Exhibit 10.82
Portions of this exhibit marked [*] are requested to be treated confidentially.
LICENSE AGREEMENT
-----------------
This Agreement is made by and between Duke University ("LICENSOR"), a
nonprofit educational and research organization organized under the laws of
North Carolina, and having its principal office at Durham, North Carolina, and
AEOLUS PHARMACEUTICALS, INC. ("LICENSEE"), a corporation organized under the
laws of Delaware, and having its principal place of business in Research
Triangle Park, North Carolina.
WHEREAS, LICENSOR and LICENSEE have previously entered that certain License
Agreement, dated July 21, 1995, with respect to certain anti-oxidant compounds
(the "First Agreement"); and
WHEREAS, Article 3.02.02 of the First Agreement provides that LICENSEE
shall pay a [*] percent ([*]%) royalty on Net Sales of Licensed Products
incorporating the valid claims of any other issued patent (issued in the country
giving rise to such Net Sales) with the Patent Rights licensed thereunder
(capitalized terms in this paragraph having the meanings set forth in the First
Agreement); and
WHEREAS, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Ph.D. and other parties have invented the
Invention (as hereinafter defined), and LICENSOR owns all rights, title, and
interest in and to such Invention, including related patents, patent
applications, and unpatented technology; and
WHEREAS, the Invention, is Future Technology as defined in Article 5.01.04
of the First Agreement and LICENSEE therefore has an Option to the Invention
under certain terms and conditions specified in Article 5 of the First
Agreement.
WHEREAS, LICENSOR has the right to grant licenses to the foregoing
Invention, and wishes to have the Invention utilized in the public interest; and
WHEREAS, LICENSOR is willing to grant an exclusive license to LICENSEE to
the Invention and related patent rights and technology subject to the terms and
conditions set forth herein;
NOW, THEREFORE, in consideration of the terms and conditions set forth
herein, the parties agree as follows:
ARTICLE 1 - DEFINITIONS
-----------------------
1.01. "Invention" shall mean the substituted Porphyrin compounds invented by
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Ph.D. and ▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇, as disclosed in an Invention
Disclosure Form maintained by LICENSOR in Office of Science and Technology File
1508 and presented in Exhibit A attached hereto and made a part hereof
---------
[*] Confidential Treatment Requested; Certain Information Omitted and Filed
Separately with the SEC.
1.02. "Patent Rights" shall mean any and all United States and foreign
applications filed as of the Effective Date or thereafter with respect to the
Invention and/or Subject Technology, and any patent now issued or hereafter
issuing on any such patent applications, together with all substitutes,
divisions, continuations, extensions, continuations-in-part or reissues thereof.
As of the Effective Date of this Agreement, the Patent Rights are those patent
applications set forth in Exhibit B attached hereto and made a part hereof.
---------
1.03. "Subject Technology" shall mean unpatented or unpatentable technology with
respect to the Invention, and unpatented or unpatentable technology necessary to
practice the Patent Rights, together with any improvements, enhancements,
derivatives, changes and modifications thereto, for use in the Field (as defined
in Article 1.04), which have as of the Effective Date been conceived and/or
reduced to practice, or thereafter during the term of this Agreement are
conceived and/or reduced to practice, by LICENSOR, its employees, faculty
members, or students as evidenced by written records. Subject Technology shall
not include the Patent Rights. Without limiting any of the foregoing, the
Subject Technology as of the Effective Date of this Agreement is described in
detail in Exhibit A attached hereto and made a part hereof.
---------
1.04. "Field" or "Field of Use" shall mean all applications of the Subject
Technology and the Patent Rights.
1.05. "Licensed Product" shall mean any product which is produced or sold by
LICENSEE that utilizes the Subject Technology or is covered by one or more valid
claims within the Patent Rights, and which is intended for use in, or is used
in, the Field.
1.06. "Net Sales" shall mean the gross sales of Licensed Products sold by
LICENSEE, its Affiliates and its sublicensees pursuant to this Agreement, less
allowances to customers for spoiled, damaged, and returned goods, less quantity,
trade, and cash discounts, and less transportation costs, use and sales taxes,
and value added taxes. Net Sales shall include commissions paid to sales persons
or agents and costs of collections. Licensed Products used by LICENSEE for its
own use in the Field shall be considered to be "Net Sales" for purposes of
computing royalty obligations, except such Licensed Products used for
non-revenue producing activity such as promotional items or samples, or field,
pre-clinical or clinical trials. Net Sales shall not include sales between or
among LICENSEE, its Affiliates or sublicensees. Licensed Products shall be
considered sold when paid.
1.07. "Affiliate" or "Affiliates" shall mean any company which controls, is
controlled by or is under common control with LICENSEE. A company shall be
regarded as in control of another if it owns or controls at least twenty (20)
percent of the stock entitled to vote in election of members of the Board of
Directors of the other company.
1.08. "Effective Date" shall mean June 25, 1998.
2
ARTICLE 2 - LICENSE
-------------------
2.01. LICENSOR hereby grants to the LICENSEE and LICENSEE hereby accepts from
LICENSOR, upon the terms and conditions herein specified, an exclusive
world-wide license under the Patent Rights and Subject Technology in order to
develop, make, have made, use and sell Licensed Products, with the right to
sub-license as provided in Article 2.02 below.
2.02. LICENSEE shall have the right to grant sub-licenses to third parties, and
to extend to its Affiliates any license granted herein to LICENSEE; provided
--------
that any sub-license or extension to an Affiliate of LICENSEE shall require the
prior written consent of LICENSOR, such consent not to be unreasonably withheld.
Any such sub-licenses or extensions shall be subject to the terms of this
Agreement and shall be no less favorable to LICENSOR than is this license.
LICENSEE agrees to be responsible for the performance hereunder by its
Affiliates and sub-licensees, if any. Should LICENSEE cancel the Agreement,
LICENSEE agrees to assign all such sub-licenses directly to LICENSOR.
2.03. Within thirty (30) days following the execution of this Agreement and
thereafter during the period of this Agreement, LICENSOR agrees to provide
LICENSEE with copies of all physical embodiments of information it may have or
later obtain relative to the Subject Technology, and copies of any and all
patents or patent applications owned or controlled by the LICENSOR covering the
Invention or the use of the Invention or processes for the manufacture of the
Invention, including all Patent Office (U.S. and worldwide) actions received and
amendments filed, if any, relative thereto.
2.04. LICENSEE shall not disclose any unpublished technology, know-how, and data
included within Subject Technology or Patent Rights and furnished by LICENSOR
pursuant to Article 2.03 above to third parties during the term of this
Agreement or at any time thereafter; provided, however, that such disclosure may
be made at any time: (a) with the prior written consent of LICENSOR, (b) after
the same shall have become public through no fault of LICENSEE, (c) to
Affiliates or sublicensees of LICENSEE or other persons or entities with whom
LICENSEE proposes to enter into a business relationship, provided that such
sublicensee or third party enters into a confidentiality agreement maintaining
the confidentiality of such confidential information or (d) as required by
applicable law or regulation.
2.05. LICENSEE agrees to use its commercially reasonable efforts to diligently
pursue the development of Licensed Products, and to meet with representatives of
LICENSEE upon reasonable request to discuss such development efforts. Such
development efforts will include LICENSEE's commercially reasonable efforts to
manufacture or produce a Licensed Product utilizing the Subject Technology
and/or Patent Rights for testing, development, and sale, and also to seek
required governmental approvals of such Licensed Product. LICENSEE shall have
sole discretion as to the timing of development and commercialization of any
Licensed Product on a country by country basis, including discretion to delay
development or commercialization after beginning any such efforts.
3
ARTICLE 3 - CONSIDERATION; ROYALTIES; RECORDS; AND REPORTS
----------------------------------------------------------
3.01. Upon execution of this Agreement by LICENSOR and LICENSEE, LICENSEE shall
pay LICENSOR a licensing fee of [*] Dollars ($[*]).
3.02. For the use of valid outstanding patents contained within the Patent
Rights in all countries where such exist, LICENSEE shall pay a continuing
royalty of [*] PERCENT ([*]%) of the Net Sales of Licensed Products
incorporating the Invention, covered by a valid claim under the Subject
Technology or the Patent Rights issued in the country giving rise to such Net
Sales.
3.03. LICENSEE shall pay milestone payments to LICENSOR as follows:
3.03.01. [*] ($[*]) due within thirty (30) days of receiving U.S. Food and
Drug Administration ("FDA") marketing approval in the U.S. or comparable
regulatory approval in Europe for the first Licensed Product licensed and
developed under this Agreement; and
3.03.02 [*] ($[*]) due within thirty (30) days of the end of the first full
twelve (12) months of sales of such first Licensed Product resulting in
more than $[*] in Net Sales.
These milestone payments shall be considered advances creditable against
royalties otherwise payable to LICENSOR under this Agreement.
3.04. After the first commercial sale of a Licensed Product, LICENSEE shall
render to LICENSOR on an annual basis a written account of the Net Sales of
Licensed Products subject to royalties under Article 3.02. LICENSEE and its
Affiliates shall keep full, true, and accurate books of accounts and other
records containing all particulars which may be necessary to ascertain and
verify properly such Net Sales. Upon LICENSOR's request, LICENSEE and its
Affiliates shall permit an independent Certified Public Accountant selected by
LICENSOR (except one to whom LICENSEE has some reasonable objections) at
LICENSOR's expense to have access during ordinary business hours to such of
LICENSEE's or its Affiliates' records as maybe necessary to determine, in
respect of any quarter ending not more than two (2) years prior to the date of
such request, the correctness of any report made under this Agreement. Such
Certified Public Accountant shall be obliged to treat as confidential all
relevant matters.
3.04.01. All royalties shall be ascertained as of January 1 and July 1 of
each calendar year, and shall be due and payable within sixty (60) days
following the end of each such accounting period.
3.05. During the term of this Agreement, representatives of LICENSOR will meet
with representatives of LICENSEE at times and places mutually agreed upon to
discuss the progress and results, as well as ongoing plans, with respect to the
evaluation and development of Inventions licensed to LICENSEE; provided,
however, that should LICENSOR's personnel be required by LICENSEE to consult
with LICENSEE outside of Durham, North Carolina, LICENSEE will reimburse
reasonable travel and living expenses incident thereto.
[*] Confidential Treatment Requested; Certain Information Omitted and Filed
Separately with the SEC.
4
ARTICLE 4 - PATENTS
-------------------
4.01. LICENSEE shall have sole responsibility for the filing, prosecuting and
maintaining of the appropriate United States patent protection for patents and
patent applications included within the Patent Rights, and all of the expenses
of such protection shall be paid LICENSEE. Such filings, prosecution and
maintenance shall be made at the discretion of LICENSEE by counsel of LICENSEE's
choosing, and shall be in the name of LICENSOR and such other inventors as are
deemed appropriate. LICENSEE shall make all reasonable efforts to obtain broad
patent coverage as is reasonably and practicably obtainable, taking into account
the need for, likelihood of obtaining and enforceability of such Patent Rights.
LICENSEE shall keep LICENSOR advised as of the prosecution of such applications
by forwarding to LICENSOR copies of all official correspondence relating
thereto. LICENSOR shall have the right to advise LICENSEE as to such
prosecution, and shall have the right to make reasonable requests as to the
conduct of such prosecution and to have official correspondence reviewed by
counsel of LICENSOR's choosing. LICENSOR agrees to cooperate with LICENSEE in
the prosecution of such patent applications to insure that such applications
reflect, to the best of LICENSOR's knowledge, all items of commercial and
technical interest and importance. All final decisions with respect to the
prosecution of such application shall be made with the mutual agreement of both
parties.
4.02. LICENSEE shall designate the foreign countries, if any, in which LICENSEE
desires patent protection for patents and patent applications included within
the Patent Rights, and, except as provided below, LICENSEE shall have sole
responsibility for fling, prosecuting and maintaining such foreign patents and
patent applications. LICENSEE agrees to meet with representatives of LICENSOR to
discuss a mutually acceptable foreign patent prosecution strategy. LICENSEE
shall pay all expenses with regard to such foreign patent protection, and such
designated foreign patent applications shall be in the name of LICENSOR and such
other inventors as are deemed appropriate. Upon notice to LICENSEE, LICENSOR may
elect to seek patent protection in countries not so designated by LICENSEE, in
which case LICENSOR shall be responsible for all expenses attendant thereto. In
such instances LICENSEE shall forfeit its rights under this Agreement as to
those countries unless LICENSEE shall agree to pursue such protection (or
reimburse LICENSOR's expenses incurred in the filing for prosecution and
maintenance of such patent or patent application) within thirty (30) days after
receiving written notice thereof from LICENSOR. All final decisions with respect
to such foreign prosecutions shall be made with the mutual agreement of both
parties.
4.03. LICENSEE and LICENSOR shall each give the other prompt notice of any claim
or allegation received by it that the manufacture, use, or sale of Licensed
Products constitutes an infringement of a third party patent or patents.
LICENSEE shall have the primary right and responsibility at its own expense to
defend and control the defense of any such claim against LICENSEE, by counsel of
its choosing. The settlement of any such actions must be approved by LICENSOR,
which approval shall not be unreasonably withheld. LICENSOR agrees to cooperate
with LICENSEE in any reasonable manner deemed by LICENSEE to be necessary in
defending or prosecuting such action. LICENSEE shall reimburse LICENSOR for all
expenses reasonably incurred by LICENSOR in providing such assistance.
Notwithstanding the foregoing, LICENSOR shall, in its sole discretion, be
entitled to participate through counsel of its own choosing in any such action.
5
4.04. In the event that any Patent Rights licensed to LICENSEE are infringed by
a third party, LICENSEE shall have the primary right, but not the obligation, to
institute, prosecute and control any action or proceeding with respect to such
infringement, by counsel of its choice, including any declaratory judgment
action arising from such infringement. Any amounts recovered by LICENSEE from
third parties in enforcing such Patent Rights shall be applied first to
reimburse LICENSEE's expenses of the action, and any remaining amount shall be
deemed Net Sales for purposes of this Agreement. Notwithstanding the foregoing,
and in LICENSOR's sole discretion, LICENSOR shall be entitled to participate,
through counsel of its own choosing, in any legal action involving third party
infringement of the Subject Technology or Patent Rights; provided that control
of such action shall remain with LICENSEE.
ARTICLE 5 - OPTION UNDER FIRST AGREEMENT
----------------------------------------
5.01. LICENSOR and LICENSEE acknowledge that the Invention is Future Technology
under the First Agreement and that LICENSOR shall continue to have an option to
license technologies developed by ▇▇. ▇▇▇▇▇▇▇▇▇ under the terms of the First
Agreement, including but not limited to the option to license technologies
developed by ▇▇. ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇ in connection with ▇▇. ▇▇▇▇▇▇▇▇▇ under the
terms of the First Agreement.
ARTICLE 6 - GOVERNMENT CLEARANCE, PUBLICATION, OTHER USE, EXPORT
----------------------------------------------------------------
6.01. LICENSEE agrees to use its best efforts to have the Subject Technology
cleared for marketing in those countries in which LICENSEE intends to sell
Licensed Products by the responsible government agencies requiring such
clearance. To accomplish such clearances at the earliest possible date, LICENSEE
agrees to file, according to the usual practice of LICENSEE, any necessary data
with such government agencies. Should LICENSEE cancel this Agreement, LICENSEE
agrees to assign its full interest and title in such market clearance
application, including all data relating thereto, to LICENSOR at no cost to
LICENSOR.
6.02. LICENSEE further agrees that the right of publication of the Invention and
such Subject Technology shall reside in the inventor and other staff of
LICENSOR. LICENSOR shall use its best efforts to provide a copy of such
publications forty-five (45) days in advance of such submission for review by
LICENSEE, but such review will be in no way construed as a right to restrict
such publication; provided that LICENSEE may request, and LICENSOR shall agree
to, a delay of such proposed publication for an additional period, not to exceed
thirty (30) days, in order to protect the potential patentability of any
invention described therein; provided further that LICENSOR shall not
unreasonably withhold permission for an additional delay of thirty (30) more
days to allow time for patent filing. Subject to the foregoing, LICENSEE shall
also have the right to publish and/or co-author any publication regarding the
application of the Subject Technology.
6.03. It is agreed that, notwithstanding any provisions herein, LICENSOR is free
to use the Subject Technology and Patent Rights for its own educational,
teaching, research, and clinical purposes without restriction and without
payment of royalties or other fees.
6
6.04. This Agreement is subject to all of the United States laws and regulations
controlling the export of technical data, computer software, laboratory
prototypes, and other commodities and technology.
ARTICLE 7 - DURATION AND TERMINATION
------------------------------------
7.01. This Agreement shall become effective upon the Effective Date, and, unless
sooner terminated as hereinafter provided, shall continue until the expiration
of the last to expire issued patent included in the Patent Rights (or, if no
such patent issues, then upon the abandonment of the last patent application
included within the Patent Rights). Upon the expiration, but not the earlier
termination, of this Agreement, the license granted in Article 2.01 shall
continue thereafter on a non-exclusive basis.
7.02. LICENSEE may terminate this Agreement (with respect to a given country or
countries, or entirely) at any time by giving LICENSOR written notice at least
ninety (90) days prior to such termination, and thereupon terminate its
development efforts or the manufacture, use, or sale of Licensed Products
covered by such patent application or patent, in each case with respect to a
given country or countries or entirely, subject to the provisions of Article
7.04.
7.03. Except as provided above, if either party fail/s to fulfill any of its
obligations under this Agreement in any material respect, the non-breaching
party may terminate this Agreement, upon written notice to the breaching party,
as provided below. Such notice must contain a full description of the event or
occurrence constituting a breach of the Agreement. The party receiving such
notice will have the opportunity to cure that breach within forty-five (45) days
of receipt of notice. If the breach is not cured within that time, the
termination will be effective as of the sixtieth (60th) day after receipt of
notice. A party's ability to cure a breach will apply only to the first two
breaches properly noticed under the terms of this Agreement, regardless of the
nature of those breaches. any subsequent breach by that party will entitle the
other party to terminate this Agreement upon proper notice.
7.04. Upon the termination of this Agreement, LICENSEE may notify LICENSOR of
the amount of Licensed Products that LICENSEE (including its Affiliates) has on
hand and LICENSEE and its Affiliates shall then have a license to sell that
amount of Licensed Products, but no more, provided LICENSEE shall pay the
royalty thereon at the rate and at the times required herein.
7.05. If during the term of this Agreement, LICENSEE shall become bankrupt or
insolvent or if the business of LICENSEE shall be placed in the hands of a
receiver or trustee, whether by the voluntary act of LICENSEE or otherwise
(which proceeding, in the case of an involuntary act, is not dismissed within
sixty (60) days), this Agreement shall immediately terminate upon notice to
LICENSEE.
7
ARTICLE 8 - GOVERNING LAW
-------------------------
8.01. This Agreement shall be construed as having been entered into in the State
of North Carolina and shall be interpreted in accordance with and its
performance governed by the laws of the State of North Carolina.
ARTICLE 9 - NON-ASSIGNABILITY
-----------------------------
9.01. This Agreement shall be binding upon and inure to the benefit of the
respective successors and assigns of the parties hereto. However, except as
specifically provided herein, LICENSEE may not assign its rights in this
Agreement (except to an Affiliate in which case no consent is required) without
approval of LICENSOR, such approval not to be unreasonably withheld.
ARTICLE 10 - NOTICES
--------------------
10.01. It shall be a sufficient giving on any notice, request, report,
statement, disclosure or other communication hereunder, if the party giving the
same shall deposit a copy thereof in the Post Office in certified mail, postage
prepaid, addressed to the other party at its address hereinafter set forth or at
such other address as the other party shall have theretofore in writing
designated:
LICENSOR
Duke University Office of Science and Technology
P. O. Box 90083, Room ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
cc: University Counsel
Box 90079
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
LICENSEE
AEOLUS PHARMACEUTICALS, INC.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇/▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ Fear Building, ▇▇▇▇▇ ▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇, ▇▇ ▇▇▇▇▇
cc: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
8
10.02. The date of giving any such notice, request, report, statement,
disclosure or other communications, and the date of making any payment hereunder
required (provided such payment is received), shall be the earlier of (i) three
(3) days following the date of the U.S. postmark of such envelope if marked or
(ii) the actual date of receipt.
ARTICLE 11 - INDEMNITY, INSURANCE, REPRESENTATIONS, STATUS
----------------------------------------------------------
11.01. LICENSEE agrees to indemnify, hold harmless, and defend LICENSOR, its
trustees, officers, employees, and agents, against any and all claims, suits,
losses, damages, costs, fees, and expenses, including attorneys fees, resulting
from or arising out of the exercise of this license. LICENSEE shall not be
responsible for the negligence or intentional wrongdoing of LICENSOR, nor shall
LICENSEE be responsible for amounts paid in settlement of any claim without its
approval.
11.02. LICENSEE shall maintain in force at its sole cost and expense with
reputable insurance companies, general liability insurance and products
liability insurance coverage in an amount reasonably sufficient to protect
against liability under Article 11.01 above. LICENSOR shall have the right to
ascertain from time to time that such coverage exists, such right to be
exercised in a reasonable manner.
11.03. Nothing in this Agreement shall be deemed to be a representation or
warranty by LICENSOR of the validity of any of the patents or the accuracy,
safety, efficacy, or usefulness for any purpose of any Subject Technology or
Patent Rights. LICENSOR shall have no obligation, express or implied, to
supervise, monitor, review, or otherwise assume responsibility for the
production, manufacture, testing, marketing, or sale of any Licensed Product,
and LICENSOR shall have no liability whatsoever to LICENSEE or any third parties
for or on account of any injury, loss, or damage, of any kind or nature,
sustained by, or any damage assessed or asserted against, or any other liability
incurred by or imposed upon LICENSEE or any other person or entity, arising out
of or in connection with or resulting from:
11.03.02. the production, use, or sale of any Licensed Product;
11.03.02. the use of any Subject Technology or Patent Rights; or
11.03.03. any advertising or other promotional activities with respect to
any of the foregoing.
11.04. LICENSOR represents and warrants to LICENSEE as follows:
11.04.01. LICENSOR has the lawful right to grant the license provided in
this Agreement and that it has not granted rights or licenses in derogation
of this Agreement. LICENSOR agrees that, during the term of this Agreement,
it shall not enter into any other agreements that conflict with rights or
obligations provided hereunder, including any rights and obligations that
survive termination hereof.
11.04.02 To the best of LICENSOR's knowledge, except as previously
disclosed in writing to LICENSEE, LICENSOR owns all right, title and
interest in and to the Subject
9
Technology, Invention, and the Patent Rights, free and clear of all liens,
claims and encumbrances of any inventor, any governmental authority or
agency, or any third party.
11.05. Neither party hereto is an agent of the other party for any purpose
whatsoever.
ARTICLE 12 - USE OF A PARTY'S NAME
----------------------------------
12.02. Neither party will, without the prior written consent of the other party:
12.01.01. use in advertising or publicity any trade-name, trademark, trade
device, service ▇▇▇▇, symbol, or any abbreviation contraction, or
simulation thereof owned by the other party;
12.01.02. use the name of any employee or agent of the other party in any
publication, publicity or advertising; or
12.01.03. represent, either directly or indirectly, that any product or
service of the other party is a product or service of the representing
party or that it is made in accordance with or utilizes the information or
documents of the other party.
ARTICLE 13 - SEVERANCE
----------------------
13.01. This Agreement, including any schedules or other attachments which are
incorporated herein by reference, contain the entire agreement between the
parties as to its subject matter. This Agreement merges all prior discussions
between the parties and neither party shall be bound by conditions, definitions,
warranties, understandings, or representations concerning such subject matter
except as provided in this Agreement or as may be specified later in writing and
signed by the properly authorized representatives of the parties. This Agreement
can be modified or amended only by written agreement duly signed by persons
authorized to sign agreements on behalf of the parties.
ARTICLE 14 - WAIVER
-------------------
14.01. The failure of a party in any instance to insist upon the strict
performance of the terms of this Agreement shall not be construed to be a waiver
or relinquishment of any of the terms of this Agreement, either at the time of
the party's failure to insist upon strict performance or at any time in the
future, and such term or terms shall continue in full force and effect.
ARTICLE 15 - ENTIRE AGREEMENT
-----------------------------
15.01 This Agreement, including any schedules or other attachments which are
incorporated herein by reference, contain the entire agreement between the
parties as to its subject matter. This Agreement merges all prior discussions
between the parties and neither party shall be bound by conditions, definitions,
warranties, understandings, or representations concerning such subject matter
except as provided in this Agreement or as may be specified later in writing and
signed by the properly authorized representatives of the parties. This Agreement
can be modified or
10
amended only by written agreement duly signed by persons authorized to sign
agreements on behalf of the parties.
ARTICLE 16 - TITLES
-------------------
16.01 All titles and article headings contained in this Agreement are inserted
only as a matter of convenience and reference. They do not define, limit,
extend, or describe the scope of this Agreement or the intent of any of its
provisions.
ARTICLE 17 - CONFIDENTIALITY
----------------------------
17.01. This Agreement and the terms and conditions thereof are confidential and
may not be released or published by either party without the express written
consent of the other party; provided, however, that such disclosure may be made
at any time: (a) to Affiliates or sub-licensees of LICENSEE or potential
investors or other persons or entities with whom LICENSEE proposes to enter into
a business relationship, provided that such sublicensee or third party enters
into a confidentiality agreement maintaining the confidentiality of such
confidential information or (b) as required by applicable law or regulation.
- EXECUTION PAGE FOLLOWING -
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
dates set forth below.
LICENSOR: DUKE UNIVERSITY
--------
By:
-----------------------------
Title:
[SEAL] --------------------------
Date:
ATTEST: ---------------------------
By:
--------------------
Secretary
LICENSEE: AEOLUS PHARMACEUTICALS, INC.
--------
By:
-----------------------------
Title:
[SEAL] --------------------------
Date:
ATTEST: ---------------------------
By:
--------------------
Secretary
12
