Exhibit 10.39
AMENDED AND RESTATED REPRESENTATION AGREEMENT
BETWEEN
NEUROMEDICAL SYSTEMS, INC.
AND
PAPNET (FAR EAST) LTD.
Dated as of September 30, 1997
This AMENDED AND RESTATED REPRESENTATION AGREEMENT (the "Third Agreement")
is made this 30th day of September 1997, by and between Neuromedical Systems,
Inc., a Delaware corporation ("NSI") and Papnet (Far East) Ltd., a Cayman
Islands corporation ("PFEL").
WHEREAS, NSI has designed, developed and produces the PAPNET Testing System
(referred to herein as, "PAPNET" or "PAPNET Testing"), which is a semi-automated
system for the review of conventionally prepared cytological specimen slides
(the "Slides");
WHEREAS, PAPNET consists of a scanning system (the "Scanner"), which
processes Slides and stores digital images of certain portions of such Slides on
a DAT tape or other digital media ("PAPNET Images"), and a proprietary review
station (the "Review Station"), which, among other things, permits a NSI-trained
cytotechnologist to review the images stored on the DAT tape or other digital
media;
WHEREAS, NSI markets and sells PAPNET Testing as a service, by which end-
user laboratories submit Slides to one of NSI's central facilities for
processing on a Scanner, and NSI returns such Slides and related DAT tape or
other digital media containing PAPNET Images to such laboratories so that NSI-
trained cytotechnologists employed by such laboratories may review the Slides
and the related PAPNET Images using a licensed or leased Review Station
(collectively referred to herein as, the "PAPNET(R) Service");
WHEREAS, NSI and PFEL are parties to an agreement dated July 13, 1993
providing for, among other things, the representation of NSI in certain markets
by PFEL and the provision of the PAPNET Service to PFEL as an end-user
laboratory (the "First Agreement");
WHEREAS, NSI and PFEL are parties to an agreement dated May 27, 1994,
amending and restating the First Agreement, and providing for, among other
things, the representation of NSI in certain markets by PFEL and the provision
of the PAPNET Service to PFEL as an end-user laboratory (the "Second
Agreement");
WHEREAS, NSI Asia Pacific Ltd., a Cayman Islands corporation and wholly
owned subsidiary of NSI ("NSI-APL"), has acquired as of June 1, 1997 all of the
issued and outstanding stock of New System International Ltd., a Hong Kong
corporation, previously a wholly owned subsidiary of PFEL, and under the terms
and conditions of the Royalty Agreement Term Sheet, dated as of June 1, 1997
(the "Royalty Agreement"), executed in connection with such acquisition, NSI and
PFEL have agreed to renegotiate the Second Agreement in accordance with the
conditions set forth therein;
WHEREAS, NSI and PFEL desire that this Third Agreement supersede and
replace the Second Agreement in accordance with the Royalty Agreement;
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NOW, THEREFORE, in consideration of the mutual promises and in
consideration of the representations, warranties and covenants herein contained,
of which the adequacy and sufficiency of such consideration is expressly
acknowledged by NSI and PFEL, the parties hereto agree as follows set forth in
this Third Agreement:
1. Representation and Marketing.
1.1 Representation Rights. Upon the terms and subject to the conditions
of this Third Agreement, NSI hereby grants to PFEL the following rights during
the Term (as defined in Section 9 herein) of this Third Agreement: The non-
exclusive right and license to market, sell and distribute the PAPNET Service
(the "Representation Rights") in Hong Kong, Taiwan and the People's Republic of
China (the "Territory").
1.2 Intellectual Property. NSI hereby grants PFEL a non-exclusive,
revocable right to use, for the limited purpose of PFEL's marketing and sale of
the PAPNET Service, the copyrights, trademarks and trade names used by NSI to
identify PAPNET or the PAPNET Service in accordance with such written
specifications as NSI may from time to time make available to PFEL. PFEL agrees
to comply with NSI's prevailing policies regarding use of NSI's copyrights,
trademarks and trade names used by NSI's distributors and representatives, as
such policies may be amended from time to time. PFEL shall not use NSI's
copyrights, trademarks or trade names in a disparaging manner. Except as
authorized in this Section 1.2, PFEL shall not otherwise use NSI's copyrights,
trademarks or trade names without the prior written approval of NSI. PFEL shall
not take any action which is inconsistent with NSI's ownership of its
copyrights, trademarks and trade names. NSI agrees to include correct
trademark, trade name, copyright, trade secrets and patent notices for the
PAPNET System and the PAPNET Service on all materials and equipment where
appropriate. PFEL shall not remove, alter, cover, obfuscate or otherwise deface
any NSI trademark, trade name, patent, trade secret or copyright notice on the
PAPNET System or any part thereof or any promotion or advertising material used
in conjunction with or for the PAPNET System or the PAPNET Service. PFEL shall
not represent that any product or system sold in conjunction with the PAPNET
System or PAPNET Service is a product manufactured or endorsed by NSI.
1.3 Nature of appointment. Nothing contained in this Third Agreement
shall (i) prohibit NSI from making, using, licensing, distributing, selling or
granting any other rights in and to PAPNET Services in the Territory or (ii)
operate to xxxxx XXXX any rights in or to any product or service offered by NSI
other than its rights expressly provided by this Third Agreement.
1.4 Field of use restriction. Except as otherwise contemplated by this
Third Agreement, PFEL shall not market, distribute, sell or license, or permit
any third party to market, distribute, sell or license, the PAPNET Service to
any third party located outside of the Territory or for any use other than uses
permitted in writing by NSI. PFEL
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shall not, or shall not permit any third party to, encourage uses of PAPNET
other than as permitted by NSI.
1.5 Regulatory approval. PFEL shall not market the PAPNET Service in a
particular jurisdiction unless and until all regulatory approvals, licenses and
permits required by such jurisdiction or any court of competent jurisdiction,
governmental body or regulatory agency (a "Governmental Body"), if any, have
been obtained. PFEL, at its sole cost and expense, shall prepare and submit any
and all appropriate applications, data and other information required by such
jurisdiction or Governmental Body to obtain all regulatory approvals, licenses
and permits in such jurisdictions. NSI shall assist PFEL in filing all required
documents with, and in obtaining any necessary approvals, permits or licenses
from, any applicable Governmental Body.
1.6 Governmental restrictions. In the event that any Governmental Body
restricts or prohibits the marketing, distribution, provision or licensing of
the PAPNET Service or PAPNET, PFEL's rights hereunder shall be subject to and
limited by any such restriction or prohibition without liability to NSI of any
type or nature except as expressly provided herein to the contrary.
1.7 Marketing Obligation. PFEL, at its expense, will develop and
implement a comprehensive marketing and sales program to promote successfully
the PAPNET Service in the Territory. PFEL will develop, on an annual basis,
market plans for each major segment of the Territory. These plans will be
subject to review by NSI. Each plan will include an outline of PFEL's strategic
objectives for the marketing of PAPNET in such Territory, as well as the
specific steps PFEL proposes to execute. PFEL may delegate its duties and
obligations of this Section 1.7, provided, however, that such delegation may be
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made only upon express written consent obtained in advance from NSI.
2. Consideration.
2.1 Consideration for Representation Rights. In consideration of the
Representation Rights granted herein, PFEL shall deliver to NSI at the execution
hereof US$800,000 (Eight Hundred Thousand United States Dollars).
3. Representations and Warranties of NSI.
NSI hereby represents and warrants to PFEL as follows:
3.1 Organization. NSI is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware. NSI has the
corporate power to own or lease its properties and assets and to carry on its
business as now conducted.
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3.2 Authority relative to this Third Agreement. NSI has the right, power
and authority to enter into this Third Agreement and to perform all of its
obligations hereunder. This Third Agreement has been authorized by all
necessary corporate action, has been duly executed and delivered and constitutes
the valid and binding obligation of NSI, enforceable in accordance with its
terms.
3.3 No Conflicts; No Consents. The execution, delivery and performance of
this Third Agreement will not result in a breach in the terms or conditions of,
or constitute a default under, or violate, or conflict with, or require, as the
case may be: (i) any provision of any law, regulation or ordinance, (ii) the
Certificate of Incorporation or Bylaws of NSI, (iii) any agreement, lease,
mortgage or other instrument or undertaking, oral or written, to which NSI is a
party or by which it or any of its properties or assets is or may be bound or
affected, (iv) any judgment, order, writ, injunction or decree of any
Governmental Body, or (v) any action of or by, or filing with, any Governmental
Body. To the knowledge of NSI, the execution and delivery of this Third
Agreement does not and, except for any approvals, permits and licenses required
to market the PAPNET Service in the Territory, the performance of this Third
Agreement will not, require any action, consent or approval of any person,
entity or Governmental Body.
3.4 Litigation. Except as disclosed in its publicly filed documents
pursuant to U.S. federal securities laws, there is no pending or, to the
knowledge of NSI, threatened, legal, administrative, arbitration or other
proceeding or governmental investigation which is likely to have a material
adverse effect on NSI or the performance by NSI of this Third Agreement.
4. Representations and Warranties of PFEL.
PFEL hereby represents and warrants to NSI as follows:
4.1 Organization. PFEL is a corporation duly organized, validly
existing and in good standing under the laws of the Cayman Islands. PFEL has
the corporate power to own or lease its properties and assets and to carry on
its business as now conducted.
4.2 Authority relative to this Third Agreement. PFEL has the right,
power and authority to enter into this Third Agreement and to perform all of its
obligations hereunder. This Third Agreement has been authorized by all
necessary corporate action, has been duly executed and delivered, and
constitutes the valid and binding obligation of PFEL, enforceable in accordance
with its terms.
4.3 No Conflicts: No Consents. The execution, delivery and performance
of this Third Agreement will not result in a breach in the terms or conditions
of, or constitute a default under, or violate, or conflict with, or require, as
the case may be: (i) any provision of any law, regulation or ordinance, (ii) the
charter and organizational documents of PFEL, (iii) any agreement, lease,
mortgage or other instrument or undertaking, oral or written, to which PFEL is a
party or by which it or any of its
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properties or assets is or may be bound or affected, (iv) any judgment, order,
writ, injunction or decree of any Governmental Body, or (v) any action of or by,
or filing with, any Governmental Body. To the knowledge of PFEL, the execution
and delivery of this Third Agreement does not, and except for any foreign
approvals, permits and licenses required to market the PAPNET Service in the
Territory, the performance of this Third Agreement will not, require any action,
consent or approval of any person, entity or Governmental Body.
4.4 Litigation. There is no pending or, to the knowledge of PFEL,
threatened, legal, administrative, arbitration or other proceeding or
governmental investigation which is likely to have a material adverse effect on
PFEL or the performance by PFEL of this Third Agreement.
5. Additional Covenants.
5.1 NSI Assurances. NSI shall cause any and all of its direct and/or
indirect subsidiaries, as the case may be, to fully perform their respective
duties and obligations under the terms of any assignment, transfer, sublicense
and/or delegation, in whole or in part, of this Third Agreement to any such
subsidiaries. NSI further covenants, and shall cause its direct and/or indirect
subsidiaries to covenant, that PFEL shall receive substantially the same
consideration as that which PFEL may receive pursuant to any assignment,
transfer, sublicense and/or delegation, in whole or in part, of this Third
Agreement, with respect to any other marketing and/or sales rights granted by
NSI, or any of its subsidiaries, to any third party for the PAPNET(R) Testing
System in any part of the Territory.
5.2 NSI and PFEL Further Assurances. Each of NSI and PFEL covenant that
they shall, at any time during the Term of this License, take any further action
that is reasonably necessary or desirable to carry out the purposes of this
Third Agreement and the transactions contemplated herein and hereby, as may be
determined in the reasonable discretion of the requesting party, and the other
party will take any and all such further action thereof, including the execution
and delivery of any further instruments and documents.
5.3 Business Practice. PFEL shall not solicit or take any action that is
designed or intended to have the effect of discouraging any PAPNET(R) Testing
System customer, supplier, or other business associate from maintaining its
business relationships with NSI or any direct or indirect subsidiary of NSI, as
the case may be, after execution hereof.
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6. Limitations on Warranties and Liability.
6.1 No warranties. Except as otherwise provided herein, neither NSI nor
PFEL makes any representations or warranties with respect to the PAPNET System
or the PAPNET Service, express or implied, including, but not limited to,
implied warranties of merchantability and fitness for a particular purpose or
that the PAPNET System or the PAPNET Service as developed and designed will met
any requirements of or will perform error free or in conformance with the needs
or requirements of PFEL or any PFEL customer.
6.2 Limitation of liability. Except as provided in Section 8 hereof,
PFEL and/or NSI, as the case may be, shall have no liability with respect to
their respective obligations under this Third Agreement or otherwise for
indirect, special, incidental, consequential, punitive or exemplary damages,
whether in contract, in tort or otherwise, including, but not limited to, loss
of use, revenue or profit, even if PFEL or NSI, as the case may be, has been
advised of the possibility of such damages. In no event shall PFEL's or NSI's
liability, as the case may be, for any reason and upon any cause of action
arising from or relating to this Third Agreement exceed the aggregate revenues
derived by PFEL or NSI, as the case may be, from this Third Agreement, or any
sublicense, assignment or delegation hereof, during the twelve month period
immediately preceding the date such cause of action was commenced; provided,
that nothing herein shall be construed to limit injunctive relief as may be
ordered by any court or arbitrator.
7. Ownership and Intellectual Property Protection.
7.1 Ownership of PAPNET System. PFEL acknowledges and agrees that NSI
is the sole and exclusive owner of all current and future worldwide patents and
patent rights, copyrights, trademarks, trade names, trade secrets, know-how,
utility models and other intellectual property rights (including without
limitation, all applications and registrations with respect thereto) in and to
the PAPNET System or the PAPNET Service (the "Intellectual Property") embodied
in the PAPNET System, all information, materials, clinical and test data reports
and filings produced in connection with any required regulatory approvals,
permits and licenses, and all information, reports, specifications, source code,
object code, documentation, diagrams, flow charts and any other tangible or
intangible materials of any type whatsoever relating to the PAPNET System and
derived or produced by any parties (collectively the "Proprietary Materials").
No provision contained in this Third Agreement shall be construed to transfer to
PFEL any title or ownership interest in the Proprietary Materials or any
Intellectual Property embodied in the PAPNET System or the PAPNET Service.
PFEL hereby irrevocably assigns, transfers and quitclaims to NSI all rights,
title and interest PFEL may at any time be deemed to have in and to the PAPNET
System and all associated Intellectual Property and Proprietary Material
thereof.
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7.2 Scope of use. PFEL shall not, and shall not permit any third party
to, (a) modify or alter, create or attempt to create, by reverse engineering or
otherwise, translate or decompile, translate or transfer, or otherwise attempt
to derive the source code, structure or algorithms of, the PAPNET System or any
part thereof, (b) use or adapt the PAPNET System or any part thereof in any way,
including using or adapting the PAPNET System or any part thereof otherwise than
in connection with the marketing or sale of the PAPNET Service, (c) use the
PAPNET System or any part thereof to create a derivative work of the PAPNET
System, or (d) rent, lease or otherwise provide temporary access to the PAPNET
System or any part thereof. Unless otherwise agreed to, in the event that NSI,
in its sole discretion, provides any modification, upgrades or enhancements to
the PAPNET System, such modifications shall become a part of, and subject to,
this Third Agreement.
7.3 Control of Intellectual Property protection. NSI shall at all times
retain the sole and exclusive right to pursue, secure, maintain, protect and
enforce its Intellectual Property in and to, or arising out of or related to,
the PAPNET System or the PAPNET Service.
7.4 PAPNET System name. NSI shall have the right in its sole discretion
to select and include any trademark or trade name to identify the PAPNET System.
7.5 Protection of Intellectual Property. PFEL shall use its best
efforts, and shall cause Clients to use their best efforts, to protect and
maintain the protection of the Intellectual Property in and to the PAPNET System
or the PAPNET Service. Upon NSI's request, PFEL shall, at NSI's sole cost and
expense, assist NSI in securing, maintaining and enforcing NSI's Intellectual
Property in and to the PAPNET System or the PAPNET Service including, but not
limited to, undertaking any and all necessary and appropriate actions in
accordance with NSI's request.
7.6 Notice of Infringement. PFEL shall promptly notify, and shall
require Clients to notify, NSI of any infringement of any Intellectual Property
of NSI with respect to the PAPNET System or the PAPNET Service. Upon reasonable
notice of infringement, NSI shall have the right, but not the obligation, to
bring any suit or action for infringement of its Intellectual Property at its
own expense. PFEL shall, if requested by NSI, actively assist in the
prosecution of such action. In the event that NSI fails to take action with
respect to such infringement within a reasonable time after notice of
infringement, PFEL shall have the right to bring any appropriate suit or action
against the infringer at PFEL's expense. In the event PFEL brings and prevails
in such infringement action, any amount recovered from the infringer, whether by
judgment, award, decree or settlement shall firstly be applied to pay for all
losses and damages suffered by PFEL together with all reasonable legal costs and
expenses incurred in such action, any balance thereafter be divided equally
between PFEL and NSI.
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8. Indemnification.
8.1 Indemnification. PFEL or NSI, as the case may be (the "Indemnifying
Party"), shall, at its sole cost and expense, indemnify and hold NSI or PFEL and
their respective directors, officers, employees, agents, representatives and
affiliates (each, an "Indemnified Party") harmless with respect to any
liabilities, damages, loses, costs and expenses, including reasonable attorney's
fees (any or all of the foregoing being hereinafter referred to as a "Loss"),
insofar as such Loss arises out of or is based upon (i) a misrepresentation or
breach (or alleged misrepresentation or breach) by the Indemnifying Party of its
warranties, covenants and agreements contained herein or (ii) a claim that the
PAPNET System or the PAPNET Service, as the case may be, as used within the
scope of this Third Agreement, infringes or violates any proprietary rights of
any third party.
8.2 Notice of claim; defense. No claim for indemnification hereunder
shall be valid unless notice of the matter which may give rise to such claim is
promptly provided to the Indemnifying Party in writing. The Indemnifying Party
shall have the exclusive right to defend against any claim and control such
defense. The Indemnified Party shall cooperate with the Indemnifying Party in
defending against such claim. In no event shall the Indemnified Party settle
any such claim, lawsuit or proceeding without the Indemnifying Party's prior
written approval.
8.3 Infringement. If, as a result of any such claim of infringement,
PFEL or NSI is permanently enjoined from selling the PAPNET Service or using the
PAPNET System, as the case may be, by a final, nonappealable decree, of a court
of competent jurisdiction, NSI at its sole option and expense, may procure for
PFEL the right to continue to sell the PAPNET Service or use the PAPNET System
that is subject to such decree or may replace or modify the PAPNET System or
PAPNET Service so that the PAPNET Service or PAPNET System is non-infringing.
The foregoing states the entire liability of PFEL or NSI, as the case may be, to
the other with respect to infringement of any proprietary rights of any third
party, and PFEL and NSI hereby expressly waive any other such liabilities that
each may have against the other and its directors, officers, employees, agents,
representatives and affiliates.
9. Term.
9.1 Term. The term of this Third Agreement shall commence on the date
first set forth above and terminate at the end of the fifteenth (15th) year from
such date (the "Term") unless terminated on an earlier date as provided below in
this Section 9.
9.2 Termination by NSI. (a) Except as otherwise permitted in writing by
NSI, this Third Agreement shall terminate automatically upon the termination of
any assignment, transfer, sublicense or delegation hereof; and (b) except as
otherwise provided, this Third Agreement may be terminated by NSI without notice
to PFEL or further action on the part of NSI, upon the occurrence of any of the
following events: (i)
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a material violation or breach by PFEL of any term or provision of this Third
Agreement not attributable to the default of NSI Asia Pacific Ltd. which is not
cured within thirty (30) days of notice of such violation; (ii) the liquidation,
dissolution, winding up or other termination, suspension, discontinuation or
failure of the business of PFEL or its efforts to market the PAPNET Service;
(iii) the insolvency of or admission by PFEL of its failure to pay debts as they
mature, the making by PFEL of an assignment for the benefit of its creditors or
the filing by PFEL of a petition in bankruptcy, the seeking by PFEL of
reorganization or arrangement with creditors or PFEL otherwise taking advantage
of any insolvency, readjustment of debt, dissolution or liquidation law of any
jurisdiction whether now or hereafter in effect; (iv) upon PFEL being declared
bankrupt or wound up by any court of competent jurisdiction; or (v) if PFEL is
enjoined at any time from marketing and distributing the PAPNET(R) Service, or
assigning, transferring and/or sublicensing its rights granted hereunder, or
delegating its duties and obligations undertaken hereby.
9.3 Termination by PFEL. This Third Agreement may be terminated by
PFEL without notice to NSI or further action on the part of PFEL, upon the
occurrence of any of the following events: (i) a material violation or breach by
NSI of any term or provision of this Third Agreement which is not cured within
30 days of notice of such violation; (ii) the liquidation, dissolution, winding
up or other termination, suspension, discontinuation or failure of the business
of NSI or its efforts to market the PAPNET Service; (iii) the insolvency of or
admission by NSI of its failure to pay debts as they mature, the making by NSI
of an assignment for the benefit of its creditors or the filing by NSI of a
petition in bankruptcy, the seeking by NSI of reorganization or arrangement with
creditors or NSI otherwise taking advantage of any insolvency, readjustment of
debt, dissolution or liquidation law of any jurisdiction whether now or
hereafter in effect; (iv) the filing of any bankruptcy petition against NSI,
which petition is not dismissed within sixty (60) days; or (v) NSI being
enjoined from licensing its representation, sales and/or distribution rights to
the PAPNET Service within the entirety of the Territory.
9.4 Survival. The termination of this Third Agreement (whether
pursuant to Section 9.2, 9.3 or upon the expiration of the Term) or any part
hereof by either party shall not relieve either party of any obligations
accruing prior to such termination. The representations, warranties, covenants
and agreements of NSI and PFEL set forth herein shall survive any such
termination.
9.5 Cessation. Upon the termination of this Third Agreement or any part
hereof (i) PFEL shall destroy any of NSI's marketing literature, packaging or
Confidential Information and all copies thereof in its possession and certify in
writing that the same have been destroyed and deliver to NSI all information as
is necessary and useful for NSI to market the PAPNET Service, (ii) PFEL shall
immediately cease representing itself as a Licensee of NSI, and (iii) the
parties shall otherwise cooperate in order to effect an orderly termination of
this Third Agreement or any part hereof.
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10. Arbitration.
Except as otherwise provided herein, the parties hereto agree that the sole
and exclusive remedy for any dispute between the parties arising out of or
relating to this Third Agreement shall be resolved by an arbitration procedure
conducted in The City of New York, Borough of Manhattan in accordance with the
rules then obtaining of the American Arbitration Association, except that the
arbitrators shall have no power to alter or modify any express provision of this
Third Agreement, or to render any award which by its terms, effects any such
alteration or modification. Judgment upon the award rendered may be entered by
any court having jurisdiction in the State of New York. If any action or
proceeding is brought to enforce the decision of the arbitrators, the prevailing
party shall be entitled to recover its reasonable attorney's fees and other
costs incident to such action or proceeding. The provisions of this Section 10
shall not affect the right of any party to seek provisional legal or equitable
remedies.
11. Miscellaneous.
11.1 Rules of Construction. As used in this Third Agreement, neutral
pronouns and any variations thereof shall be deemed to include the feminine and
masculine and all terms used in the singular shall be deemed to include the
plural, and vice versa, as the context may require. The words "hereof",
"herein" and "hereunder" and other words of similar import refer to this Third
Agreement as a whole, including the Annexes hereto, as the same may from time to
time be amended or supplemented, and not to any subdivisions contained in this
Third Agreement. The world "including" when used herein is not intended to be
exclusive and means "including, without limitation". References herein to
"dollars", "U.S.$" and "$" are to United States dollars. References herein to
Section, subsection or Annex shall refer to the appropriate Section, subsection
or Annex in or to this Third Agreement.
11.2 No adverse actions. PFEL agrees to take no action that could
materially adversely affect the business, operations or prospects of NSI.
11.3 Independent Contractors. It is expressly agreed that the parties
hereto are acting hereunder as independent contractors and not joint venturers,
and under no circumstances shall any of the employees of one party be deemed the
employees of the other for any purpose. This Third Agreement shall not be
construed as authority for either party to act for the other party in any agency
or other capacity, or to make commitments of any kind for the account of or on
behalf of the other except to the extent and for the purposes expressly provided
for and set forth herein.
11.4 Assignment; Sublicense. This Third Agreement is not assignable,
sublicensable, transferable or delegable by PFEL, in whole or in part, without
the express prior written consent of NSI. Any such permitted assignment,
sublicense, transfer or delegation of the rights, duties or obligations under
this Third Agreement shall be irrevocable except in the case of express prior
written consent of NSI. This Third
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Agreement shall be binding upon and inure to the benefit of the parties and
their respective successors and permitted assigns.
11.5 Waiver. No waiver by any party of any breach of any provision
hereof shall constitute a waiver of any other breach of that or any other
provision hereof.
11.6 Severability. If any provision of this Third Agreement is
determined by a court of competent jurisdiction to be invalid or unenforceable,
such determination shall not affect the validity or enforceability of any other
party or provision of this Third Agreement.
11.7 Choice of law. This Third Agreement and the performance hereunder
shall be governed by and construed in accordance with the laws of the State of
New York (without giving affect to principles of conflicts of laws).
11.8 Notice. All notices, invoices, consents or other communications
required or permitted to be given by either party to the other shall be in
writing (including facsimile or similar writing) and shall be given by certified
or registered mail, postage prepaid, with a copy by facsimile, as follows:
(a) If to NSI:
Neuromedical Systems, Inc.
Xxx Xxxxxxxxx Xxxxxxxxx
Xxxxxxx, Xxx Xxxx 00000-0000
Attn: Xxxx X. Xxxxxxxx, III
Co-CEO, Vice President of Corporate Development and General
Counsel
Facsimile: (000) 000-0000
(b) If to PFEL:
Papnet (Far East) Ltd.
C/O Xx. Xxxxxxx X.X. Xx, President
Papnet (Far East) Ltd.
0xx Xxxxx, Xxxxxx Xxxxx,
Xxxx Xxxxxx, PO Box 709.
Xxxxxx Town, Cayman Islands
or at such other address or facsimile number (or other similar number) as any
party may from time to time specify to the other party hereto. Any notice,
consent or other communication required or permitted to be given hereunder shall
be deemed to have been given on the date of mailing, personal delivery or
facsimile (provided the appropriate answerback is received) thereof and shall be
conclusively presumed to have been received on the second business day following
the date of mailing or, in case of personal delivery,
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the actual day of personal delivery thereof, or, in the case of facsimile
delivery, when such facsimile is transmitted, except that a change of address
shall not be affective until actually received.
11.9 Entire Agreement. This Third Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all previous agreements, proposals, both oral and written,
negotiations, representations, commitments, writings and all other
communications between the parties, including, but not limited to, the Royalty
Agreement. It may not be released, discharged, changed or modified except by an
instrument in writing signed by a duly authorized representative of each of the
parties.
11.10 Headings. The headings used in this Third Agreement are for
reference purposes only and shall not be construed to limit or further define
any term or provisions hereof.
11.11 Counterparts. This Third Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Third Agreement
by a duly authorized representative as of the date first written above.
NEUROMEDICAL SYSTEMS, INC.
By: /s/ Xxxx X. Xxxxxxxx, III
Xxxx X. Xxxxxxxx, III
Co-CEO, Vice-President of Corporate Development,
Secretary and General Counsel
PAPNET (FAR EAST) LIMITED
By: /s/ Xxxxxxx X.X. Xx, M.D.
Xxxxxxx X.X. Xx, M.D.
President
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