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Exhibit 10.60
CONFIDENTIAL TREATMENT REQUESTED UNDER 17 C.F.R. Sections 200.800(b)(4), 200.83
and 240.24b-2
STEMEXPRESS PRODUCT PURCHASE AGREEMENT
BETWEEN
GENE LOGIC INC.
AND
NeuralStem Biopharmaceuticals, Ltd.
DATED AS OF MARCH 27, 2000
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TABLE OF CONTENTS
PAGE
1. DEFINITIONS................................................................. 1
1.1 "Affiliate"........................................................ 1
1.2 "Base Information"................................................. 2
1.3 "cDNA"............................................................. 2
1.4 "Control".......................................................... 2
1.5 "Effective Date"................................................... 2
1.6 "GeneExpress(TM)Data Warehouse..................................... 2
1.7 "Gene Logic Software............................................... 2
1.8 "Gene Logic Technology............................................. 2
1.9 "Gene Products..................................................... 2
1.10 "Improvement"...................................................... 3
1.11 "Patent Rights".................................................... 3
1.12 "Program Inventions................................................ 3
1.13 "STEMExpress Data Mart"............................................ 3
1.14 "STEMExpress Product".............................................. 3
1.15 "Therapeutic Products.............................................. 3
1.16 "Third Party"...................................................... 3
2. STEMEXPRESS(TM) PRODUCT DELIVERY............................................ 3
2.1 Delivery of the STEMExpress Product................................ 3
3. OWNERSHIP AND PURSUIT OF PATENTS AND OTHER RIGHTS AND INVENTIONS............ 3
3.1 Ownership of Inventions............................................ 3
3.2 Ownership of Gene Logic Technology................................. 3
3.3 Pursuit of Intellectual Property Rights............................ 4
3.4 Cooperation........................................................ 4
4. LICENSES.................................................................... 4
4.1 Licenses to Gene Logic from NeuralStem............................. 4
4.2 License to NeuralStem from Gene Logic.............................. 5
ii.
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TABLE OF CONTENTS
(CONTINUED)
PAGE
5. PAYMENTS.................................................................... 5
5.1 STEMExpress Product Purchase Fee................................... 5
5.2 Method of Payment.................................................. 5
6. CONFIDENTIALITY AND SECURITY................................................ 5
6.1 Security of STEMExpress Product and Gene Logic Software........... 5
6.2 Confidentiality.................................................... 6
6.3 Permitted Disclosures.............................................. 6
6.4 Publicity.......................................................... 7
6.5 Publication........................................................ 7
7. REPRESENTATIONS AND WARRANTIES.............................................. 8
7.1 Legal Authority.................................................... 8
7.2 Valid Licenses..................................................... 8
7.3 No Conflicts....................................................... 8
7.4 STEMExpress Product................................................ 8
7.5 Representation by Legal Counsel.................................... 8
7.6 Disclaimer......................................................... 8
8. INDEMNIFICATION AND INSURANCE............................................... 9
8.1 Indemnification by NeuralStem...................................... 9
8.2 Indemnification by Gene Logic...................................... 9
8.3 Conditions to Indemnification...................................... 9
8.4 Settlements........................................................ 9
9. GENERAL PROVISIONS.......................................................... 10
9.1 Assignment......................................................... 10
9.2 Non-Waiver......................................................... 10
9.3 Governing Law...................................................... 10
9.4 Partial Invalidity................................................. 10
9.5 Notice............................................................. 10
9.6 Headings........................................................... 11
iii.
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TABLE OF CONTENTS
(CONTINUED)
PAGE
9.7 No Implied Licenses................................................ 11
9.8 Force Majeure...................................................... 11
9.9 Survival........................................................... 11
9.10 Entire Agreement................................................... 11
9.11 Amendments......................................................... 11
9.12 Independent Contractors............................................ 11
9.13 Counterparts....................................................... 11
iv.
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STEMEXPRESS PRODUCT PURCHASE AGREEMENT
THIS STEMEXPRESS PRODUCT PURCHASE AGREEMENT ("Agreement") is made as of
March 27, 2000, ("Effective Date") by and between GENE LOGIC INC., a Delaware
corporation ("Gene Logic"), having an office at 000 Xxxxxx Xxxxxxx Xxxx,
Xxxxxxxxxxxx, Xxxxxxxx 00000 and NEURALSTEM BIOPHARMACEUTICALS, LTD., a Maryland
corporation, ("NeuralStem"), having an office at 000 Xxxxxxxxxx Xxxxx, Xxxxxxx
Xxxx, XX. Gene Logic and NeuralStem may each be referred to herein individually
as a "Party" and collectively as the "Parties".
WITNESSETH:
WHEREAS, Gene Logic has developed technologies and know-how with
respect to high throughput analysis of gene expression and gene regulation for
use in the identification of drug targets for the discovery of pharmaceutical
products;
WHEREAS, Gene Logic has developed technologies and know-how with
respect to high throughput analysis of gene expression and gene regulation for
use in the identification of drug targets for the discovery of pharmaceutical
products;
WHEREAS, NeuralStem is a company engaged in the development and
commercialization of therapies for neurological disorders;
WHEREAS, Gene Logic and NeuralStem wish to enter into this Agreement
to, among other things, provide NeuralStem with (i) perpetual, non-exclusive
access to portions of the GeneExpress(TM) Data Warehouse referred to as a
STEMExpress Data Mart and software analysis tools; and
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual promises, covenants and conditions contained herein, Gene Logic and
NeuralStem agree as follows.
1. DEFINITIONS
The following capitalized terms shall have the meanings indicated for
purposes of this Agreement:
1.1 "AFFILIATE" shall mean any corporation, association or other entity
which directly or indirectly controls, is controlled by or is under common
control with the Party in question. As used in this definition of "Affiliate,"
the term "control" shall mean having the power to direct or cause the direction
of the management and policies of an entity, whether through direct or indirect
beneficial ownership of more than 50% of the voting or income interest in such
corporation or other business entity. Notwithstanding the foregoing, for
purposes of this Agreement, the term "Affiliate" shall not include subsidiaries
in which a Party or its Affiliates owns a majority of the ordinary voting power
to elect a majority of the board of directors but is
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restricted from electing such majority by contract or otherwise, until such time
a such restrictions are no longer in effect.
1.2 "BASE INFORMATION" shall mean data and information comprising (i)
gene expression profiles, (ii) nucleotide sequence information, (iii) protein
sequence information and (iv) clinical and other information associated with
tissue and cell samples and (v) any related annotated information regarding, for
example, the source of the foregoing, their biological function(s), involvement
in any metabolic or regulatory pathway(s), and relationship to any disease(s) or
response to any agent(s).
1.3 "cDNA" shall mean a DNA copy of a mRNA, including, without
limitation, all cDNA clones and cDNA templates derived from a given gene
transcript and its corresponding coding sequence, including the full length
sequence.
1.4 "CONTROL" shall mean possession of the ability to grant the
licenses or sublicenses or to make the assignments as provided for herein
without violating the terms of any agreement or other arrangement with any Third
Party.
1.5 "EFFECTIVE DATE" shall mean the date of this Agreement first
written above.
1.6 "GENEEXPRESS(TM) DATA WAREHOUSE" shall mean an organized database
architecture containing Base Information.
1.7 "GENE LOGIC SOFTWARE" shall mean software tools for the
visualization, analysis, indexing and mining of data contained in the
GeneExpress(TM) Data Warehouse, controlled by Gene Logic as of the Effective
Date.
1.8 "GENE LOGIC TECHNOLOGY" shall mean: (a) all discoveries,
inventions, information, data, know-how, trade secrets and materials (whether or
not patentable) that are Controlled by Gene Logic as of the Effective Date that
relate to: (i) methods and devices for generating Base Information, (ii) the
Gene Logic Software; (iii) the GeneExpress(TM) Data Warehouse other than the
Base Information contained therein; and (b) all Patent Rights or other
intellectual property rights controlled by Gene Logic to the extent they cover
any of the foregoing.
1.9 "GENE PRODUCTS" shall mean tangible products derived from utilizing
the Base Information contained in the STEMExpress Data Mart, comprising (i)
tangible products embodying gene expression profiles, (ii) tangible products
embodying genes, ESTs, cDNAs, partial cDNAs, DNAs, corresponding full length
cDNAs and associated genomic sequences (iii) proteins (iv) tangible products
embodying or which use methods of using the foregoing based on their biological
function(s), involvement in any metabolic or regulatory pathway(s), relationship
to any disease(s) or response to any agent(s), and (v) commercial products which
incorporate the foregoing.
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1.10 "IMPROVEMENT" shall mean any enhancement or improvement (whether
or patentable) to the Gene Logic Technology that is made by either Party in the
course of using the STEMExpress Product.
1.11 "PATENT RIGHTS" shall mean all rights associated with all United
States and foreign patents (including all reissues, extensions, confirmations,
registrations, re-examinations, and inventor's certificates) and patent
applications (including, without limitation, all substitutions, continuations,
continuations-in-part and divisionals thereof).
1.12 "PROGRAM INVENTIONS" shall mean any invention or discovery that is
or may be patentable under the laws of the United States or other countries, and
that is conceived or reduced to practice by either Party in the course of using
the STEMExpress Product.
1.13 "STEMEXPRESS DATA MART" shall mean a database containing a subset
of the Base Information contained in the GeneExpress(TM) Data Warehouse
associated with untreated, (i) diseased and normal human tissues, (ii) research
cell lines and (iii) animal model systems, such as mouse and rat, [***].
1.14 "STEMEXPRESS PRODUCT" shall mean a product which consists of the
STEMExpress Data Mart and Gene Logic Software.
1.15 "THERAPEUTIC PRODUCTS" shall mean Gene Products that are directly
used for the therapeutic or prophylactic treatment of diseases or disorders in
humans or animals, including, without limitation, cell therapy, gene therapy,
antisense therapy and protein replacement therapy.
1.16 "THIRD PARTY" shall mean any party other than NeuralStem or Gene
Logic or an Affiliate of NeuralStem or Gene Logic.
2. STEMEXPRESS(TM) PRODUCT DELIVERY.
2.1 DELIVERY OF THE STEMEXPRESS PRODUCT. Gene Logic agrees to deliver
the STEMExpress Product within three (3) days of the Effective Date.
3. OWNERSHIP AND PURSUIT OF PATENTS AND OTHER RIGHTS AND INVENTIONS
3.1 OWNERSHIP OF INVENTIONS. Except as otherwise provided in Article
3.2, the ownership of any Program Inventions shall be determined in accordance
with United States patent law.
3.2 OWNERSHIP OF GENE LOGIC TECHNOLOGY. Gene Logic shall own all rights
to the Gene Logic Technology and Improvements thereof. NeuralStem hereby
irrevocably assigns to Gene Logic all right, title and interest in and to
Improvements to the Gene Logic Technology to the extent made by employees or
agents of NeuralStem. In the event that NeuralStem is legally unable to make a
required assignment of rights to Gene Logic, then NeuralStem agrees either to
* CONFIDENTIAL TREATMENT REQUESTED
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waive the enforcement of such rights against Gene Logic and any sublicensees and
assignees; or to grant to Gene Logic an exclusive, irrevocable, perpetual,
worldwide, fully-paid license, with right to sublicense through multiple tiers
of sublicense, to such rights.
3.3 PURSUIT OF INTELLECTUAL PROPERTY RIGHTS.
(a) Gene Logic shall be responsible, in its sole discretion
and at its sole cost, for the filing, prosecution and maintenance of Patent
Rights, copyrights and other proprietary rights claiming or directed to: (i)
Gene Logic Technology and Improvements thereto; and (ii) Program Inventions
conceived solely by Gene Logic.
(b) NeuralStem shall be responsible, in its sole discretion
and at its sole cost, for the filing, prosecution and maintenance of Patent
Rights, copyrights and other proprietary rights claiming or directed to Program
Inventions conceived solely by NeuralStem.
3.4 COOPERATION. Each Party agrees to cooperate upon request of the
other Party in the preparation and prosecution of all Patent Rights and other
proprietary rights under this Article 3 and in the maintenance of any patents,
copyrights or other similar rights issued thereon; the requesting Party shall
reimburse the cooperating Party for its reasonable out-of-pocket expenses
incurred in connection with such cooperation as requested by the other Party.
Such cooperation will include the execution of all documents necessary or
desirable for the requesting Party to fulfill its obligations hereunder.
4. LICENSES
4.1 LICENSES TO GENE LOGIC FROM NEURALSTEM
(a) BASE INFORMATION LICENSE. NeuralStem hereby grants to Gene Logic a
non-exclusive, irrevocable, perpetual, worldwide, fully-paid license, with right
to sublicense through multiple tiers of sublicense, under all rights (including
Patent Rights) which NeuralStem has in the Base Information in the STEMExpress
Data Mart.
(b) [***]. If NeuralStem desires to [***], or [***],
NeuralStem shall inform Gene Logic thereof in writing. If Gene Logic is
interested in [***], it shall inform NeuralStem of its interest in writing
within [***] days ("Notice Period") after the receipt of the written notice from
NeuralStem, and the Parties shall thereafter [***] during an additional period
of [***] days ("[***] Period") such [***] Period to be extended for as long as
the Parties are [***]. If Gene Logic does not provide written notice of its
interest to NeuralStem within the Notice Period, or [***], Gene Logic's [***]
shall expire, and NeuralStem shall be free to [***].
* CONFIDENTIAL TREATMENT REQUESTED
4.
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4.2 LICENSE TO NEURALSTEM FROM GENE LOGIC
(a) LICENSE TO THE STEMEXPRESS PRODUCT. Subject to the terms
and conditions of this Agreement, including without limitation payment of the
StemExpress Product Purchase Fee under Section 5.1, Gene Logic hereby grants to
NeuralStem a perpetual, royalty-free, non-exclusive, non-sublicensable (except
to NeuralStem's Affiliates), non-transferable (except as provided in Section 9.1
hereof), worldwide license to use the Base Information in the STEMExpress
Product to perform internal research and drug discovery and development
activities.
(b) RESTRICTION ON DISCLOSURE AND RESALE. Except for
disclosure to NeuralStem's Affiliates, and NeuralStem's and NeuralStem's
Affiliates' respective employees and consultants to the extent permitted under
Section 6.2, NeuralStem shall not provide Base Information contained within the
STEMExpress Product or any Gene Logic Technology or Improvement thereto to any
Third Party for any reason without prior written consent of Gene Logic, which
consent shall not be unreasonably withheld or delayed. The Parties acknowledge
and agree that NeuralStem may desire to enter into collaborations with or grant
licenses to Third Parties to develop pharmaceutical products, including
Therapeutic Products, and that it is reasonable to disclose to Third Parties
specific Base Information contained within the STEMExpress Product in connection
with such collaborations or licenses. The Parties further acknowledge and agree
that NeuralStem shall have no right to disclose to Third Parties Base
Information contained within the STEMExpress Product, for use in generating a
data base containing Base Information that will be made available to other Third
Parties on a commercial basis.
5. PAYMENTS
5.1 STEMEXPRESS PRODUCT PURCHASE FEE. An irrevocable fee will be paid
by NeuralStem to Gene Logic of one million five hundred thousand dollars
($1,500,000), within thirty (30) days of the Effective Date.
5.2 METHOD OF PAYMENT. All payments to be made under this Agreement
shall be made in United States dollars in the United States to a bank account
designated by Party receiving such payment by wire transfer pursuant to the
instructions set forth on Schedule 5.2.
6. CONFIDENTIALITY AND SECURITY
6.1 SECURITY OF STEMEXPRESS PRODUCT AND GENE LOGIC SOFTWARE. The
Parties agree that the following additional terms and conditions apply to the
information and data contained in or derived from the STEMExpress Product
provided under the provisions of this Agreement:
(a) NeuralStem may use the STEMExpress Product only in secure work
facilities by authorized personnel and shall not make any copies of the data
contained in the
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STEMExpress Product, except as necessary to enable NeuralStem and its Affiliates
to perform internal research and drug discovery and development activities.
(b) NeuralStem will promptly notify Gene Logic of any (i)
loss, theft or unauthorized disclosure of data contained in the STEMExpress
Product; and (ii) unauthorized access to the STEMExpress Product.
6.2 CONFIDENTIALITY.
(a) Except as specifically permitted hereunder, each Party
hereby agrees to hold in confidence and not use on behalf of itself or others
all technology, data, samples, technical and economic information (including the
economic terms hereof), commercialization, clinical and research strategies,
know-how and trade secrets provided by the other Party (the "Disclosing Party")
from the date of that certain confidentiality agreement between the parties
dated August 12, 1999 and all data, results and information developed pursuant
to this Agreement that are solely owned by the Disclosing Party or jointly owned
by the parties (collectively the "Confidential Information"), except that the
term "Confidential Information" shall not include:
(i) information that is or becomes part of the public
domain other than through a breach of this Agreement by the non-Disclosing Party
or its Affiliates;
(ii) information that is obtained after the Effective Date
hereof by the non-Disclosing Party or one of its Affiliates from any Third Party
which is lawfully in possession of such Confidential Information and not in
violation of any contractual or legal obligation to the Disclosing Party with
respect to such Confidential Information;
(iii) information that was already known to the
non-Disclosing Party or one or more of its Affiliates prior to disclosure by the
Disclosing Party, as evidenced by the non-Disclosing Party's written records;
(iv) information that is required to be disclosed to any
governmental authorities or pursuant to any regulatory filings, but only to the
limited extent of such legally required disclosure; and
(v) information which has been independently developed by the
non-Disclosing Party without the aid or use of Confidential Information
as shown by competent written evidence.
(b) The obligations of this Section 6.2(b) shall survive for a
period of five (5) years from the Effective Date.
6.3 PERMITTED DISCLOSURES. Confidential Information may be disclosed to
employees, agents, consultants or sublicensees of the non-Disclosing Party or
its Affiliates, but only to the extent required to accomplish the purposes of
this Agreement and only if the non-Disclosing Party obtains prior agreement from
its employees, agents, consultants and sublicensees to whom disclosure is to be
made to hold in confidence and not make use of such information for any
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purpose other than those permitted by this Agreement. Each Party will use at
least the same standard of care as it uses to protect proprietary or
confidential information of its own to ensure that such employees, agents,
consultants do not disclose or make any unauthorized use of the Confidential
Information. Notwithstanding any other provision of this Agreement, each Party
may disclose the terms of this Agreement to lenders, investment bankers and
other financial institutions of its choice solely for purposes of financing the
business operations of such Party either (i) upon the written consent of the
other Party or (ii) if the disclosing Party obtains a signed confidentiality
agreement with such financial institution with respect to such information, upon
terms substantially similar to those contained in this Section 6. In addition,
notwithstanding any other provisions of this Agreement, nothing herein shall
limit Gene Logic's ability to grant non-exclusive access to the Base Information
contained within the STEMExpress Data Mart to multiple subscribers.
6.4 PUBLICITY. The parties agree that a press release announcing the
matters covered by this Agreement will be prepared in advance and will be
subject to the mutual approval of the parties, which approval will not
unreasonably be withheld; provided, however, that either Party may (i) publicize
the existence and general subject matter of this Agreement consistent with
previous press releases and statements without the other Party's approval and
(ii) disclose the terms of this Agreement only to the extent required to comply
with applicable securities laws.
6.5 PUBLICATION. The Parties shall cooperate in appropriate publication
of the results of activities contemplated by this Agreement, but subject to the
predominating interest to obtain patent protection for any patentable subject
matter and to Gene Logic's business interest in preserving the value of the
GeneExpress(TM) Data Warehouse. To this end, prior to any public disclosure of
such results, the Party proposing disclosure shall send the other Party a copy
of the information to be disclosed, and shall allow the other Party 30 days from
the date of receipt in which to determine whether the information to be
disclosed contains subject matter for which patent protection should be sought
prior to disclosure, otherwise contains Confidential Information of the
reviewing Party, or, with respect to any proposed disclosure by NeuralStem,
contains information that Gene Logic reasonably believes would impair the value
of the GeneExpress(TM) Data Warehouse. The Party proposing disclosure shall be
free to proceed with the disclosure unless prior to the expiration of such
30-day period the non-disclosing Party notifies the other Party that the
disclosure contains subject matter for which patent protection should be sought
or Confidential Information of the non-disclosing Party or, if NeuralStem is the
disclosing Party, Gene Logic notifies NeuralStem that Gene Logic reasonably
believes that the disclosure would impair the value of the GeneExpress(TM) Data
Warehouse, and the Party proposing publication shall then delay public
disclosure of the information for an additional period of up to three months to
permit the preparation and filing of a patent application on the subject matter
to be disclosed or for the parties to determine a mutually acceptable
modification to such publication to protect the Confidential Information of the
non-disclosing Party adequately or to address Gene Logic's concern regarding
impairment of the value of the GeneExpress(TM) Data Warehouse. The Party
proposing disclosure shall thereafter be free to publish or disclose the
information. The determination of authorship for any paper shall be in
accordance with accepted scientific practice.
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7. REPRESENTATIONS AND WARRANTIES
7.1 LEGAL AUTHORITY. Each Party represents and warrants to the other
that (i) it is a corporation or entity duly organized and validly existing under
the laws of the state or other jurisdiction of incorporation or formation; (ii)
it has the legal power, authority and right to enter into this Agreement and to
perform its respective obligations set forth herein; and (iii) the execution,
delivery and performance of this Agreement by such Party has been duly
authorized by all requisite corporate officials and do not require any
shareholder action or other approval.
7.2 VALID LICENSES. Each Party represents and warrants to the other
Party that it has authority to grant the rights and licenses set forth in this
Agreement.
7.3 NO CONFLICTS. Each Party represents and warrants that as of the
Effective Date of this Agreement it is not a party to any agreement or
arrangement with any Third Party or under any obligation or restriction,
including pursuant to its Certificate of Incorporation or Bylaws, which in any
way limits or conflicts with its ability to fulfill any of its obligations under
this Agreement.
7.4 STEMEXPRESS PRODUCT. Gene Logic hereby represents and warrants (i)
that it has the right to sell NeuralStem the STEMExpress Product, and (ii) that
to the best of the knowledge of the undersigned representative of Gene Logic as
of the Effective Date, the use of the STEMExpress Product as envisaged in this
Agreement does not infringe on the rights of any Third Parties.
7.5 REPRESENTATION BY LEGAL COUNSEL. Each Party hereto represents that
it has been represented by legal counsel in connection with the drafting of this
Agreement and acknowledges that it has participated in the drafting hereof. In
interpreting and applying the terms and provisions of this Agreement, the
Parties agree that no presumption shall exist or be implied against the Party
that drafted such term or provision.
7.6 DISCLAIMER. Except as expressly set forth in this Agreement, EACH
PARTY MAKES NO REPRESENTATIONS AND EXTENDS NO WARRANTIES OF ANY KIND, EITHER
EXPRESS OR IMPLIED. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THERE ARE
NO EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE, OR THAT THE USE OF THE INFORMATION, MATERIALS, SOFTWARE AND OTHER
TECHNOLOGY PROVIDED HEREUNDER WILL NOT INFRINGE ANY PATENT, COPYRIGHT,
TRADEMARK, OR OTHER RIGHTS OF ANY THIRD PARTY. NEITHER PARTY MAKES ANY WARRANTY
OF ANY KIND AS TO THE PATENTABILITY OF ANY DISCOVERY MADE OR TECHNOLOGY
DEVELOPED UNDER THIS AGREEMENT. EACH PARTY ACKNOWLEDGES THAT THIS AGREEMENT
PROVIDES FOR AN INNOVATIVE PROGRAM UTILIZING NEW TECHNOLOGIES AND THAT NO
WARRANTY IS MADE AS TO THE UTILITY OF ANY INFORMATION, MATERIALS, SOFTWARE OR
OTHER TECHNOLOGY PROVIDED HEREUNDER.
8.
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8. INDEMNIFICATION AND INSURANCE
8.1 INDEMNIFICATION BY NEURALSTEM. NeuralStem shall indemnify, defend
and hold harmless Gene Logic and its Affiliates, and each of its and their
respective employees, officers, directors and agents (each, a "Gene Logic
Indemnified Party") from and against any and all liability, loss, damage, cost,
and expense (including reasonable attorneys' fees) (collectively, a "Liability")
which the Gene Logic Indemnified Party may incur, suffer or be required to pay
resulting from or arising in connection with any Third Party action or claim
based upon (i) the breach by NeuralStem of any covenant, representation or
warranty contained in this Agreement, or (ii) negligence or willful misconduct
by NeuralStem, its Affiliates, employees or agents. Notwithstanding the
foregoing, NeuralStem shall have no obligation under this Agreement to
indemnify, defend or hold harmless any Gene Logic Indemnified Party with respect
to claims, demands, costs or judgments which result from willful misconduct or
negligent acts or omissions of Gene Logic, its Affiliates, or any of their
respective employees, officers, directors or agents.
8.2 INDEMNIFICATION BY GENE LOGIC. Gene Logic shall indemnify, defend
and hold harmless NeuralStem and its Affiliates, and each of its and their
respective employees, officers, directors and agents (each, a "NeuralStem
Indemnified Party") from and against any Liability which the NeuralStem
Indemnified Party may incur, suffer or be required to pay resulting from or
arising in connection with any Third Party action or claim based upon (i) the
breach by Gene Logic of any covenant, representation or warranty contained in
this Agreement, or (ii) the negligence or willful misconduct by Gene Logic, its
Affiliates, employees or agents. Notwithstanding the foregoing, Gene Logic shall
have no obligation under this Agreement to indemnify, defend, or hold harmless
any NeuralStem Indemnified Party with respect to claims, demands, costs or
judgments which result from willful misconduct or negligent acts or omissions of
NeuralStem, its Affiliates, or any of their respective employees, officers,
directors or agents.
8.3 CONDITIONS TO INDEMNIFICATION. The obligations of the indemnifying
Party under Sections 8.1 and 8.2 are conditioned upon the delivery of written
notice to the indemnifying Party of any potential Liability promptly after the
indemnified Party becomes aware of such potential Liability. The indemnifying
Party shall have the right to assume the defense of any suit or claim related to
the Liability if it has assumed responsibility for the suit or claim in writing;
however, if in the reasonable judgment of the indemnified Party, such suit or
claim involves an issue or matter which could have a materially adverse effect
on the business operations or assets of the indemnified Party, the indemnified
Party may waive its rights to indemnity under this Agreement and control the
defense or settlement thereof, but in no event shall any such waiver be
construed as a waiver of any indemnification rights such Party may have at law
or in equity. If the indemnifying Party defends the suit or claim, the
indemnified Party may participate in (but not control) the defense thereof at
its sole cost and expense.
8.4 SETTLEMENTS. Neither Party may settle a claim or action related to
a Liability without the consent of the other Party, if such settlement would
impose any monetary obligation on the other Party or require the other Party to
submit to an injunction or otherwise limit the other its Affiliates, employees,
agents, officers and directors (each an "Indemnified Party") permitted from and
against any judgments or settlements.
9.
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9. GENERAL PROVISIONS
9.1 ASSIGNMENT. This Agreement shall not be assignable by either Party
without the prior written consent of the other Party, such consent not to be
unreasonably withheld or delayed, except a Party may make such an assignment
without the other Party's consent to Affiliates or to a successor to
substantially all of the business of such Party, whether in merger, sale of
stock, sale of assets or other transaction; provided, however, that in the event
of such transaction, no intellectual property rights of any Affiliate or Third
Party that is an acquiring party shall be included in the technology licensed
hereunder. This Agreement shall be binding upon and inure to the benefit of the
parties' successors, legal representatives and assigns. Notwithstanding the
foregoing, NeuralStem may not assign any of its rights or obligations under this
Agreement to any of the competitors listed in Schedule 9.1.
9.2 NON-WAIVER. The waiver by either of the parties of any breach of
any provision hereof by the other Party shall not be construed to be a waiver of
any succeeding breach of such provision or a waiver of the provision itself.
9.3 GOVERNING LAW. This Agreement shall be construed and interpreted in
accordance with the laws of the State of Delaware other than those provisions
governing conflicts of law.
9.4 PARTIAL INVALIDITY. If and to the extent that any court or tribunal
of competent jurisdiction holds any of the terms or provisions of this
Agreement, or the application thereof to any circumstances, to be invalid or
unenforceable in a final nonappealable order, the parties shall use their best
efforts to reform the portions of this Agreement declared invalid to realize the
intent of the parties as fully as practicable, and the remainder of this
Agreement and the application of such invalid term or provision to circumstances
other than those as to which it is held invalid or unenforceable shall not be
affected thereby, and each of the remaining terms and provisions of this
Agreement shall remain valid and enforceable to the fullest extent of the law.
9.5 NOTICE. Any notice to be given to a Party under or in connection
with this Agreement shall be in writing and shall be (i) personally delivered,
(ii) delivered by a nationally recognized overnight courier, (iii) delivered by
certified mail, postage prepaid, return receipt requested or (iv) delivered via
facsimile, with receipt confirmed, to the Party at the address set forth below
for such Party:
To NeuralStem: To Gene Logic:
000 Xxxxxxxxxx Xxxxx 000 Xxxxxx Xxxxxxx Xxxx
Xxxxxxx Xxxx, XX 00000 Xxxxxxxxxxxx, Xxxxxxxx 00000
Attn: Chief Executive Officer Attn: Chief Financial Officer
Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
or to such other address as to which the Party has given written notice thereof.
Such notices shall be deemed given upon receipt.
10.
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9.6 HEADINGS. The headings appearing herein have been inserted solely
for the convenience of the parties hereto and shall not affect the construction,
meaning or interpretation of this Agreement or any of its terms and conditions.
9.7 NO IMPLIED LICENSES. No right or license under any patent
application, issued patent, know-how or other proprietary information is granted
or shall be granted by implication. All such rights or licenses are or shall be
granted only as expressly provided in the terms of this Agreement.
9.8 FORCE MAJEURE. No failure or omission by the parties hereto in the
performance of any obligation of this Agreement shall be deemed a breach of this
Agreement nor shall it create any liability if the same shall arise from any
cause or causes beyond the reasonable control of the affected Party, including,
but not limited to, the following, which for purposes of this Agreement shall be
regarded as beyond the control of the Party in question: acts of nature; acts or
omissions of any government; any rules, regulations, or orders issued by any
governmental authority or by any officer, department, agency or instrumentality
thereof; fire; storm; flood; earthquake; plague of epic proportion; accident;
war; rebellion; insurrection; riot; invasion; strikes; and labor lockouts;
provided that the Party so affected shall use its best efforts to avoid or
remove such causes of nonperformance and shall continue performance hereunder
with the utmost dispatch whenever such causes are removed.
9.9 SURVIVAL. Sections 3.1, 3.2, 3.3, 3.4, 4.1, 4.2, 6.2, 6.3, 7, 8
(including the provisions therein that are contemplated to continue following
termination), 9.1, 9.4 and 9.10 shall survive the termination or expiration of
this Agreement.
9.10 ENTIRE AGREEMENT. This Agreement, including the exhibits and
schedules hereto, constitutes the entire understanding between the parties with
respect to the subject matter contained herein and supersedes any and all prior
agreements, understandings and arrangements whether oral or written between the
parties relating to the subject matter hereof.
9.11 AMENDMENTS. No amendment, change, modification or alteration of
the terms and conditions of this Agreement shall be binding upon either Party
unless in writing and signed by the Party to be charged.
9.12 INDEPENDENT CONTRACTORS. It is understood that both parties hereto
are independent contractors and are engaged in the operation of their own
respective businesses, and neither Party hereto is to be considered the agent or
NeuralStem of the other Party for any purpose whatsoever. Neither Party has any
authority to enter into any contracts or assume any obligations for the other
Party or make any warranties or representations on behalf of the other Party.
9.13 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
11.
16
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their duly authorized officers as of the date first above written.
GENE LOGIC INC. NEURALSTEM BIOPHARMACEUTICALS, LTD.
By:/s/ Xxxx Xxxxxxx By: /s/ I. Xxxxxxx Xxxx
------------------------------- -----------------------------
Xxxx Xxxxxxx, President & COO Name: I. Xxxxxxx Xxxx, CEO
12.
17
SCHEDULE 1.13
STEMEXPRESS BASE INFORMATION CONTENT
[***]
i.
*CONFIDENTIAL TREATMENT REQUESTED
18
SCHEDULE 5.2
WIRE TRANSFER PAYMENT INSTRUCTIONS
To Gene Logic:
Bank: Investors Bank & Trust Company
Location: 000 Xxxxxxxxx
Xxxxxx, XX 00000
ABA #: [***]
For further credit to client funds #: [***]
Account Name: GENE LOGIC INC.
Account #: [***]
ii
*CONFIDENTIAL TREATMENT REQUESTED
19
SCHEDULE 9.1
[***]
iii
*CONFIDENTIAL TREATMENT REQUESTED
