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EXHIBIT 10.25
TECHNOLOGY DEVELOPMENT AGREEMENT
THIS TECHNOLOGY DEVELOPMENT AGREEMENT (this "Agreement") dated as of
December 6, 1996 by and among VAXCEL, INC., a Delaware corporation ("Vaxcel"),
and ZYNAXIS VACCINE TECHNOLOGIES, INC., a Pennsylvania corporation ("Zynaxis").
W I T N E S S E T H:
WHEREAS, pursuant to that certain License Agreement dated July 1, 1987
by and between Southern Research Institute ("Southern") and Molecular
Engineering Associates, Ltd., as amended, supplemented, restated, or otherwise
modified from time to time (the "Original License Agreement"), Zynaxis has an
exclusive right and license to certain oral vaccine microencapsulation
technology (the "PLG Technology");
WHEREAS, Zynaxis also owns certain oral vaccine delivery technology
related to compounds which bind to mucosal tissues (the "Mucoadhesive
Technology"); and
WHEREAS, Vaxcel and Zynaxis plan to enter into a business combination
transaction that will take several months to consummate, and Vaxcel wishes to
develop the PLG Technology and the Mucoadhesive Technology (collectively
referred to herein as the "Technology") during the time period between
execution of this Agreement and the consummation of the planned business
combination transaction;
NOW, THEREFORE, in consideration of the foregoing and the other mutual
promises, covenants and agreements set forth in the other agreements being
executed by Vaxcel and Zynaxis on the date of this Agreement, the parties
hereto, intending to be legally bound, agree as follows;
ARTICLE I
CONDITION PRECEDENT
The parties acknowledge and agree this Agreement shall not take effect
unless and until, and only in conjunction with, the execution of that certain
Agreement and Plan of Merger and Contribution by and among Cytrx Corporation,
Vaxcel Merger Subsidiary, Inc., Zynaxis, Inc., and Vaxcel (the "Merger
Agreement").
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF ZYNAXIS
2.1 LICENSE TO TECHNOLOGY, ETC. Zynaxis represents and warrants that,
pursuant to the Original License Agreement, Zynaxis has an exclusive right and
license to make, have made for it, use and sell throughout the world the PLG
Technology, to grant sublicenses to make, have made for it, use and sell
throughout the world the PLG Technology, and to sell, transfer, or assign any
or all of its rights and obligations under the Original License Agreement with
the written consent of SRI, which consent shall not be unreasonably withheld.
Zynaxis further represents and warrants that it is the owner of all rights in
the Mucoadhesive Technology and possesses full right and authority to grant to
Vaxcel the rights set forth in this Agreement. In addition, Zynaxis represents
and warrants that it has the right to enter into and fully perform this
Agreement, and Zynaxis' performance of this Agreement will in no way infringe
upon or violate any applicable law, rule or regulation, any contract with any
third party or any rights of any third person, including, without limitation,
rights of patent, trade secret, trademark or copyright.
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2.2 RELEVANT INFORMATION. Zynaxis represents and warrants that it will
make available to Vaxcel on or prior to the Effective Date of this Agreement,
or as soon thereafter as practicable, all documents available to Zynaxis which
are relevant to the Technology. Zynaxis further represents and warrants that it
will continue to make available to Vaxcel during the term of this Agreement all
documents and information available to it which are relevant to the Technology.
2.3 NO OTHER UNDERTAKINGS. Zynaxis represents and warrants that the
Technology is not subject to any agreement, joint venture, undertaking,
commitment or understanding of any kind or nature between Zynaxis and any other
person, firm, corporation, joint venture, partnership or other entity with
respect to or relating in any way to the contemplated activities of Vaxcel
which would materially interfere with the contemplated activities of Vaxcel,
except for this Agreement and except for that certain Development and License
Agreement by and between Zynaxis, Inc. and ALK A/S dated September 21, 1995
(the "Development and License Agreement").
2.4 FURTHER ASSURANCES. Zynaxis represents and warrants that it will
promptly execute and deliver to Vaxcel such further documents and take such
further action as may be reasonably requested by Vaxcel in order to more
effectively carry out the intent and purpose of this Agreement.
2.5 CORPORATE EXISTENCE AND APPROVALS. Zynaxis represents and warrants
that it is a corporation validly existing under the laws of the Commonwealth of
Pennsylvania, that no authorization, consent, approval, or license is or will
be necessary to the taking by Zynaxis of any action contemplated by this
Agreement, and that this Agreement, when executed, constitutes a legal, valid,
binding obligation of Zynaxis.
ARTICLE III
REPRESENTATIONS, WARRANTIES, AND COVENANTS OF VAXCEL
3.1 ACTIVITIES CONSISTENT WITH ORIGINAL LICENSE AGREEMENT. Vaxcel
agrees that all Development Activities (as defined herein) relating to the PLG
Technology shall be consistent with and subject to any limitations set forth in
the Original License Agreement.
3.2 RELEVANT INFORMATION. Vaxcel represents and warrants that it
will make available to Zynaxis upon termination of this Agreement all material
documents available to Vaxcel which are relevant to the Technology.
3.3 NO OTHER UNDERTAKINGS. Vaxcel represents and warrants that it is
not subject to any agreement, joint venture, undertaking, commitment or
understanding of any kind or nature with any other person, firm, corporation,
joint venture, partnership or other entity with respect to or relating in any
way to the contemplated activities of Vaxcel which would materially interfere
with the contemplated activities of Vaxcel.
3.4 CORPORATE EXISTENCE AND APPROVALS. Vaxcel represents and warrants
that it is a corporation validly existing under the laws of the State of
Delaware, that no authorization, consent, approval, or license is or will be
necessary to the taking by Vaxcel of any action contemplated by this Agreement,
and that this Agreement, when executed, constitutes a legal, valid, binding
obligation of Vaxcel.
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ARTICLE IV
AGREEMENTS AMONG VAXCEL AND ZYNAXIS
4.1 VAXCEL RIGHT TO DEVELOP. It is the intent of the parties that
there be no interruption in the development of the Technology during the course
of the planned business combination between Zynaxis and Vaxcel. In furtherance
of this desire, Vaxcel is hereby granted during the term of this Agreement the
exclusive right to continue to develop the Technology at its own cost and
expense, subject to the rights granted to ALK A/S in the Development and
License Agreement (the "Development Activities"). By way of explanation and not
in limitation of the foregoing, Vaxcel may, at its option and its sole
discretion, elect to undertake the following activities:
(a) Perform preclinical experiments using the Technology at Vaxcel
facilities or with other third parties and potential sublicensees;
(b) Negotiate and execute agreements for the Technology, including,
but not limited to, materials transfer agreements, research
agreements, option agreements, sublicense agreements, or other similar
agreements, subject to Zynaxis' right of approval as provided for in
Section 4.4;
(c) Conduct research activities involving the Technology and receive
compensation from potential sublicensees regarding such research
activities;
(d) Gain access to data from current Zynaxis sublicensees for the
Technology;
(e) Attend scientific conferences and present information to the
conferences on the Technology;
(f) Handle all patent application matters on behalf of Zynaxis as they
arise, provided that in the event Vaxcel elects not to handle a patent
application matter, then Zynaxis shall have the option to handle such
matter; and
(g) Perform other development activities that may arise during the
term of this Agreement.
Vaxcel shall inform and provide updates to Zynaxis on a regular basis regarding
Development Activities undertaken by Vaxcel.
4.2 NO OBLIGATION TO DEVELOP. The grant in Section 4.1 does not impose
any responsibilities on Vaxcel, including any affirmative duty to promote,
produce, sell, develop, or otherwise commercialize the Technology or
improvements. In addition, nothing in this Agreement shall be deemed to
prohibit Vaxcel from developing, making, using, marketing or otherwise
distributing or promoting products competitive with the Technology, provided
that Vaxcel does not disparage the Technology in doing so.
4.3 ZYNAXIS DEVELOPMENT ACTIVITIES. During the term of this Agreement,
Zynaxis shall not undertake any Development Activities nor disclose any
Confidential Information relating to the Technology without the prior written
consent of Vaxcel. To the extent Zynaxis is made aware of any potential
Development Activities with third parties relating to the Technology, Zynaxis
shall promptly disclose such information to Vaxcel.
4.4 ZYNAXIS APPROVAL OF VAXCEL AGREEMENTS. Zynaxis shall have the
right to approve, prior to execution, any agreement for the Technology
negotiated by Vaxcel pursuant to Section 4.1(b). Vaxcel will submit to Zynaxis
final copies of all proposed agreements for the Technology.
ARTICLE V
TERM AND TERMINATION
5.1 TERM. This Agreement shall commence on the Effective Date and
shall continue in effect until the first to occur of (i) the closing of the
transaction contemplated by the Merger Agreement; or (ii) termination of the
Merger Agreement.
5.2 TERMINATION. If any party materially defaults in the performance
of any of its obligations under this Agreement, which default shall not be
substantially cured within 60 days after notice is given to the
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defaulting party specifying the default, then the party not in default may, by
giving notice to the defaulting party, terminate this Agreement as of a date
specified in such notice of termination. Notwithstanding the foregoing, with
respect to material defaults that cannot reasonably be cured within 60 days, it
shall not be a default under this Section if the defaulting party in good faith
proceeds within 60 days to commence curing said default and thereafter
prosecutes with due diligence the curing of such default to conclusion.
5.3 TERMINATION OBLIGATIONS. Upon the expiration or termination of
this Agreement for any reason each party shall promptly return to the other all
Confidential Information of such party.
5.4 SURVIVAL. Articles 1, 2, 3, 5.3, 5.4, 6(a), 6(b), 7, 8 and 9 shall
survive any termination or expiration of this Agreement.
ARTICLE VI
PAYMENTS
The parties agree that in exchange for the mutual covenants and
promises contained in this Agreement, in the event Vaxcel obtains an agreement
for the Technology as provided for in Section 4.1(b) during the term of this
Agreement, Vaxcel shall retain a maximum of the first Fifty Thousand Dollars
($50,000) received from all such agreements in consideration of the services
performed hereunder. Any amounts received in excess of Fifty Thousand Dollars
($50,000) will be transferred to Zynaxis to be used in satisfaction of Zynaxis'
obligations under the Merger Agreement and the Secured Loan being extended by
Cytrx Corporation in connection with the execution of the Merger Agreement. In
the event that this Agreement is terminated due to the termination of the
Merger Agreement, then the following payment obligations shall apply:
(a) if the Merger Agreement is terminated for a reason described in
Section 11.2(b) of the Merger Agreement, all payments received
following termination of this Agreement as a result of agreements for
the Technology entered into by Vaxcel during the term of this
Agreement shall be divided such that ninety percent (90%) of all
payments are promptly paid to Vaxcel; or
(b) if the Merger Agreement is terminated for any other reason, all
payments received following termination of this Agreement as a result
of agreements for the Technology entered into by Vaxcel during the
term of this Agreement shall be paid to Zynaxis.
ARTICLE VII
CONFIDENTIALITY
7.1 DEFINITION. As used herein, "Confidential Information" means any
and all know-how, developments, data, trade secrets, specifications,
procedures, drawings, and other technical information relating to the
Technology with the exception only of the following:
(a) information that as of the date of receipt by any party is in the
public domain or subsequently enter the public domain without fault of
the recipient;
(b) information that at the time of receipt by any party was known to
the recipient or any of its affiliates as a result of disclosure from
an independent third party who was entitled to make such disclosure;
(c) information that at any time is received in good faith by any
party or any of such party's affiliates from a third party which was
lawfully in possession of the same and had the right to disclose the
same;
(d) information that the parties mutually agree in writing to release
from the terms of this Agreement; and
(e) information disclosed by any party as required by law or
regulation of a duly constituted public authority.
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7.2 OBLIGATION. Each party agrees that it will exert its best efforts
to ensure that Confidential Information will not be disclosed to any
unaffiliated third person, corporation or entity, except as may be required to
grant sublicenses as provided for in Section 4.1, or as may be required to
effect a product or price registration, or to qualify for the benefits of any
health insurance or similar program. Furthermore, Vaxcel agrees not to disclose
Southern's microencapsulation processes and fabrication conditions as disclosed
by Zynaxis to Vaxcel to any affiliated person, corporation or entity without
the written consent of Southern. Each party will advise all of its employees
who may have access to or knowledge of the Confidential Information of the
parties' obligations hereunder and will obtain written confidentiality
agreements from such employees.
ARTICLE VIII
TECHNOLOGY DEVELOPED BY VAXCEL
8.1 During the life of this Agreement, Vaxcel shall promptly disclose
to Zynaxis and Southern, in writing, all inventions or improvements, whether
patentable or not, hereinafter developed, acquired, or controlled by Vaxcel
and/or its sublicensees, if any, relating to the licensed Technology. Such
inventions or improvements shall be included in this Agreement at no additional
cost, the Agreement then to extend and cover all such inventions or
improvements as though specifically enumerated herein as licensed Technology.
8.2 Vaxcel acknowledges that pursuant to the Original License
Agreement Southern shall have the option of filing and prosecuting any patent
applications at its own expense upon such inventions or improvements.
8.3 If Southern elects not to file and prosecute any such patent
applications on such inventions or improvements, then Zynaxis shall have the
option of filing and prosecuting patent applications at its own expense upon
those inventions or improvements.
8.4 If Zynaxis elects not to file and prosecute any such patent
applications on such inventions or improvements, then Vaxcel shall have the
option of filing and prosecuting patent applications at its own expense upon
those inventions or improvements. Title to any such patents shall be in
Southern and the UAB Research Foundation, but such patents shall be exclusively
licensed to Zynaxis under the terms of the Original License Agreement.
ARTICLE IX
MISCELLANEOUS
9.1 APPROVALS AND SIMILAR ACTIONS. Where approval, acceptance,
consent or similar action is required or requested of a party under this
Agreement, such action shall not be unreasonably delayed or withheld.
9.2 BINDING NATURE AND ASSIGNMENT. This Agreement shall be binding on
the parties and their respective successors and assigns. However, no party may
assign its rights or delegate its obligations under this Agreement without the
prior written consent of the other parties, and any such attempted assignment
shall be null and void.
9.3 ENTIRE AGREEMENT. This Agreement, including any schedules or
amendments attached to this Agreement, each of which is incorporated herein for
all purposes, constitutes the entire agreement between the parties with respect
to the subject matter of this Agreement as of the Effective Date and supersedes
any prior
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agreements or arrangements between the parties regarding the subject
matter of this Agreement. This Agreement may be amended, modified or changed
only by a written instrument executed by the parties.
9.4 SEVERABILITY. If any provision of this Agreement is declared or
found to be illegal, unenforceable or void, then the parties shall be relieved
of all obligations arising under such provision, but only to the extent that
such provision is illegal, unenforceable or void, it being the intent and
agreement of the parties that this Agreement shall be deemed amended by
modifying such provision to the extent necessary to make it legal and
enforceable while preserving its intent or, if that is not possible, by
substituting therefor another provision that is legal and enforceable and
achieves the same objective.
9.5 WAIVER. No delay or omission by any party to exercise any right or
power under this Agreement shall impair such right or power or be construed to
be a waiver thereof. A waiver by any party of any of the covenants to be
performed by the other or any breach shall not be construed to be a waiver of
any succeeding breach or of any other covenant. All remedies provided for in
this Agreement shall be cumulative and in addition to and not in lieu of any
other remedies available to any party at law, in equity or otherwise.
9.6 FORCE MAJEURE. Each party shall be excused from performance under
this Agreement for any period and to the extent that it is prevented from
performing any action, in whole or in part, as a result of delays beyond its
reasonable control caused by the other party or by an act of God, war, civil
disturbance, court order, labor dispute, third party nonperformance, or other
cause beyond its reasonable control. Such nonperformance shall not be a default
or a ground for termination of this Agreement. Each party shall endeavor to
promptly remedy the cause of any such nonperformance.
9.7 GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws, other than the choice of law rules, of the State
of Georgia.
9.8 NOTICES. Notices, requests and other communications required or
permitted hereunder shall be given in accordance with the applicable terms of
Section 13 of the Security Agreement dated December 6, 1996, between Cytrx
Corporation and Zynaxis.
9.9 COUNTERPARTS. This Agreement may be executed in several
counterparts, all of which taken together shall constitute a single agreement
between the parties.
9.10 HEADINGS. The article and section headings and the table of
contents used in this Agreement are for reference and convenience only and
shall not enter into the interpretation of this Agreement.
9.11 BENEFICIARIES. This Agreement is solely for the benefit of the
parties and their successors and permitted assigns, and does not confer any
rights or remedies on any other person or entity.
9.12 APPLICABLE LAWS. The parties agree to comply with all applicable
laws, rules, regulations and other provisions enacted or promulgated by any
governmental authority with jurisdiction over the subject matter of this
Agreement relating to the subject matter of this Agreement.
9.13 NO JOINT VENTURE. This Agreement shall not create a partnership
or joint venture between the parties hereto nor give either party the right to
act on behalf of the other party except as explicitly stated herein.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed under seal as of the day and year first above written.
VAXCEL, INC. ZYNAXIS VACCINE
TECHNOLOGIES, INC.
By: /s/ XXXX X. XXXXXX By: /s/ XXXXXX X. XXXXXXXXX
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Name: Xxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxxxxx
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Title: President and Chief
Executive Officer Title: President
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ACKNOWLEDGMENT AND AGREEMENT
The undersigned, Southern Research Institute, acknowledges receipt of
a copy of the within and foregoing Technology Development Agreement (the
"Technology Agreement"). Capitalized terms not otherwise defined herein are
used herein with the respective meanings given them in the Technology
Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the undersigned, the
undersigned agrees as follows:
Section 1. Consent to Technology Agreement. The undersigned consents
to the execution and delivery of the Technology Agreement by Zynaxis in
conjunction and subject to the execution and delivery of the Merger Agreement.
Section 2. Benefits. This Acknowledgment shall be binding upon the
undersigned and its successors and assigns, and shall inure to the benefit of
Vaxcel and its successors and assigns.
IN WITNESS WHEREOF, the undersigned has executed and delivered this
Acknowledgment and Agreement under seal as of the date first written above.
SOUTHERN RESEARCH INSTITUTE
By: /s/
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Title: President
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