EXHIBIT 10.01
ALBERTA
RESEARCH [Logo Appears Here] CONTRACT NO. VPLS 11266-2008
COUNCIL
MASTER AGREEMENT FOR TECHNOLOGY DEVELOPMENT
THIS AGREEMENT made as of the 1st day of January, 2007 (hereinafter referred to
as the "Effective Date").
BETWEEN:
ALBERTA RESEARCH COUNCIL INC.,
(hereinafter referred to as "ARC")
- and -
CRAILAR FIBER TECHNOLOGIES INC.,
(hereinafter referred to as "CFT")
WHEREAS ARC and CFT wish to collaborate initially on the development of
technology related to the Crailar Series Fiber (as defined herein) and may wish
to collaborate on the development of other technologies, applications or
products from time to time;
NOW THEREFORE the parties agree as follows:
SECTION 1 -DEFINITIONS AND INTERPRETATION
1.1 In this Agreement, including this Section, the following defined terms have
the meanings indicated:
(a) "Confidential Information" means any and all confidential data or
information disclosed by one party to the other party and identified
by the disclosing party as being confidential, including, but not
limited to, all technical, scientific, financial, business, personal
and other information, all manufacturing, marketing, sales and
distribution data, all scientific and test data, documents, methods,
techniques, formulations, operations, know-how, experience, skill,
trade secrets, computer programs and systems, secret processes,
practices, ideas, inventions, designs, devices, publications, reports,
samples, plans and drawings;
(b) "First Project Agreement" means the Agreement between ARC and CFT in
the form attached as Schedule "A", and executed concurrently with this
Agreement;
(c) "Intellectual Property" means all information, data, artistic and
literary works, concepts, designs, processes, software, methodologies,
techniques, know-how, algorithms and inventions, including, without
limitation, those that could be the subject of patent, copyright,
industrial design, trade secret or other forms of protection;
(d) "CFT Field of Use" means use in connection with xxxx fiber crops as a
raw material;
(e) "New Intellectual Property" means Intellectual Property that may be
made, conceived, created, developed or first reduced to practice
during the conduct of the Project Services;
(f) "Project Agreement" means an agreement between ARC and CFT for the
performance by ARC of Project Services, such agreement to be in the
form of Schedule "A" - Sample Project Agreement or in such other form
as the parties may mutually agree which contains the same or similar
provisions and information as Schedule "B";
(g) "Project Services" means the research and related work set out and
described on a Project Agreement;
(h) "Research Program" means the research program as determined and
approved by the Management Committee from time to time; and
(i) "Crailar Series Fiber Products" means products fabricated utilizing
the Crailar Process.
1.2 The captions and headings in this Agreement are for convenience and
reference only and shall not affect the interpretation of any provision or
its scope or intent.
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1.3 Wherever the singular, masculine or neuter is used in this Agreement, the
same shall be construed as being the plural, feminine or body corporate as
the context requires.
1.4 This Agreement shall be governed and interpreted in accordance with the
laws in force in the Province of Alberta and the parties hereby submit to
the jurisdiction of the Courts of Alberta.
1.5 The following Schedules are incorporated and form part of this Agreement:
Schedule "A" - First Project Agreement
Schedule "B" - Sample Project Agreement
Schedule "C" - Form of Licence Agreement
SECTION 2 - MANAGEMENT COMMITTEE
2.1 The parties shall establish a committee, to be known as the "Management
Committee", to administer this Agreement and to manage the Project
Agreements. The Management Committee shall not have authority to amend or
modify this Agreement.
2.2 The Management Committee shall be comprised of two (2) representatives of
each of ARC and CFT and one Project Chairperson. The Project Chairperson
shall be appointed by ARC. The Project Chairperson shall be responsible for
calling and conducting meetings of the Management Committee, subject to
rules established in accordance with Section 2.4
2.3 The representatives of the parties appointed pursuant to Section 2.2 shall
each be entitled to one vote on all matters to be decided by the Management
Committee, but the Project Chairperson shall not be entitled to vote on any
matters to be determined by the Management Committee. All decisions made by
the Management Committee shall require unanimity of the votes cast by the
representatives of the parties
2.4 The Management Committee shall meet not less than once per year and shall
establish rules governing the location of, calling of, conducting of and
procedure at meetings of the Management Committee, and the resolution of
matters between meetings, whether by telephone or written communication.
SECTION 3 - PROJECTS AND PROJECT AGREEMENTS
3.1 This Agreement shall consist of the main body of this document and all
Project Agreements, which are properly authorized pursuant to this
Agreement. A party authorizes a Project Agreement by signing it. A Project
Agreement is properly authorized when signed by both parties. Subject to
Section 3.2, neither party is under any obligation to authorize any
particular Project Agreement
3.2 ARC and CFT agree to carry out the project for the development of
technology related to the Crailar Series Fiber in accordance with the First
Project Agreement entered into concurrently with this Agreement.
3.3 ARC and CFT shall each use reasonable efforts to identify potential
opportunities, applications, technologies and projects related to the
development of Crailar Series Fiber and related to the manufacture,
marketing, distribution and sale of Crailar Series Fiber Products. Each
party shall keep the other reasonably informed as to its activities to
identify such potential projects, shall promptly advise the other party of
any potential project identified and shall share all information related to
such potential projects. If ARC and CFT agree to pursue a potential project
related to Crailar Series Fiber, ARC and CFT shall negotiate in good faith
on the terms of a Project Agreement applicable to such project. Unless
otherwise agreed by ARC and CFT, CFT shall contribute to the development
costs pursuant to a Project Agreement in accordance with Section 4.
3.4 ARC and CFT shall each use reasonable efforts to identify potential
opportunities, applications, technologies and projects related to the
development of other fibres and related to the manufacture, marketing,
distribution and sale of products based upon such other fibres. Each party
shall keep the other reasonably informed as to its activities to identify
such potential projects, shall promptly advise the other party of any
potential project identified and shall share all information related to
such potential projects. If ARC and CFT agree to pursue a potential project
related to another fiber, ARC and CFT shall negotiate in good faith on the
terms of a Project Agreement applicable to such project. Unless otherwise
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agreed by ARC and CFT, CFT shall contribute to the development costs
pursuant to a Project Agreement in accordance with Section 4.
SECTION 4 - CONTRIBUTIONS
4.1 Each of ARC and CFT shall provide the contributions set out in each Project
Agreement.
4.2 Contributions of each of CFT and ARC may include:
(a) financial contributions;
(b) services of their respective employees;
(c) provision of materials and supplies;
(d) provision of research and laboratory facilities;
(e) provision of equipment;
(f) provision of agricultural test fields; and
(g) provision of data and information.
4.3 Subject to Section 4.4, CFT shall initially pay to ARC the sum of Ten
Thousand ($10,000) on April 1st, 2007 and then subsequently Twenty-Five
Thousand ($25,000) Dollars per calendar quarter, on the first day of each
calendar quarter commencing on July 1st, 2007. Such sums shall be used
exclusively for the purpose of CFT's contributions required pursuant to
Project Agreements. In addition to the cash payments set out above, CFT
shall provide work-in-kind of a value of Twenty-Five Thousand ($25,000)
Dollars per calendar quarter commencing April 1st as part of CFT's
contributions to Project Agreements. CFT's obligations in this Section 4.4
are contingent upon there being in effect from time to time one or more
Project Agreements requiring financial contributions from and services by
CFT in the prescribed amounts.
4.4 ARC shall designate all royalties received pursuant to Licence Agreements
entered into pursuant to Sections 7.4 and 7.5 together with one-half (1/2)
of net revenues earned by ARC pursuant to Section 7.6 to be used to fund
research related to the Research Program (the "Research Fund The amounts
contained in the Research Fund shall be used to off-set the monetary and
work-in-kind contributions required of CFT and ARC pursuant to this Section
4. If the Research Fund has not been expended at the expiry or termination
of this Agreement, ARC shall be entitled to use such funds in anyway ARC
determines.
4.5 CFT shall pay to ARC the fees and expenses set out in each Project
Agreement. If and when applicable, provincial, municipal, sales, use and
federal goods and services tax shall be charged in addition to the amount
set out in a Project Agreement.
4.6 ARC shall invoice CFT in accordance with each Project Agreement. CFT shall
pay all invoices without any deduction or set-off. Unless otherwise
specified at the time of presentation, invoices presented by ARC are
payable within thirty (30) days of receipt by CFT. If CFT fails to pay any
amount under this Agreement, such unpaid amount shall bear interest at a
rate per month equal to one (1%) percent (or 12.6825% per annum) with
interest on overdue interest at the same rate
SECTION 5 - PROJECT PERFORMANCE
5.1 CFT and ARC shall perform the Project Services described in a duly
authorized Project Agreement in a thorough and diligent manner in
accordance with normal professional standards.
5.2 Neither party shall be liable for any delay in performance of the Project
Services due to causes beyond that party's reasonable control.
5.3 Each party shall report to the other party during the term of this
Agreement at the times and in the manner set forth in each Project
Agreement.
5.4 Unless otherwise provided for in a Project Agreement, all materials, assets
and equipment acquired or purchased for the conduct of the Project Services
shall be the property of ARC.
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5.5 Any test samples or other materials supplied by CFT to ARC may, at ARC's
option, be returned by ARC to CFT. CFT shall:
(a) be responsible for all reasonable costs associated with the handling,
transportation and disposal of such materials;
(b) reimburse ARC for any costs reasonably incurred by ARC associated with
the handling, transportation and disposal of such materials; and
(c) indemnify and hold ARC harmless for any and all claims, damages or
actions associated with the handling, transportation and disposal of
such materials except to the extent caused by any breach of this
Agreement, negligence or wilful misconduct by ARC or any person for
whom ARC is legally responsible.
5.6 Unless otherwise provided on a Project Agreement, goods or products which
are to be delivered by ARC to CFT pursuant to the Project Services are of
an experimental nature, and ARC does not warrant the quality, state,
merchantability or fitness for any purpose of any goods and products to be
delivered pursuant to this Agreement. CFT accepts the results of the
Project Services as is, and acknowledges that any use or interpretation of
the information contained is at CFT's own risk.
5.7 ARC shall use reasonable efforts to ensure that the technology used in the
Project Services does not infringe on any other patents or proprietary
rights, but makes no representation and gives no warranty that the
technology used in the Project Services will not infringe on any other
patents or proprietary rights.
SECTION 6 - CONFIDENTIALITY
6.1 Any Confidential Information which is disclosed by one party to the other
party shall be treated as confidential by the receiving party and such
Confidential Information shall not be disclosed by the receiving party
unless consent in writing has been received from the other party. Each
party shall use diligent, commercially reasonable efforts to ensure that
the Confidential Information of the other party is not disclosed by it to
any other person, firm or corporation during the term of this Agreement and
for a period of five (5) years after the date of termination of this
Agreement.
6.2 Nothing herein shall prevent a party from using, disclosing or authorizing
disclosure of information:
(a) with the prior express written consent of the party; or
(b) which comprises part of the New Intellectual Property, if such New
Intellectual Property is owned solely by that party; or
(c) which the receiving party can promptly demonstrate based on written
evidence to have been in its possession prior to that party's receipt
or acquisition from the other party; or
(d) which at the time of receipt or acquisition thereof is or thereafter
becomes a part of the public domain through no act or failure on the
part of either party; or
(e) which is disclosed by a third party without a covenant of
confidentiality, provided such third party is, to the knowledge of the
recipient, under no obligation of confidentiality with respect to the
information; or
(f) the receiving party can promptly demonstrate based on written evidence
to have been independently developed without access to or use of any
Confidential Information; or
(g) which is required to be disclosed by any applicable law. In any
circumstance in which a party is required by law to disclose any
Confidential Information of the other party, it will promptly give
notice of such requirement to the other party and will take all
reasonable steps to limit the disclosure only to such information as
it is required to disclose and will cooperate reasonably with the
other party to maintain the confidentiality of such information.
6.3 Any records required to be maintained by ARC pursuant to this Agreement are
subject to the protection and access provisions of the FREEDOM OF
INFORMATION AND PROTECTION OF PRIVACY ACT (Alberta).
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SECTION 7 - OWNERSHIP OF INTELLECTUAL PROPERTY
7.1 Intellectual Property which was owned by ARC prior to the signing of this
Agreement remains the property of ARC. Nothing in this Agreement shall
operate as a license, permission or grant of any other rights related to
ARC's Intellectual Property.
7.2 Intellectual Property which was owned by CFT prior to the signing of this
Agreement remains the property of CFT. Nothing in this Agreement shall
operate as a license, permission or grant of any other rights related to
CFT's Intellectual Property.
7.3 Unless otherwise provided for in a Project Agreement, all New Intellectual
Property shall be owned by ARC. ARC shall promptly disclose all New
Intellectual Property to CFT
7.4 With respect to all Project Agreements, CFT shall be entitled to an option
for an exclusive, worldwide, royalty-bearing licence to use the New
Intellectual Property developed pursuant to such Project Agreement. If CFT
gives written notice to ARC at any time prior to six (6) months after the
completion of a Project Agreement, exercising the option granted in this
Section 7.4, ARC and CFT shall enter into a licence agreement substantially
in the form attached hereto as Schedule "C", and including the following
terms:
(a) the CFT Field of Use shall be restricted to xxxx fiber crops;
(b) (b) the royalty payable by CFT to ARC shall be three (3%) percent of
Gross Sales for the first Fifty Million ($50,000,000) Dollars of Gross
Sales (calculated on a cumulative basis for Gross Sales under all
licences entered into pursuant to this Section), and one point five
(1.5%) percent of Gross Sales for all Gross Sales in excess of Fifty
Million ($50,000,000) Dollars; and
(c) c) the territory shall be worldwide;
7.5 If CFT wishes to obtain a licence to use any New Intellectual Property
outside of the CFT Field of Use, upon CFT giving written notice to ARC, ARC
and CFT shall enter into good faith negotiations on the terms of a licence
agreement substantially in the form attached hereto as Schedule "C", with
such changes or modifications as may be agreed upon by ARC and CFT.
7.6 If CFT has not exercised its option and entered into a licence pursuant to
Section 7.4 or 7.5 (as applicable), and if ARC proceeds to commercialize
any New Intellectual Property alone or through licence or other agreements
with other persons or if CFT fails to fulfill its commercialization
obligations pursuant to a licence agreement and ARC exercises any rights it
may have to convert the licence to a non-exclusive licence or to terminate
the licence, and ARC subsequently commercializes such New Intellectual
Property, either alone or pursuant to licence or other agreements with
other persons, one-half (1/2) of the net revenue earned by ARC after
deducting all expenses from such commercialization activities, shall form
part of the Research Fund referred to in Section 4.4.
SECTION 8- COMMERCIALIZATION REPORTS
On or before January 31 in each year, CFT shall provide a written report to ARC
summarizing for the prior calendar year the effects and results of the Project
Services. The information to be provided shall be provided in such form that ARC
will not be required to keep the information confidential and shall include:
(a) employment created;
(b) domestic markets and sales;
(c) international markets and sales;
(d) revenue generated;
(e) new investments and research and development;
(f) other matters related to the impact on the economy of Alberta, as
reasonably requested by ARC.
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SECTION 9 - PUBLICITY
9.1 The parties shall not originate publicity, news releases, public statements
or announcements, whether written or oral, relating to the Project
Services, without the prior written consent of the other party, such
consent not to be unreasonably withheld or delayed. Nothing in this Section
9.1 shall restrict CFT, directly or through its affiliates, from publishing
any news release or filing any disclosure statement that is required to
publish or file by any applicable law.
9.2 The parties shall not use each other's name in any advertising material
without the prior written consent of the other party, which consent may be
arbitrarily withheld.
SECTION 10 - HOLD HARMLESS AND INSURANCE
10.1 CFT shall indemnify and hold ARC harmless from any and all claims, damages,
actions and costs (including legal costs on a solicitor-client basis) that
may arise out of or are in any way related to any item made or sold by CFT
which incorporates, or is made through the use of all or any part of the
New Intellectual Property or any goods or products delivered by ARC to CFT
in accordance with the terms of this Agreement
10.2 Subject to 10.3 and 10.4, each party shall assume and be liable for its own
losses, costs, and expenses of any nature whatsoever which it may suffer,
sustain, pay or incur, by reason of any matter or thing arising out of, or
in any way attributable to the Projects Services, except where such losses,
costs, and expenses are the result of any breach of any term hereof by the
other party or the negligence or wilful misconduct of the other party, or
the other party's agents or employees.
10.3 Regardless of any other provision in this Agreement or in any Project
Agreement, neither party shall be liable to the other party for any
consequential, incidental or indirect losses or damages, including, without
limitation, loss of revenue, loss of income or loss of anticipated profits,
which result from or are in anyway attributable to the Project Services,
this Agreement or any Project Agreement.
10.4 Subject to Section 10.1, ARC's entire liability for any loss or damage
suffered by CFT related to this Agreement, any breach thereof or any acts
or omissions of ARC, its employees or agents, shall not exceed the total
amount paid by CFT to ARC pursuant to the relevant Project Agreement.
10.5 CFT shall, at its own expense and without limiting its liabilities herein,
be responsible for insuring its operations in an amount not less than
$2,000,000 inclusive per occurrence, insuring against bodily injury and
property damage including loss of use thereof.
10.6 ARC is a participant in the Alberta Risk Management Fund which has been
established under Section 76 of the FINANCIAL ADMINISTRATION ACT (Alberta).
The Alberta Risk Management Fund provides self-insured coverages for ARC
including general liability, professional liability, products liability and
property damage coverage in the amount of $5,000,000 per occurrence. This
program includes coverage to protect ARC in the event of third party claims
for bodily injury, personal injury and property damage arising out of the
operations of ARC.
10.7 Evidence of the required coverage will be provided by either party upon the
request of the other party.
SECTION 11 - ASSIGNMENT
Neither party shall assign this Agreement in whole or in part without the other
party's prior written consent, such consent not to be unreasonably withheld.
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SECTION 12 - COMPLIANCE WITH APPLICABLE LAWS
The parties shall observe and comply with all applicable laws, ordinances, codes
and regulations of government agencies, including Federal, Provincial, Municipal
and local governing bodies having jurisdiction over the conduct of the Project
Services or any part thereof. All Project Services performed by ARC shall be in
accordance with these laws, ordinances, codes and regulations.
SECTION 13 - TERMINATION
13.1 This Agreement may be terminated at the end of any calendar quarter by
either ARC or CFT given not less than ninety (90) days notice to the other
party, unless there are Project Agreements then in effect, in which case
this Agreement shall expire when there are no longer any Project Agreements
in effect. The termination of this Agreement shall not operate to terminate
any license or option in favour of CFT hereunder.
13.2 A Project Agreement is in effect from the day it is duly authorized by the
parties, subject to any contrary provision contained in the Project
Agreement. A Project Agreement shall cease to be in effect when it is
terminated. The effective date of termination of a Project Agreement shall
be the earliest of:
(a) the date set out in the Project Agreement; or
(b) the date determined by mutual agreement of the parties; or
(c) the date on which the Project Services described in a Project
Agreement have been completed; or
(d) the date on which a party in default, as defined in Section 13.3
hereunder, receives notice from the party not in default terminating
this Agreement.
13.3 If:
(a) a party has breached any of its obligations pursuant to this Agreement
and has failed to remedy such breach within thirty (30) days after
notice in writing from the other party; or
(b) a party becomes bankrupt or insolvent or takes the benefit of any
statute for bankrupt or insolvent debtors or makes any proposal,
assignment or arrangement with its creditors, or any steps are taken
or proceedings commenced by any person for the dissolution, winding up
or other termination of the party's existence, or the liquidation of
its assets; or
(c) a trustee, receiver, receiver-manager or like person is appointed with
respect to the business or assets of a party; or
(d) a party's assets are taken under a Writ of Enforcement, attachment,
distress or similar judicial or extra-judicial procedure;
then that party will be in default and the party not in default may at
its option, give written notice to the other party in default
terminating this Agreement, in which event termination will be
effective on the date notice is deemed to have been received pursuant
to Section 16.
13.4 Notwithstanding anything herein contained to the contrary, the provisions
of Xxxxxxxx 0, 0, 0, 0, 0, 0, 0 , 00 and 13 shall survive the termination
or expiration of this Agreement.
13.5 If this Agreement is terminated in accordance with this Section 13, an
accounting shall be made of the Project Services performed by ARC to the
date of termination, and CFT shall pay to ARC compensation for the Project
Services performed by ARC in accordance with the Project Agreements,
together with compensation for any obligations incurred by ARC to permit
the conduct of all Project Services contemplated by this Agreement, but
such payment shall be without prejudice to any other remedies available to
the parties
13.6 If ARC and CFT have entered into, or during the subsistence of this
Agreement enter into any other agreements related to the subject matter of
this Agreement (a "Related Agreement"), any default by CFT or ARC under a
Related Agreement shall be construed as a default under this Agreement and
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vice versa, and ARC and CFT respectively shall have all remedies available
to it pursuant to this Agreement and the Related Agreements. ARC or CFT, as
applicable, may apply money received from or due to the other against any
money due and payable under this Agreement or any Related Agreement.
SECTION 14 - SAFETY
The parties shall ensure that their personnel when on ARC, Alberta Government or
CFT premises comply with all applicable Federal and Provincial Health and Safety
Acts and Regulations, and all relevant health and safety, policies and
procedures imposed by ARC, the Alberta Government or CFT, as the case may be.
ARC and CFT will provide written notice to each other of their respective health
and safety policies and procedures.
SECTION 15 - SECURITY OF PREMISES
The parties shall ensure that their personnel when on the others' premises
comply with the security and confidentiality policies and procedures imposed by
ARC or CFT as the case may be. ARC and CFT will provide written notice to each
other of their respective security and confidentiality policies and procedures.
Such personnel shall, if required by either party, acting reasonably, sign a
Confidentiality Agreement in the form prescribed by the requesting party.
SECTION 16 - NOTICES
All notices, reports, invoices, payments and formal communications (collectively
referred to as "Notices") required or permitted to be given hereunder shall be
in writing and shall be delivered personally or facsimile transmission to the
following address or such other address as the relevant party may notify from
time to time:
ALBERTA RESEARCH COUNCIL INC. CRAILAR FIBER TECHNOLOGIES INC.
000 Xxxx Xxxxx Xxxx 1307 Venables Street
Edmonton, Alberta Xxxxxxxxx, X.X.
X0X 0X0 X0X 0X0
CONTACT NAME: Xxxxxxx Xxxxxx CONTACT NAME: Xxx Xxxxxxx
Telephone: 000-000-0000 Telephone: (000) 000-0000
Fax: 000-000-0000 Fax: (000) 000-0000
Email: Xxxxxxx.Xxxxxx@xxx.xx.xx Email:
Notices personally served shall be deemed to be received when actually
delivered, provided such delivery shall be during normal business hours.
INVOICING INFORMATION
ALBERTA RESEARCH COUNCIL INC. CRAILAR FIBER TECHNOLOGIES INC.
000 Xxxx Xxxxx Xxxx 1307 Venables Street
Edmonton, Alberta T6N 1E4 Xxxxxxxxx, X.X.
X0X 0X0
CONTACT NAME: Xxx Xxxxxxxx CONTACT NAME:
Telephone: 000-000-0000 Telephone: (000) 000-0000
Fax: 000-000-0000 Fax: (000) 000-0000
Email: Xxx.Xxxxxxxx@xxx.xx.xx Email:
SECTION 17 - NON-SOLICITATION
CFT shall not hire or make an offer of employment to any employee of ARC who is
involved in performing the Project Services unless CFT:
(a) obtains the written consent of ARC, such consent not to be
unreasonably withheld; and
(b) enters into an agreement to amend the terms of this Agreement as may
be required as a result of the hiring of such employee.
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SECTION 18 - DISPUTE RESOLUTION
18.1 ARC and CFT may by agreement refer matters to be resolved by the Management
Committee established pursuant to section 2.
18.2 ARC and CFT may by agreement refer matters to be resolved by an expert, who
shall function as an expert and not as a mediator or arbitrator.
18.3 ARC and CFT may by agreement refer matters to be resolved by the Chief
Executive Officer of ARC.
18.4 ARC and CFT may by agreement seek to resolve any disputes or disagreements
through mediation.
18.5 Matters in dispute under this Agreement may be submitted to arbitration by
a single arbitrator in accordance with the ARBITRATION ACT (Alberta), whose
decision shall be final and binding upon the parties hereto. Any such
arbitration shall take place before a single arbitrator either mutually
agreed to or selected by the Court. If the two parties cannot agree on a
single arbitrator, then the arbitration shall take place before 3
arbitrators, one of whom shall be designated by CFT, one by ARC and the
third by the two so designated.
SECTION 19 RELATIONSHIP
Nothing in this Agreement shall be construed as:
(a) constituting any party as the agent, employee or representative of any
other party; or
(b) creating a partnership or as imposing upon any party any partnership
duty, obligation or liability to any other party.
SECTION 20 - GENERAL
20.1 Nothing in this Agreement shall be construed so as to constitute either
party as the agent, employee, partner, joint venturer, or representative of
the other party.
20.2 This Agreement shall enure to the benefit of and be binding upon the
parties, their respective heirs, administrators, legal representatives,
successors and assigns.
20.3 Neither party shall be liable to the other for any failure or delay in
performance of its obligations caused by circumstances beyond its control,
including but not limited to acts of God, strikes, laws imposed after the
fact, governmental restrictions, riots, wars, civil disorder, rebellion,
sabotage, fire, flood, explosion, earthquake or other disasters.
20.4 This Agreement may be amended by the parties by mutual consent. Any
amendment to this Agreement must be in writing signed by all parties before
that amendment is deemed to take effect.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first above written.
ALBERTA RESEARCH COUNCIL INC. CRAILAR FIBER TECHNOLOGIES INC.
Per: Per:
_________________________________ ______________________________
Name: Xxxxxxx Xxxxxx, Name:
Title: Market Development Manager Title:
Per: Per:
_________________________________ ______________________________
Name: Xxxxx Xxxxxxx, Name:
Title: VP Life Sciences Title:
Per:
_________________________________
Name: Xxxxx Xxxxxx,
Title: Chief Financial Officer
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SCHEDULE "A"
FIRST PROJECT AGREEMENT
PROJECT AGREEMENT NO. 1
DATE April 1st/2007
This Project Agreement is made pursuant to the terms and conditions of the
Master Agreement for Product Development between ALBERTA RESEARCH COUNCIL INC.
("ARC") and CRAILAR FIBRE TECHNOLOGIES INC. ("CFT") dated January 1st, 2007. In
the event of any discrepancy between this Project Agreement and the Master
Agreement for Product Development, this Project Agreement shall prevail.
PART 1 - SCOPE OF PROJECT SERVICES
A. Project Name - Process and product development for producing
cellulose-based monofilaments from xxxx fibre materials.
B. Project Description
Develop processes and processing conditions for producing cellulose-based
monofilaments from xxxx fibre materials for use in textiles and composite
applications.
C. Deliverables
1. Demonstrate or create and demonstrate method for preparing chopped,
decorticated xxxx fibre for subsequent processing.
2. Demonstrate or create and demonstrate method of producing dissolving
pulp from xxxx fibre materials.
3. Demonstrate or create and demonstrate method for dissolving pulps and
testing their solution viscosities prior to extruding cellulose-based
monofilaments.
4. Demonstrate or create and demonstrate method for hydrophobically
treating cellulose-based monofilaments.
5. Identify and evaluate opportunities for improving cost and
environmental performance of all processes linked to Crailar fibres.
D. Work Schedule
1. Commencement Date: Work is underway as of January 1st/2007
2. Milestones
1. Preparing xxxx fibres for subsequent processing:
a. Creation and demonstration of chopping/decortication method
(completed)
b. Optimization of method (done in conjunction with dissolving
pulp production)(June 2007)
c. Scale-up and evaluation of method. (December 2007)
d. Evaluation of potential IP position regarding xxxx fibre
preparation (August 2007)
2. Xxxx fibre dissolving pulp production:
a. Demonstration of dissolving pulp production and bleaching
(completed)
b. Optimization of hydrolysis, pulping and bleaching conditions
(done in conjunction with both fibre processing and pulp
dissolution) (completed)
c. Scale-up production of xxxx fibre dissolving pulps (October
2007)
d. Creation and demonstration of new methods for hydrolysis,
pulping and/or bleaching. (November 2007)
e. Evaluation of potential IP position regarding xxxx fibre
dissolving pulp production (December 2007)
3. Cellulose dissolution and testing
a. Selection of dissolution method (April 2007)
Page 10 of 25
b. Optimization of dissolution conditions (done in conjunction
with dissolving pulp production and cellulose monofilament
extrusion) (October 2007)
c. Scale-up of cellulose dissolution for larger batch
monofilament extrusion. (March 2008) d. Evaluation of
potential IP position regarding xxxx fibre pulp dissolution.
(March 2008)
4. Monofilament extrusion
a. Demonstration of extrusion process for xxxx fibre
cellulose-based monofilament (April 2007)
b. Optimization of extrusion process (done in conjunction with
cellulose dissolution and testing) (September 2007)
c. Production of test market quantities of extruded
monofilament from xxxx fibre cellulose. (March 2008)
5. Fibre treatment:
a. Demonstration of hydrophobic modification (December 2007)
b. Optimization and testing (dyeability, bleachability, hand,
blendability, water repellency)(June 2008)
c. Scale-up (August 2008)
d. Creation and demonstration of new chemistries or means of
rendering cellulose-based monofilaments hydrophobic. (March
2008)
e. Evaluation of potential IP position regarding hydrophobic
modification. (March 2008)
6. Process design and economic analysis (ARC + CFT) (September 2008
for all of the above; individual process components as they are
available).
7. Market Analysis (CFT). (September 2008 for all of the above;
individual components as they come available).
Figure 1. Milestone Xxxxx Chart
[Milestone Xxxxx Chart Appears Here]
8. Completion Date: Project Services will be complete upon the
earlier of ARC providing all Deliverables under Part C, or
December 31, 2008, whichever is earlier
Page 11 of 25
E. Project Manager: Xxxx Xxxxx
(essential personnel)
Xxxx Xxxxx - fibre processing
Xxxxx Xxx - chemical extraction, pulping and bleaching.
Xxxxx Xxxx - cellulose dissolution and viscosity testing
Yaman Boluk or Xxx Xxxx - hydrophobic modification
(IMI Montreal) - monofilament extrusion
F. Reporting Requirements
Recommend written quarterly project updates with budget and technical progress.
A minimum of one annual meeting for project discussions (Quarterly meetings are
recommended).
PART 2 - BUDGET AND CONTRIBUTIONS
The Management Committee identified in Section 2 of the Master Services
Agreement will determine the allocation of contributions by ARC and CFT in
support of this Project as outlined in Section 4.3 and 4.4 of the Master
Services Agreement. These allocations will be reviewed and adjusted as required
to accommodate additional projects created under the Master Services Agreement.
Neither ARC or CFT will be required to make contributions of any nature in
excess of those agreed upon pursuant to the Master Services Agreement, or by the
Management Committee in accordance with this Part 2.
PART 3 - OTHER TERMS
AUTHORIZED ON BEHALF OF: AUTHORIZED ON BEHALF OF:
ALBERTA RESEARCH COUNCIL INC. CRAILAR FIBER TECHNOLOGIES INC.
Per: Per:
____________________________________ ________________________________
Name: Xxxx Xxxxx Name:
Title: Team Leader, Title:
Pulp and Paper
Per: Per:
____________________________________ ________________________________
Name: Xxx Xxxxxxxx Name:
Title: Business Unit Manager, Title:
Forest Products
Page 12 of 25
SCHEDULE "B"
SAMPLE PROJECT AGREEMENT
PROJECT AGREEMENT NO. __________
DATE ____________
This Project Agreement is made pursuant to the terms and conditions of the
Master Agreement for Product Development between ALBERTA RESEARCH COUNCIL INC.
("ARC") and CRAILAR FIBER TECHNOLOGIES INC. ("CFT") dated ____________________.
In the event of any discrepancy between this Project Agreement and the Master
Agreement for Product Development, this Project Agreement shall prevail.
PART 1 - SCOPE OF PROJECT SERVICES
G. Project Name
H. Project Description
I. Deliverables
J. Work Schedule
1. Commencement Date
2. Milestones
3. Targeted Completion Date
K. Project Manager (essential personnel)
L. Reporting Requirements
PART 2 - BUDGET AND CONTRIBUTIONS
PART 3 - OTHER TERMS
AUTHORIZED ON BEHALF OF: AUTHORIZED ON BEHALF OF:
ALBERTA RESEARCH COUNCIL INC. CRAILAR FIBER TECHNOLOGIES INC.
Per: Per:
____________________________________ ________________________________
Name: Name:
Title: Title:
Per: Per:
____________________________________ ________________________________
Name: Name:
Title: Title:
Page 13 of 25
SCHEDULE "C"
FORM OF LICENCE AGREEMENT
THIS AGREEMENT made as of the ____ day of _________, 20__ (the "Effective Date")
BETWEEN:
ALBERTA RESEARCH COUNCIL INC.
("ARC")
- and -
CRAILAR FIBER TECHNOLOGIES INC.
("CFT")
The parties agree as follows:
SECTION 1 - DEFINITION AND INTERPRETATION
(1) In this Agreement, including this Section, the following defined terms have
the meanings indicated:
(a) "ARC Technical Information" means know-how, procedures, combination of
steps, processes, apparatus designs, specifications and information
owned or controlled by ARC that is related to the Patent Rights,
including that described on Appendix 1;
(b) "Confidential Information" means all confidential, scientific,
financial and other information, all manufacturing, marketing, sales
and distribution data, all scientific and test data, documents,
methods, techniques, formulations, operations, know-how, experience,
skill, trade secrets, computer programs and systems, secret processes,
practices, ideas, inventions, designs, devices, reports, plans and
drawings disclosed by one party to another party, whether orally or in
writing, and identified by the disclosing party as being confidential
(c) "Gross Sales" means the total gross monies (or the monetary equivalent
of non-cash consideration) for the sale or other disposition of
Licensed Products by CFT and its sublicensees, less qualifying costs
directly attributable to such sale or other disposition and actually
allowed or borne by CFT, such qualifying costs not to exceed
reasonable and customary amounts in the market in which the sale or
other disposition occurred, and limited to the following:
(i) costs incurred for freight, transportation or insurance during
transportation;
(ii) sales and excise taxes or customs duties or any other government
taxes, duties, charges or levies imposed upon the sale,
manufacture, transportation, storage or delivery of the Licensed
Products.; and
(iii) credits or allowances given or made for rejection or return of
previously sold Licensed Products or in relation to any warranty
claim
Licensed Products shall be deemed sold or disposed of at the time that
CFT or its sublicensees bills, invoices, ships or receives payment for
such Licensed Product, whichever event occurs first;
(d) "Licensed Products" means ________________ [or as described on
Appendix 2];
(e) "Licensed Technology" means the Patent Rights and ARC Technical
Information;
(f) "CFT Field of Use" means ______________________
(g) "Patent Rights" means:
Page 14 of 25
(i) those patents listed on Appendix 3 hereto including divisions,
re-issues, continuations, renewals and extensions;
(ii) those patent applications listed on Appendix 3 hereto, any
patents which may be issued out of such patent applications, and
any additional patent applications that may claim priority from
such patent applications;
(iii) all patent applications that relate to the inventions listed on
Appendix 3 hereto, and patents which may issue out of such
applications;
(h) "Regulatory Approval" means any approvals, licenses, registrations or
authorizations of any relevant authority having jurisdiction necessary
for the use of the Licensed Technology;
(i) "Term" means the term of this Agreement commencing on the Effective
Date and ending upon expiry of the licences in accordance with Section
2 or termination in accordance with Section 11;
(j) "Territory" means _________________________
(k) "Valid Claims" shall mean a claim:
(i) in any unexpired and issued patent included in the Patent Rights
that has not been disclaimed, revoked or held invalid or
unenforceable by a final unappealable decision of a court or
government agency of competent jurisdiction; or
(ii) in any pending patent application included in the Patent Rights,
which patent application has been on file with the applicable
patent office for no more than 10 years from the earliest date to
which the patent application claims its earliest priority.
(2) This Agreement shall be governed by and interpreted in accordance with the
laws in force in the Province of Alberta. The parties submit to the
jurisdiction of the courts of Alberta.
(3) All monetary units in this Agreement are in Canadian dollars.
(4) The following schedules are incorporated into and form part of this
Agreement:
Appendix 1 - ARC Technical Information
Appendix 2 - Licensed Product
Appendix 3 - Patent Rights
SECTION 2 - GRANT OF LICENCE
(1) ARC hereby grants CFT an exclusive, royalty bearing licence to manufacture,
market, distribute, sell or otherwise dispose of Licensed Products, within
the CFT Field of Use and within the Territory.
(2) CFT shall only grant sublicences under the licences granted pursuant to
Section 2(1) with the prior written consent of ARC.
(3) Unless sooner terminated pursuant to Section 11 or by mutual agreement of
ARC and CFT, the licences granted pursuant to Section 2(1) shall commence
on the Effective Date and shall continue in force for a period of _ _ (___)
years. [NTD: OR FOR SO LONG AS THERE ARE VALID CLAIMS]
(4) If:
(a) CFT is not in default of any of its obligations under this Agreement;
(b) CFT gives written notice to ARC not less than ___ months prior to the
expiry of the initial Term; and
Page 15 of 25
(c) [NTD: Minimum sales requirements];
this Agreement shall be renewed for an additional term of ______ (___) years,
which renewal shall include a further right of renewal subject to the same
conditions as contained in this Section 2(4).
(5) Notwithstanding the licence granted pursuant to Section 2(1), ARC shall
retain the right to use the Licensed Technology for ARC's own internal
research and development purposes.
SECTION 3 - LICENCE FEES, MILESTONE PAYMENTS AND ROYALTIES
(1) CFT shall pay to ARC an initial licence fee of $__________ payable within
___ days following the Effective Date.
(2) CFT shall pay to ARC the following milestone payments: [NTD: TO BE
DETERMINED]
(3) CFT shall pay to ARC a royalty equal to ___% of Gross Sales.
(4) CFT shall pay to ARC a minimum annual royalty for each calendar year equal
to [TO BE DETERMINED] less all royalties paid by CFT to ARC in accordance
with Section 3(3) with respect to that calendar year.
(5) Payment of royalties in accordance with Section 3(3) shall be calculated
for each calendar quarter and shall be payable with thirty (30) days after
the end of each calendar quarter. Each payment shall be accompanied by a
report which shall provide such information as is reasonably required by
ARC to permit an accurate determination of the amount payable.
(6) CFT shall keep, and shall cause its sublicensees to keep, full, accurate
and complete records and books of account related to Gross Sales and
amounts payable pursuant to this Section 3. ARC may, from time to time,
upon providing reasonable prior written notice to CFT, have the records and
books and account of CFT and its sublicensees audited or examined by a
representative of ARC, or by an independent chartered accountant, to
ascertain the accuracy of the payments made. The auditor shall report on
the following:
(a) whether or not the records and books of account were adequate to
permit a determination of the amount payable pursuant to this
Agreement; and
(b) the amounts payable and whether any underpayment or overpayment has
been made;
All costs of an audit or examination made pursuant to this Section shall be
payable by ARC, unless the report indicates that the records and books of
account were inadequate to permit a determination of the amounts payable, or if
the report indicates any underpayment of three (3%) percent or more, in which
the costs of the audit, examination or report shall be borne by CFT.
(7) If CFT fails to pay any amount payable pursuant to this Agreement, the
amount payable shall bear interest from the due date to the date of payment
at a rate per month equal to one (1%) percent, with interest on overdue
interest at the same rate.
SECTION 4 - COMMERCIALIZATION
(1) CFT shall use reasonable commercial efforts to market, distribute, sell,
lease or rent Licensed Products.
(2) CFT shall keep ARC informed of its activities with respect to its
responsibilities pursuant to this Section 4, and without limiting the
generality of the foregoing, shall provide a written report to ARC
quarterly, within thirty (30) days after the end of each calendar quarter,
reviewing all steps taken to commercially develop the Licensed Technology
and sell, lease or rent Licensed Products.
Page 16 of 25
(3) Prior to the end of each calendar, CFT shall provide to ARC a marketing
plan for the next calendar year, setting out in reasonable detail CFT's
plans with respect to:
(a) marketing of Licensed Products;
(b) sublicensing the Licensed Technology;
(c) an estimate of the number of Licensed Products CFT anticipates
selling.
(4) On or before January 31 in each year, CFT shall provide a written report to
ARC summarizing for the prior calendar year the effects and results of
CFT's commercialization activities. The information to be provided shall be
provided in such form that ARC will not be required to keep the information
confidential and shall include:
(a) employment created;
(b) domestic markets and sales;
(c) international markets and sales;
(d) new investments and research and development; and
(e) other matters related to the impact on the economy of Alberta, as
reasonably requested by ARC.
(5) Prior to the end of each calendar year, ARC and CFT shall negotiate in good
faith to establish a minimum number of Licensed Products to be sold by CFT
in the next calendar year. If ARC and CFT are unable to agree upon the
minimum number for the next year:
(a) during the initial __________ year Term, either party may refer the
disagreement to be resolved by arbitration in accordance with Section
15; or
(b) at any time after the initial _________ year Term, ARC may terminate
this Agreement upon written notice to CFT.
(6) If CFT does not sell the minimum number of Licensed Products agreed upon in
any year, ARC may, by written notice to CFT:
(a) convert the licence in Section 2(1) to a non-exclusive licence; or
(b) terminate this Agreement.
SECTION 5 - WARRANTIES, LIABILITY, INDEMNITY AND INSURANCE
(1) CFT shall be responsible for and bear all liability related to the
manufacture and sale of Licensed Products, including compliance with all
regulatory requirements of all government authorities having jurisdiction.
CFT shall be responsible for any representations or warranties given to
purchasers of the Licensed Products.
(2) ARC represents and warrants to CFT:
(a) the ARC is the owner of the Patent Rights
(b) ARC has not assigned or licensed to any other person any of the
Licensed Technology.
(c) to the best of ARC's knowledge, the claims contained in the Patent
Rights do not infringe any patent rights of any other person; and
Page 17 of 25
(d) ARC is entitled to and has authority to grant the Licensed Technology
and to enter into this Agreement.
(3) Nothing in this Agreement shall be construed as an express or implied
warranty or representation by ARC:
(a) as to the validity or scope of any patent included in the Patent
Rights;
(b) that subject to Section 5(2), the manufacture, sale or use of the
Licensed Products will be free from infringement of other proprietary
rights; or
(c) that the Licensed Products are fit for any particular purpose or of
merchantable quality.
(4) Subject to subsections 5(1) and 5(2) hereof, each party shall assume and be
liable for its own losses, costs, damages and expenses of any nature
whatsoever which it may suffer, sustain, pay or incur by reason of any
matter or thing arising out of or in anyway attributable to this Agreement
or the Licensed Technology, except where such losses, costs, damages and
expenses are the result of the willful breach of any term hereof by the
other party, or the willful or negligent acts or omissions of the other
party, or those of the other party's servants, agents, employees or
subcontractors.
(5) Each party shall, at its own expense and without limiting its liabilities
herein, be responsible for insuring its operations in an amount not less
than $2,000,000 inclusive per occurrence, insuring against bodily injury,
and property damage, including loss of use thereof. Such insurance shall
include blanket contractual liability.
(6) CFT shall maintain product liability insurance in relation to the Licensed
Products in a form and amount that is appropriate and reasonable having
regard to the nature of the products and the CFT Field of Use. CFT shall
promptly provide a detailed certificate of insurance to ARC and, upon ARC's
request, shall provide certified true copies of the required coverage. Such
insurance shall include ARC as an additional insured.
SECTION 6 - CONFIDENTIALITY
(1) Any Confidential Information which is disclosed by one party to the other
party shall be treated as confidential by the receiving party and such
Confidential Information shall not be disclosed by the receiving party
unless consent in writing has been received from the other party. Each
party shall use diligent, commercially reasonable efforts to ensure that
the Confidential Information of the other party is not disclosed by it to
any other person, firm or corporation during the term of this Agreement and
for a period of five (5) years after the date of termination of this
Agreement.
(2) Nothing herein shall prevent a party from using, disclosing or authorizing
disclosure of information:
(a) with the prior express written consent of the party; or
(b) which comprises part of the New Intellectual Property, if such New
Intellectual Property is owned solely by that party; or
(c) which the receiving party can promptly demonstrate based on written
evidence to have been in its possession prior to that party's receipt
or acquisition from the other party; or
(d) which at the time of receipt or acquisition thereof is or thereafter
becomes a part of the public domain through no act or failure on the
part of either party; or
(e) which is disclosed by a third party without a covenant of
confidentiality, provided such third party is, to the knowledge of the
recipient, under no obligation of confidentiality with respect to the
information; or
(f) the receiving party can promptly demonstrate based on written evidence
to have been independently developed without access to or use of any
Confidential Information; or
(g) which is required to be disclosed by any applicable law. In any
circumstance in which a party is required by law to disclose any
Confidential Information of the other party, it will promptly give
notice of such requirement to the other party and will take all
reasonable steps to limit the disclosure only to such information as
it is required to disclose and will cooperate reasonably with the
other party to maintain the confidentiality of such information.
Page 18 of 25
(3) Any records required to be maintained by ARC pursuant to this Agreement are
subject to the protection and access provisions of the FREEDOM OF
INFORMATION AND PROTECTION OF PRIVACY ACT (Alberta).
SECTION 7 - PROTECTION, INFRINGEMENT AND ENFORCEMENT
(1) ARC shall be responsible for and shall take reasonable commercial efforts
to protect the Licensed Technology, including, without limitation, the
preparation, filing and prosecution of patent applications. Subject to
subsection (3), costs and expenses associated therewith shall be borne by
ARC and CFT in the following proportions: [TO BE DETERMINED]
(2) At the request of ARC, CFT shall cooperate with and provide reasonable
assistance to ARC in protection the Licensed Technology
(3) If ARC does not wish to seek patent protection for any aspect of the
Licensed Technology, or if ARC decides to abandon any patent application or
patent included within the Patent Rights, ARC shall give written notice to
CFT not less than ninety (90) days prior to the deadline for the filing of
the patent application or the abandonment of the patent application or
patent. CFT, at its sole option, may give written notice to ARC requiring
ARC to continue to prosecute any such patent application or maintain any
patent included in the notice from ARC, in which event CFT shall reimburse
ARC for all costs and expenses incurred in connection therewith
(4) If either ARC or CFT believes that the Patent Rights are being infringed by
another person within the CFT Field of Use and in the Territory, ARC or
CFT, as the case may be, shall promptly notify the other party and shall
provide any evidence of infringement which is reasonably available. CFT
shall have the first right and option, but not the obligation, to bring an
action for infringement, at CFT's sole cost and expense. If CFT elects to
take such action, CFT may name ARC as a party plaintiff in such action,
suit or proceeding if reasonably necessary under the circumstances,
provided that CFT shall indemnify and hold ARC harmless from any costs or
expenses incurred in connection with such action, suit or proceeding. CFT
shall not take any steps in any infringement action or enter into any
settlement agreements in such step or settlement would materially and
adversely affect the interests of ARC, or the Licensed Technology, unless
CFT obtains the written consent of ARC, such consent not to be unreasonably
withheld or delayed. Any damages or sums recovered by CFT in any such
action, suit or proceeding, or any settlement thereof, shall be retained by
CFT, but shall be treated as Gross Sales. If CFT and ARC agree to jointly
bring an action for infringement, all costs and expenses and all damages or
sums recovered shall be shared by CFT and ARC in the proportions agreed. If
CFT elects not to pursue an action for infringement within ____ months
after notice from ARC, whether alone or jointly with ARC, ARC shall have
the right and option, but not the obligation, at ARC's sole cost and
expense to bring an action for infringement. If ARC elects to take such
action, the conduct of the action shall be entirely under the direction and
control of ARC, and ARC may name CFT as a party plaintiff in such action,
suit or proceeding, if reasonably necessary under the circumstances,
provided that ARC shall indemnify and hold CFT harmless from any and all
costs or expenses incurred in connection with such action, suit or
proceeding. All damages or sums recovered by ARC in any such action, suit
or proceeding, or any settlement thereof, shall be retained by ARC. ARC
shall reimburse CFT for costs it may incur in connection with such action,
suit or proceeding
(5) The parties shall cooperate, including rendering all reasonable assistance
by providing documents in their possession and making witnesses available,
in defending any impeachment, interference or infringement action, suit or
proceeding related to the Patent Rights. The conduct of the action shall be
under the direction and control of ARC.
(6) The parties shall render all reasonable assistance, including providing all
documents in their possession and any witnesses as are or may be required
in the conduct of any proceeding referred to in this Section 7. If any
party renders such assistance at the request of the other party, the
requesting party shall reimburse the assisting party for direct expenses
incurred to render such assistance.
Page 19 of 25
SECTION 8 - TERMINATION
(1) If:
(a) a party has breached any of its obligations pursuant to this Agreement
and has failed to remedy such breach within thirty (30) days after
notice in writing from the other party, or if the nature of the breach
is such as to reasonably require more than thirty (30) days to remedy,
if the party has failed to commence to remedy such breach within
thirty (30) days and thereafter diligently pursued the remedy of such
breach to completion;
(b) a party becomes bankrupt or insolvent or takes the benefit of any
statute for bankrupt or insolvent debtors or makes any proposal,
assignment or arrangement with its creditors, or any steps are taken
or proceedings commenced by any person for the dissolution, winding-up
or other termination of the party's existence or the liquidation of
its assets;
(c) a trustee, receiver, receiver-manager or like person is appointed with
respect to the business or assets of a party;
the party not in default may, by notice in writing given to the party in
default, terminate this Agreement.
(2) The following Sections shall survive the expiration or early termination of
this Agreement: 1, 3, 5, 6 and 9.
SECTION 9 - PUBLICITY
(1) Each party to this Agreement is encouraged to originate, publicity, news
releases or other public statements or announcements, whether written or
oral, relating to this Agreement. Each party shall obtain the written
approval of the other party, such approval not to be unreasonably withheld,
to the content of the publicity, news release or other public statement or
announcement prior to originating or releasing it.
(2) Any publicity, news release or other public statement or announcement,
whether written or oral, made by either party describing anything related
to this Agreement shall acknowledge the participation and contribution of
each party to this Agreement, unless a party requests that their
participation and contribution not be disclosed.
(3) Notwithstanding anything contained in subsections (1) or (2), any
publicity, news release or other public statement or announcement, whether
written or oral, made by one party alone shall not state or in any way
imply that the other party is endorsing, approving, recommending or giving
any warranties related to any of the matters referred to in the publicity,
news release or other public statement or announcement or any aspect of the
this Agreement. At the request of either party, the other party shall
include in any publicity, news release or other public statement or
announcement a disclaimer in a form satisfactory to the requesting party.
(4) The parties shall not use each other's name in any advertising material
without the prior written consent of the other party, which consent may be
arbitrarily withheld.
SECTION 10 - RELATIONSHIP
(1) Nothing in this Agreement shall be construed as:
i. constituting any party as the agent, employee or representative of any
other party; or
ii. creating a partnership or as imposing upon any party any partnership
duty, obligation or liability to any other party.
SECTION 11 - FURTHER ASSURANCES
The parties shall with reasonable diligence take all action, do all things,
attend or cause their representatives to attend all meetings, and execute all
further documents, agreements and assurances as may be required from time to
Page 20 of 25
time in order to carry out the terms and conditions of this Agreement in
accordance with their true intent.
SECTION 12 - DISPUTE RESOLUTION
(1) ARC and CFT may by agreement refer matters to be resolved by the Management
Committee established pursuant to section 2.
(2) ARC and CFT may by agreement refer matters to be resolved by an expert, who
shall function as an expert and not as a mediator or arbitrator.
(3) ARC and CFT may by agreement refer matters to be resolved by the Chief
Executive Officer of ARC.
(4) ARC and CFT may by agreement seek to resolve any disputes or disagreements
through mediation.
(5) Matters in dispute under this Agreement may be submitted to arbitration by
a single arbitrator in accordance with the ARBITRATION ACT (Alberta), whose
decision shall be final and binding upon the parties hereto. Any such
arbitration shall take place before a single arbitrator either mutually
agreed to or selected by the Court. If the two parties cannot agree on a
single arbitrator, then the arbitration shall take place before 3
arbitrators, one of whom shall be designated by CFT, one by ARC and the
third by the two so designated.
SECTION 13 - ASSIGNMENT
The parties shall not assign this Agreement or any part hereof, or any rights
hereunder without the prior written consent of the other parties, such consent
not to be unreasonably withheld.
SECTION 14 - NOTICES
Any notice or other communication required or permitted to be given hereunder
shall be in writing and shall be delivered personally or sent by prepaid
registered mail, facsimile transmission, email or by courier service, addressed
as follows:
TO ARC:
ALBERTA RESEARCH COUNCIL INC.
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxx
X0X 1 E4
Attention: Xxxxxxx Xxxxxx
Facsimile: 000-000-0000
Email: Xxxxxxx.Xxxxxx@xxx.xx.xx
TO CFT:
CRAILAR FIBER TECHNOLOGIES INC.
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxx X.X. X0X 0X0
Attention: Xxx Xxxxxxx
Facsimile: (000) 000-0000
Email:
Notices sent by prepaid registered mail or courier services shall be deemed to
be received by the addressee on the fifth day (excluding Saturdays, Sundays,
statutory holidays and any period of postal disruption) following the mailing
thereof. Notices personally served shall be deemed received when actually
Page 21 of 25
delivered or transmitted, provided such delivery or transmission shall be during
normal business hours. Notices sent by facsimile transmission or email shall
only be deemed received when actually received by the recipient.
SECTION 15 - ENUREMENT
This Agreement shall be binding upon and enure to the benefit of the
parties hereto and their respective successors and permitted assigns.
IN WITNESS WHEREOF, the parties have executed this Agreement this _____ day of
_________, 2007.
ALBERTA RESEARCH COUNCIL INC. CRAILAR FIBER TECHNOLOGIES INC.
Per: Per:
____________________________________ ________________________________
Name: Name:
Title: Title:
Per: Per:
____________________________________ ________________________________
Name: Name:
Title: Title:
Page 22 of 25
APPENDIX 1
ARC TECHNICAL INFORMATION
Page 23 of 25
APPENDIX 2
LICENSED PRODUCT
Page 24 of 25
APPENDIX 3
PATENT RIGHTS
PATENTS
PATENT APPLICATIONS
INVENTIONS AND DISCLOSURES
Page 25 of 25
