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Exhibit No. 5
Ozolutions, Inc.
Form 10-SB
ASSIGNMENT OF CONTRACT
This Agreement is made as of the 1st day of June, 2000
BETWEEN:
XXXXXX ATLAS OZNE SYSTEMS LIMITED
A Corporation incorporated pursuant
to the Laws of Canada having its
offices located at 000 Xxxxxxxx
Xxxxxx, Xxxx 00, Xxxxxxx, Xxxxxxx.
X0X 0X0
(hereinafter called "Xxxxxx")
OF THE FIRST PART
- and -
1421209 ONTARIO LIMITED, a
Corporation incorporated pursuant
to the laws of the Province of
Ontario
(hereinafter called "Ontario")
OF THE SECOND PART
and -
OZOLUTIONS INC., a Corporation
incorporated pursuant to the laws
of the State of Delaware
(hereinafter called "Ozolutions")
OF THE THIRD PART
WHEREAS
A By an Agreement in writing dated as of the I " day of
April, 2000, Xxxxxx appointed Deans as Trustee as its
marketing representative in and respect of those countries
located in or bordering on the Caribbean Ocean with the exception
of Mexico and the Island of Cuba for the Products as set out
therein. A copy of this Contract is attached hereto as Schedule
"A" and is referred to as the "Representative Contract";
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X. Xxxxx wishes to assign the Representative Contract to
Ontario, of which all of the shares are beneficially owned by
Deans and his family.
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration
of the respective covenants and agreements of the parties
contained herein, the sum of One ($ 1.00) Dollar paid by Deans as
Trustee to Xxxxxx and other good and valuable consideration, (the
receipt and sufficiency of which is hereby acknowledged by the
parties hereto), it is agreed as follows:
1.. Deans as Trustee hereby assigns to Ontario, Deans'
interest in the Representative
Contract and all benefits to be derived therefrom subject to the
observance and performance of the covenants, provisos, and
consideration on the part of Deans as Trustee contained herein
2. Xxxxxx hereby consents to the assignment on the terms
set out herein;
3. This Agreement shall enure to the benefit of and be
binding upon -the parties and
their respective successors and assigns;
4. This Agreement shall be governed by and construed in
accordance with the laws
of the Province of Ontario and the laws of Canada, applicable
therein;
5. The parties hereto agree that this Agreement may be
transmitted by facsimile or
such similar device and that the reproduction of signatures by
facsimile or such similar device will be treated as binding as if
originals and each party hereto undertakes to provide each and
every other party hereto with a copy of the Agreement bearing
original signatures forthwith upon demand.
IN WITNESS WHEREOF the parties of the First and Third Part have
set their hands as attested by the signature of their duly
authorized officer, and the Party of the Second Part has set his
hand and seal, all the day and year first mentioned above.
SIGNED, SEALED AND DELIVERED XXXXXX ATLAS OZNE
In the Presence of SYSTEM LIMITED
/s/
Authorized Signing Officer
/s/ Xxxxxx Xxxxx Xxxxx
As Trustee
1421209 ONTARIO LIMITED
Per:
/s/
Authorized Signing Officer
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SCHEDULE "B"
ASSIGNMENT OF CONTRACT
This Agreement is made as of the 1st day of June, 2000
BETWEEN:
XXXXXX ATLAS OZNE SYSTEMS LIMITED
A Corporation incorporated pursuant to
the Laws of Canada having its offices
located at 000 Xxxxxxxx Xxxxxx, Xxxx 00,
Xxxxxxx, Xxxxxxx. M I H 3A6
(hereinafter called "Xxxxxx")
OF THE FIRST PART
- and -
XXXXXX XXXXX DEANS, of the City of
Toronto, in the Province of Ontario
(hereinafter called "Deans as Trustee".)
OF THE SECOND PART
- and -
1421209 ONTARIO LIMITED, a Corporation
incorporated pursuant to the laws of the
Province of Ontario
(hereinafter called "Ontario")
OF THE THIRD PART
WHEREAS
A. By an Agreement in writing dated as of the I " day of April,
2000, Xxxxxx appointed Deans as Trustee as its exclusive
marketing representative in and respect of those countries
located in or bordering on the Caribbean Ocean with the exception
of Mexico and the Island of Cuba for the Products as set out
therein. A copy of this Contract is attached hereto as Schedule
"A" and is referred to as the "Representative Contract"
X. Xxxxx wishes to assign the Representative Contract to
Ontario, of which all of the shares are beneficially owned by
Deans and his family.
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NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration
of the respective covenants and agreements of the parties
contained herein, the sum of One ($1.00) Dollar paid by Deans as
Trustee to Xxxxxx and other good and valuable consideration, (the
receipt and sufficiency of which is hereby acknowledged by the
parties hereto), it is agreed as follows:
1. Deans as Trustee hereby assigns to Ontario, Deans' interest
in the Representative
Contract and all benefits to be derived thereftom subject to the
observance and performance of the covenants, provisos, and
consideration on the part of Deans as Trustee contained herein
2. Xxxxxx hereby consents to the assignment on the terms set
out herein;
3. This Agreement shall enure to the benefit of and be binding
upon the parties and their respective successors and assigns;
4. This Agreement shall be governed by and construed in
accordance with the laws of the Province of Ontario and the laws
of Canada, applicable therein;
5. The parties hereto agree that this Agreement may be
transmitted by facsimile or such similar device and that the
reproduction of signatures by facsimile or such similar device
will be treated as binding as if originals and each party hereto
undertakes to provide each and every other party hereto with a
copy of the Agreement bearing original signatures forthwith upon
demand.
IN WITNESS WHEREOF the parties of t he First and Third Part have
set their hands as attested by the signature of their duly
authorized officer, and the Party of the Second Part has set his
hand and seal, all the day and year first mentioned above.
SIGNED, SEALED AND DELIVERED XXXXXX ATLAS OZNE
In the Presence of SYSTEM LIMITED
/s/ Authorized Signing Officer
/s/
/s/ Xxxxxx Xxxxx Xxxxx
As Trustee
1421209 ONTARIO LIMITED
Per:
/s/
Authorized Signing Officer
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SCHEDULE "A"
THIS AGREEMENT is made as of the 1st day of April, 2000
BETWEEN:
Xxxxxx Atlas Ozone Systems Limited of 000 Xxxxxxxx Xxxxxx, Xxxx #
00, Xxxxxxx, Xxxxxxx M I H 3A6, a company incorporated under the
laws of Canada ("Xxxxxx") and Xxxxxx Xxxxx Xxxxx, as a Trustee
for a Ontario corporation to be incorporated, of 000 Xxxxxxxx
Xxxx, Xxxxx 00, Xxxxxxx, Xxxxxxx Xxxxxx (the "Representative")
1. APPOINTMENT
1.1. Xxxxxx hereby appoints the Representative as its exclusive
marketing representative in and in respect of those countries
located in or bordering on the Caribbean Ocean with the exception
of Mexico and the Island of Cuba ("xxx Xxxxxxxxx") for the
solicitation of Invitations to tender and of orders for Products
for all market sectors in the Territory.
1.2. For the purposes of this Agreement, "Products" shall mean
Ozone Generating Equipment, Systems and accessories as offered by
Xxxxxx as at the Effective Date of this Agreement, together with
any other environmental systems or products which may in future
be offered by Xxxxxx and which there may be added by addendum to
this agreement but specifically excludes analyses, test reports,
engineering studies, feasibility reports, pilot studies, pilot
equipment rentals, spas, cooling towers, medical ozone
applications, pulp and paper plants, spare paris and service,
inspections and inspection reports, test work, design and/or
consultancy services.
1.3. The Representative accepts such appointment subject to and
in accordance with the provisions of this Agreement.
2. DURATION OF AGREEMENT AND TERMINATION
2.1. This agreement shall commence on the date hereof and subject
to clause 2.2 hereof shall remain in effect for Three (3) years
and shall be renewable for Two (2) further periods of Three (3)
Years, PROVIDED THAT if Xxxxxx receives an order for the
provision of any Products for sale in the Territory, prior to the
date hereof, it is acknowledged that such sale(s) were developed
by Representative who shall be entitled to be paid a commission
in respect of those sales as though they had been made during the
ten-n of this Agreement.
2.2. Either party may by notice in writing terminate this
agreement without compensation or liability to the other if the
other shall:
2.2.1. enter into bankruptcy, receivership, liquidation or any
similar status or situation (except for the purpose of
reconstruction) or make any composition with its creditors or
have a receiver appointed over the whole or any substantial part
of its assets or
2.2.2. commit any breach of any of clauses 3.6, 4; 6.3 or 7 of
this agreement or
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2.2.3. fail to remedy any other breach of this agreement
following receipt of a notice in writing requiring the same to be
remedied within a reasonable time.
3. DUTIES OF REPRESENTATIVE
3. 1. The Representative shall use his best efforts to solicit
orders for the sale of the Products in the Territory and as part
of such efforts shall promote the sales of the Products with
Government, Industry, Consultants, Contractor, Sub-Contractors
and owners of projects within such Territory.
3.2. The Representative shall use his best endeavors to procure
and facilitate the placing of orders with Xxxxxx at the prices
quoted by Xxxxxx.
3.3. The Representative shall maintain an effective organization
in the Territory with such personnel as may be necessary to
achieve maximum sales of the Products. Representative may, at his
option but always with the approval of Xxxxxx, (such approval not
to be unreasonably withheld), appoint sub-representatives in the
Territory.
3.4. The Representative shall pay all of his own expenses in
connection with his activities under this agreement.
3.5. Without prejudice of the generality of the foregoing, the
Representative shall:
3.5.1. publicize the Products in the Territory
3.5.2. canvass and approach Clients, Architects, Engineers and
other Consultants with a view to procuring the specification of
Xxxxxx'x Products
3.5.3. liaise with Contractors and Owners to obtain invitations
to tender and purchase orders in favour of Xxxxxx and
3.5.4. (both before and after the placing of an order with
Xxxxxx) maintain contact and liaison with purchasers on behalf of
Xxxxxx
3.6. The Representative shall comply with all relevant local laws
and regulations.
4. STATUS AND AUTHORITY OF REPRESENTATIVE
4. 1. The Representative is not an employee of Xxxxxx in any
respect whatsoever and shall not represent himself to be such an
employee.
4.2. The Representative is not granted any right, power or
authority to enter into contracts or assume any obligations,
liabilities or expenses on behalf of Xxxxxx or to accept any
summons or other legal process on behalf of Xxxxxx and shall not
hold himself out as having any such authority.
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4.3. The Representative shall not at anytime during the currency
of this Agreement, represent or put for sale or sell directly or
indirectly any products competitive with Xxxxxx'x products
without the prior written consent of Xxxxxx.
5. COMMISSIONS
5.1.Xxxxxx shall pay to the Representative in respect of each and
every order placed with Xxxxxx by a Purchaser in the Territory or
to a Purchaser who receives the goods outside the Territory for
delivery in the Territory, a commission calculated in accordance
with the Schedule "A" to this Agreement.
5.2. In the case of an order for the Free On Board sale of goods
or equipment by Xxxxxx, such commission shall be computed from
the FOB sales price of such products less any taxes, duties,
freight royalties or license fees.
5.3. Where Xxxxxx supplies goods and provides field erection
and/or start up or testing supervision, the cost or price of such
field erection start up or testing supervision shall be deducted
from the order value in calculating the Representative's
commission.
5.4. Where Products are sold on an erected and installed basis,
the Representative's commission shall be based on the overall
contract price.
5.5. In the event that any supplement, variation or novation
shall increase the contract price or order value, such increase
shall be taken into account in calculating the commission payable
to the Representative.
5.6. In the event that the contract price or order value shall be
reduced by way of variation, novation or breach resulting in the
omission of the whole or any part of Xxxxxx'x scope of Nvork or
of supply under any such contract or order, the commission
payable to the Representative shall be reduced accordingly.
5.7. Payment to the Representative shall fall due 15 days after
payment to Xxxxxx by its customer in respect of each relevant
project or order.
5.8. No payment shall fall due to the Representative in respect
of any work which does not directly result in an order placed
with Xxxxxx or in respect of any project for which Xxxxxx does
not ultimately receive payment from its customer.
5.9. Following the termination of this Agreement (unless the same
shall have been terminated by Xxxxxx in accordance with clause
2.2 hereof,) Xxxxxx shall pay to the Representative in respect of
any order placed with Xxxxxx after such termination but resulting
directly from the activities of the Representative prior to such
termination, a commission in accordance with this clause 5 but
reduced by One (1/3) Third for every complete calendar month
between the date of such termination and the receipt by Xxxxxx of
the relevant order.
6. DOCUMENTATION
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6.1. The Representative shall promptly and regularly report to
Xxxxxx concerning his activities with respect to the Products in
the Territory including lists of prospective customers, analysis
of lost jobs, whether a project is cancelled or lost to a
competitor, the Representative's promotion activities, the status
of pending inquiries, market forecasts, activities of
competitors, copies of all correspondences between the
Representative and customers or potential customers and such
other information as Xxxxxx may reasonably request.
6.2. Xxxxxx shall furnish the Representative with samples of its
advertising material, information and assistance with regard to
equipment selection, size and pricing and such other technical
information as Xxxxxx deems necessary to enable Representative to
fulfill his obligations. Also literature and information shall
remain the property of Xxxxxx, shall be kept confidential by the
Representative and shall be returned to Xxxxxx upon the
termination of this Agreement.
6.3. The Representative shall not disclose any of Xxxxxx'x
confidential information to third parties except in furtherance
of this Agreement and then only with die express prior written
consent of Xxxxxx.
7. ASSIGNMENT
7.1. Neither party shall assign this Agreement to any third party
in whole or in part without tile prior written consent of the
other; save that Representative may assign this Agreement, with
tile consent of Xxxxxx which shall not be unreasonably withheld,
to an Ontario Corporation of which all outstanding shares are
beneficially owned by Representative.
8. PRODUCTS
8. 1. At any time during tile currency of this Agreement, Xxxxxx
may discontinue or modify any of the Products covered by this
Agreement without breaching this Agreement and without incurring
any liability or obligation to the Representative.
9. RESOLUTION OF DISPUTES
9.1. Any dispute arising between the parties under or -in
connection with this Agreement shall be referred to the
determination of a single Arbitrator to be agreed between the
parties or in default of agreement, to be appointed by a Judge of
the Superior Court of the Province of Ontario;
9.2. Such Arbitration shall be governed by the laws of the
Province of Ontario and in particular by tile Arbitration Act
S.O. or any statutory modification or re-enactment
thereof and the seat of Arbitration shall be Toronto, Ontario.
10. MISCELLANEOUS
10.1. This agreement shall be governed by and interpreted in
accordance with the laws of Ontario
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10.2. This agreement embodies the entire Agreement and
understanding of the parties and supersedes any previous
agreements, representations or understandings related hereto.
10.3. No modification of this Agreement shall have any force
or effect unless made in writing and signed by both parties.
IN WITNESS whereof the parties have executed this Agreement
the day and year first written above as attested by their duly
authorized officers.
SIGNED, SEALED AND DELIVERED XXXXXX ATLAS OZONE SYSTEMS LIMITED
Per:
/s/ Authorized Signing Officer
/s/
/s/ Xxxxxx Xxxxx Xxxxx,
Trustee for an Ontario Corporation
To be incorporated.
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SCHEDULE "A"
Commission Contract Dollar Commission Cumulative
Rate Value Interval
10.0% *First $100,000.00 $10,000.00 $10,000.00
7.5% Next $ 100,000.00 7,500.00 $17,500.00
6.0% Next $300,000.00 18,000.00 $35,500.00
2.0% Next $500,000.00 10,000.00 $45,500.00
1.0% On Balance
*All payments converted to Canadian Dollars from currency of
contract.
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