CONFIDENTIAL TREATMENT REQUESTED
Utah Project
Purchase Agreement
THIS LICENSE AND BINDER PURCHASE AGREEMENT (the "Agreement"), is made
and entered into as of March 7, 1997 by and between Coaltech No. 1 L.P., a
Delaware limited partnership (the "Licensee"), and Covol Technologies, Inc., a
Delaware corporation (the "Vendor"), and Utah Synfuel #1 Ltd., a Delaware
limited partnership (the "Licensor").
WHEREAS Vendor has represented that it has developed a proprietary
process to produce synthetic coal fuel extrusions and briquettes from waste coal
dust, coal fines and other coal derivatives, and that Vendor and Licensor
jointly have sufficient rights to such proprietary process pursuant to which
Licensor and Vendor are entitled to license the coal extruding and briquetting
technology to Licensee;
WHEREAS Licensor and Vendor have assigned to the Licensee ownership of
a coal extruding and briquetting facility (the "Utah Facility") located near
Price, Utah (the "Utah Project"), pursuant to the Utah Project Purchase
Agreement, dated as of March 7, 1997, as the same may be amended, supplemented
or otherwise modified from time to time (the "Purchase Agreement"); and
WHEREAS Licensee wishes to obtain and Licensor and Vendor wish to grant
to Licensee a license for the coal extruding and briquetting technology in
connection with the Utah Project on the terms and conditions set forth in this
Agreement, and Licensee wishes to obtain and Vendor wishes to sell to Licensee
the Proprietary Binder Material (as defined below) manufactured by Vendor for
use in the operation of the Utah Project.
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, Vendor and Licensee each agree as follows:
Section 1 Definitions. Capitalized terms used but not otherwise defined
herein shall have the meanings ascribed thereto in the Purchase Agreement.
"Closing Fee" has the meaning set forth in Section 3.2.1.
* This Exhibit contains confidential material which has been omitted pursuant to
a Confidential Treatment Request and replaced by asterisks. The omitted
information has been filed separately with the Commission.
"Coal Briquetting Technology" means all intellectual property,
patents (including but not limited to United States Patent Numbers 5,487,764 and
5,453,103) and applications therefor, printed and unprinted 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 object code and modifications, test procedures, program cards, tapes, disks,
algorithms and all other scientific or technical information in whatever form
relating to, embodied in or used in the proprietary process to produce synthetic
coal fuel extrusions and briquettes from waste coal dust, coal fines 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 Vendor
or Licensor; provided, however, that the defined term "Coal Briquetting
Technology" shall not include the proprietary process developed by Vendor to
produce synthetic coke extrusions and briquettes from coke breeze, iron revert
materials, or any technology for other than the processing and production of
synthetic coal fuel extrusions and briquettes.
"Commercial Use" means any usage of the Coal Briquetting
Technology for commercial exploitation (and not for research development
purposes) and any other usage to which Vendor or Licensor grants prior written
consent.
"Earned License Fee" has the meaning set forth in Section
3.2.2.
"Effective Date" means the date of this Agreement set forth
above.
"Goal Fee" has the meaning set forth in Section 3.2.1.
"Improvements" has the meaning set forth in the Section 2.3
hereof.
"Initial License Fee" has the meaning set forth in Section
3.2.
"Licensed Products" means extrusions of synthetic coal product
which embody, use or have been formed with the Coal Briquetting Technology.
"Licensee" has the meaning set forth in the preamble.
"License Fee" means the Earned License Fee and the Initial
License Fee.
"Licensor" has the meaning set forth in the preamble.
"Manufacturing Zone" means a twenty-five (25) mile radius of
the site of the Utah Facility and, in the event that, Licensor and/or Vendor
shall permit Licensee to move the manufacturing facility or expand, a
twenty-five (25) mile radius of any successor or further manufacturing site.
2
"Operation and Maintenance Agreement" means the Operation and
Maintenance Agreement, dated as of the date hereof, by and between Licensor and
Licensee.
"Production Goal Date" means the date during the term of this
Agreement when (i) the Utah Facility has, during any consecutive seven (7)-day
period, produced and sold 7,140 tons of conforming Licensed Products; and (ii)
Vendor has caused the completion of installation of the new drier machine at the
Utah Facility; and (iii) Vendor has given Licensee notice that the
above-referenced production target has been met and the above-referenced
installation has been completed.
"Proprietary Binder Material" means and refers to the binder
compound necessary for the production, by Licensee, of synthetic coal extrusions
and briquettes as contemplated under the Purchase Agreement and/or the Operation
and Maintenance Agreement and which extrusions and briquettes satisfy the
chemical change conditions of IRS private letter rulings No. 9701041 and No.
9549025 in order to constitute "qualified fuels" pursuant to the terms of
Section 29(c)1(C) of the 1986 Internal Revenue Code and with respect to which
Section 29 is applicable pursuant to Section 29(f) and 29(g) of the 1986 Code
("Qualified Fuels").
"Purchase Agreement" has the meaning set forth in the
preamble.
"Utah Project" has the meaning set forth in the preamble.
"Vendor" has the meaning set forth in the preamble.
Section 2 Grant.
2.1 General. Subject to the terms and conditions of this
Agreement, Licensor and Vendor hereby grant to Licensee, for the full and entire
term hereof, a license to use the Coal Briquetting Technology for Commercial
Use, including (i) the exclusive right in the Manufacturing Zone to use the Coal
Briquetting Technology and to make and have made Licensed Products, except that
such license shall be non-exclusive as to Pacific Corp. and Sunnyside Co. - Gen
facility, each of which is a prospective licensee of Licensor, and (ii) the
non-exclusive right in the Manufacturing Zone and elsewhere to use, sell, and/or
otherwise transfer Licensed Products. Licensee hereby accepts the license on the
terms hereof and agrees to make and have made Licensed Products only within the
Manufacturing Zone. Licensee shall not make or have made Licensed Products
outside the Manufacturing Zone, but Licensee may use, sell and otherwise
transfer Licensed Products made in the Manufacturing Zone anywhere.
2.2 Know-How and Assistance. To enable Licensee to benefit
fully from the license of the Coal Briquetting Technology, Licensor and Vendor
shall provide at Licensor's and/or Vendor's expense (i) access to all technical
information, relevant documentation, drawings, engineering specifications and
3
other know-how in either Vendor's or Licensor's possession and (ii) reasonable
access to Vendor's and Licensor's employees or agents who are familiar with the
Coal Briquetting Technology, and Improvements to the Coal Briquetting
Technology, as defined in Section 2.3. Licensor and Vendor shall further provide
to Licensee all technical advice necessary to exploit the Coal Briquetting
Technology as is reasonably requested by Licensee and relevant to the provisions
of this Agreement and Licensee shall reimburse Licensor and Vendor for its
reasonable out-of-pocket expenses associated therewith. The provisions of this
paragraph shall not limit the obligations of Licensor or Vendor under the
Operation and Maintenance Agreement and Licensee reserves all rights under the
Operation and Maintenance Agreement.
2.3 Improvements. Each of Licensor and Vendor shall notify
Licensee of any improvements, variations or modifications ("Improvements") made
by it on or to the Coal Briquetting Technology promptly after such Improvements
are made. The term "Improvements" shall include changes in the Coal Briquetting
Technology that reduce production costs, improve performance, broaden
applicability or increase marketability, but shall not include changes that do
not relate to the production process using the Coal Briquetting Technology
(i.e., changes relating solely to administrative and marketing practices and
procedures). Improvements made by Vendor, Licensor and/or Licensee shall be
owned by Vendor and shall be considered a part of the Coal Briquetting
Technology licensed hereunder and each of Vendor and Licensor hereby grants to
Licensee (without further royalty or payment) a non-exclusive license to utilize
the Improvements made by any of the parties on the same terms and conditions as
the Coal Briquetting Technology is licensed to Licensee hereunder.
2.4 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, or the Improvements, or any
aspect thereof (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, or (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), shall not be subject to the terms of this Section
2.4. 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, the Operation and Maintenance Agreement (as defined above),
and/or this Agreement; provided that the recipient of any such Confidential
Information executes a Confidentiality Agreement restricting further disclosure
of the Confidential Information.
4
****Confidential Treatment Requested
Section 3 License Fee.
3.1 License Fee. Licensee shall pay the Initial License Fee
nd Earned License Fee (as defined in Section 3.2) as a license fee to Licensor.
3.2.1 Initial License Fee. Concurrently herewith,
Licensee shall jointly pay to Licensor and Vendor in immediately
available funds the sum of One Million Four Hundred Thousand Dollars
($1,400,000) (the "Closing Fee"). Fourteen (14) days following the
Production Goal Date, Licensee shall jointly pay to Licensor and Vendor
in immediately available funds the sum of One Million One Hundred
Thousand Dollars ($1,100,000) (the "Goal Fee"). The Closing Fee paid by
Licensee together with any Goal Fee paid (if any) shall collectively
constitute the Initial License Fee. Upon payment of the Closing Fee and
the Goal Fee (if any), Licensee shall have the right to produce
Licensed Products without the payment to Vendor or Licensor of any
further Initial License Fee.
3.2.2 Earned License Fee. Licensee shall jointly pay
to Licensor and Vendor quarterly earned license payments ("Earned
License Fee") in an amount equal to the product of (i) $****, as
adjusted by the Inflation Adjustment Factor described in Section 3.2.3
below, multiplied by (ii) the MM Btu of the Licensed Products that are
Qualified Fuels manufactured and sold in each calendar quarter in
excess of **** MM Btu's of such Licensed Products (the "Base
Quantity"). If the production of Licensed Products that are Qualified
Fuels shall be less than the Base Quantity in any calendar quarter, the
difference between the Base Quantity and actual production for the
quarter shall be carried over and added to the Base Quantity for the
succeeding quarter for purpose of determining the amount of such
Licensed Products to which the Earned License Fee shall be applied.
3.2.3 Inflation Adjustment Factor. On each
anniversary date of this Agreement, commencing with first anniversary,
the amount set forth in clause (i) shall be adjusted by the percentage
equal to percentage that (y) the "inflation adjustment factor" (as set
forth in Section 29(d)(2) of the 1986 Code) calculated for the
immediately preceding year bears to (z) the "inflation adjustment
factor" calculated for the penultimate year.
3.2.4 Payment Terms. Any Earned License Fee payable
for any calendar quarter shall be due on the last day of the month
following the end of that calendar quarter. Payments shall be made by
Licensee to Licensor and shall be deemed to be received on behalf of
both Licensor and Vendor.
3.2.5 Reduction of Earned License Fee. Upon the
expiration of the last to expire of the patents licensed hereunder as a
5
****Confidential Treatment Requested
part of the Coal Briquetting Technology, the parties shall negotiate
a reduction in the Earned License Fee amount set forth in subpart (i)
of Section 3.2.2 hereof; but, in the event that the parties are unable
to agree on the amount of such reduction, Licensee has the right to
terminate the license granted under this Agreement or to continue such
license under all the same terms (payment and otherwise) as existed
prior to the termination of such patent.
Section 4 Sales of Binder.
4.1 Sale and Purchase. Vendor shall sell to Licensee, and
Licensee shall purchase from Vendor, Licensee's requirements of Proprietary
Binder Material required to operate the Utah Project. Vendor shall deliver the
Proprietary Binder Material at such times and in such amounts as requested by
Licensee. Payments for Proprietary Binder Material delivered by Vendor during
any calendar month shall be due and payable to Vendor 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 Vendor during any calendar year shall
be **** per ton of output provided, however, that on each anniversary date,
commencing with the first anniversary, the **** per ton amount shall be adjusted
by the percentage equal to the percentage that (y) the producer price index for
all commodities calculated for the immediately preceding year bears to (z) the
producer price index for all commodities calculated for the penultimate year.
4.3 Representations and Warranties. Each of Vendor and
Licensor represent and warrant as follows:
(a) Vendor shall convey to Licensee good title to all
Proprietary Binder Material purchased by Licensee from Vendor
hereunder, free and clear of any and all liens, claims and
encumbrances of any type whatsoever.
(b) All Proprietary Binder Material purchased by
Licensee from Vendor hereunder shall be of such quality and
nature as to be suitable for processing at the Utah Facility
using the Coal Briquetting Technology so as to produce
synthetic coal extrusions and briquettes which satisfies the
chemical change conditions of IRS private letter ruling No.
9701041 and No. 9549025 in order to constitute "qualified
fuel" for purposes of Section 29 of the Internal Revenue Code
of 1986 in quantities and at costs which are substantially in
accordance with the financial and operating projections
attached to this Agreement as its Exhibit "A."
(c) No Proprietary Binder Material shall contain any
Hazardous Material and all Proprietary Binder Material shall
meet all applicable laws and governmental regulations.
6
(d) At Licensee's option, Vendor shall replace, or
refund the purchase of, all non-conforming Proprietary Binder
Material.
(e) Vendor shall carry liability insurance with
respect to the Proprietary Binder Material in amounts and
coverages deemed satisfactory by Licensee and shall name
Licensee as an additional insured.
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, and all such purchase orders received by
Vendor during the term of this Agreement shall be deemed to have been accepted
by Vendor. (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, 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 Vendor at
such address as Vendor shall direct.
4.5 Delivery and Acceptance. All Proprietary Binder Material
purchased hereunder shall be delivered F.O.B. the Utah Facility. Vendor shall
provide trucks or otherwise arrange for transportation of the Proprietary Binder
Material to the Utah Facility. Vendor shall bear the expenses of loading and
tarping such trucks. Licensee shall bear the expense of unloading the trucks.
The weight of Proprietary Binder Material in each delivery shall be determined
by a comparison of the weight, on Utah Facility scales, of the delivery truck
immediately prior to unloading and its weight, on Utah Facility's scales,
immediately following unloading, as reflected in customary weighing
certificates. At Vendor's request and expense from time to time, Vendor shall
have the right to inspect Licensee's scales for accuracy. 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.
Licensee may obtain Proprietary Binder Material from other sources if Vendor is
not able to supply Licensee's requirements.
4.6 Binder Technology License. If Vendor's ability to deliver
the Proprietary Binder Material to Licensee will be interrupted or terminated
for any reason, Vendor 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), Vendor 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 to
manufacture the Proprietary Binder Material in sufficient quantities to operate
the Utah Project up to full capacity, and such technology shall be deemed "Coal
7
Briquetting Technology" for the purposes of this Agreement; provided, however,
that the license granted to Licensor under this Section 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 Vendor
gives notice to Licensee, together with evidence reasonably satisfactory to
Licensee that Vendor is able to deliver the Proprietary Binder Material in
accordance with this Agreement. No additional fee or royalty shall be payable to
Vendor in connection with the license granted pursuant to this Section.
Licensee's decision to obtain Proprietary Binder Material shall not constitute a
waiver of Licensee's rights to seek relief for Licensor's failure to supply
Licensee's requirements of Proprietary Binder or otherwise and shall not
constitute an election of remedies.
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.
Section 6 Infringement. If during the term of this Agreement a third
party has infringed any intellectual property rights associated with the Coal
Briquetting Technology or otherwise misappropriated any Coal Briquetting
Technology, Vendor and/or Licensor shall, at Vendor's and/or Licensor's expense,
institute and conduct legal actions against such third party or to enter into
such agreements or accord in settlement as are deemed appropriate by Vendor and
Licensor, in which case Vendor shall be entitled to any sums recovered from
third parties. If Vendor or Licensor do not take any action, Licensee shall have
the right to take action as a plaintiff in the prosecution of any infringement
or misappropriation action affecting the Utah Project, and Licensee shall be
entitled to any sums recovered from the third party. If Licensee and Vendor
(and/or Licensor) have jointly conducted an infringement or misappropriation
action, after each party has been reimbursed for costs and expenses incurred by
it in prosecuting the action, any sums recovered from the third party shall be
distributed to Licensee and Vendor (i) in accordance with the percentage of the
costs and expenses borne by each if Vendor is contractually obligated to
purchase the output of the Utah Project or (ii) based on the proportionate
amount of damages suffered by Licensee and Vendor as a result of the actions by
the third party from whom damages were recovered. Licensee shall always have the
right to be represented at its expense by counsel of its own selection in any
action. In no event shall Vendor enter into any agreement or settlement
inconsistent with the terms of this Agreement.
8
Section 7 Representations and Warranties.
7.1 Authority. Each of Vendor, 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 Vendor, 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.
7.3.1 Representations of Vendor. Vendor warrants that
it (i) owns, free and clear of all liens and encumbrances, all
intellectual property, patents (including but not limited to United
States Patent Numbers 5,487,764 and 5,453,103) and applications
therefor, printed and unprinted 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 proprietary process to produce synthetic
coal fuel extrusions and briquettes from waste coal dust, coal fines
and other similar coal derivatives, and, the right to freely use, sell
and exploit Proprietary Binder Material used in manufacturing synthetic
coal fuel extrusions and briquettes from waste coal dust, coal fines
and other similar coal derivatives, (ii) has the right and power to
grant to Licensee the licenses granted herein, (iii) has not made and
will not make any agreement with another in conflict with the rights
granted herein, and (iv) has no knowledge that the sale or use of the
rights, Proprietary Binder Material and/or licenses granted herein as
contemplated by this Agreement would infringe any third-party's
intellectual property rights. Vendor agrees to take all steps necessary
to maintain all of the patents hereunder at Vendor's sole expense.
7.3.2 Representations of Licensor. Licensor warrants
that it (i) has sufficient rights, free and clear of all liens and
encumbrances, to all intellectual property, patents (including but not
limited to United States Patent Numbers 5,487,764 and 5,453,103) and
applications therefor, printed and unprinted 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 proprietary process to produce synthetic
9
coal fuel extrusions and briquettes from waste coal dust, coal fines
and other similar coal derivatives, and, sufficient rights to use
and exploit Proprietary Binder Material used in manufacturing synthetic
coal fuel extrusions and briquettes from waste coal dust, coal fines
and other similar coal derivatives, (ii) has the right and power to
grant to Licensee the licenses granted herein, (iii) has not made and
will not make any agreement with another in conflict with the rights
granted herein, and (iv) has no knowledge that the sale or use of the
rights, Proprietary Binder Material and/or licenses granted herein as
contemplated by this Agreement would infringe any third-party's
intellectual property rights.
7.4 Guaranty of License. Each Vendor and Licensor hereby
represent and warrant that they have sufficient rights in the Coal Briquetting
Technology and the Proprietary Binder Material to make the license granted by
this Agreement. Licensor and Vendor agree that both Licensor and Vendor and each
of them is a "licensor" under Section 365(n) of the United States Bankruptcy
Code.
7.5 Indemnification. Each of Vendor and Licensor shall
indemnify, defend and hold harmless Licensee and its partners, directors,
officers, 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 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 by either Vendor or Licensor of any of the
representations, warranties and/or covenants contained in this Agreement.
Section 8 Term. This Agreement and the license granted hereunder shall
be for the period from the Closing Date to and including the last of (i) January
1, 2008, and (ii) the corresponding date after which tax credits may not be
accrued or otherwise be available under Section 29 of the 1986 Code in the event
of an extension of the tax credits available under Section 29 of the 1986 Code.
The parties acknowledge that the term of this Agreement and the licenses granted
hereunder are independent of the Operation and Maintenance Agreement.
Section 9 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 10 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 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.
10
Section 11 Notices. All notices required or authorized by this
Agreement shall be given to the parties hereto at the addresses, and in
accordance with the procedures, set forth in Section 12.3 of the Purchase
Agreement.
Section 12 Remedies Cumulative. Remedies provided under this Agreement
shall be cumulative and in addition to other remedies provided by law or in
equity.
Section 13 Entire Agreement. This Agreement, together with the other
Transaction Documents, 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/or in the
Transaction Documents. The Transaction Documents supersede all prior
communications, representations, or agreements, verbal or written, among the
parties relating to the subject matter hereof. This Agreement may not be amended
except in writing signed by the parties hereto.
Section 14 Governing Law. This Agreement shall be governed in
accordance with the laws of the State of Utah, exclusive of its conflict of laws
rules.
Section 15 Assignment. This Agreement may not be assigned, in whole or
in part, by any party without the written consent of each of the other parties,
which consent may be withheld by any party for any reason or for no reason in
its sole discretion, except that (i) Vendor and/or Licensor shall have the right
to assign its rights and obligations under this Agreement to any entity which is
controlled by Vendor and of which Vendor owns, directly or indirectly, at least
eighty percent (80%) of each class of its outstanding securities, provided that
no such assignment shall release Vendor and/or Licensor from its obligations
hereunder, and (ii) Licensee shall have the right to assign its rights and
obligations to Vendor in connection with any sale by Licensee to Vendor of
substantially all of the assets of the Utah Project.
11
Executed by the duly authorized representative of the parties on the
date and year first above written.
COVOL TECHNOLOGIES, INC.
By:/s/ Brent M. Cook_______________
Name: Brent M. Cook
Title: CEO/President
UTAH SYNFUEL #1 LTD.
By: /s/ Brent M. Cook_____________
Name: Brent M. Cook
Title: President of Covol Technologies, Inc.
Its: General Partner
COALTECH NO. 1 L.P.
By: /s/ Alan D. Ayers_______________
Name: Alan D. Ayers
Title: C.O.O. of Covol Technologies, Inc.
Its: General Partner
12
A-1