Exhibit 10.2
TECHNOLOGY ASSIGNMENT AGREEMENT
BETWEEN KADOMA TRADING, LTD.
AND XXXXXXXXX, KOSICKA AND XXXXXXX
This Technology Assignment Agreement ("Agreement") is made effective as of
the last date set forth below ("Effective Date"), by and between KADOMA TRADING,
LIMITED, a Cyprus company, having a principal office located at 00 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Company"), on the one hand, and XXXXX
XXXXXXXXX, an individual residing at 93-355 Lodz, Xxxxxxxxxxx 00/00, Xxxxxx
("Inventor"), DOBROSLAVA KOSICKA, an individual residing at 91-037 Lodz,
Xxxxxxxxxxx 00/0, Xxxxxx ("Kosicka") (Kosicka and Inventor are referred to
collectively, as the "Assignors") and ANDRZEI XXXXX XXXXXXX, an individual
residing at __________________________, Poland ("Xxxxxxx"), on the other hand.
W I T N E S S E T H:
WHEREAS, the Inventor has invented certain methods and improvements
relating to processing waste phosphogypsum, which are disclosed and claimed in a
Polish patent application (the "Invention") prepared and filed by Kosicka on
behalf of Inventor;
WHEREAS, said Polish patent application is entitled "A Method For
Processing Phosphogypsum Wastes," was duly filed June 23, 1997 with the Patent
Office of Poland and assigned Serial Number P320762 (the "Patent Application," a
copy of which, along with the certified English language translation thereof, is
attached hereto as Exhibit 1); and
WHEREAS, the Assignors desire to irrevocably sell and transfer to the
Company, and the Company desires to receive, all right, title and interest in,
to and under the Invention, the Patent Application and all Intellectual
Property, including any Patents that may issue therefrom worldwide, upon the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual promises
herein contained, and intending to be legally bound hereby, the Company, the
Assignors and Xxxxxxx hereby agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings:
"Actions" means any claim, action, lawsuit, arbitration, inquiry,
proceeding or investigation by or before any Governmental Authority.
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"Agreement" or "this Agreement" means this Technology Assignment
Agreement, dated as of the Effective Date, among the Company, the Assignors and
Xxxxxxx, including all Exhibits and Schedules hereto, and all amendments hereto
made in accordance with the provisions of Section 9.09.
"Assignors" has the meaning specified in the Recitals to this Agreement.
"Company" has the meaning specified in the Recitals to this Agreement and
any successors to the Company.
"Encumbrance" means any security interest, mortgage, lien, charge, cloud
on title, adverse claim or restriction of any kind, including but not limited
to, any restriction on the use, voting, transfer, receipt of income, or other
exercise of any attributes of ownership.
"Governmental Authority" means any national, state, or local government,
governmental, regulatory, or administrative authority, agency or commission or
any court, tribunal or judicial body or other institution for deciding disputes.
"Initial Public Offering" means a first offering to the public of shares
of stock in the Company, or a Person (as defined below) that controls, is
controlled by, or is under common control with Company, through a stock
exchange, underwriters, and investment bankers registered in the United States
of America.
"Intellectual Property" means all of the following: issued patents and
patent applications, including patents of invention, provisional patents,
dependent patents, patents of additions, and applications therefor; invention
disclosures; and any and all divisions, continuations, continuations-in-part,
reissues, reexamined patents, or extensions thereof; any counterparts claiming
priority therefrom; utility models, certificates of invention and like statutory
rights, issued in or subsisting under the laws of Poland, the United States, and
any other nation or multinational patent granting authority of the world (the
"Patents"); all rights to work, advertise, promote, practice, make, use, and
sell the Invention and the subject matter of the Patent Application anywhere in
the world, to the exclusion of all others including the Assignors; all rights to
lease, license, sell, authorize use of, and otherwise exploit the Invention and
the subject matter of the Patent to any Person anywhere in the world; all
categories of trade secrets as defined in the Uniform Trade Secrets Act
including, but not limited to, business information, know-how, and technology
relating to the Invention; all Invention Records; all licenses and agreements
pursuant to which the Assignors have acquired rights in or to any Patents, and
agreements pursuant to which the Assignors have licensed or transferred the
right to use any of the foregoing; and all rights to enforce any of the
foregoing rights against anyone anywhere in the world.
"Invention" has the meaning specified in the Recitals to this Agreement,
and additionally shall mean the entire subject matter disclosed and claimed in
the Patent Application.
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"Invention Records" means all laboratory records, notes, test results, and
other writings of the Inventor pertaining to the conception, reduction to
practice, development, and testing of the Invention.
"Inventor" has the meaning specified in the Recitals to this Agreement.
"Liabilities" means any and all debts, liabilities, obligations, whether
accrued or fixed, absolute or contingent, matured or un-matured or determined or
determinable, including, without limitation, those arising under any Law, Action
or Governmental Order and those arising under any contract, agreement,
arrangement, commitment or undertaking.
"Patent Application" has the meaning specified in the Recitals to this
Agreement.
"Person" means any individual, partnership, firm, corporation,
association, syndicate, group, trust, unincorporated organization or other
entity.
"Successful Completion" of the Initial Public Offering shall mean that
time if and when the investing public shall have invested the sum of Ten Million
Dollars (US$10,000,000.00) in the stock of the Company that is offered in the
Initial Public Offering.
"Taxes" means any and all taxes, levies, duties, tariffs, imposts, and
other similar fees or charges of any kind, foreign or domestic, together with
any and all interest, penalties, additions to tax and additional amounts imposed
with respect thereto, imposed by any Governmental Authority or taxing authority,
including, without limitation: taxes on or with respect to income, franchises,
windfall or other profits, gross receipts, property, sales, use, capital stock,
payroll, employment, social security, workers' compensation, unemployment
compensation, or net work; takes or other charges in the nature of excise,
withholding, ad valorem, stamp, transfer, value added, or gains taxes; license,
registration and documentation fees; and customs duties and tariffs.
"University" means the University of Lodz (Uniwersytet Lodzki), located at
90-136 Lodz, Poland and any Person or legal entity that controls it, is
controlled by it, or is under common control with it.
ARTICLE 2
ASSIGNMENT OF THE TECHNOLOGY
Section 2.01. Assignment. In consideration for the Assignment Fees paid or
payable to Assignors hereunder, and in consideration for the promises of Company
made hereunder, Assignors agree to assign and do hereby assign to the Company,
all right, title, and interest in, to and under the Invention, the Patent
Application, all Intellectual Property therein, and the Assignors' entire right
to work the Invention for the purpose of gain or in the course of trade in
Poland and throughout the world.
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Section 2.02. Execution of Assignments. Concurrently with the execution of
this Agreement, Assignors shall execute the short form Assignment attached
hereto as Exhibit 2. The Company may record the executed short form Assignment
at any time after execution with the Patent Office of Poland, the U.S. Patent &
Trademark Office, and with the patent office or comparable registry of any
nation of the world.
Section 2.03. Additional Documents. Company's obligations under this
Agreement are expressly conditioned upon Company's approval of the chain of
title to the Invention, the Patent Application, and the Intellectual Property.
The Assignors further agree to assist the Company in every reasonable way in
perfecting the rights acquired by Company hereunder. Upon request by Company,
Inventor and Assignors shall duly execute, acknowledge and deliver to Company,
cause to be executed, acknowledged, and delivered to Company, any and all powers
of attorney, legalizations, further assignments or instruments that Company may
reasonably deem necessary, expedient or proper to carry out and effectuate the
purposes and intent of this Agreement. Company shall have the right to place the
same on record in the Patent Office of Poland, the U.S. Patent & Trademark
Office, and elsewhere as Company may determine. In the event that Company,
Inventor or Assignors fail to execute and/or deliver such additional documents,
upon execution of this Agreement, all rights agreed to be transferred to Company
under this Agreement shall be deemed irrevocably vested in Company effective
upon the Effective Date.
Section 2.04 Secondary Assignments Prohibited. Assignors shall not assign
to, license to, dispose of or exploit for the benefit of any third party or
Person anything assigned hereunder by Assignors to Company. Moreover, the
Assignors agree not to engage in any activity, including entering into any
arrangements and/or agreements with third parties, which would diminish the
commercial value of the Invention, Patent Application and Intellectual Property,
or inhibit, encumber, or impair the commercial exploitation of same by the
Company or its successors in interest.
ARTICLE 3
FEES AND PAYMENTS
Section 3.01. Payment upon Execution. Issuance of Shares of Stock and
Buyback Option. Upon execution of this Agreement by the parties and upon
execution of the short form Assignment set forth in Exhibit 2 by Assignors, and
in consideration for the rights granted to Company hereunder, Company shall
cause to be paid to Assignors an Assignment Fee in the sum of One Hundred
Thousand Dollars (US$100,000.00). In addition, Company shall cause to be issued
to the following individuals the indicated allotment of shares of Company Stock:
Andrzei Xxxxx Xxxxxxx, 100,000 shares; Xxxxx Xxxxxxxxx, 200,000 shares; and
Dobroslawa Kosicka, 200,000 shares, provided that the Company retains an option
to buy back said shares from each individual at a maximum price of US$7.50 per
share within a period of twenty-four months from the date of issuance of said
shares ("Option Period"). Accordingly, Xxxxxxx, Xxxxxxxxx and Kosicka each
hereby agrees not to sell or transfer his or
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her allotment of said shares and to maintain said shares free and clear of all
Encumbrances for the duration of the Option Period.
Section 3.02. Further Payment. Upon Successful Completion of the Initial
Public Offering, Company shall cause to be paid to Assignors a further
Assignment Fee in the sum of One Million Four Hundred Thousand Dollars
(US$1,400,000.00).
Section 3.03. Payment Terms. All payments that are payable to Inventor or
Assignors under this Agreement shall be payable in U.S. dollars and may be paid
by Company check, wire transfer, or cash, at the election of Company.
Section 3.04. Taxes. Inventor and Assignors shall have sole responsibility
to pay or reimburse Company for all Taxes, if any, including penalties and
interest, levied by any Governmental Authority as a result of the payments made
to Inventor or Assignor under this Agreement as well as any costs associated
with the collection or withholding such taxes or duties. Company shall withhold
Taxes from such payments only if required to do so by Governmental Authority.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
Section 4.01. Representations and Warranties of the Inventor. As an
inducement to the Company to enter into this Agreement, the Inventor represents
and warrants:
(a) That he is the sole and original inventor of the Invention, and
the entire subject matter disclosed and claimed in the Patent Application
including all aspects of the Invention disclosed and claimed therein;
(b) That the Invention and the subject matter claimed in the Patent
Application have not been taken or copied from or based upon any other
source (including without limitation any other invention or inventor), and
are not based upon, derived or adapted from any Intellectual Property of
any other Person in violation of any statute, legal obligation, or
agreement to which Inventor is bound;
(b) That this Agreement, each provision thereof, and entry into this
Agreement by Inventor, shall not conflict with, violate, or result in the
breach of any provision of any agreement or understanding by or between
Inventor and any other Person, including University and any past or
present employer of Inventor;
Section 4.02. Representations and Warranties of Assignors. As an
inducement to the Company to enter into this Agreement, the Assignors,
individually and collectively, represent and warrant:
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(a) That jointly they own all right, title, and interest in, to and
under the Patent Application; that they hold the unqualified right to
assign, transfer, and sell the Invention, the Patent Application, and all
Intellectual Property therein, free and clear of any claims, demands,
liens or other encumbrances of title, ownership or the like of any third
party or Person; that there are no past or outstanding options, licenses,
or assignments regarding all or a portion of the rights assigned
hereunder; that other assignment or other transfer of the rights assigned
hereunder has been granted or made to any other Person; that they have not
done or permitted to be done any act or thing whereby any of the rights
referred to in this Agreement have in any way been encumbered or impaired;
(b) That each of them will cooperate with the Company and provide
all reasonable assistance to the Company, both during prosecution of the
Patent Application, including any opposition, appeal, or related
proceedings, and during the entire period of enforceability of the
Invention, the Patent Application, any patent issued thereon, and the
Intellectual Property, necessary or requested by Company to facilitate or
advance the prosecution, enforcement, or defense of the Invention, the
Patent Application, the Intellectual Property, and any enforcement action,
lawsuit, litigation, or claim relating thereto;
(c) That to the best of the Assignors' knowledge, the Invention, the
subject matter claimed in the Patent Application, Intellectual Property
therein, and products produced according to them do not and will not
infringe any Intellectual Property rights or any other proprietary right
of any Person or give rise to any obligations to any Person as a result of
co-authorship, co-inventorship, or an express or implied contract for any
user or transfer;
(d) That there are no Actions now pending or threatened to be
brought before any Governmental Authority that could in any way impair,
limit or diminish the Invention, the Patent Application, or any rights
granted to the Company hereunder, or that challenge the legality,
validity, enforceability, or title of Assignors in the Invention, the
Patent Application, or the Intellectual Property therein;
(e) That this Agreement has been duly executed and delivered by the
Assignors and Xxxxxxx, and this Agreement constitutes a legal, valid and
binding obligation of the Assignors and Xxxxxxx enforceable against
Assignors and Xxxxxxx in accordance with its terms except as such
enforceability may be limited by principles of public policy and subject
to applicable laws;
(f) That this Agreement, any provision thereof, and the acts of
Assignors and Xxxxxxx in entering into this Agreement, shall not violate,
conflict with, result in any breach of, constitute a default under,
require any consent under, or give others any right of termination,
amendment, acceleration, suspension, revocation, or cancellation of, or
result in the creation of any encumbrance on the Invention or the Patent
Application under any agreement, understanding, or provision thereof
entered into among Assignors, Xxxxxxx and any other Person;
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(g) That the execution, delivery and performance of this Agreement
by Assignors and Xxxxxxx do not and will not require any consent,
approval, authorization or other order of, action by, filing with or
notification to any governmental authority;
(h) That neither of the Assignors nor Xxxxxxx is under any
obligation to pay any royalty or other compensation to any third party or
Person or to obtain any approval or consent for the use of the Invention,
the Patent Application, or any Intellectual Property therein;
(i) That neither the Invention, the Patent Application, or any
Intellectual Property therein is subject to any presently effective
judgment, order, decree, stipulation, injunction, or charge;
(j) That neither Assignor nor Xxxxxxx has agreed to indemnify any
Person for or against any interference, infringement, misappropriation, or
other conflict with respect to the Invention, the Patent Application, or
the Intellectual Property;
(k) That they have no notice or knowledge of any allegations or
threats that the Invention, the Patent Application, Intellectual Property
therein, or any practice thereof or product produced therefrom infringes
upon or is in conflict with any Intellectual Property of any third party,
and to the best of their knowledge, no basis exists for any such
allegations or threats;
(l) That neither Assignor has sent or otherwise communicated to any
Person any notice, charge, claim, or assertion of any present, impending,
or threatened infringement by any other Person of any Intellectual
Property of Assignors or any Intellectual Property that Assignors have the
right to use.
(m) That no broker, finder or investment banker is entitled to any
brokerage, finder's or other fee or commission in connection with the
transactions contemplated by this Agreement based upon arrangements made
by or on behalf of either Assignor or Xxxxxxx.
ARTICLE 5
INDEMNIFICATION AND REMEDIES
Section 5.01. Indemnification by Inventor. The Inventor agrees to defend,
indemnify, and hold harmless the Company, its successors, assigns, licensees,
officers and employees from and against any and all liability, losses, damages,
costs, claims, expenses (including but not limited to reasonable attorneys
fees), judgments and penalties arising of, resulting from, based upon or
incurred because of the actual breach of any warranty made by Inventor
hereunder.
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Section 5.02. Indemnification by Assignors and Xxxxxxx. Assignors and
Xxxxxxx agree, individually and collectively, to defend, indemnify, and hold
harmless the Company, its successors, assigns, licensees, officers and employees
from and against any and all liability, losses, damages, costs, claims, expenses
(including but not limited to reasonable attorneys fees), judgments and
penalties arising of, resulting from, based upon or incurred because of the
actual breach of any warranty made by Assignors and Xxxxxxx hereunder.
Section 5.03. Infringement Indemnification by Assignors and Xxxxxxx.
Assignors and Xxxxxxx agree, individually and collectively, to indemnify and
hold harmless the Company, its successors, assigns, licensees, officers and
employees from and against any and all actions, liability, losses, damages,
settlements, costs, claims, royalties, expenses (including but not limited to
reasonable attorneys fees), judgments and penalties (collective referred to as
"Claims") arising of, resulting from, based upon or incurred because of
infringement by the Invention, the Patent Application or the Intellectual
Property therein of any Intellectual Property of any third party or other
Person. The Company shall notify Assignors and Xxxxxxx of any such Claims. The
Company in its sole discretion may elect to defend any such Claims or may elect
to allow Assignors and Xxxxxxx to defend such Claims, and if Company elects the
latter, Assignors and Xxxxxxx agree to vigorously and diligently defend such
Claims provided that Company shall cooperate with Assignors and Xxxxxxx in such
defense. In any case, Assignors and Xxxxxxx shall allow Company to direct and
control all related settlement negotiations. If it is, or in the reasonable
opinion of Assignors and Xxxxxxx there is a high probability that it will be,
determined by a court of competent jurisdiction that the Invention, Patent
Application, Intellectual Property therein or the sale or use thereof or any
product thereof infringes any patent, copyright, trade secret or trademark of a
third party or is enjoined from practicing any right granted to Company
hereunder, then Assignors and Xxxxxxx may, at their sole expense, procure for
Company under any applicable Intellectual Property the same rights and to the
same extent as those granted under this Agreement.
Section 5.04 Remedies of Inventor, Assignors and Xxxxxxx. Inventor,
Assignors and Xxxxxxx agree that their sole remedy, individually or
collectively, for any default by the Company hereunder, including the failure by
the Company to pay any consideration payable to Inventor, Assignors, or Xxxxxxx
hereunder, shall be an action against Company for such consideration and/or for
damages. Specifically, Inventor, Assignors and Xxxxxxx agree that they, and each
of them, shall have no right to enjoin the making, using, or selling of the
Invention, Patent Application, Intellectual Property, or any method or product
thereof, or to terminate or rescind any rights in the Invention, Patent
Application, or Intellectual Property granted to Company hereunder, or to obtain
any other form of equitable relief.
Section 5.04. Remedies of Company. The Company shall have at all times,
all rights and remedies that it has at law and in equity hereunder or otherwise.
Section 5.05. Right of Company to Injunctive Relief. The rights that are
the subject matter of this Agreement are of a special, unique, extraordinary and
intellectual character that gives them a peculiar value, the loss of which
cannot be reasonably or adequately
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compensated for in damages in an action at law and which would cause Company
great irreparable injury and harm. Accordingly, Company shall be entitled to
injunctive relief, specific performance and other equitable relief to preserve
its rights and interest in and to such rights as set forth in this Agreement.
This provision shall not be construed as a waiver of any rights Company may have
for damages or otherwise arising from any breach of this Agreement.
Section 5.06. Limitation on Remedies. IN NO EVENT SHALL "COMPANY," ITS
EMPLOYEES, OFFICERS, DIRECTORS, OR AGENTS BE LIABLE TO "INVENTOR" OR "ASSIGNORS"
OR "XXXXXXX" FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL OR INDIRECT DAMAGES OF
ANY KIND, INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR REVENUES OR ANTICIPATED
SAVINGS, ARISING FROM ANY "ACTION" AS DEFINED HEREIN ARISING UNDER THIS
AGREEMENT, EVEN IF "COMPANY" OR SUCH OTHER PARTY IS AWARE OF THE POSSIBILITY OF
SUCH DAMAGES OR LOSS. In no event shall the aggregate liability for damages of
Company, its employees or agents, exceed the total amount actually paid to
Inventor or Assignors or Xxxxxxx by Company under this Agreement.
Section 5.07. Allocation of Risk. The provisions in this Agreement
concerning limitation of liability, representations and warranties and damages
allocate the risk of failure between Company on the one hand and Inventor,
Assignors and Xxxxxxx on the other hand. Such allocation is reflected in the
consideration paid for the rights granted hereunder and is an essential element
of the basis of the bargain between Company on the one hand and Inventor,
Assignors and Xxxxxxx on the other hand.
ARTICLE 6
OTHER OBLIGATIONS OF INVENTOR, ASSIGNORS AND XXXXXXX
Section 6.01. Delivery of Invention Records. Promptly after execution of
this Agreement, the Inventor shall deliver or cause to be delivered to the
Company or its designated agent, all original Invention Records of the Inventor
pertaining to the Invention and the Patent Application. The Inventor may retain
a copy of such Invention Records.
Section 6.02. Confidentiality. Assignors and Xxxxxxx acknowledge and agree
that they or each of them has or may receive hereunder information which is
marked confidential or is verbally designated confidential and constitutes the
proprietary confidential information of the Company, and that Assignors' and
Xxxxxxx'x protection thereof is essential to this Agreement. Assignors and
Xxxxxxx shall retain in strict confidence and not disclose to any third party
(except as authorized by this Agreement) without Company's express written
consent any and all such information.
Section 6.03. Exceptions. Assignors and Xxxxxxx shall be relieved of this
obligation of confidentiality to the extent any such information:
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(i) was in the public domain at the time it was disclosed or
has become in the public domain through no fault of Assignors and Xxxxxxx;
(ii) Assignors can prove was known to Assignors and Xxxxxxx,
without restriction, at the time of disclosure as shown by the files of
Assignors and Xxxxxxx in existence at the time of disclosure;
(iii) is disclosed by Assignors and Xxxxxxx with the prior
written approval of Company;
(iv) Assignor and Xxxxxxx can prove was independently
developed by Assignor and Xxxxxxx without any use of Company's
confidential information and by employees or other agents of Assignors and
Xxxxxxx who have not had access to any of Company's confidential
information; or
(v) becomes known to Assignors and Xxxxxxx, without
restriction, from a source other than Company without breach of this
Agreement by Assignors and Xxxxxxx and otherwise not in violation of
Company rights.
Section 6.04. Technical Consultation. For a period of five (5) year(s)
after the Effective Date, the Inventor shall provide technical assistance and
consultation to the Company in its efforts to commercialize and/or license the
Invention and the subject matter claimed in the Patent Application throughout
the world. In the course of providing such assistance and consultation to
Company, Inventor may provide Company with information that Company uses, relies
upon, or incorporates as part of its implementation and commercial use of the
Invention and the subject matter claimed in the Patent Application. Company will
own all of Inventor's right, title, interest and Intellectual Property in such
information, and no such information shall be deemed Intellectual Property owned
by Inventor.
ARTICLE 7
ASSIGNMENT OF THE AGREEMENT
Section 7.01. By Company. The Company may transfer and assign this
Agreement or all or any of its rights hereunder to any Person, and in such
event, Company shall be released and discharged from all executory obligations
hereunder, and Inventor, Assignors and Xxxxxxx shall look solely to such Person
for performance thereof.
Section 7.02. By Inventor, Assignors and Xxxxxxx. Inventor, Assignors and
Xxxxxxx, individually or collectively, may not assign this Agreement or their
rights hereunder, in whole or in part, without Company's prior written approval.
Any such purported assignment without Company's prior written approval shall be
deemed void. This Agreement shall inure to the benefit of the parties' permitted
successors, licensees and assigns.
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ARTICLE 8
TERM, RENEWAL AND TERMINATION
Section 8.01. Termination. This Agreement may be terminated at any time:
(a) by the Company immediately upon written notice to Inventor or
Assignors or Xxxxxxx if (i.) Inventor breaches or is found to be in breach of
any representation or warranty made by Inventor herein, or (ii.) either Assignor
or Xxxxxxx breaches or is found to be in breach of any representation or
warranty made by Assignors or Xxxxxxx herein, or (iii.) either Assignor or
Xxxxxxx breaches or is found to be in breach of its obligations under Section
6.02 ("Confidentiality") hereof; or
(b) by the Company immediately upon written notice to Inventor or
Assignors if any Governmental Authority shall have issued a final,
non-appealable order, decree or ruling or taken any other action (i.)
permanently enjoining or otherwise prohibiting the enforcement of any of the
rights assigned by Assignors to Company hereunder, (ii.) declaring any patent
that shall have issued from the Patent Application to be invalid, not valid,
void, or unenforceable, or (iii) declaring the Patent Application invalid or not
patentable in any opposition proceeding; or
(c) by the mutual written consent of the Company and the Inventor, or by
the Company and both Assignors, or by the Company, both Assignors and Xxxxxxx.
Section 8.02. Effect of Termination. In the event of termination of this
Agreement, this Agreement shall forthwith become void and there shall be no
liability on the part of either party hereto except that nothing herein shall
relieve either party from liability for any breach of this Agreement or for
breach of any representation or warranty made hereunder.
ARTICLE 9
GENERAL PROVISIONS
Section 9.01. Controlling Law. This Agreement shall be construed and
enforced under the laws of the State of New York applicable to agreements
entered into and performed wholly within New York. In any action to enforce or
construe this Agreement, the parties hereto agree to submit to the jurisdiction
of the United States District Court for the Southern District of New York or the
Supreme Court of the State of New York which the parties acknowledge and agree
are convenient forums in which to litigate any such action. The parties waive
any right to transfer such action to any other court and expressly consent to
the permanent jurisdiction of such courts regarding the resolution of any
disputes hereunder and agree to be bound by the judgment rendered by such
courts.
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Section 9.02. Independent Contractor. Neither party has any authority to
make any statement, representation, warranty or other commitment on behalf of
the other. This Agreement does not create any agency, employment, partnership,
joint venture or similar relationship between Company, Inventor, Assignors, or
Xxxxxxx.
Section 9.03. Force Majeure. Neither party shall be liable for any delay
or failure to meet its obligations under this Agreement due to circumstances
beyond its reasonable control, including but not limited to war, riot,
insurrection, civil commotion, labor strikes or lockouts, shortages, factory or
other labor conditions, fire, flood, earthquake or storm.
Section 9.04. Severability. If any provision of this Agreement should be
held unenforceable or invalid for any reason, such holding shall not affect the
enforceability or validity of the remaining provisions, and the parties will
substitute for such provisions an enforceable and valid provision which most
closely approximates the intent and economic effect of the unenforceable or
invalid provision.
Section 9.05. Waiver. No waiver of any obligation under this Agreement
shall be valid unless set forth in a writing signed by the party to be bound
thereby. Any waiver of a term or condition shall not be construed as a waiver of
any subsequent breach or a subsequent waiver of the same term or condition, or a
waiver of any other term or condition, of this Agreement. The failure of any
party to assert any of its rights hereunder shall not constitute a waiver of any
such rights.
Section 9.06. Expenses. Each party shall bear its own costs and expenses
incurred in connection with this Agreement.
Section 9.07. Notices. All notices, requests, claims, demands and other
communications hereunder shall be deemed given upon receipt, and shall be given
in writing and shall be given or made by delivery in person, by courier service,
by telecopy, or by registered or certified mail (postage prepaid, return receipt
requested) to the respective parties at the following addresses:
(a) If to the Company:
Kadoma Trading, Ltd.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(b) If to the Inventor:
Xxxxx Xxxxxxxxx
93-355 Lodz,
Xxxxxxxxxxx 00/00, Xxxxxx
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(c) If to the Assignors:
Xxxxx Xxxxxxxxx and Dobroslava Kosicka
93-355 Lodz, 91-037 Lodz,
Bialostocka 00/00, Xxxxxx Xxxxxxxxxxx 00/0, Xxxxxx
(d) If to the Xxxxxxx:
Andrzei Xxxxx Xxxxxxx
_____________________,
_____________________, Poland
Section 9.08. Public Announcements. No party to this Agreement, including
Xxxxxxx, shall make, or cause to be made, any press release or public
announcement relating to this Agreement without prior consent of the other
party, subject to the Company's obligations to comply with applicable securities
laws, and the parties shall cooperate as to the timing and contents of any such
release or announcement.
Section 9.09. Entire Agreement. This Agreement, including the attached
Exhibits, constitutes the entire agreement between Company, Inventor, Assignors
and Xxxxxxx with respect to its subject matter, and supersedes any prior or
contemporaneous written or oral understandings, agreements, or arrangements
between Customer, Inventor, Assignors and Xxxxxxx on the subject matter hereof.
No amendment of this Agreement will be enforceable unless set forth in writing
signed by the party against which enforcement is sought. This Agreement may be
executed in duplicate counterparts, which together shall constitute one and the
same instrument.
IN WITNESS WHEREOF, the parties, including Xxxxxxx, hereto have caused
this Agreement to be executed by their duly authorized representatives.
KADOMA TRADING, LTD. XXXXX XXXXXXXXX
("Company") ("Inventor" and an "Assignor")
By /s/ Xxxxxxx Xxxxxxxx Xxxxxxxxxx By /s/ Xxxxx Xxxxxxxxx
-------------------------------- --------------------------------
Name: XXXXXXX XXXXXXXX XXXXXXXXXX Name: XXXXX XXXXXXXXX
Title: DIRECTOR Date: 30/9/97
Date: 30/9/97
- 13 -
DOBROSLAWA KOSICKA ANDRZEI XXXXX XXXXXXX
(an "Assignor")
By /s/ Dobroslawa Kosicka By /s/ Andrzei Xxxxx Xxxxxxx
-------------------------------- --------------------------------
Name: DOBROSLAWA KOSICKA Name: ANDRZEI XXXXX XXXXXXX
Date: 30/09/97 Date: 30/9/97
- 14 -
A S S I G N M E N T
WHEREAS, Xxxxx Xxxxxxxxx, an individual residing at 93-355 Lodz,
Xxxxxxxxxxx 00/00 Xxxxxx ("Inventor"), and Dobroslava Kosicka, an individual
residing at 91-037 Lodz, Xxxxxxxxxxx 00/0 Xxxxxx ("Kosicka") (Kosicka and
Inventor are referred to collectively, as the "Assignors"), Assignors Polish
Priority Patent Application P 320762, filed June 23, 1997 for "A Method For
Processing Phosphogypsum Wastes", Kosicka having an interested in the
aforementioned Patent Application by virtue of an agreement between Inventor and
Kosicka dated September 30, 1997.
WHEREAS, Kadoma Trading, Ltd., a company organized and existing under the
laws of the Country of Cyprus, and having a place of business at 00 Xxxx 00xx
Xxxxxx, Xxx Xxxx, XX 00000, is desirous of acquiring the entire right, title and
interest, including the right to bring a patent infringement lawsuit for past
infringement, in and to the aforesaid Patent Application, and in, to and under
any and all Letters Patent that may be granted as a result thereof in any and
all countries;
NOW, THEREFORE, for and in consideration of the sum of One Dollar ($1.00)
and other good and valuable consideration, the receipt of which is hereby
acknowledged, the said Assignors have sold, assigned, transferred and set over
to said Kadoma Trading, Ltd., the entire right, title and interest including the
right to bring a patent infringement lawsuit for past infringement, in and to
the aforesaid Patent Application, and in, to and under any and all Letters
Patent that may be granted as a result thereof in any and all countries, and
any and all extensions, divisions, reissues, substitutes, renewals, or
continuations thereof, and the right to all benefits under the International
Convention for the Protection of Industrial Property, the same to be held and
enjoyed by said Kadoma Trading, Ltd., its successors, assigns and legal
representatives, to the full end of the term or terms for which said Letters
Patent may be granted, reissued or extended as fully as the same would have been
held and enjoyed in full by the Assignors had this assignment, sale or
transfer not been made; and said Assignors hereby authorize and request the
Commissioner of Patents of the United States and any official of any country or
countries foreign to the United States whose duty it is to issue patents to
issue to said Kadoma Trading, Ltd., assignee of the entire right, title and
interest therein, including the right to bring a patent infringement lawsuit for
past infringement, any and all Letters Patent of the United States or of said
foreign country or countries, which may be issued or granted as a result of the
Patent Application hereinbefore identified, in accordance with the terms of this
agreement, and hereby covenant that Assignors have the full right to convey the
entire interest herein assigned and that Assignors have not executed and will
not execute any agreement in conflict herewith.
IN TESTIMONY WHEREOF, has caused these presents to be signed by an officer
thereunto duly authorized, and its seal to be affixed and attested this 30th day
of September, 1997.
/s/ Xxxxx Xxxxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxxxx
30-9-97
---------------------------------
Date:
SEAL OF NOTARY PUBLIC
ATTEST:
XXXXXXXXXX XXXX
ATTORNEY AT LAW
A.M. 3070
00, XXXXXX XXXXXX
XXXXXX - XXXXXX
/s/ Dobroslava Kosicka
---------------------------------
Name: Dobroslava Kosicka
30-9-97
---------------------------------
Date:
SEAL OF NOTARY PUBLIC
ATTEST:
XXXXXXXXXX XXXX
ATTORNEY AT LAW
A.M. 3070
00, XXXXXX XXXXXX
XXXXXX - XXXXXX
RECEIPT OF U.S.$100,000.00
I, the undersigned, Xxxxx Xxxxxxxxx, of 58-305 Xxxxxxxxx, Xxxxxxxxxxx 00/0,
Xxxxxx, hereby confirm that I have received the amount of US$100,000.- as
deposit for selling to KADOMA TRADING LIMITED of 00, Xxxx 00xx Xxxxxx, Xxx Xxxx,
X.X. 00000, X.X.X., the patent Number P 320762 declared in Poland under number
P-320762 as per relevant contract.
30th September 1997
/s/Xxxxx Xxxxxxxxx
---------------------------
Xxxxx Xxxxxxxxx
