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EXHIBIT 10.2
EXCLUSIVE LEASE REPRESENTATIVE AND DISTRIBUTOR AGREEMENT
THIS EXCLUSIVE LEASE REPRESENTATIVE AND DISTRIBUTOR AGREEMENT (the
"Agreement") is entered into on this 30th day of October, 1997 (the "Effective
Date") between Mitcham Industries, Inc., a Texas corporation ("Mitcham"), and
StrucTec Systems, L.,L.,C., a limited liability company ("StrucTec"), which
parties agree as follows:
INTRODUCTION. StrucTec manufactures and distributes the equipment listed
on SCHEDULE I ("Products") and the parts listed on SCHEDULE I ("Parts") to
customers in the oil and gas industry. Mitcham leases and sells seismic
equipment to companies in the oil and gas industry. StrucTec now wants to
appoint Mitcham the exclusive lease representative of the Products and
distributor of the Products and Parts and Mitcham wants to accept such
appointments. For good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged for all purposes, Mitcham and StrucTec agree
to the terms set forth herein.
1. APPOINTMENT AS EXCLUSIVE LEASE REPRESENTATIVE OF PRODUCTS AND
DISTRIBUTOR OF PRODUCTS AND PARTS. StrucTec hereby appoints Mitcham as the
exclusive representative for StrucTec to Lease the Products throughout the
world (the "Territory") and Mitcham accepts such appointment. A "Lease" or
"Leasing" means a short-term or long-term lease of Products in the Territory
during the Term (as defined in Section 9), and may include lease/purchases with
special financing. StrucTec hereby also appoints Mitcham as the distributor
for StrucTec to sell the Products and Parts in the Territory and Mitcham
accepts such appointment. Except as set forth in Section 3 below, StrucTec
shall not recommend or suggest any competitor of Mitcham or any other third
party as a source from which Products may be Leased or sold or appoint any
other lease representative for the Products or distributor for the Products and
Parts in the Territory; provided, however, that StrucTec shall have the right
to continue to sell Products and Parts to equipment manufacturers (any OEM) and
Mitcham is prohibited from selling or soliciting the sale of Products and Parts
to the Manufacturers and the Veritas Xxxxxxx Office. During the Term of this
Agreement, Mitcham will actively promote and solicit the Leasing and sale of
the Products and Parts.
2. PURCHASE OF PRODUCTS AND PARTS FROM STRUCTEC. Subject to the other
provisions of this Agreement, Mitcham agrees that it will purchase from
StrucTec, and StrucTec agrees that it will sell to Mitcham such Products and
Parts as Mitcham determines it requires to fulfill its obligations hereunder.
StrucTec shall sell to Mitcham such of the Products and Parts as Mitcham shall
order valued after giving effect to the discount(s) set forth on SCHEDULE X.
Xxxxxxx shall receive the applicable discounts set forth on SCHEDULE I attached
hereto with regard to the Products and Parts ordered by Mitcham in each order.
The parties agree that such discounts shall remain in effect throughout the
Term regardless of price changes; provided however, that StrucTec agrees to
give Mitcham 30 days' prior written notice of all price changes on Products and
Parts.
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3. DISCRETION TO LEASE OR SELL IN CERTAIN INSTANCES. Michigan shall have
discretion to accept or reject any potential customer of Products or Parts, as
a result of (a) possessing an insufficient amount of the Products or Parts for
Lease or sale to such third party, (b) reasonably apparent credit risk or any
other reasonable business-related factor, or (c) inability to reach agreement
on the terms of such Lease or sale. Mitcham shall be deemed to have rejected
such a potential customer third party as a result of inability to agree on the
terms of a Lease or sale if Mitcham and the third party are not able to reach
an agreement on such terms within five business days of such third party's
first contact with Mitcham and with regard to the same.
4. PRICING OF PRODUCTS. Neither StrucTec nor Mitcham may require that
the other charge any specific price or follow any pricing guidelines or
establish or require any other specific or general term with regard to the
Leasing or sale of any of the Products, or the provision of any other good or
service by either of them. Notwithstanding the foregoing, Mitcham shall use its
reasonable best efforts to have a reasonable quantity of the Products available
for lease at prices which Mitcham believes reflects the supply of and demand
for the Products, based upon market conditions and forecasted sales.
5. WARRANTY ON PRODUCTS AND PARTS.
5.1. StrucTec warrants to Mitcham all of the Products and Parts sold
by StrucTec to Mitcham as per StrucTec's current standard warranty terms
attached hereto as SCHEDULE 5.1. Such warranty shall be assignable by Mitcham
to any customer, including Lease customers that subsequently buy the Products,
during the period covered by the warranty, StrucTec shall perform all services
and repairs on Products and Parts under warranty at no cost to Mitcham or its
customers.
5.2. The warranty period shall begin from and after the date of first
use of the Products or Parts by a lease customer, but only on the condition
that such use or installation is made within 30 days from the date such Product
or Parts is received by Mitcham.
5.3. Mitcham has no authority whatsoever, express or implied, to make
warranties other than those provided for herein without prior written
permission from StrucTec.
6. TESTING OF PRODUCTS: REPAIRS. Mitcham shall first endeavor to perform
standard maintenance checks of battery packs that are included in the Products
after the termination of a Lease or as otherwise needed, to determine when
repairs are necessary, but may in some cases request that StrucTec perform its
standard maintenance check of Products. In the case of buoys that are included
in the Products, StrucTec will perform its standard maintenance check of such
Products and inform Mitcham of any necessary repairs. Mitcham shall pay $25 for
each of the Products checked by StrucTec, as well as labor costs at a rate of
$45 per hour for StrucTec's repair of any Products that are not covered by
StrucTec's standard warranty, and any reasonable and ordinary freight incurred
by StrucTec with regard to such Products. After such maintenance
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check and any needed repairs, StrucTec shall ship such Products to Mitcham at
Mitcham's expense to a location designated by Mitcham.
7. PURCHASE ORDER ACCEPTANCE AND PAYMENT.
7.1. Mitcham shall confirm with StrucTec all relevant delivery
information before it submits to StrucTec a purchase order for any of the
Products.
7.2. StrucTec shall have the right to reject, in whole or in part,
any purchase order from Mitcham.
7.3. All sales by StrucTec to Mitcham shall be payable in U.S.
dollars on an open 30 day account, said account period to be determined from
the date of shipment from StrucTec.
8. ADVERTISING; TRADE SHOWS. To actively promote and solicit the Leasing
and sale of Products, Mitcham agrees to include the Products by description or
illustration, including the use of photographs, in such of its advertisements in
trade and industry publications as it deems appropriate. Mitcham further agrees
to represent the Products at trade shows, including SEG and others, subject to
StrucTec's obligation to provide Product samples and demonstration units at
StrucTec's actual cost. Mitcham shall obtain StrucTec's prior approval of all
such advertisements and promotional materials.
9. TERM OF AGREEMENT. Unless sooner terminated under Section 16 hereof,
this Agreement shall be effective for a period of two years from and after the
Effective Date (the "Term").
10. RIGHTS TO USE NAME. Mitcham shall have the right during the Term of
this Agreement to (a) identify itself as the exclusive lease representative and
distributor of the Products, and (b) use all StrucTec trademarks and tradenames
related to the Products that Mitcham Leases or sells to third parties in
advertisements and sales and promotional materials; provided, however, all such
StrucTec trademarks and tradenames related to the Products are and shall remain
the sole and exclusive property of StrucTec, and Mitcham shall have no rights
therein other than as specifically set forth in this Agreement.
11. RELATIONSHIP OF THE PARTIES; NO AGENCY. Neither Mitcham nor StrucTec
shall have any authority to control, act for or obligate the other in any way,
except as set forth herein. This Agreement shall not be construed as creating
an agency, partnership or joint venture between Mitcham and StrucTec. Neither
Mitcham nor StrucTec (or any of their employees or representatives) shall be
construed as an agent of the other.
12. INDEMNITY. StrucTec and Mitcham hereby agree to the following
indemnification obligations:
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12.1 Mitcham shall indemnify and hold harmless StrucTec, its
directors, officers, employees and affiliates (hereinafter the "StrucTec
Indemnitees") against any and all liability, loss, damages, fines, penalties,
costs and expenses (including, without limitation, court costs and reasonable
attorneys fees) incurred by any of the StrucTec Indemnitees as a result of any
breach or violation by Mitcham or others acting on its behalf of any obligation,
covenant, representation or warranty of Mitcham set forth in this Agreement.
12.2 StrucTec shall indemnify and hold harmless Mitcham, its
directors, officers, employees and affiliates (hereinafter the "Mitcham
Indemnitees") against any and all liability, loss, damages, fines, penalties,
costs and expenses (including, without limitation, court costs and reasonable
attorneys fees) incurred by any of the Mitcham Indemnitees (i) as a result of
any breach or violation by StrucTec or others acting on its behalf of any
obligation, covenant, representation or warranty of StrucTec set forth in this
Agreement, (ii) for infringement or claim of infringement of any claimed patent
rights relating to the Products, of (iii) that arise out of or are based upon
losses, claims, damages or liabilities resulting from the design, manufacture,
and/or operation of any Products, from the failure of any such Products to
satisfy any warranties (whether expressed or implied, if any), or from any
defect in the Products.
12.3 Either party seeking indemnification hereunder shall notify the
other party in writing of any legal action commenced against the StrucTec
Indemnitees or the Mitcham Indemnitees, as the case may be, as soon as
practicable. The Indemnity obligations of Mitcham and StrucTec shall survive the
expiration or termination of this Agreement.
13. Notice.
13.1 The addresses of Mitcham and StrucTec for purposes of giving any
notice or other communication under this Agreement are as set forth below. Any
such notice or communication shall be in writing and signed by an officer or
authorized representative of Mitcham or StrucTec, as applicable. Any such
notice or communication shall be deemed to have been given (i) immediately upon
physical delivery to the addressee, and (ii) three days after such notice or
communication has been deposited in the United States mail, addressed as set
forth below, first-class postage prepaid, certified mail, return receipt
requested.
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Mitcham: Mitcham Industries, Inc.
X.X. Xxx 0000
Xxxxxxxxxx, Xxxxx 00000
Attn: Xxxxx X. Xxxxxxx, Xx.
Facsimile: (000) 000-0000
StrucTec: StrucTec Systems, L.L.P.
0000 Xx. Xxxxxxxx Xx.
Xxxxxxxxxxx, Xxxxx 00000
Attn: Xxxx Xxxxxx
Facsimile: (000) 000-0000
Notice may be served in any other manner, including telex, telecopy,
telegram, etc., but shall be deemed delivered and effective as of the time of
actual delivery.
13.2. Mitcham and StrucTec represent and warrant to each other
that the execution, delivery and performance of this Agreement have been
authorized by all necessary corporate action, and that this Agreement is a
valid and binding obligation of each of them. Mitcham and StrucTec represent
and warrant to each other that, to the best of their knowledge, neither the
execution and delivery of nor the performance of this Agreement will conflict
with or result in a breach of any (i) law or of any regulation, order, writ,
injunction, or decree of any court or government authority of any country or
state in which this Agreement is to be performed, or (ii) any agreement to
which either of them is a party.
13.3. This Agreement represents the entire agreement between
Mitcham and StrucTec with regard to the subject matter hereof, and may not be
amended, modified or terminated except by a written document signed by duly
authorized officers of Mitcham and StrucTec.
13.4. This Agreement may not be assigned by either party hereto:
except that Mitcham may assign its rights under this Agreement to any
subsidiary or affiliate.
14. CONFIDENTIAL INFORMATION. Mitcham agrees that it will maintain in
strict confidence, and not disclose to any other person or firm except with the
prior written permission of an authorized officer of StrucTec, any and all
information received from StrucTec or prepared by Mitcham for StrucTec
regarding prices, customer lists, business plans, strategies, forecasts,
studies, reports and any other information which may be considered confidential
or proprietary by StrucTec and which is not publicly available. The
confidentiality obligation of Mitcham under this Section 14 shall survive the
expiration or termination of this Agreement. If Mitcham receives a request to
disclose all or any part of the confidential information under the terms of a
subpoena or order issued by a court or by a governmental body. Mitcham agrees
(i) to notify StrucTec immediately of the existence, terms, and circumstances
surrounding such request, (ii) to consult with StrucTec on the advisability of
taking legally available steps to resist or narrow
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such request, and (iii) if disclosure of such information is required to
prevent Mitcham from being held in contempt or subject to other penalty, to
furnish only such portion of the information as its legal counsel advises
Mitcham it is legally compelled to disclose.
15. FORCE MAJEURE. All transactions under this Agreement and all
purchase orders accepted hereunder are subject to modification or cancellation
in the event of strikes, labor disputes, lock-outs, accidents, fires, delays in
manufacturing or in transportation or delivery of materials, floods, severe
weather or other acts of God, embargoes, governmental actions, or any other
cause beyond the reasonable control of the party concerned, whether similar to
or different from the causes above enumerated; and including any special,
indirect, incidental, or consequential damages arising from StrucTec's delay in
delivery or failure to deliver as a result of any such cause.
16. TERMINATION. This Agreement may be terminated at any time:
a. by the mutual agreement of the parties;
b. by either party upon giving a notice of termination to the other
party if the other party fails to perform, observe or comply with any of its
obligations or undertakings that are contained in this Agreement, and such
failure has not been cured within fifteen (15) days after the terminating party
has given a written notice specifying such failure to the other party; or
c. by either party if the other party ceases doing business as a
going concern, makes an assignment for the benefit of creditors, admits in
writing its inability to pay its debts as they become due or such fact is
determined by judicial proceedings, files a voluntary petition in bankruptcy, is
adjudicated a bankrupt or an insolvent, files a petition seeking for itself any
reorganization, rearrangement, composition, readjustment, liquidation,
dissolution, or similar arrangement under any present or future statute, law
or regulation, or files an answer admitting the material allegations of a
petition filed against it in any such proceedings, consents to or acquiesces in
the appointment of a trustee, receiver, or liquidator of, all or any
substantial part of its assets or properties, or if it or the holders of its
common stock shall take any action contemplating its dissolution or liquidation.
17. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE
UNITED STATES OF AMERICA AND THE STATE OF TEXAS. MITCHAM HEREBY IRREVOCABLY
CONSENTS TO BE SUBJECT TO THE PERSONAL JURISDICTION OF ANY UNITED STATES, STATE
OR LOCAL COURT SITTING IN XXXXXX COUNTY, TEXAS, U.S.A. IN CONNECTION WITH ANY
ACTION TO DETERMINE ANY DISPUTE ARISING UNDER THIS AGREEMENT OR TO ENFORCE THE
PROVISIONS HEREOF. VENUE FOR ALL SUITS AND ACTIONS ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT SHALL BE PROPER ONLY IN THE STATE AND FEDERAL
COURTS SITTING IN XXXXXX COUNTY, TEXAS. EACH PARTY HERETO HEREBY IRREVOCABLY
CONSENTS TO THE ASSERTION OF PERSONAL JURISDICTION BY SUCH COURTS OVER SUCH
PARTY FOR THE LIMITED PURPOSES OF A SUIT ARISING IN CONNECTION WITH THIS
AGREEMENT, BUT NEITHER SUCH PARTY WAIVES REQUIREMENT FOR SERVICE OF PROCESS IN
THE MANNER PRESCRIBED BY LAW.
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18. MISCELLANEOUS.
18.1 WAIVER. The failure of a party to insist upon strict performance
of any provision of this Agreement shall not constitute a waiver of, or
estoppel against asserting, the right to require performance in the future. A
waiver or estoppel in any one instance shall not constitute a waiver or
estoppel with respect to a later breach.
18.2 SEVERABILITY. If any of the terms and conditions of this
Agreement are held by any court of competent jurisdiction to contravene, or to
be invalid under, the laws of any political body having jurisdiction over the
subject matter hereof, such contravention or invalidity shall not invalidate
the entire Agreement. Instead, this Agreement shall be construed by reforming
the particular offending provision held to be invalid so that it or they are
valid and enforceable while remaining as faithful as possible to the original
intent of the provision or provisions, the rights and obligations of the
parties shall be construed and enforced accordingly, and this Agreement shall
remain in full force and effect.
18.3 CONSTRUCTION. The headings in this Agreement are inserted for
convenience and identification only and are not intended to describe,
interpret, define, or limit the scope, extent, or intent of this Agreement or
any other provision hereof. Whenever the context requires, the gender of all
words used in this Agreement shall include the masculine, feminine, and neuter,
and the number of all words shall include the singular and the plural.
18.4 COUNTERPART EXECUTION. This Agreement may be executed in any
number of counterparts with the same effect as if all the parties had signed
the same document. All counterparts shall be construed together and shall
constitute one and the same instrument.
18.5 CUMULATIVE RIGHTS. The rights and remedies provided by this
Agreement are cumulative, and the use of any right or remedy by any party shall
not preclude or waive its right to use any or all other remedies. These rights
and remedies are given in addition to any other rights a party may have by law,
statute, in equity or otherwise.
18.6 RELIANCE. All factual recitals, covenants, agreements,
representations and warranties made herein shall be deemed to have been relied
on by the parties in entering into this Agreement.
18.7 NO THIRD PARTY BENEFICIARY. Any agreement herein contained,
express or implied, shall be only for the benefit of the undersigned parties
and their permitted successors and assigns, and such agreements and assumption
shall not inure to the benefit of the obligees of any other party, whomsoever,
it being the intention of the undersigned that no one shall be deemed to be a
third party beneficiary of this Agreement.
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This Agreement has been executed on behalf of the parties by their duly
authorized officers as of the date first written above.
STRUCTEC SYSTEMS, L.L.C.
STRUCTEC:
By: /s/ XXXX XXXXXX
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Xxxx Xxxxxx, President
MITCHAM:
MITCHAM INDUSTRIES, INC.
By: /s/ XXXXX X. XXXXXXX, XX.
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Xxxxx X. Xxxxxxx, Xx.,
Chairman of the Board, Chief
Executive Officer and President
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SCHEDULE I
STRUCTEC SYSTEMS PRODUCTS/PARTS AND DISCOUNTS
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PRODUCT/PART DESCRIPTION/USE DISCOUNT
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SS-2500XL System StrucTec Polyethylene Buoy System, 1200AH Solar, 25AH Battery, Strobe Light 15.0%
Use with RSR/MRX & SERCEL PSU
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SS-1500XP System StrucTec Polyethylene Buoy with 25 AH Battery Pack (no solar power) 15.0%
Use with RSR/MRX & SERCEL PSU
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SS-B1500 StrucTec Polyethylene Buoy Only 15.0%
Use with RSR/MRX, SERCEL SE6. SS-1500XP Replacement
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SS-B2500 StrucTec Polyethylene Buoy 15.0%
Use as replacement buoy on SS-2500XL system
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SS-M2500 StrucTec 25 AH Battery Assembly with Y Connector Lead 15.0%
Use as replacement or spare on SS-2500 Buoy
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SS-SP-4-1200 StrucTec 1200 MA Solar Panel Assembly 15.0%
Use as replacement for SS-2500 system
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SS-SL-1 StrucTec high Intensity Strobe Light 15.0%
Use as replacement light on SS-2500-SP
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SS-CL-1 StrucTec Quick Discount Stainless V Clamp 15.0%
Use a replacement clamp on SS-2500XL. SS-1500XP
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SS-KW-1 StrucTec Rough Seas Keel Weight 15.0%
Use on SS-B1500, SS-CL-1 required
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SS-SH-1 StrucTec Nylon Strap Handle complete with Clamp 15.0%
Use on SS-2500XL, SS-1500XP, SS-M2500 battery
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SS-YC-1 StrucTec "Y" Connector with I/O compatible 6 Pin Connector 15.0%
Use on SS-2500XL, SS-1500XP, SS-M2500 battery
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SS-6C10 StrucTec 6 pin I/O compatible field service connector 15.0%
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SS-TS-15 StrucTec 15" Heavy Duty Tarp Strap 15.0%
Use on all buoys
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40AH Land Battery Pack (No Solar Panel) 15.0%
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4AH Land Battery Pack with Solar Panel 15.0%
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Battery Charger - 12 Station 15.0%
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SCHEDULE 5.1
STRUCTEC WARRANTY TERMS
StrucTec shall provide on all Products and Parts a 12-month limited warranty
against defects in workmanship and as to defects in materials and parts as
follows:
1. All products are warranted for 1 year from date of purchase to be free of
defects in material and workmanship unless specified differently below.
2. The following items are warranted for 6 months from date of purchase to be
free of material and workmanship. Strobe lights, and batteries not charged
with the StrucTec Systems SC-2000 charger.
3. This warranty applies only to the original purchaser from the manufacturer
or its distributors.
4. This warranty shall not apply to any products or parts, which have been
subject to accident, negligence, alteration, abuse, misapplication,
chemicals, misuse, or discoloration of products due to exposure to sun.
5. StrucTec Systems LLC assumes no liability except for the repair or
replacement of parts as specified above. Purchaser to ship defective parts
to StrucTec Systems transportation prepaid. Purchaser shall be responsible
for freight charges for return of merchandise to purchaser.
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EXHIBIT 21
SUBSIDIARIES OF THE COMPANY
Mitcham Canada, Ltd.
