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Exhibit 10.11
Exclusive Representative Agreement
THIS AGREEMENT, Effective This 15th Day of June 1999, Made Between:
Xxxxx Technology Licensing Inc., a publicly-traded Florida corporation which has
its principal offices at 0000 Xxxxx Xxxxx Xxxx, Xxxxx 000, Xxxxx, Xxxxxxx 00000
Untied States by its President Xxxx X. Xxxxx (hereinafter "TTL", "Licensor" or
the "Company");
and
Ranch La Xxxxxx Agropecuaria, X.X Xxxxx Xxxxx Xxxxxx casi Esq. 27 de Febrero
Edificio Professional, Apto Xx. 00 Xxxxxx, Xxxxxxxxx Xxxxxxxx by its Presidente
C. Xxxxxx Xxxxxx (hereinafter "Licensee")
WITNESSETH THAT
WHEREAS LICENSOR is the owner of various Technologies and commercializes same in
the form of products and services as that term is defined herein, AND
WHEREAS Licensee was formed to develop a Public Urban Development (PUD) within
the Dominican Republic consisting of at least 2,500 home units and to provide
all necessary utilities associated with the PUD, AND;
WHEREAS Licensor desires to grant an exclusive license under the terms and
conditions contained herein, AND;
WHEREAS Licensee desires to acquire an exclusive license under the terms and
conditions contained herein.
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants
contained herein and for other good and valuable consideration, the Parties
agree as follows:
1. Definitions
a. "Licensed Technology" means any patent and/or patent-pending technologies
commercialized by the Licensor in the form of products, equipment,
services or otherwise including the Pyrolytic Carbon Extraction(TM),
Balanced Oil Recovery System Lift(TM), Tunnel Bat Reclamation Vehicle(TM)
and any other item offered as a result of intellectual rights held by TTL.
However, TTL's "AquaFuel(TM)" is excluded from this license agreement and
nothing herein contained should infer that TTL is granting a sub-license
for the use of AquaFuel(TM) in any form. The Company's rights to license
its technologies is further done in light of those limitation imposed by
that certain joint-venture agreement known as AquaFuel-Dominicana, a copy
of which is attached hereto.
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b. "Licensed Product" means any use or related composition whose production,
structure, or use embodies any Licensed Technology or disclosed patent
application and/or would infringe a Licensed Technology in the absence of
this License Agreement, or displays or is commercialized by a Licensed
Trademark.
c. "Licensed Service" means any designing, making, specifying, or any
instruction, leasing, or performance of other services relating to any
License Product for, to, or with a customer or other party, whether for
compensation or not.
d. "Licensed System" means any apparatus, assembly, device, or structure for
producing or using a Licensed Product, with or for use with (or without)
other accessories.
e. "Licensed Trademark" means any US registered xxxx relating to the Licensed
Technology or Licensed Patent.
f. "Improvement" means any substantial change in any foregoing defined item
(a to e) during this Agreement, whether made by Licensor, Licensee or
both, or otherwise owned and/or licensable by either of them to the other.
g. "License Territory" means South and Central America such as the Xxxxxxxxx
Xxxxxxxx, Xxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxx, Xxxxxxx, Brazil, Peru,
Bolivia, Paraguay, Argentina, Uruguay, Chile, Costa Rica, Mexico
2. License and Sublicenses
a. LICENSOR hereby grants to LICENSEE an indivisible, non-assignable right
and license to make, use, lease, sell, and otherwise practice commercially
the defined Licensed subject matter within the Licensed Territory.
b. So long as LICENSEE is in good standing under this Agreement, this grant
is to be exclusive, meaning that LICENSOR will not grant any third party a
similar license in the License Territory, except to parties with whom
LICENSOR has or may have an ongoing obligation, as noted in the Appendix
hereto.
c. LICENSEE shall have the right to apply any Licensed Trademark to Licensed
Products and other components approved by LICENSOR and sold by LICENSEE
for construction of Licensed Systems, but LICENSEE. shall use Licensed
Trademarks only in accordance with acceptable trademark practice and
subject to the provisions of this Agreement.
d. LICENSEE may grant sublicenses, contingent upon LICENSEE's retention of
its license under this Agreement, whereupon LICENSEE will become and
remain obligated to share equally (50/50) with LICENSOR all royalties
accruing from each such sub-Licensee and to report and pay the same to
Licensor.
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e. Each such sublicense granted by LICENSEE shall be upon terms and
conditions not significantly more favorable to the subLicensee than the
terms and conditions of the present License Agreement are to LICENSEE,
excepting only if LICENSEE shall have disclosed the proposed sublicense to
Licensor in advance and to have received Licensor's express written
approval of such more favorable terms/conditions.
f. Each sublicense granted by LICENSEE under this Agreement will provide
expressly that it is so granted and that--in the event that LICENSEE
should discontinue its license hereunder or its license otherwise become
terminated-the subLicensee will become a Licensee of the Licensor by
substitution for LICENSEE, unless prohibited by law.
3. License Term
The Term of this Agreement, if not sooner ended by the act of a party or
the operation of law, shall end upon expiration of the last to expire of any
license, patent or other similar device relating to any of the Licensed subject
matter.
4. Confidentiality
a. To the extent that LICENSEE receives Licensed Know-bow, or either party
becomes aware of other proprietary information from the other party via
their relationship pursuant to this Agreement, each recipient of such
information will hold it in confidence so long as the other party
effectively treats it as confidential, except as specific information
becomes public knowledge otherwise than by or from LICENSEE.
b. The parties will ensure that their personnel sign Confidentiality and/or
Non-Competition Agreements in customary form or otherwise as may
reasonably be required by either party.
c. The foregoing obligation to keep proprietary information confidential and
to safeguard it within the organization of a party will survive any
termination of this Agreement to the extent that such information is not
common trade knowledge.
5. Payment and Royalties
a. Licensee shall pay the sum of $5,500,000 (five-million, five-hundred
thousand dollars, US currency) to Licensor upon execution of this
Agreement as per the terms of this agreement.
b. Payment required in item 5a hereinabove shall be made in the form of real
property provided:
i. That such payment is accompanied by the following:
(a) The subject property consists of 750,000 square-meters located
in the Dominican Republic which has been reserved for the
Pre-Planned Use as that term is defined below;
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(b) That the subject property be accompanied by a Banco Nacional
De La Vivienda which serves as the Government of the
Dominican Republic Federal Housing Authority ("DR-FHA")
valuation issued by the DR-FHA which appraisal values the
property at 000 Xxxxxxxxx Xxxxxxxx pesos per square-meter or a
total appraised value of $187,500,000 (one-hundred and
eighty-seven million, five-hundred thousand Dominica Republic
pesos) which, on the date this Agreement is executed, is
convertible into United States dollars equal to $16.12 per
square meter or a total appraisal of $12,090,000
(twelve-million, ninety-thousand, US Currency). The appraisal
required by this item 5bi(b) shall be included hereon as
Exhibit 1 and made a part hereof.
(c) That the authority issuing the subject appraisal is verified
by opinion issued by an independent certified public
accountant provided such firm is licensed to practice in the
United States and operates under the provisions of United
States Generally Accepted Accounting Principals. The
independent certified public accountant verification shall be
included hereon as Exhibit 2 and made a part hereof.
ii. Limited Use of Real Property:
(a) Licensee shall grant full title to the real property described
in this Agreement provided:
(i) Licensee acknowledges that the property being given
over as payment for this Agreement is to be used
exclusively as that certain Public Urban Development
which, among other things, envisions the 750,000
square-meters shall be divided into 2,500 lots as
reflected in the plot map provided by Xxxxxxx
Xxxxxxxxx Xxxxxxx, Dominican Republic-based
architects for the PUD.
(ii) Licensee intends that each of the 2,500 home-sites is
to be sold at the rate of $22,000 per home site and
that upon each sale, title to a particular plot shall
transfer from PUD LHT to the individual buyer.
(iii) Licensee and Licensor further agree that TTL shall
receive a cash payment at the rate of 10% of the cash
payment per unit sold or $2,200 for a total cash
payment of $5,500,000 and that such cash payment
shall represent full payment for the rights granted
under this Agreement. Such payments to TTL shall be
made simultanenous with the closing of each of the
2,500 homes by wire transfer or certified check.
c. The Licensee shall require such purchaser of Licensed subject matter to
enter a separate agreement relating to an on-going royalty for the use of
materials resulting from the operation of said Licensed subject matter.
The Company reserves the right to charge or
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waive any such royalty payments on a case by case basis. Any such separate
agreement, if made, shall further include a schedule of reports and
payments relating to any royalty payments due the Licensor.
6. Improvements
a. As of the effective date of this Agreement, LICENSEE acknowledges that the
exclusive ownership of the initially Licensed subject matter is in
LICENSOR and not at all in LICENSEE.
b. Any new composition, design, product, or service conducive to third party
competition with Licensed Product or Licensed Services or Licensed
Systems, invented or otherwise coming under the control of either party
during the License Term, is deemed an "Improvement"--and such party will
disclose the same to the other party promptly and in enough detail to
enable the other party to elect whether to have such Improvement included
hereunder.
c. The Licensee acknowledges that all Licensed subject matter is the property
the Licensor and not at all the Licensee. As to any such Improvement by
either party, such Improvement shall also become the property of the
Licensee and shall be subject to the terms and conditions herein as if
such improvement were part of the original Licensed subject matter.
7. Assurances
a. LICENSOR warrants ownership or legal rights to the Licensed subject matter
in the specific sense that LICENSOR has no reason to believe that any
third party has any right to prevent either LICENSOR or LICENSEE from
practicing any of the Licensed subject matter as provided in this
Agreement, but LICENSOR cannot and does not warrant such practice or usage
as non-infringing of third-party rights.
b. LICENSOR will have no liability whatever to LICENSEE for LICENSEE's
actions or inactions under this Agreement, and LICENSEE will save LICENSOR
harmless against any liability to third parties whether based upon agency,
contract, negligence, product liability, or other basis-for any claim
based on action or inaction of LICENSEE relating to Licensed subject
matter.
c. Licensor has disclosed to Licensee prior contractual relations concerning
the joint venture between the Company and Arbaje Agroindustrial S.A. to
construct and operate AquaFuel production plants and AquaFuel electric
power generation facilities in the Dominican Republic. Licensee
acknowledges they have read and fully understand the rights, limitations
and nature of the AquaFuel-Dominicana joint-venture and that nothing
contained herein shall impede or obviate the rights granted such
joint-venture.
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a. This Agreement may only be cancelled for cause in the event Licensee is
found derelict in the performance of this Agreement through gross
negligence or other similar factors.
b. Upon termination, LICENSEE will refrain from exercising thereafter any
right it had by license hereunder.
c. Whenever LICENSEE is not in good standing hereunder such as failure to
remit payments arising from separate royalty agreements, if any, as
described herein before, LICENSOR may render LICENSEE's license wholly
non-exclusive, or if it is already non-exclusive for a prior breach or
default LICENSOR may terminate LICENSEE's rights hereunder, in the absence
of specific curative provisions for LICENSEE's breach or default, or if
LICENSEE has had an opportunity to comply such a curative provisions and
failed or refused to do so.
d. If either party becomes, or would become, disabled-as by the other party's
choosing, or being subjected to, an act or a procedure for relief of
debtors from enforcing compliance with a given executory obligation of the
other party hereunder (e.g., compliance with standards, action with regard
to infringers, offer of Improvements) the thus disabled party may deem
this Agreement and the license and other rights under this Agreement
terminated.
e. No inaction or overlooking by LICENSOR of any condition or provision of
this Agreement or of any breach or default thereof by LICENSEE shall be
deemed to imply or to constitute a future waiver of any similar breach or
default of the same or other condition/provision.
9. Miscellaneous
a. If any one or more provision(s) or effect(s) of this Agreement should
prove to be invalid or unenforceable, and the Agreement be otherwise valid
and enforceable, the invalid or unenforceable provision or portion thereof
will be severed, and the remainder of the Agreement be and remain valid
and enforceable to the fullest extent permitted by applicable law.
b. This License Agreement is made for the benefit of the parties, their
heirs, successors, and assigns, and any other person or legal entity named
in any provision hereof, and not made to give any unnamed person or legal
entity any right of action whatever.
c. Each statement made in this Agreement is deemed material, and each party
is entitled to rely, and deemed to have relied, upon the truth and
correctness thereof in entering into this Agreement.
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d. Each party acknowledges that he(it) has received advice of independent
counsel of choice as to the inducements, provisions, and terms of this
Agreement, and their effect, whereupon entering into this License
Agreement is each party's free and independent act.
e. This Agreement is to be governed by United States Federal law to whatever
extent a proprietary right granted by the United States is involved, and
otherwise by Florida law, except as activities of a party in any other
State render that other State's law applicable.
f. Notice to be given under this Agreement will be in writing and be
addressed to the other party at the address of such party hereinabove,
unless such address has been superseded by like notice, whereupon the
latest noticed address thereof is to be used. Notice will be effective
when delivered to the addressee, or-if not a change of address-when sent
by Express or Registered Mail so addressed.
g. This Agreement sets forth the entire intent and understanding of the
parties with regard to the subject matter hereof, and merges any prior
negotiations or agreements by the parties as to such subject matter, and
no addition, deletion, or other modification of the wording hereof may be
made except in writing subsequent hereto and signed by the party or
parties to be bound thereby.
IN WITNESS WHEREOF the parties have caused this Agreement to be signed,
sealed, and attested by persons duly authorized so to do, as of the date first
stated hereinabove.
LICENSOR LICENSEE
/s/ Xxxx Xxxxx /s/ C. Xxxxxx Xxxxxx
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Xxxx Xxxxx, President C. Xxxxxx Xxxxxx, Presidente
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