BONUS AGREEMENT
This Agreement dated June 11, 2003 ("Agreement") is by and between Trans
Max Technologies, Inc., a Florida corporation ("Trans Max") which is in the
process of entering into a reverse merger with Perma-Tune Electronics, Inc., a
Texas corporation ("Perma-Tune"), and Linda Decker and Lonnie Lenarduzzi
(collectively referred to as "Decker").
W I T N E S S E T H:
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WHEREAS, Trans Max and Decker have entered into an employment contract and
a Share Exchange Agreement in connection with a reverse merger transaction with
Perma-Tune;
WHEREAS, Trans Max desires to fund the expansion of Perma-Tune's business
for a period of two (2) years;
WHEREAS, Trans Max desires to provide an incentive for Decker to enter into
an employment agreement with Trans Max;
NOW, THEREFORE, in consideration of the premises and the mutual covenants,
agreements, and considerations herein contained, the parties hereto agree as
follows:
1. Consideration. In consideration for Decker agreeing to execute an
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Employment Agreement with Trans Max, Trans Max agrees to fund the expansion of
Perma-Tune's business and provide a bonus for Decker with respect to Decker's
employment. In connection with this transaction, the parties hereby agree as
follows:
(a) Trans Max agrees to fund expansion of Perma-Tune Electronic's business per
the cash flow projection to be finalized and mutually agreed upon by August
30, 2003, for a period of two (2) years from the date of this Agreement;
(b) At the end of two years, Trans Max and Perma-Tune will each select an
independent appraiser to perform an evaluation of the Perma-Tune business.
The fees for both appraisers will be paid by Trans Max. In the event the
appraisals are within fifteen percent (15%) of each other, the average
valuation will be used to determine the amount of compensation due Decker.
If the appraisals are within fifteen percent (15%) of each other, Trans Max
will pay Decker as follows: twenty-five percent (25%) of such valuation in
cash, or twenty-five percent (25%) of such valuation in shares of
Perma-Tune common stock (based on the average closing price for the thirty
day period following the determination of the value by the appraisers), or
twenty-five percent (25%) based on a combination of Perma-Tune shares and
shares of the spun off Perma-Tune business. In the event Decker receives
compensation in shares of common stock of Perma-Tune, Perma-Tune shall file
an S-8 registration statement registering such shares of Perma-Tune within
thirty days of the valuation of Perma-Tune's business, as long as such
shares will not result in Decker owning ten percent (10%) or more of the
outstanding common stock of Perma-Tune. In the event Decker would have been
entitled to more than ten percent (10%) of the outstanding common stock,
S-8 registration statements will be filed periodically so that Decker is
not a ten percent (10%) shareholder at any instance until such time as
Decker receives the bonus as intended by the terms of this Agreement. In
the event that Decker shall also receive shares of common stock of the spun
off business of Perma-Tune as part of the bonus, Trans Max and Perma-Tune
agree to file a registration statement with the SEC within 90 days of the
valuation of Perma-Tune's business registering the shares issuable to
Decker such that Decker does not own ten percent (10%) or more of the
common stock of the spun off entity. Trans Max and Decker will mutually
agree how Decker will be compensated; and
(c) In the event the appraisals of the Perma-Tune business are greater than
fifteen percent (15%) apart, the two appraisers will appoint a third
appraiser to be paid by Trans Max and the three appraisals will be averaged
for purposes of determining the bonus for which the valuation is based on.
2. Benefit and Burden. This Agreement shall inure to the benefit of, and
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shall be binding upon, the parties hereto and their successors and permitted
assigns.
3. No Third Party Rights. Nothing in this Agreement shall be deemed to
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create any right in any creditor or other person not a party hereto and this
Agreement shall not be construed in any respect to be a contract in whole or in
part for the benefit of any third party.
4. Amendments and Waiver. No amendment, modification, restatement or
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supplement of this Agreement shall be valid unless the same is in writing and
signed by the parties hereto. No waiver of any provision of this Agreement
shall be valid unless in writing and signed by the party against whom that
waiver is sought to be enforced. No failure or delay on the part of any party
hereto in exercising any right, power or privilege hereunder and no course of
dealing between or among any of the parties hereto shall operate as a waiver of
any right, power or privilege hereunder. No single or partial exercise of any
right, power or privilege hereunder shall preclude any other or further exercise
thereof or the exercise of any other right, power or privilege hereunder. No
notice to or demand on any party in any case shall entitle such party to any
other or further notice or demand in similar or other circumstances or
constitute a waiver of the rights of any party to any other or further action in
any circumstances without notice or demand.
5. Assignments. Except as otherwise permitted hereunder, neither this
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Agreement nor any right, interest or obligation hereunder may be assigned by any
party hereto without the prior written consent of all parties and any attempt to
do so shall be null and void.
6. Counterparts. This Agreement may be executed in counterparts and by the
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different parties in separate counterparts, each of which when so executed shall
be deemed an original and all of which taken together shall constitute one and
the same agreement.
7. Captions and Headings. The captions and headings contained in this
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Agreement are inserted and included solely for convenience and shall not be
considered or given any effect in construing the provisions hereof if any
question of intent should arise.
8. Construction. The parties acknowledge that each of them has had the
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benefit of legal counsel of its own choice and has been afforded an opportunity
to review this Agreement with its legal counsel and that this Agreement shall be
construed as if jointly drafted by the parties hereto.
9. Severability. Should any clause, sentence, paragraph, subsection, or
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Section of this Agreement be judicially declared to be invalid, unenforceable or
void, such decision will not have the effect of invalidating or voiding the
remainder of this Agreement, and the parties agree that the part or parts of
this Agreement so held to be invalid, unenforceable or void will be deemed to
have been stricken herefrom by the parties, and the remainder will have the same
force and effectiveness as if such stricken part or parts had never been
included herein.
10. Remedies. The parties agree that the covenants and obligations
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contained in this Agreement relate to special, unique and extraordinary matters
and that a violation of any of the terms hereof or thereof would cause
irreparable injury in an amount which would be impossible to estimate or
determine and for which any remedy at law would be inadequate. As such, the
parties agree that if either party fails or refuses to fulfill any of its
obligations under this Agreement or to make any payment or deliver any
instrument required hereunder or thereunder, then the other party shall have the
remedy of specific performance, which remedy shall be cumulative and
nonexclusive and shall be in addition to any other rights and remedies otherwise
available under any other contract or at law or in equity and to which such
party might be entitled.
11. Applicable Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
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PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW
PRINCIPLES THEREOF.
12. Arbitration. The parties agree that they will use their best efforts to
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amicably resolve any dispute arising out of or relating to this Agreement. Any
controversy, claim, or dispute that cannot be so resolved shall be settled by
final binding arbitration in accordance with the rules of the American
Arbitration Association and judgment upon the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction thereof. Any such
arbitration shall be conducted in Ronkonkoma, New York or such other place as
may be mutually agreed upon by the parties. Within fifteen (15) days after the
commencement of the arbitration, each party shall select one person to act as
arbitrator, and the two arbitrators so selected shall select a third arbitrator
within ten (10) days of their appointment. Each party shall bear an equal share
of the arbitrator's expenses and administrative fees of arbitration, and the
losing party shall reimburse the winning party for attorney's fees, arbitrator
fees, and any other out of pocket expenses.
13. Expenses; Prevailing Party Costs. Notwithstanding anything contained
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herein or therein to the contrary, if any party commences an action against
another party to enforce any of the terms, covenants, conditions or provisions
of this Agreement, or because of a breach by a party of its obligations under
this Agreement, the prevailing party in any such action shall be entitled to
recover its losses, including reasonable attorneys' fees, incurred in connection
with the prosecution or defense of such action, from the losing party.
14. Entire Agreement, Amendments and Waivers. This Agreement sets forth all
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of the promises, agreements, conditions, understandings, warranties and
representations among the parties with respect to the transactions contemplated
hereby and thereby, and supersede all prior agreements, arrangements and
understandings between the parties, whether written, oral or otherwise. There
are no promises, agreements, conditions, understandings, warranties or
representations, oral or written, express or implied, among the parties
concerning the subject matter hereof or thereof except as set forth herein and
therein. No variations, modifications, changes or extensions of this Agreement
or any other terms hereof shall be binding upon any party hereto unless set
forth in a document duly executed by such party or an authorized agent or such
party.
15. Faxed Copies. For purposes of this Agreement, a faxed signature will
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constitute an original signature.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first written above.
TRANS MAX TECHNOLOGIES, INC.
By: /s/ Peter Mergenthaler
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Its: Chief Executive Officer
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PERMA-TUNE ELECTRONICS, INC.
By: /s/ Lonnie Lenarduzzi
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Its: Chief Executive Officer
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/s/ Linda Decker
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LINDA DECKER, Individually
/s/ Lonnie Lenarduzzi
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LONNIE LENARDUZZI, Individually
Exhibit 99.1
CERTIFICATION OF CHIEF EXECUTIVE OFFICER
PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
I, Lonnie Lenarduzzi, certify, pursuant to 18 U.S.C. Section 1350, as adopted
pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that the Quarterly
Report of Perma-Tune Electronics, Inc. on Form 10-QSB for the quarterly period
ended June 30, 2003 fully complies with the requirements of Section 13(a) or
15(d) of the Securities Exchange Act of 1934 and that information contained in
such Form 10-QSB fairly presents in all material respects the financial
condition and results of operations of Perma-Tune Electronics, Inc.
By: /s/ Lonnie Lenarduzzi
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Name: Lonnie Lenarduzzi
Title: Former Chief Executive Officer
August 19, 2003
Exhibit 99.2
CERTIFICATION OF CHIEF FINANCIAL OFFICER
PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
I, Linda Decker, certify, pursuant to 18 U.S.C. Section 1350, as adopted
pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that the Quarterly
Report of Perma-Tune Electronics, Inc. on Form 10-QSB for the quarterly period
ended June 30, 2003 fully complies with the requirements of Section 13(a) or
15(d) of the Securities Exchange Act of 1934 and that information contained in
such Form 10-QSB fairly presents in all material respects the financial
condition and results of operations of Perma-Tune Electronics, Inc.
By: /s/ Linda Decker
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Name: Linda Decker
Title: Former Chief Executive Officer
August 19, 2003