Exhibit 10.26
CONTRIBUTION OF TECHNOLOGY AND EXCHANGE AGREEMENT
This Contribution of Technology and Exchange Agreement (this
"AGREEMENT") is made and entered into effective as of December 15, 2000, by and
among Xx. Xxxxxx X. Xxxxxx ("XXXXXX") and CancerVax Corporation, a Delaware
corporation ("CANCERVAX").
R E C I T A L S
X. Xxxxxx and CancerVax are parties to that certain License
Agreement (the "LICENSE AGREEMENT"), dated as of July 31, 2000, relating to the
license of certain technology to CancerVax by Xxxxxx.
B. CancerVax is a party to that certain Series A Preferred Stock
Purchase Agreement of even date herewith (the "PURCHASE AGREEMENT") with the
investors identified therein (the "INVESTORS").
C. In order to induce CancerVax to sell its stock pursuant to the
Purchase Agreement, and in order to induce the Investors to invest funds in
CancerVax pursuant to the Purchase Agreement, Xxxxxx has agreed to terminate the
License Agreement and Xxxxxx has agreed to contribute certain technology to
CancerVax in exchange for the consideration described below, all on the terms
and conditions set forth herein.
NOW THEREFORE, the parties hereby agree as follows:
1. CERTAIN DEFINITIONS. As used herein, the following terms will
have the meanings set forth below:
1.1 Three Cell Lines. The term "THREE CELL LINES" means
the cell lines known as X00xxx, X000xxx, X00xxx and any of their progeny or
derivatives, together with all technology, trade secrets and know-how related
thereto as well as their use in the development, preparation and
commercialization of the Vaccine or any other antigen-based vaccine for the
treatment or prevention of cancer.
1.2 Vaccine. The term "VACCINE" means the vaccine known
as the melanoma cell vaccine that incorporates the Three Cell Lines, which
Vaccine, as of the effective date of this Agreement, is being tested in clinical
trials for the therapy of malignant melanoma.
1.3 Patent Rights. The term "PATENT RIGHTS" means the
patents and patent applications listed on Exhibit A attached hereto, together
with all continuations, divisionals, continuations-in-part and patents issuing
or reissuing thereon, including reexaminations and extensions thereof, together
with all foreign counterparts thereof, as well as all income, royalties, damages
and payments now or hereafter due or payable with respect thereto, and all
causes of action (either in law or in equity) and the right to xxx,
counterclaim, and recover for past, present and future infringements of the
rights assigned or to be assigned under this Agreement and all technology, trade
secrets and know-how related thereto including know-how relating to the
development, preparation and commercialization of the Vaccine or any other
antigen-based vaccine for the treatment or prevention of cancer; excluding only
the Three Cell Lines and the Diagnostic Divisionals (as defined in Section 4).
1.4 Technology. The term "TECHNOLOGY" means the Three
Cell Lines and the Patent Rights.
1.5 Derivative. The term "DERIVATIVE" means: (i) any
derivative work of the Technology (as defined in Section 101 of the U.S.
Copyright Act) owned or controlled by Xxxxxx as of the effective date of this
Agreement; (ii) all improvements, modifications, alterations, adaptations,
enhancements and new versions of the Technology conceived or reduced to practice
by Xxxxxx as of the effective date of this Agreement (the "TECHNOLOGY
DERIVATIVES"); and (iii) all technology, inventions, products or other items
owned or controlled by Xxxxxx as of the effective date of this Agreement that,
directly or indirectly, incorporate, or are derived from, any part of the
Technology or any Technology Derivative.
1.6 Embodiment. The term "EMBODIMENT" means all materials
(including biological and chemical materials), documentation, drafts, papers,
designs, schematics, diagrams, models, prototypes, source and object code (in
any form or format and for all hardware platforms), computer-stored data,
diskettes, manuscripts and other items describing or containing all or any part
of the Technology owned or controlled by Xxxxxx as of the effective date of this
Agreement, any Derivative or any information related thereto or in which all of
any part of the Technology, any Derivative or such information is set forth,
embodied, recorded or stored.
1.7 Diagnostic Embodiment. The term "DIAGNOSTIC
EMBODIMENT" means compositions and methods for the diagnosis of disease or
detection of antibodies or antigens or for measurements related to such
diagnosis or detection.
1.8 Additional Assets. The term "ADDITIONAL ASSETS" means
any patents or patent applications, together with all continuations,
divisionals, continuations-in-parts and patents issuing or reissuing thereon,
including reexaminations and extensions thereof, together with all foreign
counterparts thereof, to the extent such patents or patent applications cover
the use, development, testing, manufacture, production, preparation or
commercialization (including, but not limited to, the sale and offer for sale)
of the Technology, Derivatives or Embodiments for the treatment or prevention of
cancer in humans through the use of products or methodologies that employ an
antigen-containing vaccine which Xxxxxx or any affiliated entities of Xxxxxx own
or control as of the effective date of this Agreement or, with respect to any
current invention of Xxxxxx that is not subject to a pending patent application
or patent as of the effective date, which Xxxxxx or any affiliated entities of
Xxxxxx own or control after the effective date of this Agreement and prior to
the first anniversary of the effective date of this Agreement.
1.9 Assigned Assets. The term "ASSIGNED ASSETS" means the
Technology, all Derivatives, all Embodiments and the Additional Assets,
collectively.
2. ASSIGNMENT. For the consideration described in Section 3
Xxxxxx hereby forever sells, assigns, transfers, releases and conveys to
CancerVax, and its successors and assigns, Xxxxxx'x entire right, title and
interest in and to each and all of the Assigned Assets.
3. CONSIDERATION.
3.1 For Three Cell Lines. In consideration of the
assignment of the Three Cell Lines to CancerVax, CancerVax shall pay to Xxxxxx,
upon execution hereof, the sum of $550,000 by wire transfer to the account
designated by Xxxxxx.
3.2 For the Remaining Assigned Assets. In consideration
of the assignment of the remaining Assigned Assets, including, without
limitation, the Patent Rights, CancerVax shall cause 3,673,469 shares of Junior
Preferred Stock held by Xxxxxx to be exchanged for and converted into 3,673,469
shares of Series A Preferred Stock of CancerVax (the "XXXXXX A SHARES") upon
execution hereof.
4. DIAGNOSTIC DIVISIONALS. The parties acknowledge that Xxxxxx is
in the process of removing the claims to Diagnostic Embodiments in Japanese
Published Patent Application No. 90/500470 and Canadian Patent Application No.
2,072,620 and will be filing divisionals for such diagnostic claims (the
"DIAGNOSTIC DIVISIONALS") in the name of Cancer Diagnostic Labs, Inc. ("CDL") as
assignee. CancerVax shall cooperate with Xxxxxx and CDL in creating and filing
the Diagnostic Divisionals. CancerVax will not file, or otherwise prosecute or
cause to be prosecuted, any new patent claims directed to Diagnostic Embodiments
for any of the Patent Rights or Additional Assets.
5. TERMINATION OF LICENSE AGREEMENT. The License Agreement is
hereby terminated effective upon execution hereof and shall be of no further
force or effect.
6. RESEARCH LICENSE. Xxxxxx retains a nonexclusive, royalty-free
license, without the right to sublicense, to use the Assigned Assets for
research, clinical and other noncommercial purposes only, including the right to
produce Vaccine for such purposes, solely at a nonprofit U.S. research or
educational institution with which Xxxxxx has his principal affiliation and
which institution has specifically agreed to the provisions of this Section 6
("Employing Institution"). The foregoing license shall be subject to the same
terms and conditions as apply to the Xxxx Xxxxx Cancer Institute ("JWCI") under
Section 2 (first and second paragraphs, except the right to purchase vaccine for
non-FDA approved indications) of the Cross-License Agreement between CancerVax
and JWCI dated as of July 24, 1998 (the "CROSS-LICENSE AGREEMENT"). For purposes
of this Section 6, Xxxxxx shall be deemed to have only one principal affiliation
with a nonprofit U.S. research or educational institution at a given time. If,
as a result of any use by Xxxxxx of the Assigned Assets that are then
protectable intellectual property, Xxxxxx conceives, makes or reduces to
practice any invention, or generates or creates any clinical data or other
information, that relates to immunotherapy or immunoregulation through the use
of vaccines, antibodies, peptides, nucleotides or any other biological materials
to treat or prevent cancer ("Intellectual Property"), Xxxxxx shall, and the
Employing Institution shall agree that Xxxxxx shall, promptly disclose to
CancerVax in writing the Intellectual Property as it arises in the future. If
Xxxxxx desires to use the license granted by the first sentence of this Section
6 at an Employing Institution, Xxxxxx shall, at the time he affiliates with an
Employing Institution (after his current, principal affiliation with JWCI), use
reasonable, good faith efforts to have an exclusive license to the future
Intellectual Property granted to CancerVax by the Employing Institution (and
Xxxxxx, if he has retained any rights to the Intellectual Property) upon
substantially the same terms as set forth in Sections 1, 3, 4.4 (i.e., a single
royalty to be shared, as
appropriate, between Xxxxxx and Xxxxxx'x Employing Institution), 7, 8, 9, 10 and
11 of the Cross-License Agreement. If, as a result of such efforts by Xxxxxx,
CancerVax and the Employing Institution (including Xxxxxx, if appropriate) have
not entered into an agreement granting CancerVax a license to the future
Intellectual Property and if Xxxxxx desires to use the license granted by the
first sentence of this Section 6 at an Employing Institution, Xxxxxx shall cause
the Employing Institution to grant, and the Employing Institution shall agree to
grant, to CancerVax upon reasonable terms and conditions a right of first
refusal to the future Intellectual Property.
7. DIAGNOSTIC LICENSES.
7.1 Amendment to CDL Agreement. Concurrently herewith,
CancerVax shall, and Xxxxxx shall cause CDL to, enter into an amendment to the
Agreement dated as of July 31, 2000, between CancerVax and CDL, to include the
Diagnostic Divisionals in the definition of "CDL's Patent Rights" in such
Agreement.
7.2 Fetal Antigen License Agreement. Concurrently
herewith, Xxxxxx and CancerVax shall enter into the Fetal Antigen License
Agreement attached hereto as Exhibit B, pursuant to which CancerVax shall be
granted a nonexclusive license to use the patent and related rights under the
fetal antigen patent application (USSN 08/483,128), on a royalty-free, paid up
basis to the extent necessary or appropriate for the use, development, testing,
manufacture, production, preparation or commercialization (including, but not
limited to, the sale and offer for sale) of any of the Assigned Assets,
including, without limitation, the Vaccine and the Three Cell Lines.
8. NON-RECOGNITION INTENT. The parties acknowledge and agree that
they intend to treat (a) the conversion of 3,673,469 vested shares of Xxxxxx'x
Xxxxxx Preferred Stock into an equivalent number of shares of Series A Preferred
Stock as a tax-free recapitalization pursuant to Section 368(a)(1)(E) of the
Internal Revenue Code of 1986, as amended (the "CODE"), to the extent that such
shares of Series A Preferred Stock equal the value of the Junior Preferred Stock
being exchanged and (b) the transfer of the Assigned Assets to CancerVax by
Xxxxxx (other than the Three Cell Lines) to the extent that the value of the
Series A Preferred Stock received by Xxxxxx exceeds the value of his surrendered
Junior Preferred Stock, together with the transfer of cash by the Investors to
CancerVax in exchange for Series A Preferred Stock pursuant to the Purchase
Agreement, as part of a tax-free exchange pursuant to Section 351 of the Code
(the "351 Exchange"). The parties acknowledge and agree that, absent a final
determination of the Internal Revenue Service as defined in Section 1313 of the
Code to the contrary, or the receipt by the parties of a legal opinion that any
position described in this Section 8 is without substantial authority: (i) the
parties will treat the 351 Exchange as such for all tax purposes (and will not
take a position contrary to such treatment on any tax return), and (ii) the
parties will comply with the reporting requirements set forth in Treasury
Regulations Section 1.351-3(a) with respect to the 351 Exchange. The parties
acknowledge and agree that the Unvested Option Price (as defined in the
Stockholders Agreement of even date herewith among CancerVax, Xxxxxx and the
other parties identified therein) is significantly below the current fair market
value for vested shares of CancerVax's Junior Preferred Stock and is not
intended to be indicative of the fair market value
or cost of such vested Junior Preferred Stock for any purpose, including,
without limitation, the valuation of the vested shares of Junior Preferred Stock
which, together with the Assigned Assets (other than the Three Cell Lines), is
being exchanged by Xxxxxx hereunder for Series A Preferred Stock of equal value.
The parties acknowledge that, together, Xxxxxx and the Investors are part of a
single control group of transferors that will control CancerVax immediately
after the closing of the transactions contemplated by the Purchase Agreement for
purposes of IRC Section 351 and the regulations thereunder. Neither CancerVax
nor Xxxxxx shall take any tax return position that is contrary to the foregoing.
Further, Xxxxxx agrees that as an IRC Section 351 transferor of property in
exchange for Series A Preferred Stock, Xxxxxx will comply with the income tax
return reporting requirements set forth under IRC Regulation Section 1-351-3(a)
with respect to such transfers. Xxxxxx acknowledges and agrees that neither
CancerVax, the Investors nor their respective counsel have acted in any way as a
tax advisor or provided tax advice to Xxxxxx and that Xxxxxx is solely
responsible for, and CancerVax, the Investors and their respective counsel will
have no obligation with respect to, any tax consequences or obligations to
Xxxxxx and any of his affiliates with respect to the foregoing and the
transactions and tax positions described therein. The Investors are express
third party beneficiaries of the provisions of this Section 8.
9. SECURITIES COMPLIANCE. To the extent that the value of the
Xxxxxx A Shares is equal to the value of the Junior Preferred Shares being
exchanged by Xxxxxx pursuant to Section 3.2, the parties intend for such
exchange to be exempt from the federal registration requirements under Section
3(a)(9) of the Securities Act of 1933, as amended, and the California
qualification requirements under California Corporations Code Section
25102.1(c). To the extent that the value of the Xxxxxx A Shares exceeds the
value of the Junior Preferred Shares being exchanged by Xxxxxx pursuant to
Section 3.2, the Xxxxxx A Shares representing such excess value shall be deemed
to be newly issued (as opposed to exchanged) shares. Xxxxxx shall, concurrently
herewith, execute and deliver the Investment Representation Letter attached as
Exhibit C.
10. DELIVERY. Xxxxxx shall deliver to CancerVax, at a designated
location and time, the possession and control of those Embodiments of the
Assigned Assets in Xxxxxx'x possession and control as are reasonably requested
in writing from time to time by CancerVax.
11. UNCOMMERCIALIZED TECHNOLOGY. At any time more than two (2)
years after the date of this Agreement, Xxxxxx may request in writing that
CancerVax evaluate whether it intends to pursue, license, or commercialize in
any field a particular technology that was transferred to CancerVax at or prior
to the date hereof by Xxxxxx or any entity controlled by Xxxxxx. After such
request, CancerVax may have one (1) year to make the evaluation. By the end of
the one (1) year period, if CancerVax's Board of Directors (with Xxxxxx
abstaining from any such vote) determines, in its good faith discretion, that
CancerVax will not pursue, license, or commercialize in any field within the
next two (2) years such particular technology identified by Xxxxxx in his
request, CancerVax will advise Xxxxxx of such determination in a writing that
specifically refers to this Section 11 and will, provided the CancerVax Board of
Directors (with the advice of counsel) reasonably believes that a decision to
proceed would not involve any breach of the Directors' fiduciary duties to
CancerVax at such time, negotiate in good faith with Xxxxxx to reach a mutually
acceptable, commercially reasonable agreement for Xxxxxx to license such
technology from CancerVax at a value not to exceed the amount spent by
CancerVax on the development of such technology, which agreement may be assigned
to an entity controlled by Xxxxxx.
12. REPRESENTATIONS AND WARRANTIES.
12.1 By Xxxxxx. Xxxxxx represents and warrants to
CancerVax that (i) he has the full right and authority to enter into this
Agreement and to assign his entire interest in the Assigned Assets, (ii) except
for the License Agreement which is being terminated hereby, and except as
described on Schedule 12.1 attached hereto, Xxxxxx has not previously granted or
assigned any rights with respect to the Assigned Assets in whole or in part,
(iii) to Xxxxxx'x knowledge, there are no undisclosed claims of third parties
pending against him that would call into question his right to transfer his
interest in the Assigned Assets, (iv) except for the rights of the University of
California, the federal government and JWCI described on Schedule 12.1, as to
which there has been no dispute, none of the Assigned Assets are subject to any
dispute or claim of any third party (including, without limitation, any claim of
ownership or inventorship or any claim of any prior employer, employee,
consultant or third party client of Xxxxxx or any school, university or other
institution which Xxxxxx attended or with which Xxxxxx was affiliated or
employed), or any other rights that might interfere with CancerVax's use, or
exercise of ownership of, any Assigned Assets, (v) to Xxxxxx'x knowledge, there
are no intellectual property rights, patents or pending patent applications of
other parties that claim or otherwise can claim the composition or use of the
Vaccine or that would be infringed by the making, use, sale, offer to sell or
importing of the Vaccine, (vi) except as set forth on Schedule 12.1, there have
been no other transfers, assignments, licenses or other rights granted to or by
Xxxxxx with respect to the Assigned Assets, and (vii) all obligations to be
performed by Xxxxxx with respect to the Assigned Assets under the agreements set
forth on Schedule 12.1 have been paid or performed by Xxxxxx.
12.2 By CancerVax. CancerVax hereby represents and
warrants to Xxxxxx that (i) it has the full right and authority to enter into
this Agreement and (ii) to its knowledge, there are no undisclosed claims of any
third parties pending against CancerVax that would call into question its right
to enter into and perform its obligations under this Agreement.
12.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS
SECTION 12, NEITHER PARTY HERETO MAKES ANY REPRESENTATIONS, WARRANTIES OR
CONDITIONS (EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE) WITH RESPECT TO THE
SUBJECT MATTER HEREOF, INCLUDING WITHOUT LIMITATION, THE ASSIGNED ASSETS, AND
XXXXXX SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND DISCLAIMS ALL
WARRANTIES AND CONDITIONS OF THE VALIDITY OF THE PATENT RIGHTS OR
NONINFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
13. FURTHER ASSURANCES. The parties agree to execute such further
documents and instruments and to take such further actions as may be reasonably
necessary to carry out the purposes and intent of this Agreement. Xxxxxx further
agrees, promptly upon request of CancerVax, or any of its successors or assigns,
to execute and deliver, without further compensation of any kind, any power of
attorney, assignment, application for copyright, patent
or other intellectual property right protection, or any other papers which may
be necessary or desirable to fully secure or evidence in CancerVax, its
successors and assigns, all right, title and interest in and to each of the
Assigned Assets, and to cooperate and assist in the prosecution of any
opposition proceedings involving said rights and any adjudication of the same.
Xxxxxx shall assist as reasonably requested by CancerVax in connection with the
prosecution, maintenance and defense of any of the Assigned Assets and cooperate
with CancerVax in connection with any dispute (whether or not litigated) with
respect to any alleged infringement or misappropriation of the Assigned Assets
by any third party. Further, Xxxxxx agrees never to assert any claims, rights or
moral rights in or to any of the Assigned Assets.
14. USE OF NAMES. Except as required by law or in the normal
course of business identification and description, no party shall issue any
press release or other public statements in connection with this Agreement
intended for use in the public media in a manner suggesting any endorsement by
the other parties, without the prior written approval of such other parties,
which approval shall not be unreasonably withheld or delayed.
15. CONFIDENTIALITY.
15.1 Confidential Information. Except as expressly
provided herein, each party shall maintain in confidence, and shall not use for
any purpose or disclose to any third party, information that does not constitute
the Assigned Assets and that is disclosed under this Agreement by the other
party in writing and marked "CONFIDENTIAL" or orally and confirmed in writing as
confidential within a reasonable time following such disclosure (collectively,
"CONFIDENTIAL INFORMATION"). Notwithstanding the foregoing, Confidential
Information shall not include any information that, in each case as demonstrated
by contemporaneous written documentation: (i) was already known to the receiving
party, other than under an obligation of confidentiality, at the time of
disclosure hereunder; (ii) was generally available to the public or otherwise
part of the public domain at the time of its disclosure to the receiving party;
(iii) became generally available to the public or otherwise part of the public
domain after its disclosure, other than through any act or omission of the
receiving party; (iv) was subsequently lawfully disclosed to the receiving party
by a person, other than a party hereto, without an obligation of
confidentiality; or (v) was independently developed by the receiving party
without reference to any information or materials disclosed by the disclosing
party.
15.2 Permitted Usage. Notwithstanding the provisions of
Section 15.1 above, each party may use or disclose another party's Confidential
Information to the extent such use and disclosure is reasonably necessary in
filing or prosecuting patent applications, prosecuting or defending litigation,
complying with applicable governmental regulations, submitting information to
tax or other governmental authorities conducting clinical trials or exercising
its rights hereunder; provided that if a party is legally required to make any
public disclosures of another party's Confidential Information, to the extent it
may legally do so, it will give reasonable advance notice to the other party of
such disclosure and will use its reasonable efforts to secure confidential
treatment of such Confidential Information prior to its disclosure (whether
through protective orders or otherwise); provided, further, that CancerVax may
disclose Confidential Information pertaining to the Assigned Assets to the
extent required in connection with the development and commercialization of
Assigned Assets.
15.3 Assigned Assets. Xxxxxx shall maintain in confidence,
and shall not disclose to any third party, any form of the Assigned Assets,
except information pertaining to the Assigned Assets that (i) is currently in
the public domain, (ii) comes into the public domain through no fault of Xxxxxx
or any of his affiliated entities or (iii) to the extent necessary, is disclosed
in connection with exercising his rights under Section 6. Xxxxxx shall not use
for any purpose the Assigned Assets except as permitted by Section 6 or in
connection with his activities contemplated and permitted under other agreements
to which CancerVax is a party.
16. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered will be deemed an
original, and all of which together shall constitute one and the same agreement.
17. GOVERNING LAW. This Agreement will be governed by and
construed in accordance with the laws of the State of California, without giving
effect to that body of laws pertaining to conflict of laws.
18. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement and understanding of the parties with respect to the subject matter of
this Agreement, and supersedes all prior understandings and agreements, whether
oral or written, between or among the parties hereto with respect to the
specific subject matter hereof.
19. SUCCESSORS AND ASSIGNS; ASSIGNMENT. Except as otherwise
provided in this Agreement, this Agreement, and the rights and obligations of
the parties hereunder, will be binding upon and inure to the benefit of their
respective successors, assigns, heirs, executors, administrators and legal
representatives. CancerVax may assign any of its rights and obligations under
this Agreement. No other party to this Agreement may assign, whether voluntarily
or by operation of law, any of its rights and obligations under this Agreement,
except with the prior written consent of CancerVax.
20. NOTICES. Any and all notices required or permitted to be given
to a party pursuant to the provisions of this Agreement will be in writing and
will be effective and deemed to provide such party sufficient notice under this
Agreement on the earliest of the following: (i) at the time of personal
delivery, if delivery is in person; (ii) one (1) business day after deposit with
an express overnight courier for United States deliveries, or two (2) business
days after such deposit for deliveries outside of the United States, with proof
of delivery from the courier requested; or (iii) three (3) business days after
deposit in the United States mail by certified mail (return receipt requested)
for United States deliveries.
All notices for delivery outside the United States will be
sent by express courier. All notices not delivered personally will be sent with
postage and/or other charges prepaid and properly addressed to the party to be
notified at the address set forth below the signature lines of this Agreement,
or at such other address as such other party may designate by one of the
indicated means of notice herein to the other parties hereto.
21. TITLES AND HEADINGS. The titles, captions and headings of this
Agreement are included for ease of reference only and will be disregarded in
interpreting or construing this
Agreement. Unless otherwise specifically stated, all references herein to
"SECTIONS" and "EXHIBITS" will mean "SECTIONS" and "EXHIBITS" to this Agreement.
22. SEVERABILITY. If any provision of this Agreement is determined
by any court or arbitrator of competent jurisdiction to be invalid, illegal or
unenforceable in any respect, such provision will be enforced to the maximum
extent possible given the intent of the parties hereto. If such clause or
provision cannot be so enforced, such provision shall be stricken from this
Agreement and the remainder of this Agreement shall be enforced as if such
invalid, illegal or unenforceable clause or provision had (to the extent not
enforceable) never been contained in this Agreement. Notwithstanding the
forgoing, if the value of this Agreement based upon the substantial benefit of
the bargain for any party is materially impaired, which determination as made by
the presiding court or arbitrator of competent jurisdiction shall be binding,
then both parties agree to substitute such provision(s) through good faith
negotiations.
23. AMENDMENT AND WAIVERS. This Agreement may be amended only by a
written agreement executed by each of the parties hereto. No amendment of or
waiver of, or modification of any obligation under this Agreement will be
enforceable unless set forth in a writing signed by the party against which
enforcement is sought. Any amendment effected in accordance with this section
will be binding upon the parties hereto and each of their respective successors
and assigns. No delay or failure to require performance of any provision of this
Agreement shall constitute a waiver of that provision as to that or any other
instance. No waiver granted under this Agreement as to any one provision herein
shall constitute a subsequent waiver of such provision or of any other provision
herein, nor shall it constitute the waiver of any performance other than the
actual performance specifically waived.
24. FACSIMILE SIGNATURES. This Agreement may be executed and
delivered by facsimile and upon such delivery the facsimile signature will be
deemed to have the same effect as if the original signature had been delivered
to the other party.
IN WITNESS WHEREOF, the undersigned have executed this Agreement
effective as of the date and year first above written.
CancerVax Corporation,
a Delaware corporation
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: Chief Executive Officer
Address: 0000 Xxxxx Xxx Xxxxx #000-000
Xxxxxxxx, XX 00000
Fax No.: (000) 000-0000
/s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxx, M.D.
Address 0000 Xxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxxxxxx, XX 00000
Fax No.: (000) 000-0000
[SIGNATURE PAGE CONTRIBUTION OF TECHNOLOGY AND EXCHANGE
AGREEMENT]
EXHIBIT A
PATENT RIGHTS
1. ASSIGNED PATENT RIGHTS
TUMOR ASSOCIATED ANTIGEN FETAL ANTIGEN
------------------------ -------------
U.S. Patent 5,882,654 USSN 09/519,920
U.S. Patent 5,840,317
U.S. Patent 5,993,828
USSN 09/369,668
European Patent 0498851
Austrian Patent E132629
Belgian Patent 0498851
Swiss Patent 0498851
German Patent 69024659.5
Denmark Patent 0498851
Spanish Patent 2084715
French Patent 2084715
UK Patent 2084715
Italian Patent 2084715
Luxembourg Patent 2084715
Netherland Patent 2084715
Swedish Patent 2084715
Australian Patent 661816
Japanese Published Patent Application No. 90/500470
Canadian Patent Application 2,072,620
EXHIBIT B
FETAL ANTIGEN LICENSE AGREEMENT
EXHIBIT C
INVESTMENT REPRESENTATION LETTER
