EXCLUSIVE LICENSING AGREEMENT OF US PATENT APPLICATION 10/284,748
------------------------------------------------------------------
Between Aquentium, Inc. And Xx. Xxxxxx
THE SECURITIES WHICH ARE THE SUBJECT OF THIS AGREEMENT HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "1933 ACT"), NOR REGISTERED
UNDER ANY STATE SECURITIES LAW, AND ARE "RESTRICTED SECURITIES" AS THAT TERM
IS DEFINED IN RULE 144 UNDER THE 1933 ACT. THE SECURITIES MAY NOT BE OFFERED
FOR SALE, SOLD OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE 1933 ACT, OR PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE 1933 ACT, THE AVAILABILITY OF WHICH IS TO BE
ESTABLISHED TO THE SATISFACTION OF THE COMPANY.
This EXCLUSIVE LICENSING AGREEMENT is made this 5th day of November,
2004, by and among Aquentium, Inc., a Delaware corporation, (the "Issuer" or
the "Company"), and Xxxxxxxx Xxxxxx Xxxxxx Xxxxxx ("TC"), a citizen of the
United States of America and resident of the State of Florida.
In consideration of the mutual promises, covenants, and representations
contained herein, and other good and valuable consideration, THE PARTIES
HERETO AGREE AS FOLLOWS:
1. EXCHANGE OF SECURITIES
----------------------
Subject to the terms and conditions of this Agreement, the Issuer agrees
to issue to TC, two hundred thousand (200,000) restricted shares, as a
non-refundable exchange for the exclusive worldwide manufacturing and
marketing rights of a patent pending containerized habitable structure as
granted by the United States Patent & Trademark Office (USPTO); United States
Patent Application 10/284,748 and deviations thereof. Should the patent not be
granted, then Issuer has the right to cancel the two hundred thousand
(200,000) shares issued to TC.
TC grants to Issuer:
a. Exclusive global licensing rights for current and future
inventions, evolutions, concepts, ideas, materials, plans, leads
and contacts as pertaining to the above pending patent.
b. Exclusive global licensing rights for use of products' trade names
as pertaining to the above pending patent.
c. Exclusive global licensing rights for use of management, marketing
systems, concepts, plans and materials as pertaining to the above
pending patent.
d. Exclusive global licensing rights for use of all trademarks and
copyrights as pertaining to the above pending patent.
e. Exclusive global licensing rights for use of Website URL and
content as pertaining to the above pending patent.
f. All future developments of products, trademarks, copyrights,
patents and other intellectual property pertaining to the original
pending patent; of which, TC shall be the exclusive owner with an
automatic and simultaneous exclusive global licensing right for
use granted to Issuer. Patents and certain other intellectual
property shall be negotiated for fee and use on a case by case
basis.
Upon completion of this transaction, the Issuer will form a subsidiary
company ("New Company") with a name that is mutually agreed by both parties.
This subsidiary will be the entity that markets and manufactures under this
licensing agreement.
2. ROYALTY DISTRIBUTIONS
---------------------
Issuer represents and warrants to TC:
a. To make Royalty payments according to the schedule in 2-h below.
Issuer's Initials Page 1 of 8 TC's Initials
EXCLUSIVE LICENSING AGREEMENT OF US PATENT APPLICATION 10/284,748
------------------------------------------------------------------
Between Aquentium, Inc. And Xx. Xxxxxx
b. Royalties are paid on all units produced excluding any units that
are specifically designated, properly marked and used as samples,
R & D, prototypes or donations.
c. Royalty payments are based on the following lifetime production
schedule and production totals are cumulative over the lifetime
production of the units:
Royalty per Unit Lifetime Unit Production
--------------------------------------------------------
$1,000 1 to 250,000
750 250,001 to 500,000
500 over 500,000
d. Royalties are due and payable in US dollars, for the life of the
license agreement.
e. Units are described as items covered under this agreement include
United States Patent Application number: 10/284,748, Title:
Containerized habitable structures, Description: Patent Pending of
an expandable ISO containerized systems and structures for
emergency, disaster relief or permanent applications world wide,
and U.S. Provisional Patent Application number 60/236,188;
including all foreign patents that are or will be filled; and any
derivatives thereof.
f. The right to audit the company's relevant books and records and to
physically inspect any facility of the company; including work
papers, through the use of independent auditors or personally at
any pre-arranged time. If the royalties actually reported for the
period of the audit are under paid by five (5%) percent of the
royalties determined payable by the audit, the company shall pay
for the entire costs of performing the audit including the
accountant's professional fees plus unpaid royalties with maximum
interest.
g. Annual accounting (October 1 to September 30) shall be completed,
unless waived in writing by both parties.
h. Schedule of Royalty Payments:
Production Period Payment Date
----------------------------------------------
January 1 to March 31 April 30
April 1 to June 30 July 31
July 1 to September 30 October 31
October 1 to December 31 January 31
i. Company shall keep royalty related documents and records for three
(3) years after payment, for future audits, if needed, including a
master production log and distribution logs showing the unit's
disposition (sold, donated, samples, R & D, etc.). All units shall
have a unique serial number.
j. Royalty shall be fully assignable including all rights therewith
in whole or in part.
3. PERFORMANCE REQUIREMENTS
-------------------------
a. Issuer represents and warrants to TC:
i. To fully comply with all the provisions as outlined in "Royalty
Distributions" section above.
ii. That two (2) prototype model units will be funded within twelve
(12) months from the date of this agreement, approximately
thirty thousand ($30,000) US dollars each.
iii. Using its best efforts, will raise and make available funds for
the setup and equipping of an initial manufacturing facility to
be located in the USA, within twenty four (24) months from the
date of this agreement. TC to guide Issuer, as to where, and
the amounts and timing of the required funds.
iv. Production minimum of thirty (30) units per quarter starting
ninety (90) days after manufacturing facility is completed and
all manufacturing materials and components are in place.
Issuer's Initials Page 2 of 8 TC's Initials
EXCLUSIVE LICENSING AGREEMENT OF US PATENT APPLICATION 10/284,748
------------------------------------------------------------------
Between Aquentium, Inc. And Xx. Xxxxxx
v. New company shall be setup within thirty (30) days of this
agreement.
vi. Provide the funds as needed for operations, general,
administrative and support of the new company.
vii. TC shall be issued a contract with the new company upon its
creation.
viii. TC shall be issued a Board seat in the new company upon its
creation.
ix. Shall not otherwise engage or do business in the disaster
relief housing industry as a provider of disaster housing or
other disaster structures.
x. Upon the failure of any of the above Performance Requirements,
Issuer hereby:
a. Grants the immediate and absolute rescission of the
"Exclusivity" of this entire License Agreement.
b. To execute the reissuance of a revised license agreement
identical to this original license agreement with the
removal of the word, term or reference to this licensing
agreement as being "Exclusive" to be "Non-Exclusive".
c. TC is released from the non-compete cause in section
7-b-ii.
b. TC represents and warrants to Issuer:
i. To provide all contact and authorizations as needed in regards
to the Patent Law Firm as soon as possible.
ii. Construct two (2) prototype model units in a timely manner
upon Issuer providing the necessary funding.
iii. Setup, train and make operational a manufacturing facility in
a timely manner, upon Issuer providing the necessary funding.
iv. Shall not otherwise engage or do business in the disaster
relief housing industry as a provider of disaster housing or
other disaster structures.
v. Upon the full completion and compliance of Issuer's
Performance Requirements, in section 3-a, TC shall list Issuer
as the co-assignee of the pending patent with the USPTO.
4. REPRESENTATIONS AND WARRANTIES
------------------------------
a. Issuer represents and warrants to TC:
i. Organization
------------
Issuer is a corporation duly organized, validly existing, and
in good standing under the laws of Delaware, and has all necessary
corporate powers to own properties and carry on a business, and is
duly qualified to do business and is in good standing in Delaware.
All actions taken by the Incorporators, directors and shareholders
of Issuer have been valid and in accordance with the laws of the
State of Delaware.
ii. Capital Stock
-------------
The authorized capital stock of Issuer consists of one hundred
million (100,000,000) shares of which, at closing, there will be
two hundred thousand (200,000) restricted shares issued to TC in
exchange for the exclusive licensing rights for worldwide
manufacturing and marketing of the pending patent containerized
habitable structure as granted by the USPTO; United States Patent
Application 10/284,748. All of the shareholders of Issuer have
valid title to such shares and acquired their shares in a lawful
transaction and in accordance with the laws of the State of
Delaware.
iii. Pink Sheet Listing
-------------------
The Company is a reporting company with the Securities &
Exchange Commission that is current with its quarterly filings.
The company is listed for trading on the National Quotation Bureau
Electronic Pink Sheets with the following trading symbol: AQNM. The
company recently filed its audited statement ending June 30, 2004
and will be required to submit an audited statement for all future
SEC quarterly and annual filings.
Issuer's Initials Page 4 of 8 TC's Initials
EXCLUSIVE LICENSING AGREEMENT OF US PATENT APPLICATION 10/284,748
------------------------------------------------------------------
Between Aquentium, Inc. And Xx. Xxxxxx
iv. Assets and Liabilities
----------------------
Issuer does not have any debt, liability, or obligation of any
nature, whether accrued, absolute, contingent, or otherwise, and
whether due or to become due, that is not reflected on the Issuer's
financial statement. Issuer is not aware of any pending, threatened
or asserted claims, lawsuits or contingencies involving Issuer or
its common stock. There is no dispute of any kind between Issuer
and any third party, and no such dispute will exist at the closing
of this Agreement. At closing, Issuer will be free from any and all
liabilities, liens, claims and/or commitments. Upon the Issuer or
the new company seeking bankruptcy, this license agreement shall
terminate immediately and be effective on the same day as the
initial bankruptcy filling.
v. Ability to Carry Out Obligations
--------------------------------
Issuer has the right, power, and authority to enter into and
perform its obligations under this Agreement. The execution and
delivery of this Agreement by Issuer and the performance by Issuer
of its obligations hereunder will not cause, constitute, or
conflict with or result in:
a. Any breach or violation or any of the provisions of or
constitute a default under any license, indenture, mortgage,
charter, instrument, articles of incorporation, bylaw, or other
agreement or instrument to which Issuer or its shareholders are
a party, or by which they may be bound, nor will any consents
or authorizations of any party other than those hereto be
required; or
b. An event that would cause Issuer to be liable to any party; or
c. An event that would result in the creation or imposition or any
lien, charge or encumbrance on any asset of Issuer or upon the
securities of Issuer to be acquired hereby.
vi. Full Disclosure
---------------
None of the representations and warranties made by the Issuer,
or in any certificate or memorandum furnished or to be furnished by
the Issuer, contains or will contain any untrue statement of a
material fact, or omit any material fact the omission of which
would be misleading.
vii. Compliance with Laws
--------------------
To the best of its knowledge, Issuer has complied with, and is
not in violation of any federal, state, or local statute, law,
and/or regulation.
viii. Litigation
----------
Issuer is not (and has not been) a party to any suit, action,
arbitration, or legal, administrative, or other proceeding, or
pending governmental investigation. To the best knowledge of the
Issuer, there is no basis for any such action or proceeding and no
such action or proceeding is threatened against Issuer and Issuer
is not subject to or in default with respect to any order, writ,
injunction, or decree of any federal, state, local, or foreign
court, department, agency, or instrumentality.
Issuer's Initials Page 4 of 8 TC's Initials
EXCLUSIVE LICENSING AGREEMENT OF US PATENT APPLICATION 10/284,748
------------------------------------------------------------------
Between Aquentium, Inc. And Xx. Xxxxxx
ix. Conduct of Business
-------------------
Prior to the closing, Issuer shall conduct its business in the
normal course, and shall not:
a. Sell, pledge, or assign any assets; or
b. Amend its Articles of Incorporation or By-Laws.
x. Corporate Documents
-------------------
Copies of each of the following documents, which are true
complete and correct in all material respects, will be attached to
and made a part of this Agreement:
a. Articles of Incorporation;
b. By-Laws;
xi. Documents
---------
All minutes, consents or other documents pertaining to Issuer
to be delivered at closing shall be valid and in accordance with
the laws of the State of Delaware.
xii. Title
-----
The Shares to be issued pursuant to this Agreement will be, at
closing, free and clear of all liens, security interests, pledges,
charges, claims, and encumbrances, but will have a restriction from
trading for two (2) years. None of the Shares are or will be
subject to any voting trust or agreement. No person holds or has
the right to receive any proxy or similar instrument with respect
to such shares, except as provided in this Agreement, the Issuer is
not a party to any agreement which offers or grants to any person
the right to purchase or acquire any of the securities to be issued
pursuant to this Agreement. There is no applicable local, state or
federal law, rule, regulation, or decree which would, as a result
of the issuance of the Shares, impair, restrict or delay any voting
rights with respect to the Shares.
b. TC represents and warrants to Issuer the following:
i. Organization
------------
TC is an individual with an address of 0000 Xxxx Xxxx Xxxxx,
Xxxxxxxx, Xxxxxxx 00000 XXX. TC is of sound mind to carry on a
business, and is duly qualified to do business in the United
States.
ii. Assets
------
TC represents and warrants he is exclusively licensing all
marketing and manufacturing rights to the pending patent
application 10/284,748, and is exclusively licensing the URL
xxx.xxxxxxxxxxxxxx.xxx. Also, all future developments of products,
trademarks, copyrights, patents and other intellectual property
pertaining to the original pending patent; of which, TC shall be
the exclusive owner with an automatic and simultaneous exclusive
global licensing right for use granted to Issuer. Patents and
certain other intellectual property shall be negotiated for fee and
use on a case by case basis.
iii. Liabilities
-----------
TC represent and warrant that it is not aware of any pending,
threatened or asserted claims, lawsuits or contingencies involving
TC and the rights to manufacture and market product in reference to
pending patent application 10/284,748. There is no dispute of any
kind between TC and any third party, and no such dispute will exist
at the closing of this Agreement regarding pending patent
application 10/284,748. At closing, TC will be free from any and
all liabilities, liens, claims and/or commitments excluding the
pending patent's legal fees therewith. Issuer assumes all future
fees and expenses of the pending patent as of the date of this
agreement.
Issuer's Initials 5 of 8 TC's Initials
EXCLUSIVE LICENSING AGREEMENT OF US PATENT APPLICATION 10/284,748
------------------------------------------------------------------
Between Aquentium, Inc. And Xx. Xxxxxx
iv. Counsel
-------
TC represents and warrants that prior to closing, it has been
represented by independent counsel.
5. INVESTMENT INTENT
-----------------
TC is acquiring the Shares for his own account for purposes of
investment and without expectation, desire, or need for resale and not with
the view toward distribution, resale, subdivision, or fractionalization of the
Shares.
6. CLOSING
-------
The closing of this transaction shall take place at and in a manner
mutually agreed upon by both parties.
7. DOCUMENTS TO BE DELIVERED AT CLOSING
------------------------------------
a. By the Issuer:
i. Board of Directors Minutes authorizing the Acceptance and
Compliance of this Agreement and its Terms and Conditions, per
4-a-xi
ii. Board of Directors Minutes authorizing the Authorized Signer,
per 4-a-xi
iii. Board of Directors Minutes authorizing the issuance of a
certificate or certificates for the Shares to be issued
pursuant to this Agreement, per 4-a-xi
iv. Most recent SEC quarterly filings and audited statements, per
4-a-iii
v. Articles of Incorporation and By-Laws, per 4-a-x
b. By TC:
i. Signed affidavit representing one hundred (100%) percent
complete ownership and control of pending patent application
10/284,748.
ii. Signed agreement not to compete in the disaster relief housing
industry as a provider of disaster housing or other disaster
structures during the currency of this agreement (See section
3-a-x-c).
8. EXCLUSIVE/EXCLUSIVITY
-----------------------
In the event that Issuer fails to fully comply with section 3-a, Issuer
shall forever lose the right to be "Exclusive". Subsequently this licensing
agreement shall have the effect of automatically striking all such "Exclusive"
references herein. No stock, fees, consultant or work contracts or the
likewise shall be affected in any way. Upon the failure of any of the above
Performance Requirements in section 3-a, Issuer hereby:
a. Grants the immediate and absolute rescission of the "Exclusivity"
of this entire License Agreement.
b. To execute the reissuance of a revised license agreement identical
to this original license agreement with the removal of the word,
term or reference to this licensing agreement as being "Exclusive"
to be "Non-Exclusive".
c. TC is released from the non-compete cause in section 7-b-ii.
Issuer's Initials Page 6 of 8 TC's Initials
EXCLUSIVE LICENSING AGREEMENT OF US PATENT APPLICATION 10/284,748
------------------------------------------------------------------
Between Aquentium, Inc. And Xx. Xxxxxx
9. MISCELLANEOUS
-------------
a. Captions and Headings
---------------------
The Article and paragraph headings throughout this Agreement are
for convenience and reference only, and shall in no way be deemed to
define, limit, or add to the meaning of any provision of this
Agreement.
b. No Oral Change
--------------
This Agreement and any provision hereof, may not be waived,
changed, modified, or discharged orally, but only by an agreement in
writing and signed by both parties.
c. Jurisdiction
------------
This Agreement shall be exclusively governed by and construed in
accordance with the laws of the State of Delaware, If any action is
brought among the parties with respect to this Agreement or otherwise,
by way of a claim or counterclaim, the parties agree that in any such
action, and on all issues, the parties irrevocably waive their right to
a trial by a jury. Exclusive jurisdiction and venue for any such action
shall be the State Courts of Delaware. In the event suit or action is
brought by any party under this Agreement to enforce any of its terms,
or in any appeal there from, it is agreed that the prevailing party
shall be entitled to reasonable attorneys fees to be fixed by the
arbitrator, trial court, and/or appellate court.
d. Non Waiver
----------
i. Except as otherwise expressly provided herein, no waiver of
any covenant, condition, or provision of this Agreement shall
be deemed to have been made unless expressly in writing and
signed by both parties; and/or
ii. The failure of any party to insist in any one or more cases
upon the performance of any of the provisions, covenants, or
conditions of this Agreement or to exercise any option herein
contained shall not be construed as a waiver or relinquishment
for the future of any such provisions, covenants, or
conditions; and/or
iii.The acceptance of performance of anything required by this
Agreement to be performed with knowledge of the breach or
failure of a covenant, condition, or provision hereof shall
not be deemed a waiver of such breach or failure; and/or
iv. No waiver by any party of one breach by another party shall be
construed as a waiver with respect to any other or subsequent
breach.
e. Time of Essence
---------------
Time is of the essence of this Agreement and of each and every
provision hereof.
f. Assignment
----------
TC reserves the right to assign this agreement at TC's sole
discretion.
g. Entire Agreement
----------------
This Agreement contains the entire Agreement and understanding
between the parties hereto, and supersedes all prior agreements and
understandings.
h. Counterparts and Copies
-----------------------
This Agreement may be executed simultaneously in one or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. Copies
and/or facsimiles shall have the same effect as the original.
Issuer's Initials Page 7 of 8 TC's Initials
EXCLUSIVE LICENSING AGREEMENT OF US PATENT APPLICATION 10/284,748
------------------------------------------------------------------
Between Aquentium, Inc. And Xx. Xxxxxx
i. Term and Termination
--------------------
This Agreement expires simultaneously with the expiration of the
herein referenced pending patent or any extension or deviation thereof,
whichever is the longest. This Agreement may be mutually terminated at
any time with a six (6) month written notice that is signed and
accepted by both parties. If Issuer initiates the termination, the
stock restriction shall be lifted.
j. Notices
-------
All notices requests, demands, and other communications under this
Agreement shall be in writing and shall be deemed to have been duly
given on the date of service if served personally on the party to whom
notice is to be given, or on the third (3rd) day after mailing if
mailed to the party to whom notice is to be given, by first class mail,
registered or certified, postage prepaid, and properly addressed, or by
facsimile based on the actual date of the facsimile transmission, as
follows:
ISSUER
Aquentium, Inc.
Xxxx Xxxxxxx
00000 Xxxxx Xxxxxx Xxxxxx
Xxxxx Xxxx Xxxxxxx, XX 00000 XXX
Facsimile (000) 000-0000
TC
Xxxxxxxx Xxxxxx Xxxxxx Xxxxxx
0000 Xxxx Xxxx Xxxxx
Xxxxxxxx, XX 00000 XXX
Facsimile (000) 000-0000
IN WITNESS WHEREOF, the undersigned parties have executed this Exclusive
Licensing Agreement on date first indicated above and in the presence of the
respective witnesses.
For Issuer:
/s/ Xxxx Xxxxxxx /s/ Xxxxxxx Xxxxxxx
_______________________________ _____________________________
Xxxx Xxxxxxx, President Xxxxxxx Xxxxxxx, Witness
Aquentium, Inc.
Seal of Aquentium, Inc.
For TC:
/s/ Xxxxxxxx X. Xxxxxx /s/ Xxxxx Xxxxxxxxx
_______________________________________ _____________________________
Xxxxxxxx Xxxxxx Xxxxxx Xxxxxx, Inventor Xxxxx Xxxxxxxxx, Witness
US Patent Application 10/284,748
Page 8 of 8
