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full_contract_txt/2ThemartComInc_19990826_10-12G_EX-10.10_6700288_EX-10.10_Co-Branding Agreement_ Agency Agreement.txt

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+CO-BRANDING AND ADVERTISING AGREEMENT
+
+THIS CO-BRANDING AND ADVERTISING AGREEMENT (the "Agreement") is made as of June 21, 1999 (the "Effective Date") by and between I-ESCROW, INC., with its principal place of business at 1730 S. Amphlett Blvd., Suite 233, San Mateo, California 94402 ("i-Escrow"), and 2THEMART.COM, INC. having its principal place of business at 18301 Von Karman Avenue, 7th Floor, Irvine, California 92612 ("2TheMart").
+
+1. DEFINITIONS.
+
+(a) "CONTENT" means all content or information, in any medium, provided by a party to the other party for use in conjunction with the performance of its obligations hereunder, including without limitation any text, music, sound, photographs, video, graphics, data or software. Content provided by 2TheMart is referred to herein as "2TheMart Content" and Content provided by i-Escrow is referred to herein as "i-Escrow Content."
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+(b) "CO-BRANDED SITE" means the web-site accessible through Domain Name, for the Services implemented by i-Escrow. The homepage of this web-site will visibly display both 2TheMart Marks and i-Escrow Marks.
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+(c) "CUSTOMERS" means all users who access Co-Branded Site.
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+(d) "DOMAIN NAME" means www.iescrow.com/2TheMart.
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+(e) "ESCROW SERVICES" means services for auction sellers and high bidders whereby an agent holds a buyer's money in trust until the buyer approves the applicable item that was physically delivered, at which time the agent releases the buyer's money to seller, after subtracting the escrow fees.
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+(f) "INFORMATION TRANSFER MECHANISM" means the mechanism by which 2TheMart transfers to i-Escrow information to populate the applicable i-Escrow transaction and user registration forms.
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+(g) "LAUNCH DATE" means the first date on which the Co-Branded Site is pointed to in all references to i-Escrow from 2TheMart auction site, and the Information Transfer Mechanism is publicly deployed (post-beta).
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+(h) "MARKS" means all domain names, trademarks and logos designated by a party for the other party's use in conjunction with such other party's performance under this Agreement.  Marks designated by 2TheMart for i-Escrow's use are referred to herein as "2TheMart Marks" and Marks designated by i-Escrow for 2TheMart' use are referred to herein as "i-Escrow Marks."
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+(i) "SERVICES" means i-Escrow's implementation and performance of the Escrow Services as of the Effective Date, as modified over time.
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+(j) "SHADOW SITE" means the site where Co-Branded Site is made available for 2TheMart's testing of the Information Transfer Mechanism prior to being made publicly available.
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+(k) "TRANSACTION" means a transaction utilizing the Services that actually closes and that was initiated by a Transaction Inquiry from a Customer.
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+(l) "TRANSACTION INQUIRY" means a Customer's submission of i-Escrow's standard New Transaction Inquiry form (or its successor) on or through the Co-Branded Pages.  Currently this means entry of a description and price of merchandise by a user (buyer or seller) who agrees to abide by the terms and conditions of the Services, together with email address of the other party, regardless of whether or not any Transaction is completed.
+
+Source: 2THEMART COM INC, 10-12G, 8/26/1999
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+
+
+
+
+2. DEVELOPMENT AND IMPLEMENTATION.
+
+2.1 OVERVIEW.  As set forth herein, 2TheMart will promote Services to its auction users (buyers and sellers), and i-Escrow shall develop Co-Branded Site, and develop the Information Transfer Mechanism working with 2TheMart to make Services available seamlessly to Customers. Unless otherwise specified, each party shall be responsible for all development, hosting and other costs associated with the pages resident on their servers and all emails to users they send.
+
+2.2 INITIAL INFORMATION TRANSFER MECHANISM DEVELOPMENT. The parties shall negotiate in good faith to determine the initial operation of the Information Transfer Mechanism and to describe such operation and development fees, in a statement of work ("SOW").  Each party shall make available sufficient and qualified engineers to negotiate the SOW.  No SOW shall be binding on the parties unless mutually approved by both parties.  In the event that the parties are unable to agree to an SOW within 2 months following the Effective Date, either party may, in its sole discretion, terminate this Agreement by providing written notice.
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+Once approved, the parties shall use commercially reasonable efforts to diligently implement their respective obligations under the SOW.  Upon completion of its duties under the SOW, a party shall notify the other party and provide the other party with the opportunity to test and evaluate its work. i-Escrow shall make available the Shadow Site for such testing in a timely manner. Each party shall reasonably cooperate with the other party in effectuating their respective duties under the SOW.  The Information Transfer Mechanism shall not go live until its operation has been approved ("Approval Date") by both parties, such approval not to be unreasonably withheld.
+
+2.3 LAUNCH TIMING.  Each party shall use good faith and reasonable efforts to expeditiously develop the Co-Branded Pages and the Information Transfer Mechanism.  In the event that, after using such efforts, the Launch Date has not occurred within 4 months following the Effective Date, either party may terminate this Agreement by providing written notice.  If
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+only one party has used good faith and reasonable development efforts, only that party may exercise the foregoing right to terminate.
+
+2.4 RESTRICTIONS ON COMMUNICATIONS.  i-Escrow may place banner advertising on the Co-Branded Site upon prior written approval of 2TheMart, which shall be at the discretion of 2TheMart.  All advertising revenue arising from the banner ads shall be solely i-Escrow's.  i-Escrow shall not run banner advertisements on the Co-Branded Site for any of 2TheMart's competitors. 2TheMart shall provide in writing, a list of companies they would like to exclude, including every time they wish to change this list.
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+2.5 SERVICE PERFORMANCE OF INFORMATION TRANSFER MECHANISM.  The parties each shall in good faith work to provide reasonable service levels with respect to the operation of the portions of the Information Transfer Mechanism in their control.
+
+Source: 2THEMART COM INC, 10-12G, 8/26/1999
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+
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+
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+2.6 PROGRAM REVIEW MEETINGS.  The parties shall meet, at least once per month either in person, or by telephone, to coordinate the implementation of this agreement over time.
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+3. PROMOTION.
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+After Launch Date, 2TheMart will widely promote the Services:
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+(a) To every seller and high bidder through means including, but not limited to, end of auction emails containing links, such that, it shall be possible for the buyer or seller to initiate a Transaction Inquiry with i-Escrow, without having to re-enter all their personal or transaction related information.
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+(b)  By adding links to Co-Branded Site in FAQ section of 2TheMart auctions.
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+(c) By adding links to Co-Branded Site on the seller listing pages of 2TheMart auctions.
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+(d) By displaying a text or graphic link to a page containing information about Services on all auction item pages and bidding pages to educate bidders about i-Escrow. 2TheMart may use the "Escrow Services Description" attached in Exhibit A for creating such a page.
+
+5. PAYMENT.
+
+5.1 ADVERTISING FEES.  After the Launch Date, i-Escrow shall pay 2TheMart advertising fees based on the number of Transaction Inquiries. This advertising fees shall consist of a per Transaction Inquiry amount calculated by multiplying 0.025% by the amount of the average Transaction from all Customers in the preceding quarter. The formula for arriving at the per Transaction Inquiry amount may be revised from time to time during the term of this Agreement to reflect present market conditions ("the Adjusted Rate"), but only by mutual
+
+consent of the parties after good faith discussions. The Adjusted Rate shall be added as an addendum to this Agreement.
+
+5.2 REPORTING.  Within two (2) weeks following the end of each calendar quarter, i-Escrow shall provide to 2TheMart a report, describing for each quarter: the number of new registrations through the Co-Branded Pages; the number of Transaction Inquiries from Customers; the total number of Transactions from such inquiries; the total dollar value of the Transactions.
+
+5.3 AUDIT RIGHTS. i-Escrow shall keep for one (1) year proper records and books of account relating to the computation of advertising payments owed to 2TheMart (including, as appropriate, the computation of the size of average Transaction).  Once every twelve (12) months, 2TheMart through a CPA may inspect and audit such records to verify reports. Any such inspection will be conducted in a manner that does not unreasonably interfere with i-Escrow's business activities and with no less than fifteen (15) days notice. i-Escrow shall within two (2) weeks make any overdue payments disclosed by the audit. Such inspection shall be at 2TheMart's expense; however, if the audit reveals overdue payments in excess of ten percent (10%) of the payments owed to date, i-Escrow shall immediately pay all cost of such audit.
+
+6. RIGHTS AND STANDARDS.
+
+Source: 2THEMART COM INC, 10-12G, 8/26/1999
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+
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+6.1 CONTENT. 2TheMart hereby grants to i-Escrow a worldwide, non-exclusive right to use, reproduce, distribute, publicly perform, publicly display and digitally perform the 2TheMart Content soley with respect to  and in conjunction with the Co-Branded Site all with the prior written consent of 2TheMart, for the term of this Agreement.  i-Escrow hereby grants to 2TheMart a worldwide, non-exclusive right to use, reproduce, distribute, publicly perform, publicly display and digitally perform the i-Escrow Content on or in conjunction with 2TheMart auctions.
+
+6.2 CONTENT OWNERSHIP.  Except as otherwise provided in this Agreement, as between 2TheMart and i-Escrow: (a) 2TheMart and its suppliers retain all rights, title and interest in and to all intellectual property rights embodied in or associated with the 2TheMart Content, and b) i-Escrow and its suppliers retain all rights, title and interest in and to all intellectual property rights embodied in or associated with the i-Escrow Content and Co-Branded Site.  There are no implied licenses under this Agreement, and any rights not expressly granted are reserved. Neither party shall exceed the scope of the rights granted hereunder.
+
+6.3 TRADEMARKS.  Subject to the terms and conditions of this Agreement: (a) i-Escrow hereby grants to 2TheMart a non-exclusive, nontransferable right to use the i-Escrow Marks (including without limitation the Domain Name) in links to and advertisements and promotions for the Co-Branded Pages or the Services; and (b) 2TheMart hereby grants to i-Escrow a non-exclusive, nontransferable right to use 2TheMart Marks (including without limitation the Domain Name) on the Co-Branded Pages, and for the performance of  Services.
+
+6.4 TRADEMARK RESTRICTIONS.  The Mark owner may terminate the foregoing rights if, in its reasonable discretion, the other party's use of the Marks tarnishes, blurs or dilutes the quality associated with the Marks or the associated goodwill and such problem is not cured within ten (10) days of notice of breach; alternatively, instead of terminating the right in total, the
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+owner may specify that certain pages of the other party's web-site may not contain the Marks. Title to and ownership of the owner's Marks shall remain with the owner.  The receiving party shall use the Marks exactly in the form provided and in conformance with any trademark usage policies.  The other party shall not take any action inconsistent with the owner's ownership of the Marks, and any benefits accruing from use of such Marks shall automatically vest in the owner.  The other party shall not form any combination marks with the other party's Marks. Notwithstanding the foregoing, to the extent that the Domain Name is deemed a combination mark, neither party shall use the Domain Name for any purpose except as expressly provided herein or attempt to register the Domain Name, and the parties will jointly cooperate on any enforcement action of infringement of the Domain Name.
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+6.5 LIMITS ON SUBLICENSING.  All rights (under any applicable intellectual property right) granted herein are not sublicenseable,
+
+Source: 2THEMART COM INC, 10-12G, 8/26/1999
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+
+
+
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+transferable or assignable.  Notwithstanding the foregoing, either party may use a third party web host, but all actions or failures to act of the web host that would be a breach of this Agreement, were the actions or failures to act taken by the applicable party, shall be deemed a breach of this Agreement.  In addition, 2TheMart may grant sublicenses to companies that 2TheMart has a business relationship with to the extent that 2TheMart Content is visible from such company's web-site through a link or other means.
+
+6.6 CONTENT STANDARDS. 2TheMart shall not provide any 2TheMart Content, and i-Escrow shall not provide any i-Escrow Content, that: (a) infringes any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (b) violates any law, statute, ordinance or regulation (including without limitation the laws and regulations governing export control, unfair competition, antidiscrimination or false advertising); (c) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; (d) is obscene, harmful to minors or child pornographic; (e) contains any viruses, Trojan horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; and (f) is materially false, misleading or inaccurate.
+
+6.7  SERVICE STANDARDS. i-Escrow will comply with all laws and regulations and act as an Independent Escrow Agent as per the guidelines of California Escrow Law (California Financial Code Section17000 et seq., or its successor).  Should any of the terms, conditions or provisions of this Agreement conflict with the California Escrow Law, its rules or regulations, which govern i-Escrow's business practices, the California Escrow Law shall prevail. Notwithstanding the foregoing, at any time that i-Escrow reasonably believes such a conflict exists, i-Escrow will give 2TheMart written notice of such conflict and the parties will use their best efforts to resolve such conflict.
+
+7. DISCLAIMER OF WARRANTIES.  EACH PARTY PROVIDES ALL MATERIALS AND SERVICES TO THE OTHER PARTY "AS IS."  EACH PARTY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-
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+INFRINGEMENT, MERCHANTABILITY ANDFITNESS FOR A PARTICULAR PURPOSE.  Each party acknowledges that it has not entered into this Agreement in reliance upon any warranty or representation except those specifically set forth herein.
+
+8. TERM AND TERMINATION.
+
+8.1 TERM.  The term of this Agreement shall continue for one (1) year following the Launch Date, unless earlier terminated as provided herein. This Agreement may be renewed for any number of successive one (1) year terms by mutual written agreement of the parties prior to the conclusion of the term of this Agreement.  A party wishing to renew this Agreement shall give the other party notice thereof no less than thirty (30) days before the expiration of the term then in effect.  In the event that either party does not give such notice, the term of this Agreement shall be automatically renewed for another one (1) year.
+
+Source: 2THEMART COM INC, 10-12G, 8/26/1999
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+
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+
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+8.2 TERMINATION FOR BREACH.  In addition to other remedies that may be available to it, by providing written notice, a party may immediately terminate this Agreement: (a) if the other party materially breaches this Agreement and fails to cure that breach within sixty (60) days after receiving written notice of the breach, or (b) as provided in Sections 2.2  [INITIAL INFORMATION TRANSFER MECHANISM DEVELOPMENT], 2.4  [RESTRICTIONS ON COMMUNICATIONS], or 12.4.
+
+8.3 TERMINATION FOR CHANGE IN COMPANY STRUCTURE.  If a majority of the equity securities of either 2TheMart or i-Escrow, Inc. (except that i-Escrow may sell all or a majority of its equity securities or voting interests to i-Escrow.com, and i-Escrow.com may sell all or a majority of its equity securities or voting interests to i-Escrow's existing shareholders, without triggering the foregoing) are acquired by another company during the term of this Agreement either company may terminate this Agreement, without liability, by giving a thirty (30) days written notice to the other party.
+
+8.4 TERMINATION FOR BANKRUPTCY. Either party may terminate or suspend this Agreement effective immediately and without liability upon written notice to the other party if any one of the following events occurs:
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+(a) the other party files a voluntary petition in bankruptcy or otherwise seeks protection under any law for the protection of debtors;
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+(b) a proceeding is instituted against the other party under any provision of any bankruptcy laws which is not dismissed within ninety (90) days;
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+(c) the other party is adjudged  bankrupt;
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+(d) a court assumes jurisdiction of all or a substantial portion of the assets of the other party under a reorganization law;
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+(e) a trustee or receiver is appointed by a court for all or a substantial portion of the assets of the other party;
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+(f) the other party becomes insolvent, ceases or suspends all or substantially all of its business; or
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+(g) the other party makes an assignment of the majority of its assets for the benefit of its creditors.
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+8.5 EFFECTS OF TERMINATION.  Upon expiration or termination of this Agreement for any reason: (a) all rights granted herein shall terminate, (b) i-Escrow shall pay all amounts owed to 2TheMart within six (6) weeks of termination, and (c) each party shall remove the other party's content and Marks from their servers.  Notwithstanding the foregoing, unless this Agreement was terminated for a material breach, all provisions of this Agreement shall survive to the extent necessary for i-Escrow to complete any Customer transactions which are pending at the time of expiration or termination.  Sections 1, 7,  8.5  [EFFECTS OF TERMINATION], 9, 10, 11 and 12 shall survive expiration or termination of this Agreement.
+
+9. INDEMNITY.  Each party (the "Indemnifying Party") shall indemnify the other party (the "Indemnified Party") against any and all claims, losses, costs and expenses, including reasonable attorneys' fees, which the Indemnified Party may incur as a result of claims in any form by third parties arising from the Indemnifying Party's acts, omissions or misrepresentations to the extent that the Indemnified Party is deemed a principal of the Indemnifying Party.  In addition, 2TheMart shall indemnify i-Escrow against any and all claims, losses, costs and expenses, including reasonable attorneys' fees, which i-Escrow may incur as a result of claims in any form by third parties arising from 2TheMart Content.  In addition, i-Escrow shall indemnify 2TheMart against any and all claims, losses, costs and expenses, including reasonable attorneys' fees, which 2TheMart may incur as a result of claims in any form by third parties arising from i-Escrow
+
+Source: 2THEMART COM INC, 10-12G, 8/26/1999
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+
+
+
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+Content and or the Services provided to Customers.  The foregoing obligations are conditioned on the Indemnified Party: (i) giving the Indemnifying Party notice of the relevant claim, (ii) cooperating with the Indemnifying Party, at the Indemnifying Party's expense, in the defense of such claim, and (iii) giving the Indemnifying Party the right to control the defense and settlement of any such claim, except that the Indemnifying Party shall not enter into any settlement that affects the Indemnified Party's rights or interest without the Indemnified Party's prior written approval. The Indemnified Party shall have the right to participate in the defense at its expense.
+
+10. LIMITATION ON LIABILITY.  EXCEPT IN THE EVENT OF A BREACH OF SECTION 11, NEITHER PARTY SHALL BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS (HOWEVER ARISING, INCLUDING NEGLIGENCE) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF THE PARTIES ARE AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
+
+11. CONFIDENTIAL INFORMATION.  A party's "Confidential Information" is defined as any confidential or proprietary information of a party which is disclosed to the other party in a writing marked confidential or, if disclosed orally, is identified as confidential at the time of disclosure and is subsequently reduced to a writing marked confidential and delivered to the
+
+other party within ten (10) days of disclosure.  Each party shall hold the other party's Confidential Information in confidence and shall not disclose such Confidential Information to third parties nor use the other party's Confidential Information for any purpose other than as required to perform under this Agreement. Such restrictions shall not apply to Confidential Information which (a) is already known by the recipient, (b) becomes, through no act or fault of the recipient, publicly known, (c) is received by recipient from a third party without a restriction on disclosure or use, or (d) is independently developed by recipient without reference to the Confidential Information.  The restriction on disclosure shall not apply to Confidential Information which is required to be disclosed by a court or government agency. Upon expiration or termination of this Agreement, within fourteen (14) days of the other party's request, each party will return all Confidential Information and other deliverables to the requesting party.
+
+12. GENERAL PROVISIONS.
+
+12.1 GOVERNING LAW.  This Agreement will be governed and construed in accordance with the laws of the State of California without giving effect to conflict of laws principles.  Both parties submit to personal jurisdiction in California and further agree that any cause of action arising under this Agreement shall be brought in a court in Orange County, California.
+
+12.2 SEVERABILITY; HEADINGS.  If any provision herein is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way.  The parties agree to replace any invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision.  Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
+
+12.3 PUBLICITY.  Prior to the release of any press releases or other similar promotional materials related to this Agreement, the releasing party shall submit a written request for approval to the other party with a copy of the materials to be released, which
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+Source: 2THEMART COM INC, 10-12G, 8/26/1999
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+
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+
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+request shall be made no less than three (3) business days prior to the requested release date.  A party shall not unreasonably withhold or delay the granting of its approval of such materials, and such approval shall be provided to the other party within one (1) business day of receipt
+
+12.4 FORCE MAJEURE.  Except as otherwise provided, if performance hereunder (other than payment) is prevented, restricted or interfered with by any act or condition whatsoever beyond the reasonable control of a party (a "force majeure event"), the party so affected, upon giving prompt notice to the other party, shall be excused from such performance to the extent of such prevention, restriction or interference.  However, if a force majeure event interferes with the operation of this Agreement for sixty (60) days or more, either party can terminate this Agreement, without penalty.  Notwithstanding the foregoing, the occurrence of any force majeure event shall not limit either party's obligations under Section 9 with respect to any third party claim as to which the other party seeks indemnification.
+
+12.5 INDEPENDENT CONTRACTORS.  The parties are independent contractors, and no agency, partnership, joint venture, employee- employer or franchisor-franchisee relationship is
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+intended or created by this Agreement.  Neither party shall make any warranties or representations on behalf of the other party.
+
+12.6 NOTICE.  Any notices hereunder shall be given to the appropriate party at the address specified below or at such other address as the party shall specify in writing.  Notice shall be deemed given: upon personal delivery; if sent by fax, upon confirmation of receipt; or if sent by a reputable overnight courier with tracking capabilities, one (1) day after the date of mailing: To i-Escrow:            i-Escrow, Inc.                         1730 South Amphlett Blvd., #215                         San Mateo, CA 94402                         Fax no. (650) 638-7890                         Attention:  President
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+With copy to:           Fred M. Greguras, Esq.                         Legal Counsel of i-Escrow                         Fenwick & West LLP                         Two Palo Alto Square                         Palo Alto, CA 94306
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+To 2TheMart:            Dominic J. Magliarditi                         President                         18301 Von Karman Avenue,                         7th Floor                         Irvine, CA 92612                         Fax no. (949) 477-1221
+
+11.7 COUNTERPARTS.  This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall be taken together and deemed to be one instrument.
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+12.8 GOOD FAITH.  The parties agree to act in good faith with respect to each provision of this Agreement and any dispute that may arise related hereto.
+
+12.9 ADDITIONAL DOCUMENTS/INFORMATION. The parties agree to sign and/or provide such additional documents and/or information as may reasonably be required to carry out the intent of this Agreement and to effectuate its purposes.
+
+12.10 RIGHTS AND REMEDIES CUMULATIVE. The rights and remedies provided herein will be cumulative and not exclusive of any other rights or remedies provided by law or otherwise.
+
+12.11 NONWAIVER.   No failure or forbearance by either party to exercise any right or insist upon or enforce performance of any obligation hereunder shall be deemed a waiver or relinquishment to any extent of that or any other right or obligation, in that or any other instance; rather, the
+
+Source: 2THEMART COM INC, 10-12G, 8/26/1999
+
+
+
+
+
+same shall be and shall remain in full force and effect. Any waiver of any right of a party or any obligation of the other party hereunder must be made in a writing signed by the arty waiving such right or obligation.
+
+12.12 ENTIRE AGREEMENT.  This Agreement contains the entire understanding of the parties hereto with respect to the transactions and matters contemplated hereby, supersedes all previous Agreements between i-Escrow and 2TheMart concerning the subject matter (except for the Confidential Agreement Dated January 4 1999, which shall survive this Agreement).  No amendments or supplements to this Agreement will be effective for any purpose except by a written Agreement signed by the parties.  No party hereto has relied on any statement, representation or promise of any party or with any other officer, agent, employee or attorney for the other party in executing this Agreement except as expressly stated herein.
+
+2THEMART.COM, INC.:                         I-ESCROW, INC.:
+
+By:/s/Dominic J. Magliarditi                By:/s/Sanjay Bajaj Name: Dominic J. Magliarditi                Name: Sanjay Bajaj Title: President                            Title: VP Business Development Date: 6/21/99                               Date: 6/11/99
+
+        EXHIBIT A
+
+ESCROW SERVICES DESCRIPTION
+
+Successful completion of a transaction involves exchange of merchandise with payment. The buyer has to be satisfied he/she received what they thought they were getting and the seller has to be sure he/she gets paid. i-Escrow holds payment from the buyer in trust until the seller sends the merchandise to the buyer. Once the buyer accepts the merchandise, i-Escrow forwards the payment to the seller by writing a check.  A typical escrow transaction: When an auction ends, your end of auction email contains links to i-Escrow. Once you have signed up with i-Escrow   you go through the following steps to complete your transaction. 1.   Start a transaction by entering the description and price of the merchandise along with email address of the other party. 2.   The other party receives an email from i-Escrow requesting an acknowledgement of the terms of the transaction. 3.   Once the transaction is acknowledged by the other party, the buyer pays i-Escrow the agreed upon price, by credit card or other means. 4.   i-Escrow informs the seller that payment has been received, requesting them to ship the merchandise directly to the buyer. 5.   The seller provides i-Escrow with the tracking number of the shipment. 6.   The buyer receives and accepts the merchandise. 7.   i-Escrow sends the check to the seller.
+
+For more information about I-Escrow, visit their web-site at www.iescrow.com
+
+Source: 2THEMART COM INC, 10-12G, 8/26/1999

full_contract_txt/ABILITYINC_06_15_2020-EX-4.25-SERVICES AGREEMENT.txt

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+EXHIBIT 4.25 INFORMATION IN THIS EXHIBIT IDENTIFIED BY [ * * * ] IS CONFIDENTIAL AND HAS BEEN EXCLUDED BECAUSE IT IS BOTH (I) NOT MATERIAL AND (II) WOULD LIKELY CAUSE COMPETITIVE HARM TO THE REGISTRANT IF PUBLICLY DISCLOSED. SERVICES AGREEMENT This Services Agreement (this "Agreement") is entered into on October 1, 2019 and is made effective as of November 1, 2019 (the "Effective Date"), by and between [ * * * ] (the "Provider"), and TELCOSTAR PTE, LTD., a company organized and existing under the laws of Singapore and Ability Computer & Software Industries Ltd, a company organized and existing under the laws of the State of Israel (each and both of them "Recipient"). Each of the foregoing parties is referred to herein as a "Party" and together as the "Parties". RECITALS A. Recipient wishes to engage the Provider to provide certain services and resources (the "Services") and Provider desires to provide Recipient with the Services all in accordance with the terms and conditions set forth herein. AGREEMENT The Parties hereby agree as follows: 1. Services. 1.1 Provision of Services. (a) Provider agrees to provide the Services set forth on the Exhibit A attached hereto (as such Exhibit may be amended or supplemented pursuant to the terms of this Agreement, the "Exhibit") to Recipient for the respective periods and on the other terms and conditions set forth in this Agreement and in the Exhibit. Notwithstanding the contents of the Exhibit, Provider agrees to respond in good faith to any reasonable request by Recipient for access to any additional services and resources that are necessary for the operation of the Recipient and which are not currently contemplated in the Exhibit, at a price to be agreed upon after good faith negotiations between the Parties. Any such additional services and resources so provided by Provider shall constitute Services under this Agreement and be subject in all respect to the provisions of this Agreement as if fully set forth on the Exhibit as of the date hereof. (b) Recipient may freely assign its rights under this Agreement to receive the Services to any of its affiliates. 1.2 Standard of Service. (a) Provider represents, warrants and agrees that the Services shall be provided in good faith, in accordance with applicable law and in a manner generally consistent with the historical provision of the Services and with the same standard of care as historically provided. (b) Provider shall maintain complete and accurate records relating to the provision of the Services under this Agreement, in such form as Recipient shall approve.
+
+
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+
+
+(c) Provider shall use its best efforts to provide for employees or contractors to perform the Services, each of whose names, positions, and respective levels of experience and relevant licenses shall be set out in Exhibit A attached hereto (collectively, the "Provider Representatives"). Provider may not make any change in the Provider Representatives without the prior consent of the Recipient. Provider Representatives shall be dedicated to solely providing the Services to Recipient and shall not provide any such services or resources to Provider or any other customer of Provider. (d) Recipient acknowledges that this Agreement does not create a fiduciary relationship, partnership, joint venture or relationships of trust or agency between the Parties and that all Services are provided by Provider as an independent contractor. (e) Notwithstanding anything to the contrary in this Section 1.2: (a) in the event that Provider uses any subcontractors to perform any Services, Provider is not released from responsibility for its obligations under this Agreement; (b) Provider shall remain fully responsible, financially and otherwise, for the Services provided by each subcontractor to the same extent as if Provider had performed the Services itself (subject to the limitations set forth in this Agreement) and agrees to pay the fees and expenses of any such subcontractor; (c) Provider shall remain ultimately responsible for ensuring that the Services are provided and any such subcontractor performs any such obligations in accordance with the terms of this Agreement, and (d) the obligations with respect to the nature, quality and standards of care set forth in Section 1.2 are satisfied with respect to any Service provided by any subcontractor. (f) Provider shall at all times during the term of this Agreement maintain, or cause to be maintained, the computer software and computer hardware that is used in connection with the Services with substantially the same degree of care, skill and diligence with which Provider maintains, or causes to be maintained, as of the Effective Date, such computer software and computer hardware for itself, consistent with past practices, as of the Effective Date, including without limitation, with respect to type, quality and timeliness of such maintenance. 1.3 Additional Services. Nothing in this Agreement shall be construed to prevent the Recipient from itself performing or from acquiring services from other providers that are similar to or identical to the Services. 1.4 Intellectual Property. (a) Recipient shall own, and Provider hereby irrevocably assigns to the Recipient, all rights, title, and interest in any invention, technique, process, device, discovery, improvement, or know-how, whether patentable or not and all other proprietary rights, industrial rights and any other similar rights, in each case on a worldwide basis, and all copies and tangible embodiments thereof, or any part thereof, in whatever form or medium hereafter made or conceived solely or jointly by Provider while working for or on behalf of the Recipient, which relate to, is suggested by, or results from the Services. (b) At Recipient's request, Provider shall disclose any such invention, technique, process, device, discovery, improvement, or know-how promptly to Recipient. Provider shall, upon request of Recipient, promptly execute a specific assignment of title to Recipient, and do anything else reasonably necessary to enable Recipient to secure for itself, patent, trade secret, or any other proprietary rights.
+
+2
+
+
+
+
+
+(c) All writings or works of authorship, including, without limitation, program codes or documentation, produced or authored by Provider in the course of performing services for the Recipient, together with any associated copyrights, are works made for hire and the exclusive property of the Recipient. To the extent that any writings or works of authorship may not, by operation of law, be works made for hire, this Agreement shall constitute an irrevocable assignment by Provider to the Recipient of the ownership of and all rights of copyright in, such items, and the Recipient shall have the right to obtain and hold in its own name, rights of copyright, copyright registrations, and similar protections which may be available in the works. Provider shall give the Recipient or its designees all assistance reasonably required to perfect such rights. 2. Compensation. 2.1 Responsibility for Wages and Fees. For such time as any employees of Provider are providing the Services to Recipient under this Agreement, (a) such employees will remain employees of Provider and shall not be deemed to be employees of Recipient for any purpose, and (b) Provider shall be solely responsible for the payment and provision of all wages, bonuses and commissions, employee benefits, including severance and worker's compensation, and the withholding and payment of applicable taxes relating to such employment. 2.2 Terms of Payment and Related Matters. (a) As consideration for provision of the Services following the Effective Date, Recipient shall pay Provider an amount equal to Provider's actual cost of providing the Services plus a 10% service fee. In addition to such amount, in the event that Provider incurs reasonable and documented out-of-pocket expenses in the provision of any Service, including, without limitation, license fees and payments to third-party service providers or subcontractors (such included expenses, collectively, "Out-of-Pocket Costs"), Recipient shall reimburse Provider for all such Out-of-Pocket Costs. (b) (i) Provider shall provide Recipient with monthly invoices ("Invoices"), which shall set forth in reasonable detail, with such supporting documentation as Recipient may reasonably request with respect to Out-of-Pocket Costs, amounts payable under this Agreement, and (ii) payments pursuant to this Agreement shall be made within fifteen (15) days after the date of receipt of an Invoice by Recipient from Provider. (c) Provider shall allow the Recipient to use [ * * * ] at no cost, until December 31, 2021. 2.3 Invoice Disputes. In the event of an Invoice dispute, Recipient shall deliver a written statement to Provider prior to the date payment is due on the disputed Invoice listing all disputed items and providing a reasonably detailed description of each disputed item. Amounts not so disputed shall be deemed accepted and shall be paid, notwithstanding disputes on other items. The Parties shall seek to resolve all such disputes expeditiously and in good faith. Provider shall continue performing the Services in accordance with this Agreement pending resolution of any dispute.
+
+3
+
+
+
+
+
+2.4 No Right of Setoff. Each of the Parties hereby acknowledges that it shall have no right under this Agreement to offset any amounts owed (or to become due and owing) to the other Party, whether under this Agreement, the Purchase Agreement or otherwise, against any other amount owed (or to become due and owing) to it by the other Party. 3. Termination. 3.1 Termination of Agreement. This Agreement be deemed effective as of the Effective Date, Agreement and shall terminate on December 31, 2020, unless terminated earlier in accordance with Section 3.2. 3.2 Each of the Recipient and the Provider may, in their sole discretion, terminate this Agreement in whole or in part, at any time without cause, and without liability except, in the case of the Recipient, for required payment for services rendered and reimbursement for authorized expenses incurred, by providing at least 90 (ninety) days' prior written notice to the other party (such date, the "Services Termination Date"). 3.3 Breach. Any Party (the "Non-Breaching Party") may terminate this Agreement with respect to any Service, in whole but not in part, at any time upon prior written notice to the other Party (the "Breaching Party"), if the Breaching Party has failed (other than pursuant to Section 3.6) to perform any of its material obligations under this Agreement relating to such Service, and such failure shall have continued without cure for a period of 30 days after receipt by the Breaching Party of a written notice of such failure from the Non-Breaching Party seeking to terminate such service. For the avoidance of doubt, non-payment by Recipient for a Service provided by Provider in accordance with this Agreement and not the subject of a good-faith dispute shall be deemed a breach for purposes of this Section 3.3. 3.4 Insolvency. In the event that either Party hereto shall (a) file a petition in bankruptcy, (b) become or be declared insolvent, or become the subject of any proceedings (not dismissed within sixty (60) days) related to its liquidation, insolvency or the appointment of a receiver, (c) make an assignment on behalf of all or substantially all of its creditors, or (d) take any corporate action for its winding up or dissolution, then the other party shall have the right to terminate this Agreement by providing written notice in accordance with Section 6.6. 3.5 Effect of Termination. Upon termination of this Agreement in its entirety pursuant to Section 3.1, all obligations of the Parties hereto shall terminate, except for the provisions of Section 2.2, and the entirety of Sections 4, 5 and 6, which shall survive any termination or expiration of this Agreement. 3.6 Upon expiration or termination of this Agreement for any reason, Provider shall promptly: (a) Deliver to Recipient all documents, work product, and other materials, whether or not complete, prepared by or on behalf of Provider in the course of performing the Services for which Recipient has paid. (b) Return to Recipient all Recipient -owned property, equipment, or materials in its possession or control.
+
+4
+
+
+
+
+
+(c) Remove any Provider-owned property, equipment, or materials located at Recipient's locations. (d) Deliver to Recipient, all documents and tangible materials (and any copies) containing, reflecting, incorporating, or based on Recipient's Confidential Information. (e) On a pro rata basis, repay all fees and expenses paid in advance for any Services which have not been provided. (f) Permanently erase all of Recipient's Confidential Information from its computer systems. (g) Certify in writing to Recipient that it has complied with the requirements of this Section 3.6 3.7 Force Majeure. If Provider is prevented from or delayed in complying, either totally or in part, with any of the terms or provisions of this Agreement by reason of fire, flood, storm, strike, lockout or other labor trouble or shortage, delays by unaffiliated suppliers or carriers, shortages of fuel, power, raw materials or components, any law, order, proclamation, regulation, ordinance, demand, seizure or requirement of any governmental authority, riot, civil commotion, war, rebellion, acts of terrorism, nuclear accident or other causes beyond the reasonable control of Provider, or acts, omissions, or delays in acting by any governmental or military authority or Recipient (each, a "Force Majeure"), then upon written notice to Recipient, the Services affected by the Force Majeure (the "Affected Services") and/or other requirements of this Agreement will be suspended during the period of such Force Majeure and Provider will have no liability to Recipient or any other party in connection with such Affected Services. If the Force Majeure in question prevails for a continuous period in excess of three months after the date on which the Force Majeure begins, Provider shall be entitled to give notice to Recipient to terminate the Affected Services. The notice to terminate must specify the termination date, which must be not less than ten (10) days after the date on which the notice to terminate is given. Once a notice to terminate has been validly given, the Affected Services will terminate on the termination date set out in the notice. Neither Party shall have any liability to the other in respect of termination of the Affected Services due to Force Majeure, but rights and liabilities which have accrued prior to termination shall subsist.
+
+5
+
+
+
+
+
+4. Confidentiality. 4.1 Confidentiality. During the term of this Agreement and thereafter, the Parties hereto shall, and shall instruct their respective representatives to, maintain in confidence and not disclose the other Party's financial, technical, sales, marketing, development, personnel, and other information, records, or data, including, without limitation, customer lists, supplier lists, trade secrets, designs, product formulations, product specifications or any other proprietary or confidential information, however recorded or preserved, whether written or oral (any such information, "Confidential Information"). Each Party hereto shall use the same degree of care, but no less than reasonable care, to protect the other Party's Confidential Information as it uses to protect its own Confidential Information of like nature. Unless otherwise authorized in any other agreement between the Parties, any Party receiving any Confidential Information of the other Party (the "Receiving Party") may use Confidential Information only for the purposes of fulfilling its obligations under this Agreement (the "Permitted Purpose"). Any Receiving Party may disclose such Confidential Information only to its representatives who have a need to know such information for the Permitted Purpose and who have been advised of the terms of this Section 4.1 and the Receiving Party shall be liable for any breach of these confidentiality provisions by such Persons; provided, however, that any Receiving Party may disclose such Confidential Information to the extent such Confidential Information is required to be disclosed by law, in which case the Receiving Party shall promptly notify, to the extent possible, the disclosing party (the "Disclosing Party"), and take reasonable steps to assist in contesting such disclosure requirement or in protecting the Disclosing Party's rights prior to disclosure, and in which case the Receiving Party shall only disclose such Confidential Information that it is advised by its counsel in writing that it is legally bound to disclose. Notwithstanding the foregoing, "Confidential Information" shall not include any information that the Receiving Party can demonstrate: (a) was publicly known at the time of disclosure to it, or has become publicly known through no act of the Receiving Party or its representatives in breach of this Section 4.1, (b) was rightfully received from a third party without a duty of confidentiality, or (c) was developed by it independently without any reliance on the Confidential Information. 4.2 Return of Confidential Information. Upon demand by the Disclosing Party at any time, or upon expiration or termination of this Agreement with respect to any Service, the Receiving Party agrees promptly to return or destroy, at the Disclosing Party's option, all Confidential Information received in connection with this Agreement. If such Confidential Information is destroyed, an authorized officer of the Receiving Party shall certify to such destruction in writing. 5. Indemnification. 5.1 Indemnification. Provider shall indemnify, defend, and hold harmless Recipient and its officers, directors, employees, agents, affiliates, successors, and permitted assigns (collectively, "Indemnified Party") against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys' fees, fees and the costs of enforcing any right to indemnification under this Agreement, and the cost of pursuing any insurance providers, incurred by Indemnified Party or awarded against Indemnified Party (collectively, "Losses"), relating to/arising out of or resulting from any claim of a third party or Recipient arising out of or occurring in connection with Provider's negligence, willful misconduct, or breach of this Agreement. Provider shall not enter into any settlement without Recipient's or Indemnified Party's prior written consent. 6. Miscellaneous. 6.1 Entire Agreement. This Agreement, the Purchase Agreement and the documents referred to herein and therein constitute the entire agreement among the Parties and supersedes any prior understandings, agreements, or representations by or among the Parties, written or oral, to the extent they relate in any way to the subject matter hereof.
+
+6
+
+
+
+
+
+6.2 Succession and Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties named herein and their respective successors and permitted assigns. Provider may not assign, delegate or otherwise transfer either this Agreement or any of its rights, interests, or obligations hereunder without the prior written approval of Recipient. 6.3 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together will constitute one and the same instrument. Counterparts may be delivered via facsimile and electronic mail (including portable document format (PDF) or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com). 6.4 Titles and Headings. Titles and section headings contained in this Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement. 7. Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile or e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the following addresses (or at such other address for a party as shall be specified in a notice given in accordance with this Section 7: If to Provider: [ * * * ] With a copy to: N/A If to Recipient: TELCOSTAR PTE. LTD 6 Eu Tong Sen Street Tel Aviv, Israel, 6770007 #10-15 The Central Singapore 059817 Email: [email protected] Attention: Avi Levin With a copy to: McDermott Will & Emery LLP 340 Madison Avenue New York, NY 10173-1922 Telephone: (212) 547-5541 Facsimile: (212) 547-5444 EMAIL: [email protected] Attention: Gary Emmanuel
+
+7
+
+
+
+
+
+Any Party may change the address to which notices, requests, demands, claims, and other communications hereunder are to be delivered by giving the other Parties notice in the manner herein set forth. 7.1 Further Assurances. The Parties agree (a) to furnish upon request to each other such further information, (b) to execute and deliver to each other such other documents, and (c) to do such other acts and things, all as the other party may reasonably request for the purpose of carrying out the intent of this Agreement and the documents referred to in this Agreement. 7.2 Governing Law. This Agreement and any claim, controversy or dispute arising out of or related to this Agreement, any of the transactions contemplated hereby and/or the interpretation and enforcement of the rights and duties of the Parties, whether arising in contract, tort, equity or otherwise, shall be governed by and construed in accordance with the domestic laws of the State of Israel (including in respect of the statute of limitations or other limitations period applicable to any such claim, controversy or dispute), without giving effect to any choice or conflict of law provision or rule (whether of the State of Israel or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Israel. 7.3 Consent to Jurisdiction. The Parties hereby irrevocably submit any disputes under this Agreement to the exclusive jurisdiction of the courts located in Tel-Aviv, Israel, provided however, that Recipient shall be entitled to seek an injunction or other appropriate remedy against Provider in the country in which Provider has acted in breach of the terms hereof. 7.4 Specific Performance. The Parties hereby agree that, in the event of breach of this Agreement, damages would be difficult, if not impossible, to ascertain and that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. Accordingly, it is hereby agreed that the Parties shall be entitled to seek an injunction or other equitable relief in any court of competent jurisdiction to enjoin any such breach and enforce specifically the terms and provisions hereof, this being in addition to any other remedy or right to which they are entitled at law or in equity, without any necessity of proving damages or any requirement for the posting of a bond or other security. 7.5 Amendments and Waivers. No amendment of any provision of this Agreement shall be valid unless the same shall be in writing and signed by Recipient and the Provider. No waiver by any Party of any provision of this Agreement or any default, misrepresentation, or breach of warranty or covenant hereunder, whether intentional or not, shall be valid unless the same shall be in writing and signed by the Party making such waiver nor shall such waiver be deemed to extend to any prior or subsequent default, misrepresentation, or breach of warranty or covenant hereunder or affect in any way any rights arising by virtue of any prior or subsequent such occurrence.
+
+8
+
+
+
+
+
+7.6 Severability. Any term or provision of this Agreement that is held invalid or unenforceable by a court of competent jurisdiction or other competent governmental authority in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. Upon such a determination, the Parties shall negotiate in good faith to replace invalid or unenforceable provisions with valid provisions, the economic effect of which comes as close as possible to that of the invalid or unenforceable provisions. 7.7 Construction. The Parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement. Any reference to any law shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise. The word "including" shall mean including without limitation. 7.8 Incorporation of Exhibits and Disclosure Schedule. The Exhibit identified in this Agreement is incorporated herein by reference and made a part hereof. 7.9 Amendment and Restatement. This Agreement amends and restates in full the Production Contract. [SIGNATURE PAGE FOLLOWS]
+
+9
+
+
+
+
+
+IN WITNESS WHEREOF, the Parties have executed this Services Agreement as of the date first written above. PROVIDER: RECIPIENT: [ * * * ] [ * * * ] By: By: Name: Name: Title: Title:
+
+10
+
+
+
+
+
+EXHIBIT A Services [ * * * ] 11

full_contract_txt/ACCELERATEDTECHNOLOGIESHOLDINGCORP_04_24_2003-EX-10.13-JOINT VENTURE AGREEMENT.txt

@@ -0,0 +1,87 @@
+EXHIBIT 10.13
+
+                             JOINT VENTURE AGREEMENT
+
+Collectible Concepts Group, Inc. ("CCGI") and Pivotal Self Service Tech, Inc. ("PVSS"), (the "Parties" or "Joint Venturers" if referred to collectively, or the "Party" or Joint Venturer" if referred to singularly), by this Agreement associate themselves as business associates, and not as partners, in the formation of a joint venture (the "Joint Venture"), for the purpose of engaging generally in the business provided for by terms and provisions of this Agreement.
+
+1.   Name of the Joint Venture. The name of the Joint Venture will be MightyCell      Batteries, and may sometimes be referred to as "MightyCell" or the "Joint      Venture" in this Agreement. The principal office and place of business      shall be located in 1600 Lower State Road, Doylestown, PA 18901.
+
+2.   Scope of the Joint Venture Business. The Joint Venture is formed for the      purpose of engaging generally in the business of marketing batteries and      related products, (the "Products") that include the display of licensed      logos, images, brand names and other labels that differentiate them from      the branding (the "PVSS Products") under which PVSS and/or its affiliates,      sell to retailers and distributors in the normal course of their business.      Without in any way limiting the generality of the foregoing, the business      of the Joint Venture shall include:
+
+          (a)  The purchase of Products for resale;           (b)  The acquisition of a license(s) permitting the use of selected                images in the Products;           (c)  The sale and distribution of the Products to retailers and                distributors; and,           (d)  The transaction of such other and further business as is                necessary, advisable, or incidental to the business of the Joint                Venture.           (e)  Develop a global marketing program for licensed Products
+
+     Exhibit A attached hereto, describes by way of example but not limitation      the responsibilities of the Joint Venturers
+
+3.   Capital Contributions. Except as agreed upon by mutual consent, the Joint      Venturers shall not be required to make any capital contribution to the      Joint Venture.
+
+4.   Offices of the Joint Venture. The principal place of business of the Joint      Venture shall be at 1600 Lower State Road, in the City of Doylestown, Bucks      County, Pennsylvania, but may maintain such other offices as the Joint      Venturers may deem advisable at any other place or places within or without      the Commonwealth of Pennsylvania.
+
+5.   Powers and Authority of the Joint Venturers. The Joint Venturers shall have      full and complete charge of all affairs of the Joint Venture. The Joint      Venturers recognize that both of the Joint Venturers are and will continue      to be engaged in the conduct of their respective businesses for their own      account. Neither Joint Venturer shall be entitled to compensation for      services rendered to the Joint Venture as such, but each Joint Venturer      shall be reimbursed for all direct expenses, including travel, office, and      all other out-of-pocket expenses incurred in the operation of the affairs      of the Joint Venture and the promotion of its businesses.
+
+     It is agreed that either Joint Venturer shall, except as provided for      below, have authority to execute instruments of any character relating to      the affairs of the Joint Venture; provided, that without the written      consent or approval of both of the Joint Venturers: (i) the Joint Venture      shall incur no liability of any sort, nor any indebtedness for borrowed      funds; (ii) no assets owned in the name of the Joint Venture be disposed      of; and (iii) no commitment to purchase any item for the Joint Venture      shall be made.
+
+                                       39
+
+6.   Division of Income and Losses. All income and credits, and all losses and      deductions shall be owned and shared among the Joint Venturers as follows:
+
+     50% to Collectible Concepts Group, Inc.
+
+     50% to Pivotal Self Service Tech, Inc.
+
+     Depreciation and all other charges and expenses, which are not expressly      apportioned by this Agreement, shall be apportioned in accordance with      generally accepted accounting principles, consistently applied.
+
+7.   Accounting Provisions. The Joint Venturers shall maintain adequate books      and records to be kept of all the Joint Venture activities and affairs      conducted pursuant to the terms of this Agreement. All direct costs and      expenses, which shall include any insurance costs in connection with the      distribution of the Products or operations of the Joint Venture, or if the      business of the Joint Venture requires additional office facilities than      those now presently maintained by each Joint Venturer, such item shall be
+
+
+
+
+
+     paid by the Joint Venture. The fiscal year of the Joint Venture shall be      the calendar year, and shall use the cash basis of accounting. If requested      by a Joint Venturer, the Joint Venture books and records shall be audited      as of the close of each year by an independent accountant acceptable to      both Joint Venturers. All books and records of every kind and character, of      the Joint Venture, and other information, shall be kept at the principal      office of the Joint Venture, or at such other place or places as may be      agreed upon by the Joint Venturers, and shall be fully available to each      Joint Venturer or his duly authorized representative, all at reasonable      times. The books of the Joint Venture shall represent the complete record      and report of business operations, including a balance sheet and income and      expense statements reflecting all receipts and disbursements of the Joint      Venture, and such reports shall be submitted to the Joint Venturers on a      regular basis.
+
+8.   Term of Joint Venture. The Joint Venture shall commence on the 1st of      March, 2003, and shall be effective until February 28, 2004 unless extended      by written agreement of the Joint Venturers not less than thirty (30) days      prior to scheduled termination.
+
+9.   Distributions. During the term of the Joint Venture, no interest shall be      allowed to any Joint Venturer upon the amount of his contribution. No Joint      Venturer shall withdraw, transfer or have paid to him in any manner any      part of his capital contribution or account, or any other funds or property      of the Joint Venture without the consent of both Joint Venturers; provided,      however, there may be distributed to the Joint Venturers, from time to      time, so much of the gross income of the Joint Venture as shall not be      needed to defray the necessary and expected costs and expenses of the Joint      Venture business. Distributions may only be made if after any distribution      is made, the Joint Venture assets are in excess of all liabilities of the      Joint Venture. Each distribution shall be made ratably to the Joint      Venturers according to their prorata interest in the Joint Venture as shown      in Section 6.
+
+10.  Internal Revenue Code Election. The Joint Venturers agree and declare that      this association for the carrying on of a joint venture business operation      does not, and is not intended to create a partnership, for either legal or      United States income tax purposes, each Party recognizing that the other is      willing and able to contribute capital, labor, and services for the      operation of a successful joint venture business. Further, each Party      elects under the authority of Section 761(a) of the Internal Revenue Code      of 1986 (the "Code"), as amended and all successor statutes, to be excluded      from the application of all of the provisions of Subchapter K of Chapter 1      of the Subtitle A of the Code, and the Parties agree that the election out      of Subchapter K of Chapter 1 of Subtitle A of the Code shall, if necessary,      be manifested by their execution and filing of all appropriate      documentation. The Parties also declare that they are not making any      agreement to undertake any business other than that set forth in this      Agreement; and nothing in this Agreement is to be construed as a limitation      of the powers or rights of either Party to carry on his separate business      for his sole benefit; provided, however, the Parties shall cooperate with      each other according to the terms and spirit of this Agreement in the      performance of their joint venture business operation.
+
+11.  Procedure on Termination and Liquidation. On any termination of the Joint      Venture, its debt shall be paid or provided for in a manner satisfactory to      the Joint Venturers. Then, any unexpended portion of Joint Venture funds      shall be distributed to the Joint Venturers in accordance with their      prorata ownership in the Joint Venture and all other assets of the Joint      Venture shall be distributed as undivided interests to the Joint Venturers      ratably according to their prorata interests in the Joint Venture as set      forth in Section 6. If any asset is not capable of being distributed on an      undivided basis, the Parties shall agree on a price for such asset and it      shall be distributed to one Party and a corresponding balance, in cash or      property, shall be made of the Joint Venture assets so that each Party      receives his proportionate share of all the Joint Venture assets.
+
+12.  Sale or Purchase of Interest of Joint Venturer Prohibited. No Joint      Venturer shall be authorized or empowered to mortgage, hypothecate, pledge,      sell, or transfer, an interest in the Joint Venture, nor confer on any      successor or assignee the right to become a Joint Venturer without the      consent of the other Joint Venturer.
+
+13.  Notice. Any notice which a Joint Venturer shall have occasion to give to      the other Joint Venturer shall be deemed sufficient notice for all purposes      as to its contents if given in writing, hand delivered, by fax, or prepaid      mail, to the address of such Joint Venturer as set out below his signature.
+
+14.  Construction. The Joint Venturers declare that in entering into this      Agreement, they have contracted with reference to the laws of the      Commonwealth of Pennsylvania, and the construction and interpretation of      the terms and provisions of this Agreement shall be interpreted and      construed under the laws of the Commonwealth of Pennsylvania, except in      such cases and to such extent as the laws of another jurisdiction shall      necessarily control.
+
+15.  Benefit. This Agreement shall be binding on the Joint Venturers and their      respective heirs, successors, executors, administrators, and assigns.
+
+16.  Counterparts. This Agreement may be signed in counterparts and shall be      deemed one original instrument.
+
+
+
+
+
+For Collectible Concepts Group, Inc.
+
+By: ____________________________________
+
+Its:  ____________________________________
+
+Date: ___________________________________
+
+For Pivotal Self Service Tech, Inc. By: ___________________________________
+
+Its: ____________________________________ Date: __________________________________
+
+EXHIBIT A
+
+                     GENERAL RESPONSIBILITIES OF THE PARTIES
+
+Collectible Concepts Group will:
+
+     1)   Obtain any licenses deemed by the Joint Venturers to add value in the           marketing of the Products      2)   Prepare any artwork necessary for the reproduction of licensed or           branded images for the purpose of manufacturing the Products and / or           packaging      3)   In concert with PVSS, appoint appropriate sales agents and / or           representatives and distributors to sell the Products into specific           retail channels      4)   Prepare marketing materials for sales agents', representatives' and           distributors' use in presentations to prospective clients      5)   Engage in any support activities required to promote and sell the           Products      6)   Provide fulfillment services through affiliates for final distribution           of the Products
+
+Pivotal Self Service Tech, Inc. will:
+
+     1)   Provide the Products in accordance with the specifications and           quantities and time frames designated by CCGI      2)   Provision any additional Products deemed by the Joint Venturers to be           salable through the channels established by CCGI      3)   Negotiate such favorable pricing and terms with the suppliers of the           Products so as to assure the viability of the Joint Venture offerings           and the continuity of Product availability to the customers of the           Joint Venture      4)   Provide alternate fulfillment and distribution services of the           Products as backup to those provided by CCGI
+
+                                       40

full_contract_txt/ACCURAYINC_09_01_2010-EX-10.31-DISTRIBUTOR AGREEMENT.txt

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+Exhibit 10.31    PURSUANT TO 17 C.F.R. § 240.24B-2, CONFIDENTIAL INFORMATION (INDICATED BY {*****}) HAS BEEN OMITTED FROM THIS  DOCUMENT AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A  CONFIDENTIAL TREATMENT APPLICATION FILED WITH THE COMMISSION     ACCURAY INCORPORATED  MULTIPLE LINAC AND MULTI-MODALITY   DISTRIBUTOR AGREEMENT     This Multiple LINAC and Multi-Modality Distributor Agreement ("Agreement") is entered into by and between ACCURAY  INCORPORATED, a Delaware corporation with its executive offices located at 1310 Chesapeake Terrace, Sunnyvale, California 94089, USA  ("Accuray"), and SIEMENS AKTIENGESELLSCHAFT, a corporation formed under the laws of the Federal Republic of Germany, with its registered  offices located at Berlin and Munich ("Siemens"), as of June 8, 2010 ("Effective Date").     RECITALS     Accuray manufactures and sells full-body radiosurgery systems using image-guided robotics, including the CyberKnife® Robotic  Radiosurgery System, which is FDA cleared in the United States to provide treatment planning and image-guided stereotactic radiosurgery and  precision radiotherapy for lesions, tumors and conditions anywhere in the body where radiation treatment is indicated.     In order to achieve its business objectives, Accuray relies on qualified distributors to market and distribute its products and services.     Accuray and Siemens have entered into that certain Strategic Alliance Agreement, dated as of the date hereof (the "Strategic Alliance  Agreement"), and such agreement provides that Accuray and Siemens shall enter into a distribution agreement for Multiple LINAC and Multi- Modality Purchases (as defined below).     Accuray wishes to appoint Distributor (as defined below) as a non-exclusive, worldwide distributor for the Products and Services to  Customer in connection with Multiple LINAC or Multi-Modality Purchases (as defined below), subject to the terms and conditions of this  Agreement, and Distributor wishes to accept such appointment.     NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants set forth below, the parties hereto hereby  agree as follows:     1. DEFINITIONS. Capitalized terms used, but not defined herein, shall have the meaning provided in the Strategic Alliance Agreement. The  following terms, as used herein, have the following meaning:     1.1. "Accuray Regions" means Accuray's sales regions (as of the Effective Date) of the Americas (North America and South America),  APAC (Asia Pacific, including Australia and other than India and Japan), EIMEA (Europe, India, Middle East, and Africa), and  Japan.     1.2. "Customer" means any person or business entity with whom Distributor enters into an agreement for Products or Services in  connection with a Multiple LINAC or Multi-Modality Purchase pursuant to this Agreement.     1.3. "Distributor" means Siemens, its Affiliates, or any Third Party which has been granted distribution rights whose scope includes the  Products and/or Services by Siemens.     1.4. "Multiple LINAC or Multi-Modality Purchase" means a Multiple LINAC Purchase or a Multi-Modality Purchase.
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+     1.5. "Multi-Modality Purchase" means the purchase, on a single purchase order, of at least one Distributor imaging product (e.g., CT, MR,  PET-CT) and at least one System.     1.6. "Multiple LINAC Purchase" means the purchase, on a single purchase order, of at least one Distributor linear accelerator product and  at least one System.     1.7. "Product(s)" means the System and/or related products manufactured by or for Accuray for use in the radiosurgery market, which  have been approved for sale in the Customer's geographic region.     1.8. "Quote" means a quote provided by Accuray to Distributor pursuant to Section 2.3 that will serve as the basis for the Product  configuration, Services, pricing and delivery schedule offered to a Customer by Distributor.     1.9. "Service(s)" means the performance of radiosurgery-related service(s) by Accuray or its distributors, which may include technical  support, training or installation of Products as specified in the Quote.     1.10. "Service Agreements" means the Accuray CyberKnife Service Agreement or such other service programs and agreements as may be  released or modified by Accuray from time to time.     1.11. "Spare Parts" means replacement or additional parts or Products used in connection with the System.     1.12. "Specification(s)" means the current written description of a Product or Service prepared by Accuray and provided to Distributor.     1.13. "System(s)" means the Accuray CyberKnife® Robotic Radiosurgery System or CyberKnife® VSI™ System, as applicable.     2. DISTRIBUTORSHIP     2.1. Appointment. Accuray hereby appoints Distributor as a non-exclusive, worldwide distributor of Products and Services to Customers  solely in connection with Multiple LINAC or Multi-Modality Purchases, not to the exclusion of Accuray itself or any of its other  current or future distributors and subject to the terms and conditions of this Agreement. By way of clarification, this Agreement  does not relate to any Cayman Product, including, without limitation, the distribution or sale thereof or any services related thereto.     2.2. Pricing.     2.2.1. Pricing of Products and Services shall be based upon Accuray's then current price lists for such Products and Services. The  current price list for Products and Services effective as of the Effective Date will be provided to Distributor  contemporaneously with the delivery of this fully executed Agreement to Distributor. Such price lists will be subject to  change from time to time in Accuray's sole discretion, and Accuray shall use commercially reasonable efforts to provide  Distributor with updated pricing on a regular basis, provided that pricing included in a Quote delivered by Accuray to  Distributor shall reflect Accuray's current up-to-date pricing unless otherwise agreed. Updated price lists shall not apply to  valid Quotes      2
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+     issued by Accuray and subject to acceptance by Distributor prior to the effective date of such updated price lists.     2.2.2. Notwithstanding the foregoing or anything to the contrary contained in this Agreement, Distributor may present for approval  to Accuray opportunities for sales of Products and Services at prices that differ from the prices set forth in the then current  price list. Accuray may, in its sole and absolute discretion, approve any such opportunity, and if approved in writing by  Accuray, Distributor shall otherwise be permitted to pursue such opportunity at such prices, which opportunity shall  otherwise be governed by and pursued pursuant to the terms of this Agreement.     2.3. Quote and Purchase Process. Distributor acknowledges and agrees that Accuray will determine the appropriate quote process to be  observed by the parties under this Agreement and may amend this process (other than the approval rights set forth in Section 2.3.2)  as notified to the Distributor reasonably in advance. In addition, Distributor acknowledges that each proposed sale of a Product or  Service under this Agreement is subject to the approval rights of Accuray set forth in Section 2.3.2. Accuray and Distributor will  comply with the following process for making sales of Products and Services in connection with Multiple LINAC or Multi-Modality  Purchases:     2.3.1. Opportunity. Once Distributor has identified a Customer opportunity in connection with a Multiple LINAC or Multi-Modality  Purchase, it shall request a Quote from Accuray based on the Product configuration and Services requested by the  Customer and the Accuray Region in which the Customer is located, and shall include such other information regarding the  Customer and the proposed opportunity as Accuray may reasonably request.     2.3.2. Quote. Following receipt of Distributor's Quote request, Accuray will determine whether to approve the issuance of a Quote  related to such request. Such determination shall be made in accordance with and subject to the conditions set forth in  Schedule 2.3.2 attached hereto. If Accuray approves the issuance of a Quote, Accuray shall issue a Quote to Distributor  based on the Product configuration and Services requested by the Customer, including pricing for such Products and  Services as provided in Section 2.2 above. The Quote issued by Accuray in relation to a Customer opportunity shall serve  as the basis of any offer made by Distributor to that Customer and shall remain valid for at least six months (unless earlier  declined by Distributor), and Distributor shall submit an amended Quote request to Accuray in the event adjustments to a  Quote are requested by the Customer. Any such amended Quote request from Distributor shall again be subject to the  Accuray approval process set forth in this Section 2.3.2.     3
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+     2.3.3. Purchase. To purchase Products or Services based on a Quote provided by Accuray, Distributor will issue a purchase order,  which shall include specific references to the quote number of such Quote (the "Purchase Order"). Accuray shall either  accept or reject such Purchase Order within two weeks after receipt thereof, with any failure to approve or disapprove of  such Purchase Order in such period constituting disapproval. Each purchase of Accuray Components and Interfaces shall  be accomplished and a Purchase Order may be accepted by the execution of the Purchase Order by an authorized  representative of Accuray. To the extent of any inconsistency between the Quote and the related Purchase Order, the  terms and conditions of such Quote shall govern and Distributor acknowledges and agrees that Accuray shall not be  bound by any terms, conditions or boilerplate language included in a Distributor purchase order submitted to Accuray.  The Purchase Order shall be delivered to Accuray via fax, electronic mail, or mail at the following address:     Accuray Incorporated  ATTN: Contracts Administration  1310 Chesapeake Terrace  Sunnyvale, CA 94089  Main: (408) 716-4600  Fax: (408) 789-4205  Email: [email protected]     2.3.4. Cancellation; Amendment; Conflict. Distributor may cancel the Purchase Order if Accuray has not executed such Purchase  Order within two weeks of receipt. Any amendment or addition to the Purchase Order shall only be effective if Distributor  and Accuray confirm such amendment or addition in writing. To the extent of any inconsistency between a Quote or a  Purchase Order and this Agreement, this Agreement shall prevail, unless such Quote or Purchase Order is signed by both  the CFO or General Counsel of Accuray and the CFO of Distributor, expressly refers to this Section 2.3.4, and states that  the Quote or Purchase Order is intended to supersede this Agreement.     2.4. Standard Lead Time. As of the Effective Time and to the best of Accuray's knowledge, Accuray's standard lead time for delivery of  Products is six months.     3. DUTIES OF DISTRIBUTOR     3.1. Independent Distributor. Distributor shall be and must at all times make it clear that it is an independent entity contracting with  Accuray, and is not the employee, representative or agent of Accuray. Distributor does not have the ability or authority to enter  into any legal agreements or obligations that would bind Accuray in any manner.     3.2. Market Knowledge, Promotion and Sales. Distributor will develop a thorough and complete understanding of the Products and  Services. Distributor will use its knowledge and understanding to identify and cultivate potential Customers. Distributor agrees to  use commercially reasonable efforts to introduce, promote the sale of, and obtain orders for the Products and Services in connection  with Multiple LINAC or Multi-Modality Purchases, including, without limitation, including the Products and Services in each of  Distributor's      4
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+     Oncology Care Systems price book and sales operation system, such that all of Distributor's sales representatives can access  quotations for Products and Services at least as easily as all other systems then available for purchase from Distributor. Moreover,  Distributor represents and warrants that, on the date hereof and during the Term of this Agreement and any extension thereof, it (i)  possesses the knowledge, experience, skills, and ability required to properly fulfill its obligations under this Agreement; and (ii) has  the required facilities, manpower, capacity, financial strength, and knowledge to market and distribute Accuray's Products and  Services in connection with Multiple LINAC or Multi-Modality Purchases.     3.3. Distributor Personnel. During the Term of this Agreement and any extension thereof, Distributor agrees to use commercially reasonable  efforts to employ qualified sales and technical personnel familiar with the Products and Services, including, without limitation, at  least one person in Distributor's Oncology Care Systems sales group with a primary responsibility for sales of Products, to perform  the marketing and sales requirements as set forth herein.     3.4. Distributor Personnel Sales Training. Distributor shall use commercially reasonable efforts to cause each of its Oncology Care Systems  sales personnel with any sales duties related to the Systems to attend any training provided by Accuray in such personnel's  Accuray Region pursuant to Section 4.12.     3.5. Offers. Distributor shall inform Accuray of all potential Customers for Multiple LINAC or Multi-Modality Purchases during the Term of  this Agreement or any extension thereof. Distributor shall offer such potential Customers only those Products or Services described  in then current price lists, and only in accordance with the applicable Customer Quote and this Agreement.     3.6. Purchase Schedule. For each sale completed by Distributor, the resulting contract for the sale of Products shall be between Distributor  and the Customer and the Service Agreement, if any, shall be between Accuray and the Customer or Accuray and the Distributor, as  determined pursuant to Section 4.8. For each such sale, Distributor must send a Purchase Order to Accuray at least six (6) months  prior to the expected shipment date.     3.7. Customer Complaints. Distributor shall report promptly and in writing to Accuray any complaints or expressions of dissatisfaction by  the Customers to Distributor relating to the Products or Services. Any such reports shall be provided to Accuray via electronic mail  to the following address: [email protected].     3.8. Warranty. Distributor will not make any warranties or representations in Accuray's name or on Accuray's behalf other than the  warranty provided by Accuray pursuant to Section 4.6 unless approved in advance in writing by Accuray.     3.9. Service Agreements. Distributor will make commercially reasonable efforts to sell a Service Agreement to each Customer. For the  avoidance of doubt, (i) the obligations of the parties with respect to the Service Agreement are as set forth in Sections 3.6 and 4.8  and (ii) the failure of Distributor to sell a Service Agreement to any Customer shall not be deemed to be a breach of this Agreement.     3.10. Upgrades. Any Product upgrades released by Accuray (other than Bug Fixes and Safety Updates, which are addressed in Section  4.6.3 and 4.6.4 respectively) can be purchased at the discretion of the Distributor pursuant to the procedures set forth in Section 2.3.  Such      5
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+     upgrades will be available at the prices listed in the then current price list as of the date of the Quote (unless prior written approval  by Accuray for application of an earlier price list is obtained) for the upgrade, less any applicable discounts as specified in Exhibit A  hereto.     3.11. Compliance with Laws.     3.11.1. Compliance Generally. Distributor has and will have during the Term of this Agreement and any extension thereof the ability  to distribute, market and sell the Products and Services in accordance with the terms of this Agreement, in full compliance  with all governmental, regulatory and other requirements under any applicable law. Furthermore, Distributor agrees to  comply with all applicable international, national, regional and local laws applicable to the performance of its duties  hereunder or to any transactions involving the Products or Services contemplated hereunder.     3.11.2. United States Laws. Distributor understands that, because it is distributing the Products and Services of Accuray, a  corporation subject to the laws of the United States of America, Distributor must, when carrying out its duties pursuant to  this Agreement, avoid violations of certain of such laws. These include, but are not necessarily limited to, the following:     3.11.2.1. Restrictive Trade Practices or Boycotts, U.S. Code of Federal Regulations Title 15, Chapter VII, Part 760.     3.11.2.2. Foreign Corrupt Practices Act, U.S. Code Title 15, § 78.     3.11.2.3. Export Controls, imposed by U.S. Executive Order or implementing regulations of the U.S. Departments of  Commerce, Defense or Treasury.     3.11.3. No Illegal Activity. Neither party (nor their sub-distributors, if any ("Sub-Distributors")) shall engage in any illegal activities.  A party will not be held responsible for any activities of the other party or the other party's Sub-Distributors that may be  considered to be illegal. For example, neither party supports the practice of bribes or under-the-table payments. Each party  will ensure a like clause is included in each agreement it has with its Sub-Distributors, and monitor activities of its Sub- Distributors closely. In the event a party deems that its good-will has been or may potentially be affected by any such  illegal activity of the other party or the other party's Sub-Distributors, then such party reserves the right to terminate this  Agreement or any portion thereof that relates to or is materially affected by such illegal activity with no further liability to  the other party or the other party's Sub-Distributors. Such party assumes no liability for such illegal activity and the other  party hereby indemnifies and holds such party, its officers and assigns, harmless from any loss, damage and liability  arising from or in connection with such illegal activity.     3.12. Sales Targets. Distributor shall not be subject to any minimum purchase requirements, but shall agree to the annual sales targets set  forth in Schedule 2.5(d)(i)(2) of the Strategic Alliance Agreement and to using its customary standard sales processes, including,  without limitation, the MTA process, with respect to sales of Systems.     6
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+     3.13. Affiliates; Distributors. Siemens shall cause any of its Affiliates or distributors purchasing Systems or Services pursuant to the terms  of this Agreement to agree to be bound by and comply with the terms and conditions of this Agreement and the provisions of the  Strategic Alliance Agreement related to or applicable to such purchase, unless such Affiliate or distributor is already party to a  distribution agreement for Products with Accuray.     4. DUTIES OF ACCURAY     4.1. Fulfillment and Shipment.     4.1.1. Fulfillment of Executed Purchase Orders. Accuray is responsible for ensuring that the Products supplied are of good quality as  further described below. Accuray will use commercially reasonable efforts to provide to Distributor or Customer, as  applicable, in a timely manner those Products and Services required to fill confirmed Purchase Orders received from  Distributor in accordance with the terms of this Agreement.     4.1.2. Shipment. All shipments shall be made F.C.A. Port of Oakland, California, USA. Transfer of risk from Accuray to Distributor  shall occur at such F.C.A. location as provided in F.C.A. terms and transfer of title shall occur at the same time. Distributor  may request Accuray to use a particular freight carrier, and Accuray agrees to do so, if feasible. If not feasible in Accuray's  reasonable judgment, then Accuray shall promptly advise Distributor of the reasons. If no such request is made, Accuray  shall ship in accordance with any instructions contained in the Purchase Order or via FedEx ground, with no extra  insurance. Accuray shall bill any actual freight costs to Distributor. Any supplementary shipping costs arising from the  need to meet the delivery deadline set forth in the Purchase Order by way of expedited delivery shall be borne by Accuray,  if such delivery deadline was at least six months after the submission of such Purchase Order by Distributor. For example, if  a Purchase Order was submitted on June 1, with a requested delivery date of December 1, any expedited delivery expenses  required in order to ensure delivery by December 1 shall be borne by Accuray, while if the requested delivery date was  October 1, any expedited delivery expenses required in order to ensure delivery by October 1 shall be borne by Distributor.     4.2. Product and Service Pricing. Accuray will provide its then current U.S. list pricing for its Products and Services to Siemens once per  year during the Term of this Agreement and any extension thereof, or upon request from Siemens. All prices will be stated in US  Dollars, unless another currency is agreed upon in writing by Accuray.     4.3. Product Specifications and Promotional Literature. Accuray will provide product specifications and promotional literature to Distributor  from time to time during the Term of this Agreement and any extension thereof. Distributor may use product specifications and  promotional literature in Distributor's dealings with Customers. Accuray may introduce changes and upgrades to the Products.  Accuray will use commercially reasonable efforts to give Distributor as much advance notice of upgrades as is feasible.     4.4. Regulatory Clearance. Accuray will be responsible for and will bear all expenses related to obtaining and maintaining any approvals,  permits and licenses required under any applicable law in order to sell, market and distribute the Products and Services to a  Customer in      7
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+     connection with Multiple LINAC or Multi-Modality Purchases, including any upgrades to or expanded usage of the Products;  provided, however, that if Accuray does not have a direct presence in or Accuray does not have a distributor for the sales of  Systems specifically for the country in which the Customer requests delivery, as a condition to any sale of Products or Services to  such Customer, Accuray may require Distributor (solely with the consent of Distributor) to enter into a distribution agreement with  Accuray pursuant to Section 3.2 of the Strategic Alliance Agreement providing, among other things, that Distributor will be  responsible for obtaining all such approvals, permits, and licenses for sales to such Customer. Distributor will provide any  assistance or documentation reasonably requested by Accuray and at Accuray's expenses to assist Accuray with its obligations  under this Section 4.4. Accuray will be registered as the sole owner of any rights, title and interest to any of the Products or Spare  Parts, as the case may be; provided, however, that should any applicable law or regulation require that Distributor alone be entitled  to such ownership rights, Distributor shall hold this approval as trustee for Accuray and hereby consents to transfer or sublicense  such approval to Accuray free of charge or to support Accuray in its efforts to re-obtain the approval for the benefit of Accuray or a  third party named by Accuray upon expiration or termination of this Agreement. Lists indicating, as of the Effective Date, (i) the  countries in which Accuray has obtained regulatory approvals for the Products and Services and (ii) the countries in which Accuray  has a direct presence or has a distributor for the sales of Systems specifically for such country are being delivered to Siemens  concurrently with the execution of this Agreement. Accuray shall provide to Siemens updates of such lists on a quarterly basis.     4.5. Import License. Accuray or its distributor will obtain and maintain all required import licenses, and shall serve as importer of record for  all Products and Services delivered in or into any country or region, other than the United States, pursuant to this Agreement;  provided, however, that if Accuray does not have a direct presence in or Accuray does not have a distributor specifically for the  sales of Systems in the country in which the Customer requests delivery, as a condition to any sale of Products or Services to such  Customer, Accuray may require Distributor (solely with the consent of Distributor) to enter into a distribution agreement with  Accuray pursuant to Section 3.2 of the Strategic Alliance Agreement providing, among other things, that Distributor will obtain and  maintain all required import licenses and will act as the importer of record for the Products and Services ordered by such Customer.     4.6. Warranty.     4.6.1. Scope of Warranty. Accuray will provide a warranty to each Customer that the Products will be free from material defects and  perform substantially in accordance with the written Specifications provided by Accuray as reflected in the regulatory  clearance at the time of sale for a period of one (1) year following Installation of the Products at Customer's facility, but not  to exceed eighteen (18) months following shipment of such Products to Distributor ("Warranty Period"). "Installation" of  the System shall occur upon completion by Accuray or the entity installing the System, as applicable, of Accuray's  acceptance test procedure demonstrating that the System substantially conforms to the written Specifications. If Accuray  does not perform the Installation, Distributor will notify Accuray in writing within ten (10) days following Installation  (including any testing procedures undertaken by Customer or its installation service provider). In no event shall  Distributor, Customer or their respective agents use the System (or any portion thereof) for any purpose before Installation  thereof without the express written approval of Accuray. Distributor      8
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+     shall indemnify and hold Accuray harmless from any such use. Accuray makes no warranty that the operation of any  software will be uninterrupted or error-free. Except as set forth in the preceding sentences, Accuray makes no warranties or  representations to Customers or to any other party regarding any Products or Services provided by Accuray. TO THE  FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ACCURAY DISCLAIMS ALL OTHER WARRANTIES AND  REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED  WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES  ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.     4.6.2. Hardware and Software. If a Customer notifies Accuray in writing during the Warranty Period of a defect in a Product that  causes the Product to fail to conform to the foregoing warranty, Accuray shall at its option either repair or replace the non- conforming Product or, if in Accuray's opinion such repair or replacement is not commercially reasonable, Accuray shall  refund a pro-rated portion of the price paid by the Customer for such Product calculated based on a straight-line  depreciation over a 5-year period beginning on the date of delivery. This will be Accuray's sole and exclusive obligation  and such Customer's sole and exclusive remedy in relation to defective Products and parts.     4.6.3. Software and Bug Fixes. Notwithstanding Section 4.6.2, for a period of 10 years following Installation of a System, Accuray will  provide to Customer, without charge, Bug Fixes with respect to any software included in the System. This is Accuray's  sole and exclusive obligation and Customer's and Distributor's sole and exclusive remedy in relation to defective software.  By way of clarification, Accuray's sole obligation shall be to make such Bug Fixes available to Customer, and Accuray  shall have no obligation (unless otherwise agreed by the Customer and Accuray) for installation or implementation of such  Bug Fixes at the Customer's site. "Bug Fix" means an error correction or minor change in the existing software and/or  hardware configuration that is required in order to enable the existing software and/or hardware configuration to perform to  the existing functional specification(s).     4.6.4. Safety Updates. Notwithstanding Section 4.6.2 and any obligations according to law, for a period of 10 years following  Installation of a System, Accuray will provide to Customer, without charge, Safety Updates with respect to any hardware or  software included in the System. This is Accuray's sole and exclusive obligation and Customer's and Distributor's sole  and exclusive remedy in relation to any Safety Update required to be provided by applicable law in the Customer's  jurisdiction. By way of clarification, Accuray's sole obligation shall be to make such Safety Update available to Customer,  and Accuray shall have no obligation (unless otherwise agreed by the Customer and Accuray) for installation or  implementation of such Safety Update at the Customer's site. "Safety Update" means an error correction or change in the  existing software and/or hardware configuration that is required for safety in order to enable the existing software and/or  hardware configuration to perform to the existing functional specification(s) in accordance with applicable law in the  Customer's jurisdiction.     4.6.5. Warranty Exclusions. All warranty replacement of Products and parts shall be limited to malfunctions which are due and  traceable to defects in original material or workmanship of Products. The warranties set forth in this Section 4.6 shall be  void      9
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+     and of no further effect in the event of abuse, accident, alteration, misuse or neglect of Products, including but not limited  to user modification of the operating environment specified by Accuray and user modification of any software.     4.6.6. Warranty Basis. Any limitation of liability under any warranty contained herein shall be an integral part of such warranty,  which limits its scope (Section 444, second alternative German Civil Code shall not apply). Any limitation of liability for any  defects contained herein shall be void insofar as Accuray has intentionally failed to disclose such defect.     4.7. Installation. Unless otherwise agreed by Accuray and Distributor (including, without limitation, pursuant to the terms of any  distribution agreement entered into pursuant to Section 3.2 of the Strategic Alliance Agreement), Accuray shall be responsible for  installation of Accuray Products at Customer sites.     4.8. Service Agreements. Accuray will provide its then current Service Agreements to Distributor from time to time during the Term of this  Agreement and any extension thereof, or upon request from Distributor. All prices will be stated in US Dollars, unless another  currency is agreed upon in writing by Accuray. Such Service Agreements are to be offered to the Customer on the terms as set forth  in those agreements, unless otherwise agreed to in writing by an authorized representative of Accuray. Accuray shall execute a  Service Agreement with the Customer upon receipt of (i) a copy of such Service Agreement executed by the Customer, and (ii) any  payments then due under such Service Agreement; provided, however, that Accuray shall have no obligation to enter into such  Service Agreement if it materially deviates from the form Service Agreement provided to Distributor; provided, further, that if  Accuray does not have a direct presence in or Accuray does not have a distributor for the sales of Systems specifically for the  country in which the Customer requests Services, as a condition to any sale of Services to such Customer, Accuray may require  Distributor (solely with the consent of Distributor) to enter into a distribution agreement with Accuray pursuant to Section 3.2 of the  Strategic Alliance Agreement providing, among other things, that Distributor may (at its sole discretion) enter into such Service  Agreement with such Customer and will provide directly to such Customer the Services required to be performed under such Service  Agreement. If Accuray enters into such Service Agreement with such Customer, Accuray will be responsible for and will provide to  such Customer (either directly or through one or more of its distributors) the services required to be performed under such Service  Agreement.     4.9. Customer Training. If training of Customer's personnel is included in a Purchase Order confirmed by Accuray, Accuray will provide  such training in accordance with Accuray's then current training offerings and will coordinate with the Customer in order to provide  such training at Accuray's facility in Sunnyvale, California (or such other facility as may be agreed upon by Customer and  Accuray). For the purposes of such training, Accuray will be responsible for the travel and accommodation expenses of its  personnel, while Customer shall be responsible for the travel and accommodation expenses of its personnel. All Customer training  provided by Accuray will be conducted in English and, to the extent a Customer or its personnel do not have adequate English  language reading and comprehension skills, Accuray will provide an interpreter and translation services sufficient to enable the  Customer and its personnel to meaningfully and effectively participate in Accuray training courses.     10
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+      4.10. Customer Support. Unless otherwise agreed by Accuray and Distributor (including, without limitation, pursuant to the terms of any  distributorship agreement entered into pursuant to Section 3.2 of the Strategic Alliance Agreement), Accuray will provide guidance  to billing and reimbursement personnel of each Customer regarding regulatory and billing requirements and reimbursement for  treatment provided with Products under radiosurgery reimbursement codes. Accuray will coordinate and assist the Customer with  room evaluation, architecture support and quality assurance issues in relation to Customer installation sites.     4.11. Additional Support and Training. Accuray will provide additional service, support, or training in relation to Products or Services at  Customer's request, to be ordered separately and directly from Accuray, and priced on a time and materials basis according to  Accuray's then current price lists.     4.12. Distributor Personnel Sales Training. Accuray shall provide training of Distributor's sales personnel responsible for sales of Products  and Services to Distributor free of charge. Such training shall be at the times, in such locations, and in the scope agreed upon by  Distributor and Accuray in good faith; provided, however, that such training shall be provided to such Distributor personnel in  each Accuray Region at least once per year. Each party shall be responsible for all costs and expenses, including travel and lodging,  incurred by it or its personnel to attend or provide such training. Accuray will provide additional training to Distributor's personnel  as may be reasonably requested by Distributor on a time and materials basis according to Accuray's then current price lists.     4.13. Support of Distributor's Efforts. Accuray shall, at its own expense:     4.13.1. assign a dedicated marketing point of contact for Distributor's marketing and sales personnel, which employee may be based  at any of Distributor's facilities as requested by the Steering Committee; and     4.13.2. provide global sales and marketing support, including support for individual sales opportunities, to Distributor; provided,  however, that the scope, duration, location, availability, and timing of such support shall be subject to commercially  reasonable limits and shall be determined pursuant to Section 3.3(a)(iii) of the Strategic Alliance Agreement.     4.14. Compliance with Laws. Accuray will be responsible for complying with (i) applicable U.S. laws, (ii) where Products are being shipped  to Distributor and unless otherwise agreed by Accuray and Distributor, applicable laws, codes, registrations, regulations, and  ordinances related to the export of the Products to Distributor, and (iii) any other applicable laws as they pertain to the Products, the  regulatory clearance, and safety in accordance with Accuray's written Specifications for the intended use. In addition, Accuray  shall be responsible for compliance with any applicable law, code, registration, regulation, and ordinance related to the export of the  Products or Services to Customer and/or Distributor, if any (the "Export Regulations"), and Accuray shall be liable for any expenses  and/or damages incurred by Distributor due to any non-compliance with such Export Regulations by Accuray (unless Accuray is  not responsible for such non-compliance). Accuray shall advise Distributor in writing within two weeks of the confirmation of the  Purchase Order of any information or data required by Accuray to comply with an Export Regulation, including without limitation:
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+(a) All applicable export list numbers, including the Export Control      11
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+     Classification Number according to the U.S. Commerce Control List (ECCN);     (b) The statistical commodity code according to the current commodity classification for foreign trade statistics and the  HS (Harmonized System) coding;     (c) The country of origin (non-preferential origin); and     (d) Accuray's declaration of preferential origin (in case of European suppliers) or preferential certificates (in case of  non-European suppliers).     4.15. Spare Parts. Upon a termination of this Agreement, Accuray shall continue to make available to Customers support services on  commercially reasonable terms, including, without limitation, spare parts for the Systems for a minimum period of 10 years after the  last shipment of a System pursuant to this Agreement.     5. COMPENSATION AND PAYMENT     5.1. Orders. Distributor shall make an offer to a Customer based on the Quote provided by Accuray pursuant to the process set forth in  Section 2.3. Submission and acceptance of an order shall be completed pursuant to Section 2.3.3.     5.2. Purchase Price.     5.2.1. Distributor shall pay the prices listed in the applicable Purchase Order (unless prior written approval by Accuray for  application of an earlier price list is obtained) for the Products, including any Spare Parts, less any applicable discounts as  specified in Exhibit A hereto. Distributor shall receive a commission in the amount specified in Exhibit A hereto for any  Service Agreement entered into by Accuray with Customer pursuant to Section 4.8.     5.2.2. All costs of delivering the Products to the Distributor or Customer (including, but not limited to, costs for land, air and/or  ocean freight, insurance, port, customs and forwarding fees, if any), as well as any rigging and unloading of the Products,  shall be paid as provided in the F.C.A. terms. Unless advised otherwise, all prices quoted by Accuray include the cost of  packing and crating for delivery.     5.2.3. Taxes. By way of clarification, all Accuray prices referenced in this Agreement, and all other amounts payable by Distributor to Accuray pursuant to this Agreement are net of any value added tax or federal, state, county or municipal sales or use tax,  excise or similar charge, withholding tax, or other tax assessment (except for any taxes that are assessed against income)  (collectively, the "Taxes"). The parties agree that it is their intention that Accuray will not bear any economic burden  relating to the Taxes. Subject to the foregoing and to compliance with applicable laws, Accuray and Distributor agree to  cooperate with each other as reasonably requested to establish the responsibilities of the parties relating to the payment  and withholding of Taxes, filing of documents, and other matters in order to achieve an efficient tax result.     5.3. Compensation. Except as otherwise provided herein, Distributor's only compensation for its efforts on Accuray's behalf shall be the  margins it earns on the resale of Products and      12
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+     commissions on sales of Services, and Distributor shall bear all of the expenses which it incurs in making those efforts.  Notwithstanding the foregoing, in the event that Accuray does not approve the issuance of a Quote to a potential Customer and  later contracts directly (or through one of its distributors) with such potential Customer, of which Accuray shall inform Distributor  without undue delay, Distributor shall receive credit for any sales of Systems to such potential Customer pursuant to and subject to  the fulfillment of the conditions set forth in Section 3.4 of the Strategic Alliance Agreement.     5.4. Payment.     5.4.1. System Purchase Payments. Payment for the purchase of a System shall be made by Distributor to Accuray in US Dollars in  the form of either (1) an irrevocable trade finance letter of credit or (2) wire transfer as further described in Sections 5.4.1.1  (Letter of Credit) and 5.4.1.2 (Wire Transfer), respectively below. Accuray shall bear the cost of any bank charges assessed  by its bank for a letter of credit and any commission charge for a wire transfer. Past due balances on any reasonably  undisputed amount shall bear interest at the rate of 0.5% per month or, if lower, the maximum amount permitted by  applicable law. If Distributor is a "business person" (as defined in § 14 of the German Civil Code, "BGB"), the payment shall  be deemed past due only if Distributor fails to pay in response to a payment demand note received after payment becomes  due.     5.4.1.1. Letter of Credit. An irrevocable trade finance letter of credit issued by Distributor's bank, confirmed by a bank  designated by Accuray in all respects and delivered to Accuray upon the acceptance of the Purchase Order  by Accuray. The letter of credit will provide that Accuray can draw against the letter of credit according to the  following schedule:     5.4.1.1.1. US $100,000 (non-refundable but, in case of cancellation of the Purchase Order, automatically applied  to Distributor's next purchase of a System) upon Accuray's acceptance of the Purchase  Order, which must be at least four (4) months prior to the Distributor's proposed shipment  date; and     5.4.1.1.2. Balance upon presentation of documents by Accuray evidencing shipment of the Products to  Distributor or Customer as designated in the Purchase Order.     5.4.1.2. Wire Transfer. A wire transfer made in advance of the date payment is due, made in U.S. dollars, to a bank selected  by Accuray, according to the following schedule:     5.4.1.2.1. US $100,000 (non-refundable but, in case of cancellation of the Purchase Order, automatically applied  to Distributor's next purchase of a System) upon Accuray's acceptance of the Purchase  Order, which must be at least four (4) months prior to the Distributor's proposed shipment  date; and     13
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+     5.4.1.2.2. The remaining balance is due net 30 days after delivery by Accuray at the specified F.C.A. location  pursuant to Section 4.1.2 and receipt by Distributor of a reasonably undisputed invoice.     5.4.1.3. Tax Exempt Status. In the event that Customer claims tax exempt status in the country where the Accuray System is  to be installed, Customer must provide Accuray with sufficient evidence of such tax exempt status prior to  delivery of the Accuray System.     5.4.2. Products, Spare Parts and Upgrade Payments. Full payment of the purchase price for Products (other than Systems), Spare  Parts and upgrades shall be made by Distributor to Accuray in US Dollars by wire transfer to a bank selected by Accuray  and is due net 30 days after delivery by Accuray at the specified F.C.A. location pursuant to Section 4.1.2 and receipt by  Distributor of a reasonably undisputed invoice. Accuray shall bear the cost of any commission charge for a wire transfer.     5.4.3. Payments by Customers Direct to Accuray. If agreed to in writing by Accuray, Customers may make payments directly to  Accuray using the payment methods and schedules set forth in Sections 5.4.1.1 (Letter of Credit), 5.4.1.2 (Wire Transfer)  and 5.4.2 (Products, Spare Parts and Upgrade Payments) above. Should Customers make such payments to Accuray and  such payment include the Distributor's margin, then Accuray will pay such margin to Distributor once payment is received  from the Customer and cleared by Accuray's designated bank.     5.5. Collections. Notwithstanding Section 5.4.3 above, Distributor shall be solely responsible for determining the creditworthiness of and  collecting payment from its Customers. The risk of non-collection from the Customer will be borne entirely by Distributor, which  shall be responsible for making timely payment to Accuray for Products whether or not Distributor is successful in collecting from  its Customer. In the event that full payment is not received by Accuray, Accuray shall not be liable to Distributor for any margin or  commission unless and until it has received payment of amounts sufficient to cover the costs incurred by Accuray to provide the  applicable Products to Distributor and the applicable Services to Customer ("Accuray Cost"). Distributor acknowledges and agrees  that it shall not be entitled to receive payment of any margin or commission until Accuray has received payment of the Accuray  Cost amount in relation to the applicable Products and Services.     6. TERM AND TERMINATION     6.1. Term. Unless otherwise agreed in writing by Accuray and Distributor and subject to the termination rights contained in this Agreement,  this Agreement shall begin on the Effective Date and shall continue until the termination of the Strategic Alliance Agreement;  provided, however, that if a Termination Election relating to this Agreement is made pursuant to Section 10.3 of the Strategic  Alliance Agreement prior to such termination, this Agreement shall terminate 36 months after such Termination Election (the  "Term").     6.2. Termination.     6.2.1. Breach. If either party commits a material breach of a material provision of this Agreement, if such breach was not excused as a  force majeure pursuant to Section 12.12, and if the breaching party has not cured such breach to the other party's      14
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+     reasonable satisfaction within 30 days after written notice from the other party specifying the nature of such breach, then  the other party shall have the right to terminate this Agreement upon delivery of written notice to the breaching Party.     6.2.2. Bankruptcy. A party may terminate this Agreement effective upon delivery of written notice to the other party if: (i) any  assignment for the benefit of the other party's creditors is made, (ii) the other party voluntarily files a petition in  bankruptcy or similar proceeding, (iii) the other party has such a petition in bankruptcy or similar proceeding involuntarily  filed against it, (iv) the other party is placed in an insolvency proceeding, (v) if an order is entered appointing a receiver or  trustee of the other party, or (vi) a levy or attachment is made against a substantial portion of the other party's assets, and,  with respect to any event set forth in clauses (iii) through (vi) above, such position, placement, order, levy or attachment is  not dismissed or removed within 30 days from the date of such event.     6.3. Effect of Termination. Upon expiration of the Term (or other termination of this Agreement):     6.3.1. Transition of Activities. Accuray and Distributor agree to negotiate in good faith an orderly transition of Distributor's  distribution responsibilities and activities to Accuray or a third party designated by Accuray and Distributor agrees to  assist in the transition.     6.3.2. Pending Obligations. Each party must continue to fulfill any obligations, including but not limited to pending Quotes, accrued  before the effective date of such termination.     6.3.3. Return of Materials. Distributor shall transfer to Accuray upon Accuray's request: any regulatory clearances, licenses or  permits obtained for conduct of the business pursuant to this Agreement; any Confidential Information; and other items as  negotiated in good faith between the parties. Furthermore, each of the parties agree to cooperate fully with the other for  any reasonable transition assistance required in the case of termination or expiration of this Agreement.     6.4. No Termination Compensation. Distributor waives any rights it may have to receive any compensation or indemnity upon termination  or expiration of this Agreement, other than as expressly provided in this Agreement. Distributor acknowledges that it has no  expectation and has received no assurances that any investment by Distributor in the promotion of the Products will be recovered  or recouped or that Distributor will obtain any anticipated amount of profits by virtue of this Agreement.     6.5. Accruals. No termination or expiration of this Agreement will terminate any obligation of payment which has accrued prior to the  effective date of such termination or expiration.     7. DISPUTE RESOLUTION. Any contractual issues or disputes arising out of or related to this Agreement shall be resolved pursuant to the  procedures set forth in Section 11.3 of the Strategic Alliance Agreement.     8. CONFIDENTIALITY. Accuray and Distributor agree that all Confidential Information furnished to a party or its Affiliates, employees,  consultants, and advisors in connection with this Agreement will      15
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+     be subject to and the parties' rights and obligations with respect to such Confidential Information shall be governed by the Confidentiality  Agreement.     9. INTELLECTUAL PROPERTY RIGHTS.     9.1. Notice of Infringement. Distributor undertakes to inform Accuray without undue delay if it first becomes aware of any possible  infringement by third parties of Accuray's proprietary rights, including, without limitation, a duplication of the Products or any other  patent, trademark or copyright or other infringement of Accuray's intellectual property rights in connection with the Products, and  to cooperate with Accuray at Accuray's sole expense regarding any legal action in relation to such infringement, which in  Accuray's judgment, is necessary or desirable.     9.2. Third Party Claims. If Distributor promptly notifies Accuray of a claim it has received or of which it becomes aware that the Products or  any part thereof purchased by Distributor hereunder infringes a third party's proprietary rights, then Accuray agrees, at its  discretion, either to (i) defend the claim at its expense, with the cooperation of Distributor, provided, that Accuray shall reimburse  Distributor for any reasonable costs or expenses actually incurred by Distributor in connection with providing such cooperation, or  (ii) make changes in the Product or part thereof so that they are at least functionally equivalent and non-infringing or replace the  Products with alternatives that are at least functionally equivalent to avoid the claim, or (iii) purchase the right to use such  proprietary right or (iv) refund to the purchaser the net book value of the Product less a reasonable deduction for use, wear and tear,  and depreciation upon Accuray taking possession of such Product. Notwithstanding Section 10.1, the foregoing states the entire  liability of Accuray with respect to infringement of patents or other proprietary rights by the Products or part thereof, or by their  operation. To remove all doubt, Accuray has no obligation regarding any claim based on any of the following: (a) modification of  the Products by any person other than Accuray; (b) combination, operation or use of the Products with other products, parts,  components, materials or accessories not provided by Accuray; or (c) infringement by a product not manufactured by Accuray.     9.3. Intellectual Property Ownership and License. Accuray and its licensors retain all intellectual property rights in the Products. Accuray  hereby grants Distributor or Customer a nonexclusive, non-transferable, royalty-free right to use the software provided in  connection with the Products only in machine readable form and only in combination with the Products with which such software is  provided. No such software shall be copied or decompiled in whole or in part by Distributor or Customer, and Distributor or  Customer shall not disclose or provide any such software, or any portion thereof, to any third party. Accuray hereby grants to  Customers of Products a non-exclusive, non-transferable and royalty-free license under any Patents owned by Accuray or the  licensing of which is controlled by Accuray that, but for this license, would be infringed by the use of such Products in accordance  with the applicable Specification. All rights in intellectual property not expressly granted hereunder are reserved by the owner of  such intellectual property.     9.4. Product Labeling. Products shall be labeled and identified at point of manufacture. Accuray shall be responsible for compliance with all  applicable local laws and regulations relating to labeling. Such labeling and identification shall be only as acceptable to Accuray and  may be altered or added to by Distributor only as previously agreed upon in writing by Accuray. The failure of Distributor to  comply with these provisions shall be considered a material default under the terms of this Agreement.     16
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+     9.5. Trademarks. Distributor acknowledges the validity and proprietary value of Accuray's trademarks including, but not limited to,  "CyberKnife." Accuray shall retain sole ownership of all goodwill associated with the Products, as represented and symbolized by  the associated trademarks, and Distributor shall not register any of Accuray's trademarks in its name. Distributor undertakes to  display Accuray's trademarks solely in connection with identifying Accuray in the sale and marketing of Products hereunder.  Distributor shall not remove copyright notices or any trademarks from the Products. Distributor shall not be entitled to use said  trademarks in conjunction with Distributor's own trademarks or for any other purpose, except in the manner authorized by Accuray,  which authorization will not be unreasonably withheld and in compliance with distribution standards and specifications established  by Accuray. If Accuray determines in its sole discretion that Distributor is not meeting such standards and specifications,  Distributor shall immediately, at Accuray's instructions, take all steps necessary to ensure that such standards and specifications  are met or cease all further use and display of the trademarks. In the event of expiration or termination of this Agreement, Distributor  shall immediately discontinue all use of Accuray's trademarks except for the sale of Distributor's inventory of Products.     10. INDEMNITIES.     10.1. Accuray Indemnity. Accuray will defend or settle any action brought against Distributor and shall indemnify and hold Distributor  harmless from any liability, damages and expenses (including court costs and reasonable attorneys' fees) to the extent that it is  based upon a third-party claim that a Product, as provided by Accuray to Distributor under this Agreement, infringes any patent  issued in the United States, Germany, or in the country in which the Customer requested delivery of the Product or any copyright or  misappropriates any trade secret, and will pay any costs and damages made in settlement or awarded against Distributor in final  decision resulting from any such claim, provided that Distributor: (i) gives Accuray prompt notice of any such claim; (ii) gives  Accuray sole control of the defense and any related settlement of any such claim; and (iii) gives Accuray, at Accuray's expense, all  reasonable information, assistance and authority in connection with the foregoing. Accuray will not be bound by any settlement or  compromise that Distributor enters into without Accuray's express prior written consent.     10.2. Products Liability Indemnity. Accuray will defend or settle any action brought against Distributor and shall indemnify and hold  Distributor harmless from any liability, damages and expenses (including court costs and reasonable attorneys' fees) to the extent  that it is based upon a third-party claim that a Product, as provided by Accuray to Distributor under this Agreement is unsafe when  used according to Accuray's written Specifications for its intended use, and will pay any costs and damages made in settlement or  awarded against Distributor in final decision resulting from any such claim, provided that Distributor: (i) gives Accuray prompt  notice of any such claim; (ii) gives Accuray sole control of the defense and any related settlement of any such claim; and (iii) gives  Accuray, at Accuray's expense, all reasonable information, assistance and authority in connection with the foregoing. Accuray will  not be bound by any settlement or compromise that Distributor enters into without Accuray's express prior written consent.     10.3. Injunctions. If Distributor's rights to use and distribute a Product under the terms of this Agreement are, or in Accuray's opinion are  likely to be, enjoined due to the type of claim specified in Section 10.1 (Accuray Indemnity), then Accuray may, at its sole option  and expense: (i) procure for Distributor the right to continue to use and distribute such Product under the terms of this Agreement;  (ii) replace or modify such Product so that it is non-     17
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+     infringing; or (iii) if options (i) and (ii) above cannot be accomplished despite Accuray's reasonable efforts, then Accuray or  Distributor may terminate this Agreement with respect to such Product and Accuray shall credit to Distributor a pro-rated portion of  the amount paid for such Product based on a straight-line depreciation calculated over a 5-year period beginning on the date of  delivery of the Product, provided that all units of such Product are returned to Accuray in an undamaged condition.     10.4. Indemnity Exclusions. Notwithstanding the foregoing, Accuray will have no obligation under Sections 10.1 (Accuray Indemnity) or  10.2 (Products Liability Indemnity) for any third-party claim to the extent that such claim results from: (i) use of any Products not in  accordance with Accuray's written Specifications; (ii) use or combination of the Products with other items, such as other equipment,  processes, programming applications or materials not furnished by Accuray; (iii) compliance by Accuray with Distributor's or  Customers' designs, specifications or instructions; (iv) modifications to a Product not made by or at the express written direction of  Accuray; (v) Distributor's failure to use updated or modified Products provided by Accuray, provided that such updated or  modified Products would have avoided the basis for such claim; or (vi) Distributor's use or distribution of a Product other than in  accordance with this Agreement. The foregoing clauses (i) to (vi) are referred to collectively as "Indemnity Exclusions".     10.5. Limitation. WITHOUT AFFECTING STRICT PRODUCT LIABILITY UNDER MANDATORY APPLICABLE LAW, THE FOREGOING  PROVISIONS OF THIS SECTION SET FORTH ACCURAY'S SOLE AND EXCLUSIVE LIABILITY AND DISTRIBUTOR'S SOLE  AND EXCLUSIVE REMEDY FOR ANY CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY  RIGHTS OR PROPRIETARY RIGHTS OF ANY KIND.     10.6. Distributor Indemnity. Distributor will defend or settle, indemnify and hold Accuray harmless from any liability, damages and expenses  (including court costs and reasonable attorneys' fees) to the extent based upon a third-party claim based on or otherwise  attributable to: (i) Distributor's acts or omissions not in accordance with this Agreement or (ii) any misrepresentations made by  Distributor with respect to Accuray or the Products or Services.     11. LIABILITY.     11.1. Liability for Death or Injury. The liability of any party with respect to death or injury to any person is subject to and governed by the  provisions of applicable law.     11.2. Limitation on Liability. WITHOUT AFFECTING STRICT PRODUCT LIABILITY UNDER MANDATORY APPLICABLE LAW,  SECTION 10, OR THE RESPECTIVE OBLIGATIONS OF THE PARTIES UNDER THE CONFIDENTIAILITY AGREEMENT AND  EXCEPT FOR BREACHES ASSOCIATED WITH THE UNAUTHORIZED USE OF INTELLECTUAL PROPERTY, IN NO EVENT  SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR  TORT DAMAGES, INCLUDING WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, LOSS OF DATA,  LOSS OF PROFITS OR LOSS OF BUSINESS ARISING OUT OF OR IN CONNECTION WITH THE MATTERS CONTEMPLATED  BY THIS AGREEMENT, WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.     18
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+     11.3. Liability Cap. Without affecting Section 10 or the respective obligations of the parties under the Confidentiality Agreement and except  for any liability (i) relating to any breach associated with the unauthorized use of Intellectual Property, (ii) arising from the  intentional breach or willful misconduct of a party, or (iii) arising from the non-compliance with any mandatory applicable law or  regulation, the total aggregate liability of one party to another party for any claim relating to any breach of this Agreement (or any  Purchase Order or other agreement entered into in connection with this Agreement) (a "Claim") shall be limited to the aggregate  amount of the purchase prices paid by Distributor to Accuray for Products pursuant to this Agreement (or any Purchase Order or  other Agreement entered into in connection with this Agreement) during the twelve calendar months preceding the date of the  notification to the other party of such Claim less any amounts paid or payable in respect of any other Claim of which the other party  was notified during such twelve month period.     11.4. Notice; No Waiver. Each party shall not unreasonably delay notification to the other party of any Claim. Nothing in this Section 11  shall be deemed a waiver by any party of any right to injunctive relief to the extent it is available to such party.     12. MISCELLANEOUS PROVISIONS     12.1. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the Federal Republic of Germany excluding the United Nations Convention on Contracts of International Sale of Goods (CISG) and the provisions of German private  international law.     12.2. Modification. Notwithstanding any provision to the contrary in this Agreement, Distributor and Accuray may agree, by execution of a  written agreement, to modify any term or provision of this Agreement, including, without limitation, the duties of the parties, the  Quote and Purchase Order approval procedure, the pricing of the Products and Services, and the payment terms, with respect to any  single or number of Customer opportunities, Quotes, or Purchase Orders.     12.3. Publicity. Both parties may not use the other party's name or trademarks on its literature, signs, or letterhead, nor may it make press  releases or other public statements disclosing its relationship under this Agreement or otherwise without the prior written consent  of the other party, which shall not be unreasonably withheld or delayed.     12.4. Goodwill. Distributor agrees that it will help develop and work to preserve the goodwill of Accuray, and will not unreasonably harm  that goodwill. In the event of termination of this Agreement for any reason, Distributor will not do anything to unreasonably harm  the goodwill of Accuray.     12.5. Titles. Titles of the various paragraphs and sections of this Agreement are for ease of reference only and are not intended to change  or limit the language contained in those paragraphs and sections.     12.6. Assignment. Neither this Agreement, nor any of the rights, interests, or obligations under this Agreement may be assigned or  delegated, in whole or in part, by operation of law or otherwise, by any party without the prior written consent of the other party,  and any such assignment without such prior written consent shall be null and void; provided, however, that this Agreement may be  assigned by a Party in connection with a Change in Control of such party, subject to the specific termination and other rights set  forth in the Strategic      19
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+
+
+     Alliance Agreement upon such Change in Control; provided, further, that Siemens may assign its rights and obligations under this  Agreement to any Distributor that agrees, in writing, to be bound by and comply with the terms and conditions of this Agreement  and the provisions of the Strategic Alliance Agreement, provided, that no such assignment shall relieve Siemens of its obligations  hereunder or thereunder if such Distributor does not perform such obligations. Subject to the foregoing, this Agreement will be  binding upon, inure to the benefit of, and be enforceable by, the parties and their respective successors and permitted assigns.     12.7. Conduct.     12.7.1. Both parties prohibit the harassment of their employees and contractors in any form. They consider harassment of, or  discrimination against, their employees and affiliated persons a very serious matter and will investigate all complaints of  inappropriate conduct. Where the investigation uncover harassment or discrimination, the other party may take  reasonable corrective action, including, without limitation, termination of this Agreement for material breach.     12.7.2. During the Term, Accuray shall comply, in all material respects, with Siemens' Code of Conduct, attached hereto as Exhibit B  (the "Code of Conduct"). Siemens shall give Accuray written notice of any change to its Code of Conduct as soon as  reasonably practicable.     12.7.3. During the Term, Distributor shall comply, in all material respects, with the Business Conduct Guidelines of Siemens and all  other Siemens internal regulations and guidelines.     12.8. Quality Assurance Agreement. During the Term and in connection with its performance of its duties under this Agreement, Accuray  shall comply, in all material respects, with Siemens' Quality Assurance Agreement attached hereto as Exhibit C, with the exception of  any provisions thereof related to barcoding.     12.9. Notices. All notices and other communications hereunder shall be in writing and shall be deemed duly given (a) on the date of delivery  if delivered personally, (b) if by facsimile, upon written or electronic confirmation of receipt (if sent during business hours of the  recipient, otherwise on the next business day following such confirmation), (c) on the first business day following the date of  dispatch if delivered utilizing a next-day service by a recognized next-day courier, (d) on the earlier of confirmed receipt or the fifth  business day following the date of mailing if delivered by registered or certified mail, return receipt requested, postage prepaid. All  notice hereunder shall be delivered to the addresses set forth below:     20
+
+
+
+   12.10. Waiver. The waiver of any breach or default of any provision of this Agreement will not constitute a waiver of any other right  hereunder or of any subsequent breach or default.     12.11. Severability. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, the remaining  provisions of the Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable  to the maximum extent permissible by law.     12.12. Survival. The expiration or termination of this Agreement for any reason will not release either party from any liabilities or obligations  set forth herein which (i) the parties have expressly agreed will survive any such expiration or termination; or (ii) remain to be  performed or by their nature would be intended to be applicable following any such termination or expiration. In addition to the  foregoing, the following provisions shall survive any termination or expiration of this Agreement: Section 3.8 (Warranty); Section  3.11 (Compliance with Laws); Section 4.6 (Warranty); Section 6.2 (Effect of Termination); Section 6.3 (No Termination  Compensation); Section 6.4 (Accruals); Section 7 (Dispute Resolution); Section 8 (Confidentiality); Section 9 (Intellectual Property  Rights); Section 10 (Indemnities), Section 11 (Liability) and Section 12 (Miscellaneous Provisions).     12.13. Force Majeure. Neither party will be responsible for any failure or delay in its performance under this Agreement (except for the  payment of money) due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts,  shortages of or inability to obtain labor, energy, raw materials or supplies, war, acts of terror, riot, acts of God or governmental  action.     12.14. Amendments. Any amendment or modification of this Agreement must be made in writing and signed by duly authorized  representatives of each party. For Accuray, a duly authorized representative must be any of the following: CEO, CFO, General  Counsel or Associate General Counsel.     12.15. English Language Requirement. This Agreement is written in the English language as spoken and interpreted in the United States of  America, and such language and interpretation shall be controlling in all respects.     12.16. Foreign Currency. Distributor acknowledges and agrees that it shall assume all risk associated with any fluctuation of foreign  currency exchange rates associated with its pricing of Products and Services to Customers in a currency other than US Dollars. All  payments made by Distributor to Accuray shall be in US Dollars.     12.17. Entire Agreement. This Agreement and the Strategic Alliance Agreement contain the entire agreement of the parties hereto with
+
+To Accuray:    To Distributor:         Accuray Incorporated    Siemens AG  Attention: Chief Financial Officer    Henkestr. 127  1310 Chesapeake Terrace    91054 Erlangen  Sunnyvale, CA 94089    Germany  Facsimile: +1 (408) 789-4205    Attn: Healthcare General Counsel, Ritva Sotamaa  with cc to: General Counsel    Facsimile: + 49/### - ## - ####
+
+
+
+
+
+respect to the subject matter hereof, and supersedes all prior understandings, representations and warranties, written and oral. If  any part of the terms and conditions stated herein are held void or unenforceable, such part will be treated     21
+
+
+
+
+
+     as severable, leaving valid the remainder of the terms and conditions. In case of any contradiction between this Agreement and the  Strategic Alliance Agreement, the terms of this Agreement shall prevail.     12.18. Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together  will constitute one and the same instrument.     SIGNATURE PAGE FOLLOWS     22
+
+
+
+
+
+     IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the Effective Date by their duly authorized representatives.  The parties acknowledge and agree that this Agreement does not become effective until it has been signed by all parties indicated below.
+
+      SIGNATURE PAGE TO MULTIPLE LINAC AND MULTI-MODALITY DISTRIBUTOR AGREEMENT
+
+DISTRIBUTOR:     ACCURAY INCORPORATED:             By: /s/ Christian Klaussner     By: /s/ Euan Thompson             Print name: Christian Klaussner     Print name: Euan Thomson             Title: HIM OCS CFO     Title: President and Chief Executive Officer             Date: June 8, 2010     Date: June 7, 2010                        By: /s/ Holger Schmidt     By: /s/ Darren Milliken             Print name: Holger Schmidt     Print name: Darren Milliken             Title: HIM OCS CEO     Title: Senior Vice President and General Counsel             Date: June 8, 2010     Date: June 7, 2010
+
+
+
+
+
+     SCHEDULE 2.3.2     ACCEPTANCE PROCESS     · Accuray shall have 5 Business Days from date of the submission of a proposed Multiple LINAC Purchase or Multi-Modality Purchases by  Siemens in which to either give or withhold approval of such purchase, with any failure to approve or disapprove of such purchase in  such period constituting disapproval;     · Such approval may be given by either Accuray's applicable General Regional Manager or a corporate representative of Accuray, expressly  designated with such approval authority in writing by Accuray to Siemens;     · Siemens' shall provide any information concerning such proposed purchase and the proposed purchaser as is reasonably requested by  Accuray;     · Such approval of any such proposed purchase must not be unreasonably withheld or delayed;     · In determining whether to grant such approval, Accuray may consider, at a minimum:     · Existing exclusivity arrangements between Accuray and Third Parties;     · Prior and current contact with the proposed purchaser by either Party;     · Other commercial relationships that either Party may have with the proposed purchaser;     · Bona fide concerns about the suitability of the proposed purchaser; and     · Whether Accuray or any of its distributors have obtained any required regulatory clearances and/or import licenses required in  connection with the proposed purchase.
+
+
+
+
+
+     EXHIBIT A     DISTRIBUTOR DISCOUNTS ON PRODUCTS AND SERVICES
+
+
+
+* Siemens distributor channel discount.     Siemens Bundled Sales Price= (List Price (1- (Volume Discount + Distributor Discount))
+
+      EXHIBIT B     SIEMENS CODE OF CONDUCT     SIEMENS     Code of Conduct for Siemens Suppliers     This Code of Conduct defines the basic requirements placed on Siemens' suppliers of goods and services concerning their responsibilities  towards their stakeholders and the environment. Siemens reserves the right to reasonably change the requirements of this Code of Conduct due to  changes of the Siemens Compliance Program. In such event Siemens expects the supplier to accept such reasonable changes.     The supplier declares herewith:     · Legal compliance     ·  to comply with the laws of the applicable legal system(s).     ·  Prohibition of corruption and bribery     · to tolerate no form of and not to engage in any form of corruption or bribery, including any payment or other form of benefit conferred  on any government official for the purpose of influencing decision making in violation of law.     ·  Respect for the basic human rights of employees     · to promote equal opportunities for and treatment of its employees irrespective of skin color, race, nationality, social background,  disabilities, sexual orientation, political or religious conviction, sex or age;  · to respect the personal dignity, privacy and rights of each individual;  · to refuse to employ or make anyone work against his will;  · to refuse to tolerate any unacceptable treatment of employees, such as mental cruelty, sexual harassment or discrimination;  · to prohibit behavior including gestures, language and physical contact, that is sexual, coercive, threatening, abusive or exploitative;  · to provide fair remuneration and to guarantee the applicable national statutory minimum wage;  · to comply with the maximum number of working hours laid down in the applicable laws;  · to recognize, as far as legally possible, the right of free association of employees and to neither favor nor discriminate against  members of employee organizations or trade unions.      · Prohibition of child labor     · to employ no workers under the age of 15 or, in those countries subject to the developing country exception of the ILO Convention  138, to employ no workers under the age of 14.      · Health and safety of employees     · to take responsibility for the health and safety of its employees;  · to control hazards and take the best reasonably possible precautionary measures against accidents and occupational diseases;  · to provide training and ensure that employees are educated in health and safety issues;  · to set up or use a reasonable occupational health & safety management system(1)
+
+Discount Type
+
+List Price   Range  USD     Volume   Discount     Distributor   Discount*  Volume Discounts - Tier # 1    {*****}   {*****}   {*****}  Volume Discounts - Tier # 2    {*****}   {*****}   {*****}  Volume Discounts - Tier # 3    {*****}   {*****}   {*****}  Volume Discounts - Tier # 4    {*****}   {*****}   {*****}  Volume Discounts - Tier # 5    {*****}   {*****}   {*****}  Volume Discounts - Tier # 6    {*****}   {*****}   {*****}  Volume Discounts - Tier # 7    {*****}   {*****}   {*****}  Volume Discounts - Tier # 8    {*****}   {*****}   {*****}  Volume Discounts - Tier # 9    {*****}   {*****}   {*****}  Volume Discounts - Tier # 10    {*****}   {*****}   {*****}  Volume Discounts - Tier # 11    {*****}   {*****}   {*****}  Volume Discounts - Tier # 12    {*****}   {*****}   {*****}
+
+
+
+
+
+   · Environmental protection     · to act in accordance with the applicable statutory and international standards regarding environmental protection;  · to minimize environmental pollution and make continuous improvements in environmental protection;  · to set up or use a reasonable environmental management system(1)     ·  Supply chain     ·  to use reasonable efforts to promote among its suppliers compliance with this Code of Conduct;  · to comply with the principles of non discrimination with regard to supplier selection and treatment.
+
+(1) For further information see www.siemens.com/procurement/cr/code-of-conduct
+
+      EXHIBIT C     SIEMENS QUALITY ASSURANCE AGREEMENT     Please see attached.
+
+      SIEMENS     For internal use only  Copyright © Siemens AG 2002. All rights reserved.     Quality Requirement Med     Identification of Products and basic  requirements for packaging  Requirements for Suppliers     QR Med 1 A1     Siemens Medical Solutions  and affiliated Companies     Issued by Med Quality Management & Regulatory Affairs     Released 2007-09-28 by the Med Quality Steering Board (QSB)  Valid from 2007-11-01     04798372 AND 02S 04     1
+
+
+
+
+
+
+
+
+
+   2
+
+Contents
+
+    1 Purpose and scope 3       2 Definitions and abbreviations 3          2.1 Material No. 3    2.2 Revision 3    2.3 Serial No. 3    2.4 Data Identifier 3    2.5 Expiration date 4    2.6 Batch 4    2.7 Shelf life  4         3 Reference documents 4       4 Requirements 4          4.1 Identification of parts, components and systems 4    4.2 Labeling of parts, components, systems and its packaging 4    4.3 Spacing  6         5 Basic requirements for packaging 7       6 Literature 7       7 Transition and retrospective measures 7       8 Changes to prior version 7       9 Attachments 7
+
+Author:
+
+Gabriele Franz    AX QP         Reviewer:
+
+Volker Glahn    QM&RA  Philippe Hoxter    CSQ
+
+
+
+
+
+     1 Purpose and scope     For Siemens Medical Solutions it is a basic requirement that any part, component or system is identified the same way worldwide. This document  lists the minimum requirements for suppliers of Siemens Medical Solutions describing  · how parts, components and systems are identified with their attributes and  · how attributes are labeled both as plain text as well as barcode on products and its packaging. Detailed specifications with regards to the labeling  of products are defined for the individual product concerned.     2 Definitions and abbreviations      2.1 Material No.     The Siemens Medical Solutions Material No. is used to uniquely identify products (parts, components and systems). It consists of an 8-digit  identification no. assigned by Siemens Medical Solutions.     Previously, the term "Part no." was also used; it is replaced by the term "Material No.".      2.2 Revision     The Revision (abbreviated "Rev.") serves to distinguish between different update statuses of hardware. It is assigned by Siemens Medical  Solutions.     The English term "Revision" replaces the German term "Erzeugnisstand" (abbreviated "ES") and "Ausführungsstand" (abbreviated "AS").     2.3 Serial No.     The Serial No. is an identifying attribute used to uniquely identify hardware or software with the same Material No. .     For suppliers the Serial No. can consist of up to 15 alphanumeric digits; it is however recommended to use only a 6 digit numerical Serial No. where  possible.     The Serial No. may contain a dash (-) or a slash (/), but no other special characters (e.g. # + * ?). Spaces, lower-case letters or language-specific  characters (e.g. Ä, Ö, Ü) are not allowed within the Serial No. .     The characters "L", "SxxL" or "Sxx" at the end or the beginning of the Serial No. should be avoided (xx = any alphanumerical character).     For any Serial No. that is numeric only (i.e. has no letters) it is allowed to omit printing of leading zeros („0").     It is recommended to use the Serial No. of the supplier if it complies with the principles described above.     2.4 Data Identifier     Data Identifiers are used in the barcode to indicate that the information following the Data Identifier is data of a certain attribute. The Data  Identifier enables the barcode reading program to recognize that the following information represents a certain type of attribute.     Data Identifiers to be used:
+
+   3
+
+1P    Material No.   2P   Revision (for packaging only)  S    Serial No.   Q   Quantity (for packaging only)  14D    Expiration date (for packaging only)   T   Batch (for packaging only)
+
+
+
+
+
+     2.5 Expiration date     The format of the expiration date shall be definite and specified as follows: YYYYMMDD     2.6 Batch     The batch is an alphanumeric ident number with 10 digits, used to identify parts manufactured or shipped together. Is no batch provided on the  packing but required, a batch is initiated in the stock.     2.7 Shelf life     If a shelf life is defined for parts the shelf life has to be filed in calendar days. (365 days per year)     3 Reference documents     n.a.     4 Requirements     4.1 Identification of parts, components and systems     Non-serialized parts (including spare parts) and components are identified using a Material No. . If necessary, different statuses of a part,  component or system can be distinguished via the Revision.     Serialized parts, components and systems are identified using the combination of Material No. and Serial No. . In addition, the Revision may be  used to distinguish between different statuses of hardware.     4.2 Labeling of parts, components, systems and its packaging     In general, requirements with respect to labeling have to be defined for the product concerned. However, minimum requirements are specified in  order to allow proper identification throughout all processes involved. This chapter lists those minimum requirements.     For all material numbers specified by Siemens the parts and its packaging have to be labeled according to the requirements listed below. The label  depends on whether a part/component/system     · is serialized  · contains a revision level  · is classified as an IVK ("Installed Volume Component")  · shall be handled by expiration date or batch     Siemens defines those requirements per individual Material No. .     4
+
+
+
+
+
+
+
+   5
+
+Color     Usually white label with black printing other colors are allowed as long as barcode/plain text  can be read         Barcode content    1P <Material No. >       S <Serial No.>         Additionally for packaging only    2P <product Revision>       Q <quantity of products in this packaging (numeric only), usually 1>              It is not allowed to label Revision and Quantity on product identification labels!              e.g.: 1P01234567 as barcode *) (1P) Model No. 01234567           S1001 as barcode *) (S) Serial No. 1001
+
+   Each symbol structure with start and stop character including Data Identifier (e.g. "1P" or  "S"), but without symbol check character.              No space allowed between Data Identifier and attribute.              It is not allowed to print any other information in the barcode fields described above.         Barcode type    Code 39 according to ISO/IEC 16388         Narrow element (bar or space)    Min. 0,17 mm         Ratio of wide element to narrow element    Min. 2,25 : 1         Barcode height    Min. 2 mm, typical 4mm         Plain text (below barcode)    (1P) Model No.: <Material No.>       (S) Serial No.: <Serial No.>         Additionally for packaging only    (2P) Revision: <product Revision>       (Q) Quantity: <quantity of products in this packaging (numeric only), usually 1>              It is not allowed to label Revision and Quantity on product identification labels!
+
+   Data Identifier (e.g. "1P" or "S") in brackets in front of data element title (e.g. ''Model No."  or "Serial No.") in plain text!              e.g.: (1P) Model No.: 01234567 *) (1p) Model No. 01234567       (S) Serial No.: 1001 *) (S) Serial No. 1001
+
+   Note: Due to 21CFR1020.30 section e) the term "Model No." shall be used instead of the  term "Material No." in plain text on all labels.
+
+
+
+It is not allowed to print any other information near the data fields described above. If any  other information is printed, it must be printed in a manner so that it can't be misinterpreted  as being part of the fields described above; this can be done by printing other information at  the very right side of the label.         Additionally for products only
+
+
+
+For IVKs or System IVKs, the text "IVK" or "SYSTEM IVK" shall be printed on the very  right side of the label. It has to be ensured that this text can't be misinterpreted as being part  of the Serial No. ; this can be done by printing this text on a different level. [Siemens  Medical Solutions decides and specifies whether a product is an IVK or System IVK.]
+
+
+
+
+
+
+
+
+
+Additionally for packing only    The Expiration date of parts with Shelf life is fixed below the quantity as following:       Expiration date: <date of expiration> YYYYMMDD
+
+   For parts which require a Batch, the batch is fixed below the Expiration date as following:  AAAAAAAAAA              For a transition period the batch can also be fixed above the material number         Font    Universe, if not possible use similar font (e.g. Helvetica)
+
+*) In case of limited space, it is possible to print the bar code next to (and not under) the clear text.     4.3 Spacing      Minimum distances are:
+
+
+
+
+
+   5) Expiration date and 6) Batch can be printed in barcode additionally.
+
+(A)    Horizontal distance from edge (quiet zone)   >5 mm  (B)    Vertical distance from edge   >2 mm  (C)    Vertical distance between printing areas   >1 mm
+
+Legend:  a) printing area for barcode             b) printing area for plain text
+
+For a transition period the batch can also be fixed above the material number     6
+
+
+
+
+
+     5 Basic requirements for packaging     Especially for spare parts appropriate packaging are required for the global shipping process. Should those packaging contain wood, generally  "non wood-packaging" according IPPC (International Plant Protection Convention) shall be used, but fumigation of such packaging is not  allowed.     Packaging shall be designed in a suitable way to protect the packed good against transportation load according to IEC 60721-3-2 class's 2M2/2K4     International pictograms following the IEC 60601 series shall be used for parts which fall under specific restrictions for transport or storage.     The specification of packaging especially for spare parts is within the responsibility of the Business Unit responsible for the product.     6 Literature     ISO/IEC 16388 "Information technology — Automatic identification and data capture techniques — Bar code symbology specifications — Code  39".     IEC 60721-3-2 Classification of environmental conditions — Part 3: Classification of groups of environmental parameters and their severities —  Section 2: Transportation     7 Transition and retrospective measures     n.a.     8 Changes to prior version     CR-No.: 2007-005  Changes to previous edition 04798372 AND 02S 03:     · Chapter 2: Reference document IEC 60721-3-2 added   · Chapter 5: Design of packaging changed     CR-No. 2006-008 (CR N06/0207)  Changes to previous edition 04798372 AND 02S 02:     · Title: Added: and basic requirements for packaging  · Chapter 3.4 Data Identifier for Expiration Date and Batch added  · Chapter 3.5 — 3.7: Completely new  · Chapter 4.2 Added: Expiration date and batch  · Chapter 4.3. Added: labeling of Expiration Date and Batch,  · Chapter 5: Completely new     CR-No. 2006-01, 2006-02  Changes to previous edition 4798372 AND 02S 01:     · Chapter 2, 4.2 : EN 800 replaced by ISO/IEC 16388  · Chapter 4.2 : general requirements at the beginning stated more clearly, footnote added     9 Attachments     n.a.     7

full_contract_txt/ADAMSGOLFINC_03_21_2005-EX-10.17-ENDORSEMENT AGREEMENT.txt

@@ -0,0 +1,305 @@
+REDACTED COPY
+
+CONFIDENTIAL TREATMENT REQUESTED
+
+CONFIDENTIAL PORTIONS OF THIS
+
+DOCUMENT HAVE BEEN REDACTED
+
+AND HAVE BEEN SEPARATELY
+
+FILED WITH THE COMMISSION
+
+  1
+
+
+
+
+
+ENDORSEMENT AGREEMENT
+
+This Agreement is entered into on January 13, 2005 between professional golfer, TOM WATSON, (hereinafter referred to as "CONSULTANT") and ADAMS GOLF, LTD. (hereinafter referred to as "ADAMS GOLF").
+
+WITNESSETH
+
+WHEREAS, ADAMS GOLF desires to obtain the right to use the name, likeness and ENDORSEMENT of CONSULTANT in connection with the advertisement and promotion of ADAMS GOLF'S PRODUCT;
+
+NOW THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
+
+CONTRACT PERIOD
+
+1.   TERM OF CONTRACT
+
+The Term of this Agreement shall be for a period of [* ****] years and [*****] months commencing the 1st day of September 2004 and terminating the [*****] day of [*****].
+
+2.   DEFINITIONS
+
+As used in this Agreement, the following terms shall be defined as set forth below:
+
+    A. CONSULTANT'S "ENDORSEMENT" means the right to use the CONSULTANT'S name, fame, nickname, autograph, voice, facsimile, signature, photograph, likeness, and image in connection with the marketing, advertising, promotion and sale of ADAMS GOLF'S PRODUCT.
+
+B."PRODUCT" shall mean all golf clubs including, but not limited to, metal woods,  drivers, fairway woods, irons, iron- woods, utility clubs, wedges, and putters, bags, and headwear.   C."MANDATORY PRODUCTS" shall mean the following ADAMS GOLF PRODUCTS  that CONSULTANT must exclusively play/use in all Champions/Senior Professional Golf Association (SPGA) and Professional Golf Association (PGA) events at all times:
+
+[***** ]  Confidential Material redacted and filed separately with the Commission.   2
+
+
+
+
+
+  1.[*****] 2.Sufficient [*****] to maintain total minimum of [*****] ADAMS GOLF  [*****] (includes [*****])[*****] at all times 3.[*****] 4.[*****] (CONSULTANT may continue to place the [*****] logo on the [*****] consistent with historical practice.)
+
+D. "CONTRACT TERRITORY" shall mean the entire world.
+
+CONSULTANT'S OBLIGATIONS
+
+3.   CONSULTANT'S ENDORSEMENT
+
+CONSULTANT hereby gives and grants to ADAMS GOLF the exclusive right and license to use CONSULTANT'S ENDORSEMENT in connection with the manufacture, sale, distribution, advertising and promotion of PRODUCT in the CONTRACT TERRITORY.   4. EXCLUSIVITY OF ENDORSEMENT   During the term of this Agreement, unless otherwise authorized at the sole discretion of ADAMS GOLF in writing, CONSULTANT shall not:   A.give the right to use or permit the use of CONSULTANT'S name, facsimile signature, nickname, voice or likeness to any other manufacturer or seller of PRODUCT;
+
+B.sponsor or endorse PRODUCT made or sold by any other manufacturer or seller; or
+
+C.serve as a CONSULTANT or advisor of any other manufacturer or seller of PRODUCT.
+
+D.Notwithstanding paragraphs 4A, 4B and 4C above, CONSULTANT shall be entitled to endorse and play the [*****]. The parties expressly  agree that CONSULTANT may  permit [*****] the use of CONSULTANT'S  name and/or likeness in [*****] print and/or television advertisement provided that this is executed in a manner consistent with [*****] past  [*****] advertising practice using similarly situated professional golfers  with competing golf club endorsement agreements that include [*****]. If  [*****] use of CONSULTANT  varies from past practice of utilizing similarly situated professionals, CONSULTANT will take action to remedy the situation [*****]. If CONSULTANT participates directly in any [*****] sponsored photo shoots for advertising or PR, CONSULTANT shall wear his ADAMS GOLF [*****]. The parties further expressly agree that CONSULTANT'S endorsement of the [*****] shall not include the right to place a [*****] logo on his ADAMS GOLF [*****] or the ADAMS GOLF  [*****]. If CONSULTANT'S relationship with [*****] terminates during this Agreement, CONSULTANT shall be permitted to replace the [*****] endorsement with another [*****] endorsement under the same terms and conditions expressed herein.
+
+[***** ]  Confidential Material redacted and filed separately with the Commission.   3
+
+
+
+
+
+  E.Notwithstanding  paragraphs 4A, 4B and 4C above, CONSULTANT  shall not be required to wear ADAMS  GOLF [*****] in [*****] ads.
+
+5.   EXCLUSIVE USE OF PRODUCT
+
+During the term of this Agreement, CONSULTANT shall exclusively play/use the MANDATORY PRODUCT. (It is expressly understood by the parties that CONSULTANT may play [* ****] clubs in the bag other than ADAMS GOLF clubs including, but not limited to, a putter by a manufacturer other than ADAMS GOLF but may not endorse those clubs and/or putter.)
+
+6.    CONSULTANT'S ENDORSEMENT OF NON-COMPETITIVE PRODUCT
+
+If CONSULTANT endorses or promotes a non-competitive product and in that endorsement or promotion CONSULTANT wears, plays, uses, holds or is in any way associated with a product that would constitute PRODUCT as defined under this Agreement, CONSULTANT shall use objectively reasonable best efforts to ensure that PRODUCT is an ADAMS GOLF PRODUCT and it shall not be altered or changed in appearance in the endorsement in any manner whatsoever without the express written consent of ADAMS GOLF. When endorsing a non-competitive product, under no circumstances shall CONSULTANT wear, play, use, hold or in any way be associated with an ADAMS GOLF competitor's Product.
+
+7.   CONSULTANT'S SATISFACTION OF MANDATORY PRODUCT
+
+It is particularly and expressly understood and agreed that if CONSULTANT shall find in his sincere best reasonable judgment that the MANDATORY PRODUCT so supplied is not suitable for his use in tournament competition, then he shall promptly notify ADAMS GOLF in writing of such fact and the reasons therefor. Thereafter, ADAMS GOLF shall have a period of thirty (30) days to either, at ADAMS GOLF'S sole discretion, supply CONSULTANT with MANDATORY PRODUCT that is acceptable to him or terminate the agreement. It is agreed that if the contract is terminated pursuant to this paragraph, the compensation due CONSULTANT shall be prorated from the date this Agreement is terminated. Proration of compensation shall be determined on the same repayment schedule as provide in paragraph 8A below.
+
+[***** ]  Confidential Material redacted and filed separately with the Commission.   4
+
+
+
+
+
+  8. MINIMUM NUMBER OF TOURNAMENTS AND POTENTIAL REPAYMENT OF BASE COMPENSATION
+
+    A.  In each and every calendar year of this Agreement, CONSULTANT shall achieve a satisfactory record of play in a minimum of [* ****] professional golf association events on the SPGA and/or PGA tour (which shall include both the PGA and SPGA Tour Skins Games). If for any reason, CONSULTANT should achieve a satisfactory record of play in less than [*****] SPGA and/or PGA tour events in a calendar year, he shall repay ADAMS GOLF an amount per event for each event under [*****] achieved in the given calendar year as follows:
+
+The agreed upon repayment amount per event per calendar year:
+
+1.  Year 1. $[*****] 2.  Year 2 $[*****] 3.  Year 3 $[*****] 4.  Year 4 $[*****] 5.  Year 5 $[*****]
+
+B.Payment shall be made to ADAMS GOLF within one month following the end of the calendar year. For example, if in the calendar year 2005 CONSULTANT  achieves a satisfactory record of play in [*****] events, he shall repay ADAMS GOLF [*****] dollars no later than January 31, 2006.
+
+C.In the event that CONSULTANT is prevented from competing for reasons outside his control, the parties  agree to a good faith attempt to resolve the issues. If a resolution can not be reached, ADAMS GOLF may, at its sole discretion, demand prorated repayment pursuant to the repayment schedule in paragraph 8A above.
+
+9.     PRODUCT DESIGN   During the term of this Agreement, CONSULTANT shall use best efforts to cooperate with ADAMS GOLF in giving advice, suggestions and recommendations concerning the acceptability and playability of current ADAMS GOLF lines, the development of new ADAMS GOLF lines, and information about significant golf PRODUCT and golf market trends, and meet as reasonably requested with ADAMS GOLF'S Design/Testing Teams.   10.    PROMOTION OF PRODUCT
+
+     During the term of this Agreement, CONSULTANT shall use best efforts to wear the headwear and display ADAMS GOLF'S brand name and to demonstrate, discuss and emphasize the newest features of ADAMS GOLF PRODUCT at every opportunity including but not limited to all Senior PGA tour events and promotional and advertising events in which CONSULTANT takes part.
+
+[***** ]  Confidential Material redacted and filed separately with the Commission.   5
+
+
+
+
+
+  11.    PROMOTIONAL APPEARANCES
+
+A.During the term of this Agreement, CONSULTANT shall use best efforts to be available for such press interviews, radio or TV appearances arranged for CONSULTANT by ADAMS GOLF which are compatible with CONSULTANT'S own practice, play and personal time requirements. CONSULTANT will be required to be available after a tournament for selected interviews, either the Sunday afternoon or Monday morning following the tournament. In all such interviews and appearances, CONSULTANT will use his best efforts to make reference to the ADAMS GOLF PRODUCT and wear [*****] and display ADAMS GOLF'S brand name.
+
+B.During  the term of this Agreement, CONSULTANT  shall make himself available on not more than [*****]  days for television and radio commercials, photo shoots, modeling and  promotional appearances compatible with CONSULTANT'S  own practice, play and personal time requirements. Said activities shall  be directly related to the promotion of ADAMS GOLF PRODUCT. ADAMS GOLF  shall  reimburse CONSULTANT  for reasonable travel expenses for CONSULTANT when making special appearances for ADAMS GOLF pursuant to this paragraph but ADAMS GOLF shall not pay CONSULTANT session fees, residual payments or the like for television appearances. Travel expenses shall include jet fuel or first-class round-trip airfare and lodging, meals and local transportation.
+
+12.   BEHAVIOR
+
+During the term of this Agreement, CONSULTANT will conduct himself at all times with due regard to public morals and conventions. If the value of CONSULTANT'S ENDORSEMENT is materially reduced or impaired because CONSULTANT:
+
+A.committed or shall commit any public act that involves moral turpitude, B.commits or violates any material foreign, U.S., federal, or other applicable state or local law, C.commits any act which brings him into public disrepute, contempt, scandal or  ridicule, or which insults or offends the community, D.makes any statements in derogation, in any material respect, of ADAMS GOLF or any of its affiliates or any of their respective PRODUCT or  services and such statement is made to the general public or becomes a matter of public knowledge,
+
+then at any time after the occurrence of such act, thing or statement, ADAMS GOLF shall have the right, in addition to its other legal and equitable remedies, to immediately terminate this Agreement, by giving written notice to CONSULTANT. ADAMS GOLF must exercise its right of termination within ninety (90) days of its senior management becoming aware of the conduct giving rise to the right of termination.
+
+[***** ]  Confidential Material redacted and filed separately with the Commission.   6
+
+
+
+
+
+  13.  FREEDOM TO CONTRACT
+
+CONSULTANT represents and warrants that CONSULTANT is free of all prior undertakings and obligations which would prevent or tend to impair either the full performance of CONSULTANT'S obligations hereunder or ADAMS GOLF'S full enjoyment of the rights and privileges granted to it by CONSULTANT.
+
+14. INDEMNITY
+
+CONSULTANT agrees to protect, indemnify and hold ADAMS GOLF harmless from any and all liability, claims, causes of action, suits, damages and expenses (including reasonable attorneys' fees and expenses) for which it becomes liable or is compelled to pay by reason of a breach of any covenant or representation by CONSULTANT in this Agreement.
+
+15.  ABSENCE OF AGENCY
+
+CONSULTANT shall not and will not have the right or authority to bind ADAMS GOLF by any representation or in any other respect whatsoever or to incur any obligation or liability in the name of or on behalf of ADAMS GOLF.
+
+16. MEMBERSHIPS
+
+CONSULTANT warrants and represents that during the term of this Agreement he is a member in good standing of SAG, AFTRA or any other organization having jurisdiction over CONSULTANT'S services hereunder. This Agreement is subject to all of the terms and conditions of the collective bargaining agreements with SAG, AFTRA, or any other union agreements or codes having jurisdiction over CONSULTANT'S services hereunder. Any and all payments required to be made to SAG or AFTRA or any other organization having jurisdiction over CONSULTANT'S services hereunder, shall be the sole responsibility of CONSULTANT.
+
+ADAMS GOLF'S OBLIGATIONS
+
+17.   SUPPLY OF PRODUCT
+
+A. During the term of this Agreement, ADAMS GOLF shall provide CONSULTANT  with sufficient quantities of such MANDATORY  PRODUCTS  for CONSULTANT'S  use as CONSULTANT  may reasonably need to fulfill his obligations under this agreement.  ADAMS  GOLF  shall pay all charges in connection with the delivery of MANDATORY PRODUCTS to CONSULTANT.
+
+B.In  addition to paragraph 17A above, ADAMS GOLF  shall provide CONSULTANT  with [*****] sets of clubs for CONSULTANT'S family and friends each calendar year of this Agreement.
+
+[***** ]  Confidential Material redacted and filed separately with the Commission.   7
+
+
+
+
+
+  18.  BASE COMPENSATION
+
+For the entire term of this Agreement, from September 1, 2004 through [*****] ADAMS GOLF shall pay CONSULTANT a base compensation of [*****] dollars. The base compensation shall be paid [*****].
+
+19.   PERFORMANCE BONUSES AND TOTAL COMPENSATION LIMITATION
+
+  A. In addition to his base compensation, CONSULTANT shall also be entitled to bonuses based on performance in particular PGA and SPGA events and year-end standing as follows:
+
+  1. If CONSULTANT wins a PGA Tour Major (consisting of the Masters, US Open, PGA and British Open) or the Champion's Tour (SPGA) US Open, CONSULTANT shall receive a bonus of $ [*****].
+
+  2. If CONSULTANT wins a Champions/Seniors Tour (SPGA) major other than the US Open (which shall for the purposes of this agreement consist of the Senior PGA, Senior British, the Tradition and the Ford Seniors) CONSULTANT shall receive a bonus of $ [*****].
+
+3. If CONSULTANT finishes in the top [*****] on the official year end money list of the Champion's Tour (SPGA), CONSULTANT shall also be entitled to a year end performance bonus according to the following schedule:
+
+a.2005 $ [*****] b.2006$ [*****] c.2007$ [*****] d.2008$ [*****] e.2009$ [*****]
+
+B.Notwithstanding  paragraph A and its subparts above, the maximum total annual bonuses shall  in no case exceed the following schedule:
+
+1.2005 $ [*****] 2.2006$ [*****] 3.2007$ [*****] 4.2008$ [*****] 5.2009$ [*****]
+
+(For example, if in the calendar year [*****]CONSULTANT wins every PGA tour major and finishes in the top [*****] on the official year end money list of the Champion's Tour (SPGA), CONSULTANT'S total bonuses shall be [*****] dollars.
+
+[***** ]  Confidential Material redacted and filed separately with the Commission.   8
+
+
+
+
+
+      C.  In the event of ADAMS GOLF'S insolvency or bankruptcy, it is expressly agreed to by the parties that CONSULTANT shall not be obligated to repay any money so long as CONSULTANT continues to fully perform his obligations under this Agreement.   20.  APPROVAL OF ADVERTISING
+
+Prior to publishing or placing any advertising or promotional material which uses CONSULTANT'S name, facsimile signature, nickname, voice or likeness, ADAMS GOLF shall submit the same to CONSULTANT, or CONSULTANT'S designee, for approval, which approval shall not be unreasonably withheld or delayed. If CONSULTANT disapproves, the reasons therefore shall be given to ADAMS GOLF in writing within three (3) business days or shall be deemed approved. ADAMS GOLF agrees to protect, indemnify and hold CONSULTANT harmless from and against any and all expenses, damages, claims, suits, actions, judgments and costs whatsoever, arising out of, or in any way connected with, any advertising material furnished by, or on behalf of, the company.
+
+21.  INDEMNITY
+
+  ADAMS GOLF agrees to defend, indemnify and hold harmless CONSULTANT from any and all liability, claims, causes of action, suits, damages and expenses (including reasonable attorneys' fees and expenses) for which he becomes liable or is compelled to pay by reason of or arising out of any claim or action for personal injury, death or otherwise involving alleged defects in ADAMS GOLF'S PRODUCT, provided that ADAMS GOLF is promptly given notice in writing and is given complete authority and information required for the defense, and ADAMS GOLF shall pay all damages or costs awarded therein against CONSULTANT and any other cost incurred by CONSULTANT in defense of any suit, but shall not be responsible for any cost, expense or compromise incurred or made by CONSULTANT without ADAMS GOLF'S prior written consent.
+
+TERMINATION
+
+22.  FAILURE TO PLAY
+
+Notwithstanding any other paragraph of this Agreement, in the event that CONSULTANT dies or is unable to play tour golf at all, ADAMS GOLF may terminate this Agreement on thirty (30) days' written notice. Upon such termination, CONSULTANT and/or CONSULTANT'S estate shall be required to repay ADAMS GOLF for that period of the Agreement not performed by CONSULTANT. The repayment amount shall be calculated in the same way as repayment is calculated under paragraph 8A.   9
+
+
+
+
+
+  23.  TERMINATION FOR CAUSE
+
+Notwithstanding any other paragraph of this Agreement, if either party commits any material breach of this Agreement, the other party may terminate for cause upon giving fifteen (15) days written notice of such cause and provided the breach is not rectified within such fifteen (15) day period. Upon such termination, CONSULTANT shall be required to repay ADAMS GOLF for that period of the Agreement not performed by CONSULTANT. The repayment amount shall be calculated in the same way as repayment is calculated under paragraph 8A.
+
+24.  ADAMS GOLF'S RIGHTS UPON TERMINATION
+
+A.In  the event of termination of this Agreement,  ADAMS  GOLF  shall cease using the name and/or likeness of CONSULTANT in advertising within [*****] days.
+
+B.In  the event of termination of this Agreement,  ADAMS  GOLF  shall cease using the name and/or likeness of CONSULTANT on Product within [*****] months after termination of this Agreement.
+
+MISCELLANEOUS PROVISIONS
+
+24. SIGNIFICANCE OF HEADINGS
+
+Section headings contained herein are solely for the purpose of aiding in speedy location of subject matter and are not in any sense to be given weight in the construction of this Agreement. Accordingly, in case of any question with respect to the construction of this Agreement, it is to be construed as though such section headings had been omitted.
+
+25. APPLICABLE LAW
+
+This Agreement shall be governed and construed according to the laws of the State of Kansas.
+
+26. ENTIRE AGREEMENT
+
+The provisions of this Agreement are intended by the parties as a complete, conclusive and final expression of their agreement concerning the subject matter hereof, which Agreement supersedes all prior agreements concerning the subject matter, and no other statement, representation, agreement or understanding, oral or written, made prior to or at the execution hereof, shall vary or modify the written terms hereof. No amendments, modifications or releases from any provision hereof shall be effective unless in writing and signed by both parties.
+
+27. WAIVER
+
+Unless otherwise mutually agreed in writing, no departure from, waiver of, or omission to require compliance with any of the terms hereof by either party shall be deemed to authorize any prior or subsequent departure or waiver, or obligate either party to continue any departure or waiver.
+
+[***** ]  Confidential Material redacted and filed separately with the Commission.   10
+
+
+
+
+
+  28. EXECUTION AND DELIVERY REQUIRED
+
+This instrument shall not be considered to be an agreement or contract nor shall it create any obligation whatsoever on the part of CONSULTANT or ADAMS GOLF unless and until it has been signed by CONSULTANT, or a duly authorized representative, and by duly authorized representatives of ADAMS GOLF and delivery has been made of a fully signed original to both parties.
+
+29. SEVERABILITY
+
+Any provision or part of this Agreement prohibited by applicable law shall be ineffective to the extent of such prohibition without invalidating the remaining provisions or parts hereof.
+
+30. RELATIONSHIP
+
+Both parties agree that this Agreement does not constitute and shall not be construed as a constituting of a partnership or joint venture between ADAMS GOLF and CONSULTANT. Neither party shall have any right to obligate or bind the other party in any manner whatsoever, and nothing herein contained shall give or is intended to give any rights of any kind to any third person.
+
+31. ASSIGNMENT AND CHANGE OF CONTROL
+
+Neither ADAMS GOLF nor CONSULTANT shall have the right to grant sublicenses hereunder or to assign, alienate or otherwise transfer any of its rights or obligations hereunder.
+
+32. CONFIDENTIALITY
+
+Both parties understand that the contents of this Agreement, including, but not limited to, all amounts paid or to be paid and any additional consideration, are extremely confidential, and that disclosure of same to any third party could be detrimental to the interests of one or both parties. Therefore, both parties agree not to disclose the terms of this Agreement, without the permission of the other party, to any third party other than to CONSULTANT'S business, legal and financial advisors, and with respect to all such advisors, CONSULTANT shall take all reasonable steps to ensure such confidentiality to ADAMS GOLF. Furthermore, CONSULTANT recognizes that during the course of performing his duties hereunder he may become aware of proprietary, confidential information concerning ADAMS GOLF, its PRODUCT, methods, processes, billing practices, financial condition, etc., or information ADAMS GOLF designates as confidential (collectively "Confidential Information"). CONSULTANT agrees that he will maintain in confidence and not disclose to any third party at any time any such Confidential Information and shall not use any such information to the detriment of ADAMS GOLF or for any purpose not contemplated by the Agreement.     11
+
+
+
+
+
+  33.  ARBITRATION
+
+In the event a dispute arises under this Agreement which cannot be resolved, such dispute shall be submitted to arbitration and resolved by a panel of three arbitrators (who shall be lawyers), in a decision required by a majority of the arbitrators. If the parties cannot agree upon the panel of three arbitrators, then each party may pick an arbitrator and the two chosen arbitrators shall choose upon the three-arbitrator panel. The arbitration shall be conducted in accordance with the Arbitration Rules of the American Arbitration Association. Venue shall be Kansas. The award or decision rendered by the arbitration panel shall be final, binding and conclusive and judgment may be entered upon such award by any court of competent jurisdiction.
+
+34. NOTICE
+
+Every written notice or written report which may be served upon CONSULTANT, according to the terms of this Agreement, may be served by enclosing it in a postpaid envelope addressed to:
+
+Mr. Tom Watson C/O Assured Management Company 1901 W. 47th Place, Suite 200 Westwood, Kansas 66205
+
+or at such other address as is given in writing to ADAMS GOLF by CONSULTANT.
+
+Every written notice which may be served upon ADAMS GOLF, according to the terms of this Agreement, shall be served by enclosing it in a postpaid envelope addressed to:
+
+Attention Legal Department ADAMS GOLF, LTD. 2801 East Plano Parkway Plano, Texas 75074
+
+or at such other address as is given in writing by ADAMS GOLF to CONSULTANT.
+
+12
+
+
+
+
+
+  IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first set forth above.
+
+    APPROVED FOR CONSULTANT                       By: /s/ Tom Watson     Date: January 13, 2005
+
+Tom Watson
+
+
+
+    APPROVED FOR ADAMS GOLF, LTD.                       By: /s/ Oliver G. "Chip" Brewer III     Date: January 13, 2005
+
+Oliver G. ("Chip") Brewer III
+
+  CEO, ADAMS GOLF
+
+    13

full_contract_txt/ADIANUTRITION,INC_04_01_2005-EX-10.D2-RESELLER AGREEMENT.txt

@@ -0,0 +1,145 @@
+Exhibit 10d-2
+
+                               RESELLER AGREEMENT
+
+                                 BY AND BETWEEN
+
+                                PIVX CORPORATION
+
+                                       AND
+
+                               DETTO TECHNOLOGIES
+
+This Reseller Agreement is entered as of this ___ day of _________, 2004 ("Effective Date") by and between PivX Corporation, a California corporation, having its principal place of business at 23 Corporate Plaza Drive, Newport Beach, California, 92661 ("PivX") and Detto Technologies, a Washington corporation, having its principal place of business at 14320 NE 21st Street, Suite 11, Bellevue, Washington, 98007 ("Detto").
+
+NOW THEREFORE, for good and valuable consideration, the parties hereby agree as follows:
+
+1. GRANT OF RIGHTS
+
+1.1 LICENSE. Subject to the terms and conditions of this Agreement, PivX hereby grants to Detto a non-transferable, exclusive license to distribute PivX's Qwik-Fix Pro and any documentation supporting Qwik-Fix Pro provided from time to time by PivX (the "Documentation") within North America, solely to third parties to whom Detto licenses Qwik-Fix Pro ("Third Parties"), and as governed by the terms set forth in Exhibit A (PivX/Detto Reseller Agreement Addendum). PivX also hereby grants to Detto a non-transferable, non-exclusive license to distribute PivX's Qwik-Fix Pro and the Documentation outside of North America, solely to Third Parties and as governed by the terms in Exhibit A. Detto shall have no right to reproduce Qwik-Fix Pro or any part thereof. All copies of Qwik-Fix Pro distributed by Detto shall be distributed pursuant to PivX's current Enterprise License Agreement, as amended by PivX from time to time (the "License"), a copy of which PivX will provide Detto. Detto shall not distribute Qwik-Fix Pro to any Third Party unless the Third Party has accepted the terms of PivX's current License under penalty of perjury and in writing.
+
+1.2 OWNERSHIP. As between PivX and Detto, PivX owns and retains all right, title, and interest in and to Qwik-Fix Pro and Documentation; all trademarks, service marks or trade names associated with Qwik-Fix Pro or Documentation (the "Trademarks"); all copyrights, patents, trade secret rights, and other intellectual property rights therein (collectively, together with Qwik-Fix Pro, Documentation, and Trademarks, the "Property"). Except as expressly granted herein, PivX does not grant to Detto any right or license, either express or implied, in Qwik-Fix Pro, Documentation or Property. Detto shall not reverse engineer, disassemble, decompile, or otherwise attempt to derive source code from Qwik-Fix Pro.
+
+1.3 PIVX CHANNELNET. PivX grants Detto access to PivX ChannelNet as governed by the terms set forth in Exhibit A.
+
+2. DETTO'S OBLIGATIONS
+
+2.1 DETTO'S MARKETING; PUBLIC RELATIONS. Detto obligations for marketing and public relations are governed under the terms in Exhibit A.
+
+2.2 TRADEMARKS; PROPERTY. During the term of this Agreement, Detto shall have the right to use and reproduce the Trademarks in connection with Detto's marketing, advertising, promotion and distribution of Qwik-Fix Pro. Detto's use of the Trademarks shall not create any right, title or interest therein. Detto shall use the Trademarks only in a manner which complies in all material respects with PivX's reasonable policies in effect from time to time, and all
+
+                                       1
+
+such use shall be for PivX's benefit. Detto shall not remove, obscure or alter PivX's copyright notice or the Trademarks from Qwik-Fix Pro or Documentation. If Detto, in the course of distributing Qwik-Fix Pro, acquires any goodwill or reputation in any of the Trademarks, all such goodwill or reputation shall automatically be transferred to and shall vest in PivX when and as, on an on-going basis, such acquisition of goodwill or reputation occurs, as well as at the expiration or termination of this Agreement, without any separate payment or other consideration of any kind to Detto, and Detto agrees to take all such actions necessary to effect such vesting. Detto shall not contest the validity of any of the Property or PivX's exclusive ownership of them. Detto shall not adopt, use, or register, whether as a corporate name, trademark, service mark or other indication of origin, any of the Trademarks, or any word or mark confusingly similar to the Trademarks in any jurisdiction.
+
+2.3 SUPPORT FOR QWIK-FIX PRO. Detto shall provide for all customer support for Qwik-Fix Pro that it resells as governed by the terms set forth in Exhibit A.
+
+2.4 COMPLIANCE WITH APPLICABLE LAWS. Detto shall comply with all laws and regulations applicable to Detto's marketing and distribution of Qwik-Fix Pro hereunder. Without limiting the generality of the foregoing, Detto shall, at its own expense, make, obtain, and maintain in force at all times during the term of this Agreement, all filings, registrations, licenses, permits and authorizations
+
+
+
+
+
+in North America required for Detto to perform its obligations under this Agreement.
+
+2.5 SECURITY ISSUES. Detto shall take all action necessary to ensure that (a) Qwik-Fix Pro and Documentation on Detto's servers or computer systems is appropriately secured so that Qwik-Fix Pro and Documentation can only be viewed, copied, or utilized by licensed Third Parties; and (b) that the object code of the Courseware can only be accessed by employees authorized by PivX and cannot be copied or downloaded by any of Detto's licensees or by any other third party. In addition, Detto shall make its offices and equipment available in person, upon reasonable notice, and to the extent feasible, remotely, to PivX to inspect and test Detto's physical and technical set-up to ensure that Detto is complying with its obligations under this Section. Detto agrees to indemnify and hold PivX harmless in accordance with the provisions of Section 4.4 to the extent that Detto breaches its obligations under this Section 2.5.
+
+2.6 PROTECTION OF PROPRIETARY RIGHTS. Detto shall cooperate without charge (provided that PivX will reimburse out of pocket expenses as agreed in advance in writing), in PivX's efforts to protect PivX's rights in the Property. Detto shall promptly notify PivX of any infringements of PivX's Property Rights that come to Detto's attention. PivX shall have the exclusive right to institute infringement or other appropriate legal action against alleged infringers of its Property Rights. PivX shall incur all expenses in connection therewith and shall retain all monetary recoveries received therefrom.
+
+2.7 NO EXCESS REPRESENTATIONS OR WARRANTIES. Detto covenants that it shall not make any representations or warranties with respect to Qwik-Fix Pro or Documentation in excess of those provided by PivX herein. Detto agrees to indemnify and hold PivX harmless in accordance with the provisions of Section 4.4 to the extent that Detto breaches its covenant under this Section 2.7.
+
+2.8 FULFILLMENT OF DETTO'S OBLIGATIONS. Detto covenants that it will fulfill all of its contractual and legal obligations to its customers. Detto covenants that it will (a) provide its customers with first quality sales and technical support with respect to any copies or licenses of Qwik-Fix Pro sold by Detto, (b) promptly, courteously and appropriately respond to its customers questions, concerns and complaints, and (c) generally deal with its customers in a professional manner that shall add to the good reputation of Detto and PivX. To the extent that Detto fails to fulfill its contractual and legal obligations to its customers, Detto agrees that PivX may elect to fulfill those obligations, or any portion of them, and Detto shall reimburse PivX any costs and expenses so incurred by PivX. Detto agrees to indemnify and hold PivX harmless in accordance with the provisions of Section 4.4 to the extent that it breaches any of its covenants under this Section 2.8.
+
+2.9 U.S. GOVERNMENT - RESTRICTED RIGHTS. Detto covenants to require its customers to accept a click-wrap agreement that, among other things, provides that Qwik-Fix Pro and accompanying documentation are deemed to be "commercial computer Software" and "commercial computer Software documentation,"
+
+                                       2
+
+respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction release, performance, display or disclosure of Qwik-Fix Pro and accompanying documentation by the U.S. Government shall be governed solely by the terms of the Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement.
+
+2.10 BUSINESS DEVELOPMENT. Detto will engage in future business development with PivX as governed by the terms set forth in Exhibit A.
+
+2.11 SALES FORECASTING; SALES METRICS; SALES REPORTING. Detto will provide sales forecasting, sales metrics and sales reporting to PivX as governed by the terms set forth in Exhibit A.
+
+3. PRICE AND PAYMENT; SHIPMENT AND DELIVERY
+
+3.1 SUGGESTED THIRD PARTY PRICES. Third Party prices are governed by the terms set forth in Exhibit A.
+
+3.2 PER COPY FEES. Detto shall pay to PivX for each unit of Qwik-Fix Pro distributed hereunder per copy fees (the "Per Copy Fees") as governed by the terms set forth in Exhibit A. In the event that PivX changes the Third Party prices, Per Copy Fees based on such changed prices shall apply to any order for Qwik-Fix Pro received by PivX after the effective date of the increase. PivX shall provide Detto with at least forty-five (45) days written notice of any increase in the Per Copy Fees.
+
+3.3 PAYMENT. All payments to PivX shall be made within thirty (30) days after the receipt by Detto of the PivX's invoice. Detto shall pay PivX a late charge on outstanding amounts due equal to one and one-half percent (1.50%) per month or the maximum amount allowed by law, whichever is less. All payments shall be made in United States Dollars, free of any withholding tax and of any currency control or other restrictions to PivX. PivX shall have the right, at reasonable times and on reasonable notice, to inspect and audit the books and records of Detto to verify the accuracy of any statements. In the event that such an inspection discloses any error of any amount, the parties shall by appropriate payment promptly adjust for the error. If Detto fails to make payments when due, PivX shall be entitled to, in its sole discretion, to take any one or more of the following: (a) place Detto on credit hold, in which case, PivX may cease to fulfill Detto's orders to any new Third Parties; (b) rescind Detto's right to sell or distribute any additional Qwik-Fix Pro or Documentation hereunder; and (c) to require that Detto direct all future payments, for licenses sold in the past or in the future, from the Third Parties directly to PivX or a lock box or
+
+
+
+
+
+an account designated by PivX for such purpose, to be applied by PivX to the payment default (and interest thereon) until such defaults have been satisfied. All amounts received by PivX hereunder shall be nonrefundable except for any payments received or held under PivX's control pursuant to clause "c" of the last sentence after Detto's payment default has been satisfied.
+
+3.4 TAXES, TARIFFS, FEES. PivX's Suggested Prices and Per Copy Fees do not include any national, state or local sales, use, value added or other taxes, customs duties, or similar tariffs and fees which may be required to be paid or collected upon the delivery of Qwik-Fix Pro or upon collection of the prices for Qwik-Fix Pro or the Per Copy Fees. Should any tax or levy be made, Detto agrees to pay such tax or levy and indemnify PivX against any claim for such amount. Detto represents and warrants to PivX that all Qwik-Fix Pro acquired hereunder is for redistribution in the ordinary course of Detto's business, and Detto agrees to provide PivX with appropriate resale certificate numbers and other documentation satisfactory to the applicable taxing authorities to substantiate any claim of exemption from any such taxes or fees.
+
+3.5 SHIPMENT AND DELIVERY. PivX shall electronically deliver Qwik-Fix Pro to Detto. Detto shall inspect all software delivered to it, upon receipt and shall, within 10 days of receipt, give written notice to PivX of any claim of damage or missing portions. Should Detto fail to give such notice, or fail to obtain an extension of such 10-day period from PivX, the packages shall be deemed to be accepted by Detto. PivX will reasonably accommodate Detto's request to replace its master copy of software that becomes corrupted or damaged. Detto shall contractually require its Third Parties to report any claim of damage or shortages for Qwik-Fix Pro shipped to them within thirty (30) days of the Third Parties receipt of such package (or the time required by applicable law, if longer). PivX shall use commercially reasonable efforts to meet delivery dates requested by Detto, but in no event shall PivX be liable for its failure to meet such dates. In the event that PivX shall be unable to meet Detto's requested ship dates, PivX shall advise Detto of the change in or actual delivery schedule.
+
+                                       3
+
+3.6 SECURITY INTEREST. Detto hereby grants PivX a purchase money security interest in all Qwik-Fix Pro licensed to Detto, all physical media on which Qwik-Fix Pro is located, and all rights licensed to Detto pursuant to this Agreement in the amount of the Total Purchase Price. Detto also grants PivX a security interest in Detto's address list of Third Parties to secure Detto's payment, indemnification, and other obligations hereunder. To secure its rights hereunder, PivX shall have the right to file one or more UCC financing statements and to make such other filings as PivX shall deem appropriate. Detto shall cooperate with PivX with respect to all such filings. Upon PivX's demand, Detto agrees to execute promptly any financing statement, security agreement, chattel mortgage, applications for registration and/or similar documents, and to take any other action deemed necessary for registration or otherwise deemed necessary or desirable by PivX in order to perfect PivX's security interest hereunder. In the event of Detto's default hereunder, PivX may foreclose its security interests and exercise such other rights as provided under the UCC.
+
+4. WARRANTY AND LIABILITY
+
+4.1 PRODUCT WARRANTY. With respect to Qwik-Fix Pro delivered by PivX to Detto on CD-Rom, PivX warrants that for a period of thirty (30) days following delivery to Detto, the media on which Qwik-Fix Pro is furnished to Detto will be free from defects in materials and workmanship during normal use. PivX warrants that Qwik-Fix Pro will substantially conform to the user documentation. EXCEPT AS EXPRESSLY SET FORTH ABOVE, QWIK-FIX PRO AND DOCUMENTATION ARE PROVIDED "AS IS". PIVX HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
+
+4.2 PRODUCT INDEMNITY. PivX will indemnify, defend and hold Detto and its subsidiaries (each, an "Indemnified Party"), harmless from and against any and all claims, losses, costs, liabilities and expenses (including reasonable attorneys' fees), arising as a result of or in connection with any claim that Qwik-Fix Pro or Documentation infringes any intellectual property right of a third party provided: (i) the Indemnified Party promptly gives written notice of any claim to PivX; (ii) the Indemnified Party provides any assistance which PivX may reasonably request for the defense of the claim (with reasonable out of pocket expenses paid by PivX); and (iii) PivX has the right to control of the defense or settlement of the claim, provided, however, that the Indemnified Party shall have the right to participate in, but not control, any litigation for which indemnification is sought with counsel of its own choosing, at its own expense. Additionally, if an injunction or order issues restricting the use or distribution of any of Qwik-Fix Pro or Documentation, or if PivX determines that Qwik-Fix Pro or Documentation are likely to become the subject of a claim of infringement or violation of any proprietary right of any third party, PivX shall in its discretion and, at its option (a) procure the right to continue using, reproducing, and distributing Qwik-Fix Pro and Documentation; (b) replace or modify Qwik-Fix Pro and Documentation so that they become noninfringing, provided such modification or replacement does not materially alter or affect the specifications for or the use or operation of Qwik-Fix Pro; require return of Qwik-Fix Pro to PivX and refund any licensing fees relating to the future use of Qwik-Fix Pro.
+
+4.3 LIMITATION OF LIABILITY. EXCEPT FOR PIVX'S OBLIGATIONS UNDER SECTION 4.2, IN NO EVENT SHALL PIVX'S OR ITS LICENSORS' LIABILITY TO DETTO OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT EXCEED THE TOTAL AMOUNT ACTUALLY RECEIVED BY PIVX HEREUNDER DURING THE PREVIOUS SIX (6) MONTHS. IN NO EVENT SHALL ANY PARTY OR PIVX'S LICENSORS BE LIABLE TO ANOTHER PARTY OR ANY THIRD PARTY FOR LOSS OF DATA, COSTS OF PROCUREMENTS OF SUBSTITUTE GOODS OR SERVICES OR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES UNDER ANY CAUSE OF ACTION, EVEN IF
+
+
+
+
+
+SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF AN ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
+
+                                       4
+
+4.4 INDEMNIFICATION. Detto shall indemnify and hold PivX harmless from and against any and all damages, liabilities, costs and expenses (including reasonable attorney's fees) which PivX incurs as a result of any claim based on any breach of any representation or warranty, covenant or agreement by Detto under this Agreement or any breach of this Agreement by Detto; provided: (i) that PivX promptly gives written notice of any claim to Detto; (ii) at Detto's expense, PivX provides reasonable assistance which Detto may reasonably request for the defense of the claim; and (iii) Detto has the right to control the defense or settlement of the claim, provided, however, that PivX shall have the right to participate in, but not control, any litigation for which indemnification is sought with counsel of its own choosing, at its own expense.
+
+5. TERM AND TERMINATION
+
+5.1 TERM OF AGREEMENT. The term of this Agreement shall commence on the Effective Date and continue for six (6) months.
+
+5.2 TERMINATION OF AGREEMENT. PivX may terminate this Agreement for convenience by giving at least thirty (30) days written notice of termination to Detto. This Agreement may be terminated by either party in the event of a material breach of this Agreement by the other party that is not cured within thirty (30) days of the other party's receipt of written notice of such breach. If a material breach is cured within a thirty (30) day cure period this Agreement shall remain in effect as if no material breach had occurred. This Agreement shall terminate automatically without notice and without further action by the other party in the event that the other party becomes insolvent, which means it becomes unable to pay its debts in the ordinary course of business as they come due, or makes an assignment of this Agreement for the benefit of creditors.
+
+5.3 EFFECT OF TERMINATION. Upon the expiration or termination of this Agreement:
+
+(a) Detto shall, within thirty (30) days, pay to PivX all amounts due hereunder, return to PivX all products and demonstration copies received from PivX, erase any and all of the foregoing from all computer memories and storage devices within Detto's possession or control and, if requested, provide PivX with a signed written statement that Detto has complied with the foregoing obligations. All rights and licenses granted by PivX hereunder shall terminate, provided such termination shall not result in the termination of Licenses for copies of Qwik-Fix Pro which already have been purchased by Third Parties in accordance with the provisions of this Agreement.
+
+(b) The following shall survive termination of this Agreement: Section 1.2, the last two sentences of Section 2.2, Sections 2.3 through and including 2.9, Section 3.6, Section 4, this Section 5 and Section 6. 5.4 LIMITATION OF LIABILITY UPON TERMINATION. In the event of termination in accordance with Section 5.1, PivX shall not be liable to Detto because of such termination for compensation, reimbursement or damages on account of the loss of prospective profits or anticipated sales or on account of expenditures, inventory, investments, leases or commitments in connection with the business or goodwill of Detto.
+
+6. GENERAL PROVISIONS
+
+6.1 CONFIDENTIALITY. By virtue of this Agreement, each party may have access to information that is confidential to the other ("Confidential Information"). Confidential Information shall include, but not be limited to, software, documentation, formulas, methods, know how, processes, designs, new products, developmental work, marketing requirements, marketing plans, customer names, prospective customer names, the terms and pricing under the Agreement, and any information clearly identified in writing at the time of disclosure as confidential. A party's Confidential Information shall not include information that (a) is or becomes a part of the public domain through no act or omission of the other party; or (b) is independently developed by the other party without
+
+                                       5
+
+use of or reference to the first party's Confidential Information. In the event, Confidential Information is required to be disclosed by law or other governmental authority, a party hereunder shall not be prohibited from disclosing such information by this Section provided that the responding party shall first have given prompt notice to the other party hereto and shall have made a reasonable effort to obtain a protective order restricting or limiting the disclosure of the Confidential Information to the extent possible.
+
+6.2 THIS AGREEMENT CONTROLS; MERGER; AMENDMENT; WAIVER. This Agreement and Exhibit A to this Agreement shall control Detto's distribution of Qwik-Fix Pro and Documentation. All different or additional terms or conditions in any Detto purchase order or similar document shall be null and void. This Agreement, including Exhibit A, constitutes the final, complete, and exclusive agreement between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous agreements. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing signed by both parties. The failure or delay by either party in exercising any right, power or remedy under this Agreement shall not operate as a waiver of any such right, power or remedy.
+
+
+
+
+
+6.3 NOTICES. All notices shall be given in writing and shall be considered effective when (a) personally delivered, (b) upon confirmed receipt if sent by electronic mail or facsimile; or (c) two (2) days after posting if sent by overnight registered private carrier (e.g. DHL, Federal Express, etc.).
+
+6.4 ASSIGNMENT. Detto may not assign any of its rights or delegate any of its obligations hereunder, whether by operation of law or otherwise, without PivX's prior written consent. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
+
+6.5 FORCE MAJEURE. PivX will not incur any liability to Detto or any other party on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement (except for payment obligations) to the extent such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control, and without the negligence of, the parties. Such events, occurrences, or causes include, without limitation, acts of God, telecommunications outages, Internet outages, power outages, strikes, lockouts, riots, acts of war, floods, earthquakes, fires, and explosions.
+
+6.6 GENERAL. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement shall remain in full force and effect. Detto is an independent contractor, and nothing herein shall be construed to create an employer-employee, partnership, joint venture, or agency relationship between the parties. Detto shall have no authority, right or power to create any obligation or responsibility on behalf of PivX.
+
+6.7 GOVERNING LAW. This Agreement shall be governed by and construed under the laws of the State of California, excluding conflict of laws provisions and excluding the 1980 United Nations Convention on Contracts for the International Sale of Goods. The parties consent to the personal and exclusive jurisdiction of and venue in the state and federal courts of Orange County, California, U.S.A. for any disputes arising out of this Agreement. This Agreement may be executed simultaneously in two or more counterparts, each one of which shall be deemed an original, but all of which shall constitute one and the same instrument.
+
+IN WITNESS WHEREOF, the following duly authorized representatives have signed this Agreement on behalf of the entities indicated below, as of the date first above written.
+
+DETTO                                     PIVX ----------------------------------------- --------------------------------------
+
+----------------------------------------- -------------------------------------- By:                                       By: ----------------------------------------- -------------------------------------- Title:                                    Title: ----------------------------------------- -------------------------------------- Date:                                     Date: ----------------------------------------- --------------------------------------
+
+                                       6

full_contract_txt/ADMA BioManufacturing, LLC - Amendment #3 to Manufacturing Agreement .txt

@@ -0,0 +1,43 @@
+Confidential treatment has been requested with respect to portions of this agreement as indicated by "[***]" and such confidential portions have been deleted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Amendment #3 to the Manufacturing Agreement This Amendment #3 to the Manufacturing Agreement (this "Amendment #3") is made effective as of December 21, 2017 ("Amendment Effective Date"), by and between ADMA BioManufacturing, LLC, a Delaware limited liability company, having a place of business at 5800 Park of Commerce Boulevard NW, Boca Raton, Florida 33487 USA ("ADMA") and Sanofi Pasteur S.A., a company existing and organized under the laws of France ("Sanofi Pasteur"), having its registered head office at 14, espace Henry Vallee, 69007, Lyon, France. WHEREAS, ADMA (as successor-in-interest to Biotest Pharmaceuticals Corporation ("BPC") and Sanofi Pasteur are parties to that certain Manufacturing Agreement, effective September 30, 2011, as previously amended (including by that certain Amendment #2 to the Manufacturing Agreement, effective as of August 1, 2016, by and between BPC and Sanofi Pasteur ("Amendment #2")) (the "Agreement") for the production of Rabies Fraction II Paste (the "Product," as further defined in the Agreement) for Sanofi Pasteur from human plasma containing rabies antibodies; WHEREAS, BPC and Sanofi Pasteur are Parties to that certain Plasma Supply Agreement, effective January 20, 2009, as amended (the "Plasma Supply Agreement"), for the production of human Rabies Hyperimmune Plasma ("Rabies Plasma") by BPC for Sanofi Pasteur to be used in the manufacturing of Rabies Immunoglobulin; WHEREAS, the Rabies Plasma manufactured by BPC under the Plasma Supply Agreement may be transferred to ADMA to be fractionated into Product under the Agreement; WHEREAS, ADMA and Sanofi Pasteur desire to further amend the Agreement in order to memorialize the amendment of certain provisions in the Agreement; NOW, THEREFORE, in consideration of the respective promises contained herein and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the Parties hereto agree as follows: 1. All capitalized terms used and not defined in this Amendment shall have the meaning as set out in the Agreement. 2. The supply terms set forth in Section 1 of Amendment #2 (the "Prior Supply Terms") are hereby deleted in their entirety. In their place, the Parties agree to the following (and Section 2.1 of the Agreement is hereby amended as needed to implement the following): Sanofi Pasteur agrees to purchase and ADMA to manufacture [***] Batches of Product, which Batches will be produced over a period from Q3 2018 to Q3 2019. Attached hereto as Exhibit A is a detailed supply plan provided to ADMA by Sanofi Pasteur (the "Updated Supply Plan") that describes the agreed-upon timing for production of such Batches of Product, which supply plan is made an integral part hereof and shall be binding on the Parties. Prices for such [***] Batches of Product shall be in accordance with Section 3.2 of the Agreement (as amended in Amendment #2).
+
+BPC Initials ___ Sanofi Pasteur Initials ___ 1
+
+
+
+
+
+Confidential treatment has been requested with respect to portions of this agreement as indicated by "[***]" and such confidential portions have been deleted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. The Parties agree to amend the Agreement to impose on ADMA an obligation to supply a minimum of [***] Batches of Product for that period stalling from Q4 2018 up to Q4 2019, as further specified in Exhibit A attached hereto. Should ADMA fail to supply a minimum of [***] Batches of Product (the "Minimum Volume") of Product during the time period as specified in this Amendment #3, ADMA agrees that Sanofi Pasteur shall be entitled to obtain from ADMA as liquidated damages, and not a penalty, amounting to $[***] ([***]) USD. ADMA accepts and declares that the amount of the liquidated damages is a fair and equitable compensation, and not a penalty, for such failure in reaching the volume commitment within the timelines agreed herein and in regard to the value and use of the Source Plasma. In addition to the Minimum Volume of Product to be manufactured by ADMA, should ADMA deliver the Minimum Volume of Product but fail to meet the Updated Supply Plan as provided in Exhibit A as attached hereto and made an integral part hereof, then it is agreed upon by the Parties that ADMA shall pay to Sanofi Pasteur an amount equal to $[***] ([***]) USD for each Batch of Product that is less than the agreed upon quantity in Exhibit A, as liquidated damages, and not as a penalty. The foregoing liquidated damages [***] respect to the [***] within the [***] agreed in this Amendment #3. [***] not be entitled to [***] by this Agreement as a result of [***], including without limitation [***]. Notwithstanding the foregoing, [***], sections 6.1 and 6.2 of the Agreement [***]. 3. Furthermore, should ADMA's compliance status under the FDA Warning Letter be escalated, and if such consequence limits ADMA's ability to supply the Batches of Product as specified in this Amendment #3 and the Updated Supply Plan or in case of failure by ADMA to supply any Batch of Product under this Amendment, Sanofi Pasteur shall be entitled to terminate immediately this Agreement upon written notice to ADMA and Sanofi Pasteur shall not be obligated to provide any additional payments (as outlined in Section 5 below and payments for any of the unproduced or delivered production batches) to ADMA from the date of such termination. In such a case, the remaining Source Plasma shall be immediately returned to Sanofi Pasteur, under ADMA's liability and expenses. Shipment of the Source Plasma to Sanofi Pasteur shall be made in compliance with the transportation conditions as provided in the Quality Agreement (as defined below), to be further amended by the Parties as contemplated in Section 9 below.
+
+BPC Initials ___ Sanofi Pasteur Initials ___ 2
+
+
+
+
+
+Confidential treatment has been requested with respect to portions of this agreement as indicated by "[***]" and such confidential portions have been deleted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. 4. In the event of a non-conformance in the Source Plasma at the time of delivery of the Source plasma at ADMA's place, or in the event of damaged Source Plasma, which non-conformance, damage or loss in the Source Plasma occurred prior to the transfer of risks in the Source Plasma to ADMA as per Section 7 below, it is agreed upon by the Parties that Sanofi Pasteur shall not be responsible, nor liable, to compensate or indemnify ADMA for the loss of business arising from the fact that, in such a case, the Source Plasma will no longer be manufactured by ADMA and consequently Sanofi Pasteur will not pay for the unproduced batch. 5. In consideration for certain quantities of Product that ADMA would have been contractually obligated to supply, and that Sanofi Pasteur would have been contractually obligated to purchase, under the Agreement, but that will now not be supplied and purchased as a result of the Parties' agreement in Section 2 above, Sanofi Pasteur agrees to pay ADMA an amount of seven million (7,000,000 USD) (the "Compensation Fee") in five installments and will be invoiced as follows: (a) [***] USD upon execution of this Amendment #3 (b) [***] USD on March 1, 2018 (c) [***] USD on June 1, 2018 (d) [***] USD on September 1, 2018 (e) [***] USD on December 1, 2018 Such payments shall be made in accordance with Section 3.4 of the Agreement; provided, however, that the initial payment described in Section 5(a) above shall be due no later than December 31,2017. Each invoice shall reference this Amendment 3 and shall be sent at the following address: Sanofi Pasteur SA DSFF Pole de Lyon - Carteret Tri C5-2-01 14 Espace Henry Vallee CS 90119 69361 LYON CEDEX 07 - FRANCE Upon payment of the Compensation Fee, ADMA shall be fully compensated for any kind of prejudice or damages ADMA may suffer arising from or related to the decrease in the quantities of Product Sanofi Pasteur committed to purchase initially from ADMA as per the Prior Supply Terms. ADMA declares that the Compensation Fee is fair and equitable. 6. Upon full payment of the Compensation Fee, each Party, with the intention of binding itself, its Affiliates, shareholders, successors and assigns, hereby releases, remises and forever discharges the other Party, and its Affiliates, employees, directors, shareholders, successors and assigns, from all actions, causes of action, suits, debts, dues, sums of money, accounts, covenants, contracts, controversies, agreements, promises, damages, claims and demands whatsoever, in law, contract or equity, arising directly out of, or relating to the Updated Supply Plan and/or the amount of the Compensation Fee Sanofi agrees to pay to ADMA.
+
+BPC Initials ___ Sanofi Pasteur Initials ___ 3
+
+
+
+
+
+Confidential treatment has been requested with respect to portions of this agreement as indicated by "[***]" and such confidential portions have been deleted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. 7. The Parties further agree to amend Section 6.5 of the Agreement as follows: (a) The liability cap set forth under section 6.5 is hereby amended to adapt to the provisions of this Amendment #3 and is therefore set at "[***]" instead of "[***]". (b) The last sentence of Section 6.5 of the Agreement is hereby deleted and replaced with the following: Unless Section 2.7 applies, and subject to any risk of loss assumed by BPC under the Plasma Agreement (as amended) or that certain [Termination, Settlement and Release Agreement] between BPC and Sanofi Pasteur, [of even date herewith], Sanofi Pasteur assumes all risk of loss for all Source Plasma (the "Sanofi Pasteur Property") while under storage conditions at BPC's warehouse except in case such loss occurs as a result of BPC negligence or willful misconduct, and Sanofi Pasteur hereby waives any and all rights of recovery against ADMA and its Affiliates, and against any of their respective directors, officers, employees, agents or representative, for any loss or damage to the Sanofi Pasteur Property while under storage conditions at BPC's warehouse. At such time that the Source Plasma is delivered to the ADMA loading dock located at 5800 Park of Commerce Blvd NW, Boca Raton, FL 33487, risk of loss for such delivered Source Plasma shall, as between Sanofi Pasteur and ADMA, transfer to ADMA. ADMA agrees to assume the risks of loss to the Sanofi Pasteur Property and shall reimburse Sanofi Pasteur, at the dollar value, the Source Plasma in case of damage or loss. In consideration of the foregoing, Section 6.5 is deleted in its entirety and replaced by the following: 6.5 Limitation of Liability: In no event shall either party be liable to the other party for incidental, indirect, special and consequential or punitive damages, including without limitation any claims for damages based upon lost profits or lost business opportunity. Except for the obligation of indemnity as set forth in Section 6.1 (c) with respect to claims by third parties for personal injury, illness or death (but not including property damage) resulting from the manufacture of the Product by BPC, aggregate damages for which ADMA shall be liable to Sanofi Pasteur hereunder, including without limitation costs of Source Plasma yield loss and/or rejected Batches, shall not exceed [***]. All claims by Sanofi Pasteur for breach or default under this Agreement shall be brought within [***] year after the cause of action comes into existence or otherwise shall be waived. This limitation of liability will not apply for damages that result from the gross negligence or the willful misconduct of a Party.
+
+BPC Initials ___ Sanofi Pasteur Initials ___ 4
+
+
+
+
+
+Confidential treatment has been requested with respect to portions of this agreement as indicated by "[***]" and such confidential portions have been deleted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Furthermore, unless Section 2.7 applies, and subject to any risk of loss assumed by BPC under the Plasma Agreement (as amended) or that certain [Termination, Settlement and Release Agreement] between BPC and Sanofi Pasteur, [of even date herewith], Sanofi Pasteur assumes all risk of loss for all Source Plasma (the "Sanofi Pasteur Property") while under storage conditions at BPC's warehouse except in case such loss occurs as a result of BPC negligence or willful misconduct, and Sanofi Pasteur hereby waives any and all rights of recovery against ADMA and its Affiliates, and against any of their respective directors, officers, employees, agents or representative, for any loss or damage to the Sanofi Pasteur Property while under storage conditions at BPC's warehouse. At such time that the Source Plasma is delivered to the ADMA loading dock located at 5800 Park of Commerce Blvd NW, Boca Raton, FL 33487, risk of loss for such delivered Source Plasma shall, as between Sanofi Pasteur and ADMA, transfer to ADMA. ADMA agrees to assume the risks of loss to the Sanofi Pasteur Property and shall reimburse Sanofi Pasteur, at the dollar value, the Source Plasma in case of damage or loss. 8. The Parties further agree to amend that certain Quality and Technical Agreement between Sanofi Pasteur and ADMA (as successor to BPC) effective as of September 15, 2015 (the "Quality Agreement") to modify the address where the Source Plasma shall be stocked and the conditions associated therewith, as well as to ensure consistency with the other terms of this Amendment. The Parties shall use best efforts to complete such amendment to the Quality Agreement within 60 days after the Amendment Effective Date. 9. All other terms of the Agreement shall remain in full force and effect except to the extent superseded by the terms of this Amendment #3. IN WITNESS WHEREOF, the parties hereby have caused this Amendment #3 to the Agreement to be executed and the persons signing below warrant that they are duly authorized to sign for and on behalf of their respective Parties. Made in two original copies. Sanofi Pasteur, S.A. By:/s/ Vincent Hingot Name: Vincent Hingot Title: Senior Vice President Industrial Affairs Date: 22 Dec. 2017
+
+ADMA BioManufacturing, LLC By: /s/ Adam Grossman Name: Adam Grossman Title: President & CEO Date: 12-21-2017
+
+BPC Initials ___ Sanofi Pasteur Initials ___ 5
+
+
+
+
+
+Confidential treatment has been requested with respect to portions of this agreement as indicated by "[***]" and such confidential portions have been deleted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Exhibit A [***] ADMA Initials ___ Sanofi Pasteur Initials ___ A-1

full_contract_txt/ADUROBIOTECH,INC_06_02_2020-EX-10.7-CONSULTING AGREEMENT(1).txt

@@ -0,0 +1,63 @@
+Exhibit 10.7
+
+CONSULTING AGREEMENT
+
+Aduro Biotech, Inc., with a place of business at 740 Heinz Avenue, Berkeley, CA 94710 ("Aduro") and IREYA B.V having an address at Staalwijkstraat 16, 2313 XR Leiden, the Netherlands, represented by Andrea van Elsas, ("Consultant") agree to all terms and conditions of this Consulting Agreement ("Agreement") dated June 1, 2020, effective as of July 1, 2020 ("Effective Date").
+
+1. Services. At the request and direction of Aduro and the agreement of Consultant, Consultant will provide advice and consultation to Aduro with respect to its research, clinical development programs and other business matters as requested by Aduro from time to time.
+
+2. Compensation and Expenses. Aduro shall pay Consultant for the Services at the rate of €500 per hour. On a monthly basis, Consultant shall submit to Aduro an invoice for the hours worked along with itemized documentation and receipts and other information for pre-approved travel and/or out-of- pocket expenses as Aduro reasonably requests at the time reimbursement is requested. Consultant will not incur any travel and/or other out-of-pocket expenses of more than €5,000 individually or €20,000 in the aggregate without the prior written consent of Aduro. Aduro shall pay Consultant any amounts due that are not reasonably disputed by Aduro, by check or direct bank deposit, within thirty days after receiving the invoice. Consultant's sole compensation for the Services shall be the amounts set forth above in this Section 2. Invoices shall be sent to the attention of:
+
+[email protected] Attn: Accounts Payable
+
+3. Term of Agreement. This Agreement shall begin on the Effective Date and shall continue until December 31, 2020, unless extended or earlier terminated. Either party may terminate this Agreement at any time on prior written notice to the other. This Agreement may be extended upon mutual written agreement of the parties.
+
+4. Confidential Information.
+
+(a) "Confidential Information" means any information, materials or methods in whatever form or embodiment that has not been made available by Aduro to the general public and any information, materials or methods in the possession or control of Consultant on the Effective Date or developed in the performance of the Services, except that Confidential Information shall not include any information, material or method that (i) at the time of disclosure is in, or after disclosure becomes part of the public domain, through no improper act on the part of Consultant or any of its employees; (ii) was in Consultant's possession at the time of disclosure, as shown by written evidence, and was not acquired, directly or indirectly, from work with Aduro; or (iii) Consultant receives from a third party, provided that such Confidential Information was not obtained by such third party, directly or indirectly, from Aduro.
+
+Specific information disclosed as part of the Confidential Information shall not be deemed to be in the public domain or in the prior possession of Consultant merely because it is encompassed or contemplated by more general information in the public domain or in the prior possession of the Consultant. Failure to mark any of the Confidential Information as confidential or proprietary shall not affect its status as Confidential Information under the terms of this Agreement.
+
+
+
+
+
+(b) Consultant shall keep all Confidential Information confidential, and Consultant shall not disclose, disseminate, publish, reproduce or use Confidential Information except to perform the Services. If Consultant is required by judicial or administrative process to disclose Confidential Information, Consultant shall promptly notify Aduro to allow Aduro a reasonable time to oppose such process and Consultant shall reasonably cooperate in Aduro's efforts.
+
+(c) On Aduro's request, or upon the termination or expiration of this Agreement, Consultant shall immediately: (i) stop using Confidential Information; (ii) return all materials provided by Aduro to Consultant that contain Confidential Information, except for one copy that may be retained by Consultant's legal counsel to confirm compliance with the obligations under this Agreement; (iii) destroy all copies of Confidential Information in any form including Confidential Information contained in computer memory or data storage apparatus or materials prepared by or for Consultant; and (iv) provide a written warranty to Aduro that Consultant has taken all the actions described in the foregoing Subparagraphs 4(c)(i-iii).
+
+(d) Any breach of this Paragraph 4 by an employee or agent of Consultant shall be deemed to be a breach by Consultant.
+
+(e) Defend Trade Secrets Act Notice: Nothing herein shall prevent Consultant from reporting possible violations of federal or state law or regulation to any governmental agency or entity, or making other disclosures that are protected under the whistleblower provisions of federal or state law or regulation. Consultant does not need the prior authorization of Aduro to make any such reports or disclosures and is not required to notify Aduro that it has made such reports or disclosures. In addition, as set forth in 18 U.S.C. §1833(b), Consultant shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made in confidence to a federal, state or local government official, either directly or indirectly, or to an attorney, and that is made solely for the purpose of reporting or investigating a suspected violation of law, or that is made in a complaint or other document filed in a lawsuit or other proceeding if such filing is made under seal.
+
+5. Independent Contractor. Consultant's relationship to Aduro shall be that of an independent contractor. Consultant shall be responsible for the timely payment of his or her own self-employment and income taxes. Neither party shall have any authority to bind the other.
+
+6. Intellectual Property. Aduro shall be the sole and exclusive owner of, and Consultant hereby assigns to Aduro, any and all writings, documents, work product, inventions, developments, improvements, discoveries, know-how, processes, chemical entities, compounds, plans, memoranda, tests, research, designs, specifications, models and data that Consultant makes, conceives, discovers or develops, either solely or jointly with any other person in performance of the Services (collectively, "Work Product"). Consultant shall promptly disclose to Aduro all information relating to Work Product as appropriate as part of the Services and at the request of Aduro. To the extent, if any, that Consultant has rights in or to any Work Product or any data or inventions developed in connection with work under this Agreement ("Aduro IP"), Consultant hereby irrevocably assigns and transfers to Aduro, and to the extent that an executory assignment is not enforceable, Consultant hereby agrees to assign and transfer to Aduro, in writing, from time to time, upon request, any and all right, title, or interest that Consultant has or may obtain in any Work Product and/or Aduro IP without the necessity of further consideration. Aduro shall be entitled to obtain and hold in its own name all copyrights, patents, trade secrets and trademarks with respect thereto. At Aduro's request and expense, Consultant shall assist Aduro in acquiring and maintaining its right in and title to, any Work Product. Such assistance may include, but will not be limited to, signing applications and other documents, cooperating in legal proceedings, and taking any other steps considered necessary or desirable by Aduro.
+
+
+
+
+
+7. Nonsolicitation. From the Effective Date and for twelve (12) months after the termination of this Agreement (the "Restricted Period"), Consultant shall not, without Aduro's prior written consent, directly or indirectly, solicit or encourage any employee or contractor of Aduro or its affiliates to terminate employment with, or cease providing Services to, Aduro or its affiliates. In the event of a breach of this Paragraph 7 by Consultant, Aduro shall be entitled to entry of injunctive relief. Such injunctive remedy shall be nonexclusive and shall be in addition to any and all other remedies which may be available to it at law or in equity, including without limitation, the recovery of direct, indirect, incidental, consequential and/or punitive damages.
+
+8. Representations. Consultant represents as follows:
+
+(a) Consultant is not subject to any other agreement that Consultant will violate by signing this Agreement;
+
+(b) Consultant has and shall continue to have the knowledge, experience, qualifications and required skill to perform, and shall perform, the Services in a professional manner;
+
+(c) Consultant to perform the Services in accordance with all Applicable Law; and
+
+(d) During the term of this Agreement, Consultant will not, directly or indirectly (whether for compensation or without compensation) engage in or provide consulting services, or enter into any agreement either written or oral, that would present a material conflict with any of the provisions of this Agreement, or would preclude Consultant from complying with the terms and conditions hereof. If during the term of this Agreement any situation or circumstance arises that might reasonably be expected to present a conflict of interest, or if Consultant might be unable to render Services or otherwise participate in such work without risk of breaching an obligation of confidentiality to another party, Consultant will promptly advise the Company's General Counsel of the situation and Company and Consultant shall, in good faith, attempt to resolve any such conflicts(s). If requested by the Company's General Counsel, Consultant will recuse herself from providing Services for the duration of the conflict.
+
+9. Material Non-Public Information. Consultant may have access to, or learn, "material non-public information" about Aduro or companies working with Aduro during the course of performing Services under this Agreement. Consultant acknowledges that it is illegal to buy or sell Aduro's stock or the stock of companies working with Aduro, on the basis of "material non-public information." It is also illegal to pass such information on to others who use it to buy or sell Aduro stock. Consultant is subject to and will comply with Aduro's Insider Trading and Trading Window Policy.
+
+10. Miscellaneous. This Agreement shall be construed and enforced in accordance with the laws of the State of California, without regard to the conflict of law principles of California or any other jurisdiction. This Agreement contains the entire agreement and understanding of the parties relating to the subject matter hereof and merges and supersedes all prior discussions, agreements and understandings of every nature between them with respect to the subject matter hereof. For the avoidance of doubt, this Agreement does not supersede or in modify in anyway any other written agreement between the parties. This Agreement may not be changed or modified, except by an agreement in writing signed by both of the parties hereto. The obligations of Consultant as set forth herein, other than Consultant's obligations to perform the Project, shall survive the termination of Consultant's engagement with Aduro. If any provision of this Agreement is found to be illegal or unenforceable, the other provisions of this Agreement shall remain effective and enforceable to the greatest extent permitted by law. This Agreement shall not be assignable by Consultant. This Agreement may be executed in any number of counterparts, and each such counterpart shall be deemed to be an original instrument, but all such counterparts together shall constitute but one agreement.
+
+
+
+
+
+ADURO BIOTECH, INC. CONSULTANT
+
+By: /s/ Stephen T. Isaacs By: /s/ Andrea van Elsas Name: Stephen T. Isaacs Name: Andrea van Elsas Title: President and Chief Executive Officer Title: Chief Scientific Officer

full_contract_txt/ADUROBIOTECH,INC_06_02_2020-EX-10.7-CONSULTING AGREEMENT.txt

@@ -0,0 +1,63 @@
+Exhibit 10.7
+
+CONSULTING AGREEMENT
+
+Aduro Biotech, Inc., with a place of business at 740 Heinz Avenue, Berkeley, CA 94710 ("Aduro") and IREYA B.V having an address at Staalwijkstraat 16, 2313 XR Leiden, the Netherlands, represented by Andrea van Elsas, ("Consultant") agree to all terms and conditions of this Consulting Agreement ("Agreement") dated June 1, 2020, effective as of July 1, 2020 ("Effective Date").
+
+1. Services. At the request and direction of Aduro and the agreement of Consultant, Consultant will provide advice and consultation to Aduro with respect to its research, clinical development programs and other business matters as requested by Aduro from time to time.
+
+2. Compensation and Expenses. Aduro shall pay Consultant for the Services at the rate of €500 per hour. On a monthly basis, Consultant shall submit to Aduro an invoice for the hours worked along with itemized documentation and receipts and other information for pre-approved travel and/or out-of- pocket expenses as Aduro reasonably requests at the time reimbursement is requested. Consultant will not incur any travel and/or other out-of-pocket expenses of more than €5,000 individually or €20,000 in the aggregate without the prior written consent of Aduro. Aduro shall pay Consultant any amounts due that are not reasonably disputed by Aduro, by check or direct bank deposit, within thirty days after receiving the invoice. Consultant's sole compensation for the Services shall be the amounts set forth above in this Section 2. Invoices shall be sent to the attention of:
+
+[email protected] Attn: Accounts Payable
+
+3. Term of Agreement. This Agreement shall begin on the Effective Date and shall continue until December 31, 2020, unless extended or earlier terminated. Either party may terminate this Agreement at any time on prior written notice to the other. This Agreement may be extended upon mutual written agreement of the parties.
+
+4. Confidential Information.
+
+(a) "Confidential Information" means any information, materials or methods in whatever form or embodiment that has not been made available by Aduro to the general public and any information, materials or methods in the possession or control of Consultant on the Effective Date or developed in the performance of the Services, except that Confidential Information shall not include any information, material or method that (i) at the time of disclosure is in, or after disclosure becomes part of the public domain, through no improper act on the part of Consultant or any of its employees; (ii) was in Consultant's possession at the time of disclosure, as shown by written evidence, and was not acquired, directly or indirectly, from work with Aduro; or (iii) Consultant receives from a third party, provided that such Confidential Information was not obtained by such third party, directly or indirectly, from Aduro.
+
+Specific information disclosed as part of the Confidential Information shall not be deemed to be in the public domain or in the prior possession of Consultant merely because it is encompassed or contemplated by more general information in the public domain or in the prior possession of the Consultant. Failure to mark any of the Confidential Information as confidential or proprietary shall not affect its status as Confidential Information under the terms of this Agreement.
+
+
+
+
+
+(b) Consultant shall keep all Confidential Information confidential, and Consultant shall not disclose, disseminate, publish, reproduce or use Confidential Information except to perform the Services. If Consultant is required by judicial or administrative process to disclose Confidential Information, Consultant shall promptly notify Aduro to allow Aduro a reasonable time to oppose such process and Consultant shall reasonably cooperate in Aduro's efforts.
+
+(c) On Aduro's request, or upon the termination or expiration of this Agreement, Consultant shall immediately: (i) stop using Confidential Information; (ii) return all materials provided by Aduro to Consultant that contain Confidential Information, except for one copy that may be retained by Consultant's legal counsel to confirm compliance with the obligations under this Agreement; (iii) destroy all copies of Confidential Information in any form including Confidential Information contained in computer memory or data storage apparatus or materials prepared by or for Consultant; and (iv) provide a written warranty to Aduro that Consultant has taken all the actions described in the foregoing Subparagraphs 4(c)(i-iii).
+
+(d) Any breach of this Paragraph 4 by an employee or agent of Consultant shall be deemed to be a breach by Consultant.
+
+(e) Defend Trade Secrets Act Notice: Nothing herein shall prevent Consultant from reporting possible violations of federal or state law or regulation to any governmental agency or entity, or making other disclosures that are protected under the whistleblower provisions of federal or state law or regulation. Consultant does not need the prior authorization of Aduro to make any such reports or disclosures and is not required to notify Aduro that it has made such reports or disclosures. In addition, as set forth in 18 U.S.C. §1833(b), Consultant shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made in confidence to a federal, state or local government official, either directly or indirectly, or to an attorney, and that is made solely for the purpose of reporting or investigating a suspected violation of law, or that is made in a complaint or other document filed in a lawsuit or other proceeding if such filing is made under seal.
+
+5. Independent Contractor. Consultant's relationship to Aduro shall be that of an independent contractor. Consultant shall be responsible for the timely payment of his or her own self-employment and income taxes. Neither party shall have any authority to bind the other.
+
+6. Intellectual Property. Aduro shall be the sole and exclusive owner of, and Consultant hereby assigns to Aduro, any and all writings, documents, work product, inventions, developments, improvements, discoveries, know-how, processes, chemical entities, compounds, plans, memoranda, tests, research, designs, specifications, models and data that Consultant makes, conceives, discovers or develops, either solely or jointly with any other person in performance of the Services (collectively, "Work Product"). Consultant shall promptly disclose to Aduro all information relating to Work Product as appropriate as part of the Services and at the request of Aduro. To the extent, if any, that Consultant has rights in or to any Work Product or any data or inventions developed in connection with work under this Agreement ("Aduro IP"), Consultant hereby irrevocably assigns and transfers to Aduro, and to the extent that an executory assignment is not enforceable, Consultant hereby agrees to assign and transfer to Aduro, in writing, from time to time, upon request, any and all right, title, or interest that Consultant has or may obtain in any Work Product and/or Aduro IP without the necessity of further consideration. Aduro shall be entitled to obtain and hold in its own name all copyrights, patents, trade secrets and trademarks with respect thereto. At Aduro's request and expense, Consultant shall assist Aduro in acquiring and maintaining its right in and title to, any Work Product. Such assistance may include, but will not be limited to, signing applications and other documents, cooperating in legal proceedings, and taking any other steps considered necessary or desirable by Aduro.
+
+
+
+
+
+7. Nonsolicitation. From the Effective Date and for twelve (12) months after the termination of this Agreement (the "Restricted Period"), Consultant shall not, without Aduro's prior written consent, directly or indirectly, solicit or encourage any employee or contractor of Aduro or its affiliates to terminate employment with, or cease providing Services to, Aduro or its affiliates. In the event of a breach of this Paragraph 7 by Consultant, Aduro shall be entitled to entry of injunctive relief. Such injunctive remedy shall be nonexclusive and shall be in addition to any and all other remedies which may be available to it at law or in equity, including without limitation, the recovery of direct, indirect, incidental, consequential and/or punitive damages.
+
+8. Representations. Consultant represents as follows:
+
+(a) Consultant is not subject to any other agreement that Consultant will violate by signing this Agreement;
+
+(b) Consultant has and shall continue to have the knowledge, experience, qualifications and required skill to perform, and shall perform, the Services in a professional manner;
+
+(c) Consultant to perform the Services in accordance with all Applicable Law; and
+
+(d) During the term of this Agreement, Consultant will not, directly or indirectly (whether for compensation or without compensation) engage in or provide consulting services, or enter into any agreement either written or oral, that would present a material conflict with any of the provisions of this Agreement, or would preclude Consultant from complying with the terms and conditions hereof. If during the term of this Agreement any situation or circumstance arises that might reasonably be expected to present a conflict of interest, or if Consultant might be unable to render Services or otherwise participate in such work without risk of breaching an obligation of confidentiality to another party, Consultant will promptly advise the Company's General Counsel of the situation and Company and Consultant shall, in good faith, attempt to resolve any such conflicts(s). If requested by the Company's General Counsel, Consultant will recuse herself from providing Services for the duration of the conflict.
+
+9. Material Non-Public Information. Consultant may have access to, or learn, "material non-public information" about Aduro or companies working with Aduro during the course of performing Services under this Agreement. Consultant acknowledges that it is illegal to buy or sell Aduro's stock or the stock of companies working with Aduro, on the basis of "material non-public information." It is also illegal to pass such information on to others who use it to buy or sell Aduro stock. Consultant is subject to and will comply with Aduro's Insider Trading and Trading Window Policy.
+
+10. Miscellaneous. This Agreement shall be construed and enforced in accordance with the laws of the State of California, without regard to the conflict of law principles of California or any other jurisdiction. This Agreement contains the entire agreement and understanding of the parties relating to the subject matter hereof and merges and supersedes all prior discussions, agreements and understandings of every nature between them with respect to the subject matter hereof. For the avoidance of doubt, this Agreement does not supersede or in modify in anyway any other written agreement between the parties. This Agreement may not be changed or modified, except by an agreement in writing signed by both of the parties hereto. The obligations of Consultant as set forth herein, other than Consultant's obligations to perform the Project, shall survive the termination of Consultant's engagement with Aduro. If any provision of this Agreement is found to be illegal or unenforceable, the other provisions of this Agreement shall remain effective and enforceable to the greatest extent permitted by law. This Agreement shall not be assignable by Consultant. This Agreement may be executed in any number of counterparts, and each such counterpart shall be deemed to be an original instrument, but all such counterparts together shall constitute but one agreement.
+
+
+
+
+
+ADURO BIOTECH, INC. CONSULTANT
+
+By: /s/ Stephen T. Isaacs By: /s/ Andrea van Elsas Name: Stephen T. Isaacs Name: Andrea van Elsas Title: President and Chief Executive Officer Title: Chief Scientific Officer

full_contract_txt/AIRSPANNETWORKSINC_04_11_2000-EX-10.5-Distributor Agreement.txt

@@ -0,0 +1,543 @@
+Exhibit 10.5
+
+Note: Portions of this exhibit indicated by"[*]" are subject to a confidential treatment request, and have been omitted from this exhibit. Complete, unredacted copies of this exhibit have been filed with the Securities and Exchange Commission as part of this Company's confidential treatment request.
+
+Distributor Agreement                              ---------------------
+
+This Distributor Agreement (the "Agreement") is made effective as of the 31st day of March, 2000 (the "Effective Date"), by and between Airspan Networks Incorporated, a company incorporated under the laws of the State of Washington having its principal office at 777 108th Avenue NE, Suite 1895, Bellevue, Washington 98004 ("Airspan") and GLS LLC, ("Distributor") a limited liability company incorporated under the laws of the State of South Dakota having its principal office at 501 Fourth Street, Sergeant Bluff, IA 51054.
+
+WITNESSETH:
+
+WHEREAS, Airspan is engaged in the design and manufacture of various telecommunications product lines, including, among others, those product lines more completely described in Schedule I hereto (the product lines described in Schedule I, as from time to time amended in accordance with the provisions of this Agreement, are hereinafter called the "Airspan Products") the hardware components thereof are sometimes referred to separately as "Equipment," the software components thereof are sometimes referred to separately as "Software" as defined in Section 11.1, and an arrangement of Equipment which, when interfaced with Software, is operable to perform predetermined functions, is referred to as a "System");
+
+WHEREAS, Distributor is engaged in the promotion of sales of telecommunications products; and
+
+WHEREAS, Airspan desires to appoint Distributor as a Distributor for the Airspan Products for the territory described in Schedule II hereto (the "Territory").
+
+NOW, THEREFORE, in consideration of the mutual promises herein contained, it is hereby agreed as follows:
+
+1.   APPOINTMENT.      -----------
+
+1.1  Subject to the provisions of this Agreement, Airspan hereby appoints Distributor as an independent, exclusive distributor to assist Airspan in marketing the Airspan Products to customers in the Territory, and Distributor hereby accepts such appointment as of the Effective Date of this Agreement. Distributor's appointment as a distributor of the Airspan Products grants to Distributor only a license to resell the
+
+- -------------------------------------------------------------------------------
+
+Page 1
+
+Airspan Products to Distributor's customers in the Territory, and does not transfer any right, title, or interest in any of the Airspan Software to Distributor.
+
+1.2  Distributor's relationship to Airspan is that of an independent contractor, and nothing in this Agreement shall constitute Distributor as the agent or employee of Airspan.  Distributor shall have no authority to accept any order or make any offer (except as herein stated), or execute any instrument or make any commitment on behalf of Airspan.  Specifically, without in any way limiting the generality of the foregoing, Distributor agrees not to make any representation, guarantee, or warranty on Airspan's behalf concerning the Airspan Products, but will refer customers to Airspan's printed literature. Nothing contained in this Agreement is to be construed as a limitation or restriction upon Airspan in the sale or other disposition of any of its products to any person, firm, or corporation inside or outside of the Territory. Airspan will pay no commissions under this Agreement.  Distributor's compensation is to be obtained solely by the difference between the price Distributor pays to Airspan and the price Distributor charges its customers. The parties also acknowledge that this Agreement is not intended to create a joint venture or partnership between Airspan and Distributor.
+
+1.3  Distributor will use its best efforts to maintain and support the Airspan Products within the Territory by devoting such attention, time, and effort as may be reasonably necessary to fully develop the available market potential.  During the term of this Agreement, and for a period of three (3) months following the expiration or termination of this Agreement, Distributor agrees that neither it nor any organization or entity controlled or directed by it will, without Airspan's prior, written consent, represent a manufacturer or supplier of products similar in design or performance to or which are of such a nature as to be competitive with any products contained in the Airspan Products, nor will Distributor market or otherwise promote the sale of such products. Distributor will give Airspan thirty (30) days' prior, written notice of each new potential representation role being considered by Distributor, and Distributor will not undertake such representation without Airspan's prior, written consent, such consent not to be unreasonably withheld. Except as
+
+
+
+
+
+provided above, in no event will Airspan consent to Distributor's consultation for or representation of a manufacturer or supplier, which is directly or indirectly, a competitor of Airspan.
+
+1.4  Distributor shall maintain a place of business at the location specified in Section 21.10 where Distributor can be contacted by Airspan, customers, and prospective customers during regular business hours with a permanent mailing address and an accessible cellular telephone, and will provide Airspan with written notice promptly upon any change in address.  Distributor agrees to assume all of the expenses of this place of business, including rent, stenographic services, and all other expenses except as specifically assumed in writing by Airspan.
+
+- --------------------------------------------------------------------------------
+
+Page 2
+
+1.5  Airspan will provide Distributor with such commercial and technical assistance and training as may reasonably be necessary, in Airspan's sole judgment, to enable Distributor to effectively carry out its activities under this Agreement and, in connection therewith, to provide such sales promotional materials, as Airspan may deem appropriate.  Airspan will provide such technical support as is reasonable and necessary to maintain the product line as a viable competitor in the market.
+
+2.  REPRESENTATIONS AND WARRANTIES.
+
+Distributor hereby represents and warrants as follows:
+
+a.   Distributor has been duly registered in accordance with any and all relevant legislation, has received any and all necessary governmental authorizations to enter into and perform its obligations under this Agreement, and that its entry into and performance under this Agreement will not violate applicable legislation;
+
+b.   Distributor is duly registered with all necessary tax authorities and is in compliance with all payment obligations in accordance with applicable legislation.  No claims against or investigations of Distributor with respect to its tax obligations exist;
+
+c.   Distributor is not currently involved in any litigation, arbitration, or other legal proceedings in which claims are being asserted against Distributor which might affect its ability to perform its obligations under this Agreement, nor is Distributor aware of any unasserted claims against Distributor of this nature; and
+
+d.   Distributor's bank accounts have been established and operated in accordance with applicable legislation.  All transactions of Distributor required to be carried out through authorized banks have been so carried out. Distributor is not, has not, and warrants that it will not breach any currency regulation or currency control legislation.  Distributor further warrants that it is not, has not, and will not breach any bank secrecy act, rules or regulations.
+
+3.  SERVICES.
+
+3.1  In addition to the above, the Distributor will perform the following      services under this Agreement:
+
+a. In cooperation with Airspan, identify potential customers and project      opportunities within the Territory that will lead to sales/licenses of      Airspan Products and services;
+
+b. Prepare reports on the opportunities that will include:  (1) description      of the project; (2) assessment of the appropriate fit to Airspan Products      and
+
+- --------------------------------------------------------------------------------
+
+Page 3
+
+services; (3) dollar size and timing of the project; (4) competitive      assessment; and (5) identification of key decision makers and other      technical and commercial contacts;
+
+c. Assist and advise Airspan in the preparation and delivery of appropriate      marketing and sales programs;
+
+d. Initiate and coordinate meetings at all levels for the appropriate      Airspan employees to evaluate the identified projects;
+
+e. Initiate and assist in the preparation of sales and technical meetings      with customers, and where appropriate, attend these meetings with Airspan      personnel and provide administrative support and translation services;
+
+3.2  Distributor will use its best efforts to vigorously and aggressively      promote the sale of Airspan Products within the Territory.  Such efforts      shall include, but shall not be limited to, that advertising within the      Territory which is reasonably necessary.  All such advertising shall follow      the general statements made in advertising prepared by Airspan.  All      advertising shall contain a prominent reference to Airspan, indicating the      actual commercial origin of Airspan Products so advertised.  Distributor      shall not make any claims in its advertising which exceed or contradict
+
+
+
+
+
+claims made by Airspan in its printed materials.
+
+3.3  Distributor will train and maintain a sufficient number of technical      and sales personnel in order to: (a) serve the demands and needs of its      customers for Airspan Products, service, and support; and (b) carry out the      obligations of Distributor under this Agreement.
+
+3.4  Distributor and its staff will be conversant with the technical      language related to Airspan Products and will develop sufficient knowledge      of the industry, Airspan Products, and products competitive with Airspan      Products (including specifications, features, and benefits) so as to be      able to explain in detail to customers the differences between Airspan      Products and competitive products.  Distributor will conduct or provide for      any training of its personnel which may be necessary to impart such      knowledge.
+
+3.5  Distributor and its staff will research the technical requirements and      specifications of the market for Airspan Products in the Territory and make      information known to Airspan such that Airspan may, at its discretion,      implement appropriate technical changes to the Products to enable them to      be sold in the Territory. Airspan acknowledges that, subject to a further      and separate Agreement, such changes may be implemented in the future by      Distributor, with the assistance of Airspan.
+
+- ------------------------------------------------------------------------------
+
+Page 4
+
+3.6  Distributor agrees to purchase and stock a comprehensive inventory of      spare parts based upon the recommended list set forth in Schedule III to      this Agreement.
+
+3.7  Distributor agrees to provide to its customers' installation services      for all Airspan Products.  All such installation services shall be      performed by Distributor in accordance with Airspan's latest installation      standards as provided by Airspan.
+
+3.8  Distributor agrees to train and have readily available a maintenance      staff to efficiently and expeditiously maintain or upgrade all Airspan      Products purchased or licensed by Distributor from Airspan.  Maintenance      shall be performed in accordance with Airspan's latest maintenance      standards for Airspan Products, as provided by Airspan, by Distributor's      own personnel and may not be subcontracted or delegated to any other person      or entity without Airspan's prior, written authorization.
+
+3.9  Distributor agrees to provide and maintain those facilities adequate      to meet the obligations set forth in this section and of the Agreement.      Distributor further agrees to provide all of the sales and support      functions set forth in this section at no charge to Airspan.
+
+3.10 Distributor agrees not to actively seek to promote, rent, lease, sell,      sublicense or authorize the rental, sale or sublicense of Airspan Products      outside of the Territory [without the prior written approval of Airspan],      but nothing in this Agreement shall prevent Distributor from renting,      selling or sublicensing the Airspan Products to customers outside of the      Territory in response to an unsolicited request from such customer.
+
+3.11 During the term of this Agreement Distributor agrees that neither it      nor any organization or entity controlled or directed by it will, without      Airspan's prior, written consent, represent a manufacturer or supplier of      products similar in design or performance to or which are of such a nature      as to be competitive with any products contained in the Airspan Products.
+
+3.12 The parties mutually agree that by April 30, 2000, the parties will      negotiate and execute a National Accounts Consulting Agreement whereby the      Distributor will receive consulting fees and commissions for the sale and      deployment of Airspan's products on a national basis. It is the intent of      the parties to jointly pursue the sale of products to said companies and to      enter into and complete contracts for the deployment of products in this      manner.
+
+- --------------------------------------------------------------------------------
+
+Page 5
+
+4.   ORDERING PROCEDURE.
+
+4.1  The following procedures shall be followed with respect to each      purchase order issued by Distributor:
+
+a. During the Term, Distributor will inform Airspan of its intent to      purchase Equipment and Installation Services (but only if Airspan expressly      agrees to perform such Installation Services) and to license Software, by      sending to Airspan a written order.  This written order (the "Purchase      Order") will state the type of Equipment, System, or Installation Services      that Distributor wants to purchase and the Software Distributor wants to      license, the price of the ordered items (the "Contract Price") as set forth      in Schedule IV, "Price List" (which is hereby incorporated by reference)      and the proposed delivery and installation dates, if applicable.
+
+b. Each Purchase Order shall specifically incorporate by reference the      terms and conditions of this Agreement, and no additional or different      terms and conditions stated in a Purchase Order, any letter, or otherwise
+
+
+
+
+
+shall be binding unless expressly referred and agreed to by Airspan in      writing. In the event of a conflict between the terms and conditions of      this Agreement and of any Purchase Order issued hereunder, or if the      Purchase Order does not reference the terms and conditions of this      Agreement, the terms and conditions of this Agreement shall control.
+
+4.2  If a Purchase Order is accepted by Airspan, Airspan will issue an      order acknowledgment to Distributor within five (5) business days of      Airspan's receipt of the written Purchase Order from Distributor.
+
+5.   RECORDS AND REPORTING.
+
+5.1  At Airspan's request, within fifteen (15) days of the end of each      calendar month, Distributor will provide to Airspan a written report      showing, for the just-ended calendar month: (a) Distributor's shipments of      Airspan Products by dollar volume, both in the aggregate and for such      categories as Airspan may designate from time to time; (b) forecasts of      Distributor's anticipated orders by product; (c) Distributor's current      inventory levels of Airspan Products, in the aggregate and by product; and      (d) any other information which Airspan may reasonably request.
+
+5.2  Distributor will promptly advise Airspan concerning any market      information which comes to Distributor's attention regarding Airspan,      Airspan Products, Airspan's market position, or the continued      competitiveness of Airspan Products in the marketplace.  Distributor will      confer with Airspan from
+
+- --------------------------------------------------------------------------------
+
+Page 6
+
+time to time, at Airspan's request, on matters relating to market      conditions, distribution forecasting, and product planning.
+
+5.3  For at least two (2) years after termination of this Agreement,      Distributor will maintain its records, contracts, and accounts relating to      distribution of Airspan Products, and will permit examination thereof by      authorized representatives of Airspan at all reasonable times.
+
+6.   CONTRACT PRICE
+
+6.1  The Contract Price for each item of Equipment, Installation Services,      or Software is as specified in Schedule IV and shall be paid to Airspan in      US Dollars (US$) free of any withholding tax and of any currency controls      or other restrictions.  The Contract Price includes:
+
+a.   The price of the Equipment;
+
+b.   The fee for the licensing of the Software;
+
+c.   If Installation Services are ordered and such order is accepted                by Airspan, the charges for installing and testing each unit of                Equipment or Software;
+
+d.   The charges for the warranty of the Equipment and Software in                accordance with Sections 14 and 15; and
+
+e.   Costs in accordance with delivery obligations set forth in                Sections 8.1 and 8.2.
+
+[*]
+
+[*] Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.
+
+- -------------------------------------------------------------------------------
+
+Page 7
+
+Airspan warrants that during the term of this Agreement, the prices at      which Airspan sells to Distributor products supplied under this Agreement      shall be no less favorable to the Distributor than those prices at which      Airspan sells, at substantially the same time in the United States, similar      products and pursuant to similar terms and conditions as those by which      Airspan sells Products to the Distributor under this Agreement.  Products      shall only be deemed similar if they provide like functionality.  The terms      and conditions shall only be deemed similar if the product is supplied      pursuant to an agreement or arrangement of similar duration and commitment,      provides for similar warranties and after service commitments, involves      similar spare part and support commitments, has the same payment and other      financial terms, and otherwise has similar terms and conditions.
+
+6.2  The Contract Price is shown in Schedule IV and shall include      applicable duties, taxes or imposts, including all export or import duties.      Sales taxes and contractor's excise taxes shall be itemized on all Purchase      Orders.  The parties agree that the Contract Price in Schedule IV shall be      firm for a minimum period of twenty-four (24) months from the Effective      Date. After the above period of twenty-four (24) months, Exhibit B may be      revised by Airspan giving thirty (30) days written notice to Distributor.
+
+7.  PAYMENT TERMS.
+
+
+
+
+
+7.1  Airspan will issue an invoice (the "Invoice") to Distributor in      accordance with the payment terms below. The Invoice specifically will      identify the Equipment, Software, or other items shipped, and the Contract      Price of such items.  Any Installation Services or other services provided      by Airspan will be invoiced separately following completion of such      services.  The Invoice also shall state the total due to Airspan from      Distributor (the "Invoice Total"), which shall include the Contract Price,      and any applicable taxes, duties, and other fees due pursuant to Section 6      of this Agreement. Payment of the Invoice Total is due (without any right      of set-off) Net forty-five (45) days after the date of invoice.
+
+7.2  If Distributor disputes any invoice or part thereof, Distributor      must notify Airspan in writing within twenty-five (25) days of the invoice      date giving details of the reason for such dispute.
+
+- -------------------------------------------------------------------------------
+
+Page 8
+
+Distributor and Airspan agree to work together in good faith to resolve the      dispute as quickly as possible. Distributor may withhold payment of such      disputed amounts until resolution of the dispute. Any parts of the invoice      not under dispute shall be paid net forty-five (45) days after the date of      invoice. On resolution of the dispute, Distributor shall immediately pay      any amounts due in full.
+
+7.3  Distributor will make payment by wire or telegraphic transfer to      the bank account set forth below or, on receipt of written notification      from Airspan, to another designated bank within the United States.
+
+Bank:            Seafirst Bank, 10555 N.E. 8th, Bellevue, WA98004, USA.      Account name:    Airspan Networks Inc.      Account number:  68777507      Routing Number:  125 - 0000 - 24      Further instructions: "Reference (Distributor's name), Purchase Order      number, Payment of Invoice number"
+
+Payment will be deemed to have been made upon receipt of funds in Airspan's      bank.
+
+7.4  If the cost to Airspan of performing this Agreement increases as a      result of any change to the law or increase in import duty or freight duty,      Airspan may, at any time, add such increase to the Contract Price by      notifying Distributor in writing of such increase.
+
+8.   DELIVERY, TITLE AND RISK OF LOSS.
+
+8.1  All Equipment and Software will be delivered by Airspan CIP (as      defined in Incoterms 2000) to an airport in South Dakota that completes      international customs clearances and shipped to a location within the city      limits of the above arrival airport, such airport and delivery location are      to be agreed upon in writing by the parties for each Purchase Order.      Airspan will be responsible for and pay all packing, shipping, freight, and      insurance charges to the agreed upon location within the city limits. If      requested by Distributor, Airspan may arrange for shipment to be made to      Distributor's identified warehouse facilities or freight forwarder outside      of the city limits, subject to approval in writing by Airspan and agreement      to any additional charges in advance of shipment.  Unless specified in the      Purchase Order, Airspan will select the mode of shipment and the carrier.
+
+In this Agreement, "Incoterms" means the most recent international rules      for the interpretation of trade terms published by the International      Chamber of Commerce as in force on the Effective Date.  Unless the context      otherwise requires, any term or expression which is defined in or given a      particular meaning by the provisions of the Incoterms shall have the same      meaning in this
+
+- --------------------------------------------------------------------------------
+
+Page 9
+
+Agreement, but if there is any conflict between the provisions of the      Incoterms and this Agreement, the latter shall prevail.
+
+8.2 All risk of loss or damage to the Equipment and Software will pass to      Distributor on collection by the freight forwarder from Airspan. However,      Airspan will insure the Equipment against loss or damage in transit to the      agreed to location as set forth in the Purchase Order within the city      limits of the arrival airport as set forth in Paragraph 8.1.
+
+8.3 Title to the Equipment shall pass to Distributor on collection by the      freight forwarder from Airspan.
+
+8.4  If Distributor has any Airspan owned Equipment in its possession:
+
+a.   Distributor shall ensure that Equipment is clearly marked as the      property of Airspan, and if asked, shall inform any third parties that the      Equipment is the property of Airspan;
+
+b.   Distributor shall not purport to create any security, mortgage, lien      or pledge over the Equipment, or otherwise deal with the Equipment without      Airspan's written consent;
+
+
+
+
+
+c.   In the event of any threatened seizure of the Equipment by any third      parties, and on termination or expiration of this Agreement, or any      Contract made pursuant to it, Airspan shall have the right, without      prejudice to any other remedy, to enter without prior notice any premises      and to repossess and take away or otherwise deal with the Equipment.
+
+8.5  The Software shall at all times remain the exclusive property of      Airspan, subject to the uses provided herein.
+
+8.6  Unless Distributor clearly advises Airspan to the contrary in      writing, Airspan may make partial deliveries on account of Purchase Orders.      Delay in delivery of any installment shall not relieve Distributor of its      obligation to accept said installment, provided that said delay does not      exceed sixty (60) days from Airspan's scheduled ship date and unless      Distributor has clearly advised Airspan to cancel the delayed installment      in writing at least fifteen (15) days prior to its revised planned shipment      date or its actual shipment date by Airspan.
+
+8.7  Airspan will use reasonable efforts to meet Distributor's requested      delivery schedules for Equipment and Software, but Airspan reserves the      right to refuse, or delay delivery to Distributor when Distributor's credit      is impaired,
+
+- --------------------------------------------------------------------------------
+
+Page 10
+
+when Distributor is delinquent in payments or fails to meet other credit or      financial requirements reasonably established by Airspan, or when      Distributor has failed to perform its obligations under this Agreement.
+
+8.8  Should orders for Equipment and Software exceed Airspan's available      inventory, Airspan will allocate its available inventory and make      deliveries on a basis that Airspan deems equitable, in its sole discretion,      and without liability to Distributor on account of the method of allocation      chosen or its implementation.  In any event, Airspan shall not be liable      for any direct, indirect, consequential, or special losses or damages      (including, but not limited to, loss of income or profit and loss of data)      that may be suffered by the Distributor or by any other person for failure      to deliver or for any delay or error in delivery of Equipment or Software      for any reason whatsoever.
+
+9.   TRADEMARKS AND COPYRIGHTS.
+
+9.1  Distributor acknowledges Airspan's exclusive right, title, and interest in and to any trademarks, trade names, logos and designations which Airspan may at any time have adopted, used, or registered in the United States of America and in the Territory (the "Trademarks"), and will not at any time do or cause to be done any act or thing contesting or in any way impairing or tending to impair any part of said right, title, and interest.  In connection with any reference to the Trademarks, Distributor shall not in any manner represent that it has an ownership interest in the Trademarks or registration(s) thereof, and Distributor acknowledges that no action by it or on its behalf shall create in Distributor's favor any right, title, or interest in or to the Trademarks.
+
+9.2  Distributor recognizes the validity of Airspan's copyright in any written material to which Airspan shall have made a claim to copyright protection, and Distributor specifically recognizes Airspan's exclusive right to copyright protection and/or registration of any translation of any advertising, promotional, or descriptive material furnished to Distributor by Airspan.
+
+9.3  Whenever Distributor refers to the Trademarks in advertising or in any other manner to identify the products, Distributor shall clearly indicate Airspan's ownership of the Trademarks and before distributing or publishing any advertising, descriptive, or promotional materials, Distributor shall affirmatively provide Airspan with an opportunity to inspect and approve such materials.
+
+9.4  Distributor agrees that when referring to the Trademarks, it shall diligently comply with all laws pertaining to the Trademarks at any time in force in the Territory.
+
+- --------------------------------------------------------------------------------
+
+Page 11
+
+9.5  Distributor shall promptly notify Airspan of any and all infringements, imitations, illegal uses, or misuses of the Trademarks which come to Distributor's attention.  Distributor also agrees that it shall not at any time take any action in the courts or before the administrative agencies of the Territory or otherwise to prevent the infringement, imitation, illegal use, or misuse of the Trademarks, it being clearly understood by Distributor that such action falls wholly within the authority of Airspan as sole owner of the Trademarks.
+
+9.6  Distributor agrees to render to Airspan all assistance in connection with any matter pertaining to the protection of the Trademarks, whether in the courts or before the administrative agencies of the Territory or otherwise, and to make promptly available to Airspan, its Distributors, and attorneys all of Distributor's files, records, and other information pertaining to the
+
+
+
+
+
+advertising, promotion, and sale of the Airspan Products.  All assistance requested by Distributor in this paragraph shall be at AIRSPAN's expense.  This Expense includes costs, attorneys' and consultants' fees, and reimbursement of time spent by officers, agents and employees of Distributor.
+
+9.7  Distributor agrees and undertakes that it will not at any time, whether during the term of this Agreement or after its expiration or termination, adopt, use, or register without Airspan's prior, written consent any work or symbol or combination thereof which is similar to any of the Trademarks.
+
+9.8 In the advertising and sale of Airspan Products, Distributor may use the Trademarks in relation to those Airspan Products.  Distributor will not make or permit the alteration or removal of any tags, labels, or other identifying marks placed by Airspan on Airspan Products.  Distributor will not use or give any third party permission to use the Trademarks. Distributor will not use, or give any third party permission to use, the names "Airspan Communications Ltd.", "Airspan Networks Incorporated", "ACL", "ANI" or abbreviations or derivations thereof in Distributor's corporate titles, or in any way which might result in confusion as to Airspan and Distributor being separate and distinct entities. Distributor admits Airspan's exclusive ownership of the name "Airspan Networks Incorporated", "Airspan Communications Ltd.", "ANI", "ACL", and any abbreviations or derivations thereof and all of Airspan's Trademarks (whether registered or not).  Distributor shall not take any action inconsistent with Airspan's ownership of such Trademarks; therefore, Distributor shall treat all of Airspan's items distinctively (as to typography) and shall only use exact reproductions of all Airspan's symbols (including Airspan's logo).   Distributor shall not adopt or use any Trademark or product name which may be confusingly similar to any Airspan Trademark.  Distributor may use the Airspan logo as it appears on Airspan's letterhead.
+
+10.  CONFIDENTIAL INFORMATION AND TRADE SECRETS.
+
+- -------------------------------------------------------------------------------
+
+Page 12
+
+10.1  In this Agreement, the term "Confidential Information" shall mean the information of Airspan disclosed to Distributor in connection with its performance under this Agreement, which is in written, recorded, photographic, machine-readable, or other physical form or oral information reduced to writing as soon as practicable after disclosure to Distributor, and which is conspicuously marked "Confidential", "Proprietary", "Private", or in any other manner indicating its confidential and/or proprietary nature.  Without limitation, Confidential Information includes:  (1) Airspan's software products, materials, data reports, programs, documentation, diagrams, and all related technical information; (2) all information relating to Airspan's business and products which is critical to Airspan's position in the marketplace, including future plans of Airspan relating to the fields of endeavor in which Distributor performs services for Airspan, the nature of certain work projects to which Distributor is exposed, and the identity of persons working on those projects; and (3) any improvements, enhancements, or modifications to the above made by or on behalf of Airspan during the performance under this Agreement which are provided, made available, or disclosed by or on behalf of Airspan to Distributor, or used by Airspan or any of Airspan's other Distributors in connection with their own sales activities.
+
+10.2  Trade secrets are confidential information that includes ideas, concepts, techniques, processes, inventions, knowledge, and know-how developed by Airspan which:  (1) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (2) is subject to the efforts of Airspan that are reasonable under the circumstances to maintain its secrecy.  (This "trade secret" language comes from the Uniform Trade Secrets Act.)
+
+10.3  Distributor covenants and agrees that it will use the Confidential Information solely for the performance of services under this Agreement, and shall not disclose such Confidential Information to any other person (including Airspan employees in any other division, group, or entity), firm, or corporation.
+
+10.4  Distributor shall use the same degree of care in safeguarding the Confidential Information as it uses for its own confidential information of like importance, but no less than reasonable care.  Upon discovery of any disclosure or misuse of Confidential Information, Distributor shall endeavor to prevent any further disclosure or misuse.
+
+10.5  All Confidential Information shall remain the property of Airspan, and such Confidential Information and all copies thereof shall promptly be returned to Airspan upon request or, at Airspan 's option, destroyed, in which case Airspan shall be notified in writing when it has been destroyed.
+
+- --------------------------------------------------------------------------------
+
+Page 13
+
+10.6  Nothing contained in this Agreement shall be construed as granting to or conferring upon Distributor any rights, by license or otherwise, express or implied, in Airspan's Confidential Information, other than the right to use the Confidential Information for the purpose of this Agreement.
+
+
+
+
+
+10.7  Any copies of the Confidential Information made by Distributor shall reproduce proprietary marking and legends included therein, but the provisions of this Agreement supersede any provisions of such legends inconsistent herewith.
+
+10.8  The terms and conditions of this Agreement shall not be disclosed by Distributor to others, except with the prior, written consent of Airspan, or as may be required by law or as necessary to establish its rights hereunder.
+
+10.9  If, in connection with its performance, Distributor discloses to Airspan any ideas, developments, or inventions conceived or actually reduced to practice by Distributor prior to its performance hereunder, no relationship, confidential or otherwise, express or implied, is established with Airspan by the disclosure thereof.  With respect to any such disclosure, no obligation of any kind is assumed by nor may be implied against Airspan, its subsidiary, or associated companies unless a formal, separate, written contract regarding the subject of disclosure is consummated by the parties, and then the obligation shall be only as expressed in the separate contract.
+
+10.10  Distributor agrees that any breach of the provisions of this Section by Distributor or Distributor's personnel, agents, or subcontractors, or any third party providing products or services to Distributor will cause immediate and irreparable injury to Airspan and that, in the event of such breach, Airspan shall be entitled to injunctive relief and any and all other remedies available at law or in equity.
+
+10.11  After Distributor has received Airspan's Confidential Information and know-how, it will be impossible to segregate Airspan's knowledge and know- how from other knowledge acquired independently by Distributor.  Accordingly, during the performance of this Agreement and for three (3) months after termination of services under this Agreement, Distributor will not offer services to third parties which compete with the services provided by Airspan under this Agreement, or otherwise use the knowledge acquired from Airspan in order to compete with Airspan or its customers.  Notwithstanding anything to the contrary above, Distributor is not precluded from any activities which concern product sectors or industries other than those that concern products or services similar to those offered by Airspan in connection with this Agreement.  Nothing in this paragraph will be construed to prevent Distributor from providing service to existing customers of Distributor which would result in their interruption of service to the public.
+
+- --------------------------------------------------------------------------------
+
+Page 14
+
+10.12 During the performance of this Agreement and for three (3) months after termination of services under this Agreement, Airspan will not offer products or services to third parties which compete with the products or services provided by Distributor under this Agreement, or otherwise use the knowledge acquired from Distributor in order to compete with Distributor its customers
+
+10.13 The obligations of this Section 10 shall survive the expiration or termination of this Agreement.
+
+11.  SOFTWARE LICENSE.
+
+11.1 Airspan grants Distributor, and Distributor hereby accepts, a nonexclusive, non-transferable license to use, and to sublicense as set forth below, Software provided by Airspan hereunder only on a single System or unit of Equipment, as may be applicable.  No license is granted to use the Software on multiple Systems or in conjunction with Equipment furnished by a party other than Airspan, unless specifically agreed to in writing by Airspan.  Software licensed under this Agreement is defined as: (a) any digital instruction sequence or control data contained on any media, including but not limited to, any magnetic-, electronic-, optical-, or organic device, and the term Software shall include any enhancement, modification, extension, part, portion or expansion thereof or implementation or downloading from network of any of the foregoing, for use exclusively on a System or a unit of Equipment; and (b) all associated documentation used to describe, maintain and use the Software.
+
+11.2 Any Software provided to Distributor by Airspan will be treated as the exclusive property of Airspan, and Distributor will:  (a) treat such Software as Confidential Information under Section 10 of this Agreement; (b) utilize such Software or any portions or aspects thereof (including any methods or concepts utilized therein) solely on Systems or Equipment provided by Airspan; (c) forthwith return to Airspan all memory media, documentation and/or other material that has been modified, updated or replaced; (d) except to the extent permitted by applicable law not modify, disassemble or decompile such Software, or reverse engineer any portion of the Software or functioning of Systems or Equipment, or permit others to do so, without Airspan's prior written consent; (e) except to the extent permitted by applicable law not reproduce or copy such Software in whole or in part except for backup and archival purposes or as otherwise permitted in writing by Airspan; (f) not perform or release benchmarks or other comparisons of the Software; and (g) not remove any trademark, tradename, copyright, notice or other proprietary notice from the Software and Distributor shall be responsible for the conservation of the same on any back-up copy of the Software.
+
+- --------------------------------------------------------------------------------
+
+Page 15
+
+
+
+
+
+11.3 In the event of a breach of this license by Distributor, then Airspan may, in its discretion, terminate the license with immediate effect, whereupon Distributor shall return to Airspan all Software and copies thereof within ten (10) days.
+
+12        EXCUSABLE DELAY.
+
+Airspan shall not suffer any liability for non-performance, defective performance, or late performance under this Agreement due to causes beyond its control and without its fault or negligence such as, but not limited to, acts of God, war (including civil war), civil unrest, acts of government, fire, floods, explosions, the elements, epidemics, quarantine, restrictions, strikes, lock- outs, plant shutdown, material shortages, or delays in transportation or delays of its suppliers or subcontractors for like cause.
+
+In the event of excusable delay as defined in the preceding sentence, then Airspan, upon giving prompt written notice to Distributor, shall be excused from such performance on a day-to-day basis to the extent of such prevention, restriction, or interference (and Distributor shall likewise be excused from performance of its obligations on a day-to-day basis to the extent Distributor's obligations relate to the performance so prevented, restricted, or interfered with), provided that Airspan shall use its best endeavors to avoid or remove such causes of non-performance and both parties shall proceed to perform with dispatch whenever such causes are removed or cease to exist.
+
+13.  TERM AND TERMINATION.
+
+13.1  This Agreement shall remain in effect for sixty (60) months from the Effective Date (the "Initial Term"). After the Initial Term, the term of the Agreement may be extended by a further period of five (5) years by mutual written agreement by the parties in the form of an amendment to this Agreement. If Distributor wishes to extend the term of the Agreement beyond the Initial Term, it  must notify Airspan in writing at least six (6) months prior to then end of the Initial Term. However, nothing contained herein shall be interpreted as requiring either party to renew or extend this Agreement.  Notwithstanding the provisions of this section or of any other provisions of this Agreement, this Agreement may be terminated prior to the expiration of its stated term as set forth below.
+
+13.2  Either party may terminate this Agreement at any time during the term of this Agreement if  either party fails materially to comply with any covenant, term, or provision of this Agreement, by written notice given to the other party not less than thirty (30) days prior to the effective date of such termination. Either party's right to terminate this Agreement under this Section 13.2 may not be exercised unless said
+
+- --------------------------------------------------------------------------------
+
+Page 16
+
+party shall have given the other party written notice of the failure, and the other party has not cured the failure within the thirty (30) day period following notice from said party.
+
+13.3  This Agreement terminates automatically for just cause, with no further act or action of either party if:  (a) a receiver is appointed for Distributor or its property; (b) Distributor&sbsp;makes an assignment for the benefit of its creditors; (c) any proceedings are commenced by, for, or against Distributor under any bankruptcy, insolvency, or debtor's relief law; or (d) Distributor is liquidated, dissolved, or otherwise terminates its activities.
+
+13.4 In the event of termination by either party for any reason, Distributor shall provide Airspan with lists of existing customers as well as other information necessary for an orderly changeover of representation in the Territory.
+
+13.5  Upon termination, Distributor shall immediately return to Airspan all Confidential Information, and Distributor agrees that neither it nor any company or organization controlled or directed by it shall divulge the contents of such material to any person at any time, notwithstanding the termination of this Agreement.
+
+13.6 Airspan shall not be liable to Distributor for damages of any kind, including incidental or consequential damages, on account of the termination of this agreement in accordance with this section 13.  Airspan shall not be liable to Distributor on account of termination or expiration of this Agreement for reimbursement or damages for loss of goodwill, prospective profits, or anticipated orders, or on account of any expenditures, investments, leases, or commitments made by either party, or for any other reason whatsoever based upon or growing out of such termination or expiration.  Airspan will recognize payments due to Distributor for orders received up to ninety (90) days after the termination or expiration of this Agreement.
+
+13.7  Distributor acknowledges and agrees that: (a) Distributor has no expectation and has received no assurances that its business relationship with Airspan will continue beyond the states term of this agreement or its earlier termination in accordance with this section, that any investment by Distributor in the promotion of Airspan's Products will be recovered or recouped, or that Distributor shall obtain any anticipated amount of profits by virtue of this Agreement; and (b) Distributor shall not have or acquire by virtue of this Agreement or otherwise any vested, proprietary, or other right in the promotion of Airspan's Products or in any goodwill created by its efforts hereunder.
+
+
+
+
+
+13.8  This Section 13.8, as well as the provisions of Sections 9, 10, 11, 16, 17 and 18, shall survive the termination of this Agreement.
+
+- -------------------------------------------------------------------------------
+
+Page 17
+
+14.  WARRANTY.
+
+14.1 THE WARRANTIES SET FORTH IN SECTIONS 14 AND 15 OF THIS AGREEMENT ARE IN LIEU OF, AND Airspan HEREBY DISCLAIMS, ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED TERMS AND WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
+
+14.2 Subject to Sections 14.3 and 14.4, Airspan warrants that the Equipment sold to Distributor under this Agreement shall, under normal use and service, be free from defects in materials and faulty workmanship, and that the Software licensed to Distributor under this Agreement shall conform in all material respects to Airspan's published specifications therefor. The warranty period for any item of Equipment and related Software shall be twelve (12) months from the date of delivery of such Equipment and related Software to Distributor as set forth in Paragraph 8.1 (hereinafter, this period of time shall be referred to as the "Initial Warranty Period.")
+
+14.3 Airspan's obligation and Distributor's sole remedy under this warranty are limited to the replacement or repair, at Airspan's option, of the defective Equipment or Software within the Initial Warranty Period. Airspan shall have no obligation to remedy any such defect if it can be shown that: (a) the Equipment or Software was altered, repaired, or reworked by any party other than Airspan without Airspan's prior written consent; (b) such defects were the result of Distributor's or a third party's improper storage, mishandling, abuse, or misuse of the Equipment or Software; (c) such defects were the result of Distributor's or a third party's use of the Equipment or Software in conjunction with equipment electronically or mechanically incompatible or of an inferior quality; or (d) the defect was the result of damage by fire, explosion, power failure, or any act of nature.
+
+14.4  In no event shall Airspan be obliged to provide on-site maintenance. Subject to the provisions of this warranty clause, defective parts or components must be returned by Distributor to Airspan's designated facility located within the contiguous 48 states in the United States, freight prepaid, within the Initial Warranty Period, and said defective parts will be repaired or replaced by Airspan at no charge to Distributor.  In connection with such return by Distributor, Distributor shall comply with Airspan's Return Material Authorization (RMA) procedures.  Risk of loss or damage to Equipment or Software returned to Airspan for repair or replacement shall be borne by Distributor until delivery to Airspan.  Upon delivery of such Equipment or Software, Airspan shall assume the risk of loss or damage until that time that the Equipment or Software being repaired or replaced is returned and delivered to Distributor. Distributor will pay all transportation costs for Equipment or Software shipped to Airspan for repair or replacement.  Airspan shall pay all transportation costs associated
+
+- -------------------------------------------------------------------------------
+
+Page 18
+
+with returning repaired or replaced Equipment or Software to Distributor unless there was no fault found (NFF), in which event, the Distributor shall pay such transportation costs, along with Airspan's then prevailing standard NFF charge.
+
+14.5  Airspan will charge Distributor for any maintenance carried out which is not covered by the warranties contained in Section 14.2 or Section 15 at Airspan's then prevailing standard rates for such services.
+
+15.  WARRANTY ON REPAIRED AND REPLACEMENT MATERIALS.
+
+Airspan warrants that, following repair or replacement, the repaired or replaced Equipment or Software by Airspan shall be free from defects in materials and faulty workmanship and that the Software will conform in all material respects to Airspan's published specifications therefor for ninety (90) days from date of shipment from Airspan to Distributor or until the end of the Initial Warranty Period, whichever is longer.
+
+16.  LIMITATION OF LIABILITY.
+
+16.1  WITHOUT PREJUDICE TO SECTION 16.4, NEITHER Airspan, NOR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, SHAREHOLDERS, OR AFFILIATES (Airspan AND SUCH OTHER PERSONS, THE "Airspan PARTIES"), SHALL HAVE ANY LIABILITY TO DISTRIBUTOR FOR LOSS OF PROFITS, INCOME, REVENUE OR DATA, OR INCIDENTAL, CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES OR LOSSES, ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT, ANY PURCHASE ORDER PLACED PURSUANT TO THIS AGREEMENT OR ANY OTHER COLLATERAL CONTRACT, OR FROM OR IN CONNECTION WITH THE EQUIPMENT OR THE SOFTWARE OR THE USE THEREOF OR THE INABILITY TO USE THEM EITHER SEPARATELY OR IN COMBINATION WITH OTHER EQUIPMENT OR SOFTWARE, OR FROM ANY OTHER CAUSE, WHETHER CAUSED BY NEGLIGENCE, BREACH OF CONTRACT, STRICT LIABILITY, BREACH OF WARRANTY, ON GROUNDS OF FAILURE OF ESSENTIAL PURPOSE OR OTHERWISE.
+
+16.2  Without prejudice to Sections 16.3 and 16.4, the liability of the Airspan Parties, taken as a whole, for each event or series of connected events
+
+
+
+
+
+arising out of or in connection with this Agreement, any purchase order placed pursuant to this Agreement, or any other collateral contract, or from or in connection with the Equipment or Software or the use thereof, or the inability to use them either separately or in combination with other equipment or software, or from any other cause, whether caused by negligence, breach of contract, strict liability, breach of warranty, on grounds of failure of essential purpose, or otherwise, shall in no circumstance exceed the total amount payable by Distributor to Airspan under this Agreement for the provision of
+
+- -------------------------------------------------------------------------------
+
+Page 19
+
+the Equipment or Software which gave rise to the loss or damage or in connection with which the loss or damage was incurred.
+
+16.3  Airspan Parties, taken as a whole, shall be liable for physical damage to Distributor's property resulting from Airspan's negligence under or in connection with this Agreement up to a maximum aggregate amount of one million US Dollars (US$1,000,000).  And Distributor, taken as a whole, shall be liable for physical damage to Airspan's property resulting from Distributor's negligence under or in connection with this Agreement up to a maximum aggregate amount of one million US Dollars (US$1,000,000).
+
+16.4  Nothing in this Agreement shall exclude or in any way limit Airspan liability for death or personal injury caused by its negligence.
+
+16.5  Save as provided for in Section 17 Distributor shall indemnify and hold harmless and defend the Airspan Parties from and against all claims, demands, actions, suits, proceedings, writs, judgments, orders and decrees brought, made or rendered against them or any of them and all damages, losses and expenses suffered or incurred by them or any of them howsoever arising out of or related to the breach by Distributor of any of the terms of this Agreement. Airspan shall notify Distributor forthwith of any claim, demand, action, suit, proceeding, writ, judgment, order or decree falling within the scope of this Section 16.5 and shall permit Distributor sole conduct of the same and shall provide reasonable assistance in relation thereto, subject to appropriate defense by Distributor and the payment by Distributor of Airspan's reasonable costs and expenses.
+
+16.6  Distributor shall include, in its agreements with its customers pursuant to which Distributor supplies Equipment or Software, provisions pursuant to which such customers agree that the Airspan Parties shall have no liability for any of the types of damages referred to at Section 16.1 in connection with or arising from the Equipment or Software or the use thereof, or the inability to use them either separately or in combination with other equipment or software, or from any other causes.
+
+17.  INTELLECTUAL PROPERTY RIGHTS INDEMNITY.
+
+17.1 Airspan agrees to indemnify and hold Distributor harmless with respect to any suit, claim, or proceeding brought against Distributor by a third party alleging that Distributor's use of the Equipment or the Software, separately or in combination, as a whole or in part, constitutes an infringement of any patent or copyright or misuse of proprietary or trade secret information.  Airspan agrees to defend Distributor against any such claims and to pay all litigation costs, reasonable attorney's fees, settlement payments, and any damages awarded or resulting from any such claim.
+
+- -------------------------------------------------------------------------------
+
+Page 20
+
+17.2 Distributor shall promptly advise Airspan of any such suit, claim, or proceeding and shall co-operate with Airspan in the defense or settlement thereof.  Airspan shall have sole control of the defense of any action involving such a claim and of all negotiations for its settlement or compromise.
+
+17.3 In the event that an injunction is obtained against Distributor's use of the Equipment and/or the Software, in whole or in part, as a result of any such claim, Airspan shall use its best efforts to either: (a) procure for Distributor the right to continue using the portions of the Equipment or the Software enjoined from use; or (b) replace or modify the same with functionally equivalent or better Equipment and/or Software so that Distributor's use is not subject to any such injunction.  In the event that Airspan cannot perform the remedies set forth in Sections 17.3(a) or 17.3(b), then Distributor shall have the right to return such Equipment and the Software to Airspan.  In the event of such return, Airspan shall refund the depreciated value of the Equipment and the license to use the Software within thirty (30) days of the receipt by Airspan of the Equipment and the Software.
+
+17.4 This indemnity shall not apply to claims arising in respect to the use of the Equipment or Software supplied by Airspan or manufactured by its suppliers in accordance with any design or any special instruction furnished by Distributor, or which is used by Distributor in a manner or for a purpose not contemplated by this Agreement.
+
+17.5 The provisions of this Section 17 set forth the entire obligation of Airspan with respect to any claim of patent infringement, copyright infringement, or misuse of proprietary or trade secret information.
+
+18.  EXPORT CONTROLS AND LEGAL COMPLIANCE.
+
+
+
+
+
+18.1 If any approval with respect to this Agreement, or the registration thereof, shall be required at any time during the term of this Agreement, with respect to giving legal effect to this Agreement in the Territory, or with respect to compliance with exchange regulations or other requirements so as to assure the right of remittance abroad of United States dollars pursuant to Section 6 hereof, Distributor shall immediately take whatever steps may be necessary in this respect, and any charges incurred in connection therewith shall be for the account of Distributor.  Distributor shall keep Airspan currently informed of its efforts in this connection.  Airspan shall be under no obligation to ship Airspan Products to Distributor hereunder until Distributor has provided Airspan with satisfactory evidence that such approval or registration is not required or that it has been obtained.
+
+18.2 In the performance of its obligations under this Agreement, Distributor shall at all times strictly comply with all export laws, regulations, and orders of the
+
+- -------------------------------------------------------------------------------
+
+Page 21
+
+United Kingdom and the United States of America. Distributor specifically acknowledges that Equipment, Software or technology supplied or licensed by Airspan under this Agreement are subject to U.K. and U.S. trade sanctions and export control laws and regulations including, but not limited to, the various Foreign Assets Control Regulations, the Export Administration Regulations, and the International Traffic in Arms Regulations. Distributor specifically acknowledges that Equipment, Software, or technology obtained from Airspan pursuant to this Agreement shall not be exported, re-exported, transshipped, disclosed, diverted, or transferred, directly or indirectly, contrary to U.K. and U.S. laws, orders or regulations. The provisions of this section shall survive any termination of this Agreement.
+
+19.  TRAINING AND DOCUMENTATION.
+
+19.1 Airspan shall provide a single technical course in the English language for up to two (2) qualified technicians of Distributor during the first year of this Agreement.  The training course so developed by Airspan shall be used to familiarize Distributor's technicians with the use and maintenance of Airspan Products.  Training will be conducted at Airspan's facilities in Uxbridge, UK, unless otherwise agreed to by Airspan.  The necessary instructors and training facilities will be provided by Airspan at no charge to Distributor. Distributor will pay all additional expenses of training including, but not limited to, travel and room and board.  Additional training courses may be requested by Distributor at Airspan's then current rates for such courses.
+
+19.2 Airspan agrees to provide Distributor at no additional charge with its standard package of documentation related to the use, maintenance, and installation of Airspan Products.  In the event that such documentation is modified during the term of this Agreement, Airspan agrees to provide to Distributor at no additional charge all such modifications.  In addition to the documentation described above, Airspan agrees to provide at no additional charge reasonable amounts of sales materials such as brochures, press releases, and fact sheets.  All documentation provided by Airspan to Distributor shall be in the English language.  All translation of such documentation provided by Airspan will be at Distributor's sole expense.  All such translations and advertising material not supplied by Airspan relating to Airspan Products and services will be submitted to Airspan for approval before publication or dissemination.
+
+20.  CONFLICT OF INTEREST.
+
+Distributor confirms that it has revealed all information pertaining to possible conflicts of interest created by the sale of competing products or services or arising from other positions or contracts held by Distributor, and represents that no conflict of interest exists.  Any future circumstances which could create possible conflicts of interest will be revealed to Airspan as soon as they become known by informing Airspan of any business relationships, circumstances, or situations which could prejudice in any way
+
+- --------------------------------------------------------------------------------
+
+Page 22
+
+the conduct of Airspan marketing activities according to the highest ethical and business standards, or place Airspan or Distributor in any kind of embarrassing situation.
+
+21.  MISCELLANEOUS.
+
+21.1  Pursuant to the Foreign Corrupt Practices Act of the United States of America, directors, officers, or employees of Distributor shall not offer or pay any bribe to any individual or corporation in connection with the provision or support of any Airspan Products obtained under this Agreement. When other individuals or organizations are required to participate in the sales program covered by this Agreement, they shall be compensated fairly based on the tasks performed.  In no circumstances are public servants or holders of public office to be offered or paid any bribe or other benefit, direct or indirect.  No contribution in any way related to Airspan shall be made to candidates for public office or to political parties or other political organizations, regardless of whether such contributions are permitted by the laws of the Territory.  The parties agree that both parties will comply fully with all of the terms, conditions, rules, regulations and statutes of the Foreign Corrupt Practices Act.  The parties further agree that if either party violates any of
+
+
+
+
+
+the provisions of said Act, the party violating the Act will indemnify the other party from any and all liability thereunder, including costs, expenses, fines or legal fees.
+
+21.2  In performing this Agreement,  the parties shall comply with all applicable laws, rules, and regulations, and shall indemnify, defend and save each other harmless from  said party's failure to do so.  Furthermore, if this Agreement, the relationship created hereby or the performance hereof is determined by either party to be contrary either to (a) the laws, rules or regulations applicable to the parties; or (b) the parties' representations as set forth herein, this Agreement will be null and void from its inception. The parties have entered into this Agreement in material reliance on the following representations made by each party that:
+
+a. Neither this Agreement, the relationship created hereby nor the      performance hereof is contrary to any applicable law, rule or regulation;
+
+b. The parties have not refunded and will not refund either directly      or indirectly, any funds to any director, officer, employee or other      representative of either party (or of any subsidiary controlled by or      affiliated with either party) or to such party's family; and
+
+c.  The parties represent and covenant that they have not made and      will not commit themselves to make, nor will they directly or indirectly      make, any payments in connection with the business of the parties to any      director, officer, official, employee or shareholder of any governmental or      private
+
+- --------------------------------------------------------------------------------
+
+Page 23
+
+customer, or prospective customer, or of any political party, or to such      party's family, or that are otherwise illegal under applicable law.
+
+Distributor understands and agrees that Airspan will comply with any legal provision requiring disclosure of, or request from a government or governmental or private customer to disclose, by affidavit or otherwise, the identity of payments made or to be made to Distributor.
+
+21.3  Neither party may assign this Agreement or subcontract its obligations under this Agreement to another party without the other party's prior, written consent executed by a duly authorized officer.  The parties agree that if said assignment is to a subsidiary or affiliate organization, said consent to assignment will not be unreasonably withheld.
+
+21.4 This Agreement shall be construed in accordance with and governed by the laws of the State of South Dakota.
+
+21.5  Any dispute, controversy or claim between the parties arising out of, or in connection with, this Agreement, or the breach, termination or validity thereof will be resolved by mutual agreement of the parties, provided that this shall not limit the ability of the parties to seek temporary or interim injunctive relief in the event of any breach or threatened or impending breach of the confidentiality provisions of this Agreement.  If any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination or validity thereof is unable to be resolved by mutual agreement of the parties, each of the parties hereby (i) agrees that any action, suit or proceeding with respect to this Agreement against it or its properties or revenues must be brought exclusively in the federal and state courts siting in Minneapolis, MN, and (ii) irrevocably submits to the exclusive jurisdiction of any such court and any appellate court from any order or judgment thereof in any such action, suit or proceeding.  The parties hereby irrevocably agree that all claims in respect of such action, suit or proceeding may be heard and determined in such courts. The parties hereby irrevocably waive, to the fullest extent they may effectively do so, the defense of an inconvenient forum to the maintenance of such action, suit or proceeding.  The parties agree that a final judgment in any such action, suit, or proceeding will be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
+
+21.6  The parties' failure to enforce at any time any of the provisions of this Agreement or any right with respect thereto, or to exercise any option herein provided shall in no way be construed to be a waiver of such provision, rights, or options, or in any way to affect the validity of this Agreement.  The parties' exercise of any of their rights hereunder or of any options hereunder under the terms or covenants herein shall not preclude or prejudice the parties from thereafter exercising the same or any right
+
+- --------------------------------------------------------------------------------
+
+Page 24
+
+which they may have under this Agreement, irrespective of any previous action or proceeding taken by either party hereunder.
+
+21.7  In the advertising and sale of Airspan products, Distributor will utilize Airspan's regular trade names and trademarks only as permitted or directed by Airspan, will not make or permit alteration or removal of any tags, labels, or other identifying marks placed by Airspan on its products, and will not use the name "Airspan Communications Corporation" or abbreviations thereof in Distributor's corporate titles or in any other way which might result in confusion as to Airspan and Distributor being separate and distinct entities.
+
+
+
+
+
+Distributor will not register any Airspan trademark.
+
+21.8  This Agreement shall be binding upon the parties, their heirs, successors in interest and permitted assigns.
+
+21.9  This Agreement and any attachment hereto shall be modified only by an instrument in writing and signed by duly-authorized officers or agents of the parties.
+
+21.10  All notices, requests, consents, and other communications hereunder must be in writing and will be deemed to have been properly given when actually received by the party to whom sent, at the following addresses:
+
+To:  Airspan                    To: Distributor
+
+Airspan Networks Inc.           GLS LLC      777 108 Th. Avenue NE           501 Fourth Street      Suite 1895                      PO Box 67      Bellevue, Washington            Sergeant Bluff, IA      98004                           51054      Attn:  Peter Stanway            Attn: Jon Winkel      Contracts Manager      Fax No. 919-319-0106
+
+21.11  The provisions of this Agreement are severable, and if any provision is held invalid or unenforceable in whole or in part in any jurisdiction, then such invalidity or unenforceability will affect only such provision or part thereof in such
+
+- ------------------------------------------------------------------------------
+
+Page 25
+
+jurisdiction, and will not in any manner affect the provision in any other jurisdiction, or any other provision in this Agreement in any other jurisdiction.
+
+21.12  Distributor agrees not to publish any press releases or otherwise publicize the existence, or any of the terms, of this Agreement without the prior written consent of Airspan, such consent not unreasonably to be withheld or delayed.
+
+22.  This document constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes all previous communications, representations, understandings, and agreements, either oral or written, between the parties or any official or Distributor thereof with respect to the subject matter hereof.
+
+- --------------------------------------------------------------------------------
+
+Page 26
+
+IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the Effective Date, such parties acting by their officers, being thereunto duly authorized.
+
+Airspan Networks Inc.                GLS LLC
+
+By:  _______________________________   By:  ______________________________
+
+Name: ______________________________   Name: _____________________________
+
+Title: ______________________________  Title: ____________________________
+
+Page 27

full_contract_txt/AIRTECHINTERNATIONALGROUPINC_05_08_2000-EX-10.4-FRANCHISE AGREEMENT.txt

@@ -0,0 +1,701 @@
+[LOGO]
+
+                                    EXHIBIT C
+
+                                    AIRSOPURE                                FRANCHISE AGREEMENT
+
+THIS AGREEMENT is entered into on this ____ day of ___________, 2000, by and between Airsopure International Group, Inc., a Nevada corporation whose principal place of business is located at 15400 Knoll Trail, Suite 200, Dallas, Texas 75248 (hereinafter "AIRSOPURE" or by reference "we", "us", "our"), and You:                                    ,     ------------------------------------ whose address is:
+
+- ----------------------------------------
+
+- ---------------------------------------- (hereinafter "You" or by reference "Franchisee", or "Your"). Either Party or both Parties respectively may be referred to as "Party" or "Parties."
+
+                                    RECITALS
+
+A. AIRSOPURE and its affiliate design, manufacture and distribute indoor air cleaning systems under the name and mark "AIRSOPURE" (the "Products").
+
+B. AIRSOPURE has developed a system for the establishment, development and operation of sales centers ("AIRSOPURE Center(s)" or "Center(s)") for the sale and servicing of AIRSOPURE's exclusive line of Products using the service mark "AIRSOPURE" and other trademarks, service marks (including but not limited to, "The Essence of Clean Air"), logos and identifying features designated from time to time by AIRSOPURE (the "Licensed Marks") and using AIRSOPURE's distinctive methods for establishing and operating AIRSOPURE Centers.
+
+C. You desire to establish an AIRSOPURE Center to be located in the following geographic area:
+
+- ----------------------------------------
+
+- ----------------------------------------
+
+(the "Exclusive Territory"), and AIRSOPURE desires to grant You the right to operate an AIRSOPURE Center at such location under the terms and conditions contained in this Agreement.
+
+NOW, THEREFORE, in consideration of the mutual rights, covenants and obligations set forth herein, the Parties agree as follows:
+
+1.  GRANT OF FRANCHISE
+
+1.01. AIRSOPURE grants to You, and You accept from AIRSOPURE, the right and license to operate an AIRSOPURE Center (or the "Franchise") for the sale or lease of AIRSOPURE's exclusive line of Products or at a location in the Exclusive Territory to be approved in writing by AIRSOPURE and listed in attached Exhibit A (the "Exclusive Territory and Center Location"), to purchase Products from AIRSOPURE or its affiliates for resale at the Center to customers in the Exclusive Territory, and to use the Licensed Marks only in connection with the operation of the Franchise in accordance with the terms and conditions of this Agreement. AIRSOPURE grants the Franchise to You hereunder in reliance upon Your agreement to at all times operate and manage the Franchise faithfully, honestly and diligently in strict conformance with AIRSOPURE's operating procedures and specifications, as set forth herein and as otherwise from time to time communicated to You, using Your best efforts to promote and enhance the performance and operation of the Franchise.
+
+1.02. AIRSOPURE hereby grants to You the exclusive right to solicit customers for the Products by direct mail advertising, or other approved means, but not including the World Wide Web (Internet) nor by printed catalogues, in
+
+                                       1
+
+the Exclusive Territory described above and in Exhibit A. Other AIRSOPURE franchisees will not be permitted to solicit customers for Products by advertising in Your Exclusive Territory. Likewise, You may not target or solicit customers for Products by advertising in other Franchisees respective Exclusive Territories. Exclusive Territories will not overlap into other Exclusive Territories. You shall not purposely solicit sales and service to customers located outside Your Exclusive Territory, provided such activity in not within an assigned Exclusive Territory. You have been granted an exclusive trade area by this Agreement.
+
+2.  TERM AND RENEWAL
+
+2.01. The term of this Agreement shall be for 10 years commencing on the date of execution of this Agreement by AIRSOPURE.
+
+2.02. At the expiration of the term or any renewal term hereof, You may, at its option, renew the Franchise granted hereunder for 2 additional terms of 10 years each on the following terms and conditions:
+
+
+
+
+
+A. You shall give AIRSOPURE notice in writing of Your election to renew this Agreement at least 3 months prior to the expiration of the then-current term.
+
+B. You shall not be in default of any provision of this Agreement or amendment hereto, including without limitation all payment obligations to AIRSOPURE and its affiliates.
+
+C. As a condition of renewal of the Franchise, You agree to execute AIRSOPURE's then-current form of franchise agreement and to comply fully with all terms and conditions thereof, and to pay AIRSOPURE the then-current renewal fee, which is presently $1,000.00. You understand that AIRSOPURE may revise its franchise agreement for any renewal term, at AIRSOPURE's sole discretion, including without limitation to increase the royalty fees or other fees payable by You or to require other obligations of franchisees.
+
+D. You shall meet AIRSOPURE's then-current qualifications and training requirements.
+
+E. You shall execute a general release in a form prescribed by AIRSOPURE releasing AIRSOPURE and its affiliates, directors, officers, employees and agents from all known and unknown claims and liabilities to the extent permitted by state and federal law.
+
+F. You may be required, at AIRSOPURE's sole discretion, to upgrade or remodel Your AIRSOPURE Center to conform to AIRSOPURE's then-current specifications and standards as specified in AIRSOPURE's Operating Manual of otherwise in writing, provided such upgrade or remodel is reasonable in terms of cost and implementation schedule.
+
+3.  FEES
+
+3.01. In consideration of the Franchise rights and license granted herein, You agree to pay to AIRSOPURE the following fees:
+
+A. You shall pay to AIRSOPURE an initial franchise fee of $25,000.00 upon execution of this Agreement. You agree that the initial franchise fee represents payment for the initial grant of the Franchise rights and license granted herein, shall be fully earned upon execution of this Agreement, and the said fee will not be refunded under any circumstances unless otherwise specifically set forth herein. You must find a suitable Center site within 90 days of signing the Franchise Agreement, unless we mutually agree otherwise. If we cannot agree on a Center location, within 4 months, we may a) extend your search time, b) exchange your territory, or c) terminate your Franchise and refund up to 70% of your Franchise Fee, at our sole discretion. There are no refunds under any other circumstances.
+
+B. You shall pay to AIRSOPURE a continuing non-refundable royalty fee on a monthly basis of
+
+                                       2
+
+5% of Your total monthly gross sales, as defined below. This fee is due by the 7th of the month for the preceding month.
+
+C. You shall account to AIRSOPURE for Your continuing non-refundable local advertising fee of 2% of Your total monthly gross sales, which You must spend on the promotion of Your Center. This accounting is due by the 7th of the month for the preceding month.
+
+D. You shall pay to AIRSOPURE a continuing non-refundable Advertising Fund fee of 2% of Your total monthly gross sales, beginning January 1, 2001, or later at our sole option, as described in Section 10 hereof. This fee will be due by the 7th of the month for the preceding month.
+
+E. "Gross sales" as used in this Section 3.01 shall mean the amount of gross revenues received by You from all sources, including without limitation sales of Products, services or other merchandise of every kind or nature from, at or in connection with the operation of the AIRSOPURE Center granted herein, excluding state, federal or local sales taxes collected from customers and paid to the appropriate taxing authority.
+
+F. Fees payable under Paragraphs 3.01.B and 3.01.D above shall be due and payable monthly by the seventh day of each month, based on Your gross sales of the previous month. Delinquent fees shall bear interest at a rate of the lower of: (i) one and one-half percent (1.5%) per month, or (ii) the maximum rate permitted by applicable law.
+
+4.  DUTIES OF AIRSOPURE
+
+4.01. Prior to the opening of the Franchise, AIRSOPURE shall:
+
+A. Following receipt in writing from You of a request for approval of at least 3 possible locations as the Authorized Location for the Franchise, AIRSOPURE will promptly evaluate such locations and notify You in writing of its approval or rejection of such location(s) within 7 working days.
+
+B. Provide You with AIRSOPURE's specifications and requirements or other assistance deemed necessary by AIRSOPURE to assist You in opening the Center.
+
+C. Provide an initial training program for 2 people to be designated by You as described in AIRSOPURE's Operations Manual.
+
+D. Provide one copy, on loan to You, of AIRSOPURE's Operations Manual as described in Section 8 hereof for use solely in connection with operation of the
+
+
+
+
+
+AIRSOPURE Center granted hereunder.
+
+E. Sell to You an opening order of Products for resale or lease at the Franchise as described in Paragraph 6.01 below.
+
+4.02. Following the opening of the Franchise, AIRSOPURE shall:
+
+A. Provide daily consultation by telephone as reasonably requested by You during the first two weeks of operation of the AIRSOPURE Center Franchise.
+
+B. Provide continuing general advisory assistance as deemed necessary by AIRSOPURE regarding the operation and advertising of the Franchise.
+
+C. Provide updates, revisions and amendments to the AIRSOPURE Operating Manual and system as AIRSOPURE may from time to time deem necessary or desirable.
+
+D. Fill Your orders for Products for resale at the Franchise in accordance with Section 6 below.
+
+E. Provide training programs or seminars as AIRSOPURE may, from time to time in its sole discretion, deem appropriate. AIRSOPURE's training programs for franchisees is described in AIRSOPURE's Operations Manual, and is subject to change at any time in AIRSOPURE's sole
+
+                                       3
+
+discretion.
+
+F. AIRSOPURE may, from time to time at its sole discretion, provide test customers or store visits by AIRSOPURE representatives to evaluate Your methods of operation and compliance with AIRSOPURE's standards and specifications.
+
+5.  YOUR DUTIES
+
+5.01.  You shall: A. You must find a suitable Center site within 90 days of signing the Franchise Agreement, unless we mutually agree otherwise, and attend (or if You are a corporation, Your majority shareholder will attend or Your Operating Principal or manager and one other employee) and successfully complete to AIRSOPURE's reasonable satisfaction AIRSOPURE's initial training program within 90 DAYS following execution of this Agreement.
+
+B. Obtain all federal, state and local business licenses, permits, certifications and bonds required for lawful operation of the Franchise and certify in writing to AIRSOPURE prior to opening that all such requirements have been obtained.
+
+C. Attend (with Your manager) and complete to AIRSOPURE's reasonable satisfaction such continuing training or educational programs as AIRSOPURE may from time to time require in writing. AIRSOPURE will not charge You for the training programs, but You shall be responsible for the costs of meals, lodging, travel and all other expenses incurred by You or Your employees in attending such programs.
+
+D. Actively promote AIRSOPURE's Products and services and exert Your best efforts to fully develop and maximize the market for AIRSOPURE's Products and services in Your Exclusive Territory.
+
+E. Devote Your full time (or if You are a corporation, designate a manager) to oversee the management and operation of the Center.
+
+F. Purchase and maintain and adequate supply for use in connection with the operation of the Franchise Business various copyrighted materials and forms which are the proprietary property of AIRSOPURE and which are an integral part of AIRSOPURE's system franchised hereunder. Other supplies and equipment necessary for operation of the Center may be purchased from third Party suppliers who meet AIRSOPURE's standards and specifications and have been approved in writing by AIRSOPURE in accordance with the procedures set forth in AIRSOPURE's Operating Manual, which may be amended from time to time by AIRSOPURE at its sole discretion.
+
+G. Purchase Products from AIRSOPURE for resale to customers in the Exclusive Territory in accordance with Section 6 below.
+
+H. Comply with all federal, state and local health and safety laws, rules and standards applicable to operation of the Franchise. You will forward copies of all notices of non-compliance by the Franchise with any law, rule, regulation or ordinance to AIRSOPURE within three days from receipt thereof accompanied by a summary of action You will take to comply.
+
+I. Maintain adequate working capital to operate the Franchise in accordance with the AIRSOPURE Operations Manual, as such may be amended by AIRSOPURE from time to time.
+
+J. Operate the Franchise in strict conformance with AIRSOPURE's policies, procedures, standards and specifications as may be prescribed by AIRSOPURE from time to time in the Operations Manual or otherwise in writing, including without limitation all changes specified by AIRSOPURE to its system or Products. .
+
+K. Display AIRSOPURE's Licensed Marks or logos on all marketing materials and at Your AIRSOPURE Center. AIRSOPURE reserves the
+
+                                       4
+
+
+
+
+
+right to alter or change its Licensed Marks, logos or trade dress at any time, and You agree to use such Licensed Marks, logos or trade dress as specified from time to time by AIRSOPURE promptly upon receipt of notice in writing from AIRSOPURE.
+
+L. Maintain and supply to third Parties upon request information to be supplied by AIRSOPURE regarding the availability of franchises.
+
+M. Provide AIRSOPURE and its representatives with unlimited access to FRANCHISEE'S offices or its AIRSOPURE Center (personal residence excluded), including Your books, computer system (for sales and products only, unless we are auditing You) and records of the Franchise, during normal business hours for purposes of conducting inspections to fully examine and evaluate Your methods of doing business, including interviews with Your employees and customers.
+
+N. You acknowledge and agree that such inspections and evaluations are necessary for AIRSOPURE to insure the maintenance of its quality standards, and You agree to fully cooperate with any reasonable request by AIRSOPURE in connection with such inspections and evaluations.
+
+O. Diligently and immediately take such steps as are deemed reasonably necessary by AIRSOPURE to correct any deficiencies detected by AIRSOPURE in Your adherence to AIRSOPURE's operating policies, procedures, standards and specifications.
+
+P. In the event You are a corporation, comply with the following:
+
+1. You will provide in Your Articles of Incorporation that Your sole corporate purpose is the operation of the Franchise.
+
+2. Every certificate for shares of stock in the corporation will include the following legend printed thereon if sole purpose of the corporation is to own and operate franchised business:
+
+"THE TRANSFER, PLEDGE OR ASSIGNMENT OF THE SHARES REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO THE TERMS AND RESTRICTIONS CONTAINED IN A FRANCHISE AGREEMENT BETWEEN THE HOLDER OF THESE SHARES AND AIRSOPURE FRANCHISE GROUP, INC."
+
+3. You agree to comply with the restrictions on transfer of ownership of the corporation set forth in Section 12.02 below.
+
+4. You will provide AIRSOPURE, prior to the opening of the Franchise, with copies of Your Articles of Incorporation, Bylaws and other governing documents, including all amendments thereto, and a copy of the resolutions by Your Board of Directors authorizing execution of this Agreement, certified by the Secretary of the corporation.
+
+5. You will provide AIRSOPURE with a current list of shareholders and will update such list from time to time as the list changes.
+
+6. Each shareholder of the corporation (if sole corporate purpose is the franchise), will execute a personal guarantee of Your performance under this Agreement and all amounts owed by You to AIRSOPURE in the form of attached Exhibit B.
+
+Q. The Parties recognize the importance of fully developing the market for Products in the Exclusive Territory, and a substantial part of the consideration for and inducement to AIRSOPURE to enter into this Agreement is Your agreement to devote Your best efforts to market, sell and support Products to customers located in Your Exclusive Territory. You agree to concentrate Your marketing efforts to customers located in Your Territory, and You agree not to advertise the Products using media or publications whose primary coverage area is outside Your Exclusive Territory.
+
+                                       5
+
+R. You may relocate Your Center at Your sole expense, within Your Exclusive Territory, provided You give us written notification at least 30 days prior to relocation stating the reasons for such a move.
+
+6.  PURCHASE AND SALE OF PRODUCTS
+
+6.01. You will purchase from AIRSOPURE and AIRSOPURE will sell to You for resale or lease at the Center to customers in the Exclusive Territory an opening order of Products having an aggregate cost to You of from $5,000.00 to $10,000.00, by mutual agreement, based on market conditions. Such purchase must be consummated in its entirety before You open Your Center, unless AIRSOPURE agrees in writing to extend such time period.
+
+6.02. After the opening order contemplated by the preceding Paragraph, You will from time to time place orders for Products with AIRSOPURE on the following basis:
+
+A. All orders for Products shall be accompanied by payment, unless at AIRSOPURE's sole discretion, other payment terms are permitted.
+
+B. All orders will be shipped freight collect unless freight is paid in advance by You.
+
+C. You will pay the prices then prevailing at the time AIRSOPURE receives each order. Such prices are subject to change at any time by AIRSOPURE.
+
+D. All merchandise will be shipped to You at the Center for resale to customers
+
+
+
+
+
+in the Exclusive Territory. You will sell Products only to end-user customers and not for resale. You will not sell or lease Products at any location other than within Your Exclusive Territory, engage in mail order sales of Products or supply Products to others for resale or lease at any other location.
+
+E. All orders for Products are subject to availability. In the event any Product is in short supply, AIRSOPURE shall have the right to allocate such Product on an equitable basis.
+
+F. You will not modify the Products, and You will not offer or carry any products or services other than AIRSOPURE's Products and services specified by AIRSOPURE without written approval from AIRSOPURE.
+
+G. Notwithstanding nationally advertised prices by AIRSOPURE, You may resell Products purchased under this Agreement at prices set by You. However, AIRSOPURE retains the right, to the extent permitted by law, to refuse to fill Your orders for Products if You fail to honor AIRSOPURE's suggested prices for the same Products sold by other franchise owners in Your region.
+
+7.  LICENSED MARKS
+
+7.01. AIRSOPURE represents with respect to the Licensed Marks that:
+
+A. AIRSOPURE is the owner of all right, title and interest in and to the Licensed Marks or has the right and license to use and grant a license to You to use the said Licensed Marks.
+
+B. AIRSOPURE will take all steps reasonably necessary to preserve and protect the ownership and validity in and to the Licensed Marks.
+
+7.02. With respect to Your licensed use of the Licensed Marks pursuant to this Agreement, You agree that:
+
+A. You shall use only the Licensed Marks designated by AIRSOPURE and shall use them only in the manner authorized and permitted by AIRSOPURE.
+
+B. You shall use the Licensed Marks only for the operation of the Franchise at the Authorized Location.
+
+                                       6
+
+C. During the term of this Agreement, You shall identify Yourself as the owner of the Franchise in conjunction with any use of the Licensed Marks, including, but not limited to, on invoices, order forms, receipts, business cards, contracts and at such conspicuous locations on the Center's premises or in the field as AIRSOPURE may specify. The identification shall be in a form which specifies Your name, followed by the term "Independent Franchise Owner" or such other identification as shall be approved by AIRSOPURE.
+
+D. You shall not use the Licensed Marks to incur any obligation or indebtedness on behalf of AIRSOPURE, and You shall not represent that Your Center is owned, operated by or affiliated with AIRSOPURE other than as a franchisee.
+
+E. You shall not use the Licensed Marks as part of Your corporate or other legal name, without the prior written consent of AIRSOPURE.
+
+F. You shall file an assumed name registration, and shall execute any documents deemed necessary by AIRSOPURE to obtain protection for the Licensed Marks or to maintain their continued validity and enforceability.
+
+7.03. You expressly understand and acknowledge that:
+
+A. As between the Parties hereto, AIRSOPURE, by its trademark License Agreement with Airsopure, Inc. is the licensor of all right, title and interest in and to the Licensed Marks and the goodwill associated with and symbolized by them.
+
+B. You shall not directly or indirectly contest the validity of the ownership of the Licensed Marks.
+
+C. Your use of the Licensed Marks pursuant to this Agreement does not give You any ownership interest or other interest in or to the Licensed Marks.
+
+D. Any and all goodwill arising from Your use of the Licensed Marks in the Franchise under AIRSOPURE's system shall inure solely and exclusively to the benefit of AIRSOPURE, and upon expiration or termination of this Agreement and the Franchise herein granted, no monetary amount shall be assigned as attributable to any goodwill associated with Your use of the Licensed Marks.
+
+E. The right and license to use the Licensed Marks granted hereunder to You is nonexclusive, and AIRSOPURE may use and grant franchises to others to use the Licensed Marks in any manner except as expressly provided otherwise herein.
+
+F. AIRSOPURE reserves the right to substitute different Licensed Marks for use in identifying the System and the businesses operating thereunder, and You agree to comply with AIRSOPURE's requirements relating thereto.
+
+7.04. You shall promptly notify AIRSOPURE of any unauthorized use of the Licensed Marks or marks confusingly similar thereto, any challenge to the validity of the Licensed Marks, or any challenge to AIRSOPURE's ownership of, or Your right to use, the Licensed Marks. You acknowledge that AIRSOPURE has the sole right to direct and control any administrative proceeding or litigation involving the Licensed Marks, including any settlement thereof. AIRSOPURE has the right, but not the obligation, to take action against uses by others that may constitute infringement of the Licensed Marks.
+
+
+
+
+
+7.05. Provided You have used the Licensed Marks in accordance with this Franchise Agreement and AIRSOPURE's Operations Manual, AIRSOPURE will defend You at AIRSOPURE's expense against any third Party claim, suit or demand involving the Licensed Marks and arising out of Your use thereof. In the event that You have not used the Licensed Marks in accordance with this Agreement, AIRSOPURE shall defend You, at Your expense, against such third Party claims, suits or demands.
+
+                                       7
+
+7.06. In the event of any litigation or administrative proceeding relating to the Licensed Marks, You shall execute any and all documents and do all acts as may, in the opinion of AIRSOPURE, be necessary to carry out such defense or prosecution, including, but not limited to, becoming a nominal Party to any legal action. Except to the extent that such litigation is the result of Your use of the Proprietary Marks in a manner inconsistent with the terms of this Agreement, AIRSOPURE agrees to reimburse You for its out-of-pocket costs in performing such acts, except that You shall bear the salary costs of its employees, and AIRSOPURE shall bear the cost of any judgment or settlement.
+
+8.  OPERATIONS MANUAL
+
+8.01. AIRSOPURE shall provide You with one copy of AIRSOPURE's Operations Manual covering the proper operating and marketing techniques and the standards and specifications for operation of the Franchise. You agree to fully comply with the Operations Manual in its entirety as an essential aspect of Your obligations under this Agreement. Failure to so comply shall be treated as a breach of this Agreement.
+
+8.02. You shall at all times treat the Operations Manual, all supplements and revisions thereto, any other operations manual, brochure or memorandum created for or approved for use in the operation of the Franchise and the information contained therein as the confidential and proprietary information of AIRSOPURE, and shall use all reasonable efforts to maintain the confidentiality of such information. You shall not at any time, without AIRSOPURE's prior written consent, copy, duplicate, record, or otherwise reproduce the foregoing materials, in whole or in part, nor otherwise make the same available to any unauthorized person. You may disclose such information and materials only to such of Your employees or agents, or others who must have access to it in connection with their employment or the performance of this Agreement, in which event You shall obtain the agreement of such persons and entities to maintain the confidentiality thereof. The Operations Manual shall remain at all times the sole property of AIRSOPURE.
+
+8.03. AIRSOPURE may from time to time revise the contents of the Operations Manual, and You expressly agree to comply with each new or changed standard, specification or procedure set forth therein. You shall at all times ensure that Your copy of the Operations Manual is kept current and up to date. In the event of any dispute as to the content of the Operations Manual, the terms of the master copy of the Operations Manual maintained by AIRSOPURE at AIRSOPURE's home office shall be controlling.
+
+9.  ACCOUNTING AND RECORDS
+
+9.01. During the term of this Agreement, You shall maintain and preserve, for at least five years from the date of their preparation, full, complete, and accurate, books, records and accounts in the form and manner prescribed by AIRSOPURE from time to time in the Operations Manual or otherwise in writing.
+
+9.02. You shall, at Your expense, submit to AIRSOPURE, by the 7th day of each month, a monthly statement on forms prescribed by AIRSOPURE accurately reflecting gross sales of the Franchise for the preceding calendar month. Each statement shall accompany Your monthly royalty and advertising fund fee payments and shall be signed by You attesting that it is true and correct.
+
+9.03. You shall, at Your expense, submit to AIRSOPURE an annual financial statement for the Franchise, which includes an income statement prepared in accordance with generally accepted accounting principals, within 90 days of the end of each fiscal year during the term hereof. Each statement shall be signed by You attesting that it is true and correct.
+
+9.04. You shall submit to AIRSOPURE for review and auditing such other forms, reports,
+
+                                       8
+
+records, information and data, as AIRSOPURE may reasonably request in writing.
+
+9.05. AIRSOPURE or its designated agents shall have the right at all reasonable times to examine and copy, at its expense, all books, records, receipts and tax returns of Yours related to the Franchise and, at its option, to have an independent audit made, and thereupon be allowed to search Your computer accounting files. If an inspection or audit should reveal that payments have been understated in any report to AIRSOPURE, then You shall immediately pay to AIRSOPURE the amount understated upon demand, in addition to interest from the date such amount was due until paid, at the prime rate being charged by Bank of America on the date the payment was due plus 2%, or the maximum rate permitted by law, whichever is less. If an inspection discloses an underpayment to AIRSOPURE of 2% or more of the total amount that should have been paid to AIRSOPURE, You shall, in addition to repayment of such understated amount with interest, reimburse AIRSOPURE for any and all costs and expenses incurred in connection with the inspection or audit (including, without limitation,
+
+
+
+
+
+reasonable accounting and attorneys' fees). The foregoing remedies shall be in addition to any other remedies AIRSOPURE may have, including without limitation, the remedies for default.
+
+10.  MARKETING AND ADVERTISING
+
+10.01. You shall submit to AIRSOPURE for review prior to use samples of all advertising and promotional materials that have not been previously approved by AIRSOPURE. AIRSOPURE shall notify You of its approval or disapproval within 7 days or less from the date of receipt by AIRSOPURE of such materials. Failure by You to obtain the prior approval in writing of AIRSOPURE for all advertising and promotional materials shall be a violation of this Agreement.
+
+10.02. AIRSOPURE has established an advertising fund (the "Fund") to build recognition of the Products and the Licensed Marks and to promote AIRSOPURE's Products and the Franchise. You shall participate in the Fund, in addition to Your obligation to conduct local advertising of the Franchise, on the basis described in Paragraph 3.01.D above.
+
+10.03. AIRSOPURE will administer the Fund as follows:
+
+A. The Fund shall be maintained in a separate bank account. Upon request by You, AIRSOPURE will provide an annual accounting of amounts spent from the Fund, including a reasonable allocation to cover AIRSOPURE's overhead expenses for administration and management of the Fund.
+
+B. AIRSOPURE may allocate amounts held in the Fund at its discretion as AIRSOPURE deems appropriate. You are not guaranteed that any particular amount or percentage of the Fund will be spent in Your local market.
+
+C. AIRSOPURE shall have the right to terminate the Fund at any time. However, the Fund will not be terminated until all moneys in the Fund have been expended for the purposes stated in Paragraph 10.02 above.
+
+D. AIRSOPURE may from time to time amend its policies or establish new policies and procedures for administration of the Fund.
+
+10.04. In addition to its monthly contribution to the Fund, You shall spend an amount equal to at least 2% of Your total monthly gross sales (as defined in Paragraph 3.01.C above) on local advertising in Your Exclusive Territory. You shall submit to AIRSOPURE a monthly report to accompany Your advertising fund fee and royalty fee payments accounting for and evidencing Your local advertising expenditures. Your local advertising shall comply with the procedures specified in Paragraph 10.01 above.
+
+                                       9
+
+11.  INSURANCE
+
+11.01. You shall procure and maintain in full force and effect during the term of this Agreement, at Your expense, insurance policies written by an insurance company satisfactory to AIRSOPURE in accordance with standards and specifications set forth in the Operations Manual or otherwise by AIRSOPURE in writing. Such policies shall name AIRSOPURE as an additional insured and shall include, at a minimum:
+
+A. Comprehensive general liability insurance in the amount of $1,000,000.00.
+
+B. Comprehensive automobile liability insurance, including collision, comprehensive, medical and liability to satisfy state law requirements.
+
+C. Additional coverage's and higher policy limits may be required from time to time by AIRSOPURE.
+
+11.02. At least 7 days prior to the opening of the Center and on each policy renewal date thereafter, You shall submit to AIRSOPURE copies of all policies and policy amendments. The evidence of insurance shall include a statement by the insurer that the policy or policies will not be canceled or materially altered without at least 30 days prior written notice to AIRSOPURE.
+
+11.03. Your obligation to obtain and maintain the foregoing policy or policies in the amounts specified shall not be limited in any way by reason of any insurance which may be maintained by AIRSOPURE, nor shall Your performance of that obligation relieve You of liability under the indemnity provisions set forth in Section 17 of this Agreement.
+
+11.04. Should You, for any reason, fail to procure or maintain the insurance required by this Agreement, AIRSOPURE shall have the right and authority (without, however, any obligation to do so) immediately to procure such insurance and to charge same to You, which charges, together with a reasonable fee for AIRSOPURE's expenses in so acting, shall be payable by You immediately upon notice. AIRSOPURE is not a licensed insurance agent or agency.
+
+12.  TRANSFER OF INTEREST
+
+12.01.   Transfer by AIRSOPURE
+
+A. AIRSOPURE shall have the right to transfer or assign all or any part of its rights or obligations in this Agreement to any person or legal entity. AIRSOPURE may sell or assign any of its assets, including without limitation the Licensed Marks, the system or Products, to any person or legal entity without liability or obligation to You.
+
+B. Nothing in this Agreement or otherwise shall obligate AIRSOPURE to remain in
+
+
+
+
+
+the indoor air purification business in the event AIRSOPURE should exercise its right to assign this Agreement or its assets which are the subject of this Agreement to a third Party.
+
+12.02.   Transfer by You A. You agree that the rights and duties set forth in this Agreement are personal to You, and that AIRSOPURE has entered into this Agreement and granted the Franchise rights and license hereunder in reliance on Your business skill, financial capacity, and character. Accordingly, You shall not sell, assign, transfer, convey, give away, mortgage or otherwise encumber any direct or indirect interest in the Franchise without the prior written consent of AIRSOPURE.
+
+B. Any purported assignment or transfer, by operation of law or otherwise, not having the prior written consent of AIRSOPURE shall be null and void and shall constitute a material breach of this Agreement.
+
+C. AIRSOPURE shall not unreasonably withhold its consent to a transfer of any interest in Your Franchise or in this Agreement if the following conditions have been met:
+
+1. All of Your accrued monetary and other
+
+                                       10
+
+obligations to AIRSOPURE and its subsidiaries, affiliates and suppliers shall have been satisfied;
+
+2. You shall not be in default of any provisions of this Agreement or any other agreement between You and AIRSOPURE or its affiliates or suppliers;
+
+3. You shall have executed a general release, in a form satisfactory to AIRSOPURE, of any and all claims against AIRSOPURE and its officers, directors, shareholders and employees.
+
+4. You shall remain liable for all obligations to AIRSOPURE in connection with the Franchise prior to the effective date of the transfer;
+
+5. The transferee shall enter into a written assignment in a form satisfactory to AIRSOPURE assuming and agreeing to discharge all of Your obligations under this Agreement;
+
+6. The transferee shall demonstrate to AIRSOPURE's satisfaction that the transferee meets AIRSOPURE's then existing requirements and qualifications for the granting of an AIRSOPURE Franchise;
+
+7. The transferee shall execute for a term ending on the expiration date of this Agreement the standard form franchise agreement then being offered to new franchisees and such other ancillary agreements and documents as AIRSOPURE may then require for the Franchise, which may include changes in required fee payments or other terms;
+
+8. The transferee shall agree to upgrade the Franchise to conform to the then current standards and specifications for AIRSOPURE franchises;
+
+9. Transferee and its employees shall complete such training programs as AIRSOPURE may reasonably require, at the transferee's expense;
+
+10. You shall pay AIRSOPURE a transfer fee of $1000.00 to cover AIRSOPURE's administrative expenses in connection with the transfer.
+
+12.03.   Right of First Refusal
+
+In the event You desire to sell the AIRSOPURE Center and Franchise rights and license granted herein, or any part of Your stock interest in a corporation that has been granted such rights, and receives a bona fide acceptable offer in writing, You agree to notify AIRSOPURE in writing of the terms and conditions of such offer. AIRSOPURE shall have the option, within 15 days after receipt of such written notice, to notify You that AIRSOPURE elects to purchase the rights and license granted herein or stock ownership on the same terms and conditions as the bona fide written offer. You agree to sell to AIRSOPURE on the same terms and conditions as the bona fide offer and to comply with all applicable laws relating to bulk transfers of assets. If AIRSOPURE fails to notify You of its election to exercise its right of first refusal granted herein within the thirty day period, then You may sell the franchise rights and license or the stock for the amount of the bona fide offer, subject to AIRSOPURE's rights under Section 12.02 above. Any material change in the terms or conditions of any offer prior to closing shall constitute a new offer subject to AIRSOPURE's right of first refusal described herein. If You fail to consummate the transaction within 30 days from the earlier of: (a) receipt of notice from AIRSOPURE that it elects not to exercise its right of first refusal, or (b) expiration of the 15 day period referred to herein, then You must resubmit the proposed transaction to AIRSOPURE, and AIRSOPURE shall have a new 15 day review period and right of first refusal.
+
+12.04.   Transfer Upon Death or Mental Incapacity Upon Your death or mental incapacity, or a person owning all or controlling interest in Your Franchise, AIRSOPURE shall consent to the transfer of such interest to Your spouse or heirs provided, in AIRSOPURE's sole determination, such person(s) meet AIRSOPURE's then existing requirements and qualifications for the granting of an AIRSOPURE Franchise. If the said transfer
+
+                                       11
+
+
+
+
+
+shall not be approved by AIRSOPURE, Your executor, administrator or personal representative shall transfer Your interest to a third Party approved by AIRSOPURE within 6 months after Your death or the determination of Your mental incapacity. If Your interest is not disposed of within 6 months after such death or mental incapacity, AIRSOPURE may terminate this Agreement.
+
+12.05.   Operation of Franchise by AIRSOPURE In order to prevent any interruption in the business that would cause harm to the Franchise or AIRSOPURE, You authorize AIRSOPURE, at its option but not its obligation, in the event that You are absent or incapacitated by reason of illness, death or otherwise and are not, in AIRSOPURE's sole judgment, able to operate the Franchise for any extended period of time, to operate and manage the Franchise for so long as AIRSOPURE deems necessary, without waiving any of AIRSOPURE's other rights and remedies under this Agreement. All monies from the operation of the Franchise during such period of operation by AIRSOPURE shall be kept in a separate account, and the expenses of AIRSOPURE during such period for operating the Franchise, including reasonable compensation of AIRSOPURE and its employees or representatives, shall be charged to such account. You agree to save harmless and fully indemnify AIRSOPURE and its employees and representatives for and against all claims, losses or actions in connection with the operation and management of the Franchise hereunder.
+
+12.06.   Non-Waiver of Claims AIRSOPURE's consent to a transfer of any interest in the Franchise granted herein shall not constitute a waiver of any claims it may have against You, nor shall it be deemed a waiver of AIRSOPURE's right to demand exact compliance with any of the terms of this Agreement by the transferee.
+
+13.  CONFIDENTIAL INFORMATION
+
+13.01 You shall not, during the term of this Agreement or thereafter, communicate, divulge, or use for the benefit of any other person or entity any confidential information, knowledge, or know-how concerning AIRSOPURE's system, the Products or the operation of the Franchise, including without limitation the Operations Manual. You shall divulge such confidential information only to such of Your employees or agents as must have access to it in order to operate the Franchise. Any and all information, trade secrets, knowledge, know-how, or other data concerning AIRSOPURE's system, the Products or which AIRSOPURE designates as confidential shall be deemed confidential for purposes of this Agreement, except information which You can demonstrate came to Your attention prior to disclosure thereof by AIRSOPURE, or which, at or after the time of disclosure by AIRSOPURE to You, had become or later becomes a part of the public domain, through publication or communication by others. You agree to use such proprietary information of AIRSOPURE only for operation of the Franchise Business.
+
+13.02. You acknowledge that the provisions of this Section 13 are and have been a primary inducement to AIRSOPURE to enter into this Agreement, and that any failure to comply with the requirements of Section 13.01 will cause AIRSOPURE irreparable injury without an adequate remedy at law; and You agree to pay all court costs and reasonable attorneys' fees incurred by AIRSOPURE in obtaining specific performance of, or an injunction against any violation of, the requirements of Section 13.01.
+
+14.  DEFAULT AND TERMINATION
+
+14.01. AIRSOPURE may, at its option, terminate this Agreement and all rights granted hereunder, without affording You any opportunity to cure the defaults, effective immediately upon receipt of notice by You, upon the occurrence of any of the following:
+
+A. You become insolvent or makes a general assignment for the benefit of creditors; or if a
+
+                                       12
+
+petition in bankruptcy is filed by You or such a petition is filed against and consented to by You; or if You are adjudicated a bankrupt; or if You are unable to pay commercial debts as they become due.
+
+B. You (or a principal shareholder if the Franchisee is a corporation) is convicted of a felony or any other crime or offense that is reasonably likely, in the sole opinion of AIRSOPURE, to adversely affect the goodwill or reputation of AIRSOPURE or the Licensed Marks.
+
+C. A judgment or consent decree is entered against You (or a principal shareholder if the Franchisee is a corporation) in a case involving allegations of fraud, racketeering, unfair or deceptive trade practices or similar allegations which, in AIRSOPURE's judgment, are likely to adversely affect AIRSOPURE, its Products, the Licensed Marks or the goodwill associated therewith.
+
+D. You or any partner or shareholder in You transfers any rights or obligations under this Agreement or any interest in You or in the Franchise to any third Party without AIRSOPURE's prior written consent.
+
+E. You intentionally disclose the contents of the Operations Manual or&bbsp;other trade secrets or confidential information provided to You by AIRSOPURE to any unauthorized person or fails to exercise reasonable care to prevent such disclosure.
+
+F. You maintain false books or records of the Franchise or knowingly make any material false statements or omission to AIRSOPURE in connection with Your
+
+
+
+
+
+application for the franchise granted herein or in connection with any reports submitted to AIRSOPURE, including without limitation the understatement of gross sales by more than 2%.
+
+G. You fail to commence business within 4 months following the execution of this Agreement.
+
+H. You (and Your manager) fail to attend any scheduled training program which AIRSOPURE has indicated is mandatory.
+
+I. You operate the Franchise in such a manner which causes a threat or danger to public health or safety.
+
+J. You receive 3 or more notices of default of this Agreement from AIRSOPURE for violations under Section 14.02 hereof.
+
+14.02. Except for violations of this Agreement listed in Section 13.01 above, or violations specifically provided for elsewhere in this Agreement, You shall have 30 days from receipt from AIRSOPURE of a written Notice of Termination (citing the reason(s) therefor) within which to remedy any default listed in this Section 13.02, or any other violation of this Agreement.
+
+A. You fail to pay promptly any monies owing to AIRSOPURE or its subsidiaries or affiliates when due, or to submit the financial information or reports required by AIRSOPURE under this Agreement.
+
+B. You fail to meet or comply with any standards, specifications or procedures prescribed by AIRSOPURE in this Agreement, the Operations Manual or otherwise specified in writing from time to time by AIRSOPURE.
+
+C. You are convicted, plead guilty or enter into a consent agreement for violation of any federal, state or local law, ordinance, rule or regulation that is reasonably likely, in the sole opinion of AIRSOPURE, to materially and unfavorably affect the Franchise or AIRSOPURE, the Licensed Marks or the goodwill associated therewith.
+
+D. You misuse or make any unauthorized use of the Proprietary Marks or otherwise impairs the
+
+                                       13
+
+goodwill associated therewith or AIRSOPURE's rights therein.
+
+E. You abandon the Franchise or fail to operate the Center during normal business hours without the consent in writing of AIRSOPURE.
+
+F. You fail to submit advertising or promotional materials to AIRSOPURE for approval in writing prior to use.
+
+14.03. No right or remedy of AIRSOPURE conferred herein shall be exclusive of any other right or remedy provided herein, at law or in equity, unless specifically provided otherwise in this Agreement or any amendment hereto.
+
+14.04. In the event this Agreement is terminated by AIRSOPURE for violation of this Agreement by You, AIRSOPURE shall have the right, at its option, to purchase Your interest in the tangible assets of the Franchise at their fair market value.
+
+15. OBLIGATIONS UPON TERMINATION
+
+15.01. Upon termination or expiration of this Agreement, this Agreement and all rights granted hereunder to You shall immediately terminate, and:
+
+A. You shall immediately cease to operate the Franchise and shall not thereafter, directly or indirectly, represent to the public or hold itself out as a present or former franchisee of AIRSOPURE.
+
+B. You shall immediately and permanently cease to use, by advertising or in any other manner whatsoever, the Licensed Marks of AIRSOPURE, any other identifying characteristics or trade dress of the system, and all confidential methods, procedures and techniques associated with the Franchise.
+
+C. You shall take such action as may be necessary to cancel any assumed name or equivalent registrations or listings in telephone or other directories which contain the names or Licensed Marks of AIRSOPURE, and You shall furnish AIRSOPURE with evidence satisfactory to AIRSOPURE of compliance with this obligation within 30 days after termination or expiration of this Agreement.
+
+D. You shall promptly pay all sums owing to AIRSOPURE and its subsidiaries and affiliates, including all damages, costs and expenses, including reasonable attorneys' fees, incurred by AIRSOPURE as a result of the default.
+
+E. You shall pay to AIRSOPURE all damages, costs and expenses, including reasonable attorneys' fees, incurred by AIRSOPURE subsequent to the termination or expiration of the Franchise herein granted in obtaining injunctive or other relief for the enforcement of any provisions of this Agreement.
+
+F. You shall immediately turn over to AIRSOPURE the Operations Manual, records, files, instructions, software, correspondence, and all other materials provided by AIRSOPURE related to the operation of the Franchise, and all copies thereof (all of which are acknowledged to be AIRSOPURE's property), and shall retain no copy or record of any of the foregoing, except only Your copy of this Agreement and any correspondence between the Parties, and any other documents which You reasonably need for compliance with any applicable provision of law.
+
+
+
+
+
+G. AIRSOPURE shall have the right, but not the duty, to be exercised by notice of intent to do so within 30 days after termination or expiration, to purchase any or all signs, advertising materials, supplies and inventory and any other items bearing AIRSOPURE's Licensed Marks, at Your cost or at fair market value, whichever is less. If the Parties cannot agree on the fair market value of such items, the Parties will select and share the expense of an independent appraiser to determine fair market value. With respect to any purchase by AIRSOPURE as provided herein, AIRSOPURE shall have the right to set off against the purchase price all amounts due from
+
+                                       14
+
+You under this Agreement.
+
+16. COVENANTS
+
+16.01. You covenant and agree (or if Your Franchise is a corporation Your controlling shareholder agrees) to supervise and devote Your best efforts to manage and operate the Franchise.
+
+16.02. You acknowledge that, pursuant to this Agreement, You will receive valuable specialized training and confidential and proprietary information of AIRSOPURE, including, without limitation, information regarding the operational, sales, promotional, and marketing methods and techniques of AIRSOPURE and its system. You covenant and agree that during the term of this Agreement, and subject to the post-termination provisions contained herein, You shall not, except as otherwise approved in writing by AIRSOPURE, either directly or indirectly:
+
+A. Divert or attempt to divert any business or customer of the Franchise to any competitor, or competing business, by direct or indirect inducement or otherwise, or do or perform, directly or indirectly, any other act injurious or prejudicial to AIRSOPURE or the goodwill associated with the Licensed Marks and Products.
+
+B. Employ or seek to employ any person who is at that time employed by AIRSOPURE or by another AIRSOPURE franchisee or induce such person to leave his or her employment.
+
+C. Own, maintain, engage in, be employed by, advise, consult, assist, invest in or have any interest whatsoever in any business or entity which competes with or offers products or services which are the same or similar to those of AIRSOPURE or the Franchise.
+
+16.03. You covenant and agree that You (or any shareholder if Your Franchise is a corporation) shall not, for a period of two years following termination of this Agreement for any reason, either directly or indirectly own, maintain, engage in, be employed by, advise, consult, assist, invest in or have any interest whatsoever in any business or entity which competes with or offers products or services which are the same or similar to those of AIRSOPURE or the Franchise within a radius of 25 miles of Your Exclusive Territory. In the event a court of competent jurisdiction should hold this covenant to be unreasonable or overly broad, the Parties agree to reduce the scope of such covenant to the maximum restriction permitted by law, and You agree to be bound by such less restrictive terms of this covenant. If requested by AIRSOPURE, You agree to obtain and provide to AIRSOPURE executed covenants containing terms equivalent to those contained herein from any employee of Yours who has received training from AIRSOPURE, and, if Your Franchise is a corporation, from any director or shareholder of Your corporation.
+
+16.04. AIRSOPURE covenants and agrees that the restrictions set forth above in Paragraphs 16.02.C and 16.03 shall not apply to ownership by You of less than a 5% beneficial interest in the outstanding equity securities of any publicly traded corporation, provided that You are not an employee, consultant or director of such corporation.
+
+16.05. You covenant and agree that its violation of any covenant contained herein would result in serious, immediate and irreparable injury to AIRSOPURE for which no adequate remedy at law will be available, and You consent, in addition to other remedies which may be available to AIRSOPURE, to the entry without opposition of an injunction prohibiting any conduct by You in violation of any covenant set forth herein.
+
+17. INDEMNIFICATION
+
+17.01. You agree to defend, indemnify and hold AIRSOPURE and its affiliates, directors, officers, employees and agents harmless from all claims, losses, lawsuits and expenses arising from or relating to the Franchise and Your operation thereof, except for: (i) any claims of infringement
+
+                                       15
+
+from third Parties due to Your use of the Licensed Marks, provided that You have used the said Licensed Marks as authorized by AIRSOPURE; and (ii) claims alleging that Products sold or leased by You are defective.
+
+17.02. AIRSOPURE agrees to defend, indemnify and hold You harmless from all claims, losses, lawsuits and expenses arising from or relating to: (i) any claims of infringement from third Parties due to Your use of the Licensed Marks, provided that You have used the Licensed Marks as authorized by AIRSOPURE; and (ii) claims alleging that Products sold or leased by You are defective.
+
+
+
+
+
+18. GENERAL PROVISIONS
+
+18.01. No failure of a Party to exercise any power reserved to it by this Agreement or to insist upon strict compliance by the other Party with any obligation or condition hereunder shall constitute a waiver of such Party's rights unless such waiver is in writing. Any waiver by either Party shall not constitute a waiver thereafter to demand exact compliance with any of the terms herein. Waiver by a Party of any particular default by the other Party shall not affect or impair such Party's rights with respect to any subsequent default of the same, similar or different nature; nor shall any delay, forbearance or omission of a Party to exercise any power or right arising out of any breach or default by the other Party of any of the terms, provisions, or covenants thereof, affect or impair such Party's right to exercise the same.
+
+18.02. Unforeseen Events
+
+Delays in the performance of any duties hereunder which are not the fault of and are beyond the ability of the Party to control, including without limitation fires, floods, natural disasters, acts of God, labor disputes, riots or other similar events, shall not constitute a default in the Party's performance of this Agreement, and the Parties agree to extend the time of performance for a reasonable period of time to allow for such delays.
+
+18.03. The relationship between the Parties is that of independent contractors. No partnership, joint venture, employment or relationship of principal and agent is intended, and You may not commit or bind AIRSOPURE to any obligation whatsoever.
+
+18.04. Any and all notices required or permitted under this Agreement shall be in writing and shall be delivered by any means which will provide evidence of the date received, to the respective Parties at the following addresses unless and until a different address has been designated by written notice to the other Party:
+
+Notices to AIRSOPURE: Airsopure International Group, Inc. 15400 Knoll Trail, Suite 200 Dallas, Texas 75248 Attn: John Potter, President
+
+Notices to You:
+
+- --------------------------------
+
+- --------------------------------
+
+- --------------------------------
+
+Any notice shall be deemed to have been given at the date and time it is received.
+
+18.05. This Agreement and the documents referred to herein constitute the entire Agreement between AIRSOPURE and You concerning the subject matter hereof, and supersede all prior agreements, oral or written. No amendment, change or variance from this Agreement shall be binding on either Party unless executed by both Parties in writing.
+
+18.06. Except as expressly provided to the contrary herein, each provision of this Agreement shall be considered severable; and if, for any reason, any provision herein is determined to be invalid under any law or by a court having valid jurisdiction, such shall not impair the operation of, or have any other effect upon, such other
+
+                                       16
+
+provisions of this Agreement, and the latter shall continue to be given full force and effect and bind the Parties hereto, and the invalid provision shall be deemed not to be a part of this Agreement.
+
+18.07. This Agreement takes effect upon its acceptance and execution by AIRSOPURE in the State of Texas, and shall be interpreted and construed under the laws of the State of Texas.
+
+18.08. The Parties agree that any action brought by either Party against the other in any court, whether federal or state, shall be brought within the State of Texas in the judicial district in which AIRSOPURE has its principal place of business and do hereby waive all questions of personal jurisdiction or venue for the purpose of carrying out this provision.
+
+18.09. If either Party is required to resort to legal process to enforce any provision of this Agreement, the prevailing Party will recover all costs, including reasonable attorneys fees, incurred in such legal proceeding.
+
+18.10. You represent to AIRSOPURE that You have conducted an independent investigation of the business franchised hereunder and recognizes that the business venture contemplated by this Agreement involves business risks, and that its success will be largely dependent upon Your ability as an independent business person. AIRSOPURE expressly disclaims the making of, and You acknowledge that You have not received, any representation or guarantee, express or implied, as to the potential volume, profits or success of the business venture contemplated by this Agreement.
+
+18.11. You acknowledge that You received a completed copy of this Agreement, the attachments hereto, if any, and agreements relating thereto, if any, at least 5
+
+
+
+
+
+business days prior to the date on which this Agreement was executed. You further acknowledge that You have received the Offering Circular, as required by the Federal Trade Commission, at least 10 business days prior to the date on which this Agreement was executed.
+
+18.12. This Agreement contains various headings, but it is agreed that such headings are for convenience only and shall not affect the meaning of the provisions of this Agreement.
+
+18.13. You acknowledge that You have read and understood this Agreement, the attachments hereto, if any, and agreements relating thereto, if any, and that AIRSOPURE has accorded You ample time and opportunity to consult with advisors of Your own choosing about the potential benefits and risks of entering into this Agreement.
+
+19. APPLICABLE LAW AND MEDIATION
+
+A. THE PARTIES AGREE TO SUBMIT ANY CLAIM, CONTROVERSY OR DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT (AND ATTACHMENTS) OR THE RELATIONSHIP CREATED BY THIS AGREEMENT TO NON-BINDING MEDIATION PRIOR TO BRINGING SUCH CLAIM, CONTROVERSY OR DISPUTE IN A COURT. THE MEDIATION SHALL BE CONDUCTED THROUGH EITHER AN INDIVIDUAL MEDIATOR OR A MEDIATOR APPOINTED BY A MEDIATION SERVICES ORGANIZATION OR BODY, EXPERIENCED IN THE MEDIATION OF DISPUTES IN THE AIR PURIFICATION SERVICE BUSINESS, AGREED UPON BY THE PARTIES AND, FAILING SUCH AGREEMENT WITHIN A REASONABLE PERIOD OF TIME AFTER EACH PARTY HAS NOTIFIED THE OTHER OF ITS DESIRE TO SEEK MEDIATION OF ANY CLAIM CONTROVERSY OR DISPUTE (NOT TO EXCEED 15 DAYS), THROUGH THE AMERICAN ARBITRATION ASSOCIATION IN ACCORDANCE THE RULES GOVERNING MEDIATION, AT AIRSOPURE CORPORATE HEADQUARTERS IN DALLAS, TEXAS. THE COSTS AND EXPENSES OF MEDIATION, INCLUDING COMPENSATION AND EXPENSES OF THE MEDIATOR, SHALL BE BORNE BY THE PARTIES EQUALLY. IF THE PARTIES ARE UNABLE TO RESOLVE THE CLAIM, CONTROVERSY OR DISPUTE 90 DAYS
+
+                                       17
+
+AFTER THE MEDIATOR HAS BEEN APPOINTED, THEN EITHER PARTY MAY SUBMIT SUCH CLAIM, CONTROVERSY OR DISPUTE TO A COURT IN ACCORDANCE WITH SECTION 19.B. BELOW NOTWITHSTANDING THE FOREGOING, EITHER PARTY MAY BRING AN ACTION (1) FOR MONEYS OWED, (2) FOR INJUNCTIVE RELIEF, OR (3) INVOLVING THE POSSESSION OR DISPOSITION OF, OR OTHER RELIEF RELATING TO, REAL PROPERTY IN A COURT HAVING JURISDICTION AND IN ACCORDANCE WITH SECTION 19.B. BELOW, WITHOUT SUBMITTING SUCH ACTION TO MEDIATION.
+
+B. WITH RESPECT TO ANY CLAIMS, CONTROVERSIES OR DISPUTES WHICH ARE NOT FINALLY RESOLVED THROUGH MEDIATION, YOU HEREBY IRREVOCABLY SUBMIT YOURSELF TO THE NONEXCLUSIVE JURISDICTION OF THE STATE COURTS OF DALLAS COUNTY, TEXAS AND THE FEDERAL DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS, DALLAS DIVISION. YOU HEREBY IRREVOCABLY AGREE THAT SERVICE OF PROCESS MAY BE MADE UPON YOU IN ANY EACH PROCEEDING RELATING TO OR ARISING OUT OF THIS AGREEMENT OR THE RELATIONSHIP CREATED BY THIS AGREEMENT BY ANY MEANS ALLOWED BY TEXAS OR FEDERAL LAW. VENUE FOR ANY SUCH LEGAL PROCEEDING SHALL BE DALLAS COUNTY, TEXAS; PROVIDED, HOWEVER WITH RESPECT TO ANY ACTION (1) FOR MONEYS OWED, (2) FOR INJUNCTIVE OR OTHER EXTRAORDINARY RELIEF OR (3) INVOLVING POSSESSION OR DISPOSITION OF; OR OFFER RELIEF RELATING TO, REAL PROPERTY, AIRSOPURE MAY BRING SUCH ACTION IN ANY STATE OR FEDERAL DISTRICT COURT WHICH HAS JURISDICTION. YOU HEREBY WAIVE ALL QUESTIONS OF PERSONAL JURISDICTION FOR TITLE PURPOSE OF CARRYING OUT THIS PROVISION. WITH RESPECT TO ALL CLAIMS, CONTROVERSIES, DISPUTES OR ACTIONS, THIS AGREEMENT SHALL BE INTERPRETED AND CONSTRUED UNDER TEXAS LAW (EXCEPT FOR TEXAS CHOICE OF LAW RULES).
+
+C. YOU AND AIRSOPURE ACKNOWLEDGE THAT THE PARTIES' AGREEMENT REGARDING APPLICABLE STATE LAW AND FORUM SET FORTH IN SECTION 19.B. ABOVE PROVIDE EACH OF THE PARTIES WITH THE MUTUAL BENEFIT OF UNIFORM INTERPRETATION OF THIS AGREEMENT AND ANY DISPUTE ARISING OUT OF THIS AGREEMENT OR THE PARTIES' RELATIONSHIP CREATED BY THIS AGREEMENT, EACH OF YOU AND AIRSOPURE FURTHER ACKNOWLEDGE THE RECEIPT AND SUFFICIENCY OF MUTUAL CONSIDERATION FOR SUCH BENEFIT.
+
+D. YOU AND AIRSOPURE ACKNOWLEDGE THAT THE EXECUTION OF THIS AGREEMENT OCCURRED IN DALLAS, TEXAS AND FURTHER ACKNOWLEDGE THAT THE PERFORMANCE OF CERTAIN OBLIGATIONS OF YOU ARISING UNDER THIS AGREEMENT SHALL OCCUR IN DALLAS, TEXAS.
+
+IN WITNESS WHEREOF, the Parties hereto have duly executed, sealed, and delivered this Agreement on the day and year first above written.
+
+AIRSOPURE:
+
+By:    ---------------------------------
+
+Title:       ------------------------------
+
+YOU:
+
+By:    ---------------------------------
+
+Title:       ------------------------------
+
+                                       18
+
+                                    EXHIBIT F
+
+
+
+
+
+                               PERSONAL GUARANTEE
+
+For value received, and in consideration of the execution by Airsopure International Group, Inc. ("Airsopure") of a Franchise Agreement with
+
+- ---------------------------------------- ("Franchisee"), The undersigned
+
+- ---------------------------------------- ("Guarantor") hereby unconditionally guarantees to Airsopure all indebtedness, obligations and liabilities, direct or indirect, matured or immatured, primary or secondary, certain or contingent, of Franchisee to Airsopure, now or hereafter owing or incurred. This Guarantee is an absolute, unconditional, unlimited and continuing guarantee of the full and punctual payment by Franchisee of the foregoing indebtedness, obligations and liabilities and not of their collectibility only. Upon any default by Franchisee in such full and punctual payment, the liabilities and obligations of the Guarantor hereunder shall, at Airsopure's option, become forthwith due and payable without demand or notice of any nature, all of which are expressly waived by the Guarantor.
+
+Airsopure may deal with Franchisee in such manner as Airsopure in its sole discretion deems fit, and Guarantor gives to Airsopure full authority, in its sole discretion, to do any or all of the following things: a) extend credit, make loans and afford other financial accommodations to Franchisee at such times, in such amounts and on such terms as Airsopure may approve; b) vary the terms and grant extensions or renewals of any present or future indebtedness of Franchisee to Airsopure; c) grant time, waivers and other indulgences in respect thereto; d) vary, exchange, release or discharge, wholly or partially, or delay in or abstain from perfecting and enforcing any security or guaranty or other means of obtaining payment; e) accept partial payments from Franchisee; f) release or discharge, wholly or partially, any endorser or guarantor; g) compromise or make any settlement or other arrangement with Franchisee.
+
+Guarantor waives notice of acceptance hereof or of any action taken or omitted by Airsopure in reliance hereon and any requirement that Airsopure be diligent or prompt in making demands hereunder, giving notice of any default by Franchisee or asserting any other right hereunder.
+
+No provision of this Guaranty can be changed, waived, discharged or terminated except by an instrument in writing signed by Airsopure and Guarantor, and no such waiver shall extend to, affect or impair any other right of Airsopure hereunder.
+
+This Unlimited Guarantee shall inure to the benefit of Airsopure and its successors and assigns, and shall be binding on the Guarantor and the Guarantor's successors, heirs and assigns.
+
+EXECUTED on this ____ day of ____________, 2000.
+
+- ---------------------------------------- GUARANTOR
+
+- ---------------------------------------- WITNESS
+
+                                   EXHIBIT G
+
+                            CONFIDENTIALITY AGREEMENT
+
+This Confidentiality and Noncompetition Agreement (the "Agreement") is made and entered into effective the _____day of ________________, 2000 by and between Airsopure International Group, Inc., a Nevada corporation, located at 15400 Knoll Trail, Suite 200, Dallas, Texas 75248 (the "Company") and
+
+- ----------------------------------------------- who resides at
+
+- -----------------------------------------------
+
+- -----------------------------------------------
+
+- -----------------------------------------------
+
+- ----------------------------------------------- (the "Associate").
+
+                                    RECITALS
+
+A. Company sells franchises for the operation of air purification system business which operate under the name and service mark "Airsopure" (the "Franchises");
+
+B. Company has developed a business method for operating Franchises utilizing certain Information, plans, methods, data, processes, marketing systems, techniques, operating procedures, trademarks, designs, information and know how of Company (the "Confidential Information"), and such Confidential Information may be further developed from time to time by Company:
+
+C. Company has established substantial goodwill and an excellent reputation with respect to the quality of services available, which goodwill and reputation have been and will continue to be of Major benefit to Company;
+
+
+
+
+
+D. Associate is or will become involved with Company, or a franchise of Company, in the capacity of an officer, partner, director or as beneficial owner of an Airsopure Franchise or an employee of a Franchise, and will become privileged to certain Confidential Information; and
+
+E. Associate and Company have reached an understanding with regard to nondisclosure by Associate of Confidential Information and Noncompetition by Associate with Company
+
+NOW THEREFORE, in consideration of the foregoing, the mutual promises contained herein and other good and valuable consideration, the receipt and sufficiency of which hereby are acknowledged, Associate and Company, intending legally to be bound, hereby agree as follows:
+
+1. CONFIDENTIAL INFORMATION. Associate and Company acknowledge that the business plan and methods used in connection with the operation of the Franchise which utilize Company's Confidential Information, are confidential, unique, constitute the exclusive property of Company and are trade secrets of Company. Associate acknowledges that any disclosure of the Confidential Information would be wrong and would cause irreparable injury and harm to Company. Associate further acknowledges that Company has expended a great amount of effort and money in obtaining and developing the Confidential Information, the Company has taken numerous precautions to guard the secrecy of the Confidential Information and that it would be very costly for competitors to acquire or duplicate the Confidential Information.
+
+2. OPERATIONS MANUAL AS TRADE SECRET It is understood that Confidential Information, constituting "trade secret", as used in this Agreement is deemed to include, without initiation, any and all information contained in the Franchise Operations Manual, which may be provided AS one or more separate manuals, or written instructional guides, as the same are changed or supplemented from time to time, and any information of whatever nature which gives to Company an opportunity to obtain an advantage over its competitors who do not have access to, know or use such lists, written materials or information.
+
+3. CONFIDENTIAL INFORMATION. Associate shall not at any time, publish, disclose, divulge or in any manner communicate to any person, firm' corporation, association. partnership or any other entity whatsoever or use, directly or indirectly, for its own benefit or for the benefit of any Person, firm, corporation or other entity, other than the use of Company, any of the Confidential Information of Company or its Affiliates.
+
+4. NO INTERFERENCE WITH BUSINESS. During the term of this Agreement, neither Associate nor any member of his or her immediate finally shall divert or attempt to divert: I) any business related to, or any customer or prospective customer of; the Franchise by direct inducement or otherwise, or 2) the employment of Company or another franchisee licensed by Company,
+
+                                       1
+
+to any Competitive Business by any direct inducement or otherwise.
+
+5. REMEDIES. Associate hereby acknowledges and agrees that in the event of any violations of this Agreement, Company shall be authorized and entitled, without posting a bond to obtain from any court of competent jurisdiction, preliminary and permanent injunctive relief as well as an equitable accounting of all profits or benefits arising out of any such violation, which rights and remedies shall be cumulative and in addition to any rights or remedies to which Company may be entitled.
+
+6. EFFECT OF WAVIER. The waiver by Associate or company of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach thereof
+
+7. BINDING EFFECT. This Agreement shall be binding upon and inure to the benefit of Associate and Company and their respective heirs, executors, representatives successors and assigns.
+
+8. ENTIRE AGREEMENT. This instrument contains the entire agreement of Associate and Company relating to the matters set forth here It may not be changed orally, but only by an agreement in writing, signed by the party against whom enforcement of any waiver, change modification, extension or discharge is sought.
+
+9. GOVERNING LAW. This instrument shall be governed by and construed under the laws of the State of Texas.
+
+10. JURISDICTION AND VENUE. In the event of a breach or threatened breach by Associate of this Agreement, Associate hereby irrevocably submits to the jurisdiction of the State District Court in Dallas County, Texas and the Federal District Court for the Northern District of Texas, and irrevocably agrees that venue for any action or proceeding shall be in Dallas County, Texas. Notwithstanding the foregoing, in the event that the laws of the state where, Associate resides require that the jurisdiction or venue be elsewhere, then such other states laws shall control. but only to the extent that such other state's laws so require.
+
+11. SEVERABILITV. Should anyone or more of the provisions hereof be determined to be illegal or unenforceable, all other provisions hereof shall be given separately therefrom and shall not be affected thereby.
+
+12. COST OF ENFORCEMENT. In any action at law or in equity to enforce any of the provisions or rights under this Agreement, the unsuccessful party in such
+
+
+
+
+
+litigation as determined by the court in a final judgment or decree, shall pay the successful party or parties all costs, expenses and reasonable attorney's fees incurred therein by such arty or parties (including without Initiation such as costs, expenses and fees on any appeals), plus, if applicable, interest at the highest rate allowable by law, accruing from the date of the breach of this Agreement. If such successful party shall recover judgement in any such action or proceeding, such costs, expenses. attorney's fees and interest shall be included as part of such judgment.
+
+IN WITNESS WHEREOF, the parties hereto have signed this Agreement on the date first above written.
+
+FOR AIRSOPURE (COMPANY):
+
+- --------------------------------------------
+
+FOR FRANCHISEE OF AIRSOPURE:
+
+- --------------------------------------------
+
+ASSOCIATE OF FRANCHISEE:
+
+- --------------------------------------------
+
+ASSOCIATE'S WORK CAPACITY:
+
+- --------------------------------------------
+
+                                       2

full_contract_txt/ALCOSTORESINC_12_14_2005-EX-10.26-AGENCY AGREEMENT.txt

@@ -0,0 +1,85 @@
+Exhibit 10.26
+
+AGENCY AGREEMENT
+
+THIS AGENCY AGREEMENT, dated November 9, 2005 ("Agreement"), between General Electric Capital Corporation, a Delaware corporation (together with its successors and assigns, if any, "Lessor"), and Duckwall-Alco Stores, Inc., a Kansas corporation (the "Company"). Capitalized terms not defined herein shall have the meanings assigned to them in the Lease (as that term is defined below).
+
+RECITALS:
+
+WHEREAS, Lessor and the Company have entered into a Master Lease Agreement dated November 9, 2005 wherein Lessor, as the lessor, has agreed to lease certain items of equipment to the Company (the Master Lease Agreement and all Schedules entered into from time to time thereunder are hereinafter collectively referred to as the "Lease"; and all equipment leased thereunder are hereinafter collectively referred to as the "Equipment"); capitalized terms used herein but not otherwise defined shall have the meanings as provided in the Lease; and
+
+WHEREAS, Lessor desires to appoint the Company its agent to order, receive and, in the name and on behalf of Lessor, the Equipment;
+
+NOW, THEREFORE, in consideration of the above premises and the mutual promises contained herein, as well as other good and valuable considerations, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:
+
+ARTICLE I  GENERAL UNDERTAKING
+
+Section 1.01 Appointment. Lessor hereby appoints the Company, and the Company hereby agrees to accept such appointment, as the agent of Lessor, without any fee for acting as such agent, pursuant to the terms and conditions of this Agreement, for the purpose of ordering and, subject to the conditions set forth in Section's 2.01 and 2.05 hereof, accepting Equipment on Lessor's behalf for leasing to the Company under the Lease from the respective supplier thereof (each a "Supplier" and collectively, the "Suppliers"). It is specifically agreed that all of the power and authority vested to the Company herein shall be subject to any modifications as may from time to time be made by Lessor.
+
+Section 1.02 Powers. Except as may be otherwise expressly provided in this Agreement, the Company is hereby granted the authority to act, and hereby agrees to act, on behalf of Lessor and in the name of Lessor, to the extent necessary to carry out its duties under this Agreement.
+
+Section 1.03 Master Lease. This Agreement is entered into in connection with and subject to the terms of the Lease and in the event of a conflict between the terms of this Agreement and the Lease, the Lease shall control. The Company and Lessor may from time to time hereafter enter into Equipment Schedules to the Lease, and it is the intent of the parties that this Agreement facilitate the leasing of Equipment under the Lease. EXCEPT AS PROVIDED IN ANY OTHER AGREEMENT, NOTHING IN THIS AGREEMENT SHALL BE OR SHALL BE DEEMED TO BE, A COMMITMENT ON THE PART OF EITHER THE COMPANY OR LESSOR TO EXECUTE OR OTHERWISE ENTER INTO ANY EQUIPMENT SCHEDULES AFTER THE DATE OF THIS AGREEMENT.
+
+ARTICLE II  DUTIES OF AGENT
+
+Section 2.01 Equipment Orders. Upon the written acknowledgment by the Company and Lessor of each jointly approved purchase agreement, purchase order or invoice ("Purchase Order"), the Company, pursuant to the agency granted to it by Lessor in Article I hereof, may order, receive, accept the Equipment to be leased in accordance with the Economic Terms (as hereafter defined and described).
+
+Upon and as of the date of acceptance of the Equipment by the Company and satisfaction of the conditions precedent provided for in the Lease: (a) Lessor shall be unconditionally obligated to purchase such Equipment pursuant to the terms of the applicable Purchase Order and to lease such Equipment to the Company pursuant to the terms and conditions of the Lease and the applicable completed Schedule; and (b) the Company shall be unconditionally obligated to lease such Equipment from Lessor pursuant to the terms and conditions of the Lease and the applicable completed Schedule. The leasing of Equipment pursuant to this Agreement shall be in accordance with the Economic Terms set forth in Section 2.05 hereof, and upon delivery of the Equipment from any Supplier shall be deemed to be leased pursuant to this Agreement and the Lease and be subject to all of the provisions of the Lease, including without limitation, the insurance and indemnity provisions of the Lease. Notwithstanding any provision to the contrary herein, the Company's ability to act as Lessor's agent hereunder, and to unconditionally obligate Lessor to purchase Equipment pursuant to such agency, shall be limited by the following: (i) the Company must disclose to all Suppliers that it is ordering the Equipment as agent for Lessor; (ii) all of the Equipment ordered and/or accepted hereunder must meet at least one of the general description categories contained in Section 2:05; (iii) the aggregate Purchase Price for all Equipment purchased in connection with any Schedule must be less than, or equal to, the Maximum Aggregate Capitalized Lessor's Cost specified in Section 2:05; (iv) the Equipment must be delivered to, and accepted by, the Company on or before the Last Delivery Date specified in Section 2:05; (v) the Purchase Price of each unit of Equipment must not be more than the then current Fair Market Value of such Equipment; (vi) each unit of Equipment must qualify for all the Tax Benefits described in the applicable Schedule in the hands of Lessor upon the Company's acceptance thereof from the Supplier and (vii) with respect to any documentation, technical or confidential business information and/or software relating to the Equipment (collectively, "Software"), the Purchase Order will grant Lessor a license to use the Software and will allow Lessor to grant a sublicense to the Company to use such Software pursuant to the Lease and will allow Lessor to grant a sublicense to a third party after a termination or the expiration of the Lease in the event the Company does not elect to exercise any purchase option that may be provided for in the Lease; and (viii) all conditions precedent set forth in the Lease, including the delivery and execution of the Schedule and the Certificate of Acceptance, must be completed by no later than the Last Basic Term Commencement Date specified in Section 2.05.
+
+
+
+
+
+The Company additionally agrees that all Purchase Orders executed by the Company as Lessor's agent hereunder shall: (A) condition Lessor's obligation to pay for and purchase the Equipment on the Company's acceptance of such Equipment; (B) not permit passage of title or risk of loss for the Equipment earlier than such acceptance by the Company; (C) not permit the Supplier or any other person or entity to retain any security in, or lien on, any of the Equipment; and (D) otherwise be on terms and conditions acceptable to Lessor in its sole discretion.
+
+Section 2.02 Receipt of and Payment for Equipment. With respect to any Equipment ordered by the Company as agent for Lessor, the Company agrees to perform all obligations of the purchaser in the time and manner required by the applicable Purchase Order.
+
+Section 2.03 Payment of Purchase Price. On or before the Lease Commencement Date for any Schedule, the Company shall present to Lessor documentation ("Purchase Documentation"), in form and substance satisfactory to Lessor in its sole discretion, which (i) describes all units of Equipment ordered, received and accepted by the Company as agent for Lessor in connection with such Schedule, and (ii) if Company has paid any Supplier for any of the Equipment, includes evidence of the Purchase Price paid to Supplier for each such unit of Equipment and of passage of title thereto to Lessor. Upon the latter of (A) Lessor's receipt of the Purchase Documentation or (B) the satisfaction of all conditions precedent on or after the applicable Lease Commencement Date, Lessor shall pay the Supplier or reimburse the Company, as the case may be, for the aggregate Purchase Price for all Equipment purchased hereunder in connection with such schedule.
+
+Section 2.04 Books and Records. The Company shall maintain full and accurate books and records of all Equipment orders, receipts and All such books and records shall be maintained in a form acceptable to Lessor in its sole discretion. Such books and records shall be open for inspection and examination by Lessor and its respective representatives and/or accountants during the Company's normal business hours.
+
+Section 2.05 Economic Terms. The Company and the Lessor hereby agree that Schedules entered into pursuant to this Agency Agreement shall conform with the following "Economic Terms":
+
+1. Maximum Aggregate Capitalized Lessor's Cost:  $14,500,000.00
+
+2. Basic Term Lease Rate Factor:  To be mutually agreed upon by Company and Lessor
+
+3. Basic Term (No. of Months):  To be mutually agreed upon by Company and Lessor
+
+4. Equipment Type:  To be mutually agreed upon by Company and Lessor
+
+5. Agency Agreement Expiration Date and Last Delivery Date:  October 31, 2006
+
+ARTICLE III TERMINATION
+
+Section 3.01 Termination.
+
+(a) So long as no default exists and is continuing hereunder or under the Lease, either party may terminate this Agreement at any time upon ____________ (______30________) days written notice to the other party; provided however that such termination shall not act as a termination of any Equipment leased hereunder.
+
+(b) In the event the Company is in default hereunder or under the Lease, Lessor may elect to terminate this Agreement immediately, which shall be effective upon the receipt of written notice thereof by the Company.
+
+(c) Any termination under this Section 3.01 shall automatically result in the immediate revocation of all authority vested in the Company under this Agreement to order, accept or pay for any Equipment on behalf of Lessor.
+
+IN WITNESS WHEREOF, the parties hereto have caused their duly authorized representatives to execute and deliver this Agreement on the date first above written.
+
+General Electric Capital Corporation Duckwall-Alco Stores, Inc.  By: /s/ Susan Lyndon By: /s/ Richard A. Mansfield
+
+Title: Manager Portfolio Admin Title: V.P./CFO
+
+AGENCY AGREEMENT INSTRUCTIONS   BEFORE EQUIPMENT IS ORDERED:
+
+  •  When issuing a Purchase Order or Sales Agreement for Equipment in connection with the Agency Agreement, incorporate the following in the Purchase Order or Sales Agreement:
+
+  Duckwall-Alco Stores, Inc. is ordering the following equipment as Agent for:
+
+
+
+
+
+  General Electric Capital Corporation  311 North Bayshore Drive  Safety Harbor, FL 34695  Attn: Teresa Schafer
+
+• All invoices should indicate that General Electric Capital Corporation is the "Sold to" party at the above address, and that Duckwall-Alco Stores, Inc. is the "Ship to" party for delivery.
+
+• The invoices should be mailed directly to General Electric Capital Corporation. Also, all invoices should reference the appropriate Purchase Order/Sales Agreement Number.
+
+General Electric Capital Corporation will also require a complete set of Lease documentation prior to funding. These documents may include a Schedule and a Certificate of Acceptance. The full terms and conditions of the lease contract are set forth in the Master Lease Agreement and Equipment Schedule.

full_contract_txt/ALLISONTRANSMISSIONHOLDINGSINC_12_15_2014-EX-99.1-COOPERATION AGREEMENT.txt

@@ -0,0 +1,183 @@
+Exhibit 99.1
+
+COOPERATION AGREEMENT
+
+This Cooperation Agreement (this "Agreement") dated December 12, 2014, is by and among the persons and entities listed on Schedule A (collectively, the "ValueAct Group", and individually a "member" of the ValueAct Group), Allison Transmission Holdings, Inc. (the "Company") and Gregory P. Spivy, in his individual capacity and as a member of the ValueAct Group (the "ValueAct Designee").
+
+WHEREAS, the ValueAct Group currently beneficially owns 19,125,204 shares of the common stock, par value $0.01 per share, of the Company (the "Common Stock"), which represents approximately 10.77% of the issued and outstanding shares of Common Stock.
+
+WHEREAS, the Nominating and Governance Committee of the Board (the "Nominating Committee") and the Company's Board of Directors (the "Board") have considered the qualifications of the ValueAct Designee and conducted such review as they have deemed appropriate.
+
+WHEREAS, the Board has determined that it is in the best interests of the Company to appoint the ValueAct Designee on the terms set forth in this Agreement.
+
+NOW, THEREFORE, In consideration of and reliance upon the mutual covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
+
+1. Board Nomination.
+
+(a) Subject to the satisfactory completion of the Company's customary background check, the Board shall appoint the ValueAct Designee to serve as a director beginning within ten (10) calendar days following receipt of the ValueAct Group's written request to the Company to have the ValueAct Designee appointed to the Board; provided that, at such time, the Board does not conclude in good faith and based on the written opinion of outside legal counsel that such appointment would constitute a breach of the directors' fiduciary duties. If the ValueAct Designee is appointed to the Board pursuant to this Section 1(a), the Company shall include the ValueAct Designee as a Class I Director, which term expires at the Company's 2016 annual meeting of stockholders.
+
+(b) As a condition to the ValueAct Designee's appointment to the Board, the ValueAct Group, including the ValueAct Designee, agrees to provide to the Company information required to be or customarily disclosed for directors, candidates for directors, and their affiliates and representatives in a proxy statement or other filings under applicable law or stock exchange rules or listing standards, information in connection with assessing eligibility, independence and other criteria applicable to directors or satisfying compliance and legal obligations, and such other information as reasonably requested by the Company from time to time with respect to the ValueAct Group and the ValueAct Designee.
+
+(c) The ValueAct Designee agrees that, at all times while serving as a member of the Board, he will (i) meet all director independence and other standards of the Company, the New York Stock Exchange and the Securities and Exchange Commission ("SEC") and applicable provisions of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder, including Rule 10A- 3; and (ii) be qualified to serve as a director under the Delaware General Corporation Law (the "DGCL") (clauses (i) and (ii), the "Conditions"). The ValueAct Designee will promptly advise the Nominating Committee if he ceases to satisfy any of the Conditions.
+
+(d) At all times while serving as a member of the Board, the ValueAct Designee shall comply with all policies, procedures, processes, codes, rules, standards and guidelines applicable to Board members, including the Company's Code of Business Conduct, Insider Trading Policy, Executive Stock Ownership Policy as in effect on the date hereof, and Corporate Governance Guidelines, and (except as permitted by the Confidentiality Agreement (as defined in Section 7 below)) preserve the confidentiality of Company business and information, including discussions or matters considered in meetings of the Board or Board committees to the extent not disclosed publicly by the Company.   1
+
+
+
+
+
+(e) So long as the ValueAct Group collectively beneficially owns, in the aggregate, at least 7.5% of the outstanding Common Stock, if, during the Covered Period, a vacancy on the Board is created as a result of the ValueAct Designee's death, resignation, disqualification or removal, then the ValueAct Group and the Company (acting through the Board) shall work together in good faith to fill such vacancy or replace such nominee with an individual who (A) meets the Conditions, (B) meets the historical standards and criteria applied by the Company in nominating and appointing directors, and (C) is otherwise mutually acceptable (in each of their sole discretion) to the ValueAct Group and the Company, and thereafter such individual shall serve and/or be nominated as the "ValueAct Designee" under this Agreement.
+
+(f) The Company's obligations hereunder shall terminate immediately, and the ValueAct Designee shall promptly offer to resign from the Board, and any committee of the Board on which he then sits (and, if requested by the Company, promptly deliver his written resignation to the Board (which shall provide for his immediate resignation) it being understood that it shall be in the Board's sole discretion whether to accept or reject such resignation) if: (i) members of the ValueAct Group, collectively, cease to beneficially own at least 7.5% of the Company's outstanding Common Stock; (ii) the ValueAct Designee ceases to satisfy the conditions set forth in clauses (c)-(d) above; (iii) a member of the ValueAct Group, including the ValueAct Designee, otherwise ceases to comply or breaches any of the terms of this Agreement or the Confidentiality Agreement; or (iv) the employment of the ValueAct Designee with the ValueAct Group is terminated for any reason. The ValueAct Group agrees to cause the ValueAct Designee to resign from the Board if the ValueAct Designee fails to resign if and when requested pursuant to this Section 1(f). Notwithstanding the foregoing, in the event of the occurrence of an event set forth in subsection (ii) or (iv) above, the provisions of Section 1(e) must be complied with before the Company's obligations hereunder may terminate.
+
+(g) The percentage thresholds set forth in clauses (e) and (f) above shall not be deemed unsatisfied to the extent a failure to maintain the specified ownership thresholds is the result of share issuances or similar Company actions that increase the number of outstanding shares of Common Stock.
+
+2. Standstill.
+
+(a) Each member of the ValueAct Group agrees that, during the Covered Period, (unless specifically requested in writing by the Company, acting through a resolution of a majority of the Company's directors not including the ValueAct Designee), it shall not, and shall cause each of its Affiliates or Associates (as such terms are defined in Rule 12b-2 promulgated by the SEC under the Exchange Act) (collectively and individually, the "ValueAct Affiliates," provided that no portfolio company of the ValueAct Group shall be deemed a "ValueAct Affiliate" so long as such portfolio company (A) has not discussed any of the actions set forth in this subsection (a) with the ValueAct Group or the ValueAct Designee, (B) has not received from the ValueAct Group or the ValueAct Designee information concerning the Company or its business, and (C) is not acting at the request of, in coordination with or on behalf of the ValueAct Group or the ValueAct Designee), not to, directly or indirectly, in any manner, alone or in concert with others:
+
+(i) make, engage in, or in any way participate in, directly or indirectly, any "solicitation" of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act) or consents to vote, or seek to advise, encourage or influence any person with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, "securities of the Company") for the election of individuals to the Board or to approve stockholder proposals, or become a "participant" in any contested "solicitation" for the election of directors with respect to the Company (as such terms are defined or used under the Exchange Act) (other than a "solicitation" or acting as a "participant" in support of all of the nominees of the Board at any stockholder meeting) or make or be the proponent of any stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
+
+(ii) form, join, encourage, influence, advise or in any way participate in any Group (as such term is defined in Section 13(d)(3) of the Exchange Act) with any persons who are not ValueAct Affiliates   2
+
+
+
+
+
+with respect to any securities of the Company or otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Company in any voting trust or similar arrangement, or subject any securities of the Company to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in this Agreement;
+
+(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any group of persons that would be treated as a single "person" under Section 13(d) of the Exchange Act), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that would result in the ValueAct Group (together with the ValueAct Affiliates) owning, controlling or otherwise having any beneficial or other ownership interest in more than 12% in the aggregate of the shares of Common Stock outstanding at such time; provided, that, nothing herein will require Common Stock to be sold to the extent the ValueAct Group and the ValueAct Affiliates, collectively, exceed the ownership limit under this paragraph as the result of a share repurchase or similar Company actions that reduces the number of outstanding shares of Common Stock;
+
+(iv) sell, offer or agree to sell directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any rights decoupled from the underlying securities of the Company held by the ValueAct Group or any ValueAct Affiliate to any person or entity not a (A) party to this Agreement, (B) member of the Board, (C) officer of the Company or (D) ValueAct Affiliate (any person or entity not set forth in clauses (A)-(D) shall be referred to as a "Third Party"), that would knowingly result in such Third Party, together with its affiliates and associates, owning, controlling or otherwise having any beneficial or other ownership interest in the aggregate of more than 4.9% of the shares of Common Stock outstanding at such time, except in a transaction approved by the Board;
+
+(v) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an "Extraordinary Transaction"), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not preclude the tender by the ValueAct Group or a ValueAct Affiliate of any securities of the Company into any tender or exchange offer or vote by the ValueAct Group or a ValueAct Affiliate of any securities of the Company with respect to any Extraordinary Transaction;
+
+(vi) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including, without limitation, any put or call option or "swap" transaction) with respect to any security (other than a broad- based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company;
+
+(vii) (A) call or seek to call any meeting of stockholders, including by written consent, (B) seek representation, on or nominate any candidate to, the Board, except as set forth herein, (C) seek the removal of any member of the Board, (D) solicit consents from stockholders or otherwise act or seek to act by written consent, (E) conduct a referendum of stockholders, or (F) make a request for any stockholder list or other Company books and records, whether pursuant to Section 220 of the DGCL or otherwise;
+
+(viii) take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board; (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company; (C) any other material change in the Company's management, business or corporate structure; (D) seeking to have the Company waive or make amendments or modifications to the Company's Certificate of Incorporation or Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person; (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange; or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;   3
+
+
+
+
+
+(ix) disparage or cause to be disparaged the Company or Affiliates thereof, any of its current or former officers, or directors;
+
+(x) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Board, the Company, its management, policies or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;
+
+(xi) enter into any substantive discussions, negotiations, agreements, or understandings with any Third Party with respect to any of the foregoing, or advise, assist, knowingly encourage or seek to persuade any Third Party to take any action or make any statement with respect to any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
+
+(xii) request, directly or indirectly, any amendment or waiver of the foregoing.
+
+The foregoing provisions of this Section 2(a) shall not be deemed to prohibit the ValueAct Group or its directors, officers, partners, employees, members or agents (acting in such capacity) ("Representatives") from communicating privately with the Company's directors, officers or advisors so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications.
+
+(b) Each member of the ValueAct Group shall cause all shares of Common Stock beneficially owned, directly or indirectly, by it, or by any ValueAct Affiliate, to be present for quorum purposes and to be voted, at the Company's annual and special stockholder meetings and at any adjournments or postponements thereof, and further agrees that at the 2015 annual stockholder meeting they shall vote in favor of (i) all directors nominated by the Board for election at such meeting and (ii) in accordance with the Board's recommendation with respect to any proposals for the election of directors that may be the subject of stockholder action at such meeting.
+
+(c) The ValueAct Group acknowledges that the ValueAct Designee shall have all of the rights and obligations, including fiduciary duties to the Company and its stockholders, of a director under applicable law and the Company's organizational documents while the ValueAct Designee is serving on the Board. Notwithstanding the foregoing, nothing in this Section 2 shall limit any actions that may be taken by the ValueAct Designee acting solely as a director of the Company consistent with his fiduciary duties as a director of the Company (it being understood and agreed that the ValueAct Group and the ValueAct Affiliates shall not seek to do indirectly through the ValueAct Designee anything that would be prohibited if done by the ValueAct Group or the ValueAct Affiliates).
+
+For purposes of this Agreement the terms "person" or "persons" shall mean any individual, corporation (including not-for-profit), general or limited partnership, limited liability or unlimited liability company, joint venture, estate, trust, association, organization or other entity of any kind or nature.
+
+3. Representations of the Company. The Company represents and warrants as follows: (a) the Company has the power and authority to execute, deliver and carry out the terms and provisions of this Agreement and to consummate the transactions contemplated hereby; and (b) this Agreement has been duly and validly authorized, executed and delivered by the Company, constitutes a valid and binding obligation and agreement of the Company and is enforceable against the Company in accordance with its terms.
+
+4. Representations of the ValueAct Group. The ValueAct Group, jointly and severally, represent and warrant as follows: (a) the ValueAct Group has the power and authority to execute, deliver and carry out the terms and provisions of this Agreement and to consummate the transactions contemplated hereby; (b) this Agreement has been duly and validly authorized, executed and delivered by the ValueAct Group, constitutes a valid and binding obligation and agreement of the ValueAct Group and is enforceable against the ValueAct Group in accordance with its terms; and (c) the ValueAct Group, together with the ValueAct Affiliates, beneficially owns, directly or indirectly, an aggregate of 19,125,204 shares of Common Stock and such shares of Common Stock constitute all of the Common Stock beneficially owned by the ValueAct Group and the ValueAct Affiliates or in which the ValueAct Group or the ValueAct Affiliates have any interest or right to acquire, whether through derivative securities, voting agreements or otherwise; and (d) as of the date of this Agreement, the ValueAct Designee satisfies all of the Conditions.   4
+
+
+
+
+
+5. Termination.
+
+(a) This Agreement is effective as of the date hereof and shall remain in full force and effect for the period (the "Covered Period") commencing on the date hereof and ending on the date that is the earliest of: (i) the Company's failure to appoint the ValueAct Designee to the Board following the ValueAct Group's written request to the Company to have the ValueAct Designee appointed to the Board pursuant to Section 1(a) of this Agreement; (ii) the failure of the Company to comply in good faith with Section 1(e) of this Agreement; or (iii) the date which is the 60t h day prior to the Company's 2016 annual meeting of stockholders.
+
+(b) The provisions of Section 1(d) this Section 5, Section 7 through Section 16 (and, for the avoidance of doubt, the Confidentiality Agreement) shall survive the termination of this Agreement. No termination pursuant to Section 5(a) shall relieve any party hereto from liability for any breach of this Agreement prior to such termination.
+
+6. Public Announcement and SEC Filing.
+
+(a) The Company shall file promptly a Form 8-K reporting entry into this Agreement (the "Form 8-K") and appending or incorporating by reference this Agreement as an exhibit thereto.
+
+(b) The ValueAct Group shall promptly, but in no case prior to the date of filing of the Form 8-K by the Company pursuant to Section 6(a) hereof, file an amendment to its Schedule 13D with respect to the Company filed with the SEC on November 13, 2013 (the "ValueAct Schedule 13D"), reporting the entry into this Agreement and amending applicable items to conform to its obligations hereunder. None of the ValueAct Group, the ValueAct Affiliates or the ValueAct Designee shall (i) issue a press release in connection with this Agreement or the actions contemplated hereby or (ii) otherwise make any public statement, disclosure or announcement with respect to this Agreement or the actions contemplated hereby, other than as mutually agreed to by the Company and the ValueAct Group.
+
+(c) The Company shall promptly issue a press release in connection with this Agreement and in the form attached hereto as Exhibit A (the "Press Release"), which is expressly agreed to by the ValueAct Group.
+
+7. Confidentiality Agreement. The Company hereby agrees that, notwithstanding any other provision of this Agreement to the contrary, the ValueAct Group may be provided confidential information in accordance with and subject to the terms of a Confidentiality Agreement in the form attached hereto as Exhibit B (the "Confidentiality Agreement"), after the Confidentiality Agreement has been mutually executed and delivered concurrently with the appointment of the ValueAct Designee to the Board pursuant to the terms of this Agreement.
+
+8. Compensation. The ValueAct Designee shall participate in all director compensation and benefit programs in which the Company's other non-employee directors participate. The Company acknowledges that pursuant to the ValueAct Group's policies, cash, equity awards and other property received by the ValueAct Designee are held by such person for the benefit of certain members of the ValueAct Group. The Company agrees that it will seek board or appropriate committee approval of all stock-based awards made to the ValueAct Designee so that the grant of such awards shall be exempt from Section 16(b) of the Exchange Act by virtue of Rule 16b-3 thereunder. Without limiting the foregoing, the Company also acknowledges that as a result of the ValueAct Designee's service on the Board, members of the ValueAct Group may be considered directors of the Company by deputization under applicable interpretations of Section 16 of the Exchange Act. The Company agrees that it will seek board or appropriate committee approval for purposes of Rule 16b-3 for all transactions in classes of Company securities subject to Section 16 and involving the ValueAct Designee or any member of the ValueAct Group who may be considered a "director by deputization" or who may be deemed to have an indirect interest in the transaction in question.
+
+9. Miscellaneous. The parties agree that irreparable damage would occur in the event any of the provisions of this Agreement were not performed in accordance with the terms hereof and that such damage would not be adequately compensable in monetary damages. Accordingly, the parties hereto shall be entitled to an injunction or injunctions to prevent breaches of this Agreement, to enforce specifically the terms and provisions of this Agreement exclusively in the Court of Chancery or other federal or state courts of the State of Delaware and to   5
+
+
+
+
+
+require the resignation of the ValueAct Designee from the Board commencing on the date that is 10 days following the date that the ValueAct Designee and/or the ValueAct Group materially breaches its obligations under this Agreement, provided, that, such breach has not been cured prior to the expiration of such 10-day period, in addition to any other remedies at law or in equity, and each party agrees it will not take any action, directly or indirectly, in opposition to another party seeking relief. Each of the parties hereto agrees to waive any bonding requirement under any applicable law, in the case any other party seeks to enforce the terms by way of equitable relief. Furthermore, each of the parties hereto (a) consents to submit itself to the personal jurisdiction of the Court of Chancery or other federal or state courts of the State of Delaware in the event any dispute arises out of this Agreement or the transactions contemplated by this Agreement, (b) agrees that it shall not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court, (c) agrees that it shall not bring any action relating to this Agreement or the transactions contemplated by this Agreement in any court other than the Court of Chancery or other federal or state courts of the State of Delaware, and each of the parties irrevocably waives the right to trial by jury, and (d) each of the parties irrevocably consents to service of process by a reputable overnight mail delivery service, signature requested, to the address set forth in Section 11 of this Agreement or as otherwise provided by applicable law. THIS AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS, INCLUDING WITHOUT LIMITATION VALIDITY, INTERPRETATION AND EFFECT, BY THE LAWS OF THE STATE OF DELAWARE APPLICABLE TO CONTRACTS EXECUTED AND TO BE PERFORMED WHOLLY WITHIN SUCH STATE WITHOUT GIVING EFFECT TO THE CHOICE OF LAW PRINCIPLES OF SUCH STATE.
+
+10. Expenses. All attorneys' fees, costs and expenses incurred in connection with this Agreement and all matters related hereto will be paid by the party incurring such fees, costs or expenses.
+
+11. Entire Agreement; Amendment. This Agreement and the Confidentiality Agreement contain the entire agreement and understanding of the parties with respect to the subject matter hereof and supersede any and all prior and contemporaneous agreements, memoranda, arrangements and understandings, both written and oral, between the parties, or any of them, with respect to the subject matter hereof. This Agreement may be amended only by an agreement in writing executed by the parties hereto, and no waiver of compliance with any provision or condition of this Agreement and no consent provided for in this Agreement shall be effective unless evidenced by a written instrument executed by the party against whom such waiver or consent is to be effective. No failure or delay by a party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.
+
+12. Notices. All notices, consents, requests, instructions, approvals and other communications provided for herein and all legal process in regard hereto shall be in writing and shall be deemed validly given, made or served, when delivered in person or sent by overnight courier, when actually received during normal business hours at the address specified in this subsection:   If to the Company:   Allison Transmission Holdings, Inc.   Mail Code L-25   One Allison Way   Indianapolis, IN 46222-3271   Attention: General Counsel
+
+If to the ValueAct Group:   ValueAct Capital Management, L.P.   One Letterman Drive   Building D, 4t h Floor   San Francisco, CA 94129   Attention: General Counsel
+
+13. Severability. If at any time subsequent to the date hereof, any provision of this Agreement shall be held by any court of competent jurisdiction to be illegal, void or unenforceable, such provision shall be of no force and effect, but the illegality or unenforceability of such provision shall have no effect upon the legality or enforceability of any other provision of this Agreement.   6
+
+
+
+
+
+14. Counterparts. This Agreement may be executed in two or more counterparts either manually or by electronic or digital signature (including by facsimile or electronic mail transmission), each of which shall be deemed to be an original and all of which together shall constitute a single binding agreement on the parties, notwithstanding that not all parties are signatories to the same counterpart.
+
+15. No Third Party Beneficiaries; Assignment. This Agreement is solely for the benefit of the parties hereto and is not binding upon or enforceable by any other persons. No party to this Agreement may assign its rights or delegate its obligations under this Agreement, whether by operation of law or otherwise, and any assignment in contravention hereof shall be null and void. Nothing in this Agreement, whether express or implied, is intended to or shall confer any rights, benefits or remedies under or by reason of this Agreement on any persons other than the parties hereto, nor is anything in this Agreement intended to relieve or discharge the obligation or liability of any third persons to any party.
+
+16. Interpretation and Construction. When a reference is made in this Agreement to a Section, such reference shall be to a Section of this Agreement, unless otherwise indicated. 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. Whenever the words "include," "includes" and "including" are used in this Agreement, they shall be deemed to be followed by the words "without limitation." The words "hereof, "herein" and "hereunder" and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The word "will" shall be construed to have the same meaning as the word "shall." The words "dates hereof" will refer to the date of this Agreement. The word "or" is not exclusive. The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms. Any agreement, instrument, law, rule or statute defined or referred to herein means, unless otherwise indicated, such agreement, instrument, law, rule or statute as from time to time amended, modified or supplemented. Each of the parties hereto acknowledges that it has been represented by counsel of its choice throughout all negotiations that have preceded the execution of this Agreement, and that it has executed the same with the advice of said independent counsel. Each party cooperated and participated in the drafting and preparation of this Agreement and the documents referred to herein, and any and all drafts relating thereto exchanged among the parties shall be deemed the work product of all of the parties and may not be construed against any party by reason of its drafting or preparation. Accordingly, any rule of law or any legal decision that would require interpretation of any ambiguities in this Agreement against any party that drafted or prepared it is of no application and is hereby expressly waived by each of the parties hereto, and any controversy over interpretations of this Agreement shall be decided without regards to events of drafting or preparation.
+
+[Signature Pages Follow]   7
+
+
+
+
+
+IN WITNESS WHEREOF, each of the parties hereto has executed this COOPERATION AGREEMENT or caused the same to be executed by its duly authorized representative as of the date first above written.   Allison Transmission Holdings, Inc.
+
+By:  /s/ Eric C. Scroggins Name:  Eric C. Scroggins Title:  Vice President, General Counsel & Secretary   [Signature Page to Cooperation Agreement]
+
+
+
+
+
+IN WITNESS WHEREOF, each of the parties hereto has executed this COOPERATION AGREEMENT or caused the same to be executed by its duly authorized representative as of the date first above written.
+
+VA Partners I, LLC    By:  /s/ George F. Hamel, Jr. Name:  George F. Hamel, Jr. Title:  Chief Operating Officer
+
+ValueAct Capital Master Fund, L.P.    By:  /s/ George F. Hamel, Jr. Name:  George F. Hamel, Jr. Title:  Chief Operating Officer
+
+ValueAct Capital Management, L.P.    By:  /s/ George F. Hamel, Jr. Name:  George F. Hamel, Jr. Title:  Chief Operating Officer
+
+ValueAct Capital Management, LLC    By:  /s/ George F. Hamel, Jr. Name:  George F. Hamel, Jr. Title:  Chief Operating Officer
+
+ValueAct Holdings, L.P.    By:  /s/ George F. Hamel, Jr. Name:  George F. Hamel, Jr. Title:  Chief Operating Officer
+
+ValueAct Holdings GP, LLC    By:  /s/ George F. Hamel, Jr. Name:  George F. Hamel, Jr. Title:  Chief Operating Officer   /s/ Gregory P. Spivy Gregory P. Spivy   [Signature Page to Cooperation Agreement]
+
+
+
+
+
+Schedule A
+
+Members of ValueAct Group
+
+VA Partners I, LLC
+
+ValueAct Capital Master Fund, L.P.
+
+ValueAct Capital Management, L.P.
+
+ValueAct Capital Management, LLC
+
+ValueAct Holdings, L.P.
+
+ValueAct Holdings GP, LLC
+
+Gregory P. Spivy

full_contract_txt/AMBASSADOREYEWEARGROUPINC_11_17_1997-EX-10.28-ENDORSEMENT AGREEMENT.txt

@@ -0,0 +1,269 @@
+Exhibit 10.28
+
+                              ENDORSEMENT AGREEMENT
+
+            This Endorsement Agreement ("Agreement") is made and entered into as of August 24, 1995, by and among the following parties:
+
+                  (a) Kathy Ireland, Inc. ("KI Inc."), furnishing the services       of Kathy Ireland ("KI"), c/o The Sterling/Winters Co., 1900 Avenue of the       Stars, Suite #1640, Los Angeles, California 90067;
+
+                  (b) The Sterling/Winters Co. ("SW"), 1900 Avenue of the Stars,       Suite #1640, Los Angeles, California 90067; and
+
+                  (c) Diplomat Ambassador Eyewear Group ("Diplomat"), 1010 Arch       Street, 3rd Floor, Philadelphia, Pennsylvania 19107.
+
+            1. Recitals.
+
+                  (a) Whereas Diplomat has created a new product line to be known as "Kathy Ireland Eyewear" ("KI Eyewear");
+
+                  (b) Whereas Diplomat estimates on a non-binding basis that wholesale sales of KI Eyewear will reach $          during the first License Year, $          during the 2nd License Year, $          during the 3rd License Year, and $          during the 4th License Year (as those License Years are defined in subparagraph 3.(b) of this Agreement);
+
+                  (c) Whereas Diplomat desires to obtain the right to use the name, likeness and endorsement of KI in connection with the advertisement, promotion and sale of KI Eyewear; and
+
+                  (d) Whereas KI, Inc. has the authority to grant the right to use KI's name, likeness and endorsement to Diplomat in connection with the advertisement, promotion and sale of KI Eyewear and desires to do so;
+
+                  (e) NOW THEREFORE, for and in consideration of the mutual promises and conditions contained in this Agreement, the parties hereby agree as follows.
+
+            2. Grant of License.
+
+                  (a) Products. Upon the terms and conditions set forth in this Agreement, KI, Inc. hereby grants to Diplomat and Diplomat hereby accepts the right, license and privilege of utilizing KI's name and likeness solely upon and in connection with the manufacture, sale and distribution of the following products:
+
+                        (1) sunglasses, eyeglasses, readers and ophthalmic frames;
+
+                                       1
+
+                        (2) optical cases, optical eye chains, eye pins, and lens cleaning kits sold only in optical retailers; and
+
+                        (3) such other optical accessories as the parties shall agree.
+
+                  (b) Territory. The license hereby granted extends worldwide.
+
+                  (c) Term. The term of the license hereby granted shall commence August 1, 1995 and continue until January 30, 2000, unless sooner terminated in the manner provided in the immediately succeeding sentence or as otherwise provided in this Agreement. Notwithstanding the foregoing, if the management of Kmart stores elects not to carry KI eyewear prior to the end of the first license year (January 30, 1997), then either party shall have the right to terminate this Agreement as of such date.
+
+                  3. Terms of Payment.
+
+                  (a) Rate. Diplomat agrees to pay KI, Inc. as royalty a sum equal to  % of the net wholesale volume of the products covered by this Agreement by Diplomat and its affiliated, associated, or subsidiary companies. The term "net wholesale volume" shall mean gross sales to all customers; less returns, trade discounts and cash discounts; but no deduction shall be made for other discounts or uncollectible accounts. No costs incurred in the manufacture, sale, distribution, or exploitation of the products covered by this Agreement shall be deducted from any royalty payable by Diplomat.
+
+                  (b) Minimum Royalties. Diplomat agrees to pay KI, Inc. the minimum royalties set forth below as a minimum guarantee against royalties to be paid to KI, Inc. under subparagraph 3.(a), above:
+
+                  (1) 1st License Year (8/1/95 - 1/30/97):     $                   (2) 2nd License Year (2/1/97 - 1/30/98):     $                   (3) 3rd License Year (2/1/98 - 1/30/99):     $                   (4) 4th License Year (2/1/99 - 1/30/2000):   $
+
+
+
+
+
+The minimum royalty for the 1st License Year shall be paid as follows: $ upon the signing of the Deal Memo dated August 24, 1995, the balance of $ to be paid in six (6) equal, consecutive, monthly installments of $ commencing with the month in which this Agreement is signed. No part of the minimum royalty for the first License Year shall in any event be repayable to Diplomat. The minimum royalty for the 2nd, 3rd and 4th License Years shall be made in four equal installments payable on February 1st, May 1st, August 1st and November 1st of each such License Year. Notwithstanding the foregoing, if royalties paid by Diplomat to KI, Inc. on net
+
+                                       2
+
+wholesale volume for any particular License Year under subparagraph 3(a) of this Agreement should exceed the minimum royalties remaining to be paid for that same License Year under this subparagraph 3(b), then no further payments of minimum royalties for such License Year shall be required under this subparagraph 3(b).
+
+                  (c) Periodic Statements. Within thirty (30) days after the initial shipment of the products covered by this Agreement, and promptly on the 15th of each calendar month thereafter, Diplomat shall furnish to KI, Inc. complete and accurate statements certified to be accurate by Diplomat showing the number, description and gross sales price, itemized deductions from gross sales price, and net sales price of the products covered by this Agreement distributed and/or sold by Diplomat during the preceding calendar month, together with any returns made during the preceding calendar month. Such statements shall be furnished to KI, Inc. whether or not any of the products have been sold during the preceding calendar month.
+
+                  (d) Royalty Payments. Royalties in excess of the minimum royalty shall be due on the 25th day of the month following the calendar month in which they are earned, and payment shall accompany the statements furnished pursuant to subparagraph (c), above. The receipt or acceptance by KI, Inc. of any of the statements furnished pursuant to this Agreement, or of any royalties paid hereunder, or the cashing of any royalty checks paid hereunder, shall not preclude KI, Inc. from questioning the correctness of such statements or payments, provided all such questions are raised with Diplomat within two years of the date of KI Inc's receipt of the statement or payment in question. In the event any inconsistencies or mistakes are discovered in such statements or payments, they shall immediately be rectified and the appropriate payments made by Diplomat.
+
+            4. Exclusivity.
+
+            The license hereby granted shall be exclusive as to the products described in subparagraphs 2.(a)(1) and (2) of this Agreement, but nonexclusive as to all other products covered by this Agreement. Nothing in this Agreement shall be construed to prevent KI, Inc. from granting any other licenses for the use of KI's name or likeness, or from utilizing KI's name and likeness in any manner whatsoever, except that KI, Inc. agrees that except as provided herein it will grant no other licenses for the territory to which this license extends for the use of KI's name and likeness in connection with the sale of the products described in subparagraphs 2.(a)(1) and (2) of this Agreement effective during the term of this Agreement.
+
+            5. Personal Endorsement and Appearances.
+
+                  (a) Endorsement. KI, Inc. agrees that KI shall endorse KI Eyewear and that KI will use her best efforts to wear KI Eyewear whenever reasonably possible and appropriate, with KI to have sole, unfettered discretion as to where and when to wear KI Eyewear.
+
+                                       3
+
+                  (b) USA Appearance. KI will make one (1) personal appearance per License Year during the period of this Agreement on behalf of Diplomat at the Vision Expo in New York, New York, subject to the terms of this paragraph. Such appearance shall be for the purpose of signing autographs, shall last for a period of up to three (3) hours, and shall be subject to KI's schedule and availability. Diplomat, at its own expense, shall provide KI with a hair and make-up assistant of KI's choosing for each personal or media appearance required under this Agreement.
+
+                  (c) Travel. Travel expenses of KI in connection with all scheduled personal appearances under this Agreement, as well the travel expenses of KI's child, the child's nanny, KI's hair and make-up assistant of KI's choosing, and two (2) additional traveling companions of KI's choosing (collectively referred to as KI's "entourage"), shall be provided by Diplomat. KI and the members of her entourage shall travel via first class air and portal-to-portal limousine ground transportation. In addition, KI and the members of her entourage shall be lodged in first class hotel accommodations and all of them shall be reimbursed for all meals and other incidental expenses in connection with such appearances. All the above travel expenses of KI and the members of her entourage shall be billed directly to Diplomat. For purposes of this paragraph (c), the term "travel expenses" shall include
+
+                  (d) Photo Sessions. KI will participate in up to two (2) photo sessions per License Year during the period of this Agreement on behalf of Diplomat at a mutually acceptable time and place. The photo sessions shall be scheduled at KI's convenience upon not less than two (2) weeks prior notice, and shall be subject to KI's preexisting personal and professional commitments. The photo sessions shall be up to two (2) consecutive days in duration, each day to consist of no more than eight (8) working hours. The photo shoots shall be
+
+
+
+
+
+produced by SW, approved in writing by Diplomat (which approval shall not be unreasonably withheld), and all images produced from the photo sessions shall be the property of SW. The parties agree that all images from the photo sessions shall be retouched at the expense of Diplomat. In recognition of SW's expenses in connection with the above photo sessions, Diplomat shall pay SW the sum of $       per day for each day (or partial day) of such photo sessions. It is understood by the parties that such sum shall include all expenses required to provide Diplomat with positive film (excluding travel expenses of KI, as set forth in this Agreement), and that such sum contemplates a typical location for such photo sessions. If a more elaborate set-up for such photo sessions is required, and such set-up is mutually agreed to by the parties, then the above sum shall be increased to such amount as the parties shall agree. The above sum shall not include retouching images.
+
+                  (e) Videotapes. KI will participate in the production of up to one (1) product information/sales video per License Year during the period of this Agreement on behalf of Diplomat at a mutually acceptable time and place. The video production sessions shall be scheduled at KI's convenience upon not less than two (2) weeks prior notice, and shall be subject to KI's preexisting personal and professional commitments. The video production sessions shall be up to two (2) consecutive days
+
+                                       4
+
+in duration, each day to consist of no more than eight (8) working hours. The video production sessions shall be produced by SW, approved in writing by Diplomat (which approval shall not be unreasonably withheld), and all images produced from the video production sessions shall be the property of SW. In recognition of SW's expenses in connection with such video production sessions, Diplomat shall pay SW a sum per day for each day (or partial day) of such sessions, such sum to be agreed upon by the parties. It is understood by the parties that such sum shall include all expenses required to provide Diplomat with an acceptable video (excluding travel expenses of KI, as set forth in this Agreement).
+
+                  (f) Scope of License. The license granted to Diplomat in subparagraph 2(a) of this Agreement shall include the right to use the photos and videotapes referred to in subparagraphs 5(d) and 5(e) of this Agreement in connection with the marketing, distribution and sale of the products described in subparagraph 2(a) of this Agreement, subject to the prior approval of KI, Inc.
+
+            6. Good Will, Etc.
+
+            Diplomat recognizes the great value of the good will associated with KI's name and acknowledges that (a) KI's name, and all rights and good will pertaining to KI's name, belong exclusively to KI, Inc. and (b) that KI's name has a secondary meaning in the mind of the public.
+
+            7. KI, Inc.'s Title and Protection of KI. Inc.'s Rights.
+
+                  (a) Diplomat agrees that it will not at any time during the term of this Agreement or thereafter attack (i) KI, Inc.'s title to, or rights in and to, KI's name or (ii) the validity of this license. KI, Inc. hereby indemnifies Diplomat and undertakes to hold it harmless against only those claims or suits (i) arising solely out of the authorized use of KI's name by Diplomat in accordance with this Agreement and (ii) brought by those persons or entities to whom KI, Inc. has licensed the use of KI's name and likeness. Prompt notice shall be given by Diplomat to KI, Inc. of any such claim or suit. In addition, KI, Inc. shall have the option to undertake and conduct the defense of any suit so brought and no settlement of any such claim or suit shall be made without the prior written consent of KI, Inc.
+
+                  (b) Diplomat shall notify KI, Inc. in writing of any infringements or imitations by others of KI's name on products similar to those covered by this Agreement that may come to Diplomat's attention, and KI, Inc. shall have the sole right to determine whether or not any action shall be taken in connection with such infringements or imitations. Diplomat shall not institute any suit or take any action in connection with any such infringements or imitations without first obtaining the written consent of KI, Inc.
+
+                                       5
+
+            8. Indemnification by Licensee and Product Liability Insurance.
+
+            Diplomat hereby indemnifies KI, Inc. and KI, undertakes to defend KI, Inc. and KI against, and hold KI, Inc. and KI harmless from, any claims, suits, loss and damage (including attorneys' fees and costs) arising out of (a) any allegedly unauthorized use of any patent, process, idea, method, or device by Diplomat in connection with the products covered by this Agreement, (b) any alleged defects in the products covered by this Agreement, and (c) any other alleged action by Diplomat. Diplomat agrees that it will obtain, at its own expense, product liability insurance from a recognized insurance company which is qualified to do business in the State of California providing adequate protection (at least in the amount of $         ) for KI, Inc., KI and Diplomat against any claims, suits, loss or damage arising out of any alleged defects in the products. As proof of such insurance, a fully paid certificate of insurance naming KI, Inc. and KI as an insured party will be submitted to KI, Inc. by Diplomat for KI, Inc.'s prior approval before any product is distributed or sold, and at the latest within thirty (30) days after the date first written above. Any proposed change in certificates of insurance shall be submitted to KI, Inc. for its prior approval. KI, Inc. shall be entitled to a copy of the
+
+
+
+
+
+then prevailing certificate of insurance, which shall be furnished KI, Inc. by Diplomat. As used in the first 2 sentences of this paragraph 6, "KI, Inc." shall also include the officers, directors, agents, and employees of the KI, Inc., or any of its subsidiaries or affiliates.
+
+            9. Quality of Merchandise.
+
+                  Diplomat agrees that the products covered by this Agreement shall be of such style, appearance and quality as to be adequate and suited to their exploitation to the best advantage, protection and enhancement of KI's name and the good will pertaining to such name. Diplomat further agrees that (a) such products will be manufactured, sold and distributed in accordance with all applicable Federal, State and local laws, (b) that the policy of sale, distribution, and/or exploitation by Diplomat shall be to the best advantage of KI, Inc. and KI, and (c) that the latter policy shall in no manner reflect adversely upon the good name of KI and KI, Inc. To this end, Diplomat shall, before selling or distributing any of the products, furnish to KI, Inc. for its approval, free of cost, a reasonable number of samples of each product and the cartons, containers, packing and wrapping material for such products. The quality and style of such products, as well as of any carton, container or packing or wrapping material, shall be subject to the approval of KI, Inc., which shall not be unreasonably withheld or delayed. Failure to reject any product, carton, container, or packing or wrapping within 15 days of receipt of such item or items by KI, Inc. shall be deemed an acceptance of the quality and style of such item or items. After samples have been approved pursuant to this paragraph, Diplomat shall not depart therefrom in any material respect without KI, Inc.'s prior written consent. From time to time after Diplomat has commenced selling the products, and upon KI, Inc.'s written request, Diplomat shall furnish without cost to KI, Inc. not more than ten (10) additional random samples of each product being manufactured and sold by Diplomat under this Agreement, together with any containers and packing and wrapping material used in connection with such products.
+
+                                       6
+
+            10. Labeling.
+
+                  (a) Diplomat agrees that it will cause to appear on or within       each product sold by it under this license and on or within all       advertising, promotional, or display material bearing KI's name (i) the       notice "Copyright (c) (year) ______" and any other notice desired by KI,       Inc and (ii) where such product, advertising, promotional, or display       material bears a trademark or service mark, appropriate statutory notice       of registration or application for registration thereof. In the event that       any product is marketed in a carton, container, packing or wrapping       material bearing KI's name, such notice shall also appear upon the said       carton, container, packing or wrapping material. Each and every tag,       label, imprint, or other device containing any such notice and all       advertising, promotional or display material bearing KI's name shall be       submitted by Diplomat to KI, Inc. for its written approval prior to use by       Diplomat. Approval by KI, Inc. shall not constitute waiver of KI, Inc.'s       rights or Diplomat's duties under any provision of this Agreement.
+
+                  (b) Diplomat agrees to cooperate fully and in good faith with       KI, Inc., at the expense of KI, Inc., for the purpose of securing and       preserving KI, Inc.'s (or any grantor of KI, Inc.'s) rights in and to KI's       name. It is agreed that nothing contained in this Agreement shall be       construed as an assignment or grant to Diplomat of any right, title or       interest in or to KI's name, it being understood that all rights relating       thereto are reserved by KI, Inc., except for the license hereunder to       Diplomat of the right to use and utilize KI's name only as specifically       and expressly provided in this Agreement. Diplomat hereby agrees that at       the termination or expiration of this Agreement Diplomat will be deemed to       have assigned, transferred and conveyed to KI, Inc. any trade rights,       equities, good will, titles or other rights in and to KI's name which may       have been obtained by Diplomat or which may have vested in Diplomat in       pursuance of any endeavors covered by this Agreement, and that Diplomat       will execute any instruments requested by KI, Inc. to accomplish or       confirm the foregoing. Any such assignment, transfer, or conveyance shall       be without consideration other than the mutual covenants and       considerations of this Agreement.
+
+                  (c) Diplomat hereby agrees that its every use of KI's name       shall inure to the benefit of KI, Inc. and that Diplomat shall not at any       time acquire any rights in KI's name by virtue of any use it may make of       such name.
+
+            11. Promotional Material.
+
+                  (a) In all cases where Diplomat desires artwork to be created       involving products that are the subject of this license, the cost of such       artwork and the time for the production thereof shall be borne by       Diplomat. All artwork and designs involving KI's name, or any reproduction       thereof, shall, notwithstanding their invention or use by Diplomat, be and       remain the
+
+                                       7
+
+      property of SW, and SW shall be entitled to use the same and to license       the use of the same by others.
+
+                  (b) KI, Inc. shall have the right, but shall not be under any
+
+
+
+
+
+      obligation, to use KI's name and/or the name of Diplomat so as to give       KI's name, KI, Inc., or KI, Inc.'s programs full and favorable prominence       and publicity. KI, Inc. shall not be under any obligation whatsoever to       use KI's name, or any person, character, symbol, design, likeness, or       visual representation thereof in any radio or television program.
+
+                  (c) Diplomat agrees not to offer for sale, advertise, or       publicize any of the products licensed hereunder on radio or television       without the prior written approval of KI, Inc., which approval KI, Inc.       may grant or withhold in its unfettered discretion.
+
+            12. Distribution.
+
+                  (a) Diplomat agrees that during the term of this license it       will diligently and continuously manufacture, distribute and sell the       products covered by this Agreement and that it will make and maintain       adequate arrangements for the distribution of the products.
+
+                  (b) Diplomat agrees that it will sell and distribute the       products covered by this Agreement (i) to jobbers, wholesalers and       distributors for sale and distribution to retail stores and merchants, and       (ii) to retail stores and merchants for sale and distribution direct to       the public. Diplomat shall not, without the prior written consent of KI,       Inc., sell or distribute such products to jobbers, wholesalers,       distributors, retail stores, or merchants whose sales or distribution are       or will be made for publicity or promotional tie-in purposes, combination       sales, premiums, give-aways, or similar methods of merchandising. In the       event any sale is made at a special price to any of Diplomat's       subsidiaries or to any other person, firm or corporation related in any       manner to Diplomat or its officers, directors or major stockholders, there       shall be a royalty paid on such sales based upon the price generally       charged the trade by Diplomat.
+
+                  (c) Diplomat agrees to sell to KI, Inc. such quantities of the       products at as low a rate and on as good terms as Diplomat sells similar       quantities of the products to the general trade.
+
+            13. Records.
+
+            Diplomat agrees to keep accurate books of account and records covering all transactions relating to the license hereby granted. KI, Inc. and its duly-authorized representatives shall have the right, upon reasonable notice and at reasonable hours of the day, to visit the offices of Diplomat one time each calendar quarter for the purpose of examining said books of account and records, and all other documents and materials in the possession or under the control of Diplomat, with respect to the
+
+                                       8
+
+subject matter and terms of this Agreement, and shall have free and full access thereto for said purposes and for the purpose of making extracts therefrom. Upon demand of KI, Inc., Diplomat shall furnish to KI, Inc. a detailed statement by an independent certified public accountant showing the number, description, gross sales price, itemized deductions from gross sales price and net sales price of the products covered by this Agreement distributed and/or sold by Diplomat to the date of KI, Inc.'s demand. The cost of preparing such statement shall be borne by KI, Inc. However, notwithstanding the foregoing, if the prepared statement indicates that KI, Inc., received less than all royalties payable to it under this Agreement, and the differential between the royalties received and those payable amounts to more than  % of the royalties received, then the cost of such statement shall be borne by Diplomat. In the event books of account and records shall be kept available for at least two (2) years after the termination of this license.
+
+            14. Bankruptcy, Violation, Etc.
+
+                  (a) If Diplomat shall not have commenced in good faith to       manufacture or distribute in commercial quantities sunglasses and       ophthalmic frames using KI's name within three months after the date of       this Agreement, or if at any time thereafter in any six calendar month       period Diplomat fails to sell or distribute sunglasses or ophthalmic       frames, or any other product described in subparagraph 2(a) of this       Agreement, KI Inc. may give notice of such failure with respect to any       such product which has not been so manufactured or distributed during the       six calendar month period. In the event that Diplomat does not commence       selling such product in commercial quantities within 90 days after such       notice, such notice shall be deemed to be a termination of this License       with respect to such product.
+
+                  (b) If Diplomat files a petition in bankruptcy, or is       adjudicated a bankrupt, or if a petition in bankruptcy is filed against       Diplomat, or if it becomes insolvent, or it makes an assignment for the       benefit of its creditors or an arrangement pursuant to any bankruptcy law,       or if Diplomat discontinues its business, or if a receiver is appointed       for it or its business, the license hereby granted shall automatically       terminate forthwith without any notice whatsoever being necessary. In the       event this license is so terminated, Diplomat, its receivers,       representatives, trustees, agents, administrators, successors and/or       assigns shall have no right to sell, exploit or in any way deal with or in       any of the products covered by this Agreement, or any carton, container,       packing or wrapping material, advertising, promotional or display material       pertaining thereto, except with and under the special consent and       instructions of KI, Inc. in writing, which they shall be obligated to       follow.
+
+
+
+
+
+                  (c) If Diplomat shall violate any of its other material       obligations under the terms of this Agreement, KI, Inc. shall have the       right to terminate the license hereby granted upon twenty (20) days'       notice in writing, and such notice of termination shall become effective       unless Diplomat shall
+
+                                       9
+
+      completely remedy the violation within the twenty-day period and satisfy       KI, Inc. that such violation has been remedied.
+
+                  (d) Termination of the license under the provisions of this       paragraph 14 shall be without prejudice to any rights which KI, Inc. may       otherwise have against Diplomat. Upon the termination of this license,       notwithstanding anything to the contrary herein, all royalties on sales       theretofore made shall become immediately due and payable and no minimum       royalties shall be repayable.
+
+            15. Final Statement Upon Termination or Expiration.
+
+            Sixty (60) days before the expiration of this license and, in the event of its termination, ten (10) days after receipt of notice of termination or the happening of the event which terminates this Agreement where no notice is required, a statement showing the number and description of products covered by this Agreement on hand or in process shall be furnished by Diplomat to KI, Inc. KI, Inc. shall have the right to take a physical inventory to ascertain or verify such inventory and statement and refusal by Diplomat to submit to such physical inventory by KI, Inc. shall forfeit Diplomat's right to dispose of such inventory, KI, Inc. retaining all other legal and equitable rights KI, Inc. may have under the circumstances.
+
+            16. Disposal of Stock Upon Termination or Expiration.
+
+            Upon and after the termination of the license, and except as otherwise provided in this Agreement, Diplomat may dispose of products covered by this Agreement which are on hand, or in process at the time notice of termination is received, for a period of one hundred and twenty (120) days after notice of termination, provided advances and royalties with respect to that period are paid and statements are furnished for that period in accordance with paragraph 3. Notwithstanding anything to the contrary herein, Diplomat shall not manufacture, sell or dispose of any products covered by this license after (a) the expiration of the license, or (b) the termination of the license based on (i) the failure of Diplomat to affix notice of copyright, trademark or service mark registration or any other notice to the products, cartons, containers, or packing or wrapping material or advertising, promotional or display material, or (ii) because of the departure by Diplomat from the quality and style approved by KI, Inc. pursuant to paragraph 9.
+
+            17. Effect of Termination or Expiration.
+
+            Upon and after the expiration or termination of this license, all rights granted to Diplomat hereunder shall forthwith revert to KI, Inc., who shall be free to license others to use KI's name in connection with the manufacture, sale and distribution of the products covered hereby, and Diplomat will refrain from further use of KI's name or any further reference to it, direct or indirect, or anything deemed by KI, Inc. to be similar to the KI's name, in connection with the manufacture, sale or distribution of Diplomat's products, except as provided in paragraph 17.
+
+                                       10
+
+            18. KI, Inc.'s Remedies.
+
+                  (a) Diplomat acknowledges that (except as otherwise provided       herein) its failure to commence in good faith to manufacture and       distribute in commercial quantities any one or more of the products listed       in subparagraph 2(a) within three (3) months of the date of this Agreement       and to continue during the term hereof to diligently and continuously       manufacture, distribute and sell the products covered by this Agreement,       or any class or category thereof, will result in immediate damages to KI,       Inc.
+
+                  (b) Diplomat also acknowledges that (except as otherwise       provided herein) its failure to cease the manufacture, sale or       distribution of the products covered by this Agreement, or any class or       category thereof, at the termination or expiration of this Agreement will       result in immediate and irremediable damage to KI, Inc. and to the rights       of any subsequent licensee. Diplomat acknowledges and admits that there is       no adequate remedy at law for such failure to cease manufacture, sale or       distribution, and Diplomat agrees that in the event of such failure KI,       Inc. shall be entitled to equitable relief by way of temporary and       permanent injunctions and such other further relief as any court with       jurisdiction may deem just and proper.
+
+                  (c) Resort to any remedies herein shall not be construed as a       waiver of any other rights and remedies to which KI, Inc. is entitled       under this Agreement or otherwise.
+
+            19. Excuse for Nonperformance.
+
+            Diplomat shall be released from its obligations hereunder and this license shall terminate in the event that governmental regulations or other
+
+
+
+
+
+causes arising out of a state of national emergency, war, or causes beyond the control of the parties render performance impossible and one party so informs the other in writing of such causes and its desire to be so released. In such events, all royalties on sales theretofore made shall become immediately due and payable and no minimum royalties shall be repayable.
+
+            20. No Joint Venture.
+
+            Nothing herein contained shall be construed to place the parties in the relationship of partners or joint venturers, and Diplomat shall have no power to obligate or bind KI, Inc. in any manner whatsoever.
+
+            21. No Assignment or Sublicense by Diplomat.
+
+            This Agreement and all rights and duties hereunder are personal to Diplomat and shall not, without the written consent of KI, Inc., be assigned, mortgaged, sublicensed or otherwise encumbered by Diplomat or by operation of law.
+
+                                       11
+
+            KI, Inc. may assign its rights hereunder, but shall furnish written notice of such assignment to Diplomat.
+
+            22. No Waiver, Etc.
+
+            None of the terms of this Agreement can be waived or modified except by an express Agreement in writing signed by both parties. There are no representations, promises, warranties, covenants or undertakings other than those contained in this Agreement, which represents the entire understanding of the parties. The failure of either party hereto to enforce, or the delay by either party in enforcing, any of its rights under this Agreement shall not be deemed a continuing waiver or a modification thereof and either party may, within the time provided by applicable law, commence appropriate legal proceedings to enforce any or all of such rights. No person, firm, group or corporation (whether included in KI's name or otherwise) other than Diplomat and KI, Inc. shall be deemed to have acquired any rights by reason of anything contained in this Agreement, except as provided in paragraphs 8 and 22.
+
+            23. Additional Endorsers. If, during the term of this Agreement, Diplomat should utilize the services of any other person to endorse its products, and the public image of such person is so inconsistent with that of KI as to risk damaging the good will of KI's name should KI, Inc. continue to do business with Diplomat, then KI, Inc. shall have the right to terminate this Agreement, subject to the remedial and other provisions of paragraph 14 of this Agreement.
+
+            24. Miscellaneous Provisions.
+
+                  (a) Authority. KI, Inc. has the full right, power, legal       capacity and authority to enter into this Agreement on behalf of KI, to       carry out its terms, and to grant Diplomat the rights, licenses and       privileges granted in this Agreement.
+
+                  (b) Merger. This Agreement supersedes any and all prior       written or oral agreements between the parties.
+
+                  (c) Governing Law. This Agreement shall be governed by and       construed in accordance with the laws of the State of California without       regard to conflict of law principles.
+
+                  (d) Attorneys' Fees. The prevailing party in any proceeding       brought to enforce any provision of this Agreement shall be entitled to       recover the reasonable fees and costs of its counsel, plus all other costs       of such proceeding.
+
+                  (e) Notices. All notices and statements to be given, payments       to be made and materials to be submitted under this Agreement shall be       given, made and submitted via certified or registered mail, postage       prepaid, return
+
+                                       12
+
+      receipt requested, at the addresses of the parties, as set forth above,       unless notification of a change of address is given in writing, and the       date of mailing shall be deemed the date the notice or statement is given.
+
+            IN WITNESS WHEREOF, this Agreement has been executed as of the date first set forth above.
+
+                                    /s/ Kathy Ireland                                                        ---------------------------------                                     KATHY IRELAND, Individually                                                                                                               KATHY IRELAND, INC.                                                                       By /s/ Kathy Ireland                                     ---------------------------------                                     KATHY IRELAND, President
+
+
+
+
+
+                                    THE STERLING/WINTERS CO.                                                                       By /s/ Jason Winters                                     ---------------------------------                                     JASON WINTERS                                                                                                               DIPLOMAT AMBASSADOR EYEWEAR GROUP                                                                       By /s/ Barry Budilov                                     ---------------------------------                                     BARRY BUDILOV, President
+
+                                       13
+
+                       ADDENDUM TO ENDORSEMENT AGREEMENT
+
+      This addendum to the Endorsement Agreement between Kathy Ireland, Inc., Diplomat Ambassador Eyewear Group, and The Sterling/Winters Company entered into as of August 24, 1995 now includes the following provision:
+
+      Diplomat Ambassador Eyewear Group agrees to comply with the laws and regulations of any state or territory in which they manufacture or have sub-contracted any Kathy Ireland product, especially pertaining to labor and safety issues.
+
+      Diplomat Ambassador Eyewear Group agrees to comply with any reasonable requests from Kathy Ireland, Inc. concerning labor and safety resolutions.
+
+                                    DIPLOMAT AMBASSADOR EYEWEAR GROUP                                      3/4/97                           By /s/ Barry Budilov - -------                             --------------------------------- Dated                               BARRY BUDILOV, President
+
+                                    KATHY IRELAND, INC.                                      3/18/97                          By /s/ Kathy M Ireland - -------                             --------------------------------- Dated                               KATHY IRELAND, President                                                                                                               THE STERLING/WINTERS CO.                                      3/21/97                          By /s/ Jason Winters - -------                             --------------------------------- Dated                               JASON WINTERS

full_contract_txt/AMERICANPHYSICIANSCAPITALINC_03_31_2003-EX-10.26-AGENCY AGREEMENT.txt

@@ -0,0 +1,241 @@
+EXHIBIT 10.26                                       MICOA                                 AGENCY AGREEMENT
+
+         Mutual Insurance Corporation of America, a Michigan insurance corporation (MICOA) and Stratton, Cheeseman & Walsh-Nevada, Inc., a Nevada corporation, ("Agency"), (sometimes commonly referred to as the Parties) agree as follows:
+
+A.       AUTHORITY OF AGENCY
+
+         Subject to requirements imposed by law, the underwriting rules,          procedures and regulations of MICOA and this agreement, the Agency is          authorized to:
+
+         1.       Solicit within the State of Nevada, receive and transmit                   immediately and directly to MICOA, proposals for health care                   liability insurance contracts for which a commission is                   specified in the schedule of commissions provided by Exhibit                   A, attached and as amended or supplemented by such attachments                   from time to time.
+
+         2.       Produce and deliver certificates of insurance and written                   binders in accordance with MICOA underwriting requirements.                   The Agency is not authorized to accept or bind any risk or to                   otherwise obligate MICOA without specific authority from                   MICOA.
+
+         3.       Provide all usual and customary services of an Agency on all                   policies placed with MICOA subject to the following:
+
+                  a.       MICOA will not be responsible for Agency expenses                            including but not limited to rent, transportation,                            employee hire or solicitor's fees, postage,                            telegrams, telephone, advertising, licensing fees or                            any other Agency expenses whatsoever.
+
+                  b.       The Agency will not undertake or initiate advertising                            of any nature in connection with business or policies                            related to MICOA without the approval of MICOA.
+
+         4.       To promptly report all claims and losses of which the Agency                   has knowledge and properly notify MICOA when the Agency                   receives notice of the commencement of any related legal                   action. Agency shall refrain from admitting or denying                   liability on the part of the company in connection with any                   claim or lawsuit.
+
+         5.       In return for the exclusive appointment of Agency by MICOA to                   sell its professional liability products listed on the                  &sbsp;attached Commission Schedule
+
+                  in Nevada, Agency agrees not to sell any competing                   professional liability products in Nevada, without the written                   consent of MICOA. Provided that, if a particular risk has been                   submitted to MICOA and MICOA has declined that risk, then                   Agency may search appropriate markets for placement of that                   risk, and may place that risk with another insurance company.
+
+         6.       Designated Agent representatives upon request from MICOA will                   be expected to participate in MICOA's Nevada Market Managers                   Group activities and to attend all scheduled meetings.
+
+         7.       MICOA will share on a project basis development costs of all                   promotional materials and some advertising costs related to                   Nevada sales, provided that all such expenditures or budgets                   for them are approved by MICOA in writing in advance.
+
+         8.       Agency may solicit subagencies for appointment, subject to                   MICOA's prior written approval of each subagency following                   disclosure to and review by MICOA of information requested by                   MICOA for each proposed subagency. All such appointments by                   Agent shall stipulate that MICOA may terminate the subagency                   at any time without cause upon at least 90 days notice and                   that the subagency shall comply with all MICOA requirements                   and duties owed MICOA by Agency concerning solicitation,                   communications, and service to insureds. Subagencies shall                   also be required to submit all proposals immediately and                   directly to MICOA.
+
+B.       MICOA BILLED POLICIES
+
+         For business subject to Exhibit A, placed with and billed by MICOA          directly to the policyholder, the following shall apply in addition to          all the other provisions of this agreement:
+
+         1.       The processing and submittal of all such business shall be                   subject to provisions outlined in MICOA's written requirements                   and forms as they may be implemented by MICOA from time to
+
+
+
+
+
+                  time;
+
+         2.       Commissions on premiums shall be paid to the Agency within 30                   business days of the month in which such premiums are received                   and recorded by MICOA, subject to deduction by MICOA of any                   return commissions due from the Agency.
+
+         3.       Except as provided in Section D or unless authorized by the                   Agency, MICOA or its affiliates shall not use its records of                   business placed by the Agency with MICOA to solicit individual                   policyholders for the sale of other lines of
+
+                                      -2-
+
+                  insurance or other products or services. When the Agency                   grants such authorization, Agency shall be paid the applicable                   commission on such sales, provided an appropriate agreement is                   in place with MICOA.
+
+         4.       If this agreement is terminated, MICOA shall, at the Agency's                   request, provide the Agency with a list of existing                   MICOA-billed policies placed by the Agency including their                   expiration dates.
+
+         5.       The Agency's name shall appear on all policies, premium                   notices, and cancellation notices to policyholders. Copies of                   all such items sent to policyholders shall be provided by                   MICOA to the Agency.
+
+C.       POLICY CANCELLATION
+
+         Cancellation of any policy in force, when requested in writing by the          insured, will be honored by MICOA, except for those MICOA is not          otherwise permitted to cancel.
+
+D.       EXPIRATIONS
+
+         1.       In the event this Agreement is terminated for any reason,                   MICOA agrees to purchase from Agency, and Agency agrees to                   sell to MICOA Agency's ownership interest in the expirations                   for the MICOA insurance issued pursuant to this Agreement. The                   purchase price shall be two times Agency's commissions on                   business produced directly by Agency during the last 12 full                   months preceding the termination date. The purchase shall be                   completed within 60 calendar days after the termination date.                   In return for this payment, for a two-year period following                   the termination date, Agency will not directly or indirectly                   sell any professional liability insurance to any individuals                   or entities who were MICOA insureds in Nevada at the time of                   termination of this Agreement.
+
+         2.       If Agency enters into a subagency agreement under which the                   subagency has the right to retain ownership of expirations on                   business produced by the subagency, then the purchase of                   expirations under subparagraph 1 above will not include the                   purchase of those subagency expirations, and the purchase                   price paid to Agency will not include the commissions paid for                   such business produced by the subagency.
+
+                                      -3-
+
+E.       AGENCY'S ERRORS AND OMISSION, AND FIDELITY & ELECTRONIC CRIME INSURANCE
+
+         The Agency will maintain valid errors and omissions insurance, with          minimum limits of $1,000,000 per incident, and a fidelity and          electronic crime policy through an insurer, both of which shall contain          terms and limits of coverage acceptable to MICOA covering the Agency's          solicitors and each of its employees. The Agency shall provide MICOA a          copy of each policy; doing so on a regular and current basis shall be a          precondition to all of Agency's rights under this Agreement, including          but not limited to the payment of all earned commissions.
+
+F.       TERMINATION OF AGREEMENT
+
+         1.       This agreement shall terminate:
+
+                  a.       Automatically if any public authority cancels or                            declines to renew the Agency's license or Certificate                            of Authority.
+
+                  b.       Immediately if either party gives detailed written                            notice to the other of alleged gross and willful                            misconduct, fraud or material misrepresentation.
+
+         2.       This Agreement shall terminate, subject to any automatic                   renewal or extension for one year as required by law, upon                   either party giving at least one hundred twenty (120) days                   advance written notice to the other, if not otherwise contrary                   to applicable law or this Agreement.
+
+         3.       If the Agency is delinquent in either accounting or payment of
+
+
+
+
+
+                  monies due MICOA, MICOA may by written notice to the Agency                   immediately terminate, suspend or modify any of the provisions                   of this agreement. Such action shall not be taken by MICOA                   over minor differences between the records of the Agency and                   MICOA.
+
+         4.       All supplies, including forms and policies furnished by MICOA                   and any copies or other reproductions of them, shall remain                   the property of MICOA and shall be returned to MICOA or its                   representative upon demand.
+
+G.       INDEMNIFICATION
+
+         The respective parties shall indemnify and hold one another harmless as          follows:
+
+                                      -4-
+
+         1.       MICOA shall indemnify and hold Agency harmless against any                   MICOA act or omission, except to the extent the Agency has                   caused, compounded, or contributed to such error.
+
+         2.       Agency shall indemnify and hold Agency harmless against any                   act or omission of the Agency, except to the extent MICOA has                   caused, compounded, or contributed to such error.
+
+         3.       The Agency and MICOA shall properly notify one another upon                   receiving notice of the commencement of any action related to                   such liabilities. MICOA shall be entitled to participate in                   any such action or in consultation with Agency and its carrier                   to assume the defense of any such action. If MICOA assumes the                   defense of any such action, it shall not be liable to the                   Agency for any legal or other expenses subsequently incurred                   on the Agency's behalf absent MICOA's advance approval of such                   expenses.
+
+         4.       Neither party shall, except at its own risk and expense,                   voluntarily assume any liability, make any payment or incur                   any expense without the prior written consent of the other.
+
+H.       POTENTIAL OPPORTUNITIES
+
+         1.       Other Programs. Agency and MICOA agree that Agency may be                   offered the opportunity to support MICOA's workers'                   compensation, and its other nonphysician professional                   liability or product programs in Nevada when MICOA proceeds                   with related marketing plans. Such plans may also include                   Agency's involvement in sales of MICOA commercial and personal                   products. Appropriate agreements must be negotiated separately                   from this agreement for each such product, and for each such                   territory, including but not limited to Nevada.
+
+         2.       Territory. Agency and MICOA further agree to consider, subject                   to successful negotiation of appropriate agreements separate                   from this agreement, expansion of Agencies' sales territories                   for MICOA beyond Nevada.
+
+I.       MISCELLANEOUS
+
+         1.       Amendment. This agreement may be amended only in writing by                   mutual agreement of the Agency and MICOA, except that MICOA's                   name herein shall be deemed changed automatically for purposes                   of this agreement without written amendment upon approval of                   any such change by MICOA's domiciliary regulator.
+
+         2.       Non Waiver. Any failure by MICOA to insist upon compliance                   with any provisions of this Agreement or of the rules and                   regulations of MICOA shall not be construed as or constitute a                   waiver of them by MICOA.
+
+                                      -5-
+
+         3.       Integrated Agreement. This Agreement and its attachments as                   modified from time to time supersedes and replaces as of its                   effective date, all previous agreements, if any, between MICOA                   and the Agency. There are other agreements between MICOA and                   the Agency's parent corporation, SC&W, which are not                   superceded.
+
+         4. &bbsp;     Independent Contractor. The Agency is an independent insurance                   Agency and independent contractor, and not an employee,                   manager, officer or owner of MICOA.
+
+         5.       Applicable Law. This Agreement shall be interpreted under the                   laws of the State of Nevada. Any provisions of this Agreement                   or any amendments to the Agreement that are or become in                   conflict with any applicable statutes or regulations shall be                   deemed to be amended to conform to those statutes or                   regulations.
+
+         6.       Counterparts. This Agreement and any Exhibits which require                   signatures may be executed in counterparts which shall
+
+
+
+
+
+                  together be regarded as binding upon the Parties.
+
+         7.       Authority. The persons signing below represent and warrant                   that they are duly authorized representatives of the                   respective Parties, fully willing and able to execute this                   Agreement.
+
+         8.       Assignment. MICOA may assign this Agreement to its parent,                   affiliate, or subsidiary corporations who are licensed                   insurers upon written notice to Agency. Agency may not assign                   this Agreement without the written permission of MICOA or its                   successors or assigns.
+
+         9.       Resolution of Disputes. In the event of any dispute arising                   out of this Agreement, MICOA and Agency agree to submit such                   dispute to arbitration as follows:
+
+                  a.       There shall be three arbitrators; one shall be                            selected by the Agency, one shall be selected by                            MICOA, and a third shall be selected by those two                            arbitrators. If the two arbitrators cannot agree on                            the selection of a third, American Arbitration                            Association's regional office closest to Agency's                            main office shall be requested to appoint the third                            arbitrator.
+
+                  b.       The determination of the arbitrators shall be final                            and binding upon the Agency and MICOA.
+
+                  c.       Neither MICOA nor the Agency shall be entitled to                            punitive and/or exemplary damages.
+
+                                      -6-
+
+                  d.       The arbitration shall be conducted in accordance with                            the procedures of the above referenced regional                            office of the American Arbitration Association. The                            Agency and MICOA shall pay the cost of their                            arbitrator and share equally in the expense of the                            third arbitrator.
+
+                  e.       Either Party, may where permitted by the law of                            Nevada, enter judgment upon the arbitrators' award.
+
+         10.      Year 2000 Compliance. Agency must at times assure that any of                   its computers, data processing systems, software components,                   and network arrangements use for MICOA business completely and                   accurately, present, produce, store and calculate all dates                   after December 31, 1999; and that they will not produce                   abnormally ending or incorrect results involving such dates as                   used in any forward or regression data based functions. All                   such items must yield date-related functionalities and date                   fields which accurately indicate the century and millennium                   and correctly perform all calculations involving a four digit                   year field.
+
+Signed and effective this 25th day of May, 1999.
+
+                                         AGENCY
+
+                                         By:  /s/ Terrence L. Walsh                                             ------------------------------------
+
+                                         Its:   President
+
+                                         MICOA
+
+                                         By:  /s/ Thomas C. Payne, M.D.                                             ------------------------------------                                             Thomas C. Payne, M.D.                                             Secretary/Treasurer
+
+                                      -7-
+
+                                    EXHIBIT A
+
+                                AGENCY AGREEMENT                    SCHEDULE OF COMMISSIONS AND WRITTEN PREMIUM
+
+New Business Policies:             12% of the annual premium Renewal Policies:                  12% of the annual premium
+
+Appointed agents who are not a party to a current MICOA agency contract and/or
+
+
+
+
+
+are not affiliated with an agency which has an agency contract will receive a 1% commission rate for all lines of business stated above.
+
+Commission will decrease by .5% effective 10/1/99 as part of a repayment program under a project memorandum dated 4/7/99. This decrease will stay in effect until SC&W reaches $10MM in premium or at a maximum of 10 years.
+
+                                      -8-
+
+April 7, 1999
+
+Mr. Terrence Walsh Stratton, Cheeseman & Walsh, Inc. 1301 N. Hagadorn East Lansing, MI 48823
+
+RE:      NEVADA DEPARTMENT          PROJECT MEMORANDUM
+
+Dear Terry:
+
+In response to MICOA's request to develop a complete insurance distribution system for Nevada, including physicians professional liability and personal and commercial insurance by July 1999, Stratton, Cheeseman & Walsh, Inc. (SC&W) has spent and will continue to spend a substantial amount of time and money. In recognition that these expenditures will directly benefit MICOA, SC&W and MICOA agree to the following:
+
+-    During the first two years of developing the Nevada distribution system, a      portion of the start up costs will be shared. Subject to compliance with a      detailed budget developed by SC&W and MICOA, these reimbursable costs shall      include:
+
+     -    Salaries and benefits for SCW-Nevada, Inc. employees and agents.
+
+     -    20% of your total personal benefits and salary, and 100% of your           personal travel expenses incurred with respect to the Nevada office,           which respective percentages are intended to recognize your personal           support of MICOA's Nevada initiative.
+
+     -    Legal expenses directly attributable to the Nevada initiative.
+
+     -    Nevada office set up.
+
+     -    Consultant's expenses paid by SC&W in direct support of the           initiative.
+
+     -    The above costs are to be designated and itemized in the preapproved           budget and reimbursed by MICOA at 100% for the first full year of           development and 50% for the second year. It is agreed that the first           year began effective October 1, 1997.
+
+-    All other costs attributable to the normal operation of the Nevada      insurance agency site are the sole responsibility of SC&W.
+
+-    After the first two years (i.e. after October 1, 1999) all expenses will      be borne by SC&W and those amounts paid to SC&W during the first two years      shall be repaid. Repayment shall be through reduction of commissions due      SC&W by 0.5% or if
+
+                                      -7-
+
+     SC&W exceeds $10.0 million in premium revenues by offset in the event any      money is owed the Agency by MICOA. Such reduction or offset shall occur for      so long as necessary to repay amounts reimbursed by MICOA during the      two-year period of development; but in no event will repayment be collected      for a period of greater than ten years. Any unpaid amounts at the end of      ten years shall be forgiven by MICOA.
+
+-    Nevada rent expenses will be shared on a 50/50 basis between MICOA and      SC&W.
+
+-    In order to allow SC&W to expand the distribution system in Nevada with      select and controlled subagents, an exclusive agency agreement will be      negotiated which will spell out the terms and conditions of the      relationship. A commission rate of 12% will be paid for both new and      renewal physicians liability business. Other commission rates will be      determined as products become available. This Agency Agreement should be      finalized by April 30, 1999.
+
+-    MICOA may pay future payments advanced pursuant to this letter on a monthly      basis, unless doing so would be impractical, in which case another periodic      form of&bbsp;payment will be arranged. Amounts owed for past time periods will      be paid as follows: one-third by March 25, 1999; one-third by May 1, 1999;      and one-third by June 1, 1999. All other amounts owed under this Project      Memorandum to be paid by October 1, 1999.
+
+SC&W's responsibilities, under this Project Memorandum, will include assisting MICOA with market assessment, distribution, and sales integration into Nevada. SC&W agrees not to serve in a strategic marketing capacity for another insurer
+
+
+
+
+
+in Nevada while it is providing such services for MICOA or for a period of one year thereafter.
+
+Terry, please countersign and return this letter to indicate your acceptance.
+
+Sincerely,
+
+MUTUAL INSURANCE CORPORATION OF AMERICA
+
+/s/ Thomas C. Payne, M.D. ----------------------------------------- Thomas C. Payne, M.D. Secretary/Treasurer
+
+ACCEPTED AND AGREED TO: STRATTON, CHEESEMAN & WALSH, INC.
+
+/s/ Terrence L. Walsh ----------------------------------------- Terrence L. Walsh CEO

full_contract_txt/AMERICASSHOPPINGMALLINC_12_10_1999-EX-10.2-SITE DEVELOPMENT AND HOSTING AGREEMENT.txt

@@ -0,0 +1,183 @@
+EXHIBIT 10.2
+
+                    SITE DEVELOPMENT AND HOSTING AGREEMENT
+
+                  This SITE DEVELOPMENT AND HOSTING AGREEMENT (the "Agreement") dated as of August 9, 1999 is made between Hanover Direct, Inc. ("HDI"), a New Jersey Corporation, located at 1500 Harbor Boulevard, Weehawken, NJ 07087, and The Deerskin Companies, Inc. (the "Company"), a Nevada corporation, located at 2500 Arrowhead Drive, Carson City, NV 89706. Each of the parties hereto shall be referred to as a "Party".
+
+                  In consideration of the mutual promises and covenants set forth below, HDI and the Company agree as follows:
+
+1. HDI's Responsibilities.
+
+                  1.1 HDI shall design, develop, implement, operate, maintain and manage, and enable the Company to establish a presence on the World Wide Web ("Site") to make available to Internet users on demand, men's and women's apparel and accessories from the Deerskin Catalog ("Deerskin Products"). As used in this Agreement, "Deerskin Products" shall not include (i) closeout merchandise which the Company may identify as "Deerskin" branded items, if such is the case, nor (ii) products from the Company's Joan Cook Catalog.
+
+                  1.2 HDI shall bear all costs associated with the design, development, implementation, operation, maintenance and management of the Site, including, without limitation, technology and labor.
+
+                  1.3 HDI shall host and maintain the Site on a server provided by HDI.
+
+                  1.4 HDI shall provide the Company with access to, and
+
+the right to use, a computer system on which the Site will be stored and operated, with a direct Internet connection of shared but greater than T-1 bandwidth, plus capacity to process continuously during burst periods. HDI shall also provide the Company with access to HDI's software and Content administration tools for purposes of allowing the Company to monitor current catalog information.
+
+                  1.5 For the purposes of collecting orders for Deerskin Products from the Site and to communicate to the Site the unavailability of certain Deerskin Products, HDI shall provide export files in the format provided by the Company. HDI shall bear the programming and software costs relating to efforts required to create order export files and receive and process import files of the Company's inventory information.
+
+                  1.6 HDI shall have the Site fully operational and accessible on demand by users of the Internet no later than sixty (60) days from the date this Agreement has been executed by both Parties. In the event that HDI fails to have the Site fully operational within seventy (70) days from the date of this Agreement, the Company shall have the right to terminate this Agreement without penalty.
+
+                  1.7 HDI shall distribute the Site through the world wide protocol of the Internet using distribution channels used by HDI sites and other similar distribution channels.
+
+                  1.8 HDI agrees that it shall promote the Site and Deerskin Products no less favorably than it promotes HDI's
+
+                                       -2-
+
+catalog titles. HDI's promotion of the Site and Deerskin Products shall include, but not be limited to, the incorporation of the Site and Deerskin Products into HDI's promotion calendars with Xoom.com and Excite for the term of this Agreement. HDI agrees that the costs of any such promotions shall be borne by HDI.
+
+2. Company's Responsibilities.
+
+                  2.1 The Company shall provide all Content to HDI to be included in the Site no later than ten (10) days from the date this Agreement has been executed by both Parties.
+
+                  2.2 The Company shall bear all costs associated with the processing of customer orders.
+
+3. Fees; Payment.
+
+                  3.1 The Company shall pay HDI thirty percent (3016) of the Net Sales in excess of Eleven Thousand Dollars ($11,000) per calendar month. "Net Sales" shall mean all revenues from the sale of Deerskin Products on the Site including shipping and handling charges, minus refunds and exchanges.
+
+
+
+
+
+                  3.2 Payments to HDI shall be due monthly within thirty (30) days of the end of each calendar month and shall be accompanied by documentation reasonably detailing the calculation of the payment.
+
+                  3.3 Quarterly reconciliation of payments shall be conducted within thirty (30) days of the end of each calendar quarter to adjust for refunds and exchanges not taken into account in payments made to HDI.
+
+                                       -3-
+
+                  3.4 HDI's General Manager (as hereinafter defined), may upon no less than thirty (30) days prior written notice to the Company, have the right to inspect the records of the Company's General Manager reasonably related to the calculation of such payments during the Company's normal business hours. The fees incurred by HDI in connection with the inspection shall be borne by HDI.
+
+4. Term; Termination; Termination Payment.
+
+                  4.1 Term; Termination. This Agreement shall be effective as of that date (the "Effective Date") the Site becomes fully operational as set forth in writing and executed by both Parties and shall continue for a period of one (1) year from the Effective Date. This Agreement shall be automatically renewed for an additional one year period on each anniversary of the Effective Date, unless terminated by either Party hereto upon ninety (90) days written notice to the other. Such notice shall specify the date on which this Agreement is to be terminated (the "Termination Date").
+
+                  4.2 Termination Payment.
+
+                  (a) In the event the Company terminates this Agreement, the Company shall pay to HDI a termination payment, (the "Termination Payment") the amount of which shall be an amount equal to the aggregate Net Sales for the twelve (12) months preceding the Termination Date less $800,000, the balance of which shall be divided by two.
+
+                  (b) In the event that the amount of the Termination
+
+                                       -4-
+
+Payment is determined pursuant to this Section 4.2 to be less than or equal to zero, then no Termination Payment shall be due to HDI nor shall HDI be required to make any termination payment to the Company if the amount is determined to be less than zero.
+
+                   (c) The Termination Payment, if any, shall be payable by the Company in eight (8) equal payments to be made quarterly, commencing thirty (30) days after the termination date.
+
+5. Site; Site Management.
+
+                   5.1 URL. The Uniform Resource Locator, or address on the World Wide Web for the Site ("URL") shall be as mutually agreed by the Parties and shall be established and registered as necessary by HDI at no cost to the Company.
+
+                   5.2 The Company shall have exclusive artistic and editorial control over the Site, including, without limitation, the implementation of the Content on the Site and the design and look and feel of the Site. Neither the Site nor any portion of thereof shall be deemed accepted and approved by the Company unless and until the Company accepts and approves same in writing to HDI. No portion of the Site shall be made available on the Internet without the consent of the Company.
+
+                   5.3 The Company shall be deemed the "merchant of record" for all commercial transactions on the Site related to Deerskin Products. Until the sale of the Deerskin Products to the consumer from the Site all title to the Deerskin Products shall remain with the Company.
+
+                  5.4 Each of HDI and the Company shall appoint a
+
+                                       -5-
+
+General Manager of its own to act as liaison with the other Party for the Site (each a "General Manager") who shall bear sole responsibility for bookkeeping and business operations of the Site on a day-today basis. Each General Manager shall have the authority to make and convey decisions on behalf of each Party and to be the liaison with the other Party for all production and Content matters.
+
+6. Exclusivity.
+
+                  6.1 Except as provided in Section 6.2, during the term of this Agreement, the Company shall not participate in any project similar to the Site on the Internet with respect to Deerskin Products or products substantially similar to Deerskin Products (including, without limitation, the products of Wilson's House of Leather, Excelled and companies similar to Wilson's House of Leather and Excelled) and HDI shall have the exclusive right to use of the "Deerskin" brand for a self-contained web site for the offering of Deerskin Products directly to the consumer on the Internet.
+
+                  The Company hereby grants to HDI a non-exclusive, limited, non-transferable license to use the Company's "Deerskin" trademarks, service
+
+
+
+
+
+marks, and logos (collectively, "Marks") solely for the purpose of carrying out its obligations under this Agreement. Except as provided herein, no licenses of the Company's Marks are granted or implied under this Agreement.
+
+                  6.2 The Company retains the right to establish a web site on the Internet for the purpose of offering closeout
+
+                                        -6-
+
+merchandise which may be identified as "Deerskin" branded products, if such is the case.
+
+                  6.3 During the term of this Agreement and for a period of two years after the expiration date of this Agreement, HDI shall not participate in any project similar to the Site on the Internet from which products substantially similar to Deerskin Products (including, without limitation, the products of Wilson's House of Leather, Excelled and and companies similar to Wilson's House of Leather and Excelled) are offered for sale to consumers on the Internet.
+
+7. Cross-Promotions.
+
+                  7.1 Joint Efforts. The Parties agree to cross-promote one another's products through the use of their respective customer e-mail lists on a reciprocal and equitable basis. The Parties specifically agree that the form, content and design of any and all advertisements or promotional materials featuring the other Party or such Party's products shall continue to be developed by or on behalf of such Party and shall be subject to such Party's final approval. The Parties agree further that any promotions or advertisements involving the use of a Party's customer e-mail list by the other Party shall be subject to the prior approval of such Party.
+
+                  7.2 Mutual Covenants as to Advertisements. The Parties hereby covenant and agree that their respective marketing and advertising efforts provided for herein shall at all times comply with all applicable laws rules and regulations and will
+
+                                       -7-
+
+not contain any material which is obscene, threatening, fraudulent, harassing, libelous, infringing of third party intellectual property rights, otherwise illegal or, in the reasonable judgment of the Party required to display or transmit the advertisement, offensive.
+
+8. Confidentiality.
+
+                  8.1 Unless otherwise agreed to in writing by the Company, HDI shall maintain the strict confidentiality and shall not disclose to any third party the existence of, or terms and conditions of this Agreement. In addition, HDI, in performing the Services for the Company hereunder, may have access to or be exposed to, directly or indirectly, Content, user information, data, knowledge and proprietary and trade secret information of the Company in oral, graphic, written, electronic or machine readable form (hereinafter collectively referred to as "Confidential Information"). Confidential Information shall not include information which can be demonstrated: (a) to have been rightfully in the possession of HDI from a source other than the Company prior to the time of disclosure of said information to HDI hereunder ("Time of Receipt"); (b) to have been in the public domain prior to the Time of Receipt; (c) to have become part of the public domain after the Time of Receipt by a publication or by any other means except an unauthorized act or omission or breach of this Agreement on the part of HDI, its employees, or agents; or (d) to have been supplied to HDI after the Time of Receipt by a third party who is under no obligation to the
+
+                                       -8-
+
+Company to maintain such information in confidence.
+
+                  8.2 HDI Obligations. All Confidential Information of the Company shall be held in strict confidence by HDI and shall not be disclosed or used without express written consent of the Company, except as may be required by law. HDI shall use reasonable measures and reasonable efforts to provide protection for Confidential Information, including measures at least as strict as those HDI uses to protect its own Confidential Information.
+
+                  8.3 Company's Obligations. The Company acknowledges that it may receive confidential information of HDI relating to its technical, marketing, product and/or business affairs. All such confidential information of HDI shall be-held in strict confidence by the Company and shall not be disclosed or used without express written consent of HDI, except as may be required by law. The Company shall use reasonable measures and reasonable efforts to provide protection for such confidential information of HDI, including measures at least as strict as those the Company uses to protect its own Confidential Information.
+
+                                      -9-
+
+9. Warranties.
+
+                   (a) Each Party represents and warrants to the other Party that (1) it is a corporation organized, validly existing and in goodstanding under the laws of the state of its incorporation; (2) it has the full right power and authority to enter into, and to perform the obligations contemplated in this Agreement, and the person signing on its behalf has the full right,
+
+
+
+
+
+power and authority to enter into this Agreement on behalf of the Party; (3) this Agreement constitutes a legal valid and binding obligation of the Party, enforceable in accordance with its terms; and (4) the execution of this Agreement will not conflict in any way with any pre-existing agreements or understandings of the Party with any person or entity.
+
+                                      -10-
+
+                   (b) HDI acknowledges that the Company is currently a party to a web-hosting agreement with Globix Corporation (the "Globix Agreement") for the Company's web site offering Deerskin Products to Internet customers. HDI agrees that the Company shall not be deemed in breach of any provision of this Agreement by virtue of the Globix Agreement remaining in effect after this Agreement has been executed by both Parties, provided, that the Globix Agreement is terminated on or prior to the Effective Date
+
+10. General Provisions.
+
+                   10.1 Notices. Any notice under this Agreement will be in writing and delivered by personal delivery, express courier, confirmed facsimile, or certified or registered mail, return receipt requested and will be deemed given upon personal delivery, one (1) day after deposit with express courier, upon confirmation of receipt of facsimile or five (5),days after deposit in the mail. Notices will be sent to a Party at its address set forth above or such other address as that Party may specify in writing pursuant to this Section.
+
+                   10.2 No Joint Venture. The Parties agree that and acknowledge that the relationship of the Parties is in the nature of an independent contractor. This Agreement shall not be deemed to create a partnership or joint venture and neither Party is the other's agent, partner, employee or representative. Neither Party shall have any right, power or authority to enter into any agreement for or on behalf of, or to assume or create any obligation, liability, or responsibility on behalf of the other.
+
+                                      -11-
+
+This Agreement will not be construed to create or imply an association, joint venture, co-ownership, or partnership between the Parties or to impose any partnership obligation or liability upon either Party.
+
+                  10.3 Assignment. This Agreement shall be binding upon, and shall inure to the benefit of and be enforceable by, the parties hereto and their respective legal representatives, successors and assigns, but no other person shall acquire or have any rights under this Agreement.
+
+                  10.4 Waiver of Breach. The failure of either Party at any time to enforce any of the provisions of this Agreement shall not be deemed or construed to be a waiver of any such provisions, or in any way to affect the right of any Party hereto to thereafter enforce each and every provision of this Agreement. No waiver of any breach of any provisions of this Agreement shall be effective unless set forth in writing and executed by the Party against which enforcement of such waiver is sought; and no waiver of any such breach shall be construed or deemed to be a waiver of any other or subsequent breach.
+
+                  10.5 Governing Law. This Agreement shall be governed and construed and enforced in accordance with the laws of the State of New York applicable to contracts made and to be performed exclusively in that State without giving effect to the principles of conflict of laws.
+
+                  10.6 Severability. If any provision of this Agreement is declared invalid or otherwise determined to be unenforceable
+
+                                      -12-
+
+for any reason, such provision shall be deemed to be severable from the remaining provisions of this Agreement, which shall otherwise remain in full force and effect.
+
+                  10.7 Survival. Sections 6.3, 7, 9 and 10 of this Agreement shall survive and continue in full force and effect for a period of two years from the expiration or termination of this Agreement.
+
+                  10.7 Entire Agreement. This Agreement is the complete and exclusive agreement between the Parties with respect to the subject matter hereof, superseding any prior agreements and communications (both written and oral) regarding such subject matter. This Agreement may only be modified, or any rights under it waived, by a written document executed by both Parties.
+
+                  10.8 Headings; Counterparts. The section headings in this Agreement are for reference purposes only and shall not define, limit or affect the meaning or interpretation of this Agreement. This Agreement is being executed in two or more counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument.
+
+                           IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date first above written.
+
+THE DEERSKIN COMPANIES, INC.                HANOVER DIRECT, INC.
+
+By                                          By   ------------------------------              --------------------------
+
+
+
+
+
+  Name: Irwin Schneidmill                     Name: Rakesh K. Kaul   Tilte: President                            Title:President
+
+                                      -13-

full_contract_txt/ANIXABIOSCIENCESINC_06_09_2020-EX-10.1-COLLABORATION AGREEMENT.txt

@@ -0,0 +1,253 @@
+Exhibit 10.1
+
+Redactions with respect to certain portions hereof denoted with "***"
+
+COLLABORATION AGREEMENT
+
+This Collaboration Agreement (the "Agreement") is made as of April 14th, 2020 (the "Effective Date") by and between Anixa Biosciences, Inc., a Delaware corporation, located at 3150 Almaden Expressway, Suite 250, San Jose, CA 95118, U.S.A. ("Anixa"), and OntoChem GmbH, a German limited liability company, located at Blücherstr. 24, D-06120 Halle (Saale), Germany ("OntoChem"). Anixa and OntoChem are referred to herein individually as a "Party" and collectively as the "Parties."
+
+WHEREAS, the Parties wish to collaborate in the discovery and development of novel drug candidates for the treatment of COVID-19 in accordance with the terms and conditions of this Agreement.
+
+NOW, THEREFORE, in consideration of the premises and the mutual promises set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
+
+1. Defined Terms.
+
+1.1 "Affiliate" means, with respect to a Party, any entity directly or indirectly controlled by, controlling or under common control with such Party. For purposes of this definition, "control" means (a) ownership of fifty percent (50%) (or such lesser percentage which is the maximum allowed to be owned by a foreign entity or investor in a particular jurisdiction) or more of the outstanding voting stock or other ownership interest of an entity, or (b) possession of the power to (i) elect, appoint, direct or remove fifty percent (50%) or more of the members of the board of directors or other governing body of an entity or (ii) otherwise direct or cause the direction of the management or policies of an entity by contract or otherwise.
+
+1.2 "Hit Compound" means any chemical entity that is determined in performing the Research Plan to meet the Hit Criteria.
+
+1.3 "Hit Criteria" means the criteria identified as "Hit Criteria" as set forth in the Research Plan.
+
+1.4 "Invention" means any invention, know-how, data, discovery or proprietary information, whether or not patentable, that is made or generated solely by the Representatives of Anixa or OntoChem or jointly by the Representatives of Anixa and OntoChem in performing the Research Plan, including all intellectual property rights in the foregoing.
+
+1.5 "Representative" means, with respect to a Party, an officer, director, employee, agent or permitted subcontractor of such Party.
+
+1.6 "Research Plan" means the research plan attached hereto as Exhibit A.
+
+1
+
+
+
+
+
+1.7 "SAR" means the relationship between the chemical or three-dimensional structure of a compound and its biological activity, and includes the determination of the chemical groups responsible for evoking a target biological effect.
+
+1.8 "Target" means: (a) any protease of any coronavirus, including Mpro; (b) the Nsp15-pRB ribonuclease protein- protein interaction; (c) all mutants and variants of any molecule or component referenced in clauses (a) or (b); and (d) all truncated forms (including fragments) of any molecule or component referenced in clauses (a) or (b) or mutant or variant referenced in clause (c).
+
+1.9 "Variant" means, with respect to any Hit Compound: (a) all compounds within the genus of compounds to which such Hit Compound would belong under United States patent laws as referenced in the Selection Notice (as defined below); and (b) any base form, metabolite, ester, salt form, racemate, stereoisomer, polymorph, hydrate, anhydride or solvate of such Hit Compound or any other compound described in clause (a) (in the case of this clause (b), without regard to whether such compound is referenced in the Selection Notice).
+
+2. Research Program.
+
+2.1 Performance. The Parties will diligently perform their respective activities set forth in the Research Plan (such activities, collectively, the "Research Program") in accordance with the timelines set forth therein, with the objective of identifying Hit Compounds and Lead Scaffolds that modulate the applicable Target. Without limiting the foregoing, OntoChem will (a) provide all deliverables set forth in the Research Plan (each, a "Deliverable") and (b) obtain any authorizations, approvals and licenses required for performance of the Research Plan. If any terms set forth in the Research Plan conflict with the terms set forth in this Agreement, the terms of this Agreement will control unless expressly indicated to the contrary in the Research Plan. The Research Plan may not be amended without the prior written consent of both Parties. If, from time to time, the Parties desire to expand the scope of the Research Program, then they will negotiate in good faith a potential amendment of the Research Plan in regard to such expanded scope, on commercially reasonable terms, but neither Party will be obligated to enter into any such amendment.
+
+2.2 Weekly Updates. OntoChem will provide Anixa with weekly (or more frequently as requested) updates regarding its progress under the Research Program via teleconference, videoconference or e-mail, and the Parties will make appropriate personnel available in a timely manner to discuss and provide feedback in regard to such updates.
+
+2.3 Delivery of Data. In conjunction with each weekly update described in Section 2.2, OntoChem will deliver to Anixa all data generated under the Research Plan since the preceding update. In addition, Anixa will have the right to reasonably request additional information relating to such data, and OntoChem will respond to such requests promptly with any such additional information in its possession or control, provided that, for clarity, OntoChem will not be required to perform any new or additional research in order to generate any such additional information.
+
+2
+
+
+
+
+
+2.4 Selection of Lead Scaffolds. Within one year following completion of all activities under the Research Plan (the "Selection Deadline"), Anixa, in good faith consultation with OntoChem, will have the right to select up to two hundred (200) Hit Compounds (each, a "Selected Hit Compound"), by providing OntoChem with written notice of such Selected Hit Compound(s) (the "Selection Notice"), and each Selected Hit Compound, along with all Variants of such Selected Hit Compound referenced in the Selection Notice, is hereby designated as a "Lead Scaffold" under this Agreement. Commencing upon selection of a Selected Hit Compound, Anixa (itself and through its Affiliates and designees) will have sole authority over and control of the further development, manufacture, and commercialization of the corresponding Lead Scaffold and any product candidate or product incorporating a compound from such Lead Scaffold. Following the Selection Deadline, Anixa will have no further rights with respect to any Hit Compound that is not a Selected Hit Compound or included within a Lead Scaffold (each, a "Rejected Hit Compound"), provided that, during the period of two (2) years following the Selection Deadline, neither OntoChem nor any of its Affiliates will use or disclose to any third party any Rejected Hit Compound or any Variant thereof, including the identity, structure or SAR information of any such compound, for application as anti-viral agents or protease inhibitors, for purposes of modulating any Target or for treatment of virus-related conditions. In case OntoChem finds a novel and unexpected antiviral use of those Rejected Hit Compounds during this 2-years period, it will notify Anixa about these findings and Anixa has the right of first negotiation during a period of 6 months after this notification. If Anixa decides to not license those uses or compounds for this novel antiviral use, OntoChem is free to develop those molecules further as its own intellectual property without any further restrictions.
+
+2.5 Subcontractors. OntoChem may engage one or more subcontractors to perform its activities under the Research Plan with the prior written approval of Anixa and provided that, with respect to any such subcontractor, OntoChem will (a) be responsible and liable for the performance of such subcontractor and (b) enter into a written agreement (i) consistent with terms and conditions of this Agreement, including with respect to confidentiality and intellectual property, and (ii) prohibiting such subcontractor from further subcontracting. For clarity, vendors where commercial building blocks or compounds will be purchased are nor regarded as subcontractors.
+
+2.6 Target Exclusivity. During the term of this Agreement, except in the performance of its obligations or exercise of its rights under this Agreement, neither OntoChem nor any of its Affiliates will discover, research, develop, manufacture or commercialize any compound or product directed to any Target, either independently or for or in collaboration with a third party (including the grant of a license to any third party), or have any of the foregoing activities performed on behalf of OntoChem or any of its Affiliates by a third party. For clarity, the foregoing includes the screening (including via computational methods) of any compound library or virtual compound library against any Target.
+
+2.7 Records. Each Party will maintain complete and accurate records of all activities performed by or on behalf of such Party under the Research Program and all Inventions made or generated by or on behalf of such Party in the performance of the Research Program. Such records will be in sufficient detail and in good scientific manner appropriate for patent and regulatory purposes. Each Party will provide the other Party with the right to inspect such records, and upon request will provide copies of all such records, to the extent reasonably required for the exercise or performance of such other Party's rights or obligations under this Agreement, provided that any information disclosed under this Section 2.7 will be subject to the terms and conditions of Section 5. Each Party will retain such records for at least three (3) years following expiration or termination of this Agreement or such longer period as may be required by applicable law or regulation.
+
+3
+
+
+
+
+
+2.8 Debarment. Each Party hereby represents and warrants to the other Party that neither it nor any of its Affiliates or personnel has been debarred under any health care laws or regulations and that, to its knowledge, no investigations, claims or proceedings with respect to debarment are pending or threatened against such Party or any of its Affiliates or personnel. Neither Party nor any of its Affiliates will use in any capacity, in connection with the Research Program, any person or entity who has been debarred. Each Party agrees and undertakes to promptly notify the other Party if such Party or any of its Affiliates or personnel becomes debarred or proceedings have been initiated against any of them with respect to debarment, whether such debarment or initiation of proceedings occurs during or after the term of this Agreement.
+
+3. Financial Terms.
+
+3.1 Research Program Payments. In consideration for OntoChem's performance of its activities under the Research Plan, Anixa will:
+
+(a) pay OntoChem 100,002 Euros in six (6) equal installments as follows: (i) 16,667 Euros within five (5) days after the Effective Date; and (ii) five (5) installments in the amount of 16,667 Euros on each one-month anniversary of the Effective Date, except that the last such payment will be due within thirty (30) days after completion of all activities under the Research Plan; and
+
+(b) reimburse OntoChem for its out-of-pocket expenses incurred in performing the Research Plan on a pass- through basis without mark-up, within thirty (30) days after delivery of an invoice therefore (including reasonable supporting documentation), provided that Anixa has approved such expenses in advance and in writing (including in regard to the selection of specific Hit Compounds to be synthesized and analyzed in biological assays). It is estimated that OntoChem's out-of-pocket expenses under the Research Plan will include 110,000 Euros payable to Tube Pharmaceuticals GmbH as a subcontractor of OntoChem, subject to Section 2.5.
+
+(c) High-throughput screening compounds
+
+OntoChem will forward a commercial proposal to acquire these compounds at the sole discretion of Anixa. Both parties will agree on payment conditions.
+
+(d) Extra custom synthesis
+
+OntoChem will forward a commercial proposal to have synthesized these compounds at the sole discretion of Anixa. Both parties will agree on payment conditions.
+
+(e) Biological testing
+
+OntoChem will forward a commercial proposal to have biologically test these compounds at the sole discretion of Anixa. Both parties will agree on payment conditions.
+
+3.2 Lead Scaffold Payments. For each Lead Scaffold selected by Anixa, Anixa will pay OntoChem an annual fee of 10,000 U.S. Dollars, payable within thirty (30) days following each anniversary of the date of the Selection Notice, until five (5) years after the first commercial sale of the first product incorporating a compound from such Lead Scaffold, subject to Section 4.3 with respect to any Terminated Scaffold (as defined below).
+
+3.3 Milestone Payment. Anixa will pay OntoChem a one-time milestone payment of 300,000 U.S. Dollars within thirty (30) days following the dosing of the first patient in the first human clinical trial for the first product incorporating a compound from a Lead Scaffold.
+
+4
+
+
+
+
+
+3.4 Payment Terms. Payments to OntoChem will be made by check or by wire transfer of immediately available funds to such bank account as designated in writing by OntoChem from time to time. Taxes (and any penalties and interest thereon) imposed on any payment made by Anixa to OntoChem will be the responsibility of OntoChem. The fees for the respective bank transfers will be borne by Anixa.
+
+3.5 Financial Records. OntoChem will maintain complete and accurate books and accounting records related to all out-of-pocket expenses incurred in performing the Research Plan. These records will be available for inspection during regular business hours upon reasonable notice by Anixa, or its duly authorized representative, at Anixa's expense, for three (3) years following the end of the calendar year in which such expenses are invoiced. If it is determined that Anixa has overpaid for any expenses passed through by OntoChem under this Agreement, OntoChem will promptly reimburse Anixa for the amount of such overpayment and, if such overpayment represents more than five percent (5%) of the corresponding amount due, OntoChem will pay Anixa's reasonable fees and expenses incurred in connection with such inspection.
+
+4. Term and Termination.
+
+4.1 Term. Unless earlier terminated in accordance with Section 4.2 or 4.3, this Agreement will be in effect from the Effective Date until completion of the Research Program.
+
+4.2 Termination by Anixa. This Agreement may be terminated by Anixa, without cause, upon at least thirty (30) days written notice to OntoChem.
+
+4.3 Termination of Lead Scaffolds. For each Lead Scaffold, if (a) neither Anixa nor any of its Affiliates, licensees or assignees has dosed the first patient in a human clinical trial for a product incorporating a compound from such Lead Scaffold by the fifth (5th) anniversary of the date of the Selection Notice, or (b) Anixa earlier provides written notice of termination of such Lead Scaffold referencing this Section 4.3, then such Lead Scaffold (each, a "Terminated Scaffold") will thereupon cease to be a Lead Scaffold under this Agreement and thereafter, notwithstanding anything to the contrary in this Agreement: (i) Anixa will promptly assign to OntoChem all right, title and interest in and to any patents and patent applications owned by Anixa that claim such Terminated Scaffold (including the composition, use or manufacture thereof) and, following such assignment, OntoChem will exclusively control the filing, prosecution, maintenance and enforcement of such patents and patent applications; (ii) the identity, structure and SAR information of such Terminated Scaffold will be deemed to be the Confidential Information of OntoChem; (iii) Anixa will not owe any further annual fees under Section 3.2 for such Terminated Scaffold; and (iv) this Agreement will otherwise remain in full force and effect.
+
+4.4 Termination for Cause. This Agreement may be terminated by either Party for material breach by the other Party, provided that the terminating Party has given the breaching Party written notice of the breach and at least sixty (60) days to cure the breach prior to the effective date of termination.
+
+4.5 Effects of Termination. Promptly following expiration or termination of this Agreement, OntoChem will provide Anixa with an invoice (including reasonable supporting documentation) for any pre-approved out-of-pocket expenses (including non- cancellable commitments) incurred by OntoChem in performing the Research Plan and not yet reimbursed by Anixa, and Anixa will pay such invoice within thirty (30) days after receipt thereof. In addition, if this Agreement is terminated prior to completion of the Research Program, OntoChem will promptly furnish to Anixa any Deliverable or other work product generated to date and not previously provided to Anixa, including work in process.
+
+5
+
+
+
+
+
+4.6 Survival. Expiration or termination of this Agreement will not affect the rights and obligations of the Parties that accrued prior to the effective date of such expiration or termination. The following provisions will remain in effect following expiration or termination of this Agreement and the Parties will continue to be bound thereby: Sections 2.4 (last three sentences), 2.7, 2.8 (last sentence only), 3.2, 3.3, 3.4, 3.5, 4.5, 4.6, 5, 6, 8 and 9.
+
+5. Confidentiality.
+
+5.1 Definition. "Confidential Information" means any information disclosed (directly or indirectly) by a Party (in such capacity, "Discloser") to the other Party (in such capacity, "Recipient") in connection with this Agreement whether in written, graphic, electronic, tangible or any other form. Confidential Information will not, however, include any information that: (a) was publicly known or generally available to the public prior to the time of disclosure by Discloser to Recipient; (b) becomes publicly known or generally available to the public after disclosure by Discloser to Recipient through no wrongful action or inaction of Recipient; (c) is in the rightful possession of Recipient without confidentiality obligations at the time of disclosure by Discloser to Recipient as shown by Recipient's then-contemporaneous written files and records kept in the ordinary course of business; (d) is obtained by Recipient from a third party without an accompanying duty of confidentiality and without (to Recipient's knowledge) a breach of such third party's obligations of confidentiality; or (e) is independently developed by Recipient without use of or reference to Discloser's Confidential Information. Notwithstanding anything to the contrary in this Agreement, except as expressly provided in Section 4.3 with respect to a Terminated Scaffold, the identity, structure and SAR information of: (i) the Hit Compounds will be deemed to be the Confidential Information of both Parties until the Selection Deadline, provided that, during such period, Anixa (itself or through one or more third party service providers on its behalf under a written agreement consistent with terms and conditions of this Agreement, including with respect to confidentiality and intellectual property) may perform biological assays and other analyses to evaluate the Hit Compounds solely for purposes of selecting Lead Scaffolds pursuant to Section 2.4; (ii) the Lead Scaffolds will be deemed to be Anixa's Confidential Information commencing upon the date of the Selection Notice; (iii) the Rejected Hit Compounds will be deemed to be OntoChem's Confidential Information commencing upon the date of the Selection Notice, subject to the last sentence of Section 2.4.
+
+5.2 Non-Use and Non-Disclosure. Neither Party will use any Confidential Information of the other Party for any purpose except as reasonably necessary to fulfill its obligations or exercise its rights under this Agreement. Neither Party will disclose any Confidential Information of the other Party nor permit any such Confidential Information to be disclosed, either directly or indirectly, to any third party or its personnel without the other Party's prior written consent, except as expressly permitted hereunder. Each Party may disclose Confidential Information of the other Party to its Representatives who are required to have the information in order for such Party to fulfill its obligations or exercise its rights under this Agreement, provided that such Representatives are subject to legally binding non-use and non-disclosure obligations consistent with this Agreement, prior to any disclosure of Confidential Information to such Representatives. If Recipient becomes legally compelled to disclose any Confidential Information of Discloser, Recipient will provide Discloser prompt written notice of such disclosure obligation, if legally permissible, and upon request will reasonably assist Discloser in seeking a protective order or other appropriate remedy. If Discloser waives Recipient's compliance with this Agreement or fails to obtain a protective order or other appropriate remedy, Recipient will furnish only that portion of the Confidential Information that is legally required to be disclosed, provided that any Confidential Information so disclosed will maintain its confidentiality protection for all purposes other than such legally compelled disclosure.
+
+6
+
+
+
+
+
+5.3 Maintenance of Confidentiality. Recipient will take commercially reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of Discloser. Without limiting the foregoing, Recipient will take at least those measures that it employs to protect its own confidential information of a similar nature. Recipient will promptly notify Discloser in writing of any unauthorized use or disclosure, or suspected unauthorized use or disclosure, of Discloser's Confidential Information of which Recipient becomes aware.
+
+5.4 Confidential Terms. Except as otherwise required by applicable law or regulation, neither Party will disclose the existence or terms of this Agreement to any third party without the prior written consent of the other Party, except that (a) each Party may disclose this Agreement or its terms to its advisors and to existing and potential investors, acquirers, lenders and, in the case of Anixa, licensees on a reasonable need-to-know basis under circumstances that reasonably ensure the confidentiality thereof, and (b) Anixa may issue press releases, make investor and other public presentations and post content on its website from time to time regarding the existence and terms of this Agreement and progress regarding the development, manufacture and commercialization of Lead Scaffolds (including the identity of any permitted subcontractors under this Agreement), to the extent deemed appropriate for purposes of investor relations in its capacity as a publicly traded company and compliance with securities laws and regulations.
+
+5.5 Equitable Relief. Recipient agrees that any violation or threatened violation of this Article 5 may cause irreparable injury to Discloser, entitling Discloser to seek to obtain injunctive relief in addition to all legal remedies without showing or proving any actual damage and without any bond required to be posted.
+
+5.6 Return of Confidential Information. Upon expiration or termination of this Agreement, or upon written request, each Party will promptly return to the other Party, or upon written request of such other Party destroy, all materials containing such other Party's Confidential Information, provided, however, that the Recipient may retain in confidence (a) one archival copy of the Confidential Information of the Discloser in its legal files solely to permit the Recipient to determine compliance with this Agreement and (b) any portion of the Confidential Information of the Discloser which the Recipient is required by applicable law or regulation to retain. Notwithstanding the return or destruction of the materials described above, the Parties will continue to be subject to the terms of this Section 5.
+
+6. Intellectual Property.
+
+6.1 Background Intellectual Property. All inventions, know-how, data, discoveries and proprietary information, including all intellectual property rights in the foregoing, owned or controlled by a Party as of immediately prior to the Effective Date are and will remain the sole property of such Party.
+
+6.2 Inventions Owned by OntoChem. OntoChem will own, and Anixa hereby assigns to OntoChem, all right, title and interest in and to all Inventions directed to (a) any methods of generating or screening compound libraries and (b) the Rejected Hit Compounds (including the composition, use or manufacture thereof), in the case of this clause (b), effective as of the Selection Deadline (collectively (clauses (a) and (b)), "OntoChem Inventions"). As between the Parties, OntoChem will exclusively control the filing, prosecution, maintenance and enforcement of any patents and patent applications claiming OntoChem Inventions.
+
+7
+
+
+
+
+
+6.3 Inventions Owned by Anixa. Anixa will own, and OntoChem hereby assigns to Anixa, all right, title and interest in and to all Inventions other than OntoChem Inventions, including, for clarity, Inventions directed to the Lead Scaffold(s) (including the composition, use or manufacture thereof) (collectively, "Anixa Inventions"). As between the Parties, Anixa will exclusively control the filing, prosecution, maintenance and enforcement of any patents and patent applications claiming Anixa Inventions.
+
+6.4 License Grant. OntoChem hereby grants to Anixa a non-exclusive, fully paid-up, royalty-free, perpetual, irrevocable, transferable, worldwide license (with the right to grant and authorize sublicenses through multiple tiers) under any patents which OntoChem or any of its Affiliates own or control during the term of this Agreement, to make, have made, use, sell, offer for sale and import the Lead Scaffold(s) and products that incorporate compounds from the Lead Scaffold(s). OntoChem will not incorporate any invention, discovery or other proprietary information owned by any third party into any Anixa Inventions or Deliverables without Anixa's prior written consent.
+
+6.5 Invention Disclosure and Implementation. Each Party will notify the other Party promptly in writing of each Invention made or generated by such Party. The determination of inventorship with respect to all Inventions will be made in accordance with United States patent law. Each Party will assign, and does hereby assign, to the other Party rights with respect to the applicable Inventions as necessary to achieve ownership as provided in Sections 6.2 and 6.3. Each assigning Party will execute and deliver all documents and instruments reasonably requested by the other Party to evidence or record such assignment or to file for, perfect or enforce the assigned rights. Each assigning Party will make its relevant Representatives (and their assignments and signatures on such documents and instruments) reasonably available to the other Party for assistance in accordance with this Section 6.5 at no charge. However, out of pocket expenses such as travel or communication costs shall be reimbursed. Each Party will have the sole right to file and prosecute patent applications claiming any Inventions of which such Party is the sole owner pursuant to this Agreement without the consent of the other Party, and such other Party will provide, and will cause its Representatives to provide, reasonable cooperation and assistance with such filing and prosecution upon request. To the extent OntoChem is obligated by reason of mandatory provisions of the Gesetz über Arbeitnehmererfindungen (ArbNErfG) (German law covering employee inventions) to make payments to its employees, OntoChem will be solely responsible, and indemnify Anixa, for any and all such payments to OntoChem's employees.
+
+6.6 No Implied Rights. Except as otherwise expressly provided herein, nothing in this Agreement is intended to grant to either Party any rights under any intellectual property right of the other Party.
+
+7. Representations and Warranties.
+
+7.1 Mutual Representations and Warranties. Each Party hereby represents and warrants to the other Party that: (a) it is duly organized, validly existing, and in good standing under the laws and regulations of the jurisdiction in which it is organized; (b) it has the requisite power and authority and the legal right to enter into this Agreement and to perform its obligations hereunder; (c) it has taken all requisite action on its part to authorize the execution and delivery of this Agreement and the performance of its obligations hereunder; (d) this Agreement has been duly executed and delivered by such Party and constitutes a legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms; and (e) the execution, delivery and performance of this Agreement by it do not conflict with any agreement, instrument or understanding, oral or written, to which it is a party, or to which it is bound, and it will not enter into any agreement, instrument or understanding, oral or written, that conflicts with the rights and obligations of this Agreement during the term of this Agreement.
+
+8
+
+
+
+
+
+7.2 Additional Representations and Warranties of OntoChem. OntoChem hereby further represents and warrants to Anixa that: (a) to OntoChem's knowledge, OntoChem's performance of its activities under the Research Plan does not infringe or constitute misappropriation of the intellectual property rights of any third party; (b) no licenses, permissions or releases from any third party are necessary for OntoChem's performance of its activities under the Research Plan; (c) OntoChem has obtained rights to use any third-party compound libraries and software referenced in the Research Plan under terms and conditions consistent with this Agreement; and (d) OntoChem's performance of its activities under the Research Plan will not result in any third party acquiring any right, title or interest in or to any Anixa Invention or Deliverable.
+
+7.3 Mutual Covenants. Each Party hereby covenants that: (a) all Representatives of such Party who participate in the performance of the activities contemplated by this Agreement will be subject to written obligations regarding the treatment of Confidential Information and the assignment of Inventions that are consistent with such Party's obligations under this Agreement, as of the commencement of such activities by such Representatives; and (b) such Party will comply with applicable laws and regulations in connection its performance of this Agreement.
+
+8. Indemnification and Insurance.
+
+8.1 Indemnification by Anixa. Anixa will indemnify, defend and hold harmless OntoChem, its Affiliates and their respective Representatives from and against any liability, demand, damage, cost or expense (including reasonable attorney's fees) arising from any third-party claim, action or proceeding arising from (a) Anixa's breach of this Agreement or (b) Anixa's negligence or willful misconduct in connection with this Agreement, except with respect to any matter for which OntoChem is obligated to provide indemnification under Section 8.2.
+
+8.2 Indemnification by OntoChem. OntoChem will indemnify, defend and hold harmless Anixa, its Affiliates and their respective Representatives from and against any liability, demand, damage, cost or expense (including reasonable attorney's fees) arising from any third-party claim, action or proceeding arising from (a) OntoChem's breach of this Agreement or (b) OntoChem's negligence or willful misconduct in connection with this Agreement, except with respect to any matter for which Anixa is obligated to provide indemnification under Section 8.1. Financial reimbursements claimed according to such indemnification shall not exceed payments received by OntoChem under this contract.
+
+8.3 Indemnification Procedure. A Party (the "Indemnitee") that intends to claim indemnification under this Section 8 will promptly notify the other Party (the "Indemnitor") in writing of any claim, action or proceeding in respect of which the Indemnitee intends to claim such indemnification (each a "Claim"), and the Indemnitor will have the right to control the defense and/or settlement of such Claim, provided that the Indemnitee will have the right to participate, at its own expense, with counsel of its own choosing in the defense and/or settlement of such Claim. The Indemnitor will not, without the prior written consent of the Indemnitee, enter into any settlement or agree to any disposition of the applicable Claim that imposes any conditions or obligations on the Indemnitee. The failure to deliver written notice to the Indemnitor within a reasonable period of time after the commencement of any such Claim will not relieve such Indemnitor of any liability to the Indemnitee under this Section 8 except to the extent such failure is prejudicial to the Indemnitor's ability to defend such Claim. The Indemnitee and its Representatives, at the Indemnitor's request and expense, will provide full information and reasonable assistance to the Indemnitor and its legal representatives with respect to the applicable Claim subject to indemnification. It is understood that only a Party may claim indemnification under this Section 8 (on its own behalf or on behalf of its Affiliates or their respective Representatives), and such Party's Affiliates and their respective Representatives may not directly claim indemnification hereunder.
+
+9
+
+
+
+
+
+8.4 Insurance. Each Party will maintain liability insurance, with reputable and financially secure insurance carriers, at levels consistent with industry standards based upon such Party's respective activities and indemnification obligations under this Agreement. Upon request, each Party will furnish to the other Party certificates issued by the applicable insurance company(ies) evidencing such insurance.
+
+9. Miscellaneous.
+
+9.1 Relationship of the Parties. The Parties are independent contractors and nothing contained in this Agreement will be construed to place them in the relationship of partners, principal and agent, employer/employee or joint venturer. Neither Party will have the power or right to bind or obligate the other Party, nor will either Party hold itself out as having such authority.
+
+9.2 Use of Name. Neither Party will use the name, logo or trademark of the other Party in any advertising, publicity or other promotional activities without such other Party's prior written consent, unless such use is reasonably necessary to comply with applicable laws or regulations and subject to clause (b) of Section 5.4.
+
+9.3 Notices. Any notice required or permitted to be given under this Agreement by either Party will be in writing (in English) and will be delivered to the applicable Party at its respective address set forth below by personal delivery, e-mail, reputable international courier or registered or certified mail. Notices will be deemed given on the date received if delivered personally, on the next business day if sent by e-mail or international courier, or five (5) days after the date postmarked if sent by registered or certified mail, return receipt requested, postage prepaid.
+
+If to OntoChem: OntoChem GmbH Blücherstr. 24, D-06120 Halle (Saale) Germany Attention: Chief Executive Officer E-mail: [email protected]
+
+If to Anixa: Anixa Biosciences, Inc. 3150 Almaden Expressway, Suite 250 San Jose, CA 95118 U.S.A. Attention: Chief Executive Officer E-mail: [email protected] 10
+
+
+
+
+
+9.4 Governing Law. This Agreement and the rights and obligations of the Parties hereunder will be governed by the laws of the State of Delaware without regard to the conflict of laws provisions of any jurisdiction. The Parties agree that the 1980 United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
+
+9.5 Arbitration. The Parties agree that any dispute arising out of, or in connection with, this Agreement, which cannot be amicably resolved between the Parties, will be finally settled by binding arbitration under the then current rules of the International Chamber of Commerce ("ICC") by one (1) arbitrator appointed in accordance with ICC rules. Any such arbitration will be conducted in English in the State of Delaware. The arbitrator may grant injunctive or other relief in such dispute or controversy. The decision of the arbitrator will be final, conclusive and binding on the Parties. Judgment may be entered on the arbitrator's decision in any court of competent jurisdiction. The costs of the arbitration, including administrative and arbitrator's fees, will be shared equally by the Parties. Each Party will bear the cost of its own attorneys' fees and expert witness fees. Notwithstanding anything to the contrary in this Agreement, a Party may seek a temporary restraining order or a preliminary injunction from any court of competent jurisdiction in order to prevent immediate and irreparable injury, loss or damage on a provisional basis, pending the selection of the arbitrator or pending the arbitrator's determination of the merits of any dispute pursuant to this Section 9.5.
+
+9.6 Severability. If any one or more provisions of this Agreement will be found to be invalid or unenforceable in any respect, the Parties will negotiate in good faith a valid and enforceable substitute provision that most nearly reflects the original intent of the Parties, and the validity and enforceability of the remaining provisions of this Agreement will not in any way be affected or impaired thereby.
+
+9.7 Amendment; Waiver. This Agreement may be amended or modified, and any of the terms of this Agreement 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. The delay or failure of either Party at any time or times to require performance of any provision will in no manner affect its rights at a later time to enforce the same. No waiver by either Party of any condition or of the breach of any term contained in this Agreement, in any one or more instances, will 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.
+
+9.8 Assignment. Neither Party may assign or otherwise transfer this Agreement (or any of its rights or obligations hereunder) without the prior written consent of the other Party, except that either Party may assign this Agreement without such consent to an entity that acquires all or substantially all of the business or assets of such Party to which this Agreement relates, whether by merger, consolidation, sale of assets or otherwise. Any assignment or transfer of this Agreement in violation of this Section 9.8 will be null and void. This Agreement will bind and inure to the benefit of the Parties and their respective successors and permitted assigns.
+
+9.9 Entire Agreement. This Agreement represents the complete and entire understanding between the Parties regarding the subject matter hereof and supersedes all prior negotiations, representations or agreements, either written or oral, regarding such subject matter.
+
+9.10 Counterparts. The Parties may execute this Agreement in multiple counterparts, all of which together will constitute one instrument. Signatures to this Agreement delivered by facsimile or other electronic transmission (e.g., portable document format (PDF)) will be deemed to be binding as original signatures.
+
+(The remainder of this page is intentionally left blank. The signature page follows.)
+
+
+
+
+
+11
+
+
+
+
+
+IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.
+
+
+
+
+
+ANIXA BIOSCIENCES, INC. ONTOCHEM GMBH
+
+By: /s/ Amit Kumar By: /s/ Lutz Weber Amit Kumar, Ph.D. Name: Dr. Lutz Weber President and Chief Executive Officer Title: CEO 12
+
+
+
+
+
+Exhibit A: Research Plan
+
+***
+
+13

full_contract_txt/ARMSTRONGFLOORING,INC_01_07_2019-EX-10.2-INTELLECTUAL PROPERTY AGREEMENT.txt

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+Exhibit 10.2
+
+Execution Version
+
+INTELLECTUAL PROPERTY AGREEMENT
+
+This INTELLECTUAL PROPERTY AGREEMENT (this "Agreement"), dated as of December 31, 2018 (the "Effective Date") is entered into by and between Armstrong Flooring, Inc., a Delaware corporation ("Seller") and AFI Licensing LLC, a Delaware limited liability company ("Licensing" and together with Seller, "Arizona") and AHF Holding, Inc. (formerly known as Tarzan HoldCo, Inc.), a Delaware corporation ("Buyer") and Armstrong Hardwood Flooring Company, a Tennessee corporation (the "Company" and together with Buyer the "Buyer Entities") (each of Arizona on the one hand and the Buyer Entities on the other hand, a "Party" and collectively, the "Parties").
+
+WHEREAS, Seller and Buyer have entered into that certain Stock Purchase Agreement, dated November 14, 2018 (the "Stock Purchase Agreement"); WHEREAS, pursuant to the Stock Purchase Agreement, Seller has agreed to sell and transfer, and Buyer has agreed to purchase and acquire, all of Seller's right, title and interest in and to Armstrong Wood Products, Inc., a Delaware corporation ("AWP") and its Subsidiaries, the Company and HomerWood Hardwood Flooring Company, a Delaware corporation ("HHFC," and together with the Company, the "Company Subsidiaries" and together with AWP, the "Company Entities" and each a "Company Entity") by way of a purchase by Buyer and sale by Seller of the Shares, all upon the terms and condition set forth therein;
+
+WHEREAS, Arizona owns certain Copyrights, Know-How, Patents and Trademarks which may be used in the Company Field, and in connection with the transactions contemplated by the Stock Purchase Agreement the Company desires to acquire all of Arizona's right, title and interest in and to such Intellectual Property used exclusively in the Company Field, and obtain a license from Arizona to use other such Intellectual Property on the terms and subject to the conditions set forth herein;
+
+WHEREAS, Seller is signatory to the Trademark License Agreement pursuant to which Seller obtains a license to the Arizona Licensed Trademarks;
+
+WHEREAS, the Company desires to obtain a sublicense to use the Arizona Licensed Trademarks in the Company Field;
+
+WHEREAS, Arizona has obtained consent from all counterparties to the Trademark License Agreement to grant to the Company the sublicenses to the Arizona Licensed Trademarks included in this Agreement; and
+
+WHEREAS, the Company Entities own certain Copyrights and Know-How which may be used in the Arizona Field, and in connection with the transactions contemplated by the Stock Purchase Agreement, Arizona desires to obtain a license from the Company Entities to use such Intellectual Property on the terms and subject to the conditions set forth herein.
+
+NOW, THEREFORE, in consideration of the foregoing and the mutual agreements, provisions and covenants contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
+
+
+
+
+
+1. DEFINITIONS AND INTERPRETATION 1.1 Certain Definitions. As used herein, capitalized terms have the meaning ascribed to them herein, including the following terms have the meanings set forth below. Capitalized terms that are not defined in this Agreement shall have the meaning set forth in the Stock Purchase Agreement. (a) "Arizona Assigned Copyrights" means all Copyrights, whether registered or unregistered, owned by Licensing or Seller as of the Effective Date and used or held for use exclusively in the Company Field as of November 14, 2018 (the "SPA Signing Date") and/or as of the Effective Date. (b) "Arizona Assigned Internet Domain Names" means the Internet domain names set forth on Schedule 1.1(b) and all other Internet domain names owned by Licensing or Seller as of the Effective Date and used or held for use exclusively in the Company Field as of the SPA Signing Date and/or as of the Effective Date (other than any Internet domain names that include any Arizona Licensed Trademarks). (c) "Arizona Assigned IP" means the Arizona Assigned Copyrights, Arizona Assigned Internet Domain Names, Arizona Assigned Know- How, Arizona Assigned Patents and Arizona Assigned Trademarks. (d) "Arizona Assigned Know-How" means all Know-How owned by Licensing or Seller as of the Effective Date and used or held for use exclusively in the Company Field as of the SPA Signing Date and/or as of the Effective Date. (e) "Arizona Assigned Patents" means the Patents set forth on Schedule 1.1(e) and all other Patents owned by Licensing or Seller and used or held for use exclusively in the Company Field as of the SPA Signing Date and/or as of the Effective Date. (f) "Arizona Assigned Trademarks" means the Trademarks set forth on Schedule 1.1(f) and all other Trademarks owned by Licensing or Seller as of the Effective Date and used or held for use exclusively in the in the Company Field as of the SPA Signing Date and/or as of the Effective Date (other than, for clarity any Arizona Licensed Trademarks). (g) "Arizona Domain Names" means the Internet domain names set forth on Schedule 1.1(g). (h) "Arizona Field" means all activities conducted by Arizona or its Affiliates, other than the Company Field. (i) "Arizona Licensed Copyrights" means all Copyrights owned by Licensing or Seller or their respective Affiliates, as of the Effective Date and used or held for use in the Company Field during the five (5) years prior to the Effective Date (other than the Arizona Assigned Copyrights). 2
+
+
+
+
+
+(j) "Arizona Licensed IP" means the Arizona Licensed Copyrights, the Arizona Licensed Know-How, the Arizona Licensed Patents, the Arizona Licensed Trademarks, the Diamond Licensed Trademarks and the Phase-Out Marks. (k) "Arizona Licensed Know-How" means all Know-How owned by Licensing or Seller or their respective Affiliates, as of the Effective Date and used or held for use in the Company Field during the five (5) years prior to the Effective Date (other than the Arizona Assigned Know- How). (l) "Arizona Licensed Patents" means the Patents set forth on Schedule 1.1(l) and all other Patents owned by Licensing or Seller or their respective Affiliates as of the Effective Date and used or held for use in the Company Field during the five (5) years prior to the Effective Date (other than the Arizona Assigned Patents). (m) "Arizona Licensed Trademarks" means the Trademarks set forth on Schedule 1.1(m). (n) "Arizona Trademark License Term" means the period commencing on the Effective Date and ending twenty-four (24) months thereafter. (o) "Company Field" means the design, development, manufacture, marketing, promotion, advertising, sourcing, distribution and sale of solid hardwood and engineered wood flooring products by or for any Company Entity. (p) "Company Licensed Copyrights" means all Copyrights and registrations and applications for any of the foregoing owned by any Company Entity as of the Effective Date and used or held for use in the Arizona Field as of the Effective Date. (q) "Company Licensed IP" means the Company Licensed Copyrights, the Company Licensed Know-How and the Company Licensed Patents. (r) "Company Licensed Know-How" means all Know-How owned by any Company Entity as of the Effective Date and used or held for use in the Arizona Field as of the Effective Date. (s) "Company Licensed Patents" means the Patents set forth on Schedule 1.1(s). (t) "Copyrights" means copyrights (whether registered or unregistered) including applications for copyright (excluding, for clarity, Trademarks). (u) "Diamond Licensed Trademarks" means the Trademarks set forth on Schedule 1.1(u). (v) "Diamond Product" means the design, development, manufacture, marketing, promotion, advertising, sourcing, distribution and sale of the solid hardwood flooring product by any Company Entity as conducted under the Diamond Licensed Trademarks by any Company Entity prior to the Effective Date 3
+
+
+
+
+
+(including the composition of coating used with respect to such solid hardwood flooring product). (w) "Diamond Trademark License Term" means the period commencing on the Effective Date and ending eighteen (18) months thereafter. (x) "Know-How" means trade secrets, and other confidential and proprietary information, inventions, processes, formulas and methodologies. (y) "Licensed IP" means the Arizona Licensed IP and the Company Licensed IP. (z) "Licensed Copyrights" means the Arizona Licensed Copyrights and the Company Licensed Copyrights. (aa) "Licensed Know-How" means the Arizona Licensed Know-How and the Company Licensed Know-How. (bb) "Licensed Trademarks" means the Arizona Licensed Trademarks, the Diamond Licensed Trademarks and the Phase-Out Marks. (cc) "Patents" means patent rights, including patents, patent applications, and all related continuations, continuations-in-part, divisionals, renewals, reissues, re-examinations, substitutions, and extensions thereof, and applications for any of the foregoing. (dd) "Proceeding" means any proceeding, claim, suit or action arising out of, or in connection with, this Agreement or its subject matter (including its validity, formation at issue, effect, interpretation, performance or termination), howsoever arising. (ee) "Seller Licensed Trademarks" means the Arizona Licensed Trademarks and the Diamond Licensed Trademarks. (ff) "Third Party" means any Person other than Arizona, the Company, and their respective Affiliates. (gg) "Trademarks" means any trademarks, service marks, trade names, trade dress, and other similar designations of source or origin, and registrations and applications for any of the foregoing. (hh) "Trademark License Agreement" means the Trademark License Agreement by and between Armstrong World Industries, Inc., AWI Licensing LLC and Armstrong Flooring, Inc, dated as of April 1, 2016 and attached hereto as Exhibit A. 4
+
+
+
+
+
+1.2 Interpretation. Section 10.5 and 10.14 of the Stock Purchase Agreement shall apply hereto, mutatis mutandis. 1.3 Company Actions. In respect of any action herein required to be undertaken by any of the Company Entities, or to be omitted by any of the Company Entities, the Buyer Entities shall cause the applicable Company Entity to so undertake or omit to undertake, as applicable, such action. 2. ASSIGNMENT OF ARIZONA ASSIGNED IP 2.1 Assignment. Arizona agrees to assign and hereby assigns its entire right, title and interest in and to the Arizona Assigned IP to the Company. 2.2 Recordation of Assignment. Arizona will reasonably cooperate with the Company to obtain, record, and perfect title to, and provide all necessary evidence of the Company's ownership of, the Arizona Assigned IP, including the execution of (i) a Patent Assignment in the form of the attached Exhibit B, and (ii) a Trademark Assignment in the form of the attached Exhibit C. 3. GRANT OF COPYRIGHT LICENSE 3.1 Arizona Copyright Grant. Subject to the terms and conditions of this Agreement, Arizona hereby grants to the Company a perpetual, non- exclusive, royalty-free license in, to and under the Arizona Licensed Copyrights for use in the Company Field throughout the world. 3.2 Company Copyright Grant. Subject to the terms and conditions of this Agreement, the Company hereby grants to Seller a perpetual, non- exclusive, royalty-free license in, to and under the Company Licensed Copyrights for use in the Arizona Field throughout the world. 4. GRANT OF KNOW-HOW LICENSE 4.1 Arizona Know-How Grant. Subject to the terms and conditions of this Agreement, Arizona hereby grants to the Company a perpetual, non- exclusive, royalty-free license in, to and under the Arizona Licensed Know-How for use in the Company Field throughout the world. 4.2 Company Know-How Grant. Subject to the terms and conditions of this Agreement, the Company hereby grants to Seller a perpetual, non- exclusive, royalty-free license in, to and under the Company Licensed Know-How for use in the Arizona Field throughout the world. 5. GRANT OF PATENT LICENSE 5.1 Arizona Patent Grant. Subject to the terms and conditions of this Agreement, Arizona hereby grants to the Company a perpetual, non-exclusive, royalty-free license in, to and under the Arizona Licensed Patents for use in the Company Field throughout the world. 5
+
+
+
+
+
+5.2 Company Patent Grant. Subject to the terms and conditions of this Agreement, the Company hereby grants to Seller a perpetual, non-exclusive, royalty-free license in, to and under the Company Licensed Patents for use in the Arizona Field throughout the world. 6. GRANT OF TRADEMARK LICENSE 6.1 Arizona Licensed Trademark Grant. Subject to the terms and conditions of this Agreement, Arizona hereby grants to the Company a limited, non- exclusive, royalty-free, non-sublicensable (except as set forth in Section 7.1), non-assignable license in, to and under the Arizona Licensed Trademarks for the Arizona Trademark License Term for use in the Company Field throughout the world only in the form and manner that such Arizona Licensed Trademarks are used in the Business as of the Closing, provided that the Company shall use commercially reasonable efforts to present the Arizona Licensed Trademarks in the form set forth on Schedule 6.1. 6.2 Diamond Licensed Trademark Grant. Subject to the terms and conditions of this Agreement, Arizona hereby grants to the Company a limited, non- exclusive, royalty-free, non-sublicensable (except as set forth in Section 7.1), non-assignable (except as set forth in Section 13.2) license in, to and under the Diamond Licensed Trademarks for the Diamond Trademark License Term for use with respect to the Diamond Product throughout the world only in the form and manner set forth on Schedule 6.2. 6.3 Quality Control. The Buyer Entities acknowledge the importance of Arizona's exercise of quality control over the use of the Seller Licensed Trademarks to preserve the continued integrity and validity of the Seller Licensed Trademarks and to protect the value and goodwill associated with the Seller Licensed Trademarks, and accordingly: (a) The Company shall ensure that all goods and services provided by the Company, under or in association with any of the Seller Licensed Trademarks, shall (i) be substantially the same as or greater than the quality of goods and services provided under such Seller Licensed Trademarks immediately prior to the Effective Date and (ii) not be associated with any goods or services, including any activities, that are reasonably likely to have an adverse effect on (A) the image or reputation of any of the Seller Licensed Trademarks or (B) Seller's right, title or interest in and to, any of the Arizona Licensed Trademarks. (b) The Company shall not tarnish or bring into disrepute the reputation of or goodwill associated with the Seller Licensed Trademarks or Arizona. (c) The Company shall use the Seller Licensed Trademarks at all times in compliance with all applicable Laws. (d) The Company shall include trademark and other notices in connection with the use of the Seller Licensed Trademarks as reasonably requested by Arizona from time to time. 6
+
+
+
+
+
+(e) The Company shall upon Arizona's reasonable request from time to time, supply to Arizona representative samples and/or written descriptions, as appropriate, of uses made by the Company of the Seller Licensed Trademarks. (f) The Buyer Entities acknowledge that this license grant does not include, and the Company shall receive no rights under this Agreement or the Stock Purchase Agreement, to use any Trademark that is confusingly similar to or derivative of a Seller Licensed Trademark (other than the Seller Licensed Trademarks themselves as expressly authorized hereunder). 6.4 Trademark License Agreement. In addition to the obligations set forth in Section 6.3, and notwithstanding any other provision of this Agreement, the Company shall comply with all obligations applicable to Arizona and its Affiliates under the Trademark License Agreement including, for the avoidance of doubt, any obligations with respect to reporting Complaints (as defined in the Trademark License Agreement), which reports the Company shall provide to Arizona, and quality control and standards, and Licensor Competitors (as defined in the Trademark License Agreement), and neither Party shall undertake any act that would constitute a breach or a basis for termination under the Trademark License Agreement. 6.5 Trade Names. The Company shall not create or use any corporate or trade names that include the Arizona Licensed Trademarks, other than those in existence immediately prior to the Effective Date. No later than thirty (30) days following the Closing, each of AWP and the Company shall change its respective corporate name and trade name and cause its organizational documents to be amended to remove any reference to "Armstrong." 6.6 With respect to any Trademarks notified to the Company in writing after the Effective Date that are used as of the Effective Date in the Company Field and are not (i) owned by any Company Entity, (ii) Arizona Assigned Trademarks, or (iii) Seller Licensed Trademarks (the "Phase-Out Marks") in each case (i)-(iii) the Company shall have a period of twenty-four (24) months from the date of notification to phase out all use. Any use by the Company of any of the Phase-Out Marks as permitted in this Section 6.6, is subject to its use of the Phase-Out Marks in a form and manner and with standards of quality consistent with that in effect for the Phase-Out Marks as of the Effective Date. 6.7 Domain Names. Subject to the terms and conditions of this Agreement, the license set forth in Section 6.1 shall include the right of the Company to use the Arizona Domain Names solely in connection with the applicable Arizona Licensed Trademarks in the Company Field during the Arizona Trademark License Term, in the ordinary course of business in a manner generally consistent with the past practice of Arizona in the Company Field. The Company shall not have the right to register any domain name or social media addresses (or any similar or successor identifiers) containing Arizona Licensed Trademarks. 7
+
+
+
+
+
+7. INTELLECTUAL PROPERTY RIGHTS 7.1 Sublicenses. Arizona may sublicense the licenses granted herein to its Affiliates and Third Parties in the ordinary course of business in support of its and its Affiliates' business, but not for the independent use of Third Parties, and the Company may sublicense the licenses granted herein to Third Parties, its Subsidiaries, AWP, controlled Affiliates, or any holding company that is a direct or indirect parent of the Company in the ordinary course of business in support of its and its Subsidiaries' or controlled Affiliates' business, but not for the independent use of Third Parties (each such Affiliate, Third Party, AWP or Subsidiary, a "Sublicensee"). Each Party shall ensure that any sublicense that it grants to a Sublicensee does not conflict with this Agreement. For clarity, granting a sublicense shall not relieve the Parties of any obligations hereunder and each Party shall cause each of its Sublicensees to comply, and shall remain responsible for such Sublicensees' compliance, with all terms and conditions hereof applicable to the Parties. At the request of a licensing Party, the other Party shall provide to the licensing Party a list of all Sublicensees and otherwise reasonably cooperate with the licensing Party in connection with Sublicensees' compliance with this Agreement. 7.2 Reservation of Rights. Except as expressly provided in the Stock Purchase Agreement or herein, each Party reserves its and its Affiliates' rights in and to all Intellectual Property (including with respect to the use, registration and licensing thereof). 8. OWNERSHIP 8.1 Ownership of Arizona Licensed IP. The Buyer Entities acknowledge and agree that (a) Arizona and its Affiliates own the Arizona Licensed IP (other than the Arizona Licensed Trademarks), (b) AWI Licensing LLC owns the Arizona Licensed Trademarks, (b) neither the Company, nor its Affiliates or its Sublicensees, will acquire any ownership rights in the Arizona Licensed IP, and (c) the Company shall not represent or make any claim that it has an ownership interest in any Arizona Licensed IP. Without limitation to the foregoing, the Company shall not file applications to register any Arizona Licensed IP or assist any person in doing the same, or contest, challenge, or otherwise take any action adverse to Arizona's and its Affiliates' ownership of or rights in and to the Arizona Licensed IP, or assist any person in doing the same. 8.2 Ownership of Company Licensed IP. Arizona acknowledges and agrees that (a) the Company and its Affiliates own the Company Licensed IP, (b) neither Arizona, nor its Affiliates or its Sublicensees, will acquire any ownership rights in the Company Licensed IP, and (c) Arizona shall not represent or make any claim that it has an ownership interest in any Company Licensed IP. Without limitation to the foregoing, Arizona shall not file applications to register any Company Licensed IP or assist any person in doing the same, or contest, challenge, or otherwise take any action adverse to the Company's and its Affiliates' ownership of or rights in and to the Company Licensed IP, or assist any person in doing the same. 8
+
+
+
+
+
+9. PROSECUTION, MAINTENANCE AND ENFORCEMENT 9.1 Responsibility and Cooperation. As between the Parties, Arizona, with respect to the Arizona Licensed IP, and the Buyer Entities, with respect to the Company Licensed IP, shall have the right (but not the obligation) for filing, prosecuting, and maintaining all Arizona Licensed IP and Company Licensed IP, respectively, in the licensing Party's name. For the avoidance of doubt, in case either such Party files any new Intellectual Property registration to the extent covering the Licensed IP, such new Intellectual Property registration shall automatically become Licensed IP. However, and for the further avoidance of doubt, the aforementioned shall not apply to new Intellectual Property created by a licensee Party or its Sublicensees separately and independently from the Licensed IP, for example in case of separate and independent technical enhancements or advancements. The Parties shall reasonably consult and coordinate with each other at the other Party's request with respect to the matters set forth in this Section 9.1. 9.2 No Additional Obligations. This Agreement shall not obligate either Party to disclose to the other Party, or maintain, register, prosecute, pay for, enforce, or otherwise manage any Intellectual Property except as expressly set forth herein. 9.3 Enforcement. As between the Parties, Arizona, with respect to the Arizona Licensed IP, and the Company or Buyer, with respect to the Company Licensed IP, shall have the right (but not the obligation) to elect to bring a Proceeding or enter into settlement discussions regarding, or otherwise seek to resolve, any infringement, misappropriation, or other violation, or allegations of invalidity or unenforceability, of the Licensed IP. In the event that Arizona declines to institute any Proceedings against third-party infringers or violators of any Arizona Licensed Patents, regarding activities that would fall within the Company Field if conducted by the Company, within forty-five (45) days after being notified or becoming aware of such infringing conduct, the Company or Buyer shall have the right to institute any Proceedings against such third-party infringers or violators. In the event that the Company or Buyer elects to institute such Proceedings, Arizona will reasonably cooperate with the Company or Buyer in such Proceedings, and the Company or Buyer shall reimburse Arizona for all reasonable costs and fees incurred by Arizona as a result of such cooperation. Such cooperation by Arizona will include joining such Proceeding as a party, if deemed necessary by the Company or Buyer. In the event that Arizona elects to bring a Proceeding against any alleged infringer of the Arizona Licensed Trademarks and seeks the cooperation of the Licensor of the Trademark License Agreement in such Proceeding, Arizona will take reasonable steps to assist the Company or Buyer in requesting the cooperation of the Licensor of the Trademark License Agreement, and pursuing an infringement claim against such alleged infringer. The Company or Buyer, as applicable, shall retain all benefits, recoveries, injunctions or other value derived from such Proceedings instituted by such Party. 10. INDEMNIFICATION 10.1 Indemnification. Each Party (the "Indemnifying Party") agrees to indemnify, defend and hold harmless the other Party and its Affiliates and their respective employees, 9
+
+
+
+
+
+directors, officers, agents and successors (collectively, the "Indemnified Parties") from and against any and all losses (including all costs, liabilities (including present and future damages), claims and expenses) incurred or suffered by any of the Indemnified Parties, to the extent arising out of, relating to or resulting from (a) a breach by the Indemnifying Party of this Agreement; or (b) any gross negligence or willful misconduct of the Indemnifying Party in connection with this Agreement. 11. DISCLAIMERS 11.1 Disclaimer. Each Party hereby acknowledges that, except to the extent expressly set forth in this Agreement, the Stock Purchase Agreement, the Transition Services Agreement or the Confidentiality Agreement, neither Party nor any of its Affiliates has made any representation or warranty, expressed or implied, including any representation or warranty regarding the validity, enforceability, or scope of the Licensed IP, noninfringement, merchantability or fitness for a particular purpose. 12. TERM 12.1 Term and Termination. (a) Unless earlier terminated pursuant to the provisions hereof, the term of this Agreement and the licenses and other grants of rights (and related obligations) under this Agreement shall (i) with respect to the Arizona Licensed Trademarks, be for the Arizona Trademark License Term, (ii) with respect to the Diamond Licensed Trademarks, be for the Diamond Trademark License Term, (iii) with respect to the Phase- Out Marks, be for the term set forth in Section 6.6, and (iv) with respect to Copyrights, Know-How and Patents, be in perpetuity. (b) Either Party may terminate this Agreement if the other Party materially breaches this Agreement and fails to remedy such breach within thirty (30) days' written notice thereof; provided, however, that if the material breach of this Agreement by the breaching Party is limited to the Licensed Copyrights, Licensed Know-How, the Arizona Licensed Patents, or the Licensed Trademarks, the non-breaching Party shall be entitled to termination solely with respect to the affected part of the license (i.e., in such case, the non-breaching Party may terminate this Agreement with respect to the Licensed Copyrights or the Licensed Know-How or the Arizona Licensed Patents or the Licensed Trademarks, as applicable). 12.2 Effect of Termination. (a) Effect of Termination. Upon termination of this Agreement, each licensee Party shall and shall cause all of its Sublicensees to cease all use of the Licensed IP that is subject to such termination (excluding for clarity (a) any Arizona Licensed Patents, Licensed Copyrights or Licensed Trademarks that are expired, invalid or abandoned or (b) any Licensed Know-How that no longer constitutes confidential information). 10
+
+
+
+
+
+(b) Survival. The following provisions of this Agreement, together with all other provisions of this Agreement that expressly specify that they survive, shall survive expiration or termination of this Agreement, in part or in its entirety: Sections 8, 10, 11, 12.2(a) and 13. 13. MISCELLANEOUS 13.1 Entire Agreement. This Agreement (together with the Schedules attached hereto), the Stock Purchase Agreement, the Transition Services Agreement and the Confidentiality Agreement constitute the entire agreement of the Parties hereto and supersede all prior negotiations, correspondence, agreements and undertakings, both written and oral, between or among the Parties, or any of them, with respect to the subject matter hereof. It shall be expressly understood that the Stock Purchase Agreement shall govern the transactions contemplated thereby as a whole and that this Agreement shall not be construed as an amendment or variation of the Stock Purchase Agreement but rather shall be complemented by and interpreted in light of the Stock Purchase Agreement. In the event that any provision of this Agreement is inconsistent with, conflicts with or contradicts any term of the Stock Purchase Agreement, the terms of the Stock Purchase Agreement will prevail. 13.2 Assignment. Except as otherwise provided in this Agreement, including under Section 7.1, neither this Agreement nor any of the rights, interests or obligations of any Party under this Agreement shall be assigned, in whole or in part, by operation of law or otherwise, by either Party without the prior written consent of the other Party; provided, however, that (a) either Party may assign any of the foregoing in connection with the sale or other transfer of the applicable business or assets of such Party or its Affiliates to which this Agreement relates (except that neither of the Buyer Entities may assign any such rights, interests or obligations with respect to the Arizona Licensed Trademarks); (b) Arizona may assign any of the foregoing to one or more of its Affiliates and (c) the Company and Buyer may assign any of the foregoing to one or more of its Subsidiaries, controlled Affiliates, AWP, or any holding company that is a direct or indirect parent of the Company; provided that in each case (b) and (c), no assignment shall relieve the assigning Party of any of its obligations under this Agreement unless agreed to by the non-assigning Party. Any assignment or other disposition in violation of the preceding sentence shall be void. 13.3 Notices. All notices and other communications given or made pursuant hereto shall be in writing and shall be deemed to have been duly given (i) on the date delivered, if delivered personally, (ii) on the third (3rd) Business Day after being mailed by registered or certified mail (postage prepaid, return receipt requested), or (iii) on the next Business Day after being sent by reputable overnight courier (delivery prepaid), in each case, to the parties at the following addresses, or on the date sent and confirmed by electronic transmission or confirmatory return email to the telecopier number or email address specified below (or at such other address, telecopier number or email address for a Party as shall be specified by notice given in accordance with this Section 13.3):
+
+(a) If to Buyer: 11
+
+
+
+
+
+c/o American Industrial Partners 450 Lexington Avenue, 40th Floor Attention: General Counsel and Richard Hoffman Email: [email protected] [email protected]
+
+with a copy to:
+
+Baker Botts L.L.P. 1299 Pennsylvania Avenue, NW Washington, D.C. 20004 Attention: Terrance L. Bessey Brendan O. Dignan Email: [email protected] [email protected]
+
+(b) If to Arizona:
+
+Armstrong Flooring, Inc. 2500 Columbia Avenue, PO Box 3025 Lancaster, PA 17604 Attention: Christopher S. Parisi Email: [email protected]
+
+with a copy to:
+
+Skadden, Arps, Slate, Meagher & Flom LLP 4 Times Square New York, NY 10036 Attention: Eric L. Cochran Steven J. Daniels Email: [email protected] [email protected] 13.4 Specific Performance. Each Party hereto acknowledges that money damages would be both incalculable and an insufficient remedy for any breach of this Agreement by such Party and that any such breach would cause Arizona, on the one hand, and the Buyer Entities, on the other hand, irreparable harm. Accordingly, each Party hereto also agrees that, in the event of any breach or threatened breach of the provisions of this Agreement by such Party, Arizona, on the one hand, and the Buyer Entities, on the other hand, shall be entitled to equitable relief without the requirement of posting a bond or other security, including in the form of injunctions and orders for specific performance. Any and all remedies herein expressly conferred upon a Party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by law or equity upon such Party, and the exercise by a Party of any one remedy will not preclude the exercise of any other remedy. Arizona, on the one hand, and Buyer Entities, on the other hand, hereby agree not to raise any objections to the availability of the equitable remedy of specific 12
+
+
+
+
+
+performance to prevent or restrain breaches or threatened breaches of this Agreement by the Buyer Entities or Arizona, as applicable, and to specifically enforce the terms and provisions of this Agreement to prevent breaches or threatened breaches of, or to enforce compliance with, the covenants and obligations of the Buyer Entities or Arizona, as applicable, under this Agreement. 13.5 Governing Law; Jurisdiction; Waiver of Jury Trial. (a) This Agreement shall be governed by the laws of the State of Delaware, its rules of conflict of laws notwithstanding. Each Party hereby agrees and consents to be subject to the jurisdiction of the Court of Chancery of the State of Delaware in and for New Castle County, or if the Court of Chancery lacks jurisdiction over such dispute, in any state or federal court having jurisdiction over the matter situated in New Castle County, Delaware, in any Action seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereby. Each Party hereby irrevocably consents to the service of any and all process in any such Action by the delivery of such process to such Party at the address and in the manner provided in Section 13.3 hereof. Each of the Parties hereto irrevocably and unconditionally waives any objection to the laying of venue of any Proceeding arising out of this Agreement or the transactions contemplated hereby in the Court of Chancery of the State of Delaware in and for New Castle County, or if the Court of Chancery lacks jurisdiction over such dispute, in any state or federal court having jurisdiction over the matter situated in New Castle County, Delaware, and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such Proceeding brought in any such court has been brought in an inconvenient forum. (b) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE BREACH, TERMINATION OR VALIDITY OF THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 13.5(b). 13
+
+
+
+
+
+13.6 Severability. If any term or other provision of this Agreement, or any portion thereof, is invalid, illegal or incapable of being enforced by any rule of law or public policy, all other terms and provisions of this Agreement, or the remaining portion thereof, shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party. Upon such determination that any such term or other provision, or any portion thereof, is invalid, illegal or incapable of being enforced, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are consummated to the fullest extent possible. 13.7 Counterparts. This Agreement may be executed in any number of counterparts, including by means of email in portable document format (.pdf), each of which when executed shall be deemed to be an original copy of this Agreement and all of which taken together shall constitute one and the same agreement.
+
+[Remainder of page intentionally left blank] 14
+
+
+
+
+
+IN WITNESS WHEREOF, the Parties have duly executed this Agreement as of the date first written above. ARMSTRONG FLOORING, INC.
+
+By: /s/ Donald R. Maier Name: Donald R. Maier Title: President and Chief Executive Officer
+
+AFI LICENSING LLC
+
+By: /s/ Christina Geerlof Name: Christina Geerlof Title: President
+
+AHF HOLDING, INC. (formerly known as Tarzan Holdco, Inc.)
+
+By: /s/ Stanley Edme Name: Stanley Edme Title: Vice President
+
+ARMSTRONG HARDWOOD FLOORING COMPANY
+
+By: /s/ Jason Braeglemann Name: Jason Braegelmann Title: Vice President [Signature Page to IP Agreement]
+
+
+
+
+
+Schedule 1.1(b) - Arizona Assigned Internet Domain Names Domain Name Expiration date Owner amish-handscraped.com 13-Apr-2019 Armstrong Flooring, Inc. ("AFI") amishhandscraped.com 13-Apr-2019 AFI bruce.adult 28-Apr-2019 AFI bruce.biz 26-Mar-2019 AFI bruce.com 21-Jan-2019 AFI bruce.dpml.pub 29-Oct-2019 AFI bruce.dpmlblock 29-Oct-2019 AFI bruce.info 10-Aug-2019 AFI bruce.porn 28-Apr-2019 AFI bruce.xxx 01-Dec-2021 AFI brucebuilder.com 02-Mar-2019 AFI brucecontractor.com 02-Mar-2019 AFI brucedealer.com 02-Mar-2019 AFI brucedistributor.com 02-Mar-2019 AFI brucefloors.com 04-Aug-2019 AFI brucehardwoodfloors.com 11-Apr-2019 AFI brucehome.com 02-Mar-2019 AFI brucelaminate.com 30-Dec-2018 AFI bruceremodeler.com 02-Mar-2019 AFI bruceretailer.com 02-Mar-2019 AFI brucesucks.com 25-Oct-2018 AFI brucesucks.info 22-Sep-2019 AFI capellaflooringcompany.com 12-Nov-2018 AFI capellafloors.com 27-Oct-2018 AFI forestglenhardwood.com 13-Sep-2019 AFI handscraped-hardwood.com 13-Apr-2019 AFI handscrapedhardwoodflooring.com 13-Sep-2019 AFI handscrapedwoodfloor.com 05-Sep-2019 AFI handscrapehardwoodfloor.com 05-Sep-2019 AFI handscrapehardwoodflooring.com 05-Sep-2019 AFI handscrapehardwoodfloors.com 05-Sep-2019 AFI handscrapewoodfloor.com 05-Sep-2019 AFI handscrapewoodflooring.com 05-Sep-2019 AFI handscrapewoodfloors.com 05-Sep-2019 AFI hardwood-flooring.asia 26-Mar-2019 AFI hartco.biz 18-Nov-2018 AFI hartco.info 10-Aug-2019 AFI hartcodistributor.com 02-Mar-2019 AFI hartcoflooring.com 24-May-2019 AFI
+
+
+
+
+
+Domain Name Expiration date Owner hartcoflooringcompany.com 18-Jun-2019 AFI hartcohome.com 02-Mar-2019 AFI homerwood.com 14-Sep-2019 AFI lifetimeluxuryhardwood.com 14-Jun-2019 AFI lockandfold.com 20-Nov-2018 AFI luxuryhardwood.com 20-Dec-2018 AFI mybruce.com 25-Jul-2019 AFI mybruce.net 25-Jul-2019 AFI myhartco.com 25-Jul-2019 AFI myhartco.net 25-Jul-2019 AFI myrobbins.com 25-Jul-2019 AFI myrobbins.net 25-Jul-2019 AFI powerofparagon.com 15-Jun-2019 AFI premium-hardwood.com 13-Apr-2019 AFI robbins-home.com 02-Mar-2019 AFI robbins.biz 26-Mar-2019 AFI robbins.com 13-Sep-2019 AFI robbins.info 10-Aug-2019 AFI robbinsflooring.com 21-Nov-2018 AFI robbinsflooring.info 22-Sep-2019 AFI robbinsfloors.com 14-Sep-2019 AFI robbinsfloors.net 17-Apr-2019 AFI robbinshardwoodflooring.com 26-Sep-2019 AFI robbinshighperformance.com 18-Oct-2018 AFI smokedhardwood.com 30-Apr-2019 AFI smokedhardwoodfloor.com 30-Apr-2019 AFI smokedhardwoodflooring.com 30-Apr-2019 AFI smokedhardwoodfloors.com 30-Apr-2019 AFI softscrapedhardwoodfloor.com 05-Sep-2019 AFI softscrapedhardwoodflooring.com 05-Sep-2019 AFI softscrapedhardwoodfloors.com 05-Sep-2019 AFI softscrapedwoodfloor.com 05-Sep-2019 AFI softscrapedwoodflooring.com 05-Sep-2019 AFI softscrapedwoodfloors.com 05-Sep-2019 AFI softscrapehardwoodfloor.com 05-Sep-2019 AFI softscrapehardwoodflooring.com 05-Sep-2019 AFI softscrapehardwoodfloors.com 05-Sep-2019 AFI softscrapewoodfloor.com 05-Sep-2019 AFI softscrapewoodflooring.com 05-Sep-2019 AFI softscrapewoodfloors.com 05-Sep-2019 AFI
+
+
+
+
+
+Domain Name Expiration date Owner tmortan.com 07-Sep-2019 AFI tmorten.com 07-Sep-2019 AFI tmortin.com 07-Sep-2019 AFI tmorton-flooring.com 17-Mar-2019 AFI tmorton-floors.com 17-Mar-2019 AFI tmorton-hardwood-flooring.com 17-Mar-2019 AFI tmorton-hardwood-floors.com 17-Mar-2019 AFI tmorton-hardwood.com 17-Mar-2019 AFI tmorton-wood-flooring.com 17-Mar-2019 AFI tmorton-wood-floors.com 17-Mar-2019 AFI tmorton.asia 20-Mar-2019 AFI tmorton.com 17-Mar-2019 AFI tmorton.org 17-Mar-2019 AFI tmortonandco.com 17-Mar-2019 AFI tmortonco.com 17-Mar-2019 AFI wwwbruce.com 01-Mar-2019 AFI wwwhartco.com 17-Jan-2019 AFI wwwrobbins.com 17-Jan-2019 AFI
+
+
+
+
+
+Schedule 1.1(e) - Arizona Assigned Patents
+
+Country App. Status App. Number Filing Date Patent Number Issue Date US Granted 10/459,977 12-Jun-03 7381474 3-Jun-08 AU Granted 2004304906 22-Nov-04 2004304906 28-Oct-10 CN Granted 200480039516 22-Nov-04 ZL200480039516.1 2-Jan-13 DE Granted 6020040309575 22-Nov-04 1944158 11-Feb-17 EP Granted 8007063.4 22-Nov-04 1944158 5-Jan-11 FR Granted 8007063.4 22-Nov-04 1944158 5-Jan-11 GB Granted 8007063.4 22-Nov-04 1944158 5-Jan-11 US Granted 10/727,749 4-Dec-03 7,261,947 28-Aug-07 US Granted 11/901,361 17-Sep-07 8,287,971 16-Oct-12 US Granted 13/611,028 12-Sep-12 8,399,075 19-Mar-13 US Granted 12/825,448 29-Jun-10 8801505 12-Aug-14 US Granted 14/458,103 12-Aug-14 10,072,427 11-Sep-18 AU Granted 2014240948 28-Mar-14 2014240948 20-Oct-16 EP Published 14722915.7 28-Mar-14 AU Granted 2013246000 10-Apr-13 2013246000 26-Nov-15 CA Granted 2,869,667 10-Apr-13 2869667 19-Dec-17 CN Granted 201380018751 10-Apr-13 2512525 9-Jun-17 EP Published 13718698.7 10-Apr-13 US Granted 13/442,960 10-Apr-13 9434087 6-Sep-16 AU Granted 2013246002 10-Apr-13 2013246002 17-Dec-15 CA Granted 2,869,752 10-Apr-13 2869752 3-Jan-17 CN Granted 201380018754 10-Apr-13 104245258 3-May-17 US Granted 13/442,966 10-Apr-12 9,108,335 18-Aug-15 CN Granted 201410046641 10-Feb-14 103978829 12-Apr-17 EP Granted 14154551.7 10-Feb-14 EP2764965 21-Sep-16 US Granted 14/176,299 10-Feb-14 9701040 11-Jul-17 AU Granted 2014240951 28-Mar-14 2014240951 30-Jun-16 AU Granted 2013270463 10-Dec-13 2013270463 26-Nov-15 CN Granted 201310674310 11-Dec-13 103866947 4-Jan-17 AU Granted 2014274549 10-Dec-14 2014274549 15-Oct-15 CA Granted 2,873,571 8-Dec-14 2873571 27-Mar-18 CN Published 201407560485 10-Dec-14 AU Pending 2016287834 5-Jul-16 CN Published 2016800338922 5-Jul-16
+
+
+
+
+
+Country App. Status App. Number Filing Date Patent Number Issue Date EP Published 16818951.2 5-Jul-16 TW Published 20160120286 28-Jun-16 WO Published PCT/US16/40942 5-Jul-16 CN Published 201510954585 17-Dec-15 EP Published 15201544.2 21-Dec-15 US Published 14/970,662 16-Dec-15 AU Pending 2016380976 20-Dec-16 CN Published 20168078711 20-Dec-16 EP Pending 16882368 20-Dec-16 US Published 14/980,263 28-Dec-15 WO Published PCT/US2016/067690 20-Dec-16 AU Pending 2016380975 20-Dec-16 CN Published 201680078712 20-Dec-16 EP Pending 16882368 20-Dec-16 US Published 14/980,313 28-Dec-15 WO Published PCT/US2016/067688 20-Dec-16 WO Published PCT/US2017/055068 5-Oct-17 US Published 15902327 22-Feb-18 WO Published PCT/US18/19186 22-Feb-18 US Granted 09/478,016 5-Jan-00 6164351 26-Dec-00 US Granted 11/390,679 28-Mar-06 7537841 26-May-09 US Granted 09/175,661 20-Oct-98 6148884 21-Nov-00 US Granted 09/303,176 30-Apr-99 6156402 5-Dec-00 US Granted 09/241,878 2-Feb-99 6194078 27-Feb-01 US Pending 62/611953 29-Dec-17 US Expired 62/404,413 5-Oct-16 US Expired 62/462,609 23/Feb-17 US Abandoned 09/903,549 13-Jul-01 US Abandoned 14/828,598 18-Aug-15 US Expired 62/187,925 2-Jul-15 US Granted 12/425,560 17-Apr-09 8,357,752 22-Jan-13 US Granted 13/741,770 15-Jan-13 8,617,654 31-Dec-13 AU Granted 2014274559 10-Dec-14 2014274559 24-Mar-16 EP Published 14199378.2 19-Dec-14 CN Published 2015109813242 23-Dec-15 EP Published 15202406.3 23-Dec-15 US Granted 14/580,347 23-Dec-14 9,567,755 14-Feb-17
+
+
+
+
+
+Country App. Status App. Number Filing Date Patent Number Issue Date US Pending 15/724,391 5-Oct-17
+
+
+
+
+
+Schedule 1.1(f) - Arizona Assigned Trademarks
+
+Country Trademark Status App. Number App. Date Reg. Number Reg. Date US AMERICAN SCRAPE Registered 85616030 3-May-12 4481771 11-Feb-14
+
+CA ARTISAN COLLECTIVE Pending 1817435 10-Jan-17
+
+US ARTISAN COLLECTIVE CLTM
+
+CA ARTISTIC TIMBERS Registered 1670991 2-Apr-14 TMA967273 31-Mar-17
+
+US ARTISTIC TIMBERS CLTM
+
+US BIRCH RUN Registered 85/931,142 14-May-13 4,524,637 6-May-14
+
+CA BIRCH RUN Registered 1,636,822 25-Jul-13 TMA905398 4-Jun-15
+
+US BRISTOL TRAIL Registered 86919986 25-Feb-16 5423957 13-Mar-18
+
+CA BRISTOL TRAIL Published 1769733 26-Feb-16
+
+
+
+
+
+Country Trademark Status App. Number App. Date Reg. Number Reg. Date US BRUSHED IMPRESSIONS Registered 86906683 12-Feb-16 5183009 11-Apr-17
+
+CA BRUSHED IMPRESSIONS Published 1768050 16-Feb-16
+
+CA CAPELLA Published 1789784 4-Jul-16
+
+US DUNDEE Registered 86274578 7-May-14 4649247 2-Dec-14
+
+US EVERGUARD Registered 86084365 7-Oct-13 4654066 9-Dec-14
+
+US FARMINGTON Registered 86920079 25-Feb-16 5423958 13-Mar-18
+
+CA FARMINGTON Published 1769729 26-Feb-16
+
+US FOREST GLEN Registered 86084354 7-Oct-13 4633917 4-Nov-14
+
+CA FOREST GLEN Registered 1769732 26-Feb-16 961263 27-Jan-17
+
+
+
+
+
+Country Trademark Status App. Number App. Date Reg. Number Reg. Date CA FORGED HERITAGE Published 1,752,076 26-Oct-15
+
+CA Hydropel Pending 1917541 30-Aug-18
+
+US Hydropel Pending 88148020 9-Oct-18
+
+US LOCK&FOLD Registered 76656450 13-Mar-06 3200208 23-Jan-07
+
+US MIDTOWN Registered 85736605 24-Sep-12 4401628 10-Sep-13
+
+US MILLWORK SQUARE Registered 86906649 12-Feb-16 5183008 11-Apr-17
+
+CA MILLWORK SQUARE Published 1768051 16-Feb-16
+
+CA ORIGINAL RUSTICS Published 1791791 18-Jul-16
+
+US ORIGINAL RUSTICS CLTM
+
+
+
+
+
+Country Trademark Status App. Number App. Date Reg. Number Reg. Date US PARAGON CLTM
+
+CA PARAGON CLTM
+
+US PRIME HARVEST Registered 86/285,289 19-May-14 4,742,207 26-May-15
+
+CA PRIME HARVEST Registered 1,677,599 20-May-14 TMA906580 17-Jun-15
+
+US RIGHT EVERY TIME Published 87261852 8-Dec-16
+
+US RUSTIC RESTORATIONS Published 87215879 26-Oct-16 5520272 17-Jul-18
+
+CA RUSTIC RESTORATIONS Pending 1806462 26-Oct-16
+
+US SDF Pending '87947440 4-Jun-18
+
+CA SDF Pending 1902212 1-Jun-18
+
+
+
+
+
+Country Trademark Status App. Number App. Date Reg. Number Reg. Date US SIGNATURE SCRAPE Registered 86920111 25-Feb-16 5187924 18-Apr-17
+
+CA SIGNATURE SCRAPE Published 1769731 26-Feb-16
+
+CA SIGNATURE SOFT SCRAPE Published 1769730 26-Feb-16
+
+US TimberBlock Published 87839322 19-Mar-18
+
+CA TimberBlock Pending 1889001 20-Mar-18
+
+US TIMBERBRUSHED Registered 87105110 15-Jul-16 5267454 15-Aug-17
+
+US TIMBERCUTS Registered 87295586 10-Jan-17 5371502 2-Jan-18
+
+CA TIMBERCUTS Pending 1817434 10-Jan-17
+
+US TIMBERLAND Registered 76496979 13-Mar-03 2923877 1-Feb-05
+
+
+
+
+
+Country Trademark Status App. Number App. Date Reg. Number Reg. Date CA TRANQUIL WOODS Published 1790828 11-Jul-16
+
+US TRANQUIL WOODS CLTM
+
+US TruTop Published 87870541 10-Apr-18
+
+CA TruTop Pending 1892873 10-Apr-18
+
+CA VINTAGE FARMHOUSE Published 1790827 11-Jul-16
+
+US WEAR MASTER Registered 74/329383 9-Nov-92 1834641 3-May-94
+
+CN WEAR MASTER Registered 4819937 5-Aug-05 4819937
+
+CA OPAL CREEK Registered 1738695 23-Jul-15 1002365 08-Aug-18
+
+US OPAL CREEK Registered CLTM
+
+
+
+
+
+Schedule 1.1(g) - Arizona Domain Names
+
+Domain Name Expiration date Owner armstrongwoodproducts.com 19-Dec- 2018 AFI
+
+
+
+
+
+Schedule 1.1(l) - Arizona Licensed Patents COUNTRY APP NO. FILING DATE PATENT NUMBER ISSUE DATE AU 2009241803 30-Apr-09 2009241803 26-Sep-13 AU 2013231111 19-Sep-13 2013231111 7-Jan-16 CN 200980120494 30-Apr-09 DE 60 2009 024 610.0 30-Apr-09 2 286 018 EP 9739191.6 30-Apr-09 2286018 11-Jun-14 EP 13192693.3 30-Apr-09 2703461 31-Aug-16 FR 9739191.6 30-Apr-09 2 286 018 11-Jun-14 GB 9739191.6 30-Apr-09 2 286 018 11-Jun-14 US 12/432,845 30-Apr-09 8,420,710 16-Apr-13 US 14/700,669 30-Apr-15 BE 10770074.2 29-Nov-11 2 424 911 23-Mar-16 DE DE 60 2010 031 448.0 29-Nov-11 2 424 911 23-Mar-16 EP 10770074.2 29-Nov-11 2 424 911 23-Mar-16 FR 10770074.2 29-Nov-11 2 424 911 23-Mar-16 GB 10770074.2 29-Nov-11 2 424 911 23-Mar-16 NL 10770074.2 29-Nov-11 2 424 911 23-Mar-16 US 12/799,700 30-Apr-10 US 14/140,206 24-Dec-13 AU 2012286867 26-Jul-12 2012286867 4-Feb-16 CN 2012800367594 26-Jul-12 2094039 1-Jun-16 DE 12751639.1 26-Jul-12 EP2736977 20-May-15 EP 12751639.1 26-Jul-12 EP2736977 20-May-15 GB 12751639.1 26-Jul-12 EP2736977 20-May-15 AU 2013222106 25-Feb-13 2013222106 25-Feb-13 EP 13707792.1 25-Feb-13 US 14/380,432 22-Aug-14 9540825 10-Jan-17 AU 2013308554 30-Aug-13 2013308554 28-Apr-16 CN 201380046030 4-Mar-15 2789549 23-Jan-18 EP 13770989.5 30-Mar-15 EP2890749 16-May-18 US 14/423,186 23-Feb-15 AU 2014207438 8-Jul-15 2014207438 9-Feb-17 EP 14702412.9 14-Aug-15 US 14/760,080 9-Jul-15 AU 2014207441 8-Jul-15 2014207441 10-Nov-16 CN 2014800055962 15-Jul-15 2581656 11-Aug-17 EP 14703007.6 14-Aug-15
+
+
+
+
+
+COUNTRY APP NO. FILING DATE PATENT NUMBER ISSUE DATE US 14/760,060 9-Jul-15 AU 2015227440 16-Sep-15 2015227440 30-Mar-17 CN 2015105859497 23-Dec-14 3045520 24-Aug-18 EP 15198373.1 8-Dec-15 US 14/580,312 23-Dec-14 9650792 16-May-17 EP 1151281 12-Jul-00 1072659 13-Oct-04 US 10/062,616 31-Jan-02 6572932 3-Jun-03 US 10/060,487 30-Jan-02 6911263 28-Jun-05 AU 2016243556 6-Nov-17 CN 2016800223098 16-Oct-17 EP 16719581.7 14-Nov-17 TW 105110285 31-Mar-16 624366 21-May-18 US 14/678,163 3-Apr-15 WO PCT/US16/24457 28-Mar-16 AU 2016243132 6-Nov-17 CN 2016800229978 20-Oct-17 EP 16718052 14-Nov-17 US 15564161 3-Oct-17 WO PCT/US16/24462 28-Mar-16 US 62/142,611 3-Apr-15 AU 2016243552 6-Nov-17 CN 2016800226325 18-Oct-17 EP 16719580.9 14-Nov-17 US 14/678,183 3-Apr-15 WO PCT/US16/24451 28-Mar-16 AU 2016357732 18-Apr-18 CN 2016800648806 7-May-18 EP 16866982.8 14-Jun-18 US 15776637 16-May-18 WO PCT/US2016/062133 16-Nov-16 WO PCT/US2017/055060 5-Oct-17 WO PCT/US2017/055047 4-Oct-17 WO PCT/US2017/055077 4-Oct-17 WO PCT/US2017/055089 5-Oct-17 WO PCT/US2017/055044 5-Oct-17 WO PCT/US2017/055033 4-Oct-17 US 14/721,724 26-May-15 9468314 18-Oct-16
+
+
+
+
+
+Schedule 1.1(m) - Arizona Licensed Trademarks
+
+ARMSTRONG
+
+
+
+
+
+Schedule 1.1(s) - Company Licensed Patents
+
+Country App. Status App. Number Filing Date Patent Number Issue Date US Granted 12/425,560 17-Apr-09 8,357,752 22-Jan-13 US Granted 13/741,770 15-Jan-13 8,617,654 31-Dec-13 CN Published 2015109813242 23-Dec-15 EP Published 15202406.3 23-Dec-15 US Granted 14/580,347 23-Dec-14 9,567,755 14-Feb-17 US Pending 15/724,391 5-Oct-17
+
+
+
+
+
+Schedule 1.1(u) - Diamond Licensed Trademarks
+
+DIAMOND 10
+
+
+
+
+
+Schedule 6.1 - Presentation of Arizona Licensed Trademarks
+
+Armstrong Logo Usage: 1. Logo Colors: The Armstrong logo can appear only in black, white or 100% Tungsten. If reversed out white, it should be on a dark background color. The entire mark must be the same color. The Armstrong logo cannot be used alone.
+
+2. Logo Size: The minimum logo size is 1" or 25mm. In digital formats, the minimum width is 100 pixels at 72 dpi.
+
+
+
+
+
+3. Clear Space: If the business unit identifier is used below the logo, the clear space is 1∕2 the diameter of the Armstrong ring on the top, right side and left side and the width of the stem in in the lower case "r" on the bottom.
+
+If the business unit identifier is used above the logo, the clear space is 1∕2 the diameter of the Armstrong ring on the right side, left side and bottom and the width of the stem of the lower case "r" on the top.
+
+a. There is no clear space defined below the business unit identifier if used below the logo and no clear space defined above the business unit identifier if used above the logo. b. If the business unit identifier is two lines, the clear space definition applies to the top most line, if used above, or bottom most line, if used below the Armstrong logo. 4. Font: The Armstrong logo is considered art and the font type, spacing, bold, cannot be modified.
+
+  5. Logo Background: The logo should never be used on a busy background or one that does not provide enough contrast.
+
+
+
+
+
+6. Logo Direction: The logo can be used on an angle or vertically but must read left to right and top to bottom
+
+7. Circle A: The Circle A can never be used as a separate graphic element.
+
+Notice: 1. The trademark should always be distinguishable from surrounding text - at a minimum, the trademark notice (TM or ®) should be used at least the first time in the text. After first instance, mark should appear with some other distinguishing feature (e.g., different font, all caps, and/or different color) from the surrounding text. 2. Must include notice of AWI Licensing LLC's ownership of the trademark within the credit notice of the product, product documentation, or other product communication. (E.g., Armstrong and the Armstrong Logo are registered trademarks of AWI Licensing LLC.
+
+
+
+
+
+Schedule 6.2 - Presentation of Diamond Licensed Trademarks
+
+Diamond 10® Technology trademark and logo usage: 1. When using Diamond 10® Technology in sentences to identify goods or services: a. Always mark with ® (required for first usage on page) b. Always add a space between Diamond and 10. c. Always keep the entire mark together. 2. Use of Diamond 10® or the Diamond 10® logo must include notice of AFI Licensing LLC's ownership of the trademark within the credit notice of the product, product documentation, or other product communication. (E.g., Diamond 10 and the Diamond 10 Technology logo are registered trademarks of AFI Licensing LLC.) 3. Logo Colors: Can appear only in White or 4 Color Process comprised of Morado, Tungsten and Black. If reversed out White, use only on dark background color for contrast.
+
+COLORS
+
+
+
+
+
+4. Logo Size: A general guideline for the maximum width of the logo in any application should be the equivalent to 20% of the width of the shortest side. Exceptions may be made for signage and promotional materials. The minimum logo size is 1" or 25mm. In digital formats, the minimum width is 100 pixels at 72 dpi.
+
+
+
+
+
+5. Clear Space: The size of the clear space around the logo is determined by the size of the circle of the capital height of the word diamond.
+
+6. Font: The Diamond 10 Technology logo is considered art and the font type, spacing, bold, cannot be modified.
+
+7. Logo Background: The logo should never be used on a busy background or one that does not provide enough contrast.
+
+
+
+
+
+Exhibit A - Trademark License Agreement
+
+Attached.
+
+
+
+
+
+Exhibit B - Form of Patent Assignment
+
+FORM OF PATENT ASSIGNMENT
+
+This PATENT ASSIGNMENT (the "Assignment"), dated as of December 31, 2018 (the "Effective Date"), is by and between Armstrong Flooring, Inc., a Delaware corporation ("Seller") and AFI Licensing LLC, a Delaware limited liability company ("Licensing" and together with Seller, "Assignor") and Armstrong Hardwood Flooring Company, a Tennessee corporation (the "Company" or "Assignee") (each of Assignor and Assignee, a "Party" and collectively, the "Parties"). All capitalized terms used, but not defined herein, shall have the meanings ascribed to such terms in the Intellectual Property Agreement (defined herein below).
+
+WHEREAS, Seller and AHF Holding, Inc. (formerly known as Tarzan Holdco, Inc.), a Delaware corporation ("Buyer") have entered into that certain Stock Purchase Agreement, dated November 14, 2018 (the "SPA") and Seller, Buyer and the Company have entered into that certain Intellectual Property Agreement, dated December 31, 2018 (the "Intellectual Property Agreement");
+
+WHEREAS, pursuant to the SPA, the Seller has agreed to sell and transfer, and the Buyer has agreed to purchase and acquire, all of Seller's right, title and interest in and to Armstrong Wood Products, Inc. and the Company Subsidiaries (including the Company) by way of a purchase by Buyer and sale by Seller of the Shares, all upon the terms and condition set forth therein; and
+
+WHEREAS, pursuant to the Intellectual Property Agreement, Assignor has agreed to sell, convey, assign, and transfer to Assignee all of Assignor's right, title, and interest in and to the patent applications and registrations set forth on Schedule A hereto (collectively, the "Assigned Patents").
+
+NOW, THEREFORE, in consideration of the foregoing recitals, the mutual covenants and conditions contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereto agree as follows:
+
+1. Conveyance. Assignor does hereby irrevocably sell, convey, grant, set over, assign and transfer to Assignee, without reservation of any rights, title or interest, all of Assignor's right, title and interest in and to the Assigned Patents, all rights corresponding to the Assigned Patents throughout the world, and all continuations, continuations-in-part, divisions or renewals thereof, all patents that may be granted therefrom, all reissues, re-exams, or extensions of such patents, and in and to any applications that have been or shall be filed in any country, and all patents or utility models of countries that may be granted therefrom, for its own use and enjoyment, and for the use and enjoyment of any of Assignee's successors and assigns, as the
+
+
+
+
+
+same would have been held and enjoyed by Assignor if this Assignment had not been made, together with any and all claims or causes of infringement thereof that may have accrued prior to the effective date of this Assignment, together with the right to bring suit for and/or initiate any proceeding to collect any and all damages arising from said claims or causes of action. Assignee hereby accepts such assignment, transfer and conveyance.
+
+2. Recordation. Assignor hereby authorizes and requests the Commissioner of Patents and Trademarks and any other applicable governmental entity or registrar (including any applicable foreign or international office or registrar), to record Assignee as the owner of the Assigned Patents, and to issue any and all Assigned Patents to Assignee, as assignee of Assignor's entire right, title and interest in, to, and under the same. Assignee shall have the right to record this Assignment with all applicable governmental authorities and registrars so as to perfect its ownership of the Assigned Patents.
+
+3. Further Assistance. Upon Assignee's reasonable request and at Assignee's sole cost and expense, Assignor shall (i) provide any further assistance reasonably necessary to effect the assignment of all rights, title and interest in and to the Assigned Patents to Assignee, including, but not limited to, the execution of any further documents and instruments, and (ii) take such other actions as are reasonably necessary to document the aforesaid assignment and transfer to Assignee.
+
+4. No Modification. Nothing contained in this Assignment is intended to or shall be deemed to modify, alter, amend or otherwise change any of the rights or obligations of Assignor and Assignee and their respective Affiliates under the SPA or the Intellectual Property Agreement.
+
+5. Successors and Assigns. This Assignment shall inure to the benefit of and be binding upon the Parties hereto and their respective successors and permitted assigns.
+
+6. Counterparts. This Assignment may be executed in any number of counterparts, including by means of email in portable document format (.pdf), each of which when executed shall be deemed to be an original copy of this Assignment and all of which taken together shall constitute one and the same agreement.
+
+7. Descriptive Headings. The descriptive headings herein are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Assignment.
+
+8. Governing Law. This Assignment shall be governed by the laws of the State of Delaware, its rules of conflict of laws notwithstanding. Each Party hereby agrees and consents to be subject to the jurisdiction of the Court of Chancery of the State of Delaware in and for New Castle County, or if the Court of Chancery lacks jurisdiction over such dispute, in any
+
+
+
+
+
+state or federal court having jurisdiction over the matter situated in New Castle County, Delaware, in any Action seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Assignment or the transactions contemplated hereby.
+
+9. Severability. If any term or other provision of this Assignment, or any portion thereof, is invalid, illegal or incapable of being enforced by any rule of law or public policy, all other terms and provisions of this Assignment, or the remaining portion thereof, shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party. Upon such determination that any such term or other provision, or any portion thereof, is invalid, illegal or incapable of being enforced, the Parties hereto shall negotiate in good faith to modify this Assignment so as to effect the original intent of the Parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are consummated to the fullest extent possible.
+
+10. Authority. Each Party hereby represents that its undersigned representative is authorized and legally competent to execute this Assignment as a binding and enforceable agreement.
+
+[Signature Page Follows]
+
+
+
+
+
+IN WITNESS WHEREOF, the Parties have caused this Assignment to be executed as of the date above first written by their duly authorized representatives. SELLER:
+
+By: Name: Title:
+
+LICENSING
+
+By: Name: Title:
+
+Acknowledged and Accepted:
+
+ASSIGNEE:
+
+By: Name: Title:
+
+
+
+
+
+SCHEDULE A TO PATENT ASSIGNMENT
+
+
+
+
+
+Exhibit C - Form of Trademark Assignment
+
+FORM OF TRADEMARK ASSIGNMENT
+
+This TRADEMARK ASSIGNMENT (the "Assignment"), dated as of December 31, 2018 (the "Effective Date"), is by and between Armstrong Flooring, Inc., a Delaware corporation ("Seller") and AFI Licensing LLC, a Delaware limited liability company ("Licensing" and together with Seller, "Assignor") and Armstrong Hardwood Flooring Company, a Tennessee corporation (the "Company" or "Assignee") (each of Assignor and Assignee, a "Party" and collectively, the "Parties"). All capitalized terms used, but not defined herein, shall have the meanings ascribed to such terms in the Intellectual Property Agreement (defined herein below).
+
+WHEREAS, Seller and AHF Holding, Inc. (formerly known as Tarzan Holdco, Inc.), a Delaware corporation ("Buyer") have entered into that certain Stock Purchase Agreement, dated November 14, 2018 (the "SPA") and Seller, Buyer and the Company have entered into that certain Intellectual Property Agreement, dated December 31, 2018 (the "Intellectual Property Agreement");
+
+WHEREAS, pursuant to the SPA, the Seller has agreed to sell and transfer, and the Buyer has agreed to purchase and acquire, all of Seller's right, title and interest in and to the Company and the Company Subsidiaries (including the Company) by way of a purchase by Buyer and sale by Seller of the Shares, all upon the terms and condition set forth therein; and
+
+WHEREAS, pursuant to the Intellectual Property Agreement, Assignor has agreed to sell, convey, assign, and transfer to Assignee all of Assignor's right, title, and interest in and to the trademarks applications and registrations set forth on Schedule A hereto (collectively, the "Assigned Marks").
+
+NOW, THEREFORE, in consideration of the foregoing recitals, the mutual covenants and conditions contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereto agree as follows:
+
+11. Conveyance. Assignor does hereby irrevocably sell, convey, grant, set over, assign and transfer to Assignee, without reservation of any rights, title or interest, all of Assignor's worldwide and universal rights, title and interest in and to the Assigned Marks, including, but not limited to, the applications and registrations therefor which are identified in Schedule A attached hereto, together with the goodwill of the business symbolized by such Assigned Marks, the same to be held and enjoyed by Assignee, for its own use and enjoyment, and for the use and enjoyment of any of Assignee's successors and assigns, as the same would have been held and enjoyed by Assignor if this Assignment had not been made, including, but not limited to, all common-law rights of Assignor in and/or to the Assigned Marks, and
+
+
+
+
+
+Assignor's right to sue for all claims, demands and/or causes of action, both at law and in equity, that Assignor may have on account of any infringement, claim of unfair competitions, likelihood of confusion or dilution of the Assigned Marks or any other claim or cause of action related to the Assigned Marks prior to and following the effective date of this Assignment. Assignor further assigns to Assignee the right to sue and recover damages and/or profits for claims of past, present and/or future infringement, unfair competition, dilution, or any other violation or unlawful act relating to the Assigned Marks, if any. Assignee hereby accepts such grant, assignment, transfer and conveyance.
+
+12. Recordation. Assignor hereby authorizes and requests the Commissioner of Patents and Trademarks and any other applicable governmental entity or registrar (including any applicable foreign or international office or registrar), to record Assignee as the owner of the Assigned Marks, and to issue any and all Assigned Marks to Assignee, as assignee of Assignor's entire right, title and interest in, to, and under the same. Assignee shall have the right to record this Assignment with all applicable governmental authorities and registrars so as to perfect its ownership of the Assigned Marks.
+
+13. Further Assistance. Upon Assignee's reasonable request and at Assignee's sole cost and expense, Assignor shall (i) provide any further assistance reasonably necessary to effect the assignment of all rights, title and interest in and to the Assigned Marks to Assignee, including, but not limited to, the execution of any further documents and instruments, and (ii) take such other actions as are reasonably necessary to document the aforesaid assignment and transfer to Assignee.
+
+14. No Modification. Nothing contained in this Assignment is intended to or shall be deemed to modify, alter, amend or otherwise change any of the rights or obligations of Assignor and Assignee and their respective Affiliates under the SPA or the Intellectual Property Agreement.
+
+15. Successors and Assigns. This Assignment shall inure to the benefit of and be binding upon the Parties hereto and their respective successors and permitted assigns.
+
+16. Counterparts. This Assignment may be executed in any number of counterparts, including by means of email in portable document format (.pdf), each of which when executed shall be deemed to be an original copy of this Assignment and all of which taken together shall constitute one and the same agreement.
+
+17. Descriptive Headings. The descriptive headings herein are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Assignment.
+
+
+
+
+
+18. Governing Law. This Assignment shall be governed by the laws of the State of Delaware, its rules of conflict of laws notwithstanding. Each Party hereby agrees and consents to be subject to the jurisdiction of the Court of Chancery of the State of Delaware in and for New Castle County, or if the Court of Chancery lacks jurisdiction over such dispute, in any state or federal court having jurisdiction over the matter situated in New Castle County, Delaware, in any Action seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Assignment or the transactions contemplated hereby.
+
+19. Authority. Each Party hereby represents that its undersigned representative is authorized and legally competent to execute this Assignment as a binding and enforceable agreement.
+
+20. Severability. If any term or other provision of this Assignment, or any portion thereof, is invalid, illegal or incapable of being enforced by any rule of law or public policy, all other terms and provisions of this Assignment, or the remaining portion thereof, shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party. Upon such determination that any such term or other provision, or any portion thereof, is invalid, illegal or incapable of being enforced, the Parties hereto shall negotiate in good faith to modify this Assignment so as to effect the original intent of the Parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are consummated to the fullest extent possible.
+
+[Signature Page Follows]
+
+
+
+
+
+IN WITNESS WHEREOF, the Parties have caused this Assignment to be executed as of the date above first written by their duly authorized representatives. SELLER:
+
+By: Name: Title:
+
+LICENSING:
+
+By: Name: Title:
+
+Acknowledged and Accepted:
+
+ASSIGNEE:
+
+By: Name: Title:
+
+
+
+
+
+SCHEDULE A TO TRADEMARK ASSIGNMENT

full_contract_txt/ASHWORTHINC_01_29_1999-EX-10.(D)-PROMOTION AGREEMENT AND NANTZ COMMUNICATIONS, INC..txt

@@ -0,0 +1,203 @@
+EXHIBIT 10(d)
+
+PROMOTION AGREEMENT                        ASHWORTH, INC., JAMES W. NANTZ III                          AND NANTZ COMMUNICATIONS, INC.                                               THIS AGREEMENT is entered into by and among ASHWORTH, INC. (The "Company" or "Ashworth"), JAMES W. NANTZ III ("Nantz") and NANTZ COMMUNICATIONS, INC. ("Nantz Communications"), effective as of June 1, 1998.
+
+WHEREAS, the Company desires to retain Nantz Communications and Nantz to provide certain promotional and other services and Nantz Communications and Nantz are willing to provide such services on the terms and conditions set forth herein; and
+
+WHEREAS, the parties hereto desire to set forth in writing their agreement as to such promotion arrangement;
+
+NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
+
+DEFINITIONS
+
+As used herein, the terms set forth below shall be defined as follows:
+
+ENDORSEMENT shall include only the right to use the name, any nickname, initials, autograph, facsimile signature, photograph, portrait, likeness, and/or endorsement of Nantz.
+
+ASHWORTH APPAREL shall mean all ASHWORTH(R) brand sportswear apparel contained in the Company's present and future collections (during the Term (as defined below)).
+
+ASHWORTH PRODUCTS shall mean, collectively, Ashworth Apparel and Ashworth hats and shoes.
+
+DISABILITY shall mean mental or physical illness or condition rendering Nantz incapable of fulfilling the services to be provided by him under this Agreement for a continuous period of at least 60 days.
+
+PREMIUM PROGRAM shall mean any traffic builder or other program involving the use of a premium to sell products or services other than Ashworth products and shall include any program primarily designed to attract the consumer to purchase a product or service other than Ashworth Products themselves.
+
+CONTRACT YEAR shall mean a period of twelve (12) successive months commencing on any first day of June during the Term.
+
+Ashworth/Nantz Promotion Agreement - -------------------
+
+TERM OF RELATIONSHIP                                          1.   GRANT AND ACCEPTANCE.  The Company hereby retains Nantz Communications and      Nantz to provide the below described services (the "Services") and Nantz      Communications and Nantz agree to provide the Services upon the terms and      conditions herein set forth.
+
+2.   TERM.  Except as otherwise provided herein, this Agreement shall commence      effective June 1, 1998, and shall continue for a term of three (3) years      expiring May 31, 2001 (the "Term").
+
+SERVICES
+
+Nantz Communications and Nantz shall furnish the following Services:
+
+1.   ENDORSEMENT.  Subject to the terms and conditions hereof, Nantz      Communications grants to the Company the Endorsement throughout the world      during the Term in connection with the advertisement, promotion and sale by      the Company of Ashworth Products except in connection with Premium      Programs.
+
+2.   ASHWORTH APPAREL AND PRODUCTS.  Subject to any restrictions, contractual or      otherwise, on Nantz Communications or Nantz (collectively, the      "Restrictions"), Nantz shall wear Ashworth Products, when possible and as      reasonably appropriate, while broadcasting all professional sports      tournaments and other professional sports outings, and during any      professional sports clinics or instructions given by Nantz Communications      or Nantz; provided that the Company has provided Nantz, at no charge, with      sufficient amounts of Ashworth Products in styles and sizes Nantz finds      suitable and appropriate for his use,  subject to the restriction under      Paragraph 4 of Section COMPENSATION AND CONSULTING FEES.
+
+3.   LOGOS.  Except as otherwise provided herein, and subject to the      Restrictions, Nantz Communications agrees that such Products may      prominently bear the Company's logo and shall not bear any other logos.
+
+
+
+
+
+4.   PHOTOGRAPHY, SPEAKING AND STORE APPEARANCES.  Nantz agrees to be available      for up to four photography sessions (2  in Southern California during the      week and 2 to be at Nantz's site locations or tournaments), two speaking      engagements, and three store appearances each Contract Year, at times and      places mutually convenient for Nantz and the Company but in no event at      times which adversely impact on the schedules of Nantz Communications or      Nantz.  Nantz Communications shall have the right to review and reject in      good faith the use of any advertising, promotion or other programs and      materials which include Nantz or his image.  No use shall be made of any      such programs or materials hereunder unless and until the same has been      approved by Nantz
+
+Ashworth/Nantz Promotion Agreement - -------------------
+
+Communications. The Company agrees that each photography session shall not      exceed one and one-half days and each speaking engagement and store      appearance shall not exceed one-half day. The Company further understands      that failure to utilize services of Nantz pursuant to this section shall      not result in any reduction in payments to Nantz Communications hereunder,      nor may the obligations to provide Services be carried forward from one      Contract Year to another Contract year. The obligations of Nantz      Communications and Nantz to provide the Services hereunder are subject to      the condition that payments to Nantz Communications are current and up to      date.
+
+5.   NEW ACCOUNTS, CELEBRITIES.  Nantz agrees to assist Ashworth in locating      potential new accounts based on his professional contacts, assist Ashworth      in gaining access to celebrities and CBS executives which Ashworth could      provide clothes for special events and also assist in gaining access to      non-golf professionals who potentially would wear Ashworth clothes.
+
+6.   SPECIAL EVENTS.  Nantz will assist Ashworth in creating, promoting and      participating in an event (i.e., golf tournament, cocktail reception, etc.)                                 ----                                                  to be associated with a major sporting event (i.e., PGA Championship,                                                    ----                         Masters, etc.).
+
+7.   EMPLOYEE STATUS.  Nantz will be a full time Ashworth employee rather than       an independent contractor.
+
+8.   BOARD OF DIRECTORS.  Nantz agrees to be nominated, elected to and serve on      the Board of Directors of Company in the capacity of voting director.
+
+9.   OTHER OBLIGATIONS.  The Company acknowledges that Nantz Communications' and      Nantz's obligations to CBS or any other television station or network with      which Nantz Communications or Nantz has a contract or arrangement shall      take precedence over any other commitments of Nantz Communications or Nantz      under this Agreement.
+
+INDEMNIFICATION
+
+Neither Nantz Communications nor Nantz shall be liable for any obligations of the Company resulting directly or indirectly from the Endorsement of Ashworth Products.  The Company shall protect, indemnify and hold harmless each of Nantz Communications and Nantz against any and all expenses, damages, claims, suits, actions, judgments and costs whatsoever, arising out of, or in any way connected with such Endorsement, in any advertising or promotional materials furnished by or on behalf of the Company, actions or omissions of the Company or any claim or action for personal injury, death or other cause of action involving alleged defects in Ashworth Products, including but not limited to indemnification of reasonable legal expenses incurred in defense of all such claims.  Further, Nantz Communications or Nantz shall have the
+
+Ashworth/Nantz Promotion Agreement - -------------------
+
+right to select legal counsel to represent it or him in the event of any such claims or legal proceedings, and the costs of such legal representation shall be paid by the Company.
+
+INSURANCE
+
+The Company agrees to provide and maintain, at its own expense, advertising and product liability insurance each with limits no less than $5,000,000 and within thirty (30) days from the date hereof, the Company will submit to Nantz Communications a fully paid policy or certificate of insurance naming Nantz Communications and Nantz as insured parties, requiring that the insurer shall not terminate or materially modify such without written notice to Nantz Communications at least twenty (20) days in advance thereof.
+
+The Company further agrees to provide and maintain, at its own expense, a policy of Directors and Officers Insurance with limits no less than $25,000,000 and within thirty (30) days from the date hereof, the Company will submit to Nantz Communications a fully paid policy or certificate of insurance naming Nantz as an insured party, requiring that the insurer shall not terminate or materially modify such without written notice to Nantz Communications at least twenty (20) days in advance hereof.
+
+
+
+
+
+COMPENSATION AND CONSULTING FEES
+
+As full compensation for Services, the Company shall pay Nantz Communications the following fees:
+
+10.  CONSULTING FEE.  The Company shall pay Nantz Communications an annual      consulting fee of $30,000, such fee to be paid in equal quarterly      installments of $7,500 on the 1st day of each June, September, December and      March of each Contract year.
+
+11.  ADDITIONAL FEES.  If Nantz agrees to participate in more than three store      appearances in any given Contract Year, the Company shall pay Nantz      Communications an additional fee of $7,500 for such additional appearance      prior to or simultaneously with such appearances.
+
+12.  REIMBURSEMENT OF EXPENSES.  The Company shall reimburse Nantz      Communications for expenses reasonably incurred by Nantz or Nantz      Communications in connection with the Services to the Company including,      but not limited to, first-class air fare, hotel accommodations, local      transportation and meals.  Nantz Communications shall furnish the Company      with an itemized statement from time to time, together with, whenever      possible, actual bills, receipts, and other evidence of expenditure.  Nantz      Communications shall be reimbursed within thirty (30) days after receipt by      the Company of such itemized statements and attachments.
+
+Ashworth/Nantz Promotion Agreement - -------------------
+
+As full compensation for Services, the Company shall provide and issue to Nantz the following:
+
+13.  APPAREL.  The Company shall furnish Nantz, at no cost, with sufficient      Ashworth Products to be used by him in connection with the Services and for      the personal use of Nantz and his immediate family.  The cost of said      Product shall not exceed $12,000 (at wholesale) during any single Contract      Year.
+
+14.  STOCK OPTIONS.  a) As consideration for the rights granted and the services      to be rendered hereunder, the Company hereby grants to Nantz options (the      "Options"), to purchase shares of the common stock of the Company par value      $.001 per share (the "Share"), which are exercisable as follows:
+
+15.  The first Option to purchase 40,000 Shares upon payment of the aggregate      Option Share Price (as defined below) for the number of Shares so purchased      shall become exercisable on June 1, 1999, unless this Agreement is      terminated as provided herein prior to such date, in which case this Option      shall be canceled.  Once exercisable, this Option may be exercised in full      or in any number of partial exercises or in combination with the full or      partial exercise of any other Option for a period terminating upon the      earlier to occur of (A) the fifth anniversary of the initial exercisability      date or (B) the date of termination of this Agreement, as provided herein,      if this Agreement is terminated prior to May 30, 2001.
+
+16.  The second Option to purchase up to an additional 40,000 shares upon      payment of the aggregate Option Share Price for the number of Shares so      purchased shall become exercisable on June 1, 2000, unless this Agreement      is terminated as provided herein prior to such date, in which case this      Option shall be canceled.  Once exercisable, this Option may be exercised      in full or in any number of partial exercises or in combination with the      full or partial exercise of any other Option for a period terminating upon      the earlier to occur of (A) the fifth anniversary of the initial      exercisability date or (B) the date of termination of this Agreement, as      provided herein, if this Agreement is terminated prior to May 30, 2001;
+
+17.  The third Option to purchase up to an additional 40,000 shares upon payment      of the aggregate Option Share Price for the number of Shares so purchased      shall become exercisable on June 1, 2001, unless this Agreement is      terminated as provided herein prior to such date, in which case this Option      shall be canceled.  Once exercisable, this Option may be exercised in full      or in any number of partial exercises or in combination with the full or      partial exercise of any other Option for a period terminating upon the      earlier to occur of (A) the fifth anniversary of the initial exercisability      date or (B) the date of termination of this Agreement, as provided herein,      if this Agreement is terminated prior to May 30, 2001;
+
+The "Option Share Price" shall initially be $6 per Share as approved by the Compensation Committee at its regular meeting held on December 15, 1998.
+
+Ashworth/Nantz Promotion Agreement - -------------------
+
+b)  The Options being granted hereunder are being granted under and subject to the terms and conditions of the Ashworth, Inc. Amended and Restated Incentive Stock Option Plan, dated November 1, 1996, ("Amended Plan") and all Shares issued upon the exercise of any Option shall be registered under the Securities Act of 1933, as amended.
+
+EXCLUSIVITY
+
+During the Term, neither Nantz Communications nor Nantz shall enter into
+
+
+
+
+
+any activity, employment, independent contract, or other business arrangement which conflicts with Nantz Communications' or Nantz's obligations under this Agreement or perform any service which reasonably appears to be an endorsement of the sportswear apparel, hats and shoes of a third party without the Company's prior written approval.  Nantz Communications and Nantz expressly agree that the Endorsement will not be granted to anyone other than the Company for use during the Term in connection with the advertisement and promotion of sportswear apparel, hats and shoes.  Notwithstanding the foregoing Nantz shall be permitted to wear a Lynx hat or clothing logo when performing promotional services for Lynx and to use Lynx equipment when performing any promotional services for the Company in which equipment will be used.
+
+TERMINATION
+
+This Agreement may be terminated by any party in the following circumstances:
+
+18.  Upon mutual consent of the Company, on the one hand, and Nantz      Communications and Nantz, on the other hand;
+
+19.  Nantz's Disability or death, in which event the Agreement shall terminate      on the May 1 following such Disability or death;
+
+20.  Repeated misconduct of Nantz which subjects Nantz to continued public      ridicule causing a substantial loss of Nantz's positive public image;
+
+21.  Nantz's conviction or plea of guilty or no contest to a felony involving      moral turpitude;
+
+22.  A finding of insolvency or bankruptcy against the other party (which, in      the case of a desired termination by the Company, shall mean Nantz      Communications or Nantz); and
+
+23.  Failure to comply with the terms and conditions of this Agreement after      being given notice thereof and, where applicable, a reasonable opportunity      to cure the failure (which shall be 10 days in the event of a failure to      timely make a payment pursuant hereto; 30 days otherwise).  In order to be      a sufficient notice hereunder, any such written notice shall specify in      detail each item of default, and shall specify in detail the action the      defaulting party is required to take in order to cure each item.
+
+Ashworth/Nantz Promotion Agreement - -------------------
+
+Notwithstanding the foregoing, upon the occurrence of repeated intentional failures to comply with the terms and conditions of this Agreement, which have been noticed in accordance with the terms hereof (regardless of whether such failures have been cured), the non-defaulting party may immediately terminate this Agreement upon written notice to the defaulting party without affording a further opportunity to cure.
+
+Should Nantz Communications or Nantz disagree with the Company as to the existence of a condition affording the Company the right to so terminate this Agreement, Nantz Communications or Nantz shall, within thirty (30) days following the receipt of any such notice of termination, submit the matter to arbitration pursuant to the provisions of this Agreement.
+
+The termination rights set forth in this section shall not constitute the exclusive remedy of the non-defaulting party hereunder, however, and if a default is made by either party hereunder, the other may resort to such other remedies as said party would have been entitled to if this section had been omitted from this Agreement.  Termination under the provisions of this section shall be without prejudice to any rights or claims which the terminating party may otherwise have against the defaulting party.
+
+From and after the termination of the Term all of the rights of the Company to the use of the Endorsement shall cease absolutely and the Company shall not thereafter use or refer to the Endorsement in advertising or promotion in any manner whatsoever.  The Company shall not advertise, promote, distribute or sell any item whatsoever in connection with the use of any name, figure, design, logo, trademark or trade name confusingly similar to or suggestive of the Endorsement following the termination of the Term.
+
+ASSIGNMENT                                               This Agreement shall bind and inure to the benefit of the parties hereto and their respective successors and permitted assigns.  Nantz Communications and Nantz acknowledge that the Services to be rendered by Nantz Communications and Nantz are unique and personal.  Accordingly, except as otherwise expressly provided below, neither Nantz Communications nor Nantz shall assign any of their respective rights or delegate any of their respective duties or obligations under this Agreement without the written consent of the Company.  Nothing herein shall prevent Nantz Communications from assigning the monetary benefits of this Agreement as it may so desire.  Further, inasmuch as it is recognized that Nantz Communications is the representative of Nantz, Nantz Communications may at any time assign this Agreement to Nantz and, in such event, Nantz Communications shall have no further obligation or liability in connection herewith and Nantz Communications' position vis-a'-vis the Company in connection herewith shall be in all respects the same as if Nantz Communications had signed this Agreement as agent rather than as a principal from the beginning.  The rights granted the Company hereunder shall be used only by it and shall not, without the prior written consent of Nantz Communications or Nantz, be transferred or assigned to
+
+
+
+
+
+any other.  In the event of the merger or consolidation of the Company with any other entity, Nantz Communications shall have the right to terminate the Agreement by so notifying the Company in writing on or before sixty (60) days
+
+Ashworth/Nantz Promotion Agreement - -------------------
+
+after Nantz Communications has received notice of such merger or consolidation if and only if, by virtue of such merger or consolidation Nantz Communications or Nantz would be in default under or violating any provisions of any agreement to which he or it is subject entered into prior to June 1, 1994.
+
+ARBITRATION                                               Unless otherwise mutually agreed to in writing by the Company, Nantz Communications and Nantz, any controversy or claim arising out of or related to this Agreement, or the breach thereof, shall be settled by arbitration in accordance with the Rules of the American Arbitration Association or any successor.  Each of the Company, on the one hand, and Nantz Communications and Nantz, on the other hand, shall select one arbitrator and the two so selected shall select a third.  Failing the selection of an arbitrator by either party or by the two so selected, the claim or controversy shall be settled by the American Arbitration Association upon the application of either party.  Judgment upon any award of a majority of the arbitrators filed in a court of competent jurisdiction shall be binding.
+
+MISCELLANEOUS                                          24.  NOTICES.  Any and all notices required pursuant to this Agreement shall be      deemed given if in writing and delivered in person, sent by certified or      registered mail, return receipt requested, or set by telefax at or to the      addresses and telefax numbers set forth below or such other addresses and      telefax numbers as the parties may direct by notice given as herein      provided:
+
+Ashworth, Inc.
+
+Attention: President and Chief Executive Officer                 2791 Loker Avenue West                 Carlsbad, California 92008                 Telephone:  (619) 438-6610                 Telefax:    (619) 438-9107                   James W. Nantz III                 Nantz Communications, Inc.                 c/o International Merchandising Corporation                 22 East 71st Street                 New York, New York 10021                 Attention:  Barry Frank                 Telephone:  (212) 774-8900                 Telefax:    (212) 772-2617
+
+Ashworth/Nantz Promotion Agreement - -------------------
+
+25.  GOVERNING LAW.  This Agreement and its formation, operation and performance      shall be governed, construed, performed, and enforced in accordance with      the laws of the State of California.
+
+26.  JURISDICTION AND VENUE.  For the purposes of any dispute arising hereunder,      jurisdiction and venue shall lie in the appropriate court in California.
+
+27.  ATTORNEY FEES AND EXPENSES.  In any legal action or alternative dispute      resolution instituted to interpret or enforce the terms and/or conditions      of this Agreement, the prevailing party shall be entitled to recover      reasonable attorney fees and expenses.
+
+28.  WAIVER.  A waiver by either party of any provision of this Agreement shall      not be deemed a waiver of any other portion of this Agreement.  Failure to      require performance of any provision of this Agreement shall not be deemed      a continuing waiver of that provision or any other provision of this      Agreement.
+
+29.  SEVERABILITY.  In the event that any provision or any portion of any      provision of this Agreement shall be held invalid, illegal or      unenforceable, the remainder of this Agreement shall remain valid,      enforceable, the remainder of this Agreement shall remain valid,      enforceable, and in effect.
+
+30.  CAPTION REFERENCES.  All items headings and captions are for reference      purposes only and do not in any way modify or limit the provisions set      forth thereunder.
+
+31.  ENTIRE AGREEMENT.  This Agreement contains the entire understandings and      agreement of the parties and supersedes any prior understandings and/or      agreement of the parties.  This Agreement may not be modified or amended      without the written consent of all parties hereto.
+
+
+
+
+
+[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
+
+Ashworth/Nantz Promotion Agreement - -------------------
+
+IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date indicated below, effective the date first above mentioned.
+
+THE COMPANY:
+
+ASHWORTH, INC.                                 a Delaware corporation
+
+Date:  December 16, 1998        By: /s/ RANDALL L. HERRAL, SR.                                     ------------------------------                                     Randall L. Herrel, Sr.                                     President & Chief Executive Officer
+
+NANTZ COMMUNICATIONS, INC.
+
+Date:  December 16, 1998        By: /s/ JAMES W. NANTZ III                                     --------------------------                                     James W. Nantz III                                     President
+
+Date:  December 16, 1998            /s/ JAMES W. NANTZ III                                     --------------------------                                     James W. Nantz III

full_contract_txt/ASIANDRAGONGROUPINC_08_11_2005-EX-10.5-Reseller Agreement.txt

@@ -0,0 +1,299 @@
+Exhibit 10.5
+
+Reseller Agreement
+
+This Agreement is made and entered into by and between 695014 B.C. Ltd. dba Galaxy Telecom, having a principal office at 200 - 375 Water Street, Vancouver, British Columbia V6B 5C6 Canada ("Galaxy") and Galaxy Telnet SRL, having a principal office at Aleea Malinului, Nr. 11, Bl. D, Scara C, Apt. 43, Constanta, Judetul Constanta, Romania ("Telnet") as of the 1s t day of June, 2004.
+
+WHEREAS: Galaxy is a wholesale provider of Voice over Internet Protocol ("VoIP") telephony and related services and products. Telnet is a provider of VoIP telephony and related services and products to Subscribers, as defined hereafter. Galaxy wishes to provide to Telnet and Telnet wishes to acquire from Galaxy VOIP related services and products from time to time for the purpose of providing them to Telnet's existing and future clients. NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the Parties, the Parties covenant and agree with each other as follows: 1. DEFINITIONS AND INTERPRETATION 1.1 Definitions In this agreement unless the context otherwise requires: "Agreement" means this agreement; "Confidential Information" means all information which one of the Parties will have access to or come into possession of which is confidential and proprietary to the other Party and which is either declared to be confidential or which the receiving Party should know, acting reasonably, is confidential or proprietary in nature and includes, but is not limited to, the terms and pricing for the Products and Services, all information contained on or accessible through the Partner Portal, as defined hereafter, any information disclosed by any third party which the third party is obligated to treat as confidential or proprietary to one of the Parties hereto, trade secrets, know-how, processes, standards, product specifications, marketing plans and techniques, cost and financial pricing figures, all client or customer information (including without limitation their names, financial information, address or telephone number), all systems software applications, all software/systems source and object code, data, documentation, program files, flow charts, and all operational procedures. "Effective Date" means the date first written above; "Force Majeure" shall include but not be limited to an Act of God, strike, lockout, labour dispute, act of a public enemy, war whether declared or undeclared, blockade, revolution, riot, insurrection, civil commotion, lightning, fire storms, flood, or other natural calamities, explosion, governmental restraint or restrictions, laws, regulations, orders, proclamations of any governmental entities, judgement or orders of any court of law, embargoes, unavailability of equipment and any other cause (other than a shortage or unavailability of funds) which is not reasonably within the control of the Party whose performance under this Agreement is affected by the cause; "Partner Portal" means Galaxy's web-based VoIP subscriber, management and business administration system; "Party" means either Galaxy or Telnet as is appropriate in context and "Parties" means both or either of Galaxy and Telnet as is appropriate in context; "Product" means one of and "Products" means some or all of the VoIP related devices offered for sale by Galaxy; "Service" means one of and "Services" means some or all of the VoIP services as listed in Schedule "A" attached hereto; "Subscriber" means a client of Telnet who is a consumer of the Products or Services as provided by Galaxy and sold by Telnet. 1.2 Currency All references to currency, unless otherwise specified, are to lawful money of the United States. 1.3 Headings The division of this Agreement into articles, sections, and/or subsections and the provision of headings for all or any of them are for convenience of reference only and shall not affect the interpretation of this Agreement. 1.4 Schedules The following schedules are attached to and form part of this Agreement: Schedule "A" Services and Products and Pricing Schedule "B" Tier 1 Subscriber Support
+
+
+
+
+
+Schedule "C" Subscriber Contract Clauses Whenever any provision of any schedule to this Agreement conflicts with any provision in the body of this Agreement, the provision in the body of this Agreement shall prevail. References herein to a schedule shall mean a schedule of this Agreement. Reference in any schedule of this Agreement to an agreement shall mean this Agreement. 1.5 Usage In this Agreement, unless there is something in the subject matter or context inconsistent therewith: words importing the singular shall include the plural and vice versa; and words importing gender shall include masculine, feminine and neuter genders. 1.6 Governing Law This Agreement shall be governed by and construed in accordance with the laws of the Province of British Columbia and the federal laws of Canada applicable therein, excluding its conflict-of-laws rules. The parties expressly disclaim the application of the United Nations' Uniform Convention for the Sale of Goods convention, to this Agreement.
+
+2. RELATIONSHIP OF THE PARTIES 2.1 Non-Exclusive Reseller Subject to the terms and conditions of this Agreement, Galaxy hereby appoints Telnet as a non-exclusive authorized reseller of the Products and Services and Telnet hereby accepts the appointment. 2.2 Not a Partnership This Agreement does not and shall not be construed to create a partnership, joint venture, agency or any other business relationship which would authorize either Party to act on behalf of the other or to have any authority to create any liability or obligations on behalf of or in the name of the other. Each of the Parties is and will remain completely independent of the other. Telnet may indicate to the public that it is an authorized seller of Galaxy Services and it may advertise Products and Services under Galaxy trademarks, logos, and symbols as provided for in this Agreement, but under no circumstances shall it represent itself to be an associate, franchisee, representative, servant or agent of Galaxy.
+
+3. TELNET OBLIGATIONS 3.1 Marketing and Sales Telnet shall be responsible for promoting, marketing and selling those Products and Services it offers for sale or distribution and it shall use its reasonable best efforts to do so; Telnet may market and sell the Services as being Telnet services or as Galaxy services being provided by Telnet. 3.2 Business Expenses Telnet shall be responsible for all expenses it incurs from its business activities associated with the marketing, promotion, sale and support of the Products and Services, including, but not limited to, those expenses related to the installation and activation of Products and Services. 3.3 Pricing Structure & Levels Telnet shall, in its sole discretion, set the prices it charges for the Products and Services it sells or distributes and the manner, if any, in which it bundles or combines them. 3.4 Qualified Sales and Marketing Representatives Telnet covenants that all of its employees, agents and representatives who promote, market and sell the Products and Services will be fully qualified in and knowledgeable of the Products and Services. 3.5 Terms of Service Telnet shall include those terms set out in Schedule "C" as a term in each Subscriber agreement for Services. 3.6 Subscriber Support Telnet shall maintain a first line of response, known within the telephony industry as a "Tier 1 Subscriber help-desk and support function", as further defined in Schedule "B", as is required to maintain Subscriber satisfaction at or above industry standards. 3.7 Government Authorizations Telnet shall obtain and maintain in good standing all licenses, permits and other governmental approvals and authorizations required in connection with implementation of this Agreement and the sale of Products and Services, including without limitation, business licenses, import licenses and foreign exchange permits. Telnet shall keep Galaxy apprised of any change in the status of the licenses, permits and approvals and authorizations as are referred to in subsection 3.7(a) which may materially affect the implementation of this Agreement. 3.8 Notification of Infringement Telnet shall notify Galaxy immediately of any actual, suspected or alleged infringement of Galaxy trademarks, or copyrights that it
+
+
+
+
+
+becomes aware of.
+
+4. TELNET RECORDS 4.1 Maintain Records Telnet shall maintain complete and, to the best of its ability, accurate records on the Partner Portal (the "Records") of all Subscribers, including: (a) Name, location, contact information and date of activation; (b) Products purchased, including model and serial number and date of activation; (c) Services subscribed; including date of activation; and All service calls relating to Products or Services, showing Subscriber information, date and nature of call, Telnet response, service work performed and such other information as Galaxy may reasonably request. 4.2 Ownership and Privacy of Records Galaxy shall own the Records, but it shall use the information contained therein only as allowed by the terms and conditions and intent of this Agreement. Galaxy shall treat the Records as Confidential Information and it shall not provide to or allow access by any third party except as required or allowed by this Agreement. 4.3 911 Call Response Service Galaxy shall have the right to disclose Records to any third party providing emergency call response service to Subscribers as are required by such third party in order to provide the service.
+
+5. GALAXY RESPONSIBILITIES Services and Products Subject to the terms and conditions of this Agreement, Galaxy shall provide the Products and Services to Telnet. 5.2 Network Galaxy shall establish a Telnet account within the Partner Portal and, subject to the terms and conditions of this Agreement, it shall provide Telnet with access thereto. 5.3 Materials Galaxy shall provide Telnet with access to electronic copies of sales and technical materials, user manuals, installation manuals and brochures and catalogues relating to the Products and Services which Galaxy has electronic versions of and which it, in its absolute discretion, is of the opinion are relevant. 5.4 Supporting Information Galaxy shall make available to Telnet such technical and commercial information which Galaxy has or which comes into Galaxy's possession and which, in Galaxy's opinion, may be of assistance to Telnet in selling and supporting the Products and Services. 5.5 Tier 2 Support  Galaxy shall provide "Tier 2" technical support to Telnet which would include assistance with any technical issues related to the Services and Products that could not be resolved by Telnet's Tier 1 Subscriber support personnel.
+
+6. PRODUCTS 6.1 Approved Products Galaxy shall, at its sole discretion, determine the technical specifications and the brand and model of those devices which it will support in providing the Services and chooses to offer as Products; Telnet shall purchase from Galaxy all devices or Products used or to be used by it to enable the provisioning of the Services pursuant to this Agreement and Galaxy shall be required to support only those devices actually purchased from Galaxy by Telnet; Notwithstanding section 6.1(b), Telnet may request from Galaxy that it enable and support devices other than Products acquired by Telnet from Galaxy, and Galaxy shall not unreasonably refuse such request; and Galaxy shall have the right, at its sole discretion, to change the Products by discontinuing or adding new devices to the Products offered and by changing manufacturers, brands, models or technical or software specifications of any of them. 6.2 Pricing Prices for Products shall be as quoted at the time of order by Telnet and are subject to change at any time; Prices quoted shall be for the Products only and shall not include applicable taxes and shipping, insurance, expedition, import/export, brokerage and other fees, which shall be in addition to the quoted Product prices. 6.3 Ordering All Telnet orders of Products are subject to acceptance by Galaxy (upon acceptance, the "Order"). Galaxy shall have the right to not accept an order of Products from Telnet, in whole or in part, if Telnet is in breach of any term or condition of this Agreement;
+
+
+
+
+
+Unless specifically agreed otherwise and stated in writing, the terms of this Agreement shall supersede the terms of any Order; 6.4 Payment Telnet shall pay (the "Product Payment" ) for an Order, using a payment method acceptable to Galaxy, prior to shipment of the Order by Galaxy; If Telnet falls into arrears on its account for Services, Galaxy shall have the right to apply any Product Payment, in whole or in part, to Telnet's account for Services and any Product Payment so transferred shall be deemed to be a payment for Services, not Products, and Galaxy shall have no further obligation to deliver the Products which such funds were originally payment for. 6.5 Delivery Galaxy shall, subject to availability, use all reasonable effort to deliver the Order within a reasonable time from the date of the Order; Galaxy shall have the right to suspend or stop delivery of an Order, in whole or in part, if Telnet is in breach of any of the terms and conditions of this Agreement, and, if Galaxy elects to stop delivery pursuant to this section, it shall deem such Order to be an inventory return subject to section 6.7. 6.6 Order Substitution Subject to obtaining Telnet's approval for any price changes, Galaxy shall have the right to deliver a different Product of equal or greater technical capability in place of the Order. 6.7 Inventory Returns Galaxy may, at its sole discretion, accept the return, in whole or in part, of an Order and, if it elects to do so, Telnet shall pay a restocking fee of 25% of the original purchase price of the returned Product or Products. 6.8 Warranty Unless specifically stated otherwise, Galaxy makes no warranty or guarantee, express or implied, including any implied warranty of merchantability or fitness for a particular purpose, with regard to the Products. All warranties with regard to the Products shall be those of the original equipment manufacturer only.
+
+7. SERVICES 7.1 Available Services Listed in Schedule "A" is a list of the Services which are available to Telnet as of the Effective Date. 7.2 Change to Services Galaxy reserves the right to, at its sole discretion, to add, delete or change any of the Services from time to time. 7.3 Provision of Service Upon Telnet's activation of a Subscriber account, Galaxy shall, subject to the terms and conditions of this Agreement, provide the requested Services to Subscriber on behalf of Telnet; Subject to section 13.2, if Telnet is in breach of any of the terms and conditions of this Agreement, Galaxy shall have the right to suspend or terminate delivery of the Services, in whole or in part, to Telnet and the Subscribers. 7.4 Communication of Termination Galaxy may, at its sole and absolute discretion, provide long distance termination through one or more termination partners. Galaxy shall have the right, at its sole discretion, to reroute the communication traffic originating from Telnet or Subscribers between Galaxy's different termination partners. 7.5 411 and 911 Service Galaxy shall arrange with third parties for the provision of: 411 directory assistance service; and 911 emergency call response service, which services will be provided through Galaxy as part of the Services. 7.6 Prices The prices charged by Galaxy to Telnet for each of the Services (the "Service Prices") shall be as listed in Schedule "A"; Galaxy shall have the right, but not the obligation, to: during the term of this Agreement, adjust any of the Service Prices by an amount that is proportionate with any changes to Galaxy's direct third party costs in providing the related Services; at the time of any renewal of this Agreement, adjust the Service Prices as it, in its absolute discretion, determines provided it has given written notice to Telnet of such price changes a minimum of 60 days in advance of the renewal. Prices for long distance termination shall be as posted on the Partner Portal and Telnet understands and agrees that, other than for those destinations noted in Schedule A as being fixed in price for the term of this Agreement, such prices are variable and subject
+
+
+
+
+
+to change without notice. 7.7 Billing For Services Galaxy shall invoice Telnet once per month for the Services delivered, termination fees, 411 directory assistance and 911 emergency call service fees and any other fees or billings chargeable to Telnet; Galaxy shall deliver each invoice to Telnet's account in the Partner Portal; and Telnet shall give notice to Galaxy of all errors and inaccuracies in an invoice within 15 days of receipt by Telnet of the invoice at issue. Thereafter, Telnet will be deemed to have agreed with the accuracy of the invoice. 7.8 Payment of Services Invoice Telnet hereby covenants to pay all invoices rendered to its account by Galaxy within 15 days of the date of invoice; Interest shall accrue on overdue accounts at the rate of 1.5% per month calculated and payable from the date of invoice until the date of payment in full of the overdue amount. 7.9 Warranty Galaxy does not guarantee the integrity of data transmitted using the Products and Services or that the Products and Services will operate uninterrupted or error-free, including, without limitation, the degradation of voice transmission quality and the failure of an incoming or outgoing call, including emergency calls (911 or equivalent), to be connected or completed.
+
+8. LIMITATION OF REMEDIES AND LIABILITY 8.1 Telnet's Exclusive Remedies  Telnet's sole and exclusive remedies concerning Galaxy's performance or non-performance in any matter related to this Agreement or the provisioning of the Services or Products are limited to those expressly stated in this Agreement. 8.2 Limitation of Galaxy Liability Galaxy shall have no liability to Telnet, whether in contract, tort (including negligence), strict liability or otherwise, for any special, indirect or consequential damages or for lost profits, in any matter related to this Agreement, including but not limited to any delay or failure by Galaxy to furnish, deliver or provide Products or Services; Galaxy's liability in any matter related to Product shall be limited to the purchase price paid by Telnet for the Product with respect to which such liability relates; Galaxy's liability in any matter related to Services shall be limited to the fee paid by Telnet for the Service with respect to which the liability relates in the month or months in which the event giving rise to the liability occurred. 8.3 Liability Upon Termination of Agreement Neither Party shall be liable to the other for any damages or compensation in connection with termination of this Agreement including, without limitation, for loss of profits, loss of investment or expenditures made in reliance on this Agreement or loss of goodwill. 8.4 Force Majeure  Neither party will be liable to the other for any delay or failure to perform if that delay or failure results from a cause beyond its reasonable control. 8.5 Telnet's Indemnity  Telnet agrees to indemnify Galaxy (and any business entity controlled by it, controlling it or under common control with it) and save them harmless from any claim made against any of them, directly or indirectly, by a Subscriber or resulting from: (i) any promise or commitment that Telnet may have made purportedly on Galaxy's behalf in violation of this Agreement; or (ii) from any breach by Telnet or Telnet's employees with respect to Telnet's obligations under this Agreement. 8.6 Limitation of Privacy  The Products and Services utilize, in whole or in part, the public Internet and third party networks to transmit voice and other communications. Galaxy shall not be liable to Telnet for any loss or damages caused by or related to a lack of privacy which may be experienced as a result of use of the Products and Services.
+
+9. USE OF NAME, LOGOS, TRADEMARKS AND LICENSED MATERIALS 9.1 News Releases Neither Party will use the name of the other in any news release, public announcement, advertisement or other form of publicity, without the prior written consent of the other Party. 9.2 Ownership and Use of Galaxy Trade Marks Telnet acknowledges Galaxy's exclusive ownership of the Galaxy name and logo as well as certain other trademarks and trade names which Galaxy uses in connection with the Products and Services (the "Trademarked Material") and agrees that Telnet will not acquire any interest in any of the Trademarked Material by virtue of this Agreement or anything done pursuant to it; While this Agreement is in effect, Telnet may indicate to the public its status of being an authorized seller of the Galaxy Products
+
+
+
+
+
+and Services; Except with the prior written consent of Galaxy, Telnet will not adopt or use any of the Trademarked Material, in whole or in part, or any confusingly similar word or symbol, as part of Telnet's name or, to the extent Telnet has knowledge of such use and the power to prevent such use, allow others to use the Trademarked Material; Nothing in this Agreement contains any transfer or license to Telnet of any Trademarked Material or other proprietary rights. 9.3 Review and Approval of Uses  Galaxy shall have the right to review any use by Telnet of the Trademarked Material and to approve or disapprove, in its absolute discretion, Telnet's use of it and if Galaxy disapproves of Telnet's use of Trademarked Material, Telnet shall not use the Trademarked Material for such use. Telnet shall, at Galaxy's request, provide to Galaxy a copy of anything which Telnet is using or may use and which contains the Trademarked Material; Telnet must adhere to Galaxy's standards of use in respect to any of the Trademarked Material. Among other things, Telnet will be required to indicate explicitly Galaxy's ownership of the name or mark. 9.4 No Removal of Logos, Trademarks & Notices Unless Telnet first obtains express written consent from Galaxy, Telnet will not remove or alter any patent numbers, trade names, trademarks, copyright or other proprietary notices, serial numbers, labels, tags or other identifying marks, symbols or legends affixed to or included with any Product or portion thereof, whether on packaging, media, presentations or otherwise, or any related materials provided to Telnet by Galaxy.
+
+10. TERM AND TERMINATION 10.1 Term of the Agreement The initial term of this Agreement will be for two (2) year(s) commencing on the Effective Date. Thereafter, this agreement will renew automatically from year to year unless cancelled in writing by either Party giving the other written notice of such cancellation a minimum of 60 days before the end of the then current term. 10.2 Termination for Default Subject to section 13.2, either Party may terminate this Agreement, effective immediately, if the other commits a material breach of it, commits any material fraudulent act in performing any of its obligations or makes any material misrepresentation to the other or commits an act of malfeasance or misfeasance in the performance of its or his duties or is unable or unwilling to perform its obligations and duties under this Agreement which circumstances will include, but not be limited to: If a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any of its assets; or If it files for relief under any applicable bankruptcy laws. 10.3 Obligations Upon Termination Upon expiration or termination of this Agreement: (a) Telnet shall immediately: stop representing itself as a seller of the Products and Services and marketing and selling the Products and Services; discontinue using the Trademarked Materials; and return to Galaxy all Galaxy sales and technical materials and other Galaxy literature; Galaxy shall deliver pending Orders per the terms of such Orders; and all amounts due from each party to the other shall become immediately due and payable. 10.4 Inventory Returns Upon termination of this Agreement, Galaxy may, at its sole discretion accept inventory returns of Products. If Galaxy accepts inventory returns, Telnet shall pay a restocking fee of twenty-five percent (25%) of the original billing amount for the returned inventory. 10.5 Subscribers If this Agreement is terminated pursuant to section 10.2, Galaxy shall have the right to contact Subscribers directly and solicit such Subscribers to become subscribers of Galaxy, an affiliate thereof or of another client of Galaxy's.
+
+11. CONFIDENTIALITY 11.1 Confidential Information Each of the Parties acknowledges that in the course of their relationship pursuant to this Agreement, each (the "Receiving Party") will have access to or come into possession of Confidential Information of the other Party (the "Disclosing Party") and that the disclosure of such Confidential Information to third parties or to the general public would be detrimental to the best interests and business of the Disclosing Party.
+
+
+
+
+
+11.2 Exceptions to Confidential Information Notwithstanding the definition of Confidential Information and the provisions of section 11.1, "Confidential Information" does not include information or data, which the Receiving Party can prove, on a balance of probabilities, is or was: publicly known at the time of disclosure; already known by the Receiving Party at the time it receives the information; provided to the Receiving Party by a third party that is not under obligation to keep such information confidential; or independently developed by the Receiving Party without use of any Confidential Information of the Disclosing Party. 11.3 Limitations on Use The Receiving Party will not, during the term of this Agreement or at any time thereafter: disclose any Confidential Information to any person; use or exploit, directly or indirectly, the Confidential Information for any purpose other than the proper purposes of the Disclosing Party; or disclose for any purpose, other than those of the Disclosing Party, the private affairs of the Disclosing Party or any other information which the Receiving Party may acquire during the term of the Agreement with respect to the business and affairs of the Disclosing Party, whether acquired in the course of carrying out the Agreement or incidentally. 11.4 Required Disclosure Notwithstanding the foregoing, the Receiving Party will be entitled to disclose Confidential Information if required by law provided that the Receiving Party will promptly notify the Disclosing Party, consult with the Disclosing Party and cooperate with the Disclosing Party in any attempt to enjoin, to resist or narrow such disclosure or to obtain an order or other assurance that such information will be accorded confidential treatment. 11.5 Survival of Confidentiality All covenants of confidentiality herein shall survive the term of this agreement by three (3) additional years counting from the date of termination of this Agreement.
+
+12. EXCLUSION FROM TERRITORIES 12.1 Right to Exclude Subject to section 12.2 Galaxy reserves the right to grant to any other person an exclusive territory (the "Territory") for the marketing, sales and distribution of the Services and, from that date which is 30 days after the date upon which Galaxy delivers notice in writing to Telnet of such grant of exclusivity over a Territory (the "Exclusion Date"), Telnet shall not sell, distribute or market the Services within the Territory. However, Telnet shall be entitled to continue to sell the Services to any Subscriber resident within the Territory who became a Subscriber prior to the Exclusion Date. 12.2 Territories From Which Telnet May Not Be Excluded During the term of this Agreement, Telnet may not be excluded pursuant to section 12.1, from the following areas: (a) Romania.
+
+13. MISCELLANEOUS 13.1 No Waiver The failure by either Party to enforce or take advantage of any of the provisions of this Agreement shall not constitute nor be construed as a waiver of such provisions or of the right subsequently to enforce or take advantage of each and every such provision. 13.2 Default If either of the Parties should be in default (the "Defaulting Party") of any obligation or requirement under this Agreement, the Party affected may give written notice to the Defaulting Party specifying the default and will give the Defaulting Party a grace period of 30 days (the "Grace Period") to cure such default or to take such reasonable steps to cure without undue delay such default prior to seeking any remedy it may have on account of such default. The Defaulting Party shall lose no rights under this Agreement if it cures the stated default within the Grace Period. 13.3 Disputes Galaxy and Telnet will attempt to settle any claim or controversy relating to this Agreement through consultation and negotiation in good faith and a spirit of mutual cooperation. If those attempts fail, then a mutually acceptable mediator, chosen by Galaxy and Telnet within forty-five (45) days after written notice from one of the parties to the other, demanding mediation, will mediate the dispute. Neither party may unreasonably withhold consent to the selection of a mediator. Galaxy and Telnet will share the costs of the mediation equally and each shall bear its own costs. Any dispute which the parties cannot resolve between themselves through negotiation or mediation within ninety (90) days after the date of the initial demand for mediation may then be submitted to the courts for final resolution. Nothing in this paragraph will prevent either party from resorting to judicial proceedings if:
+
+
+
+
+
+good faith efforts to resolve the dispute under these procedures have been unsuccessful; or interim relief from a court is necessary to prevent serious and irreparable injury to one party or to others. 13.4 Notices Any formal notice between the Parties hereto will be in writing and will be either personally delivered or sent by facsimile or by registered mail to the appropriate party or parties at the address noted for that party on the first page of this Agreement, or such other address as may be designated by a party in a written notice sent to the other parties in accordance with this paragraph. Any notice or other communication will be effective seven calendar days from the day that it was sent, or if given by personal delivery or facsimile, the day following its receipt. 13.5 Assignment Neither party may assign this Agreement without the prior written consent of the other. However, Telnet agrees that Galaxy may assign this entire Agreement to an affiliate or sell, transfer or assign any account receivable under it to a financing institution to enforce the Galaxy's rights to receive payment from Telnet. This Agreement will be binding upon any authorized assignee or successor of Telnet or Galaxy. 13.6 Compliance with Law Each of the Parties agrees to comply with all applicable laws, rules and regulations of the jurisdictions in which it operates and to do nothing to cause the other to violate the law, rules and regulations of those jurisdictions. If this Agreement or the performance hereof, is determined to be contrary of the laws, rules or regulations of the Territory or of Canada, this Agreement will automatically terminate subject the terms of Termination outlined in this Agreement.
+
+14. GENERAL 14.1 Entire Agreement  This Agreement and all documents contemplated by or delivered under or in connection with this Agreement constitute the entire agreement between the Parties with respect to the subject matter of this Agreement, and supersede all prior agreements, negotiations, discussions, undertakings, representations, warranties and understandings, whether written or oral, express or implied, statutory or otherwise.  14.2 Amendment No amendment, supplement, restatement or termination of any provision of this Agreement is binding upon the Parties hereto unless it is in writing and signed by an authorized representative of each Party to this Agreement at the time of the amendment, supplement, restatement or termination.  14.3 Severability If any provision or any portion of any provision of this Agreement shall be held unlawful or unenforceable, the balance of such provision and all other provisions hereof shall nonetheless in all respects remain binding and effective and shall be construed in full force and effect to the extent lawfully permissible. 14.4 Time of Essence Time is of the essence in the performance of the terms and conditions of this Agreement. 14.5 Enurement This Agreement enures to the benefit of and binds the Parties and their respective heirs, executors, administrators, successors and permitted assigns. 14.6 Counterpart Signature and Facsimile Delivery This Agreement may be executed in two or more counterparts and may be delivered by facsimile, each of which will be deemed to be an original and all of which will constitute one agreement, effective as of the reference date given above.
+
+IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives as of the date first written above:
+
+695014 B.C. LTD.   GALAXY TELNET SRL
+
+Per: "Peter Wiggans"   Per: "Michael Stunden"
+
+  Authorized Signatory     Authorized Signatory
+
+  Peter Wiggans     Michael Stunden
+
+  (Print name)     (Print name)
+
+Title: Chief Operating Officer   Title: Chief Financial Officer
+
+
+
+
+
+
+
+SCHEDULE "A"
+
+
+
+
+
+SCHEDULE "A" PARTNER PRICING Galaxy Telnet
+
+Table 1
+
+  Business Partner Pricing
+
+VoIP Services One-Time Fee Monthly Service Fee
+
+VoIP Connectivity (per port charge)
+
+Includes: Unlimited VoIP calls, VoIP Caller ID, Call waiting, Basic voicemail
+
+$9.95 $5.95
+
+VoIP Connectivity - Commpanion Galaxy Telecom Brand
+
+With i-box subscription
+
+Includes: Unlimited VoIP calls, VoIP Caller ID, Call waiting, Basic voicemail, 3-way Calling, Call forwarding, Do not disturb, Call hold, Auto answer, Call ignore, Call "go to voicemail", Redial, Mute
+
+$19.95 $1.95
+
+VoIP Connectivity - i-box Commpanion Galaxy Telecom Brand
+
+Stand alone subscription
+
+Includes: Unlimited VoIP calls, VoIP Caller ID, Call waiting, Basic voicemail, 3-way Calling, Call forwarding, Do not disturb, Call hold, Auto answer, Call ignore, Call "go to voicemail", Redial, Mute
+
+$19.95 $5.95
+
+VoIP to VoIP Termination included included
+
+VoIP to PSTN Termination (Long distance) included See Current Published Rates
+
+Basic Voicemail Service included included
+
+i-box CommCenter - Enhanced Voicemail
+
+Includes: Web interface, call forwarding, do not disturb, speed dial, call logs, email message notify management, time zone control, profile management, greeting management and password control
+
+included $2.00
+
+Services
+
+Partner Portal included included
+
+Partner Portal Back-Office (API) included included
+
+Special Accounts
+
+Demonstration Accounts See note 3 free free
+
+
+
+
+
+Employee only Accounts See note 3 free $1.95
+
+Promotion Accounts
+
+TBD Special Special
+
+Phone Numbers
+
+Direct Inward Dial (DID) - Canada $250 one time fee per order
+
+see note 1
+
+$3.00
+
+Direct Inward Dial (DID) - USA $250 one time fee per order
+
+see note 1
+
+$2.50
+
+Toll Free Dial (1-8XX) - Canada/USA $2.50 $2.50 plus usage ($.05 avg.)
+
+Use existing phone number see note 2 $10.00 $3.00
+
+Bundles & Calling Zones
+
+Monthly 250 North America minute bundle n/a $2.95
+
+Monthly 500 North America minute bundle n/a $5.95
+
+Monthly 750 North America minute bundle n/a $8.95
+
+Monthly 1000 North America minute bundle n/a $11.95
+
+Local Calling Zone
+
+On-net locations only
+
+Includes: 750 minutes inbound and outbound local calls. Requires DID. Subscriber must reside in Local Calling area.
+
+included $6.95
+
+Virtual Calling Zone
+
+On-net locations only
+
+Includes: 750 minutes inbound calls from virtual calling area. Requires DID Applies to North America-based subscribers only.
+
+See note 4
+
+included $6.95
+
+Custom Calling Zone
+
+Off-net locations
+
+Custom Quote Custom Quote
+
+Note 1 Not available in all areas, see Table 3, 25 DID number block minimum Note 2 Not available in all areas see Table 3 Note 3 Quantity to be agreed between parties, Long distance charges apply Note 4 Unlimited calling FROM Virtual Calling Zone only. Long distance charges apply when calling to VCZ.
+
+
+
+
+
+
+
+
+
+Table 2 i-box Commpanion Telecom Branded Version
+
+Licenses i-box CommPanion Additional 500 Licenses $7,000 $14.00 ea 1,350 Licenses $14,000 $10.50 ea 2,500 Licenses $21,000 $8.40 ea 3,650 Licenses $28,000 $7.70 ea 5,000 Licenses $35,000 $7.00 ea 6,700 Licenses $42,000 $6.30 ea 8,750 Licenses $49,000 $5.60 ea 11,500 Licenses $56,000 $4.90 ea 15,000 Licenses $63,000 $4.20 ea 20,000 Licenses $70,000 $3.50 ea
+
+Note 1 Co-Branding one time charge $1,350.00
+
+
+
+
+
+Table 3 Galaxy Telecom On-net locations
+
+Canada Province City Alberta Calgary Edmonton British Columbia Vancouver Victoria Kelowna Whistler Abbotsford Manitoba Winnipeg Nova Scotia Halifax Ontario Toronto Ottawa Hamilton Windsor Kitchener London Guelph Kingston Oshawa St. Catherines Waterloo Hespeler Quebec Montreal Quebec City Saskatchewan Regina
+
+USA State City Alabama Birmingham Arizona Phoenix California Los Angeles San Diego San Francisco Colorado Denver Florida Gainesville Miami Orlando Tampa Georgia Atlanta Illinois Chicago Indiana Indianapolis Maryland Baltimore Michigan Detroit Minnesota Minneapolis Missouri Kansas City St Louis New York New York City North Carolina Charlotte Fayetteville Greensboro Raleigh Ohio Cincinnati Cleveland Dayton
+
+
+
+
+
+Oregon Portland Pennsylvania Philadelphia Tennessee Nashville Texas Dallas Austin Houston San Antonio Utah Salt lake City Virginia Culpepper Washington Seattle Washington DC Washington DC
+
+
+
+
+
+SCHEDULE "B" TIER 1 SUBSCRIBER SUPPORT
+
+Under this Agreement the Telnet is required to maintain Tier 1 Subscriber Support (the "Subscriber Support") functioning as initial response for any direct Subscriber inquiries. Galaxy will provide Tier 2 technical support for technical inquiries from qualified resellers only. The Criteria for the Subscriber Support are as follows: Subscriber Satisfaction Telnet will use its best efforts to ensure that Subscribers achieve the highest levels of satisfaction with the Services delivered by Telnet. Telnet shall notify Galaxy immediately of any complaints by Subscribers, whether they involve sales, Service, Performance or other issues. Galaxy shall use Subscriber satisfaction surveys, field Service reports, and random audits, as it deems necessary to determine if the appropriate levels of Subscriber satisfaction are achieved. If Galaxy determines that an inappropriate level of Subscriber dissatisfaction exists, Galaxy and Telnet shall put in place an action plan as approved by Galaxy to continually improve and maintain Subscriber satisfaction levels. Staff Subscriber Support shall be staffed by fully qualified and trained personnel as per the following criteria: 1. Training Telnet shall maintain technically qualified Service personnel and use its best efforts to service Telnet subscribers in the Territory. 2. Technical Team (a) Language Capabilities Telnet shall employ at least one lead Service engineer who is fluent in English who will be responsible for communicating with Galaxy's technical staff and who can accurately translate all technical documentation from English. Service Staff Upon execution of this Agreement and annually thereafter, Telnet shall furnish Galaxy with a list of its Service management and other technical staff qualified to support Galaxy Services. (c) Help Desk Telnet shall ensure that the personnel staffing the Subscriber help desk, as set out in section 3.6, shall have a sufficient working knowledge of: networking in a TCP/IP WAN/LAN environment; configuring and maintaining network equipment; relevant operating systems (Macintosh, Windows, Linux); and both written and spoken English,. to be able to provide effective help to Subscribers, communicate and work with Galaxy's Tier 2 help desk to address those Subscriber issues which Telnet's help desk are unable to resolve and to communicate and work with Galaxy with regard to technical issues.
+
+SCHEDULE "C"
+
+
+
+
+
+SCHEDULE "C" SUBSCRIBER CONTRACT CLAUSES
+
+Telnet shall include as a term of any agreement between itself and a Subscriber with respect to any of the Services, the relevant clauses of the following: General
+
+The Subscriber will not use the Service for any purpose that is unlawful, abusive, intrusive on another's privacy, harassing, libellous, defamatory, threatening or hateful, or in any other way that would violate any applicable governmental law.
+
+Telnet offers the Service internationally. While the Service may be used to make and receive international calls, we do not represent that the use of the Service is legally appropriate in locations outside of Canada and the United States. If the Subscriber chooses to use the Service from or to a location outside of Canada and the United States, the Subscriber is responsible for compliance with any and all governing foreign and local laws.
+
+The Subscriber may not reverse engineer, distribute, publish, display, modify or in any way exploit the configuration parameters Telnet provides as a means to access the Service.
+
+The Subscriber acknowledges that any devices and embedded software or firmware ("Products") furnished by Telnet are exclusively for use with Telnet's Service.
+
+Residential Use of Service
+
+If you have subscribed to Residential Services, the Service is provided to you as a residential user, for your personal, residential, non-business and non-professional use.  This means that you are not using the service for any commercial or governmental activities, profit-making or non-profit, including but not limited to business, sales, telecommuting, telemarketing, autodialing, continuous or extensive call forwarding, fax broadcast, fax blasting or any other activity that would be inconsistent with normal residential usage patterns. Telnet reserves the right to immediately terminate or modify the service, if Telnet determines, in its sole discretion, that the subscriber's service is being used for any of the aforementioned activities.
+
+The Service is offered on a monthly basis to the Subscriber. The monthly Service term begins on the date that Service is activated for the subscriber. Full monthly terms will renew automatically unless Telnet is otherwise notified of the intent to cancel the Service. Upon cancellation, the Subscriber will be responsible for charges for the full term of the then current billing period and any unbilled charges.
+
+Small Business Use of Service
+
+If you have subscribed to Small Business Services, the Service is provided to you as a small business user. You agree not to use the Service for auto-dialling, continuous or extensive call forwarding, telemarketing or fax broadcasting. Telnet reserves the right to immediately terminate or modify the service, if Telnet determines, in its sole discretion, that the subscriber's service is being used for any of the aforementioned activities.
+
+The Service is offered on a monthly basis to the Subscriber. The monthly Service term begins on the date that subscriber requests activation of the Service. Full monthly terms will renew automatically unless the Telnet and Galaxy is otherwise notified of the intent to cancel the Service. Upon cancellation, the Subscriber will be responsible for charges for the then current full monthly term and any unbilled charges
+
+Short Form Emergency Services, E911 and 911
+
+The Service presently does not support 911, E911 or any other type of emergency Services; that calls to "9-1-1" cannot be connected; and that alternative arrangements need to be made to contact emergency Services in situations where emergency numbers would have to be dialled.
+
+Theft
+
+The Subscriber is responsible for cancelling the Service if Subscriber believes that the associated Products have been lost or stolen, or if the Subscriber becomes aware that the Service provided is being used or misused without Subscribers consent. Subscriber is liable for all charges accruing to Subscribers account for the Service until Subscriber cancels the Service. Service Termination The Provider reserves the right to terminate the Service at any time with or without notice and for any reason. The subscriber agrees that the provider shall not be liable to the subscriber or to any third party for any modification, suspension or discontinuance of the Service. Privacy Personal data and certain other information submitted by the subscriber is subject to our Privacy Policy. Voice over IP
+
+
+
+
+
+communications are transmitted over public networks including the Internet. The subscriber acknowledges that the provider is not liable for any loss of privacy arising out of use of the Service.

full_contract_txt/ASPIRITYHOLDINGSLLC_05_07_2012-EX-10.6-OUTSOURCING AGREEMENT.txt

@@ -0,0 +1,211 @@
+Exhibit 10.6
+
+      OUTSOURCING AGREEMENT        dated as of , 2012        TWIN CITIES POWER HOLDINGS, LLC        and        REDWATER LLC
+
+      $50,000,000.00        Renewable Unsecured Subordinated Notes
+
+
+
+
+
+     TABLE OF CONTENTS                                                                                                               ARTICLE I DEFINITIONS    1            Section 1.01 Defined Terms    1
+
+
+
+
+
+Section 1.02 Accounting Terms    4            ARTICLE II APPOINTMENT OF THE AGENT AND RELATED AGREEMENTS    5            Section 2.01 Appointment; Exclusivity    5   Section 2.02 Scope of Agency    5   Section 2.03 Compensation to the Contractor    6   Section 2.04 Brokers and Dealers    8   Section 2.05 The Contractor's Unrelated Activities    8   Section 2.06 Best Efforts; Independent Contractor    8   Section 2.07 Issuance and Payment    8            ARTICLE III SERVICES; STANDARD OF CARE    8            Section 3.01 Services for the Notes    8   Section 3.02 Maintenance of Files and Records    11   Section 3.03 Monthly Reports to the Company    12            ARTICLE IV REPRESENTATIONS AND COVENANTS OF THE COMPANY    13            Section 4.01 Representations, Warranties and Agreements of the Company    13   Section 4.02 Covenants of the Company    20            ARTICLE V REPRESENTATIONS AND COVENANTS OF THE AGENT; CONDITIONS    22            Section 5.01 Representations and Warranties of the Contractor    22   Section 5.02 Covenants of the Contractor    24            ARTICLE VI CONDITIONS    25            Section 6.01 Conditions of the Contractor's Obligations    25   Section 6.02 Conditions of the Company's Obligations    31            ARTICLE VII INDEMNIFICATION AND CONTRIBUTION    31
+
+
+
+
+
+
+
+    Section 7.01 The Company's Indemnification of the Contractor    31   Section 7.02 The Contractor's Indemnification of the Company    32   Section 7.08 Intellectual Property Infringement    35   Section 7.09 Confidentiality    35            ARTICLE VIII TERM AND TERMINATION    36            Section 8.01 Effective Date of this Agreement    36   Section 8.02 Termination Prior to Initial Closing Date    36   Section 8.03 Notice of Termination    37   Section 8.04 Termination After Initial Closing Date    37   Section 8.05 Termination Without Termination of Offering    38            ARTICLE IX MISCELLANEOUS    38
+
+
+
+
+
+
+
+   ii
+
+                              Section 9.01 Survival    38   Section 9.02 Notices    38   Section 9.03 Successors and Assigns; Transfer    39   Section 9.04 Cumulative Remedies    39   Section 9.05 Attorneys' Fees    39   Section 9.06 Entire Agreement    39   Section 9.07 Choice of Law; Venue    39   Section 9.08 Rights to Investor Lists    39   Section 9.09 Waiver; Subsequent Modification    40   Section 9.10 Severability    40   Section 9.11 Joint Preparation    40   Section 9.12 Captions    40   Section 9.13 Counterparts    40   Section 9.14 Third Party Contractors    40
+
+
+
+
+
+     OUTSOURCING AGREEMENT     This OUTSOURCING AGREEMENT is entered into as of this  day of , 2012 by and between Twin Cities Power Holdings, LLC, a  Minnesota limited liability company (the "Company"), and Redwater LLC, a Minnesota limited liability company (the "Contractor").     RECITALS     WHEREAS, the Company has registered for public offer and sale an aggregate principal amount of $50,000,000.00 of renewable,  unsecured, subordinated notes of the Company; and     WHEREAS, subject to the termination rights set forth herein, the Company desires to retain the Contractor to perform certain ministerial  tasks on behalf of the Company, and Contractor desires to accept such duties, all as provided for by the terms of this Agreement.     NOW, THEREFORE, in consideration of the above and for other good and valuable consideration, receipt of which is acknowledged, and  in consideration of the mutual promises, covenants, representations and warranties hereinafter set forth, the parties hereto agree as follows:     ARTICLE I  DEFINITIONS     Section 1.01 Defined Terms. Whenever used in this Agreement, the following terms have the respective meanings set forth below. The  definitions of such terms are applicable to the singular as well as to the plural forms of such terms.     Accepted Note Practices. As applicable to the context in which this term is used, those procedures and practices with respect  to the servicing and administration of the Notes that satisfy the following: (i) the use of reasonable care; (ii) compliance with  all Governmental Rules; (iii) compliance with the provisions of this Agreement and the Indenture; and (iv) give due  consideration to the accepted standards of practice of prudent servicing firms that service or administer comparable programs  for publicly offered notes or securities and the reliance of the Company on the Contractor for the servicing and administration  of the Renewable Note Program.     Contractor. Redwater LLC, a Minnesota limited liability company, or its successors in interest or assigns, if approved by the  Company as provided in Sections 5.02(c) and 9.03, below.     Agreement. This Outsourcing Agreement, including any exhibits or attachments hereto, as originally executed, and as  amended or supplemented from time to time in accordance with the terms hereof.     Business Day. Any day other than (a) a Saturday or Sunday or (b) another day on which banking institutions in the the State  of Minnesota are authorized or obligated by law, executive order, or governmental decree to be closed.
+
+th
+
+
+
+
+
+     Commission or SEC. The Securities and Exchange Commission.     Company. Twin Cities Power Generation, or its successors or assigns, if approved by Contractor as provided in Section 9.03,  below.     Due Period. The monthly, quarterly, semi-annual, or annual periods, or the full term of the Note if interest is due at maturity, for  which scheduled payments of interest will be paid on any Note.     Exchange Act. The Securities Exchange Act of 1934, as amended, and as hereafter amended, and the rules and regulations  thereunder.     Governmental Rules. Any law, rule, regulation, ordinance, order, code, interpretation, judgment, decree, policy, decision or  guideline of any governmental agency, court or authority.     Holder. The registered owner of any Note as it appears on the records of the Registrar, including any purchaser or any  subsequent transferee or other holder thereof.     Incorporated Documents. All documents that, on or at any time after the effective date of the Registration Statement, are  incorporated by reference therein, in the Prospectus, or in any amendment or supplement thereto.     Indenture. That certain Indenture dated on or about , 2012, by and between the Company and the Trustee with respect to the  Notes as the same may be amended or supplemented in accordance with its terms, and including a supplement dated , 2012.     Investor. Any person who purchases Notes or who contacts the Contractor expressing an interest in purchasing the Notes or  requesting information concerning the Notes.     Material Agreement. With respect to a person, any agreement, contract, joint venture, lease, commitment, guaranty or other  contractual arrangement or any bond, debenture, indenture, mortgage, deed of trust, loan or security agreement, note,  instrument or other evidence of indebtedness, which in the case of any of the foregoing is material to the business, assets,  operations, condition or prospects, financial or otherwise, of such person or which is material to the ability of such person to  perform its obligations under this Agreement.     FINRA. Financial Industry Regulatory Authority.     Note Confirmation. With respect to the issuance and ownership of the Notes in book-entry form, an appropriate written  confirmation of the issuance and ownership or transfer of ownership of a Note to a Holder, the format of which shall comply  with the provisions of the Indenture.     2
+
+
+
+
+
+     Note Portfolio. The aggregate of individual Notes, as it exists from time to time, which, unless the context otherwise requires or  provides, determined by the principal balances of the outstanding Notes.     Notes. The renewable, unsecured, subordinated notes of the Company that are being offered and sold pursuant to the  Registration Statement and that have an aggregate principal amount up to $50,000,000 and such other terms as described in  the Prospectus, and any additional principal amount of the same or similar notes as may be registered from time to time  pursuant to the Registration Statement.     Offering. The offer and sale of the Notes in accordance with the terms and subject to the conditions set forth in the  Registration Statement.     Paying Agent. Bank, National Association or its successors or assigns, or such other paying agent with respect to the Notes  as may be subsequently appointed by the Company pursuant to the Indenture.     Paying Agent Agreement. That certain agreement by and between the Company and the Paying Agent relating to the  Company's engagement of the Paying Agent to act as the paying agent for the Notes.     Paying Agent Fees. All fees and expenses payable to the Paying Agent in accordance with the Paying Agent Agreement.     Proprietary Rights. All rights worldwide in and to copyrights, rights to register copyrights, trade secrets, inventions, patents,  patent rights, trademarks, trademark rights, confidential and proprietary information protected under contract or otherwise  under law, and other similar rights or interests in intellectual or industrial property.     Prospectus. The prospectus included in the Registration Statement at the time it was declared effective by the Commission, as  supplemented by all prospectus supplements (including interest rate supplements) related to the Notes that are filed with the  Commission pursuant to Rules 424(b) or (c) under the Securities Act. References to the Prospectus shall be deemed to refer to  and include the Incorporated Documents to the extent incorporated by reference therein.     Redemption Payment. The payment of principal plus any accrued and unpaid interest that is being made at the discretion of  the Company in accordance with the Indenture.     Registration Statement. That certain Registration Statement on Form S-1 (File No. - ) of the Company with respect to the Notes  filed with the Securities and Exchange Commission under the Securities Act on or about , 2012, as amended and declared  effective by the Commission, including the respective copies thereof filed with the Commission. References to the     3
+
+
+
+
+
+     Registration Statement shall be deemed to refer to and include the Incorporated Documents to the extent incorporated by  reference therein.     Renewable Note Program. The marketing, administration, customer service and investor relations, registration of ownership,  reporting, payment, repurchase, redemption, renewal and related activities associated with the Notes.     Repurchase Payment. The payment of principal plus any accrued and unpaid interest, less any penalties upon the repurchase  of any Note, that is being made at the request of the Holder in accordance with the Indenture.     Scheduled Payment. For any Due Period and any Note, the amount of interest and/or principal indicated in such Note as  required to be paid by the Company under such Note for the Due Period and giving effect to any rescheduling or reduction of  payments in any insolvency or similar proceeding and any portion thereof.     Securities Act. The Securities Act of 1933, as amended, and as hereafter amended, and the rules and regulations thereunder.     Subscription Agreement. A subscription agreement entered into by a Person under which such Person has committed to  purchase certain Notes as identified thereby, in such form and substance as mutually agreed by the parties and as filed as an  exhibit to the Registration Statement.     Trust Account. The trust account established by the Trustee pursuant to the Indenture.     Trust Indenture Act. The Trust Indenture Act of 1939, as amended, and as hereafter amended, and the rules and regulations  thereunder.     Trustee. Bank, National Association, or its successors or assigns, or any replacement Trustee under the terms of the  Indenture.     Trustee's Fees. All fees and expenses payable to the Trustee in accordance with the Indenture.     Section 1.02 Accounting Terms. Unless otherwise specified in this Agreement, all accounting terms used in this Agreement shall be  interpreted, all accounting determinations under this Agreement shall be made, and all financial statements required to be delivered by any person  pursuant to this Agreement shall be prepared, in accordance with U.S. generally accepted accounting principles, as in effect from time to time and  as applied on a consistent basis. To the extent such principles do not apply to certain reports or accounting practices of the Contractor, the parties  will mutually agree on the accounting practices and assumptions.     4
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+   ARTICLE II  RETENTION OF THE CONTRACTOR AND RELATED AGREEMENTS     Section 2.01 Retention.  On the basis of the representations, warranties and agreements herein contained, and subject to the terms,  conditions and covenants set forth herein during the term of this Agreement, the Company retains the Contractor to perform the tasks specified  herein on behalf of the Company related to servicing of the Notes, in each case, under the Renewable Note Program upon the terms and conditions  set forth herein, including, without limitation, compliance and conformity with Accepted Note Practices and Governmental Rules, and the  Contractor agrees to use its best efforts perform such tasks until the later of the termination of the Offering or the sale of all of the Notes, or until  the termination of this Agreement, if earlier. In connection with the servicing of the Renewable Note Program, the Contractor will carry out the  duties provided for herein.     Section 2.02 Scope of Duties. In the performance of its duties hereunder, the Contractor shall have only such power and authority to take  action for purposes of servicing the Notes, under the Renewable Note Program that the Company, in its discretion, deems necessary or  appropriate, subject in all respects to compliance and conformity with Accepted Note Practices and Governmental Rules. Initial instructions of the  Company to the Contractor are set forth in Exhibit B to this Agreement, which Company may, in its discretion, amend and supplement from time to  time. In the performance of its duties hereunder, the Contractor shall (i) act as the agent of the Company in connection with the Renewable Note  Program; (ii) promptly forward to the Company all Subscription Agreements, notices or other documents received by it in connection with the  Renewable Note Program for the sole and exclusive use and benefit of the Company; and (iii) make dispositions of the items in clause (ii) only in  accordance with this Agreement or at the written direction of the Company. Except as set forth in this Agreement with respect to the Renewable  Note Program, the Contractor shall have no authority, express or implied, to act in any manner or by any means for or on behalf of the Company.     Section 2.03 Compensation to the Contractor.     (a) The Contractor's Fees. In consideration of the agreement of the Contractor to provide its services as set forth in this  Agreement, the Company will pay the Contractor the following amounts:     (i) a monthly service fee of $7.50 per note based on the maximum number of notes outstanding during the  month, subject to a monthly minimum of $2,500;     (ii) a fee for media services further described in Exhibit A equal to the 15% gross/net differential or the fee  equivalent thereof;     (iii) a fulfillment fee of $2.00 per investment kit mailed;     (iv) a fulfillment fee of $1.00 per address for each bonus offer or marketing postcard mailed, subject to a $10,000  maximum per project.     5
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+     (b) The Contractor's Expenses. Except as otherwise provided in this Agreement, each party shall bear all of its own expenses.  To the extent that the Company agrees herein to pay specified offering-related expenses such as all marketing and advertising costs,  the Company will pay or cause to be paid such expenses whether incurred prior or subsequent to the date of this Agreement     (c) Payment of Fees. On the first Business Day of each month, or as soon thereafter as practicable, the Contractor shall provide  the Company with a written invoice for the previous month's fees and expenses that are payable with respect to Notes issued up to the  last day of such month.. Such fees and expenses will be due and payable by the later of the fifteenth (15 ) day of every month or fifteen  (15) days after the date such invoice is received.     Section 2.04 Brokers and Dealers. At the discretion of the Company, the Company may, at no additional obligation or expense to the  Contractor, use the services of brokers or dealers who are members in good standing of FINRA in connection with the offer and sale of the Notes.  The Company may enter into agreements with any such broker or dealer to act as its agents for the sale of the Notes and shall be solely  responsible for the payment of any portion of the Contractor's compensation hereunder to such broker or dealer. The Contractor's administrative  services will apply to all notes sold by brokers or dealers and the Company will compensate the Contractor for such services in accordance with  Section 2.03.     Section 2.05 The Contractor's Unrelated Activities. The Company agrees that the Contractor may service renewable note programs for  other issuers during the course of the Offering, but such activities shall not prevent the Contractor from promptly and efficiently performing its  duties hereunder. The Contractor (and the Agency as defined in Section 3.01(b) below) may direct other issuers to advertise the securities of other  issuers on websites, in print, by radio, or by any other means and at such times as they may determine; provided, however, that any such  advertising which refers to the Notes shall not refer to, mention, or advertise any securities or notes of any other issuer, nor include any links to  any other issuer, renewable note program or offering. The Contractor shall have the right to advertise or otherwise disclose to unrelated  prospective issuers, at its own expense, its relationship with the Company, the services it provides in connection with the Notes and the amount of  money that it raised through the Offering and the performance of the Offering, subject to the Company's consent, which shall not be unreasonably  withheld.     Section 2.06 Independent Contractor. The Contractor shall have no obligation to purchase Notes for its own account. During the term of  this Agreement, all actions taken by the Contractor pursuant to this Agreement shall be in the capacity of an independent contractor, and in no  event shall the Contractor have any obligations under the Notes.     Section 2.07 Issuance and Payment. The Notes shall be issued pursuant to the Indenture and all Scheduled Payments, Redemption  Payments and Repurchase Payments shall be made by automated clearing house (i.e., ACH) remittance from the Trust Account by the Paying  Agent in accordance with the Paying Agent Agreement and the Indenture.     6
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+     ARTICLE III  SERVICES; STANDARD OF CARE     Section 3.01 Services for the Notes. The services to be provided to the Company by the Contractor pursuant to and during the term of  this Agreement shall include the following:     (a) Marketing and Advertising. During the term of this Agreement, the Contractor shall develop and execute a direct response  marketing strategy for the Notes designed to meet the Company's capital goals in a timely manner, which shall be subject to the prior  approval of the Company. The Contractor shall also oversee designing and printing all marketing materials (subject to the prior  approval of the Company), in accordance with the Securities Act, including the applicable rules and regulations and any other  requirements of the SEC and any other Governmental Rules. The Contractor will provide the Company with media planning, media  buying, media production and media placement services related to the Offering. All ad placements and use of all marketing materials  shall be subject to the prior written approval of the Company. The Company will pay all marketing and advertising costs related to the  offering, including printing, postage, advertising and web site hosting.     (i) During the term of this Agreement, the Company hereby grants the Contractor a limited license to use the  Company's logo, corporate colors, trademarks, trade names, fonts, and other aspects of corporate identity in  advertisements and marketing materials related to the Notes and on the Contractor's website, subject to the Company's  prior written approval of the specific use of these items in writing in each instance (which shall not be unreasonably  withheld). The Contractor will not make use of the Company's logo, corporate colors, trademarks or trade names in any  manner that would reasonably be expected to disparage or damage such marks or the reputation of the Company or  diminish the Company's goodwill. It is expressly agreed that the Contractor is not acquiring any right, title or interest in  the Company's logo, corporate colors, trademarks, trade names or other intellectual property.     (b) Subscription, Sale and Ownership. During the term of this Agreement, the Contractor shall promptly forward to the  Company each Subscription Agreement for the Notes received from an Investor. The Company shall be responsible for determining  whether (i) such subscription shall be accepted, (ii) such agreement is complete and accurate in all material respects, including without  limitation the execution thereof by such Investor, (iii) such Investor timely remits the proper purchase price for the Notes in accordance  with the Subscription Agreement, and (iv) the principal amount, interest rate and term to maturity and any other material terms of the  Notes are verified for accuracy and completeness. Upon delivery by each Investor of a completed Subscription Agreement for Notes  and full payment of the principal amount of such Notes in accordance with the Investor's Subscription Agreement, and subject to the  acceptance of the Subscription Agreement by the Company, the Company shall promptly notify the Contractor and the Contractor shall  promptly (i) verify that the payment of the principal amount of such Investor's accepted subscription for the Notes     7
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+     is being remitted to the Company in accordance with the Subscription Agreement in an account established by the Company for such  purpose or in such other manner as may be directed by the Company from time to time, and (ii) remit to the Trustee electronic or hard  copies of all accepted Subscription Agreements and related records as may be reasonably requested by the Trustee, including without  limitation, a record of each deposit relating to the payment of the subscription amount of the Notes. Pursuant to the preceding  sentence, Notes shall be issued by the Contractor as the Company's Registrar in book-entry form only and the Contractor shall deliver  a Note Confirmation to each Holder with respect to such Holder's respective accepted Subscription Agreement and the receipt of full  payment for such Holder's Notes. In the event that the Company rejects a Subscription Agreement, the Contractor shall promptly  return the Subscription Agreement and the related subscription amount to the related Investor. The Company hereby appoints the  Contractor, and the Contractor hereby accepts such appointment, as its initial Registrar (as such term is defined in the Indenture) for  the Notes pursuant to the terms of the Indenture. For so long as the Contractor shall serve as the Registrar for the Notes, the  Contractor shall perform, in accordance with the terms of the Indenture, all of the duties and obligations of the Registrar under the  Indenture, including, without limitation, the obligation to maintain a book-entry registration and transfer system for the ownership of  the Notes in accordance with the terms of the Indenture.     (c) Investor Relations and Reporting. During the term of this Agreement the Contractor, in conjunction with the Trustee, shall perform  ministerial tasks included in the customer service and investor relations functions with respect to the Offering, as directed from time to time by the  Company, which may include, but not be limited to, handling inquiries from Investors in a manner consistent with Section 3.01(d), mailing  investment kits, delivering to each Investor the Prospectus and Subscription Agreement, and processing Subscription Agreements. The  Contractor shall to the best of its knowledge ensure that each person submitting a Subscription Agreement shall have received the Prospectus. An  Investor who visits the offering web site shall be deemed to have received the Prospectus, provided such person either delivers an Electronic  Delivery Consent Form with such Investors Subscription Agreement or certifies under penalties of perjury that he, she or it has received the  Prospectus.     (d) The Contractor shall forward to the Company written or telephonic questions by Investors and Holders relating to the Notes regarding  topics that are not addressed in the Prospectus or its supplements, including without limitation questions relating to the Company's finances and  business, the Company's performance and practices with regard to the Notes, and substantive matters regarding an investment in the Notes,  unless such questions can be answered solely by reference to the Company's SEC filings. Notwithstanding the foregoing, the Contractor may  respond to questions that are purely administrative or ministerial in nature. The Contractor shall also be responsible for recording changes in  Holders' addresses or accounts, preparing and issuing maturity and renewal notices, quarterly statements, newsletters, reports and analyses to  Holders and to the Company, directing the Paying Agent to make Scheduled Payments, Repurchase Payments and Redemption Payments to  Holders in a timely manner, and directing the Paying Agent to issue Form 1099INT's to Holders as required by law. In addition, the Contractor  shall provide the Trustee (and copy the Company) with management reports regarding the Notes as required under the Indenture.     8
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+     (e) Web Site Development. Subject to compliance and conformity with Accepted Note Practices by the Contractor, the Contractor (or a  third party service provider working at the Contractor's direction) shall assist the Company in developing a dedicated Internet web site separate  from the Company's corporate site to allow Investors to view online and download copies of the Offering documents (including the Prospectus  and Subscription Agreement) and marketing materials that are included in the investment kit or comparable information.     (f) Ownership of Web Pages. Any and all web pages used by Contractor in connection with the Offering (the "Web Pages"), and all  associated Proprietary Rights, shall be owned exclusively by the Company.     (g) Daily Payment Reports to Company. On each Business Day during the term of the Notes, the Contractor shall furnish daily reports to  the Company that detail and summarize the amount of cash that is required to pay interest and principal on the Notes.     Section 3.02 Maintenance of Files and Records. The Contractor shall establish and maintain at all times during the term of this  Agreement files and records (including, without limitation, computerized records) regarding the Notes and the Note Portfolio, with full and correct  entries of all transactions or modifications in a reasonably secure, up-to-date manner and in accordance with the following:     (a) Location. All Note and Note Portfolio files and records shall be stored and maintained at the Contractor's principal place of  business, or other location as designated by the Company. The Contractor shall keep in such files all correspondence received or sent  regarding each Note, each Investor, and each Holder, whether upon any purchase or transfer of a Note.     (b) Original Documents. The Contractor will store all original Subscription Agreements, Note Confirmations, correspondence  from Investors and Holders and other materials relating to the Renewable Note Program in a reasonably secure manner at the  Contractor's principal offices or such other location as may be designated by the Company. The Contractor shall exercise due care in  handling and delivering the original documents and the other documents in the Note files and records. The Contractor shall not grant  or allow any person an interest in original documents or rights thereunder, and all original documents in the possession of the  Contractor shall be deemed to be in the possession of the Company.     (c) Examination. At any time the Company and its agents and representatives may physically inspect any documents, files or  other records relating to the Renewable Note Program and discuss the same with the Contractor's officers and employees. The  Contractor shall supply copies of any such documents, files, or other records upon the request of the Company, as soon as is  reasonably and commercially practicable at the Company's cost and expense.     (d) Retention. Unless otherwise requested by the Company, or unless otherwise required by Governmental Rules, the  Contractor shall retain, with respect to     9
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+     each Note, for a period of 24 months from the date the Note is fully paid, all records, files and documents related to each such Note. At  the end of such 24-month period, unless otherwise directed by the Company, all such items shall be transferred to the Company, or to a  third party as designated by the Company, at the Company's sole cost and expense. The Contractor shall be permitted to retain copies  of any such documents for its own files for its own account and at its own expense. The Contractor shall maintain the privacy of the  Investors and Holders in accordance with all applicable Governmental Rules.     (e) Return. If this Agreement is terminated, or otherwise at the instruction of the Company, the Contractor shall promptly  deliver to the Company or its designee, as the case may be, all Note files and records (including, without limitation, copies of  computerized records and servicing and other software, except as may be prohibited by any third party contract or license) related to  the administration of the Notes and all monies collected by it relating to the Renewable Note Program (less any fees or expenses due to  the Contractor). The Contractor shall be entitled to make and keep copies of such records, at its cost and expense. In addition to  delivering such data and monies, the Contractor shall use its best efforts to effect the orderly and efficient transfer of the administration  of the Notes to the Company or other party designated by the Company to assume responsibility for such administration, including,  without limitation, directing Holders to remit all repurchase or other notices to the address designated by the Company. All costs of  conversion and transfer of such records to the Company or another agent shall be paid by the Company.     (f) Security. The parties shall take appropriate security measures to protect customer nonpublic personal information ("NPI"),  as defined in the Gramm-Leach-Bliley Act of 1999, Title V, and its implementing regulations, against accidental or unlawful destruction  and unauthorized access, tampering, and copying during storage in either party's computing or paper environment. Access to NPI  must be restricted to only the personnel that have a business need relating to the Renewable Note Program. NPI must be stored in a  secured format within all systems at both parties' location and any other locations where the data may reside. Transmission of such  NPI between the parties or vendors must be done in a secure manner, in a method mutually agreed upon by both parties. Each party will  engage appropriate and industry-standard measures necessary to meet information security guidelines as required by the Gramm- Leach-Bliley Act, Title V and its implementing regulations as applicable to such party to effectuate this Agreement.     Section 3.03 Information to the Company. As agreed by the parties, the Contractor shall make reports and analyses available to the  Company regarding the status of the Note Portfolio, the marketing results and the amount of Notes remaining available for issuance under the  Registration Statement. The Contractor shall also provide interim or custom reports at the Company's request as is commercially reasonable,  including, without limitation, a weekly update via email identifying new Holders by name, address and principal amount of Notes purchased. The  Contractor shall also furnish statements, reports and information to the Paying Agent to the extent that the Company is required to furnish or  cause to be furnished such statements, reports or information to the Paying Agent under the Paying Agent Agreement.     10
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+     ARTICLE IV  REPRESENTATIONS AND COVENANTS OF THE COMPANY     Section 4.01 Representations, Warranties and Agreements of the Company. The Company represents and warrants to and agrees with  the Contractor as follows, which representations and warranties shall be deemed to be made continuously from and as of the date hereof until this  Offering is terminated and all then outstanding Notes have been paid in full or such earlier date that this Agreement has been terminated, except  for those representations and warranties that address matters only as of a particular date, which representations and warranties shall be deemed to  be made as of such date.     (a) The Company satisfies all of the requirements for the use of Form S-1 with respect to the offer and sale of securities as  contemplated by the Offering. The Commission has not issued any order preventing or suspending the use of the Registration  Statement or Prospectus and no proceeding for that purpose has been instituted or, to the Company's knowledge, threatened by the  Commission or the securities authority of any state or other jurisdiction.     (b) The Company has full requisite power and authority to enter into this Agreement and perform the transactions  contemplated hereby. This Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding  agreement on the part of the Company, enforceable against the Company in accordance with its terms subject to bankruptcy,  insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors'  rights and to general principles of equity. The performance of this Agreement and the consummation of the transactions herein  contemplated will not result in a breach or violation of any of the terms and provisions of, or constitute a default under:     (i) any Material Agreement to which the Company or any subsidiary is a party or by which the Company or  any subsidiary or their respective properties may be bound;     (ii) the articles of incorporation or bylaws of the Company, or     (iii) any applicable law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or  governmental agency or body, domestic or foreign, having jurisdiction over the Company or any subsidiary or their  respective properties.     (c) No consent, approval, authorization or order of or qualification with any court, governmental agency or body, domestic or  foreign, having jurisdiction over the Company or over its properties is required for the execution and delivery of this Agreement and  the consummation by the Company of the transactions herein contemplated, except such as may be required under the Securities Act,  the Exchange Act, the Trust Indenture Act, or under state or other securities or blue sky laws, all of which requirements have been  satisfied.     11
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+     Section 4.02 Covenants of the Company. The Company hereby covenants and agrees with the Contractor as follows:     (a) The Company will notify the Contractor promptly of the time when the Registration Statement or any post-effective  amendment to the Registration Statement has become effective or any supplement to the Prospectus has been filed and of any request  by the Commission for any amendment or supplement to the Registration Statement or Prospectus or additional information. In the  event that the Company files any amendment or supplement to the Registration Statement or Prospectus to which the Contractor shall  reasonably object, the Contractor will be relieved of its obligations with respect to the Offering (but not the administration) of the Notes  until such time as the Company shall have filed such further amendments or supplements such that the Contractor is reasonably  satisfied with the Registration Statement and the Prospectus, as then amended or supplemented.     (b) The Company will advise the Contractor, promptly after it shall receive notice or obtain knowledge thereof, of the issuance  by the Commission of any stop order suspending the effectiveness of the Registration Statement, of the suspension of the qualification  of the Notes for offering or sale in any jurisdiction, or of the initiation or receipt of any specific threat of any proceeding for any such  purpose.     (c) The Company will furnish to the Contractor copies of the Registration Statement, the Prospectus, and all amendments and  supplements to such documents, in each case as soon as available and in such quantities as the Contractor may from time to time  reasonably request.     (d) For such period as this Agreement may be in effect, the Company shall make available to the Contractor, as soon as the  same shall be sent to its stockholders generally, copies of all annual or interim stockholder reports of the Company and will, for the  same period, also furnish the Contractor one copy of any report, application or document (other than exhibits, which, however, will be  furnished on the Contractor's request) filed by the Company with the Commission, The Nasdaq Stock Market or any other securities  exchange.     (e) At all times during the term of this Agreement, the Company shall provide all information reasonably requested by the  Contractor that relates to the Renewable Note Program in a timely manner and shall use its best efforts to insure that such information  is complete and accurate.     (f) The Company will, during the term of this Agreement, furnish directly to the Contractor quarterly profit and loss statements  and reports of the Company's cash flow as reported on the applicable quarterly report on Form 10-Q.     12
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+   ARTICLE V  REPRESENTATIONS AND COVENANTS OF THE CONTRACTOR; CONDITIONS     Section 5.01 Representations and Warranties of the Contractor. The Contractor hereby represents and warrants to the Company as  follows, which representations and warranties shall be deemed to be made continuously from and as of the date hereof until this Offering is  terminated or such earlier date that this Agreement has been terminated:     (a) The Contractor (i) has been duly organized, is validly existing and in good standing as a Minnesota limited liability  company, (ii) has qualified to do business as a foreign corporation and is in good standing in each jurisdiction where the character of  its properties or the nature of its activities (including without limitation activities of the Contractor hereunder) makes such qualification  necessary, and (iii) has full power, authority and legal right to own its property, to carry on its business as presently conducted, and to  enter into and perform its obligations under this Agreement.     (b) The Contractor has full requisite power and authority to enter into this Agreement and perform the transactions  contemplated hereby. This Agreement has been duly authorized, executed and delivered by the Contractor and is a valid and binding  agreement on the part of the Contractor, enforceable against the Contractor in accordance with its terms subject to bankruptcy,  insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors'  rights and to general principles of equity. The performance of this Agreement and the consummation of the transactions herein  contemplated will not result in a breach or violation of any of the terms and provisions of, or constitute a default under:     (i) any Material Agreement to which the Contractor is a party or by which the Company or its properties may  be bound;     (ii) the articles of incorporation or bylaws of the Contractor, or     (iii) any applicable law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or  governmental agency or body, domestic or foreign, having jurisdiction over the Contractor or over its properties.     (c) The Contractor has obtained all governmental consents, licenses, approvals and authorizations, registrations and  declarations which are necessary for the execution, delivery, performance, validity and enforceability of the Contractor's obligations  under this Agreement.     (d) The Contractor has operated and is operating in compliance with all authorizations, licenses, certificates, consents, permits,  approvals and orders of and from all state, federal and other governmental regulatory officials and bodies necessary to conduct its  business as contemplated by and described in this Agreement, all of which are, to the Contractor's knowledge, valid and in full force  and effect. The     13
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+     Contractor is conducting its business in compliance with all applicable Governmental Rules, laws, rules and regulations of the  jurisdictions in which it is conducting business, and the Contractor is not in violation of any applicable Governmental Rules, law, order,  rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign,  having jurisdiction over the Contractor or over its properties.     (e) The Contractor maintains insurance, which is in full force and effect, with insurers of recognized financial responsibility of  the types and in the amounts generally deemed adequate for its business and, to the best of the Contractor's knowledge, in line with  the insurance maintained by similar companies and businesses; and the Contractor has no reason to believe that it will not be able to  renew its existing insurance coverage as and when such coverage expires or obtain similar coverage from similar insurers as may be  necessary to continue its business at a cost that would not materially and adversely affect the financial condition or business  operations of the Contractor.     Section 5.02 Covenants of the Contractor. The Contractor hereby covenants to the Company as follows, which covenants shall be  deemed in force unless and until this Agreement is terminated as provided herein:     (a) The Contractor shall punctually perform and observe all of its obligations and agreements contained in this Agreement.     (b) The Contractor shall conduct its business in compliance with all applicable Governmental Rules, and its activities shall not  violate any governmental rules relating to the registration or the activities of securities brokers and dealers. To the extent that this  covenant to comply with all Governmental Rules conflicts with any other covenant contained in this Agreement, the covenant to  comply with all Governmental Rules shall control.     (c) Except as provided in this Agreement, the Contractor shall not take any action, or permit any action to be taken by others,  which would excuse any person from any of its covenants or obligations under any Note, or under any other instrument related to a  Note, or which would result in the amendment, hypothecation, subordination, termination or discharge of, or impair the validity or  effectiveness of, any Note or any such instrument or any right in favor of the Company in a Note or such instrument, without the  written consent of the Company.     (d) The Contractor shall not assign this Agreement or any of its rights, powers, duties or obligations hereunder without the  express prior written consent of the Company, which shall not be unreasonably withheld.     (e) At all times during the term of this Agreement, the Contractor shall provide all information relating to the Offering, the  Renewable Note Program or the Note Portfolio reasonably requested by the Company in a timely manner and shall use its best efforts  to insure that such information is complete and accurate in all material respects.     14
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+     (f) The Contractor shall take such additional action as is reasonably requested by the Company in order to carry out the  purposes of this Agreement. Such reasonable additional action includes, but is not limited to, cooperating with Company in verification  of Contractor's compliance, such as by providing copies of certificates of insurance and of other books and records of Contractor, and  by permitting inspection of the premises, books and records of Contractor.     ARTICLE VI  CONDITIONS     Section 6.01 Conditions of the Contractor's Obligations. The obligation of the Contractor to administer the Offering on a best efforts  basis as provided herein shall be subject to the accuracy of the representations and warranties of the Company, to the performance by the  Company of its obligations hereunder, and to the satisfaction of the following additional conditions:     (a) The Registration Statement shall be effective, and no stop order suspending the effectiveness thereof shall have been  issued and no proceedings for that purpose shall have been initiated or, to the knowledge of the Company, or the Contractor,  threatened by the Commission or any state securities commission or similar regulatory body. Any request of the Commission for  additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to  the reasonable satisfaction of the Contractor and the Contractor's counsel.     (b) The Contractor shall not have advised the Company of its reasonable belief that the Registration Statement or Prospectus,  or any amendment thereof or supplement thereto, contains any untrue statement of a fact which is material or omits to state a fact which  is material and is required to be stated therein or is necessary to make the statements contained therein, in light of the circumstances  under which they were made, not misleading, or, if the Contractor has so advised the Company, the Company shall not have taken  reasonable action to investigate such belief and, where appropriate, amend the Registration Statement or supplement the Prospectus so  as to correct such statement or omission or effect such compliance.     (c) The Indenture shall have been duly authorized, executed and delivered by the Company and duly qualified under the Trust  Indenture Act.     (d) All corporate proceedings and other legal matters in connection with this Agreement, the form of Registration Statement  and the Prospectus, and the registration, authorization, issue, sale and delivery of the Notes shall have been reasonably satisfactory to  the Contractor's counsel, in all material respects, and the Contractor's counsel shall have been furnished with such papers and  information as it may reasonably have requested to enable it to pass upon the matters referred to in this Section.     15
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+
+
+     ARTICLE VII  INDEMNIFICATION AND CONTRIBUTION     Section 7.01 The Company's Indemnification of the Contractor. The provisions of Exhibit A hereto, entitled "Responsibility of and  Indemnification by Agency" are hereby incorporated herein by reference.     Section 7.02 The Contractor's Indemnification of the Company. The provisions of Exhibit A hereto, entitled "Responsibility of and  Indemnification by Company" are hereby incorporated herein by reference.     Section 7.03 Intellectual Property Infringement. The Contractor agrees that it shall defend, indemnify and hold harmless, at its own  expense, all suits and claims against the Company and any officers, directors, employees and affiliates of the Company (collectively, the "Company  Indemnified Parties"), for infringement or violation of any patent, trademark, copyright, trade secret or other intellectual property rights of any third  party that relates to this Agreement or the Offering, or servicing of the Notes. The Contractor agrees that it shall pay all sums, including without  limitation, reasonable attorneys' fees and other costs incurred by the Company, in defense of, by final judgment or decree, or in settlement of any  suit or claim asserted or assessed against, or incurred by, any of the Company Indemnified Parties on account of such infringement or violation,  provided that the Company Indemnified Parties involved shall cooperate in all reasonable respects with the Contractor and its attorneys in the  investigation, trial and defense of such lawsuit or action and any appeal arising therefrom; provided, however, that the Company Indemnified  Parties may, at their own cost, participate in the investigation, trial and defense of such lawsuit or action and any appeal arising therefrom. The  parties shall cooperate with each other in any notifications to insurers.     Section 7.04 Confidentiality. The parties to this Agreement acknowledge and agree that all information, whether oral or written,  concerning a disclosing party and its business operations, prospects and strategy, which is furnished by the disclosing party to the other party is  deemed to be confidential, restricted and proprietary to the disclosing party (the "Proprietary Information"). Proprietary Information supplied shall  not be disclosed, used or reproduced in any form except as required to accomplish the intent of, and in accordance with the terms of, this  Agreement and the Indenture. The receiving party shall provide the same care to avoid disclosure or unauthorized use of Proprietary Information  as it provides to protect its own proprietary information, including without limitation retaining Proprietary Information in a secure place with limited  access, but in no event shall the receiving party fail to use reasonable care under the circumstances to avoid disclosure or unauthorized use of  Proprietary Information. Unless otherwise specified in writing, all Proprietary Information shall (i) remain the property of the disclosing party, (ii) be  used by the receiving party only for the purpose for which it was intended under this Agreement and the Indenture, and (iii) together with all  copies of such information, be returned to the disclosing party or destroyed upon request of the disclosing party, and, in any event, upon  termination of this Agreement, except as otherwise provided or contemplated by this Agreement, including Sections 3.02(b) and (e) and 8.05  hereof. Proprietary Information does not include information which is: (a) published or included as disclosure within the Registration Statement or  otherwise available in the public domain through no fault of the receiving party; (b) lawfully received from a third party having rights in the  information without     16
+
+
+
+
+
+     restriction of the third party's right to disseminate the information and without notice of any restriction against its further disclosure; or (c)  produced under order of a court of competent jurisdiction or other similar requirement of a governmental agency or authority, so long as the party  required to disclose the information provides the other party with prior notice of such order or requirement and its cooperation to the extent  reasonable in preserving its confidentiality. Because damages may be difficult to ascertain, and without limiting any other rights and remedies  specified herein, an injunction may be sought against the party who has breached or threatened to breach this Section.     ARTICLE VIII  TERM AND TERMINATION     Section 8.01 Effective Date of this Agreement. This Agreement shall become effective as of the date first set forth above, and shall  continue in full force and effect until terminated as provided below.     Section 8.02 Termination. The Company or the Contractor may terminate this Agreement at any time in whole or in part as more  specifically provided below, and in such case, the Contractor will be paid fees incurred up to the date of such termination plus its expenses  accrued as of such date within 30 days of such termination. The Company will have the ability to terminate this Agreement by giving 60 days' prior  written notice to the Contractor. The Contractor will have the ability to terminate this Agreement by giving 90 days' prior written notice to the  Company.     Section 8.03 Termination Without Termination of Offering. Anything to the contrary notwithstanding, the termination of this  Agreement shall not prevent the Company from commencing or cause the Company to terminate the Offering. In the event this Agreement is  terminated without a termination of the Offering, then the Company, or its agents, shall be entitled to use all materials developed by the Contractor  related to the Notes as provided elsewhere herein.     ARTICLE IX  MISCELLANEOUS     Section 9.01 Survival. The respective indemnity and contribution agreements of the Company and the Contractor set forth herein and the  respective representations, warranties, covenants and agreements of the Company and the Contractor set forth herein, shall remain operative and  in full force and effect, regardless of any investigation made by, or on behalf of, the Contractor, the Company, any of its officers and directors, or  any controlling person referred to in Article VII and shall survive the sale of the Notes and any termination or cancellation of this Agreement. Any  successor of any party or of any such controlling person, or any legal representative of such controlling person, as the case may be, shall be  entitled to the benefit of the respective indemnity and contribution agreements.     Section 9.02 Notices. All notices or communications hereunder, except as herein otherwise specifically provided, shall be in writing and  shall be mailed, delivered or transmitted by any standard form of telecommunication, as follows:     17
+
+
+
+
+
+
+
+   Section 9.03 Successors and Assigns; Transfer. This Agreement shall inure to the benefit of and be binding upon the Contractor and  the Company and their respective successors and permitted assigns. Nothing expressed in this Agreement is intended or shall be construed to  give any person or corporation, other than the parties hereto, their respective successors and assigns, any legal or equitable right, remedy or claim  under, or in respect of, this Agreement or any provision herein contained; this Agreement and all conditions and provisions hereof being intended  to be and being for the sole and exclusive benefit of the parties hereto and their respective executors, administrators, successors, and for the  benefit of no other person or corporation. Neither party may assign its rights and obligations under this Agreement without the written consent of  the other party.     Section 9.04 Cumulative Remedies. Unless otherwise expressly provided herein, the remedies of the parties provided for herein shall be  cumulative and concurrent, and may be pursued singularly, successively or together, at the sole discretion of the party for whose benefit such  remedy is provided, and may be exercised as often as occasion therefor shall arise.     Section 9.05 Attorneys' Fees. In the event of any action to enforce or interpret this Agreement, the prevailing party shall be entitled to  recover reasonable attorneys' fees and costs, whether or not such action proceeds to judgment.     18
+
+            If to the Contractor, to:
+
+
+
+Redwater LLC   5400 Opportunity Court   Suite 160   Minneapolis, Minnesota 55343   Attention: K. Edward Elverud   Tel. (952) 345-3385                   If to the Company, to:
+
+
+
+   Twin Cities Power Holdings, LLC   16233 Kenyon Avenue   Suite 210   Lakeville, Minnesota 55044      Attn: Chief Executive Officer      Tel. 952-431-0400                   with a copy to:
+
+
+
+Leonard, Street and Deinard   150 South Fifth Street — Suite 2300   Minneapolis, Minnesota 55402      Attention: Mark S. Weitz      Tel. 612-335-1517
+
+
+
+
+
+     Section 9.06 Entire Agreement. Except as otherwise expressly provided herein, this Agreement constitutes the entire agreement of the  parties hereto with respect to the matters addressed herein and supersedes all prior or contemporaneous contracts, promises, representations,  warranties and statements, whether written or oral (including, but not limited to, the Proposal), with respect to such matters.     Section 9.07 Choice of Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of  Minnesota, without regard to conflict of law principles. Any dispute shall be heard in the courts of the state of Minnesota.     Section 9.08 Rights to Investor Lists. The parties acknowledge that the Offering will produce a list of investors that purchase Notes, a  list of prospects that respond to advertisements, but do not purchase any Notes, a list of former investors who redeemed their Notes, and a list of  former investors whose Notes the Company redeemed. Subject to any privacy laws, both the Company and the Contractor will be able to use these  lists for their own business purposes as long as doing so does not interfere with the marketing, sale or administration of the Notes.     Section 9.09 Waiver; Subsequent Modification. Except as expressly provided herein, no delay or omission by any party in insisting upon  the strict observance or performance of any provision of this Agreement, or in exercising any right or remedy, shall be construed as a waiver or  relinquishment of such provision, nor shall it impair such right or remedy, and no waiver by any party or any failure or refusal of the other party to  comply with its obligations under this Agreement shall be deemed a waiver of any other or subsequent failure or refusal to so comply by such  other party. No waiver or modification of the terms hereof shall be valid unless in writing and signed by the party to be charged, and then only to  the extent therein set forth.     Section 9.10 Severability. If any term or provision of this Agreement or application thereof to any person or circumstance shall, to any  extent, be found by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement, or the application of such  term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby and  each term or provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.     Section 9.11 Joint Preparation. The preparation of this Agreement has been a joint effort of the parties and the resulting document shall  not, solely as a matter of judicial construction, be construed more severely against one of the parties than the other.     Section 9.12 Captions. The title of this Agreement and the headings of the various articles, section and subsections have been inserted  only for the purpose of convenience, are not part of this Agreement and shall not be deemed in any manner to modify, explain, expand or restrict  any of the provisions of this Agreement.     Section 9.13 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original,  but all of which together shall constitute one instrument.     Section 9.14 Third Party Contractors. In the event that the Company engages a third party to perform any of the obligations of the  Contractor under this Agreement, the Company      19
+
+
+
+
+
+     shall provide written notice to the Contractor of such engagement, the Contractor shall thereafter be relieved of any such obligations for which the  third party was engaged.     [Remainder of page intentionally left blank]     20
+
+
+
+
+
+     IN WITNESS WHEREOF, this Outsourcing Agreement is hereby entered into by the undersigned parties as of the date first set forth  above.
+
+   21
+
+Exhibit A    Media Services     The following describes the advisory services to be provided by Redwater LLC ("Contractor") to Twin Cities Power Generation ("Company") in  connection with the administration of Company's renewable, unsecured, subordinated notes (the "Notes"), as more specifically defined in, and  pursuant to the terms of, the Outsourcing Agreement to which this description is an exhibit.     1. Agent Services.     Agent will perform the following services for Company:     · Acting on the study, analysis and knowledge of the product described above, formulate and recommend a media plan to the  Company and coordinate the execution of such a plan as directed by the Company.     · Check and verify insertions, displays, broadcasts or other means used.     · Audit invoices for space and time and other marketing services performed on Company's behalf.     · Coordinate creative and copy development, direct mail services, literature fulfillment, commercial printing, list management, list  brokering, efficiency analysis and other similar activities.     2. General Provisions.
+
+                                 TWIN CITIES POWER HOLDINGS, LLC                                        By:
+
+          Name:
+
+          Title:
+
+
+
+                    REDWATER LLC.                                        By:
+
+          Name:     K. Edward Elverud          Title:     Manager
+
+
+
+
+
+     Approval of Expenditures: Contractor agrees to secure Company's written approval of all expenditures in connection with Company's  plans.     Cancellation of Plans: Company reserves the right to modify, reject, cancel or stop any and all plans, schedules or work in progress. In  such event Contractor shall take reasonable steps to carry out Company's instructions as promptly as practicable. Company agrees to assume  liability for all commitments made by Contractor on its behalf, and to reimburse Contractor for any losses (including cancellation penalties) that  Contractor may sustain derived therefrom and for all expenses incurred in connection with Company approved plans on its authorization, and to  pay Contractor any service charges relating thereto, in accordance with the provisions hereof.     Failure of Suppliers to Perform: Contractor will endeavor to the best of its knowledge and ability guard against any loss to Company  through failure of media or suppliers to properly execute their commitments, but shall not be held responsible for any failure on their part.     Confidentiality: Contractor acknowledges its responsibility to use all reasonable efforts to preserve the confidentiality of any proprietary  or confidential information or data developed by Contractor on behalf of Company or disclosed by Company to Contractor.     22
+
+
+
+
+
+     Responsibility of and Indemnification by Agency: Contractor agrees to indemnify and hold Company, its officers, directors, agents and  employees harmless from and against any claims, liabilities, losses, costs, expenses, or the like, including reasonable attorneys' fees, incurred in  respect to any material breach by Contractor hereof or Contractor's negligence and/or intentional wrongdoing in connection with the services.     Responsibility of and Indemnification by Company: Company agrees to indemnify and hold Contractor, its officers, managers, directors,  agents and employees harmless from and against any claims, liabilities, losses, costs, expenses, or the like, including reasonable attorneys' fees,  incurred in respect to any material breach by Company of this Agreement or Company's negligence and/or intentional wrongdoing in connection  with the services. Company shall be responsible for the accuracy, completeness and propriety of information concerning its products and services  that it furnishes to Contractor in connection with the performance of the services.     3. Expenses and Fees.     · Company agrees to pay or prepay advertising, graphic design and printing expenses either directly to the respective vendors or to  the Contractor as required. The Company will pay the Contractor the difference between the published gross rates and the net  rates for all advertisements, graphic design services or printing services or an equivalent mark-up. All Contractor fees will be  subject to the approval of the Company.     · Refunds: Contractor shall refund or credit Company any other refunds received in connection with advertisements.     · Other Marketing Expenses. Subject to its prior approval, the Company agrees to pay Contractor for all reasonable out of pocket,  non-media charge marketing expenses related to the development and production of all direct marketing and promotional  materials.     5. Termination.     · Period of Services: The services described herein to be provided by Agency shall begin upon execution and delivery of the  Outsourcing Agreement and shall continue until termination of Contractor's activities to administer the Notes thereunder.     · Payment for Purchases and Work Done: Any materials, services, etc. Contractor has committed to purchase for Company's  account, or with Company's approval (or any uncompleted work previously approved by Company either specifically or as part  of a plan) prior to termination of the Services shall be paid for by Company in accordance with the provisions of this Agreement.     23
+
+
+
+
+
+  Exhibit B   Service Standards     Initial Instructions of Company to Contractor pursuant to that certain Outsourcing Agreement dated as of , 2012, between Twin Cities Power  Holdings, LLC and Redwater LLC.     Geographical Limitations. Contractor shall not communicate with Investors resident in any state that is identified in the then-current Prospectus as  a state in which the Notes are not offered, other than to communicate, in substance, that the Notes are not offered to persons resident in such  states. The initial list of such states is as follows, but the Company may, in its discretion, amend such list by filing an amended Prospectus or a  supplement to Prospectus:     . [TBD]     24

full_contract_txt/ATENTOSA_07_06_2020-EX-99.1-JOINT FILING AGREEMENT.txt

@@ -0,0 +1,29 @@
+Exhibit 99.1
+
+JOINT FILING AGREEMENT
+
+Pursuant and subject to Rule 13d-1(k)(1) promulgated under the Securities Exchange Act of 1934, as amended, the undersigned hereby agree to the joint filing of the Statement on Schedule 13D to which this Joint Filing Agreement is attached, and any amendments thereto may be filed without the necessity of filing additional joint filing agreements. This Joint Filing Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument.
+
+The execution and filing of this agreement shall not be construed as an admission that the below-named parties are a group or have acted as a group.
+
+Dated: July 6, 2020
+
+HPS INVESTMENT PARTNERS, LLC /s/ John Madden Name: John Madden Title: Authorized Signatory HPS MEZZANINE PARTNERS II, LLC By: HPS Investment Partners, LLC, its sole member /s/ John Madden Name: John Madden Title: Authorized Signatory
+
+[Signature Page to Joint Filing Agreement]
+
+
+
+
+
+HPS MEZZANINE PARTNERS II OFFSHORE GP, L.P. By: HPS Partners Holdings II, LLC, its general partner /s/ John Madden Name: John Madden Title: Authorized Signatory MEZZANINE PARTNERS - OFFSHORE INVESTMENT MASTER FUND II, L.P. By: HPS Mezzanine Partners II, LLC, its investment manager By: HPS Investment Partners, LLC, its sole member /s/ John Madden Name: John Madden Title: Authorized Signatory MEZZANINE PARTNERS II OFFSHORE LUX S.À R.L /s/ John Madden Name: John Madden Title: Authorized Signatory MEZZANINE PARTNERS II OFFSHORE LUX S.À R.L II /s/ John Madden Name: John Madden Title: Authorized Signatory
+
+[Signature Page to Joint Filing Agreement]
+
+
+
+
+
+HPS MEZZANINE PARTNERS II GP, L.P. By: HPS Partners Holdings II, LLC, its general partner /s/ John Madden Name: John Madden Title: Authorized Signatory MEZZANINE PARTNERS II, L.P. By: HPS Mezzanine Partners II Offshore GP, L.P., its general partner By: HPS Partners Holdings II, LLC, its general partner /s/ John Madden Name: John Madden Title: Authorized Signatory MEZZANINE PARTNERS II ONSHORE LUX S.À R.L /s/ John Madden Name: John Madden Title: Authorized Signatory MEZZANINE PARTNERS II ONSHORE LUX S.À R.L II /s/ John Madden Name: John Madden Title: Authorized Signatory
+
+[Signature Page to Joint Filing Agreement]

full_contract_txt/ATMOSENERGYCORP_11_22_2002-EX-10.17-TRANSPORTATION SERVICE AGREEMENT.txt

@@ -0,0 +1,291 @@
+EXHIBIT 10.17
+
+                        TRANSPORTATION SERVICE AGREEMENT                          UNDER RATE SCHEDULE FTS OR ITS
+
+         THIS AGREEMENT ("Agreement"), entered into on May 20, 1992, is between Arkansas Western Pipeline Company ("Transporter"), an Arkansas corporation, and Associated Natural Gas Company, a division of Arkansas Western Gas Company, ("Shipper");
+
+                                  WITNESSETH:
+
+         WHEREAS, Shipper has requested natural gas for that Transporter transport Shipper; and
+
+         WHEREAS, Transporter has agreed to provide such transportation for Shipper subject to the terms and conditions set forth in this Agreement.
+
+         NOW, THEREFORE, in consideration of the promises and the mutual covenants herein contained, the parties agree as follows:
+
+                                   ARTICLE I
+
+                                  DEFINITIONS
+
+         1.1      "Maximum Daily Delivery Obligation (MDDO)" means the maximum                   daily quantity of natural gas, expressed in Dekatherms (Dth),                   that Transporter is obligated to deliver from time to time at                   the Point(s) of Delivery specified in Exhibit B to the                   executed Agreement.
+
+         1.2      "Maximum Daily Quantity (MDQ) " means the maximum daily                   quantity of natural gas, expressed* in Dth's, that Transporter                   is obligated under the executed Agreement to transport on                   behalf of' Shipper, which shall be 23,000 Dth.
+
+         1.3      "Equivalent Quantity" means the quantity, expressed in Dth's,                   delivered to Shipper by Transporter at the Point(s) of                   Delivery. Such quantity is equal to the quantity of gas                   received from Shipper at the Point(s) of Receipt less Fuel                   Usage and Applicable Shrinkage.
+
+         1.4      "Fuel Usage and Applicable Shrinkage" means the quantity of                   natural gas retained by Transporter for fuel usage, leakage,                   blow-down, minor line pack fluctuations, and lost and                   unaccounted for natural gas.
+
+                                   ARTICLE II
+
+                       NATURAL GAS TRANSPORTATION SERVICE
+
+         2.1      Beginning on the date on which deliveries of natural gas are                   commenced hereunder, and thereafter for the remaining term of                   this Agreement, Shipper agrees to tender gas to Transporter at                   the Point(s) of Receipt, and Transporter agrees to transport                   and redeliver and Shipper agrees to accept delivery of the                   Equivalent Quantities of gas at the Point(s) of Delivery, all     &bbsp;             in accordance with the terms of this Agreement.
+
+         2.2      Transportation service rendered hereunder shall be                   firm/interruptible service as described in Section 2 of                   Transporter's X Rate Schedule FTS _____ Rate Schedule ITS.
+
+                                  ARTICLE III
+
+                              POINT(S) OF RECEIPT
+
+         The Point(s) of Receipt at which Transporter shall receive gas for          transportation under this Agreement shall be specified in Exhibit A to          this Agreement.
+
+                                   ARTICLE IV
+
+                              POINT(S) OF DELIVERY
+
+         The Point(s) of Delivery at which Transporter shall redeliver to          Shipper or for the account of Shipper an Equivalent Quantity of gas for          transportation under this Agreement shall be specified in Exhibit B to          this Agreement. Notwithstanding the MDDO at each Point of Delivery,          Shipper shall not nominate a total quantity of natural gas at all          Points of Delivery that exceeds the MDQ set forth in this Agreement.
+
+                                   ARTICLE V
+
+                               TERM OF AGREEMENT
+
+         5.1      Subject to the General Terms and Conditions of Transporter's                   FERC Gas Tariff and Rate Schedule FTS/ITS, this Agreement                   shall be effective as of the date of physical completion of                   and initial deliveries on Transporter's pipeline and shall                   continue for a primary term of ten years. Thereafter, this
+
+
+
+
+
+                  Agreement shall be effective month to month, until terminated                   by Transporter or Shipper upon the following written notice to                   the other specifying a termination date: sixty (60) days for
+
+                  interruptible transportation under Rate Schedule ITS and 180                   days for firm transportation under Rate Schedule FTS.
+
+         5.2      Any portions of this Agreement necessary to balance receipts                   and deliveries under this Agreement as required by the FTS/ITS                   Rate Schedule, shall survive the other parts of this Agreement                   until such time as such balancing has been accomplished.
+
+                                   ARTICLE VI
+
+                           RATE SCHEDULE AND CHARGES
+
+         6.1      Shipper shall pay Transporter for the service hereunder an                   amount determined in accordance with Transporter's FTS/ITS                   Rate Schedule, and the General Terms and Conditions of                   Transporter's FERC Gas Tariff, all as may be revised from time                   to time. Such FTS/ITS Rate Schedule and General Terms and                   Conditions are incorporated by reference and made a part                   hereof.
+
+         6.2      Transporter may seek authorization from the FERC and/or other                   appropriate body to change any rate(s) and/or term(s) set                   forth herein or in the FTS or ITS Rate Schedule. Nothing                   herein shall be construed to deny Shipper any rights it may                   have under the Natural Gas Act or the Natural Gas Policy Act                   including the right to participate fully in rate proceedings                   by intervention or otherwise to contest increased rates in                   whole or in part.
+
+                                  ARTICLE VII
+
+                             REDUCTION IN CAPACITY
+
+         For firm transportation only, if Transporter's capacity is reduced for          any reason and a reduction of the quantity of gas being transported          hereunder is required, Shipper's MDQ shall be reduced pro rata with the          MDQ's of the other firm Shippers during the period of such capacity          reduction.
+
+                                  ARTICLE VIII
+
+                                  MISCELLANEOUS
+
+         8.1      Amendment. This Agreement shall only be amended, varied or                   modified by an instrument in writing executed by Transporter                   and Shipper. Such amendment will be effective upon compliance                   with Article VIII herein.
+
+         8.2      Applicable Law. This Agreement and the rights and duties of                   Transporter and Shipper hereunder shall be governed by and                   interpreted in accordance with the laws of the State of                   Arkansas, without recourse to the law governing conflict of                   laws.
+
+         8.3      Waiver. No waiver by either Transporter or Shipper of any                   default by the other in the performance of any provision,                   condition or requirement herein shall be deemed a waiver of,                   or in any manner a release from, performance of any other                   provision, condition or requirement herein, nor deemed to be a                   waiver of, or in any manner a release from, future performance                   of the same provision, condition or requirement; nor shall any                   delay or omission by Transporter or Shipper to exercise any                   right hereunder impair the exercise of any such right or any                   like right accruing to it thereafter.
+
+         8.4      Headings. The headings of each of the various sections in this                   Agreement are included for convenience of reference only and                   shall have no effect on, nor be deemed part of the text of,                   this Agreement.
+
+         8.5      Further Assurances. Transporter and Shipper shall execute and                   deliver all instruments and documents and shall do all acts                   necessary to effectuate this Agreement.
+
+         8.6      Entire Agreement. This Agreement constitutes the entire                   agreement between Transporter and Shipper concerning the                   subject matter hereof and supersedes all prior understandings                   and written and oral agreements relative to said matter.
+
+         8.7      Cancellation of Prior Agreement(s). This Agreement, upon its                   effective date, supersedes and cancels any and all other                   agreements between Transporter and Shipper relating to the                   transportation of gas by Transporter for Shipper.
+
+                                   ARTICLE IX
+
+                                    NOTICES
+
+
+
+
+
+         All notices, requests, statements or other communications provided for          under this Agreement shall be in writing and shall be given by personal          delivery or by United States mail, postage prepaid, and addressed as          follows:
+
+         If to Shipper:
+
+         Arkansas Western Gas Company          1001 Sain Street          P. 0. Box 1288          Fayetteville, AR 72702-1288
+
+         If to Transporter:
+
+         Arkansas Western Pipeline Company          1083 Sain Street          P. O. Box 1408          Fayetteville, AR 72702-1408          Attn: Manager of Transportation Services
+
+         All written notices, requests, statements or other communications shall          be sufficiently given if mailed postage prepaid by registered,          certified, or regular mail and shall be deemed to have been duly          delivered on the third business day following the date on which same          was deposited in the United States mail, addressed in accordance with          this Article VIII. Either Shipper or Transporter may designate a          different address to which notices, requests, statements, payments or          other communications shall be sent upon proper notice as set forth in          this Article VIII.
+
+              IN WITNESS WHEREOF, Transporter and Shipper have caused this Agreement to be duly executed by their duly authorized officers in two (2) original counterparts as of May 20, 1992.
+
+                                      "TRANSPORTER"
+
+                                      ARKANSAS WESTERN PIPELINE COMPANY                                       an Arkansas Corporation
+
+                                      By /s/ [ILLEGIBLE]                                          ---------------------------------------                                          President
+
+WITNESS: /s/ [ILLEGIBLE]          ------------------------
+
+                                      "SHIPPER"
+
+                                      ASSOCIATED NATURAL GAS COMPANY,                                       a division of Arkansas Western Company Gas                                       Company
+
+                                      By /s/ [ILLEGIBLE]                                          ---------------------------------------
+
+WITNESS:          ------------------------
+
+                                    EXHIBIT A                                        TO                         TRANSPORTATION SERVICE AGREEMENT                                DATED MAY 20, 1992                      BETWEEN ASSOCIATED NATURAL GAS COMPANY                       AND ARKANSAS WESTERN PIPELINE COMPANY
+
+                                                                              Pressure Psig                                Meter                                   MDQ    -------------      Receipt Point             Number     SEC-TWN-RNG   County   ST   Dth/d    Max     Min      -------------             -------    -----------   ------   --   ------  -----   -----                                                                1.   NOARK Pipeline System     Pending     31-19N-9E     Clay    AR   23,000   685     550
+
+SHIPPER:                                TRANSPORTER: ASSOCIATED NATURAL GAS COMPANY          ARKANSAS WESTERN PIPELINE COMPANY
+
+By: /s/ [ILLEGIBLE]                     By: /s/ [ILLEGIBLE]     --------------------------              -----------------------------
+
+
+
+
+
+                                    EXHIBIT B                                        TO                         TRANSPORTATION SERVICE AGREEMENT                                DATED MAY 20, 1992                      BETWEEN ASSOCIATED NATURAL GAS COMPANY                       AND ARKANSAS WESTERN PIPELINE COMPANY
+
+                                                                               Pressure Psig                                Meter                                   MDDO    -------------      Delivery Point            Number     SEC-TWN-RNG   County    ST   Dth/d    Max     Min      --------------            -------    -----------   -------   --   ------  -----   -----                                                                 1.   Associated Natural Gas    Pending    28-19N-10E    Dunklin   mo   23,000   500     400
+
+SHIPPER:                                TRANSPORTER: ASSOCIATED NATURAL GAS COMPANY          ARKANSAS WESTERN PIPELINE COMPANY
+
+By: /s/ [ILLEGIBLE]                     By: /s/ [ILLEGIBLE]     --------------------------              -----------------------------     President
+
+                                   SCHEDULE 2
+
+              CONTRACTS BIFURCATED OR PARTIALLY ASSIGNED TO ATMOS
+
+Contract                               Quantity Assigned        Expiration --------                               -----------------        ---------- Transportation & Storage:                                                            AWP FT dated 5/20/92                    13,370 MMBtu/d          07/31/2003 Ozark FT #Z2001 @ AWP                   13,370 MMBtu/d          10/31/2002 Ozark FT #Z2001 @ NGPL                   .2000 MMBtu/d          10/31/2002 TETCO CDS (FT) #800204                   9,826 MMBtu/d          10/31/2012 TETCO SSI #400184                       11,303 DTH/d W/D        04/30/2012                                         .3,876 DTH/d Inj.       04/30/2012 Supply: SEECO Finn Sales dated 10/1/90          15,370 MMBtu/d          09/30/2000
+
+              FORM OF NOTICE OF PERMANENT RELEASE OF FIRM CAPACITY                         AND CONSENT TO PARTIAL ASSIGNMENT
+
+A.       Associated Natural Gas Company, a division of Arkansas Western Gas          Company ("Releasing Shipper") is a firm Shipper that is party to an          executed and valid Service Agreement with Arkansas Western Pipeline          Company under Rate Schedule FTS ("Transporter"). Releasing Shipper          proposes to release capacity as set forth below, and in accordance with          the applicable provisions of Transporter's FERC Gas Tariff. Upon the          satisfaction of all conditions applicable to the proposed release          transaction, including all applicable provisions of Section 14 of the          General Terms and Conditions of Transporter's FERC Gas Tariff,          Releasing Shipper will consent to a partial and permanent assignment of          capacity on Transporter's system. Subject to the satisfaction of such          conditions by the Releasing Shipper and the Replacement Shipper,          Transporter will consent to this partial and permanent assignment of          capacity on its system, and will waive the requirement under Section          14.7 of the General Terms and Conditions of Transporter's FERC Gas          Tariff, providing that Releasing Shipper shall remain the guarantor of          payment to Transporter of all demand charges arising under its Service          Agreement with Transporter for such assigned capacity.
+
+B.       Rate Schedule and contract number pursuant to which capacity is          released, Contract Number: FTS - 0 1
+
+C.       Quantity of capacity to be released: Max 13,370 Dfli/Day,                                Min 13,370 DthDay.
+
+D.       (i) Minimum transportation rate acceptable to Releasing Shipper (if          none, write "none"; includes commodity component):
+
+         Tariff Rate
+
+         (ii) Bid Requirements:
+
+              (a) _X_ Reservation, __Volumetric
+
+                  or ___ Volumetric with ___ volume commitment
+
+              (b) __ Dollar/Cents or __ Percentage
+
+E.       Receipt Points and Delivery Points (designate primary and/or          secondary):
+
+         Receipt Point: "Ozark/AWP Interconnect" Meter 00010
+
+
+
+
+
+         Delivery Point: "AWP/ANG Interconnect" Meter 00020 MDQ @ 13,370          MMBtu/d.
+
+F.       Bid Evaluation Methodology: i) highest rate, net revenue or present          value
+
+         ii).     If Releasing Shipper chooses to provide weighting factors in                   accordance with Section 14.9 of the General Terms and                   Conditions of Transporter's FERC Gas Tariff, weighting factors                   are as follows: Please provide a range for each factor between                   0 - 1,000. The numbers need not add up to 1,000.
+
+                  _________________ Volume (0 - 1,000)
+
+                  Max Rate ___________________ -1 Rate (0 - 1,000)
+
+G.       i).      Designated Replacement Shipper (if none, write "none"):
+
+                  United Cities Gas Company a, division of Atmos Energy                   Corporation.
+
+         ii).     Terms and conditions agreed to between Releasing Shipper and                   Designated Replacement Shipper:
+
+                               _________ Demand Rate (MMBtu)
+
+                               13,370 Volume MMBtu/Day
+
+         iii)     Releasing Shipper and Designated Replacement Shipper                   understand Designated Replacement Shipper may not receive the                   released capacity if it fails to match any best bid submitted                   by another potential Shipper as provided in Transporter's FERC                   Gas Tariff.
+
+H.       Other terms and conditions (if none, write "none"): _________________
+
+This is a maximum tariff rate, permanent assignment of capacity, not subject to bid.
+
+     "Date                         Releasing Shipper: Associated Natural Gas Co.                                    Charles V. Stevens, Sr. Vice President
+
+                                     ANY, a division of Atmos Energy Corporation
+
+                                   UNITED CITIES GAS
+
+                                   BY: /s/ [ILLEGIBLE]                                        -----------------------------------------                                        Replacement Shipper*
+
+ -May 24, 2000
+
+     Date
+
+     Date                                         Transporter:
+
+                       ARKANSAS WESTERN PIPELINE COMPANY
+
+To be executed, prior to posting by Transporter, by Replacement Shipper only if Replacement Shipper has been designated by Releasing Shipper in G(i) above.
+
+                      BID ON PERMANENTLY RELEASED CAPACITY                       ON ARKANSAS WESTERN PIPELINE COMPANY
+
+A.       United Cities Gas Company a, division of Atmos Energy Corporation          ("Bidder") hereby bids on released capacity ("Capacity") on the system          of Arkansas Western Pipeline Company ("Transporter"). This bid will          remain open until Transporter selects a winning bidder, or notice of          withdrawal is received by Transporter.
+
+B.       The Capacity was released by Associated Natural Gas Company, a division          of Arkansas Western Gas Company.
+
+         (FTS - 01) under Transporter's Rate Schedule FTS,
+
+C.       The transportation rate bid is Maximum Tariff Rate per Dth, not          including commodity charge, fuel, or other applicable fees.
+
+D.       The quantity of Capacity bid for is 13,370 Dth/Day
+
+E.       The term of the Capacity bid for is (Permanent Assignment through          original contract term) Months/Years, beginning June 1, 2000 and ending          at the expiration date of contract FTS - 01.
+
+F.       Receipt and Delivery points (designate primary and/or secondary)
+
+         Receipt Point: "Ozark/AWP Interconnect" Meter 000 10
+
+         Delivery Point: "AWP/ANG Interconnect" Meter 00020 MDQ @ 13,370          MMBtu/d.
+
+
+
+
+
+G.       Other information requested by the Releasing Shipper
+
+         This is a maximum tariff rate, permanent assignment of capacity, not          subject to bid.
+
+H.       Bidder agrees to comply with all terms and conditions of Transporter's          FERC Gas Tariff.
+
+I.       If selected by Transporter as the winning bidder, Bidder will          immediately execute the partial assignment form set forth below.
+
+i        Bidder acknowledges that it has the full authority to make this bid and          bind itself and its agents and/or principals to this bid.
+
+                           UNITED CITIES GAS COMPANY, a division of May 24, 2000
+
+Atmos Energy Corporation ------------------------   -----------------------------------------------------
+
+Date                                             BIDDER
+
+                           By: /s/ GORDON J. ROY
+
+                               Gordon J. Roy                                Vice President
+
+                         PARTIAL ASSIGNMENT OF CAPACITY                       ON ARKANSAS WESTERN PIPELINE COMPANY
+
+A.       United Cities Gas Company a, division of Atmos Energy Corporation          ("Replacement Shipper") has submitted the winning bid for firm capacity          on the system of Arkansas Western Pipeline Company ("Transporter") for          capacity released by Associated Natural Gas Company, a division of          Arkansas Western Gas Company ("Releasing Shipper"), and understands          that its bid of (date) June 1, 2000 has been accepted by Transporter.
+
+B.       Replacement Shipper has read and understands the terms and conditions          under which the Releasing Shipper has permanently released such          capacity on Transporter and hereby contracts for such capacity, in          accordance with its bid, subject to terms and conditions set forth on          Transporter's FERC Gas Tariff and the Service Agreement between the          Releasing Shipper and Transporter (copy of bid and release notice          attached). Replacement Shipper adopts such Service Agreement for the          assigned capacity, and from and after the effective date of the          referenced release shall be fully liable to Transporter for all demand          charges, volumetric charges, surcharges, and other charges arising          under the terms of the Service Agreement with Transporter for such          assigned capacity from and after that effective date.
+
+C.       Releasing Shipper hereby makes a partial assignment of its rights and          obligations under contract number FTS - 01 in accordance with the          attached bid and release notice. This assignment is made in accordance          with Transporter's FERC Gas Tariff.
+
+                               Releasing Shipper: Associated Natural Gas Co.                              Charles V. Stevens, Sr. Vice President                              UNITED GAS a division of Atmos Energy Corporation
+
+                             BY:                                         CITIES COMPANY
+
+                               /s/ GORDON J. ROY                                -------------------------------------------------                                Replacement Shipper Gordon J. Roy, Vice President
+
+                             Transporter:
+
+                             Arkansas Western Pipeline Company

full_contract_txt/AULAMERICANUNITTRUST_04_24_2020-EX-99.8.77-SERVICING AGREEMENT.txt

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+Exhibit 8.77 SERVICING AGREEMENT NATIONWIDE MUTUAL FUNDS Agreement, made as of this day of , 20 between Nationwide Fund Management LLC ("Nationwide"), on behalf of Nationwide Mutual Funds or its surviving entity ("the Trust"), and American United Life Insurance Company, and OneAmerica Securities, Inc., a registered Broker Dealer (collectively referred to as "Servicing Agent," "you" or "your"), whereby you agree to provide certain administrative support services to your customers who may from time to time be the record or beneficial owners of shares (such shares referred to herein as the "Shares") of the funds listed in Appendix A (each a "Fund") subject to the following terms and conditions: 1. Administrative Support Services You agree to provide administrative support services, directly or through an affiliate/designee, to your customers who may from time to time own of record or beneficially a Fund's Shares. Services provided may include, but are not limited to, some or all of the following: (i) processing dividend and distribution payments from the Fund on behalf of customers; (ii) providing periodic statements to your customers showing their positions in the Shares or share equivalents; (iii) arranging for bank wires; (iv) responding to routine customer inquiries relating to services performed by you; (v) providing sub-accounting or sub-transfer agency services with respect to the Shares beneficially owned by your customers or the information necessary for sub-accounting or sub-transfer agency services; (vi) if required by law, forwarding shareholder communications from the Fund (such as proxies, shareholder reports, annual and semi-annual financial statements and dividend, distribution and tax notices) to your customers; (vii) forwarding to customers proxy statements and proxies containing any proposals regarding this Agreement or the Administrative Services Plan related hereto; (viii) aggregating and processing purchase, exchange, and redemption requests from customers and placing net purchase, exchange, and redemption orders for your customers; (ix) providing customers with a service that invests the assets of their accounts in the Shares pursuant to specific or preauthorized instructions; (x) establishing and maintaining customer accounts and records related to customer accounts and/or transactions in the Shares; (xi) assisting customers in changing dividend or distribution options, account designations and addresses; or (xii) other similar services if requested by the Funds. In providing administrative support services, you agree to follow any written guidelines or standards relating to the processing of purchase, exchange and redemption orders for your customers as we may provide to you including the provisions outlined in Appendix B. All purchase and redemption orders will be executed at net asset value, plus or minus any applicable sales charges, in accordance with the terms and conditions of a Fund's then current prospectus and Statement of Additional Information. You represent and warrant that your internal controls for accepting, processing and transmitting purchase, exchange and redemption orders are reasonably designed to ensure that you comply with Section 22(c) of the Investment Company Act of 1940 (the "1940 Act") and Rule 22c-1 thereunder. 2. Office Space You will provide such office space and equipment, telephone facilities and personnel (which may be any part of the space, equipment and facilities currently used in your business, or any personnel employed by you) as may be reasonably necessary or beneficial in order to provide the aforementioned services to customers. March 2015
+
+
+
+
+
+3. Representations About the Funds and Shares Neither you nor any of your officers, employees or agents are authorized to make any representations concerning the Funds or their Shares except those contained in the then-current prospectuses or then-current Statements of Additional Information for such shares, copies of which will be supplied by the Fund's distributor (the "Distributor") to you, or in such supplemental literature or advertising as may be authorized by the Distributor in writing. 4. Independent Contractor and Limited Agency You will be deemed to be an independent contractor, and will have no authority to act as agent for either Nationwide or the Funds in any matter or in any respect. Notwithstanding the foregoing, Nationwide, on behalf of each Fund, appoints you as each Fund's agent for the limited purpose of accepting orders for purchase, redemption and exchange of Shares, and receipt of such orders by you therefore shall constitute receipt by the applicable Fund of such orders for purposes of determining the price per Share at which such orders will be executed, in accordance with Rule 22c-1 under the 1940 Act. Except as specifically set forth herein, nothing in this Agreement will be deemed or construed to make you a partner, employee, representative or agent of Nationwide or any Fund or to create a partnership, joint venture, syndicate or association between you and us. 5. Indemnification By your written acceptance of this Agreement, you agree to and do release, indemnify and hold Nationwide and the Funds harmless from and against any and all direct or indirect liabilities or losses resulting from requests, directions, actions or inactions of or by you or your officers, employees or agents regarding your responsibilities hereunder or the purchase, redemption, transfer or registration of the Shares by or on behalf of customers. In turn, Nationwide, on behalf of the Funds, agrees to and does release, indemnify and hold you and your affiliates harmless from and against any and all direct or indirect liabilities or losses resulting from directions, actions or inactions of or by Nationwide, the Funds, or their respective officers, employees or agents regarding their responsibilities pursuant to this Agreement. 6. Compensation In consideration for the services and facilities provided by you hereunder, Nationwide (on behalf of the Funds) will pay to you, and you will accept as full payment therefore, a fee at the annual rate designated in Appendix A of the average daily net assets of a Fund's Shares owned of record or beneficially by your customers from time to time for which you provide administrative support services hereunder. Such fee will be computed daily and payable monthly by Nationwide within thirty (30) days of receipt from you of a valid invoice (in excel format) that identifies, for each CUSIP of each Fund, the number of sub-accounts, participants or beneficial shareholders serviced by you and such other information as may be necessary to validate the fee payable. The fee rate stated above may be prospectively increased or decreased by the Funds and/or Nationwide, in their sole discretion, at any time upon notice to you. Further, Nationwide or a Fund may, in its sole discretion and without notice, suspend or withdraw the sale of such Shares, including the sale of such Shares to you for the account of any customer(s). Nationwide, in its sole discretion, may arrange for the payment to you of the fees under this Agreement directly by the Funds rather than through Nationwide. Quarterly and Other Reports 2
+
+
+
+
+
+You agree to provide all such information as is reasonably necessary for the Board of Trustees of the Trust to review, at least quarterly, a written report of the amounts of compensation received by you hereunder and the services provided for which you received such compensation. In addition, you will furnish Nationwide with such information as Nationwide or the Funds may reasonably request (including, without limitation, periodic certifications confirming the provision to customers of some or all of the services described herein), and will otherwise cooperate with Nationwide and the Funds (including, without limitation, any auditors designated by the Funds), in connection with the preparation of reports to the Trust's Board of Trustees concerning this Agreement and the monies paid or payable by Nationwide on behalf of the Funds pursuant hereto, as well as any other reports or filings that may be required by law. You agree, upon the reasonable request of Nationwide, to provide access during normal business hours to your facilities and records related to the services provided and the compensation payable hereunder, and to permit Nationwide to review the quality of such services provided and to respond to requests of the Trust's Board of Trustees. Nationwide agrees that all records obtained in connection with access to your facilities is your property and to maintain the confidentiality thereof. In particular, Nationwide agrees that no person having access to such records may use such records or information to solicit, directly or indirectly, any of your customers for any purpose. 7. Non-Exclusivity Both parties may enter into other similar Servicing Agreements with any other person or persons without the other's consent. 8. Representations and Warranties By your written acceptance of this Agreement, you represent, warrant and agree that: (i) all compensation payable to you hereunder is for administrative support services only; (ii) in no event will any of the compensation payable by Nationwide or the services provided by you hereunder be primarily intended to result in the sale of any Shares issued by a Fund; (iii) the compensation payable to you hereunder, together with any other compensation you receive from customers for services contemplated by this Agreement, will to the extent required be disclosed to your customers, and will not be excessive or unreasonable under the laws and instruments governing your relationships with your customers; and (iv) if you are subject to laws governing, among other things, the conduct of activities by federally chartered and supervised banks and other affiliated banking organizations, you will perform only those activities which are consistent with your statutory and regulatory obligations. 9. Termination This Agreement will become effective on the date a fully executed copy of this Agreement is received by Nationwide. This Agreement may be terminated as to the payments made on behalf of the Funds at any time, without the payment of any penalty, by the vote of a majority of the members of the Board of Trustees and who have no direct or indirect financial interest in the operation of the Administrative Services Plan or in any related agreements to the Administrative Services Plan ("Disinterested Trustees") or by a majority of the outstanding voting securities of a Fund, on at least sixty (60) days written notice to the parties to this Agreement. In addition, either you or Nationwide may terminate this Agreement (i) upon the material breach of this Agreement by the other or (ii) for any reason on at least ninety (90) days written notice to the other party. 3
+
+
+
+
+
+In the event this Agreement is terminated as described herein, the indemnification provisions contained in this Agreement shall continue until the possibilities for damages or loss have expired. 10. Notices All notices and other communications to either you or Nationwide will be duly given if mailed, telegraphed, telexed or transmitted by similar telecommunications device to the address contained in the "Acceptance of Agreement" (Section 19) portion of this Agreement. 11. Choice of Law This Agreement will be construed in accordance with the laws of the State of Delaware and is assignable only upon the written consent by all the parties hereto. Amendments will be made only upon written consent by both parties. 12. Board Approval The Administrative Services Plan that relates to this Agreement has been approved by vote of a majority of (i) the Board of Trustees and (ii) the Disinterested Trustees, cast in person at a meeting called for the purpose of voting on such approval. 13. Trust Disclosure The term "Nationwide Mutual Funds" refers to the Trust created by, and the terms "Board of Trustees" and "Trustees" refer to the Trustees, as trustees but not individually or personally, acting from time to time under, the Amended and Restated Agreement and Declaration of Trust made and dated as of October 28, 2004, as has been or may be amended and/or restated from time to time ("Agreement and Declaration of Trust"), and to which reference is hereby made. Nothing herein contained shall be deemed to require the Trust to take any action contrary to the Trust's Agreement and Declaration of Trust or By-Laws, or any applicable statutory or regulatory requirement to which the Trust is subject or by which the Trust is bound, or to relieve or deprive the Trust's Board of Trustees of the Board's responsibility for and control of the conduct of the affairs of the Trust. 14. Complete Agreement This Agreement supersedes and cancels any prior Servicing Agreement with respect to the Shares of a Fund listed in Exhibit A, and may be amended at any time and from time to time by written agreement of the parties hereto. Notwithstanding the foregoing, Nationwide may amend or modify the Exhibits incorporated herein, as provided throughout this Agreement, by providing new exhibits to you. However, such amendment shall only become effective and part of this Agreement and be considered binding upon the first transaction placed by you following receipt of the new exhibits. 15. Privacy Program Each party to this Agreement agrees to protect Customer Information (defined below) and to comply as may be necessary with requirements of the Gramm-Leach-Bliley Act, the relevant state and federal regulations pursuant thereto, including Regulation S-P, and state privacy laws (all the foregoing referred to as "Privacy Law"). 4
+
+
+
+
+
+Customer Information means any information contained on an application of a customer ("Customer") of a Fund or other form and all nonpublic personal information about a Customer that a party receives from the other party. Customer Information includes, by way of example and not limitation, name, address, telephone number, social security number, date of birth and personal financial information. The parties shall establish and maintain safeguards against the unauthorized access, destruction, loss or alteration of Customer Information in their control, which are no less rigorous than those maintained by a party for its own information of a similar nature. In the event of any improper disclosure of any Customer Information, the party responsible for the disclosure will immediately notify the other party. The Servicing Agent represents that it has implemented and maintains a comprehensive written information security program that contains appropriate security measures to safeguard Customer Information that the Servicing Agent receives, stores, maintains, processes or otherwise accesses in connection with the provision of services hereunder, including protecting such Customer Information against cyber attack. The provisions of this Privacy Program section shall survive the termination of the Agreement. 16. Anti-Money Laundering Program Nationwide and the Funds will rely upon you to establish a written Anti-Money Laundering Program (the "Program") to include policies, procedures, and controls that comply with the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA Patriot Act) of 2001, ("the ACT") and the Bank Secrecy Act of 1970 ("BSA"). Each party to this Agreement acknowledges, represents, and warrants that it has adopted and implemented an Anti-Money Laundering Program that complies and will continue to comply with all aspects and requirements of the ACT, the BSA, and all other applicable anti-money laundering laws and regulations. Upon request, you shall promptly certify to having such Program that complies with and continues to comply with all aspects and requirements of the ACT, the BSA, and all other applicable federal, state and local anti-money laundering laws and regulations. Your Program shall include, and Nationwide and the Funds shall rely upon, your policies, procedures and controls to, among other things, (i) verify the identity (due diligence) of your customers, (ii) maintain records of the information used to identify your customers, (iii) determine if your customer appears on lists of known or suspected terrorists or associated with known or suspected terrorist organizations (said customer hereinafter referred to as a "Prohibited Customer"), and (iv) to ensure that Prohibited Customers and foreign shell banks do not maintain investments in any Fund. Your Program shall also comply with the Customer Identification Program ("CIP") for customers who open accounts on or after October 1, 2003, and as such, shall among other matters provide for the release of customer information to law enforcement agencies, and the filing of Suspicious Activity Reports ("SARs"), as and if applicable, and in accordance with the ACT. In addition, your Program also shall include procedures for fulfilling the currency reporting requirements of the ACT and the BSA, as and if applicable. The provisions of this Anti-Money Laundering section shall survive the termination of the Agreement. 5
+
+
+
+
+
+18. Shareholder Information 18.1 Agreement to Provide Information. You agree to provide the Funds, upon written request, the taxpayer identification number ("TIN"), if known, of any or all Shareholder(s) of an account and the amount, date, name or other identifier of any registered representative(s) associated with the Shareholder(s) or account (if known), and transaction type (purchase, redemption, transfer, or exchange) of every purchase, redemption, transfer, or exchange of Shares held through an account maintained by you during the period covered by the request. 18.1.1 Period Covered by Request. Requests must set forth a specific period, not to exceed 12 months from the date of the request, for which transaction information is sought. A Fund may request transaction information older than 12 months from the date of the request as it deems necessary to investigate compliance with policies established by the Funds for the purpose of eliminating or reducing any dilution of the value of the outstanding shares issued by a Fund. 18.1.2 Form and Timing of Response. You agree to transmit the requested information that is on your books and records to the Fund or its designee promptly, but in any event not later than five (5) business days, after receipt of a request. If the requested information is not on your books and records, you agree to: (i) provide or arrange to provide the requested information from Shareholders who hold an account with an indirect intermediary; or (ii) if directed by the Fund, block further purchases of Fund Shares from such indirect intermediary. In such instance, you agree to inform the Fund whether you plan to perform (i) or (ii). Responses required by this paragraph must be communicated in writing and in a format mutually agreed upon by the parties. To the extent practicable, the format for any transaction information provided to a Fund should be consistent with the NSCC Standardized Data Reporting Format. For purposes of this provision, an "indirect intermediary" has the same meaning as in SEC Rule 22c-2 under the 1940 Act. 18.1.3 Limitations on Use of Information. The Funds agree not to use the information received for marketing or any other similar purpose without your prior written consent. 18.2 Agreement to Restrict Trading. You agree to promptly and fully cooperate with any reasonable request made by the Fund to address market timing or excessive trading strategies identified by Nationwide in accordance with the applicable provisions of Rule 22c-2 and agree to restrict or prohibit further purchases or exchanges of Shares by a Shareholder that has been identified by such Fund as having engaged in transactions of the Fund's Shares (directly or indirectly through your account) that violate policies established by the Fund for the purpose of eliminating or reducing any dilution of the value of the outstanding Shares issued by the Fund. 18.2.1 Form of Instructions. Instructions must include the TIN, if known, and the specific restriction(s) to be executed. If the TIN is not known, the instructions must include an equivalent identifying number of the Shareholder(s) or account(s) or other agreed upon information to which the instruction relates. 18.2.2 Timing of Response. You agree to execute instructions as soon as reasonably practicable, but not later than five business days after your receipt of the instructions. 6
+
+
+
+
+
+18.2.3 Confirmation by You. You must provide written confirmation to the Fund that instructions have been executed. You agree to provide confirmation as soon as reasonably practicable, but not later than ten business days after the instructions have been executed. 18.3 Definitions. For purposes of this paragraph 18: 18.3.1 The term "Fund" includes a Fund's distributor and a Fund's transfer agent. The term not does include any "excepted funds" as defined in SEC Rule 22c-2(b) under the 1940 Act. 18.3.2 The term "Shares" means the interest of Shareholders corresponding to the redeemable securities of record issued by a Fund under the 1940 Act that are held by you. 18.3.3 The term "Shareholder" means the beneficial owner of Shares, whether the Shares are held directly or by you in nominee name. 18.3.4 The term "written" includes electronic writings and facsimile transmissions. [The remainder of this page is intentionally left blank.] 7
+
+
+
+
+
+19. Acceptance of Agreement If you agree to be legally bound by the provisions of this Agreement, please sign a copy of this Agreement where indicated below and promptly return it to Nationwide at the address below: Nationwide Fund Management LLC Attention: Fund Administration 1000 Continental Drive, Suite 400 King of Prussia, PA 19406 This Agreement will become effective on the date a fully executed copy of this Agreement is received by Nationwide. Accepted by: Name Title Nationwide Fund Management LLC Date: Accepted and Agreed to: By: Name: Title: Company: Date: 8
+
+
+
+
+
+APPENDIX A TO SERVICING AGREEMENT Nationwide Mutual Funds Funds of Nationwide Mutual Funds Class R6 and Institutional Service Class shares of all Funds of Nationwide Mutual Funds as offered in the Fund's current prospectus. Administrative Services Fees Share Class Rate (Bps) Institutional Service Class 25 Class R6 0 (no fee) Acknowledgement: Servicing Agent: Nationwide Fund Management LLC 1000 Continental Drive Suite 400 King of Prussia, PA 19406 x x By: By:
+
+
+
+
+
+APPENDIX B FUND/SERV PROCESSING PROCEDURES AND MANUAL PROCESSING PROCEDURES The purchase, redemption and settlement of Shares of a Fund will normally follow the Fund/SERV-Defined Contribution Clearance and Settlement Service ("DCCS") Processing Procedures below and the rules and procedures of the SCC Division of the National Securities Clearing Corporation ("NSCC") shall govern the purchase, redemption and settlement of Shares of the Funds through NSCC by the Servicing Agent. In the event of equipment failure or technical malfunctions or the parties' inability to otherwise perform transactions pursuant to the FUND/SERV Processing Procedures, or the parties' mutual consent to use manual processing, the Manual Processing Procedures below will apply. It is understood and agreed that, in the context of Section 22 of the 1940 Act and the rules and public interpretations thereunder by the staff of the Securities and Exchange Commission (SEC Staff), receipt by the Servicing Agent of any Instructions from the Client-shareholder prior to the Close of Trade on any Business Day shall be deemed to be receipt by the Funds of such Instructions solely for pricing purposes and shall cause purchases and sales to be deemed to occur at the Share Price for such Business Day, except as provided in 4(c) of the Manual Processing Procedures. Each Instruction shall be deemed to be accompanied by a representation by the Servicing Agent that it has received proper authorization from each Client-shareholder whose purchase, redemption, account transfer or exchange transaction is effected as a result of such Instruction. Fund/SERV-DCCS Processing Procedures 1. On each business day that the New York Stock Exchange (the "Exchange") is open for business on which the Funds determine their net asset values ("Business Day"), Nationwide shall accept, and effect changes in its records upon receipt of purchase, redemption, exchange, account transfer and registration instructions from the Servicing Agent electronically through Fund/SERV ("Instructions") without supporting documentation from the Client-shareholder. On each Business Day, Nationwide shall accept for processing any Instructions from the Servicing Agent and shall process such Instructions in a timely manner. 2. Nationwide shall perform any and all duties, functions, procedures and responsibilities assigned to it under this Agreement and as otherwise established by the NSCC. Nationwide shall conduct each of the foregoing activities in a competent manner and in compliance with (a) all applicable laws, rules and regulations, including NSCC Fund/SERV-DCCS rules and procedures relating to Fund/SERV; (b) the then-current Prospectus of a Fund; and (c) any provision relating to Fund/SERV in any other agreement of Nationwide that would affect its duties and obligations pursuant to this Agreement. 3. Confirmed trades and any other information provided by Nationwide to the Servicing Agent through Fund/SERV and pursuant to this Agreement shall be accurate, complete, and in the format prescribed by the NSCC. 4. Trade, registration, and broker/dealer information provided by the Servicing Agent to Nationwide through Fund/SERV and pursuant to this Agreement shall be accurate, complete and, in the
+
+
+
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+format prescribed by the NSCC. All Instructions by the Servicing Agent regarding each Fund/SERV Account shall be true and correct and will have been duly authorized by the registered holder. 5. For each Fund/SERV transaction, including transactions establishing a Client-shareholder account with Nationwide, the Servicing Agent shall provide the Funds and Nationwide with all information necessary or appropriate to establish and maintain each Fund/SERV transaction (and any subsequent changes to such information), which the Servicing Agent hereby certifies is and shall remain true and correct. The Servicing Agent shall maintain documents required by the Funds to effect Fund/SERV transactions. The Servicing Agent certifies that all Instructions delivered to Nationwide on any Business Day shall have been received by the Servicing Agent from the Client-shareholder by the close of trading (generally 4:00 p.m. Eastern Time ("ET")) on the Exchange (the "Close of Trading") on such Business Day and that any Instructions received by it after the Close of Trading on any given Business Day will be transmitted to Nationwide on the next Business Day. Manual Processing Procedures 1. On each Business Day, the Servicing Agent may receive Instructions from the Client-shareholder for the purchase or redemption of shares of the Funds based solely upon receipt of such Instructions prior to the Close of Trading on that Business Day. Instructions in good order received by the Servicing Agent prior to the close of trading on any given Business Day (generally, 4:00 p.m. ET (the "Trade Date") and transmitted to Nationwide by no later than 9:30 a.m. ET the Business Day following the Trade Date ("Trade Date plus One" or "TD+1"), will be executed at the NAV-based public offering price ("Share Price") of each applicable Fund, determined as of the Close of Trading on the Trade Date. 2. By no later than 6:00 p.m. ET on each Trade Date ("Price Communication Time"), Nationwide will use its best efforts to communicate to the Servicing Agent via electronic transmission acceptable to both parties, the Share Price of each applicable Fund, as well as dividend and capital gain information and, in the case of Funds that credit a daily dividend, the daily accrual for interest rate factor (mil rate), determined at the Close of Trading on that Trade Date. 3. As noted in Paragraph 1 above, by 9:30 a.m. ET on TD+1 ("Instruction Cutoff Time") and after the Servicing Agent has processed all approved transactions, the Servicing Agent will transmit to Nationwide via facsimile, telefax or electronic transmission or system-to-system, or by a method acceptable to the Servicing Agent and Nationwide, a report (the "Instruction Report") detailing the Instructions that were received by the Servicing Agent prior to the Funds' daily determination of Share Price for each Fund (i.e., the Close of Trading) on Trade Date. (a) It is understood by the parties that all Instructions from the Client-shareholder shall be received and processed by the Servicing Agent in accordance with its standard transaction processing procedures. The Servicing Agent or its designees shall maintain records sufficient to identify the date and time of receipt of all Client-shareholder transactions involving the Funds and shall make or cause to be made such records available upon reasonable request for examination by the Funds or its designated representative or, at the request of the Funds, by appropriate governmental authorities. Under no circumstances shall the Servicing Agent change, alter or modify any Instructions received by it in good order.
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+(b) Following the completion of the transmission of any Instructions by the Servicing Agent to Nationwide by the Instruction Cutoff Time, the Servicing Agent will verify that the Instruction was received by Nationwide and trades are pending by utilizing a remote terminal or such other method acceptable to Nationwide. (c) In the event that an Instruction transmitted by the Servicing Agent on any Business Day is not received by Nationwide by the Instruction Cutoff Time, due to mechanical difficulties or for any other reason beyond the Servicing Agent's reasonable control, such Instruction shall nonetheless be treated by Nationwide as if it had been received by the Instruction Cutoff Time, provided that the Servicing Agent retransmits such Instruction electronically (by facsimile transmission or other means mutually agreed upon) to Nationwide and such Instruction is received by Nationwide's (or the Distributor's) financial control representative no later than 9:30 a.m. ET on TD+1. In addition, the Servicing Agent will place a phone call to a financial control representative of Nationwide (or the Distributor) prior to 9:00 a.m. ET on TD+1 to advise Nationwide (or the Distributor) that a facsimile transmission concerning the Instruction is being sent. (d) With respect to all Instructions, Nationwide (or the Distributor's financial control representative) will manually adjust a Fund's records for the Trade Date to reflect any Instructions sent by the Servicing Agent. (e) By no later than 4:00 p.m. on TD+1, and based on the information transmitted to Nationwide (or the Distributor's financial control representative) pursuant to Paragraph 3(c) above, the Servicing Agent will use its best efforts to verify that all Instructions provided to Nationwide (or the Distributor's financial control representative) on TD+1 were accurately received and that the trades for each Account were accurately completed and the Servicing Agent will use its best efforts to notify Nationwide of any discrepancies. 4. As set forth below, upon the timely receipt from the Servicing Agent of the Instructions, the Fund will execute the purchase or redemption transactions (as the case may be) at the Share Price for each Fund computed as of the Close of Trading on the Trade Date. (a) Except as otherwise provided herein, all purchase and redemption transactions will settle on TD+1. Settlements will be through net Federal Wire transfers to an account designated by a Fund. In the case of Instructions which constitute a net purchase order, the Servicing Agent shall, by 1:00 p.m. ET on TD+1, remit funds to the Fund's custodian in the amount necessary to cover such net purchase order. In the case of Instructions which constitute a net redemption order, Nationwide shall, by 1:00 p.m. ET on TD+1, remit funds to the Servicing Agent in the amount necessary to cover such net redemption order, provided that the Fund reserves the right to (i) delay settlement of redemptions for up to seven (7) Business Days after receiving a net redemption order in accordance with Section 22 of the 1940 Act and Rule 22c-1 thereunder, or (iii) suspend redemptions pursuant to the 1940 Act or as otherwise required by law. Settlements shall be in U.S. dollars and a Fund may pay redemption proceeds in whole or in part by a distribution in-kind of readily marketable securities that it holds in lieu of cash in conformity with applicable law or regulations.
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+(b) The Servicing Agent or such other party as may be designated, as record owner of each account ("Record Owner") will be provided with all written confirmations required under federal and state securities laws. (c) On any Business Day when the Federal Reserve Wire Transfer System is closed, all communication and processing rules will be suspended for the settlement of Instructions. Instructions will be settled on the next Business Day on which the Federal Reserve Wire Transfer System is open. The original TD+1 Settlement Date will not apply. Rather, for purposes of this Paragraph 4(c) only, the Settlement Date will be the date on which the Instruction settles. (d) The Servicing Agent shall, upon receipt of any confirmation or statement concerning the accounts, promptly verify by use of the terminal or by such other method acceptable to Nationwide and the Servicing Agent the accuracy of the information contained therein against the information contained in the Servicing Agent's internal record-keeping system and shall promptly, but in no event not more than seven days, advise Nationwide in writing of any discrepancies between such information. Nationwide and the Servicing Agent shall cooperate to resolve any such discrepancies as soon as reasonably practicable. Indemnification In the event of any error or delay with respect to both the Fund/SERV Processing Procedures and the Manual Processing Procedures outlined in Exhibit B herein: (i) which is caused by the Funds or Nationwide, Nationwide shall make any adjustments on the Funds' accounting system necessary to correct such error or delay and the responsible party or parties shall reimburse the Client-shareholder and the Servicing Agent, as appropriate, for any losses or reasonable costs incurred directly as a result of the error or delay but specifically excluding any and all consequential punitive or other indirect damages or (ii) which is caused by the Servicing Agent or by any Client-shareholder, Nationwide shall make any adjustment on the Funds' accounting system necessary to correct such error or delay and the affected party or parties shall be reimbursed by the Servicing Agent for any losses or reasonable costs incurred directly as a result of the error or delay, but specifically excluding any and all consequential punitive or other indirect damages. In the event of any such adjustments on the Funds' accounting system, the Servicing Agent shall make the corresponding adjustments on its internal record-keeping system. In the event that errors or delays with respect to the Procedures are contributed to by more than one party hereto, each party shall be responsible for that portion of the loss or reasonable cost which results from its error or delay. All parties agree to provide the other parties prompt notice of any errors or delays of the type referred to herein and to use reasonable efforts to take such action as may be appropriate to avoid or mitigate any such costs or losses.

full_contract_txt/AURASYSTEMSINC_06_16_2010-EX-10.25-STRATEGIC ALLIANCE AGREEMENT.txt

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+STRATEGIC ALLIANCE AGREEMENT    This STRATEGIC ALLIANCE AGREEMENT (the "Agreement") is entered into as of March 18, 2010 (the "Effective Date"), between AURA  SYSTEMS INC., a Delaware Corporation ("Aura") and ZANOTTI EAST INC., a Massachusetts Corporation ("Zanotti").    WHEREAS, Aura has invented, manufactures and distributes a unique, integrated electromagnetic mobile power generation system capable of  delivering on-demand both AC and DC power for numerous end-uses, including without limitation, all-electric transport refrigeration (the  "AuraGen");     WHEREAS, the AuraGen is the subject of substantial proprietary information, including but not limited to patents, trademarks, trade secrets,  know-how, and confidential information owned by Aura;    WHEREAS, Zanotti is a world-wide leading manufacturer and distributor of transport refrigeration systems and is desirous of expanding its market  share within the United States, and    WHEREAS, Zanotti and Aura are desirous of incorporating the AuraGen power system with various Zanotti transport refrigeration systems to be  sold by Aura to end-users in the United States as an integrated all-electric transport refrigeration solution;    NOW, THEREFORE, in consideration of their mutual covenants and obligations contained herein, and the mutual benefits to be derived herefrom,  Aura and Zanotti (collectively the "Parties"), intending to be legally bound, do hereby covenant and agree as follows:    Article 1:  Definitions    1.1 The term "AETRU System" means an integrated all-electric vehicle refrigeration system comprising of Product as the refrigeration mechanism  and the AuraGen as the power-supply.     1.2 The term "Confidential Information" means all know-how, formulations, recipes, specifications, catalogs, books, price books, maintenance,  parts and service manuals, data sheets, sales, service and technical bulletins, customer lists, sales and marketing programs, price lists, cost data,  sales aids, such as filmstrips and recordings, and all other publications and information, whether or not reduced to writing, relating to the  formulation, manufacture, use, marketing and sale of the AuraGen and/or the Products, as well as any other information which may be divulged by  one party under this Agreement to the other in the course of its performance of this Agreement, which is marked as Confidential or which is  disclosed under circumstances that reasonably place the recipient on notice of the confidentiality of the information. Confidential Information does  not, however, include any information which the recipient can establish (i) was publicly known and made generally available in the public domain  prior to the time of disclosure by the discloser; (ii) becomes publicly known and made generally available after disclosure by the discloser to  recipient through no fault or breach of recipient; (iii) is already in the possession of recipient without restriction on use or disclosure at the time of  disclosure by discloser as shown by recipient's files and records prior to the time of the
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+  disclosure; (iv) is obtained by recipient lawfully and without restriction on use or disclosure from a third party without a breach of such third  party's obligations of confidentiality; or (v) is independently developed by recipient without use of or reference to discloser's Confidential  Information, as shown by recipient's files and records.     1.3 The term "Field of Use" means exclusively transport refrigeration systems for vehicles and trailers.     1.4 The term "Products"  means collectively those transport refrigeration systems listed in Exhibit A attached hereto, as well as any future  modifications, enhancements or improvements thereto.     1.5 The term "Proprietary Rights"  means all Technology, Trademarks, data, inventions, information (including, without limitation, Confidential  Information), processes, know-how, trade secrets, sketches, prototypes, notebooks, papers, drawings, formulae (including copies or extracts  thereof) and similar intellectual property rights which the respective parties have or may hereafter develop and which are necessary or useful for  the development, manufacture, or sale of the AuraGen, the Products, or any components of the Products and/or AuraGen. Further, Proprietary  Rights shall include all analyses, specifications, proposals, reports or other information, data or documents (whether in raw, preliminary or final  form) and all inventions, discoveries, modifications and improvements, whether or not patentable, which: (a) are concerned in some manner with,  but not directed to the AuraGen, the Products or any components thereof; or (b) pertain to processes, procedures, methods, and the like  manufacturing, assembling or servicing of the AuraGen or Products.     1.6 The term "Technology" means all patent rights concerning each and every patent, whether U.S. or foreign, owned by or licensed to Company  and any associated Aura Proprietary Rights appurtenant thereto which are necessary, used or useful to develop, manufacture, or sell the Products  or any of the components of the Products. Aura Technology shall further mean any future modifications, enhancements or improvements to the  technology embodied in the patents owned or licensed by Company, the Products, or the Aura Proprietary Rights.     1.7 The term "Territory" means exclusively the United States of America and Canada.     1.8 The term "Trademarks" means all those trademarks, service marks, designs, logos, slogans and trade names belonging or licensed to Aura  and/or Zanotti, worldwide.     Article 2  Grant of Rights    2.1 Appointment. Pursuant to the terms and conditions set forth in this Agreement, Aura appoints Zanotti as its exclusive supplier of the Products  within the Territory and Field of Use and Zanotti hereby accepts such appointment. In order to maintain the exclusivity granted hereunder, Zanotti  shall provide Aura with orders for a minimum of (i) one thousand (1,000) AETRU Systems during the first twenty-four (24) months of this  Agreement and (ii) seven hundred and fifty (750) AETRU Systems per year thereafter for so long as this Agreement remains in effect (the  "Minimum Order"). In the event that Zanotti fails to secure purchases
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+  amounting to the Minimum Order for any particular period, the exclusive supplier rights granted pursuant to this Article 2 shall become non- exclusive commencing immediately following such period in which the Minimum Order was not achieved and Aura shall have full discretion to  purchase or otherwise obtain Product from sources other than Zanotti. Aura shall serve as seller for all orders for AETRU Systems (whether such  orders are provided by Zanotti or otherwise) and shall directly invoice all buyers and collect the purchase price for all AETRU Systems sold.    Article 3  Terms and Conditions    3.1 Ordering of Products. Within thirty (30) days from the Effective Date hereof, Zanotti shall deliver to Aura a minimum total of twelve (12)  Products to be delivered to Aura's facilities McDonough, Georgia, of such type as mutually agreed by the Parties (the "Initial Order"). All  purchases and delivery of Products shall be made pursuant to separate individual purchase orders issued by Aura to Zanotti consistent with the  terms of this Agreement. If any term of a purchase order is inconsistent with this Agreement, then this Agreement shall govern to the extent of any  such inconsistency. Except with respect to the Initial Order, Aura shall place all purchase orders for Products at least forty-five (45) days prior to  the requested delivery date.    3.2 Warehousing. Zanotti hereby agrees that Aura may, at any given time, store up to two (2) AuraGen systems in such Zanotti facilities as Aura  may designate from time to time. Zanotti shall not charge Aura any fee or cost in connection with such warehousing. Zanotti shall not acquire any  interest in or right to any property warehoused pursuant to this Section 3.2 by virtue of such warehousing and such property shall remain the sole  and exclusive property of Aura (or its respective owner) at all times. It is expressly understood and agreed by the Parties that Zanotti shall incur no  liability for any property stored in its facilities pursuant to this Section 3.2 (including without limitation risk of loss, theft or damage) and that all  risk of loss and/or damage with respect to any such warehoused property shall belong solely to Aura. Aura shall have full access to all AuraGen  systems and/or other Aura equipment warehoused in any Zanotti facilities during normal business hours and at all other reasonable times.    3.3 Pricing. Throughout the first consecutive twelve (12) months of this Agreement, all Products shall be sold to Aura by Zanotti at those prices as  listed in Exhibit B, attached hereto. Prior to each twelfth month anniversary of the Effective Date of this Agreement, the Parties shall jointly  reevaluate the Product price list and shall mutually agree as to prices for the upcoming twelve-month period. In accordance with Section 3.6 below,  at no time shall any Product price exceed the lowest price for which Zanotti sells such Product (or substantial equivalent thereof) in similar  quantities to any third party. Notwithstanding anything to the contrary contained in any applicable provision herein, Zanotti shall be permitted to  adjust the price of the Products prior to each twelfth month anniversary of the Effective Date to reflect any actual fluctuation in the Consumer Price  Index (CPI) during the prior twelve-month period. In the event that the final price of any Product to be sold to Aura by Zanotti pursuant to this  Agreement upto, equal or exceeds 150% of the final price of any substantially-similar third part produc, Aura shall notify Zanotti of this lower price  and provide Zanotti with the opportunity to match such price with respect to such Product. If, within five (5) business days of receipt of such  notice from Aura, Zanotti does not agree to match such price, the exclusive supplier rights granted pursuant to
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+  Article 2 above shall, upon Aura's sole election, immediately become non-exclusive with respect to such specific Product to which the lower price  applies and Aura shall have full discretion to purchase or otherwise obtain such Product from sources other than Zanotti.    3.4 Payment. Aura shall remit payment to Zanotti for the invoiced price of any given Product within the earlier of: (i) fifteen (15) business days  following Aura's receipt and acceptance of payment from its customer for such AETRU System into which such Product is incorporated; or (ii)  forty-five (45) calendar days from the date of Aura's shipment to a customer of such AETRU System into which such Product is incorporated.  Aura shall have no obligation to remit payment for any Product before fifteen (15) days following sale to a third-party of such Product nor shall  Aura have any obligation to remit payment for any Product not sold by Aura.    3.5 Shipment, Delivery and Risk of Loss. Unless otherwise specifically agreed by the Parties, all Products delivered to Aura from Zanotti pursuant  to this Agreement shall be F.C.A., Aura's designated facility. From time to time, the parties may enter into other shipping arrangements. However,  no shipping arrangements shall affect or alter in any way the provisions of this Section with respect to transfer of title, responsibility of safe  carriage and risk of loss.
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+  3.6 Most Favored Nation. During the term of this Agreement, Zanotti agrees that Aura shall be allowed the full benefit of any and all lower prices  and/or any more favorable terms and/or conditions ("MFN" Terms) contained in any other agreement entered into by Zanotti for the sale of any  product substantially similar to the Product in the same or lesser quantities described in this Agreement to third parties. Zanotti shall notify Aura  in writing of any such MFN Terms within fifteen (15) calendar days after agreeing thereto, and shall make the MFN Terms available to Aura as of  the effective date of such agreement and thereafter for the greater of (i) three (3) months or (ii) such time that the MFN Terms remain in effect.    3.7 End-User Warranty. At all times during the Term of this Agreement, Zanotti shall warrant the Products to purchasers of AETRU Systems in  accordance with the terms of its standard warranty attached hereto as Exhibit "C"  ("End User Warranty"), as such End User Warranty may be  modified from time to time by Zanotti, provided however that at no time shall such End User Warranty provide for a warranty coverage period of  less than thirty-six (36) months from the time of purchase by the initial end-user. A copy of the End User Warranty shall be included as part of the  packaging included with all Product delivered to Aura and Aura shall distribute each Product with all warranty cards, a copy of the End User  Warranty and all other
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+  (a) Deliveries may be made in partial shipments. With respect to all deliveries (partial or otherwise) Zanotti shall invoice each Product  separately.
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+  (b) Title and risk of loss shall pass to Aura at the time the Products are tendered by Zanotti to the initial carrier and Aura alone shall be  responsible for all freight, customs duties, insurance or other shipping costs.
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+  (c) In the absence of specific instructions from Aura, Zanotti shall select a reasonable carrier but shall not thereby assume any liability in  connection with shipment, nor shall the carrier be construed to be the agent of Zanotti.
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+  packaging materials intact. Additionally, Zanotti shall offer to end-users the option to purchase extended warranty coverage for an additional  twenty-four (24) months - making the total warranty period sixty (60) months.     Article 4  Additional Obligations    4.1 Compliance with Law. Each party shall at all times comply with the provisions of all applicable laws and the rules and regulations thereunder,  and refrain from engaging in any illegal, unfair or deceptive trade practices or unethical business practices whatsoever with respect to the  promotion and sale or service of Products.     4.2 Recalls. Zanotti shall maintain records of all Products sold by Zanotti and shall immediately alert Aura in the event that Zanotti becomes aware  of any defect in or hazard posed by any Product. If Aura, any governmental agency or other proper authority issues a product recall or product  advisory of any of the Products, Zanotti agrees to cooperate with Aura (i) in contacting purchasers during the course of any such product  advisories, recalls and complaints, (ii) in communicating to such purchasers such information or instructions as Aura may reasonably desire be  transmitted to such purchasers, (iii) in obtaining the removal of all such recalled Products from customers and (iv) in disposing of such recalled  Product as Aura so directs. Aura agrees to reimburse Zanotti for all costs and expenses incurred by Zanotti in connection with such Product  advisories, recalls and complaints, unless such advisory, recall or complaint is due to the fault or negligence of Zanotti, its representatives or  affiliates.     4.3 Press Releases. In the event any party desires to issue any press release or public announcement concerning any provisions of this Agreement  or the transactions contemplated hereby, such party shall so advise the other party hereto, and the parties shall thereafter use commercially  reasonable efforts to cause a mutually agreeable release or announcement to be issued. Neither party will publicly disclose or divulge any  provisions of this Agreement or the transactions contemplated hereby without the other party's written consent, except as way be required by  applicable law, including applicable securities laws or stock exchange regulations, and except for communications to such party's employees and  professional advisors.     4.4 Joint Training. Zanotti and Aura shall jointly schedule periodic training sessions at mutually agreed reasonable intervals with respect to  installation and maintenance of the AETRU Systems, which Aura and Zanotti shall make available to AETRU System dealers and service  providers. Zanotti and Aura shall each bear all living and travel expenses associated with their respective personnel during such training sessions  but shall split equally all other costs associated with such training sessions such as, without limitation, facility or equipment rentals - such costs to  be mutually agreed to in advance by the Parties. Upon mutual agreement by the Parties, AETRU System dealers and service providers may be  charged attendance or other fees in connection with training and/or certification, provided however, that in the event that any such fees are  assessed, such fees shall be divided equally among the Parties.    4.5 Joint Sales and Marketing Plan. Within thirty (30) days following the Effective Date of this Agreement, Aura and Zanotti shall develop both a  joint marketing plan and a joint sales plan for cooperative worldwide marketing and sales of AETRU Systems. Any such agreement
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+  reached between Zanotti and Aura regarding such worldwide sales and marketing shall prohibit competition among Zanotti and Aura with regard  to AETRU Systems and shall be memorized in a separate agreement between the Parties.    4.6 Confidentiality. Each party shall hold all Confidential Information in strict confidence and will in no way disclose or provide such Confidential  Information to any person or entity, except (i) with the prior written approval of the owner of such Confidential Information or (ii) as expressly  permitted under this Agreement. Each party shall take all necessary measures to prevent such disclosure by its present and future employees,  officers, agents, subsidiaries, dealers or consultants during the term of this Agreement and thereafter. Each party shall give prompt notice to the  other party of any unauthorized disclosure or use of Confidential Information and must cooperate fully with such other party in remedying each  unauthorized use or disclosure. Neither receipt of notice of disclosure under this Section 4.6 nor any action taken by the owner of the improperly  disclosed Confidential Information to assist in rectifying an unauthorized disclosure or use of Confidential Information shall constitute a waiver by  such party of any breach by the disclosing party of this Article 4. The Parties each expressly acknowledge that all Confidential Information shall  remain the sole property of the respective owning party and that all documents and other tangible media that embody any such Confidential  Information must be, at such owning party's option, either promptly returned or destroyed, except as otherwise may be required from time to time  by applicable law. Confidential Information in documentary or other tangible form, and all copies of it, must be returned promptly to the owning  party upon termination of this Agreement or, as applicable, upon earlier expiration of a party's rights thereto in accordance with this Agreement.  Each party further acknowledges and agrees that because: (i) an award of money damages in inadequate to compensate a party for any breach of  this Article 4; and (ii) any breach of this Article 4 will causes irreparable harm, if there is a breach or threatened breach of this Article 4 by either  party, the non-breaching party shall be entitled to equitable relief, including injunctive relief and specific performance, without proof of actual  damages. The covenants and agreements contained herein with respect to any Confidential Information deemed a trade secret under applicable law  shall continue until the information ceases to be a trade secret under applicable law. The obligations with respect to all other Confidential  Information shall continue for a period of five (5) years following termination of this Agreement.    Article 5  Representations and Warranties    5.1 Representations and Warranties by Aura:    Aura represents and warrants to Zanotti that, as of the date of this Agreement:
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+  (a) Power and Authority: Aura has the corporate power and authority to enter into and to carry out the terms and provisions of this  Agreement; and this Agreement is the legal, valid and binding obligation of Aura and is enforceable against Aura in accordance  with its terms.
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+  (b) No Conflicting Agreement: Aura has not granted to any person other than Zanotti any right, title or interest or entered into any agreement  which is in conflict with or inconsistent with any of the terms or conditions of this Agreement.
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+  5.2 Representations and Warranties by Zanotti:     Zanotti represents and warrants to Aura that, as of the date of this Agreement:
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+   Article 6  Intellectual Property    6.1 During the Term of this Agreement and subject to its provisions, Aura grants to Zanotti a limited, non-exclusive license to use Aura's  Trademarks to identify and promote the sale of the AETRU System within the Field of Use in the Territory and Zanotti grants to Aura a limited,  non-exclusive license to use Zanotti's Trademarks to identify and promote the Products used in conjunction with the AETRU System within the  Field of Use in the Territory. Zanotti may not use Trademarks belonging or licenses to Aura in connection with the sale or promotion of any  goods, services, products, equipment or process other than the Products within the Field of Use in the Territory. Aura may not use Trademarks  belonging or licensed to Zanotti in connection with the sale or promotion of any goods, services, products, equipment or process other than the  Products within the Field of Use in the Territory. Upon termination of this Agreement, Zanotti and Aura shall each promptly cease using any  trademarks belonging to the other Party.
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+  (c) Litigation: There are no actions or proceedings pending, or to Aura's knowledge, threatened, which would prevent or make  unlawful the consummation of the transactions contemplated by this Agreement.
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+  (d) Infringement: Aura has no actual knowledge, that the AuraGen System or, as assembled the AETRU System conflicts with,  violate or infringe any rights of any third party.
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+  (a) Power and Authority: Zanotti has the corporate power an authority to enter into and to carry the terms and provisions of this  Agreement; and this Agreement is the legal, valid and binding obligation of Zanotti and is enforceable against Zanotti in  accordance with its terms.
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+  (b) No Conflicting Agreements: The execution, delivery and performance of this Agreement by Zanotti will not conflict with or  violate any agreements or understandings to which Zanotti is a party or by which it may be bound.
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+  (c) Litigation: There are no actions or proceedings pending, or to Zanotti's knowledge, threatened, which would prevent or make  unlawful the consummation of the transactions contemplated by this Agreement.
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+  (d) Infringement: Zanotti has no actual knowledge, that any Product conflicts with, violates or infringes any rights of any third  party.
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+  6.2 Trademark Markings. The Parties agree that each AETRU System shall prominently bear appropriate Aura and Zanotti Trademarks and  shall clearly indicate the respective Parties' ownership of such Trademarks. The Parties further agree to take all reasonably required action in  connection with trademark marking or the giving of such other notices as provided for under United States or applicable foreign trademark  laws. Neither Party shall remove or deface any Trademark belonging to the other Party without such Party's prior written authorization.  6.3 Trademark Ownership. Zanotti acknowledges and agrees that Aura is the sole and exclusive owner of the Aura Trademarks. Aura likewise  acknowledges and agrees that Zanotti s.p.a is the sole and exclusive owner of the Zanotti Trademarks. As such, neither Party shall at any time  acquire any rights in the other Party's trademarks by virtue of its use thereof. Further, nothing contained in this Agreement shall be construed as  an assignment or grant by either party of any right, title or interest in or to such party's Trademarks, it being understood that all rights relating  thereto (except for the licenses granted hereunder for the right to use and utilize the Parties' Trademarks as expressly provided herein) are reserved  by the respective Parties. Further, the Parties agree that at no time shall either of them use any Trademark, mark or name confusingly similar to a  Trademark, mark or name owned by or licensed to the other party, in any manner without the prior written approval of the other party. Each party  each agrees that it will not knowingly do anything inconsistent with the other party's ownership of such party's intellectual property, including  without limitation, questioning the validity of that party's Trademarks or registering or attempting to register the other party's Trademarks in its  own name or that of any other firm, person or corporation.     6.4 Patent Markings. Each party shall each do everything reasonably required of it by the other party in connection with patent marking or the  giving of such other notices as provided for under United States or applicable foreign patent laws.     6.5 Protection of Intellectual Property. Each party agrees to take such actions as the other party may reasonably require for the protection of such  other party's proprietary interest in its Trademarks, Technology, and all other Proprietary Rights. Each Party shall cooperate fully and in good faith  with the other party for the purpose of preserving such other party's rights in and to the its Trademarks, Technology and all other Proprietary  Rights. Each party agrees to promptly notify the other party in writing of any uses, which may be infringements of the trademarks, technology or  other proprietary rights which come to its attention. In the event of infringement of a party's Trademarks, Technology, and other Proprietary Right,  such party alone shall have the sole right to determine whether or not any action shall be taken on account of any such infringement(s).     Article 7  Term and Termiantion    7.1 Term. This Agreement shall be for a period of five (5) years commencing upon the Effective Date hereof unless sooner terminated in  accordance with this Agreement (the "Initial Term"). Unless terminated prior to the natural expiration of the Initial Term, upon the expiry of the  Initial Term this Agreement shall automatically renew for successive terms of the same duration, unless either party gives written notice to the  other of such party's desire not to renew not less than ninety (90) days prior to the date of the expiration of the Initial Term or any
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+
+
+
+  successive term thereafter. For purposes of this Agreement, "Term" shall mean collectively the Initial Term as well as any successive renewal or  extension thereof.    7.2 Termination. Notwithstanding Section 7.1 above, this Agreement may be terminated upon the occurrence of any of the following events:
+
+
+  (a) At the election of either party, in writing, if: (i) all or substantially all of the assets of the non-terminating party are transferred, sold or  liquidated; (ii) the non-terminating party is dissolved; (iii) the non-terminating party is adjudged a bankrupt or becomes insolvent;  (iv) the non-terminating party enters into an assignment or other arrangement for the benefit of its creditors; or (v) the ownership or  operations of the non-terminating party have materially changed;
+
+  (b) By Aura, in writing in the event that Zanotti fails to meet the minimum purchase requirements as described in Article 3 above,  provided, however, that such default has not been remedied by Zanotti within sixty (60) days after receipt of written notice thereof  from Aura;
+
+  (c) By either party, if an event of force majeure continues for more than three (3) months as provided in Article 8 below;
+
+  (d) By either party hereto upon sixty (60) days prior written notice to the other party hereto; or
+
+  (e) By the non-defaulting party, (i) upon any default by the other party in the performance of any of its material obligations under this  Agreement, if such default has not been remedied within thirty (30) days after receipt of written notice thereof from the non- defaulting party; or (ii) if any representation or warranty of either party herein proves to be incorrect in any material respect.
+
+
+
+
+
+
+  7.3 Rights and Obligations upon Termination. Upon termination of this Agreement for whatever reason whatsoever, the Parties shall have the  following rights and obligations:
+
+
+
+
+
+
+
+
+
+
+
+  (a) Neither party shall be discharged for any antecedent obligations or liabilities to the other party under this Agreement, unless otherwise  agreed in writing;
+
+  (b) Aura shall have the right but not the obligation to purchase any or all Products then in Aura's possession at the invoiced price(s). In the  event that Aura does not elect to purchase said Products, Aura, at its cost, shall return all such non-purchased Products to Zanotti.
+
+  (c) For a period of not less than two (2) years after the date of termination, each party shall maintain, and make available to the other party  upon its request, for inspection and copying all books and records that pertain to performance of and compliance with obligations,  warranties and representations under this Agreement.
+
+
+
+
+
+
+
+  7.4 Effect of Termination. On and after termination of this Agreement, whether pursuant to the provisions of Section 7.3 of otherwise:
+
+
+
+
+
+    Article 8  General Provisions    8.1 Entire Agreement. This Agreement, including any Exhibits hereto, represents the entire agreement between the Parties on the subject matter  hereof and supersedes all prior discussions, agreements and understandings of every kind and nature between them. This Agreement may be  modified, amended, rescinded, cancelled or waived, in whole or in part, only by written instrument signed by all of the Parties hereto.     8.2 Notice. All notices under this Agreement shall be in English and shall be in writing and given by airmail, certified or registered, postage prepaid,  return receipt requested, cable, telex or facsimile, promptly confirmed by airmail, addressed to the parties at the addresses immediately below their  respective signatures hereto, or to such other address of which either party may advise the other in writing. Any notice given by airmail shall be  deemed received by the addressee three (3) business days from the date of mailing. All other forms of notice will be deemed given when sent.     8.3 Force Majeure. Neither party shall be in default hereunder by reason of any failure or delay in the performance (either in whole or in part) of any  obligation under this Agreement (other than the payment of money) where such failure or delay arises out of any cause beyond the reasonable  control and without the fault or negligence of such party (an "Event of Force Majeure"). Such causes shall include, without limitation, storms,  floods, other acts of nature, fires, explosions, riots, war, terrorism or civil disturbance, strikes or other labor unrests, embargoes, shortage or failure  in supply of raw materials from the then contemplated sources of supply and no other source or supply can be located or obtained with  commercially reasonable
+
+
+
+  (a) The Parties shall immediately cease all advertising and sale of the AETRU System although Aura may fill any orders received before the  date of termination, subject to the provisions hereto;
+
+  (b) NEITHER PARTY SHALL NOT BE LIABLE TO THE OTHER FOR ANY DAMAGES, LOSSES OR EXPENSES RESULTING FROM ANY  TERMINATION OR EXPIRATION OF THIS AGREEMENT ARISING FROM ANY CLAIMS ASSERTED WHICH ARE BASED UPON  LOSS OF GOODWILL, PROSPECTIVE PROFITS OR ANTICIPATED ORDERS, OR ON ACCOUNT OF ANY EXPENDITURES,  INVESTMENTS, LEASES OR COMMITMENTS MADE BY SUCH PARTY;
+
+  (c) All rights granted to either party hereunder shall forthwith and without further act or instrument, be assigned and revert to the original  party. In addition, each party will execute any instruments requested by the other which are necessary to accomplish or confirm the  foregoing. Any such assignment, transfer or conveyance shall be without consideration other than the mutual agreements contained  herein
+
+
+
+
+
+
+
+  diligence and effort, and other governmental actions or regulations which would prohibit either party from ordering or furnishing Products or from  performing any other aspects of the obligations hereunder. Within ten (10) days from the date of commencement of an Event of Force Majeure, the  party affected by such an event shall advise the other party (the "Other Party") of the date when such delay in performance commenced, and the  reasons therefore as enumerated in this Agreement; likewise, within ten (10) days after the delay ends, the party affected by such an Event of  Force Majeure shall advise the Other Party of the date when such delay ended, and shall also specify the redetermined time by which the  performance of the obligation hereunder is to be completed. In the event that the Event of Force Mejeure continues for a period of sixty (60) days  then the Other Party shall have the right to elect to terminate this Agreement upon ten (10) days notice to the party affected by such an event.     8.4 Severability. In the event any one or more of the provisions contained in this Agreement are deemed illegal or unenforceable, in whole or in  part, the remaining provisions, and any partially unenforceable provisions to the extent enforceable, shall nevertheless be binding and enforceable.  In the event that any act, regulation, directive, or law of a government having jurisdiction and respect of this Agreement, including its  departments, agencies or courts, should make it impossible or prohibit, restrain, modify or eliminate any act or obligation of either party under this  Agreement, the non-affected party shall have the right, at its option, to suspend this Agreement or the parties may, at their mutual agreement,  make such modifications therein as may be necessary.     8.5 Assignment. Except as expressly provided for herein, neither party may assign or otherwise transfer any of its rights or obligations under this  Agreement without the other party's prior written approval and any such assignment or transfer shall be void. This Agreement does not create,  and shall not be construed as creating, any rights enforceable by any person not a party to this Agreement.     8.6 Applicable Law. This Agreement is deemed made and entered into in the State of California and shall be construed, enforced and performed in  accordance with the laws of the State of California, without reference, to choice of law. THE RIGHTS AND OBLIGATIONS OF THE PARTIES IN  CONNECTION WITH THIS AGREEMENT AND ANY PURCHASE OF THE PRODUCTS SHALL NOT BE GOVERNED BY THE PROVISIONS OF  THE 1980 U.N. CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS.     8.7 Dispute Resolution. Any and all disputes of whatever nature, arising between the Parties of this Agreement or the underlying business  relationship, including termination thereof and statutory claims, and which are not resolved between the parties themselves, shall be submitted to  binding and final arbitration to be conducted in English, in Los Angeles, California, before a panel of three arbitrators in accordance with the  Commercial Arbitration Rules of the American Arbitration Association for Complex Commercial Cases in effect as of the date of this Agreement. Judgment upon the award of the arbitrators may be entered in any court having jurisdiction thereof. In the event of any proceeding in arbitration  between the Parties arising in any manner out of this Agreement or the asserted breach thereof, the prevailing party shall recover court costs or  costs of arbitration, as appropriate, and reasonable attorneys' fees.
+
+
+
+
+
+
+
+
+
+  8.8 Waiver. The waiver or excuse by either party hereto as to any breach, default or deficiency and the performance by the other party of any duty  or obligation by the other party to be performed hereunder shall not constitute or be deemed a continuing waiver or excuse of the same or any  other duty or obligation owed by the other.     8.9 Interpretation. In the event any claim is made by any party relating to any conflict, omission or ambiguity in this Agreement, no presumption or  burden of proof or persuasion shall be implied by virtue of the fact that this Agreement was prepared by or at the request of a particular party or  that party's counsel. Reference to "include," "includes" and "including" shall be deemed to be followed by the phrase "without limitation."     8.10 Captions. Captions of sections of this Agreement are included for reference only, shall not be construed as part of this Agreement and shall  not be used to define, limit, extend or interpret the terms hereof.     8.11 Currency. Unless otherwise agreed by the parties in writing, all payments required to be made under this Agreement shall be made in United  States Dollars via cash, check, wire transfer, or other immediately available funds. The remitting party shall pay at its own expense all charges and  expenses associated with the other party's receipt of such payment, including but not limited to credit card transaction fees.     8.12 Remedies Not Exclusive. No remedy conferred by any of the specific provisions of this Agreement is intended to be exclusive of any other  remedy and each and every right and remedy hereunder is cumulative with each and every other right and remedy herein or in any other agreement  between the parties or under applicable law.     8.13 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall constitute an original and all of which  together shall constitute one and the same instrument.     8.14 No Consequential Damages. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL,  CONSEQUENTIAL OR INDIRECT DAMAGES, HOWEVER CAUSED.     8.15 Successors. Except as otherwise provided herein, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their  permitted successors and assigns.     8.16 No Joint Venture. Nothing contained herein shall be construed to deem the Parties in the relationship of partners or joint venturers, and no  party hereto shall have any power to obligate any other party hereto in any manner whatsoever, except as expressly provided for herein.     8.17 Indemnity. Zanotti agrees to indemnify, defend and hold Aura, including its employees, agents and affiliates, harmless from and against any  and all payments, damages, demands, claims, losses, expenses, costs, obligations and liabilities (including reasonable attorney's fees and costs),  which arise out of, result from or are related to: (i) any breach by Zanotti of any provision contained in this Agreement, including without limitation  any obligation, representation, warranty or covenant herein; (ii) any occupational injury or illness sustained by any employee or agent of Zanotti  to the extent claims are made against, or held to be payable by
+
+
+
+
+
+
+
+
+
+  Aura; (iii) any applicable sales or other taxes due from or on behalf of Zanotti regardless of whether such taxes must be collected by Aura on  behalf of the taxing authority and regardless of whether Zanotti shall challenge the assessment or amount of such taxes (iv) any negligent or willful  act or omission or violation of any contractual arrangement of Zanotti or any of Zanotti's affiliates, officers, directors, agents or employees of  each, in connection with its or their performance relating to this Agreement; or (v) Zanotti's agreements, if any, with any other third parties.  Aura agrees to indemnify, defend and hold Zanotti, including its employees, agents and affiliates, harmless from and against any and all  payments, damages, demands, claims, losses, expenses, costs, obligations and liabilities (including reasonable attorney's fees and costs), which  arise out of, result from or are related to the breach by Aura of any representation, warranty or covenant contained in this Agreement.  Either party seeking indemnification under this Agreement (the "Indemnified Party") shall give notice to the party required to provide  indemnification hereunder (the "Indemnifying Party") promptly after the Indemnified Party has actual knowledge of any claim as to which  indemnity may be sought hereunder, and the Indemnified Party shall permit the Indemnifying Party (at the expense of the Indemnifying Party) to  assume the defense of any claim or litigation resulting thereform; provided that: (i) counsel for the Indemnifying Party who shall conduct the  defense of such claim or litigation shall be reasonably satisfactory to the Indemnified Party; (ii) the Indemnified Party may participate in such  defense, but only at the Indemnified Party's own cost and expense; and (iii) the omission by the Indemnified Party to give notice as provided  herein shall not relieve the Indemnifying Party of its indemnification obligations hereunder except to the extent that such omissions results in a  failure of actual notice to the Indemnifying Party and the Indemnifying Party is damaged as a result of such failure to give notice. The  Indemnifying Party shall not, except with the consent of the Indemnified Party, consent to entry of any judgment or administration order or enter  into any settlement that (i) could affect the intellectual property rights or other business interests of the Indemnified Party or (ii) does not include  as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnified Party of a release form all liability with respect to such  claim or litigation.  In the event that the Indemnified Party shall reasonably and in good faith determine that the conduct of the defense of any claim subject  to indemnification hereunder or any proposed settlement of any such claim by these Indemnifying Party might be expected to affect adversely the  Indemnified Party's intellectual property rights or ability to conduct future business, the Indemnified Party shall have the right at all times to take  over and assume control over the defense, settlement, negotiations or lawsuit relating to any such claim at the sole cost and expense of the  Indemnifying Party.  In the event that the Indemnifying Party does not accept the defense of any matter as provided herein, the Indemnified Party shall have  the full right to defend against any such claim or demand, and shall be entitled to settle or agree to pay in full such claim or demand, in its sole  discretion.  The provisions of this Section 8.17 shall survive the expiration or sooner termination of this Agreement.    8.18 Insurance. Both Parties will each have and maintain in full force and effect during the Term of this Agreement (including any post-termination  period for which indemnification obligations continue), all product liability and other insurance reasonably necessary to cover
+
+
+
+
+
+
+
+
+
+  such party's anticipated indemnification obligation and other risk of loss for which it may be liable under this Agreement. All such insurance  coverages shall be occurrence based and not claims made. Such policy or policies will (a) have aggregate limits of liability of not less than  $1,000,000 with respect to any incident or occurrence and of not less than $2,000,000 in the aggregate; (b) name both Zanotti and Aura as insured  parties; and (c) provide that such policy may not be canceled except upon not less than 30 days' written notice to both Zanotti and Aura. Each  party will provide such evidence of the effectiveness of such insurance to the other party as may be reasonably requested.                    [signature page to follow]
+
+
+
+
+
+
+
+
+
+       IN WITNESS WHEREOF, Aura and Zanotti have caused this instrument to be executed by their duly authorized employees, as of the day and  year first above written.          AURA SYSTEMS, INC. ZANOTTI USA  A Delaware Corporation A Massachusetts Corporation       By: By:     _____________________________ _____________________________  Melvin Gagerman Zoltan Lemperth  CEO [title]      _____________________________  Greg Demetri  [title]      _____________________________  Scott Demetri  [title]      _____________________________  Michael Driscoll  [title]
+
+
+
+
+
+
+
+
+
+  Exhibit A  "Products"
+
+
+
+  V3.03/17/10 AURA/ZANOTTI STRATEGIC ALLIANCE AGREEMENT Exhibit A
+
+
+
+
+
+
+
+  Exhibit B  Product Prices
+
+
+
+  V3.03/17/10 AURA/ZANOTTI STRATEGIC ALLIANCE AGREEMENT Exhibit B
+
+
+
+
+
+
+
+  Exhibit C  End-User Warranty
+
+
+
+  V3.03/17/10 AURA/ZANOTTI STRATEGIC ALLIANCE AGREEMENT Exhibit C

full_contract_txt/AgapeAtpCorp_20191202_10-KA_EX-10.1_11911128_EX-10.1_Supply Agreement.txt

@@ -0,0 +1,99 @@
+ODM - SUPPLY AGREEMENT BETWEEN: ORGANIC PREPARATIONS INC. 2nd Floor, Transpacific Haus Lini Highway, Port Vila. Vanuatu "the Manufacturer" -- AND -- AGAPE ATP INTERNATIONAL HOLDING LIMITED Unit 05, 4F, Energy Plaza No. 92, Granville Road Tsim Sha Tsui East Kowloon, Hong Kong "the Customer"
+
+Source: AGAPE ATP CORP, 10-K/A, 12/2/2019
+
+
+
+
+
+ODM SUPPLY AGREEMENT THIS AGREEMENT is made on the 15t h day of January 2018. BETWEEN: ORGANIC PREPARATIONS INC. 2nd Floor, Transpacific Haus Lini Highway, Port Vila. Vanuatu ('the Manufacturer') of one part AND: AGAPE ATP INTERNATIONAL HOLDING LIMITED Unit 05, 4F, Energy Plaza No. 92, Granville Road Tsim Sha Tsui East Kowloon, Hong Kong ('the Customer') of the other part. RECITALS a. The Manufacturer wishes to appoint the Customer to be the sole and exclusive agent for the promotion, sales, marketing distribution and administration of the Products listed in schedule A of this agreement. b. The Manufacturer and the Customer wish to record their agreement under the stipulations of this Agreement. NOW IT IS AGREED as follows:- 1. TERMS OF AGREEMENT 1.1 Commencement This agreement commences upon execution of this document. 1.2 Term This agreement is for a term of ten (10) years. 1.3 Renewal This agreement will be automatically renewed at the end of every ten (10) year term, with each subsequent term of renewal being for a ten (10) year term. A six (6) months notice must be given by either party of their intention to terminate relations due to any reason other than breach of this agreement. ODM Supply Agreement 2 Organic Preparations INC. & Agape ATP International Holding Limited
+
+Source: AGAPE ATP CORP, 10-K/A, 12/2/2019
+
+
+
+
+
+2. PROVISION OF DOCUMENTATION 2.1 Provision by the Manufacturer The Manufacturer agrees to supply to the Customer, within a reasonable period of time, all documentation and information relating to the Products and their Manufacture as is required for the registration of the Products in the Territories as listed in Schedule C of this document. The party responsible for documentation fees and costs will be the Customer. 2.2 Provision by the Customer The Customer agrees to supply to the Manufacturer at its own expense, within a reasonable period of time, all documentation and information as is reasonably required by or would be beneficial to the Manufacturer in the performance of its obligations under this agreement. 3. COVENANTS BY THE MANUFACTURER 3.1 Compliance with Local Laws and Regulations The Manufacturer covenants that it is and will remain for the term of this agreement in compliance with any and all Local Laws and Regulations. This includes without limitation laws relating to business practice, workplace relations, safety and taxation. 3.2 Manufacturing standards The Manufacturer covenants that it is and will remain for the term of this agreement in compliance with all International standards in production and manufacturing. 3.3 Packaging The Manufacturer covenants that it is and will remain for the term of this agreement in compliance with any and all packaging laws and regulations in all of the Territories. 3.4 Ability to Perform The Manufacturer covenants that it is willing and able to perform any and all of its obligations under this agreement. 3.5 Intellectual Property 3.5 (a) The Manufacturer covenants that the Products are clear of any Intellectual Property claims by third parties and that the Customer has full rights to sell and market the Products worldwide. The Manufacturer indemnifies the Customer for the same. ODM Supply Agreement 3 Organic Preparations INC. & Agape ATP International Holding Limited
+
+Source: AGAPE ATP CORP, 10-K/A, 12/2/2019
+
+
+
+
+
+3.5 (b) The composition of the below individuals is also relevant and related to the Intellectual Property of the Manufacturer. The following names listed as Medical Team members, and any subsequent consultations in that capacity, are considered the Intellectual Property of The Manufacturer: 1. Dr Lily Tomas 2. Dr Bernd Friedlander 3. Mr Markus Eistert 4. Dr Ed Smith 5. Mr Vic Cherikoff 6. Dr Pavel Yutsis 7. Dr Michael Tirant 8. Mr Frank Ellis 9. Mr Peter Davids 10. Dr Rutledge Taylor The list shall be expanded and added to in future addendums to this agreement. 3.6 Sale of Product The Manufacturer covenants not to sell any product listed in this agreement, or product name (as listed in schedule A of this agreement) to any other party without prior written consent of the Customer. 4. COVENANTS BY THE CUSTOMER 4.1 Compliance with Local Laws and Regulations The Customer covenants that it is and will remain for the term of this agreement in compliance with any and all Local Laws and Regulations. This includes without limitation laws relating to business practice, workplace relations, safety and taxation. 4.2 Ability to Perform The Customer covenants that it is and will remain for the term of this agreement willing and able to perform any and all of its obligations under this agreement. 4.3 Market Penetration The Customer covenants to give its best endeavours to establish and develop a market for the Products in the Territories with maximum market penetration. ODM Supply Agreement 4 Organic Preparations INC. & Agape ATP International Holding Limited
+
+Source: AGAPE ATP CORP, 10-K/A, 12/2/2019
+
+
+
+
+
+5. SHIPPING AND PAYMENT TERMS 5.1 Shipping Products delivered pursuant to the terms of this Agreement shall be suitably packed for shipment in the Manufacturer's standard shipping cartons, marked for shipment to the destination specified in the Customer's Purchase Order, and delivered to the destination Ex Works. The Customer agrees to pay freight, insurance and any associated expenses. The Customer agrees to help the Manufacturer select the most appropriate carrier for each of the Territories. All freight, insurance, and other shipping expenses shall be paid by the Customer. 5.2 Guarantee of packaging quality The Manufacturer further guarantees that the Products, when shipped, are packaged in such a way as to be protected from any foreseeable damage during shipment. 5.3 Rejection of defective products The Customer shall inspect all Products promptly upon receipt thereof and may reject any defective Product, provided that the Customer shall within seven (7) days after receipt of such alleged defective Product, notify the Manufacturer of its rejection and either: (i) request to destroy in field for credit of the value of the defective product and the associated shipping costs (with approval), or (ii) request a Return Material Authorization ("RMA") number and within seven (7) days of receipt of the RMA number from the Manufacturer return such rejected Product to the Manufacturer. Products not rejected within the foregoing time periods shall be deemed accepted by the Customer. In the event that the Manufacturer determines that the returned Product is defective and properly rejected by the Customer, the Manufacturer shall credit to the Customer the value of the defective product and the associated shipping costs. 5.4 Payment terms Unless separate payment terms are agreed to outside of this Agreement by both parties in writing, payment terms will be as follows: (i) 50% of the Total Order Cost must be paid on placement of the customer's order. (ii) The remaining 50% of the total order cost must be paid prior to the goods leaving the warehouse of the manufacturer. The Manufacturer will notify the Customer when the goods are ready for shipment prior to the goods leaving the warehouse. ODM Supply Agreement 5 Organic Preparations INC. & Agape ATP International Holding Limited
+
+Source: AGAPE ATP CORP, 10-K/A, 12/2/2019
+
+
+
+
+
+6. INDEMNITY / INSURANCE 6.1 The Manufacturing Companies utilised by the Agent to manufacture the products listed in Schedule A of this agreement shall maintain throughout the term of this agreement product liability insurance issued by a reputable insurance company under standard terms and conditions in the industry to cover the liability of the Customer and to indemnity the Customer from any costs, expenses, loss or damages resulting from any act, neglect or default of the company. 6.2 The Customer shall at all times during the term of this agreement maintain product liability insurance, covering all products sold by the Manufacturer to the Customer and which policy shall name the Manufacturer as Additional Insured. 7. BREACH / TERMINATION 7.1 Notice of Breach Each party has an obligation to notify immediately the other party of any breach of this agreement. 7.2 Rectification of Breach Where the breach is rectifiable, the breaching party has 21 days from the date of notification of its breach to rectify. Following the expiry of this period, the non-breaching party may execute any rights it may have both in law and under this agreement. 7.3 Rights to termination Without prejudice to any right or remedy both parties may have against each other for breach or non-performance of this Agreement each party shall have the right to summarily terminate this Agreement: (a) On the committing of a material breach of this agreement providing that where the breach is capable of rectification the breaching party has been advised in writing of the breach and has not rectified it within twenty-one (21) days of receipt of such advice. (b) On the commencement of the winding up or bankruptcy of either party or on the appointment of a receiver of the distributor's assets or on either party ceasing to do business at any time for thirty consecutive days (other than for annual holidays). (c) On either party for any reason (other than a default of the other party) being substantially prevented from performing or becoming unable to perform its obligations under this agreement. (d) On either party assigning or attempting to assign this agreement without the prior written consent of the other party. ODM Supply Agreement 6 Organic Preparations INC. & Agape ATP International Holding Limited
+
+Source: AGAPE ATP CORP, 10-K/A, 12/2/2019
+
+
+
+
+
+(e) If control of either party shall pass from the present shareholders or owners or controllers to other persons whom the other party shall in their absolute discretion regard as unsuitable. (f) Either parties voting stock is transferred to any third party to such extent as to result in a change in effective control of the company or its ownership or active management is changed in any other manner. The termination of this agreement shall be without prejudice to the rights of either party to payment or other claims due or accrued up to the termination of this agreement. For termination to be effective, written notice of termination must be served on the other party. Where valid, termination takes effect immediately upon service. 8. ARBITRATION 8.1 Any and all disputes, claims or differences arising out of or relating to this agreement or the alleged breach thereto shall be settled by mutual consultation between the parties in good faith as promptly as possible but failing such amicable settlement, shall be decided by Arbitration by the Arbitration Committee of the International Chamber of Commerce located in Switzerland. 8.2 The language to be used in the Arbitration proceedings shall be English. 8.3 The award/decision of the Arbitration Committee shall be final and binding on both the parties and enforceable in any jurisdiction. 9. COSTS Each of the parties shall bare its own legal costs and expenses incurred by it in connection with this agreement and any stamp duty payable under this agreement shall be borne by equally by both parties. 10. GOVERNING LAW This agreement shall be governed by the Laws of England (English common and statutory Law). 11. INTELLECTUAL PROPERTY The Manufacturer is the owner of the intellectual Property pertaining to the products listed in schedule A of this agreement as well as to the book 'How to Achieve Super Health beyond 2000 - Advanced Edition' ODM Supply Agreement 7 Organic Preparations INC. & Agape ATP International Holding Limited
+
+Source: AGAPE ATP CORP, 10-K/A, 12/2/2019
+
+
+
+
+
+12. TRANSFER OF INTELLECTUAL PROPERTY The Manufacturer agrees to offer the Customer the first right of refusal to purchase the intellectual property for the products listed in Schedule A of this agreement based upon agreed terms. 13. APPOINTMENT AND GRANT OF LICENSE 13.1 The Manufacturer hereby appoints the Customer to be the sole and exclusive agent for the promotion, sales, marketing, distribution and administration of the products listed in schedule A of this agreement based on minimum annual product purchase requirements as listed in Schedule B of this agreement. 13.2 The Manufacturer grants exclusive rights to the Customer for the term of ten (10) years from the date of the signing of this agreement and for an indefinite period upon the customer fulfilling the minimum annual purchase requirement as listed in Schedule B. of this agreement. 14. MISCELLANEOUS PROVISIONS 14.1 Notice Any notice to be served under this agreement must be served by sending it to the usual business address of the recipient by ordinary mail, facsimile, or personal delivery, and in the case of ordinary mail service will be deemed to occur one (1) day after the date of posting, and in all other cases deemed to occur on the same day. 14.2 Entire Agreement This agreement contains the entire understanding of the parties with respect to the subject matter hereof and supersedes all prior agreements relating thereto, written or oral, between the parties. Amendments to this agreement must be in writing, signed by the duly authorized officers of the parties. The terms of any purchase order are expressly excluded 14.3 Conflicting Terms The parties agree that the terms and conditions of this agreement shall prevail, notwithstanding contrary or additional terms, in any purchase order, sales acknowledgment, confirmation or any other document issued by either party effecting the purchase and/or sale of Products. 14.4 Severability If any provision of this agreement is held to be invalid by a court of competent jurisdiction, then the remaining provisions will nevertheless remain in full force and effect. The parties agree to renegotiate in good faith those provisions so held to be invalid to be valid, enforceable provisions which provisions shall reflect as closely as possible the original intent of the parties, and further agree to be bound by the mutually agreed substitute provisions. ODM Supply Agreement 8 Organic Preparations INC. & Agape ATP International Holding Limited
+
+Source: AGAPE ATP CORP, 10-K/A, 12/2/2019
+
+
+
+
+
+14.5 No Implied Waivers The failure of either party at any time to require performance by the other of any provision hereof shall not affect the right of such party to require performance at any time thereafter, nor shall the waiver of either party of a breach of any provision hereof be taken or held to be a waiver of a provision itself. 14.6 Assignment The Manufacturer may not transfer or assign any of its rights or obligations under this agreement without the prior written consent of the Customer. The Customer may not freely transfer or assign its rights or obligations under this agreement without the prior written consent of the Manufacturer. Subject to the foregoing, this agreement will be binding upon and inure to the benefit of the parties hereto, their successors and assignees. 14.7 Force Majeure Neither party to this agreement is liable to the other for a breach of this agreement when the breach is as a result of the occurrence of one of the events below: (i) The outbreak of hostilities (whether or not accompanied by any formal declaration of war), riot, civil disturbance, or acts of terrorism; or (ii) The act of any government or competent authority (including the cancellation or revocation of any approval, authority or permit); or (iii) Fire, explosion, flood, inclement weather, or natural disaster; or (iv) The declaration of a state of emergency or the invocation of martial law having an effect on commerce generally; or (v) Industrial action (including strikes and lock-outs) that is of a widespread nature affecting the Principal solely or the industry or sector of which the Principal is a part (whether in a vertical sense or horizontal sense); or (vi) Any other cause, impediment or circumstance beyond the reasonable control of any party. Where the occurrence of one of the above events is to any extent as a result of an act or omission of the breaching party, this section will not apply. 14.8 New Products Designed, Formulated and Supplied by the Manufacturer The Manufacturer agrees to maintain its focus on the design and formulation of new products and agrees to provide the Customer with one new product each quarter for a minimum of four (4) new products per year. The Manufacturer agrees to give the Customer exclusive rights to the marketing, promotion and sales of the new products should the Customer decide to take on the new products. ODM Supply Agreement 9 Organic Preparations INC. & Agape ATP International Holding Limited
+
+Source: AGAPE ATP CORP, 10-K/A, 12/2/2019
+
+
+
+
+
+14.9 Other products outside of the product range listed in schedule A of this document The Manufacturer agrees that the Customer has the right under this agreement to consider, source, promote, market and sell other product outside of the products listed in Schedule A of this agreement in line with the following assumptions: That they are non-competing products to the range of products or those products listed in schedule A of this agreement. 14.10 HOW TO ACHIEVE SUPER HEALTH BEYOND 2000 - ADVANCED EDITION BOOK The Manufacturer has appointed the Customer the copyright holder of both the English and the Chinese version of the book How to achieve Super Health beyond 2000 - Advanced Edition, authored by Frank D.P. Ellis and Dr. Michael Tait M.D. This appointment shall be deemed valid provided the Customer fulfils and maintains the criteria of this agreement. The Customer will provide the Manufacturer with prior notification of printing runs of the book and the quantity of books to be printed in each run. The Customer will compensate the Manufacturer the amount of AUS $1.00 per book prior to printing. ODM Supply Agreement 10 Organic Preparations INC. & Agape ATP International Holding Limited
+
+Source: AGAPE ATP CORP, 10-K/A, 12/2/2019
+
+
+
+
+
+EQUITY HOLDINGS LIMITED by the duly authorised Officer: __________________________________ ____________________________ Common Seal of Organic Preparations INC.  was hereunto affixed in the presence of Duly authorized to sign on behalf of Organic Preparations INC. Date 15 JANAURY, 2018 In the presence of: Witness Signature ____________________ Date 15 JANAURY, 2018 Witness Name Mercy Saula Address 2nd Floor, Transpacific Hous, Port Vila, Vanuatu. Signed under common seal of Agape ATP International Holding Limited with authority of the board. Signature ______________ Name How Kok Choong ______________________ Common Seal of Agape ATP International Holding Limited Date 31 JANAURY, 2018 In the presence of: Witness Signature ___________________________ Date 31 JANAURY, 2018 Witness Name Ku Suat Hong Address 17-1, 17-2, 17-3, 17-4, Wisma Laxton, Jalan Desa,Taman Desa, Off Jalan Klang Lama, 58100 Kuala Lumpur. ODM Supply Agreement 11 Organic Preparations INC. & Agape ATP International Holding Limited
+
+Source: AGAPE ATP CORP, 10-K/A, 12/2/2019
+
+
+
+
+
+SCHEDULE A - The Products at Commencement Product names: ATP 1S Survivor Select ATP 2 Energized Mineral Concentrate ATP 3 Ionized Cal-Mag ATP 4 Omega Blend ATP 5 BetaMaxx AGP 1 Iron YFA Young Formula ORYC Organic Soap SCHEDULE B - Minimum Annual Product Performance Requirements Performance targets have been discussed between the Manufacturer and the Customer to determine fair and reasonable performance targets. Minimum Annual Product Performance Requirements are listed below: Product Name: Agreed Quantity of Units to be purchased per Annum: ATP 1 S Survivor Select 150gm packaged 15,000 ATP 2 Energized Mineral Concentrate 29.5mL packaged 20,000 ATP 3 Ionized Cal-Mag 114gm packaged 15,000 ATP 4 Omega Blend 250mL packaged 15,000 ATP 5 BetaMaxx 150gm packaged 15,000 AGP 1 Iron 29.5mL packaged 1000 YFA Young Formula 450gm packaged 3000 ORYC Organic Soap 150gm packaged 2500 ODM Supply Agreement 12 Organic Preparations INC. & Agape ATP International Holding Limited
+
+Source: AGAPE ATP CORP, 10-K/A, 12/2/2019
+
+
+
+
+
+SCHEDULE C - THE TERRITORIES The Territories consisting of the following Countries: Global - All countries ODM Supply Agreement 13 Organic Preparations INC. & Agape ATP International Holding Limited
+
+Source: AGAPE ATP CORP, 10-K/A, 12/2/2019

full_contract_txt/AlliedEsportsEntertainmentInc_20190815_8-K_EX-10.19_11788293_EX-10.19_Content License Agreement.txt

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+Exhibit 10.19 JOINT CONTENT LICENSE AGREEMENT This JOINT CONTENT LICENSE AGREEMENT (the "Agreement"), dated February 1, 2018 (the "Effective Date"), is made by and between WPT Enterprises, Inc., a Delaware corporation, with offices located at 1920 Main Street, Suite 1150, Irvine, CA 92614 ("WPT"), and ZYNGA INC., a Delaware corporation with offices located at 699 8th Street, San Francisco CA, 94103 ("Zynga US") and ZYNGA GAME IRELAND LIMITED, a limited company organized under the laws of Ireland, resident in Ireland and having its registered office located at The Oval, Building One, Third Floor 160 Shelbourne Road Ballsbridge 4 Co. Dublin Ireland ("Zynga Ireland," and together with Zynga US and their respective Affiliates, "Zynga"). In addition to the Definitions set forth in Section 1 of the Additional Provisions (attached and incorporated by reference), all capitalized terms used herein shall have the meanings set forth below. In consideration of the mutual promises herein contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: BASIC PROVISIONS 1. Joint Content License Relationship. Among other games, Zynga produces and distributes the ZYNGA POKER® game on a number of global platforms, including Apple iOS, Google Android, Facebook and the zynga.com website. The ZYNGA POKER® game features a Zynga Poker Tournaments Mode that Zynga can customize. Among other things, WPT is the creator of the World Poker Tour, WPT Tournaments and the WPT Invitational Tournaments. WPT Tournaments and WPT Invitational Tournaments are televised poker tournaments where a partner can promote its brand. The parties desire to work cooperatively, but independently, to use commercially reasonable efforts to engage in the marketing and promotional activities described in Exhibit A, including, but not limited to Zynga promoting the WPT brand in a WPT-branded Zynga Poker Tournament Mode, and WPT promoting the Zynga brand in WPT Tournaments and WPT Invitational Tournaments. This Agreement describes the terms of a content license and cooperative marketing relationship under which each party will independently or cooperatively engage in mutually agreed activities to promote each other's products and services throughout the Territory (as defined below). 2. Territory. The Territory for this Agreement is worldwide, but not including Asian countries (including, but not limited to, Bangladesh, Bhutan, Brunei, Cambodia, East Timor, Hong Kong, India, Indonesia, Japan, Laos, Macau, Malaysia, Maldives, Mongolia, Myanmar, Nepal, North Korea, Pakistan, People's Republic of China, Philippines, Singapore, South Korea, Sri Lanka, Taiwan, Thailand, Vietnam). The parties acknowledge and agree that the rights granted hereunder by Zynga (a) with respect to the United States are granted to, held and exercised by Zynga US and (b) with respect to all other parts of the Territory are granted to, held and exercised by Zynga Ireland.
+
+1
+
+Source: ALLIED ESPORTS ENTERTAINMENT, INC., 8-K, 8/15/2019
+
+
+
+
+
+3. Term. This Agreement will be in effect for three (3) years from the Effective Date ("Initial Term") unless terminated earlier in accordance with this Agreement. This Agreement shall automatically extend for an additional two (2) years on the same terms herein ("Renewal Term") provided WPT receives payments greater than twelve million U.S. dollars ($12,000,000) within the Initial Term. The Initial Term and any such Renewal Term are collectively referred to as the "Term." 4. Annual Minimum Guarantee. Zynga will pay WPT three million U.S. dollars ($3,000,000) per year according to the following schedule (which the parties may alter upon mutual agreement) (the "Annual Minimum Guarantee"): a. Within thirty (30) days of executing this Agreement: $1.5M b. July 1, 2018: $1.5M c. January 1, 2019: $1.5M d. July 1, 2019: $1.5M e. January 1, 2020: $1.5M f. July 1, 2020: $1.5M 5. Royalty. Zynga will pay to WPT ten percent (10%) of the cumulative Net Revenue (as defined in Section 3.b. of the Additional Provisions) ("Royalty") from the WPT-branded Zynga Poker Tournament Mode or other such use of the WPT brand on the Zynga platform. Zynga shall not be required to pay the Royalty to the extent offset by the Annual Minimum Guarantee payments previously paid to WPT during the Term. Conversely, Zynga shall not be required to make Annual Minimum Guarantee payments to the extent offset by the Royalty previously paid to WPT during the Term. The Additional Provisions and any attached Exhibits are incorporated by reference. Signature page to follow.
+
+2
+
+Source: ALLIED ESPORTS ENTERTAINMENT, INC., 8-K, 8/15/2019
+
+
+
+
+
+IN WITNESS WHEREOF ZYNGA INC. Signature: ______________________ Name: _________________________ Title: __________________________
+
+WPT ENTERPRISES, INC. Signature: _________________________ Name: ____________________________ Title: _____________________________ ZYNGA GAME IRELAND LIMITED Signature: ______________________ Name: _________________________ Title: __________________________
+
+3
+
+Source: ALLIED ESPORTS ENTERTAINMENT, INC., 8-K, 8/15/2019
+
+
+
+
+
+ADDITIONAL PROVISIONS The following Additional Provisions form part of the Agreement dated February 1, 2018 entered into by and between ZYNGA INC. and ZYNGA GAME IRELAND LIMITED and their respective affiliates ("Zynga"), and WPT Enterprises, Inc. ("WPT"). 1. DEFINITIONS a. "Affiliate" means an entity, directly or indirectly, controlled by, controlling of, or under common control with a party, either now or in the future, and their respective successors and assigns. b. "Artwork" means, without limitation, all pictorial, graphic, visual, audio, audio-visual, digital, literary, animated, artistic, dramatic, sculptural, musical or any other type of creation or application, whether finished or not, including, without limitation, animation, drawings, designs, sketches, images, illustrations, film, video, electronic, digitized or computerized information, software, object code, source code, on-line elements, music, text, dialogue, stories, visuals, effects, scripts, voiceovers, logos, one-sheets, promotional pieces, packaging, display materials, printed materials, photographs, interstitials, notes, shot logs, character profiles and translations. c. "Agreement" means the Basic Provisions, these Additional Provisions, and any and all attached Exhibits. d. "Licensed Property" means those specific trademarks, service marks, publicity rights, copyrights, intellectual property rights, and any other items set forth in this Agreement, which the parties may utilize in connection with the marketing and promotional activities in Exhibit A. A list of the Licensed Property for each party is described in Exhibit B. e. "Annual Minimum Guarantee" means the guaranteed minimum amount due to WPT by Zynga in consideration of the rights granted herein, which amount may be recoupable from Royalties as set forth below and in the Basic Provisions. f. "Royalty" means the amount(s) set forth in the Basic Provisions and calculated as described in the Additional Provisions. g. "Term" means the term of this Agreement as set forth in the Basic Provisions. h. "Territory" means the territory throughout which the parties are authorized to engage in the marketing and promotional activities as described in Exhibit A and in the Basic Provisions. 2. TRADEMARKS, APPROVALS, AND RESERVATION OF RIGHTS a. Materials. To the extent indicated on Exhibit A, each party will provide the other party with electronic files containing the Licensed Property of such party to be used under this Agreement, as specified in Exhibit B, if any. b. License by Zynga. Subject to the terms and conditions of this Agreement, Zynga grants to WPT a non-exclusive, non- assignable, non-sublicensable, royalty-free, paid up, limited worldwide license to use and display Zynga's Licensed Property solely as necessary to perform WPT's obligations under this Agreement and as specifically described on Exhibit A, in any and all media now known or hereafter devised, for the Term (subject to Section 7.e. of Additional Provisions). c. License by WPT. Subject to the terms and conditions of this Agreement, WPT grants to Zynga a non-exclusive, non-assignable, non-sublicensable, royalty-free, paid up, limited license in the Territory to use and display WPT's Licensed Property solely as necessary to perform Zynga's obligations under this Agreement and as specifically described on Exhibit A, for the Term. d. Trademark Guidelines. In its use of the Licensed Property of the other party ("Licensee"), each party ("Licensor") will comply with any trademark usage guidelines that Licensor may communicate to Licensee from time to time. Each use of Licensor's marks by Licensee will be accompanied by the appropriate trademark symbol (either "™" or "®") and a legend specifying that such marks are trademarks of Licensor as specified on Exhibit B, and will be in accordance with Licensor's then-current trademark usage policies as provided in writing to Licensee from time to time. Licensee will provide Licensor with copies of any materials bearing any of Licensor's marks as requested by Licensor from time to time. If Licensee's use of any of Licensor's marks, or if any material bearing such marks, does not comply with the then-current trademark usage policies provided in writing by Licensor, Licensee will promptly remedy such deficiencies upon receipt of written notice of such deficiencies from Licensor. Other than the express licenses granted herein with respect to each Licensor's marks, nothing herein will grant to Licensee any other right, title or interest in Licensor's marks. All goodwill resulting from Licensee's use of Licensor's marks will inure solely to Licensor. Each party recognizes the great value of the publicity and good will associated with the Licensed Property and acknowledges that: (a) such good will is exclusively that of Licensor or Licensee, as applicable; and (b) the Licensed Property have acquired a secondary meaning as trademarks and/or identifications of Licensor or Licensee, as applicable, in the mind of the purchasing public. Licensee will not, at any time during or after this Agreement, register, attempt to register, claim any interest in, contest the use of, or otherwise adversely affect the validity of any of Licensor's marks (including, without limitation, any act or assistance to any act, which may infringe or lead to the infringement of any such marks).
+
+4
+
+Source: ALLIED ESPORTS ENTERTAINMENT, INC., 8-K, 8/15/2019
+
+
+
+
+
+e. Approvals. The Licensed Property shall be displayed or used only in such form and in such manner as has been approved in writing (which may be by email) by Licensor pursuant to this Section 2 and Licensee shall ensure its usage of the Licensed Property solely as approved. Throughout the Term, including any renewals or extensions (if applicable), Licensee shall comply with reasonable quality standards, style guides and clear specifications communicated to Licensee and rights of approval of Licensor set forth in this Section 2 with respect to any and all of its usage of the Licensed Property. Subject to Licensor's prior written approval of any applicable Licensed Property (hereinafter the "Approved Content"), all Conforming Content will be deemed approved by Licensor. "Conforming Content" means any and all elements of the Approved Content which (i) do not represent deviations in quality, style, look-and-feel or other aspects of use from the Approved Content and (ii) are consistent with the aesthetic style or tone of the Approved Content. The parties will come to agreement with respect to Exhibit A as to whether prior written approval is needed in every instance or whether it is not needed after the first instance has been approved in writing (e.g., given exigencies in television production business, it is reasonable that Zynga would approve the use of its brand conceptually in elements of an episode but not need to re-approve the use in a similar manner for every episode the brand is used in; and similarly, given exigencies in the social gaming business, it is reasonable that WPT would approve use of its brand conceptually in elements of the Zynga platform but not need to re-approve the use in a similar manner for every poker tournament the brand is used in). i. Licensee may use textual and/or pictorial matter pertaining to the Licensed Property on such promotional, display and advertising material as may, in Licensee's reasonable judgment, promote the awareness, consumption and sale of the Licensed Property. All final advertising and promotional material using the Licensed Property must be submitted to Licensor for its prior written approval. All press releases respecting this Agreement or the relationship of the parties herein shall require prior written approval by the other party. ii. Licensor will use commercially reasonable efforts to provide approval and/or feedback within five (5) business days after its receipt of a creative submission, or re-submission, with respect to the Licensed Property or marketing materials; provided that: (a) if Licensor declines to approve any submission or re-submission, then it shall provide reasonably detailed feedback in order to enable Licensee to modify the Licensed Property or marketing material accordingly in order to address Licensor's concerns and obtain Licensor's approval, and (b) if Licensor fails to (1) approve or (2) disapprove and provide feedback within such timeframe, then such submission or re-submission is deemed to have been approved. No approval may be unreasonably withdrawn by Licensor once delivered. iii. Zynga shall advise WPT to Zynga's knowledge as to which jurisdictions where it may be illegal to advertise Zynga's Licensed Property (if any) given local laws or regulations. iv. WPT or its affiliates shall not authorize a Zynga Competitor to commercially exploit the Licensed Property in connection with social poker gaming via a license similar to the license granted herein for the Term. A "Zynga Competitor" means: 1) Aristocrat Technologies Australia Pty Ltd. Or Big Fish Games, Inc.; 2) HUUUGE Inc.; 3) Activision Blizzard, Inc., King.com Ltd. Or King.com (US) LLC; 4) Scientific Games Corporation; 5) Tencent Holdings Limited; and 6) Murka Ltd. The parties agree to work together in good faith to amend the definition of a Zynga Competitor if that meaning for Zynga reasonably changes during the Term. f. Reservation of Rights. The parties acknowledge and agree that, except for the rights and licenses expressly granted by each party to the other party under this Agreement, each party will retain all right, title and interest in and to its products, services, marks, copyrights or other intellectual property, and all content, information and other materials on its website(s), and nothing contained in this Agreement will be construed as conferring upon such party, by implication, operation of law or otherwise, any other license or other right. 3. PAYMENT a. Annual Minimum Guarantee. Zynga will pay to WPT the Annual Minimum Guarantee as set forth in the Basic Provisions. The Annual Minimum Guarantee shall be recoupable from such Royalties as are, or have become, paid to WPT. For clarification, the Annual Minimum Guarantee will operate as an advance payment, such that when accrued Royalties exceed the Annual Minimum Guarantee payments already paid, then the excess Royalties will be paid by Zynga to WPT. b. Royalty. The Royalties to be paid by Zynga to WPT is the percentage of Net Revenue as set forth in Section 5 of the Basic Provisions. "Net Revenue(s)" shall be defined as one hundred percent (100%) of gross revenues and all other receivables of any kind whatsoever received by Zynga or any of Zynga's affiliates attributable to the use of Paid Currency or in connection with the sale of Virtual Digital Goods derived from use of the WPT-brand on the Zynga platform, less the following actual and verifiable "Allowable Deductions": (i) out-of-pocket, third-party payment processing and currency system fees, commissions, and platform distribution fees (e.g., Apple, Google or Facebook platform fees); (ii) any governmental taxes (e.g., VAT, excise or sales or use tax, etc.) arising in connection with related receipts, but excluding any taxes on Licensee's net income; and (iii) charge- backs/refunds/cancellations/fraud. "Paid Currency" means virtual currency purchased using real money. "Virtual Digital Goods" means any virtual, digital representation of any actual or fictional thing or item within Zynga Poker, which is capable of being made available for distribution, placement, download or other display by electronic means. Any other deductions must be mutually agreed upon in advance and in writing by the parties.
+
+5
+
+Source: ALLIED ESPORTS ENTERTAINMENT, INC., 8-K, 8/15/2019
+
+
+
+
+
+c. Payment. All amounts payable and due will be made in U.S. dollars. If withholding taxes are required, Zynga may account for the required amount of such withholding taxes when calculating the Royalty or other payments payable prior to remittance to WPT. Zynga shall provide WPT with an official receipt or other equivalent documentation issued by the appropriate taxing authority or other evidence as is reasonably requested by WPT to establish that such taxes have been paid. Zynga shall pay all amounts accruing under this Agreement for any reporting period to WPT by check or wire transfer to the account specified by WPT in writing, concurrently with Zynga's delivery of the applicable report under Section 3(d), provided that payments will only be paid if the amount owed to WPT for any reporting period is greater than five hundred dollars ($500.00). An amount due of less than five hundred dollars ($500.00) will be accumulated to the next payment and will be included in the amount to be paid to WPT on the next payment date, again provided that the amount owed to WPT in the subsequent month exceeds five hundred dollars ($500.00). Accumulated amounts do not accrue any interest. d. Reporting. Zynga will, within thirty (30) days of the end of each calendar quarter, commencing with the first full calendar quarter following the Effective Date, furnish WPT with complete statements containing the following information with respect to all Net Revenue from the use of the WPT-brand on the Zynga platform, during the preceding period covered by such statement: the Territory; the amount due WPT (or the remaining unrecouped Annual Minimum Guarantee balance as applicable); Net Revenue; Royalties rate; the distribution channels or portals, the platform, the territory(ies), and itemized Allowable Deductions ("Royalty Statement(s)"). The amount shown to be payable to WPT shall be paid simultaneously with the rendition of the respective Royalty Statement. The statements and payments remitted hereunder shall be delivered to WPT via email to the following email address: [email protected] (ATTN: Deborah Frazzetta, VP, Finance. e. Audit Rights. Zynga shall keep full, complete and accurate books of account and records (collectively "records") covering all transactions relating to the subject matter of this Agreement in sufficient detail to enable the Royalties payable hereunder to be determined and verified. Zynga shall permit such records to be examined by authorized representatives of WPT, including such independent auditors as WPT may designate, during usual business hours, with advance notice, to verify to the extent necessary the Royalties paid hereunder, and WPT and its representatives shall use reasonable efforts to minimize disruptions to Zynga's business. Prompt adjustment shall be made by Zynga to compensate for any errors or omissions disclosed by such examination. If the adjustment is more than $1,500 in favor, then out-of-pocket costs of such examination shall be borne by Zynga. f. No Other Charges or Expenses. Neither party will be liable to pay the other party any other types of charges or expenses not agreed to in this Agreement or any related amendment signed by the Parties. 4. REPRESENTATIONS AND WARRANTIES; LIMITATIONS OF LIABILITY a. Each party represents and warrants to the other as follows: (i) it is duly authorized under applicable law and has the authority to enter into and perform this Agreement; (ii) this Agreement constitutes a valid and binding obligation of such party enforceable in accordance with its terms; (iii) the making of this Agreement by such party does not violate any agreement, right or obligation existing between such party and any third party; (iv) the marketing and promotional activities in Exhibit A shall not infringe or misappropriate third party rights, including, without limitation, any patent, trade name, trademark, copyright or other intellectual property or proprietary right and shall not invade or violate any right of privacy, publicity, personal or proprietary right, or other common law or statutory right, nor defame any person or entity in the United States and European Union (the "Principal Territories"), and to the knowledge of such party, outside the Principal Territories; provided that such party makes no representations regarding the Licensed Property or any other materials provided by Licensor as contemplated under this Agreement. b. DISCLAIMER. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO THE SUBJECT MATTER HEREOF, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ANY LEVEL OF BUSINESS OR SERVICE THAT MAY RESULT FROM THIS AGREEMENT, OR ANY WARRANTY OR CONDITION ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN THE INDUSTRY. c. LIMITATIONS ON LIABILITY/NO INJUNCTIVE RELIEF. EXCEPT IN CASES OF GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD, INDEMNIFICATION CLAIMS UNDER SECTION 5 OR BREACHES OF SECTION 2 (TRADEMARKS), 8 (CONFIDENTIALITY), OR 9 (NO AGENCY RELATIONSHIP), IN NO EVENT SHALL EITHER PARTY OR ITS OFFICERS, DIRECTORS, OR EMPLOYEES BE LIABLE TO THE OTHER PARTY IN CONNECTION WITH THE SUBJECT MATTER HEREOF, FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND, LOST PROFITS OR LOST REVENUE, WHETHER ARISING IN CONTRACT, TORT, NEGLIGENCE, STATUTE, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY THEREOF. IN NO EVENT SHALL THE NON-BREACHING PARTY BE ENTITLED TO EQUITABLE OR INJUNCTIVE RELIEF OF ANY KIND.
+
+6
+
+Source: ALLIED ESPORTS ENTERTAINMENT, INC., 8-K, 8/15/2019
+
+
+
+
+
+5. INDEMNIFICATION a. WPT shall indemnify, defend, and hold harmless Zynga and its Affiliates, and the respective directors, officers and employees of the foregoing (the "Zynga Indemnified Parties") from and against any and all third party claims, actions, suits, costs, liabilities, judgments, obligations, losses, penalties, expenses or damages (including, without limitation, reasonable legal fees and expenses) of whatsoever kind and nature imposed on, incurred by or asserted against any of the Zynga Indemnified Parties arising out of: (i) any breach or alleged breach by WPT of any representation, warranty or covenant made, by WPT pursuant to this Agreement; or (ii) WPT's non-compliance with any applicable federal, state or local laws or with any applicable regulations in connection with its performance of this Agreement. b. Zynga shall indemnify, defend, and hold harmless WPT and its Affiliates, and the respective directors, officers and employees of the foregoing (the "WPT Indemnified Parties") from and against any and all third party claims, actions, suits, costs, liabilities, judgments, obligations, losses, penalties, expenses or damages (including, without limitation, reasonable legal fees and expenses) of whatsoever kind and nature imposed on, incurred by or asserted against any of the WPT Indemnified Parties arising out: (i) any breach or alleged breach by Zynga of any representation, warranty or covenant made by Zynga pursuant to this Agreement; or (ii) Zynga's non-compliance with any applicable federal, state or local laws or with any applicable regulations in connection with its performance of this Agreement. c. In order to seek or receive indemnification hereunder in cases involving third-party claims the party seeking indemnification (the "Indemnified Party") must have promptly notified the other (the "Indemnifying Party") of any claim or litigation of which the Indemnified Party is aware and to which the indemnification relates; and the Indemnified Party must reasonably cooperate with Indemnifying Party in the defense or settlement of such claim or litigation. With regard to any claim or litigation to which the Indemnifying Party itself is not a party, the Indemnifying Party must have afforded the Indemnified Party the opportunity to participate in any compromise, settlement, litigation or other resolution or disposition of such claim or litigation. 6. TERMINATION a. Each party shall have the right at any time to terminate this Agreement without prejudice to any rights which it may have, whether pursuant to the provisions of this Agreement or otherwise in law or in equity or otherwise, upon the occurrence of any one or more of the following events: i. The other party breaches or fails to perform any of its material obligations provided for in this Agreement; ii. The other party is unable to pay its debts when due, or makes any assignment for the benefit of creditors, or files any petition under the bankruptcy or insolvency laws of any jurisdiction, county or place, or has or suffers a receiver or trustee to be appointed for its business or property, or is adjudicated a bankrupt or an insolvent; or iii. The other party asserts any rights in or to the terminating party's intellectual property in violation of this Agreement. a. In the event that any of these events of default should occur and a party elects to exercise its right to terminate this Agreement, such party shall give notice of termination in writing to the other party, which notice shall specify in reasonable detail the event(s) of default that give rise to such termination. The other party shall have thirty (30) days from the effective date of such notice in which to correct any such default(s) (except those which are not curable), and failing such correction by the end of such thirty (30) day cure period, this Agreement shall thereupon immediately terminate. 7. RIGHTS AND OBLIGATIONS UPON TERMINATION OR EXPIRATION. Upon expiration or termination of this Agreement: a. All rights granted to WPT by Zynga shall immediately revert to Zynga, and WPT shall promptly cease any and all marketing and promotional activities using Zynga's Licensed Property. b. All rights granted to Zynga by WPT shall immediately revert to WPT, and Zynga shall promptly cease any and all marketing and promotional activities using WPT's Licensed Property. c. Notwithstanding the foregoing, for each end user that previously downloaded a Zynga game that includes WPT's Licensed Property, and stored such Zynga game within such end user's device, WPT grants a license and right to continue to use, activate, operate, perform, store, use and display that game on the end user's device in perpetuity at no additional charge; provided, however, that Zynga shall use best efforts to offer end users updates to its games which no longer include WPT's Licensed Property after the Term. d. Notwithstanding any termination of this Agreement, nothing herein will obligate Zynga, any users of a Zynga game that includes WPT's Licensed Property or any third party platform or distribution partners to remove from the publicly available content regarding Zynga services or any user accounts with Zynga, any of the references to user interactions, experience points, achievements, item purchases or other engagements or metrics in the Zynga game(s) that were generated prior to the expiration or termination of this Agreement.
+
+7
+
+Source: ALLIED ESPORTS ENTERTAINMENT, INC., 8-K, 8/15/2019
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+
+
+
+
+e. Notwithstanding any termination of this Agreement, any Approved Content that includes Zynga's Licensed Property may remain in perpetuity in any media in which such Licensed Property was integrated into during the Term (e.g., televised WPT Tournaments or WPT Invitational Tournaments, social media posts, repurposed integrations for "best of" television programs) or for historical purposes (e.g., reference on WPT's website that Zynga-sponsored tour events took place as part of the tour). f. Sections 1, 3-7, and 8-10 of the Additional Provisions shall survive termination or expiration of this Agreement. 8. CONFIDENTIALITY. The parties acknowledge and agree that the subject matter of this Agreement constitutes "Business Purpose" and this Agreement and any Exhibits hereunder are "Confidential Information" of the parties as defined as "Information" in the Non- Disclosure Agreement between the parties dated August 24, 2017, and accordingly the restrictions relating to confidentiality and use thereof provided in the Non-Disclosure Agreement apply to any party's Confidential Information disclosed pursuant to this Agreement. In the event of a conflict between the Non-Disclosure Agreement and this Agreement, the terms of this Agreement will govern. 9. INDEPENDENT CONTRACTORS. The parties are independent contractors with respect to each other and nothing herein shall create any association, partnership, joint venture or agency relationship between them. Neither party shall have the right to obligate or bind the other party in any manner whatsoever, and nothing herein contained shall give, or is intended to give, any rights of any kind to any third persons. 10. MISCELLANEOUS a. Insurance. Each party agrees to carry liability insurance sufficient to cover the risks posed under this Agreement. b. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original and all of which shall constitute together but one and the same document. c. Notices. All notices and other communications given hereunder shall be in writing and shall be sent by courier service, express mail, personal delivery or mail to the respective addresses of the parties set forth above (or at such other address as such party may designate by notice to the other party). A copy of any notice to WPT shall also be sent to WPT Enterprises, Inc., ATTN: Legal, 1920 Main Street, Suite 1150, Irvine, CA 92614. A copy of any notice to Zynga shall also be sent to Office of the General Counsel, Zynga Inc., 699 8th Street, San Francisco, CA 94103 with a copy to [email protected]. Notice shall be deemed given as follows: upon delivery if sent by courier service, express mail or personal delivery; and five (5) days after the date of mailing, postage prepaid, certified or registered mail if sent by mail. d. Entire Agreement. This Agreement contains the full and complete understanding between the parties hereto with respect to the license granted hereunder and supersedes all prior agreements and understandings, whether written or oral, pertaining thereto. This Agreement cannot be modified except by a written instrument signed by each party hereto. e. Waiver. No waiver of any term or condition of this Agreement shall be construed as a waiver of any other term or condition and no waiver of any default under this Agreement shall be construed as a waiver of any other default. f. Force Majeure. In the event that either party is prevented from engaging in the marketing and promotional activities in Exhibit A manufacturing, distributing or selling the Licensed Property because of any act of God; unavoidable accident; fire, epidemic; strike, lockout, or other labor dispute; war, riot or civil commotion; act of public enemy; enactment of any rule, law, order or act of government or governmental instrumentality (whether federal, state, local or foreign); or other cause beyond such party's control, and such condition continues for a period of two (2) months or more, either party hereto shall have the right to terminate this Agreement effective at any time during the continuation of such condition by giving the other party at least thirty (30) days' notice to such effect. In such event, all payments made shall become immediately due and payable and this Agreement shall be automatically terminated. g. Governing Law and Forum. This Agreement will for all purposes be governed by and interpreted in accordance with the laws of the State of California without giving effect to any conflict of laws principles that require the application of the laws of a different state. Each of the parties hereto (i) irrevocably agrees that the federal and state courts in the Northern District of California shall have sole and exclusive jurisdiction over any suit or other proceeding arising out of or based upon this Agreement, (ii) submits to the venue and jurisdiction of such courts, and (iii) irrevocably consents to personal jurisdiction by such courts. h. Assignment. This Agreement shall bind and inure to the benefit of each party, its successors and assigns. Without the prior written consent of the other party, neither party shall assign or transfer any of its rights or obligations hereunder, in whole or in part, to any third party, and any purported assignment without such prior written consent shall be null and void and of no force and effect; except that notice, but no consent shall be required for such assignment or transfer in connection with an internal reorganization or sale of the transferring party, including by merger or other business combination, or a sale of substantially all of the assets of the transferring party. None of either party's rights hereunder shall devolve by operation of law or otherwise upon any receiver, liquidator, trustee or other party. i. Severability. In case any one or more of the terms contained in this Agreement shall be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining terms shall not in any way be affected or impaired thereby. The parties shall endeavor in good faith negotiations to replace the invalid, illegal or unenforceable terms with valid terms the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable terms.
+
+8
+
+Source: ALLIED ESPORTS ENTERTAINMENT, INC., 8-K, 8/15/2019
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+
+EXHIBIT A MARKETING AND PROMOTIONAL ACTIVITIES (the parties mutually agree to provide additional details and commitments) BY WPT: WPT shall promote the Zynga brand in the following activities: ● Prominent display of the Zynga or Zynga Poker brand in WPT Tournaments and WPT Invitational Tournaments, subject to venue approval, network approval and inventory space given existing sponsorship deals BY ZYNGA: Zynga shall promote the WPT brand in the following activities: ● Creation of a WPT-branded Zynga Poker Tournament Mode playable in the Zynga Poker game or other such use of the WPT brand on the Zynga platform as Zynga determines
+
+9
+
+Source: ALLIED ESPORTS ENTERTAINMENT, INC., 8-K, 8/15/2019
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+EXHIBIT B LICENSED PROPERTY (the parties mutually agree to provide additional details on allowable IP) WPT MARKS: ● WPT® ● WORLD POKER TOUR® ZYNGA MARKS: ● ZYNGA® ● ZYNGA POKER®
+
+10
+
+Source: ALLIED ESPORTS ENTERTAINMENT, INC., 8-K, 8/15/2019

full_contract_txt/AlliedEsportsEntertainmentInc_20190815_8-K_EX-10.34_11788308_EX-10.34_Sponsorship Agreement.txt

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+Exhibit 10.34 EVENT SPONSORSHIP AGREEMENT This Event Sponsorship Agreement ("Agreement") is made and effective as of February 1, 2019 (the "Effective Date"), by and between Newegg Inc. ("Newegg"), a Delaware corporation, and Allied Esports International, Inc., a Nevada corporation ("Allied"). Newegg and Allied are hereinafter referred to jointly as the "Parties" and each as a "Party." BACKGROUND A. Newegg, an online retailer of items including computer hardware and consumer electronics, is in the business of developing, marketing, selling and supporting gaming accessories and memory products, and proposes to provide promotional and product support as a sponsor for the HyperX Esports Arena Las Vegas ("the Arena"). B. Allied is an esports organization that owns and controls the Commercial Rights (as hereinafter defined) to the Arena and wishes to grant rights to Newegg in respect of Newegg's sponsorship of the Arena pursuant to this Agreement. C. Each of the Parties undertakes obligations to the other Party as provided in this Agreement. For valuable consideration received, including the Parties' respective covenants in this Agreement, the Parties hereby agree as follows: 1. Scope of this Agreement. Newegg agrees to provide certain financial sponsorship, including fees to Allied in connection with the Arena and Allied agrees to grant certain rights to Newegg, all as described in this Agreement. 2. Certain Definitions. When used in this Agreement, the following terms have the following meanings: 2.1 "Commercial Rights" means any and all rights of a commercial nature connected with the Arena, including image rights, broadcasting rights, new media rights, endorsement and official supplier rights, sponsorship rights, merchandising rights, licensing rights, advertising rights, hospitality rights and all intellectual property rights in and to the foregoing. 2.2 "Including," "Includes" and similar words means "including but not limited to" and shall mean in all contexts "without limitation." 2.3 "Intellectual Property Rights" means rights protecting or governing intellectual property rights, including all now known and hereafter existing: (i) copyright and related rights in original works of authorship and all rights to use, commercialize, and exploit such rights; (ii) rights on trademarks, service marks, trade names, logos, trade dress, indicia of origin, and other commercial names; (iii) trade secret rights including, without limitation, all rights in confidential information, trade secret, know-how and other proprietary and/or confidential materials and information, whether arising by law or contract; (iv) patent rights, rights in patentable inventions and processes, utility models, designs, algorithms and other industrial property rights; and (v) other intellectual property rights and proprietary rights of every kind and nature throughout the world, whether arising by operation of law, by contract, by license or otherwise in any form, media or technology now known or later developed. 2.4 "Newegg Marks" means the Newegg trademarks and logos set out in Schedule 1, together with any accompanying artwork, design, slogan, text and other collateral marketing signs of Newegg. 2.5 "Allied Marks" means Allied's trademarks to be used for all promotion, advertising and marketing of the Arena, as set out in Schedule 2, including the texts, slogans, logos, trademarks, images, photographs, information, audio and video materials and other materials owned (or licensed from a third party) by Allied and used in or in connection with the Arena, and including Allied's name and the names used for any parts of the Arena.
+
+1
+
+Source: ALLIED ESPORTS ENTERTAINMENT, INC., 8-K, 8/15/2019
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+
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+
+2.6 "Sponsorship Benefits" means the benefits Newegg will provide Allied, including the license granted in Section 6.1 and the fee stated in Schedule 3. 2.7 "Sponsorship Rights" means the bundle of rights, services and deliverables Allied will provide to Newegg as set out in Schedule 4, which includes the license of, and rights with respect to, Allied Marks granted in Section 5. 2.8 "Technology E-Commerce (or E-Tail)" means the Arena partnership category that Allied is granting to Newegg and is defined as including technology-focused products in categories including computer systems, components, electronics, gaming, networking, office solutions, software & services, automotive and industrial, home and tools, health & sports, and hobbies and toys. For purposes of clarity, this does not include apparel and accessories. 2.9 "Term" has the meaning given in Section 3 of this Agreement. 2.10 "Sponsorship Fee" has the meaning given in Schedule 3 of this Agreement. 2.11 "Venue" means the premises where events wi ll occur. 3. Term of this Agreement. This Agreement shall be valid for five (5) years from February 1, 2019 through January 31, 2024 unless this Agreement is terminated earlier pursuant to Section 14 (the "Term"). For the purpose of clarity, the second year of this Agreement starts February 1, 2020, and the third year of this Agreement starts February 1, 2021 the fourth year of this Agreement starts February 1, 2022, and the fifth and final year of this Agreement starts February 1, 2023. 4. Allied Obligations and Newegg Sponsorship Obligations 4.1 Allied shall provide, by the license granted in Section 5.1 and otherwise as appropriate, to or for the benefit of Newegg, the Sponsorship Rights, including generally providing advertising space in all of Allied's media and participation in Allied's marketing activities relating to the Arena 4.2 Newegg shall provide to Allied the Sponsorship Benefits set out in Schedule 3, including paying the Sponsorship Fee as provided in that Schedule. Any value-added, goods and services, or similar tax or duty imposed by any government or tax authority on any Sponsorship Benefit shall be borne solely by Allied. 4.3 During third-party event buyouts, Newegg's sponsorship benefits will run at the discretion of the third-party and may not be included for select events. Newegg's pass-through rights are limited to both Newegg and Allied-owned and operated events. 5. Allied's License to Newegg 5.1 Allied grants Newegg a non-exclusive, royalty-free, non-assignable, non-transferable, and non- sublicensable worldwide license to use, publicly display, transmit, broadcast, stream, distribute and reproduce the Allied Marks in all approved forms and in manners for the purposes of this Agreement during the Term. Allied acknowledges and agrees that Newegg shall not pay any fees or royalties for the license of the Allied Marks, except the Sponsorship Fee specified in Schedule 3. 5.2 Without limitation of any other provision of this Agreement, failure by Allied to comply with the provisions of Sections 5.1 shall be deemed as a material breach of this Agreement and Newegg has the right to terminate this Agreement subject first to the cure provisions in Section 14.1 and be discharged from any further obligation to pay the Sponsorship Fee. If any portion of the Sponsorship Fee shall have previously been paid for any period following such termination by Newegg, the Sponsorship Fee shall be prorated and Allied shall immediately refund the portion corresponding to the unused period of the Term.
+
+2
+
+Source: ALLIED ESPORTS ENTERTAINMENT, INC., 8-K, 8/15/2019
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+
+
+
+
+6. Newegg's License to Allied; Allied's Obligations Regarding Newegg Marks and Products 6.1 Newegg grants Allied a revocable, non-transferrable, non-assignable (whether voluntarily, or as a result of a change of control, or by operation of law), non-sublicensable, non-exclusive and limited license to use, during the Term, the Newegg Marks solely in connection with Allied's marketing and conduct of the Arena. 6.2 Allied acknowledges and agrees that Newegg has valuable goodwill and reputation in the Newegg Marks and that Newegg is and shall be at all times the sole and exclusive owner of rights, including Intellectual Property Rights, in and related to the Newegg Marks. Allied does not acquire any right, title, or interest in or to the Newegg Marks by virtue of the limited license granted in Section 6.1, or through Allied's permitted use of the Newegg Marks, other than the right to use such Newegg Marks in accordance with that license. Allied acknowledges that its use of the Newegg Marks pursuant to this Agreement, and all goodwill associated with such use, shall inure exclusively to the benefit of Newegg. Allied further acknowledges and agrees that Newegg shall have sole control and final editorial say, in Newegg's sole discretion, over the marketing/promotion, appearance, design, layout, placement, and presentation of Newegg's Products, including all packaging, advertisements and other marketing and promotional materials relating to the Newegg Products. 6.3 Allied shall use the Newegg Marks only in strict compliance with the terms and conditions of this Agreement. Allied's use of the Newegg Marks (a) shall be subject to Newegg's right of review and approval, and prior direction and control, to be exercised in Newegg's sole discretion, and (b) shall, at all times, meet or exceed Newegg's trademark-usage guidelines and quality standards which may be provided by Newegg from time to time ("Acceptable Quality Standards"). Without limiting any other provision of this Section 6.3, if at any time Newegg reasonably determines that Allied's use of the Newegg Marks fails to comply with this Agreement or to conform to the Acceptable Quality Standards, Allied shall, within five (5) days of receipt of notice from Newegg, correct its use of the Newegg Marks so that its use is in compliance with this Agreement and the Acceptable Quality Standards or cease using, and remove, the Newegg Marks from all of Allied's videos, streams and other publications in all media ("Allied's Correction Action"). Allied's obligation to take and complete Allied's Correction Action shall survive any expiration or termination of this Agreement. 6.4 Allied shall not at any time do, or cause to be done, directly or indirectly any act that may impair or tarnish any part of Newegg's goodwill and reputation in the Newegg Marks and the Newegg Products. Without limiting the preceding sentence, Allied agrees not to use the Newegg Marks in any advertising materials or conduct any activities in a manner that may be seen to unreasonably modify, alter, detract from or impair the integrity, character, or dignity of the Newegg Marks or reflect unfavorably upon Newegg or Newegg Products. 6.5 In exercise of the rights granted in Section 6.1, Allied shall always use the Newegg Marks in a manner that significantly distinguishes them from any surrounding text or other logo or source designation. Except as may be expressly authorized in writing by Newegg, Allied shall not use the Newegg Marks as a co-brand with any third-party mark. Allied agrees to use the Newegg Marks only in the form and with only the content provided by Newegg. The Newegg Marks may not be altered in any manner. The Newegg Marks must include a ™ or ® symbol as part of the Newegg Marks, as provided by Newegg. Where practicable, the following trademark notice must appear in close proximity to the Newegg Marks and the ownership of the Newegg Marks must be identified: "Newegg and the Newegg logo are trademarks of Newegg Incorporated." 7. Exclusivity of Sponsorship Rights for Newegg 7.1 In all of Allied's actions and publications (in all media and formats) in connection with the marketing and conducting of the Events, where possible and appropriate, Allied shall where reasonably practicable communicate that Newegg is the exclusive sponsor of the Arena for the technology e-commerce and online retailer categories. 7.2 Allied shall not endorse, or permit the marketing of any other company whose principal business is as an e-commerce provider at or in connection with the Arena. For purposes of clarity, this is not meant to prohibit incidental third-party endorsements not controlled by Allied such as individual player and team sponsorships of participants in events at the Arena.
+
+3
+
+Source: ALLIED ESPORTS ENTERTAINMENT, INC., 8-K, 8/15/2019
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+
+
+8. Refund or Reduction of Sponsorship Fee 8.1 Without limitation of other rights of Newegg under this Agreement, the Parties agree to negotiate a reasonable reduction and, where applicable, the refund of the Sponsorship Fee to reflect any material restriction in the benefit or value of the Sponsorship Rights to Newegg, including as a result of any change in any laws or regulatory provisions which has an adverse impact on the value of the Sponsorship Rights. 8.2 If Allied fails to perform or provide the Sponsorship Rights in accordance with the terms of this Agreement, Newegg shall, without limiting its other rights or remedies, have one or more of the following rights: (a) to refuse to accept any subsequent performance of the Sponsorship Rights which Allied attempts to make; and (b) where Newegg has paid in advance for Sponsorship Rights that have not been provided by Allied, to have such sums refunded by Allied. 9. Certain Material Covenants of Allied 9.1 Allied shall organize and host events, both online and at the Venue, at its sole cost and expense in accordance with the terms of this Agreement, and perform and cause to be performed the Sponsorship Rights with reasonable skill and care and in accordance with generally recognized commercial practices and standards. 9.2 Allied shall use its best endeavours to deliver or ensure the delivery to Newegg of each and all of the Sponsorship Rights. Without limitation of the preceding sentence or any other provision of this Agreement, Allied shall identify and name Newegg as a Founding Partner, and as the exclusive Technology E-Commerce (or E-tail) Partner, of the Arena and in all of Allied's marketing materials in connection with the Arena where reasonably practicable. 9.3 Allied shall ensure that all relevant Newegg signage and advertising to be delivered as part of the Sponsorship Rights is properly in place, and operational and not concealed or obscured from view. 9.4 Allied confirms that, whenever possible, it will ensure that Newegg Marks will be present in accordance with this Agreement and that Newegg Marks are incorporated into all promotional, advertising and publicity material published in connection with the Arena where reasonably practicable. 9.5 Allied shall comply with: (a) all applicable laws, rules, regulations, regulatory policies, guidelines or codes applicable to the Arena and Allied's activities to be carried out in performing its obligations in accordance with this Agreement, including all such guidelines and codes issued by statutory, regulatory and industry bodies, and further, will not pay, deliver, or offer or promise to pay or deliver, any funds or other item of value excluding the Products, either directly or through any third party, to any state or federal governmental official for any reason whatsoever other than the payment of statutory and administrative fees, charges and taxes that are due from Allied as a result of its performance under this Agreement; (b) the terms and conditions, rules of conduct and/or community guidelines of any other online platform (including any advertising policies); and (c) any conditions attached to any licences or consents issued in connection with the Arena including regarding health and safety and crowd security measures at the Arena. 9.6 Allied accepts that, regardless of its obligations to promote the Arena within the terms of this Agreement, Newegg shall be entitled to advertise, publicise, promote and otherwise commercially exploit its own Products, goodwill and reputation through Newegg's association with the Arena on and subject to the terms of this Agreement throughout and after the Term.
+
+4
+
+Source: ALLIED ESPORTS ENTERTAINMENT, INC., 8-K, 8/15/2019
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+9.7 Allied shall make available to Newegg in connection with the Arena Allied's Marks in order for Newegg to exploit and make best use of the Sponsorship Rights. 9.8 For the avoidance of doubt, Allied shall be at all times responsible for its employees', agents' and sub- contractors' compliance with the obligations set out in this Section 9. 10. Certain Material Covenants of Newegg 10.1 Newegg shall exercise the Sponsorship Rights in accordance with the terms of this Agreement. For the avoidance of doubt, Newegg shall not be entitled to use or exploit any of the Commercial Rights other than the Sponsorship Rights in any way except in accordance with this Agreement. 10.2 Newegg shall provide to Allied, at Newegg's cost and expense, all necessary materials including artwork of Newegg Marks in a format and within print deadlines reasonably specified by Allied in order for it to be reproduced under the control of Allied for the fulfilment of the Sponsorship Rights. 11. Representations and Warranties 11.1 Each Party represents and warrants to the other Party that it has, and will maintain throughout the Term, the right, power and authority to enter into and perform this Agreement and to grant the licenses as provided in this Agreement; that it has procured all rights, permissions and approvals necessary for the performance of its obligations, including the grant of licenses, in this Agreement; and that it is not bound by any agreement with any third party that adversely affects its performance of its obligations in, or that would preclude it from fully complying with the provisions of, this Agreement. 11.2 Each Party covenants that it shall not make, publish or communicate to any person or entity in any online or other public forum any defamatory, misleading or disparaging remarks, comments or statements concerning (a) the other Party or any of its affiliates, or any of such Party's or its affiliates' respective employees, officers, directors, agents, officials, equity holders, investors or sponsors, or (b) any software, products or services of the other Party or any affiliate. 11.3 Each Party represents and warrants that it is not a government-owned entity and that neither its management personnel nor any of its employees are government officials. 11.4 Newegg represents and warrants that it holds the necessary rights to permit Allied to use Newegg's Marks in accordance with the license granted in Section 6.1; and that to Newegg's actual knowledge the use, reproduction, distribution or transmission of Newegg's Marks will not violate any criminal laws, or any rights of any third parties, including, but not limited to, such violations as infringement or misappropriation of any copyright, patent, trademark, trade secret, music, image, or other proprietary or property right, false advertising, unfair competition, defamation, invasion of privacy or rights of celebrity, violation of any anti-discrimination law or regulation, or any other right of any person or entity. 11.5 Allied represents and warrants that it holds the necessary rights to permit Newegg to use Allied's Marks and accept the Commercial Rights in accordance with the Sections 5.1 and 9.7; and that to Allied's actual knowledge the use, reproduction, distribution or transmission of Allied's Marks will not violate any criminal laws, or any rights of any third parties, including, but not limited to, such violations as infringement or misappropriation of any copyright, patent, trademark, trade secret, music, image, or other proprietary or property right, false advertising, unfair competition, defamation, invasion of privacy or rights of celebrity, violation of any anti-discrimination law or regulation, or any other right of any person or entity.
+
+5
+
+Source: ALLIED ESPORTS ENTERTAINMENT, INC., 8-K, 8/15/2019
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+
+12. Indemnity and Liability 12.1 Each Party ("Indemnitor") will defend, indemnify and hold the other Party (including associated officers, directors, shareholders, employees, agents and affiliates) (cumulatively, "Indemnitee") harmless from and against any and all losses, damages, claims, liabilities and expenses (including reasonable legal fees), suffered or incurred as a result of or in connection with any claim, suit, action, demand, or proceeding brought against Indemnitee based upon (a) a claim of a failure to perform, or a breach by Indemnitor of, any obligation, warranty, representation or covenant in this Agreement; (b) a claim of personal injury or property damage arising out of the fault or negligence of Indemnitor, its representatives, agents, or employees; or (c) a claim of infringement or misappropriation of any patent, trademark, copyright or other proprietary right held by any third party. 12.2 EXCEPTING ONLY CLAIMS MADE PURSUANT TO SECTION 12.1, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING ANY LOST PROFITS, LOST REVENUES OR LOST SAVINGS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND/OR THE PRODUCTS, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF THE PARTY HAS BEEN ADVISED, KNOWS OR SHOULD KNOW, OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. 13. Confidentiality 13.1 Confidential Information. Each Party (the "Disclosing Party") may from time to time during the Term of this Agreement disclose to the other Party (the "Receiving Party") certain information regarding the Disclosing Party's business, including, without limitation, technical, marketing, financial, employee, planning and other confidential or proprietary information, which information is either marked as confidential or proprietary (or bears a similar legend) or which a reasonable person would understand to be confidential given the circumstance and nature of the disclosure ("Confidential Information"), whether disclosed orally or in writing. Without limiting the foregoing, Newegg's Confidential Information shall include information and materials provided by Newegg in connection with this Agreement. Confidential Information does not include information that: (i) is in the Receiving Party's possession at the time of disclosure as shown by credible evidence; (ii) before or after it has been disclosed to the Receiving Party, enters the public domain, not as a result of any action or inaction of the Receiving Party; (iii) is approved for release by written authorization of the Disclosing Party; (iv) is disclosed to the Receiving Party by a third party not in violation of any obligation of confidentiality; or (v) is independently developed by the Receiving Party without reference to Confidential Information of the Disclosing Party, as evidenced by such Party's written records. 13.2 Protection of Confidential Information. The Receiving Party will not use, and will cause its Representatives not to use, any Confidential Information of the Disclosing Party for any purpose other than performing its obligations or exercising its rights under this Agreement, and will not disclose the Confidential Information of the Disclosing Party to any party other than Receiving Party's employees, agents, directors, officers, auditors, attorneys, other professional advisors, regulators and contractors (collectively, the "Representatives") on a "need to know" basis, provided such Representatives are under a contractual obligation with Receiving Party to maintain the confidentiality of such Confidential Information, which obligation is consistent with, and no less protective of Confidential Information, than the terms of this Section 13. The Receiving Party will protect the Disclosing Party's Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care. 13.3 Confidentiality of Agreement. Other than as permitted in this Agreement, neither Party will disclose any terms of this Agreement except: (a) as required by law, or (b) pursuant to a mutually agreeable press release. Press releases concerning Newegg's sponsorship of the Events will only be published after written preapproval by both Parties, provided that if for any reason the Parties cannot agree about a specific release, Newegg shall have the ultimate decision-making right concerning whether to issue any press releases about this Agreement or Newegg's sponsorship of the Events. 13.4 Return of Confidential Information. Upon any termination or expiration of this Agreement, Allied shall deliver to Newegg all originals and copies of any material in any form containing or representing Newegg's Marks and other Confidential Information of Newegg or, at Newegg's request, shall destroy the same and provide Newegg a certification of the destruction. 13.5 Expiry or termination of this Agreement shall not affect any accrued rights, liabilities or obligations dealing with protection of the Confidential Information of either Party. The expiration or termination of this Agreement shall also not affect the obligations of this Section 13 with respect to any of Newegg's Confidential Information that is protected as a trade secret, which shall remain covered by this Section 13 for the duration of the trade secret.
+
+6
+
+Source: ALLIED ESPORTS ENTERTAINMENT, INC., 8-K, 8/15/2019
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+14. Expiry or Termination 14.1 Failure by Allied to perform and comply with any of its obligations in sections 5, 6, 7, 9, 11, 12 and 13 of this Agreement shall be deemed a material breach of this Agreement and Newegg shall have the right to terminate this Agreement immediately if Allied fails to cure the breach within fifteen (15) days following Newegg's written notice of the breach. 14.2 Each Party may also terminate the Agreement for convenience after Contract Year 2 (as defined in Section 14.4) by providing written notice to the other Party at least sixty (60) calendar days prior to the effective date of such termination 14.3 Except as provided in (i) Section 5.2 for immediate termination subject to cure provisions in Section 14.1 , (ii) Section 14.1 for termination following notice, and (iii) Section 14.5 for immediate termination without notice, if either Party defaults in the performance, or breaches any provision, of this Agreement, then the non- defaulting Party may give written notice to the defaulting Party requiring the default or breach to be cured, and if the default or breach is not cured within fifteen (15) days of the receipt of the notice, this Agreement shall, without prejudice to any accrued right, automatically terminate at the end of the fifteen (15) day period. 14.4 During the first two (2) contract years of Term (i.e., February 1, 2019 through January 31, 2020 ("Contract Year 1") and February 1, 2020 through January 31, 2021 ("Contract Year 2")) and notwithstanding any other provisions of this Agreement, if Newegg defaults on or breaches any its obligations under the Agreement for any reason and fails to cure such default or breach within fifteen (15) days following receipt of Allied's written notice of such default or breach, the Parties acknowledge and agree that (i) Newegg shall remain responsible and/or liable for the full payment or, if applicable, the remaining portion of the Sponsorship Fee for Contract Year 1 and Contract Year 2, and (ii) Allied shall have the right to pursue any additional legal and equitable remedies in connection with the Agreement. 14.5 This Agreement shall terminate immediately, without any requirement of notice, (i) upon the institution against or the filing by either Party of insolvency, receivership or bankruptcy proceedings; or (ii) upon either Party making an assignment for the benefit of its creditors. 14.6 Upon termination for any reason, Newegg shall, without prejudice to its other rights, be immediately discharged of all obligations to pay any further Sponsorship Fees not yet rendered or to provide any further Sponsorship Benefits that have not already been delivered to Allied. Further, if Sponsorship Fees have been paid in advance, the Sponsorship Fee shall be prorated through the date of termination and Allied shall refund the portion corresponding to the unused period of the Term. 14.7 Notwithstanding the expiry or termination of this Agreement, both Parties shall not, and shall ensure that its Representatives shall not, do any of the following: (a) make any form of representation (whether express or implied) that Allied remains under the sponsorship of or in public association with Newegg; or (b) commit any act that would reasonably be seen as disparaging (whether expressly or implicitly) the Newegg and Allied brand names, reputations or any of their respective products or offerings. 14.8 Upon expiry or termination of this Agreement, Newegg's license granted to Allied in Section 6.1 and all other rights granted to Allied in this Agreement shall terminate and Allied shall cease any and all uses of Newegg's Marks. 14.9 All provisions of this Agreement that by their nature extend beyond expiry or termination of this Agreement shall remain in full force and effect notwithstanding the expiry or termination of this Agreement.
+
+7
+
+Source: ALLIED ESPORTS ENTERTAINMENT, INC., 8-K, 8/15/2019
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+
+
+15. Miscellaneous 15.1 Relationship. The relationship of the Parties is solely that of independent contractors, and each Party will represent itself to any third parties only as such. Neither Party has the power to bind, represent or act for the other Party. The Parties have no agency, partnership, joint venture or fiduciary duties to each other. 15.2 Publicity. The Parties shall co-operate in good faith on all announcements and press releases regarding this Agreement and Newegg's sponsorship arrangement with Allied and Newegg shall determine in its sole discretion whether any such announcement or press release shall be published. Press releases concerning Newegg's sponsorship of the Arena will only be published after written preapproval by both Parties and Newegg shall have the final decision making right concerning any press releases regarding Newegg's sponsorship arrangement with Allied. 15.3 Expenses. Each Party shall be responsible for its own costs and expenses in connection with all matters relating to the negotiation and performance of this Agreement, unless otherwise agreed in writing by the Parties. 15.4 Assignment. Neither Newegg nor Allied shall have the right or power to assign or transfer any part of its rights or obligations under this Agreement without the prior consent in writing of the other Party. 15.5 Injunctive Relief. Each Party agrees that money damages for a breach of its obligations under the provisions of this Agreement protecting Confidential Information and those governing Intellectual Property Rights may be an inadequate remedy for the loss suffered by the other Party and the other Party shall have the right to obtain injunctive relief from any court of competent jurisdiction in order to prevent the breach, or further breach as the case may be, of any such obligation, without limiting the other Party's right to pursue any and all remedies provided in such event by law or equity. 15.6 Non-Waiver. All waivers must be in writing. No failure or delay by a Party in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege preclude further exercise thereof or of any other right, power or privilege. 15.7 Severability. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the provision shall be modified as necessary to conform to such laws or, if such modification would be inconsistent with the intent of the Parties, the provision shall be severed from this Agreement, and this Agreement shall be interpreted without reference to the severed provision with the remaining provisions continuing with full force and effect. 15.8 Entire Agreement. This Agreement, including the attached Schedules, which are incorporated herein in their entirety, constitutes the entire agreement of the Parties with respect to the subject matter hereof, and supersedes all prior agreements, representations, understandings, written or oral. No amendment or modification of any provision of this Agreement shall be binding upon the Parties unless made by a written instrument signed by a duly authorized representative of each Party. 15.9 Notice. Any notice required under this Agreement shall be given in writing, in the English language and sent to the address or e-mail address of the other Party as set out below its signature of this Agreement, or such other address or email address as shall have been notified to the other Party in accordance with this provision. Notices shall be sent by registered post or equivalent, facsimile, courier or by electronic transmission. If posted, the notice shall be deemed to have been received five (5) working days after the date of posting or, in the case of a notice to an addressee not in the country of the sender, ten (10) working days after the date of posting. If sent by facsimile or electronic transmission, notice shall be deemed received upon confirmation of complete receipt being given by the intended receiving Party. If couriered, notice will be deemed to have been received on delivery.
+
+8
+
+Source: ALLIED ESPORTS ENTERTAINMENT, INC., 8-K, 8/15/2019
+
+
+
+
+
+15.10 Governing Law and Jurisdiction. Without reference to choice or conflict of law principles, this Agreement shall be governed by and construed in accordance with the laws of the State of California, USA. The Parties unconditionally submit to exclusive jurisdiction of and accept as the exclusive venue for any legal proceeding involving this Agreement the state and federal courts located in the County of Los Angeles, California. Before any Party (the "Complaining Party") may bring any legal proceeding against the other (the "Non Complaining Party"), the Complaining Party shall first make a reasonable and good faith attempt to resolve all disputes privately by notifying and providing to the Non Complaining Party of the Complaining Party's complaints, reasons and supporting evidence for the complaints, and the reasonable steps Complaining Party would like the Non Complaining Party to take in order to address the complaints. If for any reason the Non-Complaining Party disagrees with either the complaint or the steps suggested to address the complaints, the Parties shall discuss and work on an amicable solution for at least thirty (30) days before the Complaining Party may bring any legal proceeding to resolve the complaints. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation, or validity thereof, including the determination of the scope and applicability of this agreement to arbitrate, shall be determined by arbitration in Los Angeles County, California, by an arbitrator of JAMS, in accordance with its arbitration rules and procedures then in effect. Judgment on the arbitrator's award may be entered in any court having jurisdiction. The prevailing Party in any dispute involving this Agreement shall be entitled to recover from the other Party its costs, expenses, and reasonable attorneys' fees (including any fees for expert witnesses, paralegals, or other legal service providers). This Section 15.10 shall not preclude or place any condition on any Party from seeking injunctive relief from a court of appropriate jurisdiction. 15.11 Third Party Rights. This Agreement does not confer any rights or remedies on any third party. 15.12 Counterparts. This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall be deemed to be an original and all of which counterparts taken together shall constitute one and the same instrument. 15.13 Headings. All section headings contained in this Agreement are for convenience or reference only, do not form a part hereof and shall not in any way affect the meaning or interpretation of this Agreement. 15.14 Force Majeure. Neither Party will be liable for any delays in the performance of any of its obligations hereunder due to causes beyond its reasonable control, including earthquake, fire, strike, war, riots, acts of any civil or military authority, acts of God, judicial action, unavailability or shortages of labor, materials or equipment, terrorism or threat thereof, outbreak of disease or other public health hazard, failure or delay in delivery by suppliers or delays in transportation. In such event the Party unable to meet its obligations will use all best efforts to remedy its delayed performance and will promptly notify the other Party in writing of the circumstances affecting its timely performance.
+
+9
+
+Source: ALLIED ESPORTS ENTERTAINMENT, INC., 8-K, 8/15/2019
+
+
+
+
+
+IN WITNESS WHEREOF, the Parties have executed this Agreement acting through their duly authorized representatives as of the Effective Date. "Newegg" "Allied" Newegg Inc. Allied Esports International, Inc. By /s/ Mitesh Patel By: /s/ Judson Hannigan Name: Mitesh Patel Name: Judson Hannigan Title: VP, Marketing Title: CEO Newegg Inc. Allied Esports International, Inc. Address: Newegg Inc. 17560 Rowland St. City of Industry, CA 91745 USA
+
+Address: Allied Esports International, Inc. 4000 McArthur Blvd, 6t h Floor Newport Beach, California 92660 Contact: +1 (714) 435-2600 Contact: +1 714-265-7323 Email: Email: [email protected] Attention: Legal Department By Newegg Legal at 11:40 am, Feb 25, 2019 Attention: Judson Hannigan
+
+10
+
+Source: ALLIED ESPORTS ENTERTAINMENT, INC., 8-K, 8/15/2019

full_contract_txt/Apollo Endosurgery - Manufacturing and Supply Agreement.txt

@@ -0,0 +1,465 @@
+Exhibit 10.19 CONFIDENTIAL TREATMENT REQUESTED Certain portions of this document have been omitted pursuant to a request for Confidential Treatment and, where applicable, have been marked with "[***]" to indicate where omissions have been made. The confidential material has been filed separately with the Securities and Exchange Commission.
+
+MANUFACTURING AND SUPPLY AGREEMENT
+
+This Manufacturing and Supply Agreement (this "Agreement") is entered into as of the Effective Date (as defined below) by and between (1) Apollo Endosurgery, Delaware corporation having offices at 1120 S Capital of Texas Highway #300, Austin, TX 78746 ("APOLLO"), and (2) Establishment Labs, S.A a corporation organized under the laws of Costa Rica and having a principal place of business at Coyol Free Zone, B15, Alajuela, 20113, Costa Rica ("ESTABLISHMENT"). APOLLO and ESTABLISHMENT shall hereinafter be individually referred to as a "Party" and collectively as the "Parties."
+
+RECITALS
+
+A. APOLLO is engaged in the research and development, manufacture, distribution and marketing of certain medical devices.
+
+B. ESTABLISHMENT is engaged in the contract manufacturing and packaging of certain medical device products.
+
+C. APOLLO desires that ESTABLISHMENT be the manufacturer and supplier of the product(s) outlined on Exhibit A of this Agreement ("Product") for APOLLO.
+
+D. APOLLO and ESTABLISHMENT desire to enter into this Agreement governing the supply of the Product upon the terms and conditions contained herein.
+
+AGREEMENT
+
+NOW THEREFORE, in consideration of the covenants contained herein, the above recitals, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:
+
+1. DEFINITIONS
+
+1.1"Affiliates" of a Party shall mean any corporation or other business entity controlling, controlled by, or under common control with such Party.
+
+1.2"Certificate of Conformance" or "COC" shall mean a document prepared by ESTABLISHMENT containing at a minimum: product name, Lot (defined below) number, lot quantity and a statement indicating compliance to all product specifications. Each COC shall be signature approved by ESTABLISHMENT's Quality Assurance department.
+
+1.3"Control" (including "controlling", "controlled by" and "under common control with" of any party, corporation, or other business entity) shall mean the direct or indirect ownership of at least fifty percent (50%) of the voting or income interest in such party, corporation, or other business entity, respectively.
+
+-1-
+
+
+
+
+
+1.4"Current Good Manufacturing Practices" (abbreviated "GMPs" or "cGMPs") shall mean, a) for any period during the Term during which ESTABLISHMENT has received FDA certification, the standards established by the United States Food and Drug Administration (the "FDA") for current Good Manufacturing Practices, as specified in FDA 21 C.F.R. §820 Quality Systems Regulations (or its successor provisions); and b) ISO 13485 Medical Devices - Quality Management Systems and other sections so designated by the title "Good Manufacturing Practices"; and c) as applicable to each respective Product to be manufactured and/or supplied by ESTABLISHMENT.
+
+1.5"Effective Date" shall mean December 5, 2014.
+
+1.6"Facilities" shall mean ESTABLISHMENT's manufacturing facilities at Coyol Free Zone, B15, Alajuela, 20113, Costa Rica.
+
+1.7"Lead Time" shall mean the time period that begins on the day ESTABLISHMENT receives a Purchase Order (defined below) for Product from APOLLO and ends on the day ESTABLISHMENT is required to deliver the Product to APOLLO.
+
+1.8"Lot" shall mean a defined quantity of starting material, packaging material or product processed in one process or series of processes so that it could be expected to be homogeneous.
+
+1.9"Product" shall mean the product(s) to be manufactured and supplied by ESTABLISHMENT to APOLLO under Purchase Order(s) issued under this Agreement and as more specifically detailed in Exhibit A attached hereto.
+
+1.10 "Purchase Order" shall mean a written purchase order issued to ESTABLISHMENT by APOLLO for the purchase of Product under this Agreement.
+
+1.11"Span of Control" shall mean all operational activities that are necessary to occur at ESTABLISHMENT and component suppliers, if any, that are related to the procurement and manufacture of the Product.
+
+1.12 "Specifications" shall mean the Product specifications provided to ESTABLISHMENT by APOLLO. The Specifications shall include all necessary test protocols, packaging and labeling specifications, bills of materials and other documentation required to describe, control, and assure the quality of the manufacture of the Product.
+
+1.13 "WIP" shall mean Work In Progress.
+
+2. TERM AND TERMINATION
+
+2.1Term. This Agreement shall commence on the Effective Date and shall be valid for a period of five (5) years with automatic renewal of one year thereafter until terminated
+
+-2-
+
+
+
+
+
+by either party with one (1) year written notice prior to the expiration of the initial period or any extension period thereof.
+
+2.2Termination.
+
+(a) Either Party may terminate this Agreement (i) for material breach upon one hundred and twenty (120) days written notice specifying the nature of the breach, if such breach has not been substantially cured within the one hundred twenty (120) day period, or (ii) if the other Party shall formally declare bankruptcy, insolvency, reorganization, liquidation, or receivership; or is named in an action for bankruptcy, insolvency, reorganization, liquidation, or receivership proceedings, and fails to remove itself from such proceedings within ten (90) days from the date of institution of such proceedings.
+
+(b) In the event this Agreement is terminated for reasons other than material breach by ESTABLISHMENT, APOLLO shall pay ESTABLISHMENT for all work, material purchases, WIP and finished goods performed pursuant to any unfinished Purchase Order(s) prior to such termination in addition to reparation charges outlined on Exhibit A of this Agreement.
+
+(c) In the event this Agreement is terminated for any reason, ESTABLISHMENT shall promptly cease performing any work not necessary for the orderly close out of the affected Purchase Order(s) or for the fulfillment of regulatory requirements.
+
+(d) Within thirty (30) days following the termination of this Agreement, and upon receiving payment for any outstanding invoices for previously fulfilled Purchase Orders, ESTABLISHMENT shall deliver to APOLLO all data and materials provided by APOLLO to ESTABLISHMENT for the manufacturing and supply activities under the impacted Purchase Order(s). Within this same timeframe APOLLO shall provide ESTABLISHMENT any reasonable compensation relative to work, materials, and WIP purchased specifically to support APOLLO's Product. Termination of this Agreement, for any reason, shall not release either Party from liability which at said time has already incurred, nor affect in any way the survival of any rights, duties or obligations of either Party which are expressly stated elsewhere in this Agreement to survive termination. Without limiting the generality of the foregoing, the Parties agree that Sections 2.2 and Articles 6, 7, 8, 9, and 10 shall survive termination of this Agreement for any reason.
+
+3. MANUFACTURE AND SUPPLY OF PRODUCT
+
+3.1Performance Standards. ESTABLISHMENT shall manufacture the Product in accordance with the Specifications of this Agreement, and shall comply with all quality system requirement communicated by Apollo from time to time, ISO 13485:2012 and any applicable cGMPs and all other applicable local, United States or European regulations or laws in connection with the manufacture, testing, packaging, labeling, shipping, and handling of the Product.
+
+-3-
+
+
+
+
+
+(a) ESTABLISHMENT shall be responsible for normal and daily maintenance of all consigned equipment provided by APOLLO, as described in Exhibit C. APOLLO will be responsible for all other repair and/or replacement costs relating to loaned or consigned equipment due to normal wear and use. Unless otherwise agreed upon in writing, at APOLLO's sole discretion, this equipment will be insured by APOLLO while located in ESTABLISHMENT's manufacturing plants.
+
+3.2ESTABLISHMENT Representations. ESTABLISHMENT makes the following representations to APOLLO:
+
+(a) ESTABLISHMENT is duly organized, validly existing and in good standing under the laws of Costa Rica. ESTABLISHMENT has all requisite power and authority to own, operate and lease its properties and to carry on its business as now conducted. ESTABLISHMENT has full corporate power and authority to execute, deliver and perform this Agreement; all corporate actions of ESTABLISHMENT necessary for such execution, delivery and performance have been duly taken; and this Agreement is a valid and binding obligation of ESTABLISHMENT.
+
+ESTABLISHMENT shall perform all manufacturing, storage, handling, and testing of the Product(s) at the Facilities. ESTABLISHMENT warrants that the Facilities have been periodically inspected by its Notified Body's representatives and auditors and/or any other required government agency and are in good standing with said governmental agencies, are fully compliant with ISO 13485:2012 and that all employees working on the Product whose responsibilities involve work which must be performed under ISO 13485:2012 standards have been properly trained in the requirements of those standards. ESTABLISHMENT additionally warrants that the Facilities hold all necessary licenses and permits from applicable local, national, and European regulatory bodies, required for the manufacture and testing of the Product and that all such licenses and permits are in full force and effect.
+
+(b) ESTABLISHMENT shall comply with all applicable export and import control laws and regulations.
+
+3.3Suppliers. Except as otherwise agreed upon in writing ESTABLISHMENT assumes the responsibility for interacting with all chemical, component and packaging suppliers as required to deliver the Product in accordance with the applicable Purchase Order, including the Specifications, and this Agreement. Payment to the suppliers shall be handled directly by ESTABLISHMENT unless otherwise agreed upon in writing by APOLLO. ESTABLISHMENT shall not change its raw material, component or packaging materials without the prior written consent of APOLLO, which consent shall not be unreasonably withheld. With respect to the supply of the silicone raw materials for the shell and sheath product components, APOLLO shall acquire materials from a third party supplier and arrange for delivery to ESTABLISHMENT and ESTABLISHMENT shall be responsible for inspecting said components to ensure that they meet chemical, component and packaging specifications.
+
+-4-
+
+
+
+
+
+4. PRICING AND PAYMENT; Fixtures and Tooling
+
+4.1Product Prices. Pricing for the Product ordered per the terms of this Agreement is set forth in Exhibit A attached hereto. Any penalty for failure to purchase a designated quantity of product for a defined period, if any, shall be clearly described in Exhibit A or in a written amendment. Any future modification to pricing shall be mutually agreed upon and may be captured in a revised Exhibit A or a written amendment signed by both Parties.
+
+4.2Payment Terms. Unless otherwise agreed to by ESTABLISHMENT in writing, ESTABLISHMENT shall invoice APOLLO for Product ordered at the time of shipment and APOLLO shall pay each invoice within thirty (30) days from date of invoice. Each invoice shall set forth, in U.S. Dollars, the applicable price for the shipment properly determined in accordance with the provisions of this Agreement. If APOLLO disputes any portion of an invoice received from ESTABLISHMENT the Parties shall use good faith efforts to reconcile the disputed amounts as soon as practicable. Invoices should be sent to the physical and email addresses as specified in writing by APOLLO in the applicable Purchase Order.
+
+4.3Fixtures and Tooling. In addition, Apollo will pay as set forth in Exhibit A for certain fixtures and tooling to be set forth in Exhibit C, and Apollo will maintain all right, title and interest in and to such fixtures and tooling. During the Term, fixtures and tooling will be identified to Apollo and will be subject to the requirements for ESTABLISHMENT to maintain set forth as part of the Services in Exhibit A. The parties will amend Exhibit C from time to time in writing to set forth an accurate list of such fixtures and tooling. With respect to all tooling and fixtures purchased by Apollo in connection with the manufacture and supply of Product and provision of Services hereunder and listed on Exhibit C (which, in accordance with this Agreement, Apollo shall retain all right, title and interest in and to), for so long as ESTABLISHMENT maintains possession of such tooling and fixtures, Establishment will retain, maintain and use such fixtures and tooling in the ordinary course of business (normal wear and tear excepted) consistent with its handling of other tooling and fixtures and will use such tooling and fixtures only for manufacturing and supply of Product and provision of Services to APOLLO as provided in this Agreement.
+
+5. FORECASTS, PURCHASE ORDERS AND DELIVERY
+
+5.1Forecasts. APOLLO shall provide ESTABLISHMENT on a monthly basis a twelve (12) month rolling forecast to allow for visibility into expected future demands. APOLLO shall deliver to ESTABLISHMENT a forecast for anticipated monthly deliveries of Product to APOLLO over the subsequent four (4) calendar quarters (the "Forecast"). The Forecast is to be used by the Parties for planning purposes and is not a commitment by APOLLO to purchase the quantities of Products specified in such Forecast, except as described below.
+
+The quantities of Product forecasted for the initial three (3) months of each updated rolling Forecast shall represent a binding obligation of Apollo to purchase from ESTABLISHMENT, and of ESTABLISHMENT to manufacture and supply to APOLLO, such quantities of Product.
+
+-5-
+
+
+
+
+
+ESTABLISHMENT shall, at all times during the Term, maintain an inventory of raw materials and components sufficient to manufacture the binding obligations.
+
+5.2Orders. APOLLO shall routinely provide ESTABLISHMENT Purchase Orders for Product demands. All Product ordered by APOLLO shall be in the form of a firm written Purchase Order. Each Purchase Order shall contain at a minimum, the following information: description of the Product and quantity ordered, price, freight carrier information, payment terms, delivery date, and Purchase Order number for billing purposes. The Parties shall cooperate to establish appropriate lead times for orders; requested delivery dates shall provide sufficient lead times for the products ordered.
+
+5.3Delivery. Unless expressly provided otherwise in the applicable Purchase Order, shipping to APOLLO for the Product shall be Ex Works - ESTABLISHMENT (Incoterms 2010). The Product will be packaged and shipped per the Specifications and using a shipper and insurance coverage approved by APOLLO. In the event that any delivery of the Product is anticipated to be late, ESTABLISHMENT will promptly notify APOLLO of the circumstances for the delay and, upon request, ESTABLISHMENT will take reasonable steps to minimize the delay. At the request of APOLLO, ESTABLISHMENT will provide a written corrective action for the result of delays caused by events under the Span of Control of ESTABLISHMENT.
+
+5.4Acceptance, Rejection, and Claims. APOLLO may inspect any or all shipments of Product to insure all specifications are met including proper labeling, packaging and count within thirty (30) business days of APOLLO's receipt of each shipment; however, any such inspection shall not relieve ESTABLISHMENT of any obligations or warranties under this Agreement. APOLLO has the right to reject, via written notification to ESTABLISHMENT within this thirty (30) day period, any or all of a shipment of Product that fails to satisfy any warranty in this Agreement and may reject all of a given Lot of Product if a statistical sample does not meet the Specifications. Upon confirmation of defective condition by ESTABLISHMENT and issuance of a return material authorization ("RMA") number, APOLLO shall be entitled to the immediate return and replacement, free of charge, of any Product supplied by ESTABLISHMENT in breach of any warranty under this Agreement.
+
+5.5Spoilage Due to Change or Obsolescence. APOLLO shall be responsible for any printed packaging components, purchased raw materials, work in progress or finished Product which becomes obsolete as a result of a specification or drawing change so long as the purchased raw materials did not exceed three months of APOLLO's forecast requirements and, upon Apollo's request, such raw materials, work in progress and finished Product are transferred to APOLLO
+
+6. WARRANTIES
+
+6.1Product Warranty. ESTABLISHMENT warrants that all Product supplied under this Agreement shall, when it leaves ESTABLISHMENT's possession and control, conform with the Specifications and shall be free from defects in materials and workmanship.
+
+-6-
+
+
+
+
+
+ESTABLISHMENT further warrants that the Product shall be manufactured in accordance with applicable ISO 13485:2012 standards and with all applicable laws and regulations.
+
+6.2Debarment. ESTABLISHMENT represents, warrants and covenants that no person or entity that will be involved in the performance of ESTABLISHMENT's obligations under this Agreement is under investigation by the FDA or other Regulatory Authority for debarment or is presently debarred by the FDA or other Regulatory Authority. In addition, ESTABLISHMENT represents and warrants that it has not engaged in any conduct or activity that could lead to any such debarment actions. If during the Term, ESTABLISHMENT or any person or entity that will be involved in the performance of ESTABLISHMENT's obligations under this Agreement (i) comes under investigation by the FDA for a debarment action, (ii) is debarred, or (iii) engages in any conduct or activity that could lead to debarment, ESTABLISHMENT shall notify APOLLO immediately after gaining knowledge of the situation.
+
+6.3 Intellectual Property. ESTABLISHMENT represents, warrants and covenants to APOLLO that ESTABLISHMENT will not, in the course of performing obligations hereunder, infringe or misappropriate any intellectual property of any other person. APOLLO represents, warrants and covenants to ESTABLISHMENT that by complying with its obligations under this agreement APOLLO will not knowingly direct ESTABLISHMENT to incur any violation, infraction or misappropriation of any intellectual property of any other party.
+
+6.4Training. ESTABLISHMENT represents, warrants and covenants to APOLLO that all of its employees and personnel that will be performing any work in connection with this Agreement will have the appropriate training and skill necessary to perform their job functions.
+
+6.5No Conflicts. ESTABLISHMENT represents, warrants and covenants that it shall not enter into any agreement or arrangement with any other entity that would prevent or in any way negatively interfere with ESTABLISHMENT's ability to perform it obligations hereunder.
+
+7. REGULATORY AND QUALITY
+
+7.1Compliance. ESTABLISHMENT agrees that its work under this Agreement will be conducted in compliance with all applicable laws, rules and regulations, and with the standard of care customary in the industry. If requested by APOLLO, ESTABLISHMENT shall provide APOLLO with a certificate evidencing its accreditation by the appropriate accrediting body. Such accreditation shall remain in force during the term of this Agreement. ESTABLISHMENT agrees that all Product shipments to APOLLO shall be in accordance with APOLLO's instructions governing the shipment, labeling, and packaging of the Product.
+
+7.2Quality Control. Establishment shall maintain and follow a quality control and testing program consistent with the Product Specifications, ISO 13485:2012, Applicable Laws and quality system requirements communicated in writing by APOLLO from time to time
+
+-7-
+
+
+
+
+
+(the "Quality Control Procedures"). All Product supplied to APOLLO hereunder shall be manufactured in compliance with ISO 13485:2012 and all other applicable requirements of Regulatory Authorities, and in compliance with all other Applicable Laws (collectively, "Regulatory Standards"). At all times the Products shall be manufactured in an ISO Class 7 Clean Room, unless otherwise set forth in an amendment to this Agreement or the Exhibits hereto signed by both Parties.
+
+7.3Records. Establishment shall keep complete, accurate and authentic accounts, notes, data and records pertaining to the manufacture, processing, testing, storage, and distribution of the Product, including without limitation master production and control records, in material compliance with applicable Regulatory Standards. Establishment shall use commercially reasonable efforts to maintain and store such records in a manner to prevent loss, theft or deterioration. Establishment shall retain such records for five (5) years following the date of manufacture, or such longer period of time if consistent with Regulatory Standards, and shall make available to Apollo copies of such records; and upon the expiration of such period, Establishment shall contact Apollo and give Apollo the option to have such quality control documentation transferred to Apollo or destroyed. Unless this Agreement is terminated by Apollo due to a Triggering Event, in which case APOLLO shall bear the following costs: (i) ESTABLISHMENT may charge APOLLO for ESTABLISHMENT actual, documented, reasonable labor expenses incurred by ESTABLISHMENT for transfer or destruction of such documents and (ii) in the event of transfer of documents all freight costs shall be borne by APOLLO.
+
+7.4Product Complaints/Reports. The parties expect that APOLLO shall receive any complaint, claim or adverse reaction report regarding the Product. However (and except as otherwise noted below) in the event that ESTABLISHMENT receives any complaint, claim or adverse reaction report regarding any Product, including, but not limited to, notices from a competent Regulatory Authority regarding any regulatory non-compliance of a Product, upon notice, ESTABLISHMENT shall within a reasonable time frame provide APOLLO with all information related to such complaint, report, or notice and such additional information regarding the Product as may be reasonably requested. ESTABLISHMENT shall provide as much information as it has, to allow APOLLO comply with the competent Regulatory Authority requirements for complaint handling. If Product contains a defect which could or did cause death or serious bodily injury, ESTABLISHMENT shall immediately provide APOLLO with a complete description of all relevant details known to ESTABLISHMENT concerning any such incident, including but not limited to, a description of any defect and such other information which may be necessary to report to the competent Regulatory Authority or any Ministry of Health. APOLLO is responsible for filing any/all MDR Reports as required by the competent Regulatory Authority.
+
+7.5Recalls. APOLLO shall have the right to reasonably declare any recall of, or field corrective action to, any Product supplied to APOLLO under this Agreement. ESTABLISHMENT agrees to cooperate with APOLLO in connection with any such recall inasmuch as related to its concern in the Product.
+
+-8-
+
+
+
+
+
+7.6Government Inquiries. Without limiting the generality of Section 7.2, ESTABLISHMENT shall use its best efforts to:
+
+(a) Respond fully and accurately to all inquiries directed to it by the competent Regulatory Authority or any government agency or regulatory body with respect to the manufacture and testing of the Product.
+
+(b) Assist APOLLO in responding to inquiries directed to APOLLO by any competent Regulatory Authority or any government agency or regulatory body with respect to the manufacture and testing of the Product.
+
+7.7 Inspection of Manufacturing Facilities.
+
+(a) ESTABLISHMENT shall permit APOLLO and its agents, during business hours and upon notice to ESTABLISHMENT, to inspect the Facilities where the Product is manufactured, handled, stored or tested, as well as all processes relating to the manufacture, handling, storage, or testing of the Product, as well as all test records regarding the Product.
+
+7.8ESTABLISHMENT warrants and agrees that it will correct within a reasonable amount of time from the date of notification, all deficiencies and/or non-conformances found during an APOLLO or any competent Regulatory Authority (regulatory body or agency) audit; and that it will take reasonable steps to correct such deficiencies and/or non-conformances or issue an approved plan, including a timetable, to correct all deficiencies and/or non-conformances within a reasonable time period.
+
+7.9Control Testing. ESTABLISHMENT shall perform quality control testing in accordance with the Specifications for release of each Lot of Product to APOLLO. Quality control testing shall include testing associated with the production of the Product, including, but not limited to, incoming component and raw material testing, in process testing, and final release testing as agreed upon from time to time between APOLLO and ESTABLISHMENT.
+
+7.10 Specifications and Change Control.
+
+(a) The Specifications may not be changed without prior written approval by APOLLO.
+
+(b) ESTABLISHMENT shall not make any changes to the manufacturing process, Facilities, or equipment used in the manufacture that affects the form, fit or function of the Product without APOLLO's prior written approval.
+
+(c) APOLLO shall use commercially reasonable efforts to provide ESTABLISHMENT with sufficient written notice of any instructions or requirements of a government regulatory agency that may require a change of the Specifications. ESTABLISHMENT shall immediately notify APOLLO if any such changes in the Specifications
+
+-9-
+
+
+
+
+
+shall render ESTABLISHMENT unable to supply the Product in accordance with the terms and conditions of this Agreement or if they would cause a delay in supply of the Product.
+
+7.11Technical Assistance. ESTABLISHMENT shall provide APOLLO with certain technical support regarding the Product as reasonably requested by APOLLO, including, but not limited to, analytical test methods, manufacturing process development, and validation support. If there are charges associated with these services, a separate quote will be provided to APOLLO.
+
+7.12 Quality Agreement. ESTABLISHMENT and APOLLO shall execute a written Quality Agreement between the Parties (the "Regulatory Agreement"). Upon execution, the Quality Agreement shall be attached hereto as Exhibit B and shall be incorporated herein. The Quality Agreement may be updated from time to time upon the mutual written agreement of the Parties. ESTABLISHMENTs agrees to comply with any reasonable requirements of APOLLO's quality system.
+
+8. INDEMNIFICATION, LIMITATION OF LIABILITY AND INSURANCE
+
+8.1 Indemnification by APOLLO. APOLLO agrees to indemnify, defend and hold harmless ESTABLISHMENT, its officers, agents, and employees from any and all liability, loss (including reasonable attorneys' fees) or damage they may suffer as the result of claims, demands, costs or judgments against them arising out of the negligence, recklessness or willful misconduct on the part of APOLLO, its officers, agents, employees, contractors or consultants in connection with this Agreement.
+
+8.2 Indemnification by ESTABLISHMENT. ESTABLISHMENT agrees to indemnify, defend and hold harmless APOLLO, its officers, agents, and employees from any and all liability, loss (including reasonable attorneys' fees), or damage they may suffer as the result of claims, demands, costs or judgments against them arising out of:
+
+(a) a failure by ESTABLISHMENT, its officers, agents, employees, contractors or consultants to adhere to the terms of a Purchase Order or written instructions received from APOLLO in accordance with this agreement;
+
+(b) negligence, recklessness or willful misconduct on the part of ESTABLISHMENT, its officers, agents, employees, contractors or consultants; or
+
+(c) a breach of any applicable local law or regulation or of this Agreement by ESTABLISHMENT, its officers, agents, employees, contractors or consultants in relation to the execution of this agreement.
+
+8.3General Conditions of Indemnification. Each Party's agreement to indemnify, defend and hold the other harmless is conditioned on the indemnified Party (i) providing written notice to the indemnifying Party of any claim, demand or action arising out of the indemnified activities within thirty (30) days after the indemnified Party has knowledge of
+
+-10-
+
+
+
+
+
+such claim, demand or action; (ii) permitting the indemnifying Party to assume full responsibility to investigate, prepare for and defend against any such claim or demand; (iii) assisting the indemnifying Party, at the indemnifying Party's reasonable expense, in the investigation of, preparation for and defense of any such claim or demand; and (iv) not compromising or settling such claim or demand without the indemnifying Party's written consent; provided, however, that the failure of the indemnified Party to undertake any of the foregoing actions shall not relieve the indemnifying Party of any obligation it may have under this Article 8, except to the extent that the indemnifying Party's ability to fulfill such obligation has been materially prejudiced thereby.
+
+8.4Limitation of Liability. EXCEPT FOR BREACHES OR VIOLATIONS OF ARTICLE 9, OR INDEMNITY LIABILITIES ARISING UNDER THIS ARTICLE 8, OR CASES OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES INCLUDING LOSS OF USE, REVENUES OR PROFITS, INTERRUPTION OF BUSINESS OR CLAIMS AGAINST EITHER PARTY OR ITS CUSTOMERS BY ANY THIRD PARTY, WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF THE PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
+
+8.5 Insurance. ESTABLISHMENT, at its sole cost and expense, will maintain appropriate insurance including, but not limited to, Commercial General Liability Insurance with premises, operations coverage including Person Injury/Property Damage coverage, with limits of not less than $1,000,000 per occurrence. As of January 1, 2015, such insurance shall also have annual aggregate limits not less than $2,000,000. Evidence of insurance indicating such coverage will be delivered to APOLLO upon request. The evidence will (a) indicate that the policy will not change or terminate without at least fifteen (15) days prior written notice to APOLLO, (b) APOLLO shall be listed as an additional insured on the commercial general liability policy.
+
+9. CONFIDENTIALITY
+
+9.1Confidential Information. For purposes of this Agreement, "Confidential Information" shall mean all information relating to the subject matter of this Agreement (i) identified in written or oral format by the disclosing Party as confidential, trade secret or proprietary information and, if disclosed orally, summarized in written format within thirty (30) days of disclosure, or (ii) the receiving Party knows or has reason to know is confidential, trade secret or proprietary information of the disclosing Party. Notwithstanding the foregoing, "Confidential Information" shall not include any information which the receiving Party can show: (i) is now or subsequently becomes legally and publicly available without breach of this Agreement by the receiving Party, (ii) was rightfully in the possession of the receiving Party without any obligation of confidentiality prior to receiving it from the disclosing Party, (iii) was rightfully obtained by the receiving Party from a source other than the disclosing Party without
+
+-11-
+
+
+
+
+
+any obligation of confidentiality, or (iv) was developed by or for the receiving Party independently and without reference to such information as shown by documentary evidence.
+
+9.2Nondisclosure. Each Party agrees not to use the Confidential Information of the other Party for any purpose, including trading in the financial instruments of the other Party, except in its performance under this Agreement. In addition, the receiving Party shall treat and protect such Confidential Information in the same manner as it treats its own information of like character, but with not less than reasonable care. The receiving Party agrees to take appropriate measures by instruction and/or written agreement prior to disclosure of Confidential Information to its employees and contractors to prevent unauthorized use or disclosure. Confidential Information may be disclosed to the extent necessary to comply with an order of an administrative agency or court of competent jurisdiction provided, however, that the Party so required to disclose Confidential Information shall provide prior written notice thereof to the other Party in sufficient time to enable that Party to seek a protective order or otherwise prevent such disclosure. The receiving Party's confidentiality obligations under this Article 9 shall survive the termination of this Agreement, and shall remain binding on the Parties hereto until the earlier of a) the Confidential Information falls within one of the exceptions stated in Section 9.1 and b) five (5) years from the expiration or termination of the Agreement. Previously executed non-disclosure agreements between the Parties will remain in effect in conjunction with The Agreement until the termination dates specified in those agreements and any Confidential Information shall also be considered to be Confidential Information hereunder. Disclosure of Confidential Information under this Agreement will create no license, right, interest, or ownership in any such information in a receiving Party.
+
+10. GENERAL PROVISIONS
+
+10.1 Relationship Between the Parties. In fulfilling its obligations pursuant to this Agreement, each Party shall be acting as an independent contractor. Neither Party is granted any right or authority to assume or to create any obligation or responsibility, express or implied, on behalf of or in the name of the other Party.
+
+10.2 Nonexclusivity. Nothing in this Agreement shall limit or restrict Apollo from establishing a second source for the manufacture of the Products.
+
+10.3 No Third Party Beneficiaries. This Agreement is neither expressly nor impliedly made for the benefit of any party other than those executing it.
+
+10.4 Severability. If, for any reason, any part of this Agreement or any Purchase Order is adjudicated invalid, unenforceable or illegal by a court of competent jurisdiction, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions of this Agreement or Purchase Order (as the case may be) will continue in full force and effect.
+
+10.5 Notices. Any notice to be given under this Agreement must be in writing and delivered either in person, by any method of mail (postage prepaid) requiring return receipt,
+
+-12-
+
+
+
+
+
+or by overnight courier, to the Party to be notified at its address(es) given below, or at any address such Party has previously designated by prior written notice to the other. Notice shall be presumptively deemed to be sufficiently given for all purposes upon the earlier of: (a) the date of actual receipt; (b) if mailed, three (3) calendar days after the date of postmark; or (c) if delivered by overnight courier, the next business day the overnight courier regularly makes deliveries.
+
+If to ESTABLISHMENT: Establishment Labs S.A. Coyol Free Zone, B15, Alajuela 20113, Costa Rica Attention: Luis Gutierrez. General Counsel
+
+If to APOLLO: Apollo Endosurgery, Inc. 1120 S. Capital of Texas Hwy, Suite 300 Austin, TX 78746 Attn: Brian Szymczak, Legal Dept.
+
+10.6 Force Majeure. Each Party shall be excused from liability for the failure or delay in performance of any obligation under this Agreement by reason of any event beyond such Party's reasonable control, including, but not limited to, Acts of God, other natural forces or war. Such excuse from liability shall be effective only to the extent and duration of the event(s) causing the failure or delay in performance and provided that the Party seeking relief has not caused such event(s) to occur. Notice of a Party's failure or delay in performance due to force majeure must be given to the other Party within three (3) calendar days after its occurrence. All delivery dates under this Agreement that have been affected by force majeure shall be tolled for the duration of such force majeure.
+
+10.7 Legal Fees. The prevailing Party in any litigation between the Parties relating to this Agreement may be awarded some or all of its reasonable attorneys' fees and court costs if the Court (in its reasonable discretion) finds that a non- prevailing party has not acted in good faith in the pursuit or defense of a claim hereunder, in addition to any other relief that it may be awarded.
+
+10.8 Governing Law and Venue. Notwithstanding its place of execution or performance, this Agreement shall be governed by and construed in accordance with the laws of the State of Texas, irrespective of its laws regarding choice or conflict of laws. Any dispute arising under or relating to this Agreement shall be submitted for resolution to a state or federal court of competent jurisdiction in Austin, Texas, and the Parties hereby agree to submit to the jurisdiction and venue of such court.
+
+10.9 Assignment. This Agreement is binding upon and inures to the benefit of the Parties to it, and to their successors and assigns. Neither Party shall have the right to assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the other Party; provided, however, APOLLO may assign the Agreement to and may, without the
+
+-13-
+
+
+
+
+
+prior consent of ESTABLISHMENT, assign all of its rights under this Agreement to (i) a parent or subsidiary of Apollo, (ii) a purchaser of all or substantially all the Apollo assets related to this Agreement, or (iii) a third party acquiring control of Apollo through a merger, acquisition, sale of assets or other corporate reorganization.
+
+-14-
+
+
+
+
+
+IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the Effective Date.
+
+ESTABLISHMENT LABS, SA Apollo Endosurgery, Inc. By: /s/ Juan Jose Chacon By: /s/ Todd Newton Name: Juan Jose Chacon Name: Todd Newton Title: CEO Title: CEO
+
+-15-
+
+
+
+
+
+1. a. i. ii.
+
+2. a. b. c.
+
+3.
+
+a. b. c. d.
+
+• •
+
+4. a. b. c.
+
+5. a. b. c.
+
+6. a. b. c.
+
+EXHIBIT A
+
+Product & Price Listing
+
+Apollo BIB Sheath and Balloon Assembly Transition to E-LABS Rev.4
+
+Transition Plan Milestones & Description Approximate Timeline Fee Notes
+
+Project Launch Apollo to define component requirements (draft drawings) Onsite review of Allergan process in Costa Rica (1 trip). Agreement on specification/requirements Production to be performed in an ISO Class 7 Clean Room.
+
+[***] [***] Agreement to be signed before project launch..
+
+Proof of Process Obtain raw materials Prototype 1st mandrels/fixtures Deliver samples (10 pcs each) to Apollo (or Allergan) to agreed draft specification
+
+[***] [***]
+
+Requirements: -Drawings from Allergan for molds and tooling. -STL files from Allergan. -Materials standard specifications from Allergan. -Contact information of suppliers. -No cost for raw materials is included. -Tooling and Materials to be provided from Allergan.
+
+Process Set Up & Scale Up (for initial annual volumes of up to 50,000 pcs/each) Define production mandrels/fixtures Measurement system process set up Manufacturing Documentation Process characterization & definition of process limits
+
+Tooling (for annual volumes of 50,000 pcs/each) BIB Balloon Mandrels BIB Sheath Mandrels
+
+[***] [***]
+
+Completion is achieved when ready for first wet run.
+
+E-Labs Process Validation Equipment qualification Measurement systems Apollo review of protocol
+
+[***] [***]
+
+No raw materials or equipment cost are considered.
+
+First Articles / Validation (Apollo) Quantities to be determined by Apollo Deliver first articles to Apollo Transition project complete
+
+[***] [***]
+
+Patched BIB ballon with Sheath, including raw material.
+
+Manufacture / Deliver BIB Components for Commercial Use Apollo receives approval from applicable government/regulatory agencies. Order quantities to be determined Anticipate first delivery by [***].
+
+[***] [***]
+
+Patched BIB ballon with Sheath, including raw material.
+
+-16-
+
+
+
+
+
+• • • •
+
+• • • •
+
+• ◦ ◦ • • • •
+
+• ◦ ◦ • • • •
+
+Tooling & Other Program Requirements Unit Price Notes
+
+Shell, BIB Sheath, DWG BSS Rev. 08 [***] Material: NuSil [***] Silicone Assumes NuSil MED 4-2014 [***], Xylene [***]/liter Bulk packaged in double poly bags and labeled Lead time: [***] weeks
+
+For annual volumes between [***] See below
+
+Shell, BIB Sheath, [***] and E-Labs Draws from Apollo Stock] Material: NuSil [***] Silicone Assumes NuSil MED [***]/kg, Xylene [***]/liter Bulk packaged in double poly bags and labeled Lead time: [***] weeks
+
+For annual volumes between [***] See below
+
+Budgetary pricing for higher volumes of Shell Bib Sheath, [***]
+
+Note: This row should accommodate the two scenarios: Purchasing NuSil Material & Apollo Purchases NuSil Material and E-Labs Draws from Apollo Stock
+
+Annual Volumes [***]
+
+Annual [***]
+
+See below
+
+See below
+
+Balloon Assembly, BIB (E/S), per [***] Includes Shell, BIB BB, [***] Material: NuSil [***] Assumes NuSil [***]kg, Xylene [***]/liter Includes Valve Ring, BIB produced [***] Includes Valve Cylinder Slit, [***] for [***] Bulk packaged in double poly bags and labeled Lead time: [***] weeks
+
+For annual volumes between [***] See below
+
+Balloon Assembly, BIB (E/S), per drawing 6870 Rev 10 [Apollo Purchases Nusil Material and E-Labs Draws from Apollo Stock] Includes Shell, BIB BB, [***] Material: NuSil [***] Silicone Assumes NuSil [***]/kg, Xylene [***]/liter Includes Valve Ring, BIB [***] Includes Valve Cylinder Slit, [***] for [***] each Bulk packaged in double poly bags and labeled Lead time: [***] weeks
+
+For annual volumes between [***] See below
+
+Budgetary pricing for higher volumes of BIB [***]
+
+Annual Volumes [***] pieces
+
+Annual [***]+ pieces
+
+See below
+
+See below
+
+PRICES
+
+TRANCHES BIB SYSTEM PRICING MATRIX [***] [***] [***] [***] BIB SYSTEM [***] [***] [***] [***] BIB SHELL [***] [***] [***] [***] BIB SHEATH [***] [***] [***] [***]
+
+Conditions: • Prices have been calculated considering the information available to Establishment Labs on this date, subject to the requirements noted on each item. Prices may vary with further information. • Minimum yearly purchases of [***] units on each contract year. Five-year contract term is considered.
+
+-17-
+
+
+
+
+
+• As discussed with client, the quote given is for the manufacture of both components; prices for individual components is for reference only. • No cost of equipment or molds is included in the pricing. Item 3, Tooling, does include the cost of specific tooling as requested, for reference. • Process set-up and validation is considered on as-is condition. No process modification is quoted at this stage. • Quality control and certificates included as detailed in Exhibit B • Product sold [***] • Item 3, Tooling includes ONLY: ◦ For BIB Balloon, each run consists of [***] ◦ For BIB Sheath each run consists of [***] ◦ Unit Prices of tools: ▪ BIB Balloon Mandrel [***] ▪ BIB Balloon Handle [***] ▪ BIB Sheath Mandrel [***] • Note: The Tooling price is incomplete, prices for the following were not requested and are not included: cutters, inserts, racks, carts and machines (sheath dipping, mixing, cutting, vulcanizing). • Invoicing during the first six months after deliver of First Article should be a minimum of [***]. Any difference will be paid by Apollo. • Payment Terms: ◦ Fee for project launch payable upon signing. ◦ Transition Plan payments: on milestone completion. ◦ Net 30 on product sales. • Projected timeline for First Articles / Validation is [***]. For every month Establishment comes in earlier than said date, [***] incentive payment will be paid to Establishment. • For clarity, for the period from the delivery date of the first Purchase Order (as described in Item 6(c) above) until the end of the Calendar Year in which such delivery date occurs, Company shall be required to order only [***] to be given the pricing on such Purchase Orders for [***] annual units for such Calendar Year. Thereafter, in subsequent Calendar Years, the annual volume minimums to be given volume pricing shall be as set forth above and shall be per Calendar Year. [NOTE: This is to bring the contract pricing into a calendar year basis after the first purchases.] • In the event of termination under section 2.2(b) no additional reparation charges have been agreed upon by the parties; any future agreed upon reparation charge or amount shall be binding only if adopted as an amendment to this Agreement.
+
+-18-
+
+
+
+
+
+Exhibit B Regulatory Agreement
+
+Establishment Labs Apollo BIB Balloon and Sheath Testing & Inspection Proposal
+
+1. Manufacturing facility capabilities: • ISO Class 7 (ISO 14644-1:1999) - Certified clean room. • ISO 13485:2003 and ISO 9001:2008 Certified facility. • RDC#16:2013 Brazilian GMPs Approved facility. • SAP inventory levels remote consultation interface. Optional. 2. Certificate of raw material conformance as per specification for all supplier lots of silicone dispersions, valve ring, slit valve and silicone adhesive: • Incoming inspection testing, as applicable: ◦ Appearance, viscosity, Shore A durometer value, tear strength, refractive index, supplier certificate review, tack free time, tensile strength, and elongation. ◦ Verification of Slit Valve functionality at incoming receiving. • Pre-process testing and statistical analysis report to comply with mechanical properties of the shell: ◦ Shell thickness lot analysis. ◦ Shell elongation and break force. ◦ Tensile set. ◦ Lot viscosity and devol time process parameters definition. 3. Certificate of product conformance per lot, including: • Reference to Apollo/EL specifications drawing or Material Standard Specification. • EL Product Lot Number. • QTY description per lot. • Product Part Number and Description. • Raw Materials description with related documents including: ◦ Part number and supplier lot number. ◦ Supplier product certificates. • In process product testing controls, including: ◦ 100% shell and Sheath thickness report. ◦ 100% shell and Sheath visual inspection. ◦ 100% assembly visual inspection. ◦ Sampling testing for shell elongation and break force. ◦ Sampling testing for patch-joint. ◦ Sampling testing tensile strength. ◦ 100% leak test inspection of the balloon assembly. • DHR Review and QA approvals. • Other as required. 4. Process engineering: • Manufacturing procedures engineering change orders managing and execution. • Process parameters improvement and DMR's updating, if applicable. • Process data analysis.
+
+
+
+
+
+• Process Control Plans that identify Procedures, tooling, critical process controls, inspection requirements, inspection frequency, and inspection equipment. 5. Digital back-up at Establishment Labs in accordance with Quality Standards of: • Raw material incoming inspection reports. • Pre-process testing reports. • DHRs for every lot number. • Lot processing parameters. • Clean room monitoring. • Equipment maintenance and calibration records. • Tensile tester testing raw data. 6. Validations: • All processes that cannot be verified need to be validated. 7. Quality System: • Must be updated to allow business as a contract manufacturer. • For Apollo product, updates should include but not limited to: customer related processes, customer audits, feedback, monitoring and measurement of product, management review, and analysis of non-conforming product.
+
+
+
+
+
+Exhibit C
+
+Fixtures and Tooling
+
+-1-

full_contract_txt/ArcGroupInc_20171211_8-K_EX-10.1_10976103_EX-10.1_Sponsorship Agreement.txt

@@ -0,0 +1,43 @@
+Exhibit 10.1   JACKSONVILLE JAGUARS SPONSORSHIP AGREEMENT   This Sponsorship Agreement (this "Agreement") is entered into as of November 27, 2017 (the "Execution Date") by and between Jacksonville Jaguars, LLC, a Delaware limited liability company ("Club"), and The ARC Group, Inc., a Florida corporation (owner and operator of Dick's Wings and Grill) ("Sponsor"). This Agreement consists of this Sponsorship Agreement and Exhibits A and B hereto, each of which is incorporated into and forms a part of this Agreement by this reference.   RECITALS   A. Club owns and operates the National Football League ("NFL") team known as the Jacksonville Jaguars (the "Team") and has the right to grant sponsorship rights and to exploit certain commercial, advertising and related opportunities with respect to the Team, including at the football- based stadium in Jacksonville, Florida currently named EverBank Field (the "Stadium").   B. Sponsor wishes to obtain certain sponsorship rights, benefits and opportunities with respect to the Team in connection with the advertising and promotion of the Sponsor Business (as defined below).   In consideration of the mutual covenants contained herein, the parties agree as follows:   1. Term of Agreement. This Agreement shall be binding on the parties hereto as of the Execution Date. The term of this Agreement (the "Term") shall commence as of April 1, 2018 (the "Effective Date") and shall expire upon the later of: (a) the conclusion of the 2022/23 NFL season and (b) the last day in February, 2023 (such expiration date, the "Scheduled Expiration Date"), unless sooner terminated pursuant to the terms of this Agreement.   2. Sponsor Rights and Benefits. Subject to the terms and conditions of this Agreement, as part of the consideration of the full and timely payment of the Sponsor Fees, Club hereby grants to Sponsor, and Sponsor hereby accepts, solely in the Territory, and during the Term: (i) the right to use the Benefits set forth on Exhibit A and the license and right to use the Team Marks solely in connection with the advertisement and promotion of Sponsor's Dick's Wings and Grill branded restaurants (the "Sponsor Business") in accordance with this Agreement; and (ii) the right to use the designation "Official Wings of the Jacksonville Jaguars" and such other designations as Club and Sponsor may agree to in a writing from time to time (collectively, the "Official Designations"), solely in connection with the Sponsor Business. No license or right is granted for the use of any other Club intellectual property for any other purpose, in any geographic area outside the Territory, for any medium of distribution that cannot be reasonably limited to the Territory, or during any period before or after the Term. The rights granted to Sponsor pursuant to this Section 2 may not be used to promote or advertise any products or services of Sponsor other than the Sponsor Business, or any other person or entity, whether directly or by affiliation, cooperation, co-sponsorship, or any joint programs or promotions.   3. Annual Fees; Playoff Payment.   (a) In consideration for the Benefits, during each Contract Year of the Term, Sponsor shall pay Club, in accordance with this Section 3(a) and Section 2(d) of the Terms and Conditions, the amount set forth next to the applicable Contract Year below (the "Annual Fee").   First Contract Year (2018/19):  $ 200,000  Second Contract Year (2019/20):  $ 204,000  Third Contract Year (2020/21):  $ 208,080  Fourth Contract Year (2021/22):  $ 212,240  Fifth Contract Year (2022/23):  $ 216,490    Sponsor shall pay Club the Annual Fee for each Contract Year of this Agreement in six (6) equal installments, each due on or prior to the 1st of each month between June and November of the applicable Contract Year.   (b) In addition to the Annual Fees identified in Section 3(a) above, Sponsor shall provide Club with food, beverage and serving products from Sponsor's Dicks' Wings restaurant with values equal to the following (each, an "Annual Trade Value"):   First Contract Year (2018/19):  $ 35,000  Second Contract Year (2019/20):  $ 35,700  Third Contract Year (2020/21):  $ 36,410  Fourth Contract Year (2021/22):  $ 37,140  Fifth Contract Year (2022/23):  $ 37,890    As part of the Annual Trade Value, Sponsor shall provide Club with a designated liaison who will coordinate the menu and quantities to be provided by Sponsor. Sponsor shall deliver the food (the cost of which is included in the Annual Trade Value) to the Stadium at the time and location specified by Club. If any portion of the Annual Trade Value is not used in any given Contract Year, such unused amount shall carry forward to the subsequent Contract Year. If any portion of the Annual Trade Value is not used at the end of the Term, Club shall be permitted to use such unused amount within twelve (12) months following expiration of this Agreement. The parties acknowledge that the Annual Trade Value is inclusive of any taxes, surcharges or related fees applicable to the orders placed by Club during the Term.
+
+
+
+Source: ARC GROUP, INC., 8-K, 12/11/2017
+
+
+
+
+
+
+
+  (c) If, during the Term, the Team plays in the Hall of Fame game, or any post-season playoff game, including any wild card, divisional playoff, conference championship, or Super Bowl (each, a "Playoff Game"), to the extent Club has the necessary rights to grant the Benefits identified on Exhibit A for such Playoff Game, Sponsor shall pay Club an additional amount per Playoff Game equal to a pro-rated portion of the Annual Fee applicable during the then-current Contract Year. The pro-rated portion shall be determined by Club using Club's internal line item accounting values as set forth in Club's standard rate card for such Benefits during each Playoff Game; provided that the cost of the Playoff Game tickets shall be based upon the generally applicable price for such tickets (the "Playoff Payments"). Sponsor shall pay the Playoff Payments in accordance with Section 2(d) of the Terms and Conditions not later than 30 days following Sponsor's receipt of an invoice requesting payment for such Playoff Games; provided that Club's failure to deliver such an invoice shall not, and not be construed to, relieve Sponsor of any obligation to pay any amount owed to Club.   4. Definitions. Capitalized terms used but not otherwise defined herein have the respective meanings given to them on Exhibit B (as it may be amended or otherwise modified from time to time, the "Terms and Conditions").   5. Standard Terms and Conditions. Except as expressly set forth in this Sponsorship Agreement or Exhibit A, all Benefits granted by Club to Sponsor hereunder shall be subject to, and Sponsor shall at times comply with, the terms and conditions set forth in the Terms and Conditions.   6. Notices. Any notice or other communication under this Agreement shall be in writing and shall be considered given when delivered personally or by electronic mail (confirmed by one of the other permissible methods of giving notice hereunder), one business day after being sent by a nationally recognized overnight courier, or three business days after being mailed by registered or certified mail, postage prepaid and return receipt requested, to the parties at the following addresses (or at such other address as a party may specify by notice to the other):   To Sponsor: The ARC Group, Inc.  To Club: Jacksonville Jaguars, LLC  6327-4 Argyle Forest Blvd.   1 EverBank Field Drive  Jacksonville, Florida 32244   Jacksonville, Florida 32202  Attn: Rick Akam   Attn: Scott Massey  Title: CEO   Senior Vice President, Corporate Partnerships  Email: [email protected]   [email protected]   With a copy to: _________________________  With a copy to: Jacksonville Jaguars, LLC  _________________________   1 EverBank Field Drive  _________________________   Jacksonville, Florida 32202  Attn: ____________________   Attn: Megha Parekh  Title: ____________________   Senior Vice President, Chief Legal Officer  Email: ____________________   [email protected]   Notwithstanding the foregoing, delivery of an invoice via solely electronic mail shall constitute sufficient delivery under this Agreement.   7. Integration; Amendment. This Agreement contains the complete understanding between the parties hereto and supersedes all prior and contemporaneous written or verbal agreements or understandings (including but not limited to all negotiations, term sheets, letters of intent, presentations, and prior drafts of this Agreement) relating to the subject matter hereof. This Agreement may not be amended or otherwise modified except in a writing specifically referring to this Agreement and signed by authorized representatives of Sponsor and Club.   8. Counterparts. This Agreement may be executed in any number of counterparts, each of which will be deemed an original, but all of which taken together shall constitute one single agreement. Delivery of an executed counterpart by electronic transmission shall have the same effect as delivery of an original ink counterpart.   IN WITNESS WHEREOF, each party has caused this Agreement to be executed in Jacksonville, Florida, by its duly authorized representative with the intent that it be binding as of the Execution Date.   CLUB:  SPONSOR: JACKSONVILLE JAGUARS, LLC  The ARC Group, Inc.     By: /s/ Scott Massey  By: /s/ Richard W. Akam  Scott Massey   Rick Akam  SVP, Corporate Partnerships   CEO
+
+   Page 2 of 4
+
+Source: ARC GROUP, INC., 8-K, 12/11/2017
+
+
+
+
+
+
+
+  EXHIBIT A   Sponsorship Benefits   For purposes of clarity, the Benefits set forth on this Exhibit A are subject to the terms and conditions of this Agreement, including the Club Approval Rights under Section 5 of the Terms and Conditions.   1. STADIUM SIGNAGE   a. Carousel Messaging: Sponsor shall receive three (3) minutes of real time (and not game clock time) of display of a Sponsor Mark on LED carousel Signage on one (1) of the main video boards above the north or south end zone during each quarter of each preseason and regular season Jaguars Home Game. During each three (3) minute segment, Sponsor may include up to thirty seconds (:30) of animated messaging. Sponsor shall be solely responsible for any costs related to the animated messaging.   a. Ribbon LED Signage: Sponsor shall receive display of a Sponsor Mark on the LED ribbon boards located on the fascia on the east and west sides of the Stadium for thirty seconds (:30) of real time (and not game clock time) during each quarter of each preseason and regular season Jaguars Home Game. The exact timing of each display shall be determined by Club.   b. Concourse Signage: Sponsor shall receive display of a Sponsor Mark or Advertisement on five (5) back-illuminated advertising panels at certain locations on the Stadium concourses to be displayed during each preseason and regular season Jaguars Home Game. The exact size and location of each panel shall be determined by Club.   2. RADIO   a. Radio Spots: Sponsor shall receive the following radio spots in Club radio programming broadcasted by Club's primary radio partner. The exact timing of each spot shall be determined by Club or Club's primary radio partner: i. Jaguars Thursday: A total of twenty-three (23) thirty second (:30) spots for broadcast of an advertisement of the Sponsor Business during certain initial broadcasts of Jaguars Thursday. ii.Pre-Game Show: One (1) thirty second (:30) spot for broadcast of an advertisement of the Sponsor Business during each initial broadcast of the Pre-Game Show (for a total of twenty (20) spots during each Contract Year). iii.In-Game: One (1) thirty second (:30) spot for broadcast of an advertisement of the Sponsor Business during the initial broadcast of each preseason and regular season Team Game radio broadcast (for a total of twenty (20) spots during each Contract Year).   3. DIGITAL   a. Banner Ad: During each Contract Year, Sponsor shall receive display of a Sponsor Mark on one (1) banner advertisement in respect of the Sponsor Business that rotates throughout www.jaguars.com (approximately 300x250 pixels) and that links to Sponsor's official website. The exact placement of the banner shall be determined by Club in its sole discretion.   b. Gameday Magazine: During each Contract Year, Sponsor shall receive space to display one (1) full page advertisement in respect of the Sponsor Business and display of a Sponsor Mark in each digital (or printed, as determined by Club) issue of the Gameday Magazine distributed to Club's season ticket members prior to each Jaguars Home Game. The exact size and placement of the advertisement and timing of each distribution of the Gameday Magazine shall be determined by Club in its sole discretion.   c. Social Media Feature: During each Contract Year, Sponsor shall be the presenting sponsor of a video feature that highlights a top rushing play by a Team player during each preseason and regular season Team Game (the "Feature"). The top rushing play shall be determined by Club in its sole discretion. Such presenting sponsorship shall consist of the following: i. A Sponsor Mark displayed in the Feature, which shall be published by Club to Club's official Facebook, Twitter, Instagram or Snapchat account. The post will tag Sponsor's official corresponding social media account. The content, timing and frequency of such social media posts and the social media platforms shall be determined by Club.   4. HOSPITALITY   a. Season Tickets: Sponsor shall receive tickets (in Section 150, Row X, Seats 5-8, or a substantially similar location) to each preseason and regular season Jaguars Home Game.
+
+   Page 3 of 4
+
+Source: ARC GROUP, INC., 8-K, 12/11/2017
+
+
+
+
+
+
+
+  5. CONCESSIONS   a. Branded Concession Stands: During each preseason and regular season Jaguars Home Game and Other Events as requested by Club or the Stadium concessionaire ("Concessionaire"), Sponsor shall have the right to display Sponsor branding on (i) one (1) fixed concession stand in the Stadium located in the Bud Light Party Zone; and (ii) the fixed concession stand identified as Concession Stand 118 on the Stadium concourse (collectively, the "Stands"). The exact size and location of the Stands shall be determined by Club. The exact design of the Stands shall be mutually agreed upon between Sponsor and Club. Sponsor may display Signage displaying a Sponsor Mark in and/or on the Stand. Sponsor shall be responsible for all costs associated with the branding and Advertising in respect of the Stand.   b. Vending: Subject to the Concessions Agreement (as defined herein), Sponsor shall have the right to have its food products sold or otherwise distributed from the Stands and/or certain general concessions areas at the Stadium determined by Club or the Concessionaire. For purposes of clarity, nothing in this Agreement grants Sponsor the right to operate the Stand or otherwise sell or distribute food products from or within the Stand. Sponsor shall enter into an agreement with the Concessionaire to memorialize any such rights regarding the sale or distribution of Sponsor's products at the Stadium during each Jaguars Home Game and Other Events (the "Concessions Agreement"). The exact products to be sold and distributed shall be subject to Club's final approval. For purposes of clarity, Club reserves the right to sell other products at the Stadium competitive to the Sponsor Business. Sponsor acknowledges that such rights do not automatically extend to Other Events at the Stadium. Sponsor acknowledges that Sponsor shall cooperate with the Concessionaire regarding logistics and management of the Sponsor's food products, and appropriate storage and dispensation of the food products. In the event of any recall with respect to Sponsor's products provided to the Concessionaire pursuant to this Agreement or the Concessions Agreement, Sponsor shall notify both Club and the Concessionaire immediately upon issuance of such recall, and Club may, at its sole discretion and without penalty, suspend the Benefits for a duration as reasonably determined by Club. Any costs or expenses incurred by Club or the Concessionaire with respect to any such recall shall be the sole responsibility of Sponsor. Sponsor shall be responsible for the management and control over the services provided by its staff members operating the Stands ("Sponsor Staff") and Sponsor shall be solely responsible for determining the terms of employment for Sponsor Staff. Sponsor shall train Sponsor Staff or require Sponsor Staff to undergo training provided by Concessionaire. The staffing levels at each Stand shall be subject to Club's approval.
+
+   Page 4 of 4
+
+
+
+Source: ARC GROUP, INC., 8-K, 12/11/2017

full_contract_txt/ArcaUsTreasuryFund_20200207_N-2_EX-99.K5_11971930_EX-99.K5_Development Agreement.txt

@@ -0,0 +1,43 @@
+Exhibit 99(k)(5) FORM OF BLOCKCHAIN ADMINISTRATION AND DEVELOPMENT AGREEMENT BETWEEN ARCA U.S. TREASURY FUND AND ARCA CAPITAL MANAGEMENT, LLC This Agreement ("Agreement") is made as of [___], 2020 by and between ARCA U.S. TREASURY FUND, a Delaware statutory trust (the "Fund"), and ARCA CAPITAL MANAGEMENT, LLC, a Delaware limited liability company (the "Blockchain Administrator"). WHEREAS, the Fund is a closed-end management investment fund that has registered as an investment company under the Investment Company Act of 1940, as amended (the "Investment Company Act") and that intends to operate as an interval fund pursuant to Rule 23c-3 under the Investment Company Act; WHEREAS, the Fund desires to retain the Blockchain Administrator to provide services related to the development of ERC-1404 compatible digital securities and administration of the smart contracts underlying the Fund's digital securities in the manner and on the terms set forth herein; WHEREAS, the Blockchain Administrator is willing to provide such services to the Fund on the terms and conditions set forth herein; WHEREAS, the Blockchain Administrator will also serve as the Fund's investment adviser (the "Adviser") pursuant to an Investment Advisory Agreement entered into by and between the Fund and the Adviser (as amended from time to time, the "Advisory Agreement"); and WHEREAS, the Fund bears all costs and expenses incurred in its operation, administration and transactions which are not specifically assumed by the Adviser pursuant to the Advisory Agreement or this Agreement. NOW, THEREFORE, in consideration of the premises and the covenants hereinafter contained and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the Fund and the Blockchain Administrator hereby agree as follows: 1. Duties of the Blockchain Administrator (a) The Fund hereby employs the Blockchain Administrator to act as the blockchain administrator of the Fund, and to furnish, or arrange for others to furnish, the services, personnel and facilities described below, subject to review by and the overall control of the Fund's Board of Trustees (the "Board"), for the period and on the terms and conditions set forth in this Agreement. (b) The Blockchain Administrator hereby accepts such employment and agrees during such period to render, or arrange for the rendering of, such services and to assume the obligations herein set forth subject to the reimbursement of costs and expenses provided for below. (c) The Blockchain Administrator shall perform (or oversee, or arrange for, the performance of) development and administrative services necessary for the issuance of the Fund's shares as ERC-1404 compatible digital securities ("Shares") and the on-going maintenance and administration of the smart contracts underlying such Shares. Without limiting the generality of the foregoing, the Blockchain Administrator shall provide the Fund with facilities, equipment, technology, coding and such other services as the Blockchain Administrator, subject to review by the Board, shall from time to time determine to be necessary or useful to perform its obligations under this Agreement.
+
+1
+
+Source: ARCA U.S. TREASURY FUND, N-2, 2/7/2020
+
+
+
+
+
+(d) The Blockchain Administrator shall also, on behalf of the Fund, conduct relations with custodians, depositories, transfer agents, dividend disbursing agents, other stockholder servicing agents, accountants, attorneys, underwriters, brokers and dealers, corporate fiduciaries, insurers, banks and such other persons as the Blockchain Administrator shall deem to be necessary or desirable in connection with the issuance and transfer of the Fund's ERC-1404 compatible digital security,. (e) The Blockchain Administrator shall make reports to the Board of its performance of obligations hereunder and furnish advice and recommendations with respect to such other aspects of the business and affairs of the Fund as it shall determine to be desirable; provided that nothing herein shall be construed to require the Blockchain Administrator to, and the Blockchain Administrator shall not, in its capacity as Blockchain Administrator pursuant to this Agreement, provide any advice or recommendation relating to the securities and other assets that the Fund should purchase, retain or sell or any other investment advisory services to the Fund. (f) The Blockchain Administrator shall for all purposes herein be deemed to be an independent contractor and shall, unless otherwise expressly provided or authorized herein, have no authority to act for or represent the Fund in any way or otherwise be deemed an agent of the Fund. (g) The Blockchain Administrator is hereby authorized to enter into agreements with other service providers pursuant to which the Blockchain Administrator may obtain the services of the service providers in fulfilling its responsibilities hereunder. The Blockchain Administrator shall ensure that any such service provider shall operate in conformity with the requirements of the Investment Company Act and other applicable federal and state law and shall maintain books and records of the Fund (if any) in a manner substantially similar to Section 2 of this Agreement. 2. Maintenance of Records The Blockchain Administrator agrees to maintain and keep all books, accounts and other records of the Fund that relate to activities performed by the Blockchain Administrator hereunder and will maintain and keep such books, accounts and records in accordance with the Investment Company Act. In compliance with the requirements of Rule 31a-3 under the Investment Company Act, the Blockchain Administrator agrees that all records which it maintains for the Fund shall at all times remain the property of the Fund, shall be readily accessible during normal business hours, and shall be promptly surrendered upon the termination of the Agreement or otherwise on written request. The Blockchain Administrator further agrees that all records which it maintains for the Fund pursuant to Rule 31a-1 under the Investment Company Act will be preserved for the periods prescribed by Rule 31a-2 under the Investment Company Act unless any such records are earlier surrendered as provided above. Records shall be surrendered in usable machine-readable form. The Blockchain Administrator shall have the right to retain copies of such records subject to observance of its confidentiality obligations under this Agreement. 3. Confidentiality The parties hereto agree that each shall treat confidentially the terms and conditions of this Agreement and all information provided by each party to the other regarding its business and operations. All confidential information provided by a party hereto, including nonpublic personal information (regulated pursuant to Regulation S-P), shall be used by any other party hereto solely for the purpose of rendering services pursuant to this Agreement and, except as may be required in carrying out this Agreement, shall not be disclosed to any third party, without the prior consent of such providing party. The foregoing shall not be applicable to any information that is publicly available when provided or thereafter becomes publicly available other than through a breach of this Agreement, or that is required to be disclosed by any regulatory authority, any authority or legal counsel of the parties hereto, by judicial or administrative process or otherwise by applicable law or regulation. 4. Compensation; Allocation of Costs and Expenses (a) In full consideration of the provision of the services of the Blockchain Administrator set forth herein, the Fund shall pay the Blockchain Administrator a fees calculated at the annual rate of 0.20% of the value of the Fund's average annual net assets. Such fee shall be accrued daily and paid monthly in arrears.
+
+2
+
+Source: ARCA U.S. TREASURY FUND, N-2, 2/7/2020
+
+
+
+
+
+(b) The Fund shall bear all fees, costs and expenses incurred in connection with its operation, administration and transactions that are not specifically assumed by the Blockchain Administrator (or the Adviser, if not the Blockchain Administrator, pursuant to the Advisory Agreement), including but not limited to: (i) compensation of the Fund's Trustees who are not affiliated with the Fund's Adviser or the Fund's principal underwriter/distributor or any of their respective affiliates; (ii) taxes and governmental fees; (iii) interest charges; (iv) fees and expenses of the Fund's independent accountants and legal counsel; (v) trade association membership dues; (vi) fees and expenses of any custodian (including maintenance of books and accounts and calculation of the net asset value of shares of the Fund), transfer agent, registrar and dividend disbursing agent of the Fund; (vii) expenses of issuing, redeeming, registering and qualifying for sale shares of beneficial interest in the Fund; (viii) expenses of preparing prospectuses and reports to shareholders, notices, proxy statements and reports to regulatory agencies; (ix) the cost of office supplies, including stationery; travel expenses of all officers, Trustees and employees; (x) insurance premiums; (xi) brokerage and other expenses of executing portfolio transactions; (xii) expenses of shareholders' meetings; (xiii) organizational expenses; and (xiv) extraordinary expenses. 5. Limitation of Liability of the Blockchain Administrator; Indemnification The Blockchain Administrator (and its officers, managers, partners, agents, employees, controlling persons, members and any other person or entity affiliated with the Blockchain Administrator) shall not be liable to the Fund for any action taken or omitted to be taken by the Blockchain Administrator in connection with the performance of any of its duties or obligations under this Agreement or otherwise as blockchain administrator of the Fund, and the Fund shall indemnify, defend and protect the Blockchain Administrator (and its officers, managers, partners, agents, employees, controlling persons, members and any other person or entity affiliated with the Blockchain Administrator) (collectively, the "Indemnified Parties") and hold them harmless from and against all damages, liabilities, costs and expenses (including reasonable attorneys' fees and amounts reasonably paid in settlement) incurred by the Indemnified Parties in or by reason of any pending, threatened or completed action, suit, investigation or other proceeding (including an action or suit by or in the right of the Fund or its security holders) arising out of or otherwise based upon the performance of any of the Blockchain Administrator's duties or obligations under this Agreement or otherwise as administrator of the Fund. Notwithstanding the preceding sentence of this Section 5 to the contrary, nothing contained herein shall protect or be deemed to protect the Indemnified Parties against or entitle or be deemed to entitle the Indemnified Parties to indemnification in respect of, any liability to the Fund or its security holders to which the Indemnified Parties would otherwise be subject by reason of criminal conduct, willful misfeasance, bad faith or gross negligence in the performance of the Blockchain Administrator's duties or by reason of the reckless disregard of the Blockchain Administrator's duties and obligations under this Agreement. 6. Activities of the Blockchain Administrator The services of the Blockchain Administrator to the Fund are not to be deemed to be exclusive, and the Blockchain Administrator and its affiliates are free to render services to others. It is understood that trustees, officers, employees and stockholders of the Fund are or may become interested in the Blockchain Administrator and its affiliates, as directors, officers, members, managers, employees, partners, stockholders or otherwise, and that the Blockchain Administrator and directors, officers, members, managers, employees, partners and stockholders of the Blockchain Administrator and its affiliates are or may become similarly interested in the Fund as stockholders or otherwise. 7. Duration and Termination of this Agreement (a) This Agreement shall become effective as of the first date above written. This Agreement may be terminated at any time, without the payment of any penalty, upon 60 days' written notice, by the vote of a majority of the outstanding voting securities of the Fund or by the vote of the Fund's Trustees or by the Blockchain Administrator. The provisions of Section 5 of this Agreement shall remain in full force and effect, and the Blockchain Administrator shall remain entitled to the benefits thereof, notwithstanding any termination of this Agreement. Further, notwithstanding the termination or expiration of this Agreement as aforesaid, the Blockchain Administrator shall be entitled to any amounts owed under Section 4 through the date of termination or expiration, and Section 5 shall continue in force and effect and apply to the Blockchain Administrator and its representatives as and to the extent applicable.
+
+3
+
+Source: ARCA U.S. TREASURY FUND, N-2, 2/7/2020
+
+
+
+
+
+(b) This Agreement shall continue in effect for two years from the date hereof, and thereafter shall continue automatically for successive annual periods, provided that such continuance is specifically approved at least annually by (A) the vote of the Board, or by the vote of a majority of the outstanding voting securities of the Fund and (B) the vote of a majority of the Fund's directors who are not parties to this Agreement or "interested persons" (as such term is defined in Section 2(a)(19) of the Investment Fund Act) of any such party, in accordance with the requirements of the Investment Fund Act. (c) This Agreement will automatically terminate in the event of its "assignment" (as such term is defined for purposes of Section 15(a) (4) of the Investment Fund Act). 8. Notices Any notice under this Agreement shall be given in writing, addressed and delivered or mailed, postage prepaid, to the other party at its principal office. 9. Amendments This Agreement may be amended pursuant to a written instrument by mutual consent of the parties. 10. Entire Agreement; Governing Law This Agreement contains the entire agreement of the parties and supersedes all prior agreements, understandings and arrangements with respect to the subject matter hereof. This Agreement shall be construed in accordance with the laws of the State of New York applicable to contracts formed and to be performed entirely within the State of New York, without regard to conflict of laws principles, and in accordance with the applicable provisions of the Investment Fund Act. In such case, to the extent the applicable laws of the State of New York, or any of the provisions herein, conflict with the provisions of the Investment Fund Act, the latter shall control. [Remainder of Page Intentionally Left Blank]
+
+4
+
+Source: ARCA U.S. TREASURY FUND, N-2, 2/7/2020
+
+
+
+
+
+IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the date first above written. ARCA U.S. TREASURY FUND By: Name: Philip Liu Title: President ARCA CAPITAL MANAGEMENT, LLC By: Name: J. Rayne Steinberg Title: Chief Executive Officer 5
+
+Source: ARCA U.S. TREASURY FUND, N-2, 2/7/2020

full_contract_txt/ArconicRolledProductsCorp_20191217_10-12B_EX-2.7_11923804_EX-2.7_Trademark License Agreement.txt

@@ -0,0 +1,55 @@
+Exhibit 2.7 FORM OF TRADEMARK LICENSE AGREEMENT THIS TRADEMARK LICENSE AGREEMENT (this "Agreement"), made and entered into as of the [ ] day of [ ], 2020 (the "Effective Date"), by and between ARCONIC INC., a corporation organized under the laws of Delaware ("Licensee") and ARCONIC ROLLED PRODUCTS CORP., a corporation organized under the laws of Delaware ("Licensor"). WHEREAS, Licensor and Licensee entered into a Separation and Distribution Agreement having an effective date of the [ ] day of [ ], 2020 ("Separation and Distribution Agreement"); unless specifically defined in this Agreement, any capitalized term in this Agreement shall have the meaning set forth in the Separation and Distribution Agreement. WHEREAS, Licensor formerly operated as a business unit of Licensee; WHEREAS, as part of and further to the Separation and Distribution Agreement: (a) Licensor and Licensee are now two separate publicly traded companies; and (b) Licensor was assigned all right, title, and interest to the trademark "ARMX" (the "Licensed Mark"); WHEREAS, Licensee wishes to license from Licensor the right to the Licensed Mark as hereinafter defined below; WHEREAS, Licensee wishes to obtain from Licensor, subject to the terms and conditions set forth in this Agreement, the right and license to use, have used, manufacture, have manufactured, sell, have sold, advertise, have advertised, import, have imported, export, have exported, offer for sale, and have offered for sale the Licensed Products (later defined) using the Licensed Mark (the "Licensed Purpose"); WHEREAS, Licensor is willing to grant such rights, upon the terms and subject to the conditions set forth in this Agreement. NOW, THEREFORE, in consideration of the mutual agreements, provisions and covenants contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties, intending to be legally bound, hereby agree as follows:
+
+1
+
+Source: ARCONIC ROLLED PRODUCTS CORP, 10-12B, 12/17/2019
+
+
+
+
+
+1. GRANT AND SCOPE OF LICENSE. 1.1 Grant of License. Licensor on behalf of itself and its Affliates hereby grants to Licensee the limited licenses to use and have used the Licensed Mark: (i) for the Licensed Products as set forth on Schedule 2; and (ii) as set forth on Schedule 1, concerning agreements entered into by Licensee prior to the Effective Date ("Existing Agreements"). For the avoidance of doubt, Licensor also grants to Licensee and its subsidiaries and affiliates a non-exclusive, worldwide royalty-free license for continued use of the Licensed Mark for the production and sale of inventory containing the Licensed Mark applied to such products during the Transition Period as set forth in section 8.2 of the Separation and Distribution Agreement and in Schedule 2 of this Agreement. Licensee will not, however, use the Licensed Mark except for the production and sale of inventory as provided in this Section 1.1 and in Section 8.2 of the Separation and Distribution Agreement and Schedule 2 of this Agreement. For avoidance of doubt, to the extent that any of the licenses granted by the terms of this Agreement include any right to sublicense, such right to sublicense shall extend to Licensee's subsidiaries and joint venturers. 1.2 Goodwill. Licensee expressly recognizes and acknowledges that its use of the Licensed Mark shall inure solely to the benefit of Licensor, and shall not confer on Licensee any ownership rights to the Licensed Mark. Licensee agrees and covenants that it shall not challenge, contest, or take any actions inconsistent with Licensor's exclusive rights of ownership of the Licensed Mark. 1.3 Trademark Notices. All print and electronic displays of the Licensed Mark by Licensee shall include at Licensor's option, a notice to the effect that the Licensed Mark are owned by Licensor and used by Licensee under license from Licensor. 1.4 Licensee Cooperation. Licensee agrees to reasonably cooperate with Licensor in achieving registration of the Licensed Mark worldwide, and in maintaining and protecting existing registrations therefor at Licensor's sole expense. Licensee shall execute any and all documents which Licensor may reasonably request in support of such registrations, and, at Licensor's request, Licensee shall provide use evidence, testimony, and documentation that may be required in any ex parte or inter partes administrative proceedings and prosecutions, maintenance and renewals involving registrations of the Licensed Mark, at Licensee's sole expense. 1.5 Quality Control, Licensor Approvals. Licensor, as owner of the Licensed Mark, shall have the right at all times to control and approve the nature and quality of the Licensed Products (and the Licensed Mark thereon), and to inspect Licensee's business operations upon reasonable prior notice for the purpose of ensuring that a high level of quality of the Licensed Products is being maintained by Licensee. At Licensor's reasonable request during each calendar year, Licensee shall submit samples to Licensor, at no cost to Licensor, and shall not materially depart therefrom without Licensor's prior express written consent. The Licensed Products, as well as all promotional, packaging and advertising material relative thereto, shall include all appropriate legal notices as required by Licensor. No more frequently than once per year, a third party auditor chosen by Licensor and approved by Licensee, such approval not to be unreasonably withheld, shall be entitled at any time on reasonable notice to the Licensee to enter, during regular business hours, any premises used by the Licensee or its manufacturers for the manufacture, packaging or storage of the Licensed Products, to inspect such premises, all plant, workforce and machinery used for manufacture, packaging or storage of Licensed Products and all other aspects of the manufacture, packaging and storage of Licensed Products ("Access Rights"). Prior to exercising such Access Rights, the third party auditor shall enter into a nondisclosure agreement with Licensee that, among other terms deemed acceptable by Licensee and such third party auditor, shall: (a) limit the content of any report made by the third party auditor to Licensor to a description of the manner in which, and the conditions under which, the Licensed Mark are used by Licensee or its manufacturers; and (b) prevent the disclosure of any of Licensee's trade secrets and/or Confidential Information. To the extent reasonably practicable, all Licensed Products shall include notices on labeling and packaging for the Licensed Products stating that the Licensed Mark is owned by Licensor and used by Licensee under license from Licensor. The Licensed Products shall be of a quality commensurate with previous production or the samples approved by Licensor. If the quality of a class of the Licensed Products falls below such standards, Licensee shall use commercially reasonable efforts to restore such quality. In the event that Licensee has not taken appropriate steps to restore such quality within one-hundred twenty (120) days after notification by Licensor, Licensor shall have the right to terminate this Agreement.
+
+2
+
+Source: ARCONIC ROLLED PRODUCTS CORP, 10-12B, 12/17/2019
+
+
+
+
+
+1.6 Compliance with Trademark Usage Guidelines. Licensee agrees to comply with Licensor's trademark usage guidelines and any other policies and requirements applicable to the Licensed Mark. 2. ENFORCEMENT OF INTELLECTUAL PROPERTY. If legally able and without breaching any confidentiality provisions of a contract with a third party, in the event that Licensee becomes aware that any third party is infringing the Licensed Mark, Licensee shall promptly notify Licensor and provide pertinent details. Licensor shall have the right in its sole discretion to bring a legal action for infringement against the third party, together with the right to enforce and collect any judgment thereon. If Licensor elects to exercise such right, Licensee shall, at Licensor's request, provide reasonable assistance to Licensor, at the sole expense of Licensor. 3. INDEMNIFICATION. Licensee shall defend, indemnify and hold harmless Licensor and its officers, directors, employees, agents, corporate subsidiaries, parents, and affiliates ("Licensor Indemnitees") from and against any and all demands, claims, actions or causes of action, assessments, deficiencies, damages, losses, liabilities and expenses (including, without limitation, reasonable expenses of investigation and attorneys' fees and expenses), incurred in conjunction with or arising out of or relating to any third-party claim concerning the Licensed Products and any acts or omissions of Licensee with respect to the Licensed Mark, including without limitation Licensee's performance of its obligations under this Agreement. The Licensor Indemnitees agree to cooperate with Licensee, at Licensee's expense, to provide copies of any documents or materials reasonably requested by Licensee in support of its defense of the Licensor Indemnitees. 4. TERM AND TERMINATION. 4.1 Term. The Term of this Agreement will commence on the Effective Date and shall continue for the time periods set forth in Schedules 1 and 2 unless sooner terminated in accordance with the terms of this Agreement. 4.2 Termination for Breach. Licensor and Licensee will be entitled to terminate this Agreement by written notice to the other party in the event the other party is in material breach of any of its obligations hereunder and shall fail to remedy any such default within one hundred twenty (120) days after notice thereof by the non-breaching party. 4.3 Termination Upon Bankruptcy. Either party may terminate this Agreement by written notice to the other in the event of: (a) the other party's making assignment for the benefit of its creditors or filing a voluntary petition under any bankruptcy or insolvency law, under the reorganization or arrangement provisions of the United States Bankruptcy Code, or under the provisions of any law of like import; or (b) the filing of an involuntary petition against the other party under any bankruptcy or insolvency law, under the reorganization or arrangement provisions of the United States Bankruptcy Code, or under any law of like import; or (c) the appointment of a trustee or receiver for the party or its property.
+
+3
+
+Source: ARCONIC ROLLED PRODUCTS CORP, 10-12B, 12/17/2019
+
+
+
+
+
+4.4 Survival of Obligations; Return of Confidential Information. Notwithstanding any expiration or termination of this Agreement, Sections 1.4, 3, 4.4, 5.1, 5.2, and 6.1 through 6.11 shall survive and continue to be enforceable as set forth herein. Upon any expiration or termination of this Agreement, Licensee shall promptly return to Licensor, or at Licensor's direction, destroy all Licensor confidential information and all copies thereof in Licensee's possession. 5. REPRESENTATIONS AND WARRANTIES. 5.1 Licensor represents and warrants to Licensee that Licensor's performance of its obligations under this Agreement is not in conflict with, and will not result in a breach of or constitute a default under, any other contract, instrument, rule of law or order of any court or governmental agency to which Licensor is a party or by which Licensor is bound. 5.2 Licensee represents and warrants to Licensor that Licensee's performance of its obligations under this Agreement are not in conflict with, and will not result in a breach of or constitute a default under, any other contract, instrument, rule of law or order of any court or governmental agency to which Licensee is a party or by which Licensee is bound. 5.3 No Warranty. But for the warranty set forth in section 5.1., supra, Licensor, by this Agreement, makes no warranties or guarantees, either express or implied, arising by law or otherwise with regard to the Licensed Mark and/or the Licensed Products. In particular, Licensor assumes no obligation and makes no representations or warranties hereunder, express or implied, in law or in fact, with respect to: (i) the utility, quality or characteristics of the Licensed Mark or any use, embodiment, or modification thereof; (ii) the use of any Licensed Product, embodiments, or modifications thereof, or (iii) whether such Licensed Products, or any use, embodiments, or modifications thereof, would be in compliance with any federal, state or local laws, regulations, standards or criteria with respect to any claim which may arise in connection with any sale or use of Licensed Products. LICENSOR SPECIFICALLY DISCLAIMS, AND WILL HAVE NO OBLIGATION OR LIABILITY FROM THIS AGREEMENT WITH REGARD TO THE LICENSED MARK FOR ANY: (1) IMPLIED WARRANTY OF MERCHANTABILITY; (2) IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (3) IMPLIED WARRANTY OF NONINFRINGEMENT; AND (4) IMPLIED WARRANTY OF ANY OTHER TYPE. 6. MISCELLANEOUS. 6.1 Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Delaware without regard to its conflicts of law principles. 6.2 Jurisdiction and Venue. Each of the parties: (a) submits to the exclusive jurisdiction of any state or federal court sitting in Wilmington, Delaware for any action or proceeding arising out of, or relating to, this Agreement; (b) agrees that all claims in respect of the action or proceeding may be heard and determined in any such court; and (c) agrees not to bring any action or proceeding arising out of, or relating to, this Agreement in any other court. Each of the parties hereto waives any defense of inconvenient forum to the maintenance of any action or proceeding so brought and waives any bond, surety or other security that might be required of any other party with respect thereto. Each party agrees that a final judgment in any action or proceeding so brought will be conclusive and may be enforced by suit on the judgment or in any other manner provided by law or at equity.
+
+4
+
+Source: ARCONIC ROLLED PRODUCTS CORP, 10-12B, 12/17/2019
+
+
+
+
+
+6.3 Waiver. The waiver by one party of a breach or a default of any provision of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or any other provision, nor shall any delay or omission on the part of a party to exercise or avail itself of any right, power or privilege that it has or may have hereunder operate as a waiver of any right, power or privilege by such party. 6.4 Waiver of Jury Trial. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW EACH PARTY HEREBY IRREVOCABLY WAIVES ALL RIGHT OF TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM, OR COUNTERCLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY MATTER ARISING HEREUNDER. 6.5 Notices. Any notice or other communication under this Agreement shall be effective when: (a) delivered in person; (b) if mailed, when deposited in the mail by registered or certified mail, return receipt requested; or (c) if delivered by overnight mail by a recognized overnight carrier (e.g., FedEx, UPS, DHL). All such notices and other communications shall be addressed to the other party as follows: If to Licensor: If to Licensee: Arconic Inc. Arconic Rolled Products Corp. 201 Isabella Street 201 Isabella Street Pittsburgh, PA 15212 Pittsburgh, PA 15212 Attn.: General Counsel Attn: General Counsel 6.6 No Agency. Nothing herein shall be deemed to constitute Licensor, on the one hand, or Licensee, on the other hand, as the agent or representative of the other, or as joint venturers or partners for any purpose. Neither Licensor, on the one hand, nor Licensee, on the other hand, shall be responsible for the acts or omissions of the other. No party will have authority to speak for, represent or obligate the other party in any way without prior written authority from such other party. 6.7 Entire Agreement. This Agreement and the Separation and Distribution Agreement together contain the full understanding of the parties with respect to the subject matter hereof and supersedes all prior understandings and writings relating thereto. No waiver, alteration or modification of any of the provisions hereof shall be binding unless made in writing and signed by the parties. 6.8 Headings. The headings contained in this Agreement are for convenience of reference only and shall not be considered in construing this Agreement.
+
+5
+
+Source: ARCONIC ROLLED PRODUCTS CORP, 10-12B, 12/17/2019
+
+
+
+
+
+6.9 Severability. In the event that any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable because it is invalid or in conflict with any law of any relevant jurisdiction, the validity of the remaining provisions shall not be affected and the invalid provision shall be severed herefrom. 6.10 Assignment. This Agreement may not be assigned by Licensee without the consent of Licensor which consent shall not be unreasonably withheld. Notwithstanding the foregoing, no such consent of Licensor is required under this Agreement in the event of a Change of Control of Licensee so long as: (a) the resulting, surviving or transferee Person assumes all the obligations of the Licensee by operation of Law or pursuant to an agreement in form and substance reasonably satisfactory to the Licensor; and (b) the licenses granted herein shall not be transferrable or sublicensable to Affiliates of such Person unless such Affiliates were Affiliates of Licensee prior to such Change of Control. 6.11 Counterparts; Images Signatures. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original but all of such together shall constitute one and the same instrument. Scanned PDF copies of signatures and facsimile copies of signatures may be deemed original signatures. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their respective authorized officers as of the Effective Date. ARCONIC INC. By Name: Title: ARCONIC ROLLED PRODUCTS CORP. By Name: Title:
+
+6
+
+Source: ARCONIC ROLLED PRODUCTS CORP, 10-12B, 12/17/2019

full_contract_txt/ArmstrongFlooringInc_20190107_8-K_EX-10.2_11471795_EX-10.2_Intellectual Property Agreement.txt

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+Exhibit 10.2
+
+Execution Version
+
+INTELLECTUAL PROPERTY AGREEMENT
+
+This INTELLECTUAL PROPERTY AGREEMENT (this "Agreement"), dated as of December 31, 2018 (the "Effective Date") is entered into by and between Armstrong Flooring, Inc., a Delaware corporation ("Seller") and AFI Licensing LLC, a Delaware limited liability company ("Licensing" and together with Seller, "Arizona") and AHF Holding, Inc. (formerly known as Tarzan HoldCo, Inc.), a Delaware corporation ("Buyer") and Armstrong Hardwood Flooring Company, a Tennessee corporation (the "Company" and together with Buyer the "Buyer Entities") (each of Arizona on the one hand and the Buyer Entities on the other hand, a "Party" and collectively, the "Parties").
+
+WHEREAS, Seller and Buyer have entered into that certain Stock Purchase Agreement, dated November 14, 2018 (the "Stock Purchase Agreement"); WHEREAS, pursuant to the Stock Purchase Agreement, Seller has agreed to sell and transfer, and Buyer has agreed to purchase and acquire, all of Seller's right, title and interest in and to Armstrong Wood Products, Inc., a Delaware corporation ("AWP") and its Subsidiaries, the Company and HomerWood Hardwood Flooring Company, a Delaware corporation ("HHFC," and together with the Company, the "Company Subsidiaries" and together with AWP, the "Company Entities" and each a "Company Entity") by way of a purchase by Buyer and sale by Seller of the Shares, all upon the terms and condition set forth therein;
+
+WHEREAS, Arizona owns certain Copyrights, Know-How, Patents and Trademarks which may be used in the Company Field, and in connection with the transactions contemplated by the Stock Purchase Agreement the Company desires to acquire all of Arizona's right, title and interest in and to such Intellectual Property used exclusively in the Company Field, and obtain a license from Arizona to use other such Intellectual Property on the terms and subject to the conditions set forth herein;
+
+WHEREAS, Seller is signatory to the Trademark License Agreement pursuant to which Seller obtains a license to the Arizona Licensed Trademarks;
+
+WHEREAS, the Company desires to obtain a sublicense to use the Arizona Licensed Trademarks in the Company Field;
+
+WHEREAS, Arizona has obtained consent from all counterparties to the Trademark License Agreement to grant to the Company the sublicenses to the Arizona Licensed Trademarks included in this Agreement; and
+
+WHEREAS, the Company Entities own certain Copyrights and Know-How which may be used in the Arizona Field, and in connection with the transactions contemplated by the Stock Purchase Agreement, Arizona desires to obtain a license from the Company Entities to use such Intellectual Property on the terms and subject to the conditions set forth herein.
+
+NOW, THEREFORE, in consideration of the foregoing and the mutual agreements, provisions and covenants contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
+
+Source: ARMSTRONG FLOORING, INC., 8-K, 1/7/2019
+
+
+
+
+
+1. DEFINITIONS AND INTERPRETATION 1.1 Certain Definitions. As used herein, capitalized terms have the meaning ascribed to them herein, including the following terms have the meanings set forth below. Capitalized terms that are not defined in this Agreement shall have the meaning set forth in the Stock Purchase Agreement. (a) "Arizona Assigned Copyrights" means all Copyrights, whether registered or unregistered, owned by Licensing or Seller as of the Effective Date and used or held for use exclusively in the Company Field as of November 14, 2018 (the "SPA Signing Date") and/or as of the Effective Date. (b) "Arizona Assigned Internet Domain Names" means the Internet domain names set forth on Schedule 1.1(b) and all other Internet domain names owned by Licensing or Seller as of the Effective Date and used or held for use exclusively in the Company Field as of the SPA Signing Date and/or as of the Effective Date (other than any Internet domain names that include any Arizona Licensed Trademarks). (c) "Arizona Assigned IP" means the Arizona Assigned Copyrights, Arizona Assigned Internet Domain Names, Arizona Assigned Know- How, Arizona Assigned Patents and Arizona Assigned Trademarks. (d) "Arizona Assigned Know-How" means all Know-How owned by Licensing or Seller as of the Effective Date and used or held for use exclusively in the Company Field as of the SPA Signing Date and/or as of the Effective Date. (e) "Arizona Assigned Patents" means the Patents set forth on Schedule 1.1(e) and all other Patents owned by Licensing or Seller and used or held for use exclusively in the Company Field as of the SPA Signing Date and/or as of the Effective Date. (f) "Arizona Assigned Trademarks" means the Trademarks set forth on Schedule 1.1(f) and all other Trademarks owned by Licensing or Seller as of the Effective Date and used or held for use exclusively in the in the Company Field as of the SPA Signing Date and/or as of the Effective Date (other than, for clarity any Arizona Licensed Trademarks). (g) "Arizona Domain Names" means the Internet domain names set forth on Schedule 1.1(g). (h) "Arizona Field" means all activities conducted by Arizona or its Affiliates, other than the Company Field. (i) "Arizona Licensed Copyrights" means all Copyrights owned by Licensing or Seller or their respective Affiliates, as of the Effective Date and used or held for use in the Company Field during the five (5) years prior to the Effective Date (other than the Arizona Assigned Copyrights). 2
+
+Source: ARMSTRONG FLOORING, INC., 8-K, 1/7/2019
+
+
+
+
+
+(j) "Arizona Licensed IP" means the Arizona Licensed Copyrights, the Arizona Licensed Know-How, the Arizona Licensed Patents, the Arizona Licensed Trademarks, the Diamond Licensed Trademarks and the Phase-Out Marks. (k) "Arizona Licensed Know-How" means all Know-How owned by Licensing or Seller or their respective Affiliates, as of the Effective Date and used or held for use in the Company Field during the five (5) years prior to the Effective Date (other than the Arizona Assigned Know- How). (l) "Arizona Licensed Patents" means the Patents set forth on Schedule 1.1(l) and all other Patents owned by Licensing or Seller or their respective Affiliates as of the Effective Date and used or held for use in the Company Field during the five (5) years prior to the Effective Date (other than the Arizona Assigned Patents). (m) "Arizona Licensed Trademarks" means the Trademarks set forth on Schedule 1.1(m). (n) "Arizona Trademark License Term" means the period commencing on the Effective Date and ending twenty-four (24) months thereafter. (o) "Company Field" means the design, development, manufacture, marketing, promotion, advertising, sourcing, distribution and sale of solid hardwood and engineered wood flooring products by or for any Company Entity. (p) "Company Licensed Copyrights" means all Copyrights and registrations and applications for any of the foregoing owned by any Company Entity as of the Effective Date and used or held for use in the Arizona Field as of the Effective Date. (q) "Company Licensed IP" means the Company Licensed Copyrights, the Company Licensed Know-How and the Company Licensed Patents. (r) "Company Licensed Know-How" means all Know-How owned by any Company Entity as of the Effective Date and used or held for use in the Arizona Field as of the Effective Date. (s) "Company Licensed Patents" means the Patents set forth on Schedule 1.1(s). (t) "Copyrights" means copyrights (whether registered or unregistered) including applications for copyright (excluding, for clarity, Trademarks). (u) "Diamond Licensed Trademarks" means the Trademarks set forth on Schedule 1.1(u). (v) "Diamond Product" means the design, development, manufacture, marketing, promotion, advertising, sourcing, distribution and sale of the solid hardwood flooring product by any Company Entity as conducted under the Diamond Licensed Trademarks by any Company Entity prior to the Effective Date 3
+
+Source: ARMSTRONG FLOORING, INC., 8-K, 1/7/2019
+
+
+
+
+
+(including the composition of coating used with respect to such solid hardwood flooring product). (w) "Diamond Trademark License Term" means the period commencing on the Effective Date and ending eighteen (18) months thereafter. (x) "Know-How" means trade secrets, and other confidential and proprietary information, inventions, processes, formulas and methodologies. (y) "Licensed IP" means the Arizona Licensed IP and the Company Licensed IP. (z) "Licensed Copyrights" means the Arizona Licensed Copyrights and the Company Licensed Copyrights. (aa) "Licensed Know-How" means the Arizona Licensed Know-How and the Company Licensed Know-How. (bb) "Licensed Trademarks" means the Arizona Licensed Trademarks, the Diamond Licensed Trademarks and the Phase-Out Marks. (cc) "Patents" means patent rights, including patents, patent applications, and all related continuations, continuations-in-part, divisionals, renewals, reissues, re-examinations, substitutions, and extensions thereof, and applications for any of the foregoing. (dd) "Proceeding" means any proceeding, claim, suit or action arising out of, or in connection with, this Agreement or its subject matter (including its validity, formation at issue, effect, interpretation, performance or termination), howsoever arising. (ee) "Seller Licensed Trademarks" means the Arizona Licensed Trademarks and the Diamond Licensed Trademarks. (ff) "Third Party" means any Person other than Arizona, the Company, and their respective Affiliates. (gg) "Trademarks" means any trademarks, service marks, trade names, trade dress, and other similar designations of source or origin, and registrations and applications for any of the foregoing. (hh) "Trademark License Agreement" means the Trademark License Agreement by and between Armstrong World Industries, Inc., AWI Licensing LLC and Armstrong Flooring, Inc, dated as of April 1, 2016 and attached hereto as Exhibit A. 4
+
+Source: ARMSTRONG FLOORING, INC., 8-K, 1/7/2019
+
+
+
+
+
+1.2 Interpretation. Section 10.5 and 10.14 of the Stock Purchase Agreement shall apply hereto, mutatis mutandis. 1.3 Company Actions. In respect of any action herein required to be undertaken by any of the Company Entities, or to be omitted by any of the Company Entities, the Buyer Entities shall cause the applicable Company Entity to so undertake or omit to undertake, as applicable, such action. 2. ASSIGNMENT OF ARIZONA ASSIGNED IP 2.1 Assignment. Arizona agrees to assign and hereby assigns its entire right, title and interest in and to the Arizona Assigned IP to the Company. 2.2 Recordation of Assignment. Arizona will reasonably cooperate with the Company to obtain, record, and perfect title to, and provide all necessary evidence of the Company's ownership of, the Arizona Assigned IP, including the execution of (i) a Patent Assignment in the form of the attached Exhibit B, and (ii) a Trademark Assignment in the form of the attached Exhibit C. 3. GRANT OF COPYRIGHT LICENSE 3.1 Arizona Copyright Grant. Subject to the terms and conditions of this Agreement, Arizona hereby grants to the Company a perpetual, non- exclusive, royalty-free license in, to and under the Arizona Licensed Copyrights for use in the Company Field throughout the world. 3.2 Company Copyright Grant. Subject to the terms and conditions of this Agreement, the Company hereby grants to Seller a perpetual, non- exclusive, royalty-free license in, to and under the Company Licensed Copyrights for use in the Arizona Field throughout the world. 4. GRANT OF KNOW-HOW LICENSE 4.1 Arizona Know-How Grant. Subject to the terms and conditions of this Agreement, Arizona hereby grants to the Company a perpetual, non- exclusive, royalty-free license in, to and under the Arizona Licensed Know-How for use in the Company Field throughout the world. 4.2 Company Know-How Grant. Subject to the terms and conditions of this Agreement, the Company hereby grants to Seller a perpetual, non- exclusive, royalty-free license in, to and under the Company Licensed Know-How for use in the Arizona Field throughout the world. 5. GRANT OF PATENT LICENSE 5.1 Arizona Patent Grant. Subject to the terms and conditions of this Agreement, Arizona hereby grants to the Company a perpetual, non-exclusive, royalty-free license in, to and under the Arizona Licensed Patents for use in the Company Field throughout the world. 5
+
+Source: ARMSTRONG FLOORING, INC., 8-K, 1/7/2019
+
+
+
+
+
+5.2 Company Patent Grant. Subject to the terms and conditions of this Agreement, the Company hereby grants to Seller a perpetual, non-exclusive, royalty-free license in, to and under the Company Licensed Patents for use in the Arizona Field throughout the world. 6. GRANT OF TRADEMARK LICENSE 6.1 Arizona Licensed Trademark Grant. Subject to the terms and conditions of this Agreement, Arizona hereby grants to the Company a limited, non- exclusive, royalty-free, non-sublicensable (except as set forth in Section 7.1), non-assignable license in, to and under the Arizona Licensed Trademarks for the Arizona Trademark License Term for use in the Company Field throughout the world only in the form and manner that such Arizona Licensed Trademarks are used in the Business as of the Closing, provided that the Company shall use commercially reasonable efforts to present the Arizona Licensed Trademarks in the form set forth on Schedule 6.1. 6.2 Diamond Licensed Trademark Grant. Subject to the terms and conditions of this Agreement, Arizona hereby grants to the Company a limited, non- exclusive, royalty-free, non-sublicensable (except as set forth in Section 7.1), non-assignable (except as set forth in Section 13.2) license in, to and under the Diamond Licensed Trademarks for the Diamond Trademark License Term for use with respect to the Diamond Product throughout the world only in the form and manner set forth on Schedule 6.2. 6.3 Quality Control. The Buyer Entities acknowledge the importance of Arizona's exercise of quality control over the use of the Seller Licensed Trademarks to preserve the continued integrity and validity of the Seller Licensed Trademarks and to protect the value and goodwill associated with the Seller Licensed Trademarks, and accordingly: (a) The Company shall ensure that all goods and services provided by the Company, under or in association with any of the Seller Licensed Trademarks, shall (i) be substantially the same as or greater than the quality of goods and services provided under such Seller Licensed Trademarks immediately prior to the Effective Date and (ii) not be associated with any goods or services, including any activities, that are reasonably likely to have an adverse effect on (A) the image or reputation of any of the Seller Licensed Trademarks or (B) Seller's right, title or interest in and to, any of the Arizona Licensed Trademarks. (b) The Company shall not tarnish or bring into disrepute the reputation of or goodwill associated with the Seller Licensed Trademarks or Arizona. (c) The Company shall use the Seller Licensed Trademarks at all times in compliance with all applicable Laws. (d) The Company shall include trademark and other notices in connection with the use of the Seller Licensed Trademarks as reasonably requested by Arizona from time to time. 6
+
+Source: ARMSTRONG FLOORING, INC., 8-K, 1/7/2019
+
+
+
+
+
+(e) The Company shall upon Arizona's reasonable request from time to time, supply to Arizona representative samples and/or written descriptions, as appropriate, of uses made by the Company of the Seller Licensed Trademarks. (f) The Buyer Entities acknowledge that this license grant does not include, and the Company shall receive no rights under this Agreement or the Stock Purchase Agreement, to use any Trademark that is confusingly similar to or derivative of a Seller Licensed Trademark (other than the Seller Licensed Trademarks themselves as expressly authorized hereunder). 6.4 Trademark License Agreement. In addition to the obligations set forth in Section 6.3, and notwithstanding any other provision of this Agreement, the Company shall comply with all obligations applicable to Arizona and its Affiliates under the Trademark License Agreement including, for the avoidance of doubt, any obligations with respect to reporting Complaints (as defined in the Trademark License Agreement), which reports the Company shall provide to Arizona, and quality control and standards, and Licensor Competitors (as defined in the Trademark License Agreement), and neither Party shall undertake any act that would constitute a breach or a basis for termination under the Trademark License Agreement. 6.5 Trade Names. The Company shall not create or use any corporate or trade names that include the Arizona Licensed Trademarks, other than those in existence immediately prior to the Effective Date. No later than thirty (30) days following the Closing, each of AWP and the Company shall change its respective corporate name and trade name and cause its organizational documents to be amended to remove any reference to "Armstrong." 6.6 With respect to any Trademarks notified to the Company in writing after the Effective Date that are used as of the Effective Date in the Company Field and are not (i) owned by any Company Entity, (ii) Arizona Assigned Trademarks, or (iii) Seller Licensed Trademarks (the "Phase-Out Marks") in each case (i)-(iii) the Company shall have a period of twenty-four (24) months from the date of notification to phase out all use. Any use by the Company of any of the Phase-Out Marks as permitted in this Section 6.6, is subject to its use of the Phase-Out Marks in a form and manner and with standards of quality consistent with that in effect for the Phase-Out Marks as of the Effective Date. 6.7 Domain Names. Subject to the terms and conditions of this Agreement, the license set forth in Section 6.1 shall include the right of the Company to use the Arizona Domain Names solely in connection with the applicable Arizona Licensed Trademarks in the Company Field during the Arizona Trademark License Term, in the ordinary course of business in a manner generally consistent with the past practice of Arizona in the Company Field. The Company shall not have the right to register any domain name or social media addresses (or any similar or successor identifiers) containing Arizona Licensed Trademarks. 7
+
+Source: ARMSTRONG FLOORING, INC., 8-K, 1/7/2019
+
+
+
+
+
+7. INTELLECTUAL PROPERTY RIGHTS 7.1 Sublicenses. Arizona may sublicense the licenses granted herein to its Affiliates and Third Parties in the ordinary course of business in support of its and its Affiliates' business, but not for the independent use of Third Parties, and the Company may sublicense the licenses granted herein to Third Parties, its Subsidiaries, AWP, controlled Affiliates, or any holding company that is a direct or indirect parent of the Company in the ordinary course of business in support of its and its Subsidiaries' or controlled Affiliates' business, but not for the independent use of Third Parties (each such Affiliate, Third Party, AWP or Subsidiary, a "Sublicensee"). Each Party shall ensure that any sublicense that it grants to a Sublicensee does not conflict with this Agreement. For clarity, granting a sublicense shall not relieve the Parties of any obligations hereunder and each Party shall cause each of its Sublicensees to comply, and shall remain responsible for such Sublicensees' compliance, with all terms and conditions hereof applicable to the Parties. At the request of a licensing Party, the other Party shall provide to the licensing Party a list of all Sublicensees and otherwise reasonably cooperate with the licensing Party in connection with Sublicensees' compliance with this Agreement. 7.2 Reservation of Rights. Except as expressly provided in the Stock Purchase Agreement or herein, each Party reserves its and its Affiliates' rights in and to all Intellectual Property (including with respect to the use, registration and licensing thereof). 8. OWNERSHIP 8.1 Ownership of Arizona Licensed IP. The Buyer Entities acknowledge and agree that (a) Arizona and its Affiliates own the Arizona Licensed IP (other than the Arizona Licensed Trademarks), (b) AWI Licensing LLC owns the Arizona Licensed Trademarks, (b) neither the Company, nor its Affiliates or its Sublicensees, will acquire any ownership rights in the Arizona Licensed IP, and (c) the Company shall not represent or make any claim that it has an ownership interest in any Arizona Licensed IP. Without limitation to the foregoing, the Company shall not file applications to register any Arizona Licensed IP or assist any person in doing the same, or contest, challenge, or otherwise take any action adverse to Arizona's and its Affiliates' ownership of or rights in and to the Arizona Licensed IP, or assist any person in doing the same. 8.2 Ownership of Company Licensed IP. Arizona acknowledges and agrees that (a) the Company and its Affiliates own the Company Licensed IP, (b) neither Arizona, nor its Affiliates or its Sublicensees, will acquire any ownership rights in the Company Licensed IP, and (c) Arizona shall not represent or make any claim that it has an ownership interest in any Company Licensed IP. Without limitation to the foregoing, Arizona shall not file applications to register any Company Licensed IP or assist any person in doing the same, or contest, challenge, or otherwise take any action adverse to the Company's and its Affiliates' ownership of or rights in and to the Company Licensed IP, or assist any person in doing the same. 8
+
+Source: ARMSTRONG FLOORING, INC., 8-K, 1/7/2019
+
+
+
+
+
+9. PROSECUTION, MAINTENANCE AND ENFORCEMENT 9.1 Responsibility and Cooperation. As between the Parties, Arizona, with respect to the Arizona Licensed IP, and the Buyer Entities, with respect to the Company Licensed IP, shall have the right (but not the obligation) for filing, prosecuting, and maintaining all Arizona Licensed IP and Company Licensed IP, respectively, in the licensing Party's name. For the avoidance of doubt, in case either such Party files any new Intellectual Property registration to the extent covering the Licensed IP, such new Intellectual Property registration shall automatically become Licensed IP. However, and for the further avoidance of doubt, the aforementioned shall not apply to new Intellectual Property created by a licensee Party or its Sublicensees separately and independently from the Licensed IP, for example in case of separate and independent technical enhancements or advancements. The Parties shall reasonably consult and coordinate with each other at the other Party's request with respect to the matters set forth in this Section 9.1. 9.2 No Additional Obligations. This Agreement shall not obligate either Party to disclose to the other Party, or maintain, register, prosecute, pay for, enforce, or otherwise manage any Intellectual Property except as expressly set forth herein. 9.3 Enforcement. As between the Parties, Arizona, with respect to the Arizona Licensed IP, and the Company or Buyer, with respect to the Company Licensed IP, shall have the right (but not the obligation) to elect to bring a Proceeding or enter into settlement discussions regarding, or otherwise seek to resolve, any infringement, misappropriation, or other violation, or allegations of invalidity or unenforceability, of the Licensed IP. In the event that Arizona declines to institute any Proceedings against third-party infringers or violators of any Arizona Licensed Patents, regarding activities that would fall within the Company Field if conducted by the Company, within forty-five (45) days after being notified or becoming aware of such infringing conduct, the Company or Buyer shall have the right to institute any Proceedings against such third-party infringers or violators. In the event that the Company or Buyer elects to institute such Proceedings, Arizona will reasonably cooperate with the Company or Buyer in such Proceedings, and the Company or Buyer shall reimburse Arizona for all reasonable costs and fees incurred by Arizona as a result of such cooperation. Such cooperation by Arizona will include joining such Proceeding as a party, if deemed necessary by the Company or Buyer. In the event that Arizona elects to bring a Proceeding against any alleged infringer of the Arizona Licensed Trademarks and seeks the cooperation of the Licensor of the Trademark License Agreement in such Proceeding, Arizona will take reasonable steps to assist the Company or Buyer in requesting the cooperation of the Licensor of the Trademark License Agreement, and pursuing an infringement claim against such alleged infringer. The Company or Buyer, as applicable, shall retain all benefits, recoveries, injunctions or other value derived from such Proceedings instituted by such Party. 10. INDEMNIFICATION 10.1 Indemnification. Each Party (the "Indemnifying Party") agrees to indemnify, defend and hold harmless the other Party and its Affiliates and their respective employees, 9
+
+Source: ARMSTRONG FLOORING, INC., 8-K, 1/7/2019
+
+
+
+
+
+directors, officers, agents and successors (collectively, the "Indemnified Parties") from and against any and all losses (including all costs, liabilities (including present and future damages), claims and expenses) incurred or suffered by any of the Indemnified Parties, to the extent arising out of, relating to or resulting from (a) a breach by the Indemnifying Party of this Agreement; or (b) any gross negligence or willful misconduct of the Indemnifying Party in connection with this Agreement. 11. DISCLAIMERS 11.1 Disclaimer. Each Party hereby acknowledges that, except to the extent expressly set forth in this Agreement, the Stock Purchase Agreement, the Transition Services Agreement or the Confidentiality Agreement, neither Party nor any of its Affiliates has made any representation or warranty, expressed or implied, including any representation or warranty regarding the validity, enforceability, or scope of the Licensed IP, noninfringement, merchantability or fitness for a particular purpose. 12. TERM 12.1 Term and Termination. (a) Unless earlier terminated pursuant to the provisions hereof, the term of this Agreement and the licenses and other grants of rights (and related obligations) under this Agreement shall (i) with respect to the Arizona Licensed Trademarks, be for the Arizona Trademark License Term, (ii) with respect to the Diamond Licensed Trademarks, be for the Diamond Trademark License Term, (iii) with respect to the Phase- Out Marks, be for the term set forth in Section 6.6, and (iv) with respect to Copyrights, Know-How and Patents, be in perpetuity. (b) Either Party may terminate this Agreement if the other Party materially breaches this Agreement and fails to remedy such breach within thirty (30) days' written notice thereof; provided, however, that if the material breach of this Agreement by the breaching Party is limited to the Licensed Copyrights, Licensed Know-How, the Arizona Licensed Patents, or the Licensed Trademarks, the non-breaching Party shall be entitled to termination solely with respect to the affected part of the license (i.e., in such case, the non-breaching Party may terminate this Agreement with respect to the Licensed Copyrights or the Licensed Know-How or the Arizona Licensed Patents or the Licensed Trademarks, as applicable). 12.2 Effect of Termination. (a) Effect of Termination. Upon termination of this Agreement, each licensee Party shall and shall cause all of its Sublicensees to cease all use of the Licensed IP that is subject to such termination (excluding for clarity (a) any Arizona Licensed Patents, Licensed Copyrights or Licensed Trademarks that are expired, invalid or abandoned or (b) any Licensed Know-How that no longer constitutes confidential information). 10
+
+Source: ARMSTRONG FLOORING, INC., 8-K, 1/7/2019
+
+
+
+
+
+(b) Survival. The following provisions of this Agreement, together with all other provisions of this Agreement that expressly specify that they survive, shall survive expiration or termination of this Agreement, in part or in its entirety: Sections 8, 10, 11, 12.2(a) and 13. 13. MISCELLANEOUS 13.1 Entire Agreement. This Agreement (together with the Schedules attached hereto), the Stock Purchase Agreement, the Transition Services Agreement and the Confidentiality Agreement constitute the entire agreement of the Parties hereto and supersede all prior negotiations, correspondence, agreements and undertakings, both written and oral, between or among the Parties, or any of them, with respect to the subject matter hereof. It shall be expressly understood that the Stock Purchase Agreement shall govern the transactions contemplated thereby as a whole and that this Agreement shall not be construed as an amendment or variation of the Stock Purchase Agreement but rather shall be complemented by and interpreted in light of the Stock Purchase Agreement. In the event that any provision of this Agreement is inconsistent with, conflicts with or contradicts any term of the Stock Purchase Agreement, the terms of the Stock Purchase Agreement will prevail. 13.2 Assignment. Except as otherwise provided in this Agreement, including under Section 7.1, neither this Agreement nor any of the rights, interests or obligations of any Party under this Agreement shall be assigned, in whole or in part, by operation of law or otherwise, by either Party without the prior written consent of the other Party; provided, however, that (a) either Party may assign any of the foregoing in connection with the sale or other transfer of the applicable business or assets of such Party or its Affiliates to which this Agreement relates (except that neither of the Buyer Entities may assign any such rights, interests or obligations with respect to the Arizona Licensed Trademarks); (b) Arizona may assign any of the foregoing to one or more of its Affiliates and (c) the Company and Buyer may assign any of the foregoing to one or more of its Subsidiaries, controlled Affiliates, AWP, or any holding company that is a direct or indirect parent of the Company; provided that in each case (b) and (c), no assignment shall relieve the assigning Party of any of its obligations under this Agreement unless agreed to by the non-assigning Party. Any assignment or other disposition in violation of the preceding sentence shall be void. 13.3 Notices. All notices and other communications given or made pursuant hereto shall be in writing and shall be deemed to have been duly given (i) on the date delivered, if delivered personally, (ii) on the third (3rd) Business Day after being mailed by registered or certified mail (postage prepaid, return receipt requested), or (iii) on the next Business Day after being sent by reputable overnight courier (delivery prepaid), in each case, to the parties at the following addresses, or on the date sent and confirmed by electronic transmission or confirmatory return email to the telecopier number or email address specified below (or at such other address, telecopier number or email address for a Party as shall be specified by notice given in accordance with this Section 13.3):
+
+(a) If to Buyer: 11
+
+Source: ARMSTRONG FLOORING, INC., 8-K, 1/7/2019
+
+
+
+
+
+c/o American Industrial Partners 450 Lexington Avenue, 40th Floor Attention: General Counsel and Richard Hoffman Email: [email protected] [email protected]
+
+with a copy to:
+
+Baker Botts L.L.P. 1299 Pennsylvania Avenue, NW Washington, D.C. 20004 Attention: Terrance L. Bessey Brendan O. Dignan Email: [email protected] [email protected]
+
+(b) If to Arizona:
+
+Armstrong Flooring, Inc. 2500 Columbia Avenue, PO Box 3025 Lancaster, PA 17604 Attention: Christopher S. Parisi Email: [email protected]
+
+with a copy to:
+
+Skadden, Arps, Slate, Meagher & Flom LLP 4 Times Square New York, NY 10036 Attention: Eric L. Cochran Steven J. Daniels Email: [email protected] [email protected] 13.4 Specific Performance. Each Party hereto acknowledges that money damages would be both incalculable and an insufficient remedy for any breach of this Agreement by such Party and that any such breach would cause Arizona, on the one hand, and the Buyer Entities, on the other hand, irreparable harm. Accordingly, each Party hereto also agrees that, in the event of any breach or threatened breach of the provisions of this Agreement by such Party, Arizona, on the one hand, and the Buyer Entities, on the other hand, shall be entitled to equitable relief without the requirement of posting a bond or other security, including in the form of injunctions and orders for specific performance. Any and all remedies herein expressly conferred upon a Party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by law or equity upon such Party, and the exercise by a Party of any one remedy will not preclude the exercise of any other remedy. Arizona, on the one hand, and Buyer Entities, on the other hand, hereby agree not to raise any objections to the availability of the equitable remedy of specific 12
+
+Source: ARMSTRONG FLOORING, INC., 8-K, 1/7/2019
+
+
+
+
+
+performance to prevent or restrain breaches or threatened breaches of this Agreement by the Buyer Entities or Arizona, as applicable, and to specifically enforce the terms and provisions of this Agreement to prevent breaches or threatened breaches of, or to enforce compliance with, the covenants and obligations of the Buyer Entities or Arizona, as applicable, under this Agreement. 13.5 Governing Law; Jurisdiction; Waiver of Jury Trial. (a) This Agreement shall be governed by the laws of the State of Delaware, its rules of conflict of laws notwithstanding. Each Party hereby agrees and consents to be subject to the jurisdiction of the Court of Chancery of the State of Delaware in and for New Castle County, or if the Court of Chancery lacks jurisdiction over such dispute, in any state or federal court having jurisdiction over the matter situated in New Castle County, Delaware, in any Action seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereby. Each Party hereby irrevocably consents to the service of any and all process in any such Action by the delivery of such process to such Party at the address and in the manner provided in Section 13.3 hereof. Each of the Parties hereto irrevocably and unconditionally waives any objection to the laying of venue of any Proceeding arising out of this Agreement or the transactions contemplated hereby in the Court of Chancery of the State of Delaware in and for New Castle County, or if the Court of Chancery lacks jurisdiction over such dispute, in any state or federal court having jurisdiction over the matter situated in New Castle County, Delaware, and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such Proceeding brought in any such court has been brought in an inconvenient forum. (b) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE BREACH, TERMINATION OR VALIDITY OF THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 13.5(b). 13
+
+Source: ARMSTRONG FLOORING, INC., 8-K, 1/7/2019
+
+
+
+
+
+13.6 Severability. If any term or other provision of this Agreement, or any portion thereof, is invalid, illegal or incapable of being enforced by any rule of law or public policy, all other terms and provisions of this Agreement, or the remaining portion thereof, shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party. Upon such determination that any such term or other provision, or any portion thereof, is invalid, illegal or incapable of being enforced, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are consummated to the fullest extent possible. 13.7 Counterparts. This Agreement may be executed in any number of counterparts, including by means of email in portable document format (.pdf), each of which when executed shall be deemed to be an original copy of this Agreement and all of which taken together shall constitute one and the same agreement.
+
+[Remainder of page intentionally left blank] 14
+
+Source: ARMSTRONG FLOORING, INC., 8-K, 1/7/2019
+
+
+
+
+
+IN WITNESS WHEREOF, the Parties have duly executed this Agreement as of the date first written above. ARMSTRONG FLOORING, INC.
+
+By: /s/ Donald R. Maier Name: Donald R. Maier Title: President and Chief Executive Officer
+
+AFI LICENSING LLC
+
+By: /s/ Christina Geerlof Name: Christina Geerlof Title: President
+
+AHF HOLDING, INC. (formerly known as Tarzan Holdco, Inc.)
+
+By: /s/ Stanley Edme Name: Stanley Edme Title: Vice President
+
+ARMSTRONG HARDWOOD FLOORING COMPANY
+
+By: /s/ Jason Braeglemann Name: Jason Braegelmann Title: Vice President [Signature Page to IP Agreement]
+
+Source: ARMSTRONG FLOORING, INC., 8-K, 1/7/2019
+
+
+
+
+
+Schedule 1.1(b) - Arizona Assigned Internet Domain Names Domain Name Expiration date Owner amish-handscraped.com 13-Apr-2019 Armstrong Flooring, Inc. ("AFI") amishhandscraped.com 13-Apr-2019 AFI bruce.adult 28-Apr-2019 AFI bruce.biz 26-Mar-2019 AFI bruce.com 21-Jan-2019 AFI bruce.dpml.pub 29-Oct-2019 AFI bruce.dpmlblock 29-Oct-2019 AFI bruce.info 10-Aug-2019 AFI bruce.porn 28-Apr-2019 AFI bruce.xxx 01-Dec-2021 AFI brucebuilder.com 02-Mar-2019 AFI brucecontractor.com 02-Mar-2019 AFI brucedealer.com 02-Mar-2019 AFI brucedistributor.com 02-Mar-2019 AFI brucefloors.com 04-Aug-2019 AFI brucehardwoodfloors.com 11-Apr-2019 AFI brucehome.com 02-Mar-2019 AFI brucelaminate.com 30-Dec-2018 AFI bruceremodeler.com 02-Mar-2019 AFI bruceretailer.com 02-Mar-2019 AFI brucesucks.com 25-Oct-2018 AFI brucesucks.info 22-Sep-2019 AFI capellaflooringcompany.com 12-Nov-2018 AFI capellafloors.com 27-Oct-2018 AFI forestglenhardwood.com 13-Sep-2019 AFI handscraped-hardwood.com 13-Apr-2019 AFI handscrapedhardwoodflooring.com 13-Sep-2019 AFI handscrapedwoodfloor.com 05-Sep-2019 AFI handscrapehardwoodfloor.com 05-Sep-2019 AFI handscrapehardwoodflooring.com 05-Sep-2019 AFI handscrapehardwoodfloors.com 05-Sep-2019 AFI handscrapewoodfloor.com 05-Sep-2019 AFI handscrapewoodflooring.com 05-Sep-2019 AFI handscrapewoodfloors.com 05-Sep-2019 AFI hardwood-flooring.asia 26-Mar-2019 AFI hartco.biz 18-Nov-2018 AFI hartco.info 10-Aug-2019 AFI hartcodistributor.com 02-Mar-2019 AFI hartcoflooring.com 24-May-2019 AFI
+
+Source: ARMSTRONG FLOORING, INC., 8-K, 1/7/2019
+
+
+
+
+
+Domain Name Expiration date Owner hartcoflooringcompany.com 18-Jun-2019 AFI hartcohome.com 02-Mar-2019 AFI homerwood.com 14-Sep-2019 AFI lifetimeluxuryhardwood.com 14-Jun-2019 AFI lockandfold.com 20-Nov-2018 AFI luxuryhardwood.com 20-Dec-2018 AFI mybruce.com 25-Jul-2019 AFI mybruce.net 25-Jul-2019 AFI myhartco.com 25-Jul-2019 AFI myhartco.net 25-Jul-2019 AFI myrobbins.com 25-Jul-2019 AFI myrobbins.net 25-Jul-2019 AFI powerofparagon.com 15-Jun-2019 AFI premium-hardwood.com 13-Apr-2019 AFI robbins-home.com 02-Mar-2019 AFI robbins.biz 26-Mar-2019 AFI robbins.com 13-Sep-2019 AFI robbins.info 10-Aug-2019 AFI robbinsflooring.com 21-Nov-2018 AFI robbinsflooring.info 22-Sep-2019 AFI robbinsfloors.com 14-Sep-2019 AFI robbinsfloors.net 17-Apr-2019 AFI robbinshardwoodflooring.com 26-Sep-2019 AFI robbinshighperformance.com 18-Oct-2018 AFI smokedhardwood.com 30-Apr-2019 AFI smokedhardwoodfloor.com 30-Apr-2019 AFI smokedhardwoodflooring.com 30-Apr-2019 AFI smokedhardwoodfloors.com 30-Apr-2019 AFI softscrapedhardwoodfloor.com 05-Sep-2019 AFI softscrapedhardwoodflooring.com 05-Sep-2019 AFI softscrapedhardwoodfloors.com 05-Sep-2019 AFI softscrapedwoodfloor.com 05-Sep-2019 AFI softscrapedwoodflooring.com 05-Sep-2019 AFI softscrapedwoodfloors.com 05-Sep-2019 AFI softscrapehardwoodfloor.com 05-Sep-2019 AFI softscrapehardwoodflooring.com 05-Sep-2019 AFI softscrapehardwoodfloors.com 05-Sep-2019 AFI softscrapewoodfloor.com 05-Sep-2019 AFI softscrapewoodflooring.com 05-Sep-2019 AFI softscrapewoodfloors.com 05-Sep-2019 AFI
+
+Source: ARMSTRONG FLOORING, INC., 8-K, 1/7/2019
+
+
+
+
+
+Domain Name Expiration date Owner tmortan.com 07-Sep-2019 AFI tmorten.com 07-Sep-2019 AFI tmortin.com 07-Sep-2019 AFI tmorton-flooring.com 17-Mar-2019 AFI tmorton-floors.com 17-Mar-2019 AFI tmorton-hardwood-flooring.com 17-Mar-2019 AFI tmorton-hardwood-floors.com 17-Mar-2019 AFI tmorton-hardwood.com 17-Mar-2019 AFI tmorton-wood-flooring.com 17-Mar-2019 AFI tmorton-wood-floors.com 17-Mar-2019 AFI tmorton.asia 20-Mar-2019 AFI tmorton.com 17-Mar-2019 AFI tmorton.org 17-Mar-2019 AFI tmortonandco.com 17-Mar-2019 AFI tmortonco.com 17-Mar-2019 AFI wwwbruce.com 01-Mar-2019 AFI wwwhartco.com 17-Jan-2019 AFI wwwrobbins.com 17-Jan-2019 AFI
+
+Source: ARMSTRONG FLOORING, INC., 8-K, 1/7/2019
+
+
+
+
+
+Schedule 1.1(e) - Arizona Assigned Patents
+
+Country App. Status App. Number Filing Date Patent Number Issue Date US Granted 10/459,977 12-Jun-03 7381474 3-Jun-08 AU Granted 2004304906 22-Nov-04 2004304906 28-Oct-10 CN Granted 200480039516 22-Nov-04 ZL200480039516.1 2-Jan-13 DE Granted 6020040309575 22-Nov-04 1944158 11-Feb-17 EP Granted 8007063.4 22-Nov-04 1944158 5-Jan-11 FR Granted 8007063.4 22-Nov-04 1944158 5-Jan-11 GB Granted 8007063.4 22-Nov-04 1944158 5-Jan-11 US Granted 10/727,749 4-Dec-03 7,261,947 28-Aug-07 US Granted 11/901,361 17-Sep-07 8,287,971 16-Oct-12 US Granted 13/611,028 12-Sep-12 8,399,075 19-Mar-13 US Granted 12/825,448 29-Jun-10 8801505 12-Aug-14 US Granted 14/458,103 12-Aug-14 10,072,427 11-Sep-18 AU Granted 2014240948 28-Mar-14 2014240948 20-Oct-16 EP Published 14722915.7 28-Mar-14 AU Granted 2013246000 10-Apr-13 2013246000 26-Nov-15 CA Granted 2,869,667 10-Apr-13 2869667 19-Dec-17 CN Granted 201380018751 10-Apr-13 2512525 9-Jun-17 EP Published 13718698.7 10-Apr-13 US Granted 13/442,960 10-Apr-13 9434087 6-Sep-16 AU Granted 2013246002 10-Apr-13 2013246002 17-Dec-15 CA Granted 2,869,752 10-Apr-13 2869752 3-Jan-17 CN Granted 201380018754 10-Apr-13 104245258 3-May-17 US Granted 13/442,966 10-Apr-12 9,108,335 18-Aug-15 CN Granted 201410046641 10-Feb-14 103978829 12-Apr-17 EP Granted 14154551.7 10-Feb-14 EP2764965 21-Sep-16 US Granted 14/176,299 10-Feb-14 9701040 11-Jul-17 AU Granted 2014240951 28-Mar-14 2014240951 30-Jun-16 AU Granted 2013270463 10-Dec-13 2013270463 26-Nov-15 CN Granted 201310674310 11-Dec-13 103866947 4-Jan-17 AU Granted 2014274549 10-Dec-14 2014274549 15-Oct-15 CA Granted 2,873,571 8-Dec-14 2873571 27-Mar-18 CN Published 201407560485 10-Dec-14 AU Pending 2016287834 5-Jul-16 CN Published 2016800338922 5-Jul-16
+
+Source: ARMSTRONG FLOORING, INC., 8-K, 1/7/2019
+
+
+
+
+
+Country App. Status App. Number Filing Date Patent Number Issue Date EP Published 16818951.2 5-Jul-16 TW Published 20160120286 28-Jun-16 WO Published PCT/US16/40942 5-Jul-16 CN Published 201510954585 17-Dec-15 EP Published 15201544.2 21-Dec-15 US Published 14/970,662 16-Dec-15 AU Pending 2016380976 20-Dec-16 CN Published 20168078711 20-Dec-16 EP Pending 16882368 20-Dec-16 US Published 14/980,263 28-Dec-15 WO Published PCT/US2016/067690 20-Dec-16 AU Pending 2016380975 20-Dec-16 CN Published 201680078712 20-Dec-16 EP Pending 16882368 20-Dec-16 US Published 14/980,313 28-Dec-15 WO Published PCT/US2016/067688 20-Dec-16 WO Published PCT/US2017/055068 5-Oct-17 US Published 15902327 22-Feb-18 WO Published PCT/US18/19186 22-Feb-18 US Granted 09/478,016 5-Jan-00 6164351 26-Dec-00 US Granted 11/390,679 28-Mar-06 7537841 26-May-09 US Granted 09/175,661 20-Oct-98 6148884 21-Nov-00 US Granted 09/303,176 30-Apr-99 6156402 5-Dec-00 US Granted 09/241,878 2-Feb-99 6194078 27-Feb-01 US Pending 62/611953 29-Dec-17 US Expired 62/404,413 5-Oct-16 US Expired 62/462,609 23/Feb-17 US Abandoned 09/903,549 13-Jul-01 US Abandoned 14/828,598 18-Aug-15 US Expired 62/187,925 2-Jul-15 US Granted 12/425,560 17-Apr-09 8,357,752 22-Jan-13 US Granted 13/741,770 15-Jan-13 8,617,654 31-Dec-13 AU Granted 2014274559 10-Dec-14 2014274559 24-Mar-16 EP Published 14199378.2 19-Dec-14 CN Published 2015109813242 23-Dec-15 EP Published 15202406.3 23-Dec-15 US Granted 14/580,347 23-Dec-14 9,567,755 14-Feb-17
+
+Source: ARMSTRONG FLOORING, INC., 8-K, 1/7/2019
+
+
+
+
+
+Country App. Status App. Number Filing Date Patent Number Issue Date US Pending 15/724,391 5-Oct-17
+
+Source: ARMSTRONG FLOORING, INC., 8-K, 1/7/2019
+
+
+
+
+
+Schedule 1.1(f) - Arizona Assigned Trademarks
+
+Country Trademark Status App. Number App. Date Reg. Number Reg. Date US AMERICAN SCRAPE Registered 85616030 3-May-12 4481771 11-Feb-14
+
+CA ARTISAN COLLECTIVE Pending 1817435 10-Jan-17
+
+US ARTISAN COLLECTIVE CLTM
+
+CA ARTISTIC TIMBERS Registered 1670991 2-Apr-14 TMA967273 31-Mar-17
+
+US ARTISTIC TIMBERS CLTM
+
+US BIRCH RUN Registered 85/931,142 14-May-13 4,524,637 6-May-14
+
+CA BIRCH RUN Registered 1,636,822 25-Jul-13 TMA905398 4-Jun-15
+
+US BRISTOL TRAIL Registered 86919986 25-Feb-16 5423957 13-Mar-18
+
+CA BRISTOL TRAIL Published 1769733 26-Feb-16
+
+Source: ARMSTRONG FLOORING, INC., 8-K, 1/7/2019
+
+
+
+
+
+Country Trademark Status App. Number App. Date Reg. Number Reg. Date US BRUSHED IMPRESSIONS Registered 86906683 12-Feb-16 5183009 11-Apr-17
+
+CA BRUSHED IMPRESSIONS Published 1768050 16-Feb-16
+
+CA CAPELLA Published 1789784 4-Jul-16
+
+US DUNDEE Registered 86274578 7-May-14 4649247 2-Dec-14
+
+US EVERGUARD Registered 86084365 7-Oct-13 4654066 9-Dec-14
+
+US FARMINGTON Registered 86920079 25-Feb-16 5423958 13-Mar-18
+
+CA FARMINGTON Published 1769729 26-Feb-16
+
+US FOREST GLEN Registered 86084354 7-Oct-13 4633917 4-Nov-14
+
+CA FOREST GLEN Registered 1769732 26-Feb-16 961263 27-Jan-17
+
+Source: ARMSTRONG FLOORING, INC., 8-K, 1/7/2019
+
+
+
+
+
+Country Trademark Status App. Number App. Date Reg. Number Reg. Date CA FORGED HERITAGE Published 1,752,076 26-Oct-15
+
+CA Hydropel Pending 1917541 30-Aug-18
+
+US Hydropel Pending 88148020 9-Oct-18
+
+US LOCK&FOLD Registered 76656450 13-Mar-06 3200208 23-Jan-07
+
+US MIDTOWN Registered 85736605 24-Sep-12 4401628 10-Sep-13
+
+US MILLWORK SQUARE Registered 86906649 12-Feb-16 5183008 11-Apr-17
+
+CA MILLWORK SQUARE Published 1768051 16-Feb-16
+
+CA ORIGINAL RUSTICS Published 1791791 18-Jul-16
+
+US ORIGINAL RUSTICS CLTM
+
+Source: ARMSTRONG FLOORING, INC., 8-K, 1/7/2019
+
+
+
+
+
+Country Trademark Status App. Number App. Date Reg. Number Reg. Date US PARAGON CLTM
+
+CA PARAGON CLTM
+
+US PRIME HARVEST Registered 86/285,289 19-May-14 4,742,207 26-May-15
+
+CA PRIME HARVEST Registered 1,677,599 20-May-14 TMA906580 17-Jun-15
+
+US RIGHT EVERY TIME Published 87261852 8-Dec-16
+
+US RUSTIC RESTORATIONS Published 87215879 26-Oct-16 5520272 17-Jul-18
+
+CA RUSTIC RESTORATIONS Pending 1806462 26-Oct-16
+
+US SDF Pending '87947440 4-Jun-18
+
+CA SDF Pending 1902212 1-Jun-18
+
+Source: ARMSTRONG FLOORING, INC., 8-K, 1/7/2019
+
+
+
+
+
+Country Trademark Status App. Number App. Date Reg. Number Reg. Date US SIGNATURE SCRAPE Registered 86920111 25-Feb-16 5187924 18-Apr-17
+
+CA SIGNATURE SCRAPE Published 1769731 26-Feb-16
+
+CA SIGNATURE SOFT SCRAPE Published 1769730 26-Feb-16
+
+US TimberBlock Published 87839322 19-Mar-18
+
+CA TimberBlock Pending 1889001 20-Mar-18
+
+US TIMBERBRUSHED Registered 87105110 15-Jul-16 5267454 15-Aug-17
+
+US TIMBERCUTS Registered 87295586 10-Jan-17 5371502 2-Jan-18
+
+CA TIMBERCUTS Pending 1817434 10-Jan-17
+
+US TIMBERLAND Registered 76496979 13-Mar-03 2923877 1-Feb-05
+
+Source: ARMSTRONG FLOORING, INC., 8-K, 1/7/2019
+
+
+
+
+
+Country Trademark Status App. Number App. Date Reg. Number Reg. Date CA TRANQUIL WOODS Published 1790828 11-Jul-16
+
+US TRANQUIL WOODS CLTM
+
+US TruTop Published 87870541 10-Apr-18
+
+CA TruTop Pending 1892873 10-Apr-18
+
+CA VINTAGE FARMHOUSE Published 1790827 11-Jul-16
+
+US WEAR MASTER Registered 74/329383 9-Nov-92 1834641 3-May-94
+
+CN WEAR MASTER Registered 4819937 5-Aug-05 4819937
+
+CA OPAL CREEK Registered 1738695 23-Jul-15 1002365 08-Aug-18
+
+US OPAL CREEK Registered CLTM
+
+Source: ARMSTRONG FLOORING, INC., 8-K, 1/7/2019
+
+
+
+
+
+Schedule 1.1(g) - Arizona Domain Names
+
+Domain Name Expiration date Owner armstrongwoodproducts.com 19-Dec- 2018 AFI
+
+Source: ARMSTRONG FLOORING, INC., 8-K, 1/7/2019
+
+
+
+
+
+Schedule 1.1(l) - Arizona Licensed Patents COUNTRY APP NO. FILING DATE PATENT NUMBER ISSUE DATE AU 2009241803 30-Apr-09 2009241803 26-Sep-13 AU 2013231111 19-Sep-13 2013231111 7-Jan-16 CN 200980120494 30-Apr-09 DE 60 2009 024 610.0 30-Apr-09 2 286 018 EP 9739191.6 30-Apr-09 2286018 11-Jun-14 EP 13192693.3 30-Apr-09 2703461 31-Aug-16 FR 9739191.6 30-Apr-09 2 286 018 11-Jun-14 GB 9739191.6 30-Apr-09 2 286 018 11-Jun-14 US 12/432,845 30-Apr-09 8,420,710 16-Apr-13 US 14/700,669 30-Apr-15 BE 10770074.2 29-Nov-11 2 424 911 23-Mar-16 DE DE 60 2010 031 448.0 29-Nov-11 2 424 911 23-Mar-16 EP 10770074.2 29-Nov-11 2 424 911 23-Mar-16 FR 10770074.2 29-Nov-11 2 424 911 23-Mar-16 GB 10770074.2 29-Nov-11 2 424 911 23-Mar-16 NL 10770074.2 29-Nov-11 2 424 911 23-Mar-16 US 12/799,700 30-Apr-10 US 14/140,206 24-Dec-13 AU 2012286867 26-Jul-12 2012286867 4-Feb-16 CN 2012800367594 26-Jul-12 2094039 1-Jun-16 DE 12751639.1 26-Jul-12 EP2736977 20-May-15 EP 12751639.1 26-Jul-12 EP2736977 20-May-15 GB 12751639.1 26-Jul-12 EP2736977 20-May-15 AU 2013222106 25-Feb-13 2013222106 25-Feb-13 EP 13707792.1 25-Feb-13 US 14/380,432 22-Aug-14 9540825 10-Jan-17 AU 2013308554 30-Aug-13 2013308554 28-Apr-16 CN 201380046030 4-Mar-15 2789549 23-Jan-18 EP 13770989.5 30-Mar-15 EP2890749 16-May-18 US 14/423,186 23-Feb-15 AU 2014207438 8-Jul-15 2014207438 9-Feb-17 EP 14702412.9 14-Aug-15 US 14/760,080 9-Jul-15 AU 2014207441 8-Jul-15 2014207441 10-Nov-16 CN 2014800055962 15-Jul-15 2581656 11-Aug-17 EP 14703007.6 14-Aug-15
+
+Source: ARMSTRONG FLOORING, INC., 8-K, 1/7/2019
+
+
+
+
+
+COUNTRY APP NO. FILING DATE PATENT NUMBER ISSUE DATE US 14/760,060 9-Jul-15 AU 2015227440 16-Sep-15 2015227440 30-Mar-17 CN 2015105859497 23-Dec-14 3045520 24-Aug-18 EP 15198373.1 8-Dec-15 US 14/580,312 23-Dec-14 9650792 16-May-17 EP 1151281 12-Jul-00 1072659 13-Oct-04 US 10/062,616 31-Jan-02 6572932 3-Jun-03 US 10/060,487 30-Jan-02 6911263 28-Jun-05 AU 2016243556 6-Nov-17 CN 2016800223098 16-Oct-17 EP 16719581.7 14-Nov-17 TW 105110285 31-Mar-16 624366 21-May-18 US 14/678,163 3-Apr-15 WO PCT/US16/24457 28-Mar-16 AU 2016243132 6-Nov-17 CN 2016800229978 20-Oct-17 EP 16718052 14-Nov-17 US 15564161 3-Oct-17 WO PCT/US16/24462 28-Mar-16 US 62/142,611 3-Apr-15 AU 2016243552 6-Nov-17 CN 2016800226325 18-Oct-17 EP 16719580.9 14-Nov-17 US 14/678,183 3-Apr-15 WO PCT/US16/24451 28-Mar-16 AU 2016357732 18-Apr-18 CN 2016800648806 7-May-18 EP 16866982.8 14-Jun-18 US 15776637 16-May-18 WO PCT/US2016/062133 16-Nov-16 WO PCT/US2017/055060 5-Oct-17 WO PCT/US2017/055047 4-Oct-17 WO PCT/US2017/055077 4-Oct-17 WO PCT/US2017/055089 5-Oct-17 WO PCT/US2017/055044 5-Oct-17 WO PCT/US2017/055033 4-Oct-17 US 14/721,724 26-May-15 9468314 18-Oct-16
+
+Source: ARMSTRONG FLOORING, INC., 8-K, 1/7/2019
+
+
+
+
+
+Schedule 1.1(m) - Arizona Licensed Trademarks
+
+ARMSTRONG
+
+Source: ARMSTRONG FLOORING, INC., 8-K, 1/7/2019
+
+
+
+
+
+Schedule 1.1(s) - Company Licensed Patents
+
+Country App. Status App. Number Filing Date Patent Number Issue Date US Granted 12/425,560 17-Apr-09 8,357,752 22-Jan-13 US Granted 13/741,770 15-Jan-13 8,617,654 31-Dec-13 CN Published 2015109813242 23-Dec-15 EP Published 15202406.3 23-Dec-15 US Granted 14/580,347 23-Dec-14 9,567,755 14-Feb-17 US Pending 15/724,391 5-Oct-17
+
+Source: ARMSTRONG FLOORING, INC., 8-K, 1/7/2019
+
+
+
+
+
+Schedule 1.1(u) - Diamond Licensed Trademarks
+
+DIAMOND 10
+
+Source: ARMSTRONG FLOORING, INC., 8-K, 1/7/2019
+
+
+
+
+
+Schedule 6.1 - Presentation of Arizona Licensed Trademarks
+
+Armstrong Logo Usage: 1. Logo Colors: The Armstrong logo can appear only in black, white or 100% Tungsten. If reversed out white, it should be on a dark background color. The entire mark must be the same color. The Armstrong logo cannot be used alone.
+
+2. Logo Size: The minimum logo size is 1" or 25mm. In digital formats, the minimum width is 100 pixels at 72 dpi.
+
+Source: ARMSTRONG FLOORING, INC., 8-K, 1/7/2019
+
+
+
+
+
+3. Clear Space: If the business unit identifier is used below the logo, the clear space is 1∕2 the diameter of the Armstrong ring on the top, right side and left side and the width of the stem in in the lower case "r" on the bottom.
+
+If the business unit identifier is used above the logo, the clear space is 1∕2 the diameter of the Armstrong ring on the right side, left side and bottom and the width of the stem of the lower case "r" on the top.
+
+a. There is no clear space defined below the business unit identifier if used below the logo and no clear space defined above the business unit identifier if used above the logo. b. If the business unit identifier is two lines, the clear space definition applies to the top most line, if used above, or bottom most line, if used below the Armstrong logo. 4. Font: The Armstrong logo is considered art and the font type, spacing, bold, cannot be modified.
+
+  5. Logo Background: The logo should never be used on a busy background or one that does not provide enough contrast.
+
+Source: ARMSTRONG FLOORING, INC., 8-K, 1/7/2019
+
+
+
+
+
+6. Logo Direction: The logo can be used on an angle or vertically but must read left to right and top to bottom
+
+7. Circle A: The Circle A can never be used as a separate graphic element.
+
+Notice: 1. The trademark should always be distinguishable from surrounding text - at a minimum, the trademark notice (TM or ®) should be used at least the first time in the text. After first instance, mark should appear with some other distinguishing feature (e.g., different font, all caps, and/or different color) from the surrounding text. 2. Must include notice of AWI Licensing LLC's ownership of the trademark within the credit notice of the product, product documentation, or other product communication. (E.g., Armstrong and the Armstrong Logo are registered trademarks of AWI Licensing LLC.
+
+Source: ARMSTRONG FLOORING, INC., 8-K, 1/7/2019
+
+
+
+
+
+Schedule 6.2 - Presentation of Diamond Licensed Trademarks
+
+Diamond 10® Technology trademark and logo usage: 1. When using Diamond 10® Technology in sentences to identify goods or services: a. Always mark with ® (required for first usage on page) b. Always add a space between Diamond and 10. c. Always keep the entire mark together. 2. Use of Diamond 10® or the Diamond 10® logo must include notice of AFI Licensing LLC's ownership of the trademark within the credit notice of the product, product documentation, or other product communication. (E.g., Diamond 10 and the Diamond 10 Technology logo are registered trademarks of AFI Licensing LLC.) 3. Logo Colors: Can appear only in White or 4 Color Process comprised of Morado, Tungsten and Black. If reversed out White, use only on dark background color for contrast.
+
+COLORS
+
+Source: ARMSTRONG FLOORING, INC., 8-K, 1/7/2019
+
+
+
+
+
+4. Logo Size: A general guideline for the maximum width of the logo in any application should be the equivalent to 20% of the width of the shortest side. Exceptions may be made for signage and promotional materials. The minimum logo size is 1" or 25mm. In digital formats, the minimum width is 100 pixels at 72 dpi.
+
+Source: ARMSTRONG FLOORING, INC., 8-K, 1/7/2019
+
+
+
+
+
+5. Clear Space: The size of the clear space around the logo is determined by the size of the circle of the capital height of the word diamond.
+
+6. Font: The Diamond 10 Technology logo is considered art and the font type, spacing, bold, cannot be modified.
+
+7. Logo Background: The logo should never be used on a busy background or one that does not provide enough contrast.
+
+Source: ARMSTRONG FLOORING, INC., 8-K, 1/7/2019
+
+
+
+
+
+Exhibit A - Trademark License Agreement
+
+Attached.
+
+Source: ARMSTRONG FLOORING, INC., 8-K, 1/7/2019

full_contract_txt/ArtaraTherapeuticsInc_20200110_8-K_EX-10.5_11943350_EX-10.5_License Agreement.txt

@@ -0,0 +1,167 @@
+Exhibit 10.5 CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY […***…], HAS BEEN OMITTED BECAUSE ARTARA THERAPEUTICS, INC. HAS DETERMINED THE INFORMATION (I) IS NOT MATERIAL AND (II) WOULD LIKELY CAUSE COMPETITIVE HARM TO ARTARA THERAPEUTICS, INC. IF PUBLICLY DISCLOSED. SPONSORED RESEARCH AND LICENSE AGREEMENT This Sponsored Research and License Agreement (this "Agreement") is entered into on November 28, 2018 (the "Effective Date"), by and between ArTara, Inc. located at 1 Little West 12t h Street, New York, NY 10014 ("ArTara"), and The University of Iowa, located at c/o Division of Sponsored Programs, 2 Gilmore Hall, Iowa City, IA 52242 ("University"). ArTara and University may individually be referred to herein as a "Party," and collectively as "Parties." WI T N E S S E T H: WHEREAS, ArTara is engaged in the development of pharmaceutical products for the treatment of serious rare diseases; WHEREAS, University is engaged in clinical research to improve the diagnosis and treatment of lymphangioma (LM) using OK-432 (as defined below), a pharmaceutical product not approved by regulatory authorities in the United States; WHEREAS, University is engaged in a clinical research Program (as defined below) and with Chugai Pharmaceutical Co., Ltd., 1-1 Nihonbashi 2-Chome, Chuo-ku, Tokyo, 103-8324 Japan, and its wholly-owned subsidiary, Chugai Pharma U.S.A, LLC 300 Connell Drive, Suite 3100, Berkeley Heights, New Jersey 07922 (collectively "Chugai"), the product manufacturer; WHEREAS, Principal Investigator (as defined below) of the Program is an employee of the University and holds the IND (as defined below) approved by the FDA (as defined below) for OK-432 under BB-IND#5266; WHEREAS, ArTara wishes to develop and submit for regulatory approval, TARA-002, a proposed product that will be biosimilar to OK- 432; WHEREAS, ArTara wishes to use the Program Data (as defined below) collected from the Program, conduct research analysis of the Data and potentially rely on said Program Data to support Regulatory Approvals (as defined below) for TARA-002 in the Territory (as defined below); and WHEREAS, the copying, review and analysis of Program Data for the Project (as defined below) contemplated by this Agreement is of mutual interest and benefit to University and ArTara. NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants and agreements contained herein, the Parties agree as follows: ARTICLE ONE DEFINITIONS 1.1 "Affiliates" of a person or entity means any other entity which (directly or indirectly) is controlled by, controls or is under common control with such person or entity. For the purposes of this definition, the term "control" (including, with correlative meanings, the terms "controlled by" and "under common control with") as used with respect to an entity will mean (i) in the case of a corporate entity, direct or indirect ownership of voting securities entitled to cast at least fifty percent (50%) of the votes in the election of directors, or (ii) in the case of a non-corporate entity, direct or indirect ownership of at least fifty percent (50%) of the equity interests with the power to direct the management and policies of such entity, provided that if local law restricts foreign ownership, control will be established by direct or indirect ownership of the maximum ownership percentage that may, under such local law, be owned by foreign interests.
+
+1
+
+Source: ARTARA THERAPEUTICS, INC., 8-K, 1/10/2020
+
+
+
+
+
+1.2 "CRO" means a contract research organization selected by ArTara to assist in the Project as approved by the University and/or Principal Investigator, such approval not to be unreasonably delayed or withheld. 1.3 "FDA" means the United States Food and Drug Administration. 1.4 "Field" means all therapeutic, diagnostic and prophylactic uses of the Product(s). 1.5 "First Commercial Sale" means the first sale for use or consumption for which revenue has been recognized of Product in a country or territory after all required Regulatory Approvals for commercial sale of Product have been obtained in such country or territory. 1.6 "ICH-GCP's" means the International Conference on Harmonization and Good Clinical Practice Guidelines as adopted in the applicable FDA regulations. 1.7 "Indication" means treatment of lymphangioma (also known as lymphatic malformations) in humans. 1.8 "IND" means University filed investigational new drug application on file with the FDA (BB-IND#5266) for OK-432 for the Indication. 1.9 "Net Sales" means, with respect to the Product, the gross invoiced sales price payable to ArTara and/or its Affiliates and their respective licensees and sublicensees for sales anywhere in the world of the Product to a third party, less: (a) discounts (including cash, quantity and patient program discounts), retroactive price reductions, charge-back payments and rebates granted to managed health care organizations or to federal, state and local governments, their agencies, and purchasers and reimbursers or to trade customers; (b) credits or allowances actually, not to exceed the original invoice amount, granted upon claims, damaged goods, rejections or returns of the Product, including the Product returned in connection with recalls or withdrawals; (c) freight out, postage, shipping and insurance charges for delivery of the Product if charged separately and include in the gross receipts; and (d) taxes or duties, excluding income taxes and value-added taxes, levied on, absorbed or otherwise imposed on the sale of the Product, including governmental charges otherwise imposed upon the billed amount, as adjusted for rebates and refunds, provided that such are included in gross receipts and are paid to and/or its Affiliates and their respective licensees and sublicensees.
+
+2
+
+Source: ARTARA THERAPEUTICS, INC., 8-K, 1/10/2020
+
+
+
+
+
+Net Sales shall be determined in accordance with generally accepted accounting principles, consistently applied. 1.10 "OK-432" means Picibanil (OK-432), a lyophilized mixture of group A Streptococcus pyogenes developed by Chugai and that has been approved by applicable Japanese pharmaceutical regulatory authorities for the treatment of the Indication. 1.11 "Principal Investigator" means Richard Smith, MD 1.12 "Product" shall mean TARA-002 and any similar products. 1.13 "Program" means collectively, the clinical research studies investigating the efficacy and safety of OK-432 for the Indication conducted by Principal Investigator in collaboration with multiple sites in the United States and the University expanded access program performed by Principal Investigator designed to improve the diagnosis and treatment of the Indication using OK-432. 1.14 "Program Data" means the data set forth on Exhibit A including all case reports forms, source data, and safety data in the possession of or available to University arising from the Program and any other data and information included in the IND. 1.15 "Project" shall mean the compilation and available statistical analyses of the Program Data as described in the Project Plan, which is summarized in Section 2.2. 1.16 "Project Documentation" shall mean the documentation created and generated by ArTara and CRO in the conduct of the Project that incorporates or is based upon Program Data. 1.17 "Project Plan" means the plan for the Project mutually agreed upon by the Parties as summarized in Section 2.2. 1.18 "Right of Reference" means the authority to rely upon, and otherwise use, an investigation for the purpose of obtaining Regulatory Approvals, including the ability to make available the underlying raw (source) data from the investigation for audit, if necessary. 1.19 "Regulatory Approvals" means the medical, technical and scientific licenses, registrations, authorizations and approvals (including without limitation, approvals of IND's, New Drug Applications ("NDA's") and equivalents, supplements and amendments, pre- and post- approvals, pricing and third-party reimbursements approvals and labeling approvals) for the development and commercialization of pharmaceutical products. 1.20 "Regulatory Authorities" means any applicable national, regional, state or local regulatory agency, department, bureau, commission, council or other governmental entity, necessary for the development, manufacture, distribution, marketing, promotion, offer for sale, use, import, export or sale of a pharmaceutical product in a regulatory jurisdiction. 1.21 "Regulatory Filings" means collectively, IND's, Product License Applications, Drug Master Files, NDA's, Biological License Applications ("BLAs") including supportive and annual filings and/or any other equivalent or comparable filings as may be required by Regulatory Authorities to obtain Regulatory Approvals. 1.22 "Royalty" means the royalty on Net Sales of Product in the Indication, as set forth in Article Three below.
+
+3
+
+Source: ARTARA THERAPEUTICS, INC., 8-K, 1/10/2020
+
+
+
+
+
+1.23 "TARA-002" means the ArTara pharmaceutical product intended to be similar to or biosimilar to OK-432. 1.24 "Territory" means worldwide. ARTICLE TWO PROJECT 2.1 Performance of Project. The University and/or Principal Investigator together with ArTara and the CRO will conduct the Project in accordance with the Project Plan and will use all reasonable endeavors consistent with their expertise to successfully complete the Project. It is the goal of the Project to use the Program Data as clinical support for Product Regulatory Filings and to gain approval to commercialize the Product for the Indication in the Territory. 2.2 Project Plan. The Project Plan as approved by each of the Parties may be modified or amended only upon mutual agreement of each of the Parties. The Project will consist of three phases: (a) Phase I: University and/or Principal Investigator will provide access to the Program Data to ArTara and the CRO at the University's facilities. ArTara and the CRO will be allowed to make complete copies of the original Program Data for the purposes of off-site data entry and storage, all as and only to the extent needed to support ArTara's efforts to accomplish the Project. University will provide ArTara and CRO the opportunity to examine the originals of medical records and supporting records for the Program Data at the University during normal business hours and at mutually agreeable times. University and Principal Investigator will also provide to ArTara contact information for other participating investigators and research sites that have contributed data to the Program. University will retain all Program Data for the sooner to occur of a New Drug Application (NDA) for the Product being approved or ten (10) years from the Effective Date. ArTara will bear any costs related to necessary long-term on or off-site storage of the Program Data, medical records and/or supporting records. ArTara understands that separate engagement agreements may be required by collaborating third party entities and associated principal investigators and University will assist ArTara in obtaining such agreements. It is understood that the goal of Phase I is a feasibility analysis of the Program Data to support Regulatory Filings in the United States. (b) Phase II: University recognizes that because of ArTara's unfamiliarity with the Program Data database, assistance from the Principal Investigator and other research and medical employees of the University may from time to time be needed for ArTara to query and analyze the Program Data database as needed to achieve successful presentation to applicable Regulatory Authorities and submission of Regulatory Filings. ArTara will endeavor to minimize University resources required during Phase II. The goal of Phase II will be to compile the Project Documentation. (c) Phase III: CRO will convert Program Data to eCTD format for submission to Regulatory Authorities. University recognizes that ArTara may receive specific data requests from Regulatory Authorities in connection with ArTara's presentations of Program Data to support Regulatory Filings. University will assist ArTara in responding to such requests for data or access to source data from Regulatory Authorities. ArTara agrees to notify University of such requests as soon as is practicable. The goal of Phase III will be filing of a BLA based on Project Documentation and response to Regulatory Authorities.
+
+4
+
+Source: ARTARA THERAPEUTICS, INC., 8-K, 1/10/2020
+
+
+
+
+
+(d) Phase IV Optional: Upon mutual written agreement of University and ArTara, ArTara may sponsor, and University may conduct, new Product or Product-related clinical studies (for example, follow-up studies) to support the goal of the Project or as may be useful for gaining or maintaining Regulatory Approvals for the Product for the Indication. Any such studies will be at the sole discretion of each Party subject to terms and conditions to be mutually agreed upon in agreements separate from this Agreement. Richard Smith, MD will be given first consideration as a principal investigator for all new Product or Product- related clinical studies, in addition to other sites provided final site selection will be based on the best interest of the Project. (e) Phase V: Publication: Collected data from the Project will be used to write a paper by the University and/or Principal Investigator (the "Publication") as a follow up to the publication in 2009 (Smith MC, Zimmerman MB, Burke DK, Bauman NM, Sato Y, Smith RJ; OK-432 Collaborative Study Group. Efficacy and safety of OK-432 immunotherapy of lymphatic malformations. Laryngoscope. 2009Jan;119(1):107-15. doi: 10.1002/lary.20041. PubMed PMID: 19117316) .  ( the "Publication"). The Publication will be in accordance with the terms in Article 5 herein. 2.3 Project Management. During the term of this Agreement, the Principal Investigator and and/or his authorized representative and ArTara authorized representatives will meet as necessary to consult with one another and discuss the progress and results of the Project and any modifications to the Project Plan. Consultation by either Party shall be by means of personal visits, correspondence and telephone calls, all as appear reasonable and necessary and are mutually agreed upon by the Principal Investigator and ArTara. ARTICLE THREE FUNDING AND PAYMENT 3.1 Funding. During the term of the Project in accordance with the Project Plan, ArTara will provide thirty thousand dollars (US $30,000) per year in funding for the Project, taking into consideration the time spent by University employees required for the Project. The Parties agree to discuss in good faith potential additional funding required for completion of the Project as applicable and necessary. 3.2 Approval Milestone based on Data Value: Within forty-five (45) days of an approval of the TARA-002 BLA by the FDA, ArTara will pay a one- time approval milestone to University pursuant to the usefulness of the Program Data in TARA-002's BLA filing, as set forth below: Official Feedback from FDA regarding the Program Data Milestone […***…] $[…***…] […***…] $[…***…] […***…] $[…***…] […***…] […***…]
+
+5
+
+Source: ARTARA THERAPEUTICS, INC., 8-K, 1/10/2020
+
+
+
+
+
+3.3 Royalties. Royalties will be payable by ArTara on Net Sales of Product in the Indication. ArTara will, no later than […***…] following the close of each calendar quarter, pay tiered Royalties based on annual Net Sales of Product in the Indication as set forth below:
+
+Annual Net Sales of Product for the Indication Annual Royalty Rate Percent Net Sales
+
+$0 - $25,000,000 1.75%
+
+>$25,000,000 - $50,000,000 2.25%
+
+>$50,000,000 2.50%
+
+3.4 Royalty Reduction. In the event the Regulatory Authorities determine that the Program Data is not sufficient for Regulatory Approvals on its own and additional pediatric efficacy and safety clinical studies are required, Royalties set forth above will be reduced by […***…] percent ([… ***…]%). 3.5 Sales Milestone Payments. In the event that Annual Net Sales, as detailed in Section 3.3, surpass certain thresholds, ArTara will make the following payments no later than […***…] following the close of the calendar quarter in which each milestone is reached as set forth below:
+
+Annual Net Sales of Product for the  Indication Exceeds Milestone Payment
+
+$25,000,000 $62,500
+
+$50,000,000 $62,500
+
+$100,000,000 $125,000
+
+3.6 Payments. All payments under Articles 3.2, 3.3 and 3.5 shall be sent to the following address: Checks will be sent to: The University of Iowa Research Foundation ATTN: Accounting 6 Gilmore Hall 112 North Capitol St. Iowa City, IA 52242-5500 Wire transfers will be sent to: […***…]
+
+6
+
+Source: ARTARA THERAPEUTICS, INC., 8-K, 1/10/2020
+
+
+
+
+
+ArTara will include the University of Iowa Research Foundation agreement number 2019- 068, a reference to "Richard Smith, MD, ArTara Sponsored Research and License Agreement dated November 28, 2018" and purpose of payment with all payments. ArTara will add all applicable wire transfer fees to wire transfer payments. All other payments shall be sent to the following address: The University of Iowa c/o Grant Accounting Office 118 S. Clinton St. Iowa City, IA 52242 ARTICLE FOUR DATA AND INTELLECTUAL PROPERTY 4.1 Program Data and Project Documentation. (a) Program Data. Access to all original Program Data shall be provided to ArTara and the CRO at University's facilities in accordance with the Project Plan for the purposes of review and copying as and only to the extent needed to support ArTara's efforts to accomplish the Project. As between ArTara and the University, ownership of all Program Data is hereby retained by the University. (b) Project Documentation. All Project Documentation shall be owned by ArTara to the extent publishable in accordance with Section 5 herein, except that ownership of any and all Program Data incorporated into Project Documentation shall as between ArTara and the University remain with the University. University may use all Project Documentation without royalty obligation for patient care and for its own internal teaching, research, and educational purposes, for publication to the extent permitted under Section 5 herein, and for the purpose of complying with any federal, state, or local laws or regulations. All medical records that support the Program Data and Project Documentation shall remain the property of the University. 4.2 License. University hereby grants to ArTara an exclusive license to use the Program Data solely for the Project and in Regulatory Filings in the Field in the Territory. 4.3 Right of Reference and IND Assignment. University hereby grants to ArTara an exclusive Right of Reference to all Program Regulatory Filings by University in support of the Product. Upon written request of ArTara, University will assign the IND to ArTara. 4.4 Intellectual Property. All intellectual property or patentable inventions arising out of or in connection with the Project which is discovered or invented solely by the University and/or Principal Investigator shall be the exclusive property of the University ("University Intellectual Property"). All intellectual property or patentable inventions arising out of or in connection with the Project which is discovered or invented solely by or on behalf of ArTara shall be the exclusive property of ArTara. All intellectual property or patentable inventions arising out of or in connection with the Project that are discovered or invented jointly by Principal Investigator and ArTara shall be considered Joint Intellectual Property and shall be jointly owned by the University and ArTara.
+
+7
+
+Source: ARTARA THERAPEUTICS, INC., 8-K, 1/10/2020
+
+
+
+
+
+ARTICLE FIVE CONFIDENTIAL INFORMATION; PUBLICATION 5.1 Confidentiality. During the term of this Agreement and for a period of seven (7) years after its termination or expiration each Party (the "Receiving Party") shall maintain in confidence and, except as authorized by this Agreement, not use any know-how, data, processes, techniques, formulas, test data and other information disclosed by the other Party (the "Disclosing Party") and which for any of the foregoing, if written, is marked "Confidential" by the Disclosing Party or, if verbal or visual, is identified in writing as "Confidential" at the time of disclosure and reduced to writing by the Disclosing Party within thirty (30) days of the verbal or visual disclosure ("Confidential Information"). 5.2 Exceptions. The obligations of confidentiality and non-use set forth in paragraph 5.1 shall not apply to the extent that it can be established by Receiving Party that the information: (a) was already known to Receiving Party without restriction at the time of disclosure; (b) was generally available to the public or otherwise part of the public domain at the time of its disclosure; (c) became generally available to the public or otherwise part of the public domain after its disclosure to Receiving Party through no breach of this Agreement by Receiving Party; (d) was disclosed to Receiving Party without restriction by a third party who had no known obligation to not to disclose such information; (e) was independently developed by Receiving Party without the use of Confidential Information; (f) was required to be disclosed by operation of law or court order; or (g) Disclosing Party gave prior written consent to Receiving Party to disclose such Confidential Information. 5.3 Return of Confidential Information. In the event the Disclosing Party requests in writing the return of Confidential Information, the Receiving Party shall return such Confidential Information to Disclosing Party with the exception of one copy, which may be retained for archival purposes. 5.4 Publication. The University and ArTara each agree to treat matters of authorship of the Publication in a proper collaborative spirit and following guidelines and policies in accordance with the University of Iowa's Operations Manual which may be found at: https://opsmanual.uiowa.edu/. It is anticipated that employees of the University will be first and senior authors on the Publication, but it is understood that final authorship will be determined in accordance with all applicable laws and regulations in publication practice, including Section 6002 of the Affordable Care Act a/k/a Sunshine Act and with ICMJE (International Committee of Medical Journal Editors) guidelines, standard scientific practice and journal guidelines. University and/or Principal Investigator shall provide ArTara with a copy of any proposed Publication for review and comment at least […***…] prior to submission thereof for publication. ArTara shall have […***…], after receipt of said copy to object to such proposed Publication because there is Confidential Information which needs protection. In the event that ArTara makes such objection, University and/or Principal Investigator shall refrain from submitting such Publication for a maximum of […***…] from date of receipt of such objection in order for ArTara to file patent application(s) directed to patentable subject matter contained in the proposed Publication. If in its review, ArTara identifies information it considers to be its Confidential Information, ArTara may require redaction of that Confidential Information; provided, however, that ArTara shall not require removal of information necessary for complete and accurate presentation and interpretation of the Program Data and results. The Publication shall occur within […***…] of the date the Project is closed or terminated, or University and/or Principal Investigator shall be free to publish Program Data and results at that time.
+
+8
+
+Source: ARTARA THERAPEUTICS, INC., 8-K, 1/10/2020
+
+
+
+
+
+ARTICLE SIX REPRESENTATIONS; INDEMNIFICATION 6.1 Representations. University represents: (a) The Program is being, and has been, conducted in accordance with all applicable local, state and federal laws, and regulations, including, but not limited to, the Federal Food, Drug and Cosmetic Act and the regulations of the FDA, International Conference on Harmonization Good Clinical Practices as adopted in the applicable FDA regulations ("GCP's"), and the Form FDA 1572 Statements of Investigators. (b) The Program is being and has been conducted in accordance with all applicable medical privacy laws or regulations, including without limitation, by obtaining any required subject informed consent to allow ArTara and ArTara's authorized representatives, FDA and other Regulatory Authorities access to and use of enrolled subjects' medical information as may be necessary for ArTara to receive and use Program Data under this Agreement. (c) The clinical studies included in the Program are and have been conducted in accordance with the applicable protocol associated with the BB-IND#5266 held by the Principal Investigator. (d) University represents that informed consent was required from all individual subjects prior to enrollment in the Program, and that the Program was approved by the Institutional Review Board of the University. (e) University represents that it is authorized to enter into this Agreement and that the terms of this Agreement are consistent with the rules, regulations, policies and/or guidelines of University. (f) University represents that to the best of its knowledge and belief there are no outstanding agreements or assignments which are inconsistent with the rights granted to ArTara pursuant to Article Four. (g) The Parties shall commence performance of the Project promptly after the date of last signature of this Agreement and shall perform the Project in accordance with the current state of the laboratory research art and in accordance with applicable state and federal laws, including export laws, and regulations. (h) University represents to the best of its knowledge, all information provided to ArTara pursuant to this Agreement is accurate in accordance with ICH-GCP's. (i) EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, THE UNIVERSITY MAKES NO REPRESENTATION AND EXTENDS NO WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT. IN PARTICULAR, BUT WITHOUT LIMITATION, THE UNIVERSITY MAKES NO REPRESENTATION AND EXTENDS NO WARRANTY CONCERNING WHETHER THE PROGRAM DATA IS ACCURATE OR COMPLETE. THE PARTIES RECOGNIZE AND AGREE THAT ALL PROGRAM DATA, AND RELATED MATERIALS, DOCUMENTS, AND OTHER INFORMATION, THE UNIVERSITY MAKES AVAILABLE TO ARTARA AT ANY TIME IN CONNECTION WITH THIS AGREEMENT, ARE MADE AVAILABLE TO ARTARA AS AN ACCOMMODATION, AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, AS TO THE ACCURACY AND COMPLETENESS OF SUCH MATERIALS, DOCUMENTS, AND OTHER INFORMATION. ARTARA EXPRESSLY AGREES THAT ANY RELIANCE UPON OR CONCLUSIONS DRAWN FROM THE PROGRAM DATA SHALL BE AT ARTARA'S OWN RISK TO THE MAXIMUM EXTENT PERMITTED BY LAW AND SHALL NOT GIVE RISE TO ANY LIABILITY OF OR AGAINST THE UNIVERSITY. ARTARA HEREBY WAIVES AND RELEASES ANY CLAIMS ARISING UNDER THIS AGREEMENT, COMMON LAW OR ANY STATUTE ARISING OUT OF ANY PROGRAM DATA, RELATED MATERIALS, DOCUMENTS OR INFORMATION PROVIDED TO IT BY THE UNIVERSITY.
+
+9
+
+Source: ARTARA THERAPEUTICS, INC., 8-K, 1/10/2020
+
+
+
+
+
+(j) University represents, to the best of its knowledge and belief, that neither it nor any of its officers, directors, employees involved in performing the Project is presently debarred pursuant to the Generic Drug Enforcement Act of 1992. University shall notify ArTara upon becoming aware of any inquiry or the commencement of any such investigation or proceeding. 6.2 Representations. ArTara represents and warrants: (a) It is a company duly organized, existing, and in good standing under the laws of Delaware; (b) The execution, delivery, and performance of this Agreement have been authorized by all necessary corporate action on the part of ArTara and the person signing this Agreement on behalf of ArTara has the authority to do so; (c) The making, exercising of any right, or performance of any obligation under this Agreement does not violate any separate agreement it has with a third party, and in so acting, ArTara will not breach the terms and conditions of this Agreement or fail to comply with applicable laws, regulations, and court orders; (d) It is not a party to any agreement or arrangement that would prevent it from performing its duties and fulfilling its obligations to the University under this Agreement; (e) It has and will maintain at the time specified in Article 7 herein, the insurance coverage called for in Article 7; (f) It will obtain any additional licenses from any third party needed to perform and fulfill its duties and obligations under this Agreement; and (g) There is no pending litigation and no threatened claims against it that could impair its ability or capacity to perform and fulfill its duties and obligations under this Agreement. 6.3 Indemnification by ArTara. To the extent permitted by law, ArTara agrees to defend, indemnify and hold the University of Iowa Research Foundation, the University, the State of Iowa, the University's Board of Regents, their respective affiliates, trustees, officers, directors, faculty, staff, students, successors, assigns, independent contractors, agents and employees including but not limited to Principal Investigator ("University Indemnitees"), harmless from and against any and all liability, loss, expense, reasonable adjudicated attorneys' fees, or claims for injury or damages arising out of the use of the Program Data by ArTara and its Affiliates and subcontractors including but not limited to the CRO involved in the Project, but only in proportion to and to the extent such liability, loss, expense, attorneys' fees, or claims for injury or damages are caused by or result from the negligent or acts or omissions of ArTara, its officers, agents, employees, subcontractors, the CRO or Affiliates.
+
+10
+
+Source: ARTARA THERAPEUTICS, INC., 8-K, 1/10/2020
+
+
+
+
+
+6.4 No Consequential Damages. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY UNDER THIS AGREEMENT IN A DIRECT ACTION BETWEEN THE PARTIES FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS) SUFFERED BY THE OTHER PARTY. ARTICLE SEVEN INSURANCE 7.1 ArTara, Affiliates, and sublicensees will obtain and maintain commercial general liability insurance with a reputable and financially secure insurance carrier prior to clinical testing, making, using, importing, offering to sell, or selling any licensed Product or engaging in any other act involving any licensed Product or the patent rights, if such act could possibly create risk of a claim against University Indemnitees for personal injury or property damage. (a) The insurance will identify University Indemnitees as additional insureds and will provide that the carrier will notify University in writing at least […***…] prior to cancellation, non-renewal, or material change in coverage. Should ArTara fail to obtain replacement insurance providing comparable coverage within such […***…] period, University will have the right to termination this Agreement effective as of the end of the […***…] period without notice or any additional cure period. (b) The insurance will include coverage for product liability with a minimum of […***…] dollars ($[…***…]) per occurrence and [… ***…] dollars ($[…***…]) annual aggregate, coverage for contractual liability, clinical trials liability if any such trial is performed, bodily injury and property damage, including completed operations, personal injury, coverage for contractual employees, blanket contractual and products, and all other coverages standard for such policies. Such insurance will additionally include errors and omissions insurance with a minimum of […***…] dollars ($[…***…]) per occurrence. (c) Insurance policies purchased to comply with this Article Seven will be kept in force for at least […***…] after the last sale of licensed Product. 7.2 At University's request, such request to be made no more than annually, ArTara will provide University with a certificate of insurance and notices of subsequent renewals for its insurance and that of Affiliates extended rights under this Agreement and of sublicensees. 7.6 The specified minimum coverages and other provisions of this Article Seven do not constitute a limitation on ArTara's obligation to indemnify the University Indemnitees under this Agreement.
+
+11
+
+Source: ARTARA THERAPEUTICS, INC., 8-K, 1/10/2020
+
+
+
+
+
+ARTICLE EIGHT TERM AND TERMINATION 8.1 Term. This Agreement may be terminated by ArTara upon thirty (30) days prior written notice to University. 8.2 Termination by Either Party. Either Party may terminate the Project and all commitments and obligations with respect thereto, subject to Section 8.3 herein, upon thirty (30) days written notice to the other Party. In the event of any termination of the Project by University, (a) University agrees to complete Phase I and II of the Project, and (b) ArTara will continue to provide annual funding until the completion of Phase II. Upon termination of the Project by ArTara this Agreement will terminate subject to Section 8.3 and ArTara will reassign to University the IND if assignment thereof previously occurred pursuant to Section 4.3. 8.3 Survival. Termination of the Project for any reason shall not relieve any Party of any obligation that accrued under this Agreement prior to termination. The provisions of Article Three, Article Four, Article Five, Sections 6.3 and 6.4, and Articles Seven through Nine shall survive termination of the Project by University. The provisions of Article Five, Sections 6.3 and 6.4, Article Seven, Section 8.3 and Article Nine shall survive termination of the Project and this Agreement by ArTara. ARTICLE NINE MISCELLANEOUS 9.1 Force Majeure. University will not be liable for any failure to perform as required by this Agreement, if the failure to perform is caused by circumstances reasonably beyond University's control, such as labor disturbances or labor disputes of any kind, accidents, failure of any governmental approval required for full performance, civil disorders or commotions, acts of aggression, acts of God, energy or other conservation measures, explosions, failure of utilities, mechanical breakdowns, material shortages, disease, thefts, or other such occurrences. 9.2 Publicity. No Party will use directly or by implication the name of any other Party, or the name of any employee thereof without prior written notification and agreement of the named Party for promotional, marketing or advertising purposes. Notwithstanding the foregoing, nothing herein shall prevent either Party from disclosing the existence of this Agreement, the identities of the Parties, or the basic nature and scope of the purpose of this Agreement. 9.3 Notices. Any Notice required to be given pursuant to this Agreement shall be made by personal delivery or, if by mail, then by registered or certified mail, return receipt requested, by one Party to the other Party at the following addresses. In the case of ArTara, Notice should be sent to: ArTara Therapeutics 1 Little West 12t h Street NY, NY 10014
+
+12
+
+Source: ARTARA THERAPEUTICS, INC., 8-K, 1/10/2020
+
+
+
+
+
+Attention: Jesse Shefferman In the case of University, Notice should be sent to: The University of Iowa c/o Division of Sponsored Programs 2 Gilmore Hall Iowa City, IA 52242 Attention: […***…] 9.4 Governing Law. This Agreement shall be governed by the laws of the State of Iowa. 9.5 Assignment. No Party may assign any rights under this Agreement or delegate any duties hereunder without the prior written consent of the other Party. 9.6 Independent Contractors. The relationship between ArTara and the University created by this Agreement shall be one of an independent contractor and no Party shall have the authority to bind or act as agent for the other Party. 9.7 Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior agreements and understandings between the Parties (whether written or verbal) relating to said subject matter. 9.8 Severability. Whenever possible each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law but should any provision of this Agreement be held to be prohibited or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of this Agreement. However, if such provision is deemed significant and its invalidity would substantially alter the basis of this Agreement, the Parties will negotiate in good faith to amend the provisions of this Agreement to give effect to the original intent of the parties. 9.9 Waiver. No provision of this Agreement shall be waived by any act or omission of the Parties or their agents or employees except by an instrument in writing expressly waiving such provision and signed by a duly authorized officer of the waiving Party. 9.10 Counterparts. This Agreement may be signed in any number of counterparts, including in PDF format, each of which shall be an original, with the same effect as though the signatures hereto and thereto were on the same instrument. 9.11 Section Headings. The recitals and descriptive headings of this Agreement are for convenience only and shall be of no force or effect in interpreting any of the provisions of this Agreement.
+
+13
+
+Source: ARTARA THERAPEUTICS, INC., 8-K, 1/10/2020
+
+
+
+
+
+IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed by an authorized official as of the day and year first above written. ARTARA THERAPEUTICS, INC. /s/ Jesse Shefferman By: Jesse Shefferman Title: Chief Executive Officer THE UNIVERSITY OF IOWA /s/ Wendy Beaver By: Wendy Beaver Title: Executive Director, Division of Sponsored Programs READ & ACKNOWLEDGED BY PRINCIPAL INVESTIGATOR /s/ Richard Smith By: Richard Smith, M.D. Title: Professor of Otolaryngology Head and Neck Surgery
+
+14
+
+Source: ARTARA THERAPEUTICS, INC., 8-K, 1/10/2020
+
+
+
+
+
+EXHIBIT A
+
+PROGRAM DATA […***…]
+
+15
+
+Source: ARTARA THERAPEUTICS, INC., 8-K, 1/10/2020

full_contract_txt/AudibleInc_20001113_10-Q_EX-10.32_2599586_EX-10.32_Co-Branding Agreement_ Marketing Agreement_ Investment Distribution Agreement.txt

@@ -0,0 +1,499 @@
+EXHIBIT 10.32
+
+               CO-BRANDING, MARKETING AND DISTRIBUTION AGREEMENT
+
+     This Agreement, dated as of January 30, 2000 ("Effective Date"), is made and entered into by and between Amazon.com Commerce Services, Inc., a Delaware corporation ("ACSI"), and Audible Inc. a Delaware corporation ("Company").  ACSI and Company are sometimes referred to collectively herein as the "Parties" and individually as a "Party."  ACSI and Company agree as follows:
+
+Section 1.  Definitions
+
+     Whenever used in this Agreement with initial letters capitalized, the following terms shall have the following specified meanings:
+
+     "ACSI Competitor" means, collectively, such persons and entities as the Parties may agree upon from time to time.  ACSI may update any agreed-upon list of ACSI Competitors no more frequently than once per quarter by written notice, provided that: (a) the number of entities specified on such list shall at no time [***]; (b) any entities added to such list must be [***]; and (c) no addition of any ACSI Competitor to such list shall require Company to breach any contractual or legal obligation to such ACSI Competitor by which Company is bound as of the date of such addition.
+
+     "ACSI Derivative Work" means any Derivative Work (whether created by ACSI, Company, or the Parties jointly) of any ACSI Existing Intellectual Property or ACSI Future Intellectual Property.
+
+     "ACSI Existing Intellectual Property" means, collectively, all of the following existing as of the Effective Date: (a) the Trademarks of ACSI and its Affiliates; and (b) the ACSI Site, including, without limitation, any and all content, data, URLs, domain names, technology, software, code, user interfaces, "look and feel", ACSI Site Functionality, Trademarks and other items posted thereon or used in connection or associated with any of the foregoing.
+
+     "ACSI Future Intellectual Property" means, collectively, all of the following which are invented, created, developed or first reduced to practice by ACSI or its Affiliates after the Effective Date without the participation of Company or its Affiliates: (a) any Trademarks; and (b) any content, data, URLs, domain names, technology, software, code, user interfaces, "look and feel," ACSI Site Functionality and other items (but excluding any Company Derivative Works).
+
+     "ACSI Intellectual Property" means, collectively, any ACSI Existing Intellectual Property, ACSI Future Intellectual Property and ACSI Derivative Works, but excluding any Joint Works.
+
+--------------- ***Confidential Information has been omitted and has been filed separately with the Securities and Exchange Commission.
+
+                                      -1-
+
+     "ACSI Product Section" means a discrete group of products available on the ACSI Site which is identified by a tab or other top-level product category identifier on the ACSI Site Home Page, but excluding: (a) the ACSI Site Home Page itself; and (b) any mechanisms, areas or services on or through which third parties may sell products through the ACSI Site in connection with ACSI's and its Affiliates' programmatic selling initiatives (including, without limitation, the existing "Auctions", "zShops", "Sothebys.amazon.com" and "Amazon.com Advantage" areas and services of the ACSI Site, and any successors or replacements to any of them).
+
+     "ACSI Product Sub-Section" means a discrete sub-set of products in any ACSI Product Section which is accessible by following or using a browse tree or hypertext links on the ACSI Site, and is identified by a permanent product category description on the ACSI Site  (e.g., as opposed to a description generated in response to a user search query), but is not identified by a tab or other top-level product category identifier on the ACSI Site Home Page (e.g., as of the Effective Date, the "business & investing" or "audio books" sub-set of products included in, and accessible through the browse tree of, the ACSI Product Section identified by the "Books" tab on the ACSI Home Page (the "Books Product Section")).
+
+     "ACSI Site" means that Web Site, the primary Home Page of which is identified by the URL www.amazon.com (and any successor or replacement Web                       -------------- Site).  For the avoidance of doubt, the "ACSI Site" does not include any other Web Sites maintained by or for ACSI or its Affiliates (including, without limitation, those Web Sites, the primary Home Pages of which are identified by the URL's www.amazon.co.uk and www.amazon.de).           ----------------     -------------
+
+     "ACSI Site Functionality" means, collectively: (a) tab, search and browse functionality available to users of the ACSI Site for navigating through ACSI Product Sections (including, without limitation, the layout and design thereof); (b) payment and transaction functionality available to users of the ACSI Site for purchasing products (including, without limitation, "shopping cart" and "Payment with 1-Click" functionality), (c) any other functionality available on the ACSI Site which ACSI may make available to Company from time to time, and (d) any future equivalents, improvements and enhancements of any of the foregoing.
+
+     "Affiliate" means, with respect to any person or entity (including either Party), any other person or entity that directly or indirectly controls, is controlled by or is under common control with that person or entity, or which that person or entity beneficially owns at least fifty percent (50%) of the equity interests therein (provided, however, that with respect to the Parties, no individual or entity as to which the ultimate parent entity of a Party does not directly or indirectly control the operations or management thereof (e.g., in the case of ACSI as of the date of this Agreement, Gear.com, Inc.) shall be deemed to be an Affiliate of such Party for purposes of this Agreement).
+
+     "Annual Fee" means the sum of [***], representing the fixed fee payable by Company to ACSI with respect to each Year.
+
+---------------
+
+Source: AUDIBLE INC, 10-Q, 11/13/2000
+
+
+
+
+
+***Confidential Information has been omitted and has been filed separately with the Securities and Exchange Commission.
+
+                                      -2-
+
+     "Change of Control" means, with respect to Company, a transaction or series of related transactions that results in (a) a sale of all or substantially all of the assets of Company, (b) the transfer of fifty percent (50%) or more of the outstanding voting power of Company (other than directly or indirectly to a parent or wholly-owned subsidiary of Company), or (c) the acquisition by a person or entity, by reason of any contractual arrangement or understanding with one or more persons or entities, of the right or power to appoint or cause to be appointed a majority of the directors or officers of Company.
+
+     "Claim" means any claim, action or proceeding instituted by a third party (other than an Affiliate of a Party), including, without limitation, any governmental authority.
+
+     "Closing" means the consummation of the purchase of common stock of Company pursuant to the Securities Purchase Agreement between ACSI and Company dated on or about the Effective Date (the "Securities Purchase Agreement").
+
+     "Company Derivative Work" means any Derivative Work (whether created by ACSI, Company, or the Parties jointly) of any Company Existing Intellectual Property or Company Future Intellectual Property.
+
+     "Company Existing Intellectual Property" means, collectively, all of the following existing as of the Effective Date: (a) the Trademarks of Company and its Affiliates; (b) the Company Site, including, without limitation, any and all content, data, URLs, domain names, technology, software, code, user interfaces, "look and feel," Trademarks and other items posted thereon or used in connection or associated with any of the foregoing
+
+     "Company Future Intellectual Property" means, collectively, all of the following which are invented, created, developed or first reduced to practice by Company or its Affiliates after the Effective Date without the participation of ACSI or its Affiliates: (a) any Trademarks; and (b) any content, data, URLs, domain names, technology, software, code, user interfaces, "look and feel" or other items (but excluding any ACSI Derivative Works).
+
+     "Company Intellectual Property" means, collectively, any Company Existing Intellectual Property, Company Future Intellectual Property, and Company Derivative Works, but excluding any Joint Works.
+
+     "Company Site" means, collectively: (a) that Web Site, the primary Home Page for which is identified by the URL www.audible.com (and any successor or replacement Web Site); and (b) any other Web Sites operated by or for Company or its Affiliates from time to time (excluding the Mirror Company Site) through which Spoken-Word Audio Products are sold or offered for sale.
+
+     "Confidential Information" means, with respect to either Party, all information relating to such Party or its Affiliates that is designated as confidential or that, given the nature of the information or the circumstances surrounding its disclosure, reasonably should
+
+                                      -3-
+
+be considered as confidential. Confidential Information includes, without limitation, (a) all information relating to a Party's or its Affiliates' technology, customers, business plans, promotional and marketing activities, finances and other business affairs; (b) all third party information that a Party or its Affiliates is obligated to keep confidential; and (c) the terms of this Agreement. Confidential Information may be contained in tangible materials, such as drawings, data, specifications, reports and computer programs, or may be in the nature of unwritten knowledge. Confidential Information does not include any information that (i) has become publicly available without breach of this Agreement, (ii) can be shown by documentation to have been known to the Receiving Party at the time of its receipt from the Disclosing Party or its Affiliates without a breach of confidentiality or other improper means, (iii) is received from a third party who did not acquire or disclose such information by a wrongful or tortious act or (iv) can be shown by documentation to have been independently developed by the Receiving Party without reference to any Confidential Information.
+
+     "Derivative Work" means any adaptation, modification, enhancement, improvement or derivative work.
+
+     "Disclosing Party" means a Party that discloses Confidential Information to the other Party in connection with this Agreement.
+
+     "Exclusive Spoken-Word Audio Products" means: (a) spoken-word audio-only products, in a format suitable for digital download and/or streaming, [***]
+
+     "Existing ACSI Product Section" means any ACSI Product Section identified on the ACSI Site Home Page as of the Effective Date, as shown in the screen shot attached as Exhibit A.
+
+     "Home Page" means, with respect to a Web Site or section of a Web Site (e.g., any section of the ACSI Site primarily related to an ACSI Product Section or ACSI Product Sub-Section), the Web page designated by the operator of the Web Site as the initial and primary end user interface for such Web Site or section of a Web Site.
+
+     "Internet Radio Service" means a service through which users may receive interactive or other broadcasts via the Internet or other public or private data networks.
+
+     "Joint Work" means any content, data, URLs, domain names, technology, software, code, user interfaces, "look and feel" or other items which are invented, created, developed or first reduced to practice jointly by the Parties after the Effective Date, are protected or protectable by any Intellectual Property Rights and either: (a) include or incorporate both ACSI Existing Intellectual Property, ACSI Future Intellectual Property and/or ACSI Derivative Works, on the one hand, and/or Company Existing Intellectual Property, Company Future Intellectual Property and/or Company Derivative Works, on the other hand; or (b) include or incorporate no ACSI Existing Intellectual Property or ACSI
+
+Source: AUDIBLE INC, 10-Q, 11/13/2000
+
+
+
+
+
+Derivative Works, on the one hand, or Company Existing Intellectual Property or Company Derivative Works, on the other hand; provided, however, that notwithstanding any other provision of this Agreement, to the extent that any such items incorporate in whole or in part any ACSI
+
+--------------- ***Confidential Information has been omitted and has been filed separately with the Securities and Exchange Commission.
+
+                                      -4-
+
+Site Functionality or technology, software, code, user interfaces or "look and feel" related thereto or incorporated therein, such items shall be deemed ACSI Derivative Works in their entirety and not Joint Works or Company Intellectual Property.
+
+     "Incentive Offer" means either (a) a discount in the purchase price of Spoken-Word Audio Products offered for sale from or through the Spoken-Word Audio Sub-Section or (b) an equivalent benefit upon purchase of a Spoken-Word Audio Product from or through the Spoken-Word Audio Sub-Section.
+
+     "Intellectual Property Right" means any patent, copyright, trademark, trade dress, trade name or trade secret right and any other intellectual property or proprietary right.
+
+     "Launch Date" means the date on which the Parties mutually agree to launch the Spoken-Word Audio Sub-Section, but in any event no later than 90 days after the Effective Date.
+
+     "Law" means any law, ordinance, rule, regulation, order, license, permit and other requirement, now or hereafter in effect, of any governmental authority of competent jurisdiction.
+
+     "Mirror Company Site" means a "mirrored" version of that Web Site, the primary Home Page for which is identified by the URL www.audible.com (and any successor or replacement Web Site).  The primary home page of the Mirror Company Site shall be identified by the URL www.amazon.audible.com (or such other URL as                                     ---------------------- the Parties may agree upon).
+
+     "Proration Percentage" means, as of any date within the Refund Period, the following quantity, expressed as a percentage: (a) one (1); minus (b) the sum of: (i) the number of days of the Refund Period which have elapsed prior to such date; divided by (ii) the total number of days in the Refund Period.
+
+     "Non-Exclusive Spoken-Word Audio Products" means spoken-word audio-only products, in a format suitable for digital download and/or streaming (excluding Exclusive Spoken-Word Audio Products and Related Products), [***]
+
+     "Receiving Party" means a Party that receives Confidential Information from the other Party in connection with this Agreement.
+
+     "Referral Information" means any information disclosing that a specific end-user traveled from the ACSI Site to the Mirror Company Site or purchased any products through the Spoken-Word Audio Sub-Section (however obtained), or other personally-identifying information regarding users of the ACSI Site (including the Spoken-Word Audio Sub-Section).
+
+--------------- ***Confidential Information has been omitted and has been filed separately with the Securities and Exchange Commission.
+
+                                      -5-
+
+     "Refund Period" means the period of time from the date upon which Company makes the payment called for by Section 5.2.1  [Annual Fees] (or is deemed to have made such payment pursuant to Section 5.3  [Waiver of Payment Obligations]) until the end of Year 2.
+
+     "Related Products" means: [***]
+
+     "Site" means either the ACSI Site, on the one hand, or the Mirror Company Site and Company Site collectively, on the other hand, as required by the context.
+
+     "Spoken-Word Audio Products" means, collectively, Exclusive Spoken-Word Audio Products, Related Products and Non-Exclusive Spoken-Word Audio Products.
+
+     "Spoken-Word Audio Sub-Section" means an ACSI Product Sub-Section, to be created pursuant to this Agreement, featuring Spoken-Word Audio Products (but subject to Section 9.2 with respect to Related Products) and which shall be identified on the ACSI Site by such heading as the Parties may agree upon.
+
+     "Term" means the term of this Agreement as defined in Section 10.
+
+     "Trademark" means any trademark, service mark, trade name, trade dress, proprietary logo or insignia or other source or business identifier.
+
+     "Web Site" means any point of presence maintained on the Internet or on any other public or private data network.  With respect to any Web Site maintained on the World Wide Web or any successor public data network, such Web Site includes all HTML pages (or similar unit of information presented in any relevant data protocol) that either (a) are identified by the same second-level domain (such as http://www.amazon.com) or by the same equivalent level identifier in any relevant address scheme, or (b) contain branding, graphics, navigation or other characteristics such that a user reasonably would conclude that the pages are part of an integrated information or service offering.
+
+     "Year" means any period of twelve (12) consecutive months commencing on the Effective Date.
+
+Section 2.  Spoken-Word Audio Sub-Section and Mirror Company Site
+
+     2.1  Spoken-Word Audio Sub-Section.  Pursuant to the implementation procedures set forth in Section 4, ACSI will establish and, upon and following the Launch Date, maintain (or cause one of its Affiliates to maintain) on the ACSI Site during the Term
+
+Source: AUDIBLE INC, 10-Q, 11/13/2000
+
+
+
+
+
+-------- *** Confidential Information has been omitted and has been filed separately with     the Securities and Exchange Commission.
+
+                                      -6-
+
+the Spoken-Word Audio Sub-Section. In order to provide a harmonious and consistent user experience, the presentation, format, functionality and operation of the Spoken-Word Audio Sub-Section shall be generally consistent with that of other similar ACSI Product Sub-Sections (including, without limitation, by incorporating category headings and other navigational aids for specific types of Spoken-Word Audio Products offered by Company), except that ACSI will include prominent branding for Company where appropriate on pages of the Spoken-Word Audio Sub-Section. Subject to the foregoing and to Section 6, ACSI will determine the content, appearance, functionality and all aspects of the ACSI Site (including the Spoken-Word Audio Sub-Section) [***]
+
+     2.2  Certain Company Obligations.  As of and following the Launch Date, Company will (a) maintain the Mirror Company Site, [***], (b) ensure that every page of the Mirror Company Site displays prominent, above-the-fold, graphical hypertext links (to be designed by ACSI and subject to Company's prior approval, which shall not be unreasonably withheld or delayed) which, when clicked, return the user to the ACSI Site, together with such other branding and Trademarks of ACSI as ACSI and Company may agree upon to be appropriate (provided, that if the Parties cannot agree upon such branding and Trademarks, notwithstanding any other provision of this Agreement, ACSI shall have no obligation to establish or maintain the Spoken-Word Audio Sub-Section until such time as the Parties have agreed upon the same; and provided further, that any disagreement shall be subject to the escalation procedure specified in Section 2.8  [Escalation of Certain Disputes] below), (c) ensure that the Mirror Company Site does not contain links to any Web Site other than the ACSI Site (including, without limitation, to the Company Site), (d) ensure that substantially all Spoken-Word Audio Products (and any other products approved by ACSI) available through the Company Site are available through the Spoken-Word Audio Sub-Section (but subject to Section 9.2 with respect to Related Products), (e) [***], and (f) [***].  Subject to the foregoing, Company shall have the right to limit the number of promotional incentives (e.g. free give-aways, low-cost promotional offers and the like) that are offered through the Spoken-Word Audio Sub-Section based upon the volume of traffic if such volume were to place Company in commercially untenable position as solely determined by Company.  Unless otherwise agreed by the Parties in writing, Company will be solely responsible for all pricing, delivery and fulfillment of any products, including Spoken-Word Audio Products offered by Company on or through the Spoken-Word Audio Sub-Section (including the Mirror Company Site).
+
+     2.3  [***].
+
+     2.4  Technical Standards; Customer Service.  Company will at all times comply with the technical and customer service requirements and Site standards (including, without limitation, user privacy policies and customer guarantees) to be agreed upon by the Parties within forty-five (45) days after the Effective Date and attached hereto as Exhibit B.  Any dispute arising related to the creation of such requirements and standards shall be subject to the escalation procedure specified in Section 2.8  [Escalation of Certain Disputes] below.  Without limiting the generality of the foregoing Company will: (a) at all times conduct its dealings with users of the Spoken-Word Audio Sub-Section in a professional and courteous manner which reflects favorably upon ACSI and its Affiliates and the ACSI Site; and (b) in any event ensure that the customer
+
+--------------- ***Confidential Information has been omitted and has been filed separately with the Securities and Exchange Commission.
+
+                                      -7-
+
+service provided to users of the Spoken-Word Audio Sub-Section (including, without limitation, in regard to product fulfillment and responsiveness to customer inquiries) is of as high a standard as is commercially reasonably possible and as good or better than that generally provided by any other online seller of Spoken-Word Audio Products in a format suitable for digital download.
+
+     2.5  Referral Information.  Company will not disclose any Referral Information to any third party (except for third parties acting directly on behalf of Company in connection with Company's internal business and who have agreed in writing to maintain the same in confidence), or use or permit any third party to use any Referral Information to target communications specifically to users of the ACSI Site, primarily on the basis of such persons' being users of the ACSI Site, without ACSI's prior written consent (provided, however, that nothing in the foregoing shall prohibit Company from contacting its own customers generally (including contacting users of the ACSI Site as part of any such general contacts) or prohibit Company from using non-personal statistical information regarding such users in the aggregate for any purpose without ACSI's consent).  [***]
+
+     2.6  ACSI Site Re-Design.  Notwithstanding any other provision of this Agreement, nothing in this Agreement shall limit ACSI's and its Affiliates' ability to re-design or modify the appearance, content and functionality of the ACSI Site (including any ACSI Product Section, ACSI Product Sub-Section, or any Home Pages); provided, however, that in the event that ACSI and/or its Affiliates redesign or revise the ACSI Site or any ACSI Product Section, the treatment of the Spoken-Word Audio Sub-Section in connection with such re-design or revision will be substantially similar to and consistent with the treatment of other ACSI Product Sub-Sections on the ACSI Site.
+
+     2.7  Traffic Data.  Throughout the Term, on a monthly basis, Company will provide ACSI all relevant data requested from time to time by ACSI concerning behavior on the Mirror Company Site, to the extent such behavior reasonably relates to the online promotion or sale of products sold through the ACSI Site and/or Mirror Company Site and such data is reasonably available.  ACSI and its Affiliates will hold such data in confidence and will not use it except in connection with their marketing efforts or as otherwise may be  agreed by Company in writing.  Notwithstanding anything contained in this Section 2.7  [Traffic Data], Company will not be required to deliver to ACSI any user data in contravention of any applicable Law or Company's privacy policy (provided, that if Company modifies its privacy policy, Company shall revise the same in a manner which provides it the maximum legally permissible flexibility to provide the data
+
+Source: AUDIBLE INC, 10-Q, 11/13/2000
+
+
+
+
+
+specified in this Section 2.7  [Traffic Data] to ACSI).
+
+     2.8  Escalation of Certain Disputes.  If any dispute arises relating to the matters described in Section 2.2(b)  [Certain Company Obligations], Section 2.4  [Technical Standards; Customer Service] or Section 4.1.3 of this Agreement, and the Parties are unable to resolve the dispute in the ordinary course of business, the Parties will use good-faith efforts to resolve the matter in accordance with this Section 2.8  [Escalation of Certain Disputes].  Within three (3) days
+
+--------------- ***Confidential Information has been omitted and has been filed separately with the Securities and Exchange Commission.
+
+                                      -8-
+
+following the written request of either Party (which will describe the nature of the dispute and other relevant information), the Parties' managers who are responsible for the ACSI/Company relationship will meet to resolve the dispute at a mutually convenient time and place.  If the relationship managers are unable to resolve the dispute within two (2) days following their initial meeting, they will refer the matter to the Parties' divisional executives who are responsible for the administration of this Agreement, along with a written statement (or statements) describing the nature of the dispute and other relevant information.  Within three (3) days following the referral of the matter to the Parties' divisional executives, the divisional executives will meet to resolve the dispute at a mutually convenient time and place.  Additional representatives of the Parties (but not their relationship managers) may be present at the meeting.  If the divisional executives are unable to resolve the dispute within two (2) days following their initial meeting, they will refer the matter to the Parties' Presidents, along with a written statement (or statements) describing the nature of the dispute and other relevant information. Within three (3) days following the referral of the matter to the Parties' Presidents (or equivalent officers), the Presidents will meet to resolve the dispute at a mutually convenient time and place.  Additional representatives of the Parties (but not their relationship managers or divisional executives) may be present at the meeting.  If the Presidents are unable to resolve the dispute within two (2) days following their initial meeting (or such later date as they may agree), the Parties will be free to exercise such rights and remedies as may be available to them at law or in equity. Any resolution of any dispute reached under this Section 2.8  [Escalation of Certain Disputes] will be reduced to writing and signed by the Parties. During any dispute resolution procedure conducted under this Section, the Parties will diligently perform all obligations hereunder that are not directly related to the dispute.
+
+Section 3.  Promotional Activities
+
+     3.1    Press Releases. The Parties will issue a joint press release promptly upon concluding Advertising. this Agreement, which press release shall be subject to the Party's mutual approval, which shall in any event state that Company is the exclusive provider on the ACSI Site of premium spoken-word audio product for download or streaming over the world wide web. The Parties shall have the right to issue mutually agreeable additional press releases describing the nature of their relationship at such times as the Parties shall mutually agree. Neither Party will issue any other press releases, make any other disclosures regarding this Agreement or its terms or the relationship between the Parties, or use the other Party's Trademarks (except as permitted by Section 6), without the other Party's prior written consent, except that, each Party may, without the other Party's prior consent: (y) distribute or issue public relations materials or press releases that contain a description of the relationship between the Parties, provided that such description has been approved in advance by such other Party (which approval shall not be unreasonably withheld or delayed); and (z) speak in public regarding disclosures made pursuant to the first sentence of this Section 3.1  [Press Releases]. Parties will be able to include a description of this strategic partnership in the "company descriptor" section of standard releases, subject to initial mutual approvals.
+
+                                      -9-
+
+3.2  Advertising
+
+     3.2.1  Amazon.com Customer Base.   During each Year of the Term following the Launch Date, ACSI (or one of its Affiliates) will deliver Amazon.com-branded e-mails and Amazon.com-branded in-product advertising materials related to the Spoken-Word Audio Sub-Section to selected members of the Amazon.com customer base in at least the following quantities:
+
+---------------------------------------------------------------------------------------------             Year                           Email                      Product Shipment -----------------------------    --------------------------    ------------------------------ ---------------------------------------------------------------------------------------------                                                                        1                            [***]                            [***] ---------------------------------------------------------------------------------------------              2                            [***]                            [***] ---------------------------------------------------------------------------------------------              3                            [***]                            [***] ---------------------------------------------------------------------------------------------
+
+     The Parties shall mutually agree on the nature of such advertising; [***]. With respect to all email advertising, ASCI and Company shall pre-test and plan such advertising in a manner generally consistent with the pre-testing and planning conducted by ACSI and its Affiliates with respect to advertising for other ACSI Product Sub-Sections, with the goal of achieving maximum commercial effectiveness for such advertisements (including, without limitation, by attempting to spread out such advertising in order to not unnecessarily "bunch" the same).  [***]
+
+     3.2.2  Customer Subscription Emails.   [***]
+
+     3.2.3  Company.  [***]
+
+     3.3    Certain Covenants.  [***]
+
+Source: AUDIBLE INC, 10-Q, 11/13/2000
+
+
+
+
+
+Section 4.  Implementation
+
+     4.1    Spoken-Word Audio Sub-Section and Mirror Company Site.
+
+            4.1.1  Generally. During the Term, the Parties will cooperate in good faith and use commercially reasonable efforts to provide a seamless customer experience of full interactivity between the Spoken-Word Audio Sub- Section and the Mirror Company Site. The Parties anticipate that the activities contemplated by this Section 4.1.1  [Generally] will be performed in two phases, as set forth in Section 4.1.2  [Implementation] and Section 4.1.3  [Phase II] below.
+
+            4.1.2  Phase I.  Between the Effective Date and the Launch Date, the Parties shall perform such work as may be necessary to develop the Spoken-Word Audio Sub-Section (in the case of ACSI) and the Mirror Company Site (in the case of Company).  Upon the Launch Date, ACSI will establish the Spoken-Word Audio Sub-Section under the browse tree (or equivalent navigation structure) of the Books Product Section, and Company will establish the Mirror Site.  The Spoken- Word Audio Sub-Section will contain, among such
+
+--------------- ***Confidential Information has been omitted and has been filed separately with the Securities and Exchange Commission.
+
+                                     -10-
+
+other content as may be contained therein pursuant to Section 2.1  [Spoken-Word Audio Sub-Section], multiple hypertext links that will allow users to navigate directly to the Mirror Company Site.
+
+          4.1.3  Phase II. [***], the Parties shall have fully integrated the ACSI Site Functionality into the Mirror Company Site pursuant to specifications and schedules (the "Phase II Development Plan") that shall be developed by ACSI in consultation with Company, which specification and schedules shall be attached hereto as Exhibit C, [***].  Any dispute arising related to the creation of the Phase II Development Plan shall be subject to the escalation procedure specified in Section 2.8  [Escalation of Certain Disputes].Without limiting the generality of the foregoing, ACSI and Company will cooperate to implement ACSI Site Functionality for the Spoken-Word Audio Sub-Section (including the Mirror Company Site) in a manner consistent with the ACSI Site Functionality provided in other ACSI Product Sub-Sections, and Company and ACSI will use commercially reasonable efforts to perform, in a timely and professional manner, all technical work necessary to seamlessly integrate the ACSI Site Functionality into the Mirror Company Site, in accordance with the Phase II Development Plan.
+
+          4.1.4  Tax Matters.  [***]
+
+     4.2  ACSI Site Links.  Upon the Launch Date, ACSI will post permanent and/or rotating links to the Home Page of the Spoken-Word Audio Sub-Section on relevant pages of the ACSI Site in a manner substantially similar to and generally consistent with the posting of links to other similar ACSI Product Sub-Sections (e.g., as of the Effective Date, the ACSI Product Sub-Section identified as "Audiobooks").  [***]
+
+     The Parties shall consult together in connection with the specific nature, prominence and positioning of the links posted on the ACSI Site pursuant to this Section 4.2  [ACSI Site Links]; [***].
+
+     4.3  Account Managers.  Each Party will assign an account manager (which manager shall be subject to change from time to time by the assigning Party) to oversee the performance of such Party's obligations under this Agreement and to facilitate coordination of the Parties' performance of their respective obligations (including, without limitation, the establishment of the Spoken-Word Audio Sub-Section, the creation of the Co-Branded Pages, the integration of the ACSI Site Functionality with the Mirror Company Site, and the advertising activities contemplated in Section 3).  The account managers will meet from time to time during the Term to review the implementation of this Agreement and to explore methods for improving performance.
+
+     4.4  Regulatory Compliance
+
+          4.4.1  Company will comply, and will ensure that the Mirror Company Site, the Spoken-Word Audio Products and all other activities undertaken through or in connection with the Mirror Company Site and this Agreement (including, without limitation, the participation of ACSI and its Affiliates as contemplated by this Agreement) comply with all applicable Laws.
+
+--------------- ***Confidential Information has been omitted and has been filed separately with the Securities and Exchange Commission.                                      -11-
+
+          4.4.2  Company will provide reasonable assistance to ACSI and ACSI's Affiliates in all regulatory compliance activities required in connection with the advertising, operation, maintenance and sale of Spoken-Word Audio Products on and through the Spoken-Word Audio Sub-Section, including, but not necessarily limited to, assisting ACSI in identifying, obtaining and maintaining in force any and all licenses and permits necessary for ACSI and its Affiliates in connection with any of the foregoing.  In connection with the foregoing regulatory compliance activities, Company will reimburse ACSI for any reasonable costs (including legal costs) incurred by ACSI or its Affiliates in connection with identifying and obtaining any and all such licenses and permits. Notwithstanding the foregoing, ACSI acknowledges and agrees that Company shall have no obligation to assist ACSI in any regulatory compliance activities related to, or reimburse ACSI for any costs incurred by ACSI or its Affiliates in connection with identifying or obtaining any licenses or permits required in connection with, any advertising, operation, maintenance or sale of Spoken-Word Audio Products or other products sold by ACSI or its Affiliates independently through the ACSI Site without the participation of Company.
+
+       4.5  Staffing. Each Party will dedicate during the Term the appropriate resources and personnel necessary for establishment of the Spoken-Word Audio Sub-Section, the integration of the ACSI Site Functionality into the Mirror Company Site and the performance of its other obligations under this Agreement. Each Party's designated employees will be subject to change from time to time by such Party in its sole discretion and promptly upon such change such Party shall
+
+Source: AUDIBLE INC, 10-Q, 11/13/2000
+
+
+
+
+
+notify the other Party.
+
+Section 5.  Compensation
+
+       5.1  In consideration of the intangible rights granted and services to be performed by ACSI during the Term, Company will pay ACSI the consideration specified in this Section.
+
+       5.2  Annual Fees.
+
+            5.2.1  Upon the Closing, subject to Section 5.3  [Waiver of Payment Obligations], Company will pay ACSI via wire transfer the sum of [***] (the "Company Closing Payment"), representing payment of the Annual Fee for the first Year of the Term and a pre- payment of the Annual Fee for the second Year of the Term.
+
+            5.2.2  On the first day of Year 3, Company will pay ACSI via wire transfer the sum of [***], representing the Annual Fee payable with respect to Year 3; provided, however, that if ACSI so elects by written notice delivered to Company at least ten (10) days prior to the end of Year 2, Company shall instead issue at the beginning of Year 3 to ACSI  (or such of its Affiliates as it may designate) shares of common stock of Company (or any publicly-traded Affiliate thereof) with a then-current fair market value equal to [***] as of the date of such written notice (the "Year 3 Shares").
+
+     5.3    Waiver of Payment Obligations.  At the Closing, the Company Closing Payments due to ACSI pursuant to Section 5.2.1  [Annual Fees] hereof and the Shares Consideration (as defined in the Securities Purchase Agreement) due to the Company pursuant to Section 1.2 of
+
+--------------- ***Confidential Information has been omitted and has been filed separately with the Securities and Exchange Commission.                                      -12-
+
+the Securities Purchase Agreement, which amounts are identical, shall offset each other solely for the purpose of determining the actual fund transfers required at Closing. ASCI acknowledges and agrees that the entire amount of the Company Closing Payments shall be deemed paid and received upon the issuance of the Common Stock (as defined in the Securities Purchase Agreement).
+
+     5.4  Royalties.  In consideration for the intangible rights granted hereunder, for each Year in which the Spoken-Word Audio Sub-Section (including the Mirror Company Site) generates revenue of at [***] (the "Revenue Threshold"), Company will pay ACSI a royalty equal to [***] of all revenues generated from the Spoken-Word Audio Sub-Section (including, for the avoidance of doubt, any revenue received by Company from any Company customer who first links to the Mirror Company Site from the Spoken-Word Audio Sub-Section and who later accesses the Company Site directly) in excess of Revenue Threshold (the "Royalties") for each Year of the Term.  Company will pay ACSI any Royalties payable pursuant to this Section 5.4  [Royalties] on an annual basis, in arrears, as follows: within thirty (30) days after the end of each Year as to which any Royalties are payable, Company will remit to ACSI the Royalties payable with respect to such Year, together with a report specifying in reasonable detail: (a) the gross revenue generated by the Spoken-Word Audio Sub-Section; and (b) Company's calculation of the  Royalties.
+
+     5.5  Overdue Payments.  Payments called for by this Section 5 which are not received within five (5) business days after the date upon which payment is due will bear interest at a rate equal to the lesser of one and one-half percent (1- 1/2%) per month or the maximum legal rate permitted under the controlling Laws. Payment of such interest shall not cure or excuse any breach of any underlying payment obligation.
+
+     5.6  Allocation of Payments.  The Parties acknowledge and agree that the Annual Fees shall be allocated as consideration for advertising services and intangible rights granted by ACSI to Company hereunder, including the rights granted under Section 2.1  [Spoken-Word Audio Sub-Section] and Section 4.2  [ACSI Site Links] and the licenses granted to Company under Section 6, as follows:
+
+             Year                    Advertising Services             Intangible Rights ----------------------------------------------------------------------------------------------                                                                               1                             [***]                           [***] ----------------------------------------------------------------------------------------------               2                             [***]                           [***] ----------------------------------------------------------------------------------------------               3                             [***]                           [***] ----------------------------------------------------------------------------------------------
+
+--------------- ***Confidential Information has been omitted and has been filed separately with the Securities and Exchange Commission.
+
+                                     -13-
+
+Section 6.  Proprietary Rights
+
+      6.1   Ownership.
+
+            6.1.1  As between the Parties, ACSI reserves all right, title and interest in and to the ACSI Intellectual Property, along with all Intellectual Property Rights associated therewith and no title to or ownership of any of the foregoing is transferred or, except as expressly set forth in Section 6.2  [ACSI License], licensed to Company or any other person or entity pursuant to this Agreement.
+
+            6.1.2  As between the Parties, Company reserves all right, title and interest in and to the Company Intellectual Property, along with all Intellectual Property Rights associated therewith and no title to or ownership of any of the foregoing is transferred or, except as expressly set forth in Section 6.3  [Company License], licensed to ACSI or any other person or entity pursuant to this Agreement.
+
+Source: AUDIBLE INC, 10-Q, 11/13/2000
+
+
+
+
+
+            6.1.3  To the maximum extent permitted by applicable Laws, any ACSI Derivative Works or Company Derivative Works, to the extent created by or for the other Party, shall be deemed "works made for hire", and all right, title and interest therein shall vest in ACSI (in the case of ACSI Derivative Works) or Company (in the case of Company Derivative Works) immediately upon creation thereof. To the extent that any such ACSI Derivative Works or Company Derivative Works are not "works made for hire", Company hereby assigns and agrees to assign to ACSI (or such of its Affiliates as it may designate) all right, title and interest to all ACSI Derivative Works and all associated Intellectual Property Rights, and ACSI hereby assigns and agrees to assign to Company (or such of its Affiliates as it may designate) all right, title and interest in and to all Company Derivative Works and all associated Intellectual Property Rights. Each Party shall take, at the other Party's expense, any actions (including, without limitation, execution and delivery of affidavits and other documents) reasonably requested by such other Party to effect, perfect or confirm its or its designee's ownership rights as set forth in this Section 6.1.3  [Ownership].
+
+            6.1.4  To the extent that any Joint Works are created in the course of performance of this Agreement, each Party shall own a joint, equal and undivided ownership interest in and to such Joint Works and the associated Intellectual Property Rights, with no duty on the part of either Party to account to the other with respect to its use and exploitation of the same. Each Party shall own all right, title and interest in and to any Derivative Works of any Joint Works created by or for such Party and all Intellectual Property Rights associated therewith (to the extent not also associated with the Joint Works). Without limiting the generality of the foregoing, either Party may, without any duty to account to the other (including, without limitation, any duty to pay, share or account for any royalties):
+
+          (a) make, manufacture, assemble, produce, market, sell, distribute,      transfer, use, license and otherwise commercially and non-commercially      exploit and deal with the Joint Works; provided, that neither Party shall      seek or obtain any
+
+                                     -14-
+
+     registration of any Intellectual Property Rights associated with the Joint      Works without the other Party's prior written consent;
+
+          (b) make, manufacture, assemble, produce, market, sell, distribute,      transfer, use, license, seek and obtain registrations of Intellectual      Property Rights (subject to paragraph (a) above) and otherwise commercially      and non-commercially exploit and deal with Derivative Works of any Joint      Works created by or for such Party, whether or not competitive with any      items created by or for the other Party; and
+
+          (c) authorize any third party to take any action described in (a) or      (b) above.
+
+     6.2  ACSI License.  ACSI hereby grants to Company, during the Term, a non- exclusive, non-transferable (except in accordance with Section 11.7  [Assignment]) license, which Company may sublicense only to its Affiliates, to use the ACSI Intellectual Property supplied by ACSI to Company as is reasonably necessary to perform its obligations under this Agreement; provided, however, that Company shall not use ACSI's Trademarks, including in any advertising, without ACSI's prior written consent, unless such use conforms to a written Trademark use policy previously furnished by ACSI to Company and not subsequently modified or revoked.  All goodwill arising out of any use of any of ACSI's or its Affiliates' Trademarks by, through or under Company will inure solely to the benefit of ACSI and its Affiliates.
+
+     6.3  Company License.  Company hereby grants to ACSI, during the Term, a non-exclusive, non-transferable (except in accordance with Section 11.7  [Assignment]) license, which ACSI may sublicense only to its Affiliates, to use the Company Intellectual Property supplied by Company to ACSI as is reasonably necessary to perform its obligations under this Agreement; provided, however, that ACSI shall not use Company's Trademarks, including in any advertising, without Company's prior written consent, unless such use conforms to a written Trademark use policy previously furnished by Company to ACSI and not subsequently modified or revoked.  All goodwill arising out of any use of any of Company's Trademarks by, through or under ACSI will inure solely to the benefit of Company.
+
+     6.4  Non-Disparagement.  Neither Company nor ACSI will use the other Party's Trademarks in a manner that disparages the other Party or its products or services, and/or portrays the other Party or its products or services in a false, competitively adverse or poor light.  Each of Company and ACSI will comply with the other Party's requests as to the use of the other Party's Trademarks and will avoid knowingly taking any action that diminishes the value of such Trademarks.
+
+Section 7.  Representations; Indemnity
+
+     7.1  Representations.  Each Party represents and warrants to the other that: (a) it has the full corporate right, power and authority to enter into this Agreement and perform its obligations hereunder; (b) its performance of this Agreement, and the other Party's exercise of such other Party's rights under this Agreement, will not conflict with or result in a breach
+
+                                     -15-
+
+or violation of any of the terms or provisions or constitute a default under any agreement by which it is bound; (c) when executed and delivered, this Agreement will constitute its legal, valid and binding obligation enforceable against it in accordance with its terms; and (d) it will comply with all applicable Laws in its performance of this Agreement.
+
+     7.2  Indemnity.  Each Party (as applicable, the "Indemnifying Party") will defend, indemnify and hold harmless the other Party (the "Indemnified Party") and its Affiliates (and their respective employees, directors and representatives) from and against any and all claims, costs, losses, damages, judgments and expenses (including reasonable attorneys' fees) arising out of any Claim, to the extent it is based on (a) the operation or content of the Indemnifying Party's Site (other than any items or materials supplied, or operation or content required, by the Indemnified Party), (b) the offer, marketing or sale of any products or services through the Indemnifying Party's Site (other than any products offered, marketed or sold by the Indemnified Party
+
+Source: AUDIBLE INC, 10-Q, 11/13/2000
+
+
+
+
+
+through such Site, the Parties acknowledging that Company shall be deemed the Indemnifying Party as to any Claim related to any products offered, marketed or sold by Company through the Spoken-Word Audio Sub-Section and/or Mirror Company Site, except to the extent that such Claim relates to any ACSI Site Functionality or other items or content provided by or for ACSI with respect to the Spoken-Word Audio Sub-Section and/or Mirror Company Site), (c) any actual or alleged breach of the Indemnifying Party's representations or warranties set forth in Section 7.1  [Representations] above, or, in the case of Company, its obligations under Section 4.4  [Regulatory Compliance]  above, or (d) any actual or alleged infringement of any Intellectual Property Rights by any content, items or materials provided by the Indemnifying Party to the Indemnified Party for its use under this Agreement. Subject to Section 7.3  [Procedure], the Indemnifying Party will pay any award against the Indemnified Party and its Affiliates (and their respective employees, directors or representatives) and any costs and attorneys' fees reasonably incurred by them resulting from any such Claim.
+
+     7.3  Procedure.  In connection with any Claim described in this Section 7, the Indemnified Party will (a) give the Indemnifying Party prompt written notice of the Claim, (b) cooperate with the Indemnifying Party (at the Indemnifying Party's expense) in connection with the defense and settlement of the Claim, and (c) permit the Indemnifying Party to control the defense and settlement of the Claim, provided that the Indemnifying Party may not settle the Claim without the Indemnified Party's prior written consent (which will not be unreasonably withheld).  Further, the Indemnified Party (at its cost) may participate in the defense and settlement of the Claim with counsel of its own choosing.  Unless the Indemnifying Party notifies the Indemnified Party in writing within five (5) days of its receipt of notice of any Claim that it irrevocably elects not to assume the defense of such Claim, the Indemnifying Party shall be deemed to have elected to assume the defense of such Claim.  If the Indemnifying Party elects not to assume the defense of any Claim, or having assumed the defense of any Claim fails to pursue diligently the defense thereof, the Indemnifying Party shall be deemed to have irrevocably waived any right to participate in or control the defense or settlement of such Claim and the Indemnified Party shall be entitled to sole control of the defense and settlement of such Claim (without limitation of the Indemnifying Party's indemnity obligations under this Section 7).
+
+                                     -16-
+
+Section 8.  Disclaimers, Limitations and Reservations
+
+     8.1  DISCLAIMER OF WARRANTIES.  EXCEPT AS PROVIDED IN SECTION 7.1  [Representations] ABOVE, NEITHER PARTY MAKES, AND EACH PARTY HEREBY WAIVES AND DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES REGARDING THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING (WITHOUT LIMITATION) ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OR IMPLIED WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.  WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EACH PARTY SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY REGARDING (A) THE AMOUNT OF SALES REVENUES THAT MAY OCCUR DURING THE TERM, AND (B) ANY ECONOMIC OR OTHER BENEFIT THAT THEY MIGHT OBTAIN THROUGH ITS PARTICIPATION IN THIS AGREEMENT (OTHER THAN THE SPECIFIC SUMS TO BE PAID PURSUANT TO THIS AGREEMENT).
+
+     8.2  No Consequential Damages.  EXCEPT TO THE EXTENT AWARDED TO A THIRD PARTY IN A JUDGMENT AGAINST WHICH A PARTY IS ENTITLED TO INDEMNIFICATION PURSUANT TO SECTION 7.2  [Indemnity], OR TO THE EXTENT ARISING OUT OF ANY BREACH OF SECTION 11.4  [Nondisclosure], NEITHER PARTY WILL BE LIABLE (WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), PRODUCT LIABILITY OR OTHER THEORY), TO THE OTHER PARTY OR ANY OTHER PERSON OR ENTITY FOR COST OF COVER OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFIT, REVENUE, BUSINESS OR DATA) ARISING OUT OF THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISEDOF THE POSSIBILITY OF SUCH COSTS OR DAMAGES.  FOR THE AVOIDANCE OF DOUBT, THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT NOTHING IN THIS SECTION 8.2  [No Consequential Damages] IS INTENDED TO LIMIT ANY RIGHT OF ACSI TO RECEIVE LIQUIDATED DAMAGES AS SET FORTH IN SECTION 10.5.2  [Effect of Termination].
+
+     8.3  Limitation of Damages. EXCEPT FOR LIABILITIES UNDER SECTION 7.2  [Indemnity], NEITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY OR OTHERWISE, SHALL EXCEED [***].
+
+     8.4  Third Party Infringement Claims. In the event that either Party receives from a third party a bona fide claim of infringement concerning any advertising materials or other content supplied by the other Party, such Party may immediately remove such materials
+
+--------- *** Confidential Information has been omitted and has been filed separately with     the Securities and Exchange Commission.
+
+                                     -17-
+
+or content from its Web Site at its sole discretion, pending receipt of non- infringing replacement materials or content or satisfactory resolution of such claim, and any such removal shall not constitute a breach of this Agreement.
+
+Section 9.  Exclusivity.
+
+     9.1    ACSI
+
+            9.1.1 Exclusive Spoken-Word Audio Products. During the Term, [***], ACSI will not offer or sell through the ACSI Site, or authorize any third party to sell through the ACSI Site, any Exclusive Spoken-Word Audio Products; [***].
+
+            9.1.2 [***]
+
+     9.2    [***]
+
+     9.3    [***]
+
+     9.4    Records; Audit. Each Party will, during the Term and for a period of one (1) year thereafter, maintain complete and accurate books and records sufficient to verify its compliance or non-compliance with the provisions of this Section 9 (and, in the case of Company, Section 5.4  [Royalties]). Each Party (the "Audited Party') will, upon at least thirty (30) days' prior written request by the other Party (the "Auditing Party"), allow an independent certified public
+
+Source: AUDIBLE INC, 10-Q, 11/13/2000
+
+
+
+
+
+accounting firm selected by the Auditing Party and reasonably acceptable to the Audited Party to audit such books and records at the Audited Party's premises to the extent necessary to verify the Audited Party's compliance or non-compliance with the provisions of this Section 9 (or, in the case of Company, Section 5.4  [Royalties]); provided, that: (a) any such audit is conducted during normal business hours and in a manner designed to not unreasonably interfere with the Audited Party's ordinary business operations; (b) audits may not occur more frequently than once every twelve (12) months; and (c) each such audit may only cover the period commencing after the period covered by the last audit conducted pursuant to this Section, if any. The Auditing Party agrees that any information learned or disclosed by its auditor in connection with such audit is Confidential Information of the Audited Party. If any such audit reveals any material non- compliance with the provisions of this Section 9 by the Audited Party, the Audited Party shall, within ten (10) days of its receipt of an invoice therefor, reimburse the Auditing Party for all reasonable out-of-pocket fees and expenses incurred by the Auditing Party in connection with the applicable audit. If any such audit reveals any underpayment of any sums payable pursuant to Section 5.4  [Royalties], Company will promptly remit to ACSI the amount of the underpayment; and, if the amount of such underpayment is five percent (5%) or more for any audited period, Company shall, within ten (10) days of its receipt of an invoice therefor, reimburse ACSI for all reasonable out-of-pocket fees and expenses incurred by ACSI and its Affiliates in connection with the applicable audit together with interest on any underpayment as provided in Section 5.5  [Overdue Payments].
+
+--------------- ***Confidential Information has been omitted and has been filed separately with the Securities and Exchange Commission.
+
+                                     -18-
+
+Section 10.  Term and Termination
+
+     10.1    Term.  The term of this Agreement will commence on the Effective Date, and unless earlier terminated as provided elsewhere in this Agreement, will end automatically upon the end of Year 3.
+
+     10.2    Termination for Breach.  Without limiting any other rights or remedies (including, without limitation, any right to seek damages and other monetary relief and ACSI's rights under Section 10.3  [ACSI Termination] or Company's rights under Section 10.4  [Company Termination]) that either Party may have in law or otherwise, either Party may terminate this Agreement if the other Party materially breaches its obligations hereunder, provided that, except as provided in Section 10.3  [ACSI Termination] and 10.4  [Company Termination], (a) the non-breaching Party sends written notice to the breaching Party describing the breach, and (b) the breaching Party does not cure the breach within thirty (30) days following its receipt of such notice; provided further, however, that without limitation of ACSI's rights under Section 10.3  [ACSI Termination] if the conditions set forth in that Section are satisfied, in the event of any failure by Company to comply with the customer service requirements specified in Section 2.4  [Technical Standards; Customer Service] and Exhibit B, ACSI shall only be entitled to terminate this Agreement by reason of such failure if it is material, ACSI has notified Company of such non-compliance and Company has not come into compliance with such requirements within sixty (60) days from the date of the non-breaching Party's notice.
+
+     10.3    ACSI Termination. In the event that: (a) Company at any time engages in any criminal conduct, fraud, dishonesty or other behavior that is materially harming the goodwill or reputation of ACSI or its Affiliates or the ACSI Site; (b) Company has consistently failed to abide by the technical and customer service requirements described in Section 2.4  [Technical Standards; Customer Service] or has failed to integrate the ACSI Site Functionality into the Spoken-Word Audio Sub-Section and/or Mirror Company Site as required by the Phase II Development Plan (so long as such failure is not a result of acts or omissions by ACSI); or (c) Company consistently fails to pay bona fide debts as they legally come due, institutes or has instituted against it any bankruptcy, reorganization, debt arrangement, assignment for the benefit of creditors, or other proceeding under any bankruptcy or insolvency Law or dissolution, receivership, or liquidation proceeding (and, if such proceeding is instituted against it, such proceeding is not dismissed within one hundred twenty (120) days), the same shall be deemed a material breach of this Agreement which is not susceptible to cure, and ACSI shall be entitled to terminate this Agreement upon written notice to Company. [***]
+
+     10.4    Company Termination.  In the event that (a) ACSI has failed to integrate the ACSI Site Functionality into the Spoken-Word Audio Sub-Section and/or Mirror Company Site as required by the Phase II Development Plan (so long as such failure is not a result of acts or omissions by Company); or (b) ACSI consistently fails to pay its bona fide debts as they legally come due, institutes or has instituted against it any bankruptcy, reorganization, debt arrangement, assignment for the benefit of creditors, or other proceeding under any bankruptcy or insolvency Law or dissolution, receivership, or liquidation proceeding (and, if such proceeding is instituted against it, such proceeding is not dismissed within one hundred twenty (120) days), the same shall be deemed a material breach of this Agreement which is
+
+--------------- ***Confidential Information has been omitted and has been filed separately with the Securities and Exchange Commission.
+
+                                     -19-
+
+not susceptible to cure, and Company shall be entitled to terminate this Agreement upon written notice to ACSI.
+
+     10.5  Effect of Termination.
+
+           10.5.1  General.  Upon termination of this Agreement, each Party in receipt, possession or control of the other Party's intellectual or proprietary property, information and materials (including any Confidential Information) pursuant to this Agreement must return to the other Party (or at the other Party's written request, destroy and certify in writing such destruction) such property, information and materials.  In addition, except as provided in Section 10.5.2  [Effect of Termination], Company will promptly upon any termination of this Agreement pay to ACSI a prorated portion of the Annual Fee due for the Year in which termination is effective; provided, however, that if Company terminates this Agreement by reason of ACSI's breach hereof, Company shall have no further payment obligation, and, if such termination occurs at any time during the Refund
+
+Source: AUDIBLE INC, 10-Q, 11/13/2000
+
+
+
+
+
+Period, ACSI shall promptly either (a) refund to Company a percentage of the Annual Fees paid pursuant to Section 5.2.1  [Annual Fees] equal to the Proration Percentage, or, at ACSI's option, (b) cause the transfer and assignment to Company of a percentage of the Shares delivered pursuant to Section 5.3  [Waiver of Payment Obligations] equal to the Proration Percentage.  Sections 6 through 8, 10 and 11 will survive the termination or expiration of this Agreement.
+
+           10.5.2  [***]
+
+           10.5.3  Construction by Court.  To the extent that any court of competent jurisdiction determines that any provision of Section 10.5.2  [Effect of Termination] is for any reason unlawful, invalid, in violation of public policy or otherwise unenforceable in whole or in part, such provision shall be narrowed in scope to the extent necessary to make the same lawful, valid and enforceable while as nearly as possible reflecting the intent of the Parties as expressed in this Agreement.
+
+           10.5.4  User Transition.  Upon any termination or expiration of the Term the Parties will cooperate in good faith to promote a smooth customer transition, and in any event, Company will, at ACSI's option, continue to operate the Mirror Company Site and offer Spoken-Word Audio Products through the Spoken-Word Audio Sub-Section in accordance with the terms of this Agreement for a period of up to six (6) months following such termination.
+
+           10.5.5  Phase II Development Plan.  Notwithstanding any other provision of this Agreement, the Parties acknowledge and agree that no failure by the Parties to develop the Phase II Development Plan as contemplated by Section 4.1.3  [Phase II] shall be deemed, in itself, a breach of this Agreement by either Party (and therefore that such occurrence shall not, in itself, give rise to any of the remedies specified in Section 10.5.1  [General] or Section 10.5.2  [Effect of Termination]).
+
+--------------- ***Confidential Information has been omitted and has been filed separately with the Securities and Exchange Commission.
+
+                                     -20-
+
+Section  11.  Miscellaneous
+
+      11.1    Tax Treatment.
+
+              11.1.1  The Parties acknowledge and agree that this Agreement and the transactions contemplated hereby are not intended to create any jurisdiction or authority for any governmental authority to impose any obligation to collect any sales tax, use tax or similar tax in connection with any sales of products by either Party or its Affiliates. Accordingly, each Party agrees to take such action as the other Party may reasonably request (including, without limitation, execution of affidavits and other documents) to avoid or curtail the imposition, by reason of this Agreement or the transactions contemplated hereby, of any such obligation on such Party or its Affiliates, or the establishment of a nexus for tax purposes sufficient to grant any jurisdiction the authority to levy any sales tax, use tax or similar tax on sales of products by such Party or its Affiliates in connection with this Agreement; provided, however, that nothing in this Section 11.1.1  [Tax Treatment] shall limit Company's obligations under Section 11.1.2  [Tax Treatment].
+
+              11.1.2  Company will collect and pay, and indemnify and hold harmless ACSI and its Affiliates from, any sales, use, excise, import or export, value added or similar tax or duty not based on ACSI's or its Affiliates' net income, including penalties and interest, costs associated with the collection and withholding thereof and attorneys fees in connection therewith, arising out of or in connection with this Agreement or Company's advertisement, offer or sale of any products.
+
+     11.2     Insurance.  Company will at its expense, prior to the Launch Date obtain, and thereafter throughout the Term and for a period of six (6) months thereafter maintain, such policy or policies of insurance as is commercially reasonable for the transactions and business contemplated by this Agreement. Without limiting the generality of the foregoing, Company will ensure that such policies contain a waiver of subrogation against ACSI, name ACSI and its assignees as additional insureds.  Company will not modify or terminate any coverage without giving at least thirty (30) days' prior written notice to ACSI. Upon request from ACSI, Company will furnish to ACSI certificates of insurance and such other documentation relating to such policies as ACSI may reasonably request.
+
+     11.3     Independent Contractors. The Parties are entering this Agreement as independent contractors, and this Agreement will not be construed to create a partnership, joint venture or employment relationship between them. Neither Party will represent itself to be an employee or agent of the other or enter into any agreement or legally binding commitment or statement on the other's behalf of or in the other's name.
+
+     11.4     Nondisclosure. Each Party will protect the Confidential Information of the other Party from misappropriation and unauthorized use or disclosure, and at a minimum, will take precautions at least as great as those taken to protect its own confidential information of a similar nature, but in no event with less than reasonable care. Without limiting the foregoing, the Receiving Party will: (a) use such Confidential Information solely for the purposes for which it has been disclosed; and (b) disclose such Confidential
+
+                                     -21-
+
+Information only to those of its and its Affiliates' employees, agents, and consultants who have a need to know the same for the purpose of performing this Agreement and who are informed of and agree to a duty of nondisclosure. The Receiving Party may also disclose Confidential Information of the Disclosing Party to the extent necessary to comply with applicable Law or legal process or pursuant to a registration report or exhibits thereto filed or to be filed with the Securities and Exchange Commission, listing agency or any stock securities commission, or any other associated filings, provided that the Receiving Party uses gives the Disclosing Party not less than ten (10) days' prior written notice thereof and complies with all reasonable requests of the Disclosing Party to minimize the extent or scope of any such disclosure. Upon request of the other Party, or in any event upon any termination or expiration of the Term, each Party shall return to the other or destroy (and certify in writing such destruction) all materials, in any medium, which contain, embody, reflect or
+
+Source: AUDIBLE INC, 10-Q, 11/13/2000
+
+
+
+
+
+reference all or any part of any Confidential Information of the other Party.
+
+     11.5     Costs.  Except as expressly provided herein, each Party will be responsible for all costs and expenses incurred by it in connection with the negotiation, execution, delivery and performance of this Agreement.
+
+     11.6     Notices.  Any notice or other communication under this Agreement given by either Party to the other Party will be in writing and, to be effective, must be sent to the intended recipient by prepaid registered letter, receipted commercial courier, or electronically receipted facsimile transmission (acknowledged in like manner by the intended recipient) at its address specified below its signature at the end of this Agreement, and in the case of ACSI, with a copy to Amazon.com, Inc., 1200 12th Avenue South, Suite 1200, Seattle, WA 98144, USA, Facsimile: (206) 266-7010 Attn: General Counsel and in the case of Company, with a copy to Audible Inc., Facsimile 973-890-0178, Attn: Vice President, Business & Legal Affairs; provided, that no notice of  termination of this Agreement shall be deemed properly given unless sent by prepaid registered mail to such address(es) and to the attention of such officer(s).  Either Party may from time to time change such address or individual by giving the other Party notice of such change in accordance with this Section 11.6  [Notices].
+
+     11.7     Assignment. Company may not assign or delegate this Agreement or any of its rights or obligations hereunder, whether voluntarily, involuntarily, by operation of Law or otherwise, without ACSI's prior written consent, which consent shall not be unreasonably withheld or delayed, except that Company may assign this Agreement to any direct or indirect wholly owned subsidiary in connection with any corporate reorganization undertaken for the purpose of minimizing the tax liability of Company and its Affiliates or other bona fide corporate purpose or in connection with any Change of Control [***]. Subject to the preceding two sentences, this Agreement shall be binding upon and inure to the benefit of the Parties hereto and their successors and assigns. ACSI may assign this Agreement to (a) any corporation or other entity resulting from any merger, consolidation, or other reorganization involving ACSI, (b) any of its Affiliates, or (c) any person or entity to which it transfers all or
+
+--------------- ***Confidential Information has been omitted and has been filed separately with the Securities and Exchange Commission.
+
+                                     -22-
+
+substantially all of its assets relating to the Spoken-Word Audio Sub-Section; provided that the assignee agrees in writing to be bound by all the terms and conditions of this Agreement.  Subject to the foregoing, this Agreement will be binding on and enforceable by the Parties and their respective successors and permitted assigns.
+
+     11.8     Nonwaiver.  To be effective, any waiver by a Party of any of its rights or the other Party's obligations under this Agreement must be made in a writing signed by the Party to be charged with the waiver.  No failure or forbearance by either Party to insist upon or enforce performance by the other Party of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement or otherwise at law or in equity shall be construed as a waiver or relinquishment to any extent of such Party's right to assert or rely upon any such provision, right, or remedy in that or any other instance; rather the same shall be and remain in full force and effect.
+
+     11.9     Counterparts; Transmitted Copies. This Agreement may be executed in any number of counterparts, each of which will be deemed an original, but all of which taken together will constitute one and the same instrument. To expedite the process of entering into this Agreement, the Parties acknowledge that Transmitted Copies of the Agreement shall be equivalent to original documents until such time (if any) as original documents are completely executed and delivered. "Transmitted Copies" shall mean copies which are reproduced or transmitted via facsimile, or another process of complete and accurate reproduction and transmission.
+
+     11.10    Headings.  The headings of sections and subsections of this Agreement are for convenience of reference only and are not intended to restrict, affect or otherwise influence the interpretation or construction of any provision of this Agreement.
+
+     11.11    Choice of Law.  This Agreement will be interpreted, construed and enforced in accordance with the Laws of the State of Washington, without reference to its choice of Laws rules.
+
+     11.12    Venue.  Company hereby irrevocably consents to non-exclusive personal jurisdiction and venue in the state and federal courts located in King County, Washington, with respect to any claim, action or proceeding arising out of or related to this Agreement and agrees not to commence or prosecute any such claim, action or proceeding other than in the aforementioned courts.
+
+     11.13    Entire Agreement.  This Agreement (a) represents the entire agreement between the Parties with respect to the subject matter hereof and supersedes any previous or contemporaneous oral or written agreements regarding such subject matter and (b) may be amended or modified only by a written instrument signed by a duly authorized agent of each Party.  No breach of this Agreement by either Party shall affect the rights or obligations of either Party under any other Agreement between the Parties; rather, the same will remain in full force and effect.
+
+                                     -23-
+
+ACSI                                     Company: ----                                     --------
+
+Amazon.com Commerce Services, Inc.       Audible Inc.
+
+ /s/                                      /s/ Don Katz ----------------------------------       -------------------------------------- By (Sign)                                By (Sign)
+
+Vice President                           Founder, Chairman, Acting CEO ----------------------------------       -------------------------------------- Title                                    Title
+
+Source: AUDIBLE INC, 10-Q, 11/13/2000
+
+
+
+
+
+1/30/2000                                1/30/2000 ----------------------------------       -------------------------------------- Date                                     Date
+
+Notice Address:                          Notice Address:
+
+[***]                                    [***]
+
+--------------- ***Confidential Information has been omitted and has been filed separately with the Securities and Exchange Commission.
+
+                                     -24-
+
+Source: AUDIBLE INC, 10-Q, 11/13/2000

full_contract_txt/AzulSa_20170303_F-1A_EX-10.3_9943903_EX-10.3_Maintenance Agreement2.txt

@@ -0,0 +1,245 @@
+Execution version
+
+
+
+  Amendment n° 01   to the Global Maintenance Agreement ref. DS/C-3957/14 Issue 7 dated March 9t h , 2015
+
+
+
+BETWEEN
+
+AZUL LINHAS AÉREAS BRASILEIRAS S/A
+
+AND
+
+AVIONS DE TRANSPORT REGIONAL, G.I.E.   AZUL-ATR   Amendment N° 1 Global Maintenance Agreement   Page 1/9
+
+Source: AZUL SA, F-1/A, 3/3/2017
+
+
+
+
+
+Execution version   TABLE OF CONTENTS:   CLAUSE   PAGE
+
+1.   DEFINITIONS     4
+
+2.   AMENDMENT     4
+
+3.   EFFECTIVE DATE AND DURATION     5
+
+4.   CONFIDENTIALITY     5
+
+5.   GOVERNING LAW - ARBITRATION     7
+
+6.   MISCELLANEOUS     8    AZUL-ATR   Amendment N° 1 Global Maintenance Agreement   Page 2/9
+
+Source: AZUL SA, F-1/A, 3/3/2017
+
+
+
+
+
+Execution version   CONFIDENTIAL TREATMENT REQUESTED   This amendment (hereinafter referred to as the "Amendment") is entered into on January 6th, 2016.
+
+BETWEEN:
+
+AZUL LINHAS AÉREAS BRASILEIRAS S/A, a company incorporated under the laws of Brazil, the registered office of which is located at Avenida Marcos Penteado de Ulhôa Rodrigues, 939 - Edif. Castello Branco Office Park - Torre Jatobá - 9° andar - CEP 06460-040 - Alphaville Industrial - Barueri - São Paulo - Brazil, identified under Cadastro Nacional de pessoa Juridica (CNPJ) number 09.296.295/0001-60.
+
+Hereafter referred to as the "Company" or "AZUL",
+
+On the one part,
+
+AND:
+
+AVIONS DE TRANSPORT REGIONAL, G.I.E., a French groupement d'intérêt économique established under articles L.251-1 to L251-23 of the French Commercial Code, whose registered office is at 1 allée Pierre Nadot, 31712 Blagnac, France identified under Corporate and Trade Register of Toulouse number 323 932 236,
+
+Hereafter referred to as the "Repairer' or "ATR", On the other part.
+
+Hereinafter individually referred to as the "Party" or collectively as the "Parties"
+
+RECITALS:
+
+WHEREAS the Repairer and the Company entered into a Global Maintenance Agreement as referenced here above (as amended and supplemented from time to time, hereafter referred to as the "GMA") for the purpose of providing the Company with Services for the maintenance of the Aircraft; and,
+
+WHEREAS in consideration of modification of the operations, the Repairer and the Company agree to amend the GMA in order to update the number of [*****] required for the invoicing; and,
+
+WHEREAS the Parties wish to amend certain provisions of the GMA upon the terms and conditions set out below.
+
+NOW THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:     [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.   AZUL-ATR   Amendment N° 1 Global Maintenance Agreement   Page 3/9
+
+Source: AZUL SA, F-1/A, 3/3/2017
+
+
+
+
+
+Execution version   CONFIDENTIAL TREATMENT REQUESTED
+
+1. DEFINITIONS
+
+Unless otherwise defined, capitalised terms, singular or plural, used in this Amendment, shall have the same meaning ascribed thereto in the GMA.
+
+  2. AMENDMENT
+
+The following Clauses, sentences or words of the GMA are amended as follows:     2.1 Clause 12 - INVOICING AND PAYMENT TERMS       (i) Clause 12.1(ii) of the GMA shall be cancelled and substituted as follow:   [*****]     [*****]     [*****]     [*****]     [*****]     [*****]     [*****]     [*****]     (ii) Any other provision of Clause 12 shall remain in full force and effect.   2.2 Exhibit 14 - PRICE CONDITIONS       (i) Clause 3.2 of the Exhibit 14 of the GMA shall be cancelled and substituted as follow:   "3.2 Technical conditions for prices adjustment
+
+The prices set out in this Exhibit 14 shall be modified every [*****] at the occasion of the invoicing reconciliation pursuant to Clause 11 ("Reconciliation") if the Standard Operations of the    [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.   AZUL-ATR   Amendment N° 1 Global Maintenance Agreement   Page 4/9
+
+Source: AZUL SA, F-1/A, 3/3/2017
+
+
+
+
+
+Execution version   CONFIDENTIAL TREATMENT REQUESTED   Aircraft, analyzed at the time of the adjustment (all calculations are made with figures corresponding to [*****], change by more or less [*****] with respect to the estimated values of the same parameters, considered at the time of commencement of the Term.
+
+As from the date this Agreement enters into force, the Parties agree to take into account the following basic operating parameters (the "Standard Operations") as a reference for the above calculation:
+
+  (i) [*****]
+
+  - [*****]
+
+  (ii) [*****]
+
+  - [*****]
+
+(ii) Any other provision of the Exhibit 14 shall remain in full force and effect.
+
+  3. EFFECTIVE DATE AND DURATION
+
+This Amendment shall enter into force on the date of its signature by both Parties and, unless otherwise agreed upon in writing by the Parties through a subsequent amendment to the GMA, shall remain in force for the term of the referenced GMA.
+
+  4. CONFIDENTIALITY
+
+4.1 Confidentiality obligations
+
+Unless otherwise provided in this Amendment, any Confidential Information released by either of the Parties (the "Disclosing Party") to the other Party (the "Receiving Party") shall not be released in whole or in part to any third party.
+
+In particular, the Receiving Party undertakes:
+
+  - to keep the Confidential Information strictly confidential, not to deliver, disclose or publish it to any third party including subsidiarycompanies and companies having an interest in its capital, except as otherwise agreed in writing by the Disclosing Party;
+
+  - to use the Confidential Information solely for the purpose of this Amendment and except as otherwise expressly agreed in writing bythe Disclosing Party, not to use the same or permit its use for any other purpose;
+
+
+
+- to disclose the Confidential Information only to those of its direct employees having a need to know such Confidential Information in order to make permitted use thereof, after having beforehand clearly informed such employees of the strictly confidential nature of the Confidential Information and caused them to observe said conditions of confidentiality. The Receiving Party shall be responsible for the correct performance of said obligations of confidentiality by its employees and shall keep up to date the list of its personnel, to whom Confidential Information is communicated, which list shall be made available to the Disclosing Party at its request;
+
+  - not to duplicate the Confidential Information nor to copy or reproduce the same beyond the purpose of the Amendment;
+
+  - not to disclose Confidential Information to any third party, unless such third party is acting at the instruction of the Receiving Party and such disclosure is reasonably necessary to accomplish the purpose of the Amendment, provided however, that prior to any such disclosure both of the following conditions are satisfied:     [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.   AZUL-ATR   Amendment N° 1 Global Maintenance Agreement   Page 5/9
+
+Source: AZUL SA, F-1/A, 3/3/2017
+
+
+
+
+
+Execution version
+
+  (i) each of such third parties, shall have signed an acknowledgement to keep such Confidential Information as strictly confidential;and,
+
+  (ii) the Receiving Party shall have obtained written prior approval of the Disclosing Party of such proposed disclosure, whichapproval may be not unreasonably withheld or delayed.
+
+  - promptly notify the Disclosing Party if a disclosure of Confidential Information is required by a Government Entity or by Law and to useall reasonable effort to assist the Disclosing Party in limiting such disclosure to the extent permitted by Law;
+
+  - upon discovery of any disclosure of Confidential Information, regardless of whether such discovery is intentional or inadvertent, the Receiving Party shall promptly notify the Disclosing Party and take all reasonable actions (i) to retrieve the disclosed Confidential Information, (ii) to destroy any unauthorized copies thereof and (iii) to stop further disclosure.
+
+4.2 Non application of confidentiality obligations
+
+The obligations of Receiving Party with respect to Confidential Information as set forth in this Clause 4.1 above shall not be applicable to information which:
+
+  (a) upon the Signing Date was part of the public domain or became part of the public domain after the disclosure, other than by a violationof the Amendment or any other non-disclosure Amendment or the applicable Law of any jurisdiction; or
+
+  (b) was already lawfully known by the Receiving Party, as evidenced by written records bearing an unquestionable date, prior the SigningDate by the Disclosing Party and was unrestricted; or
+
+  (c) was lawfully disclosed to the Receiving Party subsequently to the signature of the Amendment by a third party which had not receivedthe same directly or indirectly from the Disclosing Party and that such disclosure does not violate any non-disclosure Amendment.
+
+  4.3 Permitted disclosure of Confidential Information
+
+Notwithstanding any provision to the contrary in the Amendment, the Receiving Party shall be entitled to disclose Confidential Information if required to do so:
+
+  (a) by order of a court or government agency of competent jurisdiction; or
+
+  (b) by any applicable Law,
+
+provided, however, that prior to making such disclosure, the Receiving Party shall if possible advise the Disclosing Party of the circumstances requiring such disclosure in order to afford the Disclosing Party sufficient advance notice to permit to raise any objections that it may deem appropriate.
+
+  4.4 Disclosing Party's proprietary rights
+
+Any Confidential Information shall remain the property of the Disclosing Party. The Amendment shall not be construed as granting or conferring to the Receiving Party, either expressly or by implication, any license or proprietary interest in or to any Confidential Information nor any right of use beyond the purpose of this Amendment.
+
+The Repairer, its Affiliates and/or its Subcontractors as applicable shall remain the exclusive owner of any intellectual property right related to the Services including: design of the LRUs, Main Elements, job cards, task cards, operating manual or industrial process, as relevant. No title to or other ownership interest in   AZUL-ATR   Amendment N° 1 Global Maintenance Agreement   Page 6/9
+
+Source: AZUL SA, F-1/A, 3/3/2017
+
+
+
+
+
+Execution version   CONFIDENTIAL TREATMENT REQUESTED   the Confidential Information is transferred except as specifically stated in the Amendment, and the Receiving Party hereby expressly disclaims any such rights or interests.
+
+The Receiving Party hereby acknowledges and recognises that Confidential Information is protected by copyright Laws and related international treaty provisions, as the case may be.
+
+  4.5 For the sake of clarity, and for the purpose of this Clause 4 and this Amendment, any of the receiving Party's Affiliates and their Subcontractors shall not be considered as third party and shall be entitled to have access to any Confidential Information disclosed by the disclosing Party in connection with this Amendment.   4.6 This Clause 4 shall survive termination or expiry of this Amendment for a period of five (5) years following such End Date.
+
+5. GOVERNING LAW - ARBITRATION
+
+5.1 Governing law:
+
+Pursuant to and in accordance with Section 5-1401 of the New York General Obligations Law, the Parties hereto agree that this Amendment in all respects, and any claim or cause of action based upon or arising out of this Amendment, or any dealing between the Parties relating to the subject matter of this Amendment or the transactions contemplated hereby or the Company/Repairer relationship being established, shall be governed by, and construed in accordance with, the laws of the State of New York, U.S.A. as applied to contracts to be performed wholly within the State of New York (Exclusive of Section 7-101 of the New York General Obligations Law which is inapplicable to this Amendment).
+
+  5.2 Arbitration: in the event of a dispute arising out of or relating to this Amendment, including without limitation disputes regarding the existence, validity or termination of this Amendment (a "Dispute"), either Party may notify such Dispute to the other through service of a written notice (the "Notice of Dispute"). The Parties shall make their reasonable endeavours to settle the Dispute amicably by a committee composed of one (1) management representative of each Party (the "Representatives"). Such committee shall be created by the Parties within [*****] from the date of receipt of the Notice of Dispute.
+
+
+
+
+
+5.2.1 Subject to sub-Clause 5.2.5 below and in the event the Representatives (i) fail to create such committee or (ii) do not agree on an amicable settlement within [*****] from the date the committee referred to in this sub-Clause 5.2 has been created or such longer period as may be agreed upon in writing by the Representatives (the "Amicable Settlement Period"), the Dispute shall be exclusively and finally settled under the Rules and Conciliation of Arbitration of the International Chamber of Commerce (the "ICC") by an arbitral tribunal composed of three (3) arbitrators; each Party shall then appoint one (1) arbitrator within [*****]from the last day of the Amicable Settlement Period and the third arbitrator, who will act as President, will be appointed by the other two (2) arbitrators. In case the two (2) arbitrators appointed by the Parties do not agree on this choice with [*****] from the date the last arbitrator is appointed, the third arbitrator will be appointed by the ICC Court.
+
+    5.2.2 The arbitration, and any proceedings, and meetings incidental to or related to the arbitration process, shall take place in New York, U.S.A, and the language to be used in the arbitral proceedings shall be English; arbitral award shall be final and binding upon the Parties.
+
+    5.2.3 The arbitration shall be kept confidential and the existence of the proceeding and any element of it shall not be disclosed to any third party. Any information relating to and/or documents generated for the purpose of or produced in the arbitration, including any awards, shall remain confidential   [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.   AZUL-ATR   Amendment N° 1 Global Maintenance Agreement   Page 7/9
+
+Source: AZUL SA, F-1/A, 3/3/2017
+
+
+
+
+
+Execution version   between the Parties, the arbitrators and any other Person involved in the arbitration proceedings, except to the extent that disclosure may be required pursuant to any order of court or other competent authority or tribunal, or to protect or pursue a legal rights or to enforce or challenge an award in bona fide legal proceedings before a state court or other judicial authority.
+
+    5.2.4 During any period of negotiation or arbitration, the Parties shall continue to meet their respective obligations in accordance with theprovisions of the Amendment.
+
+    5.2.5 Notwithstanding any provision of this Clause 5.2 the Parties may, at any time, seek and decide to settle a Dispute either throughdirect negotiations or in accordance with the ICC rules in respect of the alternative dispute resolution.
+
+  5.3 Judgment upon any award may be entered in any court having jurisdiction or application may be made to the court for a judicial recognition of the award or an order of enforcement, as the case may be.
+
+  5.4 Recourse to jurisdictions is expressly excluded except as provided for in the ICC Rules of Conciliation and Arbitration concerning Conservatory and Interim measures.
+
+  6. MISCELLANEOUS
+
+  6.1 This Amendment contains the entire agreement between the Parties regarding the subject-matter and shall supersede any previous understandings, commitments and/or representations whatsoever oral or written.
+
+  6.2 In case of any inconsistency between the terms of the GMA and this Amendment regarding the subject-matter, the latter shall prevail.
+
+To the extent not inconsistent with this Amendment, all terms and conditions of the GMA shall remain valid and binding.
+
+  6.3 This Amendment shall not be varied or modified except by a written document duly signed by duly authorized representatives of both Parties.   AZUL-ATR   Amendment N° 1 Global Maintenance Agreement   Page 8/9
+
+Source: AZUL SA, F-1/A, 3/3/2017
+
+
+
+
+
+Execution version   IN WITNESS WHEREOF, the duly authorized representatives of the Parties hereto have agreed to execute this Amendment in two (2) original copies in the English language.   On behalf of: /s/ Renato Covelo     On behalf of:
+
+AZUL LINHAS AÉREAS BRASILEIRAS S/A (the Company)
+
+AVIONS DE TRANSPORT REGIONAL (the Repairer)
+
+Signed by: Renato Covelo   Signed by:   M. Castoriwa     Function: Attorney In Fact   Function:   VP Commercial Date: December 18th, 2015   Date:   January 6th, 2016   AZUL-ATR   Amendment N° 1 Global Maintenance Agreement   Page 9/9
+
+Source: AZUL SA, F-1/A, 3/3/2017

full_contract_txt/BANGIINC_05_25_2005-EX-10-Premium Managed Hosting Agreement.txt

@@ -0,0 +1,79 @@
+03/01/05
+
+607-1295 Richards Street   604.684.2255
+
+Vancouver, BC V6B1B7   [email protected]   deep systems
+
+
+
+
+
+Premium Managed Hosting Agreement
+
+This is a managed hosting agreement between AstroNutrition.com and deep systems.  The effective term is 12 months beginning March 1, 2005 and ending February 28, 2006.
+
+Included Monthly Services
+
+System Administration
+
+Management of SMTP, IMAP, DNS, SQL database and HTTP server software and systems for the AstroNutrition.com domain and web site.  This includes regular off-site backups of the website itself and the database.
+
+Change Management
+
+Management of site source code and integration of contributed software updates and bug fixes into zencart is included.
+
+Personal Technical Support
+
+24 x 7 emergency phone support and 1-business-day email response on non-critical issues.
+
+Includes a 99 percent server uptime guarantee.
+
+Available Professional Services
+
+Project Management
+
+Support of external development is charged at a rate of $55 CAD per hour.
+
+Custom Software Development
+
+New code enhancing the functionality of the system is charged at a rate of $55 CAD per hour.
+
+Terms of Agreement
+
+Managed hosting fees are $175 per month for a period of 12 months.  This includes up to 10 G of bandwidth, with overages at $20 for each 1 G beyond 10 in any given month. The billing cycle is the 1st of each month.
+
+D/WLM/717334.1
+
+
+
+
+
+
+
+- 2 -
+
+03/01/05
+
+607-1295 Richards Street   604.684.2255
+
+Vancouver, BC V6B1B7   [email protected]   deep systems
+
+
+
+
+
+Co-located Facilities
+
+Servers are co-located at 700 West Georgia in downtown Vancouver on UPS and backup generator power.
+
+Server Software
+
+- FreeBSD 5 Operating System - Apache 2 HTTP Server - MySQL 4 Database Server - AWStats Advancd Web Stats Package - WebDAV interface for external developers - Subversion Change Management System - Trac Issue Tracking System and Project Knowledge Base
+
+/s/ Ryan Thompson
+
+/s/ Chester Ku   Ryan Thompson, Deep Systems
+
+Chester Ku, Astro Nutrition
+
+D/WLM/717334.1       - 2 -

full_contract_txt/BANUESTRAFINANCIALCORP_09_08_2006-EX-10.16-AGENCY AGREEMENT.txt

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+QuickLinks -- Click here to rapidly navigate through this document
+
+Exhibit 10.16
+
+     EL BANCO FINANCIAL CORPORATION
+
+AGENCY AGREEMENT
+
+, 2006
+
+Ladies and Gentlemen:
+
+El Banco Financial Corporation, a Georgia corporation (the "Company"), proposes, subject to the terms and conditions stated herein, to engage the sales agent identified on the signature page to this Agreement (the "Agent" or "you") to assist the Company on a "best efforts" basis in the sale of the Company's common stock, $.01 par value per share (the "Shares").
+
+1. The Offering. The Company is offering the Shares, in connection with the Company's initial public offering (the "Offering").
+
+The Company has prepared and filed, in accordance with the provisions of the Securities Act of 1933 and the rules and regulations thereunder (collectively, the "1933 Act"), with the Securities and Exchange Commission (the "Commission") a registration statement on Form SB-2 (File No. 333-135900) under the 1933 Act, including a prospectus, relating to the Shares. Except where the context otherwise requires, "Registration Statement," as used herein, means the registration statement, as amended at the time of such registration statement's effectiveness for purposes of Section 11 of the 1933 Act (the "Effective Time"), including (i) all documents filed as a part thereof, (ii) any information contained in a prospectus subsequently filed with the Commission pursuant to Rule 424(b) under the 1933 Act and deemed, pursuant to Rule 430A or Rule 430C under the 1933 Act, to be part of the registration statement at the Effective Time, and (iii) any registration statement filed to register the offer and sale of the Shares pursuant to Rule 462(b) under the 1933 Act.
+
+Except where the context otherwise requires, a "Preliminary Prospectus," as used herein, means any preliminary prospectus included in the Registration Statement or filed with the Commission pursuant to Rule 424(a) under the Securities Act.
+
+Except where the context otherwise requires, "Prospectus," as used herein, means the prospectus filed by the Company with the Commission pursuant to Rule 424(b) under the 1933 Act on or before the second business day after the Effective Time (or such earlier time as may be required under the Act), or, if no such filing is required, the final prospectus included in the Registration Statement at the Effective Time.
+
+"Permitted Free Writing Prospectuses," as used herein, means the documents and each "road show" (as defined in Rule 433(h)(4) under the 1933 Act), if any, related to the offering of the Shares contemplated hereby that is a "written communication" (as defined in Rule 405 under the 1933 Act).
+
+"Disclosure Package," as used herein, means any Preliminary Prospectus together with any combination of one or more of the Permitted Free Writing Prospectuses, if any.
+
+"Blue Sky Application," as used herein, means any instrument or document executed by the Company or based upon written information supplied by the Company filed in any state or jurisdiction to register or qualify any or all of the Shares or to claim an exemption therefrom or provided to any state or jurisdiction to exempt the Company as a broker-dealer or the officers, directors or employees as broker-dealers or agents of the Company under the securities laws thereof.
+
+Any reference herein to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus shall be deemed to refer to and include the documents, if any, incorporated by reference, or deemed to be incorporated by reference, therein (the "Incorporated Documents"), including, without limitation, unless the context otherwise requires, the documents, if
+
+
+
+
+
+
+
+
+
+any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms "amend," "amendment" or "supplement" with respect to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Securities Exchange Act of 1934 and the rules and regulations thereunder (the "Exchange Act") on or after the Effective Time, or the date of such Preliminary Prospectus, the Prospectus or such Permitted Free Writing Prospectus, as the case may be, and deemed to be incorporated therein by reference.
+
+2. Retention of Agent; Compensation; Sale and Delivery of the Shares. Subject to the terms and conditions herein set forth, the Company hereby appoints the Agent as a placement agent, on a non-exclusive basis, to utilize its "best efforts" to solicit subscriptions for the Shares and to assist the Company with respect to the Company's sale of the Shares in the Offering.
+
+On the basis of the representations and warranties and subject to the terms and conditions of this Agreement, the Agent accepts such appointment. The Agent shall not be obligated to purchase any Shares and shall not be obligated to take any action which Agent deems to be inconsistent with any applicable law, regulation, decision or order. Subscriptions will be offered as described in the Registration Statement. Except as otherwise provided in this Agreement, the appointment of the Agent will terminate upon completion, expiration or termination of the Offering.
+
+In the event the Company is unable to sell a minimum of 1,875,000 Shares on or before June 30, 2007, this Agreement shall terminate and the Company shall cause the Escrow Agent (as defined below) to refund to any persons who have subscribed for any of the Shares the full amount it received from them, without interest, as set forth in the Prospectus; and none of the parties to this Agreement shall have any obligation to the other parties hereunder, except as set forth in this Section 2 and in Sections 8, 10, and 11.
+
+In the event the Offering is terminated and the Closing (as defined below) does not occur, then the Agent shall not receive the fees set forth in subparagraph (a) below (the "Fees"); provided, however, regardless of whether or not the Closing occurs, the Agent shall be entitled to receive reimbursement of its actual accountable out-of-pocket expenses, as set forth in subparagraph (b) below.
+
+If all conditions precedent to the consummation of the Offering are satisfied, the Company agrees to issue, or have issued, the Shares sold in the Offering and to release for delivery certificates for such Shares on the Closing Date (as defined below) against payment to the Company by any means authorized pursuant hereto; provided, however, that no funds shall be released to the Company until the conditions specified in Section 9 hereof shall have been complied with to the reasonable satisfaction of the Company. The release of Shares against payment therefor shall be made on a date or dates and at a place determined by the Company (each closing, a "Closing"). Certificates for Shares shall be delivered directly to the purchasers in accordance with their directions. The date upon which the Company shall release or deliver the Shares sold in the Offering, in accordance with the terms herein, is called the "Closing Date." After the initial Closing, which may occur at any time after the minimum of 1,875,000 Shares have been sold, the Company may continue the Offering and the Agent may continue to solicit purchasers for the Shares up to the maximum amount of the Offering or until the Offering expires or is closed by the Company as set forth in the Prospectus. Additional Closings shall occur with respect to Shares sold after the initial Closing on dates and at locations as determined by the Company after the initial Closing, each also considered a "Closing Date".
+
+The Agent shall receive the following compensation for its services hereunder:
+
+a. The fee shall be equal to 5.2% of the "gross proceeds" received in the Offering attributable to the efforts of the Agent. At least 48 hours prior to each Closing, the Agent shall deliver a schedule, identified as Appendix A, that lists each investor and the amount of investment.
+
+2
+
+
+
+
+
+
+
+b. Agent shall be reimbursed for expenses as contemplated by Section 8 of this Agreement, regardless of whether the Offering is successfully completed. Any out-of-pocket expenses or commissions payable under this Agreement shall be paid in next day funds on the earlier of the initial Closing Date or a determination by the Company to terminate or abandon the Offering, and on each subsequent Closing Date thereafter.
+
+3. Representations and Warranties of the Company. The Company represents and warrants to the Agent that:
+
+a. The Company has all such power, authority, authorizations, approvals and orders as may be required to enter into this Agreement, to carry out the provisions and conditions hereof and to issue and sell the Shares as contemplated herein and as described in the Registration Statement, any Preliminary Prospectuses, the Prospectus or any Permitted Free Writing Prospectus. The consummation of the Offering, the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein have been duly and validly authorized by all necessary corporate action on the part of the Company and this Agreement has been validly executed and delivered by the Company and is the valid, legal and binding agreement of the Company enforceable in accordance with its terms, except to the extent, if any, that the provisions of Section 10 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors' rights generally.
+
+b. The Registration Statement is effective under the 1933 Act; no stop order of the Commission preventing or suspending the use of any Preliminary Prospectus or Permitted Free Writing Prospectus or the effectiveness of the Registration Statement has been issued, and no proceedings for such purpose have been instituted or, to the knowledge of the Company, are contemplated by the Commission; the Registration Statement complied when it became effective, complies as of the date hereof and, as amended or supplemented, at each time a subscription agreement of funds are submitted by prospective investors to the Company during the Offering period (each such time referred to as a "time of delivery"), at the Closing Date and at all times during which a prospectus is required by the 1933 Act to be delivered (whether physically or through compliance with Rule 172 under the 1933 Act or any similar rule) in connection with any sale of Shares, will comply, in all material respects, with the requirements of the 1933 Act; each Preliminary Prospectus complied, at the time it was filed with the Commission, and complies as of the date hereof, in all material respects, with the requirements of the 1933 Act; at no time during the period that begins on the earlier of the date of such Preliminary Prospectus and the date such Preliminary Prospectus was filed with the Commission and ends at the Closing Time (as defined herein) did or will any Preliminary Prospectus, as then amended or supplemented, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and at no time during such period did or will any Preliminary Prospectus, as then amended or supplemented, together with any combination of one or more of the then issued Permitted Free Writing Prospectuses, if any, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; the Prospectus will comply, as of its date, the date that it is filed with the Commission, each time of delivery, the Closing Date and at all times during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the 1933 Act or any similar rule) in connection with any sale of Shares, in all material respects, with the requirements of the 1933 Act (including, without limitation, Section 10(a) of the 1933 Act); at no time during the period that begins on the earlier of the date of the Prospectus and the date the Prospectus is filed with the Commission and ends at the later of the Closing Time and the end of the period during which a prospectus is required by the 1933 Act to be delivered (whether physically or through compliance with Rule 172 under the 1933 Act or any similar rule) in connection with any sale of Shares did or will the Prospectus, as then amended or
+
+3
+
+
+
+
+
+
+
+supplemented, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; at no time during the period that begins on the date of such Permitted Free Writing Prospectus and ends at the time of purchase did or will any Permitted Free Writing Prospectus include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no representation or warranty with respect to any statement contained in the Registration Statement, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus in reliance upon and in conformity with information concerning the Agent and furnished in writing by or on behalf of the Agent to the Company expressly for use in the Registration Statement, such Preliminary Prospectus, the Prospectus or such Permitted Free Writing Prospectus, as applicable. All Permitted Free Writing Prospectuses were preceded by, or accompanied with, a statutory prospectus meeting the requirements of Section 10(a) of the Act as required by Rule 164 under the 1933 Act.
+
+c. If a Permitted Free Writing Prospectus is sent or given after the Registration Statement is filed with the Commission (and after such Permitted Free Writing Prospectus was, if required pursuant to Rule 433(d) under the 1933 Act, filed with the Commission), the sending or giving, by the Agent, of any Permitted Free Writing Prospectus will satisfy the provisions of Rule 164 or Rule 433 of the 1933 Act (without reliance on subsections (b), (c) and (d) of Rule 164); each of the Preliminary Prospectuses is a prospectus that, other than by reason of Rule 433 or Rule 431 under the 1933 Act, satisfies the requirements of Section 10 of the 1933 Act, including a price range where required by rule; neither the Company nor the Agent is disqualified, by reason of subsection (f) or (g) of Rule 164 under the 1933 Act, from using, in connection with the offer and sale of the Shares, "free writing prospectuses" (as defined in Rule 405 under the 1933 Act) pursuant to Rules 164 and 433 under the 1933 Act; the Company is not an "ineligible issuer" (as defined in Rule 405 under the 1933 Act) as of the eligibility determination date for purposes of Rules 164 and 433 under the 1933 Act with respect to the offering of the Shares contemplated by the Registration Statement; the parties hereto agree and understand that the content of any and all road shows related to the Offering is solely the property of the Company.
+
+d. No Blue Sky Application will include an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no representation or warranty with respect to any statement contained in a Blue Sky Application in reliance upon and in conformity with information concerning the Agent and furnished in writing by or on behalf of the Agent to the Company expressly for use in the Blue Sky Application.
+
+e. The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of State of Georgia, and has corporate power and authority to own, lease or operate its properties and to conduct its business as described in the Registration Statement, the Preliminary Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if any, and to enter into and perform its obligations under this Agreement.
+
+f. Since the respective dates as of which information is given in the Registration Statement, the Preliminary Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if any, except as otherwise stated therein, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company considered as one enterprise, whether or not arising in the ordinary course of business (a "Material Adverse Effect").
+
+g. The Company has an authorized capitalization as set forth in the Registration Statement, the Preliminary Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if any.
+
+4
+
+
+
+
+
+
+
+h. The Shares have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein, will be duly and validly issued and fully paid and nonassessable and will conform to the description of the Shares contained in the Registration Statement, the Preliminary Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if any.
+
+i. The issuance and sale of the Shares being issued at each Closing Date by the Company and the performance of this Agreement and the consummation by the Company of the other transactions herein contemplated will not conflict with or result in a breach or violation of any terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company is a party or by which any of the property or assets of the Company is bound or to which any of the property or assets of the Company is subject, nor will such action result in any violation of the provisions of the Articles of Incorporation, as amended, or Bylaws, as amended, of the Company or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its properties; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issuance and sale of the Shares or the consummation by the Company of the transactions contemplated by this Agreement, except such consents, approvals, authorizations, registrations or qualifications as may be required under the Act and under state securities or Blue Sky laws in connection with the purchase and distribution of the Shares by the Agent.
+
+j. The Company owns its assets and has the right to conduct its business as currently conducted.
+
+k. There is no litigation or governmental proceeding pending or threatened against, or involving the properties or business of, the Company that might materially and adversely affect the value or the operation of the any such properties or the business of the Company.
+
+l. McNair, McLemore, Middlebrooks & Co., LLP, which has certified certain financial statements and supporting schedules of the Company included in the Registration Statement, the Preliminary Prospectus, the Prospectus and the Free Writing Prospectuses containing an audit report, are independent public accountants as required by the Act and the rules and regulations of the Commission thereunder.
+
+m. The Company has not distributed, nor will it distribute, prior to the Closing Time any prospectus (as defined under the 1933 Act) in connection with the Offering and sale of the Shares other than the Registration Statement, any Preliminary Prospectuses, the Prospectus, any Permitted Free Writing Prospectuses or other materials, if any, permitted by the 1933 Act, including Rule 134 promulgated thereunder.
+
+4. Representations and Warranties of the Agent.
+
+a. The Agent has all such power, authority, authorizations, approvals and orders as may be required to enter into this Agreement, to carry out the provisions and conditions hereof and to act as a sales agent as contemplated herein and as described in the Registration Statement, any Preliminary Prospectuses, the Prospectus or any Permitted Free Writing Prospectus. The consummation of the Offering, the execution, delivery and performance of this Agreement by the Agent and the consummation by the Agent of the transactions herein contemplated have been duly and validly authorized by all necessary corporate action on the part of the Agent and this Agreement has been validly executed and delivered by the Agent and is the valid, legal and binding agreement of the Agent enforceable in accordance with its terms, except to the extent, if any, that the provisions of Section 8 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors' rights generally.
+
+5
+
+
+
+
+
+
+
+b. The Agent is registered as a broker-dealer under applicable federal and state laws, is a member in good standing of the National Association of Securities Dealers, Inc., and has met and will continue to meet all registration, licensing, financial and reporting requirements it is required to meet under applicable federal and state laws and regulations in order to provide the services the Agent has agreed to provide, or that the Agent contemplates that it will provide, to the Company under this Agreement or otherwise in connection with the Offering.
+
+c. Each employee, agent, representative or affiliate of the Agent that provides any services to the Company under this Agreement or otherwise in connection with the Offering will, at the time of providing those services, meet all registration and licensing requirements he or it is required to meet under applicable federal and state laws and regulations in order to provide those services.
+
+5. Delivery and Payment.
+
+An escrow procedure shall be established which shall comply with Commission Rule 15c2-4, promulgated under the Exchange Act and applicable NASD rules and regulations, with Flag Bank as escrow agent (the "Escrow Agent").
+
+The Company and the Agent shall transmit all funds received from subscribers to the Escrow Agent by noon of the next business day following receipt thereof. The Company shall direct the Escrow Agent to make payment for Shares sold hereunder by wire transfer or certified or bank cashier's check drawn to the order of the Company in next day funds. Such payment is to be made at the offices of Flag Bank, at 10:00 a.m. local time, on each Closing Date or at another time agreed to by the Agent and the Company. The time of such payment is referred to as the "Closing Time." The Company shall direct the Escrow Agent to deliver payment of the fees due to the Agent pursuant to Section 2 hereof (less any portion thereof previously paid to the Agent) to the Agent by wire transfer or certified or bank cashier's check drawn to the order of the Agent in next day funds, to the Agent on each Closing Date.
+
+6. Covenants of the Company. The Company hereby covenants to the Agent as follows:
+
+a. The Company has filed the Registration Statement with the Commission. The Company will use its best efforts to cause any post-effective amendment to the Registration Statement to be declared effective by the Commission, and will immediately upon receipt of any information concerning the events listed below notify the Agent (i) when the Registration Statement, as amended, has become effective; (ii) of any request by the Commission or any other governmental entity for any amendment or supplement to the Registration Statement; (iii) of the issuance by the Commission or any other governmental agency of any order or other action suspending the Offering or the use of the Registration Statement, the Preliminary Prospectuses, the Prospectus or the Permitted Free Writing Prospectuses, if any; or (iv) of the issuance by the Commission or any state authority of any stop order suspending the effectiveness of the Registration Statement or of the initiation or threat of initiation or threat of any proceedings for that purpose.
+
+b. The Company will deliver to the Agent copies of the Registration Statement, as originally filed and each amendment thereto. Further, the Company will deliver such additional copies of the foregoing documents to counsel to the Agent as may be required for any NASD filings. The Company will also deliver to the Agent such number of copies of the Prospectus, as amended or supplemented, as the Agent may reasonably request.
+
+c. The Company will comply in all material respects with any and all terms, conditions, requirements and provisions with respect to the Offering and the transactions contemplated thereby imposed by the Commission, by applicable state law and regulations, and by the 1933 Act, the Exchange Act and the rules and regulations of the Commission promulgated under such statutes, to be complied with prior to or subsequent to the Closing Date.
+
+6
+
+
+
+
+
+
+
+d. If any event relating to or affecting the Company shall occur, as a result of which it is necessary, in the reasonable opinion of counsel for the Company, to amend or supplement the Registration Statement, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus in order to make them not misleading in light of the circumstances existing at the time of its use, the Company will, at its expense, prepare, file with the Commission, and furnish to the Agent, a reasonable number of copies of an amendment or amendments of, or a supplement or supplements to, the Registration Statement, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus which will amend or supplement the Registration Statement, Preliminary Prospectus, Prospectus or any Permitted Free Writing Prospectus so that as amended or supplemented it will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at the time, not misleading.
+
+e. The Company will endeavor in good faith, in cooperation with the Agent, to register or to qualify the Shares for offering and sale under the applicable securities laws of the jurisdictions in which the Offering will be conducted; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify to do business in any jurisdiction in which it is not so qualified. In each jurisdiction where any of the Shares shall have been registered or qualified as above provided, the Company will make and file such statements and reports in each year as are or may be required by the laws of such jurisdictions.
+
+f. Prior to the Closing Date, the Company will inform the Agent of any event or circumstances of which it is aware as a result of which the Registration Statement, any Preliminary Prospectus, the Prospectus, or any Permitted Free Writing Prospectus as then supplemented or amended, would include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading.
+
+g. The Company will distribute the Prospectus or other offering materials in connection with the offering and sale of the Shares only as set forth in the Prospectus, and only in accordance with the 1933 Act and the Exchange Act and the rules and regulations promulgated under such statutes, and the laws of any state in which the Shares are qualified for sale.
+
+h. The Company will maintain appropriate arrangements with the Escrow Agent for depositing all funds received from persons mailing subscriptions for or orders to purchase Shares in the Offering as described in the Prospectus until the Closing Date and satisfaction of all conditions precedent to the release of the Company's obligation to refund payments received from persons subscribing for or ordering Shares in the Offering as described in the Prospectus.
+
+i. The Company will take such actions and furnish such information as are reasonably requested by the Agent in order for the Agent to ensure compliance with the NASD Rule 2790 "Restrictions on the Purchase and Sale of Initial Equity Public Offerings of Equity Securities."
+
+j. The Company will not deliver the Shares until the Company has satisfied or caused to be satisfied each condition set forth in Section 9 hereof.
+
+7. Covenants of the Agent.
+
+a. The Agent will not provide any service or engage in any activity, and it will not permit the Agent or any of its employees, agents, representatives or affiliates to provide any service or engage in any activity, whether pursuant to this Agreement or otherwise in connection with the Offering, for which it or he does not have in effect all registrations, licenses and approvals necessary to cause that service or activity to comply with applicable federal and state laws and regulations.
+
+b. Notwithstanding anything contained in this Agreement to the contrary, the terms and conditions of the Offering as described in the Prospectus shall control the conduct of the Offering, and
+
+7
+
+
+
+
+
+
+
+neither the Agent nor any of its respective employees, agents, representatives or affiliates shall take any action in connection with the Offering contrary to those terms and conditions.
+
+c. In connection with or during the course of the Offering, neither the Agent nor any employee, agent, representative or affiliate of the Agent will make any representation or provide any information to any subscriber or potential subscriber for the Shares other the representations and information contained in the Prospectus or other information specifically approved by the Company.
+
+8. Payment of Expenses. The Company covenants and agrees with the Agent that it will pay or cause to be paid the following: (i) the fees, disbursements and expenses of counsel to the Company and accountants in connection with the registration of the Shares under the Act and all other expenses in connection with the preparation, printing and filing of the Registration Statement, each Preliminary Prospectus, the Prospectus, each Permitted Free Writing Prospectus and any amendments or supplements thereto, and the mailing and delivering of copies thereof to the Agent and dealers; (ii) the cost of printing or reproducing this agreement, the Blue Sky Survey, any dealer agreements and any other documents in connection with the offering, purchase, sale and delivery of the Shares; (iii) all expenses in connection with the qualification of the Shares for offering and sale under state securities laws; (iv) the cost of preparing stock certificates; (v) all expenses related to road shows; (vi) the costs or expenses of any transfer agent or registrar; and (vi) all reasonable out-of-pocket fees and expenses of the Agent, including the reasonable fees and expenses of counsel for the Agent related to the Offering and not otherwise specifically provided for in this Section; the total for all such reasonable out-of-pocket fees and expenses shall not exceed $5,000 without the consent of the Company (exclusive of any blue sky-related fees if the Agent's counsel is requested to complete such services by the Company).
+
+9. Conditions to Closing. The Closing of the Offering is subject to the following conditions:
+
+a. The Registration Statement and any registration statement required to be filed, prior to the sale of the Shares, under the Act pursuant to Rule 424(b) shall have been filed and shall have become effective under the 1933 Act.
+
+b. (i) No stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Act or proceedings initiated under Section 8(d) or 8(e) of the 1933 Act; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) none of the Preliminary Prospectuses or the Prospectus, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (iv) no Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (v) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
+
+c. The Company and Agent agree that Appendix A is accurate and complete.
+
+d. The NASD has confirmed that it has not raised any objection with respect to the fairness and reasonableness of the terms of this Agreement and Agent's compensation hereunder.
+
+10. Indemnification by the Company.
+
+a. The Company agrees to indemnify and hold harmless the Agent, and its officers, directors, agents, representatives and affiliates and any other person, if any, who controls the Agent or its
+
+8
+
+
+
+
+
+
+
+affiliates within the meaning of the 1933 Act (these parties together with the Agent are hereinafter referred to as the "Agent Indemnitees") against any and all losses, claims, damages, liabilities and expenses (including reasonable costs of investigation and counsel's fees) arising out of or based upon the actions of the Company or any of its employees, agents, representatives or affiliates (i) that constitute bad faith or gross negligence on the part of the Company or its employees, agents, representatives or affiliates, (ii) that constitute violations of applicable federal or state laws or regulations on the part of the Company or its employees, agents, representatives or affiliates, or (iii) that constitute a violation of any of the Company's agreements, representations or warranties contained in this Agreement. The Company will reimburse the Agent and the Agent Indemnitees for any legal or other expenses reasonably incurred (individually or collectively) by it or them in connection with investigating or defending any such loss, claim, damage, liability or action. However, the Company will not be responsible for (i) any losses, claims, damages, liabilities or expenses that result from bad faith or gross negligence on the part of the Agent or any of its employees, agents, representatives or affiliates, or on the part of the Agent Indemnitee, (ii) that arise out of actions or conduct by the Agent or any of its employees, agents, representatives or affiliates, or by any Agent Indemnitee, that constitute a violation of any applicable federal or state law or regulation, or (iii) that arise out of actions or conduct by the Agent or any of its employees, agents, representatives or affiliates, or by any Agent Indemnitee, that constitutes a violation of any of Agent's agreements, representations or warranties contained in this Agreement.
+
+b. If any action or claim shall be brought or asserted against an Agent Indemnitee in respect of which indemnity may be sought from the Company, it or he shall promptly notify the Company in writing, enclosing copies of all papers served on or delivered to such party. A failure to notify or delay in notifying the Company shall not affect the right of the Agent Indemnitee to be indemnified or reimbursed hereunder except to the extent the Company is shown to have been materially prejudiced as a result of such failure. No Agent Indemnitee shall settle, compromise or consent to the entry of any judgment with respect to any litigation, investigation or proceeding commenced or threatened by any person or entity, including any governmental agency or body, or any claim whatsoever in respect of which indemnification or contribution can be sought under this Section 10 (whether or not the Agent Indemnitees are actual or potential parties thereto), unless the Agent or the Agent Indemnitee obtains the prior written consent of the Company.
+
+11. Indemnification by the Agent.
+
+a. The Agent agrees to indemnify and hold harmless the Company, and its officers, directors, agents, organizers, representatives and affiliates and any other person, if any, who controls the Company or its affiliates within the meaning of the 1933 Act (these parties together with the Company are hereinafter referred to as the "Company Indemnitees") against any and all losses, claims, damages, liabilities and expenses (including reasonable costs of investigation and counsel's fees) arising out of or based upon the actions of the Agent or any of its respective employees, agents, representatives or affiliates (i) that constitute bad faith or gross negligence on the part of the Agent or any of its employees, agents, representatives or affiliates, (ii) that constitute violations of applicable federal or state laws or regulations on the part of the Agent or any of its employees, agents, representatives or affiliates, or (iii) that constitutes a violation of any of the Agent's agreements, representations or warranties contained in this Agreement. The Agent will reimburse the Company and the Company Indemnitees for any legal or other expenses reasonably incurred (individually or collectively) by it or them in connection with investigating or defending any such loss, claim, damage, liability or action. However, the Agent will not be responsible for (i) any losses, claims, damages, liabilities or expenses that result from bad faith or gross negligence on the part of the Company or any of its employees, agents, representatives or affiliates, or on the part of the Company Indemnitee, (ii) that arise out of actions or conduct by the Company or any of its employees, agents, representatives or affiliates, or by the Company, that constitute a violation of any applicable federal or state law or regulation, or
+
+9
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+(iii) that constitutes a violation of any of the Company's agreements, representations or warranties contained in this Agreement.
+
+b. If any action or claim shall be brought or asserted against a Company Indemnitee in respect of which indemnity may be sought from the Agent, it shall promptly notify the Agent in writing, enclosing copies of all papers served on or delivered to such party. A failure to notify or delay in notifying the Agent shall not affect the right of the Company Indemnitee to be indemnified or reimbursed hereunder except to the extent the Agent is shown to have been materially prejudiced as a result of such failure. No Company Indemnitee shall settle, compromise or consent to the entry of any judgment with respect to any litigation, investigation or proceeding commenced or threatened by any person or entity, including any governmental agency or body, or any claim whatsoever in respect of which indemnification or contribution can be sought under this Section 11 (whether or not the Company Indemnitees are actual or potential parties thereto), unless the Company obtains the prior written consent of the Company.
+
+c. The Agent agrees to indemnify and hold harmless the Company Indemnitees against any and all losses, liabilities, claims, damages and expenses to which it or they may become subject if such losses, liabilities, claims, damages or expenses arise solely out of, or are based solely on, (i) any untrue or alleged untrue statement of material fact contained in the Prospectus or any amendment or supplement thereto, or the omission of a material fact required to be stated therein, or necessary to make the statements therein not misleading, but only if such untrue statement or omission or alleged omission was made in the Prospectus (as amended or supplemented) based upon and in conformity with written information concerning the Agent furnished to the Company by the Agent specifically for use in the Prospectus or (ii) any untrue or alleged untrue statement of material fact contained in any other information (whether oral or in writing) provided by the Agent or any of its respective employees, agents, representatives or affiliates to the Company or any other person in the course of providing services pursuant to this Agreement or otherwise in connection with the Offering.
+
+12. Representations and Indemnities to Survive. All representations, warranties and agreements contained in this Agreement of the Company and the Agent shall remain in full force and effect, regardless of any termination or cancellation of this Agreement, and shall survive delivery of and payment for the Shares.
+
+13. Termination and Payment of Expenses. This Agreement shall become effective on the date hereof and shall terminate upon the termination of the Offering. If for any reason any Shares are not delivered by or on behalf of the Company as provided herein, the Company will reimburse the Agent for all actual and accountable out-of-pocket expenses, including fees and disbursements of counsel, reasonably incurred by the Agent in making preparations for the purchase, sale and delivery of the Shares not so delivered, but the Company shall then be under no further liability to the Agent except as provided in Section 8 and Section 10 hereof.
+
+10
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+
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+14. Notices. All statements, requests, notices and agreements hereunder shall be in writing and shall be sufficient in all respects if delivered or sent by reliable courier, first class mail, or facsimile transmission to:
+
+    Agent:   As set forth on the signature page to this agreement
+
+  Company:   El Banco Financial Corporation 623 Holcomb Bridge Road Roswell, Georgia 30076 Facsimile: (678) 352-1514
+
+    With a copy to: Nelson Mullins Riley & Scarborough LLP 999 Peachtree Street, Suit 1400 Atlanta, Georgia 30309 Attention: Rusty Pickering Facsimile: (404) 817-6050
+
+Any such statements, requests, notices or agreements shall take effect upon receipt thereof.
+
+15. Non-Exclusive. This Agreement does not create an exclusive arrangement for the Agent to provide services to the Company, and nothing in this Agreement shall preclude the Company from contracting or entering into an arrangement with any other sales agent, consultant, broker-dealer or other person for such other person or entity to provide services to the Company as agent in the Offering and to receive compensation from the Company in connection with the Offering.
+
+16. Successors. This Agreement shall be binding upon, and inure solely to the benefit of, the Agent and the Company, and to the extent provided in Sections 10, 11 and 12 hereof; the officers and directors of the Company and each person who controls the Company, or the Agent, and their respective heirs, executors, administrators, successors and assigns, and no other person shall acquire or have any right under or by virtue of this agreement. No purchaser of any of the Shares from the Agent shall be deemed a successor or assign by reason merely of such purchase.
+
+17. Time of the Essence. Time shall be of the essence in this Agreement.
+
+18. Business Day. As used herein, the term "business day" shall mean any day when the Commission's office in Washington, D.C. is open for business.
+
+19. Applicable Law. THIS AGREEMENT IS TO BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF GEORGIA (WITHOUT REGARD TO THOSE LAWS RELATING TO CHOICE OF LAW) APPLYING TO CONTRACTS ENTERED INTO AND TO BE PERFORMED WITHIN THE STATE OF GEORGIA. VENUE FOR ANY CAUSE OF ACTION ARISING FROM THIS AGREEMENT WILL LIE IN FULTON COUNTY, GEORGIA.
+
+20. Captions. The captions included in this Agreement are included solely for convenience of reference and shall not be deemed to be a part of this Agreement.
+
+21. Counterparts. This Agreement may be executed by any one or more of the parties in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same instrument.
+
+22. Pronouns. All pronouns used herein shall be deemed to refer to the masculine, feminine or neuter gender as the context requires.
+
+[Signatures on Following Page]
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+ IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be executed on its behalf by its duly authorized officers as of the day and year first above written.
+
+    EL BANCO FINANCIAL CORPORATION
+
+  By:       Name: Its:
+
+
+
+
+
+(SALES AGENT)       By:         Name: Its:     Address:
+
+12
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+
+
+
+
+
+
+     Appendix A
+
+Name of Investor
+
+
+
+Amount of Investment
+
+13
+
+
+
+
+
+QuickLinks
+
+EL BANCO FINANCIAL CORPORATION AGENCY AGREEMENT Appendix A