LICENSE AND BINDER PURCHASE AGREEMENT
THIS LICENSE AND BINDER PURCHASE AGREEMENT (the "Agreement"), is made
and entered into as of December 29, 1999 by and between DTE Kentucky, L.L.C., a
Delaware limited liability company (the "Licensee"), and Covol Technologies,
Inc., a Delaware corporation (the "Licensor").
WHEREAS Licensor has developed a proprietary process to produce
synthetic coal fuel extrusions, pellets, and briquettes (collectively referred
to herein as "briquettes") from waste coal dust, coal fines and other coal
derivatives, and Licensor is entitled to license the synthetic Coal Briquetting
Technology (as defined below) to Licensee;
WHEREAS Licensor owns a synthetic fuel manufacturing plant (the
"Facility") located near Price, Utah on property leased from U.P.C., Inc., a
Utah corporation, and Licensee has or will acquire the Facility from Licensor as
contemplated by that certain Purchase Agreement dated as of December 23, 1999,
by and between Licensor and Licensee (the "Purchase Agreement");
WHEREAS Licensor has presented Licensee with an opportunity to
negotiate suitable terms and conditions to relocate and place the Facility at or
near a power generation facility (the "LG&E Site") leased and operated by an
affiliate of LG&E Energy (LG&E Energy and its affiliate herein referred to as
"LG&E") and to sell Section 29 Product produced at the Facility to LG&E.
WHEREAS Licensee wishes to obtain and Licensor wishes to grant to
Licensee a license for the synthetic Coal Briquetting Technology to be used in
connection with the Facility on the terms and conditions set forth in this
Agreement, and Licensee wishes to obtain and Licensor wishes to sell to Licensee
the Proprietary Binder Material (as defined below) for use in the operation of
the Facility.
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
covenants and agreements hereinafter set forth, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
Licensor and Licensee each agree as follows:
Section 1. Definitions.
"Coal Briquetting Technology" means all intellectual property, patents
(including but not limited to United States Patent Numbers 5,599,361; 5,487,764;
and 5,453,103) and applications therefor, printed and not printed technical
data, know-how, trade secrets, copyrights and other intellectual property
rights, inventions, discoveries, techniques, works, processes, methods, plans,
software, designs, drawings, schematics, specifications, communications
protocols, source and
--------
** This Exhibit contains confidential material which has been omitted
pursuant to a Confidential Treatment Request. The omitted information has been
filed separately with the Securities and Exchange Commission.
1
object code and modifications, test procedures, program cards, tapes, disks,
algorithms and all other scientific or technical information in whatever form
including "Developed Technology" and "Improvements" relating to, embodied in or
used in the process to produce synthetic coal fuel briquettes from waste coal
dust, coal fines, run of mine coal, and other similar coal derivatives,
including all such information in existence as of the date of this Agreement as
well as related information later developed by Licensor; provided, however, that
the defined term "Coal Briquetting Technology" shall not include the proprietary
process/method or other binder material or composition developed by Licensor to
produce synthetic coke briquettes from coke breeze, iron revert materials, or
any technology used in any application other than the processing and production
of synthetic coal fuel briquettes. Nothing in this Agreement is intended to
grant to Licensee the right to apply the Coal Briquetting Technology to produce
anything other than synthetic coal fuel intended to qualify for tax credits
under Section 29(c)(1)(C) of the Internal Revenue Code.
"Code" means the Internal Revenue Code of 1986, as amended.
"Developed Technology" means any inventions, "Improvement," or
technology that Licensor may conceive, make, invent, or suggest in connection
with Licensor's disclosure to Licensee of the Coal Briquetting Technology, all
of which the parties hereto acknowledge and agree constitutes the sole and
exclusive property of Licensor. "Developed Technology" also means any
inventions, "Improvement," or new technology directly related to the Coal
Briquetting Technology that Licensor or Licensee may conceive, make, invent or
suggest relating to the Coal Briquetting Technology during the Term of this
Agreement; provided, however, that "Developed Technology" shall not include coal
fines recovery, coal fines washing, material handling, or product marketing
techniques or technologies conceived, made, invented, or suggested by Licensee
that are generally applicable to the coal industry but which are used at the
Facility in connection with the Coal Briquetting Technology.
"Effective Date" means the date of this Agreement set forth above.
"Facility" has the meaning set forth in the preamble.
"Improvement" means an alteration or addition to an invention or
discovery which may enhance performance or economics while maintaining a
product's, device's, or method's essential identity and character. An
Improvement may comprise alterations or additions to either patented or
unpatented inventions, discoveries, technology, or devices, and may or may not
be patentable; provided, however, that "Improvement" shall not include coal
fines recovery, coal fines washing, material handling, or product marketing
techniques or technologies conceived, made, invented, or suggested by Licensee
that are generally applicable to the coal industry but which are used at the
Facility in connection with the Coal Briquetting Technology.
"Licensee" has the meaning set forth in the preamble.
"Licensor" has the meaning set forth in the preamble.
"Proprietary Binder Material" means and refers to the binder compound
necessary for the production, by Licensee, of synthetic coal briquettes as
contemplated under the Purchase Agreement and which briquettes are reasonably
expected to constitute "qualified fuels" pursuant
2
to the terms of Section 29(c)(1)(C) of the Code and with respect to which
Section 29 is applicable pursuant to Section 29(f) and 29(g) of the Code.
"Purchase Agreement" has the meaning set forth in the preamble.
"Royalty" has the meaning set forth in Section 3.
Section 2. License Grant.
2.1 General. Licensor hereby grants to Licensee a non-exclusive license
to use the Coal Briquetting Technology, including Developed Technology and/or
Improvements relating to the Coal Briquetting Technology, throughout the term of
this Agreement, for the purpose of commercial exploitation, including the
non-exclusive right to make, have made or use at the Facility and to offer to
sell and to sell or otherwise transfer products that have been manufactured with
the Coal Briquetting Technology, subject to the terms and conditions of this
Agreement. Licensee hereby accepts the license on the terms hereof. Licensee
shall not have the right to sublicense the Coal Briquetting Technology.
2.2 Licensor's Ownership of Developed Technology. All Developed
Technology and/or Improvements are and shall become Licensor's absolute
property, subject to the terms of this Agreement. Licensee shall at any time
during the Term of this Agreement and thereafter, at Licensor's reasonable
request, execute any patent papers covering such Developed Technology and/or
Improvements as well as any other documents that Licensor may consider necessary
or helpful in the prosecution of applications for a patent thereon or in
connection with any litigation or controversy related thereto; provided,
however, that all expenses incident to the filing of such applications and the
prosecution thereof and the conduct of such litigation shall be borne by
Licensor.
2.3 Exclusive Technology. Licensee agrees to use only the Coal
Briquetting Technology at the Facility and not to use any other technology at
the Facility, except to the extent other or additional technology is necessary.
Licensee shall not use any process or methodology that is not part of the Coal
Briquetting Technology, except to the extent that other or additional technology
is necessary. Licensee (i) shall not make or have made products using the Coal
Briquetting Technology or similar technology except at the Facility and (ii)
shall only make and have made products using the Coal Briquetting Technology at
the Facility under this License Agreement, except to the extent other or
additional technology is necessary. Licensee further agrees to use the Coal
Briquetting Technology only under authority of this License Agreement with
Licensor. Notwithstanding the foregoing, Licensee may produce Synthetic Fuel at
the Facility without the use of the Proprietary Binder Material and with binder
material provided elsewhere subject to the requirement to pay the additional
royalty provided in Section 3.1 hereof.
2.4 Non-licensed Technology. Licensor retains the absolute right to
fully exploit its technologies including, but not limited to, the application of
such technology embodied in the Coal Briquetting Technology to produce, market
and use synthetic coke briquettes from coke breeze, iron revert materials, and
any other materials to which Licensor's technology can be applied.
3
2.5 Confidentiality. Each of the parties hereby agree to maintain the
Coal Briquetting Technology confidential and not to disclose the Coal
Briquetting Technology, or any aspect thereof, including the Developed
Technology or Improvements (collectively, the "Confidential Information").
Notwithstanding the foregoing, information which (i) is or becomes generally
available to the public other than as a result of an unauthorized disclosure by
the parties or their respective agents, employees, directors or representatives,
(ii) was available to the party receiving disclosure on a non-confidential basis
prior to its receiving disclosure hereunder, (iii) lawfully becomes available to
the party receiving disclosure on a non-confidential basis from a third party
source (provided that such source is not known by the party receiving disclosure
or its agents, employees, directors or representatives to be prohibited from
transmitting the information), or (iv) a party is compelled by legal process by
any court or other authority to disclose shall not be subject to the terms of
this Section 2.5. In the case of (iv) above, the compelled party shall give the
other party prompt written notice of such legal process in order that an
appropriate protective order can be sought and each party agrees not to oppose
the other party's efforts to prevent the disclosure of Confidential Information.
At the termination of this Agreement, all copies of any Confidential Information
(including, without limitation, any reports or memoranda) shall be returned by
the party receiving disclosure. Nothing in this Agreement shall prohibit
Licensee from disclosing the Confidential Information to others as may be
reasonably necessary for Licensee to exploit Licensee's rights under the
Purchase Agreement, and/or this Agreement; provided that the recipient of any
such Confidential Information executes a Confidentiality Agreement restricting
further disclosure of the Confidential Information.
2.6 Know-How and Assistance. To enable Licensee to benefit fully from
the license of the Coal Briquetting Technology, Licensor shall provide access to
all relevant documentation, drawings, engineering specifications and other
know-how in its possession, reasonable access to its employees or agents who are
familiar with the Coal Briquetting Technology, Developed Technology, and
Improvements and shall provide such technical assistance and training as is
requested by Licensee. If Licensor does not have responsibility for the
operation of the Facility, Licensee shall reimburse Licensor for reasonable
travel and other similar out-of-pocket expenses of Licensor in performing
services under this Section 2.6; provided however, that Licensor shall obtain
the prior approval of Licensee for any expenditures in excess of $5,000.
Section 3. Royalty.
3.1 Royalty Payments. During the term of this Agreement, Licensee shall
pay to Licensor a royalty in an amount equal to $**** per ton for the first
360,000 tons per calendar year, and $****per ton for all tons in excess of
360,000 tons in a calendar year, of Section 29 Product (as defined in the
Purchase Agreement) produced at the Facility and sold to LG&E during the period
commencing on the effective date hereof and ending upon the expiration of the
term (or earlier termination) of this Agreement. Such royalty shall be paid
quarterly on the last day of January, April, July and October of each year for
the Section 29 Product sold during the previous calendar quarter. In the event
that, during the term of this Agreement, Licensee elects to use a binder
material other than the Proprietary Binder Material, Licensees will pay an
additional royalty to Licensor in the amount of $**** per ton of Synthetic Fuel
produced at the Facility, without the Proprietary Binder Material, and sold to
any third-party customer.
Section 4. Sales of Binder.
4
4.1 Sale and Purchase. Licensor shall sell to Licensee, and Licensee
shall purchase from Licensor, all of Licensee's requirements of Proprietary
Binder Material required to operate the Facility. Licensor shall deliver the
Proprietary Binder Material at such times and in such amounts as requested by
Licensee. Licensor shall invoice Licensee for Proprietary Binder Material
monthly. Payments for Proprietary Binder Material delivered by Licensor during
any calendar month shall be due and payable to Licensor on the tenth business
day of the immediately succeeding month.
4.2 Price. The price which Licensee shall pay for the Proprietary
Binder Material delivered by Licensor shall be an amount equal to (i) Licensor's
direct and actual costs (including, but not limited to, material, labor, and
transportation costs) and a percentage of the total overhead costs of Licensor
reasonably reflecting the ratio of the administrative costs incurred in
connection with the manufacture and sale of the Proprietary Binder Material
(estimated at the date hereof to be $**** per unit of Proprietary Binder
Material necessary to create one (1) ton of synthetic fuel product), payable
within 30 days of receipt of an invoice therefor, plus (ii) **** ($****) per
unit of Proprietary Binder Material necessary to create one (1) ton of synthetic
fuel product, payable for the preceding calendar quarter on the last day of
January, April, July and October of each year.
4.3 Licensor Representations and Warranties. Licensor represents,
warrants and covenants as follows:
(a) Licensor shall convey to Licensee good title to all
Proprietary Binder Material purchased by Licensee from Licensor
hereunder, free and clear of any and all liens, claims and encumbrances
of any type whatsoever.
(b) No Proprietary Binder Material shall contain any hazardous
material in violation of applicable laws and governmental regulations.
(c) At Licensee's reasonable request, Licensor shall replace,
or refund the purchase price of, all non-conforming Proprietary Binding
Material.
(d) Proper use of the Coal Briquetting Technology, including
use at an adequate, qualified Facility and with adequate feedstocks and
other raw materials, will enable Licensor to produce a product which is
reasonably expected to constitute "qualified fuels" pursuant to the
terms of Section 29(c)(1)(C) of the Code.
4.4 Order Procedure. Licensee shall deliver all purchase orders for
Proprietary Binder Materials at least thirty (30) days in advance of the first
day of the month in which delivery of such Proprietary Binder Material is
required under such purchase order. (For example, Licensee shall deliver a
purchase order for December delivery by no later than November 1st). Each such
purchase order shall be delivered either (i) in writing (including by fax), or
(ii) orally by telephone by an authorized agent of Licensee (subject to the
condition that it is followed by a written purchase order within 24 hours). Such
purchase orders shall be sent to Licensor at such address as Licensor shall
direct.
5
4.5 Delivery and Acceptance. All Proprietary Binder Material purchased
hereunder shall be delivered F.O.B. the Facility. Licensor shall arrange for any
necessary transportation of the Proprietary Binder Material to the Facility.
Licensee shall bear the expense of unloading of Proprietary Binder Material from
the trucks. Licensee shall have a reasonable opportunity to sample Proprietary
Binder Material delivered to it hereunder to confirm that such Proprietary
Binder Material conforms to the terms and requirements hereof, and Licensee
shall not be deemed or required to accept any such Proprietary Binder Material
prior to the completion of such sampling.
4.6 Delivery Of Binder Material. If Licensor's ability to deliver the
Proprietary Binder Material to Licensee will be interrupted or terminated for
any reason, Licensor shall give not less than ninety (90) days notice to
Licensee. Subject to giving notice of its inability to deliver the Proprietary
Binder Material to Licensee (or, in the absence of such notice, the actual
failure to deliver the Proprietary Binder Material for at least twenty (20) days
after Licensee gives written notice of non-delivery to Licensor), Licensor
hereby grants to Licensee a nonexclusive license for the term of this Agreement
(or such shorter period as provided in the proviso hereto) to use the technology
used to manufacture the Proprietary Binder Material, and the copy of the Formula
delivered in escrow pursuant to Section 4.7, to manufacture the Proprietary
Binder Material in sufficient quantities to operate the Facility to full
capacity, and such technology shall be deemed "Coal Briquetting Technology" for
the purposes of this Agreement; provided, however, that the license granted to
Licensee under this Section 4.6 shall cease (subject to reinstatement upon the
reoccurrence of the events contemplated above) and sales of Proprietary Binder
Material under the terms of this Agreement shall be reinstated, in each case, on
a date not less than ninety (90) days after Licensor gives notice to Licensee,
together with evidence reasonably satisfactory to Licensee that Licensor is able
to deliver the Proprietary Binder Material in accordance with this Agreement. No
additional fee or royalty shall be payable to Licensor in connection with the
License granted pursuant to this Section and Licensor shall be responsible for
any additional out-of-pocket costs incurred by Licensee in connection with the
production of Proprietary Binder Material pursuant to this Section.
4.7 Escrow of Binder Material Formula. As a material inducement for
Licensee entering into this Agreement and for the Buyer under the Purchase
Agreement entering into the Purchase Agreement, and in order to provide
assurance to Licensee of access to and adequate and continuing supply of the
Proprietary Binder Material during the term of this Agreement, Licensor agrees
to place in escrow with Licensee the formula and technology used to manufacture
the Proprietary Binder Material (the "Formula") as provided herein. In
connection therewith, Licensor agrees to deposit with Licensee, within ten (10)
days of the date of this Agreement, a copy of the Formula. During the term of
this Agreement, Licensor shall keep the Formula in escrow fully current by
depositing all updates and revisions thereto and related materials, as the
Formula may be updated or revised from time to time. Such supplemental deposits
will be completed no later than ten (10) days after the date of use of such
revised Formula by Licensor. Title to the Formula shall remain in Licensor, but
title to the copy thereof to be deposited in escrow hereunder shall, in the
event the Formula shall be released for use to Licensee as provided in Section
4.6, pass to and vest in Licensee. Licensee shall hold such copy of the Formula
and any supplements in a safe-deposit box at a financial institution located in
the Detroit/Ann Arbor, Michigan region designated by Licensee and reasonably
approved by Licensor. Notwithstanding
6
its ownership of a copy of the Formula in such event, Licensee's use of the
Formula shall remain subject to the terms of this Agreement.
Section 5. Records; Inspection; Confidentiality. Each party hereto
shall keep accurate records containing all data reasonably required for the
computation and verification of the amounts to be paid by the respective parties
under this Agreement, and shall permit each other party or an independent
accounting firm designated by such other party to inspect and/or audit such
records during normal business hours upon reasonable advance notice. All costs
and expenses incurred by a party in connection with such inspection shall be
borne by it. Each party agrees to hold confidential from all third parties all
information contained in records examined by or on behalf of it pursuant to this
Section 5; provided, however, that information which (i) is or becomes generally
available to the public other than as a result of an unauthorized disclosure by
the parties or their respective agents, employees, directors or representatives,
(ii) was available to the party receiving disclosure on a non-confidential basis
prior to its receiving disclosure hereunder, (iii) lawfully becomes available to
the party receiving disclosure on a non-confidential basis from a third party
source (provided that such source is not known by the party receiving disclosure
or its agents, employees, directors or representatives to be prohibited from
transmitting the information), or (iv) a party is compelled by legal process by
any court or other authority to disclose shall not be subject to the terms of
this Section 5. In the case of (iv) above, the compelled party shall give the
other party prompt written notice of such legal process in order that an
appropriate protective order can be sought and each party agrees not to oppose
the other party's efforts to prevent the disclosure of such information. At the
termination of this Agreement, all copies of such information (including,
without limitation, any reports or memoranda) shall be returned by the party
receiving disclosure.
Section 6. Enforcement Of Proprietary Rights. Licensee shall cooperate
in good faith, with Licensor's efforts to enforce its proprietary patent and
trade secret rights.
Section 7. General Representations and Warranties.
7.1 Authority. Each of Licensee and Licensor represents and warrants
that (i) the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized
on its behalf by all requisite action, corporate or otherwise, (ii) it has the
full right, power and authority to enter into this Agreement and to carry out
the terms of this Agreement, (iii) it has duly executed and delivered this
Agreement, and (iv) this Agreement is a valid and binding obligation of it
enforceable in accordance with its terms.
7.2 No Consent. Each of Licensee and Licensor represents and warrants
that no approval, consent, authorization, order, designation or declaration of
any court or regulatory authority or governmental body or any third-party is
required to be obtained by it, nor is any filing or registration required to be
made therewith by it for the consummation by it of the transactions contemplated
under this Agreement.
7.3 Intellectual Property Matters. Licensor represents and warrants
that (i) it owns, free and clear of all liens and encumbrances, patents related
to the Coal Briquetting Technology (including, but not limited to, United States
Patent Numbers 5,599,361, 5,487,764 and 5,453,103) and has developed the Coal
Briquetting Technology, including, but not limited to,
7
printed and not printed technical data, know-how, trade secrets, copyrights, and
other intellectual property rights and all other scientific or technical
information in whatever form relating to, embodied in or used in the process to
produce synthetic coal fuel briquettes from waste coal dust, coal fines, run of
mine coal and other similar coal derivatives, and, the right to freely make,
use, sell and exploit Proprietary Binder Material used in manufacturing
synthetic coal fuel briquettes from waste coal dust, coal fines and other
similar coal derivatives, (ii) it has the right and power to grant to Licensee
the licenses granted herein, and (iii) the sale or use of the rights,
Proprietary Binder Material and/or licenses granted herein as contemplated by
this Agreement will not infringe any third-party's intellectual property rights.
7.4 Indemnification. Each party agrees to indemnify, defend and hold
harmless the other party and its partners, directors, officers, members, agents,
representatives, subsidiaries and affiliates from and against any and all
claims, demands or suits (by any party, including any governmental entity),
losses, liabilities, damages, obligations, payments, costs and expenses
(including the costs and expenses of enforcing this indemnification and
defending any and all actions, suits, proceedings, demands and assessments,
which shall include reasonable attorneys' fees and court costs) resulting from,
relating to, arising out of, or incurred in connection with any breach of any of
the representations, warranties and/or covenants contained in this Agreement.
Section 8. Term. The term of this Agreement is for the period
commencing on the Effective Date of this Agreement and ending on the later of
(a) 31 December 2007, (b) the full term of Section 29 of the Code, or (c) the
last to expire of the U.S. patents in existence at the effective date of this
Agreement that disclose and claim Covol's proprietary Coal Briquetting
Technology as defined herein. Any extension of this Agreement must be in
writing, signed by both parties.
Section 9. Termination. This Agreement shall terminate upon the
termination date set forth in Section 8, unless the Agreement is terminated
sooner pursuant to this Section 9.
9.1 Termination for Cause. In addition to any other remedies that may
exist, either party may terminate this Agreement for cause in the event the
other party commits a material breach of any provision of this Agreement by
giving the other party at least sixty (60) days prior written notice of such
termination, unless such default or breach is cured within said sixty (60) days.
If either party terminates this Agreement pursuant to this Section 9, Licensee
shall promptly return and cause all agents of Licensee to promptly return to
Licensor all Confidential Information and all Coal Briquetting Technology then
in Licensee's possession, and Licensee shall not thereafter use for its own
commercial benefit or disclose to any third person any Confidential Information
or Coal Briquetting Technology during the period ending three (3) years from the
date of such termination. Notwithstanding the foregoing, information which (i)
is or becomes generally available to the public other than as a result of an
unauthorized disclosure by the Licensee or its respective members, agents,
employees, directors or representatives, (ii) was available to the Licensee on a
non-confidential basis prior to its receiving disclosure hereunder, (iii)
lawfully becomes available to the Licensee on a non-confidential basis from a
third party source (provided that such source is not known by the Licensee or
its members, agents, employees, directors or representatives to be prohibited
from transmitting the information), or (iv) the Licensee is compelled by legal
process by any court or other authority to disclose shall not be subject to the
terms of the duty to protect Confidential Information set forth in this section.
In the case of (iv)
8
above, the Licensee shall give the Licensor prompt written notice of such legal
process in order that an appropriate protective order can be sought and Licensee
agrees not to oppose Licensor's efforts to prevent the disclosure of
Confidential Information.
9.2 Termination for Insolvency or Ceasing Business. This Agreement may
be terminated by either party if:
(a) The other party becomes insolvent or is unable to pay its
debts as they fall due, seeks protection voluntarily or
involuntarily under any law relating to bankruptcy,
receivership, insolvency, administration, liquidation,
dissolution or similar law of any jurisdiction (other than for
the purposes of a reorganization with a view to continuing the
business as a going concern under relevant bankruptcy or
insolvency proceedings) or enters into a general assignment or
arrangement or a composition with or for the benefit of its
creditors; or
(b) The other party takes any step (including the filing or
presentation of a petition, the convening of a meeting or the
filing of an application or consent) in any jurisdiction for,
or with a view to, the appointment of an administrator,
liquidator, receiver, trustee, custodian or similar official
(other than for the purposes of a reorganization with a view
to continuing the business as a going concern under relevant
bankruptcy or insolvency proceedings) for such party and/or
the whole or any part of the business, undertaking, property,
assets, receiver or uncalled capital of such party Licensee or
any such person is appointed.
9.3 Effect of Termination. Upon termination of this Agreement, all
rights granted to and future obligations of the parties shall immediately cease;
however termination shall not relieve either party of its obligations accrued
during the term of this Agreement (including any pre-termination obligation
Licensee may have to pay Licensor) which has not been fulfilled, and all
representations, warranties, indemnification obligations and confidentiality
agreements made herein shall survive termination of this Agreement.
Section 10. Effectiveness of Certain Provisions. Notwithstanding
anything herein to the contrary, Licensee shall not be obligated under Sections
2.3, 3.1 or 4.1 hereof unless and until Licensee has entered into binding
agreements with LG&E to relocate and place the Facility at the LG&E Site and to
sell the output of the Facility to LG&E, all pursuant to terms and conditions
mutually acceptable to Licensee and LG&E.
Section 11. Waiver. The failure of any party to enforce at any time any
provision of this Agreement shall not be construed as a waiver of such provision
or the right thereafter to enforce each and every provision. No waiver by any
party, either express or implied, of any breach of any of the provisions of this
Agreement shall be construed as a waiver of any other breach of such term or
condition.
Section 12. Severability. If any provision of this Agreement shall be
held by a court of competent jurisdiction to be invalid or unenforceable in any
respect for any reason, the validity
9
and enforceability of any such provision in any other respect and of the
remaining provisions of this Agreement shall not be in any way impaired.
Section 13. Notices. All notices required or authorized by this
Agreement shall be effective upon receipt and given to the parties in writing by
fax, mail, or courier as follows:
To Licensor: Xxxxx X. Xxxx, President
Covol Technologies, Inc.
0000 Xxxxx Xxxxxxxx Xxxx
Xxxx, XX 00000
Fax: (000) 000-0000
To Licensee: DTE Kentucky, L.L.C.
000 Xxxxx Xxxx Xxxxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Attn: Manager of Assets
With a copy to:
DTE Energy Services
000 Xxxxx Xxxx Xxxxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Attn: General Counsel
Section 14. Remedies Cumulative. Remedies provided under this Agreement
shall be cumulative and in addition to other remedies provided by law or in
equity.
Section 15. Entire Agreement. This Agreement, together with the
Transaction Documents (as defined in the Purchase Agreement), constitutes the
entire agreement of the parties relating to the subject matter hereof. There are
no promises, terms, conditions, obligations, or warranties other than those
contained herein and therein. This Agreement and the Transaction Documents
supersede any and all prior communications, representations, or agreements,
verbal or written, between the parties relating to the subject matter hereof.
This Agreement may not be amended except in writing signed by the parties
hereto.
Section 16. Governing Law. This Agreement shall be governed in
accordance with the laws of the State of New York, exclusive of its conflict of
laws rules.
Section 17. Assignment. This Agreement may not be assigned, in whole or
in part, by any party without the written consent of the other party, which
consent shall not be unreasonably withheld, except that Licensor and Licensee
shall have the right to assign their respective rights and obligations under
this Agreement to any entity which is controlled by Licensor or Licensee, as the
case may be, and of which Licensor or Licensee, as the case may be, owns,
directly or indirectly, at least fifty percent (50%) of each class of its
outstanding securities, provided that no
10
such assignment shall release Licensor or Licensee, as the case may be, from
their respective obligations hereunder.
Executed by the duly authorized representative of the parties on the
date and year first above written.
COVOL TECHNOLOGIES, INC. DTE KENTUCKY, L.L.C.
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxxxxx
----------------------------- ----------------------
Name: Xxxx X. Xxxxxx Name: Xxxxx X. Xxxxxxxxx
Title: Chief Executive Officer Title: President
11
