THIS AGREEMENT is made the 1st day of AUGUST 1997 BETWEEN:-
(1) EPS Environmental Inc. (trading as Solucorp Industries) of ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ("Solucorp") (2) ▇▇▇▇ ▇▇▇▇▇ Limited of
Dock Road North, Bromborough, Wirral, Merseyside, England ("JBL")
IT IS AGREED as follows:
1. Definitions.
The following terms shall have the following meaning:-
"Commencement Date date of JBL being officially recorded as
listed on AIM
"Expiry Date"
"the MBS Process" the invention which is the subject of
the Patent Applications namely the
stabilization of heavy metal(s)
contaminated soils and industrial slag,
sludges, ash and other such materials by
the addition of proprietary reagents to
the contaminated materials under
moisture controlled conditions
"Patent Applications" the Patent Applications listed in part 1
of the schedule.
"Royalties" the payments specified in clause 5
"Term" the period starting on the Commencement
Date and ending on the Expiry Date
unless earlier terminated as
provided by clause 10.
"Territories" the territories specified in part 2 of
the schedule.
2. Recitals
2.1 Solucorp is entitled to the benefit of the Patent Applications.
2.2 Solucorp has agreed to grant to JBL a licence under the Patent
Applications on the terms of this Agreement.
3. Grant
3.1 In consideration of JBL's payment of the Royalties Solucorp grants to
JBL for the Term an exclusive licence to make use of the MBS Process
within the Territories.
3.2 Solucorp shall at the request of JBL execute any further document
which may be necessary to give effect to this Agreement in any of the
Territories.
4. JBL to register Licence
JBL shall register this Agreement at the relevant Patent Office within
three months from the Commencement Date.
5. Royalties
5.1 For the purposes of the currency exchange rate basis the agreed
exchange rate for the first year of the Term shall be (pound)1.00 to
US$1.67. Such exchange rate base will be reviewed and if agreed
adjusted as appropriate by both parties on each anniversary of the
Commencement Date on the basis that Solucorp accepts that JBL's
budgeting requirements necessitate its need to
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express currency in UK currency.
5.2 On the Commencement Date JBL will pay to Solucorp the sum of
$600,000.00 ((pound)359,280.00) in cash or non--restricted shares as
mutually agreed by the parties as soon as practicable following
raising at least that sum through JBL's launch on the Alternative
Investment Market but if such launch is unsuccessful in raising such
sum or does not take place then this Agreement shall be null and void.
5.3 On the first anniversary and each subsequent anniversary of the Term
JBL shall pay to Solucorp a minimum annual Royalty payment of $50,000
((pound)29940.00).
5.4 JBL agrees that for each year of the Term the following provisions
shall apply:-
5.4.1 JBL will use all reasonable endeavours to process a minimum of
100,000 tons of soil or other medium with the MBS Process each
year.
5.4.2 Solucorp agrees that no automatic penalty or revocation of this
Licence will be imposed on JBL in the event of JBL's failure to
attain the target of 100,000 tons of soil or other medium
remediated by the MBS Process.
5.4.3 JBL shall pay the sum of $7.00 ((pound)4.20) per ton processed
by the MBS Process at the end of each quarter by reference to
specific projects.
6. Solucorp's warranties and Indemnity.
Solucorp warrants:-
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6.1 that it is the sole proprietor of the Patent Applications and has full
power to enter into this Agreement.
6.2 that it has not granted any licences to use the Patent Applications or
the MBS Process within the Territories nor suffered the Patent
Applications to be the subject of any charge, mortgage or other
incumbrance.
6.3 The Patent Applications are in force and Solucorp has not either by
act or omission caused or permitted anything which may cause the
Patent Applications:-
6.3.1 to lapse prematurely.
6.3.2 to be the subject of a compulsory licence.
6.4 Solucorp will keep JBL fully indemnified against all actions, claims,
proceedings, costs and damages (including any damages or compensation
paid by JBL on the advice of its legal advisors to compromise or
settle any claim) and all legal costs or other expenses arising out of
any breach of the above warranties or out of any claim by a third
party based on any facts which if substantiated would constitute such
a breach.
7. Invalidity or revocation of Patents Applications
If the Patent Applications or any of them shall be declared invalid or
revoked by a court or tribunal of competent jurisdiction all Royalties
shall cease to be payable as from the date of such declaration or
revocation but if the decision of the court or tribunal making such
declaration or revocation shall be reversed on appeal Royalties shall
become payable from the date of such reversal together with all Royalties
which would have been payable but for the adverse decision.
8. Solucorp's Obligations
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Solucorp shall:-
8.1 Supply Information.
8.1.1 inform JBL of all technical information concerning the MBS
Process.
8.1.2 supply JBL with any mutually agreed to be appropriate documents
or drawings relevant to the MBS Process.
8.1.3 licence JBL to use such documents, drawings and technical
information.
8.2 Improvements
If any improvement to the MBS Process is discovered:--
8.2.1 disclose to JBL full details of the improvement.
8.2.2 grant to JBL an exclusive royalty--free licence to make use of
it.
8.3 Supply of chemicals.
8.3.1 supply JBL with the chemicals required for the MBS Process at
cost on an open book basis such chemicals to be paid for by JBL
at the sooner of when Solucorp pays its suppliers or shipment
of the chemicals to JBL.
8.3.2 consult regularly with JBL regarding chemicals supply and costs
during which JBL will have the right to identify lower priced
alternative suppliers for chemicals other than the sulphides
covered by the Patent Applications to Solucorp with a view to
effecting a change of supplier and consequent price reduction.
Such arrangements for changing chemical suppliers remaining the
exclusive responsibility of Solucorp.
9. JBL's Obligations
JBL shall:
9.1 Quality
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Ensure that all schemes carried out by JBL using the MBS Process
comply with all laws and regulations in operation in the territory in
which the relevant operations take place.
9.2 Marketing
Make every endeavour to effectively market and promote the MBS Process
within the Territories.
9.3 Confidentiality
Keep secret all confidential information and details of the
proprietary MBS Process without the written consent of Solucorp to
release such information or details.
9.4 Indemnity
Keep Solucorp indemnified against all actions claims proceedings costs
and damages (including any damages or compensation paid by Solucorp on
the advice of its legal advisors to compromise or settle any claim)
and all legal costs or other expenses arising out of any breach of the
above obligations or out of any claim by a third party based on any
facts which if substantiated would constitute such a breach
10. Termination
This Agreement shall terminate;
10.1 Time
On the Expiry Date but the Term shall be automatically renewed for a
further 10 years unless both parties agree in writing to the contrary
10.2 Insolvency
If JBL or Solucorp goes into liquidation either compulsory or
voluntary (except for the purpose of reconstruction or amalgamation)
or if a receiver administrative receiver or administrator is appointed
in respect of the whole or
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any part of their assets or if JBL or Solucorp makes an assignment for
the benefit of or composition with its creditors generally or
threatens to do any of these things or any similar occurrence under
any jurisdiction affects JBL or Solucorp
10.3 Invalidity or revocation of a Patent
in the circumstances set out in clause 7
10.4 Fundamental breach
on the occurrence of significant default by either party under the
terms of this Agreement and in such event the defaulting party shall
receive notice in writing to rectify the situation within 120 days or
risk termination and such notification shall acknowledge that all
existing terms are applicable throughout that period.
11. Termination Consequences
11.1 Procedure
On the expiry or other termination of this Agreement through JBL'S
default but not otherwise JBL undertakes:
11.1.1 to return to Solucorp all samples publicity promotional and
advertising materials and all confidential data
11.1.2 to sign such notification of cessation of use of the Patent
Applications as is required by Solucorp
11.1.3 to return to Solucorp all originals and copies of all documents
and information in any form containing or covering in any way
any part of the Patent Applications
11.1.4 to cease carrying on the activities permitted by this Agreement
11.2 Existing rights
The termination of this Agreement shall be without prejudice to any
rights
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which have already accrued to either of the parties under this
Agreement
11.3 Acknowledgement
The parties acknowledge that in order to further the purposes of this
Agreement information containing or consisting of trade secrets,
customer lists and other confidential information may be communicated
by either party to the other. Such information may take the form of
plans drawings and data and will be deemed confidential unless
otherwise designated by Solucorp or JBL as appropriate. Solucorp shall
have the right to apply and obtain from the Court a restraining order
to prevent JBL from disclosing or using such confidential information
to third parties either during the Term or for a period of 12 months
thereafter
12. General
12.1 Receipt
The receipt of money by Solucorp shall not prevent Solucorp from
questioning the correctness of any statement in respect of any money
12.2 Force majeure
12.2.1 if either party is prevented from fulfilling its obligations
under this Agreement by reason of any supervening event beyond
its control including but not by way of limitation war national
emergency flood earthquake strike or lockout (other than a
strike or lockout induced by the party so incapacitated) the
party unable to fulfil its obligations shall immediately give
notice of this to the other party and shall do everything in
its power to resume full performance
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12.2.2 on such notice being given neither party shall be deemed to be
in breach of its obligations under this Agreement
12.2.3 if and when the period of incapacity exceed 6 months then this
Agreement shall automatically terminate unless the parties
first agree otherwise in writing
12.3 Whole agreement
This Agreement contains the whole agreement between the parties and
supersedes any prior written or oral agreement between them in
relation to its subject matter and the parties confirm that they have
not entered into this Agreement on the basis of any representations
that are not expressly incorporated into this Agreement. Should any
provisions of this Agreement be determined to be unenforceable or
prohibited by any applicable law this Agreement shall be considered
divisible after such provision which shall be inoperative and the
remainder of this Agreement shall be valid and binding as though such
provisions were not included herein.
12.4 No modification
This Agreement may not be modified except by an instrument in writing
signed by both of the parties their duly authorised representatives
12.5 Headings
Headings contained in this Agreement are for reference purposes only
and shall not be incorporated into this Agreement and shall not be
deemed to be any indication of the meaning of the clauses and
sub--clauses to which they relate
12.6 Joint and several
All agreements on the part of either of the parties which comprises
more than
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one person or entity shall be joint and several
12.7 Proper law and jurisdiction
This Agreement shall be governed by English law in every particular
including formation and interpretation and shall be deemed to have
been made in England and all parties agree to submit to the
jurisdiction of the courts of England and Wales
12.8 Arbitration
Any difference between the parties concerning the interpretation or
validity of this Agreement or the rights and liabilities of either of
the parties shall in the first instance be referred to the arbitration
of two persons (one to be nominated by each party) and their mutually
agreed umpire
12.9 Notices
12.9.1 any notice consent or the like (in this clause referred to
generally as `notice') required or permitted to be given under
this Agreement shall not be binding unless in writing and may
be given personally or sent to the party to be notified by
pre-paid first class post or by telex or by facsimile
transmission at its address as set out above or as otherwise
notified in accordance with this clause
12.9.2 notice given personally shall be deemed given at the time of
delivery
12.9.3 notice sent by post in accordance with this clause shall be
deemed given at the commencement of business on the second
business day next following its posting
12.9.4 notice sent by telex or facsimile transmission in accordance
with this clause shall be deemed given at the time of its
actual
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transmission
12.10 Reservation of rights
All rights not specifically and expressly granted to JBL by this
Agreement are reserved to Solucorp
12.11 Waiver
The failure by either party to enforce at any time or for any period
any one or more of the terms of conditions or this Agreement shall not
be a waiver of them or of the right at any time subsequently to
enforce all terms and conditions of this Agreement
12.12 Interpretation
12.12.1 unless the context otherwise requires:
12.12.1.1 words importing the singular number shall include
the plural and vice versa
12.12.1.2 words importing any particular gender shall
include all other genders
12.12.1.3 reference to persons shall include bodies of
persons whether corporate or incorporate
12.12.2 any reference in this Agreement to any statute or statutory
provision shall be construed as referring to that statute or
statutory provision as the same may from time to time be
amended modified extended reenacted or replaced (whether before
or after the date of this Agreement) and including all
subordinate legislation made under it from time to time
12.13 Survival of terms
The warranties and indemnity contained in this Agreement and the
provisions for payment of and accounting in respect of Royalties and
other money due to
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Solucorp under this Agreement shall survive the termination or expiry
of this Agreement
12.14 No agency or partnership
The parties are not partners or joint venturers nor is JBL entitled to
act as Solucorp's agent nor shall Solucorp be liable in respect of any
representation act or omission of JBL of whatever nature
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SCHEDULE
Part 1
The Patent Applications.
Serial numbers: 08/339,784 and 705,794
Part ▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and the Republic of Ireland.
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EXECUTED AS A DEED )
for and on behalf of )
EPS ENVIRONMENTAL INC. )
Director /s/ ▇▇▇▇▇ Manteo
Director/Secretary /s/ ▇.▇. ▇▇▇▇▇▇
EXECUTED AS A DEED )
for and on behalf of )
▇▇▇▇ ▇▇▇▇▇ LIMITED )
Director /s/ ILLEGIBLE
Director /s/ ILLEGIBLE
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