SHARE SHIP AGREEMENT
THIS AGREEMENT ("Agreement") is between:
Euro Oceans, Ltd.
Having offices at 14 Huntington, Trinity, Texas, 75862
("Developer")
And:
Marine Growth Ventures, Inc.
Having offices at 405-A Atlantis Rd., Cape Canaveral, Florida, 32920
("MGV")
And:
Marine Growth Canada, Ltd.
Having offices at 405-A Atlantis Rd., Cape Canaveral, Florida, 32920
("MGC")
And:
Sophlex Ship Management, Inc.
Having offices at 405-A Atlantis Rd., Cape Canaveral, Florida, 32920
("Sophlex")
And:
Ship Timeshare Management, Inc.
Having offices at 405-A Atlantis Rd., Cape Canaveral, Florida, 32920
("STMI")
WHEREAS:
A. The Developer is a Bahamas corporation formed by Barry Jones ("Jones") for
the purpose of selling timeshares on a Cruise ship ("Shares") on a first
cruise ship (the "Project"); and
B. MGV wants to and Developer wants MGV to provide the investment capital and
expertise necessary for the acquisition and improvement of a cruise ship
("First Vessel") for the Project; and
C. MGC, a wholly owned subsidiary of MGV, has acquired the First Vessel-the
Pacific Aurora; and
D. The number of Shares for The Project is equal to the number of cabins on
the First Vessel times 50 weeks, (34 x 50 = 1700) each representing a 7
day cruise each year for a predetermined number of years. It is
anticipated by Developer that the initial term for the Project shall be 20
years; and
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E. MGV desires to contract with Developer on an exclusive basis for Developer
to market and sell on behalf of MGV the Shares to buyers ("Owners"); and
F. MGC and the Owners' Association (as defined in H below) shall enter into a
Bareboat Charter Agreement which, among other things, shall grant the
Owners' Association the right to utilize the First Vessel for any and all
uses related to the Project; Additionally, MGC and Sophlex shall enter
into an agreement for Sophlex's services, including without limitation,
deck, engine, and hotel services to the Project and Association and
G. The sale of Shares, use and occupancy of the First Vessel by Owners,
related rights of Owners and other matters governing ownership of a Share
and use of the First Vessel are disclosed and set forth in documents
("Governing Instruments") that include (a) Declarations of Covenants,
Conditions and Restrictions ("Declarations"), (b) "Bylaws", for the
Association, (c) a Disclosure Statement, Offering Circular or similar
documents, each containing all necessary provisions as may be required by
applicable local or state law, (d) a Share "Purchase Agreement", and (d)
"Rules". The Declarations and present Purchase Agreement, Exhibits "E" and
"F", are hereby attached to made a part of this Agreement; and
H. As provided for in the Governing Instruments, each Owner upon acquisition
of a Share shall become a member of an Owners' Association
("Association"), said Association to be responsible for the operations of
the First Vessel as well as representing the rights of the Owners; and
I. Each Owner shall pay an annual fee ("Maintenance Fee") to be used to pay
for any and all costs related to the operation and maintenance of the
First Vessel, its use and occupancy by Owners, and the administration of
the Association. Developer shall be responsible for determining the
initial annual Maintenance Fee amounts; and
J. MGV shall by way of a Voting Proxy grant to Developer the right to vote on
behalf of any unsold Shares until such time as 85% (1445) of the Shares
are sold; and
K. MGV, MGC, and Developer want Sophlex, a company affiliated with MGV, to
provide operating deck, engine and hotel management services for the First
Vessel and subsequent ships pursuant to the terms of a related
agreement(s) ("Ship Management Agreement"); and
L. MGV and Developer want "Ship Timeshare Management", having the same
principals as Sophlex, to administer the business of the Association
pursuant to a related agreement ("Association Agreement").
NOW, THEREFORE, Developer, MGV, MGC, and Sophlex agree as follows:
1. SHIP ACQUISITION AND IMPROVEMENT
A. MGC has acquired full title to the First Vessel in the name of
Pacific Aurora. MGC shall provide all necessary funds and expertise
required to bring the ship to the condition necessary for its use
for the Project ("MGC Investment"). The ship is more particularly
described in Exhibit "D", attached to and hereby made a part of this
Agreement. The parties hereby consent to the re-naming of the First
Vessel to "Squamish Voyager", provided such change does not
materially add to the costs of the Project.
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B. Prior to any sales of Shares, MGV, MGC, and Sophlex shall insure
that the First Vessel is in compliance with all safety and operating
requirements and that no additional expenses are necessary for the
First Vessel to be able to commence passenger service, unless
otherwise set forth in Exhibit "D".
2. BUSINESS MODEL PROJECTION
A. Developer has prepared a Share projection for the Project dated the
1st of April 2007, attached to and hereby made a part of this
Agreement as Exhibit "A", "Plan Model".
B. The Plan Model describes the number of Shares and sales, potential
income, planned expenses, payment of charter fees by Developer to
MGV, other First Vessel costs, net income and distribution of net
income. Tax ramifications have not been included in the Plan Model
and related changes may occur.
C. The Governing Instruments and any and all marketing materials used
by Developer or on its behalf, shall adequately disclose agreed upon
minimum sales necessary for the Project to be self-sustaining.
D. MGV, MGC, and Developer agree that Developer is committing to use
its best efforts to sell the Shares, but in all cases for purposes
of performance and termination rights: (1) for so long as MGV's
financing for the First Vessel and Project remains outstanding,
Developer is hereby guaranteeing to achieve, on an aggregate basis,
sales targets and revenue amounts of at least 75% of those stated in
the Plan Model; (2) for all periods following the full and final
payment of MGV's financing for the First Vessel and Project, the
Developer is hereby guaranteeing to achieve, on an aggregate basis,
sales targets and revenue amounts of at least 50% of those stated in
the Plan Model. For purposes of this Section 2D, subsection (i),
shall not apply if the failure to achieve the targets and revenue
amounts is a result any action or default on the part of another
party to this Agreement, including their respective management or
agents. Furthermore, Developer shall not be responsible for failure
to achieve as a result of deteriorated economic conditions arising
because of an act of terrorism, or acts of God. In the event that
Developer fails to meet these targets outlined in this Section 2D,
MGC at its sole option may exercise the termination rights provided
for in Section 11 hereunder. In the event that MGC exercises said
termination rights, MGC in its sole discretion may proceed with the
Project on its own and/or retain the services of another entity to
perform the duties of the Developer as outlined herein.
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E. In accordance with Section 2(D) above, Developer hereby warrants
that to the best of Developer's knowledge there are presently no
existing defaults or other obstacles that would hinder or otherwise
prevent Developer from achieving the sales targets or revenue
amounts stated in the Plan Model. Furthermore, for purposes of this
Section 2, subsections D and E, Developer shall be required to
notify MGV in writing within five (5) days of Developer's knowledge
of the existence of any default or other action by any party to this
Agreement that Developer believes is or will impact Developer's
ability to achieve the sales targets and revenue amounts stated in
the Plan Model.
3. FIRST VESSEL DELIVERY AND CHARTER
A. MGC shall charter the First Vessel to the Association pursuant to
the terms of a Bareboat Charter Agreement. A "Ship Management
Agreement" shall be attached to and made a part of the Bareboat
Charter Agreement. The Bareboat Charter Agreement and Ship
Management Agreement are hereby attached to and made a part of this
Agreement as Exhibit "C".
B. The initial term of the Bareboat Charter Agreement shall be 20
years. The Bareboat Charter Agreement shall contain provisions
permitting the Owners the right to extend the Bareboat Charter
Agreement at the expiration of the initial term, provided the First
Vessel is capable of continuing to operate.
C. INTENTIONALLY LEFT BLANK
D. Pursuant to the Bareboat Charter Agreement, delivery of the First
Vessel shall be made by MGC to the Developer on behalf of the
Association on or before the 1st day of May 2007, ("Delivery Date")
at North Vancouver, British Columbia, Canada.
4. SHIP AND ASSOCIATION OPERATION AND MANAGEMENT
A. The administration of Association business shall be carried out by
STMI, pursuant to Exhibit "B", "Association Management Agreement",
attached to and hereby made a part of this Agreement. STMI is owned
by the same principals as Sophlex.
B. The operation and management of the First Vessel's deck, engine and
hotel departments shall be carried out by Sophlex pursuant to the
"Ship Management Agreement" between Sophlex and MGC that a part of
the Charter Agreement.
C. Pursuant to the Governing Instruments and as required by any related
management agreements referenced herein, STMI, with all required
assistance from Sophlex, shall prepare a detailed operating and
management budget for the First Vessel to include, but not limited
to: (a) costs for and related to First Vessel and hotel operations,
repairs, passenger service and other requirements, including a
reasonable reserve for annual or biennial and emergency maintenance
and repairs, replacement of goods and materials, and insurance, (b)
for the cost of Association administration, (c) net on board income,
some of which shall be credited against costs and expenses, and (d)
management expenses and fees. The subsequent combined total annual
cost shall be divided by the number of Shares, adjusted to
differentiate between cabin categories, to determine the annual
Maintenance Fee payable by each Owner.
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D. To assist with the implementation of Association functions, the
Developer may assist STMI in the initial organization and early
management of the Association, as Sophlex may reasonably request.
Developer shall be reimbursed by Sophlex or the Association, as may
be appropriate, for related expenses.
E. MGV, Sophlex, STMI and/or Developer may provide additional services
not specifically described in this Agreement, as may arise and be
required, in support of the Project, each being reasonably
reimbursed by the Association or from proceeds from sales of Shares
or otherwise.
5. GOVERNING INSTRUMENTS
A. The Developer shall prepare, produce and pay related costs of and
for Governing Instruments, including filing and registration of
disclosure statements if and as required by any State or other
regulatory authority.
B. MGV, MGC, Sophlex and STMI shall assist the Developer with the
preparation of Governing Instruments as may be reasonably required,
including timely provision of information required by any regulatory
agency.
C. MGV shall review all initial Governing Instruments prior to their
filing or dissemination to any third parties. Following their
initial filing, MGV shall also review any material changes made to
the Governing Instruments prior to any filing or dissemination to
any third parties. Said review by MGV shall be timely and shall not
unreasonably delay Developer's completion of its responsibilities
under this Agreement. For purposes of this Section 5 (C), "timely"
shall be no longer than seven (7) business days from MGV's receipt
of said Governing Instruments.
6. SHARE SALES AND DEVELOPER INCOME
A. The Developer will manage the marketing and sale of Shares and
commercial cruises through a sales company(ies) ("Sales
Company(ies)"), and as the Developer otherwise deems to be in the
best interest of the Project; provided however, that any Sales
Company utilized by Developer shall be an entity owned or operating
with Developer's direct control and supervision.
B. Developer shall cause to be formed and properly registered a
corporation in the name of Boutique Cruise Lines, Inc. Said
corporation shall be used by the Developer to market commercial
cruises, support the sale of Shares, and otherwise perform
Developer's obligations under this Agreement for the Project.
Further, said corporation shall at all times be owned and controlled
by Developer.
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C. Except as otherwise stated in this Agreement, contemplated by the
Plan Model or included in contracts with them, Sales Companies and
other entities active in the marketing, sale and promotion of Shares
or that provide tour and other services to ship passengers, shall be
independent entities that are obligated to and pay all of their own
costs and expenses.
D. A predetermined minimum Net Sales Price has been assigned to each
Share cabin category as follows: A - $6,720.00; B - $6,272.00; C -
$5,920; D - $5,408.00; E - $3,936.00; F - $3,456.00. The Developer
reserves the right to adjust the minimum Net Sales Prices between
cabin categories but in no event shall any change reduce the overall
average Net Sales Price of $5,480.00. No Share shall be sold for
less than the minimums contained herein without the prior written
consent of MGC.
E. Credit card processing charges sufficient to pay merchant account
fees and card processing costs ("Card Costs") shall be deducted from
amounts payable from the Escrow Account (described in Section 7.B.)
to MGC, Developer and Sales Company(ies), on a pro rata basis
relative to the amount due each such party. Developer shall attempt
to, but may not, cause a related Share sale price to be increased in
at least a like amount to offset such Card Costs deductions.
F. In the event that a provider of Share buyer financing charges a
service charge or discount fee ("Finance Fees") that must be paid by
the Developer, such Finance Fees shall be deducted from amounts
payable from the Escrow Account (described in Section 7.B.) to MGV,
Developer and Sales Company(ies), on a pro rata basis relative to
the amount due each such party. Developer shall attempt to, but may
not, cause a related Share sale price to be increased in at least a
like amount to offset such Finance Fees deductions.
G. In addition to the sales price paid by buyers of Shares, buyers
shall pay closing cost fees in amounts, for purposes and payable to
parties determined by Developer to cover costs and expenses related
to closing Share sales, including, but not limited to, Escrow
Account management, some buyer financing setup fees, provision of
welcome gifts to buyers, UCC filings for financed sales, ownership
deed issuance, ownership registration, purchase contract review and
finalization, preventing buyer cancellations during the Waiting
Period, other ownership conveyance and related administrative and
management costs. These costs and related disbursements shall be
determined by the Developer.
7. DEVELOPER EXPENSES AND DISTRIBUTION OF NET INCOME
A. Expenses to be incurred by the Developer are described in the Plan
Model and Exhibit "G", "Developer Expenses", attached to and hereby
made a part of this Agreement.
B. All Share sales income shall be deposited into an escrow account
pursuant to an escrow agreement approved by MGV, Developer, and
MGV's financing institution ("Escrow Account"). Once each week
amounts paid into the Escrow Account shall be disbursed to MGV,
MGV's financial institution, Developer, Sales Company(ies) and
otherwise as set forth in Escrow Agreement. Such disbursement shall
be for each recently closed and final sale that has been paid for in
full, for which all requirements of regulatory agencies have been
met and when no known refund requirement exists. Escrow Account
records and reports shall be provided to all parties at agreed upon
times.
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C. A management fee amount shall be paid to Jones by Developer ("Jones
Expense Fee") and to Sophlex ("Sophlex Expense Fee") in the amount
and manner described in the Plan Model.
D. At such time that net income, after expenses contemplated in the
Plan Model (including First Vessel Bareboat Charter payments), and
all debts relating to the acquisition of the First Vessel have been
paid in full, exceeds $100,000.00 for two consecutive months, then
starting in the second such month, all net income in excess of
$100,000.00 shall be split equally between MGC and Developer, or
their permitted assigns. All income from the Project earned
following the sale of 100% of the Shares shall be split equally
between MGV and Developer, or their permitted assigns.
8. DISSEMINATION OF PROJECT INFORMATION
A. The parties to this Agreement acknowledge that publicity has a
significant impact on the promotion of Shares and that it must be
managed in a controlled manner intended to enhance Share sales.
Developer shall be responsible for the creation and supervision of
all promotional materials, provided however, that Developer shall
submit all materials to MGC for review prior to any dissemination to
any third party. MGC shall timely review said materials and shall
not unreasonably delay its review and approval of said materials.
"Timely" for purposes of this Section 8(A) shall mean no longer than
seven (7) business days following MGC's receipt of said materials.
Developer acknowledges and understands that MGC's review and
approval of all materials is necessary due to the fact that MGV is a
publicly held corporation with corresponding obligations to
shareholders and public governing bodies such as the SEC.
Accordingly, MGV has to review and approve all materials prior to
dissemination and MGV will also periodically as required to do so,
issue press releases and/or filings with applicable regulatory
agencies. MGV will share any press releases or filings with
Developer for Developer's input prior to their filing; provided,
however that final authority on said materials will rest with MGV.
9. NON COMPETE
A. Unless otherwise provided for in this Agreement, MGV, MGC, Sophlex,
and Developer for themselves, and for their officers and directors,
pursuant to the agreement of such parties, which MGV, MGC, Sophlex,
and the Developer hereby warrant as having been given, hereby agree
not to compete directly or indirectly with the business of the
Developer as related to the Project during the term of this
Agreement. Further, Developer hereby agrees that it is the intention
of the parties to this Agreement that Developer is to provide its
services outlined herein on an exclusive basis for MGV, MGC and the
Project.
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B. Unless otherwise provided for in this Agreement, the term "not to
compete" as used herein shall mean that MGV, Developer and Sophlex
shall not own, invest in, manage, operate, consult or be employed in
a business substantially similar to and competitive with the present
business of the Developer and Project as contemplated by and during
the term of this Agreement.
10. ASSIGNMENT
No party to this Agreement may assign its interests under this Agreement
or any ancillary agreement referenced herein, without the prior written
consent of the other parties, said consent not to be unreasonably
withheld. For purposes of this Section 10, the withholding of consent to
an assignment shall be deemed unreasonable if the intended assignee shall
be shown to have been capable of performing the duties under the assigned
agreement from both an operational and financial standpoint. Provided
however, that assignments shall be permitted to entities under common
control and ownership with said party desiring to assign.
11. TERM AND TERMINATION
A. The term of this Agreement shall start on the date that the Agreement
is executed by all parties hereto, and except as otherwise provided
for herein, terminate on the earlier of the following:
(a) By MGV or Developer by giving the other sixty (60) days'
written notice of a default of any of the provisions of this
Agreement, said notice shall provide for a minimum of sixty
(60) days to cure said default. Provided, however, that no
cure period shall be required for purposes of a termination
pursuant to Section 11 (d) hereunder.
(b) At the option of the Developer at such time as the Developer
has sold 85% or more of the Shares in the Project. In this
event all of the obligations and rights of the Association,
Owners and Sophlex contemplated by this Agreement shall
continue.
(c) At the time 100% of the Shares in the Project are sold.
(d) At the sole option of MGV if beginning on the 15th day of
August 2007, Share Net Sales Revenue is less than 75% of the
cumulative amount detailed in the Plan Model over a
consecutive four (4) month period, or if monthly Net Sales
Revenue over a consecutive four (4) month period is
insufficient to pay all expenses and ship costs as
contemplated by the Plan model, whichever is lowest. Provided,
however, that this termination right shall only be applicable
for so long as any MGV financing for the First Vessel and the
Project remains unpaid. Following the full and final payment
of all MGV financing related to the First Vessel and the
Project, the termination rights contained in this Section
11A(d) shall be changed to read that 50% shall be substituted
for 75%.
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B. In the event this Agreement is terminated, then:
(a) Unless as otherwise provide for in this Agreement, all of the
rights and obligations of the parties to this Agreement shall
terminate, except that all of the rights of the Association
and Owners contemplated by this Agreement and Governing
Instruments shall continue pursuant to their owns terms.
(b) All sums due MGV, MGC, and Developer, or any other parties
referenced in Section 7 above, to the time of termination
shall be paid to them in the manner provided for in this
Agreement.
(c) INTENTIONALLY LEFT BLANK
12. ADDITIONAL SHIPS
The parties acknowledge that prior to the acquisition of the First Vessel,
Jones was actively tracking the availability of and working to acquire
ships for a cruise timeshare business other than, prior to and during
MGV's negotiation to acquire the First Vessel, including entering into
tentative related tentative arrangements ("Tentative Arrangements).
Developer hereby warrants that all such Tentative Arrangements have been
terminated except for one involving a party named Rainer Tanzier. The
parties hereby agree that in the event Tanzier presents a workable project
to MGV and Developer and MGV choose to not go forward with such new
project that Tanzier shall be compensated for his efforts by way of a one
time flat fee monetary payment. Said amount will be determined at such
time by agreement between MGV and Developer. Said amount shall be
reasonable based upon the work performed by Tanzier.
13. RECORDS AND REPORTS
A. Developer shall prepare and provide MGV / MGC with reports and
records necessary to fully disclose sales, income, expense,
distribution of money and related financial information. This shall
include weekly reports from the Escrow Account agent describing the
distribution of cash receipts, a monthly Share sales report, and
quarterly financial statements for the Developer.
B. MGV/MGC, Sophlex, and STMI shall cause the Developer and Association
to be provided reports and records describing full financial
information regarding the operation of the First Vessel and
Association on a weekly and monthly basis as agreed to by Sophlex
and Developer.
C. The Parties to this Agreement acknowledge and agree that audited
financial statements on no less than an annual basis will be
required of MGC/MGV with respect to the Project in accordance with
SEC requirements and/or other regulatory agencies. Costs for said
audits shall be borne by MGV/MGC.
14. OTHER
A. The corporate parties to this Agreement and/or their management or
officers can be involved in entities and activities related and
intended to enhance the Share project, including Sophlex and STMI as
provided for in this Agreement, Sales Company(ies), tour and
excursion activities as may be in the best interests of Shares
marketing and sales, and otherwise, except that no such involvement
shall diminish Share marketing and sales, commercial cruise fare net
income, or increase related expenses or costs.
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B. The failure of any of the parties to this Agreement to demand strict
performance by the other party of any of the terms of this Agreement
shall not be construed to be a continuing waiver or relinquishment
thereof, and either MGV or Developer may at any time demand
subsequent strict and complete performance by the other of all other
provisions of this Agreement.
C. The parties to this Agreement acknowledge that Jones has had and
continues to have a business relationship with Windjammer Barefoot
Cruises, Ltd., and related entities. Provided said relationship does
not materially interfere with Developer's performance under this
Agreement, said relationship shall be excluded from the non-compete
provisions contained in Section 9 herein.
D. This Agreement is binding upon and shall inure to the benefit of all
of the parties to this Agreement, their heirs, successors, and
permitted assigns.
E. In the event that any legal action related to this Agreement is
instituted by one or more of the parties to this Agreement against
another, the prevailing party(ies) shall be entitled to recover
reasonable legal costs and attorney fees.
F. Any notices to be given to one part to this Agreement by another
shall be in writing and shall be delivered in person, by courier if
a delivery receipt must be signed or by certified mail requiring a
return receipt, to the addresses set forth on the first page of this
Agreement. Notices shall be deemed received at such time as a
delivery is made in person or a receipt is signed. Any change of
address shall be promptly reported to the other party in the same
manner.
G. Except as otherwise provided for herein and/or in a separate written
agreement, this Agreement and attached Exhibits contain the entire
agreement between the parties to this Agreement. There are no oral
agreements existing between the parties that are not expressly set
forth herein and therein. Any amendment to this Agreement must be in
writing signed by all of the parties to this Agreement.
H. Section or paragraph headings in this Agreement and in attached
Exhibits are for reference purposes and are not intended to and
shall not in any way modify or limit any provisions in sections or
paragraphs of this Agreement.
I. This Agreement shall be governed by and construed in accordance with
the laws of the State of Florida.
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Date: April 11, 2007
MARINE GROWTH VENTURES, INC. (MGV)
By: /s/ Craig Hodgkins Its: President
------------------------------ ------------------
EURO OCEAN, LTD (DEVELOPER)
By: /s/ Barry Jones Its:
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SOPHLEX SHIP MANAGEMENT, INC (SOPHLEX)
By: /s/ Timothy Levensaler Its: President
------------------------------ ------------------
MARINE GROWTH CANADA, LTD. (MGC)
By: /s/ Craig Hodgkins Its: President
------------------------------ ------------------
SHIP TIMESHARE MANAGEMENT, INC. (STMI)
By: /s/ Timothy Levensaler Its: Director
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Exhibits:A: Plan Model
B: Association Management Agreement
C: Charter and Ship Management Agreement
D: First Vessel Description
E: Declarations
F: Purchase Agreement
G: Developer Expenses
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