Exhibit 10.4
RESEARCH AGREEMENT
THIS RESEARCH AGREEMENT, is by and between PILOT BIOTECHNOLOGIES
INC., a corporation organized under the laws of the State of North Carolina,
whose offices are located at Xxxxxx Xxxx, 000 Xxxxx Xxxxxxxx Xxxxxx,
Xxxxxxx-Xxxxx, XX 00000 (the "Company"), and WAKE FOREST UNIVERSITY SCHOOL OF
MEDICINE, an educational institution organized under the laws of the State of
North Carolina, whose offices are located at Xxxxxxx Xxxxxx Xxxxxxxxx,
Xxxxxxx-Xxxxx, Xxxxx Xxxxxxxx 00000 (hereinafter called "Wake Forest").
Wake Forest and the Company agree as follows:
1. Wake Forest will perform sponsored research for the Company in
the field of arachidonic acid metabolism and in other fields as
mutually agreed by the parties on terms as specifically agreed to
by the parties from time to time during the term of this
Agreement. Each new specific research project will be the subject
of a separate sub-agreement that will describe the scope of work
and associated research protocols to be performed, anticipated
inventions, findings and discoveries, key personnel assigned to
the project, required equipment, a project budget, timing for
completion of the project, deliverables and other work product
and reporting provisions, as well as any amendments to the
general terms and conditions in this Agreement applicable to that
project.
Wake Forest will not refuse a specific research project
unreasonably, but each specific project must meet the definition
of research of a type that can properly be performed by an
educational tax-exempt organization.
2. This Agreement shall be for a term commencing on the last date of
signature to this Agreement and ending on December 31, 2002. The
term may be extended by mutual agreement in writing. Either
party may terminate this Agreement, with or without cause, on
thirty (30) days prior written notice to the other party,
except that obligations that have been incurred pursuant to
Paragraphs 7, 8, 9 and 13, and noncancellable budgeted
obligations under ongoing research projects, will survive
termination.
3. Unless otherwise agreed in an applicable sub-agreement, within
thirty (30) days after completion of each specific research
project under this Agreement, Wake Forest will submit a written
study report to the Company reporting the results of the
research.
4.
Commencing in 1999, the Company shall request that Wake Forest
perform sufficient research such that the Company shall pay
Wake Forest at least $50,000 per year (the "Minimum Annual
Amount") during each calendar year during the term of this
Agreement. Each separate sub-agreement will include a detailed
budget and a payment schedule for paying any costs over and
above the Minimum Annual Amount due in any year. Commencing on
July 1, 1999, and on the first day of July, October, January
and April in each year during the term hereof, the Company
shall pay Wake Forest the positive difference (if any) between
the sum of $12,500 ($25,000 for July 1, 1999 and September 1,
1999) and
the cumulative amount of payments to Wake Forest previously
made under this Agreement in excess of the accrued portion of
the Minimum Annual Amount for that year (assuming the Minimum
Annual Amount accrues in equal quarterly installments). In the
event that the Company shall request Wake Forest to perform
research during any calendar year for aggregate payments
greater than $50,000, the parties shall provide in the
applicable sub-agreement a mutually acceptable payment
schedule for such additional work and such excess when paid
shall be credited against future quarterly installments of the
Minimum Annual Amount. Checks will be made payable to Wake
Forest University School of Medicine (Federal Identification
Number 00-0000000), will reference this Agreement and GTS ,
and will be mailed to the following address:
Wake Forest University School of Medicine
Attn: The Controller's Xxxxxx
Xxxxxxx Xxxxxx Xxxxxxxxx
Xxxxxxx-Xxxxx, Xxxxx Xxxxxxxx 00000
5. Title to any equipment purchased by Wake Forest in the
performance of the work under this Agreement, whether or not
purchased with funds provided under this Agreement, will
remain with Wake Forest and will be free of all claims, liens
or encumbrances of the Company, unless otherwise provided in
an applicable sub-agreement.
6. The research services and studies contemplated by this Agreement
will be performed under the general direction of Xx. Xxxxx X.
"Ski" Xxxxxxx, Department of Medicine, Section of Pulmonary and
Critical Care, or under other mutually acceptable Principal
Investigators. In the event he is unable or unwilling to continue
with the studies, the parties will attempt to find a mutually
acceptable substitute. In the event a mutually acceptable
substitute is not found, this Agreement may be terminated in
accordance with Paragraph 2. If Wake Forest personnel are
requested by the Company to travel to locations designated by the
Company as part of the services to be rendered hereunder, the
Company will reimburse Wake Forest for all necessary and
reasonable out-of-pocket expenses incurred in such travel. All
such expenses shall be supported by receipts. Upon receipt by the
Company of all such receipts, the Company shall promptly
reimburse Wake Forest.
7. Wake Forest is free to publish, present or use any results
arising out of the performance of research under this Agreement
for its own noncommercial educational, research or academic
purposes provided that the publication, presentation or use does
not disclose any Confidential Information (as defined in
Paragraph 8) of the Company. Wake Forest agrees that any proposed
publication or presentation relating to the studies conducted
under this Agreement will be submitted to the Company for review
at least thirty (30) days prior to submission for publication or
presentation. No right of manuscript approval is implied by this
provision. In the event that the proposed publication or
presentation contains patentable subject matter, Wake Forest
will, upon written request from the Company within the thirty
(30) day review period, delay the publication or presentation for
a maximum of an additional ninety (90) days
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to allow the Company or Wake Forest to file a patent
application prior to the publication or presentation of the
research.
8. Wake Forest agrees to hold in confidence, in accordance with this
paragraph, any written or oral information, in any medium,
disclosed by the Company to Wake Forest under this Agreement or
any sub-agreement and identified by the Company as confidential
(hereinafter "Confidential Information"). For the purposes of
this Agreement, "hold in confidence" means that Wake Forest will
protect the Confidential Information in the same manner in which
it protects its own confidential information of a similar nature.
Confidential Information will remain the property of the Company
and will be disclosed to, and used by, only those persons
associated with Wake Forest necessary for the performance of
services under this Agreement, and only to the extent necessary
to comply with this Agreement. The obligation to hold in
confidence shall not apply to:
(a) any Confidential Information that is or becomes
public knowledge through no act or omission of Wake
Forest;
(b) Confidential Information that was already lawfully in
Wake Forest's possession on the initial date of
disclosure by the Company;
(c) Confidential Information acquired by Wake Forest from
any third party without restrictions on disclosure;
and
(d) the disclosure of the results of any research
performed hereunder in strict compliance with the
provisions of Paragraph 7 hereof.
Further, it is acknowledged that Wake Forest may disclose
Confidential Information to the extent required by law, but Wake
Forest agrees such disclosure shall be limited only to such
parties and such extent as is so required and such disclosure
shall only be made after providing the Company with written
notice of such pending disclosure as far in advance as possible
in order to provide the Company with a meaningful opportunity to
seek a protective order preventing such disclosure.
Wake Forest agrees that all such Confidential Information shall
be returned to the Company upon request or upon expiration or
termination of this Agreement, except that Wake Forest may retain
one copy of such Confidential Information for its records. The
obligations of Wake Forest under this Paragraph 8 shall survive
the expiration or termination of this Agreement and will endure
for five (5) years from the date of such expiration or
termination.
9. The rights of the parties with respect to ownership and use of
all inventions and discoveries, whether or not patentable,
derived in the course of research performed under this
Agreement shall be governed by the License Agreement of even
date herewith between Wake Forest and the Company.
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Wake Forest will cause its employees working on each research
project under this Agreement to affirm that their rights in and
to any inventions made or discovered as a result of work
performed on a project under this Agreement are owned by Wake
Forest according to Wake Forest's Inventions and Patent Policy.
10. If either party should become insolvent or should make any
assignment for the benefit of creditors, or should be adjudicated
bankrupt, or should file a petition in bankruptcy, or is named as
debtor in an involuntary bankruptcy proceeding, or if a receiver
or trustee of the property of either party is appointed, then
this Agreement, at the option of the other party, will terminate,
effective on the date notice of such termination is given.
11. Neither party may assign its rights or obligations under this
Agreement or any part thereof without the written consent of
the other party, such consent not to be unreasonably withheld.
12. The terms of this Agreement shall be construed in accordance with
the laws of the State of North Carolina. Any dispute under this
Agreement shall be decided in the federal or state courts within
the State of North Carolina. This Agreement shall supersede any
previous understandings or agreements, written or otherwise,
regarding this subject matter except the License Agreement
executed contemporaneously by the parties. This Agreement may
only be amended by a written instrument signed by both parties.
13. The Company will indemnify, defend and hold harmless Wake Forest,
its officers, employees, agents and subcontractors and their
employees from any suit, action, claim, demand, judgment and
expense arising out of this Agreement. The Company agrees that if
any such claim is asserted or such suit brought against Wake
Forest or its officers, employees, agents or subcontractors or
their employees, the Company will defend such claim or suit at
the expense of the Company. The Company will not settle or
compromise any such claim or action in a manner that imposes any
restrictions or obligations on Wake Forest without Wake Forest's
written consent, which consent shall not be unreasonably
withheld.
The Company will have no obligation to indemnify Wake Forest and
its officers, employees, agents or subcontractors or their
employees under this Paragraph 13 if it is determined that the
suit, action, claim, demand, judgment or expense for which
indemnity is sought was primarily due to the negligence, willful
misconduct, breach or other non-performance of Wake Forest or its
officers, employees, agents or subcontractors or their employees.
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IN WITNESS WHEREOF, the parties hereto have caused this Research
Agreement signed by their respective officers duly authorized as of the last
date and year written below.
WAKE FOREST UNIVERSITY PILOT BIOTECHNOLOGIES, INC.
SCHOOL OF MEDICINE
By: /s/Xxxxxxxx X. Xxxxx By: /s/ X. Xxxxxxxx X. Xxxxxxxx
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Xxxxxxxx X. Xxxxx X. Xxxxxxxx X. Xxxxxxxx
Associate Xxxx President
Research Development
DATE: December 11, 1998 DATE: December 11, 1998
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