EXHIBIT 10.4
LICENSE AGREEMENT
THIS AGREEMENT is effective as of the 30th day of September, 2003 (the
"EFFECTIVE Date"), between CALIFORNIA INSTITUTE OF TECHNOLOGY, 0000 Xxxx
Xxxxxxxxxx Xxxxxxxxx, Xxxxxxxx, XX 00000 ("CALTECH") and Universal Detection
Technologies ("Licensee"), a corporation having a place of business at 0000
Xxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxx Xxxxx, XX 00000.
WHEREAS, Licensee is desirous of obtaining, and Caltech wishes to grant to
Licensee, an exclusive license to certain Exclusively Licensed Patent Rights and
a nonexclusive license under the Technology, all relating to the aforementioned
research and as further defined below;
NOW, THEREFORE, the parties agree as follows:
ARTICLE 1 DEFINITIONS
1.1 "AFFILIATE" means any corporation, limited liability company or other
legal entity which directly or indirectly controls, is controlled by, or is
under common control with Licensee as of the Effective Date of this Agreement.
For the purpose of this Agreement, "control" shall mean the direct or indirect
ownership of at least fifty-one percent (51 %) of the outstanding shares on a
fully diluted basis or other voting rights of the subject entity to elect
directors, or if not meeting the preceding, any entity owned or controlled by or
owning or controlling at the maximum control or ownership right permitted in the
country where such entity exists. In addition, a party's status as an Affiliate
of License shall terminate if and when such control ceases to exist.
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1.2 "TECHNOLOGY" means any Technology, in the form existing as of the
Effective Date, meeting any of the following criteria: (a) such Technology is
specifically listed in Exhibit B; (b) such Technology is necessary for the
development of Licensed Products; and (c) such Technology is not covered by any
claim of the Exclusively Licensed Patent Rights or Technology includes all
proprietary information, know-how, procedures, methods, prototypes, designs
existing M of the Effective Date that is requested by Licensee and consented to
by Caltech.
1.3 "CALTECH TECHNOLOGY" means the Exclusively Licensed Patent Rights and
the Technology.
1.4 "DEDUCTIBLE EXPENSES" means the following expenses incurred in
connection with sales or licensing of Licensed Products to the extent actually
paid by Licensee or an Affiliate in accordance with generally recognized
principles of accounting: (a) sales, use or turnover taxes; (b) excise, value
added or other, taxes or custom duties; (c) transportation, freight, and
handling charges, and insurance on shipments to customers; (d) trade, cash or
quantity discounts or rebates to the extent actually granted; (e) agent fees or
commissions; and (f) rebates, refunds, and credits for any rejected or returned
Licensed Products or because of retroactive price reductions, rebates or
chargebacks.
1.5 "EFFECTIVE DATE" has the meaning set forth in the preamble.
1.6 "EXCLUSIVELY LICENSED PATENT RIGHTS" means Caltech's rights under: (a)
all patents and patent applications listed in Exhibit A attached hereto as
further defined in Exhibit I attached hereto; (b) any patents issuing therefrom,
and (c) any patents or patent applications claiming a right of priority thereto
(including reissues, reexaminations, renewals, extensions, divisionals,
continuations, continued prosecution applications, continuations-in-part and
foreign
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counterparts of any of the foregoing). RIGHTS UNDER (A), (B) AND (C) OF THIS
PARAGRAPH TO SUBJECT MATTER AND CLAIMS RELATED TO NPO-30444 ARE EXPRESSLY
EXCLUDED.
1.7 "FIELD" means detection of pathogens, spores, and biological warfare
agents.
1.8 "LICENSED PRODUCT" means any product, device, system, article of
manufacture, composition of matter, or process or service in the Field that is
covered by, or is made by a process covered by, any Valid Claim of the
Exclusively Licensed Patent Right or that utilizes Technology in material part.
1.9 "NET REVENUES" means all amounts received by Licensees and/or its
Affiliates from the sale, licensing, or other distribution (whether commercial
or not) to other parties of Licensed Products, less Deductible Expenses. Net
Revenues shall exclude sales to the United States Government.
1.10 "PRODUCT LIABILITY CLAIMS" has the meaning set forth in Section 13.1
1.11 "VALID CLAIM" means: (a) a claim of an issued patent within the
Exclusively Licensee Patent Rights that has not (i) expired or been canceled,
(ii) been finally adjudicated to be invalid or unenforceable by a decision of a
court or other appropriate body of competent jurisdiction (and from which no
appeal is or can be taken), (iii) been admitted to be invalid or unenforceable
through reissue, disclaimer or otherwise, or (iv) been abandoned in accordance
with or as permitted by the terms of this Agreement or by mutual written
agreement; or (b) a claim included in a pending patent application within the
Exclusively Licensed Patent Rights which claim is being actively prosecuted in
accordance with this Agreement and which has not been (i) canceled, (ii)
withdrawn from consideration, (iii) finally determined to be unallowable by the
applicable governmental authority (and from which no appeal is or can be taken),
or (iv)
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abandoned in accordance with or as permitted by the terms of this Agreement or
by mutual written agreement.
ARTICLE 2 LICENSE GRANT
2.1 GRANT OF RIGHTS. Caltech hereby grants to Licensee the following
licenses:
(a) an exclusive, royalty-bearing license under the Exclusively
licensed Patent Rights to make, have made, import, use, sell, and offer for
sale, licensed Products in the Field throughout the world; and
(b) a nonexclusive, royalty-bearing license under the Technology to
make, have made, import, use, sell, offer for sale, reproduce, distribute,
display, perform, create derivative works of, and otherwise exploit Licensed
Products in the Field throughout the world.
These licenses are personal to and nontransferable by Licensee, except as
provided in Section 14.9.
2.2 RESERVATION OF RIGHTS; GOVERNMENT RIGHTS. These licenses are subject
to: (a) the reservation of Caltech's right to make, have made, import, use, sell
and offer for sale Licensed Products for noncommercial educational and research
purposes, but not for commercial sale or other commercial distribution to third
parties; and (b) any existing right of the U.S. Government under Xxxxx 00,
Xxxxxx Xxxxxx Code, Section 200 et seq. and under 37 Code of Federal
Regulations, Section 401 et seq., including but not limited to the grant to the
U.S. Government of a nonexclusive, nontransferable, irrevocable, paid-up license
to practice or have practiced any invention conceived or first actually reduced
to practice in the performance of work for or on behalf of the U.S. Government
throughout the world.
Licensee agrees that all Licensed Products covered by an Exclusively
Licensed Patent Right, and to be sold, licensed, distributed or used by or on
behalf of Licensee or its Affiliates in
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the United States, shall be manufactured substantially in the United States to
the extent (if at all) required by 35 U.S.C, Section 204.
Rights not explicitly granted herein are reserved by Licensor.
2.3 SUBLICENSING. Licensee has the right hereunder to grant sublicenses to
third parties, out sublicensees shall not have the right to grant further
sublicenses, and the sublicenses may be of no greater scope than the licenses
under Sections 2.1 and 2.2.
Licensee shall include all its sublicensing income in Licensee's reports to
Caltech, as provided in Paragraph 5.11, and Licensee shall pay royalties thereon
pursuant to Paragraph 5.1.
Licensee shall not receive, or agree to receive, anything of value in lieu
of cash or equity as Net Revenues from a third party under a sublicense granted
pursuant to this Paragraph 2.3, without Caltech's express prior written
permission which shall not be unreasonably withheld. In such cash, the non-cash
Net Revenue received will be detained based on the fair market value or a value
mutually agreed upon.
Licensee shall furnish Caltech within thirty (30) days of the execution
thereof a true and complete copy of each sublicense and any changes or additions
thereto.
Any sublicenses granted by Licensee shall survive termination of the
licenses granted in Section 2.1, or of this Agreement, provided that the
following conditions are met as of the date of such termination: (a) the written
agreement between Licensee and sublicensee pursuant to which the sublicense was
granted (i) obligates the sublicensee to thereafter render to Caltech all
sublicense royalties or other sublicense-related consideration that the
sublicensee would have owed to Licensee under the sublicense, (ii) names Caltech
as a third party beneficiary, and (iii) affirms that Licensee shall remain
responsible for all obligations to sublicensee (other than those requiring
Licensee to hold a license under the Exclusively Licensed Patent Rights or
Technology,
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unless Caltech (at its discretion) elects to assume such obligations; and (b)
Licensee informs the sublicensee in writing (with a copy to Caltech) that the
sublicensee's obligations pursuant to (a) are in effect as a result of the
termination.
2.4 NO OTHER RIGHTS GRANTED. The parties agree that neither this Agreement,
nor any action of the parties related hereto, may be interpreted as conferring
by implication, estoppel or otherwise, any license or rights under any
intellectual property rights of Caltech other than as expressly and specifically
set forth in this Agreement, regardless of whether such other intellectual
property rights are dominant or subordinate to the Exclusively Licensed Patent
Rights.
2.5 PREFERENTIAL PURCHASER STATUS. Caltech shall be entitled to purchase
licensed products, from Licensee for educational, research or other
noncommercial purposes on pricing terms that are at least as favorable as any
commercial pricing made available by Licensee to any third party.
ARTICLE 3
DISCLOSURE AND DELIVERY
3.1 EXCLUSIVELY LICENSED PATENT RIGHTS. On or before the one month
anniversary of the Effective Date, Caltech shall promptly disclose and deliver
to Licensee copies of all patent applications and/or issued patents within the)
Exclusively Licensed Patent Rights, including all patent office correspondence
related thereto.
3.2 TANGIBLE EMBODIMENT. On or before the one month anniversary of the
Effective Date, Caltech shall promptly disclose and deliver to licensee any
tangible embodiments as of the Effective Date of: (a) the inventions covered by
the Exclusively Licensed Patent Nights; and (b) the Technology. Such disclosure
and delivery may occur in writing, orally, and/or in other tangible or
intangible form, as appropriate to the subject matter thereof.
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ARTICLE 4
PROSECUTION OF PATENT APPLICATIONS AND
PAYMENT OF PATENT COSTS
4.1 PROSECUTION BY CALTECH. Caltech shall use reasonable efforts,
consistent with its normal practices, to: prosecute any and all patent
application(s) in connection with the Exclusively Licensed Patent Rights.
Licensee may recommend patent counsel for this purpose. Caltech shall permit
licensee and its appointed counsel to review all patent applications and claims
made therein, and Caltech shall make reasonable efforts to implement
improvements thereto may be requested by Licensee prior to filing.
4.2 PROSECUTION BY LICENSEE. If Caltech declines to file, prosecute or
maintain any patent application or patent referred to in Section 4.1, then
Licensee may elect to assume responsibility for such filing, prosecution or
maintenance at its expense in Caltech's name. Caltech agrees to fully cooperate
with Licensee in filing, prosecuting, and maintaining any such patent
applications and patents, and Caltech agrees to execute any documents as shall
be necessary for such purpose, and not to impair in any way the patentability of
any of the foregoing.
4.3 PATENT COSTS. Except as specified in the next paragraph, Licensee shall
reimburse Caltech for all reasonable expenses (including attorneys' fees)
incurred by Caltech for the filing, prosecution and maintenance, interference
and/or reexamination proceedings, of patents pursuant to Sections 4.1 or 4.2,
within thirty (60) days following receipt by Licensee from Caltech of an invoice
covering such fees (including copies of invoices for legal fees describing the
legal services performed in reasonable detail); If Licensee fails to pay such
invoice, Caltech will notify Licensee and Licensee shall pay the invoice within
thirty (30) days of receipt of Caltech's notification. One hundred percent
(100%) of the amounts expended by Caltech in connection with foreign patent
costs shall be creditable against earned royalties due Caltech in the respective
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territory covered by the patent or patents that are foreign filed. ALL AMOUNTS
OWED BY LICENSEE FOR THE REIMBURSEMENT OF PATENT EXPENSES INCURRED PRIOR TO THE
EFFECTIVE DATE OF THIS AGREEMENT STALL BE DUE WITHIN SIXTY (120) DAYS OF THE
EFFECTIVE DATE OF THIS AGREEMENT.
Licensee may elect not to pay the foregoing patent costs and fees with
respect to a Particular patent application or patent. In the event that Licensee
elects not to pay any of the forgoing costs and fees with respect to a
particular application or patent, Caltech, may, at its option, continue such
prosecution or maintenance, although any patent or patent application resulting
from such prosecution or maintenance will thereafter no longer be subject to
license hereunder.
ARTICLE 5
ROYALTIES
5.1 TIMING AND COMPUTATION. All royalties hereunder shall be computed on a
quarterly basis with respect to the Effective Date. Royalties for each such
quarter shall be due and payable within thirty (30) days after the end of such
quarter.
5.2 VALID CLAIMS. For any country in which the Exclusively Licensed Patent
Rights includes a Valid Claim, Licensee shall pay Caltech a royalty of FOUR
PERCENT (4%) OF NET REVENUES attributable to each Licensed Product made, sold,
licensed, distributed or used, by or on behalf of Licensee or its Affiliates, in
such country.
5.3 TECHNOLOGY. For any country in which the Exclusively Licensed Patent
Rights do not include a Valid Claim, Licensee shall pay Caltech a royalty of TWO
PERCENT (2%) OF NET REVENUES for each Licensed Product made, sold, licensed,
distributed or used, by or on behalf of Licensee or its Affiliates for a period
of seven (7) years from a first commercial sale.
5.4 BUNDLED PRODUCTS AND SERVICES. In the event that Licensed Products are
sold, licensed, distributed or used in combination with one or more other
products or services which
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are not Licensed Products, the Net Revenues for such combination products will
be calculated on a country-by-country basis by multiplying actual net sales
(calculated on the basis as if they were Net Revenues) of such combination
products by the fraction A/(A+B) where A is the average invoice price, during
the relevant quarterly period, of the Licensed Product when sold or licensed
separately by Licensee or a Affiliate, and B is the average invoice price during
such period of any other product(s) or services in the combination when sold or
licensed separately by Licensee or an Affiliate. If the products or services in
the combination that are not Licensed Products have not been sold or licensed
separately by licensee or a Affiliate in the relevant quarterly period, Net
Revenues shall be calculated by multiplying actual net sales (calculated on a
basis as if they were Net Revenues) of such combination products by the fraction
A/C where A is the average invoice price, during the last quarterly period, of
the Licensed Product when sold or licensed separately and C is the average
invoice price of the combination product during such period. If the Licensed
Product has not been sold or licensed separately by Licensee or a Affiliate in
the last quarterly period, regardless whether the combination product without
the Licensed Product is sold or licensed separately, Net Revenues shall be
calculated as in the immediately preceding sentence except that A shall be the
total manufacturing cost of Licensed Product and C shall be the total
manufacturing cost of the combination.
5.5 SUBLICENSING ROYALTIES. Licensee shall pay Caltech THIRTY FIVE PERCENT
(35%) OF THE NET REVENUES (including payments for technical assistance and the
like) that Licensee receives from sublicensing with respect to Licensed Products
Such Net Revenues specifically shall not include payments made by a sublicensee
solely in consideration of: (a) equity or debt securities of Licensee; (b) to
support research or development activities to be undertaken by Licensee; (c)
upon the achievement by Licensee of specified milestones or, benchmarks
relating,
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to the development of Licensed Products; (d) pilot studies; (e)
performance-based milestones (excluding milestones tied to sales or marketing
performance, which shall be subject to the percentage-based payments to
Caltech); (f) the license or sublicense of any intellectual property other than
Caltech Technology; (g) products other than Licensed Products; or (h)
reimbursement for patent or other expenses.
5.6 MINIMUM ANNUAL ROYALTIES. A minimum annual royalty of TEN THOUSAND
DOLLARS ($10,000.00) IS DUE CALTECH ON AUGUST 1, 2005 AND EACH ANNIVERSARY
thereof. Any royalties paid under Sections 5.2, 5.3, 5.4 and 5.5 for the
one-year period preceding the date of payment of the minimum annual royalty
shall be creditable against the annual minimum. Caltech shall have the right to
terminate this Agreement pursuant to Section 10.2 for failure to pay such
minimum annual royalty.
5.7 THIRD PARTY ROYALTY OFFSET. If Licensee or an Affiliate is required to
make any payment (including, but not limited to, royalties or other license
fees) to one or more third parties to obtain a patent license in the absence of
which it could not legally make, import, use, sell, or offer for sale Licensed
Products in any country, and Licensee provides Caltech with reasonably
satisfactory evidence of such third-party payments, such third-party payments
shall be fully creditable against royalties owed to Caltech hereunder, provided
that in no one year shall the aggregate of all such expenses be credited against
more than twenty-five percent (25%) of royalty payments to Caltech. Any greater
amount of such expenses may be carried over and credited against royalties owed
in future years, subject in every case to the 25% annual cap for that year.
5.8 CURRENCY CONVERSION. For the purpose of determining royalties payable
under this Agreement, any royalties or other revenues Licensee receives from
sublicensees in
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currencies other than U.S. dollars and any Net Revenues denominated in
currencies other than U.S. dollars shall be converted into U.S. dollars
according to the noon buying rate of the Federal Reserve Bank of New York on the
last business day of the quarterly period for which such royalties are
calculated.
5.9 CONVENIENCE OF THE PARTIES. Caltech and Licensee acknowledge that each
of the royalties set forth in this Article 5 represents an integrated royalty
established for the convenience of the parties in order to avoid the technical,
legal and accounting complexities of analyzing and apportioning the relative
contributions of the various forms of patent, copyright, and/or trade secret
rights licensed to, and the various forms of technical assistance (if any)
provided to, Licensee in connection with the Licensed Products.
5.10 RECORDKEEPING AND AUDITS. Licensee shall keep complete and accurate
production and accounting records relating to commercialization (including via
sublicensing) of Licensed Products. Caltech shall be entitled to have an
independent CPA periodically audit such records, during Licensee's normal
business hours, to determine Licensee's compliance with the provisions of this
Article 5. Licensee shall reimburse Caltech 100% of any unpaid royalties
resulting from any noncompliance discovered as a result of any such audit; and
Licensee shall also pay Caltech an additional 150% of the entire amount of any
underpayment exceeding 10% of the corresponding amount previously paid. Such
audits shall be at Caltech's expense, and shall occur no more than once
annually, except that in the case of any underpayment exceeding 20% of the
amount actually paid, Licensee, shall reimburse Caltech for the cost of such
audit.
5.11 Royalties due under this Article 5 shall be payable on a
country-by-country and Licensed Product-by-Licensed Product basis until the
expiration of the last-to-expire issued Valid Claim covering such Licensed
Product in such country, or if no such patent has previously issued
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in a country, until the fifth anniversary of the first commercial sale of
Licensed Product in any country.
5.12 Notwithstanding the provisions of this Article 5, no royalty shall be
payable to Caltech with respect to any sales of Licensed Products on sales made
solely to permit the U.S. Government to practice or have practiced on its behalf
any invention or process covered by Caltech Technology.
5.13 NO MORE THAN ONE ROYALTY PAYMENT SHALL BE DUE WITH RESPECT TO A SALE
OF A PARTICULAR LICENSED PRODUCT. NO MULTIPLE ROYALTIES SHALL BE PAYABLE BECAUSE
ANY LICENSED PRODUCT, OR ITS MANUFACTURE, SALE OR USE IS COVERED BY MORE THAN
ONE VALID CLAIM IN A GIVEN COUNTRY. NO ROYALTY SHALL BE PAYABLE UNDER THIS
ARTICLE 5 WITH RESPECT TO LICENSED PRODUCTS DISTRIBUTED FOR USE IN RESEARCH
AND/OR DEVELOPMENT OR AS PROMOTIONAL SAMPLES OR OTHERWISE DISTRIBUTED WITHOUT
CHARGE TO THIRD PARTIES.
ARTICLE 6
LICENSEE EQUITY INTEREST
6.1 COMMON STOCK GRANT. Licensee agrees to irrevocably issue to Caltech, in
Partial Consideration of Licensee's receipt of the licenses granted under this
Agreement, two hundred thousand (200,000) shares of common stock of Licensee
pursuant to are agreed upon stock purchase agreement between Licensee and
Caltech. The shares will be restricted according to the following table and all
sales will be subject to applicable securities laws:
on the 2nd year anniversary of the Effective Date, 100,000 become
unrestricted;
on the 3rd year anniversary of the Effective Date, 150,000 become
unrestricted; and
on the 4th year anniversary of the Effective Date, 200,000 become
unrestricted.
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ARTICLE 7
DUE DILIGENCE
7.1 COMMERCIALIZATION. Licensee agrees to use its best efforts to
commercially introduce Licensed Product(s) in the Field as soon as practicable.
Licensee shall be deemed to have satisfied its obligations under this Section
7.1 if Licensee has an ongoing and active research, development or marketing
program (as appropriate to the stage of development of the technology in
question), directed primarily toward commercial production and use of one or
more Licensed Products in a manner consistent with the normal business practices
of other commercial entities (if any) who are active in the Field. Any efforts
of Licensee's Affiliates or sublicensees shall be considered efforts of Licensee
for the sole purpose of determining Licensee's compliance with its obligation
under this Section 7.1.
7.2 REPORTING. On each yearly anniversary of the Effective Date, Licensee
shall issue to Caltech a detailed written report on its progress in introducing
commercial Licensed Product(s). Such report shall be considered confidential
information of licensee subject to Article 11.
7.3 FAILURE TO COMMERCIALIZE. If Licensee is not fulfilling its obligations
under Section 7.1 with respect to the Field in any country, and Caltech so
notifies Licensee in writing, Caltech and Licensee shall negotiate in good faith
any additional efforts to be taken by Licensee. If the parties do not reach
agreement within thirty (30) days of Caltech's written notice, the parties shall
submit the issue to arbitration as provided in Article 12.
ARTICLE 8
LITIGATION
8.1 ENFORCEMENT. Both Caltech and Licensee agree to promptly notify the
other in writing should either party become aware of possible infringement by a
third party of the Exclusively Licensed Patent Rights in any part of the Field.
If Licensee has supplied Caltech
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with evidence of infringement of Exclusively Licensed Patent Rights, Licensee
may by notice request Caltech to take steps to enforce the Exclusively Licensed
Patent Rights. If Caltech does not, within sixty (60) days of the receipt of
such notice, initiate an action against the alleged infringer in the Field,
Licensee may upon notice to Caltech initiate such an action at Licensee's
expense, either in Licensee's name or in Caltech's name if so required by law.
Licensee shall be entitled to control any such action initiated by it.
8.2 OTHER DEFENSIVE LITIGATION. If a declaratory judgment action alleging
invalidity, unenforceability or noninfringement of any of the Exclusively
Licensed Patent Rights is brought against Licensee and/or Caltech, Licensee may
elect to control the defense of such action, and if Licensee so elects it shall
bear all the costs of the action. If mutually agreed between the parties,
Licensee may also undertake the defense of any interference, opposition or
similar procedure with respect to the Exclusively Licensed Patent Rights,
providing that Licensee bears all the costs thereof.
8.3 COOPERATION. In the event either party takes control of a legal action
or defense pursuant to this Sections 8.1 or 8.2, (thus becoming the Controlling
Party) the other party shall fully cooperate with and supply all assistance
reasonably requested by the Controlling Party instituting or carrying on such
action or defense, including by: (a) using commercially reasonable efforts to
have its employees consult and testify when requested; (b) making available
relevant records, papers, information, samples, specimens, and the like; and (c)
joining any such action in which it is an indispensable party. The Controlling
Party shall bear the reasonable expenses (including salary and travel costs)
incurred by the other party in providing, such assistance and cooperation. Each
party shall keep the other party reasonably informed of the progress of the
action or defense, and the other xxxxx shall be entitled to participate in such
action
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or defense at its own expense and using counsel of its choice. As a condition of
controlling any action or defense involving the Exclusively Licensed Patent
Rights pursuant to Sections 8.1 or 8.2, Licensee shall use its best efforts to
preserve the validity and enforceability thereof.
8.4 SETTLEMENT. If licensee controls any action or defense under Section
8.1 or 8.2, then Licensee shall have the right to settle any claims thereunder,
but only upon terms and conditions that are reasonably acceptable to Caltech.
Should Licensee elect to abandon such an action or defense other than pursuant
to a settlement with the alleged infringer that is reasonably acceptable to
Caltech, Licensee shall give timely advance notice to Caltech who, if it so
desires, may continue the action or defense.
8.5 RECOVERIES. Any amounts paid to licensee by third parties as the result
of an action or defense pursuant to Sections 8.1 or 8.2 (including in
satisfaction of a judgment or pursuant to a settlement) shall first be applied
to reimbursement of the unreimbursed expenses (including attorneys' fees and
expert fees) incurred by each party. Any remainder shall be divided between the
parties as follows:
(a) To the extent the amount recovered reflects Licensee's lost
profits or royalties, Licensee shall retain the remainder, less the amount of
any royalties that would have been due Caltech under Article 5 on account of
such lost profits or royalties, provided that (i) Licensee shall in any event
retain at least seventy percent (70%) of the remainder; and (ii) Caltech shall
receive an amount equal to the royalties it would have received if such sales
had been made by Licensee, provided such an amount shall in no event exceed
thirty percent (30%) of the remainder; and
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(b) To the extent the amount recovered does not reflect Licensee's
lost profits or royalties, seventy percent (70%) shall be paid to the party
controlling the action at the time of recovery, and thirty percent (30%) to the
other party.
8.6 INFRINGEMENT DEFENSE. If Licensee, its Affiliate or sublicensee,
distributor or other customer is sued by a third party charging infringement of
patent rights that cover a Licensed Product, Licensee will promptly notify
Caltech. Licensee will be responsible for the expenses of, and will be entitled
to control the defense or settlement of, any such action(s).
8.7 MARKING. Licensee agrees to xxxx the Licensed Products with the numbers
of applicable issued patents within the Exclusively Licensed Patent Rights,
unless such marking is commercially infeasible in accordance with normal
commercial practices in the Field, in which case the parties shall cooperate to
devise a commercially reasonable alternative to such marking.
8.8 EXPIRATION OR ABANDONMENT. In a case where one or more patents or
particular claims thereof within the Licensed Patent Rights expire, or are
abandoned, or are declared invalid or unenforceable by a court of last resort or
by a lower court from whose decree no appeal is taken, or certiorari is not
granted within the period allowed therefore, then the effect thereof hereunder
shall be.
(a) that such patents or particular claims shall, as of the date of
expiration or abandonment or final decision as the case may be, cease to be
included within the Licensed Patent Flights for the purpose of this Agreement;
and
(b) that such construction so placed upon the Licensed Patent Rights
by the court shall be followed from and after the date of entry of the decision,
and royalties shall thereafter be payable by Licensee only in accordance with
such construction.
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In the event that licensee challenges the validity of Licensed Patent
Rights, Licensee may not cease paying royalties as of the date validity of the
claims in issue are challenged, but rather may cease paying royalties as to
those claims only after a final adjudication of invalidity of those claims.
8.9 ADJUSTMENT. In the event that any of the contingencies provided for in
Paragraph 8.8 occurs, Caltech agrees to renegotiate in good faith with Licensee
a reasonable royalty rate under the remaining Licensed Patent Rights which are
unexpired and in effect and under which Licensee desires to retain a License.
8.10 IN THE EVENT LICENSEE OR SUBLICENSEE BECOMES OBLIGATED TO PAY AMOUNTS
TO A THIRD-PARTY WITH RESPECT TO A LICENSED PRODUCT FOR PATENT RIGHTS OR
TECHNOLOGY UTILIZED IN OR WITH SUCH LICENSED PRODUCT LICENSEE MAY DEDUCT
TWENTY-FIVE (25%) OF THE AMOUNTS OWING TO SUCH THIRD-PARTY (PRIOR TO REDUCTIONS)
FROM THE AMOUNT OWING TO CALTECH FOR SUCH LICENSED PRODUCT; PROVIDED, HOWEVER,
THE AMOUNTS OTHERWISE DUE TO CALTECH SHALL NOT BE SO REDUCED BY MORE THAN
TWENTY-FIVE PERCENT (25%).
8.11 THE ALLOWED REDUCTIONS SET FORTH IN SECTION 8.10 AND SECTION 5.7 SHALL
NOT EXCEED THIRTY-FIVE PERCENT (35%) OF THE SUMS OTHERWISE PAYABLE DURING ANY
YEAR.
ARTICLE 9
REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION
9.1 REPRESENTATIONS AND WARRANTIES OF CALTECH. Caltech hereby represents
and warrants to Licensee that as of the Effective Date:
(a) there are no outstanding exclusive licenses, exclusive options or
exclusive agreements of any kind relating to the Exclusively Licensed Patent
Rights, other than pursuant to this Agreement herein;
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(b) there are no liens, mortgages, or encumbrances of any kind or any
nature whatsoever against the Exclusively Licensed Patent Rights; and
(c) Caltech has the power to grant the rights, licenses and privileges
granted herein and can perform as set forth in this Agreement without violating
the terms of any agreement that Caltech has with any third party.
9.2 EXCLUSIONS. The parties agree that nothing in this Agreement shall be
construed as, and, CALTECH HEREBY DISCLAIMS, ANY EXPRESS OR IMPLIED
REPRESENTATION, WARRANTY, COVENANT, OR OTHER OBLIGATION:
(a) THAT ANY PRACTICE BY OR ON BEHALF OF LICENSEE OF ANY INTELLECTUAL
PROPERTY LICENSED HEREUNDER IS OR WILL BE FREE FROM INFRINGEMENT OF RIGHTS OF
THIRD PARTIES;
(b) AS TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, OR NON INFRINGEMENT OF THIRD PARTY RIGHTS, WITH RESPECT TO ANY
TECHNOLOGY PROVIDED BY CALTECH TO LICENSEE HEREUNDER.
9.3 INDEMNIFICATION BY CALTECH. Caltech shall indemnify, defend and hold
harmless Licensees from and against any and all losses, damages, costs and
expenses (including attorneys' fees) arising out of a material breach by Caltech
of its representations and warranties ("INDEMNIFICATION CLAIMS"), except to the
extent involving or relating to a material breach by Licensee of its
representations and warranties, provided that: (a) Caltech is notified promptly
of any Indemnification Claims; (b) Caltech has the sole right to control and
defend or settle any litigation within the scope of this indemnity; and (c) all
indemnified parties cooperate to the
18
extent necessary in the defense of any Indemnification Claims. The foregoing
shall be the sole and exclusive remedy of Licensee for breach of Section 9.1.
9.4 INDEMNIFICATION BY LICENSEE. Licensee shall indemnify, defend and hold
harmless Caltech, its trustees, agents and employees from and against any and
all losses, damages, costs and expenses (including reasonable attorneys' fees)
arising out of third party claims brought against Caltech relating to the
manufacture, sale, licensing, distribution or use of Licensed Products by or on
behalf of Licensee or its Affiliates, except to the extent involving or relating
to a material breach by Caltech of its representations and warranties.
9.5 CERTAIN DAMAGES. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY
SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES ARISING OUT OF THIS
AGREEMENT, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY.
ARTICLE 10
TERM AND TERMINATION
10.1 TERM. This Agreement and the rights and licenses hereunder shall take
effect on the Effective Date and continue until the expiration, revocation,
invalidation, or unenforceability of any or all intellectual property rights
(whether under patent, copyright, or trade secret) licensed to Licensee
hereunder, unless earlier terminated pursuant to the terms of this Agreement.
10.2 TERMINATION FOR MONETARY BREACH. Caltech shall have the right to
terminate this Agreement and the rights and licenses hereunder if Licensee fails
to make any payment due including patent expenses, minimum annual royalties or
royalties hereunder and Licensee continues to fail to make the payment, (either
to Caltech directly or by placing any disputed amount into an interest-bearing
escrow account to be released when the dispute is resolved) for a period of
fifteen (15) days after receiving a second written notice from Caltech
specifying Licensee's failure. Caltech's second notice to Licensee specifying
19
Licensee's failure will not occur less than thirty (30) days after Caltech's
first notice specifying Licensee's failure. Upon any such termination, (a)
Licensee shall have six (6) months to complete the manufacture of any Licensed
Products that are then works in progress for sale and to sell its inventory of
Licensed Products, provided that Licensee pays the applicable royalties, and (b)
any sublicenses shall survive termination in accordance with Section 2.3.
10.3 NON-MONETARY TERMINATION OR BREACH. If this Agreement is materially
breached by either party, the non-breaching party may elect to give the
breaching party written notice describing the alleged breach. If the breaching
party has not cured such breach within ninety (90) days after receipt of such
notice, the notifying party will be entitled, in addition to any other rights it
may have under this Agreement, to terminate this Agreement and the rights and
licenses hereunder effective immediately; provided, however, that if either
party receives notification from the other of a material breach and if the party
alleged to be in default notifies the other party in writing within sixty (60)
days of receipt of such default notice that it disputes the asserted default,
the matter will be submitted to arbitration as provided in Article 12 of this
Agreement. In such event, the non-breaching party shall not have the right to
terminate this Agreement until it has been determined in such arbitration
proceeding that the other party materially breached this Agreement, and the
breaching party fails to cure such breach within sixty (60) days after the
conclusion of such arbitration proceeding. Notwithstanding the foregoing, with
regard to breach of Section 7.1 only, the provisions of Section 7.3 shall take
precedence over any inconsistent provision in this Section 10.2.
10.4 OTHER TERMINATION. This Agreement may also be terminated, in whole or
in part, as set forth in Sections 5.6 and 7.3.
20
10.5 ACCRUED LIABILITIES. Termination of this Agreement for any reason
shall not release any party hereto from any liability which, at the time of such
termination, has already accrued to the other party or which is attributable to
a period prior to such to nation, nor preclude either party from pursuing any
rights and remedies it may have hereunder or at law or in equity which accrued
or are based upon any event occurring prior to such termination.
10.6 SURVIVAL. The following shall survive any expiration or termination
(in whole or in part) of this Agreement: (a) any provision plainly indicating
that it should survive; (b) any royalty due and payable on account of activity
prior to the termination; and (c) Sections or Articles 6.2, 9.2, 9.3, 9.4, 9.5,
10.4, 11, 12, 13.1 & 14.
ARTICLE 11
CONFIDENTIALITY
11.1 NONDISCLOSURE AND NONUSE. Each party agrees not to directly or
indirectly disclose any confidential information of the other party to any third
party without the prior written consent of the other party, or to use any such
confidential information for any purpose other than as contemplated by this
Agreement. The Technology, and the specification of any unpublished patent
application, shall be considered confidential information of Caltech, except to
the extent (if at all) the foregoing is inherently disclosed in the normal
course of use of a Licensed Product. The terms of this Agreement shall be
considered confidential information of both parties. Notwithstanding anything to
the contrary, confidential information of a party shall not include any
information which: (a) is independently developed, without access to that
party's confidential information, by the other party; (b) is acquired by the
other party from a third party who has, the right to disclose such information;
or (c) is or becomes part of the public domain (e.g., by publication of a patent
or by any other means) except via an unauthorized act or omission by the other
party.
21
11.2 PERMITTED DISCLOSURES. Notwithstanding the foregoing, each party may
disclose: (a) confidential information as required by securities or other
applicable laws or pursuant to governmental proceedings, provided that the
disclosing party gives advance written notice to the other party and reasonably
cooperates therewith in limiting the disclosure to only those third parties
having a need to know; (b) confidential information to that party's actual or
prospective investors or corporate partners, or to that party's accountants,
attorneys, and other professional advisors; and (c) the fact that Licensee has
been granted a license under the Exclusively Licensed Patent Rights. Except with
respect to the above third parties, Licensee agrees not to disclose information
described in paragraph 11.1 to any third party unless under an appropriate
nondisclosure agreement.
ARTICLE 12
DISPUTE RESOLUTION
12.1 No issue of the validity of any of the Licensed Patents,
enforceability of any of the Licensed Patents, infringement of any of the
Licensed Patents, the scope of any of the claims of the Licensed Patents and/or
any dispute that includes any such issue, shall be subject to arbitration under
this Agreement unless otherwise agreed by the Parties in writing.
12.2 Except for those issues and/or disputes described in Section 10.2, any
dispute between the Parties concerning the interpretation, construction or
application of any terms, covenants or conditions of this Agreement shall be
resolved by arbitration.
12.3 Arbitration shall be in accordance with the CPR Institute For Dispute
Resolution (CPR) Rules for Non-Administered Arbitration of Patent and Trade
Secret Disputes or Rules for Non-Administered Arbitration, as appropriate, in
effect on the Effective Date by a sole Arbitrator who shall be appointed in
accordance with the applicable CPR rules. Any other choice of law
22
clause to the contrary in this Agreement notwithstanding, the arbitration shall
be governed by the United States Arbitration Act, 9 U.S.C. Section 1-16.
12.4 Any award made (i) shall be a bare award limited to a holding for or
against a party and affording such remedy as is within the scope of the
Agreement; (ii) shall be accompanied by a brief statement (not to exceed ten
(10) pages) of the reasoning on which the award rests; (iii) shall be made
within four (4) months of the appointment of the Arbitrator; (iv) may be entered
in any court of competent jurisdiction; and (v) any award pertaining to a patent
which is subsequently determined to be invalid or unenforceable or otherwise
precluded from being enforced, in a judgment rendered by a court of competent
jurisdiction from which no appeal can or has been taken, may be modified as it
relates to such patent by any court of competent jurisdiction upon application
by any party to the arbitration, however, under no circumstances shall Caltech
be required to refund any monies paid, or forego any mounts accrued, under the
terms of this Agreement.
12.5 The requirement for arbitration shall not be deemed a waiver of any
right of termination under this Agreement and the Arbitrator is not empowered to
actor make any award other than based solely on the rights and obligations of
the Parties prior to any such termination.
12.6 Each party shall bear its own expenses incurred in connection with any
attempt to resolve disputes hereunder, but the compensation and expenses of the
Arbitrator shall be borne equally.
12.7 The Arbitrator shall not have authority to award punitive or other
damages in excess of compensatory damages, and each party irrevocably waives any
claim thereto.
23
ARTICLE 13
PRODUCT LIABILITY
13.1 INDEMNIFICATION. Licensee agrees that Caltech (including its trustees,
officers, faculty and employees) shall have no liability to Licensee, its
Affiliates, their customers or any third party, for any claims, demands, losses,
costs, or other damages which may result from personal injury, death, or
property damage related to the Licensed Products ("PRODUCT LIABILITY CLAIMS").
Licensee agrees to defend, indemnify, and hold harmless Caltech, its trustees,
officers, faculty and employees from any such Product Liability Claims, provided
that: (a) Licensee is notified promptly of any Product Liability Claims; (b)
Licensee has the sole right to control and defend or settle any litigation
within the scope of this indemnity; and (c) all indemnified parties cooperate to
the extent necessary in the defense of any Claims.
13.2 INSURANCE. Prior to such time as Licensee begins to manufacture, sell,
license, distribute or use Licensed Products, Licensee shall at its sole
expense, procure and maintain policies of comprehensive general liability
insurance in amounts not less than $1,000,000 per incident and $3,000,000 in
annual aggregate, and naming those indemnified under Section 13.1 as additional
insureds. Such comprehensive general liability insurance shall provide: (a)
product liability coverage; and (b) broad form contractual liability coverage
for Licensee's indemnification of Caltech under Section 13.1. In the event the
aforesaid product liability coverage does not provide for occurrence liability,
Licensee shall maintain such comprehensive general liability insurance for a
reasonable period of not less than five (5) years after it has ceased commercial
distribution or use of any Licensed Product. Licensee shall provide Caltech with
written evidence of such insurance upon request of Caltech.
13.3 LOSS OF COVERAGE. Licensee shall provide Caltech with notice at least
fifteen (15) days prior to any cancellation, non-renewal or material change in
such insurance, to the extent
24
Licensee receives advance notice of such matters from its insurer. If Licensee
does not obtain replacement insurance providing comparable coverage within sixty
(60) days following the date of such cancellation, non-renewal or material
change, Caltech shall have the right to terminate this Agreement effective at
the end of such sixty (60) day period without any additional waiting period;
provided that if Licensee provides credible written evidence that is has used
reasonable efforts, but is unable, to obtain the required insurance, Caltech
shall not have the right to terminate this Agreement, and Caltech instead shall
cooperate with Licensee to either (at Caltech's discretion) grant a limited
waiver of Licensee's obligations under this Article or assist Licensee in
identifying a carrier to provide such insurance or in developing a program for
self-insurance or other alternative measures.
ARTICLE 14
MISCELLANEOUS
14.1 NOTICES. All notice, requests, demands and other communications
hereunder shall be in English and shall be given in writing and shall be: (a)
personally delivered; (b) sent by telecopier, facsimile transmission or other
electronic means of transmitting written documents with confirmation of receipt;
or (c) sent to the parties at their respective addresses indicated herein by
registered or certified mail, return receipt requested and postage prepaid, or
by private overnight mail courier services with confirmation of receipt. The
respective addresses to be used for all such notices, demands or requests are as
follows:
(a) If to CALTECH, to:
California Institute of Technology
0000 Xxxx Xxxxxxxxxx Xxxxxxxxx
Mail Code 210-85
Xxxxxxxx, XX 00000
25
ATTN: Director, Technology Transfer
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
Or to such other person or address as Caltech shall furnish to
Licensee in writing.
(b) If to LICENSEE, to:
Universal Detection Technologies
0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
ATTN: Xxxxxxx Xxxxxx, CEO
Phone No.: (000) 000-0000
If personally delivered, such communication shall be deemed delivered upon
actual receipt by the "attention" addressee or a person authorized to accept for
such addressee; if transmitted by facsimile pursuant to this paragraph, such
communication shall be deemed delivered the next business day after
transmission, provided that sender has a transmission confirmation sheet
indicating successful receipt at the receiving facsimile machine; if sent by
overnight, courier pursuant to this paragraph, such communication shall be
deemed delivered upon receipt by the "attention" addressee or a person
authorized to accept for such addressee; and if sent by mail pursuant to this
paragraph, such communication shall be deemed delivered as of the dates of
delivery indicated on the receipt issued by the relevant postal service, or, if
the addressee fails or refuses to accept delivery, as of the date of such
failure or refusal. Any party to this Agreement may change its address for the
purposes of this Agreement by giving notice thereof in accordance with this
Section 14.1.
26
14.2 ENTIRE AGREEMENT. This Agreement sets forth the complete agreement of
the parties concerning the subject matter hereof. No claimed oral agreement in
respect thereto shall be considered as any part hereof. No amendment or change
in any of the terms hereof subsequent to the execution hereof shall have any
force or effect unless agreed to in writing by duly authorized representatives
of the parties.
14.3 WAIVER. No waiver of any provision, of this Agreement shall be
effective unless in writing. No waiver shall be deemed to be, or shall
constitute, a waiver of a breach of any other provision of this Agreement,
whether or not similar, nor shall such waiver constitute a continuing waiver of
such breach unless otherwise expressly provided in such waiver.
14.4 SEVERABILITY. Each provision contained in this Agreement is declared
to constitute a separate and distinct covenant and provision and to be severable
from all other separate, distinct covenants and provisions. It is agreed that
should any clause, condition or term, or any part thereof, contained in this
Agreement be unenforceable or prohibited by law or by any present or future
legislation then: (a) such clause, condition, term or part thereof, shall be
amended, and is hereby amended, so as to be in compliance therewith the
legislation or law; but (b) if such clause, condition or term, or part thereof,
cannot be amended so as to be in compliance with the legislation or law, then
such clause, condition, term or part thereof shall be severed from this
Agreement all the rest of the clauses, terms and conditions or parts thereof
contained in this Agreement shall remain unimpaired.
14.5 CONSTRUCTION. The headings in this Agreement are inserted for
convenience only and shall not constitute a part hereof. Unless expressly noted,
the term "include" (including all variations thereof) shall be construed as
merely exemplary rather than as a term of limitation.
27
14.6 COUNTERPARTS/FACSIMILES. This Agreement may be executed in one or more
counterparts, all of which taken together shall be deemed one original.
Facsimile signatures shall be deemed original.
14.7 GOVERNING LAW. This Agreement, the legal relations between the parties
and any action, whether contractual or non-contractual, instituted by any party
with respect to matters arising under or growing out of or in connection with or
in respect of this Agreement shall be governed by and construed in accordance
with the internal laws of the State of California, excluding any conflict of law
or choice of law rules that may direct the application of the laws of another
jurisdiction.
14.8 NO ENDORSEMENT. Licensee agrees that it shall not make any form of
representation or statement which would constitute an express or implied
endorsement by Caltech of any Licensed product, and that it shall not authorize
others to do so, without first having obtained written approval from Caltech,
except as may be required by governmental law, rule or regulation.
14.9 TRANSFERABILITY. This Agreement shall be binding upon and inure to the
benefit of any successor or assignee of Caltech. This Agreement is not
transferable by Licensee without the prior written consent of Caltech, and any
attempted transfer shall be void, except that Licensee may transfer this
Agreement without the prior written consent of Caltech to any Affiliate or any
successor of, or purchaser of substantially all of, the assets or operations of
its business to which this Agreement pertains. Any permitted transferee shall
succeed to all of the rights and obligations of Licensee under this Agreement.
14.10 EXPORT REGULATIONS. This Agreement is subject in all respects to the
laws and regulations of the United States of America, including the Export
Administration Act of 1979, as
28
amended, and any regulations thereunder. Licensee or its sublicensees will not
in any form export, re-export, resell, ship, divert, or cause to be exported,
re-exported, resold, shipped, or diverted, directly or indirectly, any product
or technical data or software of the other party, or the direct product of such
technical data or software, to any country for which the United States
Government or any agency thereof requires an export license or other
governmental approval without first obtaining such license or approval.
14.11 FORCE MAJEURE. Neither party shall lose any rights hereunder or be
liable to the other party for damages or losses (except for payment obligations)
on account of failure of performance by the defaulting party if the failure is
occasioned by war, strike, fire, Act of God, earthquake, flood, lockout,
embargo, governmental acts or orders or restrictions, failure of suppliers, or
any other reason where failure to perform is beyond the reasonable control and
not caused by the negligence or intentional conduct or misconduct of the
nonperforming party, and such party has exerted all reasonable efforts to avoid
or remedy such force majeure; provided, however, that in no event shall a party
be required to settle any labor dispute or disturbance.
29
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed.
CALIFORNIA INSTITUTE OF
TECHNOLOGY (CALTECH)
Date: 10-06-03
---------------------- By: /s/ Xxxxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Director, Office of Technology
Transfer
(LICENSEE)
Date: 10-10-03
----------------------
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxx
Title: CEO
30
EXHIBIT A
Caltech I.D.# Appln Serial # Date Title
--------------------------------- --------------- --------------- -------------------------------
3405 10/306,331 11/27/2002 BacterialEndospore
Quantification using
Lathanide Dipicolinate
Inventors:
Xxxxx, Xxxxxx
Xxxxxxxxxxxxx, Xxxxxxxx S
3405-PCT PCT/US02/38005 11/27/2002 BacterialEndospore
Quantification using
Lathanide Dipicolinate
Inventors:
Xxxxx, Xxxxxx
Xxxxxxxxxxxxx, Xxxxxxxx S
3596 10/355,462 1/31/2003 Live/Dead Assay for Bacterial
(EXCLUDING SUBJECT Spores
MATTER/CLAIMS RELATED TO NPO- Inventor
30444) Xxxxx, Xxxxxx
3596-PCT PCT/US03/03036 1/31/2003 Live/Dead Assay for Bacterial
(EXCLUDING SUBJECT Spores
MATTER/CLAIMS RELATED TO NPO- Inventor
30444) Xxxxx, Xxxxxx
31
EXHIBIT 1
INVENTIONS DESCRIBED IN CIT-3596 AND CIT-3596-PCT THAT ARE NOT SUBJECT TO THIS
LICENSE --- AGREEMENT
Tech. Disclosure #1 Date Title
Caltech LD. #
--------------------------------- --------------- ------------------------------------
XXX 00000 117/2002 Live/Dead Assay for Bacterial
Spores
(Xxxxxx Xxxxx)
INVENTIONS DESCRIBED 1N CIT-3596 AND CIT-3596-PCT THAT ARE SUBJECT TO THIS
LICENSE AGREEMENT
Tech. Disclosure #1 Date Title
Caltech LD. #
--------------------------------- --------------- -------------------------------------
XXX 00000 7/11/2002 Imaging Bacterial Spores Using Tb-DPA
Luminescence Assay and APS Imaging
(Xxxxxx Xxxxx, Xxxx Xxxxxxx)
NPO 30684 9127/2002 Unattended Monitoring of Aerosolized
Bacterial Spores
(Xxxxxx Xxxxx)
NPO 30469 11812002 Lateral Flow Immunoassay for Bacterial
Spore Detection using Lanthanide
Luminescence
(Xxxxxx Xxxxx).
32
