1
CONFIDENTIAL TREATMENT EXHIBIT 10.5
LICENSE AGREEMENT
This Agreement is effective March 15, 1995 ("EFFECTIVE DATE") by and
between Lynxvale Ltd., having an address at the Old Schools, Cambridge CB2, ITS,
England ("LYNXVALE"). and LeukoSite, Inc., a Corporation having offices at 000
Xxxxx Xxxxxx, Xxxxxxxxx, XX 00000, XXX ("LEUKOSITE").
WHEREAS, LEUKOSITE desires to obtain exclusive rights and licenses to
intellectual property relating to monoclonal antibodies developed in the
laboratory of Xx. Xxxxxx Xxxxxxxx at the University of Cambridge and to which
LYNXVALE has acquired rights; and
WHEREAS, LYNXVALE is willing to grant the exclusive rights and licenses
desired by LEUKOSITE.
NOW THEREFORE in consideration of the mutual promises and other good and
valuable consideration, the panties agree as follows:
SECTION 1 - DEFINITIONS.
The terms used in this Agreement have the following meaning:
1.1 The term "AFFILIATE" as applied to LEUKOSITE shall mean any company or
other legal entity other than LEUKOSITE in whatever country organized,
controlling, or controlled by LEUKOSITE. The term "control" means possession,
direct and indirect of the power to direct or cause the direction of the
management and policies whether through the ownership of voting securities, by
contract or otherwise.
1.2 The term "ANTIBODY(IES)" shall mean any and all antibodies and
fragments or portions thereof, including but not limited to, monoclonal
antibodies, chimeric antibodies, recombinant antibodies, humanized antibodies,
single chain antibodies and fragments and portions thereof.
1.3 The term "CELL LINE" shall mean any cell line which produces an
ANTIBODY
1.4 "INFORMATION" shall mean any data, formulas, process information or
other information applicable to LICENSED SUBJECT MATTER known to LYNXVALE
through an lNVESTIGATOR on the EFFECTIVE DATE and in and to which LYNXVALE
and/or INVESTIGATOR has a transferable right.
1.5 The term "INVESTIGATOR" means PRINCIPAL INVESTIGATOR, any other member
of the University of Cambridge professional staff, graduate
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student, undergraduate student, or employee of the University of Cambridge who
worked under the primary direction or supervision of PRINCIPAL INVESTIGATOR.
1.6 The term "LICENSED SUBJECT MATTER" shall mean the following ANTIBODY
which is owned by LYNXVALE and/or to which LYNXVALE has a transferable right:
Anti-CD18, and all other ANTIBODIES to which LEUKOSITE has exercised its option
under Section 2.1(b) and the CELL LINES which produce such ANTIBODIES.
1.7 The term "MATERIAL" shall mean any material or substance (other than
LICENSED SUBJECT MATTER) which is discovered, produced or derived by an
INVESTIGATOR and related to LICENSED SUBJECT MATTER and is in possession of
LYNXVALE through an INVESTIGATOR on the EFFECTIVE DATE and in and to which
LYNXVALE and/or an INVESTIGATOR has a transferable right.
1.8 "NET SALES PRICE" means the total received by LEUKOSITE or its
AFFILIATES, or its SUBLICENSEES from sale of PRODUCT, less transportation
charges and insurance, sales taxes, use taxes, excise taxes, value added taxes,
customs duties or other imposts, normal and customary quantity and cash
discounts, rebates granted, disallowed reimbursements, and allowances and credit
on account of rejection or return of PRODUCT
PRODUCT shall be considered "sold" when billed out or invoiced.
1.9 The term "PATENT RIGHT(S)" shall mean any patent application and
patent anywhere in the world including, but not limited to, those set forth in
Appendix A and any division, continuation, or continuation-in-part thereof and
any reissue or extension thereof, insofar as it contains one or more claims to
LICENSED SUBJECT MATTER, INFORMATION, or MATERIALS.
1.10 The term "PRINCIPAL INVESTIGATOR" shall mean Xxxxxx Xxxxxxxx, Ph.D.
1.11 The term "PRODUCT" shall mean any article, composition, apparatus,
substance, chemical, material, method, process or service which incorporates or
utilizes LICENSED SUBJECT MATTER, MATERIALS and/or INFORMATION, or the
manufacture, import, sale or use of which is covered by PATENT RIGHTS.
1.12 The term "SUBLICENSEE" shall mean any now AFFILIATE third party
licensed by LEUKOSITE to make, have made, import, use or sell any PRODUCT under
PATENT RIGHTS.
1.13 The term "VALID CLAIM" shall mean a claim of an issued patent
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which has not lapsed or become abandoned or been declared invalid or
unenforceable by a court of competent jurisdiction or an administrative agency
from which no appeal can be or is taken.
1.14 The use herein of the plural shall include the singular, and the use
of the masculine shall include the feminine.
SECTION 2- GRANTS.
2.1(a) LYNXVALE hereby grants to LEUKOSITE and LEUKOSITE hereby accepts
from LYNXVALE a world-wide and exclusive royalty bearing right and license under
PATENT RIGHTS, INFORMATION, MATERIALS and LICENSED SUBJECT MATTER to make, have
made, use and sell or have sold on its behalf PRODUCT, including the right to
sub license third parties. LEUKOSITE shall have the right to extend such license
to its AFFILIATES, who shall be bound by the same terms and obligations as set
forth herein.
(b) LEUKOSITE shall have an exclusive option to obtain a worldwide
sole and exclusive right and license under the terms and conditions set forth
herein with respect to the following ANTIBODIES and the CELL LINES which produce
such ANTIBODIES which are owned by LYNXVALE and/or to which LYNXVALE has a
transferable right: Anti-CD2, -CD4 (excluding YNB46. 1 and excluding NSM 47.2 in
the event the Welcome Foundation Ltd. exercises its option under an agreement
with LYNXVALE et al. dated 31 December, 1994), -XX0, -XX0, -XX0, -XX00(x),
-XX00, XX00, -XX00, -XX00X, -CDw52 (more specifically YTH 361.10), -XX00, -XXX0,
-XX00, -Class I, Class II and unique unclustered ANTIBODIES and the CELL LINES
which produce such ANTIBODIES. LEUKOSITE may exercise this option at any time
during the five (5) year period following the EFFECTIVE DATE, provided that if
during said five (5) year period LYNXVALE notifies LEUKOSITE that it has
received a bona fide offer to license any of the foregoing ANTIBODIES or CELL
LINES. LEUKOSITE shall have ninety (90) days from such notification to exercise
its option hereunder. LYNXVALE shall, upon request, provide LEUKOSITE with
documentary evidence of such offer. In the event LEUKOSITE fails to exercise its
option within the aforesaid ninety (90) days, LYNXVALE may license the
specifically requested ANTIBODIES and/or CELL LINES to the third party
requesting such license on terms which are not more favorable to the third party
than as set forth hereunder.
(c) LYNXVALE shall, as soon as practical after the EFFECTIVE DATE,
provide to LEUKOSITE any and all CELL LINES which are LICENSED SUBJECT MATTER
and all INFORMATION applicable to LICENSED SUBJECT MATTER.
2.2 LEUKOSITE agrees to forward to LYNXVALE a copy of any and all
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fully executed sublicense agreements.
2.3 The above licenses to sell any PRODUCT includes the right of
LEUKOSITE, its AFFILIATES, and SUBLICENSEES to grant to the purchaser thereof
the right to use and/or resell such purchased PRODUCT without payment of any
other royalty hereunder.
2.4 (a) Taking into account the complexity, and stage of development of
PRODUCTS and the science related thereto, LEUKOSITE shall use reasonable efforts
under the circumstances to research, develop and then commercialize a PRODUCT
which is LICENSED SUBJECT MATTER and shall keep LYNXVALE reasonably informed of
its efforts in this respect. The efforts of a SUBLICENSEE and/or an AFFILIATE
shall be considered as efforts of LEUKOSITE.
(b) In the event that LYNXVALE reasonably believes that LEUKOSITE is not
making reasonable efforts under the circumstances to research, develop and then
commercialize PRODUCTS pursuant to Paragraph 2.4(a) then LYNXVALE shall provide
written notice to LEUKOSITE which specifies LYNXVALE's basis for such belief and
what additional efforts LYNXVALE believes should be made by LEUKOSITE. Upon
receipt of such written notice, LYNXVALE and LEUKOSITE shall enter into good
faith negotiations in order to reach mutual agreement as to what efforts by
LEUKOSITE shall satisfy the requirements of this Paragraph 2.4, and if such
mutual agreement is not reached within ninety (90) days after receipt of such
written notice, then the parties agree to submit to arbitration pursuant to
Paragraph 10.2 10 determine the efforts which should be exerted by LEUKOSITE. In
such arbitration, in determining the efforts which should be exerted, the
arbitrator shall consider efforts exerted by LEUKOSITE up to the point of
arbitration, the current stage of technical development of the PRODUCT, the
resources and manpower available to LEUKOSITE; the potential market; and
regulatory and technical problems. Thereafter, LEUKOSITE shall exert the efforts
determined by the panties or in such arbitration.
(c) If LEUKOSITE fails to exert the efforts determined by the panties or
in such arbitration with respect to a PRODUCT, LYNXVALE's sole and exclusive
remedy for LEUKOSITE's failure to meet such efforts is for the licenses and
rights granted hereunder for the PRODUCT to be converted from an exclusive right
and license to a non-exclusive right and license at a royalty rate equal to
* the royalty rate due for an exclusive license hereunder.
2.5 Subject to Section 2.4, LEUKOSITE shall have sole discretion for
making all decisions relating to the commercialization and marketing of PRODUCT-
* Confidential treatment requested: material has been omitted and filed
separately with the Commission.
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SECTION 3 - PATENTS
3.1 After the EFFECTIVE DATE of this Agreement, LEUKOSITE shall bear the
cost and expense for the filing. prosecution and maintenance of any PATENT
RIGHTS under which LEUKOSITE retains an exclusive license hereunder.
3.2 With respect to any PATENT RIGHTS licensed to LEUKOSITE, each patent
application, office action, response to office action, request for terminal
disclaimer, and request for reissue or reexamination of any patent issuing from
such application shall be provided to LEUKOSITE sufficiently prior to the filing
of such application, response or request to allow for review and comment by
LEUKOSITE.
SECTION 4. ROYALTIES.
4.1(a) For each PRODUCT sold by LEUKOSITE or its AFFILIATES or
SUBLICENSEES LEUKOSITE shall pay LYNXVALE one of the following royalties:
(1) A royalty of * of the NET SALES PRICE of PRODUCTS (other than
PRODUCTS which are diagnostic products or service) so long as in
each case the PRODUCT, where sold shall infringe a VALID CLAIM of
any PATENT RIGHT which is licensed exclusively to LEUKOSITE in such
country, or
(2) A royalty of * of the NET SALES PRICE of PRODUCTS which are
diagnostic products or services so long as in each case the PRODUCT.
where sold shall. infringe a VALID CLAIM of any PATENT RIGHT which
is licensed exclusively to LEUKOSITE in such country; or
(3) * of all royalties and lump sum payments creditable against
royalties received from a SUBLICENSEE based on the sale in a country
by the SUBLlCENSEE of a PRODUCT which infringes a VALID CLAIM of a
PATENT RIGHT exclusively licensed to LEUKOSITE in such country,
(b) In the event that a PRODUCT includes both component(s) covered by a
VALID CLAIM of a PATENT RIGHT ("Patented Component(s)") and active component(s)
not covered by a VALID CLAIM of a PATENT RIGHT ("Unpatented Component(s)) (such
PRODUCT being a "Combined Product"), then NET SALES PRICE shall be the amount
which is normally received by LEUKOSITE or its
*Confidential treatment requested: material has been omitted and filed
separately with the Commission.
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AFFILIATES from a sale of the Patented Component(s) in an arm's-length
transaction with an unaffiliated third party. If the Patented Component(s) are
not sold separately, then NET SALES PRICE upon which a royalty is paid shall be
the NET SALES PRICE of the Combined Product multiplied by a fraction, the
numerator of which is the cost of producing the Patented Components and the
denominator of which is the cost for producing the Combined Product.
4.2 In the event that royalties are to be paid by LEUKOSITE to a party who
is not an AFFILIATE of LEUKOSITE for PRODUCT for which royalties are also due to
LYNXVALE pursuant to Paragraph 4.1 ("Other Royalties"), then the royalties to be
paid to LYNXVALE by LEUKOSITE pursuant to Paragraph 4.1 shall be reduced by *
any *.
4.3 LEUKOSITE shall keep, and shall cause each of its AFFILIATES and
SUBLICENSEES to keep, full and accurate books of account containing all
particulars that may be necessary for the purpose of calculating all royalties
payable to LYNXVALE. Such books of account shall be kept at their principal
place of business and, with all necessary supporting data shall, for the three
(3) years next following the end of the calendar year to which each shall
pertain, be open for inspection by LYNXVALE or its designee upon reasonable
notice during normal business hours at LYNXVALE's expense for the sole purpose
of verifying royalty statements or compliance with this Agreement, but in no
event more than once in each calendar year. All information and data offered
shall be used only for the purpose of verifying royalties and shall be treated
as LEUKOSITE confidential information and may not be disclosed to anyone nor
used for any purpose other than as set forth herein. In the event that such
inspection uncovers an underpayment of royalties of ten percent (10%) or more
for any one year period, LEUKOSITE shall bear the cost of such inspection.
4.4 With each semi-annual payment, LEUKOSITE shall deliver to LYNXVALE a
full and accurate accounting to include at least the following information:
(a) Quantity of each PRODUCT subject to royalty sold (by country) by
LEUKOSITE, and its AFFILIATES;
(b) Total receipts for each PRODUCT subject to royalty (by country);
(c) Total royalties payable to LYNXVALE
(d) Royalties received from SUBLICENSEES.
4.5 In each year the amount of royalty due shall be calculated
semi-
*Confidential treatment requested: material has been omitted and filed
separately with the Commission.
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annually as of June 30 and December 31 (each as being the last day of an
"ACCOUNTING PERIOD") and shall be paid semi-annually within the sixty days next
following such date, every such payment shall be supported by the accounting
prescribed in Paragraph 4.4 and shall be made in United States currency.
Whenever for the purpose of calculating royalties conversion from any foreign
currency shall be required, such conversion shall be at the rate of exchange
thereafter published in the Wall Street Journal for the last business day of the
applicable ACCOUNTING PERIOD, as the case may be.
4.6 If the transfer of or the conversion into United States Dollar
Equivalent of any remittance due hereunder is not lawful or possible in any
country, such remittance shall be made by the deposit thereof in the currency of
the country to the credit and account of LYNXVALE or its nominee in any
commercial bank or trust company located in that country, prompt notice of which
shall be given to LYNXVALE, LYNXVALE shall be advised in writing in advance by
LEUKOSITE and provide to LEUKOSITE a nominee, if so desired.
4.7 Any tax required to be withheld by LEUKOSITE under the laws of any
country for the account of LYNXVALE, shall be promptly paid by LEUKOSITE for and
on behalf of LYNXVALE to the appropriate governmental authority, and LEUKOSITE
shall use its best efforts to furnish LYNXVALE with proof of payment of such
tax. Any such tax actually paid on LYNXVALE's behalf shall be deducted from
royalty payments due LYNXVALE.
4.8 Only one royalty shall be due and payable to LYNXVALE for the
manufacture, use and sale of a PRODUCT irrespective of the number of patents or
claims thereof which cover the manufacture, use and sale of such PRODUCT.
SECTION 5 - INFRINGEMENT AND NONASSERTION.
5.1(a) If any of the PATENT RIGHTS under which LEUKOSITE is the licensee
is infringed by a third party, LEUKOSITE shall have the right and option but not
the obligation to bring an action for infringement, at its expense, against such
third party in the name of LYNXVALE and/or in the name of LEUKOSITE, and to join
LYNXVALE as a party plaintiff if required. LEUKOSITE shall promptly notify
LYNXVALE of any such infringement and shall keep LYNXVALE informed as to the
prosecution of any action for such infringement. No settlement, consent judgment
or other voluntary final disposition of the suit which adversely affects PATENT
RIGHTS may be entered into without the consent of LYNXVALE, which consent shall
not unreasonably be withheld or delayed.
(b) In the event that LEUKOSITE shall undertake the enforcement and/or
defense of the PATENT RIGHTS by litigation, LEUKOSITE may withhold up to *
of the royalties otherwise thereafter due LYNXVALE hereunder
*Confidential treatment requested: material has been omitted and filed
separately with the Commission.
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and apply the same toward reimbursement of its expenses, including reasonable
attorneys' fees, in connection therewith. Any recovery of damages by LEUKOSITE
for any such suit shall be applied First in satisfaction of any unreimbursed
expenses and legal fees of LEUKOSITE relating to the suit, and next toward
reimbursement of LYNXVALE for any royalties withheld and applied pursuant to
this Section 5. The balance remaining from any such recovery shall be considered
NET SALES PRICE for which a royalty shall be paid to LYNXVALE pursuant to
Paragraph 4.1.
5.2 In the event that LEUKOSITE elects not to pursue an action for
infringement, upon written notice to LYNXVALE by LEUKOSITE that an unlicensed
third party is an infringer of a VALID CLAIM of PATENT RIGHTS licensed to
LEUKOSITE, LYNXVALE shall have the right and option, but not the obligation at
its cost and expense to initiate infringement litigation and to retain any
recovered damages.
5.3 In the event that litigation against LEUKOSITE is initiated by a
third-party charging LEUKOSITE with infringement of a patent of the third party
as a result of the manufacture, use or sale by LEUKOSITE of PRODUCT covered by
PATENT RIGHTS, LEUKOSITE shall promptly notify LYNXVALE in writing thereof.
LEUKOSITE's costs as to any such defense shall be creditable against any and all
payments due and payable to LYNXVALE under Paragraph 4.1 of this Agreement but
no royalty payment after taking into consideration any such credit under this
Paragraph 5.3 shall be reduced by more than * .
5.4 In the event of a judgment in any suit in which a court of competent
jurisdiction rules that the manufacture, use or sale by LEUKOSITE of PRODUCT
covered by a PATENT RIGHT has infringed on a third-party's patent requiring
LEUKOSITE to pay damages or a royalty to said third party, or in the event of a
settlement of such suit requiring damages or royalty payments to be made,
payments due to LYNXVALE under Paragraph 4.1 of this Agreement arising from the
applicable PRODUCT shall be correspondingly reduced by * of the amounts
due under the requirement of such judgment or under the terms of such
settlement. In no case, however, shall the royalty payment after taking into
consideration any such reduction under this Paragraph 5.4 be reduced by more
than * .
5.5 LYNXVALE or any person or entity licensed by LYNXVALE)([VALE shall not
assert a patent or patent application of LYNXVALE against LEUKOSITE or its
AFFILIATES or SUBLICENSEES or their customers with respect to any PRODUCT for
which royalties are payable under the Agreement.
5.6 In any infringement suit either party may institute to enforce the
PATENT RIGHTS pursuant to this Agreement, the other party hereto shall, at the
request of the party initiating such suit, cooperate in all respects and, to the
extent possible, have its employees testify when requested and make available
relevant
* Confidential treatment requested: material has been omitted and filed
separately with the Commission.
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records, papers, information, samples, specimens, and the like. All reasonable
out-of-pocket costs incurred in connection with rendering cooperation shall be
paid by the party requesting such cooperates.
SECTION 6 - WARRANTIES AND COVENANTS.
6.1 Each of LYNXVALE and LEUKOSITE warrants and represents to the other
that it has the full right and authority to enter into this Agreement, and that
it is not aware of any impediment which would inhibit its ability to perform the
terms and conditions imposed on it by this Agreement.
6.2 LYNXVALE warrants and represents that to the best of its knowledge,
information and belief, it owns all right, tide and interest in and to LICENSED
SUBJECT MATTER, INFORMATION, MATERIALS and PATENT RIGHTS; it has the right to
grant the rights granted hereunder; that the granting of such rights does not
require the consent of a third party; and that there are and will be no
outstanding agreements, assignments or encumbrances inconsistent with the
provisions of this Agreement.
6.3 LYNXVALE covenants not to supply LICENSED SUBJECT MATTER, INFORMATION
and MATERIALS to any third party except as permitted by LEUKOSITE (which
permission shall not be unreasonably withheld) and shall not use same in humans
without the consent of LEUKOSITE. LEUKOSITE hereby consents to the distribution
of certain antibodies for research purposes only by Serotec which are supplied
by LYNXVALE under the License Agreement between them in effect on the EFFECTIVE
DATE.
SECTION 7 - INDEMNIFICATION.
7.1 Each party shall notify the other of any claim, lawsuit or other
proceeding related to PRODUCT, PATENT RIGHTS, MATERIALS, LICENSED SUBJECT MATTER
or INFORMATION. LEUKOSITE agrees that it will defend, indemnify and hold
harmless LYNXVALE and the University of Cambridge and their faculty members,
researchers, employees, officers, trustees and agents and each of them (the
"Indemnified Parties") from and against any and all third party claims, causes
of action and costs (including attorney's fees) of any nature made or lawsuits
or other proceedings filed or otherwise instituted against the Indemnified
Parties arising out of the design, manufacture, sale or use of PRODUCT by
LEUKOSITE or its licensees licensed hereunder except to the extent of the
negligence or willful misconduct of an Indemnified Party. LEUKOSITE will also
assume responsibility for all costs and expenses related to such claims and
lawsuits for which it is obligated to indemnify the Indemnified Parties pursuant
to this Paragraph 6.1 including, but not limited to, the payment of all
attorney's fees and costs of litigation or other defenses. LEUKOSITE shall have
the right to control the
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defense, settlement or compromise of any such claim.
SECTION 8 - ASSIGNMENT; SUCCESSORS.
8.1 This Agreement shall not be assignable by either of the parties
without the prior written consent of the other party (which consent shall not be
unreasonably withheld or delayed), except that LEUKOSITE without the consent of
LYNXVALE may assign this Agreement to an AFFILIATE or to a successor in interest
or transferee of all or substantially all of the portion of the business to
which this Agreement relates.
8.2 Subject to the limitations on assignment herein, this Agreement shall
be binding upon and inure to the benefit of said successors in interest and
assigns of LEUKOSITE and LYNXVALE. Any such successor or assignee of a party's
interest shall expressly assume in writing the performance of all the terms and
conditions of this Agreement to be performed by said party.
SECTION 9 - TERMINATION.
9.1 Except as otherwise specifically provided herein and unless sooner
terminated pursuant to Paragraph 9.2 or 9.3 of this Agreement, this Agreement
and the licenses and rights granted thereunder shall remain in full force and
effect until the expiration of the last to expire PATENT RIGHT, at which time
LEUKOSITE shall have a fully paid-up nonexclusive, non-cancelable license.
9.2 LEUKOSITE shall have the right to terminate this Agreement or any or
all of its licenses under one or more PATENT RIGHTS in one or more countries
upon sixty (60) days prior written notice.
9.3(a) Subject to Section 9.3(b), upon material breach of any material
provisions of this Agreement by either party to this Agreement, in the event the
breach is not cured within sixty (60) days after written notice to the breaching
party by the other party, in addition to any other remedy it may have, the other
party at its sole option may terminate this Agreement, provided that such other
party is not then in breach of this agreement In the event that a party in
breach disputes such termination and institutes legal action with respect
thereto, the Agreement shall not be terminated until there is a final court
decision in this respect from which no appeal can be or is taken.
(b) In the event that LYNXVALE is in breach of any material provision of
this Agreement, in the event that the breach is not cured within sixty (60) days
of written notice to LYNXVALE by LEUKOSITE, in addition to any other remedy it
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may have, LEUKOSITE may withhold any payment due to LYNXVALE under this
Agreement until such breach is cured such withholding of payments by LEUKOSITE
shall not constitute a breach of this Agreement.
9.4 Upon any termination of this Agreement LEUKOSITE shall have the option
but not the obligation to finish any work-in-progress and to sell any completed
inventory of a PRODUCT covered by this Agreement which remains on hand as of the
date of the termination, so long as LEUKOSITE pays to LYNXVALE the royalties
applicable to said subsequent sales in accordance with the same terms and
conditions as set forth in this Agreement.
9.5 In the event that the licenses granted to LEUKOSITE under this
Agreement are terminated, any granted sub-licenses shall remain in full force
and effect, provided that the SUBLICENSEE is not then in breach of its
sub-license agreement and the SUBLICENSEE agrees to be bound to LYNXVALE as a
licensor under the terms and conditions of the sub-license agreement. LYNXVALE,
upon request, shall acknowledge the applicability of this provision to a
SUBLICENSEE.
9.6 The obligations of Sections 6 and 7 and Paragraphs 9,4, 9.5, 9.6 and
9.7 shall survive any termination of this Agreement.
9.7 Upon termination of this Agreement for any reason, nothing herein
shall be construed to release either party from any obligation that matured
prior to the effective date of such termination.
SECTION 10 - GENERAL PROVISIONS.
10.1 The relationship between LYNXVALE and LEUKOSITE is that of
independent contractors. LYNXVALE and LEUKOSITE are not joint venturers,
partners, principal and agent, master and servant, employer or employee, and
have no relationship other than as independent contracting parties. LYNXVALE
shall have no power to bind or obligate LEUKOSITE in any manner. Likewise,
LEUKOSITE shall have no power to bind or obligate LYNXVALE in any manner.
10.2 Any matter or disagreement under Paragraph 2.4 which this Agreement
specifically specifies is to be resolved by arbitration shall be submitted to a
mutually selected single arbitrator to so decide any such matter or
disagreement. The arbitrator shall conduct the arbitration in accordance with
the Rules of the International Chamber of Commerce, unless the parties agree
otherwise. If the parties are unable to mutually select an arbitrator, the
arbitrator shall be selected in accordance with the procedures of the
International Chamber of Commerce. The decision and award rendered by the
arbitrator shall be final and binding. Judgment upon the award may be entered in
any court having jurisdiction thereof. Any arbitration pursuant to this section
requested by LYNXVALE shall be
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held in Boston, Mass. USA, and any arbitration requested by LEUKOSITE shall be
held in London, England or such other place as may be mutually agreed upon in
writing by the parties.
10.3 This Agreement sets forth the entire agreement and understanding
between the parties as to the subject matter thereof and supersedes all prior
agreements in this respect. There shall be no amendments or modifications to
this Agreement, except by a written document which is signed by both parties.
10.4 This Agreement shall be construed and enforced in accordance with the
law of England, without reference to its choice of law principles.
10.5 The headings in this Agreement have been inserted for the convenience
of reference only and are not intended to limit or expand on the meaning of the
language contained in the particular article or section.
10.6 Any delay in enforcing a party's rights under this Agreement or any
waiver as to a particular default or other matter shall not constitute a waiver
of a party's right to the future enforcement of its rights under this Agreement,
excepting only as to an expressed written and signed waiver as to a particular
matter for a particular period of time.
10.7 Notices. Any notices given pursuant to this Agreement shall be in
writing and shall be deemed delivered upon the earlier of (i) when received at
the address set forth below, or (ii) three (3) business days after mailed by
certified or registered mail postage prepaid and properly addressed, with return
receipt requested, or (iii) by facsimile as confirmed by certified or registered
mail. Notices shall be delivered to the respective parties as indicated or any
other address designated by a party to the other party in writing under the
notice provisions of this Section 10.7:
To LEUKOSITE: LEUKOSITE, INC.
000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Copy to: Xxxxxx X. Xxxxxxx, Esq.
Carella, Byrne, Bain, Gilfillan,
Xxxxxx, Xxxxxxx & Olstein
0 Xxxxxx Xxxx Xxxx
Xxxxxxxx, X.X. 00000
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To LYNXVALE: LYNXVALE LTD.
00 Xxxxxxxxxxx Xx.
Xxxxxxxxx XX0, 0XX
Xxxxxx Xxxxxxx
10.8 LEUKOSITE shall not use the name of LYNXVALE or the University of
Cambridge or of any staff member, employee student or any adaptation thereof in
any advertising, promotional or sales literature without the prior written
approval of LYNXVALE.
10.9 in the event a court or governmental agency of competent jurisdiction
holds any provision of this Agreement to be invalid, such holding shall have no
effect on the remaining provisions of this Agreement, and they shall continue in
full force and effect. Upon such holding, the parties shall, within a reasonable
period of time, determine whether the severed provision(s) detrimentally and
materially affect the obligations or performance of either or both parties. If
so affected, the parties shall, within a reasonable period of time, negotiate in
good faith to modify this Agreement to relieve such effects. If such
negotiations do not result in mutually agreeable modification to this Agreement,
either effected party may terminate this Agreement upon providing the other
party with thirty (30) days written notice of such termination.
10.10 This Agreement shall not create any rights including without
limitation third-party beneficiary rights, in any person or entity not a party
to this Agreement.
10.11 This Agreement may be signed in two or more counterparts, each such
counterpart shall be deemed an original and together shall constitute one and
the same Agreement.
14
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IN WITNESS WHEREOF, the parties have executed this Agreement in two or
more counterparts, each as an original and all together as one instrument as of
the date set forth above.
LYNXVALE: LYNXVALE LTD.
By: /s/ X.X. Xxxxxxxx
Name: X.X. Xxxxxxxx
Title: Director
LEUKOSITE: LEUKOSITE, INC.
By: /s/ Xxxxx Xxxxxxxxx
Name: X.X. Xxxxxxxxx
Title CEO And Chairman
I, Xxxxxx Xxxxxxxx, Ph.D., have read this Agreement in its entirety and I
understand and consent to the terms herein.
/s/ Xxxxxx Xxxxxxx
XXXXXX XXXXXXXX
