EXHIBIT 10.07
THIS DOCUMENT
REPRESENTS A
LICENSE AGREEMENT
BETWEEN
EURECTEC, INC.
A WHOLLY OWNED SUBSIDIARY OF
THE QUANTUM GROUP, INC.
LICENSOR
AND
ATLANTA RUBBER RECYCLING, INC.
LICENSEE
FOR THE TERRITORY OF
FLORIDA
DATE : MAY 20, 1996
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TABLE OF CONTENTS
I. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.1 Business Day. . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.2 Confidential Information. . . . . . . . . . . . . . . . . . . . 5
1.3 Dollars (CAN) or "$CAN" . . . . . . . . . . . . . . . . . . . . 5
1.4 Dollars (US) or "$US" . . . . . . . . . . . . . . . . . . . . . 5
1.5 Effective Date. . . . . . . . . . . . . . . . . . . . . . . . . 5
1.6 Licensed Technology . . . . . . . . . . . . . . . . . . . . . . 6
1.7 Net Revenues. . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.8 Patents . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.9 Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.10 Plant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.11 Technical Information . . . . . . . . . . . . . . . . . . . . . 6
1.12 Territory . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.13 Trademarks. . . . . . . . . . . . . . . . . . . . . . . . . . . 6
II. GRANT OF RIGHTS AND LICENCES. . . . . . . . . . . . . . . . . . 6
2.1 Use of Patents. . . . . . . . . . . . . . . . . . . . . . . . . 7
2.2 Construction of Plants. . . . . . . . . . . . . . . . . . . . . 7
2.3 Use of Technical Information. . . . . . . . . . . . . . . . . . 7
2.4 Right to Use Trademarks . . . . . . . . . . . . . . . . . . . . 7
2.5 Quality Control . . . . . . . . . . . . . . . . . . . . . . . . 8
2.6 Right to Sublicense . . . . . . . . . . . . . . . . . . . . . . 8
2.7 No Rights by Implication. . . . . . . . . . . . . . . . . . . . 8
2.8 Non-Competition . . . . . . . . . . . . . . . . . . . . . . . . 8
III. OBLIGATIONS OF EURECTEC . . . . . . . . . . . . . . . . . . . . 8
3.1 Training and Technical Assistance . . . . . . . . . . . . . . . 9
3.2 Additional Services . . . . . . . . . . . . . . . . . . . . . . 9
IV COMPENSATION PAYABLE TO EURECTEC. . . . . . . . . . . . . . . .10
4.1 Licensing Fee and Royalty . . . . . . . . . . . . . . . . . . .10
4.2 Contents of Licensee's Reports. . . . . . . . . . . . . . . . .11
4.3 Payments Accompany Licensee's Reports . . . . . . . . . . . . .11
4.4 Minimum Royalty . . . . . . . . . . . . . . . . . . . . . . . .11
4.5 Payments of Royalties and Other Amounts . . . . . . . . . . . .11
4.6 Licensee's Books and Records. . . . . . . . . . . . . . . . . .12
4.7 Eurectec's Right to Audit . . . . . . . . . . . . . . . . . . .12
4.8 Audit Information Confidential. . . . . . . . . . . . . . . . .12
4.9 Licensee's Reports Conclusively Correct . . . . . . . . . . . .12
V INVENTIONS. . . . . . . . . . . . . . . . . . . . . . . . . . .12
5.1 Disclosure Inventions . . . . . . . . . . . . . . . . . . . . .12
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5.2 Right to Use Inventions . . . . . . . . . . . . . . . . . . . .12
5.3 Registering Patents on Inventions . . . . . . . . . . . . . . .12
5.4 Registering Patents in the Territory. . . . . . . . . . . . . .13
VI CONFIDENTIAL INFORMATION. . . . . . . . . . . . . . . . . . . .13
6.1 Confidentiality Maintained. . . . . . . . . . . . . . . . . . .13
6.2 Information in Connection with Sale . . . . . . . . . . . . . .13
6.3 Liability for Disclosure. . . . . . . . . . . . . . . . . . . .13
VII WARRANTIES. . . . . . . . . . . . . . . . . . . . . . . . . . .14
7.1 Warranties. . . . . . . . . . . . . . . . . . . . . . . . . . .14
VIII TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . .14
8.1 Term of Agreement . . . . . . . . . . . . . . . . . . . . . . .14
8.2 Termination . . . . . . . . . . . . . . . . . . . . . . . . . .14
8.3 After Termination . . . . . . . . . . . . . . . . . . . . . . .15
8.4 Payment Obligations Continue. . . . . . . . . . . . . . . . . .15
8.5 No Damages for Termination. . . . . . . . . . . . . . . . . . .15
8.6 Sub-Licenses not to be Terminated . . . . . . . . . . . . . . .15
8.7 Sub-Licensees Rights if Licensee Terminated . . . . . . . . . .15
IX REPRESENTATIONS, WARRANTIES & COVENANTS OF EURECTEC . . . . . .15
9.1 Ownership of Licensed Technology. . . . . . . . . . . . . . . .15
9.2 No Conflicting Agreements . . . . . . . . . . . . . . . . . . .16
X MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . .16
10.1 Assignments . . . . . . . . . . . . . . . . . . . . . . . . . .16
10.2 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . .16
10.3 Arbitration . . . . . . . . . . . . . . . . . . . . . . . . . .16
10.4 Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
10.5 Non Circumvention . . . . . . . . . . . . . . . . . . . . . . .17
10.6 No Other Relationship . . . . . . . . . . . . . . . . . . . . .17
10.7 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
10.8 Entire Understanding. . . . . . . . . . . . . . . . . . . . . .17
10.9 Invalidity. . . . . . . . . . . . . . . . . . . . . . . . . . .18
10.10 Amendments. . . . . . . . . . . . . . . . . . . . . . . . . .18
10.11 Fees Payable. . . . . . . . . . . . . . . . . . . . . . . . .18
10.12 Responsibility for Taxes. . . . . . . . . . . . . . . . . . .18
10.13 Survival of Contents. . . . . . . . . . . . . . . . . . . . .18
10.14 Table of Contents and Headings. . . . . . . . . . . . . . . .19
10.15 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . .19
10.16 Feasibility . . . . . . . . . . . . . . . . . . . . . . . . .19
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LICENSE AGREEMENT
This License Agreement is made and entered into on this day : May 20, 1996
by and between Eurectec, Inc., of ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ # ▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and Atlanta Rubber Recycling, Inc.
________________________________________________________________
WHEREAS, Eurectec possesses certain intellectual and industrial property
rights with respect to tire recycling and recovery processes from Cisap
S.p.A. and other recycling technologies ; and
WHEREAS, Eurectec under the terms of its agreement with Cisap S.p.A. Italy,
is willing to grant, and LICENSEE/sub licensee desires to receive, the
right to use such rights in : Florida
in accordance with the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and mutual promises, terms
and conditions hereinafter set forth, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
the parties do hereby agree as follows :
I. DEFINITIONS
As used herein, the following terms shall have the following definitions.
1.1 Business Day. "Business Day" shall mean a day on which banks are open
for business in Los Angeles, California, U.S.A.
1.2 Confidential Information. "Confidential Information" shall mean that
part of the Technical Information which is not publicly known.
1.3 Dollars (Can). "Dollars (Can)" shall mean the lawful money of Canada in
immediately available funds.
1.4 Dollars (US) or "$US". "Dollars (US)" or "$US" shall mean the lawful
money of the United States of America in immediately available funds.
1.5 Effective Date. "Effective Date" shall mean the later of (a) the date
on which EURECTEC executes this Agreement, (b) the date on which LICENSEE
executes this Agreement and pays the Licensing Fee [4.1 (a)(i)].
1.6 Licensed Technology. "Licensed Technology" shall mean the Patents,
Trademarks and Technical Information now in existence.
1.7 Gross Income. "Gross Income" shall mean (a) any and all amounts
received by
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LICENSEE or its sub licensees in connection with the services rendered
and/or products sold from or by Plants which operate in the Territory.
1.8 Patents. "Patents" shall mean all patents and patent applications
listed in Exhibit A to this Agreement.
1.9 Payment. "Payment" shall mean a Commercial Letter of Credit or other
mutually acceptable and agreed upon payment method.
1.10 Plant. "Plant" shall mean a tire recycling and recovery facility
operated pursuant to the rights granted to LICENSEE/sub licensee hereunder.
1.11 Technical Information. "Technical Information" shall mean all
currently existing trade secrets , know-how, computer programs (including
copyrights in said programs), knowledge, technology, means, methods,
processes, practices, formulas, techniques, procedures, technical,
assistance, designs, drawings, apparatus, written and oral rectification's
of data, specifications, assembly procedures, schematics and other valuable
information of whatever nature, whether confidential or not, and whether
proprietary or not, which are necessary to allow someone reasonably skilled
in the industry to construct, use, service and test a Plant.
1.12 Territory."Territory" shall mean : Florida
1.13 Trademarks. "Trademarks" shall mean any and all trademarks, trade
names, service marks and other commercial symbols either listed in Exhibit
C to this Agreement or else which EURECTEC may from time to time designate
to be included within this definition by written notice to LICENSEE/sub
licensee. Once included in this definition, such trademarks, trade names,
service marks and other commercial symbols shall not be removed from this
definition without the mutual agreement of the parties hereto.
II. GRANT OF RIGHTS AND LICENSES
Subject to all of the terms and conditions set forth in this Agreement:
2.1 Use of Patents. EURECTEC hereby grants to LICENSEE an exclusive right
and license during the term of this Agreement to practice the Technology in
order to use and operate Plants and/or sell equipment in the Territory.
LICENSEE shall not use or operate Plants or sell equipment outside the
Territory. LICENSEE shall not use or operate Plants or sell equipment
outside the Territory. EURECTEC or CISAP shall not use/ or operate Plants
or sell equipment inside the Territory.
2.2 Construction of Plant(s)
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Pursuant to the presentation to EURECTEC for approval of otherwise
completed sub-license agreements and/or otherwise completed contracts for
the construction and operation of plants by LICENSEE/sub licensee, EURECTEC
will test successfully and disassemble and package safely for shipment,
complete equipment and machinery as described in the said agreements or
contracts. (EXHIBIT B) All other costs of shipping, duties, taxes and
licences shall be borne by the sub-licensee or by LICENSEE according to the
agreement between LICENSEE and the sub-licensee.
2.3 Use of Technical Information.
(a) EURECTEC grants to LICENSEE an exclusive right and license during
the term of this Agreement to use the Technical Information in the
Territory in connection with EURECTEC's exercise of its rights and licenses
granted in Paragraph 2.1 above.
(b) As soon as practicable after the Effective Date, but in no event
later than (60) days after the Effective Date, EURECTEC shall provide to
LICENSEE/sub licensee, at no additional costs to LICENSEE/sub licensee, all
of the Technical Information.
2.4 Right to Use Trademarks. LICENSEE/sub licensee shall use each of the
Trademarks on an exclusive basis in connection with the use, operation and
promotion of Plants hereunder, provided, however, that LICENSEE/sub
licensee shall give EURECTEC thirty (30) days prior written notice before
using any Trademark for the first time in a particular location in the
Territory. LICENSEE/sub licensee may also use other trademarks, trade
names, service marks and commercial symbols of its own choosing in
connection with the use, operation and promotion of Plants hereunder.
2.5 Quality Control.
(a) In order to comply with EURECTEC's quality control standards,
LICENSEE/SUB LICENSEE shall :
(i) maintain the quality of each plant by adhering to those specific
quality control standards that EURECTEC may from time to time promulgate
and communicate to LICENSEE with respect to such Plant ;
(ii) use the Trademarks prominently on the Plant(s) and documentation
relating to the Plant(s), and in compliance with all relevant laws and
regulations;
(iii) accord EURECTEC the right to inspect each Plant during normal
business hours, without prior advance notice, to confirm that LICENSEE's
use of such Trademarks is in compliance with this provision.
2.6 Right to Sub license. LICENSEE shall have the right to sub license any
of the
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rights and licenses granted hereunder without the prior consent of
EURECTEC, so long as : (a) each sub licensee agrees in writing to be bound
by all of the terms and conditions contained in this Agreement; and (b)
EURECTEC is provided with a copy of each such agreement within ten (10)
days after it is executed. LICENSEE hereby guarantees that each of its sub
licensees shall comply with the terms contained in this Agreement.
2.7 No Rights by Implication. No rights or licenses with respect to
Licensed Technology are granted or deemed granted hereunder or in
connection herewith, other than those rights or licenses expressly granted
in this Agreement.
2.8 Non-Competition. During the term of this Agreement , LICENSEE/sub
licensee shall not engage in any negotiations with third parties with a
view towards or engage in the manufacture of any device which may be
employed to recycle or otherwise recover tires if such device could
reasonably be considered to be in competition with the EURECTEC processes
described in this Agreement; neither shall EURECTEC or CISAP shall
negotiate or conclude any agreement with any other party to construct or
operate a Plant or Plants within the Territory while this Agreement is in
effect.
III. OBLIGATIONS OF EURECTEC
3.1 Training & Technical Assistance.
(a) To assist LICENSEE/sub licensee in exercising its rights
hereunder, EURECTEC agrees to provide sufficient man-days of training and
technical assistance each calendar year (beginning in the year of the
Effective date) to LICENSEE/sub licensee and its employees anywhere in the
Territory, so that LICENSEE/sub licensee will be able to use the Licensed
Technology to its full potential. Such training and assistance shall be
rendered by EURECTEC at no additional charge to LICENSEE/sub licensee,
except for expenses to be reimbursed to EURECTEC as provided in Paragraph
3.1(c) below.
(b) To the extent LICENSEE/sub licensee requests such training and
technical assistance in excess of the man-days provided in Paragraph 3.1
(a) above, EURECTEC shall be paid a per diem amount to be negotiated
between the parties before such assistance and training is provided and
which shall be paid before such assistance and training is rendered;
provided that EURECTEC's representatives are then able to provide such
training and technical assistance.
(c) Travel costs, lodging, meals and all related expenses incurred by
EURECTEC in connection with sending representatives into the Territory
pursuant to this Paragraph 3.2 (a) or (b) shall be paid for in full by the
LICENSEE/sub licensee.
3.2 Additional Services.
(a) EURECTEC shall use its reasonable efforts to provide LICENSEE/sub
licensee with any and all additional assistance reasonably requested by
LICENSEE/sub
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licensee, including without limitation; producing technical, sales,
advertising and other reports and information for LICENSEE/sub licensee
which LICENSEE/sub licensee believes might be useful in promoting the
Plants; assisting LICENSEE/sub licensee in attempting to obtain from third
parties technical information, drawings, plans, specifications and other
data which are not proprietary to EURECTEC and which EURECTEC does not
otherwise have the right to use, in order to enable LICENSEE/sub licensee
to respond to requests of any potential customer, assisting LICENSEE/sub
licensee in responding to technical inquiries from potential customers of
the Plants; and assisting LICENSEE/sub licensee in the testing of Plants
and in the further development of test equipment
(b) EURECTEC shall ▇▇▇▇ LICENSEE/sub licensee for any such additional
services at prices to be agreed in advance by the parties hereto. EURECTEC
shall not commence performance of any part of any services hereunder until
such prices are established in writing by the parties hereto.
(c) Such services shall be invoiced in Dollars (US) monthly by
EURECTEC. Payment shall be due within thirty (30) days after EURECTEC's
receipt of each of EURECTEC's invoices therefor, and shall otherwise be
paid in accordance with Paragraph 4.5 hereof.
IV. COMPENSATION PAYABLE TO EURECTEC
4.0 Minimum Equipment Purchase - LICENSEE agrees to purchase the equipment
package under Exhibit B, or equipment of similar value, within ( 90 ) days
of signing this Agreement and five (5) additional C6000 granulator during
the following five (5) years or sooner.
4.1 Licensing Fee & Royalty
(a) LICENSEE agrees to pay EURECTEC, for the rights granted to
LICENSEE under paragraphs 2.1, 2.2, 2.3(a) and 2.4 above and for the
services to be rendered by EURECTEC under paragraphs 2.3 (b) and 3.1 (a)
above; and in addition, upon completion of each sub-licensing agreement
secured and negotiated by LICENSEE:
(i) A Fee equal to the total amount of items supplied as per;
Exhibit A - Price List of all Fees, Disbursements and
Miscellaneous Costs; and
Exhibit B - Price List of all machinery, equipment, supplies and
material. The items supplied to be mutually agreed upon by
EURECTEC and the LICENSEE except for those items in Exhibits A &
B which are indicated as non-negotiable and which must, in any
case, be included. Payment of the Fee indicated in Exhibit A as
"Licensing Fee" shall, subject to the signing of this Agreement by
both parties, initiate this Agreement. Signed copies of Exhibits A
& B shall constitute part of this Agreement, however, the signing
of these Exhibits may, by mutual agreement, be made subsequent to
the signing of this main part and shall not delay the Effective
date of this Agreement as per para. 1.5.
(ii) a continuing royalty equal to Five per cent (5%) of the Gross
Income from all Plants operated by the LICENSEE (re 1.7)
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(iii) a continuing royalty equal to Five per cent (5%) of the Gross
Income from all Plants by sub-Licensees of the LICENSEE (re 1.7)
4.2 Contents of LICENSEE's Reports. LICENSEE shall deliver to EURECTEC
within ninety (90) days after the end of each Payment Period, starting on
the Effective Date and every 90 days thereafter, a written report
describing, for the applicable Payment Period; (a) the number of Plants
operated by LICENSEE and its sub licensees during such Payment Period; (b)
the Gross Income for each Plant during the Payment Period ; and (c) the
total royalty due on such Gross Income under Paragraph 4.1(a)(iii) hereof.
4.3 Payments Accompany LICENSEE's Reports. Each report for a payment Period
required in Paragraph 4.2 hereof shall be accompanied by a full payment to
EURECTEC of the royalties payable under Paragraph 4.1(a)(iii) hereof from
the Gross Income described in Paragraph 4.2 above.
4.4 Minimum Royalty.
(a) No minimum royalty shall apply, however, the LICENSEE/sub licensee
is required to operate and maintain the Plant or Plants in the Territory at
a level of production that shall reasonably be held comparable to other
plants operating under similar operating and market conditions.
4.5 Payments of Royalties and Other Amounts.
(a) All payments under Paragraphs 3.2, 4.3 hereof shall be made in
Dollars (US) by wire transfer or other mutually agreed upon method, to such
bank or account as EURECTEC may from time to time designate in writing.
(b) Whenever any payment hereunder shall be stated to be due on a day
which is not a Business Day, such payment shall be made on the immediately
succeeding Business day.
(c) Payments hereunder shall be considered to be made as of the day on
which they are received in EURECTEC's designated bank or account.
(d) For this agreement to become effective, the Licensee is required
to make the initial equipment purchase according to the terms and
conditions described in Exhibit "B", concurrently with the signing of this
agreement.
4.6 LICENSEE's Books and Records. LICENSEE/sub licensee agrees to make and
keep full and accurate books and records in sufficient detail to enable
royalties payable hereunder to be determined.
4.7 EURECTEC Right to Audit. On seven (7) day's prior written notice to
LICENSEE/sub licensee, EURECTEC and its certified public accountants and
other auditors shall have full access to the books and records of LICENSEE
and/or any or
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all of its sub licensees pertaining to activities under this Agreement
and shall have the right to make copies therefrom at EURECTEC's expense.
EURECTEC, its certified public accountants and other auditors shall have
such access at all reasonable times and from time to time during normal
business hours. Prompt adjustment shall be made by the proper party to
compensate for any errors or omissions disclosed by such audit.
4.8 Audit Information Confidential. EURECTEC agrees to hold confidential
all information learned in the course of any examination of books and
records pursuant to Paragraph 4.8 above, except when it is necessary for
EURECTEC to reveal such information in order to enforce its rights under
this Agreement in court, or similar dispute resolution or enforcement
proceeding or action, or except when compelled by law.
4.9 LICENSEE's Reports Conclusively Correct. All quarterly reports and
payments not disputed as to correctness by EURECTEC within three (3) years
after receipt thereof shall thereafter conclusively be deemed correct for
all purposes.
V. INVENTIONS.
5.1 Disclosure Inventions. LICENSEE/sub licensee shall disclose to EURECTEC
each Invention of LICENSEE/sub licensee affecting the operation of the
Plant(s) or equipment after such Invention is formulated, made or
conceived.
5.2 Right to Use Inventions. LICENSEE/sub licensee may use such inventions
only if approved in writing by EURECTEC.
5.3 Registering Patents on Inventions. If LICENSEE/sub licensee formulates,
makes or conceives a patentable Invention, LICENSEE/sub licensee may apply,
at its own expense, for appropriate patent and other registrations of such
Invention in any and all jurisdictions in the Territory.
5.4 Registering Patents in the Territory. LICENSEE/sub licensee may
register any such patents for use in the Territory at his own expense
subject to 5.2.
VI. CONFIDENTIAL INFORMATION
6.1 Confidentiality Maintained. Each party agrees that the other party
hereto has a proprietary interest in its Confidential Information. All
disclosures to the receiving party, its agency and employees shall be held
in strict confidence by such receiving party, its agents and employees, and
such receiving party shall disclose the Confidential information only to
those of its agents and employees to whom it is necessary in order to carry
out their duties as limited by the terms and conditions hereof. The
receiving party shall not use the other party's Confidential Information
except for the purposes of exercising its rights and carrying out its
duties hereunder.
The provisions of this paragraph 6.1 shall also apply to any consultants or
subcontractors that the receiving party may engage in connection with its
obligations under this Agreement.
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6.2 Information in Connection with Sale. EURECTEC hereby grants the
LICENSEE the right during the term of this Agreement to distribute to the
LICENSEE's sub licensees in connection with the operation of Plants that
part of the Technical Information necessary for such sub licensees to use
and operate such Plant, even if such information includes some of
EURECTEC's Confidential Information, to the extent that Eurectec and the
LICENSEE agree that such technical Information is helpful to such sub
licensees in order to operate the Plant.
6.3 Liability for Disclosure. Notwithstanding anything contained in this
Agreement to the contrary, neither party shall be liable for a disclosure
of the other party's Confidential Information if the information is so
disclosed;
(a) was in the public domain at the time it was disclosed by the
disclosing party to the receiving party; or
(b) was independently developed by the receiving party and is so
demonstrated promptly upon receipt of the documentation and technology by
the receiving party; or
(c) becomes known to receiving party from a source other than the
disclosing party without breach of this Agreement by the receiving party
and can be so demonstrated.
VII. WARRANTIES.
7.1 Warranties.
(a) THE ORIGINAL MANUFACTURER'S WARRANTIES SHALL BE PASSED ON TO THE
LICENSEE OR SUB-LICENSEE BY EURECTEC.
(b) IN NO EVENT SHALL EURECTEC BE LIABLE TO LICENSEE FOR SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF
PROFITS OR LOSS OF USE DAMAGES) ARISING OUT OF THE USE OR OPERATION OF ANY
PLANT, EVEN IF EURECTEC HAS BEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES
OR LOSSES.
VIII. TERMINATION.
8.1 Term of Agreement. Unless it is terminated earlier pursuant to the
terms of this Article 8, this Agreement shall continue in full force and
effect in perpetuity.
8.2 Termination. Upon the occurrence of any of the following events, this
Agreement may be terminated by the non breaching party by giving written
notice of termination to the breaching party, such termination to be
immediately effective upon the giving of such notice of termination. Unless
for reasons of force majeure, outside the control of Licensor, Licensee or
sub-Licensee.
(a) the occurrence of a material breach or default as to any
obligation hereunder by either party and the failure of such breaching
party to promptly
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pursue (within thirty (30) days after receiving written notice thereof from
the non breaching party) a reasonable remedy designed to cure (in the
reasonable judgment of the non-breaching party) such material breach or
default; or
(b) the filing of a petition in bankruptcy, insolvency or
reorganization against or by either party, or either party becoming subject
to a composition for creditors, whether by law or agreement, or either
party going into receivership or otherwise becoming insolvent (for the
purposes of this Paragraph 8.2., such party shall be considered to be a
breaching party). or
(c) failure of the LICENSEE to order, accompanied by transferable
irrevocable Letter of Credit, the equipment for the first plant to be
constructed within the Territory, within ninety (90) days of completion of
this Agreement.
8.3 After Termination. If the LICENSEE is the breaching party, all rights
to the Territory provided in the Agreement shall revert immediately to
EURECTEC.
8.4 Payment Obligations Continue. Upon termination of this Agreement for
any reason, nothing shall be construed to release LICENSEE from its
obligations to pay EURECTEC any and all royalties or other amounts accrued
but unpaid hereunder prior to the date of such termination.
8.5 No Damages for Termination. The parties hereto agree that if either
party terminates the other party pursuant to this Article 8, then the
termination party shall not be liable form damages or injuries suffered by
the other party as a result of that termination.
8.6 Sub-Licensees not to be Terminated. Should this Agreement between
LICENSEE and EURECTEC be terminated for any reason, the Agreements with
sub-licensees, which have been approved previously by EURECTEC and
negotiated and completed by LICENSEE, shall continue in effect and without
penalties or requirement of remedies unless such Agreements with
sub-licensees are also in default, in which case each sub-licensee
agreement shall be treated and considered separately and distinctly by
EURECTEC.
8.7 Sub-Licensees Rights of LICENSEE Terminated. Provided the Sub-Licensees
are not in breach of this Agreement, they shall retain all rights to
operate according to the provisions of this Agreement.
IX. REPRESENTATIONS. WARRANTIES AND COVENANTS OF EURECTEC.
9.1 Ownership of Licensed Technology. EURECTEC hereby represents and
warrants to LICENSEE that, to the best of its information and belief,
EURECTEC is the lawful owner of the Licensed Technology, free and clear of
all security interests, encumbrances, liens, mortgages, licenses or rights
of third parties which would impair the licenses and rights granted to
LICENSEE hereunder.
9.2 No Conflicting Agreements. EURECTEC hereby represents, warrants and
covenants that it has not and will not enter into any agreement with or
become subject to any obligation in favor of any third party which might
conflict with its obligations hereunder.
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X MISCELLANEOUS
10.1 Assignments. Except as provided in Paragraph 2.6 hereof, this
Agreement and any and all of the rights and obligations of either party
hereunder shall not be assigned, delegated, sold, transferred or otherwise
disposed of, by operation of law or otherwise, without the prior written
consent of the other party.
This Agreement shall be binding upon, and inure to the benefit of, EURECTEC
and LICENSEE and their respective successors and assigns, to the extent
such assignments are in accordance with this paragraph 10.1.
10.2 Governing Law. This Agreement shall be governed, interpreted and
construed in accordance with the laws of the State of Nevada, United States
of America, as such laws are implied to agreements entered into and to be
performed entirely within its borders between its residents. In the
unlikely event of either party bringing a law suit against the other, each
party has the right to litigate against the other under the Laws of the
United States .
10.3 Arbitration. Any dispute, controversy or claim arising out of or
relating to this Agreement or to a breach thereof, including its
interpretation, performance or termination, shall be submitted to and
finally resolved by arbitration. The arbitration shall be conducted in
accordance with the commercial rules of the United Nations Conference on
International Trade Law ("UNCITRAL") which shall be administered in London,
England (including the rendering of the award) by the London Court of
International Arbitration. The arbitration, shall be the exclusive forum
for resolving such dispute, controversy or claim. For the purposes of this
arbitration, the provisions of this Agreement and all rights and
obligations thereunder shall be governed and construed in accordance with
the laws of the State of Nevada, United States of America, as such laws are
applied to agreements entered into and to be performed entirely within its
borders between its residents. The decision of the arbitrators shall be
executory, final and binding upon the parties hereto, and the expense of
the arbitration (including without limitation the award of attorney's fees
to the prevailing party) shall be paid as the arbitrators determine.
10.4 Waiver. A waiver of any breach of any provision of this Agreement
shall not be construed as a continuing waiver of other breaches of the same
or other provisions of this Agreement.
10.5 Non-Circumvention. In the event that LICENSEE or any of its designated
agents shall introduce any other person or persons, company or corporation
to the EURECTEC Patents, systems or plant, and should such introduction,
discussion, negotiation, conversation or written communication result in
said person, persons, company or corporation entering into an Agreement
with EURECTEC for the licensing of said patents, processes or the
construction of a plant, whether within or without the Territory covered by
this Agreement, said person, persons, company or corporation shall be
deemed to be a sub-licensee of LICENSEE under this Agreement and shall be
governed by all the conditions contained in this Agreement, unless such
plant is to be built in another Licensee's assigned territory in which case
a "finder's fee" shall be negotiated with the other Licensee.
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10.6 No Other Relationship. Nothing herein contained shall be deemed to
create a joint venture, agency or partnership relationship between the
parties hereto. Neither party shall have any power to enter into any
contracts or commitments in the name of, or on behalf of, the other party,
or bind the other party in any respect whatsoever.
10.7 Notices. Each notice required or permitted to be sent under this
Agreement shall be given by Fax transmission or by registered or recorded
delivery letter to EURECTEC and to LICENSEE at the addresses and FAX
numbers supplied. Either party may change its address and/or fax number for
purposes of this Agreement by giving the other party written notice of its
new address and/or Fax number. Any such notice if given or made by
registered or recorded delivery letter shall be deemed to have been
received on the earlier of the date actually received and the date ten (10)
Business Days after the same was posted (and in proving such it shall be
sufficient to prove that the envelope containing the same was properly
addressed and posted as aforesaid) and if given or made by telecopy
transmission shall be deemed to have been received at the time of despatch,
unless such date of deemed receipt is not a Business Day, in which case the
date of deemed receipt shall be the next succeeding Business Day.
10.8 Entire Understanding. This Agreement embodies the entire understanding
between the parties relating to the subject matter hereof, whether written
or oral, and there are no prior representations, warranties or agreements
between the parties not contained in this Agreement.
10.9 Invalidity. If any provision of this Agreement is declared invalid or
unenforceable by a court having competent jurisdiction, it is mutually
agreed that this Agreement shall endure except for the part declared
invalid or unenforceable by order of such court. The parties shall consult
and use their best efforts to agree upon a valid and enforceable provision
which shall be a reasonable substitute for such invalid or unenforceable
provision in light of the intent of this Agreement.
10.10 Amendments. Any amendment or modification of any provision of this
Agreement must be in writing, dated and signed by both parties hereto.
10.11 Fees Payable. "Licensing Fee" is payable upon signing this Agreement
by the LICENSEE, other fees are payable as described in Exhibits A & B and
in para 4.3 of this Agreement.
10.12 Responsibility for Taxes.
(a) Taxes in the territory now or hereafter imposed with respect to
the transactions contemplated hereunder (with the exception of income taxes
or other taxes imposed upon EURECTEC and measured by the gross or net
income of EURECTEC) shall be the responsibility of LICENSEE, and if paid or
required to be paid by EURECTEC, the amount thereof shall be added to and
become a part of the amounts payable by LICENSEE hereunder.
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(b) Taxes outside the Territory now or hereafter imposed with respect
to the transactions contemplated hereunder (with the exception of income
taxes or other taxes imposed upon LICENSEE and measured by the gross or net
income of LICENSEE) shall be the responsibility of EURECTEC, and if paid or
required to be paid by LICENSEE, the amount thereof shall be deducted from
the amounts payable by LICENSEE hereunder.
(c) All taxes that become due and payable in the territory, from
royalty payments earned by Eurectec, Inc., from the Licensee and payable to
Eurectec, Inc., by the Licensee, under the terms of this Agreement, shall
be paid by the Licensee on behalf of Eurectec, Inc., and the net proceeds
will be passed to Eurectec, Inc., under the terms of this Agreement
accordingly.
10.13 Survival of Contents. Notwithstanding anything else in this Agreement
to the contrary, the parties agree that Paragraphs 2.7, 3.1(b) and (c),
3.2(b) and (c), 5.2, 8.4, 8.5, 10.1, 10.2, 10.3, 10.5, 10.6, 10.7, 10.8,
10.9, 10.10, 10.12, and 10.13 and Articles IV, VI & VII shall survive the
termination or expiration of this Agreement, as the case may be, to the
extent required thereby for the full observation and performance by any or
all the parties hereto.
10.14 Table of Contents and Headings. Any table of contents accompanying
this Agreement and any headings contained herein are for directory purposes
only, do not constitute a part of this Agreement, and shall not be employed
in interpreting this Agreement.
10.15 Counterparts. This Agreement may be executed in any number of
counterparts and each such counterpart shall be deemed to be an original.
10.16 Feasibility. The Licensee acknowledges that EURECTEC makes no
promises, claims or projections concerning the feasibility, number or
viability of tire recycling plant(s) in the Territory, nor of the
availability of raw materials or markets, and that it is the responsibility
of the Licensee to establish to his own satisfaction that such a plant or
plants are feasible.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement.
Signed this date : May 20, 1996
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by
EURECTEC, INC. ATLANTA RUBBER RECYCLING, INC.
Licensor. As Licensee.
Signed: By /s/ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Signed: By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
_____________________ _______________________
Name: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: President Title: Company Secretary
Witness: Caralen Lutanio Witness: Caralen Lutanio
(Print Name ) (Print Name)
Signed: By /s/ Caralen Lutanio Signed: By /s/ Caralen Lutanio
E-18
EURECTEC, Inc.
EXHIBIT "A"
Appendix to the License Agreement between Eurectec, Inc.
and
Atlanta Rubber Recycling, Inc.
for the Territory of
Florida
Price List of Fees, Disbursements and Miscellaneous Costs
The following Costs and other considerations constitute part of the above
described License Agreement and shall be binding upon the parties to the
Agreement.
Item One: Licensing Fee: In consideration of which, Eurectec grants
the exclusive right to build, construct,
operate
and/or sub-license the construction, building
or operation of such Tire Recycling Plants as
are the subject of this Agreement, within the
boundaries of the Territory stated in the
Agreement.
$ 700,000 U.S. dollars
less 5% cash deposit $ 035,000 U.S. dollars
Balance Due: $ 665,000 U.S. dollars*
NOTE : Fee payable upon the signing of this Agreement. The foregoing fee
is a one time only fee payable for the rights to the described Territory.
No such fee is payable to Eurectec by or for sub-Licensees of the
Licensee. California Sales Tax is not applicable to this amount.
* To be pledged to Eurectec, Inc., via a Corporate Promissory Note - to be
signed by all the ARR shareholders.
Signed : By /s/ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (Eurectec).
Signed : By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ (Licensee).
Date of Agreement : May 20, 1996
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EURECTEC, Inc.
EXHIBIT "B"
Appendix to License Agreement between
Eurectec, Inc., and Atlanta Rubber Recycling, Inc.
Equipment Price List
Part One - C3000 granulator plus additional processing equipment :
1.0 C3000 granulator $ 478,000.00
1.1 ▇▇▇▇▇▇ plus conveyor assembly 050,000.00
2.0 Bead puller 020,000.00
3.0 Slitter ES2 026,250.00
4.0 Slitter ES3 (cross-cut) 026,250.00
5.0 Baling machine (C3000 reclaimed steel) 007,500.00
6.0 Smasher 70 shredder 063,000.00
7.0 Shipping and installation 050,000.00
Shredding & granulating equipment $ 721,000.00
Part Two - Product manufacturing equipment :
1.0 PressMaster Duo ( 200 ) $ 354,545.00
2.0 MixMaster ( 2 ) 345,454.00
6.0 Spare molds a) shallow 009,091.00
b) deep 036,364.00
7.0 Installation charges 090,909.00
8.0 Shipping charges 045,454.00
Product manufacturing equipment $ 881,817.00
TOTAL EQUIPMENT COSTS $ 1,602,817.00
1.0 Exclusive License Fee-State of Florida: $ 700,000.00
TOTAL PROJECT COST $ 2,302,817.00
(a) Excludes Florida Sales Tax or other Taxes, where applicable.
(a) Terms : To be funded via an acceptable Letter of Credit, confirmed via
a US or Canadian Bank with agreed draw down terms to a) pay for the C3000
equipment held in inventory, b) the product manufacturing equipment, c) the
start-up expenses.
(a) This License to be read in conjunction with the Sales Agreement to be
signed by both parties.
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Initial : EL Initial : GG
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EURECTEC, Inc.
EXHIBIT "C"
Appendix to the License Agreement between Eurectec, Inc.
and
Atlanta Rubber Recycling, Inc.
for the Territory of :
Florida
LIST & SAMPLES OF TRADEMARKS & LOGOS
The following items constitute part of the above described License
Agreement and shall be
binding upon the parties to the Agreement.
SEE ATTACHED EXAMPLES
Signed : ________________________ (Eurectec)
Signed : ________________________ (Licensee)
Date of Agreement : May 20, 1996
EURECTEC, Inc.
EXHIBIT "D"
Appendix to the License Agreement between Eurectec
and
Atlanta Rubber Recycling, Inc.
for the Territory of
Florida
LIST OF WARRANTIES attached.
The following Warranties constitute part of the above described License
Agreement and shall be binding upon the parties to the Agreement.
a) All CISAP products are guaranteed for twelve (12) months commencing at
commissioning date. The guarantee includes the replacement of all parts
that are defective or mismanufactured, and covers defects in the machinery
operation resulting from such defective parts and/or manufacturing defects.
The guarantee does not include consumable items such as blades, seals, or
bearings.
Technical support in the form of personnel from CISAP will be supplied as
per paras 3.1 a, b & C., of the Agreement.
b) CISAP guarantees the nominal production capacity of granulators within
+/- 10 %. Data is based on the crumbling and granulating of radial, steel
belted, truck casings resulting in granules measuring between 0.5 mm and
4.0 mm.
Signed : By /s/ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (Eurectec)
Signed : By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ (Licensee)
Date of Agreement : May 20, 1996
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