DISTRIBUTOR AGREEMENT
THIS AGREEMENT, Entered into as of the 1st day of November, 1995 by and between
FiberCore, a corporation organized and existing under the laws of the State of
Nevada, and having its principal place of business in Sturbridge, Massachusetts,
hereinafter referred to as the "Company" and
TechMan International Corp.
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X-000 XxxxXxx Xxxxxx Xxxxx 00
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Xxxxxxxx Xxxx, XX 00000
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TEL. 000-000-0000 FAX: 3113
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hereinafter referred to as the "Distributor/Representative"
IN CONSIDERATION of the promises and of the mutual covenants and agreements
hereinafter set forth, the parties to this Agreement hereby covenant and agree
as follows:
1. APPOINTMENT AS DISTRIBUTOR - The Company hereby appoints the Distributor to
solicit orders for the purchase of its products enumerated in Section 1 of
the attached Exhibit A within the Territory described in Section 2 of the
attached Exhibit A, from the class of customers set forth in Section 3 of
the attached Exhibit A; and the Representative hereby accepts such
appointment upon and subject to the terms and conditions herein contained.
2. LIMITED AUTHORITY - DISTRIBUTOR/REPRESENTATIVE-
(a) The Distributor/Representative shall solicit orders at such prices
and terms as may be established and set forth in quotations offered
and released by the Company from time to time.
(b) The Distributor/Representative shall have no authority to accept
orders on behalf of the Company or to commit said Company to the sale
or delivery of any products and all solicitations of orders shall be
made with the understanding that they are subject to acceptance by
the Company.
(c) The Distributor/Representative shall make only such representations
as to quality capacity, expected life or duration, and similar
representations, with respect to the products on which orders may be
solicited only in accordance with the Company's
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policies and/or sales terms and conditions in effect, or as may be
authorized in writing by the Company from time to time.
3. ACCEPTANCE OF ORDERS - COMPANY DISCRETION -
(a) The Company reserves the right to approve or disapprove, and to
accept or reject any such orders for any reason whatsoever, upon
receipt of such orders, and no order shall be effective unless and
until it is accepted in writing.
(b) The disapproval or rejection of any order for any reason whatsoever
shall not vest any right in the Distributor/Representative with
respect to compensation, and the Distributor/Representative's right
to compensation shall be governed by the particular provisions
elsewhere in this Agreement.
4. THE TERMS AND CONDITIONS FOR COMPENSATION -
(a) The Distributor/Representative shall be entitled to a rate of
commission designated in Exhibit A, Section 4 which shall be computed
on the net selling price, hereinafter defined, under the terms and
conditions hereinafter set forth. Such commissions shall be
compensated in full for the services of the
Distributor/Representative.
(b) Subject to paragraphs 1 and 2 and subparagraph (d) herein, the
Distributor/Repesentative shall be entitled to the designated rate of
commission on all sales consummated, as a result of the solicitations
of orders by the Distributor/Representative on products enumerated in
the attached Exhibit A, within the Territory set forth in said
Exhibit A, and from the class of customers of which the
Distributor/Representative is entitled to solicit, as indicated in
said Exhibit A.
(c) Subject to paragraphs 1 and 2 and subparagraph (d), the
Distributor/Representative shall also be entitled to the designated
rate of commission on all sales consummated as a result of direct
orders received by the Company on products enumerated in the attached
Exhibit A, within the Territory set forth in said Exhibit A, from the
class of customers of which the Distributor/Representative is
entitled to solicit, as indicated in said Exhibit A.
(d) The Distributor/Representative shall be entitled to the rate of
commission designated in Exhibit A section 4 for order of erection of
a new plant and innovation of already existing plant thru a order by
the Distributor/Representative or thru a direct order within
territory and class of customers set forth in Exhibit A Section 2&3.
The Distributor/Representative shall be entitled to the rate of
commission designated in Exhibit A section 4 for the orders of
Telecommunications equipment supplied by the company or other
companies through orders by the
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Distributor/Representative or thru a direct order within the
territory and class of customers set forth in Exhibit A section 2&3.
(e) Should more than one independent Distributor/Representative of the
Company be involved in sales or cause a sale to be concluded because
of his efforts in territory of another, the Company shall have the
right to decide on the split of the commission between the
Distributor/Representatives involved.
(f) All commissions shall be due and payable no later than thirty (30)
days after actual receipt of payments by the Company for the
products sold.
(g) For the purpose of this Agreement, the term "net selling price" as
used in subparagraph (a) above, is defined as the gross selling price
of the products stated in the attached Exhibit A, reduced by the
amounts of discounts, allowances, cancellations, returns, packing
charges, shipping charges, taxes, duties, or service charges of any
nature whatsoever.
(h) It is further understood and agreed that competition or other
circumstances beyond the control of the Company or of the
Distributor/Representative may make it advisable and desirable to
reduce the commissions payable to the Distributor/Representatives. In
such event, the Company and the Distributor/Representative may, by
mutual agreement in writing, reduce the amount of commission payable
on any order without affecting the provisions of the Agreement in any
other way.
(i) It is further understood and agreed between the Company and the
Distributor/Representative that no commission or other payment,
applicable to orders accepted by the Company after the date of
termination of this Agreement, shall be due to the
Distributor/Representative. Commissions applicable to orders accepted
by the Company prior to the termination of the Agreement shall be
paid to the Distributor/Representative after termination of this
Agreement. Notwithstanding the above no payment of commissions shall
be made after the effective date of termination if the termination
was caused by a breach of this Agreement of the part of the
Distributor/Representative, or for just cause; as defined in
paragraph 15(c).
5. BILLING OF PURCHASERS - All products for which orders are accepted by the
Company will be shipped and billed by the Company directly to the
purchaser. All payments shall be made directly to the Company. The
Distributor/Representative shall have no authority to make collections from
purchasers, but shall assist the Company upon its request in the collection
of over-due accounts by making available to the Company data regarding such
purchasers to which the Distributor/Representative may reasonably have
access.
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6. OTHER OBLIGATIONS OF THE DISTRIBUTOR/REPRESENTATIVE - The
Distributor/Representative shall:
(a) Use his best effort to promote the sale of the Company's products
within his assigned territory.
(b) Handle no other products which in the opinion of the Company are
competititive with those of the Company without obtaining the prior
written consent of the Company, nor place itself in a position of
adverse interest or divided loyalty. In the event the
Distributor/Representative should take on a line which in the
Company's opinion is competitive to its products, without previously
obtaining the Company's consent, the Distributor/Representative will
discontinue the handling of such competitive line upon receiving due
notice from the Company. If the Distributor/Representative fails to
discontinue the handling of such competitive line within five (5)
days after such notification, or such longer period as may be granted
by the Company, he shall forfeit all right and claim to any
compensation accrued, and any terminations as a result of such
conflict of interest shall be considered a termination for just
cause. The Company shall be the sole judge as to whether a conflict
of interest exists. The Distributor/Representatives shall disclose to
the Company any new agreement it has entered with another party for
the solicitation of orders, or as a factory representative or sales
agent for products similar in design or functional use to that made
by the Company.
The provisions of this subparagraph shall also apply if the
Distributor/Representative or any of his agents or employees secures
an interest in excess of one percent (1%) in a company which, in the
Company's opinion, constitutes a conflict of interest.
(c) Furnish the Company, upon request, with all information that said
Distributor/Representative may from time to time acquire relative to
the credit rating and financial position of any of the
Distributor/Representative's accounts for the Company's products.
(d) Furnish to the Company upon request, appropriate reports to the sales
made pursuant to this Agreement, and any other information relating
to the operation of this Agreement, including but not limited to the
market conditions for the products of the Company within the
Territory governed by this Agreement.
7. OBLIGATIONS OF THE COMPANY - The Company shall from time to time:
(a) Deliver the Distributor/Representative samples of its products in
such an amount and of such a character as it may deem fit.
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(b) Designate in writing the selling prices at which its said products
may be offered for sale by the Representative.
(c) Supply the Representative with its current catalogs and regular
literature without charge.
8. EFFECT ON UNWRITTEN AND UNSIGNED AGREEMENTS - No agreement or other
understanding in any way modifying the conditions of this Agreement shall
be binding upon the Company or the Distributor/Representative unless made
in writing and signed by them or their authorized representatives.
9. GENERAL RELATIONSHIP-
(a) The Distributor/Representative agrees that in all matters relating to
this Agreement he shall be acting as an independent contractor; that
neither the Distributor/Representative nor his employees are
employees of the Company under the meaning or application of any
Federal or State Unemployment Insurance Laws, or Old Age Benefit Law,
or other Social Security Laws, or any Workmen's Compensation or
Industrial Law, or otherwise; and that the Distributor/Representative
agrees to assume all liabilities or obligations imposed by any one or
more of such laws, with respect to his employees in the performance
of this Agreement.
(b) The Distributor/Representative shall not have any authority to assume
or create any obligation, express or implied, on behalf of the
Company, and said Distributor/Representative shall have no authority
to represent the Company as agent, employee, or in any capacity other
than as hereinafter set forth. He shall conduct all of his business
in his own name and not in the name of the Company.
10. ASSIGNMENT - This Agreement constitutes a personal contract which may not
be transferred or assigned by the Distributor/Representative without the
prior written consent of the Company. This contract shall be binding upon
the successors or assignees of the Company.
11. CONFIDENTIAL INFORMATION - In addition to compliance by the
Distributor/Representative with the obligations imposed by the U.S.
Espionage Law, Sabotage Law and other U.S. Government security laws, or
Industrial Security Regulations (1) The Distributor/Representative agrees
to keep in strictest confidence all information identified as secret or
confidential, or which, from the circumstances, in good faith and good
conscience ought to be treated as confidential, relating to the products
methods of manufacture or trade secrets or secret processes, price lists,
customer lists, or other information of the business affairs of the Company
which the Distributor/Representative may acquire in connection with or as a
result of the performance of this Agreement; (2) The
Distributor/Representative further agrees that, without prior written
consent of the Company, he will neither use, nor publish,
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communicate, divulge or disclose to unauthorized persons any such
information during the period of this Agreement or at any time subsequent
thereto; (3) The Distributor/Representative shall return all such
confidential information to the Company upon termination of this Agreement.
12. TERMINATION -
(a) This Agreement shall become effective as of the day and year first
above written, and shall be subject to the right of either party to
terminate the Agreement at any time by serving upon the other party
personally or by registered mail, written notice of such termination
at least thirty (30) days in advance of the intended termination date
of this Agreement, at which time all provisions of this agreement as
to sample, accounting and commission shall be complied with.
(b) Notwithstanding the above subparagraph, this Agreement may be
terminated at once by either party, without the required advance
notice, if one of the parties to this Agreement becomes involved in
bankruptcy, insolvency, or arrangement proceedings, or if either
party has committed a breach of this Agreement.
(c) This Agreement shall terminate at once without the required advance
notice, upon the Distributor/Representatives death. The Company
reserves the right to terminate this Agreement at once without the
required advance notice, if there is just cause to do so. Just cause
shall include acts of the Distributor/Representative that are
dishonest, fraudulent, a conflict of interest, or other acts of
misconduct of the Distributor/Representative. Termination at once,
under subparagraphs (b) and (c) shall be effectuated by serving upon
the Distributor/Representative either personally or by registered
mail, written notice of the termination to be effective immediately
except that no such written notice of termination shall be required
in the event of the death of the Distributor/Representative and as of
the date of such death, the Agreement shall automatically terminate.
13. ENTIRE CONTRACT - The Agreement contains all the terms and conditions
agreed upon by the parties and constitutes the only Agreement in
force and effect between the parties. Any and all Agreements for
solicitation of orders, as amended, modified or supplemented,
heretofore entered into between the parties hereto are hereby
canceled and terminated. This Agreement shall be construed in
accordance with the laws of the Commonwealth of Massachusetts.
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IN WITNESS WHEREOF, the parties hereto have set their hands and seals this
day and year first above written.
FIBERCORE, INC.
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Xxxxxxx XxXxxx, Vice President
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By: /s/ Xxxxxxx Xxxxxx (L.S.) Nov. 1, 1995
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Attest: /s/ Xxxxxxx X. Xxxxxxxxx
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TECHMAN INTERNATIONAL CORP.
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Xx. X. Xxxxxx Xxxx Chairman/CEO
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By: /s/ Xx. X. Xxxxxx Awan (L.S.) Nov. 1, 1995
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Attest: /s/ Xxxxxxx X. Xxxxxxxxx
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EXHIBIT A
to the
DISTRIBUTOR AGREEMENT ("AGREEMENT")
between
FIBERCORE, INC.
and
TECHMAN INTERNATIONAL CORP.
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Effective Date: 1st of November 1995
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Section 1. PRODUCTS SUBJECT TO AGREEMENT COMMISSION
Optical Fiber & Preform
Section 2. TERRITORY SUBJECT TO AGREEMENT - The Distributor/Representative
shall solicit orders in the following Territory only:
Unrestricted worldwide where FiberCore is not represented.
Section 3. CLASS OF CUSTOMERS - The Distributor/Representative shall
solicit orders from the following class of customers only:
Telecomm, CATV, LAN, MAN, WAN companies; OEM's, commercial
accounts, state and governmental agencies.
Section 4. RATE OF COMMISSION -
To be negotiated on case by case
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Section 5. COMPANY RESERVATION - The Company reserves to itself the
exclusive right to solicit the following customers directly
except customers in the Territory mentioned in Exhibit A Sec. 2
& 3.
A. All Exportors
B. All businesses in which delivery is to be made outside the United
States and its possessions.
C. All Distributors - Unless introduced by Distributor/Representatives
D. Any other businesses, groups or organizations not specifically
enumerated in Section 3 of this Exhibit A.
FIBERCORE, INC.
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Vice President, Xxxxxxx XxXxxx
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By: /s/ Xxxxxxx Xxxxxx (L.S.) Nov.1,1995
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Attest: /s/ Xxxxxxx X. Xxxxxxxxx
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TECHMAN INTERNATIONAL CORP.
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Chairman/CEO
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By: /s/ Xx. X. Xxxxxx Xxxx (L.S.) Nov. 1, 1995
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Attest: /s/ Xxxxxxx X. Xxxxxxxxx
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