EXHIBIT 10-n
TIRE RECYCLING TECHNOLOGIES CORPORATION, a wholly owned subsidiary of TITAN
TECHNOLOGIES, INC. (hereinafter referred to as Licensor), is holder of patents,
patent applications and technical experience based on the TRTM-60 Technology
which it has invented and developed to operating standard as the TIRE RECYCLING
PLANT/TRTM-60. For the purposes of this agreement, Licensor shall also be used
to refer to any Foreign Sales Corporation formed hereafter by Tlre Recycling
Technologies Corporation and/or Titan Technologies, Inc. for the purpose of
marketing and sublicensing the TRTM-60 technology pursuant to the terms hereof
and will stand in the place of full successor in interest to Tire Recycling
Technologies Corporation and/or Titan Technologies Inc. with respect to all
its/their rights and obligations hereunder.
THE ENVIRONMENTAL SOLUTION AGENCY, on the other hand is interested in
participating in this development and exploitation of LicensorOs inventions and
designs using the experience and rights to be made available by the Licensor.
On this basis the firms
TITAN TECHNOLOGIES, INCORPORATED and TIRE RECYCLING TECHNOLOGIES CORPORATION
0000 Xxxxxxxxxx XX
Xxxxxxxxxxx, Xxx Xxxxxx 00000
(Licensor) on the one hand
and
ENVIRONMENTAL SOLUTION AGENCY
0000 Xxxxxxx Xxxx.
X-00, Xxx 000
Xx. Xxxxx, Xxxxxxx 00000
(Licensee) on the other hand
conclude the following
LICENSE AGREEMENT
1. Subject of the agreement, definitions.
-----------------------------------------
The subject of this agreement is:
a) the domestic and foreign patent rights granted to or applied for in the name
of the Licensor or assigned to Licensor (hereinafter referred to as agreement
patent rights and listed in Schedule 1 attached to this agreement, which is to
be completed concurrently by the Licensor);
b) the technical and economic experience, knowledge, development results and
designs (hereinafter referred to as "Know-How" and listed in part in Schedule 2
attached to this agreement, which is to be completed concurrently by the
Licensor);
gained before and during the term of this agreement within the material field of
agreement.
Material field of agreement shall for the purposes of this agreement be taken to
mean the development, design and the constructing of TRTM-60 plant according to
the system as explained by the patent (s) applications attached as Schedule 1
and the material annexed hereto in Schedule 2.
2. Scope of the license.
------------------------
The Licensor hereby grants to the Licensee the exclusive right under agreement
patent rights and Know-How:
TO CONSTRUCT IN EUROPE AND SOUTH AFRICA TIRE RECYCLING PLANTS, TYPE TRTM-60.
TO GRANT SUBLICENSES OF THE AGREEMENT PATENT RIGHTS AND KNOW- HOW AFTER HAVING
RECEIVED THE PRIOR WRITTEN CONSENT OF THE LICENSOR.
Licensor moreover grants the nonexclusive right to construct and grant
sublicenses with respect to the aforesaid rights in Saudi Arabia and the United
Arab Emirates.
Transfer and assignment of the license right by the Licensee is excluded and
requires a special agreement between the parties.
3. Liability and guarantee for the agreement patent rights.
-----------------------------------------------------------
The Licensor declares that it has the entire disposal and full ownership of the
agreement patent rights and that it knows of no facts that could prejudice the
legal validity of the agreement patent rights.
The Licensor is in no event liable should such facts arise after the coming into
force of this agreement.
The Licensor does not accept any liability or guarantee for the industrial
exploitability of the invention on which the agreement patent rights are bases.
4. Fixed License Fee.
-----------------------
For the grant of the license in respect of the agreement patent rights and the
Know-How, Licensee will pay to the Licensor a fixed license fee as a lump sum at
the amount of USD $5,500,000.00.
This amount is payable 30 days after the order of a TRTM-60 plant by Licensee.
The fixed license fee in the aforesaid amount also has to be paid by the
Licensee in the event of any sales by it involving the grant of sublicenses.
5. Royalty on turnover.
-----------------------
The Licensee shall pay to the Licensor a royalty calculated according to the
turnover or gross sales of byproducts which the Licensee or Sublicensees
achieve.
The royalty on gross sales of the byproducts from all plants licensed hereunder
will be in the amount of 5%. The annual turnover will be determined on the basis
of the calendar year.
The aforesaid royalty will be computed by the Licensee twice yearly, once at
close of the six month period ending June 30 and once at the close of the six
month period ending December 31st for each such plant licensed or sublicensed
hereunder. This computation shall be completed no later than thirty days from
the close of each such period, and payment of the royalty over to the Licensor
shall be made no later than ninety days from the close of each such period.
6. Right of Audit.
------------------
The Licensor is authorized to have examined once annually by a certified public
accountant or auditing company chosen by Licensor all documents which are
necessary for computing the royalties.
7. Secrecy and exchange of Know-How.
------------------------------------
The parties to this agreement are bound to observe strict secrecy in respect of
all Know-How in the material field of the agreement. This also applies after
termination of this agreement.
The parties to this agreement agree to the reciprocal exchange of Know-How in
the material field of the agreement for their own use. For this purpose, each
party to this agreement can send after prior agreement up to 5 employees monthly
to the development, test, design, and constructing departments of the other, in
order to obtain information on questions which interest each such party
concerning the state of development, innovations and improvements developed by
the other party, and concerning other Know-How in the material field of the
agreement. Other possibilities of exchange of KnowHow remain reserved.
8. Period of validity and termination of the agreement.
-------------------------------------------------------
Subject to the following provisions this agreement remains in force until
expiration of the last agreement patent right or until terminated by mutual
consent of the parties hereto.
The Licensor can terminate the agreement at its sole option after 12 months from
the date of execution hereof, if the Licensee has not delivered a binding order
for one TRTM-60 plant, including acceptable proof of funding.
The Licensee can terminate the agreement at its sole option one year's notice as
of the end of the second calendar year following execution of this agreement.
Either party to this agreement can terminate the agreement without notice if the
conduct of the other party substantially undermines the basis of trust necessary
for this agreement. Further, the Licensor can terminate without notice, if the
Licensee is more than two months in arrears with the payment of License fees or
royalties.
9. Additional Conditions.
-------------------------
Place of performance is Albuquerque, New Mexico
Declarations of intention of legal nature such as notices, statements, demands,
approvals, consents or other communications must be sent by registered post to
be valid in law.
All communications are to be addressed to:
Licensor 0000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxxxxx, Xxx Xxxxxx 00000
Licensee 0000 Xxxxxxx Xxxxxxx
XX00, Xxx 000
Xx. Xxxxx, Xxxxxxx 00000
This is the entire integrated test of this agreement. No oral agreements or
representations have been made. Any set-off or retention against the claim for
license fees or royalties is excluded.
The ineffectiveness of one or more provisions of this agreement does not affect
the validity of the others. Each party to this agreement can demand that a new
valid provision be substituted which best achieves the economic purpose of the
ineffective provision.
All conditions of this agreement apply also to the legal successors, if any, to
the full rights of the parties to this agreement.
10. State Approval.
--------------------
Each party to this agreement will endeavor to the best of its ability to bring
about the granting of any government permits which in accordance with the laws
of its country may be required for this agreement.
11. Law to be applied and arbitration.
---------------------------------------
The law of the State of New Mexico shall be applied as regards interpretation of
this agreement and to the resolution of any disputes arising hereunder or from
the negotiation hereof.
Any disputes arising hereunder will be adjudicated in the courts of competent
jurisdiction, state and federal, of the State of New Mexico.
12. Binding version and coming into force.
-------------------------------------------
This agreement is drawn up and signed in English language.
For the rights and obligations of the parties to this agreement as well as for
the resolution of all ambiguities and interpretation of the provisions hereof,
the English version is exclusively binding.
This agreement comes into force after execution by the parties to the agreement
and granting of the necessary permits, if any, by the authorities.
Licensor TITAN TECHNOLOGIES, Licensee ENVIRONMENTAL SOLUTION
INC. and TIRE RECYCLING AGENCY
TECHNOLOGIES CORPORATION
--------------------------- -------------------------------
Xxxxxx X. Xxxxxx, President
Signed this 12th day of February 1996.
AMENDMENT
TO LICENSE AGREEMENT
dated February 12, 1996
entered into between
Titan Technologies, Inc.
hereinafter referred to as "Titan" and
ESA World Trade, Ltd.
hereinafter referred to as "ESA" as follows:
In amendment of the license Agreement on certain patent rights for the
construction and sublicensing for the Tire Recycling Plant Type TRTM 60, the
parties hereto agree that
1) The scope of the exclusive license agreed in the License Agreement (Paragraph
2) and in the side letter to License Agreement (Paragraph 5) shall be expanded
to North America and South America with the exception of any agreements or
negotiations executed or begun by Titan prior to October31, 1996.
2) For the construction of all TRTM-60 plants to be sited in North America and
South America the lump-sum license payment in the amount of US $5,500,000.00
shall be divided and paid as follows.
a) an amount of US $2,500,000.00 as license fee for the certain patents
proprietary to Titan and a marketing markup to TitanOs FSC, to be allocated as
$2,000,000.00 for the license fee and $500,000.00 as the marketing markup, the
full sum of which is to be paid to TitanOs FSC for any sales of plants outside
the United States and otherwise directly to Titan.
b) an amount of US $2,500,000.00 to ESA World Trade, Ltd, IBC, as a marketing
fee.
c) an amount of US $500,000.00 to Xxxxxxx Investor Services, Inc., as an
Incentive Fee.
3) The Royalty on turnover as agreed in the License Agreement (Paragraph 5)
amounts to 7.5% (seven and one-half percent) of the gross sales of the
byproducts. The Royalty shall be split as follows:
a) FSC 5.0 % (five percent) of the gross sales of by-products,
b) ESA World Trade, Ltd., 2.5% (two and one-half percent) of the gross sales of
by-product.
4) All other terms and conditions of the License Agreement and the side Letter
to the License Agreement remain unchanged and in full force and effect.
ESA World Trade, Ltd Titan Technologies, Inc.
--------------------- ---------------------------
Xx. Xxxxx Xxxxxxx, VP Xxxxxx X. Xxxxxx, President
776-95-1-2.doc
SIDE LETTER
TO THE LICENSE AGREEMENT
dated February 12, 1996
entered into between
Titan Technologies Corp.
hereinafter referred to as "TITAN" and
Environmental Solution Agency
hereinafter referred to as "ESA" as follows:
In amendment, alteration and/or modification of the license agreement on certain
patent rights for the construction and sub-licensing for the Tire Recycling
Plant Type TRTM-60, the parties hereto agree that
1) The lump-sum license payment at the amount of US$ 5,500.000,Dfor the first
plant in Austria (Pilot Plant) shall be shared and paid as follows:
a) an amount of US$ 500.000,- as license fee for that certain patents
proprietary to TITAN, to through its wholly owned foreign sales subsidiary to be
formed (hereinafter referred to as ,,FSCO),
b) an amount of US$ 1,000.000,- as marketing xxxx-up to FSC,
c) an amount of US$ 4,000.000,- to ESA World Trade Limited, IBC, as marketing
fee.
2) For the construction of all other TRTM-60 plants to be sited in Europe,
Australia, New Zealand and South Africa the lump-sum license payment at the
amount of US$ 5,500.000,- shall be divided and paid as follows:
a) an amount; of US$ 1,500.000, as license fee for the certain patents
proprietary to TITAN to FSC,
b) an amount of US$ 1,000.000, as marketing xxxx-up to FSC,
c) an amount of US$ 3,000.000, to ESA World Trade Limited, IBC, as marketing
fee.
3) The royalty on turn over as agreed in the license agreement (paragraph 5.)
amounts to 5% (five percent) of the gross sales of the by-products. The royalty
shall be split as follows:
a) FSC 3,5% (three point five percent) of the gross sales of by-products
b) ESA World Trade Limited, IBC, 1,5 % (one point five percent) of the gross
sales of by-products
4) For the efforts connected with the implementation of the TRTM-60 project in
Europe the President of World Trade Limited, IBC, Mr. Xxxxx Xxxxxxx, and his
Austrian executive Vice-President, Xx. Xxxxx Xxxxxxx, is herewith granted the
option to buy 1,000.000 shares each of Titan Technologies Corp. at a price of
US$ .75 per share and an option to buy 1,000.000 shares of Titan Technologies
Corp. at a price of US$ 1 per share. This option is assignable to any corporate
body or natural person nominated by Mr. Xxxxx Xxxxxxx and Xx. Xxxxx Xxxxxxx.
This option will expire on February 12, 1997, if not exercised in writing.
5) The scope of the exclusive license as agreed in the license agreement
(Paragraph 2.) shall be Europe, Australia, New Zealand and South Africa.
6) The license agreement shall be renewable on a yearly basis by giving written
notice six month before end of the year.
The licensor, TITAN, waives its right to termination of the licensee agreement
for five years go that the agreement can be terminated at December 31, 2001, the
earliest.
In any event, the license agreement becomes permanent, i.e. until expiration of
the last agreement patent right, if licensee, ESA, has solicited three binding
orders for TRTM-60 plants.
----------------------------- --------------------------
Environmental Solution Agency Titan Technologies, (TRTC)
Xxxxx Xxxxxxx, vice-President Xxx Xxxxxx, President
EXHIBIT 10-o
EXCLUSIVE MARKETING AND LICENSING AGREEMENT
BY AND BETWEEN DOWON COMPANY, LTD.,
AND TIRE RECYCLING TECHNOLOGIES CORPORATION
THIS EXCLUSIVE MARKETING AND LICENSING AGREEMENT (hereinafter referred to as the
Agreement) is entered into by and between DOWON COMPANY, LTD., (hereinafter
referred to as DOWON), a corporation of the Republic of Korea, and TIRE
RECYCLING TECHNOLOGIES CORPORATION (hereinafter referred to as TRTC), a
corporation of the State of New Mexico, USA.
WITNESSETH:
WHEREAS, TRTC is the exclusive proprietor and holder of certain tire recycling
technology named the TRTM-60 Tire Recycling Process;
WHEREAS, TRTC and DOWON, for their mutual benefit intends to enter into an
exclusive marketing and licensing agreement and a covenant to joint venture;
NOW THEREFORE, with mutual valuable consideration which is contained in this
agreement and is acknowledged by both parties, the parties hereto agree as
follows:
DEFINITION:
A. EXCLUSIVE MARKETING RIGHT: A right which only the DOWON herein can exercise
and from which ALL OTHERS, including the TRTC, are prohibited directly or
indirectly from exercising.
B. SALES AND MARKETING: The act or process of selling and merchandising the
machine known as the TRTM-60 Tire Recycling Process(hereinafter referred to as
TRTM-60), which is inclusive of all related equipment and or products derived by
the TRTC from TRTM-60.
C. PRODUCT: Any or all material and substances produced by or derived from
machine, inclusive of but not limited to the following: (1) CARBON BLACK, (2)
OIL, (3) OIL PRODUCTS, (4) STEEL, and to the EXCLUSIVE RIGHT of any other
substances or materials that the machine may now or during the life of this
Agreement produce through research and development.
1 EXCLUSIVE MARKETING RIGHTS AND LICENSING AGREEMENT:
TRTC hereby grants and DOWON is hereby granted both exclusive marketing and
manufacturing rights to manufacture, market, sell, maintain repairs and other
necessary services, and distribute TRTM-60, including all related equipment,
which includes, but is not limited to, catalysts, starters, and subsequent
modifications thereof.
A. TERRITORY: This right and agreement shall comprise the continent of Asia,
which shall include the list of countries attached hereto as Exhibit A.
B. CONSIDERATION: DOWON shall deliver and pay to TRTC a one time licensing fee
in the amount of FIVE HUNDRED THOUSAND AND NO/100 DOLLARS ($500,000.00 U.S.) per
each TRTM-60 sold. The amount shall be paid in accordance with Section 6 of this
Agreement. This license fee may be renegotiated at two (2) year intervals from
the date hereof. In addition, a yearly use fee will be payable directly to TRTC
by each purchaser of a plant from DOWON, and TRTCs duty to provide and replenish
Starter and Catalyst for each such purchaser will be made contingent upon
payment of such use fee. The amount of use fee will be negotiated by DOWON and
TRTC on a transaction by transaction basis. The aforesaid license and use fees
are in payment for the right to use TRTCs technology in plant sales by DOWON
within the scope of its territorial grant of marketing and manufacturing rights
and not in consideration for any business activities conducted in the Republic
of Korea. TRTC maintains no business or physical presence in the Republic of
Korea, and all sums received by TRTC from DOWON hereunder are merely in
furtherance of this Agreement and its purposes. Each party shall bear and be
liable of its own taxes due against them under the laws of the Republic of
Korea. If required, DOWON shall be responsible for withholding and paying over
to the appropriate tax authorities any and all withholding taxes which are
assessed on TRTC. In this case, DOWON shall provide proof to TRTC of its
withholding and payment of any such taxes.
C. REPORTING. DOWON will report to TRTC on a regular basis and at least
quarterly as to the status of all current negotiations and material transactions
and will provide TRTC with copies of all sales contracts in their original
language and in English translation.
2 COVENANT TO JOINT VENTURE When TRTC has executed. agreements to sell the first
five (5) TRTM-60s, DOWON and TRTC shall form a new corporation (hereinafter
referred as the NEWCORP), which shall have the exclusive marketing rights to the
rest of the world, SPECIFICALLY EXCLUDING ASIA. NEWCORPs outstanding shares
shall be equally held by the parties and all shares distributed shall be issued
equally between the parties.
A. BOARD OF DIRECTORS. NEWCORP shall have a Board of Directors consisting of
five (5) directors, three (3) of whom shall be appointed by TRTC and two (2) of
whom shall be appointed by DOWON.
B. INITIAL PRINCIPAL OFFICE. The initial principal place of NEWCORP shall be the
offices of TRTC.
C. DISTRIBUTION OF GROSS INCOME. Upon formation of NEWCORP, all marketing income
derived from TRTM-60 purchases will be payable to NEWCORP. From each such
transactions, a sum of no less than FIVE HUNDRED THOUSAND AND NO/100 DOLLARS
($500,000.00) will allocated to NEWCORP as a xxxx up in consideration for its
marketing activities, and, if the negotiated price warrants an increase, it is
the intention of the parties hereto to increase the marketing xxxx up allocation
to NEWCORP.
D. TERMINATION OF TRTCS MARKETING RIGHTS. Immediately upon the full execution
the agreements to sell first five (5) TRTM-60s, TRTC shall stop any and all
marketing and sales activities.
3. DISTRIBUTION OF INCOME FROM FIVE (5) TRTM-60S SOLD BY TRTC. The parties
hereto acknowledge that TRTC has been engaged in the marketing of TRTM-60 on an
independent basis during the period the arrangement embodied in this Agreement
was being negotiated. TRTC does hereby agree that it will share all income
inuring to it from the first five (5) TRTM-60s sales derived from the aforesaid
marketing activity on an equal basis after deduction of all marketing expenses
heretofore incurred by TRTC. As a matter of confirmation, TRTC shall provide and
disclose any contracts, agreements, financial documents, and credit history of
any purchasers, if available.
A. CONDITIONS PRECEDENT. As conditions precedent to TRTCs obligations hereunder,
DOWON agrees that it will dedicate all sums received pursuant to this Subsection
to the payment of certain operating expenses, including but not limited to FIFTY
PERCENT (50%) of all marketing expenses incurred by TRTC from the date hereof,
which expenses will include THIRTY PERCENT (30%) of TRTCs operating overhead to
a maximum amount of FORTY-FIVE THOUSAND AND NO/100 DOLLARS ($45,000.00) per
annum and such additional direct marketing expenses as DOWON and TRTC jointly
agree are reasonable and necessary to effectuate the terms of this Agreement.
All additional operating expenses to be paid hereunder will be more fully set
out in a separate protocol which is incorporated by reference herein. Until
DOWON has paid all the aforesaid expenses in full, TRTC will pay FIFTY PERCENT
(50%) of all marketing income inuring to it from the first five (5) TRTM- 60s
sales into an Escrow Account to be administered by a third party from which
funds can be disbursed upon notification by TRTC to the Escrow Agent in order to
enable DOWON to make payments of the operating expenses payable hereunder.
4. TERMINATION. Provided that the parties continue to meet all obligations as
set out hereunder, this Agreement shall continue indefinitely. In the event
either party to this Agreement fails to meet its obligations hereunder, the
other party at its sole discretion may declare a default by providing written
notice hereof to the defaulting party who will have sixty (60) days from receipt
of such notice to cure said default. If such default is not cured within the
prescribed time period, all marketing and manufacturing rights shall revert back
to TRTC and the affairs of NEWCORP shall be wound up. Termination shall not
cancel any existing and accrued though unpaid obligations of any of the parties
hereto.
5. ASSIGNMENT. Any rights, agreements, and conditions of this Agreement is not
assignable or transferrable by either party directly or indirectly without the
written consent of the other party, which shall not be unreasonably withheld.
6. LICENSING FEE. For each payment received by DOWON from its customer for
TRTM-60 sold, DOWON shall remit the corresponding proportion of the License Fee
to TRTC within thirty (30) days of receipt of such payment from the customer.
The License Fee payment to TRTC shall strictly adhere to the contract entered
into by and between DOWON and the customer. As a matter of example, when DOWON
receives one hundred percent (100%) of the total price of TRTM-60 on the date of
the execution of the contract from the customer, DOWON shall be obligated to pay
one hundred percent (100%) of the License Fee within thirty (30) days of the
date of contract. If DOWON receives fifty percent (50%) of the total contracted
price on the date of the execution of the contract, then DOWON shall be
obligated to only pay fifty percent (50%) of the total price with thirty (30)
days of the date of the contract. The remaining fifty percent (50%) of the
Licensing Fee shall be paid within thirty (30) days of completion and full
operation of TRTM-60. In any case, the final payment of the initial license fee
payable to TRTC hereunder will be made by no later than thirty (30) days from
the date of completion and full operation of TRTM-60 by DOWON pursuant to a
sales contract. DOWON shall promptly disclose documents on all sales of TRTM-60,
including payment schedule provisions and any other information requested by
TRTC on the payment terms of each sale of TRTM-60.
7. WARRANTIES. TRTC warrants that it is the sole and exclusive and the
originator of TRTM-60.TRTC agrees to indemnify and hold DOWON harmless from any
claim arising from alleged infringements by TRTC or from DOWONs use of the
TRTM-60 technology.
All TRTC's warranties provided to purchasers of TRTM-60 from DOWON under Section
1 hereof shall be the sole responsibility of DOWON which shall indemnify and
hold TRTC harmless from any liability arising from any alleged breaches of
warranty. TRTC shall indemnify DOWON for any liabilities incurred by DOWON as a
result of any damages caused by any design, construction, equipment defects and
any other defects manufactured or supplied by TRTC, specifically, but not
limited to, Catalyst and Starter, in the TRTM-60 tire recycling process.
All modifications to the existing design of TRTM-60 made by either party hereto
will be disclosed to the other party, and the right to patent such modnification
will automatically be vested in the party to whom the modification has been
disclosed for any country within the territorial scope of its manufacturing
rights.
8. CONFIDENTIALITY. All information of whatever nature, whether technical or
business, provided by one party to this Agreement to the other party shall be
held in the strictest confidence and shall not be divulged to any other person
or entity without the prior written consent of the party providing the
information. Disclosure of such information to a third party without consent of
both parties shall be a breach of this Agreement. Should either party hereto
divulge such information to a stranger to this Agreement without the partys
prior written consent, the party at fault shall pay liquidated damages to the
other party in the amount of TWENTY MILLION AND NO/100 DOLLARS ($20,000,000.00)
and such other damages as may be proven thereafter. The parties hereto agree to
insert similar penalties in all sales contracts negotiated by them hereafter.
9. ENTIRE AGREEMENT. This Agreement is the complete and exclusive statement of
mutual promises and consideration of the parties and supersedes and cancels any
previous written and oral agreements and communications relating to any matter
which is the subject matter of this Agreement.
10. FORCE MAJEURE. Neither party shall be liable to the other party for
nonperformance or delay in performance of any of its obligation under this
Agreement due to causes reasonably beyond its control including fire, flood,
strikes, labor troubles or other industrial disturbances, unavoidable accidents,
governmental regulations, riots, and insurrections. Upon the occurrence of such
a force majeure condition the affected party shall immediately notify the other
party with as much detail as possible and shall promptly inform the other party
of any further developments. Immediately after the causes is removed, the
affected party shall perform such obligations with all due speed.
11. FULL FORCE AND EFFECT. In the case where any of the provisions of this
Agreement is held by a court or other tribunal of competent jurisdiction to be
unenforceable, the remaining portions of the Agreement shall remain in full
force and effect.
12. ATTORNEYS FEES. In the event of any litigation arising hereunder or from the
negotiation hereof, the losing party shall pay to the prevailing party its
attorney fees and all expenses in presenting or defending any claim submitted.
13. MODIFICATION. This agreement may not be modified in any manner except by a
written agreement duly executed by the persons authorized to execute agreements
on behalf of the parties.
14. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New Mexico.
15. ARBITRATION. Any dispute arising or by virtue of this Agreement or any
difference of opinion between the parties hereto concerning their rights and
obligations under this Agreement, shall be finally resolved by arbitration. Such
arbitration proceedings shall be in accordance with the applicable rules of
arbitration of the American Arbitration Association. The arbitration shall be
conducted by a panel of three arbitrators, one of whom will be chosen by each
party and the third by mutual agreement of the arbitrators selected by the
parties. The decision of the arbitration proceedings shall be final and binding
upon both parties, provided, however, that any dispute subject to final and
binding arbitration does not affect TRTCs rights to its proprietary technology.
16. NON-WAIVER. The parties hereto agree that failure to exercise or delay in
exercising any right, power, or privilege under this Agreement on the part of
either party shall not operate as a waiver of any right, power or privilege
under this Agreement. The parties also agree that no single or partial exercise
of any right under this Agreement shall preclude further exercise of such a
right.
17. NOTICE. All notices shall be delivered via certified mail to the following
addresses of each party:
Manufacturer:
Tire Recycling Technologies Corporation
0000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxxxxx, Xxx Xxxxxx 00000
Marketer:
DOWON Company, Ltd.
000-0, Xxxxxxxx-Xx
Xxxxx-Xxxx, Xxxxxxxxx-Xxx
Xxxxx-Xxx, Xxxxx 363-930
copy to:
Xxxxxx X. Xxx
Attorney at Law
00000 X. Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
[THIS SPACE INTENTIONALLY LEFT BLANK.]
[EXECUTION ON THE FOLLOWING PAGE.]
Witnessed and executed this the ______ day of March, 1996.
TIRE RECYCLING TECHNOLOGIES CORPORATION:
By:
-----------------------------------
Xxxxxx X. Xxxxxx
President
Sworn to and subscribed before me this
______ day of March, 1996.
--------------------------------------
Notary Public
My commission expires:
DOWON COMPANY, LTD.:
By:
-----------------------------------
X. X. Xxxxx
President
Sworn to and subscribed before me this
______ day of March, 1996.
--------------------------------------
Notary Public
My commission expires:
EXHIBIT 10-p
776-95-1-l.doc Final Version
MEMORANDUM OF AGREEMENT
-----------------------
entered into this day..25..of...April...1996
between
Titan Technologies Corp.,
3206 Xxxxxxxxxx, Xxxxxxxxxxx, Xxx Xxxxxx 00000, Xxxxxx Xxxxxx
hereinafter referred to as "TITAN" and
Environmental Solution Agency,
0000 Xxxxxxx, Xxxx Xxxxx, Xxxxxxx 00000, Xxxxxx Xxxxxx
hereinafter referred to as "ESA" on the one side and
SKODA Klatovy S.R.O.,
Domazlicka, 33901 Klatovy, Czech Republic
hereinafter referred to as "SKODA" on the other hand:
Recitals
WHEREAS, TITAN is the holder of patents, patent applications as listed in
Schedule ./1 and technical experience based on the TRTM-60 TECHNOLOGY which it
has invented and developed to operation standard as the "Tire Recycling Plant
TRTM-60".
WHEREAS, TITAN has gained technical and economic experience, knowledge,
development results and designs as listed in Schedule ./2 (hereinafter referred
to as "Know-How").
WHEREAS, ESA is the holder of the exclusive master-license for Europe,
Australia, New Zealand and South-Africa under which license ESA is entitled to
use and exploit the above mentioned patent rights and Know-How to construct Tire
Recycling Plants, type TRTM-60, and to grant sub-licenses for the construction
and for the operation of Tire Recycling Plants, Type TRTM-60;
WHEREAS, experts and delegates of TITAN, ESA and SKODA have examined two Tire
Recycling Plants, Type TRTM-60, already operating in South Korea to their full
contentment as to readiness and fitness for operation;
WHEREAS, TITAN, ESA and SKODA intend to further develop the patents and Know-How
and redesign the Tire Recycling Plant TRTM-60, to meet and comply with all
relevant standards of the European Community (hereinafter referred to
,,E.C.Standard) and national standards of those countries where plants will be
sited, construct a Tire Recycling Pilot Plant, ,,Type TRTM-60 E.C.-Standard, and
market and distribute the Tire Recycling Plant TRTM-60 E.C.-Standard in Europe
and South Africa.
WHEREAS, SKODA is an internationally renown and well-reputed constructor of
plants and civil engineering specialist.
NOW THEREFORE, the parties to this Agreement for the mutual benefits and
considerations contained herein have agreed as follows:
I.
Description of Works and Services of SKODA
------------------------------------------
1) For the works and services to be rendered under this Agreement, SKODA shall
act as General Contractor according to the Conditions of Contract for Works of
Civil Engineering Construction (,,FIDIC-Red Book) and the Conditions of Contract
for Electrical and Mechanical Works (,,FIDIC-Yellow Book) fully liable for
defects in the works, services, equipment, materials or other supplies or
inaccuracies or insufficiencies in technical documents even such defect result
from acts or omissions on part of itS sub-contractors.
2) SKODA as General Contractor shall
2.1) Redesign and improve the Tire Recycling Plant TRTM-60 as to meet and
conform to E.C.-Standard and comply with national regulation and standards
imposed by the national legislator of the country where the Tire Recycling Plant
will be constructed and operated;
2.2) Develop and construct a Tire Recycling Pilot Plant (E.C.-Standard) in
Austria under a FIDIC Contract to be concluded with the owner and/or operator
(employer) of the pilot plant. This Pilot Plant is intended to be sited in
Traiskirchen, Lower Austria, and shall comply with all applicable regulation and
statutes necessary for the continued operation of the Tire Recycling Plant
including, but not limited to, environmental laws, air pollution regulation,
employee protective ordinances, etc. SKODA shall liase with the competent
authorities and agencies and follow their advice and instructions so that the
Pilot Plant will be operated with all necessary permits and required approvals.
2.3) Assist in the obtaining and procurement of all necessary permits, approvals
and licenses for the construction and test-operation of the Tire Recycling Pilot
Plant, particularly provide the technical documentation and technical support as
required by the relevant Austrian Authorities and Agencies and thereafter SKODA
shall test-operate the Tire Recycling Pilot Plant for a period of one month.
2.4) Assist in the obtaining and procurement of all necessary permits, approvals
and licenses for the continued operation of the Tire Recycling Pilot Plant,
particularly provide the technical documentation and technical support as
required by the relevant Austrian Authorities and Agencies.
2.5) After taking-over to and acceptance of the Pilot Plant by the owner and/or
operator (employer), which shall not take place and will not be accepted until
all necessary permits and approvals for the continued operation of the Pilot
Plant have been obtained from the relevant Austrian authorities, maintain and
service the Pilot Plant on terms to be agreed upon.
II.
Support of Titan/ESA
--------------------
1) TITAN shall provide SKODA with and submit to SKODA all drawings,
specifications and technical documents in its possession referring to the two
Tire Recycling Plants in operation in South Korea as basis for the redesigning
and development to E.C.-Standard.
2) TITAN and ESA shall appoint and send two civil engineers, employed and paid
by TITAN and ESA, to the SKODA research and development site to assist SKODA in
the redesigning and development work and to guarantee continuity of development
and Know-How of the Tire Recycling Plant, Type TRTM-60 (E.C. Standard). All
costs, such as, but not limited to, salaries, travel-expenses, accommodation and
disbursement for the two TITAN/ESA appointed civil engineers shall be born by
TITAN/ESA.
3) TITAN and ESA shall assist SKODA and the owner and/or operator of the Tire
Recycling Pilot Plant in the application, obtaining and procurement of all
required permits, approvals and licenses or the construction, test operation and
continued operation under all relevant Austrian and E.C. Law, Statutes,
Ordinances, Regulations and other provisions to be obeyed.
III.
Patents and Right of Ownership
------------------------------
1) TITAN declares that it has the entire disposal and ownership for the patent
rights as listed in Schedule ./1 and and that it knows of no facts that could
prejudice the legal validity of those patent rights. In no event TITAN and ESA
shall be liable for facts arising after coming into force of this agreement
prejudicing the legal validity of those patent rights.
2) The final results of the redesign to and development of the Tire Recycling
Plant TRTM-60 E.C. Standard, including, but not limited to, copyright,
drawings,technical specifications and documentation, know-how and patentable
inventions shall become the exclusive property of TITAN.
3) All proprietary rights to designs, know-how, copyright, patentable inventions
or innovations, improvements, etc. shall be transferred and assigned to TITAN
without special payment, royalty or consideration other than agreed upon in this
Contract. TITAN shall be exclusively entitled to apply for and register any
patents or patent improvements or innovations resulting from the redesigning and
development of the Tire Recycling Plant Type TRTM-60 (E.C.- Standard). SKODA
shall sign all necessary applications and give its approval to the registration
of such patents or patent improvements on behalf of TITAN. SKODA shall assist
TITAN that its proprietary rights will be protected and registered as well as
defended against other claimants
IV.
Development and Construction Costs
----------------------------------
1) SKODA shall submit to TITAN and ESA an accurate and binding cost
account(FIDIC-tender) for each stage of redesigning and development as described
in II.2.1) - 2.5) (above) within 30 days after receipt of all technical
documentation on the Tire Recycling Plant TRTM-60 at disposal of TITAN and ESA.
2) The parties shall agree on general specifications and conditions of contract
for those works and services to be rendered by SKODA in the construction of all
Tire Recycling Plants Type TRTM-60 (E.C.-Standard) for which SKODA will act as
general contractor for the planning and construction for the Tire Recycling
Plants.
3) Furthermore, the parties shall agree on a fix sum to be paid to SKODA by the
owner and/or operator (employer) for the construction and works and services of
the general contract or SKODA. SKODA agrees to render the works and services
agreed upon between the parties to this agreement to any owner and/or operator
(employer) of a Tire Recycling Plant Type TRTM-60 (E.C.-Standard) nominated by
TITAN and ESA in Europe and South-Africa under the terms and conditions of the
FIDIC-Red Book and FIDIC-Yellow Book.
4) The fixed sum agreed for the works and services of SKODA according IV. 2) and
3) shall be indexed (price-adjusted) according the following formula:
V.
Time Schedule
-------------
The parties to this Agreement and the owner and/or operator of the Tire
Recycling Pilot Plant shall agree on a time and delivery schedule for each stage
of redesigning, development, construction and test operation according II. 2.1)
- 2.5) (above) within 30 days after receipt of the SKODA cost account according
IV. (above) by TITAN and ESA.
VI.
Service and Maintenance
-----------------------
1) SKODA shall enter into a Service and Maintenance Agreement with the operator
of the Tire Recycling Pilot Plant at fair market conditions and according
international service standards after completion of construction and test
operation of the pilot plant.
2) During service and maintenance, SKODA shall continue to suggest appropriate
improvements, innovations and alterations of the pilot plant in order to
increase machine reliability, product quality and cost efficiency of the Tire
Recycling Plant TRTM-60 (E.C. Standard). For such improvements, developments and
know-how, the provisions of III. (above) shall apply mutatis mutandis.
VII.
Warranty
--------
SKODA warrants remedy of all defects, insufficiencies, flaws etc. appearing
within one year after taking-over and acceptance of the Pilot Plant by the
operator at the sole expense of SKODA unless such defect directly results from
the evident mishandling or misoperation of the plant and/or its machines or
equipment by the operator.
VIII.
Retention money
---------------
Under the FIDIC-construction contract between SKODA and the owner and/or
operator of the Pilot Plant, the employer shall be entitled to retain 5 % of the
total price for the construction of the Pilot Plant during the warranty period
(defects liability period). SKODA can redeem the retention money by submitting
an abstract bank guarantee of an international top-rated bank institute in like
amount and with expiration date not prior to the end of the warranty period.
IX.
Consideration for SKODA
-----------------------
1) It is agreed between the parties that SKODA will not charge and invoice TITAN
and ESA or the owner and/or operator of the Tire Recycling Pilot Plant for
redesigning, development to E.C.-Standard, improvement and pertinent inventions
and/or innovations of the Tire Recycling Plant TRTM-60.
2) It is further agreed that SKODA as general contractor shall construct the
Tire Recycling Pilot Plant according the cost account as agreed under IV. and
under the FIDIC- construction contract to be concluded between SKODA and the
employer (owner and/or operator).
3) For the development work and services rendered by SKODA under this Agreement,
TITAN and ESA grant SKODA the exclusive right of first refusal to be employed as
general contractor for the construction of all Tire Recycling Plants, Type
TRTM-60 (E.C.-Standard) in Europe, Australia, New Zealand and South Africa, if
the SKODA redesigned and improved Tire Recycling Plant meets ,,E.C.-Standard and
relevant national standards, ordinances, regulations, etc. and contingent
E.C.-Rule is not contravened.
4) Furthermore, SKODA has shown interest to construct and operate a Tire
Recycling Plant, Type TRTM-60, in the Czech Republic. The parties will consider
licensing SKODA for the construction and operation of this Czech sited plant and
setting-off the fixed license fee and the royalty on the turn-over against SKODA
works and services for the redesigning and development to E. C.-Standard.
5) Finally, the parties consider future cooperation in the material field of
plastic recycling technology. TITAN has gained specific technical and economic
experience, knowledge and know-how and considers to cooperate with SKODA in the
further development and construction of a Plastic Recycling Pilot Plant on terms
similar to this Contract but still to be negotiated and agreed upon.
X.
Secrecy
-------
The parties to this agreement shall observe strict secrecy in respect to all
know-how and other proprietary information of the parties that might be of value
or interest to a third party not involved in the present contract unless the
express prior written approval of the other parties has been obtained. This
secrecy obligation remains in full forth after termination or expiration of this
agreement.
XI.
Period of validity of Agreement
-------------------------------
1) This agreement remains in force until expiration of the last patent right (as
listed in Schedule ./1) or until terminated by mutual consent of the parties
hereto.
2) Either party can terminate the agreement with immediate effect by a written
notice to all other parties to this agreement, if:
a) The conduct of a party to this agreement substantially undermines the basis
of trust necessary for the future cooperation under this agreement.
b) One party to this agreement is in breach of contract and, notwithstanding a
written notice to remedy the breach of contract situation within one month after
dispatch, continues to be in breach of contract.
XII.
Entirety
--------
This Agreement constitutes the entire agreement between the parties. Any
agreement, statements or any other circumstances of legal relevance made or
occurred before or at the conclusion of this Agreement, loose any effect with
the conclusion of this Agreement.
XIII.
Waiver
------
No act or omission by a party may be deemed to be a waiver of any rights, if
such a waiver is not declared explicitly and in writing.
XIV.
Nature of this Agreement
------------------------
1) This Agreement does neither constitute a company nor a similar relationship
nor an employment relationship.
2) None of the parties may act in the name or for the account of the other
party.
XV.
Form and Time-Limits
--------------------
1) No modification or amendment of this Agreement, including this clause, shall
be effective unless made in writing and at least signed by the party against
whom the modification or amendment shall be enforced.
2) Any communication to be given under this Agreement or according to the law
applicable shall be made in writing and by registered mail. The calculation and
the meeting of deadlines is determined by the post stamp of an Austrian or U.S.
post office.
3) All communication under this contract are to be addressed to:
TITAN: 0000 Xxxxxxxxxx, Xxxxxxxxxxx, Xxx Xxxxxx 00000, Xxxxxx Xxxxxx
ESA: 0000 Xxxxxxx, Xxxx Xxxxx, Xxxxxxx 00000, Xxxxxx Xxxxxx
SKODA: Domazlicka, 33901 Klatovy, Czech Republic
XVI.
Schedules
---------
The schedules to this Agreement constitute an integral part of this Agreement,
if this Agreement does not explicitly provide for otherwise.
XVII.
Severability
------------
1) Should any provision of this Agreement be or become illegal or unenforceable,
the remainder of this Agreement shall not be affected.
2) These provisions are automatically replaced by valid and enforceable
provisions, which achieve the intended effect as good as possible.
XVIII.
Governing Law
-------------
This Agreement including the issue of its valid conclusion and its pre- and
post-contractual effects is governed by the laws of Austria, except the Rules on
Private International Law (Conflict of Laws) and thereby any renvoi to other
jurisdiction or law shall be excluded.
Furthermore, the Conditions of Contract for Works of Civil Engineering
Construction (FIDIC-Red-Book) and Conditions of Contract for Electrical and
Mechanical Works (FIDIC-Yellow Book) of the Federation International des
Ingenieurs-Conseils apply unless this contract provides for otherwise. In case
of discrepancies between this agreement and the FIDIC-conditions of contract,
this agreement shall prevail.
XIX.
Place of Performance/Jurisdiction/Arbitration
---------------------------------------------
1) The place of performance is the site of the Pilot Plant in Austria.
2) Any disputes concerning this Agreement including the issue of its valid
conclusion and its pre- and post-contractual effects are exclusively and finally
decided and settled by an arbitration tribunal constituted and ruling under the
Rules of Conciliation and Arbitration of the International Chamber of Commerce
composed of three arbitrators appointed in accordance with the said Rules. Place
of arbitration shall be Paris. The language of the arbitration proceedings shall
be English language.
XX.
Binding version and Coming into Force
-------------------------------------
1) This contract - except for the mutual obligations and rights of II. 2.2) -
2.5) comes into force with execution by the parties to this agreement. The
mutual rights and obligation of II. 2.2) - 2.5) come into force with acceptance
of the SKODA tender according IV. 1) and agreement on the time-schedule X.xx the
owner and/or operator of the Tire Recycling Pilot Plant.
2) This agreement is drafted and signed in English language. A German version is
attached for convenience only. In case of ambiguity and for interpretation of
this Agreement, the English version is exclusively binding and authentic.
XXI.
Drafting of Subsequent Agreements
---------------------------------
To safeguard continuity of this Memorandum of Agreement with all subsequent
contracts to be drawn up and signed between the parties and the owners and/or
operators of Tire Recycling Plants Type TRTM-60 (E.C.- Standard) in Europe and
South-Africa, the parties appoint Xx. Xxxxxx Xxxxxxx (attorney at law) and Xx.
Xxxxxxxxx Xxxxx, LL.M. (attorney at law), or the drafting and further handling
of all subsequent agreements between the parties and prospective and future
owners and/or operators (employers) of the Tire Recycling Plant TRTM-60 (E
.C.-Standard).
_________________________ __________________________
TITAN ESA
________________________
SKODA
EXHIBIT 10-q
Addendum to Memorandum of Agreement
dated on 25th April, 1996
Ad Pkt IV/1
SKODA shall submit the binding cost account describe more fully in sub part
"IV/l" within 45 days.
Ad Pkt IV/4
The fixed sum cost account shall be denominated in US-Dollars.
The fixed price of the pilot plant shall be the basis for this calculation.
SKODA may inrease this price according the inflation rate of the Czech Republic,
but not more than 10 % (ten percent) annually.
Ad Pkt VII
SKODA warrants remedy of all mechanical defects .................
results form the principles of the technical solution, experience, knowledge and
development results and designes gained by TITAN and evident mishandling
............
Ad Pkt IX/5
5.
Furthermore, SKODA on base of this Memorandum of Agreement is sole producer and
supplier of technological equipment manufactured according to the documentation
of TITAN and redesigned by SKODA for territory mentioned in this Memorandum.
Point 5 was changed to point 6.
Ad Pkt X
This secrecy obligation remains in full forth after termination or expiration of
this agreement as long as the aforesaid patents are in effect or for a period of
twenty years, whichever period is longer.
_____________________ _______________________
TITAN ESA
_____________________
SKODA
EXHIBIT 10-r
IRREVOCABLE OPTION AGREEMENT
This Agreement is made and entered into this 10th day of June, 1996, by and
between ABTECH INDUSTRIES, L.L.C., and Arizona limited liability company
(AbTech), and TIRE RECYCLING TECHNOLOGIES CORPORATION, a New Mexico corporation
(TRTC).
RECITALS:
A. AbTech is the owner of certain technology (including patents pending)
and possesses certain know-how, trade secrets, methods and concepts relating to
the recovery of oil and other chemical-based spills which, when applied, cause
the absorption or adsorption of such spills (the Technology);
B. TRTC possesses certain technology, know-how, trade secrets, methods and
concepts enabling TRTC to construct equipment to enable the recycling of
absorbent and adsorbent materials and oil or other chemicals involved in a spill
(the Equipment) which Equipment must be specially designed and manufactured for
use in conjunction with AbTech's Technology and which can also be utilized to
recycle used motor oil when not engaged in spill related recycling; and
C. AbTech desires TRTC to develop and manufacture Equipment for use in
conjunction with the Technology on an exclusive basis, with the limitations set
out below and TRTC desires to grant to AbTech and its successors or affiliates
an irrevocable option to purchase the Equipment from it on such basis, all upon
the terms and conditions contained herein.
NOW, THEREFORE, in consideration of the premises and promises contained herein
the parties do hereby agree as follows:
1. Incorporation of Recitals. The Recitals hereinabove set forth are
incorporated by reference as if fully rewritten herein.
2. Grant of Perpetual Option. Provided that AbTech issues its purchase
order to TRTC no later than December 15, 1997, for the purchase of one unit of
TRTCs Equipment designed to meet AbTechs needs for the price and upon the terms
set forth in Exhibit A, TRTC grants to AbTech or its assigns the option to
hereafter purchase such additional Equipment (including that which may
incorporate any modifications or improvements which may be developed by TRTC
and/or AbTech or their affiliates) on an exclusive basis upon the same terms and
conditions provided, however, that in the event that TRTC desires to build and
operate a unit in an area which has not been designated as the exclusive
territory of AbTech or an affiliate or licensee of AbTech, and AbTech determines
in its sole and absolute discretion that it would be beneficial for TRTC or one
of its affiliates to operate a unit in such area, AbTech may permit such
operation of a unit upon such terms as may be mutually acceptable to the
parties. TRTC hereby covenants on behalf of itself, its successors, and its
assigns that it will not sell units or enter into any disposal or recycling
agreements with any competitor of AbTechs or other manufacturer of absorptive or
adsorptive materials used or intended to be used in the recovery of oil spills
without AbTechs consent in writing. All equipment manufactured by TRTC for use
in connection with the Technology shall comply with all state, federal or local
rules, regulations and codes, and TRTC shall be responsible for facilitating the
granting of any licenses or permits which may be necessary in order for AbTech
or its assigns to operate the unit(s).
3. Entire Agreement. This Agreement contains the entire understanding among
the parties and supersedes any prior understanding or written or oral agreements
among them respecting the subject matter hereof; provided, however, that neither
this Agreement nor the actions of the parties pursuant hereto shall in any way
affect nor diminish the scope or application of that certain Agreement dated
March 26, 1996, by and between the parties concerning, among other things the
disclosure and use of confidential information.
4. Governing Law. This Agreement shall be governed by and construed under
the laws of the State of Arizona.
5. Attorneys Fees. If either party institutes a suit against the other in
connection with this Agreement or its enforcement, the successful party to any
such action shall be entitled to recover from the other party reasonable
attorneys fees (not to exceed the actual attorneys fees incurred), witness fees
and expenses and court costs in connection with said suit, both at the trial and
appellate levels.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
ABTECH INDUSTRIES, L.L.C., TIRE RECYCLING TECHNOLOGIES
an Arizona limited liability company CORPORATION, a New Mexico corp.
By:_______________________________ By:_____________________________
Its:_______________________________ Its:_____________________________
EXHIBIT A
ABTECH COST ANALYSIS
A. PROCESS MATERIAL AND EQUIPMENT
Process Pipe Material .......... 82,000.00
Insulation ..................... 4,500.00
Specialty Sheet Cost ........... 9,000.00
Tank-Condenser #1 ...... 300 gal 1,560.00
Tank-Condenser #2 ...... 300 gal 1,560.00
Tank-Feeder Storage .... 300 gal 1,560.00
Tank-Burner Fuel Strge.. 300 gal 1,560.00
Tank-Gas Storage ............... 1,560.00
Feed Conveyor .................. 18,000.00
Reactor Chamber ................ 190,000.00
Hydraulic Unit ................. 65,000.00
Condenser #1 ................... 29,800.00
Condenser #2 ................... 29,800.00
Process Chiller ................ 20,000.00
Burner ......................... 32,500.00
1st Storage Transfer Pump ...... 1,950.00
2nd Storage Transfer Pump ...... 1,950.00
Seal Oil Transfer Pump ......... 1,950.00
Process Gas Pump ............... 36,800.00
Discharge Tank ................. 5,000.00
Shredders ...................... 250,000.00
Oil/Water Separator-Centrifuge . 20,000.00
Catalyst Feeder ................ 5,000.00
Conveyor-Feed .................. 3,000.00
Conveyor-Discharge ............. 3,000.00
Subtotal A ....... $ 817,050.00
B. SUBCONTRACTORS
Controls - PLC & Engineering 169,000.00
Controls - Hardware ........ 87,100.00
Reactor Construction ....... 124,000.00
Electrical - Power ......... 95,000.00
Electrical - Controls ...... 102,000.00
Project Development Cost ... 32,500.00
Engineering Cost ........... 100,000.00
Subtotal B ................. $ 709,600.00
C. LABOR
Fitter (Field)
Insulator ................. 6,000.00
Millwright ................ 9,000.00
Quality Control - Start Up 3,120.00
Project Supervisor - Piping 4,485.00
General Supervisor ........ 2,579.00
Project Manager ........... 24,000.00
Detailing ................. 4,500.00
Subtotal C ................ $ 101,624.00
D. LABOR RELATED
COST COST/MM TOTAL
Taxes & Insurance (Plbg/Pipe/lns) ....... 48,120.00 20% 9,624.00
Taxes & Insurance (PM/Eng/Sup) .......... 25,004.00 15% 3,751.00
Taxes & Insurance (Clerk/Detailer) ...... 4,500.00 13% 585.00
Safety Programs ..............1% of Labor 1,016.00
Fringes ......................9% of Labor 9,146.00
Small Tools ............................ 3,262.00 0.65 2,120.00
Rental Equipment ....................... 3,262.00 0.48 1,569.00
Detail Burden .......................... 160 HOURS 8.39 1,342.00
Subtotal D .............................. $ 29,153.00
E. MISCELLANEOUS
QUANTITY RATE COST
Trucks ........................ 8 Months 650.00 5,200.00
Car ........................... 1 Month 780.00 780.00
Job Shack ..................... 4 Months 1,950.00 7,800.00
Per Diem ...................... 58,968.00
Travel Expenses ............... 21 Months 1,300.00 27,300.00
Telephone ..................... 4 Months 975.00 3,900.00
Outside Rental ................ (Taxable) 10,602.00
Delivery Expense .............. 11,050.00
Subtotal E ............ $ 125,600.00
F. BID SUMMARY
Process material & Equipment 817,050.00
Subcontractors ............. 709,600.00
Labor ...................... 101,624.00
Labor Related .............. 29,153.00
Miscellaneous .............. 125,600.00
Total All Items .... $ 1,783,027.00
Xxxx-up ............ 1,200,000.00
Total Price ........ $ 2,983,027.00
The Total Price shall be payable one third upon the execution and delivery of
AbTechs purchase order, one third upon delivery and installation of the Unit(s)
and one third 30 days following the date upon which the Unit(s) becomes fully
operational.
In addition to the Total Price, TRTC shall also receive an on going royalty with
respect to each unit sold equal to 50% of the royalties received by AbTech from
its assigns from the recycling revenues generated by the use of such unit(s) to
recycle spill remediation products.
The Total Price set forth above shall also include all necessary technical
support and expertise to ensure successful construction, installation and
operation of the unit including site supervision, consultation and technical
training of the operational crews responsible for xxxxxxx and operating the
unit. TRTC shall also provide at its sole cost and expense during the operating
lifetime of the Units all maintenance, service, and adjustments to maintain the
Units in operating condition. TRTC represents and warrants that the price
allocated above for components integrated into the unit shall not exceed the
cost of same charged or allocated with respect to TRTCs sale of tire recycling
units, except for specialized processed pipe material and steel used in
fabrication of the Reactor Xxxxxxxx.
All manufacturers warranties on the component parts of the Unit(s) shall be
assignable and assigned to AbTech and/or its assignees. TRTC warrants that the
catalyst will process spill remediation products and the proper functioning of
the main processing chamber(s). The obligations of TRTC under this provision
will terminate in the event of improper operation of the Unit(s) by AbTech or
its assigns to the extent such improper operation adversely impacts the proper
operation of the Unit(s). Seller represents and warrants that each Unit shall be
capable of processing not less than __50__ tons of material per ___Day____.
EXHIBIT 10-s
OPTION AGREEMENT
THIS OPTION AGREEMENT is made as of the __4__ day of September, 19 96 (the
Effective Date) by and between Tire Recycling Technology Corporation, Inc., with
principal place of business at 0000 Xxxxxxxxxx, X.X., Xxxxxxxxxxx, Xxx Xxxxxx
00000 (TRTC), Adherent Technologies, Inc., with principal place of business at
00000 Xxxxxxx XX, Xxxxxxxxxxx, Xxx Xxxxxx 00000 (Adherent) and Fiberite, Inc.,
with principal place of business at 0000 Xxxx Xxxxxxxxxx Xxxxxx, Xxxxx, Xxxxxxx
00000 (Fiberite).
RECITALS
A. TRTC is engaged in the business of manufacturing and selling commercial
plants which recycle waste tires, using a proprietary process and methodology
developed by TRTC (the TRTC Core Technology). TRTC licenses the TRTC Core
Technology to the operators of these plants, subject to a payment of a royalty
relating to the sale from the plant of the various products produced and sold.
As of the Effective Date, TRTCs business is to manufacture large capacity
recycling plants incorporating the TRTC Core Technology and capable of
processing 100 tons or more of tires per day, and to sell those plants to be
operated by governments or individuals.
B. TRTC is also engaged in ongoing research and development of the TRTC
Core Technology for the purpose of modifying and enhancing the TRTC Core
Technology such that it may establish a technology for the commercial recycling
of the organic matrix composite materials in the Field, defined in Section 1.2
below (the TRTC Enhanced Technology). The TRTC research on plastics and other
composite recycling is being conducted through an arrangement with Adherent, a
research laboratory operated by Xxxxxx Xxxxxx. Xx. Xxxxxx is also a director of
TRTC.
C. Adherent has received contracts from the Department of the Army and from
the U.S. Air Force to apply to research and development of the TRTC Enhanced
Technology, including without limitation research on plastic and other composite
technology directed toward the depolymerization of carbon fiber reinforced
composite materials. In addition, Adherent has received a contract from the
Advanced Research Project Agency of the Department of Defense for research on
recycling scrap electronic components such as used computers, fax machines and
copiers.
GT\5537768-6
D. Fiberite is in the business of manufacturing, producing and distributing
pre-impregnated organic matrix composite materials (i) to the aerospace, marine
and leisure industry, (ii) to the industrial, electrical and automotive
industries, and (iii) to the military and commercial printed circuit board
industries.
E. Fiberite is interested in conducting market and other research for the
purpose of determining whether the TRTC Core Technology, as further developed
through the arrangement with Adherent into the resulting TRTC Enhanced
Technology, would be useful to Fiberite for the purpose of providing recycling
of certain organic matrix composite materials which may or may not be used by
Fiberite in its business. TRTC is interested in working with Adherent to
determine whether the TRTC Core Technology, as improved by Adherent into the
resulting TRTC Enhanced Technology under the contracts described above, would be
so useful in Fiberites business.
F. The parties desire to enter into an exclusive option arrangement, on the
terms and conditions described in this Option Agreement.
AGREEMENT
NOW, THEREFORE, the parties hereto agree as follows:
Article 1
Option
------
1.1 Grant of Option. TRTC hereby grants to Fiberite the exclusive right to
enter into good faith negotiations with TRTC for the purpose of establishing a
definitive business relationship or transaction, including, but not limited to,
a joint venture or license.
1.2 Field. The field (the "Field") of organic matrix composite materials
which are the subject of this Agreement is defined as follows:
a. composite materials manufactured and distributed to the aerospace,
marine and leisure industry, primarily reinforced with continuous fiber
materials (including but not limited to carbon, fiberglass and aramid),
including both thermoset and thermoplastic materials, but expressly excluding
non-preimpregnated unidirectional and woven fiberglass materials (including
without limitation wet filament winding or hand layup or sprayed parts);
GT\553776B- 6
b. short fiber and sheet molding compounds manufactured and distributed to
the industrial, electrical and automotive industries, primarily consisting of
graphite, glass, cotton and aramid; and
c. other composite materials and resins, manufactured and distributed to
the military and commercial printed circuit board industries.
1.3 Term of Option.
1.3.1 Option Period. The term of this option shall begin upon the Effective
Date and end on the date sixty (60) days after the Process Milestone Date, as
defined in Section 1.4.3 (the Option Period).
1.3.2 Negotiation Period. If the option is exercised pursuant to Article 2
below during the Option Period, the parties shall have a period of up to sixty
(60) days in which to negotiate in good faith to consummate a mutually
acceptable business relationship and/or transaction (the Negotiation Period).
1.4 Consideration for Option. TRTC grants this option to Fiberite in
consideration of the following mutual covenants:
1.4.1 TRTC Consideration. TRTC, and by execution hereof Adherent, hereby
agree to diligently conduct further research and development during the Option
Period for the purpose of enhancing the TRTC Core Technology such that it will
effectively operate to recycle organic matrix composite materials in the Field,
resulting in the TRTC Enhanced Technology.
1.4.2 Fiberite Consideration. Fiberite agrees during the Option Period (i)
to conduct marketing analysis and studies for the purpose of determining whether
a market exists for the recycled materials which result from recycling composite
materials in the Field using the TRTC Enhanced Technology, and the extent, if
any, to which a customer is willing to pay for such recycling services and/or
recycled materials, (ii) to conduct a technical evaluation of the quality
requirements of the recycled material, (iii) to determine the cost of starting
up such a recycling business and the negative carry required to be funded during
the start- up phase, and (iv) such other business analysis as Fiberite in its
discretion deems necessary or appropriate for the purpose of determining the
terms on which such a business can be operated effectively.
GT\5537768-6
1.4.3 Success Payment. Fiberite shall pay TRTC a success fee of $25,000 on
the later of (i) February 28, 1997, or (ii) such date (the Process Milestone
Date) that it demonstrates, to Fiberites reasonable satisfaction, the ability to
recycle 100 pounds of composite material per hour using the TRTC Enhanced
Technology.
Article 2
Exercise of Option
------------------
2.1 Results of Option Period Research. On or before February 28, 1997, TRTC
shall deliver to Fiberite evidence satisfactory to Fiberite that TRTC, through
research conducted by Adherent or otherwise, has developed the TRTC Enhanced
Technology. Without limiting the foregoing, TRTC shall provide Fiberite with the
following:
a. the functional specifications of the Equipment developed by TRTC,
through Adherent, embodying the TRTC Enhanced Technology;
b. he testing parameters and testing protocol employed by TRTC, through
Adherent, for the purpose of determining the efficacy of the TRTC Enhanced
Technology in recycling organic matrix composite materials in the Field,
together with the results of such tests;
c. samples of the recycled material resulting from the TRTC Enhanced
Technology;
d. cost of the Equipment embodying the TRTC Enhance Technology; and
e. such other information as TRTC shall deem necessary or appropriate and
such other information as Fiberite shall reasonably request. Without limiting
the foregoing, Fiberite may request TRTC to conduct demonstrations of the TRTC
Enhanced Technology and the Equipment.
2.2 Exercise of Option. On or before the expiration of the option, and
after reviewing the information and demonstrations (if any) described in Section
2.1, Fiberite in its sole discretion, shall deliver written notice to TRTC
either (i) terminating this Agreement, effective immediately upon delivery of
such written notice, or (ii) providing notice of intent to exercise option and
to commence the negotiations described in Section 1.1. In the event Fiberite
elects to
GT\553776-6
exercise the option, Fiberite shall accompany such written notice of intent to
exercise with a copy of the results of the marketing analysis which Fiberite
conducted during the Option Term, as described in Section 1.4.2.
2.3 Good Faith Negotiations. Promptly upon receipt of notice of intent to
exercise the option and the information described in Section 2.2 above, TRTC
shall meet with Fiberite. The parties agree to negotiate in good faith during
the Negotiation Period the final terms and conditions of a definitive business
relationship and/or transaction.
The parties shall have the Negotiation Period during which to finalize the final
terms and conditions in principle of definitive agreements. TRTC and Fiberite
shall thereafter additionally execute, acknowledge and deliver any and all other
documents necessary or appropriate to carry out the terms and conditions of such
definitive agreements. If the parties are unable to reach agreement mutually
satisfactory to both parties after good faith negotiations by the expiration of
the Negotiation Period, this Option will automatically and immediately terminate
(except for the provisions of Article 5), unless extended expressly in writing
by document executed by both parties.
Article 3
Failure to Exercise Option
--------------------------
3.1 Termination. Upon delivery by Fiberite of notice of termination of this
Agreement or upon the failure of Fiberite to elect to exercise the option on or
before the expiration of the Option Period, this option and the rights of
Fiberite shall automatically and immediately terminate without further notice.
Thereafter, Fiberite agrees that it will execute, acknowledge and deliver to
TRTC, within ten (10) days from request therefor, release of option or any other
document reasonably requested by TRTC to verify the termination of this option.
Notwithstanding the foregoing, the provisions contained in Article 5 shall
survive the termination of the other provisions of this Option Agreement.
Article 4
No Shop and Confidentiality
---------------------------
4.1 No Shop From the Effective Date through the expiration of the Option
Period, and if Fiberite exercises the option as set forth in Section 2.2, then
through the expiration of the Negotiation Period, TRTC and Adherent, and each of
them, agree that neither
GT\553776-6
they, nor any of their affiliates, nor any of their respective officers,
directors, employees, representatives or agents, shall discuss with any other
party (other than Fiberite and other than for the purpose of developing the
information more particularly described in Section 2.1 above), the concept of
forming a corporation or other entity as a joint venture for the purposes of
exploiting the TRTC Core Technology in the Field; the licensing of the TRTC Core
Technology (or the TRTC Enhanced Technology, or any component thereof) in the
Field; the development of equipment, the sale or leasing or other use of
equipment, using the TRTC Enhanced Technology, or any component of the TRTC Core
Technology in the Field; or otherwise discussions of any nature for the purpose
of granting any such third party the ability to recycle organic matrix composite
materials in the Field.
4.2 Confidentiality. No announcement concerning the transactions
contemplated by this Option Agreement may be made by either Fiberite, on the one
hand, or TRTC or Adherent, on the other, without the prior approval of the
other, except as may be required by law. The definitive agreements more
particularly described in this Option Agreement will contain similar
confidentiality restrictions. Nothing in this paragraph, however, is to be
construed as precluding the parties to this Option Agreement from commencing and
conducting the research and analysis described in Section 1.4.
Article 5
Right of First Refusal
----------------------
If at any time following the termination of this Option Agreement, TRTC or
Adherent shall enter into a written agreement providing for the license, sale,
joint venture, further development or other action with the intent to further
exploit the TRTC Core Technology or the TRTC Enhanced Technology within the
Field, then Fiberite shall have a right of first refusal to enter into such
transaction with TRTC and/or Adherent on the same terms and conditions. Fiberite
must give TRTC and/or Adherent notice of its election to exercise this right of
first refusal within thirty (30) days of receipt of written notice of the
proposed transaction accompanied by copies of the executed definitive agreements
and additional technical and/or marketing data provided to the prospective party
to the transaction. In the event Fiberite does not elect to exercise the right
of first refusal, TRTC and/or Adherent shall have a period of sixty (60) days to
consummate the transaction on the same terms and conditions contained in the
documents delivered to Fiberite. If such transaction is not consummated within
such sixty (60) day period, any proposed transaction must be once again offered
to Fiberite as set forth above.
GT\5537768-6
Article 6
Miscellaneous
-------------
6.1 Assignment. Fiberite, Adherent or TRTC may not assign this option
without the prior written consent of the other, which consent shall not be
unreasonably withheld; provided, however, that Fiberite shall have the right, in
its sole discretion, to assign this Agreement in connection with the sale of
substantially all of the assets of its business.
6.2 Notices. Unless otherwise specifically provided herein, all notices,
demands or other communications given hereunder shall be in writing and any and
all such items or payments shall be deemed to have been duly delivered upon
personal delivery or as of the third business day after mailing by United States
mail, certified, return receipt requested, postage prepaid, addressed as
follows:
If to TRTC, to: Tire Recycling Technology Corporation
3206 Xxxxxxxxxx, N.E.
Xxxxxxxxxxx, Xxx Xxxxxx 00000
If to Fiberite, to: Fiberite, Inc.
0000 Xxxx Xxxxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
With a copy to: Xxxxxxxxx Xxxxxx, Esq.
Xxxx Xxxx Xxxx & Freidenrich
0000 Xxxxxxxxx Xxxxx, Xxx. 0000
Xxx Xxxxx, Xxxxxxxxxx 00000
If to Adherent, to: Adherent Technologies, Inc.
00000 Xxxxxxx XX
Xxxxxxxxxxx, Xxx Xxxxxx 00000
or to such other address or to such other person as any party shall designate to
the others for such purpose in the manner hereinabove set forth.
6.3 Time of Essence. TRTC and Fiberite hereby acknowledge and agree that in
light of the market conditions, the importance to the parties of the
consummation of the transaction contemplated herein, TIME IS STRICTLY OF THE
ESSENCE with respect to each and every
GT\553768-6
term, condition, obligation and provision herein and the option relating hereto,
and the failureto TIMELY AND FULLY perform or satisfy any of the terms,
conditions, obligations or provisions of this Agreement shall constitute a
default hereunder.
6.4 Entire Agreement. This Agreement contains the entire agreement between
the parties relating to the transactions contemplated hereby and all prior or
contemporaneous agreements, understandings, representations and statements, oral
or written, are merged herein.
6.5 Attorneys Fees. Should any party hereto employ an attorney for the
purpose of enforcing or construing this Agreement, or any judgment based on this
Agreement, in any legal proceeding whatsoever, including insolvency, bankruptcy,
arbitration, declaratory relief or other litigation, including appeals and
rehearings, the prevailing party shall be entitled to receive from the other
party or parties thereto reimbursement for all attorneys fees and all costs,
including but not limited to service of process, filing fees, court and court
reporter costs, investigative costs, expert witness fees, and the cost of any
bonds, whether taxable or not. The prevailing party shall be entitled to include
such reimbursement in any judgment or final order issued in that proceeding, or
to maintain a separate action therefor. The prevailing party means the party
determined by the court to most nearly prevail and not necessarily the one in
whose favor a judgment is rendered.
6.6 Binding Effect. Subject to any provisions concerning assignment
contained in this Agreement, this Agreement shall be binding upon and inure to
the benefit of the respective heirs, personal representatives, successors and
assigns of the parties hereto.
6.7 Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of Arizona.
6.8 Counterparts. This Agreement may be signed in counterparts.
GT\553768-6
IN WITNESS WHEREOF, the parties have executed this Agreement on the date first
above written.
TRTC:
TIRE RECYCLING TECHNOLOGY
CORPORATION
By:
----------------------
Its:
---------------------
Adherent:
ADHERENT TECHNOLOGIES, INC
By:
----------------------
Its:
---------------------
Fiberite:
FIBERITE, INC.
By:
----------------------
Its:
---------------------
GT\553768-6
EXHIBIT 10-t
PROMISSORY NOTE
$112,000.00 Date: September 24. 1996
For value received, the undersigned Titan Technologies, Inc. and TRTC
(collectively the Promisor) each as principal, jointly and severally, promise to
pay to the order of ESA World Trade, Ltd. (the Payee.), at 000 Xxx Xxxxxx 0xx
Xxxxx, Xxxxx 000 P.O. Box N 9306, Nassau, Providence N 9306, Bahamas, (or at
such other place as the Payee may designate in writing) the sum of $112,000.00
with interest from September 24, 1996, on the unpaid principal at the rate of
12.00 percent annually.
Unpaid principal after the Due Date shown below shall accrue interest at a rate
of 12.00 percent annually until paid.
The unpaid principal and accrued interest shall bc payable in full on September
24, 1997 (the Due Date). All payments on this Note shall be applied first in
payment of accrued interest and any remainder in payment of principal.
The Promisor promises to pay a late charge of $3,000.00 for each installment
that remains unpaid more than 7 day(s) after its due date. This late charge
shall be paid as liquidated damages in lieu of actual damage, and not as a
penalty.
If any of the following events of default occur, this Note and any other
obligations of the Promisor to the Payee. shall become due immediately, without
demand or notice
1) the failure of the Promisor to pay the principal and any accrued interest in
full on or before the Due Date;
2) the death of the Promisor (s) or Payee(s);
3) the filing of bankruptcy proceedings involving the Promisor as a Debtor;
4) the application for appointment of a receiver for the Promisor;
5) the making of a general assignment for the benefit of the Promisors
creditors;
6) the insolvency of the Promisor, or
7) the misrepresentation by the Promisor to the Payee for the purpose of
obtaining or extending credit.
In addition, the Promisor shall be in default if there is a sale, transfer,
assignment. or any other disposition of any assets pledged as security for the
payment of this Note, or if there is a default in any security agreement which
secures this Note. If any of the above defaults apply to one Promisor, all
Promisors shall be deemed in default of this Note regardless of whether all
Promisors are directly involved in the default.
This Note is secured by a collateral of two hundred thousand common shares of
the Titan Technologies, Inc (NASDAQ) transferred to ESA World Trade, Ltd. on
receipt of Funds., dated September 24, 1996. The Payee is not required to rely
on the above security for the payment of this Note in the case of default, but
may proceed directly against the Promisor.
If any one or more of the provisions of this Note arc determined to be
unenforceable, in whole or in part. for any reason, the remaining provisions
shall remain fully operative.
All payments of principal and interest on this Note shall bc paid in the legal
currency of the United States. Promisor waives presentment for payment, protest,
and notice of protest and nonpayment of this Note.
No renewal or extension of this Note, delay in enforcing any right of the Payee
under this Note, or assignment by Payee of this Note shall affect the liability
of the Promisor. All rights of the Payee under this Note are cumulative and may
bc exercised concurrently or consecutively at the Payees option.
This Note shall be construed in accordance with the laws of the State of New
Mexico.
Signed this 22 day of September, 1996 at
------------------------------------------------
Titan Technologies, Inc.
By:
---------------------------------------------
Xx. Xxx Xxxxxx
President
TRTC
By:
---------------------------------------------
TRTC
GUARANTY
Xx. Xxx Xxxxxx unconditionally guarantees all the obligations of the Promisor
under this Promissory Note.
Date: 22 September, 19 96
By:
---------------------------------------------
Xx. Xxx Xxxxxx
