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EXHIBIT 10.6
EXECUTION
RESEARCH AGREEMENT
This RESEARCH AGREEMENT (this "Agreement") is entered into as of March 5,
2003 (the "Effective Date") by and between Interleukin Genetics, Inc., a
Delaware corporation having its principal office at 135 Beaver Street, Waltham,
MA 02452 ("IG") and Access Business Group LLC, having its principal office at
7575 Fulton Street, East, Ada, Michigan 49355-0001 ("Access"). Each of IG and
Access is sometimes referred to individually herein as a "Party" and
collectively as the "Parties."
WHEREAS, Access, together with its Affiliates, has expertise and
experience in the development, commercialization and marketing of nutritional
supplements and skin care products and IG has expertise and experience in
analyzing the effect of variations in genes related to inflammation, including
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;
WHEREAS, Access desires that IG perform the Research Program on the terms
and subject to the conditions set forth in this Agreement and in accordance with
the Protocol and the Parties desire to obtain certain rights to inventions
arising out of the Research Program; and
WHEREAS, IG is willing to perform the Research Program and the Parties are
willing to grant each other such rights as described herein.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
and for other good and valuable consideration, the Parties hereby agree as
follows:
1. DEFINITIONS
Whenever used in this Agreement with an initial capital letter, the terms
defined in this Section 1 shall have the meanings specified.
1.1 "AFFILIATE" means any corporation, firm, partnership or other entity
that directly or indirectly controls or is controlled by or is under common
control with a Party to this Agreement. For purposes of this definition,
"control" means ownership, directly or through one or more Affiliates, of fifty
percent (50%) or more of the shares of stock entitled to vote for the election
of directors, in the case of a corporation, fifty percent (50%) or more of the
equity interests in the case of any other type of legal entity, status as a
general partner in any partnership, or any other arrangement whereby a Party
controls or has the right to control the Board of Directors or equivalent
governing body of a corporation or other entity. For purposes of this Agreement,
Access, Alticor, Inc and subsidiaries of Alticor, Inc, on the one hand, and IG,
on the other hand, will not be deemed to be Affiliates of each other.
1.2 "ACCESS PATENT RIGHTS" means any Patent Rights with respect to Access
Technology.
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1.3 "ACCESS PROPRIETARY MATERIALS" means any Proprietary Materials of
Access that are used by Access, or provided by Access for use, in the Research
Program.
1.4 "ACCESS TECHNOLOGY" means any Technology Controlled by Access as of
the Effective Date and during the Term that is used by Access, or provided by
Access for use, in the Research Program.
1.5 "[ * ] TEST" means an analytic test performed on a [ * * ] or [ * ] to
[ * * * * ] to the use of a Dermagenomics Consumable or a Nutrigenomics
Consumable.
1.6 "CONFIDENTIAL INFORMATION" means, as regards a Party (the "Receiving
Party"), (i) all information produced or discovered by either Party under the
Research Program (including without limitation, compilations, data, formulae,
models, patent disclosures, procedures, processes, projections, protocols,
results of experimentation and testing, specifications, strategies and
techniques), and all tangible and intangible embodiments thereof of any kind
whatsoever (including, without limitation, apparatus, biological or chemical
materials, animals, cells, compositions, documents, drawings, machinery, patent
applications, records and reports) and (ii) all other information (including but
not limited to information about any element of Technology or a Party's
business) which is disclosed, whether in writing and marked as confidential at
the time of disclosure to the Receiving Party or customarily considered to be
confidential information or by oral disclosure reduced to a writing, by the
other Party (the "Disclosing Party") to the Receiving Party or to any of its
employees, consultants, Affiliates, licensees and sublicensees hereunder except
to the extent that the information described in this subsection (ii) (a) as of
the date of disclosure is demonstrably known to, or in the possession of, the
Receiving Party or its Affiliates, as shown by written documentation, other than
by virtue of a prior confidential disclosure by the Disclosing Party or its
Affiliates; (b) as of the date of disclosure is in, or subsequently enters, the
public domain, through no fault or omission of the Receiving Party or its
Affiliates; (c) as of the date of disclosure or thereafter is obtained by the
Receiving Party or its Affiliates from a Third Party free from any obligation of
confidentiality to the Disclosing Party and rightfully in possession of such
information or (d) is independently developed by or for the Receiving Party or
its Affiliates without reference to or in reliance upon any of the foregoing
information as demonstrated by competent written records.
1.7 "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.
1.8 "DERMAGENOMICS CONSUMABLE" means any nutritional supplement or skin
care product or topical delivery system [ * * * * * * * ] designed to produce a
positive health benefit and/or a positive appearance of skin (i) the
manufacture, use or sale of which would, absent the license or ownership rights
granted to ABG hereunder and under the License Agreement, infringe any claim
included in the Program Patent
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Rights or the IG Patent Rights, or (ii) which makes a claim or claims of
efficacy or utility based upon the research conducted hereunder or upon the use
or results of a Dermagenomics Test.
1.9 "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 License Agreement, infringe any claim included in the
Program Patent Rights or the IG Patent Rights, or (ii) which was developed,
modified or improved hereunder.
1.10 "DERMAGENOMICS PRODUCT" means a Dermagenomics Consumable or a
Dermagenomics Test.
1.11 "IG PATENT RIGHTS" means any Patent Rights with respect to IG
Technology.
1.12 "IG TECHNOLOGY" means any Technology Controlled by IG as of the
Effective Date and during the Term that is used by IG, or provided by IG, or
provided by IG for use, in the Research Program.
1.13 "JOINT SCIENCE COMMITTEE" or "JSC" shall have the meaning set forth
in Section 5.1 hereof.
1.14 "LICENSE AGREEMENT" means the License Agreement of even date herewith
between the Parties.
1.15 "LICENSED PRODUCT" means any Dermagenomics Product or Nutrigenomics
Product.
1.16 "NUTRIGENOMICS CONSUMABLE" means any nutritional supplement,
nutraceutical compound or delivery system for a nutritional supplement or
nutraceutical compound [ * * * * * * * * ] 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 License 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 hereunder or upon the use or results of a Nutrigenomics
Test.
1.17 "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 License Agreement, infringe any claim included in the
Program Patent Rights or the IG Patent Rights, or (ii) which was developed,
modified or improved hereunder.
1.18 "NUTRIGENOMICS PRODUCT" means a Nutrigenomics Consumable or a
Nutrigenomics Test.
1.19 "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
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patent granted thereon, and all reissues, reexaminations, extensions,
confirmations, revalidations, registrations and patents of addition thereof.
1.20 "PARTY" or "PARTIES" has the meaning set forth in the first paragraph
of this Agreement.
1.21 "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.
1.22 "PROGRAM PATENT RIGHTS" means all Patent Rights claiming any Program
Invention.
1.23 "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 License Agreement,
regardless of whether such materials are specifically designated as proprietary
by the transferring Party.
1.24 "PROTOCOL" means the written protocol describing the activities to be
carried out under the Research Program pursuant to this Agreement to be agreed
upon by the JSC based on the outline attached hereto as Appendix A.
1.25 "RESEARCH PROGRAM" means the program to be conducted by the Parties
as described in this Agreement and in the Protocol to develop [ * * * * ] which
will be Nutrigenomics Products and Dermagenomics Products.
1.26 "TECHNOLOGY" means and includes all inventions, discoveries,
know-how, trade-secrets, improvements and Proprietary Materials, whether or not
patentable, including but not limited to, structural and functional information
and other data, formulations and techniques.
1.27 "TERM" has the meaning set forth in Section 7.1.
1.28 "TERRITORY" means worldwide.
1.29 "THIRD PARTY" means any entity other than IG, Access or their
respective Affiliates.
2. RESEARCH PROGRAM
2.1 IMPLEMENTATION OF RESEARCH PROGRAM. The Research Program shall be
conducted by the Parties in accordance with the Protocol and in compliance with
all applicable laws and regulations. IG shall use commercially reasonable
efforts to perform the activities to be performed by it under the Research
Program, as described more fully in the Protocol and in the proposed timeline
(the "Timeline") which the JSC shall agree upon in writing, based upon the
outline attached hereto as Appendix A, as promptly as practicable following the
execution hereof. The Protocol and/or the Timeline may be modified from time to
time after the Effective Date by the JSC pursuant to Section 5.2 hereof.
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2.2 SUPPLY OF PROPRIETARY MATERIALS. From time to time during the Term of
this Agreement, one Party may supply the other Party with its Proprietary
Materials for use in the Research Program. In connection therewith, the
recipient Party hereby agrees that (a) it shall not use Proprietary Materials
for any purpose other than exercising any rights granted to it or reserved by it
hereunder; (b) it shall use the Proprietary Materials only in compliance with
all applicable federal, state, and local laws and regulations; (c) it shall not
transfer any Proprietary Materials to any Third Party without the prior written
consent of the transferor, except as expressly permitted hereby; (d) the
transferring Party shall retain full ownership of all such Proprietary
Materials; and (e) upon the expiration or termination of this Agreement, the
recipient Party shall at the instruction of the transferring Party either
destroy or return any unused Proprietary Materials which are not the subject of
the grant of a continuing license hereunder.
2.3 CONSIDERATION. In consideration of IG conducting the Research Program
described herein, Access shall pay to IG an aggregate sum of five million
($5,000,000) dollars in eight equal installments of six hundred and twenty-five
thousand ($625,000) dollars each. The first such installment shall be due and
payable on April 1, 2003 and each of the remaining seven installments shall be
due and payable on the first day of each calendar quarter thereafter.
3. RESEARCH LICENSES
3.1 LICENSE TO IG. Subject to the terms and conditions of this Agreement,
Access hereby grants to IG a non-exclusive, worldwide, royalty-free license,
under the Access Technology, Access Patent Rights, Program Inventions and
Program Patent Rights for the sole purpose of performing its obligations under
the Research Program.
3.2 LICENSE TO ACCESS. Subject to the terms and conditions of this
Agreement and the License Agreement, IG hereby grants to Access a non-exclusive,
worldwide, royalty-free license, under the IG Technology, IG Patent Rights,
Program Inventions and Program Patent Rights for the sole purpose of performing
its obligations under the Research Program.
4. TREATMENT OF CONFIDENTIAL INFORMATION; PUBLICITY
4.1 CONFIDENTIALITY.
4.1.1. Confidentiality Obligations. Access and IG each recognize
that the Confidential Information of the other Party constitutes highly valuable
and proprietary confidential information. Access and IG each agrees that during
the Term and for five (5) years thereafter, it will keep confidential, and will
cause its employees, consultants, Affiliates and sublicensees to keep
confidential, all of the Confidential Information of the other Party. Neither
Access nor IG nor any of their respective employees, consultants, Affiliates and
sublicensees shall use the Confidential Information of the other Party for any
purpose except as expressly permitted in this Agreement.
4.1.2. Limited Disclosure of Confidential Information. Access and IG
each agree that any disclosure of the Confidential Information to any of its
employees, consultants, Affiliates or sublicensees shall be made only if and to
the extent necessary to carry out its rights and responsibilities under this
Agreement, shall be limited to the maximum extent possible consistent with such
rights and responsibilities and shall only be made to persons who are bound
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by written confidentiality obligations to maintain the confidentiality thereof
and not to use such Confidential Information except as expressly permitted by
this Agreement. Access and IG each agree not to disclose the Confidential
Information to any Third Party under any circumstance without prior written
approval from the other Party, except as otherwise required by law, and except
as otherwise expressly permitted by this Agreement. Each Party shall take such
action, and shall cause its Affiliates and sublicensees to take such action, to
preserve the confidentiality of the Confidential Information as it would
customarily take to preserve the confidentiality of its own confidential
materials, which shall not, in any event, be less than reasonable care. Each
Party, upon the other's request, will return all the Confidential Information
disclosed to it by the other Party pursuant to this Agreement, including all
copies and extracts of documents, within sixty (60) days of the request
following the termination of this Agreement; provided, that, a Party may retain
Confidential Information of the other Party relating to any license or right to
use Technology which survives such termination and one copy of all other
Confidential Information may be retained in inactive archives solely for the
purpose of establishing the contents thereof.
4.2 PUBLICITY. 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 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.
5. JOINT SCIENCE COMMITTEE
5.1 FORMATION. Within thirty (30) days after the Effective Date, the
Parties will establish a Joint Science Committee (the "JSC") to oversee and
coordinate the Parties' conduct of the Research Program and to consider mutually
beneficial business opportunities pursuant to the subject matter hereof. The JSC
shall be composed of two (2) representatives of IG and two (2) representatives
of Access and shall have the powers enumerated below in this Section 5. Either
Party shall have the right to replace any of its JSC representatives at any time
in its sole discretion.
5.2 FUNCTIONS AND POWERS OF THE JSC. During the Term, the JSC will
coordinate and oversee the activities of the Parties in the conduct of the
Research Program and will exchange information in anticipation of developing
mutually beneficial business opportunities pursuant to the subject matter
hereof. The JSC shall keep written minutes of its meetings and all actions
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taken or approved by the JSC. The members of the JSC designated by each Party
shall be responsible for keeping that Party informed as to the progress of the
Research Program. The JSC shall recommend to the Parties amendments and/or
modifications to the Protocol and Timeline and the scope of the Research Program
and make recommendations to the Parties as to the mutually beneficial
prosecution of IG Patent Rights and Program Patent Rights. The JSC shall have no
power to amend, modify or waive compliance with this Agreement and shall have
only such powers as are specifically delegated to it hereunder.
5.3 JSC GOVERNANCE.
5.3.1. Membership. The JSC representatives have initially been
designated by the Parties as follows:
IG Representatives:
Kenneth Kornman, DDS, Ph.D.
Paul Martha, M.D.
Access Representatives:
Robin Dykhouse
Daniel Beio
Either Party may designate substitutes for its JSC representatives to
participate if one or more of such Party's designated representatives is unable
to be present at a meeting. A Party may replace its representatives serving on
the JSC from time to time by written notice to the other Party specifying the
prior representative(s) to be replaced and the replacement(s) therefor.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 OWNERSHIP.
6.1.1. Access Intellectual Property Rights. Subject to IG's rights
as described in Section 3 of this Agreement, Access shall have sole and
exclusive ownership of all right, title and interest [ * * * * ] in and to all
Access Technology and Access Patent Rights, and all Program Inventions and
Program Patent Rights relating to Nutrigenomics Consumables and Dermagenomics
Consumables, with full rights to license or sublicense; provided, however, that
in consideration of the performance of the Research Program by IG, the
manufacture, use or sale of all Nutrigenomics Consumables and Dermagenomics
Consumables shall be subject to the payment of royalties by Access to IG in
accordance with the License Agreement.
6.1.2. IG Intellectual Property Rights. Subject to Access's rights
as described in Section 3 of this Agreement and subject to the terms of the
License Agreement, IG shall have
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sole and exclusive ownership of all right, title and interest [ * * * * ] in and
to all IG Technology, IG Patent Rights and all Program Inventions and Program
Patent Rights relating to Nutrigenomics Tests and Dermagenomics Tests, with full
rights to license or sublicense.
6.1.3. Intellectual Property Rights for [ * ] Tests. Subject to the
rights of the Parties described in Section 3 of this Agreement, Access and IG
shall have equal joint ownership of all right, title and interest [ * * * * ] in
and to all Program Inventions and Program Patent Rights relating to [ * ] Tests;
provided, however, that Access shall have the exclusive right to sell and grant
licenses for [ * ] Tests covered by such Program Inventions and Program Patent
Rights in the channels of distribution utilized by Access and its Related
Companies (the "Access Channels") and IG shall have the exclusive right to sell
and grant licenses for [ * ] Tests covered by such Program Inventions and
Program Patent Rights outside the Access Channels.
6.2 License of Access Technology/Access Patent Rights. Notwithstanding
anything contained herein to the contrary, no license is granted to IG by Access
with respect to Access Technology or Access Patent Rights.
6.3 Patent Filing, Prosecution and Maintenance. During the Term with
respect to any Patent Rights arising hereunder:
Access shall bear the cost associated with the filing, prosecution, issuance and
maintenance of all Program Patent Rights relating to Nutrigenomics Consumables
and Dermagenomics Consumables and shall control prosecution of all such Program
Patent Rights, including, but not limited to, having the right to choose the
patent attorney(s) or agent(s) who will prosecute the applications, having the
right to inspect, review and provide substantive comments to all correspondence
with any patent office or patent agent, and having the right to select the
countries in which or treaties under which the patent applications will be
filed.
IG shall bear the cost associated with the filing, prosecution, issuance and
maintenance of all Program Patent Rights relating to Nutrigenomics Tests and
Dermagenomics Tests and shall control prosecution of all such Program Patent
Rights, including, but not limited to, having the right to choose the patent
attorney(s) or agent(s) who will prosecute the applications, having the right to
inspect, review and provide substantive comments to all correspondence with any
patent office or patent agent, and having the right to select the countries in
which or treaties under which the patent applications will be filed.
The Parties shall jointly bear the cost associated with the filing, prosecution,
issuance and maintenance of all Program Patent Rights relating to [ * ] Tests
and shall jointly control prosecution of all such Program Patent Rights,
including, but not limited to, having the right to choose the patent attorney(s)
or agent(s) who will prosecute the applications, having the right to inspect,
review and provide substantive comments to all correspondence with any patent
office or patent agent, and having the right to select the countries in which or
treaties under which the patent applications will be filed. In the event that
the parties cannot agree on the filing and/or maintenance of Program Patent
Rights hereunder, then each party shall have the right to proceed at its own
costs with such filing and/or maintenance. If one party proceeds in filing
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and/or maintaining Program Patent Rights hereunder, then the other party agrees
to assign or otherwise take any action necessary to assist the cost-bearing
party in achieving the filing or maintenance of such Program Patent Rights.
7. TERM; TERMINATION
7.1 TERM. This Agreement shall commence on the Effective Date and continue
for a period of two (2) years, unless extended or sooner terminated as set forth
in this Section 7 (the "Term"). At least six(6) months prior to the end of the
initial Term and any extension thereof, the JSC shall advise the Parties as to
whether the JSC believes that the Research Program should be extended or
expanded, but any extension or expansion shall require the agreement of the
parties.
7.2 TERMINATION.
7.2.1. Termination for Breach. In the event that either Party
defaults or breaches any material term of this Agreement on its part to be
performed or observed, the other Party shall have the right to terminate this
Agreement (a) by giving thirty (30) days' written notice to the defaulting Party
in the case of a breach of any payment term of this Agreement and (b) by giving
sixty (60) days' written notice to the defaulting Party in the case of any other
breach; provided, however, that in the case of a default or breach capable of
being cured, if the said defaulting Party shall cure the said default or breach
within such notice period after the said notice shall have been given, then the
said notice shall not be effective.
7.2.2. Termination for Bankruptcy. In the event that either Party
files for protection under bankruptcy laws, makes an assignment for the benefit
of creditors, appoints or suffers appointment of a receiver or trustee over its
property, files a petition under any bankruptcy or insolvency act or has any
such petition filed against it which is not discharged within sixty (60) days of
the filing thereof, then the other Party may terminate this Agreement effective
immediately upon written notice to such Party.
7.3 SURVIVING PROVISIONS. Termination of this Agreement for any reason
shall be without prejudice to rights which expressly survive termination in
accordance with the terms of this Agreement, including without limitation, the
rights and obligations of the Parties provided in Sections 4, 7.3, 8 and 9, all
of which shall survive such termination.
8. REPRESENTATIONS AND WARRANTIES
8.1 MUTUAL REPRESENTATIONS. Access and IG each represents and warrants to
the other Party as follows:
8.1.1. Organization. It is a corporation duly organized, validly
existing and is in good standing under the laws of the jurisdiction of
organization, is qualified to do business and is in good standing as a foreign
corporation in each jurisdiction in which the performance of its obligations
hereunder requires such qualification.
8.1.2. Authorization. The execution, delivery and performance by it
of this Agreement have been duly authorized by all necessary corporate action
and do not and will not
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violate any provision of any law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award presently in effect having
applicability to it or any provision of its charter documents.
8.1.3. Binding Agreement. This Agreement is a legal, valid and
binding obligation of it enforceable against it in accordance with its terms and
conditions.
8.1.4. No Inconsistent Obligation. It is not under any obligation to
any person, or entity, contractual or otherwise, that is conflicting or
inconsistent in any respect with the terms of this Agreement or that would
impede the diligent and complete fulfillment of its obligations.
8.2 WARRANTY DISCLAIMER. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS
AGREEMENT, NEITHER PARTY MAKES ANY WARRANTY WITH RESPECT TO ANY TECHNOLOGY,
GOODS, SERVICES, RIGHTS OR OTHER SUBJECT MATTER OF THIS AGREEMENT AND HEREBY
DISCLAIMS WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
NONINFRINGEMENT WITH RESPECT TO ANY AND ALL OF THE FOREGOING.
8.3 LIMITED LIABILITY. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR
OTHERWISE, NEITHER ACCESS NOR IG WILL BE LIABLE WITH RESPECT TO ANY SUBJECT
MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR
OTHER LEGAL OR EQUITABLE THEORY FOR (I) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL
OR PUNITIVE DAMAGES OR LOST PROFITS OR (II) COST OF PROCUREMENT OF SUBSTITUTE
GOODS OR TECHNOLOGY.
9. MISCELLANEOUS
9.1 DISPUTE RESOLUTION. The Parties recognize that disputes may from time
to time arise between the Parties during the term of this Agreement. It is the
objective of the Parties to establish procedures to facilitate the resolution of
disputes arising under this Agreement, including, without limitation, disputes
concerning the definitions of terms used in this Agreement, in an expedient
manner by mutual cooperation and without resort to litigation. To accomplish
this objective, the Parties agree to follow the procedures set forth in this
Section 9.1 to resolve any dispute arising under this Agreement. In the event of
such a dispute between the Parties, either Party, by written notice to the other
Party, shall have such dispute referred to the Parties' respective executive
officers designated below or their successors, for attempted resolution by good
faith negotiations within thirty (30) days after such notice is received. Said
designated officers are as follows:
For IG: Chief Executive Officer
For Access: Vice President, Research & Development
In the event the designated executive officers are not able to resolve such
dispute after such thirty (30) day period, then the Parties shall resolve such
dispute by arbitration under the Commercial Rules of the American Arbitration
Association (the "AAA"). Three arbitrators shall be selected.
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IG and Access shall each select one arbitrator and the two chosen arbitrators
shall select the third arbitrator, or failing agreement on the selection of the
third arbitrator, the AAA shall select the third arbitrator. Unless otherwise
agreed by IG and Access, arbitration will take place in Boston, Massachusetts.
9.2 NOTICES. All notices shall be in writing mailed via certified mail,
return receipt requested or courier providing evidence of delivery, addressed as
follows, or to such other address as may be designated from time to time:
If to IG: If to Access:
135 Beaver Street 7575 Fulton St. East
Waltham, MA 02452 Ada, MI 49355-0001
Attention: Chief Executive Officer Attention: George Calvert
With a copy to:
Mintz, Levin, Cohn, Ferris, 7575 Fulton St. East.
Glovsky and Popeo, P.C. Ada, MI 49355-0001
One Financial Center Attention: Thomas R. Curran
Boston, MA 02111 Chief Legal Officer
Attention: Jeffrey M. Wiesen, Esquire
9.3 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Michigan, without regard to the
application of principles of conflicts of law.
9.4 BINDING EFFECT. This Agreement shall be binding upon and inure to the
benefit of the Parties and their respective legal representatives, successors
and permitted assigns.
9.5 HEADINGS. Section and subsection headings are inserted for convenience
of reference only and do not form a part of this Agreement.
9.6 COUNTERPARTS. This Agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed an original.
9.7 AMENDMENT; WAIVER. This Agreement may be amended, modified, superseded
or canceled, and any of the terms may be waived, only by a written instrument
executed by each Party or, in the case of waiver, by the Party or Parties
waiving compliance, provided, that in the case of IG, such amendment must be
approved by a majority of the members of IG's Board of Directors who are not
selected by or affiliated with Access. The delay or failure of any Party at any
time or times to require performance of any provisions shall in no manner affect
the rights at a later time to enforce the same. No waiver by any Party of any
condition or of the breach of any term contained in this Agreement, whether by
conduct, or otherwise, in any one or more instances, shall be deemed to be, or
considered as, a further or continuing waiver of any such condition or of the
breach of such term or any other term of this Agreement.
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9.8 NO AGENCY OR PARTNERSHIP. Nothing contained in this Agreement shall
give either Party the right to bind the other, or be deemed to constitute the
Parties as agents for the other or as partners with each other or any Third
Party.
9.9 ASSIGNMENT AND SUCCESSORS. This Agreement may not be assigned by
either Party without the written consent of the other which shall not be
unreasonably withheld, except that each Party may assign this Agreement and the
rights, obligations and interests of such Party to any purchaser of all or
substantially all of its assets or to any successor corporation resulting from
any merger or consolidation of such Party with or into such corporation.
9.10 FORCE MAJEURE. Neither IG nor Access shall be liable for failure of
or delay in performing obligations set forth in this Agreement, and neither
shall be deemed in breach of its obligations, if such failure or delay is due to
natural disasters or any causes beyond the reasonable control of IG or Access.
In event of such force majeure, the Party affected thereby shall use reasonable
efforts to cure or overcome the same and resume performance of its obligations
hereunder.
9.11 INTERPRETATION. The Parties hereto acknowledge and agree that: (i)
each Party and its counsel reviewed and negotiated the terms and provisions of
this Agreement and have contributed to its revision; (ii) the rule of
construction to the effect that any ambiguities are resolved against the
drafting Party shall not be employed in the interpretation of this Agreement;
and (iii) the terms and provisions of this Agreement shall be construed fairly
as to all Parties hereto and not in a favor of or against any Party, regardless
of which Party was generally responsible for the preparation of this Agreement.
9.12 INTEGRATION; SEVERABILITY. This Agreement, together with the License
Agreement, is the sole agreement with respect to the subject matter hereof and
supersedes all other agreements and understandings between the Parties with
respect to same. If any provision of this Agreement is or becomes invalid or is
ruled invalid by any court of competent jurisdiction or is deemed unenforceable,
it is the intention of the Parties that the remainder of the Agreement shall not
be affected.
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
by their duly authorized representatives.
INTERLEUKIN GENETICS, INC.
By: /s/ Philip R. Reilly
-----------------------
Philip R. Reilly
Title: Chief Executive Officer
Date: March 5, 2003
ACCESS BUSINESS GROUP LLC
By: /s/ Beto Guajardo
-----------------------
Beto Guajardo
Title: Vice President
Date: March 5, 2003
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APPENDIX A
[ * * * * * ]
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[ * * * * * ]
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EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
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