Exhibit 10.25
MASTER STRATEGIC ALLIANCE AGREEMENT
-----------------------------------
THIS MASTER STRATEGIC ALLIANCE AGREEMENT ("Agreement") is entered into
this 5th day of June, 1996 by and between HemaSure Inc., a Delaware corporation
("HEMA" or "HemaSure") and the American Red Cross BioMedical Services ("ARCBS").
INTRODUCTION
WHEREAS, ARCBS is the nation's pre-eminent provider of blood services,
serving more than 3,000 hospitals through the generous donations of some 22,000
people daily;
WHEREAS, HEMA is, among other things, in the business of developing
products to increase the safety of donated blood and to improve certain blood
collection and transfusion procedures; and
WHEREAS, ARCBS AND HEMA (collectively, the "Parties") believe that a
strategic alliance and cooperation between them would be in their mutual
interest, all in accordance with the terms and conditions hereinafter set forth,
NOW, THEREFORE, in consideration of the promises and the mutual
covenants of the Parties herein contained, it is hereby agreed as follows:
1. Scope of Agreement
1.1 The Parties' intention under this agreement is to facilitate
the development and expansion of a strategic alliance between them covering the
following areas:
(a) a collaboration in the area of pathogen inactivation for
blood components and plasma for transfusion which collaboration may include (i)
the joint completion of development and commercialization of HEMA's Steripath
product line, (ii) the availability to ARCBS of special pricing arrangements for
HEMA's existing Steripath technology, and/or (iii) a royalty arrangement between
the Parties in the case of any subsequently developed Steripath technology;
(b) a collaboration on HEMA's tumor cell filter project
(which is currently at the basic research level), which may involve a structure
similar to that used in pathogen inactivation;
(c) a contract to manufacture plasma proteins from American
Red Cross volunteer plasma intermediate fractions, co-marketing arrangement for
recombinant Factor VIII and VIIa (if and to the extent that HemaSure acquires
rights to such products), the possibility of jointly acquiring additional plasma
fractionation capacity or development of alternatives to current methods of
plasmapheresis;
(d) a co-development agreement between the Parties to
accelerate the commercialization of HEMA's second generation leukoreduction
filter in return for a royalty or special pricing arrangement in favor of ARCBS;
(e) a collaboration agreement between the Parties to develop
and produce factors for producing a hemoglobin intermediate solution; and
(f) a long-term supply agreement for the use of platelets
for an infusible platelet membrane product.
Each of the projects, collaborations, programs or agreements set forth above
shall be hereinafter referred to as a "Project".
1.2 Each Party agrees to negotiate in good faith the definitive
terms of the Projects described above as and when determined by the EC.
1.3 It is understood by the Parties that this Agreement is
intended to establish a structure of open communication and coordination so as
to facilitate the expansion of the Parties' cooperation as set forth above and
is not intended to inhibit or restrict either Party from pursuing business
opportunities outside of this Agreement where deemed appropriate by such Party.
2. Administration.
2.1 As soon as practicable after the Effective Date, the Parties
shall establish an Executive Committee ("EC") which shall remain in existence
for the term of this Agreement. The EC shall be composed of one senior
management representative of each of ARCBS and HEMA who shall initially be the
individuals set forth in Section 13 below and who shall each have full authority
to act in the name and on behalf of his or her company in all matters related to
this Agreement. The EC will maintain open communications to coordinate the
overall cooperation of the Parties hereunder. In this regard, the EC shall hold
a meeting at least once every three months to discuss:
(a) Status of any existing Projects and the status of other
business activity between the Parties;
-2-
(b) General issues of business development and strategic
cooperation between the Parties, including possible multi-party cooperative
efforts with other potential strategic partners;
(c) In each instance that a Project is undertaken, the EC
shall designate the responsibilities of each Party.
2.2 Meetings of the EC shall be held alternately between HEMA's
and ARCBS's facilities. An extraordinary meeting may be convened at any time at
the written request of either Party. The Party hosting a meeting shall prepare
the agenda and minutes for the meeting.
2.3 The decisions of the EC shall be made in writing by unanimous
vote and shall be binding on the Parties.
2.4 In such case as the EC decides to pursue a Project, it shall
establish the guidelines for the Parties' activity. Any issues that may arise
during any phase of a Project which cannot be resolved by the Project teams of
the Parties shall be referred to the EC for resolution.
3. Warrant. Prior to December 31, 1996, ARCBS may elect to receive a
warrant for the purchase of up to 400,000 shares of HemaSure Common Stock, $.01
par value per share, at a purchase price per share of $18.50 pursuant to the
conditions and schedule set forth in Exhibit A hereto (the "Warrant"). The
Warrant shall expire four years from the date of this Agreement. In the event
that ARCBS elects not to exercise its right to receive the Warrant, the Company
and ARCBS will negotiate in good faith a financial component in lieu thereof
that may be in the form of royalties on the sales of products which may be
developed jointly by the parties, a discount on the price of products which may
be purchased by ARCBS from HemaSure or such other form as mutually agreed by
HemaSure and the Company. The value of such financial component will not exceed
the value of the Warrant on the date of this Agreement. In the event that
HemaSure and ARCBS are unable to determine within 60 days after commencement of
negotiations the value of the Warrant, then the matter shall be submitted to a
panel of three independent arbitrators who are investment bankers and whose
decision as to value shall be binding. ARCBS will select one such arbitrator,
HemaSure shall select the second arbitrator, and the two so selected shall
select and designate a third arbitrator.
4. Disputes
(a) Amicable Resolution: It is the intention of the Parties to
settle amicably all differences or disputes arising from this Agreement by
conference and negotiation. The Parties
-3-
will first attempt to resolve any working level disputes through the Project
team and, if there is no resolution, through the EC. An attempt at settlement in
this manner shall be deemed to have failed when a Party informs the other Party,
in writing, of a failure to resolve the dispute at the EC level and a period of
six months elapses after such written notice without an amicable resolution.
(b) All disputes arising between the Parties hereto in connection
with this Agreement, which cannot be settled amicably and satisfactorily by them
and which attempt at settlement shall have been deemed to have failed in
accordance with Section 4(a) above, shall be subjected to non-binding mediation
reasonably satisfactory to the Parties for a period of [six months]. If
settlement has not been reached after such mediation, the dispute shall be
finally settled under the rules of arbitration of the American Arbitration
Association by one neutral arbitrator appointed under the rules of the American
Arbitration Association.
(c) The arbitration proceedings shall be conducted at a place
mutually acceptable to the Parties. If the place of arbitration cannot be agreed
upon by the Parties, arbitration shall be conducted in Boston, Massachusetts.
Each Party shall be responsible for its respective costs incurred in
arbitration, except that the costs and fees imposed by the arbitrator for his
expenses shall be borne equally by the Parties.
(d) The arbitration award rendered in accordance with this
Article will be final. Judgment upon such award may be entered in any court
having jurisdiction.
(e) In the event of a breach by either Party or any of its
obligations or undertakings under Section 8, the other Party shall be entitled
to immediate injunctive relief. Such right to injunctive relief shall be in
addition to the Parties' other rights under this Agreement.
5. Identification and Publicity. The Parties agree that, with respect
to any Project which the EC has decided to pursue hereunder, they shall be
identified in the marketplace as a team and they shall take all necessary steps
in order to enhance the image of the team and the corporate visibility of each
Party. Neither Party shall make or distribute any public announcement or media
release concerning the subject matter of this Agreement without the prior
written approval of the other Party, except as otherwise required by law.
6. Limitation of Liability and Remedies. IN NO EVENT SHALL A PARTY BE
LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL
DAMAGES, INCLUDING WITHOUT LIMITATION FOR LOSS OF ANTICIPATED PROFITS, IN
CONNECTION WITH AN
-4-
ALLEGED BREACH OF THIS AGREEMENT, HOWEVER CAUSED, BY NEGLIGENCE OR OTHERWISE;
PROVIDED THAT THE LIMITATION ON LIABILITY FOR LOSS OF PROFITS SHALL NOT APPLY IN
THE EVENT OF A WILLFUL OR GROSSLY NEGLIGENT BREACH OF THE PROVISIONS OF SECTION
8 HEREOF.
7. Relationship of the Parties. The relationship of the Parties under
this Agreement is that of independent contractors and that relationship shall
continue as such throughout the term of this Agreement. Nothing contained in
this Agreement shall be construed to constitute either Party as a partner or
agent of the other, and no officer, employee or agent of either Party shall be
deemed to be the officer, employee or agent of the other. Neither Party shall
hold itself out as a partner or agent of the other or have the authority to make
any agreement or commitment, or incur any liability on behalf of the other,
except as specifically authorized in this agreement.
8. Confidential Information. During the term of this Agreement and for
a period of seven (7) years from any termination or expiration hereof, the
Parties agree to keep in confidence and not to disclose to any third party, or
use for any purpose, except pursuant to, and in order to carry out, the terms
and objectives of his Agreement, any Confidential Information. As used herein,
"Confidential Information" shall mean all trade secrets or confidential or
proprietary information designated as such in writing by the disclosing Party,
whether by letter or by the use of an appropriate stamp or legend, prior to or
at the time any such trade secret or confidential or proprietary information is
disclosed by the disclosing Party to the receiving Party. Notwithstanding the
foregoing, information which is orally or visually disclosed to the receiving
Party by the disclosing Party, or is disclosed in writing without an appropriate
letter, stamp or legend, shall constitute Confidential Information if the
disclosing Party, within thirty (30) days after such disclosure, delivers to the
receiving Party a written document or documents describing such information and
referencing the place and date of such oral, visual or written disclosure and
the names of the employees or officers of the receiving Party to whom such
disclosure as made. The restrictions on the disclosure and use of Confidential
Information set forth in the first sentence of this Section 8 shall not apply to
any Confidential Information which (a) was known by the receiving Party (as
evidenced by the receiving Party's written records) prior to disclosure by the
disclosing Party hereunder; (b) is or becomes part of the public domain through
no fault of the receiving Party; (c) is disclosed to the receiving Party by a
third party having a legal right to make such a disclosure; or (d) is required
to be disclosed by law or legal process (provided that the other Party has
received prior notice of such intended disclosure if practicable under the
circumstances).
-5-
9. Indemnification.
HEMA agrees to indemnify and hold harmless ARCBS and its directors,
officers and employees from and against any and all losses, costs, damages, fees
or expenses arising out of the manufacture or sale of any product developed
pursuant to this Agreement provided that HEMA shall have the right to control
the defense or settlement of any claim for which ARCBS is entitled to
indemnification hereunder. HEMA shall not be liable for any litigation costs or
expense incurred by ARCBS (or its directors, officers or employees) without
HEMA's prior written consent.
10. Term and Termination.
10.1 This Agreement shall become effective upon execution by both
Parties and shall continue in full force and effect for ten years from the date
of this Agreement, unless terminated earlier by the mutual agreement of the
Parties or in accordance with the provisions herein.
10.2 Either Party shall have the right to terminate this
Agreement for "cause" at any time, by giving written notice to the other Party
in the event that the other Party:
(i) commits a noncurable default or violation of this
Agreement; or
(ii) commits a curable default or violation of this
Agreement which is not remedied within thirty (30) days after written notice
thereof.
11. Entire Agreement. This Agreement 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.
12. Successors, Assignment. This Agreement shall be binding upon, and
shall inure to, the benefit of successors to a Party hereto, but shall not
otherwise be assignable without the prior written consent of both Parties.
13. Notices.
13.1 All notices, requests, consents and other communications
under this Agreement shall be in writing and shall be delivered by hand or
telecopier or mailed by first class
-6-
certified or registered mail, return receipt requested, postage prepaid:
(i) if to HEMA, at HemaSure Inc., 00 Xxxxx Xxxxx,
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000 ((000) 000-0000), Attention: President, or at
such other address or addresses as may have been furnished in writing by HEMA to
ARCBS, with a copy to Xxxxx X. Xxxxxx, Esq., Xxxx and Xxxx, 00 Xxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000 (telecopier no. (000) 000-0000); and
(ii) if to ARCBS, at 0000 Xxxxx Xxxx Xxxxx Xxxxx, Xxxxxxx,
Xxxxxxxx 00000 (telecopier no. (000) 000-0000), Attention: Xxxxx X. Xxxxxx, Vice
President of Manufacturing, or at such other address or addresses as may have
been furnished in writing by ARCBS to HEMA.
13.2 Notices provided in accordance with this Section 12 shall be
deemed delivered upon personal delivery or two business days after deposit in
the mail.
14. Invalidity. If any provision of this Agreement is held to be
invalid, such invalidity shall not affect the validity of the remaining
provisions.
15. Expenses. Each Party shall be solely responsible for its own
expenses under this Agreement.
16. Captions. All captions herein are for convenience only and shall
not be interpreted as having any substantive meaning.
17. Governing Law. This Agreement shall be governed by the laws of the
State of Delaware.
IN WITNESS WHEREOF, the Parties have executed this Agreement effective
the date first written above.
HEMASURE INC. AMERICAN RED CROSS BIOMEDICAL
SERVICES
By:/s/ Xxxxxx X. Xxxxxxxxx By:/s/ Xxxxx X. Xxxxxx
----------------------- -------------------
Name: Xxxxxx X. Xxxxxxxxx Name: Xxxxx X. Xxxxxx
--------------------- -----------------
Title: President Title: Vice President of Manufacturing
-------------------- ---------------------------------
-7-
Exhibit A
---------
Number of Shares Exercisable
Under Warrant Upon
Project Execution of Final Agreement
------- ----------------------------
Pathogen inactivation collaboration
(subsection 1.1(a))* 40,000
Plasma contract, plasma fractionation
agreement or plasma supply agreement,
co-marketing arrangement for
recombinant factor VIII and factor
VIIa (to extent HemaSure acquires
access to such products) and
development of alternatives to
current methods of plasmapheresis
(subsection 1.1(c)) 120,000
Co-development agreement to accelerate
commercialization of leukoreduction
filters (subsection 1.1(d))* 120,000
Collaboration to develop and produce
factors for hemoglobin intermediate
solution (subsection 1.1(e))* 40,000
Platelet supply agreement for infusible
platelet membrane product (subsection
1.1(f))* 40,000
--------
* Upon mutual agreement of the Parties, these projects may be substituted for
other projects not currently contemplated by the Agreement.
-8-
