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EXHIBIT 10.20
LICENSE AGREEMENT
This Agreement is made effective the 12th day of November,
1998 (the "Effective Date"), by and between Agway Consumer Products, Inc., a
Delaware corporation with offices at 000 Xxxxxxxxx Xxxxx, Xxxxxx, Xxx Xxxx 00000
(hereinafter "Agway"), and Planet Polymer Technologies, Inc., a California
corporation with offices at 0000 Xxxxxxxxxxxx Xxxxxx, Xxxxx X, Xxx Xxxxx,
Xxxxxxxxxx 00000 (hereinafter "Planet").
WHEREAS, Planet ha develope technology relating to time-
release coatings and protective coatings; and
WHEREAS, Agway wishes to receive an exclusive, worldwide
license from Planet in connection with time-release coatings for a variety of
Agricultural Products (as hereafter defined) and in connection with protective
coatings for a variety of Food Products (as hereafter defined).
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS:
1.1 "Agricultural Products" shall mean products for use in Agriculture,
including, but not be limited to, animal feeds and other products
intended for animal consumption, but shall exclude Fertilizer Products,
as defined in 1.4 below, and Biological Products as defined in the
agreement between Planet and Agrium, Inc. dated January 30, 1995.
Agriculture shall mean the production of crops, livestock, dairy
products, poultry products, meats, and other products produced for
and/or produced from a farm operation.
1.2 "Food Products" shall mean products intended for human dietary
consumption, including, but not be limited to, dairy products, poultry
products, meat products, fruits and vegetables.
1.3 "Other Products" shall mean coated urea for melting ice at airports,
and packaging for Agricultural Products and Food Products.
1.4 "Fertilizer Products" shall mean plant nutrients and other products
intended for use in fertilizers, including the specific urea fertilizer
coating ("Enviroplastic CRT") developed by Planet for Agrium, Inc., as
covered by U.S. Patent no. 5,803,946.
1.5 "Agway's Field of Business" shall mean the production, distribution
and/or marketing of Agricultural Products, Food Products, Other
Products and any other products as may be mutually agreed upon
in writing by Agway and Planet (individually a "Product", and
collectively the "Products").
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1.6 "Affiliate" shall mean any company which, directly or indirectly, is
controlled by, or controls, a party to this Agreement, or is under
common control with a party to this Agreement. Ownership of 50% or more
of the voting stock of, or membership interest in a company shall be
regarded as control.
1.7 "Control" shall mean possession of the ability to grant a license or
sublicense as provided for herein without violating the terms of any
agreement or other arrangement with any third party.
1.8 "Know-How" shall mean all know-how, trade secrets, inventions, data,
processes, techniques, procedures, compositions, devices, methods,
formulas, protocols and information, whether or not patentable, which
are not generally publicly known, including, without limitation, all
chemical, biochemical, toxicological, and scientific research
information.
1.9 "Commercially Feasible" shall mean a product that will generate a
minimum of $500,000.00 in net profits annually to be shared between
Planet and Agway, beginning no later than the second year following
product introduction.
1.10 "Patent Rights" shall mean all rights under patents and patent
applications, and any and all patents issuing therefrom (including
utility, model and design patents and certificates of invention),
together with any and all substitutions, extensions (including
supplemental protection certificates), registrations, confirmations,
reissues, divisionals, continuations, continuations-in-part,
re-examinations, renewals and foreign counterparts of the foregoing.
1.11 "Agway Know-How" shall mean all Know-How necessary or appropriate to
develop and commercialize Products for use in Agway's Field of
Business, and which is under the Control of Agway.
1.12 "Products" shall mean Agricultural Products, Food Products, Other
Products and any other products as may be mutually agreed upon in
writing by Agway and Planet.
1.13 "Planet Know-How" shall mean all Know-How related to Planet's
proprietary coating technology, which is not covered by the Planet
Patent Rights, but is necessary or appropriate to develop and
commercialize Products for use in Agway's Field of Business, and which
is under the Control of Planet as of the Effective Date.
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1.14 "Planet Patent Rights" shall mean all Patent Rights that claim Planet's
proprietary coating technology, which are necessary or appropriate to
develop and commercialize Products for use in Agway's Field of
Business, and which are under the Control of Planet as of the Effective
Date.
1.15 "Planet Technology" shall mean the Planet Patent Rights and the Planet
Know-How.
1.16 "New Technology" shall mean Patent Rights and Know-How including, but
not limited to, new compositions of matter, new chemical complexes,
improved chemical complexes, association compounds, blends, mixtures or
compositions of coating materials, polymer materials and new products
or processes relating thereto, developed as a result of the Work
conducted under ARTICLE 2 of the Product Feasibility Agreement entered
into between the parties hereto as of the effective date hereof,
whether developed by Planet alone or jointly with Agway, or by Agway
alone as a result of disclosures made to it by Planet in connection
with such work.
ARTICLE 2
LICENSES; NON-COMPETITION; DUE DILIGENCE:
2.1 Subject to the terms and conditions of this Agreement, Planet hereby
grants to Agway an exclusive, worldwide license under the Planet
Technology to use and sell Products in Agway's Field of Business. The
license granted to Agway under this paragraph 2.1 shall include the
right to grant sublicenses to third parties covering Planet Technology
to the extent necessary to use or sell Products incorporating the New
Technology in Agway's Field of Business.
2.2 Subject to the terms and conditions of this Agreement, Planet hereby
grants to Agway an exclusive, worldwide license under the New
Technology to use and sell Products in Agway's Field of Business. The
license granted to Agway under this paragraph 2.2 shall include the
right to grant sublicenses to third parties, in Agway's sole
discretion. Agway shall notify any sublicensees hereunder of all rights
and obligations of Agway under this Agreement which are sublicensed to
such sublicensee and shall notify Planet within 30 days of the grant of
any sublicense hereunder.
2.3 Subject to the terms and conditions of this Agreement, with respect to
Products which revert to Planet pursuant to Section 2.4, or pursuant to
the terms of any sub-agreement contemplated by ARTICLE 4 hereof, Agway
hereby grants to Planet a non-exclusive, worldwide, fully-paid,
royalty-free license under the Agway Know-How to make, have made, use
and sell such Products in Agway's Field of Business.
2.4 Agway shall not market, sell or distribute any polymer coated product
(either directly or indirectly) in Agway's Field of Business which is
directly competitive with any Product. In the event Agway markets,
sells or distributes any polymer coated product
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which is directly competitive with a Product, all rights granted to
Agway under this Agreement with respect to such Product and any other
license of any Planet Technology or New Technology related thereto
shall revert to Planet and Agway shall have no further right to use,
market, sell or distribute such Product. Planet agrees that no products
sold by Agway either currently or within the immediately preceding 12
months shall be considered to be "competitive" within the meaning of
this Section 2.4. Planet shall not market, sell or distribute any
polymer coated product (either directly or indirectly) in Agway's Field
of Business which is directly competitive with any Product.
2.5 Planet shall provide written notice to Agway in the event Planet
desires to develop a product with a third party, or is approached by a
third party to develop a product, for use in Agway's Field of Business.
Such notice shall include an outline of anticipated funding needs, the
anticipated length of the product feasibility study and Planet's
desired result from such study. Agway shall have 30 days following
receipt of such notice to advise Planet whether Agway considers the
product to be Commercially Feasible, and whether Agway is interested in
such a product. Agway shall have another 30 days thereafter to
negotiate a product feasibility study on terms and conditions
acceptable to Planet, including financial terms under which Agway will
fund such product feasibility study. If the parties cannot agree to
such terms and conditions within such 30 day period, or if the parties
cannot agree whether the product is or is not Commercially Feasible,
the parties agree to submit the matter to arbitration under ARTICLE 18
and Planet agrees to take no further action with respect to such
product and feasibility study during the arbitration proceeding. If the
product is considered to be Commercially Feasible, and if Agway does
not express interest in such a product within the initial 30 day
period, (i) Planet may proceed with such a third party product
feasibility study and Agway shall have no rights in connection with
such product feasibility study or with respect to any product developed
thereunder (hereinafter a "Developed Product"), and (ii) Planet shall
have the right to grant an exclusive license to a third party under the
Planet Technology and the New Technology to make, have made, use or
sell such Developed Product in Agway's Field of Business. Any such
third party license shall be limited to such Developed Product and
shall not otherwise diminish Agway's rights with respect to the Planet
Technology and to the New Technology under this Agreement. Planet
agrees that it will not, during the term of this Agreement, proceed
with such a third party feasibility study if the product is not
considered to be Commercially Feasible.
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2.6 Planet shall provide written notice to Agway in the event Planet
develops, totally independently of Agway, a product which demonstrates
efficacy for use in Agway's Field of Business. Agway shall have 90 days
following receipt of such notice from Planet to advise Planet whether
Agway considers the product to be Commercially Feasible, and to submit
a commercialization plan to Planet with respect to such product. Agway
shall have 60 days following Planet's receipt of such commercialization
plan to negotiate commercially reasonable license terms acceptable to
Planet with respect to such product. If the parties cannot agree to
license terms within the following 60-day period, or if the parties
cannot agree whether the product is or is not Commercially Feasible,
the parties agree to submit the matter to arbitration under ARTICLE 18
and Planet agrees to take no further action with respect to such
product during such arbitration proceeding. In the event (a) Agway
fails to provide a commercialization plan to Planet within such 90-day
period, and (b) the product is considered to be Commercially Feasible,
then (i) Agway shall have no rights to such product under this
Agreement and (ii) Planet shall have no further obligation to Agway
under this Agreement with respect to such product and shall have the
right to grant an exclusive license to a third party under the Planet
Technology and the New Technology to make, have made, use or sell such
product in Agway's Field of Business. Any such third party license
shall be limited to such product and shall not otherwise diminish
Agway's rights with respect to the Planet Technology and the New
Technology under this Agreement. Planet agrees that it will not, during
the term of this Agreement, commercialize such a product in Agway's
Field of Business if it is not considered to be Commercially Feasible.
Notwithstanding the foregoing, the notice set forth in this provision
shall not be required with respect to any product developed under a
product feasibility study, if Planet has complied with the procedures
set forth in Section 2.5.
2.7 If Planet is unwilling or unable to supply Agway's commercially
reasonable requirements of a Product which Agway has decided to market,
the licenses granted Agway under Sections 2.1 and 2.2 above shall be
extended to include a non-exclusive, worldwide license to make and have
made such Product, automatically without further action on the part of
either party to the extent necessary to compensate for Planet's
unwillingness or inability to supply Agway's requirements on
commercially reasonable terms including, without limitation, economies
of scale. If Planet subsequently becomes willing and able to supply all
or a portion of Agway's commercially reasonable requirements of such
Product, the parties agree that the transfer to Planet as supplier
shall take into account any contractual obligations of Agway to others.
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ARTICLE 3
CONFIDENTIALITY:
The terms of the Mutual Non-Disclosure Agreement between Agway and
Planet, made as of August 6, 1998 (the "NDA"), a copy of which is
attached hereto as Exhibit 1, is hereby incorporated herein and made a
part hereof. Neither party shall terminate the NDA during the term of
the Agreement. Each party may use Confidential Information (as defined
in NDA) of the other party only to the extent necessary to accomplish
the purposes of this Agreement.
ARTICLE 4
ROYALTY:
The parties agree that a reasonable royalty for the licenses granted
Agway under this Agreement will depend upon various factors, including
the nature of the particular Product being marketed and the particular
market area. Accordingly, when Agway decides, in its sole discretion,
to market a particular Product developed as a result of the Product
Feasibility Agreement entered into between the parties hereto as of the
effective date hereof, or otherwise involving Agway, in a particular
area, the parties shall enter into a sub-agreement on commercially
reasonable terms mutually acceptable to the parties covering such
Product and market area, in the form of the sub-agreement set forth in
Exhibit 2 attached hereto and hereby incorporated herein and made a
part hereof. Agway agrees that: (a) once such a Product has been
developed which the parties agree can be reasonably expected to
generate a minimum of $1,000,000.00 in net profits annually, shared
between Planet and Agway; it will, (b) upon written request by Planet,
present to Planet a Schedule for the marketing thereof, in the form of
Exhibit 2, within one year from the date of receiving such request. All
of the terms of this Agreement shall apply to each such sub-agreement,
to the extent they are not inconsistent therewith. Any dispute between
the parties with respect to the terms of any sub-agreement shall be
resolved by arbitration pursuant to ARTICLE 18.
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ARTICLE 5
TERM:
5.1 Except as otherwise provided herein, this Agreement shall commence as
of the date of its execution and shall continue until the expiration of
the last to expire of any patents covering the Planet Technology and/or
the New Technology.
5.2 This Agreement may be extended by mutual written agreement of the
parties.
ARTICLE 6
TERMINATION:
6.1 This Agreement may be terminated:
a) Upon mutual written agreement of the parties; or
b) By either party for material breach of any of the terms hereof
by the other party, if the breach is not corrected within
sixty (60) days after giving written notice of such breach to
the other party, it being understood and agreed that the
failure by Agway to meet performance standards in any
individual subagreement of Exhibit 2 shall not be considered a
material breach; or
c) By Agway on six months' prior written notice to Planet if, in
Agway's sole opinion, the continued marketing and sale of
Products under this Agreement is unprofitable or otherwise not
viable for Agway: provided, however, that Agway shall not have
the right to terminate the Agreement under this subparagraph
until the expiration of 3 years from the Effective Date first
above written; or
d) By Agway, forthwith, upon written notice to Planet if Planet
shall become insolvent or shall make an assignment for the
benefit of creditors, or shall be placed in receivership,
reorganization, liquidation or bankruptcy (voluntary or
involuntary); or
e) By Planet, forthwith, upon written notice to Agway if Agway
shall become insolvent or shall make an assignment for the
benefit of creditors, or shall be placed in receivership,
reorganization, liquidation or bankruptcy (voluntary or
involuntary); or
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f) By Planet, if the business of Agway, subject to the terms of
this Agreement, by law, decree, ordinance or other
governmental action, is vested in, or is made subject to, the
control or direction of any governmental agent, officer or
appointee, or of any other person or firm not a party or an
Affiliate of a party to this Agreement; or
g) By Agway, if the business of Planet, subject to the terms of
this Agreement, by law, decree, ordinance or other
governmental action, is vested in, or is made subject to, the
control or direction of any governmental agent, officer or
appointee, or of any other person or firm not a party or an
Affiliate of a party to this Agreement; or
h) By Agway, in Agway's sole discretion forthwith upon written
notice to Planet if the shareholders of Planet do not approve
at a special meeting of its shareholders called for such
purpose (A) the purchase by Agway Holdings, Inc. ("AHI") of
1,000,000 shares of Planet's common stock pursuant to a Stock
Purchase Agreement between AHI and Planet dated on or about
the date of this Agreement (the "Stock Agreement"), (B) the
Warrant and the Warrant Shares as such terms are defined in
the Stock Agreement) and (C) the other transactions provided
for in the Stock Agreement, or if the Initial Closing (as
defined in the Stock Agreement) shall not have occurred on or
before January 31, 1999 or such later date as the parties may
agree upon in writing ("Termination Date"). If this Agreement
is terminated as hereinabove provided, then Planet shall repay
to Agway all amounts paid by Agway or any Affiliate of Agway
under this Agreement on the Termination Date.
6.2 Any termination pursuant to ARTICLE 6.1 shall not relieve either party
of any obligation or liability accrued under this Agreement prior to
such termination, or rescind or give rise to any right to rescind
anything done or, except as provided for in Section 6.1 h), to recover
any payments made or other consideration given under this Agreement
prior to the time such termination becomes effective, and such
termination shall not affect in any manner any rights arising under
this Agreement prior to such termination.
6.3 The Mutual Non-Disclosure Agreement attached as Exhibit 1 shall remain
in effect following the termination of this Agreement, in accordance
with its terms.
6.4 In the event of termination of this Agreement for any reason, Agway
shall have three months following the date of termination within which
to dispose of inventory incorporating the Planet Technology and/or the
New Technology and to fulfill orders received therefor prior to the
termination date, subject to the payment of royalties as provided in
ARTICLE 5 above.
6.5 The provisions of ARTICLES 1, 3, 6, 8.3, 8.4, 11, 12, 13, 14, 15, 16,
17, 18, 19, and 20 shall survive expiration or termination of this
Agreement.
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ARTICLE 7
PATENT MARKING; INTELLECTUAL PROPERTY RIGHTS:
7.1 Agway and its Affiliates will use commercially reasonable efforts to
affix and/or to require its or their distributors to affix to
packaging, or in the case of bulk distribution to the accompanying
documents, for the Products a notice complying with all applicable
patent marking laws in the country or countries in which the Products
are made and the country or countries in which the Products are
distributed and sold. Planet shall from time to time inform Agway of
the appropriate patent marking in respect of Planet Technology and New
Technology.
7.2 With respect to any patent applications and patents covering the Planet
Technology and the New Technology, Planet shall be responsible for all
costs and expenses related to preparing, filing and prosecuting such
patent applications and paying all maintenance fees related to any such
issued patents. After any patents covering the Planet Technology and
the New Technology have issued, Planet and Agway shall share equally
all costs and expenses related to the further prosecution and any
defense and enforcement of such patents (including, if applicable,
opposition proceedings related to any European patents, re-examination
of issued patents, interference proceedings and declaratory judgements
regarding invalidity of any such issued patents). In the event that
Planet desires to abandon any patent application or patent covering the
Planet Technology or the New Technology, or if Planet later declines
responsibility for any such patent application or patent, Planet shall
provide reasonable prior written notice to Agway of such intention to
abandon or decline responsibility, and Agway shall have the right, at
its own expense, to file, prosecute and maintain such patent
application or patent. In addition, Agway shall have the right, at its
own expense, to file, prosecute and maintain such patent application or
patent upon or after the bankruptcy, dissolution or winding up of
Planet. Agway may offset its costs and expenses in connection with any
such patent application or patent against any royalties due Planet
thereunder, in an amount not to exceed 5% of such royalties, until the
total of such costs and expenses, plus accrued interest (at the rate of
1.5% per month, up to the maximum legal annual interest rate) on the
balance of such costs and expenses remaining after each such royalty
payment to Planet, has been recouped by Agway in this manner.
7.3 Each party agrees to cooperate fully in the preparation, filing, and
prosecution of any patent applications under this Agreement. Such
cooperation includes, but is not limited
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to: (a) executing all papers and instruments, or requiring its
employees or agents, to execute such papers and instruments, so as to
effectuate the ownership of such patent applications (and inventions
covered by such patent applications) and to enable the other party to
apply for and to prosecute patent applications in any country, and (b)
promptly informing the other party of any matters coming to such
party's attention that may affect the preparation, filing, or
prosecution of any such patent applications.
7.4 Planet and Agway shall promptly notify the other in writing of any
allegation by a third party that the activity of either of the parties
under this Agreement infringes or may infringe the intellectual
property rights of such third party. Planet shall have the right to
control the defense of any claims with respect to the Planet Technology
or the New Technology by counsel of its own choice. If Planet fails to
proceed in a timely fashion with regard to the defense of any claims
with respect to the Planet Technology or the New Technology, Agway
shall have the right to control any such defense of such claim by
counsel of its own choice, and Planet shall have the right to be
represented in any such action by counsel of its own choice. Neither
party shall have the right to settle any patent infringement litigation
under this Section 7.4 in a manner that diminishes the rights or
interests of the other party or obligates the other party to make any
payment or take any action without the consent of such other party.
7.5 Planet and Agway shall promptly notify the other in writing of any
alleged or threatened infringement of any patent included in the Planet
Technology or the New Technology of which they become aware. Both
parties shall use their best efforts in cooperating with each other to
terminate such infringement without litigation. Planet shall have the
right to bring and control any action or proceeding with respect to
infringement of any patent included in the Planet Technology or the New
Technology by counsel of its own choice. With respect to infringement
of any patent included in the Planet Technology or the New Technology,
if Planet fails to bring an action or proceeding within (a) 90 days
following the notice of alleged infringement or (b) 10 days before the
time limit, if any, set forth in the appropriate laws and regulations
for the filing of such actions, whichever comes first, Agway shall have
the right to bring and control any such action by counsel of its own
choice, and Planet shall have the right to be represented in any such
action by counsel of its own choice. In the event a party brings an
infringement action, the other party shall cooperate fully, including
if required to bring such action, the furnishing of a power of
attorney. Neither party shall have the right to settle any patent
infringement litigation under this Section 7.5 in a manner that
diminishes the rights or interests of the other party without the prior
written consent of such other party. Except as otherwise agreed to by
the parties as part of a cost sharing arrangement, any recovery
realized as a result of such litigation, after reimbursement of any
litigation expenses of Planet and Agway, shall belong to the party who
brought the action.
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ARTICLE 8
REPRESENTATIONS AND WARRANTIES:
8.1 Planet represents and warrants that:
a) It has authority to enter into this Agreement, and doing so
will not violate any agreements to which it is a party.
b) It has all necessary government licenses and approvals
required to conduct its business.
c) It has no knowledge of any impediment to its performance of
this Agreement.
8.2 Agway represents and warrants that:
a) It has authority to enter into this Agreement, and doing so
will not violate any agreements to which it is a party.
b) It has all necessary government licenses and approvals
required to conduct its business.
c) It has no knowledge of any impediment to its performance of
this Agreement.
8.3 EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES
ANY REPRESENTATION OR WARRANTY TO THE OTHER PARTY OF ANY KIND, EXPRESS
OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF
NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8.4 NEITHER PARTY SHALL BE ENTITLED TO RECOVER FROM THE OTHER PARTY ANY
SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE
DAMAGES IN CONNECTION WITH THIS AGREEMENT OR ANY WORK PERFORMED
HEREUNDER.
ARTICLE 9
NOTICES:
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All notices or other communications required or permitted to be given
under this Agreement shall be in writing and shall be deemed to have
been sufficiently given when delivered in person, or when deposited
with the United States Postal Service or Canada Post, first-class,
registered or certified mail, postage prepaid, or by fax (upon
confirmation of receipt), addressed as follows:
AGWAY:
Agway Consumer Products, Inc.
X.X. Xxx 0000
Xxxxxxxx, Xxx Xxxx 00000-0000
FAX: (000) 000-0000
Attention: Xxxxxx XxXxxx
PLANET:
Planet Polymer Technologies, Inc.
0000 Xxxxxxxxxxxx Xxxxxx, Xxxxx X
Xxx Xxxxx, Xxxxxxxxxx X.X. 00000
FAX: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxx
or to such other address or individual as either party may specify from
time to time in writing.
ARTICLE 10
ASSIGNMENT:
This Agreement shall be binding on and inure to the benefit of the
parties to this Agreement and their successors and permitted assigns,
provided no assignment shall relieve the assigning party of its
obligations under this Agreement. The rights, duties, privileges and
obligations of each party under this Agreement shall not be assigned or
delegated without the prior written consent of the other party (which
consent shall not be unreasonably withheld); provided, however, that
either party may assign this Agreement and its rights and obligations
hereunder without the other party's consent (a) in connection with the
transfer or sale of all or substantially all of the business of such
party to which this Agreement relates to another party, whether by
merger, sale of stock, sale of assets or otherwise, or (b) to any
Affiliate. Any assignment not in accordance with this Agreement shall
be void.
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ARTICLE 11
NO REFUND OR PAYMENTS:
Royalties and all other sums paid by Agway to Planet under this
Agreement shall not be refundable for any purpose, except for excess
payment made due to computational errors.
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ARTICLE 12
LITIGATION:
12.1 Planet shall have no obligation to enforce rights under its patents
and/or trade secrets for the benefit of Agway or otherwise; nor shall
Planet have any obligation to defend or indemnify Agway or its
Affiliates in respect of any activities of Agway and/or its Affiliates
under this Agreement.
12.2 Agway shall have no obligation to enforce rights under its patents
and/or trade secrets for the benefit of Planet or otherwise; nor shall
Agway have any obligation to defend or indemnify Planet or its
Affiliates in respect of any activities of Planet and/or its Affiliates
under this Agreement.
ARTICLE 13
PRODUCT LIABILITY:
13.1 Agway shall hold Planet and its Affiliates harmless, and shall defend
and indemnify Planet and its Affiliates against any product liability
claim made against Planet or its Affiliates arising out of the
activities of Agway and/or its Affiliates under this Agreement.
13.2 Planet shall hold Agway and its Affiliates harmless, and shall defend
and indemnify Agway and its Affiliates against any product liability
claim made against Agway or its Affiliates arising out of the
activities of Planet and/or its Affiliates under this Agreement.
13.3 In the event either party seeks indemnification under this ARTICLE 13,
it shall inform the other party of a claim as soon as reasonably
practicable after it receives notice of the claim, shall permit the
other party to assume direction and control of the defense of the claim
(including the right to settle the claim solely for monetary
consideration), and shall cooperate as requested (at the expense of the
other party) in the defense of the claim.
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ARTICLE 14
NON-WAIVER:
The failure by any party to this Agreement, at any time, to enforce or
to require strict compliance of performance by any other party of any
of the provisions of this Agreement shall not constitute a waiver of
such provisions and shall not affect or impair in any way its rights at
any time to enforce such provisions or to avail itself of such remedies
as it may have for any breach thereof.
ARTICLE 15
SEVERABILITY:
If any provision hereof is held invalid or unenforceable by a court of
competent jurisdiction, it shall be considered severed from this
Agreement and shall not serve to invalidate or render unenforceable the
remaining provisions hereof.
ARTICLE 16
ENTIRE AGREEMENT; AMENDMENT:
This Agreement constitutes the entire understanding between the parties
with respect to the subject matter hereof. No waiver, modification or
amendment of any terms of this Agreement shall be valid unless made in
writing specifying such waiver, modification, or amendment and signed
by the parties hereto.
ARTICLE 17
FORCE MAJEURE:
Neither party shall be held liable or responsible to the other party
nor be deemed to have defaulted under or breached this Agreement for
failure or delay in fulfilling or performing any term of this Agreement
(other than non-payment) when such failure or delay is caused by or
results from causes beyond the reasonable control of the affected
party, including, but not limited to, fire, floods, embargoes, war,
acts of war (whether war be declared or not), insurrections, riots,
civil commotions, strikes, lockouts or other labor disturbances, acts
of God or acts, omissions or delays in acting by any governmental
authority or the other party.
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ARTICLE 18
DISPUTE RESOLUTION AND CHOICE OF LAW:
18.1 This Agreement will be governed by, and interpreted and enforced in
accordance with the laws of the State of New York, U.S.A., without
regard to its choice of law provisions.
18.2 If any dispute arises between the parties relating to the
interpretation, breach or performance of this Agreement or the grounds
for the termination thereof, and the parties cannot resolve the dispute
within 30 days of a written request by either party to the other party,
the parties agree to hold a meeting, attended by a Vice President or
President of each party, to attempt in good faith to negotiate a
resolution of the dispute prior to pursuing other available remedies.
If, within 60 days after such written request, the parties have not
succeeded in negotiating a resolution of the dispute, such dispute
shall be submitted to final and binding arbitration under the then
current commercial rules and regulations of the American Arbitration
Association ("AAA") relating to voluntary arbitrations. The arbitration
proceedings shall be held in Buffalo, New York. The arbitration shall
be conducted by one arbitrator, who is knowledgeable in the subject
matter at issue in the dispute and who shall be selected by mutual
agreement of the parties or, failing such agreement, shall be selected
in accordance with the AAA rules. Each party shall initially bear its
own costs and legal fees associated with such arbitration. The
prevailing party in any such arbitration shall be entitled to recover
from the other party the reasonable attorneys' fees, costs, and
expenses incurred by such prevailing party in connection with such
arbitration. The decision of the arbitrator shall be final and binding
on the parties. The arbitrator shall prepare and deliver the parties a
written, reasoned opinion conferring its decision. Judgment on the
award so rendered may be entered in any court having competent
jurisdiction thereof.
ARTICLE 19
NO AGENCY:
It is expressly agreed that Planet and Agway shall be independent
contractors and that the relationship between the two parties shall not
constitute a partnership or agency of any kind. Neither Planet nor
Agway shall have the authority to make any statements, representations,
or commitments of any kind, or to take any action, which shall be
binding on the other party, without the prior written consent of the
other party.
17
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ARTICLE 20
COUNTERPARTS:
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their duly authorized officers as of the day
and year first set forth above.
AGWAY CONSUMER PRODUCTS, INC.
By:
--------------------------
Title:
PLANET POLYMER TECHNOLOGIES, INC.
By:
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Title:
