1
Exhibit 10.40
BIOREPOSITORY AGREEMENT
This AGREEMENT (the "AGREEMENT") made by and between CHILDRENS HOSPITAL LOS
ANGELES (herein called "CHLA") and ONCORMED (herein called "ONCORMED") as of the
date of the last signature below (the "EFFECTIVE DATE").
WHEREAS, ONCORMED and its affiliates perform genetic cancer research
and require certain storage facilities and services for its library of TISSUE
SAMPLES;
WHEREAS, CHLA has the resources and personnel to act as a
biorepository site for TISSUE SAMPLES;
WHEREAS, CHLA and ONCORMED desire to work together such that CHLA
provides certain facilities and services for the maintenance of ONCORMED's
library of TISSUE SAMPLES, and ONCORMED provides certain funding for the
project;
NOW, THEREFORE, in consideration of the mutual convenants and
conditions herein and intending to be legally bound, CHLA and ONCORMED agree as
follows:
1.0 Scope of Work:
CHLA will act as a biorepository for ONCORMED and its other
collection sites (listed in Appendix A) and upon ONCORMED's request will ship
tissue samples (the "TISSUE SAMPLES") to ONCORMED and its collaborators (listed
in Appendix B). CHLA agrees to be responsible for coordinating the accrual,
processing, and storage requirements of a new tissue repository network (the
"WORK"). Appendix C outlines the activities and requirements of same, which the
parties may mutually agree to update and change from time to time (hereinafter
the "SCOPE OF WORK").
2.0 Personnel
The work shall be under the direction of ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
the "BIOREPOSITORY COORDINATOR", and shall be carried out by other personnel of
CHLA as reasonably assigned by the BIOREPOSITORY COORDINATOR. If during the term
of this Agreement, ▇▇. ▇▇▇▇▇▇▇▇▇ for any reason ceases to act as BIOREPOSITORY
COORDINATOR, CHLA will consult with ONCORMED with regard to selection of another
person as BIOREPOSITORY COORDINATOR. ONCORMED shall have the right to veto the
selection of a BIOREPOSITORY COORDINATOR with which it reasonably disagrees and
terminate this AGREEMENT upon forty-five (45) days advance written notice.
2
3.0 Period of Performance
The AGREEMENT shall extend from the date of execution
for three (3) years unless modified by written amendment,
renewal, or extension and shall thereafter be renewed on a
month to month basis unless and until either party notifies
the other, not less than thirty (30) days prior to the
expiration of the then current term or renewal thereof, of
such party's election to terminate this AGREEMENT effective
upon expiration of such term or renewal (the "TERM").
4.0 Duties of CHLA
CHLA agrees to furnish such available laboratory facilities,
equipment and utilities, as it shall deem necessary for the SCOPE OF WORK to be
done including but not limited to the equipment in Appendix D attached hereto.
CHLA agrees to maintain all necessary data and financial
records and agrees to make such records available to ONCORMED upon ONCORMED's
request and expense at any reasonable time during regular working hours, and
copies of all or any part of the records shall be made available within ten (10)
days upon request.
CHLA agrees to assign qualified and competent personnel to the
project. CHLA shall be responsible for the full performance of the AGREEMENT and
agrees that the description of the SCOPE OF WORK in Appendix C is accurate.
CHLA represents and warrants that is has the full authority
and power to enter into this Agreement and that no act or omission performed by
CHLA under this AGREEMENT will be in violation of any state or federal law or
any contractual obligation of CHLA to any third party.
CHLA warrants that it will perform its work to the best of its
ability, making use of its skill and experience within its area of expertise,
according to the highest standard of care and competence used in medical and
scientific inquiry.
5.0 Duties of ONCORMED
ONCORMED warrants that all participating accrual sites have an
Investigational Review Board ("IRB") approved protocol under which TISSUE
SAMPLES are collected. Accrual sites may have their own internal IRB approved
protocols, or their protocols will be reviewed and approved by ONCORMED's IRB.
Additionally, ONCORMED represents that in each agreement it executes, will
3
execute or has executed with accrual sites, that each accrual site is obligated
to follow IRB approved protocols that require the accrual sites to obtain
consent from all donors of TISSUE SAMPLES.
ONCORMED agrees to provide copies of all current IRB approved
protocols used at each accrual site which covers tissue acquisition and an
example of the consent forms being utilized by the accrual sites hereafter
referred to as Appendix E and incorporated by reference. ONCORMED agrees to
provide CHLA with any updates or modifications to the IRB's or consent forms
within a reasonable time after receiving notice of said updates or
modifications.
ONCORMED agrees to provide certain supervision and consulting
services to CHLA personnel, as shall be mutually agreed, at no cost to CHLA
during the term of this AGREEMENT.
6.0 Costs and Payments
The estimated total cost to ONCORMED for the first year to
perform the SCOPE OF WORK as detailed in Appendix C is [****] (Appendix D),
which includes certain set-up costs, some of which may be paid directly by
ONCORMED.
CHLA's costs shall include all costs, direct and indirect,
incurred in the performance of the SCOPE OF WORK or reasonably incidental to
such performance. Such costs shall be subject to audit by ONCORMED at ONCORMED's
expense.
ONCORMED agrees to make twelve equal monthly payments to CHLA,
in the amount of [****]. The first payment shall be made within thirty (30) days
of execution of this AGREEMENT.
ONCORMED agrees to also reimburse CHLA within thirty (30) days
of receiving an invoice from CHLA for the purchase of equipment listed in
Appendix D.
ONCORMED agrees to pay or provide, at its option, insurance
and maintenance contracts for the equipment listed in Appendix D.
CHLA shall prepare an annual budget for approval by ONCORMED.
CHLA shall provide the budget to ONCORMED at least thirty (30) days prior to the
expiration of the current budget for review.
**** Denotes language for which the Company has requested confidential
treatment pursuant to the rules and regulations of the Securities and
Exchange Act of 1934, as amended.
4
7.0 Right to Inspect and Audit
Both parties agree to maintain written records of all work
performed and data developed under this AGREEMENT for a period of at least three
(3) years from the termination of this AGREEMENT. An authorized representative
of each party shall make all records available to the other party for inspection
at any reasonable time during regular working hours, and copies of all or any
part of the records shall be made available within thirty (30) days upon
request.
8.0 Intellectual Property Rights
A. Ownership:
During the TERM, and in connection with its
performance under the AGREEMENT each party may make certain
discoveries or inventions in combination with each other, or
independently of one another (the "INVENTIONS") to which
certain INTELLECTUAL PROPERTY RIGHTS (as hereinafter defined)
may apply. The parties acknowledge the following situations
may arise in the course of CHLA providing the WORK to
ONCORMED, and agree as to the outcomes stated for each
situation. The parties also agree that promptly upon the
making of any INVENTION the party having made the INVENTION
will make a full and complete disclosure of the INVENTION to
the other, subject to all of the confidentiality, license, and
ownership provisions of this AGREEMENT (the "DISCLOSURE").
1. Each party enters this AGREEMENT owning certain
patents, trademarks, trade secrets, and copyrights (the
"INTELLECTUAL PROPERTY RIGHTS"). The INTELLECTUAL PROPERTY
RIGHTS belonging to each party prior to the EFEFCTIVE DATE,
and those vesting in either party during the TERM by virtue of
acts entirely outside the scope of this AGREEMENT remain
entirely with that party, and nothing in this AGREEMENT shall
be deemed to grant the other any right, title, interest or
license thereto.
2. Those inventions or discoveries made by ONCORMED
independent of CHLA, and the INTELLECTUAL PROPERTY RIGHTS
thereto, even if ONCORMED subsequently discusses and discloses
said inventions to CHLA, remain solely the property of
ONCORMED, and nothing in this AGREEMENT shall be deemed to
grant CHLA any right, title, interest, or license thereto.
Those inventions or discoveries made by CHLA independent of
ONCORMED and without the request of ONCORMED to make the
invention, and the INTELLECTUAL PROPERTY RIGHTS thereto,
remain solely the property of CHLA, and nothing in this
5
AGREEMENT shall be deemed to grant ONCORMED any right, title,
interest, or license thereto.
3. During the TERM, and in connection with its
performance under this AGREEMENT, ONCORMED may request that
CHLA make, devise, improve or invent INVENTIONS within the
SCOPE OF WORK, including, but not limited to: (i) make
specific modifications to protocols used in performing the
WORK or (ii) within the SCOPE OF WORK, devise improvements to,
or entirely new protocols to be used in performing the WORK.
INVENTIONS made pursuant to this Section 8.A.3, and the
INTELLECTUAL PROPERTY RIGHTS thereto, shall be solely the
property of ONCORMED, and nothing in this AGREEMENT shall be
deemed to grant CHLA any right, title interest, or license
thereto, except as specified in Section 8.B.3. CHLA hereby
makes any assignment necessary to achieve the foregoing
ownership position.
4. During the TERM, and in connection with the WORK
performed under this AGREEMENT, ONCORMED may request that CHLA
develop, invent, or test INVENTIONS outside the SCOPE OF WORK.
Such requests shall be made in writing and shall include a
description of the tasks to be performed, the goals for the
outcomes of the tasks, and the fees to be paid to CHLA for the
performance of the tasks (the "WORK ORDER"). Any INVENTIONS
made pursuant to this Section 8.A.4, and the INTELLECTUAL
PROPERTY RIGHTS shall be solely the property of CHLA, and
LICENSED (as hereinafter defined) to ONCORMED on the terms
provided in Section 8.B.3 hereof.
5. During the TERM, CHLA may make certain inventions
or discoveries that are directly applicable to the WORK but
were not made in the course of the WORK (the "CHLA
DEVELOPMENTS"). The CHLA DEVELOPMENTS and any INTELLECTUAL
PROPERTY RIGHTS thereto shall remain the property of CHLA, but
shall be DISCLOSED to ONCORMED, provided that to do so would
not violate any existing contractual obligations of CHLA. CHLA
DEVELOPMENTS are subject to the terms of Section 8.E.
hereof.
B. License Grants:
1. CHLA hereby grants to ONCORMED, and ONCORMED
hereby accepts a limited, royalty-free, non-exclusive,
irrevocable license to use internally the INVENTIONS made by
CHLA and described in Section 8.A.4 hereof.
2. ONCORMED hereby grants to CHLA, and CHLA
hereby accepts a limited, royalty-free, non-exclusive,
irrevocable license to use internally for non-
6
commercial purposes the INVENTIONS made by ONCORMED described
in Section 8.A.3 and 8.A.4 hereof.
3. Subject to the ABONDONMENT provisions of Section
8.C.1 and the royalty provisions of Section 8.D. hereof, CHLA
hereby grants to ONCORMED an exclusive, worldwide, irrevocable
license to make, have made, use or sell the INVENTIONS arising
out of the WORK ORDER, under all the INTELLECTUAL PROPERTY
RIGHTS thereto. Except in any event, both parties retain the
right to use INVENTIONS covered by this Section 8.B.3 for
their own internal purposes, which in the case of CHLA, shall
be only non-commercial internal purposes.
C. Patent Prosecution, Abandonment, and Costs:
1. Once ONCORMED has received a DISCLOSURE from CHLA
regarding any INVENTION that arose from a WORK ORDER, ONCORMED
will review the DISCLOSURE and determine, in its sole
discretion, whether it will abandon said INVENTION
("ABANDONMENT"). If ONCORMED ABANDONS the INVENTION, it will
notify CHLA in writing of its decision to ABANDON within
ninety (90) days of receiving the DISCLOSURE. ABANDONMENT will
relieve ONCORMED of any responsibilities under Sections 8.C.2
and 8.C.3 hereof, and will preclude or extinguish the
exclusive license granted under Section 8.B.3 hereof with
respect to that certain INVENTION, and therefore all right to
the specific INVENTION ABANDONDED will remain with CHLA.
2. ONCORMED will diligently file, prosecute and
maintain, or cause to be filed, prosecuted and maintained any
patent applications and patents covering INVENTIONS that arise
from the WORK ORDER, except for any INVENTIONS it has
ABANDONDED, for which it will have no responsibility whatever.
3. ONCORMED will bear all of the expenses associated
with the filing, prosecuting and maintaining of patent
applications and patents covered under Section 8.C.2 hereof.
D. Royalties:
ONCORMED will, on a quarterly basis, report to CHLA
the full extent of any gross income actually received by
ONCORMED arising from the sale, license or other
commercialization of the INVENTIONS licensed under Section
8.B.3 hereof (the "REVENUES"). ONCORMED will pay to CHLA a
royalty that has been in good faith negotiated and is stated
in the WORK ORDER. The ROYALTIES will be paid by ONCORMED to
CHLA until the expiration of the patent rights, on a country
by
7
country basis, and after expiration, ONCORMED shall have a
fully paid-up license.
E. CHLA DEVELOPMENTS:
Provided that to do so would not violate any existing
contractual obligations of CHLA, CHLA shall offer to ONCORMED
an exclusive license to make, have made, use and sell the CHLA
DEVELOPMENTS, including the right to sublicense, under CHLA's
INTELLECTUAL PROPERTY RIGHTS therein. The parties shall in
good faith negotiate the terms of the license, although
ONCORMED shall be under no obligation to accept such license
or any additional obligations described in Section 8.C.
F. Further Assurances:
Each of the parties hereby agrees to cooperate fully
in making all assignments, and executing any and all documents
pursuant to the reasonable requests of the other to affirm or
effectuate the terms of this AGREEMENT.
9.0 Confidential Information
CONFIDENTIAL INFORMATION controlled by this AGREEMENT shall
mean information which is confidential and/or proprietary and includes, but
without limitation, IRB approved protocols, consent forms, data, know-how,
formulae, processes, designs, sketches, photographs, plans, drawings,
specifications, samples, reports, customer lists, pricing, information, studies,
findings, inventions and ideas including but not limited to INVENTIONS (the
"CONFIDENTIAL INFORMATION"). The fact and terms of this AGREEMENT shall also be
deemed and treated as CONFIDENTIAL INFORMATION.
To the extent practical, CONFIDENTIAL INFORMATION shall be
disclosed in documentary or tangible form marked "Confidential" or
"Proprietary". In the case of oral disclosures, the disclosing party shall have
the obligation to at the time of the disclosure, state that the disclosure is
confidential and thereafter confirm in writing the fact and general nature of
the disclosure within thirty (30) days after it is made.
A recipient of a disclosure of CONFIDENTIAL INFORMATION shall
not be under any obligation under this AGREEMENT five (5) years from the
expiration or termination of this AGREEMENT by the parties.
The recipient of CONFIDENTIAL INFORMATION shall use such
CONFIDENTIAL INFORMATION for the purposes contemplated in this AGREEMENT, and
shall exercise the same degree of care as it exercises to protect its own
CONFIDENTIAL INFORMATION, but in no
8
event less than reasonable care to prevent its disclosure to any third party.
The recipient of CONFIDENTIAL INFORMATION shall also limit internal
dissemination of CONFIDENTIAL INFORMATION to individuals whose duties justify
the need to know such CONFIDENTIAL INFORMATION, and then only provided that
there is a clear understanding by such individuals of their obligations to
maintain the proprietary and/or confidential status of such information and to
restrict its use solely to the purposes specified herein.
The recipient of CONFIDENTIAL INFORMATION shall be under no
obligation with respect to any information: (a) which is, at the time of the
disclosure, available to the general public or later becomes available through
no fault of the recipient; (b) which recipient can demonstrate was in its
possession before receipt; (c) which is disclosed to recipient without
restriction on disclosure by a third party who has the lawful right to disclose
such information; (d) is independently developed by recipient without any
reference to the CONFIDENTIAL INFORMATION and recipient can demonstrate such
independent development by written record; (e) which is required to be disclosed
by the recipient pursuant to order of a court or law; and (f) ONCORMED shall be
entitled to disclose this AGREEMENT to lenders, investors, and their counsel in
connection with financing.
10.0 Equipment
The title and ownership to all equipment that is purchased by
CHLA or ONCORMED during the performance of this AGREEMENT (the "EQUIPMENT"),
including by not limited to the EQUIPMENT itemized in Appendix D shall vest at
the time of purchase in ONCORMED. All of the EQUIPMENT will be used exclusively
for storing, analyzing, and processing the TISSUE SAMPLES from ONCORMED and its
other collection sites and other purposes in connection with the providing of
the SCOPE OF WORK.
11.0 Use of Names
Each party agrees not to use the name of the other party,
subject to the exception in Section 9.0, without written permission of the other
party.
12.0 Assignment and Subcontracting
Neither this AGREEMENT, nor the SCOPE OF WORK defined
hereunder, shall be assigned or subcontracted, in whole or in party, to any
third party without prior written consent of the other party; provided, however,
that either party may assign this AGREEMENT without the other party's consent in
connection with the sale of controlling interest in or substantially all of the
assets, business or stock of such party to a third party.
9
13.0 Relationship of the Parties
In the performance of this AGREEMENT and the SCOPE OF WORK
described herein, CHLA is and shall be an independent contractor. Neither CHLA
nor any of its subcontractors shall be deemed to be the servant, agent or
employee of ONCORMED. CHLA remains responsible for the organization,
supervision, and direction of the SCOPE OF WORK described herein. CHLA shall
furnish all necessary management, technical, and other personnel necessary for
timely completion of the SCOPE OF WORK.
14.0 Insurance
Each of the parties shall, at its sole cost and expense,
maintain a policy or policies of comprehensive general liability insurance,
including coverage against malpractice, with per occurrence liability coverage
of at least [****], and annual aggregate liability coverage of at least [****],
written by an insurance company or companies lawfully doing business in
California with an A. M. Best rating of B plus or better. If a party is
self-insured for more than [****] of liability, such self-insurance shall meet
the requirement of this AGREEMENT only if approved in writing by the other
party. Each party shall give the other party at least 30 days prior written
notice of any proposed reduction or cancellation of such insurance coverage, and
shall provide to the other party evidence of the above-described insurance
policy or policies upon reasonable request.
Each of the parties shall, at its sole cost and expense,
maintain a program or programs of workers' compensation insurance in an amount
and form to meet all applicable legal requirements to which such party is
subject.
15.0 Indemnification
ONCORMED shall indemnify, defend, and hold harmless CHLA, as
well as CHLA's agents and employees from any loss, damage, liability, cost, suit
charge, expenses, or cause of action (including reasonable attorney's fees)
arising out of any damage or injury to CHLA's property and property of third
parties, including real, personal and environmental damages, or persons,
including injuries resulting in death, directly caused by or arising our of or
in connection with this AGREEMENT and can be attributed in whole or in part to
negligent acts, omissions, fault, or willful misconduct of ONCORMED.
**** Denotes language for which the Company has requested confidential
treatment pursuant to the rules and regulations of the Securities and
Exchange Act of 1934, as amended.
10
CHLA shall indemnify, defend, and hold harmless ONCORMED, as
well as ONCORMED's agents and employees from any loss, damage, liability, cost,
suit charge, expenses, or cause of action (including reasonable attorney's fees)
arising out of any damage or injury to ONCORMED's property and property of third
parties, including real, personal and environmental damages, or persons,
including injuries resulting in death, directly caused by or arising our of or
in connection with this AGREEMENT and can be attributed in whole or in part to
negligent acts, omissions, fault, or willful misconduct of CHLA.
The indemnities set forth in this Section 15.0 are subject to
the following limitations: (i) that the party seeking indemnification (the
"INDEMNIFIED PARTY") gives prompt written notice of any claim under Section 15.0
hereof, to the other party (the "INDEMNIFYING PARTY"); (ii) that the
INDEMNIFYING PARTY is given the option of assuming sole control over the claim;
and (iii) that neither party shall be liable to the other for consequential,
incidental, indirect, punitive or special damages, from all causes of action of
any kind, including contract, tort or otherwise, even if advised of the
likelihood of such damages occurring.
The Indemnified Party shall also provide the Indemnifying
Party with all reasonable cooperation in connection with such a claim. The
Indemnifying Party shall not be liable for any settlement it does not approve in
writing.
16.0 Disclaimer of Warranties
EXCEPT FOR WARRANTIES SET FORTH EXPLICITLY IN THIS AGREEMENT,
NEITHER PARTY MAKES ANY OTHER REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED,
AND, WITHOUT LIMITATION OF THE FOREGOING, BOTH PARTIES DISCLAIM THE IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
17.0 Notices
Each party shall designate in writing a representative to
receive any and all notices required under this AGREEMENT or any amendments or
modifications hereto. Notices shall be in writing and shall be given to the
representative designated to receive the same, either by personal delivery or by
U.S. mail, telegraph, telex, telecopier, or any similar means, properly
addressed or upon such later date following receipt as is set forth in the
notice. Any party, by written notice to the other parties may change the
representative or the address to whom or to which such notices are to be sent.
11
TO CHLA: TO ONCORMED:
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Director of Corporate Relation ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
And Technology Transfer ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇▇▇ # ▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With a copy to: With a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President and General Counsel ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇., Mailstop #▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
18.0 Termination
This AGREEMENT may be terminated by either party, except as
provided below, by giving the other party written notice of a breach and
allowing thirty (30) days to cure. The non-breaching party must provide a full
description of the event or occurrence constituting a breach of this AGREEMENT.
The party receiving the notice will have thirty (30) days to cure that breach
upon receipt of written notice. If the breach is not cured within that time, the
termination will be effective immediately. Upon termination initiated by CHLA
for a material breach by ONCORMED, CHLA shall be entitled to full payment of
costs already incurred and all non-cancelable obligations.
Either party may immediately terminate this AGREEMENT for
fraud, willful misconduct, or illegal conduct of the other party upon written
notice of same to the other party.
In the event an order for relief is entered against either
party under the Federal Bankruptcy Code, or an order appointing a receiver for
substantially all assets is entered by a court of competent jurisdiction, or
either party makes an assignment for the benefit of creditors, or a levy of
execution is made upon substantially all of the assets of either party and such
levy is not quashed or dismissed within thirty (30) days, this AGREEMENT shall
automatically terminate effective on the date of such order or assignment or, in
the case of such levy, the expiration of such thirty day period; provided,
however, that such termination shall not impair or prejudice any right of remedy
that either party might have under this AGREEMENT.
This AGREEMENT shall terminate within thirty (30) days if the
parties are unable to mutually agree upon an annual budget subsequent to
presentation by CHLA to ONCORMED and ONCORMED's thirty (30) day review.
12
In the event of termination or expiration of this Agreement,
ONCORMED shall, within a reasonable time, make arrangements to have the TISSUE
SAMPLES and EQUIPMENT removed from the premises of CHLA. However, until such
time, CHLA shall use its best efforts to preserve the TISSUE SAMPLES and the
EQUIPMENT in at least as good condition as the TISSUE SAMPLES and EQUIPMENT were
in during the TERM of the AGREEMENT. ONCORMED will, within thirty (30) days of
receiving an invoice from CHLA, itemizing all reasonable expenses associated
with its obligations under this paragraph, reimburse CHLA for all such
reasonable expenses.
19.0 Arbitration
Any disagreements or disputes between the parties shall be
resolved through binding arbitration rather than through lawsuits and the
courts. Accordingly, the following procedures for arbitration shall apply.
In the event that any dispute arises between the parties,
including but not limited to disputes relating to this AGREEMENT or its alleged
breach, the parties shall first try to resolve any such dispute in good faith on
an informal basis. Any dispute that the parties are unable to resolve on an
informal basis within thirty (30) days from the date written notice of the
dispute is delivered shall be settled by arbitration, as provided below.
The arbitration of any dispute which the parties cannot
resolve informally as provided in subparagraph a. above shall be conducted by a
single arbitrator in accordance with California Civil Procedure Code Sections
1282-1284.2. If possible, the arbitrator shall be selected by mutual agreement
of the parties. If the parties cannot agree on an arbitrator, the arbitrator
shall be selected by striking from a list of arbitrators supplied by
JAMS-Endispute, or other arbitration organization agreed to by the parties. The
arbitration shall be held in the City of Chicago, Illinois or other mutually
agreed neutral venue. The arbitration decision shall be final and binding on all
parties. Judgment on any award rendered by the arbitrator may be entered in any
court having jurisdiction over the parties and the subject matter of the
controversy. The prevailing party in any such arbitration shall be entitled to
recover from the other party as part of the arbitration award, in addition to
all other relief, reasonable attorneys' fees. The nonprevailing party shall be
responsible for all costs of the arbitration, including but not limited to, the
arbitration fees, court reporter fees, room charges, etc.
If a party institutes any legal action or pursues any claim or
controversy between the parties by any method other than arbitration, the
responding party shall be entitled to recover from the other party all damages,
costs, expenses, and attorneys' fees incurred as a result of such action.
13
20.0 Severability
Should any term of this AGREEMENT, for any reason, be held to
be illegal or unenforceable, the remaining terms of this AGREEMENT will continue
in full force and effect, and the offending term will be limited or deleted to
the extent necessary to make it enforceable. The parties agree to negotiate in
good faith and agree upon a modified term, which reflects the original intent of
the parties.
21.0 Governing Law
This AGREEMENT shall be governed and construed in accordance
with the laws of the State of Delaware.
22.0 Entire Agreement
This AGREEMENT is binding upon and shall inure to the benefit
of the parties hereto, their representatives, successors, and assigns. No
failure or successive failures on the part of either party, its successors, or
assigns, to enforce any covenant or agreement, and no waiver or successive
waivers on their part of any condition of this AGREEMENT, shall operate as a
discharge of such covenant, agreement, or condition or render the same invalid,
or impair the right of either party, its successors and assigns, to enforce the
same in the event of any subsequent breach or breaches by the other party, its
successors or assigns.
This AGREEMENT constitutes the entire agreement between the
parties and supersedes all previous agreements and understandings related to the
work. The AGREEMENT may not be altered, amended, or modified except by a written
instrument signed by the duly authorized representatives of both parties.
IN WITNESS WHEREOF, the parties hereto have caused this AGREEMENT to be
executed by their duly authorized representatives as of the last date and year
written below.
CHILDRENS HOSPITAL OF LOS ANGELES
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
By: Yves De Clerck
------------------------------
Date: 1/26/98
------------------------------
Title: Research Institute Director
Vice President of Research
------------------------------
14
ONCORMED
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇, MD
-------------------------------------
By: ▇▇▇▇ ▇▇▇▇▇▇▇▇, MD
------------------------------
Date: 1/29/98
------------------------------
Title: President & COO
------------------------------
15
APPENDIX A: Collection Sites
[****]
**** Denotes language for which the Company has requested confidential
treatment pursuant to the rules and regulations of the Securities
and Exchange Act of 1934, as amended.
16
APPENDIX B: Oncormed Biorepository Collaborations
1. Incyte Pharmaceuticals, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
17
Appendix C: Scope of Work, Oncormed Biorepository
CHLA will establish, maintain and coordinate Oncormed's biorepository. CHLA will
be responsible for receiving, processing, and storing tissues received from
accrual sites and for processing and shipping requested tissue to Oncormed's
clients. CHLA will also be responsible for the administrative functions of the
biorepository including coordinating tissues and data received from accrual
sites and for maintaining communication with accrual sites, Oncormed and
Oncormed clients.
[****]
**** Denotes language for which the Company has requested confidential
treatment pursuant to the rules and regulations of the Securities
and Exchange Act of 1934, as amended.
18
APPENDIX D:
[****]
**** Denotes language for which the Company has requested confidential
treatment pursuant to the rules and regulations of the Securities
and Exchange Act of 1934, as amended.
19
APPENDIX E:
[****]
**** Denotes language for which the Company has requested confidential
treatment pursuant to the rules and regulations of the Securities
and Exchange Act of 1934, as amended.
20
March 23, 1998
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Director of Corporate Relations and
Technology Transfer
Childrens Hospital Los Angeles
Mailstop #84
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear ▇▇▇▇▇▇▇▇:
By this letter agreement, Oncormed, Inc. (Oncormed) and Childrens Hospital Los
Angeles (CHLA) acknowledge entering into that certain agreement dated January
29, 1998 (the Agreement), and now desire to make certain amendments to the
Agreement by entering into this first amendment to the Agreement (the First
Amendment). And now, in consideration of our respective promises set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. The parties hereby delete in its entirety the third
paragraph under Section 6.0 on page three of the
Agreement and replace said paragraph with the following:
ONCORMED agrees to make twelve equal monthly payments to
CHLA (the Payments), in the amount of [****]. The first
payment shall be made within sixty (60) days of the
execution of this Agreement. The parties agree to
increase the amount of the Payments to the extent, and
when the parties mutually agree that additional personnel
should be hired in response to increased volume of tissue
sample intake and processing.
2. The parties hereby delete in its entirety Exhibit D to the
Agreement, and replace said exhibit with Exhibit D attached
hereto.
3. The changes set forth in paragraphs 1 and 2 above shall be deemed
effective as of the effective date of the Agreement, as if such
changes had been in the original Agreement.
4. Except for the two changes effected by the foregoing,
each and every term and condition of the Agreement shall
remain in effect without any change whatsoever.
**** Denotes language for which the Company has requested confidential
treatment pursuant to the rules and regulations of the Securities
and Exchange Act of 1934, as amended.
21
Please acknowledge acceptance of this First Amendment and all of its terms by
signing below and returning a copy to me. I look forward to continuing our
mutually beneficial relationship. Thank you for your cooperation in this matter.
Yours sincerely,
▇▇▇▇ ▇▇▇▇▇▇▇▇
President
Oncormed, Inc.
cc: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, M.D.
AGREED AND ACCEPTED:
Childrens Hospital Los Angeles
/s/ ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------
Signed
▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------
Name
Vice President of Research
Director, Research Institute
------------------------------
Title
3/30/98
------------------------------
Date
