License Agreement for Spur Facility - Moyer Packing Co. and Biopure Corp.
LICENSE AGREEMENT FOR SPUR FACILITY
THIS LICENSE AGREEMENT FOR SPUR FACILITY (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 by 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, MOPAC constructed a Spur Facility
which is a segregated portion of the MOPAC Plant, and from which all Material
purchased and sold under the Supply Agreement is sourced.
D. 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 independent contractor, (ii) the Land, and (iii)
the Waste Disposal Rights.
E. MOPAC has exercised the Option, and, by this License Agreement,
contemplated by Subsection IV.4(e)(2) of the Supply Agreement, MOPAC agrees to
grant to Biopure the continued license to use the Spur Facility, upon the terms
and conditions set forth herein.
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:
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 an exclusive license
(the "License"), pursuant to which Biopure, and Biopure's employees, invitees,
agents, licensees, successors and assigns (collectively, "Licensee Parties"),
may enter upon and use the Spur
<PAGE> 2
Facility, as an independent contractor, solely and exclusively for the uses
permitted in the Supply Agreement.
3. TERM OF LICENSE; DEFAULT.
(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 ninety (90) 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 10 below.
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 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 business
operations. MOPAC may at any time and from time to time issue reasonable rules,
instructions and/or regulations with regard to the use of the MOPAC Plant, which
shall apply to the use of the Spur Facility insofar as such reasonable rules,
instructions and/or regulations relating to compliance with law or reducing the
risk of personal injury and/or damage to property at the Spur Facility and/or
the MOPAC Plant. Biopure shall and shall cause its employees, invitees, agents
and licensees to comply fully and promptly with any such reasonable rules,
instructions and/or regulations issued by MOPAC. Biopure shall maintain adequate
supervision and control over its employees, invitees, agents and licensees
entering upon the Spur Facility and/or MOPAC Plant.
2
<PAGE> 3
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 SPUR FACILITY.
(a) BY BIOPURE. If the exercise by Biopure and/or the Licensee Parties
of their rights and privileges under the License shall cause damage to the Spur
Facility and/or the MOPAC Plant, 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.
3
<PAGE> 4
(b) BY MOPAC. If MOPAC, its agents or employees, shall cause damage to
the Spur Facility, 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
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. BIOPURE'S DUTY TO MAINTAIN THE SPUR FACILITY. Biopure, during the Term,
shall at its sole cost and expense keep and maintain the Spur Facility in good
order and condition. MOPAC will provide assistance to Biopure in the maintenance
of the Spur Facility and, on a monthly basis shall, be reimbursed by Biopure for
all costs and expenses related to such maintenance services provided by MOPAC.
Notwithstanding the foregoing, MOPAC will be responsible, at MOPAC's sole cost
and expense, for the daily normal cleaning and sanitation of the Spur Facility.
9. 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 Spur Facility 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 Spur Facility 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 Spur
Facility and/or the MOPAC Plant adverse to MOPAC, by virtue of any such use,
intrusion or encroachment, no matter how long continued.
10. 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.
11. BINDING EFFECT. This License Agreement shall be binding upon, and inure
to the benefit of, the parties hereto, and their respective successors and
assigns.
12. AMENDMENTS. This License Agreement may not be changed or amended,
except by a writing signed by each of the parties hereto.
13. MISCELLANEOUS. This License Agreement, together with the Supply
Agreement, contains the entire agreement 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.
4
<PAGE> 5
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)
5
<PAGE> 6
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
6
<PAGE> 7
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.
------------------------------------------
7