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HomeMy WebLinkAbout14-6621Supreme Cott( s Cour -I °:ennsylvania I leas County For Prothonotary Use Only: Docket No: /0602.( The information collected on this form is used solely for court administration purposes. This form does not supplement or replace the filing and service of pleadings or other papers as required by law or rules of court. S E C ,I, I 0 N A Commencement of Action: Petition Declaration of Taking 51 Complaint 11 Writ of Summons 0 Transfer from Another Jurisdiction t Lead Plaintiff's Name: Advanced Concrete Systems, Inc. Lead Defendant's Name: Weaver Precast, Inc. Dollar Amount Requested: (check one) II within arbitration limits Are money damages requested? » Yes 0 No outside arbitration limits Is this an MDJ Appeal? Is this a Class Action Suit? l Yes I No 0 Yes 12 No Name of Plaintiff/Appellant's Attorney: Daniel L. Sullivan, Esquire 0 Check here if you have no attorney (are a Self -Represented [Pro Se] Litigant) S E C T I 0 N B Nature of the Case: Place an "X" to the left of the ONE case category that most accurately describes your PRIMARY CASE. If you are making more than one type of claim, check the one that you consider most important. TORT (do not include Mass Tort) O Intentional O Malicious Prosecution • Motor Vehicle 0 Nuisance O Premises Liability 0 Product Liability (does not include mass tort) O Slander/Libel/ Defamation O Other: MASS TORT O Asbestos ® Tobacco O Toxic Tort - DES O Toxic Tort - Implant O Toxic Waste ® Other: PROFESSIONAL LIABLITY O Dental O Legal O Medical O Other Professional: CONTRACT (do not include Judgments) O Buyer Plaintiff O Debt Collection: Credit Card O Debt Collection: Other O Employment Dispute: Discrimination O Employment Dispute: Other O Other: REAL PROPERTY O Ejectment O Eminent Domain/Condemnation O Ground Rent © Landlord/Tenant Dispute 0 Mortgage Foreclosure: Residential 0 Mortgage Foreclosure: Commercial 0 Partition O Quiet Title O Other: CIVIL APPEALS Administrative Agencies O Board of Assessment O Board of Elections Dept. of Transportation Statutory Appeal: Other O Zoning Board O Other: MISCELLANEOUS ® Common Law/Statutory Arbitration Declaratory Judgment DI Mandamus Non -Domestic Relations Restraining Order 0 Quo Warranto Replevin ® Other: Updated 1/1/2011 ADVANCED CONCRETE SYSTEMS, INC., a Pennsylvania corporation, Plaintiff, v. WEAVER PRECAST, INC., a Pennsylvania corporation and SUPERIOR WALLS OF AMERICA, LTD., a Pennsylvania corporation, Defendants. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Case No. C) CIVIL ACTION NOTICE m r c -a 7: CA, • N) 1,40 You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 or 800-990-9108 4-Y/54 ciek 36,p< AO 313` 1 ADVANCED CONCRETE SYSTEMS, INC., a Pennsylvania corporation, Plaintiff, v. WEAVER PRECAST, INC., a Pennsylvania corporation and SUPERIOR WALLS OF AMERICA, LTD., a Pennsylvania corporation, Defendants. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Case No. pi-- -- (_1 CIVIL ACTION ACTION FOR DECLARATORY JUDGMENT, INJUNCTIVE RELIEF AND DAMAGES Plaintiff, ADVANCED CONCRETE SYSTEMS, INC., for its verified complaint against Defendants WEAVER PRECAST, INC. and SUPERIOR WALLS OF AMERICA, LTD. (named only as a necessary party), states as follows: Nature of The Case' A. This action for declaratory and injunctive relief, and damages, arises from an agreement entered into by two licensees (Plaintiff Advanced Concrete Systems, Inc. ("ACS") and Defendant Weaver Precast, Inc. ("WP")) and their licensor (Superior Walls of America, Ltd. ("SWA")), which approved the agreement reached by ACS and WP, and is a signatory to that agreement. B. As more fully described below, a key feature of the SWA "licensing" program is that each licensee receives an exclusive protected territory (its "Area of Primary Responsibility" or "APR" as defined in each respective license agreement) in which it has the exclusive right to sell the approved menu of Superior Walls 1 These paragraphs provide background for the Court and are not incorporated into the Complaint. 1 Products (pre -fabricated foundation walls used in primarily residential construction). C. ACS and WP are neighboring licensees, as their respective APR's border each other. Both ACS and WP developed customer relationships with builders that did business in each other's APR, creating the mutual desire by ACS and WP to "follow a customer" across the border. To achieve this purpose, on June 24, 2011, ACS and WP entered into the "Cross APR Sales Agreement" in which they agreed to allow each other, under strictly defined terms, to make limited sales of "Superior Walls Products" in each other's exclusive protected territories as established by the respective license agreements that ACS and WP entered into with. SWA, and for ACS and WP to provide limited compensation to each other when a permitted "cross APR sale" is made. SWA approved this agreement between two of its licensees, and is a party to this agreement; therefore SWA is named as a necessary party to this case. D. In February 2014, an important development occurred that defeats the purpose of the Cross APR Sales Agreement and gives rise to this case. Defendant WP, through no fault of ACS, fell out of compliance with the Licensor under the license agreement between WP and SWA, and as a consequence SWA declared and informed the entire Superior Walls license system that, inter alia, WP's formerly exclusive protected territory is now an open territory in which any other licensee of SWA — including ACS — is free to sell Superior Walls Products without being subject to any restrictions or limitations. As a result, WP no longer has an exclusive 2 protected territory and so ACS can no longer receive the defined benefit (limited access to WP's exclusive protected territory) that it bargained for in the Cross APR Sales Agreement. And, not only is ACS deprived of the benefit that it bargained for in entering into the Cross APR Sales Agreement, ACS finds itself being penalized by the continued existence of this agreement, because under the terms of the Cross APR Sales Agreement, ACS would be the only SWA licensee that would only have limited access to a formerly exclusive protected territory that is now open to all SWA licensees, and ACS (alone among all other SWA licensees) would still be required to pay WP its defined compensation for a cross APR sale, even though the WP territory is now open to all licensees and no compensation is due WP under its license agreement because WP has lost its claim to exclusive territorial protection. E. Because ACS is now deprived of all benefits that were intended by the Cross APR Sales Agreement and is penalized by the continued existence of that agreement, and in Count I, ACS seeks declaratory judgment that the Cross APR Sales Agreement is unenforceable by WP retroactive to February 21, 2014, which is the date that SWA informed all of its licensees that Defendant WP's formerly exclusive protected territory is now open to all SWA licensees. The specific request for declaratory relief is set forth below in paragraphs 32-33. F. In addition, in Count II, ACS requests a permanent injunction to enjoin Defendant WP in accordance with the declaratory judgment; and in Count III, ACS requests an award of damages for breach of contract that will be proven at trial. ACS also seeks to recover its reasonable attorneys' fees and costs. 3 Plaintiff 1. Plaintiff, ADVANCED CONCRETE SYSTEMS, INC. ("ACS"), is a Pennsylvania corporation with its principal place of business at 55 Advanced Lane, Middleburg, Pennsylvania 17842. Defendants 2. Defendant WEAVER PRECAST, INC. ("WP") is a Pennsylvania corporation with its principal place of business at 824 East Main Street, Ephrata, Pennsylvania 17522. 3. Nominal Defendant SUPERIOR WALLS OF AMERICA, LTD. ("SWA") is a Pennsylvania corporation with its principal place of business at 937 East Earl Road, New Holland, Pennsylvania 17557. Plaintiff ACS joins SWA in its capacity as a signatory to the Cross APR Sales Agreement as a necessary party in connection with the Cross APR Sales Agreement. No relief is sought against SWA, other than requiring SWA to abide by the relief that ACS seeks against WP. Jurisdiction 4. This Court has jurisdiction of the subject matter and the parties hereto under 42 Pa.C.S.A. § 931(a). Venue 5. Based on where the cause of action arose, and/or where a transaction or occurrence took place out of which the cause of action arose, venue is proper in Cumberland County under Rule 2179(a)(3) and (a)(4) of the Pennsylvania Rules of Civil Procedure. 4 Background Facts The Respective License Agreements of ACS and WP with SWA 6. Plaintiff ACS entered into a Superior Walls License Agreement (hereinafter the "License Agreement") with SWA on November 19, 2008, a copy of which is attached hereto as Exhibit 1 (as it existed in 2008 when it was signed). Plaintiff ACS is the Licensee. SWA is the Licensor. Plaintiff ACS entered into the License Agreement with SWA for the purpose of operating a licensed business to manufacture, sell, transport and install Superior Walls Products in a designated, protected geographic area, referred to as the "Area of Primary Responsibility" or "APR". 7. Defendant WP is also a licensee of SWA. WP operates under a license agreement with SWA dated May 19, 2009. On information and belief, WP's license agreement with SWA is substantially identical to Plaintiff ACS's License Agreement.2 Defendant WP's APR, which its license agreement establishes, is contiguous to Plaintiff ACS's APR. 8. Section 5.16 of the ACS/SWA License Agreement provides: Licensor has the express duty to protect Licensee's rights to be the exclusive provider of Superior Walls Products within its APR. This duty includes the duty (to this Licensee) to take reasonable steps to enforce (at its own expense) the provisions of its franchise or license agreements with other franchisees or licensees which restrict the ability of those franchisees or licensees from making any sales or soliciting business in the APR of Licensee without the express written approval of Licensee (which Licensee may withhold in its discretion). This duty shall not include filing a legal action against any franchisee or licensee. Licensor acknowledges that Licensee is a third -party 2 ACS does not have a copy of WP's license agreement with SWA. 5 beneficiary of all provisions that parallel Section 1.3.2 of this Agreement in Licensor's other franchise or license agreements. Licensee acknowledges that other Superior Walls franchisees and licensees that have provisions in their agreements with Licensor paralleling this Section and Section 1.3.2 of this Agreement are third - party beneficiaries of Section 1.3.2 of this Agreement. Ex. 1 at Section 5.16, p. 10. 9. Section 1.3.2 of the ACS/SWA License Agreement provides: Licensor shall not, and shall not authorize any other Superior Walls licensee or franchisee (whether or not such Superior Walls licensee or franchisee is subject to comparable restrictions to those contained in Section 7.12.2 hereof), to sell or install Superior Walls Products under the System within Licensee's Area of Primary Responsibility; provided, however, that other licensees or franchisees of Licensor, and Licensor, shall have the right to sell or install Superior Walls Products under the System within Licensee's Area of Primary Responsibility to those persons or entities named on Exhibit B, attached hereto. Licensee acknowledges that Licensor cannot guarantee that persons, without authority from Licensor to do so, will not sell or install Superior Walls Products in areas of primary responsibility. Licensor shall use its best efforts to require all existing and future franchisees or licensees to enter into the restrictions contained in section 7.12 hereof. Id. at Section 1.3.2, pp. 2-3. 10. Section 7.12.2 of the ACS/SWA License Agreement provides: Licensee shall have the right to directly solicit clients or customers for the sale or installation of, or sell or install, Superior Walls Products outside its Area of Primary Responsibility only if any direct solicitations for such sales or such installations are made within an area not currently assigned as an area of primary responsibility to another franchisee or licensee under the Superior Walls System (except for sales or installations to persons or entities identified on Exhibit B) and not a market area in which Licensor has advised Licensee in writing that Licensor, any affiliate of Licensor, or any other third -party with which Licensor has contracted for the sale of Superior Walls Products in selling Superior Walls Products under the System. Id. at Section 7.12.2, pp. 15-16. 6 11. On information and belief, the cited provisions of the ACS/SWA license agreement are identical to the same sections in the WP/SWA license agreement. The Cross APR Sales Agreement 12. Plaintiff ACS entered into the Cross APR Sales Agreement with Defendants WP and SWA on June 24, 2011, a redacted copy of which is attached hereto as Exhibit 2.3 13. The mutual, expressly stated purpose for the Cross APR Sales Agreement was to allow each of ACS and WP to sell to certain expressly identified customers that do business in the other's exclusively protected APR, as created by and defined in their respective license agreements with SWA. The recitals to the Cross APR Sales Agreement establish this purpose: WHEREAS, each of the ACS License Agreement and the WP License Agreement license to ACS and WP the right to operate a Licensed Business (as defined in each of the ACS License Agreement and the WP License Agreement) to manufacture, sell, and install Superior Walls Products for use in residential, as well as non-residential construction projects, on an exclusive basis in a defined geographic area referred to in each of the ACS License Agreement and the WP License Agreement as the Area of Primary Responsibility or APR (the "APR"); *** WHEREAS, each of the ACS License Agreement and the WP License Agreement contain an Exhibit B, which lists "Territory Exceptions" that permit ACS and WP to sell Superior Walls Products to the customers listed on Exhibit B, regardless of whether or not they are within each of the Parties' respective APR's (as defined in each of ACS' and WP's respective License Agreements); 3 In order to respect the confidentiality provision of the Cross APR Sales Agreement (Section 4.1), Plaintiff redacted the relevant provisions of the Cross APR Sales Agreement subject to the confidentiality provision, specifically, Sections 2.5, 2.6, 2.7 and 2.8. Plaintiff will submit to the Court a full and complete version of the Cross APR Sales Agreement at the appropriate time and manner. 7 *** WHEREAS, ACS and WP each desire to have the ability to sell Superior Walls Products to certain customers (with whom they respectively enjoy established business relationships) outside of their respective APR and within the other Party's APR; with the further understanding and agreement between ACS and WP that the provisions of this Cross APR Sales Agreement are to be construed narrowly to achieve the specific sales that are expressly contemplated herein, and shall not be construed expansively in any manner that would permit either ACS or WP to expand their sales opportunities or actual sales in the other Party's APR beyond what is expressly permitted in this Cross APR Sales Agreement. WHEREAS, ACS and WP desire that Exhibit B be eliminated from the ACS License Agreement and the WP License Agreement; WHEREAS, SWA is willing to amend the ACS License Agreement and the WP License Agreement to incorporate the provisions of this Cross APR Sales Agreement into each of the ACS License Agreement and the WP License Agreement.. Ex. Ex. 2 at pp. 1-2. 14. The Cross APR Sales Agreement resulted in amendments to both the ACS License Agreement and WP License Agreement, copies of which are attached as Exhibit A respectively to the Cross APR Sales Agreement, Ex. 2 hereto. These mutual amendments eliminated Exhibit B to both the ACS and WP License Agreements with SWA, in their entirety. In entering into the Cross APR Sales Agreement, both ACS and WP acknowledged that Exhibit B shall "no longer be in force or effect," and also acknowledged the inclusion of the Cross APR Sales Agreement in each of ACS and WP's respective License Agreements with SWA. (See Ex. 2 at Sections 1.1 and L2.; see also paragraphs 1 through 4 of the mutual 8 amendments to the Cross APR Sales Agreement attached as Exhibit A to Ex. 2 hereto.) 15. In addition, in Section 1.3 of the Cross APR Sales Agreement, ACS and WP expressly agreed that: ACS [shall be] a direct and intended third -party beneficiary of the territorial limitation provisions of WP's amended license agreement with SWA, and that WP [shall be] a direct and intended third -party beneficiary of the territorial limitation provisions of ACS's amended license agreement with SWA. Ex. 2 at Section 1.3, pp. 3-4. 16. To implement the mutual "direct and intended third -party beneficiary" status that was agreed upon in Section 1.3 of the Cross APR Sales Agreement (inter alia) each of ACS and WP entered into paragraph 5 of the mutual amendments to their respective license agreements with SWA. In addition, in Section 7.3 of the Cross APR Sales Agreement, both ACS and WP (and SWA) agreed that the implied covenant of good faith and fair dealing applies to that agreement. (Ex. 2 at Section 7.3, p. 15). Both ACS and WP (and SWA) had also agreed in their respective license agreements that the implied covenant of good faith and fair dealing was applicable to those contracts. (Ex. 1 at Sections 5.15 and 7.1.1, pp. 10-11). 17. In sum, in entering into the Cross APR Sales Agreement both ACS and WP bargained to achieve specific, defined benefits, namely, access under defined terms to each other's exclusive protected territory. In order to achieve ACS's and WP's mutual purposes, both ACS and WP were required to adhere to SWA's standards in their respective license agreements so as to maintain their respective 9 exclusive protected APR and both ACS and WP became "direct, intended third -party beneficiaries" of the other's exclusive APR. The existence of the exclusive protected territory of each of ACS and WP, at the time that the Cross APR Sales Agreement was signed and continuing for the duration of the agreement, was an essential element of the Cross APR Sales Agreement. Mutual access to each other's exclusive protected territory on the terms stated in the Cross APR Sales Agreement was the consideration for this agreement. Each of the parties had the reasonable expectation that they would continue to enjoy this access for the duration of the Cross APR Sales Agreement. The Licensor's Opening of WP's territory to all SWA Licensees 18. On February 21, 2014, SWA issued a License System Communication to Licensee Owners, Presidents & General Managers regarding "General License System Update," a copy of which is attached hereto as Exhibit 3. One item in the February 21, 2014 License System Communication, entitled "Clarification of APR Changes," provides, in pertinent part, as follows: Within the context of our [SWA] system's APR rules the following counties are now considered OPEN and any Licensee is welcome to sell and install product in them: *** Pennsylvania — Berks, Bucks, Chester, Delaware, Lancaster, Lebanon, Montgomery, Philadelphia, York. Maryland — Anne Arundel, Baltimore, Carroll, Cecil, Harford, Howard. *** 10 Ex. 3 at p. 2, emphasis in original. 19. All of the Pennsylvania and Maryland counties set forth above in SWA's License System Communication were part of the exclusive protected APR of WP prior to said Communication. 20. As the direct and intended result of SWA's February 21, 2014 License System Communication, any Licensee (including but not limited to ACS) has the authority expressly granted by SWA to sell and install into WP's APR without any limitations -or restrictions thereto, i.e., without having to pay WP to sell and install in its APR. As such, the fundamental purpose of the Cross APR Sales Agreement has been frustrated. 21. SWA's February 21, 2014 License System Communication nullifies the exclusive territorial protections of WP's license agreement, which formed the basis for the Cross APR Sales Agreement and formed the basis for the parties' reasonable expectations thereunder. 22. The "opening" by SWA of WP's exclusive protected territory caused WP to lose the contractual protection in its license agreement (its exclusive protected territory), thereby destroying the fundamental purpose of the Cross APR Sales Agreement, namely, the enjoyment by ACS, to the exclusion of all other SWA licensees, of access on defined terms to the exclusive protected APR of WP. 23. Furthermore, the "opening" by SWA of WP's exclusive protected territory caused WP to lose the contractual protection in its license agreement (its exclusive protected territory), defeated AC S's reasonable expectations and deprived 11 ACS of the benefit it had bargained for in being the direct, intended third -party beneficiary of the exclusive protected APR of WP. 24. In contrast to Defendant WP, Plaintiff ACS has maintained and continues to maintain an exclusive protected APR pursuant to its License Agreement with SWA. 25. Section 5.1 of the Cross APR Sales Agreement provides: In the event that a Party breaches a promise made in or obligation created by this Cross APR Sales Agreement and that Party shall prevail against the other Party in a court proceeding, the prevailing party shall also be awarded its reasonable attorneys' fees and costs. Ex. 2 at Section 5.1, p. 12. 26. As a result of WP's breaches of contract as more fully alleged herein, ACS should be awarded its attorneys' fees and costs pursuant to Section 5.1 of the Cross APR Sales Agreement. COUNT I - DECLARATORY JUDGMENT REGARDING THE CROSS APR SALES AGREEMENT 27. Plaintiff repeats and re -alleges paragraphs 1 through 26 of this Complaint as though fully set forth herein. 28. Based on the foregoing, Plaintiff ACS has notified Defendant WP that WP is in material breach of the Cross APR Sales Agreement, and that, as a result, WP may no longer exercise any of its rights under the Cross APR Sales Agreement. 29. Defendant WP has denied the allegations of breach and insists that it is still entitled to enjoy the benefits that it received under the Cross APR Sales 12 Agreement even though it no longer has the exclusive APR that existed when that agreement was signed. 30. By reason of the foregoing, an actual controversy exists between the parties. 31. ACS has no adequate remedy at law. 32. To resolve the actual controversy that exists between ACS and WP, Plaintiff ACS seeks a judicial declaration that WP's conduct in permitting or causing SWA to issue the February 21, 2014 License System Communication: a. Constitutes a breach by WP of its amended license agreement and the Cross APR Sales Agreement (including but not limited to a breach of the duty of good faith and fair dealing under each agreement) because ACS is now deprived (through no fault of its own) of the benefit of its bargain with WP in being the direct, intended third -party beneficiary of WP's exclusive APR (which no longer exists on the bargained -for exclusive basis); b. Constitutes a "frustration of purpose" of the Cross APR Sales Agreement; c. Constitutes a failure of consideration by WP under the Cross APR Sales Agreement; and d. Establishes "unjust enrichment" in favor of WP in that WP would continue to enjoy the benefits of its bargain with ACS under the Cross APR Sales Agreement while ACS is not only deprived of its bargained - 13 for benefits, but would actually be penalized in comparison to all other SWA licensees if WP were to be allowed to continue to enforce the Cross APR Sales Agreement as against ACS. 33. For all of the reasons alleged in paragraph 32, Plaintiff ACS seeks a judicial declaration that WP's conduct in permitting or causing SWA to issue the February 21, 2014 License System Communication renders the Cross APR Sales Agreement unenforceable by WP retroactive to February 21, 2014, such that: a. The Cross APR Sales Agreement is unenforceable by Defendant WP retroactive to February 21, 2014, the date of SWA's License System Communication opening Defendant WP's exclusive protected territory; but that, in all other respects (including the mutual termination of exhibit B to the respective license agreements of ACS and WP) the Cross APR Sales Agreement remains undisturbed; b. Plaintiff ACS is free to sell and install Superior Walls Products into WP's APR without any limitations or restrictions thereto, i.e., without having to pay WP to sell and install Superior Walls Products in its APR and without being limited to any defined customers; c. Defendant WP is not entitled to claim any compensation from ACS that would have been due under the Cross APR Sales Agreement; d. Plaintiff ACS does not owe any compensation to Defendant WP for selling and installing Superior Walls Products in its APR and there will be no offsets to the sales made by ACS in WP's APR; 14 e. Defendant WP is no longer entitled to claim any benefits under the Cross APR Sales Agreement, meaning that WP is prohibited from selling and installing Superior Walls Products into ACS's APR or any other sales activity in the APR of ACS and must cease and desist from any other sales activity of Superior Walls Products in the APR of ACS; f That WP is in breach of the territorial restrictions set forth in its license agreement with SWA, of which ACS is an express third -party beneficiary, as stated in and established by the amendments to the license agreements that were part of the Cross APR Sales Agreement; g. Every sale of Superior Walls Products by WP into ACS's APR after February 21, 2014 has been an infringing sale, in breach of WP's license agreement with SWA; h. As a result of WP's breaches, ACS is the prevailing party pursuant to Section 5.1 of the Cross APR Sales Agreement; and i. Such other declarations and orders that may be appropriate in the premises, including an award to ACS of its attorneys' fees and costs of suit. COUNT Il—INJUNCTIVE RELIEF (Against Defendant WP) 34. Plaintiff ACS incorporates Paragraphs 1 through 33 above as though fully set forth herein. 35. Plaintiff ACS's right to relief, as set forth above in Count I, is clear. The issuance of a permanent injunction against Defendant WP to abide by the 15 declaratory judgment order is necessary to prevent a legal wrong for which there is no adequate remedy at law, including but not limited to permitting Defendant WP from continuing to benefit at the expense of Plaintiff ACS as a result of SWA's opening, inter alia, all of WP's previously exclusive protected territory to all SWA Licensees without restrictions or limitations. 36. A greater injury will result from refusing rather than granting the relief requested by Plaintiff ACS in that ACS will be further harmed if it has more restrictions and limitations for selling into WP's APR than any other SWA Licensee after SWA announced to all its Licensees on February 21, 2014 that WP's territory was open to any Licensee, i.e., only ACS would have to pay WP for sales and installs of Superior Walls Products into WP's territory, and that WP would retain a further benefit to continue to sell into. ACS's exclusive protected APR despite the loss of WP's exclusivity, which was a fundamental element of the Cross APR Sales Agreement. 37. The entry of injunctive relief will also avoid multiplicity of lawsuits because every infringing sale by WP into ACS's exclusive protected APR would be another lawsuit. 38. In order to adequately protect the rights of Plaintiff ACS, the Court should enter a permanent injunction directing Defendant WP to abide by the requested declaratory judgment. 16 COUNT III — DAMAGES FOR BREACH OF CONTRACT (Against Defendant WP) 39. Plaintiff ACS incorporates Paragraphs 1 through 38 above as though fully set forth herein. 40. For all of the reasons alleged above, ACS has been damaged since February 21, 2014, by WP's continued sales into the exclusive APR of ACS, on an apparent assumption by WP that it is entitled to enjoy the benefits of the Cross APR Sales Agreement. 41. The amounts of damages sustained by ACS will be proven at trial after discovery is conducted. PRAYER FOR RELIEF WHEREFORE, Plaintiff ACS requests that the Court: A. Enter declaratory judgment in its favor and against Defendant WP as stated in Count I; B. Enter a permanent injunction against Defendant WP as stated in Count II; C. Award damages to Plaintiff ACS and against Defendant WP in such amounts as may be proven at trial as stated in Count III; D. Award to ACS its attorneys' fees and costs of suit; and E. Award such other relief as the Court may deem right and just. 17 , 2014 LOCAL COUNSEL: Daniel L. Sullivan, Esq. PA ID No.: 34548 Saidis, Sullivan & Rogers 26 W. High Street Carlisle, PA 17013 Firm: (717) 243-6222 Fax: (717) 243-6486 Email: dsullivan@ssr-attorneys.com Respectfully submitted, PLAINTIFF, ADVANCED CONCRETE SYSTEMS, INC., a Penns lvania corporation By: 18 One of Its Attorneys OF COUNSEL: Carmen D. Caruso #6189462 CARUSO & ROEDER LLC 77 West Washington St., Suite 1900 Chicago, Illinois 60602 Firm: (312) 626-1160 E -Fax: (312) 873-4348 Email: cdc@carusoroederlaw.com ADVANCED CONCRETE SYSTEMS, INC., a Pennsylvania corporation, Plaintiff, V. WEAVER PRECAST, INC., a Pennsylvania corporation and SUPERIOR WALLS OF AMERICA, LTD., a Pennsylvania corporation, Defendants. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Case No. 111- ii601( CIVIL ACTION VERIFICATION I, Michael P. Daven, verify that the statements made herein are true and correct to the best of my information, knowledge and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsifications to authorities. November i° 2014 Michael P. Daven, President, Advanced Concrete Systems, Inc. 19 SUPERIOR WALLS LICENSE AGREEMENT ADVANCED CONCRETE SYSTEMS, INC, EAS1142038 I 13.11 Exhibit 1 TABLE OF CONTENTS Page 1. GRANT 2 2. TERM AND RENEWAL 3 3. FEES 4 4. REPORTS AND RECORDS 6 5. DUTIES OF LICENSOR 7 6. TRAINING 11 7. DUTIES OF LICENSEE 11 8. CONFIDENTIAL OPERATING MANUALS 19 9. CONFIDENTIAL INFORMATION & PATENTS 20 10. INSURANCE 21 11. PROPR 11-.TARY MARKS 23 12. TRANSFER OF INTEREST 25 13. DEFAULT AND TERMINATION 27 14. OBLIGATIONS UPON TERMINATION 29 15. COVENANTS NOT TO COMPETE 31 16. (INTENTIONALLY DELETED) 33 17, RELATIONSHIP OF THE PARTIES AND INDEMNIFICATION ......... ......... ............. 33 18. SEVERABILITY AND CONSTRUCTION 36 19. TAXES, PERMITS, AND INDEBTEDNESS 36 20. APPLICABLE LAW; DISPUTE RESOLUTION 36 21. NOTICES 37 22. MISCELLANEOUS 37 23. ACKNOWLEDGMENTS; RETAINED RIGHTS 38 EXHIBITS Exhibit A — Area of Primary Responsibility Exhibit B — Territory Exceptions Exhibit C — Mutual General Release Exhibit D — EFT Authorization Exhibit E — List of Superior Walls Forms and Components Exhibit F — List of Materials and Supplies Exhibit G — Subcontractor (Seller/Installer) Sales, Transportation and Installation Consent Agreement Exhibit H — Subcontractor (Builder is Installer) Installation Consent Agreement Exhibit I — Subcontractor (Independent Installer) Installation Consent Agreement Exhibit J — Performance Standards Exhibit K — Software License Agreement Exhibit L — Project Research, Development and Testing Agreement Exhibit M — List of Franchisee Owners Exhibit N — Patent and Copyright Assignment and Non -Disclosure Agreement EAST\42038113.11 SUPERIOR WALLS LICENSE AGREEMENT THIS LICENSE AGREEMENT ("Agreement") is made by and between SUPERIOR WALLS OF AMERICA, LTD., a Pennsylvania corporation ("Licensor" or "Superior Walls"), and ADVANCED CONCRETE SYSTbMS, INC. with its principal place of business at , 55 Advanced Lane, Middleburg, PA 17842 ("Licensee"), and is effective as of Licensor's execution of the Agreement. RECITALS WHEREAS, Licensor has developed and continues to develop a system relating to manufacturing, selling, transporting and installing Superior Walls Products (as defined below) (the "System"); WHEREAS, the distinguishing characteristics of the System include the right to use certain knowledge, patents, and trade secrets; uniform standards, specifications, requirements, duties, procedures, policies, systems, techniques, and guidelines for the manufacture, transportation and installation of precast insulated concrete, below -grade and above -grade walls manufactured and produced with proprietary Superior Walls Forms and Form Components (as defined herein) and sold under the Proprietary Marks (as defined herein), and foundation -related products sold under the Proprietary Marks ("Superior Walls Products", which term shall also include the manufacturing, selling, transporting and installing of Superior Walls Products); quality assurance programs; Production Manuals; Technical Guide; advertising materials; Installation Manual; SUPERWALLSTM Software Manual; and any supplemental bulletins and notices, revisions, modifications, or amendments thereto (collectively, the "Manuals") and other writings. The System, Superior Walls Products and the Manuals may be added to, deleted, changed, improved, and further developed by Licensor from time to time; WHEREAS, the System is identified by means of certain trade names, service marks, trademarks, logos, emblems, and indicia of origin, including the marks "Superior Walls Logo" and "SUPERIOR WALLS," all as are now designated and may hereafter be designated by Licensor in writing for use in connection with the System (the "Proprietary Marks"); WHEREAS, Licensor is engaged in the business of licensing qualified persons to manufacture, sell, transport and install Superior Walls Products under the System using the Proprietary Marks ("Licensed Business"), in designated, geographic areas; WHEREAS, Licensee is entering into this Agreement with Licensor for the purpose of operating a Licensed Business in the geographic area as hereinafter set forth; WHEREAS, Licensee understands and acknowledges the importance of Licensor's high standards of quality and service and the necessity of operating the Licensed Business in conformity with Licensor's standards and specifications. NOW, THEREFORE, in consideration of the mutual covenants, representations, and conditions set forth herein, the parties agree as follows: EAS1\42038113.11 GRANT 1.1 Licensor grants to Licensee the right, and Licensee undertakes the obligation, to operate a Licensed Business, upon the terms and conditions set forth in this Agreement, at the Approved Location described in Section 1.2. Licensee has established and operated the business under the name Advanced Concrete Systems, and the business shall continue to operate under such name. During the term of this Agreement: 1.1.1 Licensee shall have the right to manufacture, sell, and install Superior Walls Products for use in residential, as well as non-residential construction projects; provided, however, that before providing any Superior Walls Product in connection with a non-residential construction project, Licensee (i) must obtain for that specific project an engineering analysis and detailing by a professional engineer registered in the state where the project is located and (ii) must carry the level of insurance for non-residential construction projects required by Section 10 of this Agreement. 1.1.2 Nothing in this Agreement prohibits Licensee from manufacturing, selling and installing other pre -cast products unless they are: (1) building walls (as the term "building" is defined in the 2006 International Building Code) or (2) in competition with Superior Walls Products. There shall be no fees or royalties of any kind being due to Licensor on these other products. 1.1.3 Licensee shall have the right to use all patents or other confidential information or trade secrets, and any other intellectual property, that Licensor designates for use in the System. 1.2 Licensee shall operate the Licensed Business at only the following location: 55 Advanced Lane, Middleburg, PA 17842 (the "Approved Location"). Licensee shall not relocate the Licensed Business, or establish Superior Walls Satellites (as described in Section 7.11 herein), without the prior written approval of Licensor, which approval shall not be unreasonably withheld. 1.3 Except as otherwise provided in this Agreement, during the term of this Agreement: 1.3.1 Licensor shall not itself establish or operate, or license or franchise any other person to establish or operate, a Superior Walls manufacturing business under the System and Proprietary Marks at any location within the counties listed in Exhibit A (collectively referred to as the "Area of Primary Responsibility" or "APR"). 1.3.2 Licensor shall not, and shall not authorize any other Superior Walls licensee or franchisee (whether or not such Superior Walls licensee or franchisee is subject to comparable restrictions to those contained in Section 7.12.2 hereof), to sell or install Superior Walls Products under the System within Licensee's Area of Primary Responsibility; provided, however, that other licensees or franchisees of Licensor, and Licensor, shall have the right to sell or install EAS11420381 13. I I 2 Superior Walls Products under the System within Licensee's Area of Primary Responsibility to those persons or entities named on Exhibit B, attached hereto. Licensee acknowledges that Licensor cannot guarantee that persons, without authority from Licensor to do so, will not sell or install Superior Walls Products in areas of primary responsibility. Licensor shall use its best efforts to require all existing and future franchisees or licensees to enter into the restrictions contained in section 7.12 hereof. 1.3.3 Licensor shall not manufacture, sell, or install (and shall not license or franchise any other persons or entities to manufacture, sell, or install) within the Area of Primary Responsibility any other pre -cast products that are: (1) building walls (as the term "building" is defined in the 2006 International Building Code) or (2) in competition with Superior Walls Products. 1.4 Definitions: For purposes of this Agreement, (1) the term "affiliate" shall mean any legal entity that directly or indirectly controls, is controlled by, or is under common control with another specified legal entity; (2) "retail sale" shall mean any sale by Licensee made directly to a residential or commercial builder, seller/installer or property owner; (3) "wholesale sale and/or distribution" shall mean any sale and/or distribution by Licensee to a third party (other than a residential or commercial builder or property owner) for resale, retail sale, or further distribution by said third party; and (4) "component" shall mean any constituent part, ingredient, element, segment or derivative. 2. TERM AND RENEWAL 2.1 Except as otherwise provided herein, the initial term of this Agreement shall expire on March 18, 2015 unless validly renewed in accordance with the terms of this Agreement. There is no fee due from Licensee to Licensor for the grant of this term or the grant of any renewal term provided herein. 2.2 Licensee may, at its option, renew this Agreement for three (3) successive additional terms of ten (10) years each, provided all of the following conditions have been fulfilled by Licensee prior to each renewal term: 2.2.1 Licensee gives written notice to Licensor of its election to renew no later than one year prior to the expiration of the then -current term (the "Renewal Notice Date"), provided that if Licensee does not give notice of its election to renew the Agreement prior to forty-five (45) days of the Renewal Notice Date, Licensor shall send a written reminder notice to Licensee at least thirty (30) days prior to the Renewal Notice Date requesting Licensee's election as to whether it will renew; 2.2.2 Licensee is not in material default of any provision of this Agreement, any amendment hereof or successor hereto, or any other agreement between Licensee and Licensor or its affiliates; and Licensee has substantially complied with all the terms and conditions of this Agreement and these other agreements during the respective terms thereof; EAS1142038113.11 3 2.2.3 Licensee executes, no later than sixty (60) days prior to the expiration date of this Agreement, the renewal license agreement, the terms of which may only be changed (from the terms of the Agreement then in effect between Licensor and Licensee) by the mutual consent of both the Licensee and the Licensor. In the event that changes are requested and the parties cannot agree on the changes, then the Agreement then in effect between Licensor and Licensee shall be renewed at the option of the Licensee on the terms of the agreement then in effect between Licensor and Licensee, subject to the provisions of this Section 2.2. Under no circumstances shall Licensee be required to pay any initial license fee or other renewal fee; 2.2.4 Licensee shall have satisfied all monetary obligations owed by Licensee to Licensor and its affiliates (other than outstanding accounts payable or royalty payments owed to Licensor that are within the normal payment terms then being offered by Licensor), and shall have timely met those obligations throughout the term of this Agreement; 2.2.5 (Intentionally Deleted). 2.2.6 (Intentionally Deleted). 2.2.7 Licensee and Licensor, and each of their shareholders with an ownership interest in excess of 5%, directors, and officers, shall execute a mutual general release, in the form attached hereto as Exhibit C; and 2.2.8 (Intentionally Deleted). 2.2.9 (Intentionally Deleted). 2.2.10 Notwithstanding the other preceding provisions of Section 2.2 of this Agreement, Licensee shall not forfeit its right(s) of renewal under this Agreement if at the time of such renewal, the Licensee is in good faith disputing a non -monetary obligation that is then being asserted by the Licensor; and in the event that the Licensee's position is subsequently upheld or validated in accordance with the parties' agreed-upon procedures for dispute resolution, the Licensee shall be entitled to renew. 2.11 (Intentionally Deleted) 3. FEES 3.1 (Intentionally Deleted). 3.2 (Intentionally Deleted). 3.3 (Intentionally Deleted). 3.4 Licensee shall pay to Licensor, no later than by the tenth (10th) day of each and every month during the term hereof, a continuing royalty service fee in an amount equal to four (4%) percent of Licensee's Gross Sales for each preceding calendar month or portion thereof, EAST\42038113.11 4 beginning on the date of this Agreement through the end of the term of this Agreement. If payment of the royalty fees described in this section 3.4, as well as any other monetary obligations that are then past due to Licensor (e.g., interest, bank charges), have not been received by Licensor by the twentieth (20th) day of the month, Licensor may utilize the previously executed authorization of automatic payment (debit or ACH) from the Licensee's bank account in favor of the Licensor for payment of the royalty fees for the immediately preceding month and any other amounts then past due to Licensor. Licensor shall notify Licensee on the 15th day of the month of the amount of other obligations to be paid by ACH on the 20th day of the month. (To effectuate this, Licensee shall execute in connection with entering into this Agreement an authorization (Exhibit D) allowing such automatic payment if the royalty fees are not received by Licensor by the twentieth (20th) day of each month.) As used in this Agreement, "Gross Sales" means all revenue (whether or not received in full at the time of sale) for the sale of Superior Walls Products and all other products or services that Licensee has installed that are part of the System, and for transportation and installation of Superior Walls Products, whether for cash or credit, and regardless of collection in the case of credit. Gross Sales shall not include any sales taxes, or other taxes, collected from customers by Licensee and paid directly to the appropriate taxing authority, or any transportation costs from another licensee's or franchisee's licensed or franchised business, so long as there is no common ownership between the licensees or franchisees or businesses involved. For the purpose of this paragraph, "use taxes" are not considered "sales taxes". 3.4.1 Notwithstanding the preceding section of this Agreement, the term "Gross Sales" shall not include (i) any amounts billed for third -party engineering services that are itemized on the Licensee's purchase order contract or other document(s) of sale or (ii) any revenues relating to the manufacture, sale, transportation and installation of products and services other than of Superior Walls Products. Licensee must maintain documentation (e.g., purchase order contract) reflecting, on a per project basis and for each product or service not subject to royalties, the amount of revenue received for that product or service. 3.4.2 (Intentionally Deleted). 3.5 (Intentionally Deleted). 3.6 If any payments or amounts due to Licensor from Licensee under this Agreement are overdue, Licensee shall pay Licensor, upon demand, the overdue amount, plus interest on that amount from the date it was due until the date it is paid, at the rate of eighteen percent (18%) per annum, or the maximum permitted by law, whichever is less. If Licensor incurs any other costs in connection with obtaining any overdue payment, including, but not limited to, any bank charges, Licensee shall reimburse Licensor for those costs. Licensor's entitlement to such interest and other costs shall be in addition to any other remedies Licensor may have. 3.7 Licensee shall not withhold payment or set-off any amounts or payments, of whatever nature, owed to Licensor, on grounds of the alleged non-performance by Licensor of any of its obligations hereunder. Subject to the first sentence of this Section 3.7, nothing precludes Licensee from seeking any remedy that exists at law or equity. EAST142038113.11 5 4. REPORTS AND RECORDS 4.1 All Gross Sales, sales tax, and charges collected on behalf of third parties shall be recorded by Licensee in accordance with generally accepted accounting principles (GAAP), and on such sales recording system as Licensor may determine that it can reasonably rely upon to establish that Gross Sales are being accurately and honestly reported. 4.2 Licensee shall, at Licensee's expense, submit to Licensor the following reports, financial statements, and other data: 4.2.1 No later than the last day of each calendar month, a report of the preceding month's sales, production and installations (it being mutually recognized, however, that on occasion Licensee will have a legitimate reason for being exempt from the timing requirement of this paragraph, and that on such occasions, Licensee shall not be deemed in default if other satisfactory arrangements have been made on the timing of submission of the required report); 4.2.2 No later than the tenth (10th) day of each month, a report accurately reflecting all Gross Sales during the preceding calendar month and all royalties due, on a form reasonably specified by Licensor; 4.2.3 No later than the last calendar day of the month following the end of a fiscal quarter, an unaudited, internally prepared profit and loss statement, a balance sheet, and a statement of cash flows for the fiscal quarter just completed; provided, however, that if Licensee receives a default notice for a monetary default, Licensee shall from that time forward be obligated to submit these reports on a monthly basis for the prior month; 4.2.4 Within one hundred fifty (150) days after the close of each fiscal year of the Licensed Business, a reviewed or audited (by a Certified Public Accountant) financial statement of Licensee, showing total Gross Sales for the previous fiscal year; and 4.2.5 Such other forms, reports, records, information, and data as Licensor may reasonably designate from time to time. 4.3 Not more than once in any twelve (12) month period, Licensor and its designated agents shall have the right, upon reasonable notice to Licensee, and for the sole purpose of determining the accuracy of the Gross Sales reported by Licensee to Licensor, at all reasonable times during normal business hours, to inspect, examine, and copy at Licensor's expense, the books, records, accounts, and tax returns of Licensee (under the condition that the Licensor strictly maintain the confidentiality of all of the information set forth in those documents and limit the use of that information to the sole purpose of determining the accuracy of the Gross Sales reported by Licensee). In the event that an inspection by Licensor or its designated agents, of Licensee's financial records, reveals that the Gross Sales reported by the Licensee for any period of twelve (12) consecutive months are below the actual Gross Sales of Licensee for such period by three percent (3%) or more, then Licensee shall, within five (5) days following receipt of notice from Licensor, pay to Licensor, in addition to the amount understated, interest from the date such amount was due until paid, at the rate of eighteen percent (18%) per annum, or the EAS1142038113.1 I 6 maximum rate permitted by, law, whichever is less, and any and all costs and expenses in connection with the inspection or audit (including, without limitation, travel, lodging and wages expenses, and reasonable accounting and legal costs), and Licensor and its designated agents will no longer be subject to the "once in any twelve (12) month period" limitation noted above. The foregoing remedies shall be in addition to any other remedies Licensor may have, and payment and acceptance of such amounts shall not waive or prejudice any right of Licensor to exercise any other remedy under this Agreement. 5. DUTIES OF LICENSOR 5.1 Licensor shall provide Licensee, at no charge to Licensee, a list of required and recommended equipment, supplies, and sources of supply relating to the manufacture, sale, transportation and installation of Superior Walls Products. 5.2 (Intentionally Deleted). 5.3 Licensor shall loan Licensee, for use during the term of this Agreement, one (1) set of Licensor's Manuals, as more fully described in Section 8 hereof. 5.4 Licensor shall, from time to time during the term hereof, at Licensee's reasonable request, without charge to Licensee, advise and consult by telephone and/or mail, during Licensor's regular business hours, regarding the Superior Walls Products. 5.5 Licensor shall, during the term hereof, at Licensee's reasonable request, and subject to the availability of Licensor's personnel, provide assistance and consultation to Licensee at the Approved Location with respect to the Superior Walls Products. If such assistance and consultation is provided, Licensee shall pay the reasonable travel, food and lodging expenses for Licensor's personnel, as well as Licensor's then -current daily rate for such assistance and consultation, which rate shall be commercially reasonable. 5.6 •Licensor shall, during the term hereof, provide to Licensee Superior Walls advertising materials for purchase and use by Licensee, at Licensee's option and expense, at Licensor's then -current rates or prices, which shall be commercially reasonable. 5.7 Licensor shall, or shall identify a designee to, sell to Licensee the Superior Walls forms and form components ("Superior Walls Forms and Form Components"), which shall be used only for the manufacture of Superior Walls Products. (The current list of Superior Walls Forms and Form Components are set forth in the attached Exhibit E, which may be amended and supplemented at Licensor's discretion upon written notice to Licensee.) Licensor shall, from time to time, make available to Licensee, either from Licensor or a designee, all improvements and additions to the Superior Walls Forms and Form Components for purchase and use by Licensee, at Licensee's expense. The prices for the Superior Walls Forms and Form Components, whether sold by Licensor or a designee, shall be commercially reasonable. Licensee acknowledges and agrees that Licensor or its designee shall have the right to withhold the shipment of any such items in the event Licensee fails to timely make any payments to Licensor as required hereunder. Licensor shall be under no obligation to extend any credit to Licensee in connection with any EAST\42038113.11 7 purchases from Licensor or its designee and, if Licensor decides to accept orders for the Superior Walls Forms and Form Components that are purchased from a designee, Licensee shall make payment along with the submittal of the order. Licensee shall not be prohibited from repairing the Superior Walls Form and Form Components itself, or from purchasing Superior Walls Forms and Form Components, which were manufactured by Licensor or its designee, from other Superior Walls licensees or franchisees. 5.8 (Intentionally Deleted). 5.9 (Intentionally Deleted). 5.10 Licensee acknowledges and agrees that any duty or obligation imposed on Licensor by this Agreement may be performed by any designee, employee, or agent of Licensor, as Licensor may direct. 5.11 Licensor shall provide to Licensee, in conjunction with the execution of this Agreement, all specifications and requirements for the materials and supplies used in the manufacture of Superior Walls Products ("Materials and Supplies"). The current list of Materials and Supplies is set forth in Exhibit F, which may be amended and supplemented at Licensor's discretion upon thirty (30) days written notice to Licensee. Licensor will provide updates to such specifications upon the Licensor changing any specifications in the future. 5.12 Licensor shall use its best efforts to: (1) pursue residential code language in the predominant national model residential building code (which today is the International Residential Code) which would be generally supportive of pre -cast concrete foundation applications under the most common conditions (e.g., not under extreme seismic conditions); and (2) obtain and maintain recognition of compliance by the predominant national model residential building code body (which today is the International Code Council ("ICC")) of the Superior Walls Products in the form of ICC Evaluation Service Reports ("ESRs") or equivalent reports of a successor to the ICC. Licensor's duties, which shall at all times be subject to its best efforts, include the following: 5.12.1 Developing and offering products and services which are designed to be compliant with the predominant national model residential building code and which are appropriate for Licensee's specific market; 5.12.2 Conducting engineering analysis and testing programs to substantiate the compliance referenced in Section 5.12.1; 5.12.3 Maintaining existing ESRs or equivalent reports for the Superior Walls Products and applying for, prior to the expiration of those reports, renewal of existing ESRs or equivalent reports to include the latest edition of the predominant national model residential building code as to which ESRs or equivalent reports are then being issued; 5.12.4 Applying for, by the time a new Superior Walls Product is allowed by Licensor to be offered generally by the license system, an ESR or equivalent report for the new EAST\42038113.1 I 8 Product, which report shall include the latest edition of the predominant national model residential building code as to which ESRs or equivalent reports are then being issued; and thereafter seeking, prior to its expiration, renewal of the report to include the latest edition of the predominant national model residential building code as to which ESRs or equivalent reports are then being issued; 5.12.5 Maintaining staff expertise in the predominant national model building codes; 5.12.6 Providing telephone building code support to licensees (and upon request of Licensee, building code support in the field, provided that Licensee pays all expenses related thereto); and 5.12.7 Maintaining, at Licensor's reasonable discretion, the technical documentation of the System, including QA Manuals, Production Manuals, Builder Guideline Booklet, Technical Guide, and a web -based library of common engineering and drafting details for residential and commercial projects that will be available to Licensee at all reasonable times and at no charge from Licensor to Licensee. 5.13 Licensor's obligations under sections 5.12.1, 5.12.3 and 5.12.4 with respect to a Superior Walls Product shall cease to the extent that, and for as long as, that Superior Walls Product is included, by generic language or otherwise, in, and as satisfying the requirements of, the predominant national model residential building code. 5.14 Licensor shall have the duty not to unreasonably withhold its approval to any supplier proposed by Licensee to become a supplier of Materials and Supplies to Licensee or to the system as a whole. 5.14.1 Under no circumstances shall Licensor withhold or rescind its approval of any supplier of any Materials and Supplies, based upon its desire to be the seller (or the facilitator of the sale) of such Materials and Supplies. Among the reasonable grounds for Licensor to withhold or rescind approval of a supplier of Materials and Supplies would be (as examples, not as a limitation): (i) a reasonable threat to life, health, or safety; (ii) an inability by the supplier to meet the reasonable quality standards established by Licensor; (iii) the financial condition of the supplier; and (iv) whether the supplier is, or has become, a direct competitor of the Superior Walls System. 5.14.2 Under no circumstances shall Licensor require Licensee to purchase any Materials and Supplies or services (whether or not proprietary or patented) from or through Licensor, its affiliate, or its designees. (The term "designee" does not refer to a supplier approved in accordance with Sections 5.14, 5.14.1 and 7.5 of this Agreement.) This provision is not violated by the fact that the Licensor may be the only Approved Supplier if no other supplier entitled to be approved in accordance with Sections 5.14 and 5.14.1 of this Agreement has been proposed by Licensee. Notwithstanding anything in the first sentence of this Section 5.14.2 to the contrary, until such time as the Dow contract is terminated or transferred to a licensee -controlled purchasing entity, Licensor shall offer the Dow XPS (2 1/2 inch) product to Licensee at EAST142038113.11 9 commercially reasonable prices; and further, in the event that Dow agrees to sell to Licensee directly, SWA shall give its consent to such direct sales, and shall cooperate to the extent required to facilitate any transition of the account. 5.14.3 With the sole exception of the Dow contract referenced in Section 5.14.2, unless Licensor is an Approved Supplier or the purchases involved are of Superior Walls Forms and Form Components, Licensor shall not receive any kick -back, payment, or other form of consideration from an Approved Supplier (as defined in section 7.5) or from any other person or entity, that is based, in any way, on any purchases made by Licensee. 5.15 At all times in the exercise of its rights, and in performance of its duties, under this Agreement, Licensor shall be subject to an implied covenant of good faith and fair dealing (the "Implied Covenant") as set forth in the Restatement of Law, Second, Contracts (1981), § 205, and the comments thereto ("the Restatement"); provided, however, that (1) the Implied Covenant shall in no way be applied to override, contradict or reach a result inconsistent with the parties' unambiguous express covenants, rights, obligations and duties contained in this Agreement and (2) as long as the decision, action or inaction involved is in good faith and within the range of fair dealing, it is not a violation of this Agreement that the other party would prefer a different decision, action or inaction which would also be in good faith and within the range of fair dealing. Section 5.15 is included in this Agreement solely for the purpose of ensuring that the designation of Pennsylvania law to be applied to interpret and construe this Agreement does not result in rendering the Implied Covenant inapplicable, as long as the Implied Covenant would be applicable according to the Restatement. The inclusion of the Implied Covenant in this Agreement is not intended to expand the application of the Implied Covenant beyond the scope of the Restatement. 5.16 Licensor has the express duty to protect Licensee's rights to be the exclusive provider of Superior Walls Products within its APR. This duty includes the duty (to this Licensee) to take reasonable steps to enforce (at its own expense) the provisions of its franchise or license agreements with other franchisees or licensees which restrict the ability of those franchisees or licensees from making any sales or soliciting business in the APR of Licensee without the express written approval of Licensee (which Licensee may withhold in its discretion). This duty shall not include filing a legal action against any franchisee or licensee. Licensor acknowledges that Licensee is a third -party beneficiary of all provisions that parallel Section 1.3.2 of this Agreement in Licensor's other franchise or license agreements. Licensee acknowledges that other Superior Walls franchisees and licensees that have provisions in their agreements with Licensor paralleling this Section and Section 1.3.2 of this Agreement are third - party beneficiaries of Section 1.3.2 of this Agreement. 5.17 Licensor shall not (without the express written consent of Licensee) enter into nor continue in a contractual relationship with a third party supplier whereby the contract between Licensor and the third party supplier contains a clause (1) obligating Licensor to require Licensee to purchase Materials and Supplies through Licensor; (2) obligating Licensor to prohibit Licensee from purchasing Materials and Supplies directly from that supplier; or (3) prohibiting the third party supplier from selling Materials and Supplies directly to Licensee. Without suggesting that the existing Dow agreement would or would not violate the first sentence of this EAST142038113.11 10 Section 5.17, Licensor and Licensee agree that so long as Licensor offers Dow products at commercially reasonable prices, Licensee will not in any way attempt to assert that the existing Dow agreement is contrary to the first sentence of this Section 5.17. 6. TRAINING 6.1 (Intentionally Deleted). 6.2 In the event Licensee requests any training from Licensor, Licensor will seek to provide such training, at such location as it designates, subject to the reasonable availability of its personnel. If such training is provided, Licensee shall pay Licensor for the cost of such training at Licensor's then -current daily rate for such training, which shall be commercially reasonable, and shall pay the reasonable travel, lodging, meals and other expenses of Licensor's and Licensee's personnel attending such training, regardless of the location of the training. 7. DUTIES OF LICENSEE 7.1 Licensee understands and acknowledges that every detail of the Licensed Business is important to Licensee, Licensor, and other licensees and franchisees in order to develop and maintain high operating standards, to increase the demand for the Superior Walls Products sold by all licensed businesses operating under the System, and to protect Licensor's reputation and goodwill. 7.1.1 Licensee acknowledges and agrees that the duty to act in good faith and in fair dealing as provided for in Section 5.15 is mutual and reciprocal, and that Licensee shall act consistently with the Implied Covenant as it is defined in that Section at all times in the exercise of its rights, and in performance of its duties, under this Agreement. 7.2 Licensee shall at all times use its commercially reasonable best efforts to promote the sale of Superior Walls Products and to develop and enlarge Licensee's market for such services in its Area of Primary Responsibility; shall use the Approved Location primarily (but not necessarily exclusively) for the operation of the Licensed Business. 7.3 Licensee shall operate the Licensed Business in accordance with methods and procedures prescribed by Licensor in the Manuals, and shall equip the Licensed Business in accordance with the manufacturing, installation and service quality standards and specifications of Licensor, and shall adequately serve market demand and meet and satisfy customer installation and delivery requirements for Superior Walls Products. 7.4 Licensee shall employ at all times at least: 7.4.1 two (2) individuals certified by Licensor in manufacturing, and shall ensure that all manufacturing of Superior Walls Products by the Licensed Business is at all times under the direct, on -premises supervision of an individual so certified; and EASTV12038113.11 11 7.4.2 two (2) individuals certified by Licensor in installation, and shall ensure that all installations of Superior Walls Products performed by the Licensed Business are at all times under the direct, on-site supervision of an individual so certified. 7.4.3 (Intentionally Deleted). 7.5 Licensee shall purchase from Licensor, or its designee, the Superior Walls Forms and Form Components. Licensee shall purchase Materials and Supplies used by Licensee in the operation of the Licensed Business from an Approved Supplier (which may include Licensor). An "Approved Supplier" is defined as a supplier who has been approved in writing by Licensor. At the request of Licensee and subject to approval by Licensor, Licensee shall be permitted to manufacture Materials and Supplies that meet the standards and specifications established by Licensor. Licensor's approval of Licensee's manufacturing such Materials and Supplies shall not be unreasonably withheld. Upon receipt of such approval, Licensee shall be deemed an Approved Supplier for that Material and Supply. Licensee covenants that, unless otherwise authorized by Licensor in writing, all products manufactured and produced under the System and Proprietary Marks will be produced from the Superior Walls Forms and Form Components and the Materials and Supplies. 7.5.1 Licensee agrees that the Superior Walls Forms and Form Components and the Materials and Supplies shall only be used and stored at the Approved Location or at a Superior Walls Satellite location (as defined in section 7.11 of this Agreement), and, without limiting any other provisions of this Agreement, Licensee shall not sell, assign, transfer or convey any right or interest in such Superior Walls Forms and Form Components or the Materials and Supplies or suffer or permit any such sale, assignment, transfer, conveyance or encumbrance to occur by operation of law, without the prior written consent of Licensor. Notwithstanding anything in this Section 7.5.1 to the contrary, Licensee may convey any right or interest, or otherwise encumber the Superior Walls Forms and Form Components or the Materials and Supplies for the benefit of Licensee's primary and secondary lenders, provided that (1) with respect to new lenders or re -financing, the primary and secondary lenders have reached an agreement with Superior Walls regarding the disposition of the Superior Walls Forms and Form Components upon foreclosure or liquidation that is substantially in the form of the procedures for disposition set forth in Section 14.8 of this Agreement and (2) with respect to lender and re -financing arrangements already in place, the primary and secondary lenders need not sign such agreement. 7.5.2 (Intentionally Deleted). 7.5.3 (Intentionally Deleted). 7.6 In the event that Licensee at any time contracts with any person or entity (other than a then -current employee of Licensee) to provide for the sales, transportation, or installation of Superior Walls Products, Licensee shall immediately submit the name of such person or entity to Licensor, and shall itself execute and require such person or entity to execute Licensor's then current, standard Subcontractor (Seller/Installer) Sales, Transportation and Installation Consent Agreement, Subcontractor (Builder is Installer) Installation Consent Agreement, or EAST\420381 13.1 I 12 Subcontractor (Independent Installer) Installation Consent Agreement (the current versions of which are attached as Exhibits G, H, and I hereto), whichever is applicable, prior to permitting any sales, transportation, or installation by such person of Superior Walls Products. Licensee shall require each such person or entity to sell and/or install Superior Walls Products in a manner consistent with the territorial provisions of this Agreement, including, without limitation, in Sections 7.10 and 7.12 hereof. Licensee acknowledges and agrees that Licensee shall at all times be solely liable and responsible for the performance of all of Licensee's obligations under this License Agreement, irrespective of whether Licensee contracts or hires any person or entity as provided in this Section 7.6 or otherwise. 7.7 To insure that the highest degree of quality and service is maintained, Licensee shall operate the Licensed Business in conformity with such methods, standards, and specifications as Licensor may from time to time prescribe in the Manuals or otherwise in writing. Licensee agrees: 7.7.1 (Intentionally Deleted). 7.7.2 To offer for sale all Superior Walls Products under the System that are appropriate for the market in which Licensee operates (provided, however, that, if the R5 and Xi walls are part of the System, Licensee need not offer both the R5 wall and the Xi wall, but Licensee must offer at least one of them); to sell or offer for sale as part of the Licensed Business only Superior Walls Products as have been expressly approved for sale in writing by Licensor; to refrain from any deviation from Licensor's standards and specifications without Licensor's prior written consent; and to discontinue selling and offering for sale as part of the Licensed Business any Superior Wall Products which Licensor may, in its reasonable discretion, disapprove in writing at any time. 7.7.3 (Intentionally Deleted). 7.7.4 To purchase and install, at Licensee's expense, all equipment, decor, supplies, and signs as Licensor may reasonably direct from time to time in the Manuals or otherwise in writing; 7.7.5 (Intentionally Deleted). 7.7.6 To furnish to all purchasers of Superior Walls Products a manufacturer's warranty of a minimum of fifteen (15) years from the date of installation (or such shorter length of time as Licensor may designate in writing from time to time) in the form required by Licensor in the Manuals or otherwise in writing from time to time and to remain liable to such purchasers to perform or pay any repair or remedial work for such products in accordance with such manufacturer's warranty, regardless of whether installation of such products is located within Licensee's Area of Primary Responsibility at the time the obligation to perform or pay for the work under the warranty arises. 7.7.7 To execute a written agreement, within sixty (60) days of Licensor's execution of this Agreement, with a third -party entity designated by Licensor, to conduct EAST \ 42038113.11 13 quarterly inspections of Licensee's manufacturing operations and the Superior Walls Products produced at the Approved Location, to ensure compliance with model building codes and the standards and specifications of the System. Licensee shall be responsible for any and all fees levied by such third -party entity for the provision of inspection services and all other expenses incurred by Licensee in connection with the provision of inspection services by such third -party entity. Licensee shall immediately submit to Licensor a copy of the executed agreement with such third party entity. If an existing agreement (either written or oral) is already in place, such existing agreement shall satisfy the requirements of the first sentence of this Section 7.7.7. 7.8 The Superior Walls Products sold or offered for sale, and the Materials and Supplies used in connection with the Superior Walls Products, shall meet Licensor's then -current standards and specifications, as established in the Manuals or otherwise in writing. Licensee shall purchase all Materials and Supplies solely from Approved Suppliers whom Licensor has designated in the Manuals or otherwise in writing pursuant to Section 5.14 or Section 7.5 of this Agreement. Licensor may from time to time revoke its approval of particular Materials and Supplies and Approved Suppliers when Licensor determines, in its discretion, that such Materials and Supplies and Approved Suppliers no longer meet Licensor's standards. Upon receipt of written notice of such revocation, Licensee shall cease to purchase any disapproved Materials and Supplies and any Materials and Supplies from any disapproved supplier; however, unless the disapproved Materials and Supplies or the Materials and Supplies from a disapproved supplier are reasonably deemed to be a threat to life, health, or safety, Licensee may continue to use any Materials and Supplies purchased prior to receipt of the notice of revocation until such are expended in the normal course of business. 7.9 (Intentionally Deleted). 7.10 For each calendar year specified in Exhibit J hereto, Licensee shall have sold and installed a sufficient number of foundations in its Area of Primary Responsibility to achieve the projected Market Share Percentage (as defined in Section 7.10.1 below) specified in Exhibit J (individually, a "Performance Standard" and collectively, the "Performance Standards"); provided, however, that if Licensee's APR is reduced, for any reason, the applicable Performance Standard shall be reduced in a fair and equivalent manner (which may, or may not, in the particular circumstance, be pro rata). 7.10.1 For purposes of this Agreement, "Market Share Percentage" is defined as the quotient of (a) the number of foundations installed by Licensee in Licensee's Area of Primary Responsibility during a calendar year divided by (b) the number of residential housing starts offering basement opportunities for the corresponding calendar year as provided by Dodge Reports (or other reliable sources of information, including, but not limited to, actual building permits) within the APR, expressed as a percentage. Licensor shall share with Licensee all original information obtained from those reports for use in gathering data for consideration pursuant to this section. 7.10.2 Within thirty (30) days before the start of each calendar year (the "Subject Year") covered by this Agreement, Licensor and Licensee will mutually agree on Performance Standards for that calendar year. In the event that Licensee's Market Share Percentage falls EAS7\420381 13.11 14 below the Performance Standard for the Subject Year by an amount greater than 10% of the applicable Performance Standard, Licensor may, without limitation, give Licensee written notice that, if Licensee fails to meet the Performance Standard for the subsequent calendar year, Licensor shall have the right, in its reasonable discretion, upon written notice to Licensee, to remove the territorial protection specified in Section 1.3.2 hereof in Licensee's APR for sales and installations of Superior Walls Products. In the event that Licensee's Market Share Percentage falls below the Performance Standard for the Subject Year by an amount greater than 20% of the applicable Performance Standard, Licensor may, without limitation, give Licensee written notice that, if Licensee fails to meet the Performance Standard for the subsequent calendar year, Licensor may, upon written notice to Licensee, (a) reduce Licensee's Area of Primary Responsibility, and/or (b) remove the territorial protection specified in Section 1.3.2 hereof in Licensee's Area of Primary Responsibility for sales and installations of Superior Walls Products. Licensee acknowledges and agrees that, notwithstanding the receipt of such notice, Licensee shall be required to fulfill all the Performance Standards for each calendar year hereunder. 7.10.3 In the event that Licensor removes only the territorial protection specified in Section 1.3.2 hereof in Licensee's Area of Primary Responsibility for sales and installations of Superior Walls Products, Licensor shall have the right to authorize other franchisees, licensees, or third parties to sell and install Superior Walls Products under the System and the Proprietary Marks in Licensee's Area of Primary Responsibility; provided, however, that Licensee shall retain the territorial rights in such area described in Section 1.3.1 hereof. In the event that Licensor reduces the Licensee's Area of Primary Responsibility in accordance with Section 7.10.2 of this Agreement and gives it to another franchisee or licensee, the Licensee will no longer be permitted to sell or install Superior Walls Products in that area given to the other franchisee or licensee. 7.11 Notwithstanding anything in Section 1.2 hereof to the contrary, Licensee may, with the prior written approval of Licensor, open and operate one (1) or more Superior Walls Satellites, in addition to the Approved Location, within the Area of Primary Responsibility. A "Superior Walls Satellite" shall mean a location other than Licensee's Approved Location at which Licensee is permitted to engage in the Licensed Business. Any Superior Walls Satellite(s) shall comply with all the provisions set forth in this Agreement. 7.12 Licensee acknowledges and agrees that: 7.12.1 (Intentionally Deleted). 7.12.2 Licensee shall have the right to directly solicit clients or customers for the sale or installation of, or sell or install, Superior Walls Products outside of its Area of Primary Responsibility only if any direct solicitations for such sales or such installations are made within an area not currently assigned as an area of primary responsibility to another franchisee or licensee under the Superior Walls System (except for sales or installations to persons or entities identified on Exhibit B) and not a market area in which Licensor has advised Licensee in writing that Licensor, any affiliate of Licensor, or any other third -party with which Licensor has EAST \42038113.11 15 contracted for the sale of Superior Walls Products is selling Superior Walls Products under the System. 7.12.3 (Intentionally Deleted). 7.12.4 In the event that Licensee solicits, sells and/or installs Superior Walls Products outside its Area of Primary Responsibility, as described in Section 7.12.2 hereof, within thirty (30) days of receipt of written notice from Licensor that Licensor has assigned such area as an area of primary responsibility to another of Licensor's franchisees or licensees, or has designated such area as a market area or area of primary responsibility for Licensor, any affiliate of Licensor, or a third -party with which Licensor has contracted for the sale of Superior Walls Products, Licensee shall discontinue all such solicitation and sales activity in such area. With respect to any contracts signed by both Licensee and third parties prior to the date of Licensor's notice for sales or installation of Superior Walls Products in such area, Licensee shall be permitted to continue the installation of such Superior Walls Products for a period not to exceed ninety (90) days from the date of Licensor's notice. During such ninety (90) day period, Licensee shall transfer all accounts with customers and clients in such area to the party assuming responsibility for such area, use its best efforts to cooperate with such party and provide customer lists for such area to such party. Licensee acknowledges and agrees that it is not guaranteed any right to sell Superior Wall Products outside its Area of Primary Responsibility and that its rights to sell such products outside its Area of Primary Responsibility are limited as described in this Agreement. 7.13 (Intentionally Deleted). 7.14 If Licensee wishes to use such software programs as Licensor may make available, Licensee shall execute Licensor's standard Software License Agreement to utilize such software programs. (Licensor's current standard Software License Agreement, which may be amended in the future, is attached as Exhibit K.) The fee charged by Licensor for such software programs shall be commercially reasonable. 7.15 Licensee expressly understands and agrees that from time to time Licensor, upon reasonable notice, may change, modify, update or improve the System (including, but not limited to, its Manuals) in its discretion; such changes may include, but are not limited to, (1) altering the programs, methods, standards, forms, policies and procedures of the System; or (2) adding to, removing from, or modifying, the Superior Walls Products. Licensee expressly agrees, subject to reasonability standards (including economic investment requirements), to adopt and abide by such modifications, changes, additions, deletions and alterations in a timely manner, as specified by Licensor in writing. 7.16 In the event Licensee, its employees, agents or representatives discover or invent any change, improvement, or modification (collectively, "Invention") to any aspect of the Superior Walls System, Licensee shall submit the same to Licensor for its review. If Licensor determines that all or part of the Invention should be incorporated into the System, Licensor shall notify Licensee of Licensor's approval and of the extent and manner in which such Invention may be used. Licensee hereby agrees that such Invention shall be considered Licensor's EAS7\42038113.11 16 Confidential Information (as defined in Section 9.2) and Licensee hereby grants to Licensor all right, title, and interest in the submitted Invention (whether or not approved) to the same extent as if Licensor were the discoverer or inventor, including, without limitation, the right to apply, obtain, and own patents and/or copyrights for such Invention or the right to sub -license such Invention. 7.17 In the event that Licensor and Licensee shall agree to jointly conduct a research, development, and testing project, Licensee agrees to execute Licensor's standard Project Research, Development and Testing Agreement, in the form attached hereto as Exhibit L, granting and confirming Licensor's sole and exclusive ownership of, and right to all materials, processes, and products researched, developed, and tested by Licensee pursuant to such Project Research, Development and Testing Agreement. 7.18 Licensee shall permit Licensor or its agents at any time during normal business hours, to enter the Licensed Business to inspect the premises, test the Superior Walls Products and the Materials and Supplies used in their production, and to examine equipment and supplies, and to observe and monitor installations of Superior Walls Products on-site, for the purpose of determining compliance with this Agreement and Licensor's standards of quality. Licensee shall cooperate with representatives of Licensor in such inspections by rendering such assistance as they may reasonably request; and, upon notice from Licensor or its agents, and without limiting Licensor's other rights under this Agreement, shall take such steps as may be necessary to correct immediately any material deficiencies detected during any such inspection. 7.18.1 Licensee further agrees to permit Licensor or its agents, accompanied by prospective licensees or franchisees of Licensor, to enter the Licensed Business at any time during normal business hours, in order to tour the premises and observe the operation of the Licensed Business. Licensee shall cooperate with representatives of Licensor in such tours by rendering such assistance as they may reasonably request. Licensor shall provide Licensee at least forty-eight (48) hours notice, which need not be written, prior to conducting any such tour of the Licensed Business. 7.19 Licensee further agrees to permit, and to fully cooperate, in inspections as may be required by any building code standard-setting organization (including, without limitation, the International Code Council ("ICC")) recognized by and/or followed by local governmental agencies with authority to set building code standards in any jurisdiction in which Licensee does business, as directed by Licensor from time to time. Licensee shall pay its pro -rata share of evaluation report fees and renewal fees associated with any ESR or other report referenced in Section 5.12 for those product lines offered for sale by the Licensee at the time of application. Such cooperation or active participation by Licensee shall not alter or waive Licensor's responsibilities or obligations under Section 5.12 of this Agreement. 7.20 Licensee shall forward promptly to Licensor all claims, demands, summons, subpoenas, process or notice of order for appearance, writ, injunction, award or decree of any court, agency, or other governmental instrumentality, in any suit or proceeding in which Licensor, or any entity affiliated with Licensor, may be involved, or which would materially adversely affect the operation or financial condition of the Licensed Business, and furnish any EAS7\42038113.11 17 information which Licensor may reasonably require, and if Licensor or its affiliate is involved, to cooperate with its attorneys and insurers in the defense of same. 7.21 In the event that Licensee fails to comply with any of the material requirements of the System, this Agreement, the Manuals, or the standards and specifications of Licensor, which would in the reasonable judgment of Licensor result in any Superior Walls Product that is (or is likely to be) materially defective or likely to impair the goodwill associated with the System, Licensee shall, upon receipt of written notice from Licensor, immediately cease to manufacture, sell, transport, and install that Superior Walls Product until such time as Licensee receives written notice from Licensor that the deficiencies have been corrected. 7.22 Licensee shall comply with all laws, regulations, and ordinances pertaining to the Licensed Business; and shall be responsible for obtaining acceptance (and approval, if applicable) at the municipal and local levels; it being recognized, however, that Licensee's duty to obtain such acceptance (and approval, if applicable) shall not alter or waive Licensor's responsibilities, or obligations, under Section 5.12 of this Agreement. 7.23 Licensee shall ensure that all advertising and promotional materials, signs, decorations, and other items specified by Licensor bear the Proprietary Marks in the form, color, location, and manner prescribed by Licensor. All advertising and promotion by Licensee shall be in such media and of such type and format as Licensor may approve, shall be conducted in a dignified manner, and shall conform to such standards and requirements as Licensor may specify. Licensor recommends that Licensee make use of advertising and promotional materials developed and offered by Licensor, but Licensee is not required to do so. If Licensee wishes to make use of advertising and promotional plans or materials not developed by Licensor, Licensee shall submit samples of all such advertising and promotional plans and materials for any print, broadcast, cable, electronic, computer, or other media (including, without limitation, the Internet) to Licensor, for Licensor's prior approval (except with respect to prices to be charged). Licensee shall not use such plans or materials until they have been approved in writing by Licensor. Licensor reserves the right to approve or disapprove all advertising, promotional, and marketing materials in its reasonable discretion. If Licensor does not disapprove any advertising, promotional or marketing materials within ten (10) business days of receipt of the written submission, such material shall be deemed approved by the Licensor. 7.24 (Intentionally Deleted). 7.25 (Intentionally Deleted). 7.26 Within thirty (30) days of the effective date of this Agreement, Licensee shall procure, and shall maintain throughout the term of this Agreement, a toll free telephone number for the Licensed Business, which number shall be effective throughout Licensee's Area of Primary Responsibility. 7.27 Licensee shall maintain an E-mail address for the Licensed Business and each of its key personnel. Licensee shall be, and at all times remain, the sole owner of such E-mail addresses; provided, however, that (1) if the E-mail address contains a reference to "Superior EAS'I\42038113.11 18 Walls" or its equivalent, upon termination or expiration of this Agreement, Licensee shall cease to use that E-mail address and (2) Licensee may arrange to have its E-mail forwarded to a new E- mail address not containing a reference to "Superior Walls" or its equivalent. 7.28 Licensor shall make available to Licensee access to an Internet site to be used in connection with the Licensed Business or Licensee may create its own Internet site (the "web site"). Licensee, at its expense, shall pay the initial web site set up fee and maintain such web site continuously during the term hereof. In connection with the web site, Licensee shall comply with the following requirements, and all other applicable requirements set forth by Licensor in the Manuals or otherwise in writing: 7.28.1 Licensee may add to the web site information regarding the Licensed Business that Licensee wishes to incorporate into the web site; provided, however, that Licensee may only use information, web materials, web pages, and web site content which Licensor has approved in advance in writing. If Licensor does not disapprove such information, web materials, web pages, and web site content within ten (10) business days of receipt of the written submission, such material shall be deemed approved by the Licensor. 7.28.2 (Intentionally Deleted). 7.28.3 (Intentionally Deleted). 7.28.4 Licensor shall be, and at all times remain, the sole owner of the domain name and/or home page address for the Web Site of Licensor. 7.29 (Intentionally Deleted). 7.30 Licensee shall advise Licensor of all shareholders', partners' or members' ownership interests in Licensee as of the effective date of this Agreement in the form attached hereto as Exhibit M, and shall immediately advise Licensor in writing of any change in the stockholders, directors, officers, members or partners or their ownership interests from time to time. 8. CONFIDENTIAL OPERATING MANUALS 8.1 Licensee shall operate the Licensed Business in strict compliance with the operational systems, procedures, policies, methods and requirements of the System, as prescribed by Licensor from time to time in the Manuals, one (1) copy of which Licensee shall receive on loan from Licensor, for use in the Licensed Business for the term of this Agreement and all renewals. 8.2 Licensee, its agents, independent contractors, and employees shall at all times treat the Manuals and the information contained therein as confidential, and shall use reasonable efforts to maintain such information as secret and confidential. Licensee shall not copy, duplicate, record, or otherwise reproduce the foregoing materials, in whole or in part, or otherwise make the same available to any unauthorized person. EAST W2038113.11 19 8.3 (Intentionally Deleted). 8.4 Licensee acknowledges and agrees that, as between Licensee and Licensor, the Manuals shall at all times remain the sole property of Licensor and shall be kept in a secure place on the Licensed Business premises. 8.5 Licensee shall at all times ensure that its copy of the Manuals are current and up- to-date. In the event of any dispute as to the contents of the Manuals, the terms of the master copy of the Manuals maintained by Licensor, at Licensor's principal office, shall be controlling. 9. CONFIDENTIAL INFORMATION & PATENTS 9.1 Licensee shall not during the term of this Agreement, or at any time thereafter, communicate, divulge, or use (or permit to be divulged or used) for the benefit of any other person or entity not then authorized to use the System, any Confidential Information, as defined herein, knowledge, or know-how concerning the System or operation of the Licensed Business which may be communicated to Licensee by virtue of Licensee's operation under the terms of the Agreement. 9.2 Licensee specifically understands and affirms that the following (but only to the extent that Licensor has maintained such confidentiality in actual practice) has been deemed to constitute confidential information which Licensee acknowledges and agrees belongs (as between Licensee and Licensor) solely to Licensor: all information related to products, services, technologies, techniques, standards, specifications, procedures, the Manuals, the Superior Walls Forms and Form Components and other proprietary equipment in connection with Superior Walls Products and/or the System (collectively, "Confidential Information"). 9.3 Neither Licensee, nor any of its owners, shareholders, directors, officers, employees, representatives or agents, shall at any time copy, duplicate, record or otherwise reproduce the Confidential Information, in whole or in part, or otherwise make same available to any third party, except as authorized herein. 9.4 Licensee shall require its owners who hold more than a 5% interest in Licensee, directors, officers and/or employees with management responsibilities, to covenant that they will maintain the confidentiality of the Confidential Information by executing Licensor's Patent and Copyright Assignment and Non -Disclosure Agreement, in the form attached hereto as Exhibit N (the "Confidentiality Agreement"). Licensee shall be responsible for the enforcement of the provisions of this Section 9.4 and shall submit copies of all such executed Confidentiality Agreements to Licensor within thirty (30) days of the execution of such Confidentiality Agreement, which shall be executed by those described above in this section within five (5) days of becoming required to execute such Agreement. 9.5 Licensee shall promptly notify Licensor of any suspected unauthorized use or infringement of any copyright(s), patents, or other Confidential Information used or contained in the System, or of any challenge to Licensor's right to use and to license others to use, or EAST\42038113.11 20 Licensee's right to use, such copyright(s), patents, or Confidential Information. Licensor shall make commercially reasonable efforts to enforce its right to use and to license others to use, and Licensee's right to use, such copyright(s), patents, and Confidential Information. Except for any such rights the Licensee may retain to enforce the Confidentiality Agreement against those persons or entities identified in Section 9.4 as being required to execute that Confidentiality Agreement, Licensee acknowledges that Licensor has the sole right to direct and control any administrative proceeding or litigation involving such copyright(s), patents, or Confidential Information, including any settlement thereof. Licensor shall defend and indemnify Licensee against any third -party claim, suit, or demand arising out of Licensee's use of such copyright(s), patents, or Confidential Information. If Licensor, in its discretion, determines that Licensee has used the copyright(s), patents, or Confidential Information in accordance with this Agreement, the cost of such defense, including the cost of any judgment or settlement, shall be borne by Licensor. If Licensor, in its discretion, determines that Licensee has not used the copyright(s), patents, or Confidential Information in accordance with this Agreement, the cost of such defense, including the cost of any judgment or settlement, shall be borne by Licensee. In the event of any litigation relating to Licensee's use of the copyright(s), patents, or Confidential Information, Licensee shall execute any and all documents and do such acts as may, in the reasonable opinion of Licensor, be necessary to carry out such defense or prosecution, including, but not limited to, becoming a nominal party to any legal action. Except to the extent that such litigation is the result of Licensee's use of the copyright(s), patents, or Confidential Information in a manner inconsistent with the terms of this Agreement, Licensor agrees to reimburse Licensee for its out- of-pocket costs in doing such acts. 10. INSURANCE 10.1 Licensee shall maintain in full force and effect at all times during the term of this Agreement, at Licensee's expense, an insurance policy or policies protecting Licensee, Licensor, Licensor's affiliates, and their respective officers, directors, partners, agents, and employees against any demand or claim with respect to personal injury, death, or property damage, or any loss, liability, or expense whatsoever arising or occurring upon or in connection with the Licensed Business. 10.2 Such policies shall be written by a responsible carrier, shall name Licensor, its affiliates, and its and their respective officers, directors, partners, agents and employees as additional insureds, and shall provide at least the following coverages, which may be modified from time to time by Licensor, in its reasonable discretion, by written notice, and Licensee shall be obligated to immediately purchase insurance conforming to the newly -established standards and limits prescribed by Licensor: 10.2.1 Commercial (broad form comprehensive) general liability coverage, including contractual liability (broad form) coverage in an amount not less than Two Million Dollars ($2,000,000) per occurrence and aggregate for residential projects and Three Million Dollars ($3,000,000) per occurrence and aggregate for non-residential projects; such policy shall not have a deductible or self-insured retention in excess of Fifteen Thousand Dollars ($15,000); EAST1420381 1 3.1 1 21 10.2.2 Workers' Compensation, Employer's Liability Insurance, and Unemployment Insurance for Licensee's employees (in statutory or other required amounts); 10.2.3 Fire and Extended Coverage Insurance on Licensee's Licensed Business, vehicle(s) and property in an amount adequate to replace them in the event of an insured loss; 10.2.4 Business Interruption Insurance in sufficient amounts to cover the rent or mortgage payment of the Licensed Business, vehicle(s), maintenance of competent personnel and other fixed expenses. Notwithstanding anything in this Article 10 to the contrary, Licensee shall have sixty (60) days from the Effective Date of this Agreement to procure Business Interruption Insurance; 10.2.5 Automobile Insurance in an amount not less than One Million Dollars ($1,000,000) to cover personal injuries and/or personal damages, and the value of such vehicle; and 10.2.6 Any other insurance of such type and in such amounts as are required by applicable law. 10.3 Licensee shall not reduce the policy limits, restrict coverage, cancel or otherwise alter or amend said insurance policies without Licensor's prior written consent, and shall ensure that all such policies comply with the following: 10.3.1 shall not contain any provision which in any way limits or reduces coverage for the Licensee in the event of a claim by any one (1) or more of the Indemnitees (as defined in Section 17.5); 10.3.2 shall extend to, and provide indemnity for, all obligations assumed by Licensee hereunder and all other items for which Licensee is required to indemnify Licensor under the provisions of this Agreement; 10.3.3 shall be primary to, and without right of contribution from, any other insurance purchased by Indemnitees; and 10.3.4 shall provide by endorsement that Licensor is entitled to receive at least thirty (30) days prior written notice of any intent to reduce policy limits, restrict coverage, cancel or otherwise alter or amend said policy. 10.4 (Intentionally Deleted). 10.5 Licensee shall promptly provide Licensor with Certificates of Insurance ("Certificates") evidencing the coverage required hereunder no later than ten (10) days prior to the renewal of any policy. All Certificates shall expressly provide that no less than thirty (30) days' prior written notice shall be given Licensor in the event of material alteration to or cancellation of the coverage evidenced by such Certificates. 10.6 (Intentionally Deleted). EAST\420381 13.1 1 22 10.7 If Licensee fails to procure or maintain the insurance required by this Agreement, Licensor shall have the right (but not the obligation) to obtain, through agents and insurance companies of its choosing, such insurance on behalf of Licensee. Payments for such insurance shall be borne by Licensee, and Licensee expressly agrees to pay the required premiums or to reimburse Licensor therefor immediately upon demand. 11. PROPRIETARY MARKS 11.1 Licensor represents with respect to the Proprietary Marks that Licensor has the right to use, and to license others to use, the Proprietary Marks. 11.2 With respect to Licensee's use of the Proprietary Marks pursuant to this Agreement, Licensee agrees that: 11.2.1 Licensee shall use only the Proprietary Marks designated by Licensor, and shall use them only in the manner authorized and permitted by Licensor and only for the operation of the Licensed Business; 11.2.2 Licensee shall use the Proprietary Marks only for the operation and marketing of the Licensed Business. Any other businesses operated by Licensee (whether or not operated from the location of the Licensed Business), and any other products or services sold by Licensee, shall not be associated with the Licensed Business or the Proprietary Marks, nor with any name of any business or entity which contains the words "Superior Walls" or its equivalent; 11.2.3 Licensee shall not apply for, or use, the words "Superior Walls" or any of the Proprietary Marks as part of any domain name or home page address on the Internet, unless authorized in advance by Licensor; 11.2.4 In any fictitious name filings, Licensee shall clearly indicate such filings are by Licensee and not Licensor; 11.2.5 Licensee shall identify itself as the owner of the Licensed Business in conjunction with any use of the Proprietary Marks, including, but not limited to, on invoices, order forms, receipts, and business stationery, as well as at such conspicuous locations as Licensor may designate in writing at the premises of the Licensed Business, and on any delivery vehicles used in the operation of the Licensed Business; 11.2.6 Licensee's right to use the Proprietary Marks is limited to such uses as are authorized under this Agreement, and any unauthorized use thereof shall constitute an infringement of the rights of Licensor; 11.2.7 Licensee shall not use the Proprietary Marks to incur any obligation or indebtedness on behalf of Licensor; EAST142038I 13.1 1 23 11.2.8 Licensee shall execute any documents deemed reasonably necessary by Licensor to obtain protection for the Proprietary Marks or to maintain their continued validity and enforceability; and 11.2.9 Licensee shall promptly notify Licensor of any suspected unauthorized use of the Proprietary Marks, any challenge to the validity or ownership of the Proprietary Marks, or any challenge to Licensor's right to use and to license others to use, or Licensee's right to use, the Proprietary Marks. Licensor shall make commercially reasonable efforts to enforce its right to use and to license others to use, and Licensee's right to use, the Proprietary Marks against uses by others that may constitute infringement of the Proprietary Marks. Licensee acknowledges that Licensor has the sole right to direct and control any administrative proceeding or litigation involving the Proprietary Marks, including any settlement thereof. Licensor shall defend Licensee against any third -party claim, suit, or demand arising out of Licensee's use of the Proprietary Marks. If Licensor, in its discretion, determines that Licensee has used the Proprietary Marks in accordance with this Agreement, the cost of such defense, including the cost of any judgment or settlement, shall be borne by Licensor. If Licensor, in its discretion, determines that Licensee has not used the Proprietary Marks in accordance with this Agreement, the cost of such defense, including the cost of any judgment or settlement, shall be borne by Licensee. In the event of any litigation relating to Licensee's use of the Proprietary Marks, Licensee shall execute any and all documents and do such acts as may, in the reasonable opinion of Licensor, be necessary to carry out such defense or prosecution, including, but not limited to, becoming a nominal party to any legal action. Except to the extent that such litigation is the result of Licensee's use of the Proprietary Marks in a manner inconsistent with the terms of this Agreement, Licensor agrees to reimburse Licensee for its out-of-pocket costs in doing such acts. 11.3 Licensee expressly understands and acknowledges that: 11.3.1 As between Licensor and Licensee, Licensor is the owner of all right, title, and interest in and to the Proprietary Marks and the goodwill associated with and symbolized by them, and Licensor has the right to use, and license others to use, the Proprietary Marks; 11.3.2 The Proprietary Marks are valid and serve to identify the System and those who are authorized to operate under the System; 11.3.3 During the term of this Agreement and after its expiration or termination, Licensee shall not directly or indirectly contest the validity or ownership of the Proprietary Marks, or Licensor's right to use and to license others to use the Proprietary Marks, nor shall Licensee directly or indirectly harm, dilute or infringe upon the Proprietary Marks; 11.3.4 Licensee's use of the Proprietary Marks does not give Licensee any ownership interest or other interest in or to the Proprietary Marks; 11.3.5 As between Licensor and Licensee, any and all goodwill in the Proprietary Marks arising from Licensee's use of the Proprietary Marks shall inure solely and exclusively to the benefit of Licensor, and upon expiration or termination of this Agreement, no monetary EAST\ 42038113.11 24 amount shall be assigned as attributable to any goodwill associated with Licensee's use of the System or the Proprietary Marks; 11.3.6 Except as specified in Section 1.3 hereof, the license of the Proprietary Marks granted hereunder to Licensee is nonexclusive, and Licensor thus has and retains the rights to itself use and grant other licenses for the Proprietary Marks in connection with selling products and services as set forth in Section 23.1 of this Agreement; and 11.3.7 Licensor reserves the right to add or substitute different Proprietary Marks for use in identifying the System and the Licensed Business at Licensor's discretion, and Licensee shall comply with such addition or substitution within a reasonable time, at Licensee's reasonable expense. 12. TRANSFER OF INTEREST 12.1 Licensor shall have the right to Transfer (as defined in Section 12.2) this Agreement, and any or all of its rights and obligations herein, to any person or legal entity, and any designated assignee of Licensor shall become solely responsible for all obligations of Licensor hereunder, and shall expressly assume and agree to perform such obligations. 12.2 Licensee represents and warrants that one hundred percent (100%) of its issued and outstanding shares are owned by those persons and entities listed on attached Exhibit M. Neither Licensee nor any immediate or remote successor to any part of Licensee's interest in this Agreement, nor any Principal, any individual, partnership, corporation, limited liability company, or other legal entity which directly or indirectly owns any interest in Licensee or in the Licensed Business shall sell, assign, transfer, convey, pledge, encumber, merge, or give away (collectively, "Transfer") this Agreement, any direct or indirect interest in this Agreement, in Licensee, in any Principal, such that alone or together with other previous, simultaneous or proposed transfers would have the effect of transferring this Agreement, or a controlling interest in Licensee or in all or substantially all of the assets of the Licensed Business without the prior written consent of Licensor. Any purported assignment or Transfer of a controlling interest not having the written consent of Licensor required by this Section 12.2 shall be null and void. Notwithstanding anything in this Section 12.2 to the contrary, Licensee and Principals may Transfer membership interests among themselves or to an immediate family member or in connection with an estate planning transaction, to the Licensee as part of a redemption or to convey any right or interest, or otherwise encumber their assets (except for the Superior Walls Forms and Form Components, as to which Section 7.5.1 of this Agreement shall apply) for the benefit of Licensee's primary and secondary lenders. (A "Principal" is a person or entity that is a named owner or has at least a 20% ownership interest.) 12.3 Licensee shall notify Licensor in writing of any proposed Transfer of a controlling interest in this Agreement, in Licensee, in any Principal, or in all or substantially all of the assets of the Licensed Business at least thirty (30) days before such Transfer is proposed to take place. If Licensor's consent to any Transfer is required, as set forth in section 12.2 hereof, then Licensor shall not unreasonably withhold its consent to such Transfer; provided, however, that EAST\ 42038113.11 25 Licensor may, in its reasonable discretion, require any or all of the following as conditions of its approval: 12.3.1 That all of Licensee's accrued monetary obligations (other than outstanding accounts payable or royalty payments owed to Licensor that are within the normal payment terms then being offered by Licensor to Licensee) and all other outstanding obligations to Licensor and its affiliates have been satisfied; 12.3.2 That Licensee is not in default of any material provision of this Agreement, any amendment hereof or successor hereto, or any other agreement between Licensee and Licensor or its affiliates; 12.3.3 That the transferor, Licensee and the Licensor shall have executed mutual general releases, in a form mutually satisfactory to transferor, Licensor and Licensee, of any and all claims between transferor and Licensor and between Licensee and Licensor, and their respective current and former affiliates, and their respective current and former officers, directors, shareholders, agents, and employees, excluding only such claims relating to (i) any provision or covenant of this Agreement which expressly or by its nature imposes obligations beyond the expiration of this Agreement; (ii) claims for indemnification relating to actions of third parties; and (iii) outstanding accounts payable or royalties payable to Licensor that were not yet required to be paid to Licensor pursuant to Section 12.3.1 of this Agreement because they are within the normal payment terms then being offered by Licensor to Licensee; 12.3.4 That the transferee (and, if the transferee is other than an individual, such owners of a beneficial interest in the transferee as Licensor may request) enter into a written assignment, in a form satisfactory to Licensor, assuming and agreeing to discharge all of Licensee's obligations under this Agreement. Alternatively, the transferee may sign a written acknowledgment of the agreement and in that event, the transferee shall be bound by its terms; 12.3.5 That the transferee (and, if the transferee is other than an individual, such owners of a beneficial interest in the transferee as Licensor may request) demonstrate to Licensor' s reasonable satisfaction that it has the aptitude and ability to operate the Licensed Business (as may be evidenced by prior related business experience or otherwise), and has adequate financial resources and capital to operate the Licensed Business, with such standards being no more stringent than those then being applied by the Licensor with respect to new licensees then entering the system; 12.3.6 (Intentionally Deleted). 12.3.7 (Intentionally Deleted). 12.3.8 That Licensee remain liable for all of the obligations to Licensor in connection with the Licensed Business which arose prior to the effective date of the Transfer. 12.3.9 (Intentionally Deleted). EAS1142038113.11 26 12.3.10 If Licensor does not disapprove such proposed Transfer within thirty (30) days of receipt of written notice, then the proposed Transfer shall be deemed approved by the Licensor. 12.4 If Licensor's prior written consent has been given to the proposed Transfer, such Transfer must be effectuated in full within one hundred and eighty (180) days following such consent or it shall be deemed automatically withdrawn and subject again to the requirements under this Section. 12.5 Licensee may grant a security interest in the Licensed Business (including, without limitation, the Superior Walls Forms and Form Components and Materials and Supplies) for the benefit of Licensee's primary and secondary lenders without Licensor's consent, provided that, with respect to new lenders or re -financing, the primary and secondary lenders have reached an agreement with Licensor regarding the disposition of the Superior Walls Forms and Form Components upon foreclosure or Iiquidation in the form of the procedures for disposition set forth in Section 14.8 of this Agreement. 13. DEFAULT AND TERMINATION 13.1 Automatic Default: Licensee shall be deemed to be in default under this Agreement, and all rights granted to Licensee herein shall automatically terminate without notice to Licensee, if Licensee shall become insolvent or make a general assignment for the benefit of creditors; if a petition in bankruptcy is filed by Licensee or such a petition is filed against and not opposed by Licensee; if Licensee is adjudicated bankrupt or insolvent; if a bill in equity or other proceeding for the appointment of a receiver of Licensee or other custodian for Licensee's business or assets is filed and consented to by Licensee; if a receiver or other custodian (permanent or temporary) of Licensee's assets or property, or any part thereof, is appointed by any court of competent jurisdiction; if proceedings for a composition with creditors under any state or federal law should be instituted by or against Licensee; if a final judgment remains unsatisfied or of record for thirty (30) days or longer (unless supersedeas bond is filed); if Licensee is dissolved; if execution is levied against Licensee's business or property; or if the real or personal property of the Licensed Business shall be sold after levy thereupon by any sheriff, marshal, or constable. 13.2 Incurable Defaults: Upon the occurrence of any of the following events of default, Licensor may, at its option, terminate this Agreement and all rights granted hereunder without affording Licensee any opportunity to cure the default, effective immediately upon the provision of notice to Licensee (in the manner provided under Section 21 hereof): 13.2.1 If any purported Transfer of a direct controlling interest in this Agreement, in Licensee, or in all or substantially all of the assets of the Licensed Business is made to any third party contrary to the terms of Section 12 hereof; EAS71420381 13.1 1 27 13.2.2 If Licensee knowingly maintains materially false or misleading books or records, or knowingly submits any materially false or misleading reports to Licensor; 13.2.3 If Licensee, or its principal, member, officer or manager, is convicted of a felony, a crime involving moral turpitude, or any other crime or offense that Licensor reasonably believes is likely to have a material adverse effect on the System, the Proprietary Marks, the goodwill associated therewith, or Licensor's interest therein; 13.2.4 If Licensee refuses to permit either a representative of Licensor, or of any authorized private building code standard setting organization inspector recognized by Licensor, to inspect, examine, or audit the Licensed Business or Licensee's work sites, or the books (non- financial), records, or accounts of Licensed Business upon demand; 13.2.5 If Licensee at any time voluntarily ceases to operate or otherwise abandons the Licensed Business, or otherwise intentionally forfeits the right to do or transact business in the jurisdiction where the Licensed Business is located for more than fourteen (14) consecutive days in any consecutive twelve (12) month period; 13.2.6 If a threat or danger to public safety results from Licensee's operation of the Licensed Business, provided that if Licensor determines in its reasonable discretion that the threat or danger to public safety is curable, Licensee shall have thirty (30) days from the date of Notice to cure the default; 13.2.7 If, contrary to the terms of Section 9 hereof, Licensee intentionally discloses or divulges the contents of the Manuals, trade secrets, or other Confidential Information provided to Licensee by Licensor; 13.2.8 If Licensee, after curing a default pursuant to Section 13.3 hereof, commits the same default again within the next twelve (12) months, whether or not cured after notice; 13.2.9 If Licensee, on any three (3) or more occasions within any twelve-month period, sells or installs Superior Walls Products in violation of the Area of Primary Responsibility provisions of Section 7. 13.3 Curable Defaults: Except as otherwise provided in Sections 13.1 and 13.2 of this Agreement, upon any other default by Licensee, Licensor may terminate this Agreement by giving written notice of termination (in the manner set forth under Section 21 hereof) stating the nature of the default to Licensee at least thirty (30) days prior to the effective date of termination; provided, however, that Licensee may avoid termination by immediately initiating a remedy to cure such default, curing it to Licensor's reasonable satisfaction, and by promptly providing proof thereof to Licensor within such thirty -day period. If any such default is not cured within the specified time, or such longer period as applicable law may allow, this Agreement shall terminate without EAST\42038113.11 28 further notice to Licensee, effective immediately upon the expiration of the thirty (30) day period or such longer period as applicable law may require. 13.4 Defaults of Area of Primary Responsibility ("APR") Provisions: In addition to and without limitation of Licensor's rights under Sections 13.2 and 13.3 hereof, in the event of a breach by Licensee of the requirements under Section 7.12 hereof on any one or more occasions, Licensee shall, on each such occasion, within fifteen (15) days of the date of a written notice from Licensor, be required to pay twenty-five percent (25%) of the total compensation received by Licensee for such sales or installations, to such franchisee, licensee, Licensor, affiliate of Licensor, or any such other third -party, as applicable. 13.5 Notwithstanding any other provision of this Agreement, upon a default by Licensee under Sections 13.2, 13.3, or 13.4 hereof, Licensor shall have the right, in its reasonable discretion, to take any or all of the following actions by giving written notice (in the manner set forth under Section 21 hereof) stating the nature of the default to Licensee: (a) to reduce Licensee's Area of Primary Responsibility described in Section 1.3.1 hereof, and/or (b) to remove the territorial protection in Licensee's Area of Primary Responsibility described in Section 1.3.2 hereof for sales and installations of Superior Walls Products; and/or (c) to terminate this Agreement in accordance with the applicable provisions of Section 13.2, 13.3 or 13.4 hereof. 14. OBLIGATIONS UPON TERMINATION Upon termination or expiration of this Agreement, all rights granted hereunder to Licensee shall forthwith terminate, and: 14.1 Licensee shall immediately cease to operate the Licensed Business, and shall not thereafter, directly or indirectly, represent to the public or hold itself out as a present licensee or franchisee of Licensor. 14.2 Licensee shall immediately and permanently cease to use, in any manner whatsoever, any Confidential Information; the Proprietary Marks and distinctive forms, slogans, signs, symbols, and devices associated with the System, including, without limitation, all Superior Walls Forms and Form Components, signs, marketing materials, displays, stationery, products, and any other articles which display the Proprietary Marks. 14.3 Licensee shall take such action as may be necessary to cancel any assumed name registration or equivalent registration obtained by Licensee which contains the words "Superior Walls" or any Proprietary Marks, and Licensee shall furnish Licensor with evidence satisfactory to Licensor of compliance with this obligation within thirty (30) days after termination or expiration of this Agreement. 14.4 (Intentionally Deleted). EAM42038113.11 29 14.5 Licensee agrees, in the event it continues to operate or subsequently begins to operate any other business, not to use, either in connection with such other business or the promotion thereof, (1) the words "Superior Walls"; or (2) any reproduction, counterfeit, copy, or colorable imitation of the Proprietary Marks, which, in Licensor's judgment, is likely to cause confusion, mistake, or deception, or which, in Licensor's judgment, is likely to dilute Licensor's rights in and to the Proprietary Marks. Licensee further agrees not to utilize any designation of origin, description, or representation (including, but not limited to, reference to the Licensor, the System, or the Proprietary Marks) which, in Licensor's judgment, suggests or represents a present or former association or connection with Licensor, the System, or the Proprietary Marks. 14.6 Licensee shall promptly pay all sums owing to Licensor and its affiliates. 14.7 Licensee shall immediately deliver to Licensor the Manuals; all Confidential Information; and any copies of the foregoing, even if such copies were made in violation of this Agreement; all of which are acknowledged to be the property of Licensor, and shall retain no copy or record of any of the foregoing, with the exception of Licensee's copy of this Agreement, any correspondence between the parties, and any other documents which Licensee reasonably needs for compliance with any provision of law. 14.8 Licensor shall have the option, to be exercised within thirty (30) days after termination or expiration, to purchase from Licensee any or all of the Superior Walls Forms and Form Components, at the then -fair market price. If the parties cannot agree on the price of any such items within a reasonable time (not to exceed 30 days), an independent qualified appraiser shall be designated by each party and their determination shall be binding on both parties. If these appraisers are unable to agree on a price, they will designate a third appraiser whose determination shall be binding upon both parties. If Licensor elects to exercise any option to purchase herein provided, it shall have the right to set off all amounts due from Licensee, and the cost of the appraisal, if any, against any payment therefore. If Licensor elects not to exercise an option to purchase the Superior Walls Forms and Form Components as herein provided, it shall have the right to approve, in its sole discretion, any sale of such Superior Walls Forms and Form Components by Licensee (and Licensee acknowledges that such sales will be restricted to other franchised or licensed businesses within the Superior Walls system) and, if the Superior Walls Forms and Form Components are not so sold by Licensee, Licensee shall, within thirty (30) days after termination or expiration, destroy the Superior Walls Forms and Form Components and provide to Licensor proof thereof. Notwithstanding anything in this Section 14.8 to the contrary, Licensor's rights shall be subordinated to those of Licensee's primary and secondary lenders and subject to the terms and conditions of any agreements between Licensor and the primary and secondary lenders regarding the disposition of Licensee's Superior Walls Forms and Form Components and Materials and Supplies. 14.9 Licensee shall comply with the covenants contained in Section 15.2 of this Agreement. 14.10 Licensee shall irrevocably assign and transfer to Licensor or its designee any and all interests Licensee may have in the Web Site maintained by Licensee in connection with the Licensed Business and in the domain name and home page address related to such Web Site. EAST\42038113.11 30 Licensee shall execute any documents and perform any other actions required by Licensor to effectuate such assignment and transfer and otherwise ensure that all rights in such Web Site revert to Licensor or its designee. Licensee may not establish any Web Site using any similar or confusing domain name and/or home page address, and Licensee may not identify itself on any Web Site as a former licensee or franchisee of Licensor. 15. COVENANTS NOT TO COMPETE 15.1 Licensee covenants that during the term, except as otherwise approved in writing by Licensor, Licensee and its Principals shall not, either directly or indirectly, for itself, or through, on behalf of, or in conjunction with any person or legal entity: 15.1.1 Divert or attempt to divert any present or prospective business or customer of the Licensed Business or of any of the other of Licensor's franchised or licensed businesses to another business that offers products or services which are the same as or in competition with Superior Walls Products, by direct or indirect inducement or otherwise, or do or perform, directly or indirectly, any other act injurious or prejudicial to the goodwill associated with the Proprietary Marks and the System; 15.1.2 Except by written agreement executed by the parties, employ or seek to employ any person who is at that time employed by Licensor or by any party operating any other of Licensor's franchised or licensed businesses under the System, or otherwise directly or indirectly induce such person to leave his or her employment; provided that the Licensor shall not, except by written agreement executed by the parties, employ or seek to employ any person who is at that time employed by Licensee. 15.1.3 Except for other of Licensor's licensed or franchised businesses under the System, own, maintain, operate, engage in, be employed by, be a consultant to, loan money to, provide any assistance to, or have any interest in (as owner or otherwise) any business that offers products or services which are the same as or in competition with the Superior Walls Products; or 15.1.4 Engage in the wholesale sale and/or distribution (as defined in Section 1.4) of (1) any Superior Walls Products; (2) any other product or service which closely resembles or are related to the Superior Walls Products; or (3) any Materials and Supplies, without the prior written consent of Licensor (other than the sale of Materials and Supplies to other franchisees or licensees in the system as long as the Materials and Supplies meet the standards and specifications of Licensor and Licensee has been approved in accordance with Sections 5.14 and 7.5). 15.2 Licensee covenants that, except as otherwise approved in writing by Licensor, Licensee and its Principals shall not, for a continuous uninterrupted period of two (2) years commencing upon the date of: (a) a Transfer permitted under Section 12 of this Agreement; (b) expiration of this Agreement; (c) termination of this Agreement (regardless of the reason for termination); (d) a final order of a court of competent jurisdiction (after all appeals have been taken) with respect to any of the foregoing or with respect to enforcement of this Section 15; or EAS7\420381 13.11 31 (e) any or all of the foregoing; either directly or indirectly, for itself, or through, on behalf of, or in conjunction with any person or legal entity: 15.2.1 Divert or attempt to divert any present or prospective business or customer of the Licensed Business or of any other of Licensor's franchised or licensed businesses to another business that offers products or services which are the same as or in competition with the Superior Walls Products, or do or perform, directly or indirectly, any other act injurious or prejudicial to the goodwill associated with the Proprietary Marks and the System; 15.2.2 Except for Licensee's or any Principal's pre-existing interest in another of Licensor's franchised or licensed businesses, own, maintain, operate, engage in, be employed by, provide assistance to, or have any interest in (as owner or otherwise) any business that offers products or services which are the same as or in competition with the Superior Walls Products, and is, or is intended to be, located at or within: 15.2.2.1 the Area of Primary Responsibility; 15.2.2.2 a sixty (60) mile radius of the Approved Location; and 15.2.2.3 sixty (60) miles of the perimeter of the Area of Primary Responsibility. 15.3 Sections 15.1 and 15.2 shall not apply to ownership by Licensee of a less than five percent (5%) beneficial interest in the outstanding equity securities of any corporation which has securities registered under the Securities Exchange Act of 1934. 15.4 Licensee understands and acknowledges that Licensor shall have the right, in its reasonable discretion, to reduce the scope of any covenant set forth in Sections 15.1 and 15.2, or any portion thereof, without Licensee's consent, effective immediately upon receipt by Licensee of written notice thereof; and Licensee agrees that it shall comply forthwith with any covenant as so modified, which shall be fully enforceable notwithstanding the provisions of Section 22.3 hereof. 15.5 Licensee expressly agrees that the existence of any claims it may have against Licensor, whether or not arising from this Agreement, shall not constitute a defense to the enforcement by Licensor of the covenants in this Section 15. 15.6 (Intentionally Deleted). 15.7 (Intentionally Deleted). 15.8 (Intentionally Deleted). 15.9 Licensor covenants that during the term, except by written agreement executed by the parties, Licensor shall not employ or seek to employ any person who is at that time employed EAST142038113.11 32 by Licensee, or otherwise directly or indirectly induce such person to leave his or her employment. 16. (Intentionally Deleted). 17. RELATIONSHIP OF THE PARTIES AND INDEMNIFICATION 17.1 This Agreement does not create a fiduciary relationship between the parties. Licensee shall be an independent contractor of Licensor, and nothing in this Agreement is intended to constitute either party an agent, legal representative, subsidiary, partner, joint venturer, employee, or servant of the other for any purpose whatsoever. Licensee shall not, without the prior written approval of Licensor, have any power to obligate Licensor for any expenses, liabilities or other obligations, other than as is specifically provided for in this Agreement. 17.1.1 Neither Licensor nor Licensee shall, without the prior written approval of the other, have any power to obligate the other for any expenses, liabilities or other obligations, other than as is specifically provided for in this Agreement. 17.1.2 Neither Licensor nor Licensee shall have the power to hire or fire the other's employees and may not exercise control over or have access to the other's funds or the expenditure thereof or in any other way exercise dominion or control over the other's business. No employee of Licensee shall be deemed to be an employee of Licensor; and no employee of Licensor shall be deemed to be an employee of Licensee. 17.2 It is expressly understood and agreed that neither Licensee nor any employee of Licensee whose compensation for services is paid by Licensee may, in any way, directly or indirectly, expressly or by implication, be construed to be an employee of Licensor for any purpose, including, without limitation, any mandated or other insurance coverage, tax or contributions, or requirements pertaining to withholdings, levied or fixed by any city, state or federal governmental agency. Likewise, it is expressly understood and agreed that neither Licensor nor any employee of Licensor whose compensation for services is paid by Licensor may, in any way, directly or indirectly, expressly or by implication, be construed to be an employee of Licensee for any purpose, including, without limitation, any mandated or other insurance coverage, tax or contributions, or requirements pertaining to withholdings, levied or fixed by any city, state or federal governmental agency. 17.3 Licensee shall identify itself with its clients, contractors, suppliers, public officials and others, as an independent licensee of Licensor, and shall place such notice of independent ownership on all business cards, purchase orders and contracts. 17.4 Except as otherwise expressly authorized by this Agreement, neither party hereto will make any express or implied agreements, warranties, guaranties or representations or incur any debt in the name of or on behalf of the other party, or represent that the relationship between Licensor and Licensee is other than that of Licensor and Licensee. Licensor does not assume any liability, and will not be deemed liable, for any agreements, representations, or warranties made EAS1 42038113.11 33 by Licensee which are not expressly assumed by Licensor in writing, nor will Licensor be obligated for any damages to any person or property which directly or indirectly arise from or relate to the operation of the Licensed Business. 17.5 The respective indemnity obligations of Licensor and Licensee are as follows: 17.5.1 Except as described in Sections 9.5 and 11.2.9 hereof, Licensee agrees at all times to defend at its own cost, and to indemnify and hold Licensor, its affiliates, and their respective directors, officers, employees, agents, shareholders, designees, and representatives thereof (collectively, "Licensor Indemnitees") harmless from and against all losses and expenses (as defined in Section 17.6) incurred in connection with any action, suit, proceeding, claim, demand, investigation, or formal or informal inquiry (regardless of whether same is reduced to judgment) ("claim") or any settlement thereof which arises out of or is asserted against Licensor based on the actual or alleged acts or omissions of Licensee, or its employees, agents or subcontractor(s) by reason of the operation of the business (including, but not limited to, the Licensed Business) conducted by Licensee, including, but not limited to, alleged violation or breach of any contract, federal, state or local law, regulation, ruling, standard or directive or of any industry standard; libel or slander; or Licensee's alleged violation or breach of any warranty, representation, agreement or obligation in this Agreement. In no event shall Licensee be required to indemnify any of the Licensor Indemnitees for any loss or against any claim arising from the actual acts or omissions of the Licensor or any of its employees, agents, affiliates or subcontractors. 17.5.2 Except as described in Sections 9.5 and 11.2.9 hereof, Licensor agrees at all times to defend at its own cost, and to indemnify and hold Licensee, its affiliates, and their respective directors, officers, employees, agents, shareholders, designees, and representatives thereof (collectively, "Licensee Indemnitees") harmless from and against all losses and expenses (as defined in Section 17.6) incurred in connection with any action, suit, proceeding, claim, demand, investigation, or formal or informal inquiry (regardless of whether same is reduced to judgment) ("claim") or any settlement thereof which arises out of or is asserted against Licensee based on the actual or alleged acts or omissions of Licensor, or any of its employees, agents, affiliates, or subcontractor(s) in connection with its or their activities under this Agreement, including, but not limited to, alleged violation or breach of any contract, federal, state or local law, regulation, ruling, standard or directive or of any industry standard; libel or slander; or Licensor's alleged violation or breach of any warranty, representation, agreement or obligation in this Agreement. In no event shall Licensor be required to indemnify any of the Licensee Indemnitees for any loss or against any claim arising from the actual acts or omissions of the Licensee or any of its employees, agents, affiliates or subcontractors. 17.6 The term "losses and expenses", as referred to in Section 17.5 of this Agreement, and its subsections, shall be deemed to include, but is not limited to, all losses (whether direct, consequential, or other), compensatory, exemplary or punitive damages, fines, charges, costs, expenses, lost profits, reasonable attorneys' fees and expenses, court costs, settlement amounts, judgments, and any and all expenses of recall, refunds, compensation, and/or public notices. EAST\ 42038113.11 34 17.7 Notice: 17.7.1 Licensor agrees to give Licensee immediate notice of any such claim under section 17.5.1 of this Agreement. At Licensee's expense, Licensor may elect to assume (but is not obligated to undertake) the defense and/or settlement of any such claim with counsel of Licensor's own choosing, provided that Licensor will seek the advice and counsel of Licensee, and will keep Licensee informed, with regard to any such proposed or contemplated settlement(s). 17.7.2 Licensee agrees to give Licensor immediate notice of any such claim under section 17.5.2 of this Agreement. At Licensor's expense, Licensee may elect to assume (but is not obligated to undertake) the defense and/or settlement of any such claim with counsel of Licensee's own choosing, provided that Licensee will seek the advice and counsel of Licensor, and will keep Licensor informed, with regard to any such proposed or contemplated settlement(s). 17.8 Non -Assumption: 17.8.1 Licensor Indemnitees do not assume any liability whatsoever for acts, errors, or omissions of those with whom Licensee may contract, regardless of the purpose. Licensee shall hold harmless and indemnify Licensor Indemnitees for all losses and expenses which may arise out of acts, errors or omissions of these third parties. Licensor Indemnitees shall not be required or obligated to seek recovery from third parties or otherwise mitigate their losses in order to maintain a claim against Licensee. Licensee agrees that the failure to pursue such recovery or mitigate loss will in no way reduce the amounts recoverable by Licensor Indemnitees from Licensee. 17.8.2 Licensee Indemnitees do not assume any liability whatsoever for acts, errors, or omissions of those with whom Licensor may contract, regardless of the purpose. Licensor shall hold harmless and indemnify Licensee Indemnitees for all losses and expenses which may arise out of acts, errors or omissions of these third parties. Licensee Indemnitees shall not be required or obligated to seek recovery from third parties or otherwise mitigate their losses in order to maintain a claim against Licensor. Licensor agrees that the failure to pursue such recovery or mitigate loss will in no way reduce the amounts recoverable by Licensee Indemnitees from Licensor. 17.9 (Intentionally Deleted). 17.10 (Intentionally Deleted). 17.11 (Intentionally Deleted). 17.12 (Intentionally Deleted) EAST142038 1 13.11 35 18. SEVERABILITY AND CONSTRUCTION 18.1 If any provision of this Agreement shall be invalid or unenforceable, either in its entirety or partially or because of its application to particular circumstances, such provision shall, by mutual intention herein expressed by the parties hereto, be deemed modified to the minimum extent necessary to render such provision valid or applicable or to be eliminated from this Agreement, as required, and this Agreement shall be construed and enforced as if such provision had been originally so modified or eliminated. In the event that total or partial invalidity or unenforceability of any provision of this Agreement exists only with respect to the laws of a particular jurisdiction, this Section shall apply only to the extent that the laws of such jurisdiction are controlling. 18.2 Section headings are for ease of reference only. They are not a part of this Agreement and shall not limit or define the meaning of any provision. 18.3 Any personal pronoun shall include the masculine, feminine and/or neuter thereof, and the singular of any noun or pronoun shall include the plural and plural the singular, wherever the context may require. 19. TAXES, PERMITS, AND INDEBTEDNESS 19.1 Licensee shall promptly pay when due all taxes levied or assessed, including, without limitation, unemployment and sales taxes, and all accounts and other indebtedness of every kind incurred by Licensee in the operation of the Licensed Business. 19.2 In the event of any bona fide dispute as to Licensee's liability for taxes assessed or other indebtedness, Licensee may contest the validity or the amount of the tax or indebtedness in accordance with procedures of the taxing authority or applicable law, but in no event shall Licensee permit a tax sale or seizure by levy or execution or similar writ or warrant, or attachment by a creditor, to occur against the premises of the Licensed Business, or any improvements thereon. 19.3 Licensee shall comply with all federal, state, and local laws, rules, and regulations, and shall timely obtain any and all permits, certificates, or licenses necessary for the full and proper conduct of the Licensed Business, including, without limitation, licenses to do business, fictitious name registrations, sales tax permits, and fire clearances. 20. APPLICABLE LAW; DISPU1 h, RESOLUTION 20.1 This Agreement shall be interpreted and construed in accordance with the laws of the Commonwealth of Pennsylvania, notwithstanding any conflict of laws rules, subject, however, to the requirements of Section 5.15 and Section 7.1.1 of this Agreement. 20.1.1 Venue for any litigation arising under or relating to this Agreement shall be in the state or federal court serving the Harrisburg, PA or Philadelphia, PA areas. The parties EAST142038113.11 36 hereby waive all questions of personal jurisdiction, venue and convenience of forum for the purpose of carrying out this provision. 20.2 In any litigation or legal proceeding arising under or in connection with this Agreement, the prevailing party shall be entitled to recover the reasonable costs and expenses, including reasonable attorneys' fees and expert fees, it incurred in connection with the claims on which that party prevailed. 20.3 Except where injunctive relief to prevent potential irreparable harm is involved, the parties agree that before any litigation is filed, they will attempt to mediate the dispute using a mediator mutually agreeable to the parties. 20.4 (Intentionally Deleted). 20.5 Licensor and Licensee hereby waive to the fullest extent permitted by law any right to or claim of any punitive or exemplary damages against the other. 20.6 Nothing herein contained shall bar either party's right to obtain injunctive relief against threatened conduct that will cause it loss or damage. 21. NOTICES Any and all notices required or permitted under this Agreement shall be in writing and shall be personally delivered, sent by registered mail or return receipt requested, postage fully prepaid or sent by other means which affords the sender evidence of delivery or rejected delivery, to the respective parties at the following addresses: To Licensor: SUPERIOR WALLS OF AMERICA, LTD. 937 East Earl Road New Holland, PA 17557 ATTN: James J. Costello, President To Licensee: ADVANCED CONCREIt. SYSTEMS, INC. 55 Advanced Lane Middleburg, PA 17842 ATTN: Michael P. Daven, President_ Addresses may be changed at any time upon written notice thereof to the other party. Any notice by a means which affords the sender evidence of delivery or rejected delivery shall be deemed to have been given and received at the date and time of receipt or rejected delivery. 22. MISCELLANEOUS 22.1 No failure by Licensor to take action on account of any default by Licensee, whether in a single instance or repeatedly, shall constitute a waiver of any such default or of the performance required of Licensee. Likewise, no failure by Licensee to assert any breach by the EAST1420381 I 3.11 37 Licensor whether in a single instance or repeatedly shall constitute any waiver of any such breach or of the performance required of Licensor. 22.2 Neither Licensor nor Licensee shall be held liable for failure to comply with any of the terms of this Agreement when such failure is caused directly or indirectly by fire, strike, declared or undeclared war, riots, insurrections, government restrictions or other acts, or causes beyond the control of and without fault of either them or their employees, agents, or representatives. 22.3 This Agreement constitutes and contains the entire agreement and understanding of the parties with respect to the subject matter hereof, and it may be modified only by a written document executed by the party sought to be bound or obligated. The parties hereby acknowledge there are no representations, understandings, agreements, terms or conditions not contained or referred to in this Agreement, and that this Agreement supersedes any prior written or oral agreements, representations, or inducements. 22.4 This Agreement may be executed in any number of identical counterparts, and each such counterpart shall be deemed a duplicate original hereof. 23. ACKNOWLEDGMENTS; RETAINED RIGHTS 23.1 Notwithstanding anything in this Agreement to the contrary, Licensor retains all rights, without granting Licensee any rights therein, to sell directly or indirectly any product or service, within or outside of Licensee's APR, as long as it is not (a) expressly prohibited by Sections 1.3.1, 1.3.2 or 1.3.3 of this Agreement or (b) in the APR in competition with Licensee's sale of Superior Walls Products. 23.2 Licensee acknowledges, warrants and represents to Licensor that: 23.2.1 No representation has been made by Licensor (or any employee, agent or salesperson thereof) and relied upon by Licensee as to the future or past income, earnings and growth, expenses, sales volume or potential profitability, earnings or income of the Licensed Business or the viability of the Licensed Business being offered hereunder; 23.2.2 Prior to the execution of this Agreement, Licensee has had the opportunity to contact all existing licensees and franchisees of Licensor. 23.2.3 Licensee has had the opportunity to independently investigate, analyze and construe both the business opportunity being offered hereunder, and the terms and provisions of this Agreement, utilizing the services of counsel, accountants or other advisors (if Licensee so elects). 23.2.4 Licensee has received from Licensor a copy of Licensor's Franchise Disclosure Document (FDD), together with a copy of all proposed agreements relating to the sale of the license hereunder, at least fourteen (14) calendar days prior to the execution of this Agreement. EAST\42038113.11 38 23.2.5 No representation or statement has been made by Licensor (or any employee, agent or salesperson thereof) and relied upon by Licensee regarding Licensee's ability to procure any required license or permit that may be necessary to the offering of one or more of the products or services contemplated to be offered by the Licensed Business. 23.2.6 Licensee has been advised to consult with its own advisors with respect to the legal, financial and other aspects of this Agreement, the business licensed hereby, and the prospects for that business. Licensee has either consulted with such advisors or has deliberately declined to do so. 23.2.7 Licensee affirms that all information set forth in any and all applications, financial statements and submissions to Licensor is true, complete and accurate in all respects, with Licensee expressly acknowledging that Licensor is relying upon the truthfulness, completeness and accuracy of such information. 23.2.8 Licensee acknowledges that under applicable U.S. law, including, without limitation, Executive Order 13224, signed on September 23, 2001 (the "Order"), Licensor is prohibited from engaging in any transaction with any person engaged in, or with a person aiding any person engaged in, acts of terrorism, as defined in the Order. Accordingly, Licensee represents and warrants to Licensor that, as of the date of this Agreement, neither Licensee nor any person holding any ownership interest in Licensee, controlled by Licensee, or under common control with Licensee is designated under the Order as a person with whom business may not be transacted by Licensor, and that Licensee (1) does not, and hereafter shall not, engage in any terrorist activity; (2) is not affiliated with and does not support any individual or entity engaged in, contemplating, or supporting terrorist activity; and (3) is not acquiring the rights granted under this Agreement with the intent to generate funds to channel to any individual or entity engaged in, contemplating, or supporting terrorist activity, or to otherwise support or further any terrorist activity. 23.3 No remedy conferred upon or reserved to the Licensor or Licensee by this Agreement is intended to be exclusive of any other remedy. Each and every remedy shall be cumulative and shall be in addition to any other remedy given to Licensor or Licensee hereunder or now or hereafter existing at law or in equity. 23.4 Licensor acknowledges that Licensee may elect to join or to serve as an officer or director of an independent association of Superior Walls licensees and franchisees. Licensor agrees that it shall not retaliate in any way against Licensee, based upon Licensee's participation in such independent association, by denying Licensee any rights to which it is entitled. 23.5 This Agreement is the result of extensive negotiation between the parties and their respective legal counsel and the contract construction principle of construing language against the drafter shall have no applicability here because both parties and their counsel participated in the drafting of the language of this Agreement. EAS1\42038113.11 39 THIS AGREEMENT SHALL NOT BE BINDING ON LICENSOR OR LICENSEE UNLESS AND UNTIL IT SHALL HAVE BEEN ACCEPTED AND SIGNED BY AN AUTHORIZED OFFICER OF LICENSOR. LICENSEE HAS READ ALL OF THE FOREGOING AGREEMENT AND HEREBY ACCEPTS AND AGREES TO EACH AND ALL OF THE PROVISIONS, COVENANTS AND CONDITIONS THEREOF. EAST W2038113.11 [THE NEXT PAGE IS THE SIGNATURE PAGE] 40 IN WITNESS WHEREOF, the parties hereto have executed this Agreement, as of the day and yea. r indicated below. Witness/Attest EAs 11420381 13.11 LICENSEE ADVANCED CONCRETE SYSTEMS, INC. By: Date ichael P. Daven, President LICENSOR SUPERIOR WA _ _ OF AMERICA, LTD. #400101, By. Ja es J. Costello, President /Vav: /9 908 Date 41 State Name(s) Pennsylvania EXHIBIT A Area of Primary Responsibility (APR) Advanced Concrete (Licensee Name) County List: Blair Bradford Cameron Carbon Centre Clearfield Clinton Columbia Cumberland Elk Huntingdon Jefferson Juniata Lackawanna Lehigh Luzerne Lycoming Mifflin Monroe Montour Northampton Northumberland Perry Pike Potter Schuylkill Snyder Sullivan Susquehanna Tioga Union Wayne Wyoming Page 1 of 1 EXHIBIT B TERRITORY EXCEPTIONS 1. S & A Homes 2. Sperry Homes 3. Today's Housing 4. Barry Bechtal 5. Lincoln Logs Page 1of1 EXHIBIT C MUTUAL RELEASE AGREEMENT This Release Agreement (the "Agreement") is made and entered into on this day of , 20_, by and between Superior Walls of America, Ltd. ("Superior Walls"), Advanced Concrete Systems, Inc. ("Licensee"), [owners], [directors] and [officers] (collectively, "Operators"). Background A. Superior Walls and Licensee are parties to that certain License Agreement dated (the "License Agreement"). B. Licensee has requested that Superior Walls renew the License Agreement for an additional ten (10) year term. C. In connection with Superior Walls' agreement to renew the License Agreement, and in compliance with Section 2.2.7, thereof, the parties have agreed to release each other from any and all claims that may have arisen prior to the date of this Agreement. Agreement NOW, THEREFORE, in consideration of the mutual covenants, representations, and conditions set forth herein, the parties agree as follows: 1. Licensee and Operators (for themselves and, to the extent permitted by law, on behalf of all other Licensee Released Parties as herein defined) hereby release and forever discharge Superior Walls, and its current and former predecessors, successors, heirs and assigns, and its and their current and former subsidiaries, parent companies, affiliates, divisions, departments, agents, attorneys, representatives, employees, owners, shareholders, partners, officers and directors (the "SWA Released Parties"), from any and all suits, claims, controversies, rights, promises, debts, liabilities, demands, obligations, costs, expenses, actions and causes of action of every nature, character, and description, in law or in equity, whether presently known or unknown, vested or contingent, suspected or unsuspected, related or unrelated to the License Agreement, the license relationship and/or any other agreement, as to law or facts or both, which Licensee, Operators and/or any of the Licensee Released Parties now own or hold or have at any time heretofore owned or held, or may at any time own or hold against any of the SWA Released Parties, which arose prior to the date of this Agreement; provided, however, that (a) nothing in this paragraph shall release any claims for indemnification pursuant to the License Agreement; and (b) nothing in this paragraph shall release any claims for monies owed in the ordinary course of business. The Licensee Released Parties, and each of them, also covenant not to sue any of the SWA Released Parties regarding any of the claims being released under this Agreement. (Mutual Release Agreement) 9-29-2008 Page 1 of 3 2. Superior Walls (for itself and, to the extent permitted by law, on behalf of all other SWA Released Parties as herein defined) hereby releases and forever discharges Licensee and Operators, their current and former predecessors, successors, heirs and assigns, and their current and former subsidiaries, parent companies, affiliates, divisions, departments, agents, attorneys, representatives, employees, owners, shareholders, partners, officers and directors (the "Licensee Released Parties"), from any and all suits, claims, controversies, rights, promises, debts, liabilities, demands, obligations, costs, expenses, actions and causes of action of every nature, character, and description, in law or in equity, whether presently known or unknown, vested or contingent, suspected or unsuspected, related or unrelated to the License Agreement, the license relationship and/or any other agreement, as to law or facts or both, which Superior Walls and/or any of the SWA Released Parties now own or hold or have at any time heretofore owned or held, or may at any time own or hold against any of the Licensee Released Parties, which arose prior to the date of this Agreement; provided, however, that (a) nothing in this paragraph shall release any claims for indemnification pursuant to the License Agreement; and (b) nothing in this paragraph shall release any claims for monies owed in the ordinary course of business. The SWA Released Parties, and each of them, also covenant not to sue any of the Licensee Released Parties regarding any of the claims being released under this Agreement. 3. The Parties each represent and warrant that they have not heretofore assigned or transferred or purported to assign or transfer to any person, firm or corporation whatsoever, any claim, controversy, right, promise, debt, liability, demand, obligation, cost, expense, action or cause of action herein released. If there is any claim, controversy, right, promise, debt, liability, demand, obligation, cost, expense, action or cause of action based on or arising out of or in connection with any such transfer or assignment or purported transfer or assignment, the Party which made or purported to make such transfer or assignment agrees to indemnify and hold the other Party harmless against such claim, controversy, right, promise, debt, liability, demand, obligation, cost, expense, action or cause of action, including reasonable attorneys' fees and costs incurred in connection therewith. 4. This Agreement shall be interpreted and governed by the laws of the Commonwealth of Pennsylvania, notwithstanding any conflict of law rules. Any dispute arising under this Agreement shall be adjudicated exclusively in the state or federal courts sitting or having jurisdiction in Harrisburg or Philadelphia, Pennsylvania, and Superior Walls, Licensee, and Operators, each irrevocably consent to the jurisdiction of such courts and each hereby waive any venue objections they may have to adjudicating disputes in such courts. 5. Any modification or amendment to this Agreement must be in writing signed by authorized representatives of all parties. 6. The person signing this Agreement represents that he/she has full and proper authority to sign on behalf of the Company he/she represents, and declares that the terms of this Mutual Release have been read and voluntarily accepted. 7. This Agreement may be executed in any number of counterparts, all of which shall constitute one and the same instrument. (Mutual Release Agreement) 9-29-2008 Page 2 of 3 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. Attest Attest Attest (Mutual Release Agreement) 9-29-2008 LICENSEE: Advanced Concrete Systems, Inc. BY: OPERATORS: BY: SUPERIOR WALLS OF AMERICA, LTD. BY: Page 3 of 3 Exhibit E t' Superior Walls Form & Form Components Part No. Description Product Group Code * 004A BOTTOM LID EXTENSION PN 004E START/STOP ANGLE PN 004C 3-7/8 TOP LID EXTENSION PN 004Z 56 x 3-7/8 TOP LID R-5 005BF 40' x 8'2" MAIN FORM Xi 005BFA 20' x 8'2" MAIN FORM Xi 005BG 40' x 10' MAIN FORM Xi 005BH 40' x 9' MAIN FORM Xi 005BI 40' x 4' MAIN FORM Xi 005BM 40' x 4'8" MAIN FORM Xi 005CA ADJUSTABLE FORMS Xi 005GE 40' x 4' MAIN FORM R-5 0050F 40' x 8' 2" MAIN FORM R-5 005GG 40' x 9' MAIN FORM R-5 005GH 40' x 10' MAIN FORM R-5 005G1 40' x 4'8" MAIN FORM R-5 005JD TOP LID R-5 005JE BOTTOM LID PN 005J25 1/8 x 2 J -HOOK PN 005X63 3/8 x 17-7/8 CR SHAFT PN 005X63A 3/8 x 18 CR SHAFT PN 006A BOTTOM CALIBRATION PN 0068 TOP CALIBRATION PN SWA DOC 42-2295 9-29-2008 Page 1 of 12 Exhibit E Part No. Description Product Group Code * 007 STUD LOCATOR Xi 009B I/C FORM PLUG Xi 010A MAIN FORM FOOT ADJUSTABLE PN 010AB MAIN FOOT LOCK PLATE PN O10B ADJUSTABLE FORM JACK Xi O10D MAIN FORM FOOT PN 012A 8" GARAGE SILL LID R-5 012AB 8" GARAGE SILL LID Xi 012B 3-7/8" GARAGE SILL EXTENSION PN 0121 4'8" INSIDE CORNER R-5 012L 10' GARAGE SILL ADAPTER R-5 012LA 10' GARAGE SILL ADAPTER Xi 012ZA 56" GARAGE SILL ADAPTER 10' R-5 014A 16 GA x 4' ADJUSTABLE R-5 014B 16 GA x 2' ADJUSTABLE R-5 014H 4' INSULATION SUPPORT R-5 014K 10' INSULATION SUPPORT R-5 014L 8' INSULATION SUPPORT R-5 014M 9' INSULATION SUPPORT R-5 015A 4' WINDOW SUPPORT PN 015BA 8'2" WINDOW SUPPORT PN 015CA 9' WINDOW SUPPORT PN 015DA 10' WINDOW SUPPORT PN 015E SHIM CLIP PN SWA DOC 42-2295 9-29-2008 Page 2 of 12 Exhibit E Part No. Description Product Group Code * 015F ADJUSTABLE FORM WINDOW SUPPORT PN 016 PACKING STAND PN 016E TOP PACKING STAND Xi 0160 CLIP -ON PACKING STAND Xi 016E SLOPE SCREW -DOWN PACKING PN 016F SQUARE SCREW -DOWN PACKING PN 016G WINDOW PACKING STAND PN 020E LEFT POLY GASKET R-5 020E RIGHT POLY GASKET R-5 023E TOP STUD DIVIDER R-5 023E BOTTOM STUD DIVIDER R-5 023G STUD DIVIDER BOTTOM Xi 0298 10' TRANSITIONAL - 8'2" LEDGE R-5 029BA 10' TRANSITIONAL - 82" LEDGE Xi 0290 9' TRANSITIONAL - 8'2" LEDGE R-5 029CA 9' TRANSITIONAL - 8'2" LEDGE Xi 029D 10' TRANSITIONAL - 9' LEDGE R-5 029DA 10' TRANSITIONAL - 9' LEDGE Xi 030E 4' ADJUSTABLE CORNER PN 030F 82" ADJUSTABLE CORNER PN 030G 9' ADJUSTABLE CORNER PN 030H 10' ADJUSTABLE CORNER PN 032A 2' STRAIGHT END - 10" Xi 032E 4' BUTT JOINT R-5 SWA DOC 42-2295 9-29-2008 Page 3 of 12 Exhibit E Part No. Description Product Group Code * 0320 4'8" BUTT JOINT R-5 032F 8'2" BUTT JOINT R-5 032G 9' BUTT JOINT R-5 032H 10' BUTT JOINT R-5 032K 8'2" STRAIGHT END - 10" Xi 032KA 8'2" STRAIGHT END - 4.25" Xi 032L 9' STRAIGHT END - 10" Xi 032LA 9' STRAIGHT END - 4.25" Xi 032M 10' STRAIGHT END - 10" Xi 032MA 10' STRAIGHT END - 4.25" Xi 032N 4' STRAIGHT END - 10" Xi 032NA 4' STRAIGHT END - 4.25" Xi 032P 4'8" STRAIGHT END - 10" Xi 032PA 4'8" STRAIGHT END - 4.25" Xi 033E 4' SPACER PLATE PN, 033D 4'8" SPACER PLATE PN 033F 8'2" SPACER PLATE PN 033G 9' SPACER PLATE PN 033H 10' SPACER PLATE PN 034BA 4' BEAM PANEL DIVIDER PN 034CA 4'8" BEAM PANEL DIVIDER PN 034FA 8'2" BEAM PANEL DIVIDER PN 034GA 9' BEAM PANEL DIVIDER PN 034HA 10' BEAM PANEL DIVIDER PN SWA DOC 42-2295 9-29-2008 Page 4 of 12 Exhibit E Part No. Description Product Group Code * 035BB 4' PANEL DIVIDER R-5 035BC 4' START PANEL DIVIDER R-5 035BD 4' STOP PANEL DIVIDER R-5 035CB 4'8" PANEL DIVIDER R-5 035CC 4'8" START PANEL DIVIDER R-5 035CD 4'8" STOP PANEL DIVIDER R-5 035CJ 4'16" GS PANEL DIVIDER R-5 035DA 48" GS PANEL DIVIDER R-5 035FB 8'2" PANEL DIVIDER R-5 035FC 8'2" START PANEL DIVIDER R-5 035FD 8'2" STOP PANEL DIVIDER R-5 035FE 8'2" ALUMINUM PANEL DIVIDER R-5 035GB 9' PANEL DIVIDER R-5 035GC 9' START PANEL DIVIDER R-5 035GD 9' STOP PANEL DIVIDER R-5 035GE 9' ALUMINUM PANEL DIVIDER R-5 035HB 10' PANEL DIVIDER R-5 035HC 10' START PANEL DIVIDER R-5 035HD 10' STOP PANEL DIVIDER R-5 035HE 10 ALUMINUM PANEL DIVIDER R-5 035JA 4' PANEL DIVIDER Xi 035JB 4'8" PANEL DIVIDER Xi 035JC 82" START PANEL DIVIDER Xi 035JD 9' START PANEL DIVIDER Xi SWA DOC 42-2295 9-29-2008 Page 5 of 12 Exhibit E Part No. Description Product Group Code * 035JE 10' START PANEL DIVIDER Xi 035JF 4' STOP PANEL DIVIDER Xi 035JH 8'2" STOP PANEL DIVIDER Xi 035J1 9' STOP PANEL DIVIDER Xi 035JJ 10' STOP PANEL DIVIDER Xi 035JK 4' START PANEL DIVIDER Xi 035JL 4'8" START PANEL DIVIDER Xi 035JM 4'8" STOP PANEL DIVIDER Xi 035JN 2' PANEL DIVIDER Xi 035K 8'2" PANEL DIVIDER Xi 035L 9' PANEL DIVIDER Xi 035M 10' PANEL DIVIDER Xi 037AB 8'2" FLAT/INVRT 45 CORNER PN 037AC 9' FLAT/INVERT 45 CORNER PN 037AD 10' FLAT/INVERT 45 CORNER PN 037AE 4' FLAT/INVERT 45 CORNER PN 037BA 4' 45° 0/S CORNER R-5 037BB 4' START 45° 0/5 CORNER R-5 037BC 4' STOP 45° 0/S CORNER R-5 037CA 4'8" 45° 0/S CORNER R-5 037C8 4'8" START 45° 0/S CORNER R-5 037CC 4'8" STOP 45° 0/S CORNER R-5 037CD 4'16" 45° 0/S CORNER R-5 037FA 8'2" 45° 0/S CORNER R-5 SWA DOC 42-2295 9-29-2008 Page 6 of 12 Exhibit E Part No. Description Product Group Code * 037FB 8'2" START 45° 0/S CORNER R-5 037FC 8'2" STOP 45° 0/5 CORNER R-5 037GA 9' 45° 0/S CORNER R-5 037GB 9' 45° START 0/S CORNER R-5 037GC 9' STOP 45° 0/S CORNER R-5 037HA 10' 45° 0/S CORNER R-5 037HB 10' START 45° 0/S CORNER R-5 037HC 10' STOP 45° 0/S CORNER R-5 037JA 4' 45° CORNER Xi 037JB 4'8" 45° CORNER Xi 037JC 4' 45° START CORNER Xi 037JD 4' 45° STOP CORNER Xi 037JE 4'8" START 45° CORNER Xi 037JF 4'8" STOP 45° CORNER Xi 037JG 2' 45° CORNER Xi 037JJ 48" 45 CORNER Xi 8" DROP Xi 037JK 48" STOP 45° CORNER Xi 8" DROP Xi 037JL 48" START 45° CORNER Xi 8" DROP Xi 037K 8'2" 45° CORNER Xi 037KL 8'2" START 45° CORNER Xi 037KR 8'2" STOP 45° CORNER Xi 037L 9' 45° CORNER Xi 037LL 9' START 45° CORNER Xi 037LR 9' STOP 45° CORNER Xi SWA DOC 42-2295 9-29-2008 Page 7 of 12 Exhibit E Part No. Description Product Group Code * 037M 10' 45° CORNER Xi 037ML 10' START 45° CORNER Xi 037MR 10' STOP 45 CORNER Xi 038D 4' INSIDE CORNER R-5 038DB 4'16" INSIDE CORNER R-5 038E 8'2" INSIDE CORNER R-5 038G 9' INSIDE CORNER R-5 0381 10' INSIDE CORNER R-5 039BA 4' 22.5° OUTSIDE CORNER R-5 039CA 4'8" 22.5° OUTSIDE CORNER R-5 039CB 416" 22.5° OUTSIDE CORNER R-5 039FA 8'2" 22.5° OUTSIDE CORNER R-5 039GA 9' 22.5° OUTSIDE CORNER R-5 039HA 10' 22.5° OUTSIDE CORNER R-5 039JA FLAT CORNER CLAMP PN 039JB INVERTED CORNER CLAMP PN 039JD 8'2" 22.5° FLAT/INVRT PN 039JE 9' 22.5° FLAT/INVERT CORNER PN 039JF 10' 22.5° FLAT/INVERT CORNER PN 039J1 4' 22.5° FLAT/INVRT PN 039N 4' 22.5° CORNER Xi 039NB 2' 22.5° CORNER Xi 039P 8'2" 22.5° CORNER Xi 039Q 9' 22.5° CORNER Xi SWA DOC 42-2295 9-29-2008 Page 8 of 12 Exhibit E Part No. Description Product Group Code * 039R 10' 22.5° CORNER Xi 040B 4' INSIDE CORNER 45° Xi 040F 8'2" INSIDE CORNER 45° Xi 040G 9' INSIDE CORNER 45° Xi 040H 10' INSIDE CORNER 45° Xi 044A STUD CARRIER R-5 046E STUD EXTRACTOR W/FRAME R-5 048D 6" STUD BLOCKING R-5 048E 53" STUD FORM BLOCKING R-5 048F STUD BLOCKING SUPPORT R-5 048G 17" STUD BLOCKING R-5 50 NAIL HOLDER R-5 052A07 STUD END WEDGE R-5 053C BEAM POCKET STUD FORM 2000 R-5 053D 8' STUD FORM 2002 R-5 053E 9' STUD FORM 2002 R-5 053FG STUD FORM LEGS R-5 053L 4' STUD FORM SOLID BOTTOM R-5 053M 10' STUD FORM 2002 R-5 068D 9'1" GARAGE DOOR SILL PN 068E 36-112" GARAGE DOOR SILL PN 068F 8'1" GARAGE SILL DOOR PN 068G GARAGE SILL DOOR 32-1/2" R-5 075A 24" LOLLY COLUMN PAD FORM PN SWA DOC 42-2295 9-29-2008 Page 9 of 12 Exhibit E Part No. Description Product Group Code * 075E 36" LOLLY COLUMN PN 075BA 36" REBAR JIG PN 075C 28" ROUND LOLLY COLUMN PAD PN 075CA 28" ROUND REBAR JIG PN 088 4"x 20" BRICK SUPPORT LEDGE PN 088A 8' BRICK LEDGE PN 088E 4' BRICK LEDGE PN 088C 4" BRICK LEDGE DIVIDER PN 088D 6" BRICK LEDGE DIVIDER PN 088E 10' Brick Ledge PN 088F BRICK LEDGE SUPPORT PN 088FB BRICK LEDGE U -LOCK PN 088GA 6 x 20 SUPPORT LEDGE PN 088HA 4 x 20 SUPPORT LEDGE PN 088JA 90° BRICK CORNER SUPPORT FORM PN 103AB COIL LOOP INSERT MAGNET PN 104C BOLTING PLUG PN 104CD BOLT PLUG LONG - 6" PN 104CF TOP BOLT PLUG PN 104CG BOLT PLUG SMALL PN 104F BOLT PLUG PLATE PN 104FA BOLT PLUG PLATE - 45° Xi 104FB BOLT PLUG PLATE - 22.5° Xi 104FC BOLT PLUG PLATE - 45° R-5 SWA DOC 42-2295 9-29-2008 Page 10 of 12 Exhibit E Part No. Description Product Group Code * 104FD BOLT PLUG PLATE - 22.5° R-5 104FE BOLT PLUG PLATE - SMALL PROFILE PN 104LL LEFT FACE BOLTING - 45° PN 104LR RIGHT FACE BOLTING - 45° PN 104ML LEFT FACE BOLTING - 22.5° PN 104MR RIGHT FACE BOLTING - 22.5° 1 PN 104PB ALTERNATE PANEL DIVIDER COIL LOCATOR PN 111C MAGNETIC RECESS PLUG PN 111 CA PIN GASKET PN 118G BEAM POCKET MOLD R-5 131A TAB BENDING MACHINE Xi 131 D STUD HOLE TEMPLATE Xi 135C PLY BRACING GALVANIZED Xi 135CA ADJUSTABLE PLY BRACING Xi 138A TOP COIL LOOP LOCATOR PN 138E BOTTOM COIL LOCATOR Xi 138C BOTTOM COIL LOCATOR R-5 139A 45° BOND BEAM TEMPLATE LH Xi 139B 45° BOND BEAM TEMPLATE RH Xi 139C 22.5° BOND BEAM TEMPLATE RH Xi 139D 22.5° BOND BEAM TEMPLATE LH Xi 164A BOMAN KEMP 4036 BUCK FRAME PN 164E BOMAN KEMP 4040 BUCK FRAME PN 164C BOMAN KEMP 3020 BUCK FRAME PN SWA DOC 42-2295 9-29-2008 Page 11 of 12 Exhibit E Part No. Description Product Group Code * 164D CAPITAL 4040 BUCK FRAME PN 164E WINDOW WELL SCREW LOCATOR PN 164EA WINDOW WELL SCREW LOCATOR PN 164F WINDOW WELL SCREW LOCATOR PN 164FA WINDOW WELL SCREW LOCATOR PN * - Product Neutral parts are identified as "PN" Note — — Form & Form Components must be purchased from Superior Walls of America, Ltd., ("SWA") per Section 7.5 of the Superior Walls License Agreement and, unless otherwise authorized and approved by SWA in writing, may be used only for manufacture and production of Superior Walls Products. — SWA DOC 42-2295 9-29-2008 Page 12 of 12 Exhibit F Superior Walls Materials and Supplies Part No. Description Drawing No. Revision Rev Date Category Supplier 104A Bolting Saddle 10-03-001-001 B 06/11/08 Mfg/PN Approved Only 104GA Insulation Block 10-03-015-0001 B 05/07/08 Mf9/R-5 Open 104PC Alternate Panel Divider Bolt Plate 10-01-006-0001 B 05/16/08 Mfg/PN Open 105 Inside Corner - slot 50/box 10-01-001-0002 B 05/06/08 Installation/PN Open 105C 4"x 6" x 5/16" Angle 22/box 10-01-001-0003 B 05/06/08 Installation/PN Open 105E Wall Anchor 10-01-004-001 A 06/06/08 Installation/PN Open 105F 2-1/2" x 6" Formed Angle 10-01-001-0004 B 05/07/08 Installation/PN Open 105G Inside Corner w/round hole 10-01-001-0001 B 05/07/08 Installation/PN Open 105H I/C Install Clip - Galv. 10-01-001-0005 B 05/06/08 Installation/Xi Open 106A Shear Connector 10-03-019-0001 B 05/08/08 Mfg/R-5 Approved Only 107C SWA Superior Sealant - 10.3 oz. Tube SWA DOC 42-2205 - 09/27/07 Installation/PN Approved Only 107D SWA Superior Sealant - 20 oz. Sausage SWA DOC 42-2205- 09/27/07 Installation/PN Approved Only 108 Spreader Wire 10-03-002-0001 A 06/13/08 Mfg/Xi Open 115A 1 x 48 x 91.75" Dow Blueboard SE 25 psi 10-03-013-0002A A 05/15/08 Mfg/R-5 Approved Only 115D 1 x 48 x 101.75" Dow Blueboard SE 25 psi 10-03-013-0002D A 05/15/08 Mfg/R-5 Approved Only 115E 1 x 48 x 113.75" Dow Blueboard SE 25 psi 10-03-013-0002E A 05/15/08 Mfg/R-5 Approved Only 1151 1 x 42 x 96" Dow Utilityfit SE 15 psi 10-03-013-00021 A 05/15/08 05/08/08 Mfg/R-5 Mfg/Xi Approved Only Approved Only 115J 1.25# x 6 x 19.594" Bond Beam 10-03-012-0001 B SWA DOC 42-2285 9-29-2008 Page 1 of 4 Exhibit F Part No. Description Drawing No. Revision Rev Date Category Supplier 115JA 1.25#x4 -1/4"x42" Stud 10-03-011'0001B A 02/04/88 Mfg/Xi Approved Only 115K4 1.25#x41/4x92^ Stud w/hole 10'03f011'0001A A 02/04/08 Mfg/Xi Approved Only 115KBD 2.5x20.94x91.62^ Dow 10'03'013'0001 C 02/25/08 Mfg/Xi Approved Only 115LA 1.25#x4.26x102^ Stud w/hole 10~03'011'0001A A 02/04/08 Mfg/Xi Approved Only 115LBD 2.5 x 20.94 x 101.62" Dow 10'03'013'8001 C 02/25/08 Mfg/Xi Approved Only 115k8A 1.25#n4.25x114" Stud w/hole 10'03'011-0001A A 02/04/08 Mfg/Xi Approved Only 115MBD 2.5 x 20.94 x 113.62" Dow 10'03'013'0001 C 02/25/08 Mfg/Xi Approved Only 115MC 10' Stud Insulation - End 10'03-011'0001D A 02/84/08 Mfg/Xi Approved Only 115PND 34" Stud Insulation - Window 10'03'011'0001C A 02/04/08 Mfg/Xi Approved Only 117C Header Rebar Support 10'03'004'0001 A 06/11/08 Mfg/PN Approved Only 117O Header Rebar Wire 10'03'004'0002 A 86/11/08 Mfg/PN Approved Only 117F Xi Header Rebar Wire 10'03'004-0003 A 06/11/08 Mfg/Xi Approved Only 117G Hopper Window Header Wire 10'03'004'0004 A 06/11/08 05/07/08 Mfg/Xi Mfg/PN Approved Only Open 118D 8' Foam Beam Pocket 30/bon 10'03'016'0002 B 118E L -Shaped Beam Pocket 70/bon 10'03'016'0003 B 05/07708 Mfg/R-5 Open 118F Beam Pocket Base 51/box 10'03-016'0004 B 05/07/08 Mfg/R-5 Open 118H VC 45° Beam Pocket 10'03'016'0001 C 05/07/08 Mfg/Xi Open 119A Xi Galvanized Stud Facing - 97.75^ 10'03-010`0001 A 06/11/08 Mfg/Xi Approved Only 1198 Xi Galvanized Stud Facing - 107.75^ 10'03-010'0001 A 06/11/08 Mfg/Xi Approved Only Approved Only 119C Xi Galvanized Stud Facing - 119.75" 10'03'010'8001 A 08/11/08 Mfg/Xi ,~.... DOC 422=85 9-29-2008 Page 2 of 4 Exhibit F Part No. Description Drawing No. Revision Rev Date Category Supplier 119D Xi Galvanized Stud Facing - 47.75" 10�-010-0001 A 06/11/08 Mfg/Xi Approved Only 119E Xi Galvanized Stud Facing - 32" 10'03'010'0081 A 06/11/08 Mfg/Xi Approved Only 120A R-5 Galvanized Stud Facing Assembly - 93" 10'03'010'002 A 06/13/08 K8hz/R'5 Approved Only 120A02 R-5 Stud Facing Foam - 92.0375^ 10'03'023'0001 A 05/16/08 Mfg/R-5 Open 120A03 R-5 Galvanized Stud Facing - 93" 10'03'010'0002 A 06/13/08 NKo/R'5 Approved Only 120B R-5 Galvanized Stud Facing Assembly - 103" 10'03'010'002 A 06/13/08 Mfg/R-5 Approved Only 120602 R-5 Stud Facing Foam - 1O2.9375" 10'03'023-0001 A 05/16/88 Mfg/R-5 Open 120603 R-5 Galvanized Stud Facing - 103" 10'03'010-0002 A 08/13/08 Mfg/R'5 Approved Only 120C R-5 Galvanized Stud Facing Assembly - 116" 10'03'010'002 A 06/13/08 Mfg/R-5 Approved Only 1200O2 R-5 Stud Facing Foam - 114.9375" 10'03'023'0001 A 05/16/08 Mfg/R-5 Open 1200O3 R-5 Galvanized Stud Facing - 115" 10'03'010'0002 A 06/13/08 Mh9/R'5 Approved Only 120D R-5 Galvanized Stud Facing Assembjy - 43" _ 10'03'010'002 A 06/13/08 Mfg/R-5 Approved Only 120D02 R-5 Stud Facing Foam - 42.9375" 10'03'023'0001 A 05/16/08 Mfg/R-5 Open 120O03 R-5 Galvanized Stud Facing - 43" 10'03'010'0002 A 00/13/08 Mfg/R'5 Approved Only 120E R-5 Galv. Stud Facing Assembly - 82" 10'03'010'002 A 06/13/08 Mfg/R-5 Approved Only 120E02 R-5 Stud Facing Foam - 81.0375^ 10'03'023'0801 A 05/10/08 Mfg/R-5 Open 120E03 R-5 Galvanized Stud Facing - 82" 10'03'010'0002 A 08/13/08 MN/R-5 Approved Only 132 Spreader WirefRebar Support 10'03'002'0002 A 06/13/08 Mfg/Xi Open 132B Push -In Spreader Wire 10'03'002'8003 A 06/13/08 Mfg/Xi Open 132C Double Push -In Spreader Wire 10'03'002'0004 A 06/13/08 Mfg/Xi Open SWA DOC 42-2285 9-29-2008 Page 3 of 4 Exhibit F Part No. Description Drawing No. Revision Rev Date Category Supplier 133 Panel Divider Block - Xi 10-03-015-0002 C 05/06/08 Mfg/Xi Open 134 Slab Connector 10-03-009-0001 B 05/08/08 Mfg/PN Open 137 Chase Insulation - Molded 10-03-014-0001 A 05/12/08 Mfg/Xi Open 137A Chase Insulation / Glued 10-03-014-0002 A 05/14/08 Mfg/Xi Open 141 Rebar Support Wire - Face 10-03-003-0001 A 06/13/08 Mfg/Xi Open 141B Triple Rebar Face Wire 10-03-003-0002 A 06/13/08 Mfg/Xi Open 150A Stud Hanger - G-185 10-03-021-0001 A 05/16/08 Mfg/R-5 Open 151A Sill Tie - G-185 10-03-020-0001 A 06/09/08 Mfg/R-5 Open 152B 17" Framing Strap - G-185 10-01-002-0001A A 05/15/08 Installation/PN Open 153A Joist Strap w/Nails - G-185 10-01-003-0001 A 06/13/08 Installation/PN Open 165A 1-1/2" x 9ga Joist Hanger Nail - galvanized 10-13-008-0001 A 05/28/08 Installation/PN Open 461.00 See SW Builder Guideline Booklet (MAN 42-9000) 10-13-001-0016 A 05/15/08 Installation/PN Open Please note that Materials and Supplies designated (1) purchased from suppliers that have been approved 5.14 of the Superior Walls License Agreement Licensee has previously been approved by Superior 7.5 of the License Agreement. The Materials and those items from any supplier as long as those ArrPHen Note Only" means that these items must be either by Superior Walls of America pursuant to Section by the Licensee who is using them, provided that the to manufacture these items pursuant to Section as "Open" means that the Licensee can use and specifications of Superior Walls of above as "Approved for these items or (2) manufactured Walls of America Supplies designated items meet the standards SWA DOC 42-2285 9-29-2008 Page 4 of 4 Exhibit G Superior Walls SUBCONTRACTOR (Seller/Installer) SALES, TRANSPORTATION AND INSTALLATION CONSENT AGREEMENT AGREEMENT made by and between SUPERIOR WALLS OF AMERICA, LTD., a Pennsylvania corporation ("Licensor"), and Advanced Concrete Systems, Inc. of 55 Advanced Lane, Middleburg, PA 17842 ("Licensee"), effective as of Licensor's execution of this Agreement. WITNESSETH: |. The parties hereto have previously entered into a SUPERIOR WALLS License Agreement dated '2O(the "License Aoroemant"). wherein Licensee agreed to operate a Licensed SUPERIOR WALLS business at the location(s) specified in the License Agreement in accordance with methods and procedures approved and prescribed for the SUPERIOR WALLS System and to menuhooture, sell, transport and install SUPERIOR WALLS System products in conformance with Licensors standards and specifications of quality and workmanship and pursuant to the SUPERIOR WALLS System as currently prescribed and as may be revised in the future from time to time by Licensor, and U. Licensee desires, and requests Licensor's consent and approval, to engage the services of a qualified independent contractor (hereinafter referred to as "Subcontractor"), to be trained to sell, transport and install SUPERIOR WALLS System products sold and manufactured by Licensee principally within Licensee's area of primary responsibility under the License Agreement, as assigned by Licensee. Ui The term of this Agreement shall be the time remaining in the initial term of the License Agreement or any extension(s) thereof, between Licensor and Licensee. The terms and conditions thereto may be revised by Licensor from time to time upon written notice of Licensor to Licensee. In the event the License Agreement shall be terminated, this agreement shall terminate simultaneously. IV. Licensee shall owe Licensor for any and all sales of SUPERIOR WALLS System products made by Subcontractor to any person, party, and/or entity as set forth in this Agreement, royalties due in the amount of four percent (4%) assessed on the gross selling price, less sales tax payable by Licensee or Licensor in the manner prescribed in the License Agreement between the parties. V. Licensee and Subcontractor shall agree as to the terms and conditions of Subcontractor compensation as to amounts acceptable and agreeable between Licensee and Subcontractor without notice to nor review by Licensor, which shall be the sole and exclusive responsibility of Licensee to Subcontractor and which shall specifically not involve Licensor in any way whatsoever. VIThis Agreement and the INDEPENDENT CONTRACTOR (Seller/Installer) AGREEMENT FOR SALES, TRANSPORTATION AND INSTALLATION OF SUPERIOR WALLS PRODUCTS (attached hereto as Exhibit A) documents are incorporated in the License Agreement. VII. Licensee will immediately cancel all installation work with Subcontractor upon written notice from Licensor to Licensee that an acor acts of Subcontractor have, or are likely to have, injurious effect(s) to the reputation of Lioenaor. Licensee or the SUPERIOR WALLS System or name, same to be interpreted in the sole and exclusive discretion of Licensor. Form 42-032 (Subcontractor-Seller/Installer Sales, Transportation & Installation Consent Agreement) 9-292008 Page 1 of 9 VIII. A default of this Agreement and/or the License Agreement between Licensor and Licensee shall terminate this Agreement, the INDEPENDENT CONTRACTOR (Seller/Installer) AGREEMENT FOR GALES, TRANSPORTATION AND INSTALLATION OF SUPERIOR WALLS PRDDUCTS, and all previously -executed Independent Contractor (Seller/Installer) Agreements authorizing certain previously -approved Subcontractors of Licensee to sell, transport and install on behalf of Licensee, unless Licensor waives the same or any of the same by specific written exception. However, the affirmative obligations of Licensee and/or Subcontractor as to monetary obligations, performance, confidentiality, and covenant not to compete shall remain in full force and effect and shall survive termination of this Agreement in every respect whatsoever. Licensee acknowledges and agrees that Licensor shall have the right, but not the ob|igetion, to enforce Subcontractor's covenant not to compete described in Section K of the INDEPENDENT CONTRACTOR (Seller/Installer) AGREEMENT FOR SALES, TRANSPORTATION AND INSTALLATION OF SUPERIOR WALLS PRODUCTS. IX. A default of any of the provisions of this Agreemenby Licensee shall be also a cross- dehauh of the terms and conditions of the License Agreement between Licensor and Lionnoeg, the INDEPENDENT CONTRACTOR (Seller/Installer) AGREEMENT FOR SALES, TRANSPORTATION AND INSTALLATION OF SUPERIOR WALLS PRODUCTS, and all previously -executed Independent Contractor (Seller/Installer) Agreements in effect, unless Licensor waives the same by specific written exception. In the event Licensor takes any action or commences any legal proceedings against Licensee and/or Subcontractor to enforce any provision of this Agreement or the INDEPENDENT CONTRACTOR (Seller/Installer) AGREEMENT FOR SALES, TRANSPORTATION AND INSTALLATION OF SUPERIOR WALLS PRODUCTS, Licensor shall be entitled to neoover, in addition to its damages and remedies sought, all fees, oosto, expenses and attorney fees of Licensor thereby incurred. If Licensee takes any action or commences any proceeding against Licensor arising under this Agreement and does not prevail therein, Licensor shall be entitled to recover from Licensee all fees, costs, expenses and attorney fees of Licensor thereby incurred. X. Licensee agrees to actively and consistently monitor Subcontractor's activities under the INDEPENDENT CONTRACTOR (Seller/installer) AGREEMENT FOR SALES, TRANSPORTATION AND INSTALLATION OF SUPERIOR WALLS PRODUCTS and to enforce Subcontractor's obligations under that Agreement. Licensee shall promptly notify Licensor in writing of all instances in which Licensee finds that Subcontractor has failed to meet or conform to the quality standards and specifications required by Licensor or Licensee and of all customer complaints pertaining to SUPERIOR WALLS installations performed by Subcontractor. Licensee shall cooperate fully with Licensor or its representative in making on-site inspections of SUPERIOR WALLS installation work performed by Subcontractor. XI. If any provision of this Agreement shall be invalid or unenforceable, either in its entirety or partially or because of its application to particular circumstances, such provision shall, by mutual intention herein expressed by the parties haoto, be deemed modified to the minimum extent necessary to render such provision valid or applicable or to be eliminated from this Agreement, as vequired, and this Agreement shall be construed and enforced as if such provision had been originally so modified or eliminated. In the event that total or partial invalidity or unenforceability of any provision of this Agreement exists only with respect to the laws of a particular jurisdiction, this section shall apply only to the extent that the laws of such jurisdiction are controlling. XII. This Agreement shall be interpreted and governed by the laws of the Commonwealth of Pennsylvania, notwithstanding any conflict of laws rules. Any dispute arising under this Agreement, including the oonahuction, interpretation and enforcement of this Agreement, shall be adjudicated exclusively in the state or federal courts sitting or having jurisdiction in Harrisburg or Philadelphia, PA. The parties hereby waive all questions of personal jurisdiction and venue for the purpose of carrying out this provision. XIII. This Agreement is not assignable by Licensee without the prior written consent of Licensor. Form 42-032 Sales, Transportation & Installation ConsenAgreement) 9-29-2008 Page 2 of 9 XIV. Licensor is willing to give its consent and approval to Licensee's engagement of the following Subcontractor: for the purposes hereinabove delineated and upon the execution of the INDEPENDENT CONTRACTOR (Seller/Installer) AGREEMENT FOR SALES, TRANSPORTATION AND INSTALLATION OF SUPERIOR WALLS PRODUCTS. LICENSEE SUPERIOR WALLS OF AMERICA, LTD ADVANCED CONCRETE SYSTEMS, INC. By: By: Date: Date: Form 42-032 (Subcontractor-Seller/Installer Sales, Transportation & Installation Consent Agreement) 9-29-2008 Page 3 of 9 EXHIBIT A INDEPENDENT CONTRACTOR (Seller/Installer) AGREEMENT���TRANSPORTATION FOR SALES, . .._~.~~. ~�,..�...~~.. AND "..~°"_.~~~~�".��.~ OF SUPERIOR WALLS PRODUCTS AGREEMENT made by and between of ("Licensee") and . an Independent Contractor, of ("Subcontractor"), and Superior Walls of America, Ltd. ("Licensor"). WITNESSETH: WHEREAS, Licensee is a party to a License Agreement with SUPERIOR WALLS OF AMERICA, LTD., a Pennsylvania corporation (the "Licensor"),, whereunder Licensee is licensed to sell, manufacture, transport and install SUPERIOR WALLS System products in strict accordance with the Licensor's standards and specifications of quality and workmanship and pursuant to the SUPERIOR WALLS System as currently prescribed and as revised in the future, and WHEREAS, Licensee desires to non -exclusively engage the services of a trained and qualified Subcontractor to sell, transport and install SUPERIOR WALLS System products manufactured by Licensee within the designated territory of obtained the Licensor's consent to do so, and ("Tenbon/1 and has WHEREAS, Subcontractor desires to parfVnn, non -exclusively, the sales, transportation and installation services of the SUPERIOR WALLS System products manufactured by Licensee in the capacity of Subcontractor of Licensee in the Territory, pursuant to the terms and conditions of this INDEPENDENT CONTRACTOR (Seller/Installer) AGREEMENT FOR SALES, TRANSPORTATION AND INSTALLATION OF SUPERIOR WALLS PRODUCTS, NOW, THEREFORE, in consideration of the foregoing and the mutual promises herein set forth, the Licensee and Subcontractor hereby agree as follows: A. AUTHORITY. Subcontractor is authorized only to perform sa|en, transportation and installation work in the Territory, and is only authorized to enter into agreements for the sale of SUPERIOR WALLS System products to be installed in the Territory ("Sales Agreements"). Licensee may change the geographic area of the Tenhory, whether by increase or decrease, at any time by written notice to Subcontractor, and if dooroaaed. Subcontractor shall comply with any applicable terms of Section T below. Subcontractor may enter into Sales Agreements with potential and actual purchasers of SUPERIOR WALLS System products and services ("Customers"). Any and all payments by said Customers shall be sent to, and all checks made payable to, Subcontractor. Subcontractor shall prepay Licensee for any SUPERIOR WALLS System products purchased from Liceneee, including all applicable royalty amounts, upon delivery by Licensee or pick-up by Subcontractor of such SUPERIOR WALLS System products. Subcontractor is not authorized to enter into any other agreement of any nature, for or on behalf of Licensee or Licensor. This INDEPENDENT CONTRACTOR (Seller/Installer) AGREEMENT FOR SALES, TRANSPORTATION AND INSTALLATION OF SUPERIOR WALLS PRODUCTS must be executed by all parties hereto prior to Subcontractor making any representation to any third party that Subcontractor is authorized to perform sales, transportation, and installation work or is authorized to enter into Sales Agreements. B. TRAINING AND CERTIFICATION. Prior to installing SUPERIOR WALLS System products, at least two of Subcontractor's personnel who will be supervising the installations, must have Form 42-032 Sales, Transportation & Installation Consent Agreement) 9-29-2008 Page 4 of 9 first successfully completed (to the satisfaction of Licensee and Licensor) an installation training program conducted by Licensee, and thereafter issued an Installation Certification by Licensor. C. INSTALLATION SUPERVISION. Subcontractor shall not install any SUPERIOR WALLS System products at any time except under the direct "on-site" supervision of a person who has successfully completed the Licensor -approved training program and has been so certified by Licensor. Installation Certification must be renewed periodically, as specified by Licensor, to remain current and valid. D. QUALITY ASSURANCE INSPECTIONS. Subcontractor acknowledges and agrees tha the highest quality of Subcontractor's workmanship is required in all instances of installation of the product and is the essence of this Agreement with Licensor and Licensee which can only be achieved by Subcontractor with the direct supervision of specific details by Licensor and/or Licensee. Licensor and/or Lineneoa, or an authorized representative of either, have the unrestricted right and legal obligation to make on-site inspections of SUPERIOR WALLS installation work performed by Subcontractor from time to time and to inspect the quality of workmanship achieved by Subcontractor and to require to their satisfaction strict and full compliance with such prescribed standards and specifications of workmanship required by Licensor and/or Licensee. Licensee has the right to withhold payment to Subcontractor, until the Licensee has inspected and approved each wall system installation (based on Superior Walls specifications and tolerances). Licensee has the right to deduct from Subcontractor's payment the cost of repairs or other corrective action needed to meet Superior Walls installation specifications and Licensee's warranty. Subcontractor shall purchase from Licensee the SUPERIOR WALLS installation equipment package and all needed installation supplies. Subcontractor must perform a minimum of 2 installations a month or the equivalent of 24 installations per calendar year to maintain proficiency and retain Installation Certification. Subcontractor personnel are required to wear prescribed Superior Walls clothing when performing any Superior Walls work. Failure to wear required clothing may lead to termination of this agreement at the sole discretion of Licensor. E. EXCLUSIVITY. Subcontractor shalt sell, transport and/or install the SUPERIOR WALLS System products exclusively for and under contract with Licensee and for no other licensee or franchisee of SUPERIOR WALLS, and for no other person, party or entity without first obtaining the prior written consent of both Licensor and Licensee. F. ROYALTY COMPENSATION. For any and all sales of SUPERIOR WALLS System products made by Subcontractor to any penmn, party and/or entity as set forth in this Agnaament, royalties due and owing to Licensor by Licensee shall be a royalty amount of four percent (4%) assessed on the gross installed selling price (the price the Subcontractor receives from the customer), less sales tax. Subcontractor shall prepay Licensee for any SUPERIOR WALLS System products purchased from Licensee, including all applicable royalty amounts, upon delivery by Licensee or pick-up by Subcontractor of such SUPERIOR WALLS System products. Licensee shall include all royalty payments from Subcontractor in Licensee's monthly royalty payments and reports to Licensor. For purposes of this paragraph, "use tax" is not consider to be 'sales tax". G. LICENSES AND PERMITS. Subcontractor will be responsible for obtaining any and all required permits, licenses and authorizations required of Subcontractor by all applicable local laws and regulations and will not perform any SUPERIOR WALLS sales, transportation and/or installation work until the same have first been obtained and received. H. INSURANCE. Subcontractor shall maintain at all times general liability insurance and workers compensation insurance in such amounts as may be required by Licensor or Licensee from time to time specifically covering damages and injury to persons and/or property for losses arising out of, or in connection with, any act done or not done under agreement with Licensee, including, but not limited to, any and all present, past and future sales, transportation and installation. Said insurance shall be in the minimum amount of $1 000,000 per person with a per incident amount of $2,000,000, and shall expressly name Licensor and Licensee as named and endorsed additional insured parties. Subcontractor shall, Form 42-032 (Ser SaleTransportation & InstallatioConsent Agreement) 9-29-2008 Page 5 of 9 within 30 days of the signing of this Agreement, and annually thereafter, provide Licensor and Licensee with evidence that the insurance coverage required hereunder is currently in effect and shall provide Licensor and Licensee with a Certificate of Insurance showing that they both are named additional insured parties under the Guboontnaokz/a policy. Subcontractor's insurer shall give Licensor and Licensee no less than thirty (30) days written notice of intent of the insurer to cancel any policy of insurance with Subcontractor for whatever reason. Failure of Subcontractor to comply with the provisions of this Section H shall result in termination of this INDEPENDENT CONTRACTOR (Seller/Installer) AGREEMENT FOR SALES, TRANSPORTATION AND INSTALLATION OF SUPERIOR WALLS PRODUCTS at the sole and exclusive discretion of Licensor. REPORTS. Subcontractor and Subcontractor's employees agree to provide to Licensee and Licensor (1) weekly installation efficiency reports, (2) monthly reports of any and all sales and generated royalty activity, and (3) such other forms, neporta, neoonda, infnnnation, and data as Licensor and/or Licensee may reasonably request from time to time. J. CONFIDENTIALITY AND NON -DISCLOSURE. Subcontractor and Subcontractor's employees shall not disclose any proprietary information concerning the sale, manufacture, transportation and installation of the SUPERIOR WALLS System products and/or System to any person, party or entity during the term of all Subcontractor's agreements with Licensee and for a term thereafter of ten (10) years. K. COVENANT NOT TO COMPETE. Subcontractor covenants that, for a period of two (2) years after expinahon, termination of this Agreement or the last installation completed by Subcontractor for L)oonoee, whichever is later, it will not: (1) within the Territory Subcontractor was granted, (2) within the Licensee's area of primary responsibility (APR) or (3) within sixty (60) miles from the perimeter of Licensee's APR, whether as a sole prophetor, partnar, empbyao, atockho|dor, principal, agent, cuneuhent, director, officer, or in any other capacity or manner whatsoever, compete with Licensor, Licensee, or any other licensee or franchisee of Licensor; solicit any ouotnmara, clients or accounts of Licensor and/or Licensee; or engage in the manufacture, sale or promotion of goods, services, processes and products similar to those of Licensor and/or Licensee. L TERM. This INDEPENDENT CONTRACTOR (Seller/Installer) AGREEMENT FOR SALES, TRANSPORTATION AND INSTALLATION OF SUPERIOR WALLS PRODUCTS between Licensee and Subcontractor shall be for a term of one (1) year, automatically renewable for additional one (1) year periods, unless terminated by either party with sixty (60) days written notice prior to the renewal date, with such renewals not to exceed Licensee's remaining License term with Licensor or any extension(s) thereof. This INDEPENDENT CONTRACTOR (Seller/Installer) AGREEMENT FOR SALES, TRANSPORTATION AND INSTALLATION OF SUPERIOR WALLS PRODUCTS shall remain in effect until Licensor is successful in signing a new licensee to cover any of the open counties Subcontractor is servicing which will become part of the new licensee's APR. The INDEPENDENT CONTRACTOR (Seller/Installer) AGREEMENT FOR SALES, TRANSPORTATION AND INSTALLATION OF SUPERIOR WALLS PRODUCTS can be terminated by Licensor, Licensee or Subcontractor with sixty (60) days written notice, subject to Sections N, 0 and A herein. M. RELATIONSHIP OF THE PARTIES. The relationship of Licensee with Subcontractor will be one of independent contractor and not of agency, employment or partnership. Subcontractor will neither make representation nor give the impression that it is an agent or employee of Licensor or Licensee. Subcontractor shall conspicuously identify itself, its business premises, and its vehicles, and in all dealings with its Cuahumem, aupp|iens, public officials and cthere, as an independent subcontractor of Licensee, and shall place such notice of independent ownership on all forms, business cards, stationery, advertising, signs and other materials and in such fashion as Licensor may reasonably specify and require from time to time. In addition, prior to Subcontractor making any representation to any third party that Subcontractor is authorized to perform sales, transportation, and installation work or is authorized to enter into Sales Agreements, Subcontractor shall seek and receive written approval from Licensor of the name under which Subcontractor will perform such sales, transportation, and installation work and will Form 42-032 .~.~.""^=.-Selfevnstaxe Sales, Transportation &Inma��onCono�n�" A . greement) 9-29-2008 Page 6 of 9 enter into Sales Agreements. Subcontractor shall not use the Proprietary Marks (as defined in the License Agreement) or the words "Superior Walls" (I) as part of its corporate or other legal name or (ii) as part of any domain name or home page address on the /ntemet, unless authorized or required by Licensor and, if so authorized or required by L/oeneor, shall only use the Proprietary Marks or the words 'Superior Walls" in the manner specified and approved by Licensor. N. CANCELLATION/REVOCATION. The consent and approval by Licensor for a Subcontractor of Licensee may be suspended or revoked by Licensor and/or Licensee at any time upon either a finding of Licensor or Licensee of one or more of the following: that (1) Subcontractor has failed to meet the quality standards of workmanship required by its contract with Licensee; (2) Subcontractor has or has attempted to perform SUPERIOR WALLS installation work for anyone other than the Licensee without first having obtained the consent of Licensor and Licensee; (3) Subcontractor has failed to perform SUPERIOR WALLS installation work under the direct supervision of a person who has successfully completed the required training program and has been so certified by Licensor; (4) Subcontractor's certification has expired and has not been renewed by Licensor and Licensee within thirty (30) days; (5) Subcontractor has breached any term or provision of this INDEPENDENT CONTRACTOR (Seller/Installer) AGREEMENT FOR SALES, TRANSPORTATION AND INSTALLATION OF SUPERIOR WALLS PRODUCTS; or (6) any act or acts of Subcontractor have, or are likely to have, an injurious effect on the reputation of Lioennor. Licensee or the SUPERIOR WALLS System or name, same to be interpreted in the sole and exclusive discretion of Licensor and Liueneoe, or either of them. Upon receipt of written termination notice by Subcontractor, this INDEPENDENT CONTRACTOR (Seller/Installer) AGREEMENT FOR SALEG, TRANSPORTATION AND INSTALLATION OF SUPERIOR WALLS PRODUCTS shall terminate., 0. NOTICE. Any party may terminate this agreement with sixty (60) days written notice to the other parties with or without cause. P. INVALIDITY. If any provision of this INDEPENDENT CONTRACTOR (Seller/Installer) AGREEMENT FOR SALES, TRANSPORTATION AND INSTALLATION OF SUPERIOR WALLS PRODUCTS shall be invalid or unenforceable, either in its entirety or partially or because of its application to particular oin:umatamces, such provision shall, by mutual intention herein expressed by the parties hereto, be deemed modified to the minimum extent necessary to render such provision valid or applicable or to be eliminated from this INDEPENDENT CONTRACTOR (Seller/Installer) AGREEMENT FOR GALE8, TRANSPORTATION AND INSTALLATION OF SUPERIOR WALLS PRODUCTS, as nnquired, and this INDEPENDENT CONTRACTOR (Seller/Installer) AGREEMENT FOR SALES, TRANSPORTATION AND INSTALLATION OF SUPERIOR WALLS PRODUCTS shall be construed and enforced as if such provision had been originally so modified or eliminated. In the event that total or partial invalidity or unenforceability of any provision of this INDEPENDENT CONTRACTOR (Seller/Installer) AGREEMENT FOR SALEG, TRANSPORTATION AND INSTALLATION OF SUPERIOR WALLS PRODUCTS exists only with respect to the laws of a particular jurisdiction, this Section P shall apply only to the extent that the laws of such jurisdiction are controlling. O. INTERPRETATION. This INDEPENDENT CONTRACTOR (Seller/Installer) AGREEMENT FOR SALEG, TRANSPORTATION AND INSTALLATION OF SUPERIOR WALLS PRODUCTS shall be interpreted and governed by the laws of the state wherein lies the Licensee's Approved Location, notwithstanding any conflict of laws rules. Any dispute arising under this Agreement, including the construction, inkaqpretction, and enforcement of this Agnoament, shall be adjudicated exclusively in the state or federal courts sitting or having jurisdiction in or nearest to Licensee's Approved Location, and Uconoor. Licensee, and Subcontractor each irrevocably consent to the jurisdiction of such courts and each hereby waive any venue objections they may have to adjudicating disputes in such courts. R. BREACH. In the event that Subcontractor shall breach any provision(s) of this INDEPENDENT CONTRACTOR (Seller/Installer) AGREEMENT FOR SALES, TRANSPORTATION AND INSTALLATION OF SUPERIOR WALLS PRODUCTS, Licensor and/or Licensee may terminate this Form 42-032 Sales, Transportation & Installation Consent Agreement) 9-29-2008 Page 7 of 9 Agreement. Licensee, in addition to other remedies delineated in this Agreement, shall be entitled to all remedies allowed by the law, including payment of all of Licensee's attorneys' fees, costs of suit, and injunctive relief, at the sole cost and expense of Subcontractor. However, all confidentiality provisions and covenants not to compete shall remain in full force and effect and shall survive termination of this INDEPENDENT CONTRACTOR (Seller/Installer) AGREEMENT FOR SALES, TRANSPORTATION AND INSTALLATION OF SUPERIOR WALLS PRODUCTS in every respect whatsoever. S. MANUFACTURER'S WARRANTY. Subcontractor shall remain liable to purchasers of Superior Walls Products to perform or pay for (at Licensee's sole discretion) any repair or remedial work for such products in accordance with the manufacturer's vvarnsnty, regardless of whether such installation is located within the Territory at the time the obligation to perform or pay for the work under the warranty arises. T. REDUCTION OF TERRITORY. Upon the receipt of written notice from Licensor or Licensee that Licensor has assined any part of the Territory as an area of primary responsibility (APR) to another licensee or franchisee, or has designated such area as a market area or APR for Licensor, any affiliate of Lioenaor, or a third -party with which Licensor has contracted for the sale of Superior Walls Products, Subcontractor shall, within thirty (30) days of receipt of such nct|on, discontinue all solicitation and sales activity in such area. With respect to any contracts signed by both Subcontractor and third parties prior to the date of Licensor's or Licensee's notice for sales of installation of Superior Walls Products in such area, Subcontractor shall be permitted to continue the installation of such Superior Walls Products for a period not to exceed ninety (90) days from the date of such notice. During such ninety - day period, inety'dmyperiod. Subcontractor shall transfer all accounts with customers and clients in such area to the party assuming responsibility for such area, use its best efforts to cooperate with such party and provide customer lists for such area to such party. U. NON -ASSIGNABILITY. This Agreement is not assignable by Subcontractor without the prior written consent of both Licensor and Licensee. Form 42-032(Subcontractor-Seller/Installer Sales, Transportation & Installation Consent Agreement) 9-29-2008 Page 8 of 9 IN WITNESS WHEREOF, the parties hereto have executed this INDEPENDENT CONTRACTOR (Seller/Installer) AGREEMENT FOR SALES, TRANSPORTATION AND INSTALLATION OF SUPERIOR WALLS PRODUCTS, intending thereby to be legally bound, on the day and year indicated below. SUBCONTRACTOR Witness/Attest By: Printed name: Title: Date: Witness/AttestBy: Attest LICENSEE Printed name: Title: Date: LICENSOR Superior Walls of AmericaLtd. By: Printed name: Title: Date: (Superior Walls of America, Ltd. is a party to this Agreement only with respect to any applicable terms between Licensor and Licensee, and not as to the terms between Licensee and Subcontractor, though Superior Walls of 4mohoa. Ltd. is an intended third - party beneficiary of this Agreement.) hind'partybene8ciaryofdhioAQmementj Form 42-032 Sales, Transportation & Installation Consent Agreement) 9-29-2008 Page 9 of 9 Superior Walls Exhibit H SUBCONTRACTOR (Builder Is Installer) INSTALLATION CONSENT AGREEMENT AGREEMENT made by and between SUPERIOR WALLS OF AMERICA, LTD., a Pennsylvania corporation ("Licensor"), and Advanced Concrete Systems, Inc. of 55 Advanced Lane, Middleburg, PA 17842 ("Licensee"), effective as of Licensor's execution of this Agreement. WITNESSETH: |. The parties hereto have previously entered into a SUPERIOR WALLS License Agreement dated , wherein Licensee agreed to operate the Licensed SUPERIOR WALLS business at the locations(s) specified in the License Agreement in accordance with methods and procedures approved and prescribed for the SUPERIOR WALLS System and to nnanufaoture, sell, transport and install SUPERIOR WALLS System products in conformance with Licensor's standards and specifications of quality and workmanship and pursuant to the SUPERIOR WALLS System as currently prescribed and as may be revised in the future from time to time by Licensor, and U. Licensee desires, and requests Licensor's consent and approval, to engage the services of a qualified independent builder/contractor (hereinafter referred to as "Subcontractor"), to be trained to Ui The term of this Agreement shall be the time remaining in the initial term of the License Agreement or any extension(s) thereof, between Licensor and Licensee. The terms and conditions thereto may be revised by Licensor from time to time upon written notice of Licensor to Licensee. In the event the License Agreement shall be terminated, this agreement shall terminate simultaneously. IV. Licensee shall owe Licensor for any and all sales of SUPERIOR WALLS System products made by Subcontractor to any poroon, party, and/or entity as set forth in this Agrnemart, royalties due in the amount of four percent (4%) assessed on the gross installed selling price, less sales tax payable by Licensee or Licensor, in the manner prescribed in the License Agreement between the parties. V. This Agreement and the INDEPENDENT BUILDER/CONTRACTOR (Installer) AGREEMENT FOR INSTALLATION OF SUPERIOR WALLS PRODUCTS (attached hereto as Exhibit A) documents are incorporated in the License Agreement. VI. Licensee will immediately cancel all installation work with Subcontractor upon written notice from Licensor to Licensee that an acor acts of Subcontractor have, or are likely to have, injurious effect(s) to the reputation of L|oenoor. Licensee or the SUPERIOR WALLS System or name, same to be interpreted in the sole and exclusive discretion of Licensor. VII. A default of this Agreement and/or the License Agreement between Licensor and Licensee shall terminate this Agreement and all corresponding Subcontractor Installation Consent Agreements authorizing certain previously approved Subcontractors of Licensee to install on behalf of Licensee unless Licensor waives the same or any of the same by specific written exception. Hovvever, the affirmative obligations of Licensee and/or Subcontractor as to monetary obligations, performance, confidentiality and covenant not to compete shall remain in full force and effect and shall survive termination of this Agreement in every respect whatsoever. Licensee acknowledges and agrees that Form 42-031 Consent Agreement) 9-29-2008 Page 1 of 8 Licensor shall have the right, but not the obligation, to enforce Subcontractor's covenant not to compete described in Section I of the INDEPENDENT BUILDER/CONTRACTOR (Installer) AGREEMENT FOR INSTALLATION OF SUPERIOR WALLS PRODUCTS. VIII. A default of any of the provisions of this Agreement by Licensee shall be also a cross - default of the terms and conditions of the License Agreement between Licensor and Licensee and all Subcontractor Agreements in effect unless Licensor waives the same by specific written exception. In the event Licensor takes any action or commences any legal proceedings against Licensee and/or Subcontractor to enforce any provision of this Agreement, Licensor shall be entitled to recover, in addition to its damages and remedies sought; all fees, costs, expenses and attorney fees of Licensor thereby incurred. If Licensee takes any action or commences any proceeding against Licensor arising under this Agreement and does not prevail therein, Licensor shall be entitled to recover from Licensee all fees, costs, expenses and attorney fees of Licensor thereby incurred. IX. Licensee agrees to actively and consistently monitor Subcontractor's activities under the INDEPENDENT BUILDER/CONTRACTOR (Installer) AGREEMENT FOR INSTALLATION OF SUPERIOR WALLS PRODUCTS and to enforce Subcontractor's obligations under that Agreement. Licensee shall promptly notify Licensor in writing of all instances in which Licensee finds that Subcontractor has failed 10 meet or conform to the quality standards and specifications required by Licensor or Licensee and of all customer complaints pertaining to SUPERIOR WALLS installations performed by Subcontractor. Licensee shall cooperate fully with Licensor or its representative in making on-site inspections of SUPERIOR WALLS installation work performed by Subcontractor. X. If any provision of this Agreement shall be invalid or unenforceable, either in its entirety or partially or because of it application to particular circumstances, such provision shall, by mutual intention herein expressed by the parties hereto, be deemed modified to the minimum extent necessary to render such provision valid or applicable or to be eliminated from this Agreement, as required, and this Agreement shall be construed and enforced as if such provision had been originally so modified or eliminated. In the event that total or partial invalidity or unenforceability of any provision of this Agreement exists only with respect to the laws of a particular jurisdiction, this section shall apply only to the extent that the laws of such jurisdiction are controlling. XI. This Agreement shall be interpreted and governed by the laws of the Commonwealth of Pennsylvania, notwithstanding any conflict of laws rules. Any dispute arising under this Agreement, including the construction, interpretation and enforcement of this Agreement, shall be adjudicated exclusively in the state or federal courts sitting or having jurisdiction in Harrisburg or Philadelphia, PA. The parties hereby waive all questions of personal jurisdiction and venue for the purpose of carrying out this provision. XII. This Agreement is not assignable by Licensee without the prior written consent of Licensor. XIII. Licensor is willing to give its consent and approval to Licensee's engagement of the following Subcontractor: for the purposes hereinabove delineated and upon the execution of the INDEPENDENT BUILDER/CONTRACTOR (Installer) AGREEMENT FOR INSTALLATION OF SUPERIOR WALLS PRODUCTS. Form 42-031 (Subcontractor-Builder/Installer-Installation Consent Agreement) 9-29-2008 Page 2 of 8 LICENSEE SUPERIOR WALLS OF AMERICA, LTD ADVANCED CONCRETE SYSTEMS, INC. By: By: Date: Date: Form 42-031 (Subcontractor-Builder/Installer-Installation Consent Agreement) 9-29-2008 Page 3 of 8 EXHIBIT A INDEPENDENT BUILDER/CONTRACTOR (Installer) AGREEMENT���U�����UK����N�����UU����U��������UU��� FOR ..��..���.���..��.. �°. SUPERIOR WALLS PRODUCTS AGREEMENT made by and between of ("Licensee") and . an Independent Builder/Contractor, of ("Subcontractor"), and Superior Walls of America, WITNESSETH: WHEREAS, Licensee is a party to a License Agreement with SUPERIOR WALLS OF AMERICA, LTD., a Pennsylvania corporation (the "Licensor"), whereunder Licensee is licensed to sell, mmnuhycune, transport and install SUPERIOR WALLS System products in strict accordance with the Licensor's standards and specifications of quality and workmanship and pursuant to the SUPERIOR WALLS System as currently prescribed and as revised in the future, and WHEREAS, Licensee desires to non -exclusively engage the services of a trained and qualified Subcontractor to install SUPERIOR WALLS System products manufactured and sold by Licensee to Subcontractor for installation on Subcontractor's own projects, and has obtained the Licensor's consent to do so, and WHEREAS, Subcontractor desires to pedorm, non -exclusively, the installation services of the SUPERIOR WALLS System products manufactured by Licensee in the capacity of Subcontractor of Liumnaee, pursuant to the terms and conditions of this INDEPENDENT BUILDER/CONTRACTOR (Installer) AGREEMENT FOR INSTALLATION OF SUPERIOR WALLS PRODUCTS, NOW, THEREFORE, in consideration of the foregoing and the mutual promises herein set forth, the Licensee and Subcontractor hereby agree as follows: A. AUTHORITY. Subcontractor is authorized to perform installation work only, on Superior Walls System products sold to Subcontractor. Subcontractor is not authorized to enter into any other agreement of any nature, for or on behalf of Licensee or Licensor. B. TRAINING AND CERTIFICATION. Prior to installing SUPERIOR WALLS System products, at leastwo of Subcontractor's personnel who will be supervising the installations, must have first successfully completed (to the satisfaction of Licensee and Licensor) an installation training program conducted by Licensee, and thereafter issued an Installation Certification by Licensor. C. INSTALLATION SUPERVISION. Subcontractor shall not install any SUPERIOR WALLS system products at any time except under the direct supervision of a person who has successfully completed the Licensor -approved training program and has been so certified by Licensor. Installation Certification must be renewed periodically, as specified by Licensor, to remain current and valid. D. QUALiTY ASSURANCE INSPECTIONS. Subcontractor acknowledges and agrees that the highest quality of Subcontractor's workmanship is required in all instances of transportation and installation of the product and is of the essence of this Agreement with Licensor and Licensee, which can only be achieved by Subcontractor with the direct supervision of specific details by Licensee. Licensor and/or Licensee, or an authorized representative of either, have the unrestricted right to make on-site Form 42-031 Consent Agreement) 8-29-2008 Page 4 of 8 inspections of SUPERIOR WALLS installation work performed by Subcontractor from time to time and to inspect the quality of workmanship achieved by Subcontractor and to require to their satisfaction strict and full compliance with such prescribed standards and specifications of workmanship required by Licensor and/0r Licensee. Subcontractor shall purchase from Licensee the SUPERIOR WALLS installation equipment package and all needed installation supplies. Subcontractor shall be responsible for resolution of problems or errors that may occur as a result of installations which are not done using the prescribed standards and specifications of workmanship required by Licensor and/or Licensee. Subcontractor shall be responsible for the prompt and timely resolution of problems. E. EXCLUSIVITY. Subcontractor shall install the SUPERIOR WALLS System products exclusively for and under contract with Licensee and for no other licensee or franchisee of SUPERIOR VVALL8, and for no other pemon, party or entity without first obtaining the prior written consent of both Licensor and Licensee. F. LICENSES AND PERMITS. Subcontractor will be responsible for obtaining any and all required permits, licenses and authorizations required of Subcontractor by all applicable local laws and regulations and will not perform any SUPERIOR WALLS installation work until the same have first been obtained and received. G. INSURANCE. Subcontractor shall maintain at all times general liability and workers compensation insurance in such amounts as may be required by Licensor or Licensee from time to time specifically covering damages and injury to persons and/or property for losses arising out of, or in connection with, any acdone or not done under this Agreement with Lioenaee, ino|uding, but not limited to, any and all praeent, past and future installations. Said insurance shall be in the minimum amount of $1,000,000 per person with a per incident amount of $2,000,000, and shall name Licensor and Licensee as named and endorsed additional insured parties. Subcontractor shall, within 30 days of the signing of this Agreement, and annually thereafter, provide Licensor and Licensee with evidence that the insurance coverage required hereunder is currently in effect and shall provide Licensor and Licensee with a Certificate of Insurance showing that they both are named additional insured parties under the Subcontractor's policy. Subcontractor's insurer shall give Licensor and Licensee no less than thirty (30) days written notice of intent of the insurer to cancel any policy of insurance with Subcontractor for whatever reason. Failure of Subcontractor to comply with the provisions of this Section G shall result in termination of this Agreement at the sole and exclusive discretion of Licensor. H. CONFIDENTIALITY AND NON -DISCLOSURE. Subcontractor and Subcontractor's employees shall not disclose any proprietary information concerning the sale, manuhyctuns, transportation and installation of the SUPERIOR WALLS System products and/or System to any person, party or entity during the term of all Subcontractor's agreements with Licensee and for a term thereafter of ten (10) years. i COVENANT NOT TO COMPETE. Subcontractor covenants that, for a period of two (2) years after expiration, termination of this Agreement or the last installation completed by Subcontractor for Licensee, whichever is |star, it will not: (1) at or within 10 miles from any location where Subcontractor has installed Superior Walls, (2) within the Licensee's area of primary responsibility (APR) or (3) within sixty (60) miles from the perimeter of Licensee's APR, whether as a sole prophahor, pmrtner, omp|oyae, stockholder, principal, agent, consultant, director, officer, or in any other capacity or manner whatsoever, compete with Liunnaor. Licennee, or any other licensee or franchisee of Licensor; solicit any customers, clients or accounts of Licensor and/or Licensee; or engage in the manufaciune, sale or promotion of goods, services, processes and products similar to those of Licensor and/or Licensee J. TERM. This INDEPENDENT BUILDER/CONTRACTOR (Installer) AGREEMENT FOR INSTALLATION OF SUPERIOR WALLS PRODUCTS between Licensee and Subcontractor shall be for a term of one (1) year, automatically renewable for additional one (1) year periods, unless terminated by either party with sixty (60) days written notice prior to the renewal date, with such renewals not to exceed Licensee's remaining License term with Licensor or any extension(s) thereof. The INDEPENDENT BUILDER/CONTRACTOR (Installer) AGREEMENT FOR INSTALLATION OF SUPERIOR WALLS PRODUCTS can be terminated by Licensor, Licensee or Subcontractor with sixty (60) days written notice, subject to Sections L, M and P herein. Form 42-031 (Subcontractor-Builder/Installer-Installation Consent Agreement) 9-29-2008 Page 5 of 8 K. RELATIONSHIP OF THE PARTIES. The relationship of Licensee with Subcontractor will be one of independent contractor and not of agency, employment or partnership. Subcontractor will neither make representation nor give the impression that it is an agent or employee of Licensor or Licensee. Subcontractor shall not use the Proprietary Marks or the words "Superior Walls" as part of its corporate or other legal name unless authorized in writing or required by Licensor and, if so authorized or required by Licensor, shall only use the Proprietary Marks or the words "Superior Walls" in the manner specified and approved in writing by Licensor. L. CANCELLATION/REVOCATION. The requisite consent and approval by Licensor for a Subcontractor of Licensee may be suspended or revoked by Licensor and/or Licensee at any time upon either a finding of Licensor or Licensee of one or more of the following: that (1) Subcontractor has failed to meet the quality standards of workmanship required by its contract with Licensee; (2) Subcontractor has or has attempted to perform SUPERIOR WALLS installation work for anyone other than the Licensee without first having obtained the consent of Licensor and Licensee; (3) Subcontractor has failed to perform SUPERIOR WALLS installation work under the direct supervision of a person who has successfully completed the required training program and has been so certified by Licensor; (4) Subcontractor's certification has expired and has not been renewed by Licensor and Licensee within thirty (30) days; (5) Subcontractor has breached any term or provision of this INDEPENDENT BUILDER/CONTRACTOR (Installer) AGREEMENT FOR INSTALLATION OF SUPERIOR WALLS PRODUCTS; or (6) any act or acts of Subcontractor have, or are likely to have, an injurious effect on the reputation of Licensor, Licensee or the SUPERIOR WALLS System or name, same to be interpreted in the sole and exclusive discretion of Licensor and Licensee, or either of them. Upon receipt of written notice by Subcontractor, this INDEPENDENT BUILDER/CONTRACTOR ((Installer) AGREEMENT FOR INSTALLATION OF SUPERIOR WALLS PRODUCTS shall terminate. M. NOTICE. Any party can terminate this agreement upon sixty (60) days written notice to the other parties with or without cause. N. INVALIDITY. If any provision of this Agreement shall be invalid or unenforceable, either in its entirety or partially or because of its application to particular circumstances, such provision shall, by mutual intention herein expressed by the parties hereto, be deemed modified to the minimum extent necessary to render such provision valid or applicable or to be eliminated from this Agreement, as required, and this Agreement shall be construed and enforced as if such provision had been originally so modified or eliminated. In the event that total or partial invalidity or unenforceability of any provision of this Agreement exists only with respect to the laws of a particular jurisdiction, this Section shall apply only to the extent that the laws of such jurisdiction are controlling. O. INTERPRETATION. This Agreement shall be interpreted and governed by the laws of the state wherein lies the Licensee's Approved Location, notwithstanding any conflict of laws rules. Any dispute arising under this Agreement, including the construction, interpretation, and enforcement of this agreement, shall be adjudicated exclusively in the state or federal courts sitting or having jurisdiction in or nearest to Licensee's Approved Location, and Licensor, Licensee, and Subcontractor each irrevocably consent to the jurisdiction of such courts and each hereby waive any venue objections they may have to adjudicating disputes in such courts. P. BREACH. In the event that Subcontractor shall breach any provision(s) of this Agreement, Licensor and/or Licensee may terminate this Agreement. Licensee, in addition to other remedies delineated in this Agreement, shall be entitled to all remedies allowed by the law, including payment of all of Licensee's attorneys' fees, costs of suit, and injunctive relief, at the sole cost and expense of Subcontractor. However, all confidentiality provisions and covenants not to compete shall remain in full force and effect and shall survive termination of this Agreement. Q. MANUFACTURER'S WARRANTY. Subcontractor shall remain liable to purchasers of Superior Walls Products to perform or pay for (at Licensee's sole discretion) any repair or remedial work for such products in accordance with the manufacturer's warranty. R. NON -ASSIGNABILITY. This Agreement is not assignable by Subcontractor without the prior written consent of both Licensor and Licensee. Form 42-031 (Subcontractor-Builder/Installer-Installation Consent Agreement) 9-29-2008 Page 6 of 8 IN WITNESS WHEREOF, the parties hereto have executed this Agreement, intending thereby to be legally bound, on the day and year indicated below. Form 42-031 Consent Agreement) 8-29-2008 Page 7 of 8 Witness/Attest W.itness/Attest Attest SUBCONTRACTOR By: Printed name Title: Date: LICENSEE By: Printed name: Title: Date: LICENSOR Superior Wallof America, Ltd. By: Printed name: Title: Date: (Superior Walls of America, Ltd. is a party to this Agreement only with respect to any applicable terms between Licensor and Licensee, and not as to the terms between Licensee and Subcontractor, though Superior Walls oE America, Ltd. is an intended third -party beneficiary of this Agreemrit.) Form 42-031 (Subcontractor-Builder/Installer-Installation Consent Agreement) 9-29-2008 Page 8 of 8 Superior Walls � Exhibit SUBCONTRACTOR (Independent Installer) INSTALLATION CONSENT AGREEMENT AGREEMENT made by and between SUPERIOR WALLS OF AMERICA, LTD., a Pennsylvania corporation ("Licensor"), and Advanced Concrete Systems, Inc. of 55 Advanced Lane, Middleburg, PA 17842 (Licensee'), effective as of Licensor's execution of this Agreement. WITNESSETH: i The parties hereto have previously entered into a SUPERIOR WALLS License Agreement dated , wherein Licensee agreed to operate the Licensed SUPERIOR WALLS business at the locations(s) specified in the License Agreement in accordance with methods and procedures approved and prescribed for the SUPERIOR WALLS System and to nnanufoo1ure, sell, transport and install SUPERIOR WALLS System products in conformance with Licensor's standards and specifications of quality and workmanship and pursuant to the SUPERIOR WALLS System as currently prescribed and as may be revised in the future from time to time by Licensor, and U Licensee desires, and requests Licensors consent and appvomd, to engage the services of a qualified independent contractor (hereinafter referred to as "Suboontraotor"), to be trained and certified to install SUPERIOR WALLS System products sold and manufactured by Licensee. Ui The term of this Agreement shall be the time remaining in the initial term of the License Agreement or any extension(s) thereof, between Licensor and Licensee. The terms and conditions thereto may be revised by Licensor from time to time upon written notice of Licensor to Licensee. In the event the License Agreement shall be terminated, this agreement shall terminate simultaneously. IV. Licensee shall owe Licensor royalty on sales of any and all SUPERIOR WALLS System products installed by Subcontractor to any paroon, party, and/or entity as set forth in this Agneemerk, royalties due in the amount of four percent (4%) assessed on the gross selling price, less sales tax payable by Licensee or Licensor in the manner prescribed in the License Agreement between the parties. V. Licensee and Subcontractor shall agree as to the terms and conditions of Subcontractor compensation as to amounts acceptable and agreeable between Licensee and Subcontractor without notice to nor review by Liueneor, which shall be the sole and exclusive responsibility of Licensee to Subcontractor and which shall specifically not involve Licensor in any way whatsoever. VI. This Agreement and the INDEPENDENT CONTRACTOR (Installer) AGREEMENT FOR INSTALLATION OF SUPERIOR WALLS PRODUCTS (attached hereto as Exhibit A) documents are incorporated in the License Agreement. VII. Licensee will immediately cancel all installation work with Subcontractor upon written notice from Licensor to Licensee that an acor acts of Subcontractor have, or are likely to have, injurious effect(s) to the reputation of Licensor, Licensee or the SUPERIOR WALLS System or name, same to be interpreted in the sole and exclusive discretion of Licensor. VIII. A default of this Agreement and/or the License Agreement between Licensor and Licensee shall terminate this Agreement and all corresponding Subcontractor Agreements authorizing certain previously approved Subcontractors of Licensee to install on behalf of Licensee unless Licensor waives the same or any of the same by specific written exception. However, the affirmative obligations of Form 42-033 (Subcontractor -Independent Installer Installation Consent Agreement) 9-29-2008 Page 1 of 8 Licensee and/or Subcontractor as to monetary obligations, performance, confidentiality and covenant not to compete shall remain in full force and effecand shall survive termination of this Agreement in every respect whatsoever. Licensee acknowledges and agrees that Licensor shall have the right, but not the ob|igation, to enforce Subcontractor's covenant not to compete described in Section K of the INDEPENDENT CONTRACTOR (Installer) AGREEMENT FOR INSTALLATION OF SUPERIOR WALLS PRODUCTS. IX. A default of any of the provisions of this Agreement by Licensee shall be also a cross - default of the terms and conditions of the License Agreement between Licensor and Licensee and all Subcontractor Agreements in effecunless Licensor waives the same by specific written exception. In the event Licensor takes any action or commences any legal proceedings against Licensee and/or Subcontractor to enforce any provision of this Agreement, Licensor shall be entitled to recover, in addition to its damages and remedies aought, all fees, ooats, expenses and attorney fees of Licensor thereby incurred. If Licensee takes any action or commences any proceeding against Licensor arising under this Agreement and does not prevail therein, Licensor shall be entitled to recover from Licensee all fees, costs, expenses and attorney fees of Licensor thereby incurred. X. Licensee agrees to actively and consistently monitor Subcontractor's activities under the INDEPENDENT CONTRACTOR (Installer) AGREEMENT FOR INSTALLATION OF SUPERIOR WALLS PRODUCTS and to enforce Subcontractor's obligations under that Agreement. Licensee shall promptly notify Licensor in writing of all instances in which Licensee finds that Subcontractor has failed to meet or conform to the quality standards and specification required by Licensor or Licensee and of all customer complaints pertaining to SUPERIOR WALLS installations performed by Subcontractor. Licensee shall cooperate fully with Licensor or its representative in making on-site inspections of SUPERIOR WALLS installation work performed by Subcontractor. Xi If any provision of this Agreement shall be invalid or unenforceable, either in its entirety or partially or because of it application to particular circumstances, such provision shall, by mutual intention herein expressed by the parties hereho, be deemed modified to the minimum extent necessary to render such provision valid or applicable or to be eliminated from this Agreement, as required, and this Agreement shall be construed and enforced as if such provision had been originally so modified or eliminated. In the event that total or partial invalidity or unenforceability of any provision of this Agreement exists only with respect to the laws of a particular jurisdiction, this section shall apply only to the extent that the laws of such jurisdiction are controlling. XII. This Agreement shall be interpreted and governed by the laws of the Commonwealth of Pennsylvania, notwithstanding any conflict of laws rules. Any dispute arising under this Agrgemen1, including the nonstnucbon, interpretation and enforcement of this Agreement, shall be adjudicated exclusively in the state or federal courts sitting or having jurisdiction in Harrisburg or Philadelphia, PA. The parties hereby waive all questions of personal jurisdiction and venue for the purpose of carrying out this provision. XIII. This Agreement is not assignable by Licensee without the prior written consent of Licensor. XIV. Licensor is willing to give its consent and approval to Licensee's engagement of the following Subcontractor: for the purposes hereinabove delineated and upon the execution of the INDEPENDENT CONTRACTOR (Installer) AGREEMENT FOR INSTALLATION OF SUPERIOR WALLS PRODUCTS. Form 42-033 (Subcontractor -Independent Installer Installation Consent Agreement) 9-29-2008 Page 2 of 8 LICENSEE SUPERIOR WALLS OF AMERICA, LTD ADVANCED CONCRETE SYSTEMS, INC. By: By: Date: Date: Form 42-033 (Subcontractor -Independent Installer Installation Consent Agreement) 9-29-2008 Page 3 of 8 EXHIBIT& A U0������N������������� �������������� INDEPENDENT " ~°~°"=^ "�-~~~ " ~"^" (Installer) AGREEMENT FOR " INSTALLATION ATION OF SUPERIOR WALLS PRODUCTS AGREEMENT made by and between of ("Licensee") and an Independent Contractor, of ("Subcontractor"), and Superior Walls of America. Ltd. WITNESSETH: WHEREAS, Licensee is a party to a License Agreement with SUPERIOR WALLS OF AMERICA, LTD., a Pennsylvania corporation (the "Licensor"), whereunder Licensee is licensed to sell, manuhaotuua, transport and install SUPERIOR WALLS System products in strict accordance with the Licensor's standards and specifications of quality and workmanship and pursuant to the SUPERIOR WALLS System as currently prescribed and as revised in the future, and VVHEREAS. Licensee desires to non -exclusively engage the services of a trained and qualified Subcontractor to install SUPERIOR WALLS System products manufactured by Lk:ennee, and has obtained the Licensor's consent to do so, and VVHEREAG. Subcontractor desires to perform, non -exclusively, the installation services of the SUPERIOR WALLS System products manufactured by Licensee in the capacity of Subcontractor of Liueneae, pursuant to the terms and conditions of this INDEPENDENT CONTRACTOR (Installer) AGREEMENT FOR INSTALLATION OF SUPERIOR WALLS PRODUCTS, NOW, THEREFORE, in consideration of the foing and the mutual promises herein set forth, the Licensee and Subcontractor hereby agree as follows: A. AUTHORITY. Subcontractor is authorized to perform installation work only, within the area of primary responsibility (APR) of the Licensee or in other non -licensed eroas, as specified by the Licensee. Subcontractor is not authorized to enter into any other agreement of any nctuve, for or on behalf of Licensee or Licensor. This Agreement must be executed by all parties hereto prior to Subcontractor making any representation to any third party that Subcontractor is authorized to perform installation work. B. TRAINING AND CERTIFICATION. Prior to installing SUPERIOR WALLS System products, at leastwo of Subcontractor's personnel who will be supervising the installations, must have first successfully completed (to the satisfaction of Licensee and Licensor) an installation training program conducted by Licenuoe, and thereafter issued an Installation Certification by Licensor. C. INSTALLATION SUPERVISION. Subcontractor shall not install any SUPERIOR WALLS System products at any time except under the direct "on-site" supervision of a person who has successfully com| ted the Licensor -approved training program and has been so certified by Licensor. Installation Certification must be renewed pahudicaUy, as specified by Licensor, to remain current and valid. Form 42-033 (Subcontractor -Independent Installer Installation Consent Agreement) 9-29-2008 Page 4 of 8 O. QUALITY ASSURANCE INSPECTIONS. Subcontractor acknowledgesendogmeatha the highest quality of Subcontractor's workmanship is required in all instances of installation of the product and is the essence of this Agreement with Licensor and Licensee which can only be achieved by Subcontractor with the direct supervision of specific details by Licensor and/or Licensee. Licensor and/or Liconaea, or an authorized representative of either, have the unrestricted right and legal obligation to make on-site inspections of SUPERIOR WALLS installation work performed by Subcontractor from time to time and to inspect the quality of workmanship achieved by Subcontractor and to require to their satisfaction strict and full compliance with such prescribed standards and specifications of workmanship required by Licensor and/or Licensee. Licensee has the right to withhold payment to Subcontractor, until the Licensee has inspected and approved each wall system installation (based on Superior Walls specifications and tolerances). Licensee has the right to deduct from Subcontractor's payment the cost of repairs or other corrective action needed to meet Superior Walls installation specifications and Licensee's warranty. Subcontractor shall purchase from Licensee the SUPERIOR WALLS installation equipment package and all needed installation supplies. Subcontractor must perform a minimum of 2 installations a month or the equivalent of 24 installations per calendar year to maintain proficiency and retain installation certification. Subcontractor personnel are required to wear prescribed Superior Walls clothing when performing any Superior Walls work. Failure to wear required clothing may lead to termination of this agreement at the sole discretion of Licensor. E. EXCLUSIVITY. Subcontractor shall install the SUPERIOR WALLS System products exclusively for and under contracwith Licensee and for no other licensee or franchisee of SUPERIOR WALLS, without first obtaining the prior written consent of Licensee. F. COMPENSATION FOR ANY AND ALL INSTALLATION OF SUPERIOR WALLS PRODUCTS. Licensee will pay the Subcontractor for installation services after final inspection and job approval by Licensee. Rate, method of payment, and terms of payment will be determined by the Licensee. G. LICENSES AND PERMITS. Licensee will be responsible for obtaining any and all required permits, licenses and authorizations required by all applicable locallaws and regulations and will not subcontracany SUPERIOR WALLS installation work until the same have first been obtained and received. H. INSURANCE. Subcontractor shall maintain at all times general liability and workers compensation insurance in such amounts as may be required by Licensor or Licensee from time to time specifically covering damages and injury to persons and/or property for losses arising out of, or in connection with, any act done or not done under agreement with Licensee, including, but not limited to, any and all present, past and future installations. Said insurance shall be in the minimum amount of $1.000.000 per person with a per incident amount of $2.000.000. and shall expressly name Licensor and Licensee as named and endorsed additional insured parties. Subcontractor shall, within 30 days of the signing of this Agroemert, and annually thereafter, provide Licensor and Licensee with evidence that the insurance coverage required hereunder is currently in effect and shall provide Licensor and Licensee with a Certificate of Insurance showing that they both are named and endorsed as additional insured parties under the Subcontractor's policy. Subcontractor's insurer shall give Licensor and Licensee no less than thirty (30) days written notice of intent of the insurer to cancel any policy of insurance with Subcontractor for whatever reason. Failure of Subcontractor to comply with the provisions of this Section H shall result in termination of this Agreement at the sole and exclusive discretion of Licensor. REPORTS. Subcontractor agrees to provide to Licensee and Licensor (1) weekly installation efficiency reports, and (2) such other forms, oeporte, reoorda, information, and data as Licensor and/or Licensee may reasonably request from time to time. J. CONFIDENTIALITY AND NON -DISCLOSURE. Subcontractor and Subcontractor's employees shall not disclose any proprietary information concerning the sale, manufacture, transportation and installation of the SUPERIOR WALLS System products and/or System to any person, party or entity Form 42-033 (Subcontractor -Independent Installer Installation Consent Agreement) 9-29-2008 Page 5 of 8 during the term of all Subcontractor's agreements with Licensee and for a term thereafter of ten (10) years. K. COVENANT NOT TO COMPETE. Subcontractor covenants that, for a period of two (2) years after expiration, termination of this Agreement or the last installation completed by Subcontractor for Uoensee, whichever is |ater, it will not: (1) at or within 10 miles of any location where Subcontractor installed Superior Walls for Licensee, (2) within Licensee's area of primary responsibility (APR) or (3) within sixty (60) miles from the perimeter of the APR, whether as a sole proprietor, partner, emp|oyna, stockholder, principal, agent, consultant, director, officer, or in any other capacity or manner whatsoever, compete with Licenaor. Liopneee, or any other licensee or franchisee of Licensor; solicit any customers, clients or accounts of Licensor and/or Licensee; or engage in the mmnuhaoune, sale or promotion of goods, services, processes and products similar to those of Licensor and/or Licensee. L. TERM. This INDEPENDENT CONTRACTOR (Installer) AGREEMENT FOR INSTALLATION OF SUPERIOR WALLS PRODUCTS between Licensee and Subcontractor shall be for a term of one (1) year, automatically renewable for additional one (1) year periods, unless terminated by either party with sixty (60) days written notice prior to the renewal date, with such renewals not to exceed Licensee's remaining License term with Licensor or any extension(s) thereof. The INDEPENDENT CONTRACTOR (Installer) AGREEMENT FOR INSTALLATION OF SUPERIOR WALLS PRODUCTS can be terminated by Licensor, Licensee or Subcontractor with sixty (60) days written nodce, subject to Sections N, 0 and R herein. M. RELATIONSHIP OF THE PARTIES. The relationship of Licensee with Subcontractor will be one of independent contractor and not of agencyemployment or partnership. Subcontractor will neither make representation nor give the impression that it is an agent or employee of Licensor or Licensee. Subcontractor shall not use the Proprietary Marks or the words "Superior Walls" as part of its corporate or other legal name unless authorized or required by Licensor and, if so authorized or required by Licanmor, shall only use the Proprietary Marks or the words "Superior Walls" in the manner specified and approved by Licensor. N. CANCELLATION/REVOCATION. The consent and approval by Licensor for a Subcontractor of Licensee may be suspended or revoked by Licensor and/or Licensee at any time upon either a finding of Licensor or Licensee of one or more of the following: that (1) Subcontractor has failed to meet the quality standards of workmanship required by its contract with Licensee; (2) Subcontractor has or has attempted to perform SUPERIOR WALLS installation work for anyone other than the Licensee without first having obtained the consent of Licensor and Licensee; (3) Subcontractor has failed to perform SUPERIOR WALLS installation work under the direct supervision of a person who has successfully completed the required training program and has been so certified by Licensor; (4) Subcontractor's certification has expired and has not been renewed by Licensor and Licensee within thirty (30) days; (5) Subcontractor has breached any term or provision of this INDEPENDENT CONTRACTOR (Installer) AGREEMENT FOR INSTALLATION OF SUPERIOR WALLS PRODUCTS ; or (6) any act or acts of Subcontractor have, or are likely to have, an injurious effect on the reputation of Licenoor. Licensee or the SUPERIOR WALLS System or name, same to be interpreted in the sole and exclusive discretion of Licensor and Licensee, or either of them. Upon receipt of written notice by Subcontractor, this INDEPENDENT CONTRACTOR (Installer) AGREEMENT FOR INSTALLATION OF SUPERIOR WALLS PRODUCTS shall terminate. O. NOTICE. Any party can terminate this agreement upon sixty (60) days written notice to the other parties with or without cause. P. INVALIDITY. If any provision of this Agreement shall be invalid or unan/omnmb|e, either in its entirety or partially or because of its application to particular circumstances, such provision shall, by mutual intention herein expressed by the parties here\o, be deemed modified to the minimum extent necessary to render such provision valid or applicable or to be eliminated from this Agneement, as required, and this Agreement shall be construed and enforced as if such provision had been originally so modified or eliminated. In the event that total or partial invalidity or unenforceability of any provision of Form 42-033 Installer InstaHation Consent Agreement) 9-29-2008 Page 6 of 8 this Agreement exists only with respect to the laws of a particular jurisdiction, this Section shall apply only to the extent that the laws of such jurisdiction are controlling. Q. INTERPRETATION. This Agreement shall be interpreted and governed by the laws of the state wherein lies the Licensees Approved Location, notwithstanding any conflict of laws rules. Any dispute arising under this Agreement, including the construction, interpretation, and enforcement of this agreement, shall be adjudicated exclusively in the state or federal courts sitting or having jurisdiction in or near the Licensee's Approved Location, and Licensor, Licensee, and Subcontractor each irrevocably consent to the jurisdiction of such courts and each hereby waive any venue objections they may have to adjudicating disputes in such courts. R. BREACH. In the event that Subcontractor shall breach any provision(s) of this Agreemert. Licensor and/or Licensee may terminate this Agreement. Uooneeo, in addition to other remedies delineated in this Aonaemenk, shall be entitled to all remedies allowed by the law, including payment of all of Licensee's attorneys' fees, costs of suit, and injunctive va|ief, at the sole cost and expense of Subcontractor. However, all confidentiality provisions and covenants not to compete shall remain in full force and effect and shall survive termination of this Agreement in every respect whatsoever. S. MANUFACTURER'S WARRANTY. Subcontractor shall remain liable to purchasers of Superior Walls Products to perform or pay for (at Licensee's sole discretion) any repair or remedial work for such products in accordance with the manufacturer's warranty. T. NON -ASSIGNABILITY. This Agreement is not assignable by Subcontractor without the prior written consent of both Licensor and Licensee. Form 42-033 (Subcontractor -Independent Installer Installation ConsenAgreement) 9-29-2008 Page 7 of 8 IN WITNESS WHEREOF, the parties hereto have executed this Agreement, intending thereby to be legally bound, on the day and year indicated below. Witness/Attest Witness/Attest Attest SUBCONTRACTOR By: Printed name: Title: Date: LICENSEE By: Printed name: Title: Date: LICENSOR Superior Walls of America, Ltd. By: Printed name: Title: Date: (Superior Walls of America, Ltd. is a party to this Agreement only with respect to any applicable terms between Licensor and Licensee, and not as to the terms between Licensee and Subcontractor, though Superior Walls of America, Ltd. is an intended third -party beneficiary of this agreement.) Form 42-033 (Subcontractor -Independent Installer Installation Consent Agreement) 9-29-2008 Page 8 of 8 EXHIBIT J. PERFORMANCE STANDARDS Twelve-month Period Preceding the Date Specified Market Share Percentage Initials of Licensee and Licensor Date Initialed Initial period only — from date of execution of this License Agreement to December 31, 2008 ,i/y- 4.-g c)? -2A) // /908 Vie 3/ , 2009 2010 , 2011 , 2012 , 2013 , 2014 ,2015 ,2016 , 2017 Licensor and Licensee agree that this Exhibit J is an attachment to, and forms part of, the Superior Walls License Agreement executed by Licensor and Licensee. Licensor and Licensee further agree that the Performance Standards set forth herein have been agreed between them as the minimum market share of Superior Walls Products to be installed by Licensee in its APR during the periods of time shown. LICENSEE ADVANCED CONCRETE SYSTEMS, INC By: iflicheiel if L. -liven Printed Name Title LICENSOR LICENSOR SUPERIOR WALLS OF AMERICA, LTD. Printed Name RS/ er4 Title Page 1 of 1 EXHIBIT K SUPERIOR WALLS SOFTWARE LICENSE AGREEMENT This Agreement is entered into as of this /9 day of i/1/17 ,,2008 ("Effective Date"), by and between Superior Walls of America, Ltd. a corporation duly organized and existing under the laws of the State of Pennsylvania having an address at 937 East Earl Road, New Holland, Pennsylvania 17557 ("Licensor") and Advanced Concrete Systems, Inc. ("Licensee"). The parties intending to be legally bound, agree as follows: SOFTWARE LICENSE 1.1 License Grant. Licensor grants to Licensee, on the terms and conditions set forth herein, a non-exclusive, non -transferable license to use the proprietary Superior Walls software package (the "Software") and applicable related materials, see list of software being licensed below, at Licensee's facilities for its own internal business purposes in connection with the LICENSE agreement between the parties dated on or about the Effective Date hereof (the "LICENSE Agreement"). The license granted hereunder does not authorize Licensee to change or modify the Software. Software included in License://5 v/9, 1.2 Backup Copies. Licensee may make one (1) copy of the Software for nonproductive backup purposes only, in accordance with its archival procedures. Licensee must reproduce and include the copyright notice and proprietary legends on such backup copy, as specified by Licensor. Such backup copy must be stored, in a safe and secure location and must be appropriately logged and accounted for upon Licensor's request. 1.3 Limited Use. Licensee shall not reproduce, reverse engineer, decompile, transfer electronically or permit any other use of the Software. 2. WARRANTIES AND DISCLAIMERS 2.1 Warranty. Licensor warrants to Licensee that the Software will materially conform to the corresponding specifications for a period of thirty (30) days from the date of delivery to Licensee ("Warranty Period"). The above warranty does not apply to any third party software or any materials supplied or otherwise used by Licensee. 2.2 Remedies. In event of a breach of Section 2.1 above, Licensor shall, at its option, and as Licensee's sole and exclusive remedy, either correct such non -conformity, replace the Software, or return the fees received by Licensor with respect to'thenon-conforming Software. 23 Proper Use of Software. The above warranty is contingent upon the proper use of the Software. Any (i) alteration, repair or modification of any part or portion of the Software by Page 1 of 4 any party other than Licensor; (ii) non -conformity caused by use of the Software with other software or hardware not specified in writing by Licensor as compatible; or (iii) non -conformity caused by materials or information provided by Licensee or a third party will render this warranty null and void. 2.4 EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED HEREIN, LICENSOR EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY WITH REGARD TO THE SOFTWARE, INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. Licensor does not warrant that the Software will operate uninterrupted or error -free or that all errors in the Software shall be corrected. 3. INTELLECTUAL PROPERTY 3.1 Ownership. Except as expressly provided in Section 1 hereof, as between Licensee and Licensor, Licensor shall own all right, title and interest (including all intellectual property thereto) in and to the Software and applicable related materials, including all enhancements, modifications, improvements, derivations or other changes made by Licensor or by or on behalf of Licensee. 3.2 Third Party Software. To the extent that any Software or related materials incorporates any third party software, Licensee shall only have the rights specified in this Agreement for such third party software. Such third party software shall be licensed directly from the vendor by Licensee and Licensor shall have no obligations or liability with respect to such software. 4. 1 -EES AND PAYMENT 4.1 Fees. Licensee has paid to Licensor, concurrently with the execution of this Agreement, a license fee of $ ,049 per license, receipt of which is hereby acknowledged. Upon payment, the license fee shall be deemed fully earned and non-refundable. 4.2 Taxes. Applicable taxes, including sales, use, personal property, excise, or other taxes and duties, excluding any income taxes, will be paid by Licensee. 5. PERM AND TERMINATION 5.1 Term. This Agreement shall become effective as of the Effective Date and, except as otherwise provided herein, shall continue in full force and effect until terminated as set forth below, provided however, that this Agreement shall terminate immediately upon the termination or expiration of the LICENSE Agreement. 5.2 Termination. Licensor may terminate this Agreement if Licensee: Page 2 of 4 (a) makes an assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of all or part of its property; or (b) becomes insolvent or has a petition in bankruptcy, reorganization or similar action filed by or against it and such petition is not dismissed within sixty (60) days after it was filed; or (c) commits a material breach of its obligations under this Agreement or the LICENSE Agreement, which breach is not cured within thirty (30) days from written notice from Licensor. 5.3 Return of Materials. Upon termination of this Agreement, Licensee shall return all Confidential Information and proprietary materials of Licensor (including the Software) to Licensor. 6. SUPPORT 6.1 Support of the Software shall be provided by Licensor pursuant to the terms and conditions of the maintenance policy set out in the Superior Walls Manufacturing Manual or otherwise in writing, as revised from time to time, at its sole discretion. Except as provided under such maintenance policy, Licensor will be under no obligation to provide Licensee with phone support or with any updates, modifications, releases or enhancements to the Software. 7. LIMITATION OF LIABILITY 7.1 IN NO EVENT SHALL LICENSOR BE LIABLE TO LICENSEE OR TO ANY OTHER PARTY FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES PURSUANT TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF BUSINESS OPPORTUNITIES, OR LOSS OF GOODWILL, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 7.2 Licensor's aggregate liability hereunder shall not exceed the license fees actually paid by Licensee during any twelve (12) month period hereunder. The limitations specified in this Section 7 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose. No action arising out of or in connection with this Agreement may be brought by either party more than one (1) year after the cause of action has accrued, except that an action for nonpayment of any monies due Licensor hereunder may be brought within two (2) years of the date of the termination of this Agreement. 8. CONFIDENTIAL INFORMATION 8.1 Licensee and its employees and agents shall keep confidential any confidential or proprietary information of Licensor and Licensor's business, and of the Superior Walls System, including the Software and related materials, that is disclosed to Licensee. Licensee shall limit disclosure of such information to those of its employees and agents who have the need to know Page 3 of 4 the information for the purpose of this. Agreement. The parties acknowledge that failure to abide by this Section shall cause irreparable harm to the other party for which available legal damages will not provide an adequate remedy, and Licensor shall have the right to obtain injunctive relief to prevent any further violations of this Section and to recover court costs and reasonable attorney fees incurred in the enforcementof this Section. 9. MISCELLANEOUS 9.1 Sections 2, 3, 4, 5, 7, 8, and 9 shall survive termination or expiration of this Agreement for any reason. This Agreement will be governed by the laws of the State of Pennsylvania, without reference to the principles of conflicts of law. The parties hereto hereby consent to the non-exclusive jurisdiction, venue and forum of any state or federal court in the Commonwealth of Pennsylvania with respect to any action which, in whole or in part, arises under or relates to this Agreement. All notices required by this Agreement will be given in writing to the other party and delivered by registered mail, private courier, facsimile, or the equivalent. Notices will be effective when received as indicated on the facsimile, registered mail, or other delivery receipt. All notices will be given by one party to the other at its address stated on the first page of this Agreement unless a change thereof previously has been given to the party giving the notice. This Agreement may be modified only by a written amendment executed by duly authorized officers or representatives of both parties. This Agreement constitutes the complete and exclusive statement of the agreement between the parties and supersedes all proposals, oral or written, and all other prior or contemporaneous communications. between the parties relating to the subject matter herein. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first above written. Superior Walls of America, Ltd. Title: 76 •�12 ��. �. ( 7 Licensee Adt,474 Cov►crefc f By: e Title: /9044171 Page 4 of 4 EXHIBIT L PROJECT RESEARCH, DEVELOPMENT AND TESTING AGREEMENT THIS PROJECT RESEARCH, DEVELOPMENT AND TESTING AGREEMENT (herein called "AGREEMENT") is made by and between SUPERIOR WALLS OF AMERICA, LTD. (herein called "SUPERIOR WALLS") and ADVANCED CONCRETE SYSTEMS, INC. (herein called "Licensee"), effective as of SUPERIOR WALLS' execution of this AGREEMENT. WHEREAS, the parties desire to enter into an agreement for specific research, development and testing in order to change, modify and/or improve the materials, processes and Superior Walls products related to the design, engineering, manufacture, transportation, installation and sale of precast, insulated concrete, below -grade and/or above -grade walls and foundation -related products sold under Superior Walls Proprietary Marks (herein called the "SYSTEM") as Licensed by SUPERIOR WALLS to Licensee and others. NOW, THEREFORE, in consideration of the premises, the mutual covenants herein contained and for other good and valuable consideration, the parties covenant and agree as follows: 1. In the event Licensee, its employees, agents, or representatives make, conceive or acquire any invention, discovery, or product or any change, improvement, or modification (collectively, "Discovery") to any aspect of the SYSTEM, Licensee shall submit the same to SUPERIOR WALLS for its review. If SUPERIOR WALLS determines that all or part of the Discovery should be incorporated into the SYSTEM, SUPERIOR WALLS shall notify Licensee of SUPERIOR WALLS' approval and of the extent and manner in which such Discovery may be used. Licensee hereby grants to SUPERIOR WALLS all right, title, and interest in the submitted Discovery (whether or not approved) to the same extent as if SUPERIOR WALLS were the discoverer or inventor, including, without limitation, the right to apply, obtain, and own patents and/or copyrights for such Discovery or the right to sub -license such Discovery. 2. If SUPERIOR WALLS and Licensee agree that Licensee shall further develop and/or test any developmental products and processes, then SUPERIOR WALLS shall provide such supervision and materials as agreed by SUPERIOR WALLS and Licensee, and Licensee shall provide all labor and such materials as SUPERIOR WALLS has not agreed to provide. Licensee shall give SUPERIOR WALLS a written statement of objectives and complete costs to perform the same in a specific time frame as set forth in Paragraph 10 herein. 3. Licensee shall provide to SUPERIOR WALLS on a weekly basis, full written data with respect to Licensee's performance on such testing and/or development and SUPERIOR WALLS shall, in its sole and unrestricted discretion, decide whether or not to incorporate the tested materials, processes and procedures into the SYSTEM. 4. If SUPERIOR WALLS elects to incorporate the tested materials, processes and procedures into the SYSTEM, then Licensee shall be entitled to use such materials, processes and procedures on the same basis as all other SUPERIOR WALLS licensees/franchisees, subject to the (Project Research, Development and Testing Agreement) 9-29-2008 Page 1 of 3 existing License Agreement between SUPERIOR WALLS and Licensee (the "License Agreement"). 5. While this Agreement is in effect, SUPERIOR WALLS agrees to reimburse Licensee for prior agreed upon costs (per Paragraph 10 herein) by the reduction of one percent (1%) from the existing royalty service fee (due to SUPERIOR WALLS under the License Agreement) on all gross sales (as herein defined per Paragraph 6), from the date that the change, modification or improvement has been incorporated into the Licensee's production or installation process and so certified by SUPERIOR WALLS. Such royalty service fee reduction shall not exceed one hundred percent (100%) of the prior agreed-upon costs associated with the research, development and testing of the approved change, modification or improvement as set forth in Paragraph 10 herein. 6. The term "gross sales" means all revenue (whether or not received in full at the time of sale) for the sale of Superior Walls Products and all other products or services that Licensee has installed that are part of the System, and for transportation and installation of Superior Walls Products, whether for cash or credit, and regardless of collection in the case of credit. Gross Sales shall not include any sales taxes, or other taxes, collected from customers by Licensee and paid directly to the appropriate taxing authority, or any transportation costs from another licensee's or franchisee's Licensed or Franchised Business. For the purpose of this paragraph, "use taxes" are not considered "sales taxes". 7. This Agreement shall be in effect from the date of execution of this Agreement until terminated by either SUPERIOR WALLS or Licensee upon thirty (30) days prior written notice to the other. 8. SUPERIOR WALLS and Licensee shall execute any and all documents and consents necessary or appropriate to give effect to this Agreement and this duty shall survive termination of this Agreement. 9. It is the purpose of this Agreement to set out the terms and conditions for the research, development and testing by Licensee of any change, modification or improvement to the SYSTEM. Licensee covenants and agrees not to reveal the result of any research, development or testing of the SYSTEM to any person or firm (other than SUPERIOR WALLS), except to employees or contractors of the Licensee and then only in confidence and only to the extent the disclosure is necessary to the job performance in connection with the SYSTEM. 10. This Agreement shall be limited to research, development and testing as follows: at a cost not to exceed dollars ($ ) and in accordance with the budget attached hereto and made a part hereof. SUPERIOR WALLS reserves the right to approve any expenditures which may exceed any line item in this budget. Licensee shall complete this project by 11. The parties do hereby ratify, confirm and adopt all the terms and conditions of the (Project Research, Development and Testing Agreement) 9-29-2008 Page 2 of 3 License Agreement, which are incorporated herein by reference. 12. This Agreement shall inure to the benefit of and is binding upon the parties hereto and their respective successors, heirs, representatives, and assigns. 13. This Agreement shall be governed by the laws of the Commonwealth of Pennsylvania, notwithstanding any conflict of laws rules. Any dispute arising under this Agreement shall be adjudicated exclusively in the state or federal courts sitting or having jurisdiction in Harrisburg or Philadelphia, Pennsylvania, and SUPERIOR WALLS and Licensee each irrevocably consent to the jurisdiction of such courts and each hereby waive any venue objections they may have to adjudicating disputes in such courts. For purposes of jurisdiction, this Agreement shall be construed as having been entered into between the parties in New Holland, Lancaster County, Pennsylvania. IN WITNESS WHEREOF, the parties, intending to be legally bound, have signed and sealed this Agreement on the day and year indicated below. Witness/Attest Attest LICENSEE By: Printed name: Title: SUPERIOR WALLS OF AMERICA, LTD. B y: Printed name: Title: (Project Research, Development and Testing Agreement) 9-29-2008 Page 3 of 3 NAME AND ADDRESS EXHIBIT M LIST OF LICENSEE OWNERS TITLE : volca Ckcr fe- M IL Advanced Concrete Systems, Inc. (Name of Licensed Business) PARTNERSHIP INTEREST; LLC INTEREST; OR NUMBER OF SHARES PERCENTAGE OF TOTAL OWNERSHIP INTEREST (Submitted by) / ( ate) Page 1 of 1 Exhibit N ' Superior Walls Patent & Copyright Assignment and Non -Disclosure Agreement (For use with officers, directors, general partners, members, managers, any personnel. who receive training from Licensor, and any personnel who have access to Confidential Information) THIS AGREEMENT ("Agreement") is made by and between SUPERIOR WALLS OF AMERICA, LTD., a corporation organized under the laws of Pennsylvania having its principal place of business at 937 East Earl Road, New Holland, Pennsylvania 17557 ("SUPERIOR WALLS"), and Ilic4ae/ i tr residing at /if 1I t Wo&bur y i C-1 Z718 ("UNDERSIGNED"). Background UNDERSIGNED is employed or being hired by Aivovice61 6.AAcreA Spie44filf,a SUPERIOR WALLS licensed business ("LICENSEE"), into a position which has varied responsibilities, including the understanding, testing and improvement of existing products of SUPERIOR WALLS and/or the development of new products (the "Employment"). SUPERIOR WALLS and UNDERSIGNED desire to reduce to writing the Patent and Copyright Assignment and Non -Disclosure aspects of the Employment relationship. With the foregoing Background incorporated by reference, for the consideration of One Dollar ($1.00), the receipt and sufficiency of which is hereby acknowledged, and in further consideration of the affiliation of UNDERSIGNED with LICENSEE, UNDERSIGNED agrees as follows: 1. UNDERSIGNED shall promptly and fully disclose to SUPERIOR WALLS any and all works, inventions, discoveries, products, and improvements (whether or not copyrightable or patentable) ("Works") made, created, conceived, or acquired by UNDERSIGNED pertaining to or useful in the business of SUPERIOR WALLS, during Employment and any improvements on UNDERSIGNED's Works, made, created, conceived, or acquired by. UNDERSIGNED for one (1) year after the termination of Employment, whether made, created, conceived, or acquired solely or jointly with others, and whether during regular business hours or otherwise. The Works shall become and remain the property of SUPERIOR WALLS, whether or not patent applications are filed on the Works. 2. UNDERSIGNED shall from time to time, upon request and at the expense of SUPERIOR WALLS, make application for Letters Patent of the United States, and any and all foreign countries, on the Works and assign and transfer all said copyrights, applications, and Works to SUPERIOR WALLS or its nominee forthwith and without further consideration; and as to any copyrightable Work which is not considered a work for hire, UNDERSIGNED agrees that he or she will, upon request of SUPERIOR WALLS, assign to SUPERIOR WALLS or its nominee the copyright(s) in such copyrightable Work(s) and grant SUPERIOR WALLS or its nominee the right to all measures necessary to effectuate the assignment and perfect SUPERIOR WALLS' or its nominee's copyrights in such Work(s). Form 20-041 (Patent -Copyright. Assignment -Non -Disclosure Agreement) 9-29-2008 Page 1 of 3 3. UNDERSIGNED shall from time to time, upon request of SUPERIOR WALLS execute all papers and do all other things that may be reasonably required in order to protect the rights of SUPERIOR WALLS and to vest in SUPERIOR WALLS, or its successors and assigns, the entire right, title and interest in and to any and all copyrightable Works and the applications for copyright registration and/or Letters Patent relating to anything pertaining toor useful in the business of SUPERIOR WALLS, as provided in Paragraph 1 above. 4. UNDERSIGNED shall not divulge to any third party either during his or her Employment or thereafter, any confidential information conceived or obtained by UNDERSIGNED while in the employment of LICENSEE, relating to the business of SUPERIOR WALLS, or to any of its processes, apparatus, products, software packages, mailing lists, customer records, programs or trends in research, or to any of the Works and shall maintain this information in confidence until such time as said information has become widely known to the public from other sources or described in an issued Patent or in a printed lawful publication of wide circulation. Upon termination of Employment, UNDERSIGNED agrees to turn over to SUPERIOR WALLS all notes, memoranda, notebooks, drawings, records and correspondence whether in hard copy or on magnetic or other recording media ("Records"), in connection with anything done by UNDERSIGNED relating to his or her Employment; it being agreed that all confidential information contained in the Records are at all times the sole property of SUPERIOR WALLS. 5. In the event UNDERSIGNED's present Employment or affiliation with LICENSEE is terminated, UNDERSIGNED agrees that he or she will not directly or indirectly compete with SUPERIOR WALLS for a period of two (2) years following such termination. UNDERSIGNED shall be deemed to be engaged in competition with SUPERIOR WALLS if UNDERSIGNED engages in a business which involves the sale or distribution of precast, insulated concrete walls or licenses/franchises similar in type or use to the licenses offered or granted by SUPERIOR WALLS during the term of UNDERSIGNED's Employment, or is a shareholder, officer, partner, employee, representative, agent or consultant of any person or entity engaged in any of such activities, within (i) the area of primary responsibility (APR) under LICENSEE's license or franchise agreement with Superior Walls (the boundaries of which UNDERSIGNED acknowledge have been explained to UNDERSIGNED); (ii) sixty (60) miles of the location where LICENSEE has or had a manufacturing facility; or (iii) sixty (60) miles from the perimeter of the APR of the Licensee. For a period of two (2) years following the termination of his or her Employment or affiliation with LICENSEE, UNDERSIGNED shall not directly or indirectly solicit any present employee of SUPERIOR WALLS, or of any party operating a SUPERIOR WALLS manufacturing business under the SUPERIOR WALLS SYSTEM, to accept employment from any other corporation or firm with which UNDERSIGNED is affiliated. 6. UNDERSIGNED acknowledges that any violation of the covenants contained in this Agreement would result in immediate and irreparable injury to SUPERIOR WALLS for which no adequate remedy at law will be available. SUPERIOR WALLS shall have the right to obtain preliminary and permanent injunctions and other equitable relief including, without limitation, an equitable accounting of earnings, profits and other benefits, in the event of any breach of this Agreement by UNDERSIGNED, which remedies shall be cumulative and in addition to all other rights or remedies to which SUPERIOR WALLS may be entitled. UNDERSIGNED agrees to pay all costs and expenses (including reasonable attorneys' and experts' fee) incurred by SUPERIOR WALLS in connection with the enforcement of this Agreement. If any portion of the restrictions contained in this Agreement should be adjudged unreasonable and unenforceable in any proceeding, such restriction, or portion of Form 20-041 (Patent -Copyright Assignment -Non -Disclosure Agreement) 9-29-2008 Page 2 of 3 such restriction, shall be deemed modified to such extent (and only to such extent) as is necessary to enable such restriction, or portion of such restriction, to be adjudged reasonable and enforceable in such proceeding. 7. The continuance of UNDERSIGNED in the present Employment relationship or affiliation with LICENSEE for a definite period is not made obligatory upon either SUPERIOR WALLS, UNDERSIGNED, or LICENSEE as a condition of this Agreement. 8. This Agreement shall be binding upon UNDERSIGNED'S heirs, executors, administrators and other legal representative or assigns and shall inure to the benefit of SUPERIOR WALLS, its successors and assigns. 9. UNDERSIGNED represents that he or she has no agreements with or obligations to others in conflict with any term or provision of this Agreement. 10. Should any portion of this Agreement be held to be unenforceable, such holding shall not adversely affect any other portion of this Agreement. 11. This Agreement shall be interpreted and governed by the laws of the Commonwealth of Pennsylvania, notwithstanding any conflict of laws rules. Any dispute arising under this Agreementshall be adjudicated exclusively in the state or federal courts sitting or having jurisdiction in Harrisburg or Philadelphia, Pennsylvania, and SUPERIOR WALLS and UNDERSIGNED each irrevocably consent to the jurisdiction of such courts and each hereby waive any venue objections they may have to adjudicating disputes in such courts. For purposes of jurisdiction, this Agreement shall be construed as having been entered into between the parties in New Holland, Lancaster County, Pennsylvania. UNDERSIGNED / By: Print name: Date: ilJVgf er AMERICA, LTD. Print name: ��rn5 1C1?0 Date: /1/,0 19; Zt g Form 20-041 (Patent -Copyright Assignment -Non -Disclosure Agreement) 9-29-2008 Page 3 of 3 CROSS APR SALES AGREEMENT This :Cross APR Sales Agreement (the "Cross APR Sales Agreement") is made and. entered into this 24th day of June 2011, by and among Advanced Concrete Systems, Inc.:. ("ACS"), Weaver Precast, Inc. ("WP"), and Superior Walls of America, Ltd. ("SWA"). (All persons and entities identified above are sometimes collectively referred to hereinafter as the "Parties" and individually as a "Party".) RECITALS WHEREAS, ACS entered into a License Agreement with SWA, dated November 19, 2008. (the "ACS License Agreement"); WHEREAS, WP entered into a License agreement with SWA dated May 19,. 2009 (the "WP License Agreement"); WHEREAS, each of the ACS License Agreement and the WP License Agreement license to ACS nd WP the right to operate a Licensed Business (as defined in each of the ACS License Agreem-nt and the WP License Agreement) to manufacture, sell,and install Superior Walls Product. for use in residential, as well as non-residential construction projects, on an exclusive. basis in defined geographic area referred to in each of the ACS License Agreement and the WP License greement as the Area of Primary Responsibility or APR (the "APR"); HEREAS, each of the ACS License Agreement and the WP License Agreement define "Superior Walls Products" as "foundation -related products sold under the Proprietary Marks .:. which term shall also include the manufacturing, selling, transporting and installing of Superior Walls Products"; WHEREAS, eachof the ACS License Agreement and the WP License Agreement. contain. an Exhibit B, which lists "Territory 'Exceptions" that permit ACS and WY to sell Exhibit 2 Superior Walls. Products to the customers listed on Exhibit B, regardless of whether or not they are within each of the Parties' respective APR's (as defined in each of ACS' and WP's respective License. Agreements); WHEREAS, each of ACS and WP have sold to parties listed on Exhibit B in the other Party's APR;. WHEREAS, ACS and WP each desire to have the ability to sell Superior Walls Products to certain customers (with whom they respectively enjoy established business relationships) outside of their respective APR and within the other Party's APR; with the further understanding and agreement between ACS and WP that the provisions of this Cross. APR Sales Agreement are. to be construed narrowly to achieve the specific sales that are expressly contemplated herein, and shall not be construed expansively in any manner that would permit either ACS or WP to expand their sales opportunities or actual sales in the other Party's APR beyond what is expressly permitted in this Cross APR Sales Agreement. WHEREAS, ACS and WP desire that Exhibit B be eliminated from the ACS License Agreement and the WP License Agreement; WHEREAS, SW.A is willing to amend the ACS License Agreement and the WP License Agreement to incorporate the provisions of this Cross. APR Sales Agreement into each of the ACS License Agreement and the WP License Agreement; WHEREAS, to avoid expensive and time-consuming litigation, the Parties desire to compromise and have agreed, without admission of any Party, to adjust settle and compromise all claims which would or could have been asserted and all other claims arising prior to the date of this Cross APR Sales Agreement; WHEREAS, except as provided below in Section 4.1, the Parties desire that the terms arid conditions involved in the resolution and settlement of the matters in controversy shall remain confidential and that no publicity be accorded the terms and conditions of the Parties' settlement. NOW, THEREFORE, the Parties to this Cross APR Sales Agreement, in consideration of each and every undertaking and commitment of each to the other set forth herein, the sufficiency of which is hereby acknowledged, and intending to be legally bound hereby, mutually agree as follows: 1. Amendment to the ACS License Agreement and the WP License Agreement 1.1 ACS and SWA, simultaneously with the execution of this Cross APR Sales Agreement, will each execute an amendment to the ACS License Agreement providing for the elimination of Exhibit B in its entirety and acknowledging the effectiveness and inclusion of this Cross APR Sales Agreement in the ACS License Agreement. ACS and SWA hereby acknowledge that Exhibit B of the ACS License Agreement shall no longer be in force or effect, 1.2 WP and SWA, simultaneously with the execution of this Cross APR Sales Agreement, will each execute an amendment to the WP License Agreement providing for the elimination of Exhibit B in its entirety and acknowledging the effectiveness and inclusion of this Cross APR Sales Agreement in the WP License Agreement. WP and SWA hereby acknowledge that Exhibit,B of the WP License Agreement shall no longer be in force or effect, 1.3 The amendments to the license agreements required by Sections 1,1 and 1.2 shall be in the form attached hereto as Exhibit A, and shall contain language which establishes that ACS is a direct and intended third-party beneficiary of the, territorial limitation provisions of WP's amended license agreement with SWA, and that WP is a direct and intended third-party 3 beneficiary of the territorial limitation provisions of ACS's amended license agreement with SWA. 2. Cross APR Sales 2.1 ACS will permitWP to sell Superior Walls Products within ACS' APR, solely to the following established customers of WP (each a "WP Exception") (and not to any successor; affiliate or assignee of any such WP Exception): EG Stoltzfus Homes LLC, 474 Mt. Sidney Road, Lancaster, PA 17602; Landmark Homes, 1737 W. Main Street, Ephrata, PA 17522; Garman Builders, Inc., 471 N. Reading Road, Ephrata, PA 17522; and Classic Communities Corporation, 2151 Linglestown Road, Suite 300, Harrisburg, PA 17110 (collectively the "WP Exceptions"); provided, however, that: (a) the sale by WP to a WP Exception was requested by the WP Exception based on its successful initiation of a re -sale and installation to an end-user within ACS's APR (and not as the result ofa sales effort by WP to the end-user); (b) the end- user to whom the WP Exception intends to sell the Superior Walls Product is expressly identified in writing in the documents of the sale between WP and the WP Exception; and (c) the WP Exception agrees in writing that the Superior Walls Products being delivered or nstalled in the ACS APR shall not be sold, delivered or otherwise transferred to any other person or entity except the specific end-user for whom the WP Exception placed the order with WP. WP will not be permitted to sell Superior Walls Products to any other customer or end-user within ACS' APR without the express written permission of ACS. 2.2 If any yard signs are to be placed at job sites, such yard signs must be generic "Superior Walls" yard signs and shall not mention WP. 2.3 WP will permit ACS to sell Superior Walls Products within WP's APR, solely to the following established customers of ACS (each an "ACS Exception") (and not to any 4 successor, affiliate or assignee of any such ACS Exception): Foremost Industries, Inc., 2375. Buchanan Trail W., Greencastle, PA 17225; Farinelli Construction, Inc.,3 Kacey Court, Suite 101, Mechanicsburg, PA 17055; Brookside Homes, Inc., RD. I Route 522, Selinsgrove, PA 17870; Barry A. Bechtel General Contractor, Inc., Barry A Bechtel, Inc., Double BB Inc., and Foundations by BB Inc., collectively referred to as "Bechtel", all of which are located at 1845 Mud Run Road, York Springs, PA 17372, for those Superior Walls. Products that are purchased by Bechtel for resale and installation to its retail (individual homeowners) end-users or for customers of Zimmerman Homes and Renovations, 5760 York Road, New Oxford, PA 17350; Keystone Modular Homes, 6130 Jonastown Road, Harrisburg, PA 1711 2; Schaff's Home Center, Inc, 5300 Lincoln Way East, Fayetteville, PA 17222; and Chesapeake Homes, Ltd., 496 Lone Lane, Allentown, PA 18104; (collectively the "ACS Exceptions"); provided, however, that: (a) the sale by ACS to an ACS Exception was requested by the ACS Exception based on its successful initiation of a re -sale and installation to an end-user within. WP's APR (and not as the result of a. sales, effort by ACS to the end-user); (b) the end-user to whom the ACS Exception intends to sell the Superior Walls Product is expressly identified in writing in the documents of the sale between ACS and the .ACS Exception; and (c) the ACS Exception agrees in writing that the Superior Walls Products being delivered or installed in the WP APR shall not be sold, delivered or otherwise transferred to any other person or entity except the specific end-user for whom the ACS Exception placed .the order with ACS. ACS will not be permitted to sell Superior Walls Products to any other customeror end-user within WP's APR without the express written permission of WP. 2.4 If any yard signs are to be placed at job sites, such yard signs must be generic. "Superior Walls" yard signs and shall not mention ACS. 5 2.4.1 The Parties recognize that there may be occasions on which one or more of the WP Exceptions or ACS Exceptions identified herein (collectively an "Exception" or the "Exceptions") might engage in a building project under an assumed name, or through a subsidiary. The Parties agree that the provisions of this Agreement will apply in those instances, but only so long as: (1) the Exception is engaged in this activity on its own initiative, and not for the purpose of allowing either Party to evade its obligations under this Agreement; and (2) all of the other conditions set forth respectively in Sections 2.1, 2.2, 2.3 and 2.4 are satisfied; and (3) the Exception is the majority o ner of any other company that is created. 2.5 REDACTED REDACTED 2.6 REDACTED REDACTED 6 REDACTED 2.8 REDACTED REDACTED 9 REDACTED 3. Additional Terms: 3.1 The provisions of this Cross APR Sales Agreement shall become effective upon execution of this Cross APR Sales Agreement by ACS, WP and SWA, and the rights and obligations set forth in this Cross APR Sales Agreement shall remain in full force and effect, unless subsequently agreed by the Parties in writing, for so long as: (a) both ACS and WP, or any person or entity .to whom ACS and/or WP transfer their interests as permitted by the ACS License Agreement and the WP License Agreement, remain licensees of SWA and/or subject to the post -termination non -compete provisions of their License Agreements ith SWA; and (b) the amendments to the License Agreements required by Sections 1.1 and 1.2 remain in effect. 3.2 In the event that either ACS or WP violates any provision of Section 2 of this Cross APR Sales Agreement,. the Party in violation shall be prohibited from making any additional sales into the other Party's APR for a period, of three (3) months following, the Payment Date for a first violation, six (6) months following the Payment Dale for a second violation and twelve (12) months following the Payment Date for a third violation and any subsequent violations (each a "Prohibition Period"). In each instance, the Prohibition Period shall begin thirty (30) days following the default. The non -violating Party shall continue to be permitted to sell into the violating Party's APR in accordance with this Cross APR Sales Agreement and shall continue to be subject to the reporting and payment requirements of Section 2 of this Cross APR Sales Agreement. 3.3 For purposes of calculating performance standards under Section 7.10 of the ACS License Agreement and the WP License Agreement, all installations of Superior Walls Products 10 in the APR holder's APR shall inure to the benefit of the APR holder and shall count as Superior Walls Products installed in such APR whether installed by ACS or WP. 3.4 This Cross APR Sales Agreement shall be construed as part of the ACS License Agreement and the WP License Agreement. 3.5 ACS and WP shall be responsible for their own attorneys' fees and costs incurred in the drafting and negotiation of this Cross APR Sales Agreem 4. Confidentiality of Settlement 4.1 The Parties agree to keep confidential the terms of Sections 2.5, 2.6, 2.7 and 2.8 of this Cross APR Sales Agreement and not to disclose any of the terms, or the negotiations leading to those terms, provided, however, that the Parties may make such disclosures as are reasonably necessary for the purpose of complying with, and only to the extent required by, any federal or state law or regulation (including to tax preparers and accountants for financial statement and tax purposes) or for the, purpose of complying with due diligence requests propounded on ACS or WP by potential investors, lenders or potential buyers (and their respective agents). Further, within their respective APRs, the parties may inform customers (other than (for WP) the ACS Exceptions defined above or (for ACS) the WP Exceptions defined above) or end-users, or potential customers or potential end-users, that they are the sole authorized supplier of Superior Walls Products, and they may further inform such, customers or end-users of the fact of this Cross APR Sales Agreement to the extent necessary to avoid any potential confusion on the part of such customers or end-users with respect to the subject of this Cross APR Sales Agreement. 4.2 The Parties acknowledge that the provisions of Section 4.1 of this Cross APR Sales Agreement are a material inducement for the Parties to enter into this Cross APR Sales 11 ent. Agreement, and that any violation of the terms of Section 4.1 shall constitute a material• breach of this Cross APR Sales Agreement. 5. Breach and Damages 5.1 In the event that a Party breaches a promise made in or obligation created by this Cross APR Sales Agreement and that Party shall prevail against the other Party in a court proceeding, the prevailing party shall also be awarded its reasonable attorneys' fees and costs. 6. Mutual Releases 6.1 In consideration, of the obligations each has undertaken as set forth above, ACS (for itself and, to the extent permitted by law, on behalf of all other ACS Released Parties as herein defined) hereby releases and forever discharges WP, and its current and former predecessors, successors, 'heirs and assigns, and its and their current and former subsidiaries, parent companies, affiliates, divisions, departments, agents, attorneys, representatives, employees, owners, shareholders, partners, members, officers and directors (the "WP Released Parties"), from any and all suits, claims, controversies, rights, promises, debts, liabilities, demands, obligations, costs, expenses, actionsand causes of action of every nature, character, and description, in law or in equity, whether presently known or unknown, vested or contingent, suspected or unsuspected, related or unrelated to this subject matter as to law or facts or both, which ACS and/or any of the ACS Released Parties now own or hold or have at any time heretofore owned or held, or may at any time own or hold against any of the WP Released Parties, which arose prior to the date of this Cross APR Sales Agreement. 6.2 In consideration of the obligations each has undertaken as set forth above, WP (for itself and, to the extent permitted by law, on behalf of all other WP Released Parties as herein defined) hereby releases and forever discharges ACS, its current and former predecessors, 12 successors, heirs and assigns, and its and their current and former subsidiaries, parent companies, affiliates, divisions, departments, agents, attorneys, representatives, employees, owners, shareholders, partners, members, officers and directors (the "ACS Released Parties"), from any and all suits, claims, controversies, rights, promises, debts, liabilities, demands, obligations, costs, expenses, actions and causes of action of every nature, character, and description, in law or ill equity, whether presently known or unknown, vested or contingent, suspected or unsuspected, related or unrelated to this subject matter as to law or facts or both, which ACS and/or any of the ACS Released Parties now own or hold or have at any time heretofore owned or held, or may at any time own or hold against any of the ACS Released Parties, which arose prior to the date of this Cross APR Sales Agreement. 6.3 ACS and WP each represent and warrant that they have not heretofore assigned or transferred or purported to assign or transfer to any person, firm or corporation whatsoever, any claim, controversy, right, pro e, debt, liability, demand, obligation,, cost, expense, action or cause of action herein released. If there is any claim, controversy, right, promise, debt, liability, demand, obligation, cost, expense, action or cause of action based on or arising out of or in connection with any such transfer or assignment or purported transfer or assignment, the Party which made or purported to: make such transfer or assignment agrees to indemnify and hold the other Party harmless against such 'claim, controversy, right, promise; debt, liability, demand, obligation, cost, expense, action or cause of action, including reasonable attorneys' fees and costs incurred in connection therewith. 6.4 Nothing in this Section 6 (including its subparts) shall release, or be deemed to release, ACS, WP or SVVA from their obligations arising out of this Cross APR Sales Agreement. 13 6.5 ACS and WP expressly accept and assume the risk that the facts and/or the law pertaining to the claims released herein may change, or that the facts pertaining to the claims released herein may later be found to be different from that which is now known or believed by the Parties or their counsel to be true. This Cross APR Sales Agreement shall be and remain effective notwithstanding any such change or difference. 6.6 Each Party expressly acknowledges the possibility that it may have sustained losses or damages in addition to those already claimed regarding the subject matter herein. Each Party fully understands that unknown complications of which it is presently unaware from its loss or damages may arise in the future. Each Party expressly covenants that it is entering into this Cross APR Sales Agreement with full knowledge and understanding of these risks and uncertainties, and that it is nevertheless its full intent that the releases herein shall apply to any and all claims 'for damages or loss which are either known or unknown, and which may be subsequently discovered. Each Party expressly represents to those released that it is free of any duress. 6.7 This Cross APR Sales Agreement is a full and final compromise, settlement and release of disputed claims and is not intended to be, shall not constitute, and shall not be construed as an admission of the truth or correctness of any allegation made by any Party to the subject matter in dispute, or of the liability of any Party, person or entity, or of their respective agents, representatives, predecessors, successors, heirs, or assigns, any such liability being expressly denied. 7. General Terms 7.1 The Parties acknowledge that, in negotiating this Cross APR Sales Agreement, each has received advice from counsel of its choosing. Each of the Parties represents and 14 warrants that the individual signing this Cross APR Sales Agreement on its behalf has full authority to do so. In addition, each Party acknowledges that it has read and understands this Cross APR Saks Agreement and that the signatures below are entered voluntarily. 7.2 This Cross APR Sales Agreement may only be amended in writing, signed by all Parties hereto. 7.3 The Parties agree that the implied covenant of good faith and fair dealing shall apply to this Cross APR Sales Agreement. In all other respects, this Cross APR Saks Agreement and the making hereof shall be governed as to validity, interpretation, construction, effect, and in all other respects by the laws of the Commonwealth of Pennsylvania, which laws shall prevail in the event of any conflict of law, without regard to, and without giving effect to, the application of Pennsylvania choice of law rules. 7.4 This Cross APR Sales Agreement may be signed in counterparts and shall become effective upon its execution by all of the Parties, but its effective date shall be the date first above-written. 7.5 This Cross APR Sales Agreement shall be binding upon, and inure to the benefit of, the Parties hereto, and their respective agents, representatives, successors and assigns forever. 7.6 This Cross APR Sales Agreement constitutes the entire, full and complete agreement between the Parties hereto with respect to the subject matter hereof, and supersedes all prior agreements related to the subject matter hereof, no other representation having induced the Parties hereto to execute this Cross APR. Sales Agreement. In the event of any conflict between the terms of this Cross APR Sales Agreement and the ACS License Agreernent (as amended) and the WP License Agreement (as amended), the provisions of this Cross APR Sales Agreement shall control. 15 NOW THEREFORE, the Parties have entered into this Cross APR Sales Agreement on the date and year first written above. Dated: June 27, 2011 (1 Witness Dated,. Jttne.27 2011 Dated: June 27 2011 16 Advanced Concrete Systems, n Title: Dated: June27, 2011 Weaver Precast, Inc. By: Title: Dated t hitte4:27 , 201 I Dated: June 2 2011 EXHIBIT A AMENDMENT TO ADVANCED CONCRETE SYSTEMS, INC. LICENSE AGREEMENT This Amendment to Advanced Concrete S cense Agreement ("ACS zyth Amendment") is made and entered into this, h day o June 011, by and among Advanced Concrete Systems, Inc. ("ACS") and Superior Walls of America, Ltd. ("SWA"). (All persons and entities identified above are sometimes collectively referred to hereinafter as the "Parties".) RECITALS WHEREAS, ACS entered into a License Agreement with SWA, dated November 19, 2008 (the "ACS License Agreement"); WHEREAS, Weaver Precast, Inc. ("WP") entered into a License agreement with SWA dated May 19, 2009 (the "WP License Agreement"); WHEREAS, each of the ACS License Agreement and the WP License Agreement license to ACS and WP the right to operate a Licensed Business (as defined in each of the ACS License Agreement and the WP License Agreement) to manufacture, sell, and install Superior Walls Products for use in residential, as well as non-residential construction projects, on an exclusive basis in a defined geographic area referred to in each of the ACS License Agreement and the WP License Agreement as the Area of Primary Responsibility or APR (the "APR"); WHEREAS, each of the ACS License Agreement and the WP License Agreement define "Superior Walls Products" as "foundation -related products sold under the Proprietary Marks ... which term shall also include the manufacturing, selling, transporting and installing of Superior Walls Products"; WHEREAS, each of the ACS License Agreement and the WP License Agreement contain an Exhibit B, which lists "Territory Exceptions" that permit ACS and WP to sell Superior Walls Products to the customers listed on Exhibit B, regardless of whether or not they 1 are within each of the Parties' respective APR's (as defined in each of ACS' and. WP's respective License Agreements); WHEREAS, each of ACS and WP have sold to parties listed on Exhibit B in the other Party's APR; WHEREAS, ACS and WP each desire to have the ability to sell Superior Walls Products to certain customers (with whom they respectively enjoy established business relationships) outside of their respective APR and within the other Party's APR; with the further understanding and agreement between ACS and WP that the provisions of the Cross. APR Sales Agreement are to be construed narrowly to achieve the specific sales that are expressly contemplated therein, and shall not be construed expansively in any manner that would permit either ACS or WP to expand their sales opportunities or actual sales in the other Party's APR beyond what is expressly permitted in the Cross APR Sales Agreement; WHEREAS, ACS and WP desire that Exhibit B be eliminated from the ACS License Agreement and the WP License Agreement; WHEREAS, SWA is willing to amend the ACS License Agreement and the WP License Agreement to incorporate the provisions of the Cross APR Sales Agreement into each of the ACS License Agreement and the. WP License Agreement. NOW, THEREFORE, in consideration of, and as a condition to entering into the Cross APR Sales Agreement, the undersigned hereby agree to be bound by the following terms and conditions of this ACS Amendment: 1. Exhibit B to the ACS License Agreement is hereby eliminated in its entirety. (See Cross APR Sales Agreement, Section 1.1.) :2 2.. ACS and SWA hereby acknowledge that Exhibit B of the ACS License Agreement shall no longer be in force or effect. (See Cross APR Sales Agreement, Section 1.1.) 3. The Parties hereby acknowledge the effectiveness and inclusion of the Cross APR Sales Agreement in the ACS License Agreement. (See Cross APR Sales Agreement, Section 1.1.) 4. The Cross APR Sales Agreement shall be construed as part of the ACS License Agreement. (See Cross APR Sales Agreement, Section 3.4.) 5. ACS is a direct and intended third -party beneficiary of the territorial limitation provisions of WP's amended license agreement with SWA. (See Cross APR Sales Agreement, Section 1.3.) NOW, THEREFORE, the Parties have entered into this ACS Amendment on the date and year first written above. Dated: June ,77, 2011 Dated: June 2-'7 , 2011 Advanced Concrete Systems, Inc. By: Title: Dated: June 2-72011 Sup Dated: June ,27, 2011 EXHIBIT A AMENDMENT TO WEAVER PRECAST, INC. LICENSE AGREEMENT This Amendment to Weaver Precast, Inc. License Agreement ("WP Amendment") is made and entered into this 24th day of June 2011, by and among Weaver Precast, Inc. ("WP") and Superior Walls of America, Ltd. ("SWA"). (All persons and entities identified above are sometimes collectively referred to hereinafter as the "Parties".) RECITALS WHEREAS, Advanced Concrete Systems, Inc. ("ACS") entered into a License Agreement with SWA, dated November 19, 2008 (the "ACS License Agreement"); WHEREAS, WP entered into a License agreement with SWA dated May 19, 2009 (the "WP License Agreement"); WHEREAS, each of the ACS License Agreement and the WP License Agreement license to ACS and WP the right to operate a Licensed Business (as defined in each of the ACS License Agreement and the WP License Agreement) to manufacture, sell, and install Superior Walls Products for use in residential, as well as non-residential construction projects, on an exclusive basis in a defined geographic area referred to in each of the ACS License Agreement and the WP License Agreement as the Area of Primary Responsibility or APR (the "APR"); WHEREAS, each of the ACS License Agreement and the WP License Agreement define "Superior Walls Products" as "foundation -related products sold under the Proprietary Marks ... which term shall also include the manufacturing, setting, transporting and installing of Superior Walls Products"; WHEREAS, each of the ACS License Agreement and the WP License Agreement contain an Exhibit B, which lists "Territory Exceptions" that permit ACS and WP to sell Superior Walls Products to the customers listed on Exhibit B, regardless of whether or not they are within each of the Parties' respective APR's (as defined in each of ACS' and WP's respective License Agreements); WHEREAS, each of ACS and WP have sold to parties "sted on Exhibit B in the other Party's APR; WHEREAS, ACS and WP each desire to have the ability to sell Superior Walls Products to certain customers (with whom they respectively enjoy established business relationships) outside of their respective APR and within the other Party's APR; with the further understanding and agreement between ACS and WP that the provisions of the Cross APR Sales Agreement are to be construed narrowly to achieve the specific sales that are expressly contemplated therein, and shall not be, construed expansively in any manner that would permit either ACS or WP to expand their sales opportunities or actual sales in the other Party's APR beyond what is expressly permitted in the Cross APRSalesI Agreement; WHEREAS, ACS and WP desire that Exhibit B be eliminated from h ACS License Agreement and the WP License Agreement; WHEREAS, SWA is willing to amend the ACS License Agreement And the WP License Agreement to incorporate the provisions of the Cross APR Sales Agreement into each of the ACS License Agreement and the WP License Agreement, NOW, THEREFORE, in consideration of, and as a condition to entering into the Cross APR Sales Agreement, the undersigned hereby agree to be bound by the following terms and conditions of this WP Amendment: Exhibit B to the WP License Agreementhereby eliminated in its entirety. (See Cross APR Sales Agreement, Section 1.2.) 2 2. WP and SWA hereby acknowledge that Exhibit B of the WP License Agreement shall no longer be in force or effect. (See Cross APR Sales Agreement, Section 1.2.) 3. The Parties hereby acknowledge the effectiveness and inclusion of the Cross APR Sales Agreement in the WP License Agreement. (See Cross APR Sales Agreement, Section 12) 4. The Cross APR Sales Agreement shall be construed as part of the WP License Agreement. (See Cross APR Sales Agreement, Section 3.4.) 5. WP is a direct and intended third -party beneficiary of the territorial limitation provisions of ACS' amended license agreement with SWA. (See Cross APR Sales Agreement, Section 1.3.) NOW, THEREFORE, the Parties have entered into this WP Amendment on the date and year first written above. Dated: JUneon , 2011 Dated: June 21 , 2011 Weaver Precast, Inc. By: Title: Dated: iun.2, 2011 3 Dated: June 217 , 2011 Superior mils License System Communication Date: February 21, 2014 From: Jim Costello To: Licensee Owners, Presidents & General Managers Topic: General License System Update Hang In There! The prolonged cold weather has made it an extremely hard winter for all of our producers — even the southern -most. We think of you and your set crews daily as we look at the weather reports around the system each morning. I am writing to bring you up to date on a number of issues important to our system: Precast Show Report As you know, I spoke, on behalf of the NPCA Building Products Committee, on the topic of Residential Precast Opportunities (the actual course name was "Precast Building Structures — A New Market Opportunity") at 8:00am on Saturday, February 15th. We had about 20 attendees and a lively Q&A session with a panel of three producers of residential products ranging from precast concrete floor and wall tiles, to countertops, fireplaces and outdoor kitchens, to our own foundation and wall products. Superior Walls was represented well on the panel by Matt Hicks of Northeast Precast. I thank John Ruga for sending Matt and his team to the NPCA meetings and Precast Show. Insurance Policy Review You will recall that at our September meeting I described that our experience with the Doan wrongful death lawsuit demonstrated that some insurance companies attempt to skirt the coverage we all think we have. We intend to have all of our policies reviewed by a specialist to ensure that you and SWA have the protections we all think we are paying for. We requested that you send (paper or electronic) copies of your liability policies to us (not just the declarations page or the certificate). We reiterated that request on January 15th and to -date we still have yet to receive 4/10. If you have not done so, please send your policy. Ui Wall Capability In SuperWalls We are in the final testing phase of being able to correctly draw the Ui wall in SuperWalls. This upgrade will support both the 4" and 6" Ui variations. We expect to be ready to release the program upgrade by the end of March. Census Data & Market Share Discussions The preliminary 2013 building permit data is now out and we are working through it. We look forward to visiting with each of you in the coming weeks to discuss the market in your area. You may access the data yourself at: http://socds.huduser.orq/permits/ JJCO2,202014 Exhibit 3 Clarification of APR Changes Within the context of our system's APR rules the following counties are now considered OPEN and any Licensee is welcome to sell and install product in them: Virginia Clarke, Frederick, Shenandoah, Warren, Rockingham, Page, Highland, Madison, Greene, Augusta. Pennsylvania — Berks, Bucks, Chester, Delaware, Lancaster, Lebanon, Montgomery, Philadelphia, York. Maryland — Anne Arundel, Baltimore, Carroll, Cecil, Harford, Howard. New York Bronx, Columbia, Dutchess, Greene, Kings, New York, Nassau, Orange, Putnam, Queens, Rockland, Suffolk, Sullivan, Ulster, Westchester Connecticut — Fairfield, Hartford, Litchfield, Middlesex, New Haven, New London, Tolland, Windham Rhode Island — Bristol, Kent, Newport, Providence, Washington Within the context of our system's APR rules the following counties are now considered CLOSED: Michigan — All counties. Royalty Reporting Accuracy In recent months there have been a number of inter -licensee disputes about cross-border sales. A closer investigation revealed that the alleged violations were actually the result of sloppy reporting of the county and state of the project locations. Please make your staff members aware that there are often counties with the same name but in neighboring states, and please strive to accurately report all jobs in their correct location. Uncorrected mistakes of this nature make for unnecessary disputes, wasted time adjudicating the disputes and ultimately, inaccurate system sales data which potentially leads to faulty decision making. SuperWalls annual Subscription Fee The 2014 annual subscription fee for the SuperWalls program was invoiced in January at the same cost as last year at $350/seat. As a heads -up, you should expect that it will increase in 2015. We will provide that cost by the end of the third quarter so that you may budget for it as you make planning decisions for 2015. • Alternative Foam Testing On Thursday, February 20th, BASF finally delivered the 5" Neopor with the fire-resistant coating and polyethylene film applied. This material along with other Neopor and two types of polyiso material is now at Advanced Concrete. Advanced will be casting the test panels as their schedule JJCO2202014 -1 2 allows, and we will fire test as soon as possible. Depending on the results of the fire testing, (which is to say: if the material passes the fire test) the next step will be to locate appropriate suppliers and see if the pricing provides an advantage. We will provide an update next Friday. 12' Xi Product Background: For a couple of years North Carolina has been working with us to R&D a 12' tall Xi wall. New Jersey and Collier Foundations have also installed a few projects. This past November, John Ruga suggested to me that it would be most helpful if we would devise an adjustable form that would go from 8'-2" to 12', with 4" increments from 10' through 12'. I challenged our Tech Department to develop it quickly, and on December 19, 2013 we hosted a meeting with Dave Varner, Pat McShane and John Ruga to show them a working prototype and to discuss the various aspects of a 12' product that need to be considered. A couple of weeks later we issued pricing for the form described above. Steve Martin also developed a system of corners and dividers that are adjustable in 4" increments. The first of those corners will be field tested in NJ starting next week. We are going to do some strength testing at Architectural Testing in York PA (the same company that did the Xi testing for the ESR, though they have now been sold to a larger testing company, Intertek.) We expect to receive a proposal and quote from them next week. This wall size will give our system a powerful competitive advantage, particularly for above -grade construction. Next week I will provide additional information about the project and a projected timeline and the various decisions that will still need to be made regarding it. Third Party Inspection Program Changes As we have discussed in recent months, the International Code Council is dictating changes to the third -party inspection programs of ICC -ES Evaluation Report holders. Unfortunately, they have been very slow and vague in identifying exactly what those changes are to be. In my opinion, the whole thing is a thinly veiled money grab — but they are in the driver's seat. For weeks we have been in ongoing conversations about the details with PFS and the ICC. I hope to be able to spell out the final form of the program in the next couple of weeks. Please call me if I may provide additional information about any of these topics. You may reach me on my mobile at any time. My extension under our new phone system is x2403 or direct dial at (717) 208-2403. -Jim JJCO2202014 3 ADVANCED CONCRETE SYSTEMS, INC., a Pennsylvania corporation, Plaintiff, v. WEAVER PRECAST, INC., a Pennsylvania corporation and SUPERIOR WALLS OF AMERICA, LTD., a Pennsylvania corporation, Defendants. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Case No. --rrk- CIVIL ACTION MOTION FOR PRO HAC VICE OF CARMEN CARUSO, ESQUIRE And now comes, Daniel L. Sullivan, Esquire and respectfully moves this Court pursuant to Pennsylvania Civil Procedure 1012.1 and Bar Admission Rule 301 for the admission pro hac vice of Carmen Caruso, Esquire, in this matter and in support thereof represents as follows: 1. I am an attorney at law duly admitted to practice before the Supreme Court of Pennsylvania and am a member in good standing of the bar of this Commonwealth. 2. I am a partner in the law firm of Saidis, Sullivan & Rogers and am counsel of record representing Plaintiff, Advanced Concrete Systems, Inc., in this matter. 3. Carmen Caruso, Esquire, is associated with me in this matter and seeks admission pro hac vice on behalf of Plaintiff, Advanced Concrete Systems, Inc. 4. Carmen Caruso, Esquire, is a partner of the law firm of Caruso & Roeder, LLC practicing at the firm's Chicago, Illinois office, and is dully qualified to practice in the courts of Illinois. The supporting verified statement of Carmen Caruso, Esquire, is attached hereto as Exhibit A. 5. After reasonable investigation, I reasonably believe that I am in a position to believe that Carmen D. Caruso, Esquire, a member of the law firm Caruso & Roeder, 77 West Washington Street, Suite 1000, Chicago, IL 60602, is a reputable and competent attorney and I recommend his admission pro hac vice in the above captioned matter. The supporting verified statement of Daniel L. Sullivan, Esquire, is attached hereto as Exhibit B. 6. Carmen Caruso, Esquire, has paid the $200.00 fee to the IOLTA Board as required by 204 PA Code §81.505. See Exhibit C. 7. The admission of Carmen Caruso, Esquire, pro hac vice will materially advance the presentation of this matter on behalf of Plaintiff, Advanced Concrete Systems, Inc., and will prejudice no one. WHEREFORE, Daniel L. Sullivan, Esquire, respectfully requests that this Court specially admit Carmen Caruso, Esquire, pro hac vice on behalf of Plaintiff, Advanced Concrete Systems, Inc., in this matter. Date: 11 14 Respectfully Submitted, SAIDIS, SULLIVAN & ROGERS DANIEL L. SULLIVAN Attorney I.D. #34548 26 West High Street Carlisle, PA 17013 Phone: (717) 243-6222 Email: dsullivan@ssr-attornevs.com ADVANCED CONCRETE SYSTEMS, INC., a Pennsylvania corporation, Plaintiff, v. WEAVER PRECAST, INC., a Pennsylvania corporation and SUPERIOR WALLS OF AMERICA, LTD., a Pennsylvania corporation, Defendants. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Case No. CIVIL ACTION VERIFIED STATEMENT I, Carmen Caruso, Esquire, hereby submit the following verified statement in support of my admission pro hac vice to the bar of the Commonwealth of Pennsylvania: 1. I have been licensed to practice law in the following jurisdictions: the State of Illinois. My State of Illinois Bar Admission Number is: 6189462. I have never been suspended, disbarred or otherwise disciplined. I am not currently subject to any disciplinary proceedings. 2. I am currently not admitted pro hac vice in any courts of record in the Commonwealth of Pennsylvania. 3 I shall comply with and be bound by the applicable statutes, case law and procedural rules of the Commonwealth of Pennsylvania, including the Professional Rules of Conduct. 4. I submit to the jurisdiction of the Pennsylvania courts and the Pennsylvania Disciplinary Board with respect to acts and omissions occurring during my appearance in this matter. 5. I consent to the =appointment of my sponsor, Daniel L. Sullivan, Esquire, as the agent upon whom service of process shall be made for all actions, including disciplinary actions, that may arise out of the practice of law in the matter for which admission pro hat vice is sought. I verify that the statements made herein are true and correct 'to the best of my information, knowledge and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904; relating to tinsworn falsifications to authorities. Carmen D. Caruso CARUSO & ROEDER LLC 77 West Washington Street Suite 1900 Chicago, Illinois 60602 Firm: (312) 626-1160 E -Fax: (312) 873-4348 E-mail: cdc@carusoroederlaw.com Cook County No. 57553 Carmen Caruso, Esquire ADVANCED CONCRETE SYSTEMS, INC., a Pennsylvania corporation, Plaintiff, V. WEAVER PRECAST, INC., a Pennsylvania corporation and SUPERIOR WALLS OF AMERICA, LTD., a Pennsylvania corporation, Defendants. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Case No. CIVIL ACTION VERIFIED STATEMENT I, Daniel L. Sullivan, Esquire, hereby submit the following verified statement in support of my admission of Carmen D. Caruso, Esquire pro hac vice to the bar of the Commonwealth of Pennsylvania: 1. After reasonable investigation, I reasonably believe that I am in a position to believe that Carmen D. Caruso, Esquire, a member of the law firm Caruso & Roeder, 77 West Washington Street, Suite 1000, Chicago, IL 60602, is a reputable and competent attorney and I recommend his admission pro hac vice in the above captioned matter. 2. Other than Attorney Caruso, I am not presently acting as a sponsor for any candidate for admission pro hac vice to the bar of Commonwealth of Pennsylvania. 3. Any proceeds from any settlement or award in this cause of action shall be received, held, distributed and accounted for in accordance with Rule 1.15 of the Pennsylvania Rules of Professional Conduct, including the IOLTA provisions thereof, if applicable. I verify that the statements made herein are true and correct to the best of my information, knowledge and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsifications to authorities. Date: 11y1)L{�-- Daniel L. Sullivan, Esquire Payment Receipt https://secure.authorize.net/gateway/transact.dll Baer r - I Thank you for your order! You may print this receipt page for your records. A receipt has also been emailed to you. PA Interest on Lawyers Trust Account Board Return to the IOLTA PA Pro Hac Vice Website 9, Merchant: Description: Date/Time: Customer ID: yArg, Pennsylvania Interest on Lawyers Trust Account Board Pro Hac Vice Application Fee 1I -Nov -2o14 11:35:43 EST ILIL ARDC ATTY NO: 6 Invoice Number: PHV20141111112609 Billing Information Ellyn Caruso 9931 S. Longwood Drive Chicago, IL 606043 cdc@carusoroederlaw.com Phone: 312-720-4539 Date/Time: Transaction ID: Authorization Code: Payment Method: 11 -Nov -2014 11:35:43 EST 6656894571 o6316C Visa ****69o5 Total: US $202.75 The total includes a $2.75 convenience fee. 1 of 1 11/11/2014 10:36 AM ADVANCED CONCRETE SYSTEMS, INC., a Pennsylvania corporation, Plaintiff, v. WEAVER PRECAST, INC., a Pennsylvania corporation and SUPERIOR WALLS OF AMERICA, LTD., a Pennsylvania corporation, Defendants. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Case No. %L%66 (,11 CIVIL ACTION ORDER OF COURT ik AND NOW, this 1, 1 day of M (hi , 2014, on consideration of the Motion of Daniel L. Sullivan, Esquire, for pro hac vice admission of Carmen Caruso, Esquire, on behalf of Plaintiff, Advanced Concrete Systems, Inc., in this matter, and for good cause shown, it is hereby ORDERED: 1. That Carmen Caruso, Esquire be and hereby is admitted pro hac vice to the Bar of the Commonwealth of Pennsylvania under Pennsylvania Bar Admission Rule 301, as co -counsel on behalf of Plaintiff, Advanced Concrete Systems, Inc., in this matter; 2. That Carmen Caruso, Esquire shall abide by the rules of this court, including all disciplinary rules; 3. That Carmen Caruso, Esquire, shall immediately notify this Court of any matter affecting his standing at the bar of any other court where he may be admitted to practice; and 4. Daniel L. Sullivan, Esquire, the moving party herein, shall continue to be responsible as counsel of record for the conduct of this matter on behalf of Plaintiff, Advanced Concrete Systems, Inc. bailie % L, �SULII,1UGL & y 10 ea v et Pre e s-/ 'up ;©r Walls' or Ales, c4 car Y°1 A't 121/6 L. Y� By the Court: C) T ) e rri Q3 Y rn SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson SheriffP . n I ��i ` �' R fS O � �� t.^C1I 1 k,} IFi f n a Jody S Smith Chief Deputy Richard W Stewart Solicitor OFFICE OF TV:E. $HF.RIFF Hitt DEC 15 Pil 3: 22 CUMBERLAND CCMTY PENNSYLVANIA Advanced Concrete Systems, Inc. vs. Weaver Precast, Inc. (et al.) Case Number 2014-6621 SHERIFF'S RETURN OF SERVICE 11/14/2014 Sheriff Ronny R Anderson, being duly sworn according to law, states he made diligent search and inquiry for the within named Defendant to wit: Weaver Precast, Inc., but was unable to locate the Defendant in the Sheriffs bailiwick. The Sheriff therefore deputizes the Sheriff of Lancaster, Pennsylvania to serve the within Complaint & Notice according to law. 11/14/2014 Sheriff Ronny R Anderson, being duly sworn according to law, states he made diligent search and inquiry for the within named Defendant to wit: Superior Walls of America, LTD, but was unable to locate the Defendant in the Sheriffs bailiwick. The Sheriff therefore deputizes the Sheriff of Lancaster, Pennsylvania to serve the within Complaint & Notice according to law. 11/26/2014 10:58 AM - The requested Complaint & Notice served by the Sheriff of Lancaster County upon Keith Weller, CFO, who accepted for Superior Walls of America, LTD, at 937 East Earl Road, New Holland, PA 17557. Mark S. Reese, Sheriff, Return of Service attached to and made part of the within record. 11/26/2014 10:58 AM - The requested Complaint & Notice served by the Sheriff of Lancaster County upon Keith Weller, CFO, who accepted for Weaver Precast, Inc., at 824 East Main Street, Ephrata, PA 17522. Mark S. Reese, Sheriff, Return of Service attached to and made part of the within record. SHERIFF COST: $59.65 SO ANSWERS, December 10, 2014 RONF'(? R ANDERSON, SHERIFF (c) CountySuito Sheriff, Teleosoft, Inc. Mark S. Reese Sheriff SHERIFF'S OFFICE OF LANCASTER COUNTY �,. �,QNLRIfq ~fir" Brad Harris Solicitor Charles Hamilton c r James Montanez Chief Deputy Lieutenant ADVANCED CONCRETE SYSTEMS, INC vs. SUPERIOR WALLS OF AMERICA, LTD (et al.) Case Number 2014-6621 SHERIFF'S RETURN OF SERVICE 11/26/2014 10:58 AM - SERVED THE COMPLAINT & NOTICE BY HANDING A COPY TO KEITH WELLER (CFO), WHO ACCEPTED AS "ADULT PERSON IN CHARGE" FOR SUPERIOR WALLS OF AMERICA, LTD AT 937 EAST EARL ROAD, NEW HOLLAND, PA 17557. SO ANSWERS: DEPUTY TIMOTHY STAUFFER, DEPUTY SHERIFF OF LANCASTER COUNTY, PA. TIMOTHY STAUFFER, DEPUTY 12/05/2014 03:07 PM - SERVED THE COMPLAINT & NOTICE BY HANDING A COPY TO ERICA WEAVER (ASSISTANT TREASURER), WHO ACCEPTED AS "ADULT PERSON IN CHARGE" FOR WEAVER PRECAST, INC AT 824 EAST MAIN STREET, EPHRATA, PA 17522. SO ANSWERS: DEPUTY CARYN BAUMGARDNER, DEPUTY SHERIFF OF LANCASTER COUNTY, PA. SHERIFF COST $88.62 CARYN BAUMGARDNER, DEPUTY SO ANSWERS, Coil December 09, 2014 MARK S. REESE, SHERIFF COSTS DATE CATEGORY MEMO CHK # DEBIT CREDIT 11/21/2014 Advance Fee Advance Fee 36207 $0.00 $150.00 11/21/2014 Receiving, Docketing & Return $9.00 $0.00 11/21/2014 Service $9.00 $0.00 11/21/2014 Affidavit $2.50 $0.00 11/21/2014 Deputy Time 2X $20.00 $0.00 11/21/2014 Copies 2X $12.00 $0.00 11/21/2014 Service (Additional Defendant) $6.00 $0.00 11/21/2014 Affidavit - Additional Fees $1.00 $0.00 11/26/2014 Service Mileage $14.56 $0.00 12/05/2014 Service Mileage $14.56 $0.00 12/09/2014 Refund $61.38 $0.00 BALANCE: $150.00 $150.00 $0.00 Plaintiff Attorney: SAIDIS SULLIVAN & ROGERS, 937 EAST EARL ROAD, NEW HOLLAND, PA 17557 (c) CountySuite Sheriff, Teleosoft, Inc. ADVANCED CONCRETE SYSTEMS, : IN THE COURT OF COMMON PLEAS OF INC., a Pennsylvania corporation, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. WEAVER PRECAST, INC., a Pennsylvania corporation, and SUPERIOR WALLS OF AMERICA, LTD., a Pennsylvania corporation, Defendants . Case No. 14-6621 : CIVIL ACTION ANSWER WITH NEW MATTER AND COUNTERCLAIM OF WEAVER PRECAST, INC. t) a Defendant, Weaver Precast, Inc. ("Weaver Precast"), files the following wer n r n C7 t,_ E,;x. r -,.. with New Matter and Counterclaim. `'_..;.- c,„, ANSWER (7, _ C. tl-C) 1. Admitted. r;.) 2. Admitted. 3. It is admitted that Defendant Superior Walls of America, Ltd. ("SWA") is a Pennsylvania corporation with its principal place of business at 937 East Earl Road, New Holland, Pennsylvania 17557. Weaver Precast is without sufficient knowledge or information to form a belief as to the truth of the remaining averments in paragraph 3. 4. Paragraph 4 states a conclusion of law to which no answer is required. 5. Paragraph 5 states a conclusion of law to which no answer is required. 6. Admitted in part. It is admitted that Advanced Concrete Systems, Inc. ("ACS") entered into a license agreement with SWA on November 19, 2008. Weaver Precast is without sufficient knowledge or information to form a belief as to the truth of the remaining averments in paragraph 6. 1 SLI 1344237v1 007977.00028 C__ `7 7. Admitted in part. It is admitted that Weaver Precast is a licensee of SWA and that Weaver Precast operates under a License Agreement with SWA dated May 19, 2009. It is also admitted that portions of Weaver Precast's APR are contiguous to portions of ACS's APR. Without further definition of the phrase "substantially identical," Weaver Precast is without sufficient knowledge or information to form a belief as to the truth of the remaining averments in paragraph 7. 8. It is admitted that paragraph 8 accurately quotes Section 5.16 of the document attached to the Complaint as Exhibit 1. 9. It is admitted that paragraph 9 accurately quotes Section 1.3.2 of the document attached to the Complaint as Exhibit 1. 10. It is admitted that paragraph 10 accurately quotes Section 7.12.2 of the document attached to the Complaint as Exhibit 1. 11. Admitted. 12. Admitted. 13. Admitted in part. It is admitted that paragraph 13 accurately quotes portions of the Cross APR Sales Agreement. Without further definition of the phrase "exclusively protected APR", Weaver Precast is without sufficient information to form a belief with respect to the remaining averments in paragraph 13. 14. The Cross APR Sales Agreement is a document which speaks for itself. It is denied that the averments in paragraph 14 completely or accurately characterize the Cross APR Sales Agreement. 15. It is admitted that paragraph 15 accurately quotes a portion of Section 1.3 of the Cross APR Sales Agreement. 2 SLI 1344237v1 007977.00028 16. The Cross APR Sales Agreement is a document which speaks for itself. It is denied that the averments in paragraph 16 completely or accurately characterize the Cross APR Sales Agreement. 17. To the extent paragraph 17 characterizes the Cross APR Sales Agreement, it is specifically denied that those averments completely or accurately characterize the Cross APR Sales Agreement. To the extent the averments in paragraph 17 relate to ACS's intent with respect to entering into the Cross APR Sales Agreement, Weaver Precast is without sufficient knowledge or information to form a belief as to the truth of those averments. To the extent the averments in paragraph 17 relate to Weaver Precast's intent or expectations with respect to entering into the Cross APR Sales Agreement, they are specifically denied. To the contrary, the allegations in paragraph 17 do not accurately characterize Weaver Precast's intent or expectations with respect to the Cross APR Sales Agreement. 18. It is admitted that SWA issued a "License System Communication" to Licensee Owners, Presidents & General Managers on February 21, 2014, a copy of which is attached to the Complaint as Exhibit 3. It is further admitted that paragraph 18 accurately quotes from select portions of that document. It is specifically denied that paragraph 18 completely or accurately characterizes the document attached as Exhibit 3. 19. Admitted in part. It is admitted that all of the Pennsylvania and Maryland counties set forth in the in paragraph 18 of the complaint are part of Weaver Precast's APR. Without further definition of the phrase "exclusively protected APR," Weaver Precast is without sufficient information to form a belief with respect to the remaining averments in paragraph 18. 20. Without further definition of the phrases "direct and unintended result," "authority expressly granted" and "any limitations or restrictions," Weaver Precast is without 3 SL 1 1344237v1 007977.00028 sufficient knowledge or information to form a belief as to the truth of the averments in paragraph 20. Additionally, the averment in paragraph 20 that the fundamental purpose of the Cross APR Sales Agreement has been frustrated is a conclusion of law to which no answer is required. required. required. required. required. 21. The averments in paragraph 21 are conclusions of law to which no answer is 22. The averments in paragraph 22 are conclusions of law to which no answer is 23. The averments in paragraph 23 are conclusions of law to which no answer is 24. The averments in paragraph 24 are conclusions of law to which no answer is 25. It is admitted that paragraph 25 accurately quotes a portion of Section 5.1 of the Cross APR Sales Agreement. 26, Paragraph 26 is a prayer for relief to which no answer is required. COUNT I 27. Weaver Precast incorporates by reference the answers to paragraphs 1 through 26, above, as if set forth here. 28. Admitted in part and denied in part. It is admitted that ACS has informed Weaver Precast that ACS believes Weaver Precast has breached the Cross APR Sales Agreement. It is specifically denied that Weaver Precast has breached the Cross APR Sales Agreement. Additionally, whether or not the Cross APR Sales Agreement has been breached by Weaver Precast is a conclusion of law to which no answer is required. 4 SLI 1344237v1 007977.00028 29. Admitted in part and denied in part. It is admitted that Weaver Precast has denied the allegations by ACS that Weaver Precast has breached the Cross APR Sales Agreement. It is specifically denied that Weaver Precast no longer has the APR that existed when that Agreement was signed. To the contrary, Weaver Precast continues to have the same APR with the same protections that it had when the Cross APR Sales Agreement was signed. 30. Paragraph 30 states a conclusion of law to which no answer is required. 31. Paragraph 31 states a conclusion of law to which no answer is required. 32. Paragraph 32 avers conclusions of law to which no answer is required. 33. Paragraph 33 is a prayer for relief to which no answer is required. WHEREFORE, it is respectfully requested that the Court deny the relief requested by plaintiff in Count I of the complaint, and awards attorneys' fees to Weaver Precast. COUNT H 34. Weaver Precast incorporates by reference its answers to paragraphs 1 through 33, above, as if set forth here. 35. Paragraph 35 avers conclusions of law to which no answer is required. 36. Paragraph 36 avers conclusions of law to which no answer is required. 37. Paragraph 37 avers conclusions of law to which no answer is required. 38. Paragraph 38 avers conclusions of law to which no answer is required. WHEREFORE, it is respectfully requested that the Court deny the relief requested by plaintiff in Count II of the complaint, and awards attorneys' fees to Weaver Precast. COUNT HI 39. Weaver Precast incorporates its answers to paragraphs 1 through 38, above, as if fully set forth here. 40. Paragraph 40 sets forth conclusions of law to which no answer is required. SL 1 5 1344237v1 007977.00028 41. Weaver Precast is without sufficient knowledge or information to form a belief as to the averments in paragraph 41. WHEREFORE, it is respectfully requested that the Court deny the relief requested by plaintiff in Count III of the complaint, and awards attorneys' fees to Weaver Precast. NEW MATTER 42. The equitable relief requested by plaintiff should be denied because plaintiff has unclean hands. 43. The equitable relief requested by plaintiff should be denied because plaintiff is not at risk of immediate irreparable harm. 44. The contractual relief requested by plaintiff should be denied because plaintiff has materially breached the Cross APR Sales Agreement. 45. In Section 3.1 of the Cross APR Sales Agreement, ACS and Weaver Precast agreed that the Cross APR Sales Agreement "shall remain in full force and effect, unless subsequently agreed by the Parties in writing, for so long as (a) both ACS and WP, or any person or entity with whom ACS and/or WP transfer their interests as permitted by the ACS License Agreement and the WP License Agreement, remain licensees of SWA and/or subject to the post -termination non -compete provisions of their License Agreements with SWA; and (b) the amendments to the License Agreements required by Sections 1.1 and 1.2 remain in effect." 46. Both ACS and WP remain licensees of SWA. 47. The amendments to the License Agreements required by Sections 1.1 and 1.2 of the Cross APR Sales Agreement remain in effect. 48. Accordingly, the Cross APR Sales Agreement has not been terminated, and may not be terminated, in accordance with the terms agreed to by ACS and Weaver Precast. 6 SLI 1344237v1 007977.00028 49. The Cross APR Sales Agreement does not fail for lack of consideration. WHEREFORE, it is respectfully requested that the Court deny the relief requested by plaintiff in the complaint. COUNTERCLAIM COUNT I — BREACH OF CONTRACT 50. Section 2.3 of the Cross APR Sales Agreement provides that ACS may sell Superior Walls Products within Weaver Precast's APR solely to Foremost Industries, Inc., Farinelli Construction, Inc., Brookside Homes, Inc., Barry A. Bechtel General Contractor, Inc., Barry A. Bechtel, Inc., BB Inc., and Foundations by BB Inc. (collectively, "Permitted Customers"). 51. Section 2.3 of the Cross APR Sales Agreement further provides that "ACS will not be permitted to sell Superior Walls Products to any other customer or end-user within WP's APR without the express written permission of WP." 52. ACS has sold Superior Walls Products to customers other than Permitted Customers within Weaver Precast's APR without the express written permission of Weaver Precast. 53. By doing so, ACS has breached the Cross APR Sales Agreement. 54. ACS's breach of the Cross APR Sales Agreement has caused Weaver Precast to lose profits. 55. Section 5.1 of the Cross APR Sales Agreement provides "In the event a Party breaches a promise made in or obligation created by this Cross APR Sales Agreement and that Party shall prevail against the other Party in a court proceeding, the prevailing party shall also be awarded its reasonable attorney's fees and costs." SL1 1344237v1 007977.00028 WHEREFORE, Weaver Precast respectfully requests that the Court enter a judgment in its favor in an amount equal to the profits it has lost as a result of ACS's breach of the Cross APR Sales Agreement, plus its reasonable attorney's fees and costs, and such other relief as the Court deems appropriate. Dated: January 12, 2015 SLI 134423 7v 1 007977.00028 STEVENS & LEE By ZtroL ,� etiC i��`/ G. Thomp Attorney I.D. No. 32649 111 North Sixth Street P.O. Box 679 Reading, Pennsylvania 19603 (610) 478-2000 gtb@stevenslee.com Attorneys for Defendant Weaver Precast, Inc. 8 174 VERIFICATION 175 176 I, Gary Weaver, President of Weaver Precast, Inc., verify the attached Answer 177 With New Matter and Counterclaim is based upon the facts of which I have personal knowledge 178 or information furnished to me by counsel; that the language of the document is that of counsel 179 and not my own; and that the facts set forth in the foregoing document are true and correct to the 180 best of my knowledge, information and belief. I understand that the statements herein are made 181 subject to the penalties of 18 Pa. C.S.A, § 4904 relating to unsworn falsification to authorities. 182 183 ,,,,,,,,,tt.Zie,,...---- 184 Date: January 12, 2015 185 Gary Weaver, President 186 Weaver Precast, Inc. 9 01/09/2015 SLI 1344237v1 007977.00028 CERTIFICATE OF SERVICE I, G. THOMPSON BELL, III, ESQUIRE, certify that on this date, I served a certified true and correct copy of the foregoing ANSWER WITH NEW MATTER AND COUNTERCLAIM upon the following counsel of record, by depositing the same in the United States mail, postage prepaid, addressed as follows: Carmen D. Caruso Caruso & Roeder LLC 77 West Washington Street Suite 1900 Chicago, IL 60602 Date: January 12, 2015 10 SLI 1344237v 1007977.00028 G. Thompson Bell, III &if ADVANCED CONCRETE SYSTEMS, : IN THE COURT OF COMMON PLEAS OF INC., a Pennsylvania corporation, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. WEAVER PRECAST, INC., a Pennsylvania corporation, and SUPERIOR WALLS OF AMERICA, LTD., a Pennsylvania corporation, : Case No. 14-6621 : CIVIL ACTION Defendants AMENDED CERTIFICATE OF SERVICE I, G. THOMPSON BELL, III, ESQUIRE, certify that on this date, I served a c - Rr r\) certified true and correct copy of the ANSWER WITH NEW MATTER AND COUNTERCLAIM OF WEAVER PRECAST, INC. upon the following counsel of record, by depositing the same in the United States mail, postage prepaid, addressed as follows: Carmen D. Caruso Caruso & Roeder LLC 77 West Washington Street Suite 1900 Chicago, IL 60602 Daniel L. Sullivan Saidis, Sullivan & Rogers 26 W. High Street Carlisle, PA 17013 Date: January 12, 2015 1 SL l 1344741v1 007977.00028 G. Thompson Belr, III