License Agreement - Pharmos Ltd. and Herbamed Ltd.
LICENSE AGREEMENT
THIS AGREEMENT is made and entered into this 18th day of December, 2001, (the
"Effective Date") by and between PHARMOS LTD., a corporation duly organized and
existing under the laws of the State of Israel, (hereinafter referred to as
"Pharmos"), and HERBAMED LTD., a corporation duly organized and existing under
the laws of the State of Israel (hereinafter referred to a "Licensee").
WITNESSETH
WHEREAS, Pharmos is the owner of certain "Patent Rights" (as defined in Article
1) relating to improved oral delivery of lipophilic substances;
WHEREAS, Pharmos is willing to grant, and Licensee desires to obtain, a license
under the Patent Rights upon the terms and conditions hereinafter set forth;
WHEREAS, Pharmos Corporation, a corporation duly organized and existing under
the laws of Nevada and the Parent Company of its wholly owned subsidiary,
Pharmos Ltd. and Licensee entered into a License Agreement on May 21st, 1997
(the "Original Agreement"); and
WHEREAS, it is now the parties desire to cancel the Original Agreement and any
subsequent agreements entered into thereafter by the parties and to be bound
only by the terms of this current Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained here the parties hereto agree as follows:
ARTICLE I - DEFINITIONS
For the purposes of this Agreement, the following words and phrases shall have
the following meanings:
1.1 "Licensee" shall include all of the following:
(a) a related company of Licensee, the voting stock which is directly or
indirectly at least fifty percent (50%) owned or controlled by Licensee;
(b) an organization which directly or indirectly controls more than fifty
percent (50%) of the voting stock of Licensee;
(c) an organization, the majority ownership of which is directly or indirectly
common to the ownership of Licensee.
1.2 "Patent Rights" shall mean all information, inventions or discoveries
covered by the patents and/or patent applications listed in Appendix A hereto,
and any and all patents issuing therefrom, owned by or licensed to Pharmos with
the right to sublicense. "Patents" as used in this Agreement shall include,
without limitation, all substitutions, continuations, continuations-in-part,
divisions, reissues, extensions and foreign counterparts of the aforementioned.
1.3 A "Licensed Product" shall mean active ingredient and/or compound in the
Field of Use (as such term is defined in Section 1.6, below).
1.4 "Net Sales" shall mean Licensee's billings for Licensed Products produced
hereunder less the sum of the following:
(a) Discounts allowed in amounts customary in the trade;
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(b) sales, tariff duties and/or use taxes directly imposed and with reference to
particular sales;
(c) outbound transportation prepaid or allowed; and
(d) amounts allowed or credited on returns.
No deductions shall be made for commissions paid to individuals whether they be
with independent sales agencies or regularly employed by Licensee and on its
payroll, or for cost of collections. Licensed Products shall be considered
"sold" when payment in respect thereof is received by Licensee.
1.5 "Territory" shall mean the world.
1.6 "Field of Use" shall mean the field of Nutraceuticals, specifically in the
following categories: formulation of food and dietary supplements, food
additives, nutritional ingredients, natural ingredients, food industry, food
ingredients, food and functional food applications, nutritional beverages,
vitamins, minerals, herbals, herbal supplements, health nutrients,
phytonutraceuticals, cosmetics, cosmoceuticals (excluding any and all existing
or future topical pharmaceutical applications and or uses in the cosmetic and/or
cosmoceuticals fields) and any new applications or uses developed or arising in
the field of Nutraceuticals.
ARTICLE II - GRANT
2.1 Pharmos hereby grants to Licensee the exclusive right and license under the
Patent Rights to make, have made, use and sell Licensed Products in the
Territory, for the Field of Use, subject to the provisions of Article IIA below.
2.2 The term of this Agreement shall be for a period of 3 (three) years (the
"Initial Term"), unless terminated earlier under Article X111, below.
Thereafter, this Agreement shall be renewed automatically for additional
consecutive three-year terms ("Renewal Term") and shall continue to remain in
effect until the expiration of the last patent relevant to the technology
granted hereunder and for so long as License uses its best efforts, including by
not limited to financing, developing and commercializing the Licensed Products
in the Field of Use. In the event Pharmos reasonably determines that Licensee is
not utilizing the exclusive rights granted to it herein so as to achieve the
aforementioned objectives, Pharmos may provide License with notice of its desire
to not renew this Agreement thirty days in advance of any Renewal Term.
2.3 In order to establish exclusivity for Licensee, Pharmos hereby agrees that
it shall not grant any other license to make, have made, use and sell Licensed
Products in the Territory for the Field of Use during the period of time
commencing with the Effective Date of this Agreement and terminating with the
expiration of this Agreement.
2.4 Pharmos reserves the right to practice under the Patent Rights for research
purposes and other uses not within the Field of Use.
2.5 Licensee may enter into sublicensing agreements consistent with this
Agreement for the rights, privileges and licenses granted hereunder, subject to
the prior approval of Pharmos on a case-by-case basis, which approval shall not
be unreasonably withheld. Licensee shall notify Pharmos of the initiation of
license negotiations with all potential sublicensees.
2.6 Licensee agrees to forward to Pharmos copies of all sublicense agreements
within thirty (30) days of the execution of such sublicense agreements, which
will be treated confidentially in the same manner as Pharmos treats all
confidential documents, and further agrees to forward to Pharmos annually a copy
of such reports received by Licensee from its sublicensees during the preceding
twelve (12) month period under the sublicenses as shall be pertinent to a
royalty accounting under said sublicense agreements.
2.7 Licensee's rights to produce any such Licensed Product shall automatically
expire if Licensee has not amply demonstrated a good faith effort to utilize the
rights and privileges granted hereunder in research and
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development and/or marketing of Licensed Product(s) within 5 (five) years
following the Effective Date of this Agreement.
2.8 The license granted hereunder shall not be construed to confer any rights
upon Licensee by implication, estoppel or otherwise not specifically set forth
herein. Licensee (for itself and its sublicensees) acknowledges and agrees that
Pharmos is and shall remain the sole owner of the Patent Rights, and that
neither Licensee nor its sublicensees have any rights in or to the Patent Rights
other than the rights specifically granted herein to Licensee.
ARTICLE IIA - COMMERCIALIZATION
Licensee shall use its best efforts to commercialize and achieve sales of
Licensed Products throughout the Territory. If Licensee fails to commence sales
of the Licensed Product within a period of five (5) years from the Effective
Date, then may, at its option, convert the license granted under Article II
above to a non-exclusive License
ARTICLE III - DUE DILIGENCE
3.1 Licensee, through a thorough, vigorous and diligent program for exploitation
of the Patent Rights, shall use its best efforts to attain maximum
commercialization of Licensed Products.
3.2 Licensee shall deliver to Pharmos on or before the expiration of one year
from the Effective Date a business plan showing the amount of money, number and
kind of personnel and time budgeted and planned for each phase of development of
the Licensed Products and shall provide similar reports to Pharmos on an annual
basis on or before the ninetieth (90th) day following the close of Licensee's
fiscal year.
ARTICLE IV - PAYMENTS
4.1 For the rights, privileges and license granted hereunder, Licensee shall
make royalty payments to Pharmos in the manner, and in the amounts, hereinafter
provided to the end of the term of this Agreement or until this Agreement shall
be terminated, as hereinafter provided:
(i) After the Effective Date of this Agreement, six percent (6%) of Licensee's
Net Sales, for so long as Licensee's Net Sales remain below the amount of $20
(twenty) million US Dollars. Thereafter, after Licensee's sales increase so they
total above the amount of $20 (twenty) million US Dollars, but not above $50
(fifty) million US Dollars, the royalty payments due to Pharmos shall be 5%. In
the event Licensee's Net sales increase to an amount above $50 (fifty) million
US Dollars, the royalty payments due to Pharmos shall be 4% of Licensee's Net
Sales, All as summarized in the table immediately below;
Licensee's Net Sales Royalty Payments
-------------------- ----------------
Up to US$ 20 million 6%
US$ 20 - 50 million 5%
Above US$ 50 million 4%
The above listed royalty payments shall also apply to any Net Sales of any
sublicensees of Licensee. Without derogating from the above, Pharmos, in its
sole discretion and on a case by case basis, may determine that the percentage
of royalty payments due from a specific sublicensee may be lower than the
amounts set forth herein.
(ii) thirty percent (30%) of amounts payable to Licensee as royalty payments
from any sublicensee in connection with any sublicense under the Licensed
Patents.
4.2 No multiple royalties shall be payable because any Licensed Product, its
manufacture, use or sale are or shall be covered by more than one Patent Rights
patent application or Patent Rights patent licensed under this Agreement.
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4.3 Royalty payments above shall be paid in freely transferable US Dollars to a
bank account designated by Pharmos. If any currency conversion shall be required
in connection with any payment hereunder, such conversion shall be made by using
the exchange rate prevailing at Bank Leumi Ltd. on the last business day of the
calendar quarterly reporting period to which such royalty payments relate.
Payments shall be made in accordance with the provisions of Article 5.
4.4 Licensee shall be liable for any and all deductions for taxes, assessments
or other charges which may be levied by a proper taxing authority on account of
royalties or other payments accruing to Pharmos under this Agreement. Such taxes
may not be deducted from royalties or other payments to be paid to Pharmos
hereunder.
ARTICLE V - REPORTS AND RECORDS
5.1 Licensee shall keep full, true and accurate books of account containing all
particulars that may be necessary for the purpose of showing the amounts payable
to Pharmos hereunder. Said books of account shall be kept at Licensee's
principal place of business. Said books and the supporting data shall be open at
all reasonable times for three (3) years following the end of the calendar year
to which they pertain, to the inspection of Pharmos or its agents for the
purpose of verifying Licensee's royalty statement or compliance in other
respects with this Agreement. All such documents shall be subject to limitations
to disclosure required by law. Licensee shall include substantially the same
inspection rights in any sublicense it grants in order to ensure correctness of
payments due hereunder.
5.2 Licensee within thirty (30) days after March 31, June 30, September 30 and
December 31, of each year, shall deliver to Pharmos true and accurate reports,
giving such particulars of the business conducted by Licensee and its
sublicensees during the preceding three-month period of this Agreement as shall
be pertinent to a royalty accounting hereunder. These shall include at least the
following:
(a) number of Licensed Products manufactured and sold;
(b) total billings for Licensed Products sold;
(c) deductions applicable as provided in Paragraph 1.5; and
(d) total royalty due.
5.3 With each such report submitted, Licensee shall pay to Pharmos the royalties
due and payable under this Agreement. If no royalties shall be due, Licensee
shall so report.
5.4 All payments required under this Agreement (including but not limited to
payments under Articles IV and VI) shall, if overdue, bear interest until
payment at the monthly rate of one and one-half percent (1.5%). The payment of
such interest shall not foreclose Pharmos from exercising any other rights it
may have as a consequence of the lateness of any payment.
ARTICLE VI - PATENT PROTECTION
6.1 Pharmos shall in consultation with Licensee, apply for, seek issuance of,
and maintain during the term of this Agreement the applicable current Patent
Rights in the relevant countries on an as needed basis . The prosecution, filing
and maintenance of all Patent Rights patents and applications shall be the
primary responsibility of Pharmos; provided, however, Licensee shall have
reasonable opportunities to advise Pharmos and shall cooperate with Pharmos in
such prosecution, filing and maintenance.
6.2 Payment of all customary and usual fees and costs relating to the filing,
prosecution, and maintenance of the Patent Rights relating to the specific
patents used in the field of Use, as defined above, shall be the responsibility
of Licensee, after the date of this Agreement. Pharmos shall bill Licensee for
these costs and fees as received, and Licensee shall pay for these costs and
fees within thirty (30) days of invoicing by Pharmos. All requests for payments
shall be accompanied by appropriately detailed information.
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6.3 If Licensee decides to discontinue the financial support of the prosecution
or maintenance of the protection, Pharmos shall be free to file or continue
prosecution or maintain any such application(s), and to maintain any protecting
issuing thereon in any country at Pharmos' expense, and Pharmos shall be free to
license said application(s) and patent(s) to third parties, and/or terminate
this Agreement.
6.4 Licensee agrees to mark all Licensed Products in such a manner as to conform
with the patent laws and practice of the country of manufacture, sale or use.
6.5 Pharmos represents and warrants that (a) Pharmos owns the rights to the
Patent Rights and has the full right and power to grant the licenses set forth
in Article 2 of this Agreement, and (b) to the best of Pharmos's knowledge, the
execution, delivery and performance of this Agreement by Pharmos does not
conflict with or violate any provision of law to which Pharmos is subject, or of
any agreement to which Pharmos is a party or by which it is bound.
ARTICLE VII - INFRINGEMENT
7.1 Licensee shall inform Pharmos promptly in writing of any alleged
infringement of the Patent Rights by a third party and of any available evidence
thereof.
7.2 During the term of this Agreement, Pharmos shall have the right, but shall
not be obligated, to prosecute at its own expense any such infringements of the
Patent Rights. If Pharmos prosecutes any such infringement, Licensee agrees that
Pharmos may join Licensee as a party plaintiff in any such suit, without expense
to Licensee. The total cost of any such infringement action commenced or
defended solely by Pharmos shall be borne by Pharmos and Pharmos shall keep any
recovery or damages for past infringement derived therefrom. Costs for jointly
prosecuted or defended actions shall be borne by Pharmos, and Licensee who shall
share equally any recovery or damages. Licensee may join and actively
participate in such action at its expense and share in any recovery, to the
extent of Licensee's customary and usual legal expenses relating to the
litigation.
7.3 If within 90 days after having been notified of any alleged infringement or
such shorter time prescribed by law, Pharmos shall have been unsuccessful in
persuading the alleged infringer to desist and shall not have brought and shall
not be diligently prosecuting an infringement action, or if Pharmos shall notify
Licensee at any time prior thereto of its intention not to bring suit against
any alleged infringer then, and in those events only, Licensee shall have the
right, but shall not be obligated, to prosecute at its own expense any
infringement of the Patent Rights, and Licensee may, for such purposes, use the
name of Pharmos as a party plaintiff; provided, however, that such right to
bring an infringement action shall remain in effect only for so long as the
license granted herein is in effect (or the action is being pursued) whichever
is later. No settlement, consent judgment or other voluntary final disposition
of the suit may be entered into without the consent of Pharmos which consent
shall not unreasonably be withheld. Licensee shall indemnify Pharmos against any
order for costs that may be made against Pharmos in such proceedings.
7.4 In the event that Licensee shall undertake the enforcement and/or defense of
the Patent Rights by litigation, Licensee may withhold up to fifty percent (50%)
of the royalties or other payments otherwise thereafter due Pharmos hereunder
and apply the same toward expenses related to the infringement including, but
not limited to, reimbursement of its expenses related to the litigation,
including reasonable attorneys' fees, in connection therewith. Said withholding
of royalties shall begin no earlier than the date Licensee first receives a bill
for professional services or expenses associated with the enforcement and/or
defense of the Patent Rights. Any recovery of damages by Licensee for any such
suit shall be applied first in satisfaction of any unreimbursed expenses and
legal fees of Licensee relating to the suit, and next toward reimbursement of
Pharmos for any royalties past due or withheld and applied pursuant to this
Article VII. The balance remaining from any such recovery shall be divided
equally between Licensee and Pharmos.
7.5 In any infringement suit as either party may institute to enforce the Patent
Rights pursuant to this Agreement, the other party hereto shall, at the request
and expense of the party initiating such suit, cooperate in all
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respects and, to the extent possible, have its employees testify when requested
and make available relevant records, papers, information, samples, specimens,
and the like.
7.6 In the event that a declaratory judgment action alleging invalidity or
noninfringement of any of the Patent Rights shall be brought against Licensee,
Pharmos at its option, shall have the right, within thirty (30) days after
commencement of such action, to intervene and take over the sole defense of the
action at its own expense.
ARTICLE VIII - PRODUCT LIABILITY
8.1 Licensee shall at all times during the term of this Agreement and
thereafter, indemnify, defend and hold Pharmos, its officers, directors,
employees and affiliates, harmless against all claims and expenses, including
legal expenses and reasonable attorneys' fees, arising out of the death of or
injury to any person or persons or out of any damage to property and against any
other claim, proceeding, demand, expense and liability of any kind whatsoever
resulting from the production, manufacture, sale, use, consumption or
advertisement of the Licensed Product(s) or arising from any obligation of
Licensee or its sublicensees hereunder.
8.2 Licensee and its sublicensees shall obtain and carry in full force and
effect comprehensive general liability insurance, including products liability
insurance, with reputable and financially secure insurance carriers which shall
protect Pharmos in regard to events covered by Paragraph 8.1 above. Such
insurance shall include Pharmos as a named insured, shall require prior notice
to Pharmos before cancellation and shall be in an amount which is reasonable in
light of the anticipated use of the licenses granted hereunder.
8.3 EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, PHARMOS MAKES NO
REPRESENTATIONS AND EXTENDS NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR
IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR
A PARTICULAR PURPOSE, AND VALIDITY OF PATENT RIGHTS CLAIMS, ISSUED OR PENDING.
IN NO EVENT WILL PHARMOS BE LIABLE FOR DAMAGES OF ANY NATURE, INCLUDING DIRECT,
INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES RESULTING FROM THE EXERCISE OF
LICENSEE'S RIGHTS UNDER THE LICENSE GRANTED PURSUANT TO THIS AGREEMENT OR THE
USE OF THE LICENSED PATENTS.
ARTICLE IX - CONFIDENTIAL INFORMATION.
All scientific and technical information in respect of the Licensed Patents
communicated by Pharmos to Licensee, including, without limitation, information
contained in patent applications, shall be received in strict confidence by
Licensee and its sublicensees, used only for the purposes of this Agreement and
not disclosed by Licensee or its sublicensees or their respective agents or
employees without the prior written consent of Pharmos, unless such information
(i) was in the public domain at the time of disclosure, (ii) later became part
of the public domain through no act or omission of Licensee or its sublicensees,
or their respective employees agents, successors, or assigns, (iii) was already
known by Licensee at the time of disclosure and Licensee can so demonstrate by
competent written proof or (iv) is required to be disclosed to a governmental
agency pursuant to such agency's rule and regulations in order to secure
regulatory approval, provided that Licensee shall first give notice to Pharmos
of such disclosure and shall have made a reasonable effort to maintain the
confidentiality of such information. Licensee's right to disclose information to
its sublicensees under the Licensed Patents is subject to the agreement by such
sublicensees to be bound by these confidentiality provisions.
ARTICLE X - EXPORT CONTROLS
Licensee hereby agrees that it shall not sell, transfer, export or re-export any
Licensed Products or related information in any form, or any direct products of
such information, except in compliance with all applicable laws, and
regulations, and will not sell, transfer, export or re-export any such Licensed
Products or information to any persons or any entities with regard to which
there exist grounds to suspect or believe that they are violating such laws.
Licensee shall be solely responsible for obtaining all licenses, permits or
authorizations required from any government for any such export or re-export. To
the extent not inconsistent with this Agreement, Pharmos agrees to
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provide Licensee with such assistance as it may reasonably request in obtaining
such licenses, permits or authorization.
ARTICLE XI - NON-USE OF NAME
Licensee shall not use the name of Pharmos nor any adaptation thereof, in any
advertising, promotional or sales literature without prior written consent
obtained from Pharmos in each case, except that Licensee may state that it is
licensed by Pharmos under one or more of the patents and/or applications
comprising the Patent Rights. Nothing herein shall apply to disclosures required
by law or regulation. Licensee may not use the name of Pharmos to imply that
Pharmos represents that the Patent Rights or Licensed Products are merchantable,
are fit for a particular purpose, or are worthy of investment by an individual
or an organizational investor.
Pharmos shall not use the names of Licensee, nor of any of Licensee's employees,
in any advertising, promotional or sales literature without prior written
consent obtained from Licensee in each case. Pharmos may not use the name of
Licensee to imply that either organization represents that the Patent Rights or
Licensed Products are merchantable, are fit for a particular purpose, or are
worthy of investment by an individual or an organizational investor.
ARTICLE XII - ASSIGNMENT
This Agreement is not assignable and any attempt to do so shall be void, except
in the event Pharmos undergoes/effectuates a sale of all or substantially all of
its securities or assets, a merger or acquisition, or reorganization.
ARTICLE XIII - TERMINATION
13.1 If Licensee shall cease to carry on its business, this Agreement shall
terminate upon notice by Pharmos.
13.2 Should Licensee fail to pay Pharmos any amounts due and payable hereunder,
Pharmos shall have the right to terminate this Agreement on thirty (30) days'
notice, unless Licensee shall pay Pharmos within the thirty (30) day period, all
such amounts and interest due and payable. Upon the expiration of the thirty
(30) days period, if Licensee shall not have paid all such amounts and interest
due and payable, the rights, privileges and license granted hereunder shall
terminate.
13.3 Upon any material breach or default of this Agreement by Licensee, other
than those occurrences set out in Paragraph 13.1 and 13.2 hereinabove, which
shall always take precedence in that order over any material breach or default
referred to in this Paragraph 13.3, Pharmos shall have the right to terminate
this Agreement and the rights, privileges and license granted hereunder by sixty
(60) days' notice to Licensee. Such termination shall become effective unless
Licensee shall have cured any such breach or default prior to the expiration of
the sixty (60) day period. Upon said termination all Patent Rights and all
regulatory documents related thereto shall revert to Pharmos and Licensee shall
execute all necessary documents to effectuate such transfer.
13.4 Licensee shall have the right to terminate this Agreement at any time on
six (6) months' notice to Pharmos, and upon payment of all amounts due Pharmos
through the effective date of the termination.
13.5 Pharmos may terminate this Agreement for any particular Licensed Product
upon the occurrence of the third separate default by Licensee within any
consecutive three (3) year period for failure to pay royalties when due on said
Licensed Product.
13.6 Upon termination of this Agreement for any reason, nothing herein shall be
construed to release either party from any obligation that matured prior to the
effective date of such termination. Licensee and any sublicensee thereof may,
however, after the effective date of such termination, sell all Licensed
Products, and complete Licensed Products in the process of manufacture at the
time of such termination and sell the same, provided that Licensee shall pay to
Pharmos the royalties thereon as required by Article IV of this Agreement and
shall submit the reports required by Article V hereof on the sales of Licensed
Products.
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13.7 Upon termination of this Agreement for any reason, any sublicensee not then
in default shall have the right to seek a license from Pharmos.
13.8 The rights and obligations of the parties under Articles VIII, IX and XIV
shall survive any termination of this Agreement.
ARTICLE XIV - CHOICE OF LAW
This Agreement is made in accordance with and shall be governed and construed in
accordance with the laws of the State of Israel, without regard to conflicts of
laws rules.
ARTICLE XV - PAYMENTS, NOTICES AND OTHER COMMUNICATIONS
15.1 The payments to be made hereunder to Pharmos shall be made by wiring the
required amount to Pharmos' bank in accordance with Pharmos' instructions or by
mailing or sending by commercial courier checks for the required amount to
Pharmos' address.
15.2 Notices provided for herein shall effectively be given by facsimile or by
mailing the same by certified or registered mail or by delivery by commercial
courier, in each case properly addressed with charges prepaid, to the fax
numbers/addresses set forth below:
To Licensee: Herbamed Ltd.
Science Park
Kiryat Weitzman
Rehovot, Israel 76326
Attention: Avraham Landa
Fax: 00972-8-940-7460
To Pharmos: Pharmos Limited
99 Would Avenue South, Suite 301
Iselin New Jersey, 08830 USA
Attention: Gad Riesenfeld
Fax: 001-904-462-5401
Either party may change its address or fax number by giving notice thereof to
the other party.
ARTICLE XVI - DIRECTOR AND SHAREHOLDER RATIFICTION
This Agreement shall take effect on the Effective Date, provided that
ratification of this Agreement by the: (i) shareholders' and directors' of
Licensee and (ii) directors' of Licensor is obtained within 90 (ninety) days
from the Effective Date.
ARTICLE XVII- MISCELLANEOUS
17.1 The provisions of this Agreement are severable, and in the event that any
provisions of this Agreement shall be determined to be invalid or unenforceable
under any controlling body of the law, such invalidity or unenforceability shall
not in any way affect the validity or enforceability of the remaining provisions
hereof.
17.2 The failure of either party to assert a right hereunder or to insist upon
compliance with any term or condition of this Agreement shall not constitute a
waiver of that right to excuse a similar subsequent failure to perform any such
term or condition by the other party.
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17.3 The headings used in this Agreement are for convenience of reference only
and are not intended to be a part of or to affect the meaning or interpretation
of this Agreement.
17.4 No amendment or modification hereof shall be valid or binding upon the
parties unless made in writing and signed by both parties.
17.5 In making and performing this Agreement, Pharmos and Licensee act and shall
act at all times as independent contractors and nothing contained in this
Agreement shall be construed or implied to create an agency, partnership or
employer and employee relationship between Pharmos and Licensee. At no time
shall one party make commitments or incur any charges or expenses for or in the
name of the other party except as specifically provided herein.
17.6 The parties hereto acknowledge that this Agreement sets forth the entire
Agreement and understanding of the parties hereto as to the subject matter
hereof, and shall not be subject to any change or modification except by the
execution of a written instrument subscribed to by the parties hereto.
17.7 This Agreement may be executed in several counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the
same instrument.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals and duly
executed this Agreement the day and year set forth below.
PHARMOS LTD. HERBAMED LTD.
By: GAD RIESENFELD By: AVRAHAM LANDA
------------------------------- ------------------------------------
Name: Gad Riesenfeld Name: Avraham Landa
Title: President and C.O.O Title: General Manager
of Pharmos Corporation
Date: 26/12/01 Date: 20/12/01
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