AGREEMENT
Exhibit
4(a)(vi)
THIS
AGREEMENT (“Agreement”), by and between Valcent Products, Inc., an Alberta
Canada corporation, having a place of business at Xxxxx 000, 000 Xxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxx (“VPI”) and Xxxxxxx Xxxx Xxxxx, residing at
0000 Xxxxx Xxx Xxx, Xx Xxxx, Xxxxx 00000 (“Xxxxx”),
WITNESSETH
WHEREAS,
Xxxxx has entered into, concurrently herewith, a Consulting Agreement and
an
Invention License Agreement with MK Enterprises LLC, a Nevada corporation,
having a place of business at 0000 Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxx 00000
(“MK”);
WHEREAS,
MK has entered into, concurrently herewith, a Master License Agreement and
Product Development Agreement with VPI for the commercialization of past,
present and future new products conceived and developed by MK through the
efforts of Xxxxx;
WHEREAS,
VPI wishes for the continuation of the services of Xxxxx in the event of
the
termination of the Product Development Agreement;
NOW,
THEREFORE, in consideration of the mutual covenants and obligations hereinafter
set forth and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. The
Product Development Agreement between VPI and MK has a term of five years
(“Five-Year
Term”).
2. In
the
event that the Product Development Agreement is terminated for whatever reason
prior to the expiration of the Five Year Term, Xxxxx agrees to enter into
agreements with VPI similar to the Consulting Agreement and Invention License
Agreement for the remaining portion of the Five Year Term of the Product
Development Agreement.
3. This
Agreement shall terminate upon the expiration of the Five Year Term of the
Product Development Agreement.
4. If
a
dispute arises between the parties regarding this Agreement, the parties
agree
to resolve the dispute in the following manner:
(a) Negotiation.
(1) The
parties shall attempt in good faith to resolve any dispute arising out of
or
relating to this Agreement promptly by negotiation between executives of
the
parties who have authority to settle the controversy. Any party may give
the
other party written notice of any dispute not resolved in the normal course
of
business. Within 15 days after delivery of the notice, the receiving party
will
submit to the other a written response. The notice and the response will
include
(i) a statement of each party's position and a summary of arguments supporting
that position, and (ii) the name and title of the executive who will represent
that party and of any other person who will accompany the executive. Within
30
days after delivery of the disputing party's notice, the executives of both
parties will meet at a mutually acceptable time and place, and thereafter
as
often as they reasonably deem necessary, to attempt to resolve the dispute.
All
reasonable requests for information made by one party to the other will be
honored.
(2) All
negotiations pursuant to this clause are confidential and will be treated
as
compromise and settlement negotiations for purposes of applicable rules of
evidence.
(b) Non-binding
Mediation.
If the
dispute has not been resolved by negotiation within 60 days of the disputing
party's notice, or if the parties failed to meet within 45 days, the parties
will endeavor to settle the dispute by mediation under the presently effective
Center for Public Resources (“CPR”) Model Procedure for Mediation of Business
Disputes. The neutral third party will be selected from the CPR Panels of
Distinguished Neutrals with the assistance of CPR.
(c) Arbitration.
Any
controversy or claim arising out of or relating to this Agreement, or the
enforcement, breach, termination or validity thereof, that has not been resolved
by mediation pursuant to the preceding paragraph within 90 days from the
appointment of a neutral third party will be settled by arbitration in
accordance with the CPR Rules for Non-Administered Arbitration of Business
Disputes in effect on the date of this Agreement, by a sole arbitrator. If
the
parties cannot agree upon an arbitrator for a panel recommended by CPR, then
CPR
will select the arbitrator. Any other choice of law clause to the contrary
in
this Agreement notwithstanding, the arbitration will be governed by the United
States Arbitration Act, 9 U.S.C. § 1-16, and judgment upon the award rendered by
the Arbitrator may be entered by any court having jurisdiction thereof. The
place of the arbitration will be Houston, Texas. Insofar as the proceeding
relates to patents, it will also be governed by 35 U.S.C. § 294, to the extent
applicable. The arbitrator is not empowered to award trebled, punitive or
any
other damages in excess of compensatory damages, and each party irrevocably
waives any claim to recover any such damages. The arbitrator will make a
reasoned award. If the result achieved in arbitration by the party instituting
the arbitration is not more favorable to that party than the last offer made
by
the other party during the mediation, the former party will reimburse the
legal
fees, expert fees and other expenses reasonably incurred by the latter in
the
arbitration.
5. General
5.1 Binding
Agreement.
This
Agreement shall be binding upon the successors and assigns of the parties
hereto. Nothing contained in this Agreement shall be construed to place the
parties in the relationship of legal representatives, partners, or joint
ventures.
5.2 Applicable
Law.
This
Agreement shall be construed, interpreted and applied in accordance with
the
laws of the State of Texas.
5.3 Notices.
All
notices, demands or other writings in this Agreement provided to be given
or
made or sent, or which may be given or made or sent, by either party hereto
to
the other, shall be deemed to have been fully given or made or sent when
made in
writing and deposited in the United States mail, first class, postage prepaid,
sent certified or registered mail, and addressed to the addresses first
hereinabove given or at such other address as either party hereto may specify
by
notice given in accordance with this paragraph.
5.4 Waiver.
Each
party covenants and agrees that if the other party fails or neglects for
any
reason to take advantage of any of the terms hereof providing for the
termination of this Agreement, or if, having the right to declare this Agreement
terminated, such other party shall fail to do, any such failure or neglect
shall
not be or be deemed or be construed to be a waiver of any subsequently occurring
cause for the termination of this Agreement, or as a waiver of any of the
terms,
covenants or conditions of this Agreement or the performance thereof. None
of
the terms, covenants or conditions of this Agreement can be waived except
by the
written consent of the waiving party. Except as otherwise stated herein,
each of
the parties hereby waives any claims which it might have against the other
prior
to the date of execution of this Agreement.
5.5 Force
Majeure.
Neither
party hereto shall be liable to the other party for failure or delay in the
performance of any duties or obligations hereunder due to strikes, lockouts,
acts of God, acts of war, fire, flood, explosions, embargo, litigation or
labor
disputes, Government or any other laws and regulations, or any other cause
beyond the control or without the fault of such party.
5.6 Scope
of Agreement.
This
Agreement constitutes the entire agreement between the parties pertaining
to the
subject matter hereof.
5.7 Construction.
The
parties acknowledge that each party and its counsel have reviewed and revised
this Agreement and that the normal rule of construction to the effect that
any
ambiguities are to be resolved against the drafting party shall not be employed
in the interpretation of this Agreement or any amendments or exhibits
hereto.
5.8 Headings.
The
subject headings of the paragraphs of this Agreement are included for purposes
of convenience only, and shall not effect the construction or interpretation
of
any of its provisions.
5.9 Counterparts.
This
Agreement may be executed in one or more counterparts, and also executed
shall
constitute one agreement, binding on both parties hereto, notwithstanding
that
both parties are not signatory to the same counterpart.
5.10 Severability.
If any
part or parts of this Agreement are found to be illegal or unenforceable,
the
remainder shall be considered severable, shall remain in full force and effect,
and shall be enforceable.
5.11 Further
Documents.
Each of
the parties shall take all necessary actions, including the execution and
delivery of all necessary documents or instruments, as may be reasonably
requested by the other party in order to effectuate the intent of this
Agreement.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement in duplicate
originals, individually, or by their duly authorized officers or
representatives, as of the date of the last party to execute this
Agreement.
| VALCENT PRODUCTS, INC. | ||
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Name:
Title:
Date:
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Xxxxxxx
Xxxx Xxxxx
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Xxxxxxx
Xxxx Xxxxx
Date:
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