THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL
TREATMENT REQUEST. REDACTED MATERIAL IS BRACKETED ON PAGES 1, 2, 5, 6, 7 AND 11
AND PORTIONS OF SCHEDULE 2.3 AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION.
LICENSE AND OPTION AGREEMENT
This License and Option Agreement ("Agreement") is dated as of March
6, 1995, between Apollon, Inc., a Pennsylvania corporation ("Apollon") and
Centocor, Inc., a Pennsylvania corporation ("Centocor").
BACKGROUND
Apollon and Centocor are parties to a certain Marketing and
Development Agreement dated as of June 25, 1992, as amended by Amendment No. 1
to Marketing and Development Agreement dated October 15, 1994 (as amended, the
"Development Agreement").
Pursuant to the Development Agreement, Centocor has the right to
provide certain funding for research, experimentation and development of certain
products by Apollon, in exchange for Centocor's right to commercialize such
products.
Centocor now desires to waive its existing funding and
commercialization rights under the Development Agreement in exchange for the
grant by Apollon to Centocor of (i) an exclusive, royalty-bearing license to
certain technology and patents in the Field (as defined herein) and (ii) an
option to obtain an exclusive, royalty-bearing sublicense under certain
University Licenses (as defined herein) in the Field, as further set forth in
this Agreement, and Apollon desires to grant such licenses and options to
Centocor in exchange for Centocor's waiver of its funding and commercialization
rights and certain other consideration.
NOW, THEREFORE, the parties hereto, intending to be legally bound,
hereby agrees as follows:
ARTICLE I
TERMINATION OF DEVELOPMENT AGREEMENT
The Development Agreement, except as provided in the following
sentence, is hereby terminated and Apollon and Centocor shall have no further
rights or obligations thereunder. Notwithstanding anything contained herein to
the contrary, the provisions of Article II of the Development Agreement as they
relate to the [ ] shall not terminate and shall remain in full force and
effect.
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Contemporaneously with the execution and delivery of this Agreement, Apollon is
executing and delivering an Assignment pursuant to which Apollon is transferring
and conveying to Centocor all rights Apollon has to certain [ ] and [ ]
compounds.
ARTICLE II
DEFINITIONS
Unless otherwise provided, capitalized terms used herein shall have
the following meanings:
2.1 "Affiliate" of a particular Person means any other Person which,
directly or indirectly, controls, is controlled by, or is under common control
with such particular Person. The term "control" (including, with correlative
meaning, the terms "controlled by" and "under common control with"), as used
with respect to any Person, means the possession, directly or indirectly, of the
power to vote fifty percent (50%) or more of the outstanding voting securities
of such Person, or to direct or cause the direction of the management and
policies of such Person, whether through the ownership of voting securities, by
contract or otherwise.
2.2 "Apollon Knowhow" means all Knowhow owned by Apollon or its
Affiliates on the date hereof or at any time prior to March 6, 1998.
2.3 "Apollon Patent Rights" means any Patents owned by Apollon or
its Affiliates and any future Patents owned by Apollon or its Affiliates which
are necessary for the development, manufacture, use, marketing or sale of
Product employing Apollon Knowhow. A listing of Apollon Patent Rights as of the
date of this Agreement is set forth on Schedule 2.3 hereof.
2.4 "Dollars" or "$" means United States Dollars.
2.5 "FDA" means the United States Food and Drug Administration or
any successor agency.
2.6 "Field" means cancer, and shall expressly exclude (i) any
product directed at any viral, fungal or bacterial antigen and (ii) any product
directed at any V[alpha] or V(beta) antigen.
2.7 "Force Majeure" means any occurrence that prevents or
substantially interferes with the performance by a
-2-
reason of any act of god, flood, fire, explosion, breakdown of plant, strike,
lockout, labor dispute, casualty, accident, war, revolution, injunction, law,
order, proclamation, regulation, ordinance, demand or requirement of any
government or of any subdivision, authority or representative of any such
government, inability to procure or use materials, labor, equipment,
transportation or energy sufficient to meet manufacturing needs without the
necessity of allocation, or any other cause whatsoever, whether similar or
dissimilar to those above enumerated, beyond the reasonable control of such
party, if and only if the party affected shall have used reasonable efforts to
avoid such occurrence and to remedy it promptly if it shall have occurred.
2.8 "Improvements" means those modifications made to Knowhow which
confer an improvement to the design, technology, process or product as measured
by its cost, quality, reliability or acceptability to regulatory authorities.
2.9 "Knowhow" means all proprietary information, methods, biological
materials, processes, techniques, formulae, specifications, protocols, standards
and data, whether or not patentable, including all Improvements, relating to or
useful in the development, manufacture, use, marketing or sale of Product.
2.10 "Net Revenues" with respect to sales for any period and with
respect to any item, means the net proceeds received or to be received, under
generally accepted accounting principles, from sales of Products by Centocor, or
any Affiliate of Centocor, to an unaffiliated third party. In determining such
net proceeds, the amounts received from such sales shall be reduced by related
customary prompt payment and other trade discounts, insurance charges, bad debt
and other allowances, credits for rejected, outdated, spoiled, damaged and
returned goods, tariffs, import/export duties, excise taxes, value added taxes,
sales and use taxes and other similar governmental charges paid in connection
with such sales (except income and franchise taxes) and customary distributors',
consignees, and wholesalers' fees and commissions, but shall not be reduced by
any transportation charges. If any part of Net Revenues is not paid in cash, the
non-cash portion ("Other Property") shall be deemed to have a value equal to the
cash consideration which Centocor would receive from an unaffiliated buyer in an
arm's length sale of such Other Property sold at the same time and place and in
the same quantity as such Other Property is received by Centocor.
2.11 "Patents" means all letters patent and pending applications for
patents of the United States and all countries foreign thereto, including
regional patents, and all reissues, divisions, continuations,
continuations-in-part, extensions (including, without limitation, any extensions
thereof under
-3-
the United States Patent Term Restoration Act or otherwise), substitutions,
renewals, confirmations, supplementary protection certificates, registrations,
revalidations or additions of any of the foregoing, as applicable.
2.12 "Person" means an individual, a partnership, a joint venture, a
corporation, a trust, an estate, an unincorporated organization, a government or
any department or agency thereof, or other entity.
2.13 "Product" means any pharmaceutical formulation employing
deoxyribo or ribo nucleic acid based vaccine technology.
2.14 "Quarter" means any calendar quarter beginning or ending during
the term of this Agreement; provided that the first Quarter shall be the period
beginning on the date hereof and ending on the last day of the calendar quarter
in which such date occurs, and the last Quarter shall be the period beginning on
the first day of the last calendar quarter before the date this Agreement is
terminated and ending on the date this Agreement is terminated.
2.15 "University License" means any license or rights granted to
Apollon, at any time, under any Patent or Knowhow by (i) the Trustees of the
University of Pennsylvania; (ii) the Wistar Institute of Anatomy and Biology;
(iii) the Institute of Biotechnology and Advanced Molecular Medicine; or (iv)
any other third party licensor, which are necessary or useful for the
development, manufacture, use, marketing or sale of Product. Any such Patent or
Knowhow under a University License, for which Centocor has exercised its Option
pursuant to Section 3.2, shall be referred to herein respectively, as a
"Sublicensed Patent" and "Sublicensed Knowhow".
ARTICLE III
GRANT OF LICENSE; OPTION; GRANT BACK
3.1 Apollon hereby grants to Centocor, under the Apollon Patent
Rights and Apollon Knowhow, an exclusive, worldwide right and license, including
the right to sublicense (with the prior written consent of Apollon, which shall
not be unreasonably withheld), to develop, make, have made, use, market and
sell, including the right to sell for resale, Product in the Field.
3.2 To the extent Apollon has the right to grant sublicenses under
any University Licenses, Apollon hereby grants to Centocor an exclusive,
irrevocable option (the "Option") to
-4-
obtain from Apollon one or more exclusive sublicenses ("Sublicense") under any
University License(s), solely for use in the Field. To the extent Apollon does
not have the right to grant sublicenses under any University Licenses, Apollon
shall use reasonable commercial efforts to obtain such right to sublicense.
Centocor may exercise the Option, from time to time, by providing written notice
of such exercise to Apollon which specifically identifies the University
License(s) which Centocor elects to sublicense, not less than ten days prior to
the date which Centocor proposes as the effective date for such Sublicense under
the Option. The Sublicense shall be for the same term as the applicable
University License and shall provide to Centocor all of the rights of Apollon
under the applicable University License solely for use in the Field. Subject to
the provisions of Article V hereof, with respect to any Sublicense, Centocor
shall pay royalties to Apollon [ ] on sales of Product in
the amounts equal to the [
] arising from such sales of
Product. Apollon shall not cause or allow, through any action or inaction, any
impairment in Centocor's ability to obtain any Sublicense as provided in this
Section 3.2.; provided, however, that in the event Apollon obtains a University
License which does not permit Apollon to grant a Sublicense to Centocor, and
Apollon had used reasonable efforts to obtain the right to grant such a
Sublicense, such event shall not constitute a breach by Apollon of this Section
3.2 or of this Agreement.
3.3 Centocor hereby grants to Apollon a non-exclusive, royalty free,
worldwide license solely for applications outside of the Field, to any
Improvements owned by Centocor or its Affiliates at any time prior to March 6,
1998 ("Centocor Improvements"). Centocor hereby grants to Apollon a nonexclusive
option to obtain from Centocor a non-exclusive, royalty bearing license under
any Patents owned by Centocor or its Affiliates covering the Centocor
Improvements; such license to be negotiated in good faith by Centocor and
Apollon and on the terms and conditions as they shall mutually agree.
ARTICLE IV
MILESTONE PAYMENTS
4.1 With respect to each Product developed by Centocor for which any
of the following milestones are accomplished, Centocor shall pay to Apollon the
amounts set forth below:
[ ]
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[ ]
[ ]
[ ]
4.2 Centocor shall notify Apollon within ten (10) days after the
occurrence of any event which created a Centocor payment obligation under this
Article IV and the applicable payment shall accompany such notice. Centocor
shall provide Apollon on each June 1 and December 1 with written reports,
setting forth in such detail as Apollon may reasonably request, the progress of
the development, evaluation, testing and commercialization of each Product under
development. Centocor shall also notify Apollon within thirty (30) days
following the first commercial sale of any Product. For the purposes of this
Article IV, each Product directed at a different target antigen shall be deemed
to be a new Product.
ARTICLE V
ROYALTY PAYMENTS
5.1 In countries where Products are covered by a valid claim (a
"Claim") of an issued, unexpired patent under the Apollon Patent Rights, or
under a Sublicensed Patent, Centocor shall pay to Apollon on a quarterly basis,
within 45 days after the end of each Quarter, the "Royalty Amount" (determined
in accordance with Section 5.2 below) on sales of such Products sold by
Centocor, or any Affiliate of Centocor, to unaffiliated third parties, during
such Quarter; which payment shall include and fully satisfy Centocor's
obligations to pay any [ ] on account of such sales pursuant
to Section 3.2 hereof.
5.2 The Royalty Amount shall be determined as follows:
[ ]
[ ]
----------------------------- -----------------------------
[ ] [ ]
-6-
[ ] [ ]
[ ] [ ]
[ ] [ ]
[ ] [ ]
[ ] [ ]
[ ] [ ]
5.3 In countries where Products which incorporate Apollon Knowhow or
Sublicensed Knowhow are not covered by a Claim, Centocor shall pay to Apollon,
on a quarterly basis, within 45 days after the end of each Quarter, an amount
equal to the [ ]
5.4 Any payment due pursuant to Section 5.1 or 5.3 hereof shall be
payable in Dollars without deduction for or on account of any present or future
taxes, duties or other charges levied or imposed by any governmental or
political authority through withholding or deduction with respect to any such
payments to the extent permitted by law (except to the extent any such
withholding or deduction for or on account of any United States federal, state
or local tax, duty or other charge provides a credit or other benefit to Apollon
or is a withholding of tax on or measured by the net income of Apollon). If any
such taxes, duties or other charges are so levied or imposed, or any such
withholding or deduction is required by law, Centocor will make additional
payments in such amounts so that every net payment under this Agreement, after
any required withholding, deduction or payment for or on account of any such
present or future taxes, duties or other charges, will not be less than the
amount provided for herein. Centocor shall furnish promptly to Apollon official
receipts evidencing such withholding or deduction. Any Net Revenues received in
a currency other than Dollars shall be deemed to be equal to the amount of
Dollars obtained by converting the outstanding amount of currency of such Net
Revenues into Dollars at the average spot rate for the purchase
-7-
of Dollars with such currency as quoted by Xxxxxx Guaranty Trust Company of New
York at approximately 9:00 A.M. (New York City time) on the last 10 business
days of the Quarter with respect to which such payment is made.
5.5 Each payment pursuant to Section 5.1 or 5.3 hereof shall be
accompanied by a summary of the operations that resulted in such payment. Such
report shall be in such detail as Apollon reasonably requests and shall be
signed by an officer of Centocor.
5.6 Any payment under Article IV or Section 5.1 or 5.3 hereof, which
is not made within fifteen (15) days following the date when due, shall accrue
interest thereon from and including such date and until but excluding the date
of payment at a rate per annum equal to one percent (1%) above the prime rate,
as announced by Xxxxxx Guaranty Trust Company of New York for such date (based
on a 365-day year) or, if such rate is in excess of the rate then permitted by
applicable law, at the highest rate then so permitted.
5.7 Centocor shall keep and maintain, in accordance with generally
accepted accounting principles, books of account and other records with respect
to Net Revenues and the payments due under Section 5.1 and 5.3. Apollon shall
have the right upon prior notice to Centocor, not more than once in each Quarter
nor more than once in respect of any Quarter, through an independent public
accountant selected by Apollon and acceptable to Centocor, which acceptance
shall not unreasonably be refused, to have access during normal business hours
to those books and records of Centocor as may reasonably be necessary to verify
the accuracy of the payments due under Section 5.1 and 5.3 hereof in respect of
any Quarter ending not more than thirty-six (36) months prior to the date of
such notice. If such independent public accountant's report shows any
underpayment of the payment amounts due to Apollon under Sections 5.1 or 5.3
hereof, within thirty (30) days after Centocor's receipt of such report,
Centocor shall remit or shall cause its Affiliate to remit to Apollon (a) the
amount of such underpayment and (b) if such underpayment exceeds five percent
(5%) of the total of such amounts owed for the Quarter then being reviewed, the
reasonable and necessary fees and expenses of such independent accountant
performing the audit. Otherwise such fees and expenses shall be borne by
Apollon. Any overpayment shall be fully creditable against any future payment
amounts due under Section 5.1 or 5.3 hereof. All records and other information
required pursuant to this Section 5.7 shall be maintained for a four-year period
following the year in which any such Net Revenues were earned or payments due
under Section 5.1 and 5.3 were made. The provisions of this Section 5.7 shall
survive any termination of this Agreement.
-8-
5.8 Centocor's obligation to make payments to Apollon pursuant to
Sections 5.1 and 5.3 hereof shall terminate in each country on the later of (i)
the expiration date of the last-to-expire issued patent under the Apollon Patent
Rights or a Sublicensed Patent which covers the Product; or (ii) December 31,
2014.
ARTICLE VI
TERMINATION
6.1 If either party should default in a material manner with respect
to any material provision of this Agreement and the other party shall give the
defaulting party written notice of such default, the defaulting party shall have
sixty (60) days to cure such default. If such default is not cured within such
sixty-day period, the non-defaulting party shall have the right, upon notice to
the defaulting party and without prejudice to any other rights the
non-defaulting party may have, to terminate this Agreement unless the defaulting
party is in the process of attempting in good faith to remedy such default, in
which case the sixty-day cure period shall be extended by an additional forty
five (45) days.
ARTICLE VII
CENTOCOR COVENANTS
7.1 Centocor shall use reasonable commercial efforts to develop and
commercialize Products.
7.2 Without the prior written consent of Apollon, which shall not be
unreasonably withheld, Centocor shall not authorize or sponsor any research or
development of the Product by any third party.
7.3 Without the prior written consent of Apollon, which shall not be
unreasonably withheld, Centocor shall not authorize or direct any third party to
manufacture any Product.
ARTICLE VIII
REPRESENTATIONS AND WARRANTIES
8.1 Each of Apollon and Centocor hereby represents and warrants to
the other that the execution and delivery by it of this Agreement and the
consummation by it of the transactions contemplated by this Agreement have been
duly authorized by all
-9-
requisite action and will not contravene any law or regulation, any order,
award, judgment or decree of any court or governmental instrumentality and will
not violate, conflict with, or constitute a default under its Articles of
Incorporation or its Bylaws, or any material indenture, mortgage, deed of trust,
agreement, license or other instrument applicable to it or any of its Affiliates
or by which it or any of its Affiliates is bound.
8.2 Apollon hereby further represents and warrants to~ Centocor
that:
(i) to Apollon's Knowledge, Apollon is the exclusive owner of
the Apollon Knowhow and the Apollon Patent Rights and has the full right to
grant the rights and perform the obligations contemplated by this Agreement;
(ii) Apollon has the right to grant Sublicenses under the
University Licenses from (i) the Trustees of the University of Pennsylvania and
(ii) the Institute of Biotechnology and Advanced Molecular Medicine; and
(iii) to Apollon's knowledge, the inception, development and
reduction of practice of the Apollon Knowhow and the Apollon Patent Rights has
not constituted or involved the misappropriation of trade secrets or other
rights of any other Person.
8.3 EXCEPT AS OTHERWISE SET FORTH IN THIS ARTICLE VIII, WITH RESPECT
TO THE PRODUCT AND THE TECHNOLOGY LICENSED OR SUBLICENSED TO CENTOCOR HEREUNDER,
APOLLON MAKES NO REPRESENTATIONS AND WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING
BUT NOT LIMITED TO REPRESENTATIONS OR WARRANTIES (i) OF COMMERCIAL UTILITY (ii)
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR (iii) THAT THE USE OF
THE PRODUCT OR THE TECHNOLOGY LICENSED OR SUBLICENSED TO CENTOCOR HEREUNDER WILL
NOT INFRINGE ANY PATENT, COPYRIGHT OR TRADEMARK OR OTHER PROPRIETARY OR PROPERTY
RIGHTS OF OTHER PERSONS.
ARTICLE IX
INDEMNIFICATION
9.1 Centocor shall defend, indemnify and hold Apollon, its
Affiliates and their respective directors, officers, employees and agents,
harmless from and against any and all damages, losses, claims, actions, costs
and expenses, including reasonable attorneys' fees ("Losses"), arising out of or
resulting from (i) the breach or falsity of any of Centocor's representations or
warranties contained in this Agreement, (ii) the manufacture, use, handling,
storage, sale or other
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disposition of the Product by Centocor or (iii) any negligence or willful
misconduct of Centocor relating to the Product.
9.2 Apollon shall defend, indemnify and hold Centocor, its
Affiliates and their respective directors, officers, employees and agents
harmless from and against any and all Losses arising out of or resulting from
(i) the breach or falsity of any of Apollon's representations or warranties
contained in this Agreement or (ii) any activities of Apollon pursuant to the
license granted by Centocor to Apollon under Section 3.3 hereof.
9.3 The provisions of Article IX shall survive any termination of
this Agreement.
ARTICLE X
PAYMENTS
10.1 In partial consideration for the execution and delivery by
Apollon of this Agreement, Centocor shall pay to Apollon: (i) [ ] upon
Apollon's execution and delivery of this Agreement, (ii) [ ] on the date
which is 90 days from the date of this Agreement and (iii) [ ] on the date
which is 180 days from the date of this Agreement. The aggregate amount of the
payments made by Centocor to Apollon pursuant to this Article X (the "Payment
Amount") shall be fully creditable against any amounts which become due from
Centocor to Apollon pursuant to the provisions of Article IV or Sections 5.1 or
5.3 of this Agreement ("Milestone/Royalty Amounts"); provided that with respect
to each Milestone/Royalty Amount due, [ ] of such amount
may be satisfied by credit of the Payment Amount, the balance of such amount due
shall be paid in cash and the unapplied amount of the Payment Amount shall be
carried over and applied to future Milestone/Royalty Amounts due, subject to
foregoing [ ] limitation.
ARTICLE XI
CONFIDENTIALITY
11.1 Except to the extent disclosure is reasonably necessary in
filing or prosecuting patent applications, prosecuting or defending litigation
or complying with applicable governmental regulations, Apollon shall maintain in
strictest confidence, and shall ensure that its Affiliates and its and their
employees, agents and representatives maintain in strictest confidence all
proprietary and confidential information which is provided by Centocor to
Apollon, including but not limited to,
-11-
Centocor's inventions, discoveries, improvements and methods, business plans,
marketing techniques or plans, manufacturing and other plant designs, location
of operations, and any other information affecting the business operations of
Centocor ("Centocor Information"), and shall not use, publish, disseminate, or
disclose, in any manner, to any person any Centocor Information unless: (i)
Apollon is legally required to do so, (ii) the Centocor Information is already
or later becomes in the public domain through no fault of Apollon or (iii) the
Centocor Information was already known by Apollon before receipt from Centocor,
as shown by contemporaneous written records.
11.2 Except to the extent disclosure is reasonably necessary in
filing or prosecuting patent applications, prosecuting or defending litigation
or complying with applicable governmental regulations, Centocor shall maintain
in strictest confidence, and shall ensure that its Affiliates and its and their
employees, agents and representatives maintain in strictest confidence, all
proprietary and confidential information of Apollon which is provided by Apollon
to Centocor, including but not limited to, Apollon's inventions, discoveries,
improvements and methods, business plans, marketing techniques or plans,
manufacturing and other plant designs, location of operations, and any other
information affecting the business operations of Apollon ("Apollon
Information"), and shall not use, publish, disseminate, or disclose, in any
manner, to any person, any Apollon Information unless: (i) Centocor is legally
required to do so, (ii) the Apollon Information is already or later becomes in
the public domain through no fault of Centocor or (iii) the Apollon Information
was already known by Centocor before receipt from Apollon, as shown by
contemporaneous written records.
11.3 The provisions of Article XI shall survive any termination of
this Agreement.
ARTICLE XII
MISCELLANEOUS
12.1 Assignment. Neither this Agreement nor any right or obligation
arising hereunder may be assigned or delegated, in whole or in part, by either
party without the prior written consent of the other, which consent shall not be
unreasonably withheld.
12.2 Entire Agreement. This Agreement sets forth and constitutes the
entire agreement between the parties with respect to the subject matter hereof,
and supersedes any and all prior agreements, understandings, promises and
representations, whether
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oral or written, made by either party to the other concerning the subject matter
hereof and the terms applicable hereto.
12.3 Severability. If any provision of this Agreement is or becomes
or is deemed to be invalid, illegal or unenforceable in any jurisdiction, such
provision shall be ineffective only to the extent of such invalidity, illegality
or unenforceability and the remainder of this Agreement shall remain in full
force and effect.
12.4 Specific Performance. Each of Apollon and Centocor agrees that
remedies at law may be inadequate to protect against breach or threatened breach
of this Agreement, and each hereby agrees that in the event of a breach or a
threatened breach by a party hereto, and in addition to any other remedy
provided herein or by law or in equity, the other party shall be entitled to
appropriate injunctive relief or to obtain specific performance in any court of
competent jurisdiction without proof that the payment of damages would be
inadequate compensation.
12.5 Benefits of this Agreement. Nothing in this Agreement shall be
construed to give to any Person other than Apollon and Centocor any legal or
equitable right, remedy or claim under this Agreement. This Agreement shall be
for the sole and exclusive benefit of Apollon and Centocor.
12.6 Choice of Law. This Agreement shall be governed by the internal
laws of the Commonwealth of Pennsylvania without regard to conflicts of law
principles.
12.7 Amendments and Waivers. This Agreement may not be released,
discharged, amended or modified in any manner except by an instrument in writing
signed by duly authorized officers of both parties hereto. No waiver of any
right under this Agreement shall be deemed effective unless contained in a
writing signed by the party charged with such waiver. No waiver of any right
shall be deemed to be a waiver of any future such right or of any other right
arising under this Agreement.
12.8 Further Assurances. At the request of either party hereto, the
other party shall execute and deliver from time to time such further instruments
and shall provide each reasonable cooperation and assistance as shall be
necessary or reasonably appropriate to effectuate the purposes of this
Agreement.
12.9 Headings. Section headings contained in this Agreement are
included for convenience only and form no part of the agreement between the
parties.
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12.10 Notices. Notices required or permitted hereunder shall be in
writing and shall be sent to each party as follows:
If to Centocor, to:
Centocor, Inc.
Xxx Xxxxx Xxxxxx Xxxxxxx
Xxxxxxx, XX 00000
Attention: Secretary
Telefax: (000) 000-0000
If to Apollon, to:
Apollon, Inc.
Xxx Xxxxx Xxxxxx Xxxxxxx
Xxxxxxx, XX 00000
Attention: President
Telefax: (000) 000-0000
or to such other address as such party may hereafter specify in writing, and
shall be deemed given on the earlier of (i) physical delivery, (ii) if given by
facsimile transmission, when such facsimile is transmitted to the telephone
number specified in this Agreement and telephone confirmation of receipt thereof
is received, and (iii) the next day following mailing by prepaid overnight or
express mail.
12.11 Force Majeure. Each of the parties shall be excused from
performing such acts required hereunder which are prevented by, or whose purpose
is frustrated by, Force Majeure.
12.12 No Agency. The parties acknowledge that nothing in this
Agreement renders either party an agent of the other for any purpose whatsoever.
Except as otherwise provided herein, without the specific prior written approval
of the other party, neither party has authority to, and shall not, enter into
any contract, make any representation, give any warranty, incur any liability or
otherwise act on behalf of the other.
12.13 No Implied License. Nothing in this Agreement is intended to
or shall be construed to create, confer, give effect to or otherwise imply in
either party any license, right or property interest in any Knowhow, Patent
Rights or other intellectual property rights of the other except as expressly
provided in Article III hereof.
12.14 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original and all of which shall
constitute together but one and the same document.
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IN WITNESS WHEREOF, Centocor and Apollon have caused this Agreement
to be executed as of the date first set forth above.
APOLLON, INC. CENTOCOR, INC.
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxx Xxxxx
-------------------------- --------------------------
Title: Vice President Title: Vice President
---------------------- ----------------------
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SCHEDULE 2.3
1. [ ]
Title: Compositions and Methods for Delivery of Genetic
Material
Inventor: X. Xxxxxxx
Filed: April 1, 1994
2. [
3.
]
4. [ ]
Title: Multifunctional Molecular Complexes for Gene
Transfer to Cells
Inventor: X. Xxxxxx
Filed: September 28, 1994
