EXHIBIT 10.3
LICENSE ACQUISITION AGREEMENT
AGREEMENT, made this 6th day of October, 2000, by and between Xxxxx
Xxxxxxxx, Xxxxxxxx XxXxxxx and Xxxxxxx XxXxxxx, all with a principal place of
business at 000 Xxxxxxxx Xxxxx, Xxxxx 0, Xxxxxxx, Xxxxxxxxxxx 00000
(collectively, the "Licensors"), EC 2000 LLC, a Connecticut Limited Liability
Company (the "LLC") with a principal place of business at 000 Xxxxxxxx Xxxxx,
Xxxxx 0, Xxxxxxx, Xxxxxxxxxxx 00000 and EC 2000, Inc., a Delaware corporation,
with a principal place of business at 000 Xxxx 00xx Xxxxxx, Xxxxx 000, Xxx Xxxx,
Xxx Xxxx 00000 (the "Licensee").
WITNESSETH, In consideration of the mutual covenants, agreements,
representations and warranties herein contained, and intending to be legally
bound, the parties agree as follows:
ARTICLE 1
LICENSE OF INTELLECTUAL PROPERTY
1.1 LICENSE. Subject to the terms and conditions of this Agreement and
the representations and warranties herein and the license agreement to be
entered into by and between the Licensor and Licensee (the "License Agreement"),
a copy of which is attached as Exhibit 1 hereto, Licensee will, at the Closing
(as that term is defined in Section 1.3 below) acquire from Licensor, the
exclusive license in the territories delineated on Schedule I for a proprietary
fuel technology Foreign patent application: Italy VT99A000003 04/12/1999 and
U.S. Patent Application Number 09/546, 362 (Pending) (the "Intellectual
Property").
1.2 PURCHASE PRICE. The purchase price for the license of the
Intellectual Property shall be 9,250,000 shares of common stock of the Licensee
(the "Acquisition Shares" and/or the "Purchase Price"). The Acquisition Shares
shall be delivered to Licensors at Closing.
1.3 CLOSING. The consummation of the transactions contemplated herein
(the "Closing") shall take place at 10:00 A.M. on October 6, 2001 (the
"Closing Date") or such later date as may be agreed upon by the parties. The
Closing shall take place at the offices of Xxxxx & Xxxxxxx, LLP, 0 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
1.4 ACCESS AND INFORMATION. Between the date hereof and Closing,
Licensors shall give Licensee and its accountants, counsel, and other
representatives access, during normal business hours, to Licensors's books and
records relating to the Intellectual Property. Licensee and its agents shall
keep such information confidential until the Closing.
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ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF LICENSORS
Licensors represent and warrant to Licensee as of the date hereof and
as of Closing, the following:
2.1 AUTHORITY. Licensors have full power and authority to license the
Intellectual Property.
2.2 COMPLIANCE. Neither the execution and delivery of this Agreement,
nor the consummation by Licensors of any of the transactions contemplated hereby
will result in a breach of any applicable statute or regulation, or of any
administrative or court order or decree; nor will such compliance conflict with
or result in the breach of any term, provision, covenant or condition of any
agreement or other instrument to which Licensors are a party or by which they
may be bound.
2.3 LITIGATION. No suit, action, administrative, arbitration, or other
legal proceeding or governmental investigation is pending, or to Licensors's
knowledge is threatened against the Intellectual Property. There are no
outstanding judgments, decrees, or orders against the Licensors which affect the
Intellectual Property in any way.
2.4 EFFECT OF AGREEMENT. The terms and conditions of this Agreement and
all other instruments and agreements to be delivered by Licensors to Licensee
under the terms hereof, including the License Agreement, are valid, binding, and
enforceable against the Licensors in accordance with their terms, subject only
to the applicable bankruptcy, moratorium, and other laws generally affecting the
rights and remedies of creditors.
2.5 INVESTMENT REPRESENTATION. The Licensors and the LLC, in the event
the Acquisition Shares are issued and/or transferred to the LLC, represent and
confirm to the Licensee that they (1) are accredited Investors within the
meaning of Rule 501(a) under the Securities Act of 1933, as amended (the
"Securities Act") or, if not accredited investors, have alone or together with a
purchaser representative within the meaning of Rule 501(h) under the Securities
Act, such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of an investment in the securities of
the Licensee of the type contemplated by this Agreement; (2) are aware of the
limits on resale of the Acquisition Shares imposed by virtue of the nature of
the transaction; and (3) will receive and accept at the Closing the Acquisition
shares for investment, and without any view to the sale, resale of other
distribution thereof, in any manner that is in violation of the Securities Act,
except, Licensors shall in their discretion, may assign and transfer the
Acquisition Shares to the LLC. The
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certificates representing the Acquisition Shares, when delivered to the stock
records of the Licensors at the Closing, may have appropriate orders restricting
transfer placed against them on the Licensee and/or at the transfer agent for
such securities and may have placed upon them a legend in substantially the
following form:
"THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND MAY BE SOLD, TRANSFERRED OR ENCUMBERED
ONLY PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT. PURSUANT TO A NO-ACTION LETTER FROM THE STAFF
OF THE SECURITIES AND EXCHANGE COMMISSION OR PURSUANT TO AN
OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED."
The Licensors agree not to attempt any transfer of any of the Acquisition Shares
without first complying with the substance of said legend.
2.6 SECURITIES AND EXCHANGE COMMISSION FILING. Licensors agree to
cooperate with the Licensee in connection with its filing of a registration
statements on Form 10-SB with the Securities and Exchange Commission (the
"Registration Statement") and complete Officers' Directors' and Principal
Shareholders' Questionnaires in connection therewith.
2.7 REPRESENTATION AND WARRANTIES. No representation or warranty by
Licensors in this Agreement or any documents provided hereunder, including the
License Agreement, contains or will contain any untrue statement of material
fact or omit to state any material fact necessary to make the statements
contained herein and therein not misleading. All representations and warranties
made by Licensors in this Agreement, the License Agreement and all documents
provided hereunder shall be true and correct as of the date of Closing with the
same force and effect as if they had been made on and as of such date.
2.8 DUE PERFORMANCE. Licensors have in all material respects performed
all obligations required to be performed by it under, and are not in default in
any material respect under, or in violation in any material respect of any
agreement or undertaking, oral or written, relating to the Intellectual Property
to which they are parties or by which they are bound, or by which the
Intellectual Property may be materially affected. Except as expressly set forth
on the Statement of Issues annexed hereto as SCHEDULE II. Licensors are not in
violation or default in any material respect of any judicial, administrative, or
governmental order, writ, rule, regulation, injunction, or decree relating to
the Intellectual Property. The execution and delivery of this Agreement, the
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License Agreement and the consummation of the transactions contemplated herein
and therein, will not result in any violation or default referred to in this
paragraph.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF LICENSEE
Licensee represents and warrants to Licensors as follows:
3.1 CORPORATE ORGANIZATION. Licensee is duly organized, validly
existing and in good standing under the laws of the State of Delaware, and has
full power and authority to enter into this Agreement and perform the
transactions contemplated herein.
3.2 CAPITALIZATION. The authorized capital stock of the Licensee
consists of 80,000,000 shares of common stock, $.001 par value and 20,000,000
shares of preferred stock, par value $.001 per share. There is no other capital
stock authorized for issuance. As of the date hereof, 9,250,000 shares of common
stock were validly issued and outstanding, fully paid, and non-assessable with
no preferred stock outstanding. Other than the Acquisition Shares and 2,000,000
shares to be issued upon the completion of an offering pursuant to Regulation S
of the Securities Act subsequent to the Closing, there are no outstanding
options, warrants, or other rights, agreements, or commitments (contingent or
otherwise) obligating the Licensee to issue any additional shares of capital
stock.
3.3 ACQUISITION SHARES. The Acquisition Shares, when issued in
accordance with the terms of this Agreement, will be validly issued fully paid,
and non-assessable.
3.4 FOUNDERS SHARES. Of the 9,250,000 shares outstanding as of the date
of this Agreement, 3,000,000 of such shares are owned by the founders of the
Licensee and/or their assign and are subject to the restrictions set forth in
Section 2.5 hereof and 6,250,000 shares are shares issued in the Licensee's
offering pursuant to Rule 504 of Regulation D of the Securities Act and freely
transferable.
3.5 CORPORATE AUTHORITY. The execution and delivery of this Agreement
and the carrying out of the provisions hereof have been duly authorized by
Licensee's Board of Directors and Licensee shall furnish to Licensors, duly
certified copies of such authorizing resolutions. This Agreement is binding upon
and enforceable against Licensee in accordance with its terms and is not in
violation of the provision of any judicial, governmental or administrative
decree, order, writ, injunction, or judgment, or in conflict with or will result
in the breach of, or constitute a default under, Licensee's Certificate of
Incorporation or bylaws or any capital stock
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provision to which Licensee may be subject, or any mortgage, indenture,
contract, agreement, or other instrument to which Licensee is a party or by
which it may be bound.
3.6 BINDING NATURE. This Agreement shall be, when duly executed and
delivered, a legal and binding obligation of Licensee, enforceable in accordance
with its terms.
3.7 REPRESENTATIONS AND WARRANTIES. No representation or warranty by
Licensee in this Agreement contains or will contain any untrue statement of
material fact or omit to state a material fact necessary to make the statements
contained herein not misleading. All representations and warranties made by
Licensee in this Agreement shall be true and correct as of the Closing with the
same force and effect as if they had been made on as of such date.
3.8 COMPLIANCE WITH SECURITIES LAWS. To the best of Licensee's
knowledge, neither Licensee nor any officer, director, affiliate, or controlling
person of Licensee has committed any violation, or been in any way in
contravention, of any law, rule or regulation governing transactions in
securities, in connection with the transactions herein.
3.9 VALUE. Licensee has formed its own opinion as to the value of the
Intellectual Property being licensed hereunder. The parties agree that
Licensors's warranties include only the express written warranties that are
contained in this Agreement and the License Agreement.
3.10 NO LITIGATION. No actions or proceedings are pending or, to
Licensee's best knowledge, threatened before any court, administrative
authority, or other authority that might material or adversely affect Licensee's
ability or right to perform all of its obligations hereunder.
ARTICLE 4
CONDITIONS
4.1 CONDITIONS TO LICENSORS'S OBLIGATIONS. Licensors's obligations to
complete the Closing hereunder are, unless waived, subject to the following
conditions:
(a) All Licensee's representations and warranties contained in
this Agreement shall be true in all material respects as of at the Closing.
(b) Licensee shall have performed and complied with all of its
agreements, terms, and conditions under this Agreement on or before the Closing.
(c) At the Closing, the Licensee shall have in its bank
account, from the
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proceeds of an offering pursuant to Rule 504 of Regulation D of the Securities
Act, approximately U.S. $1,000,000 in cash, less any fees expended in connection
with the offering, this Agreement, the License Agreement and the Registration
Statement, including all professional fees.
(d) Licensors shall have received an opinion of Licensee's
counsel, dated the Closing Date, in form and substance reasonably satisfactory
to Licensors's counsel, stating that:
(i) Licensee is a corporation duly organized and
existing in good standing under the laws of the State of Delaware.
(ii) Licensee has full power and authority to make,
execute, deliver, and perform this Agreement, all corporate and other
proceedings required to be taken by Licensee, its directors and shareholders to
authorize Licensee to enter into and carry out this Agreement and the
transactions contemplated hereby have been duly and properly taken; and this
Agreement constitutes a valid obligation binding upon Licensee in accordance
with its terms;
(iii) The execution, delivery, and consummation of
this Agreement does not conflict with, result in a breach of, or constitute a
default under, Licensee's Articles of Incorporation or bylaws, or any material
agreement or instrument of which such counsel has knowledge and to which
Licensee is a party or by which it is bound.
(e) Licensee shall not be in bankruptcy or similar
proceedings.
4.2 CONDITIONS TO LICENSEE'S OBLIGATIONS. Licensee's obligations to
complete the Closing under this Agreement are, unless waived, subject to
fulfillment by Licensors of each of the following conditions:
(a) At the Closing, Licensee shall have entered into the
Licensee Agreement with Licensee.
(b) All representations and warranties of the Licensors
contained in this Agreement and License Agreement shall be true in all material
respects as of and at the Closing Date with the same effect as if they had been
made on and as of Closing, except as otherwise contemplated or specifically
permitted by the terms hereof.
(c) Licensors shall have performed and complied with all of
their agreements, terms, and conditions under this Agreement on or before the
Closing Date.
(d) Licensee shall have received an opinion of Licensors's
counsel, dated the Closing Date, in form and substance reasonably satisfactory
to Licensee's counsel stating that:
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(i) Licensors have the full power and authority to
make, execute, deliver, and perform this Agreement and the License Agreement and
this Agreement and the License Agreement constitute valid obligations binding
upon Licensors in accordance with their terms.
(ii) After diligent investigation, counsel does not
know of any litigation proceeding or governmental investigation pending or
threatened against or relating to the Intellectual Property.
(iii) The execution, delivery, and consummation of
this Agreement and the License Agreement does not conflict with, result in the
breach of, or constitute a default under any material agreement or instrument of
which counsel has knowledge and to which Licensors is a party or by which it is
bound.
(iv) After diligent investigation, counsel does not
know of anything materially and/or adversely affecting the Intellectual
Property.
(v) Licensors have complied with all applicable laws
and regulations applicable to the transactions contemplated to be performed by
them hereunder.
(vi) Neither the execution and delivery of the
Agreement and the License Agreement, nor Licensors's compliance with the terms
and provisions hereof will result in the breach of any applicable statute or
regulation, or of any administrative or court order or decree, nor will such
compliance conflict with or result in the breach of any of the terms,
provisions, covenants, or conditions of any agreement or other instruments to
which Licensors are a party, or by which hey are or may be bound.
(vii) This Agreement, the License Agreement and all
of the instruments and agreements delivered by Licensors to Licensee on the
Closing Date hereof are legal, valid, and binding obligations of Licensors,
enforceable in accordance with their terms, subject only to the rights and
remedies of creditors arising under applicable bankruptcy, moratorium, and other
laws.
(viii) There is no suit, action, administrative,
arbitration or other legal proceeding or governmental investigation, affecting
the Intellectual Property, pending or, to the best of counsel's knowledge, after
due inquiry, threatened against Licensors, which might materially or adversely
affect the transfer of the Intellectual Property by the Licensors;
(e) Licensee shall not be in bankruptcy or similar
proceedings.
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4.3 WAIVERS AND CONSENTS. Licensors shall use their best efforts to
obtain all written waivers and consents that are required, or reasonably
requested by Licensee, in connection with the licensing of the Intellectual
Property in accordance with the terms of this Agreement and the License
Agreement.
ARTICLE 5
CLOSING OBLIGATIONS
5.1 LICENSORS'S OBLIGATIONS AT CLOSING. At the Closing, Licensors shall
execute and/or deliver to Licensee:
(a) The License Agreement
(b) Opinion of Licensors's counsel as provided above.
(c) All other instruments and documents elsewhere required
herein.
5.2 LICENSEE'S OBLIGATIONS AT CLOSING. At Closing, Licensee shall
execute and/or deliver to Licensors:
(a) The Acquisition Shares as provided for herein.
(b) The License Agreement
(c) An opinion of Licensee's counsel as required above.
(d) True and complete copies of resolutions duly adopted by
Licensee's Board of Directors and, if required its shareholders and duly
certified by the Secretary of the Licensee which provide all necessary corporate
authorization for the execution and carrying out of this Agreement and its
provisions.
(e) A certificate signed by Licensee certifying as to the
truth and accuracy of representations and warranties set forth in this Agreement
on the Closing Date as if originally made on such date and the fulfillment of
the covenants and agreements as of the Closing.
5.3 OBLIGATIONS OF LICENSOR. Following completion of Due Diligence by
Licensee, Licensor shall perform all acts necessary in order to effect all
conditions, terms and provisions of this Agreement, including, but not limited
to, furnishing Licensee, its nominees or patent
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attorneys, all information and documents relating to the Intellectual Property
which are necessary to prosecute patent applications, and executing any Amended
License Agreement(s).
ARTICLE 6
MISCELLANEOUS
6.1 BROKERAGE. Each party represents and warrants to the other that no
broker is entitled to any commission, or similar fee, in connection with the
making and carrying out of this Agreement.
6.2 INDEMNIFICATION. Licensors shall defend, indemnify, and hold
Licensee harmless against any loss, damage, claim of third parties, actions,
suits, demand, judgments, or expenses (including legal and other fees and
charges) incurred or sustained by Licensee as a result of or attributable to any
misrepresentation or breach of any representation, warranty, covenant, or
agreement herein or in the License Agreement given or made by Licensors.
Licensee shall defend, indemnify, and hold Licensors harmless against any loss,
damage, claim of third parties, actions, suits demands, judgments, or expense
(including legal and other fees and charges), incurred or sustained by Licensors
as a result of or attributable to any misrepresentation or breach of any
representation, warranty, covenant, or agreement herein given or made by
Licensee herein and in the License Agreement.
6.3 ENTIRE AGREEMENT: MODIFICATION. This Agreement supersedes all prior
agreements and with the License Agreement constitutes the entire agreement
between the parties hereto with regard to the subject matter hereof. It may not
be amended or modified except by an instrument executed by both parties.
6.4 NOTICES AND COMMUNICATIONS. Any notice, payment, request,
instruction, or other document to be delivered hereunder shall be deemed
sufficiently given if in writing and delivered personally or mailed by certified
mail, postage prepaid, if to Licensee, addressed to it at the address first set
forth above, with one copy to Xxxxx & Schloss, LLP, 0 Xxxx 00xx Xxxxxx, Xxx
Xxxx, xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxx, Esq., unless in each case,
such parties have notified the other parties in writing of a different address.
6.5 NON-WAIVER. No delay or failure by either party to exercise any
right hereunder, and no partial or single exercise of any such right, shall
constitute a waiver of that or any other right, unless otherwise expressly
provided herein.
6.6 HEADINGS. Headings in this Agreement are for convenience and
reference only and shall not be used to interpret or construe its provisions.
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6.7 GOVERNING LAW. This Agreement and all other documents relating to
this Agreement and the License Agreement shall be governed by the laws of the
state of New York, excepting applicable Federal law and except only to the
extent precluded by mandatory application of another state or foreign
jurisdictions' laws. Whenever possible, each provision of this Agreement shall
be interpreted in such a manner as to be effective and valid under applicable
law, but if any provision of this Agreement or any part of such provision shall
be prohibited by or invalid under applicable law, such provision or part thereof
shall be ineffective to the extent of such prohibition or invalidity without
invalidating the remainder of such provisions or the remaining provisions of
this Agreement.
6.8 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
6.9 BINDING EFFECT. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective legal representatives,
successors, and assigns.
6.10 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. Except as otherwise
expressly limited in this Agreement or the Schedules annexed, the parties'
representations and warranties extended hereunder shall survive the Closing.
Each party against whom liability is asserted hereunder shall be given the
opportunity to participate, directly or through its authorized representative,
at its expense, in the conduct of any negotiations relating to the settlements
of any liability or other proceeding instituted by a third party against either
Licensors or Licensee, as the case may be, giving rise to the alleged breach.
6.11 EXPENSES. Except as otherwise expressly provided herein, each
party shall pay all of its own expenses incidental to the negotiation and
preparation of the documentation and financial statements relating to this
Agreement, and for entering into and carrying out the terms and conditions
thereof and consummating the transactions, regardless of whether they are
consummated.
6.12 PAYMENT OF TAXES. All fees, costs, charges, and expenses payable
to any federal, state, or municipal authority, including, without limitation,
all filing fees, documentary stamps, and transfer, sales and other taxes
required to be paid, or imposed in connection with the transfer of the
Intellectual Property under the terms of this Agreement and the License
Agreement shall be paid by Licensors.
6.13 ASSIGNMENT. Except as may otherwise be expressly provided herein,
neither party may assign any right, obligation, or liability arising hereunder
without the other party's prior written consent. Any such assignment or
attempted assignment shall be null and void.
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6.14 CONFIDENTIALITY. Prior to the Closing of the transactions
contemplated hereunder, the parties shall keep confidential the existence of
this Agreement, the License Agreement, the transactions described herein, and
all information obtained from the other concerning the Intellectual Property.
However, the covenants contained in this paragraph 6.14 shall not apply in
respect to any information which (a) was already known to either party when such
information was received from the other, (b) was readily available to the
general public at the time of such receipt, (c) subsequently becomes known to
the general public through no fault or omission by the other party, (d) is
subsequently disclosed by a third party which has the bona fide right to make
such disclosure, or (e) is required to be disclosed by law or a governmental
agency.
6.15 THIRD PARTY BENEFICIARIES. Except for their proper heirs,
successors, and assigns, the parties intend that no third party shall have any
rights or claims by reason of this contract.
6.16 FORUM. The parties hereto agree that any action or proceeding
arising out of or relating to this Agreement, the License Agreement or the
documents relating thereto, may be commenced in the Supreme Court of the State
of New York, New York County or in the District Court of the United States for
the Southern District of New York and each party agrees that a summons and
complaint commencing an action or proceeding in either of such courts shall be
properly served and shall confer personal jurisdiction if served personally or
by certified mail to each party at their address set forth in this Agreement, or
as otherwise provided under the laws of the State of New York. Further,
Licensors and the LLC hereby specifically consent to the personal jurisdiction
of the Supreme Court of the State of New York, New York county and the District
Court of the United States for the Southern District of New York and waive and
hereby acknowledge that they are estopped from raising any claim that either
such court lacks personal jurisdiction over them so as to prohibit either such
court from adjudicating any issues raised in a complaint filed with either such
court against them by the Licensee concerning this Agreement and the License
Agreement.
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In Witness Whereof, the parties have caused this Agreement to be duly
executed on the date first above written:
EC 2000, INC.
By: /s/ Xxxxxxxx X. Xxxxxx
----------------------------
Xxxxxxxx X. Xxxxxx, Chairman
/s/ Xxxxx Xxxxxxxx
----------------------------
Xxxxx Xxxxxxxx
/s/ Xxxxxxxx XxXxxxx
----------------------------
Xxxxxxxx XxXxxxx
/s/ Xxxxxxx XxXxxxx
----------------------------
Xxxxxxx XxXxxxx
With Respect to Articles of the
Agreement
EC 2000 LLC, a Connecticut
Limited Liability Company
By: /s/ Xxxxx Xxxxxxxx
----------------------------
Xxxxx Xxxxxxxx, Member
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LICENSE AGREEMENT
LICENSE AGREEMENT made and entered into as of October 6, 2000, among
Xxxxx Xxxxxxxx, Xxxxxxxx XxXxxxx, and Xxxxxxx XxXxxxx, all with a principal
office at 000 Xxxxxxxx Xxxxx, Xxxxx 0, Xxxxxxx, Xxxxxxxxxxx 00000 (hereinafter,
collectively, "Licensors") and EC 2000, Inc. a Delaware corporation, having
principal offices at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (hereinafter
"Licensee").
W I T N E S S E T H
Whereas the Licensors represent that they are the exclusive owners of
an invention relating to a fuel savings technology device (hereinafter
"Invention"); and
Whereas the Licensee desires to manufacture, market, and sell devices
based on or relating to the Invention, and
Now, therefore, it is agreed as follows:
1. License. For the Territory (hereinafter defined), the
Licensors grant to the Licensee, the exclusive, unlimited
irrevocable right and license, with the right to grant
sublicenses to third parties under Patents (hereinafter
defined) and under Information (hereinafter defined) to
manufacture, have manufactured, use, market, have marketed,
sell and have sold devices based on or relating to the
Invention (the "License"). The exclusive right and License
herein granted shall apply to all inventions, improvements,
patent applications and letters patent, which the Licensors
now own or control, or hereafter may own or control, and which
relate to the Invention and covered by letters patent of the
United States U.S. Patent Application Number 09/546,362
(Pending), _________, and ________ issued and owned by
Licensors (hereinafter "Patents"), and to all information and
documents, which the Licensors now own or control, or
hereafter may own or control, and which relate to the
Invention (hereinafter "Information").
2. Territory. United States, Canada, South America, Malaysia,
Singapore, Japan, Phillippines, Thailand, North Korea, South
Korea and China.
3. Representations of Licensor. The Licensors represent the
following:
a. that the invention is secret and has not been revealed to
anyone, except _____________, Licensor's patent attorney.
b. that the Licensors are the exclusive owners of all rights
to the Invention, Patents and Information, have the right to
grant this exclusive license for the Territory, and have not,
for the Territory, granted to any other person, firm, or
corporation any right, license shop right, or privilege
thereunder,
c. that the Licensors have at no time filed, or caused to be
filed, patent applications, or obtained in their name, or
caused to be obtained in the name of others, any letters
patent in the United States or elsewhere, based on or relating
to the Invention, Information or devices or methods similar to
the Invention.
4. Patent assistance and related information. The Licensors shall
furnish to the Licensee, its nominees or patent attorneys, all
information and documents relating to the Invention which are
necessary to prosecute patent applications.
5. Information. The Licensor shall furnish to the Licensee, or
its nominees all Information required by Licensee to
commercialize and exploit the Invention. The Licensors shall
not reveal the Invention or any Information to any other
person in the Territory without the written approval of the
Licensee.
6. Patents. The rights and License herein granted shall include
all inventions, improvements, enhancements and modifications
thereto made or conceived during the term of this Agreement
which Licensors own or control or hereafter own or control and
all patent applications and patents based on covering the same
which the Licensors now own or control or hereafter own or
control. The Licensors shall, without further consideration,
at the request of the Licensee, do all acts necessary for
obtaining, sustaining, reissuing, extending, defending and
enforcing Patents and any letters patent based on such
improvements to the Inventions and shall give testimony and
otherwise provide evidence as may be deemed necessary by
Licensee.
7. Consideration. The Licensee shall pay and deliver to the
Licensors, 9,250,000 shares of Licensees' common stock in
accordance with the terms of the License Acquisition
Agreement, a copy of which is attached to Exhibit 1 hereto.
8. Covenants of licensee. The Licensee covenants that it shall in
good faith conduct all manufacturing, marketing and promotion
of devices based on the Invention.
9. Term. This Agreement and the rights and licenses granted
hereunder shall continue in perpetuity.
10. Infringement. The Licensors hall defend, at their own expense,
all infringement suits that may be brought against Licensee or
its sublicensees based on or related to the manufacture, use,
or sale of the devices based on or using the Patents or
Information. In the event any information is brought to the
attention of Licensor that others, without benefit of license,
are infringing any of the rights granted pursuant to this
Agreement, Licensors shall, at its own expense, diligently
prosecute all such infringers. In any of the foregoing suits,
the Licensee may, at Licensee's expense, be represented by
counsel of his own choice.
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11. Notice. Any notice or payment required under this Agreement
shall be addressed to the Licensors and Licensees at the
addresses first set forth above, unless notice of a change in
address has been provided to the other parties and then to
that address.
12. Assignment. The Licensors shall not have the right to assign
this Agreement or any rights granted to Licensee hereunder
without the prior written consent of the Licensee. This
Agreement and the rights and licenses granted to the Licensee
hereunder may be assigned to a successor in interest of the
entire or of a substantial portion of the business of
Licensee.
13. Arbitration. Any dispute arising out of or related to this
Agreement shall be settled by arbitration in the city and
state of New York, by a panel of three arbitrators and
pursuant to the rules and procedures of the American
Arbitration Association.
In witness whereof, the parties have executed this Agreement.
/s/ Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx
/s/ Xxxxxxxx XxXxxxx
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Xxxxxxxx XxXxxxx
/s/ Xxxxxxx XxXxxxx
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Xxxxxxx XxXxxxx
3
