MEDICAL SUPPLY MANUFACTURING AGREEMENT
Exhibit
10.1
[*]
designates portions of this document that have been omitted pursuant to a
request for confidential treatment filed separately with the Securities and
Exchange Commission.
THIS
MEDICAL SUPPLY MANUFACTURING AGREEMENT (this “Agreement”) is made and
entered into as of 14 July 2010 between (i) MedPro Safety Products, Inc., a
Nevada corporation (“MedPro”), and Xxxxxxx Bio-One GmbH, an Austrian company
(“GBO”).
WHEREAS, MedPro owns the following
intellectual property
rights:
VACUETTE®
PREMIUM Safety Needle System (the “Tube-Activated Product” and the
“Skin-Activated Product”). The Tube-Activated Product and the Skin-Activated
Product are referred to hereinafter as the “Holder Product”, and
VACUETTE®
PREMIUM Safety Blood Collection Set (PSBC) hereinafter referred to as the “Wing
Product”, and
Collectively
the Holder Product and the Wing Product are herein referred to as the
“Products”.
WHEREAS, MedPro wishes to grant, and GBO
wishes to accept, the right to manufacture and distribute the Products, all
in accordance with the terms and conditions of this
Agreement.
WHEREAS,
MedPro and GBO are parties to two agreements, titled ‘Medical Supply
Manufacturing Agreement’ and dated as of July 15th,
2008 and wish to terminate such agreements and supersede and replace them with
this consolidated and single Agreement.
NOW THEREFORE, in consideration of the
mutual covenants and agreements contained herein, MedPro and GBO agree as
follows:
ARTICLE 1
-TERM AND
PROCEDURES
1.1
Medical Supply Manufacturing
Agreement. The two Medical Supply Manufacturing Agreements for
the products covered by this Agreement are hereby terminated effective as of the
date first set forth above, shall be of no further force or effect whatsoever,
and are replaced and superseded in their entirety by this
Agreement.
1.2
Exclusive
Rights. During the Term (as hereafter defined), GBO and its
affiliates will have the exclusive right to manufacture, market, and distribute
the Products. Notwithstanding any other provision hereof, MedPro
shall remain the sole owner of all intellectual property rights related to the
Products, and GBO shall not be deemed to have been granted hereby any rights in
such intellectual property, except for the limited right to manufacture and sell
the Product during the Term as set forth herein.
1.3
Term.
(a) The
term of this Agreement (the “Term”) shall be the period commencing on the date
of this Agreement and, unless sooner terminated in accordance herewith, ending
on the date that is six (6) years from the date of initial commercial
manufacturing of any of the Products by GBO in accordance with this Agreement
(the “Initial Production Date”). The Term may be extended by GBO for
a seventh year in the circumstances set forth in section 2.2(e).
(b) This
Term may be extended by mutual agreement of the parties, on such terms and
conditions (including duration, minimum production, royalties, etc.) as may be
agreed upon by the parties. Discussions regarding any possible
extension of the Term shall begin on or prior to the [*] anniversary
of the Initial Production Date. If the parties are unable to agree
upon terms and conditions for extending the Term within one hundred eighty (180)
days after such [*] anniversary, then MedPro will offer GBO the option to extend
the Term for a period of [*] years after the initial Term, at the
Production Royalty (as hereafter defined) in effect at the end of the initial
Term, with a maximum annual Minimum Annual Production (as hereafter defined) to
be increased [*] in each year. For purposes of
clarification, the maximum annual Minimum Annual Production would be increased
[*] over that year in the first year of the extended Term, and an
additional [*] in each year of the extended Term thereafter. If GBO
does not accept this offer within thirty (30) days after notice thereof by
MedPro, the Term will not be extended and will expire at the end of the original
Term.
(c) When
the Term expires or is terminated for any reason whatsoever, MedPro shall have
the option to purchase any or all Production equipment (as hereafter defined)
from GBO at the greater of GBO’s depreciated book value or fair market
value. MedPro shall exercise such option by delivering written notice
thereof to GBO within thirty (30) days after expiration or termination of the
Term.
1.4
Product
Development. The parties hereto agree to abide in good faith
by the following development schedule:
(a) GBO
has paid MedPro an aggregate amount of USD1,350,000 for the initial product
design (the “Program Fee”) for the Holder Product. The payment of
USD1,350,000 has been earned with delivery of the initial design plan, by 1
October 2008. GBO has paid MedPro an aggregate amount of USD1,000,000
for the initial product design (the “Program Fee”) for the Wing
Product. The payment of USD1,000,000 has been earned with delivery of
the initial design plan by 1 October 2008.
(b) The
[*] will be marketed first, and may be followed by the [*], which will be
marketed at the time designated solely by GBO. For the purposes of
this Agreement, the Initial Production Date shall be defined as fourth quarter
of 2010 based upon the calendar year.
(c) MedPro
has provided the initial design of the Wing Product to GBO in accordance with
the terms of the prior agreement between the parties. It is the
financial responsibility of MedPro to fully validate the initial device design
and to secure all regulatory approvals necessary to the marketing of the
product. It is understood that GBO may want to modify the initial
device design prior to high volume production and
Commercialization. MedPro will maintain design control as provided
for in the current regulatory protocols and in accordance with the quality
contracts attached as Exhibits to this Agreement, unless modified in the future
within the terms of the Agreement. MedPro reserves the right to
request reimbursement for future validation expenses related to modifications
requested by GBO if MedPro estimates that these expenses are
significant. MedPro will notify GBO of proposed expenditure in
advance of incurring those items, whenever possible. GBO and
MedPro will endeavor to work under the principle of fairness in this
regard.
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(d) For
the Wing Product, GBO will complete, install, and validate the
Production Line at a mutually acceptable date. This Production Line
will include presses, molds, automation, packaging, and
engineering. MedPro is financially responsible to fully validate the
physical venous access device, defined as from the distal end up to and
including the winged adapter. MedPro will continue to assist GBO in
the development and validation of accessories for the device.
(e) The
Initial Production Date of the [*] will be 1 October 2010, and the target date
for the initial production of the Wing Product is [*]. All future
post commercialization Product modifications not related to Product design
failures will be requested by GBO and reviewed by MedPro. It is
understood by both parties that future costs of design modifications not related
to design failures will be the primary responsibility of GBO.
(f) If
MedPro has not secured the regulatory approvals necessary to the marketing of
the Wing Product by [*], then MedPro will pay GBO liquidated damages in the
amount of USD[*] on [*], and on the first day of each succeeding calendar
quarter through [*] until regulatory approvals have been
secured. Thereafter, should regulatory approvals still not be
secured, MedPro will pay GBO liquidated damages of $[*] per quarter during Year
2, $[*] per quarter for Year 3, $[*] per quarter for year 4 and $[*] per quarter
for Year 5, until the regulatory approvals have been secured. MedPro
will retain the obligation to make any such payments of liquidated damages if
MedPro assigns its rights to receive production royalty payments to a separate
subsidiary for financing purposes.
(g) Any
future Product modifications requested by GBO after the Initial Production Date
will be submitted to MedPro for review in advance. MedPro’s review shall
include compliance with MedPro design control protocol and any patentability
review as MedPro may deem appropriate, based upon the nature of each
modification contemplated. All future Product modifications will be
completed within the terms of the quality system requirements as provided for in
this Agreement.
1.5 Quality
Specifications. Both parties agree that all requirements to
this Agreement shall be made in compliance with each party’s Quality System, and
all related procedures and policies. This shall include all
stipulated requirements for compliance with the US Food and Drug Administration
(“FDA”), including QSR requirements, and CE registration, including the Medical
Device Directive (“MDD”). The parties agree to cooperate with each
other’s Quality protocols as necessary, and to deal with Quality control matters
that arise in accordance with the following documents:
(a) Quality
System Considerations.
(b) CE
Contract.
(c) Matrix of
Responsibilities.
(d) Product
Description(s).
These
documents may be mutually modified from time to time, and in writing, by both
parties.
ARTICLE 2 -PRODUCT MANUFACTURING AND
ROYALTY
2.1 Product
Manufacturing. During each calendar quarter of the Term,
commencing on the Initial Production Date, GBO agrees to manufacture the Holder
Product and Wing Product, in the following minimum amounts collectively (an
aggregate of [*] units of the Products over the Term) as indicated in each of
the following calendar quarters of the Term commencing on the Initial Production
Date (the “Minimum Quarterly Production”):
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Year / Quarter
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Minimum Quarterly
Production
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As used
in this Agreement, a “unit” means one single item of the either the Holder
Product or the Wing Product.
2.2
Production
Royalty.
(a) The
Production Royalty to be paid to MedPro by GBO for all Products is USD[*] per
unit.
(b) The
amount of the quarterly Production Royalty payable each quarter shall be based
upon a number of Product units equal to the greater of the Minimum Quarterly
Volume for the quarter, or actual Product unit sales for the
quarter. Until such time as GBO has paid the Production Royalty on
[*] Product units, the amount of the minimum quarterly Production Royalty owed
by GBO for any quarter shall be reduced by the amount that the total of the
quarterly Production Royalties actually paid by GBO for all preceding quarters
exceeds the amount of (i) the sum of the Minimum Quarterly Volume for all
preceding quarters (ii) multiplied by the Production Royalty per
unit. After GBO has paid the Production Royalty on [*] Product units,
the amount of the quarterly Production Royalty payable by GBO shall be actual
Product unit sales for the quarter multiplied by the Production Royalty per
unit.
(c) Within
15 days after the end of each month, GBO will provide to MedPro a monthly
summary of total unit sales of each of the Tube-Activated Product, the
Skin-Activated Product and the Wing Product.
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(d) GBO
shall pay each quarterly Production Royalty payment to MedPro no later than 15
days following the end of the preceding calendar quarter.
(e) If
the sum of the Minimum Quarterly Volume amounts for Years 1 through 6 exceeds
the total number of Product units sold by GBO during Years 1 through 6 (the
“Sales Shortfall”), then during the 7th year
following the Initial Production Date, GBO shall have the right to manufacture a
number of units equal to the Sales Shortfall for which no Production Royalty
shall be payable under Section 2.2(a). This provision shall not affect GBO’s
obligation to pay the Production Royalty to MedPro during Years 1 through
6.
2.3
Late
Payment. In the event of late payment to MedPro by GBO, MedPro
shall be entitled to interest in the amount two percent (2%) of the Production
Royalties due, per month from the day after the date payment was first due
through the date when payment is received.
2.4
Marketing.
(a) In
consideration of the substantial capital expenditures by Xxxxxxx to complete,
install, and validate production lines for the Holder and Wing Products, MedPro
agrees to contribute toward anticipated costs for marketing of the
Products. MedPro shall make a quarterly contribution payment to
Xxxxxxx in an amount equal to USD[*].
MedPro agrees to make its payment no later than the 30th day
following the end of each calendar quarter. MedPro will direct its
payment to the appropriate Xxxxxxx subsidiary producing the Products, as
directed by Xxxxxxx. MedPro will retain the obligation to make
payments for marketing expenses under this agreement (i) if MedPro assigns its
rights to receive production royalty payments to a separate subsidiary for
financing purposes, and (ii) for any month in which MedPro must pay liquidated
damages to GBO as provided in section 1.4(f).
(b) Following
the marketing and sales of the Products by Xxxxxxx, which will initiate on
October 1 2010, Xxxxxxx and/or MedPro shall have the right to request a
renegotiation of the marketing contribution if unforeseen market conditions have
had a material impact on the project. This may include both lower
than expected market demand, significantly increased production costs, or
significantly higher market demand. There is no obligation on the
part of either party to accept suggested modifications to the market
contribution. Both parties agree to negotiate in good faith regarding
this issue.
ARTICLE 3 -MEDPRO REPRESENTATIONS AND
WARRANTIES
MedPro
hereby represents and warrants as follows:
3.1
Corporate Power. Each
of MedPro is duly organized and validly existing under the laws of its
applicable jurisdiction in the United States and has full corporate or limited
liability company power and authority to enter into this Agreement and to carry
out the provisions hereof.
3.2
Due Authorization.
MedPro is duly authorized to execute and deliver this Agreement and to perform
its obligations hereunder.
3.3
Binding Agreement.
This Agreement is a legal and valid obligation binding upon MedPro and is
enforceable in accordance with its
terms. The execution, delivery and performance of this Agreement by
MedPro does not conflict with any agreement, instrument or understanding, oral
and written, to which it is a party or by which it may be bound, nor violate any
applicable laws of any court, governmental body or administrative or their
agency having authority over it (“Applicable Laws”).
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ARTICLE 4 -REPRESENTATIONS AND
WARRANTIES OF GBO
GBO
hereby represents and warrants as follows:
4.1
Corporate Power. GBO
is duly organized and validly existing under the laws of Austria has full
corporate power and authority to enter into the Agreement and to carry out the
provisions hereof.
4.2
Due Authorization.
GBO is duly authorized to execute and deliver this Agreement and to perform its
obligations hereunder.
4.3
Binding Agreement.
This Agreement is a legal and valid obligation binding upon GBO and is
enforceable in accordance with its terms. The execution, delivery and
performance of this Agreement by GBO does not conflict with any agreement,
instrument or understanding, oral and written, to which it is a party or by
which it may be bound, nor violate any Applicable Laws of any court,
governmental body or administrative or their agency having authority over
it.
ARTICLE 5
- DEFAULT
5.1
Events of
Default. Unless excused by the other party’s failure to
perform, the occurrence of one or more of the following events with respect to a
party (the “Defaulting Party”) shall constitute an “Event of
Default”:
(a) Any
default in payment due under this Agreement from such party, which default is
not remedied within ten (10) days after receipt of written notice thereof from
the other party;
(b) The
failure of such party to perform any of its material obligations under this
Agreement (other than a payment default), which failure is not remedied within
thirty (30) days after receipt of written notice thereof from the other party;
provided, however, that if such failure cannot reasonably and with due diligence
be remedied within thirty (30) days, it shall constitute an Event of Default
only if the responsible party has not remedied such failure within an additional
thirty (30) days after expiration of the initial thirty (30) day period, and the
responsible party is not attempting to remedy such failure reasonably, in good
faith, and with due diligence;
(c) Any
representation or warranty made by such party hereunder proves to have been
false or misleading in any material respect at the time made; or
(d) Such
party files a voluntary petition in bankruptcy or is adjudicated bankrupt or
insolvent, or files any petition or any answer seeking or acquiescing in any
reorganization, arrangement, composition, adjustment, liquidation, dissolution,
or similar relief for itself under any then current federal, state, foreign, or
other bankruptcy statute, law, or regulation for the relief of debtors, or
seeks, consents to, or acquiesces in the appointment of any trustee, receiver,
or liquidator of such party, or makes any general assignment for the benefit of
creditors, or admits in writing its inability to pay its debts generally as they
come due; provided, however, that with respect to MedPro, none of the events
listed in this section 5.1(d) shall be an Event of Default so long as MedPro
continues to perform all of its material obligations under this
Agreement.
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5.2
Remedies in the Event of
Default. Upon the occurrence, and during the continuance of an
Event of Default, the non-Defaulting Party may, by written notice to the
Defaulting Party, terminate this Agreement.
ARTICLE 6
- NOTICES
6.1
Notices. All
notices required or permitted to be given hereunder shall be sent by facsimile
transmission or by certified mail, return receipt requested, postage pre-paid,
and addressed to:
If to
MedPro:
Attention: Xxxxxx
Xxxxxx, President and COO
000
Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx,
Xxxxxxxx 00000
Facsimile: 000-000-0000
If to
GBO:
Xxxxxxx
Bio-One GmbH
Attention: Xxxxx
Xxxxxx, President and CEO
Bad
Xxxxxx Xxxxxx 00
X-0000
Xxxxxxxxxxxx Xxxxxxx
Facsimile: x00
(0) 0000 0000
or to
such other person or address as such party may have specified in a notice duly
given as provided herein. Such notice shall be deemed to have been
given as of the date of transmission or delivery, as the case may
be.
ARTICLE 7 - RISK OF
LIABILITY
7.1
Liability for
Products. Upon installation and joint validation of the
Production Line at GBO, GBO shall be solely responsible for all Product defects
and other liabilities and claims arising from or in any way related to GBO’s
manufacturing or sale of the Products. MedPro shall be solely
responsible for all Product defects associated with the design of the Products.
MedPro shall also be solely responsible for all Product defects and other
liabilities and claims arising from or in any way related to MedPro’s
manufacturing of the Products. Product defects shall be addressed
in compliance with MedPro and GBO regulatory and quality requirements as
contemplated in this Agreement. Product costs and resultant resolution
associated with defects shall be the responsibility of the appropriate party as
defined in this Agreement. MEDPRO HEREBY DISCLAIMS ALL EXPRESS
AND IMPLIED WARRANTIES WITH RESPECT TO THE PRODUCT, INCLUDING ANY WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
7.2
Indemnification by
MedPro. MedPro shall indemnify and save harmless GBO, its
officers, directors, shareholders, employees, agents, affiliates, and
representatives, with respect to any damages they may incur, including
reasonable legal fees, as a result of any breach of this Agreement by MedPro,
except to the extent due to the negligence or willful misconduct of
GBO.
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7.3
Indemnification by
GBO. GBO shall indemnify and save harmless MedPro, its
officers, directors, shareholders, employees, agents, affiliates, and
representatives, with respect to any damages they may incur, including
reasonable legal fees, as a result of any breach of this Agreement by GBO or any
liabilities or claims described in Section 7.1 hereof, except to the extent due
to the negligence or willful misconduct of MedPro.
7.4
Dispute
Resolution.
(a) In
the event of any controversy or claim arising out of or relating to this
contract, or the breach thereof, the parties hereto shall consult and negotiate
with each other and, recognizing their mutual interests, attempt to reach a
solution satisfactory to both parties. Except with respect to the
provisions of Article 8 Confidentiality, if the parties do not reach settlement
within a period of 60 days, then, upon notice by any party to the other, any
unresolved controversy or claim shall be settled by arbitration administered by
the International Centre for Dispute Resolution in accordance with its
International Arbitration Rules. Any controversy or claim submitted
to arbitration will be resolved by a three-person panel. The place of
arbitration will be London, UK, or an alternate location mutually acceptable to
the parties. The language of the arbitration will be
English. The arbitrability of any controversy or claim arising out of
or relating to this contract shall likewise be determined in such
arbitration. The arbitral award will be final and binding upon the
parties, and judgment on the award may be entered in any court of competent
jurisdiction.
(b) Within
30 days after the commencement of arbitration, each party shall appoint a person
to serve as an arbitrator. The parties shall then appoint the presiding
arbitrator within 20 days after selection of the party appointees. If any
arbitrators are not selected within these time periods, the International Centre
for Dispute Resolution shall, at the written request of any party, complete the
appointments that have not been made.
(c) Limits
on Time and Information Exchange. It is the intent of the Parties
that, barring extraordinary circumstances, arbitration proceedings will be
concluded within 120 days from the date the arbitrator(s) are appointed. The
arbitral tribunal may extend this time limit in the interests of justice.
Failure to adhere to this time limit shall not constitute a basis for
challenging the award. Consistent with the expedited nature of
arbitration, pre-hearing information exchange shall be limited to the reasonable
production of relevant, non-privileged documents explicitly referred to by a
party for the purpose of supporting relevant facts presented in its case,
carried out expeditiously.
(d) Confidentiality
of Dispute Resolution. Except as may be required by law, neither a
party nor its representatives may disclose the existence, content, or results of
any negotiation or arbitration hereunder without the prior written consent of
both parties.
ARTICLE 8 -CONFIDENTIALITY
8.1
Confidential
Information. MedPro and GBO acknowledge that in the course of
performing their duties hereunder, they will be necessarily gaining access to
each other’s secret and proprietary information, including, without limitation
the existence and terms of this Agreement (the “Confidential
Information”).
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8.2
Disclosure. Nothing
contained herein shall in any way restrict or impair any party’s right to use,
disclose or otherwise deal with any information or data which:
(a) At
the time of the disclosure is generally available to the public or thereafter
becomes generally available to the public, by publication or otherwise, through
no act of the disclosing party, its employees, consultants or advisors or of any
person or entity bound by an obligation of confidentiality to the non-disclosing
party;
(b) The
disclosing party can show was in its possession prior to the time of the
disclosure to it and was not acquired from the non-disclosing party or any other
source which is bound by an obligation of confidentiality to the non-disclosing
party;
(c) The
disclosing party can show was received by it as a matter of lawful right after
the time of disclosure from a third party who did not acquire it from the
non-disclosing party under an obligation of confidence and that without breach
of any obligation, the disclosing party is free to disclose it to others;
or
(d) Is
required to be disclosed pursuant to court order, federal, state, or foreign
government regulation or requirement of a federal, state, or foreign
governmental authority.
8.3
Nondisclosure. Both
MedPro and GBO shall maintain in confidence any Confidential Information which
is disclosed directly or indirectly to it by the other party, and shall not make any use of
such Confidential Information other than performing services hereunder or
disclose such information to any third party without the other party’s express
prior written consent. MedPro will notify GBO and submit to GBO
articles any informational releases that it is aware of or responsible for that
reference the Products and GBO. This notification shall be sent to
GBO three (3) days prior to public release for GBO comment. MedPro
shall endeavor to eliminate any information that GBO believes will be
commercially or competitively have a negative market impact. MedPro’s
and GBO’s obligations under this Article 8 shall survive for a period of
twenty-four (24) months following the end of the Term, whether by expiration or
termination.
8.4
Disclosure to Governmental
Authorities. Nothing contained herein shall in any way
restrict or impair any party’s ability to disclose Confidential Information to
any federal, state, or foreign governmental authority, if it is required to do
so; provided, however, that: (a) the party that is required to
disclose the Confidential Information shall provide the other party with prior
written notice of any such required disclosure, sufficient to allow the other
party to petition the governmental authority, prior to such disclosure, for
confidential protection of the Confidential Information; and (b) the party
required to disclosure the Confidential Information shall cooperate with the
other party (as reasonably required) in obtaining such protection from the
governmental authority.
8.5 Injunctive
Relief. Each of MedPro and GBO acknowledges that the other
party has no adequate remedy at law and would be irreparably harmed if it
breaches or threatens to breach the provisions of this Article 8, and therefore,
both parties agree that the injured party shall be entitled to injunctive relief
to prevent any breach or threatened breach of those provisions and to specific
performance of the terms of each of such provisions in addition to any other
legal or equitable remedy it may have.
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ARTICLE 9 - MISCELLANEOUS
9.1 Waivers and
Remedies. The failure of one of the parties hereto to insist
in any one or more instances upon strict performance of any of the obligations
of the other party pursuant to this Agreement or to take advantage of any of its
rights hereunder shall not be construed as a waiver of the performance of any
such obligation or the relinquishment of any such rights for the future, but the
same shall continue and remain in full force and effect.
9.2
Construction of
Terms.
(a) The
terms of this Agreement have been arrived at after arms-length negotiation and,
therefore, it is the intention of the parties that its terms not be construed
against either of the parties by reason of the fact that it was the drafter
thereof.
(b) This
Agreement shall be considered made and shall be construed under the laws of the
state of Delaware.
9.3
Assignment.
(a) The
terms, conditions and covenants of this Agreement shall be binding upon and
shall inure to
the benefit of each of the parties hereto, their heirs, personal
representatives, successors or permitted assigns. This Agreement
shall not be assigned in whole or part by GBO without the prior written consent
of MedPro, which consent may be withheld in MedPro’s sole and absolute
discretion.
(b) This
Agreement shall not be assigned in whole or part by MedPro without the prior
written consent of GBO, which consent may be withheld in GBO’s sole and absolute
discretion; provided, however that GBO consents to the assignment of certain of
MedPro’s rights under this Agreement for financing purposes to a separate
subsidiary owned by MedPro and to the trustee under the indenture for any debt
securities issued by the subsidiary in such financing where all other terms and
conditions of this Agreement shall continue to be binding upon
MedPro. The assignable rights would include the rights to receive
royalty payments under Section 2.2, indemnification payments under Section 7.3,
reports under Section 2.2(c) and other amounts payable to MedPro under this
Agreement.
9.4
Counterparts. This
Agreement may be executed in any number of counterparts (including via facsimile
or e-mail signatures), each of which so executed shall be deemed to be an
original, and such counterparts together shall constitute but one and the same
instrument, which shall be sufficiently evidenced by any such original
counterpart.
9.5
Captions and
Exhibits.
(a) The
headings in this Agreement are for convenience of reference only and shall not
define or limit any of the terms or provisions hereof.
(b) The
exhibits hereto are incorporated herein by reference, and shall in all respects
be deemed a part of this Agreement.
9.6
Amendment and
Modification. Any amendment, modification or waiver of any
provision of this Agreement, or any consent to any departure therefrom, shall
not be effective unless the same is in writing and signed by the parties hereto.
In such cases, the modification, waiver or consent is effective only on the
specific instance and for the specific purpose given.
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9.7
Entire
Agreement. This Agreement represents the entire agreement of
the parties hereto with respect to the subject matter hereof and supersedes all
prior or contemporaneous written or oral agreements, negotiations,
correspondence, undertakings and communications between such parties
representing such subject matter.
9.8
No Consequential
Damages. Except as prohibited by law, each party hereto waives
any right it may have to claim or recover any special, exemplary, punitive or
consequential (including business interruption), or any damages other than, or
in addition to, actual damages.
9.9
Survival of Certain
Provisions. Notwithstanding the expiration or termination of
this Agreement for any reason, Section 3.4, and Articles 7, 8, and 9 hereof
shall survive.
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IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be executed by their duly
authorized officers effective as of the date
first above written.
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By:
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/s/
Xxxxxx X. Xxxxxx
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Name:
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Xxxxxx
X. Xxxxxx
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Title:
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President
and COO
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XXXXXXX
BIO-ONE GMBH
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By:
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/s/
Xxxxx Xxxxxx
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Name:
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Xxxxx
Xxxxxx
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Title:
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President
and CEO
|
||
12 |
Page
