Exhibit 10.10
THIS ("Agreement" or "") dated as of April 1, 2002 (the "Effective Date") is entered
into by and between GENVEC, INC., a Delaware corporation ("Sponsor"), and
CORNELL UNIVERSITY, a not-for-profit educational institution having corporate
powers under the laws of the State of New York ("University"), for its Medical
College ("Medical College").
WITNESSETH:
WHEREAS, the Sponsor and the University have previously entered
into those certain s effective as of May 18, 1993
and April 1, 1998 (collectively referenced herein as the "Prior "), pursuant to which Sponsor supported preclinical research
and clinical research at the Medical College in connection with Gene Therapy (as
defined in Appendix 1 hereto), which relationship the parties wish to extend;
WHEREAS, the Gene Therapy research project that is to be conducted
at the Medical College with the support of the Sponsor is to be jointly
supervised by Xxxxxx X. Xxxxxxx, M.D. ("Dr. Crystal"), a Professor of Medicine
at the Medical College and a paid consultant and equity holder of the Sponsor
and Chairman of the Sponsor's Scientific Advisory Board, and by the Medical
College's Chairman of the Department of Medicine (currently Xxxxx X. Xxxxxxx,
M.D. ("Xx. Xxxxxxx")), all as permitted by and in accordance with applicable
Laws and University Policies (as defined in Appendix 1 hereto);
WHEREAS, the Sponsor has entered into an Amended and Restated
Exclusive License Agreement, as further amended March 18, 2002, in the form
attached as Exhibit A hereto ("License Agreement") with the Cornell Research
Foundation, Inc. ("Foundation"), a wholly owned subsidiary of the University;
WHEREAS, the Gene Therapy discoveries and inventions made during
the course of the Sponsored Research (as defined in Appendix 1 hereto), as
contemplated by this Agreement, are of mutual interest and benefit to the
University and to the Sponsor, will further instructional and research
objectives of the University in a manner consistent with its status as a
not-for-profit tax-exempt educational institution, and may constitute benefits
for both the Sponsor and the University (including, without limitation, the
Medical College) through inventions, improvements, and discoveries;
NOW THEREFORE, in consideration of the premises and mutual
covenants herein contained, the parties hereto agree to the following:
[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS. OMITTED TEXT IS INDICATED BY A "*".
1. DEFINITIONS
Capitalized terms used in this Agreement and set forth in Appendix
1 hereto shall have the meanings set forth in such Appendix 1.
2. SCOPE AND PERFORMANCE OF WORK
The University shall commence the performance of the Sponsored
Research on the Effective Date, and, concurrently with compliance by Sponsor
with all terms (including payment terms) of this Agreement, agrees to use
reasonable efforts to perform the Sponsored Research in accordance with the
terms and conditions of this Agreement.
3. PRINCIPAL INVESTIGATORS
3.1 SUPERVISION OF THE SPONSORED RESEARCH
As described in the Crystal Appointment Letter, Dr. Crystal and the
Chairman shall jointly supervise the Sponsored Research. Clinical trials with
respect to the Sponsored Research may not take place at the University
(including the Medical College), at affiliated hospitals, clinics, or other
institutions affiliated with the Medical College, under the direction of the
Principal Investigators. Clinical trials at the University (including the
Medical College), at affiliated hospitals, clinics, or other institutions
affiliated with the Medical College, if any, will take place entirely under the
supervision of independent investigators who are not and have not been
associated with the Sponsored Research. The parties hereto acknowledge and agree
that the Crystal Appointment Letter has been approved by the Medical College,
the University, The New York Hospital, and all applicable internal review boards
of such bodies, including, without limitation, those charged with responsibility
for administration of the University's conflict of interest policies, as of the
date of this Agreement, subject, however, to any changes in such approvals and
policies as the University or such other entities or boards may determine to be
necessary or advisable.
3.2 CHANGE IN PRINCIPAL INVESTIGATORS
In the event that Dr. Crystal dies, becomes disabled such that he
cannot continue his employment at the Medical College, terminates his employment
at the Medical College, or his employment at the Medical College is otherwise
terminated, either party to this Agreement shall have the option to terminate
this Agreement and the Sponsored Research in the manner provided in Section 8.
If Xx. Xxxxxxx dies, becomes disabled such that he cannot continue his
employment at the Medical College, terminates his employment at the Medical
College, or his employment at the Medical College is otherwise terminated, or
otherwise is unable or unwilling to continue to serve as co-Principal
Investigator with respect to the Sponsored Research, the successor to Xx.
Xxxxxxx as Chairman shall serve as co-Principal Investigator with Dr. Crystal,
unless the University shall have designated another member of its faculty
reasonably acceptable to Sponsor and to Dr. Crystal to serve as the co-Principal
Investigator with Dr. Crystal; provided, however, that if such Chairman or other
faculty member has any consulting or other commercial relationship with a
competitor of
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Sponsor in the gene therapy field, the University, upon notice of objection from
Sponsor, shall designate another member of its faculty, reasonably acceptable to
Sponsor and Dr. Crystal, without such relationship, to serve as co-Principal
Investigator.
4. PERIOD OF PERFORMANCE
The period of performance under this Agreement will terminate on
April 1, 2004, unless earlier terminated pursuant to this Agreement or extended
by written agreement of the parties.
5. PAYMENTS
5.1 SPONSOR PAYMENTS
The Sponsor agrees to make payments to the University (on behalf of
the Medical College) for certain costs of the Sponsored Research in accordance
with the payment schedule attached as Exhibit B hereto ("Sponsor Payments"),
subject to and in accordance with the terms of this Agreement. Sponsor Payments
shall be used over the term of this Agreement for the rental of space for Dr.
Crystal's laboratory, the purchase or rental of the substantial portion of the
equipment in such laboratory, a portion of Dr. Crystal's salary from the
University, general research support for preclinical feasibility projects, and
related matters, including support of other members of Dr. Crystal's laboratory
(all of whom will be employees of the University). The aggregate amount of the
Sponsor Payments shall be One Million Three Hundred Twenty Thousand Dollars
($1,320,000), unless the parties agree otherwise pursuant to Section 5.2. All
checks (or electronic funds transfers) shall be made payable to Cornell
University Medical College and sent to the address specified in Section 19.6.
Within ninety (90) days after termination of this Agreement, the University
shall submit a final financial report setting forth costs incurred. The report
shall be accompanied by a check in the amount, if any, of the excess of Sponsor
Payments received by the University over costs actually incurred by or on behalf
of the University in connection with the Sponsored Research.
5.2 ADDITIONAL PAYMENTS
It is agreed to and understood by the parties that the aggregate
amount of the Sponsor Payments is an estimate of the cost of the Sponsored
Research, but that the Sponsor shall not be liable for any payments or costs in
excess of the Sponsor Payments unless the Sponsor shall have previously agreed
in writing to provide additional funds. Funding for work to be performed during
a period beyond that set forth in Section 4, or for work in addition to the
Sponsored Research, shall be agreed to by the Sponsor and the University in
writing prior to the initiation of any such work.
5.3 UNIVERSITY BOOKS AND RECORDS
The University shall maintain records and books of account relating
to this Agreement in accordance with its normal course of business, University
Policies, and prevailing University accounting practices, and shall make such
records and books available to Sponsor upon reasonable notice during normal
business hours, but not more frequently than once every four (4) months.
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The University shall maintain scientific records that will properly
reflect all work done, and data and results achieved in the performance of the
Sponsored Research (including all data in the form required under any applicable
governmental regulations) in a manner sufficient to establish the dates of first
conception and reduction to practice of any inventions.
5.4 SPONSOR PAYMENTS
Any funds paid to the University pursuant to the Prior which were not expended as of the Effective Date hereof shall
be used to support the Sponsored Research subject to this Agreement. Such funds
shall be additional to the payments due pursuant to Section 5.1, but otherwise
shall be treated as Sponsor Payments for all purposes of this Agreement.
5.5 OTHER FUNDS
The University shall not use funds from any commercial third party
to support any aspect of the Sponsored Research without the prior written
consent of Sponsor.
6. INVENTIONS AND PATENTS
The Medical College shall disclose all Sponsored Research
Intellectual Property Rights to the Sponsor as promptly as practicable upon
receipt of such disclosure, but in no event later than * after the inventor
discloses it in writing to the Medical College personnel responsible for patent
matters. The Principal Investigators shall ensure that all such Sponsored
Research Intellectual Property Rights are promptly disclosed to the Medical
College in writing. The disclosure to the Sponsor shall be in the form of a
written report and shall identify the inventor(s) and this Agreement as being
that under which such invention was made. Such report shall be sufficiently
complete in technical detail to convey a clear understanding, to the extent
known at the time of the disclosure, of the nature, purpose, operation, and the
physical, chemical, biological, or electrical characteristic of the invention.
To afford the parties a reasonable opportunity to preserve their intellectual
property rights, without the parties' written consent neither the Medical
College nor the Sponsor shall disclose such Sponsored Research Intellectual
Property Rights to third parties for at least * after the date of such
disclosure to the Sponsor pursuant to this Section 6; provided that during such
* period and thereafter the Sponsor may disclose such Sponsored Research
Intellectual Property Rights to a corporate partner of Sponsor which is entitled
to a sublicense of all or part of the Sponsored Research Intellectual Property
Rights, if such corporate partner and Sponsor have a written agreement of
confidentiality consistent with the provisions hereof. Any disclosures made
pursuant to this Section 6 shall also comply with Section 10 hereof with respect
to any proposed publication, sale, or public use of the invention and shall
disclose whether a manuscript describing the invention has been prepared and is
proposed to be submitted for publication or presentation. Title to reported
inventions will be held in accordance with Section 16.1. Within * of receipt of
the invention report, the Sponsor shall notify the University, in writing, that
it elects to license such reported invention to the extent permitted by, and in
accordance with the terms of, the License Agreement. Notwithstanding this
Section 6 or any other provision of this Agreement, however, except to the
extent the same are included within Sponsored Research Intellectual Property
Rights, the parties agree that this Agreement does not authorize or compel the
disclosure to the Sponsor of information
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regarding research designs, methods, proposals, findings, or similar information
or data of investigators (or other University employees) not employed in Dr.
Crystal's laboratory and under the joint supervision of Dr. Crystal and the
Chairman (even though the Sponsor's funds may have been used to provide
ancillary noninventive services or equipment to such inventor or other
employee).
7. PROPRIETARY INFORMATION
The Medical College's acceptance and use of any proprietary
information or proprietary biological materials that may be supplied by the
Sponsor in the course of this research project shall be subject to the
following:
(i) The Sponsor shall xxxx or designate in writing the
information or biological materials as being proprietary to the Sponsor or,
where appropriate, to a sublicensee of Sponsor.
(ii) The Medical College retains the right to refuse to accept
any such information or biological materials that it does not consider to be
essential to the completion of the Sponsored Research or that it believes to be
improperly designated, for any reason.
(iii) Where the Medical College does accept such information, it
agrees to use reasonable efforts not to publish or otherwise reveal the
information to others outside the Medical College without the permission of the
Sponsor, unless the information has already been published or disclosed, or the
information has already been independently developed, in each case by third
parties or is or are required to be disclosed or delivered by order of a court
of law or regulatory agency, provided that the Medical College seeks
confidential treatment or protective order prior to such disclosure.
(iv) Where the Medical College does accept such biological
materials, their use shall be subject to the terms of the Material Transfer
Agreement entered by Sponsor and the Medical College effective December 19, 1996
(the "Material Transfer Agreement"), a copy of which is attached hereto as
Exhibit C.
8. TERMINATION
8.1 TERMINATION EVENTS
This Agreement may be terminated (prior to the expiration of its
term pursuant to Section 4) at any time by one party, upon written notice to the
other party, upon the occurrence of any of the following events:
(i) either party may terminate the Agreement if Dr. Crystal
dies, becomes disabled such that he cannot continue his employment at the
Medical College, terminates his employment at the Medical College, or his
employment at the Medical College is otherwise terminated;
(ii) either party may terminate the Agreement if, in the
reasonable judgment of the terminating party, termination is necessitated by
reason of a change in Laws; provided, however, that
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the Sponsor shall not use as a ground of termination such a change which could
be cured by a revision of Dr. Crystal's relationship with the Sponsor;
(iii) a party may terminate the Agreement if it has a reasonable
basis to believe that the other party has engaged in unlawful, unethical, or
seriously inappropriate conduct such that continued performance of the Agreement
would affront legitimate interests of the terminating party; or
(iv) a party may terminate the Agreement if the other party has
committed a material breach of the terms of this Agreement or the License
Agreement and has failed to remedy such breach within ten (10) days in relation
to a payment-related breach, and thirty (30) days in relation to other breaches,
following written notice thereof. For purposes of this Section 8, a failure by
the Sponsor to make any payment required pursuant to Section 5 shall be deemed a
material breach.
(v) In the event that a party intends to terminate the Agreement
under Section 8.1(ii), (iii) or (iv), the party shall give written notice to
that effect to the other party, which notice shall effect forthwith suspension
of future performance of the Agreement. The party so notified may initiate
arbitration under Section 19.5, by filing a request for arbitration with the
American Arbitration Association, not later than ten (10) days thereafter, and
termination shall occur if (a) arbitration is not so initiated, or (b) the
arbitrator finds that termination was reasonable.
8.2 TERMINATION CONSEQUENCES
In the event of early termination of this Agreement by the Sponsor
pursuant to Section 8.1, or by the University pursuant to Section 8.1(ii),
(iii), or (iv), the Sponsor shall remit to the University funds in payment of
(a) all internal and external costs and non-cancelable obligations, including
future costs and obligations, incurred as of the date of termination by the
University incident to the Sponsored Research (including, without limitation,
rent, personnel costs, facilities costs, and other costs) until such time as the
University, exercising its best efforts, shall eliminate such costs (or utilize
such personnel and facilities in other endeavors), and (b) any other amounts
that have accrued under this Agreement as of the date of such termination. With
respect to all payments by the Sponsor required by this Section 8.2, in no event
shall the liability of the Sponsor for Sponsor Payments in connection with the
Sponsored Research exceed Six Hundred Sixty Thousand Dollars ($660,000) or such
other amount as the parties hereto have agreed upon pursuant to Section 5. Any
and all Sponsored Research Intellectual Property Rights conceived or reduced to
practice or otherwise developed prior to the effective date of such termination
shall remain subject to the terms of the License Agreement, which shall remain
in effect until and unless terminated under its terms.
9. PUBLICITY
The parties acknowledge their mutual intention to announce major
scientific discoveries to the public on a prompt and cooperative basis,
consistent with the terms of this
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Section 9 and other provisions of this Agreement. The parties agree that neither
the University nor any employee thereof shall in any way promote, or participate
or be used or referred to in connection with the promotion of the Sponsor or any
of Sponsor's products, securities, or marketing efforts, and that neither party
shall use the existence or terms of this Agreement, any results of the Sponsored
Research, or the name of the other party (or any employee or affiliate thereof)
in any public disclosure, advertising, news release, or other statement that is
or may become public or available to a third party, in each case except as and
to the extent (i) required by Laws (including Securities Laws), (ii) permitted
by Section 10, (iii) permitted by Section 6, or (iv) with the prior written
consent of, and only to the extent approved by, the other party (which consent
shall, in the case of the University, be signed by the Xxxx of the Medical
College and by University counsel). Notwithstanding the above, once a particular
disclosure has been approved, either party may make disclosures which do not
differ materially therefrom without any further consents of the other party;
provided, however, that the disclosing party shall give prior notice of
subsequent disclosures which, in addition to the information contained in the
earlier disclosure, contains information subject to this Agreement which has not
been previously disclosed; and provided, further, that after approval of a
disclosure has been given, the approving party may at any time with written
notice to the other party withdraw its approval of a particular disclosure prior
to its release, which withdrawal shall be effective immediately. With respect to
the requirements of Securities Laws, counsel to the underwriters or placement
agents of Sponsor's securities may advise Sponsor that Sponsor may be required
to disclose material terms of this Agreement and the License Agreement. In such
event, Sponsor shall so notify the University within a reasonable time prior to
such disclosure, and the University shall have the opportunity to dissuade such
counsel of the need for such disclosure. With respect to any such prospective
disclosure, Sponsor shall use its reasonable efforts, unless the University
otherwise consents, not to use the name of the University, and to seek
"Confidential Treatment" under applicable Securities and Exchange Commission
rules and procedures with respect to any terms of this Agreement and the License
Agreement for which the University wishes to obtain confidential treatment.
Laboratory personnel, including Dr. Crystal, will not engage in solicitation of
the sale of securities of Sponsor, but may, to the extent that doing so does
not, in the University's judgment, unreasonably interfere with their work,
participate in connection with the due diligence investigations of potential
investors and underwriters of securities of Sponsor in describing the Gene
Therapy research and may, to the same extent, respond to questions from such
persons.
10. PUBLICATIONS
10.1 RIGHT TO PUBLISH; PROCEDURES
The University shall have the right, subject to compliance with the
provisions of this Agreement, at its discretion to release information or to
publish any material resulting from the Sponsored Research, and the Sponsor
agrees that the Principal Investigators and other researchers engaged in the
Sponsored Research shall be permitted to present at national, regional and other
professional meetings and symposia, and to publish in journals, theses or
dissertations, or other materials of their own choosing, the progress and
results of the Sponsored Research. The University agrees to furnish the Sponsor
with a copy of any proposed written publication at least * in advance of the
submission of such proposed publication or other written description of research
results to a journal, editor or other third party, in order for the Sponsor to
have an opportunity to begin to seek appropriate legal protection for the
subject matter contained in the proposed publication or
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description. If due to a valid business reason or a reasonable belief by the
non-disclosing Party that a disclosure relating to the Sponsored Research
contains subject matter for which a patent should be sought, then prior to the
expiration of the * period, the non-disclosing party shall so notify the
disclosing party, who shall then delay public disclosure of the information for
an additional period of up to * to permit the preparation of filing of a patent
application on the subject matter to be disclosed or other action to be taken.
The Sponsor shall cooperate with the University and the Foundation, at their
request, in the patenting process.
10.2 ACKNOWLEDGMENT OF THE SPONSOR
The Sponsor will be given full credit and acknowledgment for the
support provided to the University in any publication resulting from the
Sponsored Research, to the extent Sponsor consents to such credit or
acknowledgment, or such publication requires the same, or the University desires
to list Sponsor in any reports of University's sponsored research projects.
11. REPORTS AND CONFERENCES
11.1 PROGRESS AND FINAL REPORTS TO THE SPONSOR
The University shall furnish the Sponsor letter reports during the
term of this Agreement summarizing the work conducted with respect to the
Sponsored Research, no more frequently than once every *, but at least once per
year at Sponsor's request. A final written report setting forth and detailing
the accomplishments and significant findings shall be submitted by the
University within * of the termination of this Agreement.
11.2 MEETINGS BETWEEN THE UNIVERSITY AND THE SPONSOR
During the term of this Agreement, representatives of the
University will meet with representatives of the Sponsor at times and places
mutually agreed upon to discuss the progress and results, as well as ongoing
plans, or changes therein, of the Sponsored Research to be performed hereunder.
The Sponsor shall reimburse the University for all reasonable out-of-pocket
expenses incurred by the University and University employees in connection with
any such meetings that are held at locations other than the Medical College.
12. CHANGES
Anything in this Agreement to the contrary notwithstanding, Sponsor
and the Medical College may at any time amend or extend the Sponsored Research
by mutual written agreement (which, in the case of the Medical College, shall be
signed by the Xxxx of the Medical College), and incorporate such amendment as an
attachment and exhibit to this Agreement. Such changes may include, but are not
limited to, (i) revising (including, without limitation, additions to or
deletions from) the work included in the Sponsored Research, (ii) revising the
period or schedule of performance under Section 4 or as set forth in Exhibit B,
or (iii) increasing or decreasing the Sponsor Payments. Upon any such change,
the parties shall immediately use their best efforts to take all necessary steps
to comply therewith.
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13. SPONSOR MATERIALS
Upon the request of the Medical College, the Sponsor agrees to
accept the return of unused portions of any drugs, chemicals, and other
materials supplied by the Sponsor in connection with the Sponsored Research or
Biological Materials provided pursuant to the Material Transfer Agreement
("Sponsor Materials"), including the containers in which the Sponsor Materials
are shipped, provided that the Sponsor Materials and containers are properly
labeled. The Sponsor agrees to furnish the Medical College with sufficient
information regarding all such Sponsor Materials to permit reasonable
interpretation of the results obtained in the Sponsored Research and to identify
precautions needed to help protect the health and safety of personnel using the
Sponsor Materials. The Sponsor agrees to indemnify and defend the University
(including, without limitation, the Medical College), affiliated hospitals,
clinics, and other institutions affiliated with the Medical College, and the
officers, trustees, agents, and employees of each of them, and hold them
harmless from any and all injury, illness, death, property damage, claim,
lawsuit, judgment thereon, or cause of action that results either in whole or in
part from the use of the Sponsor Materials (each a "Claim"), not arising from
the indemnified party's gross negligence or willful misconduct, if such use was
pursuant to Sponsor's directions or was reasonable under the circumstances. The
University shall promptly notify Sponsor of any such Claim for which the
University intends to claim indemnification, and cooperate fully with Sponsor
and its attorneys in the investigation, conduct, defense and settlement of any
such Claim.
14. INDEMNIFICATION
The Sponsor agrees to indemnify and defend the University
(including the Medical College), and affiliated hospitals, clinics, or other
institutions affiliated with the Medical College, and the officers, trustees,
agents, and employees of each of them, and hold them harmless from any and all
costs, expenses, and damages, not arising from the indemnified party's gross
negligence or willful misconduct, arising out of any injury, illness, death,
property damage, claim, lawsuit, judgment thereon, or cause of action (each, a
"Claim") to the extent that these result either in whole or in part from action
or inaction on the part of, or on behalf of, the Sponsor in connection with the
conduct of the Sponsored Research. The University shall promptly notify Sponsor
of any such Claim for which the University intends to claim indemnification, and
cooperate fully with Sponsor and its attorneys in the investigation, conduct,
defense and settlement of any such Claim.
15. INSURANCE
Within thirty (30) days after the date of this Agreement, the
Sponsor shall provide to the University evidence that the Sponsor has liability
insurance of at least five million dollars ($5,000,000). Such evidence shall be
in the form of a certificate of insurance or, in the case of self-insurance, a
letter accompanying the Sponsor's audited financial statements in which an
authorized official of the Sponsor certifies that the Sponsor has sufficient
assets to cover potential costs and losses that might arise in connection with
the Sponsor's obligations hereunder.
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16. TITLE TO EQUIPMENT, RESEARCH DATA AND INTELLECTUAL PROPERTY RIGHTS
16.1 PROPERTY OF THE UNIVERSITY
Title to all (a) equipment, laboratory animals, and other materials
or property purchased or manufactured in the performance of the Sponsored
Research (collectively, "Research Equipment") funded under this Agreement and
research data (including, without limitation, data contained in any publication
made pursuant to Section 10 hereof and resulting from the Sponsored Research)
shall vest in the University and shall remain the property of the University in
a manner consistent with University Policies and customs with respect thereto,
and (b) any intellectual property first conceived or discovered in the
performance of the Sponsored Research shall vest in accordance with the
then-prevailing United States laws of inventorship. The Sponsor shall have the
right to receive and use, subject to the applicable terms of the License
Agreement, breeding pairs of animals and other biological materials developed in
connection with the Sponsored Research and copies of any research data relating
to the Sponsored Research on reasonable request and notice, and upon
reimbursement by the Sponsor of the University's reasonable costs incurred in
connection with copying and providing such research data, animals and other
biological materials to the Sponsor. Copyright to materials, including computer
software, first created during the performance of the Sponsored Research work
funded under this Agreement shall vest in accordance with the University's
copyright policy, and the Sponsor shall have no rights thereto, except to the
extent provided in the License Agreement.
16.2 GOVERNMENT RIGHTS
An agency of the U.S. Government may have certain rights in an
invention first conceived or discovered during the performance of the Sponsored
Research work funded under this Agreement. The University will use reasonable
efforts to perfect its ownership in any invention made with funds provided by
any government agency and to comply with applicable law in maintaining such
rights and to make available to the Sponsor any rights in such invention.
17. ACKNOWLEDGMENT AND UNDERTAKING RESPECTING DR. CRYSTAL
Sponsor hereby acknowledges that it has been informed of the terms
and conditions of the employment of Dr. Crystal at the Medical College, as set
forth in the Crystal Appointment Letter (including, without limitation,
paragraphs 1A-N and the other provisions of Appendix A thereto), and Sponsor
agrees that it will use reasonable care such that nothing requested by Sponsor
of Dr. Crystal will violate any of the duties or obligations of Dr. Crystal to
the University. Nothing in this Agreement or in the License Agreement, or in any
agreement, undertaking, or understanding to which the Sponsor is party, shall
impair the rights of the University or the Principal Investigators to determine
the nature of performance of Sponsored Research, or Dr. Crystal's other research
at the University, in a manner consistent with University Policies. The
University undertakes to notify Sponsor of any changes in the terms and
conditions of Dr. Crystal's employment material to Sponsor, in the University's
reasonable judgment.
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18. ENFORCEMENT OF UNIVERSITY RULES AND THIS AGREEMENT
The University shall use its best efforts to enforce observance by
all University personnel engaged in the Sponsored Research with respect to
University Policies. The Sponsor shall cooperate with University in complying
with University Policies and applicable Laws. The University shall use
reasonable efforts to enforce observance, by all University personnel engaged in
the Sponsored Research, of this Agreement.
19. OTHER PROVISIONS
19.1 CONTINUED APPLICABILITY OF CRYSTAL APPOINTMENT LETTER
Nothing in this Agreement shall be deemed to modify or supersede
the Crystal Appointment Letter (including, without limitation, paragraphs 1A-N
and the other provisions of Appendix A thereto), all of which the parties
acknowledge.
19.2 NO CONFLICTS
The Sponsor represents and covenants that there are no obligations,
undertakings, representations, warranties, covenants, conditions, rights,
recitals or other statements by or applicable to the University, Dr. Crystal, or
the Sponsored Research (collectively, "Terms") contained in any of its
arrangements, understandings or agreements with Dr. Crystal (collectively, the
"Other Arrangements") that Conflict with any Terms of this Agreement. For
purposes of this Agreement, the word "Conflict" shall include, without
limitation, any case in which (1) performance of a Term in one agreement would
result in a breach or violation of any present or future agreement or
obligation, written or oral, in connection with a Term in another agreement, and
(2) a Term in one agreement could not be carried out as a legal and/or practical
matter consistently with a Term of another agreement absent an amendment to,
waiver of, or potential liability under, such other agreement. The Sponsor
covenants and agrees that it will not knowingly cause or permit any Conflict to
exist between a Term of this Agreement, on the one hand, and a Term of any Other
Agreement, on the other hand, and that, insofar as any Conflict exists at any
time, the Sponsor will seek to cause such Conflicting Term in the Other
Agreement to be waived, amended or rendered null and void, to the extent
necessary to remedy the Conflict.
19.3 NO AGENCY
Neither party is authorized or empowered to act as an agent for the
other for any purpose. Neither party shall, on behalf of the other, enter into
any contract, warranty, or representation as to any matter. Neither party shall
be bound by the acts or conduct of the other.
19.4 FORCE MAJEURE
Neither the University nor the Sponsor shall be liable for any
failure to perform as required by this Agreement, to the extent such failure to
perform is caused by any reason beyond the control of the University or the
Sponsor, as applicable, or by reason of any of the following occurrences, labor
disturbances or labor disputes of any kind, accidents, failure of any
governmental approval required for full performance, civil disorders or
commotions, acts of aggression, floods,
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earthquakes, acts of God, energy or other conservation measures, explosion,
failure of utilities, mechanical breakdowns, material shortages, disease or
other such occurrences (collectively, "Force Majeure Conditions"); provided,
however, that nothing in this Section 19.4 shall excuse any delay or failure on
the part of the Sponsor to make the Sponsor Payments on a timely basis pursuant
to the terms of this Agreement. In the event of any delayed or excused
performance pursuant to this Section 19.4, the party or parties whose
performance was delayed or excused shall use reasonable efforts to perform as
promptly and fully as practicable, and the parties shall take all other
reasonable and cooperative steps to effectuate the transactions contemplated by
this Agreement. If one or more Force Majeure Conditions cause the University to
be unable to conduct Sponsored Research for at least two consecutive weeks, the
obligation of Sponsor to make Sponsor Payments shall be diminished by twelve
thousand six hundred ninety two dollars and thirty cents ($12, 692.30) for each
such week. In the event that there are more than twelve (12) consecutive such
weeks, either party may elect to terminate the Agreement under the provisions of
Section 8.1(iv), as if such circumstance were a material breach thereunder and
as if the University were the terminating party thereunder.
19.5 ARBITRATION
Any dispute arising out of or relating to this Agreement or any
breach of this Agreement, including, without limitation, any disagreement by the
terminated party with respect to termination of this Agreement pursuant to
Sections 8.1(ii), (iii) or (iv) shall be submitted to and determined in binding
arbitration, which shall be conducted in accordance with the then-current rules
and procedures of the American Arbitration Association, subject to the
provisions of this Section 19.5. The arbitration shall be conducted before and
by a single neutral arbitrator with relevant expertise selected by the parties.
If the parties have not selected an arbitrator within thirty (30) days after
delivery to the other party of one party's written demand for arbitration, the
arbitrator shall be selected by the American Arbitration Association pursuant to
then-current rules of that Association. The arbitrator shall have authority to
fashion such just, equitable and legal relief as he, in his sole discretion, may
determine, including, without limitation, specific performance, injunctive or
other equitable relief. Each party shall bear all its own expenses of
arbitration and shall equally share the costs (i.e., arbitrators fees and
administrative charges) of conducting the arbitration. All arbitration
proceedings shall be conducted in New York, New York. The parties shall abide by
the terms of any arbitration award as final and binding under the prevailing
rules of said Association, and judgment upon the award may be had in any court
having jurisdiction. The duty to arbitrate shall survive the cancellation or
termination of this Agreement.
19.6 NOTICES
All notices, demands, requests or other communications which may be
or are required to be given, served, or sent by the University or the Sponsor
pursuant to this Agreement shall be in writing and shall be hand delivered
(including delivery by courier), sent by recognized overnight courier service,
mailed by first-class, registered or certified mail, return receipt requested,
postage prepaid, or transmitted by telegram, telex or facsimile transmission,
addressed as follows:
(i) If to the University:
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Senior Associate Xxxx for Research
and Sponsored Programs
Cornell University Medical College
Room A131
0000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy (which shall not constitute notice) to:
Office of University Counsel
Cornell University Medical College
0000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(ii) If to the Sponsor:
President
GENVEC, INC.
00 Xxxx Xxxxxxx Xxxx Xxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000
With a copy to: Vice President, Corporate Development
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Notwithstanding the foregoing, each party may designate by notice in writing a
new address or facsimile number to which any notice, demand, request, or
communication may thereafter be so given, served, or sent. Each notice, demand,
request, or communication which shall be delivered, sent, mailed, or transmitted
in the manner described above, shall be deemed sufficiently given, served, sent,
or received for all purposes at such time as it is delivered to the addressee
(with an affidavit of personal delivery, the return receipt, the delivery
receipt, or (with respect to a telex or facsimile) the answer back being deemed
conclusive but not exclusive evidence of such delivery) or at such time as
delivery is refused by the addressee upon presentation.
19.7 SURVIVAL
It is the express intention and agreement of the parties that all
covenants, agreements, statements, representations, warranties and indemnities
made in this Agreement shall survive the execution and delivery of this
Agreement.
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19.8 WAIVER
Neither the waiver by either party of a breach of or a default
under any of the provisions of this Agreement, nor the failure of a party, on
one or more occasions, to enforce any of the provisions of this Agreement or to
exercise any right, remedy, or privilege hereunder shall thereafter be construed
as a waiver of any subsequent breach or default of a similar nature, or as a
waiver of any such provisions, rights, remedies, or privileges hereunder.
19.9 EXERCISE OF RIGHTS
No failure or delay on the part of a party in exercising any right,
power, or privilege hereunder and no course of dealing between the parties shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, power, or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, power, or privilege. The rights and
remedies herein expressly provided are cumulative and not exclusive of any other
rights or remedies which a party would otherwise have at law or in equity or
otherwise.
19.10 BINDING EFFECT
Subject to the provisions hereof restricting assignment, this
Agreement shall be binding upon and shall inure to the benefit of the parties
and their respective successors and permitted assigns.
19.11 ASSIGNMENT
This Agreement shall not be assigned by either party without the
prior written consent of the other party; provided, however, that the Sponsor
may assign this Agreement upon a merger or sale of all or substantially all of
the Sponsor's assets to the Sponsor's successor in business if such assignment
is approved by the University, such approval not to be unreasonably withheld.
Notwithstanding the foregoing, no assignment of this Agreement shall be valid
unless and until the Sponsor and the proposed assignee sign and deliver to the
University a written agreement, reasonably satisfactory to the University,
pursuant to which such assignee assumes and agrees to be fully responsible for
all obligations and liabilities of the Sponsor under this Agreement.
19.12 ENTIRE AGREEMENT
This Agreement and the License Agreement (including all exhibits
and appendices to each such agreement) and the Crystal Appointment Letter
contain the entire agreement between the parties with respect to the
arrangements contemplated hereby and thereby and supersede any and all prior
understandings or agreements between the parties with respect to such
arrangements; provided, the terms of the Material Transfer Agreement shall not
be amended or effected in any way by the execution of this Agreement or the
License Agreement. No amendments or changes to this Agreement shall be effective
unless made in writing and signed by the Xxxx of the Medical College and
authorized representatives of the Sponsor. All correspondence regarding terms of
this Agreement shall be sent as specified in Section 19.6.
19.13 PRONOUNS
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All pronouns and any variations thereof shall be deemed to refer to
the masculine, feminine, neuter, singular, or plural, as the identity of the
person or entity may require.
19.14 HEADINGS
Article and Section headings contained in this Agreement are
inserted for convenience of reference only, shall not be deemed to be a part of
this Agreement for any purpose, and shall not in any way define or affect the
meaning, construction of scope of any of the provisions hereof.
19.15 GOVERNING LAW
This Agreement, the rights and obligations of the parties hereto,
and any claims or disputes relating thereto, shall be governed by and construed
in accordance with the laws of the State of New York (but not including the
choice of law rules thereof).
19.16 NONDISCRIMINATION
The University and the Sponsor shall not discriminate against any
employee or applicant for employment because of race, religion, national origin,
sex, age, or physical limitation.
19.17 EXECUTION IN COUNTERPARTS
This Agreement may be executed in as many fully executed
counterparts as may be convenient.
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IN WITNESS WHEREOF, the parties and persons named below have executed
this Agreement, or caused this Agreement to be executed on their behalf, as of
the date first set forth above.
GENVEC, INC. CORNELL UNIVERSITY, FOR ITS
MEDICAL COLLEGE
By: /s/ Xxxx Xxxxxxx, Ph.D. By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------- -------------------------------
Xxxx Xxxxxxx, Ph.D.
President
Acknowledged and agreed as to roles as
Principal INVESTIGATORS:
Xxxxxx X. Xxxxxxx, M.D.
Chairman of the Department of Medicine of the Medical College
By: Xxxxx X. Xxxxxxx, M.D.
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