Events of Default and Termination. a. This Agreement shall terminate automatically upon the earliest to occur of the following: i. Licensee voluntarily files a petition, or has a involuntary petition filed against it, under the Bankruptcy Act; or enters into any voluntary assignment for the benefit of its creditors; or appoints, or has appointed on its behalf, a receiver, liquidator or trustee of or with respect to substantially all of its property or assets, which petition, assignment or appointment is not dismissed, terminated or resolved within ninety (90) days following the commencement thereof; ii. The expiration of the Term (as may be extended from time-to-time in accordance with Section 4 above); or iii. The termination of this Agreement due to an Event of Default as more particularly specified in this Section 10 below. b. The following shall be considered an “Event of Default” by Licensee: i. Licensee’s third (3rd) failure to pay the Minimum Payment (to the extent applicable) due within 15 business days of the due date; ii. Without regard to the Minimum Payment due for a particular Reporting Period, Licensee’s failure to pay to Licensor during a particular Reporting Period an amount equal to at least the sum of the Royalty fees due for such Reporting Period within fifteen (15) business days of the due date; iii. Licensee’s failure to deliver to Licensor the Royalty Report due for a Reporting Period within 15 business days of the due date; iv. Licensee’s assignment of this Agreement in violation of the terms set forth in Section 16.l below; v. Licensee’s failure to maintain appropriate insurance pursuant to the terms set forth in Section 9; vi. Licensee’s material breach of any other provision of this Agreement. c. The following shall be considered an “Event of Default” by Licensor: i. Licensor’s grant of a license of the Intellectual Property to a third party in the Field of Use in the Territory during the Term; ii. Licensor’s loss of Patent Rights under any litigation proceeding; iii. The termination of the Ioteq Master License Agreement; iv. Licensor’s failure to pay any necessary fees for the continuation of the Patent Rights, or any patents granted pursuant to the U.S. Patent Applications related to the Intellectual Property; v. Licensor voluntarily files a petition, or has a involuntary petition filed against it, under the Bankruptcy Act; or enters into any voluntary assignment for the benefit of its creditors; or appoints, or has appointed on its behalf, a receiver, liquidator or trustee of or with respect to substantially all of its property or assets, which petition, assignment or appointment is not dismissed, terminated or resolved within ninety (90) days following the commencement thereof; and vi. Licensor’s material breach of any other provision of this Agreement. d. Upon an Event of Default by either Party, the non-breaching Party may, at its sole option, provide written notice to the breaching Party of such Event of Default (a "Default Notice"), which Default Notice shall specify in reasonable detail the nature of the alleged Event of Default and the actions that must be reasonably taken by the breaching Party to cure same. The breaching Party shall have a period of fifteen (15) business days’ following receipt of the Default Notice (the “Grace Period”) to cure such Event of Default, and no actions shall be taken, or remedies sought or obtained, by the non-breaching Party as a result of such Event of Default unless the Grace Period has expired without such Event of Default having been cured. Notwithstanding the foregoing, if the Event of Default is of a nature that cannot be reasonably cured within fifteen (15) business days, then provided the defaulting Party commences such cure within said fifteen (15) business day period and thereafter diligently pursues such cure, the Grace Period shall be extended as reasonably necessary to allow such cure, provided that the Grace Period shall in no event be longer than thirty (30) days following receipt of the Default Notice. e. In the case of an Event of Default by Licensee which is not cured within the applicable Grace Period, Licensor shall have the right, as its sole recourse and remedy against Licensee (but without limiting the indemnity provisions of Section 15 below), to terminate this Agreement by written notice to Licensee and to recover all Royalty fees (including the Minimum Payments, if applicable) due through the termination hereof, and Licensor shall be entitled to enforce the termination provisions of Section 11 below. f. In the case of an Event of Default by Licensor which is not cured within the applicable Grace Period, Licensee shall have the right, as its sole recourse and remedies against Licensor (but without limiting the indemnity provisions of Section 15 below), to (i) terminate this Agreement by written notice to Licensor and to recover all damages incurred by Licensee as result thereof, (ii) keep this Agreement in effect in accordance with its terms, recover damages incurred by Licensee as a result of Licensor's default, and seek and obtain injunctive and other equitable relief (including specific performance) as appropriate in order for Licensee to receive the benefits of this Agreement, and/or (iii) obtain an assignment from Licensor of the rights and benefits of the Ioteq Master License Agreement. The foregoing remedies shall, as applicable and appropriate, be cumulative and not exclusive.
Appears in 2 contracts
Samples: Sub License Agreement (Biolargo, Inc.), Sublicense Agreement (Biolargo, Inc.)
Events of Default and Termination. a. This Agreement shall terminate automatically upon the earliest to occur of the following:
i. Licensee voluntarily files a petition, or has a an involuntary petition filed against it, under the Bankruptcy Act; or enters into any voluntary assignment for the benefit of its creditors; or appoints, or has appointed on its behalf, a receiver, liquidator or trustee of or with respect to substantially all of its property or assets, which petition, assignment or appointment is not dismissed, terminated or resolved within ninety (90) days following the commencement thereof;
ii. The expiration of the Term (as may be extended from time-to-time in accordance with Section 4 abovetime); or
iii. The termination of this Agreement due to an Event of Default as more particularly specified in this Section 10 belowaccordance with the following.
b. The following shall be considered an “Event of Default” by Licensee:
i. Licensee’s third fourth (3rd4th) failure to pay the Minimum Payment (to the extent applicable) due within 15 business 30 days after receipt of written notice of failure to timely pay by of the due date;
ii. Without regard to the Minimum Payment due for a particular Reporting Period, Licensee’s failure to pay to Licensor during a particular Reporting Period an amount equal to at least the sum of the Royalty fees due for such Reporting Period within fifteen thirty (1530) business days of the due date;
iii. Licensee’s failure to deliver to Licensor the Royalty Report due for a Reporting Period within 15 business 30 days of the due date;
iv. Licensee’s assignment of this Agreement in violation of the terms set forth in Section 16.l belowforth;
v. Licensee’s failure to maintain appropriate insurance pursuant to the terms set forth in Section 9;forth; and,
vi. Licensee’s material breach of any other provision of this Agreement.
c. The following shall be considered an “Event of Default” by Licensor:
i. Licensor’s grant of a license of the Intellectual Property to a third party in the Field of Use in the Territory during the Term;
ii. Licensor’s loss of any Patent Rights under any litigation proceedingrights;
iii. The termination of the Ioteq Master License Agreement;
iv. Licensor’s failure to pay any necessary fees for the continuation of the Patent Rights, or any patents granted pursuant to the U.S. Patent Applications related to the Intellectual PropertyPatents;
v. iv. Licensor voluntarily files a petition, or has a an involuntary petition filed against it, under the Bankruptcy Act; or enters into any voluntary assignment for the benefit of its creditors; or appoints, or has appointed on its behalf, a receiver, liquidator or trustee of or with respect to substantially all of its property or assets, which petition, assignment or appointment is not dismissed, terminated or resolved within ninety (90) days following the commencement thereof; and
vi. v. Licensor’s material breach of any other provision of this Agreement.
d. Upon an Event of Default by either Party, the non-breaching Party may, at its sole option, provide written notice to the breaching Party of such Event of Default (a "“Default Notice"”), which Default Notice shall specify in reasonable detail the nature of the alleged Event of Default and the actions that must be reasonably taken by the breaching Party to cure same. The breaching Party shall have a period of fifteen thirty (1530) business days’ following receipt of the Default Notice (the “Grace Period”) to cure such Event of Default, and no actions shall be taken, or remedies sought or obtained, by the non-breaching Party as a result of such Event of Default unless the Grace Period has expired without such Event of Default having been cured. Notwithstanding the foregoing, if the Event of Default is of a nature that cannot be reasonably cured within fifteen thirty (1530) business days, then provided the defaulting Party commences such cure within said fifteen thirty (1530) business day period and thereafter diligently pursues such cure, the Grace Period shall be extended as reasonably necessary to allow such cure, provided that the Grace Period shall in no event be longer than thirty (30) days following receipt of the Default Notice.
e. In the case of an Event of Default by Licensee which is not cured within the applicable Grace Period, Licensor shall have the right, as its sole recourse and remedy against Licensee (but without limiting the indemnity provisions of Section 15 belowprovisions), to terminate this Agreement by written notice to Licensee and to recover all Royalty fees and Sublicensing Fees (including the Minimum Payments, if applicable) due through the termination hereof, and Licensor shall be entitled to enforce the termination provisions of Section 11 belowprovisions.
f. In the case of an Event of Default by Licensor which is not cured within the applicable Grace Period, Licensee shall have the right, as its sole recourse and remedies against Licensor (but without limiting the indemnity provisions of Section 15 belowprovisions), to (i) terminate this Agreement by written notice to Licensor and to recover all damages incurred by Licensee as a result thereof, or (ii) keep this Agreement in effect in accordance with its terms, recover damages incurred by Licensee as a result of Licensor's ’s default, and seek and obtain injunctive and other equitable relief (including specific performance) as appropriate in order for Licensee to receive the benefits of this Agreement, and/or (iii) obtain an assignment from Licensor of the rights and benefits of the Ioteq Master License Agreement. The foregoing remedies shall, as applicable and appropriate, be cumulative and not exclusive.
Appears in 1 contract
Samples: License Agreement (Biolargo, Inc.)
Events of Default and Termination. a. This Agreement shall terminate automatically upon the earliest to occur of the following:
i. Licensee voluntarily files a petition, or has a involuntary petition filed against it, under the Bankruptcy Act; or enters into any voluntary assignment for the benefit of its creditors; or appoints, or has appointed on its behalf, a receiver, liquidator or trustee of or with respect to substantially all of its property or assets, which petition, assignment or appointment is not dismissed, terminated or resolved within ninety (90) days following the commencement thereof;
ii. The expiration of the Term (as may be extended from time-to-time in accordance with Section 4 abovetime); or
iii. The termination of this Agreement due to an Event of Default as more particularly specified in this Section 10 belowDefault.
b. The following shall be considered an “Event of Default” by Licensee:
i. Licensee’s third (3rd) failure to pay the Minimum Payment (to the extent applicable) due within 15 business days of the due date;
ii. Without regard to the Minimum Payment due for a particular Reporting Period, Licensee’s failure to pay to Licensor during a particular Reporting Period an amount equal to at least the sum of the Royalty fees due for such Reporting Period within fifteen (15) business days of the due date;
iii. Licensee’s failure to deliver to Licensor the Royalty Report due for a Reporting Period within 15 business days of the due date;
iv. Licensee’s assignment of this Agreement in violation of the terms set forth in Section 16.l belowforth;
v. Licensee’s failure to maintain appropriate insurance pursuant to the terms set forth in Section 9;forth; and,
vi. Licensee’s material breach of any other provision of this Agreement.
c. The following shall be considered an “Event of Default” by Licensor:
i. Licensor’s grant of a license of the Intellectual Property to a third party in the Field of Use in the Territory during the Term;
ii. Licensor’s loss of Patent Rights under any litigation proceeding;
iii. The termination Licensor’s failure to maintain appropriate insurance (including, without limitation, insurance required by the Ioteq License Agreement) pertaining to the Territory;
iv. Licensor’s default or breach of the provisions of or in connection with the Ioteq Master License Agreement;
iv. v. Licensor’s failure to pay any necessary fees for the continuation of the Patent Rights, or any patents granted pursuant to the U.S. Patent Applications related to the Intellectual Property;
v. vi. Licensor voluntarily files a petition, or has a involuntary petition filed against it, under the Bankruptcy Act; or enters into any voluntary assignment for the benefit of its creditors; or appoints, or has appointed on its behalf, a receiver, liquidator or trustee of or with respect to substantially all of its property or assets, which petition, assignment or appointment is not dismissed, terminated or resolved within ninety (90) days following the commencement thereof; and
vivii. Licensor’s material breach of any other provision of this Agreement.
d. Upon an Event of Default by either Party, the non-breaching Party may, at its sole option, provide written notice to the breaching Party of such Event of Default (a "“Default Notice"”), which Default Notice shall specify in reasonable detail the nature of the alleged Event of Default and the actions that must be reasonably taken by the breaching Party to cure same. The breaching Party shall have a period of fifteen (15) business days’ following receipt of the Default Notice (the “Grace Period”) to cure such Event of Default, and no actions shall be taken, or remedies sought or obtained, by the non-breaching Party as a result of such Event of Default unless the Grace Period has expired without such Event of Default having been cured. Notwithstanding the foregoing, if the Event of Default is of a nature that cannot be reasonably cured within fifteen (15) business days, then provided the defaulting Party commences such cure within said fifteen (15) business day period and thereafter diligently pursues such cure, the Grace Period shall be extended as reasonably necessary to allow such cure, provided that the Grace Period shall in no event be longer than thirty (30) days following receipt of the Default Notice.
e. In the case of an Event of Default by Licensee which is not cured within the applicable Grace Period, Licensor shall have the right, as its sole recourse and remedy against Licensee (but without limiting the indemnity provisions of Section 15 belowprovisions), to terminate this Agreement by written notice to Licensee and to recover all Royalty fees (including the Minimum Payments, if applicable) due through the termination hereof, and Licensor shall be entitled to enforce the termination provisions of Section 11 belowprovisions.
f. In the case of an Event of Default by Licensor which is not cured within the applicable Grace Period, Licensee shall have the right, as its sole recourse and remedies against Licensor (but without limiting the indemnity provisions of Section 15 belowprovisions), to (i) terminate this Agreement by written notice to Licensor and to recover all damages incurred by Licensee as result thereof, (ii) keep this Agreement in effect in accordance with its terms, recover damages incurred by Licensee as a result of Licensor's default, and seek and obtain injunctive and other equitable relief (including specific performance) as appropriate in order for Licensee to receive the benefits of this Agreement, (iii) cure the Licensor’s default of the Ioteq License Agreement, and offset Royalties due to Licensor in like amount, and/or (iiiiv) obtain an assignment from Licensor of the rights and benefits of the Ioteq Master License Agreement. The foregoing remedies shall, as applicable and appropriate, be cumulative and not exclusive.
Appears in 1 contract
Events of Default and Termination. a. This Agreement shall terminate automatically upon the earliest to occur (a) Any of the followingfollowing acts or occurrences will constitute an Event of Default by Consultant pursuant to this Agreement:
i. Licensee voluntarily (i) Failure on the part of Consultant to observe or perform in any material respect the following covenants:
(A) Failure on the part of Consultant to keep in full effect its existence as an entity under the laws of its incorporation or organization and to obtain and preserve its Qualification.
(B) Consultant merges or consolidates with any other Person without the written consent of Owner.
(C) Consultant resigns from the obligations and duties imposed upon it by this Agreement other than as a result of (i) a change in law rendering Consultant's duties under this Agreement no longer permissible under applicable PRC Law or, (ii) receipt by Consultant of a notice from a relevant governmental or regulatory authority to the effect that Consultant's duties under this Agreement are not permissible under applicable PRC Law, or (iii) a termination of this Agreement pursuant to Article VI or Section 7.01.
(D) Consultant assigns or transfers this Agreement or any of its rights, powers, duties or obligations under this Agreement without the prior written consent of Owner.
(E) Consultant fails to use its best efforts to maintain and preserve in full force and effect its Qualification or Consultant takes any action to jeopardize the continuing validity of its Qualification.
(ii) Failure on the part of Consultant to observe or perform in any material respect any other covenant or agreement on the part of Consultant set forth in this Agreement;
(iii) Consultant files a petitionpetition under applicable insolvency laws or a decree or order of a court or agency or supervisory authority having jurisdiction in respect of Consultant for the appointment of a receiver or liquidator in any insolvency, readjustment of debt, or has a involuntary petition filed against itsimilar proceeding, under the Bankruptcy Act; or enters into any voluntary assignment for the benefit winding-up or liquidation of its creditors; affairs, has been entered against Consultant and such filing, decree or appointsorder has remained in force undischarged or unstayed for a period of sixty (60) days;
(iv) Consultant consents to the appointment of a receiver or liquidator in any insolvency, readjustment of debt, or has appointed on its behalf, a receiver, liquidator or trustee similar proceeding of or with respect relating to Consultant or of or relating to all or substantially all of its property property;
(v) Violation by Consultant of any material provision of PRC Law or assetsany judgment of any court or governmental authority applicable to Consultant or any policies required to be complied by Consultant under this Agreement including the FCPA, Citigroup Policies and Integrity Policy;
(vi) Any actual or potential fraud and/or criminal activities on the part of Consultant;
(vii) Failure of Consultant to take reasonable steps to remedy or otherwise cure any material monetary damages caused by any violation of PRC Law by any of Consultant's agents or non-managerial employees that results in a material adverse effect on Owner or the Assets;
(viii) Consultant violates any material provision of the company policy of Consultant or any other material agreement to which petitionConsultant is a party that would, assignment in each case, materially impair Consultant's ability to perform its obligations under this Agreement;
(ix) Any representation, warranty or appointment statement of Consultant made in this Agreement or any certificate, report or other writing delivered pursuant to this Agreement proves to be incorrect in any material respect as of the time made;
(x) Consultant fails to submit reports in the time and manner specified in this Agreement or as requested by Owner from time to time; or
(xi) Consultant fails to allow inspections or audits as required under the terms of this Agreement.
(b) Any of the following acts or occurrences will constitute an Event of Default of Owner:
(i) Failure on the part of Owner to observe or perform in any material respect any covenant or agreement on the part of Owner set forth in this Agreement that continues unremedied for a period of thirty (30) days after the date on which written notice of such failure, requiring the failure to be remedied, has been given to Owner by Consultant; provided, however, that if such breach is capable of being remedied but is of the nature that it cannot dismissedbe reasonably expected to be remedied within such thirty-day (30-day) period and Owner is using its good faith efforts to cure such breach, terminated or resolved within the 30-day period will be extended for up to an additional ninety (90) days following so long as Owner continues to use good faith efforts to cure the commencement thereofbreach;
(ii. The expiration ) Owner files a petition under applicable insolvency laws or a decree or order of a court or agency or supervisory authority having jurisdiction in respect of Owner for the Term appointment of a receiver or liquidator in any insolvency, readjustment of debt, or similar proceeding, or for the winding-up or liquidation of its affairs, has been entered against Owner and such filing, decree or order has remained in force undischarged or unstayed for a period of sixty (as may be extended from time-to-time in accordance with Section 4 above); or60) days;
(iii. The termination of this Agreement due to an Event of Default as more particularly specified in this Section 10 below.
b. The following shall be considered an “Event of Default” by Licensee:
i. Licensee’s third (3rd) failure to pay the Minimum Payment (Owner consents to the extent applicable) due within 15 business days of the due date;
ii. Without regard to the Minimum Payment due for a particular Reporting Period, Licensee’s failure to pay to Licensor during a particular Reporting Period an amount equal to at least the sum of the Royalty fees due for such Reporting Period within fifteen (15) business days of the due date;
iii. Licensee’s failure to deliver to Licensor the Royalty Report due for a Reporting Period within 15 business days of the due date;
iv. Licensee’s assignment of this Agreement in violation of the terms set forth in Section 16.l below;
v. Licensee’s failure to maintain appropriate insurance pursuant to the terms set forth in Section 9;
vi. Licensee’s material breach of any other provision of this Agreement.
c. The following shall be considered an “Event of Default” by Licensor:
i. Licensor’s grant appointment of a license receiver or liquidator in any insolvency, readjustment of the Intellectual Property to a third party in the Field of Use in the Territory during the Term;
ii. Licensor’s loss of Patent Rights under any litigation proceeding;
iii. The termination of the Ioteq Master License Agreement;
iv. Licensor’s failure to pay any necessary fees for the continuation of the Patent Rightsdebt, or any patents granted pursuant to the U.S. Patent Applications related to the Intellectual Property;
v. Licensor voluntarily files a petition, or has a involuntary petition filed against it, under the Bankruptcy Act; or enters into any voluntary assignment for the benefit of its creditors; or appoints, or has appointed on its behalf, a receiver, liquidator or trustee similar proceeding of or with respect relating to Owner or of or relating to all or substantially all of its property or assets, which petition, assignment or appointment is not dismissed, terminated or resolved within ninety (90) days following the commencement thereofproperty; and
vi. Licensor’s material breach of any other provision of this Agreement.
d. Upon an Event of Default by either Party, the non-breaching Party may, at its sole option, provide written notice to the breaching Party of such Event of Default (a "Default Notice"), which Default Notice shall specify in reasonable detail the nature of the alleged Event of Default and the actions that must be reasonably taken by the breaching Party to cure same. The breaching Party shall have a period of fifteen (15) business days’ following receipt of the Default Notice (the “Grace Period”) to cure such Event of Default, and no actions shall be taken, or remedies sought or obtained, by the non-breaching Party as a result of such Event of Default unless the Grace Period has expired without such Event of Default having been cured. Notwithstanding the foregoing, if the Event of Default is of a nature that cannot be reasonably cured within fifteen (15) business days, then provided the defaulting Party commences such cure within said fifteen (15) business day period and thereafter diligently pursues such cure, the Grace Period shall be extended as reasonably necessary to allow such cure, provided that the Grace Period shall in no event be longer than thirty (30) days following receipt of the Default Notice.
e. In the case of an Event of Default by Licensee which is not cured within the applicable Grace Period, Licensor shall have the right, as its sole recourse and remedy against Licensee (but without limiting the indemnity provisions of Section 15 below), to terminate this Agreement by written notice to Licensee and to recover all Royalty fees (including the Minimum Payments, if applicable) due through the termination hereof, and Licensor shall be entitled to enforce the termination provisions of Section 11 below.
f. In the case of an Event of Default by Licensor which is not cured within the applicable Grace Period, Licensee shall have the right, as its sole recourse and remedies against Licensor (but without limiting the indemnity provisions of Section 15 below), to (i) terminate this Agreement by written notice to Licensor and to recover all damages incurred by Licensee as result thereof, (ii) keep this Agreement in effect in accordance with its terms, recover damages incurred by Licensee as a result of Licensor's default, and seek and obtain injunctive and other equitable relief (including specific performance) as appropriate in order for Licensee to receive the benefits of this Agreement, and/or (iii) obtain an assignment from Licensor of the rights and benefits of the Ioteq Master License Agreement. The foregoing remedies shall, as applicable and appropriate, be cumulative and not exclusive.or
Appears in 1 contract
Samples: Master Asset Consulting Agreement (Chinawe Com Inc)
Events of Default and Termination. a. This Agreement shall terminate automatically upon in the earliest to occur of the following:
i. event that Licensee voluntarily files a petition, or has a involuntary petition filed against it, under any laws relating to insolvency, including, without limitation, any filing under any provision of the Bankruptcy Act; or enters into any voluntary assignment arrangement for the benefit of its creditors; or appoints, or has appointed on its behalf, a receiver, liquidator or trustee of or with respect to substantially all of its property or assets, which petition, assignment or appointment is not dismissed, terminated or resolved within ninety (90) days following the commencement thereof;
ii. The expiration of the Term (as may be extended from time-to-time in accordance with Section 4 above); or
iii. The termination of this Agreement due to an Event of Default as more particularly specified in this Section 10 below.
b. The following shall be considered an “Event of Default” by Licensee”:
i. Licensee’s third (3rd) failure to pay the Minimum Payment (to the extent applicable) due within 15 business days of the due date;
ii. Without regard to the Minimum Payment due for a particular Reporting Period, Licensee’s failure to timely pay to Licensor during a particular Reporting Period an amount equal to at least the sum of the Royalty fees and Sublicensing Fees due for such Reporting Period within fifteen (15) business days of Period;
ii. Licensee’s failure to timely deliver to Licensor the Report due datefor a Reporting Period;
iii. Licensee’s failure to deliver to Licensor the Royalty Report due for a Reporting Period within 15 business days breach or default of the due date;terms of the Promissory Note related to the Initial Licensee Fee.
iv. Licensee’s assignment of this Agreement in violation of the terms set forth in Section 16.l 15.l below;.
v. Licensee’s failure to maintain appropriate insurance pursuant to the terms set forth in Section 9;
vi. Licensee’s material breach of any other provision of this Agreement.
c. The following shall be considered an “Event of Default” by Licensor:
i. Licensor’s grant of a license of the Intellectual Property to a third party in the Field of Use in the Territory during the Term, provided that Licensee has not breached one or more provisions of this Agreement, or otherwise committed an Event of Default;
ii. Licensor’s loss of Patent Rights under any litigation proceeding;
iii. The termination of the Ioteq Master License Agreement;
ivvi. Licensor’s failure to pay any necessary fees for the continuation of the Patent RightsU.S. Patents, or any patents granted pursuant to the U.S. Patent Applications related Applications; and
vii. A Change in Control of Licensee, which occurs without the prior written consent of Licensor. Change in Control of Licensee shall be deemed to have occurred if:
(a) any “person” as such term is used in Sections 13(d) and 14(d) of the Intellectual PropertySecurities Exchange Act of 1934, as amended (the “Exchange Act”) (other than Licensee, any trustee or other fiduciary holding securities under any of Licensee’s employee benefit plan, or any entity owned, directly or indirectly, by Licensee’s shareholders (or other equity owners if Licensee is not a corporation at such time) in substantially the same proportions as their ownership of the Company's voting securities), is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act, or any successor rule or regulation thereto as in effect from time to time), directly or indirectly, of Licensee’s securities representing 50% or more of the combined voting power of Licensee’s then outstanding securities;
v. Licensor voluntarily files (b) a petitiontender offer (for which a filing has been made with the Securities and Exchange Commission which purports to comply with the requirements of Section 14(d) of the Exchange Act and the rules thereunder) is made for the stock of Licensee, upon the first to occur of (A) any time during the offer when the person (as defined in clause (i) above) making the offer owns or has accepted for payment securities of Licensee representing 25% or more of the combined voting power of Licensee’s then outstanding securities or (B) three business days before the offer is to terminate unless the offer is withdrawn first, if the person making the offer could own, by the terms of the offer plus any voting securities owned by such person, securities representing 50% or more of the combined voting power of Licensee’s outstanding securities when the offer terminates;
(c) during any period of two consecutive years, individuals who at the beginning of such period constitute the Board of Directors (or Board of Managing Members or similar if Licensee is not a involuntary petition filed against itcorporation), under and any new director or managing member (other than a director or managing member designated by a person who has entered into an agreement with Licensee to effect a transaction described in clause (a), (b), (c) or (d) of this Section 9.b.vii) whose election by the Bankruptcy ActBoard of Directors or Board of Managing Members or nomination for election by Licensee’s shareholders or members was approved by a vote of at least two-thirds of the directors or managing members then still in office who either were directors or managing members at the beginning of the two-year period or whose election or nomination for election was previously so approved, cease for any reason to constitute at least a majority of the Board of Directors or Board of Managing Members;
(d) Licensee’s shareholders (or other equity owners if Licensee is not a corporation) approve a merger or consolidation of Licensee with any other corporation or other business entity, other than a merger or consolidation that would result in Licensee’s voting securities outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than 50% of the combined voting power of voting securities of Licensee or such surviving entity outstanding immediately after such merger or consolidation; or
(e) Licensee’s shareholders (or enters into any voluntary assignment other equity owners if Licensee is not a corporation) approve a plan of complete liquidation of Licensor or an agreement for the benefit sale or disposition by Licensee of its creditors; all or appoints, or has appointed on its behalf, a receiver, liquidator or trustee of or with respect to substantially all of its property Licensee’s assets.
c. Upon any breach or assets, which petition, assignment default by either Party in the performance or appointment is not dismissed, terminated or resolved within ninety (90) days following the commencement thereof; and
vi. Licensor’s material breach observance of any other provision of its obligations under this Agreement.
d. Upon , including without limitation an Event of Default by either PartyDefault, the non-breaching Party may, at its sole option, provide written notice to the breaching Party of such Event of Default (a "Default Notice"), which Default Notice shall specify in reasonable detail the nature of the alleged Event of Default and the actions that must be reasonably taken terminate this Agreement by the breaching Party to cure same. The breaching Party shall have a period of fifteen (15) business giving 15 days’ following receipt of the Default Notice notice (the “Grace Period”) to the breaching Party. The termination shall become effective at the end of the Grace Period, unless before the completion of the Grace Period the breaching Party shall cure such Event of Defaultthe breach or default in full; provided, and no actions shall be takenhowever, or remedies sought or obtainedthat if a breaching Party has breached this Agreement three times within any 24-month period, by the non-breaching Party as a result of such Event of Default unless the Grace Period has expired without such Event of Default having been cured. Notwithstanding the foregoing, if the Event of Default is of a nature that cannot be reasonably cured within fifteen (15) business days, then provided the defaulting Party commences such cure within said fifteen (15) business day period and thereafter diligently pursues such cure, the Grace Period shall be extended as reasonably necessary to allow such cure, provided that the Grace Period shall in no event be longer than thirty (30) days following receipt of the Default Notice.
e. In the case of an Event of Default by Licensee which is not cured within the applicable Grace Period, Licensor shall have the right, as its sole recourse and remedy against Licensee (but without limiting the indemnity provisions of Section 15 below), to may terminate this Agreement by written notice immediately without providing any Grace Period to Licensee and to recover all Royalty fees (including the Minimum Payments, if applicable) due through the termination hereof, and Licensor shall be entitled to enforce the termination provisions of Section 11 belowbreaching Party.
f. In the case of an Event of Default by Licensor which is not cured within the applicable Grace Period, Licensee shall have the right, as its sole recourse and remedies against Licensor (but without limiting the indemnity provisions of Section 15 below), to (i) terminate this Agreement by written notice to Licensor and to recover all damages incurred by Licensee as result thereof, (ii) keep this Agreement in effect in accordance with its terms, recover damages incurred by Licensee as a result of Licensor's default, and seek and obtain injunctive and other equitable relief (including specific performance) as appropriate in order for Licensee to receive the benefits of this Agreement, and/or (iii) obtain an assignment from Licensor of the rights and benefits of the Ioteq Master License Agreement. The foregoing remedies shall, as applicable and appropriate, be cumulative and not exclusive.
Appears in 1 contract
Samples: License Agreement (Biolargo, Inc.)
Events of Default and Termination. a. This Agreement shall terminate automatically upon the earliest to occur (a) Any of the followingfollowing acts or occurrences will constitute an Event of Default by Consultant pursuant to this Agreement:
i. Licensee voluntarily (i) Failure on the part of Consultant to observe or perform in any material respect the following covenants:
(A) Failure on the part of Consultant to keep in full effect its existence as an entity under the laws of its incorporation or organization and to obtain and preserve its Qualification.
(B) Consultant merges or consolidates with any other Person without the written consent of Owner.
(C) Consultant resigns from the obligations and duties imposed upon it by this Agreement other than as a result of (i) a change in law rendering Consultant's duties under this Agreement no longer permissible under applicable PRC Law or, (ii) receipt by Consultant of a notice from a relevant governmental or regulatory authority to the effect that Consultant's duties under this Agreement are not permissible under applicable PRC Law, or (iii) a termination of this Agreement pursuant to Article VI or Section 7.01.
(D) Consultant assigns or transfers this Agreement or any of its rights, powers, duties or obligations under this Agreement without the prior written consent of Owner.
(E) Consultant fails to use its best efforts to maintain and preserve in full force and effect its Qualification or Consultant takes any action to jeopardize the continuing validity of its Qualification.
(ii) Failure on the part of Consultant to observe or perform in any material respect any other covenant or agreement on the part of Consultant set forth in this Agreement;
(iii) Consultant files a petitionpetition under applicable insolvency laws or a decree or order of a court or agency or supervisory authority having jurisdiction in respect of Consultant for the appointment of a receiver or liquidator in any insolvency, readjustment of debt, or has a involuntary petition filed against itsimilar proceeding, under the Bankruptcy Act; or enters into any voluntary assignment for the benefit winding-up or liquidation of its creditors; affairs, has been entered against Consultant and such filing, decree or appointsorder has remained in force undischarged or unstayed for a period of sixty (60) days;
(iv) Consultant consents to the appointment of a receiver or liquidator in any insolvency, readjustment of debt, or has appointed on its behalf, a receiver, liquidator or trustee similar proceeding of or with respect relating to Consultant or of or relating to all or substantially all of its property property;
(v) Violation by Consultant of any material provision of PRC Law or assetsany judgment of any court or governmental authority applicable to Consultant or any Citigroup Policies;
(vi) Any actual or potential fraud and/or criminal activities on the part of Consultant;
(vii) Failure of Consultant to take reasonable steps to remedy or otherwise cure any material monetary damages caused by any violation of PRC Law by any of Consultant's agents or non-managerial employees that results in a material adverse effect on Owner or the Assets;
(viii) Consultant violates any material provision of the company policy of Consultant or any other material agreement to which Consultant is a party that would, in each case, materially impair Consultant's ability to perform its obligations under this Agreement; or
(ix) Any representation, warranty or statement of Consultant made in this Agreement or any certificate, report or other writing delivered pursuant to this Agreement proves to be incorrect in any material respect as of the time made.
(b) Any of the following acts or occurrences will constitute an Event of Default of Owner:
(i) Failure on the part of Owner to observe or perform in any material respect any covenant or agreement on the part of Owner set forth in this Agreement that continues unremedied for a period of thirty (30) days after the date on which petitionwritten notice of such failure, assignment or appointment requiring the failure to be remedied, has been given to Owner by Consultant; provided, however, that if such breach is capable of being remedied but is of the nature that it cannot dismissedbe reasonably expected to be remedied within such thirty-day (30-day) period and Owner is using its good faith efforts to cure such breach, terminated or resolved within the 30-day period will be extended for up to an additional ninety (90) days following so long as Owner continues to use good faith efforts to cure the commencement thereofbreach;
(ii. The expiration ) Owner files a petition under applicable insolvency laws or a decree or order of a court or agency or supervisory authority having jurisdiction in respect of Owner for the Term appointment of a receiver or liquidator in any insolvency, readjustment of debt, or similar proceeding, or for the winding-up or liquidation of its affairs, has been entered against Owner and such filing, decree or order has remained in force undischarged or unstayed for a period of sixty (as may be extended from time-to-time in accordance with Section 4 above); or60) days;
(iii. The termination of this Agreement due to an Event of Default as more particularly specified in this Section 10 below.
b. The following shall be considered an “Event of Default” by Licensee:
i. Licensee’s third (3rd) failure to pay the Minimum Payment (Owner consents to the extent applicable) due within 15 business days of the due date;
ii. Without regard to the Minimum Payment due for a particular Reporting Period, Licensee’s failure to pay to Licensor during a particular Reporting Period an amount equal to at least the sum of the Royalty fees due for such Reporting Period within fifteen (15) business days of the due date;
iii. Licensee’s failure to deliver to Licensor the Royalty Report due for a Reporting Period within 15 business days of the due date;
iv. Licensee’s assignment of this Agreement in violation of the terms set forth in Section 16.l below;
v. Licensee’s failure to maintain appropriate insurance pursuant to the terms set forth in Section 9;
vi. Licensee’s material breach of any other provision of this Agreement.
c. The following shall be considered an “Event of Default” by Licensor:
i. Licensor’s grant appointment of a license receiver or liquidator in any insolvency, readjustment of the Intellectual Property to a third party in the Field of Use in the Territory during the Term;
ii. Licensor’s loss of Patent Rights under any litigation proceeding;
iii. The termination of the Ioteq Master License Agreement;
iv. Licensor’s failure to pay any necessary fees for the continuation of the Patent Rightsdebt, or any patents granted pursuant to the U.S. Patent Applications related to the Intellectual Property;
v. Licensor voluntarily files a petition, or has a involuntary petition filed against it, under the Bankruptcy Act; or enters into any voluntary assignment for the benefit of its creditors; or appoints, or has appointed on its behalf, a receiver, liquidator or trustee similar proceeding of or with respect relating to Owner or of or relating to all or substantially all of its property or assets, which petition, assignment or appointment is not dismissed, terminated or resolved within ninety (90) days following the commencement thereofproperty; and
vi. Licensor’s material breach of any other provision of this Agreement.
d. Upon an Event of Default by either Party, the non-breaching Party may, at its sole option, provide written notice to the breaching Party of such Event of Default (a "Default Notice"), which Default Notice shall specify in reasonable detail the nature of the alleged Event of Default and the actions that must be reasonably taken by the breaching Party to cure same. The breaching Party shall have a period of fifteen (15) business days’ following receipt of the Default Notice (the “Grace Period”) to cure such Event of Default, and no actions shall be taken, or remedies sought or obtained, by the non-breaching Party as a result of such Event of Default unless the Grace Period has expired without such Event of Default having been cured. Notwithstanding the foregoing, if the Event of Default is of a nature that cannot be reasonably cured within fifteen (15) business days, then provided the defaulting Party commences such cure within said fifteen (15) business day period and thereafter diligently pursues such cure, the Grace Period shall be extended as reasonably necessary to allow such cure, provided that the Grace Period shall in no event be longer than thirty (30) days following receipt of the Default Notice.
e. In the case of an Event of Default by Licensee which is not cured within the applicable Grace Period, Licensor shall have the right, as its sole recourse and remedy against Licensee (but without limiting the indemnity provisions of Section 15 below), to terminate this Agreement by written notice to Licensee and to recover all Royalty fees (including the Minimum Payments, if applicable) due through the termination hereof, and Licensor shall be entitled to enforce the termination provisions of Section 11 below.
f. In the case of an Event of Default by Licensor which is not cured within the applicable Grace Period, Licensee shall have the right, as its sole recourse and remedies against Licensor (but without limiting the indemnity provisions of Section 15 below), to (i) terminate this Agreement by written notice to Licensor and to recover all damages incurred by Licensee as result thereof, (ii) keep this Agreement in effect in accordance with its terms, recover damages incurred by Licensee as a result of Licensor's default, and seek and obtain injunctive and other equitable relief (including specific performance) as appropriate in order for Licensee to receive the benefits of this Agreement, and/or (iii) obtain an assignment from Licensor of the rights and benefits of the Ioteq Master License Agreement. The foregoing remedies shall, as applicable and appropriate, be cumulative and not exclusive.or
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