PATENT SUBLICENSE AGREEMENT
THIS PATENT SUBLICENSE AGREEMENT (this "Agreement"), effective as of
December 9, 1996 (the "Effective Date"), is made and entered into by and between
CARDIOVASCULAR DIAGNOSTICS, INC., a North Carolina corporation with principal
offices at 0000 Xxxxxxxxx Xxxxx, Xxxxxxx, Xxxxx Xxxxxxxx ("CDI") and XXXXX XX, a
corporation organized under the laws of the Federal Republic of Germany with
principal offices at Knollstrasse, 0000 Xxxxxxxxxxxx, Xxxxxxx Xxxxxxxx of
Germany ("Xxxxx").
WHEREAS, Xxxxx owns or controls by exclusive worldwide license certain
"Patent Rights" (as later defined herein) pursuant to the terms of a License
Agreement with Max-Xxxxxx- Gesellschaft (the "MPG License Agreement") a copy of
which is attached hereto as Exhibit A and Xxxxx has the right to grant
sublicenses thereunder;
WHEREAS, CDI desires to use the Patent Rights in commercial
applications; and
WHEREAS, Xxxxx is willing to grant, and CDI desires to obtain, an
exclusive sublicense under the MPG License Agreement in accordance with the
terms and conditions set forth herein.
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1
DEFINITIONS
For the purposes of this Agreement, the following words and phrases
shall have the following meanings:
1.1 "Product" shall mean the technology covered by the Patent Rights
included in a CDI test card or other CDI product and a wet-chemistry based
technology as described in Xxxxx'x validation report VR-HPA-02.
1.2 "Net Sales" shall mean the aggregate invoiced sales price received
by CDI from its customers (including distributors) on Sales, less any amounts,
to the extent such amounts are included in the invoiced sales price, for: (a)
actual allowances for damages and returned goods; (b) quantity and trade
discounts actually allow and taken; (c) transportation shipping and handling
costs and insurance; (d) sales, excise, turnover, value-added and other similar
direct taxes, and (e) customs duties.
1.3 "Patent Rights" shall mean all inventions and know-how (patented,
patentable or non-patentable) and any and all intellectual property rights of
Xxxxx, either existing as of the Effective Date or subsequent thereto, relating
to a test known as
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FILED SEPARATELY WITH THE SEC.
an ecarin clotting time test, as further described by illustration on Exhibit B,
and methods and procedures for use of such device, including without limitation
all matters described, claimed or covered by (i) United States and foreign
patents listed on Exhibit C; (ii) United States and foreign patent applications;
(iii) any additions, continuations, continuations- in-part, divisionals,
reissues or extensions based on any of the foregoing patents or patent
applications; (iv) any patent or intellectual property rights obtained from any
of the foregoing patent applications; and (v) any trade secrets, know how and
other intellectual property rights relating to the above to the extent Xxxxx has
access to and control of any such Rights.
1.4 "Sale" shall mean any sale, transfer or other disposition to a
third party of technology covered by the Patent Rights which technology is
included as a component or portion of a Product.
SECTION 2
GRANT OF RIGHTS
2.1 Grant. Subject to the terms and conditions of this Agreement, Xxxxx
hereby grants to CDI a perpetual, exclusive, worldwide, royalty-bearing
sublicense, including the right to grant additional sublicenses, under the
Patent Rights to develop, make, have made, use, have used, modify, have
modified, sell and have sold the Products. Sublicenses granted by CDI to third
parties shall include terms and conditions substantially similar to terms and
conditions contained therein and shall be subject to the approval by Xxxxx which
shall not be unreasonably withheld. In addition, this sublicense, and any
sublicenses granted by CDI, shall terminate simultaneously with the termination
of the MPG License Agreement and any sublicenses granted by CDI shall terminate
simultaneously with the termination of this Agreement.
2.2 Subcontracts. The following shall not be deemed to be sublicenses
hereunder: (a) appointment of a third party (including, but not limited to, a
distributor) to market, sell, use or otherwise dispose of Products; (b)
subcontracting of a third party to develop Products; or (c) subcontracting of a
third party to manufacture Products.
2.3 Sales of Products. The exclusive worldwide license granted by Xxxxx
shall include but not be limited to, a license to sell Products to CDI's
customers and to convey to any CDI customer rights to use and resell the
Products sold to such customers by CDI.
2.4 Delivery. Promptly after the Effective Date and thereafter upon
reasonable notice, Xxxxx shall deliver to CDI all data, documentation and other
physical embodiments of the Patent Rights to the extent that Xxxxx has access to
and control of any
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such materials, together with all cooperation, assistance and access to data
reasonably requested by CDI including but not limited to visits by CDI personnel
to Xxxxx facilities. In addition, Xxxxx shall provide CDI with access to all of
its available data which CDI may require in connection with the validation and
registration of the Product.
SECTION 3
GRANT OF RIGHTS
CDI has the obligation to exclusively purchase its requirements of
ecarin standard reagent from Pentapharm until December 31, 1998 at conditions to
be agreed upon. Based on an agreement between Xxxxx and Pentapharm dated
February 15, 1996.
SECTION 4
CONSIDERATION
4.1 Royalties. In consideration for the license granted to
CDI herein, CDI shall pay to Xxxxx royalties equal to:
4.1.1 [ ] (of which [ ] remunerates the patent rights and
[ ] remunerates the Know-How of Xxxxx) for its Net- Sales in countries in
which a patent has been filed or granted and for its export from such
countries to countries without patent protection; and
4.1.2 [ ] of Net-Sales in countries where the product is
manufactured and sold by CDI or sublicensees and in which no patent is filed or
granted, but only as long as the product is the only product in the market based
on or related to the licensed technology, but in no case longer than the
validity of the US patent.
4.2 No Multiple or Cumulative Royalties. CDI shall have no obligation
to pay to Xxxxx multiple royalties because a Product, or the manufacture, use or
sale of a Product is or shall be covered in any country by more than one patent
or patent application licensed under this Agreement. In addition, the two (2)
royalty rates provided in Section 4.1 are mutually exclusive of one another and
are not cumulative; only one of such two rates shall apply to a given Sale. In
no event shall royalties payable to Xxxxx on any Sale exceed [ ] percent [ ]
of Net Sales attributed to such Sale.
4.3 Combination Product Royalties. In the event a Product is sold in
combination with other components whose manufacture, use or sale by an
unlicensed party would not constitute an infringement of the Patent Rights
("Combination Product"), Net Sales for the purpose of determining royalties
payments shall be calculated by multiplying the actual net receipts attributed
to the Combination Product by the fraction A/B, where A is the
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FILED SEPARATELY WITH THE SEC.
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invoiced sales price of the Product sold separately and B is the invoiced sales
price of the Combination Product. In the event that no separate sales of such
Product are made by CDI, Net Sales for determining royalties payments on the
Combination Product shall be calculated by reasonably allocating the actual net
receipts attributed to the Combination Product between the Product and the other
components, based upon the fair value of the components.
4.4 Term of Royalties Obligation.
4.4.1 The obligation of CDI to pay to Xxxxx royalties pursuant
to section 4.1.1 or 4.1.2 shall commence upon the receipt of revenue from the
first sale. Upon (i) expiration of the patent in a country or (ii) if the patent
in a country has been determined invalid or unenforceable by a competent court
or administrative body provident that such determination is final and unappealed
or unappealable or (iii) the parties agree that a patent is no longer valid or
(iv) upon expiration of the term mentioned in section 4.1.2, CDI shall have no
further obligation to pay the [ ] royalty to Xxxxx, but will continue to pay to
Xxxxx the [ ] Know-How royalty as long as the product is sold anywhere in the
world.
4.5 Payments of Sublicensees. In case CDI receives from its
sublicensees a down payment or other form of remuneration made in connection
with the grant of sublicense rights and not for work to be performed by CDI, and
except for royalties, CDI shall transfer [ ] of such payment to Xxxxx.
SECTION 5
ROYALTY PAYMENTS AND ACCOUNTING
5.1 Royalty Statement and Payments. Within sixty (60) days
after the end of each calendar quarter during the term of this
Agreement, CDI shall deliver to Xxxxx:
5.1.1 A statement showing the basis for the royalty payment
due for such quarter, including but not limited to: (i) the number of Sales
during the reporting period; (ii) the invoiced sales price for all Sales during
the reporting period; (iii) the total Net Sales during the reporting period; and
(iv) any royalties due Xxxxx pursuant to Section 4 for the reporting period. In
the event that no royalty is due for any calendar quarter during the term of
this Agreement, CDI shall so report; and
5.1.2 Payment in United States dollars of the amount of
royalties due Xxxxx based on CDI's statement required under Section 5.1.1.
5.2 Audit Rights. Xxxxx shall be entitled to retain, at
Xxxxx'x expense, an independent accounting firm acceptable to CDI
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FILED SEPARATELY WITH THE SEC.
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to conduct one (1) audit per calendar year of CDI's books and records of account
for payments made within twelve (12) months of such audit, regarding royalties
payable to Xxxxx for the sole purpose of verifying the accuracy of such
payments, such audit to be conducted during CDI's normal business hours and
after ten (10) days written notice. The accounting firm shall report to Xxxxx
only whether there is a royalty underpayment and, if so, the amount thereof. In
the event such accounting firm reports to Xxxxx that there is a royalty
underpayment, CDI shall promptly remit to Xxxxx all amounts due, including
interest on such underpayment from the date due until paid at the prime rate of
interest quoted in the Wall Street Journal for such period plus [ ] percent
[ ]. If the results of such audit indicate that CDI has under paid its royalty
obligation by [ ] percent [ ] or more for any 12 month period examined, CDI
shall bear the expense of such audit.
SECTION 6
REPRESENTATIONS, WARRANTIES AND INDEMNIFICATION
6.1 Representations and Warranties.
6.1.1 Xxxxx represents and warrants that: (i) Xxxxx is the sole and
exclusive owner or licensor with right to sublicense the Patent Rights; (ii)
Xxxxx has not previously granted, and will not grant to any third party during
the term of this Agreement, any rights under the Patent Rights; and (iii) Xxxxx
has full power, right and authority to grant the rights and licenses granted in
this Agreement.
6.1.2 CDI represents and warrants that CDI has full power, right and
authority to enter into and carry out its obligations under this Agreement.
6.2 Limitation. EXCEPT FOR THE EXPRESS WARRANTIES IN THIS SECTION 6,
XXXXX MAKES NO WARRANTIES FOR THE PATENT RIGHTS OR PRODUCTS, EXPRESS OR IMPLIED,
EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, AND XXXXX
SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR WARRANTY OF
FITNESS FOR A PARTICULAR PURPOSE.
6.3 Indemnification.
6.3.1 Xxxxx hereby agrees to defend and indemnify CDI against,
and hold CDI harmless from, any loss, cost, liability or expense (including
court costs and reasonable fees of attorneys and other professionals) arising
out of or in connection with a breach of Xxxxx'x representations and warranties
in Section 6.1.1 above, provided that: (i) Xxxxx shall have sole control of such
defense provided, however, if Xxxxx fails to take control, CDI shall have the
right but not the obligation to do so, and (ii) CDI shall provide notice
promptly
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AND FILED SEPARATELY WITH THE SEC.
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to Xxxxx of any actual or threatened claim of which CDI becomes aware. In the
event of any such claim, CDI shall provide Xxxxx, at Xxxxx'x expense,
information and assistance as Xxxxx may reasonably request for purposes of
defense.
6.3.2 CDI hereby agrees to defend and indemnify Xxxxx against,
and hold Xxxxx harmless from, any loss, cost, liability or expense (including
court costs and reasonable fees of attorneys and other professionals) arising
out of or in connection with CDI's Manufacture, use or sale of the Products,
excluding claims covered by Section 6.3.1 above; provided that: (i) CDI shall
have sole control of such defense and (ii) Xxxxx shall provide notice promptly
to CDI of any actual or threatened claim of which Xxxxx becomes aware.
SECTION 7
CONFIDENTIALITY
7.1 General. Except as otherwise expressly provided in this Agreement,
each party shall hold in strict confidence and not use or disclose to any third
party (other than employees, consultants and advisors who are similarly bound in
writing) any product, technical, manufacturing, process, marketing, financial,
business or other information, ideas or know-how identified in writing as
confidential ("Confidential Information") of or used by the other party;
provided, however, that Confidential Information of a party shall not include:
7.1.1 Information which at the time of disclosure
was previously known to the receiving party as demonstrated by
written records;
7.1.2 Information which at the time of disclosure
is published or otherwise generally available to the public; or
7.1.3 Information which, after disclosure by the other party,
is published or otherwise becomes generally available to the public through no
breach of this Agreement by the receiving party.
7.2 Exceptions. A party may disclose Confidential
Information of the other:
7.2.1 In connection with the order of a court or other
governmental body; provided, however, that written notice is provided promptly
to the other party to enable the other party to seek a protective order or
otherwise prevent disclosure of such information;
7.2.2 As required by or in compliance with laws or
regulations; provided, however, that written notice is provided promptly to the
other party to enable the other party to seek a
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protective order or otherwise prevent disclosure of such
information;
7.2.3 In confidence, to accountants, banks and
financing sources and their advisors; or
7.2.4 In confidence, in connection with a merger or
acquisition or proposed merger or acquisition, or the like.
7.3 Terms of this Agreement. CDI and Xxxxx agree to not disclose the
financial terms or conditions of this Agreement to any third party without the
prior written consent of the other party, except as may be required by law. Each
party shall use reasonable efforts to provide the other party with five (5) days
advance notice of any disclosure required by law where the disclosure could have
an adverse impact on the rights of a party hereunder.
7.4 Remedies. Any breach of the restrictions contained in this Section
7 is a breach of this Agreement which will cause irreparable harm to the
non-breaching party entitling such non- breaching party to injunctive relief in
addition to all legal remedies.
SECTION 8
PATENT PROSECUTION, ENFORCEMENT AND DEFENSE
8.1 Patent Prosecution.
8.1.1 Xxxxx shall bear the principal responsibility for and
shall file and prosecute all patent applications and maintain all patents within
the Patent Rights in the United States of America and in foreign countries;
provided, however, that Xxxxx shall consult with CDI before initiating or
ceasing any filing within the Patent Rights. Xxxxx shall keep CDI reasonably
informed of the status of the patents and applications within the Patent Rights.
In the event that Xxxxx elects to not file any patent application or ceases
prosecution of any patent application or maintenance of any patent within the
Patent Rights, Xxxxx shall inform CDI in due time, and CDI shall have the right,
but not an obligation, to file such patent applications, prosecute such patent
application or maintain such patent within the Patent Rights.
8.1.2 Payment of all costs and expenses relating to the
filing, prosecution, and maintenance of the Patent Rights in the United States
and in foreign jurisdictions after the Effective Date shall be the
responsibility of Xxxxx, provided that upon reimbursement of such costs and
expenses to Xxxxx by CDI, CDI may then deduct such amounts from the amounts
owing to Xxxxx under Section 4. Notwithstanding the above, CDI shall not be
obligated to reimburse Xxxxx costs and expenses relating to
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the filing or prosecution of any patent application or maintenance of any patent
within the Patent Rights in countries where CDI reasonably objects to such
filing, prosecution or maintenance. In any country where CDI fails to reimburse
Xxxxx fees and costs relating to filing or prosecution of a patent application
or maintenance of a patent within the Patent Rights, CDI's rights and license
under this Agreement in such country shall terminate six (6) months after
receipt by CDI of the initial request by Xxxxx for reimbursement where the
reimbursement is made by CDI within such six (6) month period. Reimbursement due
Xxxxx pursuant to this Section 8.1.2 shall be paid by CDI within thirty days
(30) (but not later than one hundred eighty (180) days) of CDI's receipt of
Xxxxx'x itemized invoice.
8.2 Patent Enforcement. During the term of this Agreement, CDI shall
notify Xxxxx promptly in writing of any alleged infringement by a third party of
the Patent Rights exclusively licensed to CDI under this Agreement, and provide
Xxxxx any available evidence thereof. In the event that Xxxxx fails to cause any
infringement to terminate, or fails to initiate suit or action to xxxxx any
infringement, within ninety (90) days after receipt of CDI's written notice of
such infringement, or in the event that Xxxxx discontinues the prosecution of
any such suit or action after commencement thereof, CDI may, effective as of the
date of such failure or discontinuance, at CDI's sole option, implement any or
all of the following rights and remedies:
8.2.1 Withhold an amount equal to the difference between the
royalty due to Xxxxx hereunder and the royalty payable by Xxxxx under the MPG
License Agreement during the period from the commencement of such infringement
until such infringement is terminated by court judgment or otherwise; and
8.2.2 Initiate and prosecute, or continue prosecution of, at
CDI's own cost and expense, any such suit or action, in which event upon CDI's
request, Xxxxx shall make available to CDI all information in Xxxxx'x possession
and provide CDI with assistance reasonably necessary to permit CDI to bring and
prosecute, or continue prosecution of, such suit or action. CDI shall be
entitled to retain for CDI any recovery realized as a result of a suit, action
or other proceeding initiated and prosecuted by CDI to enforce the Patent Rights
without obligation to Xxxxx.
8.3 Patent Defense. During the term of this Agreement, CDI shall notify
Xxxxx promptly in writing of any claim asserted against CDI by any third party
alleging infringement of any patent owned by such third party in connection with
CDI's manufacture, use or sale of Products. Notwithstanding anything herein to
the contrary, if, during the term of this Agreement, the manufacture, use or
sale of Products by CDI under any issued and valid patent within the Patent
Rights would infringe any patent owned by a third party, CDI shall have the
right to deduct
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from the royalties payable to Xxxxx under Section 4 an amount equal to the
difference between the royalty due hereunder and the royalty payable by Xxxxx
under the MPG License Agreement.
8.4 Cooperation. In any suit, action or other proceeding in connection
with enforcement and/or defense of the Patent Rights, Xxxxx and CDI shall
cooperate fully, and upon the request and, at the expense of the party
initiating and prosecuting such suit, action or other proceeding, the other
party shall make available to such party at reasonable times and under
appropriate conditions all relevant personnel, records, papers, information,
samples, specimens and other similar materials in such other party's possession.
SECTION 9
TERM AND TERMINATION
9.1 Term. The term of this agreement shall commence on the effective
date and shall continue in full force and effect as long as CDI or its
sublicensees manufacture and market the product anywhere in the world, unless
terminated prior to such date pursuant to this section 9.
9.2 Termination for Cause. Either party shall have the right to
terminate this Agreement following any material breach or default in performance
under this Agreement by the other party upon thirty (30) days prior written
notice by certified mail to the breaching party specifying the nature of the
breach or default. Unless the breaching party has cured the breach or default
prior to the expiration of such thirty (30) day period, or such breaching party
has initiated good faith efforts to cure any such breach which the party is
unable to cure within such thirty-day period, and during the period that such
efforts continue no termination may be declared, the non-breaching party, at its
sole option, may terminate this Agreement upon written notice to the breaching
party. Termination of this Agreement shall become effective upon receipt of such
notice by the breaching party. Xxxxx shall have the right to terminate this
agreement forthwith by giving six (6) months previous notice in case CDI is not
actively pursuing to sell one/or the other technology-based product (wet/or dry
chemistry) within eighteen (18) months after approval of the first direct
thrombin inhibitor in North America or the EC, unless such failure is due to
regulatory problems beyond the control of CDI.
9.3 Effect of Termination. In case Xxxxx terminates this agreement
forthwith according to section 9.2 CDI shall transfer to Xxxxx or a third party
designated by Xxxxx all product registrations and shall be entitled to sell
remaining stock of the product during a term of six months after the expiration
of the agreement unless Xxxxx or a third party designated by Xxxxx purchases
such stock at CDI's cost price.
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9.4 Survival. The following sections shall survive
expiration or termination of this Agreement for any reason:
Sections 5, 6, 7 and 10.
SECTION 10
GENERAL PROVISIONS
10.1 Development. The parties acknowledge that the technology
underlying the Patent Rights requires additional development on the part of CDI.
CDI acknowledges that it shall bear all development risk and cost associated
with the development and commercialization of the Product. CDI shall use
commercially reasonable efforts to exploit the Product where such exploitation
is commercially feasible to do so. Consequently, CDI will use commercially
reasonable efforts to file product registrations in the countries in which
direct thrombin inhibitors are approved or under clinical development provided,
however, CDI shall have [ ] months to complete such filing subsequent to
the date that CDI and Xxxxx agree that CDI is in receipt of all data relating to
the drug necessary to complete CDI's registration for the country where the drug
approval has been granted.
CDI and Xxxxx acknowledge that CDI may have tactical, technical or
economic reasons for not completing any such filing and CDI shall provide Xxxxx
notice of any such reasons within a reasonable period of time after any such
decision is made by CDI.
In the event that CDI does not have a tactical, technical or economic
reason for failing to complete a filing in a country where Xxxxx has revised
PEG-hirudin drug approval, the parties shall negotiate in good faith with
respect to each such country.
CDI shall provide Xxxxx with a semi-annual written report of its
product development activities, product registration activities and business
development activities relating to the product, to the extent such disclosures
are permitted under any nondisclosure agreements entered into by CDI with its
collaborating, strategic or other corporate partners. CDI and Xxxxx shall
cooperate with one another in the registration process, and CDI may request
Xxxxx to attend regulatory meetings with governmental regulatory agencies.
10.2 Further Assurance. During the term of this Agreement, and at any
time or from time to time on and after the Effective Date, Xxxxx shall at the
request of CDI: (i) deliver to CDI such records, data or other documents
consistent with the provisions of this Agreement, (ii) execute, and deliver or
cause to be delivered, all such assignments, consents, documents or further
instruments of transfer or license, and (iii) take or cause to be taken all such
other actions, as CDI may reasonably deem
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AND FILED SEPARATELY WITH THE SEC.
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necessary or desirable in order for CDI to obtain the full benefits of this
Agreement and the transactions contemplated hereby.
10.3 Governing Law. This Agreement shall be governed by,
and construed and interpreted in accordance with, the laws of the
Federal Republic of Germany, without reference to conflict of
laws principles or statutory rule of arbitration.
10.4 Arbitration. All disputes arising in connection with this
Agreement shall be settled according to the Rules of Conciliation and
Arbitration of the Zurich Chamber of Commerce. If such settlement cannot be
achieved the dispute shall be submitted to the arbitration Court of the Zurich
Chamber of Commerce for final decision according to the aforesaid Rules of
Conciliation and Arbitration.
10.5 Force Majeure. Neither party shall be liable for any loss, damage
or penalty resulting from delays or failures in performance resulting from acts
of God and other causes beyond its control. Each party agrees to notify the
other promptly of any circumstance delaying its performance and to resume
performance as soon thereafter as is reasonably practicable.
10.6 Assignment. The parties agree that their rights and obligations
under this Agreement may not be transferred or assigned to a third party without
the prior written consent of the other party hereto. Notwithstanding the
foregoing, CDI may transfer or assign its rights and obligations under this
Agreement to a successor to all or substantially all of its business or assets
relating to this Agreement whether by sale, merger, operation of law or
otherwise.
10.7 Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE
FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES ARISING IN ANY
WAY OUT OF THIS AGREEMENT, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY. THIS
LIMITATION WILL APPLY EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
10.8 No Third Party Beneficiaries. Xxxxx and CDI intend that only Xxxxx
and CDI will benefit from, and are entitled to enforce the provisions of, this
Agreement and that no third party beneficiary is intended under this Agreement.
10.9 Modifications. No modification to this Agreement, nor any waiver
of any rights, shall be effective unless assented to in writing by the party to
be charged and the waiver of any breach or default shall not constitute a waiver
of any other right hereunder or any subsequent breach or default.
10.10 Notices. Any required notices hereunder shall be
given in writing at the address of each party set forth above, or
to such other address as either party may substitute by written
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notice to the other in the manner contemplated herein, and shall be deemed
served when delivered or, if delivery is not accomplished by reason or some
fault of the addressee, when tendered.
10.11 Descriptive Headings. The headings of the several
sections of this Agreement are intended for convenience of
reference only and are not intended to be a part of or to affect
the meaning or interpretation of this Agreement.
10.12 Entire Agreement. This Agreement constitutes the entire and
exclusive Agreement between the parties hereto with respect to the subject
matter hereof, and supersedes and cancels all previous registrations,
agreements, commitment and writings in respect thereof.
10.13 Severability. In the event that any provision of this Agreement
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect
without said provision; provided that no such severability shall be effective if
it materially changes the economic benefit of this Agreement to either Xxxxx or
CDI. In the event that any provision of this Agreement becomes or is declared by
a court of competent jurisdiction to be illegal, unenforceable or void, and
severability of such provision would materially change the economic benefit of
this Agreement to either Xxxxx or CDI, Xxxxx and CDI shall modify such provision
in accordance with Section 10.8 to obtain a legal, enforceable and valid
provision and provide an economic benefit to Xxxxx and CDI that most nearly
effects Xxxxx'x and CDI's intent in entering into this Agreement.
10.14 Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but both of which together shall
constitute one and the same instrument.
[The next page is the signature page]
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IN WITNESS WHEREOF, the undersigned are duly authorized to execute this
Agreement on behalf of Xxxxx and CDI as applicable.
XXXXX XX CARDIOVASCULAR DIAGNOSTICS,
INC.
By:__________________________ By:__________________________
Print Name:__________________ Print Name:__________________
Title:_______________________ Title:_______________________
SS1-CORP-7695-1-43868.7
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