License Agreement for Waste Disposal System - Moyer Packing Co. and Biopure Corp.
LICENSE AGREEMENT FOR WASTE DISPOSAL SYSTEM
THIS LICENSE AGREEMENT FOR WASTE DISPOSAL SYSTEM (this "License Agreement")
is made as of the 12th day of June, 2001, by and between MOYER PACKING COMPANY,
a Pennsylvania corporation ("MOPAC") and BIOPURE CORPORATION, a Delaware
corporation ("Biopure").
BACKGROUND:
A. MOPAC and Biopure are parties to that certain Agreement dated October
21, 1994, as amended pursuant to that certain Amendment to Agreement dated
November 1, 1999, and that certain Second Amendment to Agreement of even date
herewith (collectively, the "Supply Agreement").
B. Pursuant to the Supply Agreement, MOPAC supplies Material to Biopure
and Biopure purchases Material from MOPAC for use in Biopure's Product.
C. Pursuant to the Supply Agreement, Biopure constructed a Separation
Facility on the Land, which Separation Facility is used in connection with the
processing of Materials into Product.
D. The Land is the leasehold interest under a Ground Lease Agreement
between MOPAC and Biopure (the "Lease") and is being conveyed to Biopure
concurrently with the execution and delivery of this License Agreement, but
without termination of the Lease.
E. Pursuant to the Supply Agreement, MOPAC handles the process waste
disposal requirements of the Separation Facility through the waste disposal
system (the "System") currently in existence and used by the MOPAC Plant.
F. Pursuant to the Supply Agreement, Biopure granted to MOPAC a stock
option (the "Option") to purchase 80,000 shares of Common Stock of Biopure. The
consideration to be paid by MOPAC for the Option shares is good and marketable
title to the Assets, which Assets consist of: (i) the continued license to use
the Spur Facility as an outside contractor, (ii) the Land, and (iii) the Waste
Disposal Rights.
G. MOPAC has exercised the Option, and, by this License Agreement,
contemplated by Section IV.4(e)(2) of the Supply Agreement, the parties hereto
desire to set forth the terms and conditions of Biopure's continued license to
use the System.
NOW, THEREFORE, for and in consideration of the sum of One Dollar ($1.00),
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, and intending to be legally bound hereby, the parties
hereby agree as follows:
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1. Capitalized terms used herein, and not otherwise defined herein, shall
have the meaning ascribed to such terms in the Supply Agreement. The recitals
set forth at the beginning of this License Agreement shall be deemed to be an
integral part of this License Agreement, and are hereby incorporated into this
License Agreement.
2. GRANT OF LICENSE. MOPAC hereby grants to Biopure a non-exclusive license
(the "License"), pursuant to which Biopure, and Biopure's successors and assigns
(collectively, "Licensee Parties"), may continue to discharge certain waste
materials from the Separation Facility (specifically excluding domestic/human
waste) into the System, in accordance with the terms, conditions and limitations
set forth in the Supply Agreement and the Lease. From and after the date of this
License Agreement and during the Term (as hereinafter defined) Biopure shall no
longer be required to pay for usage of the System, as was heretofore required
pursuant to Sections III.1(b) and III.3 of the Supply Agreement; provided,
however, that the provisions of the Supply Agreement applicable to allocating
Capital Costs in the event that the System requires a capacity increase (as
described in Section III.1(c) of the Supply Agreement) remain in full force and
effect.
3. TERM OF LICENSE; TERMINATION.
(a) TERM. The term ("Term") of the License shall commence on the date
of this Agreement and shall continue for the term set forth in Section III.4 of
the Supply Agreement.
(b) DEFAULT. A party shall be in default under this License Agreement
if said party fails to observe or perform its respective duties and obligations
under Sections 5-8 of this License Agreement, and such failure continues for a
period of fifteen (15) days after written notice from the non-breaching party,
or if such observance or performance is not capable of being accomplished within
such time, then within such additional reasonable time as may be necessary,
provided that the cure is commenced during such fifteen (15) day period and
diligently prosecuted to completion as soon as possible, and in no event later
than sixty (60) days after the initial notice of default. In the event of a
default, the non-breaching party shall be entitled to exercise all of its rights
and remedies provided under this License Agreement, at law, in equity, and/or
otherwise, each such remedy being considered cumulative. No single exercise of a
remedy shall be deemed an election to forego any other remedy and any failure to
pursue a remedy shall not prevent, restrict or otherwise modify its exercise
subsequently.
(c) TERMINATION. In the event that a party is in default under this
License Agreement (and such default is not cured within the time frame set forth
above) more than two (2) times in any period of twenty four (24) consecutive
months, the non-breaching party may terminate this License Agreement by notice
of such termination given in accordance with Section 9 below. It is understood
and agreed that MOPAC has made no representations, warranties and/or covenants,
expressed or implied, regarding the continued operation of the System.
4. EXERCISE OF LICENSE. Biopure shall and shall cause its employees,
invitees, agents and licensees, at all times, to exercise the License in
compliance with the Supply Agreement and
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all applicable laws, rules and regulations of all governmental and
administrative bodies and agencies, and in such manner as to avoid interference
with or disruption of MOPAC's use of the System or MOPAC's business operations;
provided that this Section 4 shall not be construed to prohibit the occurrence
or condition of a need for a capacity increase with the attendant rights and
obligations set forth in Section III.1(c) of the Supply Agreement.
5. INDEMNIFICATION.
(a) INDEMNIFICATION BY BIOPURE. Biopure hereby agrees to indemnify,
defend and hold harmless MOPAC, and MOPAC's successors and assigns from and
against all losses, liabilities, claims, demands, causes of action, damages,
fines, fees, costs, including reasonable attorneys fees, whether or not covered
by insurance, arising out of, resulting from or caused by Biopure, or its
employees, invitees, agents or licensees, by exercise of the License or failure
to comply with the provisions of this License Agreement.
(b) INDEMNIFICATION BY MOPAC. MOPAC hereby agrees to indemnify, defend
and hold harmless Biopure, and Biopure's successors and assigns, from and
against all losses, liabilities, claims, demands, causes of action, damages,
fines, fees, costs, including reasonable attorneys fees, whether or not covered
by insurance, arising out of, resulting from or caused by MOPAC, or its
employees, invitees, or agents under this License Agreement.
(c) The obligations of each party set forth in this Section 5 shall
survive termination and/or expiration of this License Agreement and/or the
License herein granted.
6. INSURANCE.
(a) INSURANCE BY BIOPURE. Biopure shall obtain and maintain during the
Term, as a condition precedent to the exercise of the License, comprehensive
general liability insurance coverage in such form and issued by such insurance
company or companies as shall be reasonably satisfactory to MOPAC, with coverage
for bodily injury, including death, in an amount not less than Five Million
Dollars ($5,000,000.00) per occurrence, and with coverage for damage to or loss
or destruction of property, including loss of use thereof, in an amount not less
than Five Million Dollars ($5,000,000.00). Biopure shall provide MOPAC with a
certificate of such insurance naming MOPAC as an additional named insured and
providing for no less than ten (10) days prior written notice before the
insurance provided thereunder is terminated or modified.
(b) INSURANCE BY MOPAC. MOPAC shall obtain and maintain during the
Term, comprehensive general liability insurance coverage, with coverage for
bodily injury, including death, in an amount not less than Five Million Dollars
($5,000,000.00) per occurrence and with coverage for damage to or loss or
destruction of property, including loss of use thereof, in an amount not less
than Five Million Dollars ($5,000,000.00).
7. RESTORATION OF SYSTEM.
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(a) BY BIOPURE. If the exercise by Biopure and/or the Licensee Parties
of their rights and privileges under the License shall have caused damage to the
System, or any part thereof, Biopure shall immediately repair all such damage,
including, without limitation, remediation of any environmental damage or
contamination, and upon the failure of Biopure to make such repairs or to
remediate, MOPAC may proceed to have such repairs or remediation done and
collect the cost of such repairs or remediation from Biopure, which Biopure
hereby agrees to pay upon demand.
(b) BY MOPAC. If the use of the System by MOPAC, its successors or
assigns, shall have caused damage to the System, or any part thereof, MOPAC
shall immediately repair all such damage, including, without limitation,
remediation of any environmental damage or contamination, and upon the failure
of MOPAC to make such repairs or to remediate, Biopure may proceed to have such
repairs or remediation done and collect the cost of such repairs or remediation
from MOPAC, which MOPAC hereby agrees to pay upon demand.
(c) The obligations of each party set forth in this Section 7 shall
survive termination and/or expiration of the License and/or this License
Agreement.
8. NO ADVERSE POSSESSION. Biopure covenants and agrees that neither the
continued exercise of the License hereunder, nor any other use of or intrusion
upon any part of the System and/or the MOPAC Plant by Biopure or any other
person claiming under Biopure, shall ever be deemed to be adverse to the title
or possession of MOPAC of the System and/or the MOPAC Plant, but shall be deemed
to be by and with the permission of MOPAC; and no such person or entity shall
ever have the right to claim rights in, over or upon the System and/or the MOPAC
Plant adverse to MOPAC, by virtue of any such use, intrusion or encroachment, no
matter how long continued.
9. NOTICE. All notices and other communications which are to be given under
this License Agreement shall be given in accordance with the notice provisions
set forth in the Supply Agreement.
10. BINDING EFFECT. This License Agreement shall be binding upon, and inure
to the benefit of, the parties hereto, and their respective successors and
assigns.
11. AMENDMENTS. This License Agreement may not be changed or amended,
except by a writing signed by each of the parties hereto.
12. MISCELLANEOUS. This License Agreement, together with the Supply
Agreement, contains the entire understanding of MOPAC and Biopure with respect
to the subject matter hereof and supersedes and cancels any and all prior
negotiations, discussions and agreements between MOPAC and Biopure with respect
thereto. Each and every provision of this License Agreement has been mutually
negotiated, prepared and drafted, and in connection with the construction of any
provision hereof, no consideration shall be given to the issue of which party
actually prepared, drafted, requested or negotiated any provision of this
License Agreement or its deletion.
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IN WITNESS WHEREOF, the parties hereto have executed this License Agreement
the day and year above written.
MOYER PACKING COMPANY
Attest: --------------------------- By: /s/ William G. Morral
--------------------------------
Name: Name: William G. Morral
----------------------------- ------------------------------
Title: Title: Senior Vice President and CFO
----------------------------- -----------------------------
(CORPORATE SEAL)
BIOPURE CORPORATION
Attest: By: /s/ Francis H. Murphy
---------------------------- --------------------------------
Name: Name: Francis H. Murphy
----------------------------- ------------------------------
Title: Title: CFO
----------------------------- -----------------------------
(CORPORATE SEAL)
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COMMONWEALTH OF PENNSYLVANIA:
: ss.
COUNTY OF MONTGOMERY :
On the 12th day of June, A.D. 2001, before me, a Notary Public for the
above County and Commonwealth of Pennsylvania, personally appeared WILLIAM G.
MORRAL, who acknowledged herself/himself to be the SENIOR VICE PRESIDENT AND CFO
of MOYER PACKING COMPANY, a corporation, and that she/he as such officer, being
authorized to do so, executed the foregoing instrument for the purposes therein
contained by signing the name of the corporation by herself/himself as SENIOR
VICE PRESIDENT AND CFO.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
-----------------------------------
Notary Public
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STATE OF PENNSYLVANIA:
: ss.
COUNTY OF MONTGOMERY :
On the 12TH day of JUNE, A.D. 2001, before me, a Notary Public for the
above County and State of PENNSYLVANIA, personally appeared FRANCIS H. MURPHY,
who acknowledged herself/himself to be the CFO of BIOPURE CORPORATION, a
corporation, and that she/he as such officer, being authorized to do so,
executed the foregoing instrument for the purposes therein contained by signing
the name of the corporation by herself/himself as CFO.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
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