Exhibit 10.2
ALLIANCE AGREEMENT
Between
DYNAMOTIVE TECHNOLOGIES CORPORATION
and
TECNA S.A.
T A B L E O F C O N T E N T S
Page
Part 1 DEFINITIONS AND INTERPRETATION 1
Definitions 1
Interpretation 4
Schedules 5
Part 2 Term 6
Term of Agreement 6
Part 3 Project management committee 6
Project Management Committee 6
Duties of the Project Management Committee 6
Meetings of the Project Management Committee 6
Notices of Project Management Committee Meetings 7
Quorum of the Project Management Committee 7
Decisions of the Project Management Committee 7
Exchange of Information for Project Management Committee 7
Part 4 technical support, CONSULTING, RESEARCH & Personnel 7
Technical Support 7
Personnel 8
Replacement Rights of DynaMotive 8
Additional Personnel 9
Tecna Partners 9
Consulting 9
Research by Tecna 9
Use of Research Information 10
Disclosure of Research Information 10
Disclosure of Research Results 10
Use of the Technology IPR 10
Establishment of Facilities 10
Part 5 Services 11
Services 11
Right of First Refusal-Exclusivity as Provider 11
Turn Key Projects 12
Marketing 12
Fees for Engineering Services 13
Incentives 13
Fees for Services to Licensees 14
Expenses 14
Part 6 INFORMATION, ASSISTANCE AND COOPERATION 14
Provision by DynaMotive of the Technology 14
Provision of Technical Assistance and Information to
DynaMotive 14
Availability of Latest Technology 14
Non-Solicitation of Employees 14
Part 7 LICENSES, TRADEMARKS AND PATENTS 15
License of the Technology 15
Trademark/Brand Use 15
Action by Parties to Protect Intellectual Property from
Infringement 15
Part 8 NON-COMPETITION 15
Non-Competition by Tecna 15
Proceedings 16
Part 9 IntellecTual property & CONFIDENTIALITY 16
Intellectual Property Ownership 16
Retention of Materials 16
Disclosure 16
Assistance 17
Confidentiality Obligations 17
Publicity 17
Treatment of Confidential Information 18
Actions to Protect Confidential Information 18
No Waiver By Virtue of Non-Exercise of Rights 18
Confidentiality Provisions Effective on Effective Date 18
Part 10 WARRANTIES & Limited Liability 18
Warranty 18
Limited Liability 19
Indemnity 19
Part 11 TERMINATION 20
Termination Without Cause 20
Termination for Cause 20
Notice of Fundamental Breach 20
Curing of Fundamental Breach 20
Termination on Failure to Cure Fundamental Breach 21
Termination of Service Schedules 21
No Limitation of Remedies 21
Part 12 DISPUTE RESOLUTION AND APPLICABLE LAW 21
Dispute Resolution 21
Applicable Law 22
Part 13 GENERAL 22
Modifications, Approvals and Consents 22
Further Assurances 23
Entire Agreement 23
Expenses 23
Notices 23
Deemed Receipt 24
Change of Address 24
Force Majeure 24
Time Limits Extended 24
Elimination of Intervening Event 24
Continuation of Intervening Event 24
Enurement 25
Severability 25
Survivability 25
Cooperation 25
Deemed Term of Agreement 25
Time of the Essence 26
Counterparts 26
No Partnership or Unincorporated Joint Venture 26
NEW ALLIANCE AGREEMENT
THIS AGREEMENT is dated for reference May 9, 2001
AMONG:
DYNAMOTIVE TECHNOLOGIES CORPORATION,
a corporation having an office at
▇▇▇-▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
("DynaMotive")
AND:
TECNA S.A., a corporation having an office
at ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ - ▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ C1063ACE
("Tecna")
(DynaMotive and Tecna are collectively
referred to herein as the "Parties" and
individually as a "Party")
WHEREAS:
(A) DynaMotive owns technology for production of a clean fuel
alternative known as "Bio-Oil" through a pyrolysis process
(the "Technology") and wishes to develop and commercially
exploit the Technology;
(B) Tecna is a solution company that provides engineering
consulting and technical support services; and
(C) DynaMotive wishes to engage Tecna to provide engineering
consulting and technical support services to assist in the
development, research and evaluation and commercial
exploitation of the Technology;
NOW THEREFORE THIS AGREEMENT WITNESSES THAT the Parties mutually
covenant and agree as follows:
PART 1
DEFINITIONS AND INTERPRETATION
DEFINITION
1.1 In this Agreement, including the recitals, except as
otherwise expressly provided or unless the context otherwise requires,
"Affiliate" of, or a Person "Affiliated" with, a particular
Person, means a Person that, directly or indirectly,
controls, is under common control with or is controlled by
the specified Person;
"Bio Oil" means the fuel oil produced from biomass using the
Technology;
"Breaching Party" has the meaning ascribed to that term in 11.2;
"Business Day" means a day that is not a Saturday or a Sunday or a
Canadian federal or a British Columbia provincial or Argentinean
federal statutory holiday;
"Canadian Dollar" or "Cdn.$" means a Canadian dollar or the basic
unit of Canadian legal tender commonly used in Canada;
"Confidential Information" means any confidential oral, written or
electronic data and information now or hereafter existing during
the currency of this Agreement, clearly identified as
confidential, relating to the business and management of either
Party, to which access is granted or obtained by the other Party;
"Control" of a corporation, limited liability company, other body
corporate or other entity by a Person only occurs, for the
purposes of this Agreement, if
securities of the corporation, limited liability company,
other body corporate or other entity to which are attached
more than 50% of the votes that may be cast to elect
directors of the corporation, limited liability company,
other body corporate or other entity (or other members of
the governing body of the corporation, limited liability
company, other body corporate or other entity, if it has no
board of directors) or other rights to elect a majority of
directors or such other members are held, other than by way
of security or pledge only, by or for the benefit of that
Person, and
the votes attached to those securities are sufficient, or
such rights are sufficient, if exercised, to elect a
majority of the directors (or other members of the governing
body of the corporation, limited liability company, other
body corporate or other entity, if it has no board of
directors) of the corporation, limited liability company,
other body corporate or other entity;
"DynaMotive Business" means the business of researching,
developing, designing, manufacturing, assembling, installing,
distributing, marketing and commercial exploitation of the
Technology and related technology;
"Effective Date" means the date on which this Agreement is
executed by the parties hereto;
"Encumbrance" means any mortgage, charge, pledge, hypothecation,
lien, easement, right-of-way, encroachment, security interest,
covenant, condition, right of re-entry, right of possession,
lease, license, assignment, option, claim or other title defect,
encumbrance or charge, whether or not registered or registrable
and whether or not consensual or arising by law, statutory or
otherwise;
"Existing Affiliate", at any particular time, means any entity
defined as an affiliate of either Party as at the Effective Date;
"Fundamental Breach" has the meaning ascribed to that term in
11.2;
"GAAP" means, with respect to the determination of any accounting
issue relating to a financial statement or record or any component
thereof for any corporation, limited liability company or body
corporate the generally accepted accounting principles applicable
in Canada;
"Governmental Authority" means, the government of Canada, the
government of a Canadian province or territory and the government
of any other applicable country or state, and each ministry,
department, commission, board, bureau or other agency of, or
municipality, regional district or other local governing body
established by, any such government, or other political
subdivision thereof, and includes any Person exercising executive,
legislative, judicial, regulatory or administrative functions of,
or pertaining to, any such government;
"Improvements" means all updates, modifications, enhancements,
improvements and derivations related to Intellectual Property
Rights or Know-How;
"Intellectual Property Rights" or "IPRs" of a Person means that
Person's rights to all inventions, designs, trade secrets, ideas,
work, technology, innovations, creations, concepts, moral rights,
development drawings, research, analysis, experiments, copyrights,
data, formulas, methods, procedures, processes, systems and
techniques whether or not a registration or record as a patent,
industrial design or similar proprietary right has been obtained
or applied for, including any Improvements thereto;
"Intervening Event" has the meaning ascribed to that term in
13.8;
"Know-How" of a Person means that Person's rights to all
inventions, designs, trade secrets, ideas, work, technology, know-
how, innovations, creations, concepts, moral rights, development
drawings, research, analysis, experiments, copyrights, data,
formulas, methods, procedures, processes, systems and techniques
for which no registration or record as a patent, industrial design
or similar proprietary right has been obtained or applied for, but
does not include trademarks or trade names;
"Liabilities" in respect of a Person means collectively, all
liabilities, indebtedness, capitalized lease obligations,
advances, debts, duties, endorsements, guarantees, obligations,
responsibilities and undertakings of such Person assumed, created,
incurred, or made, or to which such Person is bound or subject,
whether voluntary or involuntary, however arising, whether due or
not due, absolute, inchoate or contingent, liquidated or
unliquidated, determined or undetermined, direct or indirect,
express or implied, and whether in respect of which such Person is
liable individually or jointly with others;
"Non-Breaching Party" has the meaning ascribed to that term in
11.2;
"Notice" has the meaning ascribed to that term in 13.5;
"Notice of Fundamental Breach" has the meaning ascribed to that
term in 11.2;
"Notice of Termination" has the meaning ascribed to that term in
11.5;
"Person" means an individual, corporation, body corporate, firm,
limited liability company, partnership, syndicate, joint venture,
society, association, trust or unincorporated organization or
Governmental Authority or trustee, executor, administrator or
other legal representative;
"Personal Property" means all right, title and interest of a
Person in and to property and assets, other than rights under
contracts or agreements (except Intellectual Property Rights and
rights in respect of Know-How), land and buildings;
"Project Management Committee" means the management committee to
be formed by DynaMotive and Tecna pursuant to 3.1;
"Services" means the technical support, consulting, research,
personnel and other services to be provided by Tecna under this
Agreement;
"Tecna Partner" means external consultant contracted by Tecna;
"Technology" has the meaning ascribed to it in Recital (A) and
includes Improvements and related Intellectual Property Rights;
"Technology License" has the meaning ascribed to it in 7.1;
"Term" has the meaning ascribed to it in 2.1;
"Third Party" in relation to a Party means an individual,
corporation or other entity with which that Party deals at arm's
length and that is not an Affiliate of that Party; and
"United States Dollar" or "Dollar" or "US$" or "$" means a United
States of America dollar or the basic unit of legal tender
commonly used in the United States of America.
INTERPRETATION
1.2 In this Agreement, except as otherwise expressly provided or
unless the context otherwise requires,
"this Agreement" means this New Alliance Agreement, including the
Schedule hereto and the New Reference Deed, as from time to time
supplemented or amended by one or more agreements entered into
pursuant to the applicable provisions hereof;
the headings in this Agreement are inserted for convenience only
and do not form a part of this Agreement and are not intended to
interpret, define or limit the scope, extent or intent of this
Agreement or any provision hereof;
the word "including", when following any general statement or
term, is not to be construed as limiting the general statement or
term to the specific items or matters set forth or to similar
items or matters, but rather as permitting the general statement
or term to refer to all other items or matters that could
reasonably fall within its broadest possible scope;
all accounting terms not otherwise defined herein have the
meanings assigned to them, and all calculations to be made
hereunder are to be made, in accordance with GAAP applied on a
consistent basis;
words, phrases and acronyms not expressly defined herein that have
meaning commonly understood by persons knowledgeable in the
business of process or project engineering will have that meaning
herein;
a reference to a statute includes all regulations made thereunder,
all amendments to the statute or regulations in force from time to
time, and any statute or regulation that supplements or supersedes
such statute or regulations;
a reference to an entity includes any successor to that entity;
words importing the masculine gender include the feminine or
neuter, words in the singular include the plural, words importing
a corporate entity include individuals, and vice versa;
a reference to "approval", "authorization" or "consent" means
written approval, authorization or consent;
a reference to a Part is to a Part of this Agreement or to a Part
of a Schedule hereto and the symbol followed by a number or some
combination of numbers and letters refers to the section,
paragraph, subparagraph, clause or subclause of this Agreement so
designated;
except as otherwise expressly provided, a reference to currency
herein means United States Dollars and all amounts payable
hereunder will be paid in United Stated dollars; and
any currency conversions required under this Agreement will be
converted at the Exchange Rate for the day on which such
conversion is required.
SCHEDULES
1.3 Schedule A - Terms and conditions for Tecna Services attached
hereto is incorporated in this Agreement by reference and is deemed to
form a part hereof: If there is any conflict or inconsistency between
the terms and conditions of the main body of this Agreement and the
terms and conditions of Schedule A, the terms and conditions of the
main body of this Agreement will govern.
PART 2
Term
TERM OF AGREEMENT
2.1 This Agreement will commence on the Effective Date and continue for
three years (the "Term").
2.2 Except as provided in Part 11, this Agreement may not be terminated by
either Party before the first anniversary of the Effective Date. After the
first anniversary of the Effective Date, this Agreement may be terminated by
either Party by providing six months written notice to the other Party. Any
notice of termination given by either Party before the first anniversary of
the Effective Date shall be deemed to have been received on the day following
the anniversary of the Effective Date and shall be effective from that date.
PART 3
PROJECT MANAGEMENT COMMITTEE
PROJECT MANAGEMENT COMMITTEE
3.1 Forthwith after the Effective Date, DynaMotive and Tecna will form a
Project Management Committee. The Project Management Committee will be
comprised of three representatives of DynaMotive and two representatives from
Tecna.
DUTIES OF THE PROJECT MANAGEMENT COMMITTEE
3.2 The Project Management Committee will provide advice and assistance to
DynaMotive and Tecna and in particular, will
co-ordinate the development of the Technology;
propose solutions for issues that may arise among any of the parties; and
exchange cost and technical information related to the Technology,
subject to the confidentiality provisions contained herein.
MEETING OF THE PROJECT MANAGEMENT COMMITTEE
3.3 The Project Management Committee will meet, in person or by
teleconference or video conference, no less frequently than twice a month.
NOTICES OF THE PROJECT MANAGEMENT COMMITTEE
3.4 At least 7 days' notice of a meeting of the Project Management Committee
given by any member thereof, specifying the purpose, time, date and location
of such meeting in Vancouver, Canada, or such other location agreed to among
the Parties represented on the Project Management Committee, will be deemed to
be sufficient notice of such meeting.
QUORUM OF THE PROJECT MANAGEMENT COMMITTEE
3.5 Participation by a majority of the members of the Project Management
Committee, including at least two representatives of DynaMotive on the Project
Management Committee, will constitute a quorum at any regular meeting of the
Project Management Committee, and any action to be taken by vote of the
Project Management Committee will be authorized by vote of not less than a
majority of those participants present at any such meeting at which a quorum
is present and continuing, provided that such majority includes at least two
representatives of DynaMotive on the Project Management Committee. The
Project Management Committee may also act by the written consent of all
members then in office.
DECISIONS OF THE PROJECT MANAGEMENT COMMITTEE
3.6 The Parties will be bound by all decisions of the Project Management
Committee that are reached in accordance with this Part 3.
EXCHANGE OF INFORMATION FOR PROJECT MANAGEMENT COMMITTEE
3.7 As long as it is entitled to be represented on the Project Management
Committee, DynaMotive and Tecna will, subject to the confidentiality
requirements of each such Party, provide to the Project Management Committee
access to its relevant technical information, including Intellectual Property
Rights and Know-How, in order to ensure the co-ordination and optimization of
the Technology; provided, however that such access will not constitute a
license or any other right of any of any Party to use and exploit the
Intellectual Property Rights or Know-How of the other Party.
PART 4
TECHNICAL SUPPORT, CONSULTING, RESEARCH & PERSONNEL
TECHNICAL SUPPORT
4.1 Tecna will provide technical support, expertise, assistance and advice to
DynaMotive related to all aspects of the Technology including:
technological development;
formulation of development strategies;
technical planning;
error identification and correction; and
marketing.
4.2 DynaMotive will pay Tecna for the Services the sum of $100,000 per year
during the Term of this Agreement as follows:
(a) DynaMotive will pay Tecna in common stock 30 days from the
Effective Date at the price $.80 per share for the first year of the
Term of this Agreement up to the amount of $100,000;
(b) DynaMotive will pay Tecna in common stock 30 days from the first
anniversary of the Effective Date at the price equal to the simple
average of the closing price as quoted on the OTC Bulletin Board or
any other stock exchange on which DynaMotive stock is primarily
trading at such time, for the 20 days preceding the first anniversary
of the Agreement for the second year of the Term of this Agreement up
to the amount of $100,000;
(c)either Party may request that payment for the third year of the Term
shall be made in common stock of DynaMotive then DynaMotive will pay
Tecna in common stock 30 days from the second anniversary of the
Effective Date at the price equal to the simple average of the closing
price as quoted on the OTC Bulletin Board or any other stock exchange
on which DynaMotive stock is primarily trading at such time, for the 20
days preceding the second anniversary of the Agreement for the third
year of the Term of this Agreement up to the amount of $100,000; and
(d)notwithstanding the foregoing, if a Party requests the payment of
fees in cash in the third year of the Term then the payment of fees by
DynaMotive to Tecna shall be $100,000 in cash for the third year of the
Term of this Agreement.
PERSONNEL
4.3 Upon execution of this Agreement, Tecna will appoint one employee who is
a suitably qualified and experienced engineer and shall be available 90% of
their normal working hours to manage DynaMotive's account.
REPLACEMENT RIGHTS OF DYNAMOTIVE
4.4 DynaMotive will have the right to have replaced, the person appointed
pursuant to 4.3 if, in DynaMotive's not unreasonable determination, such
person is not performing satisfactorily. DynaMotive will provide specific
written reasons for its determination. Upon receipt of such reasons, Tecna
will use commercially reasonable effort to replace such appointee with an
appointee whose qualifications and experience as an engineer are acceptable to
DynaMotive, acting reasonably. Tecna will perform the replacement within a
reasonable amount of time from receipt of written reasons from DynaMotive.
ADDITIONAL PERSONNEL
4.5 Tecna will, at DynaMotive's request, appoint additional employees who are
suitably qualified and experienced to dedicate their normal working hours to
the management of all aspects of the DynaMotive account at DynaMotive's
expense as per Schedule A.
TECNA PARTNERS
4.6 Tecna may, with DynaMotive's consent in writing, which consent may be
withheld for any reason, solicit the strategic advice of Tecna Partners,
subject to any Tecna Partner entering into a confidentiality agreement on
terms similar to those contained herein prior to the disclosure of any
information related to DynaMotive, the Technology or Bio Oil, by Tecna to the
Tecna Partner.
CONSULTING
4.7 Tecna will provide ongoing continuous consulting services to DynaMotive
in the development of the Technology including:
conducting studies to evaluate the potential for improvements in the
efficacy, potency, cleanliness and applications of the Technology;
keeping proper records and prepare appropriate documentation to
permit a review of the work and evaluation as to the patentability
and validity of the results of any experimentation, research and
development; and
providing regular reports as to the nature and results of its
activities.
4.8 Tecna agrees that any study, research, experimentation or development
shall be performed in accordance with agreed upon protocols and all applicable
laws.
4.9 DynaMotive will have the right, but not the obligation, to monitor in
conjunction with Tecna, the activities and goals towards which Tecna's
activities should be directed in relation to the study, research,
experimentation and development of the Technology, as agreed upon by the
Project Management Committee.
4.10 Tecna will ensure the safe handling and storage of all toxic or
dangerous materials related to the study, research, experimentation and
development of the Technology.
4.11 Tecna will provide recommendations on a regular basis as to the
direction for the study, research, experimentation and development of the
Technology, pursuant to the terms and conditions of this Agreement.
RESEARCH BY TECNA
4.12 Tecna will have the right to conduct research pursuant to its technical
support obligations and consulting obligations with respect to the Technology
and pursuant to the Technology License, provided that
DynaMotive will be provided with full and complete access to all
technical information relating to the Technology; and
Tecna will not enter into agreements or arrangements with Third Parties
or Tecna Partners for the conduct of any study, research, evaluation,
etc. without the express written consent of DynaMotive, which consent
may be given or withheld in DynaMotive's sole discretion, and provided
that DynaMotive will have all the rights to any Intellectual Property
Rights and Know-How developed under such agreements or arrangements as
it would have if such research had been conducted on its behalf by Tecna
and at no additional cost than if such research had been so conducted,
and DynaMotive shall retain all Intellectual Property Rights in and to,
the Technology and any Improvements or information or results arising
therefrom. Any Third Party or Tecna partner will enter into a
confidentiality and non-disclosure agreement on similar terms and
conditions as contained herein prior to the disclosure of any
confidential information by Tecna.
USE OF RESEARCH INFORMATION
4.13 Tecna will have no right to use the information derived from its study
or research but only for such further research related to the Technology.
DISCLOSURE OF RESEARCH INFORMATION
4.14 Tecna will only disclose any information, derived from its research of
the Technology, to DynaMotive or any Third Party as DynaMotive may direct from
time to time in writing.
DISCLOSURE OF RESEARCH RESULTS
4.15 Tecna will promptly and fully disclose only to DynaMotive the results of
its research conducted including any Intellectual Property Rights or Know-How
developed in the course of any research, and DynaMotive will acquire all
Intellectual Property Rights and obtain the rights to any Know-How relating to
the Technology, including any Improvements to the Technology.
USE OF THE TECHNOLOGY IPR
4.16 In order to conduct its research, Tecna may use the Technology IPR's and
Know-How, but only, subject to the rights obtained by or the licenses granted
to Tecna under this Agreement, for such purpose.
ESTABLISHMENT OF FACILITIES
4.17 Tecna will perform its obligations under this Agreement at location to be
mutually agreed by both parties. Tecna will provide reasonable access to any
facility, site or location to DynaMotive wherein Tecna performs any of its
obligations or services under this Agreement for the purpose of ensuring
Tecna's compliance with the terms and conditions contained herein.
PART 5
SERVICES
SERVICES
5.1 Tecna will provide the Services to DynaMotive and licensees of Technology
pursuant to the terms and conditions set out in Schedule A.
RIGHT OF FIRST REFUSAL-EXCLUSIVIITY AS PROVIDER
5.2 The parties acknowledge their intent to enter into a preferred commercial
relationship whereby certain exclusivity rights and a right of first refusal
be provided to Tecna to supply certain services. Specific terms and conditions
will be agreed upon by the parties within 180 days of this agreement.
During the180 days from the date of this Agreement, Tecna and DynaMotive
will work cooperatively to establish those services that will be provided on
an exclusive basis to DynaMotive and those services that will be provided on a
right of first refusal to Tecna. The Parties agree that within the 180 day
period, Tecna will have a right of first refusal to project work required by
DynaMotive or Licensors of DynaMotive.
Tecna and DynaMotive may consider to establish a special purpose company
to provide the above services. Fees under this heading are anticipated to
reasonably reflect Tecna's standard fees for similar services in similar
circumstances.
Services envisaged to be provided under exclusive arrangement:
(a) Technical development.
(b) Conceptual and basic engineering.
(c) Detailed engineering;
(d) Control system services; conceptual engineering;
(e) Engineering packages for licensees;
(f) Licensees technical support during the project;
(g) Commissioning and start-up assistance;
(h) Post-sale technical support;
Services envisaged to be provided under ritght of first refusal:
(a) Construction of BioOil Units; and
(b) Project management services.
CONDITIONS TO RIGHT OF FIRST REFUSAL
5.3 The right of first refusal set forth in 5.2 will apply only with
respect:
(a) to services that Tecna is reasonably competent to provide,
(b) in circumstances where Tecna has the required resources ready and
available to ensure the provision of the required services in a timely,
efficient and effective manner, as when and where required by DynaMotive,
and
(c)in circumstances where DynaMotive has the authority with respect to
the particular project to select Tecna as the provider of the services in
question.
Following receipt of notice from DynaMotive setting forth the terms and
conditions and other details of the services to which the right of first
refusal applies, Tecna will confirm in writing to DynaMotive within 10 days
whether it is willing to provide those services upon the terms and conditions
set forth in the notice from DynaMotive. If Tecna fails to confirm its
acceptance as provided herein, DynaMotive will be free to engage a third party
to provide the services upon those terms and conditions. If DynaMotive can
demonstrate reasonably that Tecna's price is 12.5% or more higher, or that its
terms and conditions of service are materially less favourable to DynaMotive
than those of other qualified service providers, Tecna may either adjust it
price or terms and conditions as required to match the other service provider
or decline to provide those services. If during any 12 month period Tecna
declines to provide services to which the right of first refusal applies more
than 30% of the time within any geographic area, Tecna's right to be the
exclusive provider of services in that area under the right of first refusal
will be cancelled. For the purposes of this ▇.▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇, the European Union and Latin America are each deemed to be a
geographic area and, in all other cases, a country will be deemed to be a
geographic area.
TURN KEY PROJECTS
5.4 DynaMotive will make commercially reasonable efforts to recommend Tecna
to Third Parties to be the provider of services similar to the Services under
this Agreement related to EPC and EPCM work.
5.5 During the execution of the UK's Department of Trade and Industry (DTI)
project in the UK, Tecna will act as owner-engineers on behalf of DynaMotive.
MARKETING
5.6 Tecna will assist in all aspects of marketing, promoting and selling the
Technology in all relevant and applicable markets, as agreed upon by the
parties.
FEES FOR ENGINEERING SERVICES
5.7 In addition to the Services to be provided herein by Tecna, DynaMotive
may, by separate written purchase order, request that Tecna provide additional
engineering services (the "Engineering Services"). DynaMotive will pay Tecna
for the Engineering Services pursuant to the terms of Schedule A.
5.8 Tecna will invoice DynaMotive for the Engineering Services pursuant to
the terms below, paid in cash, common shares and the issuance of non-
transferable warrants as follows:
The parties will determine an annual budget for engineering services by
June 1 of each year and the fair market value of such services shall be
paid for on the basis of 50% cash, and 50% in common shares valued
according to 4.2(a), (b) and (c), plus the allotment of warrants equal
in number to one-half the number of common shares which warrants shall
be non-transferable, exercisable at $1.50 per common share and have a 3-
year term from the date of issuance. The Warrant exercise price (after
the 2001/2002 budget) shall be reset annually at a premium to the price
of the shares set under 4.2(b) and (c). Shares and warrants shall be
issued within 10 days of each calendar quarter commencing June 30, 2001.
For the year commencing June 1, 2001 the agreed services to be provided
by Tecna shall have an estimated fair market value of $480,000 plus the
guaranteed amount of $100,000 under 4.2 for an aggregate of $580,000 at
standard Tecna billing rates. This amount shall be paid for as follows:
Payable
-----------------------------------
Section Amount Cash Shares Warrants
-----------------------------------------------------------
4.2 $100,000 125,000 62,500
5.7 $480,000 $240,000 300,000 150,000
For purposes hereof Tecna shall invoice monthly providing reasonable
details of activities, results, and responsible personnel time recorded.
DynaMotive shall pay cash portion monthly and shares and warrants
quarterly by October 10, January 10, April 10 and July 10 of each year
for the previous quarter.
INCENTIVES
5.9 Technology improvements / Efficiency gains. Both parties agree to
negotiate in good faith progress milestones and incentive remuneration based
on achievements of milestones. The milestones program to be agreed between
the parties upon completion of the planned commissioning run for the
DynaMotive's existing 10 TPD plant.
FEES FOR SERVICES TO LICENSEES
5.10 Regardless of the provisions of 5.7, if Tecna provides services to
Third Parties on behalf of DynaMotive, Tecna and DynaMotive will negotiate the
fees for such services based on the nature of the services and the scope and
value of the project in question. The negotiated fees are anticipated to
reasonably reflect Tecna's standard fees for similar services in similar
circumstances.
EXPENSES
5.11 Reasonable travel, living and other expenses will be reimbursed to Tecna
by DynaMotive at cost within 30 days of receipt by DynaMotive of an invoice
for such expenses together with appropriate supporting invoices or other
verification acceptable to DynaMotive acting reasonably.
PART 6
INFORMATION, ASSISTANCE AND COOPERATION
PROVISION BY DYNAMOTIVE OF THE TECHNOLOGY
6.1 DynaMotive will provide Tecna with reasonable access to information
related to the Technology subject to such restrictions, as DynaMotive may
consider appropriate to safeguard confidentiality.
PROVISION OF TECHNICAL ASSISTANCE AND INFORMATION TO DYNAMOTIVE
6.2 Tecna will provide
DynaMotive with reasonable access to information to all information in
Tecna's control or possession related to the Technology; and
DynaMotive with technical assistance and information in respect of the
development of manufacturing processes and high volume manufacturing of
Bio Oil and testing methodology relevant or useful for the Technology.
AVAILABILITY OF LATEST TECHNOLOGY
6.3 DynaMotive will make available to Tecna the Technology embodying the
latest technology available.
NON-SOLICITATION OF EMPLOYEES
6.4 Other than any transfers and secondments of employees contemplated in
this Agreement, no Party, will from the date of execution of this Agreement
and until the expiry of one year after the termination or expiration of this
Agreement, solicit for employment or employ any Person who is or was an
employee of the other Party or induce any such employee to leave his or her
employment with such other Party.
PART 7
LICENSES, TRADEMARKS AND PATENTS
LICENSE OF THE TECHNOLOGY
7.1 DynaMotive hereby grants a non-exclusive, royalty free license to Tecna
for the sole purpose of studying, evaluating, experimenting and researching to
discover and evaluate the qualities, properties and benefits of the Technology
and improve the Technology efficacy, potency and cleanliness in its current
and prospective uses; and to develop further new uses for the Technology (the
"Technology License") subject to the terms and conditions of this Agreement.
7.2 The Technology License shall be co-terminus with the expiration or
termination of this Agreement.
TRADEMARK/BRAND USE
7.3 Nothing contained in this Agreement provides a licence to use any of the
other Party's trademarks, tradenames or name in any manner whatsoever.
ACTION BY PARTIES TO PROTECT INTELLECTUAL PROPERTY FROM INFRINGEMENT
7.4 If Tecna becomes aware of any infringement of DynaMotive's Intellectual
Property Rights by a Third Party, Tecna will immediately notify DynaMotive of
such infringement and provide all reasonable assistance to DynaMotive in the
prosecution or defence of DynaMotive's Intellectual Property Rights.
PART 8
NON-COMPETITION
NON-COMPETITION BY TECNA
8.1 Tecna will not directly or indirectly, in sole proprietorship, in any
partnership or joint venture or as an owner of more than 10% of the voting
shares in the capital of any class of a corporation or in any other manner,
compete with DynaMotive in the research, development, production,
distribution, sale or service of the Technology during the Term of this
Agreement and, for a period of 10 years following the termination or
expiration of this Agreement.
PROCEEDINGS
8.2 Each Party will ensure that it does not, at any time, take any step or
proceeding to have any of the provisions contained in this Agreement declared
invalid or unenforceable or use any defence based on a claim of invalidity or
unenforceability of any provision contained in this Agreement.
PART 9
INTELLECTUAL PROPERTY & CONFIDENTIALITY
INTELLECTUAL PROPERTY OWNERSHIP
9.1 Notwithstanding anything to the contrary in this Agreement, all
intellectual property and improvements, enhancements and modifications
thereto; materials, documents, data, information, know-how, methodologies,
techniques, opinions and suggestions of every kind and description supplied to
Tecna by or on behalf of DynaMotive or prepared or developed by Tecna for
improvements of the Technology, pursuant to this Agreement, shall be the sole
and exclusive property of DynaMotive.
9.2 DynaMotive shall have the sole right to make whatever use it deems
desirable of any of the same; provided that Tecna may retain copies of such
materials if and to the extent required by applicable laws.
RETENTION OF MATERIALS
9.3 Unless otherwise required by law or the terms of this Agreement, all such
DynaMotive property which Tecna shall have in its possession shall be
maintained in a safe and secure place by Tecna for a period of not less than
three years from the date of receipt thereof and shall be organized in such
manner that it will be ready for immediate reference.
9.4 After three years or such longer period as may be required by applicable
laws, Tecna will dispose of or deliver such property to DynaMotive in
accordance with DynaMotive's written instructions.
9.5 If DynaMotive fails to give those instructions, Tecna will notify
DynaMotive in writing of that fact and, if said instructions are still not
forthcoming within 30 days of such notification then Tecna may destroy such
property as it determines.
DISCLOSURE
9.6 Tecna will disclose promptly and fully to DynaMotive or its nominee any
and all patentable inventions, discoveries, Know-How, methodologies,
techniques and improvements learned, conceived or made by or on behalf of
Tecna or its employees or agents relating to the Technology.
ASSISTANCE
9.7 Whenever requested to do so by DynaMotive, Tecna will execute (and will
cause each and every one of its employees and agents to execute) any and all
applications, assignments or other instruments and give testimony which
DynaMotive shall deem necessary to apply for any obtain letters of patent,
copyright or other similar protections available in the United States, Canada
or any other country or to otherwise protect DynaMotive's interest therein
provided that DynaMotive will reasonably compensate Tecna for any time devoted
to said activities after the term hereof and to reimburse it for expenses
incurred in connection therewith.
9.8 Tecna will include in every agreement with any of its investigators,
scientists, employees, officers or agents a provision requiring such persons
to acknowledge DynaMotive's exclusive ownership of all intellectual property
rights related to the Technology and to assign to DynaMotive, on terms
substantially similar to this section, all patentable inventions, discoveries,
improvements, know-how, methodologies, techniques and other intellectual
property relating to the Technology learned, conceived or made by or on behalf
of such persons.
CONFIDENTIALITY OBLIGATIONS
9.9 During the Term and for a period of five years following its expiration
or termination for any reason, each Party will, and will cause its directors,
officers, employees and agents to, keep all Confidential Information disclosed
to any of them by the other Party confidential and will not use or disclose
such Confidential Information to any Person except to the extent
such use or disclosure is expressly permitted or contemplated pursuant
to this Agreement or any agreement contemplated herein;
such use or disclosure is strictly necessary to enable the recipient of
such Confidential Information to exercise its rights and perform its
obligations under this Agreement or any agreement contemplated in this
Agreement;
such use or disclosure is required by applicable law;
such information is in the public domain other than as a result of a
breach of this Agreement or any agreement contemplated in this
Agreement; or
such use or disclosure is required pursuant to a final order or
judgement of a court of competent jurisdiction and in such case the
Parties will cooperate with one another to obtain an appropriate
protective order or other reliable assurance that the confidentiality
of such Confidential Information will be maintained.
PUBLICITY
9.10 Each Party will not, and will ensure that its Affiliates, directors,
officers, employees and agents do not, release any publicity or advertising
relating to this Agreement, the agreements and instruments entered into
pursuant to this Agreement or the transactions contemplated hereunder and
thereunder to any Third Party, including any news media organization, without
the prior consent of the other Party.
TREATMENT OF CONFIDENTIAL INFORMATION
9.11 Each Party acknowledges that the Confidential Information of the other
Party consists in part of information vital to the business and commercial
prospects of the other Party and that such information is the special,
valuable and unique property of the other Party and would not normally be
disclosed to it. Accordingly, each Party agrees to act as a fiduciary of the
other Party and to use commercially reasonable efforts to protect Confidential
Information and keep it confidential using a standard of care no less than the
degree of care that such Party would be reasonably expected to employ for its
own Confidential Information.
ACTIONS TO PROTECT CONFIDENTIAL INFORMATION
9.12 Without prejudice to any other rights or remedies, in the event of
litigation relating to a breach of the provisions of this Part 9, if a court
of competent jurisdiction determines in a final, non-appealable order that any
of such provisions has been breached, the Party in breach will indemnify and
hold harmless the other Party for its costs and expenses (including reasonable
legal fees and expenses) incurred in connection with all such litigation.
NO WAIVER BY VIRTUE OF NON-EXERCISE OF RIGHTS
9.13 No failure or delay by either Party or either Party's respective
representatives in exercising any right, power or privilege under this Part 9
will operate as a waiver thereof nor will any single or partial exercise
thereof preclude any other or further exercise of any right, power or
privilege hereunder. No provision of this Part 9 may be waived or amended nor
any consent given except in writing signed by a duly authorized officer of
each Party so waiving or consenting.
CONFIDENTIALITY PROVISIONS EFFECTIVE ON EFFECTIVE DATE
9.14 The provisions contained in this Part 9 will take effect on the
Effective Date, at which time they will supersede the terms and conditions
contained in any previous agreement or undertaking between DynaMotive and
Tecna.
PART 10
WARRANTIES & LIMITED LIABILITY
WARRANTY
10.1 Except as expressly stated in this Agreement, DynaMotive makes no
warranty, representation, condition, or covenant of any kind, express, or
implied, oral or written, statutory or otherwise, all implied warranties,
representations, conditions or covenants of merchantable quality or fitness
for a particular purpose or warranties arising from a course of dealing or
usage of trade or that any product to be developed as part of the agreement
will become functional or does not infringe upon the Intellectual Property
Rights of any Third Party are hereby expressly waived and disclaimed.
LIMITED LIABILITY
10.2 DynaMotive will not be liable to Tecna with respect to anything done or
omitted to be done, in accordance with the terms of this Agreement or
instructions properly received pursuant hereto, if done in good faith and with
reasonable care and without wilful or wanton misconduct on DynaMotive's part.
10.3 DynaMotive will not be liable to Tecna for any act or omission that
results in any claim, damage or legal action whatsoever for any act or
omission of Tecna in performing any of obligations required of Tecna under
this Agreement
INDEMNITY
10.4 Tecna will indemnify and hold DynaMotive harmless against any loss,
claim, damage, judgement, liability or expense (including reasonable legal
fees and expenses on a solicitor and his own client basis) resulting from
direct act or omission of Tecna in connection with Tecna's performance or
breach of its obligations under this Agreement.
10.5 DynaMotive will indemnify and hold Tecna harmless against any loss,
claim, damage, judgement, liability or expense (including reasonable legal
fees and expenses on a solicitor and his own client basis) resulting from
direct act or omission of DynaMotive in connection with DynaMotive's
performance or breach of its obligations under this Agreement.
10.6 Notwithstanding any provision to the contrary contained in this
Agreement, neither of the parties shall be responsible for losses or
consequential, indirect or special damages of any kind that arise from or are
in any way related to the performance or breach of this Agreement except for a
breach of an obligation under Part 9.
10.7 Except for a breach of an obligation under Part 9, the total liquidated
damages against one Party by the other arising for any liabilities for
failures to comply with obligations under this Agreement will be limits to an
amount equal to 30% of the revenue generated by the item in question.
10.8 On a case by case basis, the parties will judge if DynaMotive requires
additional insurance coverage for contingencies. If, such additional coverage
is available on commercially reasonable terms and is recommended by Tecna, but
DynaMotive decides not to obtain that coverage, Tecna will be released of any
responsibility arising from such decision.
PART 11
TERMINATION
TERMINATION WITHOUT CAUSE
11.1 Any Party may terminate this Agreement without cause by giving, at any
time after the first anniversary of the Effective Date, at least six months'
notice in writing of such termination.
TERMINATION FOR CAUSE
11.2 Subject to 11.3, 11.4 and 11.5, if a Party (a "Breaching Party")
directly or indirectly
commits a material breach of any provision of Part 9;
commits a material infringement of any interest of another Party in
Intellectual Property Rights or Know-How; and
commits a material default in observing or performing any other material
covenant, agreement or condition of this Agreement on its part to be
observed;
(each a "Fundamental Breach") the result of which is that it would be
unconscionable for the other Party (the "Non-Breaching Party") to be
obligated to continue to observe its covenants and obligations under
this Agreement. The Non-Breaching Party may terminate this Agreement
for cause.
NOTICE OF FUNDAMENTAL BREACH
11.3 A Party that determines that a Fundamental Breach has occurred may give
written notice of such Fundamental Breach (the "Notice of Fundamental Breach")
to the Breaching Party and a copy of such notice to each other Party, which
notice will set out in reasonable detail the nature of the Fundamental Breach
and will expressly refer to this Part 11.
CURING OF FUNDAMENTAL BREACH
11.4 A Breaching Party that receives a Notice of Fundamental Breach will have
such reasonable period of time as is necessary to cure such breach, but in any
event no more than 30 days from the date of receipt by it of a Notice of
Fundamental Breach, and if such Breaching Party cures the Fundamental Breach
which is the subject of the Notice of Fundamental Breach within such period,
or the Party or Parties that gave notice of such Fundamental Breach under
12.3 waive such Fundamental Breach within such period, the rights of the Non-
Breaching Parties under this Part 11 in respect of such Fundamental Breach
will terminate.
Termination on Failure to Cure Fundamental Breach
11.5 If a Breaching Party does not cure a Fundamental Breach for which it has
received a Notice of Fundamental Breach within the period of time prescribed
in 11.4 and the Fundamental Breach is not waived in accordance with 11.4,
the Non-Breaching Parties in respect of such Fundamental Breach may, by mutual
agreement and by notice (the "Notice of Termination") to the Breaching Party,
terminate this Agreement effective the date of the Notice of Termination.
Unless so terminated, this Agreement will continue in full force and effect
except as otherwise expressly provided herein and, except as otherwise agreed
by the Non-Breaching Parties, the New Alliance will be deemed to continue
between the Non-Breaching Parties.
TERMINATION OF SERVICE SCHEDULES
11.6 A Party may terminate a Service Schedule pursuant to the terms and
conditions of the Service Schedule without terminating this Agreement.
NO LIMITATION OF REMEDIES
11.7 Nothing in this Part 11 is intended to preclude or limit in any way any
Party's right to pursue any other remedy it may have against another Party, in
law or in equity, in respect of a Fundamental Breach.
PART 12
DISPUTE RESOLUTION AND APPLICABLE LAW
DISPUTE RESOLUTION
12.1 Any dispute between the parties in connection with the Agreement
will first be attempted to be resolved by the parties through good faith
negotiations and in connection therewith, either Party may request in
writing that the other Party meet and commence such negotiations within
a reasonable period of time (in no event later than seven days) after
such request; if within seven days after commencement of negotiations,
the parties cannot come to agreement, the parties will attempt to
resolve the dispute by mediated negotiation and will use best efforts to
agree on the choice of mediator within seven days of a request for
mediation by one Party to the other;
if the matter cannot be resolved by mediation within 14 days after the
appointment of a mediator, or if the parties cannot agree on a mediator
within seven days after a request of a Party to appoint a mediator,
either Party may refer the matter to arbitration in accordance with the
provisions set out below;
any dispute between the parties which cannot be settled by negotiation
or mediation will be determined by arbitration in accordance with the
COMMERCIAL ARBITRATION ACT (British Columbia) and arbitration will be
the exclusive method for final resolution of such dispute;
there will be a single arbitrator who will be disinterested in the
dispute or controversy and will be impartial with respect to all parties
hereto. If the parties cannot agree on an arbitrator within seven days
after the dispute going to arbitration, the appointment will be
according to the COMMERCIAL ARBITRATION ACT (British Columbia);
the determination of the arbitrator will be final and binding on the
parties;
each Party will bear its own costs in any such arbitration, provided
that, if the arbitrator finds that any Party acted unreasonably he may,
in his discretion, award costs against such Party;
the arbitrator will have the discretionary authority to grant injunctive
relief and specific performance as may be requested by a Party;
any order of an arbitrator may be entered with a Court of competent
jurisdiction for the purposes of enforcement;
the place of arbitration will be Vancouver, British Columbia; and
the arbitrator will give effect insofar as possible to the desire of the
parties hereto that the dispute or controversy be resolved in accordance
with good commercial practice, and the arbitrator will decide such
dispute in accordance with the laws of British Columbia.
APPLICABLE LAW
12.2 This Agreement is and will be deemed to have been made in British
Columbia and the construction, validity and performance of this Agreement will
be governed in all respects by the laws of the Province of British Columbia.
The parties hereto irrevocably attorn to the jurisdiction of the courts of the
Province of British Columbia in regard to any claim or action arising out of
this Agreement.
PART 13
GENERAL
MODIFICATIONS, APPROVALS, AND CONSENTS
13.1 No amendment, modification, supplement, termination or waiver of any
provision of this Agreement will be effective unless in writing signed by each
of the Parties having rights under this Agreement at that time and then only
in the specific instance and for the specific purpose given.
FURTHER ASSURANCES
13.2 The Parties will execute such further assurances and other documents and
instruments and do such further and other things as may be necessary to
implement and carry out the intent of this Agreement.
ENTIRE AGREEMENT
13.3 The provisions in this Agreement constitute the entire agreement between
the Parties in respect of the matters agreed to or expressly contemplated
herein and supersede all previous expectations, understandings,
communications, representations and agreements, including the MOU, whether
verbal or written among such Parties.
EXPENSES
13.4 Except as otherwise expressly stated in this Agreement, each Party will
bear its own costs and expenses incurred in connection with the preparation,
execution and delivery of this Agreement.
NOTICES
13.5 Every notice, request, demand, direction or other communication (a
"Notice") required or permitted to be given pursuant to this Agreement will be
deemed to be well and sufficiently given if in writing, in the English
language, and delivered by hand (including recognized overnight courier
service) in each case addressed as follows:
if to DynaMotive at:
▇▇▇ -▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
with a copy to
Lang ▇▇▇▇▇▇▇▇
1500 - ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
if to Tecna at:
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ - ▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ C1063ACE
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
or to such other address as is specified by the particular Party by
Notice to the others.
DEEMED RECEIPT
13.6 Any Notice delivered as aforesaid will be deemed conclusively to have
been effectively given and received on the day Notice was delivered as
aforesaid if it was delivered on a day that was a Business Day or on the next
day that is a Business Day if it was delivered on a day that was not a
Business Day.
CHANGE OF ADDRESS
13.7 A Party may at any time, by Notice to the others, change its address to
some no less convenient address and will so change its address whenever its
address ceases to be suitable for delivery by hand.
FORCE MAJEURE
13.8 No Party will be liable for its failure to perform any of its
obligations under this Agreement due to a cause beyond its control including
acts of God, fire, flood, explosions, strikes, lockouts or other industrial
disturbances, laws, rules and regulations or orders of any duly constituted
governmental authority (each an "Intervening Event").
TIME LIMITS EXTENDED
13.9 Subject to 13.11, all time limits imposed by this Agreement will be
extended by a period equivalent to the period of delay resulting from an
Intervening Event.
ELIMINATION OF INTERVENING EVENT
13.10 A Party relying on the provisions of 13.8 will take all reasonable
steps to eliminate any Intervening Event and, if possible, will perform its
obligations under this Agreement as far as practical, but nothing herein will
require the Party to question or test the validity of any law, rule,
regulation or order of any governmental authority or to complete its
obligations if an Intervening Event renders completion impossible.
CONTINUATION OF INTERVENING EVENT
13.11 If an Intervening Event continues for more than 180 days and materially
adversely affects the ability of a Party to perform its obligations hereunder,
the Parties will use their best efforts to adapt the requirements of this
Agreement and each other agreement contemplated in this Agreement in a manner
that achieves to the greatest extent possible the economic, legal and
commercial objectives of such Parties as evidenced in this Agreement and the
agreements contemplated in this Agreement and, if they do not agree on the
manner in which such requirements should be adopted within a further 90 days,
any such Party may require the matter to be determined in accordance with Part
12.
ENUREMENT
13.12 This Agreement will enure to the benefit of and be binding upon the
Parties and their respective successors and permitted assigns.
SEVERABILITY
13.13 If any provision contained in this Agreement is found by any court,
arbitrator or Governmental Authority, for any reason, to be invalid, illegal
or unenforceable in any respect in any jurisdiction,
the validity, legality and enforceability of such provision will not in
any way be affected or impaired thereby in any other jurisdiction and
the validity, legality and enforceability of the remaining provisions
contained herein will not in any way be affected or impaired thereby,
unless in either case as a result of such determination this Agreement
would fail in its essential purpose; and
the Parties will use their best efforts to substitute for any provision
that is invalid, illegal or unenforceable in any jurisdiction a valid
and enforceable provision which achieves to the greatest extent possible
the economic, legal and commercial objectives of such invalid, illegal
or unenforceable provision and of this Agreement and, failing the
agreement of the Parties on such a substitution within 30 days after the
finding of the court, arbitrator or Governmental Authority any Party may
refer the matter for dispute resolution under Part 12.
SURVIVABILITY
13.14 Unless otherwise expressly provided in this Agreement, those provisions
which by their nature are intended to survive the expiration or termination of
this Agreement will survive and remain in effect for a period of three years
following the expiration or termination of this Agreement. The provisions of
Part 8 (Non-Competition) shall survive for a period of 10 years, and the
provisions of 9.9 (Confidentiality Obligations) shall survive for a period of
five years, following the expiration or termination of this Agreement. The
provisions of 9.1 shall continue in effect indefinately regardless of the
expiration or termination of this Agreement
COOPERATION
13.15 The Parties will cooperate to apply for and obtain all necessary
exemptions and rulings from applicable Governmental Authorities.
DEEMED TERM OF AGREEMENT
13.16 If the length of the term of this Agreement is found by any court,
arbitrator or Governmental Authority to be invalid, illegal or unenforceable,
the term of this Agreement will be deemed to be replaced by a term having the
maximum length of time which is not invalid, illegal or unenforceable
according to such court, arbitrator or Governmental Authority.
TIME OF THE ESSENCE
13.17 Time is of the essence in the performance of each obligation under
this Agreement.
COUNTERPARTS
13.18 This Agreement may be executed in any number of notarial authentic
copies, each of which will together, for all purposes, constitute one and the
same instrument, binding on the Parties, and each of which will together be
deemed to be an original.
NO PARTNERSHIP OR UNINCORPORATED JOINT VENTURE
13.19 The Parties expressly disclaim any intention to create or form a
partnership or unincorporated joint venture among any of the Parties or any of
the other corporations referred to in this Agreement.
IN WITNESS WHEREOF this Agreement has been executed by the Parties on the day
and year first above written.
DYNAMOTIVE TECHNOLOGIES CORPORATION
Per: /signature/
Authorized Signatory
Per: /signature/
Authorized Signatory
TECNA S.A.
Per: /signature/
Authorized Signatory
Per: /signature/
Authorized Signatory