Exhibit 10.5
SEA MOTORS GROUP, INC.
COMMISSION BASED CONSULTING AGREEMENT
THIS COMMISSION BASED CONSULTING AGREEMENT dated as of December 29, 2008
(hereinafter called this "Agreement"), is by and between SEA MOTORS GROUP, INC.,
a Delaware corporation ("Consultant") and XXX MOTORS, INC., a Delaware
corporation and any of its affiliates ("XXX").
BACKGROUND
A. Consultant has advised XXX regarding the formation of a new distribution
company in the Philippines anticipated to be called XXX Philippines to sell XXX
Products, hereinafter referred to as ("Distributor"). Distributor is a joint
venture entity in the process of formation between XXX and and The City
Government of Puerto Princesa, a Local Government Unit (LGU), Province of
Palawan, the Philippines ("Palawan"). Distributor has been or will be granted a
distributorship from XXX for the distribution of high quality electric vehicles
and related products and services (the "Xxx Products" or the "Products")
throughout the Philippines (the "Territory").
B. Consultant has been, and will continue to be, instrumental in bringing
the parties together and assisting with the formation of Distributor.
C. Palawan has agreed to assist Distributor purchase a significant dollar
volume of Products from XXX, which Products shall be purchased through
Distributor with the intention of distributing said Products throughout the
Territory.
D. The parties intend that Consultant shall receive a commission on all
sales of Products by XXX and/or Distributor throughout the Territory.
E. Based upon the foregoing. Consultant and XXX have agreed to the
following:
AGREEMENTS
1. SALES COMMISSION
Consultant is actively working on closing an order for XXX that would consist of
2,500 vehicles for approximately $4,090 per vehicle. At the close of this order
Consultant will receive 1,300,000 shares of rule 144 restricted Common Stock of
XXX at no cost to Consultant (the "Stock Commission") and 2.6% of the money
received by XXX in cash. It is anticipated that Palawan will provide XXX (or
Distributor) with $4,500,000 as a deposit to the above order. Once XXX receives
the deposit it is agreed to and understood that XXX will pay to Consultant (1)
the Stock Commission, and (2) 2.6% of the deposit (approximately $117,000 if
$4,500,000 is received) and the remaining cash portion will be paid to
Consultant on a pro-rata basis when and as additional cash payments for the
order are received by XXX. XXX will make payment to Consultant of the cash
portion of the commission within 5 banking days of LEO's receipt of cash
payments. The shares of Common Stock to be transferred to Consultant as payment
of the Stock Commission will be granted without any payment from Consultant and
will have no restriction other than standard rule 144 restrictions.
Further Sales Commissions will be paid out as outlined below:
A. After the initial order, the commission structure for which is outlined
above. Distributor and XXX, jointly and severally, shall pay to Consultant a
commission upon the receipt of an order for any Product by Distributor and/or
XXX in the Territory. Such commission shall be equal to five percent (5%) of the
purchase price of the Products in cash on a pro-rata basis of cash given to
Distributor or XXX. (the "Commission").
B. Distributor and/or XXX shall pay the Commission due to Consultant at the
time Distributor and/or XXX is paid for any portion of the order. In the event
that purchaser makes a down-payment or advance on the purchase price.
Distributor and/or XXX shall pay five percent (5%) of such down-payment or
advance to Consultant. When the
balance of the payment is made, Distributor and/or XXX shall pay five percent
(5%) of the balance of any payments. Interest shall accrue on any late
Commission payments at the rate of five (5%) per month
2. RELATIONSHIP OF THE PARTIES
The relationship between Consultant and Distributor, XXX and/or Palawan is that
of independent contractor. Nothing stated in this Agreement shall be construed
as creating any relationship between Consultant and the other parties as
partners or as employer and employee, franchisor and franchisee, master and
servant or principal and agent. Consultant shall be deemed an independent
contractor at all times and for all purposes.
It is also agreed to and understood that Xxxxxx Xxxx (aka: Shi Xxxx Xxxx) is no
longer affiliated with Consultant and will get all his compensation directly
from XXX.
3. ASSIGNMENT
Neither Distributor nor XXX may assign, transfer or sell all or any of its
rights under this Agreement (or delegate all or any of its obligations
hereunder) without prior written consent of Consultant. Consultant may assign
this Agreement only to a parent, subsidiary or affiliated firm, or to another
entity in connection with the sale or other transfer of all its business assets,
upon reasonable notice in advance thereof to Distributor and XXX. Subject to
these restrictions, the provisions of this Agreement shall be binding upon and
inure to the benefit of the parties, their successors and permitted assigns.
4. WAIVER
The waiver by either party of any of its rights or any breaches of the other
party under this Agreement in a particular instance shall be construed as a
waiver of the same or different rights or breaches in subsequent instances. All
remedies, rights, undertakings and obligations hereunder shall be cumulative,
and none shall operate as a limitation of any other.
5. NOTICES
All notices and demands of any kind, which any party may be required or desire
to serve upon the other(s) under the terms of this Agreement shall be in writing
and shall be served by commercial courier or by mail at the addresses set forth
in this Agreement, or at such other addresses as may be designated hereafter by
the parties in writing. If by commercial courier, service shall be deemed
complete upon delivery. If by mail, service shall be deemed complete five (5)
business days after mailing.
6. PARAGRAPH HEADINGS AND LANGUAGE INTERPRETATIONS
The paragraph headings contained herein are for reference only and shall not be
considered substantive provisions of this Agreement. The use of a singular or
plural form shall include the other form, and the use of a masculine, feminine
or neutral gender shall include the other genders.
7. EXECUTION OF AGREEMENT
This Agreement shall become effective only upon its execution by Consultant
Distributor and XXX; provided, however, it is understood by the parties that
Distributor is an entity in formation and this Agreement shall be binding upon
Distributor when Distributor has been formed and will be binding upon XXX and
Consultant when signed by them.
8. SEVERABILITY
In the event that any of the provisions of this Agreement, or the application of
any such provisions to the parties hereto with respect to their obligations
hereunder shall be held by a court of competent jurisdiction to be unlawful or
unenforceable, the remaining provisions of this Agreement shall remain in full
force and effect, and shall not be affected, impaired or invalidated in any
manner.
9. ENTIRE AGREEMENT
This Agreement, together with any other documents incorporated herein by
reference, constitutes the entire agreement between the parties hereto
pertaining in any manner to the subject matter hereof. Each party to this
Agreement acknowledges that no oral or written representations, inducements,
promises or agreements have been made which are not embodied herein. Except as
otherwise provided herein, any and all written or oral agreements heretofore
existing between parties pertaining in any manner to the subject matter of this
Agreement expressly are superseded and canceled by this Agreement. Except as
otherwise provided herein, this Agreement may not be modified, supplemented or
amended, except by a written instrument signed by both parties. This Agreement
may not be terminated by any party and Consultant shall receive its Commission
for so long as revenue is generated by XXX in the Territory.
10. COUNTERPARTS
This Agreement can be executed in multiple counterparts, which together form an
enforceable agreement. If any party to this Agreement fails to execute this
Agreement, the Agreement shall be fully enforceable against all parties signing
the Agreement.
11. APPLICABLE LAW
This Agreement shall be governed by and construed in accordance with the laws of
the State of Delaware (regardless of the laws that might otherwise govern under
applicable principles of conflicts of law).
[Signatures on next page]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
and year hereinabove written.
SEA MOTORS GROUP, INC.
By: \s\ Xxxx Xxxxxx
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PRINT NAME: XXXX XXXXXX
TITLE: MANAGER
XXX MOTORS INC.
BY: \s\ Shi Xxxx Xxxx
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PRINT NAME: SHI XXXX XXXX
TITLE: CEO
