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EXHIBIT 10.2
* CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS
INTELLECTUAL PROPERTY LICENSE AGREEMENT
This Agreement (the "Agreement") is made by and between
LICENSOR: Aruba International PTY. Ltd., of Rocklea, Australia; and,
LICENSEE: Lipid Sciences, Inc., of the United States of America,
with reference to the following facts:
A. LICENSOR is the owner of all of the right, title and interest in the
United States Patents, Australian Patent, and other Patent Applications
identified in Appendix A to this Agreement, and has the right to grant
exclusive licenses thereto.
B. LICENSEE desires to obtain an exclusive, worldwide license to make,
use, and sell products and to practice the inventions covered by the
Licensed Patents, as well as any continuations, divisionals, and
equivalents thereof.
In consideration of the foregoing and the mutual covenants recited below, the
parties agree as follows:
1. DEFINITIONS.
1.1 Effective Date. "Effective Date" means the date upon which the last
signature necessary for full execution of this Agreement has been supplied.
1.2 Term. "Term" as used in this Agreement means the period beginning
on the Effective Date and ending on termination of this Agreement, as provided
in Article 6.
1.3 Licensed Patents. "Licensed Patents" as used in this Agreement
means, collectively, all of the Patents and Patent Applications identified in
Appendix A to this Agreement, as well as any patent issued in the future from
any reissue, re-examination, continuation, divisional or foreign counterpart
thereof, and further includes patents issued whose claims are directed to
subject matter encompassed by the Licensed Invention.
1.4 Licensed Invention. "Licensed Invention" means any composition of
matter, method or process relating to alterations in the lipid structure of
biological
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material; e.g., including, but not limited to, delipidization of soft tissue
(e.g., atheroma), inactivation of lipid-enveloped organisms (e.g., viruses), as
well as know-how, materials, trademarks, copyrights and technology which has or
may be acquired by or on behalf of either or both of the LICENSOR, and which is
useful in or necessary toward the development, optimization and/or
commercialization of any composition of matter, method or process defined by the
claims of the Licensed Patents.
1.5 Revenue. "Revenue" means the amount of income from gross sales,
less taxes, costs of distribution, and costs of manufacture incurred by
LICENSEE.
1.6 Field of Use. "Field of Use" means any activity, research or
endeavor to which the Licensed Invention and Licensed Patents may be applied.
1.7 Basic Research. "Basic Research" refers to work directed toward the
discovery and understanding of biological processes, in contrast to work
directed toward the discovery, development or improvement of specific
compositions of matter, methods or processes of potential medical and/or
commercial utility.
1.8 Applied Research. "Applied Research" refers to work directed toward
the discovery, development or improvement of specific compositions of matter,
methods or processes of potential medical and/or commercial utility which are
potentially useful in, or potentially necessary to, the application of any
technological aspect of the Licensed Patents or Licensed Invention. Applied
Research therefore includes, without limitation, research relating to
therapeutic, diagnostic and pharmaceutical applications, as well as tools for
further research.
1.9 External Research Funding. "External Research Funding" means monies
received by or on behalf of LICENSOR under a research grant or sponsorship
contract, from any source other than LICENSEE, which External Research Funding
is intended to be used for Applied Research relating to the development of any
composition of matter, method or process falling within the definitions of the
Licensed Patents and/or Licensed Invention provided in this Agreement. As used
in this Agreement, External Research Funding does not include monies received
under research grants or sponsorship contracts for Basic Research.
2. LICENSE.
2.1 License Grant. LICENSOR hereby grants to LICENSEE an exclusive,
license under the Licensed Patents, and to the Licensed Invention, to make, use,
import, offer to sell, and sell compositions of matter, methods and processes
which are covered
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under the Licensed Patents, and/or which are encompassed by the Licensed
Invention, in any and all Fields of Use, with the right to grant sublicenses, as
set forth in this Agreement.
2.2 Assistance by LICENSOR. At the expense of LICENSEE, LICENSOR shall
have a continuing obligation under this Agreement, until its termination, to
provide technical assistance, as well as know-how, materials, trademarks,
copyrights and technology which has or may be acquired by or on behalf of either
or both of the LICENSOR, and which is useful in or necessary toward the
development, optimization and/or commercialization of any composition of matter,
method or process defined by the claims of the Licensed Patents, to LICENSEE.
2.3 Basis. The foregoing license is granted solely under the Licensed
Patents and to the Licensed Invention. No license under any other patents or
intellectual property of LICENSOR's are granted to, nor shall one be implied in
favor of, LICENSEE. Furthermore, no license under any other patents or
intellectual property of LICENSEE is granted to, nor shall one be implied in
favor of, LICENSOR.
2.4 Improvements and Modifications Made by LICENSEE. Improvements and
modifications made (conceived and/or reduced to practice) to the subject matter
of the Licensed Patents and/or the Licensed Invention by LICENSEE and/or
LICENSOR, whether made solely or jointly, shall be owned by LICENSEE. LICENSOR
agrees to execute assignments and other documents, prepared at LICENSEE's
expense, which are necessary to document title in improvements and modifications
provided for in this Section.
2.5 Marking. During the Term of this Agreement, LICENSEE shall affix to
compositions of matter offered for sale, and to materials accompanying the sale
of methods and processes, covered under the Licensed Patents, a statement in
substantially the form: "Licensed under United States Patent Nos. 5,911,698;
5,744,038, and 4,895,558; Australian Patent Nos. 594964, 693458 and 695826; and,
other pending patent applications".
3. PAYMENTS.
3.1 Minimum Annual Royalty Payment.
3.1.1 First Minimum Payment Due on Funding. LICENSEE shall pay
LICENSOR an annual minimum royalty of Five Hundred Thousand Dollars ($500,000).
The first such payment shall not be due until and unless LICENSEE achieves a
first
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funding level of Five Million Dollars ($5,000,000), at which point payment of
Five Hundred Thousand Dollars ($500,000) shall be due and payable within thirty
(30) days of written notice given by LICENSEE to LICENSOR, given as provided in
this Agreement, that such first funding level has been achieved. For purposes of
this provision, a first funding level of at least Five Million Dollars
($5,000,000) shall be considered to have been achieved on actual receipt by
LICENSEE of such funds.
3.1.2 Due Date for Subsequent Minimum Payments. Subsequent
minimum annual royalties shall be due and payable at each anniversary following
the date upon which the first such payment was due, in any year in which the
total amount of Running Royalties due under the Paragraph 3.2 does not meet or
exceed Five Hundred Thousand Dollars ($500,000).
3.1.3 Payment on Entry into Clinical Trials. LICENSEE shall
pay LICENSOR Two Hundred Fifty Thousand Dollars ($250,000) on initiation of
human clinical trials utilizing subject matter covered by the Licensed Patents
or the Licensed Invention.
3.2 Running Royalty.
3.2.1 Royalty Payment Amount. For the rights granted in this
Agreement, and subject to Paragraph 3.2.2 and 3.2.3, LICENSEE shall pay LICENSOR
a royalty of [ * %] of LICENSEE's revenue generated under this Agreement, for
the sale anywhere in the world of any composition of matter, method or process
covered by the Licensed Patents, and/or encompassed by the Licensed Invention.
3.2.2 Accrual. A running royalty as to any composition of
matter, process or method sold by LICENSEE under this Agreement shall accrue on
the day a shipment is made or invoiced to a LICENSEE customer, whichever occurs
first.
3.2.3 Payment. All Running Royalty payments due to LICENSOR
shall be made quarterly by LICENSEE, with the first quarter being defined as
January 1 through March 31, the second quarter as April 1 through June 30, the
third quarter as July 1 through September 30, and the fourth quarter as October
1 through December 31. Payment of Running Royalties shall be made to LICENSOR
not later than the thirtieth (30th) day (the "Royalty Due Date") after the end
of the period to which the payment relates.
3.2.4 Accounting Statements. LICENSEE shall provide LICENSOR
with a statement of royalties due LICENSOR under this Agreement quarterly on or
before the
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Royalty Due Date, setting forth the amount due to LICENSOR for the period and,
in reasonable detail, the factual basis for calculating the amount.
3.3 Payment for Use of External Research Funding.
3.3.1 Payment Amount. LICENSEE shall pay LICENSOR a sum equal
to 10% of External Research Funding received by or on behalf of LICENSEE which
is actually expended for Applied Research, as defined in this Agreement.
3.3.2 Notification of Receipt of Funding. On receipt of monies
comprising External Research Funding, LICENSOR shall provide written notice of
such receipt to LICENSEE, which notice shall be accompanied by, or followed
within a reasonable period of time, by a research plan detailing how the funds
will be used for Applied Research, including: (a) the amount and source of the
funds received; (b) if the External Research Funding monies are payable as a
lump sum or incrementally (e.g., annually); (c) a date upon which the research
is anticipated to begin, if not already in progress; (d) the goals sought to be
achieved by the research; and, (e) how such goals relate to the discovery,
development or improvement of specific compositions of matter, methods or
processes of potential medical and/or commercial utility which are potentially
useful in, or potentially necessary to, the application of any technological
aspect of the Licensed Patents or Licensed Invention.
3.3.3 Acceptance of Research Plan. Within thirty (30) days of
its receipt of the Notification provided for by Section 3.3.2, LICENSEE shall
provide LICENSOR with written notice indicating whether LICENSEE agrees that the
monies which will fund the work described in the Research Plan provided for by
Section 3.3.2 comprise External Research Funding for which payment is provided
under Section 3.3 of this Agreement, which notice should include a brief
statement of reasons for the LICENSEE's decision.
3.3.4 Preliminary Dispute Resolution. If LICENSOR disputes
LICENSEE's decision, as provided for by Section 3.3.3, the matter shall be
referred for evaluation to an Evaluation Committee comprised of 2 members of the
LICENSEE's Scientific Advisory Board, or other representatives nominated by
LICENSEE, and Xx. Xxxx Xxxx, or other representative nominated by Xx. Xxxx. The
Evaluation Committee shall be requested to provide, within forty-five (45) days
or as soon as practicable, its non-binding opinion regarding whether the monies
which will fund the work described in the Research Plan provided for by Section
3.3.2 comprise External Research Funding for which payment is provided under
Section 3.3 of this Agreement. Nothing in this provision shall preclude the
parties from pursuing any other remedies to which they may be entitled under law
or this Agreement after the expiration of the 45 day
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minimum period for consideration of disputes by the Evaluation Committee;
however, the parties agree to allow the Evaluation Committee, whenever
reasonably possible, to complete its consideration and render an opinion even if
the Committee is unable to do so within 45 days of referral to it of a dispute
under this Section.
3.3.5 Payment. On acceptance of a research plan as provided in
Section 3.3.2, or other determination that LICENSEE is obligated to make
payments under this Section with respect to particular External Research
Funding, LICENSEE shall make the payment provided for by Section 3.3.1 as
follows: (a) where the monies comprising the External Research Funding are
payable to or on behalf of LICENSOR in increments, 10% of each increment will be
due and payable by LICENSEE not later than the thirtieth (30th) day (the
"Research Payment Due Date") after the scheduled due date for payment to
LICENSOR of the incremental funding amount; or, (b) where the monies are payable
in a lump sum, 10% of the total funding payable shall be paid by LICENSEE not
later than thirty (30) days after the scheduled due date for payment to LICENSOR
of the lump sum funding amount.
3.4 Currency. All payments required to be made by any party under this
Agreement shall be made in U.S. currency.
3.5 Books and Records and Audit.
3.5.1 Books and Records of LICENSEE. LICENSEE shall keep full,
complete, and accurate books of account and records covering all transactions on
which Running Royalties are payable under this Agreement. LICENSEE shall
preserve such books and records for a period of three (3) years after the
Royalty Due Date to which the material relates. Acceptance by LICENSOR of an
accounting statement or payment hereunder will not preclude LICENSOR from
challenging or questioning the accuracy thereof. During the Term and for a
period of one (1) year thereafter, LICENSOR may, upon reasonable notice in
writing to LICENSEE, cause an independent audit to be made of the books and
records of LICENSEE in order to verify the statements rendered under this
Agreement, and prompt adjustment shall be made by the proper party to compensate
for any errors disclosed by the audit. The audit shall be conducted only by an
independent accountant during regular business hours and in a reasonable manner
so as not to interfere with normal business activities. Audits shall be made
hereunder no more frequently than annually. Before any audit may be conducted,
the auditor must represent that the auditor's fee will in no manner be
determined by the results of the audit and must agree to maintain the
confidentiality of all confidential material to which the auditor is given
access. LICENSOR will bear all expenses and fees of the audit, but if the audit
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reveals an underpayment for any quarter of more than ten percent (10%), LICENSEE
shall pay all such expenses and fees.
3.5.2 Books and Records of LICENSOR. LICENSOR shall keep full,
complete, and accurate books of account and records covering the receipt and use
of External Research Funding on which payments to LICENSOR are payable under
Section 3.3 of this Agreement. LICENSOR shall preserve such books and records
for a period of three (3) years after the Research Payment Due Date to which the
material relates. Acceptance by LICENSEE of an accounting statement or payment
hereunder will not preclude LICENSEE from challenging or questioning the
accuracy thereof. During the Term and for a period of one (1) year thereafter,
LICENSEE may, upon reasonable notice in writing to LICENSOR, cause an
independent audit to be made of the books and records of LICENSOR in order to
verify the statements rendered under this Agreement, and prompt adjustment shall
be made by the proper party to compensate for any errors disclosed by the audit.
The audit shall be conducted only by an independent accountant during regular
business hours and in a reasonable manner so as not to interfere with normal
business activities. Audits shall be made hereunder no more frequently than
annually. Before any audit may be conducted, the auditor must represent that the
auditor's fee will in no manner be determined by the results of the audit and
must agree to maintain the confidentiality of all confidential material to which
the auditor is given access. LICENSEE will bear all expenses and fees of the
audit, but if the audit reveals an overpayment made for any Research Payment Due
Date of more than ten percent (10%), LICENSOR shall pay all such expenses and
fees.
3.6 Confidentiality. LICENSOR and LICENSEE acknowledge that the amount
of LICENSEE's payments actually made to LICENSOR under this Agreement are
confidential and proprietary information relating to this Agreement and the
business of LICENSOR and LICENSEE. Accordingly, the parties agree that each of
them shall keep the information confidential and shall not disclose it, or
permit it to be disclosed, to any third party (other than to agents or
representatives who need to know such information). LICENSOR shall have the
right, however, to disclose that LICENSOR and LICENSEE have entered into this
Agreement, and the royalty rate set forth in this Agreement.
3.7 Suspension of Payments. LICENSEE's obligation to make all payments
provided for under this Article 3 will be suspended on initiation of any patent
infringement action against LICENSEE.
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4. PROTECTION OF INTELLECTUAL PROPERTY.
4.1 Prosecution of Licensed Patents. As of the Effective Date of this
Agreement, LICENSEE shall assume responsibility for all costs associated with
the prosecution and maintenance of the Licensed Patents including, without
limitation, attorneys' fees and official charges (e.g., filing fees, annuities
and maintenance fees). Furthermore, LICENSEE shall have the exclusive right to
select, employ and instruct counsel with respect to the prosecution and
maintenance of the Licensed Patents, and may, in its sole discretion, file,
prosecute, amend or abandon and of the Licensed Patents.
4.2 Protection of Other Intellectual Property. At LICENSEE's sole
discretion and expense, protection for unpatented intellectual property (e.g.,
trade secrets, trademarks, copyrights, potentially patentable material) may be
sought, foregone, maintained or abandoned.
5. LITIGATION
5.1 Initiation of Infringement Actions. LICENSEE may, but is not
obligated to, bring an action against any third party for infringement of any of
the Licensed Patents, or rights in the Licensed Invention, or any part thereof.
5.2 Control of Litigation of Infringement Actions. LICENSEE has the
exclusive right to control, manage, settle and terminate litigation initiated
under Paragraph 5.1 including, without limitation, the right to select and
employ counsel; the right to bring, or refrain from bringing, an appeal of any
adverse decision rendered in such litigation; and the right to initiate
ancillary actions, such as reexamination, reissue or interference proceedings
before an intellectual property authority.
5.3 Litigation Costs. LICENSEE shall pay all costs of litigation
initiated under Paragraph 5.1, including attorneys' fees.
5.4 Recoveries and Damage Payments. All recoveries payable on any claim
made by LICENSEE under Paragraph 5.1 shall be paid to, and retained by,
LICENSEE. Subject to the provisions of Paragraph 7.3, any damages payable by
LICENSEE to a third party as a consequence of an infringement claim based on the
manufacture, sale or use of any product, process or method covered by a patent
of the Licensed Patents, or which is part of the Licensed Invention, shall be
borne by LICENSEE.
5.5 Cooperation by LICENSOR. At LICENSEE's expense, LICENSOR shall
fully cooperate to a reasonable extent in support of any litigation brought by
LICENSEE under Paragraph 5.1, or defended by LICENSEE as a consequence of an
infringement
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claim made by a third party based on the manufacture, sale or use of any
product, process or method covered by a patent of the Licensed Patents, or which
is part of the Licensed Invention, shall be borne by LICENSEE.
6. TERMINATION.
6.1 Termination By LICENSOR. In addition to all other remedies LICENSOR
may have, LICENSOR may terminate this Agreement and the licenses granted in this
Agreement in the event that:
(a) LICENSEE defaults in any payment to LICENSOR and such
default continues unremedied for a period of ninety (90) days after LICENSEE
receives written notice of default from LICENSOR;
(b) LICENSEE fails to perform any material obligation,
warranty, duty or responsibility or is in default with respect to any term or
condition undertaken by LICENSEE hereunder, and such failure or default
continues unremedied for a period of ninety (90) days after written notice
thereof to LICENSEE by LICENSOR;
(c) LICENSEE fails to achieve a first funding level of Five
Million Dollars ($5,000,000) by June 30, 2000; or,
(d) LICENSEE ceases, without intention to resume, all efforts
to commercialize the subject matter of the Licensed Patents and Licensed
Invention.
6.2 Termination by LICENSEE. LICENSEE may terminate this Agreement and
the licenses granted in this Agreement in the following circumstances:
(a) If all the Licensed Patents are determined to be invalid
or unenforceable by any court or tribunal of competent jurisdiction, and the
determination becomes final in that it is not further reviewable through appeal
or exhaustion of all permissible petitions or applications for rehearing or
review, LICENSEE may terminate this Agreement at will and shall have no further
royalty obligation.
(b) In addition to all other remedies LICENSEE may have,
LICENSEE may terminate this Agreement if LICENSOR fails to perform any material
obligation, warranty, duty, or responsibility, or is in default with respect to
any term or condition undertaken by LICENSOR under this Agreement, and such
failure or default continues unremedied for a period of ninety (90) days after
written notice of the default to LICENSOR by LICENSEE.
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(c) In the event that LICENSOR is the proximate cause of a
breach of confidentiality leading to impairment of rights in the Licensed
Patents or Licensed Invention including, without limitation, publication of
information negating patentability, LICENSEE may terminate this Agreement at
will.
6.3 Effect of Termination. Upon any termination of this Agreement, any
unpaid portion of any payments required to be made by LICENSEE to LICENSOR under
Article 3 shall become immediately due and payable to LICENSOR. After the
termination of this Agreement, LICENSEE shall have no rights under the Licensed
Patents or Licensed Invention.
6.4 No Discharge on Termination. No termination of this Agreement,
except as a consequence of its invalidation as void from its inception or
illegal by a final decision rendered by a court of competent jurisdiction, shall
relieve or discharge either LICENSOR or LICENSEE from any duty, obligation, or
liability that was accrued as of the date of the termination (including, without
limitation, the obligation to indemnify or to pay any amounts owing as of the
date of termination).
7. REPRESENTATIONS AND WARRANTIES OF LICENSOR.
7.1 Right to Grant License. LICENSOR represents and warrants that
LICENSOR has the right and authority to grant the licenses granted to LICENSEE
in this Agreement and that this Agreement and the licenses granted in this
Agreement do not and will not conflict with the terms of any agreement to which
LICENSOR is a party.
7.2 Disclaimers. Except as otherwise expressly set forth in this
Agreement, LICENSOR, its directors, officers, employees, and agents make no
representations and extend no warranties of any kind, either express or implied.
In particular, and without limitation, nothing in this Agreement shall be
construed as:
(a) a warranty or representation by LICENSOR as to the
validity or scope of the Licensed Patents;
(b) a warranty or representation by LICENSOR that anything
made, used, sold or otherwise disposed of under any license granted in this
Agreement is or will be free from infringement of patents of third parties;
(c) an obligation on the part of LICENSOR to bring or
prosecute actions against third parties for infringement of the Licensed
Patents.
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7.3 Infringement, Validity and Unenforceability. LICENSOR represents
and warrants that, to the best of its knowledge as of the Effective Date of this
Agreement, it is not aware of any basis for a third party to claim that
manufacture, use or sale of any product, process or method covered by a patent
of the Licensed Patents, or which is part of the Licensed Invention, infringes
any rights held by such third party. LICENSOR further represents and warrants
that, to the best of its knowledge as of the Effective Date of this Agreement,
it is not aware of the invalidity or unenforceability of any issued or pending
claim in a patent of the Licensed Patents.
7.4 Limitation of Liability. Except upon breach of any of the
provisions of Paragraph 7.3, in no event shall LICENSOR, or any of its
directors, officers, employees and affiliates, be liable to third parties for
incidental or consequential damages of any kind, including economic damage or
injury to property and lost profits.
8. REPRESENTATIONS AND WARRANTIES OF LICENSEE.
LICENSEE represents and warrants that LICENSEE has the right and
authority to enter into this Agreement. Except as otherwise expressly set forth
in this Agreement, LICENSEE, its directors, officers, employees, and agents make
no representations and extend no warranties of any kind, either express or
implied. In particular, and without limitation, nothing in this Agreement shall
be construed as an obligation on the part of LICENSEE to furnish any
manufacturing or technical information to LICENSOR.
9. RELATIONSHIP OF THE PARTIES.
Subject to the terms of any Shareholders Agreement and/or Employment
Agreement made between LICENSEE and any LICENSOR, nothing in this Agreement will
be construed to form a partnership, joint ventures or agency relationship
between the parties. Neither party shall hold itself out contrary to the terms
of this paragraph and neither party shall become liable by reason of any
representation, act, or omission of the other contrary to the provisions of this
paragraph. This Agreement is not for the benefit of any third party and shall
not be deemed to give any right or remedy to any such party, whether referred to
in this Agreement or not.
10. ASSIGNMENT.
10.1 Assignment and Sublicenses Permitted. This Agreement, the rights
granted to LICENSEE, together with the duties and obligations of LICENSEE, are
transferable by assignment and may be sublicensed. In the context of this
provision, "assignment" shall include the transfer of substantially all of the
assets of LICENSEE, or of a majority
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interest in the voting stock of LICENSEE, or the merger, consolidation or
reorganization of LICENSEE with one or more third parties.
10.2 Rights, Duties and Obligations Not Severable.
10.2.1 Successors. This Agreement will inure to the benefit of
and be binding upon LICENSOR, its successors, and assigns; and upon LICENSEE and
its permitted successors and assigns. In particular, as a condition prerequisite
to the succession or assignment, the potential successors and assigns shall
agree to be bound by the covenants of this Agreement made in favor of the other
party to this Agreement.
10.2.2 Sublicensees. As a condition prerequisite to the
sublicensing of substantially all of the Licensed Rights to a third party, that
potential sublicensee shall agree to be bound by the covenants of this Agreement
made in favor of the LICENSOR. In particular, sublicenses granted under this
provision shall require that the sublicensee assume the payment obligations of
LICENSEE under Section 3 of this Agreement in the event that such payments are
not made as due by LICENSEE. Sublicenses of a portion of the Licensed Rights
without a sublicense of the right to manufacture for sale and/or to sell under
the Licensed Patents and/or Licensed Invention, such as a sublicense for the
purpose of conducting clinical research, shall not be subject to the
requirements of this Paragraph 10.2.2.
11. DISPUTE RESOLUTION.
11.1 Arbitration of Royalty Disputes.
(a) Subject to the provisions of Section 3.3.4, any dispute
between LICENSOR and LICENSEE concerning the amount of monies payable to
LICENSOR under this Agreement shall be submitted for binding arbitration in
accordance with the provisions of this Section 11 and the then-applicable rules
of the American Arbitration Association (the "Association"). Judgment upon the
arbitration award may be entered in any court of competent jurisdiction.
(b) The power of the arbitrators shall be limited to resolving
the specific issues stated by determining the royalties LICENSEE owes or should
receive credit for, if any, under this Agreement. The power of the arbitrators
shall not extend to any other matters. All other disputes shall be subject to
litigation in a court of competent jurisdiction.
(c) The arbitration panel or tribunal shall consist solely of
neutral arbitrators.
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(d) The parties agree that arbitration proceedings under this
Agreement shall not be stayed on the ground of pending litigation to which
either or both of them is a party.
11.2 Remedies. Except as expressly provided herein, all specific
remedies provided for in this Agreement are cumulative and are not exclusive of
one another or of any other remedies available in law or equity.
12. MISCELLANEOUS.
12.1 Computation of Time. The time in which any act provided in this
Agreement is to be done shall be computed by excluding the first day and
including the last day, unless the last day is a Saturday, Sunday, or legal
holiday, and then it shall also be excluded.
12.2 Notices. All notices given in connection with this Agreement shall
be in writing and shall be deemed given upon actual receipt by the addressee.
Notices shall be personally delivered or sent by telex or facsimile (with prompt
confirmation by registered or certified air mail, postage prepaid) or by
registered or certified air mail, postage prepaid, addressed to the party to be
notified at the following address, or at such other address as the party may
designate by notice:
LICENSOR:
Aruba International, PTY Ltd.
Rocklea Junction
00/0000 Xxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxx, XXXXXXXXX
LICENSEE:
Lipid Sciences, Inc.
c/o MDB Capital Group, LLC.
000 Xxxxxxxx Xxxxxxxxx, 00xx Xxxxx
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
(000) 000-0000
(000) 000-0000
with a copy to: Xxxxxx X. Xxxxx, Esq.
XXXXX & LARDNER
000 X. Xxxxxxxx, 00xx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
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(000) 000-0000 telephone
(000) 000-0000 facsimile
12.3 Survival. The provisions of this Agreement relating to payment
obligations, confidentiality, indemnification, remedies, and arbitration shall
survive the expiration or termination of this Agreement, except as provided in
Paragraph 6.3.
12.4 Severability. If any provision of this Agreement is declared by a
court of competent jurisdiction to be invalid, illegal, unenforceable, or void
then both parties shall be relieved of all obligations arising under such
provision, but only to the extent that such provision is invalid, illegal,
unenforceable, or void. If the remainder of this Agreement is capable of
substantial performance, then each provision not so affected shall be enforced
to the extent permitted by law.
12.5 Waiver and Modification. No modification of any of the terms of
this Agreement will be valid unless in writing and signed by both parties. No
waiver by either party of a breach of this Agreement will be deemed a waiver by
such party of any subsequent breach.
12.6 Headings. The headings in this Agreement are for reference only
and shall not in any way control the meaning or interpretation of this
Agreement.
12.7 Interpretation. No provision of this Agreement is to be
interpreted for or against any party because that party or its attorney drafted
the provision.
12.8 Governing Law and Jurisdiction. This Agreement shall be construed,
governed, interpreted, and applied in accordance with the laws of the State of
California, except that questions affecting the construction and effect of the
Licensed Patents shall be determined by the law of the United States. LICENSOR
hereby consents to the exercise of personal jurisdiction over them by the courts
of the United States of America including, without limitation, courts of the
State of California.
12.9 Other Agreements. The parties each represent that in entering into
this Agreement, they rely on no promise, inducement, or other agreement not
expressly contained in this Agreement; that they have read this Agreement and
discussed it thoroughly with their respective legal counsel; that they
understand all of the provisions of this Agreement and intend to be bound by
them; and that they enter into this Agreement voluntarily. The parties recognize
that they are also bound by the terms of other agreements governing their
relationship as proprietors and shareholders of
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LICENSEE, and agree that the terms of such agreements shall control over terms
of this Agreement, if inconsistent.
12.10 Entire Agreement. This Agreement constitutes the complete and
exclusive statement of the terms and conditions between the parties, which
supersedes and merges all prior proposals, understandings and all other
agreements, oral and written, between the parties relating to the subject of
this Agreement including, without limitation, all Letters of Intent previously
entertained by the parties.
12.11 Counterparts. This Agreement may be executed in counterparts,
which taken together shall constitute one document.
The parties have executed this Agreement by their duly authorized
representatives:
LICENSEE:
LIPID SCIENCES, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
Title: Xxxxxxxxxxx X. Xxxxxxx
President
Dated: December 29, 1999
LICENSOR:
ARUBA INTERNATIONAL PTY., LTD.
By: /s/ Xxxx Xxxx
Title: Xx. Xxxx Xxxx
Director
Dated: December 30, 1999
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