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
