Exhibit 10.21
LICENSE AGREEMENT
THIS LICENSE AGREEMENT (the "License Agreement" or this "Agreement"), dated
as of the Effective Date (as hereinafter defined), by and between Titan
Technologies Incorporated, having its principal place of business at 3206
Xxxxxxxxxx N.E., Albuquerque, New Mexico ("Titan" or "Licensor"), and Xxxxxxx
Xxxxxx, Xxx Xxxxx, and Xxxxxxx Xxxxxxxxx (collectively "Principals" or
"Licensee"), with principal executive offices at 000 Xxxx 0xx Xxxxxx, Xxxxx
0000, Xxxx Xxxxx, Xxxxx 00000.
RECITALS
A. Titan is the owner of all right, title and interest in the
intellectual property described more completely below (the
"Technology");
B. Licensee is desirous of acquiring the right to use the Technology in
construction and operation of facilities within the Territory (as
defined below), including sale of facilities constructed by Licensee;
C. This License Agreement provides for construction of one or more
commercial Plants (the "Plants") to be owned by Licensee or an
Operating Entity (as hereinafter defined), which will develop,
construct, own, maintain and operate a series of Projects (as
hereinafter defined) within the Territory using the Technology to
recycle and convert tires and other rubber products into reusable
products.
D. Titan is willing to grant to Licensee an exclusive license within the
Territory to use the Technology in connection with the manufacture,
sale and operation of the Projects using the Technology to recycle and
convert tires and other rubber products into reusable products, all on
the terms and subject to the conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises, the mutual promises
set forth below and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Titan and Licensee hereby agree as
follows: 1. Definitions. The following definitions shall be applicable
throughout this Agreement:
1.1 The term "Affiliate" of any person or entity shall mean and include
any person, corporation or other entity controlling, controlled by or
under common control with, such person or entity.
1.2 "Calendar Quarter" or "Quarterly" means each three-month period, or
any portion thereof, beginning on January 1, April 1, July 1, and
October 1.
1.3 "Construction Commencement" shall have occurred with respect to a
Project at such time as the contractor under the construction contract
for such Project receives the Notice to Proceed as defined in the
construction documents for the Project and Licensee has delivered a
written certification to Licensor that Licensee has arranged for
financing which Licensee in good faith reasonably believes to be
sufficient to complete the Project.
1.4 "Field of Use" shall mean use of the Invention or Technology or Patent
Rights for recycle of tires and other rubber products of whatsoever
origin into reusable products.
1.5 "First Project" shall mean the first Project commenced by the
Licensee. Each succeeding Project commenced thereafter shall be
similarly referred to in chronological order.
1.6 "Gross Sales" shall mean the cash amount actually collected on sales
of Licensed Products, including but not limited to carbon black,
whether activated or not, oil, gas, liquid hydrocarbons, and all other
hydrocarbon products, steel, power, and energy. If Licensed Products
are sold in transactions which are not bona fide arm's-length
transactions (including transactions between entities which are
affiliated or have related interests), Gross Sales shall be determined
by the most recent commercial sale to an independent party.
1.7 "Invention" or "Inventions" means the Titan process and processes for
recycle of tires, together with equipment, reagents and proprietary
knowledge utilized to employ the Technology and the products and
processes related to or included therein.
1.8 "Licensed Marks" means all service marks and trademarks (but not
tradenames) of Licensor relating to the Invention, Licensed Processes
or Licensed Products, including any and all service marks and
trademarks which may be established from and after the date of this
License Agreement.
1.9 "Licensed Processes" shall mean the processes claimed in or utilizing
Patent Rights or some portion thereof, together with all proprietary
knowledge related to use of the Invention or Inventions and any
licenses or sublicenses which Licensor has acquired or develops the
right to use in connection with the Technology.
1.10 "Licensed Products" shall mean products which are:
(a) made in accordance with or by means of Licensed Processes; or
(b) made utilizing any substance, device, apparatus, method, or
process which embodies or uses the Technology or Invention,
including improvements.
1.11 "Patent Rights" shall mean United States Patent Numbers 5,714,043 and
5,871,619 issued by the U.S. Patent and Trademark Office on February
3, 1998 and February 16, 1999, respectively, and applications which
may be filed in the United States and all foreign countries, and any
provisional, divisional, continuation, continuation-in-part, and
substitute applications thereof, and any patents issuing thereon and
reissues, reexaminations, and extensions thereof, which relate to the
Invention or Technology.
1.12 "Project" shall mean one production train capable of handling up to
150 tons per day of tires and other rubber products.
1.13 The term "Technology" shall mean any and all information, patent
applications, know-how, show-how, substances, recipes, formulas,
compositions, devices, apparatuses, techniques, notes, books, writings
or other documents, samples, prototypes, models, trade secrets,
methods, practices, procedures, processes, process parameters,
research and development information, software, algorithms, flow
charts, data flow diagrams, state transition diagrams, contact
diagrams, technical plans and designs, data, blueprints, inventions,
customer and supplier lists, price lists, marketing plans, and other
business and financial information, including improvements, changes,
developments, and modifications thereto, which relate to the Invention
or Inventions. Without limitation, the term "Technology" includes the
inventions described in and covered by U.S. Patents Nos. 5,714,043 and
5,871,619.
1.14 The term "Territory" shall be defined under this License Agreement as
follows: the entire geographical area comprising North America,
Central America and South America.
2. Grant of License: Term.
2.1 Titan hereby grants to Licensee, and Licensee accepts, the exclusive
right, license and privilege to use the Technology within the
Territory in connection with the design, manufacture, construction,
maintenance and operation of the Projects, and operation thereof to
recycle and convert rubber products into reusable product, including
the right to sell and distribute Licensed Products and to practice
Licensed Processes. If a third party ("Interested Third Party")
approaches a party to this Agreement and such Interested Third Party
expresses a desire to construct and/or operate a Project in the
Territory, the contacted party will promptly notify the other parties
to this Agreement thereof; provided, however, in no event shall any
license or sub-license be granted to such third party without the
unanimous consent of all parties to this Agreement, which consent may
be withheld by any party in such party's sole and absolute discretion.
Licensee may, if it desires to do so in its sole and absolute
discretion, license the use of its plans for the design and
construction of its prior Projects and provide consulting services to
prospective licensees outside the Territory on terms and for fees as
may be mutually agreed upon between Licensee and the prospective
licensee.
2.2 The term of this Agreement shall commence as of the date hereof and
shall terminate, as to each Project, upon the permanent cessation of
operations of the Project, unless this License Agreement shall have
been sooner terminated by Licensor or Licensee pursuant to the
provisions of Articles 10, 11 or 28 below.
2.3 The Licensee may not assign, transfer, sublicense or otherwise convey
any of the rights granted to Licensee hereunder or any interest
therein, by operation of law or otherwise, to any person, firm,
corporation, or entity without the express prior written consent of
Titan; provided, however, the License rights hereunder may be assigned
to an entity to be formed by the Principals and/or to any subsidiary
of such new entity (such entity and/or its subsidiaries being referred
to herein as the "Operating Entities" or an "Operating Entity") if the
Operating Entity(ies) agree(s) to be bound to the terms of this
Agreement; provided further, however, if Principals and Titan reach
mutual agreement as to the terms of a modified agreement to control
with respect to the assigned interest, then the terms of such modified
agreement shall govern with respect thereto.
2.4 Licensee shall use the Technology only in the manner set forth in the
Agreement and shall use the Technology only in connection with the
design, manufacture, construction, maintenance and operation of the
Projects to recycle and convert tires and other rubber products.
Licensee covenants that the Projects will be designed, constructed and
operated in accordance with all applicable environmental standards of
the jurisdiction where the applicable Project is located.
2.5 Except upon expiration of exclusive right, title and license as
provided in Sections 10.1, 10.2, 10.3, 26, 27 and 28 below, the
Licensor shall not license or otherwise grant any other party any
right to use the Patent Rights, Licensed Marks, Licensed Processes or
Technology within the Territory for any purpose, unless it first
notifies Licensee of any such proposed license or use and obtains the
written approval thereof by Licensee which approval may be withheld in
Licensee's sole and absolute discretion. Except upon expiration of
exclusive right, title and license as provided in Sections 10.1, 10.2,
10.3, 26, 27 and 28 below, the Licensor agrees that Licensor shall not
in any way use the Patent Rights, Licensed Marks, Licensed Processes
or Technology itself within the Territory or permit any Affiliate of
Licensor to use same, without first obtaining written consent to such
license from Principals, during the term of this Agreement.
3. Samples: Products
3.1 Licensor may request, not more often than once each Calendar Quarter,
that Licensee present to Licensor at its principal place of business
in Albuquerque, New Mexico, at Licensee's sole cost and expense, a
sample of each Licensed Product being manufactured or sold by or on
behalf of Licensee and Licensee's analysis of each such product.
4. Inspection
4.1 The duly authorized representatives of Licensor and its guests shall
have the right, upon reasonable advance notice to Licensee and during
normal business hours, to inspect all facilities utilized by Licensee,
its contractors and suppliers, in connection with the design and
construction of Projects using the Technology and the manufacture,
sale, storage or distribution of products pursuant hereto.
4.2 Licensee shall market and sell Licensed Products produced at each
Project in accordance with and in observance of all applicable laws.
4.3 Any data reported to Titan by Licensee may be shared by Titan with
prospective licensees so long as Licensor obtains a written agreement
from the prospective licensee to keep such information confidential.
5. Consideration for License
5.1 Licensor shall receive an equity interest (expected to be in the form
of limited partnership interests) in the Operating Entity which owns
each Project as follows:
(a) First Project: 10%
(b) Second Project: 12%
(c) Third Project: 14%
(d) Fourth Project: 16%
(e) Fifth Project: 18%
(f) Sixth Project and each Project thereafter: 20%
Titan's ownership interest in each such Operating Entity shall consist
of a percentage interest equal to the applicable percentage listed
above for the Project owned by such Operating Entity, in the capital,
profit and loss allocations, deductions, distributions and the right
to share the proceeds upon sale or liquidation of assets of the
Operating Entity, which interest will not be diminished by any
recapitalization without its consent (other than the effect of capital
calls among owners of the Operating Entity for cash deficits), subject
to the terms and conditions of the partnership agreement, limited
liability company agreement or other applicable constituent document
for such entity which are applicable to all owners; provided, however,
that if one Operating Entity owns more than one Project, and if the
percentage interests which are applicable to such Projects under the
above schedule are not the same, then the Operating Entity shall keep
separate production records for each Project owned by it, and the
interest in profits and losses and deductions, the distribution of
cash and the right to share the proceeds upon sale or liquidation of
assets of the Operating Entity shall be determined separately for each
Project and specially allocated to Licensee separately for each
Project in accordance with the percentages provided above with respect
to each such Project.
5.2 All payments required hereunder shall be made in United States
dollars.
5.3 Subject to Paragraph 28 below, a one time license fee ("First Project
License Fee") of $1,000,000.00 for the First Project shall be paid to
Licensor by Licensee in 40 equal monthly installments of $25,000 each
("Monthly Installments"), with the first Monthly Installment due
within 2 business days after the date the First Project has achieved
Construction Commencement, and with such Monthly Installments to
continue on the same day of each month thereafter until the 40th
Monthly Installment has been paid.
5.4 A one time license fee ("Subsequent Project License Fee") of
$1,000,000.00 for the Second and each subsequent Project shall be paid
to Licensor by Licensee, with each such Subsequent Project License Fee
to be paid in 40 equal monthly installments of $25,000 each ("SP
Monthly Installments"), with the first SP Monthly Installment due
within 2 business days after the date the applicable Project has
achieved Construction Commencement, and with such SP Monthly
Installments for such Project to continue on the same day of each
month thereafter until the 40th SP Monthly Installment has been paid
with respect to such Project. The Subsequent License Fee for the
Second and each subsequent Project shall not be earned or assessed
unless and until Construction Commencement has actually occurred with
respect to the applicable Project. The First Project License Fee and
each Subsequent Project License Fee for all subsequent Projects may be
collectively or generically referred to herein as the "License Fees"
or a "License Fee".
5.5 In addition to the License Fee, Licensee agrees to pay Licensor a
production royalty ("Production Royalty") for the Licensed Product
produced from each Project as follows:
(a) The Production Royalty shall be equal to one and 70/100 percent
(1.7%) of Gross Sales, to be paid in arrears on a Quarterly basis
within thirty (30) days following the end of each Calendar
Quarter and shall be accompanied by copies of settlement sheets
or other appropriate documentation in sufficient detail to verify
quantity of product sold and Gross Sales Price therefore and
shall be based solely on actual Gross Sales.
6. Infringement. Licensee shall promptly notify Licensor of any infringement
of the Technology whenever such infringement shall come to the Licensee's
actual attention. After receipt of such notice from Licensee, Licensor
shall advise Licensee of its decision either:
6.1 to elect to take such action to stop such infringement or act as
Licensor may deem necessary in which event: (a) Licensee shall
cooperate fully with Licensor in connection therewith, and, if so
requested by Licensor, shall join with Licensor as a party to any
action brought by Licensor for such purpose; (b) Licensor shall have
full control over any action taken, including without limitation the
right to select counsel, to settle on any terms it deems advisable in
its discretion, to appeal any adverse decision rendered in any court,
to discontinue any action taken by it, and otherwise to make any
decision in respect thereto as it in its discretion deems advisable,
and (c) Licensor shall bear all expenses connected with the foregoing;
or
6.2 to elect to have Licensee take control over the action, in which
event: (a) Licensor shall cooperate fully with Licensee in connection
therewith, and, if so requested by Licensee, shall join with Licensee
as a party to any action brought by Licensee for such purpose; (b)
Licensee shall have control over any action taken, provided that
Licensor shall not be liable for any settlement effected without its
express prior consent; and (c) Licensee shall bear all expenses in
connection therewith and shall reimburse any payments, including,
without limitation, any settlement payments, made by Licensor in
connection therewith promptly upon request. (d) Any recovery as a
result of any such action shall belong solely to Licensor, except to
the extent that such recovery represents damage specifically allocated
to Licensee, in which event such specified recovery shall be paid to
Licensee.
7. Additional Covenants and Agreements
7.1 Licensee shall have no right to terminate this License Agreement or to
be released, relieved, or discharged from its obligations hereunder in
the case of the following:
(a) any default, misrepresentation, negligence, gross negligence,
misconduct, willful misconduct or other action or inaction of any
kind by Licensee;
(b) the insolvency, bankruptcy, reorganization or cessation of
existence, or discharge or forgiveness of indebtedness of
Licensee;
(c) any defect in the title to, or any lien or other restriction of
any kind upon the use of, any of the Licensed Marks for any
reason whatsoever to the extent such defect, lien, or other
restriction is the result of any actions taken or not taken by
Licensee;
(d) any restriction, prevention or curtailment of or interference
with the use of any of the Licensed Marks for any reason
whatsoever to the extent such restriction, prevention,
curtailment or interference is the result of any actions taken or
not taken by Licensee; and
(e) any law now or hereafter in force.
7.2 Licensor shall have no right to terminate this License Agreement or to
be released, relieved, or discharged from its obligations hereunder in
the case of the following:
(a) any default, misrepresentation, negligence, gross negligence,
misconduct, willful misconduct or other action or inaction of any
kind by Licensor;
(b) the insolvency, bankruptcy, reorganization or cessation of
existence, or discharge or forgiveness of indebtedness of
Licensor;
(c) any defect in the title to, or any lien or other restriction of
any kind upon the use of, any of the Licensed Marks for any
reason whatsoever;
(d) any restriction, prevention or curtailment of or interference
with the use of any of the Licensed Marks for any reason
whatsoever; and
(e) any law now or hereafter in force.
8. Patents
8.1 Without otherwise restricting Licensor from filing and prosecuting, at
its own expense and cost, further domestic and foreign patent
applications corresponding to the Licensed Products and Licensed
Processes and maintaining any patents resulting therefrom, Licensor,
from time to time when so requested by Licensee, shall (to the extent
permitted by the patent law of the country in question) file, or do
all things reasonably necessary to enable Licensee to file in the name
of Licensor, patent applications in such country or countries covering
the Invention, Technology, Licensed Products, and Licensed Processes
as shall be designated by Licensee. The filing, prosecution, and
maintenance of any such patent applications or patents, the filing of
which shall be so requested by Licensee, shall be at the sole expense
of Licensee.
8.2 Licensee shall have the right, at any time and upon notice to Licensor
of not less than one (1) month, to terminate the rights and
obligations conferred on it under Article 8.1 above with respect to
the prosecution and/or maintenance of any patent applications or
patents specified in such notice, provided that any such termination
shall not terminate Licensee's obligation to pay any and all fees,
costs, or expenses theretofore incurred by Licensee in connection with
such prosecution and/or maintenance. In any such event, Licensor shall
have the right, at its option and at its sole expense, to continue
such prosecution or maintenance through patent attorneys of its own
choice.
9. Grant Back and Cross-License
9.1 If Licensee develops improvements to the Licensed Products, Licensed
Processes, or Technology, (i) Licensee shall be required to license
such improvements to Licensor, (ii) such improvements shall be
licensed back to Licensee as a part of the rights licensed hereunder
in accordance with all the terms and provisions hereof, (iii) Licensor
shall be entitled to sublicense such improvements to other licensees
or sub-licensees not covered by this License Agreement to the extent
such license to other parties would not be a violation of exclusive
license within the Territory of the Technology hereunder or otherwise
in violation of the provisions of this License Agreement. The rights
of Licensor with respect to such improvements shall be on a
royalty-free basis, and Licensee shall execute such documents as may
be reasonably required to perfect Licensor's rights hereunder,
including confirmation that Licensor is the owner of any such
improvements.
10. Events of Default: Termination
10.1 Each of the following shall constitute an event of default by Licensee
("Licensee Event of Default") under this License Agreement: (a) If
Licensee shall breach in any material respect any of its monetary
obligations under this License Agreement, and such breach is not
remedied within fifteen (15) days after written notice thereof from
Licensor (b) If Licensee shall breach in any material respect any of
its non-monetary obligations under this License Agreement, and such
breach is not remedied within thirty (30) days after written notice
thereof from Licensor; provided, however, if such default is not for
the payment of money and is not reasonably capable of being cured
through Licensee's diligent and continuous effort within thirty (30)
days after written notice thereof, then there shall not exist a
Licensee Event of Default so long as Licensee commences to cure such
default within 30 days after such notice, and thereafter applies its
reasonable best efforts to cure such default, and does in fact cure
such default within 120 days of the initial notice of default; or (c)
If Licensee shall cease doing business as a going concern; or (d) If
Licensee shall fail to perform or observe the Confidentiality and
Non-Circumvention Agreement executed in connection herewith and
attached thereto as Schedule "A" ("Confidentiality and
Non-Circumvention Agreement"), and such failure is not remedied within
thirty (30) days after written notice thereof from Licensor; provided,
however, if such failure is not for the payment of money and is not
reasonably capable of being cured through Licensee's diligent and
continuous effort within thirty (30) days after written notice
thereof, then there shall not exist a Licensee Event of Default so
long as Licensee commences to cure such default within 30 days after
such notice, and thereafter applies its reasonable best efforts to
cure such default, and does in fact cure such default within 120 days
of the initial notice of default.
10.2 As used in this Agreement, the term "default" shall mean any
condition, event or state of facts which, after notice or lapse of
time, or both, would be an event of default.
10.3 If a Licensee Event of Default shall occur and be continuing, Licensor
shall be entitled to do any one or more of the following remedies: (i)
bring an action for specific performance of Licensee's obligations
hereunder or seek injunctive relief to enjoin Licensee from violating
the terms of this License Agreement or otherwise seek such equitable
relief as may be appropriate with respect to such Licensee Event of
Default, and/or (ii) bring an action for damages against Licensee
resulting from such Licensee Event of Default, and/or (iii) Licensor,
at Licensor's option may pay or perform the underlying obligation for
the account of Licensee which is the subject of the default, in which
case Licensee shall reimburse Licensor upon demand for all expenses
incurred by Licensor in paying or performing the underlying obligation
for the account of Licensee, and/or (iv) terminate this License
Agreement by delivering written notice thereof to Licensee and/or (v)
seek such other relief as may be available at law or in equity;
provided, however, (x) in no event shall Licensor have the right to
terminate this License Agreement with respect to any Project
("Unaffected Project") existing at the time of the Licensee Event of
Default if the default giving rise to the Licensee Event of Default
does not directly relate to such Unaffected Project, and
notwithstanding the termination of this License Agreement as to any
Project or Projects, Licensee shall continue to enjoy all license
rights hereunder as they relate to the Unaffected Project and (xx) in
the event of a failure to the meet the Construction Commencement
Requirements of Paragraph 27 below, Licensor's sole and exclusive
remedies with respect to such failure shall be those set forth in said
Paragraph 27 and (xxx) in the event of a Licensee Event of Default
relating to Licensee's failure to meet its Required Share Obligations
(as defined below), Licensor's sole and exclusive remedy shall be to
terminate this Agreement as provided above.
10.4 Each of the following shall constitute an event of default by Licensor
("Licensor Event of Default") under this License Agreement:
(a) If Licensor shall breach in any material respect any of its
obligations or representations and warranties under this License
Agreement, and such breach is not remedied within thirty (30)
days after written notice thereof from Licensee; provided,
however, if such default is not for the payment of money and is
not reasonably capable of being cured through Licensor's diligent
and continuous effort within thirty (30) days after written
notice thereof, then there shall not exist a Licensor Event of
Default so long as Licensor commences to cure such default within
30 days after such notice, and thereafter applies its reasonable
best efforts to cure such default, and does in fact cure such
default within 120 days of the initial notice of default;
provided, further however, if such breach results in Licensee
being substantially unable to use and enjoy the Technology
licensed hereunder, such notice and cure period shall not be
applicable and a Licensor Event of Default shall be deemed to
exist immediately upon the happening of such breach and Licensee
may immediately exercise its remedies set forth below;
(b) If Licensor shall fail to perform or observe any material term,
condition, agreement or covenant on its part to be performed or
observed pursuant to this License Agreement, including the
Confidentiality and Non-Circumvention Agreement, and such failure
is not remedied within thirty (30) days after written notice
thereof from Licensee; provided, however, if such failure is not
for the payment of money and is not reasonably capable of being
cured through Licensor's diligent and continuous effort within
thirty (30) days after written notice thereof, then there shall
not exist a Licensor Event of Default so long as Licensor
commences to cure such default within 30 days after such notice,
and thereafter applies its reasonable best efforts to cure such
default, and does in fact cure such default within 120 days of
the initial notice of default; provided, further however, if such
breach results in Licensee being substantially unable to use and
enjoy the Technology licensed hereunder, such notice and cure
period shall not be applicable and a Licensor Event of Default
shall be deemed to exist immediately upon the happening of such
breach and Licensee may immediately exercise its remedies set
forth below.
10.5 If a Licensor Event of Default shall occur and be continuing, Licensee
shall be entitled to do any one or more of the following remedies: (i)
bring an action for specific performance of Licensor's obligations
hereunder or seek injunctive relief to enjoin Licensor from violating
the terms of this License Agreement or otherwise seek such equitable
relief as may be appropriate with respect to such Licensor Event of
Default, and/or (ii) bring an action for damages against Licensor
resulting from such Licensor Event of Default, and/or (iii) if, as a
result of such Licensor Event of Default, Licensee is unable to
operate any of the Projects in materially the same manner as Licensee
operated such Projects immediately prior to the Licensor Event of
Default, Licensee, at Licensee's option may pay or perform the
underlying obligation for the account of Licensor, in which case
Licensor shall reimburse Licensee upon demand for all expenses
incurred by Licensee in paying or performing the underlying obligation
for the account of Licensor, and if Licensor fails to reimburse
Licensee for such expenses within thirty (30) days of Licensee's
demand therefor, Licensee may thereafter offset the Royalty due to
Licensor by the amounts owing by Licensor and/or (iv) terminate this
License Agreement by delivering written notice thereof to Licensor
and/or (v) seek such other relief as may be available at law or in
equity.
11. Effect of Expiration or Termination
11.1 Upon any expiration or termination of this Agreement:
(a) all rights of Licensee hereunder shall terminate and revert
automatically to Licensor, and neither Licensee nor any of its
receivers, representatives, trustees, agents, successors or
assigns (by operation of law or otherwise) shall have any right
to manufacture, exploit, advertise, merchandise, promote, sell,
distribute or deal in or with Licensed Product (except to the
extent that the Patent Rights after such termination no longer
protect against third parties using the Technology) and Licensee
and all of its receivers, representatives, trustees, agents,
successors or assigns (by operation of law or otherwise) shall
forthwith discontinue all use of the Licensed Marks and any
variation or simulation thereof, or any xxxx confusingly similar
or likely to create confusion therewith, and all references
thereto or hereto, and all designs, Samples and labels provided
or employed hereunder, and all designs, Samples and labels
provided or employed hereunder, including any modifications or
improvements thereof and any patents, trademarks, copyrights,
trade names and other proprietary rights in connection therewith,
and Licensee hereby irrevocably releases and disclaims any right
or interest in or to any and all of the foregoing; and (b)
Licensor shall forthwith have the unrestricted right to
manufacture, advertise, merchandise, promote, sell and distribute
Licensed Products directly or through others, and to grant
licenses with respect to Licensed Products and the Licensed
Marks.
12. Insurance
12.1 Licensee has obtained, and shall maintain at its own expense in full
force and effect at all times during which the Licensed Products are
being sold and used, with a reasonably acceptable insurance carrier,
products liability insurance policy with limits of liability customary
in the industry, but only to the extent such insurance is readily
available at commercially reasonable prices in the jurisdictions where
the Licensed Products are being sold. Such insurance shall be for the
benefit of and shall name as co-insured Licensor, its affiliates and
subsidiaries, and their respective officers, directors, controlling
persons, successors in interest and assigns, and shall provide for at
least thirty (30) days' prior written notice by the carrier thereof
(each an "Insurance Notice") to Licensor and Licensee of the
cancellation or modification thereof.
13. Representation and Warranties
13.1 Licensee hereby represents and warrants to Licensor, as of the
Effective Date, as follows:
(a) Licensee consists of natural persons of majority age with
capacity to enter into this Agreement.
(b) Any Operating Entity will be limited partnership, limited
liability company or other entity duly organized, validly
existing and in good standing under the laws of the jurisdiction
organized.
(c) Neither the execution, delivery nor performance of this Agreement
by Licensee will, with or without the giving notice or passage of
time, or both, conflict with, or result in a default or loss of
rights under, any provision of any of the constituent documents
of any Operating Entity or under any contract or agreement under
which Licensee is a party or by which it or any of its properties
may be bound.
(d) Licensee has full power and authority to enter into this
Agreement and to carry out the transactions contemplated thereby
in accordance with its terms; the execution, delivery, and
performance of this Agreement by Licensee have been duly and
properly authorized by all necessary actions; and this Agreement
constitutes the valid and binding obligation of Licensee
enforceable in accordance with its terms.
(e) Licensee has reviewed the terms and conditions of this Agreement
and Licensee has found no provision which would result on the
invalidity, unenforceability, impossibility or illegality of
performance of this Agreement for any reason, and Licensee will
not assert same in the future.
13.2 Licensor hereby represents and warrants to Licensee that, as of the
Effective Date:
(a) Licensor is a corporation duly organized, validly existing and in
good standing under the laws of The State of New Mexico.
(b) Neither the execution, delivery nor performance of this Agreement
by Licensor will, with or without the giving notice or passage of
time, or both, conflict with, or result in a default or loss of
rights under, any provision of the Certificate of Incorporation
or By-Laws of Licensor or under any contract or agreement under
which Licensor is a party or by which it or any of its properties
may be bound.
(c) Licensor has full power and authority to enter into this
Agreement and to carry out the transactions contemplated thereby
in accordance with its terms; the execution, delivery, and
performance of this Agreement by Licensor have been duly and
properly authorized by all necessary corporate actions; and this
Agreement constitutes the valid and binding obligation of
Licensor enforceable in accordance with its terms.
(d) The granting of the rights hereunder to Licensee and the use of
the Technology or any aspect thereof by Licensee pursuant to the
terms hereof will not result in a breach of, or constitute a
default under any agreement or restriction to which Licensor is a
party or by which Licensor may be bound or affected, nor shall
the use of the Technology by Licensee pursuant to the terms
hereof (including Licensed Processes, Inventions and Licensed
Products) give rise to any claim of infringement by any person,
and no person is claiming or has a right to claim any
infringement with respect to such use of the Technology or any
aspect thereof.
(e) Licensor is the owner of the entire right, title, and interest in
and to the Patent Rights and Technology.
(f) Licensor has the sole right to grant licenses under the Patent
Rights and Technology.
(g) There are no license rights or any other rights in favor of any
other person or entity within the Territory under the Patent
Rights or Technology or any aspect thereof.
(h) There are no claims, actions, suits, proceedings or
investigations pending or threatened before any federal, state or
local court or governmental or regulatory authority, domestic or
foreign, or before any arbitrator of any nature, brought by or
against Licensor or any of its Affiliates or any of their
respective officers, directors, employees, agents or affiliates
involving, affecting or relating to any of the Patent Rights,
Technology, Licensed Marks, Licensed Processes or Licensed
Products, nor does there exist any fact which might reasonably be
expected to give rise to any such suit, proceeding, dispute or
investigation.
(i) Licensor has reviewed the terms and conditions of this Agreement
and Licensee has found no provision which would result on the
invalidity, unenforceability, impossibility or illegality of
performance of this Agreement for any reason, and Licensor will
not assert same in the future.
Licensor agrees to indemnify, defend and hold Licensee harmless
of, from, against and in respect of any and all losses, damages,
liabilities, claims, fines, taxes, penalties and other costs and
expenses including, but not limited to, all reasonable attorney's
fees, expenses and court costs, and all judgments, awards,
settlements and other costs and expenses incurred in connection
with any actual, pending or threatened suit, proceeding or claim,
incurred or sustained by the Licensee, directly or indirectly,
arising out of any misrepresentation, breach or non-fulfillment
of the above representations and warranties by Licensor.
14. Disclaimer
----------
14.1 LICENSOR MAKES NO WARRANTIES OR REPRESENTATIONS REGARDING THE
TECHNOLOGY, LICENSED PRODUCTS, LICENSED PROCESSES, PATENT RIGHTS,
LICENSED MARKS, OR CONFIDENTIAL INFORMATION EXCEPT AS SPECIFICALLY SET
FORTH IN THIS AGREEMENT. EXCEPT AS SPECIFICALLY SET FORTH IN THIS
AGREEMENT, LICENSOR HEREBY SPECIFICALLY DISCLAIMS AND EXCLUDES ANY
WARRANTIES, EXPRESS OR IMPLIED, PERTAINING TO ANY CAPABILITIES,
LIMITATIONS, RISKS, OR PARTICULAR APPLICATIONS OF THE TECHNOLOGY,
LICENSED PRODUCTS, LICENSED PROCESSES, PATENT RIGHTS, LICENSED MARKS,
OR CONFIDENTIAL INFORMATION. LICENSOR FURTHER HEREBY DISCLAIMS AND
EXCLUDES ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO TECHNICAL
INFORMATION OR OTHER COMMUNICATION HEREUNDER SHALL BE DEEMED A
WARRANTY OR REPRESENTATION EXCEPT TO THE EXTENT IT IS SPECIFICALLY
DENOMINATED AS SUCH. LICENSEE HAS TECHNICAL EXPERTISE AND EXPERIENCE
IN THE FIELDS OF USE CONTEMPLATED FOR ALL LICENSED MATTER UNDER THIS
AGREEMENT, AND PRIOR TO ENTERING INTO THIS LICENSE AGREEMENT LICENSEE
HAS EXTENSIVELY USED, INVESTIGATED AND FAMILIARIZED ITSELF WITH ALL
LICENSED MATTER UNDER THIS AGREEMENT, AND HAS FULLY SATISFIED ITSELF
OR WILL UNDERTAKE TO FULLY SATISFY ITSELF IN THE FUTURE AS TO ALL
ASPECTS OF SUCH LICENSED MATTER, INCLUDING ALL CAPABILITIES,
LIMITATIONS, RISKS OR PARTICULAR APPLICATIONS. LICENSEE ACCEPTS THE
RISKS OF THIS LICENSE, FORESEEN OR UNFORESEEN, AND AGREES THAT ALL OF
ITS OPERATIONS AND SUBLICENSING PURSUANT TO THIS AGREEMENT SHALL BE AT
ITS OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY LAW, LICENSOR SHALL
NOT BE LIABLE FOR ANY DAMAGE OR LOSS OF ANY KIND, WHETHER DIRECT OR
INDIRECT, INCIDENTAL OR CONSEQUENTIAL, UNDER ANY THEORY OF LIABILITY,
ARISING OUT OF OR RELATING TO THE USE OF THE TECHNOLOGY, LICENSED
PRODUCTS, LICENSED PROCESSES, PATENT RIGHTS, LICENSED MARKS, OR
CONFIDENTIAL INFORMATION.
15. Brokers.
15.1 Each of Licensor and Licensee hereby represents and warrants to the
other that it has not employed or dealt with any broker or finder in
connection with this Agreement or the transactions contemplated
hereby, and agrees to indemnify the other and hold it harmless from
any and all liabilities (including, without limitation, reasonable
attorneys' fees and disbursements paid or incurred in connection with
any such liabilities) for any brokerage commissions or finders fees in
connection with this agreement or the transactions contemplated hereby
insofar as such liabilities shall be based on the arrangements or
agreements made by it or on its behalf.
16. Notices
16.1 All reports, communications, requests or notices required by or
permitted under this Agreement to be in writing and shall be deemed to
be duly given on the date same is hand delivered, or when sent
facsimile copier with receipt confirmed, or when sent by an
internationally recognized overnight courier service, to the party
concerned at the following address:
If to Licensor: 0000 Xxxxxxxxxx X.X.
Xxxxxxxxxxx, Xxx Xxxxxx XXX 00000
Attention: President
tel: x000 000-0000
fax: x000 000-0000
If to Licensee: 000 Xxxx 0xx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Attn: Xxxxxx Xxxxxxx
Tel: x000 000-0000
Fax: x000 000-0000
Any party may change the address to which such notices and
communications shall be sent by written notice to the other parties,
provided that any notice of change of address shall be effective only
upon receipt.
17. Integration. This License Agreement sets forth the entire agreement and
understanding between the parties relating in any way to the use of the
Technology, Licensed Marks, Licensed Process, Inventions and Licensed
Products, or to any other subject matter contained herein and merges all
prior discussions, arrangements and agreements between them.
18. Amendments.
18.1 This Agreement may not be amended or modified except by written
instrument signed by each of the parties thereto.
19. Relationship of Parties.
19.1 Nothing herein contained shall be construed to constitute the parties
hereto as partners or as joint venturers except to the extent that
Licensor is contemplated as being an equity participant in Operating
Entities pursuant to Paragraph 5.1 of this Agreement, or either as
agent of the other. Neither party hereto by virtue hereof shall have
the right or authority to act for or to bind the other in any way or
to sign the name of the other or to represent that the other is in any
way responsible for the acts or omissions of the other.
20. Interpretation.
20.1 This License Agreement has been negotiated and drafted by both parties
in the English language and Licensee acknowledges that it has been
reviewed by legal counsel of its choice, and that use of the English
language (including use of the English language in any arbitration
proceedings as set forth below) does not prejudice Licensee's
understanding of the terms and conditions contained herein. The
headings given to the paragraphs of this Agreement are for the
convenience of the parties only and are not to be used in any
interpretation of this Agreement.
21. Jurisdiction.
21.1 Licensor and Licensee hereby agree that this License Agreement is
governed by the laws of New Mexico, except the Rules of Private
International Law (conflict of laws) and thereby any renvoi to any
other jurisdiction or law shall be excluded.
22. Severability.
22.1 In the event that any one or more provisions of this Agreement shall
be held invalid, illegal or unenforceable in any respect, the
validity, legality or enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired thereby.
23. Waiver.
23.1 No failure or delay on the part of either party in exercising any
power or right under this Agreement shall operate as a waiver thereof,
nor shall any single or partial exercise of any such power or right to
preclude any other or further exercise thereof or the exercise of any
other power or right. No waiver by either party of any provision of
this Agreement, or of any breach or default, shall be effective unless
in writing and signed by the party against whom such waiver is to be
enforced. All rights and remedies provided for herein shall be
cumulative and in addition to any other rights or remedies such
parties may have at law or in equity.
24. Arbitration.
24.1 In the event of any dispute hereunder and Licensor and Licensee shall
not reach agreement within thirty (30) days of such dispute, either
party may submit the issue to arbitration in accordance with the
provisions of this Article.
24.2 Any disputes concerning this License Agreement shall be exclusively
and finally settled by an arbitration tribunal constituted and ruling
under the Rules of Conciliation and Arbitration of the International
Chamber of Commerce composed of three arbitrators appointed in
accordance with said rules. The parties agree that the place of
arbitration shall be Albuquerque, New Mexico and that the language of
any such arbitration proceedings shall be English.
24.3 Nothing contained herein shall be deemed to restrict the right of
Licensor to seek other remedies in the event that a dispute relates to
alleged violation of the Confidentiality and Non-Circumvention
Agreement.
24.4 No provision of, nor the exercise of any rights under, this Article 24
shall limit the right of any party, and the parties shall have the
right during any dispute, to seek, use, and employ ancillary or
preliminary remedies, judicial or otherwise, for the purposes of
realizing upon, preserving, protecting, or foreclosing upon any
property which is involved in a dispute, including, without
limitation, rights and remedies relating to: (a) foreclosing against
any real or personal property collateral or other security by the
exercise of a power of sale under a deed of trust mortgage, or other
security agreement or instrument, or applicable law; (b) exercising
self help remedies (including set off rights); or (c) obtaining
provisions or ancillary remedies such as injunctive relief,
sequestration, attachment, garnishment, or the appointment of a
receiver from a court having jurisdiction before, during, or after the
pendency of any arbitration. The institution and maintenance of an
action for judicial relief or pursuit of provisional or ancillary
remedies or exercise of self help remedies shall not constitute a
waiver of the right of any party, including the plaintiff, to submit
the dispute to arbitration nor render inapplicable the compulsory
arbitration provisions hereof. In disputes involving indebtedness or
other monetary obligations, each party agrees that the other party may
proceed with arbitration against all liable persons, jointly and
severally, or against one or more of them, less than all, without
impairing rights against other liable persons.
25. Attorneys Fees. If any action at law or in equity is necessary to enforce
or interpret the terms of this Agreement, including any arbitration
proceeding as required or permitted herein, the prevailing party or parties
shall be entitled to reasonable attorney's fees, costs and necessary
disbursements in addition to any other relief to which such party or
parties may be entitled.
26. Stock Purchase Matters.
26.1 Licensor represents and warrants to Licensee that, as of the Effective
Date hereof,
(i) Licensor is authorized to issue, in the aggregate, 50,000,000
shares of common stock, no par value per share (herein called
"Common Stock"),
(ii) each share of such Common Stock has identical rights and
privileges in every respect,
(iii) there is no other class of stock issued or authorized to be
issued by Licensor,
(iv) out of the total authorized shares of Common Stock, no more than
44,786,658 shares have been issued,
(v) there are at least 5,213,342 remaining authorized but unissued
shares of Common Stock (the "Authorized But Unissued Shares"),
and
(vi) there are no options, warrants, or other similar rights to
acquire shares of Common Stock that, upon the exercise or
conversion thereof, would reduce the number of Authorized But
Unissued Shares below that set forth in clause (v) above.
Licensor further represents, warrants, and covenants to Licensee
that
(A) all of the information set forth in all reports filed by
Licensor pursuant to the Securities Act of 1933, as amended,
and to the Securities Exchange Act of 1934, as amended, is
and will be true and correct in all material respects at the
time of filing,
(B) Licensor's issuance of shares of Authorized But Unissued
Shares to Licensee in accordance with the terms and
conditions of this Agreement does not and will not violate
any preemptive or other rights of any person,
(C) all shares of Authorized But Unissued Shares issued and to
be issued to Licensee in accordance with the terms and
conditions of this Agreement shall, upon such issuance, be
validly issued, fully paid, and non-assessable, and shall be
issued free and clear of any liens, encumbrances or other
claims whatsoever,
(D) Licensor shall at all times have duly authorized a
sufficient number of shares of Common Stock to allow
Licensee to purchase all of the Authorized But Unissued
Shares that Licensee is entitled to purchase pursuant to the
terms and conditions of this Agreement, and
(E) Licensor shall at all times make publicly available such
information as is necessary to enable Licensee to sell under
Rule 144 of the Securities Act of 1933, as amended,
Authorized But Unissued Shares issued to Licensee pursuant
to this Agreement.
26.2 Licensee shall have the following obligations ("Required Share
Obligations") relative to the purchase of shares of the Authorized But
Unissued Shares:
(a) Within Ninety (90) days after the Effective Date of this
Agreement ("First Purchase Deadline"), Licensee shall purchase
$25,000.00 of the Authorized But Unissued Shares from Licensor at
the Market Price (as hereinafter defined) existing as of the day
the Required Share Notice (as hereinafter defined) with respect
thereto is delivered by Licensee to Licensor. The "Market Price"
shall be determined in all cases as of 5:00pm Fort Worth, Texas
time on the date for which a Market Price determination is
required ("Determination Point in Time"), and shall mean, as of
the applicable Determination Point in Time, the sales price per
share for the then most recent arms length sale for cash of
Common Stock by Licensor or by an existing stockholder of
Licensor, in either case to a third party who is not a party to
this Agreement or an affiliate of Licensor, as certified to
Licensee in each case in writing by Licensor's chief executive
officer or chief financial officer (which certification shall
include such supporting documentation and other information and
be in such format as Licensee reasonably shall require to allow
Licensee to determine the basis for the calculation of the Market
Price and the correctness of such calculation). A "Required Share
Notice" shall mean a written notice from Licensee to Licensor
identifying the total dollar amount for shares Licensee desires
to purchase at any given time toward satisfaction of its
obligations hereunder, which Required Share Notice shall include
a check or other transfer of funds from Licensee for the total
purchase price ("Stock Payment Amount") specified in the Required
Share Notice for the shares of Common Stock to be purchased
pursuant to such Required Share Notice (with the actual number of
shares of Common Stock so purchased, calculated based on the
Stock Payment Amount and the applicable Market Price, being
referred to herein as the "Purchased Shares").
(b) Within each of the succeeding nine (9) thirty day periods
following the First Purchase Deadline (each a "Succeeding
Purchase Deadline") (for a period of nine months after the First
Purchase Deadline) Licensee shall purchase an additional
$25,000.00 of Authorized But Unissued Shares at the Market Price
on the day(s) the Required Share Notice with respect thereto is
delivered by Licensee to Licensor. Accordingly, by the end of the
first year after the Effective Date, Licensee will have purchased
a total of $250,000 of the Authorized But Unissued Shares from
Licensor pursuant to the forgoing schedule. (The First Purchase
Deadline and the Succeeding Purchase Deadlines may be generically
referred to as "Purchase Deadline(s)")
(c) Licensee may purchase Authorized But Unissued Shares from Titan
at any time prior to the dates designated above, and any
Authorized But Unissued Shares purchased in excess of the shares
required to be purchased under the above schedule shall be fully
credited toward the shares required to be purchased by Succeeding
Purchase Deadlines until fully applied.
(d) The obligation of Licensee to purchase Titan stock will cease if,
at any time during the nine month period after the First Purchase
Deadline, Licensee causes Construction Commencement to occur with
respect to the First Project. Within 5 days after delivery of any
Required Share Notice (with payment of the Stock Payment Amount)
by Licensee to Licensor, Licensor shall send notice to Titan's
transfer agent to authorize issuance of the number of shares to
Licensee covered by the Required Share Notice at issue.
26.3 In additional to and separate from the Required Share Obligations,
upon the Effective Date and for a period of three months after the
Effective Date, Licensee shall have the option and right ("Option") to
purchase up to 750,000 additional Common Shares (in addition to shares
acquired under Section 26.2 above) (the "Optioned Shares") at a set
per share price of $0.10 per share. The Option may be exercised with
respect to all or any portion of the Optioned Shares by written notice
("Exercise Notice") from Licensee to Licensor, together with a check
for the total purchase price due for the shares covered by the
Exercise Notice, and Licensee shall have the right to exercise the
Option periodically so as to acquire the Optioned Shares in lots as
selected and specified by Licensee from time to time by separate
Exercise Notices to Licensor identifying the number of shares Licensee
desires to acquire with respect to each Exercise Notice. The shares of
Common Stock so purchased by exercise of the Option are referred to
herein as the "Purchased Option Shares".
26.4 Titan shall take all reasonable efforts to ensure that actual stock
certificates are issued by the transfer agent for the Purchased Shares
or Purchased Option Shares, within 15 days after the applicable
Required Share Notice or Exercise Notice, as applicable, but in any
event shall cause such stock certificates to be issued and delivered
to Licensee at the earliest possible time.
26.5 The Licensee agrees for itself and its principal members that each and
every one of them is an accredited investor as that term is defined in
Section 230.501(a) of Regulation D of the Securities Act of 1933,
that they are sophisticated, well informed investors as that term is
defined in Rule 109.13 of the Texas Administrative Code and that this
offering meets the requirements of Regulation D of the Securities Act
of 1933 and Rule 109.13 of the Texas Administrative Code. Licensee
acknowledges that Licensee has received copies of Section 5 of the
Texas Securities Act and Section 109.13 of the Texas Administrative
Code, a description of New Mexico exemptions for limited offering for
small businesses and Regulation D of the Securities Act of 1933.
Licensee agrees that Licensee is acquiring the shares for investment
and not with a view to further distribution, that Licensee will sign a
subscription agreement containing customary terms and conditions,
including an acknowledgement that the shares are not registered and
that in order to sell said shares the Licensee will need to either (i)
register the shares or sell them pursuant to available state and
federal exemptions from registration before they can be sold or (ii)
sell the shares in accordance with Rule 144 of the Securities Act of
1933 after waiting the required time periods.
26.6 Licensor will pay the costs for issuance of all Purchased Shares and
Purchased Option Shares, under the terms stated in Section 26.5 above.
Licensee will be liable for any costs associated with any subsequent
sales of any the Titan shares Licensee acquires pursuant to this
Agreement.
26.7 Licensor shall not sell any Authorized But Unissued Shares to any
other party which would or could result in Licensee being unable to
acquire the required number of Common Shares pursuant to the Required
Share Obligations or which would or could result in Licensee being
unable to acquire all of the Optioned Shares.
27. Project Schedule. Licensee agrees that Licensee will cause Construction
Commencement to occur with respect to Projects in accordance with the
following requirements ("Construction Commencement Requirements") set forth
in this Paragraph. Construction Commencement shall have occurred with
respect to the First Project within 12 months after the Effective Date of
this Agreement. Thereafter, Licensee will cause Construction Commencement
to occur for additional Projects so that the following schedule will be
adhered to within the following time periods:
(a) There shall have been a cumulative total of at least 3 Projects
(including the First Project) for which Construction Commencement
shall have occurred by the date which is three years after the
Effective Date hereof.
(b) There shall have been a cumulative total of at least 7 Projects
(including the First Project and all other prior Projects) for which
Construction Commencement shall have occurred by the date which is
four years after the Effective Date. (
c) There shall have been a cumulative total of at least 13 Projects
(including the First Project and all other prior Projects) for which
Construction Commencement shall have occurred by the date which is
five years after the Effective Date.
(d) There shall have been a cumulative total of at least 20 Projects
(including the First Project and all other prior Projects) for which
Construction Commencement shall have occurred by the date which is six
years after the Effective Date.
(e) For the year beginning on the sixth anniversary of the Effective Date,
and for each year commencing on each anniversary date thereafter (each
a "Subsequent Year"), Construction Commencement shall have occurred
with respect to at least 7 additional Projects during such Subsequent
Year; provided, however, so long as there is a zero or positive Excess
Project Balance at the end of any Subsequent Year, then Licensee shall
be deemed to have satisfied its obligations for such Subsequent Year,
regardless of whether there has been an actual Commencement of
Construction for 7 Projects during such year. "Excess Project Balance"
shall, at the end of any Subsequent Year, be equal to (i) the number
of Projects in excess of 20 for which Construction Commencement has
occurred as of the sixth anniversary of the Effective Date, less (ii)
the required number of Projects for which Construction Commencement is
required to have occurred hereunder for the Subsequent Year at issue
and all prior Subsequent Years, plus (iii) the number of Projects for
which Construction Commencement has actually occurred during the
Subsequent Year at issue and all prior Subsequent Years.
Each date on which a determination as to whether the Construction
Commencement Requirements have been met as provided above is referred
to herein as a "Compliance Determination Date".
28. License Exclusivity Upon Failure to Comply. Notwithstanding the provisions
of Paragraphs 2.1 and 2.5 herein above, if Construction Commencement
Requirements as provided above are not adhered to (subject to reasonable
extension for a Force Majeure Situation, as hereinafter defined) or if
Licensee does not meet the share purchase provision of Paragraph 26.2
above, then the exclusive license granted by paragraph 2.1 herein shall
cease and become non-exclusive and Licensor will have the right to license
the Technology anywhere in the Territory (referred to herein as an
"Exclusivity Forfeiture"); provided, however, (i) even in the event of an
Exclusivity Forfeiture, the license rights granted to Licensee hereunder
shall remain in effect with respect to any then existing Projects, but such
continuing license shall be non-exclusive and Licensor may grant other
license rights to other parties within the Territory (so long as same do
not purport to limit or impair Licensee's continuing non-exclusive license
rights); and (ii) in the event that the Construction Commencement
Requirements are not met as of any Compliance Determination Date, then
Licensee shall have the option to nonetheless maintain its exclusive
license rights hereunder by making payments ("Exclusivity Payments") to
Licensee in the amount of $25,000 per month per Project for which the
Construction Compliance Requirements are not met (commencing on the date
which is one month after the Compliance Determination Date for which the
Construction Commencement Requirements were not satisfied), and continuing
until such time as a sufficient number of Projects have achieved
Construction Commencement at any point in time so that the Construction
Commencement Requirements will have been satisfied as of the Compliance
Determination Date which occurs next after such point in time, and so long
as such Exclusivity Payments are so paid Exclusivity Forfeiture shall be
deemed not to have occurred and Licensor shall not have the right to grant
any other license rights to other parties within the Territory; and (iii)
with respect to any failure to meet the share purchase provisions of
Paragraph 26.2, an Exclusivity Forfeiture shall not be deemed to have
occurred unless and until Licensor has delivered written notice to Licensee
of Licensee's failure to timely make such purchases and Licensee fails to
cure its failure within 15 days after such notice. All Exclusivity Payments
shall be credited and applied toward the next License Fees which shall
become due and payable until such amounts are fully applied against same.
29. Force Majeure. A "Force Majeure Situation" shall be deemed to exist
hereunder with respect to any delay or failure of performance resulting
from acts of God or the public enemy, expropriation or confiscation of
facilities, compliance with any order or mandatory request of any
applicable governmental authority, acts of declared or undeclared war,
public disorder, rebellion, sabotage, revolution, earthquake, fire, flood
or other casualty, pestilence, riots, strikes or lockouts or labor
disputes, embargo, governmental restrictions, emergency acts, or the
inability of a party to obtain necessary materials or equipment due to
future laws, rules or regulations of governmental authorities, but
excluding causes which can be controlled by the expenditure of money in
accordance with good business practices, and only so long as the
non-performing party diligently and continuously attempts to cure the
non-performance caused by the Force Majeure Situation (giving consideration
to the effect of the Force Majeure Situation on such party's overall
business operations).
30. Feasibility. For a period of 90 days after the Effective Date hereof (the
"Feasibility Period"), Licensee will evaluate the feasibility of the
Projects contemplated hereunder. If Licensee is not satisfied in its sole
discretion as to the feasibility of the Projects, then Licensee may
terminate this Agreement by sending written notice thereof to Licensor on
or before expiration of the Feasibility Period, whereupon this Agreement
shall terminate and neither party shall have any further rights or
obligations hereunder.
31. Effective Date. The date on which this Agreement is executed by the last to
sign of the Licensor and Licensee, as indicated beneath their respective
signatures below, shall be the "Effective Date" of this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the Effective Date.
--------------------------------------------------------------------------------
LICENSOR: LICENSEE:
TITAN TECHNOLOGIES, INC.
By: /s/ Xxxxxx Xxxxxx /s/ Xxxxxxx X. Xxxxxx
--------------------------------- -----------------------------
Xxxxxxx X. Xxxxxx
Name: Xxxxxx Xxxxxx
-------------------------------
Title: President
------------------------------
Date Executed: May 17, 2005
----------------------
/s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------
Xxxxxxx X. Xxxxxxxxx
/s/ Xxx Xxxxx
--------------------------------
Xxx Xxxxx
Date Executed: May 16, 2005
-----------------
