AMENDMENT
This AMENDMENT executed and delivered as of May 8, 1998 by and between ADVANCED
PARTICLE TECHNOLOGIES, INC., A Delaware corporation ("APT"), and VANGKOE
INDUSTRIES INC., a Florida corporation ("VANGKOE");
WITNESSETH:
WHEREAS, APT And VANGKOE entered into A Technology Purchase Agreement
("TPA") dated as of June 30, 1997 and
WHEREAS, the parties accordingly now desire to amend said TPA in
accordance with Section 6.5 of said Agreement and
WHEREAS, APT and VANGKOE agree to amend the terms of the TPA with respect
to the matters set forth below and be legally bound with all such changes
Amend as follows:
1. Delete in its entirety Section 3 "Royalty Payment" and replace it with the
following:
"3. Royalty Payment
If APT or its affiliates shall sell coated particles utilizing the coating
technology purchased by APT pursuant to this Technology Purchase
Agreement, as the same may be modified, enhanced or improved by APT, to
any customer for use in any market, APT or its affiliates shall pay to
VANGKOE a royalty equal to $0.025 per pound of coated material sold during
the period May 8, 1998 through and including May 7, 2003 and $0.015 per
pound of coated material sold during the five-year period May 8, 2003
through and including May 7, 2008 for materials sold exclusively in the
swimming pool industry, and a royalty equal to $0.02 per pound of coated
material sold during the period May 8, 1998 through and including May 7,
2003 and $0.01 per pound of coated material sold during the five-year
period May 8, 2003 through and including May 7, 2008 for all other
markets. Such payment will be made on a semi-annual basis on or prior to
March 31st and September 30th of each year and shall be accompanied by
reasonably detailed documentation supporting the calculation of such
royalty. Such royalty shall be due regardless of whether the coating
technology was applied at APT's current St. Augustine, Florida facility or
at another new or existing facility of APT or any of its affiliates,
suppliers or customers. If VANGKOE shall disagree with the calculation of
any semi-annual royalty payment, VANGKOE shall provide written notice
thereof to APT within 10 days following its receipt of the calculation add
payment. VANGKOE and APT shall then work together in good faith to resolve
the dispute within the following 30-day period. If the parties are unable
to resolve the dispute within such 30-day period, the dispute will be
resolved by arbitration in accordance with Section 6.2 below."
2. Under Section 4 "Certain Additional Agreements" -- subsection (a) --
Delete "as well as the benefits to be realized by VANGKOE under the
Distribution Agreement".
3. Under Section 4 "Certain Agreements" -- subsection (a)(ii) -- Delete "and
termination of Distributor Agreement".
Page Two of AMENDMENT
4. Under Section 4 "Certain Agreements" -- subsection (a)(B)(ii) -- Delete
"or the Distributor Agreement".
5. Under Section 5 "Representations and Warranties" -- subsection (a) --
Replace "and the Distributor Agreement have" to "has".
4. Under Section 6.1 "Notices" -- subsection (i) change address from" 00
Xxxxxxx Xxxx, Xxxxxx, Xxx Xxxxxx 00000 Telephone: (000) 000-0000
Telecopier: (000) 000-0000" to "2180 Xxxx Xxx. Xxxxx, Xxxxx 000, Xxxxxx
Xxxx, Xxxxxxx 00000 Telephone: (000) 000-0000 Telecopier: (000) 000-0000".
5. (a) This Amendment shall be governed by and construed in and all of which
together shall constitute one and the same document.
(b) If any provision of this Amendment it invalidated by a Court of
competent jurisdiction, then all of the remaining provisions of this
Amendment shall remain in full force and effect.
(c) This Amendment constitutes the entire Agreement between the parties
hereto with respect to the matters set forth herein and supersedes in its
entirety any and all agreements or communications, whether written or
oral, previously made in connection with the matters herein. Any agreement
to amend or modify the terms and conditions of this Amendment must be in
writing and executed by both parties hereto.
IN WITNESS WHEREOF, THE PARTIES HERETO HAVE CAUSED THEIR DULY AUTHORIZED
OFFICERS TO EXECUTE AND DELIVER THIS AMENDMENT TO THE TECHNOLOGY PURCHASE
AGREEMENT AS OF THE DATE FIRST WRITTEN ABOVE.
ADVANCED PARTICLE TECHNOLOGIES, INC.
By: /s/ Xxxxxxx Amt
---------------------------
Name: Xxxxxxx Amt
-------------------------
Title: President
------------------------
VANGKOE INDUSTRIES, INC.
By: /s/ Xxxx Xxxxxxxx
---------------------------
Name: Xxxx Xxxxxxxx
-------------------------
Title: Pres
------------------------
WITNESS:
By: /s/ Xxxx X. Xxxxxxx
---------------------------
Name: Xxxx X. Xxxxxxx
-------------------------
