<PAGE> 1
EXHIBIT 10.2
MASTER DISTRIBUTORSHIP AGREEMENT
AGREEMENT, made this 23rd day of February, 2000, by and between Infinity Group,
Inc., a New Mexico corporation, hereinafter called "Infinity" and Evergreen
Network.com, Inc., a Colorado corporation, hereinafter called the "Master
Distributor".
WHEREAS Infinity represents that, under the trade name and trademark of "Tab
Force(TM)", it is the exclusive manufacturer of validation units and pull-tabs,
hereinafter called Infinity's products, and that it has the sole right to grant
a license to sell and to promote the sale of Infinity's Tab Force(TM) products
in the area, and
WHEREAS the Master Distributor desires a license to sell and to promote the
sale of Infinity's Tab Force(TM) products,
IT IS THEREFORE AGREED:
1. LICENSES. Infinity hereby grants to the Master Distributor the right and
license to market and sell at retail the products and all its future
products bearing the "Tab Force(TM)" trademark in the territory assigned by
this Agreement. In addition, Infinity hereby grants to the Master
Distributor the right and license to use its trade name, trademark, labels,
copyrights, and other advertising media in the marketing of Infinity's
present and future Tab Force(TM) products. The license agreement shall be
transferable with the consent of Infinity, which consent shall not be
unreasonably withheld.
2. TERRITORY. For the purposes of this Agreement, the territory of the Master
Distributor shall be the state of Colorado, the state of Arizona, the state
of Nebraska, and charitable jurisdictions in California including all
existing accounts, subject to approval, as required by law, of each state's
governing body to the use of Tab Force in each state.
<PAGE> 2
MASTER DISTRIBUTORSHIP AGREEMENT 12/99
3. Covenants of Infinity Tab Force(TM). Infinity covenants as follows:
a. If the Master Distributor shall not be in default under the terms of
this Agreement or of any payment owed to Infinity under the terms of
this Agreement, Infinity shall supply the Master Distributor with its
products in the regular course of its business and under terms as set
forth herein for its trademarked products.
b. During the term of this Agreement, Infinity shall sell its Tab
Force(TM) system computers, validation units, Tab Works system, and
deals to Master Distributor as follows:
(i) During the term of this Agreement, Infinity shall maintain in
full force and effect Federal registrations of its trade name and
trademark and shall at its own expense exercise its common law
and statutory rights any infringements of its trade name,
trademark, labels and copyrights.
(ii) During the term of this Agreement, Infinity shall use its best
efforts to advertise and promote the sale of its products under
the "Tab Force(TM)" trade name and trademark, and Infinity shall
supply the Master Distributor with products equal in quality
to the products manufactured and sold to any Distributor or end
user under the "Tab Force(TM)" trade name and trademark.
4. Covenants of the Master Distributor. The Master Distributor covenants as
follows:
a. The Master Distributor will purchase from Infinity its Tab Force(TM)
system in quantities sufficient to meet market demands within Master
Distributor's territory.
b. The Master Distributor shall pay promptly for Infinity's products;
orders for validation units will be paid fifty percent (50%) on order,
twenty-five percent (25%) on shipment and the remaining balance on
installation. All other Infinity products and invoice will be paid net
ten (10).
c. The Master Distributor will instruct its salespeople to regularly
encourage the sale and display of Infinity's products in all
locations within of the Master Distributor's territory, and will
require such salespeople to give special effort and services in the
resale of such products.
2
<PAGE> 3
MASTER DISTRIBUTORSHIP AGREEMENT 12/99
d. The Master Distributor will list in feature type and illustrate in
adequate space, in all catalogs and sales bulletins which the Master
Distributor may deliver to its salesmen, such of Infinity's products
as Infinity may from time to time designate.
e. The Master Distributor will cooperate fully with Infinity in
connection with all Infinity's promotions, special deals, and
campaigns and when requested will inaugurate special drives through
its salespeople and other clerks featuring such special deals and
campaigns.
f. The Master Distributor will permit Infinity and its representatives
to address meetings of the Master Distributor's sales staff on behalf
of Infinity's products during training sessions Infinity shall provide
to Master Distributor.
g. The Master Distributor will do everything within its power to feature,
promote, and advertise, as a part of its merchandising and sales
policy, such products of Infinity as the Infinity shall from time to
time sell to the Master Distributor, and will use its best efforts to
stimulate and increase interest in Infinity's products.
5. TERM. The term of this Agreement shall begin on the first day of March,
2000, and shall continue as mutually agreed upon.
a. Either party on one hundred eighty (180) days written notice to the
other shall be entitled to terminate this Agreement for just cause,
but without prejudice to any rights of either party to moneys due or
to become due under this Agreement.
b. If the Master Distributor is in default on any payment due to Infinity
for a period of thirty (30) days, or if the Master Distributor
defaults in performing any of the other terms of this Agreement and
continues in default for a period of thirty (30) days after written
notice thereof, or if the Master Distributor is adjudicated bankrupt
or insolvent, or enters into a composition with its creditors or if a
receiver is appointed for it, or if a majority of its voting stock is
transferred, or if its ownership or control is in any way
substantially changed, then Infinity shall have the right to terminate
this Agreement upon giving notice to the Master Distributor at least
thirty (30) days before the time when such termination is to take
effect, and thereupon this Agreement shall become void, but without
prejudice to the rights of either party to moneys due or to become due
under this Agreement.
3
<PAGE> 4
MASTER DISTRIBUTORSHIP AGREEMENT 12/99
c. Upon the termination of this Agreement for any reason, the Master
Distributor shall discontinue the use of Infinity's trade name,
trademark, labels, copyright, and other advertising media and shall
remove all signs and displays relating thereto; and, in the event of
failure so to do, Infinity may itself remove such articles at the
Master Distributor's expense.
d. Upon the termination of this Agreement for any reason, Infinity shall
have the option to repurchase its products then in the possession of
the Master Distributor and available for sale, at prices originally
billed to the Master Distributor and with deductions for moneys due or
to become due to Infinity under this Agreement.
6. SALES PRICES
a. The Master Distributor will acquire the units, which were formerly the
subject of the lease between ICON and Colorado Tab Force LLC dated
June 23, 1998 and the lease between Phoenix Corp./GMAC and Colorado
Tab Force LLC dated December 30, 1997 which total 235 Tab Force
validators.
(i) Video 8 Liner Tab Force(TM)
<TABLE>
<S> <C> <C>
1-100 $5,030.00 each
101-300 $4,775.00 each
301 plus $4,500.00 each
Reel Tab Force(TM)
1-100 $5,500.00 each
101-300 $5,300.00 each
300 plus $5,000.00 each
</TABLE>
(ii) Tab Force(TM) utilizes a network system called Tab Works
which the Master Distributor may purchase for $8,600.00, per
system.
4
<PAGE> 5
MASTER DISTRIBUTORSHIP AGREEMENT 12/99
(iii) Tab Force(TM) pull-tabs may be purchased at the Master
Distributor price of .15c. per pull-tab for resale at
prices set by Master Distributor to customers within the
territory. Master Distributor will be entitled to any
price reductions offered by Infinity.
(iv) After the first two installations, which shall be at no
charge, the Master Distributor shall pay infinity an
installation fee of One Hundred Fifty and no/100 Dollars
($150.00) per validation unit for any installations the
distributor wants performed by Infinity.
(v) Stools, pedestals and signs will be sold to master
Distributor at the then prevailing Master Distributor
prices as set by Infinity.
c. The Master Distributor agrees that Infinity will have the right,
at its discretion, to send a representative to act only as an
observer with Master Distributor employees on sales calls at the
expense of Infinity.
d. The Master distributor agrees that Infinity shall have the right
to review and audit, at its expense, all contracts for the
placement, lease, or use of Tab Force(TM).
6. ASSIGNMENT. This Agreement may be assigned by Infinity, and the performance
of its duties thereunder delegated.
7. ARBITRATION. The Master Distributor and Infinity agree that, in the event
of any disputes or controversies concerning this Agreement, they will
attempt in good faith to settle and resolve any and all differences
amicably in an effort to maintain the goals set forth in this Agreement.
All disputes or disagreements shall be reduced to writing by the parties
within three (3) days of receipt of notice of a problem. The parties, upon
receipt of the written notice and a written response, shall agree to a
seven (7) day cooling-off period.
If, following the cooling-off period, the parties cannot resolve the
dispute, the parties further agree that all disputes and disagreements
shall be submitted to a disinterested third party to try and resolve the
dispute.
If the effort to voluntarily resolve the dispute is not successful, the
dispute shall be settled by arbitration in Albuquerque, New Mexico,
pursuant to
5
<PAGE> 6
MASTER DISTRIBUTORSHIP AGREEMENT 12/99
rules promulgated by the American Arbitration Association, or its
successor.
8. NOTICE. Any notice, payment, or demand required under this Agreement shall
be addressed as follows:
Natalie Paul, President and C.E.O., Infinity Group, Inc.
6001 Midway Park NE, Albuquerque, NM 87109
Evergreen Network.com, Inc. 3336 N. 32nd St., Suite 106
Phoenix, AZ 85018
9. BENEFIT. This Agreement shall be binding upon and inure to the benefit of
the successors and assigns of Infinity.
10. REPRESENTATION. The Master Distributor represents that it has adequate
facilities, personnel, and financial resources to perform the various
covenants and service herein set forth.
11. INSPECTION OF EQUIPMENT BY INFINITY. Infinity shall have the right at any
time during business hours to enter upon the premises where the Equipment
is located for the purpose of inspecting it or observing its use,
maintenance, and operation.
12. INSPECTION AND ACCEPTANCE BY MASTER DISTRIBUTOR. Master Distributor shall
have thirty (30) days from delivery of the Equipment pursuant to this
Agreement within which to inspect the Equipment, and shall notify Infinity
in writing within said thirty (30) days of any discrepancies between such
Equipment and the description, statement of condition, and valuation as
stated in Attachment A "Equipment Summary." If no such notification is
received by Infinity within the period, Master Distributor shall be
conclusively presumed to have accepted the Equipment in good condition and
otherwise agreed to all terms and conditions set forth in Attachment A
including, but not limited to, prices.
13. ALTERATIONS. Master Distributor shall not make any changes, alterations,
modifications, additions, or improvements to the Equipment which is the
subject of the Agreement without the prior written consent of Infinity. All
additions to and improvements shall immediately become the property of
Infinity and subject to the terms of this Agreement.
6
<PAGE> 7
MASTER DISTRIBUTORSHIP AGREEMENT 12/99
14. REPRESENTATIONS AND WARRANTIES. The Master Distributor and Infinity,
respectively, represent and warrant that each enters into this Agreement in
good faith with the full intent to carry our each and every one of the
provisions for which the party has any duty, responsibility, and/or
liability to carry out, that the party has full power and authority to
enter into this agreement, that the terms and conditions of this Agreement
have been duly authorized, that none of said terms and conditions violate
any other agreements of the party and, as applicable to the Facility,
violate any ordinance and/or resolution and/or other rule of the Master
Distributor's customer, that the person signing this Agreement has full
power and authority so to sign and to bind the party to the terms and
conditions herein affecting the party, and that each party, respectively,
shall not knowingly associate with or employ any persons who are not
licensable under the territory's laws, Ordinance, or Regulations.
15. DEFAULT: REMEDIES.
I.
A. Master Distributor will be in default under this Agreement if, for any
reason:
1. Master Distributor infringes upon, misapplies, or usurps
Infinity's trade names or trademarks.
2. Master Distributor does not fully pay, when due, any payment
due in connection with this Agreement;
3. Master Distributor fails to perform, in a full and timely
manner, any agreement or obligation under this Agreement;
4. Any representation or warranty of Master Distributor to
Infinity is false when made;
5. Master Distributor is in default for at least ten (10) days
under any other present or future agreement with Infinity;
6. A bankruptcy, insolvency, or receivership proceeding is filed
against Master Distributor and is not dismissed for thirty (30)
days;
7
<PAGE> 8
MASTER DISTRIBUTORSHIP AGREEMENT 12/99
7. Master Distributor files or acquiesces in any bankruptcy,
insolvency, or receivership proceeding, as Debtor; or
B. If any such default occurs, Infinity may, in its sole discretion
upon giving notice to Master Distributor, exercise one or more of
the following remedies as it desires:
1. Terminate this Agreement, pursuant to paragraph 5(b) hereof,
as to any or all of the Equipment, and all rights to use any
trade names or trademark;
2. Take possession of any or all of the secured Equipment,
wherever located and, for this purpose, enter any premises
that Master Distributor then owns or occupies (and Infinity
shall not be liable to Master Distributor for any such entry
or removal), or make any or all of the secured Equipment
unusable without removing it (also without liability);
3. Notwithstanding provisions herein to the contrary, should
Infinity's trade names or patents be at risk due to any breach
by Master Distributor, take legal action to enforce Master
distributor's obligations under this Agreement, including
suing for damages and injunctive relief;
4. Sell or lease any or all of the Equipment, at public or
private sale, at such time(s) and upon such terms (if any) as
Infinity desires, free of any rights of Master Distributor's
(and, if Master Distributor is entitled to any advance notice
of such a disposition, Master Distributor agrees that such a
notice is reasonable if mailed to it at least ten (10) days
before the disposition);
5. Apply any advance payment, deposit, or similar money that it
holds to any amount that Master Distributor owes; and
6. Exercise any other right that Infinity then has under the
Uniform Commercial Code or other applicable law.
8
<PAGE> 9
MASTER DISTRIBUTORSHIP AGREEMENT 12/99
II. Infinity shall be in default if it fails to supply product in a reasonable,
Business like time and manner, as and when ordered by Master Distributor.
16. INDEMNIFICATION'S. Master Distributor will indemnify Infinity (and its
employees, agents, and affiliates) against all of the following that arise
from, or are in any way connected with, the Equipment or this Agreement
(including the purchase, delivery, installation, ownership, use,
maintenance, malfunction, or interruption in service of the Equipment or
any part of it):
a. All claims, losses, liabilities, damages, and expenses whatsoever
(including reasonable attorneys' fees);
b. All actual and alleged violations of any law or other
governmental rule, except for any of the foregoing claims,
losses, etc., to the extent caused directly and primarily by
Infinity's gross negligence or willful misconduct.
c. All misapplications or infringements of Infinity's trade names or
trademarks caused or permitted by Master Distributor.
17. LOSS OR DAMAGE: INSURANCE. Master Distributor assumes all risk of loss for
the Equipment, and will be responsible for any loss of, damage to, or
destruction of the Equipment, regardless of cause. No loss, damage, or
destruction will reduce or terminate any of Master Distributor's
obligations under this Agreement, except to the extent that Master
Distributor has paid to Infinity in an amount calculated to make Infinity
whole (as determined by Infinity) for any Equipment that is totally
destroyed. However, Master Distributor will notify Infinity promptly after
the occurrence of any partial or total loss, damage, or destruction. Upon
closing, Master Distributor will carry insurance against fire, loss, and
all other risks that prudent owners or operators insure against, and ensure
the Infinity (or Infinity's assignee) is named as sole loss payee for
Equipment losses (partial and total). This insurance must be placed with
insurers reasonably satisfactory to Infinity, and must have policy limits
no lower than the Equipment's full replacement value. This insurance must
stipulate that Infinity's interest will not be invalidated by any act,
omission, or misrepresentation by Master Distributor or any third party.
This insurance also must stipulate that, at least as to Infinity's
interest, it cannot be canceled, terminated, or amended, or expiration.
This does not
9
<PAGE> 10
MASTER DISTRIBUTORSHIP AGREEMENT 12/99
mean that Infinity has to verify that any insurance exists or to verify any
policy terms.
18. DESIGNATED LAWFUL USE. Master Distributor agrees to use the Equipment in a
careful manner and in compliance with any applicable governmental law,
ordinances, or regulations.
19. WAIVER. No delay or omission to exercise any right of infinity or Master
Distributor under this Agreement shall be construed as a waiver of any such
right or as impairing any such right. Any waiver by Infinity or by Master
Distributor of a single breach or default must be expressed and in writing
and shall not be construed as a waiver of any prior or subsequent breach or
default.
20. NOTICES AND PAYMENTS. Any notice to be given, and any payments to be made,
under this Agreement, shall be personally delivered or mailed by certified
mail, postage prepaid, at the addresses set forth in the opening paragraph
of this Agreement. Such notice or payment shall be deemed given or made
when set.
21. SURVIVAL OF MASTER DISTRIBUTOR'S COVENANTS. Master Distributor's covenants
under this Agreement shall survive the expiration or earlier termination of
this Agreement whenever the context permits.
22. BINDING. This Agreement shall be binding upon and shall inure to the
benefit of the parties, their legal representatives, successors, and
assigns.
23. SEVERABILITY. If any provision of this Agreement is held invalid by a court
of competent jurisdiction, it shall be considered deleted from this
Agreement, but such invalidity shall not affect the other provisions that
can be given effect without the invalid provision.
24. JUDICIAL ENFORCEMENT: ATTORNEYS' FEES. A refusal to arbitrate, as provided
in Paragraph 8 hereof, may be remedied and an arbitration award may be
enforced in any court of competent jurisdiction; provided that, the parties
hereto agree that any such action shall be commenced and proceed in the
United States district court for the district of New Mexico located in
Albuquerque, New Mexico. In the event judicial proceedings are instituted
in connection with this Agreement, the unsuccessful party shall pay to the
successful party a reasonable amount for the successful party's attorneys'
fees to be fixed by the court
25. CONDITIONS PRECEDENT. Infinity and Master Distributor do hereby agree that
the following shall constitute express conditions precedent to the
obligations of the parties under this Agreement:
10
<PAGE> 11
MASTER DISTRIBUTORSHIP AGREEMENT 12/99
a. Infinity and/or Master Distributor shall execute any and all
additional documents necessary or incidental to satisfy any term
or condition of this Agreement; and
b. Master Distributor and Infinity shall obtain all government
approvals necessary to this Agreement and the activities to be
performed hereunder.
26. COUNTERPARTS. This Agreement may be executed in one or more counterparts,
each of which will be deemed to be an original, but all of which together
will constitute one and the same instrument.
27. ENTIRE AGREEMENT. This instrument is intended by the parties as a final
expression of their agreement and as a complete and exclusive statement of
its terms. No course of prior dealings between the parties and no usage of
trade shall be relevant or admissible to supplement, explain, or vary any
of the terms set forth herein. Acceptance of, or acquiescence in, a course
of performance rendered under this or any prior agreement shall not be
relevant or admissible to determine the meaning of this Agreement even
though the accepting or acquiescing party has knowledge of the nature of
the performance and an opportunity to make objection. No representations,
understandings, or agreements have been made or relied upon in the making
of this Agreement other than those specifically set forth herein. This
Agreement can only be modified in a writing signed by the parties or their
duly authorized agents.
IN WITNESS WHEREOF the parties have executed this Agreement.
DATED: February 23, 2000
------------
MASTER DISTRIBUTOR: INFINITY GROUP, INC.,:
EVERGREEN, INC. INFINITY GROUP, INC.,
A Colorado corporation A New Mexico corporation
/s/ HOWARD TOOKE /s/ NATALIE W. PAUL
---------------------- ------------------------
By: Howard Tooke Natalie W. Paul
Its: President President & CEO
11
