Exhibit 10.1


 


CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.  ASTERISKS DENOTE OMISSIONS.


 


RESEARCH AGREEMENT


 


This RESEARCH AGREEMENT (this “Agreement”) is entered into as of
June 17, 2004 (the “Effective Date”) by and between Interleukin Genetics,
Inc., a Delaware corporation having its principal office at 135 Beaver Street,
Waltham, MA  02452 (“IG”) and Access
Business Group LLC, having its principal office at 7575 Fulton Street, East,
Ada, Michigan 49355-0001 (“Access”). 
Each of IG and Access is sometimes referred to individually herein as a
“Party” and collectively as the “Parties.”


 


WHEREAS, Access, together with its Affiliates, has expertise and
experience in the development, commercialization and marketing of nutritional
supplements and skin care products and IG has expertise and experience in
analyzing the effect of gene variations on weight management conditions, and
determining, through genetic profiling, individuals who may benefit from
specific interventions to promote health;


 


WHEREAS, Access desires that IG perform the Research Program on the
terms and subject to the conditions set forth in this Agreement and in
accordance with the Protocol and the Parties desire to obtain certain rights to
inventions arising out of the Research Program; and


 


WHEREAS, IG is willing to perform the Research Program and the Parties
are willing to grant each other such rights as described herein.


 


NOW, THEREFORE, in consideration of the mutual covenants contained herein,
and for other good and valuable consideration, the Parties hereby agree as
follows:


 


1.                                      DEFINITIONS


 


Whenever used in this Agreement with an initial capital letter, the
terms defined in this Section 1 shall have the meanings specified.


 


1.1                                                 “Affiliate” means any corporation, firm,
partnership or other entity that directly or indirectly controls or is
controlled by or is under common control with a Party to this Agreement.  For purposes of this definition, “control”
means ownership, directly or through one or more Affiliates, of fifty percent
(50%)  or more of the shares of
stock entitled to vote for the election of directors, in the case of a
corporation, fifty percent (50%) or more of the equity interests in the case of
any other type of legal entity, status as a general partner in any partnership,
or any other arrangement whereby a Party controls or has the right to control
the Board of Directors or equivalent governing body of a corporation or other
entity.  For purposes of this Agreement,
Access, Alticor Inc and subsidiaries of Alticor Inc, on the one hand, and IG,
on the other hand, will not be deemed to be Affiliates of each other.


 


1.2                                                 “Access Patent Rights” means any Patent
Rights with respect to Access Technology.


 


1.3                                                 “Access Proprietary Materials” means any
Proprietary Materials of Access that are used by Access, or provided by Access
for use, in the Research Program.


 



















 


1.4                                                 “Access Technology” means any Technology
Controlled by Access as of the Effective Date and during the Term that is used
by Access, or provided by Access for use, in the Research Program.


 


1.5                                                 “[                                      *                                         ]
Test” means an analytic test performed on a [  *  
*   *   *  ]
to monitor an individual’s response to the use of a Dermagenomics Consumable or
a Nutrigenomics Consumable.


 


1.6                                                 “Confidential Information” means, as
regards a Party (the “Receiving Party”), (i) all information produced or
discovered by either Party under the Research Program (including without
limitation, compilations, data, formulae, models, patent disclosures, procedures,
processes, projections, protocols, results of experimentation and testing,
specifications, strategies and techniques), and all tangible and intangible
embodiments thereof of any kind whatsoever (including, without limitation,
apparatus, biological or chemical materials, animals, cells, compositions,
documents, drawings, machinery, patent applications, records and reports) and
(ii) all other information (including but not limited to information about any
element of Technology or a Party’s business) which is disclosed, whether in
writing and marked as confidential at the time of disclosure to the Receiving
Party or customarily considered to be confidential information or by oral
disclosure reduced to a writing, by the other Party (the “Disclosing Party”) to
the Receiving Party or to any of its employees, consultants, Affiliates,
licensees and sublicensees hereunder except to the extent that the information
described in this subsection (ii) (a) as of the date of disclosure is
demonstrably known to, or in the possession of, the Receiving Party or its
Affiliates, as shown by written documentation, other than by virtue of a prior
confidential disclosure by the Disclosing Party or its Affiliates; (b) as of
the date of disclosure is in, or subsequently enters, the public domain,
through no fault or omission of the Receiving Party or its Affiliates; (c) as
of the date of disclosure or thereafter is obtained by the Receiving Party or
its Affiliates from a Third Party free from any obligation of confidentiality to
the Disclosing Party and rightfully in possession of such information or (d) is
independently developed by or for the Receiving Party or its Affiliates without
reference to or in reliance upon any of the foregoing information as
demonstrated by competent written records.


 


1.7                                                 “Control” or “Controlled” means (a) with respect to Technology
(other than Proprietary Materials) and/or Patent Rights, the possession by a
party of the ability to grant a license or sublicense of such Technology and/or
Patent Rights as provided herein without violating the terms of any agreement
or arrangement between such party and any third party and (b) with respect to
Proprietary Materials, the possession by a party of the ability to supply such
Proprietary Materials to the other party as provided herein without violating
the terms of any agreement or arrangement between such party and any third
party.


 


1.8                                                 “Dermagenomics Consumable” means any
nutritional supplement or skin care product or topical delivery system which
would be [        *        
*         *         *      
*              ] designed to
produce a positive health benefit with respect to weight management (i) the
manufacture, use or sale of which would, absent the license or ownership rights
granted to Access hereunder infringe any claim included in the Program Patent
Rights or the IG Patent Rights, or (ii) which makes a claim or claims of
efficacy or utility based upon the research conducted hereunder or upon the use
or results of a Dermagenomics Test.


 


2



















 


1.9                                                 “Dermagenomics Test” means any genomic
test used to determine appropriate recipients of a Dermagenomics Consumable (i)
the manufacture, use or sale of which would, absent the license or ownership
rights granted to Access hereunder, infringe any claim included in the Program
Patent Rights or the IG Patent Rights, or (ii) which was developed, modified or
improved hereunder.


 


1.10                                           “Dermagenomics Product” means a
Dermagenomics Consumable or a Dermagenomics Test.


 


1.11                                           “IG Patent Rights” means any Patent
Rights with respect to IG Technology.


 


1.12                                           “IG Technology” means any Technology
Controlled by IG as of the Effective Date and during the Term that is used by
IG, or provided by IG, or provided by IG for use, in the Research Program.


 


1.13                                           “Joint Science Committee” or “JSC” shall have the meaning set forth
in Section 5.1 hereof.


 


1.14                                           “Licensed Product” means any
Dermagenomics Product or Nutrigenomics Product.


 


1.15                                           “Nutrigenomics Consumable” means any
nutritional supplement, nutraceutical compound or delivery system for a
nutritional supplement or nutraceutical compound that would be [         *         *         *         *         *         ] designed to produce a positive
health benefit with respect to weight management (i) the manufacture, use or
sale of which would, absent the license or ownership rights granted to Access
hereunder, infringe any claim included in the Program Patent Rights or the IG
Patent Rights, or (ii) which makes a claim or claims of efficacy or utility
based upon the research conducted hereunder or upon the use or results of a
Nutrigenomics Test.


 


1.16                                           “Nutrigenomics Test” means any genomic
test used to determine appropriate recipients of a Nutrigenomics Consumable (i)
the manufacture, use or sale of which would, absent the license or ownership
rights granted to Access hereunder, infringe any claim included in the Program
Patent Rights or the IG Patent Rights, or (ii) which was developed, modified or
improved hereunder.


 


1.17                                           “Nutrigenomics Product” means a
Nutrigenomics Consumable or a Nutrigenomics Test.


 


1.18                                           “Patent Rights” means the rights and
interests in and to issued patents and pending patent applications in any
country, including all substitutions, continuations, continuations-in-part,
divisionals, supplementary protection certificates, renewals, all letters
patents granted thereon, and all reissues, reexaminations, extensions,
confirmations, revalidations, registrations and patents of addition thereof.


 


1.19                                           “Party” or “Parties” has the meaning set forth in
the first paragraph of this Agreement.


 


3



















 


1.20                                           “Program Invention” means any
Technology, whether or not patentable, which is conceived and/or first reduced
to practice by employees of, or consultants to, either Party, or jointly by
both Parties, in the conduct of the Research Program.


 


1.21                                           “Program Patent Rights” means all Patent
Rights claiming any Program Invention.


 


1.22                                           “Proprietary Materials” means any
tangible chemical, biological or physical research materials, including but not
limited to gene sequences, gene fragment sequences, primers, probes, DNA, RNA,
cDNA libraries, plasmids, vectors, expression systems, cells, cell lines,
organisms, antibodies, biological substances (and any constituents, progeny,
mutants, derivatives or replications thereof or therefrom) reagents or chemical
compounds that are furnished by or on behalf of one Party to the other Party,
in connection with this Agreement, that are proprietary to the transferring Party
through patent protection, trade secret, or other method of intellectual
property protection, regardless of whether such materials are specifically
designated as proprietary by the transferring Party.


 


1.23                                           “Protocol” means the written protocol
describing the activities to be carried out under the Research Program pursuant
to this Agreement to be agreed upon by the JSC based on the outline attached
hereto as Appendix A.


 


1.24                                           “Research Program” means the program to
be conducted by the Parties as described in this Agreement and in the Protocol
to develop [       *       *      
*       *       ] which will be Nutrigenomics Products
and Dermagenomics Products.


 


1.25                                           “Technology” means and includes all
inventions, discoveries, know-how, trade-secrets, improvements and Proprietary
Materials, whether or not patentable, including but not limited to, structural
and functional information and other data, formulations and techniques.


 


1.26                                           “Term” has the meaning set forth in
Section 7.1.


 


1.27                                           “Territory” means worldwide.


 


1.28                                           “Third Party” means any entity other
than IG, Access or their respective Affiliates.


 


2.                                      RESEARCH
PROGRAM


 


2.1                                                 Implementation of Research Program.  The Research Program shall be conducted by
the Parties in accordance with the Protocol and in compliance with all
applicable laws and regulations.  IG
shall use commercially reasonable efforts to perform the activities to be
performed by it under the Research Program, as described more fully in the
Protocol and in the proposed timeline (the “Timeline”) which the JSC shall
agree upon in writing, based upon the outline attached hereto as Appendix A, as
promptly as practicable following the execution hereof.  The Protocol and/or the Timeline may be
modified from time to time after the Effective Date by the JSC pursuant to
Section 5.2 hereof.


 


4



















 


2.2                                                 Supply of Proprietary Materials. From
time to time during the Term of this Agreement, one Party may supply the other
Party with its Proprietary Materials for use in the Research Program.  In connection therewith, the recipient Party
hereby agrees that (a) it shall not use Proprietary Materials for any purpose
other than exercising any rights granted to it or reserved by it hereunder; (b)
it shall use the Proprietary Materials only in compliance with all applicable
federal, state, and local laws and regulations; (c) it shall not transfer any
Proprietary Materials to any Third Party without the prior written consent of
the supplying Party, except as expressly permitted hereby; (d) the supplying
Party shall retain full ownership of all such Proprietary Materials; and (e)
upon the expiration or termination of this Agreement, the recipient Party shall
at the instruction of the transferring Party either destroy or return any
unused Proprietary Materials which are not the subject of the grant of a
continuing license hereunder.


 


2.3                                                 Consideration. In consideration of IG
conducting the Research Program described herein, Access shall pay IG the
following amounts:


 


2.3.1. 
Installment Payments Following Effective Date.  $1,080,000 shall be payable in six monthly
installments of $180,000 beginning July 1, 2004 and on the first business
day of each month thereafter through December 2004; and


 


2.3.2   Installment Payments Following
Second Milestone.  Eight Hundred Twenty
Thousand Dollars ($820,000.00) payable in five (5) monthly installments of One
Hundred Thirty Six Thousand, Six Hundred Sixty Seven Dollars ($136,667.00)
beginning January 1, 2005 and on the first business day of each month
thereafter through May 2005, and one (1) payment of One Hundred Thirty Six
Thousand, Six Hundred Sixty Five Dollars ($136,665.00) on June 1, 2005, if
Access determines, in its sole discretion, that it has a reasonable likelihood
of commercializing a weight management Nutrigenomics Consumable and/or a weight
management Dermagenomics Consumable (the “Second Milestone”).


 


3.                                      RESEARCH
LICENSES


 


3.1                                                 License to IG.  Subject to the terms and conditions of this
Agreement, Access hereby grants to IG a non-exclusive, worldwide, royalty-free
license, under the Access Technology, Access Patent Rights, Program Inventions
and Program Patent Rights for the sole purpose of performing its obligations
under the Research Program.


 


3.2                                                 License to Access.  Subject to the terms and conditions of this
Agreement and the License Agreement, IG hereby grants to Access a
non-exclusive, worldwide, royalty-free license, under the IG Technology, IG
Patent Rights, Program Inventions and Program Patent Rights for the sole purpose
of performing its obligations under the Research Program.


 


5



















 


4.                                       TREATMENT OF CONFIDENTIAL
INFORMATION; PUBLICITY


 


4.1                                                 Confidentiality.


 


4.1.1.           Confidentiality
Obligations.  Access and IG each
recognize that the Confidential Information of the other Party constitutes
highly valuable and proprietary confidential information. Access and IG each
agrees that during the Term and for five (5) years thereafter, it will keep
confidential, and will cause its employees, consultants, Affiliates and
sublicensees to keep confidential, all of the Confidential Information of the
other Party.  Neither Access nor IG nor
any of their respective employees, consultants, Affiliates and sublicensees
shall use the Confidential Information of the other Party for any purpose
except as expressly permitted in this Agreement.


 


4.1.2.           Limited
Disclosure of Confidential Information. 
Access and IG each agree that any disclosure of the Confidential
Information to any of its employees, consultants, Affiliates or sublicensees
shall be made only if and to the extent necessary to carry out its rights and
responsibilities under this Agreement, shall be limited to the maximum extent
possible consistent with such rights and responsibilities and shall only be
made to persons who are bound by written confidentiality obligations to
maintain the confidentiality thereof and not to use such Confidential
Information except as expressly permitted by this Agreement.  Access and IG each agree not to disclose the
Confidential Information to any Third Party under any circumstance without
prior written approval from the other Party, except as otherwise required by
law, and except as otherwise expressly permitted by this Agreement.  Each Party shall take such action, and shall
cause its Affiliates and sublicensees to take such action, to preserve the
confidentiality of the Confidential Information as it would customarily take to
preserve the confidentiality of its own confidential materials, which shall
not, in any event, be less than reasonable care.  Each Party, upon the other’s request, will
return all the Confidential Information disclosed to it by the other Party
pursuant to this Agreement, including all copies and extracts of documents,
within sixty (60) days of the request following the termination of this
Agreement, provided  that, a Party may retain Confidential
Information of the other Party relating to any license or right to use
Technology which survives such termination and one copy of all other Confidential
Information may be retained in inactive archives solely for the purpose of
establishing the contents thereof.


 


4.2                                                 Publicity.  Neither Party may publicly disclose the terms
of this Agreement or the status or content of the Research Program without the
prior written consent of the other Party; provided, however, that
either Party may make such a disclosure (a) to the extent required by law or by
the requirements of any nationally recognized securities exchange, quotation
system or over-the-counter market on which such Party has its securities listed
or traded or (b) to any actual or prospective acquirors, real estate or
equipment lessors, investors, lenders and other potential financing sources who
are obligated to keep such information confidential.  In the event that such disclosure is required
by the foregoing clause (a), the disclosing Party shall make reasonable efforts
to provide the other Party with notice beforehand and to coordinate with the
other Party to the maximum extent possible with respect to the wording and
timing of any such disclosure.  The
Parties shall mutually agree on a press release announcing the execution of
this Agreement to be issued immediately following the


 


6



















 


execution hereof.
If either Party wishes to issue any further press release regarding the
Research Program, it shall furnish a copy to the other Party, which shall
review such press release and provide any comments within two (2) business
days. Once any written statement is approved for public disclosure by both
Parties, either Party may make subsequent public disclosure of the contents of
such statement without the further approval of the other Party.


 


5.                                      JOINT
SCIENCE COMMITTEE


 


5.1                                                 Functions and Powers of the Joint Science Committee.  The Joint Science Committee (“JSC”)
established by IG and Access pursuant to the Research Agreement dated
March 5, 2003 shall oversee and coordinate the Parties’ conduct of the
Research Program.  During the Term, the
JSC will exchange information in anticipation of developing mutually beneficial
business opportunities pursuant to the subject matter hereof.  The JSC shall keep written minutes of its
meetings and all actions taken or approved by the JSC.  The members of the JSC designated by each
Party shall be responsible for keeping that Party informed as to the progress
of the Research Program.  The JSC shall
recommend to the Parties amendments and/or modifications to the Protocol and
Timeline and the scope of the Research Program and make recommendations to the
Parties as to the mutually beneficial prosecution of IG Patent Rights and
Program Patent Rights.  The JSC shall
have no power to amend, modify or waive compliance with this Agreement and
shall have only such powers as are specifically delegated to it hereunder.


 


5.2                                                 JSC Governance.


 


5.2.1.           Membership.  The JSC is composed of two (2)
representatives of IG and two (2) representatives of Access.  These representatives are h as follows:


 


IG Representatives:


 


Kenneth Kornman, DDS, Ph.D.


Philip R. Reilly, MD, JD


 


Access Representatives:


 


Robin Dykhouse


Daniel Beio


 


Either Party may designate substitutes for its JSC representatives to
participate if one or more of such Party’s designated representatives is unable to be present at a meeting.  A Party may replace its representatives
serving on the JSC from time to time by written notice to the other Party
specifying the prior representative(s) to be replaced and the replacement(s)
therefor.


 


7



















 


6.                                      INTELLECTUAL
PROPERTY RIGHTS


 


6.1                                                 Ownership.


 


6.1.1.           Access
Intellectual Property Rights. 
Subject to IG’s rights as described in Section 3 of this Agreement,
Access shall have sole and exclusive ownership of all right, title and interest
[    *    
*     *    
*    ] in and to all Access
Technology and Access Patent Rights, and all Program Inventions and Program
Patent Rights relating to Nutrigenomics Consumables and Dermagenomics
Consumables, with full rights to license or sublicense.


 


6.1.2.           IG Intellectual Property Rights.  Subject to Access’s rights as described in
Section 3 of this Agreement, IG shall have sole and exclusive ownership of
all right, title and interest [      *      *     
*      *      ] in and to all IG Technology, IG Patent
Rights and all Program Inventions and Program Patent Rights relating to
Nutrigenomics Tests and Dermagenomics Tests, with full rights to license or
sublicense.


 


6.1.3.           Intellectual
Property Rights for [     *     ] Tests.  Subject to the rights of the Parties described
in Section 3 of this Agreement, Access and IG shall have equal joint
ownership of all right, title and interest [    
*     *     *    
*     ] in and to all Program
Inventions and Program Patent Rights not covered by Sections 6.1.1 or 6.1.2
above (including all Program Inventions and Program Patent Rights relating to
[       *       ] Tests; provided, however, that Access
shall have the exclusive right to sell and grant licenses for [       *      
] Tests covered by such Program Inventions and Program Patent Rights in
the channels of distribution utilized by Access and its Related Companies (the
“Access Channels”) and IG shall have the exclusive right to sell and grant
licenses for [       *       ] Tests covered by such Program
Inventions and Program Patent Rights outside the Access Channels.


 


6.2                                                 Patent
Filing, Prosecution and Maintenance. 
During the Term with respect to any Patent Rights arising hereunder:


 


6.2.1              Access
shall bear the cost associated with the filing, prosecution, issuance and maintenance
of all Program Patent Rights relating to Nutrigenomics Consumables and
Dermagenomics Consumables and shall control prosecution of all such Program
Patent Rights, including, but not limited to, having the right to choose the
patent attorney(s) or agent(s) who will prosecute the applications, having the
right to inspect, review and provide substantive comments to all correspondence
with any patent office or patent agent, and having the right to select the
countries in which or treaties under which the patent applications will be
filed.


 


6.2.2              IG
shall bear the cost associated with the filing, prosecution, issuance and
maintenance of all Program Patent Rights relating to Nutrigenomics Tests and
Dermagenomics Tests and shall control prosecution of all such Program Patent
Rights, including, but not limited to, having the right to choose the patent
attorney(s) or agent(s) who will prosecute the applications, having the right
to inspect, review and provide substantive comments to all correspondence with
any patent office or patent agent, and


 


8



















 


having
the right to select the countries in which or treaties under which the patent
applications will be filed.


 


6.2.3              The
Parties shall jointly bear the cost associated with the filing, prosecution,
issuance and maintenance of all other Program Patent Rights (including Program
Patent Rights relating to [       *       ] 
Tests) and shall jointly control prosecution of all such Program Patent
Rights, including, but not limited to, having the right to choose the patent
attorney(s) or agent(s) who will prosecute the applications, having the right
to inspect, review and provide substantive comments to all correspondence with
any patent office or patent agent, and having the right to select the countries
in which or treaties under which the patent applications will be filed.  In the event that the parties cannot agree on
the filing and/or maintenance of Program Patent Rights hereunder, then each
Party shall have the right to proceed at its own costs with such filing and/or
maintenance.  If one Party proceeds in
filing and/or maintaining Program Patent Rights hereunder, then the other Party
agrees to assign or otherwise take any action necessary to assist the
cost-bearing Party in achieving the filing or maintenance of such Program
Patent Rights.


 


 


7.                                      TERM;
TERMINATION


 


7.1                                                 Term. 
This Agreement shall commence on the Effective Date and continue for a
period of two (2) years, unless extended or sooner terminated as set forth in
this Section 7 (the “Term”).  At
least six (6) months prior to the end of the initial Term and any extension
thereof, the JSC shall advise the Parties as to whether the JSC believes that
the Research Program should be extended or expanded, but any extension or
expansion shall require the agreement of the parties.


 


7.2                                                 Termination.


 


7.2.1.           Termination
for Breach.  In the event that either
Party defaults or breaches any material term of this Agreement on its part to
be performed or observed, the other Party shall have the right to terminate
this Agreement (a) by giving thirty (30) days’ written notice to the defaulting
Party in the case of a breach of any payment term of this Agreement and (b) by
giving sixty (60) days’ written notice to the defaulting Party in the case of
any other breach; provided, however, that in the case of a
default or breach capable of being cured, if the said defaulting Party shall
cure the said default or breach within such notice period after the said notice
shall have been given, then the said notice shall not be effective.


 


7.2.2.           Termination
for Bankruptcy.  In the event that
either Party files for protection under bankruptcy laws, makes an assignment
for the benefit of creditors, appoints or suffers appointment of a receiver or
trustee over its property, files a petition under any bankruptcy or insolvency
act or has any such petition filed against it which is not discharged within
sixty (60) days of the filing thereof, then the other Party may terminate this
Agreement effective immediately upon written notice to such Party.


 


7.3                                                 Surviving Provisions.  Termination of this Agreement for any reason
shall be without prejudice to rights which expressly survive termination in
accordance with the


 


9



















 


terms of this
Agreement, including without limitation, the rights and obligations of the
Parties provided in Sections 4, 6, 7.3, 8.2, 8.3 and 9, all of which shall
survive such termination.


 


8.                                      REPRESENTATIONS
AND WARRANTIES


 


8.1                                                 Mutual Representations.  Access and IG each represents and warrants to
the other Party as follows:


 


8.1.1.           Organization.  It is a corporation duly organized, validly
existing and is in good standing under the laws of the jurisdiction of
organization, is qualified to do business and is in good standing as a foreign
corporation in each jurisdiction in which the performance of its obligations
hereunder requires such qualification.


 


8.1.2.           Authorization.  The execution, delivery and performance by it
of this Agreement have been duly authorized by all necessary corporate action
and do not and will not violate any provision of any law, rule, regulation,
order, writ, judgment, injunction, decree, determination or award presently in
effect having applicability to it or any provision of its charter documents.


 


8.1.3.           Binding
Agreement.  This Agreement is a
legal, valid and binding obligation of it enforceable against it in accordance
with its terms and conditions.


 


8.1.4.           No
Inconsistent Obligation.  It is not
under any obligation to any person, or entity, contractual or otherwise, that
is conflicting or inconsistent in any respect with the terms of this Agreement
or that would impede the diligent and complete fulfillment of its obligations.


 


8.2                                                 Warranty Disclaimer.  EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN
THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTY WITH RESPECT TO ANY
TECHNOLOGY, GOODS, SERVICES, RIGHTS OR OTHER SUBJECT MATTER OF THIS AGREEMENT
AND HEREBY DISCLAIMS WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE AND NONINFRINGEMENT WITH RESPECT TO ANY AND ALL OF THE FOREGOING.


 


8.3                                                 Limited Liability.  NOTWITHSTANDING ANYTHING ELSE IN THIS
AGREEMENT OR OTHERWISE, NEITHER ACCESS NOR IG WILL BE LIABLE WITH RESPECT TO
ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT
LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR (I) ANY INDIRECT, INCIDENTAL,
CONSEQUENTIAL OR PUNITIVE DAMAGES OR LOST PROFITS OR (II) COST OF PROCUREMENT
OF SUBSTITUTE GOODS OR TECHNOLOGY.


 


9.                                      MISCELLANEOUS


 


9.1                                                 Dispute Resolution.  The Parties recognize that disputes may from
time to time arise between the Parties during the term of this Agreement.  It is the objective of the Parties to
establish procedures to facilitate the resolution of disputes arising under
this Agreement, including, without limitation, disputes concerning the
definitions of terms used in


 


10



















 


this Agreement,
in an expedient manner by mutual cooperation and without resort to
litigation.  To accomplish this objective,
the Parties agree to follow the procedures set forth in this Section 9.1
to resolve any dispute arising under this Agreement.  In the event of such a dispute between the
Parties, either Party, by written notice to the other Party, shall have such dispute
referred to the Parties’ respective executive officers designated below or
their successors, for attempted resolution by good faith negotiations within
thirty (30) days after such notice is received. 
Said designated officers are as follows:


 


	
  For IG:

  	
   

  	
  Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
  For Access:

  	
   

  	
  Vice President, Research & Development

  



 


In the event the designated executive officers are not able to resolve
such dispute after such thirty (30) day period, then the Parties shall resolve
such dispute by arbitration under the Commercial Rules of the American
Arbitration Association (the “AAA”). 
Three arbitrators shall be selected. 
IG and Access shall each select one arbitrator and the two chosen
arbitrators shall select the third arbitrator, or failing agreement on the
selection of the third arbitrator, the AAA shall select the third
arbitrator.  Unless otherwise agreed by
IG and Access, arbitration will take place in Boston, Massachusetts.


 


9.2                                                 Notices.  All notices shall be in writing mailed via
certified mail, return receipt requested or courier providing evidence of
delivery, addressed as follows, or to such other address as may be designated
from time to time:


 


	
  If to IG:

  	
   

  	
  If to Access:

  
	
   

  	
   

  	
   

  
	
  135 Beaver Street

  Waltham, MA 02452

  Attention:  Chief Executive Officer

  	
   

  	
  7575 Fulton St. East

  Ada, MI  49355-0001

  Attention:  George Calvert

  
	
   

  	
   

  	
   

  
	
  With a copy to:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Mintz, Levin, Cohn, Ferris,

    Glovsky and Popeo, P.C.

  One Financial Center

  Boston, MA 02111

  Attention:  Jeffrey M. Wiesen, Esquire

  	
   

  	
  7575 Fulton St. East.

  Ada, MI  49355-0001

  Attention:  Thomas R. Curran

  Chief Legal Officer

  



 


9.3                                                 Governing Law.  This Agreement shall be governed by and
construed in accordance with the laws of the State of Michigan, without regard
to the application of principles of conflicts of law.


 


9.4                                                 Binding Effect.  This Agreement shall be binding upon and
inure to the benefit of the Parties and their respective legal representatives,
successors and permitted assigns.


 


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9.5                                                 Headings.  Section and subsection headings are
inserted for convenience of reference only and do not form a part of this
Agreement.


 


9.6                                                 Counterparts.  This Agreement may be executed simultaneously
in two or more counterparts, each of which shall be deemed an original.


 


9.7                                                 Amendment; Waiver.  This Agreement may be amended, modified,
superseded or canceled, and any of the terms may be waived, only by a written
instrument executed by each Party or, in the case of waiver, by the Party or
Parties waiving compliance, provided, that in the case of IG, such amendment
must be approved by a majority of the members of IG’s Board of Directors who
are not selected by or affiliated with Access. 
The delay or failure of any Party at any time or times to require
performance of any provisions shall in no manner affect the rights at a later
time to enforce the same. No waiver by any Party of any condition or of the
breach of any term contained in this Agreement, whether by conduct, or
otherwise, in any one or more instances, shall be deemed to be, or considered
as, a further or continuing waiver of any such condition or of the breach of
such term or any other term of this Agreement.


 


9.8                                                 No Agency or Partnership.  Nothing contained in this Agreement shall
give either Party the right to bind the other, or be deemed to constitute the
Parties as agents for the other or as partners with each other or any Third
Party.


 


9.9                                                 Assignment and Successors.  This Agreement may not be assigned by either
Party without the written consent of the other which shall not be unreasonably
withheld, except that each Party may assign this Agreement and the rights,
obligations and interests of such Party to any purchaser of all or
substantially all of its assets or to any successor corporation resulting from
any merger or consolidation of such Party with or into such corporation.


 


9.10                                           Force Majeure.  Neither IG nor Access shall be liable for
failure of or delay in performing obligations set forth in this Agreement, and
neither shall be deemed in breach of its obligations, if such failure or delay
is due to natural disasters or any causes beyond the reasonable control of IG
or Access.  In event of such force
majeure, the Party affected thereby shall use reasonable efforts to cure or
overcome the same and resume performance of its obligations hereunder.


 


9.11                                           Interpretation.  The Parties hereto acknowledge and agree
that:  (i) each Party and its counsel
reviewed and negotiated the terms and provisions of this Agreement and have
contributed to its revision; (ii) the rule of construction to the effect that
any ambiguities are resolved against the drafting Party shall not be employed
in the interpretation of this Agreement; and (iii) the terms and provisions of
this Agreement shall be construed fairly as to all Parties hereto and not in a
favor of or against any Party, regardless of which Party was generally
responsible for the preparation of this Agreement.


 


9.12                                           Integration; Severability.  This Agreement is the sole agreement with
respect to the subject matter hereof and supersedes all other agreements and
understandings between the Parties with respect to same.  If any provision of this Agreement is or
becomes


 


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invalid or is
ruled invalid by any court of competent jurisdiction or is deemed
unenforceable, it is the intention of the Parties that the remainder of the
Agreement shall not be affected.


 


IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed by their duly authorized representatives.


 


 


	
   

  	
  INTERLEUKIN GENETICS, INC.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Philip R. Reilly

  	
   

  
	
   

  	
   

  	
  Philip R. Reilly

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Chief Executive Officer

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ACCESS BUSINESS GROUP LLC

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ George D. Calvert

  	
   

  
	
   

  	
   

  	
  George Calvert

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Vice President - Research & Development

  



 


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APPENDIX A


 


OUTLINE OF RESEARCH AGREEMENT DELIVERABLES


 


 


[    
*      *      *     
Appendix A contains confidential material and has been omitted in its
entirety.     
*      *      *     
]


 


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