DISTRIBUTOR / BLENDERS AGREEMENT
EXHIBIT
10.17
This
Distributor / Blenders Agreement ("Agreement") is entered into as of the 1st day
of March, 2009 (the “Effective Date”), by and between PERF GO-GREEN HOLDINGS,
INC., a Delaware Corporation (”Perf"), and INVENTEK COLLOIDAL CLEANERS, Inc. a
Delaware Corporation ("Inventek”) (each of the foregoing is a “Party”
and collectively they are the “Parties”).
RECITALS
A. Whereas
Inventek desires to enter into a strategic relationship with Perf whereby
Inventek shall grant Perf a perpetual royalty free license and exclusive right
to sell worldwide the five (5) products listed in Exhibit A and any additional
products as the Parties shall mutually agree (the “Products”).
B. Whereas
Perf is a marketing and distribution corporation engaged in the sale of certain
biodegradable products to retail and commercial customers worldwide and wishes
to offer a line of private label cleaning products to its customer base;
and
C. Whereas
Inventek is an inventor and manufacturer of certain colloidal-based products
that are used in the manufacturing of natural, biodegradable cleaning products
(“Products”); and
D. The
Parties wish to enter into a Distributor / Blender relationship in which Perf
will sell Products to retail and commercial, as well as federal, state and local
government agencies under the Perf’s private label name Perf Go
Clean.
NOW,
THEREFORE, in consideration of the premises herein contained, as well as the
mutual obligations herein made and other good and valuable consideration, the
receipt and sufficiency of which is acknowledged, the Parties, intending to be
legally bound, hereby covenant and agree as follows:
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1.
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SCOPE
OF SERVICES
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1.1 Perf
shall use its commercially reasonable efforts to solicit orders for Products
from potential customers. Perf shall pay all costs and expenses incurred in
providing such services.
1.2 Perf
shall have an exclusive, non-transferable, (unless agreed to in writing by BOTH
PARTIES), perpetual license and right to sell the Products in accordance with
the terms of this Agreement.
1.3 The
Products are described in Exhibit A of this Agreement. From time to
time both Parties may review and add Products to this list. A line
card of Inventek’s products are described in Exhibit B of this
Agreement.
1.4 From
time to time, and as often as reasonably necessary Perf shall keep Inventek
informed of market developments, competitive activities, any and all
non-proprietary feedback Perf receives from its customers, potential customers,
competitors, suppliers, and downstream in-direct distribution on Inventek, its
Products, and its pricing.
1.5 Each
Party shall provide reasonable support for the sale of Products by
Perf. Inventek will furnish marketing support to assist Perf in
introducing Products and services to customers and potential
customers. Each Party shall pay its own expenses in connection with
any marketing activities.
1.6 Inventek
may provide Perf with other services as may be reasonably requested by Perf,
such as storage and shipping. Prices for such services would be
agreed to in advance.
1.7 Inventek
and its principal stockholders and affiliates, successors and assigns agree not
compete with Perf in the sale of products substantially similar to the Products,
either directly or indirectly.
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2.
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PRICING
AND PAYMENT TERMS.
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2.1 Perf
shall pay to Inventek one million dollars ($1,000,000), for the paid-up
distributorship rights to the Products. Such payment will be made in Perf’s
common stock, with the number of shares determined by utilizing the price of
fifty cents ($0.50) per share which shall equal two million (2,000,000) shares
of Perf’s common stock (the “Shares”). Such Shares shall be issued as
soon as reasonably practical after Perf amends its Certificate of Incorporation
to increase the number of shares of common stock Perf is authorized to
issue. As additional consideration, Perf shall issue to Inventek
warrants to purchase 2,000,000 shares of Perf’s common stock with an exercise
price of fifty cents ($0.50) (the “Warrant”). The Warrant shall be
exercisable for a period of two years and shall not be exercisable until such
time as Perf amends its Certificate of Incorporation in order to increase the
number of shares of common stock Perf is authorized to issue.
2.2 The
Warrant shall be subject to adjustment for stock splits, stock dividends and
other dilative events upon which Perf issues shares of its common stock at a
price per share of less than $0.50. Shares issuable under Perf’s 2008
Share Incentive Plan and pursuant to convertible securities outstanding as of
the date hereof shall be excluded from such anti-dilutive
provisions.
2.3 Perf
shall determine the prices at which it sells the Products. The transfer prices
charged to Perf by Inventek for the Products will be based on the mutually
agreed upon price schedule, identified in the Exhibit A.
2.4 Product
may be delivered to Perf, at the sole discretion of Perf, as a final Product, or
in a form of concentrate to be processed into final Product by Perf or by a
contract packager of Perf’s choice. Concentrate price are identified in the
Exhibit A.
3. TERM. This
Agreement shall terminate five (5) years from the Effective Date of this
Agreement unless extended in accordance with this Section 3 (the “Term,” which
shall include all
extensions thereof). The Term shall be automatically renewed for
successive five (5) year term.
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4. REPRESENTATIONS
AND WARRANTIES
4.1 Intellectual
Property. Schedule C sets forth a list of all patents and
registered trademarks, trade names and copyrights, and all pending applications
for patents, trademarks, and copyrights, owned by or licensed on an exclusive
basis to Inventek (the “Material Intellectual Property”), together with a
summary description in respect of the filing, registration or issuance
thereof. No licenses, sublicenses, covenants or agreements have been
granted or entered into by Inventek in respect of such Material Intellectual
Property. No material patents or material registered trademarks,
trade names or copyrights, other than the Material Intellectual Property,
non-exclusive licenses to commercially available software and to patents and
copyrights embedded in equipment or fixtures, are necessary for the manufacture
and sale of the Products. Inventek has not received notice that any
Material Intellectual Property has been declared unenforceable or otherwise
invalid by any governmental authority. Inventek owns the Material
Intellectual Property purported to be owned by it, free and clear of all
security interests, liens and encumbrances, other than the license granted
hereunder. Except for employees of Inventek, the Material
Intellectual Property has not been disclosed to any person, firm or
company. None of the Material Intellectual Property purported to be
owned by Inventek is currently being challenged in a lawsuit or action before
any court or other governmental body. To Inventek's knowledge after
reasonable investigation, Inventek’s manufacturing of the Products does not
infringe any patent, trademark or copyright of any third
party. Inventek shall defend and indemnify Perf for any liability,
claim or damage incurred by Perf associated with the Material Intellectual
Property.
4.2 Due
Authorization. This Agreement and all actions provided for
herein have been duly authorized by all necessary corporate
actions.
4.3 Consents. The
execution, delivery and performance of this Agreement by each of the Parties and
the consummation of the transactions contemplated by this Agreement will not (i)
require the consent, approval or authorization of any other individual,
corporation, partnership, limited liability company, trust, joint venture or
other entity or public authority; (ii) violate or contravene the organizational
certificates, documents and agreements, as amended to date, of Inventek, (iii)
violate or contravene any law, statute, rule, regulation, order, judgment or
decree to which Inventek is subject, or (iv) conflict with or result in a breach
of or constitute a default by any party under any contract, agreement,
instrument or other document to which Inventek or its shareholders is a party or
by Inventek or its shareholders or any of its or their assets or properties are
bound or subject.
4.4 Products. Inventek
represents and warrants that the Products shall function in
accordance with the specifications provided to Perfand attached as part of
Schedule
D. Inventek
represents and warrants that there has never been any material defects in,
failures to warn, or breaches of warranties or representations with respect to,
any product manufactured, shipped, sold or delivered by Inventek.
5. GENERAL
PROVISIONS
5.1 Entire
Agreement. This Agreement, and its exhibits incorporated by
reference constitute the entire and sole agreement between the Parties with
respect to the subject matter hereof
and supersede any prior agreements, negotiations, understandings, or other
matters, whether oral or written, with respect to the subject matter
hereof. This Agreement cannot be modified, changed, or amended,
except in writing signed by a duly authorized representative of each of the
parties.
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5.2 Investment
Representation. By accepting the Shares and the Warrant,
Inventek acknowledges that it is being taken for its own account as principal,
for investment purposes only, and not with a view to, or for, resale,
distribution or fractionalization thereof, in whole or in part, and no other
person has a direct or indirect beneficial interest in such Shares or Warrant
and such Shares or Warrant may only be transferred, subject to compliance with
the legend set forth below. THE SECURITIES
EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED. SUCH SECURITIES MAY NOT BE SOLD, ASSIGNED, TRANSFERRED,
PLEDGED OR HYPOTHECATED UNLESS REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND APPLICABLE STATE SECURITIES LAWS, OR PERF RECEIVES AN OPINION OF
COUNSEL, IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO PERF, THAT THE
SECURITIES EVIDENCED HEREBY MAY BE SOLD IN ACCORDANCE WITH AN EXEMPTION
THEREUNDER.
Unless the shares on the common stock
issuable upon the exercise of the Warrant are registered under the Securities
Act of 1933, as amended (the “Act”), Inventek, will be
required to provide Perf with an investment letter and the certificates
representing such shares will contain a legend to the effect that Inventek may
not transfer, sell, pledge or hypothecate such shares unless the registration
provisions of the Act have been complied with or Perf has received an opinion of
counsel that such registration is not required.
5.3 Binding
Agreement. This Agreement shall be binding upon and inure to
the benefit of the Parties and their respective successors and assigns. Perf
shall not assign or otherwise transfer its rights under this Agreement without
the prior written consent of Inventek which shall not be unreasonably
withheld.
5.4 [Survival. All
promises, covenants, agreements, representations and warranties contained herein
shall survive the execution and delivery, and the subsequent termination, of
this Agreement.]?
5.5 Notices. Any
notice required or permitted to be given under this Agreement shall be given in
writing by hand delivery, commercial overnight courier or registered or
certified U.S. Mail, to the addresses below, and shall be deemed duly given upon
receipt, or if by registered or certified mail three (3) business days following
deposit in the U.S. Mail. The parties hereto may from time to time
designate in writing other addresses expressly for the purpose of receipt of
notice hereunder.
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| Inventek Colloidal Cleaners | |
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5.6 Severability. If any
provision of this Agreement is declared invalid or unenforceable, such provision
shall be deemed modified to the extent necessary and possible to render it valid
and enforceable. In any event, the unenforceability or invalidity of any
provision shall not affect any other provision of this Agreement, and this
Agreement shall continue in full force and effect, and be construed and
enforced, as if such provision had not been included, or had been modified as
above provided, as the case may be.
5.7 Governing Law and
Jurisdiction. This Agreement shall be governed and construed
for all purposes by the law of the State of New York without regard to the
conflict of law provisions thereof. By executing this Agreement, the
Parties hereby consent to the personal jurisdiction of, and agree that any legal
action arising under this Agreement shall be instituted solely in, the federal
or state district courts situated in the State of New York.
5.8 No
Waiver. Any waiver or consent shall apply only to the specific
instance and for the specific purpose for which given. No failure or
delay in exercising any right, power or remedy hereunder shall operate as a
waiver, nor shall any single or partial exercise of any such right, power or
remedy preclude any other or further exercise thereof or the exercise of any
other right, power or remedy hereunder.
5.9 Signatures. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument. Facsimile signature pages shall be treated as original
signature pages. By executing this Agreement, the signatory
represents and warrants he is duly authorized to execute this Agreement on
behalf of the Party for whom he signs.
IN
WITNESS WHEREOF, the parties, by their duly authorized representatives, have
caused this Agreement to be executed as of the date first written
above.
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Inventek
Colloidal Cleaners LLC
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By:
______________________
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By:
______________________
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▇▇▇▇▇▇▇▇▇, President
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Inventek
Colloidal Cleaners LLC
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By:
______________________
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▇. ▇▇▇▇▇▇▇▇▇, P.E., PhD, COO
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EXHIBITS
INTENIONALLY OMITTED
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