EXHIBIT 10.2
FIRST AMENDMENT TO
EXCLUSIVE LICENSEE AGREEMENT
THIS FIRST AMENDMENT TO EXCLUSIVE LICENSEE AGREEMENT (the "First
Amendment") is made and entered into effective as of the ___ day of May, 2006,
by and between PORTAGY CORP., a Delaware corporation (the "Company"), and BAVLI
GROUP INTERNATIONAL, INC., a Delaware corporation ("Bavli").
WHEREAS, the Company and Bavli entered into that certain Exclusive
Licensee Agreement made and entered into as of December 16, 2005 (the
"Agreement"); and
WHEREAS, the Company and Bavli desire to amend the Agreement as
hereinafter provided.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. RECITATIONS. The Company and Bavli acknowledge and agree that
the recitations set forth above are true and correct and are incorporated herein
by reference.
2. AGREEMENT BEING AMENDED. The agreement being amended by this
First Amendment is that certain Exclusive Licensee Agreement dated effective as
of December 16, 2005 entered into by and between the Company and Bavli, which is
incorporated herein by reference.
3. AMENDMENTS. The Agreement is hereby amended as follows:
(a) Exhibit A. "Exhibit A" of the Agreement shall be replaced
with Exhibit A attached hereto.
(b) Exhibit B. "Exhibit B" of the Agreement shall be replaced
with Exhibit B attached hereto.
(c) Exhibit C. "Exhibit C" of the Agreement shall be deleted
in its entirety and replaced by a new Exhibit C attached to this First
Amendment.
(d) Exhibit D. "Exhibit D" of the Agreement shall be deleted
in its entirety.
(e) Section 1. Section 1 of the Agreement shall be deleted in
its entirety and the following inserted in lieu thereof:
1. EXCLUSIVE SALES RIGHTS.
Subject to the terms and conditions of this
Agreement, the Company grants to Bavli, and Bavli hereby
accepts, the exclusive right to sell those certain products
set forth on Exhibit A hereto (the "Products") in the
territory set forth on Exhibit B hereto (the "Territory"). No
right, title or interest is granted, whether express or
implied, by the Company to Bavli relating to the right to sell
any of the other products of the Company or to sell the
Products anywhere other than in the Territory.
F. Section 2. Section 2 of the Agreement shall be
deleted in its entirety and the following inserted in lieu thereof:
2. COMPENSATION
A. Commission. For the first two years of the Term,
for services provided hereunder, the Company shall pay Bavli
an amount equal to two percent (2%) of the Net Sales. "Net
Sales" means gross revenue from the sale of Products in the
Territory, less any discounts, returns and rebates and/or
price adjustments. For the last four years of the Term, the
Company shall pay Bavli an amount equal to two percent (2%) of
the Net Sales from the customers listed on Exhibit C.
B. Payment. The Company shall submit to Bavli any
amount payable to Bavli pursuant to this Section 2 within
fifteen (15) days from the end of each month (or the end of
the Term if earlier) during which the Company receives payment
for the Products.
G. Section 3 B. The second sentence of Section 3 B of
the Agreement shall be deleted in its entirety.
H. Section 3 C. The second sentence of Section 3 C of the
Agreement shall be deleted in its entirety.
I. Section 7. Section 7 of the Agreement shall be
deleted in its entirety and the following inserted in lieu thereof:
7. Intentionally Omitted.
-2-
J. Section 12 A. Sections 12 A.iii and iv and Section
12 B of the Agreement shall be deleted in their entirety and the following
inserted in lieu thereof:
iii. The Company has issued Bavli 400,000 warrants to
purchase common stock of the Company at $0.75 per share. In
addition, the Company shall issue Bavli 1,400,000 warrants to
purchase common stock of the Company at $0.75 per share within
seven (7) days of the execution of this First Amendment.
K. Section 12 B. Section 12 B of the Agreement shall be
deleted in its entirety and the following inserted in lieu thereof:
B. In the event of a merger, reorganization or other
capital event of the Company, the shares to be issued pursuant
to Section 12 A shall be adjusted or converted in the same
manner as the shares of other stockholders of the Company are
adjusted or converted.
L. Section 13. Sections 13 A and B shall be deleted in
their entirety and the remaining parts of Section 13 shall be re-lettered
accordingly.
M. Section 14 A. The address of the Company set forth in
Section 14A shall be amended as follows:
Portagy Corp.
0000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
with a copy to: Xxxxxx Xxxxxx LLP
0000 Xxxx Xxxxx Xxxxx Xxxx.
Xxxxx 000
Xxxx Xxxx Xxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx, Esq.
N. Section 14 Q. A new Section 14 Q shall be added to
the Agreement as follows:
Q. Any controversy, dispute or claim arising out of
or relating to this Agreement, or its interpretation,
application, implementation, breach or enforcement which the
parties are unable to resolve by mutual agreement, shall be
settled by submission by either party of the controversy,
claim or dispute to binding arbitration in Los Angeles County,
California (unless the parties agree in writing to a different
-3-
location), before a single arbitrator in accordance with the
rules of the American Arbitration Association then in effect.
In any such arbitration proceeding the parties agree to
provide all discovery deemed necessary by the arbitrator. The
decision and award made by the arbitrator shall be final,
binding and conclusive on all parties hereto for all purposes,
and judgment may be entered thereon in any court having
jurisdiction thereof.
4. CONTINUANCE OF AGREEMENT. Except as specifically modified
pursuant to this First Amendment, the Agreement shall remain in full force and
effect.
IN WITNESS WHEREOF, the Company and Bavli have executed this First
Amendment effective as of the day and year set forth above.
PORTAGY CORP., a Delaware corporation
By:_____________________________________________
Xxxxx Xxxxxxxx, Authorized Signatory
BAVLI GROUP INTERNATIONAL, INC.
By: ____________________________________________
Xxxxxxx Xxxxxx, Chief Executive Officer
-4-
EXHIBIT A
PRODUCTS
The Products shall include the AES Porta Jump product line and any new or
updated versions thereof.
EXHIBIT B
TERRITORY
The Territory all include all territories licensed from AES by
the Company.
