PURCHASE AND SALE AGREEMENT
EXHIBIT 10.6
This
Purchase and Sale Agreement (the "Agreement") is entered into as of the 10th day of
December, 2008, by and between Xxxxxxxx Educational Archaeological Research
Expeditions, Inc. ("SeaRex") and Seafarer Exploration, Inc.
("Seafarer").
RECITALS
WHEREAS SeaRex desires to sell
proprietary historical and archival research pertaining to a certain project
that has previously been referred to as the DaVinci Project (the "DaVinci
Project"); and
WHEREAS Seafarer desires to
purchase the proprietary historical and archival research pertaining to the
DaVinci Project.
NOW THEREFORE, in exchange for
the consideration defined below, the parties agree to the
following:
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1.
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Term. The term of this
Agreement (the "Term") shall commence and be in full force and effect as
of December 10, 2008 (the "Effective Date") and the Agreement will
continue indefinitely until terminated according to Paragraph
7.
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2.
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Definition.
The term the DaVinci Research Materials ("Davinci Research Materials")
shall refer to any and all of the documents, data, records, reports, maps,
compilations, computer models, writings and materials that are in any way
related to the DaVinci Project that have been accumulated by SeaRex, any
persons known to SeaRex, or any employees, contractors, consultants,
officers, directors, agents, affiliates, or associates of
SeaRex.
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3.
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Representations
and Warranties of SeaRex.
SeaRex represents and warrants that the following statements arc
true and correct as of the Effective
Date:
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a.
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SeaRex
has exclusive ownership and control of all of the DaVinci Research
Materials.
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b.
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SeaRex,
or any person or entity known to SeaRex, has never previously
disseminated, copied, distributed, or shared any of the contents of the
DaVinci Research Materials with any third
party.
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c.
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All
of the information contained in the DaVinci Research Materials is
currently owned by SeaRex and no copyright or other intellectual property
rights violations exist with regards to the DaVinci Research
Materials.
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d.
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SeaRex
expressly agrees to indemnify Seafarer and hold Seafarer harmless from any
action relating to any copyright or other intellectual property rights
violations or lawsuits arising from the conduct of SeaRex with respect to
the DaVinci Research Materials.
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e.
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SeaRex
will deliver all copies and originals of the DaVinci Research Materials to
Seafarer, and SeaRcx will not retain any copies or means of making
reproductions of the DaVinci Research
Materials.
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f.
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Upon
delivery of the DaVinci Research Materials, SeaRex unconditionally,
absolutely and irrevocably transfers and assigns all rights, title,
interests, or benefits to the DaVinci Research Materials to Seafarer and
agrees to relinquish and forever forgo any rights, title, interests or
benefits whatsoever from the DaVinci Research
Materials.
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g.
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SeaRex,
by entering into this Agreement, understands and agrees that should any
third party gain access to the DaVinci Research Materials, the damage to
Seafarer would be irreparable and SeaRex covenants that it will never
undertake any new research or attempt to ever reproduce anything relating
to the DaVinci Research Materials for any other party without the express
written permission of Seafarer.
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h.
The DaVinci Research Materials contain sufficient data, information and
documentation as to the approximate location of the DaVinci Project so
that Seafarer will not have to pay any additional fees to research the
Davinci Project.
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4.
Consideration. Seafarer may, in its sole discretion and if funds are
available, pay SeaRex a fee of two hundred and fifty thousand dollars
($250,000.00) (the "Upfront Fees") less any funds previously paid to
SeaRex in exchange for the Davinci Research Materials. SeaRex acknowledges
that it previously received ten thousand dollars ($10,000) from Seafarer
towards the purchase of the DaVinci Research Materials. The remaining
Upfront Fees will be paid in the following
increments:
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a)
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Ten
thousand dollars ($10,000) will due upon execution of this
Agreement;
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b)
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Thirty
thousand dollars ($30,000) will be due by December 31, 2008 unless the
parties mutually agree to extend the due
date;
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c)
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Fifty
thousand dollars ($50,000) will be due by February 15, 2009 unless the
parties mutually agree to extend the due date; and
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One
hundred and fifty thousand dollars ($150,000) will be due by March 31,
2009 unless the parties mutually agree to extend the due
date.
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In
addition to the Upfront Fees, Seafarer agrees to pay SeaRex fourteen percent
(14%) of the net liquidated value of any items actually recovered from the
DaVinci Project less any and all expenses incurred by Seafarer relating to the
DaVinci Project (the "Contingent Fees"). The Contingent Fees will be paid to
SeaRex at the time that Seafarer actually receives funds.
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5.
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Exclusivity of DaVinci Research Materials.
Seafarer will have exclusive rights to the DaVinci Research
Materials during the Term of this Agreement. Moreover, SeaRex specifically
agrees and acknowledges that it and/or its affiliates, associates or any
person or entity known to SeaRex either now or in the future will not
approach, have any contact with, discussions with, meet with, conference
with or have any dialogue of any kind with any persons, entities or third
parties regarding the sale of the DaVinci Research Materials during the
Term of this Agreement.
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6.
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Delivery by SeaRex of
DaVinci
Research
Materials. SeaRex agrees to deliver all of the DaVinci Research
Materials to Seafarer at the time that Seafarer pays SeaRex the Upfront
Fees described in Paragraph 5(b). Seafarer will return
the DaVinci Research Materials to SeaRex if the Agreement is terminated
according to Paragraph 7.
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7.
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Right to Terminate the
Agreement. If Seafarer does not pay SeaRex the Upfront Fees
by the due
dates described in Paragraph 5, then SeaRex, in its sole
discretion, may terminate the
Agreement by
providing written notice to Seafarer. If SeaRex terminates the Agreement
then it agrees that within five (5) business days of providing written
notice of termination it will pay back any and all funds that it has
received from Seafarer. SeaRex specifically acknowledges that if
Seafarer does not pay the Upfront Fees by any of the due dates described
in Paragraph 5, then Seafarer will not have any further financial
obligations whatsoever or owe any consideration or fees of any kind to
SeaRex.
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8.
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Legal
Matters.
This Agreement shall be interpreted under and governed by the laws
of the State of Florida.
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9.
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Venue. The Parties hereby agree that the
venue of any action, proceeding, counterclaim, crossclaim, or other
litigation relating to, involving, or resulting from the enforcement of
this Agreement shall be in Hillsborough County, Florida
only.
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10.
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Binding Effect. This
agreement shall be binding upon the parties and their respective personal
representatives, heirs, successors and
assigns.
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11.
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Modification and Waiver. This Agreement contains
the entire Agreement of the parties and no change of any term or
provisions of this Agreement shall be valid or binding unless the same
shall be in writing and signed by all of the parties hereto. No waiver of
any of the terms of this Agreement shall be valid unless signed by the
party against whom the waiver is asserted. A waiver on any one occasion
shall not he constructed as a bar to or a waiver of any right on any
future occasion.
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12.
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Attorney's Fees. In the event that any party is
required to engage in services of legal counsel to enforce the terms and
conditions of this Agreement against any other party to this Agreement,
regardless of whether such action results in litigation, the prevailing
party shall be entitled to reimbursement of its reasonable attorney's fees
and costs.
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13.
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Counterparts. This Agreement may be
executed in any number of counterparts, each of which shall be an original
but all of which shall constitute one and the same
instrument.
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14.
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Notices. Notice required or permitted to
be given pursuant to the terms of this Agreement shall be deemed received
five (5) days after deposit into the United States mail, postage prepaid,
certified return receipt requested and addressed as provided below, or
upon receipt if delivered by any other
method:
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To Seafarer:
Seafarer
Exploration, Inc.
Attention:
Xxxx Xxxxxxx
00000 X.
Xxxx Xxxxx X xxxxxxx, Xxxxx 000X
Xxxxx,
XX 00000
To
SeaRex:
Xxxxxxxx
Educational Archaeological Research Expeditions, Inc.
Attention:
Xxxxxxx X. Xxxxxxxx or Xxxxx X. Xxxxxxxx
00 Xxxxxx
Xxxxx
Xx.
Xxxxxxxxx, XX 00000
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15.
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Invalid Provision. The invalidity or
unenforceability of any particular provision of this Agreement shall not
affect the other provisions hereof, and the Agreement shall be constructed
in all respects as if the invalid or unenforceable provisions were
omitted.
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16.
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Equitable Remedies; Remedies
Cumulative. All breaches of this Agreement are subject to
specific enforcement, injunction and other forms of equitable relief,
without prejudice to the right to seek damages or other remedies. The
parties agree that monetary damages would not be sufficient remedy for
a breach of this
Agreement. The rights and remedies provided by this Agreement arc
cumulative and the use of any one right or remedy by any party shall not
preclude or waive the right to use any other remedies. These rights and
remedies are given in addition to any other rights the parties may have by
law, statute, ordinance or otherwise. The failure of any party to seek
redress for violation of or to insist on the strict performance of any
covenant or condition of this Agreement shall not prevent a subsequent
act, which would have originally constituted a violation, from having the
effect of an original violation.
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17.
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Entire Agreement. This Agreement constitutes the
entire agreement between the parties pertaining to the subject matter
hereof and supersedes and cancels any prior communications,
representations, understandings, and agreements, whether verbal or in
writing, between the parties. No modifications of or changes to this
Agreement shall be binding, nor can any of its provisions be waived,
unless agreed to in writing by the
parties.
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18.
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Advice of Counsel. Each party signing
this Agreement:
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a. understands
that this Agreement contains legally binding provisions;
b. has
had the opportunity to consult with a lawyer; and
c.
has either consulted a lawyer or consciously decided not to consult a
lawyer.
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19.
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Miscellaneous. Whenever
the single number is used in this Agreement and when required by the
context, the same shall include plural and vice versa, and the masculine
gender shall include the feminine and neuter genders and vice versa. The
headings in this Agreement are inserted for convenience only and are in no
way intended to describe, interpret, define or
limit the scope, extent or intent of this Agreement or any
provision of this Agreement. Each and all of the covenants, terms,
provisions and agreements in this Agreement contained shall be binding on
and inure to the benefit of the parties and, to the extent permitted by
this Agreement, their respective heirs, legal representatives, successors
and assigns.
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IN WITNESS WHEREOF, the parties
have caused this Agreement to be executed on the date stated on the first page
of this Agreement in a manner appropriate for each.
SeaRex:
/s/ Xxxxxxx X Xxxxxxxx
Xxxxxxx X Xxxxxxxx
Xxxxxxx X Xxxxxxxx
President
Xxxxxxxx
Educational Archaeological Research Expeditions, Inc.
/s/ Xxxxx X Xxxxxxxx
Xxxxx X Xxxxxxxx
Vice President
Xxxxxxxx Educational Archaeological Research Expeditions,
Inc.
Seafarer:
/s/
Xxxx Xxxxxxx
Xxxx Xxxxxxx
Chief
Executive e Officer Seafarer Exploration, Inc.
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