|
Nevada
|
|
20-1117381
|
(State or Other Jurisdiction of
Incorporation or Organization)
|
|
(I.R.S. Employer
Identification No.)
|
618 W. Sunset Road
San Antonio, Texas
|
|
78216
|
(Address of Principal Executive Offices)
|
|
(Zip Code)
|
(Title of each class)
|
|
(Name of each exchange on which registered)
|
Common Stock, par value $.001 per share
|
|
The NASDAQ Stock Market LLC
|
Large accelerated filer
|
¨
|
Accelerated filer
|
¨
|
|
|
|
|
Non-accelerated filer
|
¨
|
Smaller reporting company
|
x
|
|
|
|
|
Emerging growth company
|
x
|
|
|
|
|
Page
|
Item 1A
.
|
||
|
||
|
•
|
the highly competitive nature of our industry;
|
•
|
our current reliance on a limited number of suppliers;
|
•
|
our ability to successfully introduce new products and services;
|
•
|
our ability to achieve benefits from our business initiatives, including identifying and completing suitable acquisitions and investments;
|
•
|
fluctuating revenue and operating results;
|
•
|
our reliance on a single distributor in China;
|
•
|
political, regulatory, economic, and other risks arising from the multi-national nature of our business, including our extensive business in China;
|
•
|
volatility in currency exchange rates;
|
•
|
the potential exit of current key personnel or possibility of failure to attract future qualified personnel;
|
•
|
significant demands related to our rapid growth;
|
•
|
risks related to possible future indebtedness or the availability of future financing;
|
•
|
risks related to internal control over financial reporting;
|
•
|
our lack of experience, and the requirements related to operating, as a U.S. publicly traded company;
|
•
|
our status as an “emerging growth company” under the Jumpstart Our Business Startups Act of 2012;
|
•
|
risks related to our intellectual property;
|
•
|
general global and economic business conditions that may affect demand for our products; and
|
•
|
considerations related to listing our common stock (“Common Stock”) listed on The NASDAQ Stock Market.
|
•
|
we are exempt from the requirement to obtain an attestation and report from our auditors on the effectiveness of our internal control over financial reporting pursuant to Section 404 of the Sarbanes-Oxley Act of 2002, or the Sarbanes-Oxley Act;
|
•
|
we are permitted to provide less extensive disclosure about our executive compensation arrangements; and
|
•
|
we are not required to give our stockholders non-binding advisory votes on executive compensation or approval of golden parachute arrangements.
|
•
|
the usefulness, ease of use, performance, and reliability of our products compared to our competitors;
|
•
|
the timing and market acceptance of products, including developments and enhancements to our products or our competitors’ products;
|
•
|
customer service and support efforts;
|
•
|
marketing and selling efforts;
|
•
|
our financial condition and results of operations;
|
•
|
acquisitions or consolidation within our industry, which may result in more formidable competitors;
|
•
|
our ability to attract, retain, and motivate talented employees;
|
•
|
our ability to cost-effectively manage and grow our operations;
|
•
|
our ability to meet the demands of local markets in high-growth emerging markets, including some in which we have limited experience; and
|
•
|
our reputation and brand strength relative to that of our competitors.
|
•
|
diversion of management time and attention from daily operations;
|
•
|
difficulties integrating acquired businesses, technologies and personnel into our business;
|
•
|
difficulties in obtaining and verifying the financial statements and other business information of acquired businesses;
|
•
|
inability to obtain required regulatory approvals;
|
•
|
potential loss of key employees, key contractual relationships or key customers of acquired companies or of ours;
|
•
|
assumption of the liabilities and e
xposure to unforeseen liabilities of acquired companies; and
|
•
|
dilution of interests of holders of our common stock through the issuance of equity securities or equity-linked securities.
|
•
|
any failure to maintain strong customer relationships;
|
•
|
any failure of significant customers,
including distributors,
to renew their agreements with us;
|
•
|
variations in the demand for our services and products and the use cycles of our services and products by our customers;
|
•
|
changes in our pricing policies or those of our competitors; and
|
•
|
general economic, industry and market conditions and those conditions specific to our business.
|
•
|
changes in general economic and political conditions in countries where we operate, particularly in emerging markets;
|
•
|
relatively more severe economic conditions in some international markets than in the U.S.;
|
•
|
the difficulty of enforcing agreements and collecting receivables through non-U.S. legal systems;
|
•
|
the difficulty of communicating and monitoring standards and directives across our global facilities;
|
•
|
the imposition of trade protection measures and import or export licensing requirements, restrictions, tariffs or exchange controls;
|
•
|
the possibility of terrorist action affecting us or our operations;
|
•
|
the threat of nationalization and expropriation;
|
•
|
difficulty in staffing and managing widespread operations in non-U.S. labor markets;
|
•
|
changes in tax treaties, laws or rulings that could have a material adverse impact on our effective tax rate;
|
•
|
limitations on repatriation of earnings;
|
•
|
the difficulty of protecting intellectual property in non-U.S. countries; and
|
•
|
changes in and required compliance with a variety of non-U.S. laws and regulations.
|
|
Three Months Ended March 31, 2019
|
|
%
of Total Revenue
|
|
Three Months Ended March 31, 2018
|
|
%
of Total Revenue
|
|
$
Change
|
|
%
Change
|
|||||||||
Total revenue
|
$
|
24,725,446
|
|
|
100.0
|
%
|
|
$
|
25,121,520
|
|
|
100.0
|
%
|
|
$
|
(396,074
|
)
|
|
(1.6
|
)%
|
Total cost of sales
|
16,575,366
|
|
|
67.0
|
%
|
|
17,516,375
|
|
|
69.7
|
%
|
|
(941,009
|
)
|
|
(5.4
|
)%
|
|||
Gross margin
|
8,150,080
|
|
|
33.0
|
%
|
|
7,605,145
|
|
|
30.3
|
%
|
|
544,935
|
|
|
7.2
|
%
|
|||
Total operating expenses
|
5,664,635
|
|
|
22.9
|
%
|
|
4,831,697
|
|
|
19.2
|
%
|
|
832,938
|
|
|
17.2
|
%
|
|||
Operating income
|
2,485,445
|
|
|
10.1
|
%
|
|
2,773,448
|
|
|
11.0
|
%
|
|
(288,003
|
)
|
|
(10.4
|
)%
|
|||
Other expenses
|
59,554
|
|
|
0.2
|
%
|
|
23,573
|
|
|
0.1
|
%
|
|
35,981
|
|
|
152.6
|
%
|
|||
Income tax
|
565,888
|
|
|
2.3
|
%
|
|
661,062
|
|
|
2.6
|
%
|
|
(95,174
|
)
|
|
(14.4
|
)%
|
|||
Net income
|
$
|
1,860,003
|
|
|
7.5
|
%
|
|
$
|
2,088,813
|
|
|
8.3
|
%
|
|
$
|
(228,810
|
)
|
|
(11.0
|
)%
|
|
Three Months Ended March 31,
|
|
%
|
|
% of Total Revenue
|
|||||||||||
|
2019
|
|
2018
|
|
Inc (Dec)
|
|
2019
|
|
2018
|
|||||||
Product Revenue
|
|
|
|
|
|
|
|
|
|
|||||||
Paint protection film
|
$
|
18,456,356
|
|
|
$
|
20,216,148
|
|
|
(8.7
|
)%
|
|
74.6
|
%
|
|
80.5
|
%
|
Window film
|
1,832,917
|
|
|
1,171,856
|
|
|
56.4
|
%
|
|
7.4
|
%
|
|
4.7
|
%
|
||
Other
|
765,450
|
|
|
706,238
|
|
|
8.4
|
%
|
|
3.1
|
%
|
|
2.8
|
%
|
||
Total
|
$
|
21,054,723
|
|
|
$
|
22,094,242
|
|
|
(4.7
|
)%
|
|
85.1
|
%
|
|
88.0
|
%
|
|
|
|
|
|
|
|
|
|
|
|||||||
Service Revenue
|
|
|
|
|
|
|
|
|
|
|||||||
Software
|
$
|
743,768
|
|
|
$
|
605,804
|
|
|
22.8
|
%
|
|
3.0
|
%
|
|
2.4
|
%
|
Cutbank credits
|
1,465,133
|
|
|
1,217,161
|
|
|
20.4
|
%
|
|
5.9
|
%
|
|
4.8
|
%
|
||
Installation labor
|
1,298,388
|
|
|
1,105,968
|
|
|
17.4
|
%
|
|
5.3
|
%
|
|
4.4
|
%
|
||
Training
|
163,434
|
|
|
98,345
|
|
|
66.2
|
%
|
|
0.7
|
%
|
|
0.4
|
%
|
||
Total
|
$
|
3,670,723
|
|
|
$
|
3,027,278
|
|
|
21.3
|
%
|
|
14.9
|
%
|
|
12.0
|
%
|
|
|
|
|
|
|
|
|
|
|
|||||||
Total
|
$
|
24,725,446
|
|
|
$
|
25,121,520
|
|
|
(1.6
|
)%
|
|
100.0
|
%
|
|
100.0
|
%
|
|
Three Months Ended March 31,
|
|
%
|
|
% of Total Revenue
|
|||||||||||
|
2019
|
|
2018
|
|
Inc (Dec)
|
|
2019
|
|
2018
|
|||||||
United States
|
$
|
12,509,750
|
|
|
$
|
9,207,415
|
|
|
35.9
|
%
|
|
50.6
|
%
|
|
36.7
|
%
|
China
|
4,519,197
|
|
|
7,824,864
|
|
|
(42.2
|
)%
|
|
18.3
|
%
|
|
31.1
|
%
|
||
Canada
|
3,098,364
|
|
|
3,835,725
|
|
|
(19.2
|
)%
|
|
12.5
|
%
|
|
15.3
|
%
|
||
Continental Europe
|
1,421,732
|
|
|
1,277,999
|
|
|
11.2
|
%
|
|
5.8
|
%
|
|
5.1
|
%
|
||
United Kingdom
|
883,358
|
|
|
623,944
|
|
|
41.6
|
%
|
|
3.6
|
%
|
|
2.5
|
%
|
||
Asia Pacific
|
871,958
|
|
|
513,939
|
|
|
69.7
|
%
|
|
3.5
|
%
|
|
2.0
|
%
|
||
Latin America
|
486,129
|
|
|
804,454
|
|
|
(39.6
|
)%
|
|
1.9
|
%
|
|
3.2
|
%
|
||
Middle East/Africa
|
883,132
|
|
|
925,543
|
|
|
(4.6
|
)%
|
|
3.6
|
%
|
|
3.7
|
%
|
||
Other
|
51,826
|
|
|
107,637
|
|
|
(51.9
|
)%
|
|
0.2
|
%
|
|
0.4
|
%
|
||
Total
|
$
|
24,725,446
|
|
|
$
|
25,121,520
|
|
|
(1.6
|
)%
|
|
100.0
|
%
|
|
100.0
|
%
|
|
Three Months Ended March 31,
|
|
%
|
|
% of Category Revenue
|
|||||||||||
|
2019
|
|
2018
|
|
Inc (Dec)
|
|
2019
|
|
2018
|
|||||||
Product
|
$
|
5,366,690
|
|
|
$
|
5,244,406
|
|
|
2.3
|
%
|
|
25.5
|
%
|
|
23.7
|
%
|
Service
|
2,783,390
|
|
|
2,360,739
|
|
|
17.9
|
%
|
|
75.8
|
%
|
|
78.0
|
%
|
||
|
|
|
|
|
|
|
|
|
|
|||||||
Total
|
$
|
8,150,080
|
|
|
$
|
7,605,145
|
|
|
7.2
|
%
|
|
33.0
|
%
|
|
30.3
|
%
|
|
Year Ended Dec 31, 2018
|
|
Year Ended Dec 31, 2017
|
||||
Net Income
|
$
|
8,721,232
|
|
|
$
|
994,330
|
|
Interest
|
168,389
|
|
|
328,402
|
|
||
Taxes
|
2,760,073
|
|
|
1,154,220
|
|
||
Depreciation
|
735,983
|
|
|
594,712
|
|
||
Amortization
|
642,801
|
|
|
537,334
|
|
||
EBITDA
|
$
|
13,028,478
|
|
|
$
|
3,608,998
|
|
|
Year Ended December 31, 2018
|
|
%
of Total Revenue
|
|
Year Ended December 31, 2017
|
|
%
of Total Revenue
|
|
$
Change
|
|
%
Change
|
|||||||||
Total revenue
|
$
|
109,920,614
|
|
|
100.0
|
%
|
|
$
|
67,297,044
|
|
|
100.0
|
%
|
|
$
|
42,623,570
|
|
|
63.3
|
%
|
Total cost of sales
|
76,484,009
|
|
|
69.6
|
%
|
|
50,613,212
|
|
|
75.2
|
%
|
|
25,870,797
|
|
|
51.1
|
%
|
|||
Gross margin
|
33,436,605
|
|
|
30.4
|
%
|
|
16,683,832
|
|
|
24.8
|
%
|
|
16,752,773
|
|
|
100.4
|
%
|
|||
Total operating expenses
|
21,604,869
|
|
|
19.7
|
%
|
|
14,472,327
|
|
|
21.5
|
%
|
|
7,132,542
|
|
|
49.3
|
%
|
|||
Operating income
|
11,831,736
|
|
|
10.8
|
%
|
|
2,211,505
|
|
|
3.3
|
%
|
|
9,620,231
|
|
|
435.0
|
%
|
|||
Other expenses
|
350,431
|
|
|
0.3
|
%
|
|
62,955
|
|
|
0.1
|
%
|
|
287,476
|
|
|
456.6
|
%
|
|||
Income tax
|
2,760,073
|
|
|
2.5
|
%
|
|
1,154,220
|
|
|
1.7
|
%
|
|
1,605,853
|
|
|
139.1
|
%
|
|||
Net income
|
$
|
8,721,232
|
|
|
7.9
|
%
|
|
$
|
994,330
|
|
|
1.5
|
%
|
|
$
|
7,726,902
|
|
|
777.1
|
%
|
|
Year Ended December 31,
|
|
%
|
|
% of Total Revenue
|
|||||||||||
|
2018
|
|
2017
|
|
Inc (Dec)
|
|
2018
|
|
2017
|
|||||||
Product Revenue
|
|
|
|
|
|
|
|
|
|
|||||||
Paint protection film
|
$
|
85,495,382
|
|
|
$
|
49,489,430
|
|
|
72.8
|
%
|
|
77.8
|
%
|
|
73.5
|
%
|
Window film
|
7,309,773
|
|
|
5,103,080
|
|
|
43.2
|
%
|
|
6.7
|
%
|
|
7.6
|
%
|
||
Other
|
2,721,195
|
|
|
1,755,639
|
|
|
55.0
|
%
|
|
2.5
|
%
|
|
2.6
|
%
|
||
Total
|
$
|
95,526,350
|
|
|
$
|
56,348,149
|
|
|
69.5
|
%
|
|
87.0
|
%
|
|
83.7
|
%
|
|
|
|
|
|
|
|
|
|
|
|||||||
Service Revenue
|
|
|
|
|
|
|
|
|
|
|||||||
Software
|
$
|
2,566,960
|
|
|
$
|
2,820,709
|
|
|
(9.0
|
)%
|
|
2.3
|
%
|
|
4.2
|
%
|
Cutbank credits
|
6,197,250
|
|
|
4,145,745
|
|
|
49.5
|
%
|
|
5.6
|
%
|
|
6.2
|
%
|
||
Installation labor
|
5,211,633
|
|
|
3,709,517
|
|
|
40.5
|
%
|
|
4.7
|
%
|
|
5.5
|
%
|
||
Training
|
418,421
|
|
|
272,924
|
|
|
53.3
|
%
|
|
0.4
|
%
|
|
0.4
|
%
|
||
Total
|
$
|
14,394,264
|
|
|
$
|
10,948,895
|
|
|
31.5
|
%
|
|
13.0
|
%
|
|
16.3
|
%
|
|
|
|
|
|
|
|
|
|
|
|||||||
Total
|
$
|
109,920,614
|
|
|
$
|
67,297,044
|
|
|
63.3
|
%
|
|
100.0
|
%
|
|
100.0
|
%
|
|
Year Ended December 31,
|
|
%
|
|
% of Total Revenue
|
|||||||||||
|
2018
|
|
2017
|
|
Inc (Dec)
|
|
2018
|
|
2017
|
|||||||
United States
|
$
|
46,077,624
|
|
|
$
|
33,134,851
|
|
|
39.1
|
%
|
|
41.9
|
%
|
|
49.2
|
%
|
China
|
32,279,335
|
|
|
11,873,582
|
|
|
171.9
|
%
|
|
29.4
|
%
|
|
17.6
|
%
|
||
Canada
|
15,146,869
|
|
|
10,693,002
|
|
|
41.7
|
%
|
|
13.8
|
%
|
|
15.9
|
%
|
||
Continental Europe
|
5,734,925
|
|
|
2,751,718
|
|
|
108.4
|
%
|
|
5.2
|
%
|
|
4.1
|
%
|
||
United Kingdom
|
2,725,925
|
|
|
1,690,664
|
|
|
61.2
|
%
|
|
2.5
|
%
|
|
2.5
|
%
|
||
Asia Pacific
|
2,754,495
|
|
|
2,293,285
|
|
|
20.1
|
%
|
|
2.5
|
%
|
|
3.4
|
%
|
||
Latin America
|
1,799,180
|
|
|
829,378
|
|
|
116.9
|
%
|
|
1.6
|
%
|
|
1.2
|
%
|
||
Middle East/Africa
|
2,806,502
|
|
|
3,331,376
|
|
|
(15.8
|
)%
|
|
2.6
|
%
|
|
5.0
|
%
|
||
Other
|
595,759
|
|
|
699,188
|
|
|
(14.8
|
)%
|
|
0.5
|
%
|
|
1.1
|
%
|
||
Total
|
$
|
109,920,614
|
|
|
$
|
67,297,044
|
|
|
63.3
|
%
|
|
100.0
|
%
|
|
100.0
|
%
|
|
Year Ended December 31,
|
|
%
|
|
% of Category Revenue
|
|||||||||||
|
2018
|
|
2017
|
|
Inc (Dec)
|
|
2018
|
|
2017
|
|||||||
Product
|
$
|
21,869,961
|
|
|
$
|
8,296,688
|
|
|
163.6
|
%
|
|
22.9
|
%
|
|
14.7
|
%
|
Service
|
11,566,644
|
|
|
8,387,144
|
|
|
37.9
|
%
|
|
80.4
|
%
|
|
76.6
|
%
|
||
|
|
|
|
|
|
|
|
|
|
|||||||
Total
|
$
|
33,436,605
|
|
|
$
|
16,683,832
|
|
|
100.4
|
%
|
|
30.4
|
%
|
|
24.8
|
%
|
Location
|
Leased or Owned
|
|
Square Footage
|
|
Facility Activity
|
Headquarters:
|
|
|
|
|
|
San Antonio, Texas
|
Leased
|
|
16,651
|
|
Training/Admin functions
|
Other Properties:
|
|
|
|
|
|
Austin, Texas
|
Leased
|
|
3,880
|
|
Sales/Installation
|
Boise, Idaho
|
Leased
|
|
4,986
|
|
Sales/Installation
|
Calgary, Alberta, Canada
|
Leased
|
|
5,680
|
|
Warehouse/Sales/Training
|
Dallas, Texas
|
Leased
|
|
1,625
|
|
Sales/Installation
|
Dallas, Texas
|
Leased
|
|
1,125
|
|
Sales/Installation
|
Guadalajara, Jalisco, Mexico
|
Leased
|
|
6,830
|
|
Warehouse/Sales/Training
|
Houston, Texas
|
Leased
|
|
7,780
|
|
Sales/Installation
|
Las Vegas, Nevada
|
Leased
|
|
6,864
|
|
Sales/Installation
|
Letchworth, United Kingdom
|
Leased
|
|
3,632
|
|
Sales/Installation/Training
|
San Antonio, Texas
|
Leased
|
|
48,770
|
|
Warehouse/production
|
San Antonio, Texas
|
Leased
|
|
4,992
|
|
Sales/Installation
|
Terrebonne, Quebec, Canada
|
Leased
|
|
12,440
|
|
Warehouse/Sales/Training
|
Tilburg, The Netherlands
|
Leased
|
|
21,527
|
|
Warehouse/Sales/Training
|
Yilan City, Yilan County, Taiwan
|
Leased
|
|
4,300
|
|
Warehouse/Sales
|
*
|
Less than one percent (1%)
|
(1)
|
2,079,793 Common Stock are held by Adamas, LLC; 2,329,906 shares of Common Stock are held by Carpe, LLC; and 225,000 shares of Common Stock are held by Crumly Family Partners, Ltd. Mr. Crumly has represented to the Company that he is the sole beneficial owner of all of these shares.
|
Name
|
|
Age
|
|
Position(s) Presently Held
|
Ryan L. Pape
|
|
37
|
|
President, Chief Executive Officer and Director
|
Barry R. Wood
|
|
56
|
|
Senior Vice President and Chief Financial Officer
|
|
|
|
|
|
John A. Constantine
|
|
59
|
|
Director
|
Richard K. Crumly
|
|
62
|
|
Director
|
Michael A. Klonne
|
|
67
|
|
Director
|
Mark E. Adams
|
|
57
|
|
Director
|
•
|
Serve as an independent and objective party to monitor the Company’s financial reporting and internal control systems and review the Company’s consolidated financial statements;
|
•
|
Review and appraise the performance of the Company’s independent registered public accounting firm; and
|
•
|
Provide an open avenue of communication among the Company’s independent registered public accounting firm, financial and senior management and the Board
|
•
|
identifying individuals qualified to become members of our Board and recommending director candidates for election or re-election to our Board;
|
•
|
maintaining oversight of our Board and our governance functions and effectiveness;
|
•
|
considering and making recommendations to our Board regarding board size and composition, committee composition and structure and procedures affecting directors, and each director’s independence;
|
•
|
establishing standards for service on our Board; and
|
•
|
advising the Board on candidates for our executive offices, and conducting appropriate investigation of such candidates.
|
Name
(1)
|
|
Fee Earned
($)
|
|
Total
($)
|
||
Mark Adams
|
|
63,000
|
|
|
63,000
|
|
John A. Constantine
|
|
67,100
|
|
|
67,100
|
|
Richard K. Crumly
|
|
61,150
|
|
|
61,150
|
|
Mike Klonne
(2)
|
|
62,700
|
|
|
62,700
|
|
(1)
|
Information for Ryan Pape, the Chief Executive Officer of the Company is provided under “Summary Compensation Table”. Mr. Pape does not receive any compensation for acting as a director of the Company.
|
(2)
|
Mr. Klonne was appointed to the Board on June 30, 2017
|
Name and Principal Position
|
|
Year
|
|
Salary
($)
|
|
Bonus
($)
|
|
Stock awards
($)
|
|
Option awards
($)
|
|
Nonequity
incentive plan
compensation
($)
|
|
Nonqualified
deferred
compensation
earnings
($)
|
|
All other compensation
($)
(1)
|
|
Total
($)
|
||||||||
Ryan L. Pape
President and CEO
|
|
2018
|
|
350,000
|
|
|
162,750
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
23,760
|
|
|
536,510
|
|
|
|
2017
|
|
260,000
|
|
|
91,000
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
21,695
|
|
|
372,695
|
|
Barry R. Wood
Senior Vice President and CFO
|
|
2018
|
|
260,000
|
|
|
90,675
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
12,000
|
|
|
362,675
|
|
|
|
2017
|
|
225,000
|
|
|
36,562
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
12,000
|
|
|
273,562
|
|
(1)
|
All other compensation represents matching contributions for 401K and health insurance premiums.
|
(Shares in million) Plan Category
|
|
Number of Securities to be Issued Upon Exercise of Outstanding Options, Warrants and Rights
|
|
Weighted Average Exercise Price of Number of Securities to be Issued Upon Exercise of Outstanding Options, Warrants and Rights
|
|
Number of Securities Remaining Available for Future Issuance Under Equity Compensation Plans Approved by Stockholders
|
Equity compensation plans approved by stockholders
|
|
—
|
|
—
|
|
—
|
Equity compensation plans not approved by stockholders
|
|
—
|
|
—
|
|
—
|
Total
|
|
—
|
|
—
|
|
—
|
•
|
Authorizing our Board to adopt, amend or repeal our Amended and Restated By-Laws without stockholder approval;
|
•
|
Requiring advance notice of any stockholder nomination for the election of directors or any stockholder proposal;
|
•
|
Requiring any stockholder action to be taken only at a duly called annual or special meeting of the stockholders, and not by written consent;
|
•
|
Authorizing only our Board, and not stockholders, to fix the number of directors; and
|
•
|
Authorizing only our Board to fill director vacancies and newly created directorships.
|
|
Page
|
Number
|
|
Description
|
3.1
|
|
|
|
|
|
3.2
|
|
|
|
|
|
3.3
|
|
|
|
|
|
3.4
|
|
|
|
|
|
4.1
|
|
|
|
|
|
10.1
|
|
|
|
|
|
10.2
|
|
|
|
|
|
10.3
|
|
|
|
|
|
10.4
|
|
|
|
|
|
10.5
|
|
|
|
|
|
10.6
|
|
|
|
|
|
14.1
|
|
|
|
|
|
21.1
|
|
*
|
Filed herewith
|
**
|
Previously filed
|
|
(Unaudited)
|
|
(Audited)
|
||||
|
March 31, 2019
|
|
December 31, 2018
|
||||
Assets
|
|
|
|
||||
Current
|
|
|
|
||||
Cash and cash equivalents
|
$
|
4,376,325
|
|
|
$
|
3,971,226
|
|
Accounts receivable, net
|
5,948,048
|
|
|
5,554,313
|
|
||
Inventory, net
|
13,586,897
|
|
|
10,799,611
|
|
||
Prepaid expenses and other current assets
|
976,605
|
|
|
706,718
|
|
||
Total current assets
|
24,887,875
|
|
|
21,031,868
|
|
||
Property and equipment, net
|
3,561,133
|
|
|
3,384,206
|
|
||
Right-of-Use lease assets
|
4,145,789
|
|
|
—
|
|
||
Intangible assets, net
|
3,674,924
|
|
|
3,804,026
|
|
||
Other assets
|
37,452
|
|
|
—
|
|
||
Goodwill
|
2,320,384
|
|
|
2,322,788
|
|
||
Total assets
|
$
|
38,627,557
|
|
|
$
|
30,542,888
|
|
Liabilities
|
|
|
|
||||
Current
|
|
|
|
||||
Current portion of notes payable
|
836,133
|
|
|
853,150
|
|
||
Current portion lease liabilities
|
1,020,554
|
|
|
—
|
|
||
Accounts payable and accrued liabilities
|
8,462,688
|
|
|
6,292,093
|
|
||
Income tax payable
|
1,253,153
|
|
|
1,337,599
|
|
||
Total current liabilities
|
11,572,528
|
|
|
8,482,842
|
|
||
Deferred tax liability, net
|
450,899
|
|
|
478,864
|
|
||
Noncurrent portion of lease liabilities
|
3,218,052
|
|
|
—
|
|
||
Notes payable
|
833,872
|
|
|
968,237
|
|
||
Total liabilities
|
16,075,351
|
|
|
9,929,943
|
|
||
Stockholders’ equity
|
|
|
|
||||
Preferred stock, $0.001 par value; authorized 10,000,000; none issued and outstanding
|
—
|
|
|
—
|
|
||
Common stock, $0.001 par value; 100,000,000 shares authorized; 27,612,597 and 27,612,597 issued and outstanding, respectively
|
27,613
|
|
|
27,613
|
|
||
Additional paid-in-capital
|
11,348,163
|
|
|
11,348,163
|
|
||
Accumulated other comprehensive loss
|
(1,115,605
|
)
|
|
(1,190,055
|
)
|
||
Retained earnings
|
12,475,840
|
|
|
10,617,253
|
|
||
|
22,736,011
|
|
|
20,802,974
|
|
||
Non-controlling interest
|
(183,805
|
)
|
|
(190,029
|
)
|
||
Total stockholders’ equity
|
22,552,206
|
|
|
20,612,945
|
|
||
Total liabilities and stockholders’ equity
|
$
|
38,627,557
|
|
|
$
|
30,542,888
|
|
|
Three months ended March 31,
|
||||||
|
2019
|
|
2018
|
||||
Revenue
|
|
|
|
||||
Product revenue
|
$
|
21,054,723
|
|
|
$
|
22,094,242
|
|
Service revenue
|
3,670,723
|
|
|
3,027,278
|
|
||
Total revenue
|
24,725,446
|
|
|
25,121,520
|
|
||
|
|
|
|
||||
Cost of Sales
|
|
|
|
||||
Cost of product sales
|
15,688,033
|
|
|
16,849,836
|
|
||
Cost of service
|
887,333
|
|
|
666,539
|
|
||
Total cost of sales
|
16,575,366
|
|
|
17,516,375
|
|
||
Gross Margin
|
8,150,080
|
|
|
7,605,145
|
|
||
|
|
|
|
||||
Operating Expenses
|
|
|
|
||||
Sales and marketing
|
1,599,106
|
|
|
1,620,510
|
|
||
General and administrative
|
4,065,529
|
|
|
3,211,187
|
|
||
Total operating expenses
|
5,664,635
|
|
|
4,831,697
|
|
||
|
|
|
|
||||
Operating Income
|
2,485,445
|
|
|
2,773,448
|
|
||
|
|
|
|
||||
Interest expense
|
28,706
|
|
|
56,954
|
|
||
Loss on sale of property, plant and equipment
|
12,422
|
|
|
—
|
|
||
Foreign exchange loss (gain)
|
18,426
|
|
|
(33,381
|
)
|
||
|
|
|
|
||||
Income before income taxes
|
2,425,891
|
|
|
2,749,875
|
|
||
Income tax expense
|
565,888
|
|
|
661,062
|
|
||
Net income
|
1,860,003
|
|
|
2,088,813
|
|
||
Income (loss) attributed to non-controlling interest
|
1,416
|
|
|
(8,545
|
)
|
||
Net income attributable to stockholders of the Company
|
$
|
1,858,587
|
|
|
$
|
2,097,358
|
|
|
|
|
|
||||
Earnings per share attributable stockholders of the Company
|
|
|
|
||||
Basic and diluted
|
$
|
0.07
|
|
|
$
|
0.08
|
|
Weighted Average Number of Common Shares
|
|
|
|
||||
Basic and diluted
|
27,612,597
|
|
|
27,612,597
|
|
|
Three months ended March 31,
|
||||||
|
2019
|
|
2018
|
||||
Other comprehensive income
|
|
|
|
||||
Net income
|
$
|
1,860,003
|
|
|
$
|
2,088,813
|
|
Foreign currency translation
|
79,258
|
|
|
(129,947
|
)
|
||
Total comprehensive income
|
1,939,261
|
|
|
1,958,866
|
|
||
Total comprehensive income attributable to:
|
|
|
|
||||
Stockholders of the Company
|
1,933,037
|
|
|
1,973,141
|
|
||
Non-controlling interest
|
6,224
|
|
|
(14,275
|
)
|
||
Total comprehensive income
|
$
|
1,939,261
|
|
|
1,958,866
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||
|
Common Stock
|
|
Additional Paid-in-Capital
|
|
Retained
Earnings |
|
Accumulated
Other Comprehensive Loss |
|
Equity
attributable to Stockholders of the Company |
|
Non-Controlling
Interest |
|
Total Stockholders’ Equity
|
|||||||||||||||||
|
Shares
|
|
Amount
|
|
|
|
|
|
|
|||||||||||||||||||||
Balance as of December 31, 2017
|
27,612,597
|
|
|
$
|
27,613
|
|
|
$
|
11,348,163
|
|
|
$
|
1,904,719
|
|
|
$
|
(596,683
|
)
|
|
$
|
12,683,812
|
|
|
$
|
(188,426
|
)
|
|
$
|
12,495,386
|
|
Net income
|
—
|
|
|
—
|
|
|
—
|
|
|
2,097,358
|
|
|
—
|
|
|
2,097,358
|
|
|
(8,545
|
)
|
|
2,088,813
|
|
|||||||
Foreign currency translation
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(124,217
|
)
|
|
(124,217
|
)
|
|
(5,730
|
)
|
|
(129,947
|
)
|
|||||||
Balance as of March 31, 2018
|
27,612,597
|
|
|
27,613
|
|
|
11,348,163
|
|
|
4,002,077
|
|
|
(720,900
|
)
|
|
14,656,953
|
|
|
(202,701
|
)
|
|
14,454,252
|
|
|||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||
Balance as of December 31, 2018
|
27,612,597
|
|
|
27,613
|
|
|
11,348,163
|
|
|
10,617,253
|
|
|
(1,190,055
|
)
|
|
20,802,974
|
|
|
(190,029
|
)
|
|
20,612,945
|
|
|||||||
Net income
|
—
|
|
|
—
|
|
|
—
|
|
|
1,858,587
|
|
|
—
|
|
|
1,858,587
|
|
|
1,416
|
|
|
1,860,003
|
|
|||||||
Foreign currency translation
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
74,450
|
|
|
74,450
|
|
|
4,808
|
|
|
79,258
|
|
|||||||
Balance as of March 31, 2019
|
27,612,597
|
|
|
$
|
27,613
|
|
|
$
|
11,348,163
|
|
|
$
|
12,475,840
|
|
|
$
|
(1,115,605
|
)
|
|
$
|
22,736,011
|
|
|
$
|
(183,805
|
)
|
|
$
|
22,552,206
|
|
|
Three Months Ended March 31,
|
||||||
|
2019
|
|
2018
|
||||
Cash flows from operating activities
|
|
|
|
||||
Net income
|
$
|
1,860,003
|
|
|
$
|
2,088,813
|
|
Adjustments to reconcile net income to net cash provided by operating activities:
|
|
|
|
||||
Depreciation of property, plant and equipment
|
200,818
|
|
|
159,318
|
|
||
Amortization of intangible assets
|
184,548
|
|
|
136,637
|
|
||
Impairments
|
66,364
|
|
|
—
|
|
||
Loss on sale of property and equipment
|
12,422
|
|
|
—
|
|
||
Bad debt expense
|
58,738
|
|
|
116,000
|
|
||
Deferred income tax
|
(41,439
|
)
|
|
(24,206
|
)
|
||
Accretion on notes payable
|
19,978
|
|
|
14,597
|
|
||
|
|
|
|
|
|
||
Changes in current assets and liabilities:
|
|
|
|
||||
Accounts receivable
|
(414,560
|
)
|
|
(1,095,017
|
)
|
||
Inventory, net
|
(2,780,162
|
)
|
|
(346,531
|
)
|
||
Prepaid expenses and other current assets
|
(269,154
|
)
|
|
74,377
|
|
||
Other assets
|
(37,715
|
)
|
|
—
|
|
||
Accounts payable and accrued liabilities
|
2,241,833
|
|
|
(195,449
|
)
|
||
Income tax payable
|
(86,825
|
)
|
|
(231,094
|
)
|
||
Net cash provided by operating activities
|
1,014,849
|
|
|
697,445
|
|
||
Cash flows used in investing activities
|
|
|
|
||||
Purchase of property, plant and equipment
|
(400,814
|
)
|
|
(163,982
|
)
|
||
Proceeds from sale of property and equipment
|
14,629
|
|
|
—
|
|
||
Development of intangible assets
|
(55,425
|
)
|
|
(31,340
|
)
|
||
Net cash used in investing activities
|
(441,610
|
)
|
|
(195,322
|
)
|
||
Cash flows from financing activities
|
|
|
|
||||
Repayments of notes payable
|
(188,406
|
)
|
|
(407,302
|
)
|
||
Net cash used in financing activities
|
(188,406
|
)
|
|
(407,302
|
)
|
||
Net change in cash and cash equivalents
|
384,833
|
|
|
94,821
|
|
||
Foreign exchange impact on cash and cash equivalents
|
20,266
|
|
|
(164,691
|
)
|
||
Increase (decrease) in cash and cash equivalents during the period
|
405,099
|
|
|
(69,870
|
)
|
||
Cash and cash equivalents at beginning of year
|
3,971,226
|
|
|
3,498,904
|
|
||
Cash and cash equivalents at end of year
|
$
|
4,376,325
|
|
|
$
|
3,429,034
|
|
|
|
|
|
||||
Supplemental cash flow information
|
|
|
|
||||
Cash paid for income taxes
|
$
|
759,803
|
|
|
$
|
807,369
|
|
Cash paid for interest
|
$
|
7,644
|
|
|
$
|
47,295
|
|
Subsidiaries
|
|
Functional Currency
|
|
% Owned by XPEL, Inc.
|
|
XPEL, Ltd.
|
|
UK Pound Sterling
|
|
85
|
%
|
Armourfend CAD, LLC
|
|
US Dollar
|
|
100
|
%
|
XPEL Canada Corp.
|
|
Canadian Dollar
|
|
100
|
%
|
XPEL B.V.
|
|
Euro
|
|
100
|
%
|
XPEL de Mexico S. de R.L. de C.V.
|
|
Peso
|
|
100
|
%
|
XPEL Acquisition Corp.
|
|
Canadian Dollar
|
|
100
|
%
|
Protex Canada, Inc.
|
|
Canadian Dollar
|
|
100
|
%
|
Apogee Corp.
|
|
New Taiwan Dollar
|
|
100
|
%
|
•
|
Identification of the contract, or contracts, with a customer
|
•
|
Identification of the performance obligations in the contract
|
•
|
Determination of the transaction price
|
•
|
Allocation of the transaction price to the performance obligations in the contract
|
•
|
Recognition of revenue when, or as, the Company satisfies a performance obligation
|
|
Three Months Ended March 31,
|
||||||
|
2019
|
|
2018
|
||||
Product Revenue
|
|
|
|
||||
Paint protection film
|
$
|
18,456,356
|
|
|
$
|
20,216,148
|
|
Window film
|
1,832,917
|
|
|
1,171,856
|
|
||
Other
|
765,450
|
|
|
706,238
|
|
||
Total
|
21,054,723
|
|
|
22,094,242
|
|
||
|
|
|
|
||||
Service Revenue
|
|
|
|
||||
Software
|
$
|
743,768
|
|
|
605,804
|
|
|
Cutbank credits
|
1,465,133
|
|
|
1,217,161
|
|
||
Installation labor
|
1,298,388
|
|
|
1,105,968
|
|
||
Training
|
163,434
|
|
|
98,345
|
|
||
Total
|
3,670,723
|
|
|
3,027,278
|
|
||
|
|
|
|
||||
Total
|
$
|
24,725,446
|
|
|
$
|
25,121,520
|
|
|
March 31, 2019
|
|
December 31, 2018
|
||||
Furniture and fixtures
|
$
|
971,204
|
|
|
$
|
956,467
|
|
Computer equipment
|
971,049
|
|
|
939,979
|
|
||
Vehicles
|
712,610
|
|
|
730,765
|
|
||
Equipment
|
1,111,696
|
|
|
1,079,503
|
|
||
Leasehold improvements
|
1,123,081
|
|
|
941,627
|
|
||
Plotters
|
592,183
|
|
|
544,080
|
|
||
Construction in Progress
|
711,559
|
|
|
646,576
|
|
||
Total property and equipment
|
6,193,382
|
|
|
5,838,997
|
|
||
Less accumulated depreciation
|
2,632,249
|
|
|
2,454,791
|
|
||
Property and equipment, net
|
$
|
3,561,133
|
|
|
$
|
3,384,206
|
|
|
March 31, 2019
|
|
December 31, 2018
|
||||
Trademarks
|
$
|
289,734
|
|
|
$
|
289,734
|
|
DAP software platform
|
1,691,070
|
|
|
1,635,731
|
|
||
Trade name
|
461,267
|
|
|
457,766
|
|
||
Contractual and customer relationships
|
2,951,739
|
|
|
2,947,264
|
|
||
Non-compete
|
264,807
|
|
|
261,914
|
|
||
Other
|
151,130
|
|
|
150,267
|
|
||
Total cost
|
5,809,747
|
|
|
5,742,676
|
|
||
Less: Accumulated amortization
|
2,134,823
|
|
|
1,938,650
|
|
||
Intangible assets, net
|
$
|
3,674,924
|
|
|
$
|
3,804,026
|
|
Balance December 31, 2017
|
$
|
1,856,642
|
|
Foreign Exchange
|
(36,455
|
)
|
|
Balance at March 31, 2018
|
$
|
1,820,187
|
|
|
|
||
Balance December 31, 2018
|
$
|
2,322,788
|
|
Impairment
|
(35,884
|
)
|
|
Foreign Exchange
|
33,480
|
|
|
Balance March 31, 2019
|
$
|
2,320,384
|
|
|
March 31, 2019
|
|
December 31,
2018
|
||||
Film and film based products
|
$
|
12,021,556
|
|
|
$
|
9,399,067
|
|
Other products
|
1,307,790
|
|
|
1,264,862
|
|
||
Packaging and supplies
|
364,970
|
|
|
320,738
|
|
||
Inventory Reserve
|
(107,419
|
)
|
|
(185,056
|
)
|
||
|
$
|
13,586,897
|
|
|
$
|
10,799,611
|
|
|
Weighted Average Interest Rate
|
|
Matures
|
|
March 31,
|
|
December 31,
|
||||
|
|
|
2019
|
|
2018
|
||||||
Acquisition Notes Payable
|
4.49%
|
|
2022
|
|
1,670,005
|
|
|
1,821,387
|
|
||
Total Debt
|
|
|
|
|
1,670,005
|
|
|
1,821,387
|
|
||
Current Portion
|
|
|
|
|
836,133
|
|
|
853,150
|
|
||
Total Long-term debt
|
|
|
|
|
$
|
833,872
|
|
|
$
|
968,237
|
|
|
March 31, 2019
|
|
December 31, 2018
|
||||
Trade payables
|
$
|
6,663,285
|
|
|
$
|
3,905,187
|
|
Payroll liabilities
|
644,239
|
|
|
1,194,237
|
|
||
Customer deposits
|
315,003
|
|
|
136,213
|
|
||
Other liabilities
|
840,161
|
|
|
1,056,456
|
|
||
|
$
|
8,462,688
|
|
|
$
|
6,292,093
|
|
Notes payable
|
March 31, 2019
|
|
December 31, 2018
|
||||
Current maturities of notes payable
|
$
|
836,133
|
|
|
$
|
853,150
|
|
Long-term portion of notes payable
|
833,872
|
|
|
968,237
|
|
||
Fair Value of notes payable
|
$
|
1,670,005
|
|
|
$
|
1,821,387
|
|
(a)
|
Contingencies
|
(b)
|
Supply Agreement
|
|
March 31, 2019
|
||
Operating lease ROU assets
|
$
|
4,145,789
|
|
|
|
||
Current portion of operating lease liabilities
|
1,020,554
|
|
|
Noncurrent portion of operating lease liabilities
|
3,218,052
|
|
|
Total operating lease liabilities
|
$
|
4,238,606
|
|
|
March 31, 2019
|
|
Weighted-average remaining lease term (in years)
|
6.39
|
|
Weighted-average discount rate
|
5.87
|
%
|
2019
|
$
|
1,053,429
|
|
2020
|
854,831
|
|
|
2021
|
749,165
|
|
|
2022
|
668,171
|
|
|
2023
|
577,662
|
|
|
Thereafter
|
1,373,520
|
|
|
Total operating lease payments
|
5,276,778
|
|
|
Less interest
|
(1,038,172
|
)
|
|
Total operating lease liabilities
|
$
|
4,238,606
|
|
2019
|
$
|
869,492
|
|
2020
|
736,169
|
|
|
2021
|
667,551
|
|
|
2022
|
601,593
|
|
|
2023
|
528,427
|
|
|
Thereafter
|
1,372,388
|
|
|
|
$
|
4,775,620
|
|
/s/ Baker Tilly Virchow Krause, LLP
|
|
We have served as the Company’s auditor since 2017.
|
|
Minneapolis, Minnesota
|
|
March 12, 2019
|
|
December 31, 2018
|
|
December 31, 2017
|
||||
Assets
|
|
|
|
||||
Current
|
|
|
|
||||
Cash and cash equivalents
|
$
|
3,971,226
|
|
|
$
|
3,498,904
|
|
Accounts receivable, net
|
5,554,313
|
|
|
5,445,036
|
|
||
Inventory, net
|
10,799,611
|
|
|
10,520,794
|
|
||
Prepaid expenses and other current assets
|
706,718
|
|
|
774,762
|
|
||
Total current assets
|
21,031,868
|
|
|
20,239,496
|
|
||
Property and equipment, net
|
3,384,206
|
|
|
2,153,233
|
|
||
Intangible assets, net
|
3,804,026
|
|
|
3,562,772
|
|
||
Goodwill
|
2,322,788
|
|
|
1,856,642
|
|
||
Total assets
|
$
|
30,542,888
|
|
|
$
|
27,812,143
|
|
Liabilities
|
|
|
|
||||
Current
|
|
|
|
||||
Revolving line of credit
|
$
|
—
|
|
|
$
|
2,000,000
|
|
Current portion of notes payable
|
853,150
|
|
|
1,024,434
|
|
||
Accounts payable and accrued liabilities
|
6,292,093
|
|
|
9,718,833
|
|
||
Income tax payable
|
1,337,599
|
|
|
1,171,618
|
|
||
Total current liabilities
|
8,482,842
|
|
|
13,914,885
|
|
||
Deferred tax liability, net
|
478,864
|
|
|
474,440
|
|
||
Notes payable
|
968,237
|
|
|
927,432
|
|
||
Total liabilities
|
9,929,943
|
|
|
15,316,757
|
|
||
Stockholders’ equity
|
|
|
|
||||
Preferred stock, $0.001 par value; authorized 10,000,000; none issued and outstanding
|
—
|
|
|
—
|
|
||
Common stock, $0.001 par value; authorized 100,000,000; as of December 31, 2018 and 2017, 27,612,597 issued and outstanding
|
27,613
|
|
|
27,613
|
|
||
Additional paid-in-capital
|
11,348,163
|
|
|
11,348,163
|
|
||
Accumulated other comprehensive loss
|
(1,190,055
|
)
|
|
(596,683
|
)
|
||
Retained earnings
|
10,617,253
|
|
|
1,904,719
|
|
||
|
20,802,974
|
|
|
12,683,812
|
|
||
Non-controlling interest
|
(190,029
|
)
|
|
(188,426
|
)
|
||
Total stockholders’ equity
|
20,612,945
|
|
|
12,495,386
|
|
||
Total liabilities and stockholders’ equity
|
$
|
30,542,888
|
|
|
$
|
27,812,143
|
|
|
Year Ended December 31,
|
||||||
|
2018
|
|
2017
|
||||
Revenue
|
|
|
|
||||
Product revenue
|
$
|
95,526,350
|
|
|
$
|
56,348,149
|
|
Service revenue
|
14,394,264
|
|
|
10,948,895
|
|
||
Total revenue
|
109,920,614
|
|
|
67,297,044
|
|
||
|
|
|
|
||||
Cost of Sales
|
|
|
|
||||
Cost of product sales
|
73,656,389
|
|
|
48,051,461
|
|
||
Cost of service
|
2,827,620
|
|
|
2,561,751
|
|
||
Total cost of sales
|
76,484,009
|
|
|
50,613,212
|
|
||
Gross Margin
|
33,436,605
|
|
|
16,683,832
|
|
||
|
|
|
|
||||
Operating Expenses
|
|
|
|
||||
Sales and marketing
|
6,802,241
|
|
|
4,945,390
|
|
||
General and administrative
|
14,802,628
|
|
|
9,526,937
|
|
||
Total operating expenses
|
21,604,869
|
|
|
14,472,327
|
|
||
|
|
|
|
||||
Operating Income
|
11,831,736
|
|
|
2,211,505
|
|
||
|
|
|
|
||||
Interest expense
|
168,389
|
|
|
328,402
|
|
||
Loss (gain) on sale of property, plant and equipment
|
25,733
|
|
|
(13,251
|
)
|
||
Foreign exchange loss (gain)
|
156,309
|
|
|
(252,196
|
)
|
||
|
|
|
|
||||
Income before income taxes
|
11,481,305
|
|
|
2,148,550
|
|
||
Income tax expense
|
2,760,073
|
|
|
1,154,220
|
|
||
Net income
|
8,721,232
|
|
|
994,330
|
|
||
Income (loss) attributed to non-controlling interest
|
8,698
|
|
|
(53,001
|
)
|
||
Net income attributable to stockholders of the Company
|
$
|
8,712,534
|
|
|
$
|
1,047,331
|
|
|
|
|
|
||||
Earnings per share attributable stockholders of the Company
|
|
|
|
||||
Basic and diluted
|
$
|
0.32
|
|
|
$
|
0.04
|
|
Weighted Average Number of Common Shares
|
|
|
|
||||
Basic and diluted
|
27,612,597
|
|
|
27,326,261
|
|
|
Year Ended December 31,
|
||||||
|
2018
|
|
2017
|
||||
Other comprehensive income
|
|
|
|
||||
Net income
|
$
|
8,721,232
|
|
|
$
|
994,330
|
|
Foreign currency translation
|
(603,673
|
)
|
|
238,410
|
|
||
Total comprehensive income
|
8,117,559
|
|
|
1,232,740
|
|
||
Total comprehensive income attributable to:
|
|
|
|
||||
Stockholders of the Company
|
8,119,162
|
|
|
1,268,409
|
|
||
Non-controlling interest
|
(1,603
|
)
|
|
(35,669
|
)
|
||
Total comprehensive income
|
$
|
8,117,559
|
|
|
1,232,740
|
|
Year ended December 31, 2018
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||
|
Common Stock
|
|
Additional Paid-in-Capital
|
|
Retained
Earnings |
|
Accumulated
Other Comprehensive Loss |
|
Equity
attributable to Stockholders of the Company |
|
Non-Controlling
Interest |
|
Total Stockholders’ Equity
|
|||||||||||||||||
|
Shares
|
|
Amount
|
|
|
|
|
|
|
|||||||||||||||||||||
Balance as of December 31, 2016
|
25,784,950
|
|
|
$
|
25,785
|
|
|
$
|
8,774,478
|
|
|
$
|
857,388
|
|
|
$
|
(817,761
|
)
|
|
$
|
8,839,890
|
|
|
$
|
(152,757
|
)
|
|
$
|
8,687,133
|
|
Issuance of common stock
|
1,827,647
|
|
|
1,828
|
|
|
2,611,701
|
|
|
—
|
|
|
—
|
|
|
2,613,529
|
|
|
—
|
|
|
2,613,529
|
|
|||||||
Common stock issuance costs
|
—
|
|
|
—
|
|
|
(38,016
|
)
|
|
—
|
|
|
—
|
|
|
(38,016
|
)
|
|
—
|
|
|
(38,016
|
)
|
|||||||
Net income
|
—
|
|
|
—
|
|
|
—
|
|
|
1,047,331
|
|
|
—
|
|
|
1,047,331
|
|
|
(53,001
|
)
|
|
994,330
|
|
|||||||
Foreign currency translation
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
221,078
|
|
|
221,078
|
|
|
17,332
|
|
|
238,410
|
|
|||||||
Balance as of December 31, 2017
|
27,612,597
|
|
|
27,613
|
|
|
11,348,163
|
|
|
1,904,719
|
|
|
(596,683
|
)
|
|
12,683,812
|
|
|
(188,426
|
)
|
|
12,495,386
|
|
|||||||
Net income
|
—
|
|
|
—
|
|
|
—
|
|
|
8,712,534
|
|
|
—
|
|
|
8,712,534
|
|
|
8,698
|
|
|
8,721,232
|
|
|||||||
Foreign currency translation
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(593,372
|
)
|
|
(593,372
|
)
|
|
(10,301
|
)
|
|
(603,673
|
)
|
|||||||
Balance as of December 31, 2018
|
27,612,597
|
|
|
$
|
27,613
|
|
|
$
|
11,348,163
|
|
|
$
|
10,617,253
|
|
|
$
|
(1,190,055
|
)
|
|
$
|
20,802,974
|
|
|
$
|
(190,029
|
)
|
|
$
|
20,612,945
|
|
|
Year Ended December 31,
|
||||||
|
2018
|
|
2017
|
||||
Cash flows from operating activities
|
|
|
|
||||
Net income
|
$
|
8,721,232
|
|
|
$
|
994,330
|
|
Adjustments to reconcile net income to net cash provided by operating activities:
|
|
|
|
||||
Depreciation of property and equipment
|
735,983
|
|
|
594,712
|
|
||
Amortization of intangible assets
|
642,801
|
|
|
537,334
|
|
||
Loss (gain) on sale of property and equipment
|
25,733
|
|
|
(13,251
|
)
|
||
Bad debt expense
|
190,230
|
|
|
308,891
|
|
||
Deferred income tax
|
(86,218
|
)
|
|
(221,873
|
)
|
||
Accretion on notes payable
|
43,416
|
|
|
78,957
|
|
||
|
|
|
|
|
|
||
Changes in current assets and liabilities:
|
|
|
|
||||
Accounts receivable
|
(261,256
|
)
|
|
(788,524
|
)
|
||
Inventory, net
|
11,148
|
|
|
(2,546,671
|
)
|
||
Prepaid expenses and other current assets
|
132,682
|
|
|
(244,716
|
)
|
||
Accounts payable and accrued liabilities
|
(3,635,246
|
)
|
|
3,472,092
|
|
||
Income tax payable
|
276,280
|
|
|
846,175
|
|
||
Net cash provided by operating activities
|
6,796,785
|
|
|
3,017,456
|
|
||
Cash flows used in investing activities
|
|
|
|
||||
Purchase of of property and equipment
|
(2,030,314
|
)
|
|
(1,499,762
|
)
|
||
Proceeds from sale of property, plant and equipment
|
155,277
|
|
|
39,500
|
|
||
Acquisition of subsidiaries, net of cash acquired and notes payable (Note 6)
|
(831,934
|
)
|
|
(659,132
|
)
|
||
Development of intangible assets
|
(386,985
|
)
|
|
(207,787
|
)
|
||
Net cash used in investing activities
|
(3,093,956
|
)
|
|
(2,327,181
|
)
|
||
Cash flows from financing activities
|
|
|
|
||||
Net repayments on revolving credit agreement
|
(2,000,000
|
)
|
|
(500,000
|
)
|
||
Repayment of bank loan payable
|
(440,126
|
)
|
|
(565,240
|
)
|
||
Repayments of notes payable - acquisitions
|
(658,055
|
)
|
|
(468,484
|
)
|
||
Proceeds from issuance of common stock
|
—
|
|
|
2,613,529
|
|
||
Common share issuance costs
|
—
|
|
|
(38,016
|
)
|
||
Net cash (used in) provided by financing activities
|
(3,098,181
|
)
|
|
1,041,789
|
|
||
Net change in cash and cash equivalents
|
604,648
|
|
|
1,732,064
|
|
||
Foreign exchange impact on cash and cash equivalents
|
(132,326
|
)
|
|
(94,249
|
)
|
||
Increase in cash and cash equivalents during the period
|
472,322
|
|
|
1,637,815
|
|
||
Cash and cash equivalents at beginning of year
|
3,498,904
|
|
|
1,861,089
|
|
||
Cash and cash equivalents at end of year
|
$
|
3,971,226
|
|
|
$
|
3,498,904
|
|
|
|
|
|
||||
Supplemental schedule of non-cash activities
|
|
|
|
||||
Notes payable issued for acquisitions
|
$
|
998,668
|
|
|
$
|
382,141
|
|
Contingent consideration
|
$
|
—
|
|
|
$
|
157,724
|
|
Forgiveness of debt for acquired entities
|
$
|
88,216
|
|
|
$
|
—
|
|
|
|
|
|
||||
Supplemental cash flow information
|
|
|
|
||||
Cash paid for income taxes
|
$
|
2,514,727
|
|
|
$
|
452,173
|
|
Cash paid for interest
|
$
|
86,417
|
|
|
$
|
245,986
|
|
Subsidiaries
|
|
Functional Currency
|
|
% Owned by XPEL, Inc.
|
|
XPEL, Ltd.
|
|
UK Pound Sterling
|
|
85
|
%
|
Armourfend CAD, LLC
|
|
US Dollar
|
|
100
|
%
|
XPEL Canada Corp.
|
|
Canadian Dollar
|
|
100
|
%
|
XPEL B.V.
|
|
Euro
|
|
100
|
%
|
XPEL de Mexico S. de R.L. de C.V.
|
|
Peso
|
|
100
|
%
|
XPEL Acquisition Corp.
|
|
Canadian Dollar
|
|
100
|
%
|
Protex Canada, Inc.
|
|
Canadian Dollar
|
|
100
|
%
|
Apogee Corp.
|
|
New Taiwan Dollar
|
|
100
|
%
|
|
2018
|
|
2017
|
||||
United States
|
$
|
2,288,792
|
|
|
$
|
1,429,829
|
|
Canada
|
421,588
|
|
|
153,206
|
|
||
Europe
|
475,345
|
|
|
554,236
|
|
||
Other
|
198,481
|
|
|
15,962
|
|
||
Consolidated
|
$
|
3,384,206
|
|
|
$
|
2,153,233
|
|
|
2018
|
|
2017
|
||||
United States
|
$
|
617,334
|
|
|
$
|
490,788
|
|
Canada
|
1,701,826
|
|
|
1,365,854
|
|
||
Other
|
3,628
|
|
|
—
|
|
||
Consolidated
|
$
|
2,322,788
|
|
|
$
|
1,856,642
|
|
|
2018
|
|
2017
|
||||
United States
|
$
|
1,891,479
|
|
|
$
|
1,775,273
|
|
Canada
|
1,652,347
|
|
|
1,787,499
|
|
||
Europe
|
1,773
|
|
|
—
|
|
||
Other
|
258,427
|
|
|
—
|
|
||
Consolidated
|
$
|
3,804,026
|
|
|
$
|
3,562,772
|
|
Trademarks
|
- 10 years
|
DAP software platform
|
- 5 years
|
Trade name
|
- 10-15 years
|
Contractual and customer relationships
|
- 9-10 years
|
Non-compete
|
- 3-5 years
|
Other
|
- 10 years
|
Level 1:
|
Valuation is based on observable inputs such as quoted market prices (unadjusted) for identical assets or liabilities in active markets.
|
Level 2:
|
Valuation is based on inputs such as quoted market prices for similar assets or liabilities in active markets or other inputs that are observable for the asset or liability, either directly or indirectly, for substantially the full term of the financial instrument.
|
Level 3:
|
Valuation is based upon other unobservable inputs that are significant to the fair value measurement.
|
•
|
Identification of the contract, or contracts, with a customer
|
•
|
Identification of the performance obligations in the contract
|
•
|
Determination of the transaction price
|
•
|
Allocation of the transaction price to the performance obligations in the contract
|
•
|
Recognition of revenue when, or as, the Company satisfies a performance obligation
|
|
Year Ended December 31,
|
||||||
|
2018
|
|
2017
|
||||
Product Revenue
|
|
|
|
||||
Paint protection film
|
$
|
85,495,382
|
|
|
$
|
49,489,430
|
|
Window film
|
7,309,773
|
|
|
5,103,080
|
|
||
Other
|
2,721,195
|
|
|
1,755,639
|
|
||
Total
|
95,526,350
|
|
|
56,348,149
|
|
||
|
|
|
|
||||
Service Revenue
|
|
|
|
||||
Software
|
$
|
2,566,960
|
|
|
2,820,709
|
|
|
Cutbank credits
|
6,197,250
|
|
|
4,145,745
|
|
||
Installation labor
|
5,211,633
|
|
|
3,709,517
|
|
||
Training
|
418,421
|
|
|
272,924
|
|
||
Total
|
14,394,264
|
|
|
10,948,895
|
|
||
|
|
|
|
||||
Total
|
$
|
109,920,614
|
|
|
$
|
67,297,044
|
|
|
December 31, 2018
|
|
December 31, 2017
|
||||
Furniture and fixtures
|
$
|
956,467
|
|
|
$
|
691,799
|
|
Computer equipment
|
939,979
|
|
|
729,288
|
|
||
Vehicles
|
730,765
|
|
|
647,200
|
|
||
Equipment
|
1,079,503
|
|
|
895,223
|
|
||
Leasehold improvements
|
941,627
|
|
|
696,023
|
|
||
Plotters
|
544,080
|
|
|
392,111
|
|
||
Construction in Progress
|
646,576
|
|
|
—
|
|
||
Total property and equipment
|
5,838,997
|
|
|
4,051,644
|
|
||
Less accumulated depreciation
|
2,454,791
|
|
|
1,898,411
|
|
||
Property and equipment, net
|
$
|
3,384,206
|
|
|
$
|
2,153,233
|
|
|
December 31,
|
||||||
|
2018
|
|
2017
|
||||
Trademarks
|
$
|
289,734
|
|
|
$
|
286,812
|
|
DAP software platform
|
1,635,731
|
|
|
1,244,397
|
|
||
Trade name
|
457,766
|
|
|
465,670
|
|
||
Contractual and customer relationships
|
2,947,264
|
|
|
2,496,963
|
|
||
Non-compete
|
261,914
|
|
|
274,074
|
|
||
Other
|
150,267
|
|
|
148,135
|
|
||
Total cost
|
5,742,676
|
|
|
4,916,051
|
|
||
Less: Accumulated amortization
|
1,938,650
|
|
|
1,353,279
|
|
||
Intangible assets, net
|
$
|
3,804,026
|
|
|
$
|
3,562,772
|
|
2019
|
$
|
674,772
|
|
2020
|
577,263
|
|
|
2021
|
487,205
|
|
|
2022
|
426,043
|
|
|
2023
|
392,190
|
|
|
Thereafter
|
$
|
1,246,553
|
|
Balance December 31, 2016
|
$
|
1,365,158
|
|
Additions
|
406,013
|
|
|
Foreign Exchange
|
85,471
|
|
|
Balance December 31, 2017
|
1,856,642
|
|
|
Additions
|
576,173
|
|
|
Foreign Exchange
|
(110,027
|
)
|
|
Balance December 31, 2018
|
$
|
2,322,788
|
|
Acquisition Date
|
|
Name/Location/Description
|
|
Purchase Price
|
Acquisition Type
|
|
Acquisition Purpose
|
April 1, 2017
|
|
Stratashield Customs, LLC, Dallas, TX, USA - Paint protection and window film installation shop
|
|
$175,000
|
Asset Purchase
|
|
Local market expansion
|
November 1, 2017
|
|
Transguard, Inc., Boise, ID, USA -Paint protection and window film installation shop
|
|
$207,724
|
Asset Purchase
|
|
Local market expansion
|
November 30, 2017
|
|
Protex Canada, Inc., Montreal, Quebec, Canada - Paint protection and window film franchisor
|
|
$816,273
|
Share Purchase
|
|
Add distribution channel
|
April 1, 2018
|
|
9352-4692, Quebec, Inc., Quebec City, Quebec, Canada - Paint protection and window film installation shop
|
|
$87,248
|
Share Purchase
|
|
Local market expansion
|
June 1, 2018
|
|
eShields, LLC, La Verne, CA, USA - Antimicrobial film distributor
|
|
$496,982
|
Asset Purchase
|
|
Product line expansion
|
August 1, 2018
|
|
9341-9182 Quebec, Inc., Pointe Claire, Quebec, Canada - Paint protection and window film installation shop
|
|
$363,239
|
Share Purchase
|
|
Local market expansion
|
August 1, 2018
|
|
9846905 Canada, Inc., Calgary, Alberta, Canada - Paint protection and window film installation shop
|
|
$332,798
|
Share Purchase
|
|
Local market expansion
|
November 1, 2018
|
|
Apogee, Corp., Yilan City, Yilan County, Taiwan - Paint protection and window film distributor
|
|
$638,552
|
Share Purchase
|
|
Local market expansion
|
|
December 31,
|
||||||||||||||
|
2018
|
|
2017
|
||||||||||||
|
2018 Acquisitions
|
|
Protex Canada, Inc.
|
|
Other 2017 Acquisitions
|
|
Total
|
||||||||
Purchase Price
|
|
|
|
|
|
|
|
||||||||
Cash
|
$
|
831,934
|
|
|
$
|
434,132
|
|
|
$
|
225,000
|
|
|
$
|
659,132
|
|
Promissory note
|
998,668
|
|
|
382,141
|
|
|
—
|
|
|
382,141
|
|
||||
Contingent payable agreements
|
—
|
|
|
—
|
|
|
157,724
|
|
|
157,724
|
|
||||
Forgiveness of debt
|
88,216
|
|
|
—
|
|
|
—
|
|
|
—
|
|
||||
|
$
|
1,918,818
|
|
|
$
|
816,273
|
|
|
$
|
382,724
|
|
|
$
|
1,198,997
|
|
|
|
|
|
|
|
|
|
||||||||
Allocation
|
|
|
|
|
|
|
|
||||||||
Cash
|
$
|
41,407
|
|
|
$
|
32,378
|
|
|
$
|
409
|
|
|
$
|
32,787
|
|
Accounts receivable
|
155,434
|
|
|
44,454
|
|
|
767
|
|
|
45,221
|
|
||||
Inventory
|
494,663
|
|
|
17,843
|
|
|
5,963
|
|
|
23,806
|
|
||||
Prepaid expenses and other assets
|
78,631
|
|
|
10,142
|
|
|
—
|
|
|
10,142
|
|
||||
Property and equipment
|
167,622
|
|
|
30,339
|
|
|
7,500
|
|
|
37,839
|
|
||||
Non-compete
|
—
|
|
|
—
|
|
|
15,000
|
|
|
15,000
|
|
||||
Customer relationships
|
609,751
|
|
|
444,985
|
|
|
173,000
|
|
|
617,985
|
|
||||
Trade name
|
—
|
|
|
187,607
|
|
|
—
|
|
|
187,607
|
|
||||
Goodwill
|
576,173
|
|
|
215,516
|
|
|
190,497
|
|
|
406,013
|
|
||||
Accounts payable
|
(126,715
|
)
|
|
(69,866
|
)
|
|
(4,065
|
)
|
|
(73,931
|
)
|
||||
Other accrued liabilities
|
(78,148
|
)
|
|
(97,125
|
)
|
|
(6,347
|
)
|
|
(103,472
|
)
|
||||
|
$
|
1,918,818
|
|
|
$
|
816,273
|
|
|
$
|
382,724
|
|
|
$
|
1,198,997
|
|
|
Weighted Average Interest Rate
|
|
Matures
|
|
December 31,
|
||||||
|
|
|
2018
|
|
2017
|
||||||
Bank Term Note Payable
|
4.25%
|
|
—
|
|
$
|
—
|
|
|
$
|
440,126
|
|
Acquisition Notes Payable
|
4.49%
|
|
2022
|
|
1,821,387
|
|
|
1,511,740
|
|
||
Total Debt
|
|
|
|
|
1,821,387
|
|
|
1,951,866
|
|
||
Current Portion
|
|
|
|
|
853,150
|
|
|
1,024,434
|
|
||
Total Long-term debt
|
|
|
|
|
$
|
968,237
|
|
|
$
|
927,432
|
|
2019
|
$
|
853,150
|
|
2020
|
612,523
|
|
|
2021
|
355,551
|
|
|
2022
|
115,446
|
|
|
2023
|
—
|
|
|
Thereafter
|
—
|
|
|
|
$
|
1,936,670
|
|
|
December 31, 2018
|
|
December 31,
2017
|
||||
Film and film based products
|
$
|
9,399,067
|
|
|
$
|
9,781,486
|
|
Other products
|
1,264,862
|
|
|
750,657
|
|
||
Packaging and supplies
|
320,738
|
|
|
232,539
|
|
||
Inventory Reserve
|
(185,056
|
)
|
|
(243,888
|
)
|
||
|
$
|
10,799,611
|
|
|
$
|
10,520,794
|
|
|
2018
|
|
2017
|
||||
Trade payables
|
$
|
3,905,187
|
|
|
$
|
6,475,224
|
|
Payroll liabilities
|
1,194,237
|
|
|
304,741
|
|
||
Customer deposits
|
136,213
|
|
|
1,701,356
|
|
||
Other liabilities
|
1,056,456
|
|
|
1,237,512
|
|
||
|
$
|
6,292,093
|
|
|
$
|
9,718,833
|
|
|
Number of shares
|
|
Amount
|
|||
Balance, December 31, 2016
|
25,784,950
|
|
|
$
|
25,785
|
|
Issuance of common shares
|
1,827,647
|
|
|
1,828
|
|
|
Balance, December 31, 2017
|
27,612,597
|
|
|
$
|
27,613
|
|
Issuance of common shares
|
—
|
|
|
—
|
|
|
Balance, December 31, 2018
|
27,612,597
|
|
|
$
|
27,613
|
|
Notes payable
|
December 31, 2018
|
|
December 31, 2017
|
||||
Current maturities of notes payable
|
$
|
853,150
|
|
|
1,024,434
|
|
|
Long-term portion of notes payable
|
968,237
|
|
|
927,432
|
|
||
Fair Value of notes payable
|
$
|
1,821,387
|
|
|
$
|
1,951,866
|
|
|
2018
|
|
2017
|
||||
Domestic
|
$
|
10,008,013
|
|
|
$
|
2,719,855
|
|
International
|
1,473,292
|
|
|
$
|
(571,305
|
)
|
|
Income before income taxes
|
$
|
11,481,305
|
|
|
$
|
2,148,550
|
|
|
2018
|
|
2017
|
||||
Income before income taxes
|
$
|
11,481,305
|
|
|
$
|
2,148,550
|
|
Statutory rate
|
21
|
%
|
|
34
|
%
|
||
|
2,411,074
|
|
|
730,507
|
|
||
|
|
|
|
||||
State taxes net of federal benefit
|
183,468
|
|
|
49,533
|
|
||
Nondeductible/nontaxable items
|
—
|
|
|
71,585
|
|
||
Foreign tax rate differential
|
81,474
|
|
|
151,085
|
|
||
Change in deferred tax rate
|
|
|
(100,654
|
)
|
|||
Return to provision estimated revision
|
—
|
|
|
87,596
|
|
||
Other - net
|
84,057
|
|
|
164,568
|
|
||
Income tax expense
|
$
|
2,760,073
|
|
|
$
|
1,154,220
|
|
|
Years ended December 31
|
||||||
|
2018
|
|
2017
|
||||
Current Income Tax Expense/(Benefit)
|
|
|
|
||||
Federal
|
$
|
2,182,415
|
|
|
$
|
1,039,363
|
|
Foreign
|
431,638
|
|
|
261,680
|
|
||
State
|
232,238
|
|
|
75,050
|
|
||
Total Current Income Tax Expense/(Benefit)
|
2,846,291
|
|
|
1,376,093
|
|
||
Deferred Income Tax Expense/(Benefit)
|
|
|
|
||||
Federal
|
(65,801
|
)
|
|
7,503
|
|
||
Foreign
|
(20,417
|
)
|
|
(229,376
|
)
|
||
Total Deferred Income Tax Expense/(Benefit)
|
(86,218
|
)
|
|
(221,873
|
)
|
||
Total
|
$
|
2,760,073
|
|
|
$
|
1,154,220
|
|
|
Years ended December 31
|
||||||
|
2018
|
|
2017
|
||||
DEFERRED TAX ASSETS:
|
|
|
|
||||
Allowance for Doubtful Accounts
|
$
|
16,823
|
|
|
$
|
27,868
|
|
263(A) Adjustment
|
17,421
|
|
|
15,779
|
|
||
Accrued Expenses
|
9,485
|
|
|
—
|
|
||
Inventory Reserve
|
34,978
|
|
|
—
|
|
||
Accretion of Acquisition Notes
|
8,156
|
|
|
—
|
|
||
State Tax Credit
|
48,770
|
|
|
—
|
|
||
NOL Carryforward and Other
|
249,772
|
|
|
352,743
|
|
||
Deferred tax assets
|
385,405
|
|
|
396,390
|
|
||
Less valuation allowance
|
—
|
|
|
—
|
|
||
Total deferred tax assets
|
$
|
385,405
|
|
|
$
|
396,390
|
|
|
|
|
|
||||
DEFERRED TAX LIABILITIES:
|
|
|
|
||||
Fixed and Intangible Assets
|
$
|
824,822
|
|
|
$
|
811,642
|
|
Unrealized Gain
|
14,146
|
|
|
30,197
|
|
||
Accretion
|
8,639
|
|
|
—
|
|
||
Allowance for Doubtful Accounts
|
16,662
|
|
|
28,991
|
|
||
Total deferred tax liabilities
|
864,269
|
|
|
870,830
|
|
||
Total net deferred tax assets/(liabilities)
|
$
|
(478,864
|
)
|
|
$
|
(474,440
|
)
|
(a)
|
Operating Lease Commitment
|
2019
|
$
|
869,492
|
|
2020
|
736,169
|
|
|
2021
|
667,551
|
|
|
2022
|
601,593
|
|
|
2023
|
528,427
|
|
|
Thereafter
|
1,372,388
|
|
|
|
$
|
4,775,620
|
|
(b)
|
Contingencies
|
(c)
|
Supply Agreement
|
Number
|
|
Description
|
3.1
|
|
|
|
|
|
3.2
|
|
|
|
|
|
3.3
|
|
|
|
|
|
3.4
|
|
|
|
|
|
4.1
|
|
|
|
|
|
10.1
|
|
|
|
|
|
10.2
|
|
|
|
|
|
10.3
|
|
|
|
|
|
10.4
|
|
|
|
|
|
10.5
|
|
|
|
|
|
10.6
|
|
|
|
|
|
14.1
|
|
|
|
|
|
21.1
|
|
*
|
Filed herewith
|
**
|
Previously filed
|
|
|
XPEL, Inc. (Registrant)
|
|
|
|
|
By:
|
/s/ Barry R. Wood
|
|
|
Barry R. Wood
|
|
|
Senior Vice President and Chief Financial Officer
|
May 30, 2019
|
|
(Authorized Officer and Principal Financial and Accounting Officer)
|
Principal
$8,500,000.00
|
Loan Date
08-05-2017
|
Maturity
08-05-2018
|
Loan No
310036
|
Call / Coll
4A / 013
|
Account
|
Officer
RSG
|
Initials
|
References in the boxes above are for Lender's use only and do not limit the applicability of this document to any particular loan or item.
Any item above containing "***" has been omitted due to text length limitations.
|
Borrower:
|
XPEL Technologies Corp.
|
Lender:
|
THE BANK OF SAN ANTONIO HEADQUARTERS
|
|
618 West Sunset Road
|
|
1900 NW LOOP 410
|
|
SAN ANTONIO, TX 78216
|
|
SAN ANTONIO, TX 78213
|
|
|
|
|
|
||
Loan No: 310036
|
BUSINESS LOAN AGREEMENT (Continued)
|
Page
2
|
|
|
|
|
||
Loan No: 310036
|
BUSINESS LOAN AGREEMENT (Continued)
|
Page
3
|
|
|
|
|
||
Loan No: 310036
|
BUSINESS LOAN AGREEMENT (Continued)
|
Page
4
|
|
|
|
|
||
Loan No: 310036
|
BUSINESS LOAN AGREEMENT (Continued)
|
Page
5
|
|
|
|
|
||
Loan No: 310036
|
BUSINESS LOAN AGREEMENT (Continued)
|
Page
6
|
|
|
|
|
||
Loan No: 310036
|
BUSINESS LOAN AGREEMENT (Continued)
|
Page
7
|
|
|
|
|
||
Loan No: 310036
|
BUSINESS LOAN AGREEMENT (Continued)
|
Page
8
|
|
|
|
|
||
Loan No: 310036
|
BUSINESS LOAN AGREEMENT (Continued)
|
Page
9
|
|
|
|
XPEL TECHNOLOGIES CORP.
|
|
|
|
By:
|
/s/ Ryan L. Pape
|
|
Ryan L. Pape, President, Director, CEO & Secretary of XPEL Technologies Corp.
|
|
|
LENDER:
|
|
|
|
THE BANK OF SAN ANTONIO
|
|
|
|
By:
|
/s/ Robert S. Glenn
|
|
ROBERT S GLENN, EXECUTIVE VICE PRESIDENT
|
P
ri
ncipal
$8,500,000.00
|
L
oan Date
05-05-2018
|
Matur
i
ty
05-05-2020
|
L
oan No
310036
|
Call / Coll
4A / 13
|
Account
|
Officers
RSG
|
Initials
|
References in the boxes above are for Lender's use only and do not limit the applicability of this document to any particular loan or item.
Any item above containing "***" has been omitted due to text length limitations. |
Borrower:
|
XPEL TECHNOLOGIES CORP.
618 WEST SUNSET ROAD
SAN ANTONIO, TX, 78216
|
Lender:
|
THE BANK OF SAN ANTONIO HEADQUARTERS
1900 NW LOOP 410 SAN ANTONIO, TX 78213 |
Principal Amount:
|
$8,500,000.00
|
|
Date of Agreement:
|
May 5, 2018
|
|
||
|
|
|
Loan No: 310036
|
CHANGE IN TERMS AGREEMENT
(Continued)
|
Page
2
|
|
||
|
|
|
Loan No: 310036
|
CHANGE IN TERMS AGREEMENT
(Continued)
|
Page
3
|
|
||
|
|
|
Loan No: 310036
|
CHANGE IN TERMS AGREEMENT
(Continued)
|
Page
4
|
|
||
|
|
|
Loan No: 310036
|
CHANGE IN TERMS AGREEMENT
(Continued)
|
Page
5
|
BORROWER:
|
|
|
|
|
|
XPEL TECHNOLOGIES CORP.
|
|
|
|
By:
|
/s/ Ryan L. Pape
|
|
RYAN L. PAPE, PRESIDENT, DIRECTOR, CEO &
SECRETARY of XPEL TECHNOLOGIES CORP.
|
|
|
LENDER:
|
|
|
|
|
|
THE BANK OF SAN ANTONIO
|
|
|
|
|
|
X
|
/s/ Robert S. Glenn
|
|
ROBERT S GLENN, EXECUTIVE VICE PRESIDENT
|
|
|
HSBC
|
1.
|
Operating Loan Facility
|
1.1
|
Amount
|
1.2
|
Purpose
|
1.3
|
Availability
|
(a)
|
CAD account overdraft up to an aggregate principal amount not exceeding CAD 4,500,000 ("
CAD Overdraft Loans
");
|
1.4
|
Repayment
|
1.5
|
Interest
|
(a)
|
for CAD Overdraft Loan, the Bank's Prime Rate plus 0.25% per annum calculated monthly in arrears on the daily balance, payable on the last Business Day of each month;
|
1.6
|
Fees
|
(a)
|
A setup fee of CAD 3,375 payable on acceptance of this Facility Letter: and
|
(b)
|
Annual review fee of CAD 2,250.
|
2.
|
Loan Documents
|
2.1
|
Loan Documents
|
(a)
|
Agreement for CAD Line of Credit by way of Current Account Overdraft, from the Borrower;
|
(b)
|
Guarantee of indebtedness of the Borrower to the Bank, executed by XPEL, Inc. limited to CAD 4,500,000;
|
(c)
|
all supporting officer's certificates, certificates of status (or good standing) and other certificates in connection with each Credit Party as the Bank may reasonably require which shall confirm, among other things, the constitutional documents for each Credit Party, incumbent officers with specimen signatures of authorized signatories, and the applicable authorizing resolutions for the Loan Documents, together with legal opinion of the solicitors acting for each Credit Party confirming power and capacity of each Credit Party, existence, due authorization, execution, delivery and enforceability of the Loan Documents to which each is a party and the priority of the security interests granted by each to the Bank;
|
(d)
|
Such other Loan Documents as the Bank may reasonably request in order to register or otherwise perfect the security interests granted to the Bank.
|
2.2
|
Registration and Priority: Counsel Fees
|
3.
|
Conditions Precedent
|
(a)
|
The Loan Documents, duly authorized, executed and delivered, and, as relevant, duly registered;
|
(b)
|
Copies of all Material Agreements (if any);
|
4.
|
Reporting Requirements
|
(a)
|
Annually, within 90 days of the Borrower's fiscal year end:
|
(i)
|
In-house financial statements;
|
(ii)
|
In-house projections for the coming financial year end;
|
(b)
|
Annually, within 90 days of each Guarantor's year end, on a consolidated basis audited financial statements for such Guarantor; and
|
(c)
|
Such additional financial statements and information as and when requested by the Bank.
|
5.
|
Counterparts and Electronic Communication
|
6.
|
Notices
|
7.
|
Lapse and Cancellation
|
8.
|
Schedules
|
9.
|
Language Choice
|
10.
|
Acceptance
|
/s/ Lofti Bengalouze
|
/s/ Antoine Racine
|
Lofti Bengalouze
|
Antoine Racine
|
Assistant Vice-President
|
Corporate Banking Manager
|
International Subsidiaries
|
International Subsidiaries
|
BORROWER
|
|
|
|
|
XPEL Canada Corp.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Per:
|
/s/ Barry R. Wood
|
|
Per:
|
/s/ Christen L. Coffee
|
|
Authorized Signatory
|
|
|
Authorized Signatory
|
|
Title: CEO
|
|
|
Title: Controller
|
|
Name: Barry R. Wood
|
|
|
Name: Christen L. Coffee
|
|
|
|
|
|
GUARANTOR
|
|
|
|
|
XPEL, Inc.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Per:
|
/s/ Barry R. Wood
|
|
Per:
|
/s/ Christen L. Coffee
|
|
Authorized Signatory
|
|
|
Authorized Signatory
|
|
Title: CEO
|
|
|
Title: Controller
|
|
Name: Barry R. Wood
|
|
|
Name: Christen L. Coffee
|
I.
|
Definitions
|
II.
|
Representations and Warranties
|
(a)
|
if a corporation, it has been duly incorporated and organized (or if a partnership or other legal entity, has been duly formed, or settled as relevant) and organized and is properly constituted, is in good standing and subsisting and entitled to conduct its business in all jurisdictions in which it carries on business or has assets;
|
(b)
|
the execution of this Facility Letter and the Loan Documents and the incurring of liability and indebtedness to the Bank does not and will not contravene:
|
(i)
|
any legal Requirement applicable to such Credit Party; or
|
(ii)
|
any provision contained in any other loan or credit agreement or borrowing instrument or contract to which it is a party;
|
(c)
|
this Facility Letter and the Loan Documents to which it is a party have been duly authorized, executed and delivered by it, and constitute its valid and binding obligations and are enforceable in accordance with their respective terms;
|
(d)
|
all necessary Legal Requirements have been met and all other authorizations, approvals, consents and orders have been obtained with respect to the execution and delivery of this Facility Letter and the Loan Documents; and
|
(e)
|
all financial and other information provided to the Bank in connection with the Credit Facilities is true and accurate, and it acknowledges that the offer of credit by the Bank contained in this Facility Letter is made in reliance on the truth and accuracy of this information and the above representations and warranties.
|
(f)
|
neither the Borrower nor any of its subsidiaries, directors, officers, employees, agents, or affiliates is an individual or entity (nor does the Borrower nor any such other entity or person operate, possess, own, charter, or use a vessel) that is, or is owned or controlled by any one or more individuals or entities ("
Persons
") that are: (i) the subject of any sanctions issued, administered or enforced by, or named on any list of specially designated or blocked Persons maintained by, the Office of Foreign Assets Control ("
OFAC
") of the US Department of the Treasury, the US Department of State, the United Nations Security Council, the European Union, Her Majesty's Treasury, the Hong Kong Monetary Authority, or the Department of Global Affairs (Canada), Foreign Affairs, Trade and Development Canada, Canada Border Services Agency, or Justice Canada, including any enabling legislation or executive order related thereto, and any similar sanctions laws as may be enacted from time to time in the future by the United States, Canada, the European Union (and any of its member states), the United Kingdom or the United Nations Security Council, or any other legislative body of the United Nations or other relevant Governmental Authority (collectively, "
Sanctions
"), or (ii) located, organised or resident in a country or territory that is, or whose government is, the subject of Sanctions;
|
(g)
|
with respect to each LG or DC issued by the Bank pursuant to any of the Credit Facilities all required import or export licenses applicable to the transactions for which such LG or DC is issued have been obtained and the Borrower is in compliance in all material respects with foreign and domestic laws and regulations pertaining to each jurisdiction in which it operates and to each LG and/or DC and the subject matter of such LG and/or DC including, if applicable, the shipment and financing of the goods described in such LG and/or DC; and
|
(h)
|
no shares in a Credit Party have been issued as, or are held as, or convertible to, bearer shares.
|
Ill.
|
Interest, Fees
|
(a)
|
Interest on the daily balance of the principal amount advanced under the Credit Facilities and remaining unpaid from time to time shall accrue and shall be payable by the Borrower as set out in this Facility Letter both before and after demand, default, maturity, or judgment and until indefeasible payment in full, except as otherwise expressly provided for.
|
(b)
|
If the Borrower repays any portion of the Credit Facilities accruing interest at the Bank's CAD Fixed Rate or the Bank's USD Fixed Rate or based on LIBOR or CAD Cost of Funds Rate on a date other than the expiration of the selected interest period or LIBOR Period, as the case may be, whether as a result of a demand for repayment by the Bank or otherwise, it shall also concurrently pay to the Bank the greater of:
|
(i)
|
three months' interest on the portion prepaid at the CAD Fixed Rate or CAD Cost of Funds Rate or the Bank's USD Fixed Rate or based on LIBOR plus the applicable margin (pursuant to Section 1.5(c) of the Facility Letter), as the case may be; and
|
(ii)
|
the applicable Compensating Amount.
|
(c)
|
The fees paid to and received by the Bank shall be its entitlement as consideration for the time, effort and expense incurred by the Bank in the review of financial statements and its review and administration of documents, and the Borrower acknowledges and agrees that the determination of these costs is not feasible and that the fees set out in this Facility Letter represent a reasonable estimate of such costs.
|
(d)
|
In the event that interest is not received by the Bank on any date for payment provided for in this Facility Letter or in any other relevant document, interest on such overdue interest shall be compounded on the basis of interest calculated and payable on overdue interest in the same manner and at the same rate per annum as is applicable to such overdue interest until indefeasible payment in full. Any other amounts which become payable to the Bank under this Facility Letter or the Loan Documents and which are not paid when due shall accrue interest and be payable from the due date at the Bank's Prime Rate plus 3% per annum, calculated and payable monthly on the last day of each month, both before and after demand, default, maturity or judgment and until indefeasible payment in full (other than for overdrafts exceeding the permitted limit which shall accrue interest at the rate of 21% per annum both before and after demand, default and judgment until indefeasible payment in full).
|
(e)
|
All payments by the Borrower to the Bank shall be made at the address of the Bank Branch or at such other place as the Bank may specify in writing from time to time. The Borrower shall make payment to the Bank in immediately available funds in the same currency as the currency in which the original Loan, BA Advance or other credit was advanced or made available by the Bank. Any payment delivered or made to the Bank by 1:00
|
(f)
|
Notwithstanding anything to the contrary contained in this Facility Letter, the Borrower acknowledges that: (i) the applicable rate of interest payable by the Borrower in connection with this Facility Letter shall not be less than zero, even if a reference rate used for the calculation of such interest, or the total of the reference rate and applicable interest spread, is less than zero; and (ii) the Bank may, in its discretion, and is hereby irrevocably authorized by the Borrower to, make an advance under the Credit Facilities (or debit or set-off any bank account of the Borrower with the Bank), to pay any unpaid interest, fees or other amounts which have become due under the terms of this Facility Letter.
|
(g)
|
The Borrower acknowledges that the actual recording of the amount of any advance or repayment thereof under the Credit Facilities, and interest, fees and other amounts due in connection with the Credit Facilities, in an account of the Borrower maintained by the Bank shall constitute
prima facie
evidence of the Borrower's indebtedness and liability from time to time under the Credit Facilities; provided that the obligation of the Borrower to pay or repay any obligations in accordance with the terms and conditions of the Credit Facilities shall not be affected by the failure of the Bank to make such recording. The Borrower also acknowledges being indebted to the Bank for principal amounts shown as outstanding from time to time in the Bank's account records, and all accrued and unpaid interest in respect of such amounts, in accordance with the terms and conditions of this Facility Letter.
|
(h)
|
The obligation of the Borrower to make all payments under this Facility Letter and the Loan Documents shall be absolute and unconditional and shall be made without any deduction or withholding of any nature and shall not be limited or affected by any circumstance, including, without limitation:
|
(i)
|
any set-off, compensation, counterclaim, recoupment, defence or other right which the Borrower may have against the Bank or anyone else for any reason whatsoever; or
|
(ii)
|
any insolvency, bankruptcy, reorganization or similar proceedings by or against the Borrower.
|
(i)
|
In addition to and not in limitation of any rights now or hereafter available to the Bank under applicable law or arising under the Loan Documents, the Bank is hereby irrevocably authorized, at any time and from time to time, to set-off and appropriate and to apply any and all deposits (general and special) and any other indebtedness at any time held by or owing by the Bank to or for the credit of the Borrower against and on account of the obligations of the Borrower to the Bank under this Facility Letter, irrespective of currency. The Bank agrees to provide written notice to the Borrower of the exercise of any of the rights under this section promptly after the exercise of such rights.
|
(j)
|
The Borrower shall pay to and indemnify and save harmless the Bank for the full amount of all out of pocket costs and expenses (including, but not limited to, any interest payable in order to maintain any Loan hereunder) which the Bank may sustain or incur as a consequence of the failure by the Borrower to pay when due any principal of or any interest on any Loan or any other amount due hereunder.
|
(k)
|
All payments made on account of principal, interest or otherwise shall be made to the Bank, to the extent permitted by applicable Legal Requirements, free and clear of and exempt from, and without deduction for or on account of, any present or future Taxes or other charges of any nature imposed, levied, collected, withheld or assessed by any Governmental Authority. However, in the event that any payments made under this Facility Letter shall not be made free and clear of and exempt from, and without deduction or withholding for or on account of any Taxes, then the Borrower shall gross up the payments to the Bank so that the Bank receives such additional amounts as may be necessary in order that each such net payment to the Bank, after payment or deduction or withholding for and on account of any such Taxes, will not be less than the amount to be paid and received by the Bank in accordance with this Facility Letter. With respect to each such deduction or withholding, the Borrower shall promptly pay any such Taxes and (but in no event later than 90 days after payment) furnish to the Bank evidence of such payment, satisfactory to the Bank and also at the Bank's request provide such certificates, receipts and other documents required to establish any tax credit to which the Bank may be entitled.
|
(I)
|
The agreements of the Borrower pursuant to the foregoing subparagraphs (1) and (m) shall survive the repayment of the Loans and the termination of this Facility Letter or the Credit Facilities (or both).
|
(m)
|
The remedies, rights and powers of the Bank under this Facility Letter, the Loan Documents and at law and in equity are cumulative and not alternative and are not in substitution for any other remedies, rights or powers of the Bank and no delay or omission in exercise of such remedy, right, or power shall exhaust such remedies, rights or powers or be construed as a waiver of any of them.
|
IV.
|
Conditions Precedent
|
(a)
|
completed Loan Documents registered where necessary in form and manner satisfactory to the Bank's solicitors;
|
(b)
|
confirmation that the Borrower is in compliance with each of the terms and conditions of this Facility Letter;
|
(c)
|
all identification, business activity, business structure and other "know your customer" documents and information as required by the Bank and any screening conducted in accordance with Sanctions and other applicable legal requirements; and
|
(d)
|
such other conditions as the Bank may determine, in its discretion.
|
V.
|
Borrower's Covenants and Conditions of Credit
|
(a)
|
The Borrower shall not, without the prior written consent of the Bank:
|
(i)
|
grant or allow any lien, charge, security interest, right or other encumbrance, whether fixed or floating, to be registered against or exist on any of its property and in particular, without limiting the generality of the foregoing, shall not grant a trust deed or other instrument in favor of a trustee;
|
(ii)
|
become a guarantor or an endorser or otherwise become liable upon any note or other obligation other than in the normal course of business of the Borrower;
|
(iii)
|
declare or pay dividends on any class or kind of its shares or other securities, repurchase or redeem any of its shares or other securities, or reduce its capital in any way whatsoever or repay any shareholders' advances that would cause a breach of agreed covenants;
|
(iv)
|
amalgamate with or permit all or substantially all of its assets to be acquired by any other person, firm or corporation or permit any reorganization or change in ownership or corporate structure of the Borrower, or the issuance of bearer shares;
|
(v)
|
permit any property taxes to be past due at any time; or
|
(vi)
|
enter into any agreement for the purchase or sale of any property outside the normal course of business; or
|
(vii)
|
borrow money, obtain credit or incur additional funded indebtedness (other than pursuant to the Credit Facilities).
|
(b)
|
The Borrower and the Guarantor agree to file all tax returns which it is required to file in accordance with any Legal Requirement from time to time; to pay or make provision for the payment of all taxes (including any interest and penalties); to pay any Potential Prior Ranking Claims when due; and to maintain adequate reserves for the payment of any tax which is being contested diligently in good faith.
|
(c)
|
The Bank shall have the right to waive the delivery of any Loan Documents or the performance of any term or condition of this Facility Letter, and may advance all or any portion of the Loans prior to satisfaction of any of
|
(d)
|
All financial terms and covenants shall be determined in accordance with generally accepted accounting principles, applied consistently.
|
(e)
|
If the amount outstanding under any Credit Facility in CAD plus the Canadian Dollar Equivalent of the amount outstanding under any of the Credit Facilities in a currency other than Canadian Dollars, at any time exceeds the Maximum Limit, the Bank may, from time to time, in its sole discretion:
|
(i)
|
limit the further utilization of that Credit Facility;
|
(ii)
|
convert all or part of the amount outstanding under that Credit Facility to Canadian Dollars in which event, interest shall accrue and be paid on such converted amounts at the rate set out in this Facility Letter for Canadian dollar advances accruing interest with reference to the Bank's Prime Rate. If no such rate is set out in this Facility Letter, interest shall accrue on the amount so converted at the Bank's Prime Rate plus 3% per annum, calculated monthly and payable on the last day of each month, both before and after demand, default, maturity or judgment and until indefeasible payment in full; or
|
(iii)
|
require the Borrower to pay the excess.
|
(f)
|
With respect to any monies payable by the Borrower hereunder, or any portion or portions thereof, which are payable in a currency other than CAD (the "
Foreign Currency Obligation
"), the following provisions shall apply:
|
(i)
|
payment of the Foreign Currency Obligation made hereunder shall be made in immediately available funds in lawful money of the jurisdiction in the currency of which the Foreign Currency Obligation is payable (the "
Foreign currency
") in such form as shall be customary at the time of payment for settlement of international payments in Vancouver, British Columbia without set-off, compensation, or counterclaim and free and clear of and without deduction for any and all present and future taxes, levies, imposts, deductions, charges and withholdings with respect thereto.
|
(ii)
|
if the Borrower makes payment to the Bank, or if an amount is applied by the Bank, in CAD in circumstances where the relevant indebtedness and liabilities constitute a Foreign Currency Obligation, such payment or amount shall satisfy the said liability of the Borrower hereunder only to the extent that the Bank is able, using the rate of exchange applied by the Bank in accordance with its normal banking procedures, to purchase the full amount of the relevant Foreign Currency owing with the amount of the CAD received by the Bank on the date of receipt, and the Borrower shall remain liable to and hereby agrees to indemnify the Bank for any deficiency (together with interest accruing thereon calculated and payable pursuant to the terms of the relevant underlying indebtedness and liabilities).
|
(iii)
|
the Borrower shall indemnify and hold the Bank harmless from any loss incurred by the Bank arising from any change in the value of CAD in relation to the relevant Foreign Currency between the date the Foreign Currency Obligation becomes due and the date of full, final and indefeasible payment thereof to the Bank.
|
(iv)
|
if for the purpose of commencing any proceeding against the Borrower to enforce payment of its indebtedness and liability under the Credit Facilities it is necessary to convert a sum due hereunder in a Foreign Currency into CAD, the rate of exchange used for purposes of commencing such proceeding shall be the rate of exchange at which in accordance with its normal banking procedures the Bank could purchase CAD with such Foreign Currency amount claimed to be due hereunder on the Business Day preceding that on which proceeding is commenced.
|
(v)
|
The obligation of the Borrower in respect of any such sum due from it to the Bank hereunder shall, notwithstanding any judgment in CAD, be discharged only to the extent that on the Business Day following receipt by the Bank of any sum adjudged to be so due in CAD the Bank may in accordance with its normal banking procedures purchase the relevant Foreign Currency in the full amount owing to the Bank with the CAD; if the amount of such Foreign Currency so purchased is less than the sum actually due to the Bank in such Foreign Currency the Borrower agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the Bank against such loss and if the Foreign Currency
|
(g)
|
The Borrower confirms that it will (i) not use any amounts advanced or seek advances under the Credit Facilities for any illegal purpose or (a) to fund any activity or business with any person or in any country or territory that is the subject or target of Sanctions or (b) in any manner that would result in a violation of Sanctions by any person (including any lender, advisor, or otherwise) and (ii) not repay any amounts owing to the Bank using any funds derived directly or indirectly from any illegal or sanctionable activity, provided that this covenant shall be inapplicable only to the extent of any relevant violation of the
Foreign Extra-Territorial Measures Act
(Canada) or any similar applicable anti-boycott law or regulation.
|
VI.
|
Environmental Matters
|
(a)
|
To the best of the Borrower's knowledge after due and diligent inquiry, no regulated, hazardous or toxic substances are being stored on any of the Borrower's !ands, facilities or premises (the "
Premises
") or any adjacent property, nor have any such substances been stored or used on the Premises or in the Borrower's business or any adjacent property prior to the Borrower's ownership, possession or control of the Premises. The Borrower agrees to provide written notice to the Bank immediately upon the Borrower becoming aware that the Premises or any adjacent property are being or have been contaminated with regulated, hazardous or toxic substances. The Borrower shall not permit any activities on the Premises which directly or indirectly could result in the Premises or any other property being contaminated with regulated, hazardous or toxic substances. For the purposes of this Facility Letter, the term "regulated, hazardous or toxic substances" means any substance, defined or designated as hazardous or toxic wastes, hazardous or toxic material, a hazardous, toxic or radioactive substance or other similar term, by any Legal Requirement now or in the future in effect, or any substance or materials, the use or disposition of which is regulated by any such Legal Requirement.
|
(b)
|
The Borrower shall promptly comply with all Legal Requirements relating to the use, collection, storage, treatment, control, removal or cleanup of regulated, hazardous or toxic substances in, on, or under the Premises or in, on or under any adjacent property that becomes contaminated with regulated, hazardous or toxic substances as a result of construction, operations or other activities on, or the contamination of, the Premises, or incorporated in any improvements thereon. The Bank may, but shall not be obligated to, enter upon the Premises and take such actions and incur such costs and expenses to effect such compliance as it deems advisable and the Borrower shall reimburse the Bank on demand for the full amount of all costs and expenses incurred by the Bank in connection with such compliance activities.
|
(c)
|
The property of the Borrower which are now or in the future encumbered by any one or more of the Loan Documents are hereby further mortgaged and charged to the Bank, and the Bank shall have a security interest in such assets, as security for the repayment of such costs and expenses and interest thereon, as if such costs and expenses had originally formed part of the Credit Facilities.
|
VII.
|
Increased Cost Indemnities.
|
VIII.
|
Bank Visits
|
IX.
|
Legal and Other Expenses
|
X.
|
Non-Merger; Records of Bank; Assignment
|
XI.
|
Waiver or Amendment
|
XII.
|
Severability
|
XIII.
|
Consent to Disclosure
|
(a)
|
Each Credit Party consents to and acknowledges that it is aware that credit, financial and personal inquiries regarding each Credit Party and individuals connected to Credit Parties (including directors, officers, shareholders and individuals acting on behalf of a Credit Party) may be gathered, made, maintained and/or used at any time in connection with: (i) initial and ongoing credit assessment, (ii) any funding of the Credit Facilities by investors or participants or any assignment or sale of the Credit Facilities by the Bank, and (iii) the enforcement of any remedies that the Bank may have under the Credit Facilities, (iv) compliance and risk monitoring purposes and each Credit Party consents to the making of any such inquiries by or on behalf of the Bank and consents, without restriction and without further notice to or further consent of the such Credit Party, to disclosure of any such information to any prospective investor, participant, assignee or purchaser of all or any part of the Credit Facilities. Each Credit Party irrevocably waives, to the extent permitted under applicable law, any and all rights it may have to notice of or to prohibit such disclosure, including, without limitation, any right of privacy.
|
(b)
|
The Bank may collect, use, transfer and disclose information for the following purposes and as follows:
|
•
|
Providing information respecting other services;
|
•
|
Taking any Compliance Action referred to in this Schedule A (including actions taken to comply with laws, international guidance, internal policies or procedures, requirements from judicial, administrative, law enforcement and regulatory authorities);
|
•
|
Conducting financial crime risk management activity, including verifying the identification of the Credit Party and related individuals, screening, monitoring and investigation activity, and sharing information within HSBC Group, including in other jurisdictions, for these purposes;
|
•
|
Judicial, administrative, public or regulatory bodies, as well as governments, tax, revenue and monetary authorities, examiners, monitors, securities or futures exchanges, courts, central banks or law enforcement bodies with jurisdiction over any HSBC Group member.
|
(c)
|
The Bank may collect, transfer and disclose information for these purposes from and to members of the HSBC Group, sub-contractors, agents and service providers within Canada and in other jurisdictions.
|
(d)
|
Before providing the Bank with personal information respecting any connected individual, the Credit Party will ensure that it has provided all necessary disclosures to, and obtained any necessary consents from, such individuals in connection with the collection, use and disclosure of such information by the Bank.
|
XIV.
|
Time of Essence
|
XV.
|
Indemnity
|
XVI.
|
Governing Law
|
XVII.
|
Financial Crimes and Sanctions Laws Acknowledgements and Indemnification
|
(a)
|
the Bank, HSBC Holdings plc, its affiliates and subsidiaries (together "
HSBC Group
"), and HSBC Group's service providers are required to act in accordance with the laws and regulations of various jurisdictions, including those which relate to Sanctions and the prevention of money laundering, terrorist financing, bribery, corruption and tax evasion;
|
(b)
|
the Bank may take, and may instruct other members of the HSBC Group to take, to the extent it or such member is legally permitted to do so under the laws of its jurisdiction, any action (a "
Compliance Action
") that the Bank or any such other member, in its sole discretion, considers appropriate to act in accordance with Sanctions or domestic and foreign laws and regulations. Such Compliance Action may include but is not limited to the interception and investigation of any payment, communication or instruction or other information; the making of further enquiries as to whether a Person or entity is subject to any Sanctions; and the refusal to issue, pay, renew, extend or transfer any DC or LG or to process any transaction or instruction that, in the Bank's discretion, may not conform with Sanctions. The Bank will use reasonable commercial efforts to notify the Borrower of the existence of such circumstances as soon as is reasonably practicable, to the extent permitted by law;
|
(c)
|
neither the Bank nor any member of HSBC Group will be liable for any loss, cost, damage, claim, action, suit, liabilities, suffered or incurred by the Borrowers, any Guarantor or other Person, or for any delay or any failure of the Bank to perform its duties under this Facility Letter arising out of or relating to any Compliance Action taken by or on behalf of the Bank, its service providers, or any HSBC Group member in its sole discretion;
|
(d)
|
the Bank may, in its sole discretion, refuse to issue, pay, renew, extend or transfer any DC or LG in connection with or relating to any countries, governments, entities
or
other Persons that are subject to Sanctions or limitations imposed by domestic or foreign laws, or by the Bank or any member of the HSBC Group, and that the Bank has the right, without prior notice to any Credit Party, to reject, refuse to pay, any demand, or not process any transaction or instruction that does not conform with any such Sanctions, or limitations; and
|
(e)
|
The Borrower will indemnify the Bank for all losses, costs, damages, claims, actions, suits, demands and liabilities suffered or incurred by or brought against the Bank arising out of or relating to any Compliance Action, unless such losses, costs, damages, claims, actions, suits, demands and liabilities are determined by a final, non-appealable decision of a court of competent jurisdiction to have been caused solely and directly by the gross negligence or wilful misconduct of the Bank.
|
XVIII.
|
Electronic Communications and Electronic Signatures
|
(a)
|
The Borrower hereby authorizes the Bank to accept electronic communications and electronic signatures from the Borrower in relation to this Facility Letter and the Loan Documents and hereby consents to receiving commercial electronic messages from or on behalf of the Bank and any agreement, instruction, document, information, disclosure, notice or other form of communication from the Bank by electronic communication.
|
(b)
|
The Borrower agrees that any electronic communication, including any electronic signature associated with such electronic communication, which the Bank receives from the Borrower or in the Borrower's name, or which appears to be from the Borrower or in its name, will be considered to be duly authorized and binding upon the Borrower (whether or not that electronic communication was actually from or authorized by the Borrower) and the Bank will be authorized to rely and act upon any such electronic communication, including any electronic signature associated with the electronic communication, even if it differs in any way from any previous electronic communication sent to the Bank.
|
(c)
|
The Borrower acknowledges that: (i) the form, format and delivery of each electronic communication will permit it to retain, store and subsequently access and retrieve such electronic communication without the requirement of any specialized or proprietary equipment or software from the Bank; and (ii) it is the Borrower's responsibility to acquire and maintain the necessary computer equipment and software to deliver, receive, store, retain and subsequently access each electronic communication.
|
(d)
|
The Borrower acknowledges and agrees that the Bank's methods of storing, maintaining and retrieving any electronic communication, including any electronic signatures associated with such electronic communication,
|
(e)
|
At the Bank's discretion, it may require: (i) electronic communications be delivered using technology acceptable to the Bank including the use of a secure electronic signature, and (ii) any agreement, instruction, document, information, disclosure, notice or other form of communication from the Borrower to be manually signed and/or delivered to the Bank in paper format. If the Bank requires that the Borrower acknowledge its agreement to this Facility Letter or any Loan Document by clicking the appropriate button, the Borrower will follow any instructions that the Bank provides to indicate the Borrower's agreement (which may include typing the Borrower's name and/or clicking "I Agree" or similar button).
|
(f)
|
When the Borrower's handwritten or electronic signature is delivered by facsimile, email or other electronic or digital transmission, such transmission shall constitute delivery of an executed copy of this Facility Letter or relevant Loan Document. If the Borrower uses an electronic signature to indicate its agreement, the Borrower shall ensure that its electronic signature is attached to or associated with the relevant electronic communication.
|
XIX.
|
Further Assurances
|
XX.
|
Conflict
|
XXI.
|
Confidentiality
|
HSBC
|
|
Borrower's Name XPEL Canada Corp.
|
Date 04/09/2018
|
Borrower's Address 1116 Levis Local 4, Terrebonne, QC, J6W 556
|
|
Bank Branch Address 2001 Mc Gill College Avenue, Montreal, QC, H3A 1G1
|
US Dollar Current
Account Number
N/A
|
Loan Limit*
N/A
|
Rate of Interest on Loan*
U.S. Base Rate plus
N/A
%
|
Monthly Fee*
N/A
|
Canadian Dollar Current
Account Number
|
Loan Limit*
4,500,000
|
Rate of Interest on Loan*
Prime Rate plus
0.25
%
|
Monthly Fee*
N/A
|
1.
|
For the purposes of this Agreement:
|
(a)
|
"Business Day" means any day, other than a Saturday, Sunday or statutory (or civic) holiday, on which the Bank is open for business at the above Bank Branch;
|
(b)
|
"Loan" means at any time the amount by which: (i) the aggregate amount debited to the Account whether with respect to cheques, withdrawals, preauthorized payments, and other authorized debit entries, electronic transfers and any other orders or instructions for the payment of money or transfer of funds (collectively referred to as "Payment Items") together with (ii) interest, service charges and fees imposed by the Bank, and debited to the Account exceeds the aggregate at such time of all amounts credited to that Account;
|
(c)
|
"Prime Rate" means the variable annual rate of interest established and adjusted by the Bank from time to time as a reference rate for purposes of determining rates of interest it will charge on commercial loans in Canada denominated in Canadian dollars, but in no event shall such rate be less than zero for the purposes of this Agreement;
|
(d)
|
"CAD" means Canadian dollars;
|
(e)
|
"CAD Spot Rate of Exchange" means the rate of exchange quoted by the Bank for the purchase of CAD with either USD or the relevant other non-Canadian currency at the time in question, including all premiums and costs;
|
(f)
|
"USD" means United States dollars;
|
(g)
|
"U.S. Base Rate" means the variable annual rate of interest established and recorded by the Bank from time to time as a reference rate for the purposes of determining rates of interest it will charge on loans in Canada denominated in USD, based on a 360 day year, but in no event shall such rate be less than zero for the purposes of this Agreement;
|
(h)
|
"USD Spot Rate of Exchange" means the rate of exchange quoted by the Bank for the purchase of USD currency with the relevant non USD currency at the time in question, including all premiums and costs;
|
(i)
|
all Loan advances by the Bank and all payments to be made by the Borrower under this Agreement shall, unless otherwise expressly stated herein, be made in the currency of the relevant Account, as designated above, being either USD or CAD, and all references to "Account" shall refer to the account in the currency of the Loan unless otherwise stated; and
|
(j)
|
all words denoting the singular shall be pluralized throughout this Agreement as the context requires and all words denoting gender shall be construed as the context requires and will include a body corporate where the context requires.
|
2.
|
The Bank is hereby authorized, but is not obligated, to make Loans available in sufficient funds to cover the debit balance in Account(s) from time to time.
|
3.
|
Interest shall accrue and the Borrower shall pay interest to the Bank, on the daily closing balance of the Loan: (i) if in CAD at a floating rate per annum equal to the Prime Rate plus the percentage noted above, (ii) if in USD at a floating rate per annum equal to the US Base Rate plus the percentage noted above, (or at such other rate as may be amended from time to time in writing between the Bank and the Borrower) in both instances accruing daily and calculated and payable monthly, on the last day of each and every month in arrears, both before and after demand for repayment, termination of the Account or judgment, and until final indefeasible payment of the Loan in full. A certificate of a vice-president of the Bank shall be conclusive evidence of the Prime Rate or U.S. Base Rate at any particular time. For the purpose of the
Interest Act
(Canada), the annual rate of interest to which interest calculated on the basis of a year of 360 days is equivalent, is such rate of interest multiplied by the actual number of days in such year divided by 360.
|
4.
|
The Borrower shall pay to the Bank on the last day of each and every month from the date of this Agreement until this Agreement is terminated, a monthly fee in the amount set out above. It is understood by the Borrower that the monthly fee is in addition to all other charges payable by the Borrower under any other agreement or agreements entered into with the Bank.
|
5.
|
The Bank may debit the Account monthly with the amount of all interest (including compound interest) payable by the Borrower to the Bank pursuant to this Agreement as well as the monthly fee described above and other charges payable by the Borrower, and, when incurred, the amount of all legal fees and costs (if any) incurred by or on behalf of the Bank with respect to the Borrower, and the Borrower hereby irrevocably authorizes and directs the Bank to do so. Without limiting any rights of the Bank arising by law, the Bank shall also be entitled to set off all or any portion of a Loan outstanding from time to time against credit balances in any account of the Borrower at the Bank or against any other money which may from time to time be owing to the Borrower from the Bank, irrespective of currency, and the Borrower hereby irrevocably authorizes and directs the Bank to do so.
|
6.
|
The Borrower shall not permit the aggregate outstanding balance of the Loan at any time to exceed the Loan Limit applicable to the Account, as set out above, nor any margin requirements which may be imposed by the Bank in relation to outstanding indebtedness and liability of the Borrower to the Bank pursuant to any credit agreement, facility letter or other agreement between them (the "Margin Requirement"). The Bank may refuse to honour any Payment Item and may refuse to permit any withdrawal or transfer from the Account if the aggregate outstanding balance of the Loan, together with the amount of issued letters of credit or letters of guarantee and all other liabilities or contingent liabilities incurred by the Bank on behalf of the Borrower, plus the risk component identified in each foreign exchange forward contract issued by the Bank on behalf of the Borrower exceeds, or would exceed (as a result of any such Payment Item, withdrawal or transfer) the Loan Limit or the Margin Requirement. This Agreement shall continue to apply to the Loan and to the Borrower notwithstanding any Loan in excess of the Loan Limit or Margin Requirement.
|
7.
|
The Borrower shall use the Account and incur each Loan solely for business purposes. The Borrower shall not use the proceeds from any Loan for any illegal purpose and shall not repay the Loan or make deposits to the Account that are derived from any illegal activity.
|
8.
|
The Borrower shall deliver to the Bank from time to time, promptly on request by the Bank and in form and substance satisfactory to the Bank, a demand promissory note or other acknowledgement of debt evidencing the amount of all indebtedness and liability then owing by the Borrower to the Bank pursuant to or in respect of this Agreement. In the event that any such promissory note or any other acknowledgement of debt, security or other document is requested by the Bank, the Bank shall not be obligated to honour any Payment Item or permit any withdrawal or other debit to the Account nor make any Loan until such promissory note, other acknowledgement of debt, security or other document is delivered to the Bank.
|
9.
|
The Borrower shall comply with all present and future agreements between the Borrower and the Bank including any operation of account agreement between the Borrower and the Bank; provided that in the event there exists any conflict between any provision of such operation of account agreement (or other agreement) and the corresponding provision hereof, the applicable provisions of this Agreement shall govern.
|
10.
|
The Bank shall have the right at any time in its discretion for any reason to reduce the Loan Limit or cancel availability of Loans under this Agreement (and return unpaid any Payment Item presented for payment and decline any request for withdrawal or transfer of funds from an Account for which sufficient funds or credit is not available) or demand immediate payment of the aggregate outstanding amount of a Loan, or any part thereof, together with interest, fees, charges and costs outstanding hereunder and the Borrower shall forthwith comply with any such demand. In addition, and without diminishing the Bank's right to reduce the Loan Limit or demand repayment at any time for any reason, the Loan and all other amounts payable by the Borrower to the Bank pursuant to this Agreement shall at the Bank's option forthwith become due and payable without notice or demand if:
|
(a)
|
the Borrower fails to pay when due any amount owing by the Borrower to the Bank pursuant to this Agreement or if the Borrower defaults pursuant to any other provisions of this Agreement;
|
(b)
|
any representation by the Borrower to the Bank made in connection with this Agreement or any other agreement is false or materially inaccurate;
|
(c)
|
the Borrower becomes insolvent or bankrupt or if a bankruptcy petition is filed against the Borrower;
|
(d)
|
any attachment, execution or levy is made against the Borrower or any of the Borrower's assets;
|
(e)
|
the Borrower is in default of any other indebtedness owing by the Borrower to the Bank or the Borrower fails to comply with any other written undertaking or agreement by the Borrower to or with the Bank; or
|
(f)
|
any indebtedness owing by the Borrower to any other creditor of the Borrower is in default.
|
11
|
Notwithstanding any termination of this Agreement, such termination shall not relieve the Borrower of any obligations and liabilities which it has incurred to the Bank pursuant to this Agreement whether before or after such termination.
|
12.
|
Upon receipt from or electronic posting by the Bank each month of a statement of the Account and any Payment Items (or copies or images thereof), the Borrower shall check the credit and debit entries on the statement and review the Payment Items. The Borrower shall promptly notify the Bank in writing of any errors, irregularities or omissions. Thirty days following delivery or posting of the statement, it shall be conclusively settled as between the Bank and the Borrower that the statement and the amount of the balance shown thereon is correct (except as to any errors, irregularities or omissions of which the Customer has notified the Bank) and the said Payment Items and other debits are genuine and properly charged against the Account and that the Borrower was not entitled to be credited with any amount not credited. For greater certainty, the Bank shall not, in any legal action to which the Bank is a party, be required to prove the existence of any transaction which is disclosed by any such statement or the accuracy of any such statement.
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13.
|
If more than one Borrower signs this Agreement:
|
(a)
|
the obligations of each Borrower pursuant to this Agreement are joint and several;
|
(b)
|
the Bank is hereby authorized to honour any Payment Item drawn on the Account or pay any withdrawal from the Account to create or increase the Loan (subject to the Loan Limit for the Account and any Margin Requirement) if any such Payment Item is signed by any one of the Borrowers; and
|
(c)
|
all words denoting the singular shall be pluralized throughout this Agreement as the context requires and all words denoting gender shall be construed as the context requires.
|
14.
|
If this Agreement is signed by a partnership:
|
(a)
|
the obligation of the partners of the partnership to the Bank are joint and several; and
|
(b)
|
the Bank is hereby authorized to honour any Payment Item drawn on the Account or permit any withdrawal or transfer from the Account to create or increase the Loan (or otherwise) if any such cheque or withdrawal request is signed by one of the partners (subject to the Loan Limit and any Margin Requirement).
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15.
|
If the Borrower is a corporation, the rights and remedies of the Bank under this Agreement will not be prejudiced, diminished or otherwise adversely affected by any change whatsoever in its objects, capital structure, constitution and notwithstanding amalgamation, merger or reorganization with any other corporation, and in this Agreement the word "Borrower" shall include every firm and corporation which results from the aforesaid events or which is otherwise the successor or assignee of the Borrower at law.
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16.
|
If the Account and the Loan(s) are denominated in USD, the obligation of the Borrower in respect of any such sum due from it to the Bank hereunder shall, notwithstanding any judgment or order in CAD, be discharged only to the extent that on the business day following receipt by the Bank of any sum adjudged to be so due in CAD the Bank may in accordance with its normal banking procedures purchase USD with the CAD at the USD Spot Rate of Exchange for the full amount of USO owing hereunder; if the amount of the USD so purchased is less than the sum actually due to the Bank in USO the Borrower agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the Bank against such loss and if the USD purchased exceeds the sum actually due to the Bank in USD, the Bank agrees to remit such excess to the Borrower as the Borrower may be entitled thereto.
|
17.
|
Any notice or statement referred to herein, or otherwise to be given for the purposes of this Agreement: (1) may be delivered or may be mailed by prepaid ordinary mail to the Borrower at its address set out above and the Borrower shall be deemed to have received such notice or statement on the date of delivery, if delivered, and three days after mailing, if mailed; or (2) by electronic means to the Borrower if so agreed by the parties, and the Borrower shall be deemed to have received such notice or statement on the Business Day following the day of transmission or posting.
|
18.
|
This Agreement shall be governed by and construed in accordance with the laws of the province in which the Branch of the Bank is located, as set forth above and shall enure to the benefit of the Bank, its successors and assigns and shall be binding on the Borrower, and the Borrower's successors, assigns, heirs, executors and administrators.
|
19.
|
This Agreement shall be in addition to any other debt instrument, security or agreement between the Bank and the Borrower and shall enure to the benefit of the Bank, its successors and assigns and shall be binding on the Borrower and the Borrower's heirs, executors, administrators, successors and assigns. The Borrower shall not be entitled to assign its rights and obligations under this Agreement without the Bank's prior written consent (to be given or withheld in the Bank's sole discretion). The Bank may assign its rights and obligations under this Agreement upon notice to the Borrower, given not later than 10 days after any such assignment.
|
20.
|
All reasonable legal costs incurred by the Bank in the preparation or enforcement of this Agreement or any security required hereunder shall be for the account of the Borrower.
|
21.
|
If any paragraph, or part thereof, of this Agreement is found to be invalid or unenforceable such invalidity or unenforceability shall not affect the validity or enforceability of the balance of this Agreement or, as relevant, the balance of such paragraph, and any waiver by the Bank of any term of this Agreement (which must be in writing signed by the Bank, to be binding upon the Bank) shall not constitute a waiver of any subsequent breach.
|
22.
|
Any security for the Loan held by the Bank shall not be released, discharged, redeemed or extinguished by reason of the Loan being repaid or the Account ceasing to have a debit balance at any time or from time to time, or the Borrower ceasing to be indebted to the Bank, and shall subsist and secure future amounts debited to the Account and the future balance of the Loan until such security is returned or released and discharged in writing by the Bank.
|
23.
|
This Agreement may be signed by handwritten signature or electronically by using technology acceptable to the panics.
|
24.
|
The parties hereto have expressly required that this Agreement and all deeds, documents and notices relating thereto be drafted in the English language. Les parties aux presentes ont expressément exigé que la présente convention, et tous autres actes, documents ou avis s'y rattachant soient redigés en langue anglaise.
|
For a Corporation:
|
|
||
|
|
|
|
|
|
|
|
XPEL Canada Corp.
|
|
||
Full Legal Name of Corporate Customer
|
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||
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|
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(Corporate Seal)
|
By:
|
/s/ Barry R. Wood
|
|
|
|
Authorized Signatory
|
|
|
|
Name:
|
Barry R. Wood
|
|
|
Title:
|
CEO
|
|
|
|
|
|
By:
|
/s/ Christen L. Coffee
|
|
|
|
Authorized Signatory
|
|
|
|
Name:
|
Christen L. Coffee
|
|
|
Title:
|
Controller
|
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For a Partnership:
|
|
|
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Signed, Sealed and Delivered in the presence of:
|
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|
|
Full Legal Name of Partnership Customer
|
|
|
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|
|
Witness
|
|
By:
|
|
|
|
|
Authorized Signatory
|
Name
|
|
|
Name:
|
|
|
|
Title: Partner
|
Address
|
|
|
|
|
|
|
|
Witness
|
|
By:
|
|
|
|
|
Authorized Signatory
|
Name
|
|
|
Name:
|
|
|
|
Title: Partner
|
Address
|
|
|
|
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|
|
Witness
|
|
By:
|
|
|
|
|
Authorized Signatory
|
Name
|
|
|
Name:
|
|
|
|
Title: Partner
|
Address
|
|
|
|
Shanghai XingYing Trading Co., Ltd.
|
Room 117, No. 1 Middle Fu Te Road
|
Shanghai, China
|
Pilot Free Trade Zone
|
(A)
|
The Corporation produces and sells paint protection films, headlamp protection films, window films, installation aids and other XPEL branded products and non-XPEL branded products, and licenses Design Access Program Software (the “
Software
”). The XPEL branded products and Software bear the trademarks listed on
Exhibit A
hereto, as it may be unilaterally amended from time to time by the Corporation in its sole discretion (collectively, the “
Trademarks
”);
|
(B)
|
The Distributor desires the right to promote, distribute and sell certain products and to license the Software in the Territory (as hereinafter defined) pursuant to the terms and conditions of this Agreement;
|
(C)
|
The Distributor has assured the Corporation that it possesses the necessary technical and commercial competence and the ability to easily structure the organization necessary to ensure efficient performance of its contractual obligations hereunder; and
|
(D)
|
The Corporation is willing to sell certain products to the Distributor under the terms and conditions of this Agreement.
|
1.1
|
Appointment
.
|
(a)
|
Products
. Subject to the terms and conditions of this Agreement, the Corporation grants to Distributor, in the Territory, the (i) exclusive right to promote, market, distribute and sell the products listed on
Exhibit B
, which may be amended by the parties from time to time (the “
Exclusive Products
”), and (ii) non-exclusive right to promote, market, distribute and sell the products listed on
Exhibit C
, which may be amended by the parties from time to time (the “
Non-Exclusive Products
” and together with the Exclusive Products, the “
Products
”). Subject to the terms and conditions of this Agreement, the Corporation also grants to Distributor, in the Territory, the right to install the Products, as applicable, for end-customers in the Territory. The Distributor hereby accepts such appointment and agrees to use its best efforts to develop and promote the sale of the Products in the Territory, in accordance with the terms and conditions of this Agreement. Distributor agrees to not promote, market, distribute or sell the Products to anyone outside the Territory. Notwithstanding anything in this Section 1.1(a), Distributor acknowledges and agrees that the Corporation may continue to promote, market, distribute and sell the Products directly to any of its global accounts that are located within the Territory, and that the Corporation may also promote, market, distribute and sell other products not listed on
Exhibits B or C
in the Territory, including private- or non-labeled versions of the Products, with or without Distributor’s assistance in servicing such accounts.
|
(b)
|
Software License
. Subject to the terms and conditions of this Agreement, the Corporation grants to Distributor the non-exclusive right to use the Software in the Territory, for Distributor's internal use in connection with the applicable Products only, pursuant to the Corporations End User License Agreement, as amended by the Corporation from time-to-time in its sole discretion ("EULA"), and the Distributor hereby accepts such right to use the Software. Subject to the terms and conditions of this Agreement, the Corporation also grants to Distributor the [non-]exclusive right to sell the right to use the Software, as listed on Exhibit B, which may be amended by the parties from time to time, in the Territory in connection with customers' purchase of applicable Products, in accordance with the terms and conditions of this Agreement. The Distributor will not sublicense or otherwise provide the Software to any third party. The Corporation reserves the right to determine whether any customer of Distributor may license the Software pursuant to the EULA between such end-customer and the Corporation. Notwithstanding anything in this Section 1.1(b), Distributor acknowledges and agrees that the Corporation may continue to license the software directly to any of its global accounts and any end-customer of Distributor located within the Territory, and that the
|
(c)
|
Exclusive Distributor
. The Distributor agrees that it, its principals, officers, owners, directors, parents, subsidiaries and other affiliates will not distribute any products or promote and market any Software that compete with the Exclusive Products or the Software in the Territory.
|
1.2
|
Discontinuations
. Nothing in this Agreement precludes the Corporation from at any time discontinuing the sale of any Product which the Corporation concludes in its sole discretion is no longer profitable or otherwise feasible for the Corporation to sell.
|
1.3
|
Limitations
. The Distributor shall buy and sell the Products in its own name and for its own account. The Distributor is an independent contractor, and not an employee, agent, joint venturer or partner of the Corporation. The Distributor and employees of the Distributor shall identify themselves as such, and shall make clear the limitations of their authority to any potential or actual customers of the Products. The Distributor may not, in any manner, accept any obligation, incur any liability, promise any performance or pledge any credit on behalf of, or for the account of, the Corporation except as expressly permitted under this Agreement. Each party shall pay any and all expenses and charges relating to the performance of its contractual obligations hereunder.
|
2.1
|
Territory
. The territory covered by this Agreement is the Mainland of the Peoples Republic of China, (the “
Territory
”), and expressly excludes Taiwan, Macau and Hong Kong. Distributor is prohibited from selling outside the Territory without the Corporation’s prior written permission.
|
3.1
|
The standard selling price to the Distributor for the Products will be the Corporation's list price in effect at the time of the Distributor's order. The Distributor shall submit purchase orders for the Products to the Corporation in writing via e-mail or facsimile, which purchase orders shall set forth, at a minimum: identification of the Products ordered, quantity and requested delivery dates.
|
3.2
|
Unless otherwise agreed to in writing by the parties, prices, shipments and risk of loss are Ex Works the Corporation’s facilities; title and risk of loss pass to Distributor in accordance with the definition of Ex Works in Incoterms 2010.
|
3.3
|
The Corporation's price list (including, without limitation, the pricing for the Software) is subject to change on thirty (30) days' prior written notice to the Distributor, and any such price changes shall take effect only on orders placed after such thirty (30) day period.
|
3.4
|
Payment shall be in U.S. Dollars by method acceptable to the Corporation. Unless otherwise agreed to in writing by the parties, all orders must be prepaid by Distributor prior to shipment by the Corporation.
|
3.5
|
In the event of any delay in payment of any amounts due to the Corporation hereunder, the Corporation shall have the right to suspend deliveries and may, at its option, terminate the order, as well as any and all other orders and contracts with the Distributor. In the event that the Corporation does not receive any payment when due, the Distributor shall pay to the Corporation as a late charge and not as a penalty, interest on the unpaid balance from the due date until payment is actually received by the Corporation, at the rate per annum (to be determined as of the due date) equal to the rate of interest most recently published by
The Wall Street Journal
as the “prime rate” at large United States money center banks. The Corporation’s right to such interest shall be in addition to and not in lieu of all other rights and remedies arising by reason of such non-payment. Any payment received by the Corporation may be applied by the Corporation first to any outstanding interest due and then to any outstanding balance owed by the Distributor to the Corporation, as the Corporation in its sole discretion shall determine. The Distributor shall make all payments in accordance with the terms of this Agreement notwithstanding any claim for any alleged fault, defect or irregularity in the Products, and in the event of any delay in payment, the Corporation may, at its option, terminate the order and hold the Distributor liable for damages.
|
4.1
|
The Distributor, at its own cost and expense, shall use all reasonable commercial efforts to develop and exploit the maximum sales for the entire line of the Products in the Territory. This covenant to use all reasonable commercial efforts shall include without limitation the following obligations:
|
(a)
|
Sales Organization
. Distributor shall establish and maintain a sales organization of personnel who are fully trained and knowledgeable about the Products, including at least one dedicated full-time sales representative.
|
(b)
|
Inventory
. The Distributor shall maintain an adequate selection and stock of the Products as is necessary to fulfill customers’ demands and to guarantee requests for replacement under warranty, as set forth in Article 6 of this Agreement, as determined by the Distributor based upon its prior business operations and experience and upon the fixed delivery times.
|
(c)
|
Advertising and Promotion
. The Distributor agrees to conduct, at its own expense, advertising and public relations campaigns and to attend trade shows for the purpose
|
(d)
|
Website.
The Distributor agrees to display the Products and the Corporation’s logo on Distributor’s website in a manner acceptable to the Corporation.
|
(e)
|
Distributor Training
.
Distributor will be responsible for training its employees, contractors and sub-distributors with respect to the Products. The Corporation will have the right to review and approve any training curriculum and materials used by Distributor. The Corporation may also, at its expense, attend, audit and review Distributor's training sessions. The Corporation will also make its training sessions in the United States available for Distributor personnel, pending space availability at such sessions, free of charge; provided, however, that Distributor will be responsible for travel, food, accommodations and related expenses for any personnel participating in such training sessions.
|
(f)
|
Licenses and Permits
. The Distributor agrees that it shall obtain any and all licenses and permits which may be required under all applicable Federal, State or local laws or regulations in order to perform the duties and obligations hereunder.
|
4.2
|
The Distributor undertakes to comply with the rules of fair competition and all other applicable Federal, State or local laws and regulations.
|
4.3
|
Except as expressly provided by this Agreement, any and all expenses and /or charges connected with the fulfillment of the Distributor’s obligations and activity pertaining to this Agreement shall be exclusively borne by the Distributor.
|
4.4
|
The Corporation’s representatives may, upon prior written notification, visit the Distributor’s offices and visit with the Distributor’s management and personnel at any reasonable time during normal business hours, in order to assist in the improvement of the sales and marketing of the Products.
|
4.5
|
The Distributor agrees to provide the Corporation with regular information as is necessary to keep the Corporation up to date regarding sales of the Products, market trends, and the products and advertising of competitors. Upon the Corporation’s request and at the Corporation’s expense, the Distributor shall furnish the Corporation with brochures, advertising, illustrations and samples of competitors’ products.
|
4.6
|
The Distributor agrees that during the Term of this Agreement, it will not create, develop, manufacture, invest in, finance or acquire any technologies or products that directly compete with the Corporation.
|
4.7
|
The Distributor will have the right to appoint sub-distributors within the Territory, subject to the Corporation's approval and the execution of a sub-distributor agreement between
|
5.1
|
At a minimum, Distributor will submit binding orders to the Corporation for Products, as set forth on the attached
Exhibits B and C
.
|
6.1
|
THE CORPORATION WARRANTS TO THE DISTRIBUTOR EACH PRODUCT SOLD BY IT TO BE FREE FROM DEFECTS IN MATERIAL AND WORKMANSHIP UPON DELIVERY.
|
6.2
|
PRODUCTS WHICH DO NOT CONFORM TO THEIR DESCRIPTION OR WHICH ARE DEFECTIVE IN MATERIAL OR WORKMANSHIP WILL, BY THE CORPORATION’S DECISION, BE REPLACED OR REPAIRED, OR, AT THE CORPORATION’S OPTION, CREDIT FOR THE ORIGINAL PURCHASE PRICE MAY BE ALLOWED PROVIDED THAT DISTRIBUTOR NOTIFIES THE CORPORATION IN WRITING OF SUCH DEFECT WITHIN 30 DAYS OF DISCOVERY AND DISTRIBUTOR RETURNS SUCH PRODUCTS IN ACCORDANCE WITH THE CORPORATION'S INSTRUCTIONS. THIS WARRANTY WILL NOT APPLY AFTER THREE YEARS FROM THE DATE OF DELIVERY OF THE PRODUCTS. NO PRODUCTS MAY BE RETURNED BY THE DISTRIBUTOR WITHOUT THE CORPORATION'S PRIOR WRITTEN AUTHORIZATION.
|
6.3
|
THIS WARRANTY DOES NOT APPLY TO ANY PRODUCT WHICH HAS BEEN SUBJECTED TO MISUSE, ABUSE, NEGLIGENCE OR ACCIDENT BY THE DISTRIBUTOR OR THIRD PARTIES.
|
6.4
|
THE CORPORATION MAKES NO OTHER WARRANTY OR REPRESENTATION OF ANY KIND WITH RESPECT TO THE PRODUCTS, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THAT OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE. FAILURE TO MAKE ANY CLAIM IN WRITING, OR WITHIN THE THRITY (30) DAY PERIOD SET FORTH ABOVE, SHALL CONSTITUTE AN IRREVOCABLE ACCEPTANCE OF THE PRODUCTS AND AN ADMISSION BY THE DISTRIBUTOR THAT THE PRODUCTS FULLY COMPLY WITH ALL TERMS, CONDITIONS AND SPECIFICATIONS OF DISTRIBUTOR'S PURCHASE ORDER. THE CORPORATION SHALL NOT BE LIABLE FOR DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, UNDER ANY CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, DAMAGE OR LOSS RESULTING FROM INABILITY TO USE THE PRODUCTS, INCREASED OPERATING COSTS OR LOSS OF SALES, OR ANY OTHER DAMAGES. TO MAKE
|
6.5
|
THE FOREGOING CONSTITUTES THE DISTRIBUTOR'S SOLE AND EXCLUSIVE REMEDY AND THE CORPORATION'S SOLE OBLIGATION WITH RESPECT TO PRODUCTS FURNISHED HEREUNDER.
|
7.1
|
Right to Indemnification
. Distributor will indemnify, defend and hold the Corporation and any of its officers, directors, affiliates, employees, agents, successors and permitted assigns (each, an “
Indemnified Party
”) harmless from and against any and all third party claims, causes of action, and liabilities for any loss, liability, cost, damage, expense (including costs of investigation and defense and reasonable attorneys’ fees and expenses), or judgment arising out of or resulting from: (i) any Distributor breach of a representation, warranty, covenant or obligation in this Agreement; or (ii) the installation of any Products contemplated under this Agreement.
|
7.2
|
Procedure
. If an Indemnified Party receives service of process or the receipt of actual notice of a claim with regard to which such party desires to seek indemnification hereunder, the Indemnified Party shall promptly notify Distributor of the receipt of such notice or service of process for which such indemnification is sought. Distributor shall promptly assume full responsibility for the defense of any such suit, claim or proceedings. The Indemnified Party shall cooperate in such defense at the expense of Distributor. Failure to give timely notice of any claims which may give rise to an indemnification claim under this Agreement shall not affect the rights of the Indemnified Party to collect indemnification from Distributor so long as such failure does not materially and substantially adversely affect the Indemnifying Party’s ability to defend such claim against a third party.
|
8.1
|
Unless otherwise terminated in accordance with the terms of this Agreement, the duration of this Agreement is for so long as Distributor has the right to promote, market, distribute and sell any Product, pursuant to
Exhibits B and C
(the “
Term
”).
|
8.2
|
Notwithstanding Section 8.1 above, this Agreement may also be terminated at any time by the Corporation immediately upon written notice to the Distributor in the event that Distributor materially breaches any term or condition of this Agreement, including, without limitation, (a) failing to comply with the applicable federal, State and local laws and regulations, pursuant to Section 4.2 above; (b) failing to achieve any minimum purchase requirements set forth in this Agreement; and (c) failing to comply with the price and payment term provisions set forth in Article 3 hereof. Furthermore, the Corporation may also unilaterally terminate the Distributor’s (i) right to promote, market, distribute and sell any
|
8.3
|
Notwithstanding anything in Sections 8.1 or 8.2, this Agreement may also be terminated at any time by either party immediately upon written notice to the other party (the “
Subject Party
”) in the event that after the date hereof:
|
(a)
|
The Subject Party shall suspend or discontinue its business, or shall make an assignment for the benefit of, or composition with, creditors, or shall become insolvent or be unable or generally fail to pay its debts when due, or becomes in any jurisdiction a party or subject to (voluntarily or involuntarily) any liquidation or dissolution action or proceeding with respect to itself, or any bankruptcy, reorganization, insolvency or other proceeding for the relief of financially distressed debtors is commenced with respect to it, or a receiver, liquidator, custodian or trustee shall be appointed for it or a substantial part of its assets (and with respect to any involuntary action or proceeding, an order entered in the proceeding is not dismissed within thirty (30) days) or it shall take any action to effect or which indicates its acquiescence in any of the foregoing; or
|
(b)
|
The Subject Party materially breaches any provision of this Agreement and fails to cure such default within thirty (30) days of receipt of written notice thereof, with the exception of the reasons for default set forth in Section 8.2 above, the occurrence of which give the Corporation the right of immediate termination.
|
8.4
|
Procedure Upon Termination
. Upon termination of this Agreement, the Corporation is entitled to restrict or cease deliveries of the Products to the Distributor, including deliveries on orders already received at the time of the notice of termination. Distributor must cease any and all use of the Software upon termination. Also upon termination of this Agreement, the Distributor shall cease to have any rights, liabilities or obligations hereunder, with the exception of the Distributor’s obligations under Sections 3.4 and 3.5 and Articles 7 through 12, which obligations shall survive termination. Notwithstanding the foregoing, except in the event of termination by the Corporation pursuant to Section 8.3(a), the Corporation is required to make the Products available to the Distributor in such quantities so as to enable the Distributor to maintain the Distributor’s own delivery commitments existing before the effective date of termination, subject to proof being given by the Distributor to the Corporation that it was under unconditional contractual obligations at the time it received notice of termination to make deliveries which it cannot fulfill from its inventory; provided, however, that Distributor’s liabilities and obligations hereunder with regard to any Products made available by the Corporation in accordance with this sentence shall survive termination of this Agreement. After any notice of termination is given, the Corporation may modify the terms of payment for any subsequent shipment.
|
9.1
|
Confidential Information
. During the Term hereof and thereafter, the Distributor agrees to keep secret all Confidential Information and will take all steps and institute any internal secrecy procedures which may be necessary to maintain the secrecy of the Confidential Information and further agrees that it shall not use the Confidential Information except as required in connection with the performance of its obligations under this Agreement. Distributor shall cause its directors, officers, employees, affiliates, partners, members, managers, advisors, agents and representatives to comply with the terms of this Article 9 to the same extent as if they were parties hereto, and the Distributor shall be responsible for any breach of such terms by any such persons. Upon termination of this Agreement, Distributor shall immediately cease to use the Confidential Information and shall promptly return to the Corporation all documents, copies and other materials in its possession or control which in any way embody or evidence the Confidential Information. As used herein, the term “
Confidential Information
” shall mean all information, including technical information, know-how and other proprietary data and information, disclosed to the Distributor or otherwise acquired by the Distributor in connection with its performance of its obligations under this Agreement, concerning or relating in any way to the markets, customers, products, intellectual property, procedures, plans, operating experience, marketing strategies, organization, employees, financial conditions or plans or business of the Corporation, its subsidiaries or affiliates, except for such knowledge or information which: (i) is or later becomes publicly known under circumstances involving no breach of this Agreement by the Distributor; (ii) was already known to the Distributor at the time it received the information or knowledge; (iii) is made available to the Distributor by a third party without secrecy obligation and without breach of its obligations to the Corporation; or (iv) the Distributor is required by law to divulge, provided that Distributor has given the Corporation prior written notice of such requirement and a reasonable opportunity to seek, at its sole cost and expense, an appropriate protective order or other remedy, after which the Distributor shall be permitted to disclose only such portion of such information which is still required to be disclosed.
|
9.2
|
The Corporation and Distributor agree not to disclose the terms of this Agreement directly or indirectly to any referral, customer, vendor or any person without the prior written consent of the other party to this Agreement.
|
10.1
|
Trademark
. During the Term of this Agreement, the Distributor shall have the limited, non-exclusive, royalty-free right and license to use the Trademarks, for the sole purpose of promoting and selling the XPEL branded Products in the Territory, which Distributor has the right to promote and sell pursuant to
Exhibits B and C
, and for no other purpose; provided however that the Distributor must obtain the Corporation’s prior written consent to use the Trademarks in catalogues, promotional materials, and advertising materials.
|
10.2
|
Use of the Trademarks shall conform to the following requirements:
|
(a)
|
The Distributor shall not use the Trademarks in any manner other than as set forth in Section 10.1 above without the prior written approval of the Corporation;
|
(b)
|
The Distributor shall not put or retain the Trademarks in the Distributor’s own name or any business name;
|
(c)
|
The Distributor shall not use the Trademarks in any manner which suggests an affiliation with the Corporation other than that of distributor of the XPEL branded Products;
|
(d)
|
The Distributor shall not add to, or use with, the Trademarks any other trade name, trademark, symbol or device without the prior written approval of the Corporation;
|
(e)
|
The Distributor shall employ any symbol or notice with the Trademarks which the Corporation advises is necessary, from time to time, to identify and protect the interest of the Corporation in the Trademarks;
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(f)
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The Distributor shall apply no other trade name or trademark, nor any labels, signs or markings of any kind, to the XPEL branded Products without the prior written consent of the Corporation; and
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(g)
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The Distributor shall not use any Trademark, service mark, trade name, insignia or logo that is confusingly similar to any of the Trademarks other than as conferred by this Agreement.
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10.3
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The Distributor hereby acknowledges that the Corporation (or licensors of the Corporation) is the sole owner of the Trademarks and the goodwill pertaining thereto and that nothing contained herein shall constitute an assignment of the Trademarks or grant to Distributor any right, title or interest therein, except the right to use it as set forth in this Article 10. The Distributor agrees that it will not contest, challenge, or impair the Corporation’s (or the Corporation’s licensors’) right, title, or interest in the Trademarks, or represent that it has any ownership in or rights with respect to the Trademarks, either during or after the Term. All use of the Trademarks by Distributor shall inure to the benefit of and be on behalf of Corporation.
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10.4
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The Distributor shall notify the Corporation in writing of any infringement of the Trademarks in the Territory, of any applications or registrations for the Trademarks or marks similar to the Trademarks within the Territory, or of any suit or proceeding or action of unfair competition involving the Trademarks in the Territory, in each case promptly after it has notice thereof. The Corporation has the sole and exclusive right to pursue any claim of infringement of the Trademarks in the Territory reported under this Section, and will bear any costs associated with its action. The Distributor will cooperate with the Corporation to maintain the Corporation’s rights in the Trademarks.
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10.5
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Upon termination or expiration of this Agreement, all of the Distributor’s rights with respect to the Trademarks shall immediately cease, provided, however, that the Distributor may utilize the Trademarks to sell any XPEL branded Products remaining in inventory or otherwise delivered after such expiration or termination for a period of twelve (12) months from the date of termination.
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10.6
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Distributor shall not at any time, either during or subsequent to the term of this Agreement, register with any administrative entity or governmental body any trade name, trademark, trade dress, label, or design that is the same as, includes, or incorporates any of the Trademarks or any trade name, trade dress, label or design confusingly similar thereto. Additionally, Distributor shall not register any domain name that incorporates in whole or in part any of the Trademarks or any word that is confusingly similar to or a colorable imitation of any of the Trademarks. If the Distributor acquires or has previously acquired any rights to the Trademarks or any domain name as described above for any reason, it will undertake to promptly assign and transfer such Trademark or domain name to the Corporation immediately and without expense to the Corporation.
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10.7
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The Corporation represents and warrants to the Distributor that (i) it is the registered owner of the Trademarks and/or is the sole authorized licensee of such Trademarks in the Territory, pursuant to valid license agreements and (ii) it has the right, power and authority to enter into this Agreement and to grant to the Distributor the rights granted hereby.
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11.1
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Neither party hereto shall be liable to the other for delay in any performance or for the failure to render any performance under this Agreement when such delay or failure is a direct result of any present or future statute, law, ordinance, regulation, order, failure to deliver on the part of its suppliers, judgment or decree, act of God, earthquake, epidemic, explosion, lockout, boycott, strike, labor unrest, riot, war, or similar catastrophic occurrence (each, a “
Force Majeure Event
”).
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11.2
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In the event of any such delay or failure, the affected party shall send written notice of the delay or failure and the reason thereof to the other party within 14 calendar days from the time the affected party knew or should have known of the Force Majeure Event in question.
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11.3
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The provisions of this Article shall not be applicable to any obligation involving the payment of money.
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12.1
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Governing Law
. This Agreement and all sales and commission transactions pursuant hereto shall be governed by the laws of the State of Texas, USA but without reference to the choice of law provisions thereof. THE PARTIES AGREE THAT THE UNITED NATIONS
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12.2
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Jury Waiver and Submission to Jurisdiction
. Each party acknowledges and agrees that any controversy which may arise under this Agreement is likely to involve complicated and difficult issues and, therefore, each such party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby. The parties further agree that any legal suit, action or proceeding arising out of or related to this Agreement will be instituted in the state district courts of Bexar County, Texas, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
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12.3
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Notices
. Any notice, request, demand, waiver, consent, approval or other communication required to be given pursuant to this Agreement (each, a “
Notice
”) shall be in writing and shall be deemed given: (i) upon delivery, if by hand; (ii) after two (2) business days, if sent by express mail or air courier; or (iii) upon transmission, if sent by facsimile (provided that a confirmation copy is sent in the manner provided in clause (ii) of this Section 12.3 within thirty-six (36) hours after such transmission), except that if notice is received by facsimile after 5:00 p.m. on a business day at the place of receipt, it shall be effective as of the following business day. All Notices are to be given or made to the parties at the addresses appearing on the first page hereof, or to such other address as any party may designate by a Notice given in accordance with the provisions of this Section 12.3.
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12.4
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Entire Agreement; Amendment
. This Agreement, together with Exhibits hereto, contains the entire agreement and understanding of the parties hereto with respect to the matters herein set forth, and all prior negotiations and understandings relating to the subject matter of this Agreement are merged herein and are superseded and canceled by this Agreement. This Agreement may not be modified except in writing, signed by both of the parties hereto.
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12.5
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Waiver
. The failure by the Corporation to require the performance of any term of this Agreement or the waiver by the Corporation of any breach under this Agreement shall not operate or be construed as a waiver of any subsequent breach by the Distributor hereto.
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12.6
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Assignment
. Neither party shall assign its rights nor delegate the performance of its duties or other obligations under this Agreement, including any claims arising out of or connected with this Agreement, without the prior written consent of the other party. Any merger, consolidation or reorganization of the Corporation or Distributor will not be deemed an assignment requiring approval of the other party.
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12.7
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Severability
. In case any one or more provisions contained in this Agreement or any application thereof shall be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein and other applications thereof shall not in any way be affected or impaired thereby.
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12.8
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Counterparts
. This Agreement may be executed in one or more counterparts, each of which will be deemed an original but all of which together will constitute one and the same instrument.
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XPEL, INC.
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By:
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/s/ Ryan Pape
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Name: Ryan Pape
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Title: Chief Executive Officer
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Shanghai XingYing Trading Co., Ltd.
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By:
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/s/ Lifu Han
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Name: Lifu Han
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Title: President
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