exv10w2






EXHIBIT 10.2




     Portions of this exhibit have been omitted pursuant to a request for confidential treatment.
The omitted portions, marked by [***], have been separately filed with the Securities
and Exchange Commission.



LICENSE AGREEMENT

BETWEEN

PROTALIX BIOTHERAPEUTICS LTD.

AND

VIRGINIA TECH INTELLECTUAL PROPERTIES, INC.

FOR

CASE NO. VTIP 97 012

































 








Execution Copy




LICENSE AGREEMENT



 This agreement (“Agreement”) is made by and between Protalix Biotherapeutics LTD., a
corporation having an address at 2 Snunit Street, Science Park, POB 455, Karmiel 20100,
Israel (“LICENSEE”) and Virginia Tech Intellectual Properties, Inc., a non-profit
organization having an address at 1872 Pratt Drive, Suite 1625, Blacksburg, Virginia
24060 (“VTIP”).



 This Agreement is effective on the date of the last signature (“Effective Date”).




RECITALS



WHEREAS, the inventions disclosed in VTIP Disclosure No. 97.012 and titled “[***]” (“Invention”),
were made in the course of research at Virginia Tech by Dr. Carol Cramer (hereinafter the
“Inventors”) and are covered by Patent Rights as defined below;



WHEREAS, the Inventors were employees of Virginia Tech, and they were obligated to assign all of
their right, title and interest in the Invention to Virginia Tech;



WHEREAS, Virginia Tech has assigned all of their right, title and interest in the Invention to
VTIP;



WHEREAS, VTIP is desirous that the Invention be developed and utilized to the fullest possible
extent so that its benefits can be enjoyed by the general public;



WHEREAS, LICENSEE is desirous of obtaining certain rights from VTIP for commercial development,
use, and sale of the Invention, and VTIP is willing to grant such rights; and



WHEREAS, LICENSEE understands that VTIP may publish or otherwise disseminate information concerning
the Invention (as defined below) at any time and that LICENSEE is paying consideration thereunder
for its access to the Invention not continued secrecy therein.



NOW, THEREFORE, the parties agree:




ARTICLE 1. DEFINITIONS



The terms, as defined herein, shall have the same meanings in both their singular and plural
forms.





1.1 “Affiliate” means any corporation or other business entity: (i) in which
LICENSEE owns or controls, directly or indirectly, at least fifty percent (50%) of
the outstanding stock or other voting rights entitled to elect directors, or (ii)
which owns or controls directly or indirectly by at least fifty percent (50%) of
the outstanding stock or other voting rights entitled to elect directors of
LICENSEE; but in any country where the local law does not permit foreign equity
participation of at least fifty percent (50%), then an “Affiliate” includes any
company in which LICENSEE owns or controls or is owned or controlled by, directly
or indirectly, the maximum percentage of outstanding stock or voting rights
permitted by local law.




1.2 “Combination Product” means any product which is a Licensed Product and
contains other product(s) or product component(s): (i) the sale, use or import of
which by itself does not constitute an infringement of a Valid Claim within Patent
Rights; (ii) can be sold separately by LICENSEE, its Sublicensee or an Affiliate;
and (iii) enhances the market price of the final product(s) sold, used or imported
by LICENSEE, its Sublicensee, or an Affiliate.




1.3 “Field” means all uses.





 




			
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1.4 “Licensed Method” means any method that is covered by Patent Rights the
use of which would constitute, but for the license granted to LICENSEE under this
Agreement, an infringement of any Valid Claim within Patent Rights.




1.5 “Licensed Product” means any composition or product that is covered by a Valid
Claim within Patent Rights, or that is produced by a Licensed Method, the
manufacture, use, sale, offer for sale, or importation of which would constitute,
but for the license granted to LICENSEE by VTIP herein, an infringement of any
Valid Claim within the Patent Rights: Whether a product is a “Licensed Product”
shall be determined on a country-by-country and product-by-product basis.




1.6 “NDA” means an application for FDA approval to market a new drug.




1.7 “Net Sales” means the total of the gross invoice prices of Licensed Products
sold by LICENSEE, its Sublicensees, or Affiliates, or any combination thereof,
less the sum of the following actual and customary deductions where applicable
and separately listed: (a) cash, trade, or quantity discounts; (b) chargebacks and
rebates, including without limitation, chargebacks payable to wholesalers for
goods sold under customer contracts and rebates payable in connection with
government programs or other third party payors; (c ) sales, use, tariff,
import/export duties or other excise taxes imposed on particular sales (except for
value-added and income taxes imposed on the sales of Product in foreign
countries); (d) wholesale service and transportation charges; and (e) credits to
customers because of rejections or returns. For purposes of calculating Net
Sales, transfers by LICENSEE to a Sublicensee or an Affiliate of Licensed Product
under this Agreement for (i) end use (but not resale) by the Sublicensee or
Affiliate shall be treated as sales by LICENSEE at list price of LICENSEE, or (ii)
resale by a Sublicensee or an Affiliate shall generate a royalty based upon the
Sublicensee’s or Affiliate’s Net Sales price as calculated above. For Licensed
Products which are Combination Products, the Net Sales for such Combination
Products shall be adjusted by multiplying the actual Net Sales by the fraction
A/(A+B) where A is the invoice price of the Licensed Product, if sold separately,
and B is the invoiced price of the other product or product component if sold
separately. If the other product or product component is not sold separately,
then the actual Net Sales shall be adjusted by multiplying the actual Net Sales by
the fraction A/C where A is the price of the Licensed Product if sold separately
and C is the invoice price of the Combination Product. If neither of the
foregoing apply, then the Net Sales of the Combination Product shall be determined
by the Parties in good faith.




1.8 “Patent Costs” means all out-of-pocket expenses for the preparation, filing,
prosecution, and maintenance of all United States and foreign patents included in
Patent Rights. Patent Costs shall also include reasonable out-of-pocket expenses
for patentability opinions, inventorship determination, preparation and
prosecution of patent application, re-examination, re-issue, interference, and
opposition activities related to patents or applications in Patent Rights.




1.9 “Patent Rights” means any of the following: the US patent number [***]
disclosing and claiming the Invention, filed by Inventors and assigned to VTIP;
and continuing applications thereof including divisions, substitutions, and
continuations-in-part (but only to extent the claims thereof are enabled by
disclosure of the parent application); any patents issuing on said applications
including reissues, reexaminations and extensions; and any corresponding foreign
applications or patents.





 




			
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1.10 “Sublicense Income” means upfront payments and milestone payments paid
by a Sublicensee to LICENSEE in consideration of the grant of a sublicense. For
avoidance of doubt, “Sublicense Income” shall not include amounts paid as earned
royalties (that is, royalties based on product sales), funded research payments,
payments for the purchase by the Sublicensee of equity of LICENSEE or amounts
paid in reimbursement of expenses incurred by LICENSEE in the research or
development of a Licensed product.




1.11 “Sublicensee” means a third party to whom LICENSEE has granted a sublicense
of the right to practice the Patent Rights.




1.12 “Territory” means world-wide.




1.13 “Term” means the period of time beginning on the Effective Date and ending on
the earlier of (i) the expiration date of the longest-lived Patent Rights; or (ii)
the twenty-first (21st) anniversary of the first commercial sale of
Licensed Product.




1.14 “Valid Claim” means a claim within the Patent Rights that has not been
pending for in excess of seven (7) years, has not expired, been abandoned or
finally determined to be unenforceable or invalid by a court or other
administrative agency with competent jurisdiction.



ARTICLE 2. GRANTS



2.1 License. Subject to the limitations set forth in this Agreement, VTIP hereby grants to
LICENSEE, and LICENSEE hereby accepts, a license under Patent Rights to make, have made, use, sell,
offer for sale, and import Licensed Products and to practice Licensed Methods, in the Field within
the Territory and during the Term.



The license granted herein is non-exclusive and VTIP may grant to third parties further licenses
under Patent Rights in the Field, within the Territory and during the Term.



2.2 Right to Sublicense. (a) LICENSEE may grant a sublicense to a Sublicensee only as part of an
agreement pursuant to which LICENSEE grants rights to such Sublicensee to other intellectual
property rights owned or controlled by LICENSEE.



(b) With respect to each sublicense granted pursuant to Paragraph 2.2 (a), LICENSEE shall:



(1) not receive, or agree to receive, real or personal property in lieu of cash as consideration
from the Sublicensee without the express written consent of VTIP;



(2) to the extent applicable, include all of the rights of and obligations due to VTIP and
contained in this Agreement;



(3) promptly provide VTIP with a copy of each sublicense issued; and



(4) provide a report of all amounts received from the Sublicensee and a report of all Net Sales by
the Sublicensee during the Term.



2.3 Reservation of Rights. VTIP reserves the right to:



(a) use the Invention, and Patent Rights for humanitarian, educational and research purposes;



(b) publish or otherwise disseminate any information about the Invention at any time, except for
Confidential Information of LICENSEE, any Sublicensee or their Affiliates conveyed to VTIP or its
Affiliates hereunder; and




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(c) allow other non-profit institutions to use Invention and Patent Rights for humanitarian,
educational and non-commercial research purposes in their facilities.




ARTICLE 3. CONSIDERATIONS



3.1 Fees and Royalties. The parties hereto understand that individually, the fees and royalties
payable by LICENSEE to VTIP under this Agreement are partial considerations for the license granted
herein to LICENSEE Patent Rights. LICENSEE shall pay VTIP:



(a) a license issue fee of [***] within ten (10) days after the Effective Date;



(b) milestone payments in the amounts payable according to the following schedule or events:



Amount Date or Event



[***]



(c) an earned royalty equal to [***] on Net Sales of Licensed Products by LICENSEE, its
Sublicensees and/or their Affiliate(s); and



(d) [***] of all Sublicense Income received by LICENSEE from its Sublicensees;



(e) beginning with the calendar year during which the first commercial sale of the first
License Product by LICENSEE, its Sublicensee, or an Affiliate occurs, if the total earned
royalties paid by LICENSEE under Paragraphs 3.1(c ) and (d) to VTIP in any such year
cumulatively amounts to less than [***] (“minimum annual royalty”), then LICENSEE shall
pay to VTIP, on or before February 28 of the year following such year, an amount equal to
[***] minus the total amounts paid by LICENSEE for such preceding year under Paragraphs
3.1(c) and 3.1 (d); provided, however, that for the year during which the first
commercial sale of the first Licensed Product occurs, the amount of minimum annual royalty
payable shall be prorated for the number of months remaining in that calendar year.



For those Licensed Products that are subject to royalties payable to a Third Party, the
royalties due hereunder shall be reduced by [***] for every one percent (1%) of royalty due to
a Third Party, but in no event shall royalties due hereunder be reduced by more than [***] of
the applicable royalty rate payable hereunder for such Licensed Products.



All fees and royalty payments specified in Section 3.1 above shall be paid by LICENSEE pursuant
to Paragraph 4.3 and shall be delivered by LICENSEE to VTIP as noted in Paragraph 10.1.



3.2 Due Diligence.



LICENSEE shall use commercially reasonable efforts, alone or through its Sublicensees or their
Affiliates, to development, manufacture and sell Licensed Products.






 




			
	[***]	 	Redacted pursuant to confidential treatment request.





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ARTICLE 4. REPORTS, RECORDS AND PAYMENTS



4.1 Reports.



(a) Progress Reports.



(1) Beginning March 1, 2005 and ending on the date of first commercial sale of a Licensed
Product in the United States, LICENSEE shall submit to VTIP an annual progress report providing
an overview of LICENSEE’s (and its Affiliate’s and Sublicensee’s) efforts to develop a Licensed
Product.



(2) LICENSEE shall also report to VTIP, in its immediately subsequent progress report, the date
of first commercial sale of a Licensed Product in each country.



(b) Royalty Reports. After the first commercial sale of a Licensed Product anywhere in the
world, LICENSEE shall submit to VTIP [***] royalty reports on or before each [***] of each
year. Each royalty report shall cover LICENSEE’s (and each Affiliate’s and Sublicensee’s)
most recently completed [***] and shall show:



(1) the total invoiced sales and the Net Sales during the most recently completed [***] and the
royalties, in US dollars, payable with respect thereto;



(2) the number of each type of Licensed Product sold;



(3) Sublicense Income received during the most recently completed [***] in US dollars, and the
amount payable hereunder with respect thereto;



(4) the method used to calculate the royalties; and



(5) the exchange rates used (if applicable).



If no sale of Licensed Products has been made and no Sublicense Income has been received by
LICENSEE during any reporting period, LICENSEE shall so report.



4.2 Records & Audits.



(a) LICENSEE shall keep, and shall require its Affiliates and Sublicensees to keep, accurate
and correct records of all Licensed Products manufactured, used, and sold, and Sublicense
Income received under this Agreement. Such records shall be retained by LICENSEE for at least
five (5) years following a given reporting period.



(b) All records maintained under Section 4.2(a) shall be available during normal business
hours for inspection at the expense of VTIP by VTIP’s Internal Audit Department or by a
Certified Public Accountant selected by VTIP and in compliance with the other terms of this
Agreement for the sole purpose of verifying reports and payments. Such inspector shall not
disclose to VTIP any information other than information relating to the accuracy of reports and
payments made under this Agreement or other compliance issues. In the event that such
inspection shows an under reporting and underpayment in excess of [***] for any twelve (12)
month period, then LICENSEE shall pay the cost of the audit as well as any additional sum that
would have been payable to VTIP had the LICENSEE reported correctly. For underpayment not in
excess of [***] for any twelve (12) month period, LICENSEE shall pay the difference within
[***] days without inspection cost.






 




			
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4.3 Payments.



(a) All fees and royalties due VTIP shall be paid in United States dollars and all checks
shall be made payable to VTIP. When Licensed Products are sold in currencies other than United
States dollars, LICENSEE shall first determine the earned royalty in the currency of the
country in which Licensed Products were sold and then convert the amount into equivalent United
States funds, using the exchange rate quoted in the Wall Street Journal on the last business
day of the applicable reporting period.



(b) Royalty Payments.



(1) Royalties shall accrue when Licensed Products are invoiced, or if not invoiced, when
delivered to a third party or Affiliate.



(2) LICENSEE shall pay earned royalties [***] on or before [***] of each [***]. Each such
payment shall be for earned royalties accrued within the most recently completed calendar
quarter.



(3) Royalties earned on sales occurring or under sublicense granted pursuant to this Agreement
In any country outside the United States shall not be reduced by LICENSEE for any taxes, fees,
or other charges imposed by the government of such country on the payment of royalty income,
except that all payments made by LICENSEE in fulfillment of VTIP tax liability in any
particular country may be credited against earned royalties or fees due VTIP for that country.
LICENSEE shall pay all bank charges resulting from the transfer of such royalty payments.



(4) If at any time legal restrictions prevent the prompt remittance of part or all royalties
by LICENSEE with respect to any country where a Licensed Product is sold or a sublicense is
granted pursuant to this Agreement, LICENSEE shall convert the amount owed to VTIP into US
currency and shall pay VTIP directly from its US sources of fund for as long as the legal
restrictions apply.



(c) Late Payments. In the event royalty, reimbursement and/or fee payments are not received
by VTIP when due, LICENSEE shall pay to VTIP interest charges at a rate of [***] per year.
Such interest shall be calculated from the date payment was due until actually received by
VTIP.




ARTICLE 5. PATENT MATTERS



5.1 Patent Infringement.



(a) If LICENSEE learns of any substantial infringement of Patent Rights, LICENSEE shall so
inform VTIP and provide VTIP with reasonable evidence of the infringement. Neither party shall
notify a third party of the infringement of Patent Rights without the consent of the other
party. Both parties shall use reasonable efforts and cooperation to terminate infringement
without litigation.



(b) LICENSEE may request VTIP to take legal action against such third party for the
infringement of Patent Rights. Such request shall be made in writing and shall include
reasonable evidence of such infringement and damages to LICENSEE. If the infringing activity
has not abated [***] following LICENSEE’s request, VTIP shall elect to or not to commence suit
on its own account .VTIP shall give notice of its election in writing to LICENSEE by the end of
the [***] after receiving notice of such request from LICENSEE. LICENSEE may thereafter bring
suit for patent infringement [***], if and only if VTIP elects not to commence suit and the
infringement occurred in a jurisdiction where LICENSEE has an exclusive license under this
Agreement. If LICENSEE elects to bring suit, VTIP may join that suit [***].



(c) [***].






 




			
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(d) [***].




5.2 Patent Marking. LICENSEE shall mark all Licensed Products, or their containers, in
accordance with the applicable patent marking laws.




ARTICLE 6. GOVERNMENTAL MATTERS




6.1 Governmental 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 agency,
LICENSEE shall assume all legal obligations to do so. LICENSEE shall notify VTIP if it becomes
aware that this Agreement is subject to a United States or foreign government reporting or approval
requirement. [***]




6.2 Export Control Laws. LICENSEE shall observe all applicable United States and foreign laws with
respect to the transfer of Licensed Products and related technical data to foreign countries,
including, without limitation, the International Traffic in Arms Regulations and the Export
Administration Regulations.




6.3 Preference for United States Industry. If LICENSEE sells a Licensed Product or Combination
Product in the US, LICENSEE shall manufacture said product substantially in the US to the extent
required by law.




ARTICLE 7. TERMINATION OF THE AGREEMENT




7.1 Termination by VTIP. If LICENSEE fails to perform or violates any material term of this
Agreement, then VTIP may give written notice of default (“Notice of Default”) to LICENSEE. If
LICENSEE fails to cure the fault within [***] of the Notice of Default (or up to [***] if the
breach is not cured within [***], LICENSEE is making good faith efforts to achieve a cure and
such extension will not increase damages suffered by VTIP), VTIP may terminate this Agreement
and the license granted herein by a second written notice (“Notice of Termination”) to
LICENSEE. If a Notice of Termination is sent to LICENSEE, this Agreement shall automatically
terminate on the effective date of that notice. Termination shall not relieve LICENSEE of its
obligation to pay any fees owed at the time of termination and shall not impair any accrued
right of VTIP.




7.2 Termination by Licensee.




(a) LICENSEE shall have the right at any time and for any reason to terminate this Agreement
upon a [***] written notice to VTIP. Said notice shall state LICENSEE’s reason for terminating
this Agreement.




(b) Any termination under Paragraph 7.2(a) shall not relieve LICENSEE of any obligation or
liability accrued under this Agreement prior to termination or rescind any payment made to VTIP
or action by LICENSEE prior to the time termination becomes effective. Termination shall not
effect in any manner any rights of VTIP arising under this Agreement prior to termination.




7.3 Survival on Termination. The following Paragraphs and Articles shall survive the
termination of this Agreement:




(a) Article 4 (REPORTS, RECORDS AND PAYMENTS);




(b) Paragraph 7.4 (Disposition of Licensed Products on Hand);




(c) Paragraph 8.2 (Indemnification);




(d) Article 9 (USE OF NAMES AND TRADEMARKS);






 




			
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(e) Paragraph 10.2 hereof (Secrecy); and




(f) Paragraph 10.5 (Failure to Perform).




7.4 Disposition of Licensed Products on Hand. Upon termination of this Agreement, LICENSEE
may dispose of all previously made or partially made Licensed Product within a period of one
hundred and twenty (120) days of the effective date of such termination provided that the sale
of such Licensed Product by LICENSEE, its Sublicensees, or Affiliates shall be subject to the
terms of this Agreement, including but not limited to the rendering of reports and payment of
royalties required under this Agreement.




ARTICLE 8. LIMITED WARRANTY AND INDEMNIFICATION




8.1 Limited Warranty.




(a) VTIP warrants that it has the lawful right to grant this license, that the Patent Rights
have been prepared, filed and prosecuted in good faith and that no third party has asserted a
claim against VTIP that the Patent Rights are invalid or unenforceable.




(b) The license granted herein is provided “AS IS” and without WARRANTY OF MERCHANTABILITY or
WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE or any other warranty, express or implied. VTIP
makes no representation or warranty that the Licensed Product, Licensed Method or the use of
Patent Rights will not infringe any other patent or other proprietary rights.




(c) In no event shall either Party be liable for any incidental, special or consequential
damages hereunder.




(d) Nothing in this Agreement shall be construed as:




(1) a warranty or representation by VTIP as to the validity or scope of any Patent Rights;




(2) a warranty or representation that anything made, used, sold or otherwise disposed of under
any license granted in this Agreement is or shall be free from infringement of patents of third
parties;




(3) an obligation to bring or prosecute actions or suits against third parties for patent
infringement except as provided in Paragraph 5.1 hereof;




(4) conferring by implication, estoppel or otherwise any license or rights under any patents
of VTIP other than Patent Rights as defined in this Agreement, regardless of whether those
patents are dominant or subordinate to Patent Rights; (VTIP is not aware of any other Patent
Rights that are necessary to the exercise of Patent Rights as defined in this Agreement, which
Patent Rights have not been offered as of the execution of this Agreement); or




(5) an obligation to furnish any know-how not provided in Patent Rights.




8.2 Indemnification.




(a) LICENSEE shall indemnify, hold harmless and defend VTIP, its officers, employees, and
agents; the sponsors of the research that led to the Invention; and the Inventors of the
patents and patent applications in Patent Rights and their employers against any and all
claims, suits, losses, damage, costs, fees, and expenses resulting from or arising out of
exercise of this license or any sublicense. This indemnification shall include, but not be
limited to, any product liability. The foregoing indemnity obligation shall not apply to the
extent a claim, suit, loss, damage, cost, fee, or expense arises out of the negligence of an
indemnitee, or a breach of this Agreement by VTIP or one if its Affiliates.




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(b) LICENSEE, at its sole cost and expense, shall insure its activities in connection with the
work under this Agreement and obtain, keep in force and maintain insurance or an equivalent
program of self insurance as follows:




(1) comprehensive or commercial general liability insurance (contractual liability included)
with limits of at least: (i) each occurrence, $1,000,000; (ii) products/completed operations
aggregate, $1,000,000; (iii) personal and advertising injury, $1,000,000; and (iv) general
aggregate (commercial form only), $1,000,000; and




(2) as between the parties, the coverage and limits referred to above shall not in any way
limit the liability of LICENSEE.




(c) LICENSEE shall furnish VTIP with certificates of insurance showing compliance with all
requirements. Such certificates shall: (i) provide for thirty (30) day advance written notice
to VTIP of any modification; (ii) indicate that VTIP has been endorsed as an additional insured
under the coverage referred to above; and (iii) include a provision that the coverage shall be
primary and shall not participate with nor shall be excess over any valid and collectable
insurance or program of self-insurance carried or maintained by VTIP.




(d ) VTIP shall notify LICENSEE in writing of any claim or suit brought against VTIP in
respect of which VTIP intends to invoke the provisions of this Article. LICENSEE shall
control the defense of any claims for which it is providing indemnification hereunder and shall
keep VTIP informed on a current basis of its defense of any such claims.




ARTICLE 9. USE OF NAMES AND TRADEMARKS




9.1 Nothing contained in this Agreement confers any right to use in advertising, publicity,
or other promotional activities any name, trade name, trademark, or other designation of
either party hereto (including contraction, abbreviation or simulation of any of the
foregoing). Unless required by law, the use by LICENSEE of the name, Virginia Tech
Intellectual Properties, Inc. is prohibited, without the express written consent of VTIP.




9.2 VTIP may disclose to the Inventors the terms and conditions of this Agreement upon their
request. If such disclosure is made, VTIP shall request the Inventors not disclose such terms
and conditions to others.




9.3 VTIP may acknowledge the existence of this Agreement and the extent of the grant in
Article 2 to third parties, but VTIP shall not disclose the financial terms of this Agreement
to third parties, except where VTIP is required by law to do so.




ARTICLE 10. MISCELLANEOUS PROVISIONS




10.1 Correspondence. Any notice or payment required to be given to either party under this
Agreement shall be deemed to have been properly given and effective:




(a) on the date of delivery if delivered in person, or




(b) five (5) days after mailing if mailed by first-class or certified mail, postage paid, to
the respective addresses given below, or to such other address as is designated by written
notice given to the other party.




If sent to LICENSEE:




Protalix Biotherapeutics LTD.

2 Snunit Street




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Science Park

POB 455

Karmiel 20100, Israel

Attention: President




If sent to VTIP:




Virginia Tech Intellectual Properties, Inc.

1872 Pratt Drive, Suite 1625

Blacksburg, VA 24060

Attention: Keith Jones

Director of Commercialization  —  Life Sciences




10.2 Secrecy.




(a) “Confidential Information” shall mean confidential information disclosed by one Party (the
“Disclosing Party”) to the other Party (the “Recipient”) during the term of this Agreement,
which if disclosed in writing shall be marked “Confidential”, or if first disclosed otherwise,
shall within thirty (30) days of such disclosure be reduced to writing by the Disclosing Party
and sent to the Recipient:




(b) Recipient shall:




(1) use the Confidential Information for the sole purpose of performing under the terms of this
Agreement;




(2) safeguard Confidential Information against disclosure to others with the same degree of
care as it exercises with its own data of a similar nature;




(3) not disclose Confidential Information to others (except to its employees, agents or
consultants who are bound by a like obligation of confidentiality) without the express written
permission of the Disclosing Party, except that Recipient shall not be prevented from using or
disclosing any of the Confidential Information that:




(i) Recipient can demonstrate by written records was previously know to it;




(ii) is now, or becomes in the future, public knowledge other than through acts or omissions
of Recipient; or




(iii) is lawfully obtained by Recipient from sources independent of Disclosing Party; and




(c) The secrecy obligations of Recipient with respect to Confidential Information shall
continue for a period ending five (5) years from the termination date of this Agreement.




10.3 Assignability. This Agreement may be assigned by VTIP. This Agreement may not be
assigned by LICENSEE except in connection with the sale or other transfer of LICENSEE’s entire
business or that part of LICENSEE’s business to which the license granted hereby relates.
LICENSEE shall give VTIP thirty (30) days’ prior notice of such assignment or transfer. Any
other assignment of this License Agreement without the prior written consent of VTIP shall be
void. Such written consent shall not be unreasonably withheld or delayed.




10.4 No Waiver. No waiver by either party of any breach or default of any covenant or
agreement set forth in this Agreement shall be deemed a waiver as to any subsequent and/or
similar breach or default.




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10.5 Failure to Perform. In the event of a failure of performance due under this Agreement
and if it becomes necessary for either party to undertake legal action against the other on
account thereof, then the prevailing party shall be entitled to reasonable attorney’s fees in
addition to costs and necessary disbursements.




10.6 Governing Laws. The scope and validity of any patent or patent application subject to
this Agreement shall be governed by the applicable laws of the country of the patent or patent
application.




10.7 Force Majeure. A party to this Agreement may be excused from any performance required
herein if such performance is rendered impossible or unfeasible due to any catastrophe or other
major event beyond its reasonable control, including, without limitation, war, riot, and
insurrection; laws, proclamations, edicts, ordinances, or regulations; strikes, lockouts, or
other serious labor disputes; and floods, fires, explosions, or other natural disasters. When
such events have abated, the non-performing party’s obligations herein shall resume.




10.8 Headings. The headings of the several sections are inserted for convenience of reference
only and are not intended to be a part of or to affect the meaning or interpretation of this
Agreement.




10.9 Entire Agreement. The Agreement embodies the entire understanding of the parties and
supersedes all previous communications, representations or understandings, either oral or
written, between the parties relating to the subject matter hereof.




10.10 Amendments. No amendment or modification of this Agreement shall be valid or binding on
the parties unless made in writing and signed on behalf of each party.




10.11 Severability. In the event that any of the provisions contained in this Agreement is
held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality or
un-enforceability shall not affect any other provisions of this Agreement, and this Agreement
shall be construed as if the invalid, illegal, or unenforceable provisions had never been
contained in it.




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IN WITNESS WHEREOF, both VTIP and LICENSEE have executed this Agreement, in duplicate
originals, by their respective and duly authorized officers on the day and year written.




					
	 	
Protalix Biotherapeutics LTD.:

 	 
	 	By:  	/s/ David Aviezer
 	 
	 	 	Name:  	David Aviezer 	 
	 	 	Title:  	
CEO 	 
	 	 	

Date: 25/1/05 	 
	 
	 	ATTEST:

 	 
	 	By:  	/s/ Ophir Shahaf
 	 
	 	 	Name:  	Ophir Shahaf 	 
	 	 	
Date: 25/1/05 	 
	 
	 	VTIP:

 	 
	 	By:  	/s/ Brad Fenwick
 	 
	 	 	Name:  	Brad Fenwick 	 
	 	 	Title:  	President
 	 
	 	 	

Date: 1/27/05 	 
	 
	 	ATTEST:

 	 
	 	By:  	/s/ Debra S. Lucas
 	 
	 	 	Name:  	Debra S. Lucas 	 
	 	 	
Date: 1/27/05 	 
	 




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