TECHNOLOGY LICENSE AGREEMENT
Exhibit
10.4
This
Technology License Agreement (the “Agreement”) is made and entered into March 8,
2007 between S-R-S Energy, Inc., a Company incorporated under the laws of the
State of Delaware (“SRS” or the “Licensor”), and Bio-Products International,
Inc. (“Bio-Products” or the “Licensee”), a Company incorporated under the laws
of the State of Alabama. The Licensor and Licensee may hereinafter be either
individually referred to as the “Party” or collectively referred to as the
“Parties”.
PREMISES:
Whereas,
pursuant to a Technology License Agreement dated September l9, 2005, SRS was
granted an exclusive license by Bio-Products to utilize certain technology
in
commercial scale MSW processing and recycling facilities in the United States
of
America (“USA”) in which the cellulosic biomass product of the process
technology is used specifically for the production of fuel grade ethanol;
and
Whereas,
SRS desires to grant, and Bio-Products desires to obtain, a limited,
non-exclusive license back to the technology SRS originally licensed from
Bio-Products pursuant to the Technology License Agreement dated September 9th,
2005.
Now,
therefore, in consideration of the premises and the mutual covenants contained
herein, the Parties hereto agree as follows:
ARTICLE
I – DEFINITIONS
Terms
in
this Agreement shall have the same meanings as set forth in the Technology
License Agreement dated September 19, 2005.
ARTICLE
1I – GRANT OF LICENSE
2.1 Subject
to the terms and conditions of this Agreement, SRS hereby grants a
non-exclusive, limited license to Bio-Products to utilize the Technology to
construct and operate up to five (5) commercial scale MSW processing and
recycling facilities in the United States of America (“USA”) in which the
cellulosic biomass product of the process Technology is used specifically for
the production of fuel grade ethanol. It is understood that Bio-Products may
not
operate or control the actual USA facility in which the Technology will be
used
for the production of fuel grade ethanol. Accordingly, the Parties agree and
acknowledge that the rights granted herein allows Bio-Products to sub-license
its rights to the entity which operates or controls the facility using the
Technology for the production of fuel grade ethanol.
2.2 Unless
extended, terminated or replaced by agreement of the Parties hereto, the license
term shall be perpetual.
ARTICLE
III – FEES, ROYALTIES, AND OTHER CONSIDERATION
3.1 It
is the intent of the parties that the Technology be used to process waste,
including MSW, into a cellulosic biomass product that can be used as a feedstock
specifically for conversion into fuel grade ethanol. Bio-Products shall pay
to
SRS Energy a Process Royalty of twenty-five cents ($.25) for every ton (dry
weight) of the cellulosic biomass product that is used as a feedstock
specifically for conversion into fuel grade ethanol by Bio-Products pursuant
to
this Agreement. Such Process Royalty payments shall become payable on the
thirtieth (30th) day following the end of the calendar month in which such
amount becomes due and owing until this Agreement or any extension thereof
expires or is terminated. To the extent a sublicensee operates the facility
as
provided herein, payment shall be due from Bio-Products fifteen (15) days after
Bio-Products receives payment from the sublicense. SRS agrees that no Process
Royalty shall be due and payable with respect to the cellulosic biomass product
processed at any facility until such facility has been in operation for thirty
(30) Operating Days. Bio-Products shall pay said Process Royalty by wire
transfer of funds to a SRS bank account.
3.2 Bio-Products
shall maintain all such books and records as are necessary to accurately
determine all amounts due and payable to SRS under this Agreement, which books
and records Bio-Products shall make reasonably available, upon the submission
of
a written request from SRS for inspection by SRS and/or its designated
representative at a time mutually convenient to Bio-Products and SRS. SRS agrees
to treat all such information respecting Bio-Products’ books and records as
confidential.
ARTICLE
IV – REPRESENTATIONS AND WARRANTIES
4.1 Each
party represents and warrants, as of the date hereof, that it is a corporation,
duly organized, validly existing and in good standing and has all requisite
power and authority, corporate and otherwise, to execute, deliver, observe,
and
perform its obligations under, this Agreement. The execution, delivery and
performance by each party have been duly authorized by all necessary corporate
action and does not and will not violate the respective party’s Articles of
Incorporation or Bylaws.
4.2 OTHER
THAN THE EXPRESS WARRANTY PROVIDED IN PARAGRAPH 4.1, THE LICENSE GRANTED HEREIN
IS “AS IS”, AND ALL OTHER WARRANTIES ARE HEREBY DISCLAIMED BY SRS ENERGY. SRS
ENERGY SHALL NOT BE REQUIRED OR OBLIGATED TO PROVIDE BIO-PRODUCTS WITH ANY
TECHNICAL INFORMATION OR KNOW-HOW.
ARTICLE
V – EVENTS OF DEFAULT AND REMEDIES
5.1 Bio-Products
shall be in breach of this Agreement in the event of its failure to make any
payment hereunder on or before the date on which such payment becomes due and
payable and the continuation of such failure remains unremedied for thirty
(30)
days after written notice thereof has been given to Bio-Products.
5.2 Bio-Products
may terminate this Agreement at any time upon six (6) months prior written
notice to SRS Energy, at which time the license granted herein shall terminate
and Bio-Products shall pay to SRS Energy any royalties, fees and other amounts
accrued through the date of such termination. Immediately upon termination
of
this Agreement all rights, privileges and licenses granted to Bio-Products
hereunder shall revert to SRS Energy, including all sub-licenses of facilities
granted by Bio-Products.
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5.3
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(a)
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Any
claim or controversy arising out of or relating to this Agreement,
or the
breach thereof, including without limitation the right of any Party
hereto
to terminate this Agreement, shall be settled by binding arbitration
administered by the American Arbitration Association in accordance
with
its then current Commercial Arbitration Rules, and judgment upon
the award
rendered by the arbitrator may be entered in any court having jurisdiction
thereof. The arbitration shall be before one neutral arbitrator
to be
selected in accordance with the then current Commercial Arbitration
Rules
of the American Arbitration Association. The parties shall have
all rights
to pre-arbitration discovery pursuant to the Federal Rules of Civil
Procedure.
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(b)
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Neither
of the Parties nor the arbitrator may disclose the existence, content
or
results of any arbitration hereunder without the prior written consent
of
the Parties except to counsel, accountants, and other need to know
professionals.
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(c)
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All
fees and expenses of the arbitration shall be born by the Parties
equally.
However, each Party shall bear the expense of its own counsel, experts,
witnesses, and preparation and presentation of
proofs.
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(d)
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In
the event that a claim or controversy over the right of any Party
to
terminate this Agreement shall be submitted for arbitration, this
Agreement shall continue in full force and effect, and the termination
shall be of no effect, until the arbitrator renders a final
decision.
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ARTICLE
VI – GENERAL PROVISIONS
6.1 The
titles of the various articles and sections of this Agreement are solely for
convenience of reference and are not part of this Agreement for purposes of
interpreting the provisions hereof.
6.2 The
Licensee may assign all of its rights and obligations under, and all of its
interest in, this Agreement, including without limitation the license granted
hereby, either (i) in a transaction accompanied by the sale or other transfer
of
the Licensee’s entire business, its stock, or substantially all of its assets,
or (ii) to any other entity owned by the same shareholders of Licensee and
this
Agreement shall be binding upon, and inure to the benefit of, any such successor
or assign of the Licensee, provided that SRS consents in writing, such consent
shall not be unreasonably conditioned, withheld, or delayed.
6.3 Nothing
in this Agreement shall be deemed or construed to constitute or to create a
partnership, joint venture or agency between the Parties. Except as may be
otherwise provided herein, neither Party shall have any authority to bind the
other Party in any respect.
6.4 If
any provision of this Agreement is or becomes unenforceable under any law of
mandatory application, it is the intent of the Parties hereto that such
provision will be deemed severed and omitted herefrom, the remaining portions
hereof to remain in full force and effect as written.
6.5 The
waiver by any Party of any failure on the part of any other Party to perform
any
of its obligations under this Agreement shall not be construed as a waiver
of
any failure or continuing failure or failures, whether similar or dissimilar
thereto.
6.6 This
Agreement, including the exhibits hereto, constitutes the entire Agreement
between the Parties with respect to the subject matter hereof and supersedes
all
prior and contemporaneous agreements between the Parties, whether oral or
written, related to the subject matter hereof. This Agreement may be amended
or
modified only by a written instrument executed by the authorized representatives
of the Parties hereto.
6.7 This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed to be a duplicate original, but all of which, taken together, constitute
a single document. This Agreement may be executed by each Party on separate
copies, which copies, when combined so as to include the signatures of all
Parties, shall constitute a single counterpart of this Agreement.
6.8 This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Alabama.
6.9 Each
Party to this Agreement shall execute all instruments and documents and take
all
actions as may be reasonably required to effectuate this Agreement.
6.10 For
purposes of venue and jurisdiction, this Agreement shall be deemed made and
to
be performed in the City of Huntsville, Alabama.
6.11 This
Agreement and all exhibits contain the entire agreement between the Parties
to
this Agreement with respect to the subject matter of this Agreement, is intended
as a final expression of such Parties’ agreement with respect to such terms as
are included in this Agreement, is intended as a complete and exclusive
statement of the terms of such agreement, and supersedes all negotiations,
stipulations, understandings, agreements, representations and warranties, if
any, with respect to such subject matter, which precede or accompany the
execution of this Agreement.
6.12 Whenever
the context so requires in this Agreement, all words used in the singular shall
be construed to have been used in the plural (and vice versa), each gender
shall
be construed to include any other genders.
6.13 Subject
to any restriction on transferability contained in this Agreement, this
Agreement shall be binding upon and shall inure to the benefit of the
successors-in-interest and permitted assigns of each Party to this Agreement.
Nothing in this Paragraph shall create any rights enforceable by any Third
Party
that is not a Party to this Agreement, except for the rights of the
successors-in-interest and permitted assigns of each Party to this Agreement,
unless such rights are expressly granted in this Agreement to other specifically
identified Third Parties.
6.14 Except
as otherwise provided in this Agreement, in the event any litigation,
arbitration, mediation, or other proceeding (“Proceeding”) is initiated by any
Party against any other Party to enforce, interpret or otherwise obtain judicial
or quasi-judicial relief in connection with this Agreement, the prevailing
Party
in such Proceeding shall be entitled to recover from the unsuccessful Party
all
costs, expenses, and reasonable attorneys’ fees relating to or arising out of
(a) such Proceeding (whether or not such Proceeding proceeds to judgment),
and
(b) any post- judgment or post-award proceeding including without limitation
one
to enforce any judgment or award resulting from any such Proceeding. Any such
judgment or award shall contain a specific provision for the recovery of all
such subsequently incurred costs, expenses, and actual attorneys’
fees.
6.15 Any
notice or other communication pursuant to this Agreement shall be sufficiently
made or given five days after the date sent, postage pre-paid, by certified
mail, return receipt requested, if sent to the following addresses, or to such
other address as the Party may from time to time designate to the other Parties
in writing:
In
the
case of Bio-Products:
Xx.
Xxxxxxx X. Xxxx, President & CEO
BIO-PRODUCTS
INTERNATIONAL, INC.
0000
Xxxxxxxx Xxxx, XX
Xxxxxxxxxx,
Xxxxxxx 00000 XXX
000-000-0000
(phone)
000-000-0000
(cellular)
000-000-0000
(fax)
xxxxxx@xxx.xxx
(email)
In
the
case of SRS Energy, Inc
Xxxxxx
X.
Xxxxxxxxx, President
SRS
Energy, Inc.
0000
Xxxxxxx Xxxx., Xxxx 000
Xx.
Xxxxx, XX 00000
000-000-0000
(phone)
000-000-0000
cellular)
000-000-0000
(fax)
xxxxxxxxxxxxx@xxxxxxxxx.xxx
(email)
Each
Party shall make a reasonable, good faith effort to ensure that it will accept
or receive notices to it that are given in accordance with this paragraph.
A
Party may change its address for purposes of this paragraph by giving the other
Parties written notice of a new address in the manner set forth
above.
6.16 In
the event either Party hereto shall be rendered wholly or partly unable to
perform its obligations under this Agreement by reason of causes beyond its
control, including but not limited to acts of Nature, acts of terrorism, acts,
omissions, or regulation of any government or agency thereof, judicial action,
labor disputes, or transportation failure, except as specified herein, the
performance of the obligations of such Party insofar as it is affected by such
condition shall be suspended for the duration of such condition, provided the
Party affected advises the other Party of the basis of its inability within
ten
(10) days of the beginning of such known inability. After the cessation of
the
condition causing such inability, the Party suffering such inability shall
have
a period of thirty (30) days to restore its operation(s) and restore its
obligations to the other Party.
6.17 No
representations have been made to any Party regarding taxes, it being understood
by each of the Parties that each such Party accepts full responsibility for
calculation of and payment of his or its taxes, levies, duties or other charges
incurred or imposed as a consequence of this Agreement and the transactions
described herein.
6.18 This
Agreement shall become effective when it has been executed by all of the Parties
to this Agreement.
IN
WITNESS WHEREOF, the. Parties have caused their duly authorized
representatives to duly execute and deliver this Agreement effective as of
the
date written above.
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BIO-PRODUCTS
INTERNATIONAL, INC.
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SRS
ENERGY, INC.
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By:
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/s/
Xxxxxxx X. Xxxx
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By:
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/s/
Xxxxxx X. Xxxxxxxxx, Xx.
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Xx.
Xxxxxxx X. Xxxx, President & CEO
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Xxxxxx
X. Xxxxxxxxx, Xx. President
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Date:
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/s/
3-8-07
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Date:
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/s/
3/8/07
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