Designates portions of this document have been omitted pursuant to a request for confidential treatment filed separately with the Commission] LICENSE AND DISTRIBUTION AGREEMENT
Exhibit
10.3
[*Designates
portions of this document have been omitted pursuant to a request for
confidential
treatment filed separately with the Commission]
This
License and Distribution Agreement (“Agreement”)
is
made to be effective as of June 22, 2007 (“Effective
Date”)
by and
between NutraCea, a California corporation, with principal offices located
at
0000 Xxxxx 00xx
Xxxxxx,
Xxxxx 000, Xxxxxxx, Xxxxxxx 00000 (“NutraCea”),
and
Pacific Advisors Holdings Limited, a company incorporated under the laws of
British Virgin Islands, with principal offices at _______________
(“Licensee”).
The
parties agree as of the Effective Date as follows:
1. Background
and Purpose.
1.1. Licensee.
Licensee and its affiliates have relationships with rice xxxxx in the Republic
of Indonesia, Vietnam, Thailand, Malaysia, Australia, New Zealand and Singapore
(the “Territory”).
1.2. NutraCea.
NutraCea owns rights to the stabilized rice bran products for human and animal
consumption more fully described on Exhibit
A,
attached
hereto (the “Products”).
The
Products are distributed under trademarks and trade names having valuable
reputation and good will that belong exclusively to NutraCea. NutraCea actively
promotes its Products and requires an effective distribution network.
1.3. Joint
Entity.
Licensee is a member of Grain Enhancement LLC (the “Joint
Entity”),
a
limited liability company formed under the laws of the State of Delaware for
the
sole purpose of establishing and operating one or more Product manufacturing
facilities in the Territory. In order to commercialize and distribute the
Products in the Territory, Licensee wishes to obtain the License granted under
this Agreement, and to then sublicense to the Joint Entity the License and
the
distribution rights granted under this Agreement, under the terms and conditions
set forth hereunder.
1.4. License;
Supply
of Materials and Distribution of Products. NutraCea
and Licensee wish to enter into an agreement in which NutraCea grants Licensee
an exclusive and assignable license to utilize NutraCea’s
proprietary stabilization equipment and all of NutraCea’s associated
patents,
patent applications, copyrights, trade secret, know how or other intellectual
property related to the production
of the Products (collectively
the “Intellectual
Property”)
as
provided herein. Notwithstanding
the foregoing, all rights to produce, operate and maintain such equipment shall
remain with NutraCea.
2. License.
2.1. Grant
of License; Right to Sublicense.
NutraCea
hereby grants to Licensee the sole, exclusive (even as to NutraCea),
[*]
right
and license (“the License”)
to
make, use, lease, have made, sell, offer for sale, distribute, and otherwise
commercialize the Products within the Territory and a limited right to use
the
Intellectual Property solely for such purposes, subject in all cases to the
terms and conditions contained herein. Notwithstanding anything to the contrary
herein, NutraCea expressly retains the right to install, operate and maintain
NutraCea’s stabilization equipment at Licensee’s facilities in the Territory in
accordance with the terms of the Rice Bran Stabilization Equipment Lease between
the parties of equal date herewith. [*]
Licensee
may grant sublicenses under the License; provided, that any such sublicense
shall be subject to and consistent in all respects with the terms and provisions
of this Agreement. The License shall be irrevocable while this Agreement is
in
effect.
2.2.1 Sublicense
to Joint Entity.
NutraCea hereby expressly authorizes Licensee to grant a sublicense (the
“Sublicense”)
of the
License to the Joint Entity on such terms to be agreed to by Joint Entity and
Licensee; provided,
however,
that
the License Fee payable by Licensee to NutraCea shall not be assignable to
the
Joint Entity or any other third party, and that the obligation to pay the
License Fee shall remain the exclusive obligation of Licensee.
2.2.2. Assignment
to Joint Entity.
The
parties hereto acknowledge that the Joint Entity may in the future seek to
raise
additional capital to increase its ability to commercialize the Products in
the
Territory by means of a public offering or private placement, or may seek to
sell the Joint Entity or its assets, and further acknowledge that in connection
with any such transaction, the Joint Entity will, in all likelihood, have to
acquire the License. The parties further agree that any such fundamental
transaction would be in the best interests of both parties to this Agreement
and, therefore, that it is in their mutual best interests that Licensee have
the
ability and authority to assign this License to the Joint Entity as provided
herein. No such assignment shall limit or reduce the obligation of Licensee
to
pay to NutraCea the License Fee specified in Section 8. Accordingly, NutraCea
hereby agrees that if (A) the Joint Entity effects an underwritten public
offering in which it or its successor receives gross proceeds equal to or
greater than [*]
U.S.
Dollars ($ [*]),
(B)
the equity securities of the Joint Entity become listed or publicly traded
on
any of The Nasdaq Stock Market, the New York Stock Exchange, the American Stock
Exchange, the London Stock Exchange, the Indonesia Stock Market, the
Over-the-Counter Bulletin Board, or any other recognized stock exchange; (C)
the
Joint Entity completes a private equity offering in which the gross proceeds
are
equal to or greater than [*]
U.S.
Dollars ($[*]);
or (D)
the Joint Entity completes a merger, consolidation or reorganization with or
into any other entity or entities, or a sale of all or substantially all of
its
assets, then, notwithstanding Section 12.1, Licensee shall be permitted to
assign the entire License, and all of Licensee’s rights thereunder, to Joint
Entity, provided that at the time of the assignment the Joint Entity pays
NutraCea an additional one-time license fee of [*]
U.S.
Dollars ($ [*])
(“Assignment
Fee”).
Licensee
may not, however, delegate its obligations to pay the License Fee under Section
8 to the Joint Entity, nor shall the guarantor under the guaranty listed in
Section 8.1 be relieved from its obligations to NutraCea as a result of the
foregoing assignment.
2.2. Scope
of License.
NutraCea expressly reserves all rights to use, market, and commercialize and
sell the Products under the same or similar names outside of the Territory.
NutraCea
reserves the right to use and license the Intellectual Property for
use
outside
of the Territory. Nothing contained herein is intended to restrict or prevent
NutraCea from selling or licensing products with similar or identical
formulations outside of the Territory.
2.3. Reserved
Rights.
All
rights not granted to Licensee
hereunder
are specifically reserved and retained by NutraCea.
2.4. Reserved
Trademarks. Licensee
acknowledges
that NutraCea has previously granted to various third parties, rights to market
the Products under various other trade names outside of the Territory.
Licensee
agrees
that it shall have no rights with regard to such trademarks and that the License
shall not prevent or interfere in any manner with the continued rights of
such
third
parties and NutraCea to use and commercialize products under such trademarks.
Licensee
agrees
that it will not sell or market or distribute any products bearing any other
NutraCea trademarks.
Licensee
agrees that all Products distributed under this Agreement within the Territory
will acknowledge the existence of the License and NutraCea as the licensor
by
including the licensed marks (and associated logo) specified by NutraCea from
time to time in exactly in the form provided by NutraCea on the packaging and
in
conformance with any and all reasonable usage policies provided to Licensee
by
NutraCea from time to time.
2.5
NutraCea’s
Representations.
NutraCea warrants and represents that:
(a) the
execution and delivery by NutraCea of this Agreement do not, and compliance
by
NutraCea with the provisions hereof will not, (A) conflict with or result in
a
breach or default under any of the terms, conditions or provisions of any
license or other contract to which NutraCea is a party; or (B) violate any
law
applicable to NutraCea;
(b) the
use
of the Intellectual Property by Licensee and the Joint Entity in accordance
with
this Agreement will not infringe the rights of any individual, corporation,
partnership, association, limited liability company, trust, estate or other
entity (a “Person”);
and
(c) no
Person
(including any affiliate of NutraCea) other than Licensee has the right to
use,
or license other Persons to use, the Intellectual Property in the Territory,
and
NutraCea will not use the Intellectual Property in the Licensed
Territory.
2.6 Licensee’s
Representations.
Licensee warrants and represents that the execution and delivery by Licensee
of
this Agreement do not, and compliance by Licensee with the provisions hereof
will not, (i) conflict with or result in a breach or default under any of the
terms, conditions or provisions of any license or other contract to which
Licensee is a party; or (ii) violate any law applicable to Licensee.
2.7 Competing
Products and Equipment.
In
consideration for the grant of the License, Licensee hereby agrees that
for
the
term of [*],
Licensee shall not produce or attempt to produce any equipment for the
stabilization of rice bran, and that Licensee shall only use the rice bran
stabilization technologies or equipment manufactured and supplied by
NutraCea.
3. Ownership
and Use of Intellectual Property.
3.1. NutraCea’s
Ownership in the Intellectual Property.
Licensee acknowledges
that NutraCea owns the Intellectual Property and all rights, title, and interest
therein other than the License granted hereunder, and that nothing in this
Agreement shall give Licensee
any
right, title or interest in or to the Intellectual Property other than pursuant
to the License granted herein. Notwithstanding anything to the contrary,
Licensee
shall
not: (i) take any action inconsistent with NutraCea’s ownership of the
Intellectual Property; or (ii) sell, distribute, assign or otherwise transfer
to
any third party or encumber the Intellectual Property, except as expressly
permitted herein; or (iii) use or sell any Products or other items licensed
hereunder outside of the Territory. [*]
3.2. Obligation
to Protect.
Licensee shall use reasonable efforts to protect NutraCea’s proprietary rights
in and to the Intellectual Property in the Territory and, at its own expense,
shall reasonably cooperate in NutraCea’s efforts to protect its proprietary
rights in and to the Intellectual Property. Licensee shall notify NutraCea
of
any known or suspected breach of NutraCea’s proprietary rights that comes to
Licensee’s attention.
3.3. Confidentiality.
Licensee acknowledges that in the course of performing its obligations
hereunder, it will receive information which is confidential and proprietary
to
NutraCea. Licensee agrees not to use such information except in performance
of
this Agreement and not to disclose such information to third parties. All
information that is given to Licensee by NutraCea will be treated as
confidential and will not be disclosed to any other party. In addition, Licensee
will receive, pursuant to this Agreement, certain financial and/or marketing
information from NutraCea. Licensee shall not disclose this information to
any
third party without the prior written consent of NutraCea. At all times herein,
Licensee shall treat such information as it would its own proprietary
information.
4. Quality
Control.
4.1. Adherence
to Quality Standards.
Licensee
agrees
that the nature and quality of all goods and services provided by Licensee
in
connection with the use of the Intellectual Property shall conform to the
standards set by Licensee
for
its
own goods and services (“Quality
Standards”).
Such
Quality Standards shall be reasonable, shall be no less than the quality
standards imposed by NutraCea in general, and shall be at least equal in quality
to Licensee’
goods
and services prior to the Effective Date.
4.2. Limitations
on Use.
All
uses of the Intellectual Property shall be in accordance with the provisions
of
this Agreement and Licensee
shall
not
use the Intellectual Property in any manner that is inconsistent with the scope
of the License.
5. Authorized
Distributor.
In
addition to granting the License, NutraCea hereby authorizes Licensee to act
as
an independent, exclusive distributor for the sale and marketing of Products
manufactured by NutraCea and sold to Licensee or the Joint Entity for re-sale
in
the Territory. The right of Licensee, or the Joint Entity if Licensee desires
to
distribute NutraCea’s Products through the Joint Entity, to distribute Products
manufactured by NutraCea shall be limited to sales conducted the Republic of
Indonesia, Vietnam, Thailand, Malaysia, and Singapore. Notwithstanding anything
to the contrary contained herein, the rights of Licensee with respect to the
sale and marketing of Products in Australia and New Zealand shall not commence
until the Joint Entity has completed and commenced operating manufacturing
facilities in the Territory for the production of stabilized rice bran at a
level sufficient to immediatley ship stabilized rice bran in sufficient
quantities to service Australia and New Zealand. Licensee, or if applicable
the
Joint Entity, may market and distribute Products it purchases from NutraCea
only
as set forth in this Agreement. Licensee further agrees not to distribute or
market any items competitive with the Products or to distribute the Products
for
sale outside of the Territory. NutraCea agrees that the activities of Licensee
and its affiliates in connection with producing, distributing and selling wheat
flour that
does
not contain rice bran shall not be deemed to be a competitive activity. This
distribution right shall continue for the term of this Agreement.
6. Obligations
of the Parties.
In
furtherance of this Agreement, each party shall be responsible for the
following, each of which is a material obligation of that party hereunder:
6.1. Obligations
of Licensee or its Sublicensee.
6.1.1. Regulatory
Approval of Products.
Licensee or the Joint Entity shall submit all appropriate applications and
materials necessary to obtain regulatory approval required for the sale of
the
Products in the Territory upon NutraCea’s delivery of all the required technical
data and appropriate documents for product registration to
Licensee.
6.1.2. Marketing
and Advertising Products.
Licensee or the Joint Entity shall use commercially reasonable efforts to sell
the Products in the Territory. Licensee or the Joint Entity shall advertise
and
otherwise promote the Products in a commercially reasonable manner and shall
transmit appropriate Product information and promotional materials to its
customers. Licensee or the Joint Entity shall develop sales, marketing,
advertising and packaging for the Products for distribution in the Territory.
Licensee or the Joint Entity will include the Products in one or more of its
marketing materials and otherwise make the Products available to its customers.
6.1.3. Facilities;
Conduct of Business.
Licensee represents and warrants to NutraCea that, within [*]
months
after the date of this Agreement, it or the Joint Entity shall establish and
thereafter maintain a minimum of [*]
necessary
to perform its functions and to carry out its obligations under this Agreement.
Licensee or the Joint Entity shall (i) conduct its business in a professional
manner that reflects favorably on NutraCea and the Products, (ii) take all
action necessary to prevent and avoid deceptive, misleading or unethical
practices, (iii) make no false or misleading representations with regard to
NutraCea or the Products, (iv) not publish or participate in the publishing
of
any false, misleading or deceptive advertising material, and (v) make no
representations, warranties or guaranties to anyone with respect to the
specifications, features or capabilities of the Products that are inconsistent
with the literature distributed by NutraCea.
6.1.4. Reports
and Records.
If
requested by Nutracea, Licensee shall submit to NutraCea monthly sales reports
that shall include sales of the Products from all of Licensee’s locations
detailed by Product (units and dollars). Licensee shall provide this report
to
NutraCea no later than the tenth (10th) day of the following month. Licensee
shall maintain these records for at least [*]
years
from the date of creation of each record, contract and account as well as
contracts and accounts relating to distribution of all Products, and will permit
examination thereof by authorized representatives of NutraCea at all reasonable
times for the purposes of an audit.
6.1.5. Resale
Prices.
Licensee or the Joint Entity shall be free to unilaterally determine the resale
prices for the Products. Licensee or the Joint Entity shall, however, treat
all
customers equitably and shall not discriminate unlawfully among them in prices,
terms or in any other manner. Neither Licensee nor the Joint Entity may sell
or
market any Products in the United States or any other area outside of the
Territory, directly or indirectly, without NutraCea’s express prior written
consent.
6.1.6. Product
Training.
Representatives of Licensee or the Joint Entity shall attend all training
seminars relating to the Products provided by NutraCea to enhance Licensee’
knowledge of the Products, at Licensee’s expense. Licensee or the Joint Entity
shall provide sufficient Product training to their sales personnel and customers
to further the sale of Products.
6.1.7. Notification.
Licensee will notify NutraCea in writing of any claim or proceeding involving
the Products no later than ten (10) days after Licensee learns of such claim
or
proceeding. Licensee shall also report promptly to NutraCea in writing all
claimed or suspected Product defects received by Licensee.
6.1.8. Compliance
with Law.
Licensee and the Joint Entity shall comply with all applicable laws and
regulations in performing its duties hereunder and in any of its dealings with
respect to the Products.
6.2. Obligations
of NutraCea.
6.2.1. Products
Technical Data.
NutraCea shall provide Licensee with all required documentation and data sheets
for each of the Products necessary for production and registration approvals.
6.2.2. Sample
Products.
NutraCea shall ship samples of the Products to the Licensee, the Joint Entity
or
any of their respective current or potential customers.
6.2.3. Training
and Support; Advertising Materials.
NutraCea shall provide to Licensee or the Joint Entity that amount of training
and support that NutraCea deems appropriate to enable Licensee or the Joint
Entity to sell the Products. NutraCea shall provide Licensee with existing
documentation and technical information on the Products.
6.2.4 No
Competing Products in Territory.
NutraCea currently manufactures and sells the Products in other countries
outside of the Territory. In addition, NutraCea may hereafter license or
otherwise grant the right to manufacture, sell, distribute or otherwise
commercialize the Products outside of the Territory to other entities, including
joint ventures or entities in which NutraCea has an economic interest (any
entity, other than the Licensee, that receives from NutraCea, directly or
indirectly, a license or other right to manufacture, sell, distribute or
otherwise commercialize the Products or to otherwise exploit the Intellectual
Property is herein referred to a “NutraCea Rights Holder”). NutraCea hereby
agrees that neither it, nor any NutraCea Rights Holder shall have or be granted
the right at any time during the term of this Agreement, directly or indirectly,
to (i) import any Competing Product into the Territory, or (ii) sell or
distribute a Competing Product to person or entity with knowledge that such
person or entity may thereafter import into the Territory any Competing Product.
NutraCea agrees that any agreement that it hereafter enters with any NutraCea
Rights Holder shall prohibit the importation of a Competing Product into the
Territory. NutraCea further agrees that, if any NutraCea Rights Holder is found
to be importing, directly or indirectly, any Competing Product into the
Territory, it will use its commercially reasonable efforts to enforce the
prohibition in its agreements to terminate and prevent the importation of any
Competing Product into the Territory. For the purposes of this Agreement, a
“Competing Product” means (x) any Product, or (y) any substance, material or
product that when sold in bulk contains or any Product. For example, the
importation of SRB into the Territory by a NutraCea Rights Holder shall be
prohibited. Likewise, the importation of wheat flour blended with stabilized
rice bran is a Competing Product and is prohibited. However, the importation
into the Territory of bakery products that are made from wheat flour blended
with stabilized rice bran is not Competing Product and is therefore, not
prohibited.
7. Term
and Termination.
7.1. Term.
The
License granted herein is [*]
for
the
Territory. The distribution rights and obligations set forth in Section 5 shall
terminate as set forth in Section 5.
7.2. Termination
Rights
for
Breach.
Either
Party may terminate this Agreement, upon written notice following the expiration
of a thirty
(30)
day
period to cure, in the event of any of the following: (i) the other party
materially breaches this Agreement (including each party’s respective
representations in Sections 2.5 and 2.6);
(ii)
the
other party suspends or terminates its business; or (iii) the other party
becomes subject to any bankruptcy or insolvency proceedings that are not
dismissed within ninety (90) days after such proceedings are instituted.
Notwithstanding the foregoing, any uncured breach under subsection 7.2(i) shall
be grounds for terminating this Agreement only
if
such
a
default materially and adversely affects the other party, its business or
assets.
7.3. Effect
of Termination.
Upon
termination of this Agreement, Licensee’s
right
to use the Intellectual Property shall be terminated, Licensee
or the Joint Entity shall
have 180 days to phase out all use of the Intellectual Property and to sell
all
remaining inventory of the Product. Termination of this Agreement shall in
no
way affect the rights or liabilities of either NutraCea or Licensee
arising
during the period prior to such termination or expiration, or release a party
from the obligation to make any payment due and owing to the other under this
Agreement, all of which obligations the party hereby agrees to fulfill and
perform. In no event shall Licensee
be
entitled to any refund, offset, or return of any portion of the License Fee
(defined below) upon termination, and any unpaid portion of the balance of
the
License Fee shall remain due and owing to the extent provided in Section 8.
Each
party shall return to the other all tangible materials and information of a
proprietary or confidential nature disclosed to the party under this Agreement,
and all copies thereof (including, without limitation, all electronic
copies.)
8. License
Fee; Guaranty.
8.1. License
Fee Amount; Schedule of Payments.
As
consideration for the License and rights granted herein, Licensee
shall
pay NutraCea
a fully
paid up, one-time (other than with respect to the Assignment Fee) license
fee of Five Million U.S. Dollars ($5,000,000) (“License
Fee”).
The
License Fee shall accrue interest from the Effective Date until paid in full
at
a rate equal to 4.51863% per annum (the LIBOR rate in effect as of June 15,
2007, as quoted in the London edition of the Financial Times). The accrued
and
unpaid interest and the License Fee shall both be due all due and payable by
Licensee
on the
fifth anniversary of the commencement of stabilized rice bran production by
the
first rice bran stabilization facility established by Licensee or the Joint
Venture.
All
payments shall be in U.S. Dollars. In order to secure Licensee’s obligations to
pay the License Fee and related interest, Licensee shall cause the Guaranty
in
the form set forth in Exhibit
C
hereto
be executed by a party acceptable to NutraCea.
8.2. Non-Assignable
Obligation.
As set
forth in Section 2, Licensee may sublicense its rights hereunder to the Joint
Entity; however the License Fee shall be the obligation of Licensee and shall
not be delegable.
9. Protection.
9.1. Infringement.
Licensee agrees
to
promptly notify NutraCea of any infringements, imitations, simulations or other
illegal use or misuse of the Intellectual
Property which
come to Licensee’s
attention. Licensee shall
have the first right to institute and prosecute at its own expense suit for
infringement(s)
of
the Intellectual Property in the Territory. NutraCea agrees to join as a party
plaintiff in any such lawsuit initiated by Licensee,
if
requested by Licensee,
with
all costs,
attorneys’
fees and expenses to be paid by Licensee.
However,
if
Licensee does
not
institute suit for material infringement(s) within one hundred eighty (180)
days
of receipt of written notice from NutraCea of NutraCea’s desire to bring suit
for infringement
of the
Intellectual Property in
the
Territory in its own name and on its own behalf,
then
NutraCea may institute and prosecute such suit, at its own expense Licensee.
In this
event, Licensee shall
cooperate
in such
action with NutraCea,
at
NutraCea’s expense,
including, without limitation, joining as a party. Any money recovered by way
of
damages or otherwise with respect to such action shall be kept by the party
which bore the cost of such action; or, in any case, where the parties have
shared the cost, such money shall be shared in proportion to the cost borne
by
each party.
9.2. Assistance.
The
parties shall provide each other with all reasonable assistance in connection
with any matter pertaining to the protection, enforcement or infringement of
the
Intellectual
Property used
by
Licensee, whether in the courts, administrative or quasi-judicial agencies,
or
otherwise.
10.
Indemnity.
10.1 Indemnity
by Licensee.
Licensee agrees to indemnify, defend, and hold harmless (including costs and
attorneys’ fees) NutraCea and all of its officers, directors, employees and
agents from and against (a) any breach by Licensee of any representation,
warranty or agreement made in this Agreement, and (b) any and all claims by
any
third party resulting from Licensee’s acts, omissions or misrepresentations. In
the event any Claim is brought against NutraCea which Claim, if determined
adversely would entitle NutraCea to
indemnity, the party with notice of the Claim shall provide notice to the other
party specifying in detail the basics for the Claim and the facts pertaining
thereto, Licensee shall vigorously defend such Claim and indemnify and hold
harmless NutraCea from and against all liability, loss, damage, cost or expense
arising therefrom. NutraCea, as applicable, shall have the right to employ
counsel separate from counsel employed by Licensee in any such action and to
participate in the defense thereof, provided that the fees and expense of such
additional counsel shall be paid by NutraCea.
10.2 Indemnity
by NutraCea.
NutraCea agrees to defend, indemnify and hold Licensee or the Joint Entity
and
all of their respective officers, directors, employees and agents harmless
from
and against any and all claims, damages, liabilities, costs and expenses,
including reasonable legal fees, arising out of (a) any breach by NutraCea
of
any representation, warranty or agreement made in this Agreement; and (b) any
claim that Licensee’s (or the Joint Entity’s) sale of the Products or the use of
the Intellectual Property in accordance with this Agreement infringes on or
violates the rights of any Person; provided however that NutraCea is under
no
obligation to defend, indemnify or hold Licensee or the Joint Entity harmless
from any claim by any governmental body that use of the Intellectual Property
infringes or violates the rights of such governmental body. Licensee shall
give
prompt written notice, cooperation and assistance to NutraCea in respect of
any
such claim, provided that the failure to give prompt notice shall not affect
NutraCea’s indemnification obligation, except to the extent NutraCea is
prejudiced by such failure. Licensee shall have the option to undertake and
conduct the defense and/or settlement of any such claim or proceedings provided
that no settlement of any such claim shall be made without the prior written
consent of NutraCea.
11.
Relationship
of the Parties.
Nothing
contained herein shall be construed to make Licensee the agent of NutraCea
or
NutraCea the agent of Licensee for any purpose, except as specifically set
forth
herein, and neither party shall have any right whatsoever to incur any
obligations on behalf of or binding upon the other party, except as specifically
set forth herein. Licensee agrees that at all times it shall solicit orders
for
the Products as an independent contractor in accordance with the terms of this
Agreement and that it shall not at any time represent orally or in writing
to
any person or entity that it has any right, power or authority not expressly
granted by this Agreement.
12.
Miscellaneous.
12.1.
Assignment. This
Agreement and the License herein granted shall be binding upon and inure to
the
benefit of the successors-in-interest of the respective parties. Neither this
Agreement nor any interest hereunder shall be assignable by either party without
the written consent of the other; provided, however, that either may assign
this
Agreement, or any part of its rights and obligations hereunder, to any Affiliate
or to any corporation or entity with which such party may merge or consolidate,
or to which it may transfer all or substantially all of its assets to which
this
Agreement relates, without obtaining the consent of the other
party.
12.2.
Notices.
All
notices required hereunder shall be sent by certified mail return receipt
requested, express courier with a nationally recognized courier service or
by
telex confirmed by such certified mail, to the party to be notified at its
following address or at such other address as shall have been specified in
written notice from the party to be notified.
If
to
NutraCea:
NutraCea
0000
Xxxxx 00xx
Xxxxxx,
Xxxxx 000
Xxxxxxx,
XX 00000
Attn:
Xxxx Xxxxx
With
a
copy to:
Xxxxxxxxx
Genshlea Chediak Law Corporation
000
Xxxxxxx Xxxx, Xxxxx 0000
Xxxxxxxxxx,
XX 00000
Attn:
Xxxxx Xxxxxxx
If
to
Licensee:
Pacific
Holding Advisors Limited
00
Xxxxxxxxx Xxxx
Xxxxxxxxx
Xxxxx #00-00
Xxxxxxxxx
000000
Singapore
With
copy
to:
Xxxx
& Xxxxx
0000
Xxxxxxx Xxxx Xxxx, 00xx Xxxxx
Xxx
Xxxxxxx, Xxxxxxxxxx 00000
Attn:
Xxxxxx Xxxxx
12.3.
Entire
Agreement.
The
foregoing (including the agreements and exhibits referenced herein) is the
parties’ entire agreement, superseding all prior oral or written agreements and
understandings with respect to the subject matter hereof. The terms set forth
herein shall be severable and the failure of any distinct part will not void
the
remainder.
12.4.
Modification
and Amendment.
This
Agreement may be modified or amended only in writing and signed by both parties.
12.5.
Survival.
The
provisions of this Agreement that by their terms or context are intended to
survive termination of this Agreement, shall so survive the termination of
this
Agreement.
12.6.
Governing
Law.
The
parties agree that this Agreement shall be governed by the laws of the State
of
California. Licensee and NutraCea expressly agree that any action at law or
in
equity arising under this Agreement shall be filed only in the Courts of the
State of California in a county of competent jurisdiction or the United States
District Court in a California district of competent jurisdiction. The parties
hereby consent and submit to the personal jurisdiction of such courts for the
purposes of litigating any such action.
12.7.
Recovery
of Legal Fees and Costs.
In the
event any litigation is brought by either party in connection with this
Agreement, the prevailing party in such litigation shall be entitled to recover
from the other party all the costs, attorneys' fees and other expenses incurred
by such prevailing party in the litigation.
12.8.
Counterparts.
This
Agreement may be signed in one or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the
same
Agreement.
12.9.
Binding
Agreement.
This
Agreement shall be binding upon and inure to the benefit of each of the parties
hereto, and their respective legal successors and assigns.
12.10. Waiver.
Performance of any obligation required of a party hereunder may be waived only
by a written waiver signed by the other party, which waiver shall be effective
only with respect to the specific obligation described therein.
12.11. Severability.
If one
or more provisions of this Agreement are held to be unenforceable under
applicable law, such provision shall be excluded from this Agreement and the
balance of the Agreement shall be interpreted as if such provision were so
excluded and shall be enforceable in accordance with its terms.
12.12. Publicity.
Neither
party shall the
terms
of
this Agreement or make any public announcement regarding this Agreement or
the
subject matter contained herein without the prior written consent of the other
party, except as may be required by applicable law, in which event, the
disclosing party shall endeavor to give the non-disclosing party prompt notice
in order to allow the non-disclosing party the opportunity to seek a protective
order.
Notwithstanding
any of the foregoing to the contrary, the existence of this Agreement may be
disclosed to a third party and the terms and conditions of this Agreement may
be
disclosed by a party to bona fide potential investors, acquirors or partners
of
such party in the course of such person’s due diligence investigation of such
party, where such person has entered into a written non-disclosure agreement
with such party that includes terms no less restrictive than those included
herein.
12.13. Time. Time
is
of the essence in this Agreement.
12.14
Further
Action.
The
parties agree to take all action necessary or useful to complete and accomplish
the intentions of this Agreement.
[SIGNATURE
PAGE TO FOLLOW]
The
authorized representatives of the parties have executed this Agreement as
of the
Effective Date
|
NutraCea:
|
Pacific Advisors Holdings Limited: |
| By: | By: | |||
| Title: | Title |
[SIGNATURE
PAGE TO LICENSE AGREEMENT]
Exhibit
A
Products
Exhibit
B
Products
Literature
Exhibit
C
Guaranty
