LICENSE AND TECHNOLOGY TRANSFER AGREEMENT
THIS AGREEMENT (the "Agreement") dated as of March 1, 2002 is by and
between HAEMACURE CORPORATION, a corporation organized and existing under the
laws of Quebec, Canada having its main office at 0000 Xxxxxxxxxx Xxxxxx, Xxxxx
000, Xxxxxxxx, Xxxxxx 43A2AG, (hereinafter referred to as "HAE") and ZLB
BIOPLASMA AG, a wholly-owned subsidiary of CSL Limited, and a corporation
organized and existing under the laws of Switzerland, having its main office and
place of business at Xxxxxxxxxxxxxxx 00, of 0000 Xxxx 22, (hereinafter referred
to as "ZLB Bioplasma"), (HAE and ZLB Bioplasma are hereinafter jointly referred
to as "the Parties").
RECITALS:
WHEREAS, HAE and ZLB Central Laboratory Blood Transfusion Service SRC
(hereinafter referred to as "ZLB Foundation") entered into a License Agreement
and a Supply Agreement (the "1999 Agreements"), both dated June 15, 1999;
WHEREAS, ZLB Foundation and ZLB Bioplasma entered into an asset purchase
agreement dated June 6, 2000 in which ZLB Bioplasma acquired from ZLB Foundation
all assets and liabilities related to ZLB Foundation's plasma products business,
including but not limited to, the obligations assumed by ZLB Bioplasma under the
1999 Agreements;
WHEREAS, the Parties have terminated the 1999 Agreements; and
WHEREAS, in return for the royalty payments described herein, ZLB Bioplasma
agrees to (i) transfer to HAE all ZLB Bioplasma rights and assets relating
solely to the Products or the HMN Project (as hereinafter defined); (ii) license
to HAE any ZLB Technology (as hereinafter defined) relating to the Products; and
(iii) make certain milestone payments based on HAE's progress to license a
Product.
AGREEMENT:
NOW, THEREFORE, in consideration of premises and covenants hereinafter set
forth, the parties hereto agree as follows:
1. DEFINITIONS
As used in this Agreement, the following terms have the following meanings
respectively;
1.1 "Products" shall mean any product consisting of one or both of two
components (a) Fibrinogen (and all associated proteins, including
Factor XIII and Fibronectin), whether in liquid or lyophilized form,
isolated by repeated salt precipitation in the presence of
amino-6-hexanoic acid, the latter being used to prevent co-precipation
of plasminogen (b) Thrombin, whether in liquid or lyophilized form,
with any associated components, as isolated by ion-exchange
chromatography over a sulpho-alkyl group - containing gel, weight
elution of the protein by acetate buffer, including
any improvements thereof developed between HAE and ZLB Bioplasma or
between HAE and ZLB Foundation.
1.2 "Device" means any accessory, applicator, device or other means for
reconstitution and/or application of the Products, but specifically
excluding the bandage falling within the scope of patents applied for
or granted to the American Red Cross.
1.3 "Effective Date" shall mean the day beginning 12:01 am EST, March 8,
2002.
1.4 "HMN Project" shall mean the work conducted by ZLB Foundation and ZLB
Bioplasma on their own or in conjunction with HAE for the research,
development, facility design, pre-clinical studies, clinical trials
and registration of the Products.
1.5 "Initial Products" shall mean any product consisting of two components
(a) Fibrinogen (and all associated proteins, including Factor XIII and
Fibronectin) in lyophilised form isolated by repeated salt
precipitation in the presence of amino-6-hexanoic acid, the latter
being used to prevent co-precipation of plasminogen and (b) Thrombin
in lyophilised form with any associated components, as isolated by
ion-exchange chromatography over a sulpho-alkyl group - containing
gel, weight elution of the protein by acetate buffer.
1.6 "Net Sales" means the gross amount invoiced or otherwise charged by
HAE for the sale or other disposition of Initial Products to third
parties, less the following deductions (to the extent not recovered or
recoverable from any person): (a) trade and/or quantity discounts
actually allowed and taken in amounts as are customary in the trade,
(b) sales and other excise taxes and customs duties charged, absorbed
or allowed, (c) transportation, postage and insurance costs, (d)
amounts repaid, credited or allowed by reason of rejection, defects or
returns; and (e) amounts allocated for any Device sold with the
Initial Products as based on its sales price if sold separately.
1.7 "ZLB Technology" shall mean all of ZLB Bioplasma's rights and other
assets used, owned or controlled by ZLB Bioplasma relating directly to
the research, development, manufacture, use, registration, and/or sale
of the Products or Devices as of the Effective Date of this Agreement
including, without limitation, all conceptions, innovations,
inventions, formulations, trade secrets, know-how, specifications
(chromatography parameters and the like), designs, drawings,
processes, pre-clinical and clinical data, dossiers, SOP manuals,
pharmacological, clinical, and medical data, health registration data,
production information, manufacturing information, testing and quality
control data, research materials, software, code, copyrights,
information stored in management information systems (and
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specifications sufficient for HAE to use such information), all
information in the possession of ZLB Bioplasma pursuant to the
obligations of the 1999 Agreements and related to the HMN Project, and
all data, contractual rights, materials and information relating to
FDA and other governmental or regulatory approvals.
2. TRANSFER OF ASSETS
2.1 Documents. ZLB Bioplasma hereby transfers title and ownership to all
documents (in whatever form) to HAE relating to the HMN Project,
including but not limited to (i) SOP manuals and instructions, (ii)
pre-clinical and clinical data, (iii) FDA and other regulatory agency
files and correspondence, (iv) user requirement and purchase
specifications for equipment, (v) facility design and construction
designs, drawings and blueprints, (vi) in-process, intermediate and
final product specifications, (vii) xxxx of materials, (viii) testing
and quality control data, (ix) viral validation reports and studies,
(x) yield studies, (xi) research materials and all other documents
regarding equipment validation and product validation.
2.2 Initial Document Transfer. Within ten (10) days of the Effective Date,
ZLB Bioplasma shall provide a listing of all documents referenced in
this Article 2. The parties agree to meet at the Bern, Switzerland
facility of ZLB Bioplasma within thirty (30) days of receipt by
Haemacure of the listing to discuss the transfer of documents. Within
thirty (30) days of such meeting, ZLB Bioplasma shall deliver such
documents at ZLB Bioplasma's cost to a location designated by HAE (the
"Initial Document Transfer").
2.3 Other Rights. ZLB Bioplasma hereby conveys to HAE any and all rights
it may have, whether tangible or intangible, in the HMN Project. If
requested by HAE, ZLB Bioplasma shall assign its rights under the
Parexel clinical trial agreement. ZLB Bioplasma agrees to have Parexel
issue a final report on the recently completed Phase II clinical
study, and ZLB Bioplasma shall bear the costs of such final report.
2.4 No Liabilities. ZLB Bioplasma does not transfer, and HAE shall not
assume, any liabilities of ZLB Bioplasma or ZLB Foundation relating to
the HMN Project, including but not limited to liabilities associated
with clinical studies conducted prior to the date of this Agreement.
2.5 Multipurpose Documents. To the extent that documents of ZLB Bioplasma
are used or could be used for other matters or projects at ZLB
Bioplasma, ZLB Bioplasma may provide a copy of such documents instead
of the original, the copying costs to be the responsibility of ZLB
Bioplasma.
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3. TECHNOLOGY OWNERSHIP
3.1 Exclusive License. ZLB Bioplasma hereby grants and agrees to grant to
HAE, its successors and assigns, a perpetual, worldwide, transferable
exclusive license under all ZLB Technology to make, have made, use,
sell or otherwise develop or commercialize fibrin sealants or any of
the components thereof, including but not limited to, the right to
make, have made, use, sell or otherwise develop or commercialize the
Products and/or Devices and the right to establish facilities for
manufacturing and otherwise commercializing the Products and/or
Devices.
3.2 Patent Rights. Notwithstanding Section 3.1, HAE shall have the right,
in its sole discretion, and at its own cost, to pursue patent
protection for ZLB Technology inventions, wherein ZLB agrees to
provide all reasonable assistance to HAE in obtaining and enforcing
proper title in and protection for ZLB Technology inventions under the
intellectual property laws of the United States and countries foreign
thereto.
3.3 Patent Assignment. ZLB Bioplasma hereby assigns and agrees to assign
to HAE the entire right, title and interest in all patents or patent
applications for ZLB Technology.
3.4 Sublicensing. HAE may transfer or sublicense its rights hereunder to a
third party or parties without ZLB Bioplasma's consent.
3.5 Further Assurances. ZLB Bioplasma shall take such actions as may be
reasonably requested by HAE to vest complete control and title to the
HMN Project with HAE including providing written authorization to
transfer the IND at the U.S. Food and Drug Administration back to HAE.
3.6 Non-Use Covenant. ZLB Bioplasma agrees that, for a period of five (5)
years from the Effective Date, it shall not use or utilize any ZLB
Technology for any project to develop, manufacture or sell fibrinogen
and thrombin combined.
4. MANUFACTURING SUPPORT AND TECHNOLOGY TRANSFER
4.1 Manufacturing Support. ZLB Bioplasma agrees to provide for a period of
thirty-six (36) months from the Effective Date: (a) such assistance
and advice as is reasonably necessary to enable HAE to obtain all
necessary regulatory and governmental approvals to manufacture, sell
and use the Products, (b) such assistance as is reasonably necessary
to enable HAE to manufacture the Products in substantially the same
manner and quality employed or achieved by ZLB Bioplasma, and (c)
consultation with knowledgeable employees of ZLB Bioplasma (past and
present) and training at a facility of HAE's choosing, for a period
sufficient to adequately train HAE's personnel in the manufacture of
the Products. Such assistance may include on-site inspections of ZLB
Bioplasma's
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facility established to manufacture the Products, upon reasonable
notice and request by HAE. The parties shall mutually agree in writing
concerning details of such visits, including the frequency, subject
matter involved, duration, respective representatives involved, and
timing of such visits. HAE agrees that its requests for assistance
shall be reasonable in scope and duration, tailored to be as
unobtrusive as possible, and be made with as much notice as possible
to allow ZLB Bioplasma to meet the request. Further, HAE acknowledges
that ZLB Bioplasma project needs shall take precedent over HAE
requests, within reason. HAE will pay all of the traveling, lodging
and other expenses of its own representatives and personnel incurred
in connection with this Section 4.1. ZLB Bioplasma shall be
responsible for all costs associated with its assistance hereunder
provided however, any travel and lodging incurred by ZLB Bioplasma
personnel to visit locations other than Bern, Switzerland shall be
reimbursed by HAE.
4.2 Access to ZLB Technology. In addition to the manufacturing support
described in Section 4.1 and the Initial Document Transfer, upon
reasonable notice to ZLB, ZLB shall, for a period of thirty-six (36)
months following the Effective Date, use all reasonable efforts to
provide to HAE ZLB Technology not part of the Initial Document
Transfer for the purpose of enabling HAE to obtain governmental or
regulatory approval to manufacture, sell and use the Products, and to
manufacture the Products in adequately sized quantities for
commercialization of the Products.
4.3 Transfer Log. The parties shall mutually agree in writing on
procedures for the memorialization of each ZLB Technology transfer,
including keeping a transfer log of all documents provided to HAE. The
parties shall detail in written memoranda each oral communication,
visit and inquiry.
5. PAYMENTS TO HAE
5.1 Contract Payments. In consideration of the royalty payments provided
in Article 6 below, and subject to the achievement of the milestones
provided in this Article 5 below, ZLB Bioplasma agrees to pay to HAE
the maximum aggregate consideration of Four Million Five Hundred
Thousand U.S. Dollars (U.S. $4,500,000) in three equal installments of
One Million Five Hundred Thousand U.S. Dollars (U.S. $1,500,000) upon
the achievement by HAE of the following milestones (the "Milestone
Payments"):
(i) the commissioning of a facility (as evidenced by the successful
operation qualifications of manufacturing equipment) capable to
produce commercial quantities of the Initial Products;
(ii) approval by the FDA of an IND for the Initial Product; and
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(iii) achievement of fifty percent (50%) patient enrollment of Phase
III clinical trials necessary for final registration of the
Initial Product.
Upon the completion by HAE of each milestone, HAE shall provide ZLB
Bioplasma with reasonable documentation that demonstrates the
achievement of the milestone.
In the event that HAE designates Bio Products Laboratory in Elstree,
UK as the manufacturer of the Initial Product, HAE shall not be
eligible for, and Bioplasma shall not be obligated to pay, the
Milestone Payment described in Section 5.1 (i) above.
5.2 Timing of Payments. Each Milestone Payment is payable in U.S. Dollars
by wire transfer in immediately available funds within fifteen (15)
business days of receipt by ZLB Bioplasma of satisfactory written
evidence from HAE, in ZLB Bioplasma's reasonable and good faith
judgment, of the achievement of the milestone event. Interest on late
payments shall be assessed by HAE and payable by ZLB Bioplasma at the
rate of 1 and 1/2% per month or part thereof that any such Milestone
Payment remains unpaid, or the maximum amount permitted by law,
whichever is less. ZLB Bioplasma shall pay or reimburse HAE for all
costs of collection, including, without limitation, reasonable
attorneys' fees and expenses.
5.3 Termination of Milestone Payments. ZLB Bioplasma's obligation to make
Milestone Payments shall terminate (i) immediately if XXX xxxxxx with,
acquires or is acquired by a commercial plasma fractionator in
competition with ZLB Bioplasma; and (ii) after three (3) years from
the Effective Date, upon three hundred and sixty (360) days' notice
from ZLB Bioplasma, provided that HAE is not engaged in any activity
regarding the HMN Project (plant construction, clinical trials and the
like) for the previous six (6) months or during the notice period.
5.4 Plasma Supply. ZLB Bioplasma agrees to supply to HAE sourced human
plasma for use by HAE for the licensure and launch of the Initial
Products in United States and Europe. The maximum amount of plasma to
be supplied hereunder shall be not more than 50,000 liters. The supply
agreement shall terminate thirty (30) days after the licensure of the
Initial Products in the United States or seven (7) years, whichever is
shorter. The price to be charged for sourced plasma shall be ZLB
Bioplasma, Inc.'s cost, which the parties agree shall be reflected as
the best price from ZLB Bioplasma, Inc. to any of its customers
through a third-party, arm's length transaction in a given year, less
10%. The supply shall be pursuant to such other customary and
reasonable terms as the parties shall agree at the time of supply. In
the event HAE uses recovered plasma for the Initial Product, ZLB
Bioplasma agrees to use good faith efforts to supply recovered
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plasma in accordance with this Section 5.4 on the same terms it
procures such plasma.
6. ROYALTY PAYMENT
6.1 Consideration. In consideration of the rights granted and payments
made hereunder, HAE agrees to the following royalty payments:
(i) Royalty. For a period of ten (10) years from the date of
licensure by the FDA or any European agency of Initial Products,
HAE shall pay to ZLB Bioplasma a royalty amount of three percent
(3%) of Net Sales of the Initial Products.
(ii) Sublicense Consideration. For a period of ten (10) years from the
date of licensure by the FDA or any European agency of Initial
Products, HAE shall pay to ZLB Bioplasma three percent (3%) of
any consideration paid to HAE net of any applicable withholding
taxes in the country of origin for sublicensing rights granted by
HAE for Initial Products to third-parties unaffiliated with HAE.
6.2 Payment. Royalties shall be payable by HAE within sixty (60) days
after the end of each calendar quarter based on the Net Sales of the
Products during the preceding calendar quarter, less applicable
withholding taxes. Such payments shall be accompanied by a statement
setting forth the Net Sales of the Initial Products by HAE, which
statement shall indicate (I) the gross amount invoiced or otherwise
charged by HAE for the sale or other disposition of the amount charged
by HAE for the sale or other disposition of the Initial Products, and
(II) the Net Sales of the Products. Payments for consideration
received by HAE under Section 6.1(ii) shall be payable to ZLB
Bioplasma with sixty (60) days of receipt by HAE, less any applicable
withholding. Interest on late payments shall be assessed by ZLB
Bioplasma and payable by HAE at the rate of 1 and 1/2% per month of
part thereof that any such payment remains unpaid, or the maximum
amount permitted by law, whichever is less. HAE shall pay or reimburse
ZLB Bioplasma for all costs of collection, including, without
limitation, reasonable attorneys' fees and expenses.
6.3 Accounting; Blocked Currency. The aggregate amount of the Net Sales of
the Initial Products used for computing the royalties payable by HAE
pursuant to Section 6.1(i) hereof shall be computed in Canadian
Dollars, and all payments of such royalties shall be made in Canadian
Dollars. For purposes of determining the amount of royalties due with
respect to any period, the amount of the Net Sales of the Initial
Products during such period in any foreign currency ("Other Currency")
shall be computed generally by converting such amount into Canadian
Dollars in accordance with generally accepted accounting principles
and pursuant to HAE's formal established accounting procedures for the
calculation of HAE's
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foreign earnings for financial reporting purposes with respect to such
period. HAE shall pay to ZLB Bioplasma the amount of accrued royalties
in respect of any such Net Sales within 30 business days after the
date on which the relevant Other Currency shall become convertible
into Canadian Dollars and transferable to ZLB Bioplasma in Swiss
francs. HAE shall provide to ZLB Bioplasma such documentation with
respect to any of the above situations as ZLB Bioplasma shall
reasonably request.
6.4 Records. HAE shall keep complete and accurate records of the Net Sales
of the Initial Products in sufficient detail to allow the royalties
payable hereunder to be accurately determined. ZLB Bioplasma shall
have the right for a period of six (6) months after receiving any
report or statement with respect to royalties due and payable
hereunder to appoint an independent accounting firm reasonably
acceptable to HAE to inspect and audit the relevant records of HAE, to
verify such report or statement. HAE shall make their records
available for inspection and audit by such independent accounting firm
of ZLB Bioplasma during regular business hours at such place or places
where such records are customarily kept, upon reasonable notice to
HAE, to the extent reasonably necessary to verify the accuracy of the
reports and payments required hereunder; provided, that such
inspection and audit right shall not be exercised more than twice in
any calendar year with respect to HAE thereof. ZLB Bioplasma shall be
responsible for the cost of any such inspection and audit by an
independent accounting firm, unless such inspection and audit
disclosed for any calendar quarter examined that there shall have been
a discrepancy of greater than 5% between the royalties payable by HAE
hereunder and the royalties actually paid to ZLB Bioplasma with
respect to such calendar quarter, in which case HAE shall be
responsible for the payment of the entire cost of such inspection and
audit. ZLB Bioplasma agrees to hold confidential all information
concerning royalty payments and reports, and all information obtained
from HAE thereof in the course of any inspection or audit hereunder,
except to the extent that it is necessary for ZLB Bioplasma to
disclose such information in order to enforce its rights under this
Agreement or if required by law or any governmental authority
(including, without limitation, any stock exchange upon with ZLB
Bioplasma's shares or other securities may be traded); provided,
however, if any party shall be required by law to disclose any such
Confidential Information to any other person, such party shall give
prompt written notice thereof to the other party and impose upon any
person entitled to obtain such Confidential Information (as defined
below) such obligations of confidentiality as may be lawfully
available.
7. CONFIDENTIALITY
7.1 ZLB Bioplasma Confidentiality. ZLB Bioplasma shall keep strictly
confidential and shall not disclose to any third party any information
8
relating to the HMN Project or any proprietary or confidential
information disclosed to it by HAE hereunder, pursuant to the
Cooperation and License Agreement entered into by HAE and ZLB on March
29, 1996, or pursuant to the 1999 Agreements in writing, or orally
disclosed and confirmed in writing as being confidential promptly
after its oral disclosure, except to the extent such information:
(i) is or becomes generally available to the public through no fault
on the part of ZLB Bioplasma, or
(ii) was known to ZLB Bioplasma prior to receipt thereof as evidenced
by prior written documents in the possession of the ZLB
Bioplasma, or
(iii) is subsequently disclosed to ZLB Bioplasma in good faith by a
third party who is not under an obligation of secrecy as to the
information disclosed.
7.2 HAE Confidentiality. HAE shall keep strictly confidential and shall
not disclose to any third party any proprietary or confidential
information of ZLB Bioplasma or CSL Limited not related to the HMN
Project, except to the extent such information is deemed to be within
the exceptions of Section 7.1(i)-(iii) above.
7.3 Exception limits. For the purpose of this Agreement, specific
information shall not be deemed to be within the exceptions of Section
7.1 (i)-(iii) merely because it is embraced by general information in
the possession of the other party or in the public domain.
7.4 Third parties. The parties hereby undertake to impose the same
obligation of secrecy on their employees, contractors or agents, as
the case may be.
7.5 Former ZLB Bioplasma Employees. ZLB Bioplasma acknowledges and agrees
that past employees of ZLB Bioplasma and/or ZLB Foundation shall be
allowed to assist Haemacure regarding the Products, Devices and HMN
Project without any restrictions, and without compromising their
confidentiality agreement with ZLB.
8. REPRESENTATIONS, WARRANTIES AND INDEMNITIES
8.1 By ZLB Bioplasma. ZLB Bioplasma hereby represents and warrants to HAE
that (a) ZLB Bioplasma has full legal right and title, power and
authority to execute, deliver and perform its obligations under this
Agreement, (b) the execution, delivery and performance by ZLB
Bioplasma of this Agreement do not contravene or constitute a default
under any provision of applicable law or of any agreement, judgment,
injunction, order, decree or other instrument binding upon ZLB
Bioplasma, (c) to the best knowledge of ZLB Bioplasma, the use of ZLB
Technology by HAE does not infringe or violate any patent or other
right
9
of any person, and (d) this Agreement constitutes a valid and binding
agreement of ZLB Bioplasma, enforceable against ZLB Bioplasma in
accordance with its terms except as such enforceability may be (i)
limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' rights generally and (ii) subject to
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
8.2 By HAE. HAE hereby represents and warrants to ZLB Bioplasma that (a)
HAE has full legal right, power and authority to execute, deliver and
perform its obligations under this Agreement, (b) the execution,
delivery and performance by HAE of this Agreement do not contravene or
constitute a default under any provision of applicable law or of any
agreement, judgment, injunction, order, decree or other instrument
binding upon HAE, and (c) this Agreement constitutes a valid and
binding agreement of HAE, enforceable against HAE in accordance with
its terms except as such enforceability may be (i) limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally and (ii) subject to general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
8.3 Survival of Representations and Warranties. The representations and
warranties contained herein shall survive the execution, delivery and
performance of this Agreement by the parties, notwithstanding any
investigation at any time made by or on behalf of any party or
parties.
8.4 Indemnities. The parties shall each other at all times during and
after the term of this Agreement be responsible for, defend, indemnify
and hold each other harmless from and against any and all losses,
claims, including any current or pending or future claims, suits,
proceedings, expenses, recoveries and damages, including reasonable
legal expenses and costs including attorney's fees, arising out of any
claim by a third party:
(i) arising from any breach of a representation or warranty given
under this Agreement;
(ii) the extent such liability results from any aspect of the
performance of this Agreement or from the negligence or willful
misconduct of such party; and
(iii) for the benefit of Haemacure, arising out of ZLB Bioplasma
obligations for the HMN Project.
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9. GOVERNING LAW AND ARBITRATION
9.1 Governing Law. The validity, construction, interpretation and
performance of this Agreement shall be governed by the substantive
Laws of Switzerland expressly excluding the conflict of law rules.
9.2 Arbitration. Any or all disputes arising between the parties hereto
from or in connection with this Agreement or in respect of the
conclusion interpretation, breach or enforcement thereof shall, where
not capable of being settled amicably, be settled to the exclusion of
recourse to the ordinary courts of law finally and with binding effect
by arbitration under the Rules of the International Chamber of
Commerce by an arbitration tribunal consisting of three arbitrators
appointed in accordance with the said Rules, save that each party is
entitled as a provisional and protective measure to seek injunctive
relief from an ordinary court of law as may be possible under Canadian
or Swiss law. The foregoing shall also apply to the decision
respecting the jurisdiction of the arbitration tribunal and the
validity of this arbitration clause. Any such arbitration shall be
held in Zurich and be conducted in the English language.
10. MODIFICATIONS AND NOTICES
10.1 Modifications. No modification hereof shall be of any force or effect
unless reduced to writing and signed by the parties claimed to be
bound thereby and no modification shall be effected by the
acknowledgement or acceptance of any order containing different
conditions.
10.2 Notice. All communication notices or the like between the parties
shall be valid when made by telegraph or telex communication
subsequently to be confirmed in writing and addressed to the following
addresses:
To ZLB: ZLB BIOPLASMA AG,
Xxxxxxxxxxxxxxx 00,
0000 Xxxx 00, Xxxxxxxxxxx,
Attention: Chief Executive Officer
with a copy to: CSL Limited
00 Xxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx
Xxxxxxxxx 0000
Attention: General Counsel
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To HAE: HAEMACURE CORPORATION
One Sarasota Xxxxx
Xxx Xxxxx Xxxxxxx Xxxxx, Xxxxx 000,
Xxxxxxxx XX 00000, XXX
Attention: Chief Executive Officer
with a copy to: Xxxxx & Xxxxxxx
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxx
11. SEVERABILITY
11.1 In the event any provision of this Agreement is declared illegal or
unenforceable, it is the intent of both parties that the remaining
provisions shall continue in full force and effect and that the
illegal or unenforceable provision shall be substituted by a provision
having a similar commercial effect.
12. MISCELLANEOUS
12.1 No waiver. No waiver of any breach of any part of the terms or
conditions herein contained to be performed by the other party shall
not be construed as a waiver of any subsequent breach whether for the
same or any other term or condition hereof.
12.2 Assignment by ZLB Bioplasma. This Agreement and all rights,
liabilities and obligations hereunder shall be binding upon and inure
to the benefit of ZLB Bioplasma or any of its subsidiaries. Neither
this Agreement nor the liabilities and obligations hereunder shall be
assignable or otherwise transferable by ZLB Bioplasma without the
prior written consent of HAE, and any such purported assignment or
transfer shall be of no force or effect.
12.3 Assignment by HAE. This Agreement and all rights, liabilities and
obligations hereunder shall be binding upon and inure to the benefit
of HAE or its successor, assigns, subsidiaries or licensees under this
Agreement.
12.4 Entire Agreement. Along with the Settlement, Termination and Release
Agreement and the agreements referred to therein, this Agreement
constitutes the legal, valid, binding and enforceable obligation and
sets forth the entire understanding of the parties and supersedes and
cancels any prior communications, understandings and agreements
between the parties relating to the subject matter hereof and may not
be amended or modified except in writing executed by each of the
parties.
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12.5 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of
which together will constitute one and the same instrument.
12.6 Announcement. The parties agree that in order for the orderly and
appropriate disclosure of the terms of this Agreement and the other
documents executed herewith, neither party shall disclose the
existence or execution of these agreements until 9:00 am EST, March
13, 2002, or such earlier date as the parties may agree in writing.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized representatives as of the date first above written.
For and on behalf of Haemacure Corporation For and on behalf of ZLB
Bioplasma AG
By: /s/ Xxxx Xxxxxx By: /s/ Xxxxx Xxxxxx
-------------------------------- ------------------------------
Xxxx Xxxxxx Xxxxx Xxxxxx
President and Chief Executive Officer President
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxx Xxxxxx
-------------------------------- ------------------------------
Xxxxx X. Xxxxxxx Xxxxx Xxxxxx
Executive Vice President Secretary
and Chief Operating Officer
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