EXHIBIT 10.10
LICENSE AGREEMENT
THIS LICENSE AGREEMENT (the "Agreement"), effective as of February 1, 1998
(the "Effective Date"), is entered by and between Asahi Chemical Industry Co.,
Ltd., with a principal place of business at 0-00, Xxxxxxxx 0-Xxxxx, Xxxxxx-xx
Xxxxx, 000, Xxxxx ("Asahi"), and GenVec, Inc. with a principal place of business
at 00000 Xxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx ("GenVec").
BACKGROUND
A. Asahi owns certain Patent Rights (as defined below) relating to tumor
necrosis factor alpha (TNF); and
B. GenVec desires to obtain a license under the Patent Rights, and Asahi
desires to grant such a license to GenVec, on the terms and conditions herein.
NOW, THEREFORE, Asahi and GenVec agree as follows:
1. DEFINITIONS
1.1 "AFFILIATE" means any corporation or other entity which is directly or
indirectly controlling, controlled by or under the common control with GenVec.
For the purpose of this Agreement, "control" shall mean the direct or indirect
ownership of at least fifty percent (50%) of the outstanding shares or other
voting rights of the subject entity to elect directors, or if not meeting the
preceding, any entity owned or controlled by or owning or controlling at the
maximum control or ownership right permitted in the Territory.
1.2 "CONFIDENTIAL INFORMATION" shall mean (i) any proprietary or
confidential information or material in tangible form disclosed hereunder that
is marked as "Confidential" at the time it is delivered to the receiving party,
or (ii) proprietary or confidential information disclosed orally hereunder which
is identified as confidential or proprietary when disclosed and such disclosure
of confidential information is confirmed in writing within thirty (30) days by
the disclosing party.
1.3 "CONTROL" means possession of the ability to grant the license
provided for herein without violating the terms of any agreement or other
arrangement with a third party.
1.4 "FIELD" means all gene therapy (IN VIVO and EX VIVO) applications.
1.5 "LICENSED PRODUCT" means any product which is within the scope of an
issued Valid Claim or was within the scope of an issued Valid Claim.
[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
1.6 "NET SALES" means the gross revenues actually received by GenVec or
its sublicensees from sales of Licensed Products, less (i) normal and customary
rebates, and cash and trade discounts, actually taken, (ii) sales, use and/or
other excise taxes or duties actually paid, (iii) the cost of any packages and
packing, (iv) insurance costs and outbound transportation charges prepaid or
allowed, (v) import and/or export duties actually paid, and (vi) amounts allowed
or credited due to returns.
1.7 "PATENT RIGHTS" means (i) U.S. patent application Serial No. * (filed
* and U.S. Patent No. * (ii) all patent applications and patents which claim
improvements to the subject matter of (i) above; (iii) all divisions,
continuations, continuations-in-part, and substitutions of (i) and (ii) above;
and (iv) all U.S. patents issuing on any of the preceding applications,
including extensions, reissues, and re-examinations; in each case, which is
owned, in whole or part, or Controlled by Asahi.
1.8 "PHASE I", "PHASE II"AND "PHASE III" shall mean Phase I, Phase II, and
Phase III clinical trials, respectively, in each case as prescribed by the U.S.
Food and Drug Administration.
1.9 "REGULATORY APPROVAL" shall mean approval by the U.S. Food and Drug
Administration ("FDA") to market a Licensed Product.
1.10 "TERRITORY" means the United States of America and its territories and
possessions.
1.11 "VALID CLAIM" means (i) a claim of an issued and unexpired U.S. patent
included within the Patent Rights which has not been held unenforceable or
invalid by a court or other governmental agency of competent jurisdiction in the
Territory, and which has not been disclaimed or admitted to be invalid or
unenforceable through reissue or otherwise, or (ii) a claim of a pending U.S.
patent application within the Patent Rights.
2. LICENSE; OPTION
2.1 GRANT TO GENVEC. Asahi hereby grants to GenVec a non-exclusive
license under the Patent Rights to make, have made, import, have imported, use,
sell, have sold, offer for sale and otherwise exploit the Licensed Products in
the Territory for use in the Field. If Asahi acquires the right to extend the
license granted herein to the Affiliates of GenVec, then Asahi shall promptly
notify GenVec and GenVec shall automatically have the right to extend the
license to any of its Affiliates. In the event GenVec extends the license
granted herein to any of its Affiliates, GenVec shall immediately notify Asahi
of the name of such Affiliate. The provisions of this Agreement shall be binding
on such Affiliate, and GenVec shall guarantee the Affiliate's performance of the
obligations under this Agreement.
2.2 *
2.3 SUBLICENSES; RIGHT OF NEGOTIATION. At any particular time during the
term of the * GenVec shall have the right to grant one sublicense of the rights
granted in Section 2.1 above, and if GenVec grants such a sublicense, GenVec
shall not itself practice its licensing rights so long as such
-2-
sublicense remains in effect. In the event the foregoing agreement between Asahi
and * expires or is terminated, GenVec shall have the unrestricted right to
grant sublicenses. In the event GenVec grants a sublicense of the rights in
Section 2.1 above, GenVec shall promptly notify Asahi of the name of such
sublicensee. In the event that any existing or potential sublicensee of GenVec
wishes to acquire a non-exclusive license with respect to intellectual property
owned or Controlled by Asahi relating to * (or fragments or derivatives thereof)
or the use thereof, Asahi agrees to negotiate in good faith with GenVec the
terms and conditions of such a license.
2.4 EXCLUSIVE OPTION. If GenVec has acquired any intellectual property
rights necessary to commercialize Licensed Products in *, and GenVec retains the
legal right to grant to Asahi an option to develop and commercialize Licensed
Products in *, then until the second anniversary of the Effective Date, Asahi
shall have an exclusive option to negotiate and enter into a written agreement
with GenVec with regard to a collaborative license arrangement for the
development and commercialization of Licensed Products in *. The terms and
conditions of such agreement shall be negotiated in good faith by the parties
commencing at such time as Asahi provides GenVec notice that Asahi wishes to
exercise its option.
3. CONSIDERATION
3.1 LICENSE FEE. In partial consideration for the license granted herein,
GenVec shall pay to Asahi a license fee of * within sixty (60) days of the
Effective Date. Such fee shall not be due if GenVec provides notice of its
intent to terminate the Agreement within such sixty (60) day period.
3.2 MILESTONE PAYMENTS. Unless the Agreement is terminated earlier,
within sixty (60) days following the first achievement by GenVec or a
sublicensee of the following milestones with respect to the first Licensed
Product in the Territory, GenVec shall pay Asahi one-time milestone payments, as
follows:
Event Payment
----- -------
Initiation of Phase II clinical trials *
Initiation of Phase III clinical trials *
Regulatory Approval *
The payment under Section 3.1 above and the payments in this Section 3.2 shall
be nonrefundable.
3.3 ROYALTIES.
3.3.1 DURING PATENT TERM. In consideration of the license granted
herein, GenVec shall pay to Asahi a royalty of * of Net Sales of Licensed
Products which, but for the license granted herein would infringe an issued and
unexpired Valid Claim.
3.3.2 AFTER PATENT TERM. In the event that all issued Valid
Claims covering a particular Licensed Product have expired, but royalties are
still due Asahi pursuant to Section 3.7,
-3-
then the royalty due with regard to such Licensed Product shall be * of Net
Sales of such Licensed Product.
3.4 THIRD PARTY ROYALTIES. GenVec and its sublicensee shall be
responsible for any payments due to third parties under licenses or similar
agreements entered by GenVec or its sublicensee relating to the manufacture, use
or sale of Licensed Products in the Territory. GenVec may offset any such
payments made by GenVec or its sublicensee to third parties against royalties
due Asahi pursuant to Section 3.3 above; provided Asahi shall have the right to
receive not less than * of the Net Sales of Licensed Products sold by GenVec or
its sublicensee, except as provided in Section 3.3.2.
3.5 COMBINATION PRODUCTS. In the event that a Licensed Product is sold in
combination as a single product with another active ingredient, component or
other product whose manufacture, sale and use are not covered by a claim within
the Patent Rights for which the combination product is sold, Net Sales from such
sales for purposes of calculating the amounts due under Sections 3.3 above shall
be as reasonably allocated by GenVec between such Licensed Product and such
active ingredient, component or other product, based upon their relative
importance and proprietary protection.
3.6 ONE ROYALTY. No more than one royalty payment shall be due with
respect to a sale of a particular Licensed Product. No multiple royalties shall
be payable because any Licensed Product, or its manufacture, sale or use is
covered by more than one Valid Claim. No royalty shall be payable under Section
3.3 above with respect to sales of Licensed Products among GenVec and its
sublicensee, nor shall a royalty be payable under this Article 3 with respect to
Licensed Products distributed for use in research and/or development, in
clinical trials or as promotional samples.
3.7 ROYALTY TERM. Royalties due under this Article 3 shall be payable on
a Licensed Product-by-Licensed Product basis until the later of (i) the
expiration of the last-to-expire issued Valid Claim covering such Licensed
Product, or (ii) the twelfth anniversary of the Effective Date.
4. PAYMENTS; REPORTS AND RECORDS
4.1 PAYMENTS; CURRENCY. GenVec agrees to pay all royalties due to Asahi
within * after the last day of each half-calendar year in which they accrue. All
payments due hereunder shall be paid in United States dollars.
4.2 TAXES. Any income or other tax that must be withheld on behalf of
Asahi with respect to the royalties owed pursuant to this Agreement shall be
deducted by GenVec from the royalties prior to remittance. Within * after the
last day of each half-calendar year, GenVec shall furnish to Asahi evidence of
any such taxes withheld.
-4-
4.3 ROYALTY REPORTS. GenVec shall deliver to Asahi within * after the end
of each half-calendar year in which Licensed Products are sold a report setting
forth in reasonable detail the calculation of the royalties payable to Asahi for
such half-calendar year, including the Licensed Products sold, the Net Sales
thereof, and all amounts received from sublicensees for sales of Licensed
Products. Such reports shall be Confidential Information of GenVec subject to
Article 6 herein.
4.4 BOOKS AND RECORDS. GenVec shall maintain accurate books and records
which enable the calculation of royalties payable hereunder to be verified.
GenVec shall retain the books and records for each half-calendar year period for
* after the submission of the corresponding report under Section 4.3 hereof.
Upon * prior notice to GenVec, independent accountants selected by Asahi,
reasonably acceptable to GenVec, after entering into a confidentiality agreement
with GenVec, may have access to GenVec's books and records during GenVec's
normal business hours at mutually agreed times to conduct a review or audit once
per calendar year, for the sole purpose of verifying the accuracy of GenVec's
payments and compliance with this Agreement. The accounting firm shall report to
Asahi only whether there has been a royalty underpayment and, if so, the amount
thereof. Any such inspection or audit shall be at Asahi's expense, however, in
the event an inspection reveals underpayment of * or more in any audit period,
GenVec shall pay the costs of the inspection. GenVec shall promptly pay to Asahi
any underpayment identified in such an audit which amount is undisputed by
GenVec, with interest from the date such amount(s) were due at the prime rate
reported by the Chase Manhattan Bank, New York, New York.
5. DILIGENCE
GenVec agrees to use commercially reasonable diligent efforts to develop
and commercialize the Licensed Products and obtain such approvals as may be
necessary for the sale of the Licensed Products in the Territory. GenVec may
conduct such activities itself or through third parties.
6. CONFIDENTIALITY
6.1 CONFIDENTIAL INFORMATION. Except as expressly provided herein, the
parties agree that, for the term of this Agreement and for * thereafter, the
receiving party shall keep completely confidential and shall not publish or
otherwise disclose and shall not use for any purpose except for the purposes
contemplated by this Agreement any Confidential Information furnished to it by
the disclosing party hereto pursuant to this Agreement, except to the extent
that it can be established by the receiving party by competent proof that such
Confidential Information:
(i) was already known to the receiving party, other than under an
obligation of confidentiality, at the time of disclosure;
(ii) was generally available to the public or otherwise part of the
public domain at the time of its disclosure to the receiving party;
-5-
(iii) became generally available to the public or otherwise part of
the public domain after its disclosure and other than through any act or
omission of the receiving party in breach of this Agreement;
(iv) was independently developed by the receiving party as
demonstrated by documented evidence prepared contemporaneously with such
independent development; or
(v) was subsequently lawfully disclosed to the receiving party by a
person other than a party hereto.
6.2 PERMITTED USE AND DISCLOSURES. Each party hereto may use or disclose
information disclosed to it by the other party to the extent such use or
disclosure is reasonably necessary in filing or prosecuting patent applications,
prosecuting or defending litigation, complying with applicable governmental
regulations or otherwise submitting information to tax or other governmental
authorities, conducting clinical trials, or making a permitted sublicense or
otherwise exercising its rights hereunder, provided that if a party is required
to make any such disclosure of another party's Confidential Information, other
than pursuant to a confidentiality agreement, it will give reasonable advance
notice to the latter party of such disclosure and, save to the extent
inappropriate in the case of patent applications, will use its best efforts to
secure confidential treatment of such information prior to its disclosure
(whether through protective orders or otherwise). Notwithstanding this Section
6.2 and Section 4.3 herein, Asahi may, subject to a confidentiality agreement
containing provisions at least as restrictive as those herein, disclose to the
Xxxxxxx Research Institute of the City of Hope, as is reasonably necessary, the
financial terms herein, the payments received and the royalty reports made under
this Agreement.
6.3 CONFIDENTIAL TERMS. The parties agree to make a mutually agreed press
release regarding this Agreement promptly following the Effective Date. Except
as expressly provided herein, each party agrees not to disclose any terms of
this Agreement to any third party without the consent of the other party;
provided, disclosures may be made as required by securities or other applicable
laws, or to actual or prospective investors or corporate partners, or to a
party's accountants, attorneys and other professional advisors.
7. REPRESENTATIONS AND WARRANTIES
7.1 ASAHI. Asahi represents and warrants that: (i) it is a corporation
duly organized validly existing and in good standing under the laws of Japan;
and (ii) the execution, delivery and performance of this Agreement have been
duly authorized by all necessary corporate action on the part of Asahi; (iii) it
is the sole and exclusive owner or exclusive licensee of all right, title and
interest in the Patent Rights; (iv) it has the right to grant the rights and
licenses granted herein, and the Patent Rights are free and clear of any lien,
encumbrance or security interest; (v) it has not previously granted, and will
not grant during the term of this Agreement, any right, license or interest in
and to the Patent Rights, or any portion thereof, inconsistent with the license
granted to
-6-
GenVec herein; and (vi) there are no threatened or pending actions, lawsuits,
claims or arbitration proceedings in any way relating to the Patent Rights.
7.2 GENVEC. GenVec represents and warrants that: (i) it is a corporation
duly organized validly existing and in good standing under the laws of the State
of Delaware; and (ii) the execution, delivery and performance of this Agreement
have been duly authorized by all necessary corporate action on the part of
GenVec.
7.3 EFFECT OF REPRESENTATIONS AND WARRANTIES. It is understood that if
the representations and warranties made by a party under this Article 7 are not
true and accurate, and the other party incurs damages, liabilities, costs or
other expenses as a result, the party making such representations and warranties
shall indemnify and hold the other party harmless from and against any such
damages, liabilities, costs or other expenses incurred as a result.
8. PROSECUTION AND ENFORCEMENT
8.1 ASAHI'S RESPONSIBILITIES. Asahi shall have the sole right to control
the preparation, filing, prosecution and maintenance of the Patent Rights, and
any interference or opposition proceeding relating thereto, using patent counsel
of its choice and at its sole expense; provided, however, that Asahi shall
consult with GenVec regarding the prosecution of any such patent applications
by providing GenVec a reasonable opportunity to review and comment on all
proposed submissions to any patent office at least thirty (30) days before
submittal, and shall incorporate such comments as GenVec may reasonably request.
In addition, Asahi shall keep GenVec reasonably informed as to the status of
such patent applications by promptly providing GenVec copies of all
communications relating to such patent applications that are received from any
patent office.
8.2 PATENT TERM EXTENSIONS. To the extent permitted by applicable law,
GenVec and Asahi shall jointly apply for patent term extensions of patent(s)
within the Patent Rights. If joint applications are not permitted, GenVec shall
have the right to file and diligently seek and obtain such extensions for GenVec
or its sublicensee, in GenVec's name. Asahi agrees to provide reasonable
assistance to facilitate GenVec's efforts to obtain any such extension.
8.3 ENFORCEMENT. If either party hereto becomes aware that any Patent
Rights are being or have been infringed by any third party, such party shall
promptly notify the other party hereto in writing describing the facts relating
thereto in reasonable detail. Asahi shall have the initial right, but not the
obligation, to institute, prosecute and control any action, suit or proceeding
with respect to such infringement, including any declaratory judgment action
(each an "Action"), at its expense; using counsel of its choice. In the event
Asahi fails to initiate or defend any Action involving the Patent Rights within
three (3) months of receiving notice of any infringement, GenVec shall have the
right, but not the obligation, to initiate and control such an Action, at its
expense; provided, GenVec shall be entitled to offset any amount expended in
connection with such Action against up to fifty percent (50%) of royalties due
under Section 3.3. In any such event, Asahi shall cooperate reasonably with
GenVec in connection with any such Action, at GenVec's expense; including
-7-
without limitation, by joining such Action as a party if requested by GenVec.
Any amounts recovered by GenVec in such Action shall be used first to reimburse
Asahi and GenVec for the expenses incurred in connection with such Action and
any remainder shall be treated as Net Sales of Licensed Products pursuant to
Section 3.3.
8.4 INFRINGEMENT CLAIMS. If the practice by GenVec of the license granted
herein results in any allegation or claim of infringement of an intellectual
property right of third party against GenVec, GenVec shall have the exclusive
right to defend any such claim, suit or proceeding, at its own expense, by
counsel of its own choice and shall have the sole right and authority to settle
any such suit; provided, however, Asahi shall cooperate with GenVec, at GenVec's
reasonable request and expense, in connection with the defense of such claim.
9. DISPUTE RESOLUTION
Any dispute under this Agreement (except any dispute relating to the
validity or enforceability of any patent) which is not settled by mutual consent
shall be finally settled by binding arbitration. Any arbitration initiated by
GenVec shall be conducted in Tokyo and administered by the Japan Commercial
Arbitration Association, and any arbitration initiated by Asahi shall be
conducted in Washington, D.C., and administered by the American Arbitration
Association. In each case, the arbitrators shall apply UNCITRAL rules and all
claims, including counterclaims, shall be subject to resolution by the same
group of arbitrators. Any written evidence originally in a language other than
English shall be submitted in English translation accompanied by the original or
a true copy thereof. The costs of the arbitration (including administrative and
arbitrators' fees), shall be shared equally by the parties, and each party shall
bear its own costs and attorneys' and witness' fees incurred in connection with
the arbitration. The decision and/or award rendered by the arbitrator shall be
written, final and non-appealable and may be entered in any court of competent
jurisdiction for a judicial recognition of the decision and an order of
enforcement.
10. INDEMNIFICATION
10.1 INDEMNITY. GenVec shall indemnify, defend and hold harmless Asahi and
its directors, officers and employees (each an "Indemnitee") from and against
any and all liabilities, damages, losses, costs or expenses (including
reasonable attorneys' and professional fees and other expenses of litigation
and/or arbitration) (a "Liability") resulting from a claim, suit or proceeding
brought by a third party against an Indemnitee, arising from or occurring as a
result of activities performed by GenVec or its sublicensees in connection with
the development, manufacture or sale of any Licensed Product, except to the
extent caused by the negligence or willful misconduct of Asahi.
10.2 PROCEDURE. In the event that any Indemnitee intends to claim
indemnification under this Article 10 it shall promptly notify GenVec in writing
of such alleged Liability. GenVec shall have the sole right to control the
defense and settlement thereof. The Indemnitees shall cooperate with the
indemnifying party and its legal representatives in the investigation of any
action, claim or liability covered by this Article 10. The Indemnitee shall not,
except at its own cost, voluntarily
-8-
make any payment or incur any expense with respect to any claim or suit without
the prior written consent of GenVec, which GenVec shall not be required to give.
11. TERM AND TERMINATION
11.1 TERM. The term of this Agreement shall commence on the Effective
Date, and unless earlier terminated as provided in this Article 11, shall
continue in full force and effect on a Licensed Product-by-Licensed Product
basis until there are no remaining royalty payment obligations with respect
thereto.
11.2 TERMINATION FOR CAUSE. If either party materially breaches this
Agreement, the other party may elect to give the breaching party written notice
describing the alleged breach. If the breaching party has not cured such breach
within sixty (60) days after receipt of such notice, the notifying party will be
entitled, in addition to any other rights it may have under this Agreement, to
terminate this Agreement effective immediately; provided, however, if either
party receives notification from the other of a material breach and if the party
alleged to be in default notifies the other party in writing within thirty (30)
days of receipt of such default notice that it disputes the asserted default,
the matter will be submitted to arbitration as provided in Article 9 of this
Agreement. In such event, the nonbreaching party shall not have the right to
terminate this Agreement until it has been determined in such arbitration
proceeding that the other party materially breached this Agreement, and the
breaching party fails to cure such breach within ninety (90) days after the
conclusion of such arbitration proceeding.
11.3 TERMINATION FOR INSOLVENCY. Either party may terminate this Agreement
if the other becomes the subject of a voluntary or involuntary petition in
bankruptcy or any proceeding relating to insolvency, receivership, liquidation,
or composition or the benefit of creditors, if that petition or proceeding is
not dismissed with prejudice within sixty (60) days after filing.
11.4 PERMISSIVE TERMINATION. GenVec may terminate this Agreement with
respect to any patent application or patent within the Patent Rights with thirty
(30) days written notice to Asahi. GenVec shall have no right to terminate this
Agreement pursuant to this Section 11.4 after the expiration of the Patent
Rights.
11.5 EFFECT OF TERMINATION.
(A) ACCRUED RIGHTS AND OBLIGATIONS. Termination of this Agreement for
any reason shall not release any party hereto from any liability which, at the
time of such termination, has already accrued to the other party or which is
attributable to a period prior to such termination, nor preclude either party
from pursuing any rights and remedies it may have hereunder or at law or in
equity which accrued or are based upon any event occurring prior to such
termination.
-9-
(B) RETURN OF CONFIDENTIAL INFORMATION. Upon any termination of this
Agreement, each party shall promptly return to the other party all Confidential
Information received from the other party (except one copy of which may be
retained for archival purposes).
(C) STOCK ON HAND. In the event this Agreement is terminated for any
reason, GenVec and its sublicensee shall have the right to sell or otherwise
dispose of the stock of any Licensed Product then on hand, subject to Articles 3
and 4.
(D) SUBLICENSE. In the event of any termination of this Agreement,
any sublicense granted by GenVec shall remain in force and effect and shall be
assigned by GenVec to Asahi; provided, the financial obligations of any such
sublicensee shall be limited to the amounts GenVec is obligated to pay to Asahi
for the activities of such sublicensee under this Agreement.
11.6 SURVIVAL. Sections 11.5 and 11.6 and Articles 4, 6, 7, 9, 10 and 12
of this Agreement shall survive termination of this Agreement for any reason.
12. MISCELLANEOUS
12.1 GOVERNING LAW. This Agreement, and any proceeding subject to Article
10, shall be governed by and construed in accordance with the laws of the State
of New York, without reference to principles of conflicts of laws.
12.2 INDEPENDENT CONTRACTORS. The relationship of the parties hereto is
that of independent contractors. The parties hereto are not deemed to be agents,
partners or joint venturers of the other for any purpose as a result of this
Agreement or the transactions contemplated thereby.
12.3 ASSIGNMENT. The parties agree that their rights and obligations under
this Agreement shall not be delegated, transferred or assigned to a third party
without prior written consent of the other party hereto. This Agreement shall be
binding upon and inure to the benefit of the parties and their successors and
assigns.
12.4 RIGHT TO DEVELOP INDEPENDENTLY. Nothing in this Agreement will impair
GenVec's right to independently acquire, license, develop for itself, or have
others develop for it, intellectual property and technology performing similar
functions as the Patent Rights or to market and distribute Licensed Products or
other products based on such other intellectual property and technology.
12.5 NOTICES. Any required notices hereunder shall be given in writing by
certified mail or international express delivery service (e.g., DHL) at the
address of each party below, or to such other address as either party may
substitute by written notice. Notice shall be deemed served when delivered or,
if delivery is not accomplished by reason or some fault of the addressee, when
tendered.
If to Asahi: Asahi Chemical Industry Co., Ltd.
-00-
0-00 Xxxxxxxx 0-Xxxxx
Xxxxxx-xx Xxxxx, 000, Xxxxx
Attention: Xx. Xxxxx Xxxxx, General Manager
Licensing and Business Development Group
If to GenVec: GenVec, Inc.
00000 Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: President
with a copy to: Vice President, Corporate Development
12.6 FORCE MAJEURE. Neither party shall lose any rights hereunder or be
liable to the other party for damages or losses (except for payment obligations)
on account of failure of performance by the defaulting party if the failure is
occasioned by war, strike, fire, Act of God, earthquake, flood, lockout,
embargo, governmental acts or orders or restrictions, failure of suppliers, or
any other reason where failure to perform is beyond the reasonable control and
not caused by the negligence, intentional conduct or misconduct of the
nonperforming party and such party has exerted all reasonable efforts to avoid
or remedy such force majeure; provided, however, that in no event shall a party
be required to settle any labor dispute or disturbance.
12.7 ADVICE OF COUNSEL. GenVec and Asahi have each consulted counsel of
their choice regarding this Agreement, and each acknowledges and agrees that
this Agreement shall not be deemed to have been drafted by one party or another
and will be construed accordingly.
12.8 APPROVALS. Each party shall be responsible, at its expense, for
obtaining any approvals from its own government which may be required under
applicable law, and shall use its best efforts to obtain all necessary approvals
as soon as possible after the execution of this Agreement.
12.9 COMPLIANCE WITH LAWS. Each party shall furnish to the other party any
information requested or required by that party during the term of this
Agreement or any extensions hereof to enable that party to comply with the
requirements of any U.S. or foreign, state and/or government agency.
12.10 LIMITATION OF LIABILITY. NEITHER PARTY SHALL BE LIABLE TO THE OTHER
FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES ARISING OUT OF
THIS AGREEMENT, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY.
12.11 FURTHER ASSURANCES. At any time or from time to time on and after the
date of this Agreement, Asahi shall at the request of GenVec (i) deliver to
GenVec such records, data or other documents consistent with the provisions of
this Agreement, (ii) execute, and deliver or cause to be
-11-
delivered, all such consents, documents or further instruments of transfer or
license, and (iii) take or cause to be taken all such actions, as GenVec may
reasonably deem necessary or desirable in order for GenVec to obtain the full
benefits of this Agreement and the transactions contemplated hereby.
12.12 SEVERABILITY; WAIVER. In the event that any provisions of this
Agreement are determined to be invalid or unenforceable by a court of competent
jurisdiction, the remainder of the Agreement shall remain in full force and
effect without said provision. The parties shall in good faith negotiate a
substitute clause for any provision declared invalid or unenforceable, which
shall most nearly approximate the intent of the parties in entering this
Agreement. The failure of a party to enforce any provision of the Agreement
shall not be construed to be a waiver of the right of such party to thereafter
enforce that provision or any other provision or right.
12.13 ENTIRE AGREEMENT; MODIFICATION. This Agreement sets forth the entire
agreement and understanding of the parties with respect to the subject matter
hereof, and supersedes all prior discussions, agreements and writings in
relating thereto. This Agreement may not be altered, amended or modified in any
way except by a writing signed by both parties.
12.14 COUNTERPARTS. This Agreement may be executed in two counterparts,
each of which shall be deemed an original and which together shall constitute
one instrument.
-12-
IN WITNESS WHEREOF, Asahi and GenVec have executed this Agreement by their
respective duly authorized representatives.
ASAHI CHEMICAL INDUSTRY GENVEC, INC.
CO., LTD.
By: By:
-------------------------------------- ---------------------------
Katsuaki Tuzuki
Managing Director & General Manager Print Name:
-------------------
of Health Care Business Administration
Title:
------------------------
-13-
