Exhibit 10.05
AGREEMENT
This Agreement (this "Agreement") is entered into this 11th day of June 2003,
by and between International Products, Inc., a Connecticut corporation, ("IPI"),
Xxxxx & Partners, L.L.C., a New York limited liability company ("O&P") and Xxxxx
Xxxxxxx, having offices at 00 Xxxxxx Xxxxxx, Xxx Xxxx, X.X. 00000 ("Xxxxxxx").
W I T N E S S E T H:
WHEREAS, IPI has acquired from A.D.M. Tronics Unlimited, Inc., a Delaware
corporation certain rights to market a shave cream for use by individuals with a
condition known as pseudofolliculitus barbae (the "Ethnic Shaving Cream") and a
pain relieving lotion for temporary relief of pain associated with minor xxxxx
(the "Burn Lotion), the Ethnic Shaving Cream and the Burn Lotion being
hereinafter collectively referred to as the "IPI Products"; and
WHEREAS, O&P has agreed to provide skills and services as hereinafter described
in connection with the marketing and creative processes in connection with the
promotion and sale by IPI of the IPI Products on the terms and conditions
hereinbelow set forth; and
WHEREAS, IPI desires to retain O&P to provide such skills and services on the
terms and conditions hereinbelow set forth.
NOW THEREFORE, in consideration of the foregoing and of the mutual covenants and
agreements contained herein, the parties hereto covenant and agree as follows:
1. Services and Skills to be Provided by O&P.
a. For a period of four years from the date hereof (the "Service
Period"):
i. O&P shall use its "best efforts" in all
administrative, marketing and creative areas to bring
the Products to market and maximize IPI's
profitability in connection therewith.
ii. O&P will be responsible for staffing necessary
personnel (including management, administrative,
marketing, creative and any ancillary functions to the
extent that that IPI obtains the necessary financial
resources therefor.
iii. O&P will be responsible for developing marketing
strategies, product names, packaging and graphics and
shall produce necessary or desirable consumer
advertisements, in- store displays, out-door or other
multi-media for local or national publication.
iv. O&P will look for other opportunities with regard to
products or brands for procurement by IPI for the
purpose of marketing them to consumers. Such products
or brands, may be for sale by others or would be
available from others who would relinquish the rights
to International Products to market such brands or
products.
b. The services and skills to be provided hereunder shall be on a
non-exclusive basis. IPI expressly acknowledges that both
O&P and Xxxxxxx have rendered and intend to continue to render
similar skills and services to others including, but not
limited to, competitors and potential competitors of IPI.
2. Consideration. In full consideration for the skills and services to be
rendered by O&P hereunder
a. IPI shall cause to be issued or transferred to Xxxxxxx 100,000
shares (the "NEAI Shares") of the common stock, $.00001 par
value, of New England Acquisitions, Inc., a Florida
corporation (NEAI");
b. IPI shall pay O&P $1,000 upon the execution hereof and IPI
shall make five additional payments of $1,000 to O&P on the
eleventh day of each of the next succeeding five calendar
months, all of such amounts to be used for the purposes
described in the "Cost Estimate" dated June 11, 2003 furnished
by O&P to IPI which document shall be deemed to be a part of
this Agreement; and
c. To the extent that sales of IPI Products exceed $1,000,000
during the Service Period, IPI shall, in addition to the
payments described in subsections a. and b. of this Section 2,
pay O&P 6% of such excess sales. Any such payments shall be
made by IPI to O&P not less frequently than quarterly. For
purposes hereof, sales of IPI Products shall be net of
returns, allowances and discounts and shall be determined in
accordance with generally accepted accounting principals,
consistently applied.
3. Effective Date. The Effective Date of this Agreement shall be the date
this Agreement is executed by all parties.
4. Investment Representations and Warranties and Acknowledgements. O&P and
Xxxxxxx hereby represent, warrant and acknowledge that:
a. The NEAI Shares will be acquired by Xxxxxxx for his own
account and not with a view to or for sale or other
disposition in connection with any transaction that will not
be exempt form the registration requirements of the Securities
Act of 1933 (the "Securities Act") and any applicable state
securities laws.
x. Xxxxxxx and O&P are capable of evaluating the merits and risks
of an investment in the NEAI Shares and have such knowledge,
experience and skill in financial and business matters that it
is capable of evaluating the merits and risks of the
investment in NEAI Shares and the suitability of the NEAI
Shares as an investment and Xxxxxxx can bear the economic risk
of an investment therein for an indefinite period of time. No
guarantees have been made or can be made with respect to the
future value, if any, of the NEAI Shares or the profitability
or success of the business of NEAI.
x. Xxxxxxx understands that the NEAI Shares will not have been
registered under the Securities Act or any applicable state
securities laws, that the NEAI Shares will be characterized as
"restricted securities" under federal securities laws, and
that under such laws and applicable regulations the NEAI
Shares cannot be sold or otherwise disposed of without
registration under the Securities Act or an exemption
therefrom.
x. Xxxxxxx is familiar with Rule 144 promulgated under the
Securities Act, as currently in effect, and understands the
resale limitations imposed thereby and by the Securities Act.
e. Stop transfer instructions will be issued to the transfer
agent for securities of NEAI (or a notation may be made in the
appropriate records of NEAI) in connection with the NEAI
Shares, but only to the extent customary for securities which
are "restricted securities."
x. Xxxxxxx understands that NEAI is the only person that can
register the NEAI Shares under the Securities Act and NEAI has
no obligation or intension to do so.
x. Xxxxxxx consents to the placement of a legend on the
certificate evidencing the NEAI Shares stating that they have
not been registered under the Securities Act or under any
other applicable securities laws, setting forth or referring
to the restrictions on transferability and sale thereof and
including placement of any additional language as may be
required by applicable state securities laws.
h. IPI and Xxxxxxx have had the opportunity to downloaded, print
and carefully review NEAI's filings made with the Securities
and Exchange Commission from its website xxx.xxx.xxx.
i. IPI and Xxxxxxx have had the opportunity to ask questions and
receive answers from NEAI's president with respect to NEAI.
5. Confidential Information.
a. For purposes of this Agreement, "Confidential Information"
shall mean any information, whether or not protected by
patents or copyright (including, without limitation, programs,
files, specifications, drawings, procedures, xxxx of
materials, artwork, customer lists, supplier lists, channel of
distribution, pricing, models, samples, business information,
records and technical information or other data) that is
provided by IPI to O&P or developed by O&P in connection with
this Agreement.
b. IPI shall, and shall cause its employees to, treat
Confidential Information as privileged and confidential and
shall not, without the prior consent of the other party,
disclose, or cause to be disclosed, Confidential Information
to any person or entity, except that Confidential Information
may be disclosed:
i. to IPI's Affiliates, agents, directors, officers,
employees, representatives, accountants, counsel or
special counsel to whom such documents or
information is needed to be disclosed in connection
with the performance, enforcement or evaluation of
this Agreement and who have been instructed to have
a duty to keep such documents or information
confidential in accordance with the terms hereof;
ii. to the extent required pursuant to applicable law or
any governmental authority; provided that, if
practicable, O&P shall give prior notice thereof to
IPI and, if so requested by IPI, shall cooperate
with IPI to obtain a protective order or other
ruling so as to prevent disclosure of all or a
portion of the documents or information required to
be disclosed;
iii. to the extent such Confidential Information is
independently developed by the recipient or lawfully
received from an unrelated source having the right
to so furnish such Confidential Information; and
iv. to the extent Confidential Information become
generally available to the public without breach of
this Agreement.
6. Entire Agreement. This Agreement contains the complete agreement among
the parties with respect to the transactions contemplated hereby and
supersedes all prior agreements and understandings among the parties
with respect to such transactions.
7. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be
deemed an original, and such counterparts together shall constitute only
one original.
8. Notices. All notices, demands, requests, or other communications that
may be or are required to be given, served or sent by any party to any
other party pursuant to this Agreement shall be in writing and shall be
mailed by first-class, registered or certified mail, return receipt
requested, postage prepaid, or transmitted by hand delivery or
facsimile, addressed as follows:
If to IPI:
International Products, Inc.
0 Xxxxx Xxxx
Xxx Xxx, XX 00000
Attn: Xxxx Xxxxx
Facsimile: 000-000-0000
IF TO O&P
Xxxxx & Partners, L.L.C.
00 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: 000-000-0000
IF TO XXXXXXX
Xxxxx Xxxxxxx
00 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: 000-000-0000
Each party may designate by notice in writing a new address to which any notice,
demand, request or communication may thereafter be so given, served or sent.
Each notice, demand, request or communication that is mailed, delivered or
transmitted in the manner described above shall be deemed sufficiently given,
served, sent and received for all purposes at such time as it is delivered to
the addressee, with the return receipt, the delivery receipt, the affidavit of
messenger, or (with respect to facsimile) the confirmation of receipt being
deemed conclusive evidence of such delivery, or at such time as delivery is
refused by the addressee upon presentation.
9. Severability. If any provision of this Agreement is held to be illegal,
invalid or unenforceable under present or future laws effective during
the term hereof, the provision shall be fully severable and this
Agreement shall be construed and enforced as if such illegal, invalid or
unenforceable provision were never a part hereof; and the remaining
provisions hereof shall remain in full force and effect and shall not be
affected by the illegal, invalid or unenforceable provision or by its
severance herefrom. Furthermore, in lieu of such illegal, invalid or
unenforceable provision, there shall be added automatically as part of
this Agreement a provision as similar in its terms to such illegal,
invalid or unenforceable provision as may be possible and be legal,
valid and enforceable.
10. Successors and Assigns. This Agreement and the rights, interests and
obligations hereunder shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and
permitted assigns.
11. Governing Law. This Agreement and the rights and obligations of the
parties hereto shall be governed, construed and enforced in accordance
with the laws of the State of New York and exclusive venue shall lie in
the state and federal courts in the State of York.
12. Amendment, Waiver and Other Action. This Agreement may be amended,
modified or supplemented only by a written instrument executed by the
parties against which enforcement of the amendment, modification or
supplement is sought.
13. Legal Representation. All of the parties to this Agreement acknowledge
that they have been advised that they should seek and have had the
opportunity to seek counsel to review this Agreement and to obtain the
advice of such counsel relating thereto.
14. Assignment. Neither this Agreement nor any right created hereby shall be
assignable by IPI or O&P hereto without the written consent of the
other.
15. Confidentiality. Other than as required by law, each party shall
maintain the confidentiality of, and not divulge or disclose to any
other person, the existence of or any terms and conditions of this
Agreement or any of the financial or other information provided to it by
the other party to this Agreement.
16. Captions. The captions in this Agreement are for convenience of
reference only and shall not limit or otherwise affect any of the terms
or provisions hereof.
17. Number and Gender. Whenever the context requires, references in this
Agreement to the singular number shall include the plural; the plural
number shall include the singular; and words denoting gender shall
include the masculine, feminine, and neuter.
18. Public Announcements. Except to the extent that IPI or NEAI believes on
the advice of counsel that public disclosure is required by law, no
party to this Agreement shall make, or cause to be made, any press
release or public announcement in respect of this Agreement or the
transactions contemplated hereby or otherwise communicate with any news
media without prior notification to the other parties. The parties
shall cooperate as to the time and contents of any such press release or
public announcement, but if they are unable to reach an agreement as to
the time and contents of such press release or public announcement, each
shall be free to make such press release or public announcement as it
deems necessary.
19. Survival of Representations and Warranties. The representations and
warranties of the respective parties shall survive any termination of
this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year set forth above.
INTERNATIONAL PRODUCTS, INC. O&P PARTNERS, L.L.C.
By: __/s/_Gary Cella__ By: /s/ Xxxxx Johnson__________
Its: President_________ Its: Prseident/Owner__
Date: __6/11/03_________ Date: ______6/11/03_________
XXXXX XXXXXXX
/s/Xxxxx Johnson____
