DISTRIBUTION AND MARKETING AGREEMENT
This
agreement is made by and between GELTECH SALES, LLC (hereinafter referred to
as
“Broker”)
on the
first part, and SKINNY NUTRITIONAL CORP., a Nevada corporation, with business
offices located in Bala Cynwyd, Pennsylvania (hereinafter referred to as
“Company”)
on the
second part and is effective as of the 27th day of February 2007(the
“Effective
Date”).
RECITALS
WHEREAS,
Company
is engaged in the sale and manufacture of diet products; and
WHEREAS,
Company
requires marketing and distribution for the mass distribution of its products
for sale in the United States and NAFTA territories; and
WHEREAS,
Broker
has a network of retailers, including but not limited to, food, drug,
convenience stores and specialty retailers as well as wholesalers and buyers
who
are capable of purchasing and reselling the products of Company;
and
WHEREAS,
Broker
and Company mutually desire to enter into a marketing and distribution agreement
for the United States;
THEREFORE,
in
consideration of the mutual undertakings and covenants of the parties hereto,
it
is agreed as follows:
1.
Parties, Appointment and Purpose. Company
hereby appoints Broker as its marketing and distribution representative to
sell
Company’s Products within the Territory, as such Products and Territory are
defined in Exhibit A
to this
Agreement. The Territory shall be exclusive except as set forth on Exhibit A.
Both
parties agree that the goal of this Agreement is to sell as much of the Products
as possible while maintaining quality control, and preserving the image of
Company’s brand and Broker’s goodwill with its customers while at all times
dealing with each other fairly and in good faith.
2. Broker’s
Obligations. Broker’s
obligation under this Agreement is to use its best efforts to sell Company’s
Products to eligible wholesale and retail accounts, buyers, distributors and
direct store delivery providers in the Territory and to satisfy the “Sales
Goals” set forth in Exhibit B.
To
perform such obligations, Broker shall solicit orders on behalf of the Company
from wholesalers, retailers, buyers, distributors and direct store delivery
channels at the prices and upon the terms of sale the Company establishes from
time to time. The Company’s initial Product price sheet is set forth as
Schedule
A-1
to
Exhibit
A
of this
Agreement. All Product orders shall be submitted to the Company for acceptance
and fulfillment. The Company in its sole discretion shall determine the amount
and terms of credit, if any, to be extended to any customer, distributor or
direct store delivery provider. Broker agrees to use its best efforts to execute
the following duties and responsibilities: (a) to aggressively and diligently
sell, promote, market and broker the Products, necessary Product information
and
literature of Company; (b) to have available all necessary Product and samples
to promptly meet the needs of prospective buyers of the Products; and (c) to
comply with all Company ordering procedures for the Products to ensure prompt
delivery of Products.
3.
Company’s Obligations. Company’s
obligation under this Agreement is to assure that Broker is furnished with
Products and included in marketing decisions that affect the Territory. Company
shall provide to Broker all necessary marketing and promotional literature,
trademarked materials and artwork which may be used by Broker during the term
of
this Agreement in accordance with the trademark license provisions set forth
below.
4.
Representations and Warranties
4.1
Representations and Warranties of Broker. Broker
hereby represents and warrants that it:
(a)
has
as of the Effective Date and will maintain throughout the Term, at least one
(1)
sales representative and one (1) direct store delivery provider that will
support the Broker’s efforts pursuant to this Agreement; (b) will not
engage in transshipping or otherwise violate the scope of the Territory defined
herein; (c) will not market, distribute or sell any other diet products other
than new items from Company; (d) will help Company protect its trademarked
brands, intellectual property and trade dress from infringement, at Company’s
expense; (e) will market and sell only Products of merchantable quality as
described herein; (f) will be responsible for the actions any subagents;
(g) has as of the Effective Date and will maintain throughout the Term,
sufficient administrative and technical resources and personnel to enable it
to
handle electronic data interfacing, reporting requirements as requested by
Company, undertake recurring sales forecasting as requested by the Company,
product return management and in-store promotional arrangements and
(h) will provide the Company with reasonable access to Broker’s sales
people to “ride with” and to communicate and follow up on specific account
information.
4.2
Mutual Representations and Warranties.
(a)
No
Default/Conflict.
Broker
and Company each represents and warrants to the other that its signing,
delivery, and performance of this Agreement shall not constitute (i) a violation
of any judgment, order, or decree, (ii) a violation of applicable local, state
or federal law, or (iii) a material default under any material contract by
which
it or any of its material assets are bound. Broker and Company each further
represents and warrants to the other that the performance of this Agreement
will
not conflict with or be hindered by any obligation of Broker or Company,
respectively, under any other material agreement, whether in effect as of the
Effective Date or entered into thereafter.
(b)
Authorization.
Broker
and Company each represents and warrants to the other that (i) it has the
requisite corporate power and authority to enter into this Agreement and to
carry out the transactions contemplated by this Agreement; and (ii) the signing,
delivery, and performance of this Agreement and the consummation of the
transactions contemplated by this Agreement have been duly authorized through
requisite corporate action.
(c)
Laws
and Regulations.
Broker
and Company each represents and warrants to the other that (i) it shall comply
with all applicable laws and regulations, relating to the marketing and sale
of
the Products and (ii) it has the state, federal and local licenses and
permits necessary for it to perform under this Agreement and will maintain
such
licenses and permits throughout the Term. Broker further agrees to immediately
notify Company in the event of the material violation of any law, regulation
or
ordinance that arises out of or relates to its marketing, brokerage or sale
of
the Products.
4.3
Disclaimer of Warranty.
EXCEPT
FOR THE WARRANTIES EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, BOTH PARTIES HERETO
DISCLAIM ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT
LIMITATION THE IMPLIED WARRANTIES OF MERCHANTIBILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
5. Commission;
Payment Terms; Warrants.
(a) Commissions;
Payment; Expenses. Company
shall pay Broker a commission of [***] percent [***] of the Net
Receipts received by Company from sales generated in the Territory exclusively
through Broker’s direct and verifiable efforts. Net Receipts shall mean the
gross amount collected by Company from purchasers of Products generated through
Broker’s efforts, less: (i) discounts, refunds, rebates, chargebacks,
retroactive price adjustments and any other allowances which effectively reduce
the net selling price and (ii) actual product returns, credits and allowances;
all as determined by Company in accordance with U.S. GAAP. Commissions shall
be
payable by the 30th
day of
the month following Company’s receipt of Broker’s invoices paid up to the last
day of the previous month. Company may accept or reject orders and may require
Broker to use Company’s forms and procedures. Company shall have no obligations
hereunder to reimburse Broker for expenses incurred by Broker in connection
with
Broker’s performance hereunder. In the event that the Company desires the Broker
to participate in trade shows, the Company shall reimburse Broker for all direct
and indirect costs of the Broker in connection with such participation,
provided, however, that Broker shall obtain prior consent from the Company
for
such expenditures.
(b)
Warrants.
For its
services pursuant to the Agreement, the
Company shall grant to Broker or its designees, as additional
consideration,
warrants
to purchase a maximum of 1,500,000 shares of the Company’s common stock (the
“Warrants”). The Warrants shall be exercisable for a period of seven years from
the date of issuance at a per share exercise price equal to $0.24. In the event
that the Company terminates the Agreement prior to the expiration of the initial
Term due to a material breach committed by Broker or the Broker terminates
the
Agreement, up to 325,000 of the Warrants (whether vested or not) shall be deemed
terminated and be cancelled. In
the
event that this Agreement is terminated by Company for its convenience prior
to
the expiration date of the initial Term, then all Warrants that were not vested
as of such termination date shall be deemed vested and all of the Warrants
shall
remain exercisable for the period stated in the Warrant certificate. In
addition, a maximum of 750,000 Warrants will be deemed cancelled and terminated
in the event the Broker does not satisfy the performance conditions set forth
in
Exhibit
B.
All
Warrants will contain customary provisions relating to the adjustment of the
exercise price and number of shares of Common Stock issuable thereunder in
the
event of stock split, reverse stock split, stock dividend and like events.
The
Warrants shall also include a provision permitting the immediate cancellation
of
the redemption and termination provisions in the event that the Company enters
into an agreement relating to a merger, acquisition or consolidation where
the
Company will not be the surviving entity or for a sale of all or substantially
all of its assets. All Warrants shall include piggyback registration rights,
subject to customary exceptions for registration statements relating to the
Company’s option plans and mergers and acquisitions or post-effective amendments
to any currently effective registration statement.
* |
Certain information on this page
has been
omitted and filed separately with the Commission. Confidential treatment
has been requested with respect to the omitted
portions.
|
2
(c)
Representations
of Broker.
Broker
understands and agrees that the Warrants and the shares of Common Stock issuable
upon exercise of such Warrants (the “Warrant Shares”) shall bear a restrictive
legend and be subject to such restrictions on their transfer as are set forth
in
Rule 144 of the Securities Act of 1933, as amended. Broker represents and
warrants to the Company that (i) it is acquiring the Warrants for its own
account for investment purposes only and not with a view to or for distributing
or reselling such Warrants or the Warrant Shares or any part thereof; (ii)
it is
an “accredited investor” as defined in Rule 501(a) under the Securities Act;
(iii) it has such knowledge, sophistication and experience in business and
financial matters so as to be capable of evaluating the merits and risks of
acquiring the Warrants, has so evaluated the merits and risks of such investment
and is able to bear the economic risk of holding the Warrants and Warrant
Shares; and (iv) is not acquiring the Warrants as a result of any advertisement,
article, notice or other communication published in any media channel or by
general solicitation by a person not previously known to Broker.
6.
Cooperation and Quality Control; Insurance.
(a)
Quality. Broker
shall promptly notify Company of any complaints and/or proceedings in the
Territory relating to the Products. Broker shall provide Company with all
reasonable cooperation and assistance to investigate the same and shall comply
with any reasonable requests made by Company in the course of dealing with
such
complaints or proceedings.
(b)
Reports
and Meetings. Broker
shall report the following information on Company’s forms on the a weekly basis:
depletions, quarterly sales forecasts, annual sales plan review, sales by chain,
number of accounts and promotional program results. Company and Broker agree
to
meet at least once every quarter for the purpose of joint planning. The primary
objective of such meetings shall be to review Broker's performance during the
preceding period, to develop plans to achieve annual sales and distribution
plans and to negotiate the sales and distribution projections to be applied
to
this Agreement for future periods. Neither Broker nor Company shall be required
to bear any costs of travel, room and board, etc., associated with the other
party’s time or travel to attend such meetings.
7.
Confidentiality. Each
party agrees that it will (a) not use any confidential or proprietary
information (“Confidential Information”) of the other party for any purpose not
expressly permitted by this Agreement; (b) hold the other party’s
Confidential Information in confidence using the same standard of care as it
uses to protect its own confidential information of a similar nature, but in
no
event less than reasonable care; (c) not disclose the Confidential
Information of the other to any third party without the other’s prior written
consent, except as expressly permitted under this Agreement; and (d) limit
access to the other’s Confidential Information to those of its employees or
agents having a need to know who are bound by confidentiality obligations at
least as restrictive as those set forth herein. Notwithstanding the foregoing,
either party may make disclosures as required or requested by a court of law
or
any governmental entity or agency, including but not limited to disclosures
required by any regulatory authority, provided that such party provides the
other with reasonable prior notice to enable such party to seek confidential
treatment of such information. The restrictions on the use and disclosure of
Confidential Information shall not apply to any Confidential Information, or
portion thereof, which (i) is or becomes publicly known through no act or
omission of the receiving party; (ii) is lawfully received from a third
party without restriction on disclosure; (iii) is already known by the
receiving party at the time it is disclosed by the disclosing party without
confidentiality restriction, as shown by the receiving party’s written records;
or (iv) is independently developed by the receiving party without reference
to the disclosing party’s Confidential Information. Each party acknowledges that
a breach or threatened breach of this Section
7
would
cause irreparable harm to the non-breaching party, the extent of which would
be
difficult to ascertain. Accordingly, each party agrees that, in addition to
any
other remedies to which a party may be legally entitled, the non-breaching
party
shall have the right to seek immediate injunctive or other equitable relief
in
the event of a breach of this Section
7 by
the
other party or any of its employees or agents.
8.
Trademark License.
(a)
Grant.
Company
is the owner and/or licensee of certain trade names, trademarks and service
marks (collectively, the “Marks”)
which
constitute valuable intellectual property of Company and through substantial
investments by Company have attached to them substantial goodwill and consumer
recognition. The Marks that are the subject of this Agreement are shown in
Exhibit
A
attached
hereto and incorporated by this reference. Company hereby grants to Broker
a
non-exclusive, non-transferable right and license to use the Marks and the
Design Work (defined below) solely in connection with marketing, promotion
and
distribution of the Products in accordance with the terms and conditions set
forth in this Agreement. The Marks will not be used by Broker as the name,
or
any part of any name, of any corporation, partnership or other entity or
proprietorship under which Broker transacts any business or any other product
distributed, sold, marketed or promoted by Broker. Broker agrees not to take
any
action inconsistent with Company’s ownership of or rights to the Marks. Broker
will not adopt, use, or attempt to register any trademarks or trade names that
are confusingly similar to the Marks or in such a way as to create combination
marks with the Marks. Company grants no rights in its Marks other than those
expressly granted in this Section. Broker’s use of the Marks and Design Work is
subject to the control and approval of Company in every respect, and any
unauthorized use shall constitute an infringement of Company’s rights.
3
(b)
Advertisements;
Display.
All
advertising, sales and promotional materials for the Products or other use
of
the Marks or Design Work, whether in written, electronic or other form, shall
be
approved in writing by an authorized representative of Company before release
to
members of the public. Broker agrees to state in appropriate places on all
materials using the Marks that such are trademarks of Company (or its licensors)
and to include the symbol ™ or ® as appropriate. Upon request, Broker will
modify or discontinue any use of the Marks if Company determines that such
use
does not comply with its then-current trademark usage policies and guidelines.
As used herein, “Design Work” means all logos, artwork, photographs, designs,
drawings, sketches and any related writings or other documentation produced
by
or on behalf of the Company to Broker in connection with the
Products.
9.
Proprietary Rights. Broker
agrees that the Company’s Marks, Design Work, Products and Confidential
Information (collectively, the “Company
Property”),
all
intellectual property rights in, to and under such Company Property and all
associated goodwill, are and shall remain the exclusive property of Company
(or
the Company’s licensors). Nothing in this Agreement or in the performance
thereof, or that might otherwise be implied by law, shall operate to grant
Broker any right, title, or interest in or to the Company Property other than
as
specified in the express, limited license grant herein. Broker’s use of the
Company Property shall inure solely to the benefit of Company. Broker shall
not
contest the validity of, by act or omission, jeopardize, or take any action
inconsistent with, rights or goodwill of Company in the Company Property.
10.
Term and Termination.
(a) Term
and Termination.
This
Agreement shall be effective as of the Effective Date and shall remain in force
for an initial term of three (3) years. Thereafter, the Agreement shall be
automatically extended for successive one-year terms unless either party shall
give the other party written notice of its intention not to renew at least
ninety (90) days prior to the expiration of the initial or then-current renewal
term. The initial term together with any renewal term may be referred to herein
as the “Term”. Either party may terminate the Agreement upon written notice in
the event (i) the other party makes any assignment for the benefit of
creditors or has any petition under bankruptcy law filed against it, which
petition is not dismissed within sixty (60) days of such filing, or has a
trustee or receiver appointed for its business or assets, or (ii) the other
party is in material breach of any obligation under this Agreement, which
default is incapable of cure or which, being capable of cure, has not been
cured
within thirty (30) days after receipt of notice of such default. It is agreed
that by Broker that its failure to meet the performance criteria set forth
in
Exhibit B
may
be
deemed by the Company to be a material breach of this Agreement. Notwithstanding
the foregoing, the Company shall have the right to terminate this Agreement
for
its convenience upon 60 days prior written notice.
(b)
Effect
of Termination.
Upon
expiration or any termination, (a) Broker shall immediately discontinue every
use of any Company Marks and Design Work or any language stating or suggestion
directly or indirectly that Broker represents Company or its products; (b)
within ten (10) days after the effective date of such expiration or
termination, Broker shall return to Company (or shall make disposition of as
directed by Company) all property belonging to Company in Broker's possession
or
control (such return or other disposition shall be at Company’s expense); and
(c) the provisions of Section 5(b) with respect to the cancellation of Warrants,
as may be applicable, shall automatically apply without further action on the
part of either party. Broker shall cooperate fully with all reasonable requests
made by Company or any such successor Broker in order to ensure the orderly
transfer of the business related to the Products to such successor Broker.
Broker shall be entitled to receive a commission on all products shipped for
a
period of twelve (12) months after the effective date of termination as long
as
Broker continues to service any ongoing customer. Sections 4, 7, 9, 10, 11,
12,
13 and 14 will survive the expiration or termination of this Agreement for
any
reason.
11.
Mutual Indemnification.
(a)
By
Company.
Company
shall defend, hold harmless and indemnify Broker and its affiliates, and its
and
their respective directors, officers, agents and employees against any loss,
claim, liability, suit, action, or expense (including, without limitation,
court
costs, litigation expenses and attorney fees), relating to or arising out of
any
claim or demand of any kind or nature which any buyer or user of the Products,
or any other person, may make against Broker, based upon or arising out of:
(i)
defects in the Products, including but not limited to claims for alleged
personal injury, for product defects, and breach of warranty or (ii) Company’s
gross negligence or willful misconduct in performing its obligations under
this
Agreement, except to the extent that the separate intervening act of Broker
or
its employees, representatives or agents is the sole and proximate cause of
such
loss, liability or expense.
4
(b)
By
Broker.
Broker
shall defend, hold harmless and indemnify Company and its affiliates, and its
and their respective directors, officers, agents and employees against any
loss,
claim, liability, suit, action, or expense (including, without limitation,
court
costs, litigation expenses and attorney fees), relating to or arising out of
any
claim or demand of any kind or nature which any person may make against Company,
based upon or arising out of: (i) any unauthorized acts of Broker and/or its
employees, representatives or agents or (ii) Broker’s gross negligence or
willful misconduct in the performing its obligations under this Agreement,
except to the extent that the separate intervening act of Company or its
employees, representatives or agents is the sole and proximate cause of such
loss, liability or expense.
(c)
Procedures. The
indemnified party shall: (a) give prompt notice of any claim for which
indemnification is sought to the indemnifying party; (b) grant sole control
of the defense or settlement of the claim or action to the indemnifying party
(except that the indemnified party’s prior written approval will be required for
any settlement that reasonably can be expected to require a material affirmative
obligation of or result in any ongoing material liability to the indemnified
party); and (c) provide reasonable cooperation to the indemnifying party
and, at the indemnifying party’s request and expense, assistance in the defense
or settlement of the claim. Notwithstanding the foregoing, the indemnification
obligations hereunder shall not be relieved hereunder for failure to do the
foregoing, or delay with so doing, unless the indemnifying party is prejudiced
thereby. In addition, the indemnified party may, at its own expense, participate
in its defense of any claim.
12.
Limitation of Liability. Except
for liability arising out of a breach by either party of Section 9
(Confidentiality), or liability arising out of obligations under Section 11
(indemnification) in no event will either party be liable for any consequential,
indirect, exemplary, special or incidental damages, including any lost profits
or costs of procurement of substitute goods, arising out of or relating to
this
Agreement, t even if advised of the possibility of such damages.
13.
Independent Contractor.
Subject
to Broker’s adherence to its obligations as set forth in this Agreement, the
Company shall not exercise any control over the method and manner of Broker’s
performance under this Agreement. This Agreement shall not constitute the
formation of a partnership or joint venture agreement between Broker and Company
and the Broker and Company shall be deemed independent contractors.
14.
General Matters.
(a)
Press
Release.
The
parties shall cooperate with each other so that each party may issue a press
release concerning this Agreement to be released within four (4) business days
after the Effective Date of this Agreement, provided that each party must
approve, in writing, such press release prior to its release. Notwithstanding
the foregoing, however, the Company shall have the full right and ability to
make all disclosures of this Agreement and its relationship with Broker as
it
may be required to do in complying with its obligations under the Securities
and
Exchange Act of 1934, as amended, and the regulations promulgated thereunder
by
the U.S. Securities and Exchange Commission.
(b) Governing
Law, Entire Agreement; Amendments.
This
Agreement has been made in the Commonwealth of Pennsylvania and shall be
construed and governed in accordance with the laws thereof without giving effect
to principles governing conflicts of law. This Agreement shall be the entire
Agreement between the parties on the subject matter hereof and all other
agreements or representation, be they oral or written, shall be void. This
Agreement may not be amended except by a writing signed by both parties and
shall supersede any and all prior discussions between the parties concerning
the
subject matter. No waiver by either party of a right on any one occasion shall
constitute a waiver of such right on another occasion, and all such claimed
waivers must be in writing signed by the party against whom the waiver is
claimed.
(c) Enforceability
of Clauses.
In the
event any portion of this Agreement shall be held illegal, void or ineffective,
the remaining portions hereof shall remain in full force and effect. Subject
to
the consent of both Parties, such consent not to be unreasonably withheld,
if
any of the terms or provisions of this Agreement are in conflict with any
applicable statute or rule of law, then such terms or provisions shall be deemed
inoperative to the extent that they may conflict therewith and shall be deemed
to be modified to conform with such statute or rule of law.
(d) Miscellaneous.
All
notices shall be effective as of the date mailed or telecopied to the address
and telecopier number set forth below. This Agreement may be signed in
counterparts, which together shall constitute one Agreement. Broker may not
assign this Agreement or its rights or obligations hereunder without the express
prior written consent of Company. This Agreement shall be binding upon the
successors and assigns of each of the parties hereto.
5
IN
WITNESS WHEREOF, both parties have negotiated this Agreement freely and in
good
faith with the assistance of their counsel, acknowledge having read all of
the
terms of the Agreement and the exhibits, fully understand that they are each
obligated to fulfill the promises they have made to each other and have caused
their respective duly authorized representatives to execute this Agreement
as of
the Effective Date.
By:
_______________________
Xxxxxx
X. XxXxxxxx,
Chief
Executive Officer and President
|
GelTech
Sales LLC
By:_________________________
Name:
Xxxxxxx Xxxxxx
Title:
Chairman
|
Address
for Notice:
Xxxxx
Xxxx Xxxxx, Xxxxx 000
Xxxx
Xxxxxx, XX 00000
Attention:
Chief Executive Officer
|
Address
for Notice:
000
X.X. 0xx
Xxxxxx
Xxxxxxxxxx
Xxxxx, XX 00000
Attention:
President
|
6
EXHIBIT
A
PRODUCTS,
TERRITORY, EXCLUSIVITY AND TERMS OF SALE
1. Products:
Skinny
Water, Skinny on the Go
Company
may at its sole discretion reformulate any of the Products and or flavors or
discontinue them, so long as all flavors are not discontinued.
2. Prices:
Attached
as Schedule A-1 is Company’s current price list for the Products. Company may
amend this price list upon 30 days’ written notice to Broker.
3. Territory:
United
State of America and all territories covered by the North American Free Trade
Agreement.
4. Exclusivity:
Except
as set forth below, the Territory shall be exclusive.
5. Exceptions
to Exclusivity:
Notwithstanding paragraph 4 of this Exhibit A, Company may market, sell,
distribute and exploit the Products in the Territory in accordance with the
following:
(a)
Failure to Satisfy Targets. In
the
event that the Broker is not successful in achieving the Sales Goals set forth
on Exhibit B, the party’s agree that the Company may, at its option, either
terminate this Agreement for breach or that the exclusive nature of Broker’s
hereunder shall immediately terminate.
(b)
National/Regional Accounts. Company
shall have the full right to sell Product to any National or Regional Account
and the Broker shall give the Company its fullest cooperation to assist the
Company or its designated Company to supply Product to the National or Regional
Account in question and to support any marketing or promotional activities
initiated or endorsed by the Company for that National or Regional Account.
Such
accounts will also include accounts that (i) require warehouse deliveries
in lieu of direct-store-delivery or (ii) only permit deliveries from
designated Brokers. Provided these accounts do not re-sell on a wholesale basis,
the Company will service these accounts exclusively and directly, without
obligation to Broker.
(c)
New York State. Broker
acknowledges that the Company currently has a contractual relationship for
the
distribution of its Skinny Water with an independent beverage distributor
covering the following counties; New York, Kings, Queens, Bronx, Richmond,
Nassau and Suffolk. Broker agrees not to take any action which may result in
the
Company being held in breach of such other agreement or otherwise liable for
any
penalties or damages thereunder.
(d)
Promotional Accounts.
Promotional Accounts shall be accounts targeted primarily for their strong
market presence. Company shall notify Broker of all Promotional Accounts and
Broker shall not be entitled to any commission for any sales to Promotional
Accounts located within the Territory. The parties agree that the following
Promotional Accounts shall be deemed to be the exclusive list of accounts that
satisfy this provision unless amended by a mutually executed supplement:
Target.
(e) Non
Store Accounts. Company
expressly reserves unto itself and/or its agents the right to sell Products
within the Territory to all accounts that will not accept store delivery,
inclusive of internet fulfillment services and electronic media
accounts.
(f)
In the
event that Broker does not carry all of Company’s Products, Company has the
right to assign a second Broker in the same area for the Product(s) not carried
by Broker.
Initialed: __________
[Company] ___________ [Broker]
Dated:
February 27, 2007
7
SCHEDULE
A-1
Price
List
[to
be inserted]
8
EXHIBIT
B
SALES
GOALS AND PROMOTIONAL TERMS
(1) SALES
GOALS
Product
Name
|
Period
|
Target
Number of Stores
|
||
Skinny
Water, Skinny on the
Go
and other Products
covered
by this Agreement
|
24
months from the date of product
availability
for retail distribution.
|
20,000
|
During
the Term of the Agreement, the parties agree to meet prior to the anniversary
date to establish sales goals for the upcoming year. Sales goals for periods
subsequent to those set forth in the above table will be determined based
previous years sales and distribution performance plus a reasonable increase
or
decrease taking into consideration previous years trends, market conditions
and
new opportunities.
(2) PROMOTIONS,
POINT OF SALE MATERIALS, SAMPLES AND SERVICES
Company
shall bear the costs of all Product samples used in the Territory. Broker and
Company shall pay the cost of any discount and incentive programs. Company
will
pay the cost of all promotional merchandise including permanent signage, and
display furniture; such items to be valued at Company’s actual cost. Broker
shall provide no less a service to its customers who purchase the Products
than
it does for other products which it sells and shall maintain an appropriate
sales force, delivery system and take other appropriate measures to increase
sales and distribution of the Products in the Territory.
All
paper
point-of-sale and promotional materials produced by Company shall be made
available to Broker at no cost to Broker in such amounts and at such times
as
Company determines, in its sole discretion. Broker may not, without Company's
prior written consent, create or procure the creation of any advertising or
promotional materials for the Products and Broker shall at Company’s request
assign or procure the assignment of copyright and other intellectual property
rights in any such material. Broker's and Company’s marketing activity, which
includes incentive programs, local event participation, promotional merchandise,
samples, advertising or special promotional programs, will be the subject of
separate agreements between Company and Broker made from time to time. Broker
will, prior to incurring an expense for which it expects reimbursement from
Company, in whole or in part, obtain Company’s prior written approval.
Initialed: __________
[Company] ___________ [Broker]
Dated:
February 27, 2007
9