Exhibit 10.1
Exhibit A to the Exclusive Licensing Agreement
EXCLUSIVE LICENSING AGREEMENT
This Exclusive Licensing Agreement ("Agreement") is made as of Oct. 8, 2002 by
and between Biowell Technology Inc., a company duly incorporated and organized
under the laws of Taiwan, Republic of China, ("ROC), having its principal office
at 00X, Xx. 000, Xxxxx-Xxxxx Xx., Xxxxx-Xx Xxxx, Xxxxxx Xxxxxx, Xxxxxx, 235 ROC,
(hereinafter referred to as "Biowell") and Applied DNA Sciences, Inc., a
corporation duly incorporated under the laws of the State of Nevada, United
States of America with principal office at 0000 Xxxx Xxxxxx Xxxx. Xxxxx 000, Xxx
Xxxxxxx, Xxxxxxxxxx 00000, XXX ("Licensee"), either or both of which is referred
to as a "party" or the "parties.
RECITALS
A. Biowell has developed various technologies and know-how including,
without limitation, various DNA based anti-counterfeiting technologies
("Technology"), and owns the rights to patents and patent applications
covering several aspects of this Technology. In addition Biowell
possesses proprietary knowledge of the Technology. Biowell desires to
license the right to manufacture Licensed Products for Licensee to
manufacture Licensed Products in the Territory as defined in Exhibit 1
attached hereto using materials purchased from Biowell. Biowell also
desires to sell various parts and components related to the Products to
Licensee for Licensee to manufacture the Licensed Products. Biowell
also desires to sell finished Biowell Products to Licensee.
B. Licensee desires to: (a) purchase materials to manufacture the Licensed
Products itself for sale in the Territory; or (b) purchase finished
Biowell Products from Biowell for resale in the Territory.
DEFINITIONS
Unless the context requires otherwise, whenever used in this Agreement the
following terms and expressions shall have the following meaning:
"Agreement" shall mean this agreement including its Exhibits, as it may be
amended from time to time by written agreement of both parties.
"Average Biowell Share Price" means the average closing price of Biowell common
shares as reported on the relevant national market exchange for each of the
[fifteen (15)] trading days immediately preceding the date of exercising the
Biowell Option.
"Average Licensee Share Price" means the average closing price of Licensee
common shares as reported on the relevant national market exchange for each of
the [fifteen (15)] trading days immediately preceding the date of exercising the
Licensee Option.
"Biowell Option" means the option issued to Licensee or its lawful
successor-in-interest by Biowell as further described in Section 4.
"Biowell Option Shares" means the number of shares of common stock in Biowell
deliverable upon exercise of the Biowell Option, as adjusted from time to time.
"Biowell Products" means Products manufactured by Biowell.
"Business Day" means any day except a Saturday, Sunday or other day on which
commercial banks in the city of Taipei and New York are authorized by law to
close.
"Business Methods" mean business methods developed, licensed to, and/or owned by
Biowell relating to the Technology and Products.
"Company" shall mean either Licensee or Biowell where relevant.
"Confidential Information" includes all information, whether written or oral, in
whatever form disclosed, concerning any technologies, products, developments,
business methods, business plans, marketing, investment, management, financial
and other business affairs in connection with all matters relating to or arising
out of this Agreement, including without limitation the Technology, the Business
Methods and Know How.
"Customers" means any natural or legal person(s) or entities primarily solicited
by Licensee under this Agreement in the Territory.
"Delivery Date" shall mean the date specified by Licensee in a Purchase Order on
which a Product or Product Material is required to be delivered by Biowell to
Licensee.
"Exercise Period" means the three calendar years immediately following the
Effective Date of this Agreement.
"Holder" means Licensee where Licensee is the holder of the Biowell Option or is
offering to exercise the Biowell Option; and means Biowell where Biowell is the
holder of the Licensee Option or is offering to exercise the Licensee Option.
"Intellectual Property Rights" shall mean:
(a) patents, designs, utility models, design rights, copyrights,
database rights, topography rights, trade or service marks
(whether or not registered) or any similar rights in brands;
(b) applications for any of the foregoing and the right to apply
therefor in any jurisdiction;
(c) Know-How, trade secrets and other Confidential Information;
and
(d) domain name registrations;
(e) and all or any similar or equivalent rights arising or
subsisting in any jurisdiction.
"Know-How" means all technical, operational and commercial Confidential
Information (including but not limited to Confidential Information relating to
product development, business plans, business models, marketing, and other
business affairs of the disclosing party) required for the exploitation of
Technology or related to the Products, and including such Confidential
Information as may relate to any Intellectual Property therein.
"Maximum Licensee Shares" means 500,000 common shares in Licensee or Licensee's
successor-in-interest.
"Maximum Biowell Shares" means 500,000 common shares in Biowell.
"Minimum Guarantee" shall mean the minimum quantity of business volume to be
generated by Licensee on behalf of Biowell as further described in the attached
Exhibit 2.
"Product" means either Licensed Product or Biowell Product as the context
requires, as specified in Exhibit 3 attached hereto.
"Product Materials" means any and all raw materials required to manufacture the
Licensed Products for resale in the Territory.
"Purchase Order" shall mean an order for Biowell Products that Licensee submits
and Biowell accepts. All Purchase Orders will be gathered and controlled by the
terms of this Agreement unless otherwise agreed to in writing by Licensee and
Biowell.
"Licensee Option" means the option issued to Biowell by Licensee as further
described in Section 4.
"Licensee Option Shares" means the number of shares of common shares in Licensee
or Licensee's successor-in-interest deliverable upon exercise of the Licensee
Option, as adjusted from time to time.
"Licensed Products" means Products as described in Exhibit 3 manufactured by
Licensee incorporating Product Materials.
"Territory" means the territories specified in Exhibit 1.
1. Grant of Exclusive Right
1.1 Subject to the terms and conditions of this Agreement and for so long
as Licensee is in compliance with all of its obligations hereunder,
Biowell hereby grants an exclusive right for Licensee to: (a)
manufacture the Products using only Product Materials purchased from
Biowell or its authorized designees for resale in the Territory; and
(b) resell the Products, either purchased from Biowell directly or
manufactured by Licensee using Product Materials purchased from
Biowell, in the Territory (collectively, "Exclusive License"). Licensee
shall purchase Product Materials only from Biowell or its authorized
designees. The parties understand that the exclusivity of the
manufacturing arrangement requires that Licensee give an undivided
priority of the highest loyalty to the Products in all business
endeavours. No express or implied licenses of any type for the
Technology shall be granted to Licensee.
1.2 Licensee may also purchase finished completed Biowell Products from
Biowell for resell in the Territory under the procedures set forth in
this Agreement.
1.3 Upon the terms specified in this section, Biowell shall license any new
improvements, modifications or alterations related to the Products in
this Agreement to Licensee ("New Improvement License"). Subject to the
terms of this Agreement, Biowell shall also grant an exclusive license
to market every new anti-fraud products developed by Biowell while this
Agreement remains in effect ("New Product License"), Such New Product
License shall remain exclusive for 365 calendar days after the date
Licensee can actually sell the New Products in the Territory. In order
to maintain the exclusivity of such New Product License in Licensee's
Territory for the second calendar year, Licensee must provide Biowell
with received gross order for such every New Products amounting to
US$100,000.00 ("Minimum Guarantee for New Products") during the first
calendar year. Licensee will need to increase its sales by 20% annually
in years 2, 3, 4, and 5 in order to keep its exclusive license for any
new products at which point t hese products will fall into the same
category and conditions placed on the original licensed product line.
1.4 Support. Biowell shall provide reasonable telephonic and electronic
mail ("e-mail") support to Licensee on an as needed basis, during
Biowell's regular business hours. Biowell shall appoint a liaison to
communicate with Licensee, and Licensee shall funnel its inquiries
through such appointed liaison so as to minimize any disruption to the
staff of Biowell. Licensee agrees to provide Biowell with timely
written notification containing specific details of problems to enable
Biowell to diagnose such problems.
1.5 Professional Guidance Licensee wishes to build lab(s) in its Territory,
at its own cost, for the purpose of analyzing, testing and/or
manufacturing Licensed products, and Biowell agrees at its own
discretion and at Licensee's cost, to assist Licensee by providing
Licensee with reasonable professional guidance, technical support and
training; the terms and conditions of which guidance, support and
training will be subject to the written agreement of the parties.
2. Term
2.1 Unless terminated in accordance with the terms of this Agreement, this
Agreement shall be effective as of the date of execution of this
Agreement, and shall remain in effect for five calendar years following
the execution of this Agreement ("Initial Term"). In the event that
Licensee complies with all of the Minimum Guarantee targets described
in Exhibit 2, this Agreement shall be automatically renewed for five
calendar years following the Initial Term ("Second Term"). If during
the Second Term, Licensee fails to fully comply with the Minimum
Guarantee target set forth on paragraph (e) of Exhibit 2 in any
calendar year during such Second Term, then Licensee shall forfeit its
Exclusive License and Biowell reserves the right to terminate this
Agreement with immediate effect by giving written notice to Licensee.
Licensee reserves the right to remain as the non-exclusive Licensee
with the term and conditions to be determined by both parties.
2.2 Biowell can not sell Products to Customers of the Licensee without
Licensee's prior consent and without paying licensee its fee and
without written consent by the licensee for the term of this agreement
and for 1 (one) year following the expiration or termination of this
Agreement, on condition that non-exclusive License Agreement is in
effect. Introducing any new Products to these Customers may only be
done with written consent by the Licensee and shall be done on such
terms as are mutually agreed by both Licensee and Biowell.
2.3 NON CIRCUMVENTION. In the event of circumvention of this agreement by
either party directly or indirectly; the circumvented party shall be
entitled to a legal monetary penalty equal to the maximum benefit it
should realize from such a transaction affected by such breach plus any
and all expenses including but not limited to all legal costs and
expenses incurred to recover the lost revenue.
2.4 In the event of termination not attributable to Licensee Biowell will
have the responsibility to continue to honor this Agreement with
Licensee in respect of assisting Licensee to fulfill any outstanding
agreements with Customers of the Licensee. In the event of termination,
Biowell will have the responsibility to continue to honor any
outstanding agreements with customers of the Licensee and must pay
Licensee or designee it's fees for the life of the relationship with
this customer as the non-exclusive Licensee unless the parties have
mutually agreed to end this relationship at which time Biowell will not
be required to pay Licensee a fee to service the customers. Biowell
only has a right to work with customers of Licensee that are under
contract all others on the contact list provided by Licensee may not be
contacted for a period of one year following any termination of this
agreement.
3. Price and Payment
3.1 In consideration for receiving the Exclusive License for the Initial
Term, Licensee shall issue or cause to be issued to Biowell one million
five hundred thousand shares (1,500,000 shares) of the new publicly
listed company following the proposed merger with ADNAS. This
consideration will satisfy the royalty for the Initial Term of the
Exclusive License and will be rendered to Biowell within 60 days after
the closing of the proposed merger with a public company and such
shares shall be non-refundable by Biowell under any circumstances. If
for any reason, such as inability to obtain necessary government or
third party approvals for the issuance contemplated in this Section,
Biowell is unable to obtain such share issuance or is only able to
obtain a portion of such share issuance within six (6) months following
the execution of this Agreement, Biowell may terminate this Agreement.
Full and timely fulfillment of its obligation concerning the above
mentioned consideration shall entitle Licensee to receive such training
sessions and written materials from Biowell related to Biowell
Products, as Biowell in its sole discretion shall decide to provide.
Biowell reserves all Intellectual Property Rights in any materials
provided in such training.
3.2 Biowell agrees to negotiate the terms and to abide by a leak out
agreement and conditions of a standstill agreement with Licensee. Upon
acceptance of such terms and conditions by both Parties, Biowell shall
execute such standstill agreement and shall agree not to sell its
shares obtained under this agreement for a period of one calendar year
after the expiration of the standstill period. Biowell agrees that if
it decides to sell such shares, then each such transaction shall be
subject to Rule 144 until Biowell's position is outside of Rule 144 and
Biowell has decreased it's ownership in ADNAS below 10% at which time
Biowell agrees to abide by a leak out not to exceed gross selling of 5%
of the previous months trading volume. This stand still /leak out
agreement will apply to any designee, assignee or successor that may
gain ownership of said shares secured by Biowell under the terms or
conditions of this Agreement.
3.3 The prices charged by Biowell for the Biowell Products and Product
Materials shall be those set forth as Exhibit 4. All prices are FOB
(Taiwan, ROC) and payment to Biowell from Licensee shall be due thirty
calendar days after delivery of the relevant Biowell Products and
Product Material to the carrier for shipment to Licensee. Prices are
exclusive of costs of transportation, insurance, taxes, customs,
duties, landing, storage and handling fees, and/or documents or
certificates required for exportation or importation, which will be
separately itemized and billed to Licensee in accordance with this
Section 3.3. Both Parties agree to negotiate a fee for Biowell Product
and Product Materials that will make the Licensee very competitive in
the Territory with any other potential competition that may arise over
the period. This competitive rate should not be increased more than the
previous calendar years published inflation rate in the United States
or 10 percent, whichever is higher without the consent b by the
Licensee.
3.4 No amounts payable to Biowell pursuant to the Agreement may be reduced
due to counterclaim, set-off, adjustment or other right which Licensee
may have against Biowell unless the Licensee has received defective
product at which time Biowell will be obligated to rectify this
situation in accordance with the relevant terms of this Agreement. Any
payment not made within the due date specified in each relevant
Purchase Order shall bear interest at a rate equal to the rate
specified in the relevant Purchase Order affected by the late payment.
3.5 Security. Biowell reserves the right to request from the Licensee a
cash deposit or letter of credit in a form to be approved by Biowell
and issued by a bank acceptable to it in an amount not exceeding the
total credit extended by Biowell for each Purchase Order, provided that
Biowell reserves the right to obtain an increase in the amount of the
letter of credit in its sole discretion (the "Letter of Credit").
Licensee agrees to continuously renew or replace the Letter of Credit,
as necessary, to keep it in effect during the term of Biowell's
extension of credit to Licensee under any Purchase Order and shall
within ten (10) Business Days of any draw down on the Letter of Credit
by Biowell, replenish any amounts drawn down so that the amount of the
Letter of Credit never falls below the amount set forth in this
Section, as the same may be increased pursuant to this Section. Nothing
contained herein shall limit or be interpreted to limit Biowell's
right.
4 Option and Subscription of Shares
4.1 Subject to obtaining the necessary corporate, third party and
government approvals, including without limitation, the approval by the
Securities and Futures Commission and the Investment Commission of the
ROC, Licensee may subscribe for new shares of common stock issued by
Biowell in an amount up to the Maximum Biowell Shares under the Biowell
Option granted to Licensee under this Section 4. Biowell agrees to make
such shares available to Licensee by any lawful means possible.
4.2 Grant of Licensee Option. For value received in the form of the mutual
grant of warrants between the parties, Licensee hereby irrevocably
grants to Biowell the Licensee Option as of the Effective Date of this
Agreement (the "Option Issue Date"). Subject to the terms and
conditions hereinafter set forth, Biowell is entitled, upon delivery of
the Licensee Option at the principal office of Licensee (or at such
other place as Licensee shall notify the Holder hereof in writing) in
accordance with this Section 4, to purchase from Licensee such number
of Licensee Option Shares up to the Maximum Licensee Shares at the
strike price of US$ 2 per share or 20% below the Average Licensee Share
Price, which ever is lower. The number of shares of Licensee Option
Shares issuable pursuant to this Section 4.2 shall be subject to
adjustment pursuant to this Agreement.
4.3 Grant of Biowell Option. For value received in the form of the mutual
grant of warrants between the parties, Biowell hereby irrevocably
grants to Licensee or its lawful successor-in-interest the Biowell
Option as of the Effective Date of this Agreement (the "Option Issue
Date"). Subject to the terms and conditions hereinafter set forth,
Licensee is entitled, upon delivery of the Biowell Option at the
principal office of Biowell (or at such other place as Biowell shall
notify the Holder hereof in writing) in accordance with this Section 4,
to purchase from Biowell such number of Biowell Option Shares up to the
Maximum Biowell Shares at the strike price of US$ 3 per share or 20%
below the Average Biowell Share Price, which ever is lower. The number
of shares of Biowell Option Shares issuable pursuant to this Section
4.2 shall be subject to adjustment pursuant to this Agreement.
4.4 Both Biowell and Licensee shall use good faith and fair dealing to
negotiate the standard industry terms and conditions for piggy back
registration rights relating to their respective Option shares and the
underlying shares, where permitted under the local laws.
4.5 Exercise Period of Option. The Licensee Option and Biowell Option shall
be exercisable, in whole or in part, from their respective Option Issue
Date and shall terminate at 5:00 p.m. Taipei time on the Business Day
immediately following the end of the Exercise Period.
4.6 Method of Exercise of Option. While the option of either Parties remain
outstanding and exercisable in accordance with this Section 4, the
respective Holder of such Option may exercise, in whole or in part, the
purchase rights evidenced hereby. Such exercise shall be effected by:
(a) the surrender of the respective Option, together with a duly
executed copy of the form of Notice of Election attached
hereto as Exhibit 5, to the secretary of the relevant company
at its principal office ("Exercise Notice") at the address
listed in this Agreement; and
(b) the payment to the relevant company of an amount equal to the
relevant exercise price for the relevant shares being
purchased.
4.6 Upon such delivery and payment, the Holder shall be deemed to be the
Holder of record of the relevant Licensee Option Shares or Biowell
Option Shares, as the case may be, notwithstanding that the stock
transfer books of the relevant company shall then be closed or that
certificates representing such shares shall not then be actually
delivered to the Holder or that, to the extent permitted by law, the
covenants undertaken in Exhibit 6 have not all been performed.
4.7 Covenants of Both Parties. Each Party hereby covenants to the other
Party to undertake the activities listed in Exhibit 6, attached and
made a part of this Agreement.
4.8 Representations & Warranties of Both Parties. Each Party hereby
warrants and represents to the other Party that the matters stated in
Exhibit 7 are substantially true and correct as of the date of this
Agreement. In addition, Licensee represents and warrants to Biowell
that it has the necessary ability and experience to carry out the
obligations assumed by it under this Agreement with the highest
standards of the industry. Licensee further warrants that by entering
into this Agreement, it is not and will not be in breach of any express
or implied obligation to any third party.
4.9 Adjustment of Shares. The number of and kind of shares purchasable upon
exercise of the relevant option and the relevant option exercise price
shall be subject to adjustment from time to time as follows:
(a) Subdivisions, Combinations and Other Issuances. If the Company
shall at any time prior to the expiration of the Exercise
Period subdivide its common shares, by split-up or otherwise,
or combine its common shares, or issue additional shares of
its common shares as a dividend, the number of Shares issuable
on the exercise of the relevant option shall forthwith be
proportionately increased in the case of a subdivision or
stock dividend, or proportionately decreased in the case of a
combination. Appropriate adjustments shall also be made to the
purchase price payable per share, but the aggregate purchase
price payable for the total number of the relevant option
shares purchasable under the relevant option (as adjusted)
shall remain the same. Any adjustment under this Section
4.9(a) shall become effective at the close of business on the
date the subdivision or combination becomes effective, or as
of the record date of such dividend, or in the event that no
record date is fixed, upon the making of such dividend.
(b) Reclassification, Reorganization and Consolidation. In case of
any reclassification, capital reorganization, or change in the
common shares of the relevant Company (other than as a result
of a subdivision, combination, or stock dividend provided for
in Section 4.9(a) above), then, as a condition of such
reclassification, reorganization, or change, lawful provision
shall be made, and duly executed documents evidencing the same
from the Company or its successor shall be delivered to the
Holder, so that the Holder shall have the right at any time
prior to the expiration of the relevant option to purchase, at
a total price equal to that payable upon the exercise of the
relevant option, the kind and amount of shares of stock and
other securities and property receivable in connection with
such reclassification, reorganization, or change by a Holder
of the same number of shares of common stock as were
purchasable by the Holder immediately prior to such
reclassification, reorganization, or change. In any such c ase
appropriate provisions shall be made with respect to the
rights and interest of the Holder so that the provisions
hereof shall thereafter be applicable with respect to any
shares of stock or other securities and property deliverable
upon exercise hereof, and appropriate adjustments shall be
made to the purchase price per share payable hereunder,
provided the aggregate relevant exercise price shall remain
the same.
(c) Notice of Adjustment. When any adjustment is required to be
made in the number or kind of shares purchasable upon exercise
of the relevant option, or in the relevant option exercise
price, the Company shall promptly notify the Holder of such
event and of the number of shares of the relevant option
shares or other securities or property thereafter purchasable
upon exercise of the relevant option.
(d) No Impairment. The Company and the relevant Holder will not,
by any voluntary action, avoid or seek to avoid the observance
or performance of any of the terms to be observed or performed
hereunder by the Company or the Holder, respectively, but will
at all times in good faith assist in the carrying out of all
the provisions of this Section 4.9 and in the taking of all
such action as may be necessary or appropriate in order to
protect the rights of the Company and the Holder against
impairment.
4.10 Issuance of Shares. The Company shall ensure that the relevant shares,
when issued pursuant to the exercise of the relevant option, will be
duly and validly issued, fully paid and nonassessable and free from all
taxes, liens, and charges with respect to the issuance thereof. 4.11
Transfer of Option. Subject to compliance with applicable securities
laws, the options granted hereunder and all rights (but only with all
related obligations) hereunder are transferable in whole or in part by
the Holder upon the prior written consent of the Company. The transfer
shall be recorded on the books of the Company upon (i) the surrender of
the relevant option, properly endorsed, to the Company at its principal
offices, (ii) the payment to the Company of all transfer taxes and
other governmental charges imposed on such transfer and (iii) such
transferee's agreement in writing to be bound by and subject to the
terms and conditions of the relevant option. In the event of a partial
transfer, the Company shall issue to the holders one or more
appropriate new options.
5. Board of Advisor and Consultant
5.1 Xx. Xxxx or his authorized nominee or Biowell will have the right to
serve as Board of Advisor in Licensee, who will have right to receive
notice of and participate in the meetings of the board of director of
Licensee without voting powers.
5.2 Biowell will invite a nominee of Licensee as a consultant to
participate meetings of the board of directors of Biowell without
voting powers.
6. Licensee Obligations
6.1 Licensee will source, solicit, and attract potential customers in the
Territory for purchasing Products either made by Licensee using Product
Materials or purchased directly from Biowell and Licensee shall
promote, market, and extend the sale of the Products in the Territory
to potential customers in the Territory. Licensee shall not bind
Biowell to any express or implied legal obligation with any third
parties, including Licensee's customers, while Licensee is executing
this Agreement. Licensee shall market, promote, and resell the Products
on its own behalf and not as an agent or representative of Biowell.
6.2 Licensee will perform any and all post-sale servicing of any type for
customers. Biowell shall not perform any support services to Licensee's
customers unless both parties agree otherwise in writing.
6.3 If any dispute arises in the Territory involving Biowell under this
Agreement, Licensee will use its best endeavors to limit the potential
damages to Biowell that could be caused by the dispute. Further,
Licensee will inform Biowell without undue delay of the nature of the
dispute and comply with all reasonable directions of Biowell in
relation thereto.
6.4 Licensee shall have the right to sub-license in its Territory in
accordance with this Section 6.4. Specifically, Licensee shall have the
right to authorize any third party to receive or utilize any benefit
derived by Licensee under this Agreement. Each, such authorization or
sub-licensing must be approved by Biowell and any resulting agreement
must be co-signed by Biowell. Biowell shall be reasonable with any such
request. Any new sub licensee shall comply in all respects with the
same restrictions placed on Licensee by Biowell in the original
license.
7. Indemnity
7.1 Indemnity against any Third Party Claims. Each Party ("Indemnifying
Party") will indemnify, defend, and hold the other Party, its officers,
directors, agents, employees, and affiliates, ("Indemnity Parties")
harmless from and against any and all liabilities, damages, losses,
expenses, claims, demands, suits, fines or judgments, including
reasonable attorney fees, costs and expenses incidental thereto, which
may be suffered by, accrued against, charged to or recoverable from the
Indemnity Parties, arising out of any third party claim. Promptly after
receipt by the Indemnity Parties of a threat of any action, or a notice
of the commencement or filing of any action against which the Indemnity
Party may be indemnified hereunder, the Indemnity Party shall give
written notice thereof to Indemnifying Party. Indemnifying Party shall
have sole control of the defense and of all negotiations for settlement
of such action. The indemnity provided herein shall not apply if the
alleged claim arises from any action or inaction however attributable
to Indemnity Parties.
8. Product & Product Materials Ordering Procedure, Forecasts,
Change Orders, & Cancellation
8.1 Biowell, within the limitations contained in this Agreement, agrees to
use best efforts to sell to Licensee, respectively, such quantities of
Product and Product Materials as Licensee may order in accordance
herewith.
8.2 Purchase of Products. Subject to the terms and conditions of this
Agreement, Biowell hereby agrees to sell and Licensee agrees to
purchase the Products and Product Materials during the term of this
Agreement.
8.3 Licensee agrees to meet the relevant Minimum Guarantee as set forth in
Exhibit 2 attached to this Agreement for each relevant sales period
described in Exhibit 2. Failure to meet the Minimum Guarantee on any
single occasion constitutes a material breach of this Agreement
permitting Biowell to terminate this Agreement after written notice has
been given to the Licensee and the Licensee has been given 60 days to
comply with the relevant Minimum Guarantee not met by Licensee by
either making up the shortfall in cash payable to Biowell or new
Purchase Orders in order to rectify any potential breach of this
agreement.
8.4 Forecast. Approximately thirty (30) Business Days prior to the first
calendar day of each calendar month during the term of this Agreement,
Licensee will provide Biowell with a [six (6)] month binding
forward-looking rolling forecast for internal planning requirements
(the "Forecast"). Licensee shall provide the first of such Forecast
three (3) months after the signing date of this Agreement.
8.5 Purchase Orders. Purchases shall be initiated by Licensee's written or
electronically dispatched Purchase Orders referencing the quantity, the
Product, applicable price, shipping instructions and requested Delivery
Dates. All Purchase Orders for Products and Product Materials placed by
Licensee hereunder shall be governed by the terms and conditions of
this Agreement. In the event of a conflict between the provisions of
this Agreement and the terms and conditions of Licensee's Purchase
Order or Biowell's acknowledgement or other written or oral
communications, the provisions of this Agreement shall prevail and any
such conflicting terms and conditions are hereby rejected. Biowell
shall use reasonable efforts to fill orders promptly, but shall not be
liable for any damage to Licensee or any third party for failure to
fill any orders, or for any delay in delivery or error in filling any
orders. Biowell will use its best efforts to accept each Purchase Order
issued by Licensee. Biowell will ship all Product within the Lead Time
unless Licensee's Purchase Order specifically states a delivery
schedule for Product different from such lead time and such delivery
schedule is accepted in writing by Biowell.
8.6 Purchase Order Information. Purchase Orders issued by Licensee shall,
to the extent necessary for Biowell to fulfill the terms thereof,
include: (i) description of Products and Product Materials, (ii)
quantity of Products and/or Product Materials, (iii) price per unit of
Products and Product Materials (iv) total order price, (v) Delivery
Date, and (vi) delivery location. Except as otherwise explicitly
provided in this Agreement, any changes to or rescheduling of an
accepted Purchase Order must be mutually agreed and incorporated into a
written Change Order referencing the original Purchase Order.
8.7 Confirmation. Within five calendar days of its receipt of the Purchase
Order, Licensor must send written notice to LICENSEE for acceptance of
the order ("Confirmation");
8.8 Delivery Terms. All Products delivered to Licensee shall be FOB
(Taipei, Taiwan, ROC) or other place of shipment as specified in
writing by Licensee and agreed to by Biowell. Biowell may ship partial
orders provided Biowell notifies Licensee and Licensee agrees prior to
shipment. Licensee's Purchase Order shall specify the carrier or means
of transportation or routing, and Biowell will comply with Licensee's
instructions. If Licensee fails to provide shipping instructions,
Biowell shall select the best available carrier, on a commercially
reasonable basis.
8.9 Change Orders and Rescheduling. Any modification to a Purchase Order
shall be made in writing by an authorized representative of Licensee
("Change Order") and sent to Biowell, and such Change Order shall be
subject to acceptance in writing by Biowell and shall not be binding
until such acceptance.
9. Non-competition & Non-solicitation
9.1 During the term of this Agreement, Biowell shall not solicit Customers
solely developed by Licensee. Upon any termination of this Agreement,
the above restriction shall apply for a period of one year with the
exception of customers under contract to receive Product from Biowell.
Biowell shall be entitled to a detailed and exhaustive list of all
contact information for any and all Customers under contract to receive
Biowell Products. This is due to Biowell within five Business Days of
the date of termination of this Agreement and will follow provisions as
described in section 2 (2.4).
9.2 Customers of the Licensee are the sole property of the licensee and are
not under any restraints or conditions implied by Biowell and will not
be contacted or solicited by Biowell for a period of one year following
any termination or dissolution of this agreement with the exception of
2 (2.4).
9.3 Licensee and Biowell shall not, without the prior written consent from
the other party directly or indirectly (including without limitation,
through any Affiliate of either party), (i) solicit or request any
person who is at the time an employee of or a consultant of the other
party to leave the employment of or terminate such person's
relationship with that party or (ii) employ, hire, engage or be
associated with, or endeavor to entice away from the respected party
any such person.
9.4 Licensee or Biowell shall not, directly or indirectly (including
without limitation, through any Affiliate of either party) (i) solicit
any existing customer of either party or any entity that shall have
been a customer of that party at any time within twelve (12) months of
terminating this agreement to cease doing business in whole or in part
with that party (ii)?intentionally attempt to limit or interfere with
any business agreement or relationship existing between either party
and/or its Affiliates with any third party; or (iii) disparage the
business reputation of the party (or its management team) or take any
actions that are harmful to the parties goodwill with its customers,
providers, vendors, employees, the media or the public.
10. Confidentiality
10.1 Licensee shall not use or divulge or communicate to any person (other
than those whose province it is to know the same or as permitted or
contemplated by this Agreement or with the written approval of the
other party or as may be required by law): (i) any Confidential
Information ; or (ii) any of the terms of this Agreement
10.2 Licensee shall prevent the unauthorised publication or disclosure of
any such information, materials or documents and ensure that any
person, subject to the written approval of Biowell, to whom the
information, materials or documents are disclosed is aware that the
same is confidential and is covered by a similar duty to maintain
confidentiality.
10.3 Licensee shall ensure that its employees are aware of and comply with
the confidentiality and non-disclosure provisions contained in this
Section and shall indemnify Biowell against any loss or damage which
Biowell may sustain or incur as a result of any breach of confidence by
Licensee's employees.
10.4 The provisions of this section 10 shall survive the termination of this
Agreement with 10 years.
11. Reservation of Rights
11.1 Biowell reserves the right at any time:
(i) to make modifications or additions to the Technology, Product
Materials, and Products in respect to any designs as Biowell may in its
discretion determine; and such modifications or additions will be
automatically granted to the licensee and will be considered an
improvement to the licensed product line;
(ii) to discontinue selling Product Materials and Products if those
products or parts therefor are discontinued or replaced except for
those Products and Product Materials accepted to be delivered under a
confirmed purchase order; and
(iii) to require Licensee either not to use or to cease to use any
advertising or promotional material in respect to the Product Materials
and Products which Biowell considers not to be in Biowell's best
interests, upon 30 days written notice to licensee.
12. Legal Relationship
12.1 Nothing herein shall contain any facts as to suggest that Biowell and
Licensee are engaging in a joint venture or partnership. Licensee shall
have no authority to bind Biowell in any legal obligation. Licensee
shall only contract with customers on its own behalf.
13. Termination
Notwithstanding anything else contained herein, this Agreement may be
terminated.
13.1 Biowell may terminate this agreement if the Licensee: (a) sells,
assigns, attempts to sell or assign, or ceases to carry on, its main
business or the business related to this Agreement unless parties
mutually agree otherwise; (b) fails to meet any Minimum Guarantee
target (not including the relevant Minimum Guarantee for New Products
under Section 1.3, which shall be subject to Section 13.6) during the
then current term of the Agreement; or (c) fails to comply with any of
its obligations under this Agreement;
13.2 Immediately by Biowell if the control of Licensee has been transferred
without the prior written approval of Biowell which approval shall not
be unreasonably denied;
13.3 Immediately by either if the other party becomes insolvent or starts
negotiations about re-composition with its creditors or a petition in
bankruptcy is filed by or against it or it makes an assignment for the
benefit of its creditors;
13.4 by either party after having given 60 days notice in writing to the
other party if the other party breach any of its material obligations
under this Agreement and such breach is not cured within the
above-mentioned period;
13.5 Licensee shall not be entitled to any compensation (whether for loss of
distribution rights, goodwill or otherwise) as a result of the
termination of this Agreement in accordance with its terms.
13.6 Except as otherwise stated herein, in case Biowell has ground(s) to
terminate this Agreement because Licensee had failed to meet any
Minimum Guarantee target (not including the relevant Minimum Guarantee
for New Products under Section 1.3) during the then current term of the
Agreement, Biowell (in addition to asserting any legal right and remedy
at law or in equity) shall have the right to terminate the Exclusive
License granted in this Agreement in which case such Agreement shall
remain effective to the extent that Licensee shall remain as a
non-exclusive Licensee, with the same shipping terms and conditions and
the same price for Products for existing Customers as of the date of
termination, but price for the Products may be increased by up to 10%
for new Customer orders only. All other terms and conditions shall be
subjected to the Parties' agreement. For the avoidance of any doubt,
such right to remain as a non-exclusive Licensee shall not be available
to Licensee in case Biowell terminates this Agr eement for any other
reason specified in this agreement.
13.7. Remedy of Breach and Alternative to Termination: Licensee shall have 60
days to remedy/cure any potential breach or violation of terms in this
agreement from the date it receives written notification by courier or
US mail. Biowell hereby grants to Licensee a special termination-option
to convert its Licensee designation to that of a non-exclusive
manufacturer in the event of a non-curable breach. As an alternative to
forced termination, Licensee may, at its own discretion, exercise this
option prior to the initiation of termination. Licensee shall have this
option available, in lieu of termination for any reason and at its sole
discretion, to become a non-exclusive manufacturer of Biowell and/or a
Licensee for the Products and Technology in the Territory on such terms
and conditions to be determined by the parties.
14. Effect of Termination
On the termination of this Agreement:
14.1 All rights and obligations of the parties hereunder shall automatically
terminate except for such rights of action as shall have accrued prior
to such termination and any obligation which expressly or by
implication are intended to come into or continue in force on or after
such termination;
14.2 Licensee shall, at its own expense, return to Biowell or otherwise
dispose of as Biowell may instruct, all technical and promotional
materials and other documents and papers whatsoever sent to Licensee
and relating to the Technology, Product Materials and Products or the
business of Biowell (other than correspondence between the parties) and
all property of Biowell in Licensee's possession or under its control.
15. Exclusion of Liability
15.1 Except as set out in this Agreement or to the extent prohibited by law,
all conditions, warranties and representations, expressed or implied by
(i) statute, (ii) civil code or (iii) otherwise, in relation to any
Technology, Product Materials and Products, are excluded by Biowell.
15.2 Except as otherwise provided in this Agreement, Biowell shall not be
liable to Licensee, whether for negligence, breach of contract,
misrepresentation or otherwise, for:
(a) loss or damage incurred by Licensee as a result of third party
claims (whether in relation to Intellectual Property Rights or
otherwise); or
(b) indirect or consequential damage suffered by Licensee, including,
without limitation, loss of profits, goodwill, business opportunity or
anticipated saving.
15.3 Biowell shall not be liable for any loss, damages, expenses or
liabilities arising from an infringement or claim of infringement of
third party rights in the Intellectual Property Rights subsisting in
the Technology, Product Materials and Products howsoever arising in
connection with this Agreement.
15.4 Limited Warranty.
Biowell warrants that all Products and Product Materials sold by
Biowell to Licensee under the terms of this Agreement will be
materially free from defects in workmanship and materials and
substantially conform to the relevant Specifications under normal use
and service for a period of [ twelve 12 ] months after delivery to the
carrier for shipment to Licensee. Within five Business Days of
Licensee's receipt of the relevant Product Materials and Products,
Licensee shall notify Biowell if any Product Materials or Products
contains a material defect in materials or workmanship, or otherwise
fails to materially conform to the Specifications during the warranty
period. Biowell shall at its expense correct any such defect by
repairing such defective Product Materials and Products or, at
Biowell's option, by delivering to Licensee an equivalent Product
Materials and Products replacing such defective Product Materials and
Products. Biowell may inspect and verify such alleged defect in the
Territory and Licens ee will not need to ship the alleged defective
items to Taiwan. Such remedies for any breach of warranty as listed in
this Section 15.4 shall be the sole and exclusive remedies available to
Licensee at law or in equity.
15.5 WARRANTY EXCLUSIONS. BIOWELL SHALL NOT BE LIABLE UNDER ANY WARRANTY IF
ITS TESTING AND EXAMINATION DISCLOSES THAT THE ALLEGED DEFECT IN THE
PRODUCT OR PRODUCT MATERIAL DOES NOT EXIST OR WAS CAUSED BY LICENSEE'S
OR ITS END USER'S MISUSE, NEGLECT, IMPROPER INSTALLATION OR TESTING,
UNAUTHORIZED ATTEMPTS TO REPAIR, OR BY ACCIDENT, FIRE, LIGHTNING OR
OTHER HAZARD.
15.6 Biowell will be liable for the product manufactured by Biowell. Biowell
will cause such action to take place as necessary that will grant the
representative the rights to handle product liability for clients in
the territory. Licensee's customers are not required to go to licensor
directly to file a claim against product liability. Licensee will
handle the liability on behalf of the licensor. All expenses in this
matter shall be paid by licensor or licensor's insure.
15.7 EXCEPT FOR THE EXPRESS WARRANTIES CREATED UNDER THIS AGREEMENT AND
EXCEPT AS SET FORTH OTHERWISE IN THIS AGREEMENT, IN NO EVENT SHALL
EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, CONSEQUENTIAL,
SPECIAL OR PUNITIVE DAMAGES OF ANY KIND OR NATURE ARISING OUT OF THIS
AGREEMENT OR THE SALE OF PRODUCTS, WHETHER SUCH LIABILITY IS ASSERTED
ON THE BASIS OF CONTRACT, TORT (INCLUDING THE POSSIBILITY OF NEGLIGENCE
OR STRICT LIABILITY), OR OTHERWISE, EVEN IF THE PARTY HAS BEEN WARNED
OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE, AND EVEN IF ANY OF THE
LIMITED REMEDIES IN THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
In no event shall the aggregate liability of Biowell in connection with
this Agreement, or any other materials or services provided under this
Agreement, whether arising in contract, tort or under any other legal
theory (including, without limitation, negligence or strict liability),
exceed the total value of the relevant Purchase Order.
15.7 Licensee will not pass through to its retailers or customers or any
other third party any warranties made by Biowell hereunder and will
expressly indicate to its retailers or customers that they must look
solely to Licensee in connection with any problems, warranty claims or
other matters concerning the Product.
16. Intellectual Property Rights
16.1 All Intellectual Property Rights, including without limitation patents,
designs, utility models, copyrights trade or service marks, Know-How,
trade secrets and other proprietary information, in or relating to the
Technology, Product Materials and Products and any other products and
services related thereto are and shall remain the sole and exclusive
property of Biowell. Licensee shall have no right to obtain or grant
any licenses with respect to the Technology, Products, Product
Materials, or any other related products or services or any of the
Intellectual Property Rights therein or relating thereto.
16.2 Licensee shall notify Biowell as soon as it receives any knowledge of
any illegal or unauthorized use of any of the Technology and Products
or any of the Intellectual Property Rights therein or relating thereto
and will assist Biowell (at Biowell's expense) in taking all steps
necessary to defend Biowell's rights therein.
16.3 Licensee shall not in any way: (a) modify, disassemble, decompile, or
reverse engineer the Technology, Product Materials, and Products and
any related products supplied hereunder; (b) transfer possession of any
Technology, Product Materials, and Products and any related products
supplied hereunder to another party, except as expressly permitted
herein; or (c) use the Technology, Product Materials, and Products and
any related products supplied hereunder in any way not expressly
provided for this Agreement. There will be no implied licenses.
16.4 Subject to the express prior written approval of Biowell, Licensee may
use the trademarks and logos of Biowell for the sole purpose of
marketing, reselling and promoting the Products in the Territory under,
and during the term of, this Agreement.
16.5 The provisions of this section 16 will survive the termination of this
Agreement.
17. General
17.1 Governing Law and Dispute Resolution. This Agreement shall be governed
by, construed and take effect in accordance with ROC law without regard
to the choice of law principles thereof. Any dispute, controversy, or
claims arising out of or relating to this Agreement which cannot be
resolved within sixty (60) business days shall be exclusively submitted
to final resolution by arbitration pursuant to the Arbitration Law in
Hong Kong.
17.2 Counterparts and Facsimile Execution. This Agreement may be executed in
any number of counterparts, each of which will be an original but all
of which together will form one agreement. Delivery of an executed copy
of this Agreement by facsimile transmission will have the same effect
as delivery of an original signed counterpart.
17.3 Waiver. The failure of either party hereto to insist upon the strict
adherence to any term of this Agreement on any occasion shall not be
considered as a waiver of any right hereunder nor shall it deprive that
party of the right to insist upon the strict adherence to that term or
any other term of this Agreement at some other time.
17.4 Taxes & Fees. Licensee, and not Biowell, will be responsible for all
taxes and expenses incurred in Licensee's business, including
Licensee's business with Biowell. If Licensee is required by law to
make any deduction or withholding from any payment due hereunder to
Biowell, then, notwithstanding anything in this agreement to the
contrary, the gross amount payable by Licensee to Biowell, will be
increased so that, after any such deduction or withholding for taxes,
the net amount received by Biowell will not be less than the amount
that would have received had such deduction or withholding not been
required.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in two
copies of which each has received one. Biowell Technology Inc.
Applied DNA Sciences, Inc.
By: /s/ Jun-Xxx Xxxx By: /s/ Xxxxx Xxx
---------------------- -------------------
Name: Jun-Xxx Xxxx Name: Xxxxx Xxx
Title: Chairman & CEO Title: President
Date: 24 October 2002 Date: 07 Oct. 2002
Exhibit 1
---------
Territory
---------
Canada
United States of America
European Union countries
Note:
If a company's primary product outlets are in the Licensee's territory and
represents more than 50% of its business than the company shall be deemed to be
located in that territory regardless of the domicile of the companies parent or
corporate office. Licensee shall be responsible to provide Biowell with a
written notice of such case within 60 days of initiating this relationship.
Exhibit 2
---------
Minimum Guarantee
-----------------
To maintain the Exclusive License granted in this Agreement by Biowell to
Licensee, Licensee agrees to meet all of the following Minimum Guarantee
targets:
a) During the first anniversary of this Agreement, Biowell must receive at
least US$50,000.00 (net of any taxes or fees of any kind) from Purchase
Orders placed for Products or Product Materials by Licensee.
Alternatively, Licensee may meet this Minimum Guarantee for the first
year by paying US$25,000 to Biowell.
b) During the second anniversary of this Agreement. Biowell must receive
at least US$300,000.00 (net of any taxes or fees of any kind) from
Purchase Orders placed for Products or Product Materials by Licensee.
Alternatively, Licensee may meet this Minimum Guarantee for the second
year by paying US$100,000 to Biowell.
c) During the third anniversary of this Agreement, Licensee shall increase
the Minimum Guarantee amounting to [US$300,000] by at least twenty per
cent ("Third Year MG Target").
d) During the fourth anniversary of this Agreement, Licensee shall
increase the Third Year MG Target by at least twenty per cent ("Fourth
Year MG Target")
e) During the fifth anniversary of this Agreement, Licensee shall increase
the Fourth Year MG Target by at least twenty per cent.
f.)In the event that Licensee complies with all of the Minimum Guarantee
targets described in Exhibit 2, this Agreement shall be automatically
renewed for five calendar years following the Initial Term ("Second
Term"). If the Licensee continues to maintain its markets and to abide
by the terms and conditions of this agreement then the Licensee will
remain at a minimum the non- exclusive Licensee for Biowell 's products
and both parties agree to make all reasonable efforts to allow the
Licensee to remain as the Exclusive Licensee in its territories .
Exhibit 3
---------
Products
--------
(1) BWACI-C001 Covert AC-Ink-I;
(2) BWACI-I001 Instant AC-Ink-I;
(3) BWACL-I001 Instant detection DNA Label
(4) BWACI-K001 Instant Ink Detection Kit
(5) BWACC-C001-I AC-DNA Chip (128 bites)
(6) BWACC-C003-I AC-DNA Chip (64k bytes) (7) BWACC-R001-I AC-Chip Reader
Exhibit 4
---------
Price for Products and Product Materials
----------------------------------------
Products
numbers Items Weight Price (USD) Authentication
------------- ------------------------------- ------ ----------- -----------------
BWACI-I001 Overt ink - Instant detection 1kg 2500 Instant detection
------------- ------------------------------- ------ ----------- -----------------
BWACI-C001 Covert ink 10g 1000 Send to the lab
------------- ------------------------------- ------ ----------- -----------------
BWACL-I001 Overt label - Instant detection Piece 0.155 Instant detection
------------- ------------------------------- ------ ----------- -----------------
BWACI-K001 Instant ink detection kit Kit 0.125 ---
------------- ------------------------------- ------ ----------- -----------------
BWACC-C001- AC-DNA Chip (128 bites) --- 3.00 Instant detection
I
------------- ------------------------------- ------ ----------- -----------------
BWACC-C003- AC-DNA Chip (64k bytes) --- 5.00 Instant detection
I
------------- ------------------------------- ------ ----------- -----------------
BWACC-R001-
I AC-DNA Chip Reader --- 330.00 ---
------------- ------------------------------- ------ ----------- -----------------
Exhibit 5
---------
Notice Of Exercise
------------------
To: Company
The undersigned hereby elects to [check applicable subsection]:
________ (a) Purchase _________________ shares of Company Common Shares
pursuant to the terms of the Agreement executed between the
parties on [*], 2002 ("Agreement"), and payment of the
Exercise Price per share required under such Agreement
accompanies this notice; OR
________ (b) Exercise its option for [all of the shares] [________ of
the shares] [cross out inapplicable phrase] purchasable under
the Option pursuant to the Agreement.
The undersigned hereby represents and warrants that the undersigned is acquiring
such shares for its own account for investment purposes only, and not for resale
or with a view to distribution of such shares or any part thereof.
Name in which shares should be registered:______________________
HOLDER:
By:______________________________________
Name:____________________________________
Date:_______________
Exhibit 6
---------
Covenants
---------
(a) The board of directors of the relevant Company shall duly adopt as soon
as practicable after receipt of the Exercise Notice, resolutions (i)
setting forth amendments (the "Amendments") to the certificate of
incorporation of the relevant Company to authorize an increase in the
authorized number of shares of common stock of the relevant Company
equivalent to the Licensee Option Shares or Biowell Option Shares, as
the case may be, (ii) declare the advisability of such proposed
Amendments, and (iii) direct that the proposed Amendments be submitted
to the stockholder(s) of the Company for approval at a special meeting
of stockholders of the Company called for such purpose.
(b) the Company shall obtain the approval of the stockholders of the
Company with respect to the terms of this Agreement;
(c) the Company shall cause its the stockholders to adopt the proposed
Amendments;
(d) Company shall prepare, execute, acknowledge, file and record a
certificate amending the certificate of incorporation of the Company in
conformity with the proposed Amendments, and cause such certificate to
become effective, in accordance with the applicable corporations law;
(e) the board of directors of the Company shall reserve a sufficient number
of shares of common stock of the Company for issuance upon conversion
of the relevant option;
(f) the Company shall secure and obtain from its creditors and related
third parties any and all consents permitting Company to perform all of
its obligations under this Agreement, including, without limitation the
issuance of the common stock of the Company to Holder pursuant to the
terms hereof;
(g) as promptly as reasonably practicable, the Company shall instruct its
transfer agent to issue and deliver to the Holder at the address of the
Holder set forth on the Company's records, without any charge to the
Holder, a certificate or certificates (issued in the name of the
Holder) for the number of full shares of the Licensee Option Shares or
Biowell Option Shares, as the case may be, issuable pursuant to this
Agreement; and
(h) Company shall complete the above covenants (a) through (g) as soon as
reasonably practicable, and in any event within thirty (30) days of the
delivery of the relevant Exercise Notice.
(i) Following the exercise of the relevant option pursuant to Section 4 of
the Agreement, above, Holder and Company shall enter into a
shareholders' agreement setting forth such materials terms as the
holding period of the relevant shares, rights of first refusal,
anti-dilution protections, and other shareholder protection terms.
Exhibit 7
---------
Representations & Warranties
----------------------------
(a) Authorization. Licensee or Biowell (as the case may be), individually,
has full power and authority to enter into this Agreement, and this
Agreement constitutes its valid and legally binding obligation,
enforceable in accordance with its terms except (i) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium, and
other laws of general application affecting enforcement of creditors'
rights generally and (ii) as limited by laws relating to the
availability of specific performance, injunctive relief, or other
equitable remedies.
(b) Purchase Entirely for Own Account. The Licensee Option is being issued
to Biowell and the Biowell Option is being issued to Licensee in
reliance upon the relevant Holder's representation to the relevant
Company, which by such Holder's execution of this Agreement such Holder
hereby confirms, that the relevant option, and the relevant option
shares to be received by such Holder upon exercise of the respective
option ("Securities") will be acquired for investment for such Holder's
own account, not as a nominee or agent, and not with a view to the
resale or distribution of any part thereof, and that such Holder has no
present intention of selling, granting any participation in, or
otherwise distributing the same. By executing this Agreement, such
Holder further represents that such Holder does not have any contract,
undertaking, agreement or arrangement with any person to sell, transfer
or grant participations to such person or to any third person, with
respect to any of the Securities.
(c) Disclosure of Information. Licensee and Biowell individually, further
represents to the other respective party that it has had an opportunity
to ask questions and receive answers from the Company regarding the
terms and conditions of the offering of the Securities and the
business, properties, prospects and financial condition of the Company.
(d) Investment Experience. Licensee and Biowell, individually, further
represents to the other respective party that it is an investor in
securities of companies in the development stage and acknowledges that
it is able to fend for itself, can bear the economic risk of its
investment, and has such knowledge and experience in financial or
business matters that it is capable of evaluating the merits and risks
of the investment in the Securities.
