TECHNOLOGY DEVELOPMENT AGREEMENT
No. 206-01.OPT
THIS AGREEMENT, made this 27th day of May, 1997 (the "EFFECTIVE DATE"), is by
and between the ARIZONA BOARD OF REGENTS, a body corporate of the State of
Arizona, acting on behalf of and for ARIZONA STATE UNIVERSITY of Tempe, Arizona
("ASU") and OXiGENE Europe AB, a corporation organized under the laws of Sweden
having its principal place of business located at IDEON Research Park,
Scheelevagen 00, X-000 00 Xxxx, XXXXXX ("OPTIONEE").
RECITALS
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A. Certain inventions, generally characterized as a family of Anti-cancer
drugs known under the name "Combretastatins" and collectively referred
to as the "TECHNOLOGY", were made in the course of research at ASU by
G. Xxxxxx Xxxxxx, and others and are covered by ASU's Patent Rights as
defined below.
B. ASU owns certain patent applications and patents covering the
TECHNOLOGY as set forth in Paragraph 1.1 (ASU's PATENT RIGHTS), and ASU
may file one or more additional applications claiming the TECHNOLOGY or
novel adaptations or modifications of it.
C. The National Cancer Institute sponsored part of the development of the
TECHNOLOGY and, as a consequence, this Agreement is subject to
overriding obligations to the Federal Government as set forth in 35
U.S.C. 200-212 and applicable governmental implementing regulations.
D. ASU is desirous that the TECHNOLOGY be developed and utilized to the
fullest extent so that the benefits can be enjoyed by the general
public.
E. The OPTIONEE is desirous of obtaining certain rights from ASU for the
commercial development, use and sale of products or services covered by
ASU's PATENT RIGHTS, and ASU is willing to grant such rights;
AGREEMENT
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1. DEFINITIONS
1.1. "ASU's PATENT RIGHTS" shall mean patent rights to any subject
matter claimed in or covered by any of the following:
Under ASU Case No. 206:
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U.S. Patent Nos. 5,409,953 & 5,569,786 entitled "Isolation,
Structural Elucidation and Synthesis of Novel Antineoplastic
Substances Denominated "Combretastatins""
Under ASU Case No. 224:
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U.S. Patent No. 4,996,237 entitled "Combretastatin A-4"
Under ASU Case No. 516:
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U.S. Patent No. 4,940,726 entitled "Cell Growth Inhibitory
Macrocyclic Lactones Denominated Combretastatin D-1 and
Combretastatin D-2"
Under ASU Case No. 700:
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U.S. Patent No. 5,561,122 entitled "Combretastatin A-4
Prodrug"
and continuing applications thereof including all additions,
renewals, divisions, substitutions, continuations and
continuation-in-part applications; any patents issuing on said
application or continuing applications including reissues; and
any corresponding foreign applications or patents.
1.2. "LICENSED PRODUCT" shall mean any material, composition,
composition of matter, compound, device or embodiment the use
of which would constitute, but for any license granted to the
OPTIONEE, pursuant to a LICENSE AGREEMENT, if entered, an
infringement of any pending or issued claim within ASU's
PATENT RIGHTS as defined herein.
1.3. "LICENSED METHOD" shall mean any method, procedure, process or
other subject matter whose use or practice would constitute,
but for any license granted to OPTIONEE, pursuant to a LICENSE
AGREEMENT, if entered, an infringement of any claim in the ASU
PATENT RIGHTS as defined herein.
1.4. "KNOW-HOW" shall mean all technical data, information,
materials and technical expertise that relates to TECHNOLOGY,
including without limitation, chemical and physical data and
techniques, clinical data, medical uses, product forms,
formulations, and specifications.
1.5. "NET SALES" means the total of the gross invoice prices of
LICENSED PRODUCTS sold by the OPTIONEE, if the parties enter a
LICENSE AGREEMENT, an AFFILIATE or a sublicensee, if
applicable, less the sum of the following actual and customary
deductions where applicable: cash, trade or quantity
discounts; sales, use, tariff, import/export duties or other
excise taxes imposed on or levied with respect to any sale of
LICENSED PRODUCTS; transportation charges and allowances or
credits to customers because of rejections or returns.
Transfers to an AFFILIATE or sublicensee for end use by such
AFFILIATE or sublicensee if applicable shall be treated as NET
SALES.
1.6. "AFFILIATE" means any corporation or other business entity
that, directly or indirectly, controls, is controlled by or is
under common control with OPTIONEE provided, however, that in
any country where the local law shall not permit foreign
equity participation of at least 50%, then an "AFFILIATE"
shall include any company in which the OPTIONEE shall own or
control, directly or indirectly, the maximum percentage of
such outstanding stock or voting rights permitted by local
law.
1.7. "INVENTOR" shall, for the purposes of this Agreement, mean Xx.
Xxxxxx X. Xxxxxx and others whose names appear on the patents
or patent applications described under Section 1.1.
1.8. "TERM" shall mean that period beginning on the EFFECTIVE DATE
and ending on the date that is twenty four months from the
EFFECTIVE DATE.
1.9. "LICENSE AGREEMENT" means the license agreement between ASU
and OPTIONEE that shall result if OPTIONEE exercises its
option pursuant to Article 4 and the parties are successful in
negotiating pursuant to Article 6.
1.10. "TECHNOLOGY" means certain inventions, generally characterized
as a family of anti-cancer drugs known under the name
"Combretastatins", which were made in the course of research
at ASU by Drs. G. Xxxxxx Xxxxxx, et. al. and are covered by
ASU's Patent Rights as defined herein.
2. SCOPE OF GRANT AND DURATION
2.1. On the terms and conditions set forth in this Agreement, ASU
hereby grants to OPTIONEE an exclusive option to acquire an
exclusive world-wide license to ASU's PATENT RIGHTS to make,
have made, market, sell, sub-license and otherwise use
LICENSED PRODUCTS and to practice the LICENSED METHOD.
2.2. Said option shall have a duration for the TERM specified in
Section 1.10.
2.3. No license shall be deemed to have been granted unless and
until OPTIONEE exercises its option and a LICENSE AGREEMENT is
executed and delivered by OPTIONEE and ASU as contemplated by
this Agreement.
2.4. Under this Agreement, OPTIONEE, in its own name, shall have
the right to file an Investigational New Drug Application
(IND) with the United States Food & Drug Administration (US
FDA) with respect to clinical testing of the TECHNOLOGY.
3. OPTION FEE
As consideration for this Agreement, OPTIONEE agrees to pay to ASU an
Option Fee of * payable upon execution of this Agreement. This fee is
not refundable, but if the OPTIONEE exercises its option, the OPTIONEE
shall have the right, in its sole and absolute discretion, to credit
this Option Fee *.
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* Omitted pursuant to request for confidential treatment.
4. TECHNICAL ASSISTANCE & TECHNICAL ASSISTANCE FEE
4.1. ASU shall:
4.1.1. Permit representatives from OPTIONEE (and, if the
parties enter a LICENSE AGREEMENT, representatives of
a person or entity to which OPTIONEE has granted a
sub-license in accordance with the LICENSE AGREEMENT)
to visit the facilities of ASU for the purpose of
personally observing the practice and testing of
TECHNOLOGY or the production of LICENSED PRODUCT, and
4.1.2. Arrange for its representatives to visit such
facilities as may be designated by OPTIONEE in order
to provide to OPTIONEE (or, if the parties enter a
LICENSE AGREEMENT, any person or entity to which
OPTIONEE has granted a sub-license in accordance with
the LICENSE AGREEMENT) any technical assistance and
advice as OPTIONEE (or, if the parties enter a
LICENSE AGREEMENT, any person or entity to which
OPTIONEE has granted a sub-license in accordance with
the LICENSE AGREEMENT) may reasonably require in
connection with the production, packaging,
inspecting, and testing of the TECHNOLOGY and the
LICENSED PRODUCTS or the LICENSED METHODS.
4.2. OPTIONEE shall give ASU reasonable prior notice of any
intended visits or required assistance as contemplated by
Sections 4.1.1. and 4.1.2 above and the visits shall be of
reasonable duration and made at reasonable times during
regular business hours. OPTIONEE shall bear the entire cost of
the visits made pursuant to sub-paragraph (4.1.1) and shall
promptly reimburse ASU for all reasonable salary, travel and
other expenses actually incurred by ASU's technical personnel
in the course of the visits made to the facilities of OPTIONEE
(or any person or entity to which OPTIONEE has granted a
sub-license in accordance with the LICENSE AGREEMENT)
facilities pursuant to sub-paragraph (4.1.2).
4.3. In consideration of the assistance to be provided by ASU as
contemplated by this Article 4, OPTIONEE shall pay ASU an
aggregate fee of $100,000 in addition to the option fee and
any future license issue fee, and in addition to any costs
paid or reimbursed by OPTIONEE pursuant to Section 4.2. This
fee is payable in two installments of $50,000 each, the first
of which is due no later than one hundred eighty (180) days
from the EFFECTIVE DATE of this Agreement and the second of
which is due no later than one year and one hundred eighty
(180) days from the EFFECTIVE DATE of this Agreement.
5. EXERCISE OF THE OPTION
If OPTIONEE elects to exercise its option to a LICENSE AGREEMENT under
Section 2.1 hereof, OPTIONEE shall notify ASU in writing pursuant to
Article 15 (Notices) prior to the expiration of the TERM of this
Agreement. Failure of OPTIONEE to so notify ASU shall be deemed an
election by the OPTIONEE not to secure a license.
6. TERMS OF PROPOSED LICENSE
If OPTIONEE exercises its option to a LICENSE AGREEMENT as contemplated
by Sections 2.1 and 5, OPTIONEE and ASU shall thereupon negotiate in
good faith and shall use its best efforts to arrive at mutually
agreeable, reasonable terms and conditions for the license. The terms
of the License Agreement shall include, but not be limited to, the
following provisions:
6.1. A worldwide, exclusive license to make, have made, market,
sell and otherwise use the LICENSED PRODUCTS and to practice
the LICENSED METHOD for the life of ASU's PATENT RIGHTS;
6.2. A right to sub-license ASU's PATENT RIGHTS worldwide;
6.3. A License Issue Fee payable as follows:
6.3.1. * payable upon execution of the LICENSE AGREEMENT.
6.3.2. * payable upon each June 1 and December 1 following
the EFFECTIVE DATE of the LICENSE AGREEMENT until
all * payments have been made.
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* Omitted pursuant to request for confidential treatment.
6.4. A royalty rate * of the NET SALES of LICENSED PRODUCTS and *
of the NET SALES by the sub-licensee of LICENSED PRODUCTS;
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* Omitted pursuant to request for confidential treatment.
6.5. Minimum annual royalties in an amount equal to Twenty Thousand
US Dollars ($20,000.00) which will commence upon OPTIONEE's
receipt of marketing approval from the US FDA or any other
European regulatory agency. Such minimum annual royalties
shall be fully credited against earned royalties;
6.6. Technical assistance provided by ASU under terms substantially
similar to those specified in Sections 4.1 and 4.2 of this
Agreement.
6.7. OPTIONEE acknowledges that ASU, for its own internal purposes,
may allocate the Option Fee and future License Issue Fee
payments to ASU Case Nos. 224 and 700. OPTIONEE further
acknowledges that ASU will allocate future earned royalties to
LICENSED PRODUCTS according to the patent claims that the
LICENSED PRODUCTS are sold under. These allocations shall not
relieve OPTIONEE from its obligations to make fee payments as
provided for under this Agreement.
6.8. All costs incurred by ASU from and after the effective date of
the LICENSE AGREEMENT in filing, prosecuting and maintaining
ASU's PATENT RIGHTS in the United States and elsewhere shall
be borne by OPTIONEE. ASU shall prepare and deliver to
OPTIONEE a report setting forth the countries in which it has
filed and intends to file applications with respect to ASU's
PATENT RIGHTS. OPTIONEE may ask ASU in writing to eliminate
certain countries in which OPTIONEE intends not to market the
LICENSED PRODUCTS. OPTIONEE shall not be responsible for any
costs incurred by ASU for the eliminated countries after
receipt of such request by OPTIONEE.
6.9. The following diligence requirements will be included in the
LICENSE AGREEMENT and will have to be met by OPTIONEE:
6.9.1. Filing for approval by the US FDA or other European
regulatory agency to commence at least one Phase II
clinical trial involving ASU's PATENT RIGHTS no later
than one (1) year from the EFFECTIVE DATE of the
LICENSE AGREEMENT; and
6.9.2. Filing for approval by the US FDA or other European
regulatory agency to commence at least one Phase III
clinical trial involving ASU's PATENT RIGHTS no later
than one (1) year from the completion of a Phase II
clinical trial or two (2) years from the initiation
of a Phase II clinical trial whichever is earlier in
time; and
6.9.3. OPTIONEE shall use its best efforts to make a valid
application for an NDA with the US FDA no later than
six months after completion of the first Phase III
clinical trial.
6.9.4. The clinical trials referred to in Paragraphs 6.8.1
and 6.8.2 above shall be conducted at the expense of
OPTIONEE or an AFFILIATE of OPTIONEE.
6.9.5. The parties shall promptly advise one another of any
confirmed instances, which come to their attention of
severe or unexpected reactions from the use of any
LICENSED PRODUCT.
6.9.6. In the event that OPTIONEE, in its sole and absolute
discretion, determines that (i) filing for US FDA or
European regulatory approval is not warranted by the
clinical testing data with respect to the clinical
trials contemplated by Sections 6.8.1 and/or 6.8.2,
or (ii) further development of the TECHNOLOGY is not
economically feasible, OPTIONEE shall so notify ASU
and provide ASU with a report setting forth in
reasonable detail the basis for its determination,
whereupon OPTIONEE may terminate this Agreement with
no further obligation to ASU except for the payment
of any fees which came due or royalties accrued prior
to the date of notification by OPTIONEE.
6.9.7. Meet the reasonably anticipated market demand for
such LICENSED PRODUCTS following commencement of
marketing and during the term of the LICENSE
AGREEMENT.
6.10 OPTIONEE shall agree to manufacture LICENSED PRODUCTS in
accordance with applicable US law.
6.11 Indemnification of ASU under terms substantially similar to
those set forth in Section 14 of this Agreement.
6.12 Provisions identical to those contained in Sections 20.6,
20.7, 20.8 and 20.9 of this Agreement.
6.13 In the event OPTIONEE and ASU are unable to conclude a LICENSE
AGREEMENT within six (6) months ("NEGOTIATION PERIOD") after
OPTIONEE notifies ASU pursuant to Section 5 of this Agreement,
then ASU shall be free to negotiate a license arrangement with
a third party. If, for a maximum of one (1) year after the
NEGOTIATION PERIOD, ASU and a third party agree on the terms
and conditions of a license agreement with respect to ASU's
PATENT RIGHTS, and such terms and conditions are more
favorable to the third party than those that were last offered
to and not accepted by OPTIONEE, then ASU shall give prompt
written notice (the "THIRD PARTY LICENSE NOTICE") to OPTIONEE
of the terms and conditions and OPTIONEE shall have a right of
first refusal (exercisable by written notice to ASU within
thirty (30) days after receipt by OPTIONEE of the THIRD PARTY
LICENSE NOTICE) to enter into a license arrangement with ASU
on the terms and conditions negotiated between ASU and such
third party and set forth in the THIRD PARTY LICENSE NOTICE.
7. DUE DILIGENCE REQUIRED UNDER THIS OPTION
7.1. OPTIONEE shall diligently undertake such research and testing
of the TECHNOLOGY and the LICENSED PRODUCTS as is reasonably
necessary to evaluate its interest in exercising the option.
7.2. OPTIONEE shall finance the pre-clinical development, stability
testing, batch manufacturing, pre-clinical toxicity studies
and pharmacokinetics of Combretastatin A-4 and/or
Combretastatin A-4 Prodrug within the TERM of this Agreement.
OPTIONEE further agrees to use its best efforts to conduct
pre-clinical development, stability testing, toxicity studies
and pharmacokinetics on all other compounds within ASU's
PATENT RIGHTS.
7.3. OPTIONEE agrees to initiate, at its own expense, at least one
Phase I clinical trial using Combretastatin A-4 and/or
Combretastatin A-4 Prodrug within the TERM of this Agreement.
Said Phase I clinical trial shall be independent of any
clinical trials being conducted by the British Cancer Research
Campaign (BCRC). ASU agrees to notify the BCRC of the
existence of this Agreement and to request that the BCRC
coordinate its clinical trial activity with that of OPTIONEE
so that any BCRC clinical trial activity does not contravene
or conflict with OPTIONEE's rights under this Agreement or the
LICENSE AGREEMENT, if one is entered.
7.4. OPTIONEE shall provide ASU with four progress reports covering
its activities relating to the development and testing of
Licensed Products as described in Paragraph 7.2 in six month
intervals, the first such progress report to be delivered on
or before the date that is six months following the EFFECTIVE
DATE of this Agreement.
7.5. The parties shall promptly advise one another of any confirmed
instances, which come to their attention of severe or
unexpected reactions from the use of any LICENSED PRODUCT.
7.6. OPTIONEE shall be entitled to exercise prudent and reasonable
business judgment in meeting its due diligence obligations
hereunder. If OPTIONEE determines in its sole and absolute
discretion that continuation of any further development or
clinical testing of the TECHNOLOGY or LICENSED PRODUCTS is not
warranted by available testing data, or otherwise is not
economically feasible the OPTIONEEE shall so notify ASU and
provide ASU with a report setting forth in reasonable detail
the basis for its determination, whereupon OPTIONEE may
terminate this Agreement with no further obligation to ASU
except for the payment of any fees which came due or royalties
accrued prior to the date of notification by OPTIONEE.
7.7. Promptly after the EFFECTIVE DATE of this Agreement and from
time to time during the TERM of this Agreement, and to the
extent that ASU has all necessary legal and contractual rights
to do so, ASU shall disclose to OPTIONEE all technical
information and KNOW-HOW pertaining to LICENSED PRODUCT that
is known by ASU and with respect to which ASU is then
empowered to grant the rights granted to OPTIONEE in this
Agreement. ASU shall from time to time during the TERM of this
Agreement disclose to OPTIONEE all further necessary technical
information and KNOW-HOW that ASU may acquire or develop
during the TERM of this Agreement pertaining to the
TECHNOLOGY.
8. PATENT PROSECUTION AND MAINTENANCE
8.1. ASU shall diligently prosecute and maintain the patents and
patent applications identified as ASU's PATENT RIGHTS. All
domestic and foreign patent applications shall be filed in the
name of ASU and shall be held in the name of ASU.
8.2. Upon request by OPTIONEE ASU shall provide OPTIONEE with
copies of all relevant documentation so that OPTIONEE may be
informed and apprised of the continuing prosecution, and
OPTIONEE agrees to keep this documentation confidential.
8.3. ASU shall use all reasonable efforts to amend any patent
application to include claims requested by OPTIONEE and
required to protect the products contemplated to be sold under
the LICENSE AGREEMENT.
9. LIFE OF THE AGREEMENT
9.1. Unless earlier terminated by operation of law or by acts of
the parties in accordance with the terms of this Agreement,
this Agreement shall be in full force and effect from the
Effective Date to and including the last date of the TERM
specified in Section 1.10.
9.2. Any termination of this Agreement shall not affect the rights
and obligations set forth in the following Articles:
Article 12 Use of Names and Trademarks
Article 14 Indemnification
Article 17 Late Payments
9.3. Any termination of this Agreement shall not relieve OPTIONEE
of its obligation to pay any monies accrued and owing at the
time of such termination and shall not impair any ASU's right
to collect any monies then due and owed to it.
10. TERMINATION BY ASU
In the event OPTIONEE violates or fails to perform any material term or
covenant of this Agreement, ASU may give written notice of such default
(Notice of Default) to OPTIONEE. If OPTIONEE should fail to cure such
default (or shall have failed to commence steps reasonably designed to
cure such default) within thirty (30) days of the effective date of
such notice, ASU shall have the right to terminate this Agreement by a
second written notice (Notice of Termination) to OPTIONEE. If a Notice
of Termination is sent to OPTIONEE this Agreement shall automatically
terminate on the effective date of such Notice of Termination. These
notices shall be subject to Article 15 (Notices).
11. TERMINATION BY OPTIONEE
OPTIONEE shall have the right at any time and from time to time to
terminate this Agreement in whole or as to any portion of ASU's PATENT
RIGHTS by giving notice in writing to ASU. Such notice shall be given
in accordance with Article 15 (Notices) and such termination shall
effective as of the date that is thirty (30) days from the effective
date of such notice or such other date as may be set forth in the
notice of termination, whichever is later.
12. USE OF NAMES AND TRADEMARKS
12.1. Nothing contained in this Agreement shall be construed as
conferring any right to use in advertising, publicity, or
other promotional activities any name, trade name, trademark,
service xxxx or other designation of either party hereto
(including contraction, abbreviation or simulation of any of
the foregoing). Unless required by law, the use of the name
"ASU" or "Arizona State University" or "Arizona Board of
Regents" is expressly prohibited.
12.2. Notwithstanding Section 12.1, above, OPTIONEE and any
AFFILIATE of OPTIONEE shall have the right to disclose and/or
to file as an exhibit to filings required to be made by
OPTIONEE or any AFFILIATE of OPTIONEE with the Securities &
Exchange Commission the existence and terms of this Agreement
and the proposed LICENSE AGREEMENT.
12.3. It is understood that ASU shall be free to release to the
inventors and senior administrative officials employed by ASU
the terms and conditions of this Agreement upon their request.
It is further understood that should a third party inquire
whether a license to ASU's PATENT RIGHTS is available, ASU may
disclose the existence and the TERM of this Agreement to such
third party, but shall not disclose the name of the OPTIONEE,
except where ASU is required to release such information under
either the Arizona Public Records Act or other applicable law.
13. LIMITED WARRANTY
13.1. ASU represents and warrants to OPTIONEE that it has the
corporate power and legal right to execute and deliver this
Agreement and the LICENSE AGREEMENT, if one is negotiated, and
to perform its obligations. The execution and delivery of this
Agreement by ASU does not violate any (i) provision of law or
regulation applicable to ASU, or (ii) other agreement or
arrangement, whether written or oral, to which ASU is a party
or by which it or its properties are bound. ASU has not
received any notice alleging that any of the patents included
in ASU's PATENT RIGHTS infringe on the patents or other
proprietary technology of a third party. To the best of ASU's
knowledge, the ASU's PATENT RIGHTS do not infringe on the
patents or other proprietary technology of a third party, nor
does ASU know of any basis for such a claim of infringement.
13.2. This Agreement and the associated TECHNOLOGY are provided
without warranty, merchantability, or fitness for a particular
purpose or any other warranty, express or implied. Subject to
Section 13.1, ASU makes no representation or warranty that the
LICENSED PRODUCTS or LICENSED METHODS will not infringe any
patent or other proprietary right.
13.3. In no event will ASU be liable for any incidental, special or
consequential damages in connection with the use of the
TECHNOLOGY or LICENSED PRODUCTS except to the extent such
damages are the result of ASU's willful misconduct or gross
negligence.
13.4. Nothing in this Agreement shall be construed as:
13.4.1. Subject to Section 13.1, a warranty or representation
by ASU as to the validity or scope of any ASU's
PATENT RIGHTS; or
13.4.2. Subject to Section 13.1, a warranty or representation
that anything made, used, sold or otherwise disposed
of under any license of ASU's PATENT RIGHTS is or
will be free from infringement of patents of third
parties; or
13.4.3. An obligation to bring or prosecute actions or suits
against third parties for patent infringement,
provided, however, that if ASU fails or declines to
bring or prosecute any such action or suit, OPTIONEE
has the right to undertake such action or suit in its
own name; or
13.4.4. Conferring by implication, estoppel or otherwise any
license or rights under any patents of ASU other than
ASU's PATENT RIGHTS set forth in Section 1.1,
regardless of whether such patents are dominant or
subordinate to ASU's Patent Rights; or
13.4.5. An obligation to furnish any know-how not included in
ASU's PATENT RIGHTS.
14. INDEMNIFICATION
14.1. OPTIONEE agrees to indemnify, hold harmless and defend ASU,
its officers, employees and agents; the sponsors of the
research that lead to the TECHNOLOGY; and the INVENTOR of the
patents and patent application included in ASU's PATENT RIGHTS
(collectively, the INDEMNITEES) against any and all claims,
suits, losses, damages, costs, fees, and expenses resulting
from or arising out of exercise of this Agreement; provided,
however, that OPTIONEE shall have no obligation to indemnify
any INDEMNITEE for the negligence or willful misconduct of or
breach of representation contained in this Agreement by such
INDEMNITEE.
14.2. ASU shall promptly notify OPTIONEE in writing of any claim or
suit brought against ASU in respect of which ASU intends to
invoke the provisions of this Article 14. OPTIONEE will keep
ASU informed on a current basis of its defense of any claims
pursuant to this Article 14.
15. NOTICES
Any payment, notice or other communication required or permitted to be
made or given to either party pursuant to this Agreement shall be
deemed sufficiently made or given on the date of mailing if sent to the
party by certified or registered mail, postage prepaid, addressed to it
at its address set forth below or to such other address as shall have
been designated by written notice given in accordance with the
provisions of this Section 14.
In the case of ASU:
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Office of Technology Collaborations & Licensing
Office of the Vice Xxxxxxx for Research
Arizona State University
P. O. Box 873511
Tempe, AZ 85287-3511
In the case of OPTIONEE: COPY TO:
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OXiGENE Europe AB OXiGENE, Inc.
IDEON Research Park 000 Xxxx 00xx Xxxxxx
Xxxxxxxxxxxx 00 Xxx Xxxx, XX 00000
X-000 00 Xxxx, XXXXXX Attn.: Vice President
Any notice required or permitted to be given pursuant to this Agreement
shall be deemed effective 10 days following receipt of a notice given
in accordance with the provisions of this Section 15.
16. ASSIGNABILITY
This Agreement is binding upon and shall inure to the benefits of ASU,
its successors and assigns, but shall be personal to OPTIONEE and
assignable by OPTIONEE only with the prior written consent of ASU,
which consent shall not be unreasonably withheld, provided, however
that OPTIONEE may assign this Agreement to an AFFILIATE without ASU's
consent but with notice to ASU in accordance with Section 15.
17. LATE PAYMENTS
In the event fees or payments contemplated by this Agreement are not
received by ASU when due, OPTIONEE agrees to pay ASU interest charges
at a rate per annum of either a) Ten (10) percent, or b) five (5)
percent plus the rate of interest which is charged by the San Francisco
Federal Reserve Bank to member banks twenty-five (25) days prior to the
date the payment was due, whichever is greater. Such interest shall be
calculated from the date payment was due until actually received by ASU
18. WAIVER
It is agreed that no waiver by either party hereto of any breach or
default of any of the covenants or agreements herein set forth shall be
deemed a waiver as to any subsequent and/or similar breach or default.
19. GOVERNING LAWS
This Agreement shall be interpreted and construed in accordance with
the laws of the State of Arizona.
20. MISCELLANEOUS
20.1. 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.
20.2. This Agreement will not be binding upon the parties until it
has been signed below on behalf of each party; it shall then
be effective as of the EFFECTIVE DATE. No amendment or
modification shall be valid or binding upon the parties unless
made in writing and signed by each party.
20.3. In case any of the provisions contained in this Agreement
shall be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability
shall not affect any other provisions hereof, but this
Agreement shall be construed as if such invalid or illegal or
unenforceable provisions had never been contained herein.
20.4. This Agreement embodies the entire understanding of the
parties and shall supersede all previous communications,
representations, or undertakings, whether verbal or written,
between the parties relating to its subject matter.
20.5. OPTIONEE agrees that the personnel of OPTIONEE will not for
any purpose be considered employees or agents of ASU and that
OPTIONEE assumes full responsibility for the actions of its
personnel while performing services under this Agreement, and
shall be solely responsible for their supervision, daily
direction and control, payment of salary (including
withholding income taxes and social security), worker's
compensation and disability benefits. ASU agrees that the
personnel of ASU will not for any purpose be considered
employees or agents of OPTIONEE and that ASU assumes full
responsibility for the actions of its personnel while
performing services under this Agreement, and shall be solely
responsible for their supervision, daily direction and
control, payment of salary (including withholding income taxes
and social security), worker's compensation and disability
benefits.
20.6. The parties agree to comply with all applicable state and
federal laws, rules, regulations and executive orders as to
equal employment opportunity, nondiscrimination and
affirmative action.
20.7. This Agreement is subject to Section 38-511, Arizona Revised
Statutes.
20.8. In the event of a dispute under this Agreement, the parties
agree to use arbitration if, and then only to the extent
required under Sections 12-1518 and 12-133, Arizona Revised
Statutes.
20.9. To the extent required by Section 35-214, Arizona Revised
Statutes, OPTIONEE agrees to retain all books, accounts,
reports, files and other records of OPTIONEE relating to this
Agreement and make those records available at all reasonable
times, upon prior written notice, for inspection and audit by
ASU or the Auditor General of the State of Arizona, or their
agents, during the terms of and for a period of five (5) years
after the completion of this Agreement. The records shall be
provided at Arizona State University, Tempe, Arizona, or
another location designated by ASU upon reasonable notice to
OPTIONEE.
IN WITNESS WHEREOF, both ASU and OPTIONEE have executed this Agreement, in
duplicate originals, by their respective officers hereunto duly authorized, as
of the EFFECTIVE DATE.
ARIZONA BOARD OF REGENTS OXiGENE Europe AB
a body corporate of the State of Arizona
acting for ("OPTIONEE")
ARIZONA STATE UNIVERSITY
("ASU")
BY:----------------------- BY:----------------------
BY:----------------------
