EX-10.1
SALES FORCE AGREEMENT
This Sales Force Agreement is made and entered into as of this 21st day
of January, 2004, by and between SEALIFE MARINE PRODUCTS, INC., a
California corporation ("SeaLife") and BROKERS UNLIMITED, INC., a
California corporation ("BUI") with reference to the following:
RECITALS
A. SeaLife Marine Products, Inc. is a California corporation, which
has rights to manufacture and sell marine paints including SeaLife 1000,
a solvent base, anti-fouling coating for underwater use; SeaLife 2000, a
water base anti-fouling coating for submerged marine use; and SeaLife
3000, a water base coating with an advance anti-rust additive for above
water applications. SeaLife has rights to manufacture and sell these
products, which are part of EPA Registration Number 70214-1, from its
parent, SeaLife Corporation, a Delaware corporation (which including
improvements and new marine paint products constitute the "Products").
B. BUI is a California corporation, incorporated on October 22,
2003.
C. SeaLife has salespersons and sales accounts, as set forth on
Exhibit "1" and has prospective distributors as set forth on Exhibit
"2." These sales accounts and prospective distributors are reserved by
SeaLife.
D. BUI has the expertise and wherewithal to develop distributors
and to promote SeaLife's products. BUI represents and possesses the
ability and wherewithal to promote the sale and use of the Products
manufactured by SeaLife, and is desirous of developing demand for,
obtaining distributors, and selling the Products on an exclusive basis
worldwide, excepting only those sales accounts and prospective
distributors reserved to SeaLife.
F. SeaLife is agreeable to appointing BUI as its sales force and
BUI is agreeable to accepting such appointment on the terms and
conditions set forth herein.
WHEREFORE, it is mutually agreed as follows:
ARTICLE 1
APPOINTMENT
1.1 Exclusive Appointment; Territory.
(a) SeaLife appoints BUI as the sole and exclusive sales
force for the sale of its Products worldwide, excepting (i)
Scandinavia (Sweden, Norway, Denmark, Finland, Iceland,
Lithuania, Latvia and Estonia) which territory is to be handled
by Marika Borofsky as a House Account, (ii) Japan and Korea,
which territory is to be handled on a non-exclusive basis with
Bob Lee, who shall handle enumerated Housed Accounts, as set
forth in Exhibit "1," and (iii) other House Accounts. The
worldwide territory, with the exceptions noted above,
constitutes the Territory.
(b) BUI shall continue to be such sole and exclusive
sales force after June 30, 2004, conditioned upon BUI
meeting or exceeding the sales goals set forth in
Article 6. Exclusivity and the right to continue sales of
the Products may be reduced or lost as set forth in Section
6.2, if BUI does not obtain minimum sales set forth therein.
(c) During the term of this Agreement, SeaLife shall not
appoint any other or different person, firm, business entity, or
corporation to sell the same Products, excepting only House
Accounts.
1.2 House Accounts. SeaLife reserves the right to sell directly to
House Accounts. For purposes of this Agreement, House Accounts are
defined as the Sales Accounts and representatives set forth on Exhibit
"1" and the Prospective Distributors set forth in Exhibit "2."
1.3 Acceptance. BUI accepts the appointment to develop demand for
and to sell the Products, to establish distributors to sell the
Products, to assist distributors or House Accounts in promoting and
selling the Products, and to make all sales hereunder in accordance with
this Agreement.
1.4 Term. Unless terminated as hereinafter provided, this Agreement
and the appointment of the BUI hereunder shall continue in force through
March 31, 2008, and shall automatically be extended thereafter for one
year periods, unless either party shall give the other party ninety days
written notice prior to such anniversaries of its election to terminate
this Agreement, or this Agreement is terminated pursuant to Article 7.
ARTICLE 2
BUI DUTIES
2.1 Establishment of Distributors. BUI shall obtain one or more USA
West Coast distributors to promote and sell the Products on or before
January 31, 2004. Any prospective distributorship arrangement shall be
in writing and shall be presented to SeaLife for its execution and
approval, which will not be unreasonably withheld or delayed. Failure
of BUI to have obtained a West Coast distributor reasonably acceptable
to SeaLife on or before January 31, 2004, shall permit SeaLife to
terminate the contract on ten day's written notice.
2.2 Duties of BUI. BUI shall obtain, create, supervise and assist
distributors to sell the Products. BUI shall provide such support,
prospective customers, leads, and sales assistance to accomplish the
minimum sales set forth in Section 6.1. BUI shall select distributors
for SeaLife's approval, which will not be unreasonably withheld or
delayed, and help them with their strategic plans and sales, including
but not limited to monitoring relationships; inspecting sales
performance of the distributor; creating and utilizing
computer/telephone technology to process, track and manage all orders
obtained through the distributors, and, if applicable, the House
Accounts; set up and operate a toll-free telephony services and web
portals; providing content and information provided by SeaLife as to
distributors and the Products to enable retail and wholesale customers
to obtain the Products and determine the viability of the Products for
their uses. The cost of creating and maintaining the web portals and
telephony services shall be solely that of BUI, and no content shall be
included without the prior approval of SeaLife.
2.3 Levels of Service. BUI shall provide three levels of service,
namely:
(a) Low Level, by providing remote sales support including
conference calls and providing information to assist the House Account
representative to close the sale, strategy and order processing support
to the House Account distributors and their customers, and to the House
Accounts, with commissions payable pursuant to Section 3.3(b).
(b) Middle Level support, providing the Low Level support plus
onsite sales support, including but not limited to, providing staff to
work with the distributors or House Account to promote the Products, to
develop solid leads, and to assist in accomplishing sales of the
Products, with commissions payable pursuant to Sections 3.3(c) or
3.3(d).
(c) Full Support, providing the Middle Level support plus signing up
distributors, assisting with the strategic plans to accomplish greater
sales, and assisting sales to the ultimate end users along with the
distributor, including attendance and participation in face-to-face
meetings, all with the approval of SeaLife, with commissions payable
pursuant to Section 3.3(a).
2.4 Marketing Plans/Content. BUI agrees to work with and assist
SeaLife in developing marketing plans and web portal promotions and
information, in conjunction with their marketing assistance to
distributors, all to be approved by SeaLife prior to incorporation
and/or dissemination.
2.5 Bi-Monthly Conferences. SeaLife and BUI shall have bi-monthly
meetings, at times and places mutually agreed upon, to discuss and plan
goals and programs to further the marketing distribution and sale of the
Products. These conferences shall include, but not be limited to,
commitment of resources by SeaLife and BUI; training plans and
determinations to be executed by SeaLife and BUI; action plans to be
executed by BUI; targeting distributors and potential customers;
providing maintenance schedules for existing distributors and customers;
and developing marketing plans for improvements and enhancements of the
Products and/or new products.
2.6 Monthly Reports. BUI shall provide SeaLife monthly reports
setting forth its distributors, their marketing efforts, contacts made,
the sales accomplished, the leads being pursued, and marketing plans for
the next two quarters.
2.7 Customer Follow-Up. BUI shall create, design, operate and
maintain customer follow-ups and customer satisfaction programs, all
with the approval of SeaLife, which will not be unreasonably withheld or
delayed.
2.8 Staff. BUI represents and warrants that it will provide
sufficient staffing to obtain distributors; assist the marketing and
sales of the Products; maintain the toll-free telephony services;
maintain and update the web portals (with content to be provided by
SeaLife); develop an enhanced marketing plans for the distributors and
their clients; and assist and work with SeaLife to grow the business and
increase sales to the mutual benefit and satisfaction of both parties.
2.9 Compliance With Laws. SeaLife and BUI agree to fully comply
with all applicable state, federal and international laws, statute,
rules and regulations with respect to marketing of the Products.
2.10 Expenses. BUI shall bear the full cost and expense of
providing all of its services including, but not limited to, salaries
of its employees, office and administrative expenses, travel,
correspondence, business communications,advertising programs and
market plans, presentations, creation of the web portals and toll-free
telephony services, supporting such items, and other related costs
and all taxes imposed on BUI, subject to BUI having the right to
dispute any taxes imposed.
ARTICLE 3
OPERATIONS
3.1 Acceptance of Orders; Filling.
(a) All orders SeaLife receives for its Products from BUI or
its distributors are subject to confirmation by SeaLife, which
will not be unreasonably withheld or delayed.
(b) SeaLife will use its best efforts to fill the accepted
orders as promptly as practicable, subject, however, to delays
caused by Government orders or requirements, transportation
conditions, labor or material shortages, strikes, riots, fires,
or any other cause beyond SeaLife's control. In all cases,
SeaLife will use its best efforts to advise BUI in advance of
any inability to make full and timely delivery of any products
which the Sales Representative has previously ordered.
3.2 Payment.
(a) BUI's distributors and/or their customers shall pay
SeaLife for its Products.
(b) SeaLife may change the schedule of prices at any time
with thirty (30) days notice. Such price increases shall not
apply to confirmed orders in process.
3.3 Commission to BUI.
(a) BUI shall be paid a commission of 17% of the Gross Sales
received by SeaLife for sales accomplished by BUI and/or its
distributors in the territory, less freight and delivery costs,
product returns, discounts, and repacking charges. Discounts
shall be handled on a pro rata basis, e.g., if the discount
required is 20%, BUI's commission will be reduced by 20% (such
pro rata discounts are "Discounts").
(b) For House Accounts, BUI will assume primary service
responsibilities after the close of sale, and assist SeaLife's
representatives and accounts through sale. The services
rendered by BUI to assist in accomplishment of House Account
sales, BUI shall receive a commission of 7% of the Gross Sales
received by SeaLife for sales accomplished by the House Account
representative, less freight and delivery costs, Product
returns, Discounts, and repacking charges.
(c) For all new accounts obtained by BUI and/or its
distributors from SeaLife recommended prospective customer
leads, BUI shall be paid a commission of 12% of the Gross Sales
received by SeaLife for sales accomplished, less freight and
delivery costs, Product returns, Discounts, and repacking
charges.
(d) Such payment to BUI shall be within fifteen (15) days of
receipt of payment by SeaLife from BUI's distributors, or its
customer, or House Account customer.
(e) SeaLife shall provide BUI written notification of leads
and prospects with the name and address of the contact person.
SeaLife representatives shall assist BUI as requested, to
accomplish the sale of the Products to such leads. BUI and/or
its distributors shall have primary responsibility of following
up and attempting to close sales to the lead. All Gross Sales
obtained from such lead shall be subject to the 12% commission
to BUI and Middle Level support. The level of support shall
determine if a 12% or 17% commission is applicable.
If BUI and/or its distributors have already contacted the
prospect, they shall provide written notice to SeaLife of the
prior contact, the person contacted,and information regarding
that contact. To assist both parties in this respect,
in its monthly reports, BUI shall provide lists of names of
persons and entities contacted so that there will be fewer
disputes as to who created the lead which ultimately resulted
in the sale. If the parties disagree as to the appropriate
commission (17% or 12%) to BUI, the decision shall be submitted
to mediation or arbitration pursuant to Article 9.
(f) Gross Sales equal all sums actually received by Company
from the sale of Products.
3.4 BUI's Efforts, Facilities and Personnel. BUI will use its best
efforts to promote demand for and sale of SeaLife's Products and will
maintain adequate facilities and sales and personnel for the purpose.
BUI shall have the right, subject to SeaLife's prior approval, which
will not be unreasonably withheld or delayed, to terminate a distributor
and replace it with a more productive distributor.
3.5 Place of Business; Display. BUI shall maintain a place of
business, display materials, website portals, toll-free telephonic
services and demonstration sites reasonably satisfactory to SeaLife at
all times, and SeaLife shall have the right at all reasonable times
during business hours to inspect the place of business and display
materials for matters connected with the Agreement.
3.6 Appointment of Distributors, Salesmen or Other Representatives.
(a) BUI shall work and develop the Territory to the
reasonable satisfaction of SeaLife, and in doing so may appoint
distributors, salesmen, or other representatives to sell
SeaLife's Products.
(b) SeaLife will execute agreements with the distributors
obtained by BUI and approved by SeaLife.
(c) Upon expiration or prior termination of any such
agreement for any cause, BUI shall furnish SeaLife with notice
thereof.
3.7 Report of Sales. SeaLife shall furnish BUI monthly sales
reports of all sales of Products.
3.8 Confidentiality. BUI acknowledges that during the engagement it
will have access to and become acquainted with various trade secrets,
inventions, innovations, processes, information, pricing, product
development, marketing, promotional activities, records and
specifications owned or licensed by SeaLife and/or used by SeaLife in
connection with the operation of its business including, without
limitation, SeaLife's business and product processes, methods, customer
lists, accounts and procedures ("Confidential Information"). BUI agrees
that it will not disclose any Confidential Information, directly or
indirectly, or use any Confidential Information in any manner, either
during the term of this Agreement or at any time thereafter, except as
required in the course of this engagement with SeaLife. All files,
records, documents, blueprints, specifications, information, letters,
notes, media lists, original artwork/creative, notebooks, and similar
items prepared or furnished by SeaLife and containing Confidential
Information, shall remain the exclusive property of SeaLife. BUI shall
not retain any copies of the foregoing without SeaLife's prior written
permission. Upon the expiration or earlier termination of this
Agreement, or whenever requested by SeaLife, BUI shall immediately
deliver to SeaLife all such files, records, documents, specifications,
information, and other items in its possession or under its control,
upon written request from SeaLife.
In furtherance of its confidentiality obligations, BUI, its agents,
servants and/or employees, undertake:
(a) To keep all the Confidential Information in confidence;
(b) To use any Confidential Information only for the
purposes of selling SeaLife's product;
(c) Not, without SeaLife's prior written consent, to
communicate or to disclose or copy any Confidential Information
to any person other than any of BUI's directors, officers,
employees, agents or representatives who require access to sell
SeaLife's Products (each such person an "Authorized Person");
(d) To ensure that all Authorized Persons are, prior to the
disclosure of Confidential Information, made aware of its
confidential nature and that they hold the Confidential
Information in accordance with the terms of this Agreement;
(e) That, if Confidential Information is to be disclosed per
Court order or is disclosed under a legal requirement, BUI shall
notify SeaLife immediately. If an unauthorized disclosure is
made, BUI shall notify SeaLife immediately and use its best
efforts to recover the Confidential Information disclosed within
a two year period; and
(f) That BUI shall indemnify and hold harmless SeaLife for
any damages which a Court in a final decision shall have
accepted to have been caused by the unauthorized disclosure or
breach of this Agreement, including the cost of any reasonable
expenses incurred as a result of such disclosure or breach.
3.9 Conflicts of Interest; Non-Hire Provision.
(a) BUI represents that it is free to enter into this
Agreement, and that this engagement does not violate the terms
of any agreement between BUI and any third party. Further,
BUI, in rendering its duties shall not utilize any
invention, discovery, development, improvement, innovation,
or trade secret in which it does not have a proprietary
interest. During the term of this Agreement, BUI shall
devote as much of its productive time, energy and
abilities, if any, as BUI, in its sole discretion, shall
determine. BUI is expressly free to perform non-competing
sales or services for other parties while performing services
for SeaLife. For a period of two years following any
termination, BUI shall not, directly or indirectly hire,
solicit, or encourage to leave SeaLife's employment, any
employee, consultant, or contractor of SeaLife or hire any
such employee, consultant, or contractor who has left
SeaLife's employment or contractual engagement within two
years of such employment or engagement.
(b) SeaLife represents that it is free to enter into this
Agreement, and that this engagement does not violate the terms
of any agreement between SeaLife and any third party. Further,
SeaLife, in rendering its duties shall not utilize any
invention, discovery, development, improvement, innovation, or
trade secret in which it does not have a proprietary interest.
SeaLife is expressly free to perform non-competing sales or
services for other parties while performing services for
SeaLife. For a period of two years following any termination,
SeaLife shall not, directly or indirectly hire, solicit, or
encourage to leave BUI's employment, any employee, consultant,
or contractor of BUI or hire any such employee, consultant, or
contractor who has left BUI's employment or contractual
engagement within two years of such employment or engagement.
3.10 Right to Use Name.
(a) Subject to the provisions of Subsection (b), BUI may use
the name SeaLife as applied to SeaLife's Products in any sign or
advertising during the term of this Agreement.
(b) In case of termination of this Agreement, BUI shall
discontinue use of such name in any sign or advertising and
thereafter shall not use the name directly or indirectly in
connection with his business, nor use any other name, title, or
expression so nearly resembling it as would be likely to lead to
confusion or uncertainty or to deceive the public.
3.11 Disclosure. SeaLife and BUI shall have the right to disclose
their relationship to third parties in such detail as they deem
appropriate.
3.12 Insurance. BUI will carry liability insurance relative to any
service that it performed for SeaLife, naming SeaLife as an additional
insured of not less than $5,000,000 (including excess or umbrella
coverage) and BUI shall provide SeaLife with a Certificate of Insurance.
SeaLife shall carry general liability insurance and products liability
insurance of not less than $5,000,000 per occurrence, naming BUI and its
distributors as additional insureds, and SeaLife shall provide BUI and
its distributors with a Certificate of Insurance. Each such insurance
shall provide that the named additional insured shall be given thirty
(30) days advance notice of non-renewal or non-payment of premium.
3.13 Products Warranties. At BUI's request, SeaLife shall furnish to
each distributor or customer solicited, SeaLife's standard warranty
covering the Products, such warranty to be established by SeaLife from
time to time. Such standard warranty shall contain a statement to the
effect that no one is authorized to make any warranty or representation
other than as set forth in the standard warranty, and that the
distributor or customer may not rely on any other warranty or
representation. SeaLife shall be solely responsible for the design,
development, supply, production and performance of the Products for
which orders are solicited and for the protection of its trade name or
names, if any.
3.14 Responsibility for Products. The parties acknowledge that BUI's
duties are in the nature of acting as SeaLife's sales force as provided
herein, and that BUI shall have no responsibility related to the
preparation, quality and shipment of Products.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF SEALIFE
As a material inducement to BUI to enter into this Agreement and to perform its
obligations hereunder, SeaLife hereby represents and warrants to BUI as set
forth below in this Article 4.
4.1 Organization of SeaLife. SeaLife is a corporation duly
organized, validly existing and in good standing under the laws of the
State of California.
4.2 Authorization and Approvals. This Agreement is the legal, valid
and binding obligation of SeaLife, enforceable in accordance with its
terms, except as may be limited by bankruptcy, reorganization,
insolvency, moratorium or other laws relating to or affecting the
enforcement of creditors' rights and remedies generally. This Agreement
has been duly and validly authorized by all necessary corporate action
on the part of SeaLife.
4.3 No Violations. Neither the SeaLife's execution and delivery of
this Agreement nor its performance of its obligations hereunder will (a)
result in a default under any of the terms, conditions or provisions of
any contract, agreement, instrument, commitment or undertaking to which
the SeaLife is a party or is subject, or (b) violate any existing order,
writ, injunction, decree, law, statute, rule or regulation of any court
or governmental authority.
4.4 Due Authorization. SeaLife has all necessary corporate power
and authority to execute and deliver this Agreement and to perform its
obligations hereunder. This Agreement has been duly and validly
authorized by all necessary corporate action on the part of SeaLife.
This Agreement constitutes the legal, valid and binding obligation of
SeaLife enforceable in accordance with its terms, subject to judicial
discretion regarding specific performance or other equitable remedies,
and except as may be limited by bankruptcy, reorganization, insolvency,
moratorium or other laws relating to or affecting the enforcement of
creditors, rights and remedies generally.
4.5 Product Warranties. SeaLife will continue its research and
development program for the Products, and improvements thereof; and
SeaLife will provide all warranties for the Products.
4.6 Accuracy of Representations and Warranties. Subject to the
qualifications stated therein, no representation or warranty made by
SeaLife in this Agreement contains any untrue statement of a fact or
omits to state a fact necessary in order to make the statements so made,
in light of the circumstances under which they are made, not misleading.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF BUI
As a material inducement to SeaLife to enter into this Agreement and to
perform its obligations hereunder, BUI hereby represents and warrants to
SeaLife as follows:
5.1 Organization of BUI. BUI is a corporation duly organized,
validly existing and in good standing under the laws of the State of
California. BUI represents and warrants that it is a Subchapter S
Corporation and that it will advise SeaLife within five business days of
any changes to its current Board of Directors and Shareholders. BUI
will provide a redacted copy of its IRS 2553 Form, without social
security numbers and personal addresses, to SeaLife within five business
days of execution of this Contract.
5.2 Due Authorization. BUI has all necessary corporate power and
authority to execute and deliver this Agreement and to perform its
obligations hereunder. This Agreement has been duly and validly
authorized by all necessary corporate action on the part of BUI. This
Agreement constitutes the legal, valid and binding obligation of the BUI
enforceable in accordance with its terms, subject to judicial discretion
regarding specific performance or other equitable remedies, and except
as may be limited by bankruptcy, reorganization, insolvency, moratorium
or other laws relating to or affecting the enforcement of creditors,
rights and remedies generally.
5.3 No Violations. Neither the BUI's execution and delivery of this
Agreement nor its performance of its obligations hereunder will (a)
result in a default under any of the terms, conditions or provisions of
any contract, agreement, instrument, commitment or undertaking to which
the BUI is a party or are subject, or (b) violate any existing order,
writ, injunction, decree, law, statute, rule or regulation of any court
or governmental authority applicable to BUI.
5.4 Expertise; Contracts. BUI has established relationships and
contacts with potential distributors, distributors and customers for the
Products, and has the marketing expertise and skills, management
capabilities, web portal expertise, to fully and efficiently perform all
obligations set forth in this Agreement.
5.5 Accuracy of Representations and Warranties. Subject to the
qualifications stated therein, no representation or warranty made by BUI
in this Agreement contains any untrue statement of a fact or omits to
state a fact necessary in order to make the statements so made, in light
of the circumstances under which they are made, not misleading.
ARTICLE 6
SALES REQUIREMENTS
6.1 To maintain its territorial exclusivity to sell the Products,
BUI must meet the following sales goals. A sale is deemed completed
upon delivery of the Product and receipt of payment therefor from the
customer. House Account sales for which BUI will receive a commission,
shall not count towards the following sales requirements:
(a) Secure a West Coast distributor in accordance with
Section 2.1.
(b) Obtain completed Gross Sales of not less than 20,000
U.S. Gallons at normal Product pricing, considering volume
pricing, not at deep discounts ("Normal Product Pricing") or
before July 1, 2004.
(c) Obtain completed Gross Sales to apply the one or more
Products to a General Maritime Corporation vessel, to become
completed on or before October 1, 2004.
(d) Obtain and complete Gross Sales for not less than 40,000
gallons of Products Normal Product Pricing, which will include
(b) and (c) above, through December 31, 2004.
(e) Obtain and complete Gross Sales for not less than 60,000
gallons of Products at Normal Product Pricing through March 31,
2005, which will include (b), (c) and (d) above.
(f) Obtain and complete Gross Sales of not less than 100,000
gallons of Products at Normal Product Pricing during the period
April 1, 2005 through March 31, 2006.
(g) Obtain and complete Gross Sales of not less than 250,000
gallons of Products at Normal Product Pricing during the period
April 1, 2006 through March 31, 2007.
(h) Obtain and complete Gross Sales of not less than 300,000
gallons of Products at Normal Product Pricing during the period
April 1, 2007 through March 31, 2008.
(i) Obtain and complete Gross Sales of not less than 500,000
gallons of Product at Normal Product Pricing during the period
April 1, 2008 through March 31, 2009.
(j) Obtain and complete Gross Sales of Products for such
gallonage as has been agreed to by and between the parties for
each year thereafter, but in no event less than 500,000 gallons
per fiscal year.
6.2 Non-Exclusive Distribution. If BUI fails to meet the minimum
sales set forth in Section 6.1, the parties agree that BUI shall remain
a non-exclusive distributor for SeaLife so long as BUI obtains the
following completed Gross Sales of Products at Normal Product Pricing:
(a) 50,000 gallons Gross Sales of Products, exclusive of
House Sales, through March 31, 2005.
(b) 75,000 gallons Gross Sales of Products, exclusive of
House Sales, for each early period commencing April 1 and
concluding March 31, the first such year being April 1, 2005
through March 31, 2006.
(c) Should BUI become a non-exclusive marketing agent, it
must maintain other obligations set forth in this Agreement
notwithstanding the loss of exclusivity, and BUI agrees to
continue to provide such services notwithstanding that it no
longer has the exclusive worldwide distribution, except for
House Accounts.
ARTICLE 7
TERMINATION
7.1 SeaLife Right to Cancel. SeaLife shall have the right to cancel
the Agreement upon:
(a) Ten (10) days notice, without being cured, for any of the
following:
(1) Minimum sales goals as set forth in Sections 6.1 and 6.2 have not
been met;
(2) Peter Georgiopoulos ceases to be a shareholder of at least 10%
of the shares of BUI, other than by death.
(3) Peter Georgiopoulos dies on or before March 31, 2005.
(b) SeaLife shall have the right to terminate this Agreement
upon thirty (30) days notice, without being cured, for any of
the following:
(1) Subject to the written notice and 30-day cure
provisions set forth in Section 7.2(b), SeaLife
reasonably and in good faith determines that BUI's
staffing is insufficient to develop the marketplace for
its Products.
(2) Subject to the written notice and 30-day cure
provisions set forth in Section 7.2(b), SeaLife
reasonably and in good faith determines that the
marketing programs and product development skills of BUI
are insufficient to fulfill the needs of this Agreement.
(3) Subject to the written notice and 30-day cure
provisions set forth in Section 7.2(b), SeaLife
reasonably and in good faith determines that its
interests may be imperiled in the case of insolvency of
BUI.
7.2 Joint Right to Cancel. Either party may terminate this
Agreement as follows:
(a) Upon notice of non-renewal to the other party on or
before December 31 for the fiscal year ending the following
March 31.
(b) Breach or default by the other party of any of the
terms, obligations, covenants, representations and warranties
under this Agreement, which is not waived in writing by the non-
defaulting party. In such case, the non-defaulting party shall
notify the other party of such alleged breach or default,
describing its nature in reasonable detail, and the other party
shall have a period of thirty (30) days to cure the same.
(c) The other party is declared insolvent or in bankrupt, or
makes an assignment for the benefit of creditors, or a receiver
is appointed or any proceeding is demanded by for or against the
other under any provisions of the Federal Bankruptcy Act or any
amendment thereof and such involuntary bankruptcy and/or
receiver is not eliminated within sixty (60) days.
7.3 Applicability of Terms After Termination. In the event of termination,
this Agreement shall remain applicable to any orders for Products which BUI or
its distributors have previously placed and to any other orders which may be
executed by such parties within three (3) years subsequent to the effective date
of termination, and solid leads developed by BUI which result in sales within a
two (2) year period (e.g., if a solid lead results in sales, by a client
identified on BUI's final monthly report or its reservation list, commencing six
months after termination, BUI would be entitled to a commission for sales
completed within the next eighteen (18) months through two (2) years after
termination). Within ten (10) days of termination, BUI shall provide SeaLife a
reservation list, delineating all distributors and customers it has obtained.
SeaLife may dispute such names, subject to the arbitration procedures set forth
in Article 9. SeaLife shall continue to provide sales reports and payments as
to BUI distributors and customers throughout the applicable two year or three
year period.
(a) SeaLife shall have the option to have BUI provide full
support to the distributors or customers following termination,
in which case, BUI will be entitled to a 17% commission on Gross
Sales completed within the applicable time period.
(b) SeaLife may choose to have BUI provide only Mid Level
support to the distributors or customers, following termination.
In such case, BUI will be entitled to a 12% commission, on Gross
Sales completed within the applicable time period.
(c) SeaLife may change the level of service required by BUI
throughout the applicable period, and/or on a client by client,
or each distributor basis, in which case the commission level
shall be adjusted accordingly.
ARTICLE 8
INDEMNIFICATION
8.1 Indemnification by BUI. BUI shall hold harmless and indemnify
SeaLife, and its principals, agents, employees, attorneys,
representatives, heirs, successors, assigns, parents, subsidiaries,
officers, shareholders, personal representatives, and others claiming
through them (collectively the "Released Parties") from any and all
claims, actions, causes of action, obligations, liabilities,
indebtedness, breaches of duty, claims for injunctive or other equitable
relief, suits, liens, losses or economic damages, all of third parties,
including reasonable attorney's fees of any nature or kind whatsoever,
known or unknown, suspected or unsuspected, fixed or contingent,
liquidated or unliquidated, arising out of BUI's acts, duties or
omissions, to be performed under the Agreement; provided, however, that
such indemnification shall not include consequential damages, lost
profits, and good will damages, costs and expenses.
8.2 Indemnification by SeaLife. SeaLife shall hold harmless and
indemnify BUI, and its principals, agents, employees, attorneys,
representatives, heirs, successors, assigns, parents, subsidiaries,
officers, shareholders, personal representatives, and others claiming
through them (collectively the "Released Parties") from any and all
claims, actions, causes of action, obligations, liabilities,
indebtedness, breaches of duty, claims for injunctive or other equitable
relief, suits, liens, losses or economic damages, all of third parties,
including reasonable attorney's fees of any nature or kind whatsoever,
known or unknown, suspected or unsuspected, fixed or contingent,
liquidated or unliquidated, arising out of SeaLife's acts, duties,
omissions or Product defects; provided, however, that such
indemnification shall not include consequential damages, lost profits,
and good will damages, costs and expenses.
8.3 Claims Procedures. A party entitled to indemnification
hereunder shall notify the indemnifying party of any claim of such
indemnified party for indemnification under this Agreement (other than
in respect of third party claims referred to in Section 8.4 below)
within thirty (30) days of the date on which a party first receives
actual notice of the existence of such claim. Such notice shall specify
the nature of such claim in reasonable detail, and the indemnifying
party shall be given reasonable access to any documents or properties
within the control of the indemnified party as may be useful in the
investigation of the basis for the claim. The failure to so notify the
indemnifying party within such thirty-day period shall be deemed to be a
waiver of the indemnified party's rights of indemnification under this
Article 8 only to the extent the indemnifying party has been actually
prejudiced by such failure to receive notice.
8.4 Third Party Claims. If a claim by a third party is made against
any of the indemnified parties, and if such indemnified party intends to
seek indemnity with respect thereto under this Article 8, such
indemnified party shall promptly notify the indemnifying party of such
claim. The indemnifying Party shall have thirty (30) days after receipt
of the above-mentioned written notice to commence to undertake, conduct
and control, through counsel of its own choosing and at its expense, the
settlement or defense therefor, and the indemnified party shall
cooperate in connection therewith; provided that: (a) Indemnifying
party shall not thereby permit to exist any lien, encumbrance or other
adverse charge upon any asset of any indemnified party, (b) the
indemnifying party shall permit the indemnified party to participate in
such proceeding through counsel chosen by the indemnified party, and (c)
the indemnified party shall have the right to employ its own counsel, at
indemnifying party's expense, if such indemnified party reasonably
concludes that such action, suit or proceeding involves to a significant
extent matters beyond the scope of the indemnity agreement contained in
this Article 8, or that there may be defenses available to it (or him or
them) which are different from or additional to those available to the
indemnifying party. So long as the indemnifying party is reasonably
contesting any such claim in good faith, the indemnified party shall not
pay or settle any such claim. If the indemnifying party does not notify
the indemnified party within thirty (30) days after receipt of the
indemnified party's written notice of a claim of indemnity hereunder
that it elects to undertake the defense thereof, the indemnified party
shall have the right to contest, settle or compromise the claim in the
exercise of its exclusive discretion at the expense of the indemnifying
party, which expense shall be promptly paid upon the written demand of
the indemnified party. The indemnified party shall, however, notify the
indemnifying party in writing of any compromise or settlement of any
such claim.
8.5 Survival of Obligations. The indemnification obligations under
this Article 8 shall survive termination and continue in full force and
effect.
ARTICLE 9
ARBITRATION
9.1 Any controversy, claim, dispute or other matter arising out of,
or relating to, this Agreement shall be decided by binding arbitration
in a manner agreed upon by the parties, and in the absence of such
agreement, in accordance with the Arbitration Rules of the American
Arbitration Association. Any arbitration shall be held in Los Angeles,
California. No arbitration may be commenced unless the parties have
first attempted informal or formal mediation of the dispute with a
mediation process in a manner agreed upon by the parties, and in the
absence of such agreement, in accordance with the Mediation Rules of the
American Arbitration Association.
9.2 The party demanding mediation and then arbitration shall give
notice of the demand in writing to the other party and to the American
Arbitration Association in Los Angeles, California. The demand for
mediation and then arbitration shall be made within a reasonable time,
after a claim, dispute or other matter in question has arisen, but
except as otherwise expressly provided herein, in no event, after the
date when institution of legal or equitable proceedings based on such
claim, dispute or other matter in question would be barred by the
applicable statute of limitations. Section 1283.05 of the California
Code of Civil Procedure is incorporated in this Agreement and made a
part hereof.
NOTICE: BY INITIALING IN THE SPACE BELOW, YOU ARE AGREEING TO HAVE ANY
DISPUTE CONCERNING MONEY DAMAGES ARISING OUT OF THIS AGREEMENT,
DETERMINED BY MEDIATION AND THEN ARBITRATION AND ARE WAIVING ANY RIGHT
TO HAVE THE DISPUTE LITIGATED IN A COURT AND BY A JURY TRIAL. ALL
DISPUTES INVOLVING EQUITABLE RELIEF SUCH AS INJUNCTIONS MAY BE FILED IN
A COURT OF COMPETENT JURISDICTION UNLESS THE PARTIES AGREE TO SUBMIT
SUCH EQUITABLE ISSUES TO MEDIATION AND THEN ARBITRATION.
SeaLife /s/ RM BUI /s/ JR
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RM JR
ARTICLE 10
INTERPRETATION AND ENFORCEMENT
10.1 Notices. Any and all notices, demands, or other communications
required or desired to be given hereunder by any party shall be in
writing and shall be validly given or made to another party if
personally served, sent by recognized overnight courier service, or if
deposited in the United States mail, certified or registered, postage
prepaid, return receipt requested. If such notice or demand is served
personally, notice shall be deemed constructively made at the time of
such personal service. If sent by recognized overnight courier service,
such notice shall be deemed given the next business day. If such
notice, demand or other communication is given by mail, such notice
shall be conclusively deemed given two (2) days after deposit thereof in
the United States mail addressed to the party to whom such notice,
demand or other communication is to be given as follows:
If to BUI: Brokers Unlimited, Inc.
1821 Glenhaven Avenue
Walnut Creek, CA 94595
Attention: Joe Regoli
If to SeaLife: SeaLife Marine Products, Inc.
5601 W. Slauson Avenue, Suite 283
Culver City, CA 90230
Attention: Robert McCaslin
Any party hereto may change its address for purposes of this paragraph by
written notice given in the manner provided above.
10.2 Independent Contractor. This Agreement shall not render BUI an
employee, partner, agent of, joint venturer or legal representative of
SeaLife for any purpose. BUI is and will remain an independent
contractor in its relationship to SeaLife. SeaLife shall not be
responsible for withholding taxes with respect to BUI's compensation
hereunder. BUI shall have no claim against SeaLife hereunder or
otherwise for vacation pay, sick leave, retirement benefits, social
security, worker's compensation, health or disability benefits,
unemployment insurance benefits, or employee benefits of any kind.
10.3 Completeness of Instrument. This instrument contains all of the
agreements, understandings, representations, conditions, warranties, and
covenants made between the parties hereto. Unless set forth herein,
neither party shall be liable for any representations made, and all
modifications and amendments hereto must be made in writing.
10.4 Assignment. This Agreement constitutes a personal contract and
neither party shall transfer or assign the Agreement or any part thereof
without written consent of the other party.
10.5 Right to Injunction. The parties hereto acknowledge that the
services to be rendered by BUI under this Agreement and the performance
by SeaLife under the Agreement are of a special, unique, unusual, and
extraordinary character which gives them a peculiar value, the loss of
which cannot be reasonably or adequately compensated by damages in any
action at law, and the breach by either party of any of the provisions
of this Agreement will cause either party irreparable injury and damage.
Either party expressly agrees that the other party shall be entitled to
injunctive and other equitable relief in the event of, or to prevent a
breach of any provision of this Agreement by either party. Resort to
such equitable relief, however, shall not be construed to be a waiver of
any other rights or remedies that the other party may have for damages
or otherwise. The various right and remedies of the other party under
this Agreement or otherwise shall be construed to be cumulative, and no
one of them shall be exclusive of any other or of any right or remedy
allowed by law.
10.6 No Implied Waivers. The failure of either party at any time to
require performance by the other party of any provision hereof shall not
affect in any way the full right to require such performance at any time
thereafter. Nor shall the waiver by either party of a breach of any
provision hereof be taken or held to be a waiver of the provision
itself.
10.7 Controlling Law. The validity, interpretation, and performance
of this Agreement shall be controlled by and construed under the laws of
the State of California, the state in which this Agreement is being
executed. It is understood, however, that this is a general form of
agreement, designed for use throughout the world wherever SeaLife may
desire to sell its Products, and that any provision herein which in any
way contravenes the laws of any state, country or jurisdiction shall be
deemed not to be a part of this Agreement therein.
10.8 Attorneys' Fees. If any action or other proceeding is brought
to enforce the rights or obligations of the parties under this
Agreement, the prevailing party shall be entitled to recover all of such
party's costs and expenses of suit, including reasonable attorneys'
fees, in addition to any other relief to which it may be entitled.
10.9 Modification or Amendment. No amendment, change or
modification of this Agreement shall be valid unless in writing signed
by the parties hereto.
10.10 Unenforceability of Provisions. If any provision of this
Agreement, or any portion thereof, is held to be invalid or
unenforceable, then the remainder of this Agreement shall nevertheless
remain in full force and effect.
Executed on January 21, 2004, at Alamo, California.
COMPANY:SEALIFE MARINE PRODUCTS, INC.
/s/ Bob McCaslin
- ------------------------------
By: Bob McCaslin Its:
President
BROKERS UNLIMITED, INC.
/s/ Joseph Regoli
- ----------------------------
By: Joseph RegoliIts:
President
EXHIBIT "1"
SALESPERSONS AND SALES ACCOUNTS
SeaLife Sales Representatives, Distributors and Selected Territories for
House Accounts:
1. Bob Lee
Exclusively:
Nippon Paint (Japan)
Nippon Paint - Aquaculture (Japan)
Daewoo Shipbuilding (Korea)
Samsung (Korea)
On a non-exclusive basis, with a sharing commission, as to other
Japanese or Korean clients.
2. Marika Borofsky - Scandinavia - Includes:
Sweden
Norway
Denmark
Finland
Iceland
Baltic Sea States - Lithuania
Latvia
Estonia
3. Stephen Lyons (Avi)
Maersk shipbuilding and maintenance
Isabela Ferreira (Brazil)
Petrobras and Brazilian Navy (Brazil)
Ali Zeitoun (Middle East)
K. F. Choy/Cuthbert (China)
4. David Westover - Marina del Rey
Marina del Rey Test boats
Baja Naval - Baja California (Mexico)
5. DeAna Vitela
U.S. Army Tank turret test
6. RKR - Bob Koehler/John D. Riley
Dave Falconer - Brush Tek (Australia-New Zealand)(Potential Distributor)
Red House Marketing (Manama, Bahrain)
Antonio Girona Garcia (Alicante, Spain)
Forestall Shipyard (Essen, Germany)
A. NASSCO, San Diego, CA and its affiliated shipyards in General
Dynamics
B. Fluor-Daniel, Sugerland, Texas
C. Belfro Corp., Houston, Texas
D. Petro-Chemical Systems Corp., Salt Lake City, Utah
E. Te Shaw Group, Baton Rouge, LA
F. Corrosion Engineering Services, San Diego, Naval Sea Systems
Command
G. McDonalds of the EU. London UK
H. Dept. of Transportation, UK
I. Environmental Department, UK
J. Greater London City Council, UK
K. Thysson-Krupp, Germany
L. Haullotte, Paris, France
M. French Navy
N. Malta Dry Docks, Malta
O. Dubai, Dry Docks, Dubai
P. ASARY, Bahrain
7. Graham Walsh - East Coast
Fjord Seafood - Belfast, Maine
Crab Fishermen
HOUSE
SPECIAL ACCOUNTS
SEALIFE MARINE PRODUCTS, INC.
8. J.P. Heyes
Blue Ocean Ship Management Ltd.
9. Dan Kubik
Carnival Corporation - London, UK
Carnival Cruise Lines - Miami, Florida
Naval Sea Systems Command
Honda - Japan - NofKansai - Yoshiyuki Ono (John Drew)
Edison Chouest (in conjunction with Dave Westover)
Grand Banks Yachts - Singapore
10. Bob McCaslin
Chinese Navy - Sho Hamada
U.S. Dept. of Marina Development - Bob McCaslin
West Marine - Walnut Grove, CA
SeaLife may change salespersons assigned to sales accounts and retain
such accounts as House Accounts.
SeaLife may add sales representatives and sales accounts as House
Accounts, subject to reasonable approval by BUI, which approval shall
not be unreasonable withheld or delayed.
EXHIBIT "2"
PROSPECTIVE DISTRIBUTORS
The following represents potential distributors reserved to SeaLife:
1. Acadiana Paint & Supply
Ronnie Cripps
120 Toledo Drive
Lafayette, LA 70506
2. Budget Marine Group
Robbie Ferron
Box 434
St. Marten Neth Antilles NEAR
VI
Phone: 599-544-3134
Fax: 599-544-4409
Territory - Grenada, Antigua, St. Marten,
U.S. Virgin Islands, Bonaire
3. Blount Barker Shipbuilding
Bob Correa
461 Water Street
P. O. Box 368
Warren, RI 02885
Phone: 401-245-8300
Fax: 401-245-8303
Territory - Yet to be defined