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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15 (d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report: July 31, 1997
Amour Fiber Core, Inc.
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(Exact name of registrant as specified in its charter)
Washington 0-28978 91-1705387
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(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation or organization.) File Number.) Identification No.)
1120 East Stevens, P.O. Box 42, Sultan, WA 98294 (360) 793-0146
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(Address, including zip code, and telephone number, including area code,
of registrant;
Principal executive offices and principal place of business)
Item 5. Other Events.
On July 31, 1997 Amour Fiber Core Inc. entered into a License Agreement and
Production Equipment Sales Agreement with AFC California Inc. Also on July 31,
1997 Amour Fiber Core Inc. entered into a Exclusive Distribution Agreement with
AMREPRO Inc.
ITEM 7. Financial Statements and/or Exhibits
Exhibits
Exhibit No. Description
EX-99.1 Exclusive Distribution Agreement
EX-99.2 License Agreement and Production Equipment Sales Agreement
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Signatures
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has dully caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
AMOUR FIBER CORE INC.
(Registrant)
Date: July 31, 1997 By: /s/ C.A. Tony Peterson
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C.A. Tony Peterson
Director and
Chief Financial and
Principal Accounting Officer
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EXHIBIT 99.1
EXCLUSIVE DISTRIBUTION AGREEMENT
This Exclusive Distribution Agreement ("Agreement") is entered into this
31st day of July, 1997 (the "Effective Date") between Amour Fiber Core, Inc., a
Washington corporation ("Manufacturer") and AMREPRO, Inc., a Washington
corporation ("Distributor").
R E C I T A L S
A. Manufacturer has developed, manufactures, and licenses production of
railroad ties and highway guardrail posts made of recycled and new fiberglass
and resins, both hereafter (the "Products");
B. Distributor plans to engage, among other things, in the distribution
of recycled fiberglass products for specific applications throughout the world;
C. Manufacturer desires to appoint Distributor as its exclusive
distributor of the Products, and Distributor desires to accept such appointment,
on the terms and subject to the conditions set forth herein
Now Therefore, the parties agree as follows:
1. Appointment as Exclusive Distributor. Manufacturer hereby grants to
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Distributor, and Distributor hereby accepts such grant of, the exclusive right
(the "Distribution Rights") to warehouse, promote, market, distribute and sell
the Products. The territory ("Territory") for Distributor's Distribution Rights
is world-wide. During the term of this Agreement Manufacturer shall not, and
shall not permit its Affiliates to, grant any distribution or license rights to
any other person with respect to the Products, nor shall it directly sell,
distribute or otherwise deliver any Products to any other person, firm or
entity.
During the term of this Agreement Manufacturer agrees to supply
Distributor with Products as ordered on a continuous basis. Distributor agrees
to buy such Products from Manufacturer and use its best efforts to sell Products
in the Territory.
2. Products and Conditions. Manufacturer shall be entitled to add to or
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replace any of the Products consistent with buyers specifications and
certification; provided that any replacement of any product shall be
substantially equivalent in function to the replaced product, shall be in
compliance with the regulatory requirements and shall be subject to the approval
of Distributor. Manufacturer shall advise Distributor in writing in advance of
any proposed modification, or replacement, to any certified or regulatory
approved Product
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accompanied by details of the replacement product and specifying the effective
date of the proposed change.
Any modifications, updates, developments, engineering changes or
supplements which collectively or individually affect the shape, composition or
function of the Products (collectively, the "Product Changes") shall be
incorporated into the Products offered for sale by Manufacturer to Distributor
pursuant to the terms of this Agreement. Manufacturer shall support the
Distributor who shall be responsible for obtaining any regulatory approvals or
clearances, if applicable. Manufacturer shall disclose all proposed Product
Changes to Distributor. Manufacturer also agrees to provide Distributor with
price lists and preproduction samples of the Products incorporating the Product
Changes for evaluation, as reasonably may be requested by Distributor. Such
Product Changes shall be deemed to be Products hereunder and all terms and
conditions contained herein with respect to the Products (including
Distributor's Distribution Rights) shall equally apply to such Product Changes.
3. Status as Independent Contractor. Each party shall be an independent
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contractor in relationship to the other party, and this Agreement does not
create an employer-employee or a principal-agent relationship between
Manufacturer and Distributor. Neither party is authorized to enter into
agreements for or on behalf of the other party, create any obligation or
responsibility, express, or implied, for or on behalf of the other party, accept
payment of any obligation due or owed to the other party, accept service of
process for the other party, or bind the other party in any manner.
4. Terms of Distribution Rights.
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4.1 The price for the Products shall be as set forth on Schedule A
attached hereto, until such time as a price change is instituted pursuant to
Section 4.2 below.
4.2 Manufacturer may initiate a price change annually for the Products
on the terms set forth in this agreement ("Price Changes"), which shall be set
forth in a revised price list to be furnished by Manufacturer to Distributor.
Each Price Change shall be limited to increases in raw materials, labor, and
general overhead. Price Changes will be effective as of 30 days following
Distributor's receipt of such revised price list and Distributor will pay for
the Products in accordance with the Price Changes on all orders made on or after
such 30 day period.
4.3 Terms of sale are thirty days net, F.O.B. Amour Fiber Core, Inc.,
Sultan Washington, or the USA site of manufacture or other sites of manufacture
acceptable to Distributor. Transfer of title and risk of loss shall pass to
Distributor when the Products are delivered to Distributors plant or are
delivered to a common carrier approved by Distributor.
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4.4 All payments by Distributor to Manufacturer shall be made in U.S.
Dollars, without set-off or counterclaim and free and clear of, and without
deduction for, any taxes, levies, import duties, charges, fees, deductions,
withholdings, restrictions or conditions of any nature now or hereafter imposed
or levied by any country or any political subdivision thereof or taxing or other
authority therein, unless Distributor is compelled by law to make such deduction
or withholding.
4.5 Invoices for the Products will be issued upon shipment. Payment
for these invoices shall be made in full within thirty (30) days from the date
of invoice. In the event Distributor defaults in making payment for the Product
sold to it hereunder, and such default is not cured within 30 days after written
notice, Manufacturer may, without limitation to Manufacturer's other rights and
remedies, suspend further shipments to Distributor until Manufacturer receives
adequate assurances of payment.
4.6 Manufacturer shall ship Products ordered hereunder to
Distributor's facility or to such address as Distributor may request, provided
that shipping costs shall be borne by Distributor. Manufacturer will use its
best efforts to meet each order for the Products placed by Distributor on or
before the requested shipment date.
4.7 Manufacturer agrees to manufacture and sell to Distributor the
Products meeting the Manufacturer's specification applicable to the Products.
Orders for Products shall be on written forms ("Purchase Orders") stating
therein the quantity and type of Products desired and the date and destination
of delivery.
4.8 Each shipment of Products shall be accompanied by a Certificate,
signed by a quality control representative of Manufacturer, certifying that the
Products conform to the specification applicable to the Products. Upon the
arrival of Products at the destination designated by Distributor in the Purchase
Order, Distributor shall promptly inspect the Products and shall give written
notice to Manufacturer within 60 days after the arrival of any claims if the
Products do not conform with the Specification. If Distributor retains the
Products in its possession after arrival at the destination designated in its
Purchase Order without giving Manufacturer such notice within the 60-day period
described above, such failure to give timely notice shall constitute acceptance
of the Products by Distributor.
4.9 Any shipment of Products delivered to Distributor by Manufacturer
which does not conform to the specification and is rejected by Distributor will
be promptly replaced by Manufacturer. If replacement is not feasible, any sums
actually paid therefor will be promptly refunded by Manufacturer. The remedy of
replacement or refund is available only if such
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nonconformance was not caused by Distributor's unauthorized modifications,
improper testing or improper storage.
4.10 All terms of this agreement are subject to the rights of the
Distributor, or an affiliate of the Distributor, to manufacture the Products as
a licensee of the manufacturer.
4.11 Distributor agrees to pay for all reasonable costs directly
associated with the development, and test of new Products which are the subject
of this agreement and to pay for all direct cost associated with regulatory
approval and/or certification of the Products for sale in the U.S. and all other
countries in which the Distributor enters the market.
5. Duties and Covenants of Distributor.
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5.1 Distributor shall use its best efforts to promote, market and sell
the Products in the Territory and to develop the sales potential for the
Products throughout the Territory. Distributor shall conduct its business in an
efficient, professional and responsible manner so as to enhance and support the
reputation and goodwill of the Products in the Territory.
5.2 Distributor shall maintain a Product inventory, sales force and
warehouse facilities in the Territory reasonably sufficient to perform all of
its duties hereunder.
5.3 Distributor shall produce the sales, marketing, promotional and
other informational material regarding the Products for use in the Territory in
reasonable quantity at its own expense.
5.4 Distributor shall be responsible for the credit of its own
dealers, customers and agents.
5.5 Distributor shall not change any Product in any manner, except
with the prior written consent of Manufacturer. Upon the termination or
expiration of this Agreement, Distributor shall immediately cease the use of any
of Manufacturer's trademarks, tradenames, service marks, or brand names
incorporated into the Private Label.
5.6 Distributor shall comply in all material respects with all
applicable laws or regulations or orders of any and all governmental authorities
within the Territory, including those applicable to any export/ import and sales
activities with respect to the Product. Distributor agrees that it will not
directly or indirectly do any act or thing which will constitute a violation by
Distributor or Manufacturer of any applicable laws or regulations.
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5.7 Distributor shall promptly advise Manufacturer of any changes or
amendments to any applicable governmental rules or regulations or the issue of
any new rules or regulations of any area within the Territory of which
Distributor becomes aware and which would cause the Products and/or their
manufacture or labeling not to meet applicable requirements or which require
adjustment to the Products and/or their manufacture or labeling.
5.8 Distributor shall promptly investigate, respond to and send copies
of all correspondence involving any and all complaints concerning the Products
from dealers, agents, sales representatives, customers, end-users, or patients
within the Territory. Manufacturer shall provide such assistance in the
evaluation of complaints received by Distributor as may be reasonably requested
by Distributor. Distributor shall notify Manufacturer of all material complaints
which are found by Distributor to be related to the design or manufacture of the
Products.
5.9 Distributor shall notify Manufacturer promptly after Distributor
becomes aware of any of the following: alleged infringement by Manufacturer of
the trademark, tradename, service mark brand name, patent, trade secrets or any
other intellectual property rights of any third parties; alleged infringement of
Manufacturer's logo, trademark tradename, service mark brand name, patent, trade
secrets or any other intellectual property rights of Manufacturer; any liability
claims regarding the Products; and any other matters that have had or may
reasonably be expected to have an adverse effect on the sale of the Products in
the Territory.
5.10 Distributor shall furnish all reasonable assistance as may be
required, at Manufacturer's request and expense, to enable Manufacturer to
defend against any claims of third parties that may be threatened or filed
against Manufacturer or its affiliates relating to the sale or use of any of the
Products in the Territory, or that Manufacturer or its affiliates may assert
against third parties relating to the sale or use of any of the Products in the
Territory.
6. Duties and Covenants of Manufacturer. Manufacturer shall ensure
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that all Products are manufactured, labeled and sold to Distributor in
accordance with all applicable laws, rules and regulations. Manufacturer shall
comply in all material respects with all laws, regulations or orders of any and
all governmental authorities within the United States and shall use best efforts
to comply in all material respects with all laws, regulations or orders of any
governmental authorities outside the United States as to which Distributor has
provided notice. Manufacturer agrees that it will not directly or indirectly do
any act or thing which will constitute a violation by Distributor or
Manufacturer of any applicable laws or regulations.
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7. Product Warranty--Limitations of Liability. For the period commencing
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with the date of shipment of the Product and continuing until twenty-four (24)
months following the date of shipment, Manufacturer warrants that the Products
shall be free from defects in material and workmanship.
THE FOREGOING WARRANTY IS IN LIEU OF AND EXCLUDES ALL OTHER WARRANTIES,
WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTES OF
MERCHANT ABILITY OR FITNESS-FOR-USE, AND OF ANY OTHER OBLIGATION ON THE PART OF
MANUFACTURER.
Manufacturer's sole obligation under this warranty shall be to repair
or replace any Product in breach of warranty and pay transportation expenses for
such replacement at no charge to Distributor.
8. Representations. Each party to this Agreement represents to the other
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as follows:
8.1 It is a corporation in good standing under the laws of its
jurisdiction of incorporation, with all necessary corporate power and authority
to execute, deliver and perform this Agreement.
8.2 Execution, delivery and performance of this Agreement have been
approved by all necessary corporate action.
9. Term and Termination.
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9.1 This Agreement shall commence on the Effective Date and continue,
unless earlier terminated pursuant to the terms hereof, for an initial term of
ten (10) years. The term of this Agreement shall thereafter be automatically
renewed for one successive term of ten (10) years, provided the Distributor has
not given the Manufacturer at least 90 days prior written notice of its election
to not renew the term of this Agreement.
9.2 Either party may give the other party written notice of
termination of this Agreement if such other party is in material breach of any
of its obligations under this Agreement. The termination shall become effective
ninety (90) days from the date such notice is given unless, within such 90-day
period, such breach and any intervening breaches have been cured to the
reasonable satisfaction of the non-breaching party.
9.3 Notwithstanding the foregoing, either party may immediately cancel
any order and may immediately terminate this Agreement, in whole or in part, (i)
upon the filing of any petition in bankruptcy against the other party which is
not cured or dismissed within sixty (60) days thereafter, (ii) if the other
party is ordered or adjudged bankrupt, becomes insolvent or goes into
liquidation, or
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generally fails to pay debts as they become due, (iii) upon appointment of a
receiver or custodian of all or a part of the other party's assets by any
judicial or governmental procedure, (iv) upon admission of the other party to
the benefit of any procedure for the settlement of its debts, or (v) upon
seizure of all or a substantial part of the other party s assets by any judicial
or governmental procedure.
9.4 Upon any termination of this Agreement, Distributor shall
forthwith discontinue selling the Products and making representations regarding
its status as a distributor for Manufacturer, and from taking any other action
or doing any other thing relating to Manufacturer or the Product, and shall
return all information and materials in its possession described herein. Upon
any early termination of this Agreement, all amounts owed from Distributor to
Manufacturer shall become immediately due and payable; provided, however, that
Distributor shall be entitled to continue to market and sell the Products in
Distributor's inventory until such time as it has sold all Products which
Distributor held in inventory prior to the termination hereof, provided further
that such marketing and sales shall be made pursuant to the terms hereof.
9.5 Except as otherwise provided for herein, termination of this
Agreement shall not release either party hereto from any liability which at the
time of termination has already accrued to the other party hereto or which after
termination may accrue in respect of any act or omission prior to termination
from any obligation which is expressly stated herein to survive termination.
10. Indemnification.
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10.1 Distributor will indemnify, defend and hold harmless
Manufacturer, Manufacturer's officers, directors, employees and agents from and
against any and all losses, liabilities, damages and expenses, including, but
not limited to, court costs and actual attorneys' fees (collectively, "Losses")
suffered or incurred by them as a result of (i) the breach of any of
Distributor's duties or covenants under this Agreement, or (ii) the breach of
any of the representations and warranties of Distributor set forth in this
Agreement. The foregoing indemnity shall not require payment as a condition
precedent to recovery and shall survive termination of this Agreement.
10.2 Manufacturer will indemnify, defend and hold harmless
Distributor, Distributor's officers, directors, employees and agents from and
against any and all losses, liabilities, damages and expenses, including, but
not limited to, court costs and actual attorneys' fees (collectively, "Losses")
suffered or incurred by them as a result of (i) the breach of any of
Manufacturer's duties or covenants under this Agreement, (ii) the breach of any
of the representations and warranties of Manufacturer set forth in this
Agreement, excluding that covered by the breach of Product Warranty set forth in
Section 7 hereof, (iii) any claims of (actual or alleged) infringement of
patent, trademark trade secret or
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other intellectual property rights of any third party in connection with the
manufacture, sale, distribution or use of the Products, and (iv) any claims for
products liability related to the Products. The foregoing indemnity shall not
require payment as a condition precedent to recovery and shall survive
termination of this Agreement.
11. Proprietary Rights, Confidentiality, License.
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11.1 Distributor acknowledges that Manufacturer is the exclusive
master Licensee of all patents, patent applications, trade secrets and
intellectual property rights relating to the Products and all the trademarks
used in the promotion and sale of the Products, and that Distributor has no
rights or interest in or to such patents, patent applications, trade secrets,
intellectual property rights, trademarks and tradenames. Distributor shall never
contest the exclusive right of Manufacturer to such patents, patent
applications, trade secrets, intellectual property rights, trademarks and
tradenames. Distributor shall have no further rights or interest in such
trademarks and tradenames.
11.2 The parties acknowledge that any and all trade secrets, ideas,
information, research, methods, improvements, patents, copyrighted material and
all other confidential information, and the good will associated with them,
owned or developed by one party (the "disclosing party") and directly or
indirectly revealed to the other party (the "receiving party") are, and shall
remain, the sole and exclusive property of the disclosing party. All such
information and knowledge about the disclosing party, its products, services,
standards, specifications, procedures and techniques, which are not in the
public domain or generally known in the industry, and such information and
material as the disclosing party may designate in writing as confidential, shall
be deemed confidential for purposes of this Agreement. The receiving party
agrees to keep all such information confidential and to use it only for the
purpose and in the manner authorized by the disclosing party. Each party agrees
that during and after the termination of this Agreement, neither the receiving
party nor any of its agents or employees shall copy or disclose to any other
person or entity, or use for any purpose other than as contemplated by this
Agreement, any proprietary or confidential information in contravention of this
Section. At the disclosing party's request, the receiving party shall enforce
any such agreement on the disclosing party's behalf.
11.3 Subject to the terms and conditions of this Agreement,
Manufacturer hereby grants to Distributor an exclusive world-wide royalty-free
license to use the trademark (the "Licensed Mark") in the marketing and sales of
the Products pursuant to this Agreement. This license does not include the right
to sublicense and is not assignable without the prior written consent of
Manufacturer.
11.4 Distributor agrees to use the Licensed Mark in a
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commercially acceptable and reasonable manner and style to protect and enhance
the image and reputation of the Licensed Mark and Manufacturer, and to ensure
that no such use shall reflect adversely upon the goodwill, prestige or
reputation of the Licensed Mark or Manufacturer. In the event that Manufacturer
shall object to any label, packaging or advertising as violating the provisions
of this Agreement, Manufacturer shall notify Distributor in writing of any
objection and afford Distributor sixty (60) days to introduce new labels,
packaging, marketing or advertising. Distributor shall use appropriate trademark
notices on all the labels and advertising and all other written embodiments of
the Licensed Mark, including the federal trademark notice "@" in the United
States.
12. Assignment. This Agreement may not be assigned or otherwise
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transferred by either party, in whole or in part, by operation of law or
otherwise, without the prior written consent of the other party, which consent
shall not be unreasonably withheld and any such assignment or transfer without
such prior written consent shall be null and void and of no force or effect
whatsoever, provided, however, that either party may assign this Agreement
without the other party's consent in connection with the sale of substantially
all of the assets associated with such party's business.
13. Entire Agreement. This Agreement constitutes the complete, final and
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exclusive statement of the terms of the understanding between the parties
concerning the purchase, sale and distribution of the Products. This Agreement
supersedes all prior agreements and understandings concerning its subject matter
and may not be amended without further written agreement of both parties. If any
provision of this Agreement should be found to be invalid or unenforceable, all
of the other provisions shall nonetheless remain in full force and effect to the
maximum extent permitted by law.
14. Applicable Law. This Agreement shall be construed in accordance with,
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and all disputes hereunder shall be governed by, the internal laws of the State
of Washington.
15. Attorneys' Fees. In any action or proceeding arising hereunder, the
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prevailing party shall be entitled to recover its costs and reasonable
attorneys' fees, as determined by the court.
16. Notices. Any notice required or permitted hereunder shall be given in
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writing by hand delivery, by carrier guarantying overnight delivery, by prepaid
certified mail, return receipt requested, or by facsimile or similar electronic
means, addressed to the parties at their respective addresses above (or such
other addresses as they may from time to time designate) and directed to the
attention of the president of the recipient. Notice by hand delivery shall be
effective upon receipt. Notice by carrier guarantying overnight delivery shall
be effective upon the day following delivery of the notice to such carrier.
Notice by
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mail shall be deemed received five (5) days after mailing. Electronic notice
shall be effective upon receipt of confirmation of transmission.
17. Controlling Forms. It is understood that Manufacturer and Distributor
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may use their standard purchase order and sales agreement forms during the
performance of this Agreement and that the Products may be ordered by such order
forms or by telephone or fax. All telephone orders must be confirmed in writing
as soon after the order is placed as practicable and any such confirming order
must plainly be marked with the word, "CONFIRMATION", on its face. Any purchase
order, sales agreement or other form used by the parties hereto shall be used
for convenience only and any terms or provisions which may be contained therein
which are in addition to or inconsistent with those contained therein shall have
and be of no force and effect.
18. Waiver. Any party's failure to insist, in one or more instances, upon
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the performance of any term or terms of this Agreement shall not be construed as
a waiver or relinquishment of right to such performance or the future
performance of such term or terms, and the other party's obligation with respect
thereto shall continue in full force and effect.
19. Force Majeure. The obligations of either party to perform under this
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Agreement shall be excused if such failure to perform or any delay is caused by
acts of God or the public enemy, strikes, civil commotion, riots, war,
revolution, fire, explosion, flood, compliance with or other action taken to
carry out the intent or purpose of any law or regulation, or any other cause
reasonably beyond the control of the party obligated to perform. Upon the
occurrence of such an event, the duties and obligations of the parties shall be
suspended for the duration of the event preventing proper performance under this
Agreement, provided, however, that if such suspension shall continue in excess
of sixty (60) days, the parties shall meet and attempt to arrive at a mutually
acceptable compromise within the spirit and intent of this Agreement.
20. Publicity. Neither party will originate any publicity, new release, or
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other public announcement, written or oral, whether to the public press, to
holders of publicly owned stock, or otherwise, relating to this Agreement, to
any amendment thereto or to performance hereunder or the existence of an
arrangement between the parties without the prior written approval of the other
party. Such approval will not be unreasonably withheld.
IN WITNESS WHEREOF, this Agreement has been executed by the undersigned
authorized representatives of the parties as of the Effective Date stated above.
//
//
//
//
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AMOUR FIBER CORE, INC.
a Washington corporation
By: /s/ WM E. AMOUR
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William E. Amour
President and Chief Executive Officer
AMREPRO, INC.
a Washington corporation
By: /s/ GLENN L. GEARHART
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Glenn Gearhart
President
Schedule A
Wholesale of Prices of Products
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EXHIBIT 99.2
LICENSE AGREEMENT
AND
PRODUCTION EQUIPMENT SALES AGREEMENT
This Agreement is made this 31st day of July 1997, by and between AFC
California, Inc., a California company hereinafter referred to as ("Licensee or
Purchaser") and Amour Fiber Core Inc., a Washington corporation, hereinafter
referred to as ("Licensor or Seller").
WHEREAS: AFC California, Inc., desires to enter into a Production Equipment
purchase and sublicensing agreement wherein they will acquire fiberglass
production equipment, operational training and licensing rights; and
WHEREAS: Amour Fiber Core Inc. desires to enter into an agreement to sell
fiberglass production equipment, operational training and sublicense rights to
manufacture fiberglass products.
NOW THEREFORE all parties agree:
1. Definitions and References. The following definitions and references shall
apply:
"Confidential Information" shall mean the information, defined as
confidential under the terms of the "AFC CORPORATE NON-DISCLOSURE AGREEMENT,"
provided in Exhibit "E" and incorporated herein by reference.
"Developments" shall mean each and every invention, development or
modification of any product or process made by, for, from, or under the master
license held by the Licensor/Seller.
"Documentation" shall mean all information relating to the Intellectual
Property Rights, including but not limited to the Patents, Trademarks, trade
secrets, copyrights, and confidential information.
"Dollars and $" shall mean in all cases, unless otherwise stated, US
Dollars.
"Non-exclusive Territory" shall mean all countries of the world except
Australia and New Zealand.
"Adjusted Gross Receipts" shall mean the price received by the Licensee for
the sale of the Product, with deduction for any sales commissions and expenses
paid by the Licensee as defined in Exhibit F attached hereto and incorporated
herein by reference.
"Initial License Fee" shall mean the license fee paid for the license to
manufacture and sell the licensed Products and Products derived therefrom for
the term of the Agreement without execution of any Option.
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"Intellectual Property" shall mean the Technical Information, the
Confidential Information, and the Developments.
"Intellectual Property Rights" shall mean all intellectual property rights
including but without limitation: (i) patents, copyright, rights in designs,
trademarks and the right to have Confidential Information kept confidential;
(ii) any application or right to apply for registration of any of the rights;
and (iii) rights in relation to the Intellectual Property.
"Know-How" means all knowledge and capabilities relating to the Product in
possession or control of Licensor/Seller or the Licensee/Purchaser or the
techniques which have been or are developed by Licensor/Seller which are used in
manufacturing the Product, or which are within the scope of the master license,
or the Patent from which the master license has been issued.
"New Intellectual Property" means the Developments.
"Option" shall mean the right to negotiate an extension of the license
Agreement for an additional term.
"Production Equipment" shall mean the equipment listed and described in
Exhibit "A" hereto and incorporated herein by reference.
"Product or Products" shall mean any product or products manufactured or
marketed by Licensor/Seller or its representative or agent, or licensees,
including products incorporating New Intellectual Property.
"References" A reference to: a person shall include a corporation; a person
shall include the legal personal representatives, successors and assigns of that
person; this or any other document shall include the document as varied or
replaced and notwithstanding any change to the identity of the parties; and
writing shall include any mode of representing or reproducing words intangible
and permanently visible form and shall include telex and facsimile transmission.
"Site" means the location chosen by the Licensee/Purchaser for the
manufacturing plant to produce the Product, such location meeting the general
requirements recommended by Licensor/Seller as described in Exhibit "B" which is
incorporated herein by reference.
"Site Equipment" shall mean all equipment listed and described in Exhibit
"B" and incorporated herein by reference.
"Term" shall mean that period of time defined for enjoyment of the license
rights granted under this Agreement.
"Termination Date" shall mean the date that the license rights granted
under this agreement to the Licensee/Purchaser is ended.
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"Words" importing the singular shall include the plural and vice-versa; and
any gender shall include all other genders.
"Works" shall mean the preparation work and activities to be completed on
Site by the Licensee/Purchaser in accordance with this agreement and which is
presented in detail in Exhibit "B" of this agreement and incorporated herein by
reference.
2. License to Manufacture and Sell
2.1 Licensor/Seller hereby grants to the Licensee/Purchaser upon payment of
the Initial License Fee an exclusive license to manufacture and sell the Product
for sale within the Territory for the Term in accordance with the provisions of
this Agreement. This license is granted under a Master License which is held by
the Licensor/Seller.
2.2 The Licensee/Purchasers shall pay Licensor/Seller:
2.2.1 Upon the execution of this Agreement two hundred and fifty thousand
American dollars US $250,000.00 (the Initial License Fee); and
2.2.2 A royalty in the amount of five percent (5%) of the Adjusted Gross
Receipts of all products sold by the Licensee/Purchaser, payable in US Dollars
within 20 business days after the end of each calendar month in the manner
directed by Licensor/Seller from time to time. Sold for the purpose of royalty
payments shall mean receipt of cash or cash equivalent from buyer, and shall be
subject to adjustments, offsets consistent with collections and buyers
associated adjustments and offsets.
3. Production Equipment Purchase, Operational Training and Technical Assistance
3.1 Licensor/Seller hereby represents that with regard to production the
Production Equipment if operated in accordance with the plant plans and
procedures provided Licensor/Seller and in conjunction with the Site Equipment
shall operate at the operational capacity described in at Exhibit "A".
Licensor/Seller has not and will not grant nor give any expressed or implied
warranty as to the actual or potential production rates or production time,
which will or could be obtained from the Production Equipment.
3.2 Licensor/Seller will provide on-site training in the operation and
maintenance of the Production Equipment and application of the Licensed
"Process" and will provide technical assistance in support of the production
operations of Licensee/Purchaser. Licensor/Seller hereby has not and will not
grant nor give any expressed or implied warranty as to the actual or potential
benefits of such training or technical support to production rates or production
time which will or could be obtained from the Production Equipment nor from the
success of any activity which flows from such training or advice.
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3.3 Licensor/Seller shall sell and the Licensee/Purchaser shall purchase the
Production Equipment for the sums negotiated by the parties and documented in
individual purchase orders. Title to the Production Equipment produced by the
Licensor/Seller shall pass to the Licensee/Purchaser upon payment of the monies
specified in purchase orders between the parties. The price of such equipment
shall be FOB Sutlan, WA, USA. The Licensee/Purchaser reserves the right to
acquire equipment from other sources.
3.4 A Licensee/Purchaser will acquire by direct purchase from source various
Production Equipment items and components necessary to construct the
Manufacturing Plant. Licensee/Purchaser will advise Licensee/Seller of all
Production Equipment purchases, which are not provided by Licensor/Seller.
Licensee/Purchaser will accept all liability as to condition of third party
acquired equipment and its actual negative impact on the production capacity,
capabilities, and success of the operation of the manufacturing plant.
3.5 The Production Equipment produced by Licensor/Seller shall be delivered to
the Licensee/Purchaser by incremental releases according to instructions and at
the cost and direction of the Licensee/Purchaser.
3.6 The Licensee/Purchaser shall ensure that the appropriate Site Equipment is
available; and the Works are completed at the Site prior to or consistent with
the anticipated date of delivery of the Production Equipment.
3.7 Licensor/Seller shall advise Licensee/Purchaser on the construction and
assembly of the Production Equipment and shall provide on-site operational
training to employees of the Licensee/Purchaser according to a mutually
agreeable schedule.
3.8 Licensor/Seller shall provide Licensee/Purchaser with such continuing
technical assistance as the Licensee/Purchaser shall reasonably require.
Licensee/Purchaser shall pay the invoiced costs for such service. At
Licensee/Purchaser's request Licensor/Seller will provide bids on specific
technical assistance requested.
3.9 Licensor/Seller grants Licensee/Purchaser or its affiliates the rights to
enter into additional License Agreements for Production within the USA on the
same terms and conditions as this agreement.
4. Obligations of Licensee/Purchaser
4.1 The Licensee/Purchaser shall:
4.1.1 Use its best endeavors to develop and maintain a demand for, promote
and maximize the sales of the Product within the Territory;
4.1.2 Ensure that all of its sales and marketing personnel are adequately
trained as to Products features;
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4.1.3 Obtain, promote and maintain the goodwill with its customers and the
public;
4.1.4 Consult with Licensor/Seller from time to time regarding market
developments and promotion of the Product;
4.1.5 Preserve the Intellectual Property Rights of Licensor/Seller;
4.1.6 Annually provide to the Licensor/Seller an independently audited
statements as to the total gross sales, and the average gross sales price of
each product, the number of each product sold;
4.1.7 Maintain at all times sufficient stocks of promotional material to
ensure that prospective customers can be adequately informed as to the Products;
and
4.1.8 Use its best endeavors to achieve the maximum annual production.
5. Representations by the Licensee/Purchaser
5.1 The Licensee/Purchaser represents and warrants that it shall not, without
the specific consent in writing of Licensor/Seller:
5.1.1 Use, as any part of its corporate or business name or logo in trade,
any word or symbol of Licensor/Seller or confusingly similar to any word or
symbol of Licensor/Seller other than AFC California, Inc. which use is expressly
authorized by this Agreement; and
5.1.2 Remove, deface or alter any trademark, service mark, or trade name
of Licensor/Seller in relation to the Products;
5.2 The Licensee/Purchaser represents and warrants that it shall not, without
the specific consent in writing of Licensor/Seller:
5.2.1 Market or sell any Products, or services manufactured under this
agreement, outside of the territory defined in this Agreement;
5.2.2 Represent to any person that it has authority to bind
Licensor/Seller; or
5.2.3 Enter into any license or sublicenses.
6.0 Production Equipment Upgrades
6.1 Licensee/Purchaser is authorized to purchase replacement, upgrade and
expansion equipment from any source.
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6.2 The Licensor/Seller agrees to, and will, offer the Licensee/Purchaser the
option of purchasing molds for new products developed by the Licensor/Seller and
the Licensee/Purchaser agrees to, and will, offer the Licensor/Seller the option
of purchasing molds for new products developed by the Licensee/Purchaser.
6.3 The parties will share results of any product or process test and whenever
feasible will cooperate in testing projects.
7.0 Protection of Territories
7.1 All parties will cooperate in the protection of the marketing and sales
territories established by this agreement and all territories which the
Licensor/Seller may in the future grant to various parties as either exclusive
or non-exclusive.
7.2 The parties agree to develop a policy and procedure to: direct interested
and potential customers to the Licensed product supplier for the specific
marketing and sales territory; and as appropriate to establish a compensation
schedule for such referrals.
7.3 The parties agree to develop a policy and procedure to: monitor sales;
cooperate in the detection; and enforcement of territory sales rights.
8. Confidentiality
8.1 The Licensee/Purchaser agrees to keep confidential the Confidential
Information and to use it only as specifically authorized by this Agreement.
8.2 The Licensee/Purchaser may disclose Confidential Information only to those
of its employees with a need to know and must not disclose or authorize anyone
to disclose Confidential Information to any third party.
8.3 The Licensee/Purchaser must ensure that all employees and any other parties
to whom the Licensee/Purchaser discloses Confidential Information sign the "AFC
CORPORATE NON-DISCLOSURE AGREEMENT" and are aware of and comply with the
provisions of this Section 8.
8.4 The obligations of the Licensee/Purchaser to Licensor/Seller pursuant to
this Clause shall remain in force for a period of five (5) years following the
end of the Term.
9. New Intellectual Property
9.1 Licensor/Seller and Licensee/Purchaser shall promptly, effectively and
fully disclose to each other, in writing, full details of all New Intellectual
Property.
9.2 For and in consideration of the benefits conferred upon the
Licensee/Purchaser hereunder including the benefit of the Option granted to the
Licensee/Purchaser pursuant to Agreement, the Licensee/Purchaser agrees and
acknowledges that by virtue of this
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Section all New Intellectual Property developed by Licensor/Seller is the
property of Licensor/Seller and Licensee/Purchaser hereby assigns all worldwide
rights to Licensor/Seller.
9.3 Licensee/Purchaser must, at the request and expense of Licensor/Seller,
and without compensation from Licensor/Seller sign all such documents and do all
such things as shall be necessary to vest, confirm, perfect and record ownership
by Licensor/Seller throughout the world of all right title and interest in and
to any New Intellectual Property developed by Licensor/Seller and to enable
Licensor/Seller to acquire and preserve such rights and to have full enjoyment
thereof .
10. Term and Termination
10.1 This Agreement commences on the date indicated and terminates ten (10)
years for the date indicated, subject to earlier termination due to the
occurrence of a Terminating Event.
10.2 The License/Purchaser is hereby granted an Option to extend the License
rights hereunder for an additional period of ten (10) years upon the same terms
and conditions as this Agreement and upon payment of a further License fee of
US$250,000.00.
10.3 Either party may terminate this agreement if the other party commits any
breach of this Agreement and fails to remedy that breach within forty-five days
after receiving written notice of the breach.
10.4 Either party shall immediately notify the other party if it enters into
voluntary or involuntary liquidation, files for protection under the Bankruptcy
code, ceases to be able to make payment to its creditor, makes or causes to be
made an assignment of its assets or business whether in whole or in part for the
benefit of its creditors if a receiver or receiver and manager or trustee is
appointed to take over, administer or conduct all or a substantial part of its
business or if any resolution is passed or proceedings commenced for the winding
up of the other party.
10.5 Upon termination of this Agreement, the Licensee/Purchaser must
immediately:
10.5.1 Stop using all marks and names associated with Licensor/Seller;
10.5.2 Return to Licensor/Seller all Intellectual Property in a material
form; and
10.5.3 Cease to represent that it is acting as the agent of
Licensor/Seller.
10.6 Neither party shall be liable to the other for any loss of profits or
earnings or compensations from, whether directly or indirectly, the termination.
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11. Resolution of Disputes
11.1 Other than the right to proceed with a injunctive relief or interlocutory
relief, the parties agree to proceed with a private dispute resolution procedure
prior to utilization of the judicial remedies.
11.2 A party claiming that a dispute has arisen must notify the opposing party
in writing of the disputed issues giving details of the dispute. During a
period of twenty (20) days after a notice is given, all parties shall use their
best endeavors to resolve the dispute.
12. Payments and Tax
12.1 Both in the U.S. and in foreign sales transactions the Licensee/Purchaser
shall act in accordance with the directions of the regulatory taxing agencies
and shall deduct and remit such monies as shall be required.
12.2 Licensor/Seller hereby acknowledges that the Licensee/Purchaser shall
have discharged its payment obligations if it remits any monies otherwise
payable pursuant to this Agreement less such amounts paid or payable pursuant to
Paragraph 12.1 together with payment details.
12.3 The Licensor/Seller shall act in accordance with the directions of the US
Federal, Washington State Taxation Office and the appropriate export licensing
agencies and shall consequently deduct and remit to same such monies as shall be
required.
12.4 Licensee/Purchaser hereby acknowledges that the Licensor/Seller shall
have discharged its payment obligations if it remits any monies otherwise
payable pursuant to this Agreement less such amounts paid or payable pursuant to
Paragraph 12.3 together with payment details.
13. Assignment
The Licensee/Purchaser may not assign or attempt to assign any right arising out
of this Agreement unless the Licensee/Purchaser:
13.1 Is not in breach of this Agreement.
13.2 Ensures that the Assignee assumes all of the Licensee/Purchasers
obligations under this Agreement.
13.3 Obtains the prior written approval of Licensee/Purchaser, which approval
will not be unreasonably withheld.
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14. Waiver
The failure by either party at any time to insist on performance of any
provision of this Agreement is not a waiver of its rights at any later time to
insist on performance of that or any other provision of this Agreement.
15. Notice
15.1 A party notifying or giving "Legal Notice" under this Agreement must
notify:
15.1.1 In writing;
15.1.2 Addressed to the address of the recipient specified in this
Agreement or as altered by notice given in accordance with this Agreement; and
15.1.3 Hand delivered or sent by pre-paid airborne package delivery to
that address.
15.2 The Legal Notice given shall be deemed received:
15.2.1 If hand delivered, on the date of delivery; and
15.2.2 If sent by pre-paid airborne package delivery on the date of
delivery.
15.2.3 Parties may give a courtesy notice by facsimile transmission;
however, such notice shall not be Legal Notice under this agreement.
16. Severability
The parties agree:
16.1 To apply a construction to each provision of this Agreement that creates a
legal and enforceable provision.
16.2 That any legal unenforceable provisions shall be severed from this
Agreement and will not affect the continued operation of the remaining
provisions.
16.3 To use their best endeavors to replace any severed provision with a
provision having a commercial import as close as possible to the severed
provision.
17. General
17.1 The Licensor/Seller and the Licensee/Purchaser will jointly cooperate in
the fulfillment of the objectives and the terms of the agreement.
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17.2. In implementing the functional and operational activities of this
agreement the parties will comply with the laws of all governments and
regulatory authorities which hold jurisdiction over these activities, and will
jointly develop the plans and procedures which will fulfill the objectives of
this agreement.
17.3 Headings are for ease of reference only and do not affect the construction
of this Agreement.
17.4. This Agreement constitutes the entire understanding and agreement among
the parties hereto with respect to the subject matter hereof and there are no
agreements, understandings, restrictions, representations or warranties among
the parties other than those set forth herein.
17.5 If litigation be brought to enforce the terms of this Agreement by any
party hereto, the prevailing party to such litigation shall be entitled to
recover from the other party reasonable attorneys' fees as well as the costs of
suit incurred.
17.6 This Agreement may be executed in several counterparts, and as executed
shall constitute one Agreement binding upon all parties hereto, notwithstanding
that all parties are not signatory to the original, or to the same counterpart.
18. Governing Law
This Agreement is governed by and shall be interpreted in accordance with the
laws of the State of Washington, USA.
19. Entire Agreement
This Agreement, including its Exhibits and Attachments constitutes the entire
agreement between the parties as to its subject matter and supersedes all prior
representations and agreements in connection with that subject matter, and may
only be altered in writing which is executed by the parties. The executing
parties represent and warrant they have the power and authority to execute this
agreement on behalf of the represented party. The warranties expressed and
implied shall survive the expiration and termination of this agreement.
//
//
//
//
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IN WITNESS WHEREOF THE PARTIES have executed this Agreement on the day, month
and year herein before mentioned.
Licensee/Purchaser:
/s/ GLENN L. GEARHART
- --------------------------------
Mr. Glenn L. Gearhart, President
AFC California, Inc.
Licensor/Seller:
/s/ WM E. AMOUR
- ----------------------------
Mr. William Amour, President
Amour Fiber Core, Inc.
EXHIBIT A
EQUIPMENT SUPPLIED BY SELLER
The equipment to be supplied by Seller will be defined by purchase orders, which
will be negotiated by the parties and attached to this agreement as part of this
exhibit.
EXHIBIT B
EQUIPMENT SUPPLIED BY PURCHASER
Purchaser will provide a physical site, buildings, storage areas, utility
services, labor and raw materials for manufacturing.
Operational Management:
- -----------------------
The Purchaser is responsible for supervision and administration of the business
operations including but not limited to shipping, receiving, sales, marketing,
accounting and all other activities and functions required to operate a
profitable and growth oriented business. These obligations include obtaining
and maintaining all licenses, permits and approvals to operate the business and
to import and export supplies, equipment and products.
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EXHIBIT C
DELIVERY SCHEDULES AND PAYMENTS
Delivery of Equipment and Services:
- -----------------------------------
Upon receipt of the initial purchase payment and the sublicense fee the Seller
will, under individual purchase order construct and assemble the equipment and
prepare the training package for delivery to the Purchaser.
During the planning phase of the Purchaser's plant the Seller will review plans
and the site design and aid the Purchaser in assuring the buildings and site
will accommodate the equipment. During this planning phase a representative of
the Seller will visit the proposed manufacturing site for inspection and
coordination.
Purchaser will provide all labor and any special equipment, including forklifts
and cranes required to unload and position the equipment for installation. As
equipment manufacturing and testing is completed, partial shipments will be sent
and installed at Purchasers facility.
Compensation for Delivery of Equipment and Service,
- --------------------------------------------------
Upon placement of each order for purchase of the manufacturing plant the
Purchaser will pay Seller seventy percent (70%) of the purchase price of the
equipment. The second installment of the purchase payment of fifteen percent
(15%) of the purchase price is due and payable upon arrival of the equipment at
the Purchaser's site. The balance of the purchase price, (15%) of the purchase
price, is due and payable upon completion of operational testing of the
installed equipment, and training.
Compensation for Royalty Based Sales of Products,
- ------------------------------------------------
Purchaser will compute the US Dollar amount of royalty payment due the Seller at
the end of each month and within 20 business days of the end of the month
deposit the amount into a Seller maintained bank account, which will be
established for the purpose of receiving these deposits.
Purchaser will allow the Seller or his authorized representative access to the
books and records of the Purchaser during business hours and upon reasonable
notice. Purchaser will maintain books and records, which will accurately report
sales from which Sellers royalty payments can be computed.
Seller shall receive a royalty fee equal to five percent (5%) percent of the
Adjusted Gross Receipts of all products sold by the Purchaser which are based or
derived form the licensed process. This royalty fee is waived as to all
products, which are sold to the Seller.
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EXHIBIT D
LICENSING RIGHTS
(Confidential and Private)
(Do Not Distribute)
The sublicense right, to manufacture and sell the products which are the result
of the proprietary manufacturing process is subject to the terms of the License
Agreement and Plant Equipment Purchase Agreement, a non-exclusive right as to
the world with the exclusion of Australia and New Zealand for all products
except railroad ties and highway guard rail posts. The sales of products will
remain a non-exclusive right during the term of the agreement.
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EXHIBIT E
COMMITMENT DATE: July 31, 1997
AFC CORPORATE NON-DISCLOSURE AGREEMENT
This Agreement is entered into and made effective as of the date set forth
above, by and between Amour Fiber Core Inc., a Washington corporation,
(hereinafter "AFC"), and the Participant identified below (hereinafter
"Participant") and applies worldwide. Unless the Participant indicates that
this Agreement will apply to the Participant's entire company or only to a
specific division or location of a company, this Agreement will apply to the
Participant.
THE PARTIES AGREE AS FOLLOWS:
1. Confidential Information Transmittal Form. The confidential, propriety and
------------------------------------------
trade secret information of the disclosing party (hereinafter "Confidential
Information") provided hereunder is that information described in the
Confidential Information Transmittal Record ("CITR") executed from time to time
hereafter. CITRs are subject to the terms of this Agreement. CITRs will be
executed by the parties prior to the disclosure of Confidential Information.
All information described in a CITR and marked with a "confidential",
"proprietary", or similar legend, will be deemed Confidential Information. All
Confidential Information received from the disclosing party will be in tangible
form. To be considered Confidential Information, verbal disclosures must be
reduced to writing, marked "confidential" and delivered to the receiving party
within thirty (30) days. The CITR will indicate the disclosing party, a
description of the Confidential Information disclosed, the names of the
representatives of the parties and the date when the disclosures covered by the
CITR commenced.
2. Obligations of Receiving Party. The receiving party will not disclose
-------------------------------
Confidential Information to any third party without the prior written approval
of the disclosing party. AFC and Participant may disclose Confidential
Information as defined herein to their subsidiaries, parent and sister
companies, provided each such entity agrees to the terms of this Agreement, has
a need to know, and the receiving party agrees to be liable for breach of any
such entity. The receiving party will maintain the Confidential Information
with at least the same degree of care that the receiving party uses to protect
its own confidential and proprietary information, but no less than a reasonable
degrees of care under the circumstances. The receiving party will neither
disclose nor copy Confidential Information except as necessary for its employees
with a need to know. Any copies, which are made, will be identified as
belonging to the disclosing party and marked "confidential", "proprietary" or
with a similar legend.
3. Period of Non-Assertion. Unless a shorter period is stated in the
------------------------
applicable CITR, the disclosing party will not assert any claims against the
receiving party for disclosures of Confidential Information made more that
five (5) years from the date of the CITR.
4. Termination of Obligation of Confidentiality. The receiving party will not
--------------------------------------------
be liable for the disclosure of any Confidential Information, which is:
(a) in the public domain other than by a breach of this Agreement on the part
of the receiving party; or
(b) rightfully received from a third party without any obligation of
confidentiality; or
(c) rightfully known to the receiving party without any limitation on use or
disclosure prior to its receipt from the disclosing party; or
(d) independently developed by employees of the receiving party; or
(e) generally made available to third parties by the disclosing party without
restriction on disclosure.
5. Title. Title or the right to possess Confidential Information as between
------
the parties will remain in the disclosing party.
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6. No Obligation of Disclosure. Neither party has any obligation to disclose
----------------------------
Confidential Information to the other. Either party may, at any time, (a) cease
giving Confidential Information to the other party without any liability, and
/or (b) request in writing return of Confidential Information previously
disclosed.
7. Termination and Duty to Return. Either party may terminate this Agreement
-------------------------------
at any time without cause upon written notice to the other party. However, all
obligations of confidentially will survive the termination of this Agreement.
In the event this Agreement is terminated, and the disclosing party so requests
in writing, the receiving party will promptly return or destroy (and certify
destruction of) all Confidential Information which it received from the
disclosing party along with all copies which it made.
8. General Terms.
--------------
(a) This Agreement is neither intended to nor will it be construed as creating
a joint venture, partnership or other form of business association between the
parties, nor an obligation to buy or sell products using or incorporating the
Confidential Information, nor as creating an implied or express license grant
from either party to the other.
(b) The failure of either party to enforce any right resulting from breach of
any provision of this Agreement by the other party will not be deemed a waiver
of any right relating to a subsequent breach of such provision or of any other
right hereunder.
(c) This Agreement will be governed by the laws of the State of Washington,
USA.
(d) This Agreement, any accompanying CITR and CITRs executed from to time
hereafter which incorporate the terms of this Agreement, constitutes the entire
agreement, written or verbal, between the parties with respect to the
disclosure(s) of Confidential Information described in each CITR. This Agreement
may not be amended except in a writing signed by a duly authorized
representative of the respective parties. Any other agreements between the
parties, including non-disclosure agreements, will not be affected by this
Agreement.
AGREED: PARTICIPANT: /s/ AFC California Inc
AMOUR FIBER CORE INC. -------------------------------
1120 E. Stevens, PO Box 42 (Company Name Div., Sub, if applicable)
Sultan, WA, USA 98294 19671 Beach Blvd Ste 403
Tel: (360) 793-0146 -------------------------------------------
Fax: (360) 793-7955 (Address)
Huntington Beach
-------------------------------------------
(City)
CA 92648 USA
-------------------------------------------
(State) (Zip) (Country)
/s/ WM E AMOUR /s/ GLENN L. GEARHART
- ------------------------- ---------------------------------------------
Signature (Pres. or V.P.) Signature of Authorized Party (Pres. or V.P.)
/s/ WILLIAM E. AMOUR /s/ GLENN L. GEARHART
- -------------------------- ---------------------------------------------
Printed Name Printed Name
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EXHIBIT F
Definition of Adjusted Gross Receipts
16
