EXHIBIT 10.2
CONFIDENTIAL TREATMENT REQUESTED PURSUANT TO RULE 24B-2
Certain portions, indicated by [*****], of this exhibit have been omitted
pursuant to Rule 24b-2 of the Securities Act of 1934. The omitted materials
have been filed separately with the Securities and Exchange Commission.
STUDY AGREEMENT
Between
Merck & Co., Inc.
and
Cell and Molecular Technology, Inc.
This Agreement confirms the mutual understanding between Merck & Co., Inc., a
New Jersey corporation, having a place of business at Xxx Xxxxx Xxxxx,
Xxxxxxxxxx Xxxxxxx, XX 00000-0000 ("Merck") and Cell and Molecular Technology,
Inc., having a place of business at 000 Xxxxxxxx Xxxxxx, Xxxxxxxxxxxx, XX,
000000 ("CMTI").
1. Definitions.
"Affiliate" of Merck shall mean any entity (i) in which [*****] or more of
the voting equity interests are now or hereafter owned or controlled,
directly or indirectly, by Merck, (ii) which now or hereafter owns or
controls, directly or indirectly, [*****] or more of the voting equity
interests of Merck, or (iii) in which [*****] or more of the voting equity
interests are now or hereafter owned or controlled, directly or
indirectly, by an entity identified in the preceding clause (i) or (ii).
"Agreement" shall mean this Study Agreement between Merck and CMTI.
"Cause" is defined in Paragraph 13.
"Final Report" is defined in Paragraph 7.
"Inventions" shall mean any inventions or discoveries, whether or not
patentable, made by employees and/or agents of CMTI (either solely or
jointly with employees and/or agents of Merck) that arise from the Study.
"Material" shall mean, [*****].
"Merck Information" shall mean all information, data, Material and other
items supplied by Merck or its Affiliates and all information and reports
developed by CMTI as a result of the Study.
"Study" shall mean the research described in the Work Plan, which is being
conducted for the purpose set forth in Paragraph 2.
"Term" is defined in Paragraph 4.
"Work Plan" shall mean the Work Plan attached as Attachment A.
2. Purpose. CMTI agrees to diligently perform the Study for cell line
banking, characterization and phenotyping.
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3. Material. Merck shall supply, at no cost to CMTI, sufficient samples of
the Material to carry out the Study in accordance with this Agreement. The
Material is not to be used in humans. The Material is not to be reverse
engineered for any purpose, including to identify structures or
properties. It is understood that the Material is provided only for the
performance of the Study and shall not be used for any other purpose, nor
shall the Material or any derivatives, analogs, modifications or
components thereof be transferred, delivered or disclosed to any third
party without the advance written consent of Merck. Any unused Material
and any derivatives, analogs, modifications or components thereof, shall
be returned to Merck or otherwise disposed of in accordance with
instructions from Merck promptly upon completion of the Study or as may be
earlier required under Paragraph 13.
4. Term. This Agreement shall be effective on the date of the last signature
("Effective Date"). The term of this Agreement shall expire on the one (1)
year anniversary of the Effective Date, subject to early termination as
provided in Paragraph 13 (the "Term").
5. Amount.
(a) Merck shall pay CMTI a total of one million three hundred
thirty-eight thousand one hundred thirty U.S. dollars ($1,
338,130.00) for all costs and expenses associated with carrying out
the Study [*****]. Payment shall be made as follows: Merck shall pay
six hundred sixty nine thousand sixty-five U.S. dollars
($669,065.00), within [*****] days of receipt of an appropriate
invoice from CMTI following the Effective Date and six hundred sixty
nine thousand sixty-five U.S. dollars ($669,065.00) within [*****]
days of receipt of the Final Report and an appropriate invoice from
CMTI.
(b) Merck may request to have additional cell lines added to the Study.
For each cell line to be analyzed in Part I of the Study, Merck
shall pay CMTI [*****].
6. Confidentiality. CMTI agrees to keep confidential and not to use, except
for the purpose of conducting the Study, the Merck Information. These
obligations of confidentiality and non-use shall continue during the Term
of this Agreement and even after the Term expires. These obligations of
confidentiality and non-use shall not apply to Merck Information which (i)
is in the public domain by use and/or publication before its receipt from
Merck or development under the Study, or thereafter enters the public
domain through no fault of CMTI; (ii) was already in CMTI's possession
prior to receipt from Merck or development under the Study, as evidenced
by CMTI's written records; or (iii) is properly obtained by CMTI from a
third party which has a valid right to disclose such information to the
CMTI and is not under a confidentiality obligation to Merck.
7. Reports; Use of Information. CMTI shall keep Merck informed of the
progress of the Study by written reports on a bi-weekly basis as provided
in the Work Plan, and will provide a complete written report of the Study
results to Merck at the end of the Term ("Final Report"). Merck and its
Affiliates shall have the unrestricted right to use and disclose all
information in the Study reports and to use and disclose any technical
information developed pursuant to this Agreement, for any and all purposes
Merck and its Affiliates deem necessary or advisable in the ordinary
course of business. At Merck's request, CMTI shall provide to Merck copies
of all documentation and data relating to the Study or shall permit Merck
to inspect and copy such documentation and data.
8. Inventions.
(a) CMTI shall promptly inform Merck in confidence of any Inventions
relating to the Material. All Inventions shall be the sole and exclusive
property of Merck. CMTI will, upon request by Merck, promptly execute any
and all patent applications, assignments or other instruments which Merck
deems are necessary or useful for the protection of any such Inventions,
which may be filed or prepared at Merck's cost and expense.
(b) CMTI represents and warrants that no governmental entity or other
third party has or shall have any claim or right to the results of the
Study or any Inventions.
9. Publication. CMTI shall have no right hereunder to publish any of the
Study results.
30
10. Compliance With Law. CMTI shall conduct the Study in accordance with all
applicable laws, rules and regulations, including, without limitation, all
current governmental regulatory requirements concerning Good Laboratory
Practices. CMTI will notify Merck in writing of any deviations from
applicable regulatory or legal requirements. CMTI hereby certifies that it
will not and has not employed or otherwise used in any capacity the
services of any person debarred under Section 21 USC 335a in performing
any services hereunder.
11. Use of Human Materials. If any human cell lines, tissue, human clinical
isolates or similar human-derived materials ("Human Materials") have been
or are to be collected and/or used in the Study, CMTI represents and
warrants (i) that it has complied, or shall comply, with all applicable
laws, guidelines and regulations relating to the collection and/or use of
the Human Materials and (ii) that it has obtained, or shall obtain, all
necessary approvals and appropriate informed consents, in writing, for the
collection and/or use of such Human Materials. CMTI shall provide
documentation of such approvals and consents upon Merck's request. CMTI
further represents and warrants that such Human Materials may be used as
contemplated in this Agreement without any obligations to the individuals
or entities ("Providers") who contributed the Human Materials, including,
without limitation, any obligations of compensation to such Providers or
any other third party for the intellectual property associated with, or
commercial use of, the Human Materials for any purposes.
12. Liability. Merck assumes no responsibility and shall have no liability for
the nature, conduct or results of any research, testing or other work
performed hereunder. CMTI UNDERSTANDS THAT THE MATERIAL IS SUPPLIED "AS
IS" AND IS PROVIDED WITHOUT WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OR ANY OTHER WARRANTY, EXPRESS OR IMPLIED. CMTI
ACKNOWLEDGES THAT THE MATERIAL IS EXPERIMENTAL IN NATURE AND MAY HAVE
UNKNOWN HAZARDOUS CHARACTERISTICS, THAT THEY ARE AWARE OF THE RISKS OF
WORKING WITH EXPERIMENTAL MATERIALS AND THAT THEY WILL STRICTLY ADHERE TO
PROPER LABORATORY PROCEDURES FOR HANDLING CHEMICALS WITH UNKNOWN HAZARDS.
THE MATERIAL WILL NOT BE USED IN HUMANS.
13. Termination. (a) Merck may terminate this Agreement at any time, with or
without Cause, effective upon [*****] days' written notice to CMTI. In the
event of a termination of this Agreement without Cause, Merck shall
reimburse CMTI for the pro-rata costs incurred in performance of the Study
and for any non-cancelable commitments made, up to the date of
termination; provided, however, that in no case will reimbursement under
this Agreement exceed the amount specified in Paragraph 5. If this
Agreement is terminated for Cause, then in addition to any other remedies
available to Merck, no such reimbursement shall be paid by Merck to CMTI.
For the purposes of the foregoing, "Cause" shall mean the breach by CMTI
of any of its representations or warranties under this Agreement, or the
failure of CMTI to comply with any of its obligations hereunder.
(b) Upon termination of this Agreement, or at any other time that Merck
may request, CMTI agrees to return all Merck Information, and all
documents generated by CMTI in connection with the Study to Merck, except
CMTI may retain one copy in a secure location solely for recordkeeping
purposes.
14. Survival. The provisions of Paragraphs 3(b) (other than Merck's
obligations to supply the Material), 6, 7, 8, 9, 11, 12, 13, 14, 15, 16,
17, 18 and 20 and all definitions relating to the foregoing, shall survive
termination or expiration of this Agreement.
15. Notices. Any notices required or provided by the terms of this Agreement
shall be in writing, addressed in accordance with this Paragraph, and
shall be delivered personally or sent by certified or registered mail,
return receipt requested, postage prepaid or by nationally-recognized
express courier services providing evidence of delivery. The effective
date of any notice shall be the date of first receipt by the receiving
party. Notices shall be sent to the address/addressee given below or to
such other address/addressee as the party to whom notice is to be given
may have provided to the other party in writing in accordance with this
provision.
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If to Merck: [*****]
With a copy to: [*****]
Merck & Co., Inc.
X.X. Xxx 000
Xxx Xxxxx Xxxxx
Xxxxxxxxxx Xxxxxxx, XX
00000-0000
If to CMTI: [*****]
Cell and Molecular Technology, Inc.
000 Xxxxxxxx Xxxxxx,
Xxxxxxxxxxxx, XX, 000000
16. Governing Law. This Agreement shall be construed in accordance with the
laws of the State of New Jersey, and the patent laws of the United States,
without reference to provisions of conflicts of laws.
17. Entire Agreement. This Agreement, together with any Attachments attached
hereto and specifically referenced herein, constitutes the entire
agreement between the parties with respect to the Study and supersedes and
replaces any and all previous arrangements and understandings, whether
oral or written, between the parties with respect to the Study . Any
amendment or modification to this Agreement shall be of no effect unless
made in writing signed by an authorized representative of each party.
18. Publicity/Use of Names. No disclosure of the existence, or the terms, of
this Agreement may be made by either party, and no party shall use the
name, trademark, trade name or logo of the other party or its employees in
any publicity, promotion, news release or disclosure relating to this
Agreement or its subject matter, without the prior express written
permission of the other party, except as may be required by law.
19. Assignment. CMTI may not assign its rights or obligations under this
Agreement without the prior written consent of Merck. Any such purported
assignment shall be void.
20. Severability. The provisions of this Agreement are severable, and if any
provisions hereof shall be determined to be invalid or unenforceable by a
court of competent jurisdiction, the remaining provisions shall continue
in full force and effect.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized representatives, effective as of the
date of the last signature set forth below.
MERCK & CO., INC. CELL & MOLECULAR TECHNOLOGY , INC.
BY: /s/ [*****] BY: /s/ Xxxxxx X. Xxxxxxx
TITLE: [*****] TITLE: Chief Executive Officer
DATE: 8/18/04 DATE: 8/18/04
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ATTACHMENT A
WORK PLAN
BACKGROUND
[*****]
PROPOSAL
[*****]
PART #1
[*****]
PART #2
[*****]
33
