Exhibit 10.18
Joint Venture Agreement
This Joint Venture Agreement ("Agreement") is entered into as of this the
21st day of August, 2008, by and between Baytown Green Energy Consortium, a
Texas corporation ( "Baytown" ), with its principal business address of 0000
Xxxxxxx 000 Xxxxx, Xxxxxxx, XX 00000 and Xxxxxxx Enterprises, Inc., a Nevada
corporation ("Xxxxxxx"), with its principal business address of 0000 XX Xxxxxx
Xxxx, Xxxxxxxxx, XX 00000;
WITNESSETH:
WHEREAS, Xxxxxxx and Baytown desire to form Xxxxxxx Green Energy
Consortium, Inc., a Nevada corporation ("WGEC"), for the purpose of developing,
obtaining regulatory approval, commercializing and promoting products, which
shall initially reflect the intellectual property of Baytown which shall be
licensed to WGEC pursuant to the terms of this Agreement; and
WHEREAS, Xxxxxxx shall be involved in raising capital, building key
infrastructure, and management for WGEC to carry out the terms and conditions of
this Agreement and the joint venture; and
WHEREAS, Baytown is the owner or exclusive licensee of for intellectual
property related to its own unique breakthrough technology for production of
biocrude from sustainable biomass sources; besides the biocrude, i.e., liquid
biofuel, the output will be biogas as well as ash-fertilizer; and
WHEREAS, Baytown shall contribute pursuant to the license terms set forth
in this Agreement, the Intellectual Property which shall be used to comprise the
initial products for WGEC; and
WHEREAS, the parties hereto acknowledge that Baytown and its affiliates own
and control an undisclosed catalytic process which shall not be part of the
licensed rights hereunder (the "Catalyst");
NOW THEREFORE, for good and valuable consideration, receipt of which is
hereby acknowledged, and the mutual promises and benefits to be derived by the
parties, they do hereby agree to the following terms and conditions:
ARTICLE 1
ORGANIZATION
Section 1.1 FORMATION OF JOINT VENTURE UNDER THIS AGREEMENT.
(a) FORMATION OF WGEC, INC. Upon execution of this Agreement, Xxxxxxx
shall form Xxxxxxx Green Energy Consortium, Inc., as a new StateplaceNevada
corporation ("WGEC"). At Closing, WGEC shall issue 8,000,000 newly issued
common shares to Baytown, and 2,000,000 newly issued common shares to Xxxxxxx.
Xxxxxxx shall also form a corporation for the ownership of the Xxxxxxx
Enterprises Algae Plant ("WE Algae"). WE Algae shall issue 8,000,000 newly
issued common shares to Xxxxxxx and 2,000,000 newly issued common shares to
Baytown.
(b) BAYTOWN SHARES. Upon execution of this Agreement, Baytown will issue
such number of shares of its common stock to Xxxxxxx as shall equal 10% of the
common stock of Baytown then outstanding.
(c) OPERATIONS OF THE COMPANY. The parties agree that:
(i) OFFICERS AND DIRECTORS. The Annual Meeting of the Shareholders
of WGEC shall be held between April 1 and April 30 of each year. At this annual
meeting the officers and directors of the Corporation shall be elected. The
officers for the 2008 calendar year shall be:
[name executive officers and directors]
(ii) ADDITIONAL SHAREHOLDERS. WGEC shall not issue any equity or debt
security without the consent of Baytown and Xxxxxxx.
(d) DISTRIBUTIONS. The distribution from WGEC to Baytown and Xxxxxxx will
be made with a priority distribution right as follows: (i) First, a pro rata
repayment of the parties' cash equity contribution and (ii) Thereafter, dividend
will be paid according to ownership ratio.
ARTICLE 2
EXCLUSIVE LICENSE
Section 2.1 GRANT OF LICENSE.
For purposes of this Agreement:
"Confidential Information" means the confidential subject matter of Intellectual
Property Rights, financial information and other commercially valuable
information in whatever form including unpatented inventions, trade secrets,
formula, know-how, discoveries, works, improvements, innovations, ideas,
concepts, graphs, drawings, designs, samples, devices, models and other
materials which a Party labels or identifies as confidential to it. The
following are exceptions to such information:
(a) information which as at the date of this Agreement is already
legally in the public domain;
(b) information which after the date of this Agreement becomes part of
the public domain otherwise than as a result of an unauthorised disclosure
by the receiving Party;
(c) information which is or becomes available to the receiving Party
from a third party lawfully in possession of such information and who has
the lawful power to disclose such information to the receiving Party;
(d) information which is rightfully known by the receiving Party (as
shown by its written record) prior to the date of disclosure to it in
accordance with this Agreement; or
(e) information which is independently developed by an employee of the
receiving Party who has no knowledge of the disclosure to it in accordance
with this Agreement;
"Improvements" means any improvements to the Technology made or owned by WGEC
"Intellectual Property Rights" or "IPR" means the statutory and other rights in
respect of patents, designs, circuit layouts, copyrights, confidential
information and all other intellectual property rights defined in Article 2 of
the Convention Establishing the World Intellectual Property Organization of July
1967;
"Know-how" means unregistered Intellectual Property Rights and Confidential
Information;
"Patents" means those patent rights set forth on Schedule A hereto;
"Products" means products for applications in biofuels incorporating the Baytown
Intellectual Property Rights as further described in Schedule B hereto
"Technology" means the Patents, Know-how and Confidential Information of Baytown
made available to WGEC under this Agreement, which shall specifically not
include information relating to the Catalyst;
"Territory" means the States or Oregon, Washington and Idaho only;
Immediately upon formation of WGEC, Baytown hereby grants to WGEC an exclusive
right and license throughout the Territory to utilize the Technology as
permitted by this Agreement subject to the terms and conditions hereof, in any
manner whatsoever, in connection with the operation of WGEC' business
(hereinafter referred to as "License Rights"). With the prior written consent
of Baytown, WGEC shall also have the ability to sublicense the Technology to any
other person or entity in the Territory. Any agreement to sublicense shall
include all default, termination and confidentiality provisions contained in
this AgreementWhitman and WGEC acknowledge and agree that Baytown has other
agreements, joint ventures and other licenses reflected in other places in the
World outside of the Territory which shall remain the separate property of
Baytown, and which may be developed, commercialized and marketed separately from
this Agreement.
Section 2.2 OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS AND IMPROVEMENTS. WGEC
acknowledges that Baytown is the exclusive owner of the Technology subject only
to the License Rights. WGEC acknowledges agrees and understands that the
Technology may not be the only Patents, Intellectual Property Rights, Know how
or other Products utilized in either Baytown's or WGEC's business.
If during the term of this Agreement, WGEC makes any Improvements, WGEC hereby
grants Baytown or such other entity nominated by Baytown, an exclusive,
irrevocable, royalty and fee free license with the right to sub-license to use
and commercialize the Improvements; or.
Section 2.3 SUPPORT. Baytown or such other entity agreed by Baytown and WGEC
for (which arrangements Baytown agrees that it shall be responsible) shall
provide reasonable telephonic and electronic mail ("e-mail") support to WGEC on
an as needed basis, during Baytown's regular business hours.
Section 2.4 DUTIES OF WGEC WITH RESPECT TO LICENSE.
(a) WGEC shall at all times during the Term of this Agreement be entitled to
maintain and defend the Technology and prosecute, at its cost, claims to
prohibit any interference with the Technology by third parties. If and in the
event that WGEC becomes aware of any interference with the Technology by any
party, WGEC shall immediately notify Baytown thereof in writing, providing all
information known to WGEC or reasonably obtained by WGEC with respect to such
interference. WGEC may file and/or record any and all necessary forms or
documentation relating to the operation of its business, including, but not
limited to, any state application for registration of fictitious name, but it is
specifically understood and agreed that WGEC shall under no circumstances be
permitted to file, record or register any trademark, tradename or other
identifying material of Baytown, or to utilize any of the foregoing in
connection with its promotion of the business and operations of the Baytown,
without the prior consent of Baytown, in writing, the granting or withholding of
such consent shall be in the sole judgment and discretion of Baytown.
(b) WGEC hereby indemnifies Baytown as the owner and licensor of the
Intellectual Property, the subject of the license, its officers and employees,
against all claims which may be brought against any one of them or them by a
third party under any cause of action including but not limited to breach of
contract, negligence, infringement of intellectual property, tort or breach of
statutory duty, in respect of any loss, death, injury, illness or damage
(whether personal or property) howsoever arising out of any exploitation of the
Intellectual Property by WGEC, and from and against all damages, costs and
expenses (including legal disbursements on a full indemnity basis and other
legal costs on a solicitor client basis) incurred in defending or settling any
such claim, but the indemnified liability will be reduced to the extent that the
liability is caused by the negligence, wilful act or omission or breach of
contract on the part of the indemnified party.
(c) WGEC must obtain and maintain appropriate insurance as is customary in
the industry from a sound and reputable insurer, including product liability and
third party liability insurances, sufficient to cover the indemnity under this
section 2.4 and provides Baytown with evidence on an ongoing basis that such
insurance has been obtained and that all premiums have been fully paid; and as
far as reasonably obtainable at (in Baytown's reasonable opinion) a reasonable
cost, all the IP Parties are named as co-insured parties on all insurances
referred to in this section 2.4,
Section 2.5 APPLICABLE LAWS. At all times WGEC shall conduct its business in
accordance with all material applicable federal, state and local laws,
regulations and ordinances. WGEC shall not, either during or after the Term of
this Agreement, do anything, or aid or assist any other party to do anything,
which would materially infringe on, harm, impair, or contest the rights granted
herein to WGEC with respect to the Licensee Rights.
Section 2.6 BAYTOWN OPERATIONS. This Agreement shall in no way whatsoever
affect the business activities of the Baytown presently in operation in Texas
and any other operations of Baytown elsewhere in the World and shall not
constitute any restriction upon such activities.
Section 2.7 TERM. Unless terminated in accordance with Section 2.8 of of this
Agreement, this Agreement shall be effective as of the date of execution of this
Agreement and shall remain in effect for the remainder of the year 2008 and the
ten (10) calendar year period thereafter ("Initial Term"). Provided that WGEC
is not in default of any material obligation to Baytown in accordance with the
terms of this Agreement, and provided that this Agreement has not previously
been terminated in accordance with the provisions here, WGEC shall have the
right to renew such License and Agreement for an additional ten (10) calendar
year period following the Initial Term by giving Baytown notice, in writing, of
its election to renew this Agreement, which such notice shall be given not more
than 180 days nor less than 60 days prior to the expiration of the Initial Term
of this Agreement. In the event Baytown determines that WGEC may not renew this
Agreement because of a default in a material obligation to Baytown, it shall
immediately provide WGEC with notice of such default and shall provide WGEC the
right to cure such default within 60 days, upon satisfaction of which the
election to renew this Agreement shall be immediately effective.
Section 2.8 TERMINATION OF AGREEMENT Notwithstanding any other provision of
this Agreement, this Agreement may be terminated by either Party upon written
notice to the other Party if:
(a) the other Party fails to cure a material breach of any provision of
this Agreement within 60 calendar days from its receipt of written notice from
said Party (unless such breach cannot be reasonably cured within said 60
calendar days and the other Party is actively pursuing curing of said breach);
or
(b) the other Party commits fraud or serious neglect or misconduct in the
discharge of its respective duties hereunder or under the law; or
(c) the commencement by or against WGEC of any voluntary or involuntary
proceeding under any bankruptcy, reorganization, arrangement, insolvency,
readjustment or debt, receivership, dissolution, or liquidation law or statute
or any jurisdiction, whether now or hereafter in effect; or the adjudication of
WGEC as insolvent or bankrupt by a decree of a court of competent jurisdiction.
Section 2.9 EFFECT OF TERMINATION. On the termination of this Agreement, the
License Rights and all rights and obligations of the parties hereunder shall
automatically terminate except for such rights of action as shall have accrued
prior to such termination and any obligation which expressly or by implication
may be intended to come into or continue in force on or after such termination.
WGEC shall, (i) at its own expense, return to Baytown or otherwise dispose of as
Baytown may instruct, all technical and promotional materials and other
documents and papers whatsoever sent to Baytown and relating to the Patents,
Confidential Information, Products or the business of Baytown and WGEC (other
than correspondence between the parties, copies of which shall be delivered to
Baytown) and all property of Baytown in WGEC' possession or under its control,
and (ii) immediately cease the use of the Technology.
ARTICLE 3
RIGHTS AND DUTIES UNDER THIS AGREEMENT.
Section 3.1 RIGHTS AND DUTIES OF BAYTOWN. Baytown shall:
(a) Provide access to any and all information, patents, backup and
research related to the Technology in accordance with the terms of the License
Right hereunder.
(b) Provide WGEC full access to all necessary related technology and
supplies, including supplies for the catalytic process for the Oregon,
Washington State and Idaho market.
(c) Provide 80% of project financing at reasonably marketable terms.
(d) Assist WGEC to advance the ongoing development, maintenance and
prosecution of any and all intellectual property relating to the Technology,
including without limitation future improvements and related intellectual
property.
(e) Provide delivery of plants with four (400) reactors (i.e., four
reactors is one unit) at a cost of Twenty Million US Dollars ($20 million) per
Unit.
Section 3.2 RIGHTS AND DUTIES OF XXXXXXX. Xxxxxxx shall:
(a) Complete the incorporation of Xxxxxxx Green Energy Consortium, Inc. as
a placeNevada corporation in the placeUnited States, together with the
completion of any and all applicable and required corporate records, filings and
other matters to assure compliance with applicable placeNevada corporate and US
Securities laws.
(b) Within a reasonable term, receive a first mini-reactor for final
testing.
(c) Develop a complete business plan for the operation of WGEC, which shall
include delivery of the first four hundred (400) reactors for installation in
the Territory.
(d) Contribute Twenty Million US Dollars ($20 Million) immediately upon
execution of this Agreement. Ten Million US Dollars ($10 Million) of these funds
shall be utilized for equity for the Fifty Million US Dollars ($50 Million)
algae plant in Oregon and the remaining Ten Million US Dollars ($10 Million)
will be utilized to buildup completion of the first unit (4) reactors in
Baytown, Texas.
(e) Working together with Baytown, use its best efforts to obtain further
capitalization and funding required for the operation of WGEC, including without
limitation development, manufacture and commercialization of the Technology.
(f) Introduce and secure key management for WGEC reasonably satisfactory to
the Board of Directors of WGEC.
(g) Assist WGEC to develop and execute a marketing plan for the Technology
including the establishment of a customer support center as necessary to
commercialize the Technology in the Territory.
Section 3.3 RIGHTS AND DUTIES OF WGEC. WGEC shall:
(a) WGEC shall be responsible for any and all operations in the
completion, development, manufacture and commercialization of the Technology in
the Territory for the term of this Agreement.
(b) WGEC shall undertake appropriate and necessary business development
activities in relation to the commercialization of the Technology in the
Territory.
(c) WGEC agrees to provide Baytown and Xxxxxxx with accounts which shall be
compiled in accordance with generally accepted accounting principles
consistently applied in the United States, and which shall be subject to an
annual audit. WGEC shall provide such accounting on a quarterly basis and either
Baytown or Xxxxxxx may inspect such books upon reasonable notice and at any
reasonable time. It is understood and agreed that the method of accounting used
by WGEC shall be the accrual method and that the accounting year shall be the
calendar year. WGEC acknowledges and agrees that when and if it completes a
public offering, WGEC shall have formal reporting obligations with the United
States Securities and Exchange Commission and any and all books and records
shall be required to comply with the rules and regulations required for such
periodic financial reporting.
(d) After execution of this Agreement WGEC shall have full right, power
and authority to do everything necessary or desirable in connection with the
development and commercialization of the Technology in the Territory, and,
without limiting the generality of the foregoing, the right, power and authority
to:
(i) employ and engage such employees, agents and independent
contractors as it may consider necessary or advisable to carry out its
duties and obligations hereunder and in this connection to delegate any of
its powers and rights to perform its duties and obligations hereunder; and
(ii) to undertake expenditures as in accordance with budgets developed
and mutually approved from time-to-time, and in accordance with the
provisions herein
(iii) to manage, direct and control all development and other
operations relating to the Technology in the Territory, in a prudent and
workmanlike manner, and in compliance with all applicable laws, rules,
orders and regulations;
(iv) to prepare and deliver to the Parties annual work plans and
budgets and during periods of active work to provide monthly and quarterly
progress reports of the work in progress within 14 days of the end of the
relevant period;
(v) subject to the terms and conditions of this Agreement and the
developed budgets, to keep the Technology in good standing free of liens,
charges and encumbrances of every character arising from operations,
(except liens for taxes not yet due, other inchoate liens and liens
contested in good faith by WGEC), and to proceed with all diligence to pay
or contest or discharge any lien that is filed;
(vi) to maintain true and correct books, accounts and records of
operations;
(vii) to permit Baytown and Xxxxxxx to inspect, take abstracts from or
audit any or all of the records and accounts during normal business hours;
(viii) to obtain and maintain, or cause any contractor engaged
hereunder to obtain and maintain, during any period in which active work is
carried out hereunder adequate insurance;
(ix) to arrange for and maintain worker's compensation or equivalent
coverage for all eligible employees engaged by WGEC in accordance with
local statutory requirements;
(x) to transact, undertake and perform all transactions, contracts,
employments, purchases, operations, negotiations with third parties and any
other matter or thing undertaken by WGEC;
(xi) to diligently advise Baytown and Xxxxxxx of any material change
in the status or results of the commercialization of the Technology, to
take all necessary acts in respect to such changes, and to assist the
parties to produce timely coordinated public announcements.
(xii) to not, except as authorized or required by WGEC' duties
hereunder, reveal or divulge to any person or companies any information
concerning the organization, business, finances, transactions or other
affairs of Baytown or Xxxxxxx, or of any of their subsidiaries, which may
come to WGEC' knowledge during the continuance of this Agreement, and WGEC
will keep in complete secrecy all confidential information entrusted to
WGEC and will not use or attempt to use any such information in any manner
which may injure or cause loss either directly or indirectly to either
Baytown's or Xxxxxxx'x business. This restriction will continue to apply
after the termination of this Agreement without limit in point of time but
will cease to apply to information or knowledge which may come into the
public domain.
(xiii) to comply with all laws, whether federal, provincial or state,
applicable to WGEC' duties hereunder and, in addition, hereby represents
and warrants that any information which WGEC may provide to any person or
company hereunder will be accurate and complete in all material respects
and not misleading, and will not omit to state any fact or information
which would be material to such person or company.
(xiv) to undertake general analysis of and planning for the design,
engineering, development and operation of any of the Technology in the
Territory;
(xv) to apply for, obtain and maintain, all necessary governmental
approvals or permits necessary in connection with any exploration
activities, any other pre-feasibility work, any feasibility study or the
development, operation or expansion of any of the Technology in the
Territory;
(xvi) be responsible for the setup of necessary organization and
perform operations of the plants in the Territory, including setup of
long-term contracts with power companies;
(xvii) in close cooperation with Baytown, identify and secure
long-term agreements of low-cost, sustainable energy;
(xviii) to do all such other acts and things as WGEC shall determine
to be necessary or advisable in connection with any activities relating to
the Technology in the Territory.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
Section 4.1 REPRESENTATIONS AND WARRANTIES OF BAYTOWN. Baytown hereby makes
the following representations and warranties to Xxxxxxx and WGEC.
(a) Baytown has full power and authority to license the Technology and,
such Technology is owned or otherwise licensed to Baytown free and clear without
any liens or encumbrances.
(b) The execution, delivery and performance of this Agreement by Baytown,
and the consummation of the transactions contemplated hereby, will not with or
without the giving of notice of the lapse of time or both, (i) violate any
material provision of law, statute, rule or regulation to which Baytown is
subject, (ii) violate any judgment, order, writ or decree to which Baytown is a
party or by which it is or may be bound; or (iii) result in any material breach
of or conflict with any term, covenant, condition or provision of, or result in
the modification or termination of, or constitute a default under or result in
the creation or imposition of any lien, security interest, charge or encumbrance
upon the Technology being licensed hereunder, under the corporate charter or
by-laws or any other agreement, understanding or instrument to which Baytown is
a party or by which it is or may be bound or affected.
(c) All necessary action has been taken by Baytown to authorize the
execution, delivery and performance of transactions contemplated by this
Agreement. This Agreement has been duly and validly authorized, executed and
delivered by Baytown and constitutes the valid and binding obligation of Baytown
enforceable against it in accordance with its terms, except as enforceability is
limited by (1) any applicable bankruptcy, insolvency, reorganization, moratorium
or similar law affecting creditors' rights generally or (2) general principles
of equity, whether considered in a proceeding in equity or at law.
(d) All necessary consents and approval required for licensing the
Technology have been obtained or will be obtained, including without limitation
any and all approvals required by any agency of the United States government.
No consent of any court, governmental agency or other public authority is
required as a condition to the enforceability of the transactions contemplated
by this Agreement.
(e) There is no action of law, in equity, arbitration proceeding,
governmental proceeding or investigation pending, or to Baytown's knowledge
threatened against Baytown. Baytown is not in default with respect to any
decree, injunction or other order of any court or other jurisdiction with
respect to any of the Patents or Intellectual Property to be licensed hereunder.
(f) Baytown has conducted its business in compliance with all material
national, state and local laws, regulations and ordinances.
(g) Baytown has no actual knowledge at the date of this Agreement and has
no reason to believe that the Technology will not provide the technology and
information necessary to effectuate the business intended in this Agreement.
Section 4.2. XXXXXXX REPRESENTATIONS. Xxxxxxx hereby makes the following
representations and warranties to Baytown and WGEC.
(a) Xxxxxxx is a Company duly organized, validly existing and in good
standing under the laws of the State of Nevada and is qualified or licensed as a
foreign corporation in any other jurisdiction where said licensing is required.
Xxxxxxx has the full power and authority to conduct the business in which it is
engaged and will be engaged upon completion of the transaction contemplated
herein.
(b) The execution and delivery of this Agreement by Xxxxxxx and the
performance of Xxxxxxx'x obligations hereunder have been duly authorized and
approved by all requisite corporate action on the part of Xxxxxxx pursuant to
applicable law. Xxxxxxx has the power and authority to execute and deliver this
Agreement and to perform all its obligations hereunder.
(c) This Agreement and any other documents, instruments and agreements
executed by Xxxxxxx in connection herewith constitute the valid and legally
binding agreements of Xxxxxxx, enforceable against Xxxxxxx in accordance with
their terms, except that (i) enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws of general
application affecting the enforcement of the rights and remedies of creditors;
and (ii) the availability of equitable remedies may be limited by equitable
principles.
(d) Neither the execution, delivery nor performance of this Agreement or
any other documents, instruments or agreements executed by Xxxxxxx in connection
herewith, nor the consummation of the transactions contemplated hereby: (i)
constitutes a violation of or default under (either immediately, upon notice or
upon lapse of time) the Articles of Incorporation or Bylaws of Xxxxxxx, any
provision of any contract to which Xxxxxxx may be bound, any judgment or any
law; or (ii) will or could result in the creation or imposition of any
encumbrance upon, or give to any third person any interest in or right to, the
any capital stock of Xxxxxxx; or (iii) will or could result in the loss or
adverse modification of, or the imposition of any fine or penalty with respect
to, any license, permit or franchise granted or issued to, or otherwise held by
or for the use of, Xxxxxxx; or (iv) violate any applicable law or order
currently in effect to which Xxxxxxx is subject.
(e) Xxxxxxx is not a party to, the subject of, or threatened with any
litigation nor, to the best of Xxxxxxx'x knowledge, is there any basis for any
litigation. Xxxxxxx is not contemplating the institution of any litigation.
ARTICLE 5
GENERAL PROVISIONS
Section 5.1 COMPLETE AGREEMENT; AMENDMENT; NOTICE.
(a) ENTIRE AGREEMENT. This Agreement embodies the entire understanding of
the parties, and any changes must be made in writing and signed by all parties.
(b) AMENDMENT. This instrument may be amended or modified only by an
instrument of equal formality signed by all of the respective parties hereto.
(c) NOTICE. All notices under this Agreement shall be in writing and shall
be delivered by personal service, or by certified or registered mail, postage
prepaid, return receipt requested, to the Parties of the Agreement (and where
required, to the person required to be copied with the notice) at the addresses
herein or at such other address as the addressee may designate in writing, and
to the Agreement at its principal place of business as set forth below, and
shall be effective upon receipt (or refusal to accept).
The addresses for notices to the Parties of the Agreement are as follows:
If to Baytown:
Baytown Green Energy Consortium, Inc.
0000 Xxx 000 Xxxxx
Xxxxxxx, XX 00000
Copy to
Xxxxxx Law Group
place3206 West Wimbledon Dr
placeplaceAugusta, placeGA place30909
Attn: M. Xxxxxxx Xxxxxx
If to Xxxxxxx:
Xxxxxxx Enterprises, Inc.
0000 XX Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
Section 5.2 ATTORNEYS FEES.
Should any litigation be commenced between the parties hereto or their
representatives, or should any party institute any proceeding in a bankruptcy or
similar court which has jurisdiction over any other party hereto or any or all
of his or its property or assets concerning any provision of this Agreement or
the rights and duties of any person or entity in relation thereto, the party or
parties prevailing in such litigation shall be entitled, in addition to such
other relief as may be granted, to a reasonable sum as and for his or its or
their attorneys fees and court costs in such litigation or in a separate action
brought for that purpose.
Section 5.3 VALIDITY.
In the event that any provision of this Agreement shall be held to be
invalid or unenforceable, the same shall not affect in any respect whatsoever
the validity or enforceability of the remainder of this Agreement.
Section 5.4 SURVIVAL OF RIGHTS.
Except as provided herein to the contrary, this Agreement shall be binding
upon and inure to the benefit of the parties signatory hereto, their respective
heirs, executors, legal representatives, and permitted successors and assigns.
Section 5.5 GOVERNING LAW.
This Agreement has been entered into in the state of Texas, and all
questions with respect to this Agreement and the rights and liabilities of the
parties hereto shall be governed by the laws of Texas, and the venue of any
action brought hereunder shall be in the State of Tevada.
Section 5.6 WAIVER.
No consent or waiver, express or implied, by a Party of the Agreement to or
of any breach or default by another Party of the Agreement in the performance by
such other Party of the Agreement of its obligations hereunder shall be deemed
or construed to be a consent or waiver to or of any other breach or default in
the performance by such other Party of the Agreement hereunder. Failure on the
part of a Party of the Agreement to complain of any act or failure to act of
another Party of the Agreement or to declare another Party of the Agreement in
default, irrespective of how long such failure continues, shall not constitute a
waiver by such Party of the Agreement of its rights hereunder. The giving of
consent by a Party of the Agreement in any one instance shall not limit or waive
the necessity to obtain such Party of the Agreement consent in any future
instance.
Section 5.7 REMEDIES IN EQUITY.
The rights and remedies of any of the Parties of the Agreement hereunder
shall not be mutually exclusive, i.e., the exercise of one or more of the
provisions hereof shall not preclude the exercise of any other provisions
hereof. Each of the Parties of the Agreement confirm that damages at law may be
an inadequate remedy for a breach or threatened breach of this Agreement and
agree that, in the event of a breach or threatened breach of any provision
hereof, the respective rights and obligations hereunder shall be enforceable by
specific performance, injunction, or other equitable remedy, but nothing herein
contained is intended to, nor shall it, limit or affect any rights at law or by
statute or otherwise of any party aggrieved as against the other for a breach or
threatened breach of any provision hereof, it being the intention by this
Section to make clear the agreement of the Parties of the Agreement that the
respective rights and obligations of the Parties of the Agreement hereunder
shall be enforceable in equity as well as at law or otherwise.
Section 5.8 SUCCESSORS AND ASSIGNS.
The rights and obligations of this Agreement may be not assigned by Xxxxxxx
or Baytown to any successor or assignee without the express written agreement
of the other, which agreement may be withheld in such party's sole discretion.
Section 5.9 CONFIDENTIAL INFORMATION.
Each of Baytown, Xxxxxxx and WGEC hereby acknowledges and agrees that all
information disclosed to each other whether written or oral, relating to the
other's business activities, its customer names, addresses, all operating plans,
information relating to its existing services, new or envisioned products or
services and the development thereof, scientific, engineering, or technical
information relating to the others business, marketing or product promotional
material, including brochures, product literature, plan sheets, and any and all
reports generated to customers, with regard to customers, unpublished list of
names, and all information relating to order processing, pricing, cost and
quotations, and any and all information relating to relationships with
customers, is considered confidential information, and is proprietary to, and is
considered the invaluable trade secret of such party (collectively "Confidential
Information"). Any disclosure of any Confidential Information by any party
hereto, its employees, or representatives shall cause immediate, substantial,
and irreparable harm and loss to the other. Each party understands that the
other desires to keep such Confidential Information in the strictest confidence,
and that such party's agreement to do so is a continuing condition of the
receipt and possession of Confidential Information, and a material provision of
this agreement, and a condition that shall survive the termination of this
Agreement. Consequently, each party shall use Confidential Information for the
sole purpose of performing its obligations as provided herein.
Section 5.10 COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original and all of which shall constitute one and the
same Agreement.
Section 5.11 FURTHER ASSURANCES.
Each party hereto agrees to do all acts and things and to make, execute,
and deliver such written instruments as shall from time to time be reasonably
required to carry out the terms and provisions of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first above set forth.
BAYTOWN GREEN ENERGY CONSORTIUM, INC.
\s\ Xxxx Xxxxxx
---------------
By: Xxxx Xxxxxx, Chief Executive Officer
XXXXXXX ENTERPRISES, INC.
\s\ Xxxx Xxxxxxx
----------------
By: Xxxx Xxxxxxx, President
The undersigned has reviewed the foregoing agreement and agrees with the
conditions, terms and other provisions contained therein.
L SOLE' , S.A.
\s\ Xxxxxx Sole'
----------------
By: Xxxxxx Sole'
