Exhibit 10.0
PRODUCT DEVELOPMENT, PRODUCTION AND MARKETING AGREEMENT
THIS PRODUCT DEVELOPMENT, PRODUCTION AND MARKETING AGREEMENT
(this "Agreement") made as of this 4th day of April, 2006 (the
"Effective Date"), by and between (a) Modec, Inc., a Colorado
Corporation with its principal business address at 0000 Xxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxx 00000 ("Modec"), and (b) Xxxxx'x Liquid
Gold-Inc. a Colorado Corporation, and SLG Chemicals, Inc., a
Colorado corporation, each with its principal business address
at 0000 Xxxxxx Xxxxxx, Xxxxxx, XX 00000 (collectively and separately
these two corporations are referred to as "SLG").
RECITALS
WHEREAS, Modec has the rights to license, produce, sell and
distribute certain products identified in Section 1.1 hereto for use
in the mitigation, remediation and decontamination of mold and mycotoxin
contamination; and
WHEREAS, Modec has used and tested the Products (as defined
below) and found them be safe and effective in the mitigation,
remediation and decontamination of mold and mycotoxin; and
WHEREAS, Modec desires to assist with and grant to SLG the
right to develop, produce and market the Products and SLG desires
to fill, package and market the Products, subject to the terms and
conditions set forth in this Agreement; and
NOW THEREFORE, in consideration of the foregoing premises
and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Definitions: In addition to terms that may be defined
throughout this Agreement, the following capitalized terms shall
have meanings set forth below:
(a) "Affiliate" shall mean, with respect to a party,
any Person directly controlling, controlled by or under common
control with, such party.
(b) "Channels" shall mean sales of the Product referred
to herein to or through the following:
(i) Hardware and Do It Yourself.
(ii) Grocery.
(iii) Mass Merchant, including, by way of example
and without limitation, Wal-Mart, K-Mart, Target and other national
and regional discount retail stores.
(iv) Drug Stores.
(v) Other Retail Stores.
(vi) Consumer Direct Web Site(s) developed and
maintained by SLG.
(vii) Retail Web Merchants, excluding web sites
of (x) distributors who are sold Product by Modec that are
intended for resale to professional mold remediators, and
(y) professional mold remediators who are sold Product by
Modec or such distributors; provided however, that Modec hereby
covenants and agrees that during the term of this Agreement,
Modec shall not sell or otherwise provide any Product to any
distributor, professional mold remediator or other third party
that Modec knows or has reason to know intends to resell such
Product for the purpose of retail sales.
(viii) Direct to Consumer Advertising including
but not limited to direct response TV (DRTV) and direct mail.
(c) "Confidential Information" shall mean information,
whether in written, verbal, magnetic, photographic, optical, or
other form, disclosed to or obtained by one party from another
party either prior to or during the term of this Agreement which
is non-public and has been designated as being confidential, or
which is otherwise disclosed in such a manner or is of such a
character as would put a reasonable person on notice as to the
confidential and proprietary nature of the information (including,
without limitation, discoveries, technical and non-technical data
and information, technology, formulae, know-how, trade secrets,
methodologies, concepts, techniques, financial data, patent
applications, manufacturing methods, processes, drawings, designs,
specifications, market research data, marketing or business plans,
research and development, identity of customers, identity of
suppliers, manufacturers and other vendors, and product information,
including the nature and source of raw materials, product formulation and
methods of producing, testing and packaging) and which relates to
the disclosing party's past, present or future research, development
or business activities or consists of third party Confidential
Information. Confidential Information shall not, however, include
information that a party can demonstrate by tangible evidence:
(i) is or becomes generally known to the public
other than as a result of a breach by a party hereto (or any of its
Affiliates) of its obligations of confidentiality contained herein;
(ii) is known by the receiving party prior to
disclosure by the other party; or
(iii) was developed by the receiving party
independent of any disclosure by the other party;
(iv) is subsequently, lawfully and in good faith
obtained by the receiving party on a non-confidential basis from a
third party as shown by documentation sufficient to establish the third
party as the source of the information, provided that such third party was
not under an obligation to treat such information in a
confidential manner and had a lawful right to make such disclosure.
(d) "Damages" shall mean all damages, liabilities,
expenses (including reasonable attorney's fees and expenses), losses,
judgments, settlement amounts, fines, penalties and other
similar assessments.
(e) "Force Majeure" shall have the meaning ascribed
to that term in Section 13.7 herein.
(f) "Improvement" shall mean any innovation, variation,
enhancement, derivative, modification, improvement or changes
relating to the Products, including, without limitation, any
derivative product(s), new product(s) or product line(s), whether
patentable or not or capable of being protected by other means,
limited to use for the mitigation, remediation and decontamination
of mold and mycotoxin.
(g) "IP Rights" means all forms of intellectual property
rights and protections throughout the world, whether arising under
United States (state or federal) or foreign statutory law, common law, or
by contract, and whether or not perfected or currently existing or
hereafter developed or acquired or recognized, including without
limitation, all: (i) patents and all filed, pending or potential
applications for patents, including any patent disclosures,
utility models, reissues, reexaminations, divisions, renewals,
extensions, provisionals, continuations or continuations-in-part;
(ii) discoveries, developments, inventions (whether or not
patentable or reduced to practice), useful articles, concepts,
ideas, improvements, designs (ornamental or otherwise), compositions
of matter, manufacturing and production processes and techniques,
technical data and information, drawings, specifications, customer
and supplier lists, pricing and cost information, trade secrets,
know-how, rights to confidential or other proprietary information;
(iii) copyrightable works, copyrights and all applications,
registrations and renewals in connection therewith; (iv) mask
works and all applications, registrations and renewals in
connection therewith; (v) moral rights, literary property or
authors' rights, and equivalent rights; (vi) proprietary indicia,
trademarks, service marks, trade names, trade dress, logos,
symbols, domain names, logos and/or brand names (including all
applications, registrations and renewals related thereto) and
all goodwill associated therewith; (vii) innovations, variations,
enhancements, modifications, improvements or changes relating to
any of the foregoing; (viii) contract and/or licensing rights
relating to any of the foregoing; and (ix) all copies and tangible
embodiments thereof (in whatever form or medium).
(h) "Indemnified Party" shall have the meaning ascribed
to that term in Section 9.1 hereof.
(i) "Indemnifying Party" shall have the meaning
ascribed to that term in Section 9.1 hereof.
(j) "Initial Term" shall have the meaning ascribed to
that term in Section 10.1 hereof.
(k) "Modec Confidential Information" shall mean all
Confidential Information relating to and/or necessary or useful for the
commercial exploitation of the Products, which is now or hereafter
owned or licensed by Modec and which Modec has the lawful right
to disclose, irrespective of whether the same shall be the subject
of patents, patent applications or other forms of protections or
applications therefor and consisting of or contained or exhibited
in any form whatsoever. Modec Confidential Information includes
all toxicology, clinical and other scientific data relating to
the Technology or any Product.
(l) "Modec Trademarks" shall mean the trademarks or
service marks of Modec related to the Products, as identified on
attached Exhibit B.
(m) Reserved.
(n) "Person" shall be broadly interpreted to mean an
individual, partnership, joint venture, limited liability
company, association, corporation, and any other form of business
organization, government, regulatory or governmental agency,
commission, department or instrumentality.
(o) "Product" or "Products" shall mean the Modec Decon
Formulation 500 Series (MDF-500) for the mitigation, remediation
and decontamination of mold and mycotoxin, Part A and /or Part B
separately or combined, as delivered through a spray, foam,
aerosol or other delivery system or device(s) as registered under
FIFRA with the US Environmental Protection Agency, and any
Improvements thereto. The parties recognize that SLG may in the
future launch a consumer product version of MDF-500 in its
powder form during the term of this Agreement, and such powder
form shall also be considered a Product. Hereinafter, Product(s)
may also be referred to as "MDF-500".
(p) "Purchase Price" shall have the meaning ascribed to that
term in Section 5.1 and Exhibit A hereof.
(q) "Renewal Term" shall have the meaning ascribed to that
term in Section 10.1 hereof.
(r) "Specifications and Standards" shall mean the official
written standards used in formulating the Products, including,
without limitation, any and all application protocols designated
herein, which are attached as Exhibit C, but excluding the specific
formula for MDF-500.
(s) "Technology" shall mean all IP Rights owned or
licensed by Modec, whether or not such items are patentable,
copyrightable, or protectible as trade secrets or otherwise, relating
to and/or necessary or useful for the commercial exploitation of the
Products, including, but not limited to, the Modec Confidential
Information, and any Improvements to the foregoing, whether now
or hereafter owned or licensed by Modec.
(t) "Territory" shall mean North America.
ARTICLE 2
GRANT OF RIGHTS; INFRINGEMENT
2.1 Grant of Rights: Modec hereby grants to SLG a
royalty-free, exclusive right and license, with right to
sublicense (upon Modec's written consent, which consent shall
not be unreasonably withheld, conditioned or delayed), to use,
develop, produce, market, offer and sell, and have developed,
produced, marketed, offered and sold, the Products and any
Improvements thereto in the Territory through the Channels
covered by this Agreement. SLG will retain product naming and
private labeling rights for the Products.
2.2 Right to Xxx Infringers:
(a) In the event that Modec learns of the infringement or
misappropriation of any rights with respect to any Products sold,
marketed or distributed in the Territory through the Channels
covered by this Agreement, Modec immediately shall notify SLG in
writing and shall provide SLG with reasonable evidence of such
infringement or misappropriation. Modec shall not notify any
third party of such infringement or misappropriation without
first obtaining the written consent of SLG, which consent will
not be unreasonably withheld. The parties will use good faith
and commercially reasonable efforts in cooperation with each
other to resolve such matter without litigation.
(b) SLG shall have the first right, but not the
obligation, to take and control any action and/or initiate suit
regarding any alleged infringement or violation of any rights
with respect to any Products sold, marketed or distributed in
the Territory through the Channels covered by this Agreement.
Modec may bring suit for such infringement or misappropriation
if and only if SLG elects not to commence suit and notifies
Modec of such election in writing.
(c) Any legal action under this Section 2.2 shall be at
the expense of the party initiating the legal action. If legal
action is brought by SLG, all damages, awards, settlement proceeds
or other recovery or special or punitive damages shall belong
solely and exclusively to SLG. If legal action is brought by
Modec, all damages, awards, settlement proceeds or other recovery
or special or punitive damages shall belong solely and exclusively
to Modec. Legal action brought jointly by SLG and Modec and fully
participated in by both will be at the joint expense of the
parties and all recoveries will be shared jointly by them in
proportion to the share of expenses paid by each.
(d) Each party shall cooperate with the other in
proceedings instituted hereunder, provided expenses are borne
by the party bringing suit. Litigation shall be controlled by
the party bringing suit, except that SLG shall control the
litigation if brought jointly. Notwithstanding anything herein
to the contrary, either party shall have the right, at any time,
to employ separate counsel of its choice and to join and
participate in any suit brought by the other party, but the fees
and expenses of such counsel shall be at the expense of such party.
(e) Notwithstanding anything herein to the contrary,
neither party shall settle or compromise any such suit without
the other party's written consent, such consent not to be
unreasonably withheld, delayed or conditioned.
2.3 Nature of Relationship: This Agreement does not
constitute or create (and the parties do not intend to create
hereby) a joint venture, pooling arrangement, partnership, or
formal business organization of any kind between Modec and SLG,
and the rights and obligations of the parties shall be only those
expressly set forth herein. Each of Modec and SLG is an
independent contractor engaged in the operation of its own
respective business. Neither party shall be considered to be
an agent of the other for any purpose whatsoever. Each party
shall be responsible for providing its own personnel workers'
compensation, medical coverage or similar benefits, and any life,
disability or other insurance protection. Each party shall be
solely responsible for the payment of social security benefits,
unemployment insurance and pension benefits with respect to its
own employees, withholding any required amounts for income and
other employment-related taxes with respect to its own employees
and the provision of any other benefits to its own employees.
Neither party has the power or authority to act for, represent,
or bind the other in any manner except as specifically set forth
in this Agreement.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
3.1 Representation and Warranties of Modec: Modec
represents, warrants and covenants to SLG as follows:
(a) Modec shall use its best efforts to maintain its
license (a copy of which accompanies this document as Exhibit A) with
Sandia National Laboratory "Sandia", License Agreement Number 00-C00872
(the "License Agreement"), in good standing. Should Modec breach
any term of the License Agreement, Modec, in addition to using
Modec's best efforts to promptly cure such breach, shall
immediately notify SLG of such breach. SLG shall have the right,
at its option, to assist Modec, and Modec will cooperate with SLG,
in connection with promptly curing any such breach; provided,
however, that (i) SLG shall not directly contact Sandia National
Laboratory in connection therewith without the consent of Modec,
(ii) the remedy set forth in this Section is cumulative and
in no way limits or waives any other rights or remedies
available to SLG, and (iii) SLG's obligations in connection
therewith shall be limited solely to those obligations expressly
set forth in this Agreement. Notwithstanding anything herein to
the contrary, any breach of any terms or conditions of the License
Agreement by Modec that would adversely affect in any way the
rights of SLG hereunder with respect to the Products shall be
deemed to be a breach of this Agreement by Modec.
(b) Modec has and shall use its best efforts to
continue to have during the term of this Agreement, the right to
manufacture and distribute the MDF-500 in the manner set forth in
this Agreement.
(c) Modec is not currently, and shall use its best efforts
during the term of this Agreement to not become, prohibited by
any law, rule or regulation or by any judgment, order, directive
or policy from selling the MDF-500 to SLG or entering into this
Agreement.
(d) All consents, approvals, authorizations and orders
necessary for the execution, delivery and performance of this
Agreement by Modec have been, and will be during the term of this
Agreement, duly and lawfully obtained. Modec has a valid
licensable interest in and to the Technology and Products and
Modec has, and will have during the term of this Agreement, full
right, power, authority and capacity to execute, deliver and
perform this Agreement in accordance with its terms, including
without limitation, the full right and power to grant the rights
and license hereunder and otherwise fulfill Modec's obligations
under this Agreement, without the consent of any governmental
body, any regulatory authority, or any third party. This
Agreement has been duly executed by an authorized officer of
Modec and constitutes a legal, valid and binding agreement of
Modec enforceable against Modec in accordance with its terms.
(e) Modec, at its sole cost and expense, shall comply with
all local, state, federal and international laws and regulations
relating to its performance under this Agreement, including
without limitation, the development, manufacture and sale of
the Products. Without limiting the foregoing, the MDF-500 has
been, and during the term of this Agreement will be, formulated,
manufactured, packaged, labeled, advertised, promoted, and
handled and is otherwise in accordance with all applicable laws
and regulations; and does not constitute an article that may not
properly be introduced into commerce under federal or state law
or the rules and regulations of the Environmental Protection
Agency ("EPA") or any other state or federal regulatory authority.
(f) If this Agreement, the Products or any associated transaction
is required by any applicable law or national, federal, state,
prefecture, local, municipal, foreign, or other government,
governmental, or quasi-governmental authority to be approved,
permitted or registered, Modec will assume all legal obligations
to do so and will make all necessary findings and pay all costs
including fees, penalties and all other out-of-pocket costs
associated with such permitting, registration or approval
process. Without limiting the generality of the foregoing, during
the term of this Agreement and except as otherwise expressly set
forth in this Section, Modec shall, at its sole cost and expense,
be solely responsible for (i) obtaining regulatory approval by
any applicable national, federal, state, prefecture, local,
municipal, foreign, or other government, governmental, or
quasi-governmental authority of any nature which now is, or
later becomes, necessary for SLG to develop, use, produce,
market, offer or sell any Product or Improvement thereto,
(ii) obtaining any toxicology studies which now
are, or later become, necessary for SLG to develop, use, produce, market,
offer or sell any Product or Improvement thereto, as mutually
agreed by the parties, (iii) registering any Product or
Improvement thereto in each state in which it will be
developed, produced, used, marketed, offered or sold by SLG
and any renewals thereof, but excluding registration/renewals
for more than one brand name per Product and/or re-branded
Products, unless otherwise mutually agreed by the parties and
(iv) insuring regulatory compliance of the SLG product label,
including amendments to registered labels. Modec will assist
SLG in getting the SLG label reviewed and approved by the USEPA
within 90 days of the signing of this Agreement. It is expressly
understood and agreed that SLG shall have no obligations under
this Agreement until the applicable permitting, registrations or
approvals referenced in this Section have been obtained and SLG
has received evidence of the same. In the event that any
governmental entity requires material changes to be made to the
terms of this Agreement or the relationship between the parties,
SLG may terminate this Agreement upon written notice without
liability to Modec.
(g) All Product purchased hereunder shall be free from
defects in material and workmanship and will meet SLG's requirements, as
provided in writing to Modec from time to time during the term of
this Agreement, in all respects and will otherwise strictly comply
with all descriptions and representations (including performance
capabilities, accuracy, completeness, characteristics,
specifications, configurations, standards, functions, and
requirements) contained in the Specifications and Standards
or mutually agreed to in writing by the parties from time to time.
(h) The Technology, Modec Trademarks, Products and any
Improvements thereto, and SLG's development, production, use,
marketing, offer and/or sale thereof, does not and shall not
violate or in any way infringe upon the rights of third parties,
including without limitation, any IP Rights of any third party.
3.2 Representation and Warranties of SLG: SLG represents,
warrants and covenants to Modec that all consents, approvals,
authorizations and orders necessary for the execution, delivery
and performance of this Agreement by SLG have been, and will be
during the term of this Agreement, duly and lawfully obtained,
and SLG has, and will have during the term of this Agreement,
full right, power, authority and capacity to execute, deliver
and perform this Agreement. This Agreement has been duly executed
by an authorized officer of SLG and constitutes a legal, valid
and binding agreement of SLG enforceable against SLG in accordance
with its terms.
3.3 Representation and Warranties Regarding Other
Distribution: Modec currently has and SLG recognizes that other
agreements exist with distributors of MDF-500. Modec represents
and warrants that none of these agreements conflict or will
conflict with any of the terms and conditions of this Agreement
with SLG, including, without limitation, the exclusive rights
and license granted to SLG hereunder, and that Modec will use
its best efforts to promptly resolve any conflicts that might
arise. For example, Modec has a distribution agreement with
Servpro to distribute Product to its franchises in the remediation
marketplace. It also has other Distribution Agreements to
distribute Product to the professional remediation marketplace.
The distribution agreements that pre-date Modec's agreement with
SLG will be made available for SLG review, provided such
disclosure does not violate any confidentiality or non-disclosure
agreements of Modec and Modec, after using its best efforts, is
unable to obtain a waiver/consent to such disclosure. Any
provision in the existing agreements that may conflict with this
Agreement and cannot be resolved to both parties' satisfaction
would not cause Modec to be in violation of this Agreement.
SLG acknowledges that Modec's sale of the Product to
professional mold remediators and/or distributors for resale
to professional mold redmediators other than through the
Channels does not conflict with the terms and conditions of
this Agreement.
3.4 Survival of Provisions: The representation and
warranties set forth in this Article 3 shall survive the
termination or expiration of this Agreement.
ARTICLE 4
MANUFACTURE AND SUPPLY OF PRODUCT
4.1 Manufacturing Responsibilities of Modec: The Products
supplied by Modec hereunder shall be manufactured in accordance
with the Specifications and Standards, EPA establishment
manufacturing guidelines and all other applicable rules,
regulations and requirements of any governmental entity that
relate to the manufacture of the Products.
4.2 Filling and Packaging Responsibilities of SLG: The
Products shall be filled and packaged by SLG in accordance with
good manufacturing practices and applicable rules, regulations
and requirements of any governmental entity. Services, if any,
by SLG for the application of the Products on behalf of third
parties shall performed in accordance with any applicable EPA
requirements or restrictions.
4.3 Quality Control and Assurances: Modec shall monitor
the quality and safety of the Product and take all steps reasonably
necessary to ensure that the manufacturer of the Product performs
all required quality control tests and quality assurance reviews.
Modec will comply with the applicable manufacturing standards
established for EPA Registered Manufacturing Establishment. If
either party learns of any quality or safety deficiencies
concerning the manufacturing process, the party will immediately
notify the other party in writing of such deficiency. Modec will
furnish to SLG a certificate of analysis for each batch of
Products shipped to SLG.
4.4 Delivery of Product: Modec shall use best efforts to
provide SLG with all requested quantities of the Product on the
requested delivery dates. The Product shall be shipped to SLG
manufacturing facility in Denver F.O.B. SLG. Modec shall
arrange for shipping and/or transportation of the Product.
Notwithstanding any other provision of this Agreement, in the
event that Modec's ability to supply Product is constrained for
reasons beyond Modec's control which include, but are not limited
to, raw material availability, and the shipment date cannot be
met, Modec will fulfill its obligations to SLG under all requests
previously received by Modec, to the extent reasonably possible.
Thereafter, Modec will provide SLG with at least a pro rata share
of all Product available equal to the share of Modec's total
demand for the allocated Product represented by SLG's demand for
such Product.
4.5 Delay: If Modec expects that delivery of any Products
under a request will be delayed by more than seven (7) business
days beyond the committed shipment date, for whatever cause,
Modec shall promptly notify SLG stating the reason for such
delay, the Product and quantities affected, and the expected
extent of the delay. In the case of unreasonable delays caused
by Modec, Modec will take reasonable steps to expedite shipment
and Modec shall be responsible to SLG for any reasonable and
customary shipping cost increase, provided SLG acts in a
commercially reasonable manner in connection therewith. If such
delivery delays continue for more than seven (7) business days
beyond the corresponding shipment date for such request, SLG may,
at any time thereafter and prior to Modec's actual delivery of
such delayed Product, terminate the request as to the undelivered
portion without liability for any charges.
4.6 Inspection and Acceptance: SLG, and or its authorized
agents, may inspect and test all Products utilizing standard
industry testing practices and the agreed-upon quality
specifications for each Product. SLG may refuse to accept
Product that does not conform to the Specifications and Standards
for such Product. Such Product may be returned, at Modec's sole
cost and expense, to Modec via standard and customary freight
practices. Modec shall replace all defective rejected Product,
freight pre-paid, with new conforming Product within fifteen
(15) days after receipt of the rejected Product at Modec's
facility. If replacement Product are not delivered within
fifteen (15) days after its notice of rejection, SLG may cancel
any portion of the request for such rejected Product without
liability. SLG shall have no obligation to pay for such rejected
Product until replaced and accepted by SLG.
ARTICLE 5
PURCHASE PRICE
5.1 Purchase Price: Modec agrees to sell MDF-500 in bulk
packaging (250-300 gallon totes) to SLG at the prices set forth
in Exhibit A. This pricing structure will remain in effect for
the term of the Agreement, unless Modec elects to lower such
pricing to be more competitive and favorable to SLG. There will
be a price review, at the end of the Initial Term, for any
increase in raw material costs due to chemical supplier
increases, provided that any changes to the Purchase Price
shall be subject to mutual written agreement executed in
writing by parties. It is also agreed that Modec will review
the pricing schedule for additional volume discounts when SLG
reaches 300,000 gallons in annual purchases.
5.2 Terms of Sale: Modec shall invoice SLG for the
Purchase Price for each shipment of Product. All invoices shall
state the Purchase Price for all Product in a given shipment
plus any freight, taxes or other applicable costs initially paid
by Modec, but to be borne by SLG. Undisputed payments shall be
due and payable within forty-five (45) days following receipt
of invoice. Payment by SLG hereunder without asserting a dispute
shall not be deemed a waiver of any claim or right.
Notwithstanding anything herein to the contrary, any terms
appearing in any invoice or in any other statement submitted to
SLG by Modec that differ from or conflict with the terms of
this Agreement shall be void. SLG will provide Modec with an
authorized credit application.
5.3 Taxes. All prices described herein are exclusive
of federal, state and local excise, sales, use and similar taxes.
Modec shall separately detail in each invoice provided under this
Agreement taxes for goods, and shall separately state the
different types of taxes by the type of tax, that SLG shall pay
on Products sold by Modec hereunder to SLG (e.g., sales, use,
gross receipts, surcharges and other taxes or tax-like fees,
other than taxes impose on Modec's net income). Modec will
invoice such tax to SLG unless SLG provides Modec a properly
completed exemption certificate or other evidence of exemption,
reasonably satisfactory to Modec. Modec will pay all taxes and
contributions owing in either a personal or professional capacity
on, or arising out of, any of the payments made to Modec under
this Agreement.
5.4 Packaging and Shared Costs. The pricing that is set
forth in Exhibit A reflects discounts to SLG as a result of no
consumer packaging costs and for Modec's share of product
development, marketing and advertising costs.
5.5 Most Favored Nation. If Modec, or any Affiliate of
Modec, enters into an arrangement with any third party to use,
market, offer or sell the Product and such arrangement is
structured more favorably to such third party than the structure
provided to SLG under this Agreement, including the price for
the Product, other rights or obligations of such third party or
otherwise, Modec promptly shall notify SLG of such arrangement
and offer SLG the right to amend this Agreement to provide SLG
with an arrangement at least as favorable as the one provided to
such third party.
ARTICLE 6
PRODUCT EXCLUSIVITY
6.1 Product Exclusivity: During the Initial Term of this
Agreement, SLG shall have exclusive rights to the Product in the
Territories and Channels listed above. Modec will provide to SLG
information and access to all Improvements during the term of the
Agreement. SLG will continue to maintain its exclusivity after
the Initial Term, as long as it purchases or has issued
unfilled purchase orders for immediate delivery, for a minimum
of 20,000 gallons of Product on an annual basis. The annual
period is accounted for on December 31 of each year for the
preceding 12 months. However, notwithstanding the foregoing,
the first measurement period, deemed to be an annual period,
begins on January 1, 2006 and ends on December 31, 2007.
Alternatively, if the minimum purchase is not met SLG may, in
its sole discretion, issue a purchase order by December 31 to
reach the minimum and retain SLG's exclusivity. The delivery
and payment would be due on January 31st, or as otherwise
mutually agreed to by the parties. For example if SLG did not
purchase 20,000 gallons of Product for the period ended
December 31, 2007, SLG may issue a purchase order to reach the
minimum with delivery and payment due by January 31, 2008 to
maintain its exclusivity for the year ended December 31, 2008.
6.2 Diligence: During the term of this Agreement, SLG
shall use commercially reasonable efforts to market and sell the
Product in one or more of the Channels in the Territory. If SLG
is not complying with the obligations stated in the first
sentence of this Section 6.2, as the remedy therefor, the
exclusivity regarding the Product as stated in this Agreement
will be forfeited by SLG. If SLG has decided to abandon its
efforts with regard to MDF 500 prior to the initial measurement
period, the exclusivity will be forfeited.
6.3 Product Exclusivity Termination: SLG's exclusive
right to the Product for consumer product purposes will
terminate immediately if SLG purchases or enters into any
binding agreement for the purchase of product from any other
licensee of Sandia for their decon formulations.
6.4 New Product Right of First Refusal. Modec shall
notify SLG ("New Product Notice") prior to Modec or its
Affiliate's selling or marketing anywhere within the Territory
through the Channels, directly or through any distributor or
Affiliate, any New Products. The New Product Notice shall fully
describe the New Product and shall be supplemented with such
promotional and technical literature as Modec may possess.
Upon notice to Modec within 90 days after receipt of the New
Product Notice, SLG shall have, and Modec hereby grants to
SLG, the exclusive right to have the New Product be sold to
SLG, subject to all of the terms and conditions of this Agreement,
in order to use, develop, produce, market, offer and sell, and
have developed, produced, marketed, offered and sold, the New
Product in the Territory through the Channels, with the New
Product considered a "Product, " and the parties shall negotiate
in good faith, and use reasonable efforts to agree upon, the
pricing schedule for the New Product. The term "New Product"
as used in this section means Improvements developed by Modec or
any Affiliate of Modec which is similar to, or can be used in
conjunction with, the Products for use in the mitigation,
remediation and decontamination of mold and mycotoxin contamination.
ARTICLE 7
TRADEMARKS AND NAMING RIGHTS
7.1 Trademarks: Subject to the terms and conditions of
this Agreement and in connection with the rights granted to SLG
herein, Modec hereby grants SLG a royalty-free, exclusive right
and license, with right to sublicense (upon Modec's written
consent, which consent shall not be unreasonably withheld,
conditioned or delayed), to use Modec Trademarks during the term
of this Agreement in the Territory in connection with the
development, marketing, promotion, distribution, offer and sale
of the Products in the Channels. The parties acknowledge and
agree that any associated goodwill specifically attributable to
SLG's use of the Modec Trademarks shall inure to the benefit of
Modec and that SLG shall not acquire any rights in or to the
Modec Trademarks, except for the rights expressly granted
herein, during the term of this Agreement. During the term of
this Agreement, SLG shall undertake commercially reasonable
steps as Modec may reasonably request to assist Modec in
monitoring the quality of Products in connection with use of
the Modec Trademarks pursuant to this Agreement. Under no
circumstances is SLG allowed to use the name and logos of Sandia
National Laboratories without express written permission from
Sandia Corp. and/or the US Department of Energy (collectively,
"Sandia/USDOE"), which permission SLG shall request through
Modec and/or Modec's designated consultant (each of whom shall
seek such approval). Modec represents and warrants that it has
obtained written permission from Sandia/USDOE for SLG to use,
reproduce, and publicly display the name and logo of Sandia
National Laboratories (the "Sandia Marks") during the term of
this Agreement in the Territory in connection with the
development, marketing, promotion, distribution, offer and sale
of the Products in the Channels, in substantially the same the
form provided to and approved by Modec as of the Effective Date.
No compensation shall be due to Sandia and/or Modec with respect
to SLG's use of the Sandia Marks hereunder.
7.2 Right to Rename Product; Labeling Approval: Modec
agrees that SLG is not required to use the Modec Trademarks and
shall have the right to market and sell the Products and services
related to application of the Products under other names,
trademarks and service marks developed and owned by or licensed
to SLG, including, without limitation, XXXXX'X LIQUID GOLD MOLD
CONTROL 500 (the "SLG Trademarks"). Modec agrees that (a) SLG
retains all of right, title, and interest in and to the SLG
Trademarks, (b) use of the SLG Trademarks and any associated
goodwill shall inure to the exclusive benefit of SLG, and
(c) Modec shall not acquire any rights in or to the SLG
Trademarks. SLG shall bear its own costs associated with any
mandatory governmental entity approval of any Product label
bearing the SLG Trademarks, provided that (a) SLG shall seek
such approval through Modec and/or Modec's designated consultant
(each of whom shall act on SLG's behalf in seeking such approval),
and (b) Modec shall bear the costs and expenses of Modec's
designated consultant in connection with the seeking of such
approval on SLG's behalf.
7.3 Pricing: SLG shall have sole discretion to set the
price for its sale of the Products and services by SLG related
to the application of the Products in the Territory.
ARTICLE 8
MARKETING OF CONSUMER PRODUCTS
8.1 SLG's Obligation Regarding Marketing: SLG shall use
commercially reasonable efforts to develop a consumer market for
the Product and its application in mitigation, remediation and
decontamination of consumer mold and mycotoxin contamination
throughout the Territory. The sole remedy for not using such
commercially reasonable efforts is the loss of exclusivity as
stated in Section 6.2.
ARTICLE 9
DAMAGES, INDEMNIFICATION; INSURANCE; AND LIMITATION OF LIABILITY
9.1 Indemnification: In the event that the sale or use
of MDF-500 or any Products supplied by Modec or SLG pursuant to
this Agreement results in a third-party claim, the parties agree
as follows:
(a) to the extent that the claimed damages incurred
relate to or arise out of or are connected in any way to the
manufacturing, testing, labeling, storage or handling by Modec or the
determination of chemical properties of MDF-500 by Modec, any
advertising and marketing claims provided by Modec, a breach by
Modec of any representation, warranty or covenant under this
Agreement, or any act or omission of Modec, Modec shall be
responsible therefor and shall indemnify and hold harmless SLG,
and their respective owners, Affiliates, officers, directors,
employees and agents ("Related Parties"), from and against all
Damages of SLG and its Related Parties arising from the claim
or potential claims; and
(b) to the extent that the claimed damages incurred
relate to or arise out of or are connected in any way to filling,
packaging, labeling, storage or handling by SLG, any advertising and
marketing claims provided by SLG, a breach by SLG of any
representation, warranty or covenant under this Agreement, or
any act or omission of SLG, SLG shall be responsible therefor
and shall indemnify and hold harmless Modec, and its Related
Parties, from and against all Damages of Modec and its Related
Parties arising from the claim or potential claims;
(c) Upon the assertion of any third-party claim against
Modec or SLG that may give rise to right of indemnification under this
Agreement, the party claiming a right to indemnification (the
"Indemnified Party") shall give prompt notice to the party alleged
to have the duty to indemnify (the "Indemnifying Party") of the
existence of such claim (provided that the failure to give such
notice in timely fashion shall not release the Indemnifying Party
of its obligations of indemnification hereunder except to the
extent that the Indemnifying Party has been materially prejudiced
thereby) and shall give the Indemnifying Party reasonable
opportunity to control, defend and/or settle such claim at its own
expense and with counsel of its own selection; provided, however,
that the Indemnified Party shall, at all times, have the right
to participate fully in such defense at its own expense with
separate counsel, and provided that both parties to the extent
that they are not contractually or legally excluded therefrom, or
otherwise materially prejudiced in a legal position by so doing,
shall cooperate with each other and with their respective insurers
in the defense of such third party claim. The Indemnifying Party
shall consult with the Indemnified Party with respect to
settlement of any claim. The Indemnifying Party shall have the
right to settle any claim without the consent of the Indemnified
Party, provided that the Indemnified Party is unconditionally
released from such claim and it is not otherwise prejudiced by
the terms of settlement. In the event the Indemnifying Party
elects to defend such claim, the Indemnified Party may not settle
such claim without the prior written consent of the Indemnifying
Party. If the Indemnifying Party shall, within a reasonable time
after such notice has been given, fail to defend, compromise or
settle such claim (or thereafter fails to defend diligently such
claim), then the Indemnified Party shall have the right to
defend, compromise or settle such claim without prejudice to
its rights of indemnification hereunder.
9.2 Insurance: Both parties shall during the term of
this Agreement and for a period of not less than twenty-four
(24) months following the expiration or termination of this
Agreement, maintain a comprehensive public liability and products
liability policy with an insurance carrier, with limits which
shall not be less than One Million and No/100 Dollars
($1,000,000.00) per each occurrence and Two Million and No/100
Dollars ($2,000,000) aggregate limit. Such insurance policies
of each party shall name the other party as an additional
insured thereunder. Such insurance policy shall provide that
it cannot be canceled without 30 days prior written notice to
the other party. It is also agreed that the "other insurance"
clause, if any, will be deleted from such policy, that the
insurance under such policy shall be primary and that other
insurance in force is neither primary nor contributing. Each
party shall provide to the other party, within 30 days of the
effective date of this Agreement, a certificate showing proof
that such policy of insurance is in effect.
9.3 Limitation of Liability: EXCEPT AS OTHERWISE
EXPRESSLY PROVIDED IN THIS SECTION 9.3, IN NO CIRCUMSTANCE AND
UNDER NO LEGAL THEORY (TORT, CONTRACT OR OTHERWISE), SHALL
EITHER PARTY OR ITS RELATED PARTIES BE LIABLE TO THE OTHER
PARTY OR ITS RELATED PARTIES FOR ANY SPECIAL, PUNITIVE,
INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES SUFFERED BY THE
OTHER PARTY ARISING IN CONNECTION WITH THIS AGREEMENT. THE
FOREGOING LIMITATIONS OF LIABILITY SHALL NOT APPLY TO
(A) A PARTY'S INDEMNIFICATION OBLIGATIONS HEREUNDER;
(B) A BREACH UNDER SECTION 11 (CONFIDENTIALITY); OR
(C) DAMAGES ARISING FROM A PARTY'S WILLFUL MISCONDUCT.
9.4 Survival: The provisions of this Article 9 shall
survive termination or expiration of this Agreement.
ARTICLE 10
TERM AND TERMINATION
10.1 Term: The initial term of this Agreement shall
commence on the Effective Date of this Agreement and shall
continue through December 31, 2007 ("Initial Term"), unless
earlier terminated in accordance with Section 3.1(f) (last
sentence) or Section 10.2 of this Agreement. Upon the expiration
of the Initial Term, this Agreement shall automatically renew
for successive one-year terms (each a "Renewal Term" and, together
with the Initial Term, the "term"), unless terminated in
accordance with the provisions of this Agreement.
10.2 Material Breach: Modec or SLG may, by notice in
writing to the other, terminate this Agreement if the other
party shall have breached any of its material duties or
obligations under this Agreement and such default continues
without being remedied for a period of thirty (30) days
following receipt of notice of such default (or, if such default
is capable of being remedied but is not reasonably capable of
being remedied within such thirty (30) day period, such longer
period of time as is reasonable in the circumstances, not
exceeding sixty (60) days in the aggregate, provided that the
defaulting party has, within such period, commenced and thereafter
actively and diligently pursues the remedying of such default).
In the event that a party has been given notice pursuant to this
Section 10.2 and such party disputes the alleged breach, the
dispute shall be submitted to dispute resolution pursuant to
Article 12.1 hereof and this Agreement shall continue in full
force until such time as the dispute resolution process has
been completed.
10.3 Effect of Termination: Notwithstanding anything in
this Agreement to the contrary, in the event of termination of
this Agreement pursuant to Section 3.1(f) (last sentence) or
Section 10.2 by either party, SLG shall have the right to
complete all contracts for the sale or other disposition of
Products and any related services under which SLG is obligated
on the date of termination and to sell all inventory then in
its possession or control. Termination of this Agreement
pursuant hereto shall be without prejudice to any other right
or remedy the party terminating this Agreement may have against
the defaulting party arising out of the breach in question,
including the right to obtain compensation for its damages.
10.4 Survival: Any cause of action for breach of this
Agreement shall survive the termination or expiration of this
Agreement. The termination or expiration of this Agreement shall
not affect any right or obligation of Modec or SLG existing prior
to the effective date of termination or expiration and which is
by its express terms hereunder to survive the expiration or
termination of this Agreement. Further, any other provisions
which by their nature are intended to survive any such termination,
shall survive the expiration or termination of this Agreement and
continue in force.
ARTICLE 11
CONFIDENTIALITY
11.1 Confidential Nature of Agreement: Each of the parties
hereto agrees that, without the prior written consent of the
other, or except as may be required by law or court order, the
existence and terms of this Agreement shall remain confidential
and shall not be disclosed other than to employees and
professional advisers of such party who reasonably require
knowledge of the existence or terms of this Agreement and who
are bound to such party by a like obligation of confidentiality.
Such employees and advisors will be advised of the nature and
existence of the confidentiality undertakings of this Agreement
and of the applicability of such undertakings to them and will
agree to be bound hereby. Notwithstanding any other provisions
of this Agreement, Modec acknowledges and agrees that SLG shall
be permitted to make any disclosures regarding this Agreement and
related matters in any filings as SLG believes are required under
United States securities laws, to make such disclosures in any
such filing or form that SLG believes is required in connection
therewith, and to file this Agreement (without exhibits unless
requested by the applicable regulatory authority) if and to the
extent SLG believes that this Agreement is required to be filed
under requirements of the United States securities laws and
regulations thereunder.
11.2 Duty of Confidentiality: Modec and SLG agree to hold
in trust and confidence for the benefit of the other party all
Confidential Information of such other party and each further
agrees to safeguard the Confidential Information of the other to
the same extent that it does with its own Confidential Information
and to limit and control copies made of such Confidential
Information. Neither party will, without the express written
consent of the other, directly or indirectly, use any Confidential
Information of the other party for any purpose other than to
implement the provisions of this Agreement. Neither party will
disclose Confidential Information, other than its employees or
other representatives who have a need to know to fulfill the
provisions and intent of this Agreement (where such provisions
and intent cannot properly be fulfilled without such disclosure)
and who have been informed of the confidential nature of the
information and have agreed to be bound by the terms hereof.
Modec and SLG shall use reasonable efforts to prevent unauthorized
use or disclosure of the Confidential Information of the other
and shall use protective measures no less stringent than those
used by it in its own business to protect its own Confidential
Information, including segregating such information at all times
from the confidential material of others so as to prevent any
commingling.
11.3 Compulsory Disclosures: In the event that either
Modec or SLG shall be legally compelled or required by a court
of competent jurisdiction to disclose all or any part of the
Confidential Information of the other party, the party so
compelled or required shall provide prompt notice to the other
so that such other party may determine whether or not to seek a
protective order or any other appropriate remedy. If a
protective order or other appropriate remedy is not obtained
before such disclosure is required, the party required to make
disclosure will disclose only those portions of the Confidential
Information in question which it is advised by written opinion of
counsel (which opinion shall be addressed to such party and to
the other party), it is legally required to disclose and will
exercise its commercially reasonable efforts to obtain reliable
assurances that confidential treatment will be accorded such
Confidential Information.
11.4 Return of Confidential Information: Upon termination
or expiration of this Agreement, each of Modec and SLG shall
immediately return to the other all material containing,
reflecting or referring to any Confidential Information of the
other party, (including all notes, summaries, analyses or other
documents prepared or derived therefrom) and all copies thereof
in any form whatsoever under the power or control of such party,
except that one copy may be retained with such party's legal
counsel for archival purposes, and such party shall delete such
Confidential Information from all retrieval systems and data
bases or destroy same as directed by the other party and furnish
to the other party, if requested, a certificate of a senior
officer of such party certifying such return, deletion and/or
destruction.
11.5 Equitable Remedy: Each of the parties acknowledges
and agrees that the other would be irreparably harmed if any
Confidential Information of the disclosing party were to be
disclosed to third parties, or if any use were to be made of
such Confidential Information other than that permitted under
this Agreement, and further agrees that the disclosing party
shall have the right to seek injunctive relief upon any
violation or threatened violation of the terms of this
Article 11, in addition to all other rights and remedies
available at law or in equity, without having to post a bond
or other security.
11.6 Survival: The obligations of confidentiality and
use restrictions contained in this Article 11 shall survive the
expiration or termination of this Agreement.
ARTICLE 12
FORUM
12.1 Choice of Forum: The parties agree that, to the extent
any disputes arise that cannot be resolved directly between the
parties, each party hereto hereby submits to the exclusive
jurisdiction of the United States District Court in the State of
Colorado for the purposes of all legal proceedings arising out of
or relating to this Agreement or the transactions contemplated
hereby. Each party hereto irrevocably waives, to the fullest
extent permitted by applicable law, any objection which it may
now or hereafter have to the laying of the venue of any such
proceeding brought in such a court and any claim that any such
proceeding brought in such a court has been brought in an
inconvenient forum, such waiver being coupled with an interest.
ARTICLE 13
GENERAL CONTRACT TERMS AND CONDITIONS
13.1 Headings: The headings of all articles and sections
hereof are inserted for convenience or reference only, are not
intended to be full or accurate descriptions of the contents
hereof, and shall not be considered part of this Agreement or
affect the construction or interpretation of this Agreement.
13.2 No Strict Construction: The language used in this
Agreement shall be deemed to be the language chosen by the parties
hereto to express their mutual intent and no rule of strict
construction against any party shall apply to any term or
condition of this Agreement. This Agreement or any section thereof
shall not be construed against any party due to the fact that said
Agreement or any section thereof was drafted by said party.
13.3 Recitals; Schedules; Annexes: The recitals,
schedules, exhibits, and annexes to this Agreement are
incorporated herein and, by this reference, are made a part
hereof as if fully set forth at length herein.
13.4 Authorization or Consent: Except as otherwise
expressly set forth herein, whenever the authorization or
consent of a party is required hereunder, such authorization or
consent may be granted or withheld by such party in its sole
and unilateral discretion for any reason or for no reason and,
if granted, may be granted upon such additional terms or
conditions as the granting party may determine in its sole
discretion.
13.5 Construction: Unless the context clearly requires
otherwise: (a) the plural and singular numbers are each deemed
to include the other; (b) the masculine, feminine, and neuter
genders are each deemed to include the others; (c) "shall,"
"will," and "agrees" are mandatory, and "may" is permissive;
(d) "or" is not exclusive; and (e) "includes" and "including"
are not limiting.
13.6 Notice: All notices, demands or other communications
to be given or delivered under or by reason of the provisions of
this Agreement shall be in writing and shall be deemed to have
been duly given if: (a) delivered personally to the recipient;
(b) sent to the recipient by reputable express courier service
(charges prepaid); (c) mailed to the recipient by certified or
registered mail, return receipt requested and postage prepaid;
or (d) transmitted by facsimile to the recipient with a
confirmation copy to follow the next day to be delivered by
express courier. Such notices, demands and other communications
shall be sent to the addresses indicated below:
To Modec at: With a Copy to:
Modec, Inc. Modec, Inc.
0000 Xxxxxxx Xxxxxx 0000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000 Xxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxxx, Attn: Xxxxx Xxxxxxx,
President & CEO VP of Finance
Fax No: (000) 000-0000 Fax No: (000) 000-0000
Tel No: (000) 000-0000 Tel No: (000) 000-0000
To Scotts Liquid Gold at: With a Copy to:
Scotts Liquid Gold, Inc. Holland & Xxxx LLP
0000 Xxxxxx Xxxxxx 000 00xx Xxxxxx, Xxx. 0000
Xxxxxx, Xxxxxxxx 00000 Xxxxxx, XX 00000-0000
Attn: Xxxx Xxxxxxxxx, Attn: Xxxx Xxxx, Esq.
President & CEO Telephone: (000) 000-0000
Fax No. (000) 000-0000 Facsimile: (000) 000-0000
Tel No. (000) 000-0000
or to such other address or to the attention of such other person
as the recipient party has specified by prior written notice to
the sending party. Date of service of such notice shall be:
(i) the date such notice is personally delivered; (ii) three (3)
days after the date of mailing if sent by certified or registered
mail; (iii) the next business day after the date of delivery to
the overnight courier if sent by overnight courier; or (iv) the
date of transmittal by facsimile, if transmitted on a business
day, or the next business day following transmittal, if
transmitted other than on a business day.
13.7 Force Majeure: Neither party shall be considered to
be in default in respect of any obligation hereunder if failure
of performance shall be due to Force Majeure (as hereinafter
defined). If either party is affected by a Force Majeure event,
such party shall, within twenty (20) days of its occurrence,
give notice to the other party stating the nature of the event,
its anticipated duration and any action being taken to
reasonably avoid or minimize its effect. The suspension of
performance shall be of no greater scope and no longer duration
than is required by such Force Majeure and the non-performing
party shall use commercially reasonable efforts to remedy its
inability to perform. Force Majeure shall mean an unforeseeable
or unavoidable cause beyond the reasonable control and without
the fault or negligence of a party including, but not limited
to, explosion, flood, war (whether declared or otherwise),
terrorist activity, accident, labor strike or other labor
disturbance, inability to obtain materials or services,
sabotage, acts of God, newly enacted legislation or regulations,
newly issued orders or decrees of any court and any binding act
or order of any governmental agency. Notwithstanding anything
in this Section 13.7 the party to whom performance is owed but
to whom it is not rendered because of an event of Force Majeure
as contemplated in this section shall, after the passage of one
hundred and twenty (120) days, have the option to terminate this
Agreement on thirty (30) days prior written notice to the other
party hereto.
13.8 Governing Law: This Agreement shall be deemed to have
been made under, and shall be governed by, the laws of the State
of Colorado, without giving effect to choice of law principles.
13.9 Entire Agreement: This Agreement contains the entire
agreement and understanding of the parties with respect to its
subject matter and supersedes all negotiations, prior discussions
and any agreements relating to its subject matter. This Agreement
may not be amended or modified except by a written instrument
signed by both parties.
13.10 Waiver: Any waiver of, or consent to depart from,
the requirements of any provision of this Agreement shall be
effective only if it is in writing and signed by the party giving
it, and only in the specific instance and for the specific
purpose for which it has been given. No failure on the part of
any party to exercise, and no delay in exercising, any right
under this Agreement shall operate as a waiver of such right.
No single or partial exercise of any such right shall preclude
any other or further exercise of such right or the exercise of
any other right.
13.11 Counterparts: This Agreement may be executed in
identical duplicate copies exchanged by facsimile transmission.
The parties agree to execute two (2) identical original copies of
the Agreement after exchanging signed facsimile versions. Each
identical counterpart shall be deemed an original, but all of
which together shall constitute one and the same instrument.
13.12 Severability of Provisions: If, for any reason
whatsoever, any term, covenant or provision of this Agreement
or the application thereof to any party or circumstance or in
any jurisdiction is to any extent held or rendered invalid,
unenforceable or illegal, then such term, covenant or condition:
(a) is deemed to be independent of the remainder of this
Agreement and to be severable and divisible there from and its
validity, unenforceability or illegality shall not affect,
impair or invalidate the remaining provisions hereof; and
(b) continue to be applicable and enforceable to the fullest
extent permitted by law in every other jurisdiction and against
any party and circumstances other than those as to which or in
respect of which it has been held or rendered unenforceable or
illegal. Should any provision of this Agreement be so held to
be unenforceable, such provision, if permitted by law, shall be
considered to have been superseded by a legally permissible
and enforceable clause which corresponds most closely to the
intent of the parties as evidenced by the provision held to be
unenforceable.
13.13 Further Assurances: The parties agree
(a) to furnish upon request to each other such further information,
(b) to execute and deliver to each other such other documents,
and (c) to do such other acts and things, all as the other party
may reasonably request for the purpose of carrying out the
intent of this Agreement and the documents referred to in this
Agreement.
13.14 Assignment: Except as otherwise provided
below, neither Modec nor SLG may assign this Agreement or any
of its rights or obligations hereunder to a third party without
the prior written consent of the other party. Either party
hereto may assign this Agreement to a Person acquiring all or
substantially all of the equity securities or assets of that
party or to an Affiliate of that party. Notwithstanding
anything herein to the contrary, in no event shall Modec assign
this Agreement to a competitor of SLG. Subject to the
foregoing, this Agreement shall be binding upon and inure to
the benefit of the parties and their respective successors
and permitted assigns.
13.15 Joint and Several Liability of SLG: Each of
Xxxxx'x Liquid Gold-Inc. and SLG Chemicals, Inc. shall be
jointly and severally liable for any obligations under this
Agreement. Any action, decision or determination by SLG under
this Agreement may be taken by either Xxxxx'x Liquid Gold-Inc.
or SLG Chemicals, Inc. or both of them together.
IN WITNESS WHEREOF, each of the parties hereto has caused
this Agreement to be executed by its duly authorized officer as
of the date first above written.
Modec, Inc. Scotts Liquid Gold-Inc.
By: /s/ Xxxxx X. Xxxxxxxxx By: /s/ Xxxx Xxxxxxxxx
Xxxxx X. Xxxxxxxxx Xxxx Xxxxxxxxx
President and CEO President and CEO
SLG Chemicals, Inc.
By: /s/ Xxxx X. Xxxxxxxxx
Xxxx X. Xxxxxxxxx
President
