VERTIGRO ALGAE TECHNOLOGIES LLC TECHNOLOGY LICENSE AGREEMENT
Vertigro
Algae Technologies LLC
VERTIGRO ALGAE TECHNOLOGIES
LLC
TABLE OF
CONTENTS
| ARTICLE I | DEFINITIONS |
2
|
| ARTICLE II | GRANT OF LICENSES |
6
|
| ARTICLE III | CONSIDERATION - PAYMENT - REPORTING -RECORDS |
6
|
| ARTICLE IV | IMPROVEMENTS |
10
|
| ARTICLE V | PATENT APPLICATIONS AND PATENTS |
11
|
| ARTICLE VI | CONFIDENTIALITY |
12
|
| ARTICLE VII | INFRINGEMENT BY OTHERS; PROTECTION OFPATENTS |
13
|
| ARICLE VIII | TERM AND TERMINATION |
14
|
| ARTICLE IX | ASSIGNMENT AND SALE |
16
|
| ARTICLE X | REPRESENTATION AND WARRANTIES |
17
|
| ARTICLE XI | PRODUCT QUALITY AND PRODUCT LIABILITY |
18
|
| ARTICLE XII | MEDIATION AND ARBITRATION |
19
|
| ARTICLE XIII | GENERAL |
20
|
1
Vertigro
Algae Technologies LLC
This
TECHNOLOGY LICENSE AGREEMENT (hereinafter referred to as the "License
Agreement"), by and among PAGIC LP, (“PG”), a company incorporated in the State
of Texas, United States and having an office at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇ and WEST PEAK VENTURES of CANADA LTD. (“WPV”), a company
incorporated Federally in Canada and having its registered office at ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇▇, (collectively hereinafter referred to as
the "Licensor") and VERTIGRO ALGAE TECHNOLOGIES, LLC., a company incorporated in
the State of Texas, United States and having a place of business at ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ (hereinafter referred to as the
“Licensee”).
RECITALS
WHEREAS,
Licensor is the exclusive licensee of certain Algae Biomass Technology and
Intellectual Property, owned by ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ and developed by
Licensor.
WHEREAS,
Licensee desires to license the Algae Biomass Technology and Intellectual
Property to commercialize and exploit the Algae Biomass Technology for all
industrial, commercial, and retail applications, including but not limited to,
bio-fuel, food and health, pharmaceutical and agricultural applications and
Licensee desires to be the exclusive world-wide licensed business developer,
marketer, manufacturer, seller and operator of the Licensed Products
produced by the Algae Biomass Technology throughout the Territory, all as set
forth in this License Agreement; and;
WHEREAS,
Licensor desires to grant to the Licensee such rights and licenses, all as set
forth in this License Agreement;
NOW,
THEREFORE, in consideration of the promises, mutual covenants and obligations
hereinafter set forth and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE
I
DEFINITIONS
Each of
the following terms shall, whenever found in this License Agreement, be used and
understood in accordance with the definition below:
2
Vertigro
Algae Technologies LLC
1.1 “Algae
Biomass Technology” shall mean any technologies for the commercial production of
a high yield algae based biomass for industrial, commercial and retail
applications, as more fully described on Exhibit “A”, including but not limited
to, bio-fuel, food, health, pharmaceutical, and agricultural
feedstock.
1.2 "Territory"
shall mean the entire world and each and every country, sovereign nation, and
all jurisdictions therein, with the exception of the State of Nevada,
USA.
1.3 "Licensed
Product" shall mean any goods and/or services sold, transferred, exchanged, or
otherwise disposed by Licensee or Sublicensees, whether by gift or otherwise,
that embody, employ, include or incorporate the Intellectual Property or Elected
Improvements of the Algae Biomass Technology or are produced by apparatus or
methods that embody, employ, include or incorporate the Intellectual Property or
Elected Improvements of the Algae Biomass Technology. Licensed
Products shall not include goods and/or services sold, transferred, exchanged,
or otherwise disposed by Licensee to a Sublicensee that are not produced by
Licensee using an apparatus or methods that embody, employ, include or
incorporate the Intellectual Property or Elected Improvements of the Algae
Biomass Technology. The Licensed Product may also be referred to in
the plural and termed Licensed Products.
1.4 "Patent
Rights" shall mean and include patents and patent applications, including the
existing patents and patent applications and the patent applications to be filed
set forth on Exhibit "B", attached hereto and made a part hereof, relating to
the Algae Biomass Technology and/or any divisional application, continuation
application, continued prosecution application, continuation-in-part
application, substitute application, renewal application, reissue application,
reexamination, extension, cautionary notices and any other patent application
that have been or shall be filed in the United States and all foreign countries
on the Algae Biomass Technology and any patent application, filed anywhere, that
claims the benefit of a filing date of any of the Algae Biomass Technology
patents and applications. The term Patent Rights shall further
include any United States and foreign patents and patent applications covering
the Elected Improvements.
1.5 "Know-How"
shall mean all of the technical know-how, trade secrets, technical information,
and knowledge, directly or indirectly, relating to the Algae Biomass Technology
and/or the manufacture and use of the Licensed Products, including, without
limitation, production processes, production equipment, configurations,
formulas, engineering, materials, scientific and practical information and the
disclosure in the Patent Rights, whether patentable or unpatentable, and all
physical manifestations or embodiments of the Licensed Products including
without limitation all data specifications, prototypes, drawings, schematics,
notes, records and other writings; all such Know-How to be used or practiced or
capable of being used or practiced in the manufacture and use of the Licensed
Product.
3
Vertigro
Algae Technologies LLC
1.6 "Improvements"
shall mean and include any improvements or new technology relating to the Algae
Biomass Technology and any improvements and modifications to the Licensed
Products, including, without limitation, the materials and configuration of the
Licensed Products; and any machinery or equipment for the manufacture or use of
the Licensed Products, together with any improvements and modifications thereof,
developed by Licensor during the term of this License Agreement.
1.7 "Elected
Improvements" shall mean those Improvements elected by Licensee pursuant to
Paragraph 4.3 hereof.
1.8 "Net
Sales" of the Licensed Products for any given period shall mean the gross amount
from the sale,
transfer, exchange, or other disposition, whether by gift or otherwise, by
Licensee or Licensee’s Sublicensees during the said period in consideration for
the Licensed Products, adjusted for exchanges and returns of the Licensed
Products sold, transferred, exchanged, or otherwise disposed or delivered during
a previous period and excluding monies received by Licensee from Sublicensees
for project and operating licenses, including but not limited to hardware and
software, and for project and operating services charged by Licensee
to Sublicensees. Net Sales of Licensed Products transferred,
exchanged, or otherwise disposed, whether by gift or otherwise, shall be the
market value of such Licensed Products. Net Sales shall not include
any charges for freight, packing, or insurance if such charges are identified
and billed separately and in addition to the list price for the Licensed
Products; nor shall Net Sales include charges for tax or duty on sales or
delivery of the Licensed Products.
1.9 "License
Year" shall mean each successive twelve months commencing on April 1 in which
the License Agreement is effective.
1.10 "Effective
Date" shall mean March 4, 2008, which is the day on which this License Agreement
shall begin effect.
1.11 “Affiliate”
shall mean, with respect to any company, sole proprietorship, partnership, joint
venture, corporation or other legal entity (“Entity”), (i) any company, sole
proprietorship, partnership, joint venture, corporation or other legal entity
directly or indirectly controlling, controlled by, or under common control with
such Entity, (ii) any officer, director, manager, or general partner of such
Entity, or (iii) any person, company, sole proprietorship, partnership, joint
venture, corporation or other legal entity who is an officer, director, manager,
general partner, or trustee of any Entity described in clauses (i) and (ii) of
this sentence. For purposes of this definition, the term “controls,”
“is controlled by,” or “is under common control with” shall mean the possession,
direct or indirect, of the power to direct or cause the direction of the
management and policies of an Entity, whether through the ownership of voting
securities, by contract or otherwise.
4
Vertigro
Algae Technologies LLC
1.12 “Trademark
Rights” shall mean and include the trademarks set forth on Exhibit
“C”.
1.13 “Intellectual
Property” shall mean and include all proprietary or other rights throughout the
world provided under (i) patent law, including patents and patent applications
therefore pending before any relevant authority worldwide, including, without
limitation, the Patent Rights, (ii) know-how and trade secret law, including,
without limitation, the Know-How, (iii) trademark law, including, without
limitation, the Trademark Rights, (iv) copyright law, (v) design patent or
industrial design law, and (vi) any equivalent right granted under the laws of
any jurisdiction in the world which provides protective or other intellectual
property rights and relating to the Algae Biomass
Technology and Elected Improvements.
1.14 “Adjustment
Royalties” shall mean and include the 2009 Adjustment Royalty of Paragraph 3.7,
the 2010 Adjustment Royalty of Paragraph 3.8, and the Adjusted Royalty of
Paragraph 3.9.
1.15 “Sublicensee”
shall mean any entity granted a sublicense by Licensee pursuant to Paragraph 2.2
under this License Agreement.
1.16 “Royalties”
shall mean and include Advance Royalties, Running Royalties and Adjustment
Royalties.
1.17 “Gross
Receipts” for any given period shall mean all revenues received by the Licensee
during the said period, adjusted for exchanges and returns of goods sold,
transferred, exchanged, or otherwise disposed or delivered during a previous
period. Gross Receipts of goods and services transferred, exchanged,
or otherwise disposed, whether by gift or otherwise, shall be the market value
of such goods and services. Gross Receipts shall not include any
Running Royalties paid to Licensee by Sublicensees; any charges for freight,
packing, or insurance if such charges are identified and billed separately and
in addition to the list price for the goods; or any charges for tax or duty on
sales or delivery of the goods and services.
1.18 “Advance
Royalty” shall mean four and one-half percent (4.5%) of the Gross Receipts of
Licensee for a given period from an individual Sublicensee or an individual
entity other than a Sublicensee.
1.19 “Cumulative
Advance Royalty” shall mean Advance Royalties paid by Licensee for prior periods
for Gross Receipts from an individual Sublicensee or an individual
entity other than a Sublicensee less the amount of Running Royalties credited
toward said Advanced Royalties for said individual Sublicensee or individual
entity other than a Sublicensee during previous periods pursuant to Paragraph
3.4.
5
Vertigro
Algae Technologies LLC
ARTICLE
II
GRANT OF
LICENSES
2.1 Licensor
grants to Licensee the exclusive right and license throughout the Territory to
use and employ the Intellectual Property to manufacture, use, operate, offer to
sell, and sell, directly or through sublicensees, the Licensed
Products for the term hereof and subject to the provisions of this License
Agreement.
2.2 The
rights and licenses granted pursuant to Paragraph 2.1 above shall specifically
include the right of Licensee to grant sublicenses throughout the Territory. Any
sublicense granted by Licensee shall be consistent with the terms of this
License Agreement and shall grant to Licensor rights parallel to those contained
herein including, but not limited to, the right to receive Royalties from
Licensee and Sublicensees in accordance with Article III and Paragraph 8.8
hereof. Any sublicense granted pursuant to this Paragraph 2.2 that varies the
terms of this License Agreement shall require the prior written approval of
Licensor. Licensee shall provide Licensor with copies of all documents or
contracts regarding any sublicense hereunder.
2.3 Within
ten (10) days after execution of this License Agreement, Licensor shall supply
to Licensee, at a mutually agreeable location, without expense to Licensee, all
Know-How, including materials and written information related to the Licensed
Technology not previously delivered.
ARTICLE
III
CONSIDERATION
- PAYMENT - REPORTING - RECORDS
3.1 In
consideration of the rights and licenses granted herein, Licensee agrees to pay,
upon the execution of this License Agreement, a one-time, non-refundable license
fee and to have Valcent Products, Inc. and Global Green Solutions Inc., as
equity holders of Licensee, each issue to PG Three Hundred Thousand shares of
their stock in full payment of the one-time, non-refundable license fee
("License Fee").
3.2 In
further consideration of the rights and licenses granted herein, Licensee agrees
to pay a one-time, non-refundable commercialization fee ("Commercialization
Fee") to PG in the amount of Fifty Thousand Dollars ($50,000) upon the Algae
Biomass Technology reaching commercial viability as determined by the Board of
the Licensee and Licensee agrees to pay the Licensor the Royalties set forth
below in this Article III.
6
Vertigro
Algae Technologies LLC
3.3 Licensee
agrees to pay an Advance Royalty to Licensor for the term of this License
Agreement in the amount of Four and One Half Percent (4.5%) of the Gross
Receipts from each of the Licensee’s individual Sublicensees or individual
entities other than a Sublicensee. Advance Royalties shall be
cumulative and without recourse to Licensor except for the Licensor’s agreement
pursuant to Paragraph 3.4 to credit Seventy Percent (70%) of the Running
Royalties due and payable from an individual Sublicensee or an individual entity
other than a Sublicensee to offset and reduce any Advance Royalty for a given
period and any Cu mulative Advance Royalties for prior periods based upon the
Gross Receipts from each of Licensee’s individual Sublicensees or individual
entities other than a Sublicensee.
3.4 Licensee
agrees to pay a Running Royalty to Licensor for the term of this License
Agreement in the amount of Four and One Half Percent (4.5%) of the Net Sales of
the Licensed Product(s) as defined (hereafter "Running Royalty"); provided
however that Seventy Percent (70%) of the Running Royalty to be paid on the Net
Sales of a Sublicensee or entity other than a Sublicensee for a given period
shall be credited against any Advance Royalty and Cumulative Advance Royalty
paid to Licensor based upon Grosse Receipts from such Sublicensee or entity
other than a Sublicensee and not previously credited, thereby reducing the
Running Royalty to be paid to Licensor for said given period. In no
case will the Cumulative Advance Royalty be less than zero.
3.5 In
the event the amount of the Advance Royalty and Running Royalty causes a project
opportunity with the Licensee or a Sublicensee to be un-economic or
non-competitive or non-commercial, then Licensor agrees to negotiate with
Licensee in good faith, other reasonable terms in an attempt to cause the
project opportunity to be economic or competitive or commercial; provided,
however, that Licensor shall make the final determination of the amount of the
Advance Royalty and Running Royalty and any adjustment in the amount of the
Advance Royalty and Running Royalty set forth in Paragraph 3.4 for such
Sublicensee shall not adversely affect the amount of the Advance Royalty and
Running Royalty paid by other Sublicensees.
3.6 The
amount of the Royalties payable according to Paragraph 3.3 has been negotiated
to include payment of the license for the Intellectual Property without regard
to the patentability of the Patent Rights.
3.7 In
the event that the total Advance Royalty and Running Royalty paid by Licensee to
Licensor according to Paragraphs 3.3 and 3.4 in the Initial License Year ended
March 31, 2009 for the Licensed Product(s), does not exceed Fifty Thousand
Dollars ($50,000) for such Initial License Year for the Licensed Product(s),
then Licensee shall pay to Licensor a minimum royalty amount equal to
Fifty Thousand Dollars ($50,000) less the total Running Royalty actually paid
for the Licensed Product(s) during such License Year (the “2009 Adjustment
Royalty”).
7
Vertigro
Algae Technologies LLC
3.8 In
the event that the total Advance Royalty and Running Royalty paid by Licensee to
the Licensor according to Paragraphs 3.3 and 3.4 in the License Year ended March
31, 2010 for the Licensed Product(s), does not exceed an amount of One Hundred
Thousand Dollars ($100,000) for such License Year for the Licensed Product(s),
then Licensee shall pay to the Licensor a minimum royalty amount equal to One
Hundred Thousand Dollars ($100,000) less the total Running Royalty actually paid
for the Licensed Product during such License Year (the “2010 Adjustment
Royalty”).
3.9 Beginning
in the License Year Ending March 31, 2011 and each License Year thereafter, in
the event that the total Advance Royalty and Running Royalty paid by Licensee to
the Licensor according to Paragraphs 3.3 and 3.4 in a License Year for the
Licensed Product(s) does not exceed a minimum royalty in the amount Two Hundred
and Fifty Thousand Dollars ($250,000) (the “Minimum Royalty”) for such License
Year for the Licensed Product(s), then Licensee shall pay to the Licensor an
Adjusted Royalty amount equal to the Minimum Royalty for such License
Year for the Licensed Product(s) less the total Running Royalty actually paid
for the Licensed Product(s) during such License Year (hereafter “Adjusted
Royalty”).
3.10 Notwithstanding
anything to the contrary contained in this License Agreement and particularly
Article IX, Licensee shall pay thirty three and thirty three one hundredths
percent (33.33%) of all Royalties to WPV or its assigns pursuant to a Royalty
Agreement executed concurrently herewith between PG and WPV and shall pay the
remaining sixty six and sixty seven one hundredths percent (66.67%) of all
Royalties to PG or its assigns. Rights to Royalties shall be governed by and be
subject to this License Agreement.
3.11 In
the event that Licensee fails to pay any Royalties when due, Licensor shall give
Licensee written notice of such failure and request confirmation of Licensee's
intent not to pay such Royalties. If Licensee responds that such failure was not
intentional, then Licensee shall have 30 days after receiving said notice to pay
such Royalties.
3.12 In
the event Licensee intentionally fails to pay the Royalties within the agreed
payment terms period as defined in Paragraph 3.13(d), then Licensor shall have
the right to terminate this License Agreement pursuant to the terms and
conditions as stated in Article VIII. In the event of a dispute between the
parties as to the Royalties, the parties agree to submit the matter to binding
mediation and arbitration pursuant to Article XII. If the matter is submitted to
binding mediation and arbitration pursuant to Article XII, then this License
Agreement shall not be terminated while the arbitration is pending and the
arbitrator's decision has not yet been rendered.
8
Vertigro
Algae Technologies LLC
3.13 For
the purposes of computing and paying the Royalties pursuant to this
Article:
(a) The
Licensed Products(s) shall be deemed sold and Licensor’s Running Royalty thereon
earned upon Net Sales being invoiced by Licensee or Sublicensee for the Licensed
Product(s) or on the date that Licensed Products were transferred, exchanged, or
otherwise disposed by Licensee or Sublicensees, whether by gift or otherwise,
and the Running Royalty shall be due as set out in Paragraphs (c) and (d)
below.
(b) Payment
of the Royalties shall be in U.S. Dollars by certified check or wire transfer to
bank accounts of WPV and PG as specified by the Licensor. For purposes of
computations of such Royalties, the amount of Royalties due shall be converted
to U.S. Dollars, when necessary, as of the average over the three (3) month
period when the Licensed Product(s) was deemed sold.
(c) Payment
of the Running Royalty shall be due and paid to the Licensor within sixty (60)
days of the close of each three (3) month period during each Initial License
Year and License Year of the term of this License Agreement.
(d) Payment
of the Adjustment Royalty shall be due and paid to WPV and PG within sixty (60)
days of the close of each License Year.
(e) The
Royalties due hereunder shall be calculated using U.S. Generally Accepted
Accounting Principles.
3.14 Together
with each three (3) month period payment, Licensee shall render to the Licensor
a written report stating, for the preceding three-month period covered by such
payment, the volume and Net Sales of Licensed Product(s) sold, transferred,
exchanged, or otherwise disposed, whether by gift or otherwise, by the Licensee
and each Sublicensee, the Royalties received from the Net Sales of the Licensed
Product(s), the Running Royalty and any Adjustment Royalty due to Licensor, and
the Running Royalty paid by Licensee for said three (3) month
period.
3.15 Licensee
and each Sublicense agree to keep records of the Net Sales of Licensed
Product(s) in sufficient detail to enable the Running Royalty payable by it to
Licensor to be determined and further agrees to permit its books and records
pertinent to the Net Sales of Licensed Product(s) to be examined from time to
time by Licensor, but not more often than twice a year, during normal business
hours by providing at least five business days written notice, to the extent
necessary to verify the amount of Royalties payable hereunder.
9
Vertigro
Algae Technologies LLC
3.16 Pursuant
to Paragraph 3.15, Licensor shall have the right to appoint an independent
certified public accountant ("CPA") at its own expense to determine that the
correct amount of Royalties has been paid by Licensee or a Sublicense. If the
Licensor determines there are discrepancies requiring adjustment in the amount
of Royalties paid by a Sublicensee for the Net Sales of the Sublicensee, then
the Sublicensee shall pay the amount of any underpayment of Royalties within 30
days unless the Licensor, Licensee, and Sublicensee cannot reach agreement
whereby the Licensor, Licensee, and Sublicensee shall subject themselves to
binding mediation and arbitration pursuant to Article XII forthwith. Licensor
shall have the right to terminate the sublicense of the Sublicensee in the event
the Sublicensee fails to pay the amount of the underpayment. If the Licensor
determines there are discrepancies requiring adjustment in the amount of
Royalties paid by the Licensee for the Net Sales of the Licensee or in the
Royalties collected by the Licensee from a Sublicensee, then the Licensee shall
pay the amount of any underpayment of Royalties within 30 days unless the
Licensor and Licensee cannot reach agreement whereby the Licensor and Licensee
shall subject themselves to binding mediation and arbitration pursuant to
Article XII forthwith. Licensor shall have the right to terminate this License
Agreement in the event the Licensee fails to pay the amount of the
underpayment. Any overpayment of Royalties by the Licensee or a
Sublicensee shall be deducted from the next reporting period Royalty payments
without recourse to the Licensor.
3.17 If
the results of the examination pursuant to Paragraphs 3.15 and 3.16 determine
that the Royalties were underpaid by an amount greater than or equal to 5% of
the actual Royalties calculated over the last four quarters covering Licensee's
fiscal year resulting from matters within Licensee’s control, then Licensee
agrees to pay the cost of the examination plus a penalty equal to 10% of the
amount of the underpayment in Royalties, the amount of the underpayment and the
reimbursement of the costs of examination to be paid within thirty days of
written notice of the underpayment. Further Licensor shall have the right to
examine the calculation of Running Royalties over the succeeding two quarters at
Licensor cost.
ARTICLE
IV
IMPROVEMENTS
4.1 Licensor
and Licensee agree that they shall keep each other mutually informed of any
Improvements to any Algae Biomass Technology for producing Licensed Products of
which they become aware during the term hereof, whether they become aware of
such Improvements through their own efforts or efforts of Sublicensees
(“Improvements”). Licensor and Licensee shall inform one another of
the nature and substance thereof within thirty (30) days following awareness of
such Improvements.
10
Vertigro
Algae Technologies LLC
4.2 The
parties hereto agree that ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ shall hold the entire right, title,
and interest in and to any Improvements and all Intellectual Property relating
thereto.
4.3 Licensee
shall have the right, for a period of ninety (90) days following a written
communication to Licensee by Licensor describing the Improvements that have been
reduced to practice, to elect to include such Improvements within the terms of
this License Agreement whereby such Improvements shall become Elected
Improvements. If Licensee fails or refuses to so elect, Licensee
hereby releases any rights to such Improvements to Licensor and Licensor shall
be free to commercialize such Improvements without accounting to
Licensee. Should Licensee elect such Improvements and subsequently
commercialize such Improvements, Licensee agrees to pay Royalties on such
Improvements in accordance with Article III.
4.4 Licensor
and Licensee agree to execute any documents or papers deemed necessary to
effectuate the intent of this Article IV and further to execute such documents
or papers as may be necessary for the prosecution of any patents or applications
for patents covering the elected Improvements.
ARTICLE
V
PATENT
APPLICATIONS AND PATENTS
5.1 The
parties hereto agree that ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ shall hold the entire right, tide,
and interest in and to the Algae Biomass Technology, including Improvements, to
the Algae Biomass Technology and Intellectual Property, and Licensee agrees to
perform all acts and to execute, acknowledge and deliver all instruments or
writings reasonably requested and necessary for ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ to perfect
title to the Algae Biomass Technology and Intellectual Property.
5.2 Licensor
and Licensee agree that they will procure Patent Rights on the Algae Biomass
Technology and Improvements. Licensor shall have the sole right to prosecute,
control, and pursue such Patent Rights under the patent laws of the United
States and foreign countries. Licensor agrees to prosecute, with good faith and
due diligence, all pending and future patent applications. All fees, costs and
expenses shall be borne by Licensee and the failure of Licensee to pay such
fees, costs and expenses shall constitute a substantial breach of this License
Agreement. Licensee agrees to cooperate with Licensor to whatever extent is
necessary to procure such patent protection.
5.3 In
the event Licensor decides to abandon any pending United States or foreign
patent application or to not pay any annuity or maintenance fee required by any
country, Licensor shall give Licensee thirty (30) days prior written notice of
such decision and shall allow Licensee to become the owner of such United States
or foreign patent or application and to pay such fee. Licensee's decision shall
have no effect on the Royalties.
11
Vertigro
Algae Technologies LLC
5.4 Licensor
agrees to keep Licensee fully informed, at Licensee’s expense, of the
prosecution of all U.S. and foreign patent applications including submitting to
the Licensee copies of all official actions and responses thereto.
5.5 Licensee
shall have the right to conduct an audit of the Licensors Patent Rights to
ensure that the Patent Rights are in good standing and that Licensor has
maintained them in good standing during the term of this License Agreement. In
the event that Licensee determines that the Patent Rights are not in good
standing, then Licensee shall have the right to place such Patent Rights in good
standing and if necessary, to seek relief through binding mediation and
arbitration pursuant to Article XII if the failure to maintain the Patent Rights
in good standing may cause or has caused the Licensee damages.
5.6 Licensee
agrees to comply with any marking requirements of Licensor to insure compliance
with 35 U.S.C. §287, and agrees to insure compliance by the sublicensees, if
any.
ARTICLE
VI
CONFIDENTIALITY
6.1 Licensee
agrees to protect and safeguard the Algae Biomass Technology, Intellectual
Property, and Improvements ("Confidential Information") against unauthorized
publication or disclosure by the same procedures utilized by Licensee in regard
to its own confidential information, and agrees not to use any of the
Confidential Information except for such purposes and licenses as are authorized
and granted by this License Agreement. Licensee further agrees that the
Confidential Information will be disclosed only to such of Licensee's employees,
sublicensees, agents, or contractors as have need for such Confidential
Information in furtherance of the purposes for which Licensee is authorized to
use it. Licensee will cooperate with Licensor in the enforcement of any secrecy
agreement executed by such persons and will insure that all sublicensees,
employees, and others to whom Licensee discloses Confidential Information
executes such a secrecy agreement. Failure of Licensee to enforce
such a secrecy agreement shall constitute a substantial breach of this License
Agreement.
6.2 Subject
to the rights of the Licensor and Licensee pursuant to the licenses granted in
Article II, the parties agree to receive and hold in confidence the Confidential
Information . The provisions of this paragraph shall not be applicable with
respect to any portion of the Confidential Information which:
12
Vertigro
Algae Technologies LLC
a) is, or shall have been in the
possession of disclosee prior to the first disclosure by discloser thereof to
disclosee;
b) is, or
through no fault of the disclosee, becomes published or otherwise available to
others or the public under circumstances such that such others or the public may
utilize the Confidential Information without any direct or indirect obligation
to Licensor or Licensee;
c) is, or
at any time may be, acquired by the disclosee from any third party rightfully
possessed of the Confidential Information having no direct or indirect
obligation to the discloser with respect to such Confidential Information;
or
d) is,
necessarily disclosed through the sale of the Licensed Products pursuant to this
License Agreement.
ARTICLE
VII
INFRINGEMENT
BY OTHERS; PROTECTION OF PATENTS
7.1 Licensor
and Licensee shall each promptly inform the other of any suspected infringement
of any Intellectual Property by a third party, and Licensor and Licensee each
shall have the right to institute an action for infringement of the Patent
Rights against such third party in accordance with the following
procedure:
a) Licensee
shall have the right to institute suit in its name. Licensee shall bear the
entire cost thereof, including attorneys' fees, and shall be entitled to retain
the entire amount of the recoveries, if any, whether by judgment, award, decree
or settlement, subject to Licensor's right of approval of any provisions
relating to the validity and/or infringement of the Patent Rights and provided,
however, that Licensor shall be paid any Running Royalties for Net Sales
recovered by Licensee in such action. Licensee shall exercise control over such
actions; provided, however, that Licensor may, if it so desires, be represented
by counsel of its own selection, the fees for which counsel shall be borne by
Licensee.
b) If
Licensee determines not to institute a suit and in the event that Licensor and
Licensee agree to institute suit jointly, the suit shall be brought in both
their names, the cost thereof, including attorneys' fees, shall be borne by
mutual agreement and in the event the parties cannot reach mutual agreement,
then the cost thereof shall be borne equally. The recoveries, if any, whether by
judgment, award, decree or settlement, shall be shared in proportion to the
costs borne by each party. Licensor’s share of the costs of such suit shall be
deducted, at Licensor’s option, from Royalties payable to Licensor pursuant to
Article III. Licensee shall exercise control over such actions; provided,
however, that Licensor may, if it so desires, be represented by counsel of its
own selection, the fees for which counsel shall be borne by
Licensee.
13
Vertigro
Algae Technologies LLC
(c) In
the absence of agreement to institute a suit jointly and if Licensee determines
not to institute a suit, Licensor may institute suit. Licensor shall bear the
cost of such litigation, including attorneys' fees, and shall be entitled to all
recoveries, if any, whether by way of judgment, award, decree or settlement;
provided, however, in the event Licensor does not recover Licensor’s costs of
such litigation from all recoveries of the suit, Licensee agrees to pay Licensor
the difference between Licensor’s costs of such litigation and the costs of such
litigation recovered by way of judgment, award, decree or settlement in the
suit.
7.2 Should
either party commence a suit under the provisions of Paragraph 7.1 and
thereafter elect to abandon the same, it shall give timely notice to the other
party who may, if it so desires, continue prosecution of such suit; provided,
however, that the sharing of expenses and recovery in such suit shall be agreed
upon between the parties.
ARTICLE
VIII
TERM AND
TERMINATION
8.1 This
License Agreement shall continue in full force and effect, unless terminated as
provided in this Article VIII. If the matter is submitted to binding mediation
and arbitration pursuant to Article XII, then this License Agreement shall not
be terminated while the arbitration is pending and before the arbitrator's final
decision has been rendered.
8.2 Notwithstanding
anything to the contrary contained in this License Agreement, Licensee shall
have the absolute right to terminate this License Agreement by notifying
Licensor in writing, discontinuing sales and paying any Royalties
due.
8.3 In
the event Licensee commits a substantial breach of any of the provisions of this
License Agreement, Licensor shall provide written notice of the substantial
breach to Licensee. If such breach is capable of being remedied or made good,
Licensee shall have ninety (90) days to remedy or make good such breach or to
submit the matter to binding mediation and arbitration pursuant to Article XII.
If such breach is remedied within such time period, this License Agreement shall
continue in full force and effect. If such breach is not remedied within such
time period, Licensor may terminate this License Agreement upon a further ten
(10) days written notice. Any dispute as to whether a material breach has
occurred, or whether it has subsequently been cured, shall be referred to
arbitration pursuant to Article XII. If the matter is submitted to binding
mediation and arbitration pursuant to Article XII, then this License Agreement
shall not be terminated while the arbitration is pending and pending the
arbitrator's final decision.
14
Vertigro
Algae Technologies LLC
8.4 This
License Agreement shall automatically terminate if Licensee shall become
bankrupt, or if a receiver shall be appointed for all of the property or assets
of Licensee, or if Licensee shall make a general assignment of its obligations
with its creditors, or if Licensee files for bankruptcy protection.
8.5 Licensor
shall have the right to terminate this License Agreement upon the failure of
Licensee to pay the 2009 Adjustment Royalty, 2010 Adjustment Royalty or Adjusted
Royalty pursuant to Paragraphs 3.7-3.9. If the matter is submitted to binding
mediation and arbitration pursuant to Article XII, then this License Agreement
shall not be terminated while the arbitration is pending and until the
arbitrator's final decision.
8.6 Licensor
shall not have the right to terminate this License Agreement for any reason
other than as provided for under this License Agreement.
8.7 Upon
termination of this License Agreement pursuant to the foregoing provisions of
this Article VIII, the license granted hereunder shall terminate, and Licensee
shall have no duty to pay the Royalties pursuant to Article III. Any Royalties
accrued but not paid as of the date of such termination shall be paid to
Licensor within thirty (30) days after such termination.
8.8 Upon
termination of this License Agreement pursuant to the foregoing provisions of
this Article VIII, the rights and licenses granted to Licensee hereunder shall
terminate and Licensee shall assign to Licensor all sublicenses
granted pursuant to Paragraph 2.2 such that all Royalties to be paid by
Sublicensees thereafter shall be paid directly to Licensor.
8.9 Irrespective
of the existence of an issued and unexpired Patent Rights and upon termination
of this License Agreement, Licensee may complete and sell any Licensed Products
produced or sold by Licensee on hand at the time of termination; provided that
Licensee shall continue to account for and pay Running Royalties thereon as if
the License Agreement had not been terminated. Notwithstanding the above,
Licensee shall have no right and license to sell Licensed Products six months
after the effective date of the termination of this License
Agreement.
8.10 The
duties and obligations of the parties pursuant to Paragraphs 6.1, 6.2, 8.8 and
8.9 shall survive any termination of this License Agreement,
15
Vertigro
Algae Technologies LLC
ARTICLE
IX
ASSIGNMENT
AND SALE
9.1 Upon
written notice to Licensee, Licensor shall have the right to sell, transfer or
assign its interest in this License Agreement without the prior written consent
of the Licensee, provided, however, PG and WPV shall have the right to transfer
and assign rights, privileges and interests in this License Agreement to each
other or their Affiliates without the consent of Licensee upon providing
Licensee prior notice. The Royalties payable under Article III of this agreement
are not otherwise transferable by Licensor to a third party during the term of
this License Agreement without the consent of Licensee, which will not be
unreasonably withheld, provided however, that Licensee’s prior written consent
shall be required in the case of a proposed transfer or sale to a current
competitor or existing customer.
9.2 Licensee’s
prior written consent shall be required in the event Licensor desires to offer
to sell or assign all or any part of its rights, privileges and interests in
this License Agreement or to the Intellectual Property to a current competitor
or existing customer. In the event Licensor desires to sell or assign
to an entity other than PG or WPV or their Affiliates or to a current competitor
or existing customer, all or any part of its rights, privileges and interests in
this License Agreement or to the Intellectual Property, Licensor shall first
offer ("Right of First Offer") such assignment to Licensee by notifying Licensee
in writing of the terms and conditions upon which Licensor would be willing to
make such as assignment; and Licensee shall have the right to acquire said
rights, privileges and interests of Licensor by accepting the offer in
accordance with said terms and conditions or equivalent cash. If within fifteen
(15) days after receipt of Licenser's notice, Licensee advises Licensor of its
acceptance of the offer as stated in the notice, Licensor agrees to promptly
make the assignment to Licensee on the stated terms and conditions and shall
have an additional thirty (30) business days, if the assignment price is less
than $1 Million Dollars and sixty (60) days if the assignment price is over $1
Million Dollars, to pay for the same with delivery against
payment.
9.3 If
within fifteen (15) days after receipt of Licensor's notice, Licensee does not
indicate its acceptance of the offer as stated in the notice, Licensor shall
thereafter have the right, subject to the prior written consent of Licensee, to
make the assignment or sale to another person, firm or corporation on the same
terms and conditions as stated in the notice. Should the Licensee not exercise
its Right of First Offer and should the contemplated assignment or sale not be
completed within ninety (90) days from the date of Licensor's notice, or should
the terms and conditions thereof be altered in any way that results in less
desirable terms than those set forth in the Licensor’s notice, this Right of
First Offer shall be reinstated in any subsequent proposed assignment, or the
altered terms and conditions for the current transaction, must again be offered
by Licensor in accordance with the terms of Paragraph 9.2.
16
Vertigro
Algae Technologies LLC
9.4 Immediately
prior to Licensor going into bankruptcy, Licensee shall have a Right of First
Offer on any of Licensor's assets at fair market value.
9.5 It
is hereby agreed that prior to sale to a third party contemplated pursuant to
Paragraphs 9.2 and 9.3 above, the third party purchaser shall agree to be fully
bound by the terms of this License Agreement and to assume all of Licensor's
obligations to Licensee thereunder.
9.6 Upon
notice to Licensor, Licensee shall have the right to sell, transfer and/or
assign this License Agreement to an Affiliate without the prior written consent
of the Licensor, which will not be unreasonably withheld, provided however, that
Licensee’s prior written consent shall be required in the case of a proposed
sale, transfer and/or assignment to a current competitor or existing customer of
Licensor, and provided that Licensee is in good standing under this License
Agreement and the transferee or assignee assumes all obligations of Licensee to
Licensor under this License Agreement. written consent of the
Licensor
ARTICLE
X
REPRESENTATIONS
AND WARRANTIES
10.1 Licensor
hereby represents and warrants to Licensee that PG is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Texas, USA and that WPV is a corporation duly organized, validly
existing and in good standing under the laws of Canada. Licensor further
represents and warrants that it has not heretofore made any license, commitment
or agreement, or will Licensor make any license, commitment or agreement for the
term of this License Agreement which is inconsistent with this License Agreement
and the rights granted herein, and that it has full and complete power and
authority to enter into and carry out its obligations under this License
Agreement and under any agreements and documents which may be executed in
connection herewith. Licensor represents and warrants that to the best of its
knowledge, the Patent Rights do not infringe upon the proprietary rights or
patents of any third party. Licensor represents that to the best of its
knowledge, Licensor is not aware of any regulations or laws in the Territory
that might presently apply such that the sales potential of any of the Licensed
Product is limited or reduced through legal violation or potential violation.
Licensor agrees to indemnify and hold Licensee harmless of any liabilities,
costs and expenses (including attorneys' fees and expenses), obligations and
causes of action arising out of or relating to any breach of the representations
and warranties made by Licensor herein.
10.2 Licensor
does not represent and warrant to Licensee that patents will issue or be granted
on any of the Patent Rights; or that any of the marks associated with the
Licensed Product are registrable as a trademark; or that any of the Know-How is
copyrightable. Further Licensor does not represent and warrant to Licensee that
any of the Intellectual Property has commercial value.
17
Vertigro
Algae Technologies LLC
10.3 Licensee
hereby represents and warrants to Licensor that Licensee is a corporation duly
organized, validly existing and in good standing under the laws of Texas, USA.
Licensee further represents and warrants that it has not heretofore made any
license, commitment or agreement, or will Licensee make any license, commitment
or agreement for the term of this License Agreement which is inconsistent with
this License Agreement and the rights granted herein, and that it has full and
complete power and authority to enter into and carry out its obligations under
this License Agreement and under any agreements and documents which may be
executed in connection herewith. Licensee represents and warrants that it is
Licensee's policy not to misappropriate or violate the proprietary trade secret
or confidential information of third parties. Licensee agrees to indemnify and
hold Licensor harmless of any liabilities, costs and expenses (including
attorneys' fees and expenses), obligations and causes of action arising out of
or relating to any breach of the representations and warranties made by Licensee
herein.
ARTICLE
XI
PRODDUCT
QUALITY AND PRODUCT LIABILITY
11.1 Licensee
agrees that the Licensed Product will be produced in compliance with all
federal, state and local laws of each nation, territory or jurisdiction where
the Licensee or Sublicensees sell or produce the Licensed Product.
11.2 Licensee
shall carry Product liability insurance in an amount commensurate with the risks
connected with the production and sale of the Licensed Product. Such insurance
shall name Licensor and ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ of the Patent Rights as co-insureds.
As proof of insurance, Licensee shall submit to Licensor a certificate of
insurance naming Licensor and the inventors of the Patent Rights as insured
parties and shall require the Licensee's insurer to notify Licensor upon the
failure to pay premiums due under the policy. This submission shall be made
prior to any Licensed Product being distributed or sold.
11.3
Licensee agrees to indemnify and hold Licensor harmless against any and
all claims, liabilities, losses, expenses, fees, including without limitation
attorneys' fees, damages, including without limitation amounts of judgment
and/or amounts paid in settlement or costs (all of the foregoing being
collectively called "Costs") incurred by it and arising out of or attributable
to the production and sale of Licensed Product and Ancillary
Products; provided, however, that such indemnity shall be null and
void as to any cause of action, which can be shown by Licensee that Licensor
knew or should have known and failed to timely inform Licensee of such cause of
action. Promptly after receipt of notice of the commencement of any action or
assertion of any claim against Licensor in respect of which indemnification be
sought, Licensor shall notify Licensee in writing of the commencement of such
action or assertion of such claim. Upon receipt of the notice of commencement of
suit or assertion of such claim, Licensee shall notify Licensor within fifteen
(15) days that Licensee shall appear and defend (including the sole authority to
compromise and settle such claims; provided, however, that such settlement or
compromise does not affect in any way the activities or rights of Licensor)
against any such suit or claim at Licensee's expense, with an attorney of its
choice. In the event Licensee shall fail to give notice of and undertake to
appear and defend within such fifteen (15) day period, then it is hereby
expressly agreed that the right to appear and defend by Licensee has been
waived, and Licensor shall proceed on its sole authority, at Licensee's
expense.
18
Vertigro
Algae Technologies LLC
ARICLE
XII
MEDIATION
AND ARBITRATION AGREEMENT
12.1 If
a dispute arises between the parties regarding this Agreement, the parties agree
to resolve the dispute in the following manner:
a) Negotiation
1) The
parties shall attempt in good faith to resolve any dispute arising out of or
relating to this Agreements promptly by negotiation between executives of the
parties who have authority to settle the controversy. Any party may give the
other party written notice of any dispute not resolved in the normal course of
business. Within 15 days after delivery of the notice, the receiving party will
submit to the other a written response. The notice and the response will include
(i) a statement of each party's position and a summary of arguments supporting
that position, and (ii) 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 disputing party's notice, the executives of both
parties will meet at a mutually acceptable time and place, and thereafter as
often as they reasonably deem necessary, to attempt to resolve the dispute. All
reasonable requests for information made by one party to the other will be
honored.
2) All
negotiations pursuant to this clause are confidential and will be treated as
compromise and settlement negotiations for purposes of applicable rules of
evidence.
(b) Non-binding
Mediation.
If the
dispute has not been resolved by negotiation within 60 days of the disputing
party's notice, or if the parties failed to meet within 45 days, the parties
will endeavor to settle the dispute by mediation under the presently effective
Center for Public Resources ("CPR") Model Procedure for Mediation of Business
Disputes. The neutral third party will be selected from the CPR Panels of
Distinguished Neutrals with the assistance of CPR.
19
Vertigro
Algae Technologies LLC
(c) Arbitration.
Any
controversy or claim arising out of or relating to this License Agreement, or
the enforcement, breach, termination or validity thereof, that has not been
resolved by mediation pursuant to the preceding paragraph within 90 days from
the appointment of a neutral third party will be settled by arbitration in
accordance with the CPR Rules for Non-Administered Arbitration of Business
Disputes in effect on the date of this License Agreement, by a sole arbitrator.
If the parties cannot agree upon an arbitrator for a panel recommended by CPR,
then CPR will select the arbitrator. Any other choice of law clause to the
contrary in this License Agreement notwithstanding, the arbitration will be
governed by the United States Arbitration Act, 9 U.S.C. § 1-16, and judgment
upon the award rendered by the Arbitrator may be entered by any court having
jurisdiction thereof. The place of the arbitration will be Houston, Texas.
Insofar as the proceeding relates to patents, it will also be governed by 35
U.S.C. 294, to the extent applicable. The arbitrator is not empowered to award
trebled, punitive or any other damages in excess of compensatory damages, and
each party irrevocably waives any claim to recover any such damages. The
arbitrator will make a reasoned award. If the result achieved in arbitration by
the party instituting the arbitration is not more favorable to that party than
the last offer made by the other party during the mediation, the former party
will reimburse the legal fees, expert fees and other expenses reasonably
incurred by the latter in the arbitration.
ARTICLE
XIII
GENERAL
13.1 Binding Agreement.
This License Agreement shall be binding upon the successors and assigns of the
parties hereto. Nothing contained in this License Agreement shall be
construed to place the parties in the relationship of legal representatives,
partners, or joint venturers.
13.2 Applicable Law. This
License Agreement shall be construed, interpreted and applied in accordance with
the laws of the State of Texas.
13.3 Notices. All notices,
demands or other writings in this License Agreement provided to be given or made
or sent, or which may be given or made or sent, by either party hereto to the
other, shall be deemed to have been fully given or made or sent when made in
writing and deposited in the United States mail, first class, postage prepaid,
sent certified or registered mail, and addressed to the addresses first
hereinabove given or at such other address as either party hereto may specify by
notice given in accordance with this paragraph.
20
Vertigro
Algae Technologies LLC
13.4 Waiver. Each party
covenants and agrees that if the other party fails or neglects for any reason to
take advantage of any of the terms hereof providing for the termination of this
License Agreement, or if, having the right to declare this License Agreement
terminated, such other party shall fail to do, any such failure or neglect shall
not be or be deemed or be construed to be a waiver of any subsequently occurring
cause for the termination of this License Agreement, or as a waiver of any of
the terms, covenants or conditions of this License Agreement or the performance
thereof. None of the terms, covenants or conditions of this License Agreement
can be waived except by the written consent of the waiving
party. Except as otherwise stated herein, each of the parties hereby
waives any claims which it might have against the other prior to the date of
execution of this License Agreement.
13.5 Force Majeure.
Neither party hereto shall be liable to the other party for failure or delay in
the performance of any duties or obligations hereunder or in making shipments of
Licensed Product produced hereunder due to strikes, lockouts, acts of God, acts
of war, fire, flood, explosions, embargo, litigation or labor disputes,
Government or any other laws and regulations, or any other cause beyond the
control or without the fault of such party.
13.6 Scope of Agreement.
This License Agreement constitutes the entire agreement between the parties
pertaining to the subject matter hereof.
13.7 Construction. The
parties acknowledge that each party and its counsel have reviewed and revised
this License Agreement and that the normal rule of construction to the effect
that any ambiguities are to be resolved against the drafting party shall not be
employed in the interpretation of this License Agreement or any amendments or
exhibits hereto.
13.8 Headings. The subject
headings of the paragraphs of this License Agreement are included for purposes
of convenience only, and shall not effect the construction or interpretation of
any of its provisions.
13.9 Counterparts. This
License Agreement may be executed in one or more counterparts, and also executed
shall constitute one agreement, binding on both parties hereto, notwithstanding
that both parties are not signatory to the same counterpart.
13.10 Severability. If any
part or parts of this License Agreement are found to be illegal or
unenforceable, the remainder shall be considered severable, shall remain in full
force and effect, and shall be enforceable.
13.11
Further
Documents. Each of the parties shall take all necessary actions,
including the execution and delivery of all necessary documents or instruments,
as may be reasonably requested by the other party in order to effectuate the
intent of this License Agreement.
21
Vertigro
Algae Technologies LLC
13.12 Entire Agreement.
This License Agreement, including any exhibits hereto, constitutes the entire
agreement of the Parties with respect to the subject matter of this License
Agreement and supersedes all previous communications, representations,
understandings and agreements, whether oral or written, between the Parties with
respect to the subject matter hereof. For the avoidance of doubt, the
Letter of Agreement between Global Green Solutions Inc., Valcent Products Inc.,
PG and WPV dated June 25, 2007 is hereby superseded and restated in its entirety
as set forth herein, and the Letter of Agreement dated June 25, 2007 is
terminated and of no further force and effect. Further, the parties
hereto release each other from any obligations under Letter of Agreement dated
June 25, 2007.
IN
WITNESS WHEREOF, the parties hereto have executed this License Agreement in
duplicate originals, individually, or by their duly authorized officers or
representatives, as of the date of the last party to execute this Technology
License and Royalty Holders Agreement.
| Vertigro Algae Technologies, LLC. | Valcent Products Inc. | ||||
| Signed: |
/s/
▇▇▇▇ ▇▇▇▇▇▇
|
Signed: |
/s/
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
|
||
| Name: |
▇▇▇▇
▇▇▇▇▇▇
|
Name: |
▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
|
||
| Title: |
President
and CEO
|
Title: |
President
and CEO
|
||
| Date: | Date: | ||||
| Pagic LP | West Peak Ventures of Canada | ||||
| Signed: | Signed: | ||||
| Name: | Name: | ||||
| Title: | Title: | ||||
| Date: | Date: | ||||
ACCEPTANCE AND AGREEMENT
The first Recital and Paragraphs 4.2,
5.1 and 11.2 are acceptable and agreed to by ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇.
Signed:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, Individually
Date:_________________
22
Vertigro
Algae Technologies LLC
EXHIBIT
“A”
DESCRIPTION
OF THE LICENSED TECHNOLOGY
The
“LICENSED TECHNOLOGY” shall mean a technology that involves the use of a series
of thin membrane photo-bioreactors that are configured in a manner to facilitate
rapid growth of various forms of micro-algae. Each photo-bioreactor is designed
to allow the proper flow of nutrient rich food source and carbon dioxide
(CO2)
enhanced gases and water through the thin membrane photo-bioreactors. The gas is
mixed in the reactor by the design elements that are employed. Further, the
design of the photo-bioreactor allows the reactors to be closely stacked in a
manner that allows sunlight to penetrate to all levels of the reactor. The
overall design of the system allows the high yield, rapid production of various
forms of algae biomass.
The algae
biomass is then harvested and the target oil extracted. Depending on the species
and strain of algae used, a yield of as much as 50% of the dry weight of the
algae biomass is high quality recoverable oil. The oil is of a quality suitable
as a feedstock for production of bio-diesel and bio-fuels.
The algae
biomass, depending on the species and strain of algae, will produce biomass
which can be used as raw material feedstock for other applications, including
but not limited to, pharmaceutical, health, food, cosmetic and agricultural
applications.
The
Licensee’s initial commercialization and business objective and use of the Algae
Biomass Technology is to be considered as a renewable energy source to deliver
competitive and economic commercial volumes of bio-diesel and standard vegetable
oil feedstock as a primary product in a form that is economically viable. The
Licensee’s economics will also depend on the secondary products produced by the
Algae Biomass Technology comprising the algae biomass.
A-1
Vertigro
Algae Technologies LLC
EXHIBIT
“B”
PATENTS
AND APPLICATIONS
|
File
No.:
|
2405-01800
Country:
Serial No.:
File Date:
For:
|
United
States
60/804,763
June
14, 2006
Method
and Apparatus for CO2
Sequestration
|
|
File
No.:
|
2405-01801
Country:
Serial No.:
Receipt Date:
For:
|
United
States
60/892,331
▇▇▇▇▇
▇, ▇▇▇▇
▇▇▇▇▇▇
and Apparatus for CO2
Sequestration
|
|
File
No.:
|
2405-01802 (US)
Country:
Serial No.:
File
Date:
For:
|
United
States
11/762,295
June
13, 2007
Method
and Apparatus for CO2
Sequestration
|
|
File
No.:
|
2405-01803
Country:
Serial No.:
File Date:
For:
|
Patent
Cooperation Treaty
PCT/US2007/071165
June
14, 2007
Method
and Apparatus for CO2
Sequestration
|
|
File
No.:
|
2405-01804
Country:
Serial No.:
File Date:
For:
|
Argentina
070102583
June
13, 2007
Method
and Apparatus for CO2
Sequestration
|
|
File
No.:
|
2405-01805
Country:
Serial No.:
File Date:
For:
|
GCC
(Middle East)
2007/8509
June
13, 2007
Method
and Apparatus for CO2
Sequestration
|
|
File
No.:
|
2405-01806
Country:
Serial No.:
File Date:
For:
|
Jamaica
18/1/4639
June
11, 2007
Method
and Apparatus for CO2
Sequestration
|
B-1
Vertigro
Algae Technologies LLC
|
File:
|
2405-01807
Country:
Serial
No.:
File Date:
For:
|
Malaysia
PI
20070930
June
12, 2007
Method
and Apparatus for CO2
Sequestration
|
|
File
No.:
|
2405-01808
Country:
Serial No.:
File Date:
For:
|
Panama
87311
August
7, 2007
Method
and Apparatus for CO2
Sequestration
|
|
File
No.:
|
2405-01809
For:
|
Method
and Apparatus for CO2
Sequestration
Unfiled
|
|
File
No.:
|
2405-02000
For:
|
Method and Apparatus
for Algae
Separation
Unfiled
|
|
File
No.:
|
2405-02500
For:
|
Algae
Plants
Unfiled
|
|
File
No.:
|
2405-03200
For:
|
Auto-Pipetting
with Flow Cytometry System
Unfiled
|
B-2
Vertigro
Algae Technologies LLC
EXHIBIT
“C”
TRADEMARKS
VERTIGRO
Commercialization
Trademark
a) Licensor
shall file a trademark application to register the “Vertigro”
trademark.
b) Licensee may
market the Licensed Product using the trademark “Vertigro”.
c) Licensee
may develop and use other derivations of the “Vertigro” trademark
d) Licensor
agrees that Licensee can use of the trademark name “Vertigro” and incorporate
the trademark “Vertigro” in the company name, i.e., Vertigro Algae Technologies,
LLC, without claim or recourse.
C-1