EXHIBIT 10(iii)
AGREEMENT
AMONG:
ENOTECH R & D, INC.
ALUMINUM-POWER INC.
TRIMOL GROUP INC
AGGI LIMITED, LLC
and
EONTECH GROUP INC.
File #97034 BAS*clw
Xxxxx X. Xxxxxxx, Q.C.
Xxxxx 0000
000 Xxx Xxxxxx
Xxxxxxx, XX X0X 0X0
THIS AGREEMENT made the `28th day of August 2001
AMONG:
ENOTECH R & D, INC., a corporation
incorporated under the laws of the State,
of Delaware, US.A,
(hereinafter called "R & D")
OF THE FIRST PART;
- and -
ALUMINUM-POWER INC. , a
corporation incorporated under the laws
of the Province of Ontario, Canada
(hereinafter called "A-P)
OF THE SECOND PART;
-and -
TRIMOL GROUP INC., a corporation
incorporated under the laws of the State
of Delaware U.S.A.
(hereinafter called `Trimol")
OF THE THIRD PART;
- and -
AGGI LIMITED. LLC., a limited liability
company established under the laws of
the state of Ohio, U.S.A.
(hereinafter called "AGGI")
ON THE FOURTH PART;
- and -
EONTECH GROUP INC., a corporation
Incorporated under the laws of the
Province of Ontario, Canada
(hereinafter called "Eontech")
OF THE FIFTH PART.
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WHEREAS A-P is the owner of certain technologies and patent rights,
including, without limitation, technologies and patent rights for the creation
of metal-air batteries and fuel cells, including, without limitation,
aluminum-air batteries;
AND WHEREAS Trimol has a License Agreement with A-P providing it with
certain rights regarding the said technologies and patent rights;
AND WHEREAS A-P and Trimol wish to have R & D provide certain research and
development and to assist in creating, designing, producing, manufacturing,
marketing and distributing certain commercial prototypes, products and
production lines for products developed by or for A-P and/or Trimol;
AND WHEREAS AGG1 has agreed to provide to R & D its plant, (at its current
facility) equipment and staff to assist R & D in fulfilling its obligations to
A-P and Trimol in accordance with the terms of this Agreement.
NOW THEREFORE the parties agree as follows:
ARTICLE 1 - DEFINITIONS
1.1 In this Agreement, references to A-P shall include Trimol as their
respective interests may appear or as directed.
1.2 For the purposes of this Agreement, the following definitions shall apply:
(a) "Agreement" means this agreement;
(b) "Confidential Information" includes, but is not limited to, all
intellectual property with respect to aluminum-air batteries (including a
prototype or product), all information with respect to Inventions, Know-How or
Trade Secrets and any and all information relating to A-P's business plans,
products, volume of current or expected business, processes, new product
development, product designs, formulae, technical information, laboratory data
or other material relating to any products, projects or processes of A-P and all
disclosures of information under the terms of this Agreement about the business
and affairs of A-P. Notwithstanding anything set forth in this definition or
Agreement to the contrary, "confidential Information" shall not include
inventions, designs or drawings that do not utilize A-P's Technology or Patents,
but which may be incorporated, related to, or used in connection with A-P's
products, product designs. or prototypes, provided, however, that the disclosure
of such non-confidential information shall not include nor compromise A-P's
Confidential Information.
(c) "Inventions" shall mean all Inventions, improvements, designs drawings,
modifications and enhancements, whether or not patentable, made to the Patents
and/or Technology by any party hereto during the term of this Agreement or after
the termination of this Agreement whether or not Confidential Information is
used; provided,
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however, that products, inventions, or designs incorporated into A-P's products
shall not be considered an invention unless it utilizes A-P's Technology or
Patents;
(d) Know-How" shall mean all documentation, software, hardware, creative
works, know-how and information created, in whole or in part, by A-P, AGGI or R
& D before or during the terms of this Agreement arising out of use of the
Patents or Technology, whether or not patentable, copyrightable or otherwise
protectable;
(e) "Patents" or "Patent Rights" shall mean the specific concepts, ideas,
inventions, Trade Secrets, Know-How (whether or patentable or not) related to
the Technology, the patent applications, patent and other industrial property
rights throughout the world (including all substitutions, divisions,
continuations, continuations-in-part renewals, reissues, extension and the
like), all specific rights of action on account of past, present or future use
of the Technology or Patents, all rights to file for applications for patents
and like protection for inventions relating to the Patents or Technology in any
country or jurisdiction throughout the world, all international rights of
priority associated with the Patents or Technology and all similar and
derivative rights of A-P relating to the Patents or Technology;
(f) "Technology" includes Patent Rights, Know-How and Trade Secrets owned
by A-P;
(g) "Trade Secrets" shall mean all documentation, Inventions, Know-How and
information relating to the past, present or future business of A-P or any plans
therefor, or relating to the past present and future business of a third party
or plans therefor that are disclosed to A-P. which A-P does not disclose to
third parties without restrictions on use or further disclosure.
ARTICLE 2- CONFIDENTIAL INFORMATION
2 1 The recipient of Confidential Information (the "Recipient") agrees to treat
all Confidential Information disclosed to it as strictly confidential and to use
its best efforts to hold a1l Confidential Information of the disclosing party
(the `Discloser") in confidence using a degree of care no less than the degree
of care that it would be reasonably expected to employ for its own similar
confidential information, and that it shall not disclose or divulge any of the
Confidential Information of the Discloser to anyone except the Recipient and its
officers, directors, partners or employees who have a need to know such
Confidential information and who have been advised of the confidential
provisions of this Agreement and agreed to be bound thereby. In addition, the
Recipient may disclose Confidential Information to its representatives, agents
and advisors (who may include lending institutions, financial advisors, legal
advisors and insurance companies) who need to know such information for the
purpose of assisting the Recipient with the evaluation and planning of a
transaction with the Disclosure or its shareholders and who have been advised of
the confidentiality provisions of this Agreement agreed to be bound thereby. The
Recipient agrees to be fully responsible for the people to whom it discloses
Confidential Information.
2.2 In the event that the Recipient or anyone to whom the Recipient transmits
the Confidential Information pursuant to this Agreement becomes legally
compelled to
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disclose any of the Confidential Information, the Recipient will provide the
Discloser with prompt notice thereof so the Discloser may seek a protective
order or other appropriate remedy and/or waive compliance with the provisions of
this Agreement, and the Recipient agrees to provide reasonable assistance in
seeking such protective order if so requested by the Discloser.
2.3 Upon the termination of this Agreement, the Recipient agrees to forthwith
return to the Discloser all of the Confidential information supplied under the
terms of this Agreement and any copies thereof together with all remaining
prototypes or products or any parts thereof and any documentation related
thereto, and with a statement certifying that all Confidential Information and
prototypes or products and any documentation related thereto have been returned.
The Recipient also shall destroy any summaries, analyses or extracts of
information contained in such Confidential Information, provided that the
Recipient may retain, for legal or corporate secretarial purposes only, copies
of its own notes. summaries, analyses, board or executive presentations.
2.4 Subject to the exceptions described in the following Section hereof, the
Recipient agrees that It will not use any of the Confidential Information of the
Discloser for any purpose other than as is described in this Agreement and will
written consent of the Discloser, except for purposes of its obligations under
this Agreement.
2.5 The foregoing obligations will not apply to information which
(a) is already in the possession of the Recipient at the time of receiving
the same from the Discloser;
(b) is in the public domain prior to its disclosure;
(c) is lawfully received by the Recipient from any third party who, I own
b the Recipient did not have a restriction on its disclosure or use;
(d) is approved in writing by the Discloser for release or other use by
the Recipient according to the terms stipulated in such approval; or
(e) is required to be disclosed to comply with a judicial order or other
legal requirement.
2.6 The above obligations with respect to Confidential Information shall
commence effective as of the date of this Agreement and will survive
indefinitely unless expressly superseded by a new agreement between the parties
covering the same subject matter.
2.7 The Recipient acknowledges and agrees that the Discloser shall retain all of
its right, title and interest in and to all intellectual property Inventions,
patent rights, Know-How and Trade Secrets in which it has a proprietary interest
and, other than allowing the Recipient to fulfill its obligations under this
Agreement, nothing in this Agreement shall be construed as transferring any such
right, title or Interest to the Recipient. The Discloser acknowledges and agrees
that the Recipient shall retain all of its right, title and interest in and to
all intellectual property with respect to its own equipment, system or
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processes used for the purpose of this Agreement and nothing in this Agreement
shall be construed as transferring any such right, title or interest to the
Discloser.
ARTICLE 3 -OBLIGATIONS OF AGGI
3.1 AGGI acknowledges that it will be a Recipient of Confidential Information.
3.2 AGGI agrees to provide to R & D Its premises, facilities, equipment and all
necessary human resources required by R & U in order to fulfill its obligations
under this Agreement, to be provided at AGO Is cost, including reasonable
provision for overhead expenses, which costs shall be quoted in advance to R & D
for each project.
3.3 For purposes of clarity, the parties agree that the fees of AGGI charged to
R & D will be at cost with no element of profit for AGGI. As provided in Section
6.4, A-P will advance funds to R & D by way of loan to pay those fees if R & D
does not itself have the necessary funds and A-P will be repaid such advances
from R & D before R & D makes any distribution to its shareholders. P & D will
have no element of profit from these projects, but will derive its profit from
the sale of prototypes and production lines as set forth in Section 6.5.
ARTICLE 4- OBLIGATIONS OF R & D
4.1 R & 0 acknowledges that it will be a Recipient of Confidential Information.
4.2 R & D agrees to obtain written quotations from AGGI on a non-exclusive basis
for each specific project which it wishes AGO to undertake. and which AGGI
wishes to undertake, and to provide such quotations to A-P as required by
Section 6.4 and to utilize the premises, facilities, equipment and human
resources of AGGI to provide ongoing research into improving the Technology in
metal-air batteries and fuel cells and to create patent rights in connection
therewith. It is understood and agreed that R & D has no obligation to
participate in every project. Any quotation may include costs for new equipment,
software and instruments if not available from the equipment, software or
instruments owned or used by AGGI.
4.3 R & D shall provide ongoing research on the Technology of A-P as requested
by A-P end assist in the creation, production, design, manufacture, marketing
and distribution of products for and on behalf of A-P when requested. R & D
shall, inter alia, create prototypes for products as requested by A-P and sell
such prototypes as instructed by A-P under such terms as is agreed to by A-P.
4.4 In addition, R & d shall design, develop and sell production lines to
produce the products developed by or on behalf of A-P. such sales to be to
parties agreed to by A-P.
4.5 AGGI and R & D acknowledge and agree that the services of Xxxx Xxxxxxxxx are
integral to the successful implementation of this Agreement and further agree
that Xxxx Xxxxxxxxx shall spend so much of his time and attention as may be
required to fulfill the projects undertaken by R & D.
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4.6 Each of R & D and AGGI agree to promptly disclose to A-P all Inventions and
keep accurate records relating to the conception and production of all
inventions. Such records shall be the sole and exclusive property of A-P and,
upon any suspension or termination of this Agreement, R & D and AGGI shall
surrender possession of such records to A-P.
4.7 Each of R & D and AGGI hereby assign to A P as directed by it without
additional consideration, the entire right, title and interest in and to any
Inventions and Technology and to all proprietary rights therein or based
thereon. Such parties agree to execute all such assignments, oaths, declarations
and other documents that may be considered advisable by A-P to effect the
foregoing, and to provide A-P with all information, documentation and assistance
it may request in order to perfect, enforce or defend a proprietary right in or
based on the Inventions or Technology. A-P, in its sole discretion, shall
determine the extent of the proprietary rights, if any, to be protected. All
such information, documentation and assistance shall be provided at no
additional expense to A-P, except for out-of-pocket expenses incurred by R & D,
AGGI or Xxxxxxxxx incurred at the request of A-P.
4.8 R & `D or AGGI, as the case may be, shall, at its expense, provide any
necessary equipment required to equipment required to fulfill its obligations
including, without limitation, other necessary hardware or software required to
test the prototype and fulfill its other obligations under this Agreement, save
as referred to in Section 4.2.
4.9 Representatives of A-P may observe R & D's testing at AGGI's facility at
such times as are mutually agreed to by the parties. It is understood that the
right to enter the AGGI's laboratory premises shall be at the sole risk of A-P.
4.10 R & D shall provide A-P with a copy of any report containing the results of
R & D's evaluation or development of products for various purposes. R & D shall
make representations and warranties about the suitability of the products for
various purposes. R & D agrees that it will not publish, disclose or otherwise
distribute or permit the distribution of any results or reports without the
specific written consent of A-P.
ARTICLE 5 - COSTS
5.1 Apart from any costs specifically dealt with in this Agreement, each party
shall bear its own costs incurred in connection with fulfilling its obligations
under this Agreement.
ARTICLE 6 - OBLIGATIONS OF A-P
6.1 A-P covenants and warrants as follows:
(a) that it is now and will throughout the term of this Agreement be the
sole and beneficial owner of the Patents and Patent Rights free of all
liens, charges and encumbrances whatsoever;
(b) that it has full power and authority to enter into this Agreement; and
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(c) that neither the Patents not the Patent Rights are the subject matter
of any suits, actions, proceedings or other litigation in any
jurisdiction within or without Canada.
6.2 A-P shall indemnify and save harmless AGGI all and from any loss, damage or
liability whatsoever arising or resulting from any breach by a A-P of any of the
provisions of this Agreement and, in particular, without limiting the generality
of the foregoing, in respect of a claim that in operating under the terms of
this Agreement, AGGI has infringed any patent or any other proprietary right or
any contractual right.
6.3 A-P agrees, that with respect to all metal-air batteries, it will provide R
& D with certain research and development projects and that R & D shall, in
performing these projects, be responsible to assist in the creation, production,
design, manufacture, marketing and distribution of prototypes and products
created by using its Patent Rights and its Technology as well as the design and
distribution of production lines for producing products resulting from its
Patent Rights and Technology. For purposes of clarity, it is understood and
agreed that no exclusive rights are being granted to R & D under this Agreement.
6.4 R & D shall provide a copy of the written quotation from AGGI to A-P in
advance for each project. If R & D does not have the funds to pay such costs,
A-P shall advance the shortfall by way of loan to R & D to cover the costs of
such projects, to be repaid to A-P (as set out in Section 4.2) from the income
of R & D as a first charge to be paid before any distributions to shareholders
of R & D.
6.5 A-P agrees that R & D shall be entitled to sell prototypes and production
lines on its own account and receive the proceeds from the sale of such
prototypes and production lines except for projects developed by a person. firm
or corporation other than R & D and save and except that: (i) A-P shall be
entitled to approve of the purchaser of such prototypes and/or production lines
and the contractual terms invoked in the transaction; and (ii) R & D shall not
be entitled to any proceeds from the sale of products produced from the
prototype or from the production line. It is also agreed that neither AGGI or AG
Group, Inc. shall be licensed to or sell any products produced by or for A-P.
6.6 Trimol agrees to issue to AGGI or its nominees a stack option for two
million (2,000,000) shares of Trimol with an exercise price of U.S. Fifth Cents
(U.S. $.5O) per share, expiring August 23, 2003, exercisable in whole or in part
from the vesting date of August 23, 2001, subject to the following:
(a) In the event that the closing price of Trimol Stock is less than One
Dollar ($100) per share on a U.S. Exchange at 5:00 p.m. (EST) on
August 23, 2003, then Trimol shall pay to AGGI for each share of
stock, whether the option has been exercised or unexercised, the
difference between One Dollar ($1.00) and the closing price at which
the stock last traded, but in no event more than Fifty Cents ($0.50)
per share.
Notwithstanding anything to the contrary contained in this Agreement,
no payment shall be required under this Subsection 6.6(a)
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(i) for any stock which has been sold by AGGI; or
(ii) if the price of Trimol stock on a US. Exchange has exceeded One
Dollar ($1.00) per share at the close of any market trading day
(A) after any of the exercised option stock has either been
registered for trading or available to be traded under any
proper exemption from registration under application
securities laws requirements, but
(B) before August 24, 2003.
(b) If, subsequent to August 23, 2001 and prior to August 23, 2003, there
has been a consolidation or division of the shares of Trimol, this
Section shall be interpreted, mutates mutandis.
(c) Trimol shall use its best efforts to register the underlying shares on
or before August 23, 2002, so that such shares can be freely traded on
the public market.
(d) In the event of a conflict between the provisions of this Agreement
and the provisions of the formal stock option agreement to be issued
by Trimol, the provisions of this Agreement shall prevail.
6 7 Eontech agrees to issue to AGGI or its nominee a stock option for 5.54
shares of common stock of Eontech, representing five percent (5%) of the
currently issued common stock (being 105.26 shares) with an exercise price of U
S Nine Hundred and Two Thousand, Five Hundred and Twenty-Seven Dollars and Eight
Cents (U S $902,527.08) per share or a total of U.S. Five Million Dollars (U.S.
$5,000,000.00), expiring August 23, 2004, exercisable in whole or in part from
the vesting date of August 23. 2001.
In the event that on or before August 23 2004
(a) AGGI and/or R & S have completed working prototypes for
(i) fuel cell cartridges;
(ii) electric power stations:
(iii) electric cartridges for universal military applications; and
(iv) electric batteries for automobiles,
together with complete sets of working drawings for each of the above and
such prototypes are ready for commercial sale, all in form satisfactory to
A-P in its discretion (acting reasonably); and
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(b) R & D has designed and built production line to produce cathode, anode
or electrolytes for the products referred to in Subsection 6.71(a); or
(c) A-P has entered into a major license or distribution agreement dealing
with any one or more at the products referred to in Subsection 6.7(a).
then the said 5,54 shares of Eontech will be issued to AGGI without charge and
with no obligation on the part of AGGI to pay the option price referred to
above.
In the event of a conflict between the provisions of this Agreement and the
provisions of the formal stock option agreement to be issued by Eontech, the
provisions of this Agreement shall prevail.
ARTICLE 7- TERMINATION
7.1 This Agreement may be terminated by A-P and Trimol, acting jointly, as
follows:
(a) if any of AGGI or R & D are unable to provide the services required of
it;
(b) if any of AGGI or R & D breaches or defaults on any material
obligation contained in this Agreement that is not cured within thirty
(30) days from its receipt of a written notice from A-P setting forth
the specific breach or default committed by it;
(c) if either AGGI or R & D files for protection under the federal
bankruptcy laws, or any bankruptcy petition or petition for
receivership s commenced by third party against either of them which
remains undismissed for a period of sixty (60) days from the date of
commencement; or
(d) upon ninety (9O) days' notice in writing to both AGGI and $ & D.
7.2 AGGI or R & D may terminate this Agreement as follows:
(a) if either A-P or Trimol breaches or defaults upon any material
obligation that is not cured within thirty (30) days from its receipt
of a written notice setting forth the specific breach or default
committed by them;
(b) if either A-P or Trimol files for protection under the bankruptcy
laws, or any bankruptcy petition or petition for receivership is
commenced by a third party against either A-P or Trimol which remains
undismissed for a period of sixty (60) days from the date of
commencement; or
(c) upon ninety (90) days' notice in writing to both A-P and Trimol.
7.3 In the event of termination of this Agreement and notwithstanding anything
to the contrary contained herein, the provisions of Article 2 shall continue
indefinitely. Notwithstanding the termination of the Agreement AGGI shall
continue to make payments required to be made by it for services rendered prior
sales made or loans made as the case may be, to the date of termination.
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8.1 This Agreement is not intended to create a partnership or joint venture
among the parties.
8.2 Neither of AGGI or R & D shall make any press release, reference in
marketing materials or make any other public disclosure regarding this
Agreement, the Technology or any services performed b them in connection
herewith without the prior written consent of both A-P and Trimol.
8.3 This Agreement shall be governed by and construed under the laws of the
Province of Ontario
8.4 This Agreement constitutes the entire agreement of the parties and
supersedes all previous and collateral agreements and understandings with
respect to the subject matter.
8.5 No waiver or modification of any of the provisions of this Agreement shall
be binding unless the waiver or modification is in writing and is signed by all
parties.
8.6 All notices, requests, demands or other communications (collectively,
"Notice") required by the terms hereof or permitted to be given by one party to
any other party shall be given in writing by personal delivery, by registered
mail (postage prepaid) or by facsimile transmission to such other party as
follows:
(a) to R & D at: 00000 Xxxx Xxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, XX
00000 U.S.A.
Fax No.: (000) 000-0000
C C. to: 00 Xxxxxxxx Xxxxxx
Xxxxxxx XX X0X 0X0
Xxxxxx
(b) to A-P at: 00 Xxxxxxxx Xxxxxx
Xxxxxxx, XX X0X 0X0
Xxxxxx
Fax No.: (000) 000-0000
C.C. to: Xxxxx X. Xxxxxxx, Q.C.
000 Xxx Xxxxxx
Xxxxx 0000
Xxxxxxx. XX X0X 0X0
Xxxxxx
(c) to Trimol at: 1285 Avenue of the Americas
00xx Xxxxx
Xxx Xxxx, X.X. 00000
X.X.X.
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Fax No.
(d) to AGGI at: 00000 Xxxx Xxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
U SA.
Fax No.: (000) 000-0000
C.C. to Xxxxx X. Xxxx, Esq.
Dinn, Hochman, Potter & Levy, LLC
Suite 200
5910 Landesbrook Drive
Mayfiald Heights, 08 44124
other parties hereto in writing from time to time.
All such Notices shall be deemed to have been received when delivered or
transmitted, or, if mailed, seventy-two (72) hours after 12:01 a.m. on the day
following the day of the mailing thereof. If any Notice shall have been mailed
and if regular mail service shall be interrupted by strikes or other
irregularities, such Notice shall be deemed to have been received seventy-two
(72) hours after 12:01 a.m. on the day following the resumption of normal mail
service, provided that during the period that regular mail service shall be
interrupted all Notices shall be given by personal delivery or by facsimile
transmission.
8.7 The parties shall sign further and other documents, cause such meetings to
be held, resolutions passed and by-laws enacted, exercise their vote and
influence, do and perform and cause to be done and performed such further and
other acts and things as may be necessary or desirable in order to give full
effect to this Agreement and every part hereof.
IN WITNESS WHEREOF this Agreement has beer, executed by the parties this
28th day of August, 2001.
SIGNED, SEALED AND DELIVERED ) EONTECH R& D, INC.
In the presence of: )
) Per: /s/ Xxxxxxxxx Xxxxxxxxx
)
) Per: Xxxxxxxxx Xxxxxxxxx
)
)
) ALUMINUM -POWER INC.
)
) Per: /s/ Xxxxx Xxxxxx
)
) Per: Xxxxx Xxxxxx
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)
) TRIMOL GROUP INC.
)
) Per: /s/ Xxxxxxxxx X. Xxxxxx
)
) Per: Xxxxxxxxx X. Xxxxxx
)
) AGGI LIMITED, LLC
)
) Per: /s/ Xxxxxxxxx Xxxxxxxxx
)
) Per: Xxxxxxxxx Xxxxxxxxx
)
) EONTECH GROUP INC.
)
) Per: /s/ Xxxx Xxxxxxxxx
)
) Per: Xxxx Xxxxxxxxx
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