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EXHIBIT 10.77
THIS AGREEMENT is made the 18th day of April 1996 BETWEEN:
(1) INNOVATIVE TECHNOLOGIES LIMITED, whose principal office is at Road Three,
Winsford Industrial Estate, Cheshire CW7 3PD ("IT"); and
(2) WILSHIRE TECHNOLOGIES INC., whose principal office is at 5441 Avenida
Encinas, Suite A, Carlsbad CA 92008, United States of America
("Wilshire").
WHEREAS:
(A) IT and Wilshire entered into a Product Development and Licence Agreement
for Gloves on 20 June 1993 ("the Glove Agreement").
(B) IT and Wilshire have agreed the following terms for the resolution of
certain issues between them concerning the Glove Agreement.
IT IS HEREBY AGREED as follows:-
1. DEFINITIONS
Terms used in this Agreement will have the same meanings as given to them
in Clause 1 of the Glove Agreement. In addition, in this Agreement:-
"Wound Care Agreement" means the Product Development and Licence
Agreement for Wound Care products entered
into by IT and Wilshire on 25 May 1993;
"Premises" means the premises occupied by Wilshire, at
the premises of IT at Winsford Industrial
Estate, Cheshire, which are the subject of an
occupational lease by Vale Royal Borough
Council to IT; and
"Related Agreement" means the Agreement between IT and Wilshire
of the same date as this Agreement, in respect
of certain matters concerning the Wound Care
Agreement dated 25 May 1993.
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2. WILSHIRE PAYMENT
In consideration for the provisions of Clause 4, Wilshire will pay to IT
the sum of (Pound Sterling)60,000 (sixty thousand pounds sterling), by
wire transfer to IT's bank account in the UK notified by IT, within 7
days of the date of this Agreement, which payment will constitute the
second instalment of the Up-Front Payment required under Clause 4.1 of
the Glove Agreement. The parties agree that this sum will be treated as
paid immediately by set off against the payment of the same amount due
from IT to Wilshire under the Related Agreement.
3. RENTAL FOR PREMISES
With immediate effect the payment arrangement for rent on the Premises
will be modified such that all future payments of rental by Wilshire
should be made quarterly in advance, the first payment to be due on this
basis, which shall be in respect of the second quarter of 1996, to be
received by IT on or before whichever is the later of 1 April 1996 and
the fifth working day following the date of this Agreement.
4. LICENSED COMPONENTS
4.1 The parties confirm the payment period stated in Clause 10.4 of
the Glove Agreement, which requires payment by Wilshire to be
made on a 30-day term. Wilshire agrees that, if at any time
payments which are due are not received by IT within 35 days of
the date of IT's invoice, future orders for Licensed Components
by Wilshire will require payment of cash with order. For these
purposes IT will not invoice Wilshire prior to despatch. After
30 days of any period of cash with order, IT and Wilshire will
use reasonable endeavours to agree on the requirements to be met
for reinstatement of 30 day terms.
4.2 IT acknowledges that Clause 4.1 will not apply to payments for
those Licensed Components which can be demonstrated by Wilshire
not to comply, at the time of delivery to Wilshire, with the
necessary specification or quality standards agreed between
Wilshire and IT for supply by IT. The parties recognise that it
is essential, as a proper basis for future operation of the
Glove Agreement, for there to be an agreed specification for
Licensed Components to reflect the continuing quality
requirements implicit in the Glove Agreement to enable
manufacture of gloves of consistent satisfactory quality. IT and
Wilshire will use all reasonable endeavours in good faith to
agree on such a specification for
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the current Licensed Components (i.e. IT 325) as soon as
practicable and to commence this process IT agrees to provide to
Wilshire a draft proposed detailed specification as soon as
practicable. Such specification will provide for a time limit after
delivery within which Wilshire should advise IT of noncompliance
with specification.
4.3 With effect from January 1st, 1996 the price of the current
Licensed Components will be [Pound Sterling] 3 per Kg FOB IT
Winsford. The parties agree that thereafter the prices of Licensed
Components will be subject to review on an annual basis with effect
from 1 January in each year when, if requested by either party, the
parties will use all reasonable endeavours in good faith to agree
on variations to the current prices to reflect demonstrated
increases or decreases over the preceding year in IT's fixed and
variable costs of manufacturing the material.
5. WAIVERS AND RELEASES
5.1 In consideration for the payment by Wilshire pursuant to Clause 2
and the other benefits to IT under this Agreement, IT hereby waives
and releases Wilshire from all obligations to pay royalties under
Clause 9 of the Glove Licence, minimum or otherwise, in respect of
the period (and in respect of sales within the period) up to 31
December 1996. This waiver and release will be conditional only on
the making by Wilshire of the payment due under Clause 2 and as
provided in Clause 7.1 below but otherwise will be final and
unconditional with immediate effect.
5.2 In addition, each party hereby acknowledges that it has and will
have no claim against the other arising out of any breach or
default in respect of any of the provisions of the Glove Agreement
prior to the date of this Agreement and hereby waives and releases
the other party hereto from any claims, proceedings, demands
whatsoever of any nature, whether or not accrued at the date of
this Agreement, arising out of or in connection with the Glove
Agreement prior to the date of this Agreement. The parties'
obligations under this Agreement are accepted in full and final
settlement of any rights or claims whatsoever which either party
may have arising out or in connection with the Glove Agreement in
respect of the period up to the date of this Agreement. These
waivers and releases will include without limitation the
cancellation and release by IT of Wilshire from the purported
Notice of Termination of the
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Glove Agreement issued by IT on 3 November 1995 and the waiver and
release of IT from any claims by Wilshire arising from supplies of
Licensed Components prior to the date of this Agreement.
6. SUBSISTENCE OF GLOVE AGREEMENT
Subject to the express provisions of this Agreement, the Glove Agreement
will remain in full force and effect.
7. GENERAL
7.1 This Agreement is conditional on the Related Agreement being
executed and taking effect on the same date as this Agreement.
In the event that the Related Agreement is not excluded on the
same date as this Agreement, this Agreement will be of no effect.
7.2 This Agreement supersedes all prior agreements, understandings and
communications between the parties whether oral or in writing in
relation to the termination of the Glove Agreement.
7.3 This Agreement will be governed by and construed in accordance with
English Law.
7.4 This Agreement may be in any number of counterparts each of which
when executed and delivered will be an original but all the
counterparts together will constitute one and the same instrument.
AS WITNESS the hands of the duly authorised representatives of IT and Wilshire
the day and year first above written.
SIGNED by D.K. GILDING )
) /s/ D.K. Gilding
on behalf of INNOVATIVE TECHNOLOGIES LIMITED )
SIGNED by STEPHEN P. SCIBELLI )
) /s/ Stephen P. Scibelli
on behalf of WILSHIRE TECHNOLOGIES INC. )
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