**Exhibit 10.36**

 

**AGREEMENT**

 

This AGREEMENT (this “Agreement”), dated as of July 1, 2003, is enteredinto by and between Alcide Corporation, a Delaware corporation (“Alcide”), andFerdinand Eimermacher GmbH whose offices are located at Norwalde, Germany (Eimermacher).

 

**RECITALS**

 

A.                                   Alcidehas certain valuable patent rights, trademark rights, technical data andinformation relating to products intended for use in the prevention of mastitisin dairy cattle.

 

B.                                     Eimermacherhas experience in manufacturing and selling products to the dairy industry anddesires a license to Alcide’s products, upon the terms set forth herein.

 

**AGREEMENT**

 

NOW, THEREFORE, the parties agree as follows:

 

**1.****                                      DEFINITIONS**

 

As used herein:

 

1.1                                 “ContractTerm” shall be a ten (10) year period starting ninety (90) to one hundredtwenty (120) days after this Agreement is signed by both parties dependent onwhen Eimermacher completes the first qualified product batch.

 

1.2                                 “Product”shall refer to Alcide® external udder care products, listed on Exhibit A,including, without limitation, UDDERgold® Platinum Germicidal Barrier Teat Dip,4XLA® Pre- and Post-Milking Teat Dip, DIPPINGOLD® Pre- and Post- Milking TeatDip Product and shall include any refinements or improvements to the existingudder care product line.

 

1.3                                 “Territory”shall be defined as Austria, Germany, Poland and Switzerland.  Additional countries can be added to thisagreement in the future by mutual agreement of both parties.

 

1.4                                 “Affiliate”shall mean any company or other business entity controlled by, controlling orunder common control with a party, control being presumed if there is direct orindirect ownership of at least fifty percent (50%) (or, if less, the maximum

 

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permitted byapplicable law) of the voting stock, equity or income interest in the othercorporation or business entity.

 

1.5                                 “PatentRights” shall mean the rights of Alcide in any patent applications filed on thetechnology within the Territory, including, without limitation, all the U.S.and International patents of Alcide set forth in Exhibit A together with anydivisions, continuations, continuations-in-part, and any patents or reissuedpatents therein.

 

1.6                                 “TrademarkRights” shall mean all the Alcide trademarks registered or otherwise inGermany.

 

1.7                                 “TechnicalInformation” shall mean all trade secrets, technical reports, information anddata provided by Alcide, including, without limitation, formulations, testresults and know-how for manufacturing.

 

1.8                                 “PrivateLabel” shall mean any label for the Products that incorporates trademarks,logos, symbols or trade dress other than the trademarks, logos, symbols andtrade dress owned by Alcide and used to identify Products.”

 

**2.A****                             GRANTOF RIGHTS**

 

2.A.1                    Subjectto the terms of this Agreement, Alcide hereby grants to Eimermacher anon-exclusive license under the Patent Rights and Technical Information tomake, have made, use, sell and import the Product in the Territory for theContract Term.  Eimermacher shall notuse the Patent Rights, Trademark Rights or Technical Information for any otherpurpose.  Eimermacher shall notmanufacture the Product for a third party unless approved in writing byAlcide.  Eimermacher shall have no rightto make improvements or continuations or continuations-in-part.

 

2.A.2                    Eimermachermay not sublicense its rights granted pursuant to Paragraph 2.A.1 without priorwritten permission from Alcide in its sole discretion; provided, however, thatEimermacher may sublicense its rights with respect to selling the Product inthe Territory as provided in Paragraph 2.A.4.

 

2.A.3                    Eimermachershall have a non-exclusive license under the Trademark Rights to use theTrademark Rights for the purposes of manufacturing, packaging, marketing anddistributing the Product.  Eimermachershall not register or use any mark that is confusingly similar to the markslisted on Exhibit D (the “Marks”). Eimermacher shall not challenge or attempt to prevent the use orregistration of Alcide’s Marks. Eimermacher shall use the Marks only in the exact form provided to it byAlcide.  In any of Eimermacher’sactivities relating to the labeling, promotion and

 

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sale of theProduct, the Alcide Marks shall always be prominently displayed in order toprotect Alcide’s rights and goodwill in the same.  Whenever Alcide’s Marks are used in advertising and promotionalprograms, Alcide retains the right to review and approve the same.  All goodwill in and to the Marks shall inureto the benefit of Alcide.  Eimermachershall include the statement “[Product Name] and Alcide are registeredtrademarks of Alcide Corporation” on all promotional materials and allpackaging.

 

2.A.4                    Eimermachermay appoint agents, dealers or sales representatives to act on Eimermacher’sbehalf for sales of the Product in the Territory, provided that anycompensation, benefits and taxes related to such agents, dealers orrepresentatives shall be solely Eimermacher’s responsibility, and Eimermachershall remain responsible for any agents’, dealer’s or sales representative’sperformance and adherence to the terms of this Agreement.

 

2.A.5                    Eimermachercovenants that it will maintain this Agreement for the ten (10) year ContractTerm and will not manufacture or market an acidified sodium chlorite teat dipproduct other than the Product during the Contract Term.  Eimermacher also covenants that it willadvise Alcide one year in advance of the set termination date of this Agreementof its intention to market an acidified sodium chlorite teat dip product.

 

2.A.6                    Subjectto the terms and conditions of this Agreement, Eimermacher is authorized tosell the Product in such manner, at such prices and upon such terms asEimermacher shall determine. Eimermacher is an independent contractor, not an agent or employee ofAlcide.

 

2.A.7                    Labelingof the Product shall be mutually determined in advance by Alcide andEimermacher.  Any changes to Productlabels shall be mutually agreed upon by Alcide and Eimermacher in advance.

 

Any approvals required under this Agreement shall not be unreasonablywithheld by either Alcide or Eimermacher.

 

2.A.8                    Alltrade names, trademarks and product names under which the Product is soldexcept the Private Label shall be the property of Alcide.  Alcide shall maintain the patents andtrademarks under which the product is manufactured and sold for the term ofthis Agreement and shall pay any maintenance fees.

 

2.A.9                    Aspart of the transfer of Technical Information, Alcide will provide one visitwithin the first twelve (12) months of the contract at Alcide’s expense to the

 

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manufacturingsite.  Any travel expenses for furthervisits requested by Eimermacher will be at Eimermacher’s expense.

 

2.A.10              Alcidereserves the right to review raw material specifications and batch records onthe first six (6) batches of Product produced under this Agreement duringinitial start up at each new manufacturing site and an annual basis from thenon for the Contract Term.  Alcide furtherreserves the right to run quality tests in a laboratory of its choosing on thefirst six (6) batches of finished Product produced under this Agreement duringinitial start up at each new manufacturing site and on an annual basis fromthen on for the Contract Term to verify the Product meets Alcide’sspecifications.  Any batch produced byEimermacher that does not meet Alcide’s specifications as dictated in theTechnical Information will be disposed of at Eimermacher’s expense and shallnot be sold or otherwise distributed. However, Eimermacher reserves the right to run checking over qualitytests in a laboratory of its choosing on any such batch.  In case of the contrary result to thestatement of the laboratory chosen by Alcide and Eimermacher shall reach anamicable settlement.

 

2.A.11              Itis Eimermacher’s responsibility to adhere to relevant local regulationsregarding GMPs, product quality and reporting requirements.

 

**2.B****                             Salesunder Private Label**

 

2.B.1                      Theprovisions set forth in this Section 2B shall apply to the distribution ofProducts under one or more Private Labels. All other provisions of the Agreement shall apply equally whether theProducts are sold under a Private Label or a proprietary label of Supplier.

 

2.B.2                      Eimermacheris authorized to sell Products under the terms of this Agreement under one ormore Private Labels.  Alcide will havethe right to review and approve all Private Labels prior to their use inconnection with the sale of Product.

 

2.B.3                      Duringand after the term of this Agreement, Eimermacher shall not sell any productunder the Private Label other than the Product for which Alcide approved thePrivate Label’s use under Section 2.B.2. Upon termination of this Agreement, Eimermacher shall destroy all unusedPrivate Labels.

 

2.B.4                      Allregistrations under which the Products are sold using a Private Label shall bethe property of Alcide.  In the eventany registrations (e.g., Product registrations) are taken or issued in the nameof Eimermacher, Eimermacher shall, upon request, but in any event no later thanupon termination of this Agreement, transfer such registrations to Alcide orAlcide’s designee and provide any documents and assistance reasonably requiredin connection therewith.

 

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2.B.5                      Eimermachershall defend, hold harmless and indemnify Alcide, its affiliates, employees,officers and agents from and against any and all claims, actions, liabilities,losses, fines, costs and expenses (including reasonable attorneys’ fees)arising out of or relating to:

 

(a)                                  anyactual or alleged infringement of any rights of any third parties by anyPrivate Label; or

 

(b)                                 anyfailure to provide adequate warnings, labeling or instructions in connectionwith the sale of a Product under a Private Label.

 

**3.****                                      LICENSINGFEES - TERMS AND CONDITIONS**

 

3.1                                 Inconsideration of the license granted herein, Eimermacher shall pay Alcide alicensing fee (collectively, “Licensing Fees”) for each liter sold byEimermacher as set forth in Exhibit B. Fees for additional products sold under this Agreement will be set atthe time the new Product’s formulation is provided to Eimermacher.  All Licensing Fees shall be subject to theterms and conditions set forth in this Paragraph 3 and in the attached ExhibitB.  No additional or different terms setforth in Eimermacher’s or Alcide’s purchase order, acknowledgment or otherforms or correspondence (other than an amendment to this Agreement pursuant toParagraph 10.2 hereof) shall govern any activities related to sales of theProduct by Eimermacher.

 

3.2                                 LicensingFees shown in Exhibit B may be reviewed annually on a mutually agreed basis byAlcide and Eimermacher.

 

3.3                                 LicensingFees shall be paid to Alcide in Euros [***]. On the tenth (10th) day of the month following the month ofsale Eimermacher shall account for the sales of this calendar month in writingto Alcide.  All Licensing Fees notreceived by Alcide by the due date as stated before will incur interest at therate of two percent (2%) above the discount rate of the European FederalReserve Bank.

 

3.4                                 Eimermachershall keep, or cause to be kept, accurate books and records in sufficientdetail to verify the calculation of license fees and the reports givenhereunder and shall retain such books and records at its principal place ofbusiness for at least five (5) years after the end of the fiscal year to whichthey pertain.  Alcide shall have theright, at its expense and not more frequently than once per calendar year, tohave designated certified public accountants (who shall be bound to confidentiality)examine, during normal business hours, the books and records of Eimermacher andits Affiliates relating to the calculation of license fees and reports andgiven hereunder for any period during which Eimermacher is to keep the books

 

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and records.  If any audit reveals underpayment greaterthan five percent (5%), Eimermacher shall pay the underpayment plus interest inthe rate as specified in [Paragraph] 3.3, from the date accrued to the dateof payment, and shall reimburse Alcide for costs of the audit.  Further, Alcide shall be permitted to doanother audit within the next twelve (12) month period.

 

3.5                                 Alcideand Eimermacher have agreed to minimum annual commitment amounts of liters soldby Eimermacher (as set forth in Exhibit C attached) during the first five yearsof the Contract Term.  These commitmentswill be reviewed annually at least sixty (60) days prior to the anniversarydate of the Agreement and can be amended by mutual agreement of Alcide andEimermacher.  Notwithstanding theforegoing, with respect to any new Products or improvement or refinementsprovided to Eimermacher after commencement of the Contract Term, Alcide andEimermacher shall mutually agree to the Licensing Fees and annual minimumcommitments for such products at the time such products, improvements orrefinements are initially provided to Eimermacher.  Thereafter, the commitments shall be reviewed annually at thetime frame set forth in the second sentence of this Paragraph 3.5.  Sixty (60) days prior to the five (5) yearanniversary date minimum annual commitment amounts will be mutually agreed toby both parties for years six (6) through ten (10) of the Agreement.

 

In the event that Eimermacher does not sell the yearly commitment,Alcide shall have the right to terminate the contract with six (6) monthsnotice, and/or add additional distributors in the Territory.

 

3.6                                 Alcidewarrants that Alcide is authorized to enter into this Agreement and to grant toEimermacher the rights provided for in Paragraph 2.1.  Alcide also warrants that patents and trademarks relating to theProduct are owned by Alcide and that the Product is the result of originalresearch of Alcide.  Alcide declaresthat Alcide is not aware of any legal deficiencies of the patent rights,trademark rights and technical information.

 

3.7                                 Eimermacherwarrants that all advertising and promotional materials developed byEimermacher shall be in accordance with descriptions of Product provided byAlcide and, to the best of Eimermacher’s knowledge, shall be accurate in allmaterial respects.  Eimermacher warrantsthat Eimermacher is authorized to enter into this Agreement and the same doesnot and shall not infringe upon any other agreements it may have.

 

3.8                                 Eimermachershall indemnify, defend and hold harmless Alcide, its officers, directors,employees, agents, consultants and contractors (the “Indemnified

 

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Parties”)successors and assigns from and against any claim, action (including regulatoryaction by relevant authorities), liability, damage, loss, cost or expense(including, without limitation, reasonable attorneys’ fees) (collectively,“Losses”) arising from or related to the exercise of the license granted herein,including the testing, manufacturing and/or sale of Product, by Eimermacher andits Affiliates or the breach of any obligation of Eimermacher under thisAgreement.  Alcide shall promptly notifyEimermacher of any such claim or action, allow Eimermacher to control thedefense of such claim or action and render all reasonable assistance toEimermacher in connection with defending such claim or action; provided,however, that Eimermacher shall not enter into any settlement agreement thatrequires an admission of wrong doing or fault by Alcide without Alcide’s priorwritten consent.  Notwithstanding theforegoing, Alcide shall have the right to participate with its own counsel, atits expense.

 

Provided that the Product has been manufactured, tested and distributedby Eimermacher and its Affiliates in accordance with this Agreement, Alcideshall indemnify and hold harmless Eimermacher and Eimermacher’s officers,directors, employees, agents, dealers and sales representatives against anyclaims by third parties which may arise due to Product defects or defects inmanufacturing instructions as provided by Alcide or which may arise due to anyother breach by Alcide of its warranties set forth in Paragraph 3.6hereof.  Eimermacher shall give promptnotice of any claim, threatened claim or litigation, which in any way relatesto the exercise of the license granted under this Agreement.

 

3.9                                 Eimermachershall secure and maintain product liability insurance in the amount of twomillion six hundred thousand (2.600.000) Euro per Product with a ten million(10.000.000) Euro umbrella with respect to the Product.  Upon request, Eimermacher shall provideAlcide with evidence of such insurance coverage.  Eimermacher will issue Alcide a Certificate of Insurance listingAlcide as an additional insured on Eimermacher’s liability insurance policy andsuch Certificate of Insurance shall be in force during the entire ContractTerm.

 

3.10                           EXCEPTFOR THE WARRANTIES SET FORTH IN PARAGRAPHS 3.6 and 3.8, ALCIDE MAKES NO OTHERREPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE PATENT RIGHTS, TRADEMARKRIGHTS AND TECHNICAL INFORMATION AND EXPRESSLY DISCLAIMS ANY OTHER WARRANTIES,EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OFMERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PATENTABILITY ANDNONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF OTHER PARTIES.

 

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3.11                           Eimermacheris solely liable for implementing and solely responsible for all costsassociated with any recall from the field of Product produced under thisAgreement, provided that Alcide bares no fault in the reason for the recall.

 

3.12                           Exceptfor Alcide’s obligations for the maintenance of patents and trademarks asprovided for in Paragraph 2.8, Eimermacher shall secure and maintain, inthe name of Alcide, any and all registrations, permits, licenses, approvals,and other governmental actions required to manufacture, import, handle, market,sell, demonstrate, use and distribute the Product in the Territory, provide toAlcide quarterly progress reports on any such action, and provide to Alcidecopies of all registrations, permits, licenses, approvals, certificates,correspondence and other documentation related to any such action.  Upon termination of this Agreement,Eimermacher shall transfer to Alcide any and all such licenses, permits andregistrations within thirty (30) days of contract termination.

 

3.13                           Eimermachershall keep a log of and customer complaints regarding the Product and shallpromptly notify Alcide in writing of each complaint that Eimermacher mayreceive or become aware of concerning the Product.

 

**4.****                                      PROMOTIONALACTIVITIES**

 

4.1                                 Alcideshall regularly advise Eimermacher of any information concerning Productavailability and formulation.

 

4.2                                 Eimermachershall undertake such advertising and promotional activity relating to Productas is deemed appropriate by Eimermacher and Alcide to actively promote sales.

 

4.3                                 Eimermacher’smarketing plan for the following year shall be provided to Alcide annually sixty(60) days prior to the anniversary date of this Agreement.  Alcide shall have the right to comment onand approve Eimermacher’s marketing plan. A list of major meetings, annual shows, seminars and training programsat which Alcide’s participation is desired shall be submitted ninety (90) daysin advance of the anniversary date by Eimermacher.

 

4.4                                 Atabulation of Eimermacher sales by Product and Eimermacher Sales Regions shallbe provided by Eimermacher to Alcide within thirty (30) days of the end of eachfiscal year.

 

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**5.****                                      TERMAND TERMINATION**

 

5.1                                 Onehundred and eighty (180) days prior to expiration of this Agreement,Eimermacher and Alcide shall meet to determine their intentions regarding a newor extended agreement.

 

5.2                                 EitherParty may terminate this Agreement effective immediately upon notice to theother, in the event that the party to which such notice is sent becomes thesubject of any bankruptcy or insolvency proceedings.  Alcide may also terminate this Agreement with sixty (60) daysnotice as defined in Paragraph 10.3 in the event Eimermacher is delinquentin payment of invoices, as defined by Paragraph 3.3, by more than thirty(30) days in spite of a reminder by Alcide or if Alcide repeatedly must requirethe destruction of batches of the Product pursuant to Paragraph 2.10.

 

5.3                                 EitherParty may terminate this Agreement in the event there is a material breach ofthe contract by the other party and such breach is not cured within sixty (60) daysof the date of the notice of breach.

 

5.4                                 Eimermachershall have a period of six (6) months following termination of this Agreementto sell or dispose of any inventory of Product (other than that which isrequired to be destroyed pursuant to Paragraph 2.10) remaining at the dateof termination; provided, however, that, Licensing Fees shall continue to bedue in accordance with Paragraph 3.

 

5.5                                 Upontermination of this Agreement, Eimermacher shall (a) cause all materialscontaining any Technical Information to be promptly returned to Alcide,(b) at Alcide’s election, assign to Alcide rights in any regulatoryapplications or approvals (e.g., investigational new drug applications) (to theextent assignable) requested by Alcide and (c) during the nine (9) monthsfollowing termination, discuss with Alcide information and data that existswith respect to Product and provide to Alcide such relevant information anddata requested by Alcide, provided however that all costs for Eimermacher’sactions as set forth in sub-paragraphs (b) and (c) shall be borne by Alcide.

 

The rights and obligations of Paragraphs 2.8, 3.3, 3.4, 3.6, 3.8, 3.9,3.11, 3.13, 5.4, 5.5, 6, 7, 9 and 10 and any accrued obligations shall survivetermination or expiration of this Agreement. All other rights and obligations shall not survive termination orexpiration.

 

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**6.****                                      ALCIDEPATENTS, TRADEMARKS AND TECHNICAL INFORMATION**

 

Each party shall promptly notify the other party in writing of any allegedor threatened infringement of a patent or trademark included in thePatent/Trademark Rights.  Alcide willhave the sole right and discretion to bring and maintain actions against anyinfringer in, to or under the Patent Rights, Trademark Rights or TechnicalInformation in the Field and Territory that is or could be adversely impactingits rights hereunder.  Eimermacheragrees, without charge, to render such reasonable assistance, execute anydocuments and do such other acts as may be reasonably necessary in such legalaction as Alcide may reasonably request.

 

**7.****                                      CONFIDENTIALINFORMATION**

 

7.1                                 “ConfidentialInformation” means confidential information of a party, and marked confidentialif disclosed in writing or if orally disclosed, identified as confidentialinformation at the time of disclosure and confirmed in writing within ten (10)days after disclosure, and shall include without limitation the Patents,Technical Information and licensing fees as presented in Exhibit B.  Alcide and Eimermacher agree, with respectto any confidential information received from the other and identified asConfidential Information, that:

 

(a)                                  Thereceiving party shall prevent disclosure in any manner of the ConfidentialInformation to any third party without prior written consent of the disclosingparty, and the degree of care taken by the receiving party shall be at least asgreat as the degree of care which the receiving party takes in protecting itsown Confidential Information of like kind and importance, but in no event lessthan a reasonable degree of care; and

 

(b)                                 Thereceiving party shall not use Confidential Information disclosed by the otherparty for any commercial purpose other than pursuant to this Agreement withoutthe prior written consent of the disclosing party; and

 

(c)                                  Thereceiving party shall only disclose the Confidential Information to those ofits employees who have a need to know in order to perform their jobresponsibilities.

 

7.2                                 Neitherparty shall have any obligation with respect to any information disclosed bythe other party:

 

(a)                                  whichis already in the possession of the receiving party at the time of its receiptfrom the disclosing party;

 

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(b)                                 whichthe receiving party lawfully receives from another person whose disclosurethereof to the receiving party does not violate any rights of the disclosingparty;

 

(c)                                  whichis or becomes published or otherwise publicly available through no act oromission of the receiving party.

 

7.3                                 Neitherparty shall have any obligation to keep Confidential Information confidentialif requested by a governmental or court order and the disclosing party is givena reasonable opportunity to prevent such disclosure or obtain a protectiveorder.

 

7.4                                 Upontermination of this Agreement, as provided for in Section 5, Eimermacher andAlcide shall each, upon the written request of the other, return or destroy allmaterials, copies thereof and extracts there from which include any informationdesignated as confidential by the other pursuant to Paragraph 7.1.  Each may, however, retain for legal archivalpurposes only, one (1) copy of all such material.

 

7.5                                 Theprovisions of this Paragraph 7 shall survive termination of this Agreementindefinitely.

 

**8.****                                      MOSTFAVORED LICENSEE**

 

Alcide shall be obliged to grant Eimermacher the same favorable termsas licensor grants to other of its licensees after the signature date of thisAgreement, provided, that the rights and obligations of such licensees undertheir respective license agreements are substantially comparable to the rightsand obligations of Eimermacher under this Agreement.

 

**9.****                                      LIMITATIONOF LIABILITY**

 

IN NO EVENT SHALL ALCIDE’S LIABILITY UNDER THIS AGREEMENT EXCEED THEAMOUNTS PAID BY EIMERMACHER AS LICENSING FEES UNDER THIS AGREEMENT.  EXCEPT FOR EIMERMACHER’S INDEMNIFICATIONOBLIGATIONS UNDER THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE FOR ANYINCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDINGWITHOUT LIMITATION REASONABLE ATTORNEYS’ FEES), EVEN IF THE PARTY HAS BEENADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

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**10.****                               MISCELLANEOUS**

 

10.1                           Eimermachermay not assign or delegate in whole or in part this Agreement or any right orobligation arising hereunder without the prior written consent of Alcide,subject to Paragraph 2.4.  Anyassignment or delegation that is not exempted and that is attempted withoutsuch consent shall be of no force or effect. This Agreement shall be binding on and inure to the benefit of thesuccessors and permitted assigns of the parties.

 

10.2                           ThisAgreement constitutes the entire understanding between the parties hereto withrespect to the subject matter hereof and supersedes and cancels all priorunderstandings, promises and agreements. No modification or amendment hereof shall be valid or binding on theparties unless made in writing and duly executed by the parties.

 

10.3                           Anynotice or any other communication required or permitted to be given to a partypursuant hereto shall be sufficiently given if delivered personally or byfacsimile or express courier service (expenses prepaid) to the address setforth below:

 
| Alcide:                     | Alcide Corporation  8561 154th Avenue N.E.  Redmond, WA  98052  Attn:  President  FAX:  (425) 861-0173 |
|-----------------------------|-----------------------------------------------------------------------------------------------------------------------|
|                        |
| Ferdinand Eimermacher GmbH. |
|                        | Westring 24, D-48356 Nordwalde  Attn:  President  FAX:  49 25 73/20 53                                      |

 

or to such otheraddress as the party shall designate by written notice given to the otherparty.  All notices, information,reports and other communications in connection with this Agreement shall be inEnglish.

 

10.4                           Ifany provision of this Agreement shall be held to any extent invalid orunenforceable, such provision shall be deemed amended to conform to applicablelaws and to accomplish the intentions of the parties.  The headings in this Agreement are for convenience only and shallnot be used in the interpretation of this Agreement.

 

10.5                           Nowaivers of any right under this Agreement shall be deemed effective unlesscontained in a writing signed by the party charged with such waiver, and no

 

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waiver of anyright arising from any breach or failure to perform shall be deemed to be awaiver of any future right or of any other right arising under this Agreement.

 

10.6                           ThisAgreement may be executed in one (1) or more counterparts, each of which shallbe deemed an original, but all of which together shall constitute one and thesame instrument.  This Agreement may beexecuted by facsimile, which shall be deemed an original.

 

10.7                           ThisAgreement has been submitted to the scrutiny of both parties and their counseland shall be given a fair and reasonable interpretation in accordance with thewords hereof, without consideration or weight being given to its being draftedby or for one of the parties.

 

10.8                           Inthe performance of this Agreement, each party shall comply with all laws,regulations, rules, orders and other requirements, now or hereafter in effect,of governmental authorities having jurisdiction.

 

10.9                           Theparties are and shall be independent contractors.  The relationship between the parties created by this Agreementshall not constitute a partnership, joint venture, employment or agency.  Neither party shall have the authority tomake any statements, representations or commitments of any kind, or to take anyaction, that shall be binding on the other party.

 

10.10                     Anydispute, controversy or difference arising out of or with respect to thisAgreement or the breach of this Agreement, other than applications forinjunctive relief, shall be resolved by binding arbitration.  The arbitration shall be held in London, UKand conducted in English in accordance with the rules of the Internationalchamber of Commerce before one arbitrator. The arbitrator shall apply the substantive law of the UK and shall notbe bound by the rules of evidence.  Fulljudicial review shall be available to either party as to matters of law, butnot matters of fact, and to such matters as to which arbitration awards areotherwise subject to judicial review under English law.  Judgment upon the award rendered by thearbitrators may be entered in any court having jurisdiction.  The prevailing party, as determined by thearbitrator, shall be entitled to be fully reimbursed by the other party for allcosts in connection with the arbitration, including reasonable attorney fees.

 

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IN WITNESSWHEREOF, the parties have caused this Agreement to be duly executed as of theday and year first above written.

 
|   | **ALCIDE  CORPORATION**          |
|--------|----------------------------------|
|   |                             |
|   |                             |
|   | By:                              |   |   |
|   | Corporate  President             |
|   |                             |
|   | **Ferdinand  Eimermacher GmbH.** |
|   |                             |
|   |                             |
|   | By:                              |   |   |
|   |                             |
|   | Its:                             |   |   |

 

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**EXHIBIT A**

** **

**PATENT RIGHTS**

 

Issued Patents

 

| **Territory** |   | **No.**    |   | **Title**                                       |   |
|---------------|--------|------------|--------|-------------------------------------------------|--------|
|          |   |       |   |                                            |   |
| United States |   | Re. 36,064 |   | Disinfection Method and Composition Therefore   |   |
|          |   |       |   |                                            |   |
| United States |   | 4,891,216  |   | Disinfecting Compositions and Methods Therefore |   |
|          |   |       |   |                                            |   |
| United States |   | 4,986,990  |   | Disinfecting Method and Composition Therefore   |   |
|          |   |       |   |                                            |   |
| Germany       |   | EP 176558  |   | Disinfecting Method and Composition Therefore   |   |
|          |   |       |   |                                            |   |
| Germany       |   | EP 287074  |   | Disinfecting Composition                        |   |
|          |   |       |   |                                            |   |
| Germany       |   | EP 565134  |   | Disinfecting Method and Composition Therefore   |   |

 

**(Listingof relevant Patents)**

 

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**EXHIBIT B**

 

**LICENSINGFEES**

 

**(Basedan volume sold)**

 

Licensing fees will be based on the following percentage of theEimermacher dealer price list with a floor price as listed:

 
|                         |   | **Per Liter  sold** |   | **Floor  Price per liter*** |   |
|------------------------------|--------|---------------------|--------|-----------------------------|--------|
|                         |   |                |   |                        |   |
| UDDERgold  Platinum          |   | [***]               |   | [***]                       |   |
|                         |   |                |   |                        |   |
| 4XLA                         |   | [***]               |   | [***]                       |   |
|                         |   |                |   |                        |   |
| DIPPINgold                   |   | [***]               |   | [***]                       |   |
|                         |   |                |   |                        |   |
| Private  Label/eimügold |   | [***]               |   | [***]                       |   |

 

[***]

 

[***]

 

Licensing fees are confidential per section 7 of the Agreement.

 

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**EXHIBIT C**

 

**ANNUALCOMMITMENTS**

 

| Year 1 |   | [***] |   |
|--------|--------|-------|--------|
| Year 2 |   | [***] |   |
| Year 3 |   | [***] |   |
| Year 4 |   | [***] |   |
| Year 5 |   | [***] |   |

 

[***]

 

•                                          Annualcommitments for years 6 through 10 will set by mutual agreement 90 days priorto the end of year 5.

 

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**EXHIBITD**

 

**ALCIDEMARKS**

 

UDDERgold®

 

UDDERgold®Platinum

 

DIPPINGOLD®

 

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