EXHIBIT 10
DISTRIBUTION AND LICENSE AGREEMENT
This Distribution and Manufacturing License Agreement ("Agreement") is entered
into as of the 28th day of March, 2005 by and between Asahi Kasei Medical Co.,
Ltd., a Japanese corporation ("ASAHI") with an office and place of business at
9-1, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇-▇▇, ▇▇▇▇▇, ▇▇▇-▇▇▇▇ ▇▇▇▇▇, and THERMOGENESIS
CORP., a Delaware corporation, ("THERMO") with an office and place of business
at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇.
WITNESSETH:
WHEREAS, THERMO represents that it owns certain intellectual property rights
covering certain inventions relating to the design and manufacture of a
"CryoSeal(R) System" and the Products (defined below) for the rapid harvesting
of cryoprecipitate and thrombin from human plasma and has the right to grant the
license herein contained;
WHEREAS, THERMO represents that it has filed patent applications specified in
Exhibit A (The "Patent Applications") and is preparing additional patent
applications, all of which either have been and/or will be filed in the
Territory; and
WHEREAS, ASAHI desires to obtain, and THERMO is willing to grant certain
manufacturing and distribution rights for the Product (as defined below);
WHEREAS, the parties executed the "Distribution and Manufacturing License
Agreement" as of 29th day of May, 1996, as amended by "Amendment to Distribution
and Manufacturing License Agreement" as of June 21, 1999 ("Previous Agreements")
under which THERMO granted to ASAHI the right and license to manufacture or have
manufactured, the Auto-Cryo Kit in Japan (with the exception of the Applicators)
and the unrestricted right to market and distribute the Device, Auto-Cryo Kit
and Applicators in Japan and ASAHI paid to THERMO License and Distribution Fee
equal to ^Removed pursuant to Rule 24b-2 under the Securities Exchange Act of
1934^ under Section 3(a) of the Previous Agreements.
WHEREAS, ASAHI purchased common shares of THERMO equivalent to US$700,000 under
Section 3(j) of the Previous Agreements.
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WHEREAS, Asahi desires to market and obtain distribution and marketing rights
for the TAD Stand Alone (as defined herein) on a non-exclusive basis within the
territory;
WHEREAS, THERMO and ASAHI now desire to unify such "Distribution and
Manufacturing License Agreement" and "Amendment to Distribution and
Manufacturing License Agreement" into one text and make several clarifications
and modifications to the terms and conditions thereof.
NOW, THEREFORE, in consideration of the foregoing and for the other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties, intending to be legally bound, hereby agree as
follows:
1. Definitions.
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As used in this Agreement, the following terms shall have the meanings
hereinafter set forth:
a. "Applicators" shall mean the hand held devices for mixing and applying
the cryoprecipitate and thrombin produced by the Processing Disposable
to the wound site. It is understood each type of applicator listed in
Exhibit B shall be included in Applicators.
b. "Asian Pacific Rim Countries" means South and North Korea, Taiwan, the
Philippines, Thailand, Singapore, India and Malaysia.
c. "CryoSeal System" shall mean the system for harvesting fibrinogen rich
cryoprecipitate and activated thrombin simultaneously from human plasma
which includes the Device, Processing Disposable, Thrombin Reagent and
Applicators.
d. "Device" shall mean the thermodynamic device on which the Processing
Disposable will be placed and which will precisely control and alter
the temperature of the plasma in order to achieve the separation and
collection of the cryoprecipitate. It is understood that CS-1 listed in
Exhibit B shall be included in the Device.
e. "Hanging Rack" shall mean the rack to hang Processing Disposable for
the Device.
f. "Intellectual Property Rights" means the Licensed Patents and the
Know-How.
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g. "Know-How" shall mean all technical information, secret processes,
formulae, designs and data relating to the manufacture of the Product
presently owned by THERMO or acquired by it during the term of this
Agreement and clinical data and any other technical information
provided by THERMO to ASAHI hereunder.
h. "Licensed Patents" shall mean; (i) the Patent Applications and any
corresponding national and regional patent applications with respect to
the Product in the Territory; (ii) any patent applications with respect
to the Product in the Territory that are or will be owned or controlled
by THERMO during the term of this Agreement; (iii) any patent issued on
the patent applications stated in (i) and (ii); and (iv) any patent
maturing from (i), (ii) and (iii) including all extensions,
continuations, continuations-in-part or divisions, reexaminations and
reissues; or equivalent, if any, related to the Product.
i. "Point of Shipment" means THERMO's Rancho Cordova, California
manufacturing facilities, Kawasumi's manufacturing facility in Thailand
or the manufacturing facilities designated by THERMO and agreed by
ASAHI.
j. "Processing Disposable" shall mean the sterile blood processing
disposable for harvesting fibrinogen rich cryoprecipitate and/or
activated thrombin from plasma (not including Thrombin Reagent). It is
understood that CP-3 Disposable, a sterile blood processing disposable
with TAD, listed in Exhibit B shall be included in the Processing
Disposable.
k. "Product" shall mean Applicators, Device, Hanging Rack, Processing
Disposable, TAD, TAD Stand Alone, Thrombin Reagent, and/or Warming
Tray, including those which are improved or modified. It is understood
that CryoSeal System shall be included in the Product.
l. "TAD" (Thrombin Activation Device, formerly known as ATAK) shall mean
the sterile disposable apparatus for the extraction of activated
thrombin from human plasma except for TAD Stand Alone.
m. "TAD Stand Alone" shall mean the TAD in the form of a product designed
for stand-alone use or any form other than a part of the Processing
Disposable. It is understood that TAD Stand Alone includes Thrombin
Processing Device (TPD) and IC TAD listed in Exhibit B, of which
specification shall be determined by the parties.
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o. "Territory" shall mean the country of Japan.
p. "Thrombin Reagent" shall mean the reagent for production of thrombin to
be injected into the TAD or TAD Stand Alone disposables.
q. "Warming Tray" shall mean the device to warm syringes of
cryoprecipitate and/or thrombin in the sterile field.
2. Appointment of Exclusive Distributor.
-----------------------------------------
THERMO hereby appoints ASAHI as THERMO's exclusive distributor to market,
distribute and sell the Product except for TAD Stand Alone to be supplied
by THERMO to all existing and potential customers for any purpose
including, but not limited to, surgical procedures and regeneration medical
treatment within the Territory. During the term of this Agreement, THERMO
may not directly or indirectly market, distribute or sell the Product
except for TAD Stand Alone within the Territory. ASAHI may appoint one or
more sub-distributors within any portion of the Territory.
3. Appointment of Non-Exclusive Distributor.
--------------------------------------------
THERMO hereby appoints ASAHI as THERMO's non-exclusive distributor to
market, distribute and sell the TAD Stand Alone to be supplied by THERMO to
all existing and potential customers for any purpose including, but not
limited to, surgical procedures and regeneration medical treatment within
the Territory. ASAHI may appoint one or more sub-distributors within any
portion of the Territory.
4. Clinical Trials and Governmental Approval.
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a. Clinical Trial(s) and Governmental Approval in the Territory. ASAHI
shall have sole responsibility for conducting preclinical and clinical
trial(s) and shall make all regulatory submissions for the approval by
Ministry of Health, Labor and Welfare of Japan ("MHLW") and supplement
and amendment of such approval necessary for the sale of the Product
for the application for which ASAHI intends to sell the Product and
for approval by MHLW to receive the reimbursement of the Product in
the Territory if available. THERMO shall cooperate with ASAHI for such
trial(s) and regulatory submissions upon reasonable requests by ASAHI.
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ASAHI shall purchase the Product from THERMO for preclinical and
clinical trial(s) in the Territory at market pricing provided upon
request, if necessary and THERMO shall provide such materials upon
ASAHI's reasonable request for shipment to ASAHI as scheduled by
THERMO. All shipping costs and any other special costs arising from
the express request of ASAHI will be paid by ASAHI.
b. FDA Approval.
-------------
(1) THERMO shall make its best efforts to obtain the United States
Food and Drug Administration ("FDA") approval to market the
CryoSeal System and shall submit periodic reports to show the
status to ASAHI at least once every calendar quarter, beginning
with the first full calendar quarter following execution of this
Agreement.
(2) THERMO shall submit to FDA an application to market the CryoSeal
System promptly upon completion of clinical trials and review of
trial outcomes and preparation of submission.
c. THERMO shall provide to ASAHI, when and as available, all test data,
clinical trial studies (including, but not limited to, all information
exchanged with FDA, within two weeks of receipt from FDA or submission
to FDA) and related information available to THERMO in order to assist
ASAHI in obtaining governmental approvals for the CryoSeal System.
5. Supply of the Product for Distribution.
-------------------------------------------
a. After obtaining regulatory approval by MHLW set forth in Section 4(a),
ASAHI shall purchase from THERMO and THERMO shall supply to ASAHI the
Product which is listed in Exhibit B for distribution in the Territory
at pricing to be separately agreed by the parties and to be shown in
Exhibit B, provided that the parties acknowledge that such prices set
forth in Exhibit B are based on the estimate of the reimbursement
prices to be approved by MHLW and agree to review and adjust the price
set forth in Exhibit B after obtaining the reimbursement approval by
MHLW. THERMO may have Kawasumi Laboratories, Inc. with its principle
office of business at ▇-▇▇-▇▇, ▇▇▇▇▇▇-▇▇, ▇▇▇▇▇▇▇▇▇-▇▇, ▇▇▇▇▇
▇▇▇-▇▇▇▇, ▇▇▇▇▇ manufacture the Product to be supplied to ASAHI,
provided that, it is understood that this provision shall not release
THERMO from its obligations hereunder.
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b. (1) Upon agreement of pricing described in Section 5(a), ASAHI agrees
to project, and then purchase the minimum quantity of Processing
Disposable, Applicators and Thrombin Reagent from THERMO as set
forth on Exhibit C for each YEAR. For the purpose of this
Section, "YEAR" shall mean one (1) year period commencing on
April 1st that comes after the date of reimbursement approval on
Processing Disposable, Applicators and Thrombin Reagent by MHLW
and each one (1) year period thereafter. In addition, for the
purpose of this Section, Processing Disposable, Applicators and
Thrombin Reagent shall be considered purchased upon the delivery
under Section 5(d).
(2) The parties acknowledge that the minimum purchase quantity for
each YEAR set forth in Exhibit C are based on the prices listed
Exhibit B and agree to review and adjust the minimum purchase
quantity set forth in Exhibit C if the prices are adjusted.
(3) If ASAHI manufactures by itself Processing Disposable, Applicators
and/or Thrombin Reagent pursuant to Sections 7(a) and/or 7(f), the
minimum purchase quantity for a YEAR set forth in Exhibit C shall
be deducted by the number of units of Processing Disposable,
Applicators and/or Thrombin Reagent manufactured and sold by ASAHI
in such a YEAR. For the purpose of this Section, Processing
Disposable, Applicators and/or Thrombin Reagent shall be
considered manufactured and sold upon the shipment thereof.
(4) The parties understand that any failure to meet the minimum
purchase quantity in each Year set forth in Exhibit C due to any
cause not attributable to ASAHI including, but not limited to,
THERMO's rejection of ASAHI's order or failure to deliver all or
part of the Product in accordance with an accepted order shall not
be deemed ASAHI's breach of this Section and in such case THERMO
shall have no right to terminate this Agreement pursuant to
Section 20(e).
c. Order and Acceptance. All orders for the Product to be supplied by
THRMO to ASAHI shall be by means of a signed written purchase order, in
a form to be furnished by THERMO, which shall be submitted to THERMO at
THERMO's address for notice purposes set forth in Section 27, and shall
request a delivery date. Orders may be placed by fax. THERMO shall make
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its best effort to accept ASAHI's purchase order. THERMO shall notify
ASAHI in writing of its acceptance or rejection of an order within
seventy-two (72) hours of receipt. THERMO shall have no liability to
ASAHI with respect to purchase orders that are rejected by THERMO
despite its best effort in accordance with the foregoing, provided
that, THERMO shall accept a purchase order placed ninety (90) days
before the delivery date.
d. Delivery Term. The delivery term for the Product to be delivered by
THERMO to ASAHI shall be F.O.B. THERMO Point of Shipment. THERMO shall
render ASAHI documents and cooperation necessary for the exportation
and importation of the Product.
e. Invoicing; Payment. THERMO shall submit an invoice to ASAHI with each
shipment of the Product ordered by ASAHI. Each invoice shall be due and
payable net thirty (30) days from the date of ASAHI's receipt of the
Product at ASAHI's facility. All invoices shall be sent to ASAHI's
address for notice purposes set forth in Section 27, without regard to
the actual shipping address for the Product. Each such invoice shall
state ASAHI's aggregate and unit purchase price for the Product in the
relevant shipment. ASAHI shall make all payments to a bank account
designated by THERMO.
f. All Product delivered by THERMO to ASAHI pursuant to this Agreement
shall be suitably packed for surface or air shipment, in ASAHI's sole
discretion, in THERMO's standard shipping cartons, marked for shipment
to such location or locations as ASAHI may designate. The Product
listed in Exhibit B except for Device, Hanging Rack and Warming Tray
delivered by THERMO to ASAHI pursuant to this Agreement shall be
sterilized in accordance with applicable laws and regulations within
ninety (90) days before the delivery. For such sterilization to occur
on a timely basis, ASAHI acknowledges that the purchase order should be
placed to THERMO not later than ninety (90) days before the delivery.
g. The specification of any Product to be supplied to ASAHI by THERMO
shall be agreed on by the parties and provided to ASAHI by THERMO. The
specification of such Product or any part of it and the manufacturing
process for such Product including sterilization process shall not be
changed unless otherwise agreed by the parties.
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h. Payment Currency. All payments for the price of the Product due or
payable under this Agreement shall be made in United States Dollars
("USD"). The parties will meet to negotiate a new price for items
listed in Exhibit B annually or upon either party's request.
6. Warranty and Liability.
---------------------------
The warranty for the Product supplied by THERMO to ASAHI under this
Agreement shall be as provided below:
a. Specific Warranties. THERMO warrants that:
(1) Title. The title to the Product supplied to ASAHI from THERMO,
when conveyed to ASAHI, shall be good and transferred rightfully
except in circumstances where (a) ASAHI has reason to know that
THERMO does not claim title, or (b) an agreement between the
parties otherwise provides; and they shall be delivered free from
any security interest or other lien or encumbrance except as
otherwise expressly agreed upon by ASAHI;
(2) Workmanship. The Product shall, upon the tender of delivery, be
free from defects in (a) the composition or substance of materials
and (b) in THERMO's workmanship or in materials arising from
THERMO's workmanship;
(3) Conformity. The Product supplied to ASAHI by THERMO shall, upon
tender of delivery conform to all applicable specifications and
drawings which are a part of any contractual documents which
incorporate this clause and to any express representations or
descriptions contained in such contractual documents; and
(4) Unless otherwise provided herein, THERMO does not warrant the
result of various possible uses or purposes for the Product or
warrant that the Product is fit or intended for any particular use
or intended purpose.
b. Notice: Breach of Warranty: Remedy. Upon notice from ASAHI to THERMO
of a breach of the Warranty in Section 6(a)(l), above THERMO shall
promptly secure removal of any encumbrance on the title. Except as set
forth in Section 19 below, ASAHI's remedy for a breach of the
warranties set forth in Sections 6(a)(2) and 6(a)(3) above, and
THERMO's obligation and liability therefor, are expressly limited to
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the repair, rework or replacement of any non-conforming Product, or
parts, or components thereof, not including, however, any costs
occasioned by the removal or reinstallation of such materials, parts
or components. At THERMO's request, ASAHI shall return any such
non-conforming Product to THERMO at its manufacturing facility in
Rancho Cordova, CA, USA, at THERMO's expense. Replacement or repaired
or reworked supplies shall be returned to ASAHI at THERMO's expense.
c. In case of the Device, THERMO's obligation under Section 6(b) with
respect to the breach of Section 6(a)(2) and (3) is limited to defects
becoming apparent within the shorter of (i) two years from the date of
delivery of the Device from THERMO to ASAHI or (ii)one (1) year from
the date of installation of the Device at the customer's premises.
d. THERMO's obligation under Section 6(b) with respect to the breach of
Sections 6(a)(2) and 6(a)(3) is limited to defects becoming apparent
within the usable period of the Product approved by MHLW in case of
the Product which is required to be sterilized pursuant to the
applicable law in the Territory.
e. THERMO's obligation under Section 6(b) with respect to the breach of
Sections 6(a)(2) and 6(a)(3) is limited to defects becoming apparent
within twelve (12) months from the date of delivery of the Product in
case of any Product other than Device and the Product mentioned in
Section 6(d).
f. ASAHI shall notify of written notification stating such particulars as
may reasonably be necessary to notify THERMO of the nature of the
asserted non-conformance promptly after such defect becomes apparent,
but in no event later than fifteen (15) days following expiration of
each period stated in Sections 6(c), (d) and (e). The Product or parts
or components thereof repaired, reworked, or furnished in replacement
pursuant to this Section 6(b) shall, upon installation or delivery to
ASAHI, also be subject to the provisions of this clause to the same
extent as Product initially delivered or installed.
g. Agreement on Warranties. THERMO and ASAHI agree that Section 6 has
been the subject of discussion and is fully understood by the parties,
and that the express warranties, the limitation of ASAHI's remedies,
the exclusion of and waiver by ASAHI of all other warranties, remedies
and damages, all as set forth in this paragraph, are in consideration
of the price of the Product and the other mutual agreements of the
parties set forth in any contractual documents which incorporate this
clause; provided, however, that this Section 6 shall not apply in case
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of product liability claims and the provision for indemnification
found in Section 19.
7. Grant of Exclusive License and Manufacturing.
-------------------------------------------------
▇. ▇▇▇▇▇ of Exclusive License. THERMO hereby grants ASAHI the exclusive
right and license under the Intellectual Property Right, with the right
to sublicenses, (i) to use, market, distribute and sell the Product
(except for TAD Stand Alone, which are provided for in Section 8 below
on a non-exclusive basis) within the Territory, (ii) to manufacture and
have manufactured the Processing Disposable and Thrombin Reagent and
any improvement and modification thereof within the Territory, for any
purpose including, but not limited to, surgical procedures. During the
term of this Agreement, THERMO may not grant to any third party a right
or license that conflicts with the right and license granted to ASAHI
under this Section 7(a) within the Territory.
b. ASAHI agrees that it shall conform to the good manufacturing practice
and performance standards and other requirements of the MHLW that are
applicable to the manufacture and distribution of the Product in the
Territory. ASAHI will deliver to THERMO the following information and
corroborative data on their manufacturing and testing of Processing
Disposable and Thrombin Reagent manufactured by ASAHI:
o Materials used in Processing Disposable and Thrombin Reagent
o Biocompatibility testing that complies with Tripartite Guidance
o Labeling
o Intended Use
o Characterization of the Cryoprecipitate
and/or thrombin
o Sterilization Data
c. Sell Back of Products. ASAHI agrees, upon terms and other standard
conditions to be agreed upon by the parties, to sell Processing
Disposable, Thrombin Reagent and Applicators manufactured by ASAHI to
THERMO at a price which is equivalent to ASAHI's manufacturing cost and
transportation and insurance charges plus ^Removed pursuant to Rule
24b-2 under the Securities Exchange Act of 1934^.
d. Technical Support. THERMO shall make available to ASAHI, all technical
and other information in its possession at any time during the term of
this Agreement relating to the manufacture of the Processing Disposable
and Thrombin Reagent, including specifications and quality control
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information. THERMO shall, during the period from the date of ASAHI's
request to the date twelve (12) months thereafter, make available to
ASAHI the services of such personnel of THERMO as THERMO deems
necessary, or as reasonably requested by ASAHI, provided however, that
such time shall not exceed sixty (60) hours of time during any calendar
quarter and provided that ASAHI gives THERMO at least thirty (30) days
advance notice of the need for such time and provides THERMO with a
report of the work assistance needed. Thereafter, during the term of
this Agreement, in order to reasonably assist ASAHI in its efforts to
manufacture or have manufactured Processing Disposable and Thrombin
Reagent, THERMO shall provide technical assistance as the parties may
agree. All technical support to be provided pursuant to this Section
shall be at ASAHI's expense at THERMO's then standard rates and
charges, including living and travel expenses from the U.S. to Japan,
and back to the U.S., if requested by ASAHI.
e. Manufacturing Information. Under Joint Escrow Agreement dated 8th day
of June 2000, executed by THERMO, ASAHI and Tashiro Patent Office,
located at 2-16, ▇▇▇▇▇▇▇▇▇ ▇-▇▇▇▇▇, ▇▇▇▇▇▇-▇▇, ▇▇▇▇▇ ▇▇▇-▇▇▇▇ ▇▇▇▇▇
("Tashiro Patent Office")(such agreement shall be referred to as
"Escrow Agreement"), THERMO shall deposit in Tashiro Patent Office in
Japan a certified duplicate copy of all technical and other information
relating to the manufacture of the Device and Applicators, including
specifications, drawings and quality control information ("Technical
Documentation"), which shall in turn be delivered by the Tashiro Patent
Office to ASAHI upon the occurrence of events stated in Section 7(f),
as certified by the parties. The Technical Documentation shall be
updated by additional certified copies of current information by THERMO
immediately after the execution hereof, annually on or before August 30
of each year. ASAHI shall pay for all storage and holding fees charged
by Tashiro Patent Office for holding the Technical Documentation. In
addition to the foregoing, and following the occurrence of an event
stated in Section 7(f), THERMO shall from time to time, and as
resources are available, make available to ASAHI the services of such
personnel of THERMO as THERMO deems necessary in order to assist ASAHI
in its efforts to manufacture or have manufactured the Device and
Applicators. THERMO will make available technical and support
assistance, as may be requested by ASAHI and agreed to by THERMO
pursuant to THERMO's then standard rates and charges, including travel
and accommodation.
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f. Suspensive Condition. In the event that (i)THERMO shall go into
liquidation, or seek the benefit of any bankruptcy or insolvency act,
or a receiver or trustee is appointed for the property or estate of
THERMO, or THERMO makes an assignment for the benefit of creditors, or
(ii)THERMO shall be unable to provide ASAHI with the Device and/or
Applicators within ninety (90) days of the originally promised shipment
date for the Device and/or Applicators, THERMO hereby grants ASAHI the
exclusive right and license under the Intellectual Property Right, with
the right to sublicenses, to manufacture, have manufacture, use,
market, distribute and sell the Device and Applicators within the
Territory for any purpose including, but not limited to, surgical
procedures and regeneration medical treatment. During the term of this
Agreement, THERMO may not grant to any third party a right or license
that conflicts with the right and license granted to ASAHI under this
Section 7(f) within the Territory. When THERMO re-establishes the
ability to supply the Devices and/or Applicators, ASAHI shall have
choice either (a) to continue to manufacture the Devices and/or
Applicators; or (b) purchase Device and/or Applicators from THERMO
under the terms and conditions of the Agreement; or elect to do both.
8. Grant of Non-Exclusive License and Manufacturing for TAD Stand Alone.
------------------------------------------------------------------------
▇. ▇▇▇▇▇ of Non-Exclusive License. THERMO will grant ASAHI the
non-exclusive right and license under the Intellectual Property Right,
with the right to sublicenses, (i) to use, market, distribute and sell
the TAD Stand Alone within the Territory, (ii) to manufacture and have
manufactured the TAD Stand Alone and any improvement and modification
thereof within the Territory, for any purpose including, but not
limited to, surgical procedures.
b. ASAHI agrees that it shall conform to the good manufacturing practice
and performance standards and other requirements of the MHLW that are
applicable to the manufacture and distribution of the TAD Stand Alone
in Japan. ASAHI will deliver to THERMO the following information and
corroborative data on their manufacturing and testing of the TAD Stand
Alone manufactured by ASAHI:
o Materials used in the TAD Stand Alone
o Biocompatibility testing that complies with Tripartite Guidance
o Labeling
o Intended Use
o Characterization of the thrombin
o Sterilization Data
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c. Sell Back of the TAD Stand Alone. ASAHI agrees, upon terms and other
standard conditions to be agreed upon by the parties, to sell the TAD
Stand Alone manufactured by ASAHI to THERMO at a price which is
equivalent to ASAHI's manufacturing cost and transportation and
insurance charges plus ^Removed pursuant to Rule 24b-2 under the
Securities Exchange Act of 1934^.
d. Technical Support. THERMO shall make available to ASAHI, all technical
and other information in its possession at any time during the term of
this Agreement relating to the manufacture of the TAD Stand Alone and
Thrombin Reagent, including specifications and quality control
information. THERMO shall, during the period from the date of ASAHI's
request to the date twelve (12) months thereafter, make available to
ASAHI the services of such personnel of THERMO as THERMO deems
necessary, or as reasonably requested by ASAHI, provided however, that
such time shall not exceed sixty (60) hours of time during any calendar
quarter and provided that ASAHI gives THERMO at least thirty (30) days
advance notice of the need for such time and provides THERMO with a
report of the work assistance needed. Thereafter, during the term of
this Agreement, in order to reasonably assist ASAHI in its efforts to
manufacture or have manufactured the TAD Stand Alone, THERMO shall
provide technical assistance as the parties may agree. All technical
support to be provided pursuant to this Section shall be at ASAHI's
expense at THERMO's then standard rates and charges, including living
and travel expenses from the U.S. to Japan, and back to the U.S., if
requested by ASAHI.
9. License fee and Running Royalty.
------------------------------------
a. ASAHI shall pay to THERMO a license fee of ^Removed pursuant to Rule
24b-2 under the Securities Exchange Act of 1934^ in consideration of
the license set forth in Sections 3 and 8(a) within thirty (30) days
after the date hereof.
b. ASAHI shall pay to THERMO the running royalty equal to ^Removed
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934^ of
the price billed by ASAHI or its sub-licensee to the customer of the
Products which are manufactured under Section 7(a), 7(f) or 8(a) and
sold by ASAHI or its sub-licensee in the Territory less (i)
transportation and insurance charges or allowances, if any included in
such price; (ii) discounts allowed, and commissions paid in lieu of
trade discounts in amounts customary in the trade, (iii) credits and
allowances, if any, given or made on account of the return or
rejection of such Product previously delivered or retroactive price
reductions and (iv) consumption taxes and any other tax if any.
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c. The running royalties under Section 9(b) shall be paid in US dollars
within thirty (30) days after the end of each calendar quarter with
respect to the Product which is subject to the running royalty under
Section 9(b) and sold during such calendar quarter together with a
written report setting forth the calculation of such running royalty.
THERMO shall have the right to audit any calculation of royalties, and
ASAHI agrees to provide access by THERMO to its books and records for
such purpose.
d. Any currency conversion is required in connection with the payment of
the running royalty, such conversion shall be made by using the
exchange rate quoted by Japanese prime bank designated by ASAHI on the
last date of each quarter to which the running royalty payment
relates.
e. Any tax levied under any Japanese Tax Laws that is required to be
deducted from any license fee and running royalty payable to THERMO
hereunder shall be paid by ASAHI for the account of THERMO. Any tax so
paid shall be deducted by ASAHI from the license fee and running
royalties payable to THERMO hereunder and ASAHI shall provide THERMO
with the original copy or a certified copy of the official Japanese
Government receipt for the tax so paid and deducted. If the exemption
or deduction of such withholding tax is available, ASAHI shall take
any and all required steps in order that THERMO can enjoy the benefit
of such exemption or deduction.
f. If either of the following events occurs, the running royalty rate
shall be reduced to ^Removed pursuant to Rule 24b-2 under the
Securities Exchange Act of 1934^, and if both of the following events
occur, ASAHI shall be released from the obligation to pay the running
royalty under Section 9(b).
(i) All patents of Licensed Patents in actual use by ASAHI or its
sub-licensee are expired or become invalid.
(ii) Know-how in actual use by ASAHI or its sub-licensee becomes a
part of public domain through no fault of ▇▇▇▇▇.
▇▇
▇▇. Trademark License. THERMO hereby grants to ASAHI the non-exclusive,
royalty-free right and license (with the right to sublicense for marketing and
manufacturing purposes only) to use all trademarks with respect to the Product
owned by THERMO in connection with the manufacturing, marketing, distribution,
sale and post-sale field service, technical assistance and support of its rights
hereunder in the Territory. ASAHI shall submit for pre-approval the uses of
THERMO's trademarks so that THERMO may insure the proper preservation of its
rights.
11. Option. THERMO grants to ASAHI a first right of refusal (the "Option") to
acquire the same rights as granted to ASAHI hereunder in one, or more of the
specified Asian Pacific Rim Countries, upon similar terms as provided in this
Agreement, subject to negotiation and execution of a definitive agreement. ASAHI
may exercise the Option with respect to any country of Asian Pacific Rim
Countries at any time during the term of this Agreement and if ASAHI exercises
the Option with a certain country of Asian Pacific Rim Countries, the parties
shall immediately start to negotiate in good faith and agree on the definitive
agreement under which ASAHI acquires the same rights as granted to ASAHI
hereunder in such country of Asian Pacific Rim Countries.
Notwithstanding the foregoing, if THERMO receives from any third party an offer
that such third party desires to obtain the same right as granted to ASAHI
hereunder in any county of the Asian Pacific Rim Countries for which ASAHI has
not exercised the Option yet, THERMO shall notify ASAHI thereof in writing. If
ASAHI elects not to exercise such Option with respect to the offered country
within sixty (60) days after the receipt of such notice from THERMO, such Option
for the offered country will lapse, and THERMO will be free to grant such rights
to any third party, upon such terms as THERMO deems appropriate in its sole
discretion.
12. Improvements.
------------------
a. It is understood that any invention, know-how and any other technical
information with respect to the Product and any intellectual property
rights thereunder obtained solely by either party shall be owned by
such party and those obtained jointly by the parties shall be owned by
THERMO.
b. During the term of this Agreement, if THERMO has modified or improved
Product (hereinafter individually or collectively referred to as
"Improved Product"), THERMO shall provide ASAHI with access to Improved
Product. If ASAHI informs THERMO of its intention to obtain regulatory
approval (if necessary) and promotion of the Improved Product, THERMO
shall supply ASAHI with such Improved Product for ASAHI's distribution
hereunder. Such Improved Product shall be added to Exhibit B.
15
c. During the term of this Agreement, if ASAHI develops Improved Product
and informs THERMO of its intension of obtaining regulatory approval
(if necessary) and promotion of such Improved Product and THERMO agrees
on ASAHI's request to supply such Improved Product, THERMO shall supply
ASAHI with such Improved Product for ASAHI's distribution hereunder.
Such Improved Product shall be added to Exhibit B.
13. Localization Duties of ASAHI. ASAHI shall provide and coordinate all
services necessary to cause the Product to be appropriately packaged and prepare
for sale and marketing throughout the Territory in accordance with the language
and customs of the Territory ("Localized"). Localization shall include, but not
be limited to, (i) the appropriate language translations for all materials
related to the Product (ii) the modification of the appearance of packaging
materials and (iii) any modifications necessary to comply with Japanese laws and
regulations. Without prejudice to the generality of the foregoing, ASAHI shall
provide the Localization services set forth in subparagraphs (a) and (b) below:
a. Product Specific Material. ASAHI shall prepare all modifications
necessary or appropriate to localize the following Product specific
material: (i) The outside packaging materials for the Product; (ii) all
instruction manuals for the Product; (iii) all start-up cards, warranty
and registration cards, and labels regarding the Product; and (iv) any
promotional material that may be included in promoting the Product from
time to time.
b. Preparation of Localized Materials. ASAHI shall be responsible for all
costs related to the translation and Localization of the materials
described above. ASAHI shall follow the direction of THERMO's in
coordinating the Localization process. ASAHI shall timely submit
mock-ups and proofs of all proposed Localization materials for approval
by THERMO. All original art work provided to THERMO by ASAHI shall be
on media of a type and format agreed upon by the parties and
accompanied by samples of the finished Product materials. ASAHI agrees
that all films and materials produced are and shall remain the
exclusive property of THERMO.
14. ASAHI Marketing Effort. ASAHI agrees to proceed with diligence and use its
reasonable efforts to commercialize and market the CryoSeal System in the
Territory in accordance with a comprehensive marketing plan which is established
by ASAHI, the initial version of which shall be delivered within sixty (60) days
after the date of reimbursement approval on the Processing Disposable,
16
Applicators and Thrombin Reagent by the MHLW and which may be modified by ASAHI
from time to time. Such marketing plan shall identify the market potential,
marketing strategies to be utilized, the targeted customers and timing to sell
them, and resources committed to the development of the Japanese market for the
CryoSeal System. ASAHI also agrees that it will:
a. Designate a domestic marketing manager, employed by ASAHI, who will
assume responsibility for commercialization of the CryoSeal System for
the implementation of the marketing plan therefor.
b. Prepare sales and technical literature and other information for
product promotion and surgeon use of the CryoSeal System in patient
applications. THERMO shall assist in assuring technical accuracy of all
such information. THERMO will provide, to the extent available,
accumulated materials relative to its products, competitor's products,
and plasma component technology in general.
15. Support and Cooperation by THERMO.
---------------------------------------
a. Advertising Materials. THERMO shall provide to ASAHI, in English,
sales, marketing and technical assistance and training and support for
the Product that THERMO deems appropriate to enable ASAHI to Localize
the Product, and for ASAHI to sell and provide Product maintenance.
THERMO shall provide ASAHI with a reasonable amount of sales
literature, advertising materials and other materials in English, as
prepared by THERMO and as may be necessary or appropriate to allow
ASAHI to complete Localization and promote and enhance the sales of the
Product.
b. Parts, Supply and Support. THERMO shall use its best efforts to
maintain sufficient inventory of parts and supplies for repair and
maintenance of Device and Applicators as requested by ASAHI for a
period of ten (10) years following termination of this Agreement;
provided, however, that ASAHI shall pay THERMO ^Removed pursuant to
Rule 24b-2 under the Securities Exchange Act of 1934^ of actual
inventory cost for all such parts and supplies stocked following
termination, unless ASAHI waives this requirement of parts inventory at
the time of termination.
17
c. Evaluation Units. Upon the request of a hospital or prospective
end-user for the Processing Disposable, Thrombin Reagent, Applicators
and TAD Stand Alone or possible sub-distributor or sub-licensee for an
evaluation unit of a Processing Disposable, Thrombin Reagent,
Applicators and TAD Stand Alone, ASAHI promptly shall notify THERMO's
sales department of such request in order to allow THERMO to consider
the request and, if approved by THERMO, to deliver the evaluation unit
on a timely basis. ASAHI shall pay the actual cost for such evaluation
unit, based on THERMO's manufacturing cost only, without ▇▇▇▇-up or
profit.
d. Quality Audit. THERMO shall keep a record which will certify that the
Product to be supplied to ASAHI by THERMO was manufactured in
accordance with specifications and applicable laws and regulation and
any other data and material with respect to the safety and quality of
the Product to be supplied to ASAHI by THERMO. THERMO shall permit
ASAHI or its designee access in accordance with the schedule agreed by
the parties to those areas of THERMO's manufacturing facilities where
the Product is manufactured, stored and handled and to manufacturing
records of the Product supplied to ASAHI by THERMO to the extent
necessary for ASAHI to obtain and maintain the regulatory approval with
respect to the Product in the Territory or for the quality
investigation conducted by regulatory authority.
16. Prosecution and Maintenance of Licensed Patents.
-----------------------------------------------------
a. To the extent it has not done so, THERMO, through its own patent
attorney, shall cause to be filed and prosecuted the existing Patent
Applications and all future patent applications which lend protection
to the Product in the Territory. THERMO agrees to exercise all
reasonable efforts to cause such applications to be prosecuted and all
Licensed Patents issued in respect thereof to be maintained in such
manner that the best possible patent protection may be obtained
thereon, provided that (i) THERMO shall, in advance, consult ASAHI on
the step for the filing, prosecution and/or maintenance of any Patent
Application or Licensed Patent in the relevant patent office in the
Territory and take such steps fully considering ASAHI's opinion, and
(ii) THERMO shall keep ASAHI promptly and fully informed of the course
of the filing, prosecution and/or maintenance of any Patent Application
or Licensed Patent in the Territory by providing ASAHI with copies of
communications between THERMO and the relevant patent office in the
Territory. In the event that THERMO fails to take action in the
Territory pursuant to ASAHI's reasonable request, ASAHI may, on behalf
and in the name of THERMO through patent attorneys designated by it,
cause to be filed and/or prosecute Patent Applications, and cause to be
maintained all Licensed Patents, in the Territory, in which case the
reasonable out-of-pocket expenses and cost including attorney's fee
incurred by ASAHI in connection with the filing, prosecution and/or
maintenance of any Patent Application or Licensed Patent in the
Territory may be creditable against any payment for the Product
supplied by THERMO and the license fee and royalty payments under
Section 9.
18
b. The Grant of Exclusive License on the Licensed Patents. Whenever the
Licensed Patents are issued in Japan, ASAHI shall, in the name of
THERMO but at ASAHI's own cost and expense, have the right to have the
grant of the Exclusive License set forth in the article 77 of Japanese
Patent Law on the all Licensed Patents to the full extent of their
claims registered with the Japanese Patent Office and THERMO shall
cooperate with ASAHI to register the grant of the Exclusive License on
the Licensed Patents. In this Agreement, the Exclusive License means
"SENYO JISSIKEN" set forth in the article 77 of the Japanese Patent
Law, the grant, transfer (except those by inheritance or other general
succession), modification or extinguishment (except those resulting
from a merger or the extinguishment of the patent right) of which, or a
restriction on the disposal thereof shall be of no effect unless they
are registered provided, however, that ASAHI shall not assert the right
under such registered Exclusive License with respect to the patents
related to the TAD Stand Alone against the use, manufacture, sale or
otherwise dispose of the TAD Stand Alone by THERMO or its distributor
or licensee within the Territory. ASAHI will, at its cost, take the
necessary procedures to cancel the registration upon termination of
this Agreement.
17. Patent Indemnification. THERMO agrees to defend any and all actions and
suits alleging that the Product embodying the Intellectual Property Rights
infringe any patent of any third party issued or published to any third party
prior to the date of this Agreement that may at any time be brought against
ASAHI or its sub-distributors or sub-licensees or any of its or their customers
and to pay all costs and expenses incurred and to satisfy all judgments and
decrees against the defendant or defendants in such actions or suits and to hold
ASAHI and its sub-distributors or sub-licensees and its and their customers
harmless from all loss, damage, expense and liability on account of any such
infringement; provided that THERMO shall have prompt notice of the commencement
of any such action or suit and full opportunity to defend the same. ASAHI or its
sub-distributors or sub-licensees or its or their customers, as the case may be,
shall be entitled at their expense to participate in the defense of any such
action or suit through counsel selected by them.
19
18. Infringement of Licensed Patents. In the event that either party shall
become aware that any Licensed Patent is being infringed by a third party within
the Territory, such party shall notify the other of the facts in respect
thereof. ASAHI shall have the first right to enforce the Licensed Patents
against such infringer in the name of ASAHI, in the name of THERMO or in both
their names. THERMO shall cooperate with ASAHI as reasonably requested by ASAHI
in taking any such actions against such infringer and ASAHI and THERMO shall be
entitled to all amounts recovered as a result or consequence of such actions,
proportionate with their respective actual costs and damages. If ASAHI does not
take such action within ninety (90) days after the receipt of written notice
from THERMO requiring ASAHI to take such action, THERMO shall be entitled to
enforce the Licensed Patents against such infringer at its own cost and shall be
entitled to all amounts recovered as a result or consequence of such actions.
19. Indemnification.
---------------------
a. THERMO's Indemnity. THERMO agrees to indemnify, defend and hold
harmless ASAHI from and against any claims, losses, damages,
liabilities, causes of action, suits, costs and expenses, including all
reasonable attorneys' fees and disbursements of counsel and expenses of
investigation, incurred by ASAHI arising out of or relating to:
(1) any breach by THERMO of its representations, warranties, covenants
and agreements under this Agreement; and
(2) any third party claims, actions, suits or proceedings for personal
injury or death, or any damage to any property, caused by any
defect in any Product; and
(3) any claim, action, suit or proceeding brought against ASAHI,
alleging that the marketing, distribution, use or sale of any
Products infringes or violates any trademark, distribution or
other proprietary rights of any third party.
b. ASAHI's Indemnity. ASAHI agrees to indemnify, defend and hold harmless
THERMO from and against any claims, losses, damages, liabilities,
causes of action, suits, costs and expenses, including all reasonable
attorneys' fees and disbursements of counsel and expenses of
investigation, incurred by THERMO arising out of or relating to:
20
(1) any breach by ASAHI of its representations, warranties, covenants
and agreements under this Agreement; and
(2) the performance by ASAHI or any Sub-distributors of their
obligations under this Agreement.
c. Notice of Indemnifiable Event. Promptly after receipt by any
indemnified party under this Section 19 of the commencement of any
action or threat of action, such indemnified party shall, if a claim
with respect to such action or threat of action is to be made against
an indemnifying party under this Section 19, notify the indemnifying
party of the action or claim. Upon the receipt of such notice, the
indemnifying party shall assume the defense of the action or claim,
including employment of counsel and payment of expenses; provided,
however, that the indemnifying party shall not be liable for the
settlement or compromise of any claim or action if it has not first
consented to such settlement or compromise. The indemnified party may,
at its election and cost, join in the defense of such action.
Notwithstanding the foregoing, if both parties are named as defendants
in any action actually commenced or immediately threatened, the parties
shall cooperate in coordination of any defense, including selection of
counsel, and all costs of counsel shall be paid jointly until such time
as a finding of contribution or attribution of fault, if any, is made.
d. Product Liability Insurance. THERMO shall be responsible for
maintaining product liability insurance in the amount of two million US
dollars ($2 million). Upon ASAHI's written request, THERMO shall
provide to each other a specimen copy of all such insurance maintained
in connection with the manufacture, marketing, distribution and use of
the Product and any component part thereof.
e. Recalls. In the event that one party knows or has reason to know of
problems with the Product supplied to ASAHI by THERMO which may require
ASAHI or THERMO to recall such product from the market for any reason,
such party shall notify the other party immediately and prior to
effecting any such recall, except as may be mandated by any
governmental or regulatory order. The parties shall cooperate and work
together to effect any required recall to minimize damage, including
adverse publicity. The parties shall cooperate, at their own expense,
in effecting any such recall, subject to credit for return and
defective products as provided for in this Agreement, and shall agree
to adjust or share such costs after the recall is completed or submit
the matter to arbitration as provided for in Section 33 of this
Agreement.
21
20. Term and Termination.
--------------------------
a. This Agreement shall become effective on the date first above written
and, unless earlier terminated under Section 20(b), 20(c), 20(d) and
20(e) shall remain in full force and effect for a period of five (5)
years from the effective date of this Agreement and shall be
automatically extended for one (1) year and thereafter from year to
year unless ASAHI sends to THERMO a written notice for non-renewal not
later than ninety (90) days prior to the expiration of the initial
term or any extended term.
b. Each party ("Non-breaching Party") shall have the right to terminate
this Agreement in the event that the other party ("Breaching Party")
fails to fulfill its obligations hereunder and such failure is not
remedied within ninety (90) days after Breaching Party's receipt of
written notice from Non-Breaching Party.
c. In the event that ASAHI makes an assignment for the benefit of
creditors, and whether any of the aforesaid events be the outcome of
the voluntary act of ASAHI or otherwise, this Agreement and the
license and rights granted hereby thereby automatically terminate.
d. In the event that THERMO makes an assignment for the benefit of
creditors, and whether any of the aforesaid events be the outcome of
the voluntary act of THERMO or otherwise, Asahi shall have the right
to terminate this Agreement immediately upon written notice to THERMO.
e. THERMO shall have the right to terminate this Agreement upon the
expiration of thirty (30) days period after the end of each Year in
the event that ASAHI's purchase quantity of the products listed in
Exhibit C of any such Year falls below the purchase minimums for any
such Year.
f. The termination of this Agreement for any reason shall be without
prejudice to THERMO's right to receive all payments accrued and unpaid
hereunder at the effective date of such termination as to periods
prior to termination and to the remedy of either party hereto in
respect of any previous breach of any of the covenants herein
contained.
22
g. Upon termination of this Agreement, ASAHI shall have no right to
manufacture or have manufactured and market the Product except that
ASAHI may dispose of inventory on hand. The termination of this
Agreement for any reason shall not, however, terminate or affect any
sublicense granted by ASAHI pursuant to the provisions of Section 7(a)
and 8(a) hereof in the territory (except to the extent any such
sublicense shall have been granted on terms providing for its
termination with any termination of ASAHI's rights hereunder) and
ASAHI shall, upon termination of this Agreement, assign to THERMO all
of ASAHI's rights and obligations in and under such sublicenses and
THERMO shall assume the same.
21. Effect of Termination. Upon termination of this Agreement for any reason,
the parties understand and agree to the following:
a. ASAHI shall immediately discontinue all activities relating to the
Product and the Licensed Patents, including all activities pertaining
to sublicenses granted by ASAHI under this Agreement.
b. The provisions of Sections 6, 17, 18 and 19 shall survive any such
termination.
c. All monies owed by ASAHI to THERMO shall become immediately due and
payable notwithstanding any credit terms that may previously have been
made available, and ASAHI's obligation to make such payments shall
survive the termination of this Agreement.
d. The Previous Agreements shall be terminated upon the execution of this
Agreement.
22. Non-Circumvention of Rights. ASAHI acknowledges THERMO's proprietary
ownership in the Product, Licensed Patents, Intellectual Property Rights, and
Know How, and represents and warrants that it will not take any action that will
circumvent such ownership, or lessen the worth of such ownership. ASAHI further
represents, warrants, and agrees that it shall not take any action, directly or
indirectly, which would challenge the validity of the Licensed Patents or
THERMO's ownership therein.
23. Title, Proprietary Rights, Trade Secrets and Copyrights. The Licensed
Patents and Know How, including any copyright, patent, and other intellectual
rights therein, are and shall at all times remain the property of THERMO.
23
24. Certain Taxes. The parties acknowledge that the purchase prices of the
Product set forth in Exhibit B do not include any sales, excise, use, value
added or other government taxes or duties that may be applicable to the export,
import or purchase of the Products, and ASAHI agrees that it will bear all such
taxes and duties. Notwithstanding anything to the contrary, each party shall be
solely liable for all income and income-based taxes imposed on such party under
applicable law, which taxes shall be the sole responsibility of such party.
25. Unforeseen Occurrences. Neither party to this Agreement shall be liable for
any delay or failure of performance that is the result of any happening or event
that could not reasonably have been avoided or that is otherwise beyond its
control. Such happenings or events shall include, but not be limited to: fire,
flood, explosion, action of the elements, inability to obtain or shortage of
material, equipment or transportation, governmental orders, regulations,
restrictions, priorities or rationing, acts of God, accidents and strikes,
lockouts or other labor trouble or shortage.
26. Confidentiality. During the term of this Agreement and for a period of five
(5) years thereafter or for ten (10) years after the effective date hereof,
whichever is longer, each party agrees that the technology constituting any
confidential information of the other party, including the Intellectual Property
Rights that comes into its possession as a result of this Agreement or the
Previous Agreements about the business of the other that is not generally
available to the public shall be kept confidential except to the extent
necessary for the commercialization of the Product. Public disclosure of the
existence of this Agreement shall be determined by the legal disclosure
requirements of the securities laws governing either THERMO or ▇▇▇▇▇.
▇▇. Notices. Unless otherwise provided herein, all notices and consents
hereunder shall be in writing and shall be deemed to have been properly given
and to be effective on the date of delivery if delivered in person, by one-day
courier service or by facsimile transmission (provided a copy is sent by one-day
courier service) to the respective address of facsimile number provided below or
to such other address or facsimile number as either party shall designate by
written notice to the other in such manner:
If to ASAHI: If to THERMO:
Mr. Naokuni Yamawaki ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Asahi Kasei Medical Co., Ltd. THERMOGENESIS CORP.
9-1, Kanda Mitoshirocho ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇-▇▇, ▇▇▇▇▇, ▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: ▇-▇▇▇▇-▇▇▇▇ Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: ▇-▇▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
24
28. Successors and Assigns. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assignees;
provided, however, that neither of the parties hereto may assign or transfer its
rights or obligations hereunder without the prior written consent of the other
party hereto.
29. Entire Agreement. This Agreement supersedes all prior agreements,
understandings, representations, and statements, if any, regarding the subject
matter contained herein, whether oral or written (with the exception of the
confidential disclosure agreement sighed by ASAHI and THERMO on April 17, 1996
and Escrow Agreement) and no amendment of this Agreement shall be valid and
binding upon the parties unless made in writing and signed on behalf of each of
such parties by their respective authorized officers.
30. Governing Law. This Agreement shall be construed and interpreted in
accordance with the laws of the State of California, without regard to conflicts
of laws principles.
31. Severability of Provisions. If any provision or provisions of this Agreement
shall be held to be illegal, invalid or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
32. Waiver of Default. The waiver of any default under this Agreement by either
party shall not constitute a waiver of any rights for any subsequent default.
33. Forum and Jurisdiction of Disputes. In the event of any dispute arising in
connection with this Agreement, the parties will endeavor to negotiate a
mutually satisfactory solution. If such solution cannot be reached, the dispute
shall, at either party's advance written demand, be finally settled by
arbitration in accordance with the rules of Conciliation and Arbitration of the
International Chamber of Commerce. THERMO and ASAHI shall each appoint one
arbitrator and these two arbitrators shall appoint the third. If the two
arbitrators cannot agree on the third arbitrator, he shall then be appointed in
accordance with such Rules. The arbitration shall take place i) in Sacramento,
California, if the arbitration is demanded by ASAHI; or ii) in Tokyo, Japan, if
the arbitration is demanded by THERMO. The arbitration shall be held in the
English language.
25
34. Publicity. Except as may be contemplated hereunder, neither party may issue
any press release or make any public announcement concerning the transactions
contemplated by this Agreement without the prior written consent of the other
party, except for any releases or announcements which may be required by, or in
such party's discretion, reasonably necessary under applicable law, in which
case the party proposing to make such release or announcement will allow the
other party a reasonable opportunity to review and comment on such release or
announcement in advance of such issuance or making. In addition, THERMO agrees
that it will request under the United States securities laws, including Rule
24b-2 promulgated under the Securities Exchange Act of 1934, as amended, and use
its reasonable best efforts to seek, confidential treatment of certain
information contained in this Agreement.
26
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first above written.
ASAHI THERMO
By: ---------------------------- By:----------------------------
Title: -------------------------- Title:-------------------------
27
