Exhibit 10.6
AGREEMENT
THIS AGREEMENT is made this 25th day of August, 2003 by and between
SOLOMON TECHNOLOGIES, INC., a Delaware corporation as successor to Solomon
Technologies, Inc., a Maryland corporation ("Solomon") and HOMEWOOD PRODUCTS
CORPORATION ("Homewood").
WHEREAS, Solomon and Homewood entered into a manufacturing agreement
dated November __, 1996 ("1996 Agreement") for the development, purchase and
sale of certain electric motors for marine applications; and
WHEREAS, with the passage of nearly seven years and the changing of
circumstances, Solomon and Homewood wish to terminate the 1996 Agreement and
enter into the agreement as set forth herein.
NOW, THEREFORE, in consideration of the premises and for other
consideration, the adequacy, sufficiency and receipt of which the parties hereto
hereby acknowledge, Solomon and Homewood agree as follows:
1. Release by Solomon. Solomon hereby releases and forever discharges
Homewood and its affiliates, and their respective directors, officers,
agents, employees, fiduciaries of benefit plans, successors and
assigns, from any and all claims and potential claims, known or
unknown, arising in whole or in part out of the 1996 Agreement,
including, but not limited to, any and all claims arising out of
alleged violations of the 1996 Agreement and any other alleged
contract, express or implied, any covenant of good faith and fair
dealing, express or implied.
2. Release by Homewood. Homewood hereby releases and forever discharges
Solomon and its affiliates, and their respective directors, officers,
agents, employees, fiduciaries of benefit plans, successors and
assigns, from any and all claims and potential claims, known or
unknown, arising in whole or in part out of the 1996 Agreement,
including, but not limited to, any and all claims arising out of
alleged violations of the 1996 Agreement and any other alleged
contract, express or implied, any covenant of good faith and fair
dealing, express or implied.
3. Purchase Requirement. During the period January 1, 2004 through
December 31, 2004, Solomon shall purchase from Homewood no fewer than
100 production electric motors of the type set forth on SCHEDULE A
hereto ("Units"). The catalog number and quantity for the Units to be
released from time to time shall be given by Solomon to Homewood no
less than 45 days before the requested shipping date. Each successive
one-year period commencing on January 1, 2005 and thereafter is
referred to herein as a "Purchase Year". The commencement of the
initial Purchase Year shall be accelerated to the first day of the
month after which
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Solomon secures no less than $2,000,000 of equity funding. In the event
of any such acceleration, the dates set forth herein shall be adjusted
accordingly.
4. Pricing. The purchase price for the Units shall be Homewood's most
favorable price based on a quantity purchase commitment for 100 Units,
adjusted as appropriate for each subsequent Purchase Year.
5. Take or Pay. In the event that Solomon does not purchase 100 Units
during the period set forth above, Solomon shall pay Homewood on or
before January 1, 2005 an amount equal to the product of (i) the
average purchase price for all Units actually purchased by Solomon and
(ii) the remainder of 100 and the number of Units actually purchased by
Solomon. By way of example only, if the average purchase price of Units
actually purchased by Solomon was $8,000, and Solomon purchased 75
Units, Solomon would owe Homewood $200,000.
Solomon agrees to pay to Homewood $200,000 from the first $2,000,000 of
equity funding received by it and an additional $100,000 from the next
$1,000,000 of equity funding received by it, in each instance to be
applied against Solomon's purchase commitment hereunder.
6. Exclusivity. During the initial Purchase Year and for so long as
Solomon commits to take or pay for 100 Units in any subsequent Purchase
Year, Homewood shall not accept purchase orders for Units from any
third party for marine applications, and Solomon shall not purchase
products comparable to Units from any third-party supplier.
7. Renewal Periods. This Agreement shall be automatically renewed for
successive one year periods provided that, on or before September 30 of
each year, Solomon commits to purchase no fewer than 100 Units during
the successive one year period commencing on January 1, PROVIDED THAT
Solomon has accepted delivery of or paid for no fewer than 100 Units
during such Purchase Year. The parties hereto acknowledge that the
Units purchased in successive years may vary from those purchased
during the initial one year period and agree from time to time to
modify SCHEDULE A hereto accordingly.
8. New Products for Marine Applications. Solomon shall accord Homewood the
opportunity on a non-exclusive basis to develop new products within
Homewood's scope of business for marine application opportunities
targeted by Solomon.
9. Miscellaneous.
a. Relations with Third Parties. Neither party nor its agents,
representatives or employees shall for any purpose be considered
agents, representatives or employees of the other party. Neither party
shall perform any act or make any
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representation which may create the impression or inference that either
party is an agent, representative or employee of the other party.
b. Power and Authority. Each party hereto represents that it has the
power and authority to execute, deliver and perform this Agreement, and
that such execution, delivery and performance will not violate,
conflict with or result in a breach or termination of, or constitute a
default under, any charter, by-law, lease, contract or other agreement
or instrument to which it is a party or by which it may be bound. Each
party covenants and agrees that it will perform its duties hereunder in
accordance with any and all applicable laws, statutes, ordinances,
rules, regulations or any other authoritative pronouncement of any
governmental authority having jurisdiction over such matters.
c. Assignability. Homewood may not assign, subcontract, transfer or
otherwise delegate any of its rights or obligations hereunder without
the prior written consent of Solomon, which consent may be withheld in
the sole and absolute subjective discretion of Solomon. This Agreement
shall inure to the benefit of, and shall be binding upon, the parties,
their respective successors and permitted assigns.
d. Governing Law; Arbitration. This Agreement shall be governed,
enforced, performed and construed in accordance with the laws of the
State of Delaware without regard to its conflict of laws provisions.
Each of the parties hereto submits to the exclusive jurisdiction of the
state and/or federal courts located within the State of Delaware for
any suit, hearing or other legal proceeding of every nature, kind and
description whatsoever in the event of any dispute or controversy
arising hereunder or relating hereto, or in the event any ruling,
finding or other legal determination is required or desired hereunder.
Any dispute or disagreement arising among the parties in connection
with this Agreement that cannot be resolved to their mutual
satisfaction shall be settled by binding arbitration conducted in
Wilmington, Delaware by the American Arbitration Association (the
"AAA") in accordance with the rules thereof then pertaining. Each of
the parties hereto hereby submit to the jurisdiction of the courts of
the State of Delaware in any proceeding for the enforcement of this
Agreement to arbitrate and for the enforcement of the awarded rendered
by the arbitrators, and agree that judgment upon such award may be
entered in any court, in or out of the State of Delaware, having
jurisdiction thereof. The costs of such arbitration, including the fees
and expenses of the arbitrator (but not the cost to each party of
preparing and presenting its case) shall be shared equally by Solomon
and Homewood, unless the arbitration award provides otherwise.
e. Severability and Modification. If for any reason any provision of
this Agreement shall be deemed by a court of competent jurisdiction to
be leally invalid or unenforceable, the validity, legality and
enforceability of the remainder of this Agreement shall not be affected
and such provision shall be deemed
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modified to the minimum extent necessary to make such provision
consistent with applicable law and, in its modified form, such
provision shall then be enforceable and enforced.
f. Notices. All notices that are required or permitted to be given
under this Agreement shall first be sent by facsimile transmission and
then confirmed on the same day for delivery on the next business day by
reputable overnight courier service. Notice shall be deemed to have
been duly given or made on the date delivered by facsimile
transmission. Notices shall be addressed as follows:
If to Solomon:
Xxxxx Tether
Solomon Technologies, Inc.
XX Xxx 000
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Facsimile: 000-000-0000
If to Homewood:
X.X. XxXxxxx
President
Homewood Products Corporation
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxxxx, XX 00000
Facsimile: 000-000-0000
g. Captions; Waiver. Captions are inserted only for convenience and are
in no way to be construed as part of this Agreement. The waiver or
failure of any party to exercise any rights under this Agreement shall
not be deemed a waiver of any other right or any future right.
h. Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be an original and all of which taken
together shall constitute one and the same agreement. Executed copies
of this Agreement may be delivered by facsimile transmission or other
comparable electronic means.
i. Further Assurances; Announcements. Each party hereby agrees to do
such further acts and things, and to execute and deliver such
additional conveyances, assignments, agreements and instruments from
time to time as the other party may at any time reasonably request in
order better to assure and confirm to such other party the rights,
powers and remedies conferred to it by this Agreement. Announcements
regarding the transactions contemplated herein shall be made only with
the prior consent of the parties hereto.
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j. Time of the Essence. Time is of the essence with respect to the
performance of this Agreement.
k. Expenses. Except as expressly set forth herein, each party shall
bear its own costs, expenses, taxes and other charges whatsoever
incurred in connection with the execution and performance of this
Agreement.
l. Entire Agreement. This Agreement, including Schedule A hereto,
contains the entire agreement and understanding of the parties with
respect to the subject matter hereof and supersedes all prior
agreements (including, without limitation, the 1996 Agreement),
negotiations, representations and proposals, written and oral, relating
thereto. This Agreement may be amended or modified only in a writing
executed by both parties hereto.
m. Confidentiality. Homewood agrees that all technology, data, work
product, specifications, current or prospective customer names and
requirements, marketing practices, product information and other
business information provided to Homewood by Solomon in furtherance of
this Agreement shall be treated as confidential and used exclusively by
Homewood for the performance of this Agreement. Solomon agrees that all
technology, data, work product, specifications, product information and
other business information provided to Solomon by Homewood in
furtherance of this Agreement shall be treated as confidential and used
exclusively by Solomon for the performance of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized representatives to execute this Agreement under seal on behalf of the
parties on the date above first written.
ATTEST: SOLOMON TECHNOLOGIES, INC.
/s/ By: /s/ XXXXX X. TETHER
-------------------------- -------------------
Xxxxx Tether, President
ATTEST: HOMEWOOD PRODUCTS CORPORATION
/s/ By: /s/ XXXXX XXXXXXX
--------------------------- -----------------
Xxxxx XxXxxxx, President
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SCHEDULE A
[omitted]
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