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EXHIBIT 10.22
RESEARCH, COLLABORATION
AND
DISTRIBUTION AGREEMENT
This Agreement is made and entered into the 22nd day of December,
1997, by and between PerImmune, Inc., a Delaware corporation ("PERIMMUNE"),
maintaining an office at 0000 Xxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000-0000 and
Mentor Corporation, a Minnesota corporation ("MENTOR") maintaining an office at
0000 Xxxxxxxxx Xxxxxx, Xxxxx Xxxxxxx, XX 00000.
RECITALS
WHEREAS, PERIMMUNE has developed and refined a method of treating
urological diseases and cancer with a keyhole limpet hemocyanin composition and
is the owner of all rights to proprietary technical information and the U.S.
Patent (as defined herein) related thereto;
WHEREAS, PERIMMUNE has advised MENTOR that PERIMMUNE believes
that it can, within a period of three (3) years at a cost of approximately Three
Million Dollars ($3,000,000): (a) implement and complete a Phase III clinical
testing program for the use of the Product (as defined herein) to treat
refractory bladder cancer, as clinically defined in the PERIMMUNE Phase I/II
protocol and clinical results previously provided to MENTOR ("Refractory Bladder
Cancer"), and (b) submit an application for the use of such Product to the
United States Food and Drug Administration (the "FDA") for the treatment of
Refractory Bladder Cancer;
WHEREAS, PERIMMUNE and MENTOR desire to enter into an arrangement
pursuant to which MENTOR will fund the costs of implementing and carrying out
the program described in the preceding recital, and pay certain fees to
PERIMMUNE as agreed milestones in such program are attained, and PERIMMUNE will
grant to MENTOR on the terms and conditions set forth in this agreement the
exclusive worldwide right to market, sell and distribute the Product for the
Indicated Uses (as defined herein);
WHEREAS, PERIMMUNE and MENTOR agree that, despite the diligent
efforts of PERIMMUNE and MENTOR, there can be no assurance that the objectives
of the Project Development Activities or the Project Objective (each as defined
herein) will be attained or that the Project Development Activities will result
in commercial use of the Product for any one or more Indicated Uses.
NOW, THEREFORE, for and in consideration of the foregoing and the
mutual covenants and agreements contained herein, and certain other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
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ARTICLE I
DEFINITIONS
1.1. "Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling or controlled by, or under common control
with, such specified Person.
1.2. "Approvals" means, with respect to any governmental authority or
agency, any or all approvals, clearances, registrations, licenses,
authorizations, visas or permits required by such governmental authority or
agency in order to import, export, offer for sale, sell, market, manufacture,
have made or use the Product.
1.3. "Competitive Product" means any product constituted from KLH (as
defined herein) that is used in the Indicated Uses.
1.4. "Effective Date" means the date of this Agreement as set forth
above.
1.5. "Indicated Uses" means the use of the Product in all uro-genital
applications, including but not limited to use as an injectable
bio-pharmaceutical to treat cancer of the bladder and prostate gland and
interstitial cystitis.
1.6. "Improvements" means all modifications, variations and revisions
and new models or versions of the Product developed by the parties hereto which
relates or has consequence with respect to the Product in any of the following
ways: (1) improves the Product's performance; (2) reduces the cost of materials
or components for the Product; (3) reduces production, manufacturing or
associated costs of the Product; (4) increases the life, durability or
continuous performance characteristics of the Product; (5) expands the
applications to which the Product may be put; (6) increases or enhances the
marketability or commercial aspect of the Product; or (7) would, if implemented,
replace or displace the Product in one or more material commercial markets for
the Product. Improvements may be patentable or unpatentable, and if patentable,
need not be patented.
1.7. "Net Sales" means the gross invoiced price for the sale of Product
to purchasers by MENTOR, its agents or Affiliates less (a) any credits and
allowances granted by MENTOR to purchasers with respect to the Product,
including, without limitation, credits and allowances on account of price
adjustments, returns, discounts and chargebacks, (b) any sales, excise,
value-added, turnover or similar taxes, and (c) transportation, insurance and
handling expenses if separately invoiced and directly chargeable to such sales.
1.8. "Person" means any individual, corporation, partnership,
association, trust, estate or other entity or organization, including any
governmental entity or authority.
1.9. "Product" means the keyhole limpet hemocyanin composition ("KLH"),
as more particularly described in the PERIMMUNE Phase I/II protocol and the U.S.
Patent (as defined herein), and any Improvements thereto.
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1.10. "Product Patents" means any and all United States patents and
patent applications, all divisionals, continuations, continuations-in-part,
re-issues, extensions or foreign counterparts thereof, now or hereafter owned or
controlled ("controlled" being used in the sense of having the right to grant
licenses thereunder) by PERIMMUNE, covering the manufacture, use, sale, offer
for sale and/or importation of the Product, including but not limited to, the
U.S. Patent No. 5,407,912 attached hereto as Exhibit B.
1.11. "Project Budget" means the budget attached as Exhibit A to this
Agreement, setting forth the estimated costs of carrying out the Project
Development Activities.
1.12. "Project Development Activities" means the program implemented
pursuant to the provisions of this Agreement in order to accomplish the
following objectives in the following order of priority: (a) the implementation
and completion of Phase III clinical testing of the Product for use in the
treatment of Refractory Bladder Cancer; (b) the preparation and filing of an
application with the FDA on or before June 30, 2000, for the approval by the FDA
of the use of the Product for the treatment of Refractory Bladder Cancer; (c)
obtaining FDA approval for the use of the Product for the treatment of
Refractory Bladder Cancer; and (d) identifying and establishing contractual
relationships with sources of supply for raw materials required to manufacture
the Product.
1.13. "Project Objective" means the issuance of an approval by the FDA
for the use of the Product in the treatment of Refractory Bladder Cancer.
1.14. "Product Information" means, individually and collectively, all
manufacturing, analytical and marketing information and technical know-how,
trade secrets and inventions owned, controlled, conceived and/or reduced to
practice and/or acquired (i) by PERIMMUNE before the date of this Agreement, or
(ii) by PERIMMUNE or MENTOR or jointly by the parties during the Research and
Development Period, and directed to the Product, (whether or not relating to any
Indicated Use), including, but not limited to, specifications for ingredients
and formulations, information relating to regulatory and clinical work, testing
or studies, manufacturing methods and procedures.
1.15. "Project Plan" means the research and development plan attached
hereto as Exhibit A, including the budget, time-lines and milestones reflected
in such Exhibit for carrying out the Project Development Activities.
1.16. "Quality Specifications" means the quality specifications for the
Product agreed upon by the Joint Committee, as such quality specifications shall
be modified from time to time by mutual agreement of the parties hereto.
1.17. "Research and Development Period" means the period commencing on
the Effective Date and continuing until the first to occur of either of the
following events: (a) the attainment of the Project Objective or (b) a joint
determination by the parties hereto that the Project should be discontinued.
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1.18. Target Period" means a period of thirty-six (36) months, measured
from the Effective Date.
1.19. "Vial" means a vial containing the quantity of the product that is
the standard dosage for a single treatment, which the parties hereto believe is
likely to be a quantity between two (2) and ten (10) mg.
1.20. "U.S. Patent" means United States Patent No. 5,407,912 attached
hereto as Exhibit B.
ARTICLE II
RESEARCH AND DEVELOPMENT
2.1. Joint Committee. Promptly upon execution of the Agreement,
PERIMMUNE and MENTOR shall form a Joint Research and Development Committee (the
"Joint Committee") comprising six (6) members for the purposes of implementing
and revising the Project Plan and coordinating the Project Development
Activities to be conducted by the Project Teams. Three members of the Joint
Committee (and their successors or replacements, if any) shall be appointed by
PERIMMUNE and three members (and their successors or replacements, if any) shall
be approved by MENTOR. All actions of the Joint Committee shall be by a majority
vote of all members.
2.2. Project Teams. In order to carry out its respective obligations
relating to the Project Development Activities, each of PERIMMUNE and MENTOR
shall assign a defined team of employees to perform the Project Development
Activities (each such team, a "Project Team" and, together, the "Project
Teams"). The initial PERIMMUNE Project Team shall comprise the individuals
listed on Exhibit C attached hereto and the research technicians under each of
their direction and control. The initial MENTOR Project Team shall comprise the
individuals listed on Exhibit D attached hereto and the research technicians
under each of their direction and control. PERIMMUNE and MENTOR each agree to
notify the other party of any change in the personnel comprising such party's
Project Team, which changes shall remain in the sole discretion of such party.
2.3. Project Development. PERIMMUNE will exercise due diligence in
carrying out the Project Development Activities at the time and in the manner
contemplated by the Project Plan, and endeavoring to achieve the Project
Objective. Each party shall furnish to the other materials, data, software,
specification, formulas or other information as may, in the sole judgment of the
Joint Committee, be reasonably necessary for the recipient of such information
to perform its Project Development Activities or other duties hereunder. Towards
this end, the PERIMMUNE Project Team shall periodically (which, in any event,
shall be at least once every calendar quarter) during the Research and
Development Period, provide to the MENTOR Project Team a written progress report
in form and substance established by the Joint Committee concerning the Project
Development Activities being conducted by the PERIMMUNE Project Team, which
report shall include a summary of the progress of the Project Development
Activities in relation to the then current Project Budget that has been approved
by the Joint Committee. Information relating to the Product provided to a party
hereunder shall be governed
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by Section 10.1. The parties agree that, despite the diligent efforts of the
parties, there can be no assurance that the objectives of the Project
Development Activities or the Project Objective will be attained or that the
Project Development Activities will result in commercial use of the Product for
any one or more Indicated Uses.
2.4. Compliance with Regulations. All activities, studies or other
efforts in furtherance of the Project Development Activities shall be carried
out pursuant to the Project Plan in strict compliance with any applicable United
States Federal, state or local laws, regulations or guidelines governing the
conduct of such activities, studies or efforts.
2.5. Project Development Costs. The costs and expense of the Project
Development Activities shall be borne and paid by the parties as follows:
2.5.1. Costs Payable by MENTOR. MENTOR shall pay (a) all
reasonable costs associated with the Project Development Activities as
reflected in the Project Budget, to the extent that such costs do not
exceed the sum of $3,000,000, plus (b) the costs of any additional work
requested by MENTOR that is not within the scope of the Project
Development Activities (e.g., preparing applications for Approvals of
the Product for additional Indicated Uses or for jurisdictions other
than the United States) and (c) the costs of carrying out additional
clinical testing or other work required by the FDA after the submission
of the application for Approval for the use of the Product to treat
Refractory Bladder Cancer, to the extent that such additional testing or
other work was not reasonably within the scope of or contemplated by the
Project Development Activities described in the Project Plan.
2.5.2. Costs Payable by PERIMMUNE. Subject to the obligations of
MENTOR set forth in Section 2.5.1, above, PERIMMUNE shall be responsible
for and shall pay all costs of the Project Development Activities to the
extent such costs exceed $3,000,000, including the costs that would
customarily be incurred by a manufacturer in the ordinary course of
business for the purpose of submitting an application for pre-marketing
approval to the FDA and prosecuting such application to completion and
the issuance of the Approval applied for.
2.5.3. Time and Manner of Payment. All amounts payable by MENTOR
to PERIMMUNE pursuant to this Section 2.5 shall be payable in advance by
wire transfer of same day funds on a quarterly basis. MENTOR shall pay
the estimated costs of the Project Development Activities for the period
beginning on the Effective Date of this Agreement and ending on March
31, 1998 concurrently with its execution of this Agreement. Thereafter,
MENTOR shall pay the estimated costs of the Project Development
Activities for the next calendar quarter within ten (10) days after the
start of such calendar quarter unless MENTOR is entitled to delay or
suspend the next quarterly payment as provided by Section 2.5.6 of this
Agreement. Amounts not expended during any quarter or year shall be
carried forward to succeeding periods, it being intended that
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(a) MENTOR shall be obligated to expend $3,000,000 during the Target
Period or until the Project Objective is attained, whichever occurs
first, and (b) any amounts up to $3,000,000 remaining unexpended after
the attainment of the Project Objective, shall be paid to PERIMMUNE as
an additional fee.
2.5.4. Limitation on Obligation. Except as expressly provided by
Section 2.5.1, above, MENTOR shall not be obligated to pay more than
$3,000,000 of the costs of the Project Development Activities, and
PERIMMUNE shall pay all costs and expenses in excess of such amount.
2.5.5. Use of Funds. PERIMMUNE shall use the funds paid by
MENTOR pursuant to Section 2.5.3, above, only for the payment of the
costs and expenses of the Project Development Activities. No portion of
any such funds shall be used (a) for the payment of PERIMMUNE's overhead
or general and administrative expenses, except to the extent that such
expenses have been properly allocated to the Project Development
Activities at the same rate at which such expenses are allocated to all
other projects and corporate activities of PERIMMUNE, or (b) for the
acquisition of capital equipment or other tangible personal property
having a useful life in excess of three (3) years.
2.5.6. Right of MENTOR to Suspend Payment. PERIMMUNE shall
provide to MENTOR from time to time such information as MENTOR may
reasonably request for the purpose of demonstrating that there are
sufficient funds remaining in the Project Budget and available to
PERIMMUNE to complete the Project Development Activities. MENTOR shall
be entitled to suspend payment of costs associated with the Project
Development Activities if (a) PERIMMUNE fails to submit the quarterly
report called for by Section 2.3 of this Agreement, or (b) any such
report evidences that (i) PERIMMUNE is not carrying out the Project
Development Activities in accordance with the terms and within the
period of time established by the Project Plan, or (ii) in MENTOR's
reasonable judgment, there will be insufficient funds available in the
Project Budget to attain the Project Objective within the Target Period.
Should MENTOR become entitled to suspend payments to PERIMMUNE
hereunder, then MENTOR shall not be required to resume payments until
PERIMMUNE has taken the corrective action necessary to eliminate the
cause of such suspension in payments.
ARTICLE III
DEVELOPMENT FEES PAYABLE TO PERIMMUNE
3.1. Payment Schedule. In addition to funding the cost of the Project
Development Activities provided in Section 2.5, MENTOR shall pay to PERIMMUNE as
a research and development fee, an aggregate amount equal to Three Million
Dollars ($3,000,000), payable upon the occurrence of the following events (each,
a "Milestone Event" and the payment in respect of each Milestone Event, a
"Milestone Payment"): (i) One Million Dollars ($1,000,000)
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upon the enrollment of the first patient in Phase III clinical trials under
protocols accepted by the United States Food and Drug Administration ("FDA") for
use of the Product for an Indicated Use, (ii) One Million Dollars ($1,000,000)
upon the enrollment of the last patient in such Phase III clinical trials, and
(iii) One Million Dollars ($1,000,000) upon obtaining FDA approval to market and
sell the Product for an Indicated Use.
3.2. Manner of Payment. PERIMMUNE shall provide to MENTOR written notice
of the satisfaction of each Milestone Event. Promptly upon receipt of such
written notice, and, in any event within five (5) days, thereafter, MENTOR shall
pay to PERIMMUNE, by wire transfer of same day funds, the Milestone Payment in
respect of such Milestone Event.
ARTICLE IV
OWNERSHIP OF INVENTIONS AND PATENTS
4.1. Ownership of Information. All Product Information is, or shall be,
owned solely by PERIMMUNE. Other than as may be set forth herein, MENTOR shall
have no rights in or to any Project Information.
4.2. License. PERIMMUNE hereby grants MENTOR a world-wide, royalty-free,
perpetual, non-exclusive license in the Product Information, the Product Patents
and the Approvals to make, use and sell the Product for use in the Indicated
Uses without any further duty or obligation to PERIMMUNE. MENTOR covenants that
it shall not exercise such license except upon the occurrence of one or more of
the circumstances set forth in Section 7.4(i), 7.4(ii), 7.4(iii) or 7.4(iv).
4.3. Ownership of Product Patents and Improvements. PERIMMUNE shall have
sole and exclusive ownership of the Product Patents and of any Improvements
(whether patentable or unpatentable) made or discovered by PERIMMUNE or MENTOR
separately or by the parties jointly. PERIMMUNE shall be responsible for the
preparation, filing and prosecution of Product Patents as well as all costs and
fees associated therewith. PERIMMUNE shall apply for, seek prompt issuance of
and maintain during the terms of this Agreement the Product Patents in all
jurisdictions where patent protection is available and where, in PERIMMUNE's
judgment, such patent protection is necessary or advisable given plans for
marketing the Product for one or more of the Indicated Uses. The preparation,
prosecution and maintenance of all Product Patents shall be the primary
responsibility of PERIMMUNE; provided however, that MENTOR shall be afforded
reasonable opportunities to advise PERIMMUNE and shall cooperate with PERIMMUNE
in such preparation, prosecution and maintenance. PERIMMUNE shall promptly
advise MENTOR of the grant, lapse, revocation, surrender, or any threatened
invalidation or of its intention to abandon any such patent, application or
foreign counterpart.
4.4. Infringement of Product Patents. PERIMMUNE and MENTOR shall each
promptly notify the other of any infringement of any Product Patent in any
jurisdiction which may come to its attention. PERIMMUNE shall promptly undertake
reasonable efforts to obtain a discontinuance of the aforesaid infringement or
unauthorized use. Any suit to obtain such discontinuance shall be brought by
PERIMMUNE in its name unless the law of the relevant forum requires otherwise.
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ARTICLE V
REGULATORY AFFAIRS
5.1. Approvals. PERIMMUNE shall hold the biological license application
("BLA") and all other Approvals for the Product.
5.2. Assistance in Gaining Approvals. PERIMMUNE shall exercise due
diligence in attempting to obtain and in maintaining in full force and effect
the Approval for the marketing and sale of the Product in the United States for
the treatment of Refractory Bladder Cancer. At MENTOR's request, PERIMMUNE shall
exercise due diligence in attempting to obtain and in maintaining in full force
and effect the Approvals for the marketing and sale of the Product (i) for
Indicated Uses other than Refractory Bladder Cancer in the United States and
(ii) for Indicated Uses in Canada, the member states of the European Community,
and in each other jurisdiction in which MENTOR desires to market and sell the
Product for the Indicated Uses, provided that, in each case, MENTOR shall bear
all costs, fees and other expenses required to be paid to regulatory authorities
for the purpose of applying for, obtaining or preserving such Approvals,
provided further that, in each case, if any application or submission required
to gain such Approvals requires additional clinical tests or data beyond the
clinical tests and data that are produced during the clinical tests required to
gain Approval for the marketing and sale of the Product in the United States,
MENTOR shall bear all costs of conducting additional clinical tests and
obtaining such additional clinical data, and provided further that, in each
case, MENTOR shall, at no charge to PERIMMUNE, provide reasonable assistance to
PERIMMUNE in making such applications, submissions or filings as may be required
or advisable to obtain such Approvals. Notwithstanding anything else herein to
the contrary, PERIMMUNE shall not be required to attempt to obtain any Approval
for the marketing or sale of the Product for Indicated Uses in any jurisdiction
if, in the reasonable judgment of PERIMMUNE, such efforts separably or in the
aggregate would affect PERIMMUNE's ability to attain the Project Objective.
5.3. Notice of Reports to Government Authorities. Each party shall
promptly notify the other party of any information coming to its attention
concerning experience with any Product for which records and reports are filed
with any governmental authority, but shall not be liable for any intentional
failure to do so.
ARTICLE VI
DISTRIBUTION
6.1. Appointment and Acceptance. PERIMMUNE hereby appoints MENTOR as its
exclusive worldwide distributor of the Product for the Indicated Uses during the
term of this Agreement and MENTOR agrees to act in this capacity, all subject to
the terms and conditions of this Agreement. During the term of this Agreement,
(a) neither PERIMMUNE nor any of its Affiliates shall market or distribute the
Product for use in the Indicated Uses, (b) PERIMMUNE shall not license any other
Person to market or distribute the Product for use in the Indicated Uses, (c)
PERIMMUNE shall not supply to any person other than MENTOR and its Affiliates
Product that indicates on its label or in any product information sheet or other
packaging accompanying the Product that the Product is suitable for use in the
Indicated Uses, and (d)
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PERIMMUNE shall not knowingly sell the Product to persons whom PERIMMUNE knows
or has reason to know will use the Product in the Indicated Uses or will
distribute or re-sell the Product for such uses.
6.2. Terms of Sale.
(a) MENTOR shall purchase its requirements for the Product during
the term of this Agreement solely from PERIMMUNE for a purchase price to be
calculated as set forth herein and PERIMMUNE shall use all reasonable best
efforts to supply all such requirements.
(b) Within thirty (30) days from the date of invoice for any
Product sold to MENTOR, MENTOR shall pay to PERIMMUNE an amount equal to Thirty
Dollars ($30) per Vial of the Product (such amount, the "Advance").
Additionally, within thirty (30) days of the close of each calendar quarter in
which MENTOR has purchased Product from PERIMMUNE pursuant hereto, MENTOR shall
pay to PERIMMUNE an amount equal to (i) thirty percent (30%) of MENTOR's
aggregate Net Sales (as defined herein) from the Product during the calendar
quarter (the "Percentage Sales Amount") less (ii) the aggregate amount equal to
(A) the number of Vials sold during such calendar quarter for which MENTOR has
paid to PERIMMUNE an Advance, multiplied by, (B) the Advance amount (such
aggregate amount, the "Quarterly Advance Amount"). In the event that the
Quarterly Advance Amount in respect of any calendar quarter shall exceed the
Percentage Sales Amount for such calendar quarter, then the amount payable to
PERIMMUNE pursuant to the preceding sentence shall be zero. Unless MENTOR and
PERIMMUNE otherwise agree in a writing signed by both of them, the payment and
other provisions set forth in this Agreement shall supersede those of any
subsequent purchase order, sales confirmation form or other document hereafter
sent by either party hereto to the other.
(c) Within thirty (30) days after the end of each calendar quarter
in which MENTOR has purchased any Product from PERIMMUNE, MENTOR shall submit a
report to PERIMMUNE certified by a financial officer of MENTOR and setting
forth, with respect to such calendar quarter, (i) the aggregate number of Vials
of Product purchased from PERIMMUNE, (ii) the aggregate number of Vials of
Product sold by MENTOR, (iii) 30% of MENTOR's aggregate Net Sales from the
Product and (iv) the aggregate Advances paid by MENTOR to PERIMMUNE with respect
to the Vials of the Product sold by MENTOR. Upon thirty (30) days notice to
MENTOR, PERIMMUNE shall have the right to examine the applicable books and
records of MENTOR in order to verify the payments made to PERIMMUNE pursuant to
Section 6.2(b) above. In the event that any such examination reveals that the
amount of such payments owed to PERIMMUNE for any calendar quarter shall be
different than the amount certified to PERIMMUNE with respect to such calendar
quarter and paid to PERIMMUNE pursuant to Section 6.2(b), then, any shortfall
shall promptly be paid to PERIMMUNE and, alternatively, any overpayment shall
promptly be re-paid to MENTOR, in each case, without interest on such payment.
For purposes of this Section 6.2(c), MENTOR shall maintain such books and
records for not less than three years after the relevant date.
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(d) Title and risk of loss with respect to the Product sold by
PERIMMUNE to MENTOR shall pass to MENTOR upon release of Product for shipment by
PERIMMUNE to the designated carrier. MENTOR shall specify the method of shipment
and insurance and all freight and applicable insurance charges shall be the
responsibility of MENTOR. PERIMMUNE will be responsible for contracting freight
services specified by MENTOR, for which MENTOR will be billed on a
shipment-by-shipment basis. The Product is subject to inspection and acceptance
by MENTOR upon receipt. MENTOR shall be deemed to have accepted each shipment of
the Product unless rejected for nonconformity with the Quality Specifications
(as defined herein) in accordance with Section 6.5 of this Agreement, within
twenty (20) working days after receipt of shipments from PERIMMUNE.
(e) Unless approved by MENTOR in writing, PERIMMUNE will not sell
any Product to MENTOR that has a shelf-life from the date of shipment by
PERIMMUNE that is less than the greater of (a) twelve (12) months or (b) such
longer period for which PERIMMUNE has obtained stability approval from the FDA.
6.3. MENTOR's Duties. MENTOR shall:
(a) use best commercial efforts to advertise and promote the sale
of the Product in a manner calculated by MENTOR to yield benefit to the parties
hereto. MENTOR agrees that during the term of this Agreement, it will not market
any Competitive Product.
(b) submit its purchase orders to PERIMMUNE in writing or via
facsimile, signed by an authorized representative of MENTOR.
(c) pay all PERIMMUNE invoices in United States currency by company
check or by electronic wire transfer to an account designated by PERIMMUNE.
(d) submit to PERIMMUNE a twelve (12) month forecast of purchases
of Product from PERIMMUNE and delivery dates for such Product, which forecast
shall not constitute a firm purchase commitment, in a format to be mutually
determined by the parties. Said forecast shall be submitted by MENTOR to
PERIMMUNE within thirty (30) days after gaining FDA approval for use in the
Indicated Uses, and quarterly thereafter. MENTOR shall place firm orders from
time to time for the purchase of the Product at least ninety (90) days in
advance of required delivery.
(e) obtain advance written authorization and a Returned Material
Authorization ("RMA") prior to returning any of the Product.
(f) maintain a properly trained sales force of adequate size to
represent and promote the sale of the Product and provide instructions to
customers in the use of the Product. MENTOR shall be responsible for developing
its own marketing plan and system for dispensing the Product.
(g) carry in stock an inventory of the Product sufficient to
promptly fill the orders of MENTOR's customers.
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(h) pay any import duty or like charge on the entry of the Product
into any jurisdiction and any local or other applicable taxes.
(i) maintain separate and detailed accurate and complete records of
all transactions in respect of the Product, including, but not limited to, such
records as identify all customer purchases by Product and serial and/or lot
number, and possess the capability to notify all purchasers in the event of a
Product recall or corrective action.
(j) defray all expenses of and incidental to the distribution and
sale of the Product hereunder incurred by MENTOR.
(k) make no contracts or commitments on behalf of PERIMMUNE or make
any promises or representations or give any warranties or guarantees with
respect to the Product except as herein expressly permitted or otherwise incur
any liability on behalf of PERIMMUNE without PERIMMUNE's prior written consent,
nor represent itself as agent or partner of PERIMMUNE.
(1) comply with all laws and regulations and requirements
applicable to a seller of bio-pharmaceutical products, and with all laws and
regulations and requirements of governmental agencies in any jurisdiction in
which it markets, distributes or sells the Product.
(m) except as authorized in writing by PERIMMUNE, refrain
absolutely from using the trademark or trade name and logo of PERIMMUNE in
connection with the marketing, distribution and sale of any Product.
6.4. PERIMMUNE's Duties. PERIMMUNE shall:
(a) make reasonable best efforts, in good faith, to deliver
MENTOR's firm orders for the Product within ninety (90) days from date of order
receipt, provided that if PERIMMUNE is unable to deliver such firm orders within
such ninety (90) day period, PERIMMUNE will give priority to the delivery of the
Product to MENTOR to deliver such firm order, over the delivery of the Product
to any other purchaser or distributor, until such firm orders are filled. MENTOR
shall specify the method of shipment and insurance and PERIMMUNE shall make
reasonable best efforts, in good faith, to comply with such specifications. If
no such specification is made, or if the specification cannot be reasonably
complied with after notice to MENTOR and an opportunity to resolve the issues
surrounding PERIMMUNE's alleged inability to comply, PERIMMUNE may select a
reasonable manner of shipment and insurance, the cost of which shall be the
responsibility of MENTOR as provided in Section 6.2(d).
(b) afford all purchase orders for the Product received from MENTOR
equal priority with PERIMMUNE's own supply requirements for (a) products that
PERIMMUNE distributes for its own account and (b) orders from distributors of
other products manufactured by or for PERIMMUNE. PERIMMUNE will ship all orders
for the Product and for other products manufactured by or for PERIMMUNE in the
priority in which such orders were received.
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(c) provide such amount of Product as MENTOR reasonably requests
for use by MENTOR for promotional purposes, to MENTOR, at PERIMMUNE's cost plus
shipping charges.
(d) comply with all laws and regulations and requirements
applicable to PERIMMUNE as a manufacturer of bio-pharmaceutical products.
(e) except as authorized in writing by MENTOR, refrain absolutely
from using the trademark or trade name and logo of MENTOR in connection with the
marketing, distribution and sale of any Product.
(f) supply the Product to MENTOR in Vials, pre-labeled with labels
of a design provided by MENTOR. MENTOR shall supply PERIMMUNE with camera-ready
artwork for such labels.
(g) provide reasonable technical assistance to MENTOR's personnel
necessary for the marketing of the Product.
(h) at PERIMMUNE's expense, provide MENTOR with written product
inserts relating to the Product's use, and with such amendments thereto as
subsequently become available.
(i) provide necessary documentation to assist MENTOR in meeting
requirements to register the Product in any jurisdiction where MENTOR reasonably
expects to market the product for sale, and, where possible, allow MENTOR to
utilize prior registrations by PERIMMUNE.
(j) provide MENTOR with copies of the BLA pre-market notifications
submitted for the Product, copies of current package inserts for the Product,
copies of documents describing specifications for the Product, and copies of all
current and future correspondence with the FDA pertaining to the Product for any
Indicated Use. PERIMMUNE will comply with the FDA's current good manufacturing
practices and regulations ("GMP") in the manufacture of the Product. If needed
to comply with any change in the law or FDA's GMP regulations or policies, or to
enable MENTOR to market and distribute the Product in any jurisdiction MENTOR
shall have the right to inspect PERIMMUNE's manufacturing facilities and GMP
records pertaining to the manufacture of the Product. If any action should be
taken by the FDA to restrict or prevent the distribution of the Product for any
Indicated Use for more than thirty (30) days, and such restriction is not due to
the negligence of MENTOR, then upon notice to PERIMMUNE, MENTOR shall have the
right to terminate this Agreement as to such use or uses of the Product.
PERIMMUNE shall replace any affected inventory of Product under this section or
refund to MENTOR the purchase price it paid to PERIMMUNE for such inventory if
PERIMMUNE is unable to replace the Product with comparable inventory. PERIMMUNE
shall replace or repurchase any affected inventory of Product which MENTOR
replaces or repurchases from MENTOR's customers, at the price MENTOR paid
PERIMMUNE for such inventory. IN NO CASE SHALL PERIMMUNE BE LIABLE FOR
CONSEQUENTIAL OR INCIDENTAL DAMAGES.
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(k) comply with the United States Food, Drug and Cosmetic Act. The
Product comprising each shipment or other delivery hereafter made by PERIMMUNE
to, or on the order of, MENTOR, as of the date of such shipment or delivery,
shall not, on such date be, adulterated or misbranded within the meaning of the
United States Food, Drug, and Cosmetic Act.
(l) use raw materials that comply with any applicable raw material
specification guidance documents promulgated by the FDA.
(m) use manufacturing procedures that comply with all applicable
GMP standards.
(n) provide MENTOR with Product that is suitable for use for its
intended purpose.
(o) issue an RMA to MENTOR promptly upon its receipt of a request
therefor, unless a reasonable basis exists for denying such request, it being
understood by the parties hereto that, the failure of MENTOR to reject a Product
within twenty (20) working days of receipt of the Product shall not constitute a
reasonable basis for denying such request.
(p) (i) consult with MENTOR regarding proposed changes to the
Product and/or the adaptation of the Product for additional applications within
the Indicated Uses, (ii) make such Improvements to the Product as may be
reasonably necessary to meet the needs of the market and to keep the Product
current and commercially acceptable, and (iii) make reasonable efforts
consistent with its available resources and its other contractual commitments
and business objectives to incorporate into the Product any features or
Improvements that are recommended by MENTOR as the result of its clinical
studies and its marketing and customer support activities, to the extent that
such Improvements are technically and economically feasible. MENTOR shall pay a
reasonable consulting fee and reasonable costs incurred by PERIMMUNE, in each
case, in an amount mutually agreeable to the parties, in connection with any
research or development activities that PERIMMUNE undertakes at the request of
MENTOR pursuant to this Section 6.4(p).
(q) if MENTOR exercises its right to terminate this Agreement
pursuant to Section 7.2.1, take reasonable steps, consistent with the orderly
termination of the Project, to reduce or eliminate as soon as reasonably
practicable the costs for which MENTOR will continue to be responsible under
Section 7.2 of this Agreement, to the extent that PERIMMUNE can do so without
breaching existing contractual obligations or otherwise incurring liability for
wrongful conduct.
6.5. Performance Standards.
(a) Quality Specifications and Characteristics. PERIMMUNE shall
deliver to MENTOR Product having the Quality Specifications.
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(b) Certificate of Analysis. Concurrent with shipment, PERIMMUNE
shall fax to MENTOR a Certificate of Analysis, in the form set forth in Exhibit
E hereto, of each lot of Product sold to MENTOR, confirming that the Product
meets the Quality Specifications.
(c) Product Acceptance. Within twenty (20) working days of receipt
of Product, MENTOR shall take and conduct analysis of sample of the Product
delivered by PERIMMUNE. Should the result of an analysis of such sample deviate
from the Quality Specifications, MENTOR shall notify PERIMMUNE in accordance
with Section 10.2 hereof and immediately thereafter provide PERIMMUNE with
samples of the Product tested. If, following a review of the test result and
after conducting its own tests of the sample, PERIMMUNE agrees that such sample
does not conform to the Quality Specifications, PERIMMUNE shall provide to
MENTOR, free of any additional charge, new deliveries of the same quantity of
the Product as the one from which the sample was taken, or in PERIMMUNE's
discretion and at its cost, PERIMMUNE may promptly reprocess the nonconforming
Product to meet the Quality Specifications. In either event, MENTOR shall
return, at PERIMMUNE's expense, the particular lot or shipment of the Product
which does not comply with the Quality Specifications if requested to do so by
PERIMMUNE.
6.6. Product Recall.
(a) Either party shall immediately notify the other party in
writing should it become aware of any defect or condition that renders any
lot(s) of Product supplied by PERIMMUNE to MENTOR in violation of the United
States Food, Drug and Cosmetic Act, or of a similar law of any jurisdiction or
country where the Product is sold. Should either party experience any quality
problem involving field correction or recall of any specific lot(s) of Product
supplied to MENTOR by PERIMMUNE, such party shall notify the other in writing by
facsimile within twenty-four (24) hours of the initiation of the field
correction or recall. Each party will test retained samples of lots in question
and report its findings to the other within ten (10) working days.
(b) Each party shall keep the other informed of any formal action
relating to any specific lot of Product sold to MENTOR hereunder by a regulatory
agency of any state, national government, or government agency having
jurisdiction.
(c) Should any governmental action or other circumstances require
the recall or field corrections or withholding from market of Product sold by
PERIMMUNE to MENTOR, each party retains the right and obligation to correct
field problems arising out of its fault or omission as it deems appropriate,
with or without the concurrence of the other. All information about complaints
concerning the Product shall be considered "Confidential Information" under the
terms of this Agreement. MENTOR shall bear all costs of complying or effecting
any recall or field correction, including the cost of the Product and the actual
costs of replacing the Product, that is the result of any fault or omission
attributable to MENTOR. PERIMMUNE shall bear all costs of complying or effecting
any recall or field correction, including the cost of the Product and the actual
costs of replacing the Product, that (i) is the result of any fault or omission
attributable to PERIMMUNE or (ii) results from the fault of neither party.
Should such recall or
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field correction result from the fault of both parties, the parties shall share
all costs of complying or effecting any recall or field correction, including
the costs of the Product and the actual cost of replacing the Product, in
proportion to their respective degree of fault.
6.7. Product Complaints.
(a) PERIMMUNE shall maintain an appropriate record of all claims
made or to be made regarding the Product's performance. The parties shall share
with each other all data on confirmed lot-specific Product complaints including,
but not limited to, complaints or information regarding performance and/or
allegations or reports of any negative effect from the use or misuse of such
affected lot of Product as soon as such data is available. Each party will
provide reasonable assistance to the other in resolving customer complaints to
the extent the complaint arises out of any fault or omission of the party whose
assistance is requested. However, MENTOR shall have sole responsibility and
authority to interact directly with MENTOR's customers in the resolution of such
complaints and PERIMMUNE agrees that it will only interact with MENTOR in such
matters.
(b) PERIMMUNE shall evaluate and investigate all customer
complaints in connection with the Product which may be brought to its attention,
in writing, by MENTOR, provided that such complaints (i) have been confirmed by
MENTOR's QA/QC or technical service personnel using the same standards for
confirmation which MENTOR uses for products other than the Product and (ii) are
believed in good faith by MENTOR to arise out of a fault or omission
attributable to PERIMMUNE. Within twenty (20) calendar days following receipt
from MENTOR of the original notification of each such complaint, PERIMMUNE
agrees to provide MENTOR with a written interim or final complaint investigation
report. All such Product complaints reported to PERIMMUNE by MENTOR shall be
reviewed monthly by PERIMMUNE until closure, and a summary report thereof will
be provided by PERIMMUNE to MENTOR.
(c) PERIMMUNE will report to MENTOR all data and/or information
pertaining to adverse reports on any lot of Product supplied by PERIMMUNE for
distribution by MENTOR which would have an adverse impact on performance of the
Product.
(d) Should there be a difference of opinion between PERIMMUNE and
MENTOR regarding whether a field notification or recall is necessary, MENTOR
will exercise the right to notify its customers without delay.
6.8. Packaging and Intellectual Property. MENTOR shall be responsible for
repackaging the Product in such form as is suitable and in compliance with all
applicable laws for resale in each jurisdiction in which the Product is sold.
MENTOR will distribute the Product only with all appropriate labeling, packaging
and Product literature and only under MENTOR's applicable trademarks and trade
names. MENTOR recognizes PERIMMUNE's right, title and interest in its patents
(including all Product Patents), trademarks, trade names and copyrights, trade
secrets and proprietary information in connection with the Product and MENTOR
shall not claim any ownership right thereto inconsistent with this Agreement, or
dispute the validity thereof. In the event any third party shall contest
PERIMMUNE's rights to its patents,
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trademarks, trade names or copyrights, trade secrets or proprietary rights,
MENTOR shall, at PERIMMUNE's sole expense, render reasonable assistance to
PERIMMUNE in defending such claims.
6.9. Product Modifications. PERIMMUNE reserves the right, from time to
time, to modify the Product or to make any Improvement, and shall give MENTOR at
least three (3) months prior written notice before making any Improvement or
change to its manufacturing process for the Product that would have an impact on
any of PERIMMUNE's product verifications or validations, or changes in raw
materials that would alter the use of the Product for any Indicated Use or other
change or Improvement that could impact product labeling or promotional
literature; provided, however, that PERIMMUNE shall be required to provide
MENTOR with only reasonable advance notice where such modification or
Improvement is required to comply with any applicable legal or regulatory
requirement or the unanticipated modification or unavailability of raw material.
6.10. Appointment of Sub-Distributors. MENTOR may assign, sublicense,
delegate, or otherwise transfer the performance of the rights and obligations
hereunder to qualified and reputable sub-distributors, provided, however, that:
(i) MENTOR shall be liable to PERIMMUNE for the errors, negligent acts and
omissions of its sub-distributors as if such errors, negligent acts and
omissions were its own, including any breach of any provision of this Agreement
by the sub-distributors; (ii) MENTOR shall have and retain full control of any
sub-distributor utilized, and shall be responsible for the performance by any
sub-distributor; and (iii) MENTOR shall not be relieved of the responsibility
for the proper performance and completion of the sub-distributed portions of its
obligations hereunder.
ARTICLE VII
TERM AND TERMINATION
7.1. Term. This Agreement shall be in full force and effect in each
applicable jurisdiction, and for each applicable Indication Use, for a period
commencing on the Effective Date and continuing for a period equal to ten (10)
years following the obtaining of the first Approval of the Product for such
Indicated Use in such jurisdiction, provided that, MENTOR shall have the right
to terminate this agreement with respect to any such Indicated Use in any such
jurisdiction at the expiration of five (5) years from the date of such Approval
in such jurisdiction by giving not less than one-hundred and eighty (180) days
written notice to PERIMMUNE of its intention to so terminate.
7.2. Termination.
7.2.1. Termination by MENTOR Without Cause. MENTOR shall be
entitled to terminate this Agreement without cause at any time prior to
attainment of the Project Objective by giving PERIMMUNE not less than
one-hundred and eighty (180) days prior written notice of intention to
terminate, specifying the effective date of termination, if MENTOR reasonably
concludes that the Project Objective cannot be attained within the Target
Period, for a reason other than excusable delay and events of force majeure, at
a cost that does not exceed the Project
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Budget as adjusted by the parties as described herein. Should MENTOR exercise
the termination right conferred by this Section 7.1, then:
(i) MENTOR shall remain liable for the payment of any costs or
expenses that PERIMMUNE reasonably incurs in the winding down and
terminating of the Project Development Activities, including amounts
payable pursuant to contracts and agreements entered into by PERIMMUNE
prior to receiving notice of intention to terminate, provided that
nothing in this Section 7.2.1(i) shall cause MENTOR to be liable for
obligations of PERIMMUNE under contracts with institutions acting as
investigators in the clinical trials conducted pursuant to this
Agreement, which obligations are inconsistent with current industry
practice in the conduct of clinical trials.
(ii) MENTOR shall not have the right to the return of any funds
previously expended by it pursuant to this Agreement; and
(iii) MENTOR shall have no rights in the Product or the Project
Information and PERIMMUNE shall be free to license the right to
manufacture, market and sell the Product to any other persons as
PERIMMUNE may select without further duty or obligation to MENTOR.
7.2.2. Termination by MENTOR With Cause. MENTOR shall be entitled
to terminate this Agreement for cause by giving PERIMMUNE written notice of
intention to terminate, specifying the effective date of termination not less
than ninety (90) days prior to the effective date of termination, upon the
occurrence of any of the following events:
(i) PERIMMUNE commits a material breach of its obligations under
this Agreement and such material breach remains uncured for a period of
ninety (90) days after written notice of such default, specifying the
nature thereof, has been given to PERIMMUNE, unless, prior to the
expiration of such ninety (90) day period, PERIMMUNE has commenced, and
thereafter pursues with diligence to completion, those actions necessary
to cure such default within a reasonable period of time.
(ii) PERIMMUNE becomes insolvent or has a receiver, liquidator,
trustee or assignee in bankruptcy or insolvency appointed, in each case
whether by the voluntary act or otherwise, and, in the case of any such
proceeding that is involuntary, if such proceeding is not terminated
within thirty (30) days thereafter.
(iii) An order is made or a resolution is passed for the winding
up or liquidation of PERIMMUNE.
7.2.3. Termination by PERIMMUNE With Cause. PERIMMUNE shall be
entitled to terminate this Agreement for cause by giving MENTOR written notice
of intention to
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terminate, specifying the effective date of termination not less than ninety
(90) days prior to the effective date of termination, upon the occurrence of any
of the following events:
(i) MENTOR commits a material breach of its obligations under
this Agreement and such material breach remains uncured for a period of
ninety (90) days after written notice of such default, specifying the
nature thereof, has been given to MENTOR, unless, prior to the
expiration of such ninety (90) day period, MENTOR has commenced, and
thereafter pursues with diligence to completion, those actions necessary
to cure such default within a reasonable period of time.
(ii) MENTOR becomes insolvent or has a receiver, liquidator,
trustee or assignee in bankruptcy or insolvency appointed, in each case
whether by the voluntary act or otherwise, and, in the case of any such
proceeding that is involuntary, if such proceeding is not terminated
within thirty (30) days thereafter.
(iii) An order is made or a resolution is passed for the winding
up or liquidation of MENTOR.
7.3. Procedures on Termination. Upon termination of this Agreement:
(a) each party shall return to the other party all Confidential
Information (as defined herein) which such other party shall have supplied to
the party and which is in the party's possession.
(b) the rights and duties of each party under this Agreement in
respect of performance prior to termination shall survive and be enforceable in
accordance with the terms of this Agreement.
(c) within thirty (30) days of receipt of PERIMMUNE's invoice
therefor, MENTOR will pay PERIMMUNE for all remaining inventory of the Product
for which MENTOR has issued purchase orders to PERIMMUNE. Upon payment,
PERIMMUNE will ship such inventory to MENTOR at MENTOR's expense, and MENTOR
shall be entitled to continue to market and sell the Product until MENTOR's
inventory of the Product has been disposed of.
(d) If this Agreement has been terminated by reason of a material
breach by PERIMMUNE, adjudicated as provided by Section 7.4(iv), PERIMMUNE shall
continue to be bound by the provisions of Section 6.1 of this Agreement for the
same period of time during which PERIMMUNE would have been bound had such
termination not occurred.
7.4. Procedures on PERIMMUNE's Discontinuance of Manufacture. MENTOR shall
have the right to exercise the license granted pursuant to Section 4.2, above,
if PERIMMUNE (i) abandons the Project Development Activities without the
concurrence of MENTOR; (ii) discontinues manufacturing the product for valid
business reasons that cannot be remedied within a reasonable period of time;
(iii) is otherwise unable to supply the requirements of
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MENTOR for the Product on forecasted delivery dates, as such requirements and
delivery dates are set forth in the twelve (12) month forecast of purchases
submitted by MENTOR to PERIMMUNE pursuant to Section 6.3(d) of this Agreement
for a period of two successive quarters; or (iv) is in material breach of this
Agreement, which material breach has been determined by a court of law, which
determination has become final and not subject to further appeal. Upon the
occurrence of any such event, PERIMMUNE shall transfer to MENTOR any necessary
technology, knowledge, know-how, and the rights to the Approvals for the Product
for use in the Indicated Uses, to the extent necessary or appropriate to enable
MENTOR or its alternate supplier to exercise the license granted under Section
4.2. MENTOR shall reimburse PERIMMUNE the reasonable out-of-pocket costs
PERIMMUNE incurs in doing so (including salary benefits for time expended by
PERIMMUNE employees) immediately upon receipt of an invoice therefor. If any
such event occurs before the issuance of an Approval for an Indicated Use, then
PERIMMUNE shall transfer to MENTOR all Project Information relating to such
Indicated Use.
ARTICLE VIII.
WARRANTIES
8.1. Representations and Warranties of MENTOR. MENTOR hereby makes the
following representations and warranties to PERIMMUNE, which representations and
warranties are true and correct on the date hereof:
(a) MENTOR is a corporation duly organized, validly existing and in
good standing under the laws of the state of Minnesota and has all requisite
corporate power and authority to enter into this Agreement and perform its
obligations hereunder.
(b) Neither the execution or delivery of this Agreement, nor the
consummation of the transactions contemplated herein, will (a) violate or
conflict with any provision of the Certificate of Incorporation or By-laws of
MENTOR, each as in effect on the Effective Date; (b) with or without the giving
of notice or the lapse of time or both (i) result in a breach of, or violate, or
be in conflict with or constitute a default under, or result in the termination
or cancellation of, or accelerate the performance required under, any security
instrument, mortgage, note, debenture, indenture, loan, lease contract,
agreement or other instrument, to which MENTOR is a party or by which it or any
of its properties or assets may be bound or affected, or (ii) result in the loss
or adverse modification of any lease, franchise, license or other contractual
right or other authorization granted to or otherwise held by MENTOR; (c) require
the consent of any party to any such agreement or commitment to which MENTOR is
a party or by which any of its properties or assets are bound; (d) result in the
creation or imposition of any lien, claim or encumbrance upon any property or
assets of MENTOR; or (e) require any consent, approval, authorization, order,
filing, registration or qualification of or with any court or governmental
authority or arbitrator to which MENTOR is subject or by which any of its
properties or assets may be bound or affected, other than Approvals of the
Product for the Indicated Uses, as contemplated herein.
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(c) All action to authorize the execution and delivery of this
Agreement and the consummation of the transactions contemplated herein have been
duly taken, and this Agreement constitutes the valid and binding obligation of
MENTOR enforceable in accordance with its terms.
(d) There are no claims relating to patent infringement or any
other matters, actions, suits, proceedings, arbitrations or investigations
pending or, to the best of MENTOR's knowledge, threatened, against MENTOR which
if adversely determined would adversely affect MENTOR's ability to sell the
Product for any Indicated Use, or MENTOR's ability to conduct Product
Development or to enter into or carry out this Agreement.
8.2. Representations and Warranties of PERIMMUNE. PERIMMUNE hereby makes
the following representations and warranties to MENTOR, which representations
and warranties are true and correct on the date hereof
(a) PERIMMUNE is a corporation duly organized, validly existing and
in good standing under the laws of the state of Delaware and has the power and
authority to enter into this Agreement and perform its obligations hereunder.
(b) Neither the execution or delivery of this Agreement, nor the
consummation of the transactions contemplated herein, will (a) violate or
conflict with any provision of the Certificate of Incorporation or By-laws of
PERIMMUNE, each as in effect on the Effective Date; (b) with or without the
giving of notice or the lapse of time or both (i) result in a breach of, or
violate, or be in conflict with or constitute a default under, or result in the
termination or cancellation of, or accelerate the performance required under,
any security instrument, mortgage, note, debenture, indenture, loan, lease
contract, agreement or other instrument, to which PERIMMUNE is a party or by
which it or any of its properties or assets may be bound or affected, or (ii)
result in the loss or adverse modification of any lease, franchise, license or
other contractual right or other authorization granted to or otherwise held by
PERIMMUNE; (c) require the consent of any party to any such agreement or
commitment to which PERIMMUNE is a party or by which any of its properties or
assets are bound; (d) result in the creation or imposition of any lien, claim or
encumbrance upon any property or assets of PERIMMUNE; or (e) require any
consent, approval, authorization, order, filing, registration or qualification
of or with any court or governmental authority or arbitrator to which PERIMMUNE
is subject or by which any of its properties or assets may be bound or affected,
other than Approvals of the Product for the Indicated Uses, as contemplated
herein.
(c) All action to authorize the execution and delivery of this
Agreement and the consummation of the transactions contemplated herein have been
duly taken, and this Agreement constitutes the valid and binding obligation of
PERIMMUNE enforceable in accordance with its terms.
(d) There are no claims relating to patent infringement or any
other matters, actions, suits, proceedings, arbitrations or investigations
pending or, to the best of PERIMMUNE's knowledge, threatened, against PERIMMUNE
which if adversely determined
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would adversely affect the use of the Product for any Indicated Use, or
PERIMMUNE's ability to enter into or carry out this Agreement.
(e) PERIMMUNE, after having made a reasonable investigation and
obtaining the advice of its counsel, (i) has no knowledge that the manufacture,
use, importation or sale of the Product for the Indicated Uses under this
Agreement, either alone or in combination, infringes any patent or other
industrial property right of a third party; and (ii) has not received any
notification from any third party alleging or suggesting that the manufacture,
use, importation or sale of the Product does or would infringe any patent or
other industrial property. PERIMMUNE shall disclose to MENTOR any information
regarding adverse patent rights of which it is, or becomes, aware relating to
the Product.
ARTICLE IX.
INDEMNIFICATION
9.1. PERIMMUNE Indemnification. PERIMMUNE shall defend, indemnify and
hold harmless MENTOR and its directors, employees, representatives and agents
from and against all suits, claims, liabilities, damages, demands and costs
(including, but not limited to, reasonable legal expenses) ("Claims") incurred
as a result of:
(a) any claims of or on behalf of third parties for death or
personal injury resulting from the Product; provided, however, that this
indemnity shall not apply to, and PERIMMUNE shall not be liable for, any such
claim caused by or arising from:
(i) any act or failure on the part of MENTOR, its Affiliates, or
their respective employees, representatives, agents or subsidiaries (the
"MENTOR Parties") in packaging, handling, storing or otherwise
distributing the Product;
(ii) any representation or warranty concerning the Product made
by or on behalf of MENTOR or any MENTOR Party and not specifically
authorized by PERIMMUNE;
(iii) any claim resulting from the use of the Product by any
customer that was not in accordance with the use presented by PERIMMUNE;
(iv) MENTOR's failure to disseminate to purchasers or end-users
any Product information which PERIMMUNE has made available to MENTOR;
(v) any claim where PERIMMUNE has not been notified in writing
within forty five (45) days of MENTOR's first notice of this claim;
(vi) any claim where MENTOR fails to furnish evidence in its
possession or fails to fully cooperate with PERIMMUNE in preparing the
defense;
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(b) any claim that the Product or any activities hereunder infringe
the patent or other intellectual property rights of any third party provided
MENTOR gives PERIMMUNE notice within forty-five (45) days of MENTOR's first
notice of the claim; provided, however, that the claim is not based on (i) the
sale or use of the Product in combination with any other product which is not
specifically authorized by PERIMMUNE in writing; and
(c) PERIMMUNE's material breach of the terms of this Agreement.
9.2. MENTOR Indemnification. MENTOR shall defend, indemnify and hold
harmless PERIMMUNE and its directors, employees, representatives and agents from
and against all Claims incurred as a result of:
(a) MENTOR's material breach of the terms of this Agreement.
9.3. Indemnification Proceedings.
(a) Notice of Claims: Assumption of Defense. The party to be
indemnified ("the Indemnified Party") shall give prompt notice to the other
party ("the Indemnifying Party") of the assertion of any Claim in respect of
which indemnity may be sought hereunder (and in any event within fifteen (15)
calendar days after the service of the citation or summons). It is understood,
however, that the Indemnified Party shall be authorized and expected to take any
such prompt action as may be reasonably necessary in the circumstances of any
proceedings seeking an injunction or similar equitable relief against it. The
Indemnifying Party may, at its own expense (i) participate in the defense of any
Claim for which it is obligated to indemnify the Indemnified Party hereunder and
(ii) upon notice to the Indemnified Party at any time during the course of any
such Claim, assume the defense thereof; provided, however, that (i) the
Indemnifying Party's counsel is reasonably satisfactory to the Indemnified Party
and (ii) the Indemnifying Party shall, upon reasonable request, thereafter
consult with the Indemnified Party from time to time with respect to such Claim.
If the Indemnifying Party assumes such defense, the Indemnified Party shall have
the right (but not the duty) to participate in the defense thereof and to employ
counsel, at its own expense, separate from the counsel employed by the
Indemnifying Party. Whether or not the Indemnifying Party chooses to defend or
prosecute any such Claim, both parties hereto shall cooperate in the defense or
prosecution thereof.
(b) Settlement or Compromise. Any settlement or compromise made or
caused to be made by the Indemnified Party or the Indemnifying Party (as the
case may be) of any Claim shall be binding upon the Indemnifying Party or the
Indemnified Party (as the case may be) in the same manner as if a final judgment
or decree has been entered by a court of competent jurisdiction in the amount of
such settlement or compromise; provided however, that no obligation, restriction
or loss shall be imposed on an Indemnified Party as a result of such settlement
without its prior written consent which consent shall not be unreasonably
withheld, and such settlement shall include an unconditional release of the
Indemnified Party; and provided further, that the Indemnified Party shall not
make or cause to be made any such settlement or compromise without the prior
written consent of the Indemnifying Party, which consent shall not unreasonably
be withheld. The Indemnified Party will give the Indemnifying Party at least
thirty (30) days' prior written notice of any proposed settlement or compromise
of any Claim it itself is
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defending, during which time the Indemnifying Party may assume the defense of,
and responsibility for, such Claim and, if it does so, the proposed settlement
or compromise may not be made.
(c) Failure of Indemnifying Party to Act. In the event that the
Indemnifying Party does not elect to assume the defense of any claim or to cause
the same to be done, then any failure of the Indemnified Party to defend or
participate in the defense of any such claim or to cause the same to be done,
shall not relieve the Indemnifying Party of its obligations hereunder; provided
however, that the Indemnified Party shall have given the Indemnifying Party at
least thirty (30) days' notice of its proposed failure to defend or participate
and afford the Indemnifying Party the opportunity to assume defense thereof
prior to the end of such period.
(d) Procedure for Indemnification. Upon becoming aware of any claim
for indemnification, the Indemnified Party shall promptly give notice of such
claim (a "Claim Notice") to the Indemnifying Party and will provide, to the
extent possible and without prejudice to the rights of the Indemnified Party
hereunder, a good faith estimate of the amount the Indemnified Party reasonably
anticipates that it will be entitled to on account of indemnification by the
Indemnifying Party. If the Indemnifying Party does not object to such
indemnification claim within forty-five (45) days of receiving notice thereof,
the Indemnified Party shall be entitled to recover promptly the amount of such
claim (but such recovery shall not limit the amount of any additional
indemnification or other rights to which the Indemnified Party may be entitled
pursuant to this Article IX). If, however, the Indemnifying Party advises the
Indemnified Party that it disagrees with the Indemnified Party's claim, the
parties shall, for a period of forty five (45) days after the Indemnifying Party
advises the Indemnified Party of such disagreement, attempt to resolve the
difference. If the parties are unable to reach agreement within such forty five
(45) days, the disagreement shall be resolved pursuant to Section 10.8 hereof.
(e) Limitations. No claim for indemnification shall be valid unless
first made in writing within forty-five (45) days of the Indemnified Party's
first notice of such claim.
ARTICLE X
MISCELLANEOUS
10.1. Confidentiality.
(a) Confidentiality Defined. For the purposes of this Agreement,
the term "Confidential Information" shall be any information embodying concepts,
ideas, techniques, proprietary information, know-how, formulations, market data,
customer lists, product specifications and accounting data which:
(i) is disclosed by one party hereto to the other;
(ii) is claimed by the disclosing party to be secret,
confidential and proprietary to the disclosing party; and
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(iii) if disclosed in writing, is marked by the disclosing party
to indicate its confidential nature or, if disclosed orally as
confidential, is confirmed in writing by the disclosing party to be
confidential within ten (10) days following disclosure.
(b) Non-Disclosure. During the period that this Agreement remains
in effect and for a period of three (3) years following termination hereof, each
party (except as is explicitly otherwise required hereby) shall keep
confidential, shall not use for itself or for the benefit of others and shall
not copy or allow to be copied in whole or in part any Confidential Information
disclosed to such party by the other. The obligation of confidentiality imposed
upon the parties by the foregoing paragraph shall not apply with respect to any
alleged Confidential Information which:
(i) is known to the recipient thereof, as evidenced by said
recipient's written records, prior to receipt thereof from the other
party hereto;
(ii) is disclosed to said recipient after the date hereof by the
third party who has the right to make such disclosures and who does not
violate any confidentiality agreement with the affected party hereto;
(iii) is or becomes a part of the public domain through no fault
of the said recipient; or
(iv) is required by law or judicial or administrative process to
be disclosed.
(c) Non-Disclosure of Relationship. PERIMMUNE and MENTOR shall
agree to keep confidential and not disclose to third parties, the supply and
working relationship under this Agreement.
(d) Limited Use of Confidential Information. Each party agrees to
limit access to Confidential Information to employees and agents having a need
to know and to protect Confidential Information to the same extent as it
protects its own trade secrets.
10.2. Notices. Any notices or report or other communication permitted or
required under this Agreement shall be in writing and sent by certified mail,
express mail; Federal Express, postage paid, return receipt requested, addressed
to the party to whom the notice is to be given. All notices, reports or other
communications made hereunder shall be deemed to have been made on the date
postmarked. Changes in address shall be accomplished by a notice in compliance
with this Section 10.2. The current address for each party is as follows:
PERIMMUNE MENTOR Corporation
0000 Xxxxxxx Xxxxx 0000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000-0000 Xxxxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xx. Xxxxx Xxxxxx Attn: Xx. Xxxxxxx Xxxxx
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10.3. Binding Effect. This Agreement shall be binding upon and shall
inure to the benefit of each of the parties and their respective heirs,
successors, assigns and legal representatives. Either party may freely assign
this Agreement to any Affiliate, and either party shall have the right to assign
its rights and licenses and to delegate its duties under this Agreement to any
third party who (a) purchases all or substantially all of the business assets of
the assignor or who succeeds to the business of the assignor by reason of a
merger or consolidation and (b) agrees to assume the duties and obligations of
the assignor hereunder. Except as expressly provided herein, no party hereto
shall have the right to transfer or assign its interest in this Agreement
without the prior written consent of the other party hereto, which consent may
not be unreasonably withheld. The assignment by either party of any rights under
this Agreement shall not relieve the assigning party from any of its obligations
under this Agreement.
10.4. Force Majeure. Neither party shall be liable in damages for, nor
shall this Agreement be terminable or cancelable by reason of any delay or
default in such party's performance hereunder if such default or delay is caused
by events beyond such party's reasonable control including, but not limited to,
acts of God, regulation or law or other action of any government of agency
thereof, war or insurrection, civil commotion, destruction or production
facilities or materials by earthquakes, fire, flood or storm, labor
disturbances. epidemic, or failure of supplies, public utilities or common
carriers. Each party shall endeavor to resume its performance hereunder if such
performance is delayed or interrupted by reason of force majeure. Each party
shall notify the other, in writing, not less often than monthly, of the nature
of progress of such endeavors.
10.5. Insurance. Each party shall keep in force during the term of this
Agreement, and for a period of three (3) years following its termination,
product liability insurance in such amounts as may be customary for like-sized
businesses undertaking like responsibilities to those contemplated by this
Agreement. Each party shall submit a certificate of insurance to the other
evidencing such coverage upon written request therefor.
10.6. Severability. Should any part of this Agreement be held
unenforceable or in conflict with the applicable laws or regulations of any
jurisdiction, the invalid or unenforceable part or provision shall be replaced
with a provision which accomplishes, to the extent possible, the original
business purpose of such part or provision in a valid and enforceable manner,
and the remainder of this Agreement shall remain binding upon the parties.
10.7. Waiver. Waiver by either party of a default or breach or a
succession of defaults or breaches, or any failure to enforce any right
hereunder shall not be deemed to constitute a waiver of any subsequent default
or breach with respect to the same or any other provision hereof, and shall not
deprive such party of any right to terminate this Agreement arising by reason of
any subsequent default or breach.
10.8. Mediation. Unless the relief sought requires the exercise of the
equity powers of a court of competent jurisdiction, neither party shall commence
any action or proceeding to construe or enforce the terms and conditions of this
Agreement unless such party has first given
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written notice of its intention to do so and submitted such matter to
non-binding mediation if the other party desires to have the controversy
mediated. Any party who receives from the other party (a) a notice of default
under this Agreement, or a notice that such other party intends to submit a
controversy or dispute for adjudication, shall have a period of fifteen (15)
days after its receipt of such notice to request that the dispute or controversy
be submitted to mediation, and the failure of the recipient of any such notice
to make a written request for mediation within such fifteen (15) day period
shall be deemed to have waived its right to require that such matter be
submitted to mediation. The period during which any such matter is being
mediated shall not toll the period during which any party who is in default in
the performance of its obligations under this Agreement is obligated to remedy
or cure such default.
10.9. Venue and Jurisdiction. The parties hereto (a) mutually consent
and stipulate that any action or proceeding commenced to interpret or enforce
this Agreement or the rights and duties of the parties hereunder shall be
commenced and conducted in a state or federal court of competent jurisdiction
situated in the county or judicial district in which the defendant in such
action or proceeding has its corporate headquarters, (b) each waive any claim
that any such state or federal court is an inconvenient forum, and (c) each
irrevocably agrees that any and all actions or proceedings arising out of or
relative to this Agreement or from transactions contemplated herein shall be
exclusively heard only in such state or federal court.
10.10. Governing Law. This Agreement, the construction and enforcement
of its terms, and the interpretation of the rights and duties of the parties
hereunder shall be governed by and interpreted in accordance with the laws of
the State of Maryland without regard to the choice of law rules utilized in that
jurisdiction.
10.11. Costs of Enforcement. Should any action or proceeding be
necessary to construe or enforce this Agreement, then the party prevailing in
any such action or proceeding shall be entitled to recover all court costs and
reasonable attorneys' fees, to be fixed by the court and taxed as part of any
judgment entered therein, and the costs and fees incurred in enforcing or
collecting any such judgment.
10.12. Entire Agreement. This Agreement represents the entire
understanding between the parties as of the Effective Date with respect to the
subject matter hereof, and supersedes all prior agreements, negotiations,
understandings, representations, statements, and writings, between the parties
relating thereto. No modification, alteration, waiver or change in any of the
terms of this Agreement shall be valid or binding upon the parties hereto unless
made in writing and specifically referring to this Agreement and duly executed
by each of the parties hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in duplicate by their duly authorized representatives as of the day and
year first written above.
PERIMMUNE, INC. MENTOR CORPORATION
By: /s/ X. X. XXXXX, XX. By: /s/ XXXXXXXXXXX X. XXXXXX
------------------------------- ---------------------------------
Name: X. X. Xxxxx, Xx. Name: Xxxxxxxxxxx X. Xxxxxx
Title: Chairman and CEO Title: Chairman/CEO
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