EXHIBIT 10.07
Confidential treatment has been requested for portions of this exhibit. The
copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
DANISH BIOGAS TECHNOLOGY, A.S.
TECHNOLOGY LICENSING AGREEMENT
TO MICROGY COGENERATION SYSTEMS, INC.
THIS AGREEMENT entered into this 12th day of May, 2000 by and among Microgy
Cogeneration Systems, Inc. ("Microgy"), a Colorado, USA corporation with its
offices at 1767A Denver West Blvd., Suite 15 , Golden, Colorado 80401, Danish
Biogas Technology, A.S., a Danish entity ("DBT"), with offices at
Udviklingsparken Aarhus, Sonderhoj 46, DK-8260 Viby J., Denmark..
WITNESSETH:
WHEREAS, Microgy has developed intellectual property, proprietary formulas,
processes, devices and other trade secrets to commercially exploit its
proprietary micro-cogeneration system which uses its exclusive bladeless
micro-turbine and generator technology (the "Microgy Turbine"), or its
conventional prime mover and generation technology, which may incorporate, at it
option, its proprietary advanced waste heat ammonia absorption process
("WHAARP") technology or other proprietary and conventional technologies that do
not include any of DBT's technologies as defined below, as appropriate to
produce and sell electricity and process cooling or heating (the "Microgy
System"); and
WHEREAS, The Microgy System is capable of producing electricity, cooling and
heating by burning methane gas or bio-gas generated from waste streams and other
sources; and
WHEREAS, DBT owns and has developed intellectual property, proprietary formulas,
processes, devices and other trade secrets to construct and operate a bio-gas
fueled electrical co-generation system (the "DBT System") consisting of its
proprietary anaerobic digester, which combines organic bio-mass wastes such as
animal manure and other high strength liquid or semi-solid organic waste streams
with other substrate such as fats, oils and grease to produce bio-gas gas (the
"DBT AD Unit"), and its proprietary cogeneration technology and integrated
process control system which uses commercially available reciprocating gas
engines modified by DBT to burn bio-gas or dual bio-gas and diesel fuel for the
generation of electricity and heat (the "DBT CHP System"); and
WHEREAS, Microgy desires to acquire a perpetual and exclusive license to
construct, own, operate and otherwise commercially exploit the DBT System and,
separately as a stand alone unit, the DBT AD Unit in the Unites States of
America and its possessions and territories, Canada and Mexico (the "Licensed
Territory"), and to acquire a perpetual and non-exclusive license to construct,
own, operate and otherwise commercially exploit the DBT System and/or the DBT AD
Unit in countries outside of the Licensed Territory, excluding Denmark and all
of the European countries; and
WHEREAS, DBT desires to grant Microgy a perpetual and exclusive license to
construct, own, operate and otherwise commercially exploit the DBT System and,
separately as a stand alone unit, the DBT AD Unit in the Licensed Territory, and
to grant to Microgy a perpetual and non-exclusive license to construct, own,
operate and otherwise commercially exploit the DBT System and/or the DBT AD Unit
in countries outside of the Licensed Territory, excluding Denmark and all of the
European countries; and
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WHEREAS, DBT desires to hold an equity position in each Microgy System project
deploying the DBT System or the DBT AD Unit developed and owned by Microgy or
its affiliates or sub-licensees in the Licensed Territory and to hold an
advisory board seat or equivalent position in any Microgy affiliate or other
related entity appropriately sub-licensed to deploy the DBT System or the DBT AD
Unit; and
WHEREAS, DBT desires to retain the exclusive right, for compensation, to manage
and supervise the bio-gas digester functions of each of the DBT Systems or DBT
AD Units installed by Microgy in the Licensed Territory;
NOW THEREFORE, for good and valuable consideration, the sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
1. GRANT OF DBT SYSTEM PERPETUAL EXCLUSIVE LICENSE. DBT hereby grants to
Microgy a perpetual and exclusive license to assemble, manufacture,
purchase, install, own, lease, sell, use, deploy, manage, operate, service
or otherwise commercially exploit in the Licensed Territory the DBT System
consisting of the integrated DBT AD Unit and the DBT CHP System and all
future upgrades, improvements and enhancements to the DBT System, the DBT
AD Unit and the DBT CHP System, as an integrated bio-gas fueled electric
co-generation system.
2. GRANT OF DBT AD UNIT PERPETUAL EXCLUSIVE LICENSE. DBT hereby grants to
Microgy a perpetual and exclusive license to assemble, manufacture,
purchase, install, own, lease, sell, use, deploy, manage, operate, service
or otherwise commercially exploit in the Licensed Territory the DBT AD
Unit as a stand alone unit separate from the DBT System and without any
requirement to use the DBT CHP System, and all future upgrades,
improvements and enhancements to the DBT AD Unit when used with the
Microgy System in all Microgy projects and developments in the Licensed
Territory.
3. GRANT OF PERPETUAL NON-EXCLUSIVE LICENSE. DBT hereby grants to Microgy a
perpetual and non-exclusive license to assemble, manufacture, purchase,
install, own, lease, sell, use, deploy, manage, operate, service or
otherwise commercially exploit the DBT System or the DBT AD Unit as a
stand alone unit separate from the DBT System without any requirement to
use the DBT CHP System, and all future upgrades, improvements and
enhancements to the DBT System or the DBT AD Unit when used with the
Microgy System in all Microgy projects and developments in all countries
outside of the Licensed Territory, excluding Denmark and all of the
European countries. Microgy shall have the right to convert this perpetual
and non-exclusive license into a perpetual exclusive license consistent
with the license terms set forth in Sections 1 and 2 above, in any country
outside of the Licensed Territory upon written approval by DBT.
4. DUTY TO ENGINEER, DESIGN AND CONSTRUCT. Microgy shall have the duty and
supervisory responsibility to construct and install each DBT System and
DBT AD Unit in all projects in the Licensed Territory. DBT shall have the
duty to (a) engineer, design and assist and advise Microgy on the
construction and installation of each DBT System or DBT AD Unit employed
by Microgy hereunder; (b) provide engineering and construction drawings,
specifications for components, construction quality standards, performance
standards, operations and maintenance requirements; and (c) provide
consulting advice to Microgy to monitor, track and troubleshoot the DBT
System, the DBT AD Unit or the DBT CHP System after deployment by Microgy
or any of its affiliates. Microgy will provide to DBT on a project by
project basis basic
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*****Certain information on this page has been omitted and filed
separately with the Securities and Exchange Commission. Confidential treatment
has been requested with respect to the omitted portions.
site and project specific information from which DBT will be compensated
for its engineering work and production of construction drawings on a per
project basis at a flat rate of ***** US per project.
5. DBT OBLIGATION TO SUPPLY MATERIAL AND EQUIPMENT. DBT will supply at
reasonable cost to Microgy all of the components necessary to construct
the DBT CHP System, the DBT System and the DBT AD Unit in the Licensed
Territory. DBT will also supply critical components of the DBT System or
DBT AD Unit gas storage system, including, but not limited to, the
rubberized gas storage bag and process controls at reasonable cost to
Microgy. DBT understands that very low cost of components and very short
shipping and delivery times are critical to the success of Microgy
projects. DBT will make all reasonable good faith efforts to keep
component costs to Microgy low and shipping and delivery times as short as
possible. DBT will use United States based construction site labor and
suppliers of basic raw materials such as steel, pumps, piping, wiring
materials and other commodity components readily available in the United
States whenever possible to keep total project costs low.
6. COOPERATION ON THE DEVELOPMENT OF NUTRIENT MANAGEMENT SYSTEMS. Microgy and
DBT agree to cooperate on the development of DBT's experimental manure
processing technology ("DBT Manure Technology") which utilizes a manure
evaporator and condenser using waste heat from the Microgy System. If DBT
makes the DBT Manure System commercially available to any customer, the
DBT Manure Technology will be considered and enhancement to the DBT System
or the DBT AD Unit as defined under Section 9 of this Agreement. DBT
hereby grants Microgy the perpetual and exclusive license to own, use,
deploy or otherwise commercially exploit the DBT Manure Technology when
used with the DBT System or the DBT AD Unit in the Licensed Territory and
a perpetual, non-exclusive license to own, use, deploy or otherwise
commercially exploit the DBT Manure Technology in all Microgy projects
incorporating the DBT System or the DBT AD Unit outside of the Licensed
Territory.
7. DBT EQUITY POSITION IN CERTAIN PROJECTS DEVELOPED. DBT will be granted an
equity ownership position of five percent (5%) in any legal entity that
owns each project developed by Microgy using the DBT System or DBT AD Unit
wherein Microgy retains an equity position or any position convertable
into equity. It is understood that one entity may develop more than one
project and multiple entities may develop one or more projects employing
the DBT System or DBT AD Unit. A prinipal of DBT will be entitled to an
advisory board seat on each project entity employing the DBT System or DBT
AD Unit.
8. SUBCONTRACTING. Microgy may subcontract with a third party or parties for
the assembly, installation, operation, supervision and maintenance of the
DBT System or DBT AD Unit; provided, however, that such subcontracting
shall not relieve DBT or Microgy from any of the provisions contained in
this agreement. DBT shall provide engineering design and performance
specifications to guide the preparation of construction documents to
install the DBT System or DBT AD Unit. Said subcontractors shall be
subject to the provisions provided for in Section 18 herein to maintain
confidentiality of the DBT System or DBT AD Unit intellectual property and
trade secrets.
9. TECHNOLOGICAL ADVANCEMENTS. Any improvements, modifications or other
changes or enhancements to the DBT System, the DBT AD Unit or the DBT CHP
System or any integral hardware components of the DBT System, the DBT AD
Unit or the DBT CHP System made by
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*****Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
DBT or Microgy shall be the sole and exclusive property of DBT. Any such
improvements, modifications or other changes or enhancements to the DBT
System, the DBT AD Unit or the DBT CHP System any integral hardware
components developed by either party shall be licensed to Microgy under
the same terms and conditions as set forth in this agreement on an
exclusive basis for use in the Licensed Territory and on a non-exclusive
basis in all projects developed by Microgy outside of the Licensed
Territory that incorporate the DBT System, the DBT AD Unit or the DBT CHP
System.
10. INTELLECTUAL PROPERTY PROTECTION. DBT and Microgy will file all necessary
patents and process patents to protect the integrated Microgy System and
DBT System or DBT AD Unit from competitive exploitation, shall be equal
owners in said patents and shall share all costs of obtaining and
maintaining said patents. DBT will make all reasonable efforts to maintain
all existing patents or other intellectual property rights on the DBT
System or DBT AD Unit and secure additional patents or other means of
protecting trade secrets as necessary to protect the integrity of the
integrated DBT System or DBT AD Unit and Microgy System.
11. SUB-LICENSING OF THE DBT SYSTEM. Microgy may sub-license the DBT System or
DBT AD Unit or any portion of the use, operation, management or
maintenance of the DBT System or DBT AD Unit to any affiliated entity
wherein Microgy has an equity interest with notice to DBT. Microgy may
only sub-license the DBT System or DBT AD Unit to a non-affiliate with the
express written permission of DBT. Further, Microgy will not permit
sub-licensees to make, assign or grant other sub-licenses of the DBT
System or DBT AD Unit.
12. LICENSING FEE. Microgy will pay to DBT a licensing fee (the "Licensing
Fee") for each installed and operating DBT System or DBT AD Unit deployed
by Microgy. The Licensing Fee shall be calculated as follows:
(a) During the first 12 months of this agreement, Microgy shall pay to
DBT an amount equal to ***** percent (*****%) the total cost of each
individual project completed by Microgy or any of its affiliates or
sub-licensees.
(b) After the first 12 months of this agreement, Microgy shall pay to
DBT an amount equal to ***** percent (*****%) of the total cost of
the next six (6) projects completed by Microgy or any of its
affiliates or sub-licensees in any calendar year; and an amount
equal to ***** percent (*****%) of the total cost of any additional
projects in excess of six (6) projects completed in that calendar
year.
(c) The total cost shall be defined as the cost of material, equipment
and direct labor, engineering design, construction management and
other expenses including project management and commissioning to
complete each individual project, less any amount paid to DBT or any
of its affiliates for engineering, design or consulting services
charged to the project, as evidenced by written invoices; not
including Microgy's profit, taxes, bonding, and finance costs, if
any.
(d) If new anaerobic digester technology appears in the market at any
time after five (5) years of the date of this Agreement which
produces one hundred percent (100%) of the methane gas produced by
the DBT AD Unit for the same amount of raw materials or by any other
process, the License Fee shall be renegotiated by the parties
hereto.
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*****Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
13. MANAGEMENT CONSULTING CONTRACT TO DBT. DBT will advise Microgy on the
management of the bio-gas digester functions of all DBT System or DBT AD
Units per separate agreement with the owner of the project. DBT will be
compensated for its consulting services at a rate of ***** Dollars U.S.
($*****) per month for each project developed by microgy or any of its
affiliates which uses the DBT System or DBT AD Unit (the "Management
Fee"). Said fee shall commence upon commercial operation of the project
and shall be adjusted annually according to the inflation rate published
by the U.S Consumer Price Index. DBT agrees to promptly report to Microgy
all operating data necessary for the safe and efficient operation of the
DBT System, the DBT AD Unit or the Microgy System. Microgy will have
overall managerial authority over each project it develops using the DBT
System or the DBT AD Unit.
14. PAYMENT TERMS. Partial proportional payment to DBT of the Licensing Fee
shall be made by Microgy within ten (10) business days after Microgy
receives progress payments and the final payment shall be paid upon
completion of each project developed. Payment to DBT of the Management Fee
will be paid monthly. All fees payable hereunder shall be paid in US funds
to the depository account specified by DBT.
15. COOPERATION BETWEEN THE PARTIES. DBT and Microgy will cooperate in the
marketing, construction, implementation, operation, maintenance, upgrading
and improvement of all DBT System, DBT AD Units and the Microgy System
developed by Microgy in the Licensed Territory. The parties agree to
communicate monthly in writing and orally as the need may arise to clarify
all issues relating to implementation of the DBT System or DBT AD Unit.
16. NON-COMPETE AND NON-CIRCUMVENTION. Microgy shall not purchase, use,
develop or otherwise participate in the development of any anaerobic
digester technology that competes with the DBT System or DBT AD Unit
during the term of this Agreement. Microgy shall not develop any anaerobic
digester technology that competes with DBT after termination of this
Agreement. For each breach of this non-compete provision, Microgy will pay
an agreed penalty of U.S. $100,000 for any one breach hereof. Microgy
reserves the right to contract with other parties to use competing
anaerobic digester technology in the Microgy System upon termination of
this Agreement. DBT agrees during the term of this Agreement not to
compete, circumvent or otherwise develop or attempt to develop any
anaerobic digester based electrical generation or cogeneration projects or
developments, whether using its system or any other system with any party
or parties other than Microgy or its affiliates in the Licensed Territory.
17. TERM OF AGREEMENT AND TERMINATION. The term of this Agreement shall be
perpetual, continuing unless terminated as set forth below.
(a) Either party may terminate this Agreement following a material
breach by the other party of any of the provisions of this Agreement
which remains uncured for a period of thirty (30) days after written
notice thereof to the breaching party. Any party hereto may seek
arbitration as to whether any alleged breach is material as to this
Agreement. Any arbitration action commenced by any party hereto
shall act to stay termination of this Agreement, pending the outcome
of the arbitration proceeding as provided for in Section 24 herein.
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(b) Either party may terminate this agreement immediately upon
delivering written notice to the other party upon or after the
filing by the other party of a petition in bankruptcy or insolvency,
or an adjudication that the other party is bankrupt or insolvent, or
the filing of a petition or answer seeking reorganization,
readjustment or rearrangement of its business under any law or
government relating to bankruptcy or insolvency, or the appointment
of a receiver for all or substantially all of the property of such
other party, or the making of any assignment or attempted assignment
for the benefit of creditors.
(c) The licensing rights granted to Microgy pursuant to this Agreement
shall include the right to continue to use the DBT System or DBT AD
Unit purchased or placed into service prior to the termination of
this Agreement, This provision shall survive the termination of this
Agreement.
18. SUPPORT AND TECHNICAL TRAINING. DBT shall provide all necessary technical,
sales and support services during construction of each project at no
charge to Microgy over the life of this agreement. Such services shall
include, but are not limited to on-going technical, operational and
maintenance support. Technical training shall include product operations
training, product performance information, installation instructions,
emergency response and any other material and necessary training as
requested by Microgy. Sales and marketing training shall include operating
characteristics, system advantages and uses, installation data and
performance and savings measures. DBT shall provide post-development
technical support and maintenance information to Microgy by e-mail,
telephone or fax, without charge. Should Microgy request technical support
from DBT at a project location, it will make the request to DBT in writing
and all reasonable travel and living costs and any other reasonable
expenses incurred by DBT shall be paid by Microgy.
19. CONFIDENTIALITY. Both the Microgy System and the DBT System or DBT AD Unit
are comprised of substantial proprietary technology which is based upon
trade secrets and other confidential information. As such, the parties
will exercise reasonable care in disclosing only so much information about
each system to their partners, professional agents, sub-contractors,
sub-licensees and other necessary personnel so as to be able to develop
the projects contemplated hereunder. The parties acknowledge that a
willful violation of this section will cause irreparable harm to the other
party and that money damages alone would be insufficient to compensate the
injured party for such harm. Accordingly, the injured party shall be
entitled to temporary and permanent injunctive relief, including temporary
restraining orders, preliminary and permanent injunctions and orders of
specific performance to enforce the obligations under this section without
the necessity of proving actual damages or of posting bond. This provision
shall not, however, diminish the injured party's right to reclaim and
recover damages for such willful breach.
20. GENERAL AND PRODUCT LIABILITY INSURANCE. Microgy shall maintain general
and product liability insurance covering the design, manufacture,
operation, maintenance and safety of the DBT System or DBT AD Unit and the
Microgy System for all developed projects in the Licensed Territory
incorporating all or any component of the DBT System or DBT AD Unit. and
shall name DBT as an additional insured. Microgy shall secure an
endorsement upon the policy giving DBT thirty (30) days prior written
notice of the effective date of any material alteration or cancellation of
such policy or policies. Microgy agrees to deliver to DBT upon request
from time to time a certificate of insurance evidencing said insurance.
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21. REPRESENTATIONS AND WARRANTIES. The parties hereto represent and warrant
as follows:
(a) DBT hereby represents and warrants to Microgy that (i) DBT has full
legal title to the DBT System, the DBT CHP System and DBT AD Unit
and the right to enter into this Agreement and to grant Microgy the
rights granted herein, (ii) that the manufacture, use and
distribution of the DBT System, the DBT CHP Unit and DBT AD Unit, as
contemplated under this Agreement, will not infringe on the
intellectual property rights or other rights of any third party,
(iii) that DBT is the owner of the patents and/or patent
applications, described in Exhibit A attached to this Agreement ,
(iv) that DBT will promptly pay all maintenance fees associated with
any issued patent for the DBT System, the DBT CHP System and the DBT
AD Unit, and (v) that DBT shall produce and convey the DBT System,
the DBT CHP System or DBT AD Unit to Microgy in a prompt manner in
accordance with Microgy's delivery requirements, and the DBT System,
the DBT CHP System or DBT AD Unit shall be of good and merchantable
quality and workmanship and shall comply with the specifications
agreed upon by the parties. DBT shall update Exhibit A when
additional patents issue, or when there is any other material change
in the information listed therein.
(b) Microgy hereby represents and warrants that it has obtained, or will
obtain, the rights to all technologies incorporated into the Microgy
System and shall apply jointly with DBT for process patents
concerning the use of the DBT System, the DBT CHP System or DBT AD
Unit with the Microgy System within three hundred and sixty (360)
days from the execution date of this Agreement. All patents
incorporating the DBT System, the DBT CHP System or the DBT AD Unit
shall be owned equally by DBT and Microgy. Further, Microgy shall
demonstrate that (i) the manufacture, use and distribution of the
Microgy System, as contemplated under this Agreement, will not
infringe on the intellectual property rights or other rights of any
third party, (ii) that Microgy is the owner of the patents and/or
patent applications described in Exhibit B attached to this
Agreement, and (iii) that Microgy will promptly pay all maintenance
fees associated with any issued patent for the Microgy System.
Microgy shall update Exhibit B when additional patents issue, or
when there is any other material change in the information listed
therein.
22. INFRINGEMENT. If any action or proceeding brought against either party to
this agreement (the "Defending Party") is based on a claim of infringement
of a proprietary right or interest arising out of the Defending Party's
use of its technology (the "Technology"), and if the Defending Party
promptly notifies the other party to this agreement (the "Other Party") in
writing of any such action or proceeding, the Defending Party shall, at
its own expense, do the following to assure the Other Party of its
continued use of the Technology: (1) defend such action or proceeding and
pay all damages, costs, losses, claims, awards, settlements, attorney's
fees and expenses, or any of them, arising out of such action or
proceeding, (2) procure for the Other Party the right to continue to use
the Technology or replace or modify it, with another comparable system
which has the Other Party's approval, such that the infringement is
removed, (3) if in any such action or proceeding a temporary restraining
order or preliminary injunction be granted, the Defending Party shall, by
giving satisfactory bond or otherwise, secure the suspension of such
restraining order or preliminary injunction. Both the Defending Party and
the Other Party shall cooperate reasonably with each other in any defense
of the actions and proceedings referred to in this section. Costs
associated with such cooperation shall be borne by the Defending Party.
The Defending Party shall
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give the Other Party prompt written notice of any potential infringement
problems of which it becomes aware, including third party infringement
upon the intellectual rights of the Defending Party related to the
Technology. The Defending Party agrees to aggressively defend, at its sole
cost and expense, any known threat of infringement upon the Technology
and, if in the opinion of a independent third party arbitrator, if the
Defending Party does not aggressively preserve the rights to the
Technology by pursuing potential infringing entities, the Other Party may
terminate this Agreement pursuant to Section 17 herein. Any delays caused
by infringement actions for which the Defending Party is responsible shall
not be considered to be delays caused by uncontrollable forces. If the
Defending Party is unable to secure the continued use by the Other Party
of the Technology, the Other Party may terminate this agreement and all
rights granted to the Other Party under the terms of this Agreement shall
remain vested in the Other Party for the actual life of all projects it
developed using the Technology. To further protect the Other Party's
interest in manufacturing, use, sales, marketing, distribution and
servicing of the technology, the Defending Party shall provide copies of
all existing and proposed licensing arrangements for other applications of
the Technology to the Other Party on a timely basis. Additionally, the
Defending Party agrees to notify the Other Party of the existence or
subsequent granting of any other licenses it may have or acquire.
23. INDEMNITY. Both parties shall indemnify and hold harmless each other, its
shareholders, directors, officers, employees and agents, from and against
any liabilities, losses, costs, damages and expenses (including reasonable
attorneys' fees) arising out of or related to (i) any defect in the DBT
System, the DBT CHP System or DBT AD Unit and the Microgy System, (ii) any
breach of the representations, warranties and covenants made by the
parties; and (iii) any losses, damages, injuries, or death to persons, or
damage to property resulting from the negligence, in whole or in part, by
the parties or any of its employees, agents, representatives, or
subcontractors. Amounts due to the parties by way of indemnification may
be offset against amounts due from either party.
24. ASSIGNMENT. Except as otherwise provided in Section 11 herein concerning
the permissible sub-licensing of the DBT System or the DBT AD Unit by
Microgy, this Agreement may not be assigned by either party in any manner,
whether voluntary or involuntary, without the written consent of the other
party (other than to a subsidiary or other affiliate, the majority of
which is owned by the respective party).
25. DISPUTE RESOLUTION. Any controversy or dispute arising out of or in
connection with this Agreement, its interpretation, performance or
termination, which the parties are unable to resolve within a reasonable
time after written notice by one party to the other of the existence of
such controversy or dispute, may be submitted to arbitration by either
party and if so submitted by either party, shall be finally settled by
arbitration conducted in accordance with the rules of conciliation and
arbitration of the International Chamber of Commerce in effect on the date
hereof. Any such arbitration shall take place in the City of Aarhus,
Denmark. Such arbitration shall be conducted in the English language and
the arbitrator shall apply the laws of the Country of Denmark. The
institution of any arbitration proceedings hereunder shall not relieve any
party of its obligation to perform hereunder during the continuance of
such arbitration proceeding. The decision of the arbitrator shall be
binding and conclusive upon the parties, their successors and assigns and
they shall comply with such decision in good faith.
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26. DEFAULT, NOTICE OF DEFAULT AND RIGHT TO CURE. In the event of default by
any party to any provision in this agreement, the effected party or
parties shall notify the defaulting party in writing with a clear
description of the nature of the default within 30 days of the date of the
default. The defaulting party shall have thirty (30) days from receipt of
the default notice to cure the default. If the parties cannot agree to a
cure for the default or otherwise disagree as to the nature of the cure,
the dispute shall be handled in accordance with the dispute resolution
provisions of section 24 herein.
27. EXCLUSIVE AGENT. Microgy shall be DBT's exclusive agent in the Licensed
Territory during the term of this Agreement.
28. ENTIRE AGREEMENT. This Agreement succeeds and replaces the agreement
between the parties dated November 17, 1999 and represents the entire
agreement between the parties with respect to the subject matter hereof,
and no modification hereof shall be effective unless contained in writing
executed by both parties.
29. WAIVER OF BREACH. Waiver by either party of a breach any provisions hereof
shall not be construed as a waiver of any subsequent breach thereof or of
any other provision.
30. SEVERABILITY. Should any part, term, or provision of this Agreement be
held to be illegal or in conflict with the laws of the United States,
Colorado, Denmark or other court of competent jurisdiction, the validity
of the remaining portions or provisions shall not be affected thereby.
31. NOTICE. Any notice required herein shall be sent by personal delivery,
certified mail or by a recognized overnight courier service to the party
entitled to receipt thereof at the address provided in the preamble to
this Agreement.
32. EXECUTION BY FAX. This Agreement may be executed by Microgy and/or DBT by
facsimile signature, which facsimile signatures shall be deemed to be
original signatures, and shall have the same force and effect as original
signatures.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first written above.
Microgy Cogeneration Systems, Inc. Danish Biogas Technology, A.S.
(MICROGY) (DBT)
By:_____________________________ By:_______________________________
Benjamin J. Brant Dr. George Aboagye Mathiesen
President President
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EXHIBIT A
DBT PATENTS, PATENT APPLICATIONS OR PATENT DISCLOSURES
In the event DBT files patent applications, this Exhibit A shall be completed in
accordance with the provisions contained in Section 20 herein.
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EXHIBIT B
MICROGY'S PATENTS, PATENT APPLICATIONS OR PATENT DISCLOSURES
This Exhibit B shall be completed in accordance with the provisions contained in
Section 20 herein.
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