Alliance Agreement with In Pipe Technology, LLC dated March 28, 2007 ALLIANCE AGREEMENT
EXHIBIT
10.4
Alliance
Agreement with In Pipe Technology, LLC dated March 28,
2007
THIS
ALLIANCE AGREEMENT (the “Agreement”) is entered into as of March 28, 2007,
between In-Pipe Technology Company, L.L.C., an Illinois limited liability
company (“In-Pipe”), and Exousia Advanced Materials, Inc., a Texas corporation
(“Exousia”).
BACKGROUND
WHEREAS,
In-Pipe owns certain technology used in the treatment of
wastewater;
WHEREAS,
Exousia has the ability to market and sell products to original equipment
manufacturers, distributors, and dealers in certain industries;
WHEREAS,
In-Pipe and Exousia have agreed to develop a dosing unit using In-Pipe’s
proprietary technology, suitable for installation adjacent to, and for
the
dosing of microbes into, wastewater tanks used in recreational vehicles,
private
aircraft, private watercraft and trains (each such dosing unit, a “Unit,” and
collectively, the “Units”);
WHEREAS,
In-Pipe and Exousia have also agreed that In-Pipe will arrange the design
and
manufacture of the Units and will sell the Units and microbes to be used
in the
Units, to Exousia, and that Exousia will market and sell the Units and
microbes
to original equipment manufacturers, distributors, and dealers; and
WHEREAS,
In-Pipe and Exousia are entering into this Agreement in order to set forth
the
terms and conditions pursuant to which they will jointly develop the Unit,
In-Pipe will arrange the design and manufacture of the Units and sell Units
and
microbes to Exousia, and Exousia will market and sell such Units to original
equipment manufacturers, distributors, and dealers;
AGREEMENT
NOW,
THEREFORE, in consideration of the foregoing and of other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
parties hereby agree as follows:
1. Recitals.
The
recitals set forth above are hereby incorporated into this Agreement by
reference.
2. Development
of Unit.
(a) In-Pipe
and Exousia shall cooperate in designing and otherwise developing the Unit.
Each
party shall devote the personnel and other resources reasonably required
of it
in order to complete the design of the Unit by September 1, 2007. In-Pipe
will
own all Intellectual Property Rights (as defined below) embodied in or
related
to the Unit, whether developed by In-Pipe, Exousia, or jointly by the parties
(the “Unit IP”). But Exousia will own any Intellectual Property Rights in items
previously developed by Exousia that are described on Exhibit A hereto
(“Exousia
IP”). “Intellectual Property Rights,” as used in this Agreement, means rights
throughout the world in any patent, patent continuation application,
continuation-in-part application, divisional application, reexamination,
reissue, reissued patent, copyright, moral right, trade name, trademark,
service
▇▇▇▇, trade dress, trade identity, logo, design, slogan, trade secret,
Confidential Information, Internet domain name, URL, general intangible,
computer software or application, tangible or intangible proprietary
information, know-how, proprietary process, formula, algorithm, and any
application or right throughout the world to apply for registration of
any of
the foregoing or any other intellectual property, whether registered or
unregistered.
(b) Exousia
hereby assigns to In-Pipe all of its Intellectual Property Rights in, related
to
or infringed by the Units, other than Intellectual Property Rights in the
Exousia IP. Exousia shall execute and deliver such instruments and documents
and
take such other acts as may be reasonably necessary to document the foregoing
assignment. If In-Pipe is unable, after two weeks, to secure Exousia’s signature
to apply for or to pursue any application for any patent, trademark, service
▇▇▇▇, copyright or other registration of rights in the United States or
elsewhere, then Exousia hereby designates and appoints In-Pipe as Exousia’s
limited agent and attorney in fact, to act for and on Exousia’s behalf and stead
with respect to securing those rights.
(c) Exousia
hereby grants In-Pipe a non-exclusive, worldwide, royalty-free copyright
license
to reproduce, prepare derivative works of, publicly display, publicly perform,
distribute and sublicense the Exousia IP, if any, and derivative works
of that
Exousia IP used in products manufactured, sold or distributed by In-Pipe.
Exousia hereby grants In-Pipe a non-exclusive, worldwide, royalty-free
trade
secret license to use, distribute, otherwise exploit and sublicense the
Exousia
IP used in products manufactured, sold or distributed by In-Pipe. Exousia
hereby
grants In-Pipe a non-exclusive, worldwide, royalty-free patent license
under all
patent claims licensable by Exousia to make, have-made, use, sell, offer
to
sell, import and otherwise transfer the Exousia IP, if any, used in products
manufactured, sold or distributed by In-Pipe. This patent license shall
apply to
the combination of the Exousia IP with any In-Pipe products.
(d) Upon
termination of this Agreement, if a license of any part of the Unit IP
is
desired by Exousia, In-Pipe and Exousia shall negotiate in good faith to
provide
a non-exclusive license of such rights from In-Pipe to Exousia for a mutually
acceptable license fee or royalties and on other mutually acceptable terms
and
conditions.
3. Production
of Units; Sale of Units and Microbes to Exousia.
(a) Following
In-Pipe and Exousia’s agreement on the design of the Unit, In-Pipe shall cause
production of Units and microbes to be used in the Units to be commenced,
in
quantities requested by Exousia in purchase orders submitted to In-Pipe
by
Exousia. All Units will be manufactured in accordance with In-Pipe’s quality
standards for use of In-Pipe’s proprietary technology. The parties intend that
In-Pipe’s inventory of Units and microbes will be minimal and the parties shall
cooperate to develop “just in time” production capability and
deliveries.
(b) In-Pipe
shall sell to Exousia and Exousia shall purchase such quantities of Units
and
microbes as are requested by Exousia in Exousia’s purchase orders. In-Pipe shall
be responsible for arranging and paying for shipping of all Units and microbes
from In-Pipe’s Wheaton, Illinois facility, or other distribution point, to
Exousia or Exousia’s customer, as directed by Exousia. Exousia shall take title
to Units and microbes ordered by it upon pickup by the shipper at In-Pipe’s
point of distribution. The parties agree that the intent of this alliance
is
that each party will share equally in the gross margin dollars realized
between
In-Pipe’s full cost of production (including but not limited to insurance,
taxes, tariffs, and other relevant costs) and the average price charged
by
Exousia to its OEM and wholesale customers. In-Pipe
shall provide Exousia with information supporting In-Pipe’s determination of its
cost of production, and Exousia shall provide In-Pipe with information
supporting Exousia’s indication of the prices it charges its customers and its
costs for shipping. Exousia’s purchase price for microbes shall be calculated in
the same manner in order that the parties are able to share equally the
gross
margin dollars. In-Pipe shall invoice Exousia for Units and microbes sold
to
Exousia at the time that such Units and microbes are shipped to Exousia
or
Exousia’s customer, whichever is earlier. Exousia shall pay In-Pipe the amount
of each such invoice within 30 days after the date of the invoice. The
parties
will meet annually during the last quarter of each calendar year to confirm
supply terms for the subsequent year, including pricing and quantities.
4. Marketing
and Sale of Units by Exousia.
Exousia
shall use its commercially reasonable best efforts to market the Units
and
microbes, and maximize sales thereof, to original equipment manufacturers
and
distributors on a worldwide basis. Exousia shall market the Units only
for
installation in recreational vehicles, private aircraft, private watercraft
and
trains (the foregoing applications constitute the “Field of Exclusivity”).
Exousia shall be free to determine the prices that its charges its customers
for
the Units and the microbes. Exousia shall develop an appropriate marketing
strategy and program to maximize sales of the Units. In-Pipe’s name and logo
shall appear in marketing. Prior to using In-Pipe’s name or logo in any
marketing materials, Exousia shall submit the proposed use of the name
or logo
to In-Pipe and In-Pipe shall have approved such use. The parties intend
that
In-Pipe’s name and logo be used less prominently in marketing the Units than the
brand of Exousia.
5. Exclusivity;
Exclusivity Fee.
(a) During
the term of this Agreement, except for the Unit or any other toilette solution
or competing product sold to it by In-Pipe, Exousia shall not, and shall
cause
its controlled affiliates not to, market, solicit orders for, or sell,
directly
or indirectly, any toilette solution or any product which competes with
the
Unit. Exousia agrees not, and shall cause its controlled affiliates not
to,
market, solicit orders for, or sell, directly or indirectly, the Units
outside
of the Field of Exclusivity.
(b) Subject
to Exousia’s compliance with this Agreement, including this Section 5(b), during
the term of this Agreement, including all renewal periods, In-Pipe shall
not
sell, directly or indirectly, Units in the Field of Exclusivity, to any
party
other than Exousia. The parties acknowledge that nothing in this Agreement
shall
prevent In-Pipe from selling the Units or other In-Pipe products to other
parties outside the Field of Exclusivity. In consideration of In-Pipe’s
agreement to sell Units for use in the Field of Exclusivity only to Exousia
during the term of this Agreement, Exousia agrees to pay In-Pipe a
non-refundable, irrevocable, initial exclusivity fee in the aggregate amount
of
$1,000,000.00 (the “ Initial Exclusivity Fee”). The Exclusivity Fee shall be
divided into payments as prescribed in this section. Exousia shall pay
the
installment payments of the Initial Exclusivity Fee to In-Pipe by cashier’s or
certified check or by wire transfer of immediately available funds to an
account
designated by In-Pipe. Installment payments of the Exclusivity Fee shall
be made
on the following dates: (i) $200,000 on the first day after Exousia receives
available funds resulting from the issuance and sale of bonds by the City
of
Elkhart, IN for the benefit of Exousia (expected on or prior to May 1,
2007),
(ii) $100,000 on October 31, 2007, (iii) $100,000 on January 10, 2008,
(iv)
$300,000 on March 30, 2008, and (v) $300,000 on June 30, 2008. The first
installment shall be reduced by the amount of the good faith deposit ($25,000)
previously paid by Exousia to In-Pipe. Interest shall accrue at the rate
of 12%
per annum on any portion of any installment of the Exclusivity Fee that
is not
paid within thirty (30) days of the due date. Any installment paid prior
to the
specified due date will be discounted by 2% per month it is paid early,
rounded
to the nearest whole month. The parties acknowledge and agree that the
initial
term of Exclusivity and the Initial Exclusivity Fee paid to In-Pipe is
full
compensation for the initial efforts expended by In-Pipe through December
31,
2007 to complete the design, arrange the manufacturing of the Units, and
meet
the time requirements of Exousia. The second and third years of Exclusivity
will
be maintained in exchange for the gross margin realized by In-Pipe from
Unit and
Microbe sales to Exousia. Upon termination of this Agreement for any reason
other than a material breach by In-Pipe, or by mutual agreement of the
parties,
all installments of the Exclusivity Fee that have not yet been paid shall
become
immediately due and payable. The above defined discount on early payments
will
apply to this accelerated termination payment.
6. Warranty.
In-Pipe
shall warrant the Units to be free from material defects in materials and
workmanship for a period of one (1) year following purchase by an end-user,
pursuant to a form of warranty to be agreed upon by In-Pipe and Exousia.
In-Pipe’s sole obligation pursuant to such warranty will be to repair or replace
a Unit, at In-Pipe’s option. THIS
LIMITED WARRANTY IS EXPRESSLY IN LIEU OF ANY OTHER WARRANTIES, EXPRESS
OR
IMPLIED. IN-PIPE DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE.
7. Confidential
Information.
(a) “Confidential
Information,”
as
used herein, means any information concerning any confidential, proprietary
or
secret aspect of any business (i) of In-Pipe or its affiliates or (ii)
of
Exousia or its affiliates (each of the entities described in the preceding
clauses (i) and (ii), a “Protected Party”), including, without limitation, the
activities of the parties related to the transactions contemplated by this
Agreement, financial statements and data, strategic business plans, proprietary
contracts (whether oral or written), budgets, pricing policies, marketing
plans
or strategies, business acquisition plans in any form or media, trade secrets,
know-how, software, developments, inventions, processes, technology or
designs,
including any of the foregoing relating to current or potential clients,
research, operations, finances, current or proposed products or services,
vendors, advertising or marketing.
(b) The
parties anticipate that, under this Agreement, it may be necessary for
either
party to make
disclosures
to the
other. Subject
to paragraph (c) below, neither
party
shall make any reproductions, disclosure or use of the
other
party’s
Confidential Information, except as instructed in writing by the disclosing
party.
(c) The
limitations on reproduction, disclosure or use of Confidential
Information shall not apply to, and neither party shall be liable for,
reproduction, disclosure or use of information
with
respect to which any of the following conditions exist:
(i) if,
prior
to the receipt thereof under this Agreement, the
information is in the public domain, the information
has been
developed independently by the party receiving it, or was lawfully known
to the
party receiving it, or has been lawfully received from other sources, including
any customer, provided such other sources did not receive it due to a breach
of
this or any other agreement, or in an unlawful manner;
(ii) if,
subsequent to the receipt thereof under this Agreement,
(A)
the
information
is
published by the party furnishing it or is disclosed by the party furnishing
it
to others without restrictions, or (B)
the
information
has been
lawfully obtained by the party receiving it from other sources, provided
such
other source did not receive it due to a breach of this or any other agreement,
or in an unlawful manner;
or
(iii) if
a
party is compelled by a governmental authority to disclose a Protected
Party’s
Confidential
Information,
but
only if that party provides the applicable Protected Party with written
notice
of the information to be disclosed as far in advance of its disclosure
as
practicable, that party uses reasonable efforts to obtain assurances that
the
Protected Party’s Confidential Information will be accorded confidential
treatment, and that party furnishes only that part of the Protected Party’s
Confidential Information that is legally required.
(d) Upon
termination of this Agreement and upon a written request of the disclosing
party, the receiving party shall return or destroy all documents
and other media containing or pertaining to any
Confidential Information of
the
disclosing party and
shall
certify in writing that the Confidential
Information has been returned
or destroyed.
(e) Neither
the execution and delivery of this Agreement, nor the furnishing of any
Confidential
Information by either party shall be construed as granting to the other
party
either expressly, by implication, estoppels, or otherwise, any license
under any
invention, patent, trademark or copyright now or hereafter owned or controlled
by the furnishing party.
(f) The
obligations set forth in this Section 7 shall survive any termination or
expiration of this Agreement.
8. Representations
and Warranties.
Each
party represents and warrants to the other that:
(a) it
(i) is
a corporation or limited liability company that is validly existing and
in good
standing in its jurisdiction of organization and (ii) has full power and
authority to enter into and deliver this Agreement;
(b) this
Agreement has been duly and validly executed and delivered by it and represents
its valid and binding obligations, enforceable against it in accordance
with its
terms; and
(c) neither
the execution and delivery of this Agreement by it nor the consummation
by it of
the transactions contemplated hereby will:
(i) violate
its corporate charter or by-laws, or in the case of a limited liability
company,
its articles of organization or operating agreement;
(ii) violate,
or be in conflict with, or constitute a default (or an event which, with
or
without due notice or lapse of time, or both, would constitute a default)
under,
or cause or permit the acceleration of the maturity of, any debt, obligation,
contract, commitment or other agreement to which it is a party, except
as would
not reasonably be expected to have an adverse effect on its performance
of this
Agreement; or
(iii) violate
any statute or law or any judgment, decree, order, regulation or rule of
any
court or governmental authority by which it is bound, except as would not
reasonably be expected to have an adverse effect on its performance of
this
Agreement.
9. Status
as Independent Contractors.
The
relationship of In-Pipe and Exousia under this Agreement shall be that
of
independent contractors. Nothing in this Agreement will be construed to
create
any
partnership, association
or joint
venture between
the parties or any fiduciary duties between them.
10. Indemnification
Generally.
(a) In-Pipe
shall indemnify, defend and hold Exousia and its employees, agents, officers,
directors and representatives (the “Exousia Indemnified Parties”) harmless from
and against all costs, liabilities and expenses, including without limitation,
attorneys’ fees and legal costs, associated with or in any way related to the
defense or settlement of any claim, suit, allegation or action (each, a
“Claim”)
brought against or suffered by any of the Exousia Indemnified Parties related
to: (i) any negligent acts or omissions by, or willful misconduct of, In-Pipe,
its employees, agents and representatives, or (ii) any failure of In-Pipe
to
comply with all applicable local, state and federal laws, rules and regulations.
(b) Exousia
shall indemnify, defend and hold In-Pipe and its employees, agents, officers,
directors and representatives (the “Exousia Indemnified Parties”) harmless from
and against all costs, liabilities and expenses, including without limitation,
attorneys’ fees and legal costs, associated with or in any way related to the
defense or settlement of any Claim brought against or suffered by any of
the
Exousia Indemnified Parties related to: (i) any negligent acts or omissions
by,
or willful misconduct of, the Exousia, its employees, agents and
representatives, (ii) any false or misleading advertisements and promotional
materials created by Exousia that relate to the Units or microbes, (iii)
the
marketing, distribution or sale of the Units or microbes by Exousia or
its
agents, (iv) any failure of Exousia to comply with all applicable local,
state
and federal laws, rules and regulations; or (v) any modification of or
addition
to the Units performed or approved by Exousia.
(c) Any
party
entitled to indemnification pursuant to this Section 10 (an “Indemnified Party”)
shall give the party obligated to indemnify it pursuant to this Section
10 (the
“Indemnifying Party”) prompt written notice of any Claim that is subject to this
Section 10. The Indemnifying Party will be relieved of its obligations
under
this Section 10 due to a delayed notice of the Claim only to the extent
the
defense of the Claim is prejudiced by any late notice. The Indemnified
Party
shall cooperate in the defense of any Claim at the Indemnifying Party’s sole
expense; provided, however, that under no circumstances shall the Indemnifying
Party pay for the time of any employee, officer or director of Indemnified
Party
in connection with their cooperation in such defense. The Indemnifying
Party
shall not settle any Claim without the prior written consent of the Indemnified
Party, which shall not be unreasonably withheld, unless the Indemnified
Party’s
only obligation under the settlement is the payment of a cash amount that
is
fully paid by the Indemnifying Party. The Indemnifying Party shall defend
the
Indemnified Party with counsel reasonably acceptable to Indemnified Party.
The
Indemnified Party shall be entitled to participate in the defense and settlement
of any Claim with independent counsel of its own choosing at its own expense.
11. Indemnification
for Intellectual Property Infringement.
(a) In-Pipe
agrees to defend, indemnify and hold harmless Exousia, from and against
any
final judgment by a court of competent jurisdiction arising out of a claim
that
the Units contain any misappropriated trade secret or infringe any U.S.
patent
issued as of the effective date of this Agreement, any trademark or any
copyright. This indemnification obligation will not apply unless: (i) In-Pipe
is
notified promptly in writing of the claim or the threatened or actual suit;
(ii)
Exousia, at In-Pipe’s request and expense, gives In-Pipe reasonable non-monetary
assistance; and (iii) In-Pipe is given control over all proceedings and
negotiations, including settlement negotiations.
(b) Following
notice of a claim or a threatened or actual suit, In-Pipe may: (i) procure
for
Exousia the right to continue to use the Units; (ii) modify the Units so
that
they do not misappropriate or infringe; in which case, Exousia will immediately
cease use of the alleged infringing or misappropriated Units; or (iii)
substitute other product or materials of like features and capability in
which
case, Exousia will immediately cease use of the alleged infringing or
misappropriated Units.
(c) If,
in
In-Pipe’s sole discretion, none of the foregoing is commercially reasonable,
In-Pipe may terminate this Agreement and direct Exousia to cease use of
the
Units. If In-Pipe terminates this Agreement pursuant to this Section 11,
upon
return of the Units by Exousia, In-Pipe will return the actual purchase
price
paid by Exousia for those Units under this Agreement, less twenty (20%)
for each
year that has passed since the Unit was sold to Exousia.
(d) In-Pipe
will not be liable for, and will not be required to indemnify Exousia for,
any
Loss which arises from: (i) combination or use of the Units with any materials
or product not supplied by In-Pipe; (ii) continued use of the Units after
Exousia receives notice of a claim of infringement, misappropriation or
instructions to discontinue use of the Units; (iii) use of the Units in
any
manner other than as set forth in the Unit’s technical documentation; (iv)
In-Pipe’s compliance with Exousia’s designs, specifications, plans or
instructions; or (v) modification of the Units. Exousia shall indemnify
In-Pipe
for any claim arising under this Section 11(d).
(e) This
Section 11 constitutes the entire liability of In-Pipe, and Exousia’s sole and
exclusive remedy, with respect to any third party claims of infringement
or
misappropriation of any intellectual property rights.
12. Term;
Termination.
The
initial term of this
Agreement begins
on
the date
hereof and ends
on
December
31, 2007. Beginning upon the expiration of such initial term and thereafter,
the
term of this Agreement will be continually extended for successive one
(1) year
terms, unless either In-Pipe or Exousia provides written notice of termination
to the other no later than 120 days before the end of the term then in
progress.
In addition, either party hereto shall have the right to terminate this
Agreement upon written notice to the other if the other (a) is in breach
of any
material term, condition, warranty or covenant of this Agreement and fails
to
cure that breach within sixty (60) days after receipt of written notice
of such
breach, (b) files a petition for bankruptcy, becomes insolvent, admits
in
writing to insolvency or inability to pay its debts or perform its obligations
as they mature, or makes an assignment for the benefit of creditors, or
(c) has
a petition in bankruptcy filed against it and such petition is not dismissed
within sixty (60) days of the filing date.
13. Effect
of Termination.
The
rights and obligations of the parties under all of the Sections of this
Agreement except Sections 3 and 4, shall survive the termination of this
Agreement. Upon any termination of this Agreement, Exousia shall provide
In-Pipe
with a list of the names, addresses and telephone numbers of all of the
customers that have ordered Units or microbes during the term of the Agreement.
In addition, upon termination of the Agreement Exousia shall cease using
the
In-Pipe name and logo in any manner in its marketing. Upon any termination
of
this Agreement, if Exousia has not failed to pay any amounts due to In-Pipe
or
committed any other material breach of this Agreement that has not been
cured,
In-Pipe shall fulfill all orders for Units and microbes received from Exousia
by
In-Pipe prior to termination, in accordance with the terms of such orders.
Exousia shall pay In-Pipe with respect to such orders in accordance with
the
normal payment terms for orders, as provided for in Section 3 hereof. If
this
Agreement is terminated and Exousia has failed to pay any amounts due to
In-Pipe
or has committed any other material breach of this Agreement that has not
been
cured, In-Pipe shall have the option of fulfilling outstanding orders for
Units
and microbes, in exchange for payment from Exousia in accordance with the
normal
payment terms for orders, or not fulfilling such orders. If In-Pipe exercises
its option not to fulfill the orders, Exousia shall promptly reimburse
In-Pipe
for all of In-Pipe’s costs incurred to date in connection with such
orders.
14. Dispute
Resolution.
(a) Exclusive
Procedures.
Any
dispute between the parties arising out of or relating to this Agreement
or
otherwise (whether such claim is based on contract, tort, statute or otherwise)
(a “Dispute”) shall be resolved in accordance with the procedures specified in
this Section 14, which shall be the sole and exclusive procedures for the
resolution of any Dispute.
(b) Negotiation
Between Executives.
The
parties shall attempt in good faith to resolve any Dispute promptly by
negotiation between executives who have authority to settle the controversy
and
who are at a higher level of management than the persons with direct
responsibility for the administration of the Agreement. Any party may give
the
other written notice of any Dispute (a “Notice”) not resolved in the normal
course of business. Within fifteen (15) days after delivery of a Notice,
the
receiving party shall submit to the other a written response (a “Response”). The
Notice and Response shall include (a) a statement of that party’s position and a
summary of arguments supporting that position, and (b) the name and title
of the
executive who will represent that party and of any other person who will
accompany the executive. Within 30 days after delivery of the Response,
the
executives of both parties shall meet at a mutually acceptable time and
place,
and thereafter as often as they reasonably deem necessary, to attempt to
resolve
the Dispute. All negotiations pursuant to this subsection (b) shall be
confidential and shall be treated as compromise and settlement negotiations
for
purposes of any subsequent proceedings under this Section 14.
(c) Binding
Arbitration.
Any
Dispute which has not been resolved by negotiation under subsection (b)
above,
shall be finally resolved by binding arbitration in accordance with the
rules of
the American Arbitration Association by a sole arbitrator. Judgment upon
the
award rendered by the arbitrator may be entered by any court having
jurisdiction. The law of the State of Illinois (excluding its conflicts-of-law
provisions) shall govern the substantive law of the arbitration, including
the
interpretation, validity and enforcement of the Agreement and all other
claims
included in the Dispute. The site of the arbitration shall be Chicago,
Illinois.
But In-Pipe may file for injunctive relief in any court of appropriate
jurisdiction.
15. Entire
Agreement.
This
Agreement is intended to be the exclusive and final statement of the terms
and
understandings relative to the subject matter hereof, merging herein and
superseding all negotiations and prior written or oral agreements between
the
parties as to the subject matter of this Agreement. There are no promises,
representations or understandings made in connection with this Agreement
or
contemporaneous with the execution of this Agreement, except as set forth
herein
and therein.
16. Mutually
Drafted Agreement.
Each
party
has
had
the opportunity to have this Agreement reviewed by legal counsel and it
is the
product of arms-length negotiations and therefore it shall be interpreted
as
mutually drafted by the parties.
17. Amendment.
No
modification or amendment of this Agreement
shall be
valid unless it is in writing and signed by both of the parties
hereto.
18. Assignment.
This
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the parties hereto and their successors and permitted assigns. No party
hereto may assign this Agreement without the prior written consent of the
other
party.
19. Counterparts.
This
Agreement may be executed in counterparts, each of which shall be deemed
an
original,
and both of which
together
shall constitute one and the same instrument.
20. Notices.
Any
notice or other communication required under this Agreement shall be in
writing
and delivered personally
to the
addressee, faxed to the addressee (and confirmation received), sent by
express
courier to the addressee, or mailed, certified or registered mail, postage
prepaid, and shall be deemed given when so delivered personally, faxed
to the
addressee, or, if sent by express courier, two business days after the
date so
sent, or, if mailed, five business days after the date of mailing, to the
applicable address as follows:
|
If
to In-Pipe:
In-Pipe
Technology Company, L.L.C.
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▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇,
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Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
Attn:
Chief
Executive Officer
With
copy to:
Wildman,
Harrold, ▇▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇,
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Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
Attn:
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|
If
to Exousia:
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▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇ ▇▇▇▇
Attn:
Chief Executive Officer
With
copy to:
____________________
____________________
____________________
Facsimile:
___________
Attn:
_______________
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21. Severability.
Whenever possible, each provision of this Agreement shall be interpreted
in such
manner as to be effective and valid under applicable law, but if any provision
of this Agreement is held to be prohibited by or invalid under applicable
law,
such provision shall be ineffective only to the extent of such prohibition
or
invalidity, without invalidating the remainder of this Agreement.
22. Governing
Law.
The
construction, validity and interpretation of this Agreement shall be governed
by
the internal law, and not the law of conflicts, of the State of
Illinois.
[Signature
Page Follows]
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date
first
written above.
In-Pipe
Technology Company, L.L.C.
By:
//s
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇
▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇.,
President
and Chief Executive Officer
By:
//s
J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
J.
▇▇▇▇▇
▇▇▇▇▇▇▇▇
Chief
Executive Officer