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Exhibit 10.21
AGENCY AGREEMENT
MONOGRAM INTERNATIONAL INC.,
MONOGRAM PRODUCTS (H.K.) LIMITED
AND
TAI NAM INDUSTRIAL COMPANY LIMITED
This agency agreement dated entered into between Tai Nam Industrial Company
Limited (hereinafter referred to as the Agent) of Units A&B, 3rd Floor, CDW
Building, 388 Castle Peak Road, Tsuen Wan, N.T., Hong Kong and Monogram
International Inc., and Monogram Products (H.K.) Limited whose address is
situated at 12395, 75th Street North, Largo, Florida 33773-3090, U.S.A. and
Units A&B, 3rd Floor, CDW Building, 388 Castle Peak Road, Tsuen Wan, N.T., Hong
Kong, respectively (hereinafter collectively referred to as the Company).
Both parties agree to the following terms and conditions of the agreement:
WHEREAS, the Company and the Agent entered into this Agency Agreement pursuant
to which the Agent, among other things, agreed to (i) handle all of the
Company's purchase orders for its products, (ii) handle all of the Company's
shipping documents, (iii) clear all of the Company's letters of credit and bills
to Monogram Products (H.K.) Limited and payments, (iv) serve as a liaison
between the Company and its manufacturers and vendors, and (v) ensure the
quality of goods purchased for the Company.
NOW, THEREFORE, in consideration of the following and other goods and valuable
consideration received to date, the Parties hereby agree as follows:
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1. The Agent shall employ and maintain sufficient staff and purchasing
personnel who will devote an adequate portion of their time to the purchase
of the Company's products and to the performance of all the Agent's duties
and obligations to be performed hereunder. In this connection, the Agent
shall appoint a dedicated Account Executive to handle all matters for the
Company, on a daily basis.
2. The Agent shall use commercially reasonable efforts to conduct its duties
pursuant to the terms of this Agreement.
3. The Agent shall furnish the Company from time to time, as the Company may
reasonably request, with such statements, reports or other documents
pertaining to its activities hereunder.
4. The Agent shall provide manpower for the co-ordination work of the business
including the handling of purchase orders planned for merchandise by the
Company.
5. The Agent shall provide manpower for the handling of all shipping documents.
6. The Agent shall provide manpower on the handling and clearance of L/C, bills
and payments, where applicable.
7. The Agent shall provide the manpower on the liaison work with manufacturers
and vendors.
8. The Agent shall control the quality of the goods by engaging Q.C. staff to
carry out quality control inspections in the production line and on the
finished goods to ensure quality is in accordance with the agreed
specifications and that the product is complying with the required
specifications.
9. In consideration of the aforementioned agency service, the agent shall
receive, for products purchased on behalf of the company, a fee equal to 7%
of the gross involved value of products purchased by the Company (the
"Agency Fee"). The agency fee shall be computed on the basis of the
following formula: Factory purchase price of the merchandise x (1/0.93) =
Price quote to the Company with Agency fee inclusive
For all existing items manufactured by existing vendors, other than Tai Nam,
no agency fee will be charged by Tai Nam in the performance of the order
management role in these manufacturing entrustments unless Tai Nam be able
to source a better price on the existing item rendering a reduction and
savings from the existing price paid by the Company. As and when a saving is
realized, an agency fee, equal to the amount of the savings but no more than
7% as computed on the basis of the aforementioned paragraph, will be
remunerated to Tai Nam. Any savings in excess of the 7% would be completely
passed on to the Company such that the Company
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would under no circumstance be paying higher cost as the result of the
agency arrangement with Tai Nam.
10. The Company is to buy at FOB HK prices submitted by the vendors or
factories. Shipment processing charges will be responsible by the vendors or
factories for LCL handling including CFS charges (container freight station
charges in respect of inland & HK Transportation), and THC (terminal
handling charges and document charges from shipping companies). Shipment
consolidation will be done in HK and is the responsibility of the vendors or
factories.
11. In general, all other expenses on the development, testing, purchasing,
selling and all other expenses in the maintenance of matters in association
with this arrangement shall be responsible and paid for by the Company.
12. The Company shall be responsible for the charges in making of moulds on new
products and all related charge to complete the mould for manufacturing. The
moulds shall be the assets of the Company.
13. The Agency fee to the Agent shall be due and payable when the invoice is due
as and when the goods are being shipped. Calculation will be done on
individual invoice basis and be included as part of the cost of goods
purchased by the Company.
14. The Company shall be responsible to ensure compliance with all legal and
statutory requirements imposed on the business being conducted.
15. No party shall have the right to assign this Agreement or any of its rights
and privileges hereunder to any other person, firm or corporation without
the prior written consent of the other party, and any assignment without
such consent shall be null and void.
16. The Agent acknowledges and agrees that during the term of this Agreement it
will receive information developed by or on behalf of the Company relating
to the Company's products and the Company's business. The Agent acknowledges
and agree that such information, together with all information developed by
or on behalf of the Company either separately or in cooperation or
consultation with Agent hereunder, including without limitation, customer
lists and related materials, and all of the foregoing shall be and remain
the sole and exclusive property of the Company and is to be protected as
confidential information (all such information being hereafter referred to
collectively as the "Confidential Information"); except that Confidential
Information shall not include information:
(a) which is known to the recipient prior to disclosure (except for
non-public information concerning existing Company products or products
under
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development by or for the Company) or is information generally available
to the public;
(b) which was not acquired, directly or indirectly and/or in any manner,
from the disclosing party and which the recipient lawfully had in its
possession prior to the date of this Agreement; (c) which, hereafter,
through no act or omission on the part of the recipient, becomes
information generally available to the public;
(d) which corresponds in substance to information furnished to the recipient
on a non-confidential basis by any third party having a legal right to
do so; or
(e) which is required in response to legal process, or to the extent a Party
is advised that such action is required to comply with foreign, federal
or state laws or regulations.
The provisions of this Section shall not apply to any disclosure by David Ki
Kwan Chu in his capacity as Chairman or as a member of the Board of Directors of
Toymax International. Inc. or any of its subsidiaries if such disclosure is not
in violation of his fiduciary duties to Toymax International, Inc. or any of its
subsidiaries. During the term of this Agreement and for a period of two years
thereafter, the Agent agrees to keep confidential and disclose or permit to be
disclosed to any third party any such Confidential Information except to the
extent previously agreed in writing by the Company or as is required to be
disclosed pursuant to applicable law. The Agent acknowledges and agrees that the
Company would suffer great loss and irreparable damage if the Agent were to
disclose Confidential Information other than as contemplated herein, and the
Agent therefore acknowledges and agrees that the Company, in addition to any
right or remedy it may have at law or in equity hereunder, shall be entitled to
an injunction, without the posting of any bond or other security, enjoining or
restraining the Agent, its officers, employees or representatives from any
violation or threatened violation of this.
17. The Agent agrees not to sell, assign or transfer any products or property of
the Company without the prior written consent of the Company.
18. This Agreement is to be construed in accordance with the laws of the Hong
Kong Special Administration Region without giving effect to conflict of laws
principles.
19. Neither this Agreement nor any provision thereof may be modified, waived,
discharged or terminated orally, but only by a writing signed by the party
to be charged. A waiver of any provision by any party to this Agreement
shall be valid only in the instance for which given and shall not be deemed
continuing, and any such waiver shall not be construed as a waiver of any
other provision of this Agreement.
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20. Each party to this Agreement represents, agrees and warrants that it will
perform all other acts and execute and deliver all other documents that may
be necessary or appropriate to carry out the intent and purposes of this
Agreement.
21. This agreement shall be valid for a period to 31st March 2001 from the date
herein above referred. This agreement shall automatically extend until
termination. Each party shall have the right to terminate this agreement by
giving the other party three months' written notice in advance.
22. Nothing contained in this Agreement shall be construed as requiring the
commission of any act contrary to law. Whenever there is any conflict
between any provision of this Agreement and any present or future statute,
ordinance or regulation contrary to which the parties have no legal right to
contract, the latter shall prevail, but in such event the provision of this
Agreement thus affected shall be curtailed and limited only to the extent
necessary to bring it within the requirements of the law. In the event that
any part, article, paragraph, sentence or clause of this Agreement shall be
held to be indefinite, invalid or otherwise unenforceable, the entire
Agreement shall not fail on account thereof and the balance of the Agreement
shall continue in full force and effect. If any arbitration tribunal or
court of competent jurisdiction deems any provision thereof (other than for
the payment of money) unreasonable modification thereof and this Agreement
shall be valid and enforceable and the parties hereto agree to be bound by
and perform the same as thus modified.
23. This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original and all of which together shall be deemed
to be one and the same instrument.
WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the
date and year first above written. ABOVE AGREED TO AND ACCEPTED:
MONOGRAM INTERNATIONAL INC.
By: /s/ Thomas A. Schultz
Name: Thomas A. Schultz
Title: CFO & Asst. Secretary
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Date: March 24, 2000
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MONOGRAM PRODUCTS (H.K.) LIMITED
By: /s/ Robert K. Holden
Name: Robert K. Holden
Title: Executive Vice President
Date: March 24, 2000
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TAI NAM INDUSTRIAL COMPANY LIMITED
By: /s/ Edward Chu
Name: Edward Chu
Title: Director of Sales
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Date: March 30, 2000
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