LICENSE AGREEMENT
This Agreement is entered into as of December 12, 1996 between Licensee
Applied Microbiology, Inc., a New York corporation ("AMBI"), and Licensor Xxxxx
& Xxxxxxx, Limited, a corporation incorporated under the laws of England and
Wales ("A&B") (collectively "parties").
WHEREAS, AMBI and A&B have entered into a Share Purchase Agreement (the
"Purchase Agreement") dated as of December 12, 1996 by and among AMBI, A&B, and
Xxxxx Xxxxx (UK) plc ("Xxxxx Xxxxx"), pursuant to which Xxxxx Xxxxx has agreed
to purchase all of the issued and outstanding shares of A&B from AMBI; and
WHEREAS, A&B has developed, and maintained as confidential, certain
valuable PROPRIETARY INFORMATION, hereinafter defined, relating to NISIN
PREPARATIONS, hereinafter defined, with respect to the manufacture, use, and
sale of LICENSED PRODUCTS, hereinafter defined; and
WHEREAS, AMBI desires the right to use A&B's PROPRIETARY INFORMATION in
the manufacture, use, and sale of the LICENSED PRODUCTS; and
WHEREAS, A&B has obtained, or may obtain, patents encompassed by the
PATENTED TECHNOLOGY, hereinafter defined, for certain inventions relating to the
manufacture, use, and sale of the LICENSED PRODUCTS; and
WHEREAS, AMBI desires the right to use the inventions claimed in A&B's
PATENTED TECHNOLOGY in the manufacture, use, and sale of the LICENSED PRODUCTS;
and
WHEREAS, the obligations of AMBI and A&B under the Purchase Agreement are
conditioned, among other things, upon the execution and delivery of this
Agreement by the parties hereto
and the grant of certain licenses by A&B to AMBI as hereafter set forth; and
WHEREAS, the obligations of AMBI and A&B under the Purchase Agreement are
conditioned, among other things, upon the simultaneous execution and delivery of
a counterpart License Agreement by the parties hereto granting certain licenses
by AMBI to A&B (the "AMBI License Agreement"); and
WHEREAS, A&B desires the right to use any inventions, modifications, and
improvements subsequently made or obtained by AMBI that relate to the
manufacture, use, or sale of the EXCLUDED PRODUCTS, and AMBI desires the right
to use any inventions, modifications, and improvements subsequently made or
obtained by A&B that relate to the manufacture, use, or sale of the LICENSED
PRODUCTS; and
WHEREAS, A&B recognizes that additional classes of products may be
developed by AMBI which would be incorporated into the listing of LICENSED
PRODUCTS, and AMBI recognizes that additional classes of products may be
developed by A&B which would be incorporated into the listing of EXCLUDED
PRODUCTS.
NOW THEREFORE, for good and valuable considerations, the receipt and
sufficiency of which is hereby acknowledged, the parties hereby agree as
follows:
1 CERTAIN DEFINITIONS
1.1 "LICENSED PRODUCTS" shall mean all AMBI products comprising,
incorporating, or relating to NISIN PREPARATIONS, whether existing or
subsequently developed, for the fields of application that are described by the
general classifications listed in Exhibit A-1 attached hereto.
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1.2 "EXCLUDED PRODUCTS" shall mean all A&B products comprising,
incorporating, or relating to NISIN PREPARATIONS for the fields of application
that are described by the general classifications listed in Exhibit A-2 attached
hereto.
1.3 "PROPRIETARY INFORMATION" shall mean all secret or confidential
information relating to the LICENSED PRODUCTS including, without limitation,
reagents, computer programs, names and expertise of employees and consultants,
know-how, formulas, processes, procedures, ideas, inventions (whether patentable
or not), schematics and other technical, business, financial, customer and
product development plans, forecasts, strategies, or other confidential
information, including currently pending and unpublished patent applications, or
subsequently filed and unpublished patent applications, including information
obtained from third parties to the extent that A&B is permitted to disclose such
information to AMBI, relating to the general classifications listed in Exhibit
B.
1.4 "PATENTED TECHNOLOGY" shall mean those inventions claimed in any
patents obtained by, assigned to, or licensed to A&B (to the extent that A&B is
permitted to sublicense such patents to AMBI), relating to the LICENSED PRODUCTS
during the term of this Agreement including any such patents listed in Exhibit
B.
1.5 "TECHNICAL INFORMATION" shall mean technical information other than
the PROPRIETARY INFORMATION and the PATENTED TECHNOLOGY within A&B's control,
including information obtained from third parties to the extent that A&B is
permitted to disclose such information to AMBI, relating to the manufacture of
NISIN PREPARATIONS or the LICENSED PRODUCTS.
1.6 "NISIN PREPARATIONS" shall mean all products containing a measurable
concentration of any form, variant, or derivative of nisin.
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2 SCOPE OF LICENSE GRANT
2.1 Subject to all the terms and limitations of this Agreement, A&B grants
to AMBI the perpetual, sole and exclusive, non-transferable, and world-wide
rights and licenses, to use A&B's PROPRIETARY INFORMATION, TECHNICAL
INFORMATION, and PATENTED TECHNOLOGY in developing, manufacturing, having
manufactured, using, selling, marketing, or distributing the LICENSED PRODUCTS.
Full consideration for this Agreement is provided by the execution of, and
continued compliance with, the counterpart AMBI License Agreement under which
A&B will receive rights and licenses to AMBI's PROPRIETARY INFORMATION,
TECHNICAL INFORMATION, and PATENTED TECHNOLOGY, the rights and licenses granted
under the AMBI License Agreement having an equivalent annual value to the rights
and licenses granted under this Agreement.
2.2 A&B and AMBI agree that this Agreement includes the right to
sublicense or disclose the PROPRIETARY INFORMATION and TECHNICAL INFORMATION to
a third party provided that any such sublicense or disclosure 1) expressly
obligates any such third party to conform to the obligations imposed on AMBI
under this Agreement regarding the confidentiality of the PROPRIETARY
INFORMATION, 2) is not made to any person or entity involved in the manufacture
of any EXCLUDED PRODUCTS for other than A&B or its affiliates, 3) is not made to
any person or entity manufacturing any NISIN PREPARATIONS for sale or delivery
other than to, or on behalf of, AMBI, A&B, or their affiliates, and 4) is
otherwise consistent with the scope of the license and obligations under this
Agreement, and further provided that AMBI shall provide notice of each such
sublicense or disclosure to A&B within thirty (30) days, and shall, at A&B's
request, provide a copy of any such agreement relating to such sublicense or
disclosure to A&B, AMBI having the right to redact financial information from
such copies.
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2.3 A&B and AMBI agree that this Agreement includes the right to
sublicense to any third party any portion or element of the PATENTED TECHNOLOGY
provided that any such sublicense 1) is not made to any person or entity
involved in the manufacture of any EXCLUDED PRODUCTS for other than A&B or its
affiliates, 2) is not made to any person or entity manufacturing any NISIN
PREPARATIONS for sale or delivery other than to, or on behalf of, AMBI, A&B, or
their affiliates, and is 3) otherwise consistent with the scope of the license
and obligations under this Agreement, and further provided that AMBI shall
provide notice of each such sublicense to A&B within thirty (30) days, and
shall, at A&B's request, provide a copy of any such sublicense to A&B, AMBI
having the right to redact financial information from such copies.
2.4 A&B and AMBI agree that this Agreement does not include the right of
AMBI to develop, manufacture, use, sell, or distribute the EXCLUDED PRODUCTS.
2.5 A&B and AMBI agree that this Agreement includes the right of AMBI to
manufacture, or have manufactured, NISIN PREPARATIONS for sale or distribution
by AMBI or third parties for incorporation into the LICENSED PRODUCTS.
2.6 A&B recognizes that new classes of products may be subsequently
developed by AMBI and agrees that such new classes of products shall be
incorporated into the LICENSED PRODUCTS, Exhibit A-1, provided that AMBI gave
written notice to A&B of each such proposed class and that A&B has not, within
thirty (30) days, objected to the proposed new class of products as detrimental
to A&B's ability to manufacture, use, or sell the EXCLUDED PRODUCTS. To the
extent that AMBI disagrees with A&B's objection, AMBI shall seek redress only in
accordance with paragraph 10.5.
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2.7 A&B and AMBI further agree that this Agreement does not include the
right of AMBI to use any of A&B's copyrights, trademarks, or trade names, in
connection with the manufacture, use, sale, or distribution of any of the
LICENSED PRODUCTS. However, A&B agrees that AMBI may deplete, in the normal
course of business, its inventory of materials and products bearing the "Xxxxx &
Xxxxxxx" tradename.
3 TRANSFER OF PROPRIETARY INFORMATION
3.1 A&B shall furnish to AMBI, as soon as is reasonably practicable after
the effective date of this Agreement, in the form or forms that are mutually
acceptable to the parties, the PROPRIETARY INFORMATION, PATENTED TECHNOLOGY, and
TECHNICAL INFORMATION necessary to enable AMBI to manufacture, have
manufactured, use, and sell the LICENSED PRODUCTS. When the foregoing
PROPRIETARY INFORMATION, PATENTED TECHNOLOGY, and TECHNICAL INFORMATION is
available in tangible form, it shall be provided in tangible form, and when
available in machine readable form, it shall be provided on mutually acceptable
media.
3.2 To the extent that the PROPRIETARY INFORMATION is provided in
documentary form, including written, graphic, or machine readable form, at least
the first page of any such document, or the label attached to any such machine
readable form, shall be suitably marked by A&B to indicate its confidential
nature.
3.3 AMBI agrees that, to the extent any document provided by A&B and
marked in accordance with paragraph 3.2 is copied or otherwise reproduced, in
whole or in part, each copy or reproduction will be marked by AMBI to indicate
its confidential nature.
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3.4 All PROPRIETARY INFORMATION shall remain at all times the property of
A&B and shall not be used by AMBI beyond the scope of the license granted under
this Agreement.
3.5 Upon termination of this Agreement pursuant to paragraph 7.3 as the
result of a breach by AMBI, AMBI shall, at A&B's option, return to A&B, or
destroy and provide certification of such destruction to A&B, all PROPRIETARY
INFORMATION, including all copies, revisions, and translations thereof, and
shall thereafter make no use of the PROPRIETARY INFORMATION.
4 TECHNICAL ASSISTANCE
4.1 A&B agrees to provide to AMBI reasonable technical support and
assistance in connection with AMBI's manufacturing of the LICENSED PRODUCTS for
a period of two (2) years from the effective date of this Agreement. The term
"sublicensee" as used in this Section includes "assignees and transferees" in
accordance with paragraph 10.3.
4.2 The technical support and assistance provided by A&B may include, as
reasonably required, meetings with A&B technical personnel at A&B's facilities,
visits by A&B technical personnel to AMBI's or its sublicensees' facilities,
observation of A&B's manufacturing operation by technical personnel of AMBI, its
consultants, or its duly sublicensed manufacturers of NISIN PREPARATIONS, and on
site support at AMBI's or its sublicensees' facilities, subject to the following
terms and conditions:
4.2.1 Such technical support and assistance services will only be
provided at the request of AMBI, or its successor in accordance with
paragraph 10.3, requests for the support and assistance to sublicensees
provided at
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A&B's facility being subject to A&B's approval, such approval not to be
unreasonably withheld;
4.2.2 Such services will be provided at times, places, and in a
manner mutually acceptable to the parties;
4.2.3 Such technical support and assistance services provided during
visits by AMBI personnel and approved sublicensees to A&B's facilities
will not exceed a total of forty-five (45) working days in any one year
period;
4.2.4 Such technical support and assistance services provided by A&B
personnel at AMBI's and its sublicensees' facilities will not exceed a
total of sixty (60) person-days in any one year period;
4.2.5 A&B shall not place a surcharge on any such services, but AMBI
shall, subject to paragraph 4.2.6, reimburse A&B for all reasonable
expenses incurred in connection with the provision of such services
including, but not limited to, the salary, travel, meal and living
expenses of the A&B personnel providing the service, excluding expenses
otherwise paid by AMBI, e.g. salaries paid pursuant to the Supply
Agreement between the parties of even date;
4.2.6 AMBI shall not be responsible for any expense over $500
incurred by A&B in conjunction with providing such technical support and
assistance without AMBI's prior written approval;
4.2.7 The expenses related to A&B's technical support and assistance
under paragraph 4.2.4 will be detailed in a statement to AMBI delivered as
soon as reasonably available after the conclusion of any such visit by
A&B's technical personnel.
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5 INVENTIONS AND IMPROVEMENTS
5.1 AMBI shall, in good faith, promptly notify A&B of any inventions,
modifications, or improvements to, or applications of, the PROPRIETARY
INFORMATION or the PATENTED TECHNOLOGY relating to the manufacture,
modification, or use of NISIN PREPARATIONS in any of the LICENSED PRODUCTS where
such inventions, modifications, or improvements are reasonably related to or may
improve A&B's manufacture, use, or sale of the EXCLUDED PRODUCTS. A&B recognizes
and acknowledges that any such inventions, modifications, or improvements are
proprietary to and owned exclusively by AMBI.
5.2 With respect to any notice provided to A&B under paragraph 5.1, AMBI
shall notify A&B within thirty (30) days of filing for patent protection for any
such invention, modification, or improvement, shall specify the countries in
which any such patent applications have been filed, and shall provide A&B with a
copy of the first such application and a copy of any subsequent application that
includes new matter.
5.3 A&B agrees to hold such inventions, modifications, improvements, or
applications as AMBI's PROPRIETARY INFORMATION in accordance with the provisions
of the AMBI License Agreement. After any such patent application is published,
or otherwise made publicly available in a manner consistent with the procedures
of the jurisdiction in which such application is pending, or a patent is
granted, information so published or otherwise made publicly available will no
longer be considered AMBI's PROPRIETARY INFORMATION.
5.4 With respect to all such patent applications, AMBI shall ensure that
none of A&B's PROPRIETARY INFORMATION is disclosed in the specification or in
subsequent communications
9
with the relevant patent office without the express written consent of A&B.
5.5 The parties agree that A&B will have the non-exclusive right to use
any such inventions, modifications, or improvements, whether or not patented,
without payment or limitation, in the development, manufacture, use, and sale of
the EXCLUDED PRODUCTS in accordance with the terms and conditions of the AMBI
License Agreement.
5.6 Upon A&B's request, AMBI shall provide a detailed description of any
such invention, modification, or improvement sufficient to enable A&B to use the
same in the development, manufacture, use, and sale of the EXCLUDED PRODUCTS.
5.7 The parties agree that A&B will have the non-exclusive right to use,
without limitation, any inventions, modifications, or improvements to, or new
applications of, the PROPRIETARY INFORMATION, TECHNICAL INFORMATION, or PATENTED
TECHNOLOGY in which AMBI has or obtains rights arising from research contracted,
commissioned, directed, or funded by AMBI ("Contracted Research"), including,
without limitation, Contracted Research to improve yields and to develop nisin
variants, that is reasonably applicable, in AMBI's opinion, to the EXCLUDED
PRODUCTS, to the extent permitted and in accordance with the terms and
conditions of the AMBI License Agreement and the terms and conditions of the
Contracted Research. A&B will have no responsibility for any payments for such
Contracted Research other than those required under the terms and conditions of
the Contracted Research or which have been separately approved by A&B, such
payments not being subject to any surcharge by AMBI. AMBI further agrees that it
will keep A&B informed regarding the scope and objectives of the Contracted
Research, and results from such Contracted Research, that are reasonably
applicable to the EXCLUDED PRODUCTS.
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5.8 With respect to inventions, modifications, or improvements for which
AMBI is obligated to provide notice to A&B under paragraph 5.1, the parties
agree that A&B will have the non-exclusive right to review and use data or other
information developed during any experimental, clinical, qualification,
regulatory, or other testing, relating to any improvements to or new
applications of the PROPRIETARY INFORMATION, TECHNICAL INFORMATION, or PATENTED
TECHNOLOGY including, without limitation, toxicological evaluations, performed
by, or on behalf of, AMBI, without payment or limitation, in the development,
manufacture, use, approval, qualification, or sale of the EXCLUDED PRODUCTS in
accordance with the terms and conditions of the AMBI License Agreement.
5.9 A&B agrees to hold information or data received from AMBI in
accordance with paragraphs 5.7 or 5.8 as AMBI's PROPRIETARY INFORMATION in
accordance with the provisions of the AMBI License Agreement. After any such
information is published, or otherwise becomes publicly available, such
information will no longer be considered AMBI's PROPRIETARY INFORMATION.
6 CONFIDENTIALITY
6.1 AMBI recognizes that A&B's PROPRIETARY INFORMATION is critical to the
business of A&B and that A&B would not enter into this Agreement without
assurance that such PROPRIETARY INFORMATION and the value thereof will be
protected as provided in this Section 6 and elsewhere in this Agreement.
Accordingly, AMBI agrees as follows:
6.2 AMBI shall hold A&B's PROPRIETARY INFORMATION in confidence and to
take all precautions with respect thereto as AMBI employs with respect to its
own confidential materials.
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6.3 AMBI shall not divulge, release, disseminate, or otherwise disclose
any PROPRIETARY INFORMATION, or any information derived therefrom, to any third
party, except as permitted under and in accordance with paragraph 2.2.
6.4 Notwithstanding the foregoing, the preceding covenants shall not apply
to any PROPRIETARY INFORMATION which AMBI can establish:
6.4.1 Is in or (through no improper action or inaction by the AMBI,
its agents or employees) enters the public domain;
6.4.2 Was rightfully in AMBI's possession or known by it prior to
receipt from A&B;
6.4.3 Was rightfully disclosed to AMBI by a third party without
restriction, however, A&B considers all previous transfers of PROPRIETARY
INFORMATION from A&B to AMBI to have been confidential; or
6.4.4 Was independently developed by AMBI without access to or use
of any of A&B's PROPRIETARY INFORMATION.
6.5 Immediately upon termination of AMBI's license under paragraph 7.3,
AMBI will turn over to A&B all documents or media containing any PROPRIETARY
INFORMATION and any and all copies or extracts thereof and will make no further
use of any kind of any of A&B's PROPRIETARY INFORMATION.
6.6 AMBI acknowledges and agrees that due to the unique nature of A&B's
PROPRIETARY INFORMATION, there can be no adequate remedy at law for any breach
of its obligations hereunder, that any such breach may result in irreparable
harm to A&B and therefore, that upon any such breach or any threat
12
thereof, A&B shall be entitled to appropriate equitable relief in addition to
whatever remedies it might have at law.
7 TERM AND TERMINATION
7.1 This Agreement will remain in effect unless terminated pursuant to
paragraph 7.2
7.2 If a party intentionally, willfully, or through its gross negligence,
materially breaches a material provision of this Agreement, the other party may
terminate this Agreement upon 60 days prior written notice unless the breach is
cured within such period or, if the breach cannot reasonably be so cured,
diligent efforts to effect such cure are commenced during that period and are
continued in a diligent manner until the cure is completed, which shall be
within a reasonable time.
7.3 In the event of any termination of this Agreement due to a breach by
AMBI under paragraph 7.2, the rights and licenses granted AMBI under this
Agreement, including all sublicenses, shall terminate but AMBI's obligations
under Section 6, as well as obligations imposed on AMBI's sublicensees under
paragraph 2.2, to maintain the confidentiality of A&B's PROPRIETARY INFORMATION
and TECHNICAL INFORMATION shall survive such termination for a period of five
(5) years thereafter; and further provided that if the termination is on account
of a breach by A&B, the rights and licenses granted AMBI in Section 2, and
disclosures made or sublicenses granted by AMBI in accordance with this
Agreement, will continue for all PROPRIETARY INFORMATION, PATENTED TECHNOLOGY,
and TECHNICAL INFORMATION licensed as of the termination date, provided that any
such disclosure or sublicense, according to its terms, (i) was properly granted,
(ii) A&B will have no further obligation thereunder, (iii) all the restrictions
and limitations of this Agreement shall continue to apply to such disclosure or
13
sublicense as though this Agreement continued in effect, and (iv) A&B shall be
entitled to require AMBI to terminate such disclosures or sublicenses on the
same basis as is provided herein for termination of this Agreement.
7.4 Neither party shall incur any liability whatsoever for any damage,
loss or expenses of any kind suffered or incurred by the other arising from or
incident to any termination of this Agreement (or any part thereof) other than
that provided for in paragraph 6.7.
8 REPRESENTATIONS AND WARRANTIES
8.1 A&B represents and warrants that it has full power, authority and
legal right to enter into and perform this Agreement and to grant to AMBI the
rights and licenses set forth herein; that the execution, delivery and
performance of this Agreement have been duly authorized by all necessary
corporate action on its part; and that the execution, delivery and performance
of this Agreement do not contravene any law, governmental rule, regulation or
order binding on A&B or contravene its charter or by-laws or any material
indenture, mortgage or contract or other agreement to which it is a party or by
which it is bound and which could reasonably be expected to have a material
adverse effect on the ability of A&B to fulfill its obligations under the
Agreement.
8.2 AMBI represents and warrants that it has full power, authority and
legal right to enter into and perform this Agreement; that the execution,
delivery and performance of this Agreement have been duly authorized by all
necessary corporate action on its part; and that the execution, delivery and
performance of this Agreement do not contravene any law, governmental rule,
regulation or order binding on AMBI or contravene its charter or by-laws or any
material indenture,
14
mortgage or contract or other agreement to which it is a party or by which it is
bound and which could reasonably be expected to have a material adverse effect
on the ability of AMBI to fulfill its obligations under the Agreement.
8.3 A&B represents and warrants that A&B owns all right, title and
interest in and to the PROPRIETARY INFORMATION and PATENTED TECHNOLOGY and that
the possession and use of the PROPRIETARY INFORMATION and PATENTED TECHNOLOGY
does not infringe any existent patent, known trade secret, or other intellectual
property right of any third party. The warranty provided by this Section 8 does
not extend to claims based on modifications to the PROPRIETARY INFORMATION and
PATENTED TECHNOLOGY by any party other than A&B nor to any use by AMBI in a
manner inconsistent with this Agreement.
9 INFRINGEMENT MATTERS
9.1 In the event that any claim of infringement arises from AMBI's use of
the PROPRIETARY INFORMATION and PATENTED TECHNOLOGY in the manufacture of the
LICENSED PRODUCTS and licensed as of the date of this Agreement, A&B will be
solely responsible for expenses incurred in defending or settling any such
action. In the event AMBI is notified of any such claim of infringement, AMBI
must give written notice to A&B within ten (10) days of such notice for this
paragraph to be operative.
9.2 In the event that any claim of infringement arises from AMBI's use of
the PROPRIETARY INFORMATION and PATENTED TECHNOLOGY in the manufacture of the
LICENSED PRODUCTS, AMBI will cooperate in A&B's defense of any such action by
making its records and personnel reasonably available at times, places, and in a
manner mutually acceptable to the parties.
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10 MISCELLANEOUS
10.1 INCIDENTAL AND CONSEQUENTIAL DAMAGES - EXCEPT AS OTHERWISE SET FORTH
IN SECTION 9, NEITHER PARTY WILL BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE,
STRICT LIABILITY OR OTHER THEORY FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES
WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT. THIS PARAGRAPH SHALL NOT
BE READ OR INTERPRETED TO EXCLUDE, RESTRICT, OR LIMIT EITHER PARTY'S LIABILITY
FOR DEATH OR PERSONAL INJURY RESULTING FROM ITS NEGLIGENCE.
10.2 Independent Contractors - The parties are independent contractors and
not partners, joint venturers or otherwise affiliated and neither has any right
or authority to bind the other in any way.
10.3 Assignment - The rights and obligations of the parties under this
Agreement, may be assigned or transferred to affiliates or subsidiaries 1) in
which a party maintains a controlling interest, 2) which, with a party, are both
under the common control of a third party (e.g. Xxxxx Xxxxx), or 3) to
successors to the parties' business interests by the sale or merger of
substantially all of AMBI's assets relating to the LICENSED PRODUCTS or by the
sale or merger of substantially all of A&B's assets relating to the EXCLUDED
PRODUCTS.
10.4 Amendment and Waiver - Except as otherwise expressly provided herein,
any provision of this Agreement may be amended and the observance of any
provision of this Agreement may be waived (either generally or any particular
instance and either retroactively or prospectively) only with the written
consent of the parties, such amendments and waivers not to be unreasonably
refused.
10.5 Resolution of Disputes.
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10.5.1 Negotiation Between Executives - The parties shall attempt in
good faith to resolve any dispute arising out of or relating to this
Agreement, or the breach, termination or validity thereof, by negotiations
between executives who have authority to settle the controversy. Any party
may give the other party written notice of any dispute not resolved in the
normal course of business. Within 20 days after delivery of such notice,
executives of both parties shall meet at a mutually acceptable time and
place, and thereafter as often as they reasonably deem necessary, to
exchange relevant information and to attempt to resolve the dispute. If
the matter has not been resolved within 60 days of the disputing party's
notice, or if the parties fail to meet within 20 days, either party may
initiate arbitration of the controversy or claim as provided hereinafter.
If a negotiator intends to be accompanied at a meeting by an
attorney, the other negotiator shall be given at least three working days'
notice of such intention and may also be accompanied by an attorney. All
negotiations pursuant to this clause are confidential and shall be treated
as compromise and settlement negotiations for purposes of the Federal
Rules of Evidence and state rules of evidence.
10.5.2 Arbitration - If a dispute arising out of or relating to this
Agreement, or the breach, termination or validity thereof, has not been
resolved by negotiation as provided herein, it shall be settled by
arbitration in accordance with the Center for Public Resources Institute
for Dispute Resolution Rules for Non-Administered Arbitration of Business
Disputes. The arbitration shall take place in New York City, New York,
shall be governed by the United States Arbitration Act, 9 U.S.C.
Sections 1-16, and
17
judgment upon the award rendered by the arbitrator may be entered by any
court having jurisdiction thereof.]
10.6 Governing Law and Legal Actions - This Agreement shall be governed by
and construed under the laws of the State of New York and the United States
without regard to conflicts of laws provisions thereof and without regard to the
United Nations Convention on Contracts for the International Sale of Goods.
10.7 Jurisdiction and Venue - The parties agree not to contest personal
jurisdiction and further agree that any action initiated relating to this
Agreement shall be filed in the United States District Court for the Southern
District of New York.
10.8 Headings - Headings and captions are for convenience only and are not
to be used in the interpretation of this Agreement.
10.9 Notices - Notice under this Agreement shall be sufficient only if
personally delivered, delivered by a major commercial rapid delivery courier
service, or mailed by certified or registered mail, return receipt requested to
a party at its addresses set forth in the signature block below or as amended by
notice pursuant to this subsection.
10.10 Entire Agreement - This Agreement supersedes all proposals, oral or
written, all negotiations, conversations, or discussions between or among the
parties relating to the subject matter of this Agreement and all past dealing or
industry custom.
10.11 WARRANTY DISCLAIMER - EXCEPT AS OTHERWISE SET FORTH HEREIN, A&B
MAKES NO WARRANTY WITH RESPECT TO ANY TECHNOLOGY, GOODS, SERVICES, RIGHTS OR
OTHER SUBJECT MATTER OF THIS
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AGREEMENT AND HEREBY DISCLAIMS WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
10.12 Force Majeure - Neither party hereto shall be responsible for any
failure to perform its obligations under this Agreement if such failure is
caused by acts of God, war, strikes, revolutions, lack or failure of
transportation facilities, laws or governmental regulations or other causes
which are beyond the reasonable control of such party. Obligations hereunder,
however, shall in no event be excused but shall be suspended only until the
cessation of any cause of such failure. In the event that such force majeure
should obstruct performance of this Agreement for more than six (6) months, the
parties hereto shall consult with each other to determine whether this Agreement
should be modified. The party facing an event of force majeure shall use its
best endeavors in order to remedy that situation as well as to minimize its
effects. A case of force majeure shall be notified to the other party by telex
or telefax within five (5) days after its occurrence and shall be confirmed by a
letter.
10.13 Severability - If any provision of this Agreement is held illegal,
invalid or unenforceable by a court of competent jurisdiction, that provision
will be limited or eliminated to the minimum extent necessary so that this
Agreement shall otherwise remain in full force and effect and enforceable.
LICENSEE:
APPLIED MICROBIOLOGY, INC.
By: _____________________________
Xxxxxxxx Xxxxx
Title: Vice President
Address: Applied Microbiology, Inc.
00
Xxx Xxx Xxxx Xxxxx Xxxx
Xxxxxxxxx, XX 00000
U.S.A.
Attn: Xxxxxxxx Xxxxx, Esq.
With Copy: Xxxxxxx, Xxxxxxx & Xxxxxxxx
LLP
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxxxxx,
Esq.
Fax: (000) 000-0000
20
LICENSOR:
XXXXX & XXXXXXX, LIMITED
By: ______________________________
Xxxxxxxx Xxxxx
Title: Lawful Attorney
Address: Xxxxx & Xxxxxxx Limited
00 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxx
XX0 0XX
Xxxxxxx
Attn: Dr. Xxxxxx Xxxxx
With Copy: Xxxxx Xxxxx & Co. Ltd.
0 Xxxxxx Xxxxxx
Xxxxxx, XXX 0000, Xxxxxxxxx
Attn: The Company Secretary
Fax: 00 0 0000 0000
21
EXHIBIT A-1
LICENSED PRODUCTS
Pharmaceutical Products
Animal Healthcare Products
Deodorant Products
Cosmetic Preservatives
Hygiene Products
Environmental Sanitizers
NISIN PREPARATIONS for incorporation in LICENSED PRODUCTS
22
EXHIBIT A-2
EXCLUDED PRODUCTS
NISIN PREPARATIONS for incorporation into EXCLUDED PRODUCTS
Food Additives for food preservation
Food Preservatives
Food Preservation Methods
23
