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STRATEGIC ALLIANCE AND PROJECT VENTURE AGREEMENT
This STRATEGIC ALLIANCE AND PROJECT VENTURE AGREEMENT (the "Agreement") is by
and between MR3 Systems, Inc., a Delaware corporation with its corporate address
at 000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxxxxxx, Xxxxxxxxxx, 00000, (hereinafter
referred to as "MR3"), and Purolite Company, a Delaware corporation with a
corporate address at 000 Xxxxxxxx Xxxx, Xxxx Xxxxxx, XX 00000, (hereinafter
referred to as "PUROLITE").
RECITALS
WHEREAS, MR3, is a publicly traded company, whose proprietary technologies and
intellectual property associated with the extraction, separation, recovery, and
purification of precious and base metals are applied in commercial operations in
vertical markets involving, but not limited to, ore deposits, ore tailings,
hazardous waste, oil and geothermal fluids, groundwater and soil contaminated
with metals; and
WHEREAS, PUROLITE is a leading global manufacturer of resins for separation,
ion-exchange, and industrial remediation applications; and
WHEREAS, MR3 provides unique technologies for the extraction and separation of
metals applied to remediation and mining; and
WHEREAS, PUROLITE and MR3 are positioned to develop next generation unique
solutions for remediation and mining markets, tailored for the selective
separation, capture, and recovery of metals; and
WHEREAS, PUROLITE and MR3 are positioned to market globally the application of
newly developed resins and turn-key systems for selective metal extraction; and
WHEREAS, MR3 and PUROLITE, (collectively the "Parties") herein desire to set
forth in writing the terms and conditions of their understandings and
agreements.
NOW THEREFORE, in consideration of the foregoing, of the mutual promises
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereby agree as
follows:
1. DEFINITIONS.
Capitalized terms used in this Agreement, including those in Recitals, are
defined throughout the Agreement. Terms not defined therein shall be given their
plain English meaning; provided, however, that those terms, acronyms and phrases
known in the international trade and business development industry, which are
not defined, shall be interpreted in accordance with their generally accepted
industry meaning.
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2. INTENT AND PURPOSE OF STRATEGIC ALLIANCE AND PROJECT VENTURE
2.1. INTENT AND PURPOSE. This Agreement signifies the formation of an
exclusive venture between MR3 and PUROLITE to develop new and unique
products and processing solutions for the extraction and separation
of selenium and perchlorate. The research, development, bench-scale
testing, pilot-scale validation, and commercialization of the unique
products and processing solutions are to be performed jointly, with
ownership of the resulting intellectual property to be shared
equally by PUROLITE and MR3. The commercialization strategy is two
fold: (i) to market, sell, and distribute large quantities of the
unique products (resins) developed under the venture, and (ii) to
apply the unique products through the turn-key systems in projects
already established and penetrated. Pursuant to the foregoing, it is
the current intent of the Parties to undertake projects for the
development and integration of the first products as specified in
Section 3 below, as well as any subsequent products agreed to by the
Parties (the "Projects") and added as an addendum to this agreement.
2.2. PROJECT PLANS. It is further understood and agreed that each Project
undertaken pursuant to this Agreement will be subject to the
execution and delivery by the Parties of a separate project plan for
each Project undertaken (each, a "Project Plan"). When executed,
each Project Plan will be attached to and incorporated by reference
into this Agreement, and the terms and conditions of the Project
Plan shall control to the extent consistent with the terms contained
herein. The Parties agree that each Project Plan will set forth,
among other things as the Parties shall deem appropriate, the
following:
2.2.1. A detailed description of the project;
2.2.2. Any design documents or specifications (unless the
project contemplates creation or development of the
same);
2.2.3. Project deliverables, if any, that either or both
Parties will be responsible for creating and developing;
2.2.4. Tasks, responsibilities, covenants and agreements of
each Party relating to the project;
2.2.5. Deadlines, interim milestones, and other matters
relating to timing and delivery or performance under the
project;
2.2.6. Intellectual property rights or licenses to the extent
different from the terms of this Agreement;
2.2.7. Termination rights of the Parties relating to the
project;
2.2.8. Obligations of the Parties to market and implement the
project; and
2.2.9. Any other terms or conditions that vary from the terms
and conditions set forth in this Agreement.
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3. THE PRODUCTS AND GRANT OF EXCLUSIVE OWNERSHIP RIGHTS
Each Party hereby grants to the other Party joint, world-wide ownership rights
in and to the Products set forth in this Section 3. The Parties agree that they
have the joint exclusive ownership rights to the products developed hereunder.
3.1. THE PRODUCTS. The Parties agree to initially develop two (2) new
products described in Sections 3.1.1 and 3.1.2 (the "Products" or
each a "Product" hereunder) as follows:
3.1.1. SELENIUM RESIN. A new product and processing system to
be applied for the removal of selenium to be based on
PUROLITE's current arsenic removal resin. The modified
resin and/or the processing system will have reductive
functionality for transformation of selenates into
selenites with the resulting increase in total selenium
removal capacity.
3.1.2. PERCHLORATE RESIN. A new product and processing system
described as a boron based resin to be applied to reduce
the perchlorate in the influent to chloride, which in
turn can be removed with conventional ion-exchange
resins (such as PUROLITE's A100 or A500).
3.2. DEVELOPMENT AND COMMERCIALIZATION PLAN. The Parties agree to a
development and commercialization plan with respect to each Product,
as follows:
3.2.1. MR3 will implement bench-scale, prototype and pilot
studies and develop commercial Products and processing
systems in collaboration with PUROLITE.
3.2.2. The testing results will be provided to PUROLITE along
with MR3's specifications and recommendations regarding
resin improvements and modification, and new Product
synthesis. PUROLITE will synthesize the Products based
on MR3's specifications and data and will incorporate
all possible improvements based on the Parties' joint
development recommendations.
3.2.3. Each developed Product will be marketed under a
trademark to be jointly owned by PUROLITE and MR3.
3.2.4. PUROLITE will provide reasonable samples of its existing
resins or its modifications to MR3 free of charge on an
"As Needed" basis.
3.2.5. PUROLITE and MR3 will jointly patent the new and
modified Products based on MR3's tests and piloting
work, and the Parties will have joint ownership of all
intellectual property in the Products.
3.2.6. The Product resins will be marketed under PUROLITE's
marketing program and applied by MR3 in its metals
removal markets. The pricing of all Products will be set
by PUROLITE, whether sold directly by PUROLITE, by MR3,
or by third parties. The pricing of all MR3 turn-key
systems shall be set by MR3.
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3.2.7. PUROLITE agrees to pay MR3 a percentage of its gross
receipts from the sale of any and all Products to a
third party, payable monthly (within 30 days after
PUROLITE has been paid by a third party). The percentage
is determined by the selling price and margin as agreed
by the Parties after determining the standard cost and
selling price.
3.2.8. MR3 will be granted the right to purchase any of the
Products from PUROLITE at an agreed upon price level.
All costs will have to be determined in consideration of
the price.
3.2.9. PUROLITE agrees to refer to MR3 all contacts, requests,
leads, and the like, received by PUROLITE for the
purchase or application of turn-key extraction or
remediation systems which appear to benefit from the use
of the Products.
3.2.10. Exclusive Manufacturing Rights: MR3 agrees that PUROLITE
will have exclusive manufacturing rights to the Products
for the lifetime of the Products. If PUROLITE is unable
to supply the Products, PUROLITE will advise MR3 and MR3
will have the right to seek an additional supplier. If
the contract is terminated for reasons specified in
section 7.4, this clause is null and void.
4. ADDITIONAL AGREEMENTS OF THE PARTIES
4.1. PUBLICITY; PRESS RELEASES. The Parties may by mutual consent agree
to issue a joint press release describing the collaboration of the
Parties. In addition, each of PUROLITE and MR3 may, at such Party's
discretion: (a) identify the other as a strategic partner; (b)
hyperlink from an appropriate area within its website to the other's
home page; and (c) display the other Party's logo on the its web
site (in accordance with such Party's guidelines for the use of such
xxxx). The Parties shall also consult regularly during the term of
the Agreement and issue, as and when appropriate, such further press
releases and/or other publicity materials as may be appropriate. The
contents of the press releases issued by the parties shall be
subject to the approval of each Party, which approval shall not be
unreasonably withheld or delayed.
4.2. USE OF NAME IN PROMOTIONAL MATERIALS. Each Party shall, with prior
approval of the other Party (which will not be unreasonably withheld
or delayed), be permitted to identify the other Party as a strategic
partner, to use the other Party's name in connection with proposals
to prospective customers, and to refer to the other Party in print
or electronic form for marketing or reference purposes, provided
however that such proposals and marketing and reference materials
are for projects that both Parties have agreed to pursue. The
content of the Promotional Materials shall be approved by each Party
in advance of the printing.
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4.3. MARKETING, DISTRIBUTION AND SUPPORT EFFORTS; PROMOTIONAL ACTIVITIES.
To the extent agreed upon by the Parties pursuant to the applicable
Project Plan or otherwise, each of PUROLITE and MR3 agree to
undertake an active marketing and promotion effort for each of the
projects pursuant to this Agreement. Each Party agrees to serve as a
reference in the other Party's proposals for a reasonable number of
contacts by prospective customers of the other Party. Under the
direction of the Project Managers, the Parties may by mutual
agreement or plan undertake joint-marketing or co-marketing programs
or activities as appropriate to further the intent of this Agreement
and the alliance created hereby.
5. TERM OF AGREEMENT
This Agreement shall be for a term commencing on November 1, 2004, and
continuing for one (1) years, after which the Agreement will renew with one (1)
years evergreen renewal up to two (2) years unless terminated earlier as
provided in Section 7. The agreement may be extended with approval by both
parties.
6. RELATIONSHIP BETWEEN PARTIES
Each Party's relationship with the other Party is strictly that of an
independent business corporations participating in a strategic alliance and
project venture under this Agreement. It is explicitly understood and agreed
that no other relationship is intended, including partnership, franchise,
agency, employer/employee, fiduciary, master/servant relationship, or other
special relationship. Neither Party shall act in a manner that expresses or
implies a relationship other than that stated in Section 6 herein.
7. TERMINATION
This Agreement may be terminated by any one of the following:
7.1. The end of term of this Agreement as specified in Section 5.
7.2. The agreement may be terminated with 3 months notification.
7.3. The failure of the Parties to execute the projects outlined in
Section 3 to mutual satisfaction of the Parties within one (1) year
after signing of this agreement.
7.4. The financial insolvency, liquidation, or dissolution of PUROLITE.
7.5. The financial insolvency, liquidation, or dissolution of MR3.
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8. CONSEQUENCES OF TERMINATION
Upon termination of this Agreement under Section 7.4 and only 7.4 above,
PUROLITE hereby grants to MR3, as of the date of such termination, a perpetual,
royalty-free license to manufacture and use any products, which have been
commercialized under Section 3.2 above or which have entered into evaluation
under Section 3.1 above.
Upon termination of this Agreement under Section 7.5 and only 7.5 above, MR3
hereby grants to PUROLITE, as of the date of such termination, a perpetual,
royalty-free license to manufacture and use any products, which have been
commercialized under Section 3.2 above or which have entered into evaluation
under Section 3.1 above.
9. NO ASSIGNMENTS
Neither Party may assign its rights or delegate its obligations hereunder,
either in whole or in part, whether by operation of law or otherwise, without
the prior written consent of the other Party. Any attempted assignment or
delegation without consent will be void. The rights and liabilities of the
Parties under this Agreement will bind and inure to the benefit of the Parties'
respective successors and permitted assigns; such as personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees, legatees and permitted assignees of the Parties hereto.
10. NOTICE
For the purpose of this Agreement, any notice required or permitted to be given
by either Party under this Agreement shall be in writing and shall be personally
delivered or sent by a reputable overnight mail service (e.g., Federal Express),
or by first class mail (certified or registered), or by facsimile confirmed by
first class mail (registered or certified), to the Project Manager of other
Party. Notices will be deemed effective (I) three (3) working days after
deposit, postage prepaid, if mailed, (II) the next day if sent by overnight
mail, or (III) the same day if sent by facsimile and confirmed as set forth
above. A copy of any notice shall be sent to the following:
10.1. MR3 Systems, Inc., 000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxxxxxx, XX
00000-0000; Attn: Xxxxxxx X. Xxx, Ph.D., CEO; Fax: (000) 000-0000.
10.2. PUROLITE, 000 Xxxxxxxx Xxxx, Xxxx Xxxxxx, XX 00000; Attn: Xxx Xxxx,
Northeast Sales and Marketing Manager; Fax: (000) 000-0000.
11. RESTRICTIVE COVENANTS
11.1. CONFIDENTIALITY. Each Party acknowledges that in forming this
strategic alliance and venture hereunder, each Party will occupy a
position of extreme trust and confidence with respect to the other
Party's business information, organizational goals, and corporate
strategy. The Parties have entered into a separate Confidentiality
Agreement that sets forth the obligations and rights of the Parties
concerning confidentiality. A copy of the Confidentiality Agreement
is attached hereto as Exhibit "A" and is hereby incorporated by this
reference.
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11.2. NON-SOLICITATION OF EMPLOYEES. Each Party recognizes that it may
obtain confidential information about the other Party's consultants
and employees. Each Party recognizes that this information is not
generally known, and is of substantial value in developing and
maintaining the other Party's business. Each Party agrees that
during the term of this Agreement and for a period of two (2) years
after termination, each Party will not, directly or indirectly,
solicit or recruit any consultant or employee of the other Party for
any other employment or consultancy.
11.3. NON-COMPETITION OF BUSINESS AND PROJECTS. During the term of this
Agreement and for a period of two (2) years after termination, each
Party shall not, directly or indirectly, pursue the projects, with
the Products, initiated and implemented under this Agreement with a
third Party without the written consent of PUROLITE and MR3. Each
Party agrees that it will not reverse engineer the concepts,
strategies, implementation plans of the projects outlined in Section
3 so as to reproduce the projects under a different name or venue
for the purpose of independent operation or venture with a third
Party outside of this Agreement.
11.4. SURVIVAL OF PROVISIONS. The obligations contained in this Section 11
shall survive the termination or expiration of this Agreement and
shall be fully enforceable thereafter in accordance with the terms
contained in Section 11. If it is determined by a court of competent
jurisdiction in any state that any restriction in this Section 11 is
excessive in duration or scope or extends for too long a period of
time or over too great a range of activities or in too broad a
geographic area or is unreasonable or unenforceable under the laws
of that state, it is the intention of the parties that such
restriction may be modified or amended by the court to render it
enforceable to the maximum extent permitted by the law of that
state.
12. SEVERABILITY
The provisions of this Agreement shall be deemed severable and the invalidity or
unenforceability of any provision shall not affect the validity or
enforceability of the other provisions hereof. If for any reason a court of
competent jurisdiction finds any provision of this Agreement to be
unenforceable, that provision of the Agreement will be enforced to the maximum
extent permissible so as to affect the intent of the Parties, and the remainder
of this Agreement will continue in full force and effect.
13. COUNTERPARTS
This Agreement may be executed in several counterparts and transmitted via
facsimile, each of which shall be deemed to be an original but all of which
together will constitute one and the same instruments.
14. WAIVER
No provision of this Agreement may be modified, waived or discharged unless such
waiver, modification or discharge is agreed to in writing and signed by the
Project Managers of both Parties. No waiver by either Party hereto at any time
of any breach by the other Party hereto of, or compliance with, any condition or
provision of this Agreement to be performed by such other Party shall be deemed
a waiver or similar or dissimilar provisions or conditions at the same or at any
prior or subsequent time.
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15. GOVERNING LAW AND DISPUTE RESOLUTION
This Agreement shall be governed by and construed in accordance with the laws of
the State of Delaware. This Agreement shall not be construed against one Party
or the other as the drafter. Any disputes arising under or to interpret the
terms of this Agreement shall be resolved in the following manner:
15.1. INITIAL CONSULTATION AND NEGOTIATION. In the event a dispute between
the Parties arises under the Agreement or a Party's performance
thereunder, the matter shall first be escalated to PUROLITE's
Project Manager and MR3's Project Manager in an attempt to settle
such dispute through consultation and negotiation in good faith and
a spirit of mutual cooperation.
15.2. CONTINUED PERFORMANCE. Except where prevented from doing so by the
matter in dispute, the Parties agree to continue performing their
obligations under this Agreement while any good faith dispute is
being resolved unless and until such obligations are terminated by
the termination or expiration of any project or this Agreement.
16. FINAL AGREEMENT
This Agreement terminates and supersedes all prior understandings or agreements
on the subject matter hereof excluding specifically the Confidentiality
Agreement attached as Exhibit "A". Only a writing that is duly executed by both
the Parties may modify this Agreement. This Agreement constitutes the entire
Agreement between the Parties with respect to the subject matter hereof. Each
person who signs this Agreement represents and warrants that he or she does so
after full opportunity to consult with counsel and with the full and legal
authority to execute this Agreement on behalf of the respective Parties to this
Agreement.
17. INSURANCE
Each Party shall maintain liability and other insurance typical of the industry
for this type of Agreement for their respective employees, consultants, and
contractors.
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18. INDEMNIFICATION
To the fullest extent allowed by law, each Party shall indemnify and hold the
other Party's officers, directors, employees, shareholders, agents, and his
heirs, personal representatives, successors and assigns harmless against any
loss, expense, damage, claim, or injury suffered or sustained by either Party by
reason of any acts, errors, omissions, or alleged acts or omissions related to
this Agreement. Each Party's duty to indemnify will include any judgment, award,
settlement, reasonable legal fees, and other costs and expenses related to the
defense of any actual or threatened action, proceeding, or claim. The
indemnification herein provided shall apply also in respect of any amount paid
in compromise of any such action, suit, proceeding or claim asserted (including
expenses, counsel fees and costs reasonably incurred in connection therewith),
provided each Party shall have first approved such proposed compromise
settlement, which approval shall not be unreasonably withheld.
This Agreement must be executed with the attachment of all the Signatory
pages.
IN WITNESS WHEREOF, the Parties consisting of PUROLITE and MR3, by and through
its duly authorized officer, have executed this Agreement as of the date first
written above.
THE PUROLITE COMPANY
By: /S/ XXXX XXXX Date: November 15, 2004
--------------------------------------- -----------------
Xxx Xxxx
Northeast Sales and Marketing Manager
MR3 SYSTEMS, INC.
By: /S/ XXXXXXX X. XXX Date: November 15, 2004
------------------ -----------------
Xxxxxxx X. Xxx, Ph.D.
Chief Executive Officer
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EXHIBIT A: CONFIDENTIALITY AGREEMENT
Provisions Applicable to Confidential Information
Definitions
1.1 As used herein "Confidential Information" shall mean the terms and
conditions of this Agreement, the existence of the discussions between the
Parties, any information disclosed in connection with the development and
integration projects being undertaken as described in Section 3 above in the
Agreement, and any proprietary information a Party considers to be proprietary,
including but not limited to, information regarding each Party's project plans,
project designs, project costs, product and component prices, finances,
marketing plans, business opportunities, personnel, research and development
activities, know-how and pre-release products; provided that information
disclosed by the disclosing party ("Disclosing Party") in written or other
tangible form will be considered Confidential Information by the receiving party
("Receiving Party") only if such information is conspicuously designated as
"Confidential," "proprietary" or a similar legend. Information disclosed orally
shall only be considered Confidential Information if: (i) identified as
confidential, proprietary or the like at the time of disclosure, and (ii)
confirmed in writing within thirty (30) days of disclosure. Confidential
Information disclosed to the Receiving Party by any affiliate or agent of the
Disclosing Party is subject to this Agreement.
Disclosure Restrictions
2.1 Except as set forth in Section 2.2 below, the Receiving Party shall
treat as confidential and shall not directly or indirectly use or disclose
Confidential Information, whether received prior to the date of this Agreement,
during its negotiation, or after the execution hereof. The Parties shall treat
the terms and conditions and the existence of this Agreement as Confidential
Information. Each Party shall obtain the other's consent prior to any
publication, presentation, public announcement or press release concerning the
existence or terms and conditions of this Agreement.
2.2 The provisions of Section 2.1 above shall not apply to:
(a) Confidential Information that Receiving Party can demonstrate was
rightfully in Receiving Party's possession prior to the date of
disclosure to Receiving Party;
(b) Confidential Information that, at the time of disclosure or later,
is published or becomes otherwise available to the general public as
part of the public domain through no act or failure to act on the
part of Receiving Party receiving the disclosure;
(c) Confidential Information that is disclosed to a third party in
accordance with written direction or approval from or of the
Disclosing Party claiming the proprietary interest;
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(d) Confidential Information that Receiving Party is obligated to
produce under order of a court of competent jurisdiction; provided
that Receiving Party shall, upon learning of the issuance or planned
issuance of such order, immediately give written notice of the same
to the Disclosing Party; provided further that when either
Disclosing Party or Receiving Party has notice of the pendency of
any action that may result in a court order to produce such
Confidential Information, said recipient of notice agrees to notify
the other Party of the facts pertaining to any such action as soon
as practicable under the circumstances in order to give the other
Party an opportunity to protect its interests;
(e) Disclosures of Confidential Information by Receiving Party to any of
its employees, officers, agents, consultants, representatives,
lenders, counsel, lender's counsel and Affiliates (hereinafter
collectively referred to as "Representatives") who have a need to
know related to the business of the Disclosing Party; provided that
Receiving Party shall instruct its Representatives that any
Confidential Information conveyed is proprietary to the Disclosing
Party involved and that it is to be held in strict confidence by
said Representatives, and Receiving Party shall use its best efforts
to ensure that all of its Representatives to whom Confidential
Information is disclosed will take all reasonable precautions to
safeguard and preserve the confidential status of the Confidential
Information.
2.3 Receiving Party shall take all necessary precautions to exclude
unauthorized personnel and visitors from areas where Confidential Information is
or may be available or observable.
Return of Materials
3.1 Upon termination of the Agreement, Receiving Party shall promptly (a)
return to the Disclosing Party the originals and any copies of Confidential
Information that was provided to the Receiving Party by the Disclosing Party and
(b) certify in writing to the Disclosing Party that the Receiving Party has
complied fully with the provisions of this Section 3.1.
Limitation
4.1 Nothing contained in this Agreement shall be construed as a grant of
any right or license or an offer to grant any right or license by Disclosing
Party to the Receiving Party with respect to the Confidential Information
exchanged hereunder.
Term
5.1 The term of these provisions shall run from the date hereof until two
(2) years after the termination of the Agreement.
