EXHIBIT 10.2
SUBLICENSE AGREEMENT
THIS SUBLICENSE AGREEMENT (the "Agreement") is entered into to be
effective as of August 30, 1995, by and between BioFactors, Inc., a Delaware
Corporation, ("BFI") and Xxxxxx-International Associates, Inc. or its assignees
("Xxxxxx").
WHEREAS, BFI holds an exclusive, transferable license of proprietary
computer software and associated protocols and methodology for objectively
testing operator psychomotor skills developed by Systems Technology, Inc., a
California Corporation ("STI") collectively referred to as the "Critical
Tracking Task" ("CTT") technology" or the STI proprietary technology; and
WHEREAS, pursuant to its exclusive license, BE has developed hardware,
software and delivery systems to utilize STI's proprietary technology and is
currently marketing (1) a non-invasive fitness-for-work testing service ("FACTOR
1000 Service") and (2) has developed a prototype on-field athletic performance
system based on the FACTOR 1000 Service ("SportsTrac System" or "SportsTrac"),
defining the correlation between hand-eye coordination as measured by FACTOR
1000 and on-the-field athletic performance; and
WHEREAS, simultaneous herewith the parties herewith are entering into a
novation agreement with STI in connection with this agreement (the "STI Novation
Agreement"); and
WHEREAS, Xxxxxx wishes to obtain the exclusive license to market
SportsTrac to sports markets on a world-wide basis and BFI is willing to grant
to Xxxxxx such a license;
NOW, THEREFORE, the parties agree as follows:
ARTICLE I
SUBLICENSES AND MARKETING
1.1 Sublicense. BFI hereby grants to Xxxxxx an exclusive and world-wide
sublicense (the "Sublicense") to reproduce, manufacture, use and market directly
and through sub-distributors and/or sublicensees, to commercial end-user
customers, the SportsTrac System solely for sports-related and sports
entertainment applications. Sports-related and sports entertainment applications
shall include athletic performance enhancement, measuring sports diagnostics,
sports rehabilitation and sports related clinical applications and applications
directly related to the foregoing. In no event shall sports-related applications
include fitness-for-work testing. Xxxxxx shall not sublicense to customers the
SportsTrac System, except as permitted by Section 1.2 herein. BFI grants to
Xxxxxx the right to assign or issue sublicenses, except each sublicense shall
include and be limited to all the terms of this agreement. BFI shall not itself
or through agents or third parties license, sublicense, market, or distribute
SportsTrac during the term of this Agreement.
1.2 Customer Sublicenses. Pursuant to the sublicense granted to Xxxxxx in
Section 1.1, Xxxxxx shall have the rights to grant to its customers (object code
only) or co-venturers and partners non-exclusive and non-transferable
sublicenses to utilize the SportsTrac System.
1.3 Trademark License. BFI has not registered a service xxxx in connection
with the name, marketing, selling or sublicensing of the SportsTrac System.
Xxxxxx undertakes to use its best efforts to register service xxxx or trademark
for SportsTrac (under that or any other name selected by Xxxxxx) and such xxxx
for SportsTrac shall be owned, and inure to the benefit of Xxxxxx. Xxxxxx shall
have no liability in the event it is unable to obtain such service xxxx or
trademark. This license will not Create any right, title or interest in the
FACTOR 1000 or BioFactors' Service Marks in Xxxxxx. Xxxxxx shall acknowledge
BFI's ownership of the FACTOR 1000 Service Xxxx in its advertising and other
literature describing SportsTrac in which there is any reference to BFI or the
FACTOR 1000 service. Xxxxxx hereby agrees to promptly provide BFI with copies of
Xxxxxx'x service xxxx use guidelines and all revisions thereto used to govern,
the use by all licensees of sublicensees of the SportsTrac service xxxx in the
Territory. Xxxxxx further agrees to comply with any requirements as to patent
and trademark notices contained in STI's license to BFI.
1.4 Developments and Associated Products. This license .kill not create
any right, title or interest to BFI in any developments or associated product's
Xxxxxx may produce or develop that do not use the FACTOR 1000 or SportsTrac
systems as defined herein ("Associated Products"). Any use of the name
"SportsTrac" or SportsTrac System" or any other name on an Associated Product
does not of itself create any right title or interest in the Associated Product
to BFI.
ARTICLE II
ROYALTIES AND PAYMENTS
2.1 Initial Royalty License Fee. Xxxxxx shall pay a fee to BFI as follows:
(a) A non-refundable royalty of S1,000,000 payable as follows.
(1) S300,000 upon the execution of this Agreement, of which
$50,000 has already been received as an xxxxxxx deposit;
(2) A promissory Note in the amount of $700,000 payable to
BFI. The terms of the note shall provide that $350,000 is due and payable on
March 31, 1996 and S350,000 due and payable on July 31, 1996.
(3) In the event that Xxxxxx undertakes an initial public
offering of its shares prior to the due dates for payment on amounts due under
the promissory note, any proceeds received as a result of such offering shall be
utilized to retire the promissory note.
2.2 Continuing Royalty. A royalty equal to eight and one-half
percent (8 1/2%) of the cash receipts from the sale or license by Xxxxxx of
products or services containing the
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FACTOR 1000 technology, but not including any revenues derived by Xxxxxx from
installation, maintenance, consulting hardware sales, or any other revenues not
directly or indirectly related to the FACTOR 1000 or CTT technology. BFI shall
have the right to audit Xxxxxx'x records, with adequate notice, for the purpose
of verifying royalty payments.
Said royalty shall be due and payable within thirty (30) days after the
conclusion of each calendar quarter commencing with the quarter ending December
31, 1995.
2.3 Other Consideration
(a) Warrants. As additional consideration for this Agreement, Xxxxxx
has authorized the issuance of war-rants (the "War-rants") to purchase up to an
aggregate of seven and one-half (7 1/2%) percent of the fully diluted
outstanding Common Stock of Xxxxxx or any affiliate or subsidiary or other
entity formed by or through Xxxxxx that may be in existence or formed to operate
under this Agreement ("NEWCO") such percentage to be measured at the time of
initial capitalization. It is anticipated that the initial aggregate capital
will be $500,000 on or before September 9, 1995. Such warrants will be promptly
issued and BFI may exercise its Warrants, in whole or in part, at any time
beginning on a date one year from the date of any initial public offering of the
shares of NEWCO, but not later than a date three years from the date of initial
public offering (the "Expiration Date"), at a purchase price equal to the per
share price of the shares offered to the public in the initial public offering.
(b) Capital Stock. BFI (either directly, through its shareholders,
or other designees, as designated by BFI) shall have the right to contribute
capital up to twenty-five (25%) percent of any funds initially contributed to
NEWCO in exchange for up to twenty-five percent of the ownership of said entity
on the same terms and conditions as all other investors, on or before September
8, 1995. Xxxxxx agrees that the initial capitalization NEWCO shall be
approximately S500,000,
(c) Board Representation. BFI shall have be entitled to designate
one member of the Board of Directors of NEWCO. Xxxxxx shall cause NEWCO's other
investors to enter into a voting agreement in form and substance reasonably
satisfactory to BFI in order to effectuate this provision,
ARTICLE III
TERM
3.1 Term. This agreement shall be in effect during the term of BFI's
License Agreement with STI, including all renewals and extensions thereof. The
term of BFI's License Agreement with STI expires on November 24, 2008. BFI shall
use its best efforts to maintain its License Agreement with STI in good standing
and in full force and effect. In the event of any default in BFI's License
Agreement with STI, subject to STI's consent, Xxxxxx shall have the right to
cure said default on behalf of BFI and to the extent such cure requires money
payments, Xxxxxx shall have the right to cure said defaults by paying all
delinquent payments due and offset said payments by Xxxxxx against any royalties
due BFI under this Agreement. After said default
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is corrected by Xxxxxx the continuing license will be between Xxxxxx and STI
directly, with all future royalty payments paid directly to STI (see Exhibit A,
the STI Novation Agreement). Attached hereto as Exhibit B is a true and correct
copy of the BFI License Agreement with STI.
3.2 Termination. This Agreement shall be terminable by notice in writing
from the party not at fault if any one of the following events shall occur:
(a) Either party's material default under this Agreement which has
not been remedied within thirty (30) days from notice in writing from the party
not in default specifying such default;
(b) Xxxxxx'x failure to pay any amounts due to BPI pursuant to
Article II when due and such failure is not cured within thirty (30) days from
written notice after such payment is due;
(c) Xxxxxx'x material misrepresentation of the function of the
SportsTrac System to Xxxxxx'x customers and said failure is not corrected within
thirty (30) days after written notice from BFI of such failure.
(d) Termination of the STI License Agreement shall automatically
terminate this Sublicense granted to Xxxxxx in Article I of this Agreement and
Xxxxxx'x ongoing license will be directly with STI without change in terms (see
Section 3.1 Term and the STI Novation Agreement).
ARTICLE IV
BFI'S OBLIGATIONS AND WARRANTEES
4.1 Obligations of BFI. BFI shall:
(a) Provide Xxxxxx with one complete copy of all its FACTOR 1000
systems and application source code, to be used by Xxxxxx for only the purposes
provided herein.
(b) Provide Xxxxxx with one complete copy of all the source code for
sports related applications completed to date, to be used by Xxxxxx for only the
purposes provided herein.
(c) Provide Xxxxxx with one copy of all written technical
documentation for its FACTOR 1000 and sports related software, including
programmer's notes, file layouts and flow charts, to be used by Xxxxxx for only
the purposes provided herein.
(d) Provide Xxxxxx with all its internal FACTOR 1000 support
software and related documentation, including complete listings of all libraries
and subroutines (both developed internally and provided by third parties.)
Provide all third party vendor's name, address and all documentation detailing
the routine or library's utility.
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(e) Provide Xxxxxx with its complete FACTOR 1000 database software
system (known as "FMR") at no cost and a suitable operating platform at BFI's
current fully burdened cost, if Xxxxxx chooses to purchase said platform from
BFI.
(f) Provide Xxxxxx with initial technical support and consulting
equal to 40 hours without charge as reasonably required and requested by Xxxxxx,
it being acknowledged by Xxxxxx that BFI's currently available resources for
such support are quite limited. BFI's reasonable out-of-pocket costs, if any,
will be paid by Xxxxxx.
(g) Provide Xxxxxx with reasonable ongoing technical support at
BFI's current fully burdened cost, as requested by Xxxxxx. Such support will
include up to 40 hours per month of Xxxx Xxxxxxx'x engineering expertise during
the first six months of this agreement.
(h) Provide Xxxxxx with all current control panel documentation,
including bills of materials, parts lists, diagrams, schematics, and vendor
lists. BFI grants Xxxxxx the right to have control panels manufactured directly
with BFI's vendor or any other vendor Xxxxxx deems qualified to produce the
control panel.
(i) Sell Xxxxxx reasonable quantities of control panels, which shall
be forecasted quarterly by Xxxxxx, at BFI's current fully burdened cost.
(j) Sell Xxxxxx reasonable quantities of hardware platforms or fill
systems at BFI's current fully burdened cost.
(k) Not incur any liability on behalf of Xxxxxx or in any way to
pledge Xxxxxx credit or accept any order or make any contract binding upon
Xxxxxx without proper written consent.
4.2 Additional Assistance. For additional assistance requested by
Xxxxxx and provided to Xxxxxx or its customers during installation of the
SportsTrac service, Xxxxxx shall pay BFI at BFI's then current published rates
for such assistance. BFI shall also be reimbursed for reasonable out-of-pocket
expenses. Payments due under this section shall be due and payable upon receipt
by Xxxxxx of an invoice for such assistance from BFI.
4.3 BFI Representations and Warranties.
(a) BFI warrants that it has the right to provide the hardware and
sublicense the software to Xxxxxx hereunder and that BFI has not received notice
from any third party that the FACTOR 1000 System and/or the SportsTrac System
infringes any United States or Canadian patent or copyright;
(b) BFI warrants to Xxxxxx that each diskette(s) on which the FACTOR
1000 and/or SportsTrac software is furnished to Xxxxxx and each of the Control
Panels supplied pursuant to section 4.1 will be free from defects in materials
and workmanship under normal use and in good working condition. BFI will replace
any diskette and control panel not meeting the
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foregoing warranty within five(s) business days of receipt of said alleged
defective diskette or Control Panel by BFI for a period of one year after
shipment;
(c) BFI warrants to Xxxxxx that its License Agreement with STI,
granting BFI, among other things, the night to develop, manufacture, reproduce,
use and market certain proprietary technology and associated protocols and
methodologies which BFI utilizes in the FACTOR 1000 and SportsTrac Services are
in full force and effect, there is no breach of said agreement by either party
and entering into and performing this Agreement will not constitute or result in
a breach under said agreement.
EXCEPT AS PROVIDED FOR IN THIS SECTION 4.3, BFI DISCLAIMS ALL WARRANTIES
ON THE HARDWARE AND SOFTWARE PROVIDED PURSUANT TO THIS AGREEMENT, INCLUDING ANY
AND ALL IMPLIED WARRANTIES OF FITNESS AND/OR MERCHANTABILITY. THE PARTIES AGREE
THAT EXCEPT AS PROVIDED FOR IN THIS SECTION 43, BFI WILL NOT BE LIABLE FOR ANY
DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN
CONNECTION WITH THE USE OR PERFORMANCE OF THE HARDWARE OR SOFTWARE FURNISHED BY
BFI.
4.4 Marketing. BFI hereby grants to Xxxxxx the right to copy any manuals
and marketing materials used in connection with its FACTOR 1000 service as are
required or as needed for the marketing and implementation of the SportsTrac
Service to existing and prospective Xxxxxx customers.
4.5 Marketing. Xxxxxx shall have the exclusive authority to deter-mine its
own marketing and sales program for the Territory. This shall include the right
to market directly and through sub-distributors appointed by Xxxxxx from time to
time in its sole discretion; provided that any such sub-distributor shall enter
into an agreement with Xxxxxx by which such sub-distributor agrees to honor the
provisions of Section 5.2 hereof
ARTICLE V
CERTAIN AGREEMENTS OF XXXXXX
5.1 Xxxxxx'x Obligation. Xxxxxx shall:
(a) Use all reasonable efforts to develop, promote and market the
SportsTrac System within its markets.
(b) be solely responsible for all marketing, sales and related
activities in connection with its efforts to solicit and grant sublicenses to
utilize the technology pursuant to this Agreement;
(c) provide BFI with adequate lead time to supply control panels
required for Xxxxxx'x client installations, and pay BFI for said control panels
at BFI's current fully burdened cost.
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(d) provide BFI with advance copies of all advertising and/or
marketing materials it intends to distribute concerning the FACTOR 1000 service,
which materials will be approved by BFI in its sole discretion prior to use by
Xxxxxx;
(e) Xxxxxx shall not solicit or attempt to hire Xxxx Xxxxxxx, an
employee of BFI, but shall have the right to reasonably retain his services
through BFI at BFI's fully burdened cost for said employee (see Section 4.1g);
(f) During the term of this agreement, Xxxxxx shall not, except with
BFI's prior written consent, engage in any business activity which is directly
in competition with any of the other products or services being sold or
otherwise provided by BFI, as of the date of this agreement.
5.2 Confidentiality.
(a) Proprietary Information. In conducting the activities
contemplated by this Agreement, Xxxxxx may, from time to time, receive from BFI
confidential information and trade secrets ("Secrets"). Xxxxxx acknowledges that
BFI's Secrets include, but are not limited to (1) software source and object
code, certain documentation for its FACTOR 1000 and the SportsTrac Services,
schematics, reports, programs, user lists and/or the date generated by users of
its FACTOR 1000 service, training techniques, formats, specifications and
procedures relating to testing, documentation, algorithms, processes, "look and
feel" of its FACTOR 1000 service and know-how (whether or not reduced to writing
and whether or not copyrightable); (il) any modification of the same; and (ill)
any extraction from the same; and certain other scientific, technical,
financial, marketing and business information, trade secrets and confidential
knowledge of BFI;
(b) Protection. Xxxxxx agrees (i) to hold BFI's Secrets in
confidence; (ii) to refrain from disclosing BFI's Secrets except to its own
personnel and agents who need to know such information to perform their duties
and to licensees of Xxxxxx'x who enter into similar confidentiality agreements
with Xxxxxx for the bene-fit of BFI; (iii) to safeguard BFI's Secrets in the
same manner it employs for its own trade secrets, but in no event shall Xxxxxx
exercise less than due care and diligence in accordance with good commercial
practice; and (iv) not to use BFI's Secrets to the detriment of BFI, nor use
BFI's Secrets in any business competitive with or similar to any business of
BFI, which secrets Xxxxxx may have acquired in the course of or incident to the
performance of this Agreement, including, without limitation., any material
available to Xxxxxx or any reproductions or summaries thereof Notwithstanding
the foregoing, Xxxxxx may make such disclosures as may be required by any court
or quasi-judicial administrative body pursuant to any applicable laws, statutes
or regulations, provided that Xxxxxx shall, to the extent possible, give BFI
advance notice of any such demand for information and shall permit BFI to
intervene and make such representations and take such actions to challenge any
such demand as BFI may deem necessary or appropriate; such intervention or other
action being done at BFI's expense. Xxxxxx further agrees to deliver to BFI all
hardware, software, manuals, documentation, confidential information,
proprietary documents, data or calculations, and any copies thereof, in its
possession pertaining to BFI or any of its affiliates at the time of
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termination of this Agreement. Xxxxxx agrees to notify BFI immediately if it has
knowledge that any unauthorized third party possesses or uses BFI's Secrets or
that BFI's Secrets are being utilized for any unauthorized purpose;
(c) Exclusion. This Section 5.2 shall not apply to secrets that are
or become generally known or used by others in the same or competing business
with BFI other than through breach of this Agreement by Xxxxxx, its employees or
agents,
(d) Copying and Modification. Xxxxxx shall not make any unauthorized
copy of any Secrets disclosed by BFI. Xxxxxx shall not make any unauthorized
copy of any of the proprietary software provided to Xxxxxx pursuant to this
Agreement. Xxxxxx may make modifications but such modifications, enhancements or
derivative works are hereby assigned to BFI, subject to the exclusive license
hereunder in favor of Xxxxxx. Xxxxxx shall take any and all steps from time to
time as may be reasonably necessary to effectuate such assignment.
ARTICLE VI
INDEMNIFICATION
6.1 BFI's Indemnification of Xxxxxx. BFI will indemnify, defend and hold
harmless Xxxxxx, and each of its officers and directors, against all expenses,
claims, losses, damages and liabilities (or actions in respect thereof), arising
out of or based on any negligence on the part of BFI or its officers, directors
employees or agents, in the performance of BFI's obligations pursuant to this
Agreement and any breach, breach of warranty or material Misrepresentation of by
BFI- BFI will indemnify, defend and hold harmless Xxxxxx against any claim, suit
or proceeding against Xxxxxx based on (i) any such material breach or
misrepresentation or (ii) a claimed infringement of a United States patent or
copy-right by the software or (iii) a claimed infringement of a United States
service xxxx or trademark by its FACTOR 1000 service xxxx.
6.2 Xxxxxx'x Indemnification of BFI. Xxxxxx will indemnify, defend and
hold harmless BFI, and each of its officers and directors, against all expenses,
claims, losses, damages and liabilities (or actions `in respect thereof, arising
out of or based on any third party claim resulting from (i) Xxxxxx'x marketing
and/or implementation of products containing the FACTOR 1000 or SportsTrac
technology; (ii) services rendered by Xxxxxx hereunder, except to the extent set
forth in section 6.1 above; and (iii) the use or performance of equipment
provided by Xxxxxx; except claims based upon BFI's negligence with respect
thereto. Notwithstanding the foregoing, the liability of Xxxxxx pursuant to the
indemnities set forth in this Section 6.2 shall be limited to the amount of One
hundred Thousand Dollars ($100,000).
6.3 Indemnification Procedures. Each party entitled to indemnification
under this Article VI (the `Indemnified Party") shall give notice to the party
required to provide indemnification (the "Indemnifying Party") promptly after
such indemnified Party has actual knowledge of any claim as to which indemnity
may be sought. After notice from the indemnifying Party to the indemnified Party
of the indemnifying Party's assumption of the defense of all such actions or
proceedings, the indemnifying Party shall not be liable to such indemnified
Party for any fees of such indemnified Party's counsel subsequently incurred in
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connection with the defense of such actions or proceedings, but shall be liable
to the extent described above for all other reasonable expenses incurred by such
indemnified Party. The indemnified Party shall have the right to employ separate
counsel at the indemnifying Party's expense if (i) the indemnifying Party has
agreed to pay such fees and expenses; (ii) the indemnifying Party shall have
failed to promptly assume the defense of such action or proceeding and employ
counsel reasonably satisfactory to the indemnified Party in such action or
proceeding; or (iii) the named parties to any such action or proceeding
(including any impleased parties) include the indemnified Party and the
indemnifying Party, and the indemnified Party shall have been advised by counsel
that there may be one or more legal defenses available to the indemnified Party
which are different from or in addition to those available to the indemnifying
Party and which could result in actual or potential differing interests between
such parties in the conduct of the defense of such actions or proceedings. No
indemnifying Party, in the defense of any such claim or litigation, shall,
except with the consent of each indemnified Party, consent to entry of any
judgment or enter into any settlement which does not include as an unconditional
term thereof the giving by. the claimant or plaintiff to such indemnified Party
of a release from all liability in respect to such claim or litigation.
ARTICLE VII
MISCELLANEOUS
7.1 Independent Agents. Each party to this Agreement shall act as an
independent agent with relation to this Agreement and has no authority to act
for or on behalf of the other or to bind the other to any obligation in any
manner except as expressly set forth herein. Nothing contained herein shall be
construed as creating a joint venture or partnership between the parties.
7.2 Continuing Obligations. All obligations that by nature survive
expiration or termination of this Agreement shall continue subsequent to and
regardless of such expiration or termination until full satisfaction, or until
by nature expire.
7.3 Successors and Assigns. Except to the extent assignment is
specifically limited herein, this Agreement shall inure to the benefit of and be
binding on and be enforceable by the respective successors, assigns and legal
representatives of the parties hereto.
7.4 Entire Agreement; Modifications. This Agreement, including all
Exhibits and Schedules hereto (each of which is incorporated herein by this
reference), contains the entire Agreement between the parties and supersedes any
and all prior agreements, arrangements and understandings between the parties
relating to the subject matter hereof No oral understandings, statements,
promises or inducements contrary to the terms of this Agreement exist. No
supplement, modification or amendment of this Agreement shall be binding unless
executed in writing by the parties hereto. No waiver of any of the provisions of
the Agreement shall be deemed to be or shall constitute a continuing waiver. No
waiver shall be binding unless executed in writing by the party making the
waiver. The parties also intend this Agreement to be a complete and exclusive
statement of the terms of their agreement, which may not be explained or
supplemented by evidence of consistent additional terms.
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7.5 Amendments and Waivers. Any term. of this Agreement may be amended and
the observance of any term hereof may be waived (either prospectively or
retrospectively and either generally or in a particular instance) only with the
written consent of the parties hereto,
7.6 Choice of Law. This Agreement is entered into and is to be performed
in accordance with the laws of the State of Delaware and shall be construed and
enforced in accordance therewith.
7.7 Notices, etc. AR notices and other communications required or
permitted hereunder will be in writing and will be mailed by first-class mail,
postage prepaid, addressed
(a) if to BFI at:
BioFactors, Inc.
0000 Xxxx Xxxx., Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attn.: Xxxxxxx X. Xxxx, Chief Operating Officer
(000) 000-0000
or at such other address as BFI will have furnished to Xxxxxx in Writing in
accordance with this section, or
(b) Xxxxxx at:
Xxxxxx International Associates, Inc.
000 Xxxxxxxxx Xxx.
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
(000) 000-0000
(000) 000-0000 fax
or at such other address as Xxxxxx will have furnished to BFI in writing in
accordance with this section. Ml notices and other communications to be given
hereunder shall be given in writing. Except as otherwise specifically provided
herein, all notices and other communications hereunder shell be deemed to have
been given if personally delivered to an officer of the party being served, of
by Telex or facsimile machine, at the time they are transmitted, or Three (3)
business days after mailing thereof by registered or certified * mail, return
receipt requested, postage prepaid, to the address of the receiving party set
forth above (until notice of change thereof is served in the mariner provided in
this Section 7.7).
7.9 Separability. In case any provision of this Agreement not material to
the benefits intended to be conferred hereby is invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions will not in any way be affected or impaired thereby.
7.10 Miscellaneous. Except as set forth herein, time is of the essence for
the performance of each and every covenant and the satisfaction of each and
every condition
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contained in this agreement. The headings and captions of this Agreement are for
the purpose of reference only and shall not limit or define any meaning or terms
hereof. All references to the masculine shall include both the neuter and the
feminine. The singular shall include the plural and vice versa as the context
shall require. This Agreement may be executed in two or more counterparts, each
of which shall he deemed an original, but a of which together shall constitute
one and the same instrument. The provision. of this Agreement shall be
interpreted in accordance with their fair meaning and shall not be construed
strictly for or against a party.
7.11 Authority and Execution. Each person executing this Agreement on
behalf of a party hereto represents and warrants that he is duly and validly
authorized to do so on behalf of such a party, with full right and authority to
execute this Agreement and to bind such party with respect to all of its
obligations hereunder.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly
executed by their duly authorized representatives effective as of the date first
set forth above.
BIOFACTORS, INC.
By: /s/
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Its CEO August 30, 1995
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XXXXXX INTERNATIONAL ASSOCIATES, INC.
By: /s/
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Its
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