EXHIBIT 10
AGREEMENT
THIS AGREEMENT, dated as of August 27, 2004, is by and between Xxxxxx
Laboratories, an Illinois corporation ("Abbott") and Allied Healthcare Products,
Inc., a Delaware corporation ("Allied").
WHEREAS, Abbott manufactures and markets, among other things, inhalation
anesthetics (the "Abbott Product");
WHEREAS, Allied manufactures and distributes, among other things, a carbon
dioxide absorbent product containing potassium hydroxide under the brand name
Baralyme(R) used in the administration of inhalation anesthetics; and
WHEREAS, concerns have been raised regarding the use of (a) carbon dioxide
absorbent products that have been allowed, contrary to recommended practices, to
become desiccated, with (b) inhalation anesthetics.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, the Parties hereto agree as follows:
1. DEFINITIONS. As used in this Agreement, the following terms shall have the
meanings set forth below.
1.1 "Abbott Product" has the meaning set forth in the first recital to
this Agreement.
1.2 "Affiliate" when used with respect to any specified individual,
corporation, firm, partnership, limited liability company, trust, or other
organization or entity ("Person"), means any other Person, directly or
indirectly, through one or more intermediaries, controlling, controlled by
or under common control with such specified Person. For purposes of this
definition, "control" (including, with its correlative meanings,
"controlling" and "controlled by") used with respect to any Person shall
mean the possession, directly or indirectly, of the power to direct or
cause the direction of management or the policies of such Person, whether
through ownership of voting securities, by agreement or otherwise
provided, however, that with respect to Abbott, the term "Affiliate" does
not include TAP Holdings Inc., TAP Finance Inc. and TAP Pharmaceuticals
Products Inc.
1.3 "Agreement" means this Agreement and each of the Schedules and
Exhibits hereto.
1.4 "Allied KOH Know-How" means any and all non-patentable (as determined
by the United States patent laws) technical information, know-how, skills,
techniques, trade secrets, data, processes, methods, inventions,
protocols, procedures and formulations relating to the Allied KOH Product
owned or licensed by Allied or hereafter developed, acquired or licensed
by Allied during the term of this Agreement that are useful for the
formulation, development, manufacture or sale of Allied KOH Product or
that relate to
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the processes and analytical methodology used in the development, testing,
and analysis of the Allied KOH Product.
1.5 "Allied KOH Product" means a carbon dioxide absorbent product
containing potassium hydroxide for use with inhalation anesthetics in any
formulation, including Allied's existing product, Baralyme(R).
1.6 "Carry-Over Amounts" has the meaning set forth in Section 3.2.
1.7 "Confidential Information" has the meaning set forth in the
Confidentiality Agreement.
1.8 "Confidentiality Agreement" means the Confidentiality Agreement
executed by the Parties simultaneously herewith, the form of which is
attached hereto as Exhibit A.
1.9 "Development Costs" means the actual personnel, materials, testing and
related costs and reasonable travel expenses incurred by Allied to develop
the New Allied Product (including costs of hiring new personnel,
reasonable travel related to hiring new personnel and "headhunter" fees
regarding new personnel consistent with Allied's past practices when
spending for its own account), provided that Development Costs does not
include costs incurred by Allied for personnel employed by Allied as of
the date hereof (other than out-of-pocket, materials, testing and travel
costs incurred or generated by such personnel in connection with the
development of the New Allied Product).
1.10 "Development Period" means the period from the date of this Agreement
until the earlier of December 31, 2008 or the First Commercial Sale of the
New Allied Product.
1.11 "FDA" has the meaning set forth in Section 2.1
1.12 "First Commercial Sale" means the first sale or distribution of a New
Allied Product by or on behalf of Allied to any Third Party, as evidenced
by an invoice to such Third Party, but excluding New Allied Product sold
solely for research purposes or for clinical trials.
1.13 "Installment Payments" has the meaning set forth in Section 2.4.
1.14 "New Allied Product" means a carbon dioxide absorption product for
use with inhalation anesthetics, whether a mechanical system and/or
chemical compound (or combination of compounds) that does not contain
potassium hydroxide and does not produce a significant exothermic reaction
with any currently available inhalation agents when desiccated.
1.15 "Parties" means the parties to this Agreement.
1.16 "Prior CDA" means the Bilateral Confidential Disclosure Agreement
dated as of April 6, 2004, between Allied and Abbott.
1.17 "Regulatory Authority" has the meaning set forth in Section 2.2.
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1.18 "Third Party" means any individual, corporation, partnership, joint
venture, limited liability company, trust or unincorporated organization
or government or any agency or political subdivision thereof other than
the Parties and their respective Affiliates.
2. DISCONTINUATION OF ALLIED KOH PRODUCT
2.1 Withdrawal and Return of Allied KOH Product. In consideration of the
payment of the Installment Payments and Development Costs, and other
valuable considerations, Allied hereby agrees to use diligent and
commercially reasonable efforts to (i) withdraw from the market all Allied
KOH Product made or distributed by Allied and existing as of the date of
this Agreement, wherever located and by whomsoever owned; and (ii) have
such Allied KOH Product returned to Allied within sixty (60) days of the
date of this Agreement and destroyed promptly upon its return. In
connection with the withdrawal from the market of the Allied KOH Product
made or distributed by Allied, Allied shall maintain records of the market
withdrawal of such Allied KOH Product in accordance with 21
C.F.R Section 806.20 and make such records available to the United States
Food and Drug Administration ("FDA") in accordance --- with 21
C.F.R. Section 806.30. As required, Allied shall notify the appropriate
regulatory authorities worldwide of the withdrawal of such Allied KOH
Product from the market. In addition, Allied shall provide notices to all
of its customers and distributors of the withdrawal of such Allied KOH
Product from the market. Allied shall refer any inquiries it receives
regarding Abbott or Abbott products to Xxxxxx'x medical information desk,
and Abbott shall refer any inquiries it receives regarding Allied or
Allied's products to Allied; provided that this sentence shall not be
deemed to limit either party's ability to respond to inquiries from the
FDA or other regulatory authorities. For Allied KOH Product made or
distributed by Allied that has either been distributed in the United
States or exported to foreign countries, Allied shall comply with
applicable regulatory requirements for the withdrawal from the market
thereof.
2.2 Nature of Withdrawal. Nothing herein shall be construed to
characterize the withdrawal of the Allied KOH Product made or distributed
by Allied as a withdrawal that is: (i) anything other than a voluntary
withdrawal from the market; (ii) a result of a request or requirement by
the FDA or any other applicable federal, state or foreign governmental
authority ("Regulatory Authority"); (iii) a result of a violation of any
legal or regulatory requirements imposed by the FDA or any other
applicable federal, state or foreign governmental authority or any state,
federal or foreign laws, rules or regulations. The Parties acknowledge the
possibility that the FDA or other Regulatory Authorities may take action
in the future that is inconsistent with the foregoing. Allied represents
that, as of the date of this Agreement, it has not received any notices or
demands from the FDA or other Regulatory Authorities inconsistent with the
first sentence of this Section 2.2. Neither Party shall characterize the
removal of the Allied KOH Product as other than a voluntary market
withdrawal initiated by Allied unless it is characterized differently by
the FDA or other Regulatory Authorities.
2.3 Non-Distribution. For a period of eight (8) years, commencing on the
date of this Agreement, Allied shall not, and shall not permit any of its
Affiliates to, directly or
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indirectly: (a) manufacture, distribute, promote, market, sell,
commercialize or donate any Allied KOH Product anywhere in the world; (b)
sell, assign, or transfer ("Transfer") to any Third Party any Allied KOH
Product marketing authorizations or permits; (c) Transfer to any Third
Party any Allied KOH Know-How without a restriction prohibiting the
transferee from using such Allied KOH Know-How to develop, manufacture,
distribute, promote, sell or commercialize a carbon dioxide absorbent
product containing potassium hydroxide for a period of at least eight (8)
years; (d) engage in any research or development relating to any Allied
KOH Product; or (e) enter into or discuss with any Third Party any
arrangement to engage in any of the activities described in clauses
2.3(a), (b), (c) and (d) above.
2.4 Compensation. In consideration of the obligations of Allied pursuant
to Section 2.1, 2.2 and 2.3, Abbott shall make the following payments (the
"Installment Payments") to Allied, in U.S. dollars, to the account
described in Schedule 2.4 attached hereto, on or before the dates
specified for each such payment:
Date of Payment Payment Amount
--------------- --------------
Within 30 days of the date of this Agreement $1,530,000.00
July 1, 2005 $930,000.00
July 1, 2006 $930,000.00
July 1, 2007 $930,000.00
July 1, 2008 $930,000.00
The Parties acknowledge that the initial Installment Payment includes six
hundred thousand dollars ($600,000) for costs incurred and to be incurred
in connection with the withdrawal of the Allied KOH Product from the
market, the disposal of such product, and severance payments payable as a
result of such withdrawal. Without limiting Xxxxxx'x remedies for any
breach by Allied of its obligations pursuant to this Agreement, Abbott
shall have no obligation to make any Installment Payment if Allied has
breached its obligations under this Agreement (and, with respect to any
breach of the provisions of Sections 2.5, 3.2 or 3.3 of this Agreement,
such breach has not been cured within the thirty (30) days following
written notice specifying such breach delivered by Abbott to Allied).
Further, Abbott shall have no obligation to make the Installment Payment
due July 1, 2008, if: (a) the New Allied Product has been approved by the
FDA for commercial sale prior to January 1, 2008; or (b) the First
Commercial Sale of the New Allied Product occurs prior to June 1, 2008.
2.5 Status Reports. Allied shall provide to Abbott monthly status reports
on the withdrawal and return of the Allied KOH Product. Allied shall
provide such status reports to Abbott no later than the last business day
of each month, starting August 31, 2004, until such time as Allied
reasonably believes, based on its communications with its customers and
distributors, that such Allied KOH Product made or distributed by Allied
has been returned to Allied and destroyed or has been destroyed by or on
behalf of the customer or distributor.
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3. DEVELOPMENT OF NEW ALLIED PRODUCT.
3.1 Allied's Development. Allied shall use commercially reasonable efforts
to develop and commercialize a New Allied Product, provided that nothing
herein shall prevent Allied from ceasing development of a New Allied
Product if, after having exercised commercially reasonable effort to
develop and commercialize a New Allied Product, Allied determines it is
commercially reasonable to do so. If Allied decides to cease development
of a New Allied Product, it shall immediately provide a notice to Abbott
indicating it has done so and providing the reasons for such decision.
3.2 Payments. Abbott shall pay to Allied up to two million, one hundred
fifty thousand dollars ($2,150,000) to fund Development Costs, with the
timing and amount of such payments as set forth in this Section 3.2.
Within thirty (30) days following each March 31, June 30, September 30 and
December 31 during the Development Period, Allied shall provide to Abbott
an invoice detailing the Development Costs incurred by Allied during the
quarter then ended. Such invoice shall indicate: (a) the hours charged to
the product by Allied personnel (broken out by function); (b) the project
activities undertaken by such personnel; and (c) the materials and other
resources used to complete testing of the Allied New Product. Abbott shall
pay to Allied the amount of Development Costs included in such quarterly
invoice within thirty (30) days after receipt of the quarterly invoice;
provided, however, that: (a) to the extent Allied incurs any Development
Costs for the year 2004 in excess of two hundred thousand dollars
($200,000), or for any year after 2004 during the Development Period in
excess of eight hundred thousand dollars ($800,000) (such excess referred
to herein in each case as "Carry-Over Amounts"), such Carry-Over Amounts
shall "carry-over" to the next following year and be deemed to have been
expended during such year; (b) Abbott shall have no obligation to pay any
Development Costs (including Carry-Over Amounts) in excess of two hundred
thousand dollars ($200,000) for 2004; (c) Abbott shall have no obligation
to pay any Development Costs (including Carry-Over Amounts) in excess of
eight hundred thousand dollars ($800,000) for any year subsequent to 2004;
and (d) Abbott shall have no obligation to pay any Development Costs once
the aggregate of its payments for Development Costs under this Agreement
has reached two million one hundred fifty thousand dollars ($2,150,000).
3.3 Communication. Allied shall provide to Abbott a non-binding, good
faith development plan for the New Allied Product. Allied shall also
provide to Abbott status reports on the development of the New Allied
Product at least every July 31 for the six month period ending on the
immediately prior June 30, and January 31 for the six month period ending
on the immediately prior December 31, during the Term of this Agreement
(provided that the first such report will be due January 31, 2005). Such
status reports shall include the following information for and as of the
end of such six month period: (a) a description of Allied's activities and
accomplishments in development of the New Allied Product and progress
against Allied's development plan for the New Allied Product; (b) Allied's
updated, non-binding, good faith estimate for completing key milestones in
development of the New Allied Product, such as completion of feasibility,
completion of design requirements, final product testing, FDA submission,
and market
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launch; and (c) Allied's updated, non-binding, good faith estimate of
expenditures for the development of the New Allied Product for the next
six month period. The Parties acknowledge and agree that changes to or
deviations from Allied's development plan shall not constitute a breach of
this Agreement and shall not give rise to any right of Abbott to withhold
any payments under this Agreement.
3.4 Ownership of Intellectual Property. Neither Party grants hereby or has
granted to the other Party any license, express or implied to its
proprietary technology, know-how or rights relating to the subject matter
of this Agreement. Any invention made solely by a Party shall be the
property of such Party. Any invention made jointly by the Parties shall be
jointly owned by the Parties, and the parties shall cooperate in good
faith as to the decisions regarding any such jointly owned invention.
4. REPRESENTATIONS AND WARRANTIES. Each of Abbott and Allied represents and
warrants to the other Party that: (i) it has the requisite corporate or other
power and authority and has taken all corporate or other action necessary in
order to execute, deliver and perform this Agreement and to consummate the
transactions contemplated hereby; and (ii) this Agreement has been duly executed
and delivered by it and constitutes a valid and binding agreement of it
enforceable in accordance with the terms thereof.
5. CONFIDENTIALITY AND PUBLICITY
5.1 Confidentiality. The Confidentiality Agreement, incorporated in this
Agreement by this reference, shall govern matters relating to the
confidentiality and disclosure of Confidential Information of the
respective Parties. The Confidentiality Agreement shall replace the Prior
CDA in its entirety, and at such time as the Confidentiality Agreement is
executed, the Prior CDA shall be deemed revoked by each Party. Any
provisions or requirements of this Agreement notwithstanding, Allied shall
not be required to disclose to Abbott any Confidential Information that
Allied deems a trade secret unless Allied and Abbott shall have negotiated
and executed an additional, mutually acceptable non-disclosure agreement
addressing Allied's trade secret concerns.
5.2 Publicity. Neither Party shall use the name of the other Party in any
publicity, advertising, or in any written, oral or other form of public
disclosure without the express written consent of the other Party.
6. REMEDIES. It is understood and agreed that money damages would not be a
sufficient remedy for any breach of this Agreement or the Confidentiality
Agreement by a Party and that the other Party shall be entitled to equitable
relief, including injunctions and specific performance, as a remedy for any such
breach. Such remedies shall not be deemed to be the exclusive remedies for a
breach of this Agreement but shall be in addition to all other remedies
available at law or equity. In no event shall either Party be liable to the
other for any special, consequential, or incidental damages arising under or as
a result of this Agreement or the termination hereof.
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7. NO ASSUMPTION OF LIABILITY. This Agreement shall not be construed as: (i)
an assumption by Abbott of any liability respecting any Allied KOH Product; or
(ii) an assumption by Allied of any liability respecting any Abbott Product.
8. TERM AND TERMINATION.
8.1 Term. This Agreement shall continue for a term of eight (8) years
following the date of this Agreement. Termination or expiration of this
Agreement shall not affect any rights or obligations that have accrued
prior thereto.
8.2 Survival. The provisions of Section 3.4 and Articles 4, 5, 6, 7, 8 and
9 of this Agreement, and the Confidentiality Agreement, shall survive any
termination of this Agreement and shall remain in full force and effect
thereafter.
9. MISCELLANEOUS
9.1 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement.
9.2 Governing Law. This Agreement shall be governed by and construed and
interpreted in accordance with the laws of the State of Illinois
irrespective of the choice of laws principles of the State of Illinois, as
to all matters, including matters of validity, construction, effect,
enforceability, performance and remedies.
9.3 Assignability. This Agreement shall be binding upon and inure to the
benefit of the Parties hereto and their respective successors and
permitted assigns; provided, however, that neither Party may assign its
rights or delegate its obligations under this Agreement without the
express prior written consent of the other Party hereto. Notwithstanding
the foregoing, this Agreement shall be assignable by either Party in whole
with the prior written consent of the other Party (which consent shall not
be unreasonably withheld, delayed or conditioned) to the extent an actual
assignment of this Agreement is necessary, in connection with: (i) a
merger or consolidation of such Party if such Party is not the surviving
entity; or (ii) the sale of all or substantially all of the assets of such
Party to which this contract relates; in each case so long as the
resulting, surviving or transferee entity assumes all the obligations of
the assignor hereunder by operation of law or pursuant to an agreement in
form and substance reasonably satisfactory to the other Party.
9.4 Relationship of the Parties. The relationship of the parties is that
if independent contractors, and no agency or partnership is created by
this Agreement.
9.5 Notices. All notices or other communications under this Agreement must
be in writing and shall be deemed to be duly given: (i) when delivered in
person; (ii) upon transmission via confirmed facsimile transmission,
provided that such transmission is followed by delivery of a physical copy
thereof in person, via U.S. first class mail, or via a private express
mail courier; or (iii) two (2) days after deposit with a private express
mail courier, in any such case addressed as set forth below. Any Party
may, by notice to
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the other Party, change the address to which such notices are to be given.
If to Abbott, to:
Xxxxxx Laboratories
000 Xxxxxx Xxxx Xxxx
Xxxxxxxx XX00, Xxxx. 096F
Xxxxxx Xxxx, Xxxxxxxx 00000
Attn: DVP/GM Acute Care Pharmaceuticals
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx Laboratories
000 Xxxxxx Xxxx Xxxx
Xxxxxxxx XX0X, Xxxx. 322
Xxxxxx Xxxx, Xxxxxxxx 00000-0000
Attn: Division Vice President, Domestic Legal Operations
Facsimile: (000) 000-0000
If to Allied, to:
Allied Healthcare Products, Inc.
0000 Xxxxxxxx Xxxxxx
Xx. Xxxxx, XX 00000
Attn: President
Facsimile: (000) 000-0000
With a copy to:
Xxxxxx X. Xxxxxx, Esq.
Xxxxxxxxxxxx, Xxxxxx & Xxxx, P.C.
00 Xxxxx Xxxxxxxx
Xxxxxxxxx Xxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
9.6 Severability. If any provision of this Agreement or the application
thereof to any entity or person or circumstance is determined by a court
of competent jurisdiction to be invalid, void or unenforceable, the
remaining provisions hereof, or the application of such provision to any
entity or person or circumstances or in jurisdictions other than those as
to which it has been held invalid or unenforceable, shall remain in full
force and effect and shall in no way be affected, impaired or invalidated
thereby, so long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner adverse to any Party.
Upon such determination, the Parties shall negotiate in good faith
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in an effort to agree upon such a suitable and equitable provision to
effect the original intent of the Parties.
9.7 Integration Clause. This Agreement, together with the exhibits and
schedules attached hereto, and the Confidentiality Agreement, (i)
constitutes the entire agreement of the Parties with respect to the
subject matter hereof ; and (ii) supersedes all prior agreements,
correspondence, term sheets, memorandum and discussions of the Parties
with respect to the subject matter.
9.8 Waivers of Default. Waiver by either Party of any default by the other
Party of any provision of this Agreement shall not be deemed a waiver by
the waiving Party of any subsequent or other default, nor shall it
prejudice the rights of the other Party.
9.9 Headings. The article, section and paragraph headings contained in
this Agreement are for reference purposes only and shall not affect in any
way the meaning or interpretation of this Agreement.
9.10 Amendments. No provisions of this Agreement shall be deemed amended,
supplemented or modified unless such amendment, supplement or modification
is in writing and signed by the authorized representative of both Parties.
No provisions of this Agreement shall be deemed waived unless such waiver
is in writing and signed by the authorized representative of the Party
against whom it is sought to be enforced.
9.11 Interpretation. Words in the singular shall be deemed to include the
plural and vice versa and words of one gender shall be deemed to include
the other genders as the context requires. The terms "hereof," "herein,"
and "herewith" and words of similar import shall, unless otherwise stated,
be construed to refer to this Agreement as a whole (including all of the
Schedules hereto) and not to any particular provision of this Agreement.
Article, section, and schedule references are to the articles, sections,
and schedules to this Agreement unless otherwise specified. Unless
otherwise stated, all references to any agreement shall be deemed to
include the exhibits, schedules and annexes to such agreement. The word
"including" and words of similar import when used in this Agreement shall
mean "including, without limitation," unless the context otherwise
requires or unless otherwise specified. The word "or" shall not be
exclusive. Unless otherwise specified in a particular case, the word
"days" refers to calendar days. References herein to this Agreement shall
be deemed to refer to this Agreement as of the date hereof and as it may
be amended thereafter, unless otherwise specified.
9.12 Mutual Drafting. This Agreement shall be deemed to be the joint work
product of the Parties and any rule of construction that a document shall
be interpreted or construed against a drafter of such document shall not
be applicable.
9.13 Further Assurances. Each Party shall take or cause to be taken such
action, execute or cause to be executed such instruments, and do or cause
to be done such acts as may be reasonably necessary to implement and
effectuate the provisions of this Agreement in accordance with the intent
of the Parties.
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* * * *
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of
the date first written above.
XXXXXX LABORATORIES ALLIED HEALTHCARE PRODUCTS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxx Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxx Name: Xxxx Xxxxxxxx
Title: Senior Vice President Title: President
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EXHIBIT A
CONFIDENTIALITY AGREEMENT
THIS CONFIDENTIALITY AGREEMENT, dated as of August 27, 2004, is by and
between XXXXXX LABORATORIES, an Illinois corporation ("Abbott") and ALLIED
HEALTHCARE PRODUCTS, INC., a Delaware corporation ("Allied").
RECITALS:
A. The parties have simultaneously herewith entered into an agreement
("Primary Agreement") regarding the withdrawal from the market of Allied
KOH Products (as defined in the Primary Agreement) from the market as well
as the development of a new product for such market.
B. The parties have previously entered into a Bilateral Confidential
Disclosure Agreement dated April 6, 2004 (the "Prior CDA").
C. The parties have agreed to execute a mutual confidentiality agreement
which would supersede the Prior CDA and apply to disclosures of all
Confidential Information (as defined hereafter) by each Party in
connection with the Primary Agreement as well as prior disclosures made
pursuant to the Prior CDA.
NOW, THEREFORE, in consideration of the foregoing recitals and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties hereby agree as follows:
1. DEFINITIONS. Capitalized terms used herein shall have the same meaning as
set forth in the Primary Agreement unless the context otherwise clearly
indicates. Further, the following additional capitalized terms should have the
following meanings:
(a) "Business Information" means any non-public information, data or facts
concerning the business, operations, plans, finances, prospective
finances, products, services, customers, suppliers and/or assets of a
Party, including, but not limited to, all information relating to,
contracts, supply arrangements, financial condition, financial
projections, business plans, plans for product development, financial
statements, contractual arrangements with lenders and prospective
transactions with Third Parties, the existence and terms of the Primary
Agreement and the content of negotiations relating to the Primary
Agreement.
(b) "Confidential Information" means any Business Information and/or
Technical Information disclosed by Disclosing Party to Receiving Party on,
before or after the date hereof in connection with negotiation or
performance of the Primary Agreement that is marked or otherwise
designated as being "Confidential Information", including, without
limitation, information disclosed under the Prior CDA; provided, however,
Confidential Information does not include information that:
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(i) was known by Receiving Party prior to the date of this Agreement
as evidenced by written records of Receiving Party;
(ii) is or becomes available to the public through no wrongful act
of Receiving Party;
(iii) was verifiably developed by Receiving Party without the
benefit of any information provided by or on behalf of Disclosing
Party; or
(iv) becomes available to Receiving Party from a source which is not
bound by confidentiality restrictions.
(c) "Disclosing Party" shall mean the Party disclosing Confidential
Information to Receiving Party.
(d) "Prior CDA" has the meaning set forth in Recital B hereof.
(e) "Receiving Party" shall mean the receiver of Confidential Information
from the Disclosing Party.
(f) "Related Parties" means a Party's Affiliates, and such Party's and its
Affiliates directors, officers, employees, agents, and advisors
(including, without limitation, attorneys, accountants, consultants,
bankers and financial advisors).
(g) "Technical Information" means any technology, intellectual property,
mechanisms, technical drawings, research, techniques, electronic
architecture, circuitry, know-how, processes, ideas, inventions (whether
or not patentable), schematics, and other similar technical information of
a Party, and includes the manner in which any such information may derive
or be combined with other information, or synthesized, or used by the
Disclosing Party.
2. COVENANTS AGAINST DISCLOSURE.
(a) Commencing with the date of first disclosure in connection with the
Prior CDA (regardless of whether such disclosure occurred prior to the
date hereof), and for five (5) years from the date of last disclosure in
connection with the Primary Agreement; Receiving Party shall not, nor
shall any of its Affiliates, except as required by law: (i) disclose,
divulge or communicate any Confidential Information to any Person other
than its Related Parties having a need to know such information and under
a duty of confidentiality consistent with the provisions of this
Agreement; or (ii) utilize any of the Confidential Information of the
Disclosing Party for any purpose whatsoever, except for the negotiation
of, performance under, and resolution of disputes under the Primary
Agreement.
(b) Nothing herein requires a Party to make any disclosures hereunder
except to the extent necessary for a Disclosing Party to fulfill its
obligations under this Agreement or the Primary Agreement.
(c) A Receiving Party shall be responsible and liable for any disclosures
of a Disclosing Party's Confidential Information by any Related Parties of
the Receiving Party.
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(d) In the event that a Receiving Party is requested or required (by law,
statute, regulation, oral questions, interrogatories, requests for
information or documents in legal proceedings, subpoena, civil
investigative demand or other similar process) to disclose any
Confidential Information, such Receiving Party shall provide the
Disclosing Party with prompt written notice of any such request or
requirement so that the Disclosing Party may seek a protective order or
other appropriate remedy and/or waive compliance with the provisions of
this Agreement. If a protective order, other remedy or waiver has not been
obtained, and a Receiving Party or any of its advisors or representatives
are, in the opinion of counsel, legally compelled to disclose Confidential
Information to any tribunal or Third Party or else stand liable for
contempt or suffer other censure or penalty, such Receiving Party or its
advisors or representatives may, without liability hereunder, disclose to
such tribunal or Third Party only that portion of the Confidential
Information that such counsel advises the Receiving Party is legally
required to be disclosed, provided that the Receiving Party exercises
commercially reasonable efforts to preserve the confidentiality of the
Confidential Information, including, without limitation, by cooperating
with Disclosing Party, at the Disclosing Party's expense, to obtain an
appropriate protective order or other reliable assurance that confidential
treatment will be accorded the Confidential Information by such tribunal
or Third Party.
(e) Notwithstanding the foregoing, disclosure of the existence of the
Primary Agreement in connection with any filing required by any applicable
governmental authorities, including the filing of the Primary Agreement
with the Securities and Exchange Commission, shall not be deemed a
violation of the confidentiality provisions of this Agreement or the
Primary Agreement, and from and after the date of such filing, the
existence of the Primary Agreement and all terms of the Primary Agreement
disclosed in such filing shall no longer be "Confidential Information" for
purposes of this Agreement.
3. RETURN OF CONFIDENTIAL INFORMATION. Upon the written request by Disclosing
Party to Receiving Party, except for Confidential Information a Disclosing Party
is required to provide to Receiving Party pursuant to the Primary Agreement, all
Confidential Information (including, but not limited to, all copies (whether in
written or digital electronic form) of Confidential Information) shall, at the
option of Disclosing Party, be destroyed or returned to Disclosing Party in a
manner designated by Disclosing Party in such written notice; provided, that the
Receiving Party may retain one copy of the Confidential Information solely for
the purpose of evaluating, enforcing and complying with its rights and
obligations under this Agreement. In the event Disclosing Party elects that such
Confidential Information be destroyed, Receiving Party shall certify in writing
to Disclosing Party that all such Confidential Information has been so
destroyed, subject to the preceding proviso.
4. NO AGREEMENT OR REPRESENTATIONS. Except to the extent expressly granted in
the Primary Agreement, the Parties agree that no rights or licenses under any
intellectual property or Confidential Information owned or disclosed by one
Party are granted to the other Party by this Agreement. Except to the extent
expressly provided in the Primary Agreement, neither Party makes any
representation or warranty with respect to the accuracy or completeness of any
Confidential Information.
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5. REMEDIES. In the event of a breach of this Agreement, each Party shall
have available to it the rights and remedies specified in the Primary Agreement,
and all disputes, controversies or claims under this Agreement shall be resolved
in the manner set forth in the Primary Agreement.
6. NOTICES. Any notice given pursuant to this Agreement shall be sufficient
and be deemed given or delivered in the manner set forth in the Primary
Agreement.
7. MISCELLANEOUS.
(a) Governing Law. This Agreement shall be governed by and construed and
interpreted in accordance with the laws of the State of Illinois
irrespective of the choice of laws principles of the State of Illinois, as
to all matters, including matters of validity, construction, effect,
enforceability, performance and remedies.
(b) Severability. If any provision of this Agreement or the application
thereof to any entity or person or circumstance is determined by a court
of competent jurisdiction to be invalid, void or unenforceable, the
remaining provisions hereof, or the application of such provision to any
entity or person or circumstances or in jurisdictions other than those as
to which it has been held invalid or unenforceable, shall remain in full
force and effect and shall in no way be affected, impaired or invalidated
thereby, so long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner adverse to any Party.
Upon such determination, the Parties shall negotiate in good faith in an
effort to agree upon such a suitable and equitable provision to effect the
original intent of the Parties.
(c) Integration Clause. This Agreement, together with the Primary
Agreement, (i) constitutes the entire agreement of the Parties with
respect to the subject matter hereof ; and (ii) supersedes all prior
agreements, correspondence, term sheets, memorandum and discussions of the
Parties with respect to the subject matter, including the Prior CDA.
(d) Waivers of Default. Waiver by either Party of any default by the other
Party of any provision of this Agreement shall not be deemed a waiver by
the waiving Party of any subsequent or other default, nor shall it
prejudice the rights of the other Party.
(e) Headings. The article, section and paragraph headings contained in
this Agreement are for reference purposes only and shall not affect in any
way the meaning or interpretation of this Agreement.
(f) Amendments. No provisions of this Agreement shall be deemed amended,
supplemented or modified unless such amendment, supplement or modification
is in writing and signed by the authorized representative of both Parties.
No provisions of this Agreement shall be deemed waived unless such waiver
is in writing and signed by the authorized representative of the Party
against whom it is sought to be enforced.
(g) Interpretation. Words in the singular shall be deemed to include the
plural and vice versa and words of one gender shall be deemed to include
the other genders as the context requires. The
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terms "hereof," "herein," and "herewith" and words of similar import
shall, unless otherwise stated, be construed to refer to this Agreement as
a whole (including all of the Schedules hereto) and not to any particular
provision of this Agreement. Article, section, and schedule references are
to the articles, sections, and schedules to this Agreement unless
otherwise specified. Unless otherwise stated, all references to any
agreement shall be deemed to include the exhibits, schedules and annexes
to such agreement. The word "including" and words of similar import when
used in this Agreement shall mean "including, without limitation," unless
the context otherwise requires or unless otherwise specified. The word
"or" shall not be exclusive. Unless otherwise specified in a particular
case, the word "days" refers to calendar days. References herein to this
Agreement shall be deemed to refer to this Agreement as of the date hereof
and as it may be amended thereafter, unless otherwise specified.
(h) Mutual Drafting. This Agreement shall be deemed to be the joint work
product of the Parties and any rule of construction that a document shall
be interpreted or construed against a drafter of such document shall not
be applicable.
(i) Incorporation by Reference. The provisions of this Agreement are
incorporated into the Primary Agreement by this reference.
(j) Conflict of Provisions. In the event of a conflict between the
provisions of this Agreement and the provisions of the Primary Agreement,
the provisions of the Primary Agreement shall govern.
(k) Assignability. This Agreement shall inure to the benefit of the
Parties and their respective successors and assigns. The provisions of the
Primary Agreement governing assignment of the Primary Agreement shall
apply to the assignment of this Agreement.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement as of
the date first above written.
XXXXXX LABORATORIES ALLIED HEALTHCARE PRODUCTS, INC.
By: /s/Xxxxxxx X. Xxxxxxx By: /s/Xxxx Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxx Name: Xxxx Xxxxxxxx
Title: Senior Vice President Title: President
Exhibit 10
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