RESEARCH AGREEMENT
(1) BIOENVISION INC.
(2) CARDIFF UNIVERSITY
THIS AGREEMENT is made the 8 day of July 1999
BETWEEN:-
(1) BIOENVISION INC., a Delaware corporation with its main office at
Xxxxxxxxx Xxxxx, 00 Xxxxxxxx Xxxxx, Xxxxxx XX0X 0XX ("Bloenvision"); and
(2) XXXXXXX XXXXXXXXXX xx X0 Xxx 000, Xxxxxxx, XX0 0XX ("CU").
Cardiff University is the public name of the University of Wales, Cardiff
WHEREAS:-
A. CU has represented to Bioenvision that CU has knowledge and expertise in
the field of cancer therapy; and
B. CU's patenting and licensing company University College Cardiff
Consultants Limited ("UC3") is the proprietor and beneficial owner of
rights and interest in the Technology (as hereinafter defined); and
C. Bioenvision is interested in the field of cancer therapy and is prepared
to receive Confidential Information from CU upon and subject to the terms
hereinafter appearing; and
D. The parties wish to provide for CU to perform a Feasibility Study and for
Bioenvision to carry out an Evaluation (as hereinafter defined) during
the term of this Agreement and for UC3 to grant a licence of equal date
herewith to Bioenvision under the Technology.
NOW in consideration of these presents and of the payment by Bioenvision to CU
of the sum of (pound) 197,981 plus VAT in the form of fees for a Feasibility
Study IT IS HEREBY AGREED as follows:
1 DEFINITIONS
1.1 In this Agreement:-
(i) "Effective Date" means the date first set out above;
(ii) "the Feasibility Study" means the tests and studies and
evaluations to be conducted by CU on Bioenvision's behalf, as more
fully described in Schedule 1 hereto;
(iii) "the Evaluation" is the evaluation of technical and commercial
potential of the Technology to he carried out by Bioenvision:
(iv) "the field means the field of "cancer therapy in humans and
animals";
(v) "Confidential Information" means all technical and commercial
information and data passed from a Discloser to a Recipient,
including all elements of the Technology, and is further defined
and qualified in Clause 7;
(vi) "the Discloser" is the party making Confidential Information
available to the other;
(vii) "the Recipient" is the party receiving Confidential Information
from the other;
(viii) "Bioenvision" means Bioenvision Inc. and includes subsidiary
companies including Eurobiotech;
(ix) "the Patents" means a patent or patents filed by UC3 as further
defined in Schedule 2 hereto and any patent that may be granted
pursuant to such application(s) and/or any patent claiming
priority from any of the foregoing including supplementary
certificates of protection. "The Patents" shall also include one
patent application to be filed immediately after execution of this
Agreement by UC3 on each of the subjects of i) 1,2-diphenylethanes
and 1,3-diphenylpropanes and derivatives and ii) benzyl tetralins
and derivatives.
(x) "Improvements" means intellectual property, data and results
generated by CU during the Feasibility Study and includes any
patent(s) filed by UC3 in respect of the same;
(xi) "Technology" means Patents, Improvements and Confidential
Information of CU.
1.2 Reference to any statute or statutory provision includes a reference to
that statute or statutory provision as from time to time amended
extended or reenacted.
1.3 Words importing the singular number shall include the plural and vice
versa, words importing the masculine shall include the feminine and
neuter and vice versa, and words importing persons shall include bodies
corporate, unincorporated associations and partnerships.
1.4 Headings to clauses and paragraphs are for ease of reference only and
shall not affect the interpretation or construction of this Agreement.
The Schedules forms part of this Agreement and shall be construed
accordingly.
2 CONDUCT OF FEASIBILITY STUDY
2.1 The Feasibility Study shall be carried out over a period of not more than
thirty six (36) months from the Effective Date by CU within its Welsh
School of Pharmacy.
2.2 CU shall use its reasonable endeavours within the scope of its knowledge
and experience to conduct the Feasibility Study in accordance with the
terms of this Agreement.
2.3 CU will provide Bioenvision with all the scientific results of the
Feasibility Study on a quarterly basis. A full written report will reach
Bioenvision no later than the end of the second week after the completion
of the Feasibility Study.
2.4 The Feasibility Study as described in Schedule 1 will be conducted in tw6
phases as described below, for a sum of (pound) 197,941 exclusive of VAT.
Payments by Bioenvision to CU will be made within thirty (30) days of
receipt of quarterly invoices, submitted at the start of each quarter.
The first payment shall be due on appointment of the first postdoctoral
researcher. Total payments for the first phase shall be (pound) 95,090
plus VAT. Total payments for the second phase shall be (pound) 102,851
plus VAT, subject to 2.5 below.
2.5 The first phase of the Feasibility Study will begin on or soon after the
Effective Date and will require the work of two postdoctoral researchers
who shall each be employed by CU for twelve (12) months. As these
researchers may not be recruited simultaneously, it is recognised that
the first phase may last up to twenty four (24) months, although CU shall
use all reasonable efforts to restrict this period to not more than
eighteen (18) months. Progress of the Feasibility Study shall be reviewed
by Bioenvision at least two months before the end of the twelve (12)
month employment contract of the first researcher to be recruited, and
Bioenvision shall have the opportunity to review their funding on
completion of the first phase (including the option to terminate the
Feasibility Study in accordance with the terms of Clause 9 below).
Bioenvision shall inform CU in writing of its decision based on such
review before the end of the twelve (12) month employment contract of the
first researcher to be recruited.
2.6 Subject to Bioenvision's approval as defined in 2.5 above, the second
phase of the Feasibility Study shall begin on completion of the twelve
(12) month employment contract of the first researcher to be recruited.
The second phase shall require the work of two postdoctoral researchers
who shall each be employed by CU for twelve (12) months.
3 CONDUCT OF THE EVALUATION
3.1 During the course of the Feasibility Study CU will answer all reasonable
questions and queries put by Bioenvision concerning the Feasibility
Study.
3.2 At the end of the Feasibility Study or on termination of this Agreement
Bioenvision will provide CU with a written report of its conclusions,
including an assessment of market potential.
4 LICENSING
4.1 CU hereby undertakes that it will assign to UC3 with full title guarantee
and free from encumbrances (to the extent that it has not already done
so) all of CU's right, title and interest in and to the Technology for
the full term thereof including all extensions thereto and renewals
thereof together with all rights, powers and benefits arising or accrued
therefrom including (without limitation) the right to xxx for damages and
other remedies in respect of any such rights.
4.2 CU acknowledges that the Technology shall be licensed to Bioenvision
under the terms of a Licence Agreement entered into by Bioenvision and
UC3 and executed on the same date as this Research Agreement ("the
Licence Agreement").
4.3 Neither CU no UC3 shall enter into discussions or negotiations with any
third party or third parties (other than Bioenvision) with a view to the
grant of a licence to any third party (whether on an exclusive or
non-exclusive basis) under the Technology for the manufacture, use and/or
sale of any products in the Field until the conclusion or termination of
this Agreement.
4.4 In this Agreement the restrictions contained in clause 4.3 shall for the
avoidance of doubt apply only in respect of the grant of any licence
under the Technology in respect of the Field (and negotiations in
connection therewith) and shall not otherwise restrict UC3 and/or CU.
4.5 For the avoidance of doubt, nothing in this Agreement shall restrict CU
from undertaking any research or development work utilising the
Technology provided that in doing so CU acts in accordance with the terms
of this Agreement and the Licence Agreement.
5 IMPROVEMENTS
5.1 Improvements resulting directly from the Feasibility Study shall be the
property of CU.
5.2 The necessity for and timing of any applications by UC3 for patents
and/or similar protective applications for Improvements shall be
discussed between the parties.
6 COMMENCEMENT
The Feasbility Study shall commence as soon as may reasonably be
practicable following the execution of this Agreement by both parties.
7 CONFIDENTIALITY
7.1 Except as provided in sub-clause 7.4 below, during the term of this
Agreement all Confidential Information (howsoever recorded or stored),
which is disclosed by the Discloser to or otherwise comes into the
possession of a Recipient shall be regarded as confidential and the
property of the Discloser and shall not be disclosed by the Recipient to
third parties or used by the Recipient for any purpose other than stated
in this Agreement.
7.1.1 Bioenvision shall be entitled to disclose Confidential Information
in confidence to potential approved sub-licensees of the
Technology (pursuant to the Licence Agreement) but only to the
extent strictly necessary to enable such persons to evaluate
whether they wish to become approved sub-licensees.
7.1.2 Bioenvision shall be entitled to disclose Confidential Information
in confidence to approved financial institutions and potential
investors in Bioenvision, to the extent necessary to enable
Bioenvision to attract investment.
7.2 The Recipient shall be responsible and liable to the Discloser for any
non-observance or breach of the terms of confidentiality herein contained
by its or their employees. Each party shall restrict disclosure of
Confidential Information to its employees having a need to know such
Confidential Information for the purposes of the performance of their
obligations and responsibilities hereunder.
7.3 The obligations governing confidentiality and/or use contained in this
Clause 7 shall continue for the term of this Agreement and for ten (10)
years thereafter.
7.4 The provisions governing confidentiality and/or non-use contained in this
clause 7 shall not apply to any part of the Confidential Information
which the Recipient is able to demonstrate:
(i) was lawfully in the Recipient's possession and known to it prior
to disclosure or receipt thereof; or
(ii) was in the public domain or the subject of public knowledge at the
time of disclosure to or receipt thereof by the Recipient; or
(iii) becomes part of the public domain or the subject of public
knowledge after the date of disclosure to or receipt thereof by
the Recipient but through no fault of the Recipent; or
(iv) becomes availiable to the Recipient form a third party not in
breach of legal obligation of confidentiality to Bioenvision or CU
or UC3 in respect thereof; or
(v) is required to be disclosed by law or by order of any court of
competent jurisdiction or by order of any regulatory authority.
7.5 CU further undertakes that any reports produced by Bioenvision under the
terms of this Agreement shall not be disclosed to third parties.
8 PUBLICATION
Bioenvision recognises that under CU policy, CU shall seek to publish
details of the Technology subsequent to UC3 filing any relevant patent
applications. Bioenvision agrees that CU shall be permitted to present at
symposia, international, national, or regional professional meetings, and
to publish in journals, theses, dissertations or otherwise of their own
choosing, details of the project and any such patents, provided, however,
that CU shall discuss any such publication or presentation with
Bioenvision and Bioenvision shall have been furnished copies of any
proposed publication or presentation at least two (2) months in advance
of the submission of such proposed publication or presentation to a
journal, editor, or other third party. Bioenvision shall have two (2)
months, after receipt of said copies, to object to such proposed
presentation or proposed publication because there is further patentable
subject matter which needs protection. In the event that Bioenvision
makes such objection, said researcher(s) shall refrain from making such
publication or presentation for a maximum of six (6) months from date of
receipt of such objection in order for UC3 to file UK and/or other patent
application(s) directed to the patentable subject matter contained in the
proposed publication or presentation.
9 TERM & TERMINATION
9.1 This Agreement shall commence on the Effective Date and shall (subject as
otherwise provided elsewhere in this Agreement) remain in force until the
completion of the Feasibility Study unless terminated by Bioenvision as
described in 2.5 above PROVIDED THAT any party ("the Terminating Party")
shall have the right to terminate this Agreement by notice in writing to
the other parties upon the happening of any of the following events:
9.1.1 if any other party ("the Defaulting Party") is guilty of any
breach non-observance or non-performance of any of its obligations
hereunder and does not remedy the same (if capable of remedy)
within thirty days of notice of such failure or breach being given
by the Terminating Party; or
9.1.2 if the Defualting Party ceases to carry on business or is unable
to pay its debts in the ordinary course of business or enters into
liquidation or analogous proceeding in any jurisdiction outside
the United Kingdom (other than for the purpose of a solvent
reconstruction or amalgamation) or has a receiver, administrator
or administrative receiver (or analogous person in any
jurisdiction outside the United Kingdom) appointed over the whole
or any part of its assets; or
9.1.3 if, before the end of the Feasibility Study Bioenvision judges
that the outcome will be of no commercial benefit to Bioenvision,
this Agreement may be terminated, subject to Bioenvision paying
all sums and for all uncancellable commitments to which CU and UC3
are obligated for the project. These uncancellable commitments
shall include but not be limited to the costs of employment of
fixed-term staff engaged specifically for the project, and no
individual employment contract shall extend for more than twelve
(12) months.
9.2 Upon termination of this Agreement for whatever reason:
9.2.1 CU and UC3 shall as soon as practicable after termination of this
Agreement either destroy or return (at Bioenvision's option) all
of Bioenvision's Confidential Information (save for reports as
defined in Clause 3.2 hereof), and all copies and extracts thereof
in its possession and shall certify in writing to Bioenvision that
all such information has been destroyed or returned as the case
may be.
9.2.2 Bioenvision shall as soon as practicable after termination of this
Agreement either destroy or return (at CU or UC3's option) all of
CU's Confidential Information (save for the report as defined in
Clause 2.3 hereof) and all copies and extracts thereof in its
possession and shall certify in writing to CU that all such
information has been destroyed or returned as the case may be.
9.3 The termination of this Agreement for any reason shall be without
prejudice to the rights and obligations of the parties thereunder
accruing up to and including the date of such termination. Clause 7 shall
continue notwithstanding termination of this Agreement.
10 FORCE MAJEURE
No party hereto shall be liable nor deemed to be liable to any other
party for failure or delay in meeting any obligation hereunder due to
strikes or lockouts (whether of their own employees or those of others)
acts of God, warfare, flood, acts of government or governmental agency or
any other cause beyond the control of the party which had a duty to
perform.
11 SEVERABILITY
If any provision of this Agreement is found by any court or
administrative body of competent jurisdiction to be invalid or
unenforceable the invalidity or unenforceability of such provision shall
not affect the other provisions of this Agreement and all provisions not
affected by such invalidity or unenforceability shall remain in full
force and effect unless severance of the invalid or unenforceable
provision would reasonably frustrate the commercial purposes of this
Agreement. The parties hereby agree to attempt to substitute for any
invalid or unenforceable provision a valid or enforceable provision which
achieves to the greatest extent possible the economic objectives of the
invalid or unenforceable provision without itself being invalid or
unenforceable.
12 ASSIGNMENT
This Agreement shall be binding upon and inure for the benefit of the
successors of the parties hereto. Save as provided herein neither party
shall have the right to assign this Agreement or any rights under it to
any third party without the prior written consent of the other party.
13 WAIVER
The waiver by any party of a breach or default of any of the provisions
of this Agreement by any other party shall not be construed as a waiver
of any succeeding breach of the same or other provisions nor shall any
delay or omission on the part of any party to exercise or avail itself of
any right power or privilege that it has or may have hereunder operate as
waiver of any breach or default by any other party.
14 NOTICE
Any notice, consent or other communication authorised or required to be
given hereunder or for the purposes hereof may be served by any party on
the other and shall be in writing and sent by personal delivery or by
recorded delivery or registered post or fax, in the case of personal
delivery or post to the addresses of the parties set out above or to such
other address as may have been notified by any party as their address for
service and in the case of fax, to the following numbers or to such other
number as may have been given by any party as its fax number for service.
CU, FAO Mr Xxxxxxx Xxxxx: 44 1222874189
Bioenvision, FAO Mr Xxxxx Xxxx 44 171 8397570
Any notice sent by post shall be deemed to have been served five (5) days
after the time that the same shall have been posted. Any notice served by
fax shall be deemed to have been served twenty-four hours after
transmission.
15 ENTIRE AGREEMENT
This Agreement including the Confidentiality Agreement constitutes the
entire and only Agreement between the parties hereto relating to the
subject matter hereof and overrides and supersedes any prior arrangements
or oral discussion between the parties.
16 NO PARTNERSHIP
Nothing in this Agreement shall create a partnership or joint venture
between the parties hereto each of whom acts as an independent principal
and not as the agent or partner of the other and no party shall have any
authority to enter into any engagements or make any representation or
warranty on behalf of or pledge the credit of or otherwise bind or oblige
the other party hereto.
17 ANNOUNCEMENTS
Save as required by law or by competent regulatory authority no party
shall make any public announcements as to the existence of this Agreement
or as to its contents without the prior written consent of the other
parties such consent not to be unreasonably withheld.
18 LAW
This Agreement constitutes the entire agreement between the parties with
respect to the subject matter contained herein and shall be governed by
the laws of England and Wales. The parties will seek to resolve disputes
between them by an Alternative Dispute Resolution ("ADR") technique
recommended by the Centre for Dispute Resolution ("CEDR"). If the parties
fail to settle the dispute within thirty (30) days following their
agreement to involve CEDR or either party refuses to submit to ADR, the
dispute shall be referred to the jurisdiction of the courts of England
and Wales.
19 MISCELLANEOUS
19.1 This Agreement may not be amended, supplemented or otherwise modified
except by an instrument in writing executed by all parties hereto with
the same formality as this Agreement is executed.
19.2 Each party hereto shall be responsible for the payment of its own costs
(and not those of the other party) in connection with the negotiation
preparation and execution hereof.
19.3 Each party hereto represents and warrants to the other that the
signatories hereto for and on behalf of that party have been fully
empowered to execute this Agreement on its behalf and that all necessary
action has been taken and all requisite approvals have been obtained to
authorise such execution.
19.4 All sums expressed in this Agreement or otherwise payable in accordance
with the terms of this Agreement are expressed exclusive of VAT which
shall (if due) be payable in addition at the applicable rate from time to
time.
IN WITNESS whereof the parties hereto have executed and delivered this Agreement
as a Deed the day and year first above written.
Signed by
for and on behalf of
Bioenvision
/s/ [ILLEGIBLE]
Signed by
for and on behalf of
Cardiff University
/s/ Xxxxxxx X Xxxxx Xxxxxxx X Xxxxx Director, Research and
Consultancy Division
SCHEDULE I
THE FEASIBILITY STUDY
SCHEDULE 2
THE PATENTS
