Deed of Acknowledgement relating to Intellectual Property
Exhibit 10.6
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Deed
of Acknowledgement relating to Intellectual
Property
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DEED OF
ACKNOWLEDGEMENT RELATING TO INTELLECTUAL PROPERTY
Date: September
3, 2009
PARTIES
Between
Cullen Investments Limited, a
company incorporated in New Zealand with registered company number 663610 and
its wholly owned subsidiary Cullen Inc Holdings Limited, a
company incorporated in New Zealand with registered company number 967310
(together,
Cullen).
Cullen Agricultural Technologies, Inc
(CAT), a
company incorporated in Georgia, United States of America with control number
09039534.
Natural Dairy, Inc (NDI), a
company incorporated in Georgia, United States of America with control number
09039543.
▇▇▇▇ Acquisitions, LLC (▇▇▇▇), a
company incorporated in Georgia, United States of America with control number
07048137.
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ (▇▇▇▇▇▇),
an individual of Georgia, United States of America being the sole member of ▇▇▇▇
and, at or about the date of this Deed, an employee of NDI having previously
been an employee of Cullen.
BACKGROUND
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A
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▇▇▇▇▇▇,
▇▇▇▇ and ▇▇▇▇▇▇ have together been collectively involved in the
procurement, development, ownership and use of the Intellectual
Property.
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B
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▇▇▇▇▇▇,
▇▇▇▇ and ▇▇▇▇▇▇ have agreed to enter into this Deed to acknowledge
assignments and transfers of the Intellectual Property completed as
between any of them thereby establishing Cullen as the current owner of
the Intellectual Property.
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C
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Cullen,
CAT and NDI have agreed to enter into this Deed to acknowledge a future
assignment and transfer of ownership from Cullen to CAT for the benefit
also of NDI with effect from the Effective
Date.
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BY
THIS DEED THE PARTIES AGREE AS FOLLOWS:
DEED OF
ACKNOWLEDGEMENT RELATING TO INTELLECTUAL PROPERTY
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1
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DEFINITIONS
AND INTERPRETATION
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1.1
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DEFINITIONS
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In this
Deed, unless the context otherwise requires:
Business means the business
operations to which the Intellectual Property is applied or is otherwise
deployed at from time to time.
Effective Date means the date
the signed merger agreement with Triplecrown Acquisition Corp pertaining to CAT
and NDI is consummated, provided that unless otherwise extended by the parties
to that merger agreement, that date can be no later than October 22,
2009.
Intellectual Property means
all intellectual property (whether registered or unregistered) that subsists in
the constituent components of the proprietary farming system (including forage
growth and yields, animal genetics and milking systems) that has been developed
by adapting established grazing science, processes, technology and genetics to
liquid milk production in the South East of the United States of America, held
by or licensed to Cullen immediately prior to the Effective
Date. This includes (to the extent that the same may exist) all
inventions (whether patented, patentable or not), know how, methodology, trade
secrets, techniques, trademarks (whether registered or not) and associated
goodwill, and copyrights (whether registered or not), together with the domain
names ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
and ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇,
but does not include any information which is part of the public domain or where
use by Cullen unknowingly amounts to an infringement of the rights, title or
interest of a third party.
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1.2
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INTERPRETATION
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In the
interpretation of this Deed, unless the context otherwise requires:
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(a)
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references
to the parties include their respective executors, administrators,
successors and permitted assigns;
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(b)
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words
in the singular shall include the plural and vice
versa;
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(c)
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use
of the word “includes” or “including” in any form is not a word of
limitation; and
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(d)
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headings
have been inserted for convenience only and shall not affect the
construction of this Deed.
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DEED OF
ACKNOWLEDGEMENT RELATING TO INTELLECTUAL PROPERTY
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2
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OWNERSHIP AND TRANSFERABILITY
OF INTELLECTUAL PROPERTY
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2.1
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At
the date of this Deed, Cullen is the absolute owner of the Intellectual
Property and holds all rights, title and interest in the Intellectual
Property free and clear of any security interests or claims of any other
person in accordance with the terms and conditions of this
Deed. That ownership has arisen from assignments and transfers
to Cullen by and on account of each of ▇▇▇▇ and ▇▇▇▇▇▇, and otherwise upon
procurement and development initiatives undertaken by Cullen and its
representatives (including research and development
activities). For the purposes of completeness, if settlement of
such assignments and transfers has not previously settled for any reason
whatsoever, those assignments and transfers are acknowledged as having
settled by execution of this Deed.
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2.2
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Subject
to the terms and conditions of this Deed, ownership of the Intellectual
Property can be assigned and transferred absolutely in respect of all
rights, title and interest free and clear of any security interests or
claims of any other person.
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3
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COVENANTS
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3.1
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Each
of ▇▇▇▇ and ▇▇▇▇▇▇ covenant with Cullen
that:
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(a)
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they
had at the time of the assignment and transfer to Cullen, the full power
to assign and transfer the Intellectual Property to
Cullen;
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(b)
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the
assignment and transfer was taken by Cullen free and clear of any
mortgages, pledges, liens, charges or other security interests or claims
on interest of any other person;
and
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(c)
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they
will upon request before the Effective Date, promptly and without
additional compensation but at Cullen’s expense for costs necessarily
incurred do all acts and things necessary, including the execution of all
such documents and the giving of all such notices, as may be required by
Cullen to give effect to the assignment and transfer of Intellectual
Property acknowledged by this Deed, and hereby irrevocably appoints Cullen
to be its or his attorney in fact in the name of and on behalf of him or
it to execute all such instruments and do all such things for the purposes
of assuring to Cullen (or its nominee) the full benefit of its rights
under this paragraph. For the avoidance of doubt, the
appointment made under this paragraph does not extend to provide for the
incurrence of a liability to meet any
cost.
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3.2
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Subject
to the terms and conditions of this Deed, Cullen covenants with CAT
that:
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(a)
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it
has the full power to assign and transfer the Intellectual Property to CAT
at the Effective Date; and
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(b)
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such
assignment and transfer can be taken by CAT free and clear of any
mortgages, pledges, liens, charges or other security interests or claims
on interest of any other person.
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3.3
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Cullen
covenants with CAT that with effect from the Effective Date, it will
promptly and without additional compensation but at CAT’s expense for
costs necessarily incurred do all acts and things necessary, including the
execution of all such documents and the giving of all such notices, as may
be required by CAT to give effect to the assignment and transfer of
Intellectual Property by Cullen contemplated by this Deed, and hereby
irrevocably appoints CAT to be its or his attorney in fact in the name of
and on behalf of him or it to execute all such instruments and do all such
things for the purposes of assuring to CAT (or its nominee) the full
benefit of its rights under this paragraph. For the avoidance
of doubt, the appointment made under this paragraph does not extend to
provide for the incurrence of a liability to meet any
cost.
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4
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USE OF INTELLECTUAL
PROPERTY
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4.1
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The
parties acknowledge that ▇▇▇▇ currently conducts business activities
amounting to the operation of dairy farms owned and/or managed by ▇▇▇▇
where such activities may involve the deployment of the Intellectual
Property. Each of ▇▇▇▇▇▇, ▇▇▇▇ and CAT agree that should ▇▇▇▇
desire to continue to deploy the Intellectual Property from the Effective
Date, it will require the express written consent of CAT. CAT
and ▇▇▇▇ shall engage in good faith discussions to achieve the provision
and receipt of that consent effective from the Effective Date on terms as
agreed between CAT and ▇▇▇▇. Those terms will be no more or
less favourable than the terms offered by CAT to any third party under
clause 4.2.
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4.2
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From
the Effective Date, CAT shall be unreservedly free to grant rights of use
to third parties selected by CAT and upon terms agreed between CAT and
such third party without recourse to Cullen, ▇▇▇▇ or
▇▇▇▇▇▇. This clause 4.2 is subject to clause
4.1.
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5
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ASSIGNMENT AND TRANSFER OF
INTELLECTUAL PROPERTY AT THE EFFECTIVE
DATE
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5.1
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Cullen
agrees that upon the Effective Date and subject to clauses 5.2 and 6.2,
the assignment and transfer of the Intellectual Property to CAT
contemplated by this Deed shall automatically be effected without any
requirement for future action as between Cullen and CAT or any other
person.
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5.2
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For
the avoidance of doubt, the Effective Date is a condition precedent to the
assignment and transfer contemplated by clause 5.1 and comprises
conditionality. In the absence of the Effective Date, Cullen
shall retain ownership of the Intellectual Property without obligation to
CAT or any other person and the terms and conditions of this Deed shall
survive except any provision pertaining or otherwise applying to the
assignment and transfer contemplated by clause 5.1 which shall
automatically be deleted from this
Deed.
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6
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REPRESENTATIONS AND
WARRANTIES
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6.1
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▇▇▇▇
and ▇▇▇▇▇▇ each represent and warrant that no amount of consideration is
outstanding in respect of the assignment and transfer of Intellectual
Property from either of them to Cullen. Good and valuable
consideration was provided (the receipt and sufficiency of which are
hereby acknowledged by Cullen) and accordingly, no amount of consideration
remains due or payable. In this clause 6.1, the rights
preserved by clause 4.1 form part of the consideration provided to and
received by ▇▇▇▇ and ▇▇▇▇▇▇.
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6.2
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Cullen
represents and warrants that an assignment and transfer of the
Intellectual Property to CAT as contemplated by clause 5.1 shall require
the contemporaneous payment by CAT to Cullen of an amount of
US$10. That payment shall in the circumstances when taken
together with other consideration passing between the parties, constitute
good and valuable consideration for that assignment and
transfer.
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6.3
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Despite
each of Cullen, ▇▇▇▇ and ▇▇▇▇▇▇ concluding that the ownership and
transferability provisions of this Deed relevant to the Intellectual
Property are accurately stated having each conducted good faith
assessments involving the exercise of reasonable judgement, no party makes
any representation or warranty to any person that the Intellectual
Property is registered or capable of registration or that its use will not
infringe existing intellectual property rights of
others. Conversely, it is possible that third parties may
infringe the Intellectual Property and there can be no guarantee that
attempts to protect the Intellectual Property initiated against those
third parties will be successful. This clause 6.3 is necessary
because of the rapid rate of technological advances in the agricultural
science industry and the prevalence of unregistered rights to intellectual
property much of which is in the public domain in one form or
another.
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6.4
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Each
of Cullen, ▇▇▇▇ and ▇▇▇▇▇▇ represent and warrant to each of CAT and NDI,
that from the Effective Date they will not retain Intellectual Property
contemplated to be assigned and transferred to CAT upon the Effective Date
except as provided for herein.
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DEED OF
ACKNOWLEDGEMENT RELATING TO INTELLECTUAL PROPERTY
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6.5
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Subject
to clause 4.1 as it applies to ▇▇▇▇, each of Cullen, ▇▇▇▇ and ▇▇▇▇▇▇
represent and warrant to each of CAT and NDI, that for a period of three
years from the Effective Date they will not by themselves or in
partnership with any other person seek to operate a business that competes
in any substantive way with the principal business objectives of CAT in
any cities, countries or states of the United States of America and all
other countries in which CAT is conducting business at the time in
question (whether or not it has an actual physical presence in such
location).
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6.6
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The
parties consider the agreements and restraints in this clause 6 to be fair
and reasonable in all the circumstances, and reasonably required as
between the parties.
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6.7
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Cullen
represents and warrants to CAT
that:
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(a)
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until
the Effective Date, it shall not transfer ownership of the Intellectual
Property to any party other than CAT, or otherwise encumber the
Intellectual Property by procuring any other person to hold any right,
title or interest in the Intellectual Property
whatsoever;
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(b)
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until
the Effective Date, it shall not grant rights of use to any person other
than those persons already holding rights of use or where discussions
regarding such rights are in progress, thereby preserving as much as
possible the commercial value of the Intellectual Property for the benefit
of CAT; and
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(c)
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pursuant
to clause 5, at the Effective Date, it shall be deemed to have assigned
and transferred the Intellectual Property to CAT absolutely in respect of
all of its right, title and interest, free and clear of any security
interests or claims by or on account of
Cullen.
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7
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FURTHER
ASSURANCES
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Subject
to any limitations stated herein which shall prevail, each party is, at its own
expense and at the request of any other party and without additional
compensation, to execute and deliver or cause its successors and permitted
assigns to do all things as may be reasonably requested by that other party to
obtain the full benefit of this Deed according to its true
intent. This obligation continues after the Effective
Date.
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8
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CONFIDENTIALITY
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8.1
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No
party may reveal any information concerning this Deed or its subject
matter to any third party other
than:
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DEED OF
ACKNOWLEDGEMENT RELATING TO INTELLECTUAL PROPERTY
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(a)
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in
good faith and in proper furtherance of the objects of this
Deed;
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(b)
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as
required by law or relevant stock exchange listing rules;
or
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(c)
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to
its professional advisors.
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9
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SEVERABILITY
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9.1
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If
any part of this Deed is held by any court or administrative or regulatory
body of competent jurisdiction to be illegal, void or unenforceable, such
determination shall not impair the enforceability of the remaining parts
of this Deed which shall remain in full
force.
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10
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AMENDMENTS TO THIS
DEED
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An
amendment to this Deed will only be effective if it is in writing and signed by
each party.
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11
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COSTS
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Each
party is to pay its own costs (including legal expenses) in entering into and
implementing this Deed.
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12
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COUNTERPARTS
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This Deed
may be executed in any number of counterparts (including facsimile
counterparts), each of which when so executed and delivered shall be deemed to
be an original. All executed counterparts will be taken together to
constitute the same instrument.
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13
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GOVERNING LAW AND
JURISDICTION
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This Deed
is deemed to have been made in the State of New York of the United States of
America and the parties hereto agree that this Deed shall be construed and
enforced in accordance with and governed by the laws of the State of New York of
the United States of America, without reference to conflict of law principles.
The parties agree and consent to be subject to the jurisdiction of the United
States District Court for the Southern District of New York and in the absence
of such Federal Jurisdiction, the parties consent to be subject to the
jurisdiction of the courts of the State of New York. The parties
agree that venue for any claims regarding this Deed is proper in the Southern
District of New York. The parties further agree to accept service by registered
mail of any process relating to any claims brought with regard to this Deed and
hereby waive the right to contest the validity of such service.
DEED OF
ACKNOWLEDGEMENT RELATING TO INTELLECTUAL PROPERTY
EXECUTED
as a deed
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Signed
as a deed by
Cullen
Investments Limited
/s/ ▇▇▇▇ ▇▇▇▇▇▇
Director
/s/
Director
Signed
as a deed by
Cullen
Inc Holdings Limited
/s/ ▇▇▇▇ ▇▇▇▇▇▇
Director
/s/
Director
Signed
as a deed by
Cullen
Agricultural Technologies, Inc
By:
/s/ ▇▇▇▇ ▇▇▇▇▇▇
Signed
as a deed by
Natural
Dairy, Inc.
By:
/s/ ▇▇▇▇ ▇▇▇▇▇▇
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Signed
as a deed by
▇▇▇▇
Acquisitions, LLC
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Chief
Executive Officer
Signed
as a deed by
▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
in
the presence of:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Occupation:
Teacher
Address:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇
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