RESEARCH AND DEVELOPMENT AGREEMENT
THIS RESEARCH AND DEVELOPMENT AGREEMENT (this "Agreement") is made
this 14th day of November 2011 (the "Agreement Date") by and between
SCIENTIFIC BIOPROCESSING, INC., a Delaware corporation (the "Company"),
a wholly owned subsidiary of SCIENTIFIC INDUSTRIES, INC., a Delaware
corporation ("SI") and BIODOX R&D CORPORATION, a Massachusetts
corporation (formerly Fluorometrix Corporation) ("Developer"). The
Company and Developer are sometimes collectively referred to herein as
the "parties" and each individually as a "party". Certain capitalized
terms used, but not defined in the body of this Agreement, shall have
the meanings given such terms in Section 14 of this Agreement.
WHEREAS, the Company is a party to an Asset Purchase Agreement of
even date herewith with SI and Developer (the "APA"), an entity in which
Xx. Xxxxxx X. Xxxxxxx ("Qualitz") is a promoter, officer, director and
the owner of at least [__]% of its outstanding shares of voting stock
and has extensive knowledge and expertise in the area of Bioprocessing
and the patents and licenses as set forth in the APA; and
WHEREAS, the parties desire to enter into this Agreement pursuant to
which Developer will develop certain Bioprocessing products and other
related products on behalf of the Company under the terms and conditions
set forth hereunder.
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants contained herein and other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties
hereby agree as follows:
1. Development Program; Payments; Reports.
1.1. Development Program. Under the "Development Program",
Developer agrees to perform the research and development program for
the exclusive benefit of the Company and the Company's Affiliates with
respect to the list of Projects on Exhibit A during this Agreement
(collectively, "Projects"), as may be updated and/or amended from
time-to-time by the Company with the consent of the Developer, which
consent may not be unreasonably withheld. The Projects shall be
developed in accordance with detailed project deliverables to be
supplied to Developer by the Company (the "Project Deliverables").
The initial set of Project Deliverables are attached as Exhibit B,
and the Company shall supply updated sets of Project Deliverables,
in each instance subject to the consent of the Developer, which
consent may not be unreasonably withheld, on a quarterly basis
thereafter at least five (5) days prior to such next quarter, with
the first such quarter ending December 31, 2011, and which shall
identify the project objectives for development by the end of the
next quarter. All activities performed by or on behalf of the
Company or Developer relating to the Development Program shall be
for the exclusive benefit of the Company and the Company's
Affiliates.
1.2. Development Efforts. Developer hereby agrees to
complete the development of the Projects no later than the respective
development completion dates set forth in the then-current Development
Program as set forth on the applicable Exhibits attached hereto.
Developer shall devote sufficient resources as is necessary to develop
each Project and on the timetables set forth in the Development
Program. Developer agrees to provide the services in connection with
the Development Program with the highest degree of professional care
and skill, including by complying with any and all policies and
standards of the Company. Developer shall possess the requisite skill,
experience, knowledge, personnel, equipment and facilities necessary to
develop the Projects and fulfill its other obligations under this
Agreement. Developer shall comply with all applicable Laws in which
Developer is performing services under the Development Program, act
in the best interests of the Company, and cooperate in a reasonable
manner with the Company in connection with the performance of the
Development Program. Developer shall ensure that Developer and all
Developer Persons are subject to no conflicting obligations with
respect to discoveries, confidentiality or non-competition that could
affect the development of Projects for the Company or the performance
by Developer of its obligations under this Agreement. The Company
agrees to reasonably cooperate with and, upon request, provide
information and assistance to Developer as described in the Development
Program.
1.3. Payments. In full consideration for the research and
development work performed by Developer on behalf of the Company under
this Agreement during the Term and for any related assignments or
licenses received or granted after the date hereof, the Company shall
pay to Developer a monthly fee equal to fourteen thousand dollars
($14,000) (the "Monthly Fee"). All payments shall be in US dollars.
The Company shall remit payment to Developer no later than ten (10)
days following each monthly accrual period. For a partial month
worked in the event of an earlier termination of this Agreement, the
base monthly fee shall be prorated based on the number of business
days worked by Developer during the month divided by twenty (20).
Notwithstanding the foregoing, the Company's obligation to pay the
Monthly Fee is contingent upon delivery and acceptance of the Projects
listed on Exhibit A in accordance Section 1.4.
1.4. Meetings; Reports.
(a) Personnel from each party will hold development
review meetings at mutually convenient locations, or by video or
teleconference, as may be reasonably requested from time-to-time
by either of the parties, but in any event no less frequently than
one (1) meeting per month during this Agreement. At such meetings,
the parties shall review the progress of the development of each
Project as against the Development Program and the Project
Deliverables. In view of the development results, the Company may
revise the Project Deliverables during the development review
meetings with the consent of the Developer which may not be
unreasonably withheld.
(b) Within fifteen (15) days following the end of each
quarterly period during this Agreement, with the first such period
being the quarter ended December 31, 2011 (each a "Reporting Period"),
the Company will provide a "Progress Report" in writing to Developer
as to the status of development of each Project listed for development
in the immediately prior Progress Report. If, beginning with the
Progress Report delivered with respect to the quarter ending March
31, 2012 and for each Progress Report delivered thereafter, the number
of Projects that have not been completed and delivered to the Company
("Uncompleted Projects"), in the reasonable determination of the
Company, is more than twenty-five percent (25%) of the total number
of Projects to be completed by Developer and to be delivered to the
Company by the end of the period covered by the Progress Report, the
Developer shall devote its full resources to the completion of the
Uncompleted Projects and the Company may suspend its payment
obligations under Section 1.3 hereof. If such Uncompleted Projects
continue for two consecutive quarters, the Company will suspend its
payment obligations under Section 1.3.
(c) If Developer causes the number of Uncompleted
Projects to represent less than twenty-five percent (25%) of the total
number of Projects to be completed by Developer and accepted by the
Company (a "Cure"), which shall be in the Company's reasonable
determination, the Company's payment obligations shall revive.
The Company shall also deliver to Developer within ten (10) days of
such Cure an amended set of Project Deliverables that will set forth
the Project objectives for the remainder of the applicable quarter.
If Developer fails to Cure the deficiency by the end of the second
quarter following the end of the quarter during which the deficiency
is noted, the Company may terminate this Agreement (except for
Sections 2, 4.3, 6, 8 and 9) immediately upon written notice to
Developer without any liability or other recourse to the Company.
(d) The Company shall also deliver a progress report
within thirty (30) days following the end of each anniversary of the
date of the Agreement (the "Annual Progress Report"). If the Annual
Progress Report discloses any Uncompleted Projects, Developer will
use its best efforts to complete and deliver to the Company the
Uncompleted Project or Projects by the end of the thirty-day period
thereafter subject to Section 1.4(e). If at the end of such
thirty-day period the number of Uncompleted Projects represents:
(i) More than fifty percent (50%) of the total Projects set
forth in the Annual Progress Report, the Company may effective upon
delivery of written notice to Developer terminate this Agreement
(except for Sections 2, 4.3, 6, 8 and 9) and the Developer shall
pay to the Company fifty thousand dollars ($50,000); or
(ii) at least twenty-five percent (25%) but not more than
fifty percent (50%) of the total Projects listed in the Annual
Progress Report, the Developer shall be obligated to pay the Company
twenty five thousand dollars ($25,000), which at Developer's option
may be credited to the Company's future payment obligations of like
amount, if any, under Section 1.3 hereof, and the Company will suspend
its payment obligations until the completion percentage of the
Uncompleted Projects is one-hundred percent (100%) upon which event
the Company's payment obligations shall revive; or
(iii) less than twenty-five percent (25%) of the total
Projects set forth in the Annual Progress Report, the monthly payment
obligation pursuant to Section 1.3 hereof shall be suspended until the
completion percentage is (i) at least ninety percent (90%) but less
than one-hundred percent (100%) upon which event the Company's payment
obligations shall revive at a rate equal to fifty (50%) percent of the
Company's previous payment obligations or (ii) one-hundred percent
(100%) upon which event the Company's payment obligations shall revive
in full.
If Developer fails to cause the completion percentage of the Uncompleted
Projects to be one-hundred percent (100%) within ninety (90) days upon
delivery of the Annual Progress Report, the Company may effective upon
delivery of written notice to Developer terminate this Agreement
(except for Sections 2, 4.3, 6, 8 and 9)
(e) If the failure of Developer to satisfy a percentage
of completion within any of the periods set forth in Section 1.4(d) is
solely due to a delay or failure by the Company of its obligations
hereunder or a force majeure factor beyond the control of the Developer
or the unavailability of a key component, the thirty day period shall
be extended by the period of the delay or failure.
(f) The determination by the Company as to the percent
completion of delivery of Projects hereunder shall be conclusive
unless within five (5) business days following transmittal of written
notice of such determination to Developer, the Company receives from
Developer written notice of Developer's disagreement as to such
determination. In such event, the parties shall use their best efforts
to resolve such disagreement. If a resolution is not effected by the
end of the tenth (10th) business day following confirmed delivery of
the notice of disagreement, the parties shall mutually appoint as an
independent expert to resolve such dispute a person with at least five
(5) years experience in research and development, and having a
reasonable familiarity with bioprocessing and bioprocess
instrumentation, to resolve such dispute. The expert shall resolve
all such disputes no later than the tenth business day after such
appointment by the parties. The parties shall cooperate in all
respects and in a prompt and diligence manner with any and all
requests for information by the expert. The parties acknowledge
and agree that the expert shall have full authority to resolve any
dispute under this Section 1.4, and all such determinations by the
expert shall be conclusive and binding on the parties upon receipt of
written notice of his, her or its determinations. The fees and
related costs of the expert shall be borne by the party whose
determination or objection was not sustained.
1.5. Supplies and Materials. All costs and other expenses
incurred by Developer on behalf of the Company under the Development
Program relating to prototypes, materials and other supplies shall
be borne or reimbursed by the Company; provided, however, that
Developer shall obtain the prior written consent of the Company
before incurring any out-of-pocket cost or expense greater than
one hundred dollars ($100), which consent shall not be unreasonably
withheld. Developer agrees that the Company shall own all such
materials and other supplies purchased by Developer on behalf of the
Company during this Agreement. Developer shall submit monthly
invoices under this subsection to the Company for reimbursement.
The invoices shall contain all of the applicable third-party vendor
invoices underlying the costs and expenses for which Developer seeks
reimbursement. Developer shall only be permitted to seek
reimbursement for the costs of the vendor invoices without surcharges
of any kind. The Company shall have the right to deny any
reimbursement in its sole discretion for any expense for which
Developer does not provide the Company with the underlying vendor
invoice in reasonable detail. The Company shall remit the permitted
reimbursement within thirty (30) days upon receipt of each invoice.
1.6. Facility. Developer shall be responsible for acquiring
and entering into a contract with respect to a laboratory facility,
subject to the Company's prior written consent, which shall not be
unreasonably withheld, within close proximity to the Technical
Engineering Research Center at the University of Maryland Baltimore
County and for the exclusive purpose of permitting Developer to meet
its obligations under this Agreement. During this Agreement, the
Company agrees to pay to Developer an amount up to one thousand
dollars ($1,000) per month to be applied by Developer to a lease,
rent or purchase of a facility (the "Facility
Reimbursement"). Developer may also apply the Facility
Reimbursement against utilities and other direct expenses with
respect to the facility, but excluding any brokerage or commission
fees. Developer shall use such laboratory facility during the
Term to meet its obligations under the Development Program.
Developer shall submit monthly invoices to the Company with
respect to the Facility Reimbursement. The Company shall remit
the reimbursement within thirty (30) days upon receipt of each
invoice.
1.7. Regulatory Approvals. The Company shall be responsible,
at the Company's sole expense, for completing all regulatory
registrations, approvals and submissions required in connection with
the products or other deliverables created or generated under the
Development Program. Developer agrees to notify the Company of any
item that it believes may have regulatory registerability, and to
cooperate with and, upon request, provide data, information and
assistance to the Company in obtaining regulatory concurrence or
approval for the sale and distribution of each product or other
deliverables created or generated under the Development Program.
2. Inventions; Ownership.
2.1. Inventions; Disclosure. For purposes of this Agreement,
"Inventions" shall include any and all inventions, ideas, improvements,
modifications, processes, devices, products, know-how, ideas, technologies,
computer hardware or software, concepts, designs, prototypes, samples,
models, technical information, drawings, specifications or the like,
whether or not patentable, that Developer or any Developer Person,
alone or jointly with others, may conceive, invent, produce or reduce
to practice during and with respect to a Patent Right (as defined in the
APA) or Development Program, which: (i) relate to the Projects or a
Patent Right; (ii) arise or result from any work performed under the
Development Program within the scope of the related patent; or (iii)
result from any access to Confidential Information or to any of the
Company's memoranda, notes, records, drawings, sketches, models, maps,
customer lists, research results, data, formulae, specifications,
inventions, processes, equipment or other materials. Developer agrees
to promptly disclose all Inventions to the Company in writing and in
full detail. Developer shall keep accurate and complete records of
all Inventions, which shall be the Company's exclusive property. All
such Inventions and any information with respect thereto shall be the
Company's Confidential Information within the meaning of, and shall be
subject to, Section 6.
2.2. Ownership.
(a) Developer irrevocably agrees that all products and
other deliverables that are created, developed or under-development
under this Agreement shall be the sole and exclusive property of the
Company. Further, Developer irrevocably agrees that all documentation,
including all notes, summaries, reports, and analyses related thereto,
developed or generated by Developer in connection with the Development
Program, and all results and data resulting from the conduct of the
Development Program shall be the sole and exclusive property of the
Company except for documentation developed by a Consultant independent
and beyond the scope of its engagement by the Developer. Developer
agrees to use its best efforts to correspondingly limit the engagement
of Consultants with respect to the Program Projects. Developer shall
maintain accurate and adequate books and records in
connection with the performance of the Development Program and in
reasonably sufficient detail and a scientific and professional
manner appropriate for regulatory purposes. The Company shall
have the right to inspect Developer's books and records pursuant
to Section 5.
(b) Developer hereby irrevocably assigns and transfers to
the Company and its successors and assigns, free and clear of all
Liens, all of its right, title and interest throughout the world in
and to all of the following (the "Assigned Rights"): (A) all
Inventions; (B) all Intellectual Property Rights, whether patentable
or not, that arise from or relate to the Inventions and/or the
Projects (the "Related IP"); and (C) all rights to income derived from
the Inventions and the Related IP, including the right to xxx for
infringement thereof and to recover all damages therefrom. Developer
hereby waives any and all moral rights that Developer has in copyrights,
including copyrighted works that exist now and will be made in the
future in and to the Assigned Rights.
(c) Developer represents and covenants that all Developer
Persons are and will be obligated under a binding written agreement to
assign to Developer or the Company, free and clear of all Liens, all
of their current and future right, title and interest throughout the
world in and to the Assigned Rights with respect to the Projects and
services and products developed or being researched or developed with
respect thereto.
3. Rights and Duties of the Company.
3.1. Patent Applications and Maintenance. The Company
shall have the exclusive right, but not the obligation, to file (in
the name of the appropriate inventor or inventors) and prosecute patent,
copyright or trademark applications world-wide with respect to any
intellectual property constituting a part of the Assigned Rights.
In the event the Company elects to file a patent application with
respect to any of the Assigned Rights on behalf of itself, an Affiliate
or licensor, it shall give prompt notice to Developer of each such
application and keep Developer reasonably advised regarding its
status and result. Developer agrees to execute, and to cause all
Developer Persons to execute, without charge any foreign or domestic
patent, copyright or trademark applications or assignments or similar
documents related to patent, copyright or trademark prosecution or
otherwise necessary or desirable, and to take all other actions
reasonably requested by the Company or required by Law (as defined
below) in order to file, prosecute, register, procure or assign rights
under such applications, that relate to the above assignment and the
obtaining of such patent, copyright or trademark rights, including
providing reasonable cooperation and assistance to the Company in
connection with such prosecution.
3.2. Infringement. The Company individually or on behalf
of its Affiliates and/or licensors shall have the exclusive right,
but not the obligation, to defend or institute litigation in
connection with any alleged infringement relating to any patent or
other intellectual property right arising from this Agreement at its
own expense and solely for its own benefit. Developer agrees to
cooperate with the Company as reasonably requested by the Company or
required by Law in order to enforce any of such intellectual
property right, at the Company's expense, in any such litigation or
other dispute.
3.3. Authorization to the Company. In the event the
Company is unable, after reasonable effort, to secure Developer's
signature on any patent, copyright or other analogous
protection relating to the Assigned Rights for any reason whatsoever,
including, without limitation, because of physical or other
incapacity, Developer hereby irrevocably designates and appoints
the Company and its duly authorized officers and agents as its
agent and attorney-in-fact, to act for and on its behalf and stead
to execute and file any such application, applications or other
documents and to do all other lawfully permitted acts to further
the prosecution, issuance, and enforcement of letters patent,
copyright or other analogous rights or protections thereon with
the same legal force and effect as if executed by Developer.
Developer's obligation to assist the Company in obtaining and
enforcing patents and copyrights for the Assigned Rights in any
and all countries shall continue beyond the termination of
Developer's relationship with the Company, but the Company shall
compensate Developer at a reasonable rate after such termination
for time actually spent by Developer at the Company's request
on such assistance.
3.4. Limited License. The Company hereby grants to
Developer a temporary, fully paid-up, royalty free, world-wide,
non-exclusive, limited license (which shall not be sublicensable,
assignable or transferable in any manner whatsoever) ("Limited
License") solely to utilize the Assigned Rights and
Trademarks/Copyrights (as defined below) as are reasonably
necessary to enable Developer to fulfill its obligations on
behalf of the Company under this Agreement. Developer shall not
at any time, during or after the Term, do or cause to be done,
anything that could adversely affect the Company's (i) rights in
the Assigned Rights or (ii) rights in or the distinctiveness of
the Trademarks/Copyrights. Developer acknowledges that the
Company or the Company's Affiliates shall remain the sole and
exclusive owner of the Assigned Rights and Trademarks/Copyrights.
Nothing in this Agreement is intended to grant, or shall be
deemed to have the effect of granting, any right to Developer
or any other person to use any of the Assigned Rights or
Trademarks/Copyrights other than pursuant to the Limited License.
Any rights granted to Developer pursuant to this Section 3.4
shall terminate and be of no further force or effect upon the
expiration or termination of this Agreement. "Trademarks/Copyrights"
shall mean all trademarks (whether or not registered), trade names,
brand names, service marks, slogans, logos, copyrights, and trade
dress of the Company (together, in each case with any goodwill
associated therewith) relating to the Projects or their components.
4. Representations; Warranties; Covenants.
4.1. Each party, on behalf of itself, represents and warrants
to the other party that (i) such party is entering into this Agreement
voluntarily and each has been represented by the counsel of its
choosing in the negotiation and execution of this Agreement, (ii) such
party has the power, authority and authorization to enter into and to
perform all of the obligations under this Agreement, (iii) such party
jointly drafted and negotiated this Agreement with the assistance of
legal counsel for each party and that any ambiguity shall not be
construed against any party as the drafter of the Agreement, and (iv)
such party has read the entire Agreement, and is fully aware of its
legal effect.
4.2. Developer hereby represents, warrants and covenants to
the Company as follows: (i) Developer shall not in the course of its
performance under the Development Program, either directly or
indirectly, misappropriate any trade secrets or other Intellectual
Property Rights of any third party, (ii) the products or other
deliverables created or generated under the Development Program,
and their Exploitation, do not and will not incorporate or use
Intellectual Property Rights of a third party such
that the Company would need to obtain a license from such third
party in order to avoid infringement of such third party's
intellectual property, and (iii) Developer shall cooperate with
the Company in responding to all requests for information
from, and in making all required filings with, Governmental
Authorities in all cases in matters relating to the Projects.
4.3. Developer hereby covenants and agrees to cause Qualitz to
execute and deliver to the Company the Non-Competition Agreement in the
form attached hereto as Exhibit C. Developer acknowledges and agrees
that the effectiveness of this Agreement is, and binding nature of
the Company's payment obligations hereunder are, contingent upon the
execution and delivery to the Company of such non-competition
agreement by Qualitz and his subsequent compliance with the terms
and conditions therein.
5. Access to Facilities and Information. During the Term,
and subject to applicable Law, Developer and Developer's Affiliates
shall afford to the Company and its Affiliates reasonable access
during normal business hours, upon reasonable notice and in such manner
as will not unreasonably interfere with the conduct of their respective
businesses, to the facilities, properties, books, records, documents
and personnel having involvement with or relating to any Project, in
order that the Company may have the opportunity to make such reasonable
investigations as it shall desire of the Projects and such facilities,
properties, books, records, documents and personnel. Developer shall,
and shall cause its Affiliates and all Developer Persons to, cooperate
with any such investigation. Developer shall maintain all such
information and records created or generated under this Agreement for
a period ending the later of (i) five (5) years from the termination or
expiration of this Agreement or (ii) two (2) years after the date the
records are no longer required by the Company for supporting any
governmental approvals. Any Confidential Information (as defined below)
of Developer received by the Company or its Affiliates as a result of
such investigation shall be subject to the confidentiality obligations
set forth in Section 6 of this Agreement.
6. Confidentiality.
6.1. For purposes of this Agreement, "Confidential Information"
shall mean any and all any information of a confidential, non-public or
proprietary nature pertaining to the Company, or to the business,
operations, activities, products or services of the Company or any
of its Affiliates (whether or not reduced to writing or marked as
confidential, non-public or proprietary, and in any format or medium)
which has been or is hereafter disclosed or made available by or on
behalf of the Company to Developer with respect to or relating to (i)
the Company's Intellectual Property Rights, (ii) comparable information
that the Company may receive or has received from others who do
business with it, (iii) such proprietary information relating to
existing or contemplated products, services, designs, technology,
processes, technical data, engineering, techniques, methodologies and
concepts and any other information related thereto, (iv) such
proprietary information relating to business plans, sales or marketing
methods and customer lists or requirements, (v) the fact that the
parties are engaged in a business relationship, and (vi) any other
information or material relating to the business, operations or
activities of the Company which is not generally known to others
engaged in similar businesses or activities.
6.2. Developer shall hold Company's Confidential Information
in strict confidence and agrees that Developer shall take all necessary
steps during this Agreement, and in perpetuity
thereafter, to prevent the duplication or disclosure of any such
Confidential Information, other than duplication by or disclosure
to Developer Persons who, subject to the other provisions of
this Agreement, must have access to such Confidential Information
to perform such party's obligations hereunder, and who shall each
treat such Confidential Information as provided herein.
The obligations of Developer under this Section 6.2 will not
apply to information that Developer can demonstrate (i) at the time of
disclosure is generally available to the public or after disclosure
becomes generally available to the public through no breach of agreement
or other wrongful act, (ii) has been received from a third party without
restriction on disclosure and without breach of agreement or other
wrongful act, or (iii) is required to be disclosed by law or order of a
court of competent jurisdiction or regulatory authority, provided that
Developer shall furnish prompt written notice of such required disclosure
and reasonably cooperate with the Company, at the Company's cost and
expense, in any effort made by the Company to seek a protective order
or other appropriate protection of its Confidential Information.
6.3. Upon the expiration or termination of this Agreement,
Developer shall, upon request of the Company, promptly return to the
Company or destroy all Confidential Information disclosed to it hereunder,
including all copies thereof. If the Confidential Information is
destroyed pursuant to this Section 6.3, Developer shall have an officer
certify to the Company that the Confidential Information was destroyed.
6.4. Except as required by Law, Developer shall not, without
the prior written approval of the Company, (i) use the name of the
Company or any Affiliate of the other party in any publicity or
advertising or (ii) disclose any terms or conditions of this Agreement.
7. Term and Termination.
7.1. Term. This Agreement shall be effective as of the
Effective Date and, subject to earlier termination as provided herein,
shall continue in force for a period of two (2) years from the Agreement
Date (the "Initial Term"). The Company shall have three one (1) year
options to extend the Term (each, a "Renewal Term", and together with
the Initial Term, the "Term") upon not less than ninety (90) days
advance written notice to Developer prior to the expiration of
the end of the Term or then-current Renewal Term, as the case may be.
7.2. Termination.
(a) This Agreement may be terminated by either party:
(i) if the other party commits a material breach of any provision of
this Agreement and such breach continues uncured for a period of
thirty (30) days following written notice; or (ii) effective
immediately, if the other party files, or has filed against it, a
petition for voluntary or involuntary bankruptcy or pursuant to any
other insolvency Law or makes or seeks to make a general assignment
for the benefit of its creditors or applies for or consents to the
appointment of a trustee, receiver or custodian for its or a
substantial part of its property.
(b) This Agreement may be terminated by the Company
effective immediately: (i) upon ninety (90) days written notice to
Developer at any time subsequent to the Initial Term, in the event
that the Company reasonably determines in its sole discretion that
Developer subject to Section 1.4(e) has failed or will be unable to
satisfactorily meet its
obligations under the Development Program
as set forth on Exhibit A; (ii) effective immediately, if Qualitz
fails to own at least 35% of the voting shares and beneficial
interests in Developer; (iii) effective immediately, if Qualitz
ceases to carry out and be responsible for the day-to-day business
operations of Developer unless the Company consents in writing to a
replacement who has similar skills, education, experience and
capabilities; (iv) effective immediately, if Qualitz becomes
disabled for any reason and for any length of time, unless the
Company consents in writing to a replacement who has similar
skills, education, experience and capabilities; or (v) upon thirty
(30) days written notice to Developer, in the event the Company
becomes a party to any claim, action or proceeding, or receives a
threatened claim, action or proceeding, relating to or arising
from the allegation that the products or other deliverables created
or generated under the Development Program, or their Exploitation
thereof, infringe, violate or misappropriate any Intellectual
Property Rights of any third party.
7.3. Effect of Termination. On the date of termination of
this Agreement (and not limiting any other obligation or restriction
as set forth herein), the Company shall pay to Developer its
compensation as applicable then due and/or earned, but not yet paid
through the date of termination.
8. Indemnification.
8.1. By Developer. Developer shall defend, indemnify and
hold harmless the Company and its Affiliates, and their respective
subsidiaries, directors, officers, employees, agents and
representatives (individually and collectively, the "Company
Indemnified Parties") from and against any and all damages,
liabilities, claims, costs, charges, judgments and expenses
(including reasonable attorneys' fees and expenses) (collectively
"Losses") that may be sustained, suffered or incurred by the Company
Indemnified Parties to the extent arising from or by reason of:
(i) the negligence or willful misconduct of Developer; (ii) the
breach by Developer of any warranty, representation, covenant or
agreement made by Developer in this Agreement; (iii) a claim of
any Lien made by a third party against the Assigned Rights; or
(iv) any claim, action or proceeding, or threatened claim, action
or proceeding, relating to or arising from the allegation that
the products or other deliverables created or generated under the
Development Program, or their Exploitation thereof, infringe, violate
or misappropriate any Intellectual Property Rights of any third party;
provided, however, that Developer shall not be responsible for any
Loss to the extent that such Loss arises out of or is related to
the negligence or willful misconduct of the Company.
8.2. By the Company. The Company shall defend, indemnify
and hold harmless Developer and its Affiliates, and their respective
subsidiaries, directors, officers, employees, agents and
representatives (individually and collectively, the "Developer
Indemnified Parties") from and against any and all Losses, that
may be sustained, suffered or incurred by the Developer Indemnified
Parties to the extent arising from or by reason of: (i) the negligence
or willful misconduct of the Company; or (ii) the breach by the
Company of any warranty, representation, covenant or agreement made
by the Company in this Agreement. The Company shall not be
responsible for any Loss to the extent that such Loss arises out
of or is related to the negligence or willful misconduct of
Developer.
8.3. Procedure for Indemnification. In the event of a claim
subject to the indemnification provisions stated above, the indemnified
party shall give prompt notice to indemnifying party, provided that
the failure to give such notice shall not affect any indemnified
party's rights to indemnification under this Agreement unless such
failure shall materially prejudice the indemnifying party's ability
to defend such claim. The indemnifying party (at its expense) shall
assume the defense of any such claim against the indemnified party.
If the indemnifying party fails to assume the defense of any such claim
within thirty (30) days after it receives the above notice, the
indemnified party may assume such defense with counsel of its choice
and at the expense of the indemnifying party. The indemnified party
shall have the right to participate in (but not control) the defense
of any such claim defended by the indemnifying party hereunder and to
retain its own counsel in connection with such claim, but the fees and
expenses of such counsel shall be at the indemnified party's expense;
provided, however, that the indemnifying party shall bear the fees and
expenses as incurred of counsel to the indemnified party if
representation of the indemnifying party and the indemnified party
by the same counsel would be reasonably likely to create a conflict.
No party shall be liable for any settlement by which it is effected
without its written consent, which consent shall not be unreasonably
withheld or delayed. The indemnified party shall fully cooperate with
the indemnifying party in the defense of any matter subject to
indemnification. The indemnifying party shall not, except with
the written consent of the indemnified party, consent to entry of any
judgment or enter into any settlement that does not include as an
unconditional term thereof the giving by the person asserting such
claim of an unconditional release from all liability with respect to
such claim to all indemnified parties (i.e., the Company Indemnified
Parties or Developer Indemnified Parties, as the case may be).
9. Non-Compete.
9.1. Definitions. For purposes of this Agreement:
(a) "Business" means the activities or businesses
developing, researching, producing, selling, distributing, licensing,
or marketing of any product, system, process or method which is or
relates to (i) a bioreactor system, disposable reactor, bag reactor,
fermentation system, shaker and other flash sensing system, including
but not limited to, CELLPHAST or CELLSTATION products within the
coverage of, or subject to, the patents, licenses and sublicenses held
by the Company, including those listed in the Schedules to this
Agreement or the APA; (ii) products, methods and processes related to
catalytic research instruments; or (iii) components, laboratory equipment
products or items or other biotech products or items which the Company,
SI, or any of their subsidiaries intends to develop, produce, sell or
license.
(b) "Non-Competition Area" means the United States, its
territories and other jurisdictions which have granted or are
considering the grant of an application for a patent with respect to
a Business item to or on behalf of the Company, SI, their respective
Affiliates or direct or indirect subsidiaries (collectively, the "SI
Group").
(c) "Non-Competition Period" shall mean the period
commencing on the Closing Date and ending on the fifth anniversary
of the termination of this Agreement.
9.2. Covenant. Developer agrees that during the Non-
Competition Period neither Developer nor any of its Affiliates or
Developer Persons will, directly or indirectly:
(a) perform in the Non-Competition Area other than on
behalf of a member of the SI Group services or otherwise act in any
capacity for, or otherwise be engaged by or have any financial
interest in or affiliation with, any individual corporation,
partnership or any other person involved in or connected with any
business which is the same or similar to the Business conducted by
a member of the SI Group; provided, however, that nothing contained
in this Paragraph 9.2(a) shall prevent Developer from owning or
purchasing as an investment securities of any corporation whose
securities are regularly traded on any national securities
exchange or in the over-the-counter market which securities along
with securities held at or after the purchase by Developer, including
its Affiliates, at the time of the ownership or purchase by Developer
is an amount which is less than 1% of the beneficial interests and
voting interests outstanding of that corporation; or
(b) recruit, solicit or otherwise induce or influence any
employee of a member of the SI Group or a sales agent, joint venturer,
consultant, lessor, supplier, agent, buyer or any other person that
was any of the foregoing or has or had during the Non-Competition
Period or during the one year period initially preceding the
commencement of the Non-Competition Period a business relationship
with a member of the SI Group, to discontinue, reduce or adversely
modify such employment, agency or business relationship with a SI
Group member or employ or seek to employ or cause any person to
employ or seek to employ any person or agent who is employed or
retained by a member of SI Group.
9.3. Invention Applications. If, at any time, Developer, any
Developer Affiliate, or anyone acting by or on behalf of (or as an
assignee of) Developer or any Developer Affiliate, files an application
for a patent, a utility model, an industrial design or a certificate of
invention, and at least one claim of such patent application or other
enforceable right involves or relates to a product, device, process,
system or method to which the non-competition provisions of Section
9.2 of this Agreement apply (the "Invention Application"), then
Developer or such other person (as applicable) shall be deemed to
have assigned to the Company such Invention Application. The
Invention Application shall include any continuation,
continuation-in-part or divisional application thereof, any patent,
utility model, industrial design and certificate of invention
issuing thereon and any reissue, reexamination, renewal or extension
thereof, and any patent of addition based on any such patent, all
foreign counterparts of any of the foregoing, and all discoveries or
inventions disclosed in any of the foregoing applications or patents,
utility models, industrial designs and certificates of invention
(whether or not embodied within any claim of an issued patent,
utility model, industrial design or certificate of invention) and
any related know-how. Such Invention Application shall become part
of the Assigned Rights without payment of any additional consideration
by the Company, and
(a) Developer agrees to execute and deliver (and to
cause other persons having an interest in such Invention Application
or related Patent Rights (as such term is defined in the Asset
Purchase Agreement) or know-how to execute and deliver) such patent
assignments and other instruments of transfer as the Company may
reasonably request to accomplish the foregoing assignment of the
Invention Application;
(b) Developer will provide to the Company a copy of
each Invention Application and prosecution history promptly after
the Invention Application is first filed;
and
(c) In view of the fact that a patent application may
be filed well after the end of the Term with respect to inventions
that are conceived and reduced to practice prior to the end of the
Term, Developer's obligations under this Section 9.3 shall survive
indefinitely.
10. Background License. Developer hereby grants a worldwide,
perpetual, fully paid-up, royalty-free, non-exclusive right and
license of Developer's Intellectual Property Rights to the Company
and its customers and Affiliates to the extent reasonably necessary
in order for the Company and its customers and Affiliates to Exploit
any of the products or other deliverables created or generated under
the Development Program.
11. Insurance. At all times during the Term, Developer at its
cost shall procure and maintain with insurers reasonably acceptable
to the Company on an occurrence (non-claims made) basis (i) workers'
compensation insurance, (ii) comprehensive general liability insurance,
including products/completed operations liability with a vendor's
broad form endorsement, with a minimum liability coverage of One
Million Dollars ($1,000,000) per occurrence, and (iii) employer's
liability insurance for personal injury and property damage with a
minimum liability coverage of One Million Dollars ($1,000,000).
Developer shall provide certificates of insurance prior to the
Agreement Date and from time to time thereafter upon the Company's
request specifying the dates such coverage expires and providing
further that no policy will be canceled or amended to reduce the
amount of coverage or to eliminate coverage without thirty (30)
days' prior written notice to the Company.
12. Consulting Agreements.
12.1. Development Work.
(a) Developer and the Company shall agree on a standard
form of consulting agreement to be used by Developer for Developer's
consultants during the Term which agreement will, inter alia, provide
for the Company's ownership as provided in Section 2.2. Developer
agrees that any material change to the standard form of consulting
agreement after the initial approval of the standard form of
consulting agreement by the Company will require the additional written
consent of the Company. Developer further agrees that if, for any
particular consultant, Developer proposes (A) not to use the standard
form of consulting agreement or (B) to modify the standard form of
consulting agreement, including by adding any new appendix, exhibit
or other document to such consulting agreement or by modifying the
standard form of any appendix, exhibit or other document constituting
part of the standard form of consulting agreement, then such non-use,
modification, addition or other change shall require the prior
written consent of the Company. The parties agree that variations
in the amount of compensation due to each consultant or the description
of the work to be performed by each consultant shall not constitute
material changes for which Developer shall need to obtain the Company's
written consent.
(b) During the Term, Developer shall inform the Company
if a consultant is to be retained or hired in furtherance of services
or activities to be performed by Developer under this Agreement, and
the identity of such consultant.
12.2. General. Developer agrees that it is and will be solely
responsible for all costs and expenses under any current or future
consulting agreement. Developer further represents and warrants that
all current consulting agreements contain, and covenants and agrees
that all future consulting agreements will contain, provisions
assigning to Developer or the Company all intellectual property that
is created, conceived, or developed hereunder in performance of such
consulting agreements.
13. Use of Subcontractors and Agents. To the extent that
Developer should at any time use a subcontractor or non-employee agent
to perform any services, undertake any tasks or otherwise fulfill any
obligations under this Agreement, Developer agrees to ensure that all
representations and warranties and all covenants that would be
applicable to Developer under this Agreement, if the Developer were to
perform the service, undertake the task or fulfill the obligation
itself, shall be binding on each such agent or subcontractor, and
Developer shall guaranty the performance of each such agent or
subcontractor. Developer shall cause the Company to be made a third
party beneficiary of all relevant agreements with agents and
subcontractors so that the Company shall have the right (but not the
obligation) to enforce any such representation, warranty or covenant
directly as against such agent or subcontractor. Developer shall
maintain and make available to the Company upon request a list of
all subcontractors and agents used in connection with the performance
of Developer's obligations under this Agreement.
14. Definitions. In addition to the terms defined elsewhere
in this Agreement, including the recitals, the following terms, when
used herein, shall have the following meanings:
14.1. "Affiliate" shall mean a person that directly or
indirectly, through one or more intermediaries, controls or is
controlled by, or is under common control with, the person specified.
For purposes of this definition, the terms "control," "controlled by"
and "under common control with" shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the
management or policies of such person and, in the case of an entity,
shall require (i) in the case of a corporate entity, direct or indirect
ownership of at least a majority of the securities having the right
to vote for the election of directors, and (ii) in the case of a
non-corporate entity, direct or indirect ownership of at least a
majority of the equity interests with the power to direct the
management and policies of such non-corporate entity.
14.2. "Bioprocessing" shall mean the items, products,
systems, methods and processes employing the bioprocessing technology.
14.3. "Developer Persons" shall mean Qualitz, all Affiliates
of Developer and the respective employees, agents, contractors,
investigators, consultants, representatives and advisers of Developer
and all Affiliates of Developer who are or will be involved in the
performance by Developer of any of its obligations under this Agreement.
14.4. "Exploit" or "Exploitation" shall mean, with respect
to any product, invention, system, process, intellectual property or
asset, to disclose, manufacture, produce, import, use,
operate, research, design, develop, perform clinical or other
testing, perform quality assurance testing, commercialize, revise,
repair, register, maintain, modify, enhance, upgrade, prepare
derivative works, seek regulatory concurrences or approvals,
package, label, improve, formulate, export, transport, distribute,
promote, market, advertise, sell, have sold, offer for sale or
license such product, invention, intellectual property or asset,
or to have another person do any of the same.
14.5. "Governmental Authority" shall mean any nation,
territory or government, foreign, domestic or multinational, any
state, local or other political subdivision thereof, and any
bureau, court, tribunal, board, commission, department, agency
or other entity exercising executive, legislative, judicial,
regulatory or administrative functions of government, including
all taxing authorities and all United States and foreign bodies
and all other entities exercising regulatory authority over the
products or other deliverables created or generated under the
Development Program.
14.6. "Intellectual Property Rights" shall mean any and
all proprietary rights, inventions, discoveries, trade secrets,
patents, copyrights, trademarks, service marks, know-how, associated
goodwill, moral rights, proprietary data or information, ideas,
processes, formulas, source and object codes, programs,
documentation, flow charts, design documents, other works of
authorship, improvements or enhancements, discoveries and any other
intellectual property right existing under the laws of any
Governmental Authority.
14.7. "Law" shall mean any federal, state, local, municipal,
international, multinational, foreign or other law, statute,
constitution, principle of common law, resolution, ordinance, code,
order, edict, decree, rule, regulation, guideline, ruling requirement
or other pronouncement issued, enacted, adopted, promulgated,
implemented or otherwise put into effect by or under the authority
of any Governmental Authority.
14.8. "Lien" shall mean any interest, consensual or otherwise,
in property, whether real, personal or mixed, or assets, tangible or
intangible, securing an obligation owed to, or a claim by a third
person, or otherwise evidencing an interest of a person other than
the owner of the property or asset, whether such interest is based
on Law or contract, and including any security interest, security
title, lien, mortgage, recordation of abstract of judgment, deed of
trust, deed to secure debt, encumbrance, restriction, charge,
covenant, legal or equitable claim, exception, encroachment, easement,
right of way, license, permit, incorporeal hereditament, pledge,
conditional sale, option, trust (constructive or otherwise) or trust
receipt or a lease, consignment or bailment for security purposes or
other title exception affecting any property or asset.
14.9. "Person" shall mean an individual, corporation,
partnership, limited partnership, limited liability company,
unincorporated association, trust, joint venture, union or other
organization or entity, including a Governmental Authority.
15. Miscellaneous.
15.1. Amendment and Waiver. This Agreement may not be
amended or modified except by a written instrument signed by both
parties. No failure or delay on the part of any
party in exercising any right hereunder will operate as a waiver of
such right. No single or partial exercise of any right hereunder
shall preclude any further exercise of such right or the exercise of
any other right. No waiver of any breach of this Agreement shall
operate as a continuing waiver against any further breach. No waiver
of any right hereunder will be effective unless made in writing.
15.2. Independent Contractors. Developer is an independent
contractor engaged by the Company to engage in the Development Program.
Nothing in this Agreement shall make either party the legal
representative, agent, employee, owner or partner of the other nor shall
either party have the right or authority to assume, create or incur
any liability or obligation of any kind, express or implied, against,
in the name of or on behalf of, the other party.
15.3. No Third Party Beneficiaries. Except for Section 8
hereof, which is intended to create rights, benefits and remedies for
the Company Indemnified Parties and the Developer Indemnified Parties,
nothing herein, express or implied, is intended to or shall confer
upon any person other than the parties hereto any legal or equitable
right, benefit or remedy of any nature whatsoever under or by reason
of this Agreement.
15.4. Survival. All terms and provisions of this Agreement
intended to be observed and performed after the termination hereof,
including those set forth in Sections 2, 3, 4, 6, 8, 9, 10 and 11,
shall survive such termination and continue, thereafter, in full
force and effect.
15.5. Performance. Developer acknowledges that money
damages alone will not adequately compensate the Company for
Developer's breach of Sections 2, 4.3, 6 and 9, and, therefore,
agrees that in the event of such breach or threatened breach, in
addition to all other remedies available to the Company, at law, in
equity or otherwise, the Company shall be entitled, if warranted,
to an injunction restraining any such breach or threatened breach,
or a decree of specific performance, without posting any bond or
security. The remedy in this subsection is in addition to, and not
in lieu of, any other rights or remedies the Company may have.
15.6. Construction. Unless the context of this Agreement
clearly indicates otherwise: (i) the singular shall include the
plural, the plural shall include the singular, and the part shall
include the whole; (ii) references to one gender shall include all
genders; (iii) "or" has the inclusive meaning frequently identified
with the phrase "and/or"; (iv) "including" or "includes" has the
inclusive meaning frequently identified with the phrase "including
but not limited to"; and (v) references to "hereunder," "herein" and
"hereof" relate to this Agreement as a whole; articles, sections,
subsection, exhibit and schedule references are to this Agreement
unless otherwise specified. Any reference herein to any law or
agreement, including this Agreement, shall be deemed to include
such law or agreement as it may be modified, varied, amended or
supplemented from time to time. The headings contained in this
Agreement are solely for reference purposes and shall not affect
the meaning or interpretation of this Agreement.
15.7. Notices. Any notice required or permitted by
this Agreement shall be in writing and shall be (i) delivered
personally, effective on the date of delivery, (i) sent via
an internationally recognized express international courier
service, such as Federal Express or DHL, to be effective
three (3) business days following deposit, or (iii) sent by
facsimile to be effective on the date of confirmed transmission,
provided that a confirmation copy is sent no later than the
next business day via an internationally recognized express
international courier service, such as Federal Express or DHL.
Notices shall be addressed to the party concerned at the
address indicated below or at such other address as such party
may subsequently designate by like notice from time-to-time:
(a) if to Developer, to:
BioDox R&D Corporation
00 Xxxxxx Xxxx Xxxx
Xxxx, Xxxxxxxxxxxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxxx, President
Telecopier No.: ___________
(b) if to the Company, to:
Scientific Bioprocessing, Inc.
00 Xxxxxxx Xxxxx
Xxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx, President
Telecopier No.: (000) 000-0000
with a required copy to:
Xxxxxxx Xxxxxx & Xxxxxxxxxx LLC
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxxxxxxx
Telecopier No.: (000) 000-0000
15.8. Expenses. Each party hereto shall pay its own expenses
in connection with the transactions contemplated by this Agreement,
whether or not they are completed. In the event of any conflict between
this provision and the indemnification or termination provisions of this
Agreement, the indemnification or termination provisions, as the case
may be, shall control.
15.9. Entire Agreement. This Agreement constitutes the entire
agreement between and among the parties hereto with respect to the
subject matter hereof and thereof and supersede all prior agreements
and understandings, whether written or oral, between the parties in
connection with such subject matter.
15.10. Governing Law. This Agreement shall be governed by,
and construed and enforced in accordance with, the substantive law of
the State of New York without giving effect to any conflict-of-law
provision. The parties hereby irrevocably and unconditionally
consent to submit to the exclusive jurisdiction of the state and
federal courts located in New York for any actions, suits or
proceedings arising out of or relating to this Agreement (and each
party agrees not to commence any action, suit or proceeding relating
thereto except in such courts), and further agree that service of
any process, summons, notice or document in accordance with Section
15.7 hereof shall be effective service of process for any action,
suit or proceeding brought against the parties in any such court.
The parties hereby irrevocably and unconditionally
waive any objection to the laying of venue of any action, suit
or proceeding arising out of this Agreement in the state and
federal courts located in New York, and hereby further irrevocably
and unconditionally waive and agree not to plead or claim in any
such court that any such action, suit or proceeding brought in any
such court has been brought in an inconvenient forum.
15.11. Interpretation. When reference is made in this
Agreement to a Section, such reference shall be to a Section of this
Agreement, unless otherwise indicated. References to Sections include
subsections, which are part of the related Section (e.g., a section
numbered "Section 1.4(a)" would be part of "Section 1.4" and
references to "Section 1.4" would also refer to material contained
in the subsection described as "Section 1.4(a)"). The recitals hereto
constitute an integral part of this Agreement. The table of contents
and headings contained in this Agreement are for convenience of
reference only and shall not affect in any way the meaning or
interpretation of this Agreement. The language used in this Agreement
shall be deemed to be the language chosen by the parties hereto to
express their mutual intent, and no rule of strict construction shall
be applied against any party. Whenever the context may require, any
pronouns used in this Agreement shall include the corresponding
masculine, feminine or neuter forms, and the singular form of nouns
and pronouns shall include the plural, and vice versa. Any reference
to Law shall be deemed to refer to such Law as such Law may be in
effect from time to time, unless the context requires otherwise.
Whenever the words "include," "includes" or "including" are used in
this Agreement, they shall be deemed to be followed by the words
"without limitation." The term "or" shall have the inclusive meaning
frequently identified with the phrase "and/or." No summary of this
Agreement prepared by any party shall affect the meaning or
interpretation of this Agreement.
15.12. Modification. It is the intention of the parties
that this Agreement be enforced in accordance with its specific terms.
However, if it should for some reason be contrary to public policy to
effectuate the intentions of the parties in interpreting this Agreement,
the parties have agreed as follows:
(a) In the event that any court to which a dispute is
submitted determines that any provision of this Agreement is invalid
or unenforceable by reason of its extending for too great a period of
time or over too large a geographic area or over too great a range of
activities, the parties agree that the court shall have the power to
reduce the scope, duration, or geographic area of the term or provision,
to delete specific words or phrases, or to replace any invalid or
unenforceable term or provision with a term or provision that is valid
and enforceable and that comes closest to expressing the intention of
the invalid or unenforceable term or provision, and this Agreement
shall be enforceable as so modified after the expiration of the time
within which the decision may be appealed.
(b) If the court shall determine that any provision of
this Agreement is invalid, illegal or otherwise unenforceable, the
validity, legality and enforceability of the other provisions of this
Agreement shall not be affected thereby. Any invalid, illegal or
unenforceable provision of this Agreement shall be severable, and
after any such severance, all other provisions of this Agreement shall
remain in full force and effect. In all such cases, the parties shall
use their reasonable best efforts to substitute a valid, legal and
enforceable provision which, insofar as practicable, implements the
original purposes and intents of this Agreement.
15.13. Severability. Any provision of this Agreement which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of this
Agreement or affecting the validity or enforceability of such provision
in any other jurisdiction.
15.14. Counterparts and Facsimile Signatures. This Agreement
may be executed in one or more counterparts, all of which shall be
considered one and the same agreement and shall become effective when
one or more counterparts have been signed by each party and delivered
to the other party, it being understood that all parties need not sign
the same counterpart. Facsimile execution and delivery of this
Agreement by any of the parties shall be legal, valid and binding
execution and delivery of such document for all purposes.
15.15. Dispute Resolution. Except for disputes under Section
1.4, which shall be resolved in accordance with Section 1.4(f), any
party may give the other party notice of any dispute not resolved in
the normal course of business. Within five (5) business days after
delivery of that notice, the receiving party will provide a written
response. Within five business (5) days after delivery of the
receiving party's notice, executives of the parties who have authority
to resolve the dispute will meet to attempt to resolve the dispute.
All reasonable requests for information will be honored. If the matter
has not been resolved within fifteen (15) business days after the
disputing party's initial notice, the dispute shall be resolved
exclusively by final and binding arbitration administered by the
American Arbitration Association ("AAA") and conducted before a single
arbitrator pursuant to the current expedited procedures applicable
to the then-current commercial arbitration rules of the AAA. The
place of arbitration shall be New York, New York. Any award rendered
by the arbitrator shall be final and binding upon the parties, and
judgment upon any such award rendered may be entered in any court
having jurisdiction. Each party shall pay its own expenses of
arbitration, and the expenses of the arbitrator shall be equally
shared between the Company and Developer unless the arbitrator
assesses as a part of his or her award all or any part of the
arbitration expenses of a party (including reasonable attorneys'
fees) against the other party.
15.16. No Assignment by Developer. This Agreement is
personal to Developer, and Developer shall not assign, transfer,
delegate or otherwise dispose of, whether voluntarily or involuntarily,
by operation of law or otherwise, this Agreement or any of its rights
or obligations under this Agreement without the prior written consent
of the Company. Any purported assignment, sale, transfer, delegation
or other disposition by Developer, except as permitted herein, shall
be null and void. The Company may freely assign this Agreement, in
whole or in part, with or without notice to or consent of the Developer.
This Agreement, including all rights and obligations hereunder, will
be binding upon the parties and their respective permitted successors
and assigns, and all such permitted successors and/or assigns shall
execute an acknowledgement in writing agreeing to be fully bound by
the terms and conditions of this Agreement prior to such assignment.
15.17. Waiver of Jury Trial. EACH OF DEVELOPER AND THE
COMPANY BY THIS AGREEMENT IRREVOCABLY AND UNCONDITIONALLY WAIVES ALL
RIGHTS TO TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING OR COUNTERCLAIM
WITH RESPECT TO ANY MATTER WHATSOEVER ARISING OUT OF OR IN CONNECTION
WITH OR RELATED TO THIS AGREEMENT OR THE ENFORCEMENT OF THIS AGREEMENT
OR THEREOF.
* * * * *
The remainder of this page has been intentionally left blank.
IN WITNESS WHEREOF, the undersigned have duly executed and
delivered this Agreement as of the date first above written.
BIODOX R&D CORPORATION
By: /s/ Xxxxxx Xxxxxxx
_______________________
Name: Xxxxxx X. Xxxxxxx
Title: President
SCIENTIFIC BIOPROCESSING, INC.
By: /s/ Xxxxxx X. Xxxxxx
_________________________
Name: Xxxxxx X. Xxxxxx
Title: President
ACKNOWLEDGED BY:
/s/ Xxxxxx Xxxxxxx
____________________________
Xx. Xxxxxx X. Xxxxxxx
