Exhibit 10.1
GENES TO LEADS(R) AGREEMENT
CENGENT'S LEAD IDENTIFICATION PROGRAM IN DRUG DISCOVERY
BASIC TERMS
The basic terms of this Genes-to-Leads(R) Agreement
("AGREEMENT") are:
1. Effective Date of Agreement: June 7, 2004.
2. Parties (collectively the "PARTIES" and individually a "PARTY"):
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(a)Cengent Therapeutics Inc., a California corporation.
(b)Company: AngioGenex, a New York corporation.
3. Company's Protein Target: Id1/E47 complex.
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The Company shall provide Cengent with the coordinates of the relevant
crystal structures of the protein target and any other relevant complexes.
4. Expected Delivery Date by Cengent: approximately 120 days after the
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effective date of this agreement.
5. Basic Services Fee: $75,000, payable on the terms and conditions described
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in Paragraph (c). This fee covers FTE charges, modeling costs, supercomputer
time, and incidentals. The Basic Services Fee does not include the cost to
acquire, synthesize or optimize compounds, establish or screen compounds in
assays or any license fees, which may be required to screen third party
proprietary chemical libraries.
6. Lead Identification Compound Fees:
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(a)Lead Identification List Fee: $75,000, payable on the terms and
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conditions described in Paragraph 11(a).
(b)Lead Identification Activity Fees: $1,000 per active compound in a
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primary screen, $3,000 per active compound in a primary and secondary screen,
and $5,000 per active compound in a primary, secondary, and tertiary screen, up
to a maximum of $150,000 under this Paragraph , payable on the terms and
conditions described in Paragraph .
7. Cengent and Company have separately signed a non-disclosure agreement that
continues to apply to them even after signing this Agreement.
8. Company will provide to Cengent the crystal structures, determined by X-ray
crystallography, of the Id1/E47 heterodimer and Id1/Id1 homodimer, and (a)
Cengent will promptly thereafter undertake a structure audit of Company's
Protein Target to confirm that Company's Protein Target will be accepted by
Cengent into its Genes-to-Leads{reg-trade-xxxx} program; (b) Cengent shall send
Company written notice (e-mail shall constitute written notice) whether
Company's Protein Target is so accepted, and (c) if so accepted, Cengent will
provide the Cengent Basic Services described below and Company shall, within
five days of that notice, pay Cengent the Basic Services Fee.
9. The Standard Terms and Conditions attached as Exhibit C are incorporated
into this Agreement by this reference to the same effect as if they were fully
set forth in this Agreement.
CENGENT'S BASIC SERVICES
10.Cengent will determine and define the DynaPharm{reg-trade-xxxx} templates
(virtual constructs, derived from dynamic simulations of the Company's protein
target) and search queries for drug screening of Company's Protein Target.
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11.Cengent will use its in silico chemical library of publicly available
chemical compounds, and computationally search the said database of compounds.
The goal of the search and screening will be to determine the compounds more
likely to have activity against Company's Protein Target and thereby narrow the
list of potentially appropriate and effective compounds so as to provide a
smaller number of starting points for possible lead optimization and the
foundation for composition-of-matter or use patent coverage with leads that can
be validated with wet chemistry. By the Expected Delivery Date, Cengent will
complete a three dimensional ("3-D") structure analysis of Company's Protein
Target and deliver to Company the following (the "CENGENT DELIVERIES"):
(a)a list of molecules (compounds) identified by Cengent's proprietary
DynaPharm{reg-trade-xxxx} methodology and in silico screening (the "CANDIDATE
COMPOUNDS") for which Company shall pay Cengent the Lead Identification List
Fee.
12.Cengent's experience is that its Genes-to-Leads{reg-trade-xxxx} program
typically yields 200 to 300 "drug-like" compounds, in silico, within 2 to 4
months and that 2% to 24% of the compounds have exhibited an IC50 < 30uM in
vitro. However, Cengent provides Company no assurance whatsoever that Cengent
will have similar success with respect to Company's Protein Target or Candidate
Compounds.
COMPANY'S BASIC OBLIGATIONS
00.Xxxxxxx shall undertake lab-based screening of the Candidate Compounds,
including synthesizing and/or otherwise acquiring Candidate Compounds,
developing in vitro and cell-based assays, and running those Candidate
Compounds through assays. Attached as Exhibit A is the screening protocols to
be used in the study. Company will complete the screening within 120 days of
its receipt of the Candidate Compounds list (the "SCREENING COMPLETION DATE")
except for those compounds that require synthesis in which case these compounds
will be tested within 30 days of receipt of compound. Attached as Exhibit B is
the success criteria to be used in determining activity of the identified
compounds. Company will provide Cengent with all screening results and shall
pay Cengent the Lead Identification Activity Fees for any compound that meets
these criteria. The selection of what chemicals among the Candidate Compounds
to test will be at the sole discretion of the Company.
00.Xxxxxxx shall, by the 30th day after the Screening Completion Date (the
"COMPANY DECISION DATE"), notify Cengent in writing which of the Candidate
Compounds, if any, Company has selected for lead optimization (the "COMPANY
SELECTION NOTICE"). Each compound so selected shall be referred to as a "LEAD
OPTIMIZATION COMPOUND" and they shall collectively be referred to as the "LEAD
OPTIMIZATION COMPOUNDS." Failure by Company to timely provide that notice means
there is no Lead Optimization Compound selected by Company.
15.(Use this paragraph for any other terms not otherwise referenced herein.)
LEAD OPTIMIZATION
00.Xxxxxxx shall, concurrent with sending the Company Selection Notice, make
the payment(s) to Cengent as indicated in Paragraph above. Also, Company shall
pay $150,000 to Cengent upon selecting by Company of a Lead Optimization
Compound or a derivative (e.g., homologs, analogs, polymorphs, isomers,
prodrugs and formulations of the Lead Optimization Compound), payable as a
number of shares of Company stock based on the most recent stock price accepted
by an independent investor in an arm's length transaction.
17.Subject to Company's timely fulfillment of the terms and conditions of this
Agreement, including the payment terms, Cengent agrees, as to each Lead
Optimization Compound, not to: (a) include the Lead Optimization Compound on
any list of compounds delivered by Cengent to any person or entity outside of
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Cengent with respect to any human therapeutic research, development or use by
that person or entity; (b) research or develop that Lead Optimization Compound
with respect to any human therapeutic commercial product that would include
that Lead Optimization Compound or a derivative as an active ingredient;
(c) disclose to anyone outside of Cengent that Company is researching and
developing the Lead Optimization Compound with respect to the Company's Protein
Target.
Intellectual Property
00.Xxxxxxx should consult with its patent counsel regarding whether: (a) a use
patent may be available for a Lead Optimization Compounds; (b) a composition-
of-matter patent is available since said compounds are generally "publicly
known;" and (c) upon Company optimizing a Candidate Compound lead, Company's
ability to file a composition-of-matter patent on the new compound if it is
novel. The ownership of any new intellectual property generated during the
course of the joint effort shall be determined based on US intellectual
property law. However, Cengent will grant, subject to the economic terms noted
above, a sole and exclusive, worldwide, license at no added cost to the Company
to any intellectual property generated in the joint effort that is ultimately
assigned to Cengent.
Communication of Progress
19.Members of the Cengent and Company technical staff will confer at least
twice a month by either face-to-face or by teleconferences during the period
of active computational screening and at other times as needed.
Cengent: COMPANY:
By: /s/ Xxxxxx X. Xxxxxx By: /s/ W. A. Garland
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Name: Xxxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxxxxx
Title: President & CEO Title: COO
Date: 5/26/04 Date: May 26, 2003
Address: 00000 Xxxxxxxxxx Xxxxx Address: 000 Xxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000 (at 48th Street)
Xxxxx 000/ 0xx Xxxxx
Xxx Xxxx, XX 00000
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EXHIBIT A TO GENES-TO-LEADS(R) AGREEMENT
COMPANY CANDIDATE COMPOUND SCREENING PROTOCOL
PRIMARY SCREEN
Overexpression of an E protein in Hela cells drives the expression of a
luciferase reporter gene by binding to E boxes engineered upstream of the
enhanced green fluorescence protein (EGFP) gene. The E proteins and the
reporter gene are introduced with a neomycin resistant gene and neoR,
luciferase+clones are selected in G418 (0.5 mg/ml). Upon introduction of a
pasmid overexpressing Id1 with a hygromycin resistance gene, neoR/hygroR clones
that have enough Id to sequester the E proteins and are therefore EGFP negative
are selected. To confirm that the loss of EGFP expression is due to Id1
expression and not a permanent silencing by other means, antisense Id1 or Id1
siRNAs are introduced and clones that re-express EGFP are selected. These
clones then represent a permanent "reporter" cell line for the identification
of compounds that when added to a solution containing the cell line interfere
with the Id1-E protein interaction and thereby reactivate EGFP which can be
monitored in a multi-well formatted assay. In this assay, inhibitory activity
is detected as an increase in green fluorescence.
SECONDARY SCREEN
Homogenous time-resolved resonance (HTRF) is a technique that allows the
measurement of interactions between two molecules in solution. The basic
principle of HTRF is that when two molecules are in close proximity, an energy
transfer from the donor to the acceptor occurs. The energy donor-acceptor pair
in HTRF is respectively europium cryptate and XL665. In the assay, 200 nM of
His-E47 is coated with 10nM of anti-His-cryptate antibody and 100nM of GST-Id1
is coated with 20nM of anti-GST-XL665 antibody. Upon excitation of cryptate at
a wavelength of 337nm, crypate emits energy at a wavelength of 620nm. If GST-
Id1 and His-E47 come into close proximity (i.e. interact with each other), this
energy emitted by cryptate gets transferred to the acceptor XL665, which re-
emits a specific long-lived fluorescence at 665nm. With this assay, Id1 was
found to interact very tightly with E47 with a KD of 1 nM in 100 mM NaCl.
although this tight affinity decreases in the presence of 300 mM NaCl. In the
assay, the GST-bound to the anti-GST-XL665 antibody is pretreated with the test
compound. Inhibitory activity is detected by diminished fluorescence when the
complex is combined with the His-E47 compex with the anti-His-cryptate
antibody.
TERTIARY SCREEN
Selected test compounds will be evaluated in the standard in vivo matrigel plug
assay. Matrigel consists of basement membrane components extracted from
Xxxxxxxxxx-Xxxx-Swarm tumor and is a liquid at 4 degrees Celsius and a solid at
37 degrees Celsius. For the in vivo test, liquid matrigel is mixed with VEGF
to induce spontaneous and aggressive angiogenesis, and the solution (0.5 mL) is
injected into the ventral regions of mice where it forms a small plug. Owing to
the presence of VEGF,endothelial cells migrate into the plug and form new blood
vessels. After 7 days, the plugs are removed and sectioned in paraffin and the
level of angiogenesis is measured after staining to visualize the endothelial
cells and vessels. The test compounds are added to the plug prior to injection
into the animal and their effect on the angiogenesis determined. An inhibitory
effect is observed as a decrease in tube formation in the plug.
Candidate Compound Screening Protocol - EXHIBIT A to Genes-to-
Leads(R) Agreement
EXHIBIT B
TO GENES-TO-LEADS(R) AGREEMENT
Success Criteria
The Candidate Compound/s shall be deemed as compounds suitable for Lead
Optimization if they have the following criteria:
Chemical Criteria:
(1)The molecular weight of the compound is 1000 Da or less.
(2)The Candidate Compound could be a peptide or a non peptide.
Biological Criteria:
(i) The Candidate Compound shall have a biological activity
(IC50) of 20 microM or less in the Primary screen.
(ii) The Candidate Compound shall have activity (IC50) of 20
microM or less in the Secondary screen.
(iii) The Candidate Compound shall have activity (ID50) of
100mg/kg or less in the Tertiary screen.
Candidate Compound Screening Protocol - EXHIBIT A to Genes-to-Leads(R)
Agreement
EXHIBIT C TO GENES-TO-LEADS{reg-trade-xxxx} AGREEMENT
STANDARD TERMS AND CONDITIONS
1. REPRESENTATIONS AND WARRANTIES
1.1.Authority. Each party represents and warrants that as of the Effective Date
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it has the full right, power and authority to enter into the Agreement and
that the Agreement has been duly executed by such party and constitutes a
legal, valid and binding obligation of such party, enforceable in accordance
with its terms.
0.0.Xx Conflicts. Each party represents and warrants that the execution,
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delivery and performance of the Agreement does not conflict with, or
constitute a breach or default under any of its charter or organizational
documents, any law, order, judgment or governmental rule or regulation
applicable to it, or any material agreement, contract, commitment or
instrument to which it is a party.
0.0.Xx Existing Third Party Rights. Each party represents and warrants that its
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obligations under the Agreement are not encumbered by any rights granted by
such party to any third parties that are or may be inconsistent with the
rights and licenses granted in the Agreement.
1.4.Intellectual Property. As used herein, the term "Intellectual Property"
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means all of the following or their substantial equivalent or counterpart in
any jurisdiction throughout the world: (i) patents, patent applications and
patent disclosures, (ii) trademarks, service marks, trade dress, trade
names, corporate names, logos and Internet domain names, (iii) copyrights
and copyrightable works, (iv) registrations and applications for any
registration for any of the foregoing and (v) trade secrets, confidential
information and inventions. Each party represents and warrants to the other
that as of the Effective Date:
0.0.0.xx is not aware of any claim made against it asserting the invalidity,
misuse, unregisterability, unenforceability or non-infringement of any
of its Intellectual Property that is the subject of the Agreement or
challenging its right to use or ownership of any of such Intellectual
Property or making any adverse claim of ownership thereof; and
0.0.0.xx is not aware of any pending or threatened claim or litigation which
alleges that its activities to date relating to the Intellectual
Property that is the subject of the Agreement have violated, or by
conducting its business as currently proposed to be conducted hereunder
would violate, the Intellectual Property rights of any other person or
third party; and
0.0.0.xx is not aware of Intellectual Property rights of any third party
that, with respect to Company's representation and warranty, validly
cover the method used to create the Company's Protein Target or, with
respect to Cengent's representation and warranty, validly cover the
method used to identify the Candidate Compounds, in each case as
contemplated under the Agreement.
1.5.Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT,
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NEITHER PARTY MAKES ANY REPRESENTATIONS NOR EXTENDS ANY WARRANTY OR
CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED
TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-
INFRINGEMENT.
2. INDEMNIFICATION
2.1.Indemnification by Company. Company shall indemnify, defend and hold
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Cengent, its affiliates and their permitted contractors and agents,
employees, officers and directors (the "Cengent Indemnitees") harmless from
and against any and all liability, damage, loss, cost or expense (including
reasonable attorneys' fees) arising out of third party claims or lawsuits
related to (a) Company's performance of its obligations under the Agreement;
(b) the manufacture, use or sale of any Product by Company and its
affiliates and their permitted licensees and sublicensees, distributors and
agents; (c) material breach by Company of any of its covenants,
representations or warranties set forth in the Agreement; or (d) claims that
the Company's Protein Target or cell lines related thereto resulted from a
process or method that infringes the Intellectual Property rights of a third
party, except to the extent such claims or suits result from the material
breach of any of the provisions of the Agreement, gross negligence or
willful misconduct of the Cengent Indemnitees. Upon the assertion of any
such claim or suit, the Cengent Indemnitees shall promptly notify Company
thereof and Company shall appoint counsel reasonably acceptable to the
Cengent Indemnitees to represent the Cengent Indemnitees with respect to any
claim or suit for which indemnification is sought. The Cengent Indemnities
shall not settle any such claim or suit without the prior written consent of
Company, unless the Cengent Indemnitees shall have first waived their rights
to indemnification hereunder. As used herein, "Product" means any commercial
product comprising a Candidate Compound or a derivative (e.g., homologs,
analogs, polymorphs, isomers, prodrugs and formulations) as an active
ingredient.
2.2.Indemnification By Cengent. Cengent shall indemnify, defend and hold
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Company, its affiliates and their permitted contractors and agents,
employees, officers and directors (the "Company Indemnitees") harmless from
and against any and all liability, damage, loss, cost or expense (including
reasonable attorneys' fees) arising out of third party claims or lawsuits
related to (a) Cengent's performance of its obligations under the Agreement;
(b) a material breach by Cengent of any of its covenants, representations or
warranties set forth in the Agreement; or (c) claims that the Candidate
Compounds resulting from a process or the method of identifying Candidate
Compounds infringes the Intellectual Property rights of a third party,
except to the extent that such claims or suits result from the material
breach of any of the provisions of the Agreement, gross negligence or
willful misconduct of the Company Indemnitees. Upon the assertion of any
such claim or suit, the Company Indemnitees shall promptly notify Cengent
thereof and Cengent shall appoint counsel reasonably acceptable to the
Company Indemnitees to represent the Company Indemnitees with respect to any
claim or suit for which indemnification is sought. The Company Indemnitees
shall not settle any such claim or suit without the prior written consent of
Cengent, unless the Company Indemnitees shall have first waived their rights
to indemnification hereunder.
0.0.Xxxxxxxxx Proceeds. Any indemnification hereunder shall be made net of any
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insurance proceeds recovered by the indemnified party; provided, however,
that if, following the payment to the indemnified party of any amount under
this Section , such indemnified party recovers any insurance proceeds in
respect of the claim for which such indemnification payment was made, the
indemnified party shall promptly pay an amount equal to the amount of such
proceeds (but not exceeding the amount of such indemnification payment) to
the indemnifying party.
3. TERM AND TERMINATION
3.1.Breach. Except for Company's payment obligations, the failure by a party
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to comply with any of the material obligations contained in the Agreement
shall entitle the other party to give notice to have the default cured. If
such default is not cured within ten (10) days after the receipt of such
notice, or diligent steps are not taken to cure if by its nature such
default could not be cured within ten (10) days, the notifying party shall
be entitled, without prejudice to any of its other rights conferred on it by
the Agreement, and in addition to any other remedies that may be available
to it, to terminate the Agreement with respect to a given Candidate Compound
or Lead Optimization Compound or, depending upon the materiality of the
breach, to terminate the Agreement with respect to the Agreement in its
entirety; provided, however, that such right to terminate shall be stayed in
the event that, during such ten (10) day period, the party alleged to have
been in default shall have: (a) initiated arbitration in accordance with
Section , below, with respect to the alleged default, and (b) diligently and
in good faith cooperated in the prompt resolution of such arbitration
proceedings.
3.2.Insolvency or Bankruptcy.
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3.2.1.Either party may, in addition to any other remedies available by law
or in equity, terminate the Agreement by written notice to the other
party in the event the latter party shall have become insolvent or
bankrupt, or shall have an assignment for the benefit of its creditors,
or there shall have been appointed a trustee or receiver of the other
party or for all or a substantial part of its property or any case or
proceeding shall have been commenced or other action taken by or
against the other party in bankruptcy or seeking reorganization,
liquidation, dissolution, winding-up, arrangement or readjustment of
its debts or any other relief under any bankruptcy, insolvency,
reorganization or other similar act or law of any jurisdiction now or
hereafter in effect, or there shall have been issued a warrant of
attachment, execution, restraint or similar process against any
substantial part of the property of the other party, and any such event
shall have continued for ninety (90) days undismissed, unbonded and
undischarged.
3.2.2.All rights and licenses granted under or pursuant to the Agreement by
Company or Cengent are, and shall otherwise be deemed to be, for
purposes of Section 365(n) of the U.S. Bankruptcy Code, licenses of
right to "Intellectual Property" as defined under Section 101 of the
U.S. Bankruptcy Code. The parties agree that the parties as licensees
of such rights under the Agreement, shall retain and may fully exercise
all of their rights and elections under the U.S. Bankruptcy Code. The
parties further agree that, in the event of the commencement of a
bankruptcy proceeding by or against either party under the U.S.
Bankruptcy Code, the party hereto which is not a party to such
proceeding shall be entitled to a complete duplicate of (or complete
access to, as appropriate) any such Intellectual Property and all
embodiments or descriptions of such licensed Intellectual Property, and
same, if not already in their possession, shall be promptly delivered
to it (a) upon any such commencement of a bankruptcy proceeding upon
its written request therefor, unless the party subject to such
proceedings elects to continue to perform all of its obligations under
the Agreement or (b) if not delivered under (a) above, upon the
rejection of the Agreement by or on behalf of the party subject to such
proceeding upon written request therefor by the nondebtor party.
3.3.Survival of Obligations. The termination or expiration of the Agreement
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shall not relieve the parties of any obligations accruing prior to such
termination, and any such termination shall be without prejudice to the
rights of either party against the other. The provisions of Section shall
survive any termination of the Agreement.
4. DISPUTE RESOLUTION
4.1.Dispute Resolution Process. Both parties understand and appreciate that
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their long term mutual interest will be best served by affecting a rapid and
fair resolution of any claims or disputes which may arise out of services
performed under this contract or from any dispute concerning the terms of
the Agreement. Therefore, both parties agree to use their best efforts to
resolve all such disputes as rapidly as possible on a fair and equitable
basis. Toward this end, both parties agree to develop and follow a process
for presenting, rapidly assessing, and settling claims on a fair and
equitable basis that takes into account the precise subject and nature of
the dispute.
4.2.Dispute Resolution Panel. If any dispute or claim arising under the
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Agreement cannot be or is not readily resolved by the parties pursuant to
the process described above, then the parties agree to refer the matter to a
panel consisting of the Chief Executive Officer of Cengent and the Chief
Executive Officer of Company or their designees for review and a non-binding
resolution. A copy of the terms of the Agreement, agreed upon facts (and
areas of disagreement), and concise (3 pages or less) summary of the basis
for each side's contentions will be provided to both such officers who shall
review the same, confer and attempt to reach a mutual resolution of the
issue. The described material shall be provided within ten days of either
party giving the other written notice that the party sending the notice
wants to avail itself of the process described in this Section .
4.3.Arbitration.
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4.3.1.If, by thirtieth day following the notice described in the last
sentence of Section above, the matter has not been resolved utilizing
the foregoing process and the parties are unwilling to accept the non-
binding decision of the dispute resolution panel, either or both
parties may elect to pursue definitive resolution through binding
arbitration, which the parties agree to accept in lieu of litigation or
other legally available remedies (with the exception of injunctive
relief where such relief is necessary to protect a party from
irreparable harm pending the outcome of any such arbitration
proceeding). Binding arbitration shall be settled in accordance with
the Rules of the American Arbitration Association by a single
arbitrator chosen in accordance with such Rules. If such dispute
relates primarily to patent rights relating to Products, such
arbitrator shall be selected in such a manner to ensure that he or she
will have sufficient technical expertise and training to handle such a
dispute.
0.0.0.Xx set forth in Section , the Agreement shall be governed by and
construed in accordance with the substantive laws of the State of
California without regard to the conflicts of laws provisions of
California. The arbitration will be held in San Diego, California.
Judgment upon the award rendered may be entered in any court having
jurisdiction and the parties hereby consent to the said jurisdiction
and venue, and further irrevocably waive any objection which either
party may have now or hereafter to the laying of venue of any
proceedings in said courts and to any claim that such proceedings have
been brought in an inconvenient forum, and further irrevocably agree
that a judgment or order in any such proceeding shall be conclusive and
binding upon the parties and may be enforced in the courts of any other
jurisdiction.
0.0.Xx Consequential Damages. IN NO EVENT SHALL EITHER PARTY OR ANY OF ITS
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RESPECTIVE AFFILIATES BE LIABLE TO THE OTHER PARTY OR ANY OF ITS AFFILIATES
FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER IN
CONTRACT, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE,
INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUE, OR CLAIMS OF
CUSTOMERS OF ANY OF THEM OR OTHER THIRD PARTIES FOR SUCH OR OTHER DAMAGES.
5. MISCELLANEOUS PROVISIONS
5.1.Entire Agreement. This Agreement, each of the Exhibits hereto, and the
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separate non-disclosure agreement constitute and contain the entire
understanding and agreement of the parties respecting the subject matter of
the Agreement and cancels and supersedes any all prior negotiations,
correspondence, understandings and agreements between the parties, whether
oral or written, regarding such subject matter.
5.2.Further Actions. Each party agrees to execute, acknowledge and deliver
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such further instruments and to do all such other acts as may be necessary
or appropriate in order to carry out the purposes and intent of the
Agreement.
5.3.Binding Effect. This Agreement and the rights granted herein shall be
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binding upon and shall inure to the benefit of Cengent, Company and their
successors and permitted assigns.
5.4.Assignment. Neither party shall assign the Agreement without the prior
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written consent of the other party; provided, however, that either party may
assign the Agreement without the prior written consent of the other in
connection with the sale or transfer of substantially all of its assets, or
in the event of its merger or consolidation or change of control or similar
transaction, or to a 80% or more owned affiliate of a party. Any permitted
assignee shall assume all obligations of its assignor under the Agreement.
0.0.Xx Implied Licenses. No rights to any other patents, know-how or technical
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information, or other intellectual property rights, other than as explicitly
identified herein, are granted or deemed granted by the Agreement. No right,
expressed or implied, is granted by the Agreement to a party to use in any
manner the name or any other trade name or trademark of the other party in
connection with the performance of the Agreement.
0.0.Xx Waiver. No waiver, modification or amendment of any provision of the
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Agreement shall be valid or effective unless made in writing and signed by a
duly authorized officer of each party (which, with respect to Cengent, shall
mean its CEO, President, COO or CFO). The failure of either party to assert
a right hereunder or to insist upon compliance with any term or condition of
the Agreement shall not constitute a waiver of that right or excuse a
similar subsequent failure to perform any such term or condition.
5.7.Force Majeure. The failure of a party to perform any obligation under the
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Agreement by reason of acts of God, acts of governments, riots, wars,
strikes, accidents or deficiencies in materials or transportation or other
causes of a similar magnitude beyond its control shall not be deemed to be a
breach of the Agreement.
5.8.Independent Contractors. Both parties are independent contractors under
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the Agreement. Nothing contained in the Agreement is intended nor is to be
construed so as to constitute Cengent or Company as partners or joint
venturers with respect to the Agreement. Neither party shall have any
express or implied right or authority to assume or create any obligations on
behalf of or in the name of the other party or to bind the other party to
any other contract, agreement or undertaking with any third party.
5.9.Notices and Deliveries. Any formal notice, request, delivery, approval or
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consent required or permitted to be given under the Agreement shall be in
writing and shall be deemed to have been sufficiently given when it is
received, whether delivered in person, transmitted by facsimile with
contemporaneous confirmation, or delivery by registered letter (or its
equivalent) or delivery by certified overnight courier service, to the party
to which it is directed at its address shown below the party's signature
block on the Agreement or such other address as such party shall have last
given by notice to the other party.
5.10.Public Announcements. The parties will make a good faith effort to agree
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upon the timing and content of any initial press release to the Agreement
and the transactions contemplated herein. No initial press release will be
made unless each party has approved its timing and content.
5.10.1.Except to the extent already disclosed in that initial press release
or other public communication, no public announcement concerning the
existence or the terms of the Agreement or concerning the transactions
described herein shall be made, either directly or indirectly, by
Company or Cengent, without first obtaining the approval of the other
party and agreement upon the nature, text, and timing of such
announcement, which approval and agreement shall not be unreasonably
withheld.
5.10.2.The party desiring to make any such public announcement shall provide
the other party with a written copy of the proposed announcement in
sufficient time prior to public release to allow such other party to
comment upon such announcement, prior to public release.
5.11.Headings. The captions to the sections and articles in the Agreement are
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not a part of the Agreement, and are included merely for convenience of
reference only and shall not affect its meaning or interpretation.
5.12.Severability. If any provision of the Agreement becomes or is declared by
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a court of competent jurisdiction to be illegal, unenforceable or void, the
Agreement shall continue in full force and effect without said provision, so
long as the Agreement, taking into account said voided provision(s),
continues to provide the parties with the same practical economic benefits
as the Agreement containing said voided provision(s) did on the Effective
Date. If, after taking into account said voided provision(s), the parties
are unable to realize the practical economic benefit contemplated on the
Effective Date, the parties shall negotiate in good faith to amend the
Agreement to reestablish the practical economic benefit provided the parties
on the Effective Date.
5.13.Applicable Law. This Agreement shall be governed by and interpreted in
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accordance with the laws of the State of California without reference to its
conflicts of laws provisions.
5.14.Counterparts. This Agreement may be executed in counterparts, or
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facsimile versions, each of which shall be deemed to be an original, and
both of which together shall be deemed to be one and the same agreement.
5.15.Facsimile Signatures. The parties hereto (i) each agree to permit the
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use, from time to time and where appropriate under the circumstances, of
telecopied signatures in order to expedite the transaction(s) contemplated
by the Agreement; (ii) each intend to be bound by its respective telecopied
signature; (iii) are each aware that the other will rely on the telecopied
signature; and (iv) each acknowledge such reliance and waive any defenses to
the enforcement of the documents effecting the transactions contemplated by
the Agreement based on a telecopied signature. The parties covenant to each
other that when they use telecopied signatures, they will in a timely manner
send the other party the original signature.
