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Exhibit 10(i)(a)(5)
EXECUTION COPY
AMENDING AGREEMENT
THIS AGREEMENT made the 1st day of February, 0000
X X X X X X X:
INFLO NORTH AMERICA LIMITED, a corporation organized
and existing under the laws of the Province of Ontario,
(hereinafter referred to as the "Vendor")
OF THE FIRST PART;
HEALTH XXXXXXX CORPORATION, a corporation organized
and existing under the laws of the State of Nevada,
(hereinafter referred to as the "Master Marketer")
OF THE SECOND PART.
WHEREAS:
(1) The Vendor's parent company, In-Flo Liquid Dispensing Corporation ("Inflo")
entered into a sales agreement with Diverse Products Incorporated ("Diverse")
dated May 5, 1995 (the "Sales Agreement") pursuant to which Inflo agreed to sell
to Diverse, for re-sale by Diverse, soft collapsible plastic bottles having the
characteristics and upon the terms identified in the Sales Agreement;
(2) With Inflo's consent, Diverse assigned its rights under the Sales Agreement
to the Master Marketer by assignment dated May 9, 1995;
(3) With the Master Marketer's consent, Inflo assigned its rights under the
Sales Agreement to the Vendor by assignment dated January 22, 1996; and
(4) The Vendor and the Master Marketer wish to amend the terms of the Sales
Agreement upon the terms set out in this Agreement.
NOW THEREFORE THIS AGREEMENT WITNESSES that for good and
valuable consideration (the receipt and sufficiency of which are hereby
acknowledged by each of the parties hereto) the parties make the agreements and
acknowledgments hereinafter set forth:
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ARTICLE 1
INTERPRETATION
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1.1 DEFINITIONS - Whenever used in this Agreement, unless there is something in
the subject matter or context inconsistent therewith, the following words and
terms shall have the respective meanings ascribed to them in the Sales
Agreement.
1.2 HEADINGS - The division of this Agreement into Articles and Sections and the
insertion of headings are for the convenience of reference only and shall not
affect the construction or interpretation of this Agreement.
1.3 NUMBER - In this Agreement and unless the context otherwise requires, words
importing the singular number only shall include the plural and vice versa,
words importing the neuter gender shall include the masculine and feminine
genders and vice versa and words importing persons shall include individuals,
partnerships, associations, trusts, unincorporated organizations and
corporations and vice versa.
ARTICLE 2
AMENDMENTS
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2.1 CORRECTION - The reference to paragraph 8.2(ii) in the second line of
paragraph 8.5 of the Sales Agreement was a typographical error and this
reference is hereby deleted and replaced with a reference to paragraph 8.2(i) of
the Sales Agreement.
2.2 PURCHASE AND SALE OF BOTTLES - MINIMUM COMMITMENTS - Subject to the terms
and conditions hereof, the Vendor and the Master Marketer agree to amend the
minimum purchase commitments set out in Schedule B of the Sales Agreement for
Contract Year 1, Contract Year 2 and Contract Year 3 as follows: Contract Year 1
Minimum - 2.5 million Bottles, Contract Year 2 Minimum - 10 million Bottles, and
Contract Year 3 - 50 million Bottles, and that the reference to 125 million
Bottles in paragraph 3.2 of the Sales Agreement is hereby replaced with a
reference to 62.5 million Bottles. In all other respects, paragraph 3.2 and
Schedule B to the Sales Agreement continue without further amendment.
2.3 MINIMUM ORDER QUANTITIES - The reference to 5 million Bottles in paragraph
3.3 of the Sales Agreement is hereby replaced with a reference to 2.5 million
Bottles, and in all other respects, paragraph 3.3 of the Sales Agreement
continues without further amendment.
2.4 PURCHASE PRICE - Schedule C of the Sales Agreement is deleted in its
entirety and replaced with the schedule which is attached hereto and labelled
"Schedule "C" AS AMENDED".
2.5 ADDITIONAL FEE - In consideration for the reduction in the minimum purchase
commitments of the Master Marketer provided by this agreement, the Master
Marketer shall pay an additional fee of US$100,000 to the Vendor, which fee
shall be non-refundable and shall not otherwise be credited to amounts due to
the Vendor by the Master Marketer in respect of
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purchases of Bottles. This fee shall be due and payable in full on the last day
of the first Contract Year, unless the Master Marketer has terminated this
Amending Agreement in accordance with paragraph 2.6 below.
2.6 REVERSION TO SALES AGREEMENT PROVISIONS. - In the event that the Master
Marketer placed purchase orders under the Sales Agreement for an aggregate of
not fewer than 5 million Bottles on or prior to the expiry of the first Contract
Year, and provided the Master Marketer has complied with the provisions of
paragraph 3.7 of the Sales Agreement in respect of such purchase orders, then
the Master Marketer may, at is sole option and without the consent of the
Vendor, notify the Vendor that it wishes to revert back to the original terms of
the Sales Agreement, and upon the delivery of such notice to the Vendor, the
provisions of paragraph 2.2 to 2.5 inclusive of this Amending Agreement shall be
deemed to have been terminated in their entirety. In such event, the Master
Marketer shall be given a credit of $0.02 per Bottle on the first 2.5 million
Bottles purchased in the first Contract Year, which credit shall be applied
against the purchase price payable in respect of the second 2.5 million Bottles
purchased in the first Contract Year. For greater certainty, the parties also
confirm that the additional fee payable in accordance with paragraph 2.5 above
shall not apply if the Master Marketer shall have placed purchase orders under
the Sales Agreement for an aggregate of not fewer than 5 million Bottles on or
prior to the expiry of the first Contract Year.
2.7 NO FURTHER AMENDMENTS. - Except as expressly amended by this Amending
Agreement, the Sales Agreement continues in full force and effect.
IN WITNESS WHEREOF the parties hereto have hereunto duly
executed this Agreement as of the day and year first above written.
INFLO NORTH AMERICA LIMITED
Per: /s/ X. XXXX
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Title President
HEALTH XXXXXXX CORPORATION
Per: /s/ X. X. XXXXX
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Title CEO
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SCHEDULE "C" AS AMENDED
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BOTTLE PRICING
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The base price for Bottles as at the date of the Agreement, subject to
adjustment as provided by the Agreement, and assuming they are ordered in lots
not smaller than 2,500,000 Bottles per purchase order shall be CDN$0.2746 per
Bottle, being the sum of (i) a manufacturing component of CDN$0.2246, which is
based on Dowlex resin made by DOW(Canada) (the "Manufacturing Component") and
(ii) a margin component to the Vendor of CDN$0.07 per Bottle (the "Margin
Component").
Bottle orders in excess of the minimum for each year will be available for
purchase at a price equal to the Manufacturing Component as quoted above, as
adjusted from time to time in accordance with the provisions of the Agreement
plus a Margin Component per Bottle that is variable based upon Bottle volumes as
follows:
Contract Year Volume in Excess of Minimum Margin Component, Per Bottle
1 From 2.5 million - 10 million @ $0.070
2 From 10 million - 50 million @ $0.050
3 From 50 million - 200 million @ $0.040
4 From 200 million - 400 million @ $0.0175
5 From 400 million and beyond @ $0.0150
Subsequent From Beyond 400 million @ $0.0150
Years
