EXCLUSIVE LICENSE AGREEMENT
for Sanguine Corporation Technologies
PHER-02
Oxygen-Carrying Synthetic Substitute for Human Red Blood Cells
U.S. Patent Pending, Assigned Serial Number 08/230,672
All Derivatives of PHER-02
TABLE OF CONTENTS
RECITALS
ARTICLES:
I DEFINITIONS
II GRANT
III OBLIGATIONS OF LICENSEE
IV OBLIGATIONS OF LICESOR
V PAYMENTS
VI REPORTS AND RECORDS
VII MAINTENANCE OF PATENT
VIII INFRINGEMENT
IX LICENSOR REPRESENTATIONS AND WARRANTIES
X INDEMNIFICATION, PRODUCT LIABILITY
XI USE OF NAMES
XII ASSIGNMENT AND SUB-LICENSES
XIII TERMINATION
XIV PAYMENTS, NOTICES AND OTHER COMMUNICATIONS
XV MISCELLANEOUS PROVISIONS
This Agreement is effective as of February 15, 2002 (the "Effective
Date"), and is made by and between Sanguine Corporation (OTC:BB SGNC), a
Nevada corporation, with principal offices at 101 East Green Street, Suite 11,
Pasadena, California 91105, along with all affiliates and successors
(hereinafter referred to as "LICENSOR"), and Ascendiant-Asia, L.L.C., a Nevada
limited liability corporation, with principal offices at 18881 Von Karman,
Suite 1630, Irvine, California 92612, or Assignee (hereinafter referred to as
"LICENSEE"), collectively hereinafter referred to as the "PARTIES."
RECITALS
WHEREAS, LICENSOR has developed, acquired, possesses and owns all
proprietary, formula, technological and intellectual property rights to a
certain oxygen-carrying synthetic substitute for human red blood cells,
currently named and known as, PHER-02 (U.S. patent application assigned
serial number 08/230,672), along with all derivative formulas, products and
processes existing now or in the future (hereinafter referred to in its
entirety, inclusive of all future derivatives, as, "PHER-02"). LICENSOR
possesses all rights to license PHER-02 for any and all purposes LICENSOR
determines or deems desirable.
WHEREAS, LICENSEE believes it has the capability and means, either
directly or through joint business endeavors and/or sub-licenses, to test,
manufacture, market, distribute, and sell PHER-02, Licensed Products and
Licensed Processes in and to the geographical territory containing the
continents of Asia and Southeast Asia, and all countries, republics and
territories therein, inclusive without limitation the People's Republic of
China, (hereinafter referred to as "PRC," and defined herein to include any
and all parts of China inclusive of Taiwan, Hong Kong, Hainan and Macao),
North Korea, Vietnam, Cambodia, Laos, Thailand, Burma, Mongolia, Malaysia,
Singapore, and Indonesia (all such geographic territory described herein this
paragraph shall be hereinafter collectively referred to as "ASIA")
WHEREAS, LICENSOR desires to grant to LICENSEE an exclusive license for
all proprietary, formula, developmental, technological, intellectual property
and patent rights of PHER-02, Licensed Products and Licensed Processes for any
and all uses, inclusive without limitation all medical, commercial,
industrial, scientific, and/or agricultural uses and to use, test,
manufacture, make, have made, market, distribute, sell and obtain profit from,
for and/or within, ASIA. (hereinafter referred to as the "LICENSE," or
"LICENSE RIGHTS"). LICENSEE desires to take possession of such LICENSE RIGHTS
from LICENSOR pursuant to the terms and duration of this Agreement.
Accordingly, the PARTIES, each of them, desire to enter into this Agreement as
of the date first written herein for the duration herein provided, and to be
bound hereunder to the following terms.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and promises
hereinafter set forth and for other good and valuable consideration, the
receipt and sufficiency of which are hereby expressly acknowledged, the
Parties hereto agree as follows:
ARTICLE I - DEFINITIONS
For the purpose of this Agreement, the following words and phrases shall
have the following meanings:
1.1 "Affiliate" shall mean any person, firm, corporation or other
entity controlling, controlled by, or under common control with a PARTY
hereto. The term "control" wherever used throughout this Agreement shall mean
ownership, directly or indirectly, of more than 50% of the equity capital.
Other than LICENSEE, any corporation, company, partnership, joint venture,
firm, individual or other entity which does not come within this definition
shall be a "Non-Affiliate".
1.2 "Effective Date" is defined above.
1.3 "Grant" is defined in Section 2.1 below.
1.4 "LICENSEE" shall mean Ascendiant-Asia, L.L.C., or its Assignee.
1.5 "Licensed Process" shall mean any process which is covered in
whole or in part by this Agreement, Section 1.6 herein, or an issued,
unexpired claim or a pending claim contained in the Patent Rights in any
country in which such process is practiced.
1.6 "Licensed Product" shall mean PHER-02, as defined in the Recitals
Section above (and hereby incorporated into this definition) along with any
process or product, or part thereof, developed by or on behalf of LICENSOR,
which:
(a) is covered in whole or in part by this Agreement or an
issued, unexpired claim or a pending claim contained in the
Patent Rights in the country in which any product is made,
used or sold; or
(b) is manufactured by using a process which is covered in whole
or in part by this Agreement or an issued, unexpired claim
or a pending claim contained in the Patent Rights in the
country in which any such process is used or in which any
such product is used or sold.
(c) is developed at any time by, or through, the incremental or
accumulated expertise, knowledge, or efforts of LICENSOR,
its researchers, chemists, scientists, principals,
affiliates, or Thomas Drees, Ph.D.
1.7 "Unit Produced" shall mean any production process or manufacturing
method resulting in a complete or finished batch of the Licensed Product,
containing a unit portion of 200 milliliters, which is ready for commercial
use. "Commercial use" is hereby defined to include any usage of a Unit
Produced, which has been designed for, or intended to be used in, any purpose
that results in financial gain or economic commerce to any party or entity,
whether or not such party or entity is a party to this Agreement.
1.8 "Patent Rights" shall mean all of the following LICENSOR
intellectual property:
(a) the United States patent application entitled "PFC
Emulsions", filed in the United States Patent Office on
April 21, 1994, and assigned Serial Number 08/230,672, and
all foreign patent applications based on this U.S.
application;
(b) the European patent application entitled "____________",
filed in the on ________________, and assigned Serial Number
________________, and all foreign patent applications based
on this European application;
(c) United States and foreign patents issued from these
applications, and divisionals and continuations of these
applications;
(d) claims of U.S. and foreign continuation-in-part
applications, and of the resulting patents, which are
directed to subject matter specifically described in the
U.S. patent applications Serial Number ______________, and
_______________.
(e) any reissues or re-examinations of patents described in (a),
(b), (c), and (d) above.
1.9 "Sublicense" shall mean the right to make, use or sell Licensed
Products or Licensed Processes, or possess LICENSE RIGHTS pursuant to Article
XII below.
ARTICLE II - GRANT
2.1 LICENSOR hereby grants to LICENSEE an exclusive license for,
including the right to sub-license pursuant to Article XII below, PHER-02, the
Licensed Products, Licensed Processes and all proprietary, formula,
developmental, technological, intellectual property and patent rights, and all
other applications of PHER-02, Licensed Products, or Licensed Processes, for
any and all uses, inclusive without limitation all medical, commercial,
industrial, scientific, and/or agricultural uses, and to use, test,
manufacture, make, have made, market, distribute, sell and derive profit from,
for and/or within, ASIA. (hereinafter, the "Grant" of "LICENSE," or "LICENSE
RIGHTS"). Pursuant to such Grant of LICENSE, and upon the execution of this
Agreement, LICENSOR shall cause a complete transfer of the PHER-02
technologies, formulas, development techniques, processes, methods and
procedures of production, trade secrets, and all other information necessary
to develop, manufacture and produce PHER-02. Such Grant is in effect until the
end of the last to expire patent of the Patent Rights or until this Agreement
shall expire or be terminated, as hereinafter provided, whichever is first to
occur.
2.2 In order to maintain and preserve the LICENSE and LICENSE RIGHTS
granted hereunder, LICENSEE and all sub-licensees agree to certain minimum
levels of annual production of the Licensed Products (hereinafter, the
"Minimum Production") which, in the aggregate, results in Units Produced
equaling or exceeding the following amounts:
* 500,000 Units Produced by the end of the first twelve months after
commercial production of any Licensed Products begins. Commencement
of production shall occur after LICENSEE or sub-licensee shall have
completed, to their sole satisfaction, all clinical tests, studies
and trials as defined in Section 3.2 herein this Agreement.
* 1,000,000 Units Produced by the end of the second twelve months after
production of any Licensed Products begins.
* 1,000,000 Units Produced by the end of each year thereafter.
If LICENSEE fails to achieve the Minimum Production, then, in order to
avoid a default under this Agreement, LICENSEE shall consent to pay a royalty
to LICENSOR as if such Minimum Production levels were reached (hereinafter,
the "Make-up Royalties"). Such make-up Royalties are payable pursuant to the
payment terms of Article V herein this Agreement, and shall be due at the end
of each twelve month period as delineated above. Should such Minimum
Production not be reached and LICENSEE fails to pay Make-up Royalties to
LICENSOR when due as provided for herein this paragraph, then, LICENSOR shall
have to right to terminate this Agreement pursuant to Section 13.2 of this
Agreement.
2.3 This Agreement and the Grant of LICENSE and LICENSE RIGHTS granted
herein shall exist for a term of twenty-five (25) years commencing from the
date of this Agreement. This Agreement along with the Grant of LICENSE and
LICENSE RIGHTS granted shall automatically renew and extend for an additional
ten (10) years after the expiration of the original term, subject to, (i) all
terms of this Agreement as of the time of the original term's expiration date,
are then current and not in default, and, (ii) this Agreement has not been
earlier terminated. Except for any provision for a renewal or extension of
term, all other provisions of this Agreement shall survive and be in effect
for any renewed or extended term.
2.4 Notwithstanding any other provisions of this Agreement, it is
agreed that nothing in this Agreement is to be construed to be a granting of a
LICENSE or LICENSE RIGHTS outside of ASIA.
2.5 For the purpose of distribution outside of ASIA, should LICENSOR,
at any time within the duration of this Agreement, elect to manufacture PHER-
02, the Licensed Product, or Licensed Processes, in whole or in part, at
manufacturing facilities located within ASIA, or cause or contract such
manufacturing with or through the efforts or joint-efforts of any party or
entity, or subsidiary of same, that is domiciled or conducting business
directly or indirectly in ASIA, then LICENSEE shall have first rights, under
similar terms, to any business contracts, orders or agreements to manufacture
such products for hire, and on behalf of, LICENSOR. LICENSEE shall be granted
equal time for its due diligence and determination of interest to manufacture
products on behalf of LICENSOR for distribution outside of ASIA as that
granted to all other prospective parties or entities as described herein this
paragraph. LICENSEE's decision of whether or not to accept such manufacturing
contract or agreement shall be made in writing and delivered to LICENSOR
pursuant to Article XIV herein.
2.6 LICENSEE hereby agrees that every sublicensing agreement to which
it shall be a party, and which shall relate to the rights, privileges and
LICENSE granted hereunder, shall not be made for any duration beyond the date
of this Agreement's expiration, including all periods of extension.
2.7 The LICENSE granted hereunder shall not be construed to confer any
rights upon LICENSEE by implication, estoppel or otherwise as to any
technology not included in PHER-02, the Licensed Product, Licensed Process, or
this Agreement.
ARTICLE III - OBLIGATIONS OF LICENSEE
In addition to all other obligations of LICENSEE contained herein this
Agreement, LICENSOR pledges the following:
3.1 LICENSEE and its sub-licensees shall use their best efforts to
bring Licensed Products or Licensed Processes to market through a diligent
program for the exploitation of the LICENSE and LICENSE RIGHTS granted herein
the Agreement.
3.2 This Agreement expressly contemplates that any clinical studies,
tests or trials shall, with all reasonable efforts, be performed diligently
and within the standards, protocols, and facilities, acceptable under then
existing requirements established for such clinical studies, tests or trials
by the United States Food and Drug Administration. LICENSEE agrees that any
data derived from such clinical studies, tests or trials shall be delivered to
LICENSOR for their unrestricted use. At all times during the term of this
agreement, LICENSOR shall have the right to inspect all test, trial and
manufacturing facilities involving or attributable to PHER-02. Additionally
at all times during the term of this agreement and for up to five years
thereafter, LICENSOR shall possess the right to gather, review, and otherwise
be privy to, all information and data derived from or involving the clinical
studies, testing, trials and manufacturing of PHER-02.
ARTICLE IV - OBLIGATIONS OF LICENSOR
In addition to all other obligations of LICENSOR contained herein this
Agreement, LICENSOR pledges to endeavor to develop new and derivative
formulas, products and processes associated with, or derived from, PHER-02,
the Licensed Products, and Licensed Processes, and to continue all necessary
efforts of research and development for improvements, enhancements and
derivatives to PHER-02, the Licensed Products and Licensed Processes, each of
which upon its development, LICENSOR hereby agrees shall be added to the
LICENSE and LICENSE RIGHTS granted hereunder this Agreement and become subject
to all terms and provisions therein.
ARTICLE V - PAYMENTS
5.1 For the rights, privileges and licenses granted hereunder,
LICENSEE shall pay to the LICENSOR, in the manner hereinafter provided, until
the end of the last to expire patent of the Patent Rights or until this
Agreement shall expire, or otherwise be terminated, as hereinafter provided,
whichever occurs first:
a royalty in a minimum amount equal to FIVE U.S. Dollars ($5.00) for
each and every 200 milliliter commercial Unit Produced by LICENSEE or
any Affiliate or sub-licensee of PHER-02 or the Licensed Products or
Licensed Processes. Such royalty shall be paid quarterly, within thirty
(30) days from the end of each calendar quarter.
5.2 The obligation to pay royalties under this Article shall be
imposed only once with respect to the same Unit Produced regardless of the
number of valid patent claims of the Patent Rights that cover the same.
5.3 Royalty payments shall be paid in United States dollars at such
place as LICENSOR may reasonably designate consistent with the laws and
regulations controlling in any foreign country, but not in any other currency.
If any currency conversion shall be required in connection with the payment of
royalties hereunder, such conversion shall be made by using the exchange rate
prevailing at the Bank of America on the last business day of the calendar
quarterly reporting period to which such royalty payments relate.
ARTICLE VI - REPORTS AND RECORDS
6.1 LICENSEE shall keep full, true and accurate books of account
containing all particulars that may be necessary for the purpose of showing
the amounts payable to LICENSOR hereunder. Said books of account shall be
kept at LICENSEE's principal place of business . Not more often than once
each year during the term of this Agreement, upon receipt of thirty (30) days
prior written notice, LICENSEE shall allow LICENSOR or its agents to inspect
such books and records for the purpose of verifying LICENSEE's royalty
statement or compliance in other respects with this Agreement.
6.2 LICENSEE, within forty-five (45) days after June 30 and December
31 of each year, shall deliver to LICENSOR true and accurate reports, giving
such particulars of the business conducted by LICENSEE and its sub-licensees
during the preceding six-month period under this Agreement as shall be
pertinent to a royalty accounting hereunder. These shall include at least the
following, to be itemized per Licensed Product and Licensed Process:
(a) number of Licensed Products and Licensed Processes
commercially produced by, or for, LICENSEE and sub-
licensees;
(b) amount due to LICENSOR from Licensed Products and Licensed
Processes commercially produced;
(c) total royalties due.
6.3 With each such report submitted, LICENSEE shall pay to LICENSOR
the royalties due and payable under this Agreement. If no royalties shall be
due, LICENSEE shall so report.
6.4 LICENSOR shall keep all reports statements provided by LICENSEE
under this Article confidential.
ARTICLE VII - MAINTENANCE OF PATENT
LICENSOR, at its sole expense, shall diligently prosecute and maintain
the Patent Rights using counsel of its choice. LICENSOR shall provide
LICENSEE with copies of all relevant documentation so that LICENSEE may be
informed and appraised of the continuing maintenance and prosecution of the
Patent Rights, and LICENSEE agrees to keep this documentation confidential.
ARTICLE VIII - INFRINGEMENT
8.1 LICENSOR, as owner of the Patent Rights, pledges to control and be
responsible for all activities related to enforcing the Patent Rights.
LICENSEE as the exclusive user of the Patent Rights pursuant to the licensed
zone of ASIA, granted by this Agreement, shall assume primary responsibility
for enforcing the Patent Rights within ASIA. In exercising these
responsibilities, the PARTIES shall promptly contact alleged third party
infringers within the scope of their respective obligations and take all
reasonable steps to persuade such third parties to desist from infringing the
Patent Rights, including initiating and prosecuting an infringement action if
necessary, or defending a challenge to the validity of the Patent Rights.
Each PARTY also shall notify the other PARTY of each instance of alleged
infringement and shall keep each PARTY informed of all stages of Patent Rights
enforcement. All costs of any action to enforce the Patent Rights taken by a
PARTY shall be borne by same and may keep any recovery of damages derived
therefrom. No settlement, consent judgment or other voluntary final
disposition of the suit may be entered into without the consent of LICENSOR,
which consent shall not unreasonably be withheld.
8.2 In any infringement suit that either party may institute to
enforce the Patent Rights against third PARTIES pursuant to this Agreement,
the other PARTY hereto shall, at the request and expense of the party
initiating such suit, cooperate in all respects and, to the extent possible,
have its employees testify when requested and make available relevant records,
papers, information, samples, specimens, and the like.
8.3 Each PARTY shall promptly notify the other in writing in the event
that a third party shall bring a claim of infringement against LICENSOR or
LICENSEE, either in the United States or in any foreign country in which there
are Patent Rights. If the alleged infringement is so substantial as to
threaten the competitive position of LICENSEE and/or LICENSEE is temporarily
enjoined from exercise of its license hereunder, and if LICENSOR elects not to
defend against such claim, then LICENSEE may in its own name and at its sole
expense defend such claim and may compromise, settle or otherwise pursue such
defense in such a manner and on such terms as LICENSEE shall see fit.
LICENSOR, at its own expense and through counsel of its selection may become a
party to such defense and/or settlement and compromise. In any event,
LICENSOR shall have the right to defend, at its own expense, any such third
party claim or action, and, except for the licensed zone of ASIA, to settle or
compromise the same in such manner as its shall see fit. LICENSEE may
participate in such litigation or claim on its behalf at its own expense.
LICENSEE shall have the right to determine the terms of any settlement,
compromise or final determination of claim or suit, which, in any way,
involves the licensed zone of ASIA, No terms of such settlement, compromise
or final determination of a claim or suit involving the licensed zone of ASIA
shall conflict with any material provisions of this Agreement without the
express written consent of LICENSOR.
ARTICLE IX - LICENSOR REPRESENTATIONS AND WARRANTIES
LICENSOR hereby represents and warrants that it is the rightful owner of
all technologies, formulas and Patent Rights pertaining to this Agreement and
validly holds, such ownership and rights, and possesses the power and
authority to Grant such LICENSE and LICENSE RIGHTS to LICENSEE, and to
transfer all technologies pertaining therein, and to enter into this Agreement
with the power and authority to confer all rights pledged and perform
obligations made thereto.
ARTICLE X - INDEMNIFICATION, PRODUCT LIABILITY
LICENSEE and LICENSOR shall at all times during the term of this
Agreement and thereafter, indemnify, defend and hold each other, along with
their respective officers, directors, members, employees and affiliates,
harmless against all claims and expenses, including legal expenses and
reasonable attorneys' fees, arising out of the death of, or injury to, any
person or persons, or out of any damage to property, and against any other
claim, proceeding, demand, expense and liability of any kind whatsoever
resulting from each Party's respective production, manufacture, sale, use,
lease, consumption or advertisement of PHER-02, Licensed Products, Licensed
Processes, or arising from any other obligation incurred by either PARTY borne
from its own actions or otherwise not applicable to this Agreement hereunder.
ARTICLE XI - USE OF NAMES
LICENSEE shall not use the name of Sanguine Corporation, nor any of its
employees, nor any adaptation thereof, nor any symbol or mark of Sanguine
Corporation, in any advertising, promotional or sales literature, or for any
other commercial purpose, without prior written consent obtained from LICENSOR
in each case, except that LICENSEE may state that it is licensed by LICENSOR
under one or more of the patents and/or applications pertinent to this
Agreement. Notwithstanding the foregoing, LICENSEE shall possess all rights,
in all manners, including without limitation for all commercial, promotional,
technical or advertising purposes, to use the name, PHER-02, and any other
names associated with, or attributed to, any products, technologies, or
processes applicable to this Agreement. Such rights of use shall not require
LICENSOR's prior consent before LICENSEE'S use.
ARTICLE XII - ASSIGNMENT and SUB-LICENSE
12.1 This Agreement may be assigned by LICENSEE, in whole or part, at
LICENSEE's sole discretion to any Affiliate, as defined in Article I, without
the requirement of prior consent from LICENSOR, so long as assignee agrees to
be bound by the applicable terms and conditions of this Agreement and assumes
such terms and conditions in writing with a copy of same delivered to
LICENSOR.
12.2 LICENSOR hereby grants LICENSEE any and all rights and authority
to sub-license LICENSE RIGHTS of PHER-02, Licensed Products, Licensed
Processes, in whole or in part, at LICENSEE's sole discretion to the Livzon
Pharmaceutical Group, Inc., of Quangdong Province, China, a Shanghai listed
public company. Notwithstanding the foregoing, this Agreement may be assigned
by LICENSEE, in whole or part, to another party or parties of LICENSEE's
determination with the requirement of prior consent from LICENSOR. Such
consent from LICENSOR shall not be unreasonably withheld. All rights granted
to LICENSEE under the terms of this Agreement shall be conferred to all sub-
licensees.
12.3 LICENSEE agrees that any sublicenses granted by it shall provide
that the obligations to LICENSOR of Articles VIII, X, and XI of this Agreement
shall be binding upon the sub-licensee as if it were a party to this
Agreement. LICENSEE further agrees to attach copies of these sections and
articles to any sub-license agreements.
ARTICLE XIII - TERMINATION
13.1 LICENSOR may terminate this Agreement if LICENSEE becomes
insolvent or, a petition in bankruptcy is filed against LICENSEE and is
consented to, acquiesced in or remains undismissed for one hundred twenty
(120) days; or makes a general assignment for the benefit of creditors, or a
receiver is appointed for LICENSEE, and LICENSEE does not return to solvency
before the expiration of a one hundred twenty (120) day period.
13.2 Should LICENSEE fail to pay LICENSOR royalties due and payable
hereunder resulting in such amounts becoming past due for more than sixty (60)
days, LICENSOR shall have the right to terminate this Agreement pursuant to
the provisions of Section 13.3 below. Upon the expiration of the ninety (90)
day period as provided in Section 13.3 below, if LICENSEE shall not have paid
all such royalties then due and payable, the rights, privileges and license
granted hereunder shall terminate, unless LICENSEE's failure to pay arises
from a bona fide dispute concerning royalties due, in which case either of the
parties may elect to pursue the alternative disputes resolution provided by
Section 13.6 below.
13.3 Upon any material breach of this Agreement by LICENSEE, other than
those occurrences set out in Sections 13.1 and 13.2, LICENSOR shall have the
right to terminate this Agreement and the rights, privileges and license
granted hereunder by ninety (90) days' notice to LICENSEE. Such termination
shall become effective unless LICENSEE shall have cured any such breach prior
to the expiration of the ninety (90) day period.
13.4 LICENSEE shall be entitled to terminate this Agreement upon ninety
(90) days advance written notice to LICENSOR, in the event of LICENSOR'S
material breach of any of the provisions of this Agreement, which breach is
not cured (if capable of being cured) within such ninety (90) day notice
period. Upon delivering such notice of termination pursuant to this Section
13.4, LICENSEE may withhold any royalties or funds which may be due, but not
yet paid, to LICENSOR until final determination, adjudication, award of
judgement, or settlement of any damages incurred by LICENSEE as a result of
such material breach by LICENSOR. LICENSEE may, at its sole determination,
draw from such funds, as an offset against any damage award, settlement, or
judgement received by LICENSEE at any time after such award, settlement, or
judgement has been determined. LICENSEE shall accrue funds payable to
LICENSOR during the funds withholding period for the account of LICENSOR.
After any offset by LICENSEE is made against such funds, the balance of all
funds accrued shall be thereafter paid to LICENSOR.
13.5 Upon termination of this Agreement for any reason, nothing herein
shall be construed to release either PARTY from any obligation that matured
prior to the effective date of such termination. Notwithstanding the
foregoing, however, LICENSEE shall have the right for eighteen (18) months
thereafter to dispose of all Licensed Products then in its, or sub-licensee's
inventory, and shall pay royalties thereon, in accordance with the provisions
of this Agreement, as though this Agreement had not terminated.
13.6 Other than any claim arising from LICENSEE's failure to pay
royalties due under this contract, any controversy or bonafide disputed claim
arising between the PARTIES to this Agreement, which dispute cannot be
resolved by mutual agreement shall, by the election of either PARTY, be
resolved by submitting to binding arbitration for dispute resolution before an
independent, accredited arbitrator under the rules and regulations then in
effect of the American Arbitration Association, selected by mutual agreement
within thirty (30) days of written request by either PARTY. Said dispute
resolution shall be held in the county of Los Angeles, California or at such
other place as shall be mutually agreed upon in writing by the PARTIES. All
determinations of the arbitrator, including which Party shall bear the cost of
such arbitration, subject to rules of appeal under the guidelines established
by the American Arbitration Association, shall be binding upon the PARTIES.
ARTICLE XIV - PAYMENTS, NOTICES AND OTHER COMMUNICATIONS
Any payment, notice or other communication pursuant to this Agreement
shall be sufficiently made or given on the second business day following the
date of mailing if sent to the receiving party by express or certified first
class mail, postage prepaid, addressed to the receiving party at their address
below or as they shall designate by written notice given to the other party:
In the case of LICENSOR :
Sanguine Corporation
101 East Green Street, Suite 11
Pasadena, CA 91105
Attn: Thomas C. Drees, Ph.D.
In the case of LICENSEE:
Ascendiant - Asia, L.L.C.
18881 Von Karman, Suite 1630
Irvine, CA 92612
Attn: Mark Bergendahl
With copies to:
Lynne Bolduc, Esq.
c/o Oswald & Yap
16148 Sand Canyon
Irvine, CA 92618
ARTICLE XV - MISCELLANEOUS PROVISIONS
15.1 This Agreement shall be construed, governed, interpreted and
applied in accordance with the laws of the State of California, U.S.A., except
that questions affecting the construction and effect of any patent shall be
determined by the law of the country in which the patent was granted.
15.2 The PARTIES hereto agree that neither PARTY is restricted from
conducting any and all other lawful business which is not expressly related to
this Agreement, including without limitation to entering into other license
agreements with other parties, or in any other manner, and with any other
party, or entity that each PARTY deems desirable, whether or not such party or
entity may possess similar capabilities or products to the PARTIES herein, and
may do so without fear or implication of a conflict to this Agreement.
15.3 The PARTIES hereto acknowledge that this Agreement sets forth the
entire agreement and understanding of the PARTIES hereto as to the subject
matter hereof, and shall not be subject to any change or modification except
by the execution of a written instrument subscribed to by the parties hereto.
15.4 The provisions of this Agreement are severable. In the event that
any provisions of this Agreement shall be determined to be invalid or
unenforceable under any controlling body of the law, such invalidity or
unenforceability shall not in any way affect the validity or enforceability of
the remaining provisions hereof.
15.5 The failure of either party to assert a right hereunder or to
insist upon compliance with any term or condition of this Agreement shall not
constitute a waiver of that right or excuse a similar subsequent failure to
perform any such term or condition by the other party.
15.6 This Agreement may be executed in any number of counterparts and
each of such counterparts shall for all purposes be an original and all such
counterparts shall together constitute but one and the same agreement.
15.7 This Agreement along with all its terms shall be construed to
include the Parties' respective heirs, representatives, subsidiaries, merged
or acquired entities, successors, subsequent LICENSE, LICENSE RIGHTS, Patent
Rights holders, owners and/or assigns.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals
and duly executed this Agreement the day and year set forth below.
SANGUINE CORPORATION (SGNC)
By /s/Thomas C. Drees Date February 15, 2002
Thomas C. Drees, Ph.D.,
Chairman & CEO
** ADDITIONAL SIGNATURES FOLLOW**
Attest /s/Anthony G. Gargreaves Date February 15, 2002
Anthony G. Hargreaves,
Secretary, Sanguine Corporation
ASCENDIANT - ASIA, L.L.C.
By /s/ Mark Bergendahl Date February 15, 2002
Mark Bergendahl,
President & Managing Director