AMENDMENT TO AGREEMENT
This Amendment to Agreement (the "Amendment") is effective as of
October 2, 1997, and is by and between NOHIV, INC., (formerly known as BONITO
INDUSTRIES, INC.) a Nevada corporation (hereinafter the "Company"), and
EURO-AMERICAN GMBH LABOSERVE GMBH, corporations organized under the laws of
German, (hereinafter jointly called "Seller and amends and modifies that certain
Agreement between the parties dated August 21, 1997, as follows:
1. The original agreement and plan of reorganization as filed as part
of the Current Report on Form 8-K on August 27, 1997, erroneously classified the
acquisition by the Company from Euro-American GMBH, of that certain License
Distribution Agreement by an between Pace Corp. (Licensor) and Laboserv
(Licensee) dated June 23, 1997, as a reorganization and the acquisition of all
of the outstanding common stock of Sellers.
Euro-American GMBH had previously entered into a Distribution Agreement
with LaboServ wherein Euro-American acquired the distribution rights for the
sale of Laboserv's HIV-Logic Test within Eastern and Western Europe including
Russia. Euro-American paid a purchase price of $600,000 for said distribution
rights. Therefore, as of August 21, 1997, Euro-American held the distribution
rights to Laboserv's HIV-Logic Test in the territories set forth above.
Euro-American GMBH, as the owner of these distribution rights under the
Distribution Agreement sold and transferred all its, right, title and interest
under said Distribution Agreement to the Company in exchange for 3,000,000
shares of Common Stock, $0.001 Par Value of the Company. A copy of the
Distribution Agreement is attached hereto as Exhibit 1.
2. The acquisition of the rights under that certain Distribution
Agreement for 3,000,000 shares of the Company's Common Stock should have been
reported as an acquisition of an asset and not a reorganization and acquisition
of all of the outstanding stock of Sellers.
3. All other terms and conditions not inconsistent with this amendment
shall remain the same.
4. It is expressly agreed that the parties may execute this agreement
via facsimile signature and such facsimile signature pages shall be treated as
originals for all purposes.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be
duly executed all as of the day and year first above written.
THE COMPANY SELLER
NOHIV INC.
formerly BONITO INDUSTRIES, INC. EURO-AMERICAN GMBH
--------------------------------- --------------------------------------
By: Xxxxxxxx Xxxxxxxxxx By: Xxxx X. Xxxxxxxx
Its: Vice President Its: Vice President
EXHIBIT 1 TO AMENDMENT TO AGREEMENT
------------------------------------
DlSTRIBUTION
AGREEMENT
Between
EURO-AMERICAN, Beteiligungsvermittlungsgesellschaft mbH, Xxxxxxx Xxx. 00-00,
00000 Xxxxxxx/Xxxx, Xxxxxxx; hereinafter referred to as EURO-AMERICAN -
and
Laboserv GmbH, Xx Xxxxx 00-00, 00000 Xxxxxxxxxxx, Xxxxxxx hereinafter referred
to as Laboserv-
Appointment
(1) Laboserv hereby appoints EURO-AMERICAN as it's sole and exclusive
distributor for the sale of its HlV-Logic Test (hereinafter referred to as
Product) within the territory defined herein. The distribution rights may be
reassigned by EURO-AMERICAN to third parties.
(2) EURO-AMERICAN agrees to pay today, upon signing of this document DM
179,000 and agrees to make further payments up to a total of USD 200,000 by the
end of July, 1997. Further, EURO-AMERICAN commits to pay Laboserv another USD
400,000 by the end of September, 1997
(3) Laboserv shall sell directly to EURO-AMERICAN or it's assignees but may
ship to locations specified by EURO-AMERICAN. Each order shall be for at least
50,000 tests.
(4) EURO-AMERICAN shall not act as an agent of Laboserv or make any
representations on behalf of Laboserv.
(5) Laboserv reserves the right to make changes to the product, but
guarantees that these will always be improvements and further guarantees that
all such improvements will be in product sold to EURO-AMERICAN.
(6) EURO-AMERICAN shall not sell the product outside the territory, as
defined, unless EURO-AMERICAN has the written permission of Laboserv.
(7) During the term of this Agreement EURO-AMERICAN and its assignees shall
have the rights to sell other HIV tests also.
(8) Laboserv warrants that it has the authority to make this appointment
and further warrants that it has no knowledge of any impediments to this action.
Page 1
Territory
The territory shall include all of the countries nominally referred to as
Eastern Europe and Western Europe and shall also include Russia.
Trademark
(1) EURO-AMERICAN shall have the right use the trademark "HIV-Logic Test"
within the territory.
(2) EURO-AMERICAN shall indemnify Laboserv against any and all legal
challenges arising out of the use of this trademark.
(3) EURO-AMERICAN may also register other trademarks for the Product and
shall indemnify Laboserv against any and all legal costs arising out of these
trademarks. Upon termination of this Agreement all new Trademarks shall remain
the property of EURO-AMERICAN.
Patents
Laboserv warrants that the Product is covered by US and European patents
and shall indemnify EURO-AMERICAN against any and all legal challenges to these
patents.
Delivery
Laboserv warrants that it can deliver at least 250,000 tests per month and
that deliveries shall be made within four (4) to six (6) weeks after receipt of
an order by EURO-AMERICAN.
Pricing and Payment
See appendix A attached.
Warranties
(1) Laboserv warrants that the product shall be free from all defects in
materials and workmanship and shall be fit for the purpose for which it was
designed. No other claims are made.
(2) EURO-AMERICAN warrants that it shall hold Laboserv harmless from any
and all claims arising out of any actions initiated by EURO-AMERICAN.
Duration
(1) The Agreement shall become effective on the date of signature by both
parties and shall remain in effect for a period of two (2) years with an option
to renew for a further two (2) years. If either side does not wish to renew the
Agreement, then at least 30 days notice in writing shall be given to the other
party prior to its expiry.
Page 2
(2) If sales, at the end of 1998, are less than 500,000 tests, then
Laboserv reserves the right to renegotiate this Agreement.
(3) Minimum sales to retain exclusivity shall be negotiated during the
fourth calendar quarter of each year.
Renunciation
The non-compliance of either of the parties at any time with one of the
clauses of this Agreement, or the failure to exercise any right provided for in
this Agreement, or the failure at any time to demand the performance of the
other party in respect of this agreement or any of the provisions, will not
under any circumstances affect the validity of this Agreement nor the right of
the other party to ensure compliance with it's provisions. The renunciation of a
provision, condition or requirement of this Agreement, on one or more occasions,
by either of the parties, will not constitute a renunciation of any future
obligation to fulfill said provision, condition or requirement with respect to
this Agreement.
Default
If either party shall fail to perform or defaults in the performance or
non-performance of any material provision of this Agreement, and if such failure
or default shall continue for ninety (90) days after written notice thereof to
the defaulting party, during which time the parties cooperate in good faith to
solve the situation, then the non-defaulting party may terminate this Agreement
forthwith on notice to the other party.
Force Majeure
No liability shall result to either party from delays in performance caused
by circumstances beyond the control of the party affected, including, but not
limited to acts of God, fire, flood, explosion, war, or actions or request by
government authority.
Confidentiality
During the term of this Agreement, Laboserv and EURO-AMERICAN shall treat
all confidential information received from the other party as the exclusive
property of the other party and each party agrees not to disclose or use any
such information to any third party without first obtaining the other party's
consent.
Notice
Any notice or communication authorized or required to be given hereunder or
for the purpose hereof shall be duly given if sent by prepaid registered mail
and sent to the registered office of the other party hereto.
Page 3
Governing Law
(1) This Agreement shall be construed under the laws of Germany.
(2) Any dispute, controversy or claim arising out of, or relating to this
Agreement, or the termination or validity thereof shall be settled through bona
fide negotiations between the parties, but should the parties be unable to
resolve such disputes then the matter shall be referred to arbitration in
accordance with the International Rules of Conciliation and Arbitration of the
Zurich Chamber of Commerce.
(3) Should no acceptable remedies from this process evolve, the matter
shall proceed to litigation in Germany.
(4) All stipulations contained in this Agreement shall be so construed as
not to infringe the provisions of any laws; but if any such stipulation does
infringe the provision of any law the same shall be deemed to be void and
severable. In such event, invalid stipulations shall be suitably amended to
maintain the economic intentions of the parties hereto.
(5) Modifications of and amendments to this Agreement shall become
effective only after written instruments to that extent have been duly executed
by both parties.
In witness whereof, the parties have caused this Agreement to be executed by
their duly authorized representatives.
Staufenberg, July 16th, 1997
Laboserv GmbH Euro-American Gmbh
-------------------------------- ------------------------------------
Xxxxxxx Xxxxxx, President Xxxx X. Xxxxxxxx, Vice President
Page 4
Schedule A
Pricing Schedule
1. Minimum Order
(incl. Start-up cost for market entry) 6,00 US-$ per test
2. 100,001 - 200,000 3,25 US-$ per test
3. 200,001 - 300,000 3,00 US-$ per test
4. 300,001 - 400,000 2,75 US-$ per test
5. 400,001 - and above 2,50 US-$ per test
Payment shall be COD, upon release of the merchandise by the local customs
officers at the place of delivery.
