EXHIBIT 6.26
LICENSE AGREEMENT
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This License Agreement made and entered into as of June 11, 2001 by and
between Nurescell, Inc., a Nevada corporation, ("Nurescell") and Advanced
Technology Industries, Inc., a Delaware corporation, ("ATI") provides as
follows:
RECITALS
A. Nurescell has developed a novel material for shielding and
internment of radioactive materials and radioactive waste as well as providing
attenuation of X-ray energy. The material demonstrates shielding and physical
properties superior to commonly used shielding materials such as concrete,
steel, or, in some cases, lead. The material may be compounded in such a way as
to be used either in solid form or as a viscous liquid for specialized
applications. The compound may include such materials as polyester epoxy,
powdered metals, a coloring agent and polystyrenes in various combinations and
ratios. Said invention is more particularly described in United States Patent
Application No. 09/187641. Said invention is hereinafter referred to as the
"Technology."
B. ATI desires to acquire an exclusive license of the Technology in the
Territory and upon the terms and conditions set forth herein, and Nurescell
desires to grant an exclusive license of the Technology to ATI in said Territory
and upon said terms and conditions.
NOW THEREFORE, in consideration for the mutual covenants and agreements
contained herein and for other good and valuable consideration the receipt of
which is hereby acknowledged the parties hereto agree as follows:
1. Grant of License.
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Nurescell hereby grants ATI the sole, exclusive, transferable, right
and license to market, distribute, sublicense, sell, transfer and otherwise
commercially exploit the Technology and products utilizing the Technology in the
geographical areas specified below (the "Territory") upon the terms and
conditions set forth herein. The License and rights granted to ATI pursuant
hereto, shall be conditioned upon ATI and its sub licensees, if any, thereafter
during the term of the License satisfying its obligations to Nurescell
hereunder, including without limitation, the payment of royalties and other
payments to Nurescell.
Notwithstanding anything to the contrary contained in this Agreement
ATI shall have the right to utilize technologies and products in its business
which are similar to or related to the Technology and shall have the right to
grant its sub-licensees similar rights.
2. Term of License.
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The term of this License shall be the longer of: (i) 25 years, or (ii)
the term of any patent which Nurescell now owns or may be granted in the future
on the Technology, or any modification or derivative thereof, in the United
States or any of the countries within the Territory. In the event that any court
of competent jurisdiction determines that the provision of this paragraph
violate any rule against perpetuities in said jurisdiction the term of the
License shall be automatically amended without any action of the parties to the
longest term allowable under the laws of said jurisdiction.
3. Territory
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The Territory of the License shall be the geographical area consisting
of the European Union, the British Isles, the Russian Federation, Ubekistan,
Krygikistan, Afganistan, Pakistan, Kazakstan, Iran, Turkey, Ukraine, The Baltic
Republics, Georgia, Poland, Hungary, Czech, Slovakia, Slovenia, Egypt, South
Africa, Israel, Algeria, Libya, the UAE, Iraq, Lebanon, Saudi Arabia, and
Kuwait.
4. Royalties
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ATI shall pay Nurescell a royalty for the utilization of the Technology
in the amount of eight per cent (8%) of the Net Sales of the Technology by ATI.
Net Sales is hereby defined as gross sales less, discounts, rebates, credits,
returns, and freight. In the event that the Technology is incorporated in a
product the royalty shall be computed on the entire price of the product as well
as the coating or application of the product on another substance or substances.
In the case of sub-licenses the royalty shall be computed on the gross amount
received by ATI from the sub- licensee. In the event that any contract or
agreement provides for services or products in addition to the Technology or
products incorporating the Technology the royalty shall be computed only upon
that portion of the contract price attributable to the Technology or any product
incorporating the Technology and the application or coating thereof on another
substance of substances. In the event of any disagreement as to the manner in
which the royalty is determined pursuant to this paragraph the parties shall
select a mutually agreeable certified public accountant licensed to practice in
the State of California who shall determine the amount of the royalty in
accordance with the provisions of this paragraph and said determination shall be
binding upon the parties. The cost of said accountant shall be borne equally by
the parties.
5. Reporting
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5.1. ATI shall remit the royalty to Nurescell for each calendar month
no later than the tenth (10th) day of the following calendar month together with
a report specifying the name and address of the customer purchasing the
Technology or any product in which it is incorporated, the Net Sales amount, and
the amount of the royalty. In the event the Technology or any product in which
it is incorporated is included in any agreement or contract which provides for
the furnishing of other services or products the allocation of the Net Sales
amount attributable to the Technology shall be set forth in reasonable detail
together with the method of allocation of the total contract price. In the case
of sub-licensees the sub-license agreement shall be provided to Nurescell upon
execution and the amount of sub-royalties received from the sub-licensees shall
be set forth in each monthly report.
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5.2 Nurescell shall have the right upon reasonable notice to ATI to
inspect all books and records of ATI relevant to the determination of the
royalty hereunder provided, however, that said inspection shall not be conducted
more than once in any twelve (12) month period. In the event that said
inspection reveals that ATI has underpaid the royalty ATI shall remit to
Nurescell the additional royalty due to Nurescell. In the event that any under
payment is more than five (5%) percent of the total royalties paid by ATI within
the prior twelve (12) month period, ATI shall pay all costs and expenses of
Nurescell in conducting said investigation including but not limited to the fees
of independent auditors or accountants retained by Nurescell to conduct such
investigation. In addition, interest at the rate of ten (10) per cent per annum
shall be paid by ATI to Nurescell on all underpayments from the date that said
payments were due to the date said underpayment is paid by ATI.
6. License to Use Trademarks and Trade names.
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ATI shall use, and is hereby granted, an non-transferable,
non-exclusive license to any trade name, trade xxxx, logo, or other
identification of the Technology or products manufactured using the Technology
which are owned by Nurescell at any time during this Agreement. This shall
include only trademarks relating to licensed Technology granted under this
Agreement. The license and rights granted to ATI pursuant hereto, shall be
conditioned upon ATI and its sublicensees, if any, thereafter during the term of
the License satisfying its obligations to Nurescell hereunder, including without
limitation, the payment of royalties and other payments to Nurescell. ATI shall
use its best efforts to ensure that all trademark rights shall be maintained in
the name of and for the benefit of Nurescell and shall notify Nurescell in
writing in a timely manner of any acts of actual or potential infringement. ATI
agrees not to register any Nurescell trademarks or trade names without
Nurescell's express written consent. Upon Nurescell's request ATI shall provide
Nurescell with copies of materials and products bearing Nurescell's trademarks
and trade names so that Nurescell can verify that the quality of ATI's use of
such trademarks contained in such materials and products is comparable to that
of Nurescell's use thereof. ATI agrees to suspend use of Nurescell's trademarks
and trade names if such quality is reasonably deemed substantially inferior by
Nurescell until ATI has taken such steps as Nurescell may reasonably require to
solve the qualify deficiencies.
7. Modifications and Enhancements
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Nurescell shall promptly notify ATI of any enhancements, modifications,
improvements, or alterations to the licensed Technology and ATI shall have the
right to utilize said enhancements, modifications, improvements, or alterations
during the term of this Agreement for no additional consideration.
8. Covenants, Warranties, and Representations of Nurescell
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Nurescell hereby makes the following warranties and representations to
ATI and its successors and assigns which warranties and representation will be
effective as of the date of this Agreement and the date of the exercise of the
License Option by ATI without any further writing or action on the part of
Nurescell:
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8.1. Nurescell is the owner of all the intellectual and proprietary
rights of the Technology and no other person or entity has any claim to any
proprietary or intellectual property right or interest therein and that
Nurescell has the authority to grant this license to ATI without the consent of
any other person or entity. Nurescell shall defend of behalf of ATI at
Nurescell's expense, and shall hold ATI harmless in any action at law of suit in
equity that may be brought against ATI at any time for infringement of any
processes, know-how, technology, patents, patent rights, licenses, inventions
and other intellectual property rights and improvements or enhancements relating
to the Technology.
8.2. Nurescell has not granted any previous licenses of the Technology
in the Territory to any other person or entity and the granting of this license
will not violate any other license agreement, indenture, security agreement,
loan agreement, or any other agreement to which Nurescell is a party or any
obligation of Nurescell.
8.3. Nurescell has not received any notice from any third party
claiming an interest in the Technology or in any of the proprietary or
intellectual property rights associated therewith, which would violate this
Agreement or any other agreement hereto.
8.4. Exhibit "A" hereto is a list of all of the patents granted or
applied for relating to the Technology by Nurescell in the United States or any
country listed in Paragraph 2 hereto. Included are those patents relating to the
licensed Technology granted under this Agreement or any other agreement hereto.
8.5. The Technology has been fully developed and tested and performs
the tasks and has the properties set forth in Recital A of this Agreement.
9. Covenants, Warranties, and Representations of ATI
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ATI hereby covenants, warrants, and represents that:
9.1 ATI is familiar with the quality standards that NURESCELL utilizes
in connection with its use and licensing of the Technology and ATI shall utilize
the same standards of quality in respect of all products manufactured and sold
by ATI.
9.2. ATI has the skill and expertise to implement the quality control
of its products and services in connection with the manufacture and sale of the
Technology and products utilizing the Technology.
9.3. Nurescell shall have the right to inspect any products for the
purposes of facilitating Nurescell control over the standard of quality and
service utilized in the application of the Technology and the production of
products utilizing the Technology ATI shall cooperate with Nurescell in
connection with the forgoing;
9.4. Nurescell shall have the right to make reasonable inspection of
ATI operations, and ATI shall supply to Nurescell with specimens of any products
utilizing the Technology upon request;
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9.5 ATI shall comply with all applicable laws and regulations and
obtain all appropriate governmental approvals in the Territory pertaining to the
manufacture, sale, and distribution of the Technology and products incorporating
the Technology
10. Support Obligations of NURESCELL
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NURESCELL shall provide ATI with all necessary formulas, processes,
equations, properties, designs, test results, prototypes, samples, software,
hardware, computer programs and all other information in the possession of
NURESCELL to enable ATI to utilize the Technology and to manufacture and market
products encompassing the Technology
11. Relationship of Parties.
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ATI and NURESCELL are independent contractors and no relationship of
joint venture, partnership, or agency exists between them. Neither party shall
have any right to hold itself out as having any right or authority to act or
create any obligation or responsibility (whether express or implied) on behalf
or in the name of the other party.
12. Confidentiality.
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Each of the parties acknowledges that any technical, financial or other
information received by either of them which is not in the form of advertising,
sales, or technical literature which is generally distributed to the public is
confidential proprietary information and each of the parties covenants not to
disclose any of said information to any third party or entity, either during the
term of this Agreement or after the expiration thereof, without the express
written consent of the other. Each party hereto at all times shall protect the
confidentiality of said proprietary information and shall maintain the same in a
secure locked place within the facilities with access thereto limited only to
those persons who have the need to know said information. Each party hereto
agrees that each employee, officer, supplier, distributor, customer, sales
agent, or any other party who has any need to know any of said information shall
execute an agreement in a form acceptable to each party hereto acknowledging
that the same is proprietary information of said party and agreeing not to
disclose the same to any person or entity without the consent of said party.
Upon the termination of this Agreement, all copies of said proprietary
information shall be returned to the party owning said information and the other
party covenants and warrants not to utilize any of said information subsequent
to the termination of this Agreement.
13. Indemnification
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13.01. Each of the parties hereto (the "Indemnifying Party") hereby
agrees to indemnify the other party and its successors and assigns and the
officers, directors, affiliates, employees, controlling persons, and agents (the
"Indemnitee") and to hold the Indemnitee harmless against and in respect of any
losses, damages, taxes, penalties or other additions to taxes, claims, actions
or causes of action, costs and expenses, including attorneys' and accountants'
fees, specifically excluding lost profit and consequential damages, collectively
referred to hereinafter as "Losses", incurred by any Indemnitee by reason of (a)
a breach of any representations or warranties made by the Indemnifying Party in
this Agreement, or (b) nonperformance (whether partial or total) of any
covenants or agreements made by the Indemnifying Party in this Agreement or any
agreement entered into pursuant hereto, which nonperformance is not due to
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nonperformance or breach of this Agreement or any other agreement hereto entered
into by Indemnitee.
13.02 Without limiting the generality of the foregoing, in the event of
any claim for indemnification hereunder resulting in the commencement of legal
proceedings by a third party, the Indemnitee shall give notice to the
Indemnifying Party no later than ten (10) days prior to the time any response to
the asserted claim is required, if possible. In the event of any such claim for
indemnification resulting from or in connection with any third-party claim or
legal proceeding, the Indemnifying Party may assume the defense thereof;
provided, however, that no settlement may be made without the prior written
consent of the Indemnitee. If the Indemnifying Party assumes the defense of any
such claim or legal proceeding, the Indemnifying Party shall be entitled to
select counsel and take all steps necessary in the settlement or defense
thereof, provided, however, that the Indemnitee may, at its own expense,
participate in any such proceeding with counsel of its choice. The Indemnitee
may not compromise or settle such claim or proceeding without the prior written
consent of the Indemnifying Party unless (a) the Indemnifying Party is not
defending in good faith such claim or proceeding, (b) the continued defense of
such claim or proceedings is materially prejudicial to the Indemnitee, or (c)
the Indemnitee believes in good faith that the Indemnifying Party will be unable
to pay the amount of such settlement. If the Indemnifying Party does not assume
the defense of any such claim or litigation in such manner as it may deem
appropriate, including, but not limited to, settling such claim or litigation
(after giving notice of the same to the Indemnifying Party), the Indemnifying
Party will promptly indemnify the Indemnitee in accordance with the provisions
of this Paragraph, provided, however, that in the event the Indemnitee intends
to settle a claim or litigation without the Indemnifying Party's consent, the
Indemnitee shall notify the Indemnifying Party of such intent in writing. Within
five (5) business days of receipt of such notice, the Indemnifying Party shall
deliver to the Indemnitee its written objection, if any, to the amount of such
settlement specifying the amount to which it objects. The Indemnifying Party
shall only be liable for that portion of the loss resulting from any settlement
that the Indemnifying Party does not reasonably dispute in good faith in its
written objection.
14. Termination of Agreement.
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14.1. Notwithstanding anything to the contrary contained herein this
Agreement may be terminated immediately by either party upon written notice if
the other party (i) is adjudicated a bankrupt, (ii) becomes insolvent or there
is a receiver appointed in reference to its properties or assets, (iii) makes an
assignment for the benefits of creditors or (iv) dissolves or otherwise ceases
to exist by operation of law.
14.2. If either party to this Agreement defaults or materially breaches
the terms of this agreement other than by reason of force majeure, the other
party shall have the right to cancel this agreement by giving thirty (30) days
written notice to the other party of cancellation which notice shall specify the
manner in which the other party has defaulted and materially breached the
agreement. The breaching party shall have thirty (30) days after the receipt of
said notice to cure said breach and if said party cures the default within
thirty (30) days or has taken material steps to cure said breach within said
period of time and said breach may be fully cured within a reasonable time after
the expiration of said thirty (30) day period then this agreement shall not be
canceled but shall remain in full force and affect.
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14.3. In the event that this Agreement is terminated for any reason,
the termination shall not effect any obligation created under this agreement
prior to its termination, including, but limited to, the obligation of ATI to
pay the royalties hereunder. In the event of termination for any reason, ATI
shall have the right to complete any contract that it has with any customer for
the sale or license of the Technology or any products incorporating the
Technology or to sell any products that it has in inventory or has ordered from
suppliers or manufacturers provided that it pays to NURESCELL the royalties
therefor.
14.4. Except as provided in Paragraph 14.3 in the event of termination
of this Agreement for any reason ATI shall immediately cease manufacturing,
marketing, or selling any of the Products and the license granted hereunder
shall immediately terminate.
14.5. In the event that this Agreement is terminated for any reason or
expires by its terms Paragraphs 8,9,10,11,12 and 13 shall remain in full force
and effect.
15. MISCELLANEOUS.
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15.1. All notices, requests, demands to have been other communication
required or given under this agreement shall be in writing and personally
delivered or sent by facsimile transmission or shall be mailed to the party to
whom notice is to be given by first class mail, registered or certified, return
receipt requested, postage prepaid, and properly addressed (in which case such
notice shall be deemed and duly given on the third day following such mailing
to:
To: Advanced Technology Industries, Inc. Advanced Technology Industries,
Inc.
Xxxxxxxxxxxxx 00
Xxxxxx, Xxxxxxx D-10117
Facsimile No.: 011 49 302 017 7899
To: Nurescell, Inc. Nurescell, Inc.
00000 XxxXxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Any party by given written notice to the other in the manner provided
above may change such party's address for purposes of this paragraph.
15.2. The failure of either party to enforce at anytime, or for any
period of time, any of the provisions of this Agreement, and/or the failure of
either party to pursue the remedies for the breach of any conditions,
provisions, or undertaking herein, shall not operate as a waiver a such
conditions, provisions, or undertaking, or as of waiver of the right of the
party thereafter to enforce each and every such condition, provisions, or
undertaking.
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15.3. If any provisions, clause or sub-parts of this Agreement are held
invalid or unenforceable such invalid portions of the agreement shall be
considered void but shall not effect the validity of the remaining provisions of
this agreement.
15.4. In the event of any dispute between the parties concerning this
agreement the parties agree that the proper venue shall be a court of competent
jurisdiction in the Republic of Germany and the parties consent to jurisdiction
of the courts of said country.
15.5. This agreement shall be binding upon the parties and upon their
successors and assigns, and legal representatives. Except as specifically
provided to the contrary herein, neither party may assign all or any portion of
their duties rights or obligations under this agreement, whether voluntarily or
involuntarily, or by operation of law with the prior written consent of the
other party. Any attempt to assign or transfer any of said duties, rights, or
obligations without such consent shall be voided ab initio at the election of
the other party, and shall at the option of the other party, serve to terminate
this agreement immediately. Notwithstanding the provisions of this agreement
either party may assign or transfer this agreement to a third party incident to
the sale of substantially all of the assets or stock of the assigning party or
pursuant to a merger, consolidation or other reorganization with a third party.
15.6. The signatories to this agreement hereby warrant and represent
that each of them is duly authorized to execute and enter into this agreement on
behalf of the respective parties.
15.7. This agreement constitutes the full and complete agreement and
understanding between the parties hereto and shall supersede any and all prior
and oral written agreements concerning the subject matter contained herein. This
agreement may be modified or amended only by a written instrument executed by
all of the parties hereto.
15.8. In the event of any arbitration or the filing of any action at
law or in equity between the parties hereto to enforce any of the provisions
hereof the unsuccessful party to such litigation or arbitration shall pay to the
successful party all costs and expenses including actual attorneys fees,
incurred therein by such successful party; and if such successful party shall
recover judgment in any such action or proceeding, such costs, expenses and
attorneys fees may be included in and as part of such judgment.
15.9. The titles or heading of the various Paragraphs hereof are
intended solely for convenience of reference and are not intended and shall not
be deemed to modify, explain or place any construction upon any of the
provisions of this agreement. 15.10. The governing law concerning all matters
arising under the Agreement shall by the substantive law, but not the law of
conflicts, of the Republic of Germany.
15.11. This Agreement may be executed in one or more counterparts and
by facsimile signature, all which shall be considered one and the same agreement
and shall become effective when one or more counterparts have been signed by
each party delivered to the other party, it being understood that all parties
need not sign the same counterpart.
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IN WITNESS THEREOF, the parties have executed this agreement as of the day and
year first above written.
"ATI" Advanced Technologies, Inc.
By_____________________
"NURESCELL" NURESCELL Technologies, Inc.
By______________________
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