EXHIBIT 10.23
Pages where confidential treatment has been requested are stamped "Confidential
Treatment Requested. The redacted material has been separately filed with the
Commission." The appropriate section has been marked at the appropriate place
with a star [*].
EXHIBIT 10.23
AGREEMENT
This AGREEMENT ("Agreement") is made effective as of May 21, 1997 by and between
Xxxxxx Corporation, a Delaware corporation; with its principle place of business
at 0000 000xx Xxxxxx XX, Xxxxxxx, XX 00000 ("Xxxxxx") and Novus International
Inc., a Delaware corporation, with its principle place of business at 000
Xxxxxxxxx Xxxxxx Xxxxx, Xx. Xxxxx, XX 00000 ("Novus").
WHEREAS, Xxxxxx represents that it has the right to manufacture, market, sell
and distribute certain Products (as defined in Exhibit A) and to contract with
others to do so; and
WHEREAS, Novus represents that it has, or may acquire or engage, the resources
necessary to market, sell and distribute the Products; and
WHEREAS, the parties desire that Novus become the exclusive worldwide marketer,
seller and distributor of the Products in the Field (as defined in Exhibit A)
under the terms and conditions specified in this Agreement,
NOW THEREFORE, in consideration of the mutual covenants and agreements contained
herein, Xxxxxx and Novus agree as follows:
1. APPOINTMENT Subject to the terms of this Agreement, Xxxxxx hereby appoints
Novus, and Novus hereby accepts appointment as, the exclusive worldwide
marketer, seller and distributor of the Products in the Field for the Term (as
hereafter defined) of this Agreement. Novus and its subsidiaries agree not to
sell in the Field acidified sodium chlorite products that directly compete or
displace Products under this Agreement, nor to sell, place or give any
application systems the purpose of which is to apply such competing anti
microbial products, during the Term. Xxxxxx shall not itself engage in, or
appoint, authorize or allow any other entity to engage in any of the
aforementioned activities during the Term.
2. RIGHTS AND OBLIGATIONS OF XXXXXX Subject to and in addition to the other
terms and conditions of this Agreement, Xxxxxx shall, (at its cost and expense
except as otherwise specified):
(a) Be entitled to receive from Novus the payments specified herein.
(b) Diligently pursue and take all actions necessary to acquire at the
earliest reasonable date, United States Department of Agriculture ("USDA")
approval for sale and use of the Products in the Field ("USDA Approval").
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(c) Procure and pay for raw materials and ingredients for Products
("Materials") at mutually agreed terms and specifications from mutually approved
suppliers.
(d) File, maintain, prosecute and defend US Patents 5,389,390 and
5,185,161; and the continuations, divisions, counterparts, reexaminations,
reissue, and foreign equivalents of all the foregoing ("Xxxxxx Patents"). In
addition, any progeny of any of the foregoing, any other patents acquired or
controlled by Xxxxxx during the Term which dominate the Field shall be also be
included within the definition of Xxxxxx Patents. The costs of prosecution and
maintenance of any new patents acquired by either of the parties, used by Novus
in its activities hereunder, shall be borne by the owner of any such patent, but
the costs of defense of such patents, actually paid to an entity other than
Xxxxxx or Novus, shall, unless the owner of such patent chooses not to submit
such costs, be treated by Novus as a deducted cost in the computation of Net
Sales Revenue (as hereafter defined). Such costs incurred by Xxxxxx shall be
invoiced to Novus.
(e) Cooperate and jointly agree with Novus to explore and work together on
development of new applications and variations of the Products in the Field,
with such applications and variations to be covered by and within this
Agreement, with the costs of such efforts actually paid to an entity other than
Xxxxxx or Novus invoiced to Novus and treated by Novus as a deducted cost in the
computation of Net Sales Revenue.
(f) Secure and maintain all governmental and regulatory approvals,
registrations and the like and comply with all reporting and other requirements
in the United States affecting or related to the Products.
(g) Cooperate with Novus (including provision of information and
assistance and otherwise) in obtaining regulatory approvals outside the United
States, with the costs of such efforts actually paid to an entity other than
Xxxxxx or Novus invoiced to Novus and treated by Novus as a deducted cost in the
computation of Net Sales Revenue.
(h) Disclose to Novus, information in Alcide's possession pertaining to
other applications for anti-microbial disinfection in the food processing
industry, (including by way of example and not limitation, health, nutrition,
rendering, processing, or sale in live, food, animal, vegetable, food by
product, egg or other form) up to the point at which a xxxxxxxxx operation or
processor places its product in commercial distribution, with the intent to
reach and execute agreements for joint funding of development and distribution
of such products, under terms similar to those contained in this Agreement.
Novus shall have the right of first negotiation, for a period of ninety (90)
days from the date Novus receives written notice and complete description of an
application, on arrangements for manufacturing, marketing, sale and/or
distribution of such products and related technology, and thereafter, for a
period of nine (9) months, the right to meet any other more attractive (to
Xxxxxx) proposal with respect to these arrangements with a third party.
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(i) Own the name(s) used for the Products, provided Xxxxxx has paid Novus
for any trademark registration and maintenance out of pocket costs and the like
incurred by Novus. Xxxxxx shall pay all out of pocket costs associated with
maintaining such trademark registration status.
(j) Be entitled to have an independent certified public accounting firm
examine relevant business records of Novus and its subsidiaries, no more often
than once each calendar year, for purposes of determining and reporting to
Xxxxxx, whether the payments made by Novus to Xxxxxx during the period the audit
covers were substantially correct and in conformance with the terms of this
Agreement. The audit may, at Alcide's discretion, cover a period up to the
lesser of (i) the preceding thirty-six (36) months, or (ii) the time since the
end of the last period covered by an audit pursuant to this subparagraph. Such
firm shall enter into a confidentiality agreement with Novus in form and
substance approved by Novus.
(k) EXCEPT AS SET FORTH IN THIS AGREEMENT, XXXXXX MAKES NO OTHER
WARRANTIES OR REPRESENTATIONS WITH RESPECT TO PRODUCTS SOLD BY XXXXXX TO NOVUS
HEREUNDER, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE.
3. RIGHTS AND OBLIGATIONS OF NOVUS Subject to, and in addition to, the other
terms and conditions of this Agreement, Novus shall, at its cost and expense
(except as otherwise specified):
(a) Make to Xxxxxx the payments specified herein, with Interest on overdue
balances.
(b) Direct and control, in its sole discretion, all aspects of and
activities related to (except for matters directly related to efficacy or safety
of the Products, regulatory approvals or the Xxxxxx Patents, all of which shall
remain Alcide's responsibility) the marketing, selling and distributing of
Products, but only in the Field (except as may be otherwise authorized by
Xxxxxx). Without limiting the generality of the foregoing, Novus shall accept
title to Materials transferring from Xxxxxx to Novus FOB suppliers' distribution
points with no warranties or representations by Xxxxxx other than pass through
of the suppliers' warranties and representations, arrange for the construction
and installation of application systems, conduct as it may deem appropriate
advertising and other marketing and sales efforts, which may include customer
calls, solicitation of orders, establishing prices and sales terms, and
distribution and/or delivery (and, as appropriate, inventory management) for
Products and application systems. The parties acknowledge that Novus may engage
other entities to perform any of the aforementioned activities.
(c) As it deems appropriate, market Products on a "Turnkey Sales" basis,
meaning that the customer will pay a single fee for Products including, as
appropriate, application systems, storage tanks, level sensing and telemetry
systems, the Product itself, technical services and training of customer
personnel. Any significant deviation from the Turnkey Sales approach will
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be communicated to Xxxxxx and may be cause for adjustment to Total Cost (as
defined in Exhibit A).
(d) In markets presently not covered by an issued or pending Xxxxxx
Patent, if a competitor enters the market with an acidified sodium chlorite
product Novus shall be entitled to a marketing and sales commission of fifteen
percent (15%) of Net Sales Revenue, to be deducted from Net Sales Revenue for
purposes of calculation of Product Sales Compensation (as hereafter defined).
(e) Assist Xxxxxx in its efforts to secure (under 2(b)) USDA Approval.
(f) Diligently pursue management of the design, procurement and
installation of application systems for final delivery of Products onto the
items to be treated.
(g) Cooperate and jointly agree with Xxxxxx to explore and work together on
development of new applications and variations of the Products in the Field,
with such applications and variations to be covered by and within this
Agreement, with the costs of such efforts actually paid to an entity other than
Xxxxxx or Novus treated as a deducted cost in the computation of Net Sales
Revenue.
(h) Cooperate with Xxxxxx in obtaining regulatory approvals outside the
United States, with the costs of such efforts actually paid to an entity other
than Xxxxxx or Novus treated as a deducted cost in the computation of Net Sales
Revenue.
(i) Comply with all applicable foreign, US and state regulations regarding
sales, transportation, and distribution of Products covered by this Agreement.
(j) Select names and as it deems appropriate establish, use, and register
trademarks for its use in the sale and marketing of the Products. Novus may in
its discretion use, subject to any reasonable written restrictions from Xxxxxx
regarding such use, Alcide's Optima Trademark. If Novus elects to use a name
other than Optima, it will assign ownership to Xxxxxx upon reimbursement by
Xxxxxx of out of pocket costs associated with the registration, maintenance and
the like of that name. A separate assignment agreement shall be executed in
each case defining the duties of the user of any such trademark.
(k) Recognize Xxxxxx as the owner of the Xxxxxx Patents as appropriate in
literature Novus may publish about the Products.
(l) Procure and maintain product liability insurance covering the
activities related to the Products contemplated hereunder, which shall name both
Xxxxxx and Novus as insureds. Xxxxxx shall reimburse Novus for one half of the
premiums for such insurance.
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"Confidential Treatment Requested. The
redacted material has been separately filed
with the Commission."
(m) Be entitled to have an independent certified public accounting firm
examine relevant business records of Xxxxxx and its subsidiaries, no more often
than once each calendar year, for purposes of determining and reporting to
Novus, whether any costs incurred by Xxxxxx and invoiced to Novus during the
period the audit covers were substantially correct and in conformance with the
terms of this Agreement. The audit may, at Novus' discretion, cover a period up
to the lesser of (i) the preceding thirty-six (36) months, or (ii) the time
since the end of the last period covered by an audit pursuant to this
subparagraph. Such firm shall enter into a confidentiality agreement with Xxxxxx
in form and substance approved by Xxxxxx.
4. PAYMENTS TO XXXXXX Novus shall make the following payments to Xxxxxx:
(a) Novus shall pay Xxxxxx an amount of One Million Dollars ($1,000,000)
on or before May 31, 1997, for all equipment and Products provided to Novus
prior to that date for purposes of conducting field trials. Such Products and
equipment are expected to be consumed in the trial process and will not be
considered as Novus inventory under paragraph 5(b). This payment is not
refundable under any circumstances except as stated in paragraph 4(d) below.
(b) Commencing on August 31, 1997, and at the end of each of the following
three fiscal quarters (being November 30, 1997, February 28, 1998, and May 31,
1998), Novus shall pay Xxxxxx the greater of (i) Five Hundred Thousand Dollars
($500,000) plus the actual costs paid by Xxxxxx for Materials purchased by
Xxxxxx during the fiscal quarter, or (ii) the total Product Sales Compensation
due Xxxxxx for that quarter. Thereafter, at the end of each fiscal quarter,
Novus shall pay Xxxxxx the greater of (i) One Million Dollars ($1,000,000) plus
the actual costs paid by Xxxxxx for Materials purchased by Xxxxxx during the
fiscal quarter, or (ii) the total Product Sales Compensation due Xxxxxx for
that quarter. Novus shall not have any further obligations to make payments to
Xxxxxx (other than for Product Sales Compensation thereafter actually due), once
the total of all Novus payments to Xxxxxx has reached Fifty Million Dollars
($50,000,000).
(c) [*]
(d) The amounts paid in 4(a) and 4(b) shall be credited against Product
Sales Compensation which may thereafter be due Xxxxxx as follows: for any
fiscal quarter when the Product Sales Compensation due Xxxxxx exceeds One
Million Dollars ($1,000,000), any remaining credit balance or Interest (from the
previous sentence) which may be credited against Product Sales Compensation
shall be applied in lieu of payment for up to one half (1/2) of such excess.
This practice shall be continued until such credit balance is exhausted. The
above notwithstanding, no interest will be charged or accrued on payments made
to Xxxxxx prior to
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June 1, 1998. In calculating future Interest payments, amounts paid to Xxxxxx
prior to June 1, 1998 shall be considered the first amounts credited against
Product Sales Compensation.
(e) The procedure for making the aforementioned payments to Xxxxxx shall
be as follows:
(1) within twenty (20) days after the end of a fiscal quarter, Novus
shall provide Xxxxxx a report for that quarter of the Net Sales Revenue, the
number of Broiler Equivalents (as defined in Exhibit A), any insurance premiums,
and any development and regulatory costs (all per 4(c)) according to Novus'
business records;
(2) Xxxxxx shall thereafter invoice Novus for the Product Sales
Compensation due; and
(3) Novus shall pay such invoice within ten (10) days of receipt.
5. TERM
(a) The term ("Term") of this Agreement shall begin on the date the
Agreement is effective pursuant to its opening paragraph ("Effective Date") and
shall continue for an initial term until the later of (i) the fifteenth
anniversary of the Effective Date or (ii) the expiration date of the last to
expire Xxxxxx Patent, and shall continue thereafter, subject to the right of
either party, at the end of the initial term and any time thereafter to
terminate the Agreement, with or without cause, upon twenty four (24) months
prior written notice to the other party. Furthermore, Novus may, in its
discretion, terminate this Agreement at any time, upon not less than three
months notice and by paying Xxxxxx all payments due during that period, given
further that Novus may not terminate before May 31, 1998. Furthermore, this
Agreement may be terminated by either party, based upon the material breach of
this Agreement by the other party, upon sixty (60) days notice of such breach
and intent to terminate by the non breaching party to the breaching party,
provided such breach is not substantially remedied or cured within the notice
period.
(b) Upon termination of this Agreement at any time, for any or no reason,
Xxxxxx shall have the option to purchase all of Novus' inventory of Products and
application systems, wherever located (at customer sites, in storage or
elsewhere), as is, where is and with no warranties or representations by Novus
other than warranty of title as appropriate, by payment to Novus of the Novus
calculated value of such inventory (based on cost depreciated over a five (5)
year life for application systems (not to exceed eighty percent (80%) of the
original cost for installed systems), and actual cost for Products based on the
most recent Materials purchased). Provided Xxxxxx makes such payment to Novus
for such inventory purchased, and if termination occurs after USDA Approval,
Novus and its subsidiaries agree for a period of three (3) years after
termination not to sell in the Field acidified sodium chlorite products that
directly compete
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with or displace Products in development under this Agreement or Products sold
by Novus hereunder within one (1) year prior to termination.
6. INDEMNITY
(a) To the extent not covered by and paid under the product liability
insurance procured pursuant to 3(l), Novus shall indemnify, defend and hold
harmless Xxxxxx, and its directors, officers and employees, from and against any
and all losses, liabilities, damages, costs and expenses from law suits or any
other claims from third parties of any nature whatsoever to the extent directly
related to (i) the mechanical safety and integrity of application systems
provided by Novus, to the extent such loss or damage arises prior to such time
as any application system at issue may be purchased by Xxxxxx, or (ii) the
handling, storage, or delivery of Products by Novus. The foregoing indemnity
obligations shall apply except to the extent directly related to the negligence
or intentionally wrongful act or omission of Xxxxxx, its affiliates or
contractors.
(b) To the extent not covered by and paid under the product liability
insurance procured pursuant to 3(l), Xxxxxx shall indemnify, defend and hold
harmless Novus, and its directors, officers and employees from and against any
and all losses, liabilities, damages, costs and expenses from law suits or any
other claims from third parties of any nature whatsoever, to the extent directly
related to (i) the safety, suitability, efficacy, or regulatory compliance of
the Products, or (ii) infringement or interference with any intellectual or
other property rights of others as the same may relate to US Patents 5,389,390;
5,185,161; and the continuations, divisions, counterparts, reexaminations,
reissue, and foreign equivalents of these patents, or (iii) arising from use or
existence of any application system, to the extent such loss or damage arises
after such time as the application system at issue has been purchased by Xxxxxx.
The foregoing indemnity obligations shall apply except to the extent directly
related to the negligence or intentionally wrongful act or omission of Novus,
its affiliates or contractors/subdistributors.
(c) In the event either party receives or becomes aware of a claim for
which it is entitled to indemnification under 6(a) or (b) above, it shall
promptly inform the other party of the claim, permit the other party to assume
direction and control of the defense of the claim and, at its expense, cooperate
as reasonably requested in the defense of the claim.
7. DAMAGES Neither party shall be obligated or liable to the other under this
Agreement, including by way of example, and not limitation, for breach or
termination hereof, for loss of use, loss of profits, business interruption or
other consequential, indirect, special, incidental or punitive damages incurred
by the other party, however, the same may be caused.
8. CONFIDENTIALITY. The terms and conditions of the Confidential Disclosure
Agreement between the parties dated October 23, 1996, a copy of which appears as
Exhibit B hereto, are hereby incorporated herein by reference, with the
modification that notwithstanding paragraph 3 thereof, the period for
disclosures shall extend throughout the Term of this agreement.
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9. MISCELLANEOUS
(a) NOTICES Any notice, report or other document required or permitted to
be given under this Agreement shall be in writing and shall be deemed to have
been sufficiently given if delivered in person, transmitted by facsimile with
receipt verified, or mailed, postage prepaid, by first class, certified or
registered mail, return receipt requested, addressed as follows:
If to Novus,
addressed to: Novus International, Inc.
000 Xxxxxxxxx Xxxxxx Xxxxx
Xx. Xxxxx, XX 00000
Attention: General Counsel
Facsimile No.: (000) 000-0000
If to Xxxxxx,
addressed to: Xxxxxx Corporation
0000 000xx Xxxxxx XX
Xxxxxxx, XX 00000
Attention: President
Facsimile No.: (000) 000-0000
or to such other address or addresses as may be specified from time to time in a
written notice given by such other party. The parties shall acknowledge in
writing the receipt of any such notice given in person, and any such notice
given by facsimile or by mail shall be effective when received.
(b) SUCCESSORS AND ASSIGNS Except when directly occurring as a part of
the sale of substantially all of the assets or shares of either party, this
Agreement may not be assigned by either party without the written consent of the
other party, such consent not to be unreasonably delayed or withheld. Subject
to the foregoing, this Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns. In the event
of a change in control of Xxxxxx, Novus shall continue to enjoy its benefits
hereunder, and in addition, for a period of one (1) year after such change in
control, shall have the right, but not the obligation, to assume, for the
remainder of the Term, full grant of authority, right, responsibility and
control over and for patent, and/or regulatory costs and matters hereunder (with
the reasonable and verifiable costs and expenses related to such new Novus
activities treated as a deducted cost in the computation of Net Sales Revenue).
In the event of a change in control of Novus, Xxxxxx may terminate this
Agreement upon two (2) years prior written notice to Novus, provided such notice
is given to Novus within one (1) year after such change in control. As used in
this paragraph, "change in control" shall mean the ownership of more than fifty
-one percent (51%) of the voting stock of the party by a single entity that does
not own at least five percent (5%) of the voting stock of the party on the
Effective Date.
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(c) INDEPENDENT CONTRACTOR Novus is and shall always remain an
independent contractor in its performance of the Agreement. The provisions of
this Agreement shall not be construed as authorizing or providing either party
any right to exercise any control or direction over the operations, activities,
officers, employees, or agents of the other party in connection with this
Agreement, it being understood and agreed that the entire control and direction
of such operations, activities, officers, employees, or agents shall remain with
such party.
(d) DISPUTES/GOVERNING LAW AND JURISDICTION The parties agree so far as
possible to use every reasonable effort to settle any dispute or disagreement
between them relative to this Agreement by amicable means and not to resort to
legal action unless and until the parties have in good faith attempted to settle
such disputes or disagreement in the foregoing manner. The validity,
interpretation and performance of the Agreement shall be governed by and
construed in accordance with the laws of the State of Illinois, USA, not
including any of such state's choice of law rules. Any controversy or claim
arising out of, or relating to the Agreement, or any breach thereof shall be
exclusively settled by the courts and authorities within the State of Illinois,
to whose exclusive jurisdiction the parties hereby submit; the parties consent
and agree irrevocably to any venue within the geographic limits of Xxxx County,
Illinois, hereby waiving any other venue to which they might be entitled by
virtue of domicile or otherwise.
(e) OFFSET Either party shall have the right to offset under this
Agreement, meaning that either may deduct from amounts to be paid to the other
party, any sums such other party may owe the offsetting party under this
Agreement.
(f) COMPLETE AGREEMENT This Agreement constitutes the full understanding
of the parties, a complete allocation of risks between them and a complete and
exclusive statement of the terms and conditions of their agreement relating to
the subject matter hereof and (except as they may be expressly incorporated
herein), supersedes any and all prior agreements, negotiations, dealings and
understandings, whether written or oral, that may exist between the parties
relative thereto. Without limiting the generality of the foregoing, this
Agreement supersedes that certain Heads of Agreement between the parties dated
February 4, 1997.
(g) HEADINGS Headings as to the contents of particular paragraphs are for
convenience only and are in no way to be construed as part of this Agreement nor
as a limitation of the scope of the particular paragraphs to which they refer.
(h) All terms and provisions of this Agreement are severable, and any term
or provision of this Agreement or any application thereof which may be
prohibited or unenforceable by law shall be ineffective to the extent of such
prohibition or enforceability without affecting the remainder of this Agreement
or any other application of such term or provision.
IN WITNESS WHEREOF, the parties hereto through their respective authorized
representatives have executed this Agreement, effective as of the day and year
first written above.
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XXXXXX CORPORATION NOVUS INTERNATIONAL, INC.
By: ______________________________ By:___________________________
Title:_____________________________ Title:_________________________
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"Confidential Treatment Requested. The
redacted material has been separately filed
with the Commission."
EXHIBIT A
CERTAIN DEFINED TERMS
PRODUCT(S) shall mean any acidified sodium chlorite composition and/or any
antimicrobial treatment, the use of which, in the Field, regardless of the
location where such use or sale actually occurs, would infringe any Xxxxxx
Patent if such use or sale would occur in any jurisdiction where any such patent
was issued or applies.
FIELD shall mean all commercial, private, or other activity in or directly
related to poultry, including by way of example and not limitation, health,
nutrition, rendering, processing, or sale in live, food, byproduct, egg or other
form, up to the point at which a xxxxxxxxx operation or processor places its
product in commercial distribution.
INTEREST shall mean [*]
NOVUS COSTS is [*]
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EXHIBIT B
CONFIDENTIAL DISCLOSURE AGREEMENT
Novus International, Inc., a Delaware corporation having its principal offices
at 000 Xxxxxxxxx Xxxxxx Xxxxx, Xx. Xxxxx, Xxxxxxxx 00000 ("Novus") and Xxxxxx
Corporation, a Delaware corporation, having its principal offices at 0000 000xx
Xxxxxx XX, Xxxxxxx, Xxxxxxxxxx 00000 ("Xxxxxx"), are mutually interested in
engaging in the confidential exchange of certain information for the limited
purpose of determining a mutual interest in Novus' distribution of a poultry
carcass disinfecting system and associated chemicals on behalf of Xxxxxx. Novus
and Xxxxxx hereby enter into this Agreement on the terms and conditions under
which such information shall be disclosed by either party ("Disclosing Party")
to the other party ("Receiving Party"), as follows:
1. Neither party shall disclose to a third party or use for any purpose other
than that stated above (and then only for the benefit of Disclosing Party) any
and all Confidential Information received from the other party without the
Disclosing Party's prior written permission.
a. Confidential Information of Novus means all information disclosed,
either before or after execution of this Agreement, about Novus plans,
markets, marketing strategy, business, finances, financial
arrangements, profits, programs, plants, practices, processes,
products, costs, know-how, technology, research, areas of interest,
equipment, operations, raw materials, customers, trade secrets or any
other confidential or proprietary information, including any similar
information of third parties that Novus has either received or may
receive, and including any organic or inorganic matter, material,
equipment or system which is provided, exposed or disclosed by or
on behalf of Novus.
b. Confidential Information of Xxxxxx means all information disclosed,
either before or after execution of this Agreement, about Company's
plans, markets, marketing strategy, business, finances, financial
arrangements, profits, programs, plants, practices, processes,
products, costs, know-how, technology, research, areas of interest,
equipment, operations, raw materials, customers, trade secrets or any
other confidential or proprietary information, including any similar
information of third parties that Xxxxxx has either received or may
receive, and including any organic or inorganic matter, material,
equipment or system which is provided, exposed or disclosed by or on
behalf of Xxxxxx, all of the foregoing directly related to both the
purpose stated above.
c. Confidential Information of either party shall be limited to writings
and physical materials which are in each case clearly market
confidential at the time of disclosure, and oral information only if
identified as confidential at the time of disclosure and further
memorialized by the Disclosing Party in writing clearly marked
confidential and delivered to the Receiving Party within thirty (30)
days of the original oral disclosure.
2. The Receiving Party shall disclose the other party's Confidential
Information only to those of its employees (including its employees,
officers, directors, representatives, subcontractors, and consultants)
necessary for the purpose stated above and shall ensure compliance by such
employees with the terms of this Agreement.
3. Confidential disclosures under this Agreement shall be completed within six
(6) months of the date of Novus' signature below. The parties shall amend
this Agreement in writing if they wish to extend the time for confidential
disclosure.
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4. The obligations of nonuse and nondisclosure, as herein set forth, shall
continue for five (5) years from the date of Novus' signature below, except
the obligations shall not apply to any Confidential Information which:
a. is or becomes known to the public through no fault of the Receiving
Party or its employees,
b. is already known to the Receiving Party prior to its receipt hereunder
as shown by the prior written records of the Receiving Party,
c. becomes known to the Receiving Party by disclosure from a third party
who has a lawful right to disclose the information,
d. is subsequently developed by the Receiving Party independently of the
information received from the Disclosing Party, or
e. is required to be disclosed by operation of law.
5. At the request of the Disclosing Party, the Receiving Party shall return to
the Disclosing Party all forms of Confidential Information, except that the
Receiving Party may have a single copy retained in the custody and control
of its legal counsel.
6. The Receiving Party agrees that nothing herein shall be construed as
granting any right or license, either expressed or implied, under patents or
trade secrets owned or controlled by the Disclosing Party.
7. At no time shall Receiving Party make any announcement, issue any press
release or make any statement to any third party, with respect to
discussions under this Agreement or which would indicate that a party
hereto has inspected the Confidential Information of the Disclosing Party.
8. The Receiving Party's obligations hereunder shall extend with equal force
and effect to similar information of the Disclosing Party's subsidiary,
affiliated and associated companies and business entities.
9. Neither party shall have any obligation to continue any discussions or
negotiation to reach, execute or deliver any agreement, to refrain from
engaging in any business whatsoever, or to refrain from engaging in any
discussion, negotiation, or agreement at anytime with any other party.
10. This Agreement is to be interpreted in accordance with the laws of the
State of Missouri.
11. This is the entire Agreement between the parties regarding the above
subject matter.
This Agreement is hereby executed by authorized representatives of Novus and
Xxxxxx.
NOVUS INTERNATIONAL, INC. XXXXXX CORPORATION
By: __________________________ By: __________________________
Title: __________________________ Title:__________________________
Date: __________________________ Date:__________________________
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