EXHIBIT 10.35
[EXECUTION COPY]
["****" indicates material omitted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential treatment.]
FIRST AMENDMENT TO OMNIBUS AGREEMENT
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This FIRST AMENDMENT, effective on the 31st day of March 1998 (the
"Effective Date") is made and entered into by and between The New York Blood
Center, Inc., a New York not-for-profit corporation, having an office at 000
Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx ("NYBC") and V.I. Technologies, Inc.
(formerly known as Melville Biologics, Inc.) a Delaware corporation having an
office at 000 Xxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000 ("VITEX").
WHEREAS, the parties have executed an Omnibus Agreement effective as of
October 26, 1995 (the "OMNIBUS AGREEMENT"); and
WHEREAS, the parties now desire to amend the OMNIBUS AGREEMENT.
NOW THEREFORE, in consideration of the mutual covenants herein contained
and other good and valuable consideration, the receipt of which is hereby
acknowledged, NYBC and VITEX mutually agree as follows:
1. Paragraph 1.1 shall be deleted and replaced with the following
provision:
1.1 "TRANSFUSION PLASMA AGREEMENT" shall mean the "Exclusive License
Agreement for Virally Inactivated Transfusion Plasma Products" between NYBC and
VITEX effective October 26, 1995 and any amendments thereto.
["****" indicates material omitted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential treatment.]
2. Paragraph 1.2 shall be deleted and replaced with the following
provision:
1.2 "FIBRIN SEALANT AGREEMENT" shall mean the "Exclusive License Agreement
for Virally Inactivated Fibrin Sealant/Thrombin Products" between NYBC and
VITEX, effective October 26, 1995 and any amendments thereto.
3. Paragraph 1.3 shall be deleted and replaced with the following
provision:
1.3 "CELLULAR AGREEMENT" shall mean the "Exclusive License Agreement for
Virally Inactivated Cellular Products" between NYBC and VITEX effective October
26, 1995 and any amendments thereto.
4. Paragraph 1.6 shall be deleted and replaced with the following
provision:
1.6 "EDISON AGREEMENT" shall mean the "Licensing Agreement" between NYBC,
VITEX and ************************** ("Edison") effective January 1, 1996 and
any amendments thereto.
5. Paragraph 1.7 shall be deleted and replaced with the following
provision:
1.7 "ALBERTA AGREEMENT" shall mean the "Agreement" between NYBC, VITEX,
the Alberta Research Council ("Alberta") and Synsorb Biotech, Inc. ("SBI")
effective May 6, 1994.
6. Paragraph 4.7 shall be deleted and replaced with the following
provision:
4.7 VITEX shall be responsible for making the payments to Edison required
by Paragraph 3.5 of the EDISON AGREEMENT (which paragraph relates to maintenance
of Edison's Patent Rights ) or reimbursing NYBC for any payments made by NYBC to
Edison under Paragraph 3.5 of the EDISON AGREEMENT.
7. Paragraphs 5.1 and 5.2 shall be deleted and replaced with the following
provisions:
5.1 For so long as the TRANSFUSION PLASMA AGREEMENT is in full force and
effect (i.e. has not been terminated by either party), NYBC agrees that it will
not grant a sublicense to any third party under the "ARC Background Patents"
licensed to NYBC under the ALBERTA AGREEMENT for PRODUCTS in the EXCLUSIVE
TERRITORY as those terms are defined in the TRANSFUSION PLASMA AGREEMENT.
5.2 VITEX shall be responsible for paying royalties to SBI pursuant to
Paragraphs 4.1 and 4.2 of the ALBERTA AGREEMENT for "Net Sales" of "NYBC
Products" sold by VITEX and "Net Sales" of "NYBC Products" sold by VITEX's
sublicensees (as those terms are defined in the ALBERTA AGREEMENT) and shall
reimburse NYBC for any such payments made by NYBC to SBI.
8. The following Paragraphs 5.3 and 5.4 shall be added:
5.3 NYBC shall be responsible for paying royalties to SBI pursuant to
Paragraphs 4.1 and 4.2 of the ALBERTA AGREEMENT for "Net Sales" of "NYBC
Products" sold by NYBC and "Net Sales" of "NYBC Products" sold by NYBC's
sublicensees (as those terms are defined in the ALBERTA AGREEMENT) and shall
reimburse VITEX for any such payments made by VITEX to SBI.
5.4 NYBC will not voluntarily terminate the ALBERTA AGREEMENT unless it
first receives the written consent to such termination by VITEX. VITEX will not
voluntarily terminate the ALBERTA AGREEMENT unless it first receives the written
consent to such termination by NYBC.
9. Except as expressly amended hereby, the provisions of the OMNIBUS
AGREEMENT remain unchanged and in full force and effect.
10. This FIRST AMENDMENT shall remain in full force and effect for the
term of the OMNIBUS AGREEMENT.
IN WITNESS WHEREOF, the parties hereto have caused this FIRST AMENDMENT to
be executed by their duly authorized representatives as of the Effective Date.
V.I. TECHNOLOGIES, INC. THE NEW YORK BLOOD CENTER, INC.
By By:
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Name: Name:
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Date: Date:
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[EXECUTION COPY]
SECOND AMENDMENT TO OMNIBUS AGREEMENT
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This SECOND AMENDMENT, effective on the 31st day of March 1998 (the
"Effective Date") is made and entered into by and between The New York Blood
Center, Inc., a New York not-for-profit corporation having an office at 000 Xxxx
00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("NYBC"), and V.I. Technologies, Inc.
(formerly known as Melville Biologics, Inc.) a Delaware corporation having an
office at 000 Xxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000 ("VITEX").
WHEREAS, the parties have executed an Omnibus Agreement effective as of
October 26, 1995 (the "OMNIBUS AGREEMENT") which is being amended by a First
Amendment (the "FIRST AMENDMENT") contemporaneously with this SECOND AMENDMENT ;
and
WHEREAS, the parties desire to enter into this SECOND AMENDMENT so as to
reflect current business opportunities available to VITEX in connection with a
Joint Development, Marketing and Distribution Agreement (the "JOINT DEVELOPMENT
AGREEMENT") with Pall Corporation, a New York corporation, having principal
offices at 0000 Xxxxxxxx Xxxx., Xxxx Xxxxx, Xxx Xxxx 00000 ("PALL CORPORATION"),
this SECOND AMENDMENT to remain in effect for the duration of the JOINT
DEVELOPMENT AGREEMENT (and any amendments thereto and extensions thereof) or the
term of the OMNIBUS AGREEMENT, whichever shall be shorter.
NOW THEREFORE, in consideration of the mutual covenants herein contained
and other good and valuable consideration, the receipt of which is hereby
acknowledged, NYBC and VITEX mutually agree as follows:
1. NYBC agrees that notwithstanding the provisions set forth in Section
7.5 of the OMNIBUS AGREEMENT, VITEX shall not have an obligation to assist NYBC
to acquire and NYBC shall not seek to acquire any rights in or with respect to
(i) any "Joint Patents" and "Joint Inventions" as such terms are defined in the
JOINT DEVELOPMENT AGREEMENT, and (ii) any intellectual property which includes
or incorporates any patents, patent applications, know-how, inventions, data,
processes, methods for manufacture or use, techniques or other intellectual
property, owned and/or controlled, by or licensed to or hereafter developed by
or for PALL CORPORATION, independently from VITEX.
2. NYBC agrees that, prior to exercising its termination rights set forth
in Section 13.1 of the OMNIBUS AGREEMENT, (i) it shall give PALL CORPORATION
notice of its intent to terminate simultaneously with the notice given to VITEX
under the terms of Section 13.1, which notice shall expressly describe the event
entitling NYBC to exercise its termination rights, and (ii) it shall not
terminate the OMNIBUS AGREEMENT as amended by the FIRST AMENDMENT and/or this
SECOND AMENDMENT if within sixty (60) days of receipt of such notice by PALL
CORPORATION, PALL CORPORATION cures the breach or eliminates the event or causes
VITEX to cure the breach or eliminate the event giving rise to NYBC's
termination rights, to the reasonable satisfaction of NYBC.
3. Notices to PALL CORPORATION shall be sent to:
PALL CORPORATION
0000 Xxxxxxxx Xxxx.
Xxxx Xxxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx
with a copy to:
Xxxxxx, Xxxxxxx & Xxxxxxx
Xxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. XxXxxxxxx, Esq.
4. Except as expressly amended hereby, the provisions of the OMNIBUS
AGREEMENT as amended by the FIRST AMENDMENT remain unchanged and in full force
and effect.
5. This SECOND AMENDMENT shall remain in full force and effect for (i)
the term of the JOINT DEVELOPMENT AGREEMENT (and any amendments thereto and
extensions thereof, provided a copy of same is provided to NYBC), or (ii) the
term of the OMNIBUS AGREEMENT as amended by the FIRST AMENDMENT, whichever is
shorter. Termination of this SECOND AMENDMENT shall not release either party
from any liability which at the time of termination had already accrued to the
other party or which thereafter may accrue in respect of any act or omission
prior to such termination.
IN WITNESS WHEREOF, the parties hereto have caused this SECOND AMENDMENT to
be executed by their duly authorized representatives as of the Effective Date.
V.I. TECHNOLOGIES, INC. THE NEW YORK BLOOD CENTER, INC.
By By:
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Name: Name:
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Date: Date:
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