TRANSLATION FOR CONVENIENCE ONLY – NOT LEGALLY BINDING
EXHIBIT
10.8
TRANSLATION
FOR CONVENIENCE ONLY – NOT
LEGALLY
BINDING
TRANSLATION
MANUFACTURING
SUB-CONTRACT
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BY
AND BETWEEN :
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SOCIÉTÉ
SOFABO,
a
limited corporation with a share capital of 8,872,500 FRF, having
its head
office at Xx Xxxxx sur Xxx (85000) 25 de l’Industrie Blvd., registered at
the Business and Corporation Registry of Xx Xxxxx sur Yon under
number
302 135 656, represented by Xx. Xxxxx Xxxxxxxx, President of the
Board of Directors.
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Hereinafter
referred to as “SOFABO”
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AND:
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WATER BANK
OF AMERICA INC.,
a
legal entity, duly incorporated pursuant to the Canada Business
Corporations Act, having its head office at 100, des Sommets Avenue,
Suite
1603, Nuns Island, Quebec, Xxxxxx, X0X 0X0.
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Hereinafter
referred to as “WBOA”
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Hereinafter
collectively referred to as “THE
PARTIES”
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PREAMBLE:
THE
PARTIES HERETO DECLARE THE FOLLOWING:
WHEREAS
on February 26, 2001, SOFABO entered into and concluded a Manufacturing
Sub-Contract with Ice Rocks (hereinafter referred to as “IR”), copy of which is
attached to the present Agreement as Schedule “A” (hereinafter referred to as
the “Contract”);
WHEREAS
on April 8, 2004, WBOA acquired all of the assets of IR, including a complete
unit for the production of spring water ice cubes, which unit is defined
and
referred to in the Contract as the Machine;
WHEREAS
Section 2.12 of the Contract stipulates that said Contract was negotiated
and
concluded on an intuitu
personae basis
and
as such, is not assignable to any third party without the prior consent of
the
other party;
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WHEREAS
by entering into the present Agreement, the parties are now desirous to confirm
their consent with respect to the conclusion of a Manufacturing Sub-Contract
(hereinafter referred to as the “Agreement”) according to the same terms and
conditions stipulated in the Contract, save and except as modified
hereinunder;
THE
PARTIES HERETO COVENANT AND AGREE AS FOLLOWS:
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1.
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PREAMBLE
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| 1.1 |
The
preamble constitutes an integral part hereof as if recited herein
at
length;
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2.
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AMENDMENTS
TO THE CONTRACT
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2.1
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All
mentions of IR and/or of the Ordering Party in the Contract shall
be
replaced by WBOA;
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2.2
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Considering
that the Machine has been reinstalled by SOFABO, at no cost for
WBOA, and
that the personnel of La SOFABO has already received the proper
training
as to the functioning and usage of the Machine, Sections 1.0, 1.1
and 1.2
shall be modified mutatis
mutandis;
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2.3
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Section
2.0.0 is modified as follows:
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“According
to the conditions of the present Agreement, the sub-contractor - Société Sofabo
undertakes to manufacture exclusively in favour of the Ordering Party - WBOA
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and deliver to it the contractual products pursuant to the manufacturing
protocol, the technical specifications and the trials associated therewith
(Schedule 2).
For
the duration of the contract, as stipulated in Section 2.10.1 (as amended
by
Section 2.8 hereunder, for a period of 5 years from the date of the signature
of
the present Agreement), or until the termination of the present Agreement
in
conformity with Section 2.10.1 of the Contract (as amended by Section 2.9
hereunder), the Ordering Party reciprocally undertakes not to enter into
or
conclude any similar agreements to the present Agreement for the same
conditioning and treatment of water into secured spring water ice cubes in
the
territory of France.”
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2.4
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Section
2.1.5 is modified as follows:
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“The
orders of re-assortment of usable substances (dry substances) shall be placed
by
the sub-contractor to the distributors; the
sub-contractor shall therefore remit to the Ordering Party, at the end of
each
month, a prior estimation of the stocks that it plans to order for the following
month.”
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2.5
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Section
2.3.0 is modified in such way that Schedule 5 which said section
refers to
shall be replaced by Schedule “B” of the present Agreement and the date of
August 31, 2001 shall be modified and replaced by November 30,
2004.
Furthermore it is agreed that as and from November 30, 2004, and
every 6
months thereafter, the parties shall re-evaluate prices listed
in Schedule
“B” in increase or in decrease, by taking into consideration the volumes
produced or the related necessary cost for the manufacturing of
the
products (i.e., secured spring water ice cubes). In the event that
WBOA
was to receive a written offer from a third party acting in good
faith for
the manufacturing of the products, which offer is lower or equal
to 10% of
the price previously agreed upon by and between SOFABO and WBOA,
WBOA
shall inform SOFABO and both parties thereafter shall have a period
of 10
business days following WBOA’s proposition (hereinafter referred to as the
“Period”) to discuss the said offer in view of obtaining a reasonable
competing offer from SOFABO. In the event that the parties are
unable to
reach an agreement within the prescribed delay, WBOA shall be entitled
to
terminate the Agreement, the whole subject to a written notice
to SOFABO
to that effect not exceeding 30 days from the expiration of the
period. In
such event, the Agreement shall be terminated without further recourse
within 90 days following the reception of the
notice;
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2.6
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Schedule
7 of the Contract, which Section 2.3.0 refers to, is repealed as
no
monthly minimum shall be invoiced to
WBOA;
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2.7
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Section
2.7 is amended as follows:
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“During
the entire duration of the Contract, and for a period of 5 years from the
date
of its expiration for whichever reason whatsoever, the sub-contractor undertakes
not to manufacture, distribute and/or sell, directly or indirectly, for
itself or for any third party or associate,
any
product or concept identical and/or similar to the contractual products,
nor
to
invest, do business with whichever natural or legal person that may conduct
a
commercial business related to the manufacturing, distribution and/or sale
whichever product or concept identical and/or similar to the contractual
products. Furthermore, in the event that the shareholders of Sofabo assign
the
majority or the totality of the assets of the latter, said shareholders
undertake, prior to such assignment, to require from the future buyers, that
they intervene to the present agreement, or in the event of a refusal by
the
buyers to do so, to inform the Ordering Party at least thirty (30) business
days
prior to the date of the signature of said assignment agreement of the assets.
In such event, the Ordering Party shall then, at its discretion and without
recourse from the subcontractor, take back the Machine and terminate the
Contract.”
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2.8
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Section
2.10.1 is modified as regards to its duration in such way that
the
Agreement shall have, subject to termination according to the terms
of
Section 2.11 of the Contract (as modified by Section 2.9 of the
Agreement), a duration of five (5) years from its
signature;
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2.9
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Section
2.11.1 is modified as follows:
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“The
present Contract may be terminated by the resilient party according to Section
2.11.0, upon occurrence of one of the hereinunder mentioned events:
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a)
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following
a letter of intent which remained unsuccessful during one (1) month
specifying the alleged default, as well as the desire to terminate
the
application of the present section, in which case Sections 2.11.2
and
2.11.3 shall be applicable; or
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b)
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in
the event of the sale of Sofabo by the current shareholders of
the
corporation (i.e. Xxxxx Xxxxxx, wife Xxxxxxxx, President of the Board of
Directors, Xx. Xxxxxxx Xxxxxxxx, director and Xx. Xxxxxx Xxxxxxxx,
director), if the buyer refuses to be binded by the Agreement.
In such
event, the Agreement may be terminated without recourse upon a
written
notice to that effect to WBOA within a delay not exceeding thirty
(30)
days from the sale. In such event, the Agreement would be terminated
without recourse within ninety (90) days following the receipt
of such
notice; or
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c)
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if,
at the end of the first eight (8) months, the volume of sales is
inferior
to the amount of 24 400 € (i.e. a minimum monthly invoicing of
3 050 € X 8 months), SOFABO, within a delay of thirty (30) days,
informs WBOA in writing (hereinafter referred to as the “Notice”) of its
desire to terminate the Agreement within a delay of ninety (90)
days. In
such event, the Agreement would be terminated without further recourse
within ninety (90) days following the receipt of the Notice;
or
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d)
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in
the event that the Xxxxxxxx family (i.e. Xxxxx Xxxxxx, wife Xxxxxxxx,
President of the Board of Directors, Xx. Xxxxxxx Xxxxxxxx, director
and
Xx. Xxxxxx Xxxxxxxx, director), constitute a minority on the Board
of
Directors of Sofabo, Xx. Xxxxx Xxxxxxxx undertakes to immediately inform
WBOA of the foregoing by way of a written notice (hereinafter referred
to
as the “Notice”). Upon reception of the Notice, WBOA may, within a delay
not exceeding thirty (30) days from the reception of the Notice,
inform
Sofabo in writing that it terminates the Agreement. In such event,
the
Agreement shall be terminated without further recourse within ninety
(90)
days following the reception of the Notice;
or
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e)
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according
to the situation as stipulated in paragraph 2.5 of the present
Agreement.
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3.
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INTERPRETATION
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3.1
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Precedence
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The
present Agreement constitutes the entire and integral agreement agreed entered
into between the parties to the exclusion of any other document, contract
or
prior or simultaneous verbal promise that may have been agreed upon throughout
the negotiation process which preceded the complete execution of the Agreement,
which the parties declare inadmissible as evidence susceptible to modify
or
affect in whichever way any of the provisions of the Agreement.
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3.2
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Jurisdiction
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3.2.1
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Jurisdiction
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The
Agreement, its interpretation, execution, application, validity and effects
are
subject to the applicable laws in effect in France which govern in part or
entirely the provisions that it contains.
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3.2.2
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Presumption
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Any
provision of the Agreement which does not comply with the applicable
legislation, is presumed without effect insofar as it is prohibited by said
legislation. The foregoing also applies to all of the other clauses which
are
not subordinated or linked to such provision insofar as their applicability
depends on said provision.
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3.2.3
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Adaptation
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In
the
event that a provision contravenes to an applicable legislation, said provision
shall be interpreted, as the case may be, in such way that it shall comply
with
the applicable legislation or, in a way that is mostly likely susceptible
to
respect the intention of the parties without derogation to the prescriptions
of
the applicable legislation, to which the parties do not wish to contravene.
As
such,
in the event that a provision of the present agreement transgresses in whole
or
in part the Contract, it shall be interpreted, as the case may be, in such
way
that such provision will be compatible with the Contract. However, the
provisions of the present agreement shall have precedence on the provisions
of
the Contract.
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3.2.4
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Continuation
or cancellation
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If
the
Agreement contains a prohibited provision, all the other provisions of the
Agreement shall remain in effect and continue to bind the parties unless
such
provision which transgresses the applicable legislation is essential to the
agreement or to the balance of the parties’ respective performances, and that a
compatible interpretation with the applicable legislation cannot rectify
such
deficiency, in which case the agreement shall be declared null ab
initio
and the
parties shall be rehabilitated insofar as it is possible to do so and taking
into account the evolution of their situation from the date in effect of
the
agreement, to attain a state which is equivalent to rehabilitation, as the
case
may be.
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4.
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MISCELLANEOUS
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4.3.1
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Delays
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All
the
delays indicated in the agreement are final, unless as otherwise provided
for in
the text. In computing any time limit, the following rules shall
apply:
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·
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The
day which marks the start of the time limit is not counted, but
the
terminal day is counted;
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Non-juridical
days, i.e. Sundays and holidays, are counted but when the last
day is a
non-juridical day, the time limit is extended to the next following
juridical day; and
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The
word “month”, when used in the agreement, shall mean calendar
months.
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If
the
agreement stipulates a specific calendar date and that such date consists
of a
non-juridical day, the terminal day shall then be the first juridical day
following the stipulated date.
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4.3.2
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Plurality
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All
the
rights mentioned in the agreement are cumulative and not alternative. The
renunciation to the exercise of a right to which a party consented to in
favor
of the other party shall never be interpreted as a renunciation to the exercise
of any other right, herein consented, unless the text of a provision of the
Agreement exceptionally indicates the necessity of such choice.
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4.3.3
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Currency
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All
the
amounts stipulated in the agreement refer to Euros.
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4.3.4
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Gender
and Number
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In
the
event that the comprehension of the text requires it, a word expressed with
the
masculine gender shall comprise the feminine and vise versa. The foregoing
also
applies to a word which expresses a number in such way that the singular
comprises the plural and vise versa. Any sentence containing versatile words
of
such nature shall be read, when the meaning of the text requires it, in a
way
which shall accommodate the appropriate version of such word with the
grammatical changes required to give logical meaning to the
sentence.
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4.3.5
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Titles
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The
titles used in the agreement have no interpretive value; they shall serve
solely
as an element of classification and identification of the constitutive
provisions of the agreement between the parties and because of such purpose,
they shall not be attributed any signification nor shall they influence the
interpretation of a provision.
IN
WITNESS WHEREOF, THE PARTIES HAVE SIGNED TWO (2) COPIES AT PARIS, THIS
27TH
DAY OF
THE MONTH OF OCTOBER 2004.
| WATER BANK OF AMERICA INC. | |||
| Per: (SGD) | |||
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Xxxx-Xxxx
Xxxxxxxxx, duly authorized
As
he so declares
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A
XX XXXXX SUR YON, THIS 28TH
DAY OF
THE MONTH OF OCTOBER 2004.
| SOCIETE SOFABO | |||
| Per: (SGD) | |||
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Xxxxx
Xxxxxxxx, duly authorized
as
he so declares
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