EXHIBIT 10.3
December 12, 2001
Mr. Xxxxx Xxxxxxxx
CEO
BionSoil, Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Re: Agreement between BionSoil, Inc. ("Bion") and The
Scotts Company ("Scotts")
Dear:
Thank you again for the continuing discussions on potentially working
with Xxxxxx to utilize use of your BionSoil and Bion Fertilizer technologies
(the "Technology") in certain markets. Xxxxxx is excited about the potential
of a relationship between Xxxx and Xxxxxx and we hope you share our
excitement. We propose that this letter (this "Letter Agreement") serve as
Xxxxxx' and Xxxx's mutual agreement with respect to Bion granting to Xxxxxx an
exclusive right to evaluate the Technology for use in the markets described
herein, as well as Bion and Xxxxxx' agreement to work together to develop a
mutually beneficial business relationship for the sale of products
incorporating the Technology on an exclusive basis by Xxxxxx in these markets.
In order to formalize our discussions, Xxxx and Xxxxxx hereby agree as
follows:
1. EXCLUSIVITY. Bion hereby grants to Xxxxxx and Xxxxxx hereby accepts
grant of the exclusive right during the Exclusivity Period (as defined herein)
to evaluate the Technology worldwide in the following markets (individually, a
"Market" and collectively, the "Markets"): consumer lawns and gardens
(including, without limitation, lawn, fertilizer and combination products,
garden fertilizer and soil enhancement products (including, without
limitation, garden soil and potting mix)); provided however, that Bion shall
be able to: a) continue its sale and marketing of BionSoil and Bion Fertilizer
products within New York State and the New York Metropolitan area, and b)
proceed with its project with The Bronx Zoo to develop and market Bion
products based on zoo waste streams. Exclusivity Period means a period of
twelve (12) months from the date this Letter Agreement becomes effective.
Such Exclusivity Period may be extended by mutual written agreement of Xxxx
and Xxxxxx. During the Exclusivity Period, Xxxxxx will conduct efficacy
testing, research and development and consumer research on the Technology and,
if the results of such testing and research are satisfactory to Scotts, will
work with Bion to develop a business plan for selling products utilizing the
Technology into the Markets.
Xxxxxx and Bion agree that the purpose of the Evaluation Period is (i) to
permit Xxxxxx to evaluate the technology to use by Xxxxxx in the Markets on an
exclusive basis and (ii) to enable Bion and Xxxxxx to share both technology
performance test data and consumer and other market research data and (iii) to
permit the parties to develop a mutually acceptable business plan and related
agreements to effectuate Scotts' utilization of the Technology in the Markets.
Page 1
2. TERM AND TERMINATION. Subject to earlier termination as provided
herein, this Letter Agreement shall commence on December 12, 2001 and shall
continue for an initial period ending at the close of business on December 12,
2002, (the "Initial Term"). Upon expiration of the Initial Term and any
Renewal Term (as defined herein), this Letter Agreement may be renewed for
successive additional periods of time (each a "Renewal Term" and together with
the Initial Term, the "Term") by written agreement of the parties.
3. TECHNOLOGY. Technology includes raw materials, products and
formulations today, and all future enhancements to this technology and these
raw materials, products and formulations during the term of this agreement and
subsequent agreements covering the Technology and its utilization by Xxxxxx.
4. BUSINESS PLAN. As described in Paragraph 1 above, during the
Exclusivity Period Bion and Xxxxxx agree to work together in good faith to
develop a mutually beneficial business plan for the sale of products utilizing
the Technology into the Markets on an exclusive basis by Xxxxxx. Xxxx and
Xxxxxx further agree and acknowledge that they will be sharing certain
research and development information, including, for example, scientific data
from field testing and studies, in an effort to develop such mutually
beneficial business plan.
5. CONFIDENTIALITY. (a) For purposes of this Letter Agreement,
"Confidential Information" shall mean all information, other than publicly
available information or information otherwise expressly designated by the
disclosing party as non-confidential, which is directly or indirectly
disclosed to the recipient by the disclosing party or embodied in any products
covered by this Agreement, regardless of the form in which it is disclosed,
relating in any way to the disclosing party's products, patents, inventions,
procedures, business processes, business plans, marketing data, sales data,
methods, designs, strategies, plans, costs, pricing, profits, organization,
employees, agents or distributors.
(b) Each party acknowledges and agrees that all Confidential
Information is confidential and proprietary to the disclosing party. The
recipient agrees not to use any such Confidential Information during the Term
and for a period of two years thereafter for any purpose other than as
permitted or required for performance hereunder. The recipient further agrees
not to disclose or provide any of such Confidential Information to any third
party and to take all necessary measures to prevent any such disclosure by its
present and future employees, officers, directors, affiliates, agents,
dealers, subsidiaries, contractors, sub-distributors or consultants during the
Term and for a period of two years thereafter. Nothing herein shall prevent
the recipient from using, disclosing or authorizing the disclosure of any
Confidential Information (or part thereof) provided by the disclosing party,
to the extent such Confidential Information (i) is or becomes part of the
public domain by reason of acts not attributable to the recipient; (ii) is or
becomes available to the recipient from a source other than the disclosing
party which source has rightfully obtained such information and has no
obligation of non-disclosure or confidentiality to the disclosing party with
respect thereto; or (iii) is made available by the disclosing party to a third
party unaffiliated with the disclosing party on an unrestricted basis.
6. SURVIVAL. The provisions relating to Confidentiality shall survive
the termination or expiration of this Letter Agreement.
Page 2
7. ASSIGNMENT. This Letter Agreement shall be binding upon and inure to
the benefit of the respective successors and assigns (including successive, as
well as immediate, successors and assigns) of the parties hereto; provided,
however, that neither this Letter Agreement nor any right hereunder may be
assigned by either party without the prior written consent of the other party
hereto.
8. ENTIRE AGREEMENT. This Letter Agreement constitutes the full
exclusive understanding between the parties hereto with reference to the
subject matter hereof and no statements or agreements, oral or written, made
prior to or at the signing hereof shall vary or modify the written terms
hereof; and neither party shall claim any amendment, modification or release
from any provisions hereof, unless such agreement is in writing signed by the
other party and specifically stating it is an amendment to this Letter
Agreement.
Again, we are very excited about the opportunity to work with you on this
project. If this Letter Agreement accurately describes your understanding of
our relationship, please sign below and return a copy of this letter to me at
your earliest convenience. We look forward to hearing from you.
Very truly yours,
THE SCOTTS COMPANY
/s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
Senior Vice President
ACKNOWLEDGED, ACCEPTED AND AGREED:
By: /s/ Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title: President
Page 3
