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Exhibit 10.1
MARKETING AND DISTRIBUTION AGREEMENT
THIS MARKETING AND DISTRIBUTION AGREEMENT ("Agreement") is
entered into
effective as of this 1st day of March, 2005, supercedes any and
all other
agreements whether in writing or orally communicated, by and
among Xtreme
Companies, Inc., a Nevada corporation (hereinafter "XTREME");
Marine Holdings,
Inc., a Missouri corporation (hereinafter "MARINE") d/b/a
Challenger Offshore,
and Ronald DiBartolo ("DiBartolo") and Gailynn DiBartolo, the
owners of all of
the outstanding shares of common stock of Marine Holdings, Inc.
(hereinafter the
"SHAREHOLDERS OF MARINE").
WITNESSETH:
WHEREAS, XTREME is engaged in the manufacture, marketing and
sale of fire,
rescue and law enforcement patrol boats.
WHEREAS, MARINE is engaged in the manufacture, marketing and
sale of
leisure, fishing and performance boats under the Challenger
Offshore name
("PRODUCTS').
WHEREAS, the SHAREHOLDERS OF MARINE are the sole record owners
and holders
of an aggregate of one-hundred percent (100%) of the issued and
outstanding
common stock of MARINE ("MARINE SHARES").
WHEREAS, XTREME desires to administer the marketing and sales,
and be the
exclusive distributor of the PRODUCTS, and MARINE desires for
XTREME to
administer the marketing and sales and be the exclusive
distributor of the
PRODUCTS.
WHEREAS, XTREME shall have the option to purchase one-hundred
percent
(100%) of the MARINE SHARES, and the SHAREHOLDERS OF MARINE
desire to sell or
cause to be sold the MARINE SHARES, upon the terms and subject
to the conditions
herein.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements
contained in this Agreement, and in order to consummate the
marketing and the
sale of the PRODUCTS, it is hereby agreed as follows:
1. SERVICES RENDERED
a. Services rendered by Xtreme.
(i) XTREME shall be the exclusive distributor
of the PRODUCTS and administer all marketing and sales efforts
on behalf of
MARINE.
(ii) Marketing. XTREME shall offer its key personnel, resources
and capital
to MARINE to facilitate the sales of PRODUCTS through dealer
networks,
industry trade shows, directly selling and other
distributors.
(iii) Sales Facilitation. XTREME shall act as the Sales
Facilitator of
PRODUCTS. All purchase orders shall flow through XTREME and
shall be
immediately assigned to MARINE for fulfillment.
(iv) Notify MARINE immediately of any threatened or any actual
legal
actions against MARINE or XTREME regarding the PRODUCTS;
(v) Comply with all applicable United States, Territorial,
federal,
provincial and local laws, ordinances and regulations in
connection
with the XTREME's performance of this Agreement;
(vi) Determine the nature of modifications to the PRODUCTS
required by the
local laws of the Territory to permit the marketing of the
PRODUCTS
within the Territory;
(vii) Obtain all licenses, permits, government approvals, custom
duties and
any and all other documents or payments which are required to
be
executed and paid in connection with the lawful license in,
and
shipment of the PRODUCTS in the Territory; and
(vii) XTREME will notify and keep MARINE informed of all
campaigns and
sales efforts that are currently being planned and/or
implemented.
b. Marine responsibilities.
(i) MARINE shall procure all inventory and assume responsibility
for
shipping and delivery of all PRODUCTS to the purchaser.
(ii) MARINE shall be responsible for all ongoing updates,
improvements,
product development and evolution of the PRODUCTS.
(iii) MARINE agrees to make available to XTREME such PRODUCTS as
XTREME may
secure orders for and at the prices and subject to the terms set
forth
in this Agreement or determined through arms-length
negotiations
between the parties hereto.
(iv) MARINE shall provide XTREME with at least 30 days written
notice prior
to discontinuation of any PRODUCT.
(v) MARINE shall provide XTREME at least 30 days written notice
prior to
the date that any new PRODUCT is to be introduced and shall make
such
PRODUCT available for distribution to XTREME not later than the
date
it is first introduced in the marketplace.
2. CONSIDERATION:
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XTREME shall pay five percent (5%) of the total outstanding
shares of
XTREME on the CLOSING DATE (the "XTREME SHARES") to MARINE for
the right to
market, sell and distribute the PRODUCTS upon the terms and
subject to the
conditions herein. Furthermore, MARINE shall offer the option to
XTREME to
purchase one-hundred percent (100%) of the outstanding shares of
the MARINE
SHARES upon the terms and subject to the conditions herein.
Furthermore, XTREME shall receive a five percent (5%) cash
commission,
based on the total sales price as represented on purchase orders
received by
XTREME or MARINE for all PRODUCT sales. The commission shall be
due immediately
upon delivery of the PRODUCT(S).
3. CLOSING.
a. PROCEDURE FOR CLOSING. The closing of the transaction
contemplated by this
Agreement shall be held at MARINE'S offices on or about March 1,
2005, at
5:00 pm PST ("CLOSING DATE") or such other place, date and time
as the
parties hereto may otherwise agree.
4. REPRESENTATIONS AND WARRANTIES OF MARINE. MARINE hereby
warrants and
represents:
a. AUTHORITY RELATIVE TO THIS AGREEMENT. Except as otherwise
stated herein,
MARINE has the full power and authority to execute this
Agreement and carry
out the transactions contemplated by it and no further action is
necessary
by MARINE to make this Agreement valid and binding upon MARINE
and
enforceable against them in accordance with the terms hereof, or
to carry
out the actions contemplated hereby. The execution, delivery
and
performance of this Agreement by MARINE will not:
(i) constitute a breach or a violation of MARINE'S Certificate
of
Incorporation, By-Laws, or of any law, agreement, indenture,
deed of
trust, mortgage, loan agreement or other instrument to which it
is a
party, or by which it is bound;
(ii) constitute a violation of any order, judgment or decree to
which it is
a party or by which its assets or properties are bound or
affected; or
(iii) result in the creation of any lien, charge or encumbrance
upon its
assets or properties, except as stated herein.
b. OWNERSHIP. All of such outstanding shares have been duly
authorized,
validly issued and are fully paid and non-assessable, were not
issued in
violation of the terms of any agreement or other understanding
legally
binding upon MARINE and were issued in compliance with all
applicable laws
and regulations.
c. REVENUES. MARINE is reporting total revenues of eight-hundred
and
thirty-seven thousand ($837,000) for the first six (6) months of
the fiscal
year ended December 31, 2004.
d. LAWSUITS, LIENS & TAXES. To the best of MARINE's
knowledge, MARINE is not
currently the subject of any lawsuit threatened or filed. MARINE
also
represents that MARINE, other than obligations to Sun Security
Bank ("SUN")
is free from any liens or encumbrances. MARINE shall be solely
responsible
for all taxes which may be incurred by MARINE resulting from the
receipt of
consideration by MARINE pursuant to this Agreement.
e. BROKERAGE. MARINE has not made any agreement or taken any
other action
which might cause anyone to become entitled to a broker's fee or
commission
as a result of the transaction contemplated hereunder.
f. OTHER SECURITIES. MARINE represents that there are no
outstanding shares of
any other class of MARINE stock including but not limited to any
MARINE
preferred stock or any other equity derivative or instrument
which can be
converted to common stock, other than the MARINE SHARES of
common stock
represented in this Agreement.
REPRESENTATIONS AND WARRANTIES OF XTREME. XTREME hereby warrants
and
represents:
a. AUTHORITY RELATIVE TO THIS AGREEMENT AND ANCILLARY DOCUMENTS.
Except as
otherwise stated herein, XTREME has full power and authority to
execute
this Agreement, and carry out the transactions contemplated by
it and no
further action is necessary by XTREME to make this Agreement
valid and
binding upon XTREME and enforceable against it in accordance
with the terms
hereof, or to carry out the actions contemplated hereby and
thereby. The
execution, delivery and performance of this Agreement by the
XTREME will
not:
i. constitute a breach or a violation of any law, agreement,
indenture,
deed of trust, mortgage, loan agreement or other instrument to
which
it is a party, or by which it is bound;
ii. constitute a violation of any order, judgment or decree to
which it is
a party or by which its assets or properties are bound or
affected; or
iii. result in the creation of any lien, charge or encumbrance
upon its
assets or properties except as stated herein.
b. OWNERSHIP. All of such outstanding shares have been duly
authorized,
validly issued and are fully paid and non-assessable, were not
issued in
violation of the terms of any agreement or other understanding
legally
binding upon XTREME and were issued in compliance with all
applicable laws
and regulations.
c. LAWSUITS, LIENS & TAXES. Other than reported in its SEC
filings, to the
best of XTREME's knowledge, XTREME is not currently the subject
of any
lawsuit th
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