AGREEMENT
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THIS AGREEMENT is made as of this 5th day of February, 1996, by and
among OLYMPIC INDUSTRIES, INC. ("Olympic"), XXXXXXX X. XXXXXX ("Xxxxxx"), ETS
LINER, INC. ("ETS") and ULTRALINER, INC. ("Ultraliner"), provides
W I T N E S S E T H :
WHEREAS, Xxxxxx and Ultraliner are parties to a Contractor License
Agreement dated July 12, 1995 (the "License Agreement"), pursuant to which
Ultraliner granted Xxxxxx a license to use the Ultraliner PVC Alloy (Trade
Xxxx) Pipeliner System in the Territory (as defined in the License
Agreement);
WHEREAS, ETS, Xxxxxx and Olympic have entered into an Asset Purchase
Agreement of even date herewith pursuant to which ETS is purchasing
substantially all of the assets of Xxxxxx and Olympic that are used or useful
in the business of Pipe-Liner Installers;
WHEREAS, a condition of Closing of the Asset Purchase Agreement is the
transfer of the License Agreement to ETS and the consent of Ultraliner to
such transfer;
WHEREAS, Ultraliner is willing to consent to the transfer provided ETS
agrees to be bound by the terms of the License Agreement; and
WHEREAS, Xxxxxx desires to obtain the right to reacquire the License
Agreement without paying a transfer fee in the event Ultraliner terminates
the License Agreement with ETS and Ultraliner is willing to give Xxxxxx the
right to reacquire the License Agreement in the event of such termination
upon conditions herein stated.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Transfer of License Agreement. Olympic and Xxxxxx do hereby
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assign, convey and transfer to ETS, subject to the Closing of the Asset
Purchase Agreement and effective as of the Closing Date, all of its right,
title and interest in and to the License Agreement.
2. Assumption of License Agreement. ETS does hereby accept, subject
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to the Closing of the Asset Purchase Agreement and effective as of the
Closing Date, such assignment and transfer and agrees to perform and
discharge the duties and obligations of Xxxxxx and Olympic under the License
Agreement for the remainder of the term, and any renewals thereof.
3. Consent of Ultraliner. Ultraliner hereby consents to the
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assignment and transfer set forth above.
4. Retransfer Upon Termination. In the event of termination of the
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License Agreement by Ultraliner or ETS after the Closing Date (as defined in
the Asset Purchase Agreement), Ultraliner grants to Xxxxxx a right of first
refusal to assume the License Agreement without any transfer fee. As a
condition to such assumption, Xxxxxx agrees to pay Ultraliner any past due
license fees at the time of retransfer and all other license fees as they
become due. Ultraliner agrees to provide Xxxxxx written notice of any
default and termination. In the event of termination Xxxxxx shall have 30
days to exercise his right of first refusal. Such notice shall be sent to
Xxxxxx at the address set out below his signature at the foot of this
agreement. Xxxxxx shall exercise such right of first refusal by providing
Ultraliner with written notice thereof within said thirty day period. Such
notice shall be sent to Ultraliner at the address set out below the signature
at the foot of this agreement of its authorized representative. In the event
Xxxxxx exercises his right of first refusal, ETS agrees to assign, convey and
transfer all of its rights and interest to Xxxxxx. This option is limited in
time to twenty-four months from the date of this agreement, and is
conditioned upon Xxxxxx meeting all qualifications of a licensee, as of the
date the option is exercised.
5. Closing. In the event that the Closing does not occur, this
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Agreement shall be null and void and of no force and effect.
6. Condition Precedent. Ultraliner's consent to the transfer
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provided for herein is conditioned upon the execution and delivery by ETS of
the CONTRACTOR LICENSE AGREEMENT between it and Ultraliner dated as of
September 14, 1995.
WITNESS the following signatures as of the date first above written.
OLYMPIC INDUSTRIES, INC.
BY: s/X. X. Xxxxxx
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ITS President
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s/Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
ADDRESS: Box 770
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Xxxx Xxxx, XX. 00000
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ETS LINER, INC.
BY: s/Xxxx X. XxXxxxx
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ITS CEO
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ULTRALINER, INC.
BY: s/Xxxxxx X. Xxxxxxx, President
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ITS
ADDRESS: XXXX XXXXXX XXXXXX 0000
XXXXXX XX 00000
