EXCLUSIVE CONSULTING AGREEMENT
BETWEEN
ECO SOIL SYSTEMS, INC. AND
ENCORE TECHNOLOGIES, INC.
This Agreement is entered into as of the 1st day of January, 1995, by
and between Eco Soil Systems, Inc., a Nebraska corporation (hereinafter referred
to as "Eco Soil") having its principal place of business at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and ENCORE TECHNOLOGIES, INC., a Minnesota
corporation (hereinafter referred to as "Encore") having its principal place of
business at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
Whereas, Eco Soil has developed and patented a device that
automatically cultures microorganisms in an enclosed tank and then regularly
injects these organisms and their byproducts, along with other compatible
products, into an irrigation line for distribution into the area being
irrigated. For purposes of this Agreement, such device and any successor,
derivative, equivalent and/or improvement thereof may collectively be referred
to as "BioJect" or the "BioJect System";
Whereas, Encore is in the business of developing, acquiring and/or
marketing microorganisms for commercial purposes;
Whereas, Eco Soil desires to have Encore develop, supply and/or improve
microorganisms for specific applications which can be cultured and distributed
through Eco Soil's BioJect System, including the development of certain
proprietary recipes and techniques for the culture and scale-up of
microorganisms and their byproducts for distribution in the BioJect System as
set forth herein.
Now, therefore, the parties have agreed to enter into an Exclusive
Consulting Agreement under the terms and conditions set forth herein.
I. PURPOSE OF THE AGREEMENT.
The parties are entering into this Agreement primarily for the purposes
of expanding the installed end user base of the BioJect System in the golf turf
market; introducing BioJect to other markets such as agriculture; and exploring
new product opportunities in order to increase potential sales of biological
products distributable through the BioJect System.
II. TERM OF THE AGREEMENT.
This Agreement shall commence on the date hereof and continue for a
period of thirty (30) years and, unless terminated prior to expiration by either
party as set forth in Article VI hereof, shall automatically renew for up to
five successive three (3) year renewal terms thereafter.
III. OBLIGATIONS OF ENCORE.
Encore's initial consulting responsibilities are as follows:
A. Identify microorganisms and/or their byproducts appropriate
for distribution through the BioJect System to target a wide
range of applications such as herbicides, insecticides,
fungicides, thatch control, and nitrogen fixation, and
including improved versions of microorganisms currently used
in the BioJect System and any Encore or third party
proprietary organisms and/or byproducts to be evaluated,
developed, supplied or improved by Encore ( referred to herein
as a "Product" or "Products"). From time to time, Eco Soil may
provide Encore with specific Eco Soil preferences and criteria
for proposed Product efficacy, cost and marketing
considerations and/or the desirability of using microorganisms
developed by large and well-known companies. Encore will
evaluate all applicable Products on an independent basis using
such information, and will make final recommendations without
regard to any prior relationship or affiliation(s) with
Encore.
B. Explore and negotiate (and/or assist Eco Soil to negotiate and
obtain) selected development, licensure or other Product
acquisition opportunities.
C. Provide microorganism test result affidavits and certain other
information and assistance in connection with Eco Soil's
efforts to obtain permits and required Product registration of
these microorganisms with federal, state and local
governments.
D. Conduct scale-up work to determine the nutritional
requirements necessary to culture and maintain adequate
population levels of Products. Encore will also offer
technical input or other suggestions regarding potential
machine modifications in order to optimize organism growth in
the BioJect System.
E. Develop confidential Encore manufacturing assessments and
scale-up work regarding the culture and delivery of BioJect
System Products. Eco Soil acknowledges and agrees that Encore
will preserve and retain such information as its confidential
and proprietary property, and will not be obligated to
disclose such information to Eco Soil. Encore will take
reasonable steps to maintain and preserve copies of all such
proprietary materials in a locked safe deposit box or, upon
request and at the sole expense of Eco Soil, with a neutral
third party escrow agent at all times during the term of this
Agreement, which contents will be made available to Eco Soil:
(a) with Encore's prior written consent; (b) upon Encore's
failure to cure a material breach of this Agreement with
respect to the its confidential assessment and scale-up
services; (c) immediately, if Encore elects to suspend this
Agreement under Section VI.C (1) or (3); or (d) if Encore
becomes insolvent or files (or has filed against it) any
bankruptcy petition which is not dismissed within 60 days of
filing.
F. Assist Eco Soil with field efficacy studies, both at BioJect
customer sites and at the University of Minnesota laboratories
used by Encore, as such studies are deemed reasonably
necessary by Encore, and subject to payment of pre-authorized
Encore expenses incurred in connection with any travel to any
site located more than 50 miles from Encore's principal place
of business.
G. Offer suggestions and other assistance to help Eco Soil
develop and improve supportive relationships with the
scientific community.
H. Document and provide Eco Soil with a verified composition
analysis and Encore laboratory test verifications for each
BioJect System Product developed internally by Encore (and
sufficient non-confidential scale-up and operating
instructions therefor), and make reasonable efforts to obtain
comparable analyses, instructions and lab test verifications
from any third party vendors. Encore warrants only that its
composition analyses for internally-developed Products will be
true and correct in all material respects, and that such
Products have been created under laboratory conditions by
Encore. EXCEPT AS SET FORTH ABOVE OR UNDER ANY LIMITED
WARRANTY OFFERED UNDER AN ENCORE LICENSE AGREEMENT, ENCORE
MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO
ANY PRODUCT OR SERVICE PROVIDED HEREUNDER, AND EXPRESSLY
DISCLAIMS ALL OTHER WARRANTIES OF ANY NATURE, INCLUDING ANY
WARRANTIES WITH RESPECT TO PRODUCTS SUPPLIED BY OR THROUGH ANY
THIRD PARTY, OR ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE. Eco Soil agrees further that
Encore will not be liable to Eco Soil or any third party for
any lost profits, special, incidental, indirect, or
consequential damages arising out of this agreement or the
distribution or use of any Product.
I. Provide all services hereunder in a competent and professional
manner, and using reasonable best efforts.
The parties acknowledge that Encore's responsibilities may not be
limited to the preceding tasks and that the scope of services may be reasonably
and consistently modified, provided that any proposed change in Encore's
responsibilities must be identified in a written, signed amendment to this
agreement.
IV. OBLIGATIONS OF ECO SOIL.
Eco Soil's responsibilities under this agreement include the following:
A. Provide, on a commercially reasonable basis, ongoing service,
maintenance, end user support and other services sufficient to
keep the BioJect System functioning in all material respects.
These functions include supply and replenishment of Products,
consumables, related biological products and support media,
(including the acquisition and use of such items from and/or
as directed by Encore), preventative maintenance and prompt
BioJect System repairs, and ongoing product improvements and
enhancements. These functions may be performed in certain
geographical locations through a dealer network to be
supervised and managed by Eco Soil.
B. ▇▇▇▇ customers for the BioJect service and perform all credit
and collection functions with customers, either directly or
through a dealer network to be supervised and managed by Eco
Soil. For dealer sales, Eco Soil will ▇▇▇▇ and collect all
BioJect System funds due therefrom.
C. Make all BioJect System Products developed, supplied or
improved by Encore hereunder available on a commercially
reasonable basis to its customers, and offer reasonable
promotional support, pricing, credit and other terms and
policies designed to achieve maximum use and acceptance of
such products. Eco Soil may accept or reject any proposed
Product which, in its judgment, lacks commercial viability.
Eco Soil agrees further that it will, subject to the
new/replacement product exceptions outlined below, enter into
a BioJect Product License Agreement (in substantially the form
of Exhibit A), or will obtain Encore's written consent prior
to offering or selling any proposed microorganism, byproduct
or product through the BioJect System, and will not remove,
replace, substitute, reverse engineer or otherwise interfere
with the sale and use of any Product or attempt to offer or
sell any product similar to or derived from any proposed
Product previously rejected by Eco Soil on grounds of
commercial viability. Encore will consent to any proposed new
or replacement product which has been independently developed
by Eco Soil, and which possesses significant efficacy
advantages over Encore's applicable BioJect Product.
D. Design, engineer, manufacture and market current and improved
BioJect Systems and related hardware and equipment.
E. On a commercially reasonable basis and in the manner required
under Section VII., purchase and maintain adequate quantities
of such other equipment or materials required to keep the
BioJect System operating in all material respects, including
the timely payment or performance of all vendor obligations.
Advance purchases of consumables, biological products or
support media from or through Encore may require prepayment by
Eco Soil and/or compliance with Encore's then current credit
terms. Subject to its other obligations hereunder, the
final determination of and payment for all other BioJect
System equipment, products, biologicals and supplies used will
be the sole obligation and liability of Eco Soil.
F. Perform such accounting, bookkeeping and recordkeeping
functions necessary to support the BioJect service, and to
maintain originals or copies of all invoices, records or other
documents necessary to enable Encore or its representatives to
verify royalties and other amounts due Encore. All such
records will be made available for review and copying by
Encore upon request.
G. Provide all services hereunder in a competent and professional
manner, and using reasonable best efforts.
The parties acknowledge that Eco Soil's responsibilities may not be
limited to the preceding tasks and that the scope of services may be reasonably
and consistently modified, provided that any proposed change in Eco Soil's
responsibilities must be identified in a written, signed amendment to this
agreement. It is further agreed that nothing in this Agreement will require Eco
Soil to promote products or expend resources hereunder where such activities or
expenditures are commercially unreasonable, and that Eco Soil will not be liable
to Encore for any lost profits, special, incidental, indirect or consequential
damages arising out of this agreement or the distribution or use of any Product.
V. COMPENSATION TO ENCORE.
During the initial and any renewal term hereunder, Eco Soil Systems
agrees to enter into an agreement (in substantially the form of Exhibit A) to
pay Encore a royalty equal to 13% of all revenues due Eco Soil from any dealer,
end user or other third party under any sale, licensure or other use or transfer
of any BioJect Product, or for any derivative or successor product thereof. This
royalty rate is based on Eco Soil's agreement to ▇▇▇▇ and collect all BioJect
System revenues without dealer or other third party involvement, and will be
increased to 20% in the event any dealer or other third party is authorized to
direct ▇▇▇▇ for BioJect System use. Encore will also consider and negotiate an
appropriate royalty reduction in good faith and in extraordinary cases.
All royalty payments will be paid quarterly, on or before the 15th of
the month following the end of each calendar quarter, and will be delivered
together with Eco Soil's royalty computations which have been reviewed and
certified by Eco Soil's chief financial officer. No royalty will be payable for
any pre-existing products which have not been developed, supplied or improved by
Encore (which products are identified on the attached Exhibit B), for the annual
lease fee for the BioJect machine, or for any applicable product. taxes or
duties which have been separately identified on Eco Soil's invoices.
On or before each January 31 during the term of this Agreement, Eco
Soil will be entitled to offset future Product royalties due via credit equal to
royalties paid during the previous year for any "bad debts" (obligations due Eco
Soil which have been written off for financial statement purposes in accordance
with generally accepted accounting principles) and for documented, bona fide
product returns made during the previous calendar year. All such adjustments
will be resolved via credit against future royalties due Encore, and only in the
manner set forth in this section. Eco Soil will not make or attempt any other
offsets against product royalties payable except with Encore's prior written
consent. Any subsequent payments received from "bad debt" accounts will be
immediately reported to Encore, with reinstated royalty payments due on or
before the next quarterly royalty payment date.
In the event and to the extent aggregate annual royalty payments made
under all such agreements do not equal or exceed $100,000 for 1995, and such
aggregate-royalties paid do not equal or exceed $25,000 per calendar quarter in
1996, and 1997, Eco Soil will make an additional cash payment to Encore in the
amount of such aggregate royalty shortfall, due and payable on or before January
15, 1996 for 1995 royalties, and within 15 days following the close of each
calendar quarter for royalty shortfalls due for 1996 or 1997.
In exchange for such payments, Encore will be responsible for
compensating any third party microorganism licensor from the payment of
royalties it receives hereunder. For example, if Encore found a thatch control
organism for the BioJect System and Eco Soil charged the dealer $3,000 for a
series of thatch reducing applications, then Eco Soil's royalty payment for that
product would be $3,000 x .13 or $390. The compensation due to the owner of the
organism would then be made by Encore out of this royalty payment. Assuming the
organism owner had agreed to a 5% royalty, Encore would pay $150 to such owner
out of the $390 royalty it received from Eco Soil.
The parties have entered into a separate, independent consulting
agreement dated and effective November l, 1994 regarding monthly contract
research and development activities undertaken by Encore on behalf of Eco Soil
for products to be developed by Encore, which agreement (and the compensation
paid thereunder) are separate from and in addition to compensation to be paid
under this Agreement.
As additional compensation and in exchange for Encore's execution of
this Agreement, Eco Soil will grant Encore a warrant to purchase up to 50,000
shares of stock of Eco Soil at an exercise price of $3 per share, which shall be
immediately and fully exercisable for a seven-year period thereafter, and which
will be substantially in the form of the attached Exhibit C.
VI. TERMINATION.
A. Any material breach of this Agreement by either party may be
deemed a default, which default shall give the non-breaching
party the right to terminate this Agreement prior to
expiration as set forth herein. Upon receipt of a written
default notice outlining the alleged default(s), the
defaulting parry will have 60 days to cure all such defaults,
or to provide a good faith plan for the prompt resolution of
any such defaults that cannot be resolved within 60 days. Any
failure to do so shall entitle the non-defaulting party to
terminate this Agreement immediately thereafter upon delivery
of a termination notice.
B. Either party, by written notice delivered to the other party
at least 10 days prior to the proposed termination date, may
also elect to terminate this Agreement prior to expiration if
the other party: (1) terminates its business operations (or
suspends such operations for any 30 day period); (2) initiates
or becomes subject to any bankruptcy or insolvency proceeding,
corporate dissolution or similar proceeding under federal or
state law which is not dismissed within 60 days of filing; (3)
becomes insolvent or makes an assignment for the benefit of
its creditors; or (4) is made subject to the direct control of
a trustee, receiver or similar authority for any period of 30
days or more.
C. At any time after December 31, 1996, either party, by written
notice delivered to the other party at least 60 days prior to
the proposed suspension date, may also suspend this Agreement
prior to expiration if: (1) that party has permanently
abandoned and terminated all of its business operations; (2)
all use of the BioJect System has been permanently
discontinued under circumstances which do not require
compliance with Section X.F.; or (3) Encore permanently
discontinues the evaluation and supply of irrigation system
microorganisms. Such notice shall specify that suspension is
being effected under this Section VI.C. suspension will not
affect or alter the existence or enforceability of any
pre-termination debts, covenants or other obligations under
this Agreement or create or give rise to any claim, liability,
damage, or other obligation based on or alleged to have
resulted from such termination.
Provided that the suspending party (or any assignee, successor,
transferee or other representative) does not resume any such activities for the
ten year period following the suspension date, the suspension will be converted
into a final termination of this Agreement as of the tenth anniversary thereof.
D. Any termination of this Agreement will not alter or affect the
validity, survival or enforceability of any pre-termination
BioJect product royalty agreement or the parties' November 1,
1994 consulting agreement, and, except as prohibited under
Section VI.C. above, will not affect or alter any legal or
equitable remedies available to the non-terminating party for
debts due or other claims arising out of this Agreement,
including without limitation any claims relating to the
unauthorized, post-termination use of any party's products,
technology or other property or any Eco Soil claim hereunder
regarding the release of escrowed confidential information.
VII. SUPPLY SOURCING OBLIGATIONS.
Encore agrees to offer to sell or to provide Eco Soil with third party
sourcing information for all Product consumables, related biological products,
support media or other ancillary supplies. All such supplies must be reasonably
satisfactory to Eco Soil with respect to cost and payment terms; availability
and delivery options; specifications; and title, merchantability, fitness,
non-infringement or other warranty coverage. Eco Soil will provide Encore with
quarterly supply forecasts and proposed delivery deadlines in order to allow
Encore to investigate and respond with available sourcing options. All supplies
will only be purchased hereunder by Encore following receipt of Eco Soil's
written purchase order or other binding authorization, and will be prepaid
unless Encore (using reasonable best efforts) can negotiate acceptable 30-day
credit terms with the supply source. Eco Soil remains free to negotiate its own
credit and payment terms for direct purchases from third party supply sources.
VIII. EXCLUSIVITY.
Eco Soil and Encore agree that Encore's developmental efforts for Eco
Soil will be targeted specifically to commercializing and adapting
microorganisms so that they can be effectively introduced to the soil and to
turf and crops through the BioJect System. Encore agrees to perform such
services exclusively for Eco Soil during the term of this agreement and not to
provide consulting services regarding the growth, introduction and delivery of
microorganisms through an irrigation system to any Eco Soil competitor without
Eco Soil's prior written consent. However, Encore is not restricted under this
Agreement from creating or commercializing microorganisms or other biological
products for itself or for other individuals or entities, so long as such
products are delivered to the plant and/or soil via any non-irrigation systems
or methods, including without limitation, any products deliverable by spraying,
granular or powder applications.
Eco Soil agrees that it will use its reasonable best efforts to utilize
and market all Products developed, supplied and/or improved by Encore under this
Agreement; and that unless it has obtained Encore's prior written consent or
Encore has elected to suspend its obligations under Section VI.C.(1) or (3), it
will work exclusively with Encore and will not hire, contract with or enter into
any other relationship with any third party during the term of this Agreement
for the research, evaluation, development, acquisition, supply or improvement of
any current or proposed BioJect System products or any other services to be
provided by Encore under this Agreement.
IX. CONFIDENTIALITY.
Both parties currently possess and Encore is expected to develop,
acquire or improve certain additional and substantial confidential and/or
proprietary products, information, documents or other valuable tangible or
intangible property under this Agreement, the value of which could be greatly
and adversely affected by unauthorized use or disclosure (collectively referred
to in this Section as "Secrets"). Therefore, each party agrees to abide by the
following restrictions for all Secrets revealed hereunder.
A. To maintain all of the other party's Secrets in strictest
confidence and utilizing all reasonable precautions necessary
to protect such Secrets, except as may otherwise be
pre-authorized in writing by the other party;
B. To refrain from using any of the other party's Secrets except
as and to the extent necessary for the purpose of working on
projects currently in progress or on future projects
authorized and agreed to in advance by both parties;
C. To refrain from disclosing any of the other party's Secrets to
any third party without the other party's prior written
consent;
D. To limit access to all Secrets to those employees who
reasonably require the information to actively work on
authorized projects hereunder and who have expressly agreed to
treat the other party's Secrets as confidential in the same
manner and to the same extent as its own Secrets;
E. To abide by such other confidentiality restrictions or
practices that may be reasonably requested by the other party,
including the execution and delivery of such
confidentiality/nondisclosure agreement(s) as may be requested
from time to time.
Nothing contained in this agreement will in any way restrict either
party's rights to use, disclose or otherwise deal with any Secrets which the
party can prove: was in its possession through legitimate means prior to the
date of this agreement; obtained thereafter from a source entitled to disclose
such Secret(s); or was already generally known and within the public domain as
of the date of initial disclosure hereunder, or which becomes generally known
thereafter through legitimate means and through no fault of Eco Soil.
Each party acknowledges and agrees that it shall not claim or receive
any ownership or other interest in any Secrets disclosed and/or developed by the
other party under this Agreement regarding the composition, properties and
characteristics, formulation, reproduction, applications, and other use of any
microorganism or other BioJect Product developed, supplied or improved
hereunder. In order to protect and preserve the value of such Encore Secrets and
notwithstanding any other provision of this Agreement or the parties' operation
of the BioJect System during the term hereof, Eco Soil agrees that it will not
make, sell or use any microorganism or product which is identical to, derived
from and/or the successor to or equivalent of any BioJect Product, except as
authorized under a Product License Agreement, or except for any manufacture,
sale or use by Eco Soil which is beyond the scope of any License Agreement and
which does not involve the disclosure or use of any Encore Secrets. Eco Soil
acknowledges and agrees that such restrictions are reasonable and necessary for
the protection of Encore's Secrets, and that Encore would be irreparably harmed
and will be entitled to injunctive relief in the event of any post termination
breach of the provisions of this Section. The parties also agree that the
provisions of this Section IX. will expressly survive any expiration or
termination of this Agreement.
During the term of this Agreement and notwithstanding any other
provision of this Agreement or the parties' operation of the BioJect System,
Encore agrees that it will not disclose any confidential manufacturing
assessments or other unique Product Secrets to any individual or form which
manufacturers or markets any irrigation system competitive with the BioJect
System. Encore acknowledges and agrees that such restrictions are reasonable and
necessary for the protection of such Secrets, and that Eco Soil would be
irreparably harmed and will be entitled to injunctive relief in the event of any
post-termination breach of the provisions of this Section. The parties also
agree that the provisions of this Section IX. will expressly survive any
expiration or termination of this Agreement.
X. MISCELLANEOUS PROVISIONS.
A. NOTICES. Any and all notices required or permitted hereunder
must be in writing and delivered personally or sent by
overnight courier, or by registered or certified mail with
return receipt requested, addressed to the other party at the
address hereinabove set forth, or at such other address as
shall be designated from time to time by the parties. Notice
shall be deemed to be effective upon the earlier of personal
service or upon the date of receipt indicated on the proof of
delivery.
B. ENTIRE AGREEMENT; AMENDMENTS. Except for the parties'
Consulting Services Agreement dated and effective November 1,
1994 or any Product License to be executed hereunder, this
agreement (together with any amendments, schedules or other
exhibits) contains all of the parties' agreements,
understandings, representations, conditions, warranties, and
covenants, and supersedes all prior or contemporaneous
agreements, understandings, negotiations or discussions. All
waivers, modifications or amendments hereto must be in writing
and signed by authorized officers of both parties.
C. AUTHORITY TO ENTER INTO THE AGREEMENT. Each of the parties
represents that it has full power and authority to enter into
and perform its respective obligations under this Agreement,
and that such entry and performance will not breach or
conflict with any other contract or obligation to which such
party is bound, and will not violate any applicable statute,
regulation or other law.
D. WAIVER. The failure of either party at any time to require
performance by the other party of any provision hereof shall
not affect in any way the right to require such performance at
any time thereafter. Nor shall a waiver by either party of a
breach of any provision hereof be taken or held to be a waiver
of the provision itself.
E. SEPARABILITY. Each of the terms of this Agreement is exclusive
and the invalidity of one or more terms shall not void or make
voidable any other terms of the Agreement.
F. ASSIGNMENT; BINDING EFFECT. Any proposed Eco Soil sale, lease,
licensure or other transfer or assignment of its BioJect
System (or any material element(s) thereof), or any proposed
assignment or other transfer of either party's rights and/or
obligations under this Agreement, may not be undertaken
without the prior written consent of the other party, and any
attempted transfer undertaken without such consent will be
null and void. No consent will be unreasonably withheld or
delayed, and the parties agree that consent will be provided
where the proposed assignee or transferee: (a) agrees to
expressly observe all covenants and assume all obligations
hereunder; and (b) will, following the assignment/transfer and
taking into account its acquisitions thereunder, have
financial and other abilities reasonably equivalent to those
of its predecessor.
Except as limited by the preceding sentences, this Agreement
shall be binding upon and inure to the benefit of the parties
hereto, and their respective permitted assigns, transferees,
successors or other representatives.
The foregoing language shall not prohibit or require consent
for any sale or other transfer of the stock of either party or
any other organic change that does not affect or alter Eco
Soil's obligations under this Agreement or its ownership of
the BioJect System. However, if either party commences serious
negotiations regarding the sale or exchange of all or
substantially all of its stock, it shall promptly advise the
other party of such negotiations and allow the other party a
period of at least 15 days to prepare and present any such
proposals as it may desire. In addition, the parties intend to
negotiate in good faith regarding a potential buyout or other
arrangements acceptable to Encore in the event Eco Soil is
merged with or acquired by another company.
G. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but
all of which taken together shall constitute one and the same
document.
H. DISCLAIMER OF AGENCY. This Agreement shall not constitute
either party's appointment or designation as the legal
representative or agent of the other, and neither party has
any right or authority to assume, create, or incur any
liability or any obligation of any kind, express or implied,
against or in the name of or on behalf of the other party in
any manner, or to attempt to do so or hold itself out as being
authorized to do so.
I. GOVERNING LAW, JURISDICTION AND VENUE. The validity,
interpretation, and performance of this Agreement shall be
controlled by and construed under the laws of the State of
Minnesota, the state in which this Agreement is accepted. Eco
Soil hereby irrevocably consents to the jurisdiction of the
appropriate Minnesota courts located in Hennepin County,
Minnesota, and agrees that all litigation arising hereunder
shall be venued in Hennepin County, Minnesota.
J. HEADINGS. Paragraph headings are not to be considered part of
this Agreement and are included solely for the convenience and
are not intended to be full or accurate descriptions of the
content thereof.
K. TIME OF ESSENCE. Time is of the essence in this Agreement and
the failure of either party to promptly pay when due any
payments, or to perform any material obligations required
herein, may be treated by the other party as a material breach
of this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and accepted as set forth herein, as of the date and year first
appearing above.
ECO SOIL SYSTEMS, INC.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Its Chief
Executive Officer
Accepted in Eden Prairie, Minnesota.
ENCORE TECHNOLOGIES, INC.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, Its Vice President