AGREEMENT
THIS AGREEMENT is made and entered into this Twenty-sixth (26th) day of
February, 1996 by and between LANDEC CORPORATION, a corporation of California,
having its principal place of business at 3603 Haven Avenue, Menlo Park,
California 94025, U.S.A. (hereinafter called "LANDEC") and NITTA CORPORATION, a
corporation of Japan, having its principal place of business at 8-12. Hommachi
1-chome. Chuo-ku. Osaka. 541. Japan (hereinafter called "NITTA"),
WITNESSETH:
WHEREAS, LANDEC is engaged in development, manufacture, use and sale of
Adhesives and owns and controls patents and know-how therefor; and
WHEREAS, NITTA is engaged in development, manufacture and sale of
chemicals including adhesives and other industrial products and possesses
experience in connection therewith; and
WHEREAS, NITTA desires to manufacture and sell products made using
LANDEC's know-how and/or patents and LANDEC is willing to grant a right and
license thereto to NITTA.
NOW, THEREFORE, in consideration of the mutual covenants and premises
contained herein, both parties have agreed as follows:
1 ARTICLE 1 DEFINITIONS
1.1 The following terms as used herein shall have the meanings set
forth below:
1.1.1 "Adhesives" shall mean temperature sensitive adhesives
containing side-chain crystallizable polymer, which shall include LANDEC's
proprietary adhesives such as XXXXXXXXX XXXXXXXXXXXXX Adhesives as explained in
detail in Appendix 1 hereof.
1.1.2 "Patents" shall mean those patents and patent
applications listed in Appendix 2 and patents issuing from the patent
applications listed in Appendix 2 and any patents covering new improvements to
the Licensed Technology and within the claims of the patents listed in Appendix
2, provided such improvement is invented by LANDEC while NITTA is funding R&D at
LANDEC or paying royalties to LANDEC pursuant to Article 4.
1.1.3 "Know-How" shall mean any and all technology, trade
secrets, non-patented improvements and other confidential information relating
to processes, compositions, fabrications, manufacturing, scale-up and uses of
the Adhesives which LANDEC owns or controls and has the right to freely dispose
of while NITTA is funding R&D at LANDEC or paying royalties to LANDEC pursuant
to Article 4.
1.1.4 "Licensed Technology" shall mean Patents and/or
Know-How.
1.1.5 "Subject Adhesives" shall mean the Adhesives
incorporating, made with or using all or part of Licensed Technology.
1.1.6 "Territory" shall mean Asian countries as listed in
Appendix 3.
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1.1.7 "Field" shall mean medical applications of Subject
Adhesives in the following product categories which are defined in Appendix 4:
* XXXXXXXXXXXXXXXXXXXXXXXX * XXXXXXXXXXXXX
* XXXXXXXXXXXXXXXXXXXXX * XXXXXXXXXXXXXXXXX
* XXXXXXXXXXXXXX * XXXXXXXXXXXXXXXX
* XXXXXXXXXXXXXX * XXXXXXXXXXXXXXXXX
* XXXXXXXXXXXXX * XXXXXXXXXXXXXXXX
* XXXXXXXXXXXXXXXXXXXX * XXXXXXXXXXXXXXX
* XXXXXXXXXXXXXXXXXXXX
Other product categories will be added by mutual consent. The parties will
discuss inclusion or exclusion of any product regarding which there is
uncertainty as to its being in the Field.
1.1.8 "Products" shall mean:
(i) Subject Adhesives themselves which are sold by
NITTA in unincorporated form or consumed by NITTA in manufacturing NITTA
products such that the properties and benefits of Subject Adhesives are not
evident to customer;
(ii) Tapes, films, coated substrates and other
products incorporating Subject Adhesives such that the Subject Adhesives add
value to the product and the user directly receives the benefits of Subject
Adhesives; and
(iii) Tapes, films, coated substrates and other
products incorporating Subject Adhesives which are sold in conjunction with
components or parts which components or parts have significant intrinsic value
to the customer.
(iv) Adhesive coated intermediates (semi-finished
goods, coated substrates in sheets or rolls) incorporating Subject Adhesives
which are sold to customers who will convert such intermediates into final
products.
1.1.9 "NITTA's Subsidiaries" shall mean the corporations of
which NITTA or the NITTA family owns fifty percent (50%) or more of the
outstanding stock.
1.1.10 "Net Sales" shall mean the gross invoice price of the
Products less i) credits for products returned, quantity and other discounts,
and ii) charges for packaging, shipping, insurance, and sales taxes which are
separately identified and invoiced and paid by the customer.
1.1.11 "Fair Market Value" shall mean the net invoice price of
the Products which NITTA would receive from an unaffiliated third party in an
arm's length sale of the Products of the same type and grade in the same
quantity and at the same time and place of use or sale.
1.1.12 "Effective Date" shall mean the date and year upon
which this Agreement is executed.
1.1.13 "Commercial Launch" shall mean the date when the
accumulated Net Sales and Fair Market Value shall reach XXXXXXXXXXX Japanese Yen
((Y)XXXXXXXXX).
1.1.14 Development Program shall have the meaning put forth in
Article 3.
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2 ARTICLE 2 GRANT OF LICENSES
2.1 In accordance with the provisions provided herein, LANDEC grants to
NITTA an exclusive license under the Licensed Technology within the Field to
make and have made Subject Adhesives in the Territory.
2.2 LANDEC also grants to NITTA an exclusive license under the Licensed
Technology within the Field to use and sell Subject Adhesives in the Territory.
2.3 NITTA shall have the right to grant sublicenses to NITTA's
Subsidiaries with prior written notice to LANDEC and on the condition that NITTA
agrees to guarantee such NITTA Subsidiaries' fulfillment of the obligation under
this Agreement.
2.4 NITTA shall not nor shall NITTA allow its distributors or its
customers to resell or transfer the Subject Adhesives themselves knowingly in
unincorporated form outside the Territory, or in forms such that the user who
resides outside the Territory is able to directly utilize the Subject Adhesives
benefits and properties.
2.5 NITTA will have the right to use subcontractors to perform adhesive
coating and other conversion processes on NITTA's behalf as long as such
subcontractors agree to comply with the Confidentiality provisions set forth in
Article 10 of this Agreement.
3 THE DEVELOPMENT PROGRAM
3.1 LANDEC and NITTA anticipate the need for LANDEC to provide
assistance and support to NITTA's research and development regarding the Subject
Adhesives. Within fourteen (14) days after the Effective Date, the Parties will
mutually agree on a written Development Program. The "Development Program" shall
mean work performed jointly or independently by LANDEC and NITTA pursuant to
Article 3. Such work shall be funded by NITTA as set forth in Article 3.2 and
shall encompass the following:
i) Research and development regarding Subject Adhesives for
applications in the Field as well as for industrial applications of Subject
Adhesive which were licensed to NITTA in a prior agreement dated March 14, 1995
for which development support has been provided by LANDEC since January 1, 1996;
ii) Polymer synthesis, adhesive formulation and coating of
substrates by LANDEC; and
iii) Testing, polymer scale-up and manufacture of Products by
NITTA.
LANDEC agrees to provide NITTA with reasonable quantities of research sample
polymers and pilot scale coated samples at no additional charge as part of the
Development Program. The amount of such samples shall be mutually agreed in the
Development Program.
3.2 NITTA shall provide LANDEC with funding for the amount of the
Development Program at the rate of XXXXXXXXXXXXX dollars ($XXXXX) per year for
the first XXXXX years after the Effective Date reflecting XXXX man-years per
year at LANDEC's annual cost-per-scientist of XXXXXXXXXXXXXXXXXX dollars
($XXXXX). Such funding shall be made in two installments of XXXXXXXXXXXXXXX
dollars ($XXXXX) each. The first such installment shall be paid to LANDEC within
fourteen (14) days of the Effective Date and shall be retroactive to January 1,
1996. The second installment shall be paid on January 1, 1997.
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4 ARTICLE 4 COMPENSATION
4.1 In consideration of the rights and licenses granted hereunder, and
in addition to the funding set forth in Article 3.2, NITTA shall pay to LANDEC a
non-refundable sum of XXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXX U.S. Dollars (U.S.
$XXXXXX) (not to be less than U.S. $XXXXXX net after deduction of the Japanese
withholding taxes) as an initial fee under this Agreement.
4.2 NITTA shall also pay to LANDEC a running royalty at the rate of
XXXX percent (XX%) of Net Sales of Products when sold to third parties other
than NITTA's Subsidiaries and NITTA, or of Fair Market Value when used by NITTA
or sold to NITTA's Subsidiaries or NITTA. Such royalty on Products shall be
payable until XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX or XXXXXXXX years from
Commercial Launch of such Product, whichever is longer.
4.3 For the sale of any Product in a given calendar year the
manufacture, use or sale of which does not come within the scope of any licensed
Patent in the country in which such Product is manufactured, used or sold,
LANDEC agrees to discuss with NITTA a XXXXXXXXXXXXXX in such country based on
the XXXXXXXXXXXXXXXXXXXXX as measured by XXXXXXXXXXXXXXXXXX.
5 ARTICLE 5 PAYMENTS AND REPORTS
5.1 Payment of initial fee in accordance with Article 4.1 shall be made
within XXXXXXXXXXXXX days after the Effective Date of this Agreement.
5.2 Payments of running royalty shall be made quarterly within XXXXX
days after the end of each calendar quarter each year for the Products sold or
used during the applicable calendar quarter. The last running royalty payment
hereunder shall be made within XXXXXXX days from the termination date hereof,
and the Products made during the term of this Agreement but remaining unsold or
unused at its termination shall be deemed to have been sold on the last day of
the term of this Agreement and the running royalty shall be paid on such
Products in accordance with this Article 5.
5.3 All the payments to be made to LANDEC hereunder shall be net after
deducting withholding taxes to be imposed by the tax authority of Japan at the
rate specified by the government authority, and NITTA shall send LANDEC
appropriate tax certificates issued by the tax authority of Japan on such
withholding taxes.
5.4 The payments due under Articles 3, 4 and this Article 5 hereof
shall be made to LANDEC by telegraphic transfer in U.S. Dollars to the bank
account designated by LANDEC. The running royalties due under Articles 5.3
hereof shall be initially calculated in the currency used in the sales of the
Products or the currency of the country where the Products are used, and then
converted into U.S. dollars at the prevailing rate of exchange as used by
Sakura, Sanwa or Tokai Banks on the day on which the respective payments are
made.
5.5 NITTA shall pay to LANDEC interest calculated at the rate of one
and one-half percent (1.5%) per month for the days of delay from the due date on
any payment not received by LANDEC on the due date.
5.6 Within sixty (60) days from the last day of each calendar quarter
respectively of each year, NITTA shall prepare and send to LANDEC a written
statement showing in detail the production, sale and use of Products and the
royalty amounts to be paid for the applicable calendar quarter.
6 ARTICLE 6 INSPECTION OF ACCOUNTS
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6.1 NITTA shall keep true and accurate records and books of account, in
accordance with generally accepted accounting principles, containing all the
data reasonably required for the full computation and verification of the
running royalty payable under Article 5 in connection with any Product hereof
for three (3) years after the sale or use of such Product. NITTA shall permit
LANDEC or a certified public accountant designated by LANDEC and approved by
NITTA (but whose approval shall not unreasonably withheld) upon reasonable
notice to inspect any or all parts of such records and books of account and to
make copies thereof at normal business hours during the term of this Agreement
and within three (3) years after the termination thereof. LANDEC shall bear the
expenses associated with such inspection, except in the case that such
inspection reveals underpayment of royalties by greater than 5% in which case
NITTA shall reimburse LANDEC for the expenses associated with the inspection.
7 ARTICLE 7 GRANT-BACK
7.1 NITTA grants to LANDEC a XXXXXXXXXXXXXXXXX license to utilize
NITTA's XXXXXXXXXXXXXXXXXXXX (i) XXXXXXXXXXXXXXXXXXXXX and (ii) XXXXXXXXXXX
XXXXXXXXXXXXXX.
7.2 NITTA grants to LANDEC an XXXXXXXXX license with the XXXXXXXXX
XXXXXXXX to utilize NITTA's patented and non-patented (know-how) improvements to
Licensed Technology XXXXXXXXXXXX. The royalty will be XXXX percent (XX%) of
LANDEC's net sales of products using such patented improvements.
8 ARTICLE 8 MEETINGS
8.1 NITTA and LANDEC will meet at least twice per year to discuss
technical and commercial progress and information exchange relating to the
Licensed Technology in the initial period of two (2) years after the Effective
Date during the term of this Agreement at the expense of each respective party
and may meet at any time both of the parties should so desire and agree during
the remaining term of this Agreement.
9 ARTICLE 9 SUPPLY OF SUBJECT ADHESIVES
9.1 If NITTA decides in the future not to manufacture Subject
Adhesives, NITTA will give LANDEC the first opportunity to be NITTA's supplier.
If LANDEC is supplying Subject Adhesives to NITTA, the parties will negotiate
the method of payment such that a single method of paying royalties and supply
payments is used.
10 ARTICLE 10 SECRECY OBSERVANCE
10.1 Except as expressly set forth in 2.3 and 7.2, any Know-How to be
exchanged hereunder between LANDEC and NITTA shall be only for the recipient's
use for the purpose of this Agreement, and the recipient shall keep such
information in strict confidence during the term of this Agreement and for three
(3) years thereafter and shall not disclose the same to any third parties,
provided, however, such obligations shall not apply if the recipient can provide
documented proof that:
10.1.1 Such information already is known to the recipient at
the time of the disclosure by the disclosing party to the recipient.
10.1.2 Such information had already been made public and
entered the public domain at the time of disclosure by the disclosing party to
the recipient; or has become public and entered the public domain since the time
of disclosure by the disclosing party to the recipient without any cause
attributable to the recipient;
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10.1.3 Such information has been lawfully obtained by the
recipient since the time of disclosure by the disclosing party to the recipient
from a third party under no obligation of secrecy to the disclosing party;
10.1.4 Such information has been independently acquired or
developed by the recipient without reference to any information disclosed by the
disclosing party hereunder since the time of disclosure by the disclosing party
to the recipient; or
10.1.5 Such information has been disclosed by the disclosing
party to any third party without any obligation of secrecy.
11 ARTICLE 11 BANKRUPTCY
11.1 The parties acknowledge that the license rights granted to NITTA
in Licensed Technology are protected by Section 365 (n) of the U.S. Bankruptcy
Code. In the event that any bankruptcy court rejects this Agreement, NITTA will
have the right to exercise all rights provided by Section 365 (n) including the
right to require the trustee to deliver to NITTA all tangible embodiments of all
Licensed Technology pertaining to the Subject Adhesives.
12 ARTICLE 12 TERMINATION
12.1 This Agreement shall become effective as of the Effective Date.
NITTA shall have the right to terminate this Agreement with 90 days written
notice to LANDEC.
12.2 In case when this Agreement should expire in accordance with
Article 4.2, NITTA then shall have a fully paid up perpetual right to utilize
Licensed Technology as to such Product.
12.3 NITTA shall make a reasonable effort to commercialize the
Products. If NITTA has not launched a Product containing or utilizing any of the
Subject Adhesives in all countries within the Territory within five (5) years
after the Effective Date of this Agreement, the Parties shall negotiate a
modification to the Territories such that NITTA's license hereunder with respect
to countries in which no product has been launched or royalty has been paid
shall become non-exclusive or revoked.
12.4 Either party may terminate this Agreement by written notice of its
intention to terminate on a date therein specified not less than thirty (30)
days after the date of giving such notice, if the other party shall:
12.4.1 be in default in the performance of any of the
provisions of this Agreement on its part to be performed and shall fail to
remedy or correct such default within thirty (30) days after the receipt of such
notice from the other party specifying the event of default; or
12.4.2 become insolvent or go into liquidation or receivership
or be admitted to the benefits of any procedure for the settlement of debt or be
declared bankrupt or be dissolved.
No such termination shall affect any right accrued at the time of termination or
discharge the defaulting party from any liability then existing to the other
party, provided, however, that (i) if NITTA is the party whose default,
insolvency, liquidation or receivership has caused such termination then NITTA
shall not have any right or license to use specifically identified trade secrets
and the Licensed Technology (with the exception of Know-How) after the
termination of this Agreement, or (ii) if LANDEC is the party whose default,
insolvency, liquidation or receivership has caused such termination then LANDEC
shall not have any right or license to use NITTA's specifically identified trade
secrets and patented improvements to the
6
Licensed Technology (with the exception of know-how) pursuant to Article 7
hereof after the termination of this Agreement.
12.5 Notwithstanding the other provisions of this Article 12, the
provisions of Articles 3, 4, 5, 6.1, 7 (only to the extent that patented and
non-patented improvements have already been granted to LANDEC and for which
LANDEC is paying a royalty to NITTA), 10, 12.2, 12.5, 13.1, 17.1, 18.1, 19.1 and
21 shall survive the termination or expiration of this Agreement.
13 ARTICLE 13 WARRANTY
13.1 LANDEC HEREBY REPRESENTS AND WARRANTS THAT (WITH THE EXCEPTION OF
INFORMATION LISTED IN APPENDIX 5) AS OF THE EFFECTIVE DATE IT IS NOT CURRENTLY
AWARE OF ANY THIRD PARTY PATENT OR PATENTS WHICH WOULD BE INFRINGED BY THE
MANUFACTURE, USE OR SALE OF SUBJECT ADHESIVES. EXCEPT AS SET FORTH IN THE
PRECEDING SENTENCE, LANDEC MAKES NO REPRESENTATION OR WARRANTY THAT THE
MANUFACTURE, USE OR SALE OF ANY SUBJECT ADHESIVES OR PRODUCTS BY NITTA DOES NOT
INFRINGE ANY PATENT OR INTELLECTUAL PROPERTY RIGHT HELD BY THE THIRD PARTIES,
AND LANDEC SPECIFICALLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE. NITTA shall indemnify and hold LANDEC harmless from
any claim, liability, expense or damages arising from NITTA's manufacture, use,
sale or other disposition of the Products.
14 INFRINGEMENT OF PATENTS
14.1 Notification of Infringement. Each party shall advise the other
promptly upon its becoming aware of any third party infringement of a Patent.
14.2 Action by Landec. Landec agrees, within reasonable business
judgment and at its own discretion, to promptly take such action as is required
to restrain such infringement. NITTA shall cooperate fully with LANDEC at
NITTA's expense in LANDEC's attempt to restrain such infringers. NITTA may be
represented by counsel of its own selection at its own expense at any suit or
proceeding brought by LANDEC to restrain such infringement provided that such
representation of NITTA shall be subject to LANDEC's overall control of such
suit or proceeding. LANDEC shall bear the expense of its prosecution of any such
suit or suits and shall obtain all benefits of the recoveries from such suit or
suits, whether by judgment, award, decree or settlement.
14.3 Action by NITTA. If within sixty (60) days of NITTA's advising
LANDEC of a third party infringement of a licensed patent in any Field in which
NITTA then has a license to operate under this Agreement, Landec fails to
institute an infringement suit that NITTA feels is reasonably required, NITTA
shall have the right, at its own discretion, within thirty (30) days thereafter,
to institute an action for infringement. It is agreed that in such event NITTA
can institute any such suit in the names of both parties to this Agreement and
that NITTA shall bear the expense of any such suit or suits and shall obtain all
of the benefits of the recoveries from such suit or suits, whether by judgment,
award, decree or settlement. Should NITTA bring any such suit, LANDEC shall
cooperate in all reasonable ways with NITTA in any such suit or suits at
LANDEC's expense. LANDEC may be represented by counsel of its own selection at
its own expense.
14.4 Mutual Action. Notwithstanding Articles 14.1 and 14.2, if the
parties agree to mutually share expenses and to pursue an infringement suit
together, they shall (a) share in any and all benefits in the recovery from such
suit, whether by judgment, award, decree or settlement, and (b) agree on the
lead plaintiff, selection of counsel and other litigation strategy matters.
7
15 INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS
In the event that (i) NITTA's use as set forth in this Agreement of any item or
information transferred or licensed under this Agreement (including, without
limitation, the Patents or Licensed Technology) is held by a court of competent
jurisdiction to infringe any patent or other intellectual property rights of any
other party, and (ii) such infringement prevents NITTA from selling Products as
contemplated hereunder, then after a final, non-appealable judgment or
settlement has been reached and only to the extent that NITTA is required to pay
royalties to a third party, NITTA shall offset against future royalties under
this Agreement derived from the country or jurisdiction of such Action any
future royalties that NITTA is obligated to pay to any third party. NITTA shall
be responsible for, and shall not offset damages awarded by a court or any
license fees negotiated with the other party.
Notwithstanding any credits or offsets to the contrary, NITTA will pay at least
XXXXX percent (XX%) of the royalties which would otherwise be payable to LANDEC
under this Agreement.
NITTA shall be entitled to credit the amount of its documented, reasonable
out-of-pocket litigation costs paid by NITTA to third parties, including
attorneys' fees, as a result of any such action hereunder against royalties
derived from the country or jurisdiction of such action due to LANDEC under this
Agreement. NITTA agrees that royalties payable to LANDEC hereunder which are not
a subject of such action, such as, for example, Net Sales derived from other
countries shall be paid directly to LANDEC without any credits and shall not be
delayed or otherwise affected by such suit or action.
If as a result of any action, NITTA is the recipient of an award, settlement or
license fee, or royalty, XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX.
16 ARTICLE 16 ASSIGNMENT
16.1 This Agreement or any rights or obligations hereunder may not be
assigned or transferred by either of the parties without prior written consent
of the other party, provided, however, such consent shall not be unreasonably
withheld. This Agreement will bind and inure to the benefit of the parties and
their respective successors and permitted assigns.
17 ARTICLE 17 NOTICES
17.1 Any notice made or required hereunder shall be deemed sufficiently
given if made by registered mail (or its equivalent), or by telefax or telex and
confirmed by registered mail, properly addressed and sent to the recipient at
its designated address. All notices shall be deemed to have been sent on the
registered date and to have been received on the tenth (10th) business day
thereafter or when actually received, whichever is sooner. For purposes hereof,
the designated addresses of the parties shall be the addresses set forth below
or at such other address as such party shall have last designated by a writing
delivered to and received by the party giving notice. If to NITTA: Mr. Takuji
Watanabe, General Manager of R&D, NITTA Corp., 172 Ikezawa-cho, Yamato
Kohriyama-shi, Japan. If to LANDEC: Mr. Steven James, Vice President of Business
and Market Development, LANDEC Corporation, 3603 Haven Avenue, Menlo Park,
California 94025-1010, U.S.A.
18 ARTICLE 18 FORCE MAJEURE
18.1 Neither of the parties shall be liable for failure of performing
its obligation hereunder (except for payment of money) due to riot, act of God,
war, fire, flood, invasion, earthquake, epidemic, interruption of
transportation, embargo, explosion, strike, lockout or other labor troubles or
any other causes similar to the foregoing which are beyond the reasonable
control of the party and the performance of obligation hereunder shall be
suspended during, but no longer than, the existence of such cause.
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19 ARTICLE 19 GOVERNING LAW
19.1 This Agreement will be governed by and construed in accordance
with the laws of the State of California applicable to agreements entered into,
and to be performed entirely, within California between California residents and
without reference to conflict of laws principles.
20 ARTICLE 20 SETTLEMENT OF DISPUTES
20.1 Prior to the initiation of any litigation or other proceeding, the
parties will negotiate in good faith to resolve any dispute between them
regarding the Agreement. If such negotiations do not resolve the dispute to the
satisfaction of both parties, then the President of LANDEC and the appropriate
Executive Vice President of NITTA shall use their best efforts to resolve the
dispute prior to the initiation of any other proceeding. If they are unable to,
the dispute shall be finally settled by binding arbitration in Honolulu, Hawaii
under the Rules of Arbitration of the International Chamber of Commerce Court of
Arbitration, by one mutually acceptable arbitrator appointed in accordance with
said Rules. Judgment on the award rendered by the arbitrator may be entered in
any court having jurisdiction thereof. The arbitral proceedings and all
pleadings and written evidence shall be in the English language. Any written
evidence originally in a language other than English shall be submitted in
English translation accompanied by the original or true copy thereof.
21 ARTICLE 21 MISCELLANEOUS
21.1 The waiver, express or implied, by either party of any right
hereunder or any failure to perform this Agreement or breach hereof by the
party, shall not constitute or be deemed as a waiver of any other right
hereunder or of any other failure to perform this Agreement or breach hereof by
such other party, whether of a similar or dissimilar nature hereto.
21.2 If any article of this Agreement should be held unenforceable or
in conflict with the laws of any jurisdiction, the validity of the remaining
parts or articles shall continue to be valid, and both parties shall negotiate
in good faith to replace such unenforceable or conflicting part(s) or
articles(s) with a valid part(s) or article(s).
21.3 This Agreement contains the entire agreement and understanding
between the parties and merges and supersedes all prior discussions and writings
with respect to the subject matter hereof.
21.4 No modification or alteration of this Agreement shall be effective
unless they are made in writing and signed by duly authorized representatives of
both parties.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed in
duplicate by the duly authorized representatives of each party as of the day and
year first above written.
LANDEC CORPORATION NITTA CORPORATION
- - --------------------------------- ------------------------------------
By: Mr. Gary T. Steele By: Mr. Tetsushi Saito
Title: President and CEO Title: Executive Vice President
9
APPENDIX 1
Adhesives shall mean temperature responsive compositions comprising a polymer
derived from one or more monomers having
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX, and which side-chain units
are crystallizable, or an adhesive assemblage containing such a temperature
responsive polymer composition as an essential ingredient, compound or element.
Adhesives shall also mean Adhesives which have one or more of the following
properties:
XXXXX -- shall mean adhesives which below a preset temperature exhibit
substantially less tack, XXXXXXXXX peel force and wear time than conventional
adhesives and which exhibit tack, XXXXXXXXXX peel force (which when cooled is
not reduced by more than XX%) and wear time substantially equivalent to
conventional adhesives at or above the preset temperature.
XXXXXXXX -- shall mean adhesives which below a preset temperature exhibit
substantially less tack, XXXXXXXXXX peel force and wear time than conventional
adhesives and which exhibit tack, XXXXXXXX peel force (which when cooled is
reduced by more than XX%) and wear time substantially equivalent to conventional
adhesives at or above the preset temperature.
XXXXXXXX -- shall mean adhesives which below a preset temperature exhibit
equivalent or greater tack, XXXXXXXXXX peel force (which when warmed above the
preset temperature is reduced by more than XX%) and wear time than conventional
adhesives. XXXXXXXX comprises a XXXXXXXXXXXXXXXXX XXXXXXXXXXXX such as XXXXXX,
and from XXXXXXXXXX of a XX molecular weight side-chain crystallizable polymer
as described above.
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APPENDIX 2
LANDEC Licensed Patents
- - ------------------------------------ --------------------------------------------- ----------------------------------------
U.S.A. XXXXX XXXXX
- - ------------------------------------ --------------------------------------------- ----------------------------------------
USP 5,156,911 XXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXX
Skin-Activated Temperature XXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX
Sensitive Adhesive Assemblies XXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX
Issued on 10/20/92 XXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXX
Filed on 5/11/89 XXXX
XXXXXXXXXXXXXXXXXXXXX
- - ------------------------------------ --------------------------------------------- ----------------------------------------
USP 5,387,450 No Corresponding XXXXXXXX Patent Application No Corresponding XXXXXX
Temperature-Activated Adhesive Patent Application
Assemblies
Issued on 2/7/95
Filed on 2/27/92
- - ------------------------------------ --------------------------------------------- ----------------------------------------
USP 5,412,035 XXXXXXXXXXXXXXXXX No Corresponding XXXXXX
Pressure-Sensitive Adhesives XXXXXXXXXXXXXXXXXXXXXXX Patent Application
Issued on 5/2/95 XXXXXXXXXXXXXXXXXXXXXXX
Filed on 8/12/92 XXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXX
- - ------------------------------------ --------------------------------------------- ----------------------------------------
USP (Pending) XXXXXXXXXXXXXX No Corresponding XXXXXX
XXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXX Patent Application
XXXXXXXXX XXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXX
- - ------------------------------------ --------------------------------------------- ----------------------------------------
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APPENDIX 3
List of Asian Countries
1. XXXXXXXXX
2. XXXXX
3. XXXXXXXXX
4. XXXXX
5. XXXXXXXXXXXXXXXXXXXX
6. XXXXXXXX
7. XXXXXXXXXXXXXXXXXXXXXXXXX
8. XXXXXXXXXXX
9. XXXXXXXXX
10. XXXXXX
11. XXXXXXXX
12. XXXXXXX
The names listed above are for convenience only. The term, Asia, as used in this
Agreement, relates to the territories encompassed by the above countries as of
the date of this Agreement.
12
XXX = CONFIDENTIAL TREATMENT REQUESTED
APPENDIX 4
Definitions
XXXXXXXXXXXXXXXXXXXXXX.........................................XXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXX.................................................XXXXXXXXXXXXXXXXXXXXXXXXXX
XXXX
XXXXXXXXXXXXXX.................................................XXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXX..................................................XXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXX...................................XXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXX
XXXXXXXXXXXXX..................................................XXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXX....................................XXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXX............................................XXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXX
XXXXXXXXXXXXXXXXXXXX...........................................XXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXX..................................XXXXXXXXXXXXXXXXXXXXXXXXXX
13
XXX = CONFIDENTIAL TREATMENT REQUESTED
APPENDIX 5
Exceptions to Article 13 Warranty
1. XXXXXXXXXXXXXXXX patent application XXXXXXXX (which has been opposed
in XXXX by LANDEC with assistance from NITTA).
2. XXXXXXXXXXXXXXXXXXXXXX patent application XXXXXXXX and XXXXXXXX.
14
XXX = CONFIDENTIAL TREATMENT REQUESTED