EXHIBIT 6.26
LICENSE AGREEMENT
(NURESCELL, INC. / NURESCELL AG)
THIS LICENSE AGREEMENT (this "Agreement") Is entered into as of August
15, 2000 by and between NURESCELL, INC., a Nevada corporation
("Licensor")("USA"), and NURESCELL AG, an entity formed under the laws of the
Federal Republic of Germany ("Licensee") ("AG").
1. BACKGROUND FACTS
1.1 Licensor is the owner of certain intellectual property and has filed
for certain patents pending in the field of radiation shielding and
encapsulation, hereinafter referred to as the "Technology" or "Licensed
Technology". A description of the Technology is annexed hereto as
Exhibit 1. Licensee is an entity which is interested in the
commercialization and marketing of said Technology in Europe, the
British Isles and the countries of the former Soviet Union. Annexed
hereto and incorporated herein by reference as Exhibit 2 is the
identification of each specific country to which said license will
apply. It is contemplated, pursuant to certain related agreements,
including the Investment Agreement, that initially Licensor shall own
fifty-one percent (51%) of Licensee and Advanced Technology Industries,
Inc., a Delaware corporation (ATI), shall own forty-nine percent (49%)
of Licensee.
2. TERM OF AGREEMENT
2.1 This Agreement shall commence as of the effective date set forth herein
and shall continue in full force and effect, unless otherwise
terminated pursuant to this Agreement on August 15, 2020, or the
expiration of the patent(s) which have been applied for at the United
States Patent Office, pursuant to Patent Application Number 09/187641,
which ever shall later occur.
3. GRANT OF LICENSE
3.1 Licensor, pursuant to this Agreement hereby grants to Licensee a
license to use any and all of the Licensed Technology for the purpose
of marketing and commercializing said Technology in the geographic area
described in Exhibit 2 thereof. All said funds required under this
Agreement shall be paid by wire transfer per written instructions of
Licensor. Said license shall be exclusive, except as provided in
paragraph 6 hereof, and may not be assigned, hypothecated, transferred
or sold in any way, except by prior written consent of Licensor.
3.2 Right to Sublicense. The Licensee shall have the right to grant
sublicenses within the geographic area identified in Exhibit 2 hereof,
provided that it receives prior written consent of Licensor.
3.3 Certain License Obligations. Licensee shall in good faith exercise its
best efforts to commercially market said technology in the geographical
areas described herein and shall cooperate with Licensor in any agreed
upon joint efforts. The parties acknowledge that the Licensed
Technology and the good will associated therewith has great value and,
therefore, Licensee agrees not to take any action that will diminish
the value of said Technology.
3.4 Ownership of Licensed Technology. All Licensed Technology and the
goodwill associated therewith is and shall remain the sole and
exclusive property of Licensor. Licensee shall not directly or
indirectly obtain or attempt to obtain during the term of this
Agreement or at any time thereafter, any right title, or interest in
and to any of the Licensed Technology or in the goodwill associated
therewith. Licensee shall not take any actions which will use or
utilize said Licensed Technology in any manner which could jeopardize,
limit, impair or interfere in any manner with Licensor's ownership and
the right to use and exploit said Licensed Technology or the goodwill
associated therewith or depreciate the value thereof.
4. CONSIDERATION
4.1 Upon execution of this Agreement and, thereafter, on or before the end
of each quarter of a 12 month period commencing August 15, 2000,
Licensee shall pay to Licensor the sum of $250,000.00 for a total of
$1,000,000.00 (License Fee); provided, however, ATI shall be entitled
to a credit equal to 51% of the sums advanced by it related to the
formation of AG, including reasonable legal fees and costs incurred for
any private placement benefitting Licensor. To the extent that any
installment or portion thereof of the License Fee is not paid timely,
then in that event, the share ownership by ATI of AG shall be reduced
in proportion to the amount not paid on the basis that $1 million
equals 100% of ATI's interest. By way of example, if only one half of
the License Fee was paid, ATI's interest in AG would be reduced by
fifty percent (50%). 4.2
Notwithstanding paragraph 4.1, should Licensee raise the minimum of
$4,000,000 (equivalent to DM8.2 million) through the sale of AG stock or
otherwise prior to the expiration of the 12 month period referred to in 4.1,
then in that event, the balance of the license fee of $1,000,000 shall be paid
forthwith by AG to USA.
5. WARRANTIES AND COVENANTS
5.1 Licensor and Licensee hereby represent, warrant and acknowledge the
following:
5.2 (i) Licensee has the right, power and authority to enter into this
Agreement and to perform all of its obligations hereunder.
5.3 (ii) Licensor has the right, power and authority to enter into this
Agreement and to perform all of its obligations hereunder.
5.4 (iii) Licensee has been duly formed and is in compliance with all of
the rules and regulations of the Federal Republic of Germany.
6. TERMINATION
6.1 EFFECT ON RIGHTS. Termination of this Agreement shall not act as a
waiver of any prior breaches of this Agreement and shall not act as a
release of either party from any liability for prior breaches of this
Agreement.
6.2 PROHIBITION ON FURTHER USE. As soon as reasonably practicable,
following the termination of this Agreement, Licensee shall discontinue
the commercialization, distribution and use of said Licensed
Technology.
6.3 SURVIVAL OF PROVISIONS. Said license may be terminated by Licensor for
cause. Cause shall include:
a. Violation of a material element of this Agreement;
b. Failure to pay the license fee set forth in paragraph 4.1
hereof;
c. Insolvency of Licensee; and
d. Failure of Licensee to deliver shares of stock of NURESCELL AG
to Licensor under the Investment Agreement.
7. INDEMNIFICATION
7.1. LICENSOR. Licensor shall defend (with counsel reasonably satisfactory
to Licensee), indemnify, protect and hold harmless Licensee, its
agents, officers, directors and shareholders, and each of them, of and
from any and all claims, suits, demands, causes of action, judgments,
liabilities, losses, costs and expenses (including, without limitation,
actual attorneys' fees and disbursements and court costs) that arise
out of or are in connection with (i) the breach of any of Licensor's
warranties and representations herein contained, (ii) the breach by
Licensor of any of its other obligations under this Agreement and (iii)
any claim by a third party alleging that Licensee's use of the Licensed
Technology violates such third party's intellectual property rights or
any patent that may otherwise exist. Any of the indemnified parties
herein named may waive their respective rights of defense, in which
case, notwithstanding anything to the contrary in this Agreement,
Licensor shall not be responsible for the costs or expenses of any such
waiving party's defense. Any costs incurred by any of the indemnified
parties which are the responsibility of Licensor to the party incurring
such expense, or, alternatively, at Licensee's election, may be
deducted by Licensee from any amounts owed to Licensor under this
Agreement. Notwithstanding the foregoing, neither an indemnified party
hereinabove set forth nor Licensor may settle or compromise any claim,
suit, etc. arising under this section without the written consent of
the other; provided, however, that such consent shall not be
unreasonably withheld.
7.2. Notwithstanding anything to the contrary, this Indemnification
Agreement may be modified or waived by prior written consent of the
indemnity.
7.3. LICENSEE. Licensee shall defend (with counsel reasonably satisfactory
to Licensor), indemnify, protect and hold harmless Licensor, its
agents, officers, directors and shareholders, and each of them, of and
from any and all claims, suits, demands, causes of action, judgments,
liabilities, losses, costs and expenses (including, without limitation,
actual attorneys' fees and disbursements and court costs) that arise
out of or are in connection with (i) the breach of any of Licensee's
warranties and representations herein contained, and (ii) the breach by
Licensee of any of its other obligations under this Agreement. Any of
the indemnified parties herein named may waive their respective rights
of defense, in which case, notwithstanding anything to the contrary in
this Agreement, Licensee shall not be responsible for the costs or
expenses of any such waiving party's defense. Any costs incurred by any
of the indemnified parties which are the responsibility of Licensee to
the party incurring such expense, or, alternatively, at Licensor's
election, may be deducted by Licensor from any amounts owed to Licensee
under this Agreement. Notwithstanding the foregoing, neither an
indemnified party hereinabove set forth nor Licensee may settle or
compromise any claim, suit, etc. arising under this section without the
written consent of the other; provided, however, that such consent
shall not be unreasonably withheld.
7.4. Notwithstanding anything to the contrary, this Indemnification
Agreement may be modified or waived by prior written consent of the
indemnity.
8. NOTICES
8.1. MEANS OF NOTICES. All notices, demands or requests provided for or
permitted to be given pursuant to this Agreement must be in writing.
All notices, demands and requests to be sent to any party shall be
deemed to have been properly given or served by personally delivering
the same, by sending the same by facsimile, or by sending the same
prepaid by a commercial courier (such as Federal Express) or by
depositing the same with the United States Postal Service, designated
as registered or certified mail with return receipt requested, bearing
adequate postage and addressed to such party at the following:
As to Licensor: NURESCELL, Inc.
0000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
with a copy to: Herzog, Fisher, Xxxxxxx & Xxxxx
0000 Xxxxxxxx Xxxx., 0xx Xxxxx
Xxx Xxxxxxx, XX 00000
Facsimile: 000-000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
As to Licensee: NURESCELL AG
_________________________________________
_________________________________________
Attention: ______________________________
Facsimile: ______________________________
with a copy to: _________________________________________
_________________________________________
_________________________________________
8.2 EFFECTIVE DATE OF NOTICES. All notices, demands and requests given in
the manner specified in Section 8 above shall be effective (i) upon
receipt in the case of personal delivery or commercial courier, (ii)
upon confirmation of delivery, in the case of delivery by facsimile,
and (iii) two (2) days following deposit with the United States Postal
Service in the case of mailing within the United States. Rejection or
other refusal to accept, or the inability to deliver because of changed
address of which no notice was given, shall be deemed to be receipt of
the notice, demand or request sent.
8.3 CHANGE OF ADDRESS. By giving to the other party at least ten (10) days
written notice thereof, each party and its respective successors and
assigns shall have the right from time to time and at anytime during
the term of this Agreement to change its address and each shall have
the right to specify as its address for notices or any other address
within or without the United States of America.
9. MISCELLANEOUS
9.1. GOVERNING LAWS: WAIVER JURY. This Agreement and the obligations of the
parties hereunder shall be interpreted, construed and enforced in
accordance with the internal laws of the State of California. In the
event of legal proceedings, the parties hereby knowingly, voluntarily
and intentionally WAIVE THE RIGHT EITHER OF THEM OR THEIR HEIRS,
REPRESENTATIVES, SUCCESSORS OR ASSIGNS MAY HAVE TO A TRIAL BY JURY WITH
RESPECT TO ANY LITIGATION ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS AGREEMENT OR ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN
CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, DEALING, STATEMENTS OR
ACTIONS OF EITHER PARTY. EACH OF THE PARTIES CONSENT TO THE
JURISDICTION AND VENUE OF THE UNITED STATES DISTRICT COURT FOR THE
CENTRAL DISTRICT OF CALIFORNIA.
9.2. ENTIRE AGREEMENT. This Agreement and the Investment Agreement referred
to herein contain the entire agreement between the parties hereto with
respect to the subject matter hereof. No variations from, modifications
of, amendments to or changes in this Agreement shall be binding upon
any party hereto unless set forth in a document duly executed by or on
behalf of such party.
9.3. SEVERABILITY. If any provision of this Agreement or the application
thereof to any Person or circumstance shall be invalid or unenforceable
to any extent the remainder of this Agreement and the application of
such provisions to other Persons or circumstances shall not be affected
thereby and shall be enforced to the greatest extent permitted by law.
9.4. ATTORNEY FEES. If any litigation arises between the parties concerning
this Agreement or its enforcement the prevailing party in such
litigation shall be entitled to collect in such action from the
non-prevailing party all costs of such litigation, including reasonable
attorney fees at all levels of proceedings.
9.5. NO THIRD PARTY BENEFICIARIES. This Agreement is intended for the
benefit of the parties hereto and their respective permitted successors
and assigns, and is not for the benefit of, nor may any provision
hereof be enforced by, any other person.
9.6. PUBLICITY. Each of the parties shall have the right to review before
issuance the other's press releases, or any other public statements,
with respect to the transactions contemplated hereby; provided,
however, each of the companies shall be entitled, without prior
consultation with or approval of the other, to make any press release
or other public disclosure with respect to transactions as is required
by applicable laws and regulations of the jurisdictions of the United
States of America and/or the Federal Republic of Germany.
9.7. FURTHER ASSURANCE. Each party shall do and perform, or cause to be done
and performed, all such further acts and things, and shall execute and
deliver all such other agreements, certificates, instruments and
documents, as the other party may reasonably request in order to carry
out the intent and to accomplish the purposes of this Agreement and the
consummation of the transactions contemplated hereby.
9.8. REMEDIES. No provision of this Agreement providing for any specific
remedy to a party shall be construed to limit such party to the
specific remedy described, and any other remedy that would otherwise be
available to such party at law or in equity shall also be available.
9.9. COUNTERPARTS; EXECUTION BY FACSIMILE. This Agreement and/or any
amendments to this Agreement may be executed 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. Any
signature transmitted via facsimile shall be deemed an original
signature for all purposes.
IN WITNESS WHEREOF, the parties hereto have executed this License
Agreement effective as of the day and year first written above.
"Licensor" "Licensee"
NURESCELL, INC. NURESCELL AG
a Nevada corporation An entity formed under the laws of the
Federal Republic of Germany
By: _______________________________ By: _______________________________
Its: ______________________________ Its: ______________________________
EXHIBIT 1
DESCRIPTION OF LICENSED TECHNOLOGY
The invention provides a novel material for shielding and internment of
radioactive materials, radioactive waste as well as providing attenuation of
x-ray energy. The material demonstrates shielding and physical properties
superior to commonly used shielding materials such as concrete, steel or, in
some cases, lead. The material may be compounded in such a way as to be used
either in solid form or as a viscous liquid for specialized applications. The
compound may include such materials as polyester epoxy, powdered metals, a
coloring agent and poly styrenes in various combinations and ratios. Said
invention is more particularly described in United States Patent Application No.
09/187641.
Licensor shall provide to Licensee a copy of the patent, when issued,
and shall also provide Licensee with a letter from Licensor's patent counsel
setting forth the status of the patent application.
EXHIBIT 2
DESCRIPTION OF GEOGRAPHIC AREA
SUBJECT TO THE LICENSE AGREEMENT
1. Countries of the former Soviet Union
2. Countries located on the Continent of Europe
3. England and the British Isles
