EXHIBIT 10.2
LICENSE AGREEMENT
This agreement (this "Agreement"), dated as of September 25, 1997, is by
and between The Spectranetics Corporation, a corporation organized and existing
under the laws of the State of Delaware and having principal offices at 00
Xxxxxxxx Xxxxx, Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000-0000 (hereinafter referred to
as "SPNC") and United States Surgical Corporation, a corporation organized and
existing under the laws of the State of Delaware and having principal offices at
000 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxx 00000 (hereinafter referred to as
"USSC").
WHEREAS, SPNC and USSC desire to expand their relationship and use their
respective expertise cooperatively to further develop and commercialize * and
other products for *;
WHEREAS, SPNC and USSC are executing a supply agreement simultaneously with
this Agreement (the "Supply Agreement") pursuant to which SPNC shall manufacture
and sell to USSC, and USSC shall buy from SPNC, *; and
WHEREAS, SPNC and USSC wish to enter into a license agreement on the
terms hereof pursuant to which SPNC grants to USSC certain rights to use
SPNC's * technology solely for *.
NOW THEREFORE, in consideration of the mutual promises, agreements,
covenants, undertakings and obligations set forth herein and for other good and
valuable consideration, the parties hereto agree as follows:
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* This portion marked with an asterisk has been omitted pursuant to a request
for confidential treatment and filed separately with the Commission.
ARTICLE 1 - DEFINITIONS
1.1 For the purposes of this Agreement, the definitions set forth below
shall be applicable.
Action - The term "Action" means a claim, action, suit or proceeding,
whether civil or criminal or in law or in equity.
Affiliate - The term "Affiliate" shall mean a corporation or other
business entity which is directly or indirectly, controlled by a party hereto.
For this purpose, control of a corporation or other business entity shall mean
(i) direct or indirect beneficial ownership of fifty percent (50%) or more of
the voting interest in such corporation or other business entity, (ii) direct or
indirect beneficial ownership of fifty percent (50%) or more of the equity of
such corporation or other business entity, and (iii) the existence of any other
relationship between corporation or other business entity and another
corporation or other business entity which results in effective management
control by one over the other, regardless of whether such control is
continuously exercised. The term "Affiliates" shall not mean any corporation or
other business entity which controls a party hereto or is under common control
with a party.
*
Know-How - The term "Know-How" means any and all secret or confidential
information, trade secrets, specifications, test results, analyses and data,
inventions, methods, processes, formulae, mixtures, compositions, delivery
systems, designs, techniques, applications, ideas or concepts, whether or not
reduced to practice, relating directly to coupling technology in the Field,
including, but not limited to, technology
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for confidential treatment and filed separately with the Commission.
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that is or could be the subject matter of a foreign or domestic patent or
patent application, whether or not reduced to writing in a patent application.
Patents and Patent Applications - The term "Patents and Patent
Applications" shall mean all patents and patent applications identified on
* hereto, all corresponding foreign patents and applications, all other
patents and patent applications filed by or assigned to SPNC or any SPNC
Affiliate prior or subsequent to the date hereof and relating to any invention,
method, process, formula, mixture composition and delivery system (but excluding
*) having application to a Product, and all other foreign and
domestic patent applications filed in the name of, or assigned to SPNC covering
any invention, method, process, formula, mixture, composition and delivery
system (but excluding *) having application to a Product and all
foreign and domestic patents issuing on any of the foregoing patent
applications, and all continuations, continuations-in-part, divisions, reissues,
reexaminations, additions, and renewals thereof.
Person - The term "Person" or "Persons" means any individual,
corporation, partnership, association, trust or other entity or organization,
including a governmental or political sub division or any agency or
instrumentality thereof.
*
Product - The term "Product" or "Products" means any instrument,
device or system (but excluding *) which involve or relate to * technology to
the extent for use with * in the Field and embody or utilize any or all of
the following in which SPNC has or, during the term of this Agreement,
acquires any right, title or interest: (i) the inventions, methods,
processes, formulae, mixtures, compositions, and delivery systems (but
excluding *) disclosed and/or claimed in the Patents and Patent Applications,
and any invention, method, process, formulae, mixture, composition and
delivery system (but excluding *) similar to any of the foregoing; (ii) every
part, subassembly, component or accessory of, and addition or improvement to,
any of the foregoing; and (iii) Know-How (defined above).
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* This portion marked with an asterisk has been omitted pursuant to a request
for confidential treatment and filed separately with the Commission.
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Subsidiary - The term "Subsidiary" means any corporation, partnership or
other entity, fifty percent (50%) or more of the outstanding shares of any class
of stock, general partnership interest, or other equity of which is owned by a
party; and any operating division of a party not separately incorporated or
organized as an independent business Person.
1.2 In addition to the foregoing defined terms, the following terms shall have
the meanings set forth in the referenced Sections of this Agreement:
Term Section
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Confidential Information 6.4
Discloser 6.4
Disclosee 6.4
FDA 8.1
Force Majeure Event 18.3
Information 2.2
Inventions 3.1
Joint Results 12.1
License 2.1
License Fee 4.1
Modifications 3.3
* 7.1
* 9.6
ARTICLE 2 - THE GRANT
2.1 GRANT. Subject to payment of the Licensee Fee (defined in Section
4.1), SPNC hereby grants and conveys to USSC, and USSC hereby accepts from SPNC,
(i.e. with SPNC as provided below) a co-exclusive, worldwide, fully paid up and
irrevocable right and license (the "License"), without the right to sublicense,
to evaluate, develop, test, conduct clinical trials, obtain governmental
approvals, make, have made, use, practice, manufacture, have manufactured, sell,
transfer or commercialize Products, and the co-exclusive (i.e. with SPNC as
provided below), worldwide, fully paid up and irrevocable right and license to
practice and use the Know-How solely with respect to the Products. SPNC hereby
retains the non sublicenseable and non transferable right (except as provided in
Section 16.1) to (a) evaluate, develop, test, conduct clinical trials,
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for confidential treatment and filed separately with the Commission.
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obtain government approvals, make, have made, use, practice, manufacture,
have manufactured, sell, transfer and commercialize Products, (b) practice
under the Patents and Patent Applications and to practice and use the
Know-How throughout the world, and (c) all other rights with respect to
SPNC's intellectual property not specifically covered by this Agreement
including Patents and Patent Applications and Know-How.
2.2 INFORMATION. Within three (3) business days after the date of this
Agreement, SPNC shall deliver to USSC all conceptual, technical and design
information, specifications, test results, analyses, data, drawings, formulae,
mixtures, compositions, delivery systems, and any other useful information
(collectively, "Information") concerning the Patents and Patent Applications,
Know-How and Products now in SPNC's possession or control.
2.3 *
ARTICLE 3 - IMPROVEMENTS
3.1 IMPROVEMENTS. If, during the term of this Agreement, SPNC or one
or more SPNC Affiliates conceives, develops or acquires any right, title or
interest which may be licensed to USSC, in or to any new invention, method,
process, formula, mixture, composition, delivery system, modification or
improvement relating to a Product, or the use or manufacture thereof
(collectively, "Inventions"), SPNC shall furnish full details thereof to USSC,
including all Information involving or related thereto. Such Inventions shall
be deemed included in the License, except insofar as USSC notifies SPNC in
writing to exclude from the License all or any portion of such Inventions.
3.2 OWNERSHIP. Except as provided for in Section 9.2 regarding
ownership of inventions developed by SPNC during the term of this Agreement, all
patents
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for confidential treatment and filed separately with the Commission.
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pertaining to any Product or Products, or any part thereof, and all such
Inventions, which are the subject of this Agreement, shall be the exclusive
property of SPNC, subject to the License hereby granted.
3.3 *
ARTICLE 4 - CONSIDERATION
4.1 LICENSE FEE. The total consideration (the "License Fee") to be
paid by USSC for the rights granted hereunder shall be [*].
ARTICLE 5 - PAYMENT
5.1 PAYMENT. The License Fee shall be paid to SPNC within two (2)
business days of the date this Agreement is executed by both parties. Payment
of the Licensee Fee shall be made by means of a bank check in good funds or wire
transfer to an SPNC account based on prior written instructions provided by SPNC
to USSC.
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* This portion marked with an asterisk has been omitted pursuant to a request
for confidential treatment and filed separately with the Commission.
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ARTICLE 6 - PROPRIETARY INFORMATION
6.1 USSC CONFIDENTIALITY OBLIGATION. USSC hereby represents and
warrants that it has not, directly or indirectly, disclosed and agrees that it
will not, directly or indirectly, disclose, either during or subsequent to the
term of this Agreement, any Confidential Information of SPNC, to any other
Person, except to its attorneys and accountants as required in connection with
this Agreement who have been and will be instructed to maintain its
confidentiality and to third Persons, with a demonstrated need to know such
Confidential Information who shall execute binding written agreements requiring
such third parties not to disclose Confidential Information disclosed to them by
USSC. The provisions of this Section 6.1 shall survive termination of this
Agreement.
6.2 SPNC CONFIDENTIALITY OBLIGATION. SPNC hereby represents and
warrants that it has not, directly or indirectly, disclosed and agrees that it
will not, directly or indirectly, disclose either during or subsequent to the
term of this Agreement, any Confidential Information of USSC, to any other
Person, except to SPNC's attorneys and accountants as required in connection
with this Agreement who have been and will be instructed to maintain its
confidentiality and to third Persons with a demonstrated need to know such
Confidential Information, who shall execute binding written agreements requiring
such third parties not to disclose Confidential Information disclosed to them by
SPNC. The provisions of this Section 6.2 shall survive termination of this
Agreement.
6.3 SUPPLIERS. It is not intended by this Article 6 that USSC shall be
required to obtain specific written commitments in relation to this Agreement
from materials and/or component suppliers where only specifications are
disclosed to said materials and/or component suppliers by USSC.
6.4 CONFIDENTIAL INFORMATION. For purposes of this Agreement,
"Confidential Information" shall mean verbal and written disclosures from SPNC
or USSC (the "Discloser") to the other party (the "Disclosee"), which concern
the Discloser, including without limitation information which concerns the
Discloser's business, operations, products or research and development efforts,
or which concern the Products or Know-How, but shall not include information
which: (a) at the time of disclosure is published or otherwise becomes a part of
the public domain through no fault of Disclosee (but
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only after, and only to the extent that, it is published or otherwise becomes
part of the public domain); (b) Disclosee can show was known to it at the
time of disclosure, free of restriction; (c) has been or hereafter is
disclosed to Disclosee without any obligation of confidentiality by a third
Person who is in lawful possession of such information and has the right to
disclose it to Disclosee; (d) has been or hereafter is disclosed by Discloser
to a third Person free of any obligations of confidentiality; (e) is
developed by the Disclosee independent of the Discloser's Confidential
Information; or (f) is disclosed by Disclosee pursuant to the order or
requirement of a court, administrative agency or other governmental body,
provided that the Disclosee promptly informs the Discloser of its intent to
make such disclosure, takes all reasonable steps to limit such disclosure and
does not inhibit the Discloser in taking whatever lawful steps the Discloser
considers necessary to attempt to preserve the confidentiality of such
information. Disclosures made to Disclosee by Discloser which are specific
shall not be deemed to be within the foregoing exceptions merely because they
are embraced by general disclosures in the public domain or in the possession
of Disclosee.
6.5 REMEDIES. The parties agree and acknowledge that any breach of
this Article 6 by SPNC or USSC would likely cause irreparable injury to the
other party and that such other party's remedy at law for any such breach would
be inadequate. Accordingly, the parties agree that, in addition to any other
remedies provided for herein or otherwise available at law, temporary and
permanent injunctive relief and other equitable relief may be granted in any
Action which may be brought by either party to enforce the provisions of this
Article 6 without the necessity of proof of actual damage. Each party agrees
promptly to seek temporary and permanent injunctive relief against any of its
directors, officers, employees, representatives or agents who breach the
aforesaid obligations with respect to any matter relating to this Agreement.
6.6 SURVIVAL. The provisions of this Article 6 shall survive
termination of this Agreement.
ARTICLE 7 - INDEMNIFICATION
7.1 *
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* This portion marked with an asterisk has been omitted pursuant to a request
for confidential treatment and filed separately with the Commission.
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7.2 *
7.3 SURVIVAL. The provisions of this Article 7 shall survive
termination of this Agreement.
ARTICLE 8 - FDA INTERACTION
8.1 USSC REGULATORY RIGHTS. Either party shall be entitled to interact
with the regulatory agencies in any country including, but not limited to, the
U.S. Food and Drug Administration (collectively, "FDA") concerning the
manufacture, use or sale of a Product and for purposes of any filings with the
FDA concerning the Products to be the official company sponsor. In the event of
a dispute between USSC and SPNC
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for confidential treatment and filed separately with the Commission.
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concerning any matter relating to interaction concerning a Product with the
FDA, USSC shall have final authority to act as USSC, in its sole discretion,
deems appropriate with respect to the matter in dispute. USSC shall have the
right to utilize the Information in connection with such regulatory filings.
8.2 SPNC REGULATORY ASSISTANCE. During the term of this Agreement,
SPNC, at USSC's request, shall assist USSC during FDA interaction concerning the
Products; provided that USSC shall reimburse SPNC for all out-of-pocket
expenses, other than attorneys fees and expenses, incurred by SPNC in providing
such assistance.
8.3 *
ARTICLE 9 - PATENT PROSECUTION AND INFRINGEMENT
9.1 PRIOR INVENTIONS. USSC and SPNC each acknowledge that the other
party has heretofore developed or acquired methods, processes and apparatus
relative to their respective fields of endeavor. Notwithstanding anything in
this Agreement to the contrary but subject to Section 3.3, USSC and SPNC each
retain all right, title and interest in and to such methods, processes and
apparatus developed or owned on their respective parts prior to the effective
date of this Agreement.
9.2 *
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* This portion marked with an asterisk has been omitted pursuant to a request
for confidential treatment and filed separately with the Commission.
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9.3 PATENTS. Each party shall assist and cooperate in a reasonable
manner with the other party in obtaining patent protection for inventions
referred to in Section 9.2 and to protect title in the same in the name of the
proper party in accordance with such Section. USSC shall have the first right
to apply for and pursue patent protection for Joint Results for any invention,
development or improvement that relates to TMR and PMR, and in the event USSC
does not, after a reasonable period following discovery of the Joint Results,
file for patent protection, SPNC may file for such patent protection. No party
shall be obligated, however, to seek patent protection for any invention or to
pursue any application therefore once filed. Each party shall have sole
discretion in determining the jurisdictions in which it shall seek patent
protection for any invention owned by it.
9.4 INFRINGEMENT BY THIRD PARTIES. SPNC, on the one hand, and USSC, on
the other hand, shall promptly give written notice to the other of any apparent
infringement in the Field by a product discovered by it with respect to any
patent issuing from the Patents and Patent Applications. Such notice shall set
forth the facts of the apparent infringement in reasonable detail. *
9.5 THIRD PARTY CLAIM OF INFRINGEMENT. If USSC or SPNC receives notice
of a claim or Action by a third party alleging infringement of such third
party's rights in connection with the manufacture, use or sale of a Product by
USSC, its Affiliates, Subsidiaries, or permitted assignees, *
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* This portion marked with an asterisk has been omitted pursuant to a request
for confidential treatment and filed separately with the Commission.
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9.6 INFRINGEMENT DEFENSE OBLIGATIONS. *
9.7 MUTUAL LITIGATION UPDATE OBLIGATION; SETTLEMENT LIMITATIONS.
(a) *
(b) Notwithstanding anything in this Agreement to the contrary, neither
party nor its respective Affiliates, Subsidiaries, licensees, successors and
assigns, shall
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* This portion marked with an asterisk has been omitted pursuant to a request
for confidential treatment and filed separately with the Commission.
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agree or enter into any agreement, settlement of any claim or Action which
would invalidate any of the Patents or Patent Applications, or any claims
under any of the Patents or Patent Applications, or otherwise abridge the
right of the other party, its Affiliates, Subsidiaries, Sublicensees and
permitted assignees the right to practice thereunder or any of the Know-How
in the Field, without the prior written consent of the other party in its
sole and absolute discretion.
9.8 NOTICE OF INFRINGEMENT CLAIMS. In the event that any claim is
asserted against either party, or any of their respective directors, officers,
employees, agents or representatives, or such person is made a party defendant
in any Action involving a matter which is the subject of such party's
indemnification and hold harmless agreement as set forth above, or either party
becomes aware of a claim, patent or patent application which might provide the
basis for a third party's claim of infringement against the other party,
Affiliates, Subsidiaries, or permitted assignees as a result of their
manufacture, use or sale of a Product, then within thirty (30) days of receipt
by any one or more of such party of notice of any such event, and within ten
(10) days of such party's receipt of a written complaint or other formal
pleading regarding any such event, such party shall give the other party hereto
written notice of such claim, Action, or patent or patent application.
ARTICLE 10 - REPRESENTATIONS AND WARRANTIES
10.1 AUTHORITY. Each party hereby represents and warrants that (a) it
has full right, power and authority to enter into and be bound by the terms and
conditions of this Agreement, to transfer the rights and to carry out its
obligations under this Agreement, without the approval or consent of any other
person or entity; (b) the entering into of this Agreement, the transfer of
rights and the carrying out of its obligations under this Agreement is not
prohibited, restricted or otherwise limited by any contract, agreement or
understanding entered into by it, or by which it is bound, with any other
Person, or any governmental entity; (c) there is no contract, agreement or
understanding entered into by it, or by which it is bound, which if enforced,
terminated or modified, would be in derogation of, contrary to, or adversely
affect the rights acquired or to be acquired hereunder by USSC; and (d) there is
no claim, Action or investigation pending or currently threatened against it
which, if adversely
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determined, would restrict or limit its right to enter into this Agreement,
transfer the rights or carry out its obligations under this Agreement.
10.2 SPNC REPRESENTATIONS AND WARRANTIES. SPNC hereby further
represents and warrants that:
(a) it has not filed any patent application or been issued or assigned
any patent on or prior to the date of this Agreement for any instrument, device
or system similar to a Product, other than the Patents and Patent Applications;
(b) SPNC possesses all right, title and interest in the Patents and
Patent Applications and the Know-How, free and clear of any liens, charges,
encumbrances, claims and rights of any type, nature or amount whatsoever,
contingent or otherwise;
(c) to its knowledge and belief, SPNC is not aware of any act of fraud
or misrepresentation in connection with the prosecution of the Patents and
Patent Applications including, without limitation, any material prior art which
has not been disclosed in the cumulative prosecution of the Patents and Patent
Applications or any claim of prior inventions by others;
(d) to its knowledge and belief, SPNC has not authorized any disclosure
of SPNC trade secrets or confidential information involving or relating to the
Products without legally enforceable restrictions on disclosure by recipients
thereof; and
10.3 RELIANCE ON REPRESENTATIONS AND WARRANTIES. All representations,
warranties and covenants made by a party shall be considered to have been relied
upon by the other party hereto regardless of any discussion, review or
investigation made by or on behalf of, the other party, and shall survive
termination of this Agreement.
ARTICLE 11 - TERM AND TERMINATION
11.1 TERM. The term of this Agreement shall commence upon the date
hereof and shall terminate upon the later of the following:
(a) *
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for confidential treatment and filed separately with the Commission.
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(b) *
Notwithstanding the foregoing, if at any time SPNC or USSC shall fail in any
material respect to comply with any of its material obligations under this
Agreement, or commit any fraud upon the other party in connection with this
Agreement or have willfully misrepresented any matter which is the subject of
the representations and warranties contained herein, the non breaching party may
terminate this Agreement upon seven (7) days prior written notice to the other.
The remedies provided in this Section 11.1(b) shall be in addition to any other
remedies available at law or in equity. Notwithstanding any other provision of
this Agreement, USSC at all times after fulfillment of USSC's obligations under
Section 4.1 shall have the right for any or no reason to terminate this
Agreement upon ten (10) days prior written notice to SPNC. In the event USSC
effects termination in accordance with the immediately preceding sentence, there
shall not be due to SPNC any termination penalty or other payment, nor shall the
payment by USSC to SPNC be returnable in any manner.
11.2 CURE. Notwithstanding Section 11.1 above, each party shall have
the right to cure any material breach. The cure shall be effected within a
reasonable period of time but not later than thirty (30) days after notice of
such breach given to it by the non-breaching party, if the cure can be effected
within such thirty (30) day period. If the breach is such that it cannot
reasonably be cured within such thirty (30) day period, this Agreement shall
terminate unless the breaching party institutes diligent efforts to cure such
breach within such thirty (30) day period and so long as such party shall
continue to pursue diligent efforts to effect such cure.
11.3 NON TERMINATION. Notwithstanding any other provision of this
Agreement, a party contesting in good faith any issue under this Agreement who
continues to comply with all other obligations and provisions of this Agreement
shall not be considered in breach of this Agreement for purposes of giving rise
to any right of termination by the other party until there is a final judgment
of a court of competent jurisdiction adverse to such contesting party with which
judgment such party has failed to comply within fifteen (15) days after written
notice thereof.
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for confidential treatment and filed separately with the Commission.
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ARTICLE 12 - RIGHTS AFTER TERMINATION
12.1 RIGHTS AFTER TERMINATION.
(a) All rights and obligations of the parties which accrue on or before
the effective termination date shall be fully enforceable by either party after
termination.
(b) If this Agreement terminates and, as a result thereof, USSC is
required to cease making Products, USSC may, nonetheless after such termination
dispose of inventory of Products existing at the date of termination, complete
any Products in the process of manufacture at the date of termination, and
utilize materials on order at the date of termination.
(c) *
12.2 SURVIVAL. The provisions of this Article 12 shall survive
termination of this Agreement.
ARTICLE 13 - PUBLICITY
13.1 PUBLICITY. Neither party shall issue any press release or make any
public disclosure, announcement, comment or statement concerning the existence
or the terms and conditions of this Agreement or the transactions contemplated
hereby without the prior written consent of the other party in its sole and
absolute discretion, provided
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* This portion marked with an asterisk has been omitted pursuant to a request
for confidential treatment and filed separately with the Commission.
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however, that each party shall have the right to make disclosures which are
required in the reasonable opinion of its counsel are necessary to comply
with applicable laws and any rules or regulations of a securities exchange or
the National Association of Securities Dealers upon which its securities are
then being traded.
13.2 SURVIVAL. The provisions of this Article 13 shall survive
termination of this Agreement.
ARTICLE 14 - WAIVER
14.1 WAIVER. No waiver by either party, express or implied, or any
breach of any term, condition, or obligation of this Agreement by either party
shall be construed as a waiver of any subsequent breach of any term, condition,
or obligation of this Agreement, whether of the same or different nature.
ARTICLE 15 - NOTICES
15.1 NOTICES. Any notice required or permitted to be given hereunder
shall be in writing and shall be mailed by certified mail, return receipt
requested, or delivered by messenger or air courier to the party to whom such
notice or payment is required or permitted to be given at its address set forth
as follows: if given to SPNC, to: Attn.: Chief Executive Officer, The
Spectranetics Corporation, 00 Xxxxxxxx Xxxxx, Xxxxxxxx Xxxxxxx, XX 00000-0000;
or, if given to USSC, to: Attn.: Xxxxxx X. Xxxxxx, Senior Vice President and
General Counsel, United States Surgical Corporation, 000 Xxxxxx Xxxxxx, Xxxxxxx,
XX 00000. Any such notice shall be considered given when delivered, as
indicated by signed receipt or other written delivery record. A party may
change that address to which notice to it is to be given by notice as provided
herein.
ARTICLE 16 - ASSIGNMENTS
16.1 ASSIGNMENT. Neither this Agreement nor the performance of any
part hereof may be assigned or transferred by either party hereto without the
prior written consent of the other party, except that either party may
(i) assign this Agreement to an
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Affiliate or Subsidiary of such party provided that such party continue to
guarantee the full performance by such Affiliate or Subsidiary of this
Agreement; and (ii) assign this Agreement to any successor by purchase,
merger or otherwise, to all or substantially all of such party's assets,
provided that in the event of such assignment such assignee shall agree in
writing with the other party to assume all of the obligations and liabilities
of such party hereunder. Any assignment, sublicense or transfer or attempt
thereat other than as permitted by this Section 16.1, and in compliance with
the provisions hereof, will be null and void.
ARTICLE 17 - CONSTRUCTION; ADJUDICATION
17.1 CONSTRUCTION. This Agreement, the validity, construction,
performance and interpretation thereof, and all issues and controversies arising
therefrom shall be construed and enforced in accordance with the internal laws
of the State of * applicable to contracts made and to be performed
entirely within the State of * without reference to its conflict of law
provisions.
17.2 *
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for confidential treatment and filed separately with the Commission.
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17.3 SURVIVAL. The provisions of this Article 17 shall survive
termination of this Agreement.
ARTICLE 18 - ENTIRE UNDERSTANDING/AMENDMENT/
FORCE MAJEURE
18.1 ENTIRE UNDERSTANDING. This Agreement, along with the Supply
Agreement and the Service Maintenance Master Agreement dated August 19, 1996,
constitutes the entire understanding and agreement between the parties, and
supersedes all previous agreements (whether written or oral) concerning the
subject matter hereof.
18.2 AMENDMENT. This Agreement shall not be modified, amended, or
supplemented except by a written document executed by both parties.
18.3 FORCE MAJEURE. Notwithstanding anything in this Agreement to
the contrary, if either party is prevented from performing any of its
obligations hereunder
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due to any cause which is beyond the non-performing party's control,
including fire, explosion, flood or other act of God; laws or acts of any
governmental authority; war or civil commotion; strike, lockout or labor
disturbances; or failure of public utilities or common carrier (each a "Force
Majeure Event"), such non-performing party shall not be deemed in breach
provided such non-performing party shall promptly give notice thereof to the
other party and shall use reasonable commercial efforts to cure or correct
any Force Majeure Event and to resume performance of its affected obligations
as soon as possible.
ARTICLE 19 - HEADINGS
19.1 HEADINGS. The headings in this document are for information
purposes only and are not meant to have any legal effect in interpreting this
document.
ARTICLE 20 - SEVERABILITY; FURTHER ASSURANCES
20.1 SEVERABILITY. The invalidity or unenforceability of any Section
or provision of this document shall not affect the validity or enforceability
of any one or more of the other paragraphs or provisions.
20.2 FURTHER ACTS. The parties hereto will execute any further
instruments or perform any acts which are or may be necessary to effectuate
each of the terms and provisions of this Agreement.
ARTICLE 21 - COUNTERPARTS
21.1 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original but all of
which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
THE SPECTRANETICS CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
--------------------------------------
Title: President/CEO
--------------------------------------
UNITED STATES SURGICAL CORPORATION
By: /s/ Xxxxxx X. Xxx
--------------------------------------
Xxxxxx X. Xxx
Senior Vice President, Operations
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