**Exhibit 10.1**

 

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***         INDICATES MATERIAL THAT HAS BEENOMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCHOMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSIONPURSUANT TO RULE 24b-2 UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, ASAMENDED.

 

 

**LICENSE AND COMMERCIALIZATION AGREEMENT**

 

 

**BY AND BETWEEN**

 

 

**REDPOINT BIO CORPORATION**

 

 

**AND**

 

 

**INTERNATIONAL FLAVORS & FRAGRANCES INC.**

 

 

**DATED AS OF JUNE 29, 2010**

 

----

 

**TABLE OF CONTENTS**

 
| ** **     | ** **                          | **Page** |
|----------------|-------------------------------------|----------|
|           |                                |     |
| ARTICLE 1 | DEFINITIONS                         | 1        |
|           |                                |     |
| 1.1            | Definitions                         | 1        |
|           |                                |     |
| 1.2            | Interpretation                      | 5        |
|           |                                |     |
| 1.3            | Additional Definitions              | 5        |
|           |                                |     |
| ARTICLE 2 | LICENSES                            | 6        |
|           |                                |     |
| 2.1            | License Grants                      | 6        |
|           |                                |     |
| 2.2            | Sublicensing                        | 7        |
|           |                                |     |
| 2.3            | Subcontractors                      | 7        |
|           |                                |     |
| 2.4            | No Implied Licenses                 | 7        |
|           |                                |     |
| 2.5            | Retained Rights                     | 7        |
|           |                                |     |
| 2.6            | Nonassertion                        | 7        |
|           |                                |     |
| ARTICLE 3 | REGULATORY RESPONSIBILITIES         | 8        |
|           |                                |     |
| 3.1            | Overview                            | 8        |
|           |                                |     |
| 3.2            | Regulatory Notification             | 8        |
|           |                                |     |
| 3.3            | Reporting                           | 8        |
|           |                                |     |
| ARTICLE 4 | DEVELOPMENT AND COMMERCIALIZATION   | 8        |
|           |                                |     |
| 4.1            | Overview and Diligence              | 8        |
|           |                                |     |
| 4.2            | Commercialization Plans and Reports | 8        |
|           |                                |     |
| 4.3            | Expenses and Responsibilities       | 9        |
|           |                                |     |
| ARTICLE 5 | FINANCIAL TERMS                     | 9        |
|           |                                |     |
| 5.1            | Upfront Fee                         | 9        |
|           |                                |     |
| 5.2            | IFF Milestone Payments              | 9        |
|           |                                |     |
| 5.3            | Royalties on Purchases of Reb C     | 9        |
|           |                                |     |
| ARTICLE 6 | PAYMENT TERMS                       | 10       |
|           |                                |     |
| 6.1            | Payment Method                      | 10       |
|           |                                |     |
| 6.2            | Payment Schedules; Reports          | 10       |
|           |                                |     |
| 6.3            | Taxes                               | 10       |
|           |                                |     |
| 6.4            | Records Retention; Audit            | 11       |
|           |                                |     |
| ARTICLE 7 | CONFIDENTIALITY                     | 11       |
|           |                                |     |
| 7.1            | Confidential Information            | 11       |

 

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**TABLE OF CONTENTS**

(continued)

 
| ** **      | ** **                                            | **Page** |
|-----------------|-------------------------------------------------------|----------|
|            |                                                  |     |
| 7.2             | Publicity; Filing of this Agreement                   | 13       |
|            |                                                  |     |
| 7.3             | Publication                                           | 14       |
|            |                                                  |     |
| 7.4             | Use of Names                                          | 14       |
|            |                                                  |     |
| 7.5             | Confidentiality of this Agreement                     | 14       |
|            |                                                  |     |
| 7.6             | Survival                                              | 14       |
|            |                                                  |     |
| ARTICLE 8  | MANUFACTURING AND SUPPLY                              | 14       |
|            |                                                  |     |
| 8.1             | Manufacturing and Supply                              | 14       |
|            |                                                  |     |
| ARTICLE 9  | OWNERSHIP OF INTELLECTUAL PROPERTY AND PATENT  RIGHTS | 15       |
|            |                                                  |     |
| 9.1             | Inventorship; Ownership of Inventions                 | 15       |
|            |                                                  |     |
| 9.2             | Assignment by Employees                               | 15       |
|            |                                                  |     |
| 9.3             | Filing, Prosecution and Maintenance of Patents        | 15       |
|            |                                                  |     |
| 9.4             | Cooperation                                           | 16       |
|            |                                                  |     |
| 9.5             | Infringement by Third Parties                         | 16       |
|            |                                                  |     |
| 9.6             | Trademarks                                            | 17       |
|            |                                                  |     |
| ARTICLE 10 | REPRESENTATIONS AND WARRANTIES                        | 17       |
|            |                                                  |     |
| 10.1            | Representations and Warranties                        | 17       |
|            |                                                  |     |
| 10.2            | Limitation on Representations or Warranties           | 18       |
|            |                                                  |     |
| 10.3            | Disclaimer of Warranty                                | 18       |
|            |                                                  |     |
| 10.4            | Limitation of Liability                               | 19       |
|            |                                                  |     |
| 10.5            | Essential Basis                                       | 19       |
|            |                                                  |     |
| ARTICLE 11 | TERM AND TERMINATION                                  | 19       |
|            |                                                  |     |
| 11.1            | Term                                                  | 19       |
|            |                                                  |     |
| 11.2            | Termination                                           | 19       |
|            |                                                  |     |
| 11.3            | Effects of Termination                                | 20       |
|            |                                                  |     |
| 11.4            | Accrued Rights                                        | 20       |
|            |                                                  |     |
| 11.5            | Survival                                              | 20       |
|            |                                                  |     |
| ARTICLE 12 | INDEMNIFICATION; INSURANCE                            | 21       |
|            |                                                  |     |
| 12.1            | Indemnification                                       | 21       |
|            |                                                  |     |
| 12.2            | Notice of Claim                                       | 21       |

 

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**TABLE OF CONTENTS**

(continued)

 
| ** **      | ** **                      | **Page** |
|-----------------|---------------------------------|----------|
|            |                            |     |
| 12.3            | Control of Defense              | 22       |
|            |                            |     |
| 12.4            | Right to Participate in Defense | 22       |
|            |                            |     |
| 12.5            | Settlement                      | 22       |
|            |                            |     |
| 12.6            | Cooperation                     | 22       |
|            |                            |     |
| 12.7            | Insurance                       | 23       |
|            |                            |     |
| ARTICLE 13 | DISPUTE RESOLUTION              | 23       |
|            |                            |     |
| 13.1            | Disputes                        | 23       |
|            |                            |     |
| 13.2            | Arbitration                     | 23       |
|            |                            |     |
| 13.3            | Jurisdiction                    | 24       |
|            |                            |     |
| 13.4            | Injunctive Relief               | 24       |
|            |                            |     |
| 13.5            | Governing Law                   | 24       |
|            |                            |     |
| ARTICLE 14 | MISCELLANEOUS                   | 24       |
|            |                            |     |
| 14.1            | Entire Agreement; Amendment     | 24       |
|            |                            |     |
| 14.2            | Force Majeure                   | 24       |
|            |                            |     |
| 14.3            | Notices                         | 25       |
|            |                            |     |
| 14.4            | Independent Contractors         | 25       |
|            |                            |     |
| 14.5            | Maintenance of Records          | 25       |
|            |                            |     |
| 14.6            | No Strict Construction          | 26       |
|            |                            |     |
| 14.7            | Assignment                      | 26       |
|            |                            |     |
| 14.8            | Counterparts                    | 26       |
|            |                            |     |
| 14.9            | Further Actions                 | 26       |
|            |                            |     |
| 14.10           | Severability                    | 26       |
|            |                            |     |
| 14.11           | Headings                        | 26       |
|            |                            |     |
| 14.12           | No Waiver                       | 26       |

 

iii

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**LICENSE AND COMMERCIALIZATION AGREEMENT**

 

THISLICENSE AND COMMERCIALIZATION AGREEMENT (this “**Agreement**”)is dated as of June 29, 2010 (the “**Effective Date**”)by and between Redpoint Bio Corporation, a Delaware corporation (“**Redpoint**”) and International Flavors & Fragrances Inc.,a New York corporation (“**IFF**”).  Redpoint and IFF are sometimes referred toherein individually as a “**Party**” andcollectively as the “**Parties**”.

 

**RECITALS**

 

**WHEREAS**, Redpoint is the owner of the Licensed Technologyand desires to grant IFF the right to use the Licensed Technology to Develop,Manufacture, use and Commercialize Reb C and Products;

 

**WHEREAS**, IFF has expertise in Developing, Manufacturing andCommercializing flavor and fragrance products and desires to obtain fromRedpoint the right to use the Licensed Technology to Develop, Manufacture, useand Commercialize Reb C and Products; and

 

**WHEREAS**, IFF intends to enter into supply agreements withThird Parties for supply of the Reb C for use in Products.

 

**NOW, THEREFORE**, in consideration of the foregoing premisesand the mutual covenants contained herein, the Parties, intending to be legallybound, agree as follows:

 

**ARTICLE 1DEFINITIONS**

 

1.1           **Definitions**.  Thefollowing terms shall have the following meanings as used in this Agreement:

 

1.1.1        “**Affiliate**” means a Person that controls, is controlled by oris under common control with a Party. For the purposes of this definition, the word “control” (including, withcorrelative meaning, the terms “controlled by” or “under common control with”)means the actual power, either directly or indirectly through one or moreintermediaries, to direct the management and policies of such Person, whetherby the ownership of at least fifty percent (50%) of the voting stock of suchPerson (it being understood that the direct or indirect ownership of a lesserpercentage of such stock shall not necessarily preclude the existence ofcontrol), or by contract or otherwise.

 

1.1.2        “**Bakery Products**” means ***.

 

1.1.3        “**Beverages**” means ***.

 

1.1.4        “**Business Day**” means any day other than (a) Saturday orSunday or (b) any other day on which banks in New York, NY are required to beclosed.

 

1.1.5        “**Commercialization**” and “**Commercialize**”mean any and all activities, excluding Development or Manufacturing, necessaryor desirable to realize commercial sales of 

 

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Products in accordance with the Law, including distributing, importing,transporting, customs clearance, exporting, warehousing, packing, handling anddelivering to customers, as well as offering for sale and sales, marketing,promoting and reimbursement related activities, including booking sales.  When used as a verb “Commercialize” means toengage in Commercialization.

 

1.1.6        “**Confectionary Products**” means ***.

 

1.1.7        “**Control**” means, with respect to any intellectual propertyright or other tangible or intangible property, that a Party or one of itsAffiliates owns or has a license or sublicense to such item or right, and hasthe ability to grant access, license or sublicense in or to such right without violatingthe terms of any agreement or other arrangement with any Third Party.

 

1.1.8        “**Dairy Products**” means ***.

 

1.1.9        “**Develop**” and “**Development**”means any and all activities necessary or desirable to research, develop andachieve Regulatory Notification excluding Manufacturing of Reb C in compliancewith the Law, including research and development activities related to thegeneration, characterization, optimization, construction, expression, use andproduction of Products, test method development and stability testing,toxicology, quality assurance/quality control, delivery systems, formulation,statistical analysis, report writing, product approval and registrationactivities and all other activities with the intent and for the purpose ofgenerating data for submission to regulatory authorities.  When used as a verb, “Develop” means toengage in Development.

 

1.1.10      “**Dollars**” or “**$**” shall meanthe legal tender of the United States of America.

 

1.1.11      “**Exclusivity Period**” means the period commencing on theEffective Date and ending on the fifth anniversary thereof.

 

1.1.12      “**FDA**” means the United States Food and Drug Administration orany successor federal agency thereto.

 

1.1.13      “**FEMA**” means the Flavor and Extract Manufacturers Associationof the U.S. or any successor organization thereto.

 

1.1.14      “**First Purchase of Reb C**” means the first commercial purchaseby IFF or any of its Affiliates, agents or sublicensees of Reb C in anaggregate amount exceeding $*** for use in Products from a Supplier under a SupplyAgreement.

 

1.1.15      “**Governmental Authority**” means any court, tribunal,arbitrator, agency, legislative body, commission, official or otherinstrumentality of (a) any government of any country, (b) a federal, state,province, county, city or other political subdivision thereof or (c) anysupranational body, including the FDA.

 

2

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1.1.16      “**GRAS Assessment**” means self-assessment or assessment by FEMAor other organization in the Territory of generally recognized as safe (“**GRAS**”) of Reb C as a food ingredient, flavoring compound,flavor enhancer or taste modulator.

 

1.1.17      “**IFF Invention**” means an Invention that is discovered, made,reduced to practice or conceived by an employee, agent or consultant of (a) eitherParty or a person under an obligation of assignment to either Party solely orjointly with a Third Party during the Term in the course of performing suchParty’s obligations under this Agreement that relates to flavor or flavorformulations, or the use of Reb C in flavor formulations, or (b) IFF or aperson under any obligation of assignment to IFF solely or jointly with a ThirdParty during the Term in the course of performing IFF’s obligations under thisAgreement, and, in the case of both clauses (a) and (b), all Patents claimingpatentable Inventions therein, other than Redpoint Inventions.

 

1.1.18      “**Invention**” means, whether patentable or not, any writing,invention, discovery, improvement or other technology that is discovered, made,reduced to practice or conceived during the Term.

 

1.1.19      “**Know-How**” means any non-public information, results and dataof any type whatsoever, in any tangible or intangible form whatsoever,including databases, ideas, discoveries, inventions, trade secrets, practices,methods, protocols, tests, assays, techniques, specifications, processes,formulations, formulae, knowledge, know-how, skill, experience, materials,including products and compositions, scientific, technical or test data(including toxicological data), analytical and quality control data, stabilitydata, studies and procedures, drawings, plans, designs, diagrams, sketches,technology, documentation, and Patent-related and other legal information ordescriptions.

 

1.1.20      “**Law**” or “**Laws**” means alllaws, statutes, rules, codes, regulations, orders, judgments and/or ordinancesof any Governmental Authority having jurisdiction in the Territory.

 

1.1.21      “**Licensed Technology**” means the technology reflected in theRedpoint Patents and the Redpoint Know-How and all trade secrets andproprietary information developed or Controlled by Redpoint or its Affiliateson the Effective Date or any time during the Term (but excluding any IFFInventions) that is reasonably necessary or useful to Develop, Manufacture orCommercialize Reb C in the Territory.

 

1.1.22      “**Losses**” means any and all amounts paid or payable to ThirdParties with respect to a Third Party Claim, including damages (including allincidental and consequential damages), deficiencies, defaults, awards,settlement amounts, assessments, fines, dues, penalties, costs, liabilities,obligations, taxes, liens, losses, lost profits, fees and expenses (including,court costs, interest and reasonable fees of attorneys, accountants and otherexperts).

 

1.1.23      “**Manufacture**” means all activities related to themanufacturing and production of Reb C and Products, including but not limitedto manufacturing supplies for Development and Commercialization, packaging,in-process and finished product testing, release of product or any component oringredient thereof, quality assurance and quality control 

 

3

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activities related to manufacturing and release of product, ongoingstability tests, storage, shipment, and regulatory activities related to any ofthe foregoing.

 

1.1.24      “**Patent**” means (a) valid and enforceable patents,re-examinations, reissues, renewals, extensions, supplementary protectioncertificates and term restorations, any confirmation patent or registrationpatent or patent of addition based on any such patent, (b) pending applicationsfor patents, including continuations, continuations-in-part, re-examinations,reissues, renewals, extensions, supplementary protection certificates and termrestorations divisional, provisional and substitute applications (c) allforeign counterparts of any of the foregoing, and (d) all priority applicationsof any of the foregoing.

 

1.1.25      “**Person**” means any natural person, corporation, firm,business trust, joint venture, association, organization, company, partnershipor other business entity, or any government, or any agency or politicalsubdivisions thereof.

 

1.1.26      “**Products**” means any flavor systems used in Beverages, DairyProducts, Confectionary Products, Snack Products and Bakery Products containingReb C.

 

1.1.27      “**Reb C**” means ***.

 

1.1.28      “**Redpoint Invention**” means an Invention that is discovered,made, reduced to practice or conceived by an employee, agent or consultant of(a) either Party or a person under an obligation of assignment to either Partysolely or jointly with a Third Party during the Term in the course ofperforming such Party’s obligations under this Agreement that relates tomanufacture of Reb C or (b) Redpoint or a person under any obligation ofassignment to Redpoint solely or jointly with a Third Party during the Term inthe course of performing Redpoint’s obligations under this Agreement, and, inthe case of both clauses (a) and (b), all Patents claiming patentableInventions therein, other than IFF Inventions.

 

1.1.29      “**Redpoint Know-How**” means any Know-How that is necessary forthe Development, Manufacture, Commercialization and/or use of Reb C in theTerritory that either (a) is Controlled by Redpoint or its Affiliates on theEffective Date or (b) comes within Redpoint’s or its Affiliates’ Control duringthe Term, including Redpoint Inventions.

 

1.1.30      “**Redpoint Patents**” means any Patent listed on Schedule 1.1.30that is necessary for the Development, Manufacture, Commercialization and/oruse of Reb C in the Territory that (a) cover Redpoint Know-How and (b) areControlled by Redpoint on the Effective Date or come within Redpoint’s Controlduring the Term.

 

1.1.31      “**Regulatory Notification**” means all notifications,assessments (including GRAS Assessments), approvals, licenses, registrations orauthorizations of any regional, federal, state or local regulatory agency,department, bureau or other entity (whether governmental or nongovernmental),necessary or desirable for the Development, Manufacture, use or Commercializationof Reb C or Products in the Territory.

 

1.1.32      “**Regulatory Submission**” means a submission (including anyamendments thereto) for Regulatory Notification necessary or desirable beforecommercial sale 

 

4

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or use of Reb C or Products in a regulatory jurisdiction in theTerritory submitted to a regulatory or other authority.

 

1.1.33      “**Royalty Term**” means the period commencing on First Purchaseof Reb C and ending on the later of (a) the fifth (5th) anniversary thereofand, (b) if a Redpoint Patent or a Patent Controlled by IFF or any of itsAffiliates covering Reb C or a Product has issued, the date on which Reb C orsuch Product is no longer covered by a Valid Claim in any country in theTerritory.

 

1.1.34      “**Snack Products**” means ***.

 

1.1.35      “**Supplier**” means any producer(s) manufacturing Reb C inaccordance with suitable specifications allowing for a GRAS Assessment in theU.S.

 

1.1.36      “**Territory**” means all countries of the world.

 

1.1.37      “**Third Party**” means any entity other than Redpoint or IFF ortheir respective Affiliates.

 

1.1.38      “**U.S.**” means the United States of America and itsterritories, possessions and commonwealths.

 

1.1.39      “**Valid Claim**” means any claim of an issued and unexpiredPatent that has not been rejected, revoked or held unenforceable or invalid bya final, nonappealable decision of a court or other Governmental Authority ofcompetent jurisdiction or unappealed within the time allowable for appeal, andthat has not been explicitly disclaimed, or admitted to be invalid ofunenforceable through reissue, disclaimer or otherwise.

 

1.2           **Interpretation**. Unless the context of this Agreement otherwise requires, (a) words ofone gender include the other gender; (b) the terms “hereof,” “herein,” “hereby,”and other similar words refer to this entire Agreement; (c) the words “include”,“includes”, and “including” when used in this Agreement shall be deemed to befollowed by the words “without limitation”, unless otherwise specified; (d) theterms “Article”, “Section” and “Schedule” refer to the specified Article,Section and Schedule of this Agreement; and (e) the phrase “unreasonablywithheld”, when used in connection with the right of a Party to consent orapprove an action, shall mean that such consent or approval shall not beunreasonably withheld, conditioned or delayed. Whenever this Agreement refers to a number of days, unless otherwisespecified, such number shall refer to calendar days.

 

1.3           **Additional Definitions**. Each of the following definitions is set forth in the Section of thisAgreement indicated below:

 
| **Definition**            | ** ** | **Section** |
|---------------------------|------------|-------------|
| Agreement                 |       | Preamble    |
| Confidential  Information |       | 7.1.1       |
| Disclosing  Party         |       | 7.1.1       |
| Effective  Date           |       | Preamble    |
| Force  Majeure Event      |       | 14.2        |

 

5

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| **Definition**        | ** ** | **Section** |
|-----------------------|------------|-------------|
| GRAS                  |       | 1.1.16      |
| IFF                   |       | Preamble    |
| IFF  Indemnitees      |       | 12.1.2      |
| IFF  Marks            |       | 9.5.5       |
| Indemnitee            |       | 12.2        |
| Indemnitees           |       | 12.2        |
| Infringement  Claim   |       | 9.5.5       |
| Milestone             |       | 5.2         |
| Parties               |       | Preamble    |
| Party                 |       | Preamble    |
| Redpoint              |       | Preamble    |
| Redpoint  Indemnitees |       | 12.1.1      |
| Supply  Agreements    |       | 8.1         |
| Term                  |       | 11.1        |
| Third  Party Claim    |       | 12.1.1      |

 

**ARTICLE 2LICENSES**

 

2.1           **License Grants**.

 

2.1.1        Subjectto Section 2.1.2 and the other terms and conditions of this Agreement, Redpointhereby grants to IFF an exclusive (even as to Redpoint) royalty-bearing license(with the right to grant sublicenses in accordance with Section 2.2) under andto the Licensed Technology to Develop, Manufacture, use and Commercialize Reb Cand Products in the Territory during the Term subject to the following:

 

(a)           theFirst Purchase of Reb C occurs prior to the *** anniversary of the EffectiveDate; and

 

(b)           royaltiescalculated pursuant to Section 5.3.1 for any calendar quarter on a rollingtwelve-month basis are greater than or equal to the minimum royalties due andpayable pursuant to Section 5.3.2 for such calendar quarter;

 

provided that in the case of clauses (a) and (b)above, the Milestones shall have been achieved; provided, further, that, to theextent that either of the conditions above are not met, the exclusive licensegranted hereunder shall become a non-exclusive license at such time.

 

2.1.2        Nolater than ninety (90) days prior to the expiration of the Exclusivity Period,the Parties will meet to negotiate in good faith an extension of the exclusivelicense granted in Section 2.1.1 and the amount of royalties that shall bepayable connection therewith.  If at suchtime, the Parties are unable to agree in good faith on the terms of such an extension,the exclusive license granted in Section 2.1.1 above shall become non-exclusiveupon the expiration of the Exclusivity Period.

 

6

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2.2           **Sublicensing**.

 

2.2.1        **Generally**.  IFF shallhave the right to sublicense the license grants under Section 2.1 to itsAffiliates and, with the prior consent of Redpoint, to Third Parties; providedthat such a sublicense by IFF to an Affiliate shall, unless otherwise agreed byRedpoint, automatically terminate upon a change of control of such Affiliate inconnection with which such Affiliate ceases to be an Affiliate of IFF or upontermination of the license grants hereunder. IFF shall ensure that each sublicense granted in accordance with thisSection 2.2 requires its Affiliate or permitted sublicensee to comply with allof the applicable terms and conditions of this Agreement as if such Affiliateor permitted sublicensee were a party to this Agreement and provides that suchAffiliate or sublicensee shall not further sublicense its rights.  IFF shall be responsible for its Affiliates’and permitted sublicensees’ performance of and compliance with the applicableterms and conditions of this Agreement.

 

2.2.2        **Sublicensing Payments; Royalties**.  In the event that IFF or any of itsAffiliates receives any upfront, milestone or other similar payments inconnection with its sublicense of the license grants as permitted hereunder,IFF will pay to Redpoint, within thirty (30) days of receipt of such payment byIFF or such Affiliate, an amount equal to *** of such payment.  In the event that IFF or any of itsAffiliates is entitled to receive a royalty or other similar payment inconnection with its sublicense of the license grants as permitted hereunder,IFF will pay to Redpoint a percentage of such royalty at a rate equal to *** ofthe royalty payable to IFF or such Affiliate, payable within thirty (30) daysof receipt of each such payment by IFF or such Affiliate, in accordance withthe terms of the applicable sublicense.

 

2.3           **Subcontractors**.  IFFshall remain responsible for complying with all terms and conditions of thisAgreement regardless of whether a subcontractor performs any part of thisAgreement.  Any Third Partysubcontractors performing any of IFF’s obligations hereunder shall be subjectto confidentiality and non-use obligations at least as stringent as those setforth in Article 8 and IFF shall ensure that the agreement with such ThirdParty enables Redpoint to exercise the same rights with respect to Inventionsunder this Agreement as if IFF had done the work itself.

 

2.4           **No Implied Licenses**. No implied licenses are granted under this Agreement.  IFF hereby covenants and agrees not to useany of its rights under the licenses set forth in this Article 2 except as expresslypermitted in this Agreement.

 

2.5           **Retained Rights**. Except for the express rights granted to IFF in this Agreement, IFFshall not enjoy or exercise any proprietary or property right or otherwise haveany other right, title or interest in, to or under the Redpoint Patents,Redpoint Know-How, Redpoint Inventions, and IFF shall not represent to anyThird Party that it has any such proprietary or property right, or any otherright, title or interest.  Furthermore,any rights of Redpoint not expressly granted to IFF under the provisions ofthis Agreement shall be retained by Redpoint.

 

2.6           **Nonassertion**.  Subjectto the terms and conditions of this Agreement, including the rights granted toIFF pursuant to the exclusive license provided herein, IFF and its Affiliateshereby covenant and agree not to, alone or in cooperation with any Third Party,assert that the exercise by Redpoint, its Affiliates, or their respectivesublicensees of their rights to Develop, Manufacture, use or otherwiseCommercialize Reb C or any product containing Reb C covered by the LicensedTechnology infringes any intellectual property rights of IFF or its Affiliatesor

 

7

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their respective sublicensees. This covenant will run with and attach to any and all intellectualproperty owned or controlled, in whole or in part, by Redpoint and shall bebinding upon any assignee of any intellectual property from Redpoint.   This provision shall survive the terminationor expiration of this Agreement.

 

**ARTICLE 3REGULATORY RESPONSIBILITIES**

 

3.1           **Overview**.  IFF shallbe responsible for seeking and achieving Regulatory Notification for Reb C andProducts in the Territory, and all costs and expenses in connectiontherewith.  IFF shall use itscommercially reasonable efforts to seek and achieve Regulatory Notification forReb C in the Territory, including GRAS Assessment with FEMA in the U.S.

 

3.2           **Regulatory Notification**. IFF shall be responsible, at its own expense, for preparing and filingRegulatory Submissions and seeking and achieving Regulatory Notifications forReb C in the Territory, including generating any data and other information,preparing all reports, and assembling panels of qualified scientific expertsnecessary or desirable as part of a Regulatory Submission.  All such Regulatory Submissions shall befiled in the name of IFF or its designees. IFF shall permit Redpoint access to and grant Redpoint the right toreference and use all data, regulatory filings and regulatory communicationsassociated with Reb C.

 

3.3           **Reporting**.  On a quarterlybasis, due on each April 1, July 1, October 1 and January 2 after the EffectiveDate and ending on achievement of Milestone 2, IFF shall provide Redpoint witha detailed summary of all material meetings, conference calls, documents andcorrespondence IFF has had with or receives from FEMA or other similarorganization or any Governmental Authority in each case relating to anyRegulatory Submission or Regulatory Notification for Reb C and Products duringthe immediately preceding two months.

 

**ARTICLE 4DEVELOPMENT AND COMMERCIALIZATION**

 

4.1           **Overview and Diligence**. IFF shall be solely responsible for Developing and Commercializing Reb Cand the Products in the Territory.  IFFshall use commercially reasonable efforts to Commercialize Reb C and the Productsin the Territory.

 

4.2           **Commercialization Plans and Reports**.

 

4.2.1        **Commercialization Plans. **IFFshall prepare a written commercialization plan that describes the significantCommercialization activities to be undertaken by IFF with respect to Reb C andthe Products in the Territory in the next calendar year (each, a “**Commercialization Plan**”). The initial Commercialization Plan for the Products shall be preparedand delivered to Redpoint no later than twelve (12) months prior to theanticipated First Purchase of Reb C.  Byno later than November 1st of each calendar year after the calendar year inwhich the initial Commercialization Plan for the Products was delivered, IFFshall prepare and deliver to Redpoint an updated Commercialization Plan for thefollowing calendar year.  TheCommercialization Plan shall also include a good faith forecast of quantitiesin kilograms of Reb C to be used in Products in the Territory for such calendaryear.

 

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4.2.2        **Reports.** On a quarterly basis, due on each April 1, July 1,October 1 and January 2 after the Effective Date, IFF shallprepare and deliver to Redpoint a written report summarizing IFF’s Developmentand Commercialization activities with respect to Reb C and the Products in theTerritory performed by IFF during the prior two month period.

 

4.3           **Expenses and Responsibilities**.  IFF shall bear all of its costs and expensesassociated with the Development and Commercialization of Reb C and the Productsfor sale or distribution in the Territory. IFF shall have the responsibility to distribute, sell, record sales andcollect payments for Reb C and the Products in the Territory.  IFF shall have responsibility forestablishing and modifying the terms and conditions with respect to the sale ofReb C and the Products in the Territory, including the price or prices at whichReb C or the Products will be sold, any discount applicable to payments orreceivables and similar matters.

 

**ARTICLE 5FINANCIAL TERMS**

 

5.1           **Upfront Fee**.  Aspartial payment for the rights and licenses granted by Redpoint pursuant tothis Agreement, IFF shall pay to Redpoint an aggregate upfront payment ofFive Hundred Thousand Dollars ($500,000) on the Effective Date, which paymentshall be non-creditable and non-refundable.

 

5.2           **IFF Milestone Payments**. In further consideration for the rights and licenses granted by Redpointhereunder, IFF shall also pay to Redpoint the payments set forth below forthe achievement by IFF of each such milestone referred to therein (each, a “**Milestone**”):

 
| ** **  | ** ** | **Milestone Event**                                                                                                                                                                                                             | ** ** | **Amount** | ** ** |
|-------------|------------|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------|------------|------------|
| Milestone 1 |       | Upon  identification and validation of the first Supplier for commercial quantities  of Reb C and agreement on cost, volume specifications and stability terms  with such Supplier as set forth in an executed Supply Agreement |       | $          | 500,000    |   |
| Milestone 2 |       | Upon  receipt of GRAS Assessment for Reb C                                                                                                                                                                                      |       | $          | 500,000    |   |

 

In the event a Milestone is achieved, the Partyachieving such Milestone shall promptly, but in no event more than five (5) BusinessDays after the achievement of such Milestone, notify the other Party in writingof the achievement of the same.  For allMilestones achieved, IFF shall promptly, but in no event more than thirty(30) days after the achievement of each such Milestone, remit payment toRedpoint for such Milestone.

 

5.3           **Royalties on Purchases of Reb C**.

 

5.3.1        **Royalties Payable on Purchases of Reb C**.  Subject to Section 2.1.2, during theRoyalty Term, as further consideration for Redpoint’s grant of the rights andlicenses to IFF hereunder, IFF will pay to Redpoint a royalty equal to ***per *** of Reb C purchased by IFF or any of its Affiliates, agents orsublicensees from a Supplier for use in Products; provided that such royaltyshall be increased to *** per *** of Reb C purchased by IFF or any itsAffiliates, agent or sublicensees from a Supplier for use in Products upon theissuance of a Patent

 

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Controlled by Redpoint or IFF or their respective Affiliates coveringReb C as a sweetness enhancer or compositions of Reb C.

 

5.3.2        **Minimum Royalties**. Notwithstanding the foregoing, IFF will pay minimum royalties of noless than (i) *** during the first (1st) twelve month period commencingupon First Purchase of Reb C, (ii) *** during the second (2nd) twelvemonth period commencing upon First Purchase of Reb C, (iii) *** during thethird (3rd) twelve month period commencing upon First Purchase of Reb C, and (iv) ***during each successive twelve month period thereafter during the Royalty Term.

 

**ARTICLE 6PAYMENT TERMS**

 

6.1           **Payment Method**.  Allamounts due to Redpoint hereunder will be paid in Dollars by wire transfer inimmediately available funds to an account designated by Redpoint.  Any undisputed payments or portions thereofdue hereunder that are not paid by the date such payments are due under thisAgreement will bear simple interest at the lower of a rate per annum equal to (a) onepercent (1%) per month, or (b) the maximum rate permitted by applicableLaw, calculated on the number of days such payment is delinquent.

 

6.2           **Payment Schedules; Reports**. The payments due pursuant to Sections 5.1 and 5.2 are due and payable onthe dates described therein.  Royaltypayments due pursuant to Section 5.3 are due and payable within thirty(30) days of the end of each calendar quarter. IFF will accompany each payment of royalties under this Agreement with areport setting forth the amount of Reb C purchased from Suppliers for use inProducts, and a calculation of the amount of royalty payment due on suchpurchases.

 

6.3           **Taxes**.  The Partiesshall use reasonable efforts to reduce tax withholding on payments made toRedpoint hereunder.  Notwithstanding suchefforts, if IFF concludes, after consultation with Redpoint, that tax withholdingsunder the laws of any country are required, IFF may deduct from anyroyalty payment that IFF is required to pay hereunder for such tax withholdingobligations.  IFF will provide Redpointwith reasonable advance notice of tax withholding obligations to which itreasonably believes that it is subject. Redpoint will provide IFF any information available to Redpoint that isnecessary to determine such withholding taxes. Such withholding taxes will be paid to the proper taxing authority forRedpoint’s account and evidence of such payment will be secured and sent toRedpoint within a reasonable period of time. The Parties will do all such lawful acts and things and sign all suchlawful deeds and documents as either Party may reasonably request from the otherParty to enable Redpoint and IFF to take advantage of any applicable legalprovision or any treaty provisions with the object of paying the sums due toRedpoint hereunder with the lowest legal amount of withholding taxes.

 

6.3.1        **Additional Withholding Taxes**.  If, as a result of any change in thecorporate status or location of IFF, or the permitted assignment of thisAgreement by IFF, additional withholding taxes become due on payments from IFFor its permitted assignee to Redpoint that would not have been due absent suchchange in corporate status or location or permitted assignment, then IFF willdeduct withholding taxes in accordance with this Section 6.3, but will, inaddition to the sums otherwise payable under this Agreement, pay to Redpoint

 

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such further sum as will ensure that, after deduction of withholdingtaxes on all such sums, the net amount received by Redpoint equals the amountthat Redpoint would have received had such additional withholding taxes notbeen deducted.

 

6.4           **Records****Retention**; **Audit**.

 

6.4.1        **Record Retention**.  IFFwill maintain complete and accurate books, records and accounts relevant forthe calculation of royalties on purchases of Reb C hereunder, in sufficientdetail to confirm the accuracy of any payments required under this Agreement,which books, records and accounts will be retained by IFF for three (3) yearsafter the end of the period to which such books, records and accounts pertain,or longer as is required by applicable Law.

 

6.4.2        **Audit**.  Redpoint willhave the right to have PricewaterhouseCoopers LLP (provided that at the time ofsuch audit there exists no conflict with such firm due to other servicesprovided to IFF), or such other independent certified public accounting firm ofinternationally recognized standing mutually acceptable to the Parties, to haveaccess during normal business hours, upon reasonable prior written notice andnot more than once in each calendar year during the Term and for three (3) yearsthereafter, or longer as is required by applicable Law, to such of the recordsof IFF, its Affiliates, sublicensees and Suppliers as may be reasonablynecessary to verify the accuracy of the calculation of purchases of Reb C fromSuppliers and any payments under sublicensing arrangements, if applicable, forany calendar year ending not more than three (3) years, or longer as isrequired by applicable Law, prior to the date of such request.  Results of such inspections shall be madeavailable to both Redpoint and IFF; *provided* that**the accounting firm shall report to the Parties only thefinal audited royalty payment amounts to be paid by IFF.  Redpoint will bear all costs of such audit,unless the audit reveals a discrepancy in Redpoint’s favor of more than fivepercent (5%), in which case IFF will bear the cost of the audit.

 

6.4.3        **Payment of Additional Amounts**.  If, based on the results of any audit,additional payments are owed to Redpoint under this Agreement, IFF willmake such additional payments within thirty (30) days after the accounting firm’swritten report is delivered to the Parties. The provisions of Section 6.1 shall apply to such payment as of thedate such additional payments were originally due.

 

6.4.4        **Confidentiality**. Redpoint will treat all information that is shared with it in connectionwith Redpoint’s audit rights under this Section 6.4 in accordance with theprovisions of Article 7.

 

**ARTICLE 7CONFIDENTIALITY**

 

7.1           **Confidential****Information**.

 

7.1.1        **Confidential Information**. As used in this Agreement, the term “**ConfidentialInformation**” means all secret, confidential or proprietaryinformation or data, whether provided in written, oral, graphic, video,computer, electronic or other form, generated pursuant to this Agreement orprovided pursuant to this Agreement by one Party (the “**Disclosing**

 

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**Party**”) to the other Party (the “**ReceivingParty**”), including but not limited to, information relating to theDisclosing Party’s existing or proposed research, development efforts, patentapplications, business or products, and any other materials that have not beenmade available by the Disclosing Party to the general public.  Notwithstanding the foregoing sentence,Confidential Information shall not include any information or materials that:

 

(a)           werealready known to the Receiving Party (other than under an obligation ofconfidentiality), at the time of disclosure by the Disclosing Party, to theextent such Receiving Party has documentary evidence to that effect;

 

(b)           weregenerally available to the public or otherwise part of the public domain at thetime of disclosure thereof to the Receiving Party;

 

(c)           becamegenerally available to the public or otherwise part of the public domain afterdisclosure or development thereof, as the case may be, and other than throughany act or omission of a Party in breach of such Party’s confidentialityobligations under this Agreement;

 

(d)           weredisclosed to a Party, other than under an obligation of confidentiality, by aThird Party who had no obligation to the Disclosing Party not to disclose suchinformation to others; or

 

(e)           wereindependently discovered or developed by or on behalf of the Receiving Partywithout the use of the Confidential Information belonging to the other Party,to the extent such Receiving Party has documentary evidence to that effect.

 

(f)            Forclarity, Redpoint Inventions shall be Confidential Information of Redpoint andIFF Inventions shall be Confidential Information of IFF.

 

7.1.2        **Confidentiality Obligations**. Each of Redpoint and IFF shall not disclose, and shall keep allConfidential Information of the other Party confidential with the same degreeof care it employs to maintain the confidentiality of its own ConfidentialInformation, but in no event less than a reasonable degree of care.  Neither Party shall use such ConfidentialInformation for any purpose other than in performance of, or in exercise of itsrights under, this Agreement or disclose the same to any other Person otherthan to such of its and its Affiliates’ directors, managers, employees,independent contractors, agents or consultants who have a need to know suchConfidential Information to implement the terms of this Agreement or enforceits rights under this Agreement; provided, however, that a Receiving Partyshall advise any of its and its Affiliates’ directors, managers, employees,independent contractors, agents or consultants who receives such ConfidentialInformation of the confidential nature thereof and of the obligations containedin this Agreement relating thereto, and the Receiving Party shall ensure(including, in the case of a Third Party, by means of a written agreement withsuch Third Party having terms at least as protective as those contained in thisArticle 7) that all such directors, managers, employees, independentcontractors, agents or consultants comply with such obligations as if they hadbeen a Party hereto.  For clarity,nothing contained herein shall restrict Redpoint from disclosing its ConfidentialInformation to its and its Affiliates’ directors, managers, employees,independent contractors, agents or consultants who are under similar

 

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confidentiality obligations as set forth herein in connection with anylicensing, commercialization, financing, acquisition or other transaction.  Upon termination of this Agreement, theReceiving Party shall return or destroy all documents, tapes or other mediacontaining Confidential Information of the Disclosing Party that remain in thepossession of the Receiving Party or its directors, managers, employees,independent contractors, agents or consultants, except that the Receiving Partymay keep one copy of the Confidential Information in the legal department filesof the Receiving Party, solely for archival purposes.  Such archival copy shall be deemed to be theproperty of the Disclosing Party, and shall continue to be subject to theprovisions of this Article 8.  It isunderstood that receipt of Confidential Information under this Agreement willnot limit the Receiving Party from assigning its employees to any particularjob or task in any way it may choose, subject to the terms and conditions ofthis Agreement.

 

7.1.3        **Permitted Disclosure and Use**.  Notwithstanding Section 7.1.2, a Partymay disclose Confidential Information of the other Party to the extent suchdisclosure is reasonably necessary to: (a) achieve Regulatory Notificationof Reb C to the extent such disclosure is made to FEMA or a similar organizationor a Governmental Authority; (b) comply with or enforce any of theprovisions of this Agreement, including to prosecute and maintain Patents; (c) complywith Laws; or (d) comply with an applicable securities laws andregulations, stock exchange or Nasdaq rules. If a Party deems it necessary to disclose Confidential Information ofthe other Party pursuant to this Section 7.1.3, such Party shall givereasonable advance notice of such disclosure to the other Party to permit suchother Party sufficient opportunity to challenge or limit such disclosure or totake measures to ensure confidential treatment of such information.

 

7.1.4        **Governmental Requirements**. Confidential Information that is disclosed by judicial or administrativeprocess shall remain otherwise subject to the confidentiality and non-useprovisions of this Section 7.1, and the Party disclosing ConfidentialInformation pursuant to law or court order shall take all steps reasonablypractical, including seeking an order of confidentiality, to ensure thecontinued confidential treatment of such Confidential Information.

 

7.1.5        **Notification**.  TheReceiving Party shall notify the Disclosing Party promptly upon discovery ofany unauthorized use or disclosure of the Disclosing Party’s Confidential Information,and will cooperate with the Disclosing Party in any reasonably requestedfashion to assist the Disclosing Party to regain possession of suchConfidential Information and to prevent its further unauthorized use ordisclosure.

 

7.2           **Publicity; Filing of this Agreement**.  Any publication, news release or other publicannouncement relating to this Agreement or to the performance hereunder, shallfirst be reviewed and approved by both Parties; *provided*,*however*, that (a) once a pressrelease or other public announcement is approved in writing by both Parties, aParty may make subsequent public disclosure of the information contained insuch press release or other public announcement without the further approval ofthe other Party, and (b) any disclosure which is required by applicableLaw as advised by the disclosing Party’s counsel may be made by such Partywithout the prior consent of the other Party. To the extent practicable, the non-disclosing Party shall be given atleast seven (7) Business Days advance notice of any such legally requireddisclosure, and shall provide any comments on the proposed disclosure duringsuch period.  To 

 

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the extent that either Party determines that it or the other Party isrequired to file or register this Agreement or a notification thereof to complywith the requirements of an applicable stock exchange or Nasdaq regulation orany Governmental Authority, including the U.S. Securities and ExchangeCommission, the Competition Directorate of the Commission of the EuropeanCommunities or the U.S. Federal Trade Commission, such Party shall promptlyinform the other Party thereof.  Prior tomaking any such filing, registration or notification, the Parties shall agreeon the provisions of this Agreement for which the Parties shall seekconfidential treatment, it being understood that if one Party determines toseek confidential treatment for a provision for which the other Party does not,then the Parties will use reasonable efforts in connection with such filing toseek the confidential treatment of any such provision.  The Parties shall cooperate, each at its ownexpense, in such filing, registration or notification, including such confidentialtreatment request, and shall execute all documents reasonably required inconnection therewith.

 

7.3           **Publication**.  On and after the Effective Date and during the Term, the followingrestrictions shall apply with respect to any academic, scientific, medical orother publication or presentation or other disclosure by IFF that contains orrefers to the Licensed Technology: (a) IFF shall provide Redpoint with anadvance copy of any such proposed publication at least thirty (30) days priorto the proposed publication date, and Redpoint shall have a reasonableopportunity to recommend any changes it reasonably believes are necessary topreserve such Licensed Technology; and (b) if Redpoint informs IFF, withinthirty (30) days of receipt of an advance copy of a proposed publication, thatsuch publication in its reasonable judgment could be expected to have amaterial adverse effect on any Licensed Technology, IFF shall delay orprevent such publication as proposed. IFF may publicly disclose without regard to the preceding requirementsof this Section 7.3 any information that was previously disclosed in apublic disclosure that was in compliance with such requirements.

 

7.4           **Use of Names**.  NeitherParty shall use the name of the other Party in relation to this transaction inany public announcement, press release or other public document without theprior written consent of such other Party, which consent shall not beunreasonably withheld; *provided*, *however*, that either Party may use the name of the otherParty in any document filed with any regulatory agency or authority, includingthe FEMA, FDA and the U.S. Securities and Exchange Commission.

 

7.5           **Confidentiality of this Agreement**.  The terms and existence of this Agreementshall be Confidential Information of each Party and, as such, shall be subject tothe provisions of this Article 7.

 

7.6           **Survival**.  Theobligations and prohibitions contained in this Article 7 shall survive theexpiration or termination of this Agreement for a period of ten (10) years.

 

**ARTICLE 8MANUFACTURING AND SUPPLY**

 

8.1           **Manufacturing and Supply**. As soon as practicable after satisfaction of Milestone 1, IFF shallenter into supply agreements, purchase orders or other supply arrangements withSuppliers for the manufacture and supply of Reb C (the “**SupplyAgreements**”).  Such SupplyAgreements shall include reasonable and customary provisions

 

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with respect to forecasting and ordering and purchasing quantities ofReb C on an ongoing basis based on actual demand for Products.  IFF shall promptly provide Redpoint withcopies of such Supply Agreements and any amendments or supplements thereto uponexecution of such agreements, amendments or supplements.

 

**ARTICLE 9OWNERSHIP OF INTELLECTUAL PROPERTY AND PATENT RIGHTS**

 

9.1           **Inventorship; Ownership of Inventions**.

 

9.1.1        **Inventorship**. Inventorship for patentable Inventions conceived or reduced to practiceduring the course of the performance of activities pursuant to this Agreementshall be determined in accordance with United States patent laws.

 

9.1.2        **Ownership**.  All right,title and interest in all Redpoint Inventions shall vest in Redpoint.  All right, title and interest in all IFFInventions shall vest in IFF.

 

9.2           **Assignment by Employees**. Each Party represents and agrees that its and its Affiliates’ employeesand consultants, shall be obligated under a binding written agreement to assignto such Party, or as such Party shall direct, all Inventions made or conceivedduring and as a result of the research or the development by such employee orconsultant; provided, that to the extent such Invention relates to theManufacture of Reb C, such Invention shall be assigned to Redpoint, and, to theextent such Invention relates to flavor or flavor formulations or the use ofReb C in flavor formulations, such Invention shall be assigned to IFF.  In the case of non-employees working forother companies or institutions on behalf of Redpoint or IFF, Redpoint or IFF,as applicable, shall use commercially reasonable efforts to obtain the right tolicense all Inventions made by such non-employees on behalf of Redpoint or IFF,as applicable, in accordance with the policies of the company or institutionemploying such non-employee.  Redpointand IFF agree to undertake to enforce such agreements with employees or othersor such rights pertaining to non-employees (including, where appropriate, bylegal action) considering, among other things, the commercial value of suchInventions.

 

9.3           **Filing**, **Prosecution****and****Maintenance****of****Patents**.

 

9.3.1        IFFshall use commercially reasonable efforts to prosecute and maintain theRedpoint Patents in Redpoint’s name at IFF’s sole cost and expense in theUnited States and in such other jurisdictions as IFF may elect in itscommercially reasonable discretion.  Assoon as practicable after the Effective Date, Redpoint shall provide IFF withcopies of any patent applications included within the Redpoint Patents whichare not publicly available.  IFF shall beresponsible for filing, prosecuting and maintaining the Redpoint Patents,including converting the provisional Patent applications into non-provisionalPatent applications and prosecuting and maintaining any foreign prosecution ofthe Patent applications.  In addition, IFFmay combine one or more provisional applications into a single application ifIFF determines, in its reasonable discretion, that such action will not delayissuance of a pending Redpoint Patent or decrease the likelihood of issuance ofa pending Redpoint Patent in a timely manner; provided that such action doesnot adversely affect or reduce the scope of such pending Redpoint Patent.

 

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9.3.2        IFFshall provide Redpoint with advance copies (which may be in draft form) of allmaterial documents and filings as well as material correspondence from therelevant patent offices, in each case relating to such Redpoint Patents,including the Patent applications, and shall consider in good faith allcomments from Redpoint relating to such filings and correspondence.

 

9.3.3        IfIFF elects not to undertake (or after commencement of such filing, prosecutionand/or maintenance, desires to cease) the prosecution or the maintenance of anyRedpoint Patents consistent with its obligations set forth herein, then IFFshall notify Redpoint of such election and Redpoint shall have the right, inits sole discretion, to file, prosecute and/or maintain such Redpoint Patentsat its sole cost and expense.

 

9.4           **Cooperation**.  Redpointshall make available to IFF (or to IFF’s authorized attorneys, agents orrepresentatives), its employees, agents, subcontractors or consultants to theextent reasonably necessary or appropriate to enable IFF to file, prosecute andmaintain Patents as set forth in Section 9.3 and for periods of timereasonably sufficient for IFF to obtain the assistance it needs from suchpersonnel.  Where appropriate, Redpointshall sign or cause to have signed all documents relating to said Patents at nocharge to IFF.

 

9.5           **Infringement****by****Third****Parties**.

 

9.5.1        **Notice**. Each Party shall promptly give the other writtennotice if it reasonably believes that any Licensed Technology, RedpointInvention or IFF Invention is being infringed or misappropriated by a ThirdParty, and shall provide the other Party with all available evidence supportingsuch belief.

 

9.5.2        **Initial Obligation to Enforce**.  For so long as IFF has an exclusive licenseunder Section 2.1.1, IFF shall use commercially reasonable effortsand shall have the obligation to initiate a suit or take other appropriateaction that it believes is reasonably required to protect (i.e., prevent orabate actual or threatened infringement or misappropriation of) or otherwiseenforce the Licensed Technology, Redpoint Inventions or IFF Inventions in theTerritory.   IFF agrees to notify Redpointof its intention to bring an action or proceeding and to keep Redpoint informedof material developments in the prosecution or settlement of such action orproceeding.  IFF shall be responsible forall costs and expenses of any action or proceeding that IFF initiates andmaintains.  Redpoint shall cooperatefully at its expense by joining as a party plaintiff if required to do so bylaw to maintain such action or proceeding and by executing and making availablesuch documents as IFF may reasonably request. Redpoint may be represented by counsel of its choice in any such actionor proceeding, at Redpoint’s expense, acting in an advisory but not controllingcapacity.  The prosecution, settlement,or abandonment of any infringement action or proceeding brought by IFF shall beat IFF’s sole discretion; provided, that IFF may not enter into any settlementthat adversely affects Redpoint’s rights or interests hereunder in the LicensedTechnology.

 

9.5.3        **Step-In Right**.  If IFFfails to elect or elects not to exercise such first right pursuant to Section 9.5.3within ninety (90) days of evidence of an actual infringement, Redpoint shallhave the right, at its discretion, to institute and prosecute an action orproceeding to abate such infringement and to resolve such matter by settlementor otherwise.  Redpoint shall keep

 

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IFF informed of material developments in the prosecution or settlementof such action or proceeding.  Redpointshall be responsible for all costs and expenses of any action or proceedingthat Redpoint initiates.  IFF shallcooperate fully by joining as a party plaintiff if required to do so by law tomaintain such action and by executing and making available such documents asRedpoint may reasonably request.  IFF maybe represented by counsel in any such action or proceeding at its ownexpense.  The prosecution, settlement, orabandonment of any infringement action or proceeding brought by Redpoint shallbe at Redpoint’s sole discretion.

 

9.5.4        **Recoveries**.  If theParties obtain any damages, license fees, royalties or other compensation(including any amount received in settlement of such litigation) from a ThirdParty in connection with a suit brought by a Party pursuant to this Section 9.5,such amounts shall be allocated as follows:

 

(i)            inall cases to reimburse each Party for all expenses of such litigation,including reasonable attorneys’ fees and disbursements, court costs and otherlitigation expenses; and

 

(ii)           anyof the remaining amount that relates to the Products shall be split fifty-fiftyby the Parties.

 

9.5.5        **Infringement Claims**. If a Third Party at any time asserts a claim that the LicensedTechnology is invalid or unenforceable, or if any Third Party at any timeprovides written notice of a claim to, or brings an action, suit or proceedingagainst, any Party, or any of their respective Affiliates, claiminginfringement of its patent rights or unauthorized use or misappropriation ofits Know-How, based upon an assertion or claim arising out of the Development,Manufacture or Commercialization of Reb C or a Product in the Territory (an “**Infringement Claim**”), control of the response to such claimin the Territory shall, as between the Parties, be determined in the samemanner as enforcement rights are determined pursuant to Sections 9.5.2 and9.5.3, with the time periods set forth in 9.5.3 shortened where necessary toprovide Redpoint sufficient time to respond without a loss of rights, and IFFshall cooperate with Redpoint in the preparation and formulation of suchresponse, and in taking other steps reasonably necessary to respond, to suchInfringement Claim.  Neither Party shallsettle or compromise any Infringement Claim without the consent of the otherParty, which consent shall not be unreasonably withheld.

 

9.6           **Trademarks**.  IFF shallselect, register and own the trademarks, trade dress, logos, slogans andinternet domain names including any of the foregoing for the Products for usein the Territory (the “**IFF Marks**”).For purposes of clarity, the term IFF Marks shall not include the corporatenames and logos of Redpoint or its Affiliates.

 

**ARTICLE 10REPRESENTATIONS AND WARRANTIES**

 

10.1         Representationsand Warranties.

 

10.1.1      **Mutual Representations**. Each of the Parties hereby represents and warrants to the other Partythat, as of the Effective Date:

 

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(a)           SuchParty has full corporate right, power and authority to enter into thisAgreement and to perform its respective obligations under this Agreement;

 

(b)           ThisAgreement is a legal and valid obligation binding upon such Party andenforceable in accordance with its terms. The execution, delivery and performance of the Agreement by such Partydoes not conflict with any agreement, instrument or understanding, oral orwritten, to which it is a Party or by which it is bound, nor, to its knowledge,violate any Law of any Governmental Authority having jurisdiction over it;

 

(c)           SuchParty has not granted any right to any Third Party that would conflict with therights granted to the other Party hereunder;

 

(d)           Exceptfor Regulatory Notifications, pricing and/or reimbursement approvals,manufacturing approvals and/or similar approvals necessary for the Development,Manufacture or Commercialization of Reb C and the Products, such Party hasobtained all necessary consents, approvals and authorizations of all GovernmentAuthorities and other Persons required to be obtained by it as of the EffectiveDate in connection with the execution, delivery and performance of thisAgreement; and

 

(e)           Thereis no action or proceeding pending or, to such Party’s knowledge, threatened,that questions the validity of this Agreement or any action taken by such Partyin connection with the execution of this Agreement.

 

10.1.2      **Additional Representations of Redpoint**.  Redpoint hereby represents and warrants toIFF that, as of the Effective Date:

 

(a)           Redpointowns all right, title and interest in and to, or has a license, sublicense orother permission to use and license in the Territory the Licensed Technology;

 

(b)           ToRedpoint’s knowledge, all patent applications within the Redpoint Patents arestill pending;

 

(c)           Redpointis not aware of any claim made against it asserting the invalidity ornon-infringement of any of the Redpoint Patents;

 

(d)           Redpointdoes not currently have an agreement with any Third Party granting a licenseunder or to any of the Licensed Technology to Develop, Manufacture orCommercialize Reb C in the Territory; and

 

10.2         **Limitation on Representations or Warranties**.  Notwithstanding anything to the contraryherein, neither Party will be in breach of any representation or warranty madepursuant to this Article 10 to the extent that the Party alleged to have sobreached can demonstrate that the Party alleging such breach had, on or priorto the Effective Date, actual knowledge of such breach of such representation orwarranty.

 

10.3         **Disclaimer of Warranty**. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 10.1, NEITHERPARTY MAKES ANY REPRESENTATIONS NOR GRANTS ANY WARRANTIES, EXPRESS OR IMPLIED,EITHER IN FACT OR BY

 

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OPERATION OF LAW, BY STATUTE OR OTHERWISE, AND REDPOINT AND IFF EACHSPECIFICALLY DISCLAIMS ANY OTHER REPRESENTATIONS AND WARRANTIES, WHETHERWRITTEN OR ORAL, EXPRESS, STATUTORY OR IMPLIED, INCLUDING ANY WARRANTY OFQUALITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE OR ANYWARRANTY AS TO THE VALIDITY OF ANY PATENTS OR THE NON-INFRINGEMENT OF ANYINTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES. EACH PARTY HEREBY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT THEDEVELOPMENT, MANUFACTURE AND COMMERCIALIZATION OF REB C OR PRODUCTS PURSUANT TOTHIS AGREEMENT WILL BE SUCCESSFUL.

 

10.4         **Limitation of Liability**. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR LOST PROFITS OR FOR ANYSPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, HOWEVERCAUSED, ON ANY THEORY OF LIABILITY AND WHETHER OR NOT SUCH PARTY HAS BEENADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING UNDER ANY CAUSE OF ACTIONAND ARISING IN ANY WAY OUT OF THIS AGREEMENT, EXCEPT AS A RESULT OF A PARTY’SWILLFUL MISCONDUCT, GROSS NEGLIGENCE, RECKLESS CONDUCT OR A BREACH OF THECONFIDENTIALITY AND NON-USE OBLIGATIONS IN ARTICLE 7.  MOREOVER, THE FOREGOING LIMITATIONS WILL NOTLIMIT EITHER PARTY’S OBLIGATIONS TO THE OTHER PARTY UNDER ARTICLE 12.

 

10.5         **Essential Basis**.  TheParties acknowledge and agree that the disclaimers, exclusions and limitationsof liability set forth in this Article 10 form an essential basis of thisAgreement, and that, absent any of such disclaimers, exclusions or limitationsof liability, the terms of this Agreement, including the economic terms, wouldbe substantially different.

 

**ARTICLE 11TERM AND TERMINATION**

 

11.1         **Term**.  This Agreementshall commence as of the Effective Date and shall continue in effect until theearlier of (a) the end of the Royalty Term or (b) the effective date of anytermination of this Agreement pursuant to Section 11.2 below (the “**Term**”).

 

11.2         **Termination**.

 

11.2.1      **Breach**.  Either Partymay, without prejudice to any other remedies available to it at Law or inequity, terminate this Agreement in the event that the other Party shall havematerially breached or defaulted in the performance of any of its obligationshereunder, including, in the case of IFF, IFF’s failure to use commerciallyreasonable efforts to Commercialize Reb C and the Products.  The defaulting Party shall have thirty (30)days (five (5) days in the event of non-payment) after receiving written noticethereof to remedy such default.  Any suchtermination shall become effective at the end of such thirty (30)-day period(five (5)-day period for non-payment) unless the defaulting Party has cured anysuch breach or default prior to the expiration of such thirty (30)-day period(five (5)-day period for non-payment).

 

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11.2.2      **Bankruptcy**.  Redpointmay terminate this Agreement upon written notice to IFF at any time, to theextent permitted by Law, if IFF shall make or seek to make or arrange anassignment for the benefit of creditors, or if proceedings in voluntary orinvoluntary bankruptcy shall be initiated by, on behalf of or against IFF (and,in the case of any such involuntary proceeding, not dismissed within ninety(90) days), or if a receiver or trustee of IFF’s property shall be appointedand not discharged within ninety (90) days.

 

11.2.3      **IFF Termination Right**. After the *** anniversary of the Effective Date, IFF may terminate thisAgreement at any time upon ninety (90) days prior written notice to Redpoint.

 

11.3         **Effects of Termination**.

 

11.3.1      Withoutlimiting any other legal or equitable remedies that Redpoint may have, if thisAgreement is terminated pursuant to Sections 11.2.1 or 11.2.2 at any time orpursuant to Section 11.2.3 prior to the expiration of the Royalty Term, alllicenses granted by Redpoint to IFF under this Agreement shall terminate intheir entirety on the effective date of the termination of this Agreement andIFF shall as promptly as commercially practicable (a) transfer to Redpoint orRedpoint’s designee (i) possession and ownership of all governmental orregulatory correspondence, filings and approvals (including all RegulatorySubmissions) relating to the Licensed Technology, (ii) copies of all data,reports, records and materials in IFF’s possession or control relating to theLicensed Technology to the extent not publicly available, and (iii) all recordsand materials in IFF’s possession or control containing ConfidentialInformation of Redpoint, and (b) if Redpoint so requests, transfer any ThirdParty agreements, including the Supply Agreements relating to Reb C.  IFF shall execute all documents and take allsuch further actions as may be reasonably requested by IFF in order to giveeffect to the foregoing clauses (a) and (b).

 

11.3.2      Uponthe expiration of the Royalty Term, solely to the extent not earlier terminatedpursuant to Section 11.3.1, IFF shall have a fully paid, royalty-free,irrevocable, non-exclusive license in the Licensed Technology to Develop,Manufacture, use and Commercialize Reb C and Products in the Territory.

 

11.4         **Accrued Rights**. Termination of this Agreement for any reason will be without prejudiceto any rights that will have accrued to the benefit of a Party prior to theeffective date of such termination.  Suchtermination will not relieve a Party from obligations that are expresslyindicated to survive the termination of this Agreement.

 

11.5         **Survival**.  Thefollowing Articles and Sections, together with any definitions used or exhibitsreferenced therein, will survive any termination or expiration of this Agreement:  Sections 6.3, 6.4.1, 6.4.4, 10.2, 10.3, 10.4,11.3, 11.4, 11.5, 14.1, 14.3 and Articles 12 and 13.  Furthermore, Article 7 shall survive anytermination or expiration of this Agreement for a period of ten (10) years.

 

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**ARTICLE 12INDEMNIFICATION; INSURANCE**

 

12.1         **Indemnification**.

 

12.1.1      **Indemnification by IFF**. Except as it relates to claims brought under Article 9, IFF herebyagrees to save, defend and hold Redpoint, its Affiliates, and their respectivedirectors, officers, agents, consultants and employees (collectively, “**Redpoint Indemnitees**”) harmless from and against any and allLosses arising in connection with any and all charges, complaints, actions,suits, proceedings, hearings, investigations, claims, demands, judgments,orders, decrees, stipulations or injunctions by a Third Party (each a “**Third Party Claim**”) resulting from (a) any breach by IFF ofany of its representations, warranties, covenants or obligations pursuant tothis Agreement, (b) any alleged violation of any Laws by an IFF Indemniteerelating to the Development, Manufacture, use or Commercialization of Reb C orthe Products, (c) the death of or any injury to any person or any damage to orloss of property as a result of Products Developed, Manufactured, used,Commercialized or otherwise distributed by IFF or its Affiliates orsublicensees, (d) any negligent act, omission or misconduct of IFF, or itsAffiliates, sublicensees, distributors, wholesalers or agents in the Development,Manufacture, use or Commercialization of the Products, or any other improperactivity conducted by IFF, or its Affiliates, sublicensees, distributors,wholesalers or agents under this Agreement which is the proximate cause ofinjury, death or property damage to a Third Party, or (e) any negligent act oromission of IFF or its Affiliates or sublicensees in connection withinteractions and communications with Governmental Authorities, FEMA or othersimilar organizations; in each case except to the extent that such Losses aresubject to indemnification by Redpoint pursuant to Section 12.1.2.

 

12.1.2      **Indemnification by Redpoint**. Redpoint hereby agrees to save, defend and hold IFF, its Affiliates, andtheir respective directors, officers, agents, consultants and employees(collectively, “**IFF Indemnitees**”) harmless fromand against any and all Losses arising in connection with any and all ThirdParty Claims resulting from (a) any breach by Redpoint of any of itsrepresentations, warranties, covenants or obligations pursuant to thisAgreement or (b) any negligent act, omission or willful misconduct by Redpointor its Affiliates or their respective officers, directors, employees, agents orconsultants in performing any obligations under this Agreement; in each caseexcept to the extent that such Losses are subject to indemnification by IFFpursuant to Section 12.1.1.

 

12.2         **Notice of Claim**.  Allindemnification claims in respect of any indemnitee seeking indemnity underSection 12.1 (collectively, the “**Indemnitees**”and each an “**Indemnitee**”) will be made solelyby the corresponding Party (the “**Indemnified Party**”).  The Indemnified Party will give theindemnifying Party (the “**Indemnifying Party**”)prompt written notice (an “**Indemnification ClaimNotice**”) of any Losses or the discovery of any fact upon which suchIndemnified Party intends to base a request for indemnification under Section12.1, but in no event will the Indemnifying Party be liable for any Losses thatresult from any delay in providing such notice which materially prejudices thedefense of such Third Party Claim.  EachIndemnification Claim Notice must contain a description of the claim and thenature and amount of such Loss (to the extent that the nature and amount ofsuch Loss are known at such time).  Togetherwith the Indemnification Claim Notice, the Indemnified Party will furnishpromptly to the Indemnifying Party copies of all notices and documents(including court papers) received by any Indemnitee in connection with theThird Party Claim.  The IndemnifyingParty shall not be obligated to indemnify the Indemnified Party to the extentany admission or statement made by the Indemnified Party materially prejudicesthe defense of such Third Party Claim.

 

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12.3         **Control of Defense**. At its option (and except for any claims, proceedings, or other actionsunder Article 9), the Indemnifying Party may assume the defense of any ThirdParty Claim subject to indemnification as provided for in Sections 12.1.1 and 12.1.2by giving written notice to the Indemnified Party within thirty (30) days afterthe Indemnifying Party’s receipt of an Indemnification Claim Notice.  Upon assuming the defense of a Third PartyClaim, the Indemnifying Party may appoint as lead counsel in the defense of theThird Party Claim any legal counsel it selects. Should the Indemnifying Party assume the defense of a Third Party Claim,the Indemnifying Party will not be liable to the Indemnified Party or any otherIndemnitee for any legal expenses subsequently incurred by such IndemnifiedParty or other Indemnitee in connection with the analysis, defense orsettlement of the Third Party Claim.

 

12.4         **Right to Participate in Defense**.  Without limiting Section 12.3, any Indemniteewill be entitled to participate in, but not control, the defense of a ThirdParty Claim for which it has sought indemnification hereunder and to employcounsel of its choice for such purpose; *provided*, *however*, that such employment will be at the Indemnitee’sown expense unless (a) the employment thereof has been specifically authorizedby the Indemnifying Party in writing, or (b) the Indemnifying Party has failedto assume the defense and employ counsel in accordance with Section 12.3 (inwhich case the Indemnified Party will control the defense).

 

12.5         **Settlement**.  Except asit relates to claims brought under Article 9 hereof, with respect to any Lossesrelating solely to the payment of money damages in connection with a ThirdParty Claim and that will not result in the Indemnitee becoming subject toinjunctive or other relief or otherwise adversely affect the business of theIndemnitee in any manner, and as to which the Indemnifying Party will haveacknowledged in writing the obligation to indemnify the Indemnitee hereunder,the Indemnifying Party will have the sole right to consent to the entry of anyjudgment, enter into any settlement or otherwise dispose of such Loss, on suchterms as the Indemnifying Party, in its reasonable discretion, will deemappropriate (*provided*, *however*that such terms shall include a complete and unconditional release of theIndemnified Party from all liability with respect thereto), and will transferto the Indemnified Party all amounts which said Indemnified Party will beliable to pay prior to the time of the entry of judgment.  With respect to all other Losses inconnection with Third Party Claims, where the Indemnifying Party has assumedthe defense of the Third Party Claim in accordance with Section 12.3, theIndemnifying Party will have authority to consent to the entry of any judgment,enter into any settlement or otherwise dispose of such Loss provided it obtainsthe prior written consent of the Indemnified Party (which consent will be atthe Indemnified Party’s reasonable discretion). The Indemnifying Party that has assumed the defense of the Third PartyClaim in accordance with Section 12.3 will not be liable for any settlement orother disposition of a Loss by an Indemnitee that is reached without thewritten consent of such Indemnifying Party. Regardless of whether the Indemnifying Party chooses to defend orprosecute any Third Party Claim, no Indemnitee will admit any liability withrespect to, or settle, compromise or discharge, any Third Party Claim withoutfirst offering to the Indemnifying Party the opportunity to assume the defenseof the Third Party Claim in accordance with Section 12.3.

 

12.6         **Cooperation**.  Exceptas it relates to claims brought under Article 9 hereof, if the IndemnifyingParty chooses to defend or prosecute any Third Party Claim, the IndemnifiedParty will, and will cause each other Indemnitee to, cooperate in the defenseor prosecution thereof and will furnish such records, information andtestimony, provide such witnesses and attend such

 

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conferences, discovery proceedings, hearings, trials and appeals as maybe reasonably requested in connection with such Third Party Claim.  Such cooperation will include access duringnormal business hours afforded to the Indemnifying Party to, and reasonableretention by the Indemnified Party of, records and information that arereasonably relevant to such Third Party Claim, and making Indemnitees and otheremployees and agents available on a mutually convenient basis to provideadditional information and explanation of any material provided hereunder, andthe Indemnifying Party will reimburse the Indemnified Party for all itsreasonable out-of-pocket expenses incurred in connection with such cooperation.

 

12.7         **Insurance**.  IFF shallobtain and maintain in force General Liability and Products Liability withlimits at a minimum of $***.  Suchinsurance shall name Redpoint as an additional insured.  It is understood that such insurance will notbe construed to limit IFF’s liability with respect to its indemnificationobligations under this Article 12.  IFFwill provide to Redpoint upon request a certificate evidencing the insuranceIFF is required to obtain and keep in force under this Article 12.  Such certificate will provide that suchinsurance will not expire or be cancelled or modified without at least thirty(30) days’ prior notice to Redpoint.

 

**ARTICLE 13DISPUTE RESOLUTION**

 

13.1         **Disputes**.  For allmatters under this Agreement, the Parties hereby agree that disputes shall be referredto the designated senior executives of Redpoint and IFF (the “**Representatives**”).  Ifany such matter has not been resolved within fifteen (15) Business Days of suchreferral to the Representatives, then the Parties may mutually agree whethersuch dispute should be determined through binding arbitration pursuant to theprovisions of Section 13.2 or through litigation pursuant to the provisions ofSection 13.3 and, if the Parties cannot so agree, then such dispute shall befinally determined according to the provisions of Section 13.3.  In the event of any dispute between theParties arising in connection with Article 9 of this Agreement, the Partiesagree that the dispute resolution described under this Article 13 will beconducted with sufficient dispatch to prevent loss of patent rights in thedisputed subject matter.

 

13.2         **Arbitration**.  In theevent that any dispute is referred to arbitration pursuant to Section 13.1,then such arbitration shall be conducted in accordance with the commercialrules of the American Arbitration Association in force on the date ofcommencement of the arbitration.  Thearbitration will be final and binding, and judgment upon the award rendered bythe arbitrators may be entered in any court having jurisdiction thereof.  There will be three (3) arbitrators, with onearbitrator selected by Redpoint and one arbitrator selected by IFF, whicharbitrators shall jointly select the third arbitrator.  The place of arbitration shall be New York,New York or such other location mutually acceptable to the Parties and the lawsof the State of New Jersey shall apply to any such arbitration.  Each of the arbitrators must have at leastten (10) years experience in commercial transactions.  The arbitration will commence within thirty(30) days after appointment of the arbitrators and will continue uninterrupted,unless otherwise suspended by the arbitrators for good cause, for not longerthan one hundred (120) days (including any discovery permitted by thearbitrators).  The arbitrators will,within such one hundred and twenty (120) day period, render a written decisionwith findings of fact and conclusions of law and deliver such decision to theParties.  No arbitrator (nor the panel ofarbitrators) shall have the power to award punitive damages under thisAgreement and such

 

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award is expressly prohibited. The decision of the arbitrators will be final and non-appealable andbinding upon the Parties, and may be entered and enforced in any court havingjurisdiction.  The Parties shall sharethe costs of the arbitration equally.

 

13.3         **Jurisdiction**.  In theevent that any dispute is not referred to binding arbitration pursuant toSection 13.1, then the Parties unconditionally and irrevocably agree andconsent to the exclusive jurisdiction of, and service of process and venue in,the state and federal courts of New Jersey and waive any objection with respectthereto, for the purpose of any action, suit or proceeding arising out of orrelating to this Agreement or the transactions contemplated hereby and furtheragree not to commence any such action, suit or proceeding except in any suchcourts.

 

13.4         **Injunctive Relief**. Notwithstanding anything to the contrary in this Agreement, either Partywill have the right to seek temporary injunctive relief in any court ofcompetent jurisdiction as may be available to such Party under the laws andrules applicable in such jurisdiction with respect to any matters arising outof the other Party’s performance of its obligations under this Agreement.

 

13.5         **Governing Law**.  ThisAgreement shall be governed by and construed under the substantive laws of theState of New Jersey, without regard to conflicts of law rules that wouldprovide for application of the law of a jurisdiction outside the State of NewJersey.

 

**ARTICLE 14MISCELLANEOUS**

 

14.1         **Entire Agreement; Amendment**. This Agreement, including the Schedules attached hereto (each of whichis hereby incorporated herein by reference), sets forth the complete, final andexclusive agreement and all the covenants, promises, agreements, warranties,representations, conditions and understandings between the Parties hereto andsupersedes and terminates all prior agreements and understandings between theParties which will continue to govern the obligations of the Parties withrespect to information disclosed thereunder with respect to periods prior tothe Effective Date.  There are nocovenants, promises, agreements, warranties, representations, conditions orunderstandings, either oral or written, between the Parties other than as areset forth herein.  No subsequentalteration, amendment, change or addition to this Agreement shall be bindingupon the Parties unless reduced to writing and signed by an authorized officerof each Party.

 

14.2         **Force Majeure**. Neither Party shall be liable to the other for any failure or delay inthe fulfillment of its obligations under this Agreement (other than the paymentof monies due and owing to a Party under this Agreement), when any such failureor delay is caused by fire, flood, earthquakes, explosions, sabotage, strikes,lockouts, insurrections, civil commotions, riots, invasions, wars, acts of war(whether war be declared or not), peril of the sea, acts, restraints,requisitions, regulations or directions of, or omissions or delays in actingby, Governmental Authorities, acts of God, or any similar cause beyond thereasonable control of the performing Party (each, a “**ForceMajeure Event**”).  In the eventthat either Party is prevented from discharging its obligations under thisAgreement on account of a Force Majeure Event, the performing Party will notifythe other Party forthwith, and will nevertheless make every

 

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endeavor, in the utmost good faith, to discharge its obligations, evenif in a partial or compromised manner.

 

14.3         **Notices**.  All noticesor other communications that are required or permitted under this Agreementwill be in writing and delivered personally, sent by facsimile (and promptlyconfirmed by personal delivery or overnight courier as provided in thisAgreement), or sent by internationally-recognized overnight courier to theaddresses below.  Any such communicationwill be deemed to have been given (a) when delivered, if personally deliveredor sent by facsimile on a Business Day (so long as promptly confirmed bypersonal delivery or overnight courier as provided in this Agreement), and (b)on the second Business Day after dispatch, if sent by internationally-recognizedovernight courier.  Unless otherwisespecified in writing, the mailing addresses of the Parties shall be asdescribed below.

 

For IFF:                                                     InternationalFlavors & Fragrances Inc.

521 West 57th Street

New York, New York 10019

Phone: (212) 765-5500

Fax: (212) 708-7132

Attention: General Counsel

 

with a copy to:

 

For Redpoint:                      Redpoint BioCorporation

7 Graphics Drive

Ewing, New Jersey 08628

Phone: (609) 637-9700

Fax: 609.637.0126

Attention: Scott Horvitz, CFO

 

with a copy to:                Morgan, Lewis& Bockius LLP

502 Carnegie Center

Princeton, New Jersey 08540

Fax: 609.919.6701

Attention:  Andrew P. Gilbert, Esq.

 

14.4         **Independent Contractors**. In making and performing this Agreement, IFF and Redpoint shall act atall times as independent contractors and nothing contained in this Agreementshall be construed or implied for any purpose to create an agency, partnership,limited partnership, joint venture or employer and employee relationshipbetween IFF and Redpoint and this Agreement shall not be construed to suggestotherwise.  At no time shall one Partymake commitments or incur any charges or expenses for or in the name of theother Party.  Except as otherwiseprovided in this Agreement, each Party shall be solely responsible for its owncosts and expenses associated with this Agreement.

 

14.5         **Maintenance of Records**. Each Party shall keep and maintain all records required by Law withrespect to Reb C and the Products and shall make copies of such recordsavailable to the other Party during normal business hours, upon reasonableprior written notice

 

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and solely to the extent access to such records is necessary for aParty to exercise its rights under this Agreement.

 

14.6         **No Strict Construction**. This Agreement has been prepared jointly and shall not be strictlyconstrued against either Party. Ambiguities, if any, in this Agreement shall not be construed againstany Party, irrespective of which Party may be deemed to have authored theambiguous provision.

 

14.7         **Assignment**.  NeitherParty will sell, transfer, assign, delegate, pledge or otherwise dispose of,whether voluntarily, involuntarily, by operation of Law or otherwise, thisAgreement or any of its rights or obligations under this Agreement without theprior written consent of the other Party (which consent may be granted,withheld or conditioned at such other Party’s sole and absolute discretion); *provided*, *however*, thateither Party may assign or transfer this Agreement or any of its rights orobligations under this Agreement without the consent of the other Party (a) toany Affiliate of such Party, or (b) to any Third Party with which it merges orconsolidates, or to which it transfers all or substantially all of its assetsrelated to this Agreement.  The assigningParty (unless it is not the surviving entity) will remain jointly and severallyliable with, and will guarantee the performance of, the relevant Affiliate orThird Party assignee under this Agreement, and the relevant Affiliate assignee,Third Party assignee or surviving entity will assume in writing all of theassigning Party’s obligations under this Agreement.  Any purported assignment or transfer inviolation of this Section 14.7 will be void *ab initio* andof no force or effect.

 

14.8         **Counterparts**.  This Agreementmay be executed in two or more counterparts, each of which shall be deemed anoriginal, but all of which together shall constitute one and the sameinstrument.  Signatures provided byfacsimile transmission shall be deemed to be original signatures.

 

14.9         **Further Actions**.  EachParty agrees to execute, acknowledge and deliver such further instruments, andto do all such other acts, as may be necessary or appropriate in order to carryout the purposes and intent of this Agreement.

 

14.10       **Severability**.  If anyone or more of the provisions of this Agreement is held to be invalid orunenforceable by any court of competent jurisdiction from which no appeal canbe or is taken, the provision shall be considered severed from this Agreementand shall not serve to invalidate any remaining provisions hereof.  The Parties shall make a good faith effort toreplace any invalid or unenforceable provision with a valid and enforceable onesuch that the objectives contemplated by the Parties when entering this Agreementmay be realized.

 

14.11       **Headings**.  Theheadings for each article and section in this Agreement have been inserted forconvenience of reference only and are not intended to limit or expand on themeaning of the language contained in the particular article or section.

 

14.12       **No Waiver**.  Any delayin enforcing a Party’s rights under this Agreement or any waiver as to aparticular default or other matter shall not constitute a waiver of such Party’srights to the future enforcement of its rights under this Agreement, exceptingonly as to an express written and signed waiver as to a particular matter for aparticular period of time.

 

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**[Signature Page Follows]**

 

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INWITNESS WHEREOF, the Parties have executed this License and CommercializationAgreement in duplicate originals by their proper officers as of the EffectiveDate.

 

 
| INTERNATIONAL  FLAVORS & FRAGRANCES INC. |                | REDPOINT  BIO CORPORATION             |
|----------------------------------------------|---------------------|---------------------------------------|
|                                         |                |                                  |
|                                         |                |                                  |
| By:                                          | /s/  Hernan Vaisman |                                  | By: | /s/  R. Raymond Salemme |
|                                         |                |                                  |
| Name:  Hernan  Vaisman                  |                | Name:   F. Raymond Salemme       |
|                                         |                |                                  |
| Title:  Flavors  President              |                | Title:   Chief Executive Officer |
|                                              |                     |                                       |  |  |

 

**Signature Page to License and Commercialization Agreement**

 

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**SCHEDULE 1.1.30**

 

**Redpoint****Patents**

 
| ******* | ** ** | ******* | ** ** | ******* | ** ** | ******* | ** ** | ******* |
|---------|------------|---------|------------|---------|------------|---------|------------|---------|
| ***     |       | ***     |       | ***     |       | ***     |       | ***     |
| ***     |       | ***     |       | ***     |       | ***     |       | ***     |
| ***     |       | ***     |       | ***     |       | ***     |       | ***     |
| ***     |       | ***     |       | ***     |       | ***     |       | ***     |
| ***     |       | ***     |       | ***     |       | ***     |       | ***     |
| ***     |       | ***     |       | ***     |       | ***     |       | ***     |
| ***     |       | ***     |       | ***     |       | ***     |       | ***     |
| ***     |       | ***     |       | ***     |       | ***     |       | ***     |
| ***     |       | ***     |       | ***     |       | ***     |       | ***     |

 

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