CONTINGENT LICENSE AGREEMENT
EXHIBIT
4.7
This
CONTINGENT LICENSE AGREEMENT (this “Agreement”)
is made
as of the 13th
day of
January, 2006 (the “Effective
Date”),
by and
among MATRITECH, INC. a corporation organized under the laws of the State of
Delaware (the “Licensor”),
and
SDS
CAPITAL PARTNERS SPC, LTD. (the “Licensee”),
as
collateral agent for the holders (the “Holders”)
of the
Notes (as defined below) (in such capacity, the “Collateral
Agent”).
WHEREAS,
the Licensor, Collateral Agent and Holders entered a certain Securities Purchase
Agreement dated as of January 13, 2006 (as the same may be amended, restated,
modified, supplemented and/or replaced from time to time, the “Purchase
Agreement”)
pursuant to which Licensor issued its 15% Secured Convertible Promissory Notes
to the Holders in the original aggregate principal amount of $7,000,000 (as
the
same may be amended, restated, modified, supplemented and/or replaced from
time
to time, the “Notes”);
WHEREAS,
the Licensor and Licensee entered into a Security Agreement dated as of January
13, 2006 (the “Security
Agreement”)
pursuant to which Licensor granted to Licensee a
perfected first priority security interest in certain property of Licensor
to
secure the prompt payment, performance and discharge in full of all of
Licensor’s obligations under the Notes;
WHEREAS,
Licensor is the owner of the Matritech Patent Rights and Matritech
Trademark Rights
(each as
defined below) and has the right to sublicense the MIT Patent Rights (as defined
below);
WHEREAS,
in order to induce the Licensee to purchase the Notes, Licensee wishes to
obtain, and Licensor is willing to grant to Licensee, a contingent license
under
the Matritech Patent Rights, the Matritech Trademark Rights and the MIT Patent
Rights on the terms and conditions set forth in this Agreement;
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of
which is hereby acknowledged, it is hereby agreed as follows:
1. Definitions.
(a) “Xxxxxx
License Agreement”
shall
mean the license agreement entered into by and between Xxxxxx Laboratories
and
Matritech, Inc., effective April 1, 2004.
(b) “Event
of Default”
shall
mean an Event of Default described in Sections A(i), (vi) and (vii) of Article
(VI) of the Notes.
(c) “Expiration
Date”
shall
mean the earlier to occur of the date on which (i) on a country-by-country
basis, the expiration of the last to expire of any Valid Claim included in
the
Matritech Patent Rights and the MIT Patent Rights in such country, (ii) all
principal, premium, if any, interest on the Notes, and any other amounts payable
pursuant to the terms of the Notes have been paid in full, or (iii) receipt
of
payments by the Licensee on net profits on the
sales
of
Licensed Products hereunder that equal the unpaid balance of all principal,
premium, if any, interest on the Notes, and any other amounts payable pursuant
to the terms of the Notes.
(d) “Field”
shall
mean the field of bladder cancer detection in humans.
(e) “License
Agreements”
shall
mean the MIT License Agreement and the Xxxxxx License Agreement.
(f) “Licensed
Products”
shall
mean any human bladder cancer detection product, including without limitation
the NMP22® BladderChek® Test and the NMP22® Test Kit, developed, marketed,
and/or sold by Licensee.
(g) “License
Term”
shall
mean the period commencing on the effective date of an Event of Default and
continuing until the Expiration Date.
(h) “Matritech
Patent Rights”
shall
mean the patent rights listed on Schedule
A,
and any
continuation, continuation-in-part, divisional, reexamination, or reissue
thereof, and any foreign counterpart patents and patent applications to any
of
the foregoing.
(i) “Matritech
Trademark Rights”
shall
means the trademark rights listed on Schedule
B
and the
goodwill of the business symbolized thereby, and related registrations and
applications for registration to any of the foregoing.
(j) “MIT
License Agreement”
shall
mean the license agreement entered into by and between Massachusetts Institute
of Technology (“MIT”)
and
Matritech, Inc., effective December 14, 1987 attached hereto as Schedule
F.
(k) “MIT
Patent Rights”
shall
mean the patent rights listed on Schedule
C,
and any
continuation, continuation-in-part, divisional, reexamination, or reissue
thereof, and any foreign counterpart patents and patent applications to any
of
the foregoing.
(l) “Permitted
Amendment”
shall
mean, with respect to an agreement to which Licensor is a party, any amendment,
alteration, waiver or other change of any of the terms or conditions of such
agreement in a manner that would not materially adversely affect Licensee’s
rights or obligations provided under this Agreement with respect to such
agreement.
(m) “Secured
Obligations”
shall
have the meaning set forth in the Security Agreement.
(n) “Territory”
shall
mean the entire world.
(o) “Unotech
Contract”
shall
mean the Contract and Manufacturing Arrangement entered into by and between
Unotech Diagnostics, Inc. (“Unotech”)
and
Matritech, Inc., on March 22, 2001.
(p) “Valid
Claim”
shall
mean a claim of any issued and unexpired patent within the Matritech Patent
Rights and/or the MIT Patent Rights which has not lapsed, become abandoned
or
been held revoked, invalid, or unenforceable by a decision of a court or
2
administrative
or government authority or agency of competent jurisdiction from which no appeal
can be or has been taken within the time allowed for such appeal, and which
has
not been admitted to be invalid or unenforceable through reissue, disclaimer
or
otherwise.
2. License
Grants and Restrictions.
(a) Matritech
Patent License Grant.
Subject
to (i) the terms and conditions set forth in this Agreement, (ii) any license
rights granted to Unotech under the Unotech Contract, and (iii) any license
rights, similar to those granted to Unotech under the Unotech Contract, granted
to any third party manufacturer, Licensor hereby grants to Licensee, and
Licensee hereby accepts, an exclusive, royalty-free, fully paid-up, right and
license under the Matritech Patent Rights to make, have made, use, sell, have
sold, offer for sale, have offered for sale, import and have imported Licensed
Products in each case within the Field and within the Territory during the
License Term. Licensee may sublicense, directly or indirectly (through multiple
tiers), the rights granted to Licensee under this Section 2(a)
to any
entity
or
person. The
license granted under this Section 2(a) shall
terminate effective immediately as of the Expiration Date.
(b) MIT
Patent Sublicense Grant.
Subject
to the terms and conditions set forth in this Agreement and the sections of
the
MIT License Agreement attached hereto as Schedule
D,
Licensor
hereby grants to Licensee, and Licensee hereby accepts, an exclusive, royalty
bearing, right and license under the MIT Patent Rights to make, have made,
use,
sell, have sold, offer for sale, have offered for sale, import and have imported
Licensed Products in each case within the Field and within the Territory during
the License Term. Licensee may sublicense, directly or indirectly (through
multiple tiers), the rights granted to Licensee under this Section 2(b)
to any
entity or person. The
license granted under this Section 2(b) shall
terminate effective immediately as of the Expiration Date.
(i) Licensee
agrees to be bound by the obligations to MIT set forth in the sections of the
MIT License Agreement attached hereto as Schedule
D
as if
Licensee were a party to the MIT License Agreement.
(c) Matritech
Trademark License Grant.
(i) Subject
to
the terms and conditions set forth in this Agreement, Licensor hereby grants
to
Licensee, and Licensee hereby accepts, an exclusive, royalty-free, fully
paid-up, right and license under the Matritech Trademark Rights to
use and
display the Matritech
Trademark Rights
in any
and all advertising and other promotional materials (whether in traditional
print or electronic format) relating to the marketing, advertising, promotion,
and/or selling of Licensed Products within the Field and within the Territory
during the License Term. Licensee may sublicense, directly or indirectly
(through multiple tiers), the rights granted to Licensee under this Section
2(c)
to any
entity or person. The
license granted under this Section 2(c) shall
terminate effective immediately as of the Expiration Date.
(ii) The
Licensor and Licensee hereby acknowledge that the Matritech Trademark Rights
have established goodwill, and acknowledge the importance of Licensor’s control
over the quality of Licensee’s use thereof so as to preserve the
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continued
validity of the Matritech Trademark Rights and to protect the goodwill
associated therewith. Licensee agrees that the quality of the products and
services provided by Licensee under the Matritech Trademark Rights shall equal
or exceed the standard of quality heretofore established and maintained by
Licensor with respect to the same or similar products and services. All goodwill
resulting from Licensee’s use of the Matritech Trademark Rights shall inure to
the benefit of Licensor. If Licensor determines that Licensee is using or
displaying any Matritech Trademark Rights in a manner that is or may be
detrimental to Licensor’s interest, Licensor may issue reasonable instructions
to Licensee concerning the manner, if any, in which Licensee may continue to
use
such Matritech Trademark Rights. Licensee shall promptly comply with such
instructions or cease the use or display of such Matritech Trademark
Rights.
(d) Sublicenses.
Licensee’s right to sublicense under Sections 2(a)
through
2(c)
hereunder
shall be exclusive to it and may only be made during the License Term. Prior
to
any sublicense becoming effective, Licensee shall have furnished to Licensor
a
complete copy, including all exhibits and schedules thereto, of any sublicense
granted by Licensee at least five (5) business days prior to the effective
date
of any such sublicense. Except as Licensor expressly agrees otherwise in
writing, any sublicense granted by Licensee under this Section 2(d)
hereof
shall be subject and subordinate to the terms of this Agreement, shall terminate
not later than the Expiration Date and shall provide that all rights to the
Matritech Patent Rights, MIT Patent Rights and Matritech Trademark Rights
sublicensed by Licensee to its sublicensee hereunder shall revert exclusively
to
Licensor upon the Expiration Date automatically and without further action
by
either Licensor or Licensee.
(e) Limitation.
The
licenses granted to Licensee under this Agreement do not confer any right to
practice the inventions covered by the claims of the Matritech Patent Rights
and/or the MIT Patent Rights outside of the Field. Nothing in this Agreement
shall prevent Licensor, directly or indirectly, from making, having made,
selling, having sold, offering to sell, having offered for sale, importing,
having imported, renting, and/or leasing any apparatus, systems or products
outside of the Field which practice or embody, or are configured for use in
practicing, the inventions covered by the claims of the Matritech Patent Rights
and/or the MIT Patent Rights, or practicing any method covered by the claims
of
the Matritech Patent Rights and/or the MIT Patent Rights outside of the Field.
Licensor reserves all rights not expressly granted herein.
3. Licensed
Product Marking.
To the
extent required by applicable law, Licensee agrees to xxxx each Licensed Product
and any and all associated materials with the proper patent numbers and patent
and trademark notices, including without limitation, those patent numbers and
notices that are listed on the NMP22® BladderChek® Test and the NMP22® Test Kit
as of the Effective Date.
4. Confidentiality
Obligations.
(a) “Confidential
Information”
means,
subject to the exceptions set forth in Section 4(c),
any and
all information included in or representing the Matritech Patent Rights and/or
the MIT Patent Rights and the existence of this Agreement, the terms and
conditions of this Agreement, and Schedule
F
to this
Agreement.
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(b) The
Licensee shall not disclose any Confidential Information to any third party
nor
use any Confidential Information for any purpose except as may be expressly
authorized by the Licensor in writing. Notwithstanding the foregoing, the
Licensee may disclose Confidential Information to the extent required by law
or
legal process, provided the Licensor is given reasonable prior written notice
and a reasonable opportunity to intervene to protect its interests. Licensee
hereby acknowledges that the MIT License Agreement has been filed with the
U.S.
Securities and Exchange Commission subject to a confidential treatment order
with respect to certain portions thereof. The Licensee shall not disclose any
Confidential Information pursuant to law or legal process without first
notifying the Licensee and using reasonable efforts to minimize such disclosure
and, in the case of the MIT License Agreement, to prevent the disclosure of
the
information subject to the aforesaid confidential treatment order, while such
order is in effect. The obligations of this Section 4
shall
survive the expiration or termination of this License Agreement.
(c) Information
will not be deemed Confidential Information hereunder if such information:
(a)
is known to the receiving party prior to receipt from the disclosing party
directly or indirectly from a source other than one having an obligation of
confidentiality to the disclosing party; (b) becomes known (independently of
disclosure by the disclosing party) to the receiving party directly or
indirectly from a source other than one having an obligation of confidentiality
to the disclosing party; (c) becomes publicly known or otherwise ceases to
be
secret or confidential, except through a breach of this Agreement by the
receiving party; or (d) is independently developed by the receiving
party.
(d) Notwithstanding
anything to the contrary in this Section 4,
upon
execution of this Agreement, the parties agree to execute the Notice of License
Grant attached hereto as Schedule
E,
a copy
of which may be recorded with the U.S. Patent and Trademark Office together
with
Schedules A,
B,
and
C
attached
hereto.
5. Records
and Audit Rights.
(a) Licensee
shall maintain (and cause it sublicensees to maintain) complete and accurate
records of any information which may be reasonably required by Licensor to
determine whether Licensee is complying with the terms of this
Agreement.
(b) For
the
sole purpose of determining whether Licensee is in compliance with the terms
of
this Agreement, Licensor shall have the right, at Licensor’s expense, to have an
independent auditor conduct an inspection and audit of all the relevant
accounting and sales books, records, agreements, and documents of Licensee,
during regular business hours at Licensee’s offices and in such a manner as not
to interfere unreasonably with Licensee’s normal business activities. In no
event shall such audits be conducted hereunder more frequently than every twelve
(12) months. Prior to commencing any such inspection and audit, any such
independent auditor shall have entered into an agreement with Licensor which
prohibits the disclosure of any information relating to Licensee to any party,
including Licensor, except that such auditor may issue a report to Licensor,
the
sole purpose of which shall be to report to Licensor whether Licensee is in
compliance with the terms of this Agreement, including a summary of and
sufficient detail regarding the scope, quality, and methodology of such
compliance or lack thereof.
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6. Term
and Termination.
(a) The
term
of this Agreement (“Term”)
shall
commence on the Effective Date and continue until the Expiration
Date.
(b) Upon
termination or expiration of this Agreement and except as otherwise expressly
provided herein, the licenses granted hereunder shall terminate, and any
sublicenses granted by Licensee hereunder shall terminate
simultaneously unless otherwise agreed to in writing by Licensor.
7. Prosecution,
Maintenance and Enforcement.
(a) Prosecution
and Maintenance.
Licensor
retains the sole right to prepare, file, prosecute, and maintain the patent
applications and patents included in the Matritech Patent Rights and the
trademark registrations and applications for registration included in the
Matritech
Trademark Rights.
No part
of this Agreement shall be construed to require Licensor to file any patent
or
trademark application, secure any patent or trademark registration, provide
copies of patent and/or trademark applications or patents and/or trademark
registrations to Licensee or disclose any inventions described or claimed in
such patents or patent applications. Subject to Section 7(a)(i),
Licensor
agrees to maintain the Matritech
Patent Rights and/or Matritech Trademark Rights
and
Licensor shall not abandon, transfer or license any of the Matritech
Patent Rights and/or Matritech Trademark Rights, in
each
case that cover the Licensed Products, without the prior written approval of
the
Licensee.
(i) Option
of Licensee to Prosecute/Maintain.
Licensor
shall give reasonable notice to Licensee of any desire to cease prosecution
and/or maintenance of any of the Matritech Patent Rights and/or Matritech
Trademark Rights, in each case that cover the Licensed Products, on a country
by
country basis in the Territory. In the event that Licensee wishes Licensor
to
continue prosecution of any such Matritech Patent Rights and/or Matritech
Trademark Rights, Licensee shall provide timely written instructions to Licensor
and Licensor agrees to prosecute such Matritech Patent Rights and/or Matritech
Trademark Rights at Licensor’s expense; provided,
that
Licensor shall not be obligated to prosecute any patent application and/or
trademark application included in the Matritech Patent Rights and/or Matritech
Trademark Rights in the event the Licensor determines, in its reasonable
business judgment, that the prosecution of such application is no longer
necessary or desirable in the conduct of its business as currently conducted
or
as currently proposed to be conducted. In the event that Licensee wishes
Licensor to continue maintenance of any such Matritech Patent Rights and/or
Matritech Trademark Rights, Licensee shall provide timely written instructions
to Licensor and Licensor agrees to maintain such Matritech Patent Rights and/or
Matritech Trademark Rights at Licensor’s expense.
(b) Notice.
In the
event that Licensee becomes aware of any evidence that (i) any invention which
is the subject of any patent applications and/or patents included in the
Matritech Patent Rights infringes or is alleged to infringe any third party’s
patent rights in any field of use, (ii) any patent applications and/or patents
included in the Matritech Patent Rights is infringed or is alleged to be
infringed by any third party in any field of use, (iii) any trademark
6
included
in the Matritech Trademark Rights infringes or is alleged to infringe any third
party’s trademark rights in any field of use, or (iv) any trademark included in
the Matritech Trademark Rights is infringed or is alleged to be infringed by
any
third party in any field of use, Licensee shall promptly notify Licensor in
writing of the name and address of such third party, the alleged acts of
infringement, and any available evidence of infringement.
(c) Defense
of Infringement Actions.
Licensor
shall defend any claim for patent or trademark infringement by a third party
on
account of the manufacture, sale, practice or use of any Licensed Products
at
its own expense, in its own name and entirely under its own direction and
control, or settle any such action, proceeding or dispute by license.
Notwithstanding the foregoing, no settlement of any such action or proceeding
which restricts the scope, or adversely affects the enforceability, of the
Matritech Patent Rights and/or Matritech Trademark Rights, in each case that
cover the Licensed Products, may be entered into by Licensor without the prior
written consent of Licensee, which consent shall not be unreasonably withheld,
delayed or conditioned.
(d) Enforcement
of Patent Rights.
Licensor
shall have the sole right, at its sole discretion, to bring any legal action
for
infringement of the Matritech Patent Rights and/or the Matritech Trademark
Rights or to defend any counterclaim of invalidity or action of a third party
for declaratory judgment of non-infringement or interference (“Enforcement
Actions”),
and
Licensor may bring or defend and may settle any such Enforcement Actions solely
at its own expense and through its counsel. Any recovery or proceeds of
settlement or judgment in any Enforcement Actions brought or defended by
Licensor under this Section 7(d)
shall be
shared in order, as follows: (A) Licensor shall recoup all of its reasonable
out-of-pocket costs and expenses incurred in connection with such Enforcement
Action; (B) any balance shall be applied toward the unpaid balance of all
principal, premium, if any, interest on the Notes, and any other amounts payable
pursuant to the terms of the Notes; and (C) any and all remaining balance shall
be received by Licensor.. If Licensor reasonably requests, Licensee agrees
to
become a party to and to participate in any such Enforcement Actions, and,
without limiting the generality of the foregoing, Licensor may implead Licensee
as a necessary party to any such legal action and Licensee agrees to consent
to
such joinder; provided, however that Licensee’s participation shall be at
Licensor’s expense.
(i) Option
of Licensee to Enforce.
Licensor
shall give reasonable notice to Licensee of any desire not to pursue any
Enforcement Action contemplated by Section 7(d).
In the
event that Licensee wishes Licensor to pursue such Enforcement Action, Licensee
shall provide timely written instructions to Licensor and Licensor agrees to
pursue such Enforcement Action in its own name and Licensor and Licensee will
share the costs and expenses of such Enforcement Action equally. In the event
that Licensor recovers any damages or other sums in any such action, suit or
proceeding or in settlement thereof, such damages or other sums recovered shall
be shared in order, as follows: (A) Licensee shall recoup all of its reasonable
out-of-pocket costs and expenses incurred in connection with such Enforcement
Action; (B) any balance shall be applied toward the unpaid balance of all
principal, premium, if any, interest on the Notes, and any other amounts payable
pursuant to the terms of the Notes; and (C) any and all remaining balance shall
be received by Licensor.
7
8. Representations
of Licensor.
(a) Licensor
shall not amend, restate, alter, waive or otherwise change any of the terms
and
conditions of any License Agreement without the prior written approval of
Licensee, other than pursuant to a Permitted Amendment.
(b) Licensor
represents that, the Matritech Patent Rights, Matritech Trademark Rights, MIT
Patent Rights, and the intellectual property that is the subject of the Xxxxxx
License Agreement, are the only intellectual property rights Licensor owns
or
has the right to use under any written license agreement that relate to the
Licensed Products.
9. Laws
and
Regulations.
Licensee
agrees to cause any sublicensee to agree, and in the event that Licensee
directly tests, manufactures, markets, packages, distributes or sells Licensed
Products, then Licensee agrees on behalf of itself, for the benefit of Licensor
to conduct all of its operations dealing with Licensed Products in accordance
with all applicable laws, regulations and other requirements, which may be
in
effect from time to time, of all national governmental authorities, and of
all
states, municipalities and other political subdivisions and agencies thereof,
including, without limitation the U.S. Food, Drug and Cosmetics Act, and the
regulations and other requirements of the U.S. Food and Drug Administration
and
to exercise a reasonable standard of care in the testing, manufacture,
marketing, packaging, distribution and sale of any Licensed
Product.
10. Disclaimer.
EXCEPT
AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY NOR ITS
DIRECTORS, OFFICERS, EMPLOYEES, OR AFFILIATES, MAKE ANY REPRESENTATIONS OR
WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED
TO
THE WARRANTY OF TITLE OR THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS
FOR
A PARTICULAR PURPOSE, OR NONINFRINGEMENT OR THE VALIDITY OF PATENT CLAIMS,
ISSUED OR PENDING, OR THE ABSENCE OF LATENT OR OTHER DEFECTS, WHETHER OR NOT
DISCOVERABLE. NOTHING IN THIS AGREEMENT SHALL BE CONSTRUED AS A REPRESENTATION
MADE OR WARRANTY GIVEN BY SUCH PARTY THAT THE EXERCISE BY THE OTHER PARTY OF
THE
LICENSE RIGHTS GRANTED HEREUNDER SHALL NOT INFRINGE ANY PATENT OF ANY THIRD
PARTY.
11. Limitation
of Liability.
TO THE
MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY,
ITS
DIRECTORS, OFFICERS, EMPLOYEES OR AFFILIATES BE LIABLE HEREUNDER FOR SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING ECONOMIC DAMAGE
OR
INJURY TO PROPERTY AND LOST PROFITS, REGARDLESS OF WHETHER THE OTHER PARTY
SHALL
BE ADVISED, SHALL HAVE OTHER REASON TO KNOW, OR IN FACT SHALL KNOW, OF THE
POSSIBILITY OF THE FOREGOING.
12. Section
365(n) of the Bankruptcy Code.
All
rights and licenses granted by Licensor under or pursuant to this Agreement
are,
for all purposes of Section 365(n) of Title 11 of the United States Code
(“Title
11”),
licenses of rights to “intellectual
property”
as
defined in
8
Title
11.
Licensor agrees that, in the event of the commencement of bankruptcy proceedings
by or against Licensor under Title 11, Licensee, as licensee of such rights
under this Agreement, shall retain and may fully exercise all of its rights
under this Agreement (including the licenses granted hereunder) and all of
its
rights and elections under Title 11. Without limiting the generality of the
foregoing, if this Agreement is terminated under any applicable insolvency
law,
or Licensor or an administrator refuses to further perform this Agreement (or
any of Licensor’s obligations hereunder) under any applicable insolvency law,
then Licensee may elect to retain all of its license rights under this Agreement
(including without limitation the rights described in Section 2
herein)
for the remainder of the term of this Agreement.
13. Relationship
of Parties.
Nothing
herein shall be construed to create any partnership, joint venture, agency
or
similar relationship, or to subject the parties to any implied duties or
obligations respecting the conduct of their affairs which are not expressly
stated herein. Neither party shall have any right or authority to assume or
create any obligation or responsibility, either express or implied, on behalf
of
or in the name of the other party, or to bind the other party in any matter
or
thing whatsoever.
14. Entire
Agreement.
Each
party acknowledges that it has read this Agreement, fully understands it, and
agrees to be bound by its terms and further agrees that it is the complete
and
exclusive statement of the agreement between the parties, which supersedes
and
merges all prior proposals, understandings and all other agreements, oral and
written between the parties relating to the subject matter of this Agreement.
This Agreement cannot be modified or altered except by a written instrument
duly
executed by both parties. The failure of either party to exercise in any respect
any right provided for herein shall not be deemed a waiver of any right
hereunder.
15. Severability.
If any
provision of this Agreement shall be held to be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall in no way be affected or impaired thereby. Further, the
provision that is held to be invalid, illegal or unenforceable shall remain
in
effect as far as possible in accordance with the intention of the
parties.
16. Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Delaware applicable to contracts made and to be performed in the State
of Delaware.
17. Binding
Effect and Assignment.
This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective heirs, executors, administrators, legal representatives,
successors and permitted assigns. The Licensee may assign this Agreement without
restriction, without the consent of the Licensor, and without any other
restriction; and such assignee shall have all of the rights, privileges and
benefits of this Contingent License Agreement without the need to take any
further action.
18. Notices.
Any
notice contemplated herein or required or permitted to be given hereunder shall
be made in the manner set forth in the Purchase Agreement and delivered, in
the
case of Licensee, at the addresses set forth on the signature pages to the
Purchase Agreement, or to such other address as any party hereto may have last
specified by written notice to the other party or parties.
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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 an instrument under seal
as of the date first above written.
LICENSOR
MATRITECH,
INC.
By:
/s/
Xxxxxxx X. Xxxxx
Name:
Xxxxxxx X. Xxxxx
Title:
Chief Executive Officer
LICENSEE
SDS
CAPITAL PARTNERS SPC, LTD.,
as
Collateral Agent
By:
/s/
Xxxxx Xxxxx
Name:
Xxxxx Xxxxx
Title:
Director
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