Exhibit 10.1
PROCESS AND PRODUCT LICENSE AGREEMENT
BETWEEN
BALCHEM CORPORATION
AND
PROJECT MANAGEMENT AND DEVELOPMENT CO., LTD
FOR CHOLINE CHLORIDE
TABLE OF CONTENTS
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ARTICLE TITLE PAGE
------- ----- ----
1 Definitions.................................................... 2
2 Balchem's Obligations and Grant of Rights...................... 9
3 Consideration.................................................. 14
4 Exchange of Improvements....................................... 16
5 Secrecy........................................................ 17
6 Warranties, Indemnities and Liabilities........................ 20
7 Expansion of Production Capacity............................... 23
8 Visit to Plant; Design and Operating Data; Further Exchange
of Improvements................................................ 24
9 Miscellaneous.................................................. 24
APPENDIX
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I Form Of Secrecy Undertaking
II Basic Engineering Scope of Work & Delivery Schedule
III Certificate Of Acceptance
IV Performance Guarantees
V Outline Of Training Programme
VI Draft Tri Partite Agreement
VII In Kingdom Services- Scope & Terms & Conditions
VIII Project Design Basis
IX Battery Limit Interface Diagram
X Minimum Contents Of The Deliverable Documents
PMD CHOLINE CHLORIDE PROJECT
COMPREHENSIVE LICENSE AGREEMENT
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LICENSE AGREEMENT
This LICENSE AGREEMENT made this 7th day of November 2005, by and between
Project Management and Development Co., Ltd., corporation under the laws of the
United Kingdom, with an office located at X.X. Xxx 00000, Xx-Xxxxxx, 00000, XXX,
(hereinafter referred to as "PMD"), which expression shall be deemed to include
its successors and permitted assignees, of the one part,
And
Balchem Corporation, a corporation of the State of Maryland, U.S.A., with an
office at 00 Xxxxxxx Xxxx Xxxx, XX Xxx 000, Xxx Xxxxxxx, Xxx Xxxx 00000
(hereinafter referred to as "BALCHEM"), which expression shall be deemed to
include its successors and permitted assignees, of the other part.
PREAMBLE
WHEREAS
1. PMD is arranging for the construction and subsequent operation of a
petrochemical facility in the Kingdom of Saudi Arabia.
2. As part of the overall petrochemical plan referenced in Paragraph 1
above, PMD intends to construct and operate a facility capable of
producing 20,000 MTY (as defined below) of seventy-five percent (75%)
aqueous choline chloride or its intermediate, trimethylammonium chloride.
3. BALCHEM owns and has the right to grant licenses under certain know-how,
trade secrets and other intellectual property related to the manufacture
and use of choline chloride.
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4. In order to establish said choline chloride production plant, PMD desires
to license from BALCHEM TECHNICAL INFORMATION necessary to design,
construct, erect and operate the PLANT, as well as offer for sale, market
and sell the PRODUCT (all as defined below), and BALCHEM is willing to
grant and supply to PMD such license and TECHNICAL INFORMATION, to allow
the use of such TECHNICAL INFORMATION by PMD under the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and obligations of the
parties as set forth herein, IT IS HEREBY AGREED BY AND BETWEEN THE PARTIES
HERETO as follows:
ARTICLE 1.0 - DEFINITIONS
-------------------------
In this LICENSE AGREEMENT, the following words and phrases shall mean and
include as hereafter defined:
1.1 AFFILIATE
Affiliate shall mean any entity that is controlled by, controls, or is
under common control with BALCHEM or PMD, as the case may be, as of the
Effective Date. For such purpose the term "control" means (a) direct or
indirect ownership of more than fifty percent (50%) of the voting
interest in the entity in question, or more than fifty percent (50%)
interest in the income of the entity in question; provided, however, that
if local law requires a minimum percentage of local ownership, control
will be established by direct or indirect beneficial ownership of one
hundred percent (100%) of the maximum ownership percentage that may,
under such local law, be owned by foreign interests; or (b) possession,
directly or indirectly, of the power to direct or cause the direction of
management or policies of the entity in question (whether through
ownership of securities or other ownership interests, by contract or
otherwise).
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1.2 AGREEMENT or LICENSE AGREEMENT
This PRODUCT and PROCESS LICENSE AGREEMENT, including all appendices.
1.3 BATTERY LIMIT Means the overall PDP scope limits for the PLANT for each
of the feedstock, raw materials, utilities including waste streams, and
product streams, as depicted in Appendix IX.
1.4 CERTIFICATE OF ACCEPTANCE
Means a certificate to be issued by PMD to BALCHEM in accordance with
Appendix III which certificate shall constitute conclusive evidence
(except in the case of fraud) and in any proceedings in any jurisdiction
that the Process Guarantees have been or are deemed to have been
successfully completed.
1.5 CONFIDENTIAL INFORMATION
Shall have the meaning ascribed to it in Article 5 of this Agreement.
1.6 DATE OF START-UP
Means the date notified in writing by PMD to BALCHEM, upon the aggregate
production of 180 metric tons of PRODUCT, from the PLANT.
1.7 PDP
The technical documentation, process data, process specifications, design
drawings, and all other related documents, design reviews, process
hazards reviews, as described in Appendix II, sufficient for the EPC
CONTRACTOR to carry out the detailed engineering, procurement,
construction and start-up of the PLANT so the PLANT can satisfy the
PERFORMANCE GUARANTEES.
1.8 PLANT
PMD's manufacturing facilities to be erected and operated by PMD/EPC
CONTRACTOR at PMD's petrochemicals complex in the Kingdom of Saudi Arabia
for
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the operation/use of the PROCESS, such plant shall have the LICENSED
CAPACITY, for production of PRODUCT.
1.9 EPC CONTRACTOR(S)
The contractor, or contractors skilled in the design and erection of
chemical plants employed by PMD and responsible for the design and
construction the PLANT.
1.10 EPC CONTRACT
The contract to be entered into between PMD and EPC CONTRACTOR(S) for the
design and the construction of the PLANT.
1.11 EFFECTIVE DATE
The EFFECTIVE DATE shall be the date identified in the first paragraph of
this AGREEMENT.
1.12 FINANCIAL CLOSE DATE
Means the date on which funds are available for draw-down under the
relevant financing facility relating to the PLANT. PMD shall notify
BALCHEM of the occurrence of the FINANCIAL CLOSE DATE.
1.13 IMPROVEMENTS
IMPROVEMENTS being improvements and developments in the PROCESS developed
or initiated by BALCHEM, PMD or any of their AFFILIATES during the
IMPROVEMENTS PERIOD.
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1.14 IMPROVEMENTS PERIOD
Means the period beginning with the Date of this AGREEMENT and continuing
until the date ten (10) years from the DATE OF START-UP, as may be
extended upon the written mutual agreement of the Parties hereto.
1.15 KINGDOM
Means the Kingdom of Saudi Arabia.
1.16 LICENSE FEE
The total cash payment due BALCHEM under paragraphs 3.1.
1.17 LIQUIDATED DAMAGES
Means any and every sum or sums expressed to be payable by BALCHEM to PMD
on the failure of the PLANT to achieve the PERFORMANCE GUARANTEES as set
out in Appendix IV.
1.18 LICENSED CAPACITY
LICENSED CAPACITY shall be the production of a minimum of twenty thousand
(20,000) MTY when operating the PLANT over eight thousand (8,000) hours
per year at normal operating parameters, adjusted to reflect any
additional capacity paid for by PMD under the provisions of Article 7.0.
1.19 MTY or MTPY
Terms used interchangeably mean metric tons per year.
1.20 PARTY(IES)
PMD and/or BALCHEM.
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1.21 PERFORMANCE GUARANTEES
The PERFORMANCE GUARANTEES shall mean the guarantees related to the
performance of the PLANT and the PROCESS as set forth in Appendix IV.
1.22 PERFORMANCE TEST
Means the test set forth in Appendix IV to demonstrate the PERFORMANCE
GUARANTEES of the PLANT.
1.23 PERSONNEL
As to any PARTY, means permanent and/or contract employees of the ,
including its officers, and the PARTY's directors.
1.24 PMC CONTRACTOR
Means any project management contractor engaged by PMD in connection with
the project.
1.25 REGION
Means Saudi Arabia, Bahrain, Oman, Qatar, Iraq, Iran, Kuwait and UAE.
1.26 PROJECT DESIGN BASIS
Means a compilation of relevant technical information comprising basic
engineering design data (BEDD), with updates, including other technical
basis, discussed and agreed during post bid meetings, and those in
particular described in Appendix VIII. This will be discussed and agreed
at the DESIGN CONFERENCE and will be deemed incorporated into this
AGREEMENT. This AGREEMENT shall govern in the event of a conflict with
the PROJECT DESIGN BASIS.
1.27 PROCESS
PROCESS shall mean a continuous process technology owned by BALCHEM for
the manufacture of the PRODUCT and its intermediate, trimethylammonium
chloride.
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1.28 PRODUCT
Means Aqueous Choline Chloride (or commensurate amount of trimethyl
ammonium chloride) obtained by the PROCESS and produced by the PLANT.
1.29 PRESTART-UP SERVICES
The Services provided by BALCHEM to PMD necessary for personnel nominated
by PMD to use the TECHNICAL INFORMATION and operate the PLANT and the
PROCESS such that the PLANT will achieve its LICENSED CAPACITY, as
confirmed by PERFORMANCE TEST.
1.30 TERM
Means the period during which this AGREEMENT will be in force commencing
from the EFFECTIVE DATE until the earlier of ten (10) years from the DATE
OF START UP or 31 December 2020.
1.31 TECHNICAL INFORMATION
Technical knowledge, technical data, drawings, designs, and other
information necessary for the PROCESS or the PRODUCTS which BALCHEM owns
or controls or has rights to on the EFFECTIVE DATE. TECHNICAL INFORMATION
shall include the PDP, the maintenance manual and the quality manual.
1.32 INTERPRETATION
In this agreement the following words and expressions have the
interpretation as follows, except as otherwise expressly provided herein
or unless the context requires otherwise.
1.32.1 Year, month, week and day mean a calendar year, a calendar month, a
calendar week and a calendar day, respectively, of the Gregorian
Calendar.
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1.32.2 Any reference in this Agreement to the Agreement or to any provision
thereof shall include any amendment and waiver thereof as may become
effective from time to time in accordance with this Agreement.
1.33.3 Any reference to any Article or Appendix in this Agreement shall refer to
an Article or Appendix of this Agreement unless otherwise provided. All
references herein to an Article number (e.g. 5.12) shall be deemed to
include reference to all subsequent subparts of the same Article (e.g.
5.12.1, 5.12.2, 5.12.3).
1.34.4 The words "include", "includes" and "including" are not limiting.
1.35.5 The headings contained in this AGREEMENT are included solely for the
convenience of the PARTIES.
1.36.6 This Agreement may be executed in any number of counterparts and all such
counterparts taken together shall be deemed to constitute one and the
same instrument.
1.37.7 Any conflict between the Articles and the Appendices shall be resolved in
favor of the former.
1.38.8 The singular shall include the plural and the plural the singular, and
references in either gender shall be deemed to include the other and the
neuter, except where the context otherwise requires.
1.39.9 Words importing third parties include without limitation, corporations,
companies, partnerships, associations and organizations.
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ARTICLE 2.0 - BALCHEM'S OBLIGATIONS AND GRANT OF RIGHTS
-------------------------------------------------------
2.1 GRANT OF RIGHTS
2.1.1 Subject to the terms and conditions of this Agreement and provided that
PMD makes the payments becoming due as per Article 3.1 hereof, which sums
are not disputed by PMD, BALCHEM hereby grants to PMD and PMD hereby
accepts the exclusive license in the REGION to use the TECHNICAL
INFORMATION and IMPROVEMENTS necessary to perform the design,
engineering, construction, operation, maintenance and repair of the
PROCESS and the PLANT and for performing research and/or technical
services in support of the manufacture, use and sale of PRODUCTS or the
operation, maintenance, repair or expansion of the PLANT for the LICENSED
CAPACITY, subject to the provisions of Article 7.0.
2.1.2 Provided that PMD makes the payments becoming due as per Article 3.1
hereof, which sums are not disputed by PMD, BALCHEM agrees to grant and
hereby grants to PMD the exclusive right, without the right to sublicense
to any third party, except as provided for in Article 9, to use the
TECHNICAL INFORMATION and IMPROVEMENTS to design, engineer, construct,
operate maintain and repair the PLANT and undertake the PROCESS to
produce the PRODUCT, and BALCHEM undertakes not to assert any of its
rights (including proprietary rights and patent rights) to prevent the
manufacture of PRODUCTS in the PLANT. BALCHEM shall not grant licenses or
any other similar rights relating to the PRODUCT or the TECHNICAL
INFORMATION to any third party to construct or operate similar plants,
manufacturing similar products in the REGION.
2.1.3 In addition to the grant of license under Section 2.1.2 above, BALCHEM
grants the right to PMD to use, offer for sale, market, sell and
otherwise dispose of the PRODUCT on a world-wide basis, except for North
America, as set forth in Section 2.1.4.
2.1.4 With respect to the use, offer for sale, marketing or sale of the PRODUCT
in territories of Mexico, Canada and the United States of America
(collectively "North America") PMD hereby appoints BALCHEM as its
exclusive distributor for the purchasing of the
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PRODUCT and the resale of the PRODUCT in North America. PMD agrees that
BALCHEM will be the sole and exclusive marketer and seller of PRODUCT in
North America and shall not independently, or through third parties, use,
offer for sale, market or sell the PRODUCT in North America, or products
derived from the PRODUCT in North America. Notwithstanding the above, PMD
shall use reasonable endeavors to enforce this covenant with any third
party distributor selling the PRODUCT in North America. 2.1.5 BALCHEM
shall give the first right of refusal to PMD for PMD to become the sole
and exclusive marketer, distributor and seller in the REGION of Aqueous
Choline Chloride products produced by BALCHEM at any plant.
2.2 BALCHEM'S OBLIGATIONS
PDP WORK
--------
2.2.1 BALCHEM shall prepare the PDP using reasonable skill and care and in
accordance with the codes, standards and other requirements specified in
the PROJECT DESIGN BASIS. BALCHEM will designate one technical
representative who shall be available for PMD to contact for all matters
relating to the completion of the PDP and one technical representative
who shall be available for PMD to contact for all matters relating to the
PERFORMANCE GUARANTEES. Said representative could be the same individual
for the PDP and the PERFORMANCE GUARANTEES, subject to continued
employment with BALCHEM.
2.2.2 The PDP shall include the drawings, specifications and other process
design and basic engineering documents as specified in Appendix II.
BALCHEM shall deliver the PDP in accordance with the submission schedule
set out in Appendix II (and shall provide PMD with brief one page summary
updates not less than every four (4) weeks on the status and progress of
the PDP) in four (4) paper originals and one (1) electronic (CD-ROM)
original. Final complete PDP documentation volumes, in four (4) paper
original sets and
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one (1) electronic (CD-ROM) original, shall be submitted. The electronic
format for electronic files will be as shown in Appendix II.
2.2.3 The date of delivery of the PDP shall be deemed to be the date on which
BALCHEM dispatches to PMD the PDP. If any required documentation is not
received by PMD within seven (7) days of BALCHEM proving to PMD that it
has dispatched such documentation, such documentation will be treated as
lost or damaged and BALCHEM shall replace it free of charge within ten
(10) business days.
2.2.4 Unless the Parties agree otherwise in writing in relation to a particular
document or particular documents, and without prejudice to Article 2.2.1,
to the extent that BALCHEM delivers to PMD any PDP documentation ahead of
the scheduled submission in accordance with Appendix II, marked as "For
Information", it is agreed that such document is not final and is subject
to change by BALCHEM. The complete phased submission of the PDP
documentation as per Appendix II, shall be marked "Issued for Design",
and may include any revisions to the submissions marked "For
Information". BALCHEM shall prepare as soon as practicable a final
document index listing the latest and final revision of each document in
the PDP.
2.2.5 The PDP and all associated documents, prepared by BALCHEM, shall be
copyright protected in favor of BALCHEM and shall remain the exclusive
property of BALCHEM provided, however, that PMD may make sufficient
copies of such documents for its own internal use to the extent necessary
to exercise the rights granted in Article 2 of this AGREEMENT.
2.2.6 At a mutually agreed upon time, but in any event within twenty (20) days
of the EFFECTIVE DATE, a design conference ("DESIGN CONFERENCE") shall be
held between BALCHEM, PMD and PMD's nominees (including the PMC
CONTRACTOR and (if relevant) the EPC CONTRACTOR)) for the purposes:
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(a) set out in Appendix II; and
(b) without limiting subparagraph (a), to agree the PROJECT DESIGN
BASIS (which will be deemed to be agreed once PMD and BALCHEM have
approved the minutes of the DESIGN CONFERENCE).
2.2.7 The DESIGN CONFERENCE shall be held in the offices of the PMC CONTRACTOR
in the UK or such other location to be mutually agreed upon, and will
last for three to five (3-5) working days, unless extended by mutual
agreement between the PARTIES. Each PARTY involved in the DESIGN
CONFERENCE shall bear its own costs associated with the attendance of
personnel at the DESIGN CONFERENCE.
2.2.8 BALCHEM shall permit one engineer to be posted at the site of the
development of the PDP for three months to act as PMD's local
co-ordinator and to carry out various activities including becoming
accustomed with the P & IDs, PFDs and the technical process audit.
MEETINGS
--------
2.2.9 In addition to the DESIGN CONFERENCE, BALCHEM will assign an engineer to
attend the following meetings which are to be held at mutually convenient
times or, failing such agreement, at times to be specified by PMD.
BALCHEM's cost associated with these meetings are included in the PDP FEE
identified in Article 3.2:
o two (2) review meetings at the offices of the PMC
CONTRACTOR in the UK, each for maximum of five (5) working
days.
o two (2) review meetings at the offices of the EPC
CONTRACTOR, each for maximum of three (3) days.
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TRAINING
--------
2.2.10 BALCHEM shall provide the training as specified in, and in accordance
with, Appendix V.
ENGINEERING SERVICES
--------------------
2.2.11 BALCHEM shall provide critical review services, to the extent deemed
necessary by BALCHEM (acting as a competent licensor), of certain
technical documents produced by PMD or its contractors, vendors or
others. This activity is included in the PDP Fee defined in Article 3.2.
2.2.12 BALCHEM shall provide the In-Kingdom services as specified, and in
accordance with, Appendix VII.
2.2.13 BALCHEM shall provide such additional engineering and field support
services (including attending meetings at the offices of the EPC
CONTRACTOR and such assistance as may be necessary during the testing
process and in connection with certifying mechanical completion of the
PLANT) as may be reasonably requested in relation to technology issues.
PMD shall pay BALCHEM for such services in accordance with Article 3.4.
PERFORMANCE TEST
----------------
2.2.14 BALCHEM guarantees that on a PERFORMANCE TEST as provided under the
conditions set forth in Appendix IV, the PLANT will satisfy the
PERFORMANCE GUARANTEES.
2.2.15 In the event that the PERFORMANCE GUARANTEES are not fulfilled during the
third PERFORMANCE TEST, and such failure is for reasons attributable to
BALCHEM, BALCHEM will pay PMD the LIQUIDATED DAMAGES as set out in
Appendix IV.
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ARTICLE 3.0 - CONSIDERATION
---------------------------
3.1 LICENSE FEE
In consideration of the rights and licenses granted to PMD, PMD shall pay
to BALCHEM, the total LICENSE FEE of one million and four hundred
thousand United States Dollars (US$ 1,400,000). The amounts are to become
due and payable thirty (30) calendar days after receipt by PMD of an
invoice with appropriate supporting documents in accordance with the
following schedule:
3.1.1 Fifteen percent (15%) of the LICENSE FEE being two hundred and ten
thousand United States Dollars (US$ 210,000). BALCHEM shall submit an
invoice for such amount on the earlier of the FINANCIAL CLOSE DATE or 31
December 2006.
3.1.2 Thirty five percent (35%) of the LICENSE FEE being four hundred and
ninety thousand United States Dollars (US$490,000). BALCHEM shall submit
an invoice for such amount after mechanical completion of the PLANT as
defined in the EPC CONTRACT.
3.1.3 Fifty percent (50%) of the LICENSE FEE, being seven hundred thousand
United States Dollars (US$700,000). BALCHEM shall submit an invoice for
such amount after the PERFORMANCE TESTS have been successfully completed
(or waived).
3.2 PDP FEE
As consideration for the preparation and delivery of the PDP under
Article 2, including attending the meetings and critical review services
as described in Article 2, PMD shall pay to BALCHEM the total sum of
seven hundred ninety thousand United States Dollars (US$790,000). The
amounts are to be due and payable thirty (30) calendar days after receipt
by PMD of an invoice with appropriate supporting documents in accordance
with the following schedule:
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3.2.1 Forty percent (40%) being three hundred and sixteen thousand United
States Dollars (US$316,000) as a down payment. BALCHEM shall submit an
invoice for such amount after the EFFECTIVE DATE.
3.2.2 Twenty percent (20%) being one hundred and fifty eight thousand United
States Dollars (US$158,000). BALCHEM shall submit an invoice for such
amount upon the submission of the Phase 3 documentation as identified in
Appendix II.
3.2.3 Twenty percent (20%) being one hundred fifty-eight thousand United States
Dollars (US$158,000). BALCHEM shall submit an invoice for such amount
upon the submission of the Phase IV final documentation as identified in
Appendix II.
3.2.4 Twenty percent (20%) being one hundred and fifty eight thousand United
States Dollars ($158,000). BALCHEM shall submit an invoice for such
amount upon submission of the Phase V final documentation as identified
in Appendix II.
3.3 TRAINING FEE
As consideration for providing training as described in Appendix V, PMD
shall pay to BALCHEM the sum of fifty thousand United States Dollars
(US$50,000). BALCHEM may submit an invoice for such amount within thirty
(30) days of commencement of the training services described in Appendix
V.
3.4 ENGINEERING AND FIELD SUPPORT RATES
3.4.1 As compensation to BALCHEM for any engineering support and assistance
provided from BALCHEM's office in the USA, pursuant to Article 2.2.13,
PMD shall pay to BALCHEM a uniform hourly rate of one hundred United
States Dollars (US$ 100) per man-hour(provided that BALCHEM submits to
PMD invoices together with timesheets and a brief explanation of the work
performed). PMD shall effect payment within thirty (30) days of the
receipt by PMD of BALCHEM's invoices, complete in all respect.
3.4.2 As compensation to BALCHEM for any engineering support and assistance
provided outside BALCHEM's office in the USA, pursuant to Article 2.2.13,
PMD shall pay to BALCHEM the uniform per diem rate of Eight hundred
United States Dollars (US$ 800).
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Additionally, PMD will reimburse reasonable expenses towards travel
(business class air for intercontinental flights), accommodation, and
living expenses (provided that BALCHEM submits invoices, time sheets and
brief explanations of work performed and receipts of actual expenses to
PMD). PMD shall effect payment within thirty (30) days of the receipt by
PMD of BALCHEM's invoices, complete in all respect.
3.5 PAYMENTS
All payments to BALCHEM provided for in this AGREEMENT shall be made in
U.S. Dollars.
3.6 TAXES & DUTIES
The payments required to be made under this Agreement in respect of PDP
FEE, LICENSE FEE and outside Kingdom services shall be paid free of all
taxes and deductions whatsoever imposed by or arising as per applicable
laws in the KINGDOM. However, BALCHEM shall bear taxes as applicable on
invoices towards the services rendered in the Kingdom of Saudi Arabia
pursuant to 3.4.2.
3.7 CHANGES TO PDP
PMD may specify any PMD preferences to be taken into consideration in the
preparation of the PDP. Such preferences shall be included at BALCHEM's
discretion. Without prejudice to Article 2.2.6(b), changes initiated by
PMD to the PDP or the PROJECT DESIGN BASIS (subsequent to the DESIGN
CONFERENCE) will be incorporated only if the design proposed by BALCHEM
is unsafe or contrary to the PROJECT DESIGN BASIS. Such changes will be
made at no cost to PMD. Any other change to the PDP or the PROJECT DESIGN
BASIS proposed by PMD if required to be incorporated will be incorporated
by BALCHEM and the additional actual engineering costs incurred by
BALCHEM will be reimbursed by PMD.
ARTICLE 4.0 - EXCHANGE OF IMPROVEMENTS
--------------------------------------
4.1 For the duration of the IMPROVEMENTS PERIOD, BALCHEM and PMD shall meet
annually at BALCHEM'S offices in the USA to exchange information about
the
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IMPROVEMENTS acquired and/or developed by each during the preceding
period of time, if any. Each PARTY shall inform the other PARTY which of
the IMPROVEMENTS of the other PARTY it intends to use. PMD shall, without
additional payment, be entitled to use IMPROVEMENTS of BALCHEM in the
PLANT, and similarly BALCHEM shall, without payment, be entitled to use
IMPROVEMENTS of PMD in its plants.
4.2 BALCHEM shall not be entitled to use IMPROVEMENTS developed by PMD for
any other purpose other than as referred to in Article 4.1, and
specifically shall not be entitled to sub-license such IMPROVEMENTS
developed by PMD to third parties, without first entering into a
co-licensing agreement with PMD. The PARTIES agree to consult and to
negotiate in good faith with a view to agreeing the specific terms of
such an arrangement and acknowledge that PMD shall be entitled to
reasonably share in the benefit (including any monetary benefit) of any
such arrangement.
ARTICLE 5.0 - SECRECY
---------------------
5.1 For a period of fifteen (15) years from the EFFECTIVE DATE, each of PMD
and BALCHEM hereby undertake to use their best efforts to keep secret, to
withhold from third parties (except as authorized herein) and to use only
for purposes connected with this AGREEMENT, all TECHNICAL INFORMATION and
IMPROVEMENTS furnished or disclosed by the other PARTY directly or
indirectly, under this AGREEMENT, except such TECHNICAL INFORMATION or
IMPROVEMENTS, as:
(a) can be proved by the receiving PARTY to have been of public knowledge
at the date of disclosure thereof by the disclosing PARTY; or
(b) can be proved by the receiving PARTY to have been in its possession
prior to disclosure by the disclosing PARTY, provided that the receiving
PARTY has not
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received such TECHNICAL INFORMATION or IMPROVEMENTS directly or
indirectly from the disclosing PARTY; or
(c) shall have become of public knowledge after such disclosure through
no default of the receiving PARTY; or
(d) shall have become legally available to the receiving PARTY from any
third party without restriction on disclosure or use, provided that such
third party has not received such TECHNICAL INFORMATION or IMPROVEMENT(s)
directly or indirectly from the disclosing PARTY under binder of secrecy;
(e) is developed by the receiving PARTY independent of TECHNICAL
INFORMATION or IMPROVEMENTS received from the disclosing PARTY pursuant
to this AGREEMENT, or the EPC CONTRACT, or
(f) required to be disclosed by law.
For the purpose of this paragraph, disclosures made to the receiving
PARTY under this AGREEMENT which are specific, e.g. as to equipment,
PRODUCT, operating conditions, specific materials used, etc. shall not be
deemed to be within the foregoing exceptions merely because they are
embraced by general disclosures in the public domain or in the possession
of the receiving PARTY. In addition, any combination of features shall
not be deemed to be within the foregoing exceptions merely because
individual features are in the public domain or in the possession of the
receiving PARTY, but shall be deemed to be within the foregoing
exceptions only if the combination itself and its principle of operation
are in the public domain or in the possession of the receiving PARTY.
5.2 To the extent legally permissible, the receiving PARTY shall ensure that
its employees who have received TECHNICAL INFORMATION and/or IMPROVEMENTS
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understand their obligations to it to keep secret and confidential all
such TECHNICAL INFORMATION and IMPROVEMENTS during the period of their
employment by the receiving PARTY.
5.3 BALCHEM shall not make an application for, or file, any patent or other
intellectual property right arising out of any IMPROVEMENT developed by
PMD. PMD shall not make an application for, or file, any patent or other
intellectual property right arising out of any IMPROVEMENT developed by
BALCHEM.
5.4 Irrespective of the provisions set forth in Article 5.1 above, PMD shall
have the right to disclose TECHNICAL INFORMATION and/or IMPROVEMENTS to
its financiers (including their technical advisors), the PMC CONTRACTOR,
EPC CONTRACTOR, its other contractors or suppliers or AFFILIATES to the
extent necessary for rendering services for PMD in the design,
engineering, construction, operation, repair, maintenance and/or
expansion of the PLANT, provided that PMD has first obtained from the
recipients thereof signed secrecy undertakings. Such secrecy undertakings
shall be substantially in the form attached hereto as Appendix I (with
such amendments as BALCHEM may approve acting reasonably) or in such
other form as may be acceptable to BALCHEM (acting reasonably).
5.5 Notwithstanding any other provision in this AGREEMENT, PMD may disclose
TECHNICAL INFORMATION of BALCHEM to its AFFILIATES, and to third parties
for the limited purposes of comparing operating data for the PLANT,
developing or modifying operating methods or protocols, developing
additives for the PLANT, or for performing services or supplying
equipment for the PLANT or for expansions or modifications thereof,
provided that PMD has first obtained from the recipients thereof signed
secrecy undertakings. Such secrecy undertakings shall be substantially in
the form attached hereto as Appendix I (with such amendments as BALCHEM
may approve acting reasonably) or in such other form as may be acceptable
to BALCHEM (acting reasonably).
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5.6 Furthermore, PMD and BALCHEM may disclose TECHNICAL INFORMATION and/or
IMPROVEMENTS to governments, governmental agencies, courts and tribunals
and subdivisions thereof to the minimum extent required. However, if
required to disclose to any governmental entity or agency, the PARTY
required to disclose shall immediately notify the PARTY who was the
disclosing PARTY of such TECHNICAL INFORMATION of such requirement. In
addition the disclosing Party shall use every effort to protect the
TECHNICAL INFORMATION in the same manner and to the same extent provided
herein to the extent reasonably possible.
ARTICLE 6.0 -WARRANTIES, INDEMNITIES AND LIABILITIES
----------------------------------------------------
6.1. BALCHEM represents and warrants that it has the right to disclose
TECHNICAL INFORMATION to PMD and to grant to PMD the license granted
herein.
6.2 BALCHEM hereby confirms that it has the right to disclose the TECHNICAL
INFORMATION to PMD in accordance with the terms hereof and that the use
of any portion of the TECHNICAL INFORMATION in accordance with the
license granted hereunder and to the best of its knowledge does not
violate the proprietary or intellectual property rights of any third
party.
6.3 BALCHEM hereby declares that it is not aware of any patent right or other
intellectual property of a third party, which would be infringed by PMD's
use of TECHNICAL INFORMATION in the manufacture of PRODUCTS by the
PROCESS in the PLANT or the design, engineering, construction, operation,
repair or maintenance of the PLANT or the use or sale of PRODUCTS in any
country in the world and BALCHEM agrees to inform PMD promptly of any
patent or other third party intellectual property right becoming known to
BALCHEM which could suggest infringement by use of the PROCESS or any
IMPROVEMENT by PMD in the PLANT or the use or sale of PRODUCTS hereunder.
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6.4.1 If any claim, suit or action for infringement of patents or other
intellectual property rights is brought against PMD arising out of PMD's
use of the TECHNICAL INFORMATION to design, construct, operate, maintain
and repair the PLANT, to manufacture the PRODUCTS, or the use or sale of
the PRODUCTS in accordance with this AGREEMENT, BALCHEM shall during the
TERM of this Agreement,
(a) upon receipt of PMD's written request in writing undertake at
BALCHEM'S own expense the defence of any such claim, suit or
action; and
(b) regardless of whether PMD has requested BALCHEM to undertake
the defence of any such claim, suit or action, indemnify PMD
against, and otherwise hold PMD free and harmless from, damages or
other such sums which may be assessed or may become payable by PMD
under, or any costs (including reasonable legal costs, the cost of
modifying the PLANT and the cost of modifying the manner in which
the PLANT or PROCESS is operated) incurred by PMD arising out of,
any settlement of any such claim, suit or action or any final
decree or judgment in any suit or action.
6.4.2 Where BALCHEM has been requested to undertake the defense of any such
claim, suit or action, BALCHEM shall have sole charge and direction of
the defense of any such suit or action and of all negotiations for such
settlement, but PMD shall be obligated to render all reasonable
assistance which may be required by BALCHEM (provided that associated
costs to PMD shall be reimbursed by BALCHEM). PMD, at its own cost, may
retain counsel of its own selection to advise and consult with BALCHEM'S
counsel.
6.4.3 Neither BALCHEM nor PMD may settle any suit or action without the consent
of the other PARTY if by such settlement the other PARTY is obligated to
make any monetary judgment, to part with any property or any interest
therein, to assume any obligation (including any obligation on PMD to
modify the PLANT or the manner in which the
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PLANT is operated or the PROCESS is used), to be subject to any
injunction, or to grant any license or other rights under its patent
rights. In no event shall any PARTY, in reaching or attempting to reach
such settlement, make any statements, concessions or admissions as a part
thereof which may be adverse to the other PARTY'S interests without first
obtaining the other PARTY'S written consent.
6.5 The total cumulative liability of BALCHEM to PMD with respect to
performance guarantees, in accordance with Appendix 4, and with respect
to patent indemnification as provided in Article 6.4, and with respect to
any other obligation under this AGREEMENT shall not exceed seventy
percent (70%) of the LICENSE FEE.
6.6 PMD shall indemnify, defend and hold BALCHEM, its directors, officers,
employees, agents, and Affiliates harmless from and against all claims by
third parties for death, disease or personal injury resulting from or
arising out of the manufacture, use and sale of the PRODUCT by PMD or any
PMD AFFILIATE; provided, however, that PMD's indemnification obligations
under this Article 6.6 shall not apply (i) to the extent that any such
claim arises out of any breach by BALCHEM of any of BALCHEM's
representations, warranties or covenants hereunder, or (ii) to any claim
arising out of BALCHEM's sole negligence.
6.7 IN NO EVENT SHALL BALCHEM BE LIABLE FOR, AND PMD SHALL INDEMNIFY AND
DEFEND BALCHEM AGAINST, ANY ENVIRONMENTAL, TOXIC WASTE, HAZARDOUS WASTE
OR POLLUTION LIABILITY, OR, EXCEPT TO THE EXTENT COVERED BY LIQUIDATED
DAMAGES OR THE INDEMNITY UNDER ARTICLE 6.4, FOR ANY SPECIAL, INCIDENTAL,
INDIRECT OR CONSEQUENTIAL DAMAGE OF ANY NATURE SUCH AS, BUT NOT LIMITED
TO, LOSS OF PRODUCTION, UNAVAILABILITY OF THE PLANT, LOSS OF ANTICIPATED
PROFITS OR INTEREST ON INVESTMENT, LOSS OF USE OF
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REVENUE, INCREASED EXPENSE OF OPERATION AND WHETHER ANY SUCH CLAIMS OR
DAMAGES ARE BASED ON CONTRACT, TORT OR OTHERWISE.
ARTICLE 7.0 - EXPANSION OF LICENSED CAPACITY
--------------------------------------------
7.1 In the event that PMD, during the TERM of this AGREEMENT, expands the
capacity of the PLANT, such that the expanded capacity of the PLANT
exceeds the LICENSED CAPACITY (plus twenty-five percent (25%), PMD shall
be required to make a one off payment in excess of the LICENSE FEE in the
amount of seventy-five United States Dollars (US$75.00), for each metric
ton of capacity in the PLANT in excess of one hundred and twenty five
percent (125%) of the LICENSED CAPACITY which arises out of the relevant
expansion and shall thereby acquire a fully paid license for such
additional annual design capacity. PMD shall pay such additional license
fee within thirty (30) days of receipt of BALCHEM's invoice therefore, no
later than thirty (30) days after said additional design capacity is
commissioned.
7.2 PMD agrees that for so long as it continues to practice the PROCESS
during the term of this AGREEMENT, it will keep detailed and accurate
records of the character and amount of charge and PRODUCT used and/or
obtained as the case may be, submitting such data to BALCHEM annually.
PMD further agrees that BALCHEM, acting through an outside publicly
recognized auditing firm approved by PMD, which approval shall not
unreasonably be withheld, may at reasonable intervals, upon reasonable
advanced notice, and during normal business hours make such examination
of PMD's operation and production records and may make abstracts from
such records and accounts as may be necessary to verify the license fees
paid and payable under this AGREEMENT. Such auditor shall provide a
statement to BALCHEM after such audit, which will include as a minimum if
the PLANT exceeds the LICENSED CAPACITY, the actual production of PRODUCT
during the period in question.
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ARTICLE 8.0 - VISIT TO PLANT; DESIGN AND OPERATING DATA; FURTHER
----------------------------------------------------------------
EXCHANGE OF IMPROVEMENTS
------------------------
8.1 Provided that BALCHEM complies with the reasonable requests of PMD, PMD
agrees that from time to time during the TERM of this AGREEMENT, BALCHEM
personnel will be permitted to visit the PLANT to review the operation
and take operating data and samples, which information shall be used only
in accordance with Article 4, for improvement.
8.2 Subject to PMD's approval, other licensees of BALCHEM, or potential
licensees of the PROCESS, may also visit, the PLANT, number of visitors
limited to maximum of five (5). Request for such visits shall be
submitted by BALCHEM to PMD at least thirty (30) days in advance, and
approval shall not be unduly withheld.
ARTICLE 9.0 - MISCELLANEOUS
9.1 Transfer and Assignment
Except to an AFFILIATE who will assume all rights and obligations,
neither of the PARTIES shall transfer or assign their respective rights
and obligations under this AGREEMENT to third parties without the prior
written permission of the other PARTY, except however, that PMD may
assign its rights or transfer its obligations under this Agreement to:
(1) any company formed for the purpose of undertaking the project; (2)
the successor to the entire assets and business to which this Agreement
relates; (3) PMD shall be freely entitled, to assign, charge or otherwise
encumber its interests under this Agreement or any right or benefit under
this Agreement in favour of any bank, financial institution or an agent
or trustee of the same providing financing in connection with the
project.
9.2 Entire Agreement
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The PARTIES declare that this AGREEMENT constitutes the entire agreement
between them relating to the PLANT, TECHNICAL INFORMATION and the
PROCESS. There are no understandings, statements or guarantees except as
herein expressly set forth in respect of this AGREEMENT. Neither PARTY
shall claim any representations to the other PARTY or to third parties
which are not expressly stated herein. No change, alteration or
modification hereof shall be effective unless it is made in a written
document signed by both PARTIES.
9.3 Termination
This agreement shall expire at end of TERM, as defined in Article 1.34.
However, PMD shall be entitled to use TECHNICAL INFORMATION and the
PROCESS in the PLANT and BALCHEM and PMD shall remain entitled to use
IMPROVEMENTS and information exchanged pursuant to Article 8.0, even
after the expiration of this AGREEMENT without making any payment
thereafter, except for the expansion of LICENSED CAPACITY. The expiration
of this AGREEMENT shall not relieve BALCHEM or PMD from their obligations
pursuant to Article 5.0.
9.3.1 If either Party to this Agreement ("the Defaulting Party") shall become
bankrupt or insolvent, or has a receiving order made against it, or
compounds with its creditors, or, being a corporation, commences to be
wound up (such winding up not being voluntary for the purpose of
reconstruction or amalgamation whilst solvent), or carries on its
business under an administrative receiver for the benefit of its
creditors or any of them, or has an administrator appointed, or has any
distress levied on its goods, or if events or acts shall occur or be done
in relation to or by PMD to those described in this Article 9.3, then the
other Party ("the Innocent Party") shall be entitled without prejudice to
any other of its rights or remedies, to terminate this Agreement by
notice in writing to the Defaulting Party or to the administrative
receiver, liquidator, administrator or other competent person or body in
whom this Agreement may become vested, or to give such
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administrative receiver, liquidator, administrator, person or body the
option of carrying out this Agreement.
9.3.2 Unless the Parties expressly agree or have expressly agreed otherwise in
writing, this Agreement may be terminated only in accordance with
Articles 9.5 or by the mutual written consent of both Parties.
9.3.3 PMD may, at any time prior to the FINANCIAL CLOSE DATE, and at its sole
convenience, terminate this Agreement by giving written notice to
BALCHEM. If PMD terminates this Agreement under this clause:
(a) BALCHEM shall immediately cease the performance of all work under
the Agreement; and
(b) PMD shall, within ninety (90) days of the date of termination, pay
BALCHEM any amounts which have accrued for payment in accordance
with this Agreement by PMD but which have not been paid.
9.3.4 BALCHEM acknowledges and agrees that BALCHEM 's sole remedy against PMD,
and the limit of PMD's liability to BALCHEM, arising out of or in
connection with the termination of this Agreement under clause 9.3.3
(including for any work carried out by BALCHEM prior to any such
termination), will be for the payment of the amount referred to in clause
9.3.3(b).
9.3.5 Provided PMD shall have fulfilled all of its material duties and
obligations hereunder including the payment of all sums specified in this
Agreement, and provided BALCHEM has received such sums, the following
shall apply:
(a) the grant of rights in Articles 2 shall survive, in perpetuity and
at no further cost, expiration of this Agreement; and
(b) BALCHEM 's obligation to not assert or to arrange for the
non-assertion of any patents included in the TECHNICAL INFORMATION
by reason of PMD's use
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of said PROCESS, Technology and Improvements, to the extent
BALCHEM has agreed hereunder, shall survive, in perpetuity and at
no further cost, expiration of this Agreement.
9.3.6 Termination of this Agreement for whatever cause by either Party shall
not affect any rights accrued or obligations incurred prior to the
effective date of such termination.
9.4 Default
If either PARTY commits a material breach of this AGREEMENT, including
its obligation to make payments as provided in Article 3.1 hereof, the
non-defaulting PARTY may give written notice to the defaulting PARTY
calling attention to such default and, in the event the defaulting PARTY
shall not correct such default within sixty (60) days after such notice,
or if such default is one which reasonably cannot be corrected within
such time, is not diligently pursuing correction of such default, the
non-defaulting PARTY shall have the right to terminate this AGREEMENT
forthwith. Termination of this AGREEMENT by a PARTY shall be without
prejudice to that PARTY of any other remedy it may have. Failure of a
PARTY to exercise any right to terminate this AGREEMENT shall not be
deemed a waiver of such right or of the right so to do for persistence in
default of a continuing nature, or for any subsequent default, or of any
other rights that PARTY may have against the other PARTY by reason of
such default. Termination of this AGREEMENT shall not relieve the PARTIES
of any obligation or liability arising under this AGREEMENT prior to the
EFFECTIVE DATE of such termination, including the payments by PMD in
accordance with Article 3.1 and the PARTIES secrecy obligations pursuant
to Article 5.0.
9.5 Force Majeure
Neither PARTY shall be considered to be in default in the performance of
their obligations hereunder (except for the payment of monies), if such
performance is prevented or delayed because of earthquakes, disturbances,
sabotage, war (whether
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declared or undeclared), invasion, armed conflict or act of foreign
enemy, rebellion, revolution, insurrection, civil war, riot, civil
commotion, blockage, embargo, radioactive contamination or ionizing
radiation, save to the extent that such delay or failure to perform could
have been foreseen, prevented, overcome or remedied (in whole or in part)
by the affected PARTY ("FORCE MAJEURE"). The PARTY prevented from
performing its obligations or duties because of FORCE MAJEURE shall be
required to notify the other Party hereto within fifteen (15) days of the
occurrence and particulars of such FORCE MAJEURE and shall be required to
provide the other PARTY, from time to time, with its best estimate of the
duration of such FORCE MAJEURE and with notice of the termination
thereof. The Party so affected shall use reasonable efforts to avoid or
remove such causes of nonperformance. Upon the expiration of the event of
FORCE MAJEURE the obligation to perform any previously suspended
obligation or duty shall promptly recommence. In the event that the FORCE
MAJEURE continues for a period of more than six (6) months, either PARTY
may terminate this AGREEMENT by notifying the other PARTY in writing.
9.6 Interpretation of Provisions
All parts and contents of this AGREEMENT consist of a sole undertaking
and any part or parts hereof shall not be treated or construed as an
independent undertaking or agreement. Should the same word appear in
several parts of this AGREEMENT and should thereby any ambiguity arise in
the interpretation thereof, the word should be construed in accordance
with the context in which the word appears.
9.7 In the event that any stipulation or stipulations of this AGREEMENT
becomes void, this shall not affect the validity of this AGREEMENT as a
whole. BALCHEM and PMD shall together make arrangements to replace or
amend such incorporative stipulations in order to give effect to the real
intention of the PARTIES.
9.8 Applicable Law
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This AGREEMENT shall be governed by and interpreted in accordance with
the laws of England, excluding its conflict of laws provisions.
9.9 Dispute Resolution
9.9.1 Any dispute that may arise under or in relation to this AGREEMENT shall
be determined by arbitration, unless agreement in writing has been
reached between the PARTIES to the dispute sixty (60) days after formal
written notice of dispute or disagreement has been given by one PARTY to
the other PARTIES to the dispute. The PARTIES agree that service of any
notices in reference to such arbitration at their addresses as given in
this AGREEMENT shall be valid and sufficient.
9.9.2 The arbitration shall be conducted according to the Rules of Arbitration
of the International Chamber of Commerce (the "ICC Rules"), in London, or
another mutually agreeable location. In case of conflict between the ICC
Rules and the provisions of this clause, the provisions hereof shall
prevail.
9.9.3 The arbitral tribunal shall consist of three arbitrators. Each PARTY to
the dispute shall appoint one arbitrator. If a PARTY fails to appoint its
arbitrator within a period of twenty (20) days after receiving notice of
the arbitration, then such arbitrator shall be appointed pursuant to the
procedures of the ICC Rules. If there are fewer than three PARTIES to the
dispute, the third arbitrator shall be appointed pursuant to the
procedures of the ICC Rules.
9.9.4 Arbitrators shall be persons with experience of the implementation and
interpretation of contracts relating to the design, engineering,
construction, operation and maintenance of projects of a similar nature
to the project. No arbitrator shall be a present or former employee or
agent of, or consultant or counsel to, any PARTY or any affiliate
thereof.
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9.9.5 Any decision rendered by the arbitral tribunal, including the arbitral
award shall be treated in secrecy by the arbitral tribunal and the
PARTIES.
9.9.6 Each PARTY shall bear its costs and expenses incurred with the
arbitration, including solicitors' fees. The PARTIES shall also share
equally the arbitrators' fees and expenses provided, however, that the
arbitrators may provide for alternative allocation of such expenses to a
PARTY.
9.9.7 If any dispute:
9.9.7.1 raises issues which are substantially the same as, or connected
with, or touch upon, or concern issues raised in any dispute or
difference arising out of or in connection with the EPC Contract
or the tri-partite agreement referred to in Article 9.11 (a
"Related Project Dispute"); or
9.9.7.2 arises out of, or touches upon, or concerns substantially the
same facts as are the subject of a Related Project Dispute,
then notwithstanding that arbitrators may have been agreed or appointed
under this AGREEMENT (but subject to clause 9.8), PMD may, by written
notice to BALCHEM, the EPC CONTRACTOR and the arbitrators who have
already been agreed or appointed hereunder, require the reference of any
such dispute to be referred to and finally settled by the arbitral
tribunal appointed or to be appointed under the EPC Contract in respect
of any such related dispute ("Joint Tribunal").
9.9.8 The Joint Tribunal shall become the arbitral tribunal in respect of any
dispute or difference between the PARTIES. The PARTIES shall be bound by
any directions or orders made by the Joint Tribunal as to their joinder
in any arbitration proceedings under the EPC Contract and shall also be
bound by any procedural directions and any subsequent award made by the
Joint Tribunal.
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9.9.9 Article 9.8 shall not apply in respect of any dispute after a hearing on
the merits has commenced in any arbitration under this Article 9.
9.9.10 In the event of the revocation of the authority of arbitrators who have
already been agreed or appointed under this AGREEMENT by reason of the
notice given by PMD under Article 9.7, the cost of the cancelled
arbitration (including the arbitrators' fees) shall be dealt with by the
Joint Tribunal as costs in that arbitration. Pending such determination,
the fees of the arbitrators whose authority has been revoked shall be
paid in equal portions by the PARTIES.
9.9.11 It is not intended that this clause shall operate so as to deprive any
PARTY to a dispute of anything which, apart from this clause, would be a
valid claim or defence. Accordingly, all claims and defences which were
originally made in the cancelled arbitration shall be deemed for all
purposes to have been brought when made and not be affected in any way by
the revocation of the authority of the arbitrators or the cancellation of
the arbitration pursuant to Articles 9.7 and 9.9 so that the position of
either PARTY to the dispute shall not thereby be prejudiced with respect
to any rule of law, statute, regulation or contractual provision which
imposes a time limit on the commencement of proceedings or the right to
any remedy.
9.9.12 The Joint Tribunal in determining any dispute shall consider all evidence
which it may think pertinent to that dispute which is filed or called by
a PARTY to the arbitration proceedings.
9.9.13 Notwithstanding any reference to arbitration hereunder the PARTIES shall
continue to perform their respective obligations under this AGREEMENT
unless the PARTIES otherwise agree.
9.10 Export of Technical Data
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PMD understands that the TECHNICAL INFORMATION and IMPROVEMENTS provided
by BALCHEM under this AGREEMENT may only be used in connection with the
license granted under this AGREEMENT and PMD may not export any such
TECHNICAL INFORMATION, IMPROVEMENTS or the PLANT itself without the prior
written consent of BALCHEM. PMD confirms that the TECHNICAL INFORMATION
to be provided by BALCHEM and the PLANT to be erected are intended for
civil use only.
9.11 Tri partite agreement
BALCHEM shall, upon written request from PMD, execute and enter into a
tripartite agreement substantially on the terms set out in Appendix VI.
9.12 Language
This agreement shall be executed in English language. All communications
between the Parties concerning anything within the scope of this
Agreement shall be in the English language.
IN WITNESS WHEREOF, the PARTIES have duly executed these presents the
day, month and year hereunder written against the relevant signature.
Balchem Corporation Project Management and Development
Co., Ltd.
By s/Xxxx X. Xxxxx By s/Xxxxx X. Xx Xxxxxx
--------------- --------------------
Title President and CEO Title President and CEO
----------------- -----------------
Date October 13, 2005 Date October 18, 2005
---------------- ----------------
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