Exhibit 10.26
LICENSE AGREEMENT
THIS EXCLUSIVE LICENSE AGREEMENT (the "Agreement") is made and entered into
effective as of January 4, 2006 (the "Effective Date"), by and between
BILLFIGHTER INVESTMENTS, LIMITED, an Anguilla limited liability company (the
"Licensor") and RECLAMATION CONSULTING AND APPLICATIONS, INC., a Colorado
corporation (the "Licensee"). Licensor and Licensee may sometimes be referred to
herein individually as a "party," and collectively as the "parties."
RECITALS:
WHEREAS, Licensor is the sole owner of all Proprietary Rights and
Intellectual Property Rights related to the Reliant III automated spray
application system;
WHEREAS, Licensee is the sole owner of certain Proprietary Rights and
Intellectual Property Rights related to its Alderox TM line of products which
are made from a patented formula relating specifically to an improved release
agent for mitigating the sticking of asphalt, concrete and other similar
products to various surfaces, and includes, without limitation, Licensee's
Alderox TM ASA-12TM, DCRTM, KR-7TM, PaverBlendTM, TSRTM, and ASA Cleaners (the
"Alderox Products");
WHEREAS, Licensor desires to grant Licensee the exclusive right to use,
modify, produce, market, sell and distribute the Licensed Product solely within
the aggregate and mining industries (the "Permitted Markets") anywhere in the
world (the "Territory"), subject to the terms and conditions herein set forth;
and
WHEREAS, Licensor and Licensee desire to enter into this Agreement under
the terms and conditions set forth herein and to document their respective
rights in and to the Licensed Product for the express purposes stated herein,
and the terms and conditions pursuant to which the Licensed Product is to be
provided, maintained, used and otherwise treated under this Agreement.
NOW, THEREFORE, for and in consideration of the mutual premises, covenants
and agreements herein contained and for other good and valuable consideration
the receipt and sufficiency of which are hereby acknowledged by the Parties
hereto, the Parties agree as follows:
ARTICLE I
DEFINITIONS
The following terms shall have the meaning set forth below:
1.1. Definitions. The following terms shall have the meaning set forth below:
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(a) "Affiliate" or "Affiliates" means any Person: (a) which, directly or
indirectly, controls, is controlled by, or is under common control with,
another Person, including those Persons where such control is through one
or more intermediaries; or (b) of which ten percent (10%) or more of the
voting capital stock (or in the case of an entity which is not a
corporation, ten percent (10%) or more of the equity interest) is owned or
held by another Person. For purposes of this definition, the term "Person"
shall mean an individual, corporation, company, limited liability company,
association, trust, partnership, limited partnership, limited liability
partnership, joint venture, unincorporated organization, government agency
or other agency or political subdivision thereof, or any other
organization, and the term "entity" means any Person which is not an
individual. Also for the purposes of this definition, "ownership" means
either legal or beneficial ownership, and "control" means the possession,
direct or indirect, of the power to direct or cause the direction of the
management and policies of an entity, or to vote or dispose of the
controlling voting equity of an entity, whether through ownership of
securities, by agreement, or otherwise.
(b) "Agreement" shall have the meaning given to such term in the Preamble to
this Agreement.
(c) "Alderox Products" shall have the meaning given to such term in the
Recitals to this Agreement.
(d) "Confidential Information" means any and all knowledge, data or
information not disclosed to the general public by a Disclosing Party
regarding its business, customers, intellectual property, products and
services, including without limitation, the Licensed Product, the Modified
Product and the Alderox Products, as applicable, and that is disclosed or
otherwise made available to a Receiving Party pursuant to or in connection
with this Agreement, including any Confidential Information which a
Disclosing Party has disclosed to a Receiving Party prior to the Effective
Date. Confidential Information includes, but is not limited to all
Intellectual Property, Proprietary Information, Proprietary Rights and
System Specifications (including any Modifications) for the Licensed
Product, Trade secrets, know-how and processes.
(e) "Copyright Rights" shall mean all copyrights, whether or not registered,
owned by Licensor as of the date hereof, including all registrations and
applications therefore and all moral rights related thereto.
(f) "Default Interest Rate" shall have the meaning given to such term in
Section 3.2(b) of this Agreement.
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(g) "Disclosing Party" shall have the meaning given to such term in Section
11.1 of this Agreement.
(h) "Effective Date" shall have the meaning given to such term in the Preamble
to this Agreement.
(i) "Indemnified Events" shall have the meaning given to such term in Section
7.1 of this Agreement.
(j) "Indemnified Party" shall have the meaning given to such term in Section
7.1 of this Agreement.
(k) "Indemnifying Party" shall have the meaning given to such term in Section
7.1 of this Agreement.
(l) "Intellectual Property" and "Intellectual Property Rights" means,
collectively, all of the following existing or hereafter arising
worldwide, tangible or intangible, legal rights pertaining to the Licensed
Product, including without limitation those existing or acquired by
ownership, license or other legal operation, whether or not filed,
perfected, registered or recorded, in or to: (i) all Patent Rights; (ii)
all Copyright Rights; (iii) all Trademark Rights; (iv) all Trade Secrets
and know-how; (v) all technology and other intellectual and proprietary
rights; (vi) all rights relating to the protection of the foregoing; and
(vii) all rights to xxx or make any claims for any past, present or future
infringement, misappropriation or unauthorized use of any of the foregoing
rights and the right to all income, royalties, damages and other payments
that are now or may hereafter become due or payable with respect to any of
the foregoing rights, including damages for past, present or future
infringement, misappropriate or unauthorized use thereof.
(m) "Inventions" means all discoveries, concepts, and ideas, whether or not
the same are patentable, copyrightable or otherwise registerable or
recordable in any jurisdiction (and regardless of whether the same have
been so registered or recorded, and whether currently existing or
hereafter acquired or created), including but not limited to improvements,
know-how, data, processes, methods, formulae, and techniques, as well as
improvements thereof or know-how related thereto, if based on or related
to the Intellectual Property, the Proprietary Information, or the Licensed
Product.
(n) "License" shall have the meaning given to such term in Section 2.1(a) of
this Agreement.
(o) "Licensed Product" shall mean the Reliant III automated spray application
system and any and all modifications thereto in accordance with the terms
of this Agreement. (p) "Licensee" shall have the meaning given to such
term in the Preamble to this Agreement.
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(q) "Licensee Default" shall have the meaning given to such term in Section
12.1(a) of this Agreement.
(r) "Licensor" shall have the meaning given to such term in the Preamble to
this Agreement.
(s) "Licensor Default" shall have the meaning given to such term in Section
12.1 (b) of this Agreement.
(t) "Modification" shall mean any and all updates, upgrades, additions,
enhancements, corrections, or repairs to the Licensed Product, including,
without limitation, any error corrections, performance enhancements, and
improvements to existing features, developed prior to or after the
Effective Date. A Modification shall further include any additional
products, modules, and/or services of the Licensed Product developed prior
to or after the Effective Date. "Modify" means the act of creating any
Modification.
(u) "Modified Product" shall have the meaning given to such term in Section
2.1 of this Agreement.
(v) "Note" shall have the meaning given to such term in Section 3.3 of this
Agreement.
(w) "Party" or "parties" shall have the meaning given to such term in the
Preamble to this Agreement.
(x) "Patent Rights" shall mean any and all patents, patent applications patent
disclosures and related patent rights, any and all continuations,
divisions, reissues, reexaminations, or extensions thereof which have been
filed, issued or acquired by Licensor as of the date hereof, any and all
foreign patents issuing from any application filed which corresponds to
claims contained in any of the foregoing patents or patent applications,
and any and all inventions conceived of or reduced to practice as of the
date hereof.
(y) "Permitted Markets" shall have the meaning given to such term in the
Recitals to this Agreement.
(z) "Proprietary Information" means any and all methods, inventions,
improvements or discoveries, whether or not patentable or copyrightable,
and any other information of a similar nature related to the Licensed
Product disclosed to any person or otherwise made known to any such person
as a consequence of or through such person's relationship or engagement by
Licensor (including information originated by such person) in any
technological area previously developed by Licensor or developed, engaged
in, or researched, by Licensor during the term of such person's
relationship or engagement with Licensor, including, but not limited to,
Trade Secrets, processes, products, formulae, apparatus, techniques,
know-how, marketing plans, data, improvements, strategies, forecasts,
customer lists, and technical requirements of customers.
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(aa) "Proprietary Rights" means all patents, patent applications, patent
licenses, trademarks, trademark registrations and applications therefor,
service marks, service names, formulas, trade names, trade dress, right to
use a name, copyrights, copyright registrations and applications therefor,
advertising copy and related materials, trade secrets and any other
Proprietary Rights or Intellectual Property Rights, whether domestic or
foreign that relate to the Licensed Product, including without limitation,
all Proprietary Information.
(bb) "Receiving Party" shall have the meaning given to such term in Section
11.1 of this Agreement.
(cc) "Royalty Products" shall have the meaning given to such term in Section
3.2(a) of this Agreement.
(dd) "Royalties" shall have the meaning given to such term in Section 3.2(a) of
this Agreement.
(ee) "Settlement" shall have the meaning given to such term in Section 7.2 of
this Agreement.
(ff) "Shares" shall have the meaning given to such term in Section 3.1 of this
Agreement.
(gg) "Term" Shall have the meaning given to such term in Section 12.1 of this
Agreement.
(hh) "Termination Notice" shall have the meaning given to such term in Section
12.1(a) of this Agreement.
(ii) "Territory" shall have the meaning given to such term in the Recitals to
this Agreement.
(jj) "Third Party" shall mean any Person other than Licensor or Licensee, or
any Affiliate of Licensor or Licensee.
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(kk) "Trade Secret" shall mean any and all information, whether or not in
tangible form, belonging to a Party or licensed by it, which derives
economic value, actual or potential, from not being generally known to,
and not being readily ascertainable by proper means by, other persons who
can obtain economic value from its disclosure or use and which is the
subject of efforts that are reasonable under the circumstances to maintain
its secrecy. Without limiting the generality of the foregoing, Trade
Secrets shall include but are not limited to studies, results, reports,
marketing strategies, technical or nontechnical data, formulae,
techniques, drawings, designs, processes, financial data, financial plans,
product plans, marketing plans, advertising plans, lists of actual or
potential customers or suppliers, and related items.
(ll) "Trademark Rights" shall mean any and all trade dress, trade names, logos,
domain names, and service marks, together with all translations,
adaptations, derivations, and combinations thereof and including all
goodwill associated therewith, and all applications, registrations,
reservations, and renewals in connection therewith; whether or not
registered.
1.2 Interpretation.
(a) Whenever in this Agreement the terms "include," "includes," "including,"
and derivative or similar words are used, they shall be construed to be
followed by the phrase "without limitation".
(b) Whenever in this Agreement the term "agreement" is used, it shall be
deemed to refer to binding agreements, commitments, arrangements,
understandings, undertakings, leases, contracts, contract rights, licenses
and sublicenses, quotations, purchase orders, customer orders, work orders
and other executory rights, whether oral or written.
(c) Wherever in this Agreement a statute or other piece of legislation is
referenced, such reference shall be deemed to include any and all
amendments thereto, as well as any successor legislation which may be
adopted subsequent to the date of this Agreement, and covering the same
subject matter or the referenced statute or legislation.
(d) Whenever in this Agreement the term "party to" is used in regard to an
agreement, it shall be construed as meaning "party signatory to or bound
by".
(e) Wherever in this Agreement reference is made to a Schedule "hereof" or
"attached hereto," the contents of such Schedule shall be deemed to be
incorporated into this Agreement by reference, as an integral part of this
Agreement.
(f) The headings of the Articles, Sections and Paragraphs of this Agreement
are inserted for convenience of reference only and shall not constitute a
part hereof.
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(g) Each reference in this Agreement to an Article, Paragraph, Section,
Schedule or Exhibit, unless otherwise indicated, shall mean an Article,
Paragraph or Section of this Agreement or a Schedule or Exhibit attached
to this Agreement, respectively.
(h) Whenever in this Agreement the terms "hereof," "herein," "hereby," or
derivative or similar words are used, such terms refer to this entire
Agreement.
(i) All references herein to "days" in this Agreement are to consecutive
calendar days unless Business Days are specified.
(j) The language in all parts of this Agreement shall in all cases be
construed as a whole according to its fair meaning, strictly neither for
nor against any Party hereto, and without implying a presumption that the
terms thereof shall be more strictly construed against one Party by reason
of the rule of construction that a document is to be construed more
strictly against the person who prepared the same, it being agreed that
representatives of both Parties have equally participated in the
preparation and negotiation hereof.
(k) Whenever in this Agreement the singular is used, it shall include the
plural if the context so requires, and whenever the masculine gender is
used in this Agreement, it shall be construed as if the masculine,
feminine or neuter gender, respectively, has been used where the context
so dictates, with the rest of the sentence being construed as if the
grammatical and terminological changes thereby rendered necessary have
been made.
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ARTICLE II
GRANT OF LICENSE
2.1 License Rights
(a) Grant of License. Subject to the terms and conditions of this Agreement,
Licensor hereby grants and licenses to Licensee, during the Term of this
Agreement (i) the sole and exclusive right and license to use, produce,
manufacture, market, sell and distribute the Licensed Product solely
within Permitted Markets anywhere in the Territory; and (ii) the
exclusive, worldwide right to Modify, at its expense, the License Product
for application of its Alderox Products to rails cars (the Licensed
Product as modified, the "Modified Product") (collectively, the
"License").
(b) Modification. In the event that Licensee desires to make any other
Modification to the Licensed Product, it may do so at its own expense,
provided that prior to undertaking the same, it shall notify Licensor of
any and all such Modifications which it proposes to make thereto. Within
thirty (30) calendar days after the receipt by Licensor of such notice,
Licensor shall notify Licensee if it approves of such proposed
Modifications, or has any concerns about such Modifications, and shall set
forth in detail the nature of any such concerns. The failure of the
Licensor to respond within such period shall be deemed acquiescence by
such Party or Parties to the Modifications as proposed. The Parties agree
to work in good faith to attempt to address and resolve any such concerns
promptly following the notification to Licensee of the existence thereof.
If, following such efforts, Licensor states in writing that it reasonably
believes in good faith that the desired Modifications as proposed by
Licensee would materially injure, limit or impair the use and
functionality of the Licensed Product, then Licensor shall propose its own
Modifications to accomplish Licensee's objectives. Otherwise, Licensee
shall be free to undertake all such Modifications in its sole and absolute
discretion. All Modifications developed by or on behalf of Licensee, and
at its expense, shall be and remain the sole proprietary rights of
Licensee, and Licensor shall have no right, title or interest to the
Modifications thereto.
(c) Use of Information. Licensee will not use the Intellectual Property,
Proprietary Rights, Inventions, Proprietary Information and Confidential
Information other than as specifically authorized by the terms of and
subject to the conditions of this Agreement and the other agreements into
which the Parties have entered contemporaneously herewith.
(d) Trademark and Copyright. Except as set forth herein, Licensee shall have
the right to use and copy any and all marks, trademarks, service marks,
images and copyrights of Licensor pertaining to the Licensed Product in
connection with the marketing and distribution of the Licensed Product,
and may grant this right to its customers for that limited purpose.
Nothing herein shall limit or restrict Licensee from developing, recording
and affixing to the Licensed Product, and/or any collateral materials and
documentation distributed in connection therewith, its own proprietary or
intellectual property rights.
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(e) No Interest. Licensee acknowledges that it has no right, title or interest
whatever in the Intellectual Property, Proprietary Rights, Inventions,
Proprietary Information and Confidential Information; or any part of them, and
acquires no such rights by this Agreement, other than the License granted to it
pursuant to subsection 2.1(a) and the other agreements into which the Parties
have entered contemporaneously herewith.
(f) Acceptance. Licensee hereby (i) accepts the rights granted to it by Licensor
under this Agreement; and (ii) acknowledges that the License granted by Licensor
to Licensee hereunder are limited to the specific purposes set forth herein, and
are subject to the terms and conditions of this Agreement.
ARTICLE III
CONSIDERATION
3.1 Grant of Licensee Shares. As consideration for the License, (i) Licensee
agrees to pay and Licensor agrees to accept $320,000 in the form of 4,000,000
restricted shares of the common stock of Licensee, par value $0.01 (the
"Shares") and having piggyback registration rights pursuant to a Subscription
Agreement, attached hereto as Exhibit A and made an integral part hereof; (ii)
Licensee will pay Licensor Royalties as provided in Section 3.2 hereof; and
(iii) Licensee shall issue to Licensor a promissory note as provided in Section
3.3 hereof.
3.2 Royalties.
(a) Royalties. Licensee agrees to pay cash royalties (the "Royalties") equal
to ten percent (10%) of the net revenues generated by Licensee from the
sale and distribution of its Alderox Products for application to rail cars
using the Modified Product (the "Royalty Products").
(b) Payment of Royalties. Payment of all Royalties hereunder shall be due upon
the receipt by Licensee of proceeds from the sale of the Royalty Products,
and shall be cumulated and paid by Licensee to Licensor, quarterly, within
fifteen (15) days following the last day of the fiscal quarter in which
such Royalties were earned. Payments of Royalties shall be accompanied by
a report showing the aggregate volume of all Royalty Products sold, and
the proceeds received therefrom during the period covered by such report
and paid therewith. Licensee shall not be obligated to disclose to
Licensor the specific identities of purchasers of the Royalty Products
listed in any such sales report, provided that Licensee is and at all
times remains in compliance with the express reporting and inspection
provisions of Section 3.2(c) below. If any payment owed to Licensor is not
paid within the periods specified in this Section 3.2(b), interest will
accrue thereon at the rate of six percent (6%) per annum (the "Default
Interest Rate") from the date on which such payment becomes due until it
is paid in full. This provision is not intended to relieve Licensee from
any default in the making of any payment at the time and in the manner
specified herein.
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(c) Audit Rights. Licensee shall keep sufficiently full, clear and accurate
books and records to allow the reports required under Section 3.2(b) above
to be audited and verified, and shall make those books and records
available for inspection during regular business hours upon at least
thirty (30) days' notice to Licensee. Licensor may (but not more than one
(1) time in any twelve (12) month period during the Term hereof) engage an
independent certified public account to audit the relevant books and
records of Licensee for the one (1) year period immediately preceding the
date of such notice regarding any and all of the matters required to be
reported under Section 3.2(b) during that one (1) year period. Unless
otherwise agreed to by the Parties, the audit shall be at Licensee's place
of business where such books and records are normally kept by Licensee, at
mutually convenient times, and not more than six (6) weeks after notice of
such audit. Such audits shall be conducted in a manner reasonably designed
to minimize any disruption to Licensee's business. The auditing person
will provide the Licensor, as applicable, a written report of the results
of the audit and will at the same time provide an identical copy of the
report to Licensee. The cost of any such audit shall be borne by the
Licensor, unless the audit reveals an underreporting in revenue or in the
amount of the applicable Royalty of more than twenty percent (20%) for the
period audited, in which case the cost of the audit shall be borne by
Licensee. If any audit reveals an underreporting in revenue or in the
amount of the applicable Royalty payments of more than twenty percent
(20%), then Licensee shall pay to Licensor, as applicable, the deficiency
plus interest at the Default Interest Rate, and such payment shall be made
within ten (10) business days of the date of the certified public
accountant's report. If the audit reveals an underreporting in revenue or
in the amount of the applicable Royalty Payments for the period audited of
less than or equal to twenty percent (20%), then Licensee shall pay to
Licensor, as applicable, just the amount of the deficiency in such ten
(10) business day period.
3.3 Promissory Note. As further consideration for the License granted hereunder,
Licensee agrees to pay Licensor the sum of One Hundred Eighty Thousand Dollars
($180,000) pursuant to that certain promissory note (the "Note"), attached
hereto as Exhibit B and made an integral part hereof.
3.4 Taxes. Any and all taxes payable by the Parties hereto as a result of any
transaction described herein shall be the sole responsibility of the Party
against which such tax is assessed. All payments provided for herein are
intended to be calculated and paid on a pre-tax basis to Licensor.
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ARTICLE IV
ASSISTANCE AND INSTRUCTION
4.1 Technical Assistance by Licensor. Promptly upon request, Licensor shall
provide to Licensee such assistance and instruction in understanding,
interpreting and applying the technology underlying the Licensed Product as
Licensee may reasonably request from time to time for the purpose of marketing,
distributing, or otherwise commercially exploiting the Licensed Product in the
Territory. Licensor shall, at their expense, make their employees reasonably
available for consultation by telephone, or in person, at the offices of
Licensee or at such other place as the Parties may mutually agree, as may be
reasonably necessary or desirable to most efficiently and expeditiously provide
the assistance and consultation required in connection with such request.
4.2 Licensor Marketing Obligations. Upon request, Licensor shall provide
Licensee with such marketing assistance as may be requested by Licensee from
time to time, including but not limited to marketing and advertising materials;
identification of Licensee on Licensor's marketing materials as an authorized
licensee of the Licensed Product; and providing Licensee's customers and
prospective customers with such technical information or assistance as may be
reasonably requested by them. Licensee shall reimburse Licensor for their
reasonable expenses incurred in fulfilling any obligation hereunder, provided
that the maximum amount thereof shall have been approved in advance, in writing,
by Licensee.
4.3 The services and technical assistance provided by Licensor in accordance
with this Article IV shall be at a level that meets or exceeds industry
standards. In the event of disagreement over the reasonableness of a request by
Licensee or Licensee's customers and prospective customers, the parties shall
confer and attempt in good faith to resolve such disagreement.
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ARTICLE V
COVENANTS OF THE PARTIES
5.1 Covenants of Licensor.
(a) Licensor covenants and agrees that, during the Term of this Agreement,
other than as expressly permitted herein, Licensee shall not, either
directly or indirectly, on its own behalf or on behalf of others:
(i) as an individual proprietor, partner, stockholder, officer,
employee, director, joint venturer, promoter, sponsor, member,
manager, investor, lender, consultant, or in any other capacity
whatsoever (other than as the holder of an aggregate of not more
than one percent (1%) of the total outstanding stock of a publicly
held company), engage in the business of developing, producing,
marketing, or selling products or rendering services which are
directly or indirectly competitive with the Licensed Product
distributed by Licensee pursuant to the License granted hereby; or
(ii) solicit, divert, or take away, or attempt to divert or to take away,
the business or patronage of any of the clients, customers, business
associates, or accounts, or prospective clients, customers, business
associates, or accounts, of Licensee; or
(iii) interfere with Licensee's relationships with its suppliers,
contractors, and other Persons and entities with which Licensee does
business.
(b) Licensor will use its commercially reasonable best efforts to comply in
all respects with each and every obligation of Licensor under this
Agreement.
(c) Licensor will not take or permit others under its control or direction to
take any actions that will or are likely to (i) impair in any way the
Licensed Product, the Proprietary Rights, and/or any of the rights granted
to Licensee hereunder, or (ii) result in damage to Licensee's reputation
or quality standards.
(d) Licensor will immediately deliver to Licensee a copy of all notices and
correspondences received, sent or obtained by Licensor and relating in any
way to any alleged breach or non-compliance by Licensor under the this
Agreement, or any claim (or possible claims) on or relating to the
Licensed Product, the Proprietary Rights or otherwise affecting in any way
the rights of Licensee hereunder.
5.2 Covenants of Licensee.
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(a) Licensee covenants that the use of the Licensed Product (and related
marketing materials) will comply with and shall continue to comply in all
material respects with the laws of such Territory in which Licensee is
distributing the Licensed Product, including, without limitation, those
applicable to product claims, labeling, approvals, registrations and
notifications.
(b) Licensee shall keep Licensor informed as to any problems encountered with
the Licensed Product as well as any claims by third parties that allege
activities that are likely to be construed as a breach of this Agreement.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF THE PARTIES
6.1 Mutual Representations and Warranties. Each Party hereby represents and
warrants to the other Parties, as of the date hereof and as to itself only, as
follows:
(a) Corporate Power. Such Party is duly organized and validly existing under
the laws of the state of its incorporation and has full corporate power
and authority to enter into this Agreement and to carry out the provisions
hereof.
(b) Due Authorization. Such Party is duly authorized to execute and deliver
this Agreement and to perform its obligations hereunder.
(c) Binding Agreement. This Agreement is the legal and valid obligation of
such Party, binding upon and enforceable against such Party in accordance
with its terms. The execution, delivery and performance of this Agreement
by such Party does not conflict with any agreement, instrument or
understanding, oral or written, to which it is a party or by which it may
be bound, nor violate any law or regulation of any court, governmental
body or administrative or other agency having authority over it.
(d) Accuracy of Information. No statement by any of the Parties contained in
this Agreement, or in any Exhibit or Schedule hereto, contains any untrue
statement, or omits to state any material fact.
(e) The Parties shall not at any time engage in any act of omission or
commission that would impair in any material way each of the Parties'
respective rights and interest in, to or under any of the Licensed Product
and the Alderox Products (as applicable) or any other Proprietary
Information or Intellectual Property related to or concerning the Licensed
Product and the Alderox Products (as applicable), and shall not at any
time induce, aid or abet others to do any of the foregoing.
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6.2 Licensor's Representations and Warranties
(a) Intellectual Property. Licensor possess all rights to use the Proprietary
and Intellectual Property Rights as licensed to Licensee pursuant to this
Agreement, and has not received any notice of infringement of or conflict
with asserted rights of others with respect to any Intellectual Property
or Proprietary Rights that, if determined adversely to Licensor, would
individually or in the aggregate have a material adverse effect on the
ability of Licensee to market, distribute or otherwise commercially
exploit the Licensed Product in the Territory as contemplated by this
Agreement.
(b) Patent Matters. As of the Effective Date, Licensor has no knowledge of the
existence of any patent owned or controlled by a Third Party which covers
the Licensed Product and would prevent Licensee from using the Licensed
Product as licensed hereunder. Notwithstanding the foregoing, if at any
time during the term of this Agreement, a patent or patent application
held by a Third Party is identified which covers all or any part of the
Licensed Product, the Parties will meet and discuss possible resolutions
of the patent situation. If the resolution involves a license from the
Third Party to its Patent Rights and/or a license to the Third Party under
Licensor's Patent Rights, the Parties acknowledge that the economic
assumptions underlying this Agreement may no longer be valid, and in such
case the Parties will reduce the royalty terms of this Agreement in good
faith in order to reflect such circumstance.
(c) EXCEPT AS OTHERWISE SET FORTH IN THIS ARTICLE, LICENSOR DISCLAIMS ALL
WARRANTIES, WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, STATUTORY OR
OTHERWISE, WITH RESPECT TO THE TECHNOLOGY AND SUPPORT SERVICES PROVIDED
HEREUNDER, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE.
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ARTICLE VII
INDEMNIFICATION
7.1 Each Party (the "Indemnifying Party") shall indemnify and hold the other
Party and its officers, directors, principals, employees and agents (the
"Indemnified Party") harmless for, from, and against any and all losses,
damages, liabilities, claims, suits, expenses and all other costs of any type,
and shall reimburse the Indemnified Party for its reasonable attorneys' fees,
insofar as any of the foregoing result from, arise in connection with, or are
related in any way to: (a) any breach by the Indemnifying Party of its
representations, warranties and/or obligations hereunder; or (b) any wrongful
intentional or wrongful negligent act of omission or commission of the
Indemnifying Party (items (a) and (b) collectively being referred to herein as
"Indemnified Events").
7.2 The Indemnified Party shall promptly (and in no case more than ten (10)
calendar days after the fact) give written notice to the Indemnifying Party of
any third-party notice, demand or allegation of or relating to such losses,
damages, liabilities, claims, suits, expenses or other costs of any type,
including an invitation to the Indemnifying Party to participate in the defense.
Failure to give such written notice shall not relieve the Indemnifying Party
from any liability that the Indemnifying Party may have hereunder. Subject to
the proviso that follows, the Indemnified Party shall have the ability to select
counsel of its own choosing and shall have control over the complete defense,
but shall not settle without the Indemnifying Party's consent, which consent
shall not be unreasonably withheld; provided, however, that if the Indemnifying
Party elects to participate in the defense, the Indemnifying Party may assume
control of the complete defense (unless the Indemnified Party reasonably objects
to such assumption on the ground that there may be defenses available to the
Indemnified Party if it controls the defense that would not otherwise be
available), such control including, by way of example and not by way of
limitation, the right of the Indemnifying Party to select defense counsel
(subject to the approval of the Indemnified Party of such counsel, such approval
not to be unreasonably withheld). If the Indemnifying Party assumes control of
the complete defense, the Indemnified Party may employ separate counsel at the
expense of the Indemnified Party to assist the Indemnified Party with respect to
any liabilities, claims or suits. Notwithstanding anything else to the contrary,
before settling, compromising or otherwise extinguishing any claim by a
third-party (whether or not suit or any other type of dispute resolution
procedure has been commenced) made against the Indemnified Party (a
"Settlement"), the Indemnifying Party must first obtain the written consent of
the Indemnified Party, and the Indemnified Party shall have discretion to
withhold such consent if the Settlement (a) is for or involves non-monetary
consideration or non-monetary judicial relief, including, but not limited to,
promises by the Indemnified Party to do or forbear from doing any act or the
granting of equitable remedies, (b) involves, requires or implies admissions of
wrongful acts (whether civil or criminal) by the Indemnified Party, and/or (c)
would likely have a detrimental effect on the Indemnified Party's reputation or
goodwill.
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7.3 This Article VII does not in any way limit one Party's rights against the
other for any breach of this Agreement, including, by way of example and not by
way of limitation, a breach of any representation, warranty or obligation set
forth in this Agreement.
7.4 Licensee may, and is hereby authorized by Licensor to, at any time and from
time to time, to the fullest extent permitted by applicable laws, without
advance notice to Licensor (any such notice being expressly waived by Licensor),
set off and apply any and all amounts due and owing by Licensee to Licensor, or
either them, at any time or for the credit or the account of Licensor against
any or all of the costs, fees and expenses incurred by Licensee hereunder,
whether or not such obligations have matured. Licensee hereby agrees promptly to
notify Licensor after any such set-off or application; provided, however, that
the failure to give such notice shall not affect the validity of such set-off
and application.
ARTICLE VIII
EACH PARTY TO BEAR ITS OWN COSTS
Except as otherwise expressly provided herein, each Party shall bear all of its
own costs relating to this Agreement, including, by way of example and not by
way of limitation, the cost of negotiating and entering into this Agreement and
the cost of fulfilling all of its obligations under this Agreement.
ARTICLE IX
EXECUTORY CONTRACT
In the event that any of the Parties to this Agreement should hereafter
voluntarily or involuntarily seek relief under the United States Bankruptcy Code
(Title 11 U.S.C. xx.xx. 101, et seq.), the Parties acknowledge and agree that
this Agreement constitutes an executory contract under which Licensor is a
licensor to Licensee of a right to use Intellectual Property within the meaning
of 11 U.S.C. ss. 365. The Parties acknowledge and agree that in such event,
Licensee shall have full availability to retain its rights and continue to
exercise the rights and licenses granted to Licensee hereunder pursuant to the
provisions of 11 U.S.C. ss. 365(n).
ARTICLE X
EXISTING AND FUTURE PROPRIETARY INFORMATION AND INTELLECTUAL PROPERTY
10.1 Each Party shall continue to own and control all proprietary information
and intellectual property rights owned by such Party immediately prior to the
Effective Date.
10.2 Any and all proprietary information and intellectual property created by
Licensor, and not jointly with Licensee, after the Effective Date shall be owned
and controlled by Licensor.
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10.3 Any and all proprietary information and intellectual property which is
developed jointly by Licensor and Licensee shall be owned jointly by them in
proportion to the economic investment made by each Party toward the development
of such information or property, unless otherwise reflected in a signed, written
agreement between or among such Parties with respect to the ownership rights
thereof.
ARTICLE XI
CONFIDENTIALITY
11.1 A Party receiving Confidential Information (the "Receiving Party") from the
other `Party (the "Disclosing Party") shall, from the Effective Date for a
period of two (2) years from the date on which this Agreement shall terminate or
expire in accordance with the applicable provisions hereof:
(a) hold in confidence such Confidential Information disclosed to it by the
Disclosing Party;
(b) safeguard such Confidential Information of the Disclosing Party with the
same degree of care (but in no case less than a reasonable degree of care)
as the Receiving Party uses for its own Confidential Information;
(c) not use such Confidential Information of the Disclosing Party in any way
or for any purpose other than as expressly and specifically permitted
herein; and
(d) limit dissemination of such Confidential Information of the Disclosing
Party within the Receiving Party only to those of its employees who must
be directly involved with the Confidential Information of the Disclosing
Party for the purposes contemplated by this Agreement and who are bound by
obligations to the Receiving Party for the benefit of the Disclosing Party
corresponding to those of items (a) through (d) of this Section 11.1.
11.2 The obligations of Section 11.1 shall not apply to any Confidential
Information that:
(a) as of the Effective Date is or thereafter becomes publicly known and
freely available for use through no act, failure to act, fault, or
omission of the Receiving Party and without breach of this Agreement by
the Parties;
(b) was already known to the Receiving Party prior to the time of its first
disclosure by the Disclosing Party to the Receiving Party, from a
third-party whose disclosure to the Receiving Party was and is not in
violation of any confidentiality or use restriction, and where such
knowledge by the Receiving Party was and is free from any third- party's
confidentiality restriction and/or use restriction;
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(c) is lawfully and without breach of this Agreement received by the Receiving
Party from a third-party whose disclosure to the Receiving Party is not in
violation of any confidentiality or use restriction and where such
knowledge by the Receiving Party is free from any third-party's
confidentiality restriction and/or use restriction;
(d) is furnished to a third-party by the Disclosing Party without any
restrictions on the third-party's rights of disclosure and/or rights of
use;
(e) is expressly and specifically approved for public release and public use
by prior written authorization of the Disclosing Party; or
(f) is independently developed by the Receiving Party (as shown by
contemporaneous corroborating documentary evidence) without any knowledge
of and without any use of any Confidential Information disclosed by the
Disclosing Party to the Receiving Party.
11.3 Disclosure of Confidential Information by the Receiving Party shall not be
precluded if such disclosure is made to comply with a valid order of a court or
other governmental body of the United States (or any political subdivision
thereof) having appropriate jurisdiction thereof; provided, however, that the
Receiving Party shall promptly (and in any case, prior to disclosure and not
more than five (5) calendar days after such order) give advance written notice
to the Disclosing Party so that the Disclosing Party may oppose such disclosure
and/or obtain a protective order satisfactory to the Disclosing Party requiring
that the Confidential Information ordered to be disclosed be kept confidential
and used only for the purpose for which the order was issued. ARTICLE XII
TERM AND TERMINATION
12.1 Termination. This Agreement shall commence as of the Effective Date and
shall continue in full force and effect until terminated in accordance with this
Section 12.1 (the "Term").
(a) Termination by Licensor. Licensor may terminate this Agreement in the
event of a Licensee Default, as defined in the immediately following
sentence, by delivering a written notice of termination (a "Termination
Notice") to Licensee in accordance Section 14.9. For purposes of this
Agreement, the term "Licensee Default" means any material breach by
Licensee of any representation, covenant, warranty, or term of this
Agreement that is not cured (if able to be cured) within sixty (60)
consecutive days after the date of such Termination Notice (the failure of
Licensee to pay the Consideration shall be deemed, without limitation, to
constitute a material breach under this Agreement).
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(b) Termination by Licensee. Licensee may terminate this Agreement in the
event of a Licensor Default, as defined in the immediately following
sentence, by delivering a Termination Notice to Licensor in accordance
Section 14.9. For purposes of this Agreement, the term "Licensor Default"
means, collectively or individually, (i) any material breach by Licensor
of any representation, covenant, warranty, or term of this Agreement that
is not cured (if able to be cured) within sixty (60) consecutive days
after the date of such Termination Notice; and (ii) upon six months prior
written notice to Licensor in accordance with Section 14.9.
(c) Termination by Mutual Consent. Licensor and Licensee may terminate this
Agreement, or portions thereof, at any time by mutual written consent.
12.2 Remedies
(a) Licensor's Remedies. In the event of termination of this Agreement
pursuant to Subsection 13.1(a) hereof, Licensor shall be entitled to
exercise any and all remedies available to it under this Agreement, or
otherwise at law or in equity. None of the remedies referred to in this
Subsection 12.2(a) shall be exclusive, and all of such remedies shall be
cumulative.
(b) Licensee's Remedies. In the event of termination of this Agreement
pursuant to Subsection 13.1(b) hereof, Licensee shall be entitled to
exercise any and all remedies available to it under this Agreement
(subject to the next sentence), or otherwise at law or in equity. None of
the remedies referred to in this Subsection 12.2(b) shall be exclusive,
and all of such remedies shall be cumulative.
12.3 Effect of Termination.
(a) Upon any termination of this Agreement by a Licensor:
(i) the License shall immediately terminate, and all Intellectual
Property, Proprietary Information, Confidential Information,
Inventions, and Proprietary Rights associated therewith shall
immediately revert to Licensor; and
(ii) Licensee shall immediately and without further act by Licensor cease
making any use of all Intellectual Property, Proprietary
Information, Confidential Information, Inventions and Proprietary
Rights licensed to Licensee pursuant to this Agreement; and
(b) Any termination of this Agreement by one Party shall not relieve the other
Party of any of its obligations to the Party existing at the time of
termination.
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(c) Articles V through XIV shall survive any termination of this Agreement.
ARTICLE XIII
ASSIGNMENT OR OTHER TRANSFER
Neither this Agreement, nor any right or obligation hereunder, is assignable or
otherwise transferable by Licensor without the prior written consent of
Licensee, which consent may be withheld by Licensee in its sole and absolute
discretion. Any attempt by Licensor to assign or otherwise transfer this
Agreement, or any right or obligation hereunder, to a third-party shall be null,
void, and not binding on Licensee unless Licensee authorizes such assignment or
other transfer by Licensor in writing before effectuating such assignment or
other transfer. Except as expressly permitted hereunder, this Agreement, and any
right or obligation hereunder, are not assignable or otherwise transferable by
Licensee without the prior written consent of Licensor, provided that Licensee
shall have the right to sublicense any of its rights herein, in any Territory,
and/or to assign its rights hereunder to any Affiliate of Licensee in each case
upon notification thereof to Licensor within ten (10) business days after such
event.
ARTICLE XIV
MISCELLANEOUS
14.1 Severability. If any provision of this Agreement shall for any reason be
found invalid, illegal, unenforceable or in conflict with any valid controlling
law: (a) such provision shall be separated from this Agreement; (b) such
invalidity, illegality, unenforceability or conflict shall not affect any other
provision hereof; and (c) this Agreement shall be interpreted and construed as
if such provision, to the extent the same shall have been held invalid, illegal,
unenforceable or in conflict, had never been contained herein. In the event the
legality of any provision of this Agreement is brought into question because of
a decision by a court or other tribunal of competent jurisdiction of any country
in which this Agreement applies, the Parties may agree to revise the provision
in question or may delete it entirely so as to comply with the decision of the
court or other tribunal and so as to most closely comply with the intent of this
Agreement prior to the revision or deletion of the provision in question.
14.2 Waiver. The waiver of a breach hereunder may be effected only by a writing
signed by the waiving Party and shall not constitute, or be held to be, a waiver
of any other or subsequent breach or to affect in any way the effectiveness or
enforceability of the provision in question.
14.3 Amendment. Any Modification or amendment of this Agreement shall be
effective only if made in writing and signed by all Parties.
14.4 Relationship of the Parties. Each Party is an independent contractor and is
independent of the other Party. Under no circumstances shall any employees of
one Party be deemed the employees of the other Party for any purpose. This
Agreement does not create a partnership, joint venture or agency relationship
between the Parties of any kind or nature. This Agreement does not create any
fiduciary or other obligation between the Parties, except for those obligations
expressly and specifically set forth herein. Neither Party shall have any right,
power, or authority under this Agreement to act as a legal representative of the
other Party, and neither Party shall have any power to obligate or bind the
other or to make any representations, express or implied, on behalf of or in the
name of the other in any manner or for any purpose whatsoever.
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14.5 Governing Law; Venue for Suit; Jurisdiction of Court. This Agreement shall
be governed by and construed in accordance with the internal laws of the State
of California applicable to the performance and enforcement of contracts made
within such state, without giving effect to the law of conflicts of laws applied
thereby. In the event that any dispute shall occur between or among the Parties
arising out of or resulting from the construction, interpretation, enforcement
or any other aspect of this Agreement, the Parties hereby agree to accept the
exclusive jurisdiction of the Courts of the State of California sitting in and
for the County of Orange. The Parties hereby agree that venue is proper in those
courts, hereby consent to such venue in and personal jurisdiction over them by
those courts, and hereby waive all objections to such venue and to the courts'
personal jurisdiction over them.
14.6 Schedules and Exhibits. All schedules and all exhibits attached hereto or
referred to herein are integral and material parts of this Agreement and are
hereby incorporated into this Agreement.
14.7 No Third Party Beneficiaries. Nothing in this Agreement, express or
implied, is intended or shall be construed to confer upon any Person, other than
the Parties and their respective successors and assigns permitted hereby, any
right, remedy or claim under or by reason of this Agreement.
14.8 Merger and Integration. This Agreement contains the entire understanding
between the Parties concerning the subject matter of this Agreement, and
supersedes any and all prior understandings, agreements, representations, and
warranties, express or implied, written or oral, between the Parties concerning
the subject matter of this Agreement.
14.9 Notices. Any demand, notice, report, request, or other communication
required or permitted to be given under this Agreement shall be in writing and,
unless otherwise provided herein, shall be deemed sufficiently given when
actually delivered in person (including delivery by a commercial service such as
a messenger) or when mailed by express, registered, or certified mail (postage
prepaid) directed as follows:
If to Licensor: Billfighter Investments Limited
Hannah Waiver House,
The Valley, Anguilla BWI
Attention: Xxxxxxxxx Xxxxxx
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If to Licensee: Reclamation Consulting and Applications, Inc.
00000 Xxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxx Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxx
President
Tel: (000) 000-0000
Fax: (000) 000-0000
With a copy (which shall
not constitute notice) to: August Law Group, P.C.
00000 Xxx Xxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. August
President
Tel: (000) 000-0000
Fax: (000) 000-0000
provided, however, that any Party may, by notice given to the other
Parties in accordance with this Section 14.9, designate another address or
person for receipt of notices hereunder.
14.10 Legal Counsel. All of the terms and conditions of this Agreement are the
result of direct negotiation among the Parties, each of which acknowledges that
it has obtained or has had the opportunity, but in its sole discretion has
chosen not to, obtain the advice of legal counsel. Accordingly, any principle of
contract interpretation construing a contract or provision thereof against the
drafter shall not apply to this Agreement.
14.11 LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR
INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY, OR INDIRECT DAMAGES,
WHETHER CLAIMED UNDER CONTRACT, TORT, OR ANY OTHER LEGAL THEORY EVEN IF THE
PARTY ALLEGED TO BE LIABLE FOR THE DAMAGES HAS BEEN ADVISED IN ADVANCE OF THE
POSSIBILITY OF SUCH DAMAGES.
14.12 Successors and Assigns. This Agreement will be binding upon the permitted
successors and permitted assigns or other permitted transferees of Licensor and
upon the successors and assigns and other transferees of Licensor.
14.13 Force Majeure. Neither Party shall be liable for any failure or delay in
performing its obligations hereunder due to any external cause beyond its
reasonable control, including, by way of example and not by way of limitation,
fire, accident, acts of the public enemy, war, riot, rebellion, labor dispute,
strike, lock-out, labor shortage, labor unrest, insurrection, sabotage,
epidemic, transportation delay, shortage of raw materials, supplies, energy,
components or machinery, an act of God or government or the judiciary, or any
other cause beyond the reasonable control of the non-performing or
late-performing Party.
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14.14 Further Documents. Each Party shall execute and deliver, at any time and
from time to time upon the request of the other Party, such further instruments,
papers or documents as may be necessary or appropriate to consummate the
transactions contemplated hereby, to implement or perfect any liens or
transfers, and to take such other action as the other Party may reasonably
request to effectuate the purposes of this Agreement.
14.15 Execution In Counterparts. This Agreement may be executed in counterparts,
each of which shall constitute an original and all of which together shall
constitute one and the same Agreement and be effective as of the Effective Date.
14.16 Specific Performance; Remedies Cumulative. The parties hereby agree with
each other that, in the event of any breach of this Agreement by any party where
such breach may cause irreparable harm to any other party, or where monetary
damages may not be sufficient or may not be adequately quantified, then the
affected party or parties shall be entitled to specific performance, injunctive
relief or such other equitable remedies as may be available to it, which
remedies shall be cumulative and non-exclusive, and in addition to such other
remedies as such party may otherwise have at law or in equity.
14.17 Attorneys' Fees. In any action or proceeding between the Parties
hereunder, the prevailing Party shall be entitled to recover all fees, costs and
other expenses (including, without limitation, the reasonable expenses of its
attorneys) incurred in addition to any other relief to which it may be entitled.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
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By signature below, each Party acknowledges that: (a) it has read, understood,
and approved this Agreement; (b) it has had an opportunity to consult with its
respective counsel, as indicated in Section 14.10, above, and with such other
experts and/or advisors as it has deemed necessary in connection with the
negotiation, execution, and delivery of this Agreement; (c) the provisions
contained herein represent an agreed allocation of risks that is reflected in
the obligations hereunder; (d) this Agreement has been fully and fairly
negotiated; (e) it has had ample opportunity to ask questions of the other
Parties regarding this Agreement; and (f) it has caused this Agreement to be
executed by a duly authorized representative who has the authority to bind that
Party to this Agreement.
LICENSOR:
BILLFIGHTER INVESTMENTS, LIMITED
By: /s/ Xxxxxxxxx Xxxxxx
--------------------
Name: Xxxxxxxxx Xxxxxx, Authorized Signatory
LICENSEE:
RECLAMATION CONSULTING AND APPLICATIONS, INC.
By: /s/ Xxxxxx X. Xxxxxx
---------------------
Name: Xxxxxx X. Xxxxxx, President
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EXHIBIT A
SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT(the "Agreement"), is entered into as of the
4th day of January, 2006 (the "Effective Date") , by and between Billfighter
Investments Limited, an Anguilla limited liability company (the "Investor"), and
Reclamation Consulting and Applications, Inc., a corporation organized and
existing under the laws of the State of Colorado (the "Company").
WHEREAS, the Company has authorized seventy-five million (75,000,000)
shares of common stock (the "Common Stock") with a par value of one cent ($0.01)
per share, of which twenty-nine million, six hundred twenty thousand, eight
hundred thirteen (29,620,813) shares are issued and outstanding as of the date
hereof;
WHEREAS, contemporaneously herewith, the parties have entered into that
certain License Agreement, dated of even date herewith (the "License
Agreement"), pursuant to which the Investor has granted the Company the
exclusive right and license to use, modify, produce, market, sell and distribute
Reliant III automated spray applicator system (the "Licensed Product") in the
aggregate and mining industries anywhere in the world in consideration for,
among other things, the shares of the Company's Common Stock subscribed for
pursuant hereto (collectively, the "License Fee"); and
WHEREAS, subject to the terms and conditions contained herein, the Investor
desires to purchase four million (4,000,000) shares of the Company's
Common Stock (the "Shares") at eight cents ($0.08) per share for an
aggregate purchase price of Three Hundred and Twenty Dollars ($320,000)
(the "Purchase Price").
NOW, THEREFORE, in consideration of the foregoing premises and the
covenants and agreements set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, hereby agree as follows:
1. Subscription for the Shares. Upon execution of this Agreement, the
Investor hereby irrevocably agrees to subscribe for the Shares to be
issued by the Company in accordance with the terms of this Agreement. Such
Shares, once delivered to the Investor as set forth herein, shall be
validly issued, fully paid and non-assessable, and shall be recorded on
the books and records of the Company as issued to Billfighter Investments
Limited.
2. Consideration for and Issuance of the Shares. As consideration for the
Shares, the Investor agrees to credit the amount of the Purchase Price
towards the License Fee on the terms and conditions as more fully set
forth in the License Agreement. Upon the execution of License Agreement
and this Agreement, the Company shall cause the Investor to be issued a
stock certificate in the manner set forth above, evidencing the Investor's
ownership of the Shares.
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3. Representations and Warranties of the Company. The Company hereby
represents and warrants to the Investor, as of the date hereof, the
following:
(a) the Company is a corporation duly organized and validly existing
under the laws of the State of Colorado, and has full power and
authority to enter into, execute and perform this Agreement, which
Agreement, once executed by the Company, shall be the valid and
binding obligation of such party, enforceable against such party by
any court of competent jurisdiction in accordance with its terms;
(b) the individuals signing this Agreement on behalf the Company are the duly
elected executive officers of the Company so indicated, and have full
power and authority to enter into and execute this Agreement for and on
behalf of the Company;
(c) the Company is not bound by or subject to any contract, agreement,
court order or judgment, administrative ruling, law, regulation or
any other item which prohibits or restricts such party from entering
into and performing this Agreement in accordance with its terms, or
requiring the consent of any third party prior to the entry into or
performance of this Agreement in accordance with its terms by such
party.
4. Representations and Warranties of the Investor. The Investor hereby
represents and warrants to the Company, as of the date hereof, the
following:
(a) the Investor is a limited liability company duly organized, validly
existing, and in good standing under the laws of Anguilla, with full
power and authority, and all necessary consents, authorizations,
approvals, orders and licenses to enter into, execute and perform
this Agreement and the License Agreement (collectively, the
"Agreements"), which Agreements, once executed by the Investor,
shall be the valid and binding obligation of such party, enforceable
against such party by any court of competent jurisdiction in
accordance with its terms;
(b) the Investor is not bound by or subject to any contract, agreement, law,
court order or judgment, administrative ruling, regulation or any other
item which prohibits or restricts such party from entering into and
performing the Agreements in accordance with their respective terms, or
requiring the consent of any third party prior to the entry into or
performance of each of the Agreements in accordance with its respective
terms by such party;
(c) with respect to the Shares being acquired by the Investor:
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(i) the Investor is acquiring the Shares for his own account, and
not with a view toward the subdivision, resale, distribution,
or fractionalization thereof; the Investor has no contract,
undertaking, or arrangement with any person to sell, transfer,
or otherwise dispose of the Shares (or any portion thereof
hereby subscribed for), and has no present intention to enter
into any such contract, undertaking, agreement or arrangement;
(ii) the subscription for Shares by the Investor is not the result
of any form of general solicitation or general advertising;
(iii) the Investor hereby acknowledges that: (A) the offering of the
Shares was made only through direct, personal communication
between the Investor and the Company; (B) the Investor has had
full access to material concerning the Company's planned
business and operations, which material was furnished or made
available to the Investor by officers or representatives of
the Company; (C) the Company has given the Investor the
opportunity to ask any questions and obtain all additional
information desired in order to verify or supplement the
material so furnished; and (D) the Investor understands and
acknowledges that a purchaser of the Shares must be prepared
to bear the economic risk of such investment for an indefinite
period because of: (I) the heightened nature of the risks
associated with an investment in the Company due to its status
as a development stage company; (II) illiquidity of the Shares
due to the fact that (1) the Shares have not been registered
under the Securities Act of 1933 (the "Act") or any state
securities act (nor passed upon by the SEC or any state
securities commission), and (2) the Shares may not be
registered or qualified by the Investor under federal or state
securities laws solely in reliance upon an available exemption
from such registration or qualification, and hence such Shares
cannot be sold unless they are subsequently so registered or
qualified, or are otherwise subject to any applicable
exemption from such registration requirements; and (3)
substantial restrictions on transfer of the Shares, as set
forth by legend on the face or reverse side of every
certificate evidencing the ownership of the Shares;
(d) the Investor is an "accredited investor" as such term is defined in
Rule 501 of Regulation D promulgated by the Securities and Exchange
Commission under the Act; and
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(e) the Investor has been advised to consult and has consulted with an
attorney regarding legal matters concerning the purchase and
ownership of the Shares, and with a tax advisor regarding the tax
consequences of purchasing such Shares.
5. Undertaking with Respect to Registration of the Shares. The Company hereby
agrees with the Investor, in the event of any subsequent registration of
the Company's Common Stock for public sale with the Securities and
Exchange Commission in the twelve (12) month period following the
Effective Date of this Agreement, that it shall undertake, at the request
of the Investor, to include in such registration all of the Shares
subscribed for pursuant hereto, subject to approval by the Company and its
underwriter(s) in such public offering. If the underwriter(s) should
determine that inclusion of all applicable Shares in such public offering
is not possible, or would impair or restrict in any way the ability of
such underwriter(s) to offer and sell the Common Stock covered by such
registration, then the Company shall endeavor to include such number of
Shares therein as the underwriter(s) will allow, after giving priority to
the Common Stock being offered by the Company for its own account and such
other selling stockholders as the Company may be obligated to include in
such offering. All costs and expenses incurred in such registration shall
be borne by the Company, other than the Investor's pro rata portion of the
underwriters' costs and the selling commission and discounts payable in
respect of such public offering.
6. Miscellaneous Provisions.
(a) Notices. All notices, requests, demands and other communications to
be given hereunder shall be in writing and shall be deemed to have
been duly given on the date of personal service or transmission by
fax if such transmission is received during the normal business
hours of the addressee, or on the first business day after sending
the same by overnight courier service or by telegram, or on the
third business day after mailing the same by first class mail, or on
the day of receipt if sent by certified or registered mail,
addressed as set forth below, or at such other address as any party
may hereafter indicate by notice delivered as set forth in this
Section 6(a):
If to Investor: Billfighter Investments Limited
Hannah Waiver House,
The Valley, Anguilla BWI
Attention: Xxxxxxxxx Xxxxxx
If to Company: Reclamation Consulting and Applications, Inc.
00000 Xxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxx Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxx
President
Tel: (000) 000-0000
Fax: (000) 000-0000
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With a copy (which shall
not constitute notice) to: August Law Group, P.C.
00000 Xxx Xxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. August
President
Tel: (000) 000-0000
Fax: (000) 000-0000
(b) Binding Agreement; Assignment. This Agreement shall constitute the
binding agreement of the parties hereto, enforceable against each of
them in accordance with its terms. This Agreement shall inure to the
benefit of each of the parties hereto, and their respective
successors and permitted assigns; provided, however, that this
Agreement may not be assigned (whether by contract or by operation
of law) by the Investor without the prior written consent of the
Company.
(c) Entire Agreement. This Agreement constitutes the entire and final
agreement and understanding between the parties with respect to the
subject matter hereof and the transactions contemplated hereby, and
supersedes any and all prior oral or written agreements, statements,
representations, warranties or understandings between the parties,
all of which are merged herein and superseded hereby.
(d) Waiver. No waiver of any provision of this Agreement shall be deemed
to be or shall constitute a waiver of any other provision, whether
or not similar, nor shall any waiver constitute a continuing waiver.
No waiver shall be binding unless executed in writing by the party
making the waiver.
(e) Headings. The headings provided herein are for convenience only and
shall have no force or effect upon the construction or
interpretation of any provision hereof.
(f) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
(g) Further Documents and Acts. Each party agrees to execute such other
and further documents and to perform such other and further acts as
may be reasonably necessary to carry out the purposes and provisions
of this Agreement.
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(h) Governing Law; Venue. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of
California applicable to the performance and enforcement of
contracts made within such state, without giving effect to the law
of conflicts of laws applied thereby. In the event that any dispute
shall occur between the parties arising out of or resulting from the
construction, interpretation, enforcement or any other aspect of
this Agreement, the parties hereby agree to accept the exclusive
jurisdiction of the Courts of the State of California sitting in and
for the County of Orange. In the event either party shall be forced
to bring any legal action to protect or defend its rights hereunder,
then the prevailing party in such proceeding shall be entitled to
reimbursement from the non-prevailing party of all fees, costs and
other expenses (including, without limitation, the reasonable
expenses of its attorneys) in bringing or defending against such
action.
(j) Specific Performance; Remedies Cumulative. The parties hereby agree
with each other that, in the event of any breach of this Agreement
by any party where such breach may cause irreparable harm to any
other party, or where monetary damages may not be sufficient or may
not be adequately quantified, then the affected party or parties
shall be entitled to specific performance, injunctive relief or such
other equitable remedies as may be available to it, which remedies
shall be cumulative and non-exclusive, and in addition to such other
remedies as such party may otherwise have at law or in equity.
(k) Severable Provisions. The provisions of this Agreement are
severable, and if any one or more provisions is determined to be
illegal, indefinite, invalid or otherwise unenforceable, in whole or
in part, by any court of competent jurisdiction, then the remaining
provisions of this Agreement and any partially unenforceable
provisions to the extent enforceable in the pertinent jurisdiction,
shall continue in full force and effect and shall be binding and
enforceable on the parties.
[SIGNATURE PAGE FOLLOWS ON NEXT PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first above written.
THE COMPANY:
RECLAMATION CONSULTING
AND APPLICATIONS, INC. ATTEST:
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxxx Xxxxxx
-------------------- ------------------
Xxxxxx Xxxxxx Xxxxxxx Xxxxxx
President Secretary
BILLFIGHTER INVESTMENTS, LIMITED
By: /s/ Xxxxxxxxx Xxxxxx
--------------------
Name: Xxxxxxxxx Xxxxxx
Authorized Signatory
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EXHIBIT B
PROMISSORY NOTE
$180,000 Lake Forest, California
January 4, 2006
FOR VALUE RECEIVED, the undersigned, RECLAMATION CONSULTING
AND APPLICATIONS, INC., a Colorado corporation (together with its successors and
assigns, the "Borrower"), hereby promises to pay to the order of BILLFIGHTER
INVESTMENTS, LIMITED, an Anguilla limited liability company (together with its
successors and assigns, the "Lender"), at the Lender's offices located at Hannah
Waiver House, The Valley, Anguilla BWI (or such other place as the Lender may
designate in writing to the Borrower), the aggregate principal sum of One
Hundred Eighty Thousand Dollars ($180,000) with interest with interest on the
balance outstanding from time to time at the rate of ten percent (10%) per
annum., in lawful money of the United States, upon the terms and subject to the
conditions set forth herein. This unsecured promissory note (the "Note") is the
promissory note referred to Section 3.3 of the License Agreement, dated of even
date herewith (the "License Agreement") by and between the Lender and the
Borrower.
1. Payment and Prepayment.
(a) Repayment of Principal and Interest. The entire unpaid principal
balance, together with any accrued interest and other unpaid charges
or fees hereunder, shall be due and payable on first anniversary of
the date hereof (the "Maturity Date").
(b) Prepayment. Prepayment in whole or part may occur at any time
hereunder without penalty or premium; provided that the Lender shall
be provided with not less than ten (10) days notice of the
Borrower's intent to pre-pay; and provided further that any such
partial prepayment shall not operate to postpone or suspend the
obligation to make, and shall not have the effect of altering the
time for payment of the remaining balance of the Note as provided
for above, unless and until the entire obligation is paid in full.
All payments received hereunder shall be applied, first, to any
costs or expenses incurred by Lender in collecting such payment or
to any other unpaid charges or expenses due hereunder; second, to
accrued interest; and third, to principal.
2. Events of Default. The occurrence and continuation of any one or more of
the following events shall constitute an event of default under this Note
("Event of Default"):
(a) Payment Default. The Borrower shall fail to make any required
payment of principal of or interest on this Note and such failure
shall continue for more than five (5) business days after written
notice from the Lender to the Borrower thereof.
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(b) Bankruptcy Default. The Borrower shall (i) commence any case,
proceeding or other action under any existing or future law of any
jurisdiction relating to seeking to have an order for relief entered
with respect to it or its debts, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution,
composition or other such relief with respect to it or its debts, or
seeking appointment of a receiver, trustee, custodian or other
similar official for it or for all or substantially all of its
assets (each of the foregoing, a "Bankruptcy Action"); (ii) become
the debtor named in any Bankruptcy Action which results in the entry
of an order for relief or any such adjudication or appointment
described in the immediately preceding clause (i), or remains
undismissed, undischarged or unbonded for a period of sixty (60)
days; or (iii) make a general assignment for the benefit of its
creditors.
In each and every Event of Default under clause (a) of this Section 2, the
Lender may, without limiting any other rights it may have at law or in equity,
by written notice to the Borrower, declare the unpaid principal of and interest
on this Note due and payable, whereupon the same shall be immediately due and
payable, without presentment, demand, protest or other notice of any kind, all
of which the Borrower hereby expressly waives, and the Lender may proceed to
enforce payment of such principal and interest or any part thereof in such
manner as it may elect in its discretion. In each and every Event of Default
under clause (b) of this Section 3, the unpaid principal of and interest on this
Note shall be immediately due and payable without presentment, demand, protest
or notice of any kind, all of which the Borrower hereby expressly waives, and
the Lender may proceed to enforce payment of such principal and interest or any
part thereof in such manner as it may elect in its discretion.
3. Notices. All notices, requests, demands or communications required or
permitted under this Note shall be given in accordance with the provisions
applicable to the giving of notices in the License Agreement.
4. Waivers, Rights and Remedies.
(a) Waiver. No failure, delay or course of dealing on the part of the
Lender in exercising any right, power or privilege under this Note shall operate
as a waiver thereof, nor shall any single or partial exercise of any right,
power or privilege hereunder preclude the simultaneous or later exercise of any
other right, power or privilege hereunder. The Borrower hereby waives to the
extent not prohibited by applicable law (i) all presentments, demands for
performance or notices of nonperformance (except to the extent specifically
required under Section 3); (ii) any requirement of diligence or promptness on
the part of the Lender to enforce its rights under this Note; (iii) any and all
notices of every kind and description which may be required to be given by any
law; and (iv) any defense of any kind (other than payment) which it may now or
hereafter have with respect to its obligations under this Note.
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(b) Rights and Remedies. The rights and remedies herein expressly provided
are cumulative and not exclusive of any rights or remedies which the Lender may
otherwise have. 5. Indemnification. The Borrower shall pay and shall indemnify
and hold the Lender harmless against any and all costs and expenses, including
reasonable attorneys' fees and disbursements, actually incurred by the Lender
for the collection of this Note upon an Event of Default.
6. Governing Law; Venue for Suit; Jurisdiction of Court. This Note shall be
governed by and construed in accordance with the internal laws of the State of
California applicable to the performance and enforcement of contracts made
within such state, without giving effect to the law of conflicts of laws applied
thereby. In the event that any dispute shall occur between or among the Parties
arising out of or resulting from the construction, interpretation, enforcement
or any other aspect of this Note, the Parties hereby agree to accept the
exclusive jurisdiction of the Courts of the State of California sitting in and
for the County of Orange. The Parties hereby agree that venue is proper in those
courts, hereby consent to such venue in and personal jurisdiction over them by
those courts, and hereby waive all objections to such venue and to the courts'
personal jurisdiction over them.
7. Amendment. No amendment or other modification of this Note may be made
without the written consent of the Lender.
THE BORROWER
RECLAMATION CONSULTING
AND APPLICATIONS, INC.
/s/ Xxxxxx X. Xxxxxx
--------------------
Xxxxxx Xxxxxx
President
THE LENDER
BILLFIGHTER INVESTMENTS LIMITED
/s/ Xxxxxxxxx Xxxxxx
--------------------
Xxxxxxxxx Xxxxxx
Authorized Signatory
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