Exhibit 3.3
LICENSE AGREEMENT
This License Agreement, dated as of the 27th day of December, 2002, is entered
into by and between CEO of Penn Biotech Inc. (Hereinafter referred to as
"Executor") and the president of Korea Research Institute of Bioscience and
Biotechnology (hereinafter referred to as "Researcher").
WHEREAS, the Executor wishes to license the "Know-How with regard to the Mass
Production of Artificial Seed Potatoes (hereinafter referred to as the
"Technology") developed by researcher.
Article 1 (The Definition of Technology)
The Technology mentioned in this Agreement shall mean "Know-How with regard to
the Mass Production of Artificial Seed Potatoes," including the Patent in
subparagraph 2).
The Patent in this Agreement shall mean "Mass Production of Artificial Seed
Potatoes." (Application number: 1989-003009, registered number: 51832 (Korea))
Article 2 (Execution Right)
Researcher and Executor agree that, subject to the provisions of the Agreement,
Researcher hereby grants the Executor an exclusive Execution Right with regard
to the Technology (including patent rights when patents with regard to this
Technology are granted).
Execution Right in subparagraph 1) shall mean the right to produce and sell the
products by using the Technology.
Executor shall not offer or transfer the Execution Right to a third party
without prior written consent of Researcher.
Researcher shall assume that Executor surrenders Execution Right for those areas
that Executor did not apply the Technology to.
Article 3 (Territory)
Territory covered in this Agreement includes Korea, China, and Canada. In case
that the Executor intends to execute the Technology in other than territory set
forth herein, Executor shall enter into a separate agreement with Researcher
through negotiation.
Article 4 (Term)
1) (Term of the Agreement)
This Agreement shall become effective upon signing and shall continue in full
force and effect until the expiry date of patents and shall thereafter be
extended, provided that a notice of intention to extend is given in writing by
one party to the other.
2) (Commencement of Production)
Executor shall commence the production by using the Technology within one year
from the date of this agreement. Executor shall inform in writing Researcher of
the commenced date of production. However, the commencement date of production
may be postponed with prior written consent of Researcher.
Article 5 (Fees)
Executor shall pay the following amount as a license fee to Researcher. Even in
case of partial surrender of the Execution Right as set forth in subsection 4
of Article 2, this article shall continue to have its effectiveness.
1) (Prepaid License Fee)
Executor agrees to pay 30,000,000 Won in total to Researcher as following:
Payment of 10,000,000 won shall be made within 10 days from signing of this
Agreement
Payment of 10,000,000 won shall be made within 6 months from signing of this
Agreement
Payment of 10,000,000 won shall be made within 12 months from signing of this
Agreement
2) (Current License Fee)
Executor shall pay Current License Fee to Researcher, pursuant to Article 6,
amounting to 1% of net sales annually starting from commencement of sales of
products to termination of this Agreement. Net sales shall be computed as total
sales minus discounts, returns, indirect taxes in connection to sales,
insurance, freight expenses, sales commission, and adverting expenses.
Article 6 (Computation of License Fee)
Executor shall pay Current License Fee set forth in subsection 2 of Article 5 to
Researcher as follows:
1) (Accounting Period)
Computation of License fee shall cover the period starting from January 1 to
December 31 annually and License fee shall be paid to Researcher until March 31
in the following year.
2) (Submission of information)
Executor shall submit to Researcher, within 3 months from the fiscal year end, a
schedule for computation of Current License Fee for the previous year and a
written report detailing order price, sale price, quantity and type of the
product.
3) (Request of Information)
In case that Researcher requests evidences to verify the information set forth
in subsection 2) of this Article, Executor shall submit to Researcher, within
30days from the request, the evidence with certification from a public
accounting firm.
4) (Inspection of Books and Records)
Research may inspect accounting books and records of Executor, at his own
expense, in connection to the computation of Current License Fees.
Article 7 (Transfer of Technology and Training)
1) (Transfer of Technology and Training)
Researcher is obligated to transfer the Technology set forth in Article 1 and to
train Executor to the extent that he is able to fully utilize the Technology
within the contracted period. Upon the Executor's request, Researcher shall
cooperate with Executor on the matters regarding production of Micro-tuber,
supply of culture medium, etc.
2) (Travel abroad)
Researcher may, after negotiation, cooperate with Executor through travel abroad
at Executor's expense for the transfer of Technology and training.
3) Executor will be responsible for costs of Micro-tuber production and supply
of culture medium by Executor's request.
Article 8 (Improvement of Technology)
1) (Improvement of Technology)
In case that Executor, his management or his employees intend to improve,
expand, replace, or reinvent the Technology ("Improved Technology") or intend to
acquire industrial right, basis of which is the Improved Technology, Executor
shall pursue mutual negotiation with Researcher after prior notice is given.
Acquired industrial rights shall be owned by both parties.
2) (Execution of Improved Technology)
Executor shall have priority in executing rights derived from Improved
Technology and the terms of execution shall be determined by written agreement.
3) (Patent Fee)
Executor shall cooperate in document filings and procedures in order to apply,
register, and maintain the registration of industrial rights developed after the
signed date of this Agreement and shall bear entire costs associated with these
procedures.
Article 9 (Good Faith)
In order to achieve the purpose of this Agreement, Researcher shall cooperate
with Executor in good faith and Executor shall perform this Agreement in good
faith.
Article 10 (Confidentiality)
Executor shall caution that the Technology will remain confidential and may not
be disclosed to other parties. This duty includes duty to ensure that Executor's
management, employees and successors will not breach this Article. In addition,
this Article will remain effective even after the cancellation of this
Agreement.
Article 11 (Modification)
This Agreement may be modified only by a written agreement signed by Executor
and Researcher. Yet, Researcher reserve the right to permit Execution Right of
Technology to a third party when determined that Executor's production capacity
does not satisfy the demand for products or he is not technically capable of
materializing Technology and improving incapability.
Article 12 (Certain Circumstances)
In the performance of this Agreement by any one party, the party assumes no
responsibility for any damage or loss caused by any occurrence beyond his
control or defects other than negligence, mistake or willfulness.
Article 13 (Cancellation)
Researcher reserve the right to cancel this Agreement with 20 days written
notice to Executor in the following events. Even after cancellation, Researcher
retains the payments made by Executor, including notes payable received and
Executor shall return all the document regarding Technology and surrender all
the rights given by this Agreement.
Production has not commenced until the Commencement Date of Production or even
prior to the Commencement Date of Production set forth in Article 4, it is
determined by Researcher that Executor has given up production.
Even after the Commencement Date of Production set forth in Article 4, it is
determined that Executor is not able to continue production
Executor does not pay license fees set forth in Article 5 without just cause.
Executor breaches the duty under this Agreement.
Upon termination or cancellation of this Agreement, Executor may not allow
himself or other third party to execute Technology or produce the products
covered in this Agreement.
Article 14 (Damage)
Researcher or Executor shall compensate for damages caused by breach of this
Agreement.
Article 15 (Use of Title)
Executor shall not use original or reproduced copy of the entirety or any
portion of information acquired regarding this Agreement and of reports or
documents, which Researcher furnished to Executor for advertising, promotional,
or marketing purposes or as evidence for litigation. In addition, Executor shall
not imply or refer to Researcher for the aforementioned purposes.
Article 16 (Changes of Facts)
Executor shall promptly report any changes made to relevant facts such as
address of his corporation after signing the Agreement. Researcher shall be
exempted from any responsibility for mistakes arising from Executor's failing to
do so.
Article 17 (Resolution of Disagreement)
In case of dispute or disagreement with regard to this Agreement or performance
of each party, Researcher and Executor shall make an effort to resolve through
discussion and negotiation.
Article 18 (Effectiveness)
This Agreement shall be effective from the singed date of the Agreement by both
parties.
Article 19 (Interpretation)
For the items not specified in this Agreement or for the items which one party
objects to the interpretation of the other, both parties will determine the
meaning of those items through agreement reached by both parties.
Two copies of this Agreement will be printed and signed by both parties, each of
which shall keep a copy.
December 27, 2002
Executor Researcher
/s/ Jai Xxx Xxx /s/ Kyu Xxxx Xxxx /s/
----------------------- -------------------------
Xxx Xxx Xxx Xxx Xxxx Xxxx
Penn Biotech Inc. Korea Research Institute of Bioscience and
16F. 000 Xxxxxxxxx Xxxxxx, Xxxxxxxxxxxxx
Xxxxxxxxx, XX., Xxxxxx 00 Xxxx-xxxx Xxxxxx-xx, Xxxxxx-xx, Xxxxx
