Exhibit (d)(9)
First Amended Umbrella Agreement
- "Agreement" -
between
Tutogen Medical GmbH
a German Corporation with offices at
Wetterkreuz 19 a, D-91058 Erlangen-Tennenlohe, Germany
- "Tutogen GmbH"-
and
Tutogen Medical, Inc.
a Florida Corporation with offices at
13709 Progress Boulevard, Alachua, Florida, 32615, USA
- "Tutogen Inc." -
Tutogen GmbH and Tutogen Inc. hereinafter referred to as "Tutogen"
one the one hand
and
on the other hand
Sulzer Spine-Tech, Inc.
a Delaware Corporation with offices at
7375 Bush Lake Road, Minneapolis, Minnesota, 55439-2027, USA
- "Spine-Tech" -
and
Sulzer Medica AG
a Swiss Corporation with offices at
Zuricher StraBe 12, 8401 Winterthur, Switzerland
- "Sulzer Medica" -
Spine-Tech and Sulzer Medical hereinafter referred to as "Sulzer"
Tutogen and Sulzer hereinafter referred to as "Parties"
Witnesseth:
WHEREAS, Tutogen and Sulzer intend to enter into various agreements as to
supplies of services in the U.S. and distribution of xenograft and donated
allograft tissue products in the rest of the world ("XUS"), and into a product
development and licence agreement and an option agreement;
WHEREAS, Sulzer and Tutogen want to establish a contractual order of the
aforementioned agreements;
NOW, THEREFORE the Parties hereby agree as follows:
1. Definitions
1.1 "U.S. Service Agreement" shall mean the First Amended US Service Agreement
entered into between Tutogen Inc. and Spine-Tech.
1.2 "International Distribution Agreement" shall mean the First Amended
International Distribution Agreement entered into between Tutogen GmbH and
Spine-Tech.
1.3 "Option Agreement" shall mean the First Amended Option Agreement entered
into between Tutogen Inc. and Sulzer Medica.
1.4 "Processed Tissue Development and Licence Agreement" shall mean the First
Amended Processed Tissue Development and License Agreement entered into
between Tutogen Medical and Spine-Tech.
1.5 "Agreements" shall mean all agreements defined in 1.1 to 1.4 and this First
Amended Umbrella Agreement ("Umbrella Agreement").
1.6 "Attachments" shall mean all schedules, attachments, future amendments,
whatsoever, related one or more of the Agreements.
1.7 "Contractual Documents" shall mean all Agreements and all Attachments.
2. Order of Precedence
2.1 The order of precedence between the Contractual Documents is listed
hereinafter. The Contractual Document with the lower figure shall
supersede, in the event of a conflict in interpretation, all Contractual
Documents with higher figures:
1. Umbrella Agreement
2. For US: US Service Agreement
For XUS: International Distribution Agreement
For US and XUS: Processed Tissue Development and Licence Agreement
(these three contractual documents shall have the same level of
precedence)
3. Option Agreement
2.2 All Attachments shall have the same level of precedence as the Agreement to
which the Attachment belongs. Within a particular Agreement the attachment
with the lower figure shall supersede all attachments with higher figures,
unless expressly stated otherwise.
3. Exchange Rate
Prices are calculated on the basis of USD. Payments are to be effected in
such a way that on the date on which a German bank receives the remittance,
the DM amount corresponding to the aforementioned exchange rate will be the
effective exchange rate.
4. Euro
Provided that payments are to be made in Euro as indicated in the
respective Agreement, the following applies: as long as the Deutsche Mark
continues as a "denomination" of the Euro, then as of the time of the
Euro's introduction, invoices and payments between the Parties shall only
be in the Euro. In each case the official conversion rate shall prevail.
The effectiveness of this contract will not be affected by the introduction
of the Euro.
5. Termination
5.1 Notwithstanding the provision set forth in sec. 5.2 of this Agreement, if a
party terminates one of the Agreements, the other party is entitled to
terminate all other Agreements, irrespective of the reason for the first
party to terminate the particular Agreement.
5.2 If one or more Agreements are terminated, each Party shall on first demand
of the other Party return to the other Party all documentation bearing
Confidential Information received by such Party from such other Party
during the term of the particular Agreement. Any unfinished business
activities pending at the time when the termination becomes effective shall
be carried out pursuant to the particular Agreement.
5.3 Section 5.1 of the Processed Tissue Development and License Agreement shall
remain valid also after termination of one or more of the Agreements.
6. Miscellaneous Provisions
6.1 Entire Agreement. All five (5) Agreements as defined in 1.5, all between
the Parties or their Affiliates, embody the final, complete, and exclusive
understanding between the Parties and supersedes all previous agreements,
understandings, or arrangements between the Parties with respect to its
subject matter. No modification or waiver of any terms or conditions
hereof, nor any representations or warranties will be of any force or
effect unless such modification or waiver is in writing and signed by an
authorized officer of the party against whom enforcement is sought.
6.2 Force Majeure. Neither party will be liable to the other for its failure
to perform any of its obligations under this Agreement only during any
period in which such performance is delayed because of, or rendered
impracticable or impossible due to, circumstances beyond its reasonable
control, including but not limited to, strike, fire, flood, earthquake,
windstorm, governmental acts or orders or restrictions (including acts of
regulatory authorities and changes in the regulatory scheme for a Product),
failure of suppliers, or any other reason to the extent that the failure
to perform is beyond the reasonable control and not
caused by the negligence or willful misconduct of the non-performing party,
provided that the party experiencing the delay promptly notifies the other
of the delay.
6.3 Notices. All notices concerning this Agreement will be written in the
English language and will be deemed to have been received (a) two days
after being properly sent by commercial overnight courier, or (b) one day
after being transmitted by confirmed facsimile, in each case addressed to
the address below:
If to Tutogen:
Tutogen Medical, Inc.
Wetterkreuz 19 A
D-91058 Erlangen-Tennerlohe
GERMANY
Attention: President and CEO
Telephone: 49 9131 7901-10
Facsimile: 49 9131 7901-12
With a copy to:
Dr. Dirk Lange
Foerster + Rutow
Irrerstr. 17-19
90403 Nurnberg
GERMANY
Telephone: 49 (911) 23 569 00
Facsimile: 49 (911) 23 569 11
If to Sulzer:
Sulzer Medica A.G.
Zurcherstrasse 12
8401 Winterthur
SWITZERLAND
Attention: President and CEO
Telephone: 41 52 262 53 50
Facsimile: 41 52 262 00 59
With a copy to:
Sulzer Medica USA Inc.
3 East Greenway Plaza, Suite 1600
Houston, Texas 77046
U.S.A.
Attention: General Counsel
Telephone: (713) 561-6365
Facsimile: (713) 561-6380
6.4 Governing Law. Recognizing that the laws within the United States and
international jurisdictions vary in their content and effect with respect
to similar subject matter, and that the Parties desire uniformity and
predictability in interpretation and enforcement of this Agreement and
related agreements with international scope made contemporaneously by the
Parties and their Affiliates, the Parties have agreed to the following
provisions regarding applicable law to govern this Agreement: All matters
affecting the interpretation, form, validity, and performance of this
Agreement shall be decided under the laws of Switzerland (without
application of the United Nations Convention on the International Sale of
Goods).
6.5 Partial Invalidity. In the event that any provision of this Agreement will
be unenforceable or invalid under any applicable law or be so held by
applicable court decision, such unenforceability or invalidity will not
render this Agreement unenforceable or invalid as a whole, and, in such
event, such provision will be changed and interpreted so as best to
accomplish the objectives of such unenforceable or invalid provision within
the limits of applicable law or applicable court decisions.
6.6 Independent Contractors. Each party will act as an independent contractor
under the terms of this Agreement. Neither party is, nor will it be deemed
to be, an employee, agent, partner, co-venturer, or legal representative of
the other for any purpose.
6.7 Nonassignability. Neither this Agreement nor any of the rights, interests,
duties, or obligations under this Agreement shall be assigned or delegated,
in whole or in part, by operation of law or otherwise by any party without
the prior written consent of the other party, except that either party may
assign this Agreement to an Affiliate of such party; provided that, in no
event shall a party assign to an Affiliate less than the entirety of its
rights and obligations under this Agreement. Any assignment made in
violation of this Section 6.7 will be void and of no effect. Subject to
this Section 6.7, this Agreement shall be
binding upon, inure to the benefit of, and be enforceable by and against
the parties and their Permitted Successors.
6.8 Compliance With Laws. Notwithstanding other provisions in this Agreement
regarding failure in compliance with laws, in performing this Agreement,
each Party shall comply with all applicable laws and government regulations
at all times, including but not limited to any applicable laws and
regulations of the United States regarding the export or re-export or
release of technology and technical data.
6.9 Arbitration.
(1) In the event the Parties are unable to resolve any dispute or conflict
arising from or relating to this Agreement within thirty (30) days
after it is formally presented for resolution by written notice, any
party may submit such conflict for resolution to the Chief Executive
Officers of the Parties.
(2) In the event the Chief Executive Officers of the Parties are unable to
resolve such conflict within thirty (30) days after having such
conflict submitted to them for resolution, the disputes shall be
finally settled under the Rules of Conciliation and Arbitration of the
International Chamber of Commerce in Paris (Rules) by three
arbitrators appointed in accordance with the Rules.
(3) The place of arbitration shall be Zurich. The procedural law of this
place shall apply where the Rules are silent.
(4) The arbitral award shall be substantiated in writing. The arbitral
tribunal shall decide on the matter of costs of the arbitration.
(5) The language to be used in the arbitral proceedings shall be English.
6.10 Confidentiality. The Parties acknowledge that by reason of their
relationship hereunder, each has had and will continue to have access to
certain information and materials concerning the other's business, plans,
customers, technology, and/or products that is considered by a party to be
confidential ("Confidential Information") and of substantial value to that
party, which value would be impaired if such information were disclosed to
third Parties. To the extent that such information is considered
confidential, the disclosing party will so indicate to the receiving
party, in the case of information in documentary or other tangible form,
by labeling it conspicuously as "CONFIDENTIAL" (or words of similar
import) and in the case of information conveyed verbally, by identifying
same in writing within ten days after the first verbal disclosure. Each
party agrees that it will not use in any way other than as expressly
authorized or contemplated under this Agreement, nor disclose to any third
party, any such Confidential Information revealed to it by the other
party, and will take commercially reasonable precautions (and will cause
its Affiliates to take commercially reasonable precautions) to protect the
confidentiality of such information and with no less restrictive
precautions than it takes to protect its own confidential information.
Each party will disclose Confidential Information only to those of its
employees who have a need to know such. If Confidential Information is
required to be disclosed in response to an order by a court or other
government body, or if otherwise required to be disclosed by law, or if
necessary to establish the rights of a party under this Agreement, the
receiving party shall use commercially reasonable efforts to provide the
disclosing party with advance notice of such required disclosure to give
the disclosing party sufficient time to seek a protective order or other
protective measures, if any are available, for such Confidential
Information. "Confidential Information" does not include information,
materials, technical data or know-how which: (i) is rightfully in the
possession of the receiving party at the time of disclosure as shown by
the receiving party's files and records immediately prior to the time of
disclosure; (ii) prior to or after the time of disclosure becomes part of
the public knowledge or literature, not as a result of any inaction or
action of the receiving party; (iii) is independently developed by a party
without the use of
any Confidential Information of the other parties; (iv) is obtained from
any third party who is authorized to disclose such data and information
without obligation of confidentiality, or (v) is approved for release by
the disclosing party.
6.11 Public Relations And Announcements. The Parties shall agree upon and issue
a press release upon the signing of this Agreement. No party shall issue a
press release or any other published statement that refers to another
party, its Affiliates or the other party's products without first
obtaining the agreement of such other party as to the form and content of
the statement, which approval shall be timely and not unreasonably
withheld.
In witness whereof, the Parties have each caused this Agreement to be signed and
delivered by their duly authorized representatives on the dates set forth below
in duplicate, each of which will be treated for all purposes as an original.
Tutogen Medical, Inc. Sulzer Spine-Tech, Inc.
Tutogen Medical GmbH
By: /s/ Manfred Kruger By: /s/ P. Richard Lunsford
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Manfred Kruger, President P. Richard Lunsford, President
Date September 29, 2000 Date: September 29, 2000
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Sulzer Medica A.G.
By: /s/ Andre P. Buchel
-------------------------------
Andre P. Buchel, CEO
By: /s/ Josef Ruegg
-------------------------------
Josef Ruegg
Date: September 29, 2000
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