LICENSE AGREEMENT
This Agreement is entered into as of December 12, 1996 between Licensee
Xxxxx & Xxxxxxx, Limited, a corporation incorporated under the laws of England
and Wales ("A&B"), and Licensor Applied Microbiology, Inc., a New York
corporation ("AMBI") (collectively "parties").
WHEREAS, A&B and AMBI have entered into a Share Purchase Agreement (the
"Purchase Agreement") dated as of December 12, 1996 by and among A&B, AMBI, and
Xxxxx Xxxxx (UK) plc ("Xxxxx Xxxxx"), pursuant to which Xxxxx Xxxxx has agreed
to purchase all of the issued and outstanding shares of A&B from AMBI; and
WHEREAS, AMBI has developed, and maintained as confidential, certain
valuable PROPRIETARY INFORMATION, hereinafter defined, relating to NISIN
PREPARATIONS, hereinafter defined, with respect to the manufacture, use, and
sale of LICENSED PRODUCTS, hereinafter defined; and
WHEREAS, A&B desires the right to use AMBI's PROPRIETARY INFORMATION in
the manufacture, use, and sale of the LICENSED PRODUCTS; and
WHEREAS, AMBI has obtained, or may obtain, patents encompassed by the
PATENTED TECHNOLOGY, hereinafter defined, for certain inventions relating to the
manufacture, use, and sale of the LICENSED PRODUCTS; and
WHEREAS, A&B desires the right to use the inventions claimed in AMBI's
PATENTED TECHNOLOGY in the manufacture, use, and sale of the LICENSED PRODUCTS;
and
WHEREAS, the obligations of A&B and AMBI under the Purchase Agreement are
conditioned, among other things, upon the
execution and delivery of this Agreement by the parties hereto and the grant of
certain licenses by AMBI to A&B as hereafter set forth; and
WHEREAS, the obligations of A&B and AMBI under the Purchase Agreement are
conditioned, among other things, upon the simultaneous execution and delivery of
a counterpart License Agreement by the parties hereto granting certain licenses
by A&B to AMBI (the "A&B License Agreement"); and
WHEREAS, AMBI desires the right to use any inventions, modifications, and
improvements subsequently made or obtained by A&B that relate to the
manufacture, use, or sale of the EXCLUDED PRODUCTS, and A&B desires the right to
use any inventions, modifications, and improvements subsequently made or
obtained by AMBI that relate to the manufacture, use, or sale of the LICENSED
PRODUCTS; and
WHEREAS, AMBI recognizes that additional classes of products may be
developed by A&B which would be incorporated into the listing of LICENSED
PRODUCTS, and A&B recognizes that additional classes of products may be
developed by AMBI which would be incorporated into the listing of EXCLUDED
PRODUCTS.
NOW THEREFORE, for good and valuable considerations, the receipt and
sufficiency of which is hereby acknowledged, the parties hereby agree as
follows:
1 CERTAIN DEFINITIONS
1.1 "LICENSED PRODUCTS" shall mean all A&B products comprising,
incorporating, or relating to NISIN PREPARATIONS, whether existing or
subsequently developed, for the fields of application that are described by the
general classifications listed in Exhibit A-1 attached hereto.
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1.2 "EXCLUDED PRODUCTS" shall mean all AMBI products comprising,
incorporating, or relating to NISIN PREPARATIONS for the fields of application
that are described by the general classifications listed in Exhibit A-2 attached
hereto.
1.3 "PROPRIETARY INFORMATION" shall mean all secret or confidential
information relating to the LICENSED PRODUCTS including, without limitation,
reagents, computer programs, names and expertise of employees and consultants,
know-how, formulas, processes, procedures, ideas, inventions (whether patentable
or not), schematics and other technical, business, financial, customer and
product development plans, forecasts, strategies, or other confidential
information, including currently pending and unpublished patent applications, or
subsequently filed and unpublished patent applications, including information
obtained from third parties to the extent that AMBI is permitted to disclose
such information to A&B, relating to the general classifications listed in
Exhibit B.
1.4 "PATENTED TECHNOLOGY" shall mean those inventions claimed in any
patents obtained by, assigned to, or licensed to AMBI (to the extent that AMBI
is permitted to sublicense such patents to A&B), relating to the LICENSED
PRODUCTS during the term of this Agreement including any such patents listed in
Exhibit B.
1.5 "TECHNICAL INFORMATION" shall mean technical information other than
the PROPRIETARY INFORMATION and the PATENTED TECHNOLOGY within AMBI's control,
including information obtained from third parties to the extent that AMBI is
permitted to disclose such information to A&B, relating to the manufacture of
NISIN PREPARATIONS or the LICENSED PRODUCTS.
1.6 "NISIN PREPARATIONS" shall mean all products containing a measurable
concentration of any form, variant, or derivative of nisin.
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2 SCOPE OF LICENSE GRANT
2.1 Subject to all the terms and limitations of this Agreement, AMBI
grants to A&B the perpetual, sole and exclusive, non-transferable, and
world-wide rights and licenses, to use AMBI's PROPRIETARY INFORMATION, TECHNICAL
INFORMATION, and PATENTED TECHNOLOGY in developing, manufacturing, having
manufactured, using, selling, marketing, or distributing the LICENSED PRODUCTS.
Full consideration for this Agreement is provided by the execution of, and
continued compliance with, the counterpart A&B License Agreement under which
AMBI will receive rights and licenses to A&B's PROPRIETARY INFORMATION,
TECHNICAL INFORMATION, and PATENTED TECHNOLOGY, the rights and licenses granted
under the A&B License Agreement having an equivalent annual value to the rights
and licenses granted under this Agreement.
2.2 AMBI and A&B agree that this Agreement includes the right to
sublicense or disclose the PROPRIETARY INFORMATION and TECHNICAL INFORMATION to
a third party provided that any such sublicense or disclosure expressly
obligates any such third party to conform to the obligations imposed on A&B
under this Agreement regarding the confidentiality of the PROPRIETARY
INFORMATION, is not made to any person or entity involved in the manufacture of
any EXCLUDED PRODUCTS for other than AMBI or its affiliates, is not made to any
person or entity manufacturing any NISIN PREPARATIONS for sale or delivery other
than to, or on behalf of, A&B, AMBI, or their affiliates, and is otherwise
consistent with the scope of the license and obligations under this Agreement,
and further provided that A&B shall provide notice of each such sublicense or
disclosure to AMBI within thirty (30) days, and shall, at AMBI's request,
provide a copy of any such agreement relating to such sublicense or disclosure
to AMBI, A&B having the right to redact financial information from such copies.
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2.3 AMBI and A&B agree that this Agreement includes the right to
sublicense to any third party any portion or element of the PATENTED TECHNOLOGY
provided that any such sublicense is not made to any person or entity involved
in the manufacture of any EXCLUDED PRODUCTS for other than AMBI or its
affiliates, is not made to any person or entity manufacturing any NISIN
PREPARATIONS for sale or delivery other than to, or on behalf of, A&B, AMBI, or
their affiliates, and is otherwise consistent with the scope of the license and
obligations under this Agreement, and further provided that A&B shall provide
notice of each such sublicense to AMBI within thirty (30) days, and shall, at
AMBI's request, provide a copy of any such sublicense to AMBI, A&B having the
right to redact financial information from such copies.
2.4 AMBI and A&B agree that this Agreement does not include the right of
A&B to develop, manufacture, use, sell, or distribute the EXCLUDED PRODUCTS.
2.5 AMBI and A&B agree that this Agreement includes the right of A&B to
manufacture, or have manufactured, NISIN PREPARATIONS for sale or distribution
by A&B or third parties for incorporation into the LICENSED PRODUCTS.
2.6 AMBI recognizes that new classes of products may be subsequently
developed by A&B and agrees that such new classes of products shall be
incorporated into the LICENSED PRODUCTS, Exhibit A-1, provided that A&B gave
written notice to AMBI of each such proposed class and that AMBI has not, within
thirty (30) days, objected to the proposed new class of products as detrimental
to AMBI's ability to manufacture, use, or sell the EXCLUDED PRODUCTS. To the
extent that A&B disagrees with AMBI's objection, A&B shall seek redress only in
accordance with paragraph 10.5.
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2.7 AMBI and A&B further agree that this Agreement does not include the
right of A&B to use any of AMBI's copyrights, trademarks, or trade names, in
connection with the manufacture, use, sale, or distribution of any of the
LICENSED PRODUCTS. However, AMBI agrees that A&B may deplete, in the normal
course of business, its inventory of materials and products bearing the "Applied
Microbiology" tradename.
2.8 The parties further agree that A&B has the right to provide purified
NISIN PREPARATIONS to other commercial entities only under terms and conditions
which limit its use to research of, development of, experimentation for, or
manufacturing of the LICENSED PRODUCTS; and that A&B has the right to provide
purified NISIN PREPARATIONS to academic or non-profit institutions only under
terms and conditions which limit its use to research of, development of, or
other experimentation for the LICENSED PRODUCTS and which further provide that
all right, title, and interest to intellectual property arising from such work
shall be granted to A&B. Any agreement for providing purified NISIN PREPARATIONS
for use in LICENSED PRODUCTS shall provide that no licenses are granted to use
the products supplied for other than their intended purpose. For the purpose of
this paragraph, purified NISIN PREPARATIONS shall mean NISIN PREPARATIONS which,
at any time, had a peptide purity of more than 25%, i.e. at least 25% of the
protein present by weight is or was nisin.
3 TRANSFER OF PROPRIETARY INFORMATION
3.1 AMBI shall furnish to A&B, as soon as is reasonably practicable after
the effective date of this Agreement, in the form or forms that are mutually
acceptable to the parties, the PROPRIETARY INFORMATION, PATENTED TECHNOLOGY, and
TECHNICAL INFORMATION necessary to enable A&B to manufacture, have manufactured,
use, and sell the LICENSED PRODUCTS. When the
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foregoing PROPRIETARY INFORMATION, PATENTED TECHNOLOGY, and TECHNICAL
INFORMATION is available in tangible form, it shall be provided in tangible
form, and when available in machine readable form, it shall be provided on
mutually acceptable media.
3.2 To the extent that the PROPRIETARY INFORMATION is provided in
documentary form, including written, graphic, or machine readable form, at least
the first page of any such document, or the label attached to any such machine
readable form, shall be suitably marked by AMBI to indicate its confidential
nature.
3.3 A&B agrees that, to the extent any document provided by AMBI and
marked in accordance with paragraph 3.2 is copied or otherwise reproduced, in
whole or in part, each copy or reproduction will be marked by A&B to indicate
its confidential nature.
3.4 All PROPRIETARY INFORMATION shall remain at all times the property of
AMBI and shall not be used by A&B beyond the scope of the license granted under
this Agreement.
3.5 Upon termination of this Agreement pursuant to paragraph 7.3 as the
result of a breach by A&B, A&B shall, at AMBI's option, return to AMBI, or
destroy and provide certification of such destruction to AMBI, all PROPRIETARY
INFORMATION, including all copies, revisions, and translations thereof, and
shall thereafter make no use of the PROPRIETARY INFORMATION.
4 TECHNICAL ASSISTANCE
4.1 AMBI agrees to provide to A&B reasonable technical support and
assistance in connection with A&B's manufacturing of
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the LICENSED PRODUCTS for a period of two (2) years from the effective date of
this Agreement. The term "sublicensee" as used in this Section includes
"assignees and transferees" in accordance with paragraph 10.3.
4.2 The technical support and assistance provided by AMBI may include, as
reasonably required, meetings with AMBI technical personnel at AMBI's
facilities, visits by AMBI technical personnel to A&B's or its sublicensees'
facilities, observation of AMBI's manufacturing operation by technical personnel
of A&B, its consultants, or its duly sublicensed manufacturers of NISIN
PREPARATIONS, and on site support at A&B's or its sublicensees' facilities,
subject to the following terms and conditions:
4.2.1 Such technical support and assistance services will only be
provided at the request of A&B, or its successor in accordance with
paragraph 10.3, requests for the support and assistance to sublicensees
provided at AMBI's facility being subject to AMBI's approval, such
approval not to be unreasonably withheld;
4.2.2 Such services will be provided at times, places, and in a
manner mutually acceptable to the parties;
4.2.3 Such technical support and assistance services provided during
visits by A&B personnel and approved sublicensees to AMBI's facilities
will not exceed a total of forty-five (45) working days in any one year
period;
4.2.4 Such technical support and assistance services provided by
AMBI personnel at A&B's and its sublicensees' facilities will not exceed a
total of sixty (60) person-days in any one year period;
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4.2.5 AMBI shall not place a surcharge on any such services, but A&B
shall, subject to paragraph 4.2.6, reimburse AMBI for all reasonable
expenses incurred in connection with the provision of such services
including, but not limited to, the salary, travel, meal and living
expenses of the AMBI personnel providing the service;
4.2.6 A&B shall not be responsible for any expense over $500
incurred by AMBI in conjunction with providing such technical support and
assistance without A&B's prior written approval;
4.2.7 The expenses related to AMBI's technical support and
assistance under paragraph 4.2.4 will be detailed in a statement to A&B
delivered as soon as reasonably available after the conclusion of any such
visit by AMBI's technical personnel.
5 INVENTIONS AND IMPROVEMENTS
5.1 A&B shall, in good faith, promptly notify AMBI of any inventions,
modifications, or improvements to, or applications of, the PROPRIETARY
INFORMATION or the PATENTED TECHNOLOGY relating to the manufacture,
modification, or use of NISIN PREPARATIONS in any of the LICENSED PRODUCTS where
such inventions, modifications, or improvements are reasonably related to or may
improve AMBI's manufacture, use, or sale of the EXCLUDED PRODUCTS. AMBI
recognizes and acknowledges that any such inventions, modifications, or
improvements are proprietary to and owned exclusively by A&B.
5.2 With respect to any notice provided to AMBI under paragraph 5.1, A&B
shall notify AMBI within thirty (30) days of filing for patent protection for
any such invention, modification, or improvement, shall specify the countries in
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which any such patent applications have been filed, and shall provide AMBI with
a copy of the first such application and a copy of any subsequent application
that includes new matter.
5.3 AMBI agrees to hold such inventions, modifications, improvements, or
applications as A&B's PROPRIETARY INFORMATION in accordance with the provisions
of the A&B License Agreement. After any such patent application is published, or
otherwise made publicly available in a manner consistent with the procedures of
the jurisdiction in which such application is pending, or a patent is granted,
information so published or otherwise made publicly available will no longer be
considered A&B's PROPRIETARY INFORMATION.
5.4 With respect to all such patent applications, A&B shall ensure that
none of AMBI's PROPRIETARY INFORMATION is disclosed in the specification or in
subsequent communications with the relevant patent office without the express
written consent of AMBI.
5.5 The parties agree that AMBI will have the non-exclusive right to use
any such inventions, modifications, or improvements, whether or not patented,
without payment or limitation, in the development, manufacture, use, and sale of
the EXCLUDED PRODUCTS in accordance with the terms and conditions of the A&B
License Agreement.
5.6 Upon AMBI's request, A&B shall provide a detailed description of any
such invention, modification, or improvement sufficient to enable AMBI to use
the same in the development, manufacture, use, and sale of the EXCLUDED
PRODUCTS.
5.7 The parties agree that AMBI will have the non-exclusive right to use,
without limitation, any inventions, modifications, or improvements to, or new
applications of, the PROPRIETARY INFORMATION, TECHNICAL INFORMATION, or PATENTED
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TECHNOLOGY in which A&B has or obtains rights arising from research contracted,
commissioned, directed, or funded by A&B ("Contracted Research"), including,
without limitation, Contracted Research to improve yields and to develop nisin
variants, that is reasonably applicable, in A&B's opinion, to the EXCLUDED
PRODUCTS, to the extent permitted and in accordance with the terms and
conditions of the A&B License Agreement and the terms and conditions of the
Contracted Research. AMBI will have no responsibility for any payments for such
Contracted Research other than those required under the terms and conditions of
the Contracted Research or which have been separately approved by AMBI, such
payments not being subject to any surcharge by A&B. A&B further agrees that it
will keep AMBI informed regarding the scope and objectives of the Contracted
Research, and results from such Contracted Research, that are reasonably
applicable to the EXCLUDED PRODUCTS.
5.8 With respect to inventions, modifications, or improvements for which
A&B is obligated to provide notice to AMBI under paragraph 5.1, the parties
agree that AMBI will have the non-exclusive right to review and use data or
other information developed during any experimental, clinical, qualification,
regulatory, or other testing, relating to any improvements to or new
applications of the PROPRIETARY INFORMATION, TECHNICAL INFORMATION, or PATENTED
TECHNOLOGY including, without limitation, toxicological evaluations, performed
by, or on behalf of, A&B, without payment or limitation, in the development,
manufacture, use, approval, qualification, or sale of the EXCLUDED PRODUCTS in
accordance with the terms and conditions of the A&B License Agreement.
5.9 AMBI agrees to hold information or data received from A&B in
accordance with paragraphs 5.7 or 5.8 as A&B's PROPRIETARY INFORMATION in
accordance with the provisions of the A&B License Agreement. After any such
information is published,
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or otherwise becomes publicly available, such information will no longer be
considered A&B's PROPRIETARY INFORMATION.
6 CONFIDENTIALITY
6.1 A&B recognizes that AMBI's PROPRIETARY INFORMATION is critical to the
business of AMBI and that AMBI would not enter into this Agreement without
assurance that such PROPRIETARY INFORMATION and the value thereof will be
protected as provided in this Section 6 and elsewhere in this Agreement.
Accordingly, A&B agrees as follows:
6.2 A&B shall hold AMBI's PROPRIETARY INFORMATION in confidence and to
take all precautions with respect thereto as A&B employs with respect to its own
confidential materials.
6.3 A&B shall not divulge, release, disseminate, or otherwise disclose any
PROPRIETARY INFORMATION, or any information derived therefrom, to any third
party, except as permitted under and in accordance with paragraph 2.2.
6.4 Notwithstanding the foregoing, the preceding covenants shall not apply
to any PROPRIETARY INFORMATION which A&B can establish:
6.4.1 Is in or (through no improper action or inaction by the A&B,
its agents or employees) enters the public domain;
6.4.2 Was rightfully in A&B's possession or known by it prior to
receipt from AMBI;
6.4.3 Was rightfully disclosed to A&B by a third party without
restriction, however, AMBI considers all
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previous transfers of PROPRIETARY INFORMATION from AMBI to A&B to have
been confidential; or
6.4.4 Was independently developed by A&B without access to or use of
any of AMBI's PROPRIETARY INFORMATION.
6.5 Immediately upon termination of A&B's license under paragraph 7.3, A&B
will turn over to AMBI all documents or media containing any PROPRIETARY
INFORMATION and any and all copies or extracts thereof and will make no further
use of any kind of any of AMBI's PROPRIETARY INFORMATION.
6.6 A&B acknowledges and agrees that due to the unique nature of AMBI's
PROPRIETARY INFORMATION, there can be no adequate remedy at law for any breach
of its obligations hereunder, that any such breach may result in irreparable
harm to AMBI and therefore, that upon any such breach or any threat thereof,
AMBI shall be entitled to appropriate equitable relief in addition to whatever
remedies it might have at law.
7 TERM AND TERMINATION
7.1 This Agreement will remain in effect unless terminated pursuant to
paragraph 7.2
7.2 If a party intentionally, willfully, or through its gross negligence,
materially breaches a material provision of this Agreement, the other party may
terminate this Agreement upon 60 days prior written notice unless the breach is
cured within such period or, if the breach cannot reasonably be so cured,
diligent efforts to effect such cure are commenced during that period and are
continued in a diligent manner until the cure is completed, which shall be
within a reasonable time.
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7.3 In the event of any termination of this Agreement due to a breach by
A&B under paragraph 7.2, the rights and licenses granted A&B under this
Agreement, including all sublicenses, shall terminate but A&B's obligations
under Section 6, as well as obligations imposed on A&B's sublicensees under
paragraph 2.2, to maintain the confidentiality of AMBI's PROPRIETARY INFORMATION
and TECHNICAL INFORMATION shall survive such termination for a period of five
(5) years thereafter; and further provided that if the termination is on account
of a breach by AMBI, the rights and licenses granted A&B in Section 2, and
disclosures made or sublicenses granted by A&B in accordance with this
Agreement, will continue for all PROPRIETARY INFORMATION, PATENTED TECHNOLOGY,
and TECHNICAL INFORMATION licensed as of the termination date, provided that any
such disclosure or sublicense, according to its terms, (i) was properly granted,
(ii) AMBI will have no further obligation thereunder, (iii) all the restrictions
and limitations of this Agreement shall continue to apply to such disclosure or
sublicense as though this Agreement continued in effect, and (iv) AMBI shall be
entitled to require A&B to terminate such disclosures or sublicenses on the same
basis as is provided herein for termination of this Agreement.
7.4 Neither party shall incur any liability whatsoever for any damage,
loss or expenses of any kind suffered or incurred by the other arising from or
incident to any termination of this Agreement (or any part thereof) other than
that provided for in paragraph 6.7.
8 REPRESENTATIONS AND WARRANTIES
8.1 AMBI represents and warrants that it has full power, authority and
legal right to enter into and perform this Agreement and to grant to A&B the
rights and licenses set forth herein; that the execution, delivery and
performance of this
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Agreement have been duly authorized by all necessary corporate action on its
part; and that the execution, delivery and performance of this Agreement do not
contravene any law, governmental rule, regulation or order binding on AMBI or
contravene its charter or by-laws or any material indenture, mortgage or
contract or other agreement to which it is a party or by which it is bound and
which could reasonably be expected to have a material adverse effect on the
ability of AMBI to fulfill its obligations under the Agreement.
8.2 A&B represents and warrants that it has full power, authority and
legal right to enter into and perform this Agreement; that the execution,
delivery and performance of this Agreement have been duly authorized by all
necessary corporate action on its part; and that the execution, delivery and
performance of this Agreement do not contravene any law, governmental rule,
regulation or order binding on A&B or contravene its charter or by-laws or any
material indenture, mortgage or contract or other agreement to which it is a
party or by which it is bound and which could reasonably be expected to have a
material adverse effect on the ability of A&B to fulfill its obligations under
the Agreement.
8.3 AMBI represents and warrants that AMBI owns all right, title and
interest in and to the PROPRIETARY INFORMATION and PATENTED TECHNOLOGY and that
the possession and use of the PROPRIETARY INFORMATION and PATENTED TECHNOLOGY
does not infringe any existent patent, known trade secret, or other intellectual
property right of any third party. The warranty provided by this Section 8 does
not extend to claims based on modifications to the PROPRIETARY INFORMATION and
PATENTED TECHNOLOGY by any party other than AMBI nor to any use by A&B in a
manner inconsistent with this Agreement.
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9 INFRINGEMENT MATTERS
9.1 In the event that any claim of infringement arises from A&B's use of
the PROPRIETARY INFORMATION and PATENTED TECHNOLOGY in the manufacture of the
LICENSED PRODUCTS and licensed as of the date of this Agreement, AMBI will be
solely responsible for expenses incurred in defending or settling any such
action. In the event A&B is notified of any such claim of infringement, A&B must
give written notice to AMBI within ten (10) days of such notice for this
paragraph to be operative.
9.2 In the event that any claim of infringement arises from A&B's use of
the PROPRIETARY INFORMATION and PATENTED TECHNOLOGY in the manufacture of the
LICENSED PRODUCTS, A&B will cooperate in AMBI's defense of any such action by
making its records and personnel reasonably available at times, places, and in a
manner mutually acceptable to the parties.
10 MISCELLANEOUS
10.1 INCIDENTAL AND CONSEQUENTIAL DAMAGES - EXCEPT AS OTHERWISE SET FORTH
IN SECTION 9, NEITHER PARTY WILL BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE,
STRICT LIABILITY OR OTHER THEORY FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES
WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT. THIS PARAGRAPH SHALL NOT
BE READ OR INTERPRETED TO EXCLUDE, RESTRICT, OR LIMIT EITHER PARTY'S LIABILITY
FOR DEATH OR PERSONAL INJURY RESULTING FROM ITS NEGLIGENCE.
10.2 Independent Contractors - The parties are independent contractors and
not partners, joint venturers or otherwise affiliated and neither has any right
or authority to bind the other in any way.
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10.3 Assignment - The rights and obligations of the parties under this
Agreement, may be assigned or transferred to affiliates or subsidiaries in which
a party maintains a controlling interest, which, with a party, are both under
the common control of a third party (e.g. Xxxxx Xxxxx), or to successors to the
parties' business interests by the sale or merger of substantially all of A&B's
assets relating to the LICENSED PRODUCTS or by the sale or merger of
substantially all of AMBI's assets relating to the EXCLUDED PRODUCTS.
10.4 Amendment and Waiver - Except as otherwise expressly provided herein,
any provision of this Agreement may be amended and the observance of any
provision of this Agreement may be waived (either generally or any particular
instance and either retroactively or prospectively) only with the written
consent of the parties, such amendments and waivers not to be unreasonably
refused.
10.5 Resolution of Disputes.
10.5.1 Negotiation Between Executives - The parties shall attempt in
good faith to resolve any dispute arising out of or relating to this
Agreement, or the breach, termination or validity thereof, by negotiations
between executives who have authority to settle the controversy. Any party
may give the other party written notice of any dispute not resolved in the
normal course of business. Within 20 days after delivery of such notice,
executives of both parties shall meet at a mutually acceptable time and
place, and thereafter as often as they reasonably deem necessary, to
exchange relevant information and to attempt to resolve the dispute. If
the matter has not been resolved within 60 days of the disputing party's
notice, or if the parties fail to meet within 20 days, either party may
initiate arbitration of the controversy or claim as provided hereinafter.
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If a negotiator intends to be accompanied at a meeting by an
attorney, the other negotiator shall be given at least three working days'
notice of such intention and may also be accompanied by an attorney. All
negotiations pursuant to this clause are confidential and shall be treated
as compromise and settlement negotiations for purposes of the Federal
Rules of Evidence and state rules of evidence.
10.5.2 Arbitration - If a dispute arising out of or relating to this
Agreement, or the breach, termination or validity thereof, has not been
resolved by negotiation as provided herein, it shall be settled by
arbitration in accordance with the Center for Public Resources Institute
for Dispute Resolution Rules for Non-Administered Arbitration of Business
Disputes. The arbitration shall take place in New York City, New York,
shall be governed by the United States Arbitration Act, 9 U.S.C. Sections
1-16, and judgment upon the award rendered by the arbitrator may be
entered by any court having jurisdiction thereof.]
10.6 Governing Law and Legal Actions - This Agreement shall be governed by
and construed under the laws of the State of New York and the United States
without regard to conflicts of laws provisions thereof and without regard to the
United Nations Convention on Contracts for the International Sale of Goods.
10.7 Jurisdiction and Venue - The parties agree not to contest personal
jurisdiction and further agree that any action initiated relating to this
Agreement shall be filed in the United States District Court for the Southern
District of New York.
10.8 Headings - Headings and captions are for convenience only and are not
to be used in the interpretation of this Agreement.
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10.9 Notices - Notice under this Agreement shall be sufficient only if
personally delivered, delivered by a major commercial rapid delivery courier
service, or mailed by certified or registered mail, return receipt requested to
a party at its addresses set forth in the signature block below or as amended by
notice pursuant to this subsection.
10.10 Entire Agreement - This Agreement supersedes all proposals, oral or
written, all negotiations, conversations, or discussions between or among the
parties relating to the subject matter of this Agreement and all past dealing or
industry custom.
10.11 WARRANTY DISCLAIMER - EXCEPT AS OTHERWISE SET FORTH HEREIN, AMBI
MAKES NO WARRANTY WITH RESPECT TO ANY TECHNOLOGY, GOODS, SERVICES, RIGHTS OR
OTHER SUBJECT MATTER OF THIS AGREEMENT AND HEREBY DISCLAIMS WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
10.12 Force Majeure - Neither party hereto shall be responsible for any
failure to perform its obligations under this Agreement if such failure is
caused by acts of God, war, strikes, revolutions, lack or failure of
transportation facilities, laws or governmental regulations or other causes
which are beyond the reasonable control of such party. Obligations hereunder,
however, shall in no event be excused but shall be suspended only until the
cessation of any cause of such failure. In the event that such force majeure
should obstruct performance of this Agreement for more than six (6) months, the
parties hereto shall consult with each other to determine whether this Agreement
should be modified. The party facing an event of force majeure shall use its
best endeavors in order to remedy that situation as well as to minimize its
effects. A case of force majeure shall be notified to the other party by telex
or telefax within five (5) days after its occurrence and shall be confirmed by a
letter.
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10.13 Severability - If any provision of this Agreement is held illegal,
invalid or unenforceable by a court of competent jurisdiction, that provision
will be limited or eliminated to the minimum extent necessary so that this
Agreement shall otherwise remain in full force and effect and enforceable.
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LICENSEE:
XXXXX & XXXXXXX, LIMITED
By: ______________________________
Xxxxxxxx Xxxxx
Title: Lawful Attorney
Address: Xxxxx & Xxxxxxx Limited
00 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxx
XX0 0XX
Xxxxxxx
Attn: Dr. Xxxxxx Xxxxx
With Copy: Xxxxx Xxxxx & Co. Ltd.
0 Xxxxxx Xxxxxx
Xxxxxx, XXX 0000, Xxxxxxxxx
Attn: The Company Secretary
Fax: 00 0 0000 0000
LICENSOR:
APPLIED MICROBIOLOGY, INC.
By: ______________________________
Xxxxxxxx Xxxxx
Title: Vice President
Address: Applied Microbiology, Inc.
Xxx Xxx Xxxx Xxxxx Xxxx
Xxxxxxxxx, XX 00000
U.S.A.
Attn: Xxxxxxxx Xxxxx, Esq.
With Copy: Xxxxxxx, Phleger & Xxxxxxxx
LLP
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxxxxx,
Esq.
Fax: (000) 000-0000
21
EXHIBIT A-1
LICENSED PRODUCTS
NISIN PREPARATIONS for incorporation into LICENSED PRODUCTS
Food Additives for food preservation
Food Preservatives
Food Preservation Methods
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EXHIBIT A-2
EXCLUDED PRODUCTS
Pharmaceutical Products
Animal Healthcare Products
Deodorant Products
Cosmetic Preservatives
Hygiene Products
Environmental Sanitizers
NISIN PREPARATIONS for incorporation in EXCLUDED PRODUCTS
23
