10
EXCLUSIVE MARKETING AGREEMENT
This Agreement (the "Agreement") is being entered into as of this 17th
day of April, 2007, by and among the party of the first part COMPETITIVE
TECHNOLOGIES, INC. ("CTT"), the party of the second part, AGROFUT E.U.
("AGROFRUT"), and the party of the third part, its sole shareholder ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ("AGROFRUT Shareholder"), and sets forth the terms and conditions of
their agreement regarding CTT's acquisition of certain rights to AGROFRUT's
nutraceutical Product output on an exclusive basis and certain other rights, all
as more particularly set forth below. As used herein, the term "Parties" shall
refer collectively to CTT, AGROFRUT and AGROFRUT Shareholder, and the term
"Party" shall refer to CTT, AGROFRUT or AGROFRUT Shareholder individually. The
Parties hereby agree as follows:
1. SCOPE OF THE AGREEMENT: For good and valuable consideration as stated
herein, receipt of which is hereby acknowledged, the Parties state the scope of
their Agreement as follows:
a. Exclusive First Refusal Obligation. During the Output Term (as
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defined herein), AGROFRUT shall submit to CTT, on an exclusive, "first-refusal"
basis, all AGROFRUT Products (as defined herein) with respect to which CTT shall
have the right to exploit Marketing Rights worldwide in accordance with the
terms and conditions hereof. Each submission shall be made by AGROFRUT in
accordance with the requirements and procedures set forth below. The term
"AGROFRUT Product" shall mean an original nutraceutical Product: (i) to be
produced or acquired for Product release by AGROFRUT; and/or (ii) to be
otherwise released under the AGROFRUT name and/or logo and/or any other name
and/or logo owned, operated or controlled by, or otherwise affiliated with,
AGROFRUT, by itself or through a joint venture with another entity, in each
instance for which AGROFRUT controls the Product Rights. A nutraceutical
product shall be deemed to be an AGROFRUT Product on the first date upon which
AGROFRUT produces or enters into an agreement to acquire the rights to cause
such nutraceutical or other Product to be produced, acquired or otherwise
released in accordance with the definition of an AGROFRUT Product hereunder (the
"Production Date"). For purposes hereof, "first refusal" means that an AGROFRUT
Product shall be submitted solely and exclusively to CTT for purposes of
exploiting the Marketing Rights in and to such AGROFRUT Product before the same
is submitted to any other person or entity. It is the essence of this Agreement
that AGROFRUT will not submit any AGROFRUT Product to a third party for sale,
marketing, acquisition, licensing, exploitation or any other use unless and
until the AGROFRUT Product has been submitted to CTT hereunder, and CTT has
declined to exploit the Marketing Rights to the AGROFRUT Product (a "Rejected
Product"). An AGROFRUT Product for which CTT elects to exploit the Marketing
Rights shall be referred to as an "Included Product."
▇. ▇▇▇▇▇ of Rights. AGROFRUT hereby irrevocably grants, transfers,
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assigns and licenses to CTT the Product Rights worldwide (as defined in
Paragraph 2 hereof) in and to each AGROFRUT Product during the Output Term (as
defined herein) subject to, and in accordance with, the terms hereof.
c. Output Term. The term "Output Term" shall mean the period
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commencing on the date hereof and expiring 180 (one hundred eighty) days from
the date hereof; provided, however, that the Product Rights granted hereunder
thereafter shall remain in effect in perpetuity so long as AGROFRUT's
Shareholder and CTT engage in the Closing of the Exchange contemplated by the
Term Sheet accompanying this Agreement.
2. PRODUCT RIGHTS: The term "Product Rights" shall mean the exclusive
Marketing Rights (as defined herein) to each of the AGROFRUT Products, and all
rights necessary to distribute, to exploit, to advertise, to promote and to
publicize such Marketing Rights of each AGROFRUT Product for worldwide
exploitation. "Marketing Rights" shall mean the following: rights to sell, to
distribute, to advertise, to supply and to control delivery of the Products and
the Products' name, label, packaging or trade dress; i.e., the overall
appearance and commercial impression of the Products, in print media, point of
sale, radio broadcast and television advertising, and in brochures, sales
literature and nutraceutical promotional activities, including on-line
nutraceutical promotional activities, for the Products.
3. EQUITY INTEREST:
a. AGROGRUT Common Stock. CTT shall be entitled to receive from AGROFRUT
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five percent (5%) of the shares of AGROFRUT's Common Stock (the "Equity
Interest"). The shares issued shall be referred to as the "Shares." Such
Shares shall be issued pursuant to the Stock Purchase Agreement executed at the
time of this Agreement.
4. SUBMISSION PROCEDURES:
a. Submission. Not later than 10 (ten) business days following the
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Production Date of an AGROFRUT Product, AGROFRUT shall submit such AGROFRUT
Product to CTT, along with a written notice ("Submission Notice"), from AGROFRUT
to CTT.
b. CTT's Response to Submission. Within 10 (ten) days following
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receipt by CTT of a Submission Notice, together with samples of the Product and
any marketing materials prepared by AGROFRUT (the "Response Period"), CTT will
provide written notice to AGROFRUT as to whether CTT elects to exploit the
Marketing Rights to such AGROFRUT Product. CTT's failure to respond within the
Response Period shall be deemed to constitute CTT's rejection of such AGROFRUT
Product, and such AGROFRUT Product shall thereafter be deemed to be a Rejected
Product.
c. Rejected Products. With respect to each Rejected Product, AGROFRUT
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will have the option to arrange for the Marketing Rights to such Rejected
Product to be acquired by third parties; provided, however, that prior to the
time that AGROFRUT concludes any agreement to grant such rights to a third
party, if there is a change in any of the elements of the Product, then AGROFRUT
shall resubmit the Rejected Product to CTT in accordance with the terms of
Paragraph 3.a. above (provided ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇ (▇▇▇) days from the date of
such resubmission to make its determination), and the Rejected Product shall not
be submitted to any third party unless and until CTT has again declined to
exploit said rights. All of CTT's right, title, and interest in and to each
Rejected Product that is not required to be resubmitted to CTT pursuant to the
terms of this Paragraph 3.c. shall revert to AGROFRUT automatically.
d. Submission by CTT. In addition to AGROFRUT's submissions hereunder,
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CTT shall have the right, but not the obligation, to order from AGROFRUT, at any
time, nutraceutical Products for which CTT is willing to exploit the Marketing
Rights. None of such Products shall be deemed an AGROFRUT Product hereunder
unless and until AGROFRUT enters into a binding written agreement with CTT to
produce or to acquire the rights to cause such Products to be produced, acquired
or otherwise released in accordance with the definition of an AGROFRUT Product
hereunder.
5. PAYMENTS AND DIVISION OF REVENUES:
a. Revenue Division. In lieu of royalties or other payments, AGROFRUT
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and CTT shall engage in a division of revenues so that AGROFRUT shall receive
sixty percent (60%) of marketing and sales proceeds of AGROFRUT products, and
CTT shall receive forty percent (40%) of marketing and sales proceeds of
AGROFRUT products. Any revenues payable to AGROFRUT pursuant to this Agreement
shall be paid on a monthly basis provided that, in each such case, each payment
hereunder shall be accompanied by a revenue statement. The division of revenue
pursuant to this Agreement shall be based on "Net Revenue" determined by
application of Subparagraph (e) of this Paragraph. Revenue shall be determined
on a "cash basis" at the time of receipt by CTT. No revenues will be payable by
CTT to AGROFRUT on returns that are accepted and credited by CTT or by an
affiliate of CTT, or on units of the Products distributed exclusively for
demonstration or nutraceutical purposes, or for replacements. CTT shall have
the right to retain a reasonable reserve from revenues for returned Products
(provided that such reserve will be reviewed and, if appropriate, liquidated in
good faith on a quarterly basis). To the extent that the actual returns to CTT
or affiliates of CTT in any given quarter are greater than the expected returns
based upon which CTT has adjusted any revenue payments, such difference will be
withheld by or payable to CTT, as the case may be. No revenues will be payable
on sales or other transactions between CTT and any affiliate of CTT until final
sale of the Products by the affiliate of CTT. If CTT makes a revenue payment to
AGROFRUT where CTT is subsequently required to refund or to reduce all or any
part of the Net Sales collected by it, CTT shall have the right to a refund of
overpayments of revenues made to AGROFRUT.
b. Books and Records Relating to Sales. CTT will maintain sufficient and
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accurate books and records relating to all transactions relevant to sales of the
Products or in respect of which CTT is required to provide information in a
revenue statement.
c. Inspection. CTT will permit a chartered accountant reasonably
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acceptable to CTT and appointed by AGROFRUT (the "AGROFRUT Accountant") to
inspect the books and records maintained by CTT after 15 (fifteen) days notice
at any reasonable time during normal business hours at AGROFRUT's expense and in
such manner as not to interfere with the business of CTT for the purpose of
verifying the correctness of the revenue statements and the payments made by CTT
to AGROFRUT by way of revenue pursuant to this Paragraph. AGROFRUT shall not be
entitled to make such inspections more frequently than on one occasion in each
period of 12 (twelve) calendar months unless it can demonstrate that there are
exceptional circumstances requiring such additional inspections. In the event
that the AGROFRUT Accountant discovers an error of greater than 5% (five
percent) in favor of AGROFRUT, AGROFRUT shall be entitled to reimbursement by
CTT for the costs of such a review plus interest at 10% (ten percent) per annum.
d. Nondisclosure. Neither AGROFRUT nor the AGROFRUT Accountant shall
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disclose any information acquired as a result of any such examination or
inspection to any person, firm or corporation other than to its employees,
authorized representatives and as otherwise strictly necessary to enforce its
rights hereunder.
e. Net Sales. "Net Sales" means the gross revenue (including advances)
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earned and actually received by or credited to CTT, or any affiliated or related
entity thereof, from the sale, lease, license, distribution or other
exploitation of the Product less the following (all of which shall collectively
be known as the "Cost of Goods"): (i) actual, direct, third-party, out-of
pocket charges or expenses incurred by CTT, or any affiliate or related entity
thereof, in connection with transportation, handling, carriage, delivery,
insurance, taxes (including withholding taxes and Value Added Tax), duties,
tariffs, assessments, levies and other governmental and "pass-through" charges
on or after sale of units of the Product; and (ii) any rebates or allowances
(including allowances credited to resellers or distributors in respect to
marketing and nutraceutical costs) paid by CTT in connection with the sale or
distribution of the Product. If CTT earns revenue from distribution of a
Product in combination or bundle with one or more other CTT products, such
revenue will be allocated between that Product and such other products on a fair
and reasonable basis taking into consideration the current or most recent
wholesale prices of components of such compilation or bundle.
6. CONSULTATION AND APPROVAL RIGHTS:
a. AGROFRUT. AGROFRUT shall meaningfully consult with CTT in good
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faith during the Output Term with respect to (i) AGROFRUT's output slate for
AGROFRUT Products and (ii) all key elements of the Included Products. AGROFRUT
shall advise CTT as to the status of pre-production, production and
post-production of each Included Product on no less than a weekly basis.
Without limiting the generality of the foregoing, AGROFRUT agrees to provide CTT
with regular production status reports during the production period of each
Included Product.
b. CTT. The parties shall mutually agree upon a milestone schedule of
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tasks to be completed for the development, production, marketing and
distribution of each Product and the relevant requirements therefor (the
"Milestone(s)"). AGROFRUT shall evaluate each relevant Milestone to determine
whether the Milestone complies with the requirements established for each such
Milestone. Once approved by AGROFRUT, such approval of the Milestone is not
revocable.
7. BOOKS AND RECORDS: AGROFRUT shall at all times maintain customary
production books and records (including copies of third-party agreements and
chain-of-title documentation) for each Included Product and shall, upon CTT's
request, for a period of up to two (2) years after initial United States Product
release of the applicable Included Product, provide CTT with reasonable access
to review and to copy the same during reasonable business hours.
8. DELIVERY: The term "Delivery" shall mean CTT's receipt and approval of
copies of bills of lading, shipping manifests, customs declarations and other
paperwork ("Delivery Items") relating to each Included Product by a date no
later than two (2) weeks following delivery of each Included Product to CTT or
to its domestic distributor ("Delivery Date"). Notwithstanding the foregoing,
AGROFRUT agrees to use its best efforts to provide any Delivery Items to CTT as
soon as is practicable. AGROFRUT agrees further to provide CTT reasonable
access to production of an Included Product, on a non-interference basis.
AGROFRUT agrees herein that the Delivery Items shall be fully paid for by
AGROFRUT.
9. MARKETING MATERIALS: AGROFRUT agrees herein to provide CTT with free
access to all marketing and advertising materials, which have been prepared (and
cleared by AGROFRUT), in connection with the Product release of each Included
Product (provided, that any costs associated with duplication of such materials
shall be borne by CTT hereunder). The Parties agree that CTT may use such
marketing and advertising materials to promote, to advertise and to market all
Products developed in connection with the applicable Included Product, subject
to the contractual restrictions imposed by third parties. Subject to the prior
approval of AGROFRUT, CTT agrees to use AGROFRUT logos in connection with all
Products developed in connection with the applicable Included Product.
10. REPRESENTATIONS, WARRANTIES AND COVENANTS OF AGROFRUT AND AGROFRUT
SHAREHOLDER: AGROFRUT and AGROFRUT Shareholder hereby represent, warrant and
covenant to CTT as follows:
a. Authority. AGROFRUT is a corporation duly formed and validly
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existing in good standing under the laws of the Republic of Colombia and has the
requisite power and authority to enter into this Agreement and to perform its
obligations hereunder.
b. Duly Authorized. The execution and delivery of this Agreement by
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AGROFRUT and the consummation by AGROFRUT of the transactions contemplated
hereby have been duly authorized, and no other corporate or partnership
proceeding or consent on the part of AGROFRUT is necessary to authorize this
Agreement and the transactions contemplated hereby.
c. No Liens. No claims, liens, charges or encumbrances materially
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impair or materially and adversely affect the Product Rights or Products.
AGROFRUT and AGROFRUT Shareholder hereby agree to provide CTT with written
notice upon the creation of any claim, lien, charge or encumbrance, or any
amendments or other modifications to any of the charges, liens, claims or
encumbrances that would materially impair or have a material and adverse effect
on the Product Rights. Such written notice will be sent in a timely manner and
shall include a brief description of such claim, lien, charge or encumbrance.
The Product Rights licensed to CTT hereunder, as of the date of this Agreement
and hereafter, shall continue to be free and clear of any and all claims, liens,
charges, encumbrances, restrictions, agreements, commitments and arrangements
whatsoever which materially impair or materially and adversely affect CTT's
rights hereunder to exploit the Product Rights.
d. No Infringement. With respect to each AGROFRUT Product and the
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advertising and marketing materials in connection therewith provided to CTT
hereunder, and so long as such advertising and marketing materials are used in
compliance with any restrictions on such materials specified by AGROFRUT to CTT:
(i) the foregoing does not and will not contain any language or material which
is libelous, slanderous or defamatory; and (ii) the foregoing will not, when
used by CTT (or its distributors, customers and assigns) as authorized
hereunder, violate, infringe upon or give rise to any adverse claim with respect
to any common-law or other right (including, without limitation, any patent,
copyright, trademark, trade name, service ▇▇▇▇ or trade secret) of any person or
entity or violate any applicable law in a fashion which would adversely affect
CTT's ability to exercise the Product Rights hereunder.
e. No Payment Obligations. CTT will not be obligated to make any
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payments to any third party, unless otherwise expressly specified in this
Agreement or consented to in writing by CTT, in connection with the exercise by
CTT or its licensees of the Product Rights.
f. Copyrighted Material. Except with respect to incidental public
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domain elements, and subject to the applicable provisions of applicable
copyright law as of the date hereof and as it may change in the future, the
copyright(s) in marketing materials or technical descriptions of each AGROFRUT
Product and in the material upon which it is based or which is contained therein
will be valid and subsisting during the Output Term for each AGROFRUT Product,
and AGROFRUT has not done or permitted and will not do or permit any act or
omission which would impair or diminish the validity or duration of any such
copyright.
g. No Conflicting Grant. With respect to its Products, AGROFRUT has
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not granted and will not grant to any third person (i) any of the Product Rights
granted to CTT hereunder nor (ii) any other rights which conflict with the
Product Rights exclusively granted to CTT hereunder, and (iii) has not entered
and shall not hereafter enter into any agreement which would violate or conflict
with the Product Rights granted to CTT or the restrictions imposed upon AGROFRUT
hereunder.
h. Advertising. CTT may use the names, labels and likenesses of all
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AGROFRUT Products in any and all advertising and marketing materials, and CTT
will not be restricted in any way from using any of the names, labels and
likenesses in connection with such advertising and marketing materials.
i. Capitalization. As of the date hereof, there are 50,000 shares of
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AGROFRUT's Common Stock issued and outstanding. Each share issued has been
issued in conformity with applicable law.
11. REPRESENTATIONS, WARRANTIES AND COVENANTS OF CTT: CTT hereby
represents, warrants and covenants to AGROFRUT as follows:
a. Authority. CTT is a corporation duly formed and validly existing in
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good standing under the laws of the State of Delaware and has the requisite
power and authority to enter into this Agreement and to perform its obligations
hereunder.
b. Duly Authorized. The execution and delivery of this Agreement by
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CTT and the consummation by CTT of the transactions contemplated hereby have
been duly authorized, and no other corporate proceeding or consent on the part
of CTT is necessary to authorize this Agreement and the transactions
contemplated hereby.
c. Investment Experience. CTT represents that it is experienced in
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evaluating and investing in companies in a similar stage of development as
AGROFRUT and acknowledges that it is able to fend for itself in the transactions
contemplated by this Agreement and has the ability to bear the economic risks of
its investment pursuant to this Agreement. CTT is capable of evaluating the
merits and risks of the investment in the Shares and can bear the risk of the
loss of the entire Equity Interest. CTT has not been organized for the purpose
of acquiring the Shares. CTT is an "Accredited Investor" as defined in the
Securities Act of 1933, as amended.
d. Investment for Own Account. The Shares will be acquired for CTT's
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own account, not as a nominee or agent, and not with a view to or in connection
with the sale or distribution of any part thereof. There is no contract or
arrangement with any person to sell, transfer or grant participation to any
third person with respect to the Shares.
12. INDEMNITY/INSURANCE:
a. AGROFRUT. AGROFRUT hereby agrees to indemnify, to defend and to
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hold harmless CTT, its subsidiaries and related companies, its licensees,
distributors, affiliates and its customers, and their respective officers,
directors, agents, and employees, from any and all third-party claims, actions
or proceedings of any kind and from any and all damages, liabilities, costs and
expenses (including reasonable legal fees and costs) relating to or arising out
of any breach of any of the warranties, representations or agreements of
AGROFRUT hereunder or any error or omission in any of the material or
information furnished to CTT in accordance with this Agreement (except to the
extent such claims, actions or proceedings give rise to CTT's indemnification
obligations under this Agreement), or any injury or claim resulting from the
sale or use of the Products.
b. CTT. CTT hereby agrees to indemnify, to defend and to hold harmless
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AGROFRUT, its parent, subsidiaries and related companies and affiliates, and
their respective officers, directors, agents, and employees, from any and all
third-party claims, actions or proceedings of any kind and from any and all
damages, liabilities, costs and expenses (including reasonable legal fees and
costs) relating to or arising out of any breach of any of the warranties,
representations or agreements of CTT hereunder (except to the extent such
claims, actions or proceedings give rise
to AGROFRUT's indemnification obligations under this Agreement).
c. Insurance. AGROFRUT shall name CTT as an additional named insured
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under its errors and omissions ("E&O") and product liability insurance as
appropriate.
13. REMEDIES:
a. AGROFRUT's Remedies. No action or omission by CTT shall constitute
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a breach of this Agreement unless AGROFRUT first notifies CTT in writing setting
forth the alleged breach or default and CTT does not cure the same within 30
(thirty) days of being notified of such breach, with the exception of a breach
of a payment obligation, which cure period shall be limited to five (5) days of
being notified of such breach. If CTT breaches its obligations hereunder, the
damage, if any, caused to AGROFRUT shall not be irreparable or sufficient to
entitle AGROFRUT to injunctive or other equitable relief. Consequently,
AGROFRUT's rights and remedies shall be limited to the right, if any, to obtain
damages at law, and AGROFRUT shall not have any right in such event to terminate
or to rescind this Agreement or any of the rights granted to CTT hereunder or to
enjoin or to restrain the advertising, promotional, distribution, exhibition or
exploitation of the AGROFRUT Products and/or any of CTT's rights hereunder.
b. CTT's Remedies. AGROFRUT acknowledges that the rights herein granted
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are of a special, unique, unusual, extraordinary and intellectual character
giving them a peculiar value, the loss of which cannot be reasonably or
adequately compensated in damages in an action at law, and that a breach by
AGROFRUT will cause CTT irreparable injury and damage. CTT shall be entitled to
injunctive and other equitable relief to prevent any breach by AGROFRUT and to
obtain any monetary damages at law available to CTT. CTT's payment of any
compensation or performance of any obligation hereunder shall not constitute a
waiver by CTT of any breach by AGROFRUT of any rights or remedies which CTT may
have as a result of such breach; provided, however, that if such a breach by
AGROFRUT (i) is inadvertent and non-recurring (i.e., not intentional or
repeated) and is by its nature reasonably curable and (ii) allowing AGROFRUT to
cure such a breach will not result in additional expense to CTT, then AGROFRUT
shall have a period of five (5) business days from the date of notice from CTT
of such breach within which to cure such breach.
c. Remedies Cumulative. All remedies accorded herein or otherwise
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available to either Party hereto shall be cumulative, and no one such remedy
shall be exclusive of, nor shall it be
considered a waiver of, any other.
14. NOTICES: All notices shall be in writing and shall be delivered to the
address(es) for notice set forth below or hereafter supplied by a Party to the
other. Notices shall be effective on the date received if delivered by hand or
by facsimile, on the next business day following delivery thereof to an air
courier for overnight delivery, and on the third business day after deposit into
the United States mail, postage prepaid.
If to CTT:
Mr. John Nano
President and Chief Executive Officer
Competitive Technologies, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇ Sale, Esq.
Sale & ▇▇▇▇▇, P.C.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
If to AGROFRUT:
Agrofrut E.U.
Carrera Primero ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇
ATTN : Sra. ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, President
If to AGROFRUT Shareholder:
Sra. ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ Primero ▇▇▇▇ 717
Apartado 1401
Penta ▇▇▇▇▇▇▇▇
▇▇▇▇, Colombia
15. CONFIDENTIALITY: The Parties shall hold in confidence the proprietary
information relating to AGROFRUT's Products and CTT's marketing and sales.
Neither Party shall disclose,
without the other Party's prior consent to any third party (other than its
respective employees, directors, officers, attorneys and agents engaged in this
transaction, in their capacity as such, on a need-to-know basis), any
information with respect to proprietary information relating to AGROFRUT's
Products and CTT's marketing and sales except: (a) to the extent necessary to
comply with law or the valid order of a court of competent jurisdiction, in
which event the party making such disclosure shall so notify the other party as
promptly as practicable (if possible, prior to making such disclosure) and shall
seek confidential treatment of such information; (b) as part of its normal
reporting or review procedure to its affiliated company, banks, auditors,
investment bankers, underwriters, third-party participants and/or attorneys
(collectively, "Reporting Parties"), provided that such Reporting Parties agree
to be bound by the provisions of this Paragraph; (c) in order to enforce its
rights pursuant to this Agreement; and (d) when such information is otherwise
publicly available.
16. INITIAL PRESS ANNOUNCEMENT: The Parties agree that the timing and
content of the initial announcement (if any) relating to the completion of this
Agreement will be mutually coordinated and agreed upon before being issued by
CTT, AGROFRUT or any third party.
17. ASSIGNMENT: AGROFRUT may not assign, transfer, sell, mortgage, pledge
or hypothecate this Agreement, or any interest herein or rights hereunder, in
whole or in part, either voluntary or by operation of law (including, without
limitation, by merger or consolidation or otherwise), without the prior written
consent of CTT, except that, with CTT's prior written consent, AGROFRUT may
assign this Agreement to its successor or assigns, to any of its associated,
affiliated and subsidiary companies or to an entity which acquires all or
substantially all of its assets on the condition that assignee assumes all of
AGROFRUT's obligations hereunder; provided, however, that AGROFRUT shall be
entitled to assign from time to time its right to receive payments hereunder if
such assignment is made pursuant to a signed, written payment direction.
18. FURTHER INSTRUMENTS: Each Party hereto shall duly execute and deliver
to the other Party, any and all agreements, documents and instruments reasonably
required by the other Party to carry out and to effectuate the purposes and
intent of this Agreement.
19. GOVERNING LAW/DISPUTE RESOLUTION:
a. Governing Law. The substantive laws (as distinguished from the
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choice of law rules) of the State of Delaware and The United States of America
applicable to contracts made and performed entirely in the State of Connecticut
shall govern (i) the validity and interpretation of this Agreement, (ii) the
performance by the Parties of their respective obligations hereunder, and (iii)
all other causes of action (whether sounding in contract or in tort) arising out
of or relating to this Agreement or to the termination of this Agreement.
b. Dispute Resolution. The Parties hereto agree that any dispute or
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controversy relating to this Agreement shall be decided by a court with
jurisdiction in the State of Connecticut, and the Parties hereby submit to the
jurisdiction of such court. The prevailing Party shall be entitled to collect
from the other Party all of its legal expenses incurred in said matter
including, without limitation, reasonable attorneys' fees and costs.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
signed the day and year first written above.
COMPETITIVE TECHNOLOGIES, INC. AGROFRUT E.U.
/s/ ▇▇▇▇ ▇. Nano /s/ ▇▇▇▇▇ ▇▇▇▇ Valencia
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President and Chief Executive Officer President
AGROFRUT Shareholder
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