AGREEMENT OF AMENDMENT
This Agreement of Amendment ("Amendment") made and entered into as of
this 18th day of April, 2002 by and between Xxxxxxx Xxxxxxx, an individual
residing at Morassistr 2 A., 80469 Munchen ("Xxxxxxx") and Oxywell GmbH & Co.
Sauerstofftechnik KG located at Xxxxxxxxx-Xxxxx-Xxxxxxx 00, 00000 Xxxxxxxxxxx
("Oxywell").
RECITALS
WHEREAS, effective as of October 1, 2001, Xxxxxxx and Oxywell entered into
an agreement entitled "Independent Representation Contract" ("Agreement")
pursuant to which Xxxxxxx was granted the exclusive right to market and sell a
system for processing and enriching water with oxygen (the "Oxywell Products" or
"Oxywell System") in the United States, Puerto Rico and Canada and a right of
first refusal to market and sell the Oxywell System in Mexico subject to the
terms and conditions set forth in the Agreement; and
WHEREAS, Xxxxxxx and Oxywell desire to amend the Agreement in certain
particulars to better express the present intent of the parties and to otherwise
reaffirm the Agreement;
NOW THEREFORE, in consideration of the mutual covenants, agreements and
representations herein contained, and intending to be legally bound, the parties
agree as follows:
1. Xxxxxxx and Oxywell agree that Para. 4 of ss. 1 of the Agreement shall be
amended so that, as amended it shall read in its entirety as follows:
" 4. XXXXXXX has the right to transfer all of his rights and obligations
under this contract to a legal entity without limitation so long as such entity
is not a competitor of Oxywell or the Oxywell products. In the event that
Xxxxxxx transfers his rights and obligations under this contract to an entity in
which he holds an interest (the "Xxxxxxx Company"), the parties agree as
follows:
If a competitor of Oxywell or the Oxywell products offers to purchase all or
some of Xxxxxxx'x interest in the Xxxxxxx Company, Xxxxxxx shall notify Oxywell
in writing within three business days of the offer, including the terms and
conditions thereof and Oxywell shall have sixty (60) days from receipt of the
notice within which to exercise its right of first refusal to purchase the
interest on the same terms and conditions being offered by the competitor. If
Oxywell exercises its right, then Xxxxxxx shall sell the interest to Oxywell
within thirty (30) days of Oxywell's notice to Xxxxxxx of the exercise of its
right."
2. Xxxxxxx and Oxywell further agree that the third subparagraph of Para. 3 of
ss. 11 of the Agreement shall be amended so that, as amended it shall read in
its entirety as follows:
"- any direct or indirect participation of competitors (ss. 7, Para. 2,
sentence 2) of Oxywell in the independent representative's business or in an
entity in which Xxxxxxx holds an interest and to which he has transferred his
rights and obligations under this contract except as provided in ss. 1, Para. 4
of this contract."
3. Xxxxxxx and Oxywell further agree that for the purposes of ss. 5, Para. 1 of
the Agreement, the initial period for calculating minimum sales volume shall be
from December 1 through February 28, 2003 rather than until August 31, 2002 as
originally provided in the Agreement. Concurrently, the next successive period
in ss. 5, Para. 1 of the Agreement shall be from March 1, 2003 through November
30, 2003 rather than from September 1, 2002 through August 31, 2003 as
originally provided in the Agreement.
4. With the exception of the foregoing amendments, Xxxxxxx and Oxywell hereby
reaffirm and readopt the Agreement as executed by them.
IN WITNESS WHEREOF the parties hereto have caused this Amendment to be
duly executed on the date first above written.
XXXXXXX XXXXXXX
_____________/S/_________________________
OXYWELL GMBH & CO
______________/S/_________________________
By:
Its: