Exhibit 10.16
REPRESENTATIVE AGREEMENT
This Agreement, made this 2nd day of May, 2000, is by and between Oplink
Communications, Inc., a California corporation, having its corporate the offices
at 0000 Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, U.S.A., hereinafter referred to
as "Oplink" and
WAVETEC, INC., HAVING ITS CORPORATE OFFICES AT 0000 X. XXXXXXXX XXXX, XXXXX 000,
XXXXXX, XX 00000
hereinafter referred to as "Representative".
Oplink and Representative hereby agree as follows:
1. GENERAL PROVISIONS
(a) APPOINTMENT Oplink hereby appoints Representative, and Representative
hereby accepts such appointment, as its exclusive sales representative
for Oplink's products designated in Exhibit A (the "Products").
(b) RELATIONSHIP. It is understood that Oplink shall not exercise any
control over the activities and the operations of Representative, each
being recognized hereunder as an independent contractor; under no
circumstances shall either have any authority or right to enter into
any contracts or commitments in the name of or on behalf of the other
nor to bind the other in any way whatsoever.
(c) NON-COMPETITION. It is also understood that Oplink shall not place any
restriction upon the number of other entities which Representative may
represent. However, Representative agrees that it will not represent
any other entity whose products are considered by Oplink as competitive
with the Products (except by mutual agreement in writing).
(d) TERRITORY. Representative agrees to use its best efforts to promote and
solicit orders for the Products in the territory designated in Exhibit
B ("Territory").
(e) PUBLIC REPRESENTATION. Representative and Oplink agree that
Representative may be referred to as an Authorized Sales Representative
in advertising, signs, trade listings, directories, and similar sales
instruments until this Agreement is terminated.
(f) OPLINK'S EXCLUSIVE CONTROL. Oplink shall establish and have exclusive
control over all prices, discounts, specifications, and terms governing
the sale and shipments of Products directly to the customer.
Representative shall not (i) enlarge, limit, otherwise modify or alter,
accept or reject orders in Oplink's name or make delivery promises,
(ii) make price quotations for quantities outside the volumes
authorized in Oplink's approved price list, and (iii) make
representations or warranties/guarantees, without Oplink's prior
approval.
(g) TERM. Representative shall continue to represent Oplink as herein
provided until either party elects to terminate the relationship by
giving the other party not less than thirty (30) days' advanced written
notice.
1.
2. OPLINK'S RIGHTS AND OBLIGATIONS
(a) PROMOTIONAL MATERIAL. Oplink shall be responsible for supplying
Representative all catalogs, specification sheets, product photographs
and other sales material that are reasonable for the solicitation of
orders for the Products.
(b) PRICE ADJUSTMENTS. Oplink will from time to time make price adjustments
to the Products and will notify Representative of such changes in
writing not less than ninety (90) days in advance.
(c) PRODUCT LIST AMENDMENTS. During the validity of this Agreement, Oplink
has the right to, at its sole discretion, increase or decrease the
number of Products covered by this Agreement provided that (i) in the
event of an increase, the new products are not competitive with the
other products then represented by Representative, (ii) in the event of
a decrease, such decrease does not affect any of Oplink's outstanding
obligation of delivery. Notwithstanding the foregoing, Representative
may decline to sell any new products by so notifying Oplink in writing
within twenty (20) days of receiving notice of product increase
provided that Oplink shall have the right to engage another
representative/distributor to solicit orders for/sell the products so
declined by Representative.
(d) ACCEPTANCE/REJECTION OF PURCHASE ORDERS. All orders are subject to the
acceptance of, or rejection by, an authorized officer of Oplink. Oplink
shall notify the customer in writing of a purchase order being accepted
or rejected and the shipping schedule (in the case of an order being
accepted) within seven (7) days of receipt of the purchase order, and a
copy of such written notice shall be transmitted to Representative at
the same time.
(e) SHIPMENT TERMS. Oplink agrees to make shipments directly to customers
in, the Territory according to the following terms:
1. FOB San Jose, California, U.S.A.
2. Net 30 days
(f) DOCUMENT SUPPLY TO REPRESENTATIVE. Oplink shall supply Representative
with copies of all commissionable orders received directly by Oplink
and copies of all order confirmations, shipping notices and invoices
originated at the time of shipment. The aforesaid copies are to be
furnished to Representative no less frequently than at monthly
intervals.
(g) INTELLECTUAL PROPERTY PROTECTION, PRODUCT PERFORMANCE AND PRODUCTION.
Oplink shall be solely responsible for the design, development, supply,
production and performance of the Products and the protection of its
trade name or names.
(h) COLLECTION. It is understood that the full responsibility of all
collections rests with Oplink which exercises complete control over the
approval of customers, credits, orders and contracts.
2.
3. REPRESENTATIVE'S RIGHTS AND OBLIGATIONS
(a) REPRESENTATIVE'S OWN COST. The Representative shall pay all of its
sales expenses, including any expense of its sub-agents, incurred in
connection with the representation as herein contemplated.
(b) RETURNS. Representative shall only, on behalf of Oplink, accept the
return of Products, or make allowances with respect thereto, with the
prior written approval of Oplink.
(c) PERFORMANCE. Unless otherwise agreed in writing, Representative shall
procure the annual target numbers of orders for Oplink as set forth in
Exhibit C (the "Targets"). Failure to do so shall entitle Oplink to, at
its sole discretion, convert Representative's exclusive status to
non-exclusive or terminate this Agreement.
4. COMMISSIONS:
(a) CALCULATION. Oplink shall pay Representative a commission based on the
total of the "net invoice price" of all commissionable orders received
from the Territory. Such commission is fixed at the rate of 5%, which
will remain until March 31, 2002.
(b) DEFINITION OF NET INVOICE PRICE. The term "net invoice price" shall
mean the price at which the Products are actually sold to the customer
after excluding all shipping costs and any other allowances expressly
granted to the customer by Oplink including, but not limited to, taxes,
discounts, and insurance.
(c) SPLIT OF COMMISSION. The parties recognize that sometimes the
engineering jurisdiction and the ship to location are in different
territories. In such cases, a 50/50 split commission will apply. In any
territory where Oplink does not have a sales representative or
distributor, Oplink shall be considered to be such sales representative
or distributor with respect to commissions.
(d) PAYMENT. Commissions are due and payable on or before the fifteenth
(15th) day of the month following the month in which Oplink received
payment from the customer.
5. REPRESENTATIVE PERFORMING CONSIGNMENT FUNCTION
Oplink, in discussion with Representative, will together determine from time to
time if and when Representative will perform a consignment function.
Representative will agree to perform a consignment function for the sole purpose
of expediting delivery of a particular customer's product requirements as
governed by a blanket purchase order between Oplink and the customer. In such
circumstances, "consignment" shall be limited to holding Products on Oplink's
behalf, with Oplink retaining title, authority and exclusive control over such
Products(s). Representative shall only release such Products upon Oplink's
written authorization. Under no circumstance does Representative performing such
a consignment function for Oplink constitute a principal distributor
relationship.
6. MISCELLANEOUS
3.
(a) GOVERNING LAW. This Agreement shall be construed in accordance with,
and shall be governed by, the laws of the State of California, U.S.A.
(b) DISPUTE RESOLUTION. All disputes in connection with this Agreement
shall be finally settled under the Rules of Conciliation and
Arbitration of the International Chamber of Commerce by one arbitrator
appointed in accordance with said rules. In the event of any litigation
or arbitration between the parties hereto respecting or arising out of
this Agreement, the prevailing party, whether or not such litigation
proceeds to final judgment or determination, shall be entitled to
recover all of the attorneys' fees, costs, in each and every such
action, suit or other proceeding, including any and all appeals or
petitions therefrom.
(c) DAMAGES. Neither Oplink nor the Representative shall by reason of the
termination of this Agreement be liable to the other for compensation,
reimbursement, or damages either on account of present or prospective
profits, or on account of expenditures, investments or commitments made
in connection with the establishment, development or maintenance of the
business of goodwill of Oplink or the Representative or on account of
any cause or thing whatsoever, provided, however, that such termination
shall not affect the rights or liabilities of the parties with respect
to any indebtedness then owing by either party to the other.
(d) NON-SOLICITATION OF EMPLOYEES. Oplink agrees to refrain from hiring any
personnel from Representative for twelve (12) months after termination
of this Agreement.
(e) CONFIDENTIALITY. Representative shall preserve in strict confidence any
information it obtains concerning the business of Oplink including,
without limitation, trade secrets, information concerning the design or
manufacture of the Products, customer list, financial information, and
shall not disclose such information to any person or entity.
(f) ASSIGNMENT. Neither this Agreement nor any right or interest therein
may be assigned by either party to any other person or corporation
without the express written consent of the other party to this
Agreement. Any change of ownership (not including a public offering) or
primary control (greater than thirty percent (30%) of Representative
shall require a new representative agreement.
(f) EXECUTION. The parties shall each execute any and all other documents
and take any and all further steps which may be necessary or
appropriate to implement the terms of this Agreement.
(g) ENTIRE AGREEMENT. This Agreement contains the entire agreement between
the parties pertaining to the subject matter hereof and supersedes any
prior or contemporaneous agreements, representations, negotiations or
understandings between the parties not herein expressly set forth. No
supplement, modification, promise, addition or amendment of this
Agreement shall be effective or binding unless executed in writing by
both parties. The mere acknowledgment or acceptance of any order
inconsistent with the terms of the Agreement or the making of
deliveries pursuant thereto, shall not be deemed acceptance or approval
of such inconsistent provisions. No waiver of any of the
4.
provisions of this Agreement shall be deemed to constitute a waiver of
any other provision, whether or not similar, nor shall any one waiver
constitute a continuing waiver.
(h) BINDING EFFECT. This Agreement shall be binding upon, and shall inure
to the benefit of, each of the parties and their respective heirs,
legal distributors, predecessors, successors, assignees, employees,
partners, lawyers and all other persons and entities now, heretofore or
hereafter having interest whatsoever with respect to the subject matter
hereof.
(i) FULL UNDERSTANDING OF AGREEMENT. Each of the parties hereto represents
and warrants, as an inducement to the other to enter into this
Agreement, that this Agreement is entered into freely and voluntarily
by each of them, free of duress, fraud or undue influence of any kind,
including contentions, and circumstances likely to influence judgment
herein, and that each has read and fully understands and consents to
all the terms and provisions of this Agreement. The parties each
further acknowledge that they each have either consulted with legal and
tax counsel or have been given more than adequate opportunity to do so
and elected not to seek counsel, that they have each actively
participated in the negotiation and in the preparation hereof, and that
they each understand the substance, meaning, content and legal effect
of this Agreement.
(j) SEVERABILITY. The parties agree and acknowledge that if any portion of
this Agreement is declared invalid, or unenforceable, such
determination shall not effect the balance of this Agreement, but shall
remain in full force and affect, as such invalid portion shall be
deemed severable.
(k) HEADINGS. The paragraph headings contained in this Agreement are for
reference only. They shall not constitute or be considered substantive
parts of this Agreement.
IN WITNESS OF, the parties hereto have executed this Agreement on the date and
year first shown herein.
Wavetec, Inc. Oplink Communications, Inc.
By: /s/ illegible By: /s/ Xxx Xxxxx
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Title: President Title: V.P. Marketing
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5.
EXHIBIT A
PRODUCT LIST
Fiberoptic passive components, including isolators, couplers, WDM components,
circulators, wavelength lockers and switches.
6.
EXHIBIT B
TERRITORY
Texas and Oklahoma.
7.
EXHIBIT C
PERFORMANCE TARGETS
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PERFORMANCE PERIOD 2000 2001 2002 2003
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TARGET (NET [US$5,000,000] [US$20,000,000] [US$35,000,000] [US$50,000,000]
INVOICE PRICE)
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8.
