Broker Representation Agreement - Morgan & Sampson Pacific and Ultrafem Inc.
BROKER REPRESENTATION AGREEMENT
AGREEMENT made this 29th day of April by and between Morgan & Sampson Pacific,
with its principal place of business 10572 Calle Lee, Los Alamitos, CA 90720
(hereinafter referred to as the "Broker"), and Ultrafem with its principal place
of business located at 500 Fifth Avenue, Suite 3620, New York, NY (hereinafter
referred to as "Ultrafem").
IT IS NOTED THAT MERIDIAN CONSULTING GROUP (the Consultant) has been retained by
Ultrafem to establish and manage a Broker selling network for the Company, which
has been approved in advance by the Company. The Consultant is responsible for
executing the project and reporting results back to the Company.
In consideration of the mutual covenants herein contained, the parties agree as
follows:
AREA OF RESPONSIBILITY
1) BROKER is hereby appointed as a non-exclusive sales representative of
Ultrafem for the sale of INSTEAD -Registered Trademark- products
("Products") to only those customers ("Customers") listed in Exhibit A.
The products or customers may be amended from time to time by Ultrafem in
accordance with Paragraph 8 below.
COMMISSION
2) A base Brokerage commission ("Commission") will be earned by BROKER on Net
Invoice Amount issued by Ultrafem to those Customers listed in Exhibit A,
subject to adjustments as explained in Paragraph 8 below. Net Invoice
Amount ("Net Invoice Amount") shall mean the price charged by Ultrafem to
its Customers for the Products based on the invoice price less all
applicable discounts and allowances granted off invoice by Ultrafem and
less credit memos issued for returned Products. The amount of commission
will be paid as set forth in Exhibit B.
3) Quota ("Quota") shall mean that dollar amount set by Ultrafem during the
fiscal year ending June 30. The Quota for each succeeding year shall be
set by Ultrafem in its sole discretion within sixty (60) days of the start
of that year. The Quota shall be used to assist Ultrafem in calculating
bonus brokerage Commissions as specified in Exhibit B.
4) Ultrafem reserves the right to adjust the Commission paid to BROKER to
reflect a charge back of the applicable Commission rate in the event
Ultrafem accepts the Products returned for credit or refund by any
Customer.
5) BROKER shall use its best efforts to solicit orders for, obtain maximum
distribution of, and otherwise implement programs for Ultrafem in
compliance with the policies established by Ultrafem.
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6) Upon any changes in the Products or Customers as provided for in paragraph
8, the Commission will be paid for by Ultrafem as follows:
a) For all orders secured by BROKER and received and shipped by Ultrafem
prior to the effective date of the change, the full commission will be
paid.
b) For all orders secured by BROKER and received by Ultrafem prior to the
effective date of the change, but shipped thereafter, the full
Commission will be paid.
c) For all orders received by Ultrafem after the effective date of the
change, no Commission will be paid.
7) Subject to the provisions of Paragraph 8 hereof, Ultrafem will pay BROKER a
Commission for the Net Invoice Amount of orders secured by BROKER from
Customers and which are accepted and shipped by Ultrafem in accordance with
the schedule of Commissions set forth in Exhibit B. Ultrafem shall not be
obligated to pay any Commission for any shipment of Products refused by
Customers. In addition, Ultrafem shall not be obligated to pay Commission
to BROKER in the event that Ultrafem does not ship or deliver any order.
The Commission shall be deemed earned on or before the twenty-fifth (25th)
of each calendar month, based on orders shipped by Ultrafem during the
preceding calendar months. Ultrafem agrees to pay BROKER within five (5)
days of such payment being earned. Ultrafem reserves the right to change
from time to time the manner in which Commission is paid upon sixty (60)
days prior written notice to BROKER of such change. In such event, the
change will be in the form of a revised Exhibit B and render the replaced
Exhibit B null and void as of the effective date of the Exhibit. From time
to time, Ultrafem may conduct contests or establish incentive programs
applicable to BROKER for which BROKER may be eligible for additional
Commissions.
8) Ultrafem reserves the unilateral right to change the Products or Customer
list (Exhibit A) upon thirty (30), days' prior written notice to BROKER.
Such notice shall be in the form of a revised Exhibit A and/or Exhibit B
which shall render all prior exhibits null and void as of the effective
date shown on the revised Exhibit.
9) Ultrafem reserves the right to approve any customers solicited by BROKER.
BROKER will submit to Ultrafem such sales and market information reports as
Ultrafem may from time to time reasonably request.
TERM
10) This Agreement shall continue in full force and effect until terminated by
either party upon thirty (30) days prior written notice sent to the other
party at its principal place of business set forth above. Such termination
shall be deemed effective on the thirtieth (30th) day following the date of
mailing of the notice. In the event of bankruptcy, insolvency,
receivership or other failure of BROKER to perform its obligations
hereunder, Ultrafem may, at its opinion, immediately terminate this
Agreement without prior written notice.
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11) In the event of the termination of this Agreement, the Commission shall be
paid on (i) products shipped by Ultrafem through the effective termination
date and (ii) on products shipped by Ultrafem provided that the orders were
written by BROKER for such products or approved by Ultrafem prior to
effective termination date.
12) BROKER will be solely responsible for all expenses incurred in the
performance of its duties and services as a broker. The only compensation
payable to BROKER pursuant to this Agreement shall be the Commission
provided for herein.
13) Ultrafem shall furnish BROKER with up-to-date price lists, terms of sales,
advertising and promotion materials, and selling samples of the type, form,
quantity and at intervals to be determined in the sole discretion of
Ultrafem.
14) Ultrafem shall not be required to honor orders solicited by BROKER from
customers not on Exhibit A, and shall have no obligation to pay any
Commission to BROKER for orders from said customers.
15) BROKER shall only solicit orders at the prices and on the terms of sales
established by Ultrafem from time to time. All orders obtained by BROKER
are subject to acceptance by Ultrafem.
16) BROKER agrees that it will not advertise the name Ultrafem and INSTEAD, the
name of any affiliate or subsidiary or trademark of Ultrafem or otherwise
advertise or promote the Products without the prior written approval of
Ultrafem.
CONFLICTS
17) BROKER shall not solicit orders for or sell products competitive with the
Products without Ultrafem's prior written approval, which may be given in
Ultrafem's sole and absolute discretion.
CONFIDENTIALITY
18) BROKER shall, during the term of this Agreement (including following any
termination or expiration), retain in confidence and refrain from using for
(Broker Name) benefit or the benefit of any third party, any and all
proprietary information, price lists, sales, advertising, promotional
policies and plans and/or data or other confidential information (as
defined in the confidentiality agreement annexed as Exhibit 3, hereto which
agreement is hereby incorporated herein reference).
BROKER shall limit disclosure of Confidential Information received
hereunder to only those of its directors, officers and employees who are
directly involved in the sale of the products and have a need to know such
information for the proper performance of duties. BROKER shall advise its
officers, directors and employees upon disclosure to them of any
Confidential Information of the Proprietary nature thereof and the terms
and conditions of this Agreement and shall use all reasonable safeguards to
prevent unauthorized disclosure by such directors, officers and employees.
19) Upon the termination of this Agreement, BROKER will promptly return all
literature, brochures, samples and any and all other materials furnished to
BROKER by Ultrafem.
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MISCELLANEOUS
20) BROKER shall act hereunder as an independent contractor and shall not be,
or represent that it or its employees are agents of Ultrafem for any
purpose whatsoever. BROKER shall have no authority to enter into, modify
or terminate any agreement, price lists or terms and conditions of sale of
the Products.
21) BROKER represents and warrants that it will comply with all applicable
laws, rules and regulations in the performance of the services rendered
hereunder, and that it will be acting for the benefit of Ultrafem only and
that it will not be acting for or on behalf of any party from whom orders
for the Products are solicited or taken; that it is not and will not be
subject to the direct or indirect interest in or any direct or indirect
control over any such party; and that no part of the Commission or anything
of value to be paid to BROKER hereunder will be paid directly or indirectly
or assigned to any such party. BROKER agrees to indemnify and hold
Ultrafem harmless from and against any and all claims, losses, liabilities
or expenses, including attorney's fees, in any way caused by a breach of
BROKER representations and warranties or the obligations of BROKER
specified in this Agreement.
22) Any notices required hereunder shall be in writing and shall be sent to the
respective addresses of the party to whom the notice is given by either
telex, facsimile, cable or Federal Express. The date of the mailing or
confirmed transmission of the notice shall be deemed the date of giving
notice.
23) This Agreement shall, in all respects, be construed, interpreted and
governed by the laws of the State of New York, without regard to any New
York conflict of laws rules. The state and federal courts in New York are
the agreed upon forum for the resolution of all disputes hereunder, and
BROKER and its officers and employees hereby consent to the jurisdiction
and venue of the aforesaid courts for the purpose of resolving all such
disputes and to the service of process by registered mail, return receipt
requested or any other manner consistent with federal or New York law.
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24) This Agreement shall not be assigned by BROKER. This Agreement (together
with the confidentiality agreement annexed here as Exhibit C hereto)
contains the entire agreement between the parties pertaining to the subject
matter hereof, and may not be modified or altered in any manner except by
an instrument in writing signed by or on behalf of the party to be charged.
The waiver by either party of any provision of this Agreement shall not be
deemed to constitute a waiver of any other provision. The invalidity of
any provision of this Agreement shall not impair the validity of any other
provision.
IN WITNESS WHEREOF, the parties have executed this Agreement the day and
year first written above.
MORGAN & SAMPSON ULTRAFEM
By: /s/ DANIEL B. MORGAN By: /s/ TONYA G. HINCH
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Title: Executive Vice President Title: Sr. VP Mkg. & Sales
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Date: 5/19/96 Date: 5/17/96
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MERIDIAN CONSULTING GROUP
By: /s/ GENE J. MORIARTY
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Title: V.P. Sales
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Date: 5/2/96
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ADDENDUM TO
ULTRAFEM
REPRESENTATIVE AGREEMENT
This Addendum to the Agreement made effective April 29, 1996, by and between
ULTRAFEM, (hereinafter called "ULTRAFEM") and Morgan & Sampson Pacific
(hereinafter called "REPRESENTATIVE").
1. INDEMNIFICATION: ULTRAFEM shall be solely responsible for the quality,
efficacy, safety and fitness of PRODUCTS sold pursuant to the
REPRESENTATIVE Agreement, as well as for its patents and trademarks.
ULTRAFEM shall save and hold harmless REPRESENTATIVE, its agents and
employees from and against all claims, losses and liability relating to the
quality, efficacy, safety and fitness of the PRODUCTS, as well as use of
patents and trademarks related thereto, which arise out of or are alleged
to have arisen out of the sale, distribution or use of the PRODUCTS,
provided such claim does not involve the negligent or wrongful acts or
omissions of the REPRESENTATIVE, its agents and employees for reason other
than mere participation in the chain of sale or distribution of the
PRODUCTS. Such indemnification shall include all claims, losses and
liabilities for costs, fees and reasonable attorney's expense. The
provisions of this section shall survive termination of the Agreement or
extensions thereof, unless otherwise agreed to by the parties in a writing
which makes specific reference to said sections of the Agreement.
2. INSURANCE: At all times during the term or any extension hereof,
ULTRAFEM shall maintain comprehensive general liability insurance protecting
ULTRAFEM and the REPRESENTATIVE against loss by reason of product liability
claims imposed upon REPRESENTATIVE in connection with the discharge of its
duties hereunder in an amount not less than $1,000,000 in the aggregate. So
long as REPRESENTATIVE shall act hereunder, ULTRAFEM shall provide
REPRESENTATIVE with a Certificate of Additional Insured-Vendors Endorsement (CG-
20151188) designating "Morgan & Sampson Pacific" as an additional insured-
vendor, and providing that ten (10)days' written notice shall be given to
REPRESENTATIVE prior to cancellation, modification, or expiration of any of the
terms of coverage of such policy.
DATED: 5/17/96 ULTRAFEM
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BY: /s/ TONYA G. HINCH
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DATED: 5/14/96 MORGAN & SAMPSON PACIFIC
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BY: /s/ DANIEL B. MORGAN
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DATED: 5/15/96 MERIDIAN CONSULTING GROUP
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BY: /s/ JOHN FINDER
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