LICENSE AGREEMENT DIAGNOSTIC DEVELOPMENT BUSINESS
EXHIBIT
10.101
EXECUTION
COPY
DIAGNOSTIC
DEVELOPMENT BUSINESS
This
LICENSE AGREEMENT (the “Agreement”) is entered into and effective as of
December 14, 2007 (the “Effective Date”), by and between Gene Logic Inc.
(“Licensee”), a Delaware corporation, with a principal address at 00 Xxxx
Xxxxxxx Xxxx Xxxx
Xxxxxxxxxxxx,
XX 00000, and Ocimum Biosolutions, Inc. (“Purchaser”), a Delaware
corporation with a principal address at 00 Xxxx Xxxxxxx Xxxx Xxxx
Xxxxxxxxxxxx,
XX 00000 (each a “Party” and collectively, the “Parties” to this
Agreement).
WHEREAS,
contemporaneously herewith, Licensee and Purchaser have consummated the
transactions set forth in that certain Asset Purchase Agreement (the
“Purchase Agreement”), dated as of October 14, 2007, by and among
Licensee, Purchaser and Ocimum Biosolutions (India) Limited, a company
incorporated under the Company Xxx, 0000, of the Republic of India (“Ocimum
India”), as amended by that certain letter agreement made by and among Gene
Logic, Purchaser and Ocimum India dated December 12, 2007, whereby
Purchaser has acquired from Licensee certain assets, technologies and other
property used in the Business (as defined in the Purchase Agreement);
and
WHEREAS,
as part of the aforementioned transaction, Purchaser has agreed to grant a
license to Licensee to certain of the acquired intellectual property and
technology for certain defined purposes on the terms set forth
below.
NOW,
THEREFORE, in consideration of the undertakings of the Parties in the
Purchase Agreement, and the mutual covenants and promises of the Parties set
forth herein, and other good and valuable consideration, the sufficiency of
which is hereby acknowledged, the Parties agree as follows, intending to be
legally bound:
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1.
DEFINITIONS. In addition to any other terms defined
elsewhere in this Agreement, the following terms, for purposes of
this
Agreement, shall have the following
meanings:
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1.1.
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“Affiliate”
of a Person shall mean a Person that directly or indirectly, through
one
or more intermediaries, controls, is controlled by, or is under common
control with, the first mentioned Person, and their respective successors
and assigns. For the purposes of this definition, the term
“control” means (i) beneficial ownership of at least fifty percent (50%)
of the voting securities of a corporation or other business organization
with voting securities or (ii) a fifty percent (50%) or greater interest
in the net assets or profits or interests of a partnership or other
business organization without voting
securities.
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1.2.
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“Business”
shall have the meaning ascribed to it in the Purchase
Agreement.
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1.3.
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“Closing”
shall mean the effective date of the closing by the Parties on the
transactions contemplated in the Purchase
Agreement.
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1.4.
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“Collaborator”
means any third party (a) with whom Licensee or a Licensee Affiliate
has a
research, development or commercialization agreement, or (b) who
is a
customer of Licensee or a Licensee Affiliate or a party described
in (a)
above in connection with a project or task where such party and Licensee
or a Licensee Affiliate are collaborating within the Diagnostic
Development Business, and their respective successors and
assigns.
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1.5.
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“Improvements”
shall mean improvements, enhancements, and modifications to an invention,
technology, trade secret, or
know-how.
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1.6.
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“Information
Assets” shall have the meaning ascribed to it in the Purchase
Agreement, including the raw data and Know-How related thereto, and
any
fixes, enhancements, updates, upgrades, new versions and new releases
thereof existing as of Closing or otherwise acquired from or provided
by
Purchaser after Closing, as well as all existing documentation therefor,
but excluding any third party proprietary data, third party proprietary
Know-How and third party proprietary software for which Purchaser
would
have a contractual obligation to obtain consents for granting the
license
contemplated by this Agreement, if such consent has not been granted
or
the right to consent waived by the third
party.
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1.7.
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“Intellectual
Property Rights” shall mean all rights and entitlements recognized,
vested, granted, available, or existing anywhere in the world, whether
through formal registration or application or otherwise, to inventions,
discoveries, improvements, technologies, works of authorship, mask
works,
information, and designs, including without limitation, patent rights,
copyrights, trade secret rights, trademark rights, database rights,
industrial property rights, moral rights, and registered design rights,
including the Licensed Patent
Rights.
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1.8.
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“Know-How”
shall mean know-how, information, knowledge, SOPs (standard operating
procedures), experience, procedures, processes, methods, protocols,
techniques, and technical and scientific information relating to
the
Business that is sold, transferred or conveyed by Licensee to Purchaser
pursuant to the transactions contemplated in the Purchase Agreement,
whether owned prior to Closing by Licensee or a Licensee Affiliate
or
licensed or acquired by any of them from a third party, which is
used or
useful in connection with the Retained Business, including without
limitation procedures and know-how for tissue and blood storage,
RNA
isolation, RNA QC, target preparation and GeneChip®
processing, published materials, and Intellectual Property
Rights that are not Registered IP and are included in the Acquired
Assets.
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1.9.
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“Licensed
Patents Rights” shall mean all rights under any disclosures, patents
and patent applications assigned, transferred or conveyed to Purchaser
under the Purchase Agreement, as set forth on Appendix One hereto,
and all patents resulting from such disclosures, applications, and
reissuances, reexaminations, divisionals, continuations and foreign
counterparts of any of the
foregoing.
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1.10.
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“Licensed
Technology” shall mean the Information Assets, the Know-How, and the
Intellectual Property Rights in or to any of the
foregoing.
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1.11.
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“Person”
shall mean an individual, corporation, company, partnership, association,
trust, or any unincorporated organization or group (within the meaning
of
Section 13(d)(3) of the Exchange
Act).
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1.12.
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“Retained
Business” shall mean the Diagnostic Development Business, as defined
in the Purchase Agreement, as such Retained Business is now or hereafter
conducted.
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2.
LICENSES.
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2.1.
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Grant. Subject
to the terms and conditions of this Agreement, Purchaser hereby grants
to
Licensee, and Licensee accepts, (A) for a period of one year from
the date of Closing, the exclusive right and license to use the Licensed
Technology and the Licensed Patent Rights in the Retained Business,
including as needed the right to reproduce, create Improvements and
derivative works (the “Exclusive License”), (B) the non-exclusive
right and license to use the Licensed Technology and the Licensed
Patent
Rights in the Retained Business from and after the end of the Exclusive
License, including as needed the right to reproduce, create Improvements
and derivative works (the “Retained Business Non-Exclusive
License”), and (C) the non-exclusive right and license to use the
Licensed Technology and the Licensed Patent Rights in all fields
of use
outside of the Retained Business, including as needed the right to
reproduce, create Improvements and derivative works, subject to any
restrictions imposed by any non-compete agreement between the Parties
entered into in connection with the Purchase Agreement (the
“Non-Exclusive License”), in each of (A), (B) and (C) above
directly or through Licensee Affiliates, contractors working for
the
account of Licensee or a Licensee Affiliate, and
Collaborators.
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2.1.1.
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The
grant of the Exclusive License entails that, as long as the Exclusive
License is in effect, Purchaser and Purchaser Affiliates and any
of their
respective successors and assigns shall not, directly or through
others,
sell, license, lease, lend, provide, disclose, use or permit use
of
(whether directly or through a service bureau or subscription arrangement)
any part of the Licensed Technology or the Licensed Patent Rights
to or by
any Person who will use or license them for a business that competes
with
any aspect of the Retained
Business.
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2.1.2.
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All
the licenses are fully paid up, royalty-free, and
worldwide. The licenses are transferable as set forth in
Section 9.2 of this Agreement.
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2.1.3.
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The
Exclusive License, the Retained Business Non-Exclusive License and
the
Non-Exclusive License are sublicensable as set forth in the next
sentence. Licensee may sublicense the licensed rights granted
in this Agreement above to a Licensee Affiliate, to Collaborators
for use
in the collaboration with Licensee or a Licensee Affiliate, to a
third
party to which an activity in the regular course of business in connection
with the Retained Business has been outsourced, and to contractors
to the
extent working with any of the foregoing for the activities described
above. Each sublicense shall expressly disclaim any warranty,
damages, or liability that may apply to Purchaser as the owner of
the
Licensed Technology and Licensed Patent
Rights.
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2.1.4.
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The
licenses granted in Section 2.1 are subject to and restricted by
any
limitations imposed by law or contract on the Licensed Technology
as it
was transferred by Licensee to Purchaser as of Closing, whether or
not
those limitations were fully disclosed on the Purchase
Agreement.
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2.1.5.
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With
respect to any issued patents that are now or in the future encompassed
in
the definition of Licensed Patent Rights, the license for each
such patent shall expire on the earlier of the expiration of the
patent or
the invalidation or cancellation by final order of all claims in
the
patent. The remaining aspects of the licenses granted in this
Agreement with respect to all other Licensed Technology and Licensed
Patent Rights shall remain in effect perpetually until or unless
this
Agreement is terminated pursuant to its
terms.
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2.1.6.
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The
license granted in Section 2.1 above does not require the physical
delivery of any materials, information, data, Know-How or technology
to
Licensee. Licensee has the right to retain and use in
connection with the exercise of the rights granted herein a copy
of the
embodiments of the Licensed Technology and the Licensed Patent Rights
that
are in its possession or under its control at
Closing.
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2.1.7.
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THE
LICENSES GRANTED IN SECTION 2.1 ARE GRANTED ON AN AS IS BASIS, AND
PURCHASER MAKES NO WARRANTY, EXPRESS, IMPLIED OR STATUTORY IN THIS
AGREEMENT WITH RESPECT THERETO AND MAKES NO REPRESENTATION WITH RESPECT
TO
THE VALIDITY OR ENFORCEABILITY OF THE LICENSED PATENT RIGHTS WHETHER
ANY
PATENT WILL ISSUE, OR WHETHER ANY OF THE LICENSED PROPERTY INFRINGES
THE
INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD
PARTY.
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2.2.
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Covenant
not to Xxx. Purchaser hereby covenants to Licensee that it
will not, directly or through others, assert against Licensee or
Licensee
Affiliates and their respective successors and assigns permitted
by this
Agreement (collectively the “Licensee Parties”), any Intellectual
Property Rights of Purchaser or Purchaser Affiliates licensed under
this
Agreement (including rights to inventions conceived or first reduced
to
practice as of the Closing, whether or not applications have been
filed
with respect thereto) which are necessary for any of the Licensee
Parties
to reduce to practice, use, modify, license, make or have made, export,
sell, offer for sale, market, distribute or create derivative works
of the
Licensed Technology or products and services that practice, employ
or
include any of the Licensed Technology, solely in connection with
the
Retained Business and the terms of this
Agreement.
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2.3.
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Reservation
of Rights. No rights or licenses are granted or deemed
granted hereunder other than those rights or licenses expressly granted
by
this Agreement.
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2.4.
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Improvements. Each
Party shall own, in accordance with applicable intellectual property
law,
all Intellectual Property Rights and Improvements it develops from
and
after the Closing with respect to the Licensed Technology or the
Licensed
Patent Rights and shall have no obligation to license or make them
available to the other party. In the event Licensee develops
improvements to the inventions disclosed in issued patents that are
part
of the Licensed Patent Rights, and obtains a patent therefor, it
shall
grant to Purchaser a non-exclusive, fully-paid up, royalty-free license
to
use such patent improvements in the conduct of the Business on an
AS IS
basis.
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2.5.
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Software
Corrections and Enhancements. Purchaser shall provide to Licensee, for
use only within the scope of the license granted in this Section
2, any
fixes, updates and minor upgrades to the licensed software (and related
documentation) that is included in the Licensed Technology that Purchaser
or a Purchaser Affiliate develops or has developed on its behalf
and makes
available to others within two years from the Closing. Purchaser
shall
offer to Licensee a license for enhancements and new releases of
the
software licensed as part of the Licensed Technology that is created
after
the Closing, under substantially the same terms and conditions as
offered
by Purchaser to other customers.
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3.
OTHER ACTIONS.
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3.1.
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Further
Assurances. Each Party covenants that at the request and
cost of the other Party it will at all times hereafter do all such
acts
and execute all such documents as may be reasonably necessary or
desirable
to secure the vesting in the other Party of the rights granted under
this
Agreement.
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3.2.
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Recordation. The
Parties agree that, to the extent required by law in a country or
otherwise desirable, they shall enter into formal licence agreements
or
registered user agreements in such forms as may be reasonably required
for
the purposes of recordation of this Agreement or the licenses granted
herein in the patent office, intellectual property ministry, customs
authority or other agencies in such country, which licences and agreements
shall be recorded by and at the expense of the Party requesting the
recordation.
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4.
FEES.
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4.1.
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No
Fees. The licenses are fully paid and royalty
free.
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4.2.
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Taxes. To
the extent that the licenses granted herein to Licensee directly
give rise
to any United States sales, transfer or use taxes, Licensee agrees
to pay
such taxes, and Purchaser shall send a timely invoice to Licensee
for any
such taxes.
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5.
INTELLECTUAL
PROPERTY.
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5.1.
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Ownership. Licensee
agrees that from and after the Closing, as between Licensee and Purchaser,
Purchaser owns the Licensed Technology and Licensed Patent Rights
and may
exploit them in any manner it deems appropriate subject only to any
express restrictions set forth in the Purchase Agreement and the
licenses
granted hereunder, and that Licensee and Licensee Affiliates have
no right
or title thereto other than for the rights granted pursuant to this
Agreement.
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5.2.
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Protection. Each
Party shall have the sole and exclusive right to determine, in its
discretion, if and how to protect the Intellectual Property Rights
in
technology and Intellectual Property Rights it
owns.
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5.3.
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Right
to Bring Claims.
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5.3.1.
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Except
as noted below, Purchaser shall solely determine whether to bring
claims,
actions, demands and suits against third parties with respect to
any
infringement or violation, actual or apparent, by the third party
of any
aspect of the Licensed Technology or Licensed Patent
Rights.
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5.3.2.
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In
the event Licensee identifies a suspected infringement or misappropriation
of the Licensed Technology or Licensed Patent Rights within the Retained
Business, Licensee will notify Purchaser in the event Licensee wishes
to
bring a claim against the third party. Licensee and Purchaser
will reasonably consult with respect to the alleged infringement
or
misappropriation and Purchaser shall have the first right to bring
the
claim, and shall consult with Licensee with respect thereto on an
on-going
basis with the goal that any settlement or resolution shall seek
to
prevent the encroachment on Licensee’s Exclusive License. In the event
Purchaser determines not to bring the claim, Purchaser hereby grants
to
Licensee a non-exclusive right to bring such claims within the field
of
the Retained Business only, at the expense of Licensee and in continued
consultation with Purchaser. Purchaser will act promptly in notifying
Licensee whether or not it wishes to bring the claim, and if it is
an
indispensable party, it shall agree to become a party in the claim
at
Licensee’s expense and with Licensee’s
counsel.
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5.3.3.
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In
addition, Licensee shall have the right to take all necessary actions
to
defend itself and its Affiliates and counterclaim in the event it
is the
subject of any claims by a third party that any rights licensed hereunder
infringe or misappropriate the Intellectual Property Rights of a
third
party.
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5.4.
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Information
and Assistance. The parties shall make reasonable efforts
to assist each other in the event of a third party claim or demand
alleging that rights licensed to Licensee by the Purchaser
under this Agreement infringe the Intellectual Property Rights of
a third
party.
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5.5.
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Maintenance. Purchaser
shall have the sole right, but not the obligation, at its expense
to file,
prosecute, receive grants under and maintain the Licensed Patent
Rights.
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5.6.
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Markings. Licensee,
for itself and Licensee Affiliates, agrees to make a reasonable effort
to
observe the requirements of Purchaser of which it is notified in
writing
during the term of this Agreement with respect to any marking required
on
products under the Licensed Patent Rights. A non-compliance
with this Section shall not give rise to termination for breach of
this
Agreement.
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5.7.
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Use
of Name or Trademarks. Without the prior express written
consent of the other Party, no right, express or implied, is granted
by
this Agreement to one Party to use in any manner the name or any
other
trade name, trademark, brand name, or service xxxx of the other Party
in
connection with its performance of its rights and obligations under
this
Agreement, except (i) as authorized by the Transition Services Agreement,
and (ii) in connection with required markings, uses necessary in
order to
make legal disclosures, and for objective and brief references to
the
relationship of the Parties as set forth in this Agreement and the
Purchase Agreement.
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6.
TERM AND TERMINATION.
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6.1.
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Term. Unless
terminated earlier in accordance with the following provisions of
this
Section and subject to Section 2.1.5, this Agreement shall commence
on the
Effective Date and shall continue in effect
indefinitely.
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6.2.
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Termination. Licensee
may, in its discretion, terminate this Agreement or its license to
use any
individual item of Licensed Technology or Licensed Patent
Rights. In the event Licensee materially breaches (and fails to
cure or to achieve substantial cure within 90 days of receipt of
written
notice from Purchaser) the terms of the license granted to it by
Purchaser
under this Agreement, Purchaser may terminate the license to the
item of
Licensed Technology or Intellectual Property Right that gave rise
or
caused the breach and the remaining licenses to the Licensed Technology
and Licensed Patent Rights and other provisions of this Agreement
shall
remain in effect. Notwithstanding any termination of this
Agreement, Section 2.2 shall remain in effect and survive termination
with
respect to any and all activities of the Licensee Parties through
the
termination date.
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6.3.
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Effect
of Termination. Termination shall be without prejudice to the rights,
remedies, obligations, and liabilities which may have accrued on
or at any
time up to the date of termination, including any rights granted
or agreed
to be granted by Licensee or a Licensee Affiliate to third parties
as
permitted in this Agreement (all which rights shall survive termination
hereof). Upon termination of any license to an item of Licensed
Technology or Licensed Patent Rights, Licensee shall cease all further
exercise of the licensed rights with respect to such terminated licensed
item. Termination of this Agreement or of any right or license
granted hereunder shall not give rise to a right by the terminating
Party
to seek rescission of or to void or unwind under any theory the
transactions contemplated under the Purchase
Agreement.
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7.INDEMNIFICATION.
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7.1.
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Licensee
hereby agrees to defend and indemnify Purchaser from and against
all
liabilities, costs, reasonable attorneys’ fees, judgments and damages
incurred by it or its Affiliates as a result of any claims by third
parties in tort, contract or otherwise to the extent arising out
of the
use of or the exploitation by Licensee or a Licensee Affiliate of
the
rights licensed to it under this Agreement from and after the
Closing. Notwithstanding the above, under no circumstance shall
Licensee be obligated to indemnify Purchaser with respect to any
claim
that the Licensed Technology or any Licensed Patent Right infringes,
violates or misappropriates the Intellectual Property Rights of any
third
party, or that arises from use of the assets acquired pursuant to
the
Purchase Agreement from and after the
Closing.
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7.2.
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In
seeking indemnification Purchaser shall (a) promptly notify Licensee
upon
learning of any claim subject to indemnification hereunder, (b) give
Licensee the sole right to control and direct the preparation
of a defense, (c) give Licensee the sole right to control the settlement
of any such claim, provided such settlement does not entail any injunctive
or other equitable relief against Purchaser that Purchaser has not
reasonably consented to and does not bind Purchaser to future obligations
with respect to the Licensed Technology or the Licensed Patent Rights
under which Purchaser would be required to operate that Purchaser
has not
reasonably consented to, provided that, if Purchaser refuses to
provide its reasonable written consent to such a settlement offer,
the
liability of the Licensee hereunder with regard to such claim shall
not
exceed the amount offered in such settlement and the Purchaser shall
thereafter be responsible for any liability in excess of the liability
that would have arisen under such settlement, and further provided
that
Purchaser may appear with its own counsel at its expense, and (d)
give
reasonable cooperation to Licensee with respect to the
claim.
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7.3.
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Representations. Each
Party represents and warrants that it has the corporate right, power,
and
authority to enter into this
Agreement.
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7.4.
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Limitations
of Damages and Liability. THE TOTAL LIABILITY OF EITHER PARTY (OR ANY
PERMITTED ASSIGNEE OR TRANSFEREE OF ANY LICENSE GRANTED HEREUNDER)
FOR
MATTERS ARISING UNDER THIS AGREEMENT (OTHER THAN FOR PAYMENTS REQUIRED
TO
BE MADE TO A THIRD PARTY PURSUANT TO INDEMNIFICATION OBLIGATIONS
CONTAINED
HEREIN) OR ANY OTHER MATTER RELATING TO THIS AGREEMENT (WHATEVER
THE BASIS
FOR THE CAUSE OF ACTION) SHALL NOT EXCEED US$250,000. IN NO
EVENT SHALL EITHER PARTY OR ITS AFFILIATES BE LIABLE FOR ANY SPECIAL,
INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR REPUTATIONAL
INJURY, LOSS OF OPPORTUNITY OR LOST PROFITS, WHETHER BASED ON BREACH
OF
CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE,
AND REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH
DAMAGES OR WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS
ESSENTIAL PURPOSE. FOR THE AVOIDANCE OF DOUBT,
THE LIMITATIONS SET FORTH ABOVE IN THIS SECTION DO NOT APPLY TO MATTERS
ARISING UNDER OR PURSUANT TO THE PURCHASE
AGREEMENT.
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8.FORCE
MAJEURE. If either Party to this Agreement (or any
permitted assignee or transferee) is prevented or delayed in the
performance of any of its obligations under this Agreement due
to any cause or condition beyond its reasonable control, whether
foreseeable or not, (“Force Majeure”), and if such party gives
written notice thereof to the other party specifying the matters
constituting Force Majeure, together with such evidence as it reasonably
can give and specifying the period for which it is estimated that
such
prevention or delay will continue then the Party in question shall
be
excused from the performance or the punctual performance as the case
may
be from the date of such notice for so long as such cause of prevention
or
delay shall continue, provided that it shall make a reasonable effort
to
mitigate the impact of the Force Majeure event on this
Agreement.
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9.GENERAL.
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9.1.
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Relationship
of Parties. The Parties hereto expressly understand and
agree that the Parties are not joint venturers, partners or agents
of each
other. Neither Party has the authority to bind, enter into
contracts or make representations on behalf of the other
Party. Each Party is responsible for all of its the employees
and third parties it may use to perform on its
behalf.
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9.2.
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Assignment. This
Agreement shall be binding upon and inure to the benefit of the Parties
hereto and their respective legal successors and
assigns. Either Party may assign this Agreement and its rights
and obligations hereunder to a successor (whether by way of sale
of stock
or ownership interests, merger, consolidation, reorganization, by
operation of law or otherwise), to a purchaser of all or substantially
all
of a business or assets to which this Agreement relates, or to an
Affiliate. Notwithstanding the above, the assignment by Licensee
of the
Non-Exclusive License granted in this Agreement (but not of the Retained
Business Non-Exclusive License) shall require the reasonable consent
of
Purchaser, which shall be deemed granted if not declined within 30
days of
the written request for consent from Licensee. Assignment in
cases not listed above shall require the consent of the other Party
not to
be unreasonably withheld or delayed or conditioned. Each party shall
bind
an assignee or transferee hereunder to a writing agreeing to assume
the
terms of this Agreement from and after the assignment or transfer.
Purchaser shall make any assignment or transfer of its rights to
any
Licensed Technology or Licensed Patent Rights expressly subject to
this
Agreement, and shall bind the assignee or transferee thereto in
writing. Upon an assignment or transfer as set forth herein,
the assignor or transferor shall remain liable for any breach of
this
Agreement occurring prior to the effective date of the assignment
or
transfer, and the assignee or transferee shall be solely liable for
any
breaches occurring from and after the effective date of the assignment
or
transfer.
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9.3.
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Headings. The
headings in this Agreement are for convenience only and are not intended
to have any legal effect.
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9.4.
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Notices. All
notices, statements, and reports required or permitted by this Agreement
shall be in writing and deemed to have been effectively given and
received: (i) five business days after the date of mailing if
sent by registered or certified U.S. mail, postage prepaid, with
return
receipt requested; (ii) when transmitted if sent by facsimile, provided
a
confirmation of transmission is produced by the sending machine and
a copy
of such facsimile is promptly sent by another means specified in
this
section; or (iii) when delivered if delivered personally or sent
by
express courier service to the address set forth above or to such
other
address as indicated by either Party pursuant to this
Section.
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9.5.
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Governing
Law. This agreement shall be governed by, construed and
interpreted in accordance with the laws of the State of Maryland,
without
regard to its conflicts of laws provisions. The parties agree
that this Agreement and the transactions contemplated herein are
not and
will never be subject to (a) the Uniform Computer Information Transactions
Act as currently enacted in any jurisdiction or as may be modified
or
amended from time to time by any jurisdiction, nor (b) the United
Nations
Convention on Contracts for the International Sale of
Goods.
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9.6.
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Severability. If
any provision of this Agreement is held to be illegal, void or
unenforceable under applicable law, this Agreement shall continue
in force
except that such provision shall be deemed to be excised therefrom
with
effect from the date of such decision and only to the extent only
of the
invalidity or unenforceability.
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9.7.
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Waiver. No
waiver of this Agreement shall be binding on a Party unless executed
in
writing by both Parties. No waiver of any part of this
Agreement shall constitute a waiver of any other part, nor shall
any
waiver constitute a continuing waiver, unless otherwise expressly
acknowledged in writing. Moreover, a failure or delay by
either Party hereto to exercise or enforce any rights conferred upon
it by
this Agreement shall not be deemed to be a waiver of any such rights
or
operate so as to bar the exercise or enforcement thereof at any subsequent
time or times.
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9.8.
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Counterparts. This
Agreement may be signed in one or more counterparts, including facsimile
counterparts, all of which, when taken together, shall constitute
one
original agreement.
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9.9.
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Entire
Agreement. This Agreement and its Schedules set forth the
entire Agreement and undertaking between the Parties as to the subject
matter hereof and supersedes all prior discussions and negotiations
relating to the subject matter hereof. No variation or
amendment of this Agreement shall bind either Party unless made in
writing
and agreed to in writing by duly authorized officers of both
Parties. Nothing in this Agreement is intended to amend or
supersede any term of the Purchase Agreement and the related transaction
documents.
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[Remainder
of page blank. Signatures appear on following page.]
19
IN
WITNESS
WHEREOF this Agreement has been executed the day and year first above written,
through their duly authorized representatives.
LICENSEE
(Gene Logic Inc.):
By:
/s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx
X. Xxxxxxx, III
Title: Chief
Executive Officer and President
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PURCHASER
(Ocimum Biosolutions, Inc.):
By: /s/
X.X. Xxxxxx
Name: Xxxxxx
Xxxxxxxxxx
Title: President
and Chief Financial Officer
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20