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EXHIBIT 10.7
EXECUTION
EXCLUSIVE LICENSE AGREEMENT
In this Agreement, Interleukin Genetics, Inc., a Delaware Corporation
having its principal office at 135 Beaver Street, Waltham, MA 02452 (hereafter
"IG"), and Access Business Group International LLC, having offices at 7575
Fulton Street, East, Ada, Michigan 49355-0001 (hereafter "ABG"), agree as
follows:
Article I - Background
1.1 IG has developed technology relating to analyzing the effect of
variations in genes related to inflammation, including but not limited to the
effect of such variations on the risk for [ * ] and [ * ] disease, and
determining through genetic profiling, individuals who may benefit from specific
interventions to promote health, and owns the patents and patent applications
listed in Exhibit A hereto which disclose and claim certain aspects of the
technology.
1.2 ABG desires an exclusive license under the patents, patent
applications, and technology and know-how in accordance with the terms of this
Agreement and IG is willing to grant such a license.
1.3 ABG and IG have entered into a Research Agreement of even date with
this Agreement.
Article II - Definitions
2.1 "[ * ] Test" means an analytic test performed on a [
* * ] or [ * ] to [ * * ] response to the use of a
Dermagenomics Consumable or a Nutrigenomics Consumable.
2.2 "Control" or "Controlled" means (a) with respect to Technology (other
than Proprietary Materials) and/or Patent Rights, the possession by a party of
the ability to grant a license or sublicense of such Technology and/or Patent
Rights as provided herein without violating the terms of any agreement or
arrangement between such party and any third party and (b) with respect to
Proprietary Materials, the possession by a party of the ability to supply such
Proprietary Materials to the other party as provided herein without violating
the terms of any agreement or arrangement between such party and any third
party.
2.3 "Dermagenomics Consumable" means any nutritional supplement or skin
care product or topical delivery system which [ * * * * ] designed to produce a
positive health benefit and/or a positive appearance of skin (i) the
manufacture, use or sale of
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which would, absent the license or ownership rights granted to ABG hereunder and
under the Research Agreement, infringe any claim included in the Program Patent
Rights or the IG Patent Rights, or (ii) which makes a claim or claims of
efficacy or utility based upon the research conducted under the Research
Agreement or upon the use or results of a Dermagenomics Test.
2.4 "Dermagenomics Field" means products, compositions, apparatuses,
processes, and business services that [ * * * * * *
] and relate to skin care, including but not limited to, Dermagenomics
Consumables.
2.5 "Dermagenomics Product" means a Dermagenomics Consumable or a
Dermagenomics Test.
2.6 "Dermagenomics Test" means any genomic test used to determine
appropriate recipients of a Dermagenomics Consumable (i) the manufacture, use or
sale of which would, absent the license or ownership rights granted to ABG
hereunder and under the Research Agreement, infringe any claim included in the
Program Patent Rights or the IG Patent Rights, or (ii) which was developed,
modified or improved under the Research Agreement.
2.7 "Effective Date" means the date of signature of the last of the
parties to sign this Agreement.
2.8 "IG Patent Rights" means any Patent Rights with respect to IG
Technology and includes, but is not limited to, the patents listed on Exhibit A.
2.9 "IG Technology" means any Technology Controlled by IG as of the
Effective Date and during the term of this agreement that is used by IG, or
provided by IG for use, in the Research Program.
2.10 "Improvement" means any beneficial modification or variation of a
Licensed Product conceived and reduced to practice after the Effective Date, any
beneficial modification or variation of the Licensed Information transferred
pursuant to paragraph 5.1 conceived and reduced to practice after the Effective
Date, and/or any beneficial modification or variation of the IG Patent Rights
conceived and/or reduced to practice after the Effective Date.
2.11 "Licensed Field" means the Dermagenomics and Nutrigenomics Fields
for products or services and [ * ] Tests for use with Dermagenomics
and Nutrigenomics Consumables.
2.12 "Licensed Information" means the proprietary information, know-how
and trade secrets and Technology owned by IG as of the Effective Date which
relates to the Licensed Products or the subject matter of the IG Patent Rights
and IG Technology.
2.13 "Licensed Product" means any Dermagenomics Product or
Nutrigenomics Product.
2.14 "Licensed Territory" means the world.
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2.15 "Manufacturing Cost" means the direct manufacturing cost as
determined using ABG's customary accounting procedure, which will include
standard cost including material, labor, and overhead.
2.16 "Nutrigenomics Consumable" means any nutritional supplement,
nutraceutical compound or delivery system for a nutritional supplement or
nutraceutical compound that [ * * * * * * ] designed to produce a positive
health benefit (i) the manufacture, use or sale of which would, absent the
license or ownership rights granted to ABG hereunder or under the Research
Agreement, infringe any claim included in the Program Patent Rights or the IG
Patent Rights, or (ii) which makes a claim or claims of efficacy or utility
based upon the research conducted under the Research Agreement or upon the use
or results of a Nutrigenomics Test.
2.17 "Nutrigenomics Field" means products, compositions, apparatuses,
processes, and business services that [ * * * * * *
* ] and relate to nutritional supplements or nutraceutical compounds,
including but not limited to, Nutrigenomics Consumables.
2.18 "Nutrigenomics Product" means a Nutrigenomics Consumable or a
Nutrigenomics Test.
2.19 "Nutrigenomics Test" means any genomic test used to determine
appropriate recipients of a Nutrigenomics Consumable (i) the manufacture, use or
sale of which would, absent the license or ownership rights granted to ABG
hereunder or under the Research Agreement, infringe any claim included in the
Program Patent Rights or the IG Patent Rights, or (ii) which was developed,
modified or improved under the Research Agreement.
2.20 "Patent Rights" means the rights and interests in and to issued
patents and pending patent applications in any country, including all
substitutions, continuations, continuations-in-part, divisionals, supplementary
protection certificates, renewals, all letters patent granted thereon, and all
reissues, reexaminations, extensions, confirmations, revalidations,
registrations and patents of addition thereof.
2.21 "Program Invention" means any Technology, whether or not patentable,
which has utility in the development, manufacture, use or sale of any
Dermagenomics Product or Nutrigenomics Product and which is conceived and/or
first reduced to practice by employees of, or consultants to, either party, or
jointly by both parties, in the conduct of the Research Program.
2.22 "Program Patent Rights" means all Patent Rights claiming any
Program Invention.
2.23 "Proprietary Materials" means any tangible chemical, biological or
physical research materials that are furnished by or on behalf of one party to
the other party in connection with this Agreement or the Research Agreement,
regardless of whether such materials are specifically designated as proprietary
by the transferring party.
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2.24 "Related Company" means (a) a corporation, firm or association which,
or an individual who, owns a controlling interest in a party hereto by stock
ownership or otherwise, (b) a corporation, firm or association in which a party
hereto owns a controlling interest by stock ownership or otherwise, or (c) a
corporation, firm or association in which a controlling interest by stock
ownership or otherwise is owned by a corporation, firm or association which, or
an individual who, also owns a controlling interest in a party hereto by stock
ownership or otherwise.
2.25 "Research Agreement" means the research agreement executed between IG
and Access on even date with this Agreement.
2.26 "Research Program" means the program to be conducted by the Parties
as described in the Research Agreement.
2.27 "Technology" means and includes all inventions, discoveries,
know-how, improvements and Proprietary Materials, whether or not patentable,
including but not limited to, structural and functional information and other
data, formulations and techniques.
Article III - License Grant
3.1 IG hereby grants to ABG an exclusive license, with the right to grant
sublicenses, to practice in the Licensed Field under the IG Patent Rights, the
IG Technology and IG's interest in the Program Patent Rights and Program
Inventions and to make, have made, use, sell, offer for sale and import
Nutrigenomics Consumables and Dermagenomics Consumables in the Licensed
Territory and in the Licensed Field, and to sell Nutrigenomics Tests and
Dermagenomics Tests in the Licensed Territory and in the Licensed Field for the
term of this Agreement unless earlier terminated pursuant to the terms hereof;
provided, however, that such license does not include the right to perform or
sublicense others to perform Dermagenomics Tests or Nutrigenomics Tests.
Article IV - Consideration
4.1 ABG will pay to IG a royalty of [ * * * ]%) of the Manufacturing Cost
of Dermagenomics and Nutrigenomics Consumables sold by ABG and its Related
Companies.
4.2 A Dermagenomics or Nutrigenomics Consumable shall be considered sold
on the date of shipment or the date of an invoice, whichever is earlier.
4.3 ABG agrees that with respect to sales of Dermagenomics and
Nutrigenomics Tests where IG does not perform the test, IG is entitled to a
reasonable royalty from the third party testing facility in
exchange for the grant of a license by IG to the third party to enable the third
party to perform the tests, that royalty to be negotiated in good faith among
ABG, the third party and IG.
4.4 ABG agrees that with respect to sales of [ * ] Tests [ * * * ], IG is
entitled to a reasonable royalty from the third party testing facility in
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consideration of the development of the [ * ] Test by IG, that royalty to be
negotiated in good faith among ABG, the third party and IG.
4.5 In the event that ABG or a Related Company enters into a Sublicense
with respect to the rights granted herein, ABG will pay to IG a royalty equal to
[ * * * ]%) of the royalties or other consideration received from the
sublicensee. As used herein, "Sublicense" shall mean a royalty bearing license
between ABG and a non-ABG related company granting rights within the Licensed
Field under the IG Patent Rights, IG Technology, or the Program Patent Rights or
Program Inventions relating to Dermagenomics Consumables or Nutrigenomics
Consumables.
4.6 Within thirty (30) days after the end of each calendar quarter, ABG
shall send to IG a written report setting forth all Dermagenomics and
Nutrigenomics Consumables sold, the Manufacturing Cost thereof and the royalties
and other consideration received under Sublicenses during the preceding quarter,
or in the case of the first such report, since the effective date of the
Agreement and the calculation of royalties due hereunder. A final report shall
be sent to IG within sixty (60) days after termination or expiration of this
Agreement. All such reports shall be accompanied by the payment of the royalty
due.
4.7 ABG shall keep good and accurate books of account sufficient to permit
determination of the royalties due hereunder and shall make such books of
account available for inspection by an independent accountant designated by IG
and reasonably acceptable to ABG. Such inspections shall be no more frequent
than once each calendar year during the term hereof and once within six months
after termination of this Agreement. The designated accountant shall retain in
confidence the information in the books of account and shall report to IG only
the accuracy or inaccuracy of the reports rendered pursuant to paragraph 4.6
hereof. Such inspections will be at IG's expense unless the accountant's report
shows an underpayment of 5% or more, in which event ABG will reimburse IG for
the cost of the inspection.
Article V - Confidentiality
5.1 IG has and will continue to provide Licensed Information to ABG.
Within sixty (60) days after the effective date of this Agreement, IG shall
deliver to ABG such Licensed Information not previously provided to ABG. Such
Licensed Information shall be in writing to the extent possible, or, where not
susceptible to written transfer, shall be disclosed orally or by demonstration.
Licensed Information disclosed orally or by demonstration and considered
confidential by IG shall be summarized in a written document supplied to ABG
within twenty (20) days of such disclosure.
5.2 ABG agrees that all Licensed Information shall remain the property of
IG and shall not be copied or distributed to anyone outside the employ of ABG or
Related Companies of ABG without the prior written consent of IG. Upon
termination or expiration of this Agreement, and upon written request from IG,
ABG agrees to return to IG all documents, prototypes, computer-based data and
other tangible material which constitutes or incorporates Licensed Information.
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5.3 For five years from termination, ABG agrees to keep all Licensed
Information confidential and to treat all Licensed Information with the same
degree of care accorded its own proprietary or confidential information. ABG
shall not disclose any Licensed Information to anyone other than employees of
ABG who have a reasonable need for access thereto, and ABG will advise each such
employee of the confidential nature of the Licensed Information and of the
procedures required to protect it.
5.4 The obligations of paragraph 5.3 hereof shall not apply to Licensed
Information, which ABG can establish:
a) was publicly known at the time of disclosure to ABG or thereafter
becomes publicly known through no fault of ABG or a Related Company; or
b) was independently developed by ABG by persons having no access to
the Licensed Information or already in the possession of ABG at the time of
disclosure to ABG by IG; or becomes available to ABG from a source other than IG
without breach of a confidentiality obligation; or
c) is required to be disclosed by law or court order.
Specific aspects or details of Licensed Information shall not be
deemed to be within the public domain merely because the Licensed Information is
embraced by general disclosures in the public domain. In addition, any
combination of Licensed Information shall not be considered in the public domain
merely because individual elements thereof are in the public domain unless the
combination and its principles are in the public domain.
5.5 Throughout the term of this Agreement, ABG may disclose to IG ABG
Information. "ABG Information" will mean ABG business or other proprietary
information identified as confidential at the time of disclosure. ABG
Information disclosed orally or by demonstration and considered confidential by
ABG shall be summarized in a written document supplied to IG within twenty (20)
days of such disclosure.
5.6 IG agrees that all ABG Information shall remain the property of ABG
and shall not be copied or distributed to anyone without the prior written
consent of ABG. Upon written request from ABG, IG agrees to return to ABG all
documents, prototypes, computer-based data and other tangible material, which
constitutes or incorporates ABG Information.
5.7 IG agrees to keep all ABG Information confidential and to treat all
ABG Information with the same degree of care accorded its own proprietary or
confidential information. IG shall not disclose any ABG Information to anyone
other than employees of IG who have a reasonable need for access thereto, and IG
will advise each such employee of the confidential nature of the ABG Information
and of the procedures required to protect it.
5.8 Neither Party may publicly disclose the terms of this Agreement or the
status or content of the Research Program without the prior written consent of
the other Party; provided, however, that either Party may make such a disclosure
(a) to the extent required by law or by the
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requirements of any nationally recognized securities exchange, quotation system
or over-the-counter market on which such Party has its securities listed or
traded or (b) to any actual or prospective acquirors, real estate or equipment
lessors, investors, lenders and other potential financing sources who are
obligated to keep such information confidential. In the event that such
disclosure is required by the foregoing clause (a), the disclosing Party shall
make reasonable efforts to provide the other Party with notice beforehand and to
coordinate with the other Party to the maximum extent possible with respect to
the wording and timing of any such disclosure. The Parties shall mutually agree
on a press release announcing the execution of this Agreement to be issued
immediately following the execution hereof. If either Party wishes to issue any
further press release regarding the Research Program, it shall furnish a copy to
the other Party, which shall review such press release and provide any comments
within two (2) business days. Once any written statement is approved for public
disclosure by both Parties, either Party may make subsequent public disclosure
of the contents of such statement without the further approval of the other
Party.
Article VI - Term and Termination
6.1 This Agreement shall be effective on the Effective Date and shall
expire on the expiration of the last to expire of the IG Patent Rights or the
Program Patent Rights relating to [ * ] Tests, Nutrigenomics Tests or
Dermagenomics Tests unless extended or earlier terminated pursuant to the terms
hereof.
6.2 This Agreement may be terminated by either party for a material breach
by the other party of the provisions hereof. Such termination shall be effective
sixty (60) days after written notice to the other party of the breach if the
breach has not been remedied.
6.3 In the event of termination of this Agreement, ABG shall have the
right to complete all contracts for the sale of Licensed Products under which
ABG is obligated on the date of termination provided ABG pays royalties on such
sales as required in Article IV hereof and provided all such sales are completed
within six (6) months after the date of termination.
6.4 The obligations of paragraphs 4.5, 4.6, 5.2, 5.3, 5.6, 5.7 and 5.8
shall survive termination of this Agreement to the extent necessary to effect
the purposes thereof. In addition, ABG's obligation to pay royalties under
Section 4.1 and 4.4 shall continue until the expiration of the last to expire of
the IG Patent Rights or the Program Patent Rights relating to [ * ] Tests,
Nutrigenomics Tests or Dermagenomics Tests. ABG agrees that in the event the
termination of this Agreement is before the fifth anniversary of the Effective
Date it will discontinue use of the Licensed Information and, within thirty (30)
days after such termination, and upon written request from IG, to return to IG
all documents, prototypes, computer-based data and other tangible material
containing or constituting Licensed Information.
6.5 ABG shall have the right to terminate this Agreement, without cause,
on one hundred eighty (180) days advance written notice to IG.
6.6 The right of either party to terminate under the provisions of this
Article shall not be an exclusive remedy, and either party shall be entitled, if
the circumstances warrant, alternatively or cumulatively, to damages for breach
of this Agreement, to an order requiring performance of the obligations of this
Agreement, or to any other legally available remedy.
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6.7 Either party shall have the right by written notice to the other, to
terminate this Agreement at any time upon or after;
(a) An adjudication that IG or ABG is bankrupt or insolvent;
(b) The filing by IG or ABG of a Petition of Bankruptcy, or a
Petition or Answer seeking reorganization, readjustment or rearrangement of its
business or affairs under any law or governmental regulation relating to
bankruptcy or insolvency;
(c) The appointment of a receiver of the business or for all or
substantially all of the property of IG or ABG;
(d) The making by IG or ABG of an assignment or an attempted
assignment for the benefit of its creditors; or
(e) The institution by IG or ABG of any proceedings for the
liquidation or winding up of its business or affairs.
Article VII - Intellectual Property and Improvements
7.1 Each party shall retain ownership of all Patent Rights and Technology
owned by it on the Effective Date of this Agreement.
7.2 IG agrees to disclose to ABG all Improvements, which it solely or
jointly develops and/or owns within the Licensed Field and with respect to
Dermagenomics Tests and Nutrigenomics Tests during the term of this Agreement.
Such disclosures shall be subject to the obligations of confidentiality of
Article V. ABG shall have the right of first refusal by providing IG, within
sixty (60) days after such disclosure, its written notice to add such
Improvements to the licensed IG Patent Rights or Licensed Information.
Improvements not so elected shall not be disclosed or used by ABG.
7.3 IG will bear the cost associated with the filing, prosecution,
issuance and maintenance of all IG Patent Rights provided that:
(a) IG will have the right to choose the patent attorney(s) or
agent(s) who will prosecute the applications;
(b) ABG and IG will jointly agree on all decisions that affect the
scope of the claims in the Licensed Field, Dermagenomics Tests, and
Nutrigenomics Tests or relate to the continued prosecution of claims in the
application in the Licensed Field, including but not limited to decisions to
file continuation applications, file appeals, file oppositions, or abandon the
applications; and
(c) ABG will have the right to review and provide substantive
changes to claims in patent applications relating to the Licensed Field prior to
the filing of the application,
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including the right to select countries in which or treaties under which the
patent applications will be filed.
(d) IG will inform ABG of any matter requiring action under
paragraph (b) or (c), and ABG will respond within four (4) weeks. If ABG does
not respond, IG shall be free to take action on its own.
7.4 Subject to Section 5.8, ABG will retain the right to control all
publicity with regard to the Program Patent Rights and Licensed Information and
its application in the Licensed Field, Dermagenomics Tests, and Nutrigenomics
Tests.
7.5 ABG agrees to mark or have marked all Licensed Products made, sold,
used or leased by it or its sublicensees under the IG Patent Rights, if and to
the extent such markings shall be practical, with such patent markings as shall
be desirable or required by applicable patent laws.
Article VIII - Right of First Negotiation
8.1 Except for products for which IG has commenced discussions with third
parties prior to the Effective Date, as disclosed to ABG in writing, in the
event that IG at any time during the Term of this Agreement wishes to enter into
a business arrangement for a product (a "Future Product") (i) for use outside of
the Licensed Field, or (ii) that IG plans to market as its own product but is
seeking a Third Party to assist with marketing or commercialization, then IG
shall give written notice to ABG specifying in reasonable detail the proposed or
existing Future Product (the "IG Notice"). ABG shall have thirty (30) days after
the date of the IG Notice to provide a written response to IG (the "ABG
Response") as to whether or not it wishes to enter into negotiations with IG
with respect to such rights. If the ABG Response is not received within the
thirty (30) day response period or if ABG declines to enter into negotiations,
IG shall thereafter have the right, alone or in collaboration with a third
party, to pursue the development, commercialization or licensing of the Future
Product. If the ABG Response states that ABG wishes to enter into negotiations
with IG, the Parties shall negotiate exclusively and in good faith the terms of
a business arrangement for such Future Product for a period of sixty (60) days
from the date of the ABG Response. If the Parties do not agree upon and execute
a written agreement within the sixty (60) day negotiation period, as such period
may be extended by written agreement of both Parties, then ABG shall, within ten
business days following the expiration of such period, deliver to IG a proposal
(the "ABG Proposal") containing the material terms on which ABG proposes to
enter into a business arrangement for the Future Product. If IG accepts such ABG
Proposal, then it shall so notify ABG and the parties shall promptly enter into
a binding written agreement containing the terms of the ABG Proposal. If IG does
not accept the ABG Proposal, then it shall so notify ABG, whereupon IG shall
have the right to negotiate with (but not disclose the terms of the ABG Proposal
to) any third party, and consider such proposal from a third party (the "Third
Party Proposal") containing the material terms on which the third party proposes
to enter into a business arrangement with respect to such Future Product;
provided that IG shall not accept the Third Party Proposal or any agreement
related thereto, unless and until IG determines in good faith that the terms of
the Third Party Proposal, taken as a whole, are more favorable to IG than the
terms of the ABG Proposal, taken as a whole, recognizing the principle that ABG
is the preferred partner in all circumstances in which the proposals are roughly
comparable.
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Article IX - Warranty and Indemnity
9.1 IG represents and warrants that it owns the IG Patent Rights, IG
Technology and Licensed Information, that it has the right to enter into this
Agreement, that it is not a party to any existing assignments, grants, licenses,
encumbrances, obligations or agreements, written or oral, inconsistent with this
Agreement, that is has not granted any rights in the Licensed Field in the IG
Patent Rights or Licensed Information to a third party, that it will not take
action inconsistent with the rights granted herein, that it has no actual
knowledge of any basis for invalidity or unenforceability of such IG Patent
Rights.
9.2 IG represents and warrants that it will maintain the IG Patent Rights
in force during the term of this Agreement.
9.3 ABG HEREBY WAIVES, RELEASES AND RENOUNCES ANY AND ALL WARRANTIES,
GUARANTEES, OBLIGATIONS, LIABILITIES, RIGHTS AND REMEDIES, EXPRESS OR IMPLIED,
ARISING BY LAW OR OTHERWISE, WITH RESPECT TO THE USEFULNESS OR FREEDOM FROM
DEFECTS OF THE LICENSED PRODUCTS, INCLUDING, BUT NOT LIMITED TO, (a) ANY IMPLIED
WARRANTY OF MERCHANTABILITY OR FITNESS, (b) ANY IMPLIED WARRANTY ARISING FROM
COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE IN THE TRADE, and (c) ANY
OBLIGATION, RIGHT, LIABILITY, CLAIM OR REMEDY FOR (1) LOSS OF USE, REVENUE OR
PROFIT, OR ANY OTHER DAMAGES, (2) INFRINGEMENT OF THIRD PARTY INTANGIBLE
PROPERTY RIGHTS, and (3) INCIDENTAL OR CONSEQUENTIAL DAMAGES.
9.4 Except as otherwise provided in this Article VIII, ABG will defend and
hold IG harmless against all claims, liabilities, damages, expenses, or losses
arising out of any manufacture, use, sale or other disposition by ABG of
Dermagenomics and Nutrigenomics Consumables under this Agreement.
9.5 In the event that either party becomes aware of a third party
infringing an IG Patent Right by manufacture, use or sale of a Licensed Product
in the Licensed Field and Licensed Territory, ABG shall have the right, but not
the obligation, to bring an action against such third party for infringement of
an IG Patent Right in ABG's name, and in the name of IG. IG agrees to cooperate
with ABG in any such action at ABG's expense. Any funds recovered from such
enforcement of an IG Patent Right shall be shared proportionately between the
parties in the same proportion that the parties shared the costs and expenses of
enforcement hereunder.
Article X - Best Efforts
10.1 ABG specifically disclaims any obligation to exercise best efforts in
exploiting the IG Patent Rights or Licensed Information, in developing or
improving Licensed Products or in creating or satisfying demand for Licensed
Products. ABG will exercise a good faith reasonable business judgment in its
performance under this Agreement. IG specifically acknowledges and agrees to
this disclaimer.
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Article XI - Assignment
11.1 This Agreement has been entered into by IG in reliance upon the
particular qualifications of ABG and is personal to ABG. Neither this Agreement,
nor any rights or obligations hereunder, may be assigned, pledged or encumbered
by ABG without the express prior written approval of IG, provided, however, that
ABG may assign this Agreement without such approval in conjunction with its sale
of substantially all of the assets of the business associated with performance
hereunder, or to any affiliate or subsidiary of ABG.
11.2 IG may assign, pledge or encumber only its monetary rights under this
Agreement provided, however, that IG may assign this Agreement to any successor
corporation resulting from any merger or consolidation of IG with or into such
corporation or in conjunction with its sale of substantially all of the assets
of the business associated with performance hereunder, or to any affiliate or
subsidiary of IG.
Article XII - Miscellaneous
12.1 A waiver of any breach of any provision of this Agreement shall not
be construed as a continuing waiver of other breaches of the same or other
provisions of this Agreement.
12.2 Nothing herein shall be deemed to create an agency, joint venture or
partnership relation between the parties hereto.
12.3 This Agreement, together with the Research Agreement, constitutes the
entire agreement and understanding of the parties with regard to the subject
matter hereof and merges and supersedes all prior discussions, negotiations,
understandings and agreements between the parties concerning the subject matter
hereof. Neither party shall be bound by any definition, condition, warranty,
right, duty or covenant other than as expressly stated in this Agreement or the
Research Agreement or as subsequently set forth in a written document signed by
both parties. Each party expressly waives any implied right or obligation
regarding the subject matter hereof.
12.4 This Agreement shall be interpreted and construed, and the legal
relations created herein shall be determined, in accordance with the laws of the
State of Michigan and the United States of America, without regard to the
applications of principles of conflicts of law.
12.5 This Agreement may be amended only by a written document signed by
authorized representatives of both parties.
12.6 Each party hereto agrees to execute, acknowledge and deliver all such
further instruments, and to do all such further acts, as may be necessary or
appropriate to carry out the intent and purposes of this Agreement.
12.7 The headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Agreement.
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12.8 Should any part or provision of this Agreement be held unenforceable
or in conflict with the law of any jurisdiction, the validity of the remaining
parts or provisions shall not be affected by such holding. In the event a part
or provision of this Agreement held unenforceable or in conflict with law
affects consideration to either party, the parties agree to negotiate in good
faith amendment of such part or provision in a manner consistent with the
intention of the parties as expressed in this Agreement.
12.9 Neither party shall be responsible or liable to the other party for
nonperformance or delay in performance of any terms or conditions of this
Agreement due to acts or occurrences beyond the control of the non-performing or
delayed party, including but not limited to, acts of God, acts of government,
wars, riots, strikes or other labor disputes, shortages of labor or materials,
fires and floods, provided the non-performing or delayed party provides to the
other party written notice of the existence and the reason for such
nonperformance or delay. The nonperformance or delay of a party as a result of
such acts and in excess of one hundred eighty (180) days shall constitute cause
for termination of this Agreement by written notice to the non-performing or
delayed party.
12.10 (a) Any and all notices or other communications required or
permitted by this Agreement or by law to be served on or given to either party
hereto by the other party shall be in writing and delivered or sent to:
To ABG: To IG:
Access Business Group International LLC Inc. Interleukin Genetics, Inc.
7575 Fulton Street, East 135 Beaver Street, 3rd Floor
Ada, Michigan 49335-0001 Waltham, Massachusetts 02452
Attn: Chief Legal Officer Attn: Phillip Reilly
Chairman
Each party may change its address for purposes of this Agreement by written
notice to the other party.
(b) All notices or other communications shall be deemed duly served
and given on the date when personally delivered to the party to whom it is
directed, when transmitted electronically by telex or facsimile, or when
deposited in the United States mail, first class, postage prepaid, and addressed
to the party at the address in Paragraph 12.10 (a).
12.11 This Agreement shall be executed by each party in duplicate
originals, each of which shall be deemed an original, but both originals
together shall constitute only one and the same instrument.
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12
CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
IN WITNESS WHEREOF, the parties have executed this Agreement in duplicate
on the signature page hereof.
INTERLEUKIN GENETICS, INC.
By: /s/ Philip R. Reilly
----------------------------
Philip R. Reilly
Title: Chief Executive Officer
Date: March 5, 2003
ACCESS BUSINESS GROUP
INTERNATIONAL LLC
By: /s/ Beto Guajardo
----------------------------
Beto Guajardo
Title: Vice President
Date: March 5, 2003
13
CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
EXHIBIT A
The "IG Patent Rights" shall include, but not be limited to, the following
patents:
See Attached
CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
EXHIBIT A
- --------------------------------------------------------------------------------
LIST OF PATENTS ISSUED
================================================================================
PATENT NUMBER APPLICATION DATE ISSUED DATE TITLE INVENTORS (ASSIGNED TO INTERLEUKIN GENETICS, INC.)
[*****]
- --------------------------------------------------------------------------------
LIST OF PATENTS PENDING
================================================================================
REF. NUMBER APPLICATION NUMBER FILING DATE TITLE INVENTORS
[*****]