LICENSE AGREEMENT
BETWEEN
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
AND
TEXXON, INC.
THIS LICENSE AGREEMENT ("Agreement") is entered into by and between ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ("TWIFORD") and TEXXON, INC. ("TEXXON").
WHEREAS, TWIFORD owns all the rights, titles and interests in and to those
certain precious metals technologies and processes, together with all
improvements, modifications, and changes heretofore and hereafter made by
TWIFORD while this Agreement remains in effect and any and all other
intellectual property rights therein, together with any and all patents, patent
applications and patent rights (if any such rights ever exist or such
applications shall ever be filed ("Invention"); and
WHEREAS, TEXXON desires to acquire, and TWIFORD desires to grant to TEXXON,
an exclusive worldwide license to use, exploit and practice the Invention, to
design, develop and manufacture products that incorporate the Invention and to
make, market, commercialize, sell, distribute and use the License Products on a
worldwide basis, subject only to the existing rights to use the Invention which
TWIFORD has heretofore granted and which remain outstanding, as reflected in
Exhibit A hereto.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt, adequacy and sufficiency of which is hereby
acknowledged, the parties agree as follows.
▇. ▇▇▇▇▇ OF LICENSE
1.01 License. Subject only to the existing rights of others in the
Invention which have heretofore been granted by TWIFORD and which remain in
effect as reflected in Exhibit A hereto, TWIFORD hereby grants to TEXXON, and
TEXXON hereby accepts from TWIFORD, an exclusive worldwide License to do the
following, upon the terms and conditions herein specified.
(i) Use, exploit and practice the Invention; and
(ii) Design, develop, improve, and assist TWIFORD in the design,
development and improvement of the Invention; and
(iii)Make, market, commercialize, sell and use products extracted, refined
and produced as a result of the use of the Invention; and
(iv) Sublicense and contract with others to provide services in connection
with the Invention.
1.02 Ownership of the Invention. The parties acknowledge that TWIFORD owns
the exclusive rights in and to the Invention. TWIFORD grants, bargains, assigns,
conveys and delivers all of TWIFORD's rights, titles and interest in the
Invention to TEXXON in the event of TWIFORD's death or legal incapacity. The
parties intend that this assignment shall be self-executing and shall take
effect immediately at the time of TWIFORD's death or legal incapacity, without
any further action on the part of anyone.
1.03 Requirements of TWIFORD. TWIFORD agrees to provide consulting and
other assistance to TEXXON in the design, development and improvement of the
Invention and to provide consulting services for and cooperation with engineers,
consultants and other contractors and representatives of TEXXON in an effort to
maximize the efficiency and improve the quality of the Invention as it relates
to the extraction, refinement, marketing and promotion of precious metals using
the Invention.
1.04 Reservation of Rights. TWIFORD reserves the right to make, use and
further develop the Invention and to practice the Invention for his own
personal, educational and research purposes; but he agrees that he will not
permit others to make commercial use of the Invention, except through TEXXON or
its authorized representatives and except as set forth in Exhibit A hereto.
1.05 Sublicensing by TEXXON. TEXXON has the right, to grant sublicense,
distribution, manufacturing and marketing rights to third parties in its sole
discretion upon terms and conditions it deems appropriate.
1.06 Commercial Distribution of Licensed Products. The License rights
granted hereunder entitle TEXXON to make, use, sell, practice, exploit and
distribute the Invention and to permit its affiliates, subsidiaries, permitted
assigns and authorized contractors to do the same, and to sell products produced
using the Invention through any and all channels of commerce.
II. COMPENSATION
2.01 License Fee. TEXXON agrees to pay TWIFORD $500,000 in cash upon the
consummation of one or more funding transactions resulting in the receipt by
TEXXON or its successors in interest of at least $2,000,000.
2.02 Royalty. TWIFORD shall receive a five percent (5%) net smelter
royalty, to be defined as 5% of any payment received from any entity, refiner,
smelter or buyer of concentrates, salts or metal form, including but not limited
to metal sponge of the precious metals, or of any sale of precious metals in any
form, recovered from ores using the Invention developed by TWIFORD or from any
derivation of the Invention less transportation costs if paid by Seller.
III. TERM AND TERMINATION
This Agreement shall become effective as of the date executed and shall
continue in effect in perpetuity or until the law requires termination. It is
the intention of the parties that the rights granted hereby shall remain in
effect for as long as the law permits.
IV. PROTECTION OF THE INVENTION
4.01 Preservation of the Invention. The parties understand and agree not to
file for protection of the Invention under patent or other similar laws in order
to preserve the confidentiality thereof, unless the circumstances require
registration to preserve and protect the ownership and proprietary rights
relating to the Invention.
4.02 Recording the Invention. TWIFORD agrees to record all parts and
specifications of the Invention and all improvements therein at least as
frequently as each month in a form, which any certified metallurgist would know
how to use and operate to the Board of Directors of TEXXON, who agree to
preserve and protect the confidentiality thereof in the manner TEXXON determines
to be appropriate, for example, using a bank safety deposit box accessible only
by the Chairman. The Board of Directors of TEXXON or its successor shall approve
the terms of any bank deposit arrangement.
4.03 Patent Applications. In the event it shall become necessary or
advisable to make application for patent protection, the parties agree to
cooperate with each other to prosecute, pursue and maintain the US Patent
Applications and all other patent applications relating to the Invention and to
use their best, good faith, diligent efforts to secure patents in the US and in
such other jurisdictions as the parties mutually agree and to protect all the
Patent Rights and intellectual property rights relating thereto. TWIFORD agrees
to cooperate and coordinate with TEXXON on such filings and provide copies of
material documents relevant to any such filings in sufficient time to review and
comment upon such documents before filed. All attorneys' fees and expenses,
filing fees and other costs of preparing, filing and prosecuting such patent
applications issuance shall be the responsibility of TEXXON.
V. CONFIDENTIALITY
5.01 Confidentiality Agreement. Except as provided in Paragraph 5.02 below,
TEXXON has entered into a Confidentiality Agreement with TWIFORD prior to the
date hereof. The obligation of confidentiality thereunder shall continue in
accordance therewith; provided however, the obligation of confidentiality shall
not apply to information, which is:
(i) In the public domain or which becomes generally available to the
public through no fault of the receiving party; or
(ii) Already known to or in the possession of the receiving party prior to
disclosure by the disclosing party; or
(iii)Disclosed on a non-confidential basis from a third party having the
right to make such a disclosure; or Independently developed by the
receiving party (by activity not associated with the Patent Rights);
or
(iv) Not in fact confidential, proprietary or competitively sensitive; or
(v) Required to be disclosed by law or governmental order.
5.02 Authorized Disclosures. The terms of the Confidentiality Agreement are
hereby amended, so that TWIFORD hereby consents to the disclosure of any and all
information by TEXXON or its successors and permitted assigns as shall be
necessary for them to operate the business of extracting, processing, and
refining precious metals from sand and other ores.
VI. INFRINGEMENT
6.01 Third Party Infringement of Patent Rights. TEXXON and TWIFORD shall
promptly provide written notice to the other party of any alleged infringement
by a third party of the intellectual property rights relating to the Invention
and provide the other party with any available evidence of such infringement. In
the event there is good reason to believe infringement of any of those rights is
occurring, the parties will jointly take prompt action to ▇▇▇▇▇ or settle such
infringement. Either party shall have the right to institute an action in its
own name in so far as permitted by law to ▇▇▇▇▇ the infringement and may join
the other as a party plaintiff.
6.02 Enforcement and Defense. TEXXON shall have the right to prosecute and
defend, at its own expense and utilizing counsel of its choice, any claim of
infringement of or challenge to the validity of the Invention. Each party shall
promptly provide the other party with copies of all material documents in such
proceedings. No settlement, consent judgment or other voluntary final
disposition of any such suit may be entered into without the written consent of
both parties hereto, which consent shall not unreasonably be withheld.
6.03 Cooperation. In any suit to enforce or defend the Invention pursuant
to this Agreement, each party shall cooperate in all respects with the other
and, to the extent reasonably possible, have its employees testify when
requested and make available relevant records, papers, information, samples,
specimens, and the like.
6.04 Infringement Claims. Each party shall promptly notify the other upon
receipt of any information regarding any proceedings commenced or threatened
against either party or any purchaser of a product produced using the Invention
on the ground that the manufacture, use, sale or possession of the product is an
infringement of any third party's intellectual property rights.
VII. WARRANTIES AND INDEMNITIES
7.01 General Representations. Each party represents and warrants to the
other that:
(i) It has all requisite authority and power to enter into and perform its
obligations under this Agreement;
(ii) The person who has executed this Agreement for such party has all
requisite authority to do so for and on behalf of that party; and
(iii)This Agreement is valid, binding and enforceable in accordance with
its terms.
7.02 Disclaimers. Nothing in this Agreement shall be construed as:
(i) A warranty or representation by TWIFORD as to the validity or scope of
the Invention, except that TWIFORD reasonably believes that the
Invention does not infringe the rights of others; or
(ii) A warranty or representation by TWIFORD that anything made, used,
sold, or otherwise disposed of through the License granted herein is
or will be free from infringement of patents, copyrights, trademarks,
or other proprietary rights of third parties.
VIII. INDEMNIFICATION
8.01 Indemnification. Each party agrees to indemnify, defend and hold
harmless the other party and its directors, officers, employees, agents and
representatives, and their respective successors, heirs and assigns
("Indemnities"), against any liability, damage, loss or expenses (including
reasonable attorneys' fees and expense of litigation) incurred by or imposed
upon it in connection with any claims, suits, actions, demands or judgments
arising out of any theory of law arising by reason of a breach of its duties
hereunder. With respect to infringement by the Invention of third party
intellectual property rights, each party understands and agrees that each is
entering into this Agreement reasonably believing that the Invention does not
infringe the rights of others, but no assurance is given by either party to that
effect. Each party shall give prompt written notice to the other of the
commencement of any action, suit, or proceeding for which indemnification may be
sought and shall cooperate reasonably with the other in the defense and
prosecution thereof. Neither party may settle any such dispute where the
settlement adversely affects the rights of the other without the written consent
of the other.
8.02 Disclaimer. TWIFORD MAKES NO REPRESENTATIONS AND EXTENDS NO WARRANTIES
OF ANY KIND, EXPRESSED OR IMPLIED, EXCEPT TO THE EXTENT THAT TWIFORD OWNS THE
INVENTION AND THE INTELLECTUAL RIGHTS RELATING THERETO AND THAT TWIFORD
REASONABLY BELIEVES THAT INVENTION AND THE INTELLECTUAL PROPERTY RIGHTS RELATED
THERETO DO NOT INFRINGE ANY RIGHTS OF ANY OTHER PERSON OR ENTITY
IX. MISCELLANEOUS
9.01 Provisions Contrary to Law. The parties agree to comply with all laws,
rules and regulations applicable to the performance of their obligations
hereunder.
9.02 Notices. Any notice may be initially given by facsimile with
confirmation required or permitted to be given by this License by prepaid, first
class, registered or certified mail addressed as set forth below unless changed
by notice so given. Such notices properly addressed shall be effective upon
receipt by the party to whom notice is sent.
9.03 Dispute Resolution. The parties agree to use good faith reasonable
diligence to seek to resolve all disputes by mutual agreement. All disputes
arising hereunder not resolved by mutual agreement shall be resolved by binding
arbitration conducted in English in Tulsa, Oklahoma in accordance with the
Commercial Rules of Arbitration of the American Arbitration Association. The
parties' agree to be fully and finally bound by a decision made in arbitration.
Each party agrees to submit to and not contest personal jurisdiction or venue in
Tulsa County, Oklahoma. The prevailing party in any such proceeding shall be
entitled to be awarded its attorneys' fees and expenses, enforcement costs and
such other relief as the court of competent jurisdiction shall award.
9.04 Force Majeure. Neither party to this Agreement shall be liable for
delay or failure in the performance of any of its obligations hereunder, except
for the payment of money, if such delay or failure is due to causes beyond its
reasonable control. The party affected by a force majeure event shall use its
good faith diligent efforts to remedy such event as soon as reasonably possible.
9.05 Assignments. This Agreement may not be assigned by either party
without the written prior consent of the other party, which consent shall not be
unreasonably withheld; provided, however, TEXXON may assign this Agreement and
all its rights and obligations hereunder to TEXXON, INC. or to any affiliate or
to a successor of all or substantially all of its business. TEXXON shall provide
TWIFORD notice of any such assignment. Assignees of this Agreement may also
assign this Agreement in the manner described above. Assignees are bound by all
the obligations of this Agreement. The parties hereto agree that each is acting
as an independent contractor and not as an agent of the other or as joint
venturers.
9.06 Waivers and Modifications. The failure of any party to insist on the
performance of any obligation hereunder shall not act as a waiver of such
obligation. No waiver, modification, release, or amendment of any obligation
under this Agreement shall be valid or effective unless in writing and signed by
both parties hereto.
9.07 Successors in Interest. This Agreement shall inure to the benefit of
and be binding on the parties' permitted assigns, successors in interest, and
subsidiaries.
9.08 Choice of Law and Jurisdiction. This Agreement is subject to and shall
be construed and enforced in accordance with the laws of Oklahoma.
9.09 Entire Agreement. This Agreement constitutes the entire agreement
between the parties as to the subject matter hereof, and all prior negotiations,
representations, agreements and understandings are merged into, extinguished by
and completely expressed by this Agreement.
IN WITNESS WHEREOF, the parties have duly executed this Agreement the 22nd
day of February 2001.
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Individually
EXHIBIT A
DESCRIPTION OF OUTSTANDING RIGHTS IN THE INVENTION
The following is a complete description of all rights that have been
granted orally or in writing to use the Invention in any manner whatsoever:
Global Platinum + Gold, Inc.
PGM CORPORATION
U. S. Power Systems
Twiford Exploration
International Metal Research Corporation
Scientific Resource Technology, Ltd.
Galleon Technology & Development Corp.
