ADDENDUM (NUMBER 3) TO MANUFACTURING, MARKETING AND DISTRIBUTION
AGREEMENT
This Addendum (3) modifies the Agreement of September 2,
1999 between Dean Tornabene and Charles Perez, as individuals or
as a company to be designated by them at a future date
(collectively "DTCP"), and National Boston Medical, Inc., a
Nevada corporation ("National Boston"), which Agreement was
assigned by National Boston to Infotopia, Inc., on or about April
6, 2000.
Section 1.2
The sentence beginning "The parties contemplate that
from time to time they will mutually agree upon
additional products . . ." is deleted and replaced with
the following sentence:
"The parties contemplate that from time to time they
may mutually agree upon additional products which DTCP
may, in its sole discretion, license on an exclusive
basis to Infotopia, except as otherwise agreed to by
the parties in writing."
Section 1.3
The Section beginning "During the term of this
Agreement, DTCP shall not, directly or indirectly,
either alone or in participation with any other person
. . ." is deleted and replaced with the following
sentences:
"Provided Infotopia is not in default of any term,
condition, provision, covenant, warranty or
representation of this Agreement, then for one year
following the date that Infotopia begins active,
material marketing of the Product, DTCP shall not,
directly or indirectly, either alone or in
participation with any other person or entity, engage
in or be involved with manufacturing, marketing or
distributing any other product substantially similar in
design, price, composition, content and function to the
Product. For purposes of this Agreement,"substantially
similar price" means a product which has a price which
is within fifty percent (50%) of the price of the
Product in question."
3. Section 1.51
Section 1.51 shall be added to the Agreement. Section
1.51 shall read as follows:
"Provided Infotopia is not in default of any term,
condition, provision, covenant, warranty or
representation of this Agreement, then DTCP shall offer
a minimum of three (3) new products to Infotopia, or
its assigns each year."
Section 1.6
Following the sentence beginning "National Boston shall
adhere to any reasonable requests and directions of
DTCP . . ." the following sentences shall be added:
"Infotopia acknowledges it has not tested, edited or
manufactured the Body Rocker show in a manner
consistent with industry standards for a first quality
direct marketing program. Infotopia agrees that by
September 12, 2000, the Body Rocker show shall be
tested, edited and manufactured in a manner which is
consistent with the industry standards for a first
quality direct marketing program and in a manner which
is satisfactory to DTCP, in its sole and absolute
discretion. In the event Infotopia fails to test, edit
and manufacture the Body Rocker show in a manner which
is consistent with the industry standards for a first
quality direct marketing program and in a manner
satisfactory to DTCP, in its sole and absolute
discretion by September 12, 2000, then Infotopia shall:
(1) forfeit all rights under the Agreement,
including but not limited to rights under
any license granted by DTCP under this
Agreement, which rights shall terminate
automatically and without any further action,
notice or demand by DTCP on September 12,
2000, unless the media test has been
satisfactorily completed by such date;
(2) within ten (10) days execute and
deliver all documentation necessary to convey
to DTCP (a)all property associated in any
way with the manufacture, advertising,
marketing or sale of the Body Rocker,
including but not limited to all intellectual
property and all versions, masters, copies
of the Body Rocker show produced by Infotopia
pursuant to this Agreement and (b)the right
by DTCP to use and exploit in any manner
whatsoever such property;
(3) within fifteen (15) days assemble, at
Infotopia's cost, at such location as is
designated by DTCP, all tooling, molds,
prototypes, demonstration models and produced
units of the Body Rocker, as well as all
tangible personal property associated with
the Body Rocker;
(4) execute such documentation as is deemed to be
necessary by DTCP to convey title to DTCP in
all tooling, molds, prototypes, demonstration
models and produced units of the Body Rocker
and which allows DTCP to manufacture,
advertise, market or sell the Body Rocker.
Infotopia shall pay $4,277.00 to DTCP on or before July 14,
2000 to reimburse DTCP for repairs made and paid for by DTCP to
the Body Rocker."
Section 9
The sentence beginning "If National Boston fails to
meet the minimum royalties as stated in Exhibit D, and
such condition is not cured by National Boston within
30 days of written notification by DTCP . . . " is
deleted and replaced with the following sentence:
"If Infotopia fails to meet the minimum royalties as
stated in Exhibit D, and such condition is not cured by
Infotopia within ten business (10) days of written
notification by DTCP of Infotopia's failure to meet
such requirements, Infotopia shall have no further
rights under this Agreement (except for the sell-off
rights contained in Section 10.3)."
Section 10.1(b)
The sentence beginning "DTCP may terminate, subject to
Section 10.3, National Boston's rights to manufacture .
. ." is deleted.
Section 10.1(c)
The sentence beginning "Either party may terminate this
Agreement upon 30 days written notice to the other
party . . ." is deleted and replaced with the following
sentence:
"Except as otherwise provided in this Agreement, either
party may terminate this Agreement by providing written
notice to the other party of the material breach by the
other party of its representations, warranties,
covenants or agreements set forth in this Agreement.
The Agreement shall terminate without the need for
further action by either party; provided, however, that
if the breach (other than the failure to pay minimum
royalties, which breach shall be governed by Section 9)
upon which such notice of termination is based is cured
within ten business (10) days from the date of the
Notice of Default, then such Notice of Termination
shall be deemed rescinded and this Agreement shall be
deemed reinstated and in full force and effect."
Section 10.2
This section is deleted.
Section 16
This section is deleted and replaced with the following
section:
"16. Right of First Review.
Provided Infotopia is (i) not in breach of any term,
condition, provision, covenant, warranty or
representation of this Agreement, (ii) executes a
confidentiality and non-disclosure agreement in a form
acceptable to DTCP in their sole and absolute
discretion; and (iii) executes such other documentation
as is reasonably requested by DTCP to protect their
pecuniary and proprietary interests, then DTCP shall
present all other direct response televison fitness
products owned and/or controlled by DTCP which have
been sufficiently developed for marketing,
distribution, sale and exploitation to Infotopia for
review and inspection prior to showing such products to
any competitor of Infotopia. Infotopia shall have
seventy-two (72) hours from the receipt of such
product(s) to present an acceptable written offer to
license for manufacture, use, distribution, sale,
advertisement, promotion and exploitation, such
products from DTCP. Following the expiration of such
seventy-two (72) hour period, DTCP shall have no
further obligation to Infotopia with respect to such
product(s). DTCP shall be free to show, market,
license, distribute and/or exploit in any manner
whatsoever such product(s) in any manner which it
chooses without any obligation or liability of any kind
to Infotopia with respect to such product(s)."
Section 18.1
Section 18.1 shall be added to the Agreement. Section
18.1 shall read as follows:
"Contemporaneous with the execution of this Addendum 3,
National Boston shall exchange the stock of National
Boston issued to DTCP pursuant to the terms of the
Agreement to stock in Infotopia, Inc., a subsidiary of
National Boston."
Section 18.2
Section 18.2 shall be added to the Agreement. Section
18.2 shall read as follows:
The stock in National Boston which is to be issued to
DTCP pursuant to the terms of Section 18 of the
Agreement shall instead be issued in Infotopia, Inc.
Such stock shall be issued on the dates, amounts and
proportions, without dilution, as those set forth in
Section 18 of the Agreement. These shares will carry a
piggyback registration rights as described in paragraph
18 of the Agreement"
19.1
The address of DTCP is changed as follows:
DTCP
4051 Glencoe, Unit 8
Marina del Rey, CA 90292
Attention: Dean Tornabene
(Fax No. 310-577-6701)
Copy to:
Daniel J. Weintraub, Esq.
Weintraub & Aver LLP
12424 Wilshire Blvd., Suite 1030
Los Angeles, CA 90025
(Fax No. 310-442-0660)
The address of Infotopia is changed as follows:
Infotopia
P.O. Box 391
Taunton, MA 02780
Attention: Tony Ferracone
(Fax No. Unchanged)
Agreement By Dean Tornabene, an individual, To See To The
Presentation Of Products To National Boston, To Not
Compete; And To Honor Right Of First Refusal.
This paragraph is deleted in its entirety and replaced
with the Agreement attached hereto as Rider 1.
Agreement By Charles Perez, an individual, To See To The
Presentation Of Products To National Boston, To Not
Compete; And To Honor Right Of First Refusal.
This paragraph is deleted in its entirety and replaced
with the Agreement attached hereto as Rider 2.
Exhibits A-1, B-1, C-1, D-1 and E-1
Exhibits A-1, B-1. C-1, D-1 and E-1 are deleted.
Exhibits A-3, B-3, C-3, D-3 and E-3
Exhibits A-3, B-3, C-3, D-3 and E-3 are deleted.
Exhibit D-2 (Body Rocker)
The sentence beginning "$100,000 for each calendar
quarter commencing with the earlier of (i) the first
full calendar quarter following the month in which the
Product is ruled out on a national basis in television
direct response marketing or (ii) the first quarter of
the year 2000 " is deleted and replaced with the
following sentence:
"$100,000 for each calendar quarter commencing with the
earlier of (i) the first full calendar quarter
following the month in which the Product is rolled out
on a national basis in television direct response
marketing or (ii) July 25, 2000."
Except as stated above, the Agreement remains otherwise
unchanged.
I have read the above and agree that the terms are
acceptable and shall be deemed Addendum to the Manufacuring,
Marketing and Distribution Agreement of September 2, 1999 between
Dean Tornabene, Charles Perez, and Infotopia Medical, Inc.
DATED: /s/ Dean Tornabene
DEAN TORNABENE, an Individual
DATED: /s/ Charles Perez
CHARLES PEREZ, an Individual
DATED: INFOTOPIA, INC..
By: /s/ Ernest Zavoral
ERNEST ZAVORAL
President
RIDER 1
Agreement By Dean Tornabene, an individual,
To Not Compete and To Honor Right of First Viewing.
I, Dean Tornabene, an individual, agree that:
(i) I will not individually, directly or indirectly,
either alone or in participation with any other
person or entity, engage in or be involved with
manufacturing, marketing or distributing any other
products substantially similar in design,
composition, content or function to the Products;
and
(ii) Provided Infotopia is not in default of any terms,
conditions, provisions, covenants or warranties of
the Agreement, I hereby agree to replacement
paragraph 16 as set forth in that certain
"Addendum 3" to Manufacturing, Marketing and
Distribution Agreement dated as of July 1, 2000.
This paragraph shall be binding on me in the event
that I assign this Agreement to another company.
DATED: /s/ Dean Tornabene
DEAN TORNABENE, an Individual
RIDER 2
Agreement By Charles Perez, an individual,
To Not Compete and To Honor Right of First Viewing
I, Charles Perez, an individual, agree that:
(i) I will not individually, directly or indirectly,
either alone or in participation with any other
person or entity, engage in or be involved with
manufacturing, marketing or distributing any other
products substantially similar in design,
composition, content or function to the Products;
and
(ii) Provided Infotopia is not in default of any terms,
conditions, provisions, covenants or warranties of
the Agreement, I hereby agree to replacement
paragraph 16 as set forth in that certain
"Addendum 3" to Manufacturing, Marketing and
Distribution Agreement dated as of July 1, 2000.
This paragraph shall be binding on me in the event
that I assign this Agreement to another company.
DATED: /s/ Charles Perez
CHARLES PEREZ, an Individual
