R&D AGREEMENT
R&D
AGREEMENT
THIS
R&D AGREEMENT
(this
“Agreement”),
dated
as of October 26, 2006 (the “Agreement
Date”),
by
and among DYADIC INTERNATIONAL (USA), INC., a Florida corporation
with
headquarters located at 000 Xxxxxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxx 00000 (the “Dyadic”),
and
ABENGOA BIOENERGY R&D, INC., a Missouri corporation with headquarters
located at 0000 Xxxxxxxx Xxxxx Xxxx, Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxxx
(“ABRD”).
Dyadic
and ABRD are sometimes collectively referred to as the “Parties”
and
individually as a “Party.”
Certain capitalized terms used herein have the meanings assigned them in Article
I hereof.
RECITALS:
A. ABRD
has
developed and continues to develop technologies (i) pertaining to the conversion
of pre-treated biomass using a proprietary technology owned by ABRD into
compositions containing fermentable sugars and co-products (each a “Substrate”)
and
(ii) in the field of cellulosic ethanol production via enzymatic hydrolysis
(collectively, “ABRD
Background Technology”).
Employing the ABRD Background Technology, ABRD has developed the Substrates
with
a commercial goal of improving their consistency independent of the identity
of
the biomass.
B. Dyadic
has developed and continues to develop patented
and other proprietary technologies pertaining to genes, gene expression, protein
purification, protein characterization, enzymology, protein engineering,
molecular evolution, high throughput screening, strain improvement, strain
optimization and associated refinement, development, processing and
manufacturing technologies (collectively, the “Dyadic
Core Technologies”).
C. Dyadic
is
engaged in various research and development activities based on these Dyadic
Core Technologies in the field of ethanol production, including but not limited
to the development of (i) enzyme compositions (“Enzyme
Mixtures”),
(ii)
related Enzyme Mixture treatment processes for the conversion of various
untreated and/or pre-treated Substrates into fermentable sugars (for each Enzyme
Mixture, an applicable “Processing
Technology”),
and
(iii) related Enzyme manufacturing processes for the production of those Enzyme
Mixtures (for each Enzyme Mixture, an applicable “Manufacturing
Technology”),
as to
each, for the production of ethanol (collectively, the “CE
R&D Activities”).
D. Dyadic
intends to conduct a series of related and unrelated research and development
programs of its own, and/or in collaboration with Third Parties (each a
“Collaboration
Partner”)
principally, various energy/fuel companies and/or vendors to the energy/fuel
industry (each an “R&D
Program”).
In
connection with each R&D Program, Dyadic will be performing Foundational
R&D which may have application to all or most of the R&D Programs, and
may also perform Applications R&D for the specific Collaboration Partner
with whom or for whom Dyadic is conducting that R&D Program for or in
collaboration with. Dyadic intends to conduct each of its R&D Programs in a
manner in which all Foundational R&D will be applied by Dyadic, as it deems
necessary or appropriate, to all or any of the R&D Programs, such that for
purposes of Dyadic’s dealings with its Collaboration Partners and other Third
Parties, Dyadic shall be deemed to be conducting, in addition to a specific
R&D Program in collaboration with or for that Collaboration Partner, a
discrete master R&D program for the performance of Foundational R&D for
the benefit of itself and, to the extents same is incorporated by Dyadic into
products or services licensed, sold or distributed by Dyadic, for its licensees
and customers (the “Master
R&D Program”).
E. ABRD
desires to (i) support the development of Foundational R&D and improved
Enzyme Mixtures, their related Processing Technologies and their related
Manufacturing Technologies, (ii) license and scale-up the use of such Enzyme
Mixtures and Manufacturing Technologies, and (iii) demonstrate the value of
such
Enzyme Mixtures, their related Processing Technologies and their related
Manufacturing Technologies, when used in pilot-scale and commercial-scale
biomass hydrolysis processes using ABRD Background Technology.
F. The
Parties understand that the field of cellulosic ethanol is in its early stages,
and that a very substantial volume of Foundational R&D will be required to
be completed before meaningful Applications R&D can reasonably be expected
to yield commercial-scale Enzyme Mixtures and related Processing Technologies
and Manufacturing Technologies.
G. Concurrently
with the execution and delivery of this Agreement, Dyadic’s parent, Dyadic
International, Inc., a Delaware corporation (“Dyadic-Parent”)
and
ABRD are executing and delivering to each other that certain Securities Purchase
Agreement (the “SPA”),
pursuant to which ABRD is making a strategic investment in Dyadic-Parent to
enable Dyadic, in concert with ABRD and other Collaboration Partners, to fund
Dyadic’s CE R&D Activities. Dyadic expressly acknowledges and agrees that
pursuant to the provisions of Section 4.6 of the SPA, Dyadic-Parent has jointly
and severally guaranteed each of Dyadic’s obligations to ABRD created by the
terms and provisions of this Agreement.
H. ABRD
now
desires to engage Dyadic to develop for ABRD one or more Enzyme Mixtures, their
related Processing Technologies and their related Manufacturing Technologies,
for Substrates approved by the Steering Committee that ABRD will, within a
reasonable period of time following the Closing Date, deliver to Dyadic (each
an
“Applicable
Substrate”)
for
the purposes of having Dyadic develop and demonstrate a cost-effective Enzyme
Mixture for each Applicable Substrate (as to each Applicable Substrate, its
applicable “Custom
Enzyme Mixture”),
a
cost-effective Processing Technology for the processing of each such Custom
Enzyme Mixture (as to each Applicable Substrate, its related “Custom
Processing Technology”)
and a
cost-effective Manufacturing Technology for the production of each such Custom
Enzyme Mixture (as to each Applicable Substrate, its related “Custom
Manufacturing Technology”)
ready
for scale-up to commercial application in ABRD Background Technology, within
three (3) years following the Steering Committee’s approval of the applicable
Statements of Work in respect of those Applicable Substrates (the “ABRD
R&D Objective”),
and
to perform such Foundational R&D as Dyadic determines to be necessary or
appropriate to facilitate the achievement of the ABRD R&D
Objective.
I. The
Parties further wish to provide for Dyadic’s grant of an option to ABRD to
license the Custom Enzyme Mixture, Custom Processing Technology and the Custom
Manufacturing Technology for each Applicable Substrate from Dyadic on a
non-exclusive basis, with the express understanding that Dyadic shall have
the
right to sell each Custom Enzyme Mixture, any related Processing Technology
Dyadic may develop for such Custom Enzyme Mixture and the Custom Manufacturing
Technology, or to license any or all of same, to any other Dyadic Collaboration
Partner, or to any other Third Party, subject to the terms of this
Agreement.
AGREEMENT:
NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement,
and the foregoing Recitals, which are incorporated herein and by this reference
made a part hereof, and for other good and valuable consideration the receipt
and adequacy of which are hereby mutually acknowledged by Dyadic and ABRD,
they
hereby agree as follows:
ARTICLE
I
DEFINITIONS
“AAA”
has
the
meaning set forth in Section 10.1 hereof.
“ABRD
Background Technology”
has
the
meaning set forth in Recital A hereof.
“ABRD
Facility”
means
any ethanol manufacturing facility owned or operated by ABRD or any Affiliate
of
ABRD.
“ABRD
R&D Objective”
has
the
meaning assigned that term in Recital H hereof.
“ABRD
R&D Program”
has
the
meaning set forth in Section 2.2 hereof.
“Action”
has
the
meaning set forth in Section 8.1 hereof.
“Affiliate,”
with
respect to a Person, means any other Person controlling, controlled by or under
common control with, such first Person.
“Annual
R&D Spend Certificate”
has
the
meaning set forth in Section 2.1 hereof.
“Applicable
New Technology”
has
the
meaning set forth in Section 4.4 hereof.
“Applicable
Patent”
has
the
meaning set forth in Section 5.2(b) hereof.
“Applicable
R&D Spend”
has
the
meaning set forth in Section 2.1 hereof.
“Applicable
Royalty Rate”
has
the
meaning set forth in Section 5.2(b) hereof.
“Applicable
Substrate”
has
the
meaning assigned that term in Recital H hereof.
“Applications
R&D”
means
CE R&D Activities in which technology, whether Dyadic Core Technology,
Dyadic Improvements, Dyadic New Technology or Jointly Developed Technology,
are
used or applied on a specific Substrate or untreated biomass for any customer
or
Collaboration Partner of Dyadic. As an example, by way of illustration: (i)
ABRD
is a Collaboration Partner; (ii) Dyadic may purify and characterize such number
of different enzymes as it determines to be worth characterizing, which
activities shall constitute Foundational R&D; (iii) when Dyadic engages in
testing these different enzymes on the Applicable Substrate, those CE R&D
Activities will constitute Applications R&D.
“Best
Efforts”
means
the efforts that a prudent Person desirous of achieving a result would use
in
similar circumstances to ensure that such result is achieved as expeditiously
as
practical; provided,
however,
that an
obligation to use Best Efforts under this Agreement does not require the Company
to dispose of or make any change to its business, expend any material funds
or
incur any other material burden (except to spend the Applicable R&D Spend,
as contemplated by Section 2.1 hereof).
“CE
R&D Activities”
has
the
meaning assigned that term in Recital C hereof.
“Closing
Date”
has
the
meaning assigned that term in the SPA.
“Collaboration
Partner”
has
the
meaning assigned that term in Recital D hereof.
“Commercial
Rules”
has
the
meaning set forth in Section 10.1 hereof.
“Complex
Procedures”
has
the
meaning set forth in Section 10.1 hereof.
“Confidential
Information”
has
the
meaning set forth in Section 6.1 hereof.
“Custom
Enzyme Mixture”
has
the
meaning assigned that term in Recital H hereof.
“Custom
Manufacturing Technology”
has
the
meaning assigned that term in Recital H hereof.
“Custom
Processing Technology”
has
the
meaning assigned that term in Recital H hereof.
“Demand”
has
the
meaning set forth in Section 10.1 hereof.
“Disclosing
Party”
has
the
meaning set forth in Section 6.1 hereof.
“Dispute”
has
the
meaning set forth in Section 10.1 hereof.
“Dyadic
Core Technologies”
has
the
meaning assigned that term in Recital B hereof.
“Dyadic-Parent”
has
the
meaning assigned that term in Recital G hereof.
“Dyadic
Improvements”
has
the
meaning set forth in Section 4.1 hereof.
“Dyadic
Technology”
has
the
meaning assigned that term in Section 4.1 hereof.
“Enzyme
Mixtures”
has
the
meaning assigned that term in Recital C hereof.
“Foundational
R&D”
means
all technology developed by Dyadic in connection with its conduct of its CE
R&D Activities, whether related to Dyadic Core Technology, Dyadic
Improvements or New Technologies, excluding technology developed in connection
with the conduct of Applications R&D. As an example by way of illustration:
(i) ABRD is a Collaboration Partner; (ii) Dyadic may purify and characterize
such number of different enzymes as it determines to be worth characterizing,
which activities shall constitute Foundational R&D; (iii) when Dyadic
engages in testing these different enzymes on the Applicable Substrate, those
CE
R&D Activities will constitute Applications R&D.
“FTE’s”
has
the
meaning set forth in Section 2.2 hereof.
“Governmental
Official”
has
the
meaning set forth in Section 12.3 hereof.
“Indemnified
Party”
has
the
meaning set forth in Section 4.5 and Section 8.1 hereof, as
applicable.
“Indemnifying
Party”
has
the
meaning set forth in Section 4.5 and Section 8.1 hereof, as
applicable.
“Interchangeable
Foundational R&D”
has
the
meaning set forth in Section 2.6(b) hereof.
“Inspection”
has
the
meaning set forth in Section 12.5 hereof.
“Jointly
Developed Technology”
has
the
meaning set forth in Section 4.3 hereof.
“License”
has
the
meaning set forth in Section 5.1 hereof.
“Licensed
ABRD Facility”
has
the
meaning set forth in Section 5.1 hereof.
“Licensed
Enzyme Mixture”
has
the
meaning set forth in Section 5.1(c) hereof.
“License
Fee”
has
the
meaning set forth in Section 5.2(a) hereof.
“Licensed
Manufacturing Technology”
has
the
meaning set forth in Section 5.1 hereof.
“Licensed
Processing Technology”
has
the
meaning assigned that term in Section 5.1 hereof.
“Manufacturing
Technology”
has
the
meaning assigned that term in Recital C hereof.
“Master
R&D Program”
has
the
meaning assigned that term in Recital D hereof.
“New
Technology(ies)”
means
all Dyadic Technology which is derived from either the Master R&D Program or
the ABRD R&D Program.
“New
Applications Technology”
means
all technology which is developed by Dyadic (whether exclusively by Dyadic
or
whether jointly with ABRD) out of Applications R&D performed in connection
with the ABRD R&D Program.
“Option
Period”
has
the
meaning set forth in Section 5.1(a).
“Other
R&D Program”
has
the
meaning set forth in Section 2.6(a) hereof.
“Person”
means
a
natural person, a corporation, a partnership, a trust, a joint venture, any
governmental authority or any other entity or organization.
“Processing
Technology”
has
the
meaning assigned that term in Recital C hereof.
“Program
Completion Date”
has
the
meaning set forth in Section 9.1.
“Qualified
Manufacturing Sublicense”
has
the
meaning set forth in Section 5.1(c) hereof.
“R&D
Plan”
has
the
meaning set forth in Section 2.2 hereof.
“R&D
Program”
has
the
meaning set forth in Recital D hereof.
“R&D
Spend Measurement Period”
has
the
meaning set forth in Section 2.1 hereof.
“Receiving
Party”
has
the
meaning set forth in Section 6.1 hereof.
“Royalty”
has
the
meaning set forth in Section 5.2(b).
“SPA”
has
the
meaning assigned that term in Recital G hereof.
“Statement
of Work”
has
the
meaning set forth in Section 2.2 hereof.
“Steering
Committee”
has
the
meaning set forth in Section 3.1 hereof.
“Substrate”
has
the
meaning set forth in Recital A hereof.
“Steering
Committee”
has
the
meaning set forth in Section 3.1 hereof.
“Technology
Transfer Fees”
has
the
meaning set forth in Section 5.2(c) hereof.
“Term”
has
the
meaning set forth in Section 9.1 hereof.
“Third
Party”
means
any Person that is not a Party (or an Affiliate of a Party) to this Agreement,
including without limitation other Collaboration Partners.
ARTICLE
II
ABRD
R&D PROGRAM
2.1 Commitment
of Dyadic to Engage in CE R&D Activities.
Dyadic
covenants to ABRD that over the three (3) year period commencing with the date
of the Steering Committee’s approval of the first annual Statement of Work (the
“R&D
Spend Measurement Period”)
Dyadic
will spend not less than $10,000,000 on the conduct of CE R&D Activities
approved by the Steering Committee (the “Applicable
R&D Spend”),
whether related to Dyadic’s performance of its obligations under this Agreement
(both Foundational R&D and Applications R&D), or its performance of
Foundational R&D (but not Applications R&D) for its own account or
Foundational R&D for the benefit of itself and any other Third Parties (but
not Applications R&D), including but not limited to, by way of illustration,
and not in limitation: (i) the employment of scientific and non-scientific
personnel to perform such activities; (ii) the engagement of consultants and
other independent contractors to perform such activities for Dyadic’s benefit in
whole or in part; (iii) the in-licensing of relevant technologies; and (iv)
the
purchase or lease of necessary equipment, materials and supplies for use in
connection therewith, provided
that
in
calculating the amount of Dyadic’s Applicable R&D Spend, each full-time
equivalent scientist employed by Dyadic in the conduct of CE R&D Activities,
Dyadic shall be deemed to have incurred $**** of Applicable R&D Spend for
each year during the R&D Spend Measurement Period in which such scientist is
so employed, pro-rated for any partial year (treating any independent contractor
as an employee for purposes of the foregoing proviso), further
provided that
any
Applicable R&D Spend made by Dyadic on or after the Agreement Date, up to a
maximum of $****, shall be treated as if it were expended during the R&D
Spend Measurement Period. Within one hundred twenty (120) days following the
close of each calendar year beginning or ending within the R&D Spend
Measurement Period, Dyadic-Parent Chief Financial Officer shall furnish ABRD
with a detailed written report (the “Annual
R&D Spend Certificate”)
certifying the amount of the Applicable R&D Spend made by Dyadic in the year
then ended and the cumulative amount of the Applicable R&D Spend made by
Dyadic since the Closing Date, with a final Annual R&D Spend Certificate to
be to be furnished by Dyadic to ABRD within one hundred twenty (120) days of
the
Program Completion Date; provided that representatives of ABRD, upon reasonable
advance notice and at ABRD’s expense, shall have the right to have an
independent accounting firm review the books and records of Dyadic and
Dyadic-Parent upon the condition that such independent accounting firm execute
and deliver to Dyadic and Dyadic-Parent a confidentiality agreement in form
and
substance reasonably acceptable to Dyadic-Parent’s legal counsel, to verify the
accuracy of the calculations set forth in the CFO’s Annual R&D Spend
Certificate, further provided that if such examination shall disclose a more
than 5% negative variance between the amount of the Applicable R&D Spend for
the applicable year, Dyadic shall pay all of the expenses of such independent
accounting firm.
2.2 Scope
of ABRD R&D Program.
Dyadic
shall use its good faith Best Efforts to supply the necessary scientific staff,
materials, laboratories, offices and other facilities to perform the CE R&D
Activities described in the R&D Plan attached hereto as Exhibit A (the
“R&D
Plan”)
in
furtherance of the ABRD R&D Objective (the “ABRD
R&D Program”),
including without limitation the performance of the CE R&D Activities
contemplated by statements of work to be approved by the Steering Committee
for
CE R&D Activities to be engaged in for each calendar year falling within the
Term (each a “Statement
of Work”)
in
accordance with the provisions of Article III hereof, which shall identify
with
reasonable specificity: (i) the tasks
and
stages of
the
ABRD R&D Program to be completed, (ii) the cost associated therewith
denominated in number of full time equivalent scientific personnel
(“FTE’s”)
committed per year at the rate of $**** per FTE, and (iii) the applicable
achievement milestones reasonably expected to be attained with each task, stage
and phase. The Parties expressly agree that the R&D Plan necessarily
comprises both Foundational R&D and Applications R&D.
2.3 Funding
of ABRD R&D Program.
Dyadic
shall be solely responsible for all costs associated with funding its
performance of the ABRD R&D Program.
2.4 Commencement
of ABRD R&D Program.
Dyadic
shall commence performance of its CE R&D Activities in connection with the
ABRD R&D Program immediately following the execution and delivery of this
Agreement, and shall ramp-up those CE R&D Activities over the next twelve
(12) calendar months, as it reasonably determines, in consultation with ABRD
in
accordance with the R&D Plan.
2.5 No
Assurance of Commercial Success. Dyadic
covenants to ABRD that during the Term of this Agreement Dyadic will use its
good faith Best Efforts to achieve the ABRD R&D Objective. However,
ABRD
expressly acknowledges that due to the existing inchoate state of the Dyadic
Technology in the cellulosic ethanol field and the inherent risks associated
with the CE R&D Activities, Dyadic can not and does not assure ABRD that the
ABRD R&D Program will culminate in the successful achievement of the ABRD
R&D Objective, let alone any Custom Enzyme Mixture and related Custom
Manufacturing Technology that ABRD will have any commercial interest in
licensing. Accordingly, ABRD hereby expressly agrees except in the instance
of a
material breach by Dyadic of its obligations to ABRD hereunder, Dyadic shall
have no liability of any kind whatsoever to ABRD by reason of the failure of
the
ABRD R&D Program to successfully achieve the ABRD R&D Objective or to
produce any such Custom Enzyme Mixture and\or Custom Manufacturing Technology.
2.6 Dyadic
Entry into R&D and Other Agreements with Third Parties and Use of
Foundational R&D Not Performed in the ABRD R&D
Program.
(a) ABRD
expressly acknowledges that Dyadic is in no way whatsoever prohibited from
entering into research and development agreements or other forms of
collaboration or research and development agreements with Collaboration Partners
and other Third Parties of any kind whatsoever, whether such agreements pertain
to the Substrates derived from biomass of the kinds used by ABRD or not, or
otherwise conducting any other R&D Programs (each an “Other
R&D Program”),
provided
that
in no
event shall the terms of any such agreement with any other Person (i) impair
Dyadic’s ability to comply fully with the terms of this Agreement, including the
Dyadic’s obligation to grant to ABRD the commercial rights described in Article
V hereof and (ii) require or contemplate Dyadic to breach any obligations of
confidentiality to ABRD created by the provisions of Article VI
hereof.
(b) Further,
ABRD expressly acknowledges that Dyadic shall be free to use Foundational
R&D developed from Other R&D Programs to satisfy requirements for the
performance of such Foundational R&D for the ABRD R&D Program
(“Interchangeable
Foundational R&D”),
and
to have such Interchangeable Foundation R&D performed in conjunction with
one or more Other R&D Programs if Dyadic determines, in its commercially
reasonable discretion, that performance of that Interchangeable Foundational
R&D in any such Other R&D Program is cost-effective or otherwise
commercially desirable, and that doing so materially improves the prospects
for
achieving the ABRD R&D Objective; provided
that
(i) the
ABRD representatives to the Steering Committee shall first be furnished with
a
complete presentation of Dyadic plans in connection therewith which, from a
commercial reasonableness standard, demonstrates that the use of the
Interchangeable Foundational R&D from such Other R&D Program would not
materially diminish Dyadic’s R&D effort being applied to the development of
Custom Enzyme Mixtures, and related Custom Processing Technologies and Custom
Manufacturing Technologies, for ABRD and (ii) the use of such Interchangeable
Foundational R&D from any Other R&D Program will not materially impair
or limit ABRD in its enjoyment of its option to license the commercial rights
described in Article V, below.
(c) ABRD
expressly acknowledges and agrees that certain Foundational R&D to be
performed in the ABRD R&D Program may be performed by Dyadic in satisfaction
of Dyadic obligations to perform the same Foundational R&D for Third
Parties, whether pursuant to Other R&D Programs or not.
ARTICLE
III
STEERING
COMMITTEE
3.1 Formation
and Duration.
Within
ninety (90) days following the Agreement Date, the Parties shall establish
an
advisory board for the purposes set forth in Section 3.2 and with a composition
specified by Section 3.3 (the “Steering
Committee”).
Except to the extent otherwise provided by mutual written agreement of the
Parties, the Steering Committee shall not disband until the expiration of the
Term or the earlier termination of this Agreement.
3.2 Functions
of Steering Committee.
The
functions of the Steering Committee shall be: (i) to approve the first annual
Statement of Work submitted by Dyadic, which shall occur not more than one
hundred eighty (180) days following the Agreement Date, and thereafter approve
annual Statements of Work for each subsequent calendar year falling within
the
Term not less than thirty (30) days prior to the commencement of each such
calendar year, which Statements of Work shall reflect decisions of the Steering
Committee regarding research strategies, levels of effort (resources assigned)
for each task listed therein, and to prioritize activities; (ii) to determine
whether CE R&D Activities are Foundational R&D or Applications R&D;
(iii) to determine which ABRD Substrates should become Applicable Substrates
and
make adjustments or modifications to each Statement of Work, as necessary to
improve the prospects of achieving the ABRD R&D Objective; (iv) to monitor
Dyadic’s progress in achieving the performance benchmarks fixed in each
Statement of Work and provide overall guidance to Dyadic’s assigned researchers
with regard thereto; (v) to monitor and control the ABRD R&D Program budget
and to consider whether any proposed changes should be made to the R&D Plan
and its execution; and (vi) to exchange suggestions, ideas and recommendations
pertaining to the overall achievement of the ABRD R&D Objective. In addition
to the voting members of the Steering Committee designated pursuant to
Section 3.3, the Steering Committee may also have non-voting members
nominated by one Party and approved by the other Party in its absolute
discretion.
3.3 Composition.
Dyadic
shall designate a total of two (2) employees or officers of Dyadic to
represent Dyadic, and ABRD shall designate two (2) employees or officers of
ABRD or its Affiliates to represent ABRD on the Steering Committee. Only
representatives designated pursuant to this Section 3.3 shall have the
right to vote on the Steering Committee, provided that if any representative
of
a Party is unable to attend a meeting of the Steering Committee, another
representative of that Party shall be entitled to attend and vote in his or
her
stead. The number of voting representatives may be increased upon mutual written
agreement of the Parties. Each Party shall appoint or nominate its respective
representatives to the Steering Committee and, from time to time, may substitute
one or more of its representatives. Additional representatives or consultants
of
a Party may from time to time, with
the
consent of the other Party (with such consent not to be unreasonably withheld
or
delayed) attend meetings of the Steering Committee, subject to such
representative’s and/or consultant’s agreement to comply with the
confidentiality obligations equivalent to those set forth in Article VI and
provided that such additional representatives shall have no vote. The Steering
Committee may establish such working groups or sub-committees as it may choose
from time to time to accomplish its purposes.
3.4 Governance.
The
Steering Committee shall be chaired by one of the members of the Steering
Committee, who shall be a representative of Dyadic. Decisions of the Steering
Committee, shall be made by unanimous vote (with each Party’s voting
representatives participating in the vote collectively having one (1) vote.
3.5 Meetings.
The
Steering Committee shall meet not less than once every four (4) months in
accordance with a schedule established by mutual written agreement of the
Parties, with the location for such meetings determined by agreement of the
Parties. Either Party may call for non-scheduled meetings of the Steering
Committee for good cause, which shall occur at mutually agreeable times. The
Steering Committee, upon mutual agreement, may meet by means of teleconference,
videoconference or other similar communications equipment. No meeting may be
conducted unless at least two (2) voting representatives of each Party are
participating.
3.6 Records.
The
chair of the Steering Committee, or his/her designee, shall have responsibility
for preparing minutes of each meeting. Such minutes shall provide a description,
in reasonable detail, of the discussions at the meeting and decisions made
by
the Steering Committee. Such minutes shall be circulated on a confidential
basis
to all members of the Steering Committee within thirty (30) days following
such
meeting.
ARTICLE
IV
INTELLECTUAL
PROPERTY
4.1 Dyadic
Ownership of Intellectual Property.
Dyadic
is the sole and exclusive owner of all intellectual property rights (i) in
Dyadic Core Technologies, (ii) in all improvements thereto made or contributed
to in whole or in part by Dyadic outside of the ABRD R&D Program (“
Dyadic
Improvements”)
and
(iii) except for (x) certain “Jointly Developed Technology” (as defined in
Section 4.3, below) and (y) ABRD Background Technology, in all Enzyme Mixtures,
Processing Technologies, Manufacturing Technologies and any other New
Applications Technology developed by Dyadic in its conduct of the ABRD R&D
Program and the Master R&D Program, whether alone or in collaboration with
any Third Parties (“New
Technologies,”
and
together with the Dyadic Core Technologies and the Dyadic Improvements,
collectively “Dyadic
Technology”)
in
order that Dyadic is able to freely research, develop and commercialize for
manufacture, distribution, sale and/or license such Dyadic Technology or
otherwise grant commercial rights to use the Dyadic Technology to Third Parties,
including without limitation Collaboration Partners.
4.2 ABRD
Ownership of its ABRD Background Technology.
ABRD
shall provide Dyadic with proprietary samples of various Applicable Substrates
from time to time, as approved by the Steering Committee, and may disclose
certain proprietary ABRD information pertaining to the source and composition
of
each such Applicable Substrate for the purpose of enabling Dyadic to perform
the
R&D Plan. ABRD shall remain the exclusive owner of all ABRD Background
Technology, provided
that
to the
extent that any ABRD Background Technology is incorporated into any Dyadic
Technology, including but not limited to any Processing Technology, any
Manufacturing Technology or any other Enzyme Mixture that Dyadic may develop,
ABRD shall agree to grant to Dyadic, a license to use such ABRD Background
Technology in accordance with the provisions of subsection (d) below in any
manner Dyadic chooses, further
provided that:
(a) Dyadic
shall obtain ABRD’s prior written approval to incorporate each ABRD Background
Technology into any Dyadic Technology, provided that ABRD shall consent thereto
unless to grant such consent would cause ABRD to suffer a clear and convincing
material adverse affect on its business, taken as a whole;
(b) In
order
to be eligible to such approval, Dyadic shall disclose in writing to ABRD each
Dyadic Technology into which such ABRD Background Technology is incorporated
and
the method of such incorporation as promptly as practicable but in no case
later
than two (2) weeks after such incorporation, and Dyadic shall not enter into
any
agreement which restricts its ability to make any such disclosure;
(c) in
no
event shall Dyadic identify or otherwise disclose to any Third Party as ABRD
Background Technology any ABRD Background Technology incorporated into any
Dyadic Technology, nor shall Dyadic disclose any other information in breach
of
its obligations of confidentiality as set forth hereunder; and
(d) any
license granted by ABRD to Dyadic under this Section 4.2 shall not be effective
until the Parties have entered into a definitive license agreement granting
to
Dyadic a license to use, make, have made and sell products or services
incorporating such ABRD Background Technology or any derivation thereof, on
a
world-wide, irrevocable, paid-up, non-exclusive, royalty-free, but freely
transferable and freely sub-licensable basis, in consideration for Dyadic’s
payment to ABRD of a one-time license fee in an amount which shall be
commercially reasonable in light of the relevant circumstances, provided that
if
the Parties, after negotiating in good faith, are unable to agree upon the
one-time license fee within a reasonable period of time following Dyadic’s
request for any such license, such license fee shall be determined by binding
arbitration in accordance with the provisions of Article X hereof, further
provided in any event that such license fee and other terms shall be not less
favorable to Dyadic then the most favorable terms offered by ABRD to any other
licensee of ABRD Background Technology.
4.3 Jointly
Developed Technology.
Subject
to the last sentence of this Section 4.3, if any technology directly or
indirectly related to the CE R&D Activities, shall, under applicable U.S.
patent laws, be deemed to be jointly developed by Dyadic and ABRD in connection
with the completion of any facet of the ABRD R&D Program (“Jointly
Developed Technology”),
then:
(a)
if
the Jointly Developed Technology relates to either (x) Dyadic’s Core Technology,
any Dyadic Improvements thereto and any New Technologies other than New
Applications Technology or (y) any Enzyme Mixture and related Processing
Technology and \or Manufacturing Technology developed by Dyadic, ABRD shall
assign exclusive ownership thereof to Dyadic, and ABRD shall enjoy no rights
therein except to the extent of a License from Dyadic on the terms set forth
in
Article V hereof;
(b) if
the
Jointly Developed Technology:
(i) relates
to the ABRD Background Technology other than New Applications Technology, Dyadic
shall assign exclusive ownership thereof to ABRD, provided
that
ABRD
shall license such Jointly Developed Technology to Dyadic to use, make, have
made and sell products or services incorporating such Jointly Owned Technology
or any derivation thereof, on a world-wide, irrevocable, paid-up, non-exclusive,
royalty-free, but freely transferable and freely sub-licensable basis, in
consideration for Dyadic’s payment to ABRD of a one time license fee in an
amount which shall be commercially reasonable in light of the relevant
circumstances, provided that if the Parties, after negotiating in good faith,
are unable to agree upon the one-time license fee within a reasonable period
of
time following Dyadic’s request for any such license, such license fee shall be
determined by binding arbitration in accordance with the provisions of Article
X
hereof, further provided in any event that such license fee and other terms
shall be not less favorable to Dyadic then the most favorable terms offered
by
ABRD to any other licensee of ABRD Background Technology;
(ii) relates
to New Applications Technology, Dyadic shall assign exclusive ownership thereof
to ABRD, provided
that
ABRD
shall license such Jointly Developed Technology to Dyadic to use, make, have
made and sell products or services incorporating such Jointly Owned Technology
or any derivation thereof, on a world-wide, irrevocable, paid-up, non-exclusive,
royalty-free, but freely transferable and freely sub-licensable basis, in
consideration for Dyadic’s payment to ABRD of a ten dollar ($10.00) one-time
license fee;
and
(c) if
the
provisions of subsections (a) and (b) do not apply, then each of Dyadic and
ABRD
shall enjoy identical ownership rights in that Jointly Developed Technology
except
that
ABRD
shall be allowed to use such Jointly Developed Technology for any use which
does
not constitute the conduct of a trade or business activity which is competitive
with the enzyme development and manufacturing business in which Dyadic is
engaged (or in which Dyadic can reasonably demonstrate it was then planning
to
engage) on the date such Jointly Developed Technology was
developed.
ABRD
agrees that the term “Jointly Developed Technology” also includes any new
conceptions, ideas, inventions, innovations, concepts, reductions to practice,
solutions to problems and other know-how or technology which directly or
indirectly relates to the CE R&D Activities: (i) in the conduct of any
Steering Committee review meeting, is revealed by ABRD at any such meeting
or
arises therefrom; or (ii) is conceived out of ABRD’s review of any confidential
information furnished to ABRD by Dyadic in reports or other communications
furnished or made by Dyadic in connection with its reporting to ABRD on the
ABRD
R&D Program.
4.4 Dyadic
Disclosure of New Technologies to ABRD.
To the
extent that Dyadic or its Affiliates develop any New Technology during the
Term
of this Agreement, whether derived out of the Master R&D Program or derived
out of the ABRD R&D Program, that might reasonably have commercial utility
to any of the Applicable Substrates (each an “Applicable
New Technology”),
Dyadic covenants to ABRD that Dyadic will promptly disclose in writing to ABRD
each such Applicable New Technology on a timely basis but in no case later
than
the next Steering Committee meeting following such development. Such disclosure
of an Applicable New Technology shall include without limitation, descriptions
of the nature, the perceived utility of, and the new and/or improved product
and/or process aspects of that Applicable New Technology; provided
that
Dyadic
shall not be obligated to disclose the identity of any Third Party contributing
to or expressing a commercial interest in any Applicable New Technology or
information owned or controlled by a Third Party in respect of which Dyadic
has
an obligation of confidentiality. Dyadic covenants that it will not enter into
any agreement with any Third Party which restricts its ability to grant ABRD
a
non-exclusive license for ABRD to practice each Applicable New Technology and
all Dyadic Technology or to make any such disclosure to ABRD pertaining to
each
such Applicable New Technology, to the extent each Applicable New Technology
is
owned by Dyadic or its Affiliates; except
that
Dyadic
shall be free to grant the first license granted by Dyadic with respect to
such
Applicable New Technology on an exclusive basis to a Third Party for the first
year of such Dyadic license to any such Third Party.
4.5 Third
Party Infringement.
Each
Party shall indemnify, defend and hold harmless the other Party and its
Affiliates and their respective officers, directors, and employees (the
“Indemnifying
Party”
and
the
“Indemnified
Parties,”
respectively) from any losses, damages, liabilities, fines, penalties, and
expenses (including reasonable attorneys' fees) that arise out of or result
from
any Third Party claims of infringement of any patent or copyright, or
misappropriation of any trademark, trade secret or other intellectual property
right, private right, or any other proprietary or personal interest
(“Infringement
Claim”),
and
related by circumstances to the existence of this Agreement and the Dyadic
Technology, in the case of Dyadic, or the ABRD Background Technology, in the
case of ABRD, provided by the Indemnifying Party to the Indemnified Party
hereunder or performance under or in contemplation of this Agreement, except
to
the extent such Infringement Claim is due to the infringing acts and/or products
of the other Party.
(a) The
Indemnified Parties shall furnish the Indemnified Party with reasonable notice
of such Infringement Claim and, upon the written request of the Indemnified
Parties, reasonable assistance and information (at the Indemnifying Party’s
expense) in the defense or settlement of such Infringement Claim. The
Indemnifying Party shall have sole control of the defense and settlement
negotiations. The Indemnifying Party will not make any statement in its defense
that is against the interest of Indemnified Parties and will not enter into
any
settlement without the consent of the Indemnified Parties that requires an
admission of guilt or wrong-doing on the part of any of the Indemnified Parties
or a monetary payment by Indemnified Parties that is in addition to the amount
Indemnifying Party is obligated to pay on Indemnified Parties’ behalf under this
Section.
(b) The
Indemnifying Party will have no obligation to indemnify the Indemnified Parties
under this Section for Infringement Claims that result solely from: (i) the
Indemnified Parties’ combination, operation or unauthorized use of the
Indemnifying Party’s intellectual property or products supplied by the
Indemnified Parties or others on behalf of Indemnified Parties where such
product alone would not be infringing; (ii) any alteration or modification
of an
Indemnifying Party’s products by the Indemnified Parties not approved in writing
by Indemnifying Party, if the products or intellectual property of the
Indemnifying Party alone would not be infringing; (iii) the use of any product
or intellectual property of the Indemnifying Party other than in accordance
with
its applicable specifications or documentation for such product or intellectual
property where same was used in accordance with the applicable specifications
or
documentation would not be infringing; or (iv) Indemnifying Party’s compliance
with Indemnified Parties’ designs, specifications, or instructions, where the
product or intellectual property would not be infringing if it were not for
such
compliance.
(d) In
the
event of an Infringement Claim, or if the Indemnifying Party has reasons to
believe its product or intellectual property may become the subject of an
Infringement Claim, the Indemnifying Party will (i) procure
for the Indemnified Parties the right to continue to use such product or
intellectual property, as the case may be; and if such procurement is not
commercially reasonable; (ii) replace or modify such product or intellectual
property, or portion thereof, so it is no longer infringing; or (iii) if the
Indemnifying Party, using commercially reasonable efforts, is unable to do
(i)
or (ii) above, refund all moneys paid to the Indemnifying Party by Indemnified
Parties for such infringing product or intellectual property, less a reasonable
amount for use based upon a five (5) year straight line depreciation
calculation.
4.6 Restrictions
on Dyadic Entry Into Agreements with Third Parties.
Dyadic
covenants to ABRD that Dyadic shall not enter into any agreement with any Third
Party which restricts Dyadic’s ability to license any Custom Enzyme Mixture and
related Custom Processing Technology and Custom Manufacturing Technology to
ABRD
for ABRD to practice.
ARTICLE
V
ABRD
COMMERCIAL RIGHTS
5.1 ABRD
Commercial Rights.
In
respect of each Applicable Substrate, ABRD will have an option for a
non-exclusive and non-transferable right (except as permitted by the provisions
of Section 12.8 hereof) to one or multiple licenses (each a “License”),
to
the Custom Enzyme Mixture, related Custom Processing Technology and Custom
Manufacturing Technology, (the “Licensed
Enzyme Mixture,”
and
its
related “Licensed
Processing Technology”
and
“Licensed
Manufacturing Technology,”
respectively) developed by Dyadic for that Applicable Substrate, and on a per
ABRD Facility basis for the internal consumption of ABRD and its Affiliates
only
(and for no other purpose) and only at the site of that licensed ABRD Facility
(each a “Licensed
ABRD Facility”),
except as permitted by the provisions of Sections 5.1(c) and 5.1(e), below.
(a) License
Option Exercise Periods:
The
option period within which ABRD shall have the right to one or more Licenses
for
each “completed” Custom Enzyme Mixture and related Custom Processing Technology
and Custom Manufacturing Technology for an Applicable Substrate shall be the
ninety (90) day period of time following the completion by ABRD of a
verification testing period of thirty (30) days after Dyadic has delivered
to
ABRD for such verification testing, a completed Applicable Substrate and its
related Manufacturing Technology (as
to
such Custom Enzyme Mixture, related Custom Processing Technology and Custom
Manufacturing Technology, its applicable “Option
Period”).
(b)
Dyadic
Technology Transfer to ABRD Facility:
Incident to each License, Dyadic personnel will, promptly, but in no event
more
than ten (10) Business Days following the date of the execution of the license
agreement evidencing the License for such Licensed Enzyme Mixture and related
Licensed Processing Technology and Licensed Manufacturing Technology, provide
ABRD with a complete technology transfer of the relevant Licensed Processing
Technology and Licensed Manufacturing Technology and know-how to use the
Licensed Enzyme Mixture and related Licensed Manufacturing Technology at the
Licensed ABRD Facility.
(c)
ABRD
Licensed Usage:
Each
License will permit ABRD to use the Licensed Enzyme Mixture and related Licensed
Processing Technology and Licensed Manufacturing Technology solely for the
production of ethanol for the internal consumption of ABRD and its Affiliates,
and only on-site at the specifically Licensed ABRD Facility. Except for
“Qualified Manufacturing Sublicenses” (as defined below) and “Qualified Entire
System Sublicenses” described in Section 5.1(e), each License will prohibit ABRD
from selling, licensing or otherwise transferring either the Licensed
Manufacturing Technology and/or Processing Technology, in whole or in part,
or
any of the Licensed Enzyme Mixture it produces, to any Third Party. ABRD shall
have the right to grant a manufacturing sub-license of the Licensed Processing
Technology and\or Manufacturing Technology for the exclusive purpose of enabling
that manufacturing sub-licensee to manufacture such Licensed Enzyme Mixture
solely for the internal consumption of ABRD and its Affiliates, and for no
other
purpose (a “Qualified
Manufacturing Sublicense”),
provided
that
no term
of such sub-license shall be in any way inconsistent with ABRD’s obligations to
Dyadic under ABRD’s License and ABRD shall, except in the case where the
sublicensee’s principal place of business and situs of its usage of the Licensed
Enzyme Mixture is located in North America or the European Union, first obtain
the prior written consent of Dyadic, which consent shall not be unreasonably
withheld or delayed, further
provided that
no such
Qualified Manufacturing Sublicense shall be entered into until Dyadic shall
have
reviewed same and commercially reasonably satisfied itself that the terms
thereof fully protect Dyadic against any prohibited use of the Licensed Enzyme
Mixture and the related Licensed Processing Technology and Licensed
Manufacturing Technology or
the
dissemination of Dyadic Technology outside the sub-licensee’s use and
control.
(d)
Most
Favored Nation Royalty Protection:
If
Dyadic offers a license of the Licensed Enzyme Mixture (but not any other Enzyme
Mixture) to any licensee upon royalty terms more favorable to such licensee
than
the terms of the License to ABRD set forth herein, ABRD’s “Royalty” (as that
term is defined in Section 5.2(b)) for the usage of that Enzyme Mixture shall,
effective as of the date of such other licensing transaction, be reduced to
the
Royalty fixed in that other licensing transaction.
(e) Qualified
Entire System Sublicenses:
Notwithstanding any provision to the contrary, ABRD shall have the right to
sub-license the Licensed Enzyme Mixture and related Licensed Processing
Technology and Licensed Manufacturing Technology to a Third Party solely for
such Third Party’s internal consumption of the Licensed Enzyme Mixture upon the
following conditions: (i) such sublicense is made incident to ABRD’s license of
ABRD’s ethanol production system into which Dyadic’s Licensed Processing
Technology and\or Licensed Manufacturing Technology has been incorporated;
(ii)
except for the royalty terms and the right of such Third Party sub-licensee
to
use the Licensed Enzyme Mixture and related Licensed Processing Technology
and
Licensed Manufacturing Technology for its own internal consumption (and not
to
produce Licensed Enzyme Mixture for ABRD or any other Third Parties), no term
of
such sub-license shall be in any way inconsistent with ABRD’s obligations to
Dyadic under its License; (iv) such Qualified Entire System Sublicense shall
not
be entered into by ABRD until Dyadic shall have reviewed same and commercially
reasonably satisfied itself that the terms thereof fully protect Dyadic against
any prohibited use of the Licensed Enzyme Mixture and the related Licensed
Processing Technology and Licensed Manufacturing Technology or
the
dissemination of Dyadic Technology outside the sub-licensee’s use and control;
(iii)
such
Third Party sub-licensee shall pay the same License Fees and Technology Transfer
Fees to Dyadic as are fixed by subsections (a) and (c) of Section 5.2; (iv)
ABRD
shall, except in the case where the sub-licensee’s principal place of business
and situs of its usage of the Licensed Enzyme Mixture is located in North
America or the European Union, first obtain the prior written consent of Dyadic,
which consent shall not be unreasonably withheld or delayed; and (v) ABRD shall
pay to Dyadic a Royalty and License Fees on such Third Party Qualified Entire
System Sublicense at the same License Fee rate and a royalty rate equal to
the
“Applicable Royalty Rate” fixed in Section 5.2(a) and 5.2(b),
respectively.
5.2 License,
Tolling and Technology Transfer Fees for Each License.
As
part
consideration for the commercial rights granted by Dyadic to ABRD, ABRD shall
pay the following amounts to Dyadic separately for each License:
(a) License
Fee Per License:
ABRD
shall pay to Dyadic a one-time license fee of $**** per **** gallons of ethanol
capacity for the Licensed Enzyme Mixture and related Licensed Processing
Technology and Licensed Manufacturing Technology for the Licensed ABRD Facility
upon Dyadic’s delivery of the that Licensed Manufacturing Technology to that
Licensed ABRD Facility (the “License
Fee”),
provided
that
(i) the
maximum License Fee per License is $**** and (ii) not more than **** License
Fee
shall have to be paid in respect of a single ABRD Facility without regard to
the
number of Custom Enzyme Mixtures and related Custom Processing Technologies
and
Custom Manufacturing Technologies, licensed by ABRD for that particular ABRD
Facility.
(b) Royalties
Per License:
ABRD
shall pay to Dyadic a royalty in the amount of **** (US$****) per gallon of
ethanol produced at that Licensed ABRD Facility using that Licensed Enzyme
Mixture, related Licensed Processing Technology and\or Licensed Manufacturing
Technology, on a quarterly basis thereafter, for a term of the greater of (x)
the life of any patents included in either that Licensed Enzyme Mixture and\or
its related Licensed Processing Technology and\or its related Licensed
Manufacturing Technology (each
an
“Applicable
Patent”)
or
(y)
**** years from the date of the commencement of commercial production of that
Licensed Enzyme Mixture on-site at that Licensed ABRD Facility, provided
that if the last Applicable Patent shall expire prior to the ****, the royalty
rate shall drop from US$**** per gallon of ethanol to US$**** per gallon of
ethanol (the “Applicable
Royalty Rate”),
provided that commencing on ****, and on the first day of each subsequent
calendar year, the Applicable Royalty Rate shall be adjusted for inflation
on an
annual basis, using the United States Consumers Price Index and the year ****
as
the reference year;
and
(c) Technology
Transfer Fees Per License:
ABRD
shall pay to Dyadic fees (calculated at **** of Dyadic’s the fully-loaded
salaried cost of the deployed personnel performing the applicable transfer
services) for time expended by Dyadic personnel (and reimburse all reasonable
out-of-pocket expenses incurred) in completing Dyadic’s transfer of that
Licensed Enzyme Mixture, related Licensed Processing Technology and related
Licensed Manufacturing Technology to that Licensed ABRD Facility, and for any
additional technical services furnished by Dyadic thereafter at that Licensed
ABRD Facility (“Technology
Transfer Fees”).
5.3 Other
License Terms.
Other
License provisions, including without limitation, provisions governing (i)
royalty accounting, (ii) rights controlled by Dyadic which, if enforced against
ABRD would abrogate or abridge the rights of ABRD under the Licenses granted
pursuant to this Agreement, (iii) sub-licensor liability for misuse of the
Licensed Enzyme Mixture and related Licensed Processing Technology and Licensed
Manufacturing Technology, (iv) confidentiality and related restrictions on
sub-licensing, (v) ownership of, rights to, and license-back provisions for
improvements to such Licensed Enzyme Mixture and related Licensed Processing
Technology and Licensed Manufacturing Technology, (vi) indemnities and (vii)
other customary license provisions, will all be negotiated by the Parties in
good faith.
ARTICLE
VI
CONFIDENTIALITY
6.1 Definition.“Confidential
Information”
means
any information disclosed by one Party (the "Disclosing
Party")
to the
other (the "Receiving
Party"),
whether oral, written, visual, electromagnetic, electronic or in any other
form,
and whether contained in memoranda, summaries, notes, analyses, compilations,
studies or other documents, and whether same have been prepared by the
Disclosing Party or the Receiving Party: (i) which, if in written, graphic,
machine-readable or other tangible form is marked as "Confidential" or
"Proprietary," or which, if disclosed orally or by demonstration, is identified
at the time of initial disclosure as confidential and is summarized in writing
and similarly marked and delivered to the Receiving Party within thirty (30)
Days of initial disclosure; and (ii) which is (A) technical data or information,
including proprietary host organisms and their strains, plasmids/vectors, DNA
sequences, gene expression, fungal high throughput screening, enzymes and their
applications, research and manufacturing protocols and practices, formulae,
charts, analyses, reports, patent applications, trade secrets, ideas, methods,
processes, know-how, computer programs, products, equipment, raw materials,
designs, data sheets, schematics, configurations, specifications, techniques,
drawings, and the like, whether or not relating to experimental data, projects,
products, processes, research practices and the like, (B) past, present and
future business, financial and commercial data or information, prices and
pricing methods, marketing and customer information, financial forecasts and
projections, and other data or information relating to strategies, plans,
budgets, sales and the like; and (C) any other data or information delivered
by
the Disclosing Party to the Receiving Party or which the Receiving Party has
acquired from the Disclosing Party by way of the former’s inspection or
observation during visits to the research laboratory, manufacturing plan or
other type of facility of the latter Party. The Parties expressly acknowledge
and agree that all information of a proprietary and/or confidential nature
furnished by the Disclosing Party to the Receiving Party in furtherance of
the
Disclosing Party’s obligations under this Agreement shall be deemed Confidential
Information to which the provisions of this Article VI shall apply.
6.2 Confidential
Information Exclusions.
Confidential Information will exclude information that the Receiving Party
can
demonstrate is: (i) now or hereafter, through no unauthorized act or failure
to
act on Receiving Party's part, in the public domain; (ii) known to the Receiving
Party from a source other than the Disclosing Party (including former employees
of the Disclosing Party) without an obligation of confidentiality at the time
Receiving Party receives the same from the Disclosing Party, as evidenced by
written records; (iii) furnished to others by the Disclosing Party without
restriction on disclosure; or (iv) independently developed by the Receiving
Party without use of the Disclosing Party's Confidential Information. Nothing
in
this Agreement shall prevent the Receiving Party from disclosing Confidential
Information to the extent the Receiving Party is legally compelled to do so
by
any governmental investigative or judicial agency pursuant to proceedings over
which such agency has jurisdiction; provided, however, that prior to any such
disclosure, the Receiving Party shall (a) assert the confidential nature of
the
Confidential Information to the agency; (b) immediately notify the Disclosing
Party in writing of the agency's order or request to disclose; and (c) cooperate
fully with the Disclosing Party in protecting against any such disclosure and/or
obtaining a protective order narrowing the scope of the compelled disclosure
and
protecting its confidentiality.
6.3 Confidentiality
Obligation.
Except
as provided in Section 6.4, for a period commencing June 10, 2006 and ending
on
the fifth anniversary of the expiration of the Term of the Agreement, the
Receiving Party shall treat as confidential all of the Disclosing Party's
Confidential Information and shall not use such Confidential Information for
any
purpose whatsoever other than for the purposes set forth herein, except as
expressly otherwise permitted under this Agreement. Without limiting the
foregoing, the Receiving Party shall use the same degree of care and means
that
it utilizes to protect its own information of a similar nature, but in any
event
not less than reasonable care and means, to prevent the unauthorized use or
the
disclosure of such Confidential Information to Third Parties. The Confidential
Information may be disclosed only to employees or contractors of the Receiving
Party with a "need to know" who are instructed and agree not to disclose the
Confidential Information and not to use the Confidential Information for any
purpose, except as set forth herein; provided, however, in the case of Dyadic,
the term "employees or contractors of a Receiving Party" shall include employees
of each of those of Dyadic’s independent contractor research organizations with
whom Dyadic has written agreements pursuant to which such independent contractor
research organization is bound by an obligation of confidence to Dyadic that
makes such independent contractor research organization liable for any breach
by
its employees of those confidentiality obligations to Dyadic. The Receiving
Party shall have appropriate written agreements with any such employees or
independent contractor research organizations sufficient to comply with the
provisions of this Agreement. A Receiving Party may not alter, decompile,
disassemble, reverse engineer, or otherwise modify any Confidential Information
received hereunder and the mingling of the Confidential Information with
information of the Receiving Party shall not affect the confidential nature
or
ownership of the same as stated hereunder.
6.4 Permitted
Disclosures of Embedded ABRD Confidential Information.
The
preceding to the contrary notwithstanding, Dyadic shall be entitled to disclose
ABRD Confidential Information to Third Parties if the following three (3)
conditions are satisfied in connection with any such disclosure: (i) such ABRD
Confidential Information is not identified to any such Third Party as being
or
having originated from ABRD Confidential Information; (ii) such disclosure
of
ABRD Confidential Information occurs solely by reason of the fact that such
ABRD
Confidential Information is embedded or otherwise embodied in Dyadic Technology,
without regard to whether such Dyadic Technology was derived from Dyadic
Foundational R&D activities or Applications R&D activities performed by
Dyadic (whether in the conduct of the ABRD R&D Program or the conduct of the
Master R&D Program); and (iii) any Third Party to whom such disclosure of
such ABRD Confidential Information is made is a party to a written
confidentiality agreement with Dyadic by which such Third Party is bound to
hold
such disclosure in confidence.
6.5 Confidentiality
of Agreement and Superceding of Prior Confidentiality
Agreement.
Each
Party agrees that the terms and conditions, but not the existence, of this
Agreement will be treated as the other Party's Confidential Information and
that
no reference to the terms and conditions of this Agreement or to commercial
metrics and activities pertaining thereto (but no disclosure of any intellectual
property of ABRD may be made, other than to list same on disclosure schedules)
may be made in any form of press release or public statement without first
consulting with the other Party; provided,
however,
that
each Party may disclose the terms and conditions of this Agreement: (i) as
may
be required by law; (ii) to legal counsel of the Parties; (iii) in confidence,
to accountants, banks, and financing sources and their advisors; (iv) in
confidence, in connection with the enforcement of this Agreement or rights
under
this Agreement; or (v) in confidence, in connection with a merger or acquisition
or proposed merger or acquisition, or the like. The Parties hereby expressly
agree that the provisions of this Article VI shall supercede the terms of that
certain Confidentiality Agreement dated June 10, 2006, which shall be of no
further force and effect, and that this Article VI shall apply to all non-public
information furnished by Dyadic to ABRD since the June 10, 2006.
6.6 No
Confidential Information of Other Persons.
Each
Party represents and warrants to the other that it has not used and shall not
use in the course of its performance hereunder, and shall not disclose to the
other, any confidential information of any other Person, unless it is expressly
authorized in writing by such Person to do so.
6.7 Required
Disclosure.
Each
Party shall be entitled to make such disclosures as shall be required by law,
provided that if
the
Receiving Party is required to disclose the Disclosing Party's Confidential
Information pursuant to the order or requirement of a court, administrative
agency, or other governmental body, the Receiving Party shall provide prompt
notice thereof to the Disclosing Party and shall use its reasonable efforts
to
obtain a protective order or otherwise prevent public disclosure of such
information.
ARTICLE
VII
REPRESENTATIONS
AND WARRANTIES
7.1 Representations
and Warranties of the Parties.
The
Parties represent and warrant that:
(a) it
is a
company duly organized, validly existing and in good standing under the laws
of,
in the case of Dyadic, Florida, and in the case of ABRD, Missouri;
(b) the
execution of this Agreement on its behalf has been properly authorized by all
necessary corporate action;
(c) this
Agreement is valid and binding on it and enforceable against it in accordance
with the terms hereof, subject to applicable bankruptcy and similar laws
affecting creditors’ rights and remedies generally, and subject, as to
enforceability, to general principles of equity;
(d) neither
the execution nor the performance of this Agreement will constitute a breach
or
violation of the terms of its charter or organizational documents or any
contract, agreement or other commitment to which it is a party or by which
it or
any of its properties are bound; and
(e) there
are
no bankruptcy, insolvency, receivership or similar proceedings involving it
or
any of its Affiliates either pending or being contemplated, or any other pending
or threatened actions, suits, arbitrations or other proceedings by or against
it.
7.2 Disclaimer.
Except
for the foregoing warranties (and commercially reasonable warranties of Dyadic
to ABRD that shall be included in the license agreement evidencing the
License(s) granted by Dyadic to ABRD in accordance with the provisions of
Article V hereof), THE FOREGOING WARRANTIES OF EACH PARTY ARE IN LIEU OF ALL
OTHER WARRANTIES, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW,
STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE, ALL OF WHICH ARE HEREBY
DISCLAIMED.
ARTICLE
VIII
INDEMNIFICATION
8.1 In
General.
Subject
to the provisions of Section 9.8 hereof, each Party (the “Indemnifying
Party”)
shall
defend, indemnify and hold harmless the other Party, its Affiliates, and its
and
their employees, officers, directors, agents, distributors and licensees (each
an “Indemnified
Party”)
against any loss, damage, expense, or cost, including reasonable attorneys’
fees, arising out of any claim, demand, action, suit, investigation, arbitration
or other proceeding by a Third Party (an “Action”)
based
on (a) the Indemnifying Party’s breach of this Agreement; or (b) negligence,
willful misconduct or violation of any law or regulation by the Indemnifying
Party, its Affiliates, or its or their employees, officers, directors, or
agents.
8.2 Procedure.
If an
Indemnified Party becomes aware of any Action it believes is indemnifiable
under
Section 8.1, (a) the Indemnified Party shall give the Indemnifying Party
prompt written notice of such Action; (b) the Indemnifying Party shall
assume, at its expense, the sole defense of such claim or cause of action
through counsel selected by it and reasonably acceptable to the Indemnified
Party, except that in the case of a conflict of interest between the Parties,
the Indemnifying Party shall, at the Indemnifying Party’s expense, provide
separate counsel for the Indemnified Party selected by the Indemnified Party;
(c) the Indemnifying Party shall maintain control of such defense, including
any
decision as to settlement, except that any settlement of an Action shall require
the written consent of both Parties, which consent shall not be withheld or
delayed unreasonably; (d) the Indemnified Party may, at its option and
expense, participate in such defense, and in any event, the Parties shall
cooperate with one another in such defense; and (e) the Indemnifying Party
shall
bear the total costs of any court award or settlement in such Action.
ARTICLE
IX
TERM
AND TERMINATION
9.1 Term.
The term
of this Agreement (the “Term”),
unless sooner terminated as below set forth, shall commence as of the Effective
Date and, end upon the first to occur of: (i) the third anniversary of the
date
that the Steering Committee approved the initial Statement of Work; or (ii)
ABRD’s receipt of Dyadic’s written notice of its full funding of the Applicable
R&D Spend (the “Program
Completion Date”).
9.2 Termination
for Default.
If
either Party materially breaches this Agreement or the SPA and fails to cure
the
breach within thirty (30) days after receiving written notice thereof from
the
other Party identifying with reasonable specificity the nature of the alleged
breach, the other Party may terminate this Agreement upon further written notice
to the breaching Party at any time that the breach remains uncured.
9.3 Termination
for Insolvency.
Either
Party may terminate this Agreement if the other Party becomes insolvent,
voluntarily files a petition for relief under bankruptcy or any similar or
other
insolvency laws (or has a petition filed against it and the same remains
undischarged or unstayed for 60 days) or voluntarily or involuntarily enters
receivership or any similar or other insolvency proceeding.
9.4 Effect
of Termination.
In the
event of termination of this Agreement either on or prior to the expiration
of
its fixed term by ABRD or Dyadic:
(a) if
this
Agreement was breached by Dyadic on account of its failure to achieve an
aggregate cumulative Applicable R&D Spend of not less than $10,000,000.00 on
or before the close of the R&D Spend Measurement, then Dyadic shall grant to
ABRD the Licenses fixed in Article V for the Custom Enzyme Mixture, related
Custom Processing Technology and Custom Manufacturing Technology for each
Applicable Substrate on a Royalty-free basis (and free of any duty of Royalty
accounting thereunder), and further, ABRD shall have the right to sublicense
the
Enzyme Mixture and related Custom Processing Technology and Custom Manufacturing
Technology in accordance with the provisions of Sections 5.1(c) and 5.1(e),
on a
Royalty-free basis (and free of any duty of Royalty accounting thereunder),
except that no consent shall be required of Dyadic, provided that the
obligations of Dyadic to deliver such Licenses to ABRD shall be only as to
such
of that technology as has been developed by Dyadic up through the date of the
breach, further
provided
that if
Dyadic and ABRD are unable to agree upon the material terms of the license
agreement evidencing the Licenses referred to in Section 5.3 hereof, such that
the Parties are compelled to resort to arbitration pursuant to the provisions
of
Section 10.1, then in that event, without regard to the outcome of such
arbitration proceedings, Dyadic shall (x) promptly following the execution
of
the final form of agreement evidencing such Licenses, reimburse ABRD for all
reasonable costs (including legal fees) incurred by it in the negotiation,
arbitration and resolution of the all matters surrounding such arbitration
and
the execution and delivery of that form agreement evidencing the Licenses,
and
(y) pay all of the costs of the referenced arbitration;
(b) if
this
Agreement is materially breached by ABRD which breach is not cured within the
time period fixed by the provisions of Section 9.2 hereof, then any provision
to
the contrary notwithstanding, provided
that
ABRD
shall continue to enjoy the benefit of all Licenses granted to it by Dyadic
pursuant to the provisions of Article V hereof prior to the date of such breach
(including all rights to grant sublicenses as therein set forth), all further
rights of ABRD rights to license Custom Enzyme Mixtures and related Custom
Processing Technologies and Custom Manufacturing Technologies, shall
automatically terminate, Dyadic shall have no further obligation to continue
to
make any Applicable R&D Spend, and Dyadic shall be entitled to damages in
the amount determined by arbitration pursuant to the provisions of Article
X
(except in the instance where the provisions of Section 10.3 shall apply, in
which case such damages shall be determined by a court of competent
jurisdiction); and
(c) if
this
Agreement is materially breached by Dyadic for any reason other than that set
forth in subsection (a), above, which breach is not cured within the time period
fixed by the provisions of Section 9.2 hereof, provided
that
Dyadic
shall continue to enjoy all of the benefit of all licenses granted to it by
ABRD
pursuant to the provisions of Sections 4.2 and 4.3(b) hereof prior to the date
of such breach (including all of the rights in respect thereof set forth
therein), all further rights of Dyadic to license ABRD Background Technology
under Section 4.2 and Jointly Developed Technology under Section 4.3(b) shall
automatically terminate. In addition to enjoying the commercial rights set
forth
in Article V hereof, ABRD shall be entitled to damages in the amount determined
by arbitration pursuant to the provisions of Article X (except in the instance
where the provisions of Section 10.3 shall apply, in which case such damages
shall be determined by a court of competent jurisdiction).
9.5 Dyadic
Breach of Covenant to Make Applicable Spend.
Dyadic
hereby covenants and agrees that if Dyadic breaches its covenant to ABRD to
achieve an aggregate cumulative Applicable R&D Spend of not less than
$10,000,000.00 on or before the close of the R&D Spend Measurement, then in
that event, without regard to the consequences to the Dyadic fixed by the
provisions of Section 4.6 of the SPA, ABRD shall be entitled to the remedy
fixed
in Section 9.4(a) hereof.
9.6 Effect
of Termination; Other Remedies Available.
Notwithstanding anything in this Agreement to the contrary, in the event of
termination of this Agreement as is provided in this Article IX, each Party
shall have available every remedy allowed under law and equity, including but
not limited to specific performance, suit for damages, and
rescission.
9.7 Effectiveness
of this Agreement.
The
effectiveness of this Agreement is conditioned upon the Closing of the purchase
and sale of the “Purchased Securities” by ABRD from Dyadic pursuant to the terms
of the SPA Agreement on or before the “Closing Date” fixed by the SPA (as those
terms are defined therein).
9.8 Limitation
of Liability.
EXCEPT
WITH RESPECT TO DAMAGES TO THIRD PARTIES UNDER INFRINGEMENT INDEMNIFICATION
OBLIGATIONS SET FORTH IN SECTION 4.5 HEREOF OR WITH RESPECT TO BREACH OF
CONFIDENTIALITY OBLIGATIONS SET FORTH IN ARTICLE VI HEREOF WHICH BREACH IS
EITHER INTENTIONAL OR ON ACCOUNT OF AN ACT OR ACTS OF GROSS NEGLIGENCE (BUT
NOT
SIMPLE NEGLIGENCE)`, NEITHER PARTY SHALL BE LIABLE TO THE OTHER UNDER ANY
CONTRACT, STRICT LIABILITY, NEGLIGENCE OR OTHER THEORY FOR ANY INDIRECT,
INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING WITHOUT LIMITATION LOST PROFITS
IN
CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT OR ANY PURCHASE ORDER
IRRESPECTIVE OF WHETHER SUCH PARTY HAD ADVANCE NOTICE OR KNOWLEDGE OF THE
POSSIBILITY OF SUCH DAMAGES.
ARTICLE
X
DISPUTE
RESOLUTION
10.1 Arbitration
of Disputes.
Other
than any dispute arising in connection with the obligations of the Parties
created by the provisions of Article VI hereof (pertaining to Confidential
Information) or the right of a Party to enjoy the benefits of all intellectual
property of which Party is the sole and exclusive owner, as to which the
provisions of Section 10.3 hereof shall apply, any other dispute between the
Parties not resolved within fifteen (15) days after one Party notifies the
other
Party that it wishes to discuss the matter (“Dispute”),
shall
be resolved by arbitration in New York City, New York under the Commercial
Arbitration Rules (“Commercial
Rules”)
of the
American Arbitration Association (“AAA”),
including the AAA Supplementary Procedures for Large Complex Commercial Disputes
(“Complex
Procedures”),
as
such rules shall be in effect on the date of delivery of a demand for
arbitration (“Demand”),
except to the extent that such rules are inconsistent with the provisions set
forth herein. Notwithstanding the foregoing, the Parties may agree that the
Complex Procedures shall not apply in order to promote the efficient arbitration
of Disputes where the nature of the Dispute, including the amount in
controversy, does not justify the application of such procedures.
10.2 Arbitration
Procedures.
The
arbitration shall be conducted in the English language before one (1) impartial
arbitrator selected by mutual agreement of the Parties. If the Parties are
unable to mutually agree on an impartial arbitrator within ten (10) days, a
neutral arbitrator shall be appointed by the AAA from the panel of commercial
arbitrators of any of the AAA Large and Complex Resolution Programs. The
arbitrator’s award shall be a final and binding determination of the dispute. If
awarded by the arbitrator, the prevailing Party shall be entitled to recover
its
reasonably attorneys’ fees and expenses, including arbitration administration
fees incurred in connection with such proceeding.
10.3 Judicial
Action.
Notwithstanding the above, either Party may seek from any court having
jurisdiction hereof any interim, provisional or injunctive relief or specific
performance that may be necessary to protect that Party’s intellectual property
rights (including its Confidential Information) and tangible property or to
maintain the status quo before, during or after the pendency of the arbitration
proceeding. The institution and maintenance of any judicial action or proceeding
for any such interim, provisional or injunctive relief shall not constitute
a
waiver of the right or obligation of either Party to submit the dispute to
arbitration, including any claims or disputes arising from the exercise of
any
such interim, provisional or injunctive relief.
ARTICLE
XI
NOTICES
11.1 Delivery
of Notices.
All
notices sent under this Agreement shall be in writing and (a) hand delivered;
(b) transmitted by legible facsimile with a copy sent concurrently by certified
mail, return receipt requested; or (c) delivered by prepaid priority delivery
service.
11.2 Addresses
for Notices.
Notices
shall be sent to the Parties at the following addresses or such other addresses
as the Parties subsequently may provide:
If
to
Dyadic: 000
Xxxxxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000,
Xxxxxxx,
Xxxxxxx 00000
Facsimile
No.: 000-000-0000
Telephone
No.: 000-000-0000
Attn:
Chief Executive Officer
With
a
copy to: Xxxxxxxxx
Xxxxxxx, LLP
00
Xxxx
Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxxxxx 00000
Facsimile:
000-000-0000
Telephone:
000-000-0000
Attn:
Xxxxxx X. Xxxxxxxxx, Esq.
If
to
ABRD: 0000
Xxxxxxxx Xxxxx
Xxxxx
000
Xxxxxxxxxxxx,
XX 00000
Attention:
Xxxxxx Xxxxxx
Telephone: (000)
000-0000
Fax: (000)
000-0000
With
a
copy to: Squire,
Xxxxxxx & Xxxxxxx L.L.P
000
Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx,
Xxxx 00000
Telephone:
000-000-0000
Facsimile:
000-000-0000
Attn:
Xxxxx
X.
Xxxxxx
ARTICLE
XII
MISCELLANEOUS
12.1 No
Authority to Bind Parties.
Neither
Party shall have the authority and shall not purport to have the authority
to
enter into any contracts or make any representations or warranties on behalf
of
the other Party or its Affiliates or otherwise to bind or obligate the other
Party or its Affiliates in any manner whatsoever.
12.2 Relationship
Between Parties.
Dyadic
and ABRD are separate business entities, and shall not be considered as joint
ventures, partners, agents, servants, employee, or fiduciaries of each other.
Neither this Agreement nor the relationship between the Parties shall be
considered in any way to deem ABRD a franchisee of Dyadic for any purpose
whatsoever. The Parties specifically agree that any obligation to act in good
faith and to deal fairly with each other which may be implied in law shall
be
deemed satisfied by the Parties’ compliance with the express terms of this
Agreement.
12.3 Foreign
Corrupt Practices Act and Anti-Bribery Provisions.
(a) During
the Term of this Agreement, the Parties will not, and shall cause their
Affiliates to not, make or provide any payments or gifts or any offers or
promises of any kind, directly or indirectly, to any official of any government
or to any official of any agency or instrumentality of any government, or to
any
political party or to any candidate for political office (the foregoing
individually and collectively referred to as “Government
Official”).
If on
the date hereof or at any time during the term of this Agreement any
Governmental Official or an active member of the armed services of any
government (a) owns an interest in that certain Party or its Affiliate, (b)
has
any legal or beneficial interest in this Agreement or in payments to be received
by that certain Party or its Affiliate in connection with the services to be
provided by hereunder, or (c) is a director, officer or employee of that certain
Party or its Affiliate, that certain Party will notify the other Party and
will
take such actions to assure that the affected person does not take any action,
official or otherwise, and/or use any influence in connection with the other
Party’s business.
(b) Each
Party warrants, on its behalf and on behalf of its Affiliates, that they have
not and will not pay or offer, directly or indirectly, any commission or finders
or referral fee to any person or entity in connection with its activities
relating to this Agreement, unless it has obtained prior written agreement
thereto from the other Party.
(c) Each
Party, including its Affiliates, and all of its and their directors, officers,
shareholders, employees and agents, have conducted with respect to the
activities contemplated in this Agreement and shall during the term of this
Agreement conduct all of their activities in accordance with the U.S. Foreign
Corrupt Practices Act and the substantive provisions of the OECD Convention
on
Combating Bribery of Foreign Public Officials in International Business
Transactions dated 21 November 1997 as well as any amendments
thereto.
12.4 Governing
Law; Jurisdiction.
This
Agreement shall be governed by and construed in accordance with the law of
the
State of Delaware, without regard to its conflict of laws principles.
12.5 Recordkeeping
and Inspection.
During
the Term and for three (3) years thereafter, or such longer period as may be
required by law, the Parties shall keep and maintain reasonable records of
all
agreements, approvals and other activities relating to this Agreement. Without
limiting the relevant terms of any License pertaining to the subject matter
of
this Section 12.5, Dyadic may, at its expense, during regular business hours
and
with reasonable prior notice, examine, review, and inspect all facilities in
which Dyadic Technology is being practiced by or on behalf of ABRD and review,
audit and analyze ABRD’s records relating to this Agreement (in combination,
conduct an “Inspection”).
ABRD
may, at its expense, during regular business hours and with reasonable prior
notice, conduct an Inspection of all facilities in which the ABRD R&D
Program is being performed by or on behalf of Dyadic and review, audit and
analyze Dyadic’s records relating to this Agreement.
12.6 Severability.
The
provisions of this Agreement are severable, and the unenforceability of any
provision of this Agreement shall not affect the enforceability of the remainder
of this Agreement. The Parties acknowledge that it is their intention that
if
any provision of this Agreement is determined by a court to be unenforceable
as
drafted, that provision should be construed in a manner designed to effectuate
the purpose of that provision to the greatest extent possible under applicable
law.
12.7 Construction
of Agreement.
The
Parties acknowledge that they thoroughly have reviewed this Agreement and
bargained over its terms. Accordingly, this Agreement shall be construed without
regard to the Party or Parties responsible for its preparation and shall be
deemed to have been prepared jointly by the Parties.
12.8 Cumulative
Rights and Remedies.
The
rights and remedies provided in this Agreement and all other rights and remedies
available to either Party at law or in equity are, to the extent permitted
by
law, cumulative and not exclusive of any other right or remedy now or hereafter
available at law or in equity. Neither asserting a right nor employing a remedy
shall preclude the concurrent assertion of any other right or employment of
any
other remedy, nor shall the failure to assert any right or remedy constitute
a
waiver of that right or remedy.
12.9 Assignment.
Either
Party may transfer or assign its rights and obligations under this Agreement
or
any License to any Affiliate or to any Person who purchases from that Party
all
or substantially all of the assets of the business to which this Agreement
pertains (and in the case of ABRD, the ABRD Affiliate owning or operating the
ABRD Facility shall have the right to pledge its License to secure funded
indebtedness). No other assignment of this Agreement, or any rights or
obligations thereunder may be made by either Party without the consent of the
Party, which consent shall not be unreasonably withheld or delayed. Subject
to
the foregoing, this Agreement shall be binding upon and inure to the benefit
of
the Parties and their respective successors, permitted assigns and legal
representatives.
12.10 Headings.
All
headings in this Agreement are included solely for convenient reference, are
not
intended to be full and accurate descriptions of the contents of this Agreement,
shall not be deemed a part of this Agreement, and shall not affect the meaning
or interpretation of this Agreement.
12.11 Publicity.
Subject
to Dyadic’s SEC reporting responsibilities (in respect of which each Party shall
furnish the other reasonable advance notice to the extent practicable or not
in
violation of applicable securities laws), neither Party shall, without the
prior
written approval of the other Party, (i) advertise or otherwise publicize
the existence or terms of this Agreement or any other aspect of the relationship
between the Parties, or (ii) use the other Party’s or its Affiliates or any
or their employees’ names or any trade name, trademark or service xxxx belonging
to the other Party in press releases or in any form of advertising.
12.12 Amendments.
This
Agreement may be modified or amended only by written agreement of the
Parties.
12.13 English
Language.
The
Parties shall use the English language in all communications relating to this
Agreement, and the English language version of this Agreement signed by the
Parties shall control over any and all translations.
12.14 Entire
Agreement.
This
Agreement, together with the SPA, constitutes the entire agreement between
the
Parties concerning the subject matter of this Agreement and supersedes all
prior
agreements between the Parties concerning the subject matter
hereof.
12.15 Counterparts.
This
Agreement may be executed in any number of counterparts, each of which when
so
executed shall be deemed to be an original and all of which when taken together
shall constitute this Agreement.
12.16 Survival.
Article
I (relating to definitions), Section 2.1 (to the extent the terms thereof
provide for obligations to be performed following the expiration of the
Agreement), Article IV (relating to ownership of intellectual property),
Article VI (relating to Confidential Information), Section 7.2 (pertaining
to
warranty disclaimers), Article VIII (relating to indemnification), Sections
9.4,
9.5, 9.6 and 9.8, Article X (relating to dispute resolution), Article XI
(relating to notices), Article XII (relating to miscellaneous matters) of this
Agreement shall survive the expiration or termination of this Agreement in
any
event. Article V (relating to ABRD commercial rights) shall survive the
expiration or termination of this Agreement except in the instance where this
Agreement was terminated on account of ABRD’s default pursuant to the provisions
of Section 9.2 hereof.
IN
WITNESS WHEREOF, the parties hereto have caused this R&D Agreement to be
duly executed by their respective authorized signatories as of the date first
indicated above.
DYADIC
INTERNATIONAL (USA), INC.
By: /s/
Name:
Xxxx X. Xxxxxxxx
Title:
Chief Executive Officer
ABENGOA
BIOENERGY R&D, INC.
By: /s/
Name:
Xxxxxxxxxxx X. Xxxxxxxx
Title:
Vice President
EXHIBIT
A1
Five (5) pages have been omitted from this Exhibit A as a result of the
confidential portions omitted herefrom and filed separately with the Commission.
R&D
Plan
ABRD
/ DIL
26
Oct 2006
Capitalized
terms not expressly defined herein shall have the meanings assigned them in
the
R&D Agreement
1.0
R&D Objective
****
2.0
Background
****
3.0
Scope of Work
****
3.1
****
3.1.1
****
****
3.1.2
****
****
3.1.3
****
****
3.2
****
3.2.1
****
****
3.2.2
****
****
3.2.2.1
****
****
3.2.2.2
****
****
| 3.2.3 |
****
|
****
3.3
****
| 3.3.1 |
****
|
****
3.3.2
****
****
3.3.2.1
****
****
3.3.2.2
****
****
3.3.2.3
****
****
| 3.3.3 |
****
|
****
| 3.4 |
****
|
| 3.4.1 |
****
|
****
| 3.4.2 |
****
|
****
| 3.4.3 |
****
|
****
3.5
****
| 3.5.1 |
****
|
****
| 3.5.2 |
****
|
****
| 3.5.3 |
****
|
****
| 4. |
Resources
|
****
| 5. |
R&D
Steering Committee
|
****
| 6. |
Milestones
|
****
7.
Project Budget:
****
179568405v2
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