Exhibit 10.16
CONSULTING AGREEMENT
This Consulting Agreement (this "AGREEMENT") is made and entered into
by and between GLOBAL RESOURCE CORPORATION, a Nevada corporation (the
"COMPANY"), and 888 CORPORATION (the "CONSULTANT") as of this 1st day of
January, 2008.
WHEREAS, the Consultant is a sub-chapter S corporation that is owned
by Xxxxx X. Xxxxxxx ("Xxxxxxx"), and/or his designees, the inventor of the
microwave technology which is the basis for the trade secrets and patent
applications as set forth on SCHEDULE A hereto (the "TECHNOLOGY"), certain of
which Technology was transferred by Xx. Xxxxxxx to Mobilstream Oil, Inc.
("MOBILSTREAM") and thereafter owned by Mobilstream; and
WHEREAS, Carbon Resource Corporation ("CRC") and Mobilstream entered
into a license agreement pursuant to which Mobilstream granted CRC an exclusive
license for certain of the Technology (the "CRC LICENSE"); and
WHEREAS, in September 2006, the Company acquired substantially all of
the assets of CRC, including the CRC License (the "CRC ACQUISITION");
WHEREAS, in connection with the CRC Acquisition, the controlling
stockholder of the Consultant (Xx. Xxxxxxx), CRC, Mobilstream, Xxxx
Xxxxxxxxx-Xxxxxxx and the Company entered into that certain Combined Technology
Agreement, dated as of September 22, 2006 (the "COMBINED TECHNOLOGY AGREEMENT"),
which, among other things, set forth the terms of an exclusive license for the
Technology between the Company and Mobilstream which terms supersede and replace
the CRC License; and
WHEREAS, on December 31, 2006, the Company acquired from Mobilstream
all right, title and interest in and to the aforesaid Technology, which, by
operation of law, resulted in the termination of the Combined Technology
Agreement; and
WHEREAS, Xx. Xxxxxxx and CRC are parties to an employment agreement
entered into on January 1, 2005 (the "CRC EMPLOYMENT AGREEMENT"), pursuant to
which the CRC employed Xx. Xxxxxxx as its Chairman of the Board, President and
Chief Executive Officer, which agreement was not acquired by GRC in the CRC
Acquisition; and
WHEREAS, the Company acknowledges that (i) the Consultant, which is
owned and controlled by Xx. Xxxxxxx, the inventor of the Technology, has the
experience necessary for the exploitation of the Technology along with the
know-how and business contacts that the Company believes will be of value to the
Company's business (which consists of the former businesses of Mobilstream and
CRC) and (ii) Xx. Xxxxxxx has, at various times, had understandings with
Mobilstream and CRC regarding a royalty payment or similar type of compensation
in regard to the Consultant's contributions to the further development of the
Technology; and
WHEREAS, the Company terminated the CRC Employment Agreement and Xx.
Xxxxxxx'x employment thereunder, and desires to engage the Consultant as an
independent contractor under the terms and conditions set forth in this
Agreement, and the Consultant desires to accept such engagement as an
independent contractor subject to the terms and conditions set forth in this
Agreement.
WHEREAS, the Company acknowledges that the Consultant has previously
reconveyed a substantial number of its shares to the Company in consideration
for the benefits conveyed herein, and both parties acknowledge and agree that
this Agreement supersedes any and all agreements previously made.
NOW, THEREFORE, in consideration of the mutual promises, terms,
covenants, agreements and conditions set forth herein and performance of each,
the parties agree as follows:
1. INDEPENDENT CONTRACTOR STATUS: SCOPE OF SERVICES.
(a) SCOPE. Subject to the terms and conditions of this Agreement, the
Company hereby retains the Consultant as a consultant, and the Consultant hereby
accepts such retention by the Company to perform all such services as an
independent contractor to the Company and not as an employee, agent or
representative of the Company during the Term (as defined below). The Consultant
(or any Consultant Affiliate) shall not have power to make any contracts or
commitments for or on behalf of the Company, or to enter into any obligation
binding the Company in any manner. As an independent contractor, the Consultant
shall not participate in any employee benefits provided by the Company to its
employees, (except as hereinafter noted) including workers' compensation
insurance, disability, pension, or other employee plans. The Consultant assumes
full responsibility and liability for the payment of all federal, state and
local income, payroll and other taxes, if any, due on money it receives under
this Agreement, whether received prior to or after termination.
(b) SERVICES. Consultant agrees to act as consultant under the terms of
this Agreement and complete the tasks and perform the services as are set forth
in the Statement of Work attached hereto as SCHEDULE B, which schedule is hereby
made a part of this Agreement. During the term of this Agreement, Consultant
shall not be required to devote any specified amount of time to the provision of
the services hereunder and shall only be required to devote such reasonable
amount of time to the business of the Company as the Consultant shall reasonably
determine to be necessary to fulfill its duties hereunder. The Consultant shall
perform such services at the Company's headquarters in West Berlin, New Jersey
and the Consultant shall report to the Company's President with respect to the
services performed hereunder. The Consultant hereby covenants and agrees that
all of the services to be performed by it under this Agreement shall be done
solely by Xx. Xxxxxxx.
(c) TERMINATION OF CRC EMPLOYMENT AGREEMENT. The Company, the
Consultant and Xx. Xxxxxxx hereby acknowledge and agree that: (i) the CRC
Employment Agreement has been terminated along with all prior discussions,
negotiations, memoranda, correspondence, understandings and agreements
pertaining to the CRC Employment Agreement and/or the Company's employment of
Xx. Xxxxxxx thereunder or otherwise including his employment in 2007, and (ii)
as a result of such termination, none of the Company, the Consultant nor Xx.
Xxxxxxx shall have any further obligations or rights under the CRC Employment
Agreement and/or under any such prior discussions, negotiations, memoranda,
correspondence, understandings and agreements, including, but not limited to,
any severance or other post- employment obligations or rights. The provisions of
this Paragraph 1(c) supersede any and all other agreements, either oral or in
writing, and/or prior discussions, negotiations, memoranda, correspondence,
agreements (either oral or in writing) and understandings between the Company,
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Xx. Xxxxxxx individually and the Consultant and/or any Consultant Affiliate with
respect to the subject matter of this Paragraph 1(c).
(d) TERM. The term ("TERM") of this Agreement shall commence on
January 1, 2008 (the "EFFECTIVE Date") and shall expire, unless otherwise
terminated earlier in accordance with paragraph 7 hereof, on the last expiration
date of the patents covering the Technology set forth on SCHEDULE A hereto as
such Schedule may be amended from time to time pursuant to Paragraph 1(e) hereof
to reflect the issuance of additional patents pertaining to the Technology (the
"TERM").
2. COMPENSATION. For all services rendered by the Consultant to the
Company, the Company shall compensate the Consultant as follows:
(a) CONSULTING FEE. The consulting fee payable to Consultant during
each calendar year of the Term as set forth on SCHEDULE C hereto, which
consulting fee shall be payable biweekly in arrears, commencing on the Effective
Date. The Consultant shall be fully responsible and liable for the payment of
all federal, state and local income, payroll and other taxes, if any, due on the
consulting fees paid to it pursuant to this Paragraph 2. The Consultant shall
indemnify and hold the Company harmless from and against any claims asserted
against the Company by any taxing authority as a result of Consultant's failure
to collect or pay any tax it owes as a result of the payments it receives from
the Company.
(b) BUSINESS EXPENSES. The Company shall reimburse the Consultant for
Approved Expenses (as defined below), subject to and upon the Consultant's
presentation to the Company of appropriate documentation of such Approved
Expenses in accordance with the Company's written policies with respect thereto
as in effect from time to time. For purposes of this Paragraph 2(b), "APPROVED
EXPENSES" shall mean reasonable and necessary business expenses incurred by the
Consultant in connection with the performance of its services under this
Agreement.
3. NONCOMPETITION/NON-SOLICITATION AGREEMENT. In consideration of the
compensation paid or payable to Consultant by the Company pursuant to this
Agreement, the Consultant hereby agrees as follows:
(a) Consultant shall not, during the course of this contract, engage in
any venture of whatever nature or in any way engage for himself or for others,
in any business that sells products or services that compete with or are similar
to the products or services offered by the Company.
(b) The Consultant and each Consultant Affiliate agrees that it will,
during the Term of this Agreement which for purposes of this paragraph 3(b) is
defined ONLY as the last expiration date of the patents covering the Technology
set forth on SCHEDULE A hereto as such Schedule may be amended from time to time
pursuant to Paragraph 1(e) hereof to reflect the issuance of additional patents
(subject to Consultant's approval) pertaining to the Technology, promptly and
fully disclose to the Company any business opportunity coming to the
Consultant's attention, or conceived or developed in whole or in part by the
Consultant or any of its officers, directors, stockholders, staff, personnel,
employees, stockholders, affiliates or agents ("CONSULTANT Affiliates") which
relates to the use of the Technology, the Company's business and business
opportunities as described in the Company's filings under the Securities
Exchange Act of 1934 or anticipated business.
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(c) For the avoidance of doubt, at all times during the Term of this
Agreement and for the one (1) year period after its termination, and for all
purposes under this Agreement, Xx. Xxxxxxx shall be deemed to be a Consultant
Affiliate of the Consultant, regardless of his actual relationship or lack
thereof to the Consultant. The Consultant will not, during such times as are
covered by this Contract, exploit such business opportunities for its own gain
or that of any person or entity other than the Company.
(d) The existence of any claim or cause of action of the Consultant
against the Company, whether predicated on this Agreement or otherwise, shall
not preclude the Company's enforcement of any of the covenants contained in this
paragraph 3.
(e) The Consultant for itself and on behalf of each Consultant
Affiliate acknowledges and agrees that the covenants set forth in this paragraph
3: (i) are necessary and reasonable to protect the Company and the conduct of
its business, (ii) are a fair and reasonable restraint on the Consultant in
light of the activities and business of the Company on the date of execution of
this Agreement, the future plans of the Company and the Consultant's status as
an affiliate of the Company; and (iii) shall be construed and enforced in light
of the activities and business of the Company (including business activities in
the planning stage) on the date of termination of this Agreement or the
Consultant's agreement with the Company.
(f) The provisions of this paragraph 3 shall survive any termination of
this Agreement and are subject to paragraph 8 of this Agreement.
4. OWNERSHIP AND RETURN OF COMPANY PROPERTY.
(a) All products, records, designs, patents, trademarks, copyrights,
plans, manuals, memoranda, lists, correspondence with customers, suppliers,
vendors or affiliates of the Company, all reports, records charts, and
advertising materials and any data pertaining to the Company (except for those
items Consultant has excepted from this agreement), its affiliates or the
business of the Company or its affiliates and other documents or other property
of the Company in the possession, custody or control of the Consultant or any
Consultant Affiliates and all records (regardless of format, e.g., paper,
digital or electronic) which pertain to the business of the Company or its
affiliates (collectively the "Company Materials"), shall be and remain the
property of the Company and shall be subject at all times to its discretion and
control.
(b) All products, records, designs, patents, trademarks, copyrights,
plans, manuals, memoranda, lists, all correspondence with customers, suppliers,
vendors or affiliates of the Company, all reports, records charts, and
advertising materials and any data pertaining to the Company, its affiliates or
the business of the Company or its affiliates and other documents or other
property of the Company in the possession, custody or control of the Consultant
or any Consultant Affiliates and all records (regardless of format, e.g., paper,
digital or electronic) that was prepared by the Consultant or any Consultant
Affiliate (the "Consultant Materials") , shall be and remain the property of the
Company and shall be subject at all times to its discretion and control(except
for those items previously excepted by Consultant and not listed on Schedule A).
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(c) The Company Materials and the Consultant Materials shall be
delivered promptly to the Company without request on the date the Consultant's
engagement by the Company hereunder terminates or at any other time promptly
upon request by the Company.
5. INVENTIONS. (a) The Consultant shall disclose promptly to the
Company any and all conceptions and ideas for inventions, improvements and
valuable discoveries, whether patentable or not, which are conceived or made by
the Consultant or any Consultant Affiliate (except for those items excepted from
this Agreement and not listed on Schedule A) solely or jointly with another
during the Term, which for purposes of this paragraph 5(a) is defined ONLY as
the last expiration date of the patents covering the Technology set forth on
SCHEDULE A hereto as such Schedule may be amended from time to time pursuant to
Paragraph 1(e) hereof to reflect the issuance of additional patents pertaining
to the Technology, and which are related to the Technology or the business or
activities of the Company or its affiliates or which Consultant or any
Consultant Affiliate conceives as a result of the Company's engagement of the
Consultant hereunder (collectively, the "INVENTIONS"), and the Consultant hereby
assigns and agrees to assign all of its interests (and shall cause any
Consultant Affiliate to assign all of his, her or its interests) in the
Inventions to the Company or its nominee. For purposes of this Agreement,
Inventions shall not include New Technology (as defined below in Paragraph
5(b)). Whenever requested to do so by the Company, the Consultant shall (i)
deliver to the Company all records relating to the Inventions (whether in
writing, digital, electronic, magnetic or in any other format), which is in the
possession or control of Consultant or any Consultant Affiliate, and/or (ii)
execute (and shall cause any Consultant Affiliate to execute) any and all
applications, assignments or other instruments which the Company shall deem
necessary to apply for and obtain Letters Patent of the United States or any
foreign country or any copyright or trademark registration or to otherwise
protect the Company's interest in the Inventions. The provisions of this
paragraph 5 shall survive any termination or expiration of this Agreement. The
obligations of the Consultant under this paragraph 5 shall continue beyond the
termination of the Consultant's engagement by the Company hereunder with respect
to the Inventions and shall be binding upon the Consultant's successors, assigns
or legal representative.
(b) The Consultant shall own all right, title and interest in and to
"New Technology" (as hereinafter defined). The Consultant shall promptly
disclose to the Company the development of any New Technology (the "Technology
Notice"). For a period of eighteen (18 months from the date of such Technology
Notice (the "Exclusivity Period"), the Company shall have the Right of First
Refusal for a period not to exceed 90 days from the day Consultant advises
Company in writing of the existence of said New Technology to license or
purchase from the Consultant the New Technology covered by the Technology
Notice. The Consultant shall negotiate such license or sale in good faith with
the Company and, during the Exclusivity Period, the Consultant shall not,
directly or indirectly, offer or negotiate with any third party a license for or
sale or other transfer of such New Technology (including, but not limited to,
any change in control of the Consultant). For purposes of this Agreement, "NEW
TECHNOLOGY" shall mean any and all conceptions and ideas for inventions,
improvements and valuable discoveries, whether patentable or not, which are
conceived or made by the Consultant or any Consultant Affiliate solely or
jointly with another and that are (A) developed during the Term at a location
other than at any facility owned, operated or leased by the Company, and without
the use of any equipment or machinery owned, operated or leased by the Company,
and (B) which do not (i) relate to the then current business or activities of
the Company and (ii) involve the use of microwaves with respect to the
resonating frequencies of substances.
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6. CONFIDENTIALITY.
(a) The Consultant acknowledges that the success of the Company is
dependent upon its relationship with its employees and consultants as well as
its business, operational and marketing plans, financial information, ideas,
concepts, processes, business methods, procedures, operations, computer
software, source codes, object codes, user interfaces, specifications,
documentation, trade secrets, technology, cost, pricing and sales information,
lists and files of the Company and its affiliates regarding employees,
consultants, customers, suppliers, vendors and contractors and their
requirements, and any and all other confidential, proprietary, secret or
nonpublic information of the Company and its affiliates (including, but not
limited to, the Technology) (collectively, the "CONFIDENTIAL INFORMATION"), and
that it is imperative that the Confidential Information be maintained in strict
confidence.
(b) Upon request of the Company or upon any termination of this
Agreement, all copies of Confidential Information, whether in writing, digital,
electronic, magnetic or in any other format, which is covered by this Agreement
and which is in the possession or control of Consultant or any Consultant
Affiliate, shall be promptly returned to the Company and the Consultant shall
not retain any copies thereof.
(c) The provisions of this paragraph 6 shall survive any termination of
this Agreement and are subject to the provisions of paragraph 8 of this
Agreement.
7. TERMINATION.
(a) TERMINATION. This Agreement and the Consultant's engagement by the
Company may be terminated in any one of the following ways:
(i) DEATH, OF XXXXX X. XXXXXXX. This Agreement and the
Consultant's engagement shall not terminate immediately upon the death
of its stockholder, Xxxxx X. Xxxxxxx, whether or not he is then the
sole stockholder of the Consultant, but shall survive to the extent
hereinafter noted. Specifically for a period of 7 years after the death
of Xxxxx X. Xxxxxxx, all financial payments shall continue to the heirs
of Xxxxx X. Xxxxxxx as designated in his Will.
(ii) DISSOLUTION OR LIQUIDATION. This Agreement and the
Consultant's engagement shall terminate immediately upon the effective
date of any dissolution or liquidation of the Consultant.
(iii) CAUSE. This Agreement and Consultant's engagement
hereunder shall be terminated for "Cause" at any time during the Term
effective upon the Company's delivery of written notice thereof to
Consultant which notice shall specify the nature of the conduct
constituting such "Cause". Such Cause is specifically defined as a
crime of moral turpitude.
(iv) VOLUNTARILY BY THE CONSULTANT OR THE COMPANY. The Company
or the Consultant may terminate this Agreement and Consultant's
engagement hereunder without Cause upon the mutual consent of the
parties.
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(b) RIGHTS UPON TERMINATION.
(i) If this Agreement is terminated upon the terms previously
noted, pursuant to paragraph 7(a)(i) hereof, all payments and benefits
under this Agreement shall cease upon such date and the Consultant
shall be entitled to receive (1) any earned but unpaid consulting fees
under paragraph 2 hereof through the effective date of such
termination; (2) the post-termination royalty payments set forth in
paragraph 7(c) hereof; and (3) existing medical benefits for a period
of 10 years.
(ii) DISSOLUTION OR LIQUIDATION OF THE CONSULTANT. If this
Agreement is terminated upon the dissolution or liquidation of the
Consultant pursuant to paragraph 7(a)(ii) hereof, all payments and
benefits under this Agreement shall cease upon such date and the
stockholder of the Consultant (or any such stockholder's assigns,
heirs, executor or other personal legal representative) shall be
entitled to receive (1) any earned but unpaid consulting fees under
paragraph 2 hereof through the effective date of such termination; (2)
the post-termination royalty payments set forth in paragraph 7(c)
hereof; and (3) existing medical benefits for a period of 10 years.
(iii) CAUSE. If this Agreement is terminated for Cause
pursuant to paragraph 7(a)(iii) hereof, the Consultant shall be
entitled to receive (1) any earned but unpaid consulting fees through
the effective date of such termination; (2) the post-termination
royalty payments set forth in paragraph 7(c) hereof; (3) existing
medical benefits for a period of 10 years.
(iv) VOLUNTARILY BY THE COMPANY OR THE CONSULTANT. If this
Agreement is terminated voluntarily by the parties pursuant to
paragraph 7(a)(iv) hereof, the Consultant shall be entitled to receive
(1) any earned but unpaid consulting fees through the effective date of
such termination; (2) the post-termination royalty payments set forth
in paragraph 7(c) hereof; (3) existing medical benefits for a period of
10 years.
(c) POST-TERMINATION ROYALTY PAYMENTS. Upon a termination of this
Agreement pursuant to paragraph 7(a)(i), 7(a)(ii), 7(a)(iii) or 7(a)(iv) hereof,
and in satisfaction of all prior royalty payment obligations and in
consideration for the development of the Technology by the Consultant's
stockholder, the Consultant shall be entitled to receive fixed annual royalty
payments at the rates set forth on SCHEDULE D (but in no event less than the
financial sums due under the terms and conditions of the Consulting Agreement
and for the time frames indicated in paragraph 7(a)(i)) hereto until the
expiration of the last patent issued with respect to the patent applications
listed on SCHEDULE A (as such Schedule is updated from time to time pursuant to
Paragraph 1(e) hereof). The provisions of this Paragraph 7(c) supersede and
replace all prior discussions, negotiations, memoranda, correspondence,
understandings and agreements pertaining to the payment of royalties to the
Consultant and any Consultant Affiliate. Such payments shall be made in equal
monthly installments calculated by dividing the annual rate in effect for the
year in which such termination payments begin by 12 (the "MONTHLY RATE").In the
event of a termination of this Agreement pursuant to Paragraph 7(a)(ii), the
Monthly Payment shall be made to the stockholder of the Consultant (or any such
stockholder's assigns, heirs, executor or other personal legal representative).
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(d) GRANT OF SECURITY INTEREST. The Company hereby unconditionally and
irrevocably grants to the Consultant a first priority security interest in and
to and continuing lien upon the Technology for the duration of the
post-termination royalty payments described in subparagraph 7(c) above, and the
Company shall furnish the Consultant with properly executed financing statements
in form; number and substance suitable for filing, sufficient under applicable
law, in order that upon the filing of the same the Consultant shall have a duly
perfected security interest in the Technology. The Consultant and the Consultant
Affiliate agree that each of them will unconditionally subordinate its security
interest to any third party which provides a loan or other form of indebtedness,
any form of institutional financing or other form of preferred or senior equity
investment to the Company, where the lender, investor or funder demands such
subordination.
(e)(i) The Company hereby grants, assigns, transfers, conveys and sets
over to the Consultant the Company's entire right, title and interest in and to
the Technology; provided, that such grant, assignment, transfer, conveyance and
set over shall become effective only at the election of the Consultant following
the occurrence of an Event of Default (as hereinafter defined in Section 7(f) of
this Agreement) that is continuing at the time of such election.
(e)(ii) The Company hereby agrees that after the effectiveness of such
grant, assignment, transfer, conveyance and set over of any of the Technology,
the use by the Consultant of any of such Technology shall be without any
liability for royalties or other related charges from the Consultant to the
Company.
(e)(iii) The Consultant hereby agrees that after the effectiveness of
such grant, assignment, transfer, conveyance and set over of the Technology, the
Company shall not have any further liability to the Consultant under this
Agreement for consulting payments or post-termination royalty payments, it being
understood and agreed that such grant and reversion of the Technology shall be
in full and final settlement and satisfaction of all obligations of the Company
to the Consultant and to the Consultant Affiliates under this Agreement. The
Consultant and its Affiliates shall deliver to the Company such documentation as
the Company may reasonably request, including without limitation a general
release limited to the terms and conditions of the Consulting Agreement, to
confirm that the Consulting Agreement is terminated and of no further force and
effect.
(e)(iv) In furtherance of the foregoing, the Company has executed in
blank and delivered to the Consultant an assignment of the Technology (the
"Technology Assignment") owned by it in the form of Exhibit B hereto, such blank
assignments to be filed and/or otherwise used by the Consultant only upon the
occurrence and during the continuance of an Event of Default. The Company hereby
authorizes the Consultant to complete as assignee, execute, and record with the
United States Patent and Trademark Office (the "Patent and Trademark Office")
and the United States Copyright Office (the "Copyright Office") and with other
applicable state and federal agencies and authorities, each Technology
Assignment upon the occurrence of an Event of Default that is continuing at the
time of filing; provided that the Patent and Trademark Office also receives an
affidavit or certification from the Chief Executive Officer or Chief Financial
Officer (or their respective equivalents) of the Company (who shall not be a
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Consultant Affiliate at the time of furnishing such affidavit or certification)
attesting to the Event of Default and its continuation.
(f) The Company shall be in default under this Agreement upon the
happening of any condition or event set forth below (each, an "Event of
Default"):
(i) the Company's failure to pay any two consecutive
payments as and when due in accordance with the terms of Schedule C or D (as
then in effect) under this Agreement, or the Company's failure to pay as and
when due in accordance with Schedule C or D (as then in effect) under this
Agreement, any total of three (3) payments in any 12 month period in any single
calendar year;
(ii) default by the Company in the performance of any
other obligation, covenant, term or provision contained in this Agreement, and
such default shall continue unremedied for a period of 30 days or more following
written notice of default by the Consultant to the Company;
(iii) default by the Company in the performance of
any obligation, covenant, term or provision contained in the Consulting
Agreement, and such default shall continue unremedied for a period of 30 days or
more following written notice of default by the Consultant to the Company; or
(iv) the Company's dissolution, termination of
existence, insolvency or liquidation; the appointment of a receiver of all or
any part of the property of the Company; an assignment for the benefit of
creditors by the Company; or the commencement of any proceeding under any
bankruptcy or insolvency laws by or against the Company which results in the
entry of an order for relief or which remains undismissed, undischarged or
unbonded for a period of 60 days or more.
8. SPECIFIC PERFORMANCE: INJUNCTIVE RELIEF, REFORMATION OF RESTRICTIONS
(a) The parties recognize, acknowledge and agree that, if the
Consultant or any Consultant Affiliate commits a breach or the Company has
reasonable evidence that Consultant or any Consultant Affiliate is about to
commit a breach, of any of the provisions of paragraphs 3 or 6 hereof, the
Company will suffer irreparable harm and injury, and money damages will not
provide an adequate remedy to the Company. Accordingly, the Consultant agrees
that, in any such event, the Company shall be entitled to have the provisions of
this Agreement specifically enforced by any court having jurisdiction, without
being required to post a bond or other security and without having to prove the
inadequacy of the available remedies at law. In addition, the Company shall be
entitled to avail itself of all such other actions and remedies available to it
under law or in equity and shall be entitled to such damages as it sustains by
reason of such breach.
(b) The parties acknowledge that the type and periods of restriction
imposed on the Consultant pursuant to the provisions of paragraphs 3 and 6
hereof are fair and reasonable, and are reasonably required for the protection
of the Company and its affiliates and the goodwill associated with the business
of the Company and its affiliates. It is the express desire and intent of the
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parties that the provisions of paragraphs 3 and 6 be enforced to the fullest
extent permissible. If any of the covenants in paragraphs 3 and 6, or any part
of such paragraphs, is hereafter construed to be invalid or unenforceable, the
same shall not affect the remainder of the covenant or covenants, which shall be
given full effect, without regard to the invalid portions. If any of the
covenants contained in paragraphs 3 or 6, or any part of such paragraphs, is
held to be unenforceable because of the duration of such provision or the area
covered thereby, the parties hereby expressly agree that the court making such
determination shall have the power to reduce the duration of such provision
and/or areas to which any such provision shall apply, and, in its reduced or
limited form, said provision shall then be enforceable.
9. COMPLETE AGREEMENT. This Agreement supersedes any and all other
agreements, either oral or in writing, and/or prior discussions, negotiations,
memoranda, correspondence, agreements (either oral or in writing) and
understandings between the Company and the Consultant and/or any Consultant
Affiliate with respect to the subject matter of this Agreement. This Agreement
may not be modified except in writing signed by the Company and the Consultant
and no term of this Agreement may be waived except in writing signed by the
party waiving such term.
10. NO WAIVER. No waiver by the parties hereto of any default or breach
of any term, condition or covenant of this Agreement shall be deemed to be a
waiver of any subsequent default or breach of the same or any other term,
condition or covenant contained herein.
11. ASSIGNMENT: BINDING EFFECT. The Consultant understands that it has
been selected for engagement by the Company on the basis of the qualifications,
experience and skills of its personnel. The Consultant, therefore, agrees that
he cannot assign all or any portion of this Agreement. Subject to the preceding
two sentences, this Agreement shall be binding upon and inure to the benefit of
the parties thereto, and their respective successors and assigns.
12. SEVERABILITY. Except as provided in paragraph 8 hereof, the
provisions of this Agreement shall be deemed severable and the invalidity or
unenforceability of any provision shall not affect the validity and
enforceability of the other provisions hereof. If any provision of this
Agreement is unenforceable for any reason whosoever, such provision shall be
appropriately limited and given effect to the extent that it may be enforceable.
13. NOTICE. Whenever any notice is required hereunder, it shall be given in
writing addressed as follows:
To the Company: Global Resource Corporation
Bloomfield Business Park
000 Xxxxxxxxxx Xxxxx, Xxxx 0
Xxxx Xxxxxx, Xxx Xxxxxx 00000
Attn: Chief Financial Officer
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To Consultant: 888 Corporation
000 Xxxxxxx Xxxx
Xxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxx X. Xxxxxxx
With a copy to
Xxxxxxx X. XxXxxxx, Esq.
XxXxxxx, Xxxxxx & XxXxxxx
000 Xxxxx 00 Xxxxx
Xxxx Xxxxxx, Xxx Xxxxxx 00000
Notice shall be deemed delivered (i) five (5) days after the deposit in the U.S.
mail of a writing addressed as above and sent first class mail, certified,
return receipt requested, (ii) upon hand delivery, (iii) one business day after
deposit with Federal Express or other recognized over-night courier service, or
(iv) when actually received. Either party may change the address for notice by
notifying the other party of such change in accordance with this paragraph 13.
14. HEADINGS. The paragraph headings herein are for reference purposes
only and are not intended in any way to describe, interpret, define or limit the
extent or intent of this Agreement or of any part hereof.
15. GOVERNING LAW: ARBITRATION JURISDICTION.
(a) This Agreement shall in all respects be governed, enforced and
construed according to the internal laws of the State of New Jersey without
regard to the principles of the conflict of laws thereof.
(b) Except for equitable relief as specified in paragraphs 8 and 16(f)
hereof, any dispute or controversy, of whatever nature, between the Company and
the Consultant involving (1) any breach of this Agreement or (2) any other
difference or dispute arising out of, related to, under or having any connection
with this Agreement, whether such claims sound in contract, tort, or otherwise,
at law or in equity, under state or federal law, whether provided by statute or
the common law, for damages or any other relief, shall be resolved by binding
arbitration pursuant to the Federal Arbitration Act in accordance with the
Employment Dispute Resolution Rules then in effect with the American Arbitration
Association, The arbitration proceeding shall be conducted in West Berlin, New
Jersey. This agreement to arbitrate shall be enforceable in either federal or
state court.
(c) The enforcement of the parties agreement to arbitrate and all
procedural aspects of the provisions regarding such arbitration, including but
not limited to, the construction and interpretation thereof, the issues subject
to arbitration (i.e., arbitrability), the scope of the arbitrable issues,
allegations of waiver, delay or defenses to arbitrability, and the rules
governing the conduct of the arbitration, shall be governed by and construed
pursuant to the Federal Arbitration Act and shall be decided by the arbitrators.
In deciding the substance of any such claims, the arbitrators shall apply the
substantive laws of the State of New Jersey (excluding New Jersey choice-of-law
principles that might call for the application of some other state's law).
11
(d) The arbitration may be initiated by any party by providing to the
other parties a written notice of arbitration specifying the claims. Within 15
days after the commencement of arbitration, each of the Consultant and the
Company shall select one person to act as arbitrator and the two selected
arbitrators shall select a third arbitrator within ten days of their
appointment. If the arbitrators selected by the parties are unable or fail to
agree upon the third arbitrator within such ten day period, the third arbitrator
shall be selected by the American Arbitration Association promptly after such
ten day period. While the third arbitrator shall be neutral, the two
party-appointed arbitrators are not required to be neutral and it shall not be
grounds for removal of either of the two party-appointed arbitrators or for
vacating the arbitrators' award that either of such arbitrators has past or
present minimal relationships with the party that appointed such arbitrator.
Evident partiality on the part of an arbitrator exists only where the
circumstances are such that a reasonable person would have to conclude there in
fact existed actual bias and a mere appearance or impression of bias will not
constitute evident partiality or otherwise disqualify an arbitrator.
(e) The three arbitrators shall by majority vote resolve all disputes
between the parties. If the parties agree in writing, there shall be no
transcript of the hearing before the arbitrators. The arbitrators' decision
shall be in writing. The arbitrators shall assign the reasons for their
decision. The arbitrators shall certify in their award that they have faithfully
applied the terms and conditions of this paragraph 16. All proceedings conducted
hereunder and the decision of the arbitrators shall be kept confidential by the
parties, e.g., the arbitrators' award shall not be released to the press or
published in any of the various arbitration reporters except to the extent such
disclosure is required by the Company under Federal securities laws. Judgment
upon any award rendered in any such arbitration proceeding may be entered by any
federal or state court having jurisdiction.
(f) Notwithstanding any provision of this Agreement to the contrary,
(i) the provisions of paragraph 8 shall govern any breach or threatened breach
of any provision of paragraphs 3 or 6, and (ii) in the event of a breach or
threatened breach by the Consultant or the Company of any of the covenants
contained in this Contract, the Company and the Consultant shall be entitled to
seek equitable relief, including an injunction, in any court of proper
jurisdiction to maintain the status quo pending the resolution of the dispute by
binding arbitration as provided above. With respect to any such action, the
Consultant and the Company hereby irrevocably submit to the exclusive
jurisdiction of any Federal or State court sitting in the State of New Jersey,
and agree that process in any such action shall be valid and effective for all
purposes if served upon the respective party in accordance with the notice
provisions of paragraph 13 hereof
(h) In any arbitration or equitable proceeding under this Agreement
(including, `without limitation, paragraphs 8 and 16 hereof), the losing party
shall pay all legal fees, arbitration fees and expenses incurred by the
prevailing party in such dispute. Such payments shall be made within five (5)
business days after delivery of the prevailing party's written request for
payment accompanied with reasonably detailed evidence of fees and expenses
incurred by the prevailing party.
16. NO MITIGATION; LIMITED OFFSET. The Company agrees that, if the
Consultant's engagement with the Company is terminated hereunder, the Consultant
is not required to seek other employment or to attempt in any way to reduce any
amounts payable to the Consultant by the Company pursuant to paragraph 7 hereof.
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Further, the amount of any payment or benefit provided for in this Agreement
shall not be reduced by any compensation earned by the Consultant as the result
of employment by another employer or by offset against any amount claimed to be
owed by the Consultant to the Company (unless such amount is evidenced by a
promissory note signed by the Consultant), or otherwise.
17. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and any party hereto may execute any such counterpart, each of
which when executed and delivered shall be deemed to be an original and all of
which counterparts taken together shall constitute but one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement to be effective as of the date first written above.
THE COMPANY: GLOBAL RESOURCE CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Chief Financial Officer
CONSULTANT: 888 Corporation
/s/ Xxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxx
Title [President]
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SCHEDULE A - TECHNOLOGY
[IF ANY TRADE SECRETS ARE ON THE SCHEDULE A, GLOBAL WILL HAVE TO REDACT THE
TRADE SECRET INFO AND FILE A CONFIDENTIAL TREATMENT REQUEST]
1. Notwithstanding anything aforesaid or hereafter in this Schedule,
Consultant specifically excepts out from this agreement and reserves
unto itself all Technology regarding coal and cancer research and
treatment.
2. Following is the list of Technologies developed by the Consultant that
are included in the Contract. All Discoveries and Technologies covering
the following areas:
Tires
Dredge
Oil Shale
Oil Xxxxx
Heavy Oil Residue
Tar Sands
Drilling Fluids
Drill Cuttings
Auto Fluff (ASR)
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SCHEDULE B - STATEMENT OF WORK
Consultant shall:
Using such databases and technical sources as Consultant shall deem useful, do
such research as Consultant shall deem necessary: (i) to identify additional
applications of the technology, (ii) to identify mixtures and compounds capable
of being disassociated by the use of Global's technology and which are
components of other mixtures and compounds to which the Global technology is
directed, (iii) to identify additional sources of recoverable energy to which
the Global technology can be directed, and to determine the probable
maximum-efficient frequencies for the disassociation of such mixtures and
compounds.
Perform such research and analysis to improve, refine, and further develop the
Global technology, both for existing applications and new applications.
Perform such research and analysis to determine the specific frequencies
(resonating frequencies) necessary for expanded and new applications of the
Global technology.
Advise Global as to the continuing education of Global's engineers, scientists
and R&D personnel so as to maintain Global's leadership in the microwave
application field.
Assist Global and its engineers to set-up/install machines embodying the Global
technology, and assist in de-bugging such machines and in making adjustments to
maximize their performance and efficiency.
Interface with, advise and assist both in-house and contracted engineers,
mechanical and machinery designers and designers and manufacturers of Klystrons
and Magnetrons to refine and improve the cost efficiency of the machines
embodying the Global technology by reducing the cost of the input energy and
increasing the quality, volume and value of the recovered energy.
Interface with, advise and assist both in-house and contracted engineers,
mechanical and machinery designers and designers and manufacturers of components
of, sub-components of, and the assembled whole, of the machines embodying the
Global technology to increase the handling speed and volume of the in-put
material and the output material.
Interface with scientists, physicists, chemists, engineers, academics, technical
and scientific researchers, and others involved with microwave technology and
applications to not only keep Global current as to state-of-the-art microwave
(Klystron, Magnetron) design, function and application, but to lead Global to a
position on the cutting edge of such.
Design, configure, specify methodologies and goals of, and generally supervise,
specific research projects, both within the Global laboratories and in such
contract laboratories as Global may employ from time to time.
Cooperate with Global's patent and intellectual property attorneys to write,
file for and defend both the existing patents applied for, but future patents
applied for and all resulting patents, including providing such testimony and
support therefore as may be necessary in the event of litigation, whether for
infringement defense of issuance, or otherwise.
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SCHEDULE C - ANNUAL CONSULTING FEE
CALENDAR YEAR ANNUAL SALARY
------------- -------------
2008 $378,000
2009 $378,000
2010 $448,000
2011 $488,000
2012 $538,000
2013 $588,000
2014 $668,000
ALL YEARS BEYOND 2014 $668,000
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SCHEDULE D - POST-TERMINATION ROYALTY PAYMENTS
YEAR OF TERMINATION ANNUAL ROYALTY RATE
2008 $378,000
2009 $408,000
2010 $448,000
2011 $488,000
2012 $538,000
2013 $588,000
2014 $668,000
ALL YEARS BEYOND 2014 $668,000
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EXHIBIT A
ASSIGNMENT OF PATENTS AND PENDING PATENTS
THIS ASSIGNMENT OF PATENTS AND PENDING PATENTS (this "Agreement") is
made as of _______________________, 2008 by and between Global Resource
Corporation, a Nevada corporation (herein referred to as the "Company") and 888
Corporation (the "Consultant"). All capitalized terms used but not otherwise
defined herein shall have the respective meanings assigned thereto in the
Consulting Agreement dated as of January 1, 2008 by and between the Company and
the Consultant.
W I T N E S S E T H:
WHEREAS, Pursuant to the Consulting Agreement, the Company has agreed
to make certain Payments to the Consultant both during and after the Term of the
Consulting Agreement in the amounts and at the times specified in Schedule A
thereto (the "Payments"} in return for certain specified consulting services the
Consultant will perform for the Company as described on Schedule B to the
Consulting Agreement; and
WHEREAS, in the Consulting Agreement the Company has granted the
Consultant a security interest in the Technology defined below in order to
secure the Payments;
WHEREAS, the Company is the owner of and uses the patents, patent
registrations and pending registration applications set forth on Annex I hereto
(the "Technology" or the "Collateral"); and
WHEREAS, the Consultant desires to acquire the Technology and the
registrations thereof and applications therefore, as applicable, in connection
with the exercise of its remedies after the occurrence of an Event of Default
and pursuant to the terms of the Consulting Agreement including an affidavit or
certification from the Chief Executive Officer or Chief Financial Officer (or
their respective equivalents) of the Company (who shall not be a Consultant
Affiliate at the time of furnishing such affidavit or certification) attesting
to the Event of Default and its continuation.
NOW, THEREFORE, for good and valuable consideration, receipt of which
is hereby acknowledged, the company does hereby assign, sell and transfer unto
the Consultant all right, title and interest in and to the Technology together
with (i) the registrations of and applications therefore, as applicable, (ii)
all reissues, divisions continuations, continuations in part, substitutes,
renewals, and extensions thereof, all improvements thereon, and all other rights
of any kind whatsoever of Grantor accruing thereunder or pertaining thereto,
(iii) the goodwill of the business symbolized by and associated with the
Technology and the registrations thereof, and (iv) the right to xxx and recover
for, and the right to profits or damages due or accrued arising out of or in
connection with, any and all past, present or future infringements or dilution
of or damage or injury to the Technology or the registrations thereof or such
associated goodwill.
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The Company hereby grants to the Consultant, and notice is hereby given
that the Company has granted to the Consultant, a first priority security
interest in the Collateral to secure the payment and performance in full of all
obligations (as defined in the Consulting Agreement) of the Company to the
Consultant thereunder. For the avoidance of doubt the Consultant and all
Consultant Affiliates have agreed that it will unconditionally subordinate its
security interest and its rights under this Assignment to any third party which
provides a loan or other form of indebtedness, any form of institutional
financing or other form of preferred or senior equity investment to the Company,
where the lender, investor or funder demands such subordination.
This Agreement is intended to and shall take effect as a sealed
instrument at such time as the Companv and the Consultant shall complete this
instrument by signing their respective acceptance of the Consulting Agreement:
provided, however, that the Consultant shall not be permitted to record same in
the United States Patent and Trademark Office or with any other governmental or
regulatory authority unless accompanied by an affidavit or certification from
the Chief Executive Officer or Chief Financial Officer (or their respective
equivalents) of the Company (who shall not be a Consultant Affiliate at the time
of furnishing such affidavit or certification) attesting to the Event of Default
and its continuation.
IN WITNESS WHEREOF, the parties have duly executed this Assignment of
Patents on the day and year first written above.
GLOBAL RESOURCE CORPORATION AS GRANTOR:
By: _________________________________
Name: _______________________________
Title: _______________________________
The foregoing Assignment of the Patents and the registration thereof and
registration applications therefore by the Grantor is hereby accepted as of the
__________ day of ____________, 200___.
By: _________________________________
Name: _______________________________
Title: _______________________________
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