Annual Report — Form 10-K
Filing Table of Contents
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1: 10-K Annual Report 20 103K
6: EX-10.10 Material Contract 2 11K
7: EX-10.11 Material Contract 4 23K
8: EX-10.12 Material Contract 4 17K
9: EX-10.13 Material Contract 5 24K
2: EX-10.6 Material Contract 10 40K
3: EX-10.7 Material Contract 14 51K
4: EX-10.8 Material Contract 13 49K
5: EX-10.9 Material Contract 13 45K
18: EX-28.10 Information from a Report Furnished to State 1 10K
Insurance Regulatory Authorities
10: EX-28.2 Information from a Report Furnished to State 19 62K
Insurance Regulatory Authorities
11: EX-28.3 Information from a Report Furnished to State 2 12K
Insurance Regulatory Authorities
12: EX-28.4 Information from a Report Furnished to State 1 10K
Insurance Regulatory Authorities
13: EX-28.5 Information from a Report Furnished to State 2± 11K
Insurance Regulatory Authorities
14: EX-28.6 Information from a Report Furnished to State 4 19K
Insurance Regulatory Authorities
15: EX-28.7 Information from a Report Furnished to State 1 10K
Insurance Regulatory Authorities
16: EX-28.8 Information from a Report Furnished to State 2 12K
Insurance Regulatory Authorities
17: EX-28.9 Information from a Report Furnished to State 1 9K
Insurance Regulatory Authorities
EX-10.6 — Material Contract
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LICENSING AND CONSULTING AGREEMENT
THIS LICENSING AND CONSULTING AGREEMENT (THE "Supercrete
Agreement") made the 24th day of June, 1994.
B E T W E E N: RESEARCH SERVICES CORPORATION, a corporation duly
incorporated under the laws of the State of
Texas, United States of America
Hereinafter, called "RSC"
PARTY OF THE FIRST PARTY
- and - SUNCASTLE INVESTMENTS LIMITED, a corporation duly
incorporated under the laws of the Turks and
Caicos Islands, British West Indies
Hereinafter, called "POLIX"
PARTY OF THE SECOND PART
- and - ORLANDO A. BATTISTA, a resident of the State of
Texas, United States of America
Hereinafter called "Battista"
PARTY OF THE THIRD PART
WHEREAS RSC and/or Battista have pioneered new concrete
products, in particular superconcrete admixtures capable of
escalating compressive strengths and bulk properties of regular
concretes (referred to by same and hereinafter referred to as the
"Fastcrete Superconcrete");
AND WHEREAS RSC and Battista have extensive knowledge and
experience in the field of superconcrete chemistry and have expertise
in, and possess valuable technical information concerning,
superconcrete admixtures and bulk concrete products;
AND WHEREAS by Licensing and Consulting Agreements with RSC
and Battista dated as of this date, Polix has acquired the rights and
a license to processes whereby microcrystals can be recovered from
long chain polymers (said microcrystals being therein referred to as
"MCPs" and the rights and a license to technology for making
synthetic ivory, a synthetic polymer marble, forms of structural
carbon and graphite and theories for making diamonds from polymer
microcrystals (all of which are therein referred to collectively as
the "ICG Technology");
AND WHEREAS in addition to acquiring the rights and a
license for MCPs and the ICG Technology, Polix is desirous of
acquiring all of the rights, expertise, knowledge and a license to
the technical information and processes of RSC and Battista with
respect to the Fastcrete Supercrete on a continuing basis, together
with the consulting services of RSC and Battista, and they are
agreeable to granting and licensing same subject specifically to the
terms and provisions hereinafter contained.
NOW THEREFORE WITNESSETH that in consideration of the
premises, the terms and provisions hereinafter contained, and for
other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged by each of the Parties hereto, they
agree each with the others as follows:
ARTICLE I - INTERPRETATION
1.1 The Headings of the Articles of this Agreement are
inserted for convenience of reference only, and shall not affect the
meaning or construction hereof.
1.2 This Agreement shall be construed and interpreted in
accordance with the Laws of the State of Texas, Untied States of
America.
1.3 If any provision contained herein is determined to be
void or unenforceable in whole or in part, it shall not be deemed to
affect or impair the validity of any other provision herein, and each
such provision is deemed to be separate and distinct.
1.4 This Agreement constitutes the entire agreement
between the Parties hereto, pertaining to the licensing and
consulting arrangement as between them, and there are not, and shall
not be, any oral statements, representations, warranties,
undertakings or agreements between the Parties, and this Agreement
may not amended or modified in any respect except by written
instrument signed by all of the Parties hereto. Provided that this
Agreement and the terms and provisions herein contained, may be
waived, altered, modified or amended on the consent of all of the
Parties hereto, provided that no waiver, alteration, modification or
amendment of any of the terms or provisions shall be binding unless
the same be in writing, signed by all of the Parties hereto.
1.5 Where used in this Agreement, unless there is
something in the context or the subject matter inconsistent
therewith, the following terms shall have the following meanings
respectively:
(i) Effective Date - shall be the date on which
the grant and license to Polix commences, which shall be
the date of this Agreement;
(ii) Gross Sales - shall include all amounts
invoiced for Supercrete Product (as hereinafter defined) by
Polix, its affiliates, subsidiaries or sub-licensees for
which payment has been received, less any allowances for
returns, discounts, handling and shipping costs and any
taxes applicable thereto;
(iii) Supercrete Technology - shall be
inclusive of all technology, theories, data, records,
processes and other information which are the property of
RSC and/or Battista related to making any admixtures,
products and/or materials capable of escalating compressive
strengths and bulk properties of regular concretes, and/or
in any other manner enhancing or improving any
characteristics or properties of cement or concrete;
(iv) Patents - shall mean any patents issued
and/or filed, and any patent applications using both the
United States of America and foreign patent properties, as
they relate to the Technical Information, Processes or
Supercrete Product all as hereinafter defined and shall be
inclusive of any and all Trade Marks and Trade Names
related to Technical Information and Processes whether
registered or unregistered. For the purpose of this
Agreement, all of same in existence or in effect as of the
Effective Date of this Agreement are as listed in Schedule
"A" hereto;
(v) Processes - shall include any and all
technology conceived and/or developed by RSC and/or
Battista utilizing the Technical Information (as
hereinafter defined) and/or the Supercrete Technology for
the development, manufacture and production of all types of
Supercrete Products as hereinafter defined;
(vi) Supercrete Product - shall mean any
proprietary material produced by Polix, its affiliates,
subsidiaries or sub-licensees during the term of this
Agreement utilizing the Technical Information and/or
implementing the Processes as they relate specifically to
the Supercrete Technology;
(vii) Technical Information - shall include
any and all expertise, knowledge, research and development
information, specifications, technology and methods
conceived, developed and/or owned by RSC and/or Battista,
or in the possession of same, as the same relates to the
Supercrete Technology and its use and application in the
development and/or manufacture and production of Supercrete
Product and other products incorporating same, together
with any Patents related thereto.
1.6 This Agreement, the terms and provisions herein
contained and all of the rights and obligations herein created and
provided for shall be binding upon and enure to the benefit of each
of the Parties hereto together with their respective heirs,
executors, administrator, successors and assigns. Without
limiting the generality of the foregoing, such shall be inclusive of
any royalty and consulting fee payments to RSC and Battista, whether
or not Battista is able to perform personally.
1.7 Words incorporating the singular number only shall
include the plural, and vice verse, and words incorporating the use
of any gender shall include all genders.
ARTICLE II - EXCLUSIVITY
2.1 RSC and Battista by the execution of this Agreement
hereby warrant and represent that none of the rights hereby granted
and licensed to Polix are subject to any agreement or arrangement
whether written or unwritten, with any other party, or under any law,
which would in any manner limit, restrict or effect the rights and
entitlement hereby granted and licensed to Polix.
ARTICLE III - GRANT AND LICENSE
3.1 RSC and Battista warrant and represent that they have
jointly, or severally in their individual capacities, conceived and
developed the Technical Information and Processes, and that thee are
the sole and exclusive owners thereof.
3.2 Without limiting the generality of sub-paragraph 3.1,
RSC and Battista further warrant and represent that they have
developed or acquired, and own theories and processes for making
Supercrete Product, all of which shall be deemed to be and be
components or Supercrete Technology.
3.3 RSC and Battista jointly and severally grant to Polix,
the exclusive right and license to use the Technical Information
worldwide, and in so doing to utilize the Processes and manufacture
and produce the Supercrete Product without contest or interference
from any other party. Such grant shall be inclusive of any and all
Patents related thereto, which for the purpose of clarification shall
also include Trade Marks and Trade Names, whether registered or
unregistered.
3.4 Such right and license shall, subject to earlier
termination as hereinafter specifically provided for, be granted for
the life of any Patents plus 21 years, or for so long as a Supercrete
Product is sold by Polix, or any of its sub-licensees, anywhere in
the world whether or not covered by any Patent.
3.5 It is expressly understood and agreed that any Patents
issued to RSC and/or Battista, or which are the property of either of
them, and any laboratory or documented records, trade secretes and
legally witnessed notebook records or other information related to
the Supercrete Technology in existence prior to the Effective Date
shall be the exclusive property of Polix, provide however, that all
patents, records, trade secretes and other data not related to the
Supercrete Technology as above shall be and remain the exclusive
property of RSC and/or Battista.
3.6 Any and all new developments, innovations,
modification or improvements to the Technical Information as
conceived and/or implemented by either of RSC and/or Battista, or
Polix after the Effective Date, shall be and remain the property or
Polix, provided that in the event any application is made to patent
some or all of the same in any jurisdiction, Polix shall pay and
satisfy any cost related thereto.
3.7 RSC and Battista hereby undertake, covenant and agree
that upon the execution of this Agreement, they shall fully divulge
and deliver to Polix any and all Technical Information and Processes
related thereto, and further that in the event of any innovation,
modification or improvement to the Technical Information and/or
Processes, or any new development with respect thereto, they shall
forthwith disclose and provide full particulars thereof to Polix.
Provided that in the vent, Polix is determined to be in default under
this Agreement, then and in that event all of the same shall revert
to RSC and/or Battista.
3.8 Provided it complies with the provisions hereinafter
contained respecting confidentiality, and is not otherwise in default
under this Agreement, Polix shall be entitled and empowered to grant
sub-licenses of its rights under this Agreement to any other party or
parties ad the same relate to the Processes respecting the
manufacture and production of the Supercrete Product, and the
Supercrete Product. In such event, the sublicensee shall be provided
with a copy of this Agreement, and shall enter an Indenture in
writing with Polix whereby such sub-licensee shall undertake,
covenant and agree to be bound by all of the terms and provisions
herein contained as applicable thereto.
3.9 The Parties hereto undertake, covenant and agree to
cooperate each with the other in applying for and obtaining any
Patents as deemed necessary or advisable with respect to the
Technical Information and Processes, or any developments,
innovations, improvements or modifications thereto, both with the
United States of America or any other jurisdiction, provided that
Polix as the owner thereof, shall be responsible for all expenses in
filing and obtaining such Patents, and any maintenance cots with
respect to those which are or become its property.
3.10 Polix may institute and take action with respect to
the infringement of any Patents, which shall be inclusive of Trade
Marks and Trade Names, such to be at its cost and expense, provided
that as applicable, RSC and/or Battista will fully cooperate and
assist Polix with respect thereto.
ARTICLE IV - LICENSE FEE, ROYALTIES AND OTHER CONSIDERATION
4.1 Polix shall pay to RSC and Battista, or as so directed
by same, during the term of this Agreement, a royalty fee equal to 2%
of all of its Gross Sales, which shall be inclusive of those of Polix
as well as any and all of its sub-licensees.
4.2 Such royalty fee shall be payable quarter yearly,
within 30 days after the end of each quarter of each calendar year
during the term of this Agreement, the first of such payments to
commence on the first quarter yearly date following the date of this
Agreement.
4.3 Such royalty payments shall be made in U.S. dollars,
provided that if the Gross Sales are in other than U.S. currency, the
U.S. dollar equivalent shall be determined fro the exchange rate
prevailing as of the date of payment.
4.4 Polix shall be fully responsible, both for itself and
any and all sub-licensees, to assure complete and detailed records
are retained which reflect any and all sales of Supercrete Product,
and itemize all Gross Sales including any deductions therefrom. Such
records shall be available for inspection by RSC and/or Battista, or
their duly authorized agent at all reasonable times.
4.5 Polix shall provide and deliver to RSC and Battista
with each royalty payment, and in substantiation thereof, a detailed
summary of all Gross Sales of both itself and any and all sub-licensees.
4.6 Polix further undertakes, covenants and agrees that
immediately following the execution of this Agreement by all of the
Parties hereto, or as soon as the same are authorized for issuance,
whichever shall be the sooner, it shall cause to be issued and
delivered to Battista. It shall be caused to be issued and delivered
to Battista a certificate or certificates for 500,000 of the Common
Shares of the Public Corporation (as * the Public Corporation is
capitalized on August 31, 1994), intended to be acquired and/or
incorporated, and to which the North American rights and license of
Polix as herein provided for are to be licensed.
* To the extent Polix is able to arrange it, the said
500,000 Shares to be transferred to Battista shall be free trading
shares, provided in any case Battista shall not sell, without the
prior written consent of Polix, any of the said shares before January
2, 1995, and after this date not more than 1,000 shares per day or
more than 10,000 share in any one month.
ARTICLE V - CONSULTING ARRANGEMENT
5.1 RSC and Battista hereby undertake, covenant and agree
that they, or either of them as necessary, shall serve and act as
consultants to Polix and/or any of its sub-licensees if and as
reasonably required by same, in advising and/or assisting Polix, and
any sub-licensee with respect to any and all matters related to the
Technical Information and Processes necessary to manufacture and
produce the Supercrete Product. Without limiting the generality of
the foregoing, such shall include assistance in the establishment of
facilities for the manufacture and production of the Supercrete
Product, and the application and use of the Technical Information and
Processes with respect thereto.
5.2 RSC and Battista shall serve in such capacity as
consultants for a period of three (3) years from the date of this
Agreement. Provided that should Battista retain good health and
remain competent to act as a consultant, Polix may at its sole and
exclusive option renew such consulting services on a year by year
basis at the same remuneration as provided for in sub-paragraph 5.3.
5.3 In consideration for their services as consultants,
RSC and Battista, or as they may in writing direct, shall be paid the
sum of $5,000 U.S. per month, commencing on the last day of the month
immediately following the month of the Effective Date.
5.4 Provided Polix may cancel the consulting arrangement
if RSC and Battista at any time on six (6) months written notice
delivered to RSC and Battista together with payment of an amount
equal to the consulting fee for the said six (6) month period payable
in advance.
5.5 Provided Polix approves of same prior to being
incurred, it shall reimburse RSC and/or Battista for any reasonable
travel or out-of-pocket expenses related to the performance of such
consulting services.
5.6 In the event Polix requests RSC and/or Battista to
undertake specific research and development programs which include
laboratory time, it shall pay to same the sum of $1,500 U.S. per day
for each fully day of such laboratory time, which amount shall be
inclusive of the sue of the laboratory and all personnel involved in
such research and development thereat. In such event, Polix shall
provide, and satisfy, the direct cost of any chemicals or special
equipment necessary for such purpose.
5.7 On the basis the consulting services are dependent on
the personal competence, availability and involvement of Battista, in
the event of his death, or that he should become physically or
mentally incapacitated whereby he is unable to perform such service,
then any obligation by Polix for payment of the consulting fee as
provided for in sub-paragraph 5.3 shall cease on the last day of the
month immediately following the month of his death or that in which
he becomes incapacitated.
ARTICLE VI - CONFIDENTIALITY
6.1 It is expressly understood and agreed by each of the
Parties hereto that all of the Technical Information and Processes,
as well as, their use and application, saving such as may be in the
public domain, is of a highly proprietary and confidential nature,
and that disclosure to any other party could cause, or result in,
considerable damage and loss.
6.2 Each of the Parties hereto undertakes, covenants and
agrees to retain any and all of the Technical Information and
Processes, as well as, information relating to their use and
application, in the strictest confidence, and saving as necessary to
manufacture, product, market or sell the Supercrete Product, or apply
for and obtain patents or governmental approvals, not to disclose or
divulge to any other party, any information with respect thereto.
6.3 In the event Polix should grant any sub-licenses of
its rights and entitlement hereunder to any third party, it shall not
provide any particulars or information respecting the Technical
Information, saving that as necessary to apply the Processes in the
manufacture and production of the Supercrete Product.
6.4 Each of the Parties hereto shall take all reasonable
steps and effect all necessary procedures to minimize the disclosure
of the Technical Information and Processes, and in so doing shall
ensure that any and all of their employees, or any other parties
involved in the utilization thereof, enter confidentiality agreements
with respect thereto.
6.5 Any and all documentation or other material related to
or incorporating the Technical Information and Processes shall at all
times be held and retained by each of the Parties hereto in a secure
place of safekeeping.
6.6 Any and all information respecting the business
operation Polix, or any of it sub-licensees, which shall come to the
knowledge of RSC and/or Battista, shall be treated as strictly
confidential, and not be divulged or revealed by either of same to
any other party.
ARTICLE VII - VESTING
7.1 In the event of default of any payment by Polix as
herein provided for RSC and/or Battista may forthwith provide Polix
with notice thereof in writing. Provided that if Polix does not
satisfy any payment within 60 days after the date of receipt of any
such notice, then and in that event this Agreement and the right and
entitlement hereby granted and licensed shall be deemed to be
terminated, in which event Polix shall forthwith return and deliver
to RSC and/or Battista any and all of the Technical Information which
shall revert to and vest in same.
7.2 In the event of the death of Battista during the term
of this Agreement, then and in that event, the Technical Information
saving and excepting articles and memorabilia which are indisputably
personal effects of Battista, shall become the property of and vest
in Polix, such being expressly subject to its continuing to preform
under the terms of this Agreement, in particular with respect to the
accountability for and payment of the royalty fee as provided for in
sub-paragraphs 4.2 and 4.5 herein.
ARTICLE VIII - NOTICE
8.1 Any notice required or permitted under the terms of
this Agreement, shall be deemed to have been effectively given by
either fax transmission or forwarding the same by pre-paid courier,
in the case of RSC and Battista c/o Dr. O.A. Battista, Research
Services Corporation, 3863 S.W. Loop 820, Suite 100, Fort Worth,
Texas 76133-2063 - FAX (817) 924-2893 - Telephone (817) 292-4272; and
in the case of Polix to its Canadian Counsel, Rayner, White, Mills,
Grant (Attention: G. Colin Rayner) Suite 210 - 3600 Billings Court,
Burlington, Ontario L7N 3N6 - FAX (905) 632-4520 - Telephone (905)
632-8123; or such other address and/or fax number as either of the
Parties may be notice in writing to the other so designate.
8.2 Such notice shall be effective as of the time and date
of delivery on a Party.
ARTICLE IX - ARBITRATION
9.1 In the event of any question, disagreement or dispute
between RSC and/or Battista on the one part and Polix on the other
part, either related to the interpretation of this Agreement, any
matter as referred to herein or their relationship with each other,
which cannot be mutually resolved as between them, then and in that
event the matter shall be resolved by arbitration proceedings.
9.2 Such arbitration proceedings shall be conducted at a
location as close in proximity as possible to a point equal distance
between the Province of Ontario, Dominion of Canada and the State of
Texas, United States of America.
9.3 It is expressly understood and agreed that any matter
requiring legal interpretation shall be interpreted in accordance
with the Laws of the State of Texas, United States of America, and
nay matter which relates to a factual situation shall be based on
those facts which are deemed to be and are of relevance.
9.4 Each of RSC and/or Battista as one Party, and Polix as
the other Party, shall select one party to represent it or him
as arbitrator, each of the parties so selected as arbitrator to
select as between them one other party independent therefrom, the
three parties so selected to be arbitrator or who shall be apprised
of all facts and matters in issue as between the Parties hereto. The
disagreement shall be resolved by a majority decision of the three
arbitrators, which decision shall be final and binding on the Parties
hereto. Provided that should either of the said Parties be unwilling
or unable to select one party to represent it or him, or should the
two parties selected by the said Parties be unable to mutually select
one more, or should the three parties so selected be unable to reach
a decision, then the matter shall be resolved pursuant to the
provisions of the Uniform Commercial Code of the United States of
America.
IN WITNESS WHEREOF the Research Services Corporation has
executed this Agreement as evidenced by the signatures of the duly
authorized signing Officers who have authority to bind the
Corporation.
RESEARCH SERVICES CORPORATION
BY: /s/ O.A. Battista, Chairman and President
IN WITNESS WHEREOF Suncastle Investments Limited has
entered this agreement through its Directors duly authorized in that
regard.
SUNCASTLE INVESTMENTS LIMITED
BY: IMM MANAGEMENT LTD. DIRECTOR
Per:
BY: AINCORP LTD. DIRECTOR
Per:
IN WITNESS WHEREOF Orlando A. Battista has set his hand and
seal.
SIGNED, SEALED AND DELIVERED )
in the presence of: )
) /s/ ORLANDO A. BATTISTA
Mary Kricfalusi
Dates Referenced Herein and Documents Incorporated by Reference
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