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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------
FORM 10-Q/A
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the Quarter Period Ended March 31, 1998
Commission File No. 0-29664
SOLUCORP INDUSTRIES LTD.
------------------------------------------------------
(Exact name of Registrant as specified in its Charter)
YUKON N/A
------------------------------ -------------------
(State or jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
250 WEST NYACK ROAD, WEST NYACK, NY 10994
- --------------------------------------- ----------
(Address of Principal Executive Office) (Zip Code)
Registrant's telephone number, including area code:
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(914) 623-2333
Former name, former address and former fiscal year,
if changed since last report:
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None
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for a shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes [X] No [ ]
,
As of May 19, 1998, there were 18,847,521 shares of Common Stock, no par value
outstanding.
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<PAGE>
BASIS OF PRESENTATION
The following unaudited financial statements have been prepared in
accordance with generally accepted accounting principles for interim financial
information without audit. In the opinion of management, all adjustments
(consisting of normal recurring accruals) considered necessary for a fair
presentation have been included. These unaudited statements should be read in
conjunction with the audited financial statements of the Company and notes
thereto included in the Company's Transition Report for the six month period
ended December 31, 1997. The results of operations for the three months ended
March 31, 1998 are not necessarily indicative of the results which may be
expected for the full year ending December 31, 1998.
FORWARD LOOKING STATEMENTS
Certain matters discussed herein may constitute forward-looking statements
within the meaning of the Private Securities Litigation Reform Act of 1995 and
as such may involve risks and uncertainties. These forward-looking statements
relate to, among other things, expectations of the business environment in which
the company operates, projections of future performance, perceived opportunities
in the market and statements regarding the Company's mission and vision. The
Company's actual results, performance, or achievements may differ significantly
from the results, performances or achievements expressed or implied on such
forward-looking statements. For discussion of the factors that might cause such
a difference, see "Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations."
<PAGE>
PART I-FINANCIAL INFORMATION
ITEM 1: FINANCIAL STATEMENTS
SOLUCORP INDUSTRIES LTD
CONSOLIDATED STATEMENT OF OPERATIONS AND DEFICIT
(UNAUDITED - PREPARED BY MANAGEMENT)
(IN U.S. DOLLARS)
Three Months Ended
March 31,
----------------------------
1998 1997
------------ ------------
Revenues
Environmental clean-up and waste disposal $ 505,151 $ 279,191
Training Institute 7,716 5,830
------------ ------------
512,867 285,021
------------ ------------
Cost of Sales and Revenue
Environmental clean-up and waste disposal 445,122 266,078
Training Institute 2,964 2,230
Inventory storage costs 96,815 17,255
------------ ------------
544,901 285,563
------------ ------------
Gross Margin (32,034) (542)
Investment and Other Income 63,546 1,500
License fees 545,454 0
------------ ------------
576,966 958
------------ ------------
Expenses
Administrative and general 652,904 609,607
Corporate development and marketing 114,026 101,067
Depreciation and amortization 69,516 81,723
Research and development 52
------------ ------------
836,446 792,449
------------ ------------
Earnings (loss) from operations (259,480) (791,491)
------------ ------------
Earnings (loss) for the period (259,480) (791,491)
Deficit, beginning of period (13,247,738) (10,599,949)
------------ ------------
Deficit, end of period ($13,507,218) ($11,391,440)
============ ============
Earnings (loss) per share ($0.01) ($0.05S)
============ ============
The accompanying notes are an integral part of this statement.
<PAGE>
SOLUCORP INDUSTRIES LTD
CONSOLIDATED BALANCE SHEET
(IN U.S. DOLLARS)
March December
31, 1998 31, 1997
------------ ------------
(Unaudited)
ASSETS
Current Assets
Cash $ 134,825 $ 26,646
Accounts receivable 1,587,097 672,791
License fees 136,364 490,910
Loan receivable 25,000 50,000
Due from related parties 1,687,761 1,981,377
Other receivables 51,232 100,872
Inventories 1,194,894 784,815
Prepaid expenses 494,778 816,495
------------ ------------
5,311,951 4,923,906
Long Term Investments 373,939 368,844
Capital Assets 341,648 350,663
Waste Disposal Rights 1,570,078 1,624,219
------------ ------------
TOTAL ASSETS $ 7,597,616 $ 7,267,632
============ ============
LIABILITIES
Current Liabilities
Accounts payable & accrued liabilities $ 981,679 $ 868,198
Loans payable 271,180 270,722
------------ ------------
1,252,859 1,138,920
Due on waste disposal rights 1,265,625 1,265,625
------------ ------------
2,518,484 2,404,545
------------ ------------
SHAREHOLDERS EQUITY
Share capital 18,610,765 18,135,240
Deficit (13,507,218) (13,247,738)
------------ ------------
5,103,547 4,887,502
Less: Cost of 8,000 shares held by
company's subsidiary (24,415) (24,415)
------------ ------------
5,079,132 4,863,087
------------ ------------
TOTAL LIABILITIES AND
SHAREHOLDERS EQUITY $ 7,597,616 $ 7,267,632
============ ============
The accompanying notes are an integral part of this statement.
<PAGE>
SOLUCORP INDUSTRIES LTD
CONSOLIDATED STATEMENT OF CASH FLOWS
(UNAUDITED - PREPARED BY MANAGEMENT)
(IN U.S. DOLLARS)
Three Months Ended
March 31,
----------------------
1998 1997
--------- ---------
CASH PROVIDED BY (USED IN)
Operating activities
Net profit (loss) for the period ($259,480) ($791,491)
Items not involving cash:
Depreciation & amortization 69,516 81,723
--------- ---------
Funds provided (used) from operations (189,964) (709,768)
Non-cash working capital changes (485,002) (22,777)
--------- ---------
Cash provided by (used in) operating activities (674,966) (732,545)
--------- ---------
Financing activities
Issue of common shares 475,525 709,837
Due from related parties 293,616 (50,035)
Loans receivable 25,000
Loans payable 458
--------- ---------
Cash provided by (used in) financing activities 794,599 659,802
--------- ---------
Investment activities
(Increase) decrease in capital assets (6,360) (3,487)
(Increase) decrease in long-term investments (5,094) (3,212)
--------- ---------
Cash provided by (used in) investment
activities (11,454) (6,699)
--------- ---------
Increase (decrease) in cash position 108,179 (79,442)
Cash position, beginning of period 26,646 10,451
--------- ---------
Cash position, end of period $ 134,825 ($ 68,991)
========= =========
The accompanying notes are an integral part of this statement.
<PAGE>
SOLUCORP INDUSTRIES LTD.
NOTES TO FINANCIAL STATEMENTS
THREE MONTH PERIODS ENDED MARCH 31, 1998 & 1997
- --------------------------------------------------------------------------------
1. Significant Accounting Policies
a) Generally Accepted Accounting Principles
The consolidated financial statements have been prepared in
accordance with accounting principles generally accepted in
Canada, which differ in some respects from those in the United
States. Except as disclosed in note 21, no differences have been
reported as they are not considered significant.
b) Basis of Consolidation
The consolidated financial statements include the accounts of the
Company and its subsidiaries. At March 31, 1998 the Company's
subsidiaries and its percentage equity interest in each are as
follows:
ESM Industries (Canada) Inc. 100%
World Travel Plazas Inc. 100%
World Tec Equities Inc. 100%
EPS Environmental, Inc. 100%
Environmental Training Institute Inc.
(incorporated in the US) 100%
c) Cash and Cash Equivalents
For purposes of balance sheet classification and the statements
of cash flows, the Company considers all highly liquid
investments purchased with an original maturity of three months
or less to be cash equivalents.
d) Estimates
The preparation of financial statements in conformity with
generally accepted accounting principles requires management to
make estimates and assumptions that affect the reported amount of
assets and liabilities at the date of the financial statements
and the reported amounts of revenue and expenses during the
reporting period. Actual results could differ from those
estimates.
e) Fair Value of Financial Instruments
The carrying amounts reported in the balance sheets for cash and
cash equivalents, accounts receivable, loans and other
receivables, accounts payable and accrued liabilities and loans
payable approximate fair market value because of the immediate or
short-term maturity of these financial accounts. The fair values
of the long-term investments are not readily determinable due to
uncertainties in their realization; however, where available, the
quoted market prices have been disclosed. The fair value of the
amount due on the waste disposal rights is not determinable due
to uncertainty regarding payment.
<PAGE>
SOLUCORP INDUSTRIES LTD.
NOTES TO FINANCIAL STATEMENTS
THREE MONTH PERIODS ENDED MARCH 31, 1998 & 1997
- --------------------------------------------------------------------------------
f) Inventory
Inventory is valued at the lower of cost or net realizable value.
Cost is determined on a first-in, first-out basis.
g) Long-term Investments
Investments are recorded at cost less a provision for permanent
impairment in value.
h) Capital Assets
Capital assets are recorded at cost. Amortization is provided
over the estimated useful lives of the assets on the following
bases:
Computer 30% declining balance
Furniture and office equipment 20% declining balance
Leasehold improvements 5 years straight-line
Remediation equipment 30% declining balance
Patent costs 10 years straight-line
i) Waste Disposal Rights
Waste disposal rights are recorded at cost net of amortization.
These rights are being amortized at the greater of $10 per ton of
waste delivered or $216,500 per year. The Company conducts an
annual review of the carrying value to ensure it is not in excess
of the estimated recoverable amount of this asset (see note 10).
Any excess amount identified as a result of this review is
charged to income in that year as a write-down of the carrying
value.
j) Reporting Currency and Translation of Foreign Currency
The Company has adopted the United States dollar as its reporting
currency for its financial statements prepared after March 31,
1996. The United States dollar is the currency of the primary
economic environment in which the Company conducts its business,
and is considered the appropriate functional currency for its
operations. Accordingly, the financial statements of the Company
have been translated using the temporal method with translation
gains and losses included in earnings. Under this method the
operations of the Company have been converted into U.S. dollars
at the following rates of exchange:
(i) Monetary assets and liabilities - at the rate of exchange
prevailing at the balance sheet date.
(ii) All other assets and liabilities - at the exchange rate
prevailing at the time of the transactions.
<PAGE>
SOLUCORP INDUSTRIES LTD.
NOTES TO FINANCIAL STATEMENTS
THREE MONTH PERIODS ENDED MARCH 31, 1998 & 1997
- --------------------------------------------------------------------------------
(iii) Revenue and expenses - at the average exchange rates
prevailing during the period.
k) Share Issue Costs
Share issue costs are charged directly to the deficit.
l) Revenue Recognition
Revenue from on-site remediation projects is recognized using the
percentage of completion method of accounting. Under this method
contract revenue is determined by applying to the total estimated
income on each contract, a percentage which is equal to the ratio
of contract costs incurred to date, to the most recent estimate
of total costs which will have to be incurred upon the completion
of the contract. Costs and estimated earnings in excess of
billings represents additional earnings over billings, based upon
the percentage completed, as outlined above. Similarly, billings
in excess of costs and estimated earnings represent excess of
amounts billed over income recognized. Provision for estimated
losses on uncompleted contracts are made in the period in which
such losses are determined. At March 31, 1998 there were no
on-site projects in process.
Revenue from in-line remediation projects is recognized using the
completed contract method. Under this method revenue is
recognized when work is completed and invoiced.
Revenue from license fees, option payments and royalties are
recognized as the accrue in accordance with the terms of the
relevant agreements.
m) Research and Development
Research and development expenditures less related government
grants are charged to operations.
n) Earnings (Loss) Per Share
The earnings (loss) per share is computed using the
weighted-average number of common shares outstanding during the
year.
o) Accounting for Stock-Based Compensation
In October 1995 the FASB issued SFAS No. 123 "Accounting for
Stock-Based Compensation". The statement encourages all entities
to adopt a new method of accounting to measure compensation cost
of all employee stock compensation plans based on the estimated
fair value of the award at the date it is granted. Companies are,
however, allowed to continue to measure compensation cost for
those plans using the intrinsic value based method of accounting,
which generally does not result in compensation expense
recognition for most
<PAGE>
SOLUCORP INDUSTRIES LTD.
NOTES TO FINANCIAL STATEMENTS
THREE MONTH PERIODS ENDED MARCH 31, 1998 & 1997
- --------------------------------------------------------------------------------
plans. Companies that elect to remain with the existing
accounting are required to disclose in a footnote to the
financial statement pro forma net income and,
if presented, earnings per share, as if SFAS No. 123 had been
adopted. The accounting requirements of SFAS No. 123 are
effective for transactions entered into in fiscal years that
begin after December 15, 1995; however, companies are required to
disclose information for awards granted in their first fiscal
year beginning after December 15, 1995. Currently, the Company's
stock-based compensation plan is accounted for using Canadian
generally accepted accounting principles similar to the intrinsic
value method prescribed by APB No. 25. The Company is in the
process of computing the effect of adopting SFAS No. 123 and has
not yet made a decision on whether to adopt the U.S. accounting
policy for the fiscal period March 31, 1998. Management believes
the financial impact of adopting SFAS No. 123 would be
immaterial.
2. Accounts Receivable
March 31, December 31,
1998 1997
---------- --------
Tristate Restoration Company,
Inc. (note 7) $ 299,665 $293,361
Smart International Ltd. 1,125,734 203,796
Other 202,805 216,741
---------- --------
1,628,204 713,898
Allowance for bad debts (41,107) (41,107)
---------- --------
$1,587,097 $672,791
========== ========
3. License Fees
By a letter of intent dated June 4, 1997 and an agreement dated
September 15, 1997 the Company granted to Smart International
Ltd. (Smart) the right to manufacture chemicals for the Company
and the right to exclusively engage in remediation projects in
China using the Company's technology. The agreement is for a
ten-year term commencing from June 1, 1997 with an option to
renew for a further 10 years. As consideration, Smart has agreed
to pay an annual license fee of $2,000,000 per year plus a
royalty of $5 per ton for each ton of processed material in
excess of 100,000 tons per contract year. At March 31, 1998 the
Company has received $500,000 of the $1,500,000 billed towards
the license fee and has accrued an amount receivable of $136,364
for license fees earned. No royalties were payable.
<PAGE>
SOLUCORP INDUSTRIES LTD.
NOTES TO FINANCIAL STATEMENTS
THREE MONTH PERIODS ENDED MARCH 31, 1998 & 1997
- --------------------------------------------------------------------------------
4. Loan Receivable
March 31, December 31,
1998 1997
------- -------
Loan receivable, 5% per annum, due
November 30, 1997 $50,000 $50,000
======= =======
Management expects the balance plus interest to be repaid in full
in 1998.
5. Due From Related Parties
Advances, primarily to directors, and employees related to
directors in the amount of $1,687,761 (December, 1997 -
$1,981,377) bear interest at 8.50%, are secured with marketable
securities (market value at March 31, 1998 - $ 880,416) and have
no specific terms of repayment.
6. Inventories
March 31, December 31,
1998 1997
---------- --------
Raw Chemicals $1,137,515 $731,576
Blended chemicals 53,562 13,626
Goods for resale 3,817 39,613
---------- --------
$1,194,894 $784,815
========== ========
7. Prepaid Expenses
March 31, December 31,
1998 1997
---------- --------
Employment agreement (note 7a) $250,000 $250,000
Deposit on inventory purchase (note 7b) -- 244,250
Consulting agreements (note 7c) 199,646 283,911
Rental expense 45,132 28,334
Other -- 10,000
---------- --------
$ 494,778 $816,495
========== ========
<PAGE>
SOLUCORP INDUSTRIES LTD.
NOTES TO FINANCIAL STATEMENTS
THREE MONTH PERIODS ENDED MARCH 31, 1998 & 1997
- --------------------------------------------------------------------------------
a) Employment agreement
During the fiscal year ended June 30, 1997 the Company was
negotiating with the shareholders of Tristate Restoration
Company, Inc. (Tristate) regarding the possible acquisition of
Tristate. Tristate is a New Jersey company specializing in the
removal of hazardous asbestos materials. As part of the
negotiations, the Company advanced 100,000 shares of its capital
stock. During the six months ended December 31, 1997 and
subsequent, negotiations continued resulting in the following:
(i) The Company made advances and provided other assistance to
Tristate to help it with its ongoing operations. These
advances are repayable on demand with interest at prime plus
1% and are secured by personal guarantees of the two
shareholders of Tristate and the assets of Tristate. As
further consideration, by an agreement dated November 7,
1997, Tristate agreed to pay the Company a portion of the
revenue collected from jobs for a period of two years from
June 1, 1997. As noted below, the agreement relating to the
revenue sharing was superseded after December 31, 1997.
However, Tristate has agreed to pay the Company $90,090 for
its share of the revenue which was included in operations
for that period. Subsequent to December 31, 1997, Tristate
made a direct assignment of one of its outstanding accounts
in the amount of $166,000 as further security for the
advances.
(ii) The Company entered into separate employment agreements with
each of the two shareholders of Tristate for a minimum term
of five years with an option to renew for another five
years. The 100,000 shares originally issued prior to June
30,1997, as noted above, are construed as part of the
compensation included under the terms of the employment
agreements. These employment agreements were dated April 8,
1998. The value of the shares issued ($250,000) will be
amortized over the five-year term commencing on April 8,
1998.
b) Deposits on Inventory Purchase
Subsequent to December 31, 1997 the $244,250 deposit was applied
to purchases of raw chemicals totaling $ 415,250.
c) Consulting Agreements
(i) The Company issued 50,000 shares at $4.50 per share related
to a consulting agreement which has a two-year term ending
November 19, 1999.
(ii) The Company issued 58,000 shares at a value of $101,000
related to a consulting agreement. The payment is for the
period June 1, 1997 to May 31, 1998.
<PAGE>
SOLUCORP INDUSTRIES LTD.
NOTES TO FINANCIAL STATEMENTS
THREE MONTH PERIODS ENDED MARCH 31, 1998 & 1997
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
8. Long-term Investments
March 31, December 31,
1998 1997
-------- --------
<S> <C> <C>
(a) 100,500 shares of Earthworks Industries Inc. plus accrued shares
of 40,259 (December 31, 1997 - 36,165) (note 11 and 18(d))
(Market value $66,438) $104,382 $ 99,287
(b) Convertible debenture from Travel Plaza Developments Inc. (Travel
Plaza). The Company elected on December 28, 1994 to convert the
Can $50,000 debenture into 250,000 shares of Travel Plaza. Final
regulatory approval for this conversion from the Alberta Stock
Exchange is still pending subject to their acceptance of a
financing arrangement and the approval of minority shareholders.
On August 21, 1996, pending the finalization of the required
financing to compute the project, construction has been
temporarily suspended and the stock of Travel Plaza has been
halted from trading. Due to these uncertainties, the Company has
written this investment down to a nominal value. 1 1
(c) Convertible loan to Cortina Integrated Waste Management Inc., a
subsidiary of Earthworks industries inc. (public company), due
September 5, 2000 with interest at 15% per annum. The Company is
entitled to convert all or a portion of the loan into shares of
Earthworks Industries Inc. at any time. During the term of this
loan, the Company has the right to offset royalty payments due to
Earthworks Industries Inc. against the loan balance. 208,821 208,821
(d) A 25% interest in John Beech Remediation
Limited (no market value). 1 1
(e) 70,000 shares of Global Technologies Inc.
(note 11). 60,734 60,734
-------- --------
$373,939 $368,844
======== ========
</TABLE>
<PAGE>
SOLUCORP INDUSTRIES LTD.
NOTES TO FINANCIAL STATEMENTS
THREE MONTH PERIODS ENDED MARCH 31, 1998 & 1997
- --------------------------------------------------------------------------------
9. Capital Assets
March 31, December 31,
1998 1997
-------- --------
Computers $ 24,047 $ 24,047
Furniture and office equipment 100,940 100,940
Remediation equipment 426,630 426,630
Leasehold improvements 15,927 15,927
Incorporation costs 688 688
Patent costs 53,177 53,177
-------- --------
621,409 621,409
Less: Accumulated amortization 279,761 270,746
-------- --------
$341,648 $350,663
======== ========
10. Waste Disposal Rights
During the year ended June 30, 1995, the Company entered into a one-year
agreement effective from August 1, 1994 with a non-related public company,
Thermo Tech Technologies inc. (Thermo Tech), to deliver 3,500 tons per
month of suitable organic waste to a bio-conversion facility located in
Corinth, New York at $55 per ton on a put or pay basis. The Company
delivered only approximately 5% of the waste contemplated under the
one-year agreement. The Corinth facility experienced technical start-up
problems and was shut down in July 1995 to correct an engineering design
problem. On September 14, 1995 and January 17, 1996 the Company and Thermo
Tech signed confirmation agreements which resulted in a ten-year extension
from the put or pay agreement to commence when either the Corinth facility
became operational, or as an alternative, when organic waste was delivered
to another Thermo Tech facility. The agreements obligated the Company to
pay an initial amount of $2,165,625 for the right to deliver 216,500 tons
of acceptable organic waste ($10 per ton) plus an additional $45 per ton
during the ten (10) year term of the agreement.
The Company paid Thermo Tech $900,000 of the initial amount leaving
$1,265,625 still to be paid. Thermo Tech was not able to renegotiate
acceptable lease terms with the landlord of the Corinth facility and is
currently planning to relocate the plant to a nearby site. The relocation
is not expected to be completed within the next year and as a result,
Thermo Tech has agreed that the unpaid amount of $1,265,625 is not due
until the relocated plant is operational. Accordingly the balance due is
reflected as a non-current payable. However, the Company expects to fully
recover the invested amount in waste disposal rights over the ten-year
contractual period by delivering waste to either the Corinth facility or an
alternative Thermo Tech facility.
The carrying value for the waste disposal rights represents a significant
portion of the Company's assets. Measurement of the recoverability of the
carrying value is based on an assessment of the waste disposal rates
currently existing in the New York and New Jersey areas, and at other areas
where Thermo Tech plants are located, and on the assumption that the
Corinth plant will be
<PAGE>
SOLUCORP INDUSTRIES LTD.
NOTES TO FINANCIAL STATEMENTS
THREE MONTH PERIODS ENDED MARCH 31, 1998 & 1997
- --------------------------------------------------------------------------------
successfully relocated and in operation in the near future. As of March 31,
1998, the Company has determined that no write-down is necessary. However,
it is reasonably possible, based on existing knowledge, that changes in
future conditions in the near term could require a material change in the
estimated recoverable amount.
11. Loans Payable
<TABLE>
<CAPTION>
March 31, December 31,
1998 1997
-------- --------
(Unaudited)
<S> <C> <C>
IDM Environmental Corp., 10.25%, payable in monthly installments of
$22,008 including principal and interest, maturing on July 1, 1998,
secured by the Company's treasury stock, 100,500 shares of
Earthworks Industries Ltd. (note 8a) and 70,000 shares of Global
Technologies Inc. (note 8a) held as investments by the Company.
$200,748 $200,748
Global Technologies Inc., due on demand ($100,000 Cdn). 70,432 69,974
-------- --------
$271,180 $270,722
======== ========
</TABLE>
<PAGE>
SOLUCORP INDUSTRIES LTD.
NOTES TO FINANCIAL STATEMENTS
THREE MONTH PERIODS ENDED MARCH 31, 1998 & 1997
- --------------------------------------------------------------------------------
12. Share Capital
a) Authorized:
200,000,000 common shares of no par value
b) Issued:
<TABLE>
<CAPTION>
Three Months Ended Three Months Ended
March 31, 1998 March 31, 1997
(Unaudited) (Unaudited)
------------------------------- --------------------------------
Shares Amount Shares Amount
---------- ----------- ---------- -----------
<S> <C> <C> <C> <C>
Balance, beginning 18,652,497 $18,135,240 15,062,463 $11,472,295
Issued pursuant to
Stock options 195,500 419,525 375,000 652,140
Warrants -- -- 51,516 57,697
---------- ----------- ---------- -----------
419,525 426,516 709,837
Allotted for cash 32,000 56,000 -- --
Balance, ending 18,879,997 $18,610,765 15,488,979 $12,182,132
========== =========== ========== ===========
</TABLE>
<TABLE>
<CAPTION>
c) During the three-month period ended March 31, 1998 the Company
granted employees, directors and other individuals associated with
Company stock options to acquire up to 465,000 shares at $3.50 per
share. At March 31, 1998 stock options were outstanding as
follows:
Shares Exercise Price Expiration Date
-------------- --------------- --------------
<S> <C> <C>
250,000 $1.38 December 21, 1999
57,500 $1.75 July 13, 2000
83,500 $1.75 September 12, 2000
53,500 $1.75 January 6, 2002
1,889,329 $1.75 June 9, 2002
882,210 $3.47 November 4, 2002
465,000 $3.50 February 19, 2003
<CAPTION>
d) At March 31, 1998 warrants were outstanding as follows:
Shares Exercise Price Expiration Date
-------------- --------------- --------------
<S> <C> <C>
160,000 $1.75 - $2.00 June 25, 1999
750,000 $2.75 September 10, 2000
25,000 $4.00 April 4, 2001
300,000 $7.50 June 3, 2001
</TABLE>
<PAGE>
SOLUCORP INDUSTRIES LTD.
NOTES TO FINANCIAL STATEMENTS
THREE MONTH PERIODS ENDED MARCH 31, 1998 & 1997
- --------------------------------------------------------------------------------
e) At March 31, 1998, 1,675,000 (March 31, 1997 - 1,675,000) common
shares were held in escrow.
13. Income Taxes
At December 31, 1997, the Company had accumulated tax losses aggregating
$9,636,000, which may be carried forward and applied against taxable income
in future years up to 2003. The Company does not record the income tax
benefit of these losses.
14. Subsequent Events
(a) On April 8, 1998, as part of a employment agreement (see note 7 (ii)),
the Company gave one of the shareholders of Tristate Restoration Company, Inc.
(Tristate) 300,000 Solucorp options at a price(s) to be determined.
(b) On May 1, 1998 the Company was informed by the Securities and Exchange
Commission (SEC) that it had temporarily suspended the over the counter trading
in the securities of the Company from May 1, 1998 through May 14, 1998. The
suspension was based upon questions that were raised concerning the accuracy and
adequacy of the public information about various aspects of the Company's
business. The Company is confident that it will demonstrate to the satisfaction
of the SEC that it acted properly.
<PAGE>
<TABLE>
<CAPTION>
SOLUCORP INDUSTRIES LTD.
NOTES TO FINANCIAL STATEMENTS
THREE MONTH PERIODS ENDED MARCH 31, 1998 & 1997
- ------------------------------------------------------------------------------------------------------------------------------------
15. Segmented Information
US Services & Consolidated Totals
Products Canada Total
------------- -------- -----------------
<S> <C> <C> <C>
(a) Three Months Ended March 31, 1998:
(Unaudited)
Revenue $512,867 $ -- $ 512,867
License Fees 545,454 -- 545,454
Cost of sales 544,901 -- 544,901
Operating earnings (loss)
513,420 -- 513,420
Administrative and general 610,353 42,551 652,904
Corporate development and marketing 100,665 13,361 114,026
Amortization 63,156 6,360 69,516
Segmented loss $(260,754) $(62,272) (323,026
---------- --------
Unallocated:
Investment and other income 63,546
----------
LOSS FOR THE PERIOD $ (259,480)
==========
IDENTIFIABLE ASSETS $6,799,095 $798,521 $7,597,616
========== ======== ==========
(b) Three Months Ended March 31, 1997:
(Unaudited)
Revenue $285,021 $ -- $285,021
Cost of sales 285,563 -- 285,563
---------- -------- ----------
Operating earnings (loss) (542) -- (542)
Administrative and general 562,171 47,436 609,607
Corporate development and marketing 95,939 5,128 101,067
Research and development -- 52 52
Amortization 81,723 -- 81,723
---------- -------- ----------
Segmented loss $(740,375) $(52,616) (792,991)
---------- --------
Unallocated:
Investment and other income 1,500
----------
LOSS FOR THE PERIOD $(791,491)
==========
IDENTIFIABLE ASSETS $2,817,389 $407,796 $3,225,185
========== ======== ==========
</TABLE>
<PAGE>
SOLUCORP INDUSTRIES LTD.
NOTES TO FINANCIAL STATEMENTS
THREE MONTH PERIODS ENDED MARCH 31, 1998 & 1997
- --------------------------------------------------------------------------------
16. Contingencies
a) Pending Litigation
During May, 1998, the Company and two of its officers were served with
a putative class action complaint alleging purported violations of the
federal securities laws [GESTEN v. SOLUCORP INDUSTRIES LTD., et al.,
98 Civ. 3248 (LMM) (SDNY)]. The substantive allegations of the
complaint consist of no more than extensive quotations from prior
statements purportedly made by the Company and general allegations
that such statements were false and misleading. The Company has
reviewed its prior statements and is convinced that none of such
statements are false or misleading. The Company and the officers named
in the complaint, after consultation with their attorneys, believe
that the action filed against them has no merit and have determined to
vigorously defend the action.
b) Waste Disposal Rights
Recoverability of the waste disposal rights is subject to the
realization of management's assumptions as discussed in note 10.
17. Related party Transactions
During the three months ended March 31, 1998, the Company paid consulting
fees and salaries of $94,920 (March 31, 1997 - $ 89,673) to directors,
former directors and/or private companies controlled by directors and/or
individuals related to directors.
18. Commitments
a) The Company has a lease for the building it presently occupies in New
York which requires the following payments:
1998 $144,000
1999 $144,000
2000 $144,000
2001 $144,000
2002 and subsequent $ 24,000
b) The Company has entered into numerous non-exclusive finder's
agreements with third parties to promote the company's soil
remediation process. The company will pay between 1% and 7% for
commissions on gross revenues generated by the third parties. These
agreements expire between one and two years.
c) The Company entered into a finder's agreement with a third party to
raise capital for the Company through private placements. The Company
will pay a 5% commission on private placements raised directly or
indirectly by the third party. The agreement expires on September 27,
2000, with an option to renew for another five years.
<PAGE>
SOLUCORP INDUSTRIES LTD.
NOTES TO FINANCIAL STATEMENTS
THREE MONTH PERIODS ENDED MARCH 31, 1998 & 1997
- --------------------------------------------------------------------------------
d) The Company has agreed to pay royalties to Earthworks Industries Inc.
(Earthworks) (a Canadian public company) based on Cdn $1/ton of soil
remediated in Canada or the United States ($1/ton will be U.S. dollars
if soil is remediated in the United States). The Company will receive
one share for each $1 of royalty paid, to a maximum of 200,000 shares,
in minimum blocks of 50,000. These shares are accrued as the soil is
remediated. An additional $1 (Cdn or US) will be paid for each ton
remediated on contracts resulting from the efforts of Earthworks. The
Company has the right to offset royalty payments against the
convertible loan from Cortina Integrated Waste Management, Inc. (note
8(c)).
e) The Company entered into a consulting agreement with a third party to
provide business development and operational support. The Company will
pay the third party $3,000 per month plus any costs over and above the
monthly consulting fee. The agreement expires on October 1, 1998 with
an annual renewal option.
f) In October 1995 the Company entered into an exclusive licensing
agreement with a United Kingdom company for the U.K. company to
utilize the Company's soil remediation process and to market the
company's soil remediation technology in the U.K. The agreement
required an annual licensing fee and a royalty per ton of soil
remediated. This agreement will be superseded by a new agreement dated
August 1, 1997, when the U.K. company obtains an official listing on
the Alternative Investment Market. The Company also granted an option
for a twelve month period to the U.K. company for a similar licensing
agreement related to various European territories. Consideration
received for granting the option was $200,000. On December 10, 1997
the U.K. company advised its intention to exercise the option and to
proceed with agreements for France, Poland, Hungary and Portugal.
19. Comparative Figures
The Company changed its year-end to December 31. In accordance with SEC
guidelines the consolidated statement of operations and the consolidated
statement of cash flow for the three month period ended March 31, 1998 was
compared to the comparable period in 1997, whereas the consolidated balance
sheet at March 31, 1998 was compared to the previous year ended date of
December 31, 1997.
20. Economic Dependence
During the three months ended March 31, 1998, revenues of $ 183,355 and $
131,367 were earned from two customers, of which $51,638 and $Nil is
included in accounts receivable respectively.
License fees of $545,454 were recognized as disclosed in note 3.
21. Reconciliation to United States Generally Accepted Accounting Principles
As discussed in Significant Accounting Policies, these consolidated
financial statements are prepared in accordance with accounting principles
generally accepted in Canada.
<PAGE>
SOLUCORP INDUSTRIES LTD.
NOTES TO FINANCIAL STATEMENTS
THREE MONTH PERIODS ENDED MARCH 31, 1998 & 1997
- --------------------------------------------------------------------------------
Differences in accounting principles as they pertain to these consolidated
financial statements are as follows:
Marketable Securities
Under GAAP, the accounting for marketable securities depends on the
classification of securities as held to maturity, trading or available for
sale. The classification would be based on management's intent. Marketable
securities included in long-term investments (note 8) would be classified
as being available for sale. Under U.S. GAAP, such securities would be
recorded at fair value with any changes recorded in a separate component of
shareholder's equity. Realized gains or losses would be recorded on the
income statements. At March 31, 1998 the effect on the presentation of
long-term investment for U.S. GAAP purposes would not be material.
<PAGE>
SOLUCORP INDUSTRIES LTD.
Schedule of Administrative and General Expenses (US Dollars)
Three Month Periods Ended March 31, 1998 & 1997
March 31, March 31,
1998 1997
------------------------------ --------
U.S. Canada Total Total
-------- ------- -------- --------
Automobile $ 11,009 $ 0 $ 11,009 $ 9,343
Bad Debts 0 0 0 0
Bank charges and interest 3,795 78 3,873 11,560
Consulting and management fees 109,107 0 109,107 46,406
Foreign exchange (gain) loss 77,419 0 77,419 28,322
Insurance 15,864 0 15,864 11,258
Legal, accounting and audit 77,226 5,944 83,170 34,683
Office, printing and related 38,833 3,794 42,627 32,373
Rent 26,670 1,783 28,453 61,426
Salaries and wages 224,131 19,840 243,971 317,713
Telephone 18,153 2,801 20,954 30,460
Transfer and filing fees 0 403 403 529
Travel 15,721 333 16,054 25,534
-------- ------- -------- --------
$617,928 $34,976 $652,904 $609,607
======== ======= ======== ========
<PAGE>
Item 2: Management's Discussion and Analysis of Financial Condition
and Results of Operations
The following discussion should be read in conjunction with the consolidated
financial statements and notes thereto.
RESULTS OF OPERATIONS
THREE MONTHS ENDED MARCH 31, 1998 COMPARED TO THE THREE MONTHS
ENDED MARCH 31, 1997.
Aggregate revenue (environmental clean-ups and waste disposal projects, Training
Institute fees and license fees) increased to $1,058,321 from $285,021; an
increase of $773,300 or 271% for the three months ended March 31, 1998. This
resulted primarily from increased remediation activity and from the licensing
revenue for China.
Cost of sales increased $259,338 or 91%. Part of this increase was due to the
abnormally high inventory storage costs which increased from $17,255 to $96,815
or $79,560 due to the build-up in inventory for the anticipated increased
remediation activity in 1998. The remaining increase was essentially in line
with the volume related increases from environmental cleanups.
Gross Margin reflected losses of $32,034 and $542 for the three months ended
March 31, 1998 and 1997, respectively. At this point in the Company's
development, its project costs do not yet reflect the economy of scale needed
for a normal operation. In addition, the abnormal inventory storage costs and
non-billable treatability work at the current revenue level has hindered
profitability.
Investment and other income increased to $63,546 from $1,500; an increase of
$62,046. This increase resulted primarily from interest charged on related party
loans and from the Company's advances to Tristate for a joint venture project.
Selling, general and administrative expenses ("SG&A") increased $43,997 or 6% in
the three months ended March 31, 1998 when compared to the comparable period in
1997. This increase occurred primarily from increased legal activity related to
the Company's operations, and an increased foreign exchange loss; partially
offset by lower rent costs. The shift from in-house labor to outside consultants
essentially offset.
For the three months ended March 31, 1998 the Company reported a loss of
$259,480. However, this was $532,011 or 67% lower than the $791,491 loss
experienced in the comparable period in 1997. This reduced loss essentially
reflects the Company's attempt to bring its unit costs and other costs in line
with a more normal level of activity.
LIQUIDITY AND CAPITAL RESOURCES
At March 31, 1998, the Company had working capital of $4,059,092, an increase of
$274,106 or 7% from the $3,784,986 reflected at December 31, 1997. Within the
current
<PAGE>
assets significant increases occurred in cash, accounts receivable, and
inventories; whereas significant decreases occurred in unbilled license fees,
due from related parties and prepaid expenses. Within the current liabilities,
accounts payable reflected the only significant increase.
CASH FLOWS
During the three months ended March 31, 1998, the Company increased its cash
position $108,179 versus a decreased cash position of $79,442 in the comparable
period in 1997. In the current period, cash was provided mainly from the
issuance of the Company's capital stock and the repayment of related party
loans. This was used primarily to fund the current loss and the other operating
activities.
OTHER
The carrying value of the waste disposal rights ($1,570,078) at March 31, 1998,
represented a significant portion of the Company's assets. Measurement of the
recoverability of the carrying value was based on an assessment of the waste
disposal rates currently existing in the New York and New Jersey areas, and at
other areas where Thermo Tech plants are located, and on the assumption that the
relocation of the Corinth plant and/or some other Thermo Tech plants will be in
operation in the near future. However, it is reasonably possible, based upon
existing knowledge, that changes in future conditions in the near term could
require a material change in the estimated recoverable amount. Accordingly, the
Company is currently amortizing these rights $216,500 per year, which has left a
net amount of $304,453 at March 31, 1998.
In anticipation of significantly increased remediation activity in 1998, and due
to the relatively long lead time required to purchase one of the main chemical
ingredients in MBS, the Company continued to increase its inventory of this
chemical in the three months ended March 31, 1998. This was the primary reason
for the inventory increasing $410,079 from the $784,079 at December 31, 1997.
On May 1, 1998, the Company was informed by the Securities and Exchange
Commission (SEC) that it had temporarily suspended the over the counter trading
in the securities of the Company from May 1, 1998 through May 14, 1998. The
suspension was based upon questions that were raised concerning the accuracy and
adequacy of the public information about various aspects of the Company's
business. The Company is confident that it will demonstrate to the satisfaction
of the SEC that it acted properly.
PENDING LITIGATION
During May 1998 the Company and two of its officers were served with a putative
class action complaint alleging purported violations of the securities laws
[GERSTEN v SOLUCORP INDUSTRIES LTD, et al., 98 Civ. 3248 (LMM)(SDNY)]. The
substantive allegations of the complaint consist of no more than extensive
quotations from prior statements purportedly made by the Company and general
allegations that such statements were false and misleading. The Company has
reviewed its prior statements and is convinced that none of the statements are
false or misleading. The Company and the officers named in the complaint, after
consultation with their attorneys, believe that the action filed against them
has no merit and have determined to vigorously defend the action.
<PAGE>
PART II -- OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
During May 1998 the Company and two of its officers were served with a putative
class action complaint alleging purported violations of the securities laws
[GERSTEN v SOLUCORP INDUSTRIES LTD, et al., 98 Civ. 3248 (LMM)(SDNY)]. The
substantive allegations of the complaint consist of no more than extensive
quotations from prior statements purportedly made by the Company and general
allegations that such statements were false and misleading. The Company has
reviewed its prior statements and is convinced that none of such statements are
false or misleading. The Company and the officers named in the complaint, after
consultation with their attorneys, believe that the action filed against them
has no merit and have determined to vigorously defend the action.
ITEM 2. CHANGES IN SECURITIES AND USE OF PROCEEDS
(a) None
(b) None
(c) During the period covered by this report, the Company sold an aggregate
of 195,500 shares of common stock to officers, directors, employees and
consultants for cash consideration of $419,525.00 upon the exercise of stock
options which were granted before the Company was subject to the reporting
requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, as
amended. No commission was paid upon the exercise of the options nor was any
person acting as underwriter with respect to the sales. The offers and sales are
claimed to be exempt pursuant to Rule 781 under the Securities Act of 1933, as
amended in that such sales were offered and sold:
(1) pursuant to written option agreements issued prior to the time the
Company was subject to reporting obligations under the Exchange Act;
(2) the compensation options were granted for bona fide services
rendered not related to capital raising transactions; and
(3) the number of shares issued does not exceed 15% of the shares of
the Company's common stock outstanding nor does the amount received upon
the exercise of the options exceed $5,000,000 during the preceding 12
months.
(d) Not Applicable
ITEM 3. DEFAULTS UPON SENIOR SECURITIES
None
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None
ITEM 5. OTHER
On May 1, 1998, the Company was informed by the Securities and Exchange
Commission (SEC) that it had temporarily suspended the over the counter trading
in the securities of the Company from May 1, 1998 through May 14, 1998. The
suspension was based upon questions that were raised concerning the accuracy and
adequacy of the public information about various aspects of the Company's
business, The Company is confident that it will demonstrate to the satisfaction
of the SEC that it acted properly.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) The following exhibits are filed as part of this report:
4
<PAGE>
11 Statement Re: Computation of Earnings Per Share
27 Financial Data Schedule
99.1 Licensing Agreement dated March 20, 1998 between KBF Pollution
Management, Inc. and EPS Environmental, Inc. d/b/a Solucorp
Industries.
99.2 Agreement dated April 8, 1998 between M.H. Meyerson & Co., Inc.
and Solucorp Industries Ltd.
99.3 Finders Agreement dated April 22, 1998 between EPS Environmental,
Inc. d/b/a Solucorp Industries and Scopus Evaluation Services,
Inc.
99.4 Letter Agreement dated May 18, 1998 between KBF Pollution
Management, Inc. and Solucorp Industries Ltd. and Sommer &
Schneider LLP
(b) No reports on Form 8-K have been filed during the quarter for which
this report is filed.
5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Dated: May 21, 1998
SOLUCORP INDUSTRIES LTD.
By: /s/ PETER MANTIA
----------------------------------
Peter Mantia, President
By: /s/ VICTOR HERMAN
----------------------------------
Victor Herman, CFO
(Principal Accounting Officer)
6
<PAGE>
EXHIBIT INDEX
-------------
Exhibit No. Description
- ----------- -----------
11 Statement Re: Computation of Earnings Per Share
99.1 Licensing Agreement dated March 20, 1998 between KBF Pollution
Management, Inc. and EPS Environmental, Inc. d/b/a Solucorp
Industries
99.2 Agreement dated April 8, 1998 between M.H. Meyerson & Co.,
Inc. and Solucorp Industries Ltd.
99.3 Finders Agreement dated April 22, 1998 between EPS
Environmental, Inc. d/b/a Solucorp Industries and Scopus
Evaluation Services, Inc.
99.4 Letter Agreement dated May 18, 1998 between KBF Pollution
Management, Inc. and Solucorp Industries Ltd. and Sommer &
Schneider LLP
27 Financial Data Schedule
EXHIBIT 11
SOLUCORP INDUSTRIES, LTD.
COMPUTATION OF EARNINGS PER COMMON SHARE
<TABLE>
<CAPTION>
Three Months Ended
March 31,
------------------------------
1998 1997
------------- -------------
<S> <C> <C>
Primary Earnings: (*)
Net Income ($ 259,480) ($ 791,491)
============ ============
Shares
Weighted average number of common shares issued and outstanding 18,725,825 15,252,168
Assuming conversion of options issued and outstanding (*) -- --
------------ ------------
Weighted average number of common shares as adjusted 18,725,825 15,252,168
============ ============
Primary earnings/(loss) per common share (*) $ (0.01) $ (0.05)
============ ============
</TABLE>
- ----------
(*) Fully diluted earnings and other computations entailing conversions of
options and warrants are omitted since they would diminish the loss per
share.
LICENSING AGREEMENT
THIS LICENSING AGREEMENT is effective as of this 20th day of March, 1998 by and
between KBF Pollution Management, Inc., a New York Corporation, with offices
located at One KBF Plaza, End of Jasper Street, Paterson 07522 (hereinafter the
"Licensor") and EPS Environmental, Inc. dba Solucorp Industries, a British
Columbia Corporation, with its principal offices located at 250 West Nyack Road,
West Nyack, New York 10994 (hereinafter the "Licensee").
WITNESSETH
WHEREAS, the Licensor owns the exclusive rights to a patent-pending process to
separate, recover and reclaim metals from liquids by the addition of certain
reagents (hereinafter the "Technology"), under prescribed methodological
conditions (hereinafter the "Process"); and,
WHEREAS, the Licensor possesses expertise in determining the nature and extent
of the applicability of the Technology and Process (hereinafter the "Know-how");
and,
WHEREAS, The Licensee is involved in the environmental remediation business and
desires to obtain a License for the use and marketing of the Technology and
Process to remediate, recover and/or treat liquid streams of wastes containing
metals throughout the world.
NOW THEREFORE, in consideration of the foregoing premises and of the mutual
promises, covenants, conditions, and limitations herein contained, as well as
other good and valuable consideration the receipt and sufficiency of which is
hereby acknowledged, and intending to be legally bound hereby, the Licensor and
the Licensee do hereby agree as follows:
ARTICLE I
DEFINITIONS
As used above and throughout this entire Agreement, the following terms shall
have the meanings as hereinafter defined:
1.01 Affiliates. Any entity in which a party to this Agreement or any of its
stockholders, directors or officers has a direct or indirect ownership
interest (other than insubstantial interests in publicly held companies),
or any entity which directly, or indirectly through one or more
intermediaries, controls, is controlled by, or is under common control with
a party to this Agreement.
1.02 Consumer Price Index ("CPI"). The index used for site specific price
escalation as determined by the prevailing official rates and other factors
of the national market in which that site exists (see Attachment B).
1.03 Demand. The demand for the Licensed Material shall be evidenced by any and
all potential clients, customers, third party environmental remediation or
management companies, governments and/or site operators which generate or
in any manner produce, remediate or manage any liquid metal bearing waste
to which the Licensed Material may apply.
1.04 Effective Date. The effective date of this Agreement shall be the 20th day
of March, 1998.
1.05 Engineering Contractor. An engineering and/or construction firm shall be
designated for each site. This engineering contractor will work directly
with the Licensor in the design and engineering of the site, and consult
with the Licensor as needed during the construction of the site. The
engineering contractor will be required to enter into separate agreements
directly with the Licensor.
1.06 Essential Components. Components without which the Technology and/or the
Process would be, at worst, ineffective, and at best, inefficient. These
components include SST, a required polymer and
- --------------------------------------------------------------------------------
1
<PAGE>
the items and categories of equipment provided for pursuant to the terms
and conditions of each site specific agreement. All essential components
shall be purchased directly from the Licensor.
1.07 F.o.b. Shipping. Method of shipping having that meaning ascribed to it by
standard convention that essentially provides that title for any goods
purchased changes hands at the point of distribution. The Licensee will
after taking such title be responsible for all costs, taxes,
transportation, insurance and/or damage.
1.08 Feasibility Study. Upon the provision of certain information and samples,
detailed herein, the Licensor will perform an analysis of each site and the
existing contamination and/or waste stream. This study will allow the
Licensor to determine the nature and the extent of the applicability of the
Technology and process. This feasibility study will ultimately form the
basis for all subsequent design, engineering, technical assistance,
training and standard operating procedures for each site.
1.09 Gross Receipts. The residual gross revenue upon which the royalties payable
hereunder shall be calculated in accord with the principles outlined in
Attachment B, specifically Section A of said Attachment.
1.10 Know-how. The Licensor possesses considerable knowledge and experience in
practicing the Licensed Material. Every site and every stream of waste is
unique and requires different procedures, quantities of reagents and
equipment to process efficiently. The Licensor's expertise in this respect
is critical in determining the nature and extent of the applicability of
the Technology and Process to each individual site or stream of waste.
Know-how is expressly excluded from Licensed Material.
1.11 Letter of Credit. Stand-by letter of credit with site draft attached
provided by banking institution approved by the Licensor.
1.12 Licensed Material. The license herein granted applies to the use and
marketing of the present Technology and Process to remediate, recover
and/or treat liquid streams of wastes containing metals as defined in
Attachment A, annexed hereto, and does not apply to other technologies or
processes now existing or hereafter to be created, designed or engineered
by the Licensor.
1.13 Off-Spec Waste or Site. Pursuant to the terms herein, the Licensor will be
performing a feasibility study for each site. This study is critical to
determining the nature and the extent of the applicability of the
Technology and Process, as well as the design, engineering and construction
for each site. In order to perform this feasibility study, samples and
other information must be provided. If the actual site or waste
characteristics materially differ from the sample's characteristics, the
site or waste will be deemed by the Licensor to be off-spec.
1.14 Patent. Shall refer to and include applications for letters patent, letters
patent (including reissues, divisions, continuations or extensions
thereof), and rights by license or otherwise acquired under letters of
patent whenever acquired, owned, or possessed, applicable to the use of the
Technology and Process to remediate, recover and/or treat liquid streams of
wastes containing metals as defined in Attachment A, annexed hereto.
1.15 Polymer. A coagulating compound that may or may not be used in treatment.
Its use will be a function of the characteristics of the individual site
and/or waste at issue. The polymer is one of the essential components as
that term is defined herein.
1.16 Process. The portion of the Licensed Material that details the general
methodology for the correct application of the Technology to remediate,
treat, recover and reclaim metals from liquid waste for re-use as provided
for in Attachment A, annexed hereto.
1.17 Quality Control and Assurance ("QC QA"). The quality control and quality
assurance protocols are essential to the effective and efficient operation
of the Technology and Process. Failure to conform
- --------------------------------------------------------------------------------
2
<PAGE>
to these protocols may result in the failure of the Technology and Process
to perform the functions contemplated herein.
1.18 Reagent. A chemical compound that is required for the use of the Licensed
Material.
1.19 Recovered Product. An ultimate end product of the use of the Licensed
Material. The recovered product will take the form of a dried powder that
will have moderate to high concentrations of elemental metals. The
recovered product is analogous to virgin ore taken directly from the ground
and is likely to have concentrations of metals and a higher commercial
value than virgin ore.
1.20 Related Company. Any third party with whom the Licensee has entered into a
partnering, licensing, sales marketing, contracting, or other remediation,
recovery and/or treatment relationship with for the express purpose of
carrying out the transactions contemplated hereby in the Grant Territory.
1.21 Selective Separation Technology ("SST"). An essential chemical component of
the Technology without which the Licensed Material would be ineffective.
1.22 Site Approval. After performing the initial feasibility study for a
specific site, the Licensor will make a determination as to whether or not
and/or to what extent the Licensed Material applies to the characteristics
of the site. The Licensor, upon making its final determination will issue a
site approval and prepare a preliminary proposal for the process to be
employed at the site.
1.23 Site Operator. The Related Company or other entity in charge of the
management and/or operations of an individual site.
1.24 Site Specific Agreement. Separate per site agreement contemplating the use
of the Technology and Process as applied to the specific conditions of one
individual site. It is the intent of the parties hereto to enter into a
site specific agreement for each and every site, as that term is herein
defined. This agreement shall state with precision (in terms of U.S.
dollars) the gross per gallon receipts and other price and cost terms
herein referenced for each site, which terms will be defined upon the final
site approval of each site (see Attachment B). This agreement shall also
detail with precision all such terms herein referenced that remain
discretionary and conditioned upon final site approval, including, but not
limited to, any terms detailing the requisite standard operating procedures
and quality control protocols, the required essential equipment and the
furnishing of Know-how to the site operator or other third party.
1.25 Site. A specific treatment or remediation system, designed for the
treatment, recovery and/or remediation of a specific stream of waste using
the Licensed Material. There can be more than one site at any one
individual location.
1.26 Standard Operating Procedure ("SOP"). As part of the preparation of the
final design proposal for each site, the Licensor shall prepare a site
specific standard operating procedure manual for the site. All site
personnel will be trained according to the standard operating procedure of
their respective sites. Strict adherence to SOP protocols is essential to
the efficient use of the Licensed Materials.
1.27 Technology. The portion of the Licensed Material that details the general
chemistry and reagents for the correct application of the Technology to
remediate, treat, recover and reclaim metals from liquid waste as provided
for in Attachment A, annexed hereto.
1.28 Work-plan. After performing the initial feasibility study for each site,
and upon issuance of the specific site approval, the Licensor will prepare
a preliminary proposal and work plan for the design and construction of the
site. This proposal will be presented to the Licensee or any Related
Company, including the engineering contractor for inclusion into the final
work plan for each site.
- --------------------------------------------------------------------------------
3
<PAGE>
ARTICLE II
GRANT OF LICENSE; TERRITORY AND LIMITATIONS
2.01 Grant. The Licensor hereby grants to the Licensee, for approved sites
within the Grant Territory only, as provided for by provision 2.02 hereof, the
exclusive right, license and privilege, subject to provision 5.07 hereof, to use
and market the Technology and Process to remediate, recover and/or treat liquid
streams of wastes containing metals.
2.02. Grant Territory. The exclusive license herein granted is world-wide and
for only those sites approved by the Licensor.
2.03. Scope. The grant shall be inclusive of the right, license and privilege
solely to the use of the Technology and Process as contemplated by this
Agreement only.
(a) Exclusion of Know-how. The parties hereby agree that Know-how, as that
term is herein defined, will be furnished by the Licensor, pursuant to
the terms as herein defined, on a site specific basis as needed for
the consideration defined in Article IV, "Royalties and Fees," and
that this Know-how shall not be included in the grant of the Licensed
Material.
(b) Exclusion of the Manufacture of Reagents. Neither the Licensee or any
Related Company, Affiliate, sublicensee or other party shall have the
right to manufacture SST or the polymer required for the Technology
and Process as herein defined or referenced, and shall purchase the
SST and the polymer exclusively from the Licensor on the cost basis
and upon terms defined in Article IV, "Royalties and Fees," and the
applicable site specific agreement.
(c) Exclusion of New Technologies, Processes and Know-how. The license
herein granted applies to the Technology and Process in existence on
the effective date of this Agreement, and does not apply to other
technologies or processes now existing or hereafter created, designed
or engineered by the Licensor or others. In the event that the
Licensee desires to obtain the rights to any additional technologies
or processes now or hereafter existing, the granting of such rights
shall be subject to separate written agreement then to be negotiated,
for which rights the Licensee shall have a right of first refusal in
the Grant Territory only.
2.04 Site Specific Approval. The Licensee shall not under any circumstance use
or otherwise arrange for the use of the Licensed Material in any site not
approved by the Licensor.
2.05 Transferability. The grant of the License to Licensee is nontransferable,
nonassignable and indivisible. The Licensee shall have the right, however, to
sub-license to any third party upon the prior express written consent of the
Licensor, which consent shall not be unreasonably withheld. Upon such
circumstance, the Licensor reserves the right, free of restriction to make
independent arrangements with the third-party with respect to the furnishing of
Know-how, purchase of reagents and equipment, quality control and assurance,
training, record keeping and reporting, and any technical or other support that
may be required.
2.06 No Competitive Technologies, Processes of Know-how. Until either party
shall give to the other notice of termination of this Agreement as hereinafter
provided: (a) Licensee shall not enter into any other license agreement for any
directly competitive Technology and/or Process within the Grant Territory and,
(b) the Licensee shall not directly or indirectly undertake to purchase and/or
use any directly competitive Technology or Process, if any such technologies
and/or processes presently or hereafter exist, except those of the Licensor.
2.07 Sales Through Related Company. Licensee shall have the right to conduct
sales, marketing and contracting through a Related Company provided that the
Licensee shall be responsible for the payment
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of royalties and other obligations under this Agreement. The Licensee shall
within reason disclose to the Licensor the identity of any such Related Company,
and provide copies of all relevant agreements in place with the Related Company
that are reasonably related to the transaction contemplated by this Agreement.
2.08 Patent Coverage Delimited. No license or right is hereby granted by
implication or otherwise, with respect to any other letters patent or
applications thereto except as specifically set forth herein and in Attachment
A, annexed hereto.
2.09 Breach Event. Breach of this Article of the License Agreement in any manner
shall be deemed a material breach for which the Licensor may pursue termination
in full accord with the provisions of this Agreement.
ARTICLE III
TERMINATION AND TENURE
3.01 Term. This agreement shall continue in effect, unless sooner terminated as
hereinafter provided, for a period of five (5) years ending on March 20, 2003.
The term of this Agreement shall automatically renew for successive periods of
one year at the end of the term hereof, including renewal terms, unless either
party shall have given written notice of non-renewal at least one year prior to
the end of the term.
3.02 Material Breach. If the Licensee shall at any time and for any reason not
make payment to the Licensor of any royalty or other amount agreed to be paid
hereunder by the date required by this Agreement as required under any site
specific agreements, or shall default in the making and provision of any report
hereunder required by the date required by this Agreement, or shall commit any
breach of any covenant or agreement herein contained, or shall negligently make
any false report and shall fail to remedy such default, breach or report within
thirty (30) days in the case of the Licensee or sixty (60) days in the case of
any potential sub-licensee after written notice thereof by Licensor, Licensor
may, at its option, terminate this Agreement and the Licenses herein granted by
written notice of such termination.
(a) In the event of any or more of the following:
(i) any breach of this Agreement not cured within sixty (60) days
after notification thereof;
(ii) insolvency or bankruptcy of either party;
(iii) appointment of a trustee or receiver for either party;
(iv) the failure of the Licensee to use its best efforts to satisfy
any of the Demand, as herein defined, in the Grant Territory
after a period of one (1) year from the date of this Agreement;
(v) the failure of the Licensee to comply with and abide by the terms
of any the Licensor's feasibility studies, final work plans or
designs, quality control and assurance procedures and reporting
requirements or any instructional manual detailing the standard
operating procedures for each site; and/or,
(vi) the production by the Licensee of any intentionally misleading or
otherwise fraudulent or false report.
then, and in addition to all other rights and remedies which either
party may have in law or equity, the party not in default may at its
option terminate this Agreement by written notice. Such termination
shall become effective on the date set forth in the said notice of
termination but in no event shall it be earlier than thirty (30) days
from the date of notice thereof. The waiver of the right of
termination for any default under this Agreement shall
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not constitute a waiver of the right to claim damages for such default
or the right to terminate for any subsequent default.
3.03 Agreement Not to Use or Employ. On termination of this Agreement, Licensee
hereby agrees that it will not, in perpetuity, either directly, indirectly or
through any or its Related Companies or Affiliates, Licensees, sublicenses,
clients, or partners, use or employ any information disclosed by the Licensor
from the patent disclosures and applications, technologies, trade secrets,
designs, formulas, processes, Know-how, contracts, samples, feasibility studies,
work-plans, project documentation, books, instructional volumes, notes,
drawings, writings, documents, files, models, photographs, videos, drawings,
sketches, ideas, concepts and inventions in any stage of development or
completion, improvements and discoveries relating to the rights, privileges and
license, and any improvements thereto, which are the subject matter of this
Agreement.
(a) Sublicense Contingency. In the event that pursuant to provision 2.05,
and upon the express written consent of the Licensor, the Licensee
sublicenses any rights or privileges to any third party, the Licensee
shall impose the same condition in perpetuity upon its sublicensees
with respect to not using any of the information disclosed by the
Licensor or the Licensee from the Licensor's patent disclosures and
applications, technologies, trade secrets, designs, formulas,
processes, Know-how, contracts, samples, feasibility studies,
work-plans, project documentation, books, instructional volumes,
notes, drawings, writings, documents, files, models, photographs,
videos, drawings, sketches, ideas, concepts and inventions in any
stage of development or completion, improvements and discoveries
relating to the rights privileges and license, and any improvements
thereto, which are the subject matter of this Agreement.
(b) Covenant to Enforce as to Sublicensee. The Licensee agrees and hereby
covenants that it shall engage in all reasonable efforts to enforce
the terms of this subsection 3.03 as against any possible defaulting
sublicensee, the failure of which enforcement may result in the
initiation of suit in infringement and breach as against any possible
defaulting sublicensee.
3.04 Surrender of Rights and Know-how. On the termination of this Agreement, for
any reason whatsoever, Licensee, its Related Companies or Affiliates shall
deliver to Licensor all patent disclosures and applications, technologies, trade
secrets, designs, formulas, processes, Know-how, contracts, samples, feasibility
studies, work-plans, project documentation, books, instructional volumes,
standard operating procedures, notes, drawings, writings, documents, files,
models, photographs, videos, drawings, sketches, any and all duplicated
materials on whatever media so reproduced, ideas, concepts and inventions in any
stage of development or completion, improvements and discoveries relating to the
rights, privileges and license, and any improvements thereto, which are the
subject matter of this Agreement.
(a) Sublicense Contingency. In the event that pursuant to provision 2.05,
and upon the express written consent of the Licensor, the Licensee
sublicenses any rights or privileges to any third party, the Licensee
shall to the best of its ability cause said sublicensee(s) to deliver
to Licensor all patent disclosures and applications, technologies,
trade secrets, designs, formulas, processes, Know-how, contracts,
samples, feasibility studies, work-plans, project documentation,
books, instructional volumes, standard operating procedures, notes,
drawings, writings, documents, files, models, photographs, videos,
drawings, sketches, and any and all duplicated materials on whatever
media so reproduced, ideas, concepts and inventions in any stage of
development or completion, improvements and discoveries relating to
the rights, privileges and license, and any improvements thereto,
which are the subject matter of this Agreement.
3.05 Disposal of Inventory. In the event of termination, Licensor shall be given
right of first refusal to purchase any reagents and/or stocks of any raw
materials, as required to have been purchased from the Licensor pursuant to the
terms herein defined, as the Licensee and/or any Related Company, Affiliate or
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sublicensee of the Licensee may have in its possession. If the Licensor does not
buy said inventories, the Licensor will give to the Licensee or Related Company,
Affiliate or sublicensee the right to continue selling or using the stock on
hand and raw materials until these stocks on hand are exhausted.
3.06 Rights and Obligations Upon Termination. In case of termination, Licensor
shall have the right to give public notice thereof in such manner and at such
time and places as it may deem advisable. Upon termination of this Agreement, by
expiration or otherwise, the following rights, privileges and/or obligations
shall continue to inure to the benefit of the parties:
(a) The Licensor shall have the right, free of restriction, to directly
contract or otherwise conduct any transaction in furtherance of the
purposes herein contemplated with any Related Company, Affiliate,
and/or sublicensee of the Licensee or any other third party then
using, preparing for or otherwise anticipating the use of the
Technology and Process.
(b) The termination of this Agreement shall not relieve the Licensee in
any way from its obligation to pay Licensor all royalties and fees
which shall have accrued up to the effective date of termination.
(c) Any termination or expiration of this Agreement shall not prejudice
any cause of action or claim of Licensor accrued or to accrue on
account of any breach or default by Licensee.
(d) Any termination or expiration of this Agreement under this Article
shall not prejudice the right of the Licensor to a final audit of the
records of the Licensee in accordance with the provisions of Article
IV hereof.
(e) Any termination or expiration of this Agreement shall not affect the
continued operation or enforcement of any provision of this Agreement
which by its express terms is to survive expiration or termination.
3.07 Remedies. The parties hereto agree that the remedy at law for any breach of
this Agreement will be inadequate and it will be impracticable and extremely
difficult to prove, and further agree that such a breach would cause the
aggrieved party irreparable harm, and each party hereby covenants and agrees
that such aggrieved party shall be entitled to temporary and permanent
injunctive relief, without the necessity of proving actual damages.
ARTICLE IV
ROYALTIES AND FEES
All royalties and fees outlined hereafter become payable as scheduled herein:
4.01 License Fee. The Licensee shall pay to the Licensor, simultaneously with
the execution and delivery of this license, an initial license issue fee of
$500,000. The Licensee shall further pay to the Licensor a residual license fee
of $0.0005 per gallon for the entire term of this agreement, which fee shall be
paid by the Licensee out of its percentage of the total gross per gallon
receipts, as that term is herein defined.
(a) The initial license issue fee shall be paid in the form of
unrestricted common stock of the Licensee, at 80% of its market value
as of the close of business on March 19, 1998 (190,550 shares).
Four-fifths of this stock shall be held in escrow by Sonageri & Fallon
LLC, Continental Plaza II, Hackensack, New Jersey 07601. The stock
held in escrow shall be released to the Licensor in three equal
disbursements on April 20, 1998, May 20, 1998 and June 20, 1998.
(b) The residual license fee shall be paid on the fifteenth (15th) of
every month, commencing with the onset of operations at the first
approved site and continuing in perpetuity thereafter on a per gallon
basis.
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4.02 Royalty. For the rights and privileges granted under the License, the
Licensee shall pay to the Licensor, in the manner hereinafter provided, and
until this license is terminated as herein provided, a standard royalty 50% of
the gross per gallon receipts, as that term is herein defined, calculated on a
per site basis (see Attachment B), for the use of the Technology and Process for
the remediation, recovery and/or treatment of any and all quantities of liquid
waste processed in the Grant Territory.
(a) Minimum Royalty. Except upon the express written consent of the
Licensor or as provided in provision 4.02(b) hereof, in no event shall
the Licensee pay to the Licensor a royalty of less than $3,000,000 for
the first two years, and $2,000,000 per year thereafter for the
remaining term of the agreement. In the event that the minimum royalty
shall be paid, the first minimum royalty shall be payable in full by
December 31, 1999, and all minimum royalties thereafter shall be
payable in full at the end of the relevant calendar year.
(b) In the event that the Licensed Material is not as warranted herein,
and provided that the total gross receipts, as that term is herein
defined, do not exceed $6,000,000 in the first two years and
$4,000,000 per year for each year thereafter for the term of this
Agreement, the extent of the Licensee's pecuniary liability for the
minimum royalty payable hereunder to the Licensor shall be limited to
50% of the gross receipts.
(c) The dollar amount of the royalty and all costs and calculations
therefor shall be precisely detailed in each Site Specific Agreement
to be entered into by the parties hereto upon the final site approval
of each site. It is the intent of the parties to compute the above
defined costs and figures on a per gallon basis, using dollars per
gallon as the unit of calculation, and to standardize these costs by
taking into account the total quantity of waste per site anticipated
to be processed per year as herein contemplated. All costs of
operations and reagents shall be expressed as a function of this
projected total quantity (see Attachment B).
(d) The royalty shall be computed per site, and shall under no
circumstance be less than $0.007 per gallon. The royalty due on any
one site shall not under any circumstance have any impact on the
amount of the royalty due on any other site.
4.03 Purchase of Reagents. The Licensee shall cause to be purchased exclusively
from the Licensor the SST at a rate of $18.00 per gallon, and a required
polymer at a rate of $5.00 per pound. All costs of shipment of the reagents
f.o.b. from the point of manufacture to the Grant Territory.
(a) The payment will be tendered by an approved institutional stand-by
letter of credit with site draft attached for each order or as
approved in writing individually by Licensor.
4.04 Purchase of Equipment. Except upon the express written consent of the
Licensor, the Licensor shall distribute and/or make available to the Licensee
and/or the sublicensee and/or the site operator specific items of essential
equipment at a cost plus ten and ten (10% plus 10%) basis.
(a) The payment will be tendered by an approved institutional stand-by
letter of credit with site draft attached for each order or as
approved in writing individually by Licensor.
4.05 Feasibility Report. The Licensor shall at its own expense perform a
feasibility study and produce a report thereon on a site by site basis.
(a) The Licensee, or any of its Related Companies, Affiliates,
sublicensees, site operators or the engineering contractor shall
provide all relevant information for each site reasonably required by
the Licensor to perform the initial feasibility study, including but
not limited to samples, process descriptions, engineering drawings and
schematics, precise quantity, flow and throughput figures, and, if
travel to any site is for any reason impracticable, a video recording
of the site.
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4.06 Training. The Licensor shall at its own expense provide for all training
for each site. All personnel will be trained for a two week period at the
Licensor's facility in Paterson, New Jersey, and then for a period of time, not
to exceed one week, at their respective site.
(a) General Indemnification. The Licensee hereby agrees to indemnify and
hold the Licensor harmless from all loss, expense (including
reasonable attorney's fees) and damages arising out of any claims,
demands and liabilities (including claims by Related Companies,
sublicensees, employees and other third parties) incurred by the
neglect, crime or other act of any person under control of the
Licensee being trained by the Licensor.
4.07 Support. The Licensor shall be responsible for and shall render technical
support to the Related Company, Affiliate, sublicensee, and/or the site operator
at a cost of up to $300.00 per hour, but at no time less than $190.00 per hour
(depending on the level of support required), for all technical support, billed
to each quarter hour. All support fees shall be payable within thirty days of
the date the support is rendered.
4.08 Quality Control Monitoring. All quality control monitoring shall be the
responsibility of the Licensor and shall be charged to each site operator
pursuant to the terms of its respective site specific agreement.
4.09 Escalation Factor and Price Adjustment. All prices and fees heretofore
detailed in this Article will automatically escalate per calendar year pursuant
to the following:
(a) Per Annum Escalation. The per year fee escalation will be determined
in accord with the provisions of section C of Attachment B, and as
specified in each site specific agreement.
(b) Discretionary Adjustment. All prices will be subject to further
discretionary adjustments where market forces and other unforeseen
factors resulting in increased costs to the Licensor require any such
increases to be proportionately passed along to the Licensee.
(c) Annual Review of Royalties. The parties hereby agree that they shall
conduct an annual review of the royalty schedule herein defined at or
about each anniversary date of this agreement, at which time the
parties agree, as part of the consideration for this Agreement, that
they may, only upon the express written consent of both parties,
modify the amounts of the royalties payable hereunder.
4.10 Reports, Records and Audits. The Licensee hereby covenants, as part of the
consideration for this Agreement, that it shall cause to be paid any and all
reasonable costs associated with ensuring compliance with the record keeping,
reporting and auditing procedures as defined herein by causing to be integrated
into any sublicensing or other agreement entered into for the purposes herein
contemplated sufficient provisions to ensure said compliance as against any
Related Company, Affiliate, sublicensee or other third party.
(a) Records. Licensee agrees that it shall cause to be kept accurate
records in full accord with the site specific Standard Operating
Procedures in sufficient detail to enable the royalties payable
hereunder to be determined, and agrees to cause such records to be
made available for inspection from time to time during the term of
this Agreement. Such inspection shall be made by authorized
representatives of the Licensor at reasonable intervals during normal
business hours to the extent necessary to verify the reports and
payments required as specified herein.
(b) Reports. Reports shall be produced, in accord with the notice
provisions hereof, on an as needed basis to the extent deemed
necessary by the Licensee and/or Licensor. The intent of any such
report is to clearly and unambiguously set forth the following
information:
(i) Influent gallonage, flow, rate and throughput statistics measured
hourly, with specific reference to time of measurement and
cumulative quantity and flow data;
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(ii) Analytical data, including but not limited to, concentrations of
inorganic, and when applicable, organic compounds and pH of both
the influent and effluent. This data shall be compiled hourly:
(iii) Precise quantities used of SST and polymer per day;
(iv) Any additional information deemed necessary and requested by the
Licensor; and,
(v) The assessment of the royalties due thereon.
(c) Provision of Samples. To the extent that any site specific agreement
calls for or otherwise requires samples to be taken at any time, such
samples shall be taken and clearly and unambiguously identified in
full accord with the site specific standard operating procedure.
(e) Procedure on Audit. It is hereby agreed that Licensor shall have the
privilege of having a certified public accountant, or other
representative or agent of the Licensor audit all statements of
account, reports and records required or contemplated by this
Agreement to be made by Licensee to Licensor, as frequently as
Licensor may desire to have such audits made, and that Licensee shall
place at the disposal of said certified public accountant for the
purposes of this paragraph any and all records essential to the
verification of such reports. The expense of such audits and
verifications shall be borne jointly by the Licensee and Licensor
except upon the development of conditions giving either party
reasonable cause to suspect any violation of the reporting and record
keeping requirements defined herein, in which circumstance the site
operator shall be responsible for all costs and expenses of the audit.
(i) Reasonable Cause. Any information from whatever source derived
that may be interpreted by either party as a potential violation
of any term herein defined.
(ii) Notice Prior to Audit. The Licensee and/or Licensor shall give to
the site operator express written notice of its discovery of any
fact, condition or circumstance giving the auditing party
reasonable cause to suspect any violation of the terms of this
Agreement. The site operator shall be given a reasonable
opportunity to take corrective action not to exceed ten (10)
business days. If, upon the failure of the corrective action to
remedy the fact, condition or circumstance giving rise to
reasonable cause, or upon the failure of the site operator to
take corrective action, the Licensee and/or Licensor will arrange
for the audit to commence immediately.
(iii) Notice of Violation. The Licensee and/or Licensor shall provide
express written notice of any violation revealed as a result of
any audit conducted. The site operator will then be obligated to
cure said violation or shall suffer default pursuant to the
provisions of Article III hereunder.
(iv) Examination Upon and After Termination Event. In the event of
termination or expiration of this Agreement for any reason
whatsoever, Licensee agrees to provide access, or to otherwise
cause access to be provided, to the Licensor, its auditors,
accountants or agents to inspect all said records and books of
Licensee, and/or any sublicensee and/or any site operator and to
investigate generally all transactions of business carried on by
Licensee and/or any sublicensee and/or any site operator, or any
of its Related Companies, in the Grant Territory pursuant to this
Agreement and the License hereby granted, for a one (1) year
period of time after such termination.
4.11 Interest on Overdue Payments. Licensee shall cause to be paid to Licensor
with interest thereon at the rate of 18% per annum any and all amounts past due
and owing for sixty (60) days hereunder to the Licensor, calculated from the
date when such payments are due and payable as provided herein to the date
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of payment. This provision shall survive termination of this Agreement and shall
remain in effect until all sums due including interest thereon are paid in full
without offset or counterclaim.
4.12 Acceleration of Overdue Account. The payment provisions of this agreement
are to be strictly construed with time being of the essence with regard to all
payments to be made hereunder by the Licensee to the Licensor. The failure of
the Licensee to make such payments on their due dates shall be deemed a material
breach of this Agreement, and the Licensor, at its option, may terminate this
Agreement upon notice to the Licensee.
ARTICLE V
OTHER PRINCIPAL RIGHTS AND OBLIGATIONS; PATENT PROVISIONS
5.01 Representations and Warranties of Licensor. As of the effective date of
this Agreement, Licensor represents and warrants to Licensee as follows:
(a) Organization and Qualification. Licensor is a corporation duly
organized, validly existing and in good standing under the laws of the
State of New York and has the corporate power and authority to enter
into this Agreement, to consummate the transactions contemplated
hereby and thereby. Licensor is duly licensed or qualified to do
business, and is in good standing, in every jurisdiction in which it
is required to be so licensed or qualified due to its business or
ownership of its assets and where failure to be so licensed or
qualified would have a material adverse effect on its ability to
perform its obligations hereunder.
(b) Authority. Licensor has full power, capacity and authority (corporate
or otherwise) to execute and deliver this Agreement upon the
concurrent payment to Licensor of the required licensing fees and
payments, and to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement, and the consummation of the
transactions contemplated hereby, have been duly and validly
authorized by Licensor, and no other proceedings (corporate or
otherwise) on the part of Licensor are necessary to authorize this
Agreement, or to consummate the transactions contemplated hereby. This
agreement has been duly and validly executed and delivered by Licensor
and (assuming the valid execution and delivery of the agreement by
Licensee) constitute legal, valid and binding agreements of Licensor.
(c) Consents and Approvals. There is no authorization, consent, order or
approval of, or notice to or filing with, any individual or entity
required to be obtained, given or made in order for Licensor to
execute and deliver this Agreement, to consummate the transactions
contemplated hereby and thereby and fully perform its obligations
hereunder and thereunder.
(d) Absence of Conflicts. The execution, delivery and performance by
Licensor of this Agreement, and the consummation by Licensor of the
transactions contemplated hereby will not, with or without the giving
of notice or the lapse of time, or both, (i) violate any provision of
law, statute, rule or regulation to which Licensor is subject, (ii)
violate any order, judgment or decree applicable to Licensor, or (iii)
conflict with, or result in a breach or default under, any term or
condition of the charter or by-laws of Licensor, if applicable, or any
agreement or other instrument to which Licensor is a party or by which
Licensor is bound, or to which any of Licensor's assets are subject.
(e) Brokers and Finders. Neither Licensor nor any of its officers,
directors, employees, Affiliates or associates has employed any
broker, finder or investment banker, or incurred any liability for any
brokerage fees, commissions or finders' fees in connection with this
Agreement or the transactions contemplated by this Agreement.
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(f) Ownership and Right to License. Licensor represents and warrants that
it is the owner of the world-wide exclusive right, title and interest
in and to the applications for letters patent for the Licensed
Material, and that it is has the sole right to grant licenses under
said applications for letters patent, prospective letters patent,
reissues and extensions, of the scope herein granted.
(g) Commercial Utility. Licensor hereby represents and warrants that the
Licensed Material has commercial utility.
(h) Validity. Licensor hereby represents and warrants that said
application for letters patent is genuine and valid.
5.02 Acknowledgment of Validity. Licensee hereby covenants and agrees that it
will not contest, nor assist others in contesting, the validity of the letters
patent, or applications thereto, of the United States which are the subject of
this Agreement, nor the title thereto of Licensor.
5.03 Third party Infringement. If at any time any third party shall infringe the
patent(s) licensed hereunder in the Grant Territory, then Licensee and/or the
Licensor shall, promptly either (1) obtain a discontinuance of said infringing
operations or (2) bring suit, bringing said suit in the name of the Licensee, or
if so required by the laws of the State of New York, bringing suit in the name
of the Licensor or joining Licensor as a party plaintiff with the Licensee. For
this purpose Licensor shall execute such legal papers necessary for the
prosecution of such suit as may be reasonably requested by Licensee. The
Licensor further covenants that it will otherwise provide all reasonable
assistance to the Licensee in the prosecution of any such suit.
(a) Prosecution of Rights. Licensee, with the reasonable assistance of the
Licensor, agrees to bring and diligently prosecute such suits for the
infringement of the aforesaid patent(s) as may reasonably be necessary
to prevent unlicensed competition materially interfering with the
businesses of the Licensee and Licensor hereunder. Whenever any suit
is brought against any infringer by Licensee as above provided,
Licensee shall immediately notify Licensor of such suit. The costs and
expenses of such suit and all recoveries therefrom shall be shared
equally by the parties hereto, except that, at the option of the
Licensor, the Licensor's contribution shall be limited to one-half
(50%) of the royalties payable to Licensor by Licensee during the
pendency of any such action.
(i) Trigger Event; Duties Thereafter. If at any time hereafter any
third party shall infringe any unexpired patent licensed
hereunder and Licensor shall give notice in writing to Licensee
of the existence of such infringement, including such evidence of
infringement as Licensor may possess and if Licensee shall fail
to assist in the suit against such third party as provided above
or obtain a discontinuance of such infringing operations within
six (6) months of the date of receipt of such notice, then
Licensor may at its election either terminate this Agreement and
the rights, privileges and license herein granted and any
sublicenses that may be granted by the Licensee (pursuant to
provision 2.05 of Article II above) or bring suit in its own name
as against such infringer. Should Licensor bring suit in its own
name as hereinbefore provided, Licensee shall execute such legal
papers necessary for the prosecution of such suit as may be
requested by Licensor, and Licensor shall be liable for all costs
and expenses of such litigation and shall be entitled to receive
and retain all recoveries therefrom. In the event that the
Licensor should undertake such litigation, then the Licensor has
the right to cancel the exclusive features of this license and
may thereupon license others in the Grant Territory. In case the
Licensee terminates this Agreement by material breach or
otherwise failing to satisfy its duties as defined herein,
Licensee shall assign to Licensor all sublicenses
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that may have been granted hereunder pursuant to provision 2.05
of Article II of this Agreement.
(ii) Rights Reserved to Licensor. Licensor shall have the right, in
any suit brought by the Licensee, pursuant to the foregoing, to
be represented at its own expense by counsel of its own selection
to the extent of having access to full information and
opportunity to be heard in the councils and attorneys of the
Licensee, but such expense shall not be considered as costs or
expenses of the litigation unless Licensor elects to participate
in the suit as provided in subparagraph (a) of this clause.
(b) Defense of Third Party Suit. The Licensor agrees during the term of
this Agreement to defend Licensee against any suit for infringement of
any patent of third parties covering the Licensed Material so long as
said patent(s) were issued prior to the effective date of this
Agreement in the Grant Territory. This obligation is subject to the
following conditions:
(i) Licensee must have given notice to Licensor of the claim of
infringement within twenty (20) days after receipt of service
thereof upon Licensee;
(ii) Licensor's liability shall be restricted to the defense of any
suits arising from claims based on any of the Licensor's letters
patent, for the Licensed Material granted hereunder; and,
(iii) Licensee shall render reasonable assistance to Licensor or, upon
the request of the Licensee and at the Licensor's option, shall
be permitted to defend against the suit and shall be entitled to
receive and retain all recoveries, if any, therefrom.
(c) No Effect on Royalties. Upon the circumstance of any suit for
infringement being brought by Licensee and/or Licensor or against
Licensee and/or Licensor, there shall be no effect upon the amount or
schedule of royalties owing from the sublicensee or site operator as
so defined in Article IV hereunder.
5.04 Improvements. Licensee, as a part of the consideration for the License
hereby granted to it, hereby agrees to submit to Licensor, during the term of
this Agreement, all developments or improvements in the Licensed Material or
Know-how made by or at the instance of the Licensee, and Licensee hereby agrees
that, during the life of this agreement, the Licensor and each of its
Affiliates, both past and future, shall have the exclusive right to said
developments and improvements, whether patented or unpatented.
(a) Assignment to Licensor. Said developments or improvements shall be
entirely assigned to the Licensor and shall be the sole property of
the Licensor, except, however, that the Licensee shall automatically
have an exclusive license thereunder in the Grant Territory without
additional charge.
(b) Development or Improvement. As used herein, the terms development and
improvement mean any design, process, method, modification, idea,
concept or Technology, of whatever form, the use of which affects the
Licensed Material in any one or more of the following ways:
(i) Reduces process or Technology costs;
(ii) Improves the efficiency or performance of the Process in any
manner;
(iii) Improves the efficiency or performance of the Technology in any
manner;
(iv) Improves reaction efficiency or performance in any manner;
(v) In any way broadens the scope or range of Process and/or
Technology applicability;
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(vi) Increases marketability; or,
(vii) Results in any further invention that was reasonably discovered
as a direct or indirect result of the Licensor disclosing any
information herein contemplated as necessary to the rights,
privileges and license herein granted.
(c) Licensee's Covenant to Disclose. The Licensee hereby covenants to
immediately communicate any developments, improvements, modifications,
further inventions, and designs it or its Related Companies or
Affiliates may discover, make, or develop with respect to the Licensed
Material, Know-how and other information herein contemplated as
necessary to the rights, privileges and license herein granted, and
shall fully disclose to the Licensor the nature and manner of applying
and utilizing such improvements, developments, modifications, further
inventions and designs. Failure to promptly comply with this covenant
in any manner shall be deemed a material breach for which the Licensor
may pursue termination in full accord with the provisions of this
Agreement.
(d) Development or Improvement by Licensor. The Licensor hereby agrees, as
part of the consideration for this Agreement, that it shall make
available all direct Developments and Improvements to the Licensed
Material, made by or at the instance of the Licensor, for no
additional cost and under the same terms as this Agreement, except as
provided for in subparagraph 5.04(d)(i) hereof. The Licensee hereby
agrees that, during the life of this Agreement, the Licensor and each
of its Affiliates, both past and future, shall have the exclusive
right to said Developments and Improvements, whether patented or
unpatented. This provision shall apply only to those direct
Developments and Improvements of the Licensed Material that are
applicable to the same market (e.g., liquid metal bearing wastes) and
the same media (e.g., liquid) that the Licensed Material presently
applies.
(i) Licensee to Bear Costs of Research and Development. The Licensee
hereby agrees that it shall bear all costs and shall compensate
Licensor for all reasonable expenses incurred by the Licensor in
research and development of any direct Developments or
Improvements as provided for by subparagraph 5.04(d) hereof. The
Licensee shall pay this amount to the Licensor by reducing its
percentage of the gross receipts as provided in provision 4.02
hereof and Attachment B, annexed hereto, by 10% to 40% for a
period of time until the amount owing under this provision is
paid in full.
(e) New or Different Market. In the event that any Development or
Improvement on the Licensed Material enables access to a new market
(e.g., solid, air or radioactive waste), the parties hereby agree that
the terms of this License shall not apply. In such instance, the
Licensee shall have the right of first refusal on entering into a
separate license with the Licensor for such new market Developments or
Improvements.
5.05 License Under Foreign Patents; Requirement of Foreign Patents. The Licensee
shall have the right to the Licensed Material herein contemplated under any and
all foreign letters patent now pending or hereafter to be filed expressly and
exclusively corresponding to the herein defined United States letters patent.
Under no circumstance shall the Licensee be permitted to use or sublicense the
Licensed Material in any geographic region or country for the purposes herein
contemplated prior to the Licensor's filing of the application for letters
patent corresponding to the herein defined United States letters patent in that
geographic region or country.
5.06 Licensor's Covenant to Disclose. In the event that the Licensor contacts or
is ever contacted directly by any third party seeking to remediate, recover
and/or treat liquid streams of wastes containing metals in the Grant Territory,
the Licensor hereby covenants to disclose the identify of any such party to
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the Licensee and to simultaneously therewith refer such party to the Licensee,
except as provided for in Attachment C, annexed hereto.
5.07 Sales and Marketing; Commissions to Licensor. The Licensor shall have the
right to engage the market on its own behalf provided that any such sales shall
be made through the Licensee, upon which the Licensee shall pay a commission to
the Licensor's sales or marketing agent, which commission shall be paid out of
the Licensee's percentage of the gross per gallon receipts, calculated on a per
site basis. The commission shall be paid in accord with the provisions of the
relevant Licensor marketing agreement. All Licensor costs of sale shall be
borne by the Licensee, and shall be deducted from its percentage of the gross
per gallon receipts, calculated on a per site basis.
5.08 Profit and Commission on Licensor Sale of Licensee Product. In the event
that the efforts of the sales or marketing agents of the Licensor result in any
sale of any product or service of the Licensee, the Licensee shall pay to the
Licensor 50% of the relevant gross receipts, calculated on a per site basis
(see Attachment B), derived from any use or sale of any product or service of
the Licensee in the Grant Territory. The Licensor shall pay the relevant
commission to the Licensor's sales or marketing agent responsible for said sale
of the Licensee's product or service.
ARTICLE VI
KNOW-HOW, TECHNICAL ASSISTANCE, PURCHASE OF ESSENTIAL COMPONENTS
6.01 Know-how Commitment. The Licensor shall from time to time, and to such
extent that it shall consider to be reasonably necessary for the performance of
this Agreement, furnish to Licensee information essential to determining the
nature and extent of the applicability of the Technology and Process. Only the
Licensor has the right to divulge Know-how, and at no time shall the Licensee or
its Related Companies or Affiliates divulge any Know-how taught or otherwise
discovered.
(a) Delimitation of Commitment. The Licensor shall communicate to the
Licensee upon request such information relating to the Licensed
Material which shall in the opinion of the Licensor be of use to the
Licensee in its licensed operations. Such information shall, at the
option of the Licensor, consist of any patent disclosures and
applications, technologies, trade secrets, designs, formulas,
processes, Know-how, contracts, samples, feasibility studies,
work-plans, project documentation, books, instructional volumes,
notes, drawings, writings, documents, files, models, photographs,
videos, drawings, sketches, ideas, concepts and any improvements
thereto, which are the subject matter of this Agreement, and which is
directly applicable to the operations of the Licensee or its Related
Companies or Affiliates. The Licensor shall undertake in the initial
feasibility studies, work plan preparations, designs and engineering
development, pursuant to the terms herein, of each individual site
with respect to the Licensed Material and may provide special,
specific or additional information pertaining thereto to the Licensee
or its Related Companies or Affiliates or sublicensees. The Licensee
shall cause to be paid the relevant support owing to the Licensor for
such additional information pursuant to the applicable fees delineated
in Article IV. To the extent that the Licensor in its own opinion
deems this information to be necessary for the Licensee's use of the
Licensed Material, the Licensor shall furnish such specific Know-how
as the Licensor deems required and has in its possession.
(b) Covenant to Provide Technical Assistance. On the cost basis defined in
Article IV and other terms herein defined, the Licensor shall provide
all reasonable support to the Licensee and/or its Related Companies,
Affiliates, sublicensees or other third parties in the use of the
Licensed Material on a site by site basis.
(c) Excluded Know-how. Information with respect to research and advance
development activities is not included in the scope of this Agreement
and shall not be made available
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hereunder. Nothing contained in this Agreement shall oblige the
Licensor or its Affiliates to make available to Licensee or its
Related Companies or Affiliates any information concerning any further
invention, development or improvement of the Licensor until an
application for letters patent thereon has been filed in the United
States patent office.
6.02 Provision of Necessary Information. The Licensee shall cause to be provided
to the Licensor any and all information requested and otherwise known to be
required, as detailed hereafter, so that the Licensor may conduct an initial
feasibility study and prepare a preliminary proposal for each site. The
information required by the Licensor shall include, but shall not be limited to:
(a) Nature, extent and relative degradation of the site with specific
identifying information;
(b) Quantity, flow, throughput and influent source characteristics as
applicable;
(c) Specific details on the existing industrial processes and operations;
(d) Sufficient characteristic samples of the waste intended to be
remediated and/or treated by the Licensed Material, not less than
one (1) gallon for liquids and five (5) pounds for soils, sludges, and
other semi-solid wastes;
(i) Sampling Procedure. The sampling procedures which shall be
provided in the site specific SOP manuals.
(e) Desired nature, level and extent of treatment and/or recovery;
(f) Specific site information (including schematics if accessible)
detailing the site accessibility, structural design requirements,
sewer availability, power and water supply availability, power type;
(g) Overall geophysical and hydraulic characteristics of the site; and,
(h) Any other information deemed necessary by the Licensor on a site
basis.
6.03 Non-Conformance of Information; Off-Spec Wastes and/or Sites. As provided
herein, the Licensor will be performing a feasibility study for each site. The
parties recognize that this study is critical for determining the nature and
the extent of the applicability of the Technology and Process, as well as the
design, engineering and construction for each site. In order to perform this
feasibility study, samples and other information must be provided. If the
actual site or waste characteristics materially differ from the samples,
characteristics, the site or waste will be deemed by the Licensor to have not
met the original specifications of the site. The non-conforming waste or site
will be deemed to be off-spec. The Licensee hereby agrees that it shall bear all
reasonable costs and expenses associated with re-performing any additional
feasibility studies, designs, proposals or work-plans.
6.04 Licensee to Bear Costs.
(a) Set-up. The Licensor will bear the costs of preparing its per site
process design proposal and work-plan. The Licensee will cause the
sublicensee and/or site operator, at its cost, to obtain all
necessary approvals needed to operate the site, and will bear all
remaining costs associated with site set-up, including but not limited
to final process design, engineering, construction and operation. Any
support required at any time will be provided by the Licensor on the
cost basis defined in Article IV. The Licensor or Licensee shall
designate a third-party engineering and/or construction firm
(hereinafter the "engineering contractor") for each site. The
engineering contractor shall work with the Licensor and will be
required to enter into separate agreements (including but not limited
to nondisclosures and indemnifications) directly with the Licensor.
The Licensee will bear any additional costs which may be charged for
any regulatory, legal or permitting requirements, which requirements
are the sole obligation of the Licensee or its Related Companies or
the engineering contractor to comply with.
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(b) Covenant to Assist in Design, Engineering and Construction. Upon
satisfaction of the condition that the engineering contractor enters
into any separate agreements with Licensor as the Licensor deems
necessary, the Licensor convenants to assist the engineering
contractor in the design, engineering and construction of that portion
of any site in which the remediation, recovery and/or treatment
activities contemplated by this Agreement shall be conducted. The
Licensor further covenants that, to the extent only that it is able,
it will assist the engineering contractor in a reasonable manner in
the design, engineering and construction of other portions of any
site. The Licensor shall furnish that reasonable Know-how necessary to
comply with the conditions of this covenant.
(i) Any support required at any time to comply with the conditions of
this covenant will be provided by the Licensor on the cost basis
defined in Article IV.
(c) Covenant to Render Technical Assistance for Operation. The Licensee
shall designate for each site a Related Company, third party or itself
as the Site Operator. The site operator, may at the option of the
Licensor, be required to enter into separate agreements (including but
not limited to nondisclosures and indemnifications) directly with the
Licensor. This covenant shall only be given upon the execution of
these agreements in the event that the Licensor elects to have said
agreements executed.
(i) Upon satisfaction of the foregoing condition, the Licensor
covenants to assist and to render all reasonable technical and
other support required to initiate and maintain operation at
each site, for only those portions of each site in which the
remediation, recovery and/or treatment activities contemplated
by this Agreement shall be conducted.
(ii) Any support required at any time to comply with the conditions
of this covenant will be provided by the Licensor on the cost
basis defined in Article IV.
(iii) The determination as to whether any on-site assistance by the
Licensor is required will be made solely by the Licensor.
6.05 Purchase of Essential Components Exclusively from Licensor. The Licensee
shall cause the sublicensee and/or site operator to purchase all components
termed herein as essential directly from the Licensor pursuant to the following
terms and conditions:
(a) Essential Reagents. The Licensee, as a part of the consideration for
the License herein granted, hereby agrees to purchase the essential
reagents directly from the Licensor. There are two essential reagents
for which this term applies: (1) SST; and, (2) a required polymer
compound. SST shall be purchased on a per gallon basis and the polymer
shall be purchased on a per pound basis pursuant to the cost basis
provided for in Article IV.
(i) Requirement of Manufacturing. At no time, except upon the express
written consent and control of the Licensor, shall SST or the
polymer be manufactured in the Grant Territory.
(ii) Shipping. All costs of shipment shall be borne by the site
operator. The method of shipment shall be f.o.b. (shipping) from
point of manufacture, having that meaning ascribed to it by
standard convention.
(b) Essential Process Equipment. Except upon the express written consent
of the Licensor, the Licensee, as a part of the consideration for the
License herein granted, hereby agrees to cause the sublicensee and/or
site operator to purchase the essential process equipment directly
from the Licensor. All pieces or categories of equipment which shall
be deemed essential and shall be purchased directly from the Licensor
shall be detailed in the Site Specific Agreement for each site.
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(i) Shipping. All costs of shipment shall be borne by the site
operator. The method of shipment shall be f.o.b. (shipping) from
the point of manufacture and/or distribution, having that meaning
ascribed to it by standard convention.
(c) Licensor Covenants to Supply Essential Components. The Licensor hereby
covenants that it will within a reasonable time supply the aforesaid
essential components to the Licensee or its designated recipient on an
as needed basis.
(i) Ability to Supply. As of the date hereof, Licensor represents and
warrants to Licensee that it presently has and shall have the
ability to supply the aforesaid essential components to the
Licensee or its designated recipient.
(d) Excluded Components. The Licensee or its Related Companies or any
engineering contractors shall source and provide for all components
not herein referenced or provided for in any Site Specific Agreement.
6.06 Covenant to Provide Training. Licensor hereby covenants and agrees to train
the personnel of the site operator for the requisite laboratory and process
operations.
(a) Procedure on Training. All personnel shall be trained over the course
of two (2) weeks at the Licensor's principal facility at One KBF Plaza
in Paterson, New Jersey, and a period of time not to exceed one (1)
week on location at the individual site.
(b) Standard Operating Procedure. As part of the preparation of the final
design proposal for each site, the Licensor shall prepare a site
specific Standard Operating Procedure (the "SOP") manual for the site.
All personnel will be trained according to the standard operating
procedure of their respective sites.
(c) Indemnification on Failure to Comply with the SOP. The Licensee hereby
agrees to indemnify and hold the Licensor harmless from all loss,
expense (including reasonable attorney's fees) and damages arising out
of any claims, demands and liabilities (including claims by Related
Companies, sublicensees, employees and/or other third parties)
incurred by its, their own or the site operator's neglect arising out
of the failure to strictly abide by and adhere to the terms and
instructions specified in the site SOP manual and the relevant Site
Specific Agreement.
6.07 Assumption of Risk by Licensee. Licensee agrees that it shall be
responsible for damage to its or its Related Companies' property and for injury
or death of its employees and agents caused by any acts or omissions to act
arising from its or its sublicensee's direction, supervision or instruction,
including negligence, of the employees or agents of the Licensor, during the
performance of this Agreement. The Licensee agrees to release the Licensor from
any and all liability for loss or damage so caused to its or its Related
Companies' properties, and further agrees to indemnify and hold harmless the
Licensor against all claims and causes of action arising out of such damage to
property or such injury or death of employees or agents, except where actions or
omissions of the Licensor or its agents give rise to any claims, demands and
liabilities.
(a) Environmental, Health and Safety Considerations. Since the Licensee
will hire or cause to be hired various engineering contractors, the
Licensee expressly acknowledges that it will be the responsibility of
such engineering contractors as well as the Licensee, not the
Licensor, to ensure that each site is ultimately designed, engineered,
constructed and thereafter operated in accordance with the applicable
safety, health and environmental standards or requirements of the
Grant Territory.
(b) General Indemnification. Licensee further indemnifies and holds
Licensor harmless from any and all claims, demands, causes of action
and all costs of defense incurred by the Licensor (including court
costs and reasonable attorney's fees actually incurred) which
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claims, demands or causes of action are asserted by any third party
whatsoever including employees of the Licensee and its Related
Companies and are caused or alleged to be caused by reason of any
fault or defect in the design, construction or operation of any site.
(c) Survival. The provisions of this clause shall survive expiration or
termination of this Agreement for any reason and shall not be affected
thereby.
6.08 Maintenance of Secrecy; Restrictions; Survival. It is recognized by the
parties hereto that information in the form of Know-how will be disclosed,
taught or delivered by the Licensor pursuant to this Agreement and will contain
and incorporate confidential information in which Licensor had and will continue
to have a proprietary interest as the owner of such information, and Licensee
agrees to maintain, and will maintain, as confidential any and all information
disclosed to Licensee, directly or indirectly, pursuant to this Agreement.
Licensee will obtain from its employees, contractors, consultants, agents,
stockholders and other persons having access to Know-how acquired by Licensee
from Licensor (or any possible third party infringer), pursuant to this
Agreement, duly binding agreements from such persons, in a form acceptable to
Licensor, to maintain in confidence any such information disclosed to such
person by Licensee. Licensee agrees to reveal Know-how revealed to it by
Licensor pursuant to this Agreement, only to such persons and only to the extent
as may be required to permit Licensee to make possible the utilization of such
Know-how pursuant to this Agreement. The provisions of this paragraph shall
survive the termination of this Agreement.
ARTICLE VII
DISTRIBUTION, MARKETING, MINIMUM SALES AND BEST EFFORTS
7.01 Authorized Sales Channel. Licensee shall arrange for the sale or use of the
Licensed Material in the Grant Territory.
7.02 No Competitive Products. Licensee hereby covenants and agrees that it shall
not sell or use any material which may be regarded by the Licensor as directly
competitive with the Licensed Material, except upon the express written consent
of the Licensor.
7.03 Reciprocal Exchange of Commercial Information. The Licensor agrees to
furnish to the Licensee all commercial and marketing information and contacts
which it has heretofore obtained or developed in connection with the
exploitation of the Licensed Material in the Grant Territory, and the Licensee
agrees to furnish to the Licensor all commercial and marketing information and
contacts which it has heretofore obtained or developed in connection with the
exploitation of the Licensed Material in the Grant Territory.
7.04 Best Efforts of Licensee. The Licensee hereby covenants and agrees to use
its best efforts to promote the sale and use of the Licensed Material in the
Grant Territory. The Licensee shall as soon as possible after receiving the
Licensed Material herein granted begin to sell and to arrange for penetration of
the Grant Territory. The Licensee shall at all times throughout the life of this
Agreement exert its best efforts to create, service, supply and otherwise
satisfy as extensive a market for the Licensed Material in the Grant Territory
as is possible. Breach of this provision in any manner shall be deemed a
material breach for which the Licensor may pursue termination in full accord
with this Agreement.
(a) Duty to Exploit. It is understood and agreed that the Licensee
undertakes for itself the obligation to sell the Licensed Material,
but shall not incur any pecuniary liability for breach of this
undertaking, it being understood and agreed that if the Licensee
declines to accept otherwise feasible orders from any purchasers or
fails to meet the requirements of any purchaser of the Licensed
Material provided for in orders accepted by the Licensee, the Licensor
may license such other third parties to supply the Licensed Material
to such purchases. Said licenses to said third parties shall be
confined to supplying the Licensed Material to only such purchasers
from whom the Licensee may have refused to accept orders or whom the
Licensee has failed to supply, and said license shall be limited as to
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time only to the extent that the Licensee corrects such non-conforming
conduct. The Licensor agrees that, in the event of the Licensee's
breach of this duty to exploit the Licensed Material, no license shall
be granted to any third party upon terms more favorable than the terms
then in force between the Licensee and the Licensor.
(b) Sales Organization and Efforts. The Licensee agrees to maintain
suitable sales personnel and exert its best efforts toward vigorously
promoting the sales and use of the Licensed Material, including prompt
handling of all inquiries, personal calls on customers and/or
potential site operators and local marketing to the extent permissible
or practical in the Grant Territory.
7.05 Minimum Sales Requirement. If within any one (1) year period, as measured
by the anniversary date of the first Site Specific Agreement, there shall be any
less than ten (10) additional individual sites in operation in the Grant
Territory using the Licensed Material (i.e., ten additional sites each year), or
otherwise in substantial completion of construction, the Licensor may, at its
option, choose to excise the exclusivity provisions from this Agreement and
license the Licensed Material to others for the exploitation of the Grant
Territory market. This requirement shall accrue and is to be satisfied only by
the sales and marketing efforts of the Licensee; any site or contract that
results from the sales or marketing efforts of the licensor shall not be
included in the accrual or satisfaction of this requirement. Breach of this
provision in any manner shall be deemed a material breach for which the Licensor
may pursue termination in full accord with this Agreement.
7.06 Remedy on Inability to Supply Demand. In the event of or at the time the
Licensee should be unable to supply the Demand for the Licensed Material, the
Licensor shall have the right after reasonable notice to the Licensee to engage
in sufficient efforts (including licensing to others) to fill such demand over
and above the then present capacity of the Licensee but only so long as the
Licensee shall be unable to fulfill said demand or otherwise gives its consent
to the Licensor to engage in such efforts. Otherwise, the Licensor shall have
the right to pursue termination in accord with Section 3.02(a)(iv) hereof.
ARTICLE VIII
QUALITY CONTROL; STANDARD OPERATING PROCEDURES
8.01 Quality Control. Since quality control and quality assurance protocols
(hereinafter "QC/OA") are essential to the efficient operation of the Technology
and Process, and the failure to conform to these protocols may result in the
failure of the Technology and Process to function as contemplated hereby, the
Licensee hereby agrees that it shall, pursuant to this Agreement and each
individual Site Specific Agreement, cause strict adherence to all QC/QA
standards for each site precisely equivalent to those provided for in the
Standard Operating Procedure (the "SOP") manual, which manual shall be provided
to the Licensee and/or site operator and the individual employees of the site
operator by the Licensor.
8.02 Standard Operating Procedures. As part of the preparation of the final
design proposal for each site, the Licensor shall prepare a site specific SOP
manual for each site. All personnel trained by the Licensor will be trained
according to the standard operating procedure of their respective sites. All
necessary copies of the SOP manual shall be provided to trained personnel and/or
the site operator and/or the Licensee at the expense of the Licensor.
8.03 QC/QA Reporting Requirement. The Licensee shall, pursuant to this Agreement
and each individual Site Specific Agreement, cause to be enforced strict
compliance with all site specific QC/QA reporting requirements detailed in each
site specific SOP manual, to be provided prior to the commencement of operations
at each site.
8.04 Procedure on Failure to Comply. Strict adherence to the QC/QA protocols and
the SOP shall be required. Since strict compliance with the SOP and QC/QA
protocols is critical to the effective use of the Licensed Material, the
Licensee, as a part of the consideration for the License herein granted, agrees
to
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cause strict compliance with the SOP and QC/QA protocols. The Licensee further
covenants that it shall have the responsibility and authority to enforce
compliance of these protocols, and shall do so in strict compliance with the
terms and provisions of this Article.
(a) Notice of Non-Compliance. Any deviation from the QC/QA protocols or
any material operating provision of the SOP will result in the
issuance of a Notice of Non-Compliance. The notice will issue to the
Licensee as well as to the site operator. The site operator will then
be given ten days (10) to cure the compliance deficiency. If the
deficiency remains uncured, an additional notice will issue. The site
operator will be given ten (10) additional days to cure the
deficiency. This process of notice and instruction to cure will repeat
a maximum of five (5) times for the same deficiency. If the deficiency
at issue still remains uncured, the Licensor shall issue to the
Licensee and the site operator a Notice of Issuance of Penalty.
(b) Issuance of Penalty. The Licensor may issue to the Licensee a fine not
to exceed $15,000 for each penalty required to be imposed. The
Licensee shall then enforce and make all reasonable efforts to collect
this penalty as against the site operator.
(c) Visitation. The Licensor, at its option, may at any time elect to
visit the site in violation in order to ensure correction of any
deficiency. The reasonable costs of any such visitation shall be borne
equally by the Licensee and Licensor.
(d) Material Breach. Continued persistent failure to correct any one
single violation and/or deviation from the procedure as outlined
herein and in the individual per site SOP manuals over the course of
any six (6) month period will be deemed a material breach for which
the Licensor may pursue termination in full accord with the provisions
of this Agreement.
ARTICLE IX
MUTUAL COVENANTS
Each of the parties hereto covenants to the other party as follows:
9.01 Incorporation of Previous Agreements. The parties hereto agree that all
confidential information and/or evaluation materials, respectively defined in
the Nondisclosure and Confidentiality Agreements (collectively, the
"confidentiality agreements"), executed by the parties on December 30, 1997, and
disclosed in furtherance of this Agreement, shall remain confidential between
the parties and there will be no disclosure of these materials except as
provided under the terms of the confidentiality agreements and this Agreement.
9.02 Confidentiality of Terms. With the exception of acknowledging that this
exclusive license for the territory has been established for a minimum period of
ten (10) years, all other terms relating to this contract shall remain
confidential between the parties and there shall be no disclosure of them by a
party without the written consent of the other party, except as is necessary to
comply with any legal and/or accounting disclosure requirements.
9.03 General Confidentiality. Except as otherwise required by law or in
connection with judicial, administrative or arbitration proceedings (in which
case the disclosing party shall be afforded a reasonable opportunity to seek a
protective order), each of the parties agrees not to (i) disclose any
confidential information herein defined of the other party, or the remaining
terms of this Agreement, to any individual or entity (other than its directors,
officers, employees, agents and representatives with a need to know such
confidential information) or (ii) use any confidential information of the other
party for any purpose other than consummating the transaction contemplated
hereby and, with respect to Licensee, conducting the remediation, recovery
and/or treatment contemplated herein.
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9.04 Mutual Cooperation. The parties acknowledge that in order to further the
purposes of this Agreement, information containing or consisting of trade
secrets, customer lists and other confidential information may be communicated
by either party to the other. Such information may take the forms of plans,
drawings and data, and will be deemed confidential unless otherwise designated
by the Licensor of Licensee as "Non-Confidential Information." The parties
hereto agree to cooperate after the execution of this Agreement to the fullest
extent reasonably necessary to consummate fully the transaction contemplated
hereby, including but not limited to accounting for the transaction hereunder.
9.05 General Indemnification of Licensor. The Licensee shall not incur any
liability or indebtedness in the name of the Licensor, nor do or suffer any act
or thing which may render the Licensor liable for the payment of any money to
any third person for any purpose whatsoever, except as herein otherwise
provided. The Licensee hereby agrees to indemnify and hold the Licensor harmless
from all loss, expense (including reasonable attorney's fees) and damages
arising out of any claims, demands and liabilities incurred by its own neglect
in connection with the fulfillment of the terms and conditions of this
Agreement.
ARTICLE X
MISCELLANEOUS PROVISIONS
10.01 Representations and Warranties of Licensee. As of the date hereof,
Licensee represents and warrants to Licensee as follows:
(a) Authority. Licensee has full power, capacity and authority (corporate
or otherwise) to execute and deliver this Agreement, and to consummate
the transactions contemplated hereby. The execution and delivery of
this Agreement, and the consummation of the transactions contemplated
hereby, have been duly and validly authorized by Licensee, and no
other proceedings (corporate or otherwise) on the part of Licensee are
necessary to authorize this Agreement, or to consummate the
transactions contemplated hereby. This agreement has been duly and
validly executed and delivered by Licensee, and (assuming valid
execution and delivery by Licensor) constitutes the legal, valid and
binding agreement of Licensee.
(b) Consents and Approvals. There is no authorization, consent, order or
approval of, or notice to or filing with, any individual or entity
required to be obtained or given in order for Licensee to execute and
deliver this Agreement, to consummate the transactions contemplated
hereby and to fully perform its obligations hereunder.
(c) Absence of Conflicts. The execution, delivery and performance by
Licensee of this Agreement, and the consummation by Licensee of the
transactions contemplated hereby and thereby, will not, with or
without the giving of notice or lapse of time or both, (i) violate any
provision of law, statute, rule or regulation to which Licensee is
subject, (ii) violate any order, judgment or decree applicable to
Licensee, or (iii) conflict with or result in a breach or default
under any term or condition of the Certificate of Incorporation or By
Laws of Licensee, or any agreement or other instrument to which
Licensee is a party or by which it is bound.
(d) Brokers and Finders. Neither Licensee nor any of its officers,
directors, employees, Affiliates or associates has employed any
broker, finder or investment banker, or incurred any liability for any
brokerage fees, commissions or finders' fees in connection with this
Agreement or the transactions contemplated by this Agreement.
(e) Related Companies and Affiliates. The Licensee has the means to
exploit the entire market in the Grant Territory, and to arrange for
timely payment of all fees and royalties herein defined itself or
through existing arrangements with Related Companies or other third
parties.
- --------------------------------------------------------------------------------
22
<PAGE>
10.02 Licensee Covenant to Assist in Approvals. The Licensee hereby covenants,
as part of the consideration of this Agreement, to engage in all reasonable
efforts to secure all approvals reasonably required by the Licensor, including
but not limited to approval to the EPA SITE program and any and all patent
approvals in each national market in which the Licensee will market the Licensed
Material.
10.03 Survival of Representations and Warranties; Covenants; Indemnities. All
representations, warranties, covenants and indemnities contained herein or made
in writing by any party in connection herewith shall survive the termination or
expiry of this Agreement indefinitely. All covenants contained herein shall
survive until performed fully. The provisions of payment of (and accounting in
respect to) the fees detailed in Article IV of this Agreement and other monies
due to the Licensor under this Agreement shall survive the termination of expiry
of this Agreement.
10.04 Severability. If any provision of this Agreement or the application of
such provision to any person or circumstances shall be held invalid, the
remainder of this Agreement, or the application of such provision to persons or
circumstances other than to those to which it was held invalid, shall not be
affected thereby, shall be severable, shall inure to the benefits of both
parties and shall be valid and enforceable in accordance with their terms.
10.05 Further Acts. The parties hereto agree, as part of the consideration to
this Agreement, to perform such further acts and execute such additional
instruments as may be necessary to carry out the full intent and purpose of this
Agreement.
10.06. Counterparts. This agreement may be executed in several counterparts,
each of which shall be deemed an original, but all of which shall constitute one
and the same instrument.
10.07 Headings. The article, section and provision headings contained in this
Agreement are inserted for convenience only and shall not affect in any way the
meaning or interpretation of this Agreement.
10.08 Application. This agreement applies to, inures to the benefit of, and
binds the parties hereto and, subject to the express assignment provisions
hereof, their respective successors and assigns.
10.09 Scope. This agreement together with the attachments annexed hereto
constitutes the entire agreement between the parties. It supercedes any prior
agreement or understandings between them as to the subject matter contemplated
herein, and it may not be modified or amended in any manner other than as set
forth herein.
10.10 Amendment and Modification. This agreement may only be amended, modified
or supplemented by written agreement of the parties.
10.11 Assignment. Licensor shall have a right to assign any and all of its
rights under this Agreement to any Affiliate or other entity owned or controlled
by Licensor provided that Licensor and the assignee shall be jointly and
severally liable to perform all of Licensor's obligations hereunder. Otherwise,
neither this Agreement nor any of the rights, interests or obligations hereunder
shall be assigned by either the parties hereto without the express prior written
consent of the other party, except the Licensor or Licensee may assign their
respective rights and obligations under this Agreement to any purchaser of all
or substantially all of their respective assets or the assets or their
respective companies.
10.12 Waiver. Any failure of the Licensor, on the one hand, or the Licensee, on
the other, to comply with any obligation herein may be expressly waived
hereunder, but such waiver shall not operate as a waiver of, or estoppel with
respect to, any subsequent or other failure. Any waiver must be in writing and
duly executed by the appropriate party. The remedies set forth in this Agreement
shall be cumulative and no one shall be construed as exclusive of any other or
of any remedy provided by law. The failure of any party to exercise any remedy
at any time shall not operate as a waiver of them or the right of such party to
exercise any remedy for the same or subsequent default at any time.
10.13 Reservation of Rights. All rights not specifically and expressly granted
to the Licensee by this Agreement are reserved to the Licensor.
- --------------------------------------------------------------------------------
23
<PAGE>
10.14 Third Parties. Except as specifically set forth or referred to herein,
nothing herein shall be construed to confer upon or give to any party other than
the parties hereto and, only if applicable, their successors or permitted
assigns, any rights or remedies under or by reason of this Agreement.
10.15 No Agency or Partnership. The parties are not partners or joint ventures
nor is the licensee entitled to act as the Licensor's agent, nor shall the
Licensor be liable in respect of any representation, act or omission of the
Licensee of whatever nature.
10.16 Force Majeure. The parties hereto shall not be liable for the failure of
performance hereunder if occasioned by war, declared or undeclared, fire, flood,
acts of God, interruption of transportation, embargo, accident, explosion,
inability to procure or shortage of supply of raw materials, equipment, or
production facilities, prohibition of import or export of the Licensed Materials
covered hereby, governmental orders, regulations, restrictions, priorities or
rationing, or by strike, lockout or other labor troubles interfering with the
production or transportation of such goods or with the supplies of raw materials
entering into their production of or any other cause beyond the control of the
parties. Any suspension of performance by reason of this article shall be
limited to the period during which such cause of failure exists, but such
suspension shall not affect the running of the term of this Agreement.
(a) Merger or Acquisition. In the event of the direct or indirect
acquisition, or assumption of a 20% or greater controlling interest of
the Licensee by any superior authority, the Licensor shall, at its
option, have the right to terminate this Agreement at any time
thereafter upon giving written notice thereof to the Licensee, and,
upon the giving of such notice of termination, this Agreement shall
terminate forthwith.
(i) Continuing Rights and Obligations. In the event of such
termination, the Licensee and/or the relevant superior authority
shall be entitled to income as provided for by the terms of this
Agreement, and shall remain obligated to the Licensor for all
royalties payable and duties owing hereunder for only those
sites, as that term is herein defined, existing upon termination
in the event provided for by subparagraph 10.16(a) hereof. In the
event of any such termination, the Licensor hereby covenants to
contract or otherwise deal with the Licensee and/or the relevant
superior authority on a site by site basis as is reasonably
necessary for each of these existing sites.
(ii) Non-Exclusivity. In the event of the direct or indirect
acquisition, or assumption of a 20% or greater controlling
interest of the Licensee by any superior authority, the Licensor,
at its option, and in lieu of termination, may choose to excise
the exclusivity provisions from this Agreement and may license
the Licensed Material to others for the exploitation of the Grant
Territory market. If the Licensor chooses to exercise this
option, there shall be no effect on the royalties payable and
duties owing to the Licensor pursuant to the remaining terms of
this Agreement.
10.17 Conflicts. In the event that any provision, term, condition, or object of
this Agreement may be in conflict with any law, measure, ruling, court judgment
(by consent or otherwise), or regulation of any governmental authority, or any
department or agency thereof, and the legal counsel of either party shall advise
that in their considered opinion such conflict, or a reasonable possibility of
such conflict exists, then either party may propose to the other appropriate
modifications of this Agreement to avoid such conflict. In such case, if an
agreement or modification is not reached within sixty (60) days, the party
making such proposal, after thirty (30) day written notice to the other party,
may terminate this agreement in its entirety, as of a date subsequent to such
thirty (30) days, and which shall be specified in said notice.
10.18 Government Approval. Any approval of this Agreement by any government
which may require the Licensee to seek its approval to enable the Licensee to
enter into this Agreement or to make payments
- --------------------------------------------------------------------------------
24
<PAGE>
hereunder in United States dollars in the United States of America shall be
secured in writing by the Licensee who shall supply the same or a true copy
thereof to the Licensor within six (6) months of the date of this Agreement.
10.19 Joint and Several. All agreements on part of either of the parties which
comprises more than one person or entity shall be joint and several.
10.20 Currency. Throughout this Agreement the currency is U.S. Dollars.
10.21 Entire Agreement. This agreement sets forth the entire agreement and
understanding between the parties as to the subject matter of this Agreement and
merges all prior discussions between them, and neither of the parties shall be
bound by any conditions, definitions, warranties or representations with respect
to the subject matter of this Agreement, other than as expressly provided in
this Agreement or as duly set forth on or subsequent to the date hereof in
express writing and signed by a proper and duly authorized representative of the
party to be bound thereby. This written agreement embodies all of the
understanding and obligations between the parties with respect to the subject
matter hereof.
ARTICLE XI
GOVERNING LAW
11.01 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to its
conflicts of law principles.
ARTICLE XII
NOTICE PROVISIONS
12.01 Notices. All notices, consents, requests, demands and other communications
required or permitted hereunder shall not be binding unless in writing and shall
be deemed to have been duly given when delivered by hand or by facsimile
transmission (transmission confirmed and hard copy mailed by first class mail)
or three (3) days after mailed, certified or registered mail with postage
prepaid;
(a) If to Licensor, to:
KBF Pollution Management, Inc.
1 KBF Plaza
End of Jasper Street
Paterson, New Jersey 07522
Attn: Lawrence M. Kreisler
Fax No.: 973-942-7700
or to such other person or address as the Licensor shall furnish to the
Licensee in writing by notice given in the manner set forth above.
(b) If to the Licensee, to:
Solucorp Industries, Ltd.
250 West Nyack Road
West Nyack, New York 10994
Attn: Peter Mantia
Fax No.: 914-623-4987
or to such other person or address as the Licensee shall furnish to the
Licensor in writing by notice given in the manner set forth above.
- --------------------------------------------------------------------------------
25
<PAGE>
12.02 Adequacy of Service. Notice given personally shall be deemed given at the
time of delivery. Notice sent by post in accord with this clause shall be deemed
given at the commencement of business on the second business day following its
posting. Notice sent by telefax or facsimile transmission in accord with this
clause shall be deemed given at the time of actual transmission and must be
accompanied by notice by post. Notice sent by post must either be sent certified
mail, return receipt requested, or by Federal Express or other suitable licensed
overnight carrier.
ARTICLE XIII
DELIVERIES UPON EXECUTION
13.01 Deliveries. The following deliveries shall be made upon execution and,
unless waived by the appropriate party in writing or by consummating the
transactions contemplated hereby without them, are conditions precedent to
execution of this Agreement:
(a) Letters patent and applications for letters patent of the Licensor
(Attachment A);
(b) All relevant agreements as and between the Licensee and any Related
Company in the Grant Territory with whom the Licensee intends on
working or partnering with to conduct the remediation, recovery and/or
treatment activities contemplated herein;
(c) Samples, and precise quantity, flow, throughput and existing process
data for the anticipated first site;
(d) All unrestricted common stock of the Licensee due upon execution; and,
(e) All other attachments to this Agreement as deemed reasonably necessary
by either party.
13.02 Further Assurances. Licensor and Licensee shall each deliver, or cause to
be delivered, all other documents reasonably required to be delivered by the
other party at the execution and shall take all other actions which are
reasonably necessary or appropriate in order to consummate fully the
transactions contemplated hereby.
13.03 Compliance With Payment Schedule. Concurrently upon execution of this
Agreement, Licensee shall pay all fees owing to Licensor in accord with the
terms of Article IV.
IN WITNESS WHEREOF, Licensor and Licensee have caused this Agreement to be duly
executed in their names by their proper officers thereunto duly authorized and
their corporate seals to be hereonto affixed on the date hereinafter set forth.
KBF POLLUTION MANAGEMENT, INC. SOLUCORP INDUSTRIES
By: /s/ LAWRENCE M. KREISLER By: /s/ PETER R. MANTIA
----------------------------------- -----------------------------
Lawrence M. Kreisler Peter R. Mantia
President, Chief Executive Officer President
Date: March 20, 1998 Date: March 20, 1998
-------------- --------------
[Corporate Seal]
- --------------------------------------------------------------------------------
26
M.H. MEYERSON & CO., INC.
NEWPORT OFFICE TOWER
525 WASHINGTON BOULEVARD/34th FLOOR
JERSEY CITY, NJ 07310
April 8, 1998
Via Facsimile 914-623-4987
Mr. Peter Mantia
President
Solucorp Industries, Ltd.
250 West Nyack Road
West Nyack, NY 10994
Gentlemen:
This will confirm the understanding and agreement between M.H. Meyerson &
Co., Inc. ("Meyerson") and Solucorp Industries, Ltd. ("Solucorp") as follows:
1. Solucorp hereby engages Meyerson on an exclusive basis to render
financial advisory services to Solucorp looking to the potential of an
eventual sale as hereinafter defined to a party yet to be determined
("Purchaser"), and Meyerson hereby accepts such engagement. Meyerson
agrees to provide financial advisory services to Solucorp which shall
include advising on transaction structures and assisting in
negotiations and related strategy. This letter agreement is not made
in contemplation of Meyerson's finding and/or introducing the
Purchaser to Solucorp but shall not preclude Meyerson from acting in
this manner as well.
2. For purposes of this Agreement, a "sale" shall mean any transaction or
series or combination of transactions, other than in the ordinary
course of trade or business, whereby, directly or indirectly, a
material interest (i.e., 10% or more) in Solucorp or any of its
subsidiaries, or any of their respective assets, is transferred for
consideration, including, without limitation, a sale or exchange of
capital stock of the shareholders of Solucorp, or assets, a merger or
consolidation, a tender or exchange offer, the formation of a joint
venture, minority investment or partnership, or any similar
transaction, to or with Purchaser.
3. As compensation for the services rendered by Meyerson hereunder,
Solucorp shall pay Meyerson one and one-half (1-1/2%) percent of the
<PAGE>
Mr. Peter Mantia
Solucorp Industries, Ltd.
April 8, 1998
page 2
proceeds received by Solucorp or its shareholders, as the case may be,
upon the closing of the sale to Purchaser. Compensation shall be
payable at the closing. If for any reason whatsoever the transaction
fails consummation, no fee or other compensation will be due or
payable.
4. Meyerson shall bear its own out-of-pocket expenses incurred during the
period of its engagement hereunder with respect to the services to be
rendered by it hereunder, without seeking reimbursement from
Solucorp.
5. Solucorp shall:
(a) indemnify Meyerson and hold it harmless against any losses,
claims, damages or liabilities to which Meyerson may become
subject arising in any manner out of or in connection with the
rendering of services by it to Solucorp hereunder, unless it is
finally judicially determined that such losses, claims, damages
or liabilities arose out of the gross negligence or bad faith of
Meyerson; and
(b) reimburse Meyerson immediately for any legal or other expenses
reasonably incurred by it in connection with investigating,
preparing to defend or defending any lawsuits, claims or other
proceedings arising in any manner out of or in connection with
the rendering of services to Solucorp hereunder; provided,
however, that in the event a final judicial determination is
made to the effect specified in subparagraph 5(a) above,
Meyerson will remit to Solucorp any amounts reimbursed under this
subparagraph 5(b).
Solucorp agrees that the indemnification and reimbursement commitments
set forth in this paragraph shall apply whether or not Meyerson is a
formal party to any such lawsuits, claims or other proceedings, that
Meyerson is entitled to retain separate counsel of its choice in
connection with any of the matters to which such commitments relate
and that such commitments shall extend upon the terms set forth in
this paragraph to any controlling person, partner, director, officer,
employee or agent of Meyerson.
6. This letter agreement shall be in effect for a period of three years
from the date hereof. However, compensation shall also be due Meyerson
upon any
<PAGE>
Mr. Peter Mantia
Solucorp Industries, Ltd.
April 8, 1998
page 3
transaction commenced prior to the expiration of this letter
agreement, even if the sale is completed after termination hereof.
7. Except as required by applicable law, any advice to be provided by
Meyerson under this Agreement shall not be disclosed publicly or made
available to third parties (except directors, attorneys, advisors,
auditors and employees of Solucorp) without the prior approval of
Meyerson.
8. Solucorp agrees that Meyerson has the right to place tombstones or
other announcements in financial and other newspapers and journals at
its own expense describing its services to Solucorp hereunder upon the
consummation of the sale, provided that Meyerson will submit a copy of
any such materials to Solucorp for its approval, which approval shall
not be unreasonably withheld or delayed.
9. This Agreement may not be amended or modified except in writing and
shall be governed by and construed in accordance with the laws of the
State of New York applicable to contracts made and to be performed
solely in such State by the citizens thereof. Any dispute arising out
of this Agreement shall be adjudicated in the courts of the State of
New York or in the United States District Court for the Southern
District of New York, and Meyerson and Solucorp hereby agree that
service process upon either of the parties by certified mail at the
address shown in this Agreement shall be deemed adequate and lawful.
The parties hereto shall deliver notices to each other by personal
delivery or by certified mail at the address set forth above.
<PAGE>
Mr. Peter Mantia
Solucorp Industries, Ltd.
April 8, 1998
page 4
If the foregoing correctly sets forth the understanding and agreement
between Meyerson and Solucorp, please so indicate in the space provided for that
purpose below, whereupon this letter shall constitute a binding agreement as of
the date first above written.
M.H. MEYERSON & CO., INC.
By: /s/ MICHAEL SILVESTRI
-----------------------------
Michael Silvestri, President
AGREED:
SOLUCORP INDUSTRIES, LTD.
By: /s/ PETER MANTIA
---------------------
FINDERS AGREEMENT
This FINDERS AGREEMENT dated as of April 22, 1998 (this "Agreement") by and
between EPS Environmental, Inc. d/b/a SOLUCORP Industries, a British Columbia
corporation licensed in New York and New Jersey with its principal offices
located at 250 West Nyack Road, West Nyack, New York 10994 ("Solucorp"), and
Scopus Evaluation Services, Inc., located at 311 East 71st Street, Suite 11F,
New York, NY 10021. ("SES")
W I T N E S S E T H
WHEREAS, Solucorp is the sole and exclusive owner of a process to stabilize
metal contaminated soils by the addition of proprietary reagents to the
contaminated soils (hereinafter referred to as the "Process");
WHEREAS, Solucorp is interested in entering into this Agreement with SES
for the purpose of increasing Solucorp's client base and that of it's licensees;
and
WHEREAS, it is the intention of the parties hereto that through SES's
efforts with Turner Construction and other named accounts and territories,
Solucorp will increase its market penetration and revenues within the State of
New York and other named accounts.
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and intending to be legally bound
hereby, the parties hereto agree as follows:
SECTION 1. Cooperation. Solucorp will provide a market evaluation of the
application of the Process.
SECTION 2. Solucorp Support. At all times during the term of this
Agreement, Solucorp will provide sufficient technical and marketing support, as
limited to Solucorp's capabilities, to SES. Upon SES's request, Solucorp shall,
within reason, promptly make available such of its officers and personnel so as
to enable SES to perform his obligations set forth in this Agreement. Solucorp
will contract all acceptable work with a permitted general contractor (including
itself) licensed in New York, New Jersey or, if applicable, in other named
territories.
SECTION 3. License.
(a) Subject to the immediately following sentence, Solucorp hereby
grants to SES the non-exclusive license and right to market and promote the
Process in New York and to other named accounts and in other territories for the
Term (as hereinafter defined) of this Agreement.
(b) All potential work, projects, contracts and accounts will be
identified in writing by SES and must be approved prior to contract by Solucorp,
which approval shall not be unreasonably withheld or delayed.
SOLUCORP Industries Ltd. * 250 West Nyack, New York 10994 * Tel: 914-625-2333
Fax: 914-623-4987 * http://www.solucorpltd.com
<PAGE>
(c) Solucorp recognizes that such marketing and promotional efforts of
SES could likely result in further direct and indirect accounts contacting
Solucorp directly and unbeknownst to SES. Solucorp acknowledges that it will
make every possible effort in identifying these accounts as rightfully those
resulting from SES's efforts.
SECTION 4. Compensation.
(a) In consideration of SES's obligations set forth herein, Solucorp
hereby covenants and agrees that it shall promptly pay to SES the following
amounts for all remediation jobs, work, projects or contracts obtained by
Solucorp or its affiliates as a direct or indirect result of SES's efforts or
contacts: Compensation will vary depending on the specific service provided by
SES and as a result, will be negotiated on a project by project basis. The
minimum commission rate will be set at 3% of the Gross Revenue unless otherwise
agreed to in writing by both parties.
Such amounts shall be paid by Solucorp by SES in immediately available
funds within ten (10) days after Solucorp's receipt of any amounts from any
third party. All amounts paid to SES shall be made without any offset or
deduction; provided, however, that SES shall not be entitled to commissions with
respect to such amounts as are invoiced by Solucorp which have not been paid by
the applicable customer.
(b) For purposes of this Agreement, the term "Gross Revenues" means
the total dollar amount of all revenues due in connection with each job, work,
project or contract obtained by Solucorp or its affiliates as a direct result of
SES's efforts or contacts before deductions for any purpose.
(c) Solucorp's obligations to make such payments shall survive the
termination of this contract.
SECTION 5. Use of the Process. Except as otherwise provided in this
Agreement, this Agreement shall not constitute a license for the use of the
Process and any use of the Process by SES will be subject to the approval by
Solucorp.
SECTION 6. Confidentiality and Other Matters.
(a) The parties acknowledge that in order to further the purposes of
this Agreement, information containing or consisting of trade secrets, customer
lists and other confidential information may be communicated by Solucorp to SES.
Such information may take the form of plans, drawings and data and will be
deemed confidential unless otherwise designated by Solucorp or otherwise
available to the public. During the Term and for a period of twelve (12) months
thereafter, Solucorp shall have the right to apply and obtain from any state
court located in New Jersey or New York a restraining order to prevent SES from
disclosing such confidential information to third parties unless such disclosure
is required by law or a court of other legal authority.
(b) SES hereby agrees that during the Term of this Agreement it will
not handle or represent any directly competitive products to those of Solucorp
in the United States or otherwise promote the sale of any such products or
services in the United States, except, in all cases, those of
SOLUCORP Industries Ltd. * 250 West Nyack, New York 10994 * Tel: 914-625-2333
Fax: 914-623-4987 * http://www.solucorpltd.com
<PAGE>
Solucorp. For a period of twelve (12) months following the termination of this
Agreement, SES agrees that it will not work for any competitors of Solucorp
involved in heavy metal remediation in the United States.
SECTION 7. Discrepancies.
(a) Should any provisions of this Agreement be determined to be
unenforceable or prohibited by any applicable law, this Agreement shall be
considered divisible as to such provision, which shall be inoperative and the
remainder of this Agreement shall be valid and binding as though such provisions
were not included herein.
(b) If any part of this Agreement should be disputed in a court of
law, the parties agree that the proper venue will be the Superior Court of New
York in Rockland County.
SECTION 8. Term. The term of this Agreement will be for 12 months from the
date first entered on page 1. Either party can cancel the Agreement upon 30 days
written notice upon mutual agreement or upon review and acceptance of cause by
an independent arbitrator. The agreement will be automatically renewed from year
to year unless Notice of Cancellation is served in writing by either party at
least sixty (60) days prior to the end of the year.
SECTION 9. Covenant. In soliciting business on behalf of Solucorp,
___________ shall only make representations and warranties concerning Solucorp's
products or services as are contained in materials furnished by Solucorp to SES
(all such materials being referred to herein as the "Descriptive Materials").
SECTION. 10. Expenses. Each party hereto will assume and pay all expenses
of their respective business operations, including, without limitation, any and
all costs and expenses related to their respective telephones, automobiles,
gasoline costs, postage, wages, taxes, social security taxes, unemployment and
disability benefits, workman's compensation, etc.
SECTION 11. Relationship. Except as otherwise provided herein or as may be
authorized in writing by Solucorp, SES shall have no authority to contract any
obligation in the name of, on account of, or on behalf of, Solucorp, or to make
any representation or commitment with respect to Solucorp and/or its products or
services.
SECTION 12. Assignment. Except as otherwise provided herein, this Agreement
may not be assigned by the parties hereto.
SECTION 13. Default. Each party hereto shall have the right to correct a
default in the performance of such party's obligations hereunder within thirty
(30) days upon receiving notice by certified mail to the appropriate address of
the defaulting party.
SECTION 14. Agreement. This Agreement constitutes the entire Agreement
between the parties hereto and supersedes and cancels any and all previous
contracts, agreements and understandings, and this Agreement may be altered only
by written instrument duly executed by both parties hereto.
SOLUCORP Industries Ltd. * 250 West Nyack, New York 10994 * Tel: 914-625-2333
Fax: 914-623-4987 * http://www.solucorpltd.com
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their duly authorized officers as of the date
first written above.
SOLUCORP INDUSTRIES
By: /s/ PETER MANTIA
- -------------------------- ---------------------------
Witness Name: Peter Mantia
Title: President
Date: 4/21/98
-------------------------
SCOPUS EVALUATION SERVICES, INC.
By: /s/ HARVEY MACHAVER
- -------------------------- ---------------------------
Witness Name: Harvey Machaver
Title: President
Date: 4/24/98
-------------------------
SOLUCORP Industries Ltd. * 250 West Nyack, New York 10994 * Tel: 914-625-2333
Fax: 914-623-4987 * http://www.solucorpltd.com
<PAGE>
ADDENDUM I
ACCOUNT EXCLUSIVITY
The following account(s) are registered exclusively to SES for a period of six
(6) months from the date below at which time Solucorp and SES will either extend
or cancel exclusivity based on progress made. Progress shall be understood if
contact has been made and the probability of a contract or sale exists with the
exclusive account or a third party which the exclusive account has referred to
Solucorp.
ACCOUNT EXCLUSIVITY PERIOD
------- ------------------
Turner Steiner, ENCOM, May 1, 1998 -- October 31, 1998
ET and subsidiaries, affiliates
and joint venture partners
Eco Systems Strategic, Inc. May 1, 1998 -- October 31, 1998
SOLUCORP Industries Ltd. * 250 West Nyack, New York 10994 * Tel: 914-625-2333
Fax: 914-623-4987 * http://www.solucorpltd.com
KBF POLLUTION MANAGEMENT INC.
1 KBF PLAZA
END OF JASPER STREET
PATERSON, NEW JERSEY 07522
Solucorp Industries Ltd.
250 West Nyack Road
West Nyack, NY 10994
-and-
Sommer & Schneider LLP
600 Old Country Road
Garden City, NY 11530
Gentlemen:
We refer to the licensing agreement (the "Agreement") between KBF Pollution
Management Services, Inc., a New York corporation ("KBF") and EPS Environmental,
Inc., a subsidiary of Solucorp Industries Ltd., a company existing under the
laws of the Yukon which previously was existing under the laws of British
Columbia (the "Company"). Pursuant to Section 4.01(a) of the Agreement, the
Company was to pay an initial issuance license fee to KBF by issuance of shares
of the Company's common stock, in part to be held in escrow by Sonageri & Fallon
LLC.
This shall confirm our agreement to accept 190,550 shares of the Company's
Common Stock (the "Shares") which we understand are being issued to KBF pursuant
to the exemption set forth in Section 4(2) of the United States Securities Act
of 1933, as amended (the "Act"), as the initial license fee. No other provision
of the Agreement shall be modified hereby.
KBF, in connection with the acquisition of 190,550 Shares, hereby
represents, warrants and covenants to the Company and its counsel, as follows:
(a) The undersigned understands that the Shares to be received by it have
not been registered under the Act, or any state securities act in reliance on
exemptions therefrom.
(b) The Shares are being acquired solely for KBF's own account, for
investment and are not being acquired with a view to or for the resale,
distribution, subdivision or fractionalization thereof, the undersigned has no
present plans to enter into any such contract, undertaking, agreement or
arrangement and the undersigned further understands that the Shares may only be
resold pursuant to a registration statement under the Act or pursuant to an
exemption under the Act, including Rule 144, promulgated thereunder (which
requires among
<PAGE>
Solucorp Industries Ltd.
Sommer & Schneider LLP
Page 2
other things, that there be an active market for the Company's Common Stock,
that the Shares be held continuously for at least one year from the date they
were acquired from the Company or an affiliate of the Company and resold under
certain specified conditions including limitations on the number of Shares which
may be resold), if available, or pursuant to some other available exemption.
(c) KBF is an "accredited investor" as deferred in Rule 501 of Regulation
D, under the Act and has reviewed all information deemed necessary by it in
making the decision to accept Shares in lieu of cash as an initial license fee.
The undersigned acknowledges that it understands the meaning and legal
consequences of the above representations and warranties, and hereby agrees to
indemnify and hold harmless the Company and its counsel from and against any
and all loss, damage or liability due to or arising out of a breach of any such
representation or warranty.
The undersigned agrees that the certificate or certificates representing
the Shares will be inscribed with the following legend:
"The Shares represented by this certificate have not been registered
under the Securities Act of 1933. The Shares have been acquired for
investment and may not be sold, transferred, assigned in the absence of an
effective registration statement for these Shares under the Securities Act
of 1933 or an opinion of counsel reasonably acceptable to the Company that
registration is not required under said Act."
KBF POLLUTION MANAGEMENT, INC.
By: /s/ LAWRENCE M. KREISLER
------------------------------
Lawrence M. Kreisler
President and CEO
Dated: 5-18, 1998.
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
FINANCIAL STATEMENTS OF SOLUCORP INDUSTRIES LTD FOR THE QUARTERLY PERIOD
ENDED MARCH 31, 1998 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH
FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-END> MAR-31-1998
<CASH> 134,825
<SECURITIES> 0
<RECEIVABLES> 3,487,454
<ALLOWANCES> 41,107
<INVENTORY> 1,194,894
<CURRENT-ASSETS> 5,311,951
<PP&E> 341,848
<DEPRECIATION> 15,375
<TOTAL-ASSETS> 7,697,616
<CURRENT-LIABILITIES> 1,252,859
<BONDS> 0
0
0
<COMMON> 18,610,765
<OTHER-SE> 0
<TOTAL-LIABILITY-AND-EQUITY> 7,597,616
<SALES> 512,867
<TOTAL-REVENUES> 1,068,321
<CGS> 544,901
<TOTAL-COSTS> 1,381,347
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 3,873
<INCOME-PRETAX> (259,480)
<INCOME-TAX> 0
<INCOME-CONTINUING> 0
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (259,480)
<EPS-PRIMARY> (0.01)
<EPS-DILUTED> 0
</TABLE>
