Akers Biosciences, Inc.
12 June 2013
Xxxxx Biosciences, Inc.
000 Xxxxx Xxxx
Thorofare, New Jersey
08086 USA
Attention: Xxxxxx X. Xxxxxxxxx, President and CEO
| Cc: | Xxxx Xxxxxx, (EN)10 (Guernsey) Limited Xxxxxx Xxxxxxx, (EN)10 Limited |
By Email and Post
Dear Xxxxxx
Licence and Supply Agreement between Xxxxx Biosciences, Inc. (“ABI”), Chubeworkx Guernsey Limited (as successor to Sono International Limited), (EN)10 (Guernsey) Limited (formerly BreathScan International (Guernsey) Limited) and (EN)10 Limited (formerly BreathScan International Limited) dated 19 June 2012 (the “Agreement”)
We refer to our recent discussions regarding the expansion of the scope of the Agreement to worldwide coverage subject to ongoing supply agreements which XXX has entered into with third party customers. Accordingly, the Agreement shall be amended as follows:
| 1. | The definition of “Territory” shall be deleted and replaced with the following: |
““Territory’’ means worldwide.”
| 2. | The definition of “Field” shall be deleted and replaced with the following: |
““Field” means any use, including relating to the operation of vehicles, employer screening programmes and the armed forces.”
| 3. | The definition of “US Military” shall be deleted. |
| 4. | A new definition of “Existing Customers” shall be inserted into clause 1.1 as follows: |
“Existing Customers” means those parties listed in Schedule 7.”
| 5. | A new definition of “Amendment Date” shall be inserted into clause 1.1 as follows: |
“Amendment Date” shall have the meaning accorded to it in the Letter of Amendment between the Parties which amends this Agreement and is dated 12 June 2013.”
| 6. | A new clause 4.5 shall be inserted into the Agreement and read as follows: |
18-20 Le Pollet | St Xxxxx Port | Guernsey | GY 1 1WH
T + 44 20 7225 6400 | E xxxx@xxxxxxxxxx.xxx
Company No. 55801
“The exclusivity of the rights granted to the Customer by the Supplier under clauses 4.1, 4.2 and 4.3 of this Agreement shall be subject only to the supply rights of the Existing Customers in the United States of America, Canada and/or Mexico as at the Amendment Date.”
| 7. | A new clause 4.6 shall be inserted into the Agreement and read as follows: |
“4.6 The Supplier agrees that on and from the Amendment Date it shall not:
| (A) | enter into any new arrangements or new agreements (whether formal or informal) with any third party regarding the supply of any of the Products in the Territory without the Customer’s prior written consent; |
| (B) | amend or extend any existing agreements with any of its Existing Customers who resell any of the Products supplied to them by the Supplier, in any manner which increases the sale or supply to each such Existing Customer to more than 500,000 units of Products per year, without the Customer’s prior written consent; and |
| (C) | supply the Existing Customers or any other party with any Products bearing: (i) the trade xxxx XXXXX or any trade mark confusingly similar thereto; or (ii) any get-up used in connection with CHUBE branded Products or any get-up confusingly similar thereto, whether for the recipients own use or for resale. |
| 8. | The Supplier hereby restates the warranties set out in clause 17 of the Agreement as at the Amendment Date. |
| 9. | New clauses 17.1 (F) - (G) shall be inserted into the Agreement and read as follows: |
| “(F) | the list of Existing Customers in Schedule 7 of this Agreement is a full and complete list of all other parties with any rights in, or rights to the supply of, any of the Products in the Territory as at the Amendment Date; |
| (G) | no Products are supplied to, used by and/or resold by, the Existing Customers or otherwise bearing: (i) the trade xxxx XXXXX or any trade mark confusingly similar thereto; or (ii) any get-up used in connection with CHUBE branded Products or any get-up confusingly similar thereto.” |
| 10. | The Annex to this letter shall be inserted into the Agreement as Schedule 7. |
These amendments shall take effect on and from 12 June 2013 (the “Amendment Date”).
Completion of the subscription of shares and share sale described in the Memorandum of Understanding between Xxxxx Biosciences, Inc., Chubeworkx Guernsey Limited and (EN)10 (Guernsey) Limited dated 29 April 2013, shall be subject to the prior execution of this letter by all parties.
Capitalised terms used in this letter shall have the meaning given to them in the Agreement unless defined in this letter. Save as expressly agreed herein, or the Letter dated 19 June 2012 from Sono International Limited to ABI, the Agreement remains in full force and effect. This letter shall be governed by and construed in accordance with the laws of England.
18-20 Le Pollet | St Xxxxx Port | Guernsey | GY 1 1WH
T + 44 20 7225 6400 | E xxxx@xxxxxxxxxx.xxx
Company No. 55801
| 2 |
Please confirm your acceptance of these amendments by signing and returning the enclosed copy of this letter.
Yours sincerely
Xxxx Xxxxxx
for and on behalf of Chubeworkx Guernsey Limited
| Accepted and agreed: | ||
| /s/ Xxxxxx X. Xxxxxxxxx | ||
| Xxxxxx X. Xxxxxxxxx | APPROVED | |
| for and on behalf of Xxxxx Biosciences, Inc. | Xxxxx Biosciences, Inc. | |
| Xxxxxx X. Xxxxxxxxx | ||
| Accepted and agreed: | Chief Executive Officer |
Xxxx Xxxxxx
for and on behalf of (EN)10 (Guernsey) Limited
Accepted and agreed:
Xxxxxx Xxxxxxx
for and on behalf of (EN)10 Limited
18-20 Le Pollet | St Xxxxx Port | Guernsey | GY 1 1WH
T + 44 20 7225 6400 | E xxxx@xxxxxxxxxx.xxx
Company No. 55801
| 3 |
Xxxxxxx & Xxxxxxx
ANNEX
SCHEDULE 7: EXISTING CUSTOMERS
| Brand Name of Products supplied to Existing Customers |
Name of Existing Customers |
Address of Existing Customers | ||
| Alcohol “Check” | Xxxxx Biosciences, Inc. | Thorofare, New Jersey USA | ||
| Breath Scan | Xxxxx Biosciences, Inc. | Thorofare, New Jersey USA | ||
| BreathScan PRO | Xxxxx Biosciences, Inc. | Thorofare, New Jersey USA | ||
| Breath Alcohol “Check” | Xxxxx Biosciences, Inc. | Thorofare, New Jersey USA | ||
| Breath Alcohol “Check” .02 Detection System | Xxxxx Biosciences, Inc. | Thorofare, New Jersey USA | ||
| Breath Pulmo Health Check - Asthma | Xxxxx Biosciences, Inc. | Thorofare, New Jersey USA | ||
| Breath Pulmo Health Check - COPD | Xxxxx Biosciences, Inc. | Thorofare, New Jersey USA | ||
| Breath Pulmo Health Check - Lung Cancer | Xxxxx Biosciences, Inc. | Thorofare, New Jersey USA | ||
| BreathScan Legal Limit | Xxxxx Biosciences, Inc. | Thorofare, New Jersey USA | ||
| Breath Ketone “Check” | Xxxxx Biosciences, Inc. | Thorofare, New Jersey USA | ||
| Metron | Xxxxx Biosciences, Inc. | Thorofare, New Jersey USA | ||
| VIVO | Xxxxx Biosciences, Inc. | Thorofare, New Jersey USA | ||
| BreathScan | One Stop / Diinsel, SA de CV | Monterrey, NL Mexico Hidalgo, TX USA | ||
| BreathScan | Lifeloc | Wheat Ridge, CO USA | ||
| BreathScan | Micro Distributing II, Ltd | Belton, TX USA | ||
| BreathScan | Alere Toxicology | Norfolk, VA USA | ||
| BreathScan | Quest Diagnostics | Collegeville, PA USA | ||
| BreathScan | NPACT America | Jacksonville, FL USA | ||
| BreathScan | GE Oil & Gas | Oklahoma City, OK USA | ||
| BreathScan | Test Medical Symptoms at Home | Xxxxx Xxxxx, OH USA | ||
| BreathScan | VShips | Miami, FL USA | ||
| BreathScan | CLIA-Waived Inc. | San Diego, CA USA | ||
| BreathScan | Everglades Direct | Sunrise, FL USA | ||
| BreathScan | American Bio Medica Corporation | Kinderhook, NY USA | ||
| BreathScan | Xxx Xxxxxx Company | Fuquay-Varina, NC USA | ||
| BreathScan | Capital Medical & Surgical | Tallahassee, FL USA | ||
| BreathScan | Cardinal Health | Waukegan, IL USA | ||
| BreathScan | Xxxxxx Healthcare | Houston, TX USA | ||
| BreathScan | Conney Safety Products | Xxxxxxx, Xx USA | ||
| BreathScan | Farahi Medical Inc. | Toronto, Canada | ||
| BreathScan | Corporate Wellness, Inc. | Stamford, CT USA | ||
| BreathScan | XX Xxxxxx & Associates, Inc | Neenah, Wl USA | ||
| BreathScan Legal Limit US Navy- | US Government GSA | Washington, DC USA |
| 4 |
Xxxxxxx & Xxxxxxx
| Brand Name of Products supplied to Existing Customers |
Name of Existing Customers |
Address of Existing Customers | ||
| “Shipmates Take Care of Shipmates” | Contract | |||
| BreathScan Legal Limit US Air Force - “Protect Your Wingman” | US Government GSA Contract | Washington, DC USA | ||
| BreathScan Legal Limit USMC - “Marines Save Lives” | US Government GSA Contract | Washington, DC USA | ||
| BreathScan Legal Limit US Army - “Soldiers Saving Lives” | US Government GSA Contract | Washington, DC USA | ||
| BreathScan Legal Limit US SOCOM Quiet Professionals - “Safety Begins With Me” | US Government GSA Contract | Washington, DC USA | ||
| BreathScan Legal Limit USCG Semper Paratus - “Are You Ready to Save a Life?” | US Government GSA Contract | Washington, DC USA | ||
| Breath Scan Legal Limit US Army Medical Command - Don’t drive & drive! | US Government GSA Contract | Washington, DC USA | ||
| BreathScan Legal Limit Fort Xxxxxxx ASAP “Power of Choice” - Fort Xxxxxxx Soldiers Don’t Drink & Drive | US Government GSA Contract | Washington, DC USA | ||
| BreathScan Legal Limit US Army Combat Readiness Center - “Soldiers Savings Lives” | US Government GSA Contract | Washington, DC USA | ||
| BreathScan Legal Limit US Armed Forces Command Safety Program - “Protecting Freedom’s Guardians | US Government GSA Contract | Washington, DC USA | ||
| BreathScan Legal Limit US Army Corps of Engineers - “Be Safe Share The Ways” | US Government GSA Contract | Washington, DC USA | ||
| BreathScan Legal Limit Marine Corps Logistics Base Albany - “Marines Take Care of Marines” Semper Fidelis | US Government GSA Contract | Washington, DC USA | ||
| BreathScan Legal Limit US Army - Arm yourself against drunk driving | US Government GSA Contract | Washington, DC USA | ||
| BreathScan Legal Limit US Army Safety Center - “Make It Home... Be Safe!” | US Government GSA Contract | Washington, DC USA | ||
| BreathScan POV Safety Program | US Government GSA Contract | Washington, DC USA | ||
| AlcoLimit - Private Label BAC | Silmarc Pharma S.r.l. | Lucca, Italy | ||
| BacTrack - Private Label BAC | KHN Solutions | San Francisco, CA USA | ||
| DUI Alert - Private Label BAC | Martini Promotions | Saint-Laurent, Quebec CANADA | ||
| EZ-Screen - Private Label BAC | MEDTOX Scientific Inc. | St. Xxxx, MN USA | ||
| FamilySafe - Private Label BAC PartySafe - Private Label BAC | Comvate, LLC | Eagle Pass, TX USA | ||
| GM Safe Driving Program - “Friends Don’t Let Friends Drive Drunk” | General Motors Co. | New York, NY USA | ||
| RediTest - - Private Label BAC | Redwood Biotech | Santa Rosa, CA USA | ||
| TESTorARREST - Private Label BAC | CTAS, Inc. | Liberty Twp., OH USA |
| 5 |
Xxxxxxx & Xxxxxxx
| Brand Name of Products supplied to Existing Customers |
Name of Existing Customers |
Address of Existing Customers | ||
| VIVO | LifeVantage | Sandy, UT USA | ||
| VIVO | Xxxxxxxx | Xxxxxxxx, AZ USA | ||
| VIVO | Summa Health | Portland, OR USA | ||
| Metron | Summa Health | Portland, OR USA | ||
| Metron | Isagenix | Chandler, AZ USA |
| 6 |
