EXHIBIT 10.4
FIRST AMENDMENT TO
EXCLUSIVE SUPPLY AND DISTRIBUTION AGREEMENT
THIS FIRST AMENDMENT TO EXCLUSIVE SUPPLY AND DISTRIBUTION AGREEMENT
(the "First Amendment") is made and entered into effective as of the ___ day of
April, 2006, by and between AUTOMOTIVE ENERGY SYSTEMS, LLC, a California limited
liability company ("Supplier"), and PORTAGY CORP., a Delaware corporation
("Distributor").
WITNESSETH:
WHEREAS, Supplier and Distributor entered into that certain Exclusive
Supply and Distribution Agreement made and entered into as of December 13, 2005
(the "Agreement"); and
WHEREAS, Supplier and Distribute desire to amend the Agreement as
hereinafter provided.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. RECITATIONS. Supplier and Distributor acknowledge and agree that the
recitations set forth above are true and correct and are incorporated herein by
reference.
2. AGREEMENT BEING AMENDED. The agreement being amended by this First
Amendment is that certain Exclusive Supply and Distribution Agreement dated
effective as of December 13, 2005 (the "Effective Date") entered into by and
between Supplier and Distributor, which is incorporated herein by reference.
3. AMENDMENTS. The Agreement is hereby amended as follows:
A. Distributor shall pay Supplier $166,250 on or before April
10, 2006 for the first 25,000 units of Product ordered by Distributor.
B. Distributor shall order a minimum of 10,000 units of
Product by issuing Supplier a written purchase order by April 11, 2006, for
delivery within sixty (60) days after receipt by Supplier of such purchase
order.
C. Exhibit "A". Exhibit "A" of the Agreement shall be replaced
with Exhibit "A" attached hereto.
D. Exhibit "C". Exhibit "C" of the Agreement shall be replaced
with Exhibit "C" attached hereto.
E. Section 1.B.ii. Section 1.B.ii of the Agreement shall be
deleted in its entirety.
F. Section 1.E.iii. Section 1.E.iii of the Agreement shall be
deleted in its entirety and the following inserted in lieu thereof:
iii. $200,000 shall be paid as follows: $2.00 from
the sales proceeds from each unit of Product sold by
Distributor shall be paid to Supplier within fifteen (15) days
from the date Distributor receives payment from the sale of
the Products.
G. Section 2.B. Section 2.B of the Agreement shall be deleted
in its entirety and the following inserted in lieu thereof:
B. Subject to Section 2.C, the prices for the
Products are set forth on Exhibit "C". In the event of a price
change, Supplier shall provide notice to Distributor setting
forth the new price and the date such price change shall go
into effect. If the price change is a price increase, the
effective date of the price increase shall be no earlier than
ninety (90) days from the date of receipt by Distributor of
Supplier's notice of the price increase.
H. Section 16. The address of the Distributor set forth in
Section 16 shall be amended as follows:
Portagy Corp.
00000 Xxxxxxx Xxxx.
Xxxxx 000
Xxxxxxxx Xxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
with a copy to: Xxxxxx Xxxxxx LLP
0000 Xxxx Xxxxx Xxxxx Xxxx.
Xxxxx 000
Xxxx Xxxx Xxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx, Esq.
4. CONTINUANCE OF AGREEMENT. Except as specifically modified pursuant
to this First Amendment, the Agreement shall remain in full force and effect.
[Signature on Next Page]
-2-
IN WITNESS WHEREOF, Distributor and Supplier have executed this First
Amendment effective as of the day and year set forth above.
DISTRIBUTOR:
PORTAGY CORP., a Delaware corporation
By:______________________________________________
Xxxxxxx Xxxxxx, Its Chief Executive Officer
SUPPLIER:
AUTOMOTIVE ENERGY SYSTEMS, LLC, a
California limited liability company
By:_______________________________________
Xxxx Xxxxxxx, Its Manager
By:_______________________________________
Xxxxxxx Xxxxxxx, Its Member
-3-
EXHIBIT "A"
PRODUCTS
The Products shall include the AES Porta Jump product line and any new or
updated versions thereof.
-4-
EXHIBIT "C"
PRICES
The initial prices for the Products are as follows:
i. For single use products: $7.00 USD
ii. For rechargeable products: $12.00 USD
-5-
