EXH10-35
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.
X-000 XxxxXxx Xxxxxx Xxxxx 00
Xxxxxxxx Xxxx, XX 00000
TEL: 000-000-0000 FAX: 3113
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 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 deemed, 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/Representative 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 through a order by the Distributor/Representative or
through a direct order within territory and class of customers
set forth in exhibit A section 2 &3.
The Distributor/Representative shall be entitle 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 Distributor/Representative or
through 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 deemed 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 l5(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.
6. OTHER OBLIGATIONS OF THE DISTRIBUTOR/REPRESENTATIVE
The Distributor/Representative shall:
(a) Use his best efforts 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 competitive 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 thereby forfeit all
right and claim to any compensation accrued, and any
termination 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/Representative 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.
(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 hereinbefore 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
strictestconfidence 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 publicly
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 (3) 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's 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
IN WITNESS WHEREOF, the parties hereto have set their hands and seals
this day and year first above written.
FIBERCORE, INC.
Xxxxxxx XxXxxx, Vice President
By:______________________________(L.S.) Date: November 1, 1995
Attest:____________________________
TECHMAN INTERNATION CORP.
Xx. X. Xxxxxx Xxxx, Chairman/CEO
By:______________________________(L.S.) Date: November 1, 1995
Attest:____________________________
EXHIBIT A
to the
DISTRIBUTOR AGREEMENT ("AGREEMENT")
between
FIBERCORE, INC.
and
TECHMAN INTERNATIONAL CORP.
Effective Date: 1st of November, 1995
Section l. 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
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 Exporters
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.
Xxxxxxx XxXxxx, Vice President
By:______________________________(L.S.) Date: November 1, 1995
Attest:____________________________
TECHMAN INTERNATION CORP.
Xx. X. Xxxxxx Xxxx, Chairman/CEO
By:______________________________(L.S.) Date: November 1, 1995
Attest:____________________________
November 1, 1995
Xx. X. Xxxxxx Awan
Chairman/CEO
Techman International Corporation, Inc.
Techman Center, Xxxxx 00
Xxxxxxxx Xxxx, Xxxx. 00000-0000
Subject: Compensation in the form of FiberCore Shares
REF: Our Distributor Agreement of November 1, 1995 (Attached)
Dear Xx. Xxxx,
This is to advise you that FiberCore, because of existing cash flow constraints,
is not in a position to pay cash for the earned commissions in connection with
the Distributor Agreement signed earlier today.
We are prepared to issue FiberCore shares to you for the full value of such
earned commissions. Please note that because of your status as the sole owner of
Techman International Corporation, these shares can be issued to you directly or
to your company.
Please indicate your approval of this arrangement by signing below, where
indicated. This letter wil be an integral supplement to the Distributor
Agreement.
Yours truly,
For FiberCore, Inc.
G. Xxxxxxx XxXxxx
Corporate Secretary
Accepted :___________________________
For Techman International Corporation
Xx. X. Xxxxxx Xxxx, Chairman/CEO
