EXHIBIT 10.15
AMENDMENT
This Amendment dated this 1st day of April, 2004 by and among XXXXXX
INTERNATIONAL, LTD., having a business address at Highway 34 and Xxxxxxxxx Xxxx,
Xxxx Xxxxxxxx, Xxx Xxxxxx 00000-0000, and XXXXXX XXXXXX, having an address at
Highway 34 and Ridgewood Road, Wall Township, New Jersey 07719-9738 (the above
identified parties are collectively referred to as the "Licensor") and XXXXXX,
ENGLAND AND ASSOCIATES, LLC, having its principal offices located at Xxx Xxxxxxx
Xxxxxx, Xxxxx 0000, Xxxxxx Xxxx, Xxxxxxxx 00000 (the "Licensee").
WHEREAS, Licensor and Licensee entered into a License Agreement
originally on April 12, 2002 and have operated pursuant to their agreement
through the date of this Amendment ("License Agreement");
WHEREAS, Licensor has retrofitted the No.1 Diesel 855 engine
incorporating the Xxxxxx CSRV System, which engine is operational on a test
stand. This engine is not ready for final testing and many costly modifications
are to be carried out before it is ready for final testing.
WHEREAS, Licensee has requested Licensor to retrofit another 855 No. 2
engine to gasoline incorporating the CSRV by doing so has placed an extra
expense and burden on Licensor. Currently, it is not financially feasible for
Licensor to complete both engines concurrently without considerable additional
funding and staff.
WHEREAS, in the interest of time and efficiency Licensor and Licensee
have agreed to allow Licensee at its own expense to undertake various
modifications and refinements to the No. 1 855 Diesel powered CSRV truck engine;
WHEREAS, in order to accomplish the aforesaid mutual objective of
Licensor and Licensee, it is necessary to supplement the License Agreement
solely as specified in, and limited by, this Amendment. The permission granted
by Licensor pursuant to this Amendment is not intend to, and does not constitute
a novation of the License Agreement.
NOW, THEREFORE, in consideration of the premises and covenants, and
other good and valuable consideration, and the mutual promises of the
performance of the undertaking set forth in the License Agreement and in this
Amendment, it is agreed, by and among Licensor and Licensee, as follows:
1. DEFINED TERMS. Except as specifically defined herein, all
definitions of terms used herein shall be in accordance with the
License Agreement.
2. POSSESSION. For the limited purpose set forth in paragraph 6
below, Licensor shall permit Licensee to take possession of, but
not title to, and to remove from Licensor's business premises, a
single diesel powered internal combustion engine that Licensor has
See notes to the financial statements. 33
retro-fitted with the CSRV Valve System ("No. 1 Test Engine")
together with one of the two trucks containing an 855 Cummins
Engine owned by Licensee ("Test Truck"). Unless or until otherwise
specified in the License Agreement, Licensor shall retain title to
the Test Engine, with exception of the trucks which are the
property of Licensee. The parties agree that the Test Engine is
currently in a state of development, which Licensee will attempt
to refine. The Test Engine is not ready for testing and
certification, and does not constitute a delivery of such an
engine as contemplated by the Confidential Addendum to the License
Agreement.
3. TEST MATERIAL. Licensor shall provide Licensee with, but not title
to, the Test Engine on test stand, all related drawings or other
intellectual property, that Licensor feels would aid Licensee in
its refinement efforts (collectively the "Test Material"). If
Licensee requires any parts from Licensor, Licensee must pay for
parts made by Licensor.
4. SHIPPING. Licensee shall be responsible for packing, crating,
shipping and transporting the Test Material and all costs
associated therewith. Licensee shall be responsible for all damage
from whatever cause or source caused to the Test Material, while
the Test Material is off of Licensor's business premises. Within
five (5) days of taking possession of the Test Material Licensee
shall deliver the Test Material to Ram Industries 0000 Xxxxxxxx
Xx., Xxxxx Xxxxxx Xxxx, 00000 ("Ram Premises").
5. INSURANCE. Licensee shall insure the Test Material against all
damage and loss for its full replacement value which is currently
estimated to be $250,000 with Licensor named as the sole loss
payee; Licensor calculates it has expended approximately
$2,500,000.00 on Licensee's Diesel 855 engine. Moreover, Licensee
shall provide Licensor with an insurance policy providing general
comprehensive liability coverage for Licensor in relation to the
Test Material that meets the specifications of the License
Agreement. The insurance policy(ies) shall be delivered by
Licensee to Licensor before the Test Material is removed from
Licensor's business premises. Each insurance policy shall be
issued by an insurance company that is reasonably acceptable to
Licensor and which is authorized to do business both in the State
of New Jersey and in the State of Arkansas.
6. PURPOSE. Licensor grants its permission for Licensee at its own
expense to use third party firms in its refinement efforts, which
will be required to protect the confidentiality of Licensor's
patents and trade secrets; each such consultant shall be required
to sign a confidentiality agreement. The required confidentiality
agreement is attached hereto as Exhibit A ("Confidentiality
Agreement"). Licensee shall be responsible to enforce the
Confidentiality Agreement and shall indemnify the Licensor against
any loss associated with a breach of the Confidentiality Agreement
caused by, or related to, an act or omission of Licensee. Licensor
will be the owner of all work and improvements made by Licensee
and its third party contractors. Licensee's efforts are intended
to supplement those of Licensor and to accelerate the time when
the Test Engine can be tested at Southwest Research Institute for
EPA certification purposes. Licensor, however, without having any
obligation to do so, may, in its sole and absolute discretion,
continue to work on the No. 2 gasoline engine project to
completion.
7. Payment. All payments due Licensor by Licensee shall become due,
and will be paid, in accordance with the License Agreement, except
that if Licensee through its efforts produces an engine that
See notes to the financial statements. 34
satisfies the criteria specified in the License then the
precondition to Licensee's payment obligation shall have been
satisfied as if the Licensor had produced an engine that satisfied
the criteria specified in the License and payment shall be due
from the Licensee pursuant to the terms of the License Agreement.
8. REPORTS. Licensee shall provide Licensor with a written progress
report every fifteen (15) days detailing the progress that is
being made on the Test Engine.
9. LOCATION. Licensee shall not remove the Test Material from the Ram
Premises without the prior written approval of the Licensor.
Licensor and its agents, employees, contractors and consultants,
on two (2) business days notice, shall have the absolute right,
but not the obligation, to enter the Ram Premises, during normal
business hours, to inspect the Test Engine and/or the Test Truck
and all related data, plans, results, reports and documents
relating to the Test Engine and/or the Test Truck.
Licensee represents to Licensor that the Ram Premises are safe and
secure and that access to the Test Material will be limited to the
Licensee and its consultant which access shall be governed by the
terms of the Confidentiality Agreement.
10. INDEMNIFICATION. Indemnification between the parties will be in
accordance with the License Agreement and paragraphs 4, 6 and 9
hereof.
11. CONFIDENTIALITY. The confidentiality of Licensor's patents and
trade secretes shall be maintained in accordance with the License
Agreement and paragraphs 6 and 9 hereof.
12. BREACH; REMEDIES. In the event of a breach by either party of this
Amendment the remedies of the parties shall be governed in
accordance with the License Agreement.
13. NOTICES. All notices between the parties shall be made in
accordance with License Agreement.
14. APPLICABLE LAW. The law applicable to this Amendment Agreement
shall be in accordance with License Agreement.
15. SEVERABILITY. If any term, covenant, condition or provision of
this Amendment, or the application thereof to any person or
circumstance, shall, at any time or to any extent, be invalid or
unenforceable, the remainder of this Amendment, or the application
of such term or provision to persons or circumstances other than
those as to which it is held invalid or unenforceable, shall not
be affected thereby, and each term, covenant, condition and
provision of this Amendment shall be valid and be enforced to the
fullest extent permitted by law.
16. INTERPRETATION. Wherever herein the singular number is used, the
same shall include the plural, and the masculine gender shall
include the feminine and neuter genders, and vice versa, as the
context shall require.
17. COUNTERPARTS. This Amendment may be executed in several
counterparts, each of which shall be an original, but all of which
shall constitute one and the same instrument.
18. SECTION HEADINGS. The section headings in this Amendment are
inserted only as a matter of convenience in reference and are not
to be given any effect whatsoever in construing any provision of
this Amendment.
See notes to the financial statements. 35
19. ASSIGNMENT. Neither this Amendment nor the License Agreement may
be assigned by Licensee except as permitted by the License
Agreement. .
ATTEST: XXXXXX INTERNATIONAL, LTD.
/s/ Xxxxxxx Xxxxxx BY: /s/ Xxxxxx X. Xxxxxx
----------------------------------------- ------------------------------
Xxxxxxx Xxxxxx Xxxxxx X. Xxxxxx, President
Notary Public - New Jersey
My Commission Expires Dec. 27, 2005
as to Both Signatures of
Xxxxxx X. Xxxxxx
/s/ Xxxxxxx Xxxxxx /s/ Xxxxxx X. Xxxxxx
----------------------------------------- ------------------------------
Xxxxxxx Xxxxxx Xxxxxx X. Xxxxxx, Individually
ATTEST: XxXXXX, ENGLAND & ASSOCIATES, LLC
(Illegible) By: /s/ Xxxx Xxxxxxx
----------------------------------------- ------------------------------
Xxxx Xxxxxxx
See notes to the financial statements. 36
