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.
10.9
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.
10.10
FORCE MAJEURE.
NEITHER ILI 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 ILI 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.
10.11
INTERPRETATION.
THE PARTIES HERETO ACKNOWLEDGE AND AGREE THAT:
(I)
EACH PARTY 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.
CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
10.12
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 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/ Timothy J. Richardson
Timothy J. Richerson
Chief Executive Officer
ACCESS BUSINESS GROUP
INTERNATIONAL LLC
By:
/s/ Robin M. Dykhouse
Robin M. Dykhouse
Vice President - Research & Development
CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
INSERT APPENDIX A [2 PAGES]
[***]
CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
APPENDIX B
PAYMENT SCHEDULE
Aggregate Consideration:
Est. $2,300,000
(1)
$1,670,000 (time and materials).
Access shall pay ILI $417,500
on the last business day of March, June, September and December, 2007.
(2)
$630,000 (representing estimated external costs to be incurred