EXHIBIT 10.15
LIFESPAN AGREEMENT
THIS AGREEMENT, dated this 22nd day of October, 1996, is by and between
CRYO-CELL International, Inc. (hereinafter "CCEL") and GAMIDA-MEDEQUIP LTD., an
Israeli medical/hospital supply company (hereinafter "the Lifespan
Participant").
WHEREAS:
A. CCEL has developed and will lease to the Lifespan Participant a
computer-controlled Multi-Faceted Cellular Storage Unit capable of
accommodating approximately 4.5 ml. storage tubes (hereinafter "the Unit"),
for which the patent has been granted. A copy of the patent has been
forwarded to Lifespan Participant and should also be available at the
Israeli Patent Office. In addition, CCEL will provide to the Lifespan
Participant the use of the following equipment: COMPOMAT Cellular
Separation Equipment, Planer Programmable Controlled Rate Freezer, Hand
Held Vial Scanner and Thermal Transfer Label Printer (hereinafter "the
Equipment"), as well as CCEL selected manufacturer's spare parts. The Unit
and the Equipment are intended to be utilized by the Lifespan Participant
as part of a multi-faceted cellular storage technology designed to provide
cellular storage capabilities to interested parties (hereinafter "the
LIFESPAN program").
AND
B. The Lifespan Participant desires to be part of CCEL's LIFESPAN Cellular
Banking Network (hereinafter "NETWORK") and, subject to any and all
applicable laws and regulations, will cooperate by providing any reasonably
requested information to any national or international NETWORK and/or
database created by CCEL.
AND
C. The Lifespan Participant believes that its research and clinical service
missions can be enhanced by the terms of this Agreement with CCEL.
NOW, THEREFORE, in consideration of the mutual terms and conditions contained
herein, which are hereby acknowledged, the parties agree as follows:
1. CCEL will lease Units to the Lifespan Participant, together in each case
with the related Equipment. Technicians of the Lifespan Participant will be
trained in the
USA by CCEL, the Lifespan Participant meeting all costs of travel and
accommodation involved, such technicians to be responsible for starting up
each new Unit after it has been shipped to the Lifespan Participant's
designated site. It is understood that each Unit and related Equipment will
at all times remain the property of CCEL during the period of their lease
to the Lifespan Participant in accordance herewith. The terms of the first
and each subsequent such lease shall be as specified in Section 3(A) of
this Agreement.
2. It is the intention of CCEL and the Lifespan Participant that the Lifespan
Participant will charge an annual storage fee of Fifty Dollars (US $50.00)
(or an appropriate lump sum, life-time storage payment) per cellular
specimen stored in each Unit leased hereunder. Such rate of annual fee may
be revised from time to time by mutual written agreement between the
parties. All such storage fees collected by the Lifespan Participant shall
be shared between CCEL and the Lifespan Participant in the following
proportion, after first deducting ten percent (10%) of the gross income
towards operating expenses:
STORAGE FEE INCOME CCEL LIFESPAN PARTICIPANT
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up to US $1 million 50% 50%
US $1m. - 1.5 m. 45% 55%
US $1.5 m. - 2 m. 40% 60%
US $2 m. - 2.5 m. 35% 65%
above US $2.5 m. 30% 70%
The Lifespan Participant's entitlement to income as specified herein shall
be in full consideration of the efforts and costs required for the
implementation and administration of each Unit by the Lifespan Participant
as part of the LIFESPAN program, including providing all necessary space
and staff, financing operations, marketing and furnishing overall support.
3. (A) Each Unit and the related Equipment supplied to the Lifespan
Participant by CCEL hereunder shall be leased for a minimum period of ten
(10) years, but the Lifespan Participant shall be entitled to maintain the
lease in full force and effect thereafter for so long as it may require by
paying to CCEL an annual sum of One Dollar (US $1.00) and by paying CCEL
all of its financial entitlement on a timely basis. In respect of the
initial ten-year period of each lease, the Lifespan Participant shall pay
to CCEL a lease fee of Two Hundred Thousand Dollars (US
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$200,000) (hereinafter "the Lease Fee"). The Lease Fee shall be payable by
means of ten (10) equal annual installments of Twenty Thousand Dollars (US
$20,000) each, subject to interest at the rate of six percent (6%) per
annum, provided however that, after the sale by the Lifespan Participant of
a second revenue sharing agreement in Israel (as hereinafter defined), all
installments and interest outstanding for existing Units shall become due
and payable and the Lease Fee on each further Unit supplied shall be
payable in one lump sum. Subject to such proviso, the first installment
payable in respect of each Unit supplied shall be due on the second
anniversary of the date of execution of this Agreement and, in respect of
each subsequent Unit supplied, on the second anniversary of the date of
delivery by CCEL. Lifespan Participant's right to receive Unit is
contingent upon CCEL's production and distribution schedule.
(B). The Lifespan Participant is hereby granted the right during the term
of this Agreement to expand the NETWORK for the LIFESPAN program in Israel,
Israeli-administered territories and the areas of Palestinian autonomy
(including any future political denominations of such geographical
territories) (hereinafter "Israel").
In exchange for this right, the Lifespan Participant shall pay to CCEL the
sum of Three Hundred Thousand Dollars (US $300,000). Of this sum, Thirty
Thousand Dollars (US $30,000) has already been paid by the Lifespan
Participant, receipt of which CCEL hereby acknowledges. The balance of Two
Hundred and Seventy Thousand Dollars (US $270,000) shall be due on the
earlier of:
- one hundred and eighty (180) days from the date of execution of
this Agreement, of
- the sale by the Lifespan Participant of a revenue sharing
agreement, or
- the receipt by the Lifespan Participant of income from a Space &
Time Sharing ("SATS") Agreement or of equity investment amounting
in the aggregate to more than Seven Hundred and Fifty Thousand US
Dollars (US $750,000).
An initial Unit and related Equipment will not be delivered by
CCEL to the Lifespan Participant until said balance has been paid
in full.
The parties further agree to divide equally any non-storage
monies (e.g. commission, bulk leasing and SATS Program) which
Lifespan Participant shall receive from any third parties by
reason of its expansion of the NETWORK throughout Israel, it
being understood that the terms and conditions of all agreements
with third parties with respect to such expansion shall be
subject to CCEL's prior written approval.
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The right of the Lifespan Participant to expand the NETWORK in
Israel shall be and remain exclusive, so long as CCEL shall
have received Five Hundred Thousand Dollars (US $500,000) in
revenue sharing income hereunder by the third anniversary of
the date of the installation and validation of the first Unit
in Israel and provided that, thereafter, its annual income for
the next four (4) years shall increase at the rate of ten
percent (10%) per annum and for the subsequent ten (10) years
at the rate of five percent (5%) per annum.
4. In addition, CCEL shall be entitled to twenty percent (20%) of any fees
collected for donor identification and/or cellular matching as part of the
LIFESPAN program.
5. The Lifespan Participant shall be entitled to charge and collect fees for
services performed by physicians and medical staff (excluding storage fees)
and for other necessary medical/laboratory, transportation, test kit,
marketing and promotional costs, and CCEL will have no entitlement to share
in such fees.
6. Each Unit is currently designed with sufficient spaces for the storage of
approximately Thirty-Five Thousand (35,000) 5cc. Vials. Lifespan
Participant shall be entitled to use up to Five Thousand (5,000) such
spaces on a pro xxxx basis for cellular storage activities which will
enhance the need for cryo-preservation. These pro xxxx spaces may be used
for research, grants or related activities, but not paid-for commercial
cellular storage facilities. The remaining Thirty Thousand (30,000) spaces
shall be used exclusively for paid-for commercial cellular storage as part
of the LIFESPAN program. Should the configuration of the Unit change, the
number of pro xxxx spaces will be adjusted to an extent equal to
approximately fourteen percent (14%) of the total capacity.
7. The Lifespan Participant shall be responsible for invoicing, collecting and
accounting for all cellular storage revenues hereunder. Within thirty (30)
days of the end of each calendar quarter, the Lifespan Participant shall
furnish CCEL with a statement of all storage and other applicable fees
invoiced and all monies collected by the Lifespan Participant pursuant to
this Agreement during such quarter, and shall at the same time remit to
CCEL its share of all such monies collected.
8. Upon delivery of each Unit and related Equipment to the Lifespan
Participant at its designated site, CCEL shall provide to the Lifespan
participant instructional materials, including operations manuals.
9. CCEL agrees to indemnify the Lifespan Participant for all claims, suits,
judgments or damages (including court costs and attourneys' fees) arising
out of any wrongful or negligent acts of CCEL or any of its agents,
personnel and /or
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staff with regard to the LIFESPAN program, and also arising out of any
claims of persons or entities claiming licensing rights from CCEL for
Israel.
The Lifespan Participant agrees to indemnify CCEL for all claims, suits,
judgments or damages (including court costs and attourneys' fees) arising
out of any wrongful or negligent acts of the Lifespan Participant or any of
its agents, personnel and/or staff with regard to the LIFESPAN program.
CCEL will use its best efforts to have the Unit manufacturer's insurance
company name Lifespan Participant as an additional named insured on the
applicable products liability policy. Alternatively, CCEL will use its best
efforts to extend whatever coverage CCEL is entitled to under that policy
so that it also applies to and covers the Lifespan Participant.
10 CCEL will assist the Lifespan Participant by establishing storage protocols
and standard operating procedures consistent with reasonable standards of
cellular cryo-preservation, and will furnish such protocols and procedures
to the Lifespan Participant. Prior to the storage of any specimen in a
Unit, the Lifespan Participant agrees to obtain from the person(s)
submitting such specimen for storage a signed informed consent and storage
agreement, which shall be in a form previously approved by CCEL. In
addition, prior to storage, the Lifespan Participant shall be responsible
for obtaining a reasonably acceptable form of informed consent from all
relevant persons for all associated procedures of a medical and/or related
nature. Said agreement and all such forms shall comply with the laws of the
State of Israel.
11. Both parties shall use their best efforts to enhance cellular storage
activities; however, the Lifespan Participant shall be responsible for all
marketing activities.
12. A. Subject to the subsequent provisions of this Section 12, the term of
this Agreement shall commence on the date of execution of this Agreement
and shall remain in effect for an initial period of ten (10) years and
thereafter for further consecutive periods of ten (10) years each, unless
and until this Agreement shall be terminated by either party serving on the
other party not less than three hundred and sixty-five (365) days prior
written notice to such effect.
B. Notwithstanding the provisions of sub-section A, however, this
Agreement may be terminated at any time:
(a) by written mutual agreement between parties, or
(b) in the event that the Lifespan Participant shall be in material
breach of its monetary obligations to CCEL hereunder, and shall fail
to cure such breach within sixty (60) days of receipt of a written
demand.
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C. Any material failure on the part of the Lifespan Participant to pay to
CCEL in a timely manner any and all sums due to CCEL in respect of the
supply and operation of any particular Unit and related Equipment, and
then to rectify such failure within sixty (60) days of receipt of a
written demand, shall entitle CCEL forthwith to possess and retrieve
said Unit and Equipment, provided however that CCEL shall use all
reasonable efforts, in cooperation so far as possible with the
Lifespan Participant, to protect the interests of all persons for whom
specimens are stored in such Unit on a commercial basis, it being the
responsibility of the Lifespan Participant alone to make whatever
arrangements it may deem appropriate with respect to specimens
occupying pro xxxx spaces in the Unit.
13. The Lifespan Participant agrees that, provided leasing hereunder commences
as a result of the satisfaction of the condition stated in Section 3(B) and
the delivery of an initial Unit and related Equipment accordingly, then as
consideration for the leases of CCEL hereunder and its assistance in the
development of the LIFESPAN program, the Lifespan Participant shall not,
during the term of this Agreement and for a period of three (3) years
thereafter, become involved in a or support any paid-for cellular storage
program. However, subject to any and all applicable laws and regulations,
CCEL shall be entitled, throughout the term of this Agreement and
thereafter, to use the database information generated by the Lifespan
Participant.
14. CCEL and the Lifespan Participant agree that the terms and conditions of
this Agreement may be revised at any time by means of a formal written
amendment executed by both parties.
15. It is mutually agreed and understood that, in the performance of their
respective responsibilities, duties and obligations hereunder and in regard
to any services rendered or performed by either of them, the parties to
this Agreement are at all times independent contractors, and that neither
party shall have or exercise any control or direction over the method by
which the other party conducts any such performance or renders any such
services. Nothing in this Agreement shall be construed as creating a
relationship of employer and employee, principal and agent, joint venturers
or partners, or any other relationship besides that of independent
contractors. Each party agrees that it is responsible for its own acts and
omissions and declares that it is in no way responsible for the acts and
omissions of the other party.
16. This Agreement may not be assigned by the Lifespan Participant in whole or
in part without the prior written consent of CCEL (which consent shall not
be unreasonably withheld). CCEL may, however, by serving written notice
upon the Lifespan Participant to such effect, assign any or all of its
right and obligations hereunder.
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17. The failure of either party to this Agreement to enforce any material
provision of this Agreement on any occasion shall not constitute a waiver
of the right to enforce any and all of the remaining provisions of this
Agreement.
18. Any notice, acceptance, request, consent, approval or other formal
communication in connection with this Agreement shall be in writing and
served either by personal delivery or by certified mail, return receipt
requested, and shall be deemed to have been received when either personally
delivered with proof of delivery or deposited in the mail, provided that
every such communication sent by mail shall first be copied by facsimile
transmission.
For the purposes of this Agreement, CCEL's representative is:
Xxxxxx Xxxxxxx, CEO
CRYO-CELL International, Inc.
000 Xxxxxxx Xxxxx
Xxxxxx Xxxxxx, Xxxxxxx 00000 XXX
For the purposes of this Agreement, the Lifespan Participant's
representative is:
Jacob Niv, Managing Director
Gamida-MedEquip, Ltd.
00 Xxxxx Xxxxxx Xx.
Givat Savyon, Israel
(postal address: X.X. Xxx 00, Xxxxxx 00000 Israel)
In the event that different representatives or contact persons are
designated by the parties after the execution of this Agreement,
notices of the name and address of the new representative or contact
person shall in each case be served in writing in accordance herewith
and such notice attached to the originals of this Agreement.
19. This Agreement shall be governed by the laws of the State of Florida, USA,
and venue for all actions shall be in that State, County of Dade.
20. This Agreement represents the entire agreement between CCEL and the
Lifespan Participant and supersedes all representations, undertakings or
agreements, whether oral or written, made or entered into prior to the date
of execution hereof.
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IN WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto
on the date first before written.
CRYO-CELL INTERNATIONAL, INC. GAMIDA-MEDEQUIP, LTD.
by: /S/ XXXXXX X. XXXXXXX by: /S/ JACOB NIV
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Authorized Signatory Authorized Signatory
Name: XXXXXX X. XXXXXXX Name: JACOB NIV
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Title: CHAIRMAN/CEO Title: MANAGING DIRECTOR
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