Exhibit 10(viii)
AGREEMENT
THIS AGREEMENT , made this 16 day of February 1999, between Maxcomm
Inc. a Virginia corporation with a place of business at 000 X Xxxxx Xxxxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxx ("Maxcomm"), and Bontex, Inc., a Virginia
corporation, with a place of business at Xxx Xxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxxx
00000 ("Bontex"), provides as follows:
RECITALS
WHEREAS, Bontex is in the business of manufacturing and selling products
globally in the footwear, headwear, luggage, and allied industries; and
WHEREAS, Maxcomm has, at its sole expense over the last two years,
expended approximately $150,000.00 of documented expenses, identifying,
coordinating and negotiating with various companies to explore and create
marketing and sales opportunities in the global footwear, headwear, luggage and
allied industries; and
WHEREAS, this expense and these efforts were undertaken to provide
opportunities pursuant to which Bontex could supply new products or provide paid
marketing assistance in the global footwear, headwear, luggage, and allied
industries; and
WHEREAS, Maxcomm has identified, qualified and developed a marketing
relationship with Solvay Engineered Polymers, Gencorp, Collano and Express Tool
(the "Identified Targets"), which will inure to the benefit of Bontex; and
WHEREAS, Maxcomm has committed to promote Bontex's manufacturing
capability, global marketing network and industry contacts to the Identified
Targets; and
WHEREAS, Maxcomm will continue in its efforts to develop similar
opportunities which may lead to further opportunities for joint participation
between Bontex and Maxcomm on a case by case basis:
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound
hereby, Maxcomm and Bontex agree as follows:
1. Maxcomm will continue to work with the Identified Targets for the
benefit of Bontex, and will use its best efforts to develop and refine products
for global distribution by Bontex in the footwear, headwear, luggage and allied
industries.
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2. In consideration of such efforts by Maxcomm, Bontex shall pay to
Maxcomm, on a monthly basis, a commission payment calculated based on 6% of all
"collected net sales" made by Bontex with respect to the distribution of
products of the Identified Targets during the term of this agreement. For
purposes of this agreement, "collected net sales" shall mean the amount actually
and finally received by Bontex on a sale of a product of an Identified Target
after all expenses of sale. Expenses of sale shall include, without limitation,
discounts for cash payments, other special terms, third party costs (e.g. ocean
freight, inland freight, insurance, etc.) and any incremental costs. Monthly
commissions will be paid in arrears, on the 10th day of each month. In the event
that any amount is refunded or otherwise offset, the commission paid to Maxcomm
on that pro rata amount will be deducted from the next commission payment to be
made to Maxcomm. Except as otherwise specifically provided herein, Bontex shall
not be responsible for any expenses incurred or disbursements made by Maxcomm.
3. The relationship of Maxcomm to Bontex under the terms of this
agreement shall be that of an independent contractor/consultant not for hire,
and not as an agent, servant, employee, representative, distributor or any other
relationship. Notwithstanding the foregoing, Maxcomm shall have the express
limited authority to negotiate sales with customers and contracts with
suppliers, with respect to the distribution of products of the Identified
Targets, are subject to Bontex's final approval.
4. Maxcomm and Bontex shall each keep the other fully informed of all
transactions effecting their relationship and, without limiting the foregoing,
Maxcomm shall keep Bontex fully informed of all contacts with, and the status of
Maxcomm's relationship with, all suppliers and customer's representatives. In
communicating with customers on Bontex's behalf, Maxcomm will, at all times,
comply with reasonable policies implemented by Bontex, including the Bontex
ethics policy, a copy of which is attached hereto. Maxcomm agrees to submit from
time to time to Bontex, at Bontex's request, written reports relating to its
activities under the terms of this agreement. Such reports shall be in form
reasonably satisfactory to Bontex.
5. Bontex recognizes that, prior to the date of this agreement, Maxcomm
has incurred significant costs and expenses in developing relationships with the
Identified Targets for the benefit of Bontex. Many of the costs and expenses
incurred were of an extraordinary nature, and resulted in important contacts and
distribution opportunities for Bontex. Bontex has agreed to partially reimburse
Maxcomm for selected costs and expenses, it being understood and agreed that
Maxcomm
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will also benefit from these contacts and should therefore be responsible for
some of these costs and expenses. Therefore, in further consideration of
Maxcomm's past development, sales, distribution and ongoing marketing efforts,
Bontex hereby agrees to reimburse Maxcomm $75,000.00 of such costs and expenses,
which Maxcomm hereby represents and warrants to be which approximately 50% of
the amount actually incurred to date by Maxcomm. Such reimbursement shall be
made as follows:
(a) $20,000 upon the execution of this agreement; and
(b) the remaining $55,000 paid in 18 equal monthly installments of
$3,000 and a final payment of $1,000. The above notwithstanding, Maxcomm agrees
that, in Bontex's sole discretion, such payment amounts may be altered or
delayed as required by Bontex's lenders or as may be determined by Bontex in its
sole discretion; provided, however, that in any event, the entire $75,000 shall
be repaid no later than three (3) years following the execution of this
agreement.
6. The initial term of this agreement shall be five (5) years. This
agreement may be terminated at any time by either party for cause by either
party giving the other 30 days written notice of such termination at the above
address by certified mail. Upon such termination, Bontex shall be obligated to
pay Maxcomm the commission on all sales up to the date of termination and during
the 30 day notification period. This agreement shall be terminated automatically
and shall be null and void thereafter and neither party shall have any
obligation to the other if Xx. X.X. Xxxxxxxx dies or is for any reason unable to
perform services under this agreement, on behalf of Maxcomm, for an aggregate of
180 consecutive days during any one year term hereof. Additionally, this
agreement shall be terminated automatically and shall be null and void
thereafter and neither party shall have any obligation to the other if any
bankruptcy or insolvency proceeding is commenced by or against Maxcomm and, in
the case of an involuntary petition, is not dismissed within 120 days, or
Maxcomm makes an assignment for the benefit of creditors.
7. Maxcomm will continue to be a primary contact with the Identified
Targets and other future companies as may be agreed to, from time to time, by
Bontex and Maxcomm.
8. Bontex will provide Maxcomm with reasonable staff support, in
Bontex's sole discretion, in order to generate sales and to service accounts
with respect to the distribution of products of the Identified Targets. In this
regard, Bontex shall designate a Bontex employee as a primary contract for
Maxcomm. Bontex shall retain control over such employees and such employees
shall report to the designated Bontex contact and not directly to Maxcomm.
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9. Neither Bontex nor Maxcomm will enter into any new relationship which
would be considered a conflict with the product distribution or marketing
efforts contemplated herein, without the express written consent of the other.
10. Maxcomm agrees that, during the term of this agreement, neither it
nor any of its employees or associates, nor any firm or corporation with which
it is associated, will sell or in any other way deal in or handle for any other
manufacturer, supplier or distributor, any product which, in Bontex's sole
opinion, may be similar to or in competition with Bontex's products, or which
may be in competition with the distribution of products contemplated by this
agreement.
11. Maxcomm shall provide such assistance as Bontex may reasonably
request in obtaining all licenses and permits and for satisfying all formalities
as may be required to import or export the products contemplated by this
agreement, in accordance with then prevailing law and applicable rules and
regulations.
12. The parties shall comply with all applicable laws, rules and
regulations affecting this agreement and their performance of this agreement.
Maxcomm shall maintain all necessary registrations with governmental agencies,
commercial registries, xxxxxxxx of commerce, or other offices which may be
required under local law in order to properly conduct Maxcomm's business.
Maxcomm shall also comply with United States laws applicable to the sale of the
products contemplated herein, including without limitation, the Foreign Corrupt
Practices Act (which prohibits certain payments to government officials or
political parties).
13. The failure of any party to enforce any of the terms and conditions
herein contained shall not be deemed a waiver thereof nor shall it prevent the
subsequent enforcement of such term or condition.
14 Each party hereto shall hold harmless, indemnify and defend the other
from all causes of action and/or claims by whatever name known (including
reasonable attorney's fees), arising from such party's actions during the
contract period herein provided for, which are related to the matters covered by
this agreement.
15. This agreement sets forth the entire understanding of the parties in
connection with the subject matter hereof and supersedes all prior agreements,
understandings, writings or representation.
16. This agreement shall be governed and interpreted under the laws of
the Commonwealth
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of Virginia. Any dispute arising out of this agreement shall be finally resolved
by a state or Federal Court in Roanoke, Virginia and the parties expressly
consent to such venue. The terms of this agreement shall be severable and should
any provision or subparagraph be deemed unenforceable by a court of competent
jurisdiction, such court shall have the power to reform such provision to render
it enforceable. The remaining provisions shall, in all cases, remain
enforceable.
IN WITNESS WHEREOF, the parties have executed this agreement in the
spaces provided below, as of the date first set forth above.
Bontex, Inc.
By s/Xxxxx X. Xxxxx Xxxxx X. Xxxxxx
---------------------- ------------------------
Its Controller Technical/Sales Director
------------- Director of Bontex
Maxcomm, Inc.
By s/X. X. Xxxxxxxx
----------------------
Its President
-------------
Sworn to and subscribed before me in my presence the 16th day of February 1999
____________________ Buena Vista ___________________
s/Xxxxx Xxxxxx Xxxxx Notary Public
--------------------
My Commission Expires July 31, 2000.
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