CONFIDENTIAL
Volume License Agreement
Between
Syntroleum Corporation
and
▇▇▇▇-▇▇▇▇▇ CORPORATION
CONFIDENTIAL INFORMATION:
Use and distribution of this document is limited to the terms and conditions of
the License Confidentiality Agreement dated June 13, 1997 between Syntroleum
Corporation and ▇▇▇▇-▇▇▇▇▇ CORPORATION.
VOLUME LICENSE AGREEMENT
THIS LICENSE AGREEMENT is made and entered into as of 10:00 a.m.
Central Standard Time on this 4th day of February, 1998 by and between
Syntroleum Corporation, an Oklahoma corporation ("Licensor"), and ▇▇▇▇-▇▇▇▇▇
Corporation, a Delaware corporation ("Licensee").
RECITALS
A. WHEREAS, Licensor has developed and owns certain patent rights
and technical information relating to the Conversion Process; and
B. WHEREAS, Licensee desires to enter into a non-exclusive limited
license with Licensor to use Licensor Patent Rights and Licensor Technical
Information in practicing the Conversion Process in Licensed Facilities in
the Licensed Territory.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this Agreement, the Parties agree as follows:
1. DEFINITIONS
The following terms (whether or not underscored) when used in this
Agreement, including its preamble and recitals, shall, except where the
context otherwise requires, have the following meanings (such meanings to be
equally applicable to the singular and plural forms thereof).
1.01 "AFFILIATE" means, with respect to each Party, any Person in which the
Party or its parent company(ies) (one or more parent companies in an upward
series) shall at the time in question directly or indirectly own a fifty
percent (50%) or more interest in such Person. It is understood that: (i) a
Party or its parent company(ies) directly owns a fifty percent (50%) or more
interest in a Person if that Party or its parent company(ies)
individually or collectively hold(s) shares carrying fifty percent (50%) or
more of the voting power to elect directors or other managers of such Person
and (ii) a Party or its parent company(ies) indirectly owns a fifty percent
(50%) or more interest in a Person if a series of companies can be specified
beginning with a Party or its parent company(ies), individually or
collectively, and ending with such Person so related that each company of the
series, except such Person, directly owns a fifty percent (50%) or more
interest in a later company in the series.
1.02 "AGREEMENT" means this Volume License Agreement.
1.03 "BARREL" means forty-two (42) gallons of two hundred thirty-one (231)
cubic inches each, measured at sixty degrees Fahrenheit (60DEG.F) and one (1)
atmosphere pressure.
1.04 "CHAIN-LIMITING CATALYST" means a type of catalyst for use in a
▇▇▇▇▇▇▇-Tropsch Reaction the primary products of which are predominately
hydrocarbon molecules of twenty (20) or fewer carbon atoms which remain
liquid at ambient temperature and pressure.
1.05 "CONFIDENTIAL INFORMATION" means information of Licensor or Licensee
disclosed to the other Party under this Agreement, including any formula,
pattern, compilation, program, apparatus, device, drawing, schematic, method,
technique, know-how, process or pilot plant data, and other non-public
information such as business plans or other technology that: (a) derives
economic value, actual or potential, from not being generally known to, and
not being readily ascertainable by proper means by, other persons who can
obtain economic value from its disclosure or use, and (b) is the subject of
efforts that are reasonable under the circumstances to maintain its secrecy,
which information shall be disclosed in writing and labeled as "Confidential"
or the equivalent, or if disclosed verbally or in other non-written form,
identified as such at the time of disclosure and thereafter summarized in
writing by the disclosing Party within thirty (30) days of such initial
disclosure. Confidential Information includes, without limit, Licensor
Catalyst Information, Licensor Technical Information, and Licensee Technical
Information.
1.06 "CONFIDENTIALITY AGREEMENT" means, collectively, the agreements between
Licensee and Licensor, dated May 28, 1997 and June 13, 1997.
1.07 "CONVERSION PROCESS" means any process for the conversion of normally
gaseous hydrocarbons into a mixture of hydrocarbons which may be a combination
of normally gaseous, liquid, or solid hydrocarbons at ambient temperatures and
pressures and comprised of (a) autothermal reforming of a feed stream consisting
substantially of gaseous hydrocarbons in the presence of air, or oxygen-enriched
air to create an intermediate feed stream containing carbon monoxide and
molecular hydrogen, and (b) reacting the intermediate stream in the presence of
a ▇▇▇▇▇▇▇-Tropsch catalyst to produce a product stream consisting of any
combination of gaseous, liquid or solid hydrocarbons at ambient temperature and
pressure. The Conversion Process includes all associated internal processes and
technologies such as heat integration, separation, or the recycle, use, or
consumption of hydrocarbons or other products. The Conversion Process does not
include any technology related to (i) pre-treatment of the natural gas feedstock
or (ii) post-processing the ▇▇▇▇▇▇▇-Tropsch product stream for a purpose other
than that defined above.
1.08 "EFFECTIVE DATE" means the date set forth in the first paragraph of this
Agreement.
1.09 "▇▇▇▇▇▇▇-TROPSCH CATALYST" means any catalyst for use in a
▇▇▇▇▇▇▇-Tropsch Reaction including, but not limited to, Chain Limiting
Catalyst and High Alpha Catalyst.
1.10 "▇▇▇▇▇▇▇-TROPSCH REACTION" means the catalytic reaction of carbon
monoxide and hydrogen, the primary products of which are hydrocarbons.
1.11 "HIGH ALPHA CATALYST" means a type of ▇▇▇▇▇▇▇-Tropsch Catalyst, whose
alpha number, as calculated by the ▇▇▇▇▇▇-▇▇▇▇▇ distribution equation, is 0.85
or higher.
1.12 "INVENTIONS OR IMPROVEMENTS" means any process, formula, composition,
device, catalyst (including both autothermal reforming catalysts and
▇▇▇▇▇▇▇-Tropsch Catalysts), apparatus, technology, know-how, operating
technique, improvement, modification, or enhancement relating to the use,
operation, or commercialization of the Conversion Process and the products
(including Synthetic Product) of the Conversion Process, which is discovered,
made, designed, developed or acquired by Licensee, solely or with others,
since the date of the Confidentiality Agreement, or used in a Licensed Plant,
in each instance whether patentable or not, including, without limitation,
patents, copyrights, and Confidential Information and further including the
full scope and content of the intellectual and tangible property included
therein and produced therefrom, e.g., drawings, prints, chemical formulae,
prototypes, data, computer programs and software, and the like. Inventions or
Improvements shall not include any information relating to methods of
manufacturing catalysts for use in the Conversion Process.
1.13 "LICENSE FEE" means the fee paid by Licensee to Licensor, as
consideration for granting a license pursuant to a Site License Agreement to
use Licensor Technology at a Licensed Plant, as calculated in accordance with
ATTACHMENT 3 of this Agreement, and does not include fees related to the
purchase of the associated Process Design Package for such Licensed Plant,
any catalyst or any catalyst markup.
1.14 "LICENSED FACILITIES" means one or more Licensed Plants.
1.15 "LICENSED PLANT" means a plant (including modification, expansion or
replacement thereof) licensed to operate pursuant to a Site License Agreement
issued under the terms of this Agreement, at a site or sites, where such site
or sites are deemed to be within the same lease or concession, within the
Licensed Territory with a design production capacity measured in Barrels of
Synthetic Product per day, using or designed to use Licensor Technology to
practice the Conversion Process to produce Marketable Products.
1.16 "LICENSED TERRITORY" means all the countries of the world and their
respective territorial waters, except for United States of America, Canada,
Mexico, the People's Republic of China, India, and any country that, from
time to time, may be prohibited or
restricted by the United States Government from receiving Licensor Technology
or the products thereof.
1.17 "LICENSEE PATENT RIGHTS" means all rights with respect to patents and
patent applications of all relevant countries to the extent that the claims
cover features or aspects of Inventions or Improvements practiced in a
Licensed Plant (specifically excluding United States Patent No. 5,593,569
issued January 14, 1997 and United States Patent Application Serial No.
08/775,552 filed January 2, 1997), in each case to the extent that, and
subject to the terms and conditions under which, Licensee has the right to
grant licenses, immunities or licensing rights without having to make payment
to others.
1.18 "LICENSEE TECHNICAL INFORMATION" means all unpatented
Inventions or Improvements practiced in a Licensed Plant (specifically
excluding United States Patent No. 5,593,569 issued January 14, 1997 and
United States Patent Application Serial No. 08/775,552 filed January 2,
1997), in each case to the extent that, and subject to the terms and
conditions under which, Licensee has the right to grant licenses, immunities
or licensing rights without having to make payment to others.
1.19 "LICENSOR CATALYST INFORMATION" means, without limit, information
relating to any catalyst, catalyst formulation, conditioning procedure,
start-up procedure, regeneration procedure, or performance considered to be
proprietary by and to Licensor or acquired by Licensor which is useful in the
practice of the Conversion Process and which has been used commercially or is
ready for commercial use. Licensor Catalyst Information shall not include any
information relating to methods for manufacturing catalysts for use in the
Conversion Process.
1.20 "LICENSOR CATALYST PATENT RIGHTS" means all rights with respect to
patents and patent applications of all relevant countries to the extent that
the claims cover features or aspects of catalysts useable in the Conversion
Process (including, without limitation, autothermal reforming catalysts and
▇▇▇▇▇▇▇-Tropsch Catalysts) and expressly excluding any process operating
techniques or apparatus or methods for manufacturing such catalysts,
which are acquired by Licensor (with right to sublicense) or are based on
inventions conceived by Licensor prior to termination of this Agreement; in
each case to the extent that, and subject to the terms and conditions,
including the obligation to account to and/or make payments to others, under
which Licensor has the right to grant licenses, sublicenses, immunities or
licensing rights.
1.21 "LICENSOR PATENT RIGHTS" means all rights with respect to patents and
patent applications of all relevant countries to the extent that the claims
cover features or aspects of the Conversion Process (including, without
limitation, any operating techniques and apparatus and expressly excluding
Licensor Catalyst Patent Rights) which are acquired by Licensor (with right
to sublicense) or are based on inventions conceived by Licensor prior to
termination of this Agreement; in each case to the extent that, and subject
to the terms and conditions, including the obligation to account to and/or
make payments to others, under which Licensor has the right to grant
licenses, sublicenses, immunities or licensing rights.
1.22 "LICENSOR TECHNICAL INFORMATION" means all unpatented information
relating to the Conversion Process (including, without limitation, operating
techniques and apparatus for carrying out the Conversion Process and
expressly excluding Licensor Catalyst Information and Reactor Information)
which (a) either (i) has been commercially used or (ii) is in a stage of
development suitable for commercial use, and (b) has been made or acquired by
Licensor (with right to sublicense) prior to the termination of this
Agreement; in each case to the extent that, and subject to, the terms and
conditions, including the obligation to account to and/or make payments to
others, under which Licensor has the right to disclose and grant rights to
others.
1.23 "LICENSOR TECHNOLOGY" includes Licensor Technical Information and
Licensor Patent Rights related to the practice of the Conversion Process and
Licensor Catalyst Information and Licensor Catalyst Patent Rights related to
the use of Licensor catalysts in the practice of the Conversion Process but
expressly excluding the right to make, have made, or sell Licensor Catalysts.
1.24 "LUBRICANTS" means hydrocarbon base oils which can be made into, or
blended with other base oils to be made into, without limit (a) automotive
lubricating oils such as PCMO, HDD, transmission and hydraulic fluids, and
gear oils; (b) industrial lubricants such as metalworking lubricants, process
oils, white oils, agricultural spray oils, de-foamers, cutting and quenching
oils, and rubber processing oils; (c) greases; (d) drilling fluids; or (e)
any other specialty product agreed to by the Parties which is not a
Marketable Product.
1.25 "MARKETABLE PRODUCTS" means finished hydrocarbon fuels, hydrocarbons
consumed as fuel, or fuel blending stocks including, but not limited to,
diesel, kerosene, gasoline, and naphtha processed from Synthetic Product and
expressly excluding waxes, chemicals, Lubricants, or any other specialty
hydrocarbon products and subject to the express condition that Marketable
Products shall be produced from Synthetic Product at the Licensed Plant or
produced from Synthetic Product at a separate facility operated by the
Licensee, its Affiliates, or third Persons who are contractually committed to
Licensee or its Affiliate to produce only Marketable Products from such
Synthetic Product. Notwithstanding the foregoing, Marketable Products shall
be deemed to include any products:
(a) produced at any location by any Person from a blended stream of
Synthetic Product and at least 15% by volume of produced crude
oil or condensate, in which the Synthetic Product, before any
blending,
(i) remains a liquid at sixty degrees Fahrenheit
(60DEG.F) and one (1) atmosphere pressure or,
(ii) has a chemical composition consisting of molecules
having at least 85% by volume of which contain no more
than 20 carbon atoms each and no more than 1% by volume of
which contains more than 40 carbon atoms each; or
(b) produced at any location by any Person from a blended stream of
Synthetic Product and at least 40% by volume produced crude oil
or condensate such that
after blending the mixture is a transportable liquid, expressly
excluding slurries; or
(c) produced by blending individual fractions distilled from Synthetic
Product with at least 50% by volume of like distilled fractions
from produced crude oil or condensate, in which each distilled
fraction from Synthetic Product, before any blending, has a
chemical composition consisting of molecules having at least 85%
by volume of which contain no more than 20 carbon atoms each and
no more than 1% by volume of which contains more than 40 carbon
atoms each, wherein the blending is performed at any location by
the Licensee, its Affiliates, or third Persons who are
contractually committed to Licensee or its Affiliate to produce
only Marketable Products from such Synthetic Product.
Notwithstanding the above language in this SECTION 1.25 hydrocarbons consumed as
fuel by Licensee or its Affiliates at locations which satisfy the conditions of
this SECTION 1.25 are Marketable Products, regardless of whether or not they
happen to be waxes, chemicals, Lubricants, or any other specialty hydrocarbon
products.
1.26 "PARTICIPATING INTEREST" means at least a ten percent (10%) working,
net profits, equity, or other economic interest (an economic interest shall
include an interest in a production sharing contract where the parties to
such contract construct the Licensed Plant), owned directly or indirectly
through another entity, in a Licensed Plant or Person owning or controlling a
Licensed Plant, but excluding a contract for operation of such Licensed Plant.
1.27 "PARTIES" means Licensor and Licensee.
1.28 "PARTY" means Licensor or Licensee.
1.29 "PERSON" means any natural person, corporation, partnership,
limited liability company, firm, association, trust, government, governmental
agency or any other entity, other than the Parties.
1.30 "PROCESS DESIGN PACKAGE" means a compilation of text, figures, drawings
and documentation based on Licensor Technology and relating to the design and
construction of a Licensed Plant, in the form set forth in EXHIBIT B to this
Agreement, which may be modified from time to time by mutual consent of the
Parties, and expressly excluding Reactor Information.
1.31 "REACTOR INFORMATION" means all information, including but not limited
to data, processes, plans, specifications, flow sheets, designs, and
drawings, relating to the internal design or functions including, without
limitation, tube count, tube size and configuration and catalyst volume,
relating to any Licensor autothermal reformer or ▇▇▇▇▇▇▇-Tropsch reactors,
which, at any time during the term of this Agreement, Licensor discloses to
Licensee.
1.32 "REACTOR VENDOR" shall mean those fabricators approved by Licensor to
perform the fabrication and/or maintenance and repair of autothermal reformer
or ▇▇▇▇▇▇▇-Tropsch reactors for installation and use in Licensed Facilities.
Licensor may, from time to time, add or remove any vendor from being a
Reactor Vendor.
1.33 "SITE LICENSE AGREEMENT" means an agreement between the Parties, in
the form attached to this Agreement as ATTACHMENT 4 and which may be modified
from time to time by mutual written consent of the Parties, granting the
right to build and operate a single Licensed Plant, specifying in each case
the fixed site and the nominal design capacity, in Barrels of Synthetic
Product produced per day.
1.34 "START-UP DATE" means the first full calendar day following a five day
period, after completion of catalyst pre-treatment and other preliminary
operations, during which the applicable Licensed Plant produces quantities of
Synthetic Product in an amount equal to at least 75% of the per-day design
production capacity of such Licensed Plant averaged over such five day
period.
1.35 "SYNTHETIC PRODUCT" means those hydrocarbons, having a chemical
composition substantially consisting of molecules with five or more carbon
atoms each, produced using Licensor Technology in the practice of the
Conversion Process at a Licensed Plant.
2. LICENSOR GRANTS TO LICENSEE
2.01 Subject to the terms and conditions of this Agreement, Licensor grants
to Licensee a limited, non-exclusive, non-transferable (except as provided in
SECTION 2.06 and ARTICLE 8) right and license to use Licensor Patent Rights
and Licensor Technical Information to design, construct, operate and maintain
(including modify, expand and replace) Licensed Facilities under a separate
Site License Agreement for each Licensed Plant, to practice the Conversion
Process to manufacture Synthetic Product solely for the purpose of producing,
using, and selling Marketable Products anywhere in the world, provided that
the aggregate maximum daily design capacity of the Licensed Facilities, as
defined in the Process Design Packages for all Licensed Plants which comprise
the Licensed Facilities, shall not exceed 50,000 barrels per day of Synthetic
Product, regardless of Licensee's specific ownership interest in any
particular Licensed Plant.
2.02 Subject to the terms and conditions of this Agreement, Licensor grants
to Licensee a limited, non-exclusive, non-transferable (except as provided in
SECTION 2.06 and ARTICLE 8) right to purchase from Reactor Vendors the
appropriate ▇▇▇▇▇▇▇-Tropsch and autothermal reforming reactors for use in the
practice of the Conversion Process at a Licensed Plant. Licensee shall have
no right to make, have made, or sell any reactor based on Reactor Information
except as expressly provided in this SECTION 2.02.
2.03 Subject to the terms and conditions of this Agreement, Licensor grants
to Licensee (a) the right to purchase from Licensor the appropriate
▇▇▇▇▇▇▇-Tropsch Catalyst and, from either Licensor or a catalyst vendor
designated by Licensor, the appropriate autothermal reforming catalyst for
use in the practice of the Conversion Process at a Licensed Plant to
manufacture Synthetic Product solely for the purpose of producing, using, and
selling Marketable Products anywhere in the world and (b) a limited
non-
exclusive, non-transferable (except as provided in SECTION 2.06 and ARTICLE
8) right and license under Licensor Catalyst Patent Rights and Licensor
Catalyst Information to use such catalysts in the practice of the Conversion
Process at a Licensed Plant to manufacture Synthetic Product solely for the
purpose of producing, using, and selling Marketable Products anywhere in the
world. The purchase price for any catalyst purchased by Licensee from
Licensor shall be equal to the lowest of (a) Licensor's cost to produce or
have produced such catalysts, plus a markup of twenty five percent (25%), or
(b) if, during the twelve (12) month period prior to a catalyst purchase by
Licensee, the same catalyst (at comparable quantities) was sold by Licensor
to a third party at a markup less than twenty five percent (25%), Licensee
shall be entitled to the lower markup for its current catalyst purchase.
Licensor will, no more than once per year, provide Licensee reasonable access
to the relevant books of Licensor to verify the lowest markup for such
catalyst. Licensee shall have no rights to make, have made, or sell any
Licensor ▇▇▇▇▇▇▇-Tropsch Catalyst or autothermal reforming catalyst, which is
proprietary to Licensor. Beyond the initial catalyst fill, for a Licensed
Plant, Licensee will have the right to buy replacement catalyst from other
catalyst suppliers. If Licensor specifies in the Process Design Package an
autothermal reforming catalyst commercially available from a third party,
Licensee shall have the right to purchase such catalyst directly from a third
party.
2.04 In the event Licensor for any reason is unable to supply Licensee with
such amounts of ▇▇▇▇▇▇▇-Tropsch Catalyst as may be reasonably necessary at any
time during the operation of a specific Licensed Plant, Licensor shall provide
to one or more catalyst vendors designated by Licensor the necessary catalyst
recipe, together with a non-exclusive limited license to make and sell such
▇▇▇▇▇▇▇-Tropsch Catalyst to Licensee for use in such Licensed Plant, and
Licensee shall have the right to purchase such ▇▇▇▇▇▇▇-Tropsch Catalyst from
such vendor for use in such Licensed Plant on the same terms (including price)
as set forth in SECTION 2.03.
2.05 Upon Licensee's written request, Licensor will execute a Site License
Agreement with respect to a specific proposed Licensed Plant if:
(a) Licensee has a Participating Interest in the proposed Licensed Plant
as represented in a Request for Site License Agreement (ATTACHMENT 1);
(b) Licensee is current on all payments due under prior Site License
Agreements for all Licensed Facilities under this Agreement in accordance
with their respective terms;
(c) there is not a material default under this Agreement for which
Licensee is responsible resulting from or affecting more than one
Licensed Plant; and
(d) no Person having a Participating Interest in the proposed Licensed
Plant is in material default under any agreement relating to Licensor
Technology.
Until such time as the above conditions are satisfied, Licensee shall have no
right or license to use Licensor Technology at the proposed Licensed Plant.
2.06 During the term of this Agreement, Licensee may extend this Agreement
to any Affiliate, provided that Licensee shall first notify Licensor in
writing of any such extension and the acceptance of such extension by such
Affiliate pursuant to this SECTION 2.06. The Affiliate to which this
Agreement may be extended by Licensee shall be subject to and shall accept in
writing (in the form set forth in ATTACHMENT 2) the same obligations to which
Licensee is subjected under this Agreement and all terms and conditions of
this Agreement shall apply to such Affiliate with respect to its obligations
and its rights (except the right of extension as set forth in this SECTION
2.06) as if such Affiliate had entered into this Agreement with Licensor
effective as of the date of such extension. Licensee warrants to Licensor the
full performance by such Affiliate of the obligations which are imposed upon
such Affiliate as a result of such extension of this Agreement and,
notwithstanding any such extension, Licensee shall still be liable to
Licensor for all sums which become due from such Affiliate to Licensor and
for any default by such Affiliate in the performance of its obligations under
this Agreement.
2.07 Each Licensed Plant shall remain at the initial plant site for a minimum
of seven (7) years from Start-Up Date. Thereafter, Licensee may relocate upon
notification, in the form of EXHIBIT G of the Site License Agreement, to a new
plant site within the Licensed
Territory provided (i) the Licensed Plant remains at the new site for minimum
of seven (7) years and (ii) the Licensed Plant is operating under a fully
paid up Site License Agreement. Notwithstanding the foregoing, Licensed
Plants utilizing gas from leases, concessions, or similar production sharing
arrangements in which Licensee or its Affiliates own at least a ten percent
(10%) working, net profits, equity, or other economic interest (excluding any
interest owned by a governmental entity) may, at any time, be relocated
within the geographic boundaries of any such leases, concessions, or similar
production sharing arrangements. In the event that, at any time after the
Start-up Date of a Licensed Plant, Licensee demonstrates to Licensor's
reasonable satisfaction, which shall include furnishing an opinion from an
independent reservoir engineer agreed to by the Parties, that the natural gas
reserves are insufficient to supply such Licensed Plant for a period of at
least seven (7) years from such Start-up Date, Licensee may relocate upon
notification in the form of EXHIBIT G of the Site License Agreement, to a new
plant site within the Licensed Territory. Upon receipt of such reservoir
engineer's opinion and EXHIBIT G of the Site License Agreement, Licensor will
have sixty (60) days to review the opinion and authorize or object
(specifying the basis for such objection) to such relocation. Nothing in this
Agreement shall prohibit Licensee or its Affiliates from purchasing gas from
other parties to manufacture Synthetic Product at any Licensed Plant pursuant
to this Agreement.
3. TECHNICAL ASSISTANCE
3.01 Licensee shall purchase and Licensor agrees to furnish to Licensee, or to
a contractor designated by Licensee, a Process Design Package for each Licensed
Plant according to the terms specified in SECTION 5.03 of this Agreement.
3.02 Reactor Information necessary for each Licensed Plant shall be excluded
from the Process Design Package. However, those elements of Reactor Information
which are necessary to fabricate such reactors will be provided by Licensor
directly to Reactor Vendors selected by Licensee to manufacture the autothermal
reformer and ▇▇▇▇▇▇▇-Tropsch
reactors from Licensor's then current list of Reactor Vendors. Licensor may,
from time to time, add or remove any Reactor Vendor.
3.03 Except as may be set forth in a Process Design Package, the
obligations of Licensor under this Agreement do not include the performing of
any basic or detailed design, engineering, training, consulting, start-up,
operating or maintenance services with respect to any Licensed Plant.
Licensor's responsibilities for any such services in the design, construction
and operation (including maintenance) of any Licensed Plant shall be as set
forth in one or more separate written engineering services agreement(s) (if
any) between Licensor and Licensee specifically applicable to each Licensed
Plant.
3.04 Licensor agrees to disclose to Licensee, upon reasonable request but
at least once a year, (a) additions to Licensor Technology and (b)
improvements or inventions developed by Licensor or its Affiliates relating
to Licensor Technology which have been commercially used or which Licensor
determines are in a stage of development suitable for commercial use.
Licensor shall permit Licensee to reasonably inspect, at mutually convenient
times, the operating procedures, process conditions, material balances,
energy consumption, catalyst performance, and analyses of internal streams
and/or Synthetic Product at Licensor's pilot plant which are applicable to
such improvements or inventions.
3.05 Licensee shall provide Licensor 90 days advance written notice of the
anticipated Start-up Date for each Licensed Plant. Licensee agrees to permit
Licensor and/or its representatives access to Licensee's Licensed Plants at
reasonable and convenient times, for inspection and if requested by Licensee,
training, by representatives of Licensor. Licensor shall have the right to
charge Licensee a reasonable fee for any training as may be agreed with the
Licensee on a case by case basis.
4. LICENSEE GRANTS TO LICENSOR
4.01 Licensor may, no more than one (1) time per year, request and Licensee
agrees to disclose to Licensor in writing any Inventions or Improvements
related to the Conversion Process.
4.02 Subject to the terms and conditions of this Agreement, Licensee grants
to Licensor a limited, non-exclusive, irrevocable, royalty free, worldwide
(i) right and license under Licensee Patent Rights and (ii) right and license
to use Licensee Technical Information for the design, construction, operation
and maintenance (including modify, expand and replace) of facilities
practicing the Conversion Process, together with the right to grant
corresponding sublicenses of the Licensee Patent Rights and Licensee
Technical Information to other licensees of Licensor Technology for use at a
licensed plant practicing the Conversion Process, provided that any such
licensee to whom a sublicense is to be granted shall have granted reciprocal
rights to Licensor to use and grant sublicenses under such licensee's patent
rights and technical information for the benefit of Licensee. Licensee shall
have the right to charge Licensor a reasonable fee for any training with
respect to Licensee Patent Rights and Licensee Technical Information as may
be agreed with the Licensor on a case by case basis.
4.03 Should Licensee, during the term of this Agreement, make any
patentable Inventions or Improvements, Licensee may, at its sole discretion,
file patent applications with respect to such Inventions or Improvements in
its own name and at its own expense, and take such other steps as are
necessary, in the sole judgment of Licensee, to protect its rights in such
Inventions or Improvements. In the event Licensee declines to file any patent
application with respect to any Inventions or Improvements, it shall promptly
notify Licensor in a timely manner to allow Licensor, at its sole discretion,
to file such patent application at its sole expense, and to take such other
steps as are necessary, in its judgment, to protect the Parties' rights in
such Inventions or Improvements, subject to Licensee's obligation to account
to third parties therefore and provided that title to such Inventions or
Improvements shall remain in Licensee.
4.04 Licensor and Licensee each agree that they will take all actions and
execute all documents and shall cause their employees, agents and contractors
to take all actions and execute all documents as are necessary or appropriate
to carry out the provisions of this ARTICLE 4 or to assist each other in the
preparation, filing and prosecution of patent applications or securing such
protection referenced in this ARTICLE 4 when so requested.
4.05 Licensee shall permit Licensor and/or its representatives to
reasonably inspect, at mutually convenient times, the operating procedures,
process conditions, material balances, energy consumption, catalyst
performance, and analyses of internal streams and/or Synthetic Product which
are applicable to Licensee's Inventions or Improvements used at the Licensed
Plant.
4.06 Licensee agrees to provide, from time to time and upon request by
Licensor, samples of Marketable Products as they are produced by any of
Licensee's Licensed Plants to verify compliance with this Agreement. Licensor
agrees to limit its analysis of samples of Marketable Products to those
analyses necessary to determine compliance with the definition of Marketable
Products.
5. LICENSE AND OTHER FEES
5.01 In consideration for the rights granted to Licensee by Licensor under
this Agreement, Licensee shall pay Licensor a non-refundable amount of
upon execution of this Agreement. This amount shall be fully
credited against the first in License Fees payable by Licensee
to Licensor as provided in ATTACHMENT 3.
5.02 Licensee agrees to pay fees to Licensor in accordance with ATTACHMENT
3 for each Licensed Plant.
5.03 In addition to the amounts to be paid by Licensee to Licensor under
SECTIONS 5.01 and 5.02, Licensee agrees to pay Licensor for each Process Design
Package, a fee equal to the reasonable costs actually incurred by Licensor in
preparing the Process Design Package,
plus 10% of the total of such actual costs. Such fee shall be invoiced by
Licensor to Licensee after delivery of a Process Design Package and payment
shall be due within 30 days from receipt of invoice by Licensee.
5.04 All amounts payable under this Agreement shall be paid by Licensee to
Licensor at Licensor's address specified in SECTION 10.07, or to an account
at a bank specified by Licensor, in dollars of the United States of America.
5.05 In the event Licensee is required to withhold any taxes from amounts
payable to Licensor under this Agreement, Licensee agrees to provide Licensor
at the time of such withholding with a receipt or other evidence reflecting
the deposit of such taxes with the appropriate governmental agency.
6. WARRANTIES AND INDEMNITIES
6.01 Licensor represents and warrants that it is a corporation duly
organized, validly existing, and in good standing under the laws of the State
of Oklahoma, United States of America, and has full power and authority to
enter into and perform its obligations under this Agreement, including the
right to grant the rights and licenses as set forth in ARTICLE 2. The
execution, delivery and performance of this Agreement and all documents
relating hereto by Licensor have been duly and validly authorized by all
requisite corporation action and constitute valid and binding obligations of
Licensor enforceable in accordance with their respective terms.
6.02 Licensee represents and warrants that it is a corporation duly
organized, validly existing, and in good standing under the laws of Delaware,
United States of America, and has full power and authority to enter into and
perform its obligations under this Agreement including the right to grant the
rights and licenses as set forth in ARTICLE 4. The execution, delivery and
performance of this Agreement and all documents relating hereto by Licensee
have been duly and validly authorized by all requisite corporate action and
constitute valid and binding obligations of Licensee enforceable in
accordance with their respective terms.
6.03 Except as otherwise expressly set forth in this Agreement or other
written agreement between the Parties, LICENSOR MAKES NO AND HEREBY DISCLAIMS
ANY EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS OF ANY KIND, INCLUDING ANY
WARRENTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ANY OTHER
WARRANTIES OR REPRESENTATIONS OF ANY KIND TO LICENSEE, INCLUDING, WITHOUT
LIMITATION, ANY WARRANTY OR REPRESENTATION WITH RESPECT TO USE OF LICENSOR
TECHNOLOGY AS AUTHORIZED HEREUNDER.
6.04 EXCEPT FOR UNAUTHORIZED DISCLOSURE OR USE OF CONFIDENTIAL INFORMATION OR
UNAUTHORIZED USE OF PATENT RIGHTS UNDER THIS AGREEMENT, IN NO EVENT SHALL A
PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR
EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS OR SAVINGS,
REGARDLESS OF THE FORM OF ACTION GIVING RISE TO SUCH A CLAIM FOR SUCH DAMAGES,
WHETHER IN CONTRACT OR TORT INCLUDING NEGLIGENCE, EVEN IF LICENSOR OR LICENSEE
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BUT IF A PARTY IS FOUND
LIABLE, DESPITE THE ABOVE LANGUAGE, TO THE OTHER PARTY FOR SPECIAL, INDIRECT,
CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES THEN THE MAXIMUM LIMIT
OF SUCH DAMAGES IS AGREED TO BE $5,000.
6.05 A Party will promptly advise the other Party in writing of any claim
made or lawsuit alleging infringement of any patent or copyright or
misappropriation of Confidential Information based on the design,
construction and/or operation of Licensed Facilities (including Synthetic
Product or Marketable Products produced from Licensed Facilities).
(a) If Licensee has made a modification to the Process Design Package,
with respect to a Licensed Plant, and infringement or misappropriation by
such Licensed Plant would not exist in the absence of Licensee's
modification, Licensee will be solely responsible for any claim or lawsuit.
Licensee will (i) promptly undertake at its own expense the defense of the
claim or lawsuit, and (ii) hold Licensor, its Affiliates, and their officers,
directors, and employees harmless from any liability, damages and other sums
that may be assessed in or become payable under any decree or judgment by any
court or other tribunal which results from such claim or lawsuit and from any
attorneys fees, costs of litigation and other reasonable out of pocket
expenses incurred in the defense of such claim or lawsuit.
(b) If the design, construction and/or operation of a Licensed Plant
which is the basis for alleged infringement or misappropriation, is in
accordance with the designs, specifications and operating conditions
(including, but not limited to, catalysts) embodied in the Process Design
Package for such Licensed Plant, Licensor will (i) promptly undertake at its
own expense the defense of the claim or lawsuit, and (ii) hold Licensee, its
Affiliates, and their officers, directors, and employees harmless from any
liability, damages and other sums that may be assessed in or become payable
under any decree or judgment by any court or other tribunal which results
from such claim or lawsuit and from any attorneys fees, costs of litigation
and other reasonable out of pocket expenses incurred in the defense of such
claim or lawsuit.
(c) A Party will render all reasonable assistance that may be required
by the other Party in the defense of claim or lawsuit alleging infringement
or misappropriation and such Party shall have the right to be represented
therein by advisory counsel of its selection and at its expense.
(d) In the event a court or other tribunal finds that infringement and/or
misappropriation has occurred not as a result of Licensee's modifications,
Licensor shall have the option, at its sole expense, to either (i) provide
designs, specifications and/or operating conditions (including, but not limited
to, catalysts) and make modifications to the Licensed Plant which avoid such
infringement and/or misappropriation without degrading
the economics or performance of the Licensed Facilities, or (ii) acquire the
right to continue using the design, construction and operating conditions
(including, but not limited to, catalysts), which were the subject of such
infringement and/or misappropriation.
(e) Except as provided in (d) above, a Party shall not settle or
compromise any claim or lawsuit alleging infringement or misappropriation
without the written consent of the other Party if such settlement or
compromise obligates the other Party to make any payment or part with any
property, to assume any obligation or grant any licenses or other rights, or
to be subject to any injunction by reason of such settlement or compromise.
6.06 Licensor agrees to indemnify and hold harmless Licensee, its
Affiliates, and their officers, directors, and employees from and against the
full amount of any and all claims, demands, actions, damages, losses, costs,
expenses, or liability whatsoever (including without limitation the costs of
litigation, including reasonable attorneys' fees), for patent infringement,
property (real and personal) damage, personal injury or death, fines, or
penalties arising in whole or in part out of the use of Licensee Patent
Rights and Licensee Technical Information in a plant operated by Licensor or
Person under license from Licensor.
6.07 Licensor agrees to indemnify and hold harmless Licensee, its
Affiliates, their officers, directors, and employees from and against the
full amount of any and all claims, demands, actions, damages, losses, costs,
expenses, or liability whatsoever (including without limitation the costs of
litigation, including reasonable attorneys' fees), for property (real and
personal) damage, personal injury or death, fines, or penalties arising in
whole or in part out of acts or omissions in the preparation and content
(including design, engineering, and specifications) of the Process Design
Package for the Licensed Facilities.
6.08 Licensee agrees to indemnify and hold harmless Licensor, its Affiliates,
their officers, directors, and employees from and against the full amount of any
and all claims, demands, actions, damages, losses, costs, expenses, or liability
whatsoever (including without limitation the costs of litigation, including
reasonable attorneys' fees), for property
(real and personal) damage, personal injury or death, fines, or penalties
arising in whole or in part out of acts or omissions outside the scope of or
any modification to the content (including design, engineering, and
specifications) of the Process Design Package for the Licensed Facilities.
6.09 Licensor's total obligation and liability to indemnify and hold
Licensee harmless for any and all claims (i) under this ARTICLE 6, including
but not limited to all expenses incurred by Licensor in assuming Licensee's
defense, making modifications to the Licensed Plant and for paying any
judgments or settlements on Licensee's behalf, or for any other reason
contemplated by this ARTICLE 6, (ii) for failure to meet any process
guarantees that may have been provided under a separate agreement, or (iii)
for any other indemnification made by Licensor pursuant to this Agreement,
shall in no event exceed 50% of the total License Fees received from the
Licensee for any Licensed Plant that is subject to the above claims.
6.10 Licensee's total obligation and liability to indemnify and hold
Licensor harmless for any and all claims (i) under this ARTICLE 6 including
but not limited to all expenses incurred by Licensee in assuming Licensor's
defense and for paying any judgments or settlements on Licensor's behalf, or
for any other reason contemplated by this ARTICLE 6, or (ii) for any other
indemnification made by Licensee pursuant to this Agreement, shall in no
event exceed 50% of the total License Fees received by Licensor from Licensee
for any Licensed Plant that is subject to the above claims.
7. CONFIDENTIALITY AND LIMITATIONS
7.01 Licensee agrees that any Confidential Information disclosed by
Licensor or an Affiliate directly or indirectly to Licensee during the period
from the date of Licensee's execution of the Confidentiality Agreement
through the term of this Agreement, will be kept confidential by Licensee for
a period of fifteen (15) years after the date of each disclosure, but not to
exceed five (5) years after the termination of this Agreement or fifteen (15)
years from the Effective Date, whichever last occurs, with the same standard
of care Licensee uses to protect its own similar confidential information
and, except as otherwise provided in this Agreement and, using the same
standard of care, will not be disclosed to others or copied or duplicated
(except for internal use), and will be used by Licensee solely as it relates
to this Agreement, and for no other purpose, including Licensee's research,
development or commercial activities related to the Conversion Process for
its own account. Licensee may disclose such Confidential Information to third
parties who have executed a secrecy agreement with Licensor with
confidentiality terms no less restrictive than those set forth in this
SECTION 7.01. To the extent reasonably necessary to carry out the purposes of
this Agreement, Licensee may disclose any of the foregoing information to an
Affiliate, provided that the Affiliate has agreed in writing to be bound by
this Agreement.
7.02 Licensor agrees that any Confidential Information disclosed by Licensee
or an Affiliate directly or indirectly to Licensor during the term of this
Agreement will be kept confidential by Licensor for a period of fifteen (15)
years after the date of each disclosure, but not to exceed five (5) years after
the termination of this Agreement or fifteen (15) years from the Effective Date,
whichever last occurs, with the same standard of care Licensor uses to protect
its own similar confidential information, and except as otherwise provided in
this Agreement and, using the same standard of care, will not be disclosed to
others or copied or duplicated, and will be used by Licensor solely in the
development, marketing and licensing of the Conversion Process, and for no other
purpose. Licensor may disclose such Confidential Information to third parties
who have executed a secrecy agreement with confidentiality terms similar to the
confidentiality provisions of this
Agreement. To the extent reasonably necessary to carry out the purposes of
this Agreement, Licensor may disclose any of the foregoing information to an
Affiliate, provided that the Affiliate has agreed in writing to be bound by
the relevant provisions of this Agreement.
7.03 A Party shall not be subject to the restrictions set forth in SECTIONS
7.01 and 7.02 as to the disclosure, duplication or use of disclosed
Confidential Information, which the receiving Party can prove by competent
evidence (a) was already known to the receiving Party or an Affiliate prior
to the disclosure thereof by the disclosing Party; (b) is or becomes part of
the public knowledge or literature without breach of this Agreement by the
receiving Party but only after it becomes part of the public knowledge or
literature; (c) shall otherwise lawfully become available to the receiving
Party or an Affiliate from a third party but only after it becomes so
available and provided the third party is not under obligation of
confidentiality to disclosing Party; or (d) is developed by the receiving
Party or an Affiliate independently of any disclosure by the disclosing Party
to the receiving Party or an Affiliate under this Agreement or independently
of any joint research and development activities of Licensee and Licensor
which may occur under a separate agreement. Any Confidential Information
disclosed shall not be deemed to fall within the confidentiality exceptions
of this SECTION 7.03 merely because it is embraced by more general
information. In any such case set forth in SECTION 7.03(a), (b), (c), and
(d), the receiving Party shall keep confidential and not disclose to any
third party that any such information was also made available to or acquired
by the receiving Party or an Affiliate from the disclosing Party, and such
release from the secrecy obligation shall not be considered as a license to
make, sell, use or operate under any of the disclosing Party's proprietary
rights.
7.04 The receiving Party shall limit access to the Confidential Information
disclosed to it to those employees of the receiving Party or an Affiliate who
reasonably require the same and who are under a legal obligation of
confidentiality on the terms set forth in SECTION 7.01 and SECTION 7.03. The
receiving Party shall be responsible to the disclosing Party for the
performance by its employees of their confidentiality obligations. The
receiving Party shall keep a record of any Confidential Information marked
"Limited Access" and the identity of each employee who has access to
Confidential Information so marked. The receiving Party shall inform the
other Party of the identity of each such employee within 30 days of
disclosure. Neither a Party not its Affiliate will be liable for the actions
of a former employee following the date on which such former employee ceases
to be an employee, provided that the actions of such Party or its Affiliate
with respect to such former employee are consistent with its standard of care
as provided in SECTION 7.01 or 7.02, which, at a minimum, shall include
recovery of all Confidential Information prior to termination of such
employment. The other Party will, at it option, be subrogated to any rights
the receiving Party may have against a former employee involving such
Confidential Information.
7.05 In the event that a Party which is a recipient of Confidential
Information from the other Party is requested or required by applicable law
or by deposition, interrogatory, request for documents, subpoena, civil
investigative demand or similar process to disclose any such Confidential
Information, the receiving Party shall provide the disclosing Party with
prompt written notice of such request or requirement prior to making the
requested disclosure, and shall cooperate with the disclosing Party so that
the disclosing Party may seek a protective order or other appropriate remedy
or, if the disclosing Party so elects, waive compliance with the terms of
this Agreement. In the event that such protective order or other remedy is
not obtained, the receiving Party may disclose only that portion of the
Confidential Information which the disclosing Party is advised by counsel is
legally required to be disclosed.
7.06 The Parties agree that they will each take all actions and execute all
documents, and shall cause their employees, agents and contractors to take
all actions and execute all documents as are necessary or appropriate to
carry out the provisions of this ARTICLE 7 or to assist each other in
securing protection of intellectual property and Confidential Information
referenced in this ARTICLE 7.
7.07 With respect to any catalyst furnished by Licensor to Licensee for use
by Licensee at the Licensed Facilities, Licensee will not, and Licensee will
not allow any other person to, analyze, break down, reverse engineer or
otherwise seek to determine the chemical composition, except for loss on
ignition and bulk density, of any such catalyst, except that Licensee shall
be entitled to (a) perform analyses that Licensor may from time to time
specifically authorize in writing, to the extent required for monitoring the
performance of the Licensed Facilities and for regeneration, reclamation or
disposal of spent catalysts, such authorization not to be unreasonably
withheld, and (b) provide results of the aforementioned analyses to other
parties to the extent required for regeneration, reclamation or disposal of
spent catalysts, but only after such other parties have entered into an
agreement with Licensor in a form attached hereto as EXHIBIT E of the
attached Site License Agreement. Licensor will be provided with a copy of all
such analyses which has been approved in writing prior to release to other
parties.
8. ASSIGNMENT AND TRANSFERS
8.01 Except for assignment to an Affiliate or the successor in interest, by
purchase or otherwise, of Licensee (but specifically excluding Exxon
Corporation, Royal Dutch Shell, Sasol Limited or any entity in which they
have an equity interest), which may be made without written consent of
Licensor, this Agreement shall not be assignable by Licensee without the
prior written consent of the Licensor, which consent will not be unreasonably
withheld. Licensee will promptly notify Licensor in writing of any assignment
to an Affiliate, or such successor in interest. Except for assignment to an
Affiliate, or such successor in interest, any attempted assignment of this
Agreement by Licensee without consent of Licensor shall be void.
8.02 In the event of the transfer of Licensee's Participating Interest in
any Licensed Plant to another Person other than an Affiliate, Licensee shall
obtain such Person's unconditional execution of the Site License Transfer
Letter set forth in EXHIBIT F of the Site License Agreement, and submit such
Letter to Licensor, whereupon if Licensor gives its written consent, such
consent not to be unreasonably withheld, then such Person to whom such Site
License Agreement shall have been transferred shall be substituted for
Licensee for all purposes in connection with such Licensed Plant. Licensor's
refusal to consent may be justified by Licensor's reasonable concern that
assignee will not comply with the terms of this Agreement. A transfer of
Licensee's Participating Interest does not relieve Licensee of its
confidentiality obligations under this Agreement with respect to Confidential
Information associated with such transferred Participating Interest.
9. TERM AND TERMINATION
9.01 This Agreement shall extend for a period of fifteen (15) years
following the Effective Date, or five (5) years following the effective date
of the last Site License Agreement issued under this Agreement, whichever
last occurs.
9.02 Upon the written notice from Licensor to Licensee of any material
default under this Agreement (including any material default under a Site
License Agreement), other than as noted in SECTION 2.05 (c), all rights of
Licensee under SECTION 2.05 of this Agreement, shall be suspended until such
default is cured by Licensee. Licensee's or an Affiliate's right to operate
any Licensed Plant which is in compliance with its Site License Agreement
shall not be affected by either a default under this Agreement or a default
under another Site License Agreement for another Licensed Plant. If a
material default under this Agreement shall continue for a period of one year
following written notice of such default to Licensee from Licensor without
being cured by Licensee, then Licensor shall have the right to (a) suspend
all rights of Licensee under this Agreement, or (b) terminate this Agreement
upon written notice to Licensee. The actions by Licensor under this SECTION
9.02 shall not prejudice Licensor from enforcing any claim which it may have
for damages or otherwise on account of the default.
9.03 Termination of this Agreement shall not:
(a) relieve a Party of its obligations to account for and pay all
amounts due the other Party under this Agreement and all Site License
Agreements executed by the Parties under this Agreement;
(b) affect any rights granted Licensee under Site License Agreements
in effect on the date of termination;
(c) affect any rights granted under ARTICLE 4 with respect to Licensee
Patent Rights and Licensee Technical Information, which shall survive
termination in accordance with its terms; or
(d) affect the obligations of Licensor and Licensee under ARTICLES 6
and 7 and SECTIONS 8.02 and 10.02, which shall survive termination in
accordance with their terms.
9.04 No Party to this Agreement shall be in default in performing its
obligations under this Agreement to the extent that performing such
obligations, or any of them, is delayed or prevented by revolution, civil
unrest, strike, labor disturbances, epidemic, accident, fire, lightening,
flood, storm, earthquake, explosion, blockage or embargo, or any law,
proclamation, regulation or ordinance, or any other cause that is beyond the
control of the Party asserting the benefit of this SECTION 9.04. Each Party
shall do all things reasonably possible to remove the cause of such default.
9.05 Licensee shall have the right to terminate this Agreement in its sole
discretion, with or without cause, upon the delivery of written notice of
termination to Licensor no less than ninety days prior to the date of such
termination.
10. MISCELLANEOUS
10.01 This Agreement embodies the entire intent of the Parties and merges
all prior oral and written agreements between the Parties hereto with respect
to subject matter hereof. No stipulation, agreement, representation or
understanding of the Parties hereto shall be valid or enforceable unless
contained in this Agreement or in a subsequent written agreement signed by
the Parties hereto. In the event of a conflict between this Agreement and a
Site License Agreement executed pursuant to this Agreement, this Agreement
will govern.
10.02 THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAW
PROVISIONS THEREOF. The Parties expressly and irrevocably consent and submit
to the jurisdiction of any state or federal court sitting in the state of
Oklahoma and agree that, to the fullest extent allowed by law, only such
Oklahoma courts, to the exclusion of all others, shall have jurisdiction over
any action,
suit or proceeding arising out of or relating to this Agreement. The Parties
each irrevocably waive, to the fullest extent allowed by law, any objection
either of them may have to the laying of venue of any such suit, action or
proceeding brought in any state or federal court sitting in, the state of
Oklahoma based upon a claim that such court is inconvenient or otherwise an
objectionable forum. Any process in any action, suit or proceeding arising
out of or relating to this Agreement may, among other methods, be served upon
any Party by delivering it or mailing it to their respective addresses set
forth herein. Any such delivery or mail service shall be deemed to have the
same force and effect as personal service in the State of Oklahoma.
10.03 This Agreement does not grant and shall not be construed as granting
any license, authorization or consent, to either Party by the other Party
hereto, to use any name, trademark, service ▇▇▇▇ or slogan of the other
Party. A Party shall not use the other Party's name without written consent,
except for the identification of the other Party as a Licensee or Licensor of
Licensor Technology. The terms of this Agreement will be maintained in
confidence by each Party subject to the same standard of care each Party uses
to protect its confidential information, except as required by law. A press
release which includes the name of the other Party must have prior written
approval of the other Party, except as required by law.
10.04 Failure of either Licensor or Licensee at any time or from time to
time to exercise any of its rights under this Agreement or to insist upon
strict performance of the other Party's obligations hereunder shall not be
deemed a waiver of or to limit any of such rights or obligations with respect
to such rights or obligations or any subsequent occurrence.
10.05 Licensee may publish the existence of this Agreement but agrees not to
disclose, without the written consent of the Licensor, any of the terms of
this Agreement or any portion thereof, or any amendment concerning the same,
except to Persons directly involved with design, financing, construction, or
operation of a Licensed Plant on a need-to-know basis or as required by law.
10.06 Licensee agrees that all Licensor information, technology, patents,
and the product produced directly by the use thereof, when used outside the
United States of America, shall be used by Licensee subject to and in
accordance with regulations of any department or agency of the United States
of America and shall not be re-exported or trans-shipped to any destination
requiring the approval of the United States Government for such
re-exportation or trans-shipment until a request to do so has been submitted
to and approved by the United States government and notice of such approval
has been provided to Licensor.
10.07 Should any part or provision of this Agreement be held unenforceable
or in conflict with the law of any state or of the United States of America
or of any foreign country, the validity of the remaining parts or provisions
shall not be affected by such holding.
10.08 All notices hereunder shall be addressed to the Parties as follows:
(a) If to Licensor:
Syntroleum Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Phone No.: (▇▇▇) ▇▇▇-▇▇▇▇
ATTN: Office of the President
with copy to:
Syntroleum Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Phone No.: (▇▇▇) ▇▇▇-▇▇▇▇
ATTN: Office of the General Counsel
(b) If to Licensee:
▇▇▇▇-▇▇▇▇▇ Corporation
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Director, Strategic Planning/ Business Development
with copy to:
▇▇▇▇-▇▇▇▇▇ Corporation
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Office of the General Counsel
Any notice required or permitted to be given under this Agreement by one of
the Parties to the other shall be deemed to have been sufficiently given for
all purposes hereof if mailed by registered or certified mail, postage
prepaid, addressed to such Party at its address indicated above,
electronically transmitted and acknowledged by the other Party or by actual
delivery of written notice to the other Party.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date set forth above.
Licensor
SYNTROLEUM CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
-----------------------------
▇▇▇▇ ▇. ▇▇▇▇, President/COO
Date: February 4,1998
Licensee
▇▇▇▇- ▇▇▇▇▇ CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Chairman of the Board
& Chief Executive Officer
Date: February 4, 1998