Exhibit (d)(8)
Processed Tissue Development and License Agreement
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This Agreement is made by Tutogen Medical GmbH, a German corporation with
offices at ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇, ▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ am Brand, Germany ("Tutogen")
and Sulzer Calcitek Inc., a Delaware corporation with offices at ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇.▇.▇. ("Sulzer").
W I T N E S S E T H:
WHEREAS, Tutogen collects xenograft and donated allograft tissue from sources
throughout Europe and within the United States, processes such tissue itself or
provides such tissue for processing by others, and makes processed tissue
available to users through various distributors throughout the world;
WHEREAS, Sulzer manufactures and sells worldwide a line of products used in
dental applications and has agreed to provide certain services to assist Tutogen
in making processed allograft tissues available in the United States and has
agreed to distribute worldwide Tutogen's processed xenograft bone tissues for
use in dental applications;
WHEREAS, Tutogen and Sulzer desire to collaborate from time to time on the
development of processed tissues for dental applications; and
WHEREAS, Sulzer desires to obtain a license under Tutogen's intellectual
property currently in existence and hereafter developed, relating to processed
bone tissues in dental applications;
NOW, THEREFORE, in consideration of the foregoing premises and the terms and
conditions set forth below, the parties hereby agree as follows:
1. Definitions
1.1 "Affiliate" shall mean an entity that controls, is controlled by, or
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is under common control with a party. For purposes of this definition,
"control" shall mean the possession, directly or indirectly, of a
majority of the voting power of such entity (whether through ownership
of securities or partnership or other ownership interests, by contract
or otherwise); provided that, such entity shall be deemed an Affiliate
only so long as such control continues.
1.2 "Contract Year" shall mean the one-year period following the effective
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date of this Agreement and each one-year period following each
anniversary of the effective date of this Agreement.
1.3 "Effective Date" shall mean the date on which this Agreement has been
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executed by an authorized officer of each party, as witnessed on the
signature page of this Agreement.
1.4 "Ongoing Projects" shall have the meaning set forth in Section 2.1.
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1.5 "Permitted Successor" shall mean any individual, corporation,
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partnership, joint venture, association, trust, or any other entity or
organization of any kind or character that assumes the obligations of
a party under this Agreement as permitted according to the terms of
this Agreement.
CONFIDENTIAL
1.6 "Processed Tissues" shall mean all xenograft and allograft bone
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tissues processed by Tutogen or an Affiliate of Tutogen or a Permitted
Successor of Tutogen for use in and adjoining the human maxilla or the
human mandible.
1.7 "Third Party" shall mean a person or entity other than Tutogen, any
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Tutogen Affiliate, Sulzer, any Sulzer Affiliate or any officer,
director, or employee of Tutogen, any Tutogen Affiliate, Sulzer, or
any Sulzer Affiliate.
1.8 "Tutogen Intellectual Property" shall mean any and all intellectual
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property relating to the Processed Tissues, owned by or licensed to
Tutogen (to the extent that a sub-license granted by Tutogen pursuant
to this Agreement is permitted under the respective license granted to
Tutogen) as of the Effective Date or acquired during the term of this
Agreement, including but not limited to, all Tutogen Licensed Patents,
trademarks, copyrights, trade secrets, and know-how.
1.9 "Tutogen Licensed Patents" shall mean any and all patents relating to
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the Processed Tissues, owned by or licensed to Tutogen (to the extent
that a sub-license granted by Tutogen pursuant to this Agreement is
permitted under the respective license granted to Tutogen) as of the
Effective Date or acquired during the term of this Agreement, issued
in any country from patent applications filed prior to or during the
term of this Agreement, including all patents maturing from
continuations, continuations-in-part, and divisional applications or
reissues or reexaminations of such patents and patent applications,
and further including all patents which are foreign counterparts of
the foregoing patents and patent applications, regardless of whether
such patent matures from a convention or non-convention case, and any
other substitution, renewal, extension, addition, utility model, or
other patent, in any country, that claims priority based on such an
application.
2. New Processed Tissue Development and Existing Processed Tissue Improvement
2.1 Ongoing Projects. As of the Effective Date, Tutogen has certain
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ongoing projects relating to the development of new Processed Tissues
and to improvements to existing Processed Tissues (the "Ongoing
Projects"). Tutogen agrees to meet with Sulzer within 120 days
following the Effective Date and disclose to Sulzer the details of the
Ongoing Projects. Except as provided in Section 2.3.4, Tutogen shall
not disclose the Ongoing Projects to any Third Party, whether such
potential disclosure is during the term of this Agreement or after its
termination, except as provided in this Section 2.3.4.
2.2 New Ideas for Processed Tissues. During the term of this Agreement,
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the parties anticipate that each party will conceive ideas for new
Processed Tissues or for improvements to existing Processed Tissues.
If a party conceiving an idea for a new Processed Tissue or for an
improvement to an existing Processed Tissue wishes to pursue
development of that idea, it shall propose development of the idea, if
at all, solely to the other party. The parties shall not disclose
ideas for new Processed Tissues or for improvements to existing
Processed Tissues conceived during the term of this Agreement to any
Third Party, whether such potential disclosure is during the term of
this Agreement or after its termination, except as provided in this
Section 2.3.4.
CONFIDENTIAL Processed Tissue Development and License Agreement -- Page 2
2.3 Procedure for Evaluating Development Projects. A party (including
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Tutogen with respect to the Ongoing Projects) shall propose a
development project for an idea by submitting to the other party a
written description of the proposed new Processed Tissue or Processed
Tissue improvement.
2.3.1 The party receiving the proposal shall evaluate the proposal
and respond in writing to the proposing party within 30 days of
receipt of the proposal, either accepting or rejecting the
proposal.
2.3.2 The receiving party is under no obligation to accept the
proposal or otherwise to participate in any project proposed by
the other party.
2.3.3 If the receiving party accepts the proposal, the parties shall
meet and prepare a project plan, agreeing to a development
schedule and allocating project development responsibilities
and project costs between the parties. Project responsibilities
and costs may or may not be allocated equally between the
parties.
2.3.4 If the receiving party rejects the proposal, the proposing
party shall be free to pursue the project on its own or to
collaborate on the project with a Third Party; provided that,
in so doing the proposing party shall not violate or breach any
other term of this Agreement or any term of the U.S. Service
Agreement, between an Affiliate of Tutogen and Sulzer, or the
Xenograft Distribution Agreement, between Tutogen and Sulzer,
both of even date, or any subsequent amendments thereof.
2.4 Tissue Processing Rights. Tutogen shall have the right to process
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bone tissue for any Processed Tissue developed or improved as a result
of collaboration between the parties under this Section 2.
2.5 Relation to Other Agreements. Any Processed Tissue developed or
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improved as a result of collaboration between the parties under this
Section 2, to the extent that it embodies an allograft processed
tissue, shall become a "Processed Tissue" within the meaning of the
U.S. Service Agreement and, to the extent that it embodies a xenograft
processed tissue, shall become a "Product" within the meaning of the
Xenograft Distribution Agreement, both of even date between the
parties or their Affiliates.
3. License
3.2 3.1 License Grant. In consideration of the terms and conditions set
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forth herein, and subject to the right of Tutogen under license
agreements with Third Parties to grant sublicenses, Tutogen hereby
grants (and will cause its Affiliates to grant) to Sulzer and its
Affiliates during the term of this Agreement an exclusive, worldwide
(excluding the United States only as to allograft Processed Tissues),
fully paid-up license or sublicense, as the case may be, under all
Tutogen Intellectual Property to use and sell the Processed Tissues.
This license excludes the United States as to allograft Processed
Tissues because Sulzer will not make, use, sell, or offer to sell the
Processed Tissues in the United States.
CONFIDENTIAL Processed Tissue Development and License Agreement -- Page 3
4. Intellectual Property Rights
4.1 Jointly Developed Intellectual Property. Tutogen and Sulzer each shall
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own an undivided one-half interest in all jointly developed
intellectual property, including patent applications and patents as to
which employees of both parties are named as an inventor. Sulzer shall
have primary responsibility for filing and prosecuting patent
applications and maintaining patents on jointly developed and owned
inventions. Tutogen shall contribute one-half of all expenses incurred
in connection with such filing, prosecution, and maintenance; provided
that, Tutogen shall have no obligation to reimburse patent-related
expenses that it has not first approved. In the event that Tutogen
refuses to approve any such patent-related expenses and that Sulzer
elects to incur the expense itself, Sulzer shall be the sole owner of
any rights resulting therefrom. In the event that Sulzer elects not to
pursue patent protection for any jointly developed and owned
invention, Tutogen shall have the right, at its sole expense, to
pursue patent protection for the invention, and Tutogen shall be the
sole owner of any rights resulting therefrom.
4.2 Infringement of Jointly Owned Intellectual Property. In the event that
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a Third Party is infringing any jointly owned intellectual property,
Sulzer, at its option, shall have the right to bring and control any
litigation brought against such Third Party for such infringement, and
Tutogen shall cooperate with Sulzer. If Sulzer elects not to prosecute
such litigation, Tutogen shall have the right to bring and control
such litigation. Both parties shall share equally in the expenses and
proceeds of such litigation; provided that, if a party elects not to
contribute its share of the expenses of such litigation, it forfeits
any right to share in the proceeds of such litigation, but shall
nonetheless cooperate with the party prosecuting such litigation at
the reasonable expense of the prosecuting party.
5. Term and Termination
5.1 Term. This Agreement shall be effective on the Effective Date and
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shall remain in effect for an initial term of 10 Contract Years,
unless sooner terminated according to the terms set forth below. At
the end of the tenth Contract Year and each succeeding anniversary of
the Effective Date, this Agreement shall renew automatically for a
successive one-year term unless one party gives the other party
written notice of termination at least 12 months in advance of the
renewal date.
5.2 Material Breach. If either party is in material breach of any
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obligation in this Agreement, the non-breaching party may give written
notice to the breaching party of its intention to terminate this
Agreement, and this Agreement will terminate 60 days after the giving
of such notice unless during the 60-day period (i) the breach has been
cured, or (ii) if a breach is incapable of cure within the 60-day
period, the breaching party has commenced action which is calculated
to result in a cure of the breach to the reasonable satisfaction of
the non-breaching party within 120 days after the giving of notice. If
at the end of the 60-day or 120-day period following a notice of
termination the parties disagree as to whether the Agreement has
terminated as provided in this paragraph, the parties shall continue
to perform under this Agreement until an
CONFIDENTIAL Processed Tissue Development and License Agreement -- Page 4
arbitration tribunal constituted as provided in this Agreement has
ruled on the matter.
5.3 Insolvency. Either party may terminate this Agreement immediately on
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delivery of written notice to the other party (i) upon the institution
by or against such other party of insolvency, receivership, or
bankruptcy proceedings or any other proceedings for the settlement of
such party's debts; provided that, with respect to involuntary
proceedings, such proceedings are not dismissed within 120 days, (ii)
upon such other party's making an assignment for the benefit of
creditors, or (iii) upon such other party's dissolution or ceasing to
do business.
5.4 Termination Without Cause. Sulzer shall have the right to terminate
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this Agreement with or without cause at any time on or after January
15, 2002 provided that Sulzer shall have given Tutogen written notice
of termination at least 12 months in advance of the termination date.
Sulzer's notice of termination, if any, shall not relieve Sulzer of
the obligation thereafter to make the payment set forth in Section 3.2
above, and Sulzer's termination under this Section 5.4 does not give
Sulzer any right to recover payments made prior to the effective date
of termination.
6. Representations, Warranties, Indemnities and Liabilities
6.1 Tutogen. Tutogen represents and warrants to Sulzer, as follows:
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6.1.1 Tutogen has the corporate power and authority to execute and
deliver this Agreement and to perform its obligations
hereunder, and the execution, delivery and performance of this
Agreement have been validly authorized by Tutogen.
6.1.2 Tutogen has the right to grant to Sulzer the rights and
licenses granted in this Agreement.
6.2 Sulzer. Sulzer represents and warrants to Tutogen, as follows:
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6.2.1 Sulzer has the corporate power and authority to execute and
deliver this Agreement and to perform its obligations
hereunder, and the execution, delivery, and performance of this
Agreement have been validly authorized by Sulzer.
6.3 Indemnity by Tutogen.
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6.3.1 Tutogen shall defend, indemnify, and hold harmless Sulzer
against any liability or damages from any third party claims,
suits, proceedings, demands, recoveries, or expenses ("Claims")
to the extent that such Claims arise from or are based upon:
(i) material breach by Tutogen of any of its representations or
warranties contained herein; or (ii) negligence, gross
negligence, or intentionally wrongful acts or omissions on the
part of Tutogen; provided that Sulzer: (a) promptly notifies
Tutogen in writing of any such Claim which comes to its
attention; (b) allows Tutogen to control the defense or
settlement of such Claim; (c) does not enter into any
settlement or compromise of such Claim without the express
authorization of Tutogen; and (d) reasonably cooperates with
Tutogen in the defense of such Claim, subject to Tutogen's
payment of all reasonable out-of-pocket expenses
CONFIDENTIAL Processed Tissue Development and License Agreement -- Page 5
associated with such cooperation by Sulzer. Sulzer shall have
the right to participate in a non-controlling fashion in such
legal proceeding at its sole expense.
6.3.2 No undertaking of Tutogen under this section shall extend to
any such alleged infringement or violation to the extent that
it: (a) arises from adherence to design modifications,
specifications, drawings, or written instructions which Tutogen
is directed by Sulzer to follow, but only if such alleged
infringement or violation does not reside in corresponding
Processed Tissue of Tutogen's design or selection; or (b)
arises from adherence to instructions to apply Sulzer's
trademark, trade name, or other company identification; or (c)
resides in a Processed Tissue which is not of Tutogen's origin
and which is furnished by Sulzer to Tutogen for use under this
Agreement; or (d) relates to use of Processed Tissues or other
items provided by Tutogen in combination with other Processed
Tissues or items furnished either by Tutogen or others, which
combination was not installed, recommended, or otherwise
approved by Tutogen. In the foregoing cases numbered (a)
through (d), Sulzer will defend and hold Tutogen harmless,
subject to the same terms and conditions and exceptions stated
above, with respect to Tutogen's rights and obligations under
this clause.
6.4 Indemnity by Sulzer.
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6.4.1 Sulzer shall defend, indemnify, and hold harmless Tutogen
against any liability or damages from any third party claims,
suits, proceedings, demands, recoveries, or expenses ("Claims")
to the extent that such Claims arise from or are based upon:
(i) material breach by Sulzer of any of its representations or
warranties contained herein; or (ii) negligence, gross
negligence, or intentionally wrongful acts or omissions on the
part of Sulzer; provided that Tutogen: (a) promptly notifies
Sulzer in writing of any such Claim which comes to its
attention; (b) allows Sulzer to control the defense or
settlement of such Claim; (c) does not enter into any
settlement or compromise of such Claim without the express
authorization of Sulzer; and (d) reasonably cooperates with
Sulzer in the defense of such Claim, subject to Sulzer's
payment of all reasonable out-of-pocket expenses associated
with such cooperation by Tutogen. Tutogen shall have the right
to participate in a non-controlling fashion in such legal
proceeding at its sole expense.
6.4.2 No undertaking of Sulzer under this section shall extend to any
such alleged infringement or violation to the extent that it:
(a) arises from adherence to design modifications,
specifications, drawings, or written instructions which Sulzer
is directed by Tutogen to follow, but only if such alleged
infringement or violation does not reside in corresponding
Processed Tissue of Sulzer's design or selection; or (b) arises
from adherence to instructions to apply Tutogen's trademark,
trade name, or other company identification; or (c) resides in
a Processed Tissue which is not of Sulzer's origin and which is
furnished by Tutogen to Sulzer for use under this Agreement; or
(d) relates to use of Processed Tissues or other items provided
by Sulzer in combination with other Processed Tissues or other
items, furnished either by Sulzer or others,
CONFIDENTIAL Processed Tissue Development and License Agreement -- Page 6
which combination was not installed, recommended or otherwise
approved by Sulzer. In the foregoing cases numbered (a) through (d),
Tutogen will defend and hold Sulzer harmless, subject to the same
terms and conditions and exceptions stated above with respect to
Sulzer's rights and obligations under this clause.
6.5 Limitation of Liability to Third Parties. The liability of Tutogen and
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Sulzer with respect to any and all claims, actions, proceedings, or
suits by any third party alleging infringement of patents, trademarks,
or copyrights or violation of trade secrets or proprietary rights
because of, or in connection with, any items furnished pursuant to this
Agreement shall be limited to the specific undertakings contained in
this Section 6.
6.6 Exclusion of Consequential Damages. Neither Tutogen nor Sulzer shall in
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any event or under any circumstances, including, but not limited to
liability, delay, or warranty, be liable to the other for special or
consequential damages, including but not limited to, loss of profit or
revenue, loss of use of production line, or claims by customers for
service interruptions. The remedies for the parties set forth in this
Agreement are exclusive.
7. Miscellaneous Provisions
7.1 Entire Agreement.
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7.1.1 This Agreement, together with the U.S. Service Agreement and the
Xenograft Distribution Agreement, all between the parties or
their Affiliates, embodies the final, complete, and exclusive
understanding between the parties and supersedes all previous
agreements, understandings, or arrangements between the parties
with respect to its subject matter.
7.1.2 No modification or waiver of any terms or conditions hereof, nor
any representations or warranties will be of any force or effect
unless such modification or waiver is in writing and signed by an
authorized officer of the party against whom enforcement is
sought.
7.2 Force Majeure. Neither party will be liable to the other for its failure
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to perform any of its obligations under this Agreement only during any
period in which such performance is delayed because of, or rendered
impracticable or impossible due to, circumstances beyond its reasonable
control, including but not limited to, strike, fire, flood, earthquake,
windstorm, governmental acts or orders or restrictions (including acts
of regulatory authorities and changes in the regulatory scheme for a
Processed Tissue), failure of suppliers, or any other reason to the
extent that the failure to perform is beyond the reasonable control and
not caused by the negligence or willful misconduct of the non-performing
party, provided that the party experiencing the delay promptly notifies
the other of the delay.
7.3 Notices. All notices concerning this Agreement will be written in the
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English language and will be deemed to have been received (a) two days
after being properly sent by commercial overnight courier, or (b) one
day after being transmitted by confirmed facsimile, in each case
addressed to the address below:
CONFIDENTIAL Processed Tissue Development and License Agreement - Page 7
If to Tutogen:
Tutogen Medical GmbH
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇
▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ am Brand
GERMANY
Attention: President and CEO
Telephone: ▇▇ (▇▇▇▇) ▇▇ ▇▇ ▇▇▇
Facsimile: ▇▇ (▇▇▇▇) ▇▇ ▇▇ ▇▇▇
With a copy to:
▇▇. ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ + Rutow
▇▇▇▇▇▇▇▇. ▇▇-▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Telephone: ▇▇ (▇▇▇) ▇▇ ▇▇▇ ▇▇
Facsimile: ▇▇ (▇▇▇) ▇▇ ▇▇▇ ▇▇
If to Sulzer:
Sulzer Calcitek Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
▇.▇.▇.
Attention: President
Telephone: ▇ (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: ▇ (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Sulzer Medica USA Inc.
▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇.▇.▇.
Attention: General Counsel
Telephone: ▇ (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: ▇ (▇▇▇) ▇▇▇-▇▇▇▇
7.4 Governing Law. Recognizing that the laws within different international
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jurisdictions vary in their content and effect with respect to similar
subject matter, and that the parties desire uniformity and predictability
in interpretation and enforcement of this Agreement and related agreements
with international scope made contemporaneously by the parties and their
Affiliates, the parties have agreed to the following provisions regarding
applicable law to govern this Agreement: All matters affecting the
interpretation, form, validity, and performance of this Agreement shall be
decided under the laws of Switzerland. The United Nations Convention on
Contracts for the International Sale of Goods of April 11, 1980 shall not
be applicable.
CONFIDENTIAL Processed Tissue Development and License Agreement - Page 8
7.5 Partial Invalidity. In the event that any provision of this Agreement
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will be unenforceable or invalid under any applicable law or be so held by
applicable court decision, such unenforceability or invalidity will not
render this Agreement unenforceable or invalid as a whole, and, in such
event, such provision will be changed and interpreted so as best to
accomplish the objectives of such unenforceable or invalid provision within
the limits of the applicable law or applicable court decisions.
7.6 Independent Contractors. Each party will act as an independent
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contractor under the terms of this Agreement. Except as otherwise provided
in this Agreement, neither party is, nor will it be deemed to be, an
employee, agent, partner, co-venturer, or legal representative of the other
for any purpose.
7.7 Nonassignability. Neither this Agreement nor any of the rights,
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interests, duties, or obligations under this Agreement shall be assigned or
delegated, in whole or in part, by operation of law or otherwise by any
party without the prior written consent of the other party, except that
either party may assign this Agreement to an Affiliate of such party;
provided that, in no event shall a party assign to an Affiliate less than
the entirety of its rights and obligations under this Agreement. Any
assignment made in violation of this Section 7.7 will be void and of no
effect. Subject to this Section 7.7, this Agreement shall be binding upon,
inure to the benefit of, and be enforceable by and against, the parties and
their Permitted Successors.
7.8 Compliance With Laws. Notwithstanding any other provision in this
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Agreement regarding a failure to comply with laws, in performing this
Agreement, each Party shall comply with all applicable laws and government
regulations at all times, including but not limited to any applicable laws
and regulations of the United States regarding the export or re-export or
release of technology and technical data.
7.9 Arbitration.
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7.9.1 In the event the Parties are unable to resolve any dispute or
conflict arising from or relating to this Agreement within thirty
(30) days after it is formally presented for resolution by written
notice, any party may submit such conflict for resolution to the
Chief Executive Officers of the parties.
7.9.2 In the event the Chief Executive Officers of the parties are unable
to resolve such conflict within thirty (30) days after having such
conflict submitted to them for resolution, the disputes shall be
finally settled under the Rules of Conciliation and Arbitration of
the International Chamber of Commerce in Paris ("Rules") by three
arbitrators appointed in accordance with the Rules.
7.9.3 The place of arbitration shall be Zurich. The procedural law of
this place shall apply where the Rules are silent.
7.9.4 The arbitral award shall be substantiated in writing. The arbitral
tribunal shall decide on the matter of costs of the arbitration.
7.9.5 The language to be used in the arbitral proceedings shall be
English.
CONFIDENTIAL Processed Tissue Development and License Agreement - Page 9
7.10 Confidentiality. The parties acknowledge that by reason of their
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relationship hereunder, each has had and will continue to have access to
certain information and materials concerning the other's business, plans,
customers, technology, and/or Processed Tissues that is considered by a
party to be confidential ("Confidential Information") and of substantial
value to that party, which value would be impaired if such information were
disclosed to third parties. To the extent that such information is
considered confidential, the disclosing party will so indicate to the
receiving party, in the case of information in documentary or other
tangible form, by labeling it conspicuously as "CONFIDENTIAL" (or words of
similar import) and in the case of information conveyed verbally, by
identifying same in writing within ten days after the first verbal
disclosure. Each party agrees that it will not use in any way other than as
expressly authorized or contemplated under this Agreement, nor disclose to
any third party, any such Confidential Information revealed to it by the
other party, and will take reasonable precautions (and will cause its
Affiliates to take reasonable precautions) to protect the confidentiality
of such information and with no less restrictive precautions than it takes
to protect its own confidential information. Each party will disclose
Confidential Information only to those of its employees who have a need to
know such information. If Confidential Information is required to be
disclosed in response to an order by a court or other government body, or
if otherwise required to be disclosed by law, or if necessary to establish
the rights of a party under this Agreement, the receiving party shall use
reasonable efforts to provide the disclosing party with advance notice of
such required disclosure to give the disclosing party sufficient time to
seek a protective order or other protective measures, if any are available,
for such Confidential Information. "Confidential Information" does not
include information, materials, technical data or know-how which: (i) is
rightfully in the possession of the receiving party at the time of
disclosure as shown by the receiving party's files and records immediately
prior to the time of disclosure; (ii) prior to or after the time of
disclosure becomes part of the public knowledge or literature, not as a
result of any inaction or action of the receiving party; (iii) is
independently developed by a party without the use of any Confidential
Information of the other parties; (iv) is obtained from any third party who
is authorized to disclose such data and information without obligation of
confidentiality, or (v) is approved for release by the disclosing party.
This Section 7.10 shall survive termination of this Agreement for a period
of two years.
CONFIDENTIAL Processed Tissue Development and License Agreement - Page 10
7.11 Public Relations And Announcements. The parties shall agree upon and
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issue a press release upon the signing of this Agreement. No party shall
issue a press release or any other published statement that refers to
another party, its Affiliates or the other party's products without
first obtaining the agreement of such other party as to the form and
content of the statement, which approval shall be timely and not
unreasonably withheld.
In witness whereof, the parties have each caused this Agreement to be
signed and delivered by their duly authorized representatives on the dates set
forth below in duplicate, each of which will be treated for all purposes as an
original.
Tutogen Medical GmbH Sulzer Calcitek Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Managing Director President
Date: September 29, 2000 Date: September 29, 2000
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CONFIDENTIAL Processed Tissue Development and License Agreement - Page 11
