EXCLUSIVE LICENSE AGREEMENT
This LICENSE AGREEMENT, made effective as of the 9th day of January 2007, by and
between GS CLEANTECH CORPORATION, a Delaware corporation having its principal
place of business at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(hereinafter referred to as "Licensor"), GS AGRIFUELS CORPORATION, a Delaware
corporation having its principal place of business at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (hereinafter referred to as "GSGF" or
"Licensee").
BACKGROUND
WHEREAS, Licensor has invented, acquired and/or licensed new patented and
patent-pending implementations of several technologies to produce
Biomass-derived fuels and energy and/or Precursors to Biomass-derived fuels and
energy and owns other intellectual property and know how relating thereto, with
possible applications in activities relating to the Field of Use, as such term
is hereinafter defined; and,
WHEREAS, Licensor is party to that certain Technology Acquisition Agreement, as
amended, with ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Technologies, LLC, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇.
▇▇▇▇▇, and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (the "COES Agreement"), pursuant to which the
Licensor acquired Licensor's corn oil extraction technology (the "COES") subject
to certain ongoing fee, royalty and commercialization obligations;
WHEREAS, Licensor and Licensee are party to that certain Distribution Agreement,
as amended, with ZeroPoint Clean Tech, Inc., pursuant to which Licensee was
granted exclusive distribution rights to ZeroPoint's biomass gasification and
related technologies (the "Gasifier") in the North American corn ethanol
production industry and non-exclusive distribution rights in other markets, and
pursuant to which Licensor granted ZeroPoint certain reciprocal non-exclusive
marketing rights to its COES and other technologies; and,
WHEREAS, Licensee wishes to develop and use the COES for activities relating to
the Field of Use.
NOW, THEREFORE, intending to be legally bound, and in consideration of the
mutual covenants contained herein, the parties hereby agree as follows:
1. Definitions
(a) Patent Rights
Patent Rights shall mean the: (i) United States Patents and United States
Patent Applications described and included in Exhibit A, attached hereto,
and any United States Patents that issues therefrom; (ii) any United States
Letters Patent now owned or controlled by Licensor under which Licensor has
the right to grant licenses that are related to the technology described in
the Letters Patent or that incorporate or improve upon such United States
Letters Patent; and (iii) any division, reissues, continuations-in-part,
and extensions of the foregoing now owned, or which may be owned, by
Licensor or under which they now have, or may in the future have, the right
to grant licenses and shall include Foreign Patent Rights. "Foreign Patent
Rights" shall mean all letters patent claiming priority from or based upon
the Patent Rights and recognized in jurisdictions where the Patent Rights
are not, without further action, recognized, and which provide the
protection and benefits to the holder thereof substantially the same as the
holder of the Patent Rights enjoys in the United States.
(b) Field of Use
Field of Use shall mean the production and sales of (i) Biomass-derived
fuels and energy, such as ethanol, biodiesel, and other synthetic gases and
fuels, and/or (ii) Precursors to Biomass-derived fuels and energy, such as
corn oil and algae (hereinafter referred to as "Field of Use").
(c) Gross Sales
Gross Sales shall mean the net revenues received by Licensee deriving from
the production and sales of (i) Biomass-derived fuels and energy, such as
ethanol, biodiesel, and other synthetic gases and fuels, and/or (ii)
Precursors to Biomass-derived fuels and energy deriving from the COES
(including corn oil and corn oil derived biodiesel), Tornado Generator
and/or CO2 Bioreactor technologies. Such Gross Sales shall not include
excise, sales, or production taxes, if any, paid by Licensee.
(d) Biomass
Biomass shall mean carbonaceous biological matter comprised of plant and
animal materials including materials comprised of or deriving from plants,
animals, algae, agriproducts, paper, sewage and wastes and/or co-products
containing plant and/or animal matter.
(e) Precursor
A Precursor shall mean a raw material comprised of Biomass that can be
converted into fuels and/or energy.
(f) Extraction System
For the purposes hereof, an "Extraction System" shall refer to ONE (1)
system based on the COES and consisting of the equipment and components
necessary to extract about ONE MILLION FIVE HUNDRED THOUSAND GALLONS
(1,500,000) of corn oil (which amount is more precisely defined as about 3%
of the nameplate ethanol production capacity of the ethanol facility at
which the Extraction System is installed).
2. The License
Under the terms and conditions hereof, Licensor hereby grants to the
Licensee an EXCLUSIVE license to use the COES, any Licensor Patent Rights
(including any Foreign Patent Rights) now held or hereafter acquired
pertaining to the COES, and the technology, inventions and equipment
inherent therein for and in any relating to the Field of Use, set forth
above within the Territory defined below. The foregoing license grant shall
hereinafter be referred to as the "License."
(a) Territory
The territory to which this exclusive License applies is the maximum
territory possible (the "Territory"); the Licensor and Licensee agree
and acknowledge that the term "Territory" shall, regardless of
context, be construed as broadly as possible.
(b) COES Fees and Royalties
(i) License Fee
The Licensee shall pay Licensor a one-time fee equal to FIVE
CENTS ($0.05) per gallon of installed and commissioned corn
oil production capacity (the "COES License Fee"), which COES
License Fee shall be paid to Licensor in cash upon the
commissioning of each Extraction System; provided, however,
that the payment of the COES License Fee shall be subject to
the terms and conditions of Section 2(b)(iii) hereof.
(ii) Royalty
During the term of this Agreement, for any and all use by or
for the benefit of Licensee of the COES (as defined with
more precision in Exhibit A) in the Field of Use, the
Licensee shall pay to the Licensor a royalty fee equal to
the greater of either (x) TEN CENTS ($0.10) per gallon of
corn oil extracted for so long as COES extraction systems
continues to extract corn oil or (y) THREE PERCENT (3%) of
Licensee's Gross Sales deriving from the sale of biodiesel
produced from corn oil (the "COES Royalty"), which amount
shall be paid in cash on a monthly basis commencing 30 days
after the commissioning of each corn oil extraction system;
provided, however, that the payment of the COES Royalty
shall be subject to the terms and conditions of Section
2(b)(iii) hereof.
(iii) Contingencies
(1) Licensor Financed Extraction Systems
In the event that the Licensor finances and commissions any
Extraction Systems, the Licensor shall retain the right to
purchase and sell the corn oil extracted from any such
Extraction System(s). The Licensor shall have the right to
sell any such corn oil to any third party until such time as
the Licensee commences production at a Licensee owned
biodiesel facility, after which time the Licensee shall
(A) purchase, on a TAKE OR PAY basis, the corn oil
extracted with any such Extraction System(s) at a rate
equal to SEVENTY FIVE PERCENT (75%) of the
then-prevailing preceding month's average "spot" price
for diesel fuel, which price will be based on the
average of the previous month's daily closing New York
Harbor and U.S. Gulf Coast spot prices for diesel fuel)
(the "Diesel Spot") until such time as
(B) Licensee (x) purchases any such Extraction System(s)
from Licensor at a rate equal to Licensor's cost for
such Extraction System(s) and all related necessary
balance of plant plus 20%, (y) pays Licensor the
applicable COES License Fee as provided for in Section
2(b)(i) hereof, and (z) begins paying Licensor the COES
Royalty as provided for in Section 2(b)(ii) hereof.
(2) Licensee Financed Extraction Systems; First 5 Million
Gallons of Biodiesel
In the event that Licensee finances and pays for the
commissioning of any Extraction System(s) pursuant to the
terms of Section 2(c)(i) hereof, and until such time as a
cumulative total of FIVE (5) million gallons of corn oil
derived biodiesel have been sold, then Licensee shall (x)
pay Licensor the applicable COES License Fee as provided for
in Section 2(b)(i) hereof upon commissioning of any such
Extraction System(s), and (y) begin paying Licensor the COES
Royalty as provided for in Section 2(b)(ii) hereof
commencing 30 days after Licensee initiates production and
sales of corn oil derived biodiesel.
(3) Licensee Financed Extraction Systems; Ongoing of
Biodiesel
In the event that Licensee finances and pays for the
commissioning of any Extraction System(s) pursuant to the
terms of Section 2(c)(i) hereof, and after such time as a
cumulative total of FIVE (5) million gallons of corn oil
derived biodiesel have been sold, then Licensee shall (x)
pay Licensor the applicable COES License Fee as provided for
in Section 2(b)(i) hereof upon commissioning of any such
Extraction System(s), and (y) begin paying Licensor the COES
Royalty as provided for in Section 2(b)(ii) hereof
commencing immediately after commissioning of any such
Extraction System(s).
(4) Corn Oil Sales; Permitted Parties
In the event that either Licensor or Licensee purchase corn
oil extracted from the COES as provided hereunder and do not
sell any such corn oil to, or process any such corn oil in,
a Licensee owned biodiesel facility, then Licensor and
Licensee agree that any sales of any such corn oil shall be
sold according to the following preferences:
(A) First, to any third party biodiesel
producer utilizing the biodiesel
production technology and equipment
of Licensee's NextGen Fuel, Inc.
subsidiary;
(B) Second, to any third party biodiesel
producer operating at most two
biodiesel facilities;
(C) Third, to any other mutually agreed
upon third party biodiesel producer;
and,
(D) Fourth, to any third party for any
purpose other than biodiesel
production.
Under no circumstances shall Licensor enter
into contracts obligating it to sell or
deliver corn oil longer than one month in
duration without the written consent of
Licensee.
(iii) Commercialization Requirements
The Parties agree and acknowledge that the Licensee was
formed and capitalized specifically to raise the capital
necessary to fully commercialize and implement a
go-to-market strategy in the Field of Use that is
substantially based on the Technologies. An essential
element of the Parties' respective inducement to enter into
this Agreement is that the Licensee shall obtain such
financing and properly commercialize the COES. In addition,
the Licensor is itself subject to certain commercialization
requirements relative to the COES pursuant to the COES
Agreement. Accordingly, the Licensee and the grant of this
License shall be subject to the following requirements with
respect to the commercialization of the COES:
(1) Cumulative Sales
Licensee shall cause the commissioning of THREE (3)
Extraction Systems on or before December 31, 2008, and an
additional FIVE (5) Extraction Systems, for a total of EIGHT
(8) Extraction Systems, on or before December 31, 2009, and
an additional FIVE (5) Extraction Systems per year for each
year thereafter up to a total of EIGHTEEN (18) Extraction
Systems on a cumulative basis; provided, however, that
Licensee's obligation hereunder shall be contingent upon
equipment or component availabilities. The cumulative aspect
of this requirement shall mean that Purchaser shall receive
credit for all Extraction Systems commissioned, regardless
of the time of such commissioning, during the Term hereof.
(2) Opportunity to Cure; Pre-Payment
In the event that Licensee fails to in any way cause the
commissioning of the above stated number of Extraction
Systems on or before the dates specified above, then
Licensee shall have the opportunity to cure any such failure
by pre-paying a fee equal to TWENTY PERCENT (20%) of
Licensor's gross margin on the sale of any such Extraction
System(s) which amount, at a minimum, would otherwise have
been earned by Licensor upon the commissioning of the
then-current required number of Extraction Systems (the
"Extraction Fee"). For example, if Licensee has only caused
the commissioning of SEVEN (7) Extraction Systems on or
before December 31, 2009, but pre-pays the Extraction Fee
for ONE (1) Extraction System, then Licensee shall be deemed
to have satisfied its requirement as of December 31, 2009.
Similarly, if Licensee has only caused the commissioning of
SEVEN (7) Extraction Systems on or before December 31, 2009,
but then pre-pays the Extraction Fee for ELEVEN (11)
Extraction Systems, then Licensee shall have no further
obligation pursuant to this Section.
(iv) Minimum Annual Royalty
Licensee shall pay Licensor a minimum annual royalty of ONE
MILLION DOLLARS ($1,000,000) per year commencing with the
FIRST (1st) ANNIVERSARY of the execution hereof (the
"Minimum Annual Royalty") for all use of the COES. In the
event that Licensee fails to pay any Minimum Annual Royalty
when due as provided for hereunder, the Licensor shall
provide Licensee with reasonable written notice of said
failure to pay. Licensee shall thereafter pay any Minimum
Annual Royalty payments that may be due to Licensor within
NINETY (90) DAYS after its receipt of any such notice. In
the event that Licensee fails thereafter to pay any Minimum
Annual Royalty payments that may be then due, the Licensor
shall have the right to revoke Licensee's exclusivity for
the Field of Use.
(c) Design-Build and Engineering Services; Equipment Sales
(i) To Licensee Facilities
Licensee and/or its designated affiliate shall EXCLUSIVELY
(unless waived by Licensor in writing) purchase Extraction
Systems and any other equipment and components central to
the initial and ongoing application of the COES (the
"Equipment") and retain Licensor to provide design-build,
process engineering and ongoing technical services relating
to the design, construction and ongoing operation of all
processing facilities based on the COES and all Licensee
biodiesel and related processing facilities (the "Services")
on a cost plus 20% basis.
(ii) To Third Parties in Favor of Licensee
The Licensor shall retain the right to directly sell
Equipment and services based on the COES to third parties in
the Field of Use provided that the Licensor shall, unless
waived in writing by Licensee, expressly condition any such
sale upon the grant by the relevant third party to the
Licensee of the exclusive ongoing rights to purchase
Precursors produced by the COES for so long as any such
third party uses the COES equal to no more than SEVENTY FIVE
PERCENT (75%) of Diesel Spot.
(iii) Reciprocal Marketing Rights; Gasifier
As additional consideration for the rights granted to
Licensee hereunder and in view of Licensor's non-exclusive
grant of certain marketing rights to ZeroPoint for
Licensor's COES and Tornado Generator technologies, Licensor
shall have the non-exclusive right to market and sell
Gasifier systems outside of the Field of Use pursuant to the
conditions of Section 1.1(b) and Section 1.1(b)(i) of the
ZeroPoint Agreement.
(f) Carbon Credits
Licensor shall retain exclusive ownership of any carbon
credits, emissions offsets, renewable energy certificates,
energy efficiency certificates and similar attributes based
on the use by Licensee and/or its affiliates and/or other
permitted users of the COES and all products deriving
therefrom (the "Attributes"); provided, however, that
Licensee shall receive a reverse commission of FIVE PERCENT
(5%) of Licensor's sales deriving from its sale of the
Attributes. Licensor and Licensee shall use their collective
best efforts to design, build, implement and operate the
Technologies and facilities based on COES and all products
deriving therefrom in a manner that enables Licensor to
retain ownership of the Attributes.
(g) Best Efforts Cooperation
The parties shall use their respective best efforts to
cooperate with each other relative to the use of the COES and
all products deriving therefrom.
(h) Sublicense and Assignment to Majority Owned Subsidiaries
Permitted
The License to the COES granted herein may not be
sub-licensed or assigned, or in any way transferred by the
Licensee except to Licensee's majority owned subsidiaries
without Licensor's prior written consent, which consent
shall not be unreasonably withheld.
(i) Right of First Offer; CO2 Bioreactor; Tornado Generator
In the event that the Licensor desires to license its CO2
Bioreactor technology and/or its Tornado Generator
technology for applications in the Field of Use, then
Licensor shall provide Licensee with the first right of
offer with respect to any such license. In addition, in the
event that Licensor produces Precursors with its CO2
Bioreactor technology or processes Biomass into Precursors
with its Tornado Generator technology, then Licensor shall
provide Licensee with the right of first offer with respect
to the purchase of any such Precursors.
3. Restrictive Covenants
(a) Confidential Information
Each party acknowledges that during the term of this
Agreement and otherwise pursuant to the terms hereof, each
party shall have access to certain written and non-written
information of the other which the disclosing party
considers confidential and proprietary ("Confidential
Information"). In consideration for the non-disclosing party
being granted access to such Confidential Information and
for the other benefits hereunder, the non-disclosing party
hereby agrees that, during the term of this Agreement and
thereafter for a period of THREE (3) YEARS, the
non-disclosing party shall keep secret and retain in
strictest confidence, and shall not, without the prior
written consent of the disclosing party obtained in each
instance, furnish, make available or disclose to any third
party, or use for the benefit of himself or any third party,
any Confidential Information. As used in this Paragraph,
"Confidential Information" shall mean any information
relating to the business or affairs of the disclosing party
which is not generally known to the public, including, but
not limited to, product or business plans, improvements and
developments, the disclosing party financial statements;
customer and potential customer identities; names and
qualifications of the disclosing party employees, suppliers;
pricing methodologies and profit margins, including
information regarding competitive bids, business or
acquisition strategies, internal company and product
methodologies and analyses, inventions, copyrightable work
or other proprietary information used or developed by the
disclosing party in connection with its business, and the
existence and terms of this Agreement. Notwithstanding the
foregoing, Confidential Information shall not include any
information, which is or becomes in the public domain
through no wrongful act on the part of the non-disclosing
party or its employees or agents.
4. Advertising
The Licensor shall permit, without limitation, Licensee's publishing of
photographs and other reproductions of the Technologies, drawings and
specifications included with the relevant patent application, and narrative
portions of any work authored by either the Inventor or Licensor or the Licensee
relating to or describing the Technologies or their uses, including but not
limited to descriptions and narratives in any patent application or submittal
and in any submission to the United States Patent Office, the United States
Environmental Protection Agency or any other governmental (Federal State or
Municipal) entity which has jurisdiction over the manufacture, sale,
distribution, promotion or use of the Technologies. Licensor hereby grants to
Licensee a limited, royalty-free license to use any such works of authorship for
such purpose within the Territory. Nothing in this License Agreement shall be
construed as conferring upon the Licensee any right to include in advertising,
packaging or other commercial activities related to the Licensed Patent Rights,
any reference to the Licensor, its trade names, trademarks or service marks in a
manner that would be likely to cause confusion or to indicate that any product
manufactured pursuant to the Licensed Patent Rights is certified by the
Licensor.
5. Warranties
Licensor hereby warrants to, or as the case may be covenants with, the Licensee:
(i) that it has full authority and right to grant the License and to enter into
and perform its obligations hereunder, (ii) that the Patent Rights are valid,
and of a duration limited only by national statutes relating thereto, (iii) that
the License is valid (iv) that neither the Technologies, nor the Patent Rights,
nor Licensee's rights hereunder, are known to infringe upon the patent,
trademark, license, or other intellectual property rights of any person, and (v)
that no person's activities as of the date hereof are known to infringe upon the
Licensor's rights under the Patent Rights. Licensor does not warrant and it will
be the responsibility of Licensee to secure all required licenses, approvals,
permits, and authorizations necessary, for Licensee to manufacture, sell or
distribute equipment based on the Technologies for the Permitted Applications
contemplated by this License everywhere such equipment based on the Technologies
are intended to be manufactured, used, sold, or distributed as contemplated by
this License.
6. Infringement and Invalidation
Licensor or Licensee may take appropriate action to protect the integrity of the
License and to stop infringement by any other person upon the rights of Licensor
and Licensee under the Patent Rights and the rights of Licensee hereunder.
Licensor shall have the primary right (but not obligation) to bring legal action
against a perceived infringer of the Patent Rights within the Territory and
within Field of Use at Licensor's own expense; provided, however, that if
Licensor fails to do so, Licensee may do so at Licensee's own expense. In the
event either Licensee or Licensor takes any such action, Licensor and Licensee
shall cooperate with each other, participating in any litigation initiated as
reasonably requested and providing oral and written testimony in connection
therewith. If Licensee takes any such action, it shall be entitled to any and
all money damages awarded (or received in settlement) as a result of any such
infringement. In the event the Patent Rights are invalidated in whole by
reexamination or reissue proceedings in the U.S. Patent and Trademark Office, or
by judgment of a U.S. District Court (which judgment is not over-turned on
appeal) and as a result thereof Licensee's right or ability to manufacture,
develop, sell, or otherwise deal with the Technologies under the terms of this
License Agreement is terminated, then Licensee at its sole election shall be
entitled to terminate this Agreement without further obligation to Licensor.
7. Payment of the Royalties
So long as Licensee is obligated to pay the Royalty Fees under this License
Agreement, the Licensee shall keep an accurate account of all sales, leases,
sub-license agreements, and gross revenues for the applicable projects and,
within 30 days after the end of each calendar quarter, render to Licensor yearly
gross income statements to the Licensor, including statements of accrued or
estimated Royalty Fees payable, and Licensee shall pay to the Licensor the
amount of the Royalty Fees payable no less frequently than monthly and no later
than fifteen (15) days following each calendar month end. The Licensor shall
have the right, at Licensor's own expense and not more often than once in any
calendar year, to have an independent certified public accountant acceptable to
Licensee examine the books of the Licensee in relation to the applicable
projects to verify the Royalty Fee statements, and Royalty Fees due Licensor
pursuant to this License Agreement. If it is determined after such examination
that the Licensee owes the Licensor additional fees, the Licensee shall
reimburse the Licensor for all costs associated with the examination and
collection of funds.
8. Licensor's Obligations
In addition to all other obligations of Licensor hereunder, Licensor shall
either (i) pay all fees and annuities necessary to maintain the Patent Rights
and the Foreign Patent Rights, or (ii) notify Licensee on a timely basis of its
intent not to pay such fees or annuities and to provide Licensee a reasonable
opportunity to pay such maintenance fees or annuities. In order to support the
License at all times during the term of this Agreement, Licensor shall supply
Licensee with copies of any and all documents indicating its rights to patents,
patent applications, trademarks, copyrights, and any and all other related
material that substantiates Licensor's ability to grant the License to Licensee
worldwide in any and all domestic and international markets. Licensor shall also
provide to Licensee any and all drawings, specifications, and any and all other
then-existing material necessary to enable and to support Licensee's
manufacturing of the Products, notwithstanding the right of first refusal terms
hereof, worldwide in any and all domestic and international markets.
9. Improvements to the Technologies
The Licensor shall retain the exclusive ownership of the Technologies and any
and all developments and improvements thereto, whether made by the Licensor
and/or the Licensee (the "Development and Improvements"), provided, however,
that any such Developments and Improvements shall be incorporated into the scope
of the License and the Licensee shall have the continuing exclusive rights in
the Territory to any such Developments and Improvements for applications related
to the Field of Use on the terms and conditions specified herein.
(a) Disclosure
If either party at any time makes Developments and Improvements to the
Technology, then the developing party shall communicate any such
Developments and Improvements to the non-developing party as soon as
reasonably practicable, including any and all drawings,
specifications, analytical and other reports, and any other
information and material in any way related to any Developments and
Improvements.
10. Term and Termination
This Agreement shall commence on the Effective Date and shall continue for an
initial term of TWENTY (20) YEARS. This Agreement and the License shall
automatically renew for an additional one-year period, which additional one year
period provided that the Licensee is and remains in compliance with the terms
hereof. Similarly, this Agreement and the License shall renew for successive ONE
(1) YEAR periods in perpetuity for so long as the Licensee continues to remain
in compliance with the terms hereof for the previous ONE (1) YEAR period.
If the Licensee at any time defaults in fulfilling any material obligations
hereunder, or under any financing agreement between Licensor and Licensee, and
such default is not cured within NINETY (90) DAYS after written notice thereof
is given by Licensor to Licensee, Licensor shall have the right to terminate
this Agreement and the License by giving written notice of termination to the
Licensee.
11. Miscellaneous
(a) Assignments Permitted
This Agreement shall be binding upon and inure to the benefit
of the parties and their respective successors and assigns.
(b) Sub-licenses Permitted
Licensee may grant sub-licenses to the extent necessary to
generate revenues with the Technologies in its Territory, and
Licensee's customers shall have the benefit of the License solely
for their own use, and manufacturers, fabricators and installers
of the equipment based on the Technologies specifically for
Licensee shall have the benefit of the License solely in
connection with their manufacturing, fabrication and installation
operations of equipment and/or products in the Field of Use.
(c) Governing Law
This Agreement shall be considered made in New York, and it shall
be governed by and construed under the laws of the United States
of America and New York. In the event of litigation between the
parties pursuant to any term or provision of this Agreement, then
the prevailing party in any such litigation shall be entitled to
an additional award of its attorneys' fees actually incurred in
the course of such litigation.
(d) Insurance
During the Term of this Agreement, and for so long as each
relevant party sells products based on the Technologies, such
party shall maintain adequate products liability insurance
covering its manufacture and sale of products based on the
Technologies providing coverage for damages (and legal defense),
and the insuring party shall provide coverage for the
non-insuring party as additional insureds under such insurance
policy.
(e) Entire Agreement
This Agreement contains the entire agreement of the parties with
respect to the subject matter hereof and supersedes all prior
agreements, understandings, negotiations, and communications
relating to its terms. Accordingly, notwithstanding any provision
of this Agreement to the contrary, GSGF, if it elects to do so,
shall be entitled to assign its rights and obligations under this
Agreement to its parent company, GSGF Corporation, or any of its
subsidiaries. No amendment or modification of this Agreement
shall be binding unless signed by the party against whom
enforcement is sought.
(f) Indemnification
Each party shall indemnify and hold harmless the other party and
its affiliates or other related entities from and against any and
all losses, damages, liabilities and claims (including legal fees
and costs) arising out of any breach of any of the breaching
party's obligations contained in or made pursuant to this
Agreement.
IN NO EVENT WILL LICENSOR'S LIABILITY UNDER THIS AGREEMENT EXCEED
THE AGGREGATE AMOUNT OF THE CUMULATIVE LICENSE FEES AND ROYALTY
FEES PAID UNDER THIS AGREEMENT AS OF THE DATE THE INDEMNIFICATION
OBLIGATION ARISES. IN NO EVENT SHALL LICENSOR BE LIABLE TO
LICENSEE FOR ANY LOST OR ANTICIPATED PROFITS, OR ANY SPECIAL,
INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES.
(f) Waiver
Either party's waiver of any default under this Agreement by the
other shall not constitute a waiver of any subsequent or like
default or of its right to insist upon strict performance
thereof. All remedies of either party shall be cumulative and no
choice or remedy shall be deemed an election to the exclusion of
any other remedy.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first above written.
GS CLEANTECH CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Chief Executive Officer
GS AGRIFUELS CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Chief Executive Officer
EXHIBIT A
DETAILED DESCRIPTION OF THE TECHNOLOGIES
Corn Oil Extraction Technology
Certain intellectual property rights to a method, process and/or apparatus to
extract oil from distillers dried grain and other materials as provided for in
United States Patent Application Nos. 11/122,859, 11/241,231, 60/773,947,
60/813,264, PCT/US05/28937 and PCT/US06/009238 (the "Patent Application") and
any United States Patent that issues therefrom; any continuing, reissue,
continuation-in-part, and extension application based on the Patent Application
now owned, or which may be owned, by Seller or under which Seller now has, or
may in the future have, the right to grant licenses; (iii) all know how,
confidential, and trade secret information now known to Seller pertaining to the
technology described in the Patent Application.