Exhibit 10.57
LICENSE AND SUPPLY AGREEMENT
This License and Supply Agreement (the "Agreement") is entered into as of
November 12,2002, by and between Shaklee Corporation, a Delaware corporation,
with its principal place of business at 0000 Xxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxx
00000 ("Shaklee") and Senetek PLC, a company formed and existing under the laws
of the United Kingdom, with its principal place of business at 000 Xxxxxxx Xxxx,
Xxxx, Xxxxxxxxxx 00000 ("Senetek").
RECITALS
Whereas, Senetek has patents covering the use of kinetin compound in skin care
and cosmetic products and is the owner of related technology; and
Whereas, Senetek is the owner of the formula and technology for a product known
as Eye Gel (Product #42-440); and
Whereas, Shaklee wishes to be granted the right to incorporate kinetin compound
in certain of its skin care products and to have Senetek supply kinetin compound
for such purpose; and
Whereas, in addition to formulating kinetin-based products into Shaklee
formulations, Shaklee wishes to license Senetek's formula for Eye Gel and to
have Senetek manufacture this Product for Shaklee;
Now, therefore, in consideration of the mutual promises, covenants and
conditions set forth in this Agreement, Shaklee and Senetek agree as follows:
1. DEFINITIONS.
a. Affiliate. The term "Affiliate" shall mean, with respect to any
person or entity, any person or entity controlling, controlled
by, or under common control of or with such person or entity.
Control shall mean the ownership or control, directly or
indirectly of fifty percent (50%) or more of the voting stock of
the company or the ability to control, through whatever means,
the governing body of such entity.
b. Authorized Channel. The term "Authorized Channel" means the
multi-level marketing channels, catalog sales, and the Internet.
c. Kinetin. The term "kinetin" shall mean the cytokinin compound
described by the international identifier CAS #525-79-1.
d. Cost. The term "Cost" means Senetek's cost of supplying kinetin
compound and transferring the kinetin technology to Shaklee,
including Senetek's cost of direct labor of employees while
directly employed in the supplying of kinetin compound and
transfer of kinetin technology; direct materials and components,
calculated direct energy, utilities and other charges incurred
directly in the manufacture and supply of kinetin and transfer of
kinetin technology.
e. Eye Gel. The term "Eye Gel" means Senetek Product #42-440.
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f. Products. The term "Products" shall mean those Products
manufactured for or by Shaklee and/or sold by Shaklee to which
kinetin will be added per the conditions of this Agreement. This
Agreement explicitly includes the following Products;
Enfuselle Time Repair AM SPF 15 (Shaklee Product)
Enfuselle C + E Repair PM (Shaklee Product)
g. Future Products. The term "Future Products" shall mean any
additional kinetin-based products which are jointly envisioned by
Shaklee and Senetek and which may be added to this Agreement via
an Addendum for each new product on a case-by-case basis.
h. Finished Products. The term "Finished Products" shall mean
Shaklee Products manufactured to include the compound, kinetin.
i. Patent. The term "Patent" shall mean the Senetek patents (set
forth in Schedule A) relating to the proprietary kinetin-based
compositions and related technology sold by Senetek under the
U.S. brand name, Kinetin.
j. Technology. The term "Technology" means all valuable data and
information, including without limitation the formula,
specifications, clinical study data, and safety information,
which are necessary or useful for the manufacture of the Finished
Products.
k. Territory. The term "Territory" means all countries of the world.
2. TERM OF AGREEMENT.
The term of this Agreement shall be five (5) years from the date set forth
above, unless it is terminated earlier by either Party for default or other
event giving rise to a right of termination as described in Section 13, below.
3. GRANT OF LICENSE.
a. Senetek hereby grants to Shaklee a nonexclusive license under the
Patents held by Senetek to incorporate kinetin compound in the
range of [***] as an ingredient in the Finished Products, and a
nonexclusive license to use and sell the Finished Products within
the Authorized Channel in the Territory. Senetek also grants to
Shaklee an exclusive license to the Eye Gel (Senetek product
#42-440) within the Authorized Channel in the Territory.
b. Transfer of Technology. Senetek shall furnish Shaklee with one
copy of all Technology, including but not limited to know how,
[***], clinical testing data, process sheets, raw material and
process specifications, formulas, manuals, and other writings and
any software with respect to the Eye Gel and incorporation of
kinetin in the Products, which may reasonably be required by
Shaklee to manufacture, package, and commercialize the Finished
Products and Eye Gel.
c. Patent Enforceability. In consideration of the benefits of this
Section 3, Shaklee, for itself and its Affiliates, successors and
permitted assigns and sub- licensees, irrevocably acknowledges,
admits and concedes that (i) all rights, title and interest in
the Patent is owned by Senetek and its Affiliates, (ii) all
claims of the Patent as well as all claims that are narrower in
scope than the claims of the Patent are valid and enforceable,
and (iii) all claims of any patent that may issue from any
application whose subject matter in whole or in part is entitled
to the benefit
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of the filing date(s) of the Patent (including, without
limitation, continuations, continuations-in-part, divisional
patents, reexaminations, renewals, extensions, reissues, and
foreign counterparts) that are equal to or narrower in scope than
the claims of the Patent are valid and enforceable. Shaklee, for
itself and its Affiliates, successors and permitted assigns and
sub-licensees, does also forever relinquish and waive all rights
to dispute said ownership, validity and enforceability in any
proceeding of any nature, covenants that it and they will not
assert, either affirmatively or defensively, in any proceeding of
any nature, any matter inconsistent with said ownership, validity
and enforceability, agrees and acknowledges that the foregoing
shall act as a complete defense and bar to any proceeding of any
nature challenging such ownership, validity and enforceability or
any of them, and consents to the entry of temporary and permanent
injunctions to bar any breach or threatened breach of any of the
foregoing, without the filing on behalf of Senetek of any bond or
other security.
d. Promotion of the Products. Shaklee agrees that in marketing and
selling Finished Products it shall not advertise the
concentration of kinetin in the Product(s) nor will it make any
comparative claims of product benefit to those kinetin-containing
products of Senetek or other Senetek licensees, the current list
of licensees being identified in Exhibit B, hereto attached. In
addition, with regard to statements of product benefit and/or
safety that relate to the kinetin ingredient, Shaklee will submit
to Senetek the text of such statements for Senetek prior
approval, and such approval by Senetek will not be unreasonably
withheld or delayed. Shaklee may include in packaging, labeling
and/or promotional materials for the Finished Products and/or Eye
Gel that they contain kinetin and may also include the following
or a similar statement presented in a manner consistent with
industry practice: "Manufactured and sold under license from
Senetek". Shaklee may further include the Senetek patent numbers
relevant to the kinetin technology as described in this
Agreement.
e. Other Rights. It is expressly understood that this Agreement
grants no rights to Shaklee with respect to any intellectual
property or confidential information of Senetek except those
express rights set forth in Section 3.
4. SUPPLY OF THE KINETIN.
a. Senetek covenants that the kinetin compound supplied to Shaklee
pursuant hereto shall be manufactured in accordance with all
relevant legal and regulatory requirements, that the manufacturer
of such compound shall conduct all appropriate quality control
and related testing to insure that the compound is fit for use in
human skin care products. Senetek shall provide to Shaklee upon
request and at no cost to Shaklee, with respect to each
manufacturing batch of kinetin, proof of ingredients used in the
manufacture of the kinetin with a certificate of analysis for
such compound. Upon reasonable notice, Senetek shall permit
representatives of Shaklee to observe all quality control testing
and inspect all quality control documentation related to the
kinetin supplied by Senetek to Shaklee. Senetek further covenants
that such kinetin compound meets the current Senetek
specifications [***].
b. Skin permeation testing for each new kinetin-based Product will
be conducted under the supervision and with the established
methods of Senetek (to ensure that the kinetin active material is
properly delivered to the skin). Shaklee will pay for the skin
permeation testing as it applies to the Shaklee formulations
(i.e., Enfuselle Time Repair AM SPF 15 and Enfuselle C+E Repair
PM), and Senetek will pay for skin permeation testing as it
applies to the Eye Gel.
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c. Senetek will supply the kinetin compound to Shaklee in accordance
with Shaklee Purchase Orders, which shall set forth the quantity
and delivery terms, within ninety days of receipt of Shaklee's
Purchase Order. Senetek shall ensure that the kinetin is properly
packed and marked for shipping and routed in accordance with
Shaklee's Purchase Order. Shipping terms shall be F.O.B.
Senetek's shipping dock, with freight paid by Shaklee collect. In
the event of any conflict between the terms of a Shaklee Purchase
Order and this Agreement, the terms of this Agreement shall
govern, unless otherwise expressly agreed to in writing and
signed by both parties.
d. If the kinetin or any portion thereof delivered by Senetek to
Shaklee is defective in any respect at point of delivery to
Shaklee's carrier, Shaklee may retain all or any portion of the
kinetin delivered and return the balance of the defective kinetin
to Senetek at Senetek's sole expense. Shaklee may require, at its
option, that Senetek replace any kinetin that Shaklee is entitled
to reject or grant a refund or credit to Shaklee in lieu thereof.
Shaklee shall provide notice of rejection of defective kinetin to
Senetek within 90 days of receipt of the kinetin. Acceptance of
the kinetin shall be subject to revocation upon later discovery
of any latent defect in the kinetin at the point of delivery to
Shaklee's carrier. In the event of a dispute as to whether the
kinetin is defective, samples of the production lot(s) in dispute
shall be sent to a testing laboratory mutually agreed to by
Senetek and Shaklee, whose findings shall be binding on the
Parties. The cost of such testing shall be borne by the Party
whose position is not upheld by the testing laboratory. The final
decision whether to release a production lot of Finished Product
shall remain with Shaklee. In the case that Senetek provides bulk
Eye Gel product to Shaklee, Shaklee will prepare the final
packaging and will decide whether to release a production lot of
the final Eye Gel finished product. In the case whereby Senetek
manufactures the Eye Gel complete with final packaging, the
decision to release production lots of Eye Gel will remain with
Senetek (based on mutually agreed upon specifications for the Eye
Gel).
5. MANUFACTURING OF EYE GEL BY SENETEK.
Senetek will provide manufactured Eye Gel containing kinetin to Shaklee for the
price of [***] per unit based on a lot size of [***] units; these units will be
bulk packed and either shipped to Shaklee for final packaging, or, if requested
by Shaklee, placed into final packaging at Senetek's manufacturer (the cost of
such final packaging will be borne by Shaklee). The manufacturing costs detailed
in this Section 5 are in addition to the Royalty payments indicated in
Section 8.
6. COMPLIANCE WITH LAWS.
Shaklee and Senetek shall comply with all laws, regulations, ordinances, orders,
injunctions, decrees and requirements applicable to the manufacturing,
packaging, storage, shipment and export of all products manufactured pursuant to
the license granted herein, and to its marketing and sale of such products.
Without limiting the foregoing, Shaklee shall manufacture the Finished Products
and Senetek shall manufacture the Eye Gel in full compliance with all applicable
good manufacturing practices requirements for the Territory, shall conduct
appropriate stability testing of such products, shall maintain and implement
appropriate quality control and quality assurance procedures for all raw
materials and components, whether produced internally or supplied by vendors,
and all bulks, work in process and finished goods, shall package, label and
advertise such products marketed and sold by it in accordance with all
applicable legal requirements and in a manner not infringing or violating any
intellectual property or trade rights of third persons, and obtain and maintain
all marketing approvals, registrations or other permits necessary for the lawful
manufacture, packaging, storage, shipment and export, and for its marketing and
sale of such products, in the Authorized Channel within the Territory.
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7. RECALLS.
In the event any Product(s) manufactured and/or sold by Shaklee pursuant to this
Agreement must be recalled from distribution by reason of failure to meet any
requirements of law or otherwise, Shaklee shall have the sole responsibility to
conduct the activities necessary for such a recall, with the reasonable
assistance of Senetek to the extent necessary and requested. The costs of such
recall shall be borne by Senetek if arising from the supply of defective Eye Gel
and otherwise by Shaklee.
8. ROYALTY AND PAYMENT.
x. Xxxxxxx shall pay to Senetek a royalty for each unit of the
Finished Products and/or the Eye Gel sold by Shaklee, as follows:
U.S. [***] per unit for each unit sold by Shaklee in any
calendar year up to [***] units;
U.S. [***] per unit for each unit sold by Shaklee in any
calendar year in excess of [***] up to and including
[***]; and
U.S. [***] per unit for each unit sold by Shaklee in any
calendar year in excess of [***] units.
b. Senetek further agrees in consideration of work conducted by
Shaklee on the formulation of kinetin-based formulations, to
provide a one-time credit to Shaklee of [***] per unit for the
first [***] units sold by Shaklee under this Agreement.
c. Senetek shall supply Shaklee with Kinetin compound at Senetek's
Cost, which is currently at [***] per kilogram.
d. Senetek shall transfer the kinetin Technology necessary for
Shaklee to manufacture and/or commercialize the Finished Products
at Senetek's Cost.
e. Senetek shall invoice Shaklee for the Cost of the kinetin
compound supplied, and Shaklee shall pay such invoices within
thirty (30) days of receipt.
f. Within thirty (30) days after the end of each calendar quarter,
Shaklee shall send to Senetek a written accounting reporting the
number of units of Finished Products and Eye Gel sold during such
calendar quarter and, at the same time, shall pay the royalty set
forth in subsection (a) above. A handling charge of 1.5% per
month shall be assessed on any payments more than thirty (30)
days past due.
9. RECORDS/INFRINGEMENT/RECOVERY.
a. Books and Records. Shaklee shall maintain books and records in
accordance with generally accepted accounting and good
manufacturing practices standards reflecting all amounts included
in its calculation of royalty payable pursuant to Section 8, and
shall provide Senetek reasonable access, with at least (10) days
prior notice and at times not unreasonably disruptive of
Shaklee's operations, to conduct audits thereof. No more than one
such audit shall be conducted during any twelve (12) month period
unless an audit documents a
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deficiency in royalties due of more than ten (10) percent, in
which event audits may be conducted semi-annually thereafter
until such audits fail to document such a deficiency. Shaklee
shall pay a handling charge of one-and-one-half (1-1/2) percent
per month on the amount of any deficiency in royalties paid
determined as a result of any such audit. The costs of any such
audit shall be borne by Senetek unless such audit documents a
deficiency of more than ten (10) percent, in which case such
costs shall be reimbursed by Shaklee.
b. Notification of Infringement. During the Term, each party shall
promptly advise the other in writing of any infringement,
imitation or act by third parties inconsistent with the ownership
of and rights of Senetek to the Patent or any act of unfair
competition by third parties with respect to the Finished
Products or the Eye Gel (any of the foregoing shall be referred
to as an "infringement") wherever and whenever such infringement
or act shall come to the attention of such party. If such
infringement occurs within the Territory, Senetek shall promptly
take such commercially reasonable action as is required to
restrain such infringement or otherwise enforce its rights and
Shaklee shall cooperate fully with the Senetek in such action
and, if so requested, shall join with Senetek as a party to any
appropriate legal proceedings for such purpose. Senetek shall
bear all expenses in connection with the foregoing. In the event
that within a reasonable time after Senetek becomes aware of such
infringement within the Territory, Senetek fails to take
appropriate and diligent action with respect to such
infringement, Shaklee shall have the right, to the extent
permitted by law, to institute an action for infringement at its
own expense, and in its own name, or in the name of any of its
Affiliates and the right to enforce and collect any judgment
thereon, subject to the following paragraph.
c. Recovery. Any recovery by either party as a result of any claim,
demand, litigation or other action contemplated by clause b.
above or any settlement thereof shall first be used to reimburse
each party for the reasonable costs of the action borne by such
party (or, if the recovery is less than the aggregate costs of
such action, shall be distributed between the parties in
proportion to the costs of the action borne by each of the
parties), with the remaining amount, if any, to be paid to
Senetek.
10. INSURANCE/RISK OF LOSS/INDEMNIFICATION.
a. Insurance. During the term of this Agreement, Senetek and Shaklee
shall each maintain at their own cost and expense, commercial
general liability insurance including coverage for
products/completed operations with annual limits of liability in
an amount not less than [***] per occurrence, [***] general
aggregate; and [***] products/completed operations aggregate, and
Shaklee shall maintain at its own cost and expense insurance of
not less than [***] per occurrence, [***] aggregate, covering the
selling price value of Finished Products and the Eye Gel in its
possession or control, in each case with an insurance company
having a current A.M. Best rating of B+ or better. The insurance
of each Party shall name the other Party as an additional insured
under the Broad Form Vendor Endorsement. The insurance shall be
primary to and non-contributory with any insurance maintained by
the other Party.
b. Interruption. During the term of this Agreement Senetek shall
notify Shaklee in writing within 24 hours, or as soon as
practicable, of a major business interruption and/or a natural
catastrophe that may prevent or delay the delivery of kinetin
substance or Eye Gel to Shaklee, and Shaklee shall notify Senetek
in writing within 24 hours, or as soon as practicable, of a major
business interruption and/or a natural catastrophe that may
prevent or delay the receipt of kinetin compound or Eye Gel from
Senetek.
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c. Loss. All risk of loss or damage to the kinetin compound from any
cause whatsoever shall be borne by Senetek until delivery of the
kinetin compound to, and receipt of the shipment by, Shaklee's
carrier.
d. Indemnification by Senetek. Senetek shall indemnify Shaklee,
defend and hold Shaklee and Shaklee's officers, directors,
employees and agents harmless from any and all liability, damage,
loss, costs or expenses, including reasonable attorneys' fees,
resulting from claims made by any person in connection with the
use of the kinetin compound, Eye Gel, and/or Finished Products to
the extent such claims arise out of the negligence, willful
misconduct of, or breach of any of the terms of this Agreement
by, of Senetek.
e. Indemnification by Shaklee. Shaklee shall indemnify Senetek,
defend and hold Senetek's and Senetek's officers, directors,
employees and agents harmless from any and all liability, damage,
loss, costs or expenses, including reasonable attorneys' fees,
resulting from claims made by any person in connection with the
use of the kinetin compound, Eye Gel, and/or the Finished
Products to the extent such claims arise out of the negligence,
willful misconduct of, or breach of any of the terms of this
Agreement by, of Shaklee.
f. Consequential Damages. Except for claims that include
consequential damages paid to persons that are not Affiliates of
an indemnified party, neither Party shall be liable to the other
for consequential damages, lost profits, injury to reputation, or
similar claims. Except for claims by third parties, and except as
provided in Section 7 above relating to Recalls, under no
circumstances shall Senetek or its Affiliates have any liability
arising from this Agreement in excess of the highest aggregate
amount paid to Senetek by Shaklee over the course of any two
contract year periods.
11. WARRANTY.
Senetek warrants that the kinetin compound and Eye Gel supplied to Shaklee
pursuant to this Agreement, at the time it is delivered to and accepted by
Shaklee's carrier, will (i) be free from defects in manufacturing and materials;
(ii) shall not be adulterated under the meaning of the Federal Food, Drug, and
Cosmetic Act; (iii) shall be manufactured and packaged in a manner which
complies with applicable Food and Drug Administration regulations; and (iv)
shall be fit for use in human skin care products. Senetek further warrants that
the Eye Gel product has been clinically tested for safety and is fit for use as
a human skin care product. In addition, Shaklee warrants that the Finished
Products and the Eye Gel, at the time that they are sold by Shaklee or its
Affiliates, will, (i) conform to the warranties set forth in the preceding
sentence and (ii) shall be manufactured and packaged in a manner which complies
with the all regulatory requirements applicable in each respective country of
sale.
12. CONFIDENTIALITY.
Senetek and Shaklee have entered into a Mutual Nondisclosure Agreement ("MNDA ")
effective July 17, 2002, incorporated herein by reference. The provisions of
such MNDA shall apply to this Agreement and shall remain in full force and
effect during the Term of this Agreement and shall survive the expiration or
termination of this Agreement for a period of five (5) years after such
expiration or termination regardless of any expiration or termination provision
of such MNDA.
13. TERMINATION.
a. This Agreement may be terminated immediately by either Party in
the case of a material
breach by the other Party of anyone or more of the terms of this
Agreement which is not remedied within thirty (30) days after
receipt by the breaching party of written notice of the breach as
sent by the terminating Party, or if such breach cannot
reasonably be cured within such thirty (30) day period, if the
breaching party has failed to commence such cure within such
period and diligently prosecute such cure to completion within a
reasonable time thereafter;
b. This Agreement may also be terminated immediately by either Party
if the other Party files a petition in bankruptcy or a petition
in bankruptcy is filed against the other Party which is not
vacated within sixty (60) days or the other Party becomes
insolvent or makes an assignment for the benefit of creditors or
any arrangement pursuant to any bankruptcy law;
c. This Agreement may be terminated by Shaklee for any or no reason,
with or without cause, upon giving at least ninety (90) days
prior written notice. Notwithstanding Shaklee's termination of
the Agreement, it shall be responsible for payment and take
delivery of any kinetin compound under a Shaklee Purchase Order
in effect as of the date of notice of termination. Shaklee shall
not be responsible for any other charges or damages in the event
of termination pursuant to this paragraph.
14. FORCE MAJEURE.
Neither Party shall be liable for delay or failure in the performance of any of
its obligations under this Agreement if and to the extent such delay or failure
is due to circumstances beyond the reasonable control of such Party, including
but not limited to fires, floods, explosions, accidents, acts of God, war, riot,
strike, lockout or other concerted acts of workers, acts of government and
shortages of materials; provided, however, that the party claiming that "force
majeure" has affected its performance shall give notice to the other party
within ten (10) days of becoming aware of the occurrence of force majeure,
giving full particulars of the cause or event and the date of first occurrence
thereof, and provided, further, that no force majeure event shall affect
Shaklee's obligation to make timely payment of the cost of kinetin compound
supplied by Senetek or of the royalties due on sales of Finished Products. The
Party claiming force majeure shall use its best efforts to eliminate or prevent
the cause so as to continue performing its obligations under this Agreement.
15. NOTICES.
Any notice required or permitted to be given under this Agreement shall be in
writing and shall be given by sending such notice properly addressed to the
other Party's address shown below by prepaid registered or certified mail,
return receipt requested, or by overnight delivery service by the U.S. Post
Office or private carrier. All such notices shall be deemed given when received:
If to Shaklee: Shaklee Corporation
0000 Xxxxxx Xxx
Xxxxxxx, XX 00000
Attn: Xxx Xxxxxx, Vice President, Product Development
With a copy to:
Shaklee Corporation
0000 Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxxx X. Fine, Esq., General Counsel
If to Senetek: Senetek PLC
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000 Xxxxxxx Xxxx Xxxx, XX 00000
Attn: [***]
16. INVENTIONS AND DISCOVERIES.
If during the Term of and/or as a direct result of this Agreement, either
Shaklee employees or agents or Senetek employees or agents conceive and/or
reduce to practice a discovery or invention, ownership of such discovery or
inventions shall be apportioned as follows:
a. If it relates to Senetek's proprietary materials or technology,
and does not materially relate to Shaklee's proprietary materials
or technology, it will be owned by Senetek.
b. If it relates to Shaklee's proprietary materials or technology,
and does not materially relate to Senetek's proprietary materials
or technology, it will be owned by Shaklee.
c. If it materially relates to both Senetek's proprietary materials
or technology and to Shaklee's proprietary materials or
technology, the parties agree to negotiate in good faith for the
ownership, rights, use, reduction to practice and
commercialization of the new technology, the details of which
will contained in a development agreement between the parties.
Both parties further agree that prior to a joint agreement
covering such new technology, neither party will pursue the
patenting, development or commercialization of such new
technology without the express written permission of the other
party.
Each party agrees to assign to the other all rights to all such inventions or
discoveries, consistent with the above-identified ownership rights, in the
Territory. Should Senetek or Shaklee decide to apply for patent protection on
any of such discoveries or inventions relating to materials, composition or
methods of use (as described and allocated immediately above), each party agrees
to assist the other, at the other's reasonable expense, to obtain patent
protection and to assign the patents to the other, including executing any
documents required. In the case of solely-owned inventions or discoveries, the
party that owns such inventions or discoveries shall, at its own expense, have
the right to apply for such patent protection and to prosecute applications for
patents through attorneys and agents of its own choosing.
17. ADDITIONAL PROVISIONS.
a. No Assignment. Neither Party may assign this Agreement without
the prior written consent of the other Party hereto, which
consent shall not be unreasonably withheld. Irrespective of the
foregoing, either Party may assign this Agreement to an Affiliate
in the event of a non-bankruptcy related internal reorganization
of the corporate structure without the consent of the other
Party.
b. Enforceability. The Parties hereto agree that this Agreement
shall be legally binding upon them and their respective legal
representatives, successors and assigns.
c. Entire Agreement. Except as provided in paragraph 12 of this
Agreement, this Agreement contains the entire understanding of
the Parties relating to the subject matter hereof, and supersedes
all prior discussions and agreements between them, including but
not limited to a Master Supply Agreement of November 6, 2001
between Technica Consumer Health, a division of Shaklee
Corporation, and Senetek, which is hereby cancelled. This
Agreement may be modified only by an instrument in writing signed
by both Parties.
d. Governing Law. This Agreement shall be governed by and
interpreted in accordance with the
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laws of the State of California.
e. Waiver. A waiver of any term or condition of this Agreement in
anyone instance shall not be deemed to continue to be a waiver of
such term or condition for any similar instance in the future or
of any subsequent breach hereof.
f. Announcements. The parties will issue an agreed upon press
release upon the execution of this Agreement. Except for such
release and except as may otherwise be required by law or the
listing rules of any exchange on which either party's securities
may be listed or quoted, for which the releasing party shall
provide prior notice to the other party and the opportunity to
comment on any required disclosure, neither party will disclose
the terms of this Agreement to any other person; provided that
each party may make such disclosure of the terms of this
Agreement to its employees and agents as is necessary to permit
such party to perform its obligations under this Agreement;
provided that any such employee or agent agrees to maintain the
confidentiality of this Agreement; and provided that at either
party may make such disclosures of the terms of this Agreement as
are necessary to enter into license and other agreements that do
not conflict with the terms of this Agreement. Shaklee
acknowledges that this Agreement may be deemed to be a "material
contract" as that term is defined by Item 601(b)(l0) of
Regulation S-K, and that Senetek may therefore be required to
file such document as an exhibit to reports or registration
statements filed under the United States Securities Act or
Securities Exchange Act, provided that Senetek shall redact
commercial terms and file for confidential treatment to the
extent permitted by applicable rules of the United States
Securities and Exchange Commission.
IN WITNESS WHEREOF, the Parties hereto have read and executed this Agreement as
of the day and year first above written.
SENETEK PLC SHAKLEE CORPORATION
By: By:
/s/ J. Xxxxxxx Xxxxxxx /s/ Xxxxx X. Xxxxxx
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J. Xxxxxxx Xxxxxxx Xxxxx X. Xxxxxx
Chief Technology Officer Vice President, R&D
Senetek, PLC Shaklee Corporation
