(NON-CLINICAL)
This Agreement ("Agreement") is between Duke University ("Duke"), a
North Carolina non-profit corporation, located in Durham, North Carolina and
Xxxxxx Laboratories, Inc. ("Sponsor"), a Maryland corporation having offices at
00000-X Xxx Xxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000.
WHEREAS, the research program contemplated by this Agreement is of
mutual interest and benefit to Duke and Sponsor, and will further the
instructional and research objectives of Duke in a manner consistent with its
status as a non-profit educational institution.
NOW, THEREFORE, the parties agree as follows:
ARTICLE 1
STATEMENT OF WORK
Duke agrees to use its best effort to perform the research program
described in the "Statement of Work" ("Statement"), a copy of which is attached
to this Agreement as Exhibit "A".
ARTICLE 2
INDEPENDENT CONTRACTOR
Duke's relationship to Sponsor under this Agreement will be of an
independent contractor and not an agent, joint venturer or partner of Sponsor.
ARTICLE 3
PRINCIPAL INVESTIGATOR
The research will be supervised by Xxxxx Xxxxxxx, PhD ("Investigator")
at Duke. If, for any reason Investigator is unable to continue to serve as
Principal Investigator and a successor acceptable to both Duke and Sponsor is
not available, the Agreement will be terminated in accordance with Article 7
below.
ARTICLE 4
CONSIDERATION
In consideration of the foregoing, and as more specifically provided in
the budget included as Exhibit B, Sponsor will pay Duke for all direct and
indirect costs incurred in the performance of the research as set forth in the
Statement, a total not to exceed $184,336. Payment will be made to Duke by
Sponsor in advance, on the schedule set forth in Exhibit B.
483203.001(B&F) 1 01/11/99
ARTICLE 5
PERIOD OF PERFORMANCE
The research will be conducted during a 1 year period commencing on
________, 19__ and concluding on or before ________________. This agreement will
be renewable for additional periods upon the mutual consent of the parties by a
new agreement or by amendment hereto expressed in writing. Either party may
terminate this Agreement on any anniversary date of this Agreement after the
first anniversary date by giving the other party at least sixty (60) days prior
written notice of such termination. In the case of such termination, Duke will
proceed in an orderly fashion to terminate any outstanding commitments and to
stop the work as soon as it is practicable to do so. All reasonable costs to
Duke associated with termination will be considered reimbursable costs,
including costs incurred prior to the notice of termination but which have not
yet been reimbursed, and commitments existing at the time the notice of
termination is received which cannot be cancelled.
ARTICLE 6
RESEARCH REPORTS
Duke will provide Sponsor with periodic progress reports on the
research. In addition, Duke will provide Sponsor with a final report on such
research within sixty (60) days of termination of this Agreement.
ARTICLE 7
TERMINATION
In the event that either party commits a breach or default in any of
the terms or conditions of this Agreement and that party fails to remedy that
default or breach within thirty (30) days after receipt of written notice of
that breach from the other party, the party giving notice may, at its option and
in addition to any other remedies it may have in law or in equity; terminate
this Agreement by sending written notice of termination to stop the work as soon
as it is practicable to do so. All costs to Duke associated with termination
will be considered reimbursable costs, including costs incurred prior to the
notice of termination but which have not yet been reimbursed, and commitments
existing at the time the notice of termination is received which cannot be
cancelled. This shall include all noncancellable contracts and fellowships or
postdoctoral associate appointments incurred prior to the effective date of
termination. After termination, any obligation of Sponsor for fellowships or
postdoctoral associates shall end no later than the first to occur of (i) the
end of Duke's academic year following termination. or (ii) the next anniversary
date on which Sponsor could have terminated this Agreement pursuant to Article
5. In no case will reimbursement under this Agreement exceed the total estimated
project costs specified in Exhibit B.
483203.001(B&F) 2 01/11/99
ARTICLE 8
CONFIDENTIAL INFORMATION
"Confidential Information" ("Information") shall mean all information
provided by one party to the other and clearly identified as confidential by the
transmitting party at the time of disclosure. Specifically excepted from this
definition is all information: (a) known by the receiving party at the time of
disclosure; (b) publicly disclosed except by breach of this Agreement; (c)
rightfully received by the receiving party from a third party without an express
obligation of confidence; and (d) independently developed by the employees or
agents of either party without any knowledge of the confidential information
provided by the other party. The party receiving the Information agrees to hold
that Information in trust and confidence for the transmitting party, using the
same care and discretion that the receiving party uses with similar Information
which it considers confidential. The receiving party will not use Information
other than for the benefit of the two parties and relating to the Agreement and
except as may be provided for in Article 9 regarding publication herein, neither
party will disclose such information without authorization from the other party.
This provision shall remain in effect during the term of this Agreement and for
three (3) years thereafter.
ARTICLE 9
PUBLICATION AND OTHER USE
Duke shall be free to use the results of the subject research for its
own teaching, research, educational, clinical and publication purposes without
the payment of royalties or other fees. Duke agrees to submit to Sponsor for its
review, a copy of any proposed publication resulting from the subject research
at least sixty (60) days prior to the estimated date of publication, and if no
response is received within thirty (30) days of the date submitted to Sponsor,
it will be conclusively presumed that the publication may proceed without delay.
If Sponsor determines that the proposed publication contains patentable subject
matters which require protection, Sponsor may require the delay of the
publication for a period of time not to exceed sixty (60) days for the purpose
of allowing the pursuit of such protection.
ARTICLE 10
INVENTIONS
Any new invention, development, or discovery resulting from the subject
research ("Invention") shall be promptly disclosed in writing to Sponsor.
Sponsor is hereby granted, without option fee other than the consideration of
the research sponsored herein and the reimbursement of Duke for all patent
expenses incurred to the date of disclosure related to the Invention, an option
to acquire an exclusive, worldwide, royalty bearing license of Duke's rights to
any Invention, which option shall extend for ninety (90) days after Sponsor's
receipt of an Invention disclosure. If Sponsor notifies Duke in writing of its
exercise of the option within the option period, then the parties will proceed
483203.001(B&F) 3 01/11/99
in good faith to negotiate a license agreement on commercially reasonable terms
within ninety (90) days after notification of exercise, and if Sponsor does not
exercise this option, or notifies Duke that it will not exercise this option, or
the parties fail to sign a license agreement within said ninety (90) day period,
then Sponsor shall no longer own any rights in the subject Invention.
ARTICLE 11
INDEMNITY AND INSURANCE
Sponsor agrees to indemnify, hold harmless and defend Duke, its
officers, employees, and agents against any and all claims, suits, losses,
damages, costs, fees, and expenses asserted by third parties, both government
and non-government, resulting from or arising out of this agreement; provided,
however, that Sponsor shall not be responsible for Duke's negligence or willful
misconduct. Sponsor shall maintain in force at its sole cost and expense, with
reputable insurance companies, insurance of a type and in an amount reasonably
sufficient to protect against liability hereunder. Duke shall have the right to
request the appropriate certificates of insurance from Sponsor for the purpose
of ascertaining the sufficiency of such coverage.
ARTICLE 12
USE OF A PARTY'S NAME
Neither party will, without the prior written consent of the other
party: (a) use in advertising, publicity or otherwise, the name of any employee
or agent, any trade-name, trademark, trade device, service xxxx, symbol, or any
abbreviation, contraction or simulation thereof owned by the other party, or (b)
represent, either directly or indirectly, that any product or service of the
other party is a product or service of the representing party or that it is made
in accordance with or utilizes the information or documents of the other party.
Notwithstanding the above, Sponsor shall have the right to state that it has
entered into this Agreement with Duke and to state or summarize the terms hereof
in its filings with the Securities and Exchange Commission and related
shareholder communications; provided that Sponsor shall submit the text of such
statements to Duke at least 48 hours prior to publication.
ARTICLE 13
NOTICE
Any notice or other communication required or permitted under this
Agreement will be in writing and will be deemed given as of the date it is: (a)
delivered by hand, or (b) mailed, postage prepaid, first class, certified mail,
return receipt requested, to the party at the address listed below or
subsequently specified in writing, or (c) sent, shipping prepaid, return receipt
requested, by national courier service, to the party at the address listed below
or subsequently specified in writing:
483203.001(B&F) 4 01/11/99
As to Duke: Office of Grants and Contracts
107 Xxxxxx X. Xxxx Building
Duke University Medical Center - Box 3001
Xxxxxx, Xxxxx Xxxxxxxx 00000
cc: University Counsel
Duke University - 000 Xxxxx Xxxxxxxx
Xxxxxx, Xxxxx Xxxxxxxx 00000
As to Sponsor: Xxxxxx Laboratories, Inc.
00000-X Xxx Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxxxx Xxxxxx
This Agreement is for professional research services. Neither party may assign,
delegate or otherwise transfer any of its rights or obligations under this
Agreement without the prior written consent of the other party.
ARTICLE 14
ENTIRE AGREEMENT
This Agreement and all attached Exhibits contain the entire agreement
and understanding between the parties as to its subject matter. It merges all
prior discussions between the parties and neither party will be bound by
conditions, definitions, warranties, understandings, or representations
concerning such subject matter except as provided in this Agreement or as
specified on or subsequent to the effective date of this Agreement in a writing
signed by properly authorized representatives of the parties. This Agreement can
only be modified by written agreement duly signed by persons authorized to sign
agreements on behalf of both Sponsor and Duke.
ARTICLE 15
WAIVER
The failure of a party in any instance to insist upon the strict
performance of the terms of this Agreement will not be construed to be a waiver
or relinquishment of any of the terms of this Agreement, either at the time of
the party's failure to insist upon strict performance or at any time in the
future, and such terms will continue in full force and effect.
483203.001(B&F) 5 01/11/99
ARTICLE 16
SEVERANCE
Each clause of this Agreement is a distinct and severable clause and if
any clause is deemed illegal, void or unenforceable, the validity, legality or
enforceability of any other clause or portion of this Agreement will not be
affected thereby.
ARTICLE 17
GOVERNING LAW
The construction and performance of this Agreement will be governed by
the laws of the State of North Carolina.
ARTICLE 18
TITLES
All titles and articles headings contained in this Agreement are
inserted only as a matter of convenience and reference. They do not define,
limit extend or describe the scope of this Agreement or the intent of any of its
provisions.
IN WITNESS WHEREOF, the parties hereunto set their hands and seals.
DUKE UNIVERSITY
By: /s/ Xxxxx Hyderman
----------------------
Name:
Title:
Date Executed:______________________
Principal Investigator:
SPONSOR:
XXXXXX LABORATORIES, INC.
By: /s/Xxxxxxxxx X. Xxxxxx
--------------------------
Name:
Title:Chairman
483203.001(B&F) 6 01/11/99
Date Executed: March 17, 1998
Exhibit "B"
Payment Schedule
================================== ===================
Payment Due Date Amount
---------------------------------- -------------------
January __, 1998 $25,000
---------------------------------- -------------------
April __, 1998 $53,112
---------------------------------- -------------------
July __, 1998 $53,112
---------------------------------- -------------------
October __, 1998 $53,112
---------------------------------- -------------------
Total $184,336
================================== ===================
483203.001(B&F) 7 01/11/99
(NON-CLINICAL)
This Agreement ("Agreement") is between Duke University ("Duke"), a
North Carolina non-profit corporation, located in Durham, North Carolina and
Xxxxxx Laboratories, Inc. ("Sponsor"), a Maryland corporation having offices at
00000-X Xxx Xxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000.
WHEREAS, the research program contemplated by this Agreement is of
mutual interest and benefit to Duke and Sponsor, and will further the
instructional and research objectives of Duke in a manner consistent with its
status as a non-profit educational institution.
NOW, THEREFORE, the parties agree as follows:
ARTICLE 4
STATEMENT OF WORK
Duke agrees to use its best effort to perform the research program
described in the "Statement of Work" ("Statement"), a copy of which is attached
to this Agreement as Exhibit "A".
ARTICLE 5
INDEPENDENT CONTRACTOR
Duke's relationship to Sponsor under this Agreement will be of an
independent contractor and not an agent, joint venturer or partner of Sponsor.
ARTICLE 6
PRINCIPAL INVESTIGATOR
The research will be supervised by Xxxx X. Xxxxxxxx, DVM, PhD
("Investigator") at Duke. If, for any reason Investigator is unable to continue
to serve as Principal Investigator and a successor acceptable to both Duke and
Sponsor is not available, the Agreement will be terminated in accordance with
Article 7 below.
ARTICLE 4
CONSIDERATION
In consideration of the foregoing, and as more specifically provided in
the budget included as Exhibit B, Sponsor will pay Duke for all direct and
483203.001(B&F) 8 01/11/99
indirect costs incurred in the performance of the research as set forth in the
Statement, a total not to exceed $440,726. Payment will be made to Duke by
Sponsor in advance, on the schedule set forth in Exhibit B.
ARTICLE 5
PERIOD OF PERFORMANCE
The research will be conducted during a 1 year period commencing on
February 1, 1998 and concluding on or before Janaury 31, 1999. This agreement
will be renewable for additional periods upon the mutual consent of the parties
by a new agreement or by amendment hereto expressed in writing. Either party may
terminate this Agreement on any anniversary date of this Agreement after the
first anniversary date by giving the other party at least sixty (60) days prior
written notice of such termination. In the case of such termination, Duke will
proceed in an orderly fashion to terminate any outstanding commitments and to
stop the work as soon as it is practicable to do so. All reasonable costs to
Duke associated with termination will be considered reimbursable costs,
including costs incurred prior to the notice of termination but which have not
yet been reimbursed, and commitments existing at the time the notice of
termination is received which cannot be cancelled.
ARTICLE 6
RESEARCH REPORTS
Duke will provide Sponsor with periodic progress reports on the
research. In addition, Duke will provide Sponsor with a final report on such
research within sixty (60) days of termination of this Agreement.
ARTICLE 7
TERMINATION
In the event that either party commits a breach or default in any of
the terms or conditions of this Agreement and that party fails to remedy that
default or breach within thirty (30) days after receipt of written notice of
that breach from the other party, the party giving notice may, at its option and
in addition to any other remedies it may have in law or in equity; terminate
this Agreement by sending written notice of termination to stop the work as soon
as it is practicable to do so. All costs to Duke associated with termination
will be considered reimbursable costs, including costs incurred prior to the
notice of termination but which have not yet been reimbursed, and commitments
existing at the time the notice of termination is received which cannot be
cancelled. This shall include all noncancellable contracts and fellowships or
postdoctoral associate appointments incurred prior to the effective date of
termination. After termination, any obligation of Sponsor for fellowships or
postdoctoral associates shall end no later than the first to occur of (i) the
end of Duke's academic year following termination. or (ii) the next anniversary
date on which Sponsor could have terminated this Agreement pursuant to Article
483203.001(B&F) 9 01/11/99
5. In no case will reimbursement under this Agreement exceed the total estimated
project costs specified in Exhibit B.
ARTICLE 8
CONFIDENTIAL INFORMATION
"Confidential Information" ("Information") shall mean all information
provided by one party to the other and clearly identified as confidential by the
transmitting party at the time of disclosure. Specifically excepted from this
definition is all information: (a) known by the receiving party at the time of
disclosure; (b) publicly disclosed except by breach of this Agreement; (c)
rightfully received by the receiving party from a third party without an express
obligation of confidence; and (d) independently developed by the employees or
agents of either party without any knowledge of the confidential information
provided by the other party. The party receiving the Information agrees to hold
that Information in trust and confidence for the transmitting party, using the
same care and discretion that the receiving party uses with similar Information
which it considers confidential. The receiving party will not use Information
other than for the benefit of the two parties and relating to the Agreement and
except as may be provided for in Article 9 regarding publication herein, neither
party will disclose such information without authorization from the other party.
This provision shall remain in effect during the term of this Agreement and for
three (3) years thereafter.
ARTICLE 9
PUBLICATION AND OTHER USE
Duke shall be free to use the results of the subject research for its
own teaching, research, educational, clinical and publication purposes without
the payment of royalties or other fees. Duke agrees to submit to Sponsor for its
review, a copy of any proposed publication resulting from the subject research
at least sixty (60) days prior to the estimated date of publication, and if no
response is received within thirty (30) days of the date submitted to Sponsor,
it will be conclusively presumed that the publication may proceed without delay.
If Sponsor determines that the proposed publication contains patentable subject
matters which require protection, Sponsor may require the delay of the
publication for a period of time not to exceed sixty (60) days for the purpose
of allowing the pursuit of such protection.
ARTICLE 10
INVENTIONS
Any new invention, development, or discovery resulting from the subject
research ("Invention") shall be promptly disclosed in writing to Sponsor.
Sponsor is hereby granted, without option fee other than the consideration of
the research sponsored herein and the reimbursement of Duke for all patent
expenses incurred to the date of disclosure related to the Invention, an option
483203.001(B&F) 10 01/11/99
to acquire an exclusive, worldwide, royalty bearing license of Duke's rights to
any Invention, which option shall extend for ninety (90) days after Sponsor's
receipt of an Invention disclosure. If Sponsor notifies Duke in writing of its
exercise of the option within the option period, then the parties will proceed
in good faith to negotiate a license agreement on commercially reasonable terms
within ninety (90) days after notification of exercise, and if Sponsor does not
exercise this option, or notifies Duke that it will not exercise this option, or
the parties fail to sign a license agreement within said ninety (90) day period,
then Sponsor shall no longer own any rights in the subject Invention.
ARTICLE 11
INDEMNITY AND INSURANCE
Sponsor agrees to indemnify, hold harmless and defend Duke, its
officers, employees, and agents against any and all claims, suits, losses,
damages, costs, fees, and expenses asserted by third parties, both government
and non-government, resulting from or arising out of this agreement; provided,
however, that Sponsor shall not be responsible for Duke's negligence or willful
misconduct. Sponsor shall maintain in force at its sole cost and expense, with
reputable insurance companies, insurance of a type and in an amount reasonably
sufficient to protect against liability hereunder. Duke shall have the right to
request the appropriate certificates of insurance from Sponsor for the purpose
of ascertaining the sufficiency of such coverage.
ARTICLE 12
USE OF A PARTY'S NAME
Neither party will, without the prior written consent of the other
party: (a) use in advertising, publicity or otherwise, the name of any employee
or agent, any trade-name, trademark, trade device, service xxxx, symbol, or any
abbreviation, contraction or simulation thereof owned by the other party, or (b)
represent, either directly or indirectly, that any product or service of the
other party is a product or service of the representing party or that it is made
in accordance with or utilizes the information or documents of the other party.
Notwithstanding the above, Sponsor shall have the right to state that it has
entered into this Agreement with Duke and to state or summarize the terms hereof
in its filings with the Securities and Exchange Commission and related
shareholder communications; provided that Sponsor shall submit the text of such
statements to Duke at least 48 hours prior to publication.
ARTICLE 13
NOTICE
Any notice or other communication required or permitted under this
Agreement will be in writing and will be deemed given as of the date it is: (a)
delivered by hand, or (b) mailed, postage prepaid, first class, certified mail,
return receipt requested, to the party at the address listed below or
483203.001(B&F) 11 01/11/99
subsequently specified in writing, or (c) sent, shipping prepaid, return receipt
requested, by national courier service, to the party at the address listed below
or subsequently specified in writing:
As to Duke: Office of Grants and Contracts
107 Xxxxxx X. Xxxx Building
Duke University Medical Center - Box 3001
Xxxxxx, Xxxxx Xxxxxxxx 00000
cc: University Counsel
Duke University - 000 Xxxxx Xxxxxxxx
Xxxxxx, Xxxxx Xxxxxxxx 00000
As to Sponsor: Xxxxxx Laboratories, Inc.
00000-X Xxx Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxxxx Xxxxxx
This Agreement is for professional research services. Neither party may assign,
delegate or otherwise transfer any of its rights or obligations under this
Agreement without the prior written consent of the other party.
ARTICLE 14
ENTIRE AGREEMENT
This Agreement and all attached Exhibits contain the entire agreement
and understanding between the parties as to its subject matter. It merges all
prior discussions between the parties and neither party will be bound by
conditions, definitions, warranties, understandings, or representations
concerning such subject matter except as provided in this Agreement or as
specified on or subsequent to the effective date of this Agreement in a writing
signed by properly authorized representatives of the parties. This Agreement can
only be modified by written agreement duly signed by persons authorized to sign
agreements on behalf of both Sponsor and Duke.
ARTICLE 15
WAIVER
The failure of a party in any instance to insist upon the strict
performance of the terms of this Agreement will not be construed to be a waiver
or relinquishment of any of the terms of this Agreement, either at the time of
the party's failure to insist upon strict performance or at any time in the
future, and such terms will continue in full force and effect.
483203.001(B&F) 12 01/11/99
ARTICLE 16
SEVERANCE
Each clause of this Agreement is a distinct and severable clause and if
any clause is deemed illegal, void or unenforceable, the validity, legality or
enforceability of any other clause or portion of this Agreement will not be
affected thereby.
ARTICLE 17
GOVERNING LAW
The construction and performance of this Agreement will be governed by
the laws of the State of North Carolina.
ARTICLE 18
TITLES
All titles and articles headings contained in this Agreement are
inserted only as a matter of convenience and reference. They do not define,
limit extend or describe the scope of this Agreement or the intent of any of its
provisions.
IN WITNESS WHEREOF, the parties hereunto set their hands and seals.
DUKE UNIVERSITY
By: /s/Xxxxx Hyderman
---------------------
Name:
Title:
Date Executed:______________________
Principal Investigator:
SPONSOR:
XXXXXX LABORATORIES, INC.
By: /s/Xxxxxxxxx X. Xxxxxx
--------------------------
Name:
Title: Chairman
483203.001(B&F) 13 01/11/99
Date Executed: March 17, 1998
Exhibit "B"
Payment Schedule
================================== ===================
Payment Due Date Amount
---------------------------------- -------------------
February __, 1998 $110,181
---------------------------------- -------------------
May __, 1998 $110,181
---------------------------------- -------------------
August __, 1998 $110,181
---------------------------------- -------------------
November __, 1998 $110,183
---------------------------------- -------------------
Total $440,726
================================== ===================
483203.001(B&F) 14 01/11/99
