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EXHIBIT 10.5  


 
  LICENSE AGREEMENT    
  


    This license agreement (the "Agreement") is made and is effective as of the 29th of August 2000 by and between Vyrex Corporation, a
California corporation with principal offices located at 2159 Avenida de la Playa, La Jolla, California 92037-3215 ("Licensor") and VDF Futureceuticals, Inc., and Illinois
corporation with principal offices located at 300 W. 6th Street, Momence, Illinois 60954 ("Licencee"). 


 
 

RECITALS    
  



    WHEREAS, Licensor is the owner and/or exclusive licensee of certain chromium and boron compounds and/or
complexes, including method and know-how, which compounds and/or complexes are covered by United States and/or foreign patents. 


    WHEREAS, Licensee is engaged in the business of manufacturing and marketing raw materials and products to the pharmaceutical,
nutraceutical, and agricultural industries and is desirous of obtaining certain rights from Licensor to further develop, manufacture and commercialize products based on, or derived from, the chromium
and boron compounds and/or complexes. 


    WHEREAS, both Licensor and Licensee are desirous of entering to a business relationship whereby Licensor would be granted the exclusive
worldwide right to manufacture Licensed Products and both Licensor and License would have the right to commercialize Licensed Products. 


    THEREFORE, in consideration of the mutual covenants and promises set forth herein, the parties agree as follows: 


 
 

1. DEFINITIONS    
  


    1.1 "Licensor's
Patent Rights" means patent rights to any subject matter claimed in or covered by: (1) United States Patent number 6071545; patents issued
thereon; divisions and continuations thereof; continuations-in-part thereof; substitutions or reissues thereof; and foreign patents and patent applications corresponding
thereto, and (2) United States Patent number 5962049; patents issued thereon; divisions and continuations thereof; continuations-in-part thereof; substitutions or
reissues thereof; and foreign patents and patent applications corresponding thereto. 



    1.2 "License
Method" shall mean any process, method, procedure or use which is covered by the Licensor's Patent Rights or the use or practice of which, but for the
licenses granted hereunder, would constitute an infringement of any claim in Licensor's Patent Rights. 


    1.3 "Licensed
Product" means any (a) material or product containing the elements boron and/or chromium and that is covered by Licensor's Patent Rights or whose
manufacture, use, practice or sale would constitute, but for the license granted to Licensee pursuant to this Agreement, an infringement of any claim within Licensee's Patent Rights, and/or
(b) any material or product developed, made, used, sold, registered or practiced with License Method. 



    1.4 "Affiliates"
means any legal person which directly or indirectly controls, is controlled by, or is under common control with Licensee. As defined herein "control"
means the power to direct the policies of an entity whether through ownership of voting securities or otherwise. 


    1.5 "Gross
Revenue" means the gross sales of Licensed Products by Licensee, its Affiliates and its sublicensees based on gross invoice prices of Licensed Products less
cash, trade, or quantity discounts actually taken. 



    1.6 "Major
Market Countries" means the United States of America, Canada, Japan, Korea, United Kingdom, France, Germany, Italy, Spain, and Australia. 


Vyrex/VDF Agreement - Page 1 of 10 





 
 
 

2. EXCLUSIVE GRANT    
  


    2.1 Subject
to the limitations set forth in this Agreement, Licensor hereby grants to Licensee an exclusive worldwide license under Licensor's Patent Rights to
manufacture Licensed Products and to practice Licensed Method. 


    2.2 Subject
to the limitations set forth in this Agreement, Licensor further grants to Licensee a non-exclusive worldwide license under Licensor's Patent
Rights to commercialize Licensed Products with Licensor retaining co-marketing rights to commercialize Licensed Products manufactured by Licensee pursuant to paragraph 2.1 above.. 



    2.3 Except
as otherwise provided herein, the license granted in section 2.1 shall be exclusive for the term of this Agreement. 


    2.4 Licensor
expressly reserves the right to use the Invention, Licensor's Patent Rights and associated technology for education and research purposes and to publish
the results thereof. 


 
 

3. SUBLICENSES    
  


    3.1 Licensor
grants to the Licensee the right to issue sublicenses to third parties under the licenses herein granted, provided the Licensee has current exclusive
rights thereto under this Agreement. To the extent applicable, such sublicenses shall include all of the rights of, and obligations due to, the Licensor that are contained in this Agreement. Licensor
and Licensee agree that revenues derived from sub-license fees, sublicense maintenance fees and or sublicense royalties shall be split (50%/50%) between Licensor and Licensee. If Licensee
is unable to sublicense Licensor's Patent Rights under conditions providing it a fair return, Licensor agrees to enter negotiations with Licensee to arrive at sublicensing terms which are reasonable
and fair to both parties. 


    3.2 Within
thirty (30) days after execution thereof, Licensee shall provide the Licensor with a copy of each sublicense issued hereunder. Licensee shall also
promptly collect and guarantee payment of all
royalties due Licensor from sublicensees; and summarize and deliver all reports due Licensee from sublicensees. 


    3.3 Upon
termination of this Agreement for any reason, Licensor, at its sole discretion, shall determine whether any or all sublicenses shall have been canceled or
assigned to the Licensor. 


 
 

4. LICENSE-ISSUE FEE, LICENSE MAINTENANCE FEES AND MILESTONE PAYMENTS    
  


    4.1 The
Licensee shall pay to Licensor an Initial License-Issue Fee of twenty-five thousand dollars ($25,000.00) upon execution of this Agreement. Said fee
is non-refundable and not an advance against royalties. 


    4.2 The
Licensee shall pay to Licensor a Supplemental License-Issue Fee of seventy-five thousand dollars ($75,000.00) payable upon attaining $75,000.00 in
initial sales of Licensed Products. Said fee is non-refundable and not an advance against royalties. 


 
 

5. ROYALTIES    
  


    5.1 The
Licensee shall pay to Licensor a total gross royalty of thirty percent (30%) of Gross Revenue. Of the thirty percent (30%) gross royalty, Licensee shall credit
and allocate five percent (5%) to research and development and the distribution/publication of the results of that research and development of Licensed Product and pay the remaining twenty-fiver
percent (25%) to Licensor in accordance with paragraphs 5.2, 5.3, 5.4 and 5.5 below, and sections 7.3 and 7.4. 


Vyrex/VDF Agreement - Page 2 of 10 





 


    5.2 Paragraphs 1.1, 1.2 and 1.3 define Licensor's Patent Rights, Licensed Product and Licensed Method so that royalties shall be payable on products and methods covered
by both pending patent applications and issued patents. 


    5.3 Royalties
accruing to the Licensor shall be paid to the Licensor monthly commencing on the date of first commercial sale by Licensee, or its affiliates, pursuant to
the licenses granted herein. Each such payment will be for royalties which accrued within the Licensee's most recently completed calendar month. 



    5.4 Licensee
shall pay to the Licensor a minimum monthly royalty, commencing on the effective date of this agreement, equal to the amounts in schedule set forth below.
The minimum royalty for any given month shall be credited against the actual paid Licensor for the same month. Month one commences upon both GRAS affirmation and FDA Pre-market
Notification approval, (21 CFR Part 190). If the Chromium patent does not prove to be a superior form of Chromium, Minimum Monthly Royalties will not be due. This will be decided by both
parties at commencement of month thirteen. 



	Time Period from Effective Date Hereof
 
	 	Minimum

Monthly Royalty

	 
	 	Boron
 
	 	Chromium
 

	Months 1-12	 	 	None	 	 	None
	Months 13-24	 	$	2,500	 	$	2,500
	Months 25-36	 	 	7,500	 	 	7,500
	Months 37-life of agreement	 	 	15,000	 	 	15,000






    5.5 All
monies due the Licensor shall be payable in United States funds collectible at par in La Jolla, California or at such other location as Licensor may from time
to time designate. When Licensed Products are sold for monies other than United States dollars, the earned royalties will first be determined in the foreign currency of the country in which such
Licensed Products were sold and then converted into equivalent United States funds. The exchange rate will be that quoted in the Wall Street Journal on the last business day of the reporting period. 


 
 

6. DUE DILIGENCE    
  


    6.1 The
Licensee, upon execution of this Agreement, shall use best efforts and shall diligently proceed with the development, testing, regulatory approval, manufacture
and sale of Licensed Products in all countries of the world and shall earnestly and diligently endeavor to market the same in all countries of the world within a reasonable time after execution of
this Agreement and in quantities sufficient to meet the market demands therefore. Licensor does not guaranty that approvals will be obtained in all countries where applications are filed. 


    6.2 The
Licensee shall be entitled to exercise prudent and reasonable business judgment in meeting its due diligence obligations hereunder. 



    6.3 The
Licensor and Licensee shall cooperate and use reasonable efforts to obtain all necessary governmental approvals for the manufacture, use and sale of Licensed
Products in all Major Market Countries. The costs of such necessary government approvals shall be borne by Licensee. 


 
 

7. PROGRESS AND ROYALTY PAYMENTS    
  


    7.1 Beginning
on the first six (6) month anniversary of the effective date of this agreement, and semi-annually thereafter, the Licensee shall submit
to the Licensor a progress report covering the activities of Licensee, its affiliates and sublicensees related to the development, testing, and marketing of each Licensed Product until the first
commercial sale of each such product. 


Vyrex/VDF Agreement - Page 3 of 10 





 


    7.2 The progress reports submitted under section 7.1 shall include, but not be limited to, the following topics: 



	•
	summary
of work complete



	•
	key
scientific discoveries



	•
	summary
of work in progress



	•
	current
schedule of anticipated events or milestones



	•
	market
plans for introduction of Licensed Products, and



	•
	a
summary of resources (dollar value) spent in the reporting period. 




    7.3 After
the first commercial sale of a Licensed Product anywhere in the world, the Licensee will make monthly royalty reports to the Licensor within thirty
(30) days after the end of each calendar month. Each such royalty report will cover the most recently completed calendar month and will show (a) the gross sales of Licensed Products,
(b) the number of each type of Licensed Product sold; (c) the royalties, in U.S. dollars, payable hereunder with respect to such sales, (d) the method used to calculate the
royalty; and (e) the exchange rates used, if any. 


    7.4 If
no sales of Licensed Products have been made during any reporting period, a statement to this effect shall be provided. 


 
 

8. BOOKS AND RECORDS    
  


    8.1 The
Licensee shall keep and shall cause its sublicensees to keep books and records in accordance with generally accepted accounting principles accurately reflecting
all transactions and 


    information
relating to this Agreement. Such books and records shall be open to inspection by representatives or agents of Licensor at reasonable times upon reasonable notice. 


    8.2 The
fees and expenses of the Licensor's representatives performing such an examinations shall be borne by Licensor. However, if an error in royalties of more than
five percent (5%) of the total royalties due for any royalty period is discovered, then the fees and expenses of these representatives shall be borne by Licensee. 


 
 

9. RESEARCH AND DEVELOPMENT    
  


    9.1 Licensor
and Licensee agree to cooperate in research and development to facilitate and enhance commcerciability of Licensed Products. 


    9.2 Licensee
may negotiate grants including research contracts for research with various public or private institutions. The patent rights owned by the Licensor to
inventions arising from such research, for which Licensee pays all direct and indirect costs of the research project, and which enhance the safety, utility, manufacturability or commercial value of
the Licensed Products may be added to patent rights included in the license. 


    9.3 All
intellectual property inventions arising or derived from Licensors Patent Rights, Licensed Method, Licensed Products, and know-how shall be owned
exclusively by Licensor limited only by the licenses granted herein. 


    9.4 To
the extent that inventions are discovered, falling outside the scope of paragraph 9.3 above, during the course of research and development conducted
jointly by Licensor and Licensee, said inventions shall be jointly owned, fifty percent (50%) each by Licensor and Licensee. To the extent that Licensor and Licensee are not "inventors" of the
invention pursuant to the definitions of inventorship 


Vyrex/VDF Agreement - Page 4 of 10 





 


as applied by the United States Patent and Trademark Office, Licensor and Licensee shall be ensure that they are joint assignees, fifty percent (50%) interest each, in said patents. 


 
 

10. TERM OF THE AGREEMENT    
  


    10.1 Unless
otherwise terminated by operation of law or by acts of the parties in accordance with the terms of this Agreement, this Agreement shall be in force from
the effective date recited on page one and shall remain in effect until the latter of expirations of the last to expire of any Patent Rights licensed under this Agreement or until the last Patent
Application licensed under this Agreement is finally abandoned. 


    10.2 Any
expiration or termination of this Agreement shall not affect the rights and obligations set forth in the following Articles: 



	Article 5	 	Royalties
	

Article 7	
 	

Progress and Royalty Reports
	

Article 8	
 	

Books and Records
	

Article 11	
 	

Termination by Licensor
	

Article 12	
 	

Termination by Licensee
	

Article 19	
 	

Indemnification
	

Article 24	
 	

Failure to Perform
	

Article 29	
 	

Secrecy





 
 

11. TERMINATION BY THE LICENSOR    
  


    11.1 If
the Licensee should violate or fail to perform any term or covenant of this Agreement, then the Licensor may give written notice of such default (Notice of
Default) to the Licensee. If the Licensee should fail to cure such default within thirty-five (35) days of the effective date of such notice, the Licensor shall have the right to
terminate this Agreement and the licenses herein by a second written notice (Notice of Termination) to the Licensee. If a Notice of Termination is sent to the Licensee this Agreement shall
automatically terminate upon the date such notice is sent. Such termination shall not relieve the Licensee of its obligations to pay any royalties or license fees owing at the time of such
termination, shall not terminate Licensee's right to report and pay royalties on Licensed Products in inventory at the time of termination, and shall not impair any accrued right of the Licensor. 


    11.2 In
addition to the provisions of paragraph 11.1 above, Licensee shall be deemed in default, and Licensor shall have the right terminate the Agreement, if
Licensee: 



	(a)
	becomes
insolvent, as that term is defined pursuant to the bankruptcy provisions of the United States Code;



	(b)
	fails
to pay its debts as they generally become due;



	(c)
	voluntarily
seeks, consents or acquiesces in the benefits of any United States bankruptcy or similar debtor relief laws of any jurisdiction;



	(d)
	becomes
a party to or is made the subject of any proceeding provided for by any debtor-relief law that could suspend or otherwise effect Licensee's rights under this Agreement; or



	(e)
	fails
or ceases to actively pursue prosecution, development and/or commercialization of Licensed Products. 



Vyrex/VDF Agreement - Page 5 of 10 





 





    11.3 Upon
termination, all rights granted pursuant the this Agreement shall revert in full to Licensor effective as of the date of termination. 


 
 

12. TERMINATION BY LICENSEE    
  


    12.1 The
Licensee shall have the right at any time to terminate this Agreement by giving notice in writing to the Licensor. Such notice of terminations shall be
subject to Article 20 (Notices) and termination of this Agreement shall be effective one hundred twenty (120) days from the effective date of such notice. If such termination is without
cause within the first two (2) years of this Agreement, Licensee shall pay to the Licensor the sum of seventy-five thousand dollars ($ 75,000.00) with the Notice of Termination
before such notice is effective. 


    12.2 Any
termination pursuant to Paragraph 12.1 of this Agreement shall not relieve the Licensee of any obligations or liability accrued hereunder prior to such
termination or rescind anything done by the Licensee or any payments made to, or accrued to the benefit of, Licensor hereunder prior to the time such termination becomes effective, and such
termination shall not affect in any manner any rights of the Licensor arising under this Agreement prior to such termination. 


 
 

13. DISPOSITION OF PRODUCTS AND PROPERTY UPON TERMINATION    
  


    13.1 Upon
termination of this Agreement by either party (i) the Licensee shall have the privilege of disposing of all previously made or partially made Licensed
Products but no more, within a period of one hundred twenty (120) days, provided, however, that the sale of such Licensed Products shall be subject to the terms of this Agreement including, but
not limited to, the payment of royalties at the rate and at the time provided herein and the rendering of reports thereon, and (ii) the Licensee shall promptly return and shall cause its
sublicensees to return, to the Licensor all property belonging to the Licensor and all copies and facsimiles thereof and derivatives therefrom. 


 
 

14. USE OF TRADEMARKS AND NAMES    
  


    14.1 Nothing
contained in this Agreement shall be construed as conferring any right to use in advertising, publicity, or other promotional activities any name, trade
name, trademark, or other designation of either party hereto by the other (including contraction, abbreviations or simulations of any of the foregoing) in the absence of specific written consent of
the owner of such name, trade name, trademark, or other designation. Unless required by law, the use by Licensee, its Affiliates or sublicensees of the name of Licensor is expressly prohibited in the
absence of written consent by Licensor. 


 
 

15. LIMITED WARRANTY    
  


    15.1 The
Licensor warrants to the Licensee that it has the lawful right to grant these licenses. 


    15.2 These
licenses and associated inventions are provided WITHOUT WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER WARRANTY, EXPRESS OR
IMPLIED. THE LICENSOR MAKES NO REPRESENTATION OR WARRANTY THAT THE LICENSED PRODUCTS OR LICENSED METHODS WILL NOT INFRINGE ANY PATENT OR OTHER PROPRIETARY RIGHT. 


    15.3 IN
NO EVENT WILL THE LICENSOR BE LIABLE FOR ANY INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES RESULTING FROM EXERCISE OF THIS LICENSE OR THE USE OF THE INVENTION
OR LICENSED PRODUCTS. 


Vyrex/VDF Agreement - Page 6 of 10 





 


    15.4 Nothing in this Agreement shall be construed as: 



	(a)
	a
warranty or representation by the Licensor as to the validity or scope of any Licensor's Patent Rights; or



	(b)
	a
warranty or representation that anything made, used, sold or otherwise disposed of under any license granted in this Agreement is or will be free from infringement of patents of
third parties; or



	(c)
	an
obligation to bring or prosecute actions or suits against third parties for patent infringement except as provided in Article 18; or



	(d)
	conferring
by implications, estoppel or otherwise any license or rights under any patents of the Licensor other then the Licensor's Patent Rights as defined herein, regardless of
whether such patents are dominant or subordinate to Licensor's Patent Rights; or



	(e)
	an
obligation that the Licensor furnish and license know-how to Licensee other than as defined herein. 



 
 

16. PATENT COSTS AND MAINTENANCE    
  


    16.1 Licensor
assumes all responsibility to prosecute and maintain, at its own expense, patents, and patent applications, relating to Licensor's Patent Rights and all
right, title and interest in said patents or patent applications shall belong to Licensor subject only to the licenses granted hereunder. 


 
 

17. PATENT MARKING    
  


    17.1 The
Licensee agrees to mark all Licensed Products, or their containers, made, used or sold under the terms of this Agreement in accordance with applicable patent
marking laws and include such other marks, including logos or trademarks as Licensor and Licensee shall agree upon. 


 
 

18. PATENT INFRINGEMENT    
  


    18.1 In
the event that either Licensor or Licensee shall learn of an infringement of any patent licensed under this Agreement, the discovering party shall inform the
other in writing within thirty (30) days of learning of the infringement and include in such notice the available evidence of infringement. Both parties to this Agreement agree that during the
period, and in a jurisdiction where the Licensee has exclusive rights under this Agreement, neither will notify a third party of the infringement of any of Licensor's Patent Rights without first
obtaining consent of the other party, which consent shall not be unreasonably denied. Both parties shall use their best efforts in cooperation with each other to terminate such infringement without
litigation. 


    18.2 The
Licensor may request that Licensee take legal action against the infringement of the Licensor's Patent Rights. Such request shall be made in writing. Licensee
shall have six (6) months within which to resolve the alleged infringement in a manner and on such terms and conditions as are acceptable to Licensor and Licensee. Licensee may bring suit for
patent infringement within the six (6) period in a jurisdiction where the Licensee had exclusive rights under this Agreement. However, in the event the Licensee elects to bring suit in
accordance with this paragraph, the Licensor may thereafter join such suit at its own expense. 


    18.3 If
legal action is decided upon, it shall be at the expense of the party on account of whom suit is brought and all recoveries shall be distributed as follows:
(1) if Licensee brings legal action on its own account, to the extent there is a recovery of compensation for lost royalty or license revenue, Licensor shall be entitled to a share of said
recovery in the same proportion as it would otherwise be entitled to in accordance with the royalty and license revenue provisions set forth in the Agreement; 


Vyrex/VDF Agreement - Page 7 of 10 





 


and (2) should legal action brought jointly by the Licensor and the Licensee and participated in by both parties any and all recoveries shall be shared jointly. 


    18.4 Each
party agrees to cooperate with the other in litigation proceedings instituted hereunder but at the expense of the party on account of whom suit is brought.
Such litigation shall be controlled by the party bringing the suit, except that either party may be represented by counsel of its choice pursuant to such party's determination in any suit brought by
the other party. 


 
 

19. INDEMNIFICATION    
  


    19.1 The
Licensee shall, and shall cause its sublicensees to, indemnify, hold harmless and defend the Licensor, its officers, employees and agents; the sponsors of the
research that the led to the Invention, and the inventors of the patents and patent applications in Licensor's Patent Rights and their employers from and against any and all liabilities, claims,
suits, losses, damage, costs, fees and expenses resulting from or arising out of the exercise of this license or any sublicense. This indemnification will include, but will not be limited to, any
product liability. 


    19.2 The
Licensee, at its sole cost and expense, shall insure its activities in connection with the work under this Agreement and obtain, keep in force and maintain
insurance in an amount adequate to insure for any and all potential third party claims provided for in paragraph 19.1 above. 


    19.3 The
Licensor shall promptly notify Licensee in writing of any claim or suit brought against the Licensor for which Licensor intends to invoke the provisions of
this Article. Licensee shall keep the Licensor informed on a current basis of its defense of any claims pursuant to this Article 19. 


 
 

20. NOTICES    
  


    20.1 Any
notice or payment required to be given to either party shall be deemed to have been properly given and to be effective (a) on the date of delivery if
delivered in person, or (b) five (5) days after mailing if mailed by first-class certified mail, postage paid, to the respective addresses given below, or to such other address as either
party shall designate by written notice given to the other party. 



	In the case of Licensee:	 	VDF Futureceuticals, Inc.

300 W. 6th Street

Momence, Illinois 60954
	

In the case of Licensor:	
 	

Vyrex Corporation

2159 Avenida de la Playa

La Jolla, California 92037-3215







 
 

21. ASSIGNABILITY    
  


    21.1 This
Agreement is binding upon and shall inure to the benefit of the Licensor, its successors and assigns, but shall assignable by the Licensee only with the
written consent of the Licensor, which consent shall not be unreasonably withheld. 


 
 

22. LATE PAYMENTS    
  


    22.1 In
the event royalty payments or fees are not received by the Licensor when due, the Licensee shall pay to the Licensor interest charges at a rate of ten percent
(10%) simple interest per annum. Such interest shall be calculated from the date payment was due until actually received by the Licensor. 


Vyrex/VDF Agreement - Page 8 of 10 





 
 
 

23. WAIVER    
  


    23.1 It
is agreed that no waiver of any party hereto of any breach or default of any of the covenants or agreements herein set forth shall be deemed a waiver as to any
subsequent and/or similar breach or default. 


 
 

24. FAILURE TO PERFORM    
  


    24.1 In
the event of a failure of performance due under the terms of this Agreement and if it becomes necessary for either party to undertake legal action against the
other on account thereof, then the
prevailing party shall be entitled to reasonable attorney's fees in addition to costs and necessary disbursements. 


 
 

25. GOVERNING LAWS    
  


    25.1 This
Agreement shall be interpreted and construed in accordance with the laws of the State of California, but the scope and validity of any patent or patent
application shall be governed by the applicable laws of the country of such patent or patent application. Th exclusive jurisdiction and venue for any dispute between the parties arising out of this
Agreement, or any term or condition thereof, shall be the Superior Court of California, County of San Diego, or the United States District Court, Southern District of California. 


 
 

26. PREFERENCE FOR UNITED STATES INDUSTRY    
  


    26.1 Because
this Agreement grants the exclusive right to use or sell the Invention in the United States, the Licensee agrees that any products embodying this
Invention or product through the use thereof will be manufactured substantially in the United States. 


 
 

27. FOREIGN GOVERNMENT APPROVAL OR REGISTRATION    
  


    27.1 If
this Agreement or any associated transaction is required by the law of any nation to either approved or registered with any governmental agency, the Licensee
shall assume all legal obligations to do so and all costs and expenses related thereto. 


 
 

28. EXPORT CONTROL LAWS    
  


    28.1 The
Licensee shall observe all applicable United States and foreign laws relating to this Agreement, including those with respect to the transfer of Licensed
Products and related technical data to foreign countries, including, without limitation, the International Traffic in Arms Regulations (ITAR) and the Export Administration Regulations. 


 
 

29. SECRECY    
  


    29.1 With
regard to confidential information ("Data"), which can be oral or written or both, received from the Licensor regarding this Invention, during their term of
this Agreement and for five (5) years thereafter the Licensee shall, and shall cause its Affiliates and sublicensees: 



	(1)
	not
to use Data except for the sole purpose of performing under the terms of this Agreement;



	(2)
	safeguard
the Data against disclosure to others with the same degree of care as it exercises with its own data of a similar nature;



	(3)
	not
to disclose Data to others (except to its employees, agents, or consultants, Affiliates or sublicensees who are bound to Licensee by a like obligations of confidentiality)
without the 



Vyrex/VDF Agreement - Page 9 of 10 





 


express
written consent of the Licensor, except that Licensee shall not be prevented from using or disclosing any of the Data: 


	(a)
	which
Licensee can demonstrate by written records previously known to it;



	(b)
	which
is now, or becomes in the future, public knowledge other than through acts or omissions of Licensee; or



	(c)
	which
is lawfully obtained by Licensee from sources independent of the Licensor; and



	(d)
	which
is required to be disclosed under the California Public Records Act or other applicable laws. 




 
 

30. MISCELLANEOUS    
  


    30.1 The
headings of the several sections are inserted for convenience of reference only and are not intended to be a part of, or to affect the meaning or
interpretation of, this Agreement. 


    30.2 This
Agreement shall not be binding upon the parties until it has been signed below on behalf of each party, in which event, it shall be effective as of the date
recited on page one. 


    30.3 No
amendment or modification of this Agreement shall be valid or binding upon the parties unless made in writing and signed on behalf of each party. 


    30.4 This
Agreement embodies the entire understanding of the parties and shall supersede all previous communications, representations, or understandings, either oral
or written, between the parties relating to the subject matter hereof. 


    30.5 In
the event that any of the provisions of this Agreement shall be held invalid, illegal or unenforceable in any respect by a court of competent jurisdiction,
such invalidity, illegality or unenforceability shall not affect any other provision hereof but this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been
contained herein. 


    IN
WITNESS WHEREOF, both the Licensor and the Licensee have executed this Agreement, in duplicate originals, by their respective duly authorized officers and/or agents on the day and
year hereinafter written. 



	For:	 	VYREX CORPORATION	 	For:	 	VDF FUTURECEUTICALS, INC.
	By:	 	G. Dale Garlow	 	By:	 	Jeff Van Drunen
	 	 	President and Chief Executive Officer	 	 	 	Vice President
	

 	
 	

 /s/ G. DALE GARLOW   
	
 	

 	
 	

 /s/ JEFF VAN DRUNEN   

	

Date:	
 	

 September 11, 2000	
 	

Date:	
 	

 September 15, 2000




Vyrex/VDF Agreement - Page 10 of 10 









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LICENSE AGREEMENT

RECITALS

1. DEFINITIONS

2. EXCLUSIVE GRANT

3. SUBLICENSES

4. LICENSE-ISSUE FEE, LICENSE MAINTENANCE FEES AND MILESTONE PAYMENTS

5. ROYALTIES

6. DUE DILIGENCE

7. PROGRESS AND ROYALTY PAYMENTS

8. BOOKS AND RECORDS

9. RESEARCH AND DEVELOPMENT

10. TERM OF THE AGREEMENT

11. TERMINATION BY THE LICENSOR

12. TERMINATION BY LICENSEE

13. DISPOSITION OF PRODUCTS AND PROPERTY UPON TERMINATION

14. USE OF TRADEMARKS AND NAMES

15. LIMITED WARRANTY

16. PATENT COSTS AND MAINTENANCE

17. PATENT MARKING

18. PATENT INFRINGEMENT

19. INDEMNIFICATION

20. NOTICES

21. ASSIGNABILITY

22. LATE PAYMENTS

23. WAIVER

24. FAILURE TO PERFORM

25. GOVERNING LAWS

26. PREFERENCE FOR UNITED STATES INDUSTRY

27. FOREIGN GOVERNMENT APPROVAL OR REGISTRATION

28. EXPORT CONTROL LAWS

29. SECRECY

30. MISCELLANEOUS