediately upon learning of any actions based upon alleged patent or trademark
infringement or defective or nonconforming Irregular Products.
Representative agrees to indemnify and hold harmless from loss or damage
(including attorney fees) which the Company might sustain as the result of the
Representative's misrepresentations, or negligence while selling the Irregular
Products of the Company. Representative agrees to maintain liability insurance
during the term of this Agreement.
22. Any legal notice or other communication under this Agreement shall be
in writing, and shall be considered given when delivered personally, by
Certified or Registered Mail, Return Receipt Requested, or upon receipt of a
confirmed transmission if sent by telecopy or facsimile transmission, and in
each case if addressed as follows:
COMPANY:
Pluma, Inc.
0000 Xxxxx Xxxxxxxx Xxxx (24112)
P. O. Xxx 0000
Xxxxxxxxxxxx, XX 00000
Attn: Xxx Xxxxxx (all correspondence)
Or Attn: Xxxxxx Wine, Esquire (legal notices)
REPRESENTATIVE:
The Xxxxx Group
100 Galleria Parkway, Suite 4203500 Xxxxxxx Xxxxxxxxxx Xxxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx (all correspondence)
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23. Neither party may assign or delegate this Agreement without the prior
written consent of the other party.
24. This Agreement contains the entire understanding and agreement between
the parties with respect to the subject matter hereof and supersedes all
previous verbal and written agreements of the parties and may be modified or
amended only by a writing executed by Representative and an authorized officer
of the Company.
25. This agreement shall be governed in all respects by the laws of North
Carolina without regard to choice of law provisions. The parties agree that the
exclusive jurisdiction over and venue in any legal action or proceeding arising
out of this Agreement shall be in state and federal courts located in North
Carolina.
IN WITNESS WHEREOF, Company and Representative have executed this Agreement
on the day and year first written above.
COMPANY
Pluma, Inc.
By: /s/ R. Xxxx Xxxxxxx, Xx.
---------------------------------------
R. Xxxx Xxxxxxx, Xx., President and CEO
[CORPORATE SEAL]
REPRESENTATIVE
Riada/The Xxxxx Group
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------------
Xxxxxxx X. Xxxxx, President
[CORPORATE SEAL]
6
EXHIBIT A
Exhibit A RIADA XXXXX PRICING
OLD VOL. VOLUME VARIANCE FROM
STYLE/DESC. PRICE PRICE -10% OLD PRICE
---------------------------------------------------------------------------------------------
11I00 (Adult 7 oz. Crew) $ 28.20 $ 33.00 $ 29.70 $ 1.50
11I01 (9 oz. 80/20 & 50/5050/50) $ 31.44 $ 39.00 $ 35.10 $ 3.66
11I0J (JUMBO 7 & 9 oz.) $ 30.00 $ 42.00 $ 37.80 $ 7.80
11I05 (11 oz crews) $ 45.00 $ 57.00 $ 51.30 $ 6.30
11I42 (12 oz. 90/10) $ 57.00 $ 72.00 $ 64.80 $ 7.80
12I60 (Youth crews) $ 16.08 $ 19.80 $ 17.82 $ 1.74
13I00 (Juvenile crew) $ 15.00 $ 19.80 $ 17.82 $ 2.82
14I00 (Toddler crew) $ 14.40 $ 18.00 $ 16.20 $ 1.80
26I00 (Adult 7 oz. Pant) $ 31.44 $ 36.00 $ 32.40 $ 0.96
21I01 (Adult 9 oz. Pant) $ 36.00 $ 42.00 $ 37.80 $ 1.80
21I0J (Jumbo pants-7 & 9) $ 31.44 $ 39.00 $ 35.10 $ 3.66
22I30 (Youth pants $ 18.00 $ 24.00 $ 21.60 $ 3.60
23I00 (Juvenile Pants) $ 15.00 $ 18.00 $ 16.20 $ 1.20
24I00 (Toddler Pants) $ 14.40 $ 16.80 $ 15.12 $ 0.72
25I00 (Infant Pants $ 12.00 $ 15.00 $ 13.50 $ 1.50
91I00 (Adult Fashion tops) $ 37.80 $ 48.00 $ 43.20 $ 5.40
98I00 (Youth Fashion tops) $ 18.00 $ 27.00 $ 24.30 $ 6.30
51I00 (Zip hood 7 & 9 oz.) $ 57.00 $ 72.00 $ 64.80 $ 7.80
58I00 (Youth zip) $ 42.00 $ 48.00 $ 43.20 $ 1.20
53I00 (Juvenile zip) $ 30.00 $ 39.00 $ 35.10 $ 5.10
54I00 (Toddler zip) $ 28.80 $ 33.00 $ 29.70 $ 0.90
31I05 (11 oz. PO Hood) $ 64.20 $ 84.00 $ 75.60 $11.40
31I10 (Adult 7 oz. PO) $ 46.04 $ 57.00 $ 51.30 $ 5.26
31I01 (Adult 9 oz. PO) $ 54.00 $ 63.00 $ 56.70 $ 2.70
32I60 (Youth PO) $ 33.00 $ 42.00 $ 37.80 $ 4.80
33I00 (Juvenile PO) $ 27.00 $ 32.40 $ 29.16 $ 2.16
41I16 (Adult jersey short $ 18.00 $ 24.00 $ 21.60 $ 3.60
21I16 (Adult jersey Pant $ 23.04 $ 30.00 $ 27.00 $ 3.96
11I09 (Adult 6.1 oz t) $ 16.08 $ 18.00 $ 16.20 $ 0.12
11I19 (T-2XL) $ 16.08 $ 19.92 $ 17.93 $ 1.85
11I06 (7 oz. Adult t) $ 18.00 $ 24.00 $ 21.60 $ 3.60
11I16 (7 oz. L.S. T) $ 19.92 $ 25.20 $ 22.68 $ 2.76
51I10 (Adult cardigan) $ 51.00 $ 66.00 $ 59.40 $ 8.40
Average $ 3.76
EXHIBIT B
EXHIBIT B
Number Name Location Telephone
--------------------------------------------------------------------------------
10175 STONE & COMPANY Martinsville
11191 SPORT MAX INC. Oshkosh
11200 GRANDPA XXXXXXX'X Bridgeton 314/739-8300
11202 XXXX DEPARTMENT STOR Rocky Hill 860/257-2000
11205 SPALDING HOSIERY SHO Xxxxxxx 770/227-4362
11220 X. XXXXXX BROOKLYN 000-000-0000
11222 DEL PRINCE FASHIONS BUFFALO 000-000-0000
11225 COLIN'S IMPORTS,INC XXXXXX CITY 000-000-0000
11226 ALL THE TIME FASHION NEW YORK 000-000-0000
00000 XXXXXX XXXXX XXXXXXXXXX 000-000-0000
00000 XXXXXXX SALES WARWICK 000-000-0000
11229 SALAH SPORTSWEAR INC NEW YORK 000-000-0000
11235 COOPERS ALBUQUERQUE 000-000-0000
00000 X & X XXXXXX/ XXXXXX XXXXXXXX 000-000-0000
11255 E.D COMPANY PIEGON FORGE 000-000-0000
11256 MYSTERY STORE STOCKTON
11257 T-SHIRT WHOLESALE OU FOUNTAIN VALLEY 714.434.1560
00000 XXXX XXXXXX BOOT D/B PETALUMA
11263 SAMIL CO., INC. STATEN ISLAND 000-000-0000
11264 ACTION FOOTWEAR CHULA VISTA 000-000-0000
11265 NEW YORK MAN LTD. BROOKLYN 000-000-0000
11266 THE FAMILY CLOTHESLI STATE COLLEGE 000-000-0000
11267 DIAMOND MERCANTILE C CINCINATI
11268 T-SHIRT CITY CORP. LINCOLN
11270 CAPE CLOTHING FORESTDALE
11290 XXXXXX ENTERPRISES I PASCO 000-000-0000
11291 PRO'S CHOICE HOLIDAY 000-000-0000
11292 G & M VARIETY ST. XXXXXX 000-000-0000
11293 XXXXXX'X OUTLET CENT AVILLA 000-000-0000
11294 XXXXX FARM SVC LOA
00000 XXXXXXXX XXXXXXX XXX XXXXXXX
00000 X. XXXXX & CO. GREEN ACRES 000-000-0000
11298 XXXXX'X OUTPOST THERMOPOLIS
11299 XXXXX AND THE TEES NANTUCKET
11300 XXXXXXX DRY GOODS CO SALT LAKE CITY 000-000-0000
11325 LOS HERMANOS LOS ANGELES 213.488.4924
00000 XXX X XXXXXXX XXXXX 541.882.6650
11327 BONANZA WHOLESALE DI Oakland
11329 ARIK SURPLUS SAN FRANCISCO
11330 VALUE CITY DEPT. STO COLUMBUS 614.471.4722
00000 X.X. XXXXXXX XXXXXXXX
00000 XXXXXX XXXXX INC. DUBLIN 925.828.3838
00000 X & X XXXXXXx XXXXXXXXX
00000 X.X. XXXXXXXX & SONS HILLSBORO 603/464-3661
11383 FELDMANS ODESSA 816.230.5539
11390 XXXXX SUPPLY CO. X. XXXXXXXX
11392 XXXXX INC. d/b/a/ SA HEMET 909/658-7247
11395 JEMBRO VARIETY STORE Brooklyn 718/832-1070
11396 APPAREL RESOURCES IN PORT ORANGE 904/760-6817
11406 LONGS DRUG WALNUT CREEK 805/735-7651
11409 XXXXXXXXXX INC. GAINSVILLE 770/532-4402
11411 ULTRA GIFTS INC. LAUGHLIN 702/298-1919
11413 USA FAMILY OUTLET DEER PARK 000-000-0000
11414 CLASSY SWEATS SAN FRANCISCO
11415 A BAR L WESTERN TONOPAH
11417 SWEATSHIRTS ETC. XXXXXXX
