EXHIBIT 4.4
RESEARCH AND DEVELOPMENT AGREEMIENT
This Agreement is made and signed on this _____ day of May, 1999 by and between:
FREYSSINET INTERNATIONAL (STUP) SNC.
French Company (Freyssinet) whose registered office is at 781408 Valizy
Villacoublay, 10 rue Paul Dautier acting for itself and for any subsidiaries
more than twenty-five (25) percent owned by it, represented by Mr. Jean Pierre
Marchand-Arpoume, Chairman & Chief Executive Officer.
And
PURE TECHNOLOGIES LTD.
Canadian Company (Pure) whose registered office is at Calgary, Alberta acting
for itself and for any subsidiaries more than twenty-five (25) percent owned by
it, represented by Mr. James Paulson, Chairman.
WHEREAS
FREYSSINET is a world-wide leader in post tensioning and cable structures.
PURE is a specialist in acoustic monitoring and monitoring systems for acoustic
and other events in cables, tendons, and structures.
Both parties desire to co-operate together in order to develop their research
and development in their mutual field of activities.
PURE has developed an acoustic system for the monitoring of steel tendons such
as prestressing or suspension cables or cable stays, and the detection of shocks
to record accident events. PURE is developing a vibration monitoring system
capable of giving an analysis of vibration causes in steel tendons. These
systems, and their use or potential use to monitor structures are called the
"Field" in this agreement.
FREYSSINET and PURE are entering a license agreement (called "The License
Agreement" in this agreement) whereby FREYSSINET will represent PURE in the
marketing of products and licenses for applications, some of which are expected
to involve the Field, and FREYSSINET and PURE wish to co-ordinate certain
research and development with regard to the Field, and cooperate with respect to
such research and development.
This agreement is intended to define co-operation conditions, by both parties
for particular projects (called in this agreement "Joint Projects").
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IT IS AGREED
1. A project shall be considered as a Joint Project when it is proposed by one
party in writing to the other as a Joint Project and is accepted as such in
writing by the other party. FREYSSINET and PURE hereby agree to co-operate
together exclusively for research and development on Joint Projects. The
first Joint Project will be the Vibration Monitoring Project, and it is
declared to be a Joint Project effective the date of this agreement.
2. Know how and expertise of each party will be shared by it with the other in
order to fulfil this agreement with respect to each Joint Project, as
follows:
FREYSSINET will bring its expertise and knowledge in prestressing and
cables and suspensions and PURE its knowledge in monitoring and acoustic
systems, as these sets of expertise relate to the particular Joint Project.
3. For each Joint Project:
(a) The parties shall set out a jointly agreed research program, which will
state what work is to be done on the Joint Project, which party is to be
responsible for each part of the work, and how the costs are to be shared.
If no research program is agreed within six months of the time a project is
declared to be a Joint Project, then the project shall cease to be a Joint
Project at the end of such six month period.
(b) except as provided in this paragraph, neither party will enter any
agreement to co-operate with any other party for research or development on
the subject matter of a Joint Project, or will carry out any research or
development, co-operation or collaboration or shared research with any
other party dealing with the subject matter of a Joint Project or dealing
with situations where products making use of the subject matter of a Joint
Project would be useful, while the Project is a Joint Project. However,
either party can discuss with suppliers or potential suppliers the
requirements for parts or components of products to be made or developed as
part of the Joint Project, and can enter agreements with governmental or
quasi-governmental organizations to fund research which is part of a Joint
Project.
(c) The parties will meet together at least once every three months to
discuss the research and development on the Joint Project, and the future
research and development to be done by each on the Joint Project including
any necessary revisions to the budget for the Joint Project,
(d) The parties will provide to each other copies of any research reports,
assessments of problems to be solved or technical requirements or patent
applications which they prepare in connection with the Joint Project or
with respect to situations and markets in which the Joint Project subject
matter may be useful.
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(e) Either party may notify the other on six months notice that it wishes
to terminate any Joint Project. The Joint Project then terminates at the
end of the six months notice period. When a Joint Project is terminated,
either party may continue independent research and development on the
subject matter formerly the Joint Project, subject to the other terms of
this agreement. Termination of any Joint Project does not affect any other
Joint Project, which the parties may have declared.
4. Except by other mutual agreement; PURE shall be the sole owner of any
patents or patent applications on inventions created from research and
development by Pure employees, officers or contractors on a Joint Project,
and Freyssinet shall be the sole owner of any patents or patent
applications on inventions created from research by Freyssinet employees,
officers or contractors. Each ownership will be discussed before
attribution. The party who is the owner of an invention shall have the
right to decide in which countries or group of countries it wishes to
protect the invention, but it must advise the other party of its decision
at least two months before the expiry of any priority period or Phase II
PCT period of the countries in which it intends to seek protection. If the
other party wishes to obtain protection in any other country, it may file
an application in such other country at its own expense. The application in
such other country shall be owned by the party owning the invention, but
the other party (provided it continues to pay all costs associated with the
application and eventual patent in such other country) shall have a
royalty-free licence with right to sublicense for the duration of the
patent for which it has paid the costs.
If an invention is made jointly by one or more employees, officers or
contractors of Pure, and one or more employees, officers or contractors of
Freyssinet, then any patent or patent application on the invention shall be
owned by Pure, but Freyssinet shall have a royalty free license to use the
invention and to make and license Products using the invention, for the
duration of the patent in any country where it had, at the time of
termination or expiry of the License Agreement, an Exclusive Territory as
defined in the License Agreement. The costs of obtaining the patent shall
be shared equally by both parties. Freyssinet shall have the right to file
for patent at its own cost in any country where Pure elects not to file.
Any license of joint inventions to third parties must be agreed upon by
Freyssinet and Pure until Patent expiration. Pure will keep a record of
these sublicenses.
5. Each party agrees to inform the other promptly in general terms of any
further development or improvement which could affect their research and
co-operation in the Field, including potential new markets or applications,
and may if it wishes inform the other of developments or improvements
outside the Field. Either party may advise the other of developments and
research ideas that it proposes as potential Joint Projects.
6. So long as the License Agreement has not expired or been terminated, the
subject matter of patents and patent applications relating to a Joint
Project shall be treated as Products under the Licensee Agreement, and
shall be subject to the terms of that agreement relating to Products. If
the License Agreement expires or is terminated for any reason, each party
shall not have any
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license under any patents or patent applications of the other, except as
otherwise provided herein.
7. Both FREYSSINET and PURE agree to consider the terms of this Agreement and
any data with respect to any Joint Project, whether written or oral,
drawing, computer data, or the like exchanged between them as confidential,
provided that it is designated in writing as confidential at the time it is
exchanged or within 30 days thereafter, and both parties admit the high
importance to preserve this confidentiality. Each party shall obtain from
its employees and officers such undertakings as may be reasonably necessary
in order to secure confidentiality on any information received, given or
linked with any Joint Project.
The parties shall not be obligated to keep confidential information of
which any Party can prove in writing:
o That he had prior to the receipt from the other Party without any
confidentiality attached to it;
o That was publicly available or became publicly available without the
fault of the party who received it from the other;
o That was communicated in good faith to him by a third party which was
not obligated by agreement with the other party to this agreement to
keep the information secret;
8. The territoriality of this agreement is world-wide.
9. This Agreement is valid for three years from its date, unless otherwise
agreed in writing, except that if the License Agreement terminates or
expires at any time for any reason, this agreement will terminate at the
same time.
In case of termination of this agreement, each must return to the
other party the confidential information of the other which has been
disclosed to it, except insofar as use of that information infiinges any
patent protection of the other, but each party may not disclose such
confidential information to a third party (except as provided in Article 7)
for 10 years after termination.
10. The parties agree to do their utmost to resolve amicably any conflict,
which could occur between them during the existence of this agreement.
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Any disputes or controversies arising under this Agreement shall be
determined by binding arbitration in accordance with the rules and procedures
for arbitration in London, England, which arbitration shall be conducted in
London, England. Each party shall bear its own costs of the arbitration and
shall pay one half cost of the costs of the establishment and operation of the
arbitration tribunal, until the Arbitrator decides which party is responsible
for arbitration costs.
Dated the day and year first above written.
PURE TECHNOLOGIES LTD.
Represented by:
"James E. Paulson"
-------------------------------
James E. Paulson
Chairman
Address: 1050,340 - 12th Avenue S.W.
Calgary, Alberta
Canada T2R lL5
FREYSSINET ENTERNATIONAL (STUP) SNC.
Represented by:
"Jean Pierre Marchand-Arpoume"
-------------------------------
Jean Pierre Marchand-Arpoume
Chairman & Chief Executive Officer
Address: 78140 Vehzy Villacoublay
10, rue Paul Dautier
France
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SCHEDULE "A"
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THE TRADEMARKS
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TRADEMARK REGISTRATION/APPLICATION NO.
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SoundPrint & Design Australia Application No. 792980
(covers Classes 9, 37, 41 & 42)
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SoundPrint & Design Canada Registration No. 467,010
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SoundPrint & Design China Class 09 - Filing No. 9700139641
Preliminary Approval No. 1293624
Class 37 - Filing No. 9700139642
Preliminary Approval No.1267442
Class 41 - Registration No.1257951
Class 42 - Registration No.1259900
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SoundPrint & Design CTM
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SoundPrint & Design Hong Kong Class 09 - Application No. 97 17802
Class 35 - Application No. 99 05518
Class 42 - Application No. 97 17801
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SoundPrint & Design Korea
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SoundPrint & Design United Kingdom Application No. 2153839
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SoundPrint & Design United States Registration No. 2,161,202
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