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EXHIBIT 10.97
LICENSE AGREEMENT
This License Agreement (this "Agreement") is effective as of June 21,
2001 (the "Effective Date") by and between Gemini Pharmaceuticals, a New York
corporation with its principal place of business at 00 Xxxxxxx Xxxxxx, Xxxxxxx,
XX 00000 ("Licensee"), and xxxxxx.xxx, Inc., a Delaware corporation with its
principal place of business at 000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxx Xxxxxx,
Xxxxxxxxxx 00000 ("KOOP").
WITNESSETH
WHEREAS, Licensee is a fully licensed, private label manufacturer and
distributor of OTCs, dietary supplements, herbs and nutritional products;
WHEREAS, KOOP holds the exclusive right to utilize the C. Xxxxxxx Xxxx,
M.D. name and/or likeness in connection with the sale, promotion and advertising
of the Products (as hereafter defined); and
WHEREAS, Licensee desires to manufacture, distribute and market a
private label line of KOOP nutritional products and formulations, specifically
those set forth in Exhibit A (collectively, the "Products") to those
distribution and retail entities located in the United States and identified in
Exhibit C (the "Territory").
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and in consideration of the mutual
covenants and conditions herein set forth, Licensee and KOOP hereby agree as
follows:
1. LICENSE GRANT; LIMITATIONS
1.1 License Grant. KOOP hereby grants to Licensee, during the term of
this Agreement and subject to the terms and conditions set forth herein, an
exclusive, non-transferable right and license to produce, promote, advertise,
sell and distribute the Products throughout the Territory, including an
exclusive right and license to use those KOOP trademarks set forth in Exhibit B
(collectively, the "KOOP Marks") in connection therewith, in each case subject
to the terms and conditions of this Agreement. During the term of this
Agreement, except as otherwise permitted herein, KOOP will not (i) grant to any
person or entity other than Licensee the right and license to produce, sell and
distribute the Products in the Territory or use the KOOP Marks or the
Proprietary Information in connection with the production, distribution or sale
of the Products in the Territory; or (ii) itself produce, sell and distribute
the Products in the Territory or use the KOOP Marks or the Proprietary
Information in connection with the production, distribution or sale of the
Products in the Territory. The Products shall be sold and distributed by
Licensee only for sale and distribution in pharmacies, grocery stores and/or
specialty stores, and such other outlets and distribution channels as may be
expressly approved by KOOP in writing as set forth in Exhibit C.
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1.2 Limitations on License. No right is granted to Licensee to use
KOOP's Proprietary Information or the KOOP Marks in connection with any product
or service other than the Products. In addition, no license or consent is
granted to Licensee for the manufacture, sale or distribution of the Products as
premiums or promotional items, for publicity purposes, for fund-raising, for
giveaways, in combination sales ("purchase with purchase"), or for other methods
of merchandising, or for disposal in any manner by which Licensee will receive
payment which is less than the regular selling price in the trade without the
prior written consent of KOOP. Licensee may not use any KOOP Marks in connection
with any sweepstakes, lottery, game of chance, or similar promotional or sales
device, scheme or program without the prior written consent of KOOP. Licensee
shall not sell, distribute or export the Products or otherwise use, either
directly or indirectly, the KOOP Marks outside the Territory. Moreover, Licensee
shall not, either directly or indirectly, distribute or sell the Products to any
person who intends or is likely to resell them outside the Territory. No right,
express or implied, is granted to Licensee to allow anyone other than Licensee
to manufacture or otherwise produce the Products without the prior written
consent of KOOP, which such consent, if granted, shall be expressly conditioned
upon the execution by such manufacturer, contractor, screen printer, and/or
subcontractor (collectively, "Subcontractors") of an agreement to be bound by
the terms of this Agreement in the form of Exhibit F. Notwithstanding KOOP's
consent to subcontract, Licensee shall remain fully responsible for all matters
relating to the Products. In addition, Licensee shall promptly provide KOOP with
copies of all agreements with Subcontractors and promptly notify KOOP in writing
of the engagement and termination of each Subcontractor. Notwithstanding the
foregoing, no right, express or implied, is granted to Licensee to sublicense,
assign or otherwise transfer the right to use the KOOP Marks to third parties.
It is agreed that the rights and privileges granted to Licensee are each and all
expressly conditioned upon the faithful performance on the part of Licensee of
every requirement herein contained, and that each of such conditions and
requirements are specific license restrictions.
1.3 Other Rights Reserved. All rights of KOOP not expressly granted to
Licensee in this Agreement are hereby reserved to KOOP and its other licensees.
Without limiting the generality of the foregoing, KOOP expressly reserves the
right to pursue business opportunities itself or with any third parties relating
to the advertisement, promotion, sale and distribution of the Products via
catalogues, the Internet and/or distribution and retail entities other than
those identified in Exhibit C; provided that Licensee shall be entitled to
receive a Manufacturing Fee (as described in Section 3.11 below) for all
Products it produces for KOOP for such purposes.
1.4 Competitive Products. As a material inducement for KOOP to enter
into this Agreement and grant to Licensee an exclusive license, during the term
of this Agreement, Licensee agrees that it shall not design, develop, produce,
promote, advertise, sell or distribute any product formulations that are
identical in nature to those associated with the Products or assist any person
or entity in doing any of the foregoing. In addition, during the term of this
Agreement and thereafter, Licensee shall not use, nor license or otherwise
permit the use of the molds, dies, tooling or specifications designed
specifically for the production of any packaging for the Products or any
advertising or promotional materials for the Products for any other individual
or entity, and Licensee shall not manufacture the Products (as identified in
Exhibit A) for sale under any trademark, including Licensee's own trademarks,
other than the KOOP Marks.
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1.5 Limitations on Exclusivity. In the event Licensee breaches or fails
to perform any provision of this Agreement, including without limitation any of
the payment and royalty provisions, then, in addition to all other rights and
remedies provided hereunder, at law or in equity, KOOP shall have the right to
declare the licenses granted hereunder to be nonexclusive; provided that, in the
event of such a declaration, all of the other terms and conditions of this
Agreement shall remain in full force and effect. In such event, KOOP shall have
the right to grant to any person or entity the right and license to produce,
sell and distribute the Products in the Territory and to use the KOOP Marks and
the Proprietary Information in connection with the production, distribution or
sale of the Products in the Territory, and to do the foregoing itself.
1.6 Third Party Opportunities.
(a) Following the initial six month period from launch of the
product, in the event a third party approaches KOOP with a written business
proposal whereby the third party will perform the functions to be performed by
Licensee under this Agreement with an increase in revenues to KOOP in excess of
25% of the then-current revenues being received by KOOP for the specific product
(e.g., as a result of an increase in production, increase in royalties or
decrease in costs, etc.), Licensee shall have the right to review, prepare an
assessment and match the third party's proposal. Assuming the proposal does not
violate the governing principals of the xxxxxx.xxx/Xxxxxx business guidelines
and in the event Licensee cannot or refuses to match said proposal or if within
a reasonable period of time, KOOP shall have the right to declare the licenses
granted hereunder to be non-exclusive and to pursue the business opportunity
with the third party.
(b) In the event KOOP acquires the stock, interests or assets of
a company (the "Acquired Company") engaged in the design, development,
manufacture, sale or distribution of the Products and if the Acquired Company
has contractual obligations with respect to the manufacture, sale or
distribution of any Products or other similar products either then currently or
contemplated to be manufactured by Licensee for KOOP, then, notwithstanding
anything contained herein to the contrary, KOOP and/or such company shall have
the right to manufacture, distribute and/or sell the Products and use the KOOP
Marks in connection therewith, both within and outside of the Territory;
provided, however, that Licensee shall have the right, to be exercised within a
reasonable period of time, to perform the same functions at the same or lesser
cost (including without limitation the costs of any termination or cancellation
fees or damages for breach arising from any agreement previously entered into by
the Acquired Company).
1.7 Publicity. Licensee shall not issue or permit the issuance of any
press release or other public statement regarding this Agreement or the parties'
relationship without prior coordination with and approval from KOOP. Other than
as granted in this Agreement, Licensee shall not have any right to use the name
and/or likeness of Dr. C. Xxxxxxx Xxxx or to make any statements, whether
written or oral, which state or otherwise imply, directly or indirectly, any
endorsement from or affiliation with Xx. Xxxx or KOOP in any manner whatsoever,
without the prior written consent of KOOP which consent may be withheld in
KOOP's sole discretion.
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2. RESPONSIBILITIES OF THE PARTIES
2.1 Responsibilities of Licensee. In consideration of the license
granted and consideration paid by KOOP herein, Licensee shall be responsible for
performing the following:
2.1.1 Manufacturing. Licensee shall be responsible for all
aspects of the manufacture of the Products, which shall include but not be
limited to:
i. Production of formulations and samples for initial
research & development;
ii. Procurement of raw materials for the Products;
iii. Product manufacturing, with Licensee having the stock
and inventory capability and availability to produce
500,000 individual units/bottles of the Products at
least thirty (30) days prior to the Launch Date (as
defined below);
iv. Laboratory testing of the Products
v. Packaging of the Products
vi. Shipping of the Products
vii. Maintaining the Product inventory
viii. Procurement and maintenance of product liability
insurance, under which KOOP to be an additional insured
ix. Compliance with all necessary regulatory and quality
standards for product manufacturing and testing
2.1.2 Non-Manufacturing. Licensee shall also be responsible for
the following:
x. Product research and development
xi. Creation of compliant product labels
xii. Account penetration of the Products (e.g., samples)
xiii. Negotiation with distributors, retail outlets,
pharmacies and other sales organizations for sales and
payment terms, etc.
xiv. Development of a roll-out plan for distribution and sale
of the Products
xv. Ongoing marketing and advertising of the Products
xvi. Accounts receivable and collections
xvii. Account maintenance and customer service
2.1.3 Distribution. Upon execution of this Agreement, Licensee
shall provide to KOOP the "roll-out" plan referenced above within the Proposal
referenced in Section 6.5.1 below that shall set forth in specific detail the
following obligations of Licensee under this Agreement and relating to the
distribution of the Products, including:
a) Using its best efforts to ensure that the Products will
be carried by approximately five thousand (5,000)
individual retail outlets within the Territory by on or
about September 1, 2001 (the "Launch Date"), but in no
case later than thirty (30) days after the Launch Date;
b) Confirming that the inventory capability and
availability to produce the initial, appropriate amount
of Products with sufficient materials and capacity to
fulfill distribution unit requirements of the Products
shall be distributed to the aforementioned retail
outlets and available for retail purchase by the general
public no later than the Launch Date.
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2.1.4 Conduct of Business. Licensee, at all times and at its own
cost and expense, shall use its best efforts to aggressively and energetically
develop the market for and exploit the Products through the Territory in
accordance with the responsibilities of KOOP as set forth in Section 2.2, to
promote the sale and distribution of the Products through the distributor and
retail network in the Territory, and to enhance the reputation and goodwill
associated with the Products and the KOOP Marks, throughout the Territory.
Without limiting the generality of the foregoing, Licensee shall maintain a
reasonable inventory of the Products to facilitate timely distribution, and
maintain a sales force sufficient to provide effective distribution throughout
the Territory. Licensee shall use its best efforts to commence commercial
production of the Products at the earliest commercially practicable date
following execution of this Agreement.
2.1.5 Compliance with Laws. Licensee shall obtain all permits,
licenses and approvals necessary for the development, advertisement, manufacture
and distribution of the Products in the Territory. Licensee and all
Subcontractors shall conduct its activities under this Agreement in strict
compliance with all applicable laws, rules and regulations, including without
limitation minimum wage, benefits and overtime regulations and other laws
pertaining employees and workers.
2.1.6 Licensee agrees that, upon request by KOOP, Licensee shall
submit a reasonable number of the Products to KOOP and its agents and
representatives at no cost for advertising and promotional purposes. In
addition, KOOP shall be entitled to purchase a reasonable number of the Products
from Licensee at the cost of manufacture of such Products. No royalty shall be
owed KOOP for the Products so provided to KOOP.
2.1.7 Licensee shall ensure that the Products are safe, free
from defects and suitable for the purpose for which they are intended to be used
in accordance with industry standards. Licensee shall promptly notify KOOP in
writing of any complaint with respect to the Products. In addition, Licensee
shall provide the addresses of all of Licensee's facilities where the Products
are developed, manufactured or packaged. KOOP shall have the right to inspect
all such facilities of Licensee as set forth in Section 6.3.
2.1.8 Product Production Requirements. Licensee shall ensure
that, throughout the duration of this Agreement, it will have the resources
necessary to meet all production requirements relating to the Products, either
directly or through Subcontractors and/or other third parties, as necessary.
Upon full execution of this Agreement, and as a normal part of its business
operation, Licensee shall ensure that an outsourcing agreement with a third
party has been secured as a contingency for production of the Products in the
event Licensee cannot fulfill production requirements for a given period, to be
agreed upon by the parties. Any compensation to the Subcontractor/third party
for this production shall come solely from Licensee. Furthermore, in the event
Licensee notifies KOOP of its inability to fulfill production requirements for
the given period, KOOP shall have the option of either utilizing the third party
secured by Licensee or seeking its own third-party manufacturing opportunity, as
governed by Section 1.6.
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2.2 Responsibilities of KOOP. In consideration of the services provided
by Licensee herein, and in addition to KOOP's financial obligations set forth
herein, KOOP shall be responsible for participating in ongoing advertising and
marketing efforts relating to the Products, as mutually agreed upon by the
Parties and as set forth in the marketing plan referenced in Section 6.5.1
below.
2.3 Joint Management. Upon execution of this Agreement, the parties
shall form a joint executive team comprised of three (3) KOOP officers and two
(2) Licensee officers (the "Team") to, among other things, manage and monitor
the progress of the business against objectives; review opportunities; explore
product line extensions; and address and resolve issues not directly or
expressly contemplated by this Agreement. The Team shall meet no less than once
on a quarterly basis in person and/or via telephone at a location mutually
agreed upon by the parties. In addition, Licensee shall appoint a full-time
project manager whose sole responsibilities shall be the operational management
of the Products. Said project manager shall be the designated primary liaison
between KOOP and Licensee, and shall be expected to respond to all inquiries,
whether via phone, fax or email, from any member of the Team from KOOP within
one business day.
3. PAYMENTS AND ROYALTIES
3.1 Capital Contributions By KOOP. In consideration of the services to
be performed by Licensee hereunder, and in consideration for ownership of the
formulations for the Products, KOOP shall provide Licensee with an initial
capital contribution of $250,000.00, payable within thirty (30) days following
the Effective Date. Said capital contribution shall be used by Licensee solely
in connection with the Products, for matters such as slotting/shelving fees,
initial advertising and marketing and initial market research, as Licensee deems
appropriate. In addition, KOOP agrees to reinvest the equivalent of up to thirty
percent (30 %) of its Monthly Royalty into marketing and promotion of the
Products and/or trademark/brand registration and enforcement, based on the
current marketing needs as set forth in the marketing plan referenced in Section
6.5.1 below.
3.2 Issuance Of Warrants by KOOP. In consideration of the services to be
performed by Licensee hereunder, KOOP shall issue to Licensee warrants to
purchase 220,000 shares of KOOP common stock at a strike price of $0.35 per
share. KOOP shall formulate all necessary paperwork for said issuance upon
execution of this Agreement. The warrants shall vest no later than thirty (30)
days after the Launch Date, provided that Licensee has met its obligations set
forth in Section 2.1.3. In the event said obligations have not been met, the
warrants shall vest on the one-year anniversary of the Effective Date of this
Agreement. However, in the event this Agreement is terminated prior to said
contemplated vesting date, all warrants issued to Licensee shall revert to KOOP.
3.3 Royalties. During the term of this Agreement, and except as provided
in Section 3.10, Licensee shall pay KOOP a monthly royalty on all Net Sales
Revenues generated by Licensee in connection with the sale or distribution of
the Products in the preceding calendar month, beginning on the day KOOP approves
the Packaging for the Products. Said royalty shall be mutually agreed upon by
the parties, and shall be set forth in the Proposal referenced in Section 6.5.1.
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3.4 Minimum Sales. After the first six (6) months of the Initial Term of
this Agreement, Licensee shall be obligated to achieve and maintain minimum
guaranteed sales per Product as set forth in Exhibit D, with any failure on the
part of Licensee to meet said guaranteed monthly royalty to be governed by
Section 1.5.
3.5 Net Sales Revenues. For purposes of this Agreement, "Net Sales
Revenues" shall mean the total list price of the Products shipped by Licensee to
its customers less discounts to the extent permitted hereunder; provided that
such discounts shall not average more than fifteen percent (15%) of Licensee's
Net Sales Revenues on a company-wide basis, and any changes to such percentage
must be mutually agreed upon between the parties. Net Sales Revenues shall not
include any costs related to shipping. Licensee shall give cash discounts,
quantity discounts or promotional allowances relating to the Products if, and
only to the extent that, Licensee has provided KOOP notice thereof in Licensee's
marketing plans presented and mutually agreed upon in accordance with Section
6.6.
3.6 Payment. The royalty payments required to be made by Licensee to
KOOP shall be due and payable within three (3) business days of receipt by
Licensee of monies from those entities identified in Exhibit C. Each payment
shall be accompanied by a report reasonably acceptable to KOOP that is signed
and certified by a duly authorized officer of Licensee indicating the following
(broken down per Product): the number of units of each Product sold, the amount
of Net Sales Revenues, customers' names and numbers, and the monthly royalty.
3.7 Records. Licensee shall prepare and maintain, in accordance with
standard industry practice, complete and accurate books of account and records
containing all particulars that may be necessary for the purpose of complying
with the terms and conditions hereof, and for determining Net Sales Revenues and
royalties, which books and records shall be maintained separately and distinctly
from those relating to Licensee's businesses other than the sale of the
Products. KOOP and its duly authorized representatives shall have the right,
upon reasonable advance notice, during normal business hours to examine said
books of account and records to the extent reasonably required to verify the
amount of Net Sales Revenues any royalties payable for any month within the term
of this Agreement. In addition, KOOP may cause an independent public accounting
agency mutually agreeable to the parties, upon reasonable advance notice to
Licensee, but no more than one time in any twelve-month period (unless the
examination discloses an underpayment), to examine the books of account and
records described above to verify the accuracy of the statements submitted by
Licensee. KOOP shall have the right to make copies, at its expense, of any such
books and records. Such examination shall be at KOOP's expense; provided,
however, that if such examination discloses an underpayment of the total royalty
due to KOOP for any monthly period of four percent (4%) or more, then the
expenses of such examination shall be borne by Licensee upon the presentation by
KOOP of adequate substantiation of such underpayment.
3.8 Late Payments. In the event Licensee fails to timely pay to KOOP
royalties that are then due and payable, Licensee shall correct such failure to
pay within ten (10) days of receipt of notice of default from KOOP. Without
limitation of KOOP's rights under this Agreement, if KOOP uncovers an error in
Net Sales Revenues or royalty compensation due or payable to KOOP, Licensee
agrees to pay immediately all sums due, together with a late payment fee equal
to the amount of underpayment times the prime rate plus two percent (2%) or the
maximum amount permissible under law. The exclusive rights granted to Licensee
hereunder shall, unless waived in writing by KOOP, automatically convert to
non-exclusive rights when any such failure to pay within the ten-day cure period
occurs more than once in any twelve-month period.
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3.9 Manufacturing Fee. In the event KOOP consummates a business
relationship with a distributor and/or retail entity not identified in Exhibit
C, Licensee shall be entitled to receive a fee for the manufacture and
fulfillment of the Products based on direct costs to Licensee, as more fully set
forth in Exhibit E.
3.10 Holdback Fees. The parties agree to each have two percent (2%) of
their respective net revenues generated from this Agreement withheld by
Licensee, up to $100,000, to cover any and all necessary and incidental costs
associated with returns, restocking fees, etc. The parties agree to monitor the
amount of these fees being withheld on a quarterly basis for the purpose of
making adjustments as necessary and, as appropriate and/or required, to
equivocally distribute any unused funds entitled to each of the respective
parties.
4. CONFIDENTIAL AND PROPRIETARY INFORMATION
4.1 The parties may disclose to each other certain technical, medical,
scientific or other business information that is not generally available to the
public and that the parties deem to be confidential ("Confidential Information")
and proprietary ("Proprietary Information"). For purposes of this Agreement,
"Confidential Information" shall mean all confidential and proprietary advice,
knowledge, information, data, materials, trade secrets and know-how, including
without limitation Proprietary Information (or components thereof or
enhancements thereto). For purposes of this Agreement, "Proprietary Information"
shall mean the Product formulations and all information and know-how related to
the development, formulation, presentation, processing and manufacture of the
Products, disclosed by one party or its agents to the other party in the course
of performing this Agreement, and any and all documentation related thereto. The
parties acknowledge and agree that the Proprietary Information shall be owned
exclusively by KOOP and shall be deemed the Confidential Information of KOOP.
4.2 The parties agree to use Confidential Information solely in
conjunction with its performance under this Agreement and not to disclose or
otherwise use such information in any fashion. The parties, however, will not be
required to keep confidential any Confidential Information that (i) is publicly
available or (ii) is required by law or judicial process to be disclosed.
4.3 Unless required by law or to assert its rights under this Agreement,
and except for disclosure on a "need to know basis" to its own employees, and
its legal, investment, financial and other professional advisers on a
confidential basis, the parties agree not to disclose the terms of this
Agreement or matters related thereto without the prior written consent of the
other party.
4.4 This Section 4 shall survive for a period of five (5) years beyond
any expiration or termination of this Agreement.
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5. REPRESENTATIONS AND WARRANTIES
5.1 KOOP represents and warrants that: (a) its entry into this Agreement
does not violate any agreement with any other party; and (b) its performance
under this Agreement will conform to applicable U.S. laws and government rules
and regulations.
5.2 Licensee represents and warrants that: (a) its entry into this
Agreement does not violate any agreement with any other party; (b) its
performance under this Agreement and development, design, manufacture,
advertisement, sale and distribution of the Products will conform to all
applicable laws and government rules and regulations; (c) the services to be
rendered and the materials provided under this Agreement, including without
limitation the Products, neither infringe nor violate any patent, copyright,
trade secret, trademark or other right of any third party; and (d) the Products
are safe and free from defects.
6. QUALITY CONTROL
6.1 Licensee agrees that the Products shall be manufactured, packaged,
presented, advertised, promoted, publicized, distributed and sold only in a
manner that is consistent with the applicable industry standards for the
Products and commensurate with the prestige and reputation of the KOOP Marks.
Licensee agrees to use only those formulations agreed to with KOOP in writing
and any variation shall require KOOP's prior written approval. Licensee shall at
all times and in all respects exercise its rights and privileges granted under
this Agreement so as to reflect credibly on KOOP and so as not to injure, damage
or render less valuable the KOOP Marks and/or the Products and the goodwill
associated therewith.
6.2 Prior to any use of the KOOP Marks on or in connection with each
Product, Licensee must submit complete samples of each Product identified in
Exhibit A or each new Product added to Exhibit A (collectively, "Submitted
Sample(s)"). Whenever samples of the Products are required to be submitted to
KOOP for its approval, samples shall be submitted in quantities sufficient for
KOOP to assess the uniformity of the Products. KOOP shall notify Licensee in
writing whether each of the Submitted Samples meets KOOP's standards for each
Product. In the event KOOP determines that a Submitted Sample is not produced in
accordance with KOOP's standards, KOOP shall promptly notify Licensee and shall
specify in what respects the Submitted Sample is unacceptable, and Licensee
shall resubmit corrected samples for KOOP's approval. All Products produced and
sold by Licensee shall be substantially identical to the Submitted Samples that
have been approved by KOOP (collectively, "Approved Samples"), subject to
reasonable, immaterial variations within the highest quality,
industry-acceptable tolerance range (the "Tolerance Range"). Licensee agrees not
to produce, sell or distribute any Products using material variations of the
formulas developed by Licensee and approved by KOOP without the prior written
approval of KOOP. The parties will make good faith efforts to develop new
products to expand the line of Products. Any new Products resulting from
modification of any of the formulas that KOOP wishes to have produced, marketed
or sold by a third party shall be added to Exhibit A by the parties by means of
a modification of this Agreement in accordance with Section 11 and shall become
Products covered by this Agreement. KOOP agrees to consider improvements and
changes to the formulations as are reasonably necessary to make the Products
successful in the marketplace and to make such additional changes in keeping
with KOOP's standards as are reasonably necessary to permit Licensee to produce
the Products in accordance with its own standards and the standards prevalent in
Licensee's industry. Notwithstanding anything to the contrary herein, if either
party proposes a new product and the parties are unable to agree upon the
formulations and packaging therefor within thirty (30) business days, KOOP shall
have the right to license the KOOP Marks and KOOP Proprietary Information in
connection with the production, promotion, advertising, sale and distribution of
such product to another person or entity or to produce, promote, advertise, sell
and/or distribute such product(s) on its own behalf, subject in each case to the
prohibitions contained in this Agreement regarding the use of Licensee's
Proprietary Information by KOOP.
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6.3 KOOP shall have the right, during normal business hours and upon
reasonable notice to Licensee, to inspect all manufacturing facilities utilized
by Licensee in, and to examine all processes and records relating to, the
production, packaging and distribution of the Products, including, without
limitation, the right to open and inspect packages of Products, and to make such
other tests and inspections as it shall deem necessary to insure the quality of
the Products. In addition, no more frequently than once every two (2) months,
KOOP may, at any time during normal business hours with reasonable notice to
Licensee, perform a plant-wide quality assurance audit in Licensee's facilities
for the purpose of ensuring Licensee's compliance with sound sanitation
practices, regulatory requirements, other governmental standards and
regulations, good manufacturing practices and other tests to be agreed upon
between the parties in good faith.
6.4 In order to ensure the freshness of the Products, each packaging or
label for the Products shall be legibly stamped with a product expiration date
and Licensee shall take all steps reasonably required by KOOP to insure that the
Products are not sold or distributed to the consumer beyond such product
expiration dates. The appropriate shelf life and applicable expiration date for
each Product shall be mutually agreed upon by both parties and shall not be
longer than the shelf life applicable to other similar products manufactured and
sold by Licensee. Licensee shall take all necessary steps requested by KOOP to
correct any deficiencies that might affect the quality of the Products,
including, without limitation, the recall of Products that are being sold beyond
their expiration dates or that have been determined by KOOP, upon testing of
samples purchased in the open market, to present a health hazard to the consumer
in accordance with this section.
6.5 Licensee agrees that it will use and display the KOOP Marks only on
such items and in such form and manner as is specifically approved by KOOP in
writing. Licensee must obtain the prior written approval of KOOP for all
designs, specifications, colors, materials, contract manufacturers and quality
standards of all packaging for the Products, including but not limited to any
labels, instructions, containers and displays intended to be utilized in
connection with the Products (collectively, the "Packaging"). With respect to
obtaining such approvals, the following shall apply:
6.5.1 Within thirty (30) days of the execution of this
Agreement, Licensee shall submit to Licensor for its review a product proposal
(the "Proposal"), on a per-Product basis, that includes the following
information: the finalized Product formulations; a market and competitive
overview and analysis related to the Product; projected positioning of the
Product; existing and/or planned distribution and sales channels for the
Product; Product Packaging; suggested retail pricing for the Product; projected
sales figures for the Product; costs to Licensee relating to the Product; the
proposed royalties to KOOP relating to the Product; and such other related
information as KOOP may request. KOOP shall provide its written comments on the
Proposal within ten (10) business days of receipt, and Licensee shall revise the
Proposal in response to any comments from KOOP. The final Proposal shall be
mutually agreeable to both parties and shall be signed by both parties prior to
further implementation by Licensee.
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6.5.2 With respect to the initial line of the Products, and
thereafter from time to time during this Agreement with respect to any
additional items of Packaging proposed to be used by Licensee, Licensee shall
submit to KOOP prototypes of each item of Packaging for KOOP's written approval.
KOOP shall notify Licensee of any objections of such prototype samples. In the
event KOOP objects to any aspect of any prototype, KOOP shall state the
particulars of such objections in writing and shall further set forth KOOP's
suggested modifications in order to remove such objections. Licensee shall be
entitled to resubmit a corrected prototype for approval. Licensee shall not
manufacture or use any item of Packaging without having received KOOP's prior
written approval for such item of Packaging. All Packaging manufactured or used
in connection with the Products shall be substantially identical in all respects
to the prototypes that have been approved by KOOP (the "Final Prototypes").
Immediately upon commencement of commercial production or each item of Packaging
and at each subsequent printing thereof, Licensee shall provide KOOP with a
production sample of each item of Packaging. If, in KOOP's reasonable judgment,
the production sample is not substantially identical to the Final Prototype,
KOOP shall promptly notify Licensee and specify in what respects the production
samples are nonconforming with the Final Prototype. Upon receipt of such notice,
Licensee shall immediately stop production of the item of Packaging until a
production sample is submitted to KOOP that KOOP reasonably determines is
substantially identical in all respects to the Final Prototype. Licensee agrees
not to affix or otherwise use KOOP Marks on any item of Packaging in connection
with the Products until Licensee receives, in writing, KOOP's prior written
approval to do so.
6.5.3 All Products shall bear at least one label or display with
a XXXX Xxxx in a form approved by KOOP in accordance with this Section 6.5.3.
6.5.4 Once an item has been approved by KOOP, Licensee shall
have no obligation to resubmit the same items from the same print run prior to
each subsequent use. Either party may request modification of Packaging or
develop new Packaging from time to time, provided, however, that the parties
make good faith efforts to consult with each other in such modification and
development and further provided that Final Prototypes shall be submitted to
KOOP for its written approval prior to commercial production in accordance with
the procedures set forth in this Section 6.
6.6 The parties shall together mutually determine the creative content
and themes of all advertising for the Products, and such advertising shall be
appropriate in light of the prestige and reputation of the KOOP Marks. In
furtherance of the foregoing, KOOP shall have the right to approve in advance
any and all advertising, marketing, promotion or public relations programs to be
conducted by Licensee, including, without limitation, the materials, themes,
talent, spokespersons, media, standards, policies and uses of such materials and
programs, for the Products and all trade materials, invoices, stationary and
other printed matter prepared by or for Licensee for use in connection with the
Products, and any press releases, public statements or responses to press
inquiries relating in any way to this Agreement or to the Products.
Notwithstanding the foregoing, KOOP acknowledges that Licensee may not have
control over cooperative advertisement prior to publication of such
advertisement and therefore, cannot submit such cooperative advertisement to
KOOP for its prior approval, but Licensee shall submit representative samples of
such cooperative advertisements upon KOOP's request. At least once each year,
Licensee will submit, for KOOP's review, a presentation detailing Licensee's
plans to market, promote and advertise the Products and a complete business plan
for the next four calendar quarters, including marketing, advertising and sales
plans detailing sales, advertising and promotional programs and expenditures for
each quarter, and such annual marketing plan shall be mutually agreeable to both
parties. Licensee agrees to support the Products with adequate advertising and
promotional activities with those entities identified in Exhibit C and to spend
during each year the amounts agreed upon in each annual marketing plan for such
activities. Only those costs that are directly allocable to advertising or
promoting the Products shall in included in calculating the annual advertising
expenditures.
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6.7 KOOP may require Licensee to recall, at Licensee's expense, any
Product and/or item of Packaging that is nonconforming to the respective
Approved Sample (and outside the Tolerance Range) or the Final Prototype, as
applicable, which is in violation of Section 6 and/or which has been sold, used
or distributed without prior written approval of KOOP. In the event Licensee
fails to promptly take all reasonable steps to effect the recall, KOOP may
purchase or collect, at Licensee's expense, any Products and/or item of
Packaging found in the marketplace which, in KOOP's reasonable judgment, is
nonconforming and outside the Tolerance Range or otherwise in violation of this
Agreement as set forth above.
6.8 KOOP shall cooperate fully and will expend its reasonable best
efforts to perform its evaluations of all required samples and prototypes and,
when satisfactory, will provide its written approval. All samples and prototypes
that are properly submitted to KOOP for approval under Section 6 that have not
been disapproved within fifteen (15) business days after receipt shall be deemed
approved.
7. OWNERSHIP AND PROTECTION OF INTELLECTUAL PROPERTY AND PRODUCT FORMULATIONS
7.1 Intellectual Property. All materials used by Licensee in connection
with the KOOP Marks are proprietary to KOOP or its suppliers, and are protected
by law, including but not limited to United States copyright, trade secret,
patent and trademark law. Licensee acknowledges and agrees that: (a) KOOP owns
all right, title and interest in and has exclusive rights to the KOOP Marks and
all intellectual property and trade secret rights relating to the Products,
including without limitation the product formulations (collectively, the "KOOP
IP"); (b) Licensee shall not represent that it has any right, title or interest
in or to any KOOP Marks or KOOP IP, or take any action which is inconsistent
with KOOP's exclusive ownership thereof; (c) all use of the KOOP Marks by
Licensee shall inure to the benefit of KOOP; and (d) Licensee shall not contest,
dispute or intentionally impair, directly or indirectly, KOOP's exclusive right,
title and interest in and to the KOOP Marks or the KOOP IP or the validity
thereof. Licensee shall not apply for registration or protection or seek to
obtain ownership of the KOOP Marks or KOOP IP in any nation.
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7.2 Product Formulations. All formulations developed by Licensee
relating to the Products shall be jointly owned by the parties. Upon completion
of each such formulation approved by KOOP, Licensee shall deliver to KOOP all
necessary and relevant information and documentation, in a mutually acceptable
format, relating to each such formulation. The parties agree in good faith to
work together to perform all necessary tasks relating to the protection of each
party's ownership in the Product formulations.
7.3 Registration. KOOP shall have the sole and exclusive right, at its
own expense, to seek and obtain trademark and copyright registrations for any
and all of the KOOP Marks, Packaging or advertising, or any portion or
combination thereof, and to seek and obtain patents for any of the Products.
Licensee shall cooperate with KOOP in the preparation, execution, filing and
prosecution of trademark, copyright and patent applications. Licensee shall, at
no cost to KOOP, provide samples of the Products and Packaging to KOOP for use
in filing and prosecuting such applications. Notwithstanding such cooperation,
Licensee shall have no ownership interest in such applications, or in the
patents or registrations arising therefrom.
7.4 Infringement.
7.4.1 Infringement by Third Parties. Licensee shall promptly
notify KOOP of any known or suspected use of the KOOP Marks or KOOP IP by others
not duly authorized by KOOP. Notification of such infringement shall include all
details known by Licensee that would enable KOOP to investigate such
infringement. Nothing in this section shall require KOOP to bring suit for the
infringement of any of the KOOP Marks or KOOP IP. Licensee shall have no right
to initiate an action of its own against an alleged infringer without first
obtaining the prior express written approval of KOOP. Licensee agrees to fully
cooperate with KOOP in prosecution of any action against an infringer, including
without limitation the provision of evidence and testimony in such action. In
the event that KOOP should attempt to pursue any infringer and obtains a
recovery from said infringers, whether by adjudication or settlement, KOOP shall
be entitled to retain the entirety of any such recovery to the exclusion of
Licensee.
7.4.2 Alleged Infringement by Licensee. In the event of any
suit, action or other proceeding against Licensee involving any claim of
infringement based upon Licensee's use of the KOOP Marks or sale of the
Products, Licensee shall promptly send KOOP copies of all papers served in such
suit, action or other proceeding. KOOP, at its sole cost and expense, shall have
the exclusive right, in its sole discretion, to defend all claims of
infringement in any such suit, action or other proceeding. Licensee, at its sole
cost and expense, shall provide testimony and other evidence in any such suit,
action or other proceeding, and shall otherwise cooperate with KOOP in any way
necessary or desirable in order to permit KOOP successfully to defend such suit,
action or other proceeding.
8. LIMITATION OF LIABILITY; DISCLAIMER
8.1 IN NO EVENT SHALL KOOP BE LIABLE TO LICENSEE FOR ANY SPECIAL,
INDIRECT, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY NATURE, UNLESS
KOOP ENGAGES IN CONDUCT THAT IS INTENTIONAL OR RECKLESS. THE FOREGOING SHALL
APPLY REGARDLESS OF THE NEGLIGENCE OR OTHER FAULT OF KOOP AND REGARDLESS OF
WHETHER SUCH LIABILITY SOUNDS IN CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR
ANY OTHER THEORY OF LIABILITY.
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8.2 EXCEPT AS SET FORTH IN SECTION 5, KOOP MAKES NO, AND LICENSEE
ACKNOWLEDGES THAT KOOP HAS NOT MADE ANY, AND HEREBY SPECIFICALLY DISCLAIMS ANY,
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION
ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND
ANY WARRANTY OF NON-INFRINGEMENT.
9. TERM AND TERMINATION
9.1 Term. The initial term of this Agreement (the "Initial Term") begins
upon the Effective Date and shall continue until the third anniversary of the
Effective Date, unless sooner terminated in accordance with this Agreement. The
Initial Term shall be automatically renewed for successive one-year periods
unless terminated by either party within ninety (90) days of the expiration of
the Initial Term.
9.2 Termination for Cause.
(a) KOOP will have the right to immediately terminate this
Agreement if Licensee is in default of any obligation herein, and such breach is
incapable of being cured, or if such breach is capable of cure, such breach is
not cured within thirty (30) days (or ten (10) days with respect to any default
in any payment obligation) after receipt of written notice of such default from
KOOP or within such additional cure period as KOOP may authorize.
(b) KOOP will have the right to immediately terminate this
Agreement if Licensee is in default of any obligation set forth in Sections 1.2,
1.4, 1.7, 2.1.5, 2.1.7, 4, 5.2, 6, 7, 10, 11.2 or 11.9, or if Licensee engages
in any conduct or practice which is detrimental to the good name, goodwill or
reputation of KOOP, the KOOP Marks, Xx. Xxxx or the Products, and such breach is
incapable of being cured, or if such breach is capable of cure, such breach is
not cured within five (5) business days after receipt of written notice of such
default from KOOP or within such additional cure period as KOOP may authorize.
9.3 Termination for Tobacco Affiliation. Licensee shall promptly notify
KOOP prior to commencing any activities relating to a Tobacco Industry
Affiliation (as defined below). After receiving such notice or learning of any
such Tobacco Industry Affiliation, KOOP may terminate this Agreement at any time
upon written notice without liability of any kind; provided, however, that in
the event of any inadvertent breach of this provision by Licensee, Licensee
shall have ten (10) business days to remedy any such breach. For purposes of
this Agreement, "Tobacco Industry Affiliation" shall mean being an entity, or
being under the control of an entity, which engages in the manufacture or
wholesale distribution of tobacco or tobacco products.
9.4 Termination for Insolvency. Either party shall have the right to
immediately terminate this Agreement upon written notice in the event that the
other party (a) voluntarily or involuntarily becomes the subject of a petition
in bankruptcy or of any proceeding relating to insolvency, receivership,
liquidation or composition for the benefit of creditors or (b) notifies the
other party in writing of its inability to pay its debts as they become due.
Subject to the laws of insolvency and bankruptcy, no termination of this
Agreement shall affect the right of KOOP to receive royalties and statements of
account due as to activities of Licensee prior to such termination, and no such
termination shall relieve either party of its obligations thereunder that
subsist or are to be performed after such termination.
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9.5 Consequences of Termination. In the event that either party
terminates this Agreement under a provision of this Section 9, upon the
effectiveness of such termination, Licensee will immediately cease production of
the Products and discontinue all use of KOOP Marks and KOOP IP. In the event
KOOP terminates this Agreement other than for cause, KOOP shall have the right
to purchase any and all materials relating to the Products and Packaging from
Licensee. In the event this Agreement is terminated due to a material breach on
the part of Licensee that has not been cured, ownership of any and all materials
relating to the Products and Packaging shall automatically and immediately
revert to KOOP. Licensee shall have the right to distribute and sell all
finished Products that are unsold or undistributed on the date of termination,
subject to KOOP's prior approval. In the case of both finished Products and
Product-in-process, KOOP shall have the right to require advance payment of the
royalties due in respect thereof if this Agreement was terminated by Licensor
for Licensee's failure to pay royalties or pursuant to Section 9.4. In the event
of termination under this section, the exclusive rights granted to Licensee
hereunder shall automatically be changed to non-exclusive rights upon the
delivery of notice of termination.
9.6 Survival. The rights, obligations and limitations under Sections
1.4, 1.7, 3, 4, 5, 7, 8, 10 and 11 and any payment obligations accrued but not
paid prior to termination shall survive termination, of this Agreement.
9.7 Compliance with Laws. If at any point during the term of this
Agreement, either party's performance under this Agreement conflicts with any
material law or regulation, the parties may suspend performance under this
Agreement and negotiate in good faith to amend this Agreement so that each
party's performance hereunder complies with the laws and regulations. If after
thirty (30) days, the parties are unable to agree on a mutually acceptable
amendment, either party may immediately terminate this Agreement upon written
notice to the other party.
10. INDEMNIFICATION; INSURANCE
10.1 By KOOP. KOOP agrees to defend, indemnify and hold Licensee and its
officers, directors, agents and employees harmless from and against any and all
claims, demands, liabilities, actions, judgments, and expenses, including
reasonable attorneys' fees, arising out of or related to any breach or alleged
breach of any of KOOP's representations and warranties hereunder; provided that
(i) Licensee notifies KOOP promptly in writing of any such claim, (ii) KOOP has
the sole control of the defense and all related settlement negotiations, and
(iii) Licensee provides KOOP with all reasonably necessary assistance,
information and authority to perform the foregoing at KOOP's expense. KOOP also
agrees to cause Licensee to be named as an additional insured on any insurance
policy maintained by KOOP with respect to KOOP's conduct and operations relating
directly to the subject matter of this Agreement.
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10.2 By Licensee. Licensee agrees to defend, indemnify and hold KOOP and
its officers, directors, agents and employees harmless from and against any and
all claims, demands, liabilities, actions, judgments, and expenses, including
reasonable attorneys' fees, arising out of or related to: (a) any breach or
alleged breach of any of Licensee's representations, warranties or covenants
hereunder; (b) any proceedings against Licensee and/or KOOP by any federal,
state and/or local regulatory agency (including but not limited to the FDA and
DEA) relating to the development, manufacturing, distribution and/or commercial
use of the Products; and (c) any injury to any person or entity caused by such
person's use of or reliance on the Products, including without limitation any
product defect or product liability claims; provided that (i) KOOP notifies
Licensee promptly in writing of any such claim, (ii) Licensee has the sole
control of the defense and all related settlement negotiations, and (iii) KOOP
provides Licensee with all reasonably necessary assistance, information and
authority to perform the foregoing at Licensee's expense. At a reasonable and
customary period prior to distribution of a given Product, Licensee shall
procure insurance, at its own expense, and shall at all times maintain in full
force and effect at least $10,000,000 per occurrence and in the aggregate of
liability insurance coverage with respect to the Products, and shall name KOOP
as an additional insured. Licensee shall provide for at least thirty (30) days
prior notice to KOOP of any cancellation or substantial modification. Prior to
any such cancellation, Licensee shall provide KOOP with a certificate of
insurance evidencing that a new insurance policy with the same coverage is in
place prior to such termination. Prior to the start of each calendar year and at
appropriate intervals throughout the year, Licensee shall provide KOOP with a
certificate of insurance and proof that the premium has been paid.
11. GENERAL TERMS AND CONDITIONS
11.1 Independent Contractors. The parties to this Agreement are
independent contractors. Neither party is an agent, representative or partner of
the other party. Neither party shall have any right, power or authority to enter
into any agreement for or on behalf of, or to incur any obligation or liability
for, or to otherwise bind, the other party. This Agreement shall not be
interpreted or construed to create an association, joint venture, co-ownership,
co-authorship, or partnership between the parties or to impose any partnership
obligation or liability upon either party.
11.2 Assignment. This Agreement and KOOP's rights and obligations
thereunder shall be fully assignable by KOOP. Licensee shall not assign,
sublicense or otherwise transfer (voluntarily, by operation of law or otherwise)
this Agreement or any right, interest or benefit under this Agreement, without
the prior written consent of KOOP. Any attempted assignment, sublicense or
transfer by Licensee in derogation hereof shall be null and void. Subject to the
foregoing, this Agreement shall be fully binding upon, inure to the benefit of
and be enforceable by the parties hereto and their respective successors and
assigns. Any change of control of Licensee shall be deemed an "assignment" for
purposes of this Section 11.2 and shall be governed by this Section 11.2. As
used herein, "change of control" shall include any event (including, without
limitation, a merger, sale, liquidation, transfer, encumbrance or other
disposition) which results in a change of the legal, beneficial or equitable
ownership, directly or indirectly, of more than fifty percent (50%) of a class
of voting equity of either party.
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11.3 Modifications. No change, amendment or modification of any
provision of this Agreement or waiver of any of its terms will be valid unless
set forth in writing and signed by the party to be bound thereby.
11.4 Governing Law; Jurisdiction. This Agreement shall be interpreted,
construed and enforced in all respects in accordance with the laws of the State
of California. Each party irrevocably consents to the exclusive jurisdiction of
any state or federal court for or within Los Angeles County, California over any
action or proceeding arising out of or related to this Agreement, and waives any
objection to venue or inconvenience of the forum in any such court. In the event
any obligation of this Agreement must be enforced, through litigation or
otherwise, the prevailing party shall be entitled to reasonable attorneys fees
and costs.
11.5 No Waiver. The failure of either party to insist upon or enforce
strict performance by the other party of any provision of this Agreement or to
exercise any right under this Agreement shall not be construed as a waiver or
relinquishment to any extent of such party's right to assert or rely upon any
such provision or right in that or any other instance; rather the same shall be
and remain in full force and effect.
11.6 Notice. Any notice, approval, request, authorization, direction or
other communication under this Agreement shall be given in writing, will
reference this Agreement, and shall be deemed to have been delivered and given
(a) when delivered personally; (b) three (3) business days after having been
sent by registered or certified U.S. mail, return receipt requested, postage and
charges prepaid; or (c) one (1) business day after deposit with a commercial
overnight courier, with written verification of receipt. All communications will
be sent to the addresses set forth below or to such other address as may be
designated by a party by giving written notice to the other party pursuant to
this Section 11.6.
If to Licensee: If to KOOP:
00 Xxxxxxx Xxxxxx 000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx Attention: Legal Department
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
11.7 Entire Agreement. This Agreement and the Exhibits attached hereto
and incorporated herein by reference constitute the entire agreement between the
parties and supersede any and all prior agreements or understandings between the
parties with respect to the subject matter hereof. Neither party shall be bound
by, and each party specifically objects to, any term, condition or other
provision or other condition which is different from or in addition to the
provisions of this Agreement (whether or not it would materially alter this
Agreement) and which is proffered by the other party in any purchase order,
correspondence or other document, unless the party to be bound thereby
specifically agrees to such provision in writing.
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11.8 Headings; Severability. The headings used in this Agreement are for
convenience only and are not to be construed to have legal significance. In the
event that any provision of this Agreement conflicts with the law under which
this Agreement is to be construed or if any such provision is held invalid by a
court with jurisdiction over the parties to this Agreement, such provision shall
be deemed to be restated to reflect as nearly as possible the original
intentions of the parties in accordance with applicable law, and the remainder
of this Agreement shall remain in full force and effect.
11.9 No Solicitation or Employment. During the term of this Agreement
and for two (2) years after the expiration or termination hereof, the parties
agree that they and their affiliates shall not solicit to employ or employ any
employee of the other party without prior written consent. For the purpose of
this Section 11.9, "affiliate" means any entity that directly or indirectly
controls, or is under common control with, or is controlled by the party at
issue; "control" (including, with its correlative meanings, "controlled by" and
"under common control with") means possession, directly or indirectly, of the
power to direct or cause the direction of management or policies (whether
through ownership of securities or partnership or other ownership interests, by
contract or otherwise).
11.10 Counterparts. This Agreement may be executed in multiple
counterparts, all of which, taken together, shall constitute one and the same
instrument.
11.11 Remedies. The parties acknowledge and agree that money damages
alone are not an adequate remedy for any breach of any provision of this
Agreement. Therefore, in the event of a breach or threatened breach of any
provision of this Agreement, the parties agree and consent that, in addition to
all other remedies, shall have the right to immediately seek, obtain and enforce
injunctive relief prohibiting the breach or compelling specific performance,
without the need to post any bond or for any other undertaking, including
without limitation proving the inadequacy of monetary damages.
11.12 Force Majeure. Neither party shall be liable for delay or default
in the performance of its obligations under this Agreement (other than for
non-payment) if such delay or default is caused by conditions beyond its
reasonable control, including, but not limited to, fire, flood, accident,
earthquakes, telecommunications line failures, storm, acts of war, riot,
government interference, strikes and/or walk outs. In the event of a force
majeure event that lasts longer than thirty (30) days, the party not
experiencing the force majeure event may terminate this Agreement upon written
notice to the other party.
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IN WITNESS HEREOF, the parties hereto have caused this Agreement to be
executed by duly authorized officers or representatives as of the Effective
Date.
LICENSEE XXXXXX.XXX, INC.
By: By:
------------------------------- ------------------------------------
Name: Name:
----------------------------- -----------------------------------
Title: Title:
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