Exhibit 10.22
FACTOR IX RESEARCH AGREEMENT
(Blood Factor IXai)
FACTOR IX RESEARCH AGREEMENT (this "Agreement"), effective as
of March 28, 1997 (the "Effective Date"), between THE TRUSTEES OF COLUMBIA
UNIVERSITY IN THE CITY OF NEW YORK, a New York corporation ("Columbia" or
"Columbia Innovation Enterprise"), and VIMRx PHARMACEUTICALS INC., a Delaware
corporation (the "Company").
W I T N E S S E T H :
WHEREAS, Columbia has established a laboratory at its Health
Sciences Division to conduct research in the field of coagulation and
anticoagulants; and
WHEREAS, the Company wishes to provide financial support for
research in the laboratory as described in Section 1 of this Agreement and in
order to obtain certain rights with respect to the results of the research;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the parties hereby agree as follows:
Article I.
RESEARCH
1.1. Conduct of Research. Columbia will conduct, in a
laboratory at its Health Sciences campus, under the direction of Dr. Xxxx Xxxx
and Dr. Xxxxx Xxxxx, research on Factor IX-Related Coagulation Inhibitors in
accordance with the proposal set forth in Exhibit A hereto ("Research"). The
parties may mutually agree to change the scope of the research proposal at any
time.
1.2. Columbia Governance of Research. (a) Columbia will be
solely responsible for the governance of all Research conducted under this
Agreement.
(b) All Columbia faculty members, researchers, students,
post-doctoral students and other scientists (hereinafter "Investigators")
working on Research hereunder, as well as senior administrative staff with
access to Confidential Information and/or VIMRx Information (each as hereinafter
defined), will be required to sign a letter agreement substantially in the form
of Exhibit B hereto (hereinafter, an "Investigator Letter"), and no Investigator
who has not signed an Investigator Letter shall participate in Research
hereunder. Promptly after receipt thereof, Columbia shall deliver to the Company
a copy of each Investigator Letter received by it during the term of this
Agreement.
1.3. No Specific Result. Nothing in this Agreement will be
construed as a promise by Columbia to achieve any specific research result.
1.4. Title to Property. Except with respect to any equipment
provided by the Company pursuant to Section 2.1(b) below, title to all equipment
acquired by Columbia to conduct research hereunder and all materials and other
tangible results of research conducted hereunder will vest in Columbia upon
acquisition. The foregoing shall not be construed so as to prevent the Company
from purchasing equipment (and retaining title thereto), or leasing equipment
(with the lessor thereof retaining title thereto) and loaning such equipment to
Columbia for the purpose of conducting Research hereunder.
1.5. Company Access. To permit and facilitate the Company's
performance of its obligations and exercise of its rights hereunder, Columbia
will ensure that Company personnel have regular and meaningful access to all
Principal Investigators and all Investigators conducting Research hereunder.
1.6. Independent Contractors. The Company and Columbia are
independent contractors and neither is an agent, joint venturer or partner of
the other.
Article II.
SUPPORT FOR THE CENTER
2.1. Support for the Laboratory. (a) During the three-year
period beginning on the Effective Date of this Agreement, the Company will pay
$2,700,000 to Columbia for the support of the Research.
(b) In addition to the above-described support, the Company
will supply to Columbia the material to be used as a source of the Coagulation
Factor IX protein either from blood or prepared by recombinant DNA synthesis,
and any specialized equipment necessary to conduct the Research. The Company
will also provide sufficient funds to enable Columbia to obtain antibodies to
Factor IX and Factor XI that will be needed to conduct the Research.
2.2. Payment. The above payments shall be made in quarterly
installments in advance, with the first payment due on the fifth business day
following the Effective Date, and all subsequent payments due on the first day
of each succeeding calendar quarter beginning after the Effective Date. In the
event any payment is due on a day on which the banks in New York City are
authorized or required to close, such payment shall be due and payable on the
next succeeding business day.
2.3. Government Funding. Columbia may, consistent with the
provisions of this Agreement, solicit or obtain government funding for the
Research and the Company shall cooperate with such efforts. If any such
2
government funding is solicited, Columbia agrees to elect to retain or obtain
any government patent rights arising from any governmentally funded Research in
accordance with the provisions of 35 U.S.C. Sec. 202, et seq.
Article III.
REPORTS AND NOTICES
3.1. Reports of Research. (a) Columbia Innovation Enterprise
will promptly prepare and deliver an Invention Disclosure Report in form and
substance reasonably satisfactory to the Company with respect to any new and
useful process, machine, manufacture or composition of matter conceived of or
first reduced to practice by any Investigator during the term of this Agreement
and arising from any Research hereunder ("Invention").
(b) Columbia will furnish the Company semiannually with (i) a
written report summarizing in reasonable detail Research activity not previously
reported pursuant to Section 3.1(a) hereof, which shall include a Research
Information Report in form and substance reasonably satisfactory to the Company
with respect to information and tangible physical materials, including any
chemical compound or substances, biological cell, or component thereof, whether
derived from biological material or synthesized (hereinafter, "Materials")
developed in the course of Research hereunder, but which does not constitute an
Invention ("Research Information").
3.2. Financial Records and Reports. (a) Columbia will
maintain records of its expenditures of funds received under this Agreement in
accordance with its customary accounting policies and procedures. On or before
April 30, 1998, 1999 and 2000, Columbia will provide the Company with a complete
accounting of expenditures hereunder during the preceding calendar year and, on
the date falling 120 days after the expiration or earlier termination of this
Agreement, Columbia will provide the Company with a complete accounting of
expenditures hereunder during the period beginning January 1 prior to such
expiration or termination through the date of such expiration or termination.
(b) For two years after the termination of this Agreement, the
Company, at its own expense and on reasonable notice and during normal business
hours, may examine Columbia's accounting records with respect to expenditures
under this Agreement for the year.
3.3. Notices. Any notice required or permitted to be given
under this Agreement shall be in writing and shall be either personally
delivered (including by recognized overnight delivery services such as FedEx) or
sent by certified mail (return receipt requested), postage or other charges
prepaid,
3
if to Columbia, to: Executive Director
Columbia Innovation Enterprise
Columbia University
000 Xxxx 000xx Xx., Mail Code 2206
000 Xxxxxxxxxxx Xxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
copy to: General Counsel
Columbia University
000 Xxxx 000xx Xx., Mail Code 4308
000 Xxx Xxxxxxxx Xxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
if to the Company, to: VIMRx Pharmaceuticals, Inc.
0000 Xxxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xx. Xxxxxxx X. Xxxxxxx
copy to: Xxxxxxx Xxxxxx & Green, P.C.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxxxxx, Esq.
or to such other address as a party may specify by notice given in accordance
with the terms hereof. All notices shall be deemed given upon receipt.
Article IV.
CONFIDENTIALITY AND RELATED OBLIGATIONS
REVIEW AND FREEDOM OF PUBLICATION
4.1. Company Obligations; VIMRx Information. (a) The Company
will treat as confidential all reports and information disclosed to it under
Article III, as well as any other reports, information and materials furnished
hereunder which Columbia has designated as "Confidential." Accordingly, except
to the extent permitted under a license agreement entered into pursuant to this
Agreement, or as required by law or appropriate for the performance or
enforcement of this Agreement, for the term of this Agreement, and for a period
of two years thereafter, the Company will not disclose or use for its own or any
third party's benefit (other than as contemplated hereby) or make available any
information disclosed hereunder to any third party (other than independent
contractors retained by the Company in connection with its performance of this
Agreement who are under an obligation of confidentiality with respect to this
Agreement), without Columbia's written permission and will use information only
for the purpose of evaluating its interest in future research or possible
commercial development of the results of research in the Center, or in
connection with possible investment in or sale of the Company, provided,
4
however, that the Company does not need Columbia's consent to disclose such
information to third parties, provided such disclosure is pursuant to a written
confidentiality agreement, for the purpose of evaluating future research or
possible commercial development of such information, or possible investment in
or sale of the Company.
(b) Neither party will use the name, logo, insignia, or
symbols of the other, including but not limited to those of the faculties or
departments of Columbia), or any variation or combination thereof, or the name
of any officer, director, trustee, faculty member, other employee, or student of
either party for any purpose whatsoever without the other party's prior written
consent, such consent not to be unreasonably withheld; and provided further that
either party shall be deemed to have granted its consent to any request by the
other to use such name, logo/insignia or symbol if such party fails to respond
to such request within ten business days of its receipt of such a request.
(c) The Company may, but is not obligated to, disclose
proprietary or otherwise confidential information of the Company ("VIMRx
Information") to Columbia. Columbia may, but is not obligated to, receive VIMRx
Information from the Company. VIMRx Information shall only include information
which the Company has designated in writing as "Confidential" and which the
Company submits (at the time of, or within fifteen days after, disclosure) so
marked to Columbia Innovation Enterprise.
4.2. Freedom of Publication. The Company acknowledges that
Columbia is dedicated to free scholarly exchange and to public dissemination of
the results of its scholarly activities. Except for Columbia's obligations of
confidence set forth in Section 4.3 and the obligations, set forth in their
respective Investigator Letters, of the individuals conducting research, nothing
in this Agreement shall restrict the right of Columbia and its faculty and other
employees to publish, disseminate or otherwise disclose research conducted
pursuant to this Agreement.
4.3. Review of Disclosures. Columbia Innovation Enterprise
will promptly deliver to the Company copies of all proposed public disclosures
of Confidential Information (as hereinafter defined) it receives pursuant to
Investigator Letters or otherwise, but no later than ten business days after
receipt. The Company will promptly review the proposed public disclosures, and,
if, as determined by the Company in its sole discretion, it can do so without
compromising its present or potential patent rights, waive all or a portion of
the applicable review periods set forth in Exhibit B. The Company will review
portions of proposed public disclosures, as they are made available, and will
conduct its review of such portions in a manner comparable to its review of
complete proposed public disclosures. Material alteration of reviewed and
approved disclosures prior to disclosure will necessitate initiation of a new
review cycle with its associated review period set forth in Exhibit B. At the
end of the review periods set forth in Exhibit B, the authors will have the
5
right, in their sole discretion, to make such proposed public disclosures. For
clarity, it is understood and agreed that this Section 4.3 applies to proposed
public disclosures of Confidential Information only. Any and all disclosures of
VIMRx Information shall require the prior written consent of the Company, which
may be granted or withheld in its sole discretion.
4.4. Columbia Obligations. (a) Except as set forth in Section
4.3 above, or in Section 4.5, or (subject to the provisions of Section 4.6) as
required by law or appropriate for the performance or enforcement of this
Agreement, until the expiration or termination of this Agreement, or, if
earlier, until such time as Columbia becomes free to enter into a license
agreement with a third party with respect to such Inventions, reports,
information or other intellectual property, pursuant to the provisions of
Article VI hereof:
(i) Columbia will not, without the Company's written permission,
publicly disclose or use for its own or any third party's benefit (other than as
contemplated hereby) or make available any to any third party (other than
independent contractors retained by Columbia in connection with its performance
of this Agreement who are under an obligation of confidentiality with respect to
this Agreement) any Inventions, reports or information arising out of or related
to Research (herein, "Confidential Information"); and
(ii) Columbia will treat as confidential all VIMRx Information, will
not disclose or use for its own or any third party's benefit (other than as
contemplated hereby) or make available any such VIMRx Information to any third
party (other than independent contractors retained by Columbia in connection
with its performance of this Agreement who are under an obligation of
confidentiality with respect to this Agreement) without the Company's written
permission.
(b) For purposes of this Article IV, "disclosure" means any
communication of information deemed to be disclosure by the U.S. Patent and
Trademark Office, examples of which include but are not limited to publication
in scientific journals or other print or electronic media, oral or written
presentation of information at scientific meetings, and public presentation of
information to any individual or group of individuals not bound by a
confidentiality obligation with respect to nondisclosure of the information.
(c) The parties recognize and agree that Columbia is from time
to time required to disclose inventions to agencies of the United States
government pursuant to the provisions of 35 U.S.C.
ss. 202(c)(1), and shall xxxx all such disclosures as "confidential."
6
4.5. Exceptions to Confidentiality. The obligations of
confidentiality and non-use under Sections 4.1 and 4.4 do not apply to any
information which:
(a) was known, other than pursuant to this
Agreement or the research contemplated
hereby, to the party receiving the
information prior to receipt thereof from
the other party;
(b) was or becomes a matter of public
information or publicly available by reason
of filing for patent protection or otherwise
through no fault of the party receiving the
information or persons acting for it or on
its behalf;
(c) is acquired, other than pursuant to this
Agreement or the research contemplated
hereby, by the party receiving the
information from a third party entitled to
disclose the information to it; or
(d) the other party develops independently,
other than pursuant to this Agreement or the
research contemplated hereby.
4.6. Disclosure by Law. In the event that either party or any
principal, affiliate, director, officer, employee, agent, controlling person or
other representative (including attorneys, accountants, and financial and
scientific advisors) of such party (hereinafter, "Representative") of either
party is requested pursuant to, or required by, applicable law or regulation or
by legal process to disclose any Confidential Information (and in the event any
Representative of Columbia is so requested or required to disclose VIMRx
Information), such party agrees that as soon as practicable and, in any event,
prior to compliance with any such request or legal process, it will provide the
other party with written notice of such request or legal process to enable the
other party to seek an appropriate protective order. In the event that such
protective order or other remedy is not obtained, such party agrees to furnish
only that portion of the Confidential Information or VIMRx Information which, in
the opinion of counsel, it is legally compelled to disclose and to use
reasonable efforts to obtain assurance that, if possible, confidential treatment
will be accorded the Confidential Information and/or VIMRx Information. Any such
disclosure of Confidential Information or VIMRx Information (except any
disclosure of VIMRx Information by the Company) shall be made after prior
consultation with the other party as to the content, timing and manner of
dissemination of such disclosure. It is understood and agreed that the foregoing
provisions of this Section 4.6 shall not apply to disclosures made pursuant to
Section 4.4(c) hereof.
7
Article V.
PATENT PROSECUTION
5.1. Preparation, Filing and Prosecution. Subject to the
provisions of Section 4.3 hereof and any license agreement subsequently entered
into between the parties hereto, the preparation, filing and prosecution of
patent applications covering Inventions hereunder, and the decisions as to
whether and where to seek patent protection, shall be solely within the
discretion of Columbia and at Columbia's expense, provided, however, that
Columbia shall consult with the Company regarding such matters and shall submit
to the Company for its review and comment a copy of all proposed patent
applications and other patent filings relating to any Invention at least 10 days
prior to filing thereof.
5.2. Reimbursement. If the Company licenses any Invention, it
shall promptly reimburse Columbia for reasonable and documented patent
prosecution and maintenance expenses, and shall assume responsibility for all
further such expenses, all as set forth in, and subject to, the applicable
license agreement.
5.3. Abandonment. Columbia will notify the Company in writing
if it decides not to seek patent protection for any Invention or to abandon an
application already filed, and will allow the Company to license such Invention
on the terms and conditions of the form of License Agreement attached hereto as
Exhibit C.
Article VI.
INTELLECTUAL PROPERTY RIGHTS
6.1. Company Licenses. (a) Subject to any limitations imposed
by law or by the terms of any government grant, government contract, or
Cooperative Research and Development Agreement with a government agency
("CRADA"), Columbia will grant to the Company a license in substantially the
form attached hereto as Exhibit C, at royalty rates and other payment terms as
set forth therein, for any Invention or Research Information. The Company at any
time may request that Columbia enter into such a license by notice in writing to
Columbia accompanied by a completed written license agreement in substantially
the form attached hereto as Exhibit C, executed on behalf of the Company by an
authorized representative of the Company.
(b) Columbia may at any time, and prior to entering into any
license agreement for any Invention or Research Information with any third
party, shall, request the Company to enter into a license to such Invention or
Research Information. Such request shall be by notice in writing, shall be
captioned "Request to Enter Into License" and shall reference this section of
8
this Agreement. If the Company does not tender to Columbia a license of such
Invention or Research Information on substantially the terms and conditions of
the form of License Agreement attached hereto as Exhibit C within six months of
such written request, Columbia shall be free to enter into a license agreement
with a third party.
(c) In the event the Company, by notice in writing, tenders to
Columbia a license of any Invention, Research Information or Material, whether
pursuant to Columbia's request to the Company or the Company's request to
Columbia, and Columbia fails to deliver an executed counterpart thereof to the
Company within 90 days of the date such license is tendered, either party may
commence an arbitration pursuant to the provisions of Section 9.3 hereof. The
arbitration panel shall resolve all disputed issues related to such License,
including, if applicable, (i) whether the tendered license conforms to the terms
and conditions of Exhibit C hereof, and (ii) whether the commercialization
schedule set forth in such license is reasonable in light of prevailing industry
and market conditions and the Company's resources. The panel shall decide
whether any license to the intellectual property proposed to be licensed is
required to be granted under the terms hereof, and shall render a written
decision on all disputed issues. If a license is required to be granted under
the terms of this Agreement, and the parties so request, the panel shall engage
a neutral attorney to draft the text of any disputed provisions, which draft
text shall incorporate the panel's decision on any such disputed provisions.
Columbia shall be required to execute and deliver to the Company a license
agreement incorporating the panel's decision and otherwise on the terms and
conditions of Exhibit C hereof (the "Arbitral License"). In the event the
Company declines to accept a license agreement on such form, Columbia shall be
free to enter into one or more licenses, with any third party, of the Invention,
Research Information or Material to have been licensed pursuant to the Arbitral
License.
6.2. Title to Inventions and Research Information. Subject to
the Company's license rights described in this Article VI, Columbia will have
sole right, title, and interest to any Inventions and Research Information.
6.3. Invention Expenses. In the event Columbia grants to any
third party a license of any Invention or grants or assigns any other
intellectual property rights subject to or contemplated by this Agreement,
Columbia shall so advise the Company, and the Company at its option may submit
to Columbia an accounting of all reasonable expenditures made by the Company
arising out of or related to such Invention or other intellectual property,
including direct support of the project from which the Invention or other
intellectual property was conceived, and costs and expenses of patent
prosecution paid by the Company ("Invention Expenses"). In each such event,
Columbia shall remit to the Company fifty percent (50%) of all royalties and
9
other payments received by it in respect of such license, assignment or other
rights until such time as all Invention Expenses in respect of such Invention or
other intellectual property are reimbursed to the Company.
Article VII.
REPRESENTATIONS AND WARRANTIES
7.1. Representations and Warranties of Columbia. Columbia
represents and warrants to the Company, as of the date hereof, as follows:
(a) Columbia is a not-for-profit corporation organized and in
good standing under the law of the State of New York.
(b) Columbia has all requisite corporate power and authority
and all necessary licenses and permits to own and operate its properties and to
carry on the activities contemplated by this Agreement.
(c) The execution and delivery of this Agreement, any license
agreement substantially in the form of Exhibit C hereto, and any other documents
or transactions contemplated hereby are within the corporate powers of, and have
been duly and effectively authorized by, all necessary corporate and other
action on the part of Columbia and do not violate, conflict with or result in
any breach of any of the terms, conditions or provisions of, or constitute a
default under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or asset of Columbia pursuant to any indenture,
loan agreement, or other agreement or instrument or corporate restriction to
which Columbia is a party or by which Columbia, its properties or operations may
be bound, and such action will not result in any violation of the provisions of
the certificate of incorporation or bylaws or similar incorporating or governing
documents of Columbia or any laws, ordinances, governmental rules or regulations
of courts or other governmental orders to which Columbia, its properties or
operations is subject.
(d) No consent, approval or authorization of any third party,
or filing, registration or qualification with any governmental authority (other
than those, if any, already obtained) is required on the part of Columbia as a
condition to the execution and delivery of this Agreement.
(e) This Agreement is a legal, valid and binding obligation of
Columbia enforceable against Columbia in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency, moratorium, preference,
fraudulent conveyance or other laws affecting the enforcement of creditors'
rights or remedies generally, now or hereafter in effect, and subject to the
application of equitable principles and the availability of equitable remedies.
10
7.2. Representations and Warranties of the Company. The
Company represents and warrants to Columbia as of the date hereof, as follows:
(a) The Company is a corporation organized and in good
standing under the law of the State of Delaware.
(b) The Company has all requisite corporate power and
authority and all necessary licenses and permits to own and operate its
properties and to carry on its activities as now conducted and as currently
proposed to be conducted.
(c) The execution and delivery of this Agreement, any license
agreement substantially in the form of Exhibit C hereto, and any other documents
or transactions contemplated hereby are within the corporate powers of, and have
been duly and effectively authorized by, all necessary corporate and other
action on the part of the Company and do not violate, conflict with or result in
any breach of any of the terms, conditions or provisions of, or constitute a
default under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or asset of the Company pursuant to any indenture,
loan agreement, or other agreement or instrument or corporate restriction to
which the Company is a party or by which the Company, its properties or
operations may be bound, and such action will not result in any violation of the
provisions of the certificate of incorporation or bylaws or similar
incorporating or governing documents of the Company or any laws, ordinances,
governmental rules or regulations of courts or other governmental orders to
which the Company, its properties or operations is subject.
(d) No consent, approval or authorization of any third party,
or filing, registration or qualification with any governmental authority (other
than those, if any, already obtained or effected) is required on the part of the
Company as a condition to the execution and delivery of this Agreement.
(e) This Agreement is a legal, valid and binding obligation of
the Company enforceable against the Company in accordance with its terms, except
as enforcement may be limited by bankruptcy, insolvency, moratorium, preference,
fraudulent conveyance or other laws affecting the enforcement of creditors'
rights or remedies generally, now or hereafter in effect, and subject to the
application of equitable principles and the availability of equitable remedies.
11
Article VIII.
TERM AND TERMINATION.
8.1. Initial Term. This Agreement shall be effective as of
the Effective Date and shall continue in full force and effect, unless earlier
terminated as herein provided, for three years thereafter.
8.2. Termination. (a) Upon 30 days' prior written notice
either party may terminate this Agreement by reason of a material breach of this
Agreement by the other party, if such breach has not been cured within 30 days
after written notice of the breach has been given.
(b) Either party may terminate this agreement by three months'
notice to the other given at any time on or after the date falling eighteen
months from the date of this Agreement in the event that such party, in good
faith and after consultation with the other party, believes that the milestones
set forth in Exhibit A to be achieved by Columbia, including any modifications
thereof made by mutual agreement, have not been achieved.
(c) This Agreement shall automatically terminate if either
party commits any act of bankruptcy, becomes insolvent, files a petition under
any bankruptcy or insolvency act or has any such petition filed against it.
8.3. Effect of Termination. (a) On termination of this
Agreement because of the Company's material breach, the Company will have no
further rights hereunder, all licenses granted pursuant to Article VI shall
automatically terminate on the effective date of termination of this Agreement,
and any sublicenses granted by the Company under any such license shall be
assigned to and assumed by Columbia, and each sublicense shall so provide.
(b) For purposes of this Agreement, "material breach" by the
Company shall mean a breach of its payment obligations under Article II hereof
which shall not be remedied after all applicable notice and cure periods have
elapsed.
8.4. Survival. (a) The Company's obligations under Section
4.1 and Article V and, except for termination because of the Company's material
breach hereof, the Company's rights under licenses granted under Article VI
prior to termination shall survive the termination of this Agreement.
(b) Unless this Agreement is terminated by reason of the
Company's material breach hereof, the Company's rights under Article VI to
obtain licenses to Inventions and Research Project Information developed prior
to the effective date of termination hereof shall survive the termination of
this Agreement and shall be subject to the terms, conditions and time limits set
12
forth in Article VI. All rights to any Invention or Research Information not
licensed to the Company pursuant to this Agreement shall revert to Columbia.
Article IX.
MISCELLANEOUS
9.1. Assignment. This Agreement may not be assigned by either
party without the consent of the other party, provided, however, the Company may
assign this Agreement to a person or entity who acquires, by purchase, merger or
otherwise, all or substantially all the assets of the Company, and who assumes
all the obligations of the Company hereunder, without obtaining the consent of
Columbia. Any purported assignment or delegation in violation of this Section
9.1 shall be null and void ab initio.
9.2. Entire Agreement; Amendment. This Agreement sets forth
the entire agreement between the parties relating to the subject matter hereof
and supersedes all previous agreements, written or oral. This Agreement may be
amended only by an instrument in writing duly executed on behalf of the parties.
9.3. Governing Law; Arbitration. (a) This Agreement shall be
governed by New York law applicable to agreements made and to be performed in
New York. Each party hereby submits to the jurisdiction of the state and federal
courts sitting in the County of New York, and agrees that service of process may
be effected by written notice given in accordance with the terms hereof.
(b) In the event of any dispute which pursuant to this
Agreement is to be resolved by arbitration, whether hereunder or under any
License Agreement to be entered into pursuant hereto, such arbitration shall be
conducted in New York, New York before three arbitrators, by the American
Arbitration Association ("AAA") pursuant to its Commercial Arbitration Rules, as
the same may be amended from time to time. The panel shall consist of three
arbitrators. Two of the arbitrators shall be nominated by the respective parties
within fifteen (15) days of commencement of the arbitration, and the third (who
shall serve as chairman of the panel) shall be nominated by the party-nominated
arbitrators within thirty (30) days of commencement of the arbitration. Each
party shall nominate, and the party-nominated arbitrators shall nominate,
arbitrators with qualifications appropriate to decide the issues in dispute.
Each party hereto agrees to participate therein diligently and in good faith.
The determination made in any such arbitration shall be binding on the parties
hereto and may be entered for judgment in any court of competent jurisdiction.
All fees and expenses of the arbitrator(s) and of the AAA itself shall be borne
equally by the parties.
9.4. Waiver of Breach. The waiver by a party of a breach or
violation by the other party of any provision of this Agreement shall not
operate or be construed as a waiver of any subsequent breach or violation by any
party of the same or any other provision of this Agreement. No such waiver shall
be effective unless in writing signed by the party claimed to have made the
waiver.
13
9.5. Headings. The headings of the sections and paragraphs of
this Agreement are inserted for convenience of reference only and shall not
constitute a part hereof.IX.5. Headings. The headings of the sections and
paragraphs of this Agreement are inserted for convenience of reference only and
shall not constitute a part hereof.
9.6. Multiple Counterparts. This Agreement may be signed in
any number of counterparts which taken together shall constitute one and the
same instrument.
9.7. Exhibits, Schedules. All Exhibits and Schedules referred
to in this Agreement are attached hereto and are incorporated herein by
reference as if fully set forth herein.
9.8. Construction. The language in all parts of this
Agreement shall in all cases be construed as a whole according to its fair
meaning, strictly neither for nor against any party hereto, and without implying
a presumption that the terms thereof shall be more strictly construed against
one party by reason of the rule of construction that a document is to be
construed more strictly against the person who himself or through his agent
prepared the same, it being agreed that representatives of both parties have
participated in the preparation hereof.
9.9. Number and Gender. Whenever in this Agreement the
singular is used, it shall include the plural if the context so requires, and
whenever the masculine gender is used in this Agreement, it shall be construed
as if the masculine, feminine or neuter gender, respectively, has been used
where the context so dictates, with the rest of the sentence being construed as
if the grammatical and terminological changes thereby rendered necessary have
been made.
IN WITNESS WHEREOF, Columbia and the Company have caused this
Agreement to be executed by their duly authorized representatives as of the day
and year first written above.
THE TRUSTEES OF COLUMBIA UNIVERSITY
IN THE CITY OF NEW YORK
By /s/ Xxxx X. Xxxxxxxxx
----------------------------
Executive Director, Columbia
Innovation Enterprise
VIMRx PHARMACEUTICALS, INC.
By /s/ Xxxxxxx X. Xxxxxxx
--------------------------
Xxxxxxx X. Xxxxxxx
President
14
