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AND LICENSE AGREEMENT
TERMINATION AND LICENSE AGREEMENT (this "Agreement") is
December and effective as of November 23, 2005 (the "Effective
corporation ("Dyadic
International (USA), Inc.,
Florida, USA corporation ("Dyadic
International, Inc.,
Delaware, USA corporation ("Dyadic
together with Dyadic NL and Dyadic USA, the "Dyadic
Organisatie voor toegepast-natuurwetenschappeijk onderzoek TNO Netherlands
Organisation for Applied Scientific Research and more specifically TNO Quality
(formerly known as TNO Nutrition and Food Research Institute), Zeist, the
its wholly owned subsidiary, TNO
corporation ("TNO\BV"
together with TNO, the "TNO
Dyadic Parties and the TNO Parties are sometimes hereinafter collectively
referred to as the "Parties"
individually as a "Party."
Certain capitalized terms not expressly defined elsewhere herein are defined
the glossary appearing in Article X hereof.
NL, Dyadic USA and TNO are parties to that certain Cooperation and License
Agreement dated August 12, 2003 (the "Cooperation
described in Section 1.1 of the Cooperation Agreement, Dyadic NL is engaged
the business of developing, commercializing and using high throughput robotic
systems utilizing fungal organisms including the use of HTRS systems the scope
of which includes, but is not limited to, the discovery and development of
native, cDNA and evolved genes and expressed bio-molecules (including but not
limited to proteins, peptides, antibodies, enzymes and small molecules), and
libraries in fungi, as well as mode of action research and target gene
identification for antifungal drugs and fungicides, but which, for purposes
clarity, does not include the over expression of the aforementioned for
commercial purposes (referred to in the Cooperation Agreement and hereinafter
Cooperation Agreement, and as part of the collaboration of TNO and Dyadic USA
develop an HTRS system utilizing fungal organisms (a "Fungal
licensed to Dyadic NL on an exclusive, worldwide basis for the sole purpose
conducting the Business (i) pursuant to Section 2.2 of the Collaboration
Agreement, International Patent Application WO 2000NL00544 (the "TNO
(ii) pursuant to Section 2.3 of the Collaboration Agreement, any additional
Technology not included in the TNO Patent (including without limitation,
Improvements to the TNO Patent) which TNO has developed, owns, licenses or
otherwise has the right to use as of the date of the Collaboration Agreement
thereafter, and which is necessary or useful for the conduct of the Business
together with the TNO Patent, collectively, the "TNO
Licensed Technology").
to the terms of the Cooperation Agreement, as part consideration for its license
of the TNO Licensed Technology to Dyadic NL as described in Recital C (the
was granted various rights (i) to receive royalties, profits and gains realized
by Dyadic NL from its successful commercialization of a Fungal HTRS System
certain option rights to purchase shares of Dyadic Parent stock (collectively,
(ii) be paid fees for R&D services performed for Dyadic NL by TNO
consideration for its Royalty and Equity Interests, in addition to the Original
TNO License and other undertakings set for in the Cooperation Agreement, TNO
made an investment in Dyadic NL of costs incurred by TNO prior to the date
the Cooperation Agreement in the amount of US$161,000, as fixed by Attachment
to the Cooperation Agreement (the "Investment
Effective Date, Dyadic NL owes TNO US$377,000 of Service Fees for services
heretofore rendered by TNO to Dyadic NL (the "Unpaid
Parties now wish to (i) terminate the Cooperation Agreement and convert the
Original TNO License into a paid-up, exclusive, worldwide license to use the
Licensed Technology for the sole purpose of conducting the Business (the
extinguish in their entirety TNO's Royalty and Equity Interests in Dyadic NV and
Dyadic Parent, (iii) have the Dyadic NV liability to TNO for the Unpaid Service
Fees satisfied in full, and (iv) effect that termination of the Cooperation
Agreement and the conversion of the TNO License into the Replacement TNO
License, the extinguishment of the Royalty and Equity Interests and the
satisfaction of the Unpaid Services Fees liability, respectively, by Dyadic
Parent's issuance 161,560 shares of its Common Stock to TNO\BV (the
upon and subject to the terms and conditions of this Agreement.
NOW THEREFORE, in consideration of the foregoing Recitals, the covenants and
agreements of the Parties herein below set forth and other good and valuable
consideration, the receipt and sufficiency of which the Parties hereby each
mutually acknowledge, the Parties, for themselves and their respective
successors and assigns, agree as follows:
Parties adopt the foregoing Recitals and agree and affirm that the construction
of this Agreement shall be guided thereby.
OF COOPERATION AGREEMENT
to the provisions of Section 11.2 hereof pertaining to the continued force
effect of the Cooperation Agreement only as among the Dyadic Parties and not
TNO, as of the Effective Date the Cooperation Agreement is terminated and
without any further force or effect, and all rights and obligations of the
Dyadic Parties to TNO thereunder and all of the rights and obligations of TNO
the Dyadic Parties thereunder are cancelled in their entirety, including but
limited to (i) all of TNO's Royalty and Equity Interests, (ii) any obligation of
any of the Dyadic Parties to pay any Service Fees to TNO for past services
rendered by it to Dyadic NL, including but not limited to the Unpaid Service
Fees and (iii) the termination of the Original TNO License,
subject to TNO's grant to Dyadic NL of the Replacement TNO License pursuant to
the provisions of Article IV hereof.
and Sale of Shares. As
consideration to TNO for (i) the termination of the Cooperation Agreement and
grant to Dyadic NL of the Replacement TNO License upon the terms and conditions
of this Agreement, (ii) the extinguishment in their entirety of all of TNO's
Royalty and Equity Interests in Dyadic NL and Dyadic Parent, and (iii) the
payment in full by Dyadic NL of its liability to TNO for the Unpaid Service
Fees, Dyadic Parent does hereby sell to TNO\BV, and TNO\BV does hereby purchase
from Dyadic Parent, 161,560 fully paid and non-assessable shares of $.001
Stock of Dyadic Parent (heretofore and hereafter, the "Shares"),
the TNO Parties hereby accept the Shares, subject to the restrictions imposed
applicable US securities laws, as set forth in Section 3.3 hereof.
Parties' Securities Representations and Warranties.