EXHIBIT 10.93
SUBLICENSE AGREEMENT
OF THE
PUBLIC HEALTH SERVICE BIOLOGICAL MATERIALS LICENSE
This SUBLICENSE AGREEMENT OF THE PUBLIC HEALTH SERVICE BIOLOGICAL MATERIALS
LICENSE ("Agreement"), dated as of August 31, 2001 ("Effective Date") is entered
--------- --------------
into by and between ▇▇▇▇▇▇ Healthcare Corporation, a Delaware corporation having
its principal place of business at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
("Baxter"), and Nexell of California, Inc., a Delaware corporation having its
------
principal place of business at Nine Parker, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Nexell").
------
RECITALS
WHEREAS, Nexell has certain rights to the Licensed Intellectual Property
(as hereafter defined) under a certain Public Health Service Biological
Materials License Agreement, dated as of December 5, 1995 (the "License
-------
Agreement"), annexed as Exhibit A hereto, between the Public Health Service,
---------
through the Office of Technology Transfer, National Institutes of Health
("Licensor") and CellPro, Incorporated.
--------
WHEREAS, Nexell desires to sublicense to Baxter certain rights under the
License Agreement in order to enable Baxter to perform its sale, marketing and
distribution obligations under that certain Distribution and License Agreement
by and between Nexell and Baxter dated as of August 31, 2001 (the "Distribution
------------
and License Agreement").
---------------------
AGREEMENT
NOW THEREFORE, for good and valuable consideration, including the promises
contained herein, the parties do hereby agree to be bound as follows:
1. Definitions
1.1 Terms Defined in the License Agreement. Capitalized terms not
--------------------------------------
otherwise defined herein shall have the meanings given them in the
License Agreement.
1.2 As used herein, the following terms shall have the specified meaning:
(a) "Cell Lines" shall mean the cell lines specified in Schedule
---------- --------
1.2(a).
------
(b) "Licensed Intellectual Property" shall mean the intellectual
------------------------------
property defined in the License Agreement under Sections 1(a)
and 1(b).
(c) "Non-Compete Agreement" shall mean the Non-Competition and
---------------------
Confidentiality Agreement, by and among Baxter, Nexell, and
VIMRx Pharmaceuticals Inc., dated as of December 18, 1997, as
amended.
(d) "Products" shall have the meaning ascribed to it in the
--------
Distribution and License Agreement.
(e) "Product Categories" shall have the meaning ascribed to it in
------------------
the Distribution and License Agreement.
(f) "Supply Agreement" shall mean the Supply Agreement by and
----------------
between Baxter and Nexell dated as of August 31, 2001.
2. Payment.
Baxter agrees to pay, perform, discharge or otherwise satisfy, or cause to
be paid, performed, discharged or otherwise satisfied the obligations under the
License Agreement arising on or after the date hereof with respect to any
Products sold by Baxter by transmitting any and all payments and reports
directly to Licensor, with simultaneous written notice thereof to Nexell.
3. License Grant by Nexell to Baxter
3.1 License. Nexell hereby grants to Baxter: (i) an exclusive (even as
-------
to Nexell), worldwide license under the Licensed Intellectual
Property to market and sell the Products, and any components thereof;
(ii) an exclusive (except as to Nexell), worldwide license under the
Licensed Intellectual Property to make, have made and import the
Products, and any components thereof; (iii) an exclusive (even as to
Nexell) worldwide license under the Licensed Intellectual Property to
use the Products and components solely for the distribution purpose
set forth in Section 5 of the Distribution and License Agreement; and
(iv) an exclusive (except as to Nexell), worldwide license under the
Licensed Intellectual Property for internal research and development
purposes (including clinical trials) to improve Products for Ex Vivo
Cell Processing (as such term is defined in the Non-Compete
Agreement) (the "License"). The foregoing license rights shall not
-------
include the right for Baxter to use the Licensed Intellectual
Property to practice Ex Vivo Cell Processing commercially. Either
party shall have the right to sublicense its rights described in this
Section 3.1, provided such party has obtained the other party's prior
written consent (such consent not to be unreasonably withheld or
delayed) and any such sublicensee agrees to be bound by the terms and
conditions of this Agreement and the Non-Compete Agreement (the terms
of which shall be binding upon any sublicensee in the same manner and
to the same extent such terms bind the applicable licensor).
3.2 Maintenance of Cell Lines. Baxter shall at all times endeavor
-------------------------
to keep the Cell Lines secure and safe from loss and damage in such a
manner as Baxter shall determine in accordance with ▇▇▇▇▇▇'▇ Standard
Operating Procedures System (as such term is defined in the Supply
Agreement) and consistent with ▇▇▇▇▇▇'▇ efforts to protect its own
cell lines. Upon transferring any portion of a master or working cell
bank to Nexell, or to Nexell's designee, at Nexell's request, Baxter
shall conduct viability testing prior to shipment of such master or
working cell bank and shall retain reports of such testing for
Nexell's inspection. Nexell shall assume full responsibility for
shipping such master or working cell banks and all such shipments
shall be FOB the facilities where such master or working cell banks
are kept by Baxter. Notwithstanding anything to the contrary set
forth in
this Section 3.2, Baxter shall have no obligation to maintain any Cell
Line, at its expense, if Baxter elects, in its sole discretion, to
cease selling such Cell Line. In such an event, Baxter shall notify
Nexell and Nexell shall inform Baxter as to how Baxter should dispose
of any such Cell Line.
4. Notification of Payments and Reports
Each party shall notify the other party of any payment, royalty payment,
FDA marketing approval and first commercial sale in each country where such sale
is made and shall provide the other party with copies of any payment or report
transmitted to Licensor concurrent with the transmittal of same to Licensor.
5. Nexell's Rights to Avoid Termination of License Agreement; Termination;
Non-Modification; Exclusivity
5.1 Baxter shall provide Nexell with written notice within three (3)
business days of the occurrence of any of the following:
(a) Failure to meet its royalty payment obligations under the License
Agreement;
(b) ▇▇▇▇▇▇'▇ material breach of any other obligation under the
License Agreement;
(c) Receipt of any notification or other communication relating or
otherwise referring to ▇▇▇▇▇▇'▇ alleged breach of its
responsibilities under the License Agreement or threatening
termination of the License Agreement.
5.2 After receipt of notice under Section 5.1 above, or, in the event that
Nexell, in good faith, after consultation with Baxter, reasonably
believes that the License Agreement will be terminated absent action
by Nexell, Nexell may, at its option, take such actions it considers
to be reasonably necessary in order to avoid such termination. To the
extent Nexell advances payments on ▇▇▇▇▇▇'▇ behalf, such payment shall
be considered a loan to Baxter. Interest on the amount advanced shall
accrue and be payable from the date advanced at a rate of 1% per month
(or the highest rate allowed by law, if lower) compounded annually,
until fully paid (including full payment of such interest).
5.3 Final Notice to Cure. In the event Nexell exercises its rights under
--------------------
Section 5.2 above, Nexell shall be entitled to terminate this
Agreement, provided, Nexell serves Baxter with thirty (30) days prior
notice of its intention to terminate, and gives Baxter the opportunity
to cure the breach which necessitated Nexell's action under Section
5.2 above, including the payment of any fees, plus interest, due and
owing to Nexell, and/or a reimbursement of Nexell's costs and expenses
incurred by Nexell in exercising its rights under Section 5.2 above.
5.4 Early Termination. Nexell may terminate this Agreement if a final,
-----------------
non-appealable decision is rendered by an arbitrator or a court of
competent
jurisdiction holding that Baxter has materially breached its
obligations under Section 2 of the Non-Compete Agreement after having
been given at least 180 days notice of such breach by Nexell. In
addition, upon the termination of the Distribution and License
Agreement in accordance with its terms, this Agreement shall
automatically terminate.
5.5 Termination for Baxter Bankruptcy. This Agreement and the license
---------------------------------
granted hereunder shall automatically terminate, without further
action of any kind by Nexell, upon bankruptcy, insolvency, assignment
for the benefit of creditors or other act of insolvency by, or against
Baxter.
5.6 Non-Modification. Except as expressly permitted herein, neither party
----------------
shall take any action to amend, extend, terminate or otherwise modify
the terms and conditions of, or the rights and obligations of the
parties to, the License Agreement without the prior written consent of
the other party.
5.7 Exclusivity. To the extent that Baxter becomes a non-exclusive
-----------
marketing, sales and distribution entity with regard to any Products
Category(ies) in specified countries under the Distribution and
License Agreement, Baxter shall similarly convert into a non-exclusive
marketing, sales and distribution entity for the same Product
Category(ies) in the same countries pursuant to this Agreement.
6. Enforcement of Licensed Intellectual Property Rights. Baxter and Nexell
shall each, promptly, but in no event no later than thirty (30) days after
receipt of notice thereof, notify the other of any patent nullity actions,
oppositions, reexaminations, any declaratory judgment actions or any
alleged or threatened infringement of patents or patent applications or
misappropriation or violation of any Licensed Intellectual Property, or if
Baxter or Nexell, or any of their respective Affiliates, shall be named as
a defendant in a legal proceeding by a third party alleging infringement,
misappropriation or violation of a patent or other intellectual property
right as a result of the manufacture, production, use, distribution or sale
of any Product or of any other information or notification regarding the
Licensed Intellectual Property.
6.1 Baxter and Nexell shall cooperate in any action taken by a third party
solely involving a nullity action, opposition, reexamination or any
other action taken by such third party alleging the invalidity or
unenforceability of any Licensed Intellectual Property. Both parties
agree to share equally in the cost of the defense of such Licensed
Intellectual Property.
6.2 Baxter shall have the first right to respond to, defend or prosecute
any actions taken to defend any alleged or threatened infringement,
misappropriation or any other violation by a third party of ▇▇▇▇▇▇'▇
rights under the license granted in Section 3.1 of this Agreement. It
is understood that such action may include defending against a nullity
action or similar action or causes of action taken by such third party
in such proceedings or actions. Nexell agrees to cooperate with Baxter
and its legal counsel, join in suits or actions that may be brought by
Baxter, at ▇▇▇▇▇▇'▇ request, allow itself to be named as a party, at
▇▇▇▇▇▇'▇
request, and be available at ▇▇▇▇▇▇'▇ reasonable request to be an
expert witness or otherwise to assist in such proceedings. If Baxter
elects to respond to, defend, prosecute or settle any such actions,
challenges, infringements, misappropriations or proceedings by a third
party alleging infringement, misappropriation or violation of ▇▇▇▇▇▇'▇
rights as described above then: (i) Baxter shall bear all legal fees
and other costs and expenses associated with such response or defense,
including those incurred by Nexell at ▇▇▇▇▇▇'▇ request; and (ii)
Baxter shall keep all amounts recovered from third parties in
connection with such response or defense. Furthermore, Baxter shall
have the right to license such Licensed Intellectual Property in
connection with any settlement of any such claim, with the prior
written consent of Nexell (such consent not to be unreasonably
withheld or delayed). Baxter shall have six (6) months to elect to
respond to, defend or prosecute any such allegations of infringement,
misappropriation or violation of rights. If Baxter declines to respond
to, defend or prosecute any such action within such six (6) month
period, then Nexell shall have the right to elect to bring any
necessary action to defend or prosecute any such allegations of
infringement, misappropriation or violation of rights. Notwithstanding
anything to the contrary set forth in this Section 6.2, it is
understood that nothing contained in this Section 6.2 shall limit,
impose any additional obligation on or otherwise alter Nexell's
obligation to indemnify Baxter under the Distribution and License
Agreement or this Agreement.
6.3 For any such actions against a third party alleging any infringement,
misappropriation or violation of rights that are not included under
the rights granted to Baxter under the license granted in Section 3.1
of this Agreement, Nexell shall have six (6) months to elect to
respond to, defend or prosecute any such allegations of infringement,
misappropriation or violation of rights. If Nexell declines to make
any such election within such six (6) month period, then Nexell hereby
grants Baxter automatically the exclusive right to elect to bring any
necessary action to defend or prosecute any such allegations of
infringement, misappropriation or violation of rights. If Baxter
elects to do so, then Nexell's license grant to Baxter under the
license granted in Section 3.1 of this Agreement shall be deemed to be
amended to include an exclusive license to take whatever actions are
necessary for Baxter (and solely for the purpose of the foregoing) to
respond to, defend or prosecute any such actions to enforce such
rights, including the right to seek past damages. In connection
therewith, Nexell agrees to cooperate with Baxter and its legal
counsel, join in suits or actions that may be brought by Baxter, at
▇▇▇▇▇▇'▇ request, allow itself to be named as a party, at ▇▇▇▇▇▇'▇
request, and be available at ▇▇▇▇▇▇'▇ reasonable request to be an
expert witness or otherwise to assist in such proceedings. Baxter
shall bear all legal fees and other costs and expenses associated with
such response or defense, including those incurred by Nexell at
▇▇▇▇▇▇'▇ request, and Baxter shall keep all amounts recovered from
third parties in connection with such response or defense.
Furthermore, Baxter shall have the right to license such Licensed
Intellectual Property in connection with any settlement of any such
claim, with the prior written consent of Nexell (such consent not to
be unreasonably withheld or delayed). Notwithstanding anything to the
contrary set forth in this Section 6.3, it
is understood that nothing contained in this Section 6.3 shall limit,
impose any additional obligation on or otherwise alter Nexell's
obligation to indemnify Baxter under the Distribution and License
Agreement or this Agreement.
7. Indemnification
7.1 Indemnification by Nexell. Nexell shall defend, indemnify and hold
-------------------------
Baxter and its Affiliates harmless from and against any and all
claims, suits and expenses, including reasonable attorney expenses,
arising out of or relating to (i) Nexell's breach of this Agreement;
and (ii) Nexell's breach of the License Agreement.
7.2 Indemnification by ▇▇▇▇▇▇. ▇▇▇▇▇▇ shall defend, indemnify and hold
-------------------------
Nexell and its Affiliates harmless from and against any and all
claims, suits and expenses, including reasonable attorney expenses,
arising out of or relating to (i) ▇▇▇▇▇▇'▇ breach of this Agreement;
and (ii) any claim for property damage, personal injury or death
arising out of the manufacture, use, sale or other disposition of any
products that use the Licensed Intellectual Property by Baxter, its
Affiliates or sublicensees; provided, however, that in the event that
-------- -------
any product is a Product, the indemnification provisions in the
Distribution and License Agreement shall exclusively govern any claim.
8. Dispute Resolution
8.1 Provisional Remedies. The procedures specified in this Section 8 shall
--------------------
be the sole and exclusive procedures for the resolution of disputes
between the parties arising out of or relating to this Agreement;
provided, however, that a party, without prejudice to these
-------- -------
procedures, may seek a preliminary injunction or other provisional
relief if, in its sole judgment, such action is deemed necessary to
avoid irreparable damage or to preserve the status quo. During such
action, the parties will continue to participate in good faith in the
procedures specified in this Section 8.
8.2 Negotiations Between Executives. The parties will attempt in good
-------------------------------
faith to resolve any claim or controversy arising out of or relating
to the execution, interpretation or performance of this Agreement
(including the validity, scope and enforceability of the provisions
contained in this Section 8) promptly by negotiations between
executives who have authority to settle the controversy and who are at
a higher level of management than the persons with direct
responsibility for the administration of this Agreement.
8.3 Arbitration. In the event that any dispute arising out of or relating
-----------
to this Agreement or its breach, termination or validity has not been
resolved after good faith negotiation pursuant to the procedures of
Section 8.2, such dispute shall upon written notice by either party to
the other, be finally settled by arbitration administered by the
Center for Public Resources in accordance with the provisions of its
Commercial Arbitration Rules and the United Stated Federal Arbitration
Act, as modified below:
(a) The arbitration shall be heard by a panel of three (3)
independent and impartial arbitrators, all of whom shall be
selected from a list of neutral arbitrators supplied by the
Center for Public Resources. From such list, each of Baxter and
Nexell shall select one (1) arbitrator, and the arbitrators so
selected shall select a third. The panel shall designate one (1)
among them to serve as chair.
(b) The arbitration proceedings shall be conducted in Los Angeles
County or Orange County in the State of California.
(c) Any party may seek interim or provisional remedies under the
Federal Rules of Civil Procedure and the United States Federal
Arbitration Act as necessary to protect the rights or property of
the party pending the decision of the arbitrators.
(d) The parties shall allow and participate in limited discovery for
the production of documents and taking of depositions, which
shall be conducted in accordance with the Commercial Arbitration
Rules of the Center for Public Resources. All discovery shall be
completed within sixty (60) days following the filing of the
answer or other responsive pleading. Unresolved discovery
disputes shall be brought to the attention of the chair of the
arbitration panel and may be disposed of by the chair.
(e) Each party shall have up to fifty (50) hours to present evidence
and argument in a hearing before the panel of arbitrators,
provided that the chair of the panel of arbitrators may establish
such longer times for presentations as the chair deems
appropriate.
(f) The arbitration award shall be rendered by the arbitrators within
fifteen (15) business days after conclusion of the hearing of the
matter, shall be in writing and shall specify the factual and
legal basis for the award. Judgment thereon may be entered in any
court having jurisdiction thereof.
(g) The arbitrators are empowered to order money damages in
compensation for a party's actual damages, specific performance
or other appropriate relief to cure a breach; provided, however,
-------- -------
that the arbitrators will have no authority to award special,
punitive or exemplary damages, or other money damages that are
not measured by the prevailing party's actual damages.
8.4 Performance During Dispute. Each party is required to continue to
--------------------------
perform its obligations under this Agreement pending final resolution
of any dispute arising out of or relating to this Agreement, unless to
do so would be commercially impossible or impractical under the
circumstances.
9. General
9.1 Provisions Contrary to Law/Severability. In performing this Agreement,
---------------------------------------
the parties hereto shall comply with all applicable laws. Nothing in
this Agreement shall be construed so as to require the violation of
any law, and wherever there is a conflict between any provision of
this Agreement and any applicable law, the applicable law shall
prevail. In the event any provision of this Agreement conflicts with
any applicable law or is otherwise determined by an arbitrator or
court having valid jurisdiction thereof to be unenforceable, the
affected provision of this Agreement shall be deemed to have been
modified to the extent necessary so as not to conflict with the
applicable law or to be unenforceable or, if such modification is not
possible, such provision shall be deemed to have been deleted
herefrom, without affecting, impairing or invalidating the remaining
provisions of this Agreement.
9.2 Foreign Government Approval or Registration. If this Agreement or any
-------------------------------------------
associated transaction is required by the law of any nation to be
either approved or registered with any governmental authority, or any
agency or political subdivision thereof, Baxter shall assume all legal
obligations to do so. In connection therewith, Nexell shall cooperate
and assist with all reasonable requests by Baxter.
9.3 Export Control. Each party shall observe all applicable United States
--------------
and foreign laws with respect to the transfer of Products and related
technical data to foreign nations, countries and other sovereign
states.
9.4 Notices. All notices required under this Agreement shall be in
-------
writing, and all such notices and other written communications
(including product orders and invoices) shall be delivered either by
hand, by a nationally recognized overnight delivery service (with
delivery charges prepaid), by first class, registered or certified
United States mail (postage prepaid), or by facsimile transmission
(provided that in the case of facsimile transmission, a confirmation
copy of the notice shall be delivered by hand, by a nationally
recognized overnight delivery service (with charges prepaid), or by
first class, registered or certified United States mail (postage
prepaid) within two (2) days of facsimile transmission), addressed to
each party as follows:
If to Baxter, such notices and any other written communications shall
be delivered to:
▇▇▇▇▇▇ Healthcare Corporation
Oncology
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇ - General Manager
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With copies to:
▇▇▇▇▇▇ Healthcare Corporation
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq. - Chief Patent Counsel
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇▇▇ Healthcare Corporation
Baxter Biosciences
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President - Venture Management
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to Nexell, such notices and any other written communications shall
be delivered to:
Nexell of California, Inc.
Nine ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President and CEO
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With copies to:
▇▇▇▇▇ ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
and to:
Nexell Therapeutics Inc.
Nine ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chairman
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
or such other address as any such party may designate in writing and
delivered to the other party hereto pursuant to this Section 9.4. All
such notices or other written communications shall be deemed to have
been received by the addressee if delivered by: hand or by a
nationally recognized overnight delivery service
(with delivery charges prepaid) at the time of delivery; by first
class, registered or certified United States mail (postage prepaid),
three (3) business days after delivery thereof to the United States
Postal Service; or by facsimile transmission, at the time of
transmission.
9.5 Force Majeure. Neither party to this Agreement shall be liable for
-------------
delay or failure in the performance of any of its obligations
hereunder if such delay or failure is due to causes beyond its
reasonable control, including acts of God, fires, earthquakes,
strikes and labor disputes, acts of war, civil unrest or intervention
of any governmental authority, but any such delay or failure shall be
remedied by such party as soon as is reasonably possible. A party's
lack of financial resources to effect its performance hereunder shall
not be considered a force majeure event.
9.6 Limitation of Liability. IN NO EVENT, WHETHER AS A RESULT OF BREACH
-----------------------
OF CONTRACT, TORT LIABILITY (INCLUDING NEGLIGENCE), OR OTHERWISE,
SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL,
PUNITIVE, EXEMPLARY OR LIQUIDATED DAMAGES.
9.7 Use of Names. Neither party shall be permitted to use the name of the
------------
other in any promotional materials or advertising related to the
Products without the prior written consent of the other or as
permitted by the Distribution and License Agreement or Supply
Agreement.
9.8 Assignment. Nexell shall not assign its rights or obligations under
----------
this Agreement to any party during the term of the Distribution and
License Agreement and Supply Agreement without the prior written
consent of Baxter. Notwithstanding the foregoing, and subject to the
terms of the Stockholders Agreement, Nexell may assign its rights
under this Agreement in the event of a sale, merger or other business
combination of Nexell with or into another business, provided that
Nexell obtains the advance written consent of Licensor. Baxter may
assign its rights and obligations hereunder to any party without
prior notice to or consent of Nexell. Subject to the foregoing, this
Agreement shall inure to the benefit of and be binding on the
parties' permitted successors and assigns.
9.9 Waivers and Modifications. The failure of any party to insist on the
-------------------------
performance of any obligation hereunder shall not be deemed to be a
waiver of such obligation. Waiver of any breach of any provision
hereof shall not be deemed to be a waiver of any other breach of such
provision or any other provision. No waiver, modification, release or
amendment of any obligation under or provision of this Agreement
shall be valid or effective unless in writing signed by the other
party to be bound by such waiver, modification, release or amendment.
9.10 Choice of Law and Jurisdiction. This Agreement shall be governed
-------------------------------
by and construed in accordance with the internal laws of the State of
Delaware, without application of conflicts of law principles, and,
subject to Section 9.9, each party
hereby submits to the jurisdiction and venue of any state or federal
court in the State of Delaware. To the extent permissible by law,
each of the parties hereby waives, releases and agrees not to assert,
and agrees to cause its Affiliates to waive, release and not assert,
any rights such party or its Affiliates may have under any foreign
law or regulation that would be inconsistent with the terms of this
Agreement as governed by Delaware law.
9.11 Independent Parties. By virtue of this Agreement, neither party
-------------------
constitutes the other as its agent (except as may otherwise be
expressly provided herein), partner, joint venturer, or legal
representative and neither party has express or implied authority to
bind the other in any manner whatsoever.
9.12 Entire Agreement. This Agreement and the Non-Compete Agreement,
----------------
together with the License Agreement and the Exhibits and Schedules
annexed thereto, and the Asset Purchase Agreement dated as of August
3, 2001, by and among ▇▇▇▇▇▇, Nexell and Nexell Therapeutics Inc.,
and all agreements contemplated thereby (including the agreements
noted on Schedule 5.15 thereof as continuing in effect), constitute
the entire agreement between the parties as to the subject matter
hereof, and all prior negotiations, representations, agreements and
understandings are merged into, extinguished by and completely
expressed by this Agreement and the other agreements referred to
above.
9.13 Counterparts. This Agreement may be executed in any number of
------------
counterparts with the same effect as if all parties had signed the
same document. All such counterparts shall be deemed an original,
shall be construed together, and shall constitute one and the same
instrument.
9.14 Rules of Construction. In this Agreement, unless a clear contrary
---------------------
intention appears:
(a) The singular number includes the plural number and vice versa;
(b) Reference to any party includes such party's permitted
successors and assigns;
(c) Reference to any gender includes the other gender;
(d) Reference to any Section, Exhibit or Schedule means such
section of this Agreement, exhibit to this Agreement or
schedule to this Agreement, as the case may be, and references
in any section or definition to any clause means such clause of
such section or definition;
(e) "Herein," "hereunder," "hereof," "hereto," and words of similar
import shall be deemed references to this Agreement as a whole
and not to any particular section or other provision of this
Agreement;
(f) "Including" (and with the correlative meaning "include") means
including without limiting the generality of any description
preceding such term;
(g) Relative to the determination of any period of time, "from"
means "from and including," "to" means "to but excluding" and
"through" means "through and including";
(h) Reference to any law (including statutes and ordinances) means
such law as amended, modified, codified or reenacted, in whole
or in part, and in effect from time to time, including rules
and regulations promulgated thereunder;
(i) Accounting terms used herein shall have the meanings
historically attributed to them by ▇▇▇▇▇▇ International Inc., a
Delaware corporation, and its subsidiaries prior to the date
hereof;
(j) In the event of any conflict between any of the provisions of
the body of this Agreement and any exhibit or schedule hereto,
the provisions of the body of this Agreement shall control;
(k) The headings contained in this Agreement have been inserted for
convenience of reference only, and are not to be used in
construing this Agreement; and
(l) Any rule of construction or interpretation which might
otherwise require this Agreement to be construed or interpreted
against either party shall not apply to any construction or
interpretation hereof.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
date first set forth above.
▇▇▇▇▇▇ HEALTHCARE CORPORATION
By: /s/
--------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Senior Vice President, Corporate
Strategy and Development
NEXELL OF CALIFORNIA, INC.
By: /s/
---------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
President