(Certain information has been omitted from this exhibit and filed separately
with the SEC pursuant to a request for confidential treatment under Rule 24b-2)
LICENSE AGREEMENT
THIS AGREEMENT is made and effective as of May 9, 1997 by and between
CNS, Inc., a Delaware corporation ("Licensee"), Cigone Enterprises, Inc., a
Texas corporation ("Licensor"), and SmokeBusters of Texas, Inc. and Odor Pros,
Inc., each a Texas corporation (the "Affiliates").
RECITALS
WHEREAS, Licensor is now and has been engaged in developing certain
Products (as defined in Subsection 1.1) for use in removing the odor of smoke
from, among other things, hair and clothing;
WHEREAS, the Products embody inventions and designs owned exclusively
by Licensor and Licensor has available certain Know-how relating to the
manufacture of the Products;
WHEREAS, Licensor owns or controls, or may hereafter own or control,
certain Know-how, patents or patent applications relating to the Products;
WHEREAS, Licensor desires to license to Licensee and Licensee desires
to license from Licensor certain Know-how and patent applications of Licensor
relating to the manufacture and use of the Products for removing the odor of
smoke.
NOW, THEREFORE, in consideration of the premises, the mutual covenants
and agreements hereinafter set forth and other good consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. GENERAL DEFINITIONS. As used herein, the following terms shall be
defined in the manner set forth below:
1.1 Products. The term "Products" shall mean products containing
[confidential treatment requested] and water mixtures for removing the odor of
smoke and components or ingredients therefor and related thereto, all
improvements thereto, and any other products similar in function and purpose
developed by Licensor or any of its employees, consultants, agents or
representatives during the term of this Agreement using any Licensed Patents or
Know-how; provided, however, that for any such improvement or enhancement or
similar product developed by Licensor to be included within the license herein
granted, Licensee shall at its option make an election for such inclusion by
providing prior written notice of such election to Licensor within 30 days after
Licensee learns of such improvement, enhancement or similar product.
1.2 Know-how. The term "Know-how" shall mean any and all tangible and
intangible information, technology, documents and materials in the possession
and control of Licensor, necessary in order to enable Licensee to utilize fully
the rights granted by Licensor to Licensee hereunder and shall include, without
limiting the foregoing, the ideas, concepts, confidential information, trade
secrets and techniques, as well as all the materials, documents, manuals,
schematics, blueprints, specifications, patterns, art work, bills of materials
and technical specifications and other information of Licensor relating to the
Products.
1.3 Licensed Patents. The term "Licensed Patents" shall mean the
following: (i) all future United States patent applications related to the
Products and any patents arising therefrom; (ii) the rights, patents and patent
applications, if any, in any country or jurisdiction in the world corresponding
to the United States patent applications; and (iii) any division, continuation,
continuation-in-part, divisional, re-examined, reissued or extended letters
patent, applications and xxxxx patents, utility models, utility model
conversions, inventor's certificates relating to the inventions claimed in any
of the foregoing United States patents and patents pending and foreign patent
rights, which may be developed, acquired or controlled by Licensor during the
term of this Agreement and with respect to which Licensor shall have the right
to grant the license hereinafter provided.
1.4. Contract Year and Quarter. The term "Contract Year" shall mean
each period of twelve consecutive months commencing on January 1 of the year
designated in Subsection 4.3. The term "Contract Quarter" shall mean each period
of three consecutive months commencing January 1, March 1, July 1 and October 1.
1.5. Gross Revenues. The term "Gross Revenues" shall mean the gross
amounts collected by Licensee from any end-user, sublicensee, assignee or other
person or entity relating to or arising from the sale of Products after the
deduction of (i) any amounts repaid or credited by reason of rejections or
returns, and (ii) trade and quantity discounts actually allowed and taken.
1.6. Earned Royalty. The term "Earned Royalty" shall mean the royalty
payable to Licensor on Products.
2. GRANT OF LICENSES.
2.1 Patent and Know-how License. Except as otherwise set forth in
Section 2.5 below, Licensor hereby grants to Licensee an exclusive, worldwide,
transferable right and license to manufacture and have manufactured the Products
and an exclusive, worldwide, transferable license to use, sell and otherwise
practice the Products and all Know-how of Licensor and any invention disclosed
or claimed in any of the Licensed Patents for distribution as a product to
consumers, retailers, wholesalers or otherwise. Licensor and Affiliates agree
that they will (i) not manufacture or use Products except as set forth in
Section 2.5 below, (ii) not sell Products directly or indirectly to any third
party other than as set forth in Section 2.5 below, (iii) not enter into any
license or distribution arrangement with any person or entity other than
Licensee to manufacture or sell Products and (iv) enter into and take such steps
as are necessary to enforce agreements with purchasers of the Product which
prohibit such purchasers from selling or distributing Products.
2.2 Sublicenses and Assignments. Licensee may sublicense and/or assign
to any third party, including affiliates of Licensee, any and all rights granted
hereunder. In the event of an assignment, Licensee shall enter into a written
agreement with the assignee pursuant to which the assignee shall assume all of
the obligations of Licensee under this Agreement and this Agreement
shall be binding upon and inure to the benefit of such assignee. In the event of
a sub-license, Licensee shall enter into a written agreement with sub-licensee
(i) with a term no greater than the term of this Agreement, (ii) with rights
granted to sub-licensee which are no greater than the terms of this Agreement,
and (iii) pursuant to which Licensee shall use reasonable business efforts to
impose upon sub-licensees similar obligations as Licensor has imposed upon
Licensee under this Agreement.
2.3 Patent Procurement and Costs. Licensee shall be responsible for and
pay all patent costs and expenses (including reasonable attorneys' fees) to be
incurred in obtaining, prosecuting, owning and maintaining any of the Licensed
Patents issued or to be issued under the law of any jurisdiction, including
filing, prosecution, working and maintenance costs and taxes. Notwithstanding
the above, Licensor shall direct and control the procurement of the Licensed
Patents and shall select patent counsel for such procurement (which counsel is
subject to the reasonable consent of Licensee), provided, however, that Licensee
shall have the right to terminate such patent counsel if Licensee has a
reasonable basis for not being satisfied with such counsel's efforts or results,
and in such event Licensor shall select a new patent counsel (which counsel is
subject to the reasonable consent of Licensee).
2.4 Exploitation. Except as set forth in Section 8, Licensee shall not
be under any obligation to use, exploit, develop or market any license under
this Agreement. Licensee shall be entitled to use its sole business judgment in
deciding the manner and extent, if any, of any exploitation of any licenses
granted hereunder and in deciding whether to use any other products, devices,
techniques or technology competing therewith in any field of use.
2.5 Reservation; Manufacture and Sale by Licensor. All rights not
explicitly granted to Licensee in this Agreement are expressly reserved to
Licensor. Notwithstanding any other provision in this Agreement, Licensor
specifically retains all rights in and to the Products, Licensed Patents, and
Know-how as such rights relate to Licensor's (i) manufacture and use (but not
sale) of the Products in its business and (ii) manufacture of Products for, and
the sale of the Products to, commercial end-users that agree not to sell the
Products, and Licensee acknowledges and agrees that Licensor may license the
Products to Affiliates for such limited purposes. Licensor and Affiliates shall
notify Licensee within five business days of any purchase orders of a third
party that exceed 40 gallons of concentrated Products in the aggregate in a
calendar month and, in such event, Licensee shall have the right to assume the
responsibility of manufacturing and distributing Products to such third party
purchaser on behalf of Licensee or Affiliates, provided that Licensee shall have
the right to terminate such sales upon a reasonable belief that such third party
purchaser is reselling the Products. The price for such Products to Licensor or
Affiliates for such third party purchasers shall be Licensee's actual and direct
cost to manufacture and ship such Products.
3. REPRESENTATIONS AND WARRANTIES.
3.1 Licensor and Affiliates each hereby warrant and represent to
Licensee as follows:
(a) Each of Licensor and Affiliates is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Texas.
(b) This Agreement has been duly authorized, executed and
delivered by each of Licensor and Affiliates and constitutes a valid and binding
obligation of Licensor and Affiliates, enforceable in accordance with its terms,
except as rights to indemnification thereunder may be limited by applicable law
and except as the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights generally or by general equitable principles. The execution,
delivery and performance of this Agreement by Licensor and Affiliates and the
consummation of the transactions contemplated hereby do not and will not
conflict with or result in any material breach of any of the provisions of, or
constitute a material default under, or result in a material violation of, or
require any authorization, consent or approval, under the provisions of such
party's Articles of Incorporation or Bylaws or any other agreement or instrument
to which such party is bound or affected, or any law, statute, rule, regulation,
judgment order or decree to which such party is subject.
(c) Licensor owns all the rights of Xxxxxxx Xxxxxx and all
other employees, agents, consultants or representatives of Licensor with respect
to the Products, Licensed Patents and Know-how.
(d) To Licensor's knowledge, there is no reason that
enforceable patents will not issue in the United States or in any other
jurisdiction where corresponding rights are sought.
(e) To Licensor's knowledge, the Products, Licensed Patents
and Know-how do not infringe on any patent, copyright or other intellectual
property right of any third party.
(f) Licensor has not received notice of any claims, actions,
suits or proceedings pending or threatened effecting Licensor, the Licensed
Patents or Know-how, which, if adversely determined, would have a material
adverse effect upon Licensee's ability to manufacture, have manufactured, use or
sell the Products or otherwise practice the rights and technology licensed to
Licensee by Licensor under this Agreement and, to Licensor's knowledge, there is
no reasonable basis for anyone to bring such claims, actions, suits or
proceedings.
(g) Licensor has not received any claim from any third-party
proceedings relating to the Licensed Patents, Know-how, or the Products which
are based upon infringement of any patent or misappropriation or misuse of trade
secrets.
3.2 Licensee hereby warrants and represents to Licensor as follows:
(a) Licensee is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware.
(b) This Agreement has been duly authorized, executed and
delivered by Licensee and constitutes a valid and binding obligation of
Licensee, enforceable in accordance with its terms, except as rights to
indemnification thereunder may be limited by applicable law and except as the
enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting creditors' rights
generally or by general equitable principles. The execution, delivery and
performance of this Agreement by Licensee and the consummation of the
transactions contemplated hereby do not and will not conflict with or result in
any material breach of any of the provisions of, or constitute a material
default under, or result in a material violation of, or require any
authorization, consent or approval, under the provisions of Licensee's
Certificate of Incorporation or Bylaws.
4. CONSIDERATION AND REPORTS.
4.1 Royalties. Licensee agrees to pay to Licensor royalties as follows
based on the Gross Revenues from the sale of Products: (a) [Confidential
treatment requested] of Gross Revenues until royalties have been paid on an
aggregate total of [Confidential treatment requested] of Gross Revenues, then
(b) [Confidential treatment requested] of Gross Revenues until royalties have
been paid on an aggregate total of [Confidential treatment requested] of Gross
Revenues, and then (c) [Confidential treatment requested]% of all Gross Revenues
in excess of an aggregate total of [Confidential treatment requested]. The
royalty provided for in this Section 4.1 shall be reduced to [Confidential
treatment requested] of Gross Revenues, if and when (i) a third party through
patent proceedings negates the functional exclusionary utility of the Licensed
Patents issued in the United States taken as a whole or (ii) a third party is
marketing a competing product using the same key ingredient contained in the
Licensed Products and no patents are pending in the United States Patent and
Trademark Office with regard to the Products. In the event the royalty is
reduced pursuant to item (i) above and, as the result of a successful appeal or
otherwise, the functional exclusionary utility of the Licensed Patents is later
reinstated, then the royalty rate shall also be reinstated to its original
levels and Licensee shall pay Licensor an amount equal to the royalties which
Licensee would have been required to pay under the original royalty rates during
the period that the royalty was reduced, less the amount of royalties actually
paid during such period using the reduced royalty rate.
4.2 Quarterly Payments. All royalties due Licensor from Licensee
hereunder shall be payable on a Contract Quarterly basis. Within forty-five (45)
days after the end of each Contract Quarter during the term of this Agreement,
Licensee shall pay to Licensor the royalty due Licensor under Subsection 4.1
through the end of the preceding Contract Quarter and shall furnish Licensor
with a written statement setting forth the number of Products sold and the Gross
Revenues received during such Contract Quarter, and the resulting amount of the
royalty due Licensor under Subsection 4.1.
4.3 Minimum Royalties. To maintain its rights hereunder,
Licensee shall pay to Licensor minimum royalties as follows:
Minimum Royalty Payment Minimum Royalty Payment
Contract Year Per Contract Year Per Contract Quarter
------------- ----------------- --------------------
1998 [Confidential treatment requested]
1999 [Confidential treatment requested]
2000 [Confidential treatment requested]
2001 [Confidential treatment requested]
4.4 Minimum Royalty Payment. Licensee shall pay Licensor within
forty-five (45) days after the end of each Contract Quarter, an amount equal to
(i) the minimum royalties payable pursuant to the terms of Subsection 4.3 for
the Contract Quarter then ended, less (ii): (a) the aggregate amount of Earned
Royalties actually paid to Licensor pursuant to the terms of Subsections
4.1 and 4.2 for the Contract Quarter then ended; (b) any patent costs, as
described in Subsection 2.4, paid by Licensee, including any patent cost carry
forwards, provided this deduction shall not reduce the payment to Licensor lower
than the minimum guaranteed payment in Section 4.3, but will be carried forward
and deducted in later periods; and (c) any Earned Royalties paid to Licensor
during the prior Contract Quarters in the current Contract Year that exceed the
amount of cumulative minimum royalties payable for those Contract Quarters.
Licensee's failure to pay any and all amounts payable under the preceding
sentence within thirty (30) days after receipt of written notice from Licensor
that such amounts have not been timely paid shall render the licenses granted
hereunder void and thereupon, Licensee shall have no further rights or interests
of any kind or nature with respect to the Products, Know-how, License or Patents
and Licensee shall take any and all action that Licensor may request to further
document the provisions hereof. In the event that any law, statute, regulation,
rule, guideline, ruling or decision prevents Licensee from marketing or offering
Products for sale, the minimum royalty payment will be suspended until such time
that Licensee is no longer prevented from marketing or offering Products for
sale.
4.5 Late Payment. Licensee shall have five (5) days to make any late
payments hereunder, without interest. Thereafter, Licensee shall pay a late
payment fee to Licensor calculated at a variable rate of 2% over the prime per
annum interest rate as set from time to time by Norwest Bank Minneapolis, N.A. ,
Minneapolis, Minnesota (the "Interest Rate"), on any and all amounts that are at
any time overdue and payable to Licensor under this Agreement, such interest
being calculated on each such overdue amount from the date when such amount
became due to the date of actual payment thereof. Such late payment fee shall be
in addition to and not in lieu of any and all other rights or remedies that
Licensor may have under this Agreement or law relating to a default by Licensee
under this Agreement.
4.6 Records. During the term of this Agreement and for three (3) years
after termination of this Agreement, Licensee shall at all times maintain
accurate and up-to-date records containing complete data from which amounts due
to Licensor under this Agreement may be readily calculated. Further, Licensee
shall preserve and permit examination of such records by Licensor's
representatives at reasonable intervals and under reasonable conditions during
the term of this Agreement and for three (3) years thereafter and, upon request,
shall supply to Licensor's representatives all information useful in making a
proper audit and verification of Licensee's performance of its obligations under
this Agreement.
4.7 Underpayment. If Licensor determines by audit and inspection of
Licensee's books and records that Licensee has failed to pay all royalties due
under Subsection 4.1, Licensee shall pay Licensor 105% of such additional
royalties as may be due. If the amount of underpayment exceeds 5% of the
royalties due under Subsection 4.1, then Licensor shall, in addition to any
other remedies available to it, recover from Licensee the reasonable costs
incurred in making any such audit and inspection pursuant to Section 4.6 hereof
which revealed such shortfall.
4.8 Buy-Out of License Rights. At any time on or after January 1, 2002,
Licensee may purchase any and all rights to the Products, Know-how and Licensed
Patents, as such rights are set forth in Section 2.1 above, by giving Licensor
written notification of its election to exercise this buy-out option and by
making the following payments (collectively referred to herein as the "Buy-Out
Payments") to Licensor: (i) an amount equal to three (3) times the total Earned
Royalty paid or payable with respect to the most recent four (4) consecutive
Contract Quarters (the "Evaluation Period"), and (ii) quarterly payments in the
amount of [confidential treatment requested] per Contract Quarter ending on the
earlier of the twelfth Contract Quarter after the buy-out option is exercised or
the Contract Quarter ending on December 31, 2006; provided that Licensee shall
not be entitled to make such election and consummate such purchase unless a
competing product is being offered and Gross Revenues during the Evaluation
Period do not exceed Gross Revenues from the four (4) consecutive Contract
Quarters preceding the Evaluation Period.
5. INDEMNIFICATION.
5.1 Indemnification by Licensor. Licensor shall indemnify and hold
Licensee harmless from and against any and all claims, damages, costs (including
reasonable attorneys' fees), judgments and liabilities of any kind or nature
arising out of the breach by Licensor of any of its warranties, representations
and covenants under this Agreement or by any misuse by Licensor of the patent
process or fraud by Licensor on the patent office or notice by Licensor before
the date hereof of a claim by any party of a prior or superseding right to
practice the art of and commercialize the Products.
5.2 Indemnification by Licensee. Licensee shall indemnify and hold
Licensor harmless from and against any and all claims, damages, costs (including
reasonable attorneys' fees), judgments and liabilities of any kind or nature:
(a) arising out of the breach by Licensee of any of its covenants under this
Agreement; or (b) arising out of any actual or alleged defect in a Product.
6. PROTECTION AGAINST INFRINGEMENT. In the event that Licensee becomes
aware of activity on the part of any third party which may constitute
infringement of the Licensed Patents, or any other intellectual property rights
with respect to which Licensee is granted a license hereunder, Licensee shall
give Licensor written notice thereof. Upon reasonable request by Licensor,
Licensee shall, at its sole expense, initiate and thereafter diligently maintain
reasonable efforts to prevent and xxxxx such infringement, including the
initiation of an appropriate civil action for infringement and the taking of
such other action as may be necessary or appropriate, to enforce the Licensed
Patents or other intellectual property rights with respect to which Licensee is
granted a license hereunder. In such event, (i) Licensor will permit the use of
its name in, and as a party to, all such suits and execute all pleadings,
documents and other papers necessary or appropriate in conjunction therewith and
(ii) Licensee shall receive the full benefits of any action it takes pursuant to
this subsection, including retaining all sums recovered in any such suit or in
settlement thereof after paying Licensor the Earned Royalties which shall be
calculated from the amount of Gross Revenues, if any, asserted by Licensee to
support any award of compensatory damages (as opposed to punitive or any other
damages). Licensor may, at its option and its cost and expense, participate in
meetings with Licensee and/or its counsel and receive all pleadings, documents
and other related papers useful for the purpose of keeping Licensor informed of
the status of any proceedings commenced by Licensee pursuant to this Section 6.
7. TERM AND TERMINATION.
7.1 Term. This Agreement shall commence on the effective date hereof
and shall expire, unless earlier terminated pursuant to Sections 4.8, 7.2 or 7.3
of this Agreement, upon the expiration of the last of the Licensed Patents to
expire or, at the sole discretion of Licensee, ten (10) years from the date
hereof if no patent has issued. If a pending patent issues after ten (10) years
from the date hereof and after the expiration of the Agreement, the Agreement
shall be reinstated in full and shall expire, unless terminated pursuant to the
terms of this Agreement, upon the expiration of the last of the Licensed
Patents.
7.2 Termination by Licensor. If Licensee defaults in any of its
obligations under this Agreement, Licensor shall have the right to terminate
this Agreement by giving thirty (30) days' written notice of termination
specifying the reason for termination, provided that such notice will be of no
effect and termination will not occur if the specified default is cured prior to
the expiration of said thirty (30) day notice period.
7.3 Termination by Licensee. (a) This Agreement may be terminated by
Licensee at any time at will, with or without cause, by the giving of at least
thirty (30) days' written notice to Licensor by Licensee in which event such
license shall terminate upon the effective date stated in any such notice. In
the event of the termination of any such license, neither Licensor nor Licensee
shall have any further obligation to the other party hereunder except as
expressly provided in Subsection 7.4 below.
(b) Upon the termination of any license granted under this
Agreement, Licensee may, after the effective date of such termination, sell any
of its (i) completed Products, (ii) Products then in the process of manufacture
and (iii) Products with respect to which manufacture has been committed at the
time of termination by reason of either (x) any contracts for the purchase of
materials to be used in the manufacture of such Products or (y) any contract for
the sale of such Products. All such sales and uses shall be subject to the
royalty provisions of Section 4 of this Agreement as though the termination of
this Agreement had not occurred.
(c) Except as expressly provided in Subsection 7.3(b), after
termination of this Agreement, Licensee may not use develop, market or sell the
Products, Know-how, or Licensed Patents in any way or manner that would violate
any rights of Licensor and Licensee shall take any and all steps reasonably
requested by Licensor to fully document the complete vesting of all rights
licensed hereunder to Licensee by Licensor upon any such termination.
7.4 Continued Obligations. Termination shall not relieve or release
either party from its obligations to make any payment which may be owing to the
other under the terms of this Agreement or from any other liability which either
party may have to the other arising out of the terms of this Agreement.
Additionally, notwithstanding anything contained herein to the contrary,
Sections 3, 4 (including Subsection 4.8 to the extent then exercised) and 5
shall survive termination of this Agreement and remain in full force and effect;
provided, that Licensor and Licensee hereby acknowledge that they may not bring
claims against one another based upon the representations and
warranties contained in Section 3, except to the extent such representations and
warranties are not accurate as of the date hereof.
8. LICENSEE'S UNDERTAKINGS.
8.1 Licensing Fee and Payment. On the date hereof, Licensee will pay to
Licensor the sum of $20,000 as a license fee.
8.2 Manufacturing. Licensee will develop systems, or have systems
developed for, and will begin the manufacture of salable Products by October 1,
1997, provided no law, statute, regulation, rule, ruling, guideline, order or
decision prevent Licensee from marking or offering Products for sale.
8.3 Marketing. No later than January 1, 1998, Licensee will prepare
promotional materials and sample packages of Products for promotional
distribution. Licensee will also attend relevant trade shows and train its
direct sales force and independent sales representative groups under contract to
begin selling the Products.
8.4 Marking. Licensee shall apply the patent notices to the Products
and Product advertising and packaging that are reasonably required by Licensor.
8.5 Confidentiality. Licensee shall maintain the confidentiality of
Licensor's confidential information, both during and after the term of this
Agreement. After this Agreement is terminated, Licensee shall not use any of
Licensor's confidential information for any purpose that is not specifically
provided for in Section 7.3(b) of this Agreement.
9. MISCELLANEOUS.
9.1 Force majeure. Neither party shall be responsible for any delay or
failure in the performance of any obligation hereunder due to strikes, lockouts,
fires, floods, acts of God, embargoes, wars, riots, or act or order of any
government or governmental agency; provided, however, nothing set forth in this
Subsection 9.1 shall be construed to relieve Licensee of the requirement that it
pay minimum royalties pursuant to Subsections 4.3 and 4.4 hereof.
9.2 Waiver. The waiver or failure of either party to enforce the terms
of this Agreement in one instance shall not constitute a waiver of said party's
right under this Agreement with respect to other violations.
9.3 Remedies. The election by either party of any particular right or
remedy shall not be deemed to exclude any other right or remedy and all rights
and remedies of either party shall be cumulative. The parties agree that, in
addition to any other relief afforded under the terms of this Agreement or by
law, each party shall have the right to enforce this Agreement by injunctive or
mandatory relief to be issued against the other party, it being understood that
both damages and specific performance shall be proper modes of relief and are
not to be considered as alternative remedies.
9.4 Notices. All notices and replies thereto required hereunder shall
be in writing, signed by the party giving notice, placed in an envelope and
either delivered by hand or sent by facsimile or registered mail, postage
prepaid, return receipt requested, and properly addressed to the other party.
Notices sent by mail shall be deemed received on the date of receipt indicated
by the receipt verification provided by the United States Postal Service.
Notices sent by facsimile shall be deemed received on the date indicated on the
sender's confirmation report. Notice shall be given, mailed or sent to the other
party at the following addresses or at such other address as may be given by
proper notice:
If to Licensor
or Affiliates: Cigone Enterprises, Inc.
[confidential treatment requested]
Attn: Xxxxxxx Xxxxxx
With a copy to: Kuperman, Orr, Xxxxx & Xxxxxx
000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
Attn: Xxxxx Xxxxx
Fax No.: 000-000-0000
If to Licensee: CNS, Inc.
0000 Xxxx 00xx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx, M.D.
Fax No.: 000-000-0000
With a copy to: Xxxxxxxxx & Xxxxxx P.L.L.P.
0000 XXX Xxxxxx
00 Xxxxx 0xx Xxxxxx
Xxxxxxxxxxx, XX 00000-0000
Attn: Xxxxxxx Xxxxxxx
Fax No.: 000-000-0000
Either party hereto may designate any other address for notices given
hereunder by written notice to the other party given at least ten (10) days
prior to the effective date of such change.
9.5 Entire Agreement. Agreement represents the entire agreement between
the parties with respect to the subject matter hereof; there are no oral
promises, representations or warranties. No modification of this Agreement or
waiver of any of its terms shall be binding upon the parties unless said
modification or waiver is in writing, signed by both parties, and states that it
is an amendment to this Agreement.
9.6 Parties in Interest. This Agreement shall inure to the benefit of,
be binding upon, and be enforceable against the parties hereto, their respective
successors and assigns.
9.7 Governing Law. This Agreement shall be governed by, construed and
enforced under the internal laws (and not the laws of conflicts) of the State of
Minnesota.
9.8 Severability. If any portion of this Agreement is held invalid by
the final judgment of any court of competent jurisdiction, such portion shall be
deemed revised or "blue lined" so that it is enforceable to the fullest extent
possible under applicable law and the remaining provisions shall remain in full
force and effect as if such invalid provision had not been included herein.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
CNS, INC.
By: Xxxxxx X. Xxxxx, M.D.
Its: President
CIGONE ENTERPRISES
By: Xxxxxxx Xxxxxx
Its: President
SMOKEBUSTERS OF TEXAS, INC.
By: Xxxxxxx Xxxxxx
Its: President
ODOR PROS, INC.
By: Xxxxxxx Xxxxxx
Its: President
