Exhibit 10.8
PATENT AND KNOW-HOW LICENSE AGREEMENT
Made and entered into on February 18, 2003, by and between
OMRIX BIOPHARMACEUTICALS LTD.
MDA Building,
Tel-Hashomer
Israel
(hereinafter - "OMRIX")
on the one part
AND
AMERSHAM BIOSCIENCES AB
Xxxxxxxxxx 00
000 00 Xxxxxxx, Xxxxxx
(hereinafter - "AMERSHAM")
on the other hand
WHEREAS OMRIX possesses certain proprietary know-how, as to the technology and
methodology required to manufacture Plasminogen Removal Gel-TA Resin (as more
fully defined below as "PLASMINOGEN RESIN"): and
WHEREAS AMERSHAM has conducted certain development work in collaboration with
OMRIX relating to the Plasminogen Resin, without such work derogating in any way
from OMRIX's intellectual property rights with respect to the Plasminogen Resin
and/or the Patent(s): and
WHEREAS OMRIX and AMERSHAM wish to enter into agreements for the manufacture of
the Plasminogen Resin by AMERSHAM, and for the distribution and sale of the
Plasminogen Resin by AMERSHAM: and
WHEREAS AMERSHAM wishes to receive from OMRIX the Know-How and the License
necessary to manufacture the Plasminogen Resin in accordance with the Know-How
and to market and sell the Plasminogen Resin worldwide, and OMRIX is willing to
give AMERSHAM the Know-How AND grant AMERSHAM the License, subject to the terms
and conditions of this Agreement
NOW THEREFORE, in consideration of the covenants and obligations hereinafter set
forth, the parties hereto agree as follows:
PORTIONS OF THIS EXHIBIT MARKED BY AN *** HAVE BEEN OMITTED PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
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1. DEFINITIONS
In this Agreement, unless context otherwise requires, the following terms
shall have the respective meanings assigned to them below:
1.1. "AFFILIATES" shall mean any person, corporation, firm, partnership or
other entity which directly or indirectly controls, owns, is owned by
or is under common ownership with a party to this Agreement to the
extent of at least fifty percent (50%) of the equity and having the
power to vote on or direct the affairs of the entity.
1.2. "AMERSHAM" shall mean AMERSHAM BIOSCIENCES AB, a Swedish corporation
and including any entity controlling, owned or controlled by AMERSHAM.
1.3. "CUSTOMERS" shall mean purchasers of Plasminogen Resin from AMERSHAM
with the exclusion of OMRIX.
1.4. "EFFECTIVE DATE" shall mean the date on which the last of the
Agreements is executed.
1.5. "IMPROVEMENTS" shall mean any additions, innovations or updates to the
existing Know-How developed, reached or obtained by OMRIX or by
AMERSHAM, which did not exist prior to the date of this Agreement and
which update, simplify or in any way improve the Know-How so as to
make it simpler, less costly or more efficient or so as to result in a
superior Plasminogen Resin.
1.6. "KNOW-HOW" shall mean and include all the information included in the
Patent(s) and all know-how, knowledge, expertise, technology,
methodology and technical information regarding Plasminogen Resin and
any use thereof, including, without limitation, advice, guidance,
directions, instructions and training, necessary to manufacture
Plasminogen Resin, that is owned, possessed or controlled by OMRIX or
licensed to OMRIX by a third party, and including Improvements.
1.7. "NET SALES" shall mean, in the case of Plasminogen Resin that is sold,
the cumulative invoice price of Plasminogen Resin in a form suitable
for sale to the Customers (regardless of non-collectible accounts)
less any (i) outbound transportation costs paid, (ii) insurance fees,
(iii) bad debts, (iv) discounts, (v) allowed allowances and credits
because of returns, or (vi) sales taxes. Such items not to be included
in the Net Sales shall be considered to amount to four percent (4%) of
the invoice price, unless AMERSHAM presents proof that the actual
amount is higher.
1.8. "OMRIX" shall mean OMRIX BIOPHARMACEUTICALS S.A., a company organized
under the laws of Belgium and including its Affiliates.
1.9. "PATENT(S)" shall mean patent application WO 02/095019designated as
"Removal of Plasminogen From protein solutions" (and any patents
granted in respect thereof) together with all foreign equivalents,
divisionals, continuations, continuations-in-part, extensions,
re-examinations and revisions (including any extensions thereof).
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1.10. "PLASMINOGEN RESIN" shall mean Plasminogen Removal Gel-TA Resin and
such other products which, by utilizing the Know-How, can be
developed, severally or collectively, as more fully described in the
Patent Application.
2. LICENSE
2.1. Subject to the terms and conditions set forth in this Agreement, OMRIX
hereby grants AMERSHAM and its Affiliates an exclusive, worldwide
license under the Patents and the Know-how to manufacture, sell, have
sold and market Plasminogen Resin (the "LICENSE"). OMRIX reserves a
right to freely use the Plasminogen Resin in its own production
processes and to grant non-exclusive licenses to Customers for the
commercial use of Plasminogel Resin as described in Section 2.3.
2.2. As long as AMERSHAM manufacture Plasminogen Resin it will sell OMRIX,
at a fair market price and in accordance with Amersham standard supply
conditions as regards lead times and delivery conditions (Conditions
of Sale, as attached). Amersham undertakes to sell up to *** litre
with *** days lead time. The parties intend to enter into a separate
supply agreement when the annual volumes exceeds *** litres. In the
event Amersham decides to stop manufacture the Plasminogen Resin it
shall give OMRIX six (6) months written notice in advance. In the
event that AMERSHAM stops supplying Plasminogen Resin for a period of
over 5 months, OMRIX will have right to terminate this Agreement
forthwith upon thirty (30) days written notice, provided AMERSHAM
fails to supply the quantity of Plasminogen Resin ordered by Omrix
within such notice period, and in addition to the provisions of
Section 14 hereto, AMERSHAM will upon written request transfer to
OMRIX all the know how specific to the manufacturing of the
Plasminogen Resin, provided OMRIX agrees to reimburse AMERSHAM for its
reasonable and verified costs in connection with such transfer (as
opposed to consideration for the know how itself). AMERSHAM shall
under no circumstances be obliged to disclose any secret manufacturing
know-how relating to other products or AMERSHAMS general manufacturing
methods.
2.3. Without prejudice to the provisions of Sections 2.1-2.2 above,
AMERSHAM undertakes to inform Customers that OMRIX owns the Patent and
all other intellectual property rights related to the Plasminogen
Resin, and that any Customer wishing to use Plasminogen Resin for any
purpose falling under any valid claims of the Patent other then for
research purposes, needs prior to such use, and as condition precedent
thereto, to (a) contact OMRIX directly, (b) sign a license agreement
with OMRIX (the "RESTRICTION NOTICE"). The Restriction Notice will be
included by AMERSHAM in its product catalogue and on its website. In
addition, an insert with the Restriction Notice shall be supplied with
all packages of Plasminogen Resin. Notwithstanding the above, Amersham
shall in no event be responsible for the Customer's use of the
Plasminogen Resin, provided that AMERSHAM is not in breach of this
Section 2.3. However, Amersham has no intention to act in breach of
applicable patent law or any court orders prohibiting any supplies to
a certain customer.
2.4. Subject to Section 2.3, AMERSHAM shall not use the name of OMRIX nor
of any of OMRIX's shareholders, directors, employees, agents, or
Affiliates, nor the name of any inventor of Plasminogen Resin, nor any
adaptation of
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such names, in any sales promotion, advertising, or any other form of
publicity without the prior written approval of OMRIX in each case.
3. APPLICATION AND OWNERSHIP OF PATENT(S)
3.1. OMRIX shall be responsible and will bear all past, present and future
costs relating to the Patent(s) and Patent(s) applications.
3.2. The parties shall in good faith mutually decide in which countries to
file Patent application(s) in the name of OMRIX, and obtain the best
possible Patent protection.
3.3 Should OMRIX decide not to file Patent(s) application in any certain
country/ies), it shall promptly notify AMERSHAM of such decision. In
such event, AMERSHAM, in addition to any other right it has, may take
all necessary measures in order to obtain the best possible Patent
protection in such country/ies and OMRIX undertakes to sign all
documents necessary to effectuate such protection.
3.4 AMERSHAM shall reimburse OMRIX for 50% of its fees and expenses
relating to all agreed activities for the prosecution and maintenance
of the Patents, provided however that AMERSHAM has been provided with
a list of elected countries for the purpose of national phase and/or a
draft of the filing so as to allow for review and approval at least
thirty (30) days in advance. AMERSHAM's obligation to reimburse OMRIX
shall not exceed 5 % of the Net Sales of the Plasminogen Resin per
calendar year.
4. DELIVERY OF KNOW-HOW
Subject to applicable laws, rules, regulations and the provisions of this
Agreement, and for the purpose of enabling AMERSHAM to more fully implement
the License, OMRIX shall deliver to AMERSHAM all its documentary materials
with respect to the Know-How, and provide AMERSHAM with reasonable
assistance in the implementation of the Know-How in its plant in Uppsala.
Nothing in this section shall require OMRIX to disclose to AMERSHAM, or
grant AMERSHAM access to, any technological information received by OMRIX
from a third party and subject to restrictions on use or disclosure.
5. RESERVATION OF RIGHTS
5.1. AMERSHAM agrees and acknowledges that the Know-How is the sole
property of OMRIX, and nothing in this Agreement shall be construed as
giving AMERSHAM any right or title to the Know-How, except for the
License as specifically detailed in this Agreement.
5.2. Except as described in Section 15.8 AMERSHAM shall not have the right
to assign and/or to transfer and/or sublicense any of its rights and
obligations under this Agreement to another or others without the
prior written consent of OMRIX.
5.3. Upon termination of this Agreement, all rights granted to AMERSHAM,
under the License, shall revert back to OMRIX, and AMERSHAM shall have
no further rights with respect to the rights ensuing from the License.
However, upon expiration of the Patents or the Agreement (not as a
result of
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early termination), AMERSHAM shall have a fully-paid up non-exclusive
license to freely use the Know-how.
6. OMRIX' WARRANTIES, REPRESENTATIONS AND DISCLAIMERS
6.1. OMRIX represents and warrants that:
6.1.1. that it has full authority to enter into this Agreement,
6.1.2. that it has no knowledge of any third party rights that would
affect its ability to grant the license hereunder,
6.1.3. that to the best of its knowledge, all information and data to
be provided to AMERSHAM is accurate and complete,
6.1.4. that the Patents to the best of its knowledge are not infringed
or attacked by any third party,
6.1.5. that the Patents are not licensed to any third party, except as
provided for in Section 2.1, and
6.1.6. it is not aware of any third party patent rights that would be
infringed by anything made, use or sold under the License.
6.2. Save for the warranties set forth in Section 6.1 nothing In this
Agreement shall be construed as:
6.2.1. a warranty or representation by OMRIX as to the validity or
scope of any right related to the Plasminogen Resin;
6.2.2. a warranty or representation that anything made, used, sold or
otherwise disposed of under the license granted in this Agreement
will or will not infringe patents of third parties;
6.2.3. an obligation to bring or prosecute actions or suits against
third parties for infringement of OMRlX's intellectual property
rights related to the Plasminogen Resin;
6.2.4. an obligation to furnish any know-how or any services other
than those specified in this Agreement.
6.3. Except as otherwise expressly set forth in this Agreement, OMRIX makes
no representation and extends no warranties of any kind, either
express or implied, including but not limited to warranties of
merchantability, fitness for a particular purpose, and validity of
patent rights claims, issued or pending. OMRIX assumes no
responsibilities whatsoever with respect to use, sale, or other
disposition by AMERSHAM or its Customers or other transferees of
products incorporating or made by use of the Know How.
7. AMERSHAM'S WARRANTIES AND REPRESENTATIONS
AMERSHAM represents and warrants that:
7.1. AMERSHAM has the full authority to enter into and to perform all of
the duties and obligations contemplated for AMERSHAM in this
Agreement.
7.2. The manufacture of Plasminogen Resin complies with all relevant laws,
regulations, ordinances and rules.
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8. RUNNING ROYALTY
As consideration for the right to use the Know How and the grant of the
License, all as set forth in this Agreement, AMERSHAM undertakes to pay to
OMRIX as earned royalties a royalty calculated as a percentage of Net Sales
in accordance with the terms and conditions of this Agreement. The royalty
is deemed earned as of the earlier of the date Plasminogen Resin is
actually sold and paid for, the date an invoice is sent by AMERSHAM, or the
date Plasminogen Resin is transferred to a third party. The royalty shall
remain fixed while this Agreement is in effect at a rate of *** of the Net
Sales in countries where the Patent is in force and *** percent in all
other countries (hereinafter the "NET SALES ROYALTY"). Until any patent has
been granted or if the application for the Patent is rejected, withdrawn or
lapsed AMERSHAM shall pay a royalty of *** percent.
9. ACCOUNTING FOR PAYMENTS
9.1. The balance of any amounts which remain unpaid more than fourteen (14)
days after they are due to OMRIX shall accrue interest until paid at
the rate of one (1%) per month, However, in no event shall this
interest provision be construed as a grant of permission for any
payment delays.
9.2. Except as otherwise directed, all amounts owing to OMRIX under this
Agreement shall be paid in U.S. dollars to OMRIX at the address
provided in the preamble to this Agreement.
9.3. A full accounting showing how any amounts payable to OMRIX under
Section 8 have been calculated shall be submitted to OMRIX on the date
of each such payment. Such accounting shall be on a per-country basis.
10. RECORD KEEPING AND REPORTS
10.1. Earned royalties shall be reported and paid by AMERSHAM on behalf of
itself and its Affiliates within sixty (60) days after each 1st March
and 1st September based on the Net Sales generated by AMERSHAM and/or
its Affiliates during the preceding six month period, Such payment
shall be made to the account specified in writing by OMRIX. The
payments due shall be accompanied by a statement showing the
assessment of royalties and shall specify for each country the
quantities and value of Products sold and the amount of returns and
credits on those returns and the amount payable for the period.
10.2. AMERSHAM shall keep books and records sufficient to verify the
accuracy and completeness of AMERSHAM's accounting referred to above,
including without limitation, inventory, purchase and invoice records,
manufacturing records, sales analysis, general ledgers, financial
statements, and tax returns relating to the Plasminogen Resin. Such
books and records shall be preserved for a period not less than four
years after they are created, both during and after the term of this
Agreement.
10.3. AMERSHAM shall take all steps necessary so that OMRIX may within
fourteen (14) days of its written request, audit, review and/or copy
all of the
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books and records to verify the accuracy of AMERSHAM's royalty
reports during the last 36 months, however not more than once per
year. Such review may be performed by a firm of independent public
accountants designated by OMRIX, upon reasonable notice and during
regular business hours. If a deficiency with regard to any payment
hereunder is determined, AMERSHAM shall pay the deficiency within
thirty (30) days of receiving notice thereof along with applicable
interest as described in Section 9.1. If a royalty payment deficiency
for a calendar year exceeds five percent (5%) of the royalties paid
for that year, then AMERSHAM shall be responsible for paying OMRIX's
out-of-pocket expenses incurred with respect to such review.
10.4. At any time during the term of this agreement, OMRIX may, but not
more than once per year, request in writing that AMERSHAM verify the
calculation of any past payments during the last 36 months owed to
OMRIX through the means of a self-audit. Within forty-five (45) days
of the request, AMERSHAM shall complete a self-audit of its books and
records to verify the accuracy and completeness of the payments owed.
Within fourteen (14) days of the completion of the self-audit,
AMERSHAM shall submit to OMRIX a report detailing the findings of the
self-audit and the manner in which it was conducted in order to verify
the accuracy and completeness of the payments owed. If AMERSHAM has
determined through its self-audit that there is any payment
deficiency, AMERSHAM shall pay OMRIX the deficiency along with
applicable interest under Section 9.1 with the submission of the
self-audit report to OMRIX.
10.5. If OMRIX determines through its review under Section 10.2 or if
AMERSHAM determines under its self-audit under Section 10.3 that there
has been an overpayment to OMRIX, OMRIX will credit the overpayment
within thirty (30) days of receiving notice thereof.
11. CONFIDENTIALITY
11.1. AMERSHAM undertakes to keep as strictly confidential all the data and
information disclosed by OMRIX which has already and which will come
to its knowledge under, pursuant or by reason of this Agreement
including, without limitation, the Patent(s), Know-How and any part
thereof, all data and information pertaining to the design,
establishment and equipment of OMRIX, and to the manufacture processes
of Plasminogen Resin and the sale and marketing thereof which is
marked as "confidential" or if disclosed orally, which is confirmed in
writing as being confidential within 30 days from disclosure,
(hereinafter collectively - "CONFIDENTIAL INFORMATION"), and not to
disclose Confidential Information to another or others nor to permit
the use or utilization thereof by another or others. OMRIX undertakes
to keep strictly confidential all the data and information disclosed
by AMERSHAM which will come to the knowledge of OMRIX or by reason of
this Agreement which is marked as "confidential'" or if disclosed
orally, which is confirmed in writing as being confidential within 30
days from disclosure (also referred to as "CONFIDENTIAL INFORMATION").
11.2. Each party further undertakes that it shall not directly or
indirectly use or utilize the other party's Confidential Information
or any part thereof except for any purposes specified in this
Agreement.
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11.3. Each party undertakes to cause each of its employees and consultants
having contact with the Confidential Information to accept a
confidentiality undertaking containing substantially the same
confidentiality obligations contained in paragraphs 11.1 and 11.2
above, and shall be responsible to the other party for any breach of
such confidentiality obligations by any of its employees and
consultants.
11.4. The confidentiality obligations shall not apply to any part of the
Confidential Information which
11.4.1. at the time of disclosure or subsequently is published or
otherwise generally available to the public other than through
any act or omission on the part of the recipient party; or
11.4.2. was in the possession of the recipient party at the time of
disclosure; or
11.4.3. was acquired from a third party who has the lawful right to
make such disclosure; or
11.4.4. is independently developed by the recipient party without
reference to or use of the materials comprising the Confidential
Information disclosed under this Agreement; or
11.4.5. is required to be disclosed by the recipient party pursuant to
a legally enforceable order, direction or other regulation but
any such disclosure shall be only so far as necessary to give
effect thereto.
11.5. Upon termination or cancellation of the License for any reason
whatsoever, all the Confidential Information of one party in the
possession of the other party, its employees and consultants,
including any copy thereof, shall be returned to the other party
immediately, save for one copy for record purposes.
11.6. The confidentiality obligations of AMERSHAM and its employees and
consultants hereunder shall survive the termination of this Agreement
for any reason whatsoever with five (5) years.
12. INFRINGEMENT, LIABILITY AND INSURANCE
In the event AMERSHAM is notified, advised or becomes aware of any
infringement of the rights of OMRIX in and to the Know-How, it shall
forthwith notify OMRIX thereof. Each of AMERSHAM and OMRIX shall, have
the right, at its sole discretion, to take all necessary measures to
protect and defend the rights of OMRIX against any such infringement,
including without limitation, the filing of claims, and shall bear all
relates costs, but shall consult with the other party before any
actions are taken or any settlements are made. Notwithstanding the
above, OMRIX shall have the exclusive right (but not obligation) to
take, at its sole discretion, all necessary measures with respect to
infringement which is not related to the manufacture of Plasminogen
Resin. In such a case, OMRIX will be solely entitled to any damages
won in such infringement claim. In any other infringement claim, the
damages won will be evenly distributed between the parties, after
deducting all reasonable costs born by the parties with respect to
such infringement claim, unless one of the parties did not provide
active assistance to the party who initiated the infringement
protection
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proceedings, where in such a case the party handling the infringement
claim will be entitled solely to any damages won in any such
infringement claim.
12.1. AMERSHAM shall be liable for, and undertakes to indemnify, defend and
hold OMRIX, its affiliates, successors and assigns, and its officers,
directors, agents, employees and shareholders harmless from any loss,
liability, expense, cost, obligation, damage or claim (including
reasonable attorney's fees) arising out of or resulting from (i) the
material breach by AMERSHAM of any representation, warranty or
covenant made by it in this Agreement and (ii) claims (including, but
not limited to, third party suits and health authority or other
regulatory proceedings) related to any negligent acts or omissions of
AMERSHAM (iii) any defects in Plasminogen Resin manufactured by
AMERSHAM (however any claims relating to supplies to OMRIX will be
governed by AMERSHAM's Conditions of Sale).
12.2. OMRIX shall be liable for, and undertakes to indemnify, defend and
hold AMERSHAM, its affiliates, successors and assigns, and its
officers, directors, agents, employees and shareholders harmless from
any loss, liability, expense, cost, obligation, damage or claim
(including reasonable attorney's fees) arising out of or resulting
from (i) the material breach by OMRIX of any representation, warranty
or covenant made by it in this Agreement and (ii) claims (including,
but not limited to, third party suits) for infringement of the claims
of the Patent(s).
12.3. The right to indemnification, as provided in section 12.2 and 12.3 is
conditioned upon the indemnified party promptly notifying the
indemnifying party thereof in writing, and allowing indemnifying party
and its insurers the opportunity to assume direction and control of
the defense against such claims, at its sole expenses, including
without limitation, the settlement thereof at the sole option of
indemnifying party or its insurers to the extent that the indemnified
party ' liability is not hereby invoked. The indemnified party will
cooperate with indemnifying party and its insurer in the disposition
of any such matter and the indemnified party will have the right to
participate in the defence of any claim to which this section applies.
12.4. AMERSHAM will maintain during the term of this Agreement liability
insurance coverage appropriate to the risk involved in producing,
manufacturing, selling, marketing, consuming, or advertising the
Plasminogen Resin. Upon ninety (90) days after written request
AMERSHAM will present evidence to OMRIX that the coverage is being
maintained. In addition, AMERSHAM shall provide OMRIX with at least
thirty (30) days prior written notice of any change in or cancellation
of the insurance coverage.
12.5. NONE OF THE PARTIES SHALL IN ANY EVENT BE LIABLE FOR ANY INDIRECT,
CONSEQUENTIAL OR PUNITATIVE DAMAGE OF ANY KIND FROM ANY CAUSE IN
RELATION TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF
PROFITS, OR GOODWILL OR BUSINESS INTERRUPTION.
13. FORCE MAJEURE
Either party shall be excused from any delay or failure in performance
hereunder caused by any war, hostilities, general military mobilization,
labour dispute, governmental requirement, act of God, earthquake, and any
other causes beyond
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its reasonable control. If such delay in performance due to such cause
shall continue for more than six (6) months the other party may terminate
this agreement upon written notice to the delayed party.
14. TERM AND TERMINATION
14.1. This Agreement shall be effective as of the Effective Date until the
expiration of the Patent. If no patent is granted this Agreement shall
expire upon the fifth anniversary of the Effective Date.
14.2. If for any reason whatsoever, AMERSHAM commits a breach of any of its
material obligations, and such breach continues uncured for more than
sixty (60) days after written notice demanding to cure the breach has
been given to AMERSHAM or such breach cannot be cured. OMRIX shall,
without prejudice to any other rights or remedy it may have in law or
equity have the right to cancel the License, whereupon AMERSHAM shall
not have the right to manufacture and/or market and sell Plasminogen
Resins and/or utilize the Know-How or any part thereof in any manner
whatsoever.
14.3. Without prejudice to any other right of Omrix, OMRIX may immediately
terminate this agreement upon the occurrence of the third separate
payment default of at least thirty (30) days by AMERSHAM within any
consecutive three year period, provided OMRIX has requested payment in
writing for each default
14.4. This Agreement may be terminated by either party:
14.4.1. at any time by giving at least sixty (60) days written notice
of such termination to the other party if AMERSHAM decides to
and/or stops manufacturing Plasminogen Resin (except for any
temporary stop, which do not affect AMERSAM's capability to
deliver the Plasminogen Resin to OMRIX),
14.4.2 if a bankruptcy petition or an application for the appointment
of a trustee, administrator or a receiver is filed against the
other party and is not dismissed or revoked within sixty (60)
days.
14.5. Upon the termination of this Agreement for any reason, nothing herein
shall be construed to release either party from any obligation that
matured prior to the effective date of such termination or from any
obligation that by its nature survives termination. AMERSHAM shall
remain obligated to provide an accounting for and to pay royalties
earned to the date of termination. AMERSHAM may, however, after the
effective date of such termination, sell all Plasminogen Resin, and
complete Plasminogen Resin in the process of manufacture at the time
of such termination and sell the same, provided that AMERSHAM shall
remain obligated to provide an accounting for and to pay running
royalties thereon.
15. MISCELLANEOUS
15.1. The parties acknowledge that, unless otherwise agreed in writing,
AMERSHAM is acting as an independent contractor and is not acting as a
partner, co-venturer or in any other joint capacity with OMRIX.
15.2. AMERSHAM shall not encumber or otherwise grant a security interest in
any of the rights granted hereunder to any third party.
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15.3. The provisions herein contained set forth the entire Agreement of the
parties with respect to the subject matter thereof, supersede all
previous communications, representations or agreements, whether oral
or written, with respect to the subject matter thereof and no addition
to or modification of this Agreement shall be binding upon either
party unless reduced to writing and duly executed by the parties
hereto in the same manner as the execution of the Agreement.
15.4. The waiver by either party of any breach or alleged breach of any
provision hereunder shall not be construed to be a waiver of any
concurrent, prior or succeeding breach of said provision or of any
other provision herein.
15.5. This Agreement shall be governed by and construed in accordance with
the laws of the English without regard to the choice of law principles
that might otherwise be applied in such jurisdiction. The Parties
expressly waive the application of the United Nation Convention of
April 11, 1980 on the International Sale of Goods as amended from time
to time. All disputes arising in connection with the Agreement shall
be finally and solely settled in London under the Rules of
Conciliation and Arbitration of the International Chamber of Commerce
by one or three arbitrators appointed in accordance with the said
Rules. The arbitration proceedings shall be conducted in the English
language. Documents may be presented in other language if accompanied
by an English translation. The procedural law of this place shall
apply where the Rules are silent. The arbitral award shall be
substantiated in writing. Any award rendered by the arbitrator(s)
shall be payable within sixty (60) days of the rendition thereof.
15.6. OMRIX and AMERSHAM hereby warrant and represent that the persons
signing this Agreement have authority to execute this Agreement on
behalf of the party for whom they have signed.
15.7. All notices and other communications required or permitted to be
given or sent hereunder shall be in writing and shall be sent by
registered mail or by fax with confirmation sent by registered mail or
delivered in person to the respective addresses of the parties as
first herein above written or as may be advised by any of the parties
in writing in due course.
15.8. None of the Parties may transfer or assign any rights or obligations
under this Agreement, however AMERSHAM shall have the right to
transfer or assign its rights and obligations to an affiliated company
and to a third party acquiror of all or substantially all of the
assets of the business to which this Agreement pertains, provided that
such third party is not a competitor of OMRIX and further provided
that OMRIX' rights hereunder shall be preserved and shall not be
harmed in any way.
IN WITNESS WHEREOF SIGNED by the parties hereto as of the day and year first
above written.
/s/ Xx. Xxxxxx Xxxxxxxx /s/ Authorized Officer
------------------------------------- ----------------------------------------
OMRIX BIOPHARMACEUTICALS LTD. AMERSHAM BIOSCIENCES AB
By: Xx. Xxxxxx Xxxxxxxx By: Authorized Officer
Title: General Manager Title: VP Bioprocess Separations
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