Lutcam SB-2 Amend 11 Ex 10-5 Distribution Agreement Form


    Exhibit
      10.5

    


    LUTCAM
      Inc.

    


    DRAFT
      DISTRIBUTION AGREEMENT

     

    This
      Distribution Agreement (“Agreement”) is made as of this ____
      day of
      _________, 200___
      between Lutcam, Inc., a company incorporated under the laws of the State of
      Nevada (the "Company") and _________________________

    (the
      "Distributor") .

    


    WHEREAS
      the Company is a Master Distributor throughout the Territory (as hereinafter
      defined) of the interlocking deck products bearing the "ThruFlow Interlocking"
      trademark and any other products, all as shown on Schedule “A” hereto, as may be
      amended from time to time at the sole discretion of the Company by written
      notice thirty (30) days in advance of the effective date of such amendment
      (the
      "Products");

    


    AND
      WHEREAS the Distributor, being familiar with the Products, wishes to enter
      into
      an Agreement with the Company whereby the Distributor will undertake
      responsibility for the distribution and sale of the Products on a nonexclusive
      basis throughout the Territory (as hereinafter defined) on the terms and
      conditions contained herein;

    


    NOW
      THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the mutual
      covenants contained in this Agreement, the parties agree as
      follows:

    


    1. DEFINITIONS
      AND SCHEDULES

    


    Definitions

    


    
      	
              (1.1)

            	
              As
                used in this Agreement, the following words and phrases shall have
                the
                following meanings:

            


    

    


    "Term"
      means
      the term of this Agreement as provided in subsection 3(1) including any renewal
      provided thereunder;

    


    "Territory"
      means
      in the States of Michigan, Ohio, Pennsylvania, New York Indiana, Illinois,
      Iowa,
      Wisconsin and the country of Canada. The Territory may be modified at the sole
      discretion of the Company with thirty (30) days written notice. 

    


    "Trademark"
      means
      the unregistered trademark "ThruFlow Interlocking". Additional trademarks may
      be
      added at the sole discretion of the Company.


    
      
         

      

      
         

        
          

        

      

      
         

      

    


    Schedules

    


    (1.2) The
      attached schedule forms part of this Agreement and is hereby  incorporated
      as though set forth in full herein.

    


    2. APPOINTMENT
      AND TERRITORY

    


    Appointment

    


    
      	
              (2.1)

            	
              Subject
                to the terms and conditions of this Agreement, the Company hereby
                grants
                to the Distributor the right to distribute and
                sell the Products within the Territory and hereby appoints the Distributor
                as its distributor for this purpose
                .

            


    

    


    Sub
      -Distributors

    


    
      	
              (2.2)

            	
              In
                connection with the performance of its obligations hereunder, the
                Distributor shall have the right, subject to prior written approval
                of the
                Company, to appoint sub-distributors, provided that, as a condition
                of
                such appointment, such sub-distributors shall agree in writing to
                distribute the Products only within the Territory and to be subject
                to the
                terms of this Agreement.

            


    

    


    Restriction
      on Sale of Products

    


    
      	
              (2.3)

            	
              The
                Distributor shall not, directly or indirectly, distribute or sell
                Products
                for delivery to any location outside of the Territory. The Distributor
                agrees that it will not solicit orders for Products, advertise the
                Products, maintain any branch for marketing the Products or keep
                any stock
                of the Products outside the Territory. The Company will not deliver
                Products at the request of the Distributor to any address outside
                of the
                Territory.

            


    

    


    


    2


    
      
         

      

      
         

        
          

        

      

      
         

      

    


    


    3. TERM
      AND RENEWAL

    


    Term

    


    
      	
              (3.1)

            	
              This
                Agreement shall become effective upon its execution by both parties
                hereto
                and, unless terminated earlier in accordance with the provisions
                of this
                Agreement, shall remain in effect for a period
                of Two (2) years from the date of such
                execution (the "Initial Term").

            


    

    


    Renewal

    


    
      	
              (3.2)

            	
              Upon
                the expiry of the Initial Term and provided that the Distributor
                is not
                otherwise in default hereunder, the Company may, in its sole discretion,
                by notice in writing to the Distributor, renew this Agreement upon
                the
                terms and conditions herein contained for an additional ______ (__)
                year
                term (the "Renewal Term"). 

            


    

    4. OBLIGATIONS
      OF THE DISTRIBUTOR

    


    The
      parties agree that during the term of this Agreement the Distributor
      shall:

    


    (4.1) advertise
      and promote the sale of the Products in the Territory and  to
       make
      regular and sufficient contact with the present and potential  customers
      of the Distributor;

    (4.2) anticipate
      requirements and order promptly when required for the purpose  of
      facilitating shipments from Company at minimum transportation
      costs;

    (4.3) maintain
      adequate sales and warehouse facilities and sufficient stock of  the
      Products to ensure prompt service to customers of the Distributor;

    (4.4) promptly
      comply with the terms of sale for any of the Products as herein  provided
      or as provided in any invoice provided by the Company;

    (4.5) promptly
      pay the sale price as herein provided;

    (4.6) honor
      any
      warranty offered by the Company on the Products;

    (4.7) provide
      an annual marketing plan covering the Distributor’s Territory  prior
      to
      the beginning of each new calendar year;

    (4.8) maintain
      minimum levels of sales on an annualized basis as agreed; 

    (4.9) maintain
      an annual sales growth after year one of at least 15% annually;

    (4.10) provide
      at the company’s request sales data containing end customer  names
      and
      locations in addition to annual sales levels by customer along  with
      average selling prices of the Product and any other detailed sales  information
      the Company may request; and

    (4.11) refrain
      from selling competitive products.

    


    


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    5. PRICES
      AND PAYMENT

    


    Sale
      Price

    


    
      	
              (5.1)

            	
              The
                Company shall, from time to time, provide the Distributor with its
                price-list, the current form of which is attached hereto as Schedule
                "A",
                with respect to the Products, which may be amended at the sole discretion
                of the Company with thirty (30) days written notice. All prices are
                quoted
                FOB the manufacturer's plant.

            


    

    


    Payment

    


    
      	
              (5.2)

            	
              The
                Company will invoice the Distributor for all Products sold to it
                hereunder. Payment terms will require the Distributor to pay for
                all
                orders of Products in full within thirty (30) days of the date that
                the
                Products are delivered to the Distributor's designated
                location.

            


    

    


    Price-List

    


    
      	
              (5.3)

            	
              The
                Company may provide to the Distributor, from time to time, lists
                setting
                out Distributor’s suggested selling prices with respect to the Products.
                The Distributor shall have the right to establish its own selling
                prices
                for the Products within the Territory. The responsibility of the
                Distributor is to continue to demonstrate an ability sell to previously
                agreed-to minimum levels as well as to grow sales annually at least
                fifteen persenct (15%) year over year. It is recognized that the
                Distributor’s developed pricing has a direct connection to the
                Distributor’s obligation to sell minimum quantities of Product and grow
                sales annually. 

            


    

    


    Sales
      and Marketing

    


    
      	
              (5.4)

            	
              Subject
                to the provisions of this Agreement, the determination of sales and
                marketing strategies and selling prices for the Products within the
                Territory during the Term shall be the sole responsibility of the
                Distributor, subject to any printed and published Product advertising
                the
                Company may elect.

            


    

    


    Consultation,
      etc.

    


    
      	
              (5.5)

            	
              The
                Distributor agrees to consult with the Company from time to time
                in
                connection with sales and marketing strategies for the Products.
                In
                addition, the Distributor agrees to report regularly, at least once
                per
                calendar quarter, to the Company upon marketing conditions affecting
                the
                sale of Products within the Territory, as well as providing at the
                request
                of the Company any and all customer information relating to the sale
                of
                the Product.

            


    

    


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    6. RESPONSIBILITIES
      OF THE COMPANY

    


    
      	
              (6.1)

            	
              The
                parties agree that during the term of this Agreement the Company
                shall:

            


    

    


    
      	 	
              (a)

            	
              provide
                the Distributor with such information as the Company considers appropriate
                in order to assist the Distributor in the preparation of sales promotion
                material and shall provide the Distributor with its sales promotional
                material relating to the Products in order to facilitate advertising
                of
                the Products, together with such information as the Company deems
                appropriate in connection with any warranties relating to the
                Products;

            


    

    


    
      	 	
              (b)

            	
              replace,
                at its own cost, any and all Products which are delivered by the
                Company
                to the Distributor in a defective state, limited to the published
                warranties and written performance specifications of the Product
                provided
                to the Distributor by the Company;

            


    

    


    
      	 	
              (c)

            	
              arrange
                for the manufacture and delivery to the Distributor of all orders
                of
                Products placed by the Distributor, in minimum truckload quantities
                with
                preference to maximizing freight and packaging cost savings, at its
                designated warehouses in a prompt and timely manner, in minimum truckload
                quantities only;

            


    

    


    
      	 	
              (d)

            	
              bear
                all liability in respect of the Products for any and all matters
                arising
                out of the manufacture of the Products, limited to the Company’s published
                Product warranties, written performance specifications and applications
                of
                use recommended in writing; and

            


    

    


    
      	 	
              (e)

            	
              permit
                the Distributor to hold itself out as an authorized distributor of
                the
                Products.

            


    

    


    7. TERMINATION

    


    
      	
              (7.1)

            	
              The
                Distributor and the Company each shall have the right to terminate
                this
                Agreement (except for those provisions which by their nature survive
                termination), upon the occurrence of any of the following events,
                such
                termination to be effective immediately upon the receipt or deemed
                receipt
                by the other party of notice to that
                effect:

            


    

    


    
      	 	
              (a)

            	
              if
                a party is in default of any of the provisions, terms or conditions
                herein
                contained and has failed to remedy such default within thirty days
                of
                written notice thereof from the other
                party;

            


    

    


    
      	 	
              (b)

            	
              the
                other party becomes bankrupt or insolvent, makes an assignment for
                the
                benefit of its creditors or attempts to avail itself of any applicable
                statute relating to insolvent
                debtors;

            


    

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              (c)

            	
              if
                the other party winds-up, dissolves, liquidates or takes steps to
                do so or
                otherwise ceases to function as a going concern or is prevented from
                reasonably performing its duties hereunder;
                or

            


    

    


    
      	 	
              (d)

            	
              if
                a receiver or other custodian (interim or permanent) of any of the
                assets
                of the other party is appointed by private instrument or by court
                order or
                if any execution or other similar process of any court becomes enforceable
                against the other party or its assets or if distress is made against
                the
                other party's assets or any part
                thereof.

            


    

    


    
      	
              (7.2)

            	
              Upon
                termination of this Agreement for any reason whatsoever, the following
                shall apply:

            


    

    


    
      	 	
              (a)

            	
              each
                party shall recover its own and release to the other party all of
                its
                rights and privileges granted by this
                Agreement;

            


    

    


    
      	 	
              (b)

            	
              the
                Distributor shall return to the Company all advertising, informational
                or
                technical material given to the Distributor by the
                Company;

            


    

    


    
      	 	
              (c)

            	
              the
                Distributor shall cease using the Company's trade names and trademarks
                and
                thereafter refrain from holding itself out as an authorized distributor
                of
                the Company;

            


    

    


    
      	 	
              (d)

            	
              if
                requested by the Company, the Distributor shall sell to the Company,
                at
                the original net price paid by the Distributor plus actual freight
                charges
                for delivery to the Company, all of the Products sold by the Company
                to
                the Distributor in the possession or the control of the Distributor
                at the
                time of termination of this Agreement and deliver same to the Company
                forthwith upon request, provided however, that the Company may reject
                any
                of the Products so delivered, which are not in the same condition
                a
                delivered to the Distributor; and

            


    

    


    
      	 	
              (e)

            	
              the
                Distributor shall immediately pay all amounts owed to the
                Company.

            


    

    


    (7.3) This
      section, number 7, shall survive the termination of this Agreement.

    


    


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    8. TRADE-MARK

    


    Use
      of Trade-Mark

    


    
      	
              (8.1)

            	
              The
                Company hereby grants the Distributor a license to use the Trademark
                only
                in connection with the sale of the Products as
                follows:

            


    

    


    
      	 	
              (a)

            	
              the
                Distributor shall notify the Company promptly of any suspected
                infringement or passing off or any pending or threatened litigation
                or
                other proceeding concerning the Trademark which may come to its
                attention;

            


    

    


    
      	 	
              (b)

            	
              the
                Company shall use its best efforts to prosecute, defend and conduct
                at its
                own expense all suits involving the Trademark including, without
                limitation, actions involving infringement or passing off and will
                undertake any actions or litigate any proceeding reasonably necessary
                for
                the protection of the Trademark and the Distributor shall provide
                every
                assistance to the Company in such defense at the cost of the Company;
                and

            


    

    


    
      	 	
              (c)

            	
              nothing
                in this Agreement shall be deemed in any way to constitute any transfer
                or
                assignment by the Company of the Trademark to the Distributor or
                give the
                Distributor any right, title or interest in or to the Trademark and
                the
                Distributor acknowledges that all trade-marks, copyrights and all
                other
                proprietary marks and/or rights to them are and shall remain the
                exclusive
                property of the Company.

            


    

    


    9. ASSIGNMENT

    


    Non-Assignability

    


    The
      parties covenant and agree that neither party shall, without the prior written
      consent of the other, transfer the whole or any part of this Agreement or any
      of
      its interest, rights or obligations hereunder. 

    


    
      	
              10.

            	
              INDEPENDENT
                CONTRACTOR

            


    

    


    This
      Agreement does not and shall not be construed to create any partnership or
      agency whatsoever as between the Company and the Distributor and the Distributor
      shall not, by reason of any provision herein contained, be deemed to be the
      partner, agent or legal representative of the Company nor to have the ability,
      right or authority to assume or create, in writing or otherwise, any obligation
      of any kind, express or implied, in the name of or on behalf of the
      Company.

    


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              11.

            	
              GENERAL
                CONTRACT PROVISIONS

            


    

    


    Entire
      Agreement

    


    
      	
              (11.1)

            	
              This
                Agreement constitutes the entire agreement between the parties with
                respect to all matters herein contained, and its execution has not
                been
                induced by, nor do any of the parties hereto rely upon or regard
                as
                material, any representations or writings whatsoever not incorporated
                herein and made a part hereof. This Agreement shall not be amended,
                altered or qualified except by an instrument in writing, signed by
                all the
                parties hereto and any amendments, alterations or qualifications
                hereof
                shall not be binding upon or affect the rights of any party who has
                not
                given its consent in writing.

            


    

    


    Headings

    


    
      	
              (11.2)

            	
              The
                division of this Agreement into articles and sections is for convenience
                of reference only and shall not affect the interpretation or construction
                of this Agreement.

            


    

    


    Severability

    


    
      	
              (11.3)

            	
              In
                the event that any of the covenants herein contained shall be held
                unenforceable or declared invalid for any reason whatsoever, such
                unenforceability or invalidity shall not affect the enforceability
                or
                validity of the remaining provisions of this Agreement and such
                unenforceable or invalid portion shall be severable from the remainder
                of
                this Agreement.

            


    

    


    Governing
      Law

    


    
      	
              (11.4)

            	
              This
                Agreement shall be governed by and construed in accordance with the
                laws
                of the State of Nevada without regard to its conflicts of laws
                provisions.

            


    

    


    Notices

    


    
      	
              (11.5)

            	
              All
                notices, requests, demands or communications made pursuant to the
                terms
                hereof or required or permitted to be given by one party to another
                shall
                be given in writing by personal delivery or by registered mail, postage
                prepaid, addressed to such other party or delivered to such other
                party as
                follows:

            


    

    


    to
      the
      Company at: 

    


    1775
      Lakeshore Road

    Sarnia,
      Ontario N7X1B9

    


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    to
      the
      Distributor at: 

    


    


    


    or
      at
      such other address as may be given by any of them to the other from time to
      time
      and such notices, requests, demands or other communications shall be deemed
      to
      have been received when delivered, or, if mailed, three (3) business days
      following the date of mailing thereof, provided that if any such notice,
      request, demand or other communication shall have been mailed and regular mail
      service shall be interrupted by strikes or other irregularities, such notices,
      requests, demands or other communications shall be deemed to have been received
      three (3) business days after the day following the resumption of normal mail
      service.

    


    Time
      of the Essence

    


    
      	
              (11.6)

            	
              Time
                shall be of the essence.

            


    

    


    Further
      Assurances

    


    
      	
              (11.7)

            	
              The
                parties agree to sign such other instruments, cause such meetings
                to be
                held, resolutions passed and by-laws enacted, exercise their vote
                and
                influence, do and perform and cause to be done and performed such
                further
                and other acts and things as may be necessary or desirable in order
                to
                give full effect to this Agreement.

            


    

    


    Successors
      and Assigns

    


    
      	
              (11.8)

            	
              This
                Agreement shall enure to the benefit of and be binding upon the parties
                hereto and their respective successors and
                assigns.

            


    

    


    Non-Waiver

    


    
      	
              (11.9)

            	
              No
                waiver by any party of any breach by any other party of any of its
                covenants, obligations and agreements hereunder shall be a waiver
                of any
                subsequent breach of any other covenant, obligation or agreement,
                nor
                shall any forbearance to seek a remedy for any breach be a waiver
                of any
                rights and remedies with respect to such or any subsequent
                breach.

            


    

    


    


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    Force
      Majeure

    


    (11.10)In
      the event of an inability or failure by the Company to manufacture, supply
      or
      ship any of the Products herein by reason of any fire, explosion, war, riot,
      strike, walk out, labor controversy, flood, shortage of water, power, labor,
      transportation facilities or necessary materials or supplies, default or failure
      of carriers, breakdown in or the loss of production or anticipated production
      from plant or equipment, act of God or public enemy, any law, act or order
      of
      any court, board, government or other authority of competent jurisdiction,
      or
      any other direct cause (whether or not of the same character as the foregoing)
      beyond the reasonable control of the Company, then the Company shall not be
      liable to the Distributor during the period and to the extent of such inability
      or failure. Deliveries omitted in whole or in part while such inability remains
      in effect shall be canceled.

    


    IN
      WITNESS WHEREOF this agreement has been executed by the parties hereto as of
      the
      date first above written.

    


    


    SIGNED,
      SEALED & DELIVERED )

    ) LutCam
      Inc.

    )

    )

    ) 

    ) Name: Kerry
      Tully

    ) Title: President

    )

    )_______________________________________

    )

    )

    ) 

    ) Name: 

    ) Title: 

    


    


    


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    SCHEDULE
      A

    


     

    Current
      Product Pricing

     

    


    
      	
              United
                States Funds

            	
              Canadian
                Funds

            
	
              Order
                Quantity

            	
              Four
                (4) Foot Product Price (per piece)

            	
              Three
                (3) Foot Product Price (per piece)

            	
              Order
                Quantity

            	
              Four
                (4) Foot Product Price (per piece)

            	
              Three
                (3) Foot Product Price (per piece)

            
	
              4000
                +

            	 	 	
              4000
                +

            	 	 
	
              2000-
                3999

            	 	 	
              2000-
                3999

            	 	 
	
              400-
                1999

            	 	 	
              400-
                1999

            	 	 
	
              200-
                399

            	 	 	
              200-
                399

            	 	 
	
              150-199

            	 	 	
              150-199

            	 	 
	
              100-149

            	 	 	
              100-149

            	 	 
	
              50-99

            	 	 	
              50-99