EXHIBIT 10.9
ROYALTY AGREEMENT
Effective September 14th, 2000, Plugless Power Corp. (hereinafter "PPC"),
and ANUVU Incorporated (hereinafter "ANUVU"), (hereinafter collectively referred
to as the "Parties") agree as follows:
ss. 1. Type & Amount of Royalty. ANUVU shall pay royalties to PPC at the rate of
five and one-half (5 1/2%) percent for three (3) years beginning January, 2001,
said royalty to diminish 0.5% each hear thereafter until reaching a 2% royalty
which will remain in perpetuity on all fuel cell revenue that ANUVU generates,
or otherwise receives, whether ANUVU produces and sells such fuel cells or
licenses others to produce such fuel cells. This royalty will apply world-wide.
As such, the royalty payable by ANUVU to PPC shall diminish according to the
following schedule:
2001 5.5%
2002 5.5%
2003 5.5%
2004 5.0%
2005 4.5%
2006 4.0%
2007 3.5%
2008 3.0%
2009 2.5%
2010 2.0%
ss. 2. Royalty Reports. ANUVU shall make written reports to PPC quarterly,
within thirty (30) days after the last day of each March, June, September and
December in perpetuity stating in each report the number, description, and
aggregate Gross Selling Prices of the fuel cell stacks produced, sold, or
otherwise licensed to others to produce, during the preceding three (3)calendar
months and upon which royalty is payable as provided in ss.1, above. For
example, the first such report shall include all fuel cell stacks so produced,
sold, or otherwise licensed to others to produce, between January 1st, 2001 and
March 30th, 2001.
ss. 3. Royalty Payments. Concurrently with the making of each report, ANUVU
shall pay to PPC royalties at the rate specified in ss.1, above, on the fuel
cell stacks included in the report.
ss.4. Examination of Records. ANUVU will also permit its books and records to be
examined periodically to the extent necessary to verify the reports provided for
in this agreement, such examination to be make at the expense of PPC by an
independent auditor appointed by PPC who shall report to PPC only the amount of
royalty payable for the period under audit.
ss. 5. Royalties Assignable. The obligations of ANUVU to make reports, pay
royalties, and maintain records in respect to any subsisting license under this
agreement shall run in favor of any person or legal entity which is a successor
or assignee of PPC in respect to PPC's benefits under the agreements. The
royalties received by any party under this agreement shall pass to any assigns
for benefit of creditors of the licensed party, and to any receiver of its
assets, or to any person or corporation succeeding to its entire business in
fuel cell stacks as a result of sale, consolidation, reorganization, or
otherwise, provided such assignee, receiver, person, or legal entity shall,
without delay, accept in writing the provisions of this agreement and agree to
become in all respects bound thereby in the place and stead of the PPC, but may
not otherwise be transferred without the written consent of ANUVU.
ss.6. Notices. All necessary notices or correspondence required or permitted to
be given hereunder shall be in writing and shall be deemed to have been properly
given when hand delivered or when mailed postage prepaid by first class
certified mail, return receipt requested:
If to ANUVU:
Xx. Xxx Xxxxx, President & CEO
ANUVU Incorporated
0000-X Xxxxxxxxxx Xxxxx
Xxxxxx Xxxxxxx, Xxxxxxxxxx 00000
With a copy to:
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If to PPC:
Xx. Xxxxxx Xxxxxxxx, Secretary
Plugless Power Corp.
0000 0xx Xxxxxx - Xxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxx 00000
With a copy to:
Xxxxxxx XxXxxx Richmond, Esq.
Xxxxxxx XxXxxx Richmond, P.C.
0 Xxxxxx Xxxxxx
X.X. Xxx #000
Xxxxxx, Xxx Xxxxxxxxx 00000-0000
ss. 7. Public Announcements. Except as may be required by law, neither party
shall make any public announcement or filing with respect to the transactions
provided for herein without the prior consent of the other party.
ss. 8. Attorney's Fees. If any party shall bring an action to enforce any
provision of this Agreement, the prevailing party shall be entitled to
reimbursement for all reasonable legal fees and costs, incurred by such party in
enforcing the terms of this Agreement.
ss. 9. Benefit. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and assigns.
ss. 10. Force Majeure. Whenever a period of time is herein prescribed for the
taking of any action by either party hereto, such party shall not be liable or
responsible for any delays due to strikes, riots, acts of God, shortages of
labor or materials, war, governmental laws and regulations or any other cause
whatsoever beyond the control of such party.
ss. 11. Amendment and Waiver. This Licensing Agreement may be amended, or any
provision of this Licensing Agreement may be waived, provided that any amendment
or waiver will be binding on ANUVU only if such amendment or waiver is set for
the in a writing executed by ANUVU, and provided that any amendment or waiver
will be binding upon PPC only if such amendment or waiver is set forth in a
writing executed by PPC. The waiver of any party of a breach of any provision of
this Agreement shall not operate or be construed as a waiver of any other or
subsequent breach.
ss. 12. Construction & Applicable Law. THis Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of California as
if the Agreement were fully executed and performed under the laws of the State
of California so that the principles of conflicts of laws would not apply.
ss. 13. Severability. Should any provision of this Agreement be determined to be
invalid, illegal or unenforceable by a court of competent jurisdiction, then
such provision shall be amended by the parties hereto so as to make it valid,
legal and enforceable but keeping it as close to its original meaning as
possible. The invalidity, illegality or unenforceability of any provision shall
not affect in any manner the other provisions herein contained, which remain in
full force and effect.
ss. 14. Grammatical Usage. Throughout this Agreement, reference to the neuter
gender shall be deemed to include the masculine and feminine, the singular the
plural and the plural the singular, as indicated by the context in which used.
ss. 15. Headings: Context. The headings of the sections (xx.xx.) and paragraphs
(special character) contained in this Agreement are for convenience of reference
only and do not form a part hereof and in no way modify, interpret or construe
the meaning of this Agreement.
ss. 16. Counterparts. This Agreement may be executed in numerous counterparts,
all of which shall be considered one and the same agreement. For purposes of
this Agreement only, facsimile signatures shall be considered original
signatures.
ss. 17. Entire Agreement. This Agreement contains all of the terms agreed upon
by the parties with respect to the subject matter of this Agreement and
superseded all prior agreements, representations and warranties of the parties
as to the subject matter of this Agreement.
BY CAUSING THIS AGREEMENT TO BE EXECUTED HERE BELOW, THE PARTIES
ACKNOWLEDGE THAT THEY HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE
BOUND BY ITS TERMS AND CONDITIONS.
IN WITNESS WHEREOF, ANUVU and NLPC have executed this Agreement in multiple
duplicate originals.
AGREED TO & ACCEPTED BY: AGREED TO & ACCEPTED BY:
ANUVU Incorporated Plugless Power Corp.
By: Date By: Date
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Xxx Xxxxx Xxxxxx Xxxxxxxx
As its President & CEO As its Secretary
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Witness Witness
STATE OF CALIFORNIA STATE OF CALIFORNIA
County of SAN BERNARDINO, SS. County of SAN BERNARDINO, SS.
September __, 2000 September __, 2000
Xxx Xxxxx, President & CEO of ANUVU Xxxxxx Xxxxxxxx, Secretary of
Incorporated personally appeared before Plugless Power Corp. personally
me and acknowledged his execution of appeared before me and
the foregoing instrument to be the acknowledged his execution of
free act and deed of the corporation. the foregoing instrument to be
the free act and deed of the
corporation.
Before me, Before me,
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Notary Public Notary Public
My commission expires: My commission expires:
