Exhibit 10.1
AGENCY AGREEMENT
This Agreement, entered into this 13th day of March, 1992 by the between :
METASYN INC. a corporation duly organized and existing under the laws of
Delaware and having its principal office of business at 000, Xxxxxxxxxxx
Xx.-Xxxxx 0X, Xxxxxx, Xxxxxxxxxxxxx 00000 (hereinafter referred to as
"Company"),
and :
SUMITOMO CORPORATION
corporation duly organized and existing under the laws of Japan and having its
principal office of business at 0-00-0 Xxxxxxxxxxxx-xxx, Xxxxxxx-xx, Xxxxx,
Xxxxx (hereinafter referred to as "Agent"),
WITNESSETH THAT :
Whereas, Company is the owner of certain technology as hereinafter defined, in
connection with the manufacture and sale of Products as hereinafter defined, and
Whereas, Company is interested in entering into Arrangements as hereinafter
defined, with companies for the manufacture, distribution and sale in Territory
as hereinafter defined of Products, and
Whereas, Agent is in a position to assist Company in entering into such
Arrangements and thereafter assisting Company in the administration of such
Arrangements as well as providing other related services, and
Whereas, Agent is desirous of obtaining the rights to do the said business on
the terms and conditions set forth below, Now Therefore, it is hereby agreed as
follows :
Article 1 : Definitions
The following terms as used in this Agreement shall, unless the context clearly
indicates to the contrary, have the meanings set forth in this Article and the
singular shall include the plural and vice versa :
1.1. "Product" means the products, listed on Appendix 1, which Company has the
right to develop manufacture and commercialize.
1.2. "Technology" means
a) all scientific, technical, medical, commercial and other confidential
information and know-how
b) all patents, and applications for patents owned and/or controlled by
Company including, without limitation, patents listed on Appendix 2
and licensed by Massachusetts General Hospital ("MGH") that Company
considers necessary for developing, manufacturing and commercializing
the Products and for obtaining Government approvals for proper
manufacture and promotion of the Product.
1.3. "Arrangements" means option agreement, license agreement, research and
development agreement in connection therewith or joint venture with or
equity participation or investment in Company relating to the manufacture,
distribution, and sale of Products in Territory or any other arrangement or
transaction relating to the Products of similar nature thereto.
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1.4. "Raw Materials" means the raw materials or active ingradients of the
Product insofar that they are used in the manufacture of the Product.
1.5. "Territory" means Japan.
1.6. "Partner" means any third party headquartered in the Territory and its
subsidiaries or affiliates wherever located.
Article 2 : Appointment
Company hereby appoints Agent, and Agent agrees to act, as an exclusive agent
for the Products with Partner upon the terms and conditions set forth
hereinafter.
Article 3 : Privity
Agent shall not be authorized to conclude any contract on Company's behalf, and
shall not make any representation, warranty, promise or any other act binding
Company. It is confirmed and agreed that in any event Company shall at its sole
discretion determine whether or not to enter into any Arrangement with Partners
and that Agent shall not be responsible for any liabilities, damage or other
claims whatsoever arising in connection with any Arrangement or contents or
performance thereof to which Agent is not a party, including without limitation,
infringement of patent or other intellectual property right, product liability,
warranty, and performance of the Arrangements by Partners. Company shall
indemnity and hold Agent harmless from and against all suits, claims, demands,
damages, costs and expenses which are made against or incurred by Agent with
respect to the Arrangement or contents or performance thereof, to which Agent is
not a party, including, without limitation, infringement of patent or other
intellectual property right, product liability, warranty, and performance of the
Arrangement.
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Article 4 : Scope of Services
During the life of this Agreement, Agent shall :
a) use its best efforts to find appropriate Partners with which Company
will enter into Arrangements,
b) assist Company in negotiation on any Arrangements which will be made
between Company and Partners,
c) coordinate closely with Partners to obtain and maintain any necessary
registrations and approvals of Products required from Health or other
authorities in Territory,
d) assist Company in obtaining information, if deemed necessary and
specifically requested by Company, as to laws, regulations and
policies having the force of law in Territory applicable to the
conduct of business pursuant to this Agreement, as well as to
Arrangements which Company have concluded with Partners to the extent
available and practicable to Agent, and
e) provide Company with reports concerning the above matters as may from
time to time be reasonably required by Company.
Article 5 : Expenses
Unless otherwise expressly provided herein, all costs and expenses of Agent and
any third parties utilized by Agent in performing its service hereunder shall be
borne solely by Agent, and Company shall be required to make no payments to
Agent other than those expressly agreed by Company.
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Article 6 : Exclusivity
Company shall refer to Agent any inquiry or offer concerning Product which
Company may receive from a person or firm in Territory, and Company shall not
enter into Arrangements through other channel than Agent.
Article 7 : Compensation on hepatobiliary MRI agent
7.1 In consideration for the services to be rendered by Agent hereunder,
Company shall pay a commission of [ ]* on [ ]*, and [ ]* on [ ]*
hepatobiliary MRI agent. Company shall pay the commission to Agent within
thirty (30) days after the date on which Company receives the [ ]*.
7.2 Notwithstanding the provisions of the preceeding article 7.1, in case by
April 15, 1992 Company enters into any Arrangements for hepatobiliary MRI
agent with any Partner pursuant to which Company would be entitled to
receive more than [ ]* within one (1) year from the date of conclusion of
an agreement for such Arrangements, Company shall pay a commission of [ ]*
of [ ]* under such Arrangements.
7.3 For all sales of Product of hepatobiliary MRI agent or Raw Materials
therefor by Company to Partners, Company shall pay Agent a [ ]*
commission (calculated on [ ]* value).
*Confidential information omitted and filed with the Commission.
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Article 8 : Compensation on blood pool MRI agent
8.1 In consideration for the services to be rendered by Agent hereunder,
Company shall pay a commission of [ ]* on [ ]* blood pool MRI agent.
Company shall pay the commission to Agent within thirty (30) days after the
date on which Company receives the [ ]*.
8.2 Notwithstanding the provisions of the preceeding article 8.1, in case by
the end of September, 1993 Company enters into any Arrangements for blood
pool MRI agent with any Partner pursuant to which Company would be entitled
to receive more than [ ]* within one (1) year from the date of conclusion
of an agreement for such Arrangements, Company shall pay a commission of
[ ]* of [ ]* and [ ]* of [ ]* under such Arrangements.
8.3 For all sales of Products of blood pool MRI agent or Raw Materials therefor
by Company to Partners, Company shall pay Agent a [ ]* commission
(calculated on [ ]* value).
Article 9 : Intellectual Property
Company hereby represents and warrants that Company has the right to use the
Technology including, without limitation, patents or patent applications with
respect to the products listed on Appendix 2.
*Confidential information omitted and filed with the Commission.
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Article 10 : Confidentiality
During the term of this Agreement and for a period of seven (7) years
thereafter, Agent shall take the maximum precautions to (i) keep strictly
confidential all and any part of Technology furnished to it hereunder by
Company, and (ii) prevent its employees to whom it is necessary to disclose all
and any part of Technology for the performance of this Agreement from disclosing
or devulging said Technology, except when, after and to the extent such
Technology;
(i) is or hereafter becomes available to the public through no fault
of Agent and licensees,
(ii) was known to Agent prior to date of such disclosure
(iii) is subsequently disclosed to Agent on a non-confidential basis
by a third party not having a confidential relationship to
Company,
(iv) is forced to be disclosed by laws, regulations or orders of the
public authorities. 10.2 Each of the parties shall keep in strict
confidence from any third party any and all matters concerning
the business affairs and transactions covered by this Agreement,
except such matters as are forced to be disclosed by laws,
regulations or orders of government authorities. The obligation
hereunder shall survive the termination or expiration of this
Agreement.
Article 11 : Term
11.1 The initial contracted period of this Agreement shall be three (3) years
from the date of signature on this Agreement, provided that the parties
hereto may discuss on a two (2) years extention of this Agreement prior to
the termination of this Agreement.
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11.2 Notwithstanding any provision herein contrary to this paragraph of this
Article, Agent's right to receive compensation pursuant to Article 7 and 8
hereof shall survive effectively the termination of this Agreement so long
as Arrangements contemplated herein and concluded during the term of this
Agreement and one (1) year thereafter remain in force and running royalties
and other sums are paid by Partners. Company further agrees to pay
commission to Agent in accordance with Article 7 and 8 hereof if Company
enters into Arrangements with Partners with regard to the Products within
one (1) year after the termination of this Agreement if such Partner was
introduced by Agent to Company with regard to the Products during the life
of this Agreement.
11.3 Notwithstanding any provision herein contrary to this Agreement, Agent
shall have the right to receive the compensation with respect to sale of
Products and Raw Materials pursuant to Article 7.3 and 8.3 after the
termination of this Agreement if the sale of the Products or Raw Materials
is made based on or related to the Arrangement concluded during the term of
this Agreement and one (1) year thereafter.
Article 12 : Termination
12.1 This Agreement may be terminated by either party at any time upon the
occurrence of a material breach by the other party of any of the terms and
conditions hereof which breach remains uncured for a period of thirty (30)
days after the date of receipt of written notice from the non-breaching
party advising of the nature of such breach.
12.2 Either party hereto shall further have the right to terminate this
Agreement forthwith by written notice to the other party in the event that
such other party shall be adjudicated bankrupt, become insolvent, make any
assignment for the benefit of its creditors, have its assets placed in the
hands of receiver, file or have filed against it a petition in bankruptcy,
or be dissolved or liquidated.
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12.3 This Agreement may be terminated with immediate effect if the parties
hereto unanimously so resolve.
Article 13 : Step after Termination
Immediately upon termination of this Agreement Agent shall return to Company
original copies and all reproductions of Technology furnished by Company under
this Agreement.
Article 14 : Severability
This Agreement shall be severable, and in the event any portion hereof is
declared or deemed to be illegal or invalid by any court, regulatory agency or
any body having jurisdiction or competence, the remainder hereof shall remain
valid and enforceable according to its terms unless written notice to the
contrary is given by one party hereto to the other within thirty (30) days after
the receipt by such party giving the notice of such declaration or
determination.
Article 15 : Arbitration
All disputes, controversies or differences which may arise between the parties
hereto, out of or in relation to or in connection with this Agreement, or the
breach thereof which cannot be settled amicably shall be finally settled by
arbitration in Boston pursuant to the most recent Japan-American Trade
Arbitration Agreement.
Article 16 : Governing Law
This Agreement shall be construed in accordance with and governed by the laws of
Massachusetts, USA.
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Article 17 : Waiver
The failure of either Agent or Company to require performance of any provision
of this Agreement or the waiver by either party of any breach of such a
provision shall not prevent a subsequent enforcement of nor be deemed a waiver
of any subsequent breach of such provision.
Article 18 : Assignment
This Agreement shall be binding upon and shall inure to the benefit of each
party's successors, heirs and assigns, provided that neither this Agreement nor
any rights or obligations hereunder may be assigned, pledged or otherwise
transferred, in whole or in part, by either party without the prior written
consent of the other party.
Article 19 : Force Majeure
Neither party shall be liable to the other for failure or delay in the
performance of any of its obligations under this Agreement for the time and to
the extent such failure or delay is caused by riots, civil commotions, wars
(declared or undeclared), hostilities between nations, governmental laws, orders
or regulations, embargoes, actions by the government or any agency thereof, Act
of God, storms, fires, accidents, strikes, sabotages, explosions, or other
similar or different contingencies beyond the reasonable control of the
respective parties. If, as a result of legislation or governmental action, any
party or parties are precluded from receiving any benefit to which they are
entitled hereunder, the parties hereto shall review the terms of this Agreement
so as to use their best efforts to restore the party or parties to the same
relative position as previously obtained hereunder.
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Article 20 : Notices
20.1 All notices herein provided for may be given by personal delivery or by
registered airmail return receipt requested, addressed to the parties at
their above principal office of business.
20.2 The parties may change said addresses for notice by delivering notice of
change of address in the manner provided in this Article.
Article 21 : Sole Understanding
This Agreement supersedes and cancels any and all previous agreements,
understandings or negotiations, whether oral or written, between the parties
relating to the subject matter of this Agreement and expresses the complete and
final agreement of the parties in respect hereof. The Agreement may only be
amended by a written agreement executed by both the parties hereto.
Article 22 : Headings
The headings of articles used in this Agreement are inserted for convenience of
reference only and shall not affect the interpretation of the respective
articles of this Agreement.
Article 23 : Language
This Agreement has been executed in two (2) copies with equal force and effect
in English language. No translation into other language shall be taken into
consideration in the interpretation of this Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be signed and
sealed by their duly authorized officer or representative as of the date first
above written.
METASYN INC. SUMITOMO CORPORATION
By /s/ Xxxxxxx X. Xxxxxxx By /s/ X. Xxxxxxxxx
Name: Xxxxxxx X. Xxxxxxx Name: Xxxxxxxx Xxxxxxxxx
Title: Chairman and Title: Assistant to General Manager
Chief Scientific Officer
New Drug & Biochemicals
Development Dept.
Date: March 13, 1992 Date: March 13, 0000
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Xxxxxxxx 1
o Hepatobiliary Magnetic Resonance Imaging (MRI) Agent
o Blood Pool Magnetic Resonance Imaging (MRI) Agent
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Appendix 2
1) U.S. Ser. No. 731,841 filed May 8, 1985 (now U.S. Patent No. 4,899,755) for
"Hepatobiliary NMR Contrast Agents" Xxxxxxx X. Xxxxxxx and Xxxxxx X. Xxxxx,
Inventors
2) U.S. Ser. No. 860,540 filed May 7, 1986 (now U.S. Patent 4,880,000) for "In
Vivo Enhancement of NMR Relaxivity," Xxxxxxx X. Xxxxxxx, Inventor
3) U.S. Serial No. 399,737 filed August 28, 1989 for "Hydroxyaryl Metal
Chelates for Diagnostic NMR Imaging," Xxxxxxx X. Xxxxxxx and Xxxxx X.
Xxxxxx, Inventors.
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