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EXHIBIT 10.3.52
PARTICIPATION AGREEMENT
This Participation Agreement (the "Agreement") is made this 30th day of
November, 2000, by and between Neoprobe Corporation, a Delaware corporation
("Neoprobe") and Xxxx, LLC, a Delaware limited liability company ("Xxxx")
(collectively, the "Parties").
WHEREAS, Neoprobe has exclusive rights to certain intellectual property
relating to the treatment of cancer using cellular therapy (hereinafter,
"Neoprobe's Intellectual Property").
WHEREAS, Xxxx has exclusive rights to certain intellectual property
relating to the treatment of cancer using a novel cytokine factor (hereinafter,
"Xxxx'x Intellectual Property").
WHEREAS, the Parties desire to collaborate their intellectual property
to develop a cancer treatment regimen (the "Treatment Regimen") to license to a
third party.
NOW, THEREFORE, in consideration of the mutual covenants exchanged
herein, the Parties agree as follows:
1. DEVELOPMENT OF THE TREATMENT REGIMEN. Neoprobe grants to Xxxx a
limited, nonexclusive license to use Neoprobe's Intellectual Property
and technical information relating to the treatment of cancer using
cellular therapy. Xxxx shall utilize Neoprobe's Intellectual Property
and technical information in conjunction with Xxxx'x Intellectual
Property and technical information to develop the Treatment Regimen.
Any new Intellectual Property developed by Xxxx in this effort will be
jointly owned by Xxxx and Neoprobe, without obligation of accounting
except as provided in Section 3 below. Upon development of the
Treatment Regimen, the Parties shall endeavor to identify a third party
to license the Treatment Regimen on mutually agreeable terms and
conditions.
2. EXPENSES. Neoprobe shall be responsible for the first $50,000.00 in
direct costs (the "Initial Direct Costs") associated with the
development of the Treatment Regimen. Xxxx shall submit invoices to
Neoprobe, which state in reasonable detail the itemization of said
Initial Direct Costs each calendar month and Neoprobe shall remit said
amount, up to a total of $50,000.00 to Xxxx within thirty days of
receipt of Xxxx'x invoice. Except for the Initial Direct Costs, each
party shall be responsible for all of its own costs and expenses
incurred in connection with the development of the Treatment Regimen.
3. REVENUE. In the event the Treatment Regimen is licensed to a third
party, the Parties agree to allocate any and all revenue associated
with the licensing of the Treatment Regimen in the following manner:
(a) Development contract gross profit will be split equally between the
parties.
(b) Sales, licensing, and similar revenue, less direct costs associated
therewith, will be split as follows:
(I) 50:50 until this amount reaches $400,000;
(ii) thereafter, 80% to Neoprobe and 20% to Xxxx until Neoprobe
receives one million nine hundred fifty thousand dollars
($1,950,000) in the aggregate from this amount; and
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(iii) 50:50 between the parties thereafter.
4. TERM OF AGREEMENT. In the event that on or before August 31, 2001, the
parties enter into a joint development, strategic partnership, license
or similar agreement with a third party relating to the Treatment
Regimen, this Agreement shall continue in full force and effect until
such time that such third party agreement expires. In the event the
parties do not enter into such a third party agreement on or before
August 31, 2001, this Agreement shall terminate on August 31, 20011
unless the parties mutually agree otherwise in writing.
5. INTELLECTUAL PROPERTY. The parties acknowledge that the Ohio State
University Research Foundation ("OSURF") has granted each party their
respective rights, pursuant to certain agreements and conditions, in
the intellectual property, which the parties desire to contribute to
the development of the Treatment Regimen. Each party represents and
warrants to the other that its license of OSURF intellectual property
is in full force and effect, and that this agreement does not violate
the terms of such license. The parties each acknowledge that the
Intellectual Property licensed hereby is subject to the rights of
OSURF. The parties agree to maintain their respective agreements in
good standing with OSURF and to notify the other party in the event of
a termination or any material change in said agreements, which could
adversely affect the marketability of the Treatment Regimen. In the
event that a party's agreement(s) with OSURF is terminated, breached or
otherwise adversely affected, and the breaching party fails to take
action to correct such situation within thirty (30) days of notice from
OSURF, the non-breaching party may institute action to correct the
breach to the satisfaction of OSURF and shall be entitled to
reimbursement from the breaching party for the cost of same.
6. ADDITIONAL WORK BY XXXX. The parties acknowledge that in the event that
they enter into an agreement with a third party to license or develop
the Treatment Regimen, such third party is likely to require
additional, specialized assistance ("Implementation Assistance") to
commercialize the Treatment Regimen. Xxxx shall provide the
Implementation Assistance by and through a separate agreement with the
third party on such terms and conditions as Xxxx xxxxx appropriate.
Neoprobe shall not be entitled to any revenue from the Implementation
Assistance provided by Xxxx, nor shall Neoprobe have any responsibility
for expenses and costs associated with the provision of such
Implementation Assistance.
7. CONFIDENTIALITY AND USE. Xxxx acknowledges that the Intellectual
Property and technical information of Neoprobe to be disclosed to it
hereunder (collectively, "Confidential Information") is confidential
and proprietary to Neoprobe. Unless expressly authorized in writing by
Neoprobe, the Xxxx agrees to retain the Confidential Information in
confidence and will not copy or disclose the Confidential Information
to any third party or use the Confidential Information for any purpose
other than as permitted by this Agreement. Xxxx agrees to protect the
Confidential Information to the same extent and in the same manner that
it would protect its own confidential information, but in no event will
such efforts fall below a level of reasonable care, which shall include
limiting disclosure to only those personnel who have a need to know for
the purposes of developing the
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Treatment Regimen. Xxxx will notify Neoprobe promptly upon discovery of
the loss of any item containing Confidential Information and of any
circumstances of which it has knowledge surrounding any unauthorized
possession, use or knowledge of Confidential Information.
Confidential Information may only be disclosed to Xxxx'x employees and,
even then, only to the extent that such employees have a specific need
to know of the Confidential Information for the purpose of developing
the Treatment Regimen. Before any of Xxxx'x employees receives any part
of the Confidential Information, such employee will be required to read
this Agreement and to acknowledge and agree to abide by Xxxx'x
obligations under this Section 7.
8. RELATIONSHIP OF THE PARTIES. Nothing in this Agreement is intended or
shall be construed as forming a partnership, joint venture or
employment relationship between Neoprobe and Xxxx.
9. MATERIAL BREACH/RESOLUTION OF DISPUTES. Either party may terminate this
Agreement upon a material breach of this Agreement by the other party,
after providing the other party with thirty (30) days advance written
notice of intent to terminate and setting forth the alleged breach, and
failure of such other party to reasonably cure such breach or, in the
event the nature of the breach is such that it cannot be corrected
within thirty (30) days, to establish a corrective action plan
reasonably acceptable to the other party within such time frame.
The parties agree to initially attempt to resolve all disputes between
them informally. In the event such resolution is not possible after
thirty (30) days of informal efforts to resolve same, such disputes
shall be submitted to an independent mediator, selected by mutual
agreement of the parties within ten (10) days. In the event the parties
cannot agree upon an independent mediator, or if such independent
mediator is unsuccessful in resolving a dispute within thirty (30)
days, the parties agree to submit to binding arbitration in accordance
with the rules and procedures of the American Arbitration Association.
10. NOTICES. Any notice required or permitted to be given hereunder to
either party shall be deemed given if sent by hand delivery, registered
or certified mail, return receipt requested, or by overnight mail
delivery for which evidence of delivery is obtained by the sender, to
such party at:
If to Neoprobe: if to Xxxx:
Xxxxx X. Xxxx, President Xxxx X. Xxxxxxxxx, President
Neoprobe Corporation Xxxx, LLC
000 Xxxxx Xxxxx Xxxxx 0000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000-0000 Xxxxxxxx, XX 00000 t
tel.: 000-0000 tel.: 000-0000
fax: 000-0000 fax: 000-0000
11. ASSIGNMENT. Neither this Agreement, nor any obligations required to be
performed hereunder shall be assigned by either party without the prior
express written consent of the other party. The provisions of, and
obligations arising under, this Agreement shall extend to, be binding
upon and inure to the benefit of the successors and assigns of each
party hereto.
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12. SEVERABILITY. If any part of this Agreement is deemed by a court of
competent jurisdiction to be invalid, illegal, inoperative, or contrary
to law or professional ethics, such part shall be reformed, if
possible, to conform to law and ethics and the remaining parts of this
Agreement shall be fully effective and operative to the extent
reasonably possible. If any restriction contained in this Agreement is
held by any court to be unenforceable or unreasonable, a lesser
restriction shall be enforced in its place and the remaining
restrictions shall be enforced independently of each other.
13. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto with respect to the Treatment Regimen. Oral
statements or prior written materials not specifically incorporated in
this Agreement shall not be of any force and effect. In entering into
and executing this Agreement, the parties rely solely upon the
representations and agreements contained in this Agreement and no
others. No changes in or additions to this Agreement shall be
recognized unless and until made in writing and signed by an authorized
officer or agent of both parties
14. GOVERNING LAW. This Agreement has been executed and delivered and shall
be construed and enforced in accordance with the laws of the State of
Ohio.
15. WAIVER OF BREACH. No provision of this Agreement shall be deemed waived
unless evidenced by a written document signed by an authorized officer
or agent of the parties hereto. The waiver by either party of a breach
or violation of any provision of this Agreement shall not operate as,
or be construed to be, a waiver of any subsequent breach of the same or
other provision of this Agreement.
16. CONFIDENTIALITY OF TERMS. Neither party shall, without the prior
written consent of the other party, disclose the terms of this
Agreement or any part thereof to any third party, except as may be
required by law or to the disclosing party's financial or legal
advisors who are under a duty of confidentiality.
17. SECTION HEADINGS. The section and other headings contained in this
Agreement are for reference purposes only and shall not affect in any
way the meaning or interpretation of this Agreement.
18. EXECUTION. This Agreement and any amendments hereto may be executed in
multiple counterpart originals. Each counterpart shall be deemed an
original; but all counterparts together shall constitute one and the
same instrument.
19. ADDITIONAL ASSURANCE. The provisions of this Agreement are
self-operative and do not require further agreement by the parties;
provided, however, at the request of either party, the other party
shall execute, except as otherwise provided in this Agreement, any
additional instruments and take any additional acts as may be
reasonably necessary to effectuate this Agreement.
21. FORCE MAJEURE. Neither party hereto shall be liable nor deemed to be in
default for any delay or failure in performance under this Agreement or
other interruption of service or employment deemed resulting, directly
or indirectly, from acts of God, civil or military authority, acts of
public enemy, war, accidents, fires, explosions, earthquakes, floods,
failure of transportation, strikes or other work
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interruptions by either party's employees, or any similar or dissimilar
cause beyond the reasonable control of either party hereto.
21. AUTHORITY. Each signatory to this Agreement represents and warrants
that he possesses all necessary capacity and authority to act for,
sign, and bind the respective entity and employees thereof on whose
behalf he is signing.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the date first written
above.
NEOPROBE CORPORATION XXXX, LLC.
/s/ Xxxxx Xxxx /s/ Xxxx X. Xxxxxxxxx
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By: Xxxxx X. Xxxx, President By: Xxxx X. Xxxxxxxxx, Managing Member
Date: November 30, 2000 Date: 30 November 00
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