Exhibit 10.6
AMENDED AND RESTATED TECHNOLOGY LICENSE AGREEMENT
This Amended and Restated Technology License Agreement (the
"Agreement") is made and entered into June 21, 2004, between Bio-Products
International, Inc. ("Bio-Products"), a company incorporated under the laws of
the State of Alabama (the "Licensor"), and World Waste Technologies, Inc. (WWT),
a company incorporated under the laws of the State of California (the
"Licensee") (the Licensor and Licensee may hereinafter be either individually
referred to as the "Party" or collectively referred to as the "Parties").
PREMISES:
Whereas, Xx. Xxxxxxx X. Xxxx ("Xxxx"), in his continuous capacity as an
employee of the University of Alabama in Huntsville ("UAH"), developed certain
proprietary intellectual property, patented processes, and patent pending
processes for the volume reduction, separation, recovery, and recycling of
various components of waste materials, including without limitation, Municipal
Solid Waste ("MSW"), which technology has been reduced to U.S. Patent No.
6,306,248 (the "U.S. Patent") and Patent Cooperation Treaty, International
Application No. PCT/US01/50049 (the "PCT") (collectively, the "UAH Technology").
The UAH Technology constitutes the first of the two parts of the "Technology"
(as defined herein). Xxxx is also a major stockholder, President and CEO of
Bio-Products;
Whereas, pursuant to that certain Amended and Restated License
Agreement, effective August 18, 2003, which supersedes and replaces the original
license agreement dated November 13, 1992, which was amended effective November
5, 1997 and amended again effective August 31, 1999, between UAH and
Bio-Products (the "Amended and Restated UAH License") (a complete copy of which
is attached as Exhibit A), UAH granted an exclusive worldwide license to
Bio-Products covering the UAH Technology, including the rights to make, have
made, use, lease and sell certain products, and to practice certain processes,
and to license some or all of the rights granted to others, such products and
processes being more specifically defined in the UAH License;
Whereas, Xxxxxx X. Xxxxxx ("Xxxxxx") developed certain proprietary
intellectual property, equipment designs, and process operating procedures
related to the UAH Technology, including the expertise and know-how for
fabrication and continuous operation of a small waste reduction process plant at
a commercial sanitary landfill for a period of eighteen months (collectively,
the "Malley Technology"). Malley has assigned all rights to the Malley
Technology to Bio-Products (a complete copy of the Amended and Restated Stock
Purchase and Assignment Agreement is attached as Exhibit B). The Malley
Technology constitutes the second of the two parts of the "Technology" (as
defined herein). Malley is also a stockholder and a Vice President of
Bio-Products;
Whereas, the original Technology License Agreement, dated June 21,
2002, was between Bio-Products and World Waste Holdings, Inc. (WWHI),
incorporated under international law in Anguilla, British West Indies, and WWHI
assigned the said Technology License Agreement to World Waste of America, Inc.
(WWA), a company incorporated under the laws of the State of California,
effective May 12, 2003 (a complete copy of which is attached as Exhibit C);
Exhibit 10.6 - 1
Whereas, WWA and all of its assets, including the June 21, 2002
Technology License Agreement with Bio-Products, was acquired by Waste Solutions,
Inc. (WSI), a California corporation, in a merger and reorganization in which
WWA became a wholly owned subsidiary of WSI, dated March 22, 2004 (a complete
copy of which is attached as Exhibit D);
Whereas, WSI filed a Certificate of Amendment of Articles of
Incorporation to the Secretary of State of the State of California changing the
name of the corporation to World Waste Technologies, Inc. (WWT) on March 24,
2004 (a complete copy of which is attached as Exhibit E);
Whereas, Bio-Products desires to enter into a license agreement with
the Licensee to provide the Technology and future improvements for the
construction and operation of commercial scale municipal solid waste processing
and recycling facilities subject to the terms and conditions set forth herein;
Whereas, the Licensee either has the financial resources, or has agreed
to use their best efforts to secure the financial resources, for the design,
engineering, and fabrication of processing equipment and facilities, acquisition
and permitting of construction sites, purchase of processing equipment,
construction and operation of processing facilities, and marketing and promotion
of commercial facilities that are compatible with the Technology;
Whereas, the Licensee desires to enter into a license agreement with
Bio-Products to use the Technology for commercial purposes upon the terms and
conditions hereinafter set forth;
Whereas, the Parties wish to amend and restate the original Technology
License Agreement, dated June 21, 2002, between the Parties as herein set forth,
which date shall remain the effective date of this Agreement; and
Now, therefore, in consideration of the premises and the mutual
covenants contained herein, the Parties hereto agree as follows:
ARTICLE I - DEFINITIONS
-----------------------
For purposes of this Agreement, the following words and phrases shall
have the following meanings:
1.1 "Technology" shall mean the inventions, technology, and proprietary
intellectual property and information developed by Bio-Products, Eley, Malley,
and UAH created or discovered prior to or after the effective date of this
Agreement, including, but not limited to, inventions, processes, process
operating procedures and discoveries, patents, patent applications, trade
secrets, developments, facility designs, equipment designs, works of authorship,
formulas, software programs, techniques, information, expertise, know-how, data,
research, mask works, all intellectual and industrial property rights of any
sort, all rights of integrity, disclosure and withdrawal, copyrights, trade
names and trademarks, which are related to the recycling, processing,
collection, storage, disposal, treatment, utilization or reduction of waste or
waste components or the conversion of cellulosic materials to fuels or other
materials or other use of cellulosic materials for the production of energy or
otherwise. Technology includes without limitation, the UAH Technology, the
Malley Technology, United States Patent Number 6,306,248 and Patent Cooperation
Treaty International Application Number PCT/US01/50049.
Exhibit 10.6 - 2
1.2 "Third Party" shall mean any person or entity other than
Bio-Products, Eley, Malley, UAH, the Licensee and sub-licensees of the Licensee.
1.3 "Operating Day" shall mean a day in which the facility (i)
processes waste equal to or in excess of the facility's daily design capacity;
or (ii) processes all of the waste brought to the facility for processing on
such day; or (iii) processes as much waste as allowed by any downstream
limitations, such as but not limited to, any limitations on the downstream
processing or disposal of the cellulosic product.
ARTICLE II - GRANT OF LICENSE
-----------------------------
2.1 Subject to the terms and conditions of this Agreement, Bio-Products
hereby grants a license to the Licensee to utilize the Technology to construct
and operate commercial scale municipal solid waste processing and recycling
facilities in the U.S.A.
(a) The license granted by Bio-Products to the Licensee under this
Agreement shall be exclusive in all of the States, territories, and
possessions of the USA with the following exceptions: (i) the State
of Arkansas shall remain exclusively licensed to Bio-Products; (ii)
Bio-Products shall retain the right to construct and operate
additional facilities utilizing the Technology in one or all of the
States of Alabama, Tennessee, Georgia, and/or South Carolina,
providing the total number of facilities in these States does not
exceed four (4); and (iii) for applications in which the cellulosic
product of waste, including Municipal Solid Waste ("MSW"),
processed utilizing the Technology is either used directly as a
fuel source or converted into an end product for energy production.
The above notwithstanding, upon written requests from the Licensee,
(i) Bio-Products shall grant site-specific sub-licenses to the
Licensee to construct and operate facilities utilizing the
Technology in the State of Arkansas, (ii) Bio-Products shall invite
the Licensee to participate in any or all of its four (4)
facilities outside of the State of Arkansas, and (iii) Bio-Products
shall grant site-specific sub-licenses to the Licensee for
applications in which the cellulosic product of waste, including
MSW, processed utilizing the Technology is either used directly as
a fuel source or converted into an end product for energy
production.
(b) For each facility to be constructed and operated under this
Agreement by the Licensee, a proposal on the economic feasibility
of the facility shall be prepared and submitted to Bio-Products for
review and comment. Bio-Products shall submit its comments in
writing to the Licensee in a timely manner, not to exceed sixty
(60) days. The Licensee shall, at its discretion, then grant a
site-specific sub-license to a USA entity (the "Sub-Licensee") that
shall own and/or operate the facility. Such sub-license agreement
shall be subject to the approval of Bio-Products, which approval
shall not be unreasonably withheld.
(c) As stated in Paragraph 2.1(a), Bio-Products shall retain the right
to construct and operate up to four (4) facilities utilizing the
Technology in the States of Alabama, Tennessee, Georgia, and South
Exhibit 10.6 - 3
Carolina. Bio-Products shall prepare and submit a proposal on the
economic feasibility of each facility to the Licensee for review
and comment, and the Licensee shall submit its comments in writing
to Bio-Products in a timely manner, not to exceed sixty (60) days.
Licensee shall at its discretion negotiate with Bio-Products either
to fully finance the Bio-Products facility, to partially
participate with a Bio-Products' Third Party financial entity in
financing the facility, or to not participate in the facility.
After negotiations are concluded, which shall not exceed sixty (60)
days from the date Bio-Products submits its proposal on the
economic feasibility, and regardless of whether the Licensee
participates, the Licensee shall, if requested by Bio-Products,
then grant site-specific sub-licenses to Bio-Products or an entity
in which Bio-Products owns controlling interest that shall own
and/or operate the facility. For Bio-Products facilities
constructed and operated under this provision and in which the
Licensee has no financial interest, Licensee shall be paid twenty
percent (20%) of any royalties paid to Bio-Products from the
operation of the facility. Bio-Products may construct and operate
up to a total of four (4) facilities in the States of Alabama,
Tennessee, Georgia, and South Carolina utilizing the Technology in
which the Licensee may have no financial interests while the
exclusivity of the Agreement with Licensee remains in force and
effect.
2.2 The term of this license shall extend from the effective date of
the original Technology License Agreement, which is June 21, 2002, for a period
of twenty (20) years, unless extended, terminated or replaced by agreement of
the Parties hereto, or unless otherwise extended or terminated, as elsewhere
provided in this Agreement. This Agreement shall be extended automatically until
the expiration date of the last patent issued to Bio-Products and/or UAH
covering the Technology.
2.3 Anything to the contrary contained elsewhere in this Agreement
notwithstanding, Bio-Products shall retain all of the exclusive rights granted
under the UAH License and all of the exclusive rights obtained by assignment
from Malley, including the worldwide exclusive right to license some or all of
its rights not granted to the Licensee under this Agreement to Third Parties to
utilize the Technology.
2.4 Subject to the terms and conditions of this Agreement, Bio-Products
hereby grants to Licensee the right to obtain an exclusive option or license to
utilize the Technology to construct and operate commercial scale MSW processing
and recycling facilities outside the United States upon the following
conditions:
(a) From the date of this Amended and Restated Technology License
Agreement, Bio-Products agrees to inform Licensee of any written
offers from a Third Party to obtain an exclusive option or license
for a foreign country not currently under an exclusive option or
license that is acceptable to Bio-Products. Licensee will be
granted a period of thirty (30) days from the date of notification
in which to elect to purchase the option or license for said
country on the same terms and conditions as contained in the
written offer from the Third party. If Licensee exercises its right
Exhibit 10.6 - 4
to purchase the option or license for said country during the
thirty (30) day period, then Bio-Products shall grant an exclusive
option or license to Licensee under the terms and conditions stated
in the written offer from the Third Party. If Licensee fails to
exercise its right to purchase the option or license within the
thirty (30) day period, then Bio-Products may grant an exclusive
option or license for said country to the Third Party making the
initial offer.
(b) The Licensee may from time to time submit a written request to
Bio-Products naming each country in which it wishes to obtain an
option for an exclusive license to utilize the Technology. If
Bio-Products has not previously granted an exclusive option or
license to or received a written offer from a Third Party for that
country, Bio-Products shall grant Licensee an option for an
exclusive license for that country upon the payment of fifteen
thousand dollars ($15,000) per country (the "Option Fee"). Said
Option Fee shall be due and payable within thirty (30) days after
Bio-Products has informed Licensee in writing that said country is
available. Licensee acknowledges that the deadline for submission
of foreign patent applications based on the PCT has expired,
therefore no patent protection can be provided to Licensee under
the PCT. However, Licensee agrees to pay all fees and expenses,
including, but not limited to, maintenance fees incurred in the
prosecution of future patents as may be necessary or useful in the
countries licensed to Licensee under this Paragraph 2.4. Such
option for an exclusive license granted to Licensee pursuant to
this Paragraph 2.4(b) shall be for a term of three (3) years from
the date that the Option Fee is paid to Bio-Products; provided the
Licensee has also paid all fees and expenses for patent prosecution
incurred during the term of the option and Licensee is in
compliance with all requirements under this Agreement for
exclusivity in the United States.
(c) At any time prior to the expiration of the term of an option for an
exclusive license to Licensee in any country under Paragraph 2.4
(b), the option may be converted to an exclusive license upon
payment by Licensee to Bio-Products of a license fee of eighty-five
thousand dollars ($85,000) per country, in addition to the above
Option Fee and any patent prosecution fees and expenses. Licensee
shall also continue to pay all fees and expenses, including, but
not limited to, maintenance fees incurred in the prosecution of
patents as may be necessary or useful in the country licensed to
Licensee under this Paragraph 2.4.
(d) For each country exclusively licensed to Licensee under this
Paragraph 2.4, the terms and conditions set forth elsewhere in this
Agreement shall apply and Licensee shall pay royalties, bonuses,
and fees to Bio-Products in accordance with Article III, excluding
Paragraph 3.1, and all waste processing facilities both in the
United States and outside the United States shall be combined on a
cumulative basis for purposes of calculating all payments due to
Bio-Products, unless another financial arrangement is mutually
agreed to by the Parties.
Exhibit 10.6 - 5
ARTICLE III - FEES, ROYALTIES, AND OTHER CONSIDERATION
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3.1 The Licensee shall pay to Bio-Products a one time Technology
licensing fee of Three Hundred Fifty Thousand Dollars ($350,000). Bio-Products
acknowledges receipt of payments in the sum of One Hundred Eighty Two Thousand
Five Hundred Dollars ($182,500). The remaining balance of One Hundred Sixty
Seven Thousand Five Hundred Dollars ($167,500) shall be paid within twenty-six
(26) months from the effective date of this Agreement, but no later than August
21, 2004. Payments of said fee shall be by either wire transfer to a
Bio-Products bank account, cashier's check, or other bank certified negotiable
instrument on or before the date the payment becomes due and payable.
3.2 The Licensee shall pay to Bio-Products a royalty of fifty cents
($.50) for every ton of waste received and processed utilizing the Technology,
up to a maximum of two thousand (2,000) tons per day of waste processed. The
Licensee shall pay to Bio-Products a royalty of one dollar ($1.00) for every ton
of waste received and processed in excess of two thousand tons per day up to a
maximum of ten thousand (10,000) tons per day of waste processed. The Licensee
shall pay to Bio-Products a royalty of one dollar and fifty cents ($1.50) for
every ton of waste received and processed in excess of ten thousand (10,000)
tons per day. The royalty payments shall become payable on the thirtieth (30th)
day following the end of the calendar month in which such amount becomes due and
owing until this Agreement or any extension thereof expires or is terminated.
Bio-Products agrees that no royalty shall be due and payable with respect to
waste processed at any facility until such facility has been in operation for
thirty (30) Operating Days, as defined in Paragraph 1.3 (the "Operational
Date"). Bio-Products further agrees that no royalty shall be assessed on the
first facility until either the sale of the cellulose product is confirmed by a
written agreement between the Licensee and a purchaser or the facility has
operated, producing and disposing of the cellulose product, for more than ninety
(90) days after the Operational Date. Payment of said royalties shall be by wire
transfer of funds to a Bio-Products bank account or by cashier's check or other
bank certified negotiable instrument.
3.3 The Licensee shall pay to Bio-Products a bonus (the "Bonus") of two
and one half percent (2.5%) of the gross sales price in excess of ten dollars
($10.00) per ton for the cellulosic product from waste, including MSW, utilizing
the Technology. The Bonus shall become due and payable on the ninetieth (90th)
day following the end of the calendar quarter in which such recyclable product
sales are made until this Agreement or any extension thereof expires or is
terminated. The Bonus shall be paid by wire transfer of funds to a Bio-Products
bank account or by cashier's check or by other bank certified negotiable
instrument. The above notwithstanding, no Bonus shall be due and payable with
respect to the cellulosic product produced at the facility until the facility
reaches its Operational Date.
3.4 As additional consideration and for their experience and know-how
regarding the Technology, the Licensee shall pay Bio-Products a monthly fee for
technical services. Such technical services shall initially be provided by Xxxx
and Xxxxxx who are employees of Bio-Products, and who agree to provide whatever
technical services are reasonably requested of them by Licensee. Payments to
Bio-Products for the technical services shall be ten thousand dollars ($10,000)
per month payable on or before the first (1st) business day of each month
beginning six (6) months from the date hereof. Payments for the technical
services of Bio-Products shall be increased to twenty thousand dollars ($20,000)
Exhibit 10.6 - 6
per month commencing on the first business day of the month following the
Licensee's initial down payment for the process vessels for construction of the
Licensee's first plant and continuing each month thereafter until the first
facility reaches its Operational Date. After the Operational Date of the first
plant, the monthly technical service fee shall be reduced to fifteen thousand
dollars ($15,000). During any above period Bio-Products shall provide whatever
services are reasonably requested of it by Licensee.
If at any time Bio-Products fails to undertake technical services
requested, then Licensee may cease all payments as set forth in this Paragraph
3.4, until such time as the failure to undertake the technical services
requested is remedied.
Following the Operational Date of Licensee's first facility, Licensee
and Bio-Products shall enter into a consulting agreement on terms mutually
agreeable to both Parties for the continued provision of technical services by
Bio-Products with respect to the construction of additional facilities or the
expansion of existing facilities. Licensee agrees that said consulting agreement
shall include a minimum annual compensation of One Hundred Eighty Thousand
Dollars ($180,000) per year to be paid to Bio-Products in monthly installments
for the first five (5) years after the Operational Date of Licensee's first
facility.
3.5 Additionally, with respect to the technical services provided by
Bio-Products, the Licensee shall either provide pre-paid expense accounts or
reimburse Bio-Products employees for the reasonable transportation, lodging,
food, and other expenses incurred by Bio-Products employees in the performance
of such technical services for the Licensee. In either case, itemized expense
reports and receipts shall be submitted to the Licensee by Bio-Products
employees within ten (10) business days of completion of travel or a specific
project in which expenses are incurred. The Licensee shall establish a travel
expense policy and procedure which policy and procedure Bio-Products shall
adhere to unless the parties agree, in writing, otherwise. Any reimbursement for
expenses shall be paid by the Licensee within ten (10) business days of receipt
of such expense reports submitted by Bio-Products employees.
3.6 The Licensee may enter into research and development contracts with
UAH unrelated to the Technology, with Xxxx as the principal investigator, to be
defined from time to time in exchange for results, information, and a royalty
free unrestricted license to use said results and information which are
unrelated to the Technology at Licensee's facilities for the period of this
Agreement unless a separate agreement is prepared and signed by both Parties.
Such results and information which are unrelated to the Technology, including
but not limited to test results, notes, and reports regarding the work performed
as requested by the Licensee shall be turned over to the Licensee by UAH and
Xxxx within thirty (30) days of completion, and all such results and information
shall be kept confidential and shall not be disclosed in any form without first
obtaining approval from the Licensee. Any and all research and development
results unrelated to the Technology from contracts with Licensee are
confidential and may not be provided to Third Parties without the written
permission of Licensee. If permission is granted by Licensee for Third Parties
to use such unrelated technology then Licensee shall be compensated at the rate
of 20% of royalties received by Bio-Products for the use of the unrelated
technology by a Third Party. UAH and Xxxx shall allow the Licensee to visit the
UAH pilot plant facility for any purposes, including demonstrations, recyclable
Exhibit 10.6 - 7
product production, and testing upon reasonable notice by the Licensee and
mutual agreement with Xxxx as to the dates and times. UAH and Xxxx shall also
provide training for the Licensee's employees to use the licensed Technology at
the UAH pilot plant. Xxxx shall be compensated at a rate of five hundred dollars
($500.00) per day plus expenses for all pilot plant operations. For
demonstrations, recyclable product production, testing, and training at the UAH
pilot plant at the request of the Licensee, the Licensee shall compensate UAH
for the expenses for such demonstration and test runs as follows:
(a) For Each Series of Test Runs:
(i) Pilot Plant Preparation/Set up $500
(ii) Pilot Plant Clean-up/Shutdown $500
(b) For Each Test Run in a Series:
(i) Boiler Fuel/Water Treatment $200
(ii) Labor $800
(iii) Waste Disposal $100
(c) Follow up Costs:
(i) Small Sample Collection, Packaging & Storage $100
(ii) Large Sample Collection & Packaging $250
(iii) Dry Cellulose Product per ton $500
(iv) Shipping Containers & Shipping Costs Actual, plus 25%
(d) Additional expenses:
(i) Tractor Rental $100/day
(ii) Auto/Truck mileage for Laborers $0.40/mile
(iii) Truck towing mileage $0.80/mile
(iv) Local Lodging for Laborers $50/day
(v) Per Diem allowance for Laborers $25/day
3.7 For the first facility to be sub-licensed under this Agreement, the
Licensee agrees that the facility design, equipment designs and specifications,
equipment fabricator for the process vessel, engineering firm, construction
contractors and sub-contractors, and all facility management and labor personnel
must be approved by Bio-Products, which approval shall not be unreasonably
withheld. The Licensee also agrees to begin the facility permitting, facility
and equipment design, equipment selection, and engineering for the first
facility within six (6) months from the date of execution of this Agreement and
to begin placing orders for equipment and construction site work within one (1)
year from the date of approval of all permitting, facility and equipment design,
equipment selection, and engineering for the first facility. Notwithstanding the
foregoing, Licensee shall begin placing orders for equipment and shall commence
and diligently pursue construction and completion of the first facility no later
than thirty (30) months from the effective date of this Agreement, which would
be December 21, 2004.
3.8 Due to the proprietary nature of the process vessel design, the
Licensee agrees that Bio-Products shall maintain the exclusive right of vessel
manufacture, and the Licensee and its Sub-licensees shall purchase all required
vessels exclusively from Bio-Products. The purchase price shall be cost plus
fifteen percent (15%), not including shipping costs or taxes. All other
equipment required for construction and operation of waste processing and
recycling facilities utilizing the Technology may be purchased from other
vendors. The first two vessels are to be built to Bio-Products' specifications
in Mississippi and shipped to the requested locations. Shipping costs and
applicable taxes shall be itemized and included in the cost of vessels and shall
be invoiced to and paid by the Licensee. Thereafter, Bio-Products shall from
time to time seek the qualifications of and obtain cost quotations from
Exhibit 10.6 - 8
alternative vessel manufacturers to manufacture future process vessels as needed
such that the same may be provided to Licensee having equal or higher quality
than that established by Bio-Products from its Mississippi manufacturer and may
be transported by truck to the required facility at a cost equal to or less than
that established by Bio-Products from its Mississippi manufacturer including the
cost of shipping and taxes. If future vessels are purchased at a cost, excluding
shipping costs and taxes, below the most recent purchase price, Licensee agrees
to pay Bio-Products an amount equal to twenty-five percent (25%) of the cost
savings.
3.9 In order to maintain the exclusivity of this Agreement, the
Licensee further agrees that, within six (6) months from the Operational Date of
the first facility, the Licensee shall begin the facility permitting, facility
and equipment design, equipment selection, and engineering for construction of
one or more facilities with a combined total of at least two thousand (2,000)
tons per day. Licensee further agrees that within three (3) months after
Licensee has obtained approval of permitting, facility and equipment design,
equipment selection, and engineering, the Licensee shall begin ordering
equipment and construction site work for the one or more facilities with a
combined total of at least two thousand (2,000) tons per day, unless prevented
from doing so by a regulatory or government agency, acts of God, acts of war,
acts of terrorism, strikes, and the like. The Licensee shall expand existing
facilities and/or add new facilities with design capacity for processing at
least an average of an additional two thousand (2,000) tons per day of MSW each
year thereafter, unless prevented from doing so by a regulatory or government
agency. If Licensee fails to perform as specified under this Paragraph 3.9 for
two (2) consecutive years, then this Agreement shall convert from an exclusive
to a non-exclusive license.
3.10 The Licensee shall maintain all such books and records as are
necessary to accurately determine all amounts due and payable to Bio-Products,
Xxxx, and Xxxxxx under Paragraphs 3.2, 3.3, 3.4 and 3.5 of this Agreement, which
books and records the Licensee shall make reasonably available, upon the
submission of a written request from Bio-Products for inspection by Bio-Products
and/or its designated representative at a time mutually convenient to
Bio-Products and the Licensee. Bio-Products agrees to treat all such information
respecting Licensee's books and records as confidential.
3.11 All payments shall be paid to Bio-Products at the addresses set
forth in Paragraph 14.15 of this Agreement or as otherwise notified in writing
by the Parties.
ARTICLE IV - INVENTIONS AND DISCOVERIES
---------------------------------------
4.1 All rights, title, and interest in and to the Technology and all
patent applications and patents thereon or relating thereto as presently exist,
both foreign and domestic, shall remain the sole and exclusive property of
Bio-Products and/or UAH. In addition, patents and patent applications, both
foreign and domestic, with respect to the existing Technology shall be applied
for and prosecuted, and if received, shall issue solely in Bio-Products' or
UAH's name.
4.2 All right, title and interest in and to all future inventions,
processes, enhancements, improvements and other discoveries made by
Bio-Products, or any person acting for and under the direction of Bio-Products
Exhibit 10.6 - 9
or the Licensee, or any other employee or agent of Bio-Products, or the
Licensee, relating to the Technology shall be owned by Bio-Products and/or UAH.
All patent applications and patents thereon, foreign and domestic, whether made
by any of the Parties or UAH, or jointly by the Parties and UAH or jointly by at
least one employee of each Party, shall be owned exclusively by Bio-Products
and/or UAH. Bio-Products shall provide the Licensee with detailed information
concerning all such related, future inventions, processes, enhancements,
improvements and other discoveries upon request. To the extent required to
accomplish the foregoing, the Licensee shall execute any and all assignments of
patents or other documents to Bio-Products and/or UAH, if required for any such
patents to issue in Bio-Products' or UAH's name. Bio-Products hereby grants to
the Licensee an exclusive license in the USA, subject to the same exclusions and
conditions stated above in Paragraph 2.1, to utilize all such future inventions,
processes, enhancements, improvements and other discoveries at no additional
royalty or cost, except that the term of this Agreement shall be extended by
agreement of the Parties or automatically to the expiration date of any
subsequently issued patent.
4.3 The Technology of Bio-Products and/or UAH shall be maintained by
the Licensee free and clear of all liens and encumbrances or rights of any Third
Party. Neither Bio-Products nor Licensee shall sub-license, encumber, transfer
or assign the Technology of Bio-Products and/or UAH without the written consent
of the other party, except as provided in this Agreement.
4.4 The provisions of this Article shall apply to both foreign and
domestic inventions, processes, enhancements, improvements and other discoveries
relating to the Technology and to all patent applications and patents related
thereto.
4.5 The Parties shall cooperate in good faith to protect any such
invention, process, enhancement, improvement or other discovery, and to make all
necessary applications, assignments, as provided herein, and filings, including
patents, industrial designs, copyright registrations, trademark registrations
and other legal protections, necessary or helpful to protect their interests
therein.
ARTICLE V - REPRESENTATIONS AND WARANTIES
-----------------------------------------
OF BIO-PRODUCTS
---------------
Bio-Products hereby represents and warrants, as of the date hereof, as
follows:
5.1 Bio-Products is a corporation, duly organized, validly existing and
in good standing under the laws of Alabama. Bio-Products has all requisite power
and authority, corporate and otherwise, to execute, deliver, observe, and
perform its obligations under, this Agreement. The execution, delivery and
performance by Bio-Products of this Agreement have been duly authorized by all
necessary corporate action and does not and will not violate Bio-Products'
Articles of Incorporation or Bylaws or any provision of any agreement, law,
rule, regulation, order, writ, judgment, injunction, decree, determination, or
award presently in effect to which Bio-Products is a party or is subject.
Exhibit 10.6 - 10
5.2 Bio-Products possesses all such franchises, licenses, patents, or
other rights necessary to enter into, and satisfy its obligations under, this
Agreement, without (to the best of Bio-Products' knowledge) any conflict with,
or infringement of, the franchises, licenses, patents or other rights of Third
Parties.
5.3 Bio-Products has the exclusive rights to grant some or all of its
rights or licenses to Third Parties to utilize the Technology not granted to the
Licensee under this Agreement in various geographical locations worldwide.
5.4 There is no action, suit, proceeding or claim pending or, to the
knowledge of Bio-Products, threatened against Bio-Products in any way relating
to the Technology. There is no action, suit, proceeding or claim pending or, to
the knowledge of Bio-Products, threatened against Bio-Products' properties,
assets or business which might have a materially adverse effect on Bio-Products'
rights or ability to perform this Agreement in accordance with its terms. No
investigation by any governmental agency is pending or threatened against
Bio-Products or the properties, business, or goodwill of Bio-Products, which has
or might have a materially adverse effect on Bio-Products' rights or ability to
perform this Agreement in accordance with its terms. There is no outstanding
order, writ, injunction, or decree of any court, government or governmental
agency against Bio-Products or its assets, business, or goodwill. Bio-Products
is not in violation of any law or governmental regulation applicable to it, to
the Technology, or to its properties or business, including but not limited to
any applicable safety, environmental control, or similar law or regulation.
5.5 There is no claim or demand of any Third Party pertaining to, or
any proceedings, which are pending or, to the knowledge of Bio-Products,
threatened which challenge the rights of Bio-Products in respect of any of the
Technology. No technology owned, licensed or used by Bio-Products is subject to
any outstanding order, decree, judgment, or stipulation by or with any court,
arbitrator or administrative agency, or, to the best of Bio-Products' knowledge,
infringes upon the rights of Third Parties.
5.6 Bio-Products reserves the right to, but as of the effective date of
this Agreement has not, put any Third Party on notice of, and is not a party to
any suit alleging, any infringement or alleged infringement of any of the
Technology. Bio-Products is aware that there are currently bases for putting
certain Third Parties on notice and/or filing claims, action, or litigation
alleging infringement of the Technology.
ARTICLE VI - INDEMNITY AND INSURANCE
------------------------------------
6.1 (a) The Licensee shall indemnify, defend and hold Bio-Products
and UAH and their respective directors, trustees, officers and
employees harmless from and against any and all claims and
expenses, including reasonable attorneys' fees and other legal
expenses, arising out of the death or injury of any person or
persons, any damage to property, or any other claim,
proceeding, demand, expense, or liability of any kind
whatsoever resulting from, or attributable to utilization of
the Technology (see Paragraph 10.3 below and Exhibit A).
Exhibit 10.6 - 11
(b) At least ten (10) days prior to commencement of vessel
installation and operating activities on the site of each
facility of the Licensee to be constructed and utilize the
Technology pursuant to this Agreement, the Licensee or its
Sub-licensee shall provide to Bio-Products copies of
certificates evidencing the purchase of policies of insurance
against the liabilities described in Paragraph 6.1(a), naming
UAH and all of the Parties hereto as additional insureds, in
amounts not less than one million dollars ($1,000,000) per
claim.
(c) Bio-Products facilities in which the Licensee shall have no
financial interest shall provide indemnification and insurance
against the liabilities described in Paragraph 6.1 (a) and
(b), naming UAH and all of the Parties hereto as additional
insureds, in amounts not less than one million dollars
($1,000,000) per claim.
VII - PATENT INFRINGEMENT
-------------------------
7.1 (a) Bio-Products shall notify the Licensee, and the Licensee
shall notify Bio-Products, of any infringement suits that may
be brought against any Party to this Agreement within three
days after learning of the existence thereof. Bio-Products
and/or UAH shall defend at their own expense all infringement
suits relating to the existing Technology, and any future
discoveries, inventions, improvements, processes and
enhancements described in Paragraphs 4.1 and 4.2 of this
Agreement. In connection with the defense by Bio-Products
and/or UAH of any Third Party claim, the Licensee shall take
reasonable actions as are necessary or desirable to assist
Bio-Products and/or UAH in any such action. If the Licensee is
called upon to take action in a way, which require it to make
available its own personnel or to retain counsel and/or
experts, Bio-Products shall reimburse the Licensee for the
direct costs of the Licensee's personnel involved and for the
fees and disbursements incurred on account of the Licensee's
counsel and experts. Such reimbursement of the Licensee shall
be by deduction from amounts to be paid to Bio-Products by the
Licensee for use of the Technology under this Agreement.
(b) The Licensee shall at its own expense defend all infringement
suits relating to any variations, modifications and
alterations of the Technology that were made by the Licensee
without the written acknowledgement and consent of
Bio-Products to make any such variations, modifications, and
alterations of the Technology. The Licensee shall not be
entitled to any deduction from amounts due Bio-Products on
account of such expenses.
7.2 Bio-Products shall have the sole right (but not the obligation) to
take enforcement action against or settle infringement activity arising under
any of the patents covering the Technology. If Bio-Products is unable to take
enforcement action or settle infringement activity for financial reasons,
Bio-Products may request Licensee to provide financing to jointly with
Exhibit 10.6 - 12
Bio-Products take such action. Licensee shall, at its sole discretion, determine
whether to provide the financial resources for any such action. The Licensee
shall take all reasonable actions as are necessary to assist Bio-Products in any
such action. If the Licensee is called upon to take action in a way, which shall
require it to make available its own personnel or to retain counsel and/or
experts, Bio-Products shall reimburse the Licensee for the direct cost of the
Licensee's personnel involved and for the fees and disbursements incurred on
account of the Licensee's counsel and experts. Such reimbursement of the
Licensee shall be by deduction from amounts to be paid to Bio-Products by the
Licensee for use of the Technology under this Agreement.
7.3 In connection with the defense by Bio-Products of any Third Party
claims not addressed in Paragraphs 7.1 or 7.2, the Licensee shall participate
and cooperate, as Bio-Products shall, from time to time, reasonably request. If
the Licensee is called upon to take action in a way which shall require it to
make available its own personnel or to retain counsel and/or experts, the
Licensee shall be entitled to a deduction from any amounts due Bio-Products
under this Agreement. If there are no such amounts due Bio-Products under this
Agreement, then Bio-Products agrees to pay Licensee all personnel, counsel,
expert and courts costs thirty days after notification of such expenses by the
Licensee in connection with Bio-Products' defense of such suits.
ARTICLE VIII - FABRICATION AND CONSTRUCTION
-------------------------------------------
8.1 The Licensee shall use its best efforts to assure that all
construction and fabrication meets or exceeds all required safety standards of
the United States and the jurisdiction wherein the Technology shall be utilized.
8.2 Bio-Products will use its best efforts to assure that all designs,
processes, formulas, recipes, and plans to be provided to the Licensee meet or
exceed all applicable and material safety standards of the United States and any
jurisdiction wherein the Technology shall be utilized.
8.3 The Licensee shall use its best efforts to obtain, or cause to be
obtained, all material local, state and federal permits necessary for the
construction and operation of any facility that will utilize the Technology.
ARTICLE IX - CONFIDENTIALITY
----------------------------
9.1 The Parties hereto each possess confidential information of both a technical
and a non-technical nature. It is understood that it has been and may be
necessary for one to disclose same to the other, and the Parties agree such
disclosures have been and will be made under and subject to the following terms:
(a) Each Party agrees to receive and maintain in strict confidence
the confidential information disclosed to it by the other
Party and which is designated in writing as "CONFIDENTIAL" by
the Party making the disclosure. Such confidential
information, either tangible or intangible, shall not be used
in any way other than for performance of express provisions of
this Agreement, and shall not be disclosed to others without
written consent of the designating, disclosing Party.
(b) The obligations of confidentiality herein shall not apply to
prevent any Party hereto from using or otherwise disclosing
any information, tangible or intangible, which:
Exhibit 10.6 - 13
(i) it had rightfully in its possession before the disclosure
thereof by the disclosing Party;
(ii) is now in, or later comes into, the public domain
through no fault of the receiving Party; or
(iii)is disclosed to the receiving Party by a Third Party
having the right to make such a disclosure.
(c) The obligations of confidentiality herein shall extend beyond
any termination, cancellation or expiration of this Agreement
and shall include all such written information exchanged
between the Parties.
(d) The information designated as "CONFIDENTIAL" shall be
disclosed by each Party only to those employees having a need
to know same for purposes of performing the express provisions
of this Agreement, and who shall in writing agree to be bound
by the provisions of this Paragraph 9.1.
(e) The Parties to this Agreement shall take all necessary care to
maintain all "CONFIDENTIAL" information in strict confidence.
Disclosure to any Third Party shall be made only after said
Third Party has executed a "Confidentiality, Non-Disclosure,
and Non-Competition" agreement which is attached hereto as
Exhibit F, copies of which shall be maintained by the
disclosing Party and shall be subject to inspection by any of
the Parties hereto.
(f) In the event that any Party hereto becomes legally compelled
or otherwise legally obligated to disclose any confidential
information disclosed to it by another Party, the compelled
Party will provide the other Party prompt notice so that the
other Party may seek a protective order or other appropriate
remedy. Should the other Party be unable on its own behalf to
obtain such order or remedy, the compelled Party will use its
best efforts to obtain a protective order or other appropriate
remedy and if unable to do so will consult (or will cause such
person to whom such confidential information was furnished to
consult) with the other Party as to what information should
and should not be disclosed and will disclose only that
portion of the confidential information which is legally
required to be disclosed and will use its best efforts to
obtain assurances that treatment consistent with this
paragraph will be accorded to that portion of the confidential
information so disclosed. Except for expenses incurred as a
result of any breach of this Agreement relating to the
disclosure of confidential information, the other Party will
reimburse the compelled Party for its expenses incurred in
complying with the terms of this Paragraph 9.1 (f).
(g) The Parties hereto agree to collect, obtain and deliver to
each other at the expiration or earlier termination of this
Agreement, all documents, models, drawings, plans, designs,
specifications, calculations, memoranda and other materials or
records prepared in the course of their performance and duties
Exhibit 10.6 - 14
hereunder, except one record set, which may be retained by
each Party in accordance with the provisions of this Paragraph
9.1.
ARTICLE X - AGREEMENT BETWEEN BIO-PRODUCTS AND UAH
--------------------------------------------------
10.1 Bio-Products shall comply with all of the terms and conditions of,
and perform all of its obligations under, the UAH License. Bio-Products shall
not agree to any amendment or modification of the UAH License that would
materially affect the terms and conditions of this Agreement without the written
consent of Licensee.
10.2 If at any time Bio-Products defaults in its duties in connection
with, or by its conduct attempts to or actually terminates the UAH License which
default and/or termination affects or terminates the ability of Bio-Products to
grant the license contained in this Agreement, then the Licensee will be
automatically entitled to and may at its sole discretion enter into contractual
agreements with and pay directly to UAH the amounts necessary to obtain or
maintain the UAH License. If Licensee does not enter into contractual agreements
with UAH, but rather cures any financial default of Bio-Products only, then such
sums paid to UAH on behalf of Bio-Products shall be deducted from any royalties
owed to Bio-Products under this Agreement. If no such royalties are owed to
Bio-Products under this Agreement then such sums will be treated as an interest
free loan to Bio-Products.
10.3 Any provision of this Agreement to the contrary notwithstanding,
this Agreement shall be construed and interpreted so that the terms and
conditions hereof shall not be inconsistent with the terms and conditions of the
UAH License, attached hereto as Exhibit A.
ARTICLE XI - PUBLICITY OF LICENSE
---------------------------------
11.1 Upon the request of the Licensee, Bio-Products shall cooperate and
provide assistance in the development of public statements, advertising, sales
literature or promotional materials to describe or promote the Technology.
ARTICLE XII - VISITS TO PREMISES
--------------------------------
12.1 The Licensee shall, from time to time, permit Bio-Products to
bring visitors to tour any facility utilizing the Technology, provided, that
Bio-Products shall notify the Licensee at least seventy-two (72) hours in
advance of any proposed visit, that such visits shall be limited to reasonable
times and intervals, and contingent upon each visitor signing an appropriate
Confidentiality, Non-Disclosure and Non-Competition Agreement, and such visitors
shall also be subject to all relevant safety and other regulations that apply to
any other visitors to the facility. No persons other than those designated by
Bio-Products shall have the right to visit any facility utilizing the Technology
without the Licensee's express written consent.
ARTICLE XIII - EVENTS OF DEFAULT AND REMEDIES
13.1 The Licensee shall be in breach of this Agreement in the event of:
Exhibit 10.6 - 15
(a) The Licensee's failure to make any payment hereunder on or
before the date on which such payment becomes due and payable
and the continuation of such failure unremedied for thirty
(30) days after written notice thereof has been given to the
Licensee by Bio-Products;
(b) The Licensee's failure to observe or perform any covenant,
condition or agreement contained in this Agreement and the
continuation of such failure unremedied for thirty (30) days
after written notice thereof has been given to the Licensee by
Bio-Products, unless such breach can not be remedied within
such thirty (30) days for reasons beyond the Licensee's
control, in which case the Licensee shall have a reasonable
time within which to remedy such breach; or
(c) Any warranty or representation made herein by the Licensee and
contained in this Agreement, shall prove to have been false,
misleading or incorrect in any material respect as of the date
made, or shall have failed to state a fact necessary in order
to make the statements made not misleading.
No termination of this Agreement shall relieve the Licensee of the
obligation to pay to Bio-Products all royalties, fees, and other payments
accrued at the time of the termination.
13.2 Bio-Products shall be in default of this Agreement in the event
of:
(a) Bio-Products' failure to observe or perform any covenant,
condition or agreement contained in this Agreement or in the
UAH License and the continuation of such failure unremedied
for thirty (30) days after written notice thereof shall have
been given to Bio-Products by the Licensee;
(b) Any warranty or representation made herein by or on behalf of
Bio-Products, contained in this Agreement or in the UAH
License, shall prove to have been false, misleading or
incorrect in any material respect as of the date made, or
shall have failed to state a fact necessary in order to make
the statements made not misleading; or
(c) If at any time Bio-Products defaults in its duties in
connection with, or by its conduct attempts to or actually
terminates the UAH License which default and/or termination
affects or terminates the ability of Bio-Products to grant the
license contained in this Agreement, or affects or terminates
Licensee's ability to continue operation of existing plants or
build new plants.
13.3 The Licensee shall have the following remedies for breach or
default of this Agreement or the UAH License by Bio-Products:
(a) Upon Bio-Products' breach or termination of the UAH License or
this Agreement, such that the breach or termination has
affected the ability of Licensee to continue operation of
Exhibit 10.6 - 16
existing plants and preclusion of building new plants, the
Licensee may at its option terminate this Agreement and
contract directly with UAH as provided in this Agreement., The
Licensee and any sub-licensee shall utilize the Technology,
free of any royalties, fees, and other amounts accrued through
the date of such default or breach and thereafter.
(b) In addition to any other right or remedy available to the
Licensee under this Agreement or in law or equity, upon
Bio-Products' breach or default of this Agreement or the UAH
License, the Licensee shall be entitled to withhold and/or
offset any and all royalties or other fees due to Bio-Products
under this Agreement.
(c) Notwithstanding anything to the contrary in this Agreement,
the Licensee may terminate this Agreement at any time upon six
(6) months prior written notice to Bio-Products, at which time
the Licensee will cease utilizing the Technology, and pay to
Bio-Products any royalties, fees and other amounts accrued
through the date of such termination. Immediately upon
termination of this Agreement all rights, privileges and
licenses granted to the Licensee hereunder shall revert to
Bio-Products, including all sub-licenses of facilities granted
by the Licensee.
13.4 Upon the Licensees' breach of this Agreement and it's failure to
cure said breach as provided above in 13.1, Bio-Products may, at its option, (i)
terminate this Agreement, at which time Licensee shall cease utilizing the
Technology and such termination shall relieve Licensee of its obligations to pay
Bio-Products any further royalties or fees other than those fees and royalties
already accrued through the date of termination and all sub-licenses granted by
Licensee shall be assigned to Bio-Products; or (ii) Bio-Products may seeks to
recover such damages to which it may be entitled by applicable law, including
but not limited to, equitable and injunctive relief.
13.5 (a) Any claim or controversy arising out of or relating to
this Agreement, or the breach thereof, including without
limitation the right of any Party hereto to terminate this
Agreement, shall be settled by binding arbitration
administered by the American Arbitration Association in
accordance with its then current Commercial Arbitration Rules,
and judgment upon the award rendered by the arbitrator may be
entered in any court having jurisdiction thereof. The
arbitration shall be before one neutral arbitrator to be
selected in accordance with the then current Commercial
Arbitration Rules of the American Arbitration Association. The
parties shall have all rights to pre-arbitration discovery
pursuant to the Federal Code of Civil Procedure.
(b) Neither of the Parties nor the arbitrator may disclose the
existence, content or results of any arbitration hereunder
without the prior written consent of the Parties except to
counsel, accountants, and other need to know professionals.
Exhibit 10.6 - 17
(c) All fees and expenses of the arbitration shall be born by the
Parties equally. However, each Party shall bear the expense of
its own counsel, experts, witnesses, and preparation and
presentation of proofs.
(d) In the event that a claim or controversy over the right of any
Party to terminate this Agreement shall be submitted for
arbitration, this Agreement shall continue in full force and
effect, and the termination shall be of no effect, until the
arbitrator renders a final decision.
13.6 In the event of the commencement of a voluntary case under the
Bankruptcy Code by the Licensee, or Licensee's acquiescence in an involuntary
petition under the Bankruptcy Code which voluntary or involuntary case remains
undismissed for a period of ninety (90) days or more, the right and license
conferred under this Agreement shall automatically become and shall thereafter
be null and void. The commencement of a voluntary case under the Bankruptcy Code
by Bio-Products, or Bio-Products' acquiescence in an involuntary petition under
the Bankruptcy Code, which voluntary or involuntary case remains undismissed for
a period of ninety (90) days or more, shall be treated as a material breach of
the Agreement.
ARTICLE XIV - GENERAL PROVISIONS
--------------------------------
14.1 The titles of the various articles and sections of this Agreement
are solely for convenience of reference and are not part of this Agreement for
purposes of interpreting the provisions hereof.
14.2 The Licensee may assign all of its rights and obligations under,
and all of its interest in, this Agreement, including without limitation the
license granted hereby, either (i) in a transaction accompanied by the sale or
other transfer of the Licensee's entire business, its stock, or substantially
all of its assets, or (ii) to any other entity owned by the same shareholders of
Licensee and this Agreement shall be binding upon, and inure to the benefit of,
any such successor or assign of the Licensee, provided that Bio-Products
consents in writing, such assignment shall not be unreasonably conditioned,
withheld, or delayed..
14.3 Nothing in this Agreement shall be deemed or construed to
constitute or to create a partnership, joint venture or agency between the
Parties. Except as may be otherwise provided herein, neither Party shall have
any authority to bind the other Party in any respect.
14.4 If any provision of this Agreement is or becomes unenforceable
under any law of mandatory application, it is the intent of the Parties hereto
that such provision will be deemed severed and omitted herefrom, the remaining
portions hereof to remain in full force and effect as written.
14.5 The waiver by any Party of any failure on the part of any other
Party to perform any of its obligations under this Agreement shall not be
construed as a waiver of any failure or continuing failure or failures, whether
similar or dissimilar thereto.
Exhibit 10.6 - 18
14.6 This Agreement, including the exhibits hereto, constitutes the
entire Agreement between the Parties with respect to the subject matter hereof
and supersedes all prior and contemporaneous agreements between the Parties,
whether oral or written, related to the subject matter hereof. This Agreement
may be amended or modified only by a written instrument executed by the
authorized representatives of the Parties hereto.
14.7 This Agreement may be executed in one or more counterparts, each
of which shall be deemed to be a duplicate original, but all of which, taken
together, constitute a single document. This Agreement may be executed by each
Party on separate copies, which copies, when combined so as to include the
signatures of all Parties, shall constitute a single counterpart of this
Agreement.
14.8 This Agreement shall be governed by and construed in accordance
with the laws of the State of Alabama.
14.9 Each Party to this Agreement shall execute all instruments and
documents and take all actions as may be reasonably required to effectuate this
Agreement.
14.10 For purposes of venue and jurisdiction, this Agreement shall be
deemed made and to be performed in the City of Huntsville, Alabama.
14.11 This Agreement and all exhibits contain the entire agreement
between the Parties to this Agreement with respect to the subject matter of this
Agreement, is intended as a final expression of such Parties' agreement with
respect to such terms as are included in this Agreement, is intended as a
complete and exclusive statement of the terms of such agreement, and supersedes
all negotiations, stipulations, understandings, agreements, representations and
warranties, if any, with respect to such subject matter, which precede or
accompany the execution of this Agreement.
14.12 Whenever the context so requires in this Agreement, all words
used in the singular shall be construed to have been used in the plural (and
vice versa), each gender shall be construed to include any other genders.
14.13 Subject to any restriction on transferability contained in this
Agreement, this Agreement shall be binding upon and shall inure to the benefit
of the successors-in-interest and permitted assigns of each Party to this
Agreement. Nothing in this Paragraph shall create any rights enforceable by any
Third Party that is not a Party to this Agreement, except for the rights of the
successors-in-interest and permitted assigns of each Party to this Agreement,
unless such rights are expressly granted in this Agreement to other specifically
identified Third Parties.
14.14 Except as otherwise provided in this Agreement, in the event any
litigation, arbitration, mediation, or other proceeding ("Proceeding") is
initiated by any Party against any other Party to enforce, interpret or
otherwise obtain judicial or quasi-judicial relief in connection with this
Agreement, the prevailing Party in such Proceeding shall be entitled to recover
from the unsuccessful Party all costs, expenses, and reasonable attorneys' fees
relating to or arising out of (a) such Proceeding (whether or not such
Proceeding proceeds to judgment), and (b) any post-judgment or post-award
Exhibit 10.6 - 19
proceeding including without limitation one to enforce any judgment or award
resulting from any such Proceeding. Any such judgment or award shall contain a
specific provision for the recovery of all such subsequently incurred costs,
expenses, and actual attorneys' fees.
14.15 Any notice or other communication pursuant to this Agreement
shall be sufficiently made or given five days after the date sent, postage
pre-paid, by certified mail, return receipt requested, if sent to the following
addresses, or to such other address as the Party may from time to time designate
to the other Parties in writing:
In the case of Bio-Products:
Xx. Xxxxxxx X. Xxxx, President & CEO
BIO-PRODUCTS INTERNATIONAL, INC
0000 Xxxxxxxx Xxxx, XX Xxxxxxxxxx,
Xxxxxxx 00000 XXX
000-000-0000 (phone)
000-000-0000 (cellular)
000-000-0000 (fax)
xxxxx@xxxxx.xxx.xxx (email)
In the case of World Waste Technologies, Inc.:
Xxxxxx X. Xxxxxxx, CEO
WORLD WASTE TECHNOLOGIES, INC.
00000 Xxxxxxx Xxxxx Xx., Xxxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
000-000-0000 (phone)
000-000-0000 (cellular)
000-000-0000 (fax)
xxxxxxxx@xxxxxxxxxxxxxx.xxx (email)
Each Party shall make a reasonable, good faith effort to ensure that it will
accept or receive notices to it that are given in accordance with this
paragraph. A Party may change its address for purposes of this paragraph by
giving the other Parties written notice of a new address in the manner set forth
above.
14.16 In the event either Party hereto shall be rendered wholly or
partly unable to perform its obligations under this Agreement by reason of
causes beyond its control, including but not limited to acts of Nature, acts of
terrorism, acts, omissions, or regulation of any government or agency thereof,
judicial action, labor disputes, or transportation failure, except as specified
herein, the performance of the obligations of such Party insofar as it is
affected by such condition shall be suspended for the duration of such
condition, provided the Party affected advises the other Party of the basis of
its inability within ten (10) days of the beginning of such known inability.
After the cessation of the condition causing such inability, the Party suffering
such inability shall have a period of thirty (30) days to restore its
operation(s) and restore its obligations to the other Party.
14.17 No representations have been made to any Party regarding taxes,
it being understood by each of the Parties that each such Party accepts full
responsibility for calculation of and payment of his or its taxes, levies,
Exhibit 10.6 - 20
duties or other charges incurred or imposed as a consequence of this Agreement
and the transactions described herein.
14.18 This Agreement shall become effective when it has been executed
by all of the Parties to this Agreement.
Exhibit 10.6 - 21
IN WITNESS WHEREOF, the Parties have caused their duly authorized
representatives to duly execute and deliver this Agreement effective as of the
date written above.
BIO-PRODUCTS INTERNATIONAL, INC.
By: /s/ Xx. Xxxxxxx X. Xxxx
-----------------------------------------
Xx. Xxxxxxx X. Xxxx, President & CEO
WORLD WASTE TECHNOLOGIES, INC.
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxx, CEO
Exhibit 10.6 - 22
