EXHIBIT 3.3
(XXXXX EXHIBIT 10.3)
RESEARCH AND LICENSE AGREEMENT
THIS AGREEMENT is between THE GENERAL HOSPITAL CORPORATION, a
not-for-profit Massachusetts corporation doing business as Massachusetts
General Hospital having its principal place of business at Xxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000 ("GENERAL") and NYMOX CORPORATION, a
corporation having its principal place of business at 0000 Xxxxx Xxxx,
Xxxxxxx Xxxx, Xxxxxxxxx 00000 ("NYMOX").
WHEREAS, Xxxx Xxxxx, M.D. and Xxxxxxx de la Xxxxx, M.D., of the
Laboratory of Molecular Hepatology of the Massachusetts General Hospital
Cancer Center of the GENERAL funded in part by the Department of Health
and Human Services, have discovered Neural Thread Protein, and developed
antibodies, probes, and other reagents, patents, and information
associated with this protein and are interested in the development of new
diagnostic strategies for Alzheimer's Disease and other neurodegenerative
diseases ("TECHNOLOGY");
WHEREAS, GENERAL and Drs. Wands and de la Monte desire to
continue their research pertaining to the TECHNOLOGY and are seeking
additional funds to continue such research;
WHEREAS, as a center for research and education, GENERAL is
interested in facilitating the use of this new TECHNOLOGY and in licensing
PATENT RIGHTS and RESEARCH INFORMATION as hereinafter defined and thus
benefiting the public and GENERAL by facilitating the development of
healthcare products, but is without capacity to commercially develop,
manufacture, and distribute any such product; and
WHEREAS, NYMOX has the capacity and know-how that will enhance
the usefulness of the results of the research performed by Xx. Xxxxx and
Dr. de la Monte and desires to provide GENERAL with funding to continue
the research and to obtain the right to use the results of this research
under a license to PATENT RIGHTS in order to commercially develop,
manufacture, use and distribute products throughout the world;
NOW, THEREFORE, in consideration of the premises and of the
faithful performance of the covenants herein contained, the parties hereto
agree as follows:
1. DEFINITIONS
1.1 The term "AFFILIATE" as applied to NYMOX shall mean NYMOX
and any company or other legal entity other than NYMOX in whatever country
organized, controlling, or controlled by NYMOX. The term "control" means
possession, direct or indirect, of the powers to direct or cause the
direction of the management and policies of a person, whether through the
ownership of voting securities, by contract or otherwise.
1.2 The term "AGREEMENT YEAR" shall mean the twelve (12) month
period beginning on the EFFECTIVE DATE and each succeeding twelve (12)
month period thereafter
for the term of the Agreement. If not otherwise specified, terms
involving time periods shall be applied pro rata according to any time
frame in which less than the full specified period is involved.
1.3 The term "EFFECTIVE DATE" shall mean September 1, 1995.
1.4 The term "FIELD OF RESEARCH" shall mean research pertaining
to the use of any form of neural thread protein, its antibodies, and any
cDNAs or genes or genomic fragments coding for neural thread protein, for
diagnostic purposes.
1.5 The term "FIRST COMMERCIAL SALE" shall mean in each country
the first sale of any PRODUCT by NYMOX, its AFFILIATES or SUBLICENSEES,
following approval of its marketing by the appropriate governmental agency
for the country in which the sale is to be made and when governmental
approval is not required, the first sale in that country.
1.6 The term "GENERAL MATERIAL" shall mean any material or
substance which has biological activity in the FIELD OF RESEARCH (i) which
relates to SPONSORED RESEARCH and is in the possession of the PRINCIPAL
INVESTIGATORS on the EFFECTIVE DATE and which GENERAL has the right to
transfer to NYMOX under the terms and conditions of this Agreement, or
(ii) which is discovered, produced or derived by an INVESTIGATOR in the
performance of SPONSORED RESEARCH.
1.7 The term "INVENTION" shall mean any new and useful process,
manufacture, or composition of matter which is in the FIELD OF RESEARCH
(a) which was conceived (i) prior to the EFFECTIVE DATE or (ii) in the
performance of SPONSORED RESEARCH; and (b) which is first reduced to
practice, constructively or actually (i) by an INVESTIGATOR in the
performance of SPONSORED RESEARCH or (ii) within one year of the
termination of the SPONSORED RESEARCH in which it was conceived by a
person who had been an INVESTIGATOR; and (c) in which GENERAL has rights
by virtue of (i) sole or joint inventorship by an INVESTIGATOR (or in the
case of an INVENTION first reduced to practice within said one year period
by a person who has been an INVESTIGATOR) or (ii) the terms of any
agreement that does not preclude granting rights to NYMOX hereunder.
1.8 The term "INVESTIGATOR" shall mean PRINCIPAL INVESTIGATORS,
any other member of GENERAL's Professional Staff, graduate student,
undergraduate student, or employee of GENERAL who shall perform SPONSORED
RESEARCH.
1.9 The term "LICENSE FIELD" shall mean the manufacture, use or
sale of PRODUCTS for diagnostic purposes.
1.10 The term "NYMOX MATERIALS" shall mean any material or
substance first discovered, produced or derived by an employee of NYMOX
prior to termination of the SPONSORED RESEARCH which pertains to the
SPONSORED RESEARCH, and in which NYMOX has ownership or licensable rights.
1.11 (a) The term "NET SALES PRICE" shall mean the gross billing
price of any PRODUCT received by NYMOX, its AFFILIATE or SUBLICENSEE for
the sale or distribution of any PRODUCT, less the following amounts
actually paid out by NYMOX, its AFFILIATE or SUBLICENSEE or credited
against the amounts received by them from the sale or distribution of
PRODUCT:
(i) discounts allowed;
(ii) returns;
(iii) transportation charges or allowances;
(iv) customs, duties and charges; and
(v) sales, transfer and other excise taxes or other
governmental charges levied on or measured by the sales
but no franchise or income tax of any kind whatsoever.
(b) Transfer of a PRODUCT to an AFFILIATE for sale by the
AFFILIATE shall not be considered a sale; in the case of such a transfer
the NET SALES PRICE shall be based on the gross billing price of the
PRODUCT by the AFFILIATE as invoiced to its customer.
(c) Every commercial use or disposition of any PRODUCT
(excluding any use for (i) use in assuring product testing or control,
(ii) promotional distribution to physicians or (iii) distribution to
researchers by or on behalf of NYMOX or any of its AFFILIATES or
SUBLICENSEES or (iv) obtaining regulatory approvals), in addition to a
bona fide sale to a bona fide customer (not to be construed as including
NYMOX or any such AFFILIATE or SUBLICENSEE) shall be considered a sale of
such PRODUCT at the NET SALES PRICE then payable in an arm's length
transaction.
(d) In the event any PRODUCT is sold as a component of a
combination of active functional elements, NET SALES PRICE for purposes of
determining royalty payments on such combination, shall be calculated by
multiplying the NET SALES PRICE of the combination by the fraction A over
A+B, in which "A" is the gross selling price of the PRODUCT portion of the
combination when sold separately during the ACCOUNTING PERIOD in which the
sale was made, and "B" is the gross selling price of the other active
functional elements of the combination sold separately during the
ACCOUNTING PERIOD in question. All gross selling prices shall be
calculated as the average gross selling price of the PRODUCT for the
ACCOUNTING PERIOD as hereafter defined in the country in which the sale is
made. In the event that no separate sale of either such above-designated
PRODUCT or such above designated active functional elements of the
combination is made during the ACCOUNTING PERIOD in which the sale was
made, NET SALES shall be calculated by multiplying NET SALES PRICE of such
combination by the fraction C over C+D, in which "C" is the standard
fully-absorbed cost of the PRODUCT portion of such combination, and "D" is
the standard fully absorbed cost of the other active functional
element(s), such costs being arrived at using the standard accounting
procedures of NYMOX which will be in accord with generally accepted
accounting practices. The "ACCOUNTING PERIOD" shall be the periods for
which royalty payments are due as provided for in paragraph 7.7.
1.12 The term "PATENT RIGHT" shall mean:
(a) (i) the United States Patent Application Serial No.
07/287,207 filed December 20, 1988 entitled "Method of Detecting
Neurological Disease or Dysfunction," (ii) the United States CIP Patent
Application Serial No. 07/451,975 filed on December 20, 1989, (iii) the
United States Patent Application Serial Number 08/055,778 filed May 3,
1993 as a file wrapper continuation, and, (iv) the United States Patent
Application Serial Number to be assigned, filed June 6, 1995 as a
divisional application;
(b) (i) the United States Patent Application Serial No.
08/050,559 filed on April 20, 1993 entitled "Neural Thread Protein Gene
Expression and Detection of Alzheimer's Disease, " (ii) the United States
CIP Patent Application Serial No. 08/230,139 filed on April 20, 1994,
(iii) the United States CIP Patent Application 08/340,426 filed on
November 14, 1994, (iv) the United States Patent Application Serial No.
08/454,557 filed on May 30, 1995 as a divisional application, and (v) the
United States Patent Application Serial No. 08/450,673 filed on May 30,
1995 as a divisional application;
(c) any United States patent application which contains one or
more claims to an INVENTION; and
(d) any division or continuation and any foreign patent
application or equivalent corresponding to such patent applications and
any Letters Patent or the equivalent thereof issuing thereon or reissue or
extension thereof.
1.13 The term "PRINCIPAL INVESTIGATORS" shall mean Xxxx Xxxxx,
M.D. and Xxxxxxx de la Monte, M.D.
1.14 The term "PRODUCT" shall mean any diagnostic article,
composition, apparatus, substance, chemical, material, method or service
(a) whose manufacture, use, or sale infringes one or more claims of any
PATENT RIGHT, or (b) which, in the absence of any PATENT RIGHT which would
be infringed by such manufacture, use or sale, (i) incorporates one or
more GENERAL MATERIALS or (ii) whose discovery, development, manufacture
or use employs any GENERAL MATERIAL, RESEARCH INFORMATION or PROCESS or
unpatented INVENTION or NYMOX MATERIAL.
1.15 The term "PROCESS" shall mean any process or method for
the production, manufacture or use of any PRODUCT.
1.16 The term "RESEARCH INFORMATION" shall mean any research
data, formulas, process information or other information pertaining to the
SPONSORED RESEARCH (a) known to PRINCIPAL INVESTIGATORS on the EFFECTIVE
DATE and which PRINCIPAL INVESTIGATORS are not under obligation to any
third party to maintain in confidence, or (b) thereafter produced by an
INVESTIGATOR in the performance of SPONSORED RESEARCH.
1.17 The term "RESEARCH PROPOSAL" shall mean the written
description of SPONSORED RESEARCH attached hereto as Appendix A on the
EFFECTIVE DATE or thereafter appended hereto as Appendix A and
incorporated herein pursuant to paragraph 2.4(c) and shall include a
reasonably detailed description of the goals and scope of such research,
and a budget that details the equipment, materials, personnel, and the
funds to be supplied by NYMOX to support the research described in such
proposal.
1.18 The term "SPONSORED RESEARCH" shall mean scientific
research pertaining to the FIELD OF RESEARCH funded in whole or in part by
NYMOX and performed by an INVESTIGATOR after the EFFECTIVE DATE pursuant
to a RESEARCH PROPOSAL attached as Appendix A.
1.19 The term "SUBLICENSEE" shall mean any non-AFFILIATE third
party licensed by NYMOX to make, have made, use or sell any PRODUCT or use
any PROCESS.
1.20 "VALID CLAIM" shall mean a claim of any PATENT RIGHT
which has not been finally rejected or declared invalid by a patent office
or by a court of competent jurisdiction in any unappealed and unappealable
decision.
1.21 The use herein of the plural shall include the singular,
and the use of the masculine shall include the feminine.
2. GENERAL' S RESEARCH AND NYMOX' S SUPPORT THEREOF
2.1 Beginning on the EFFECTIVE DATE and continuing
thereafter, unless sooner terminated, for the next three (3) years,
GENERAL shall:
(a) through the PRINCIPAL INVESTIGATORS and any other
INVESTIGATOR conduct SPONSORED RESEARCH and the grants and other amounts
paid by NYMOX pursuant to paragraphs 2.2(a) and 2.2(b) plus any additional
funds paid pursuant to paragraph 2.4(c) shall be used to support the
expenses of SPONSORED RESEARCH, in accordance with the RESEARCH PROPOSAL;
(b) promptly and systematically disclose to NYMOX RESEARCH
INFORMATION which NYMOX shall be entitled to use except to the extent such
use is covered by (i) a PATENT RIGHT under which NYMOX has elected not to
be licensed under this Agreement or (ii) any other patent, other than a
PATENT RIGHT, owned by GENERAL and not licensed to NYMOX;
(c) promptly and systematically describe to NYMOX GENERAL
MATERIALS, and at NYMOX's request provide such GENERAL MATERIALS to NYMOX
in accordance with paragraph 3.3, which NYMOX shall be entitled to use in
accordance with paragraph 3.4 except to the extent (i) such GENERAL
MATERIAL is covered by (A) a PATENT RIGHT under which NYMOX has elected
not to be licensed under this Agreement or (B) any other patent, other
than a PATENT RIGHT, owned by GENERAL and not licensed to NYMOX or (ii)
GENERAL does not have the right to grant to NYMOX the right to use such
GENERAL MATERIAL in accordance with paragraph 3.4;
(d) as to all SPONSORED RESEARCH:
(i) for the purpose of facilitating disclosure to NYMOX
of RESEARCH INFORMATION, INVENTIONS and GENERAL MATERIAL,
permit duly authorized employees of or representatives of
NYMOX to visit the PRINCIPAL INVESTIGATORS' laboratories
at the GENERAL or other GENERAL facilities where
SPONSORED RESEARCH is conducted at the reasonable
convenience of PRINCIPAL INVESTIGATORS or any other
pertinent INVESTIGATOR; and
(ii) promptly advise NYMOX of any INVENTION and provide
NYMOX with adequate advance notice of the intent to file,
filing allowance and issuance of any PATENT RIGHT, except
those filed by GENERAL at its own expense pursuant to
paragraph 5.1.
2.2 In consideration of said undertaking by PRINCIPAL
INVESTIGATORS, NYMOX shall at NYMOX's expense:
(a) beginning with the EFFECTIVE DATE, make annual research
grants to GENERAL for the support of SPONSORED RESEARCH in accordance with
budgets that shall be supplied to NYMOX by PRINCIPAL INVESTIGATORS (all
figures in U.S. dollars) in the following amounts:
One Hundred Seventy-Five Thousand Dollars ($175,000) in the
First AGREEMENT YEAR,
Two Hundred Thousand Dollars ($200,000) in the Second AGREEMENT
YEAR,
Two Hundred Twenty-Five Thousand Dollars ($225,000) in the Third
AGREEMENT YEAR,
or such greater amounts as shall be agreed to under paragraph
2.4(c).
(b) pay to the GENERAL the grants set forth in the foregoing
subparagraph (a) in advance in accordance with the following:
One Hundred Seventy-Five Thousand Dollars ($175,000) within
thirty (30) days of the execution of the Agreement as advance
payment for the First AGREEMENT YEAR,
One Hundred Thousand Dollars ($100,000) on or about March 1,
1996 as advance payment of one-half of the grant for the Second
AGREEMENT YEAR beginning on September 1, 1996;
One Hundred Thousand Dollars ($100,000) on or about September l,
1996 as advance payment of the second half of the grant for the
Second AGREEMENT YEAR;
One Hundred Twelve Thousand Five Hundred Dollars ($112,500) on
or about March 1, 1997; as advance payment of one-half of the
grant for the Third AGREEMENT YEAR beginning on September 1,
1997; and,
One Hundred Twelve Thousand Five Hundred Dollars ($112,500) on
or about September 1, 1997 as advance payment of the second half
of the grant for the Third AGREEMENT YEAR.
It is understood and agreed by the parties that, unless
otherwise agreed, the funds provided in advance by NYMOX shall not be
expended by the PRINCIPAL INVESTIGATORS prior to the start of the
AGREEMENT YEAR for which such finds were intended. In the event that the
SPONSORED RESEARCH is terminated in accordance with Article 10, any
advance funds paid to GENERAL in excess of the amounts due GENERAL under
Article 10 and the noncancellable expenses reasonably committed to or
incurred by GENERAL prior to the termination shall be returned to NYMOX.
(c) provide PRINCIPAL INVESTIGATORS and INVESTIGATORS with
NYMOX MATERIALS in accordance with the terms and conditions of paragraphs
3.1 and 3.5 and in reasonable amounts sufficient to allow PRINCIPAL
INVESTIGATORS to carry out the SPONSORED RESEARCH, and such other projects
as the parties may agree to conduct, to the extent reasonably available
for distribution by NYMOX; and,
(d) In consideration of the licenses granted pursuant to
Article 6 by GENERAL to NYMOX to PATENT RIGHTS listed in Appendix E, NYMOX
shall pay PATENT COSTS as set forth in paragraph 5.1.
2.3 (a) The grants paid by NYMOX pursuant to paragraphs
2.2(a), 2.2(b) or 2.4(c) shall be used to support the Total Direct Costs
("TDC"), as defined by the U.S. Department of Health and Human Services
("DHHS"), of SPONSORED RESEARCH, in accordance with the budgets that shall
be supplied to NYMOX by PRINCIPAL INVESTIGATORS and to pay all indirect
costs ("Indirect Costs") attendant to such TDC. The budgets shall be
adjusted as necessary to allow for payment of full Indirect Costs. The
Indirect costs shall be calculated as the product of the Modified Total
Direct Costs ("MTDC"), as defined by DHHS, of SPONSORED RESEARCH and the
GENERAL's research Indirect Cost Rate in effect at the time the attendant
MTDC are incurred. The Indirect Cost Rate shall be the Hospital Research
Rate on MTDC that is negotiated annually by GENERAL with the DHHS. In no
event shall any such adjustment require NYMOX to pay funds in excess of
those specified in paragraph 2.2 or which have been agreed to under
paragraph 2.4(c).
(b) If the research grants which NYMOX is obligated to pay
GENERAL during any AGREEMENT YEAR exceed the sum of the actual TDC of the
SPONSORED RESEARCH conducted during that AGREEMENT YEAR, and the total
Indirect Costs during that AGREEMENT YEAR, the excess shall be applied to
SPONSORED RESEARCH in a future AGREEMENT YEAR. Any interest earned by
GENERAL on funds paid by NYMOX prior to being expended shall belong to
GENERAL.
2.4(a) Each INVESTIGATOR may conduct research outside the FIELD
OF RESEARCH. INVESTIGATORS shall be free to seek funding for such research
from any source including a commercial sponsor other than NYMOX.
(b) INVESTIGATORS shall be free at any time to seek funding
for any research in the FIELD OF RESEARCH, including additional funding
for SPONSORED RESEARCH, from any state or federal agency, private or
public foundation except foundations owned or operated by a commercial
entity other than NYMOX, provided that the terms and conditions of the
funding agreement are not in conflict with the terms and conditions of
this Agreement including but not limited to NYMOX's rights in and to
SPONSORED RESEARCH.
(c) At any time during the term of this Agreement either
party may propose in writing additional research in the FIELD OF RESEARCH
not previously described in any RESEARCH PROPOSAL appended hereto as
Appendix A. Each such proposal shall include a description of the
additional research proposed and a budget of the costs to be funded by
NYMOX and a schedule of payment of such costs. Unless the parties shall
otherwise agree in writing, negotiations between them over any such
proposal shall not extend beyond the sixtieth (60) day next following the
date when the proposal shall have first been so made, and whenever such
negotiations shall end without agreement between the parties to proceed
with the proposed research, the party proposing the additional research
may go ahead without the other party and seek funding from any other
sponsor including but not limited to a commercial sponsor for such
proposal as set forth in subparagraph (d). When such proposal is accepted
by the GENERAL and NYMOX, it shall be appended hereto as a RESEARCH
PROPOSAL and shall be subject to the terms and conditions of this
Agreement unless otherwise specified, and the SPONSORED RESEARCH described
therein shall commence and budgeted amounts shall be paid as set forth in
the proposal or as otherwise agreed by the parties in writing. In no event
shall any additional research be added to SPONSORED RESEARCH nor shall the
direction of SPONSORED RESEARCH be altered without the concurrence of the
Director, Office of Technology Affairs of GENERAL.
(d) An INVESTIGATOR may not seek funding from another
commercial sponsor for an additional research proposal in the FIELD OF
RESEARCH unless and until such proposal has been submitted to NYMOX in
accordance with the foregoing subparagraph (c) and the parties have failed
to agree in writing to append such proposal hereto as a RESEARCH PROPOSAL
within the stipulated sixty (60) days. In the event of such failure to
agree an INVESTIGATOR shall be free to seek and accept funding from
another commercial sponsor for such research proposal, provided, that the
subject matter of the proposal is not so closely related scientifically to
SPONSORED RESEARCH that sponsorship of such proposal by such other
commercial sponsor (i) would in the opinion of GENERAL's Trustees'
Committee on Industrial Relations and Intellectual Property after
consultation with NYMOX create a conflict of interest for GENERAL or any
INVESTIGATOR performing SPONSORED RESEARCH or (ii) would result in an
agreement which is prohibited by paragraph 6.7 of this Agreement or (iii)
would conflict with the terms and conditions of this Agreement. A
"conflict of interest" for the purposes of this paragraph 2.4 means that
the sponsorship of such proposal by such other commercial entity is likely
to result in a product for the other commercial sponsor competitive with a
PRODUCT likely to result from the SPONSORED RESEARCH. In the event that
GENERAL's Trustees' Committee on Industrial Relations and Intellectual
Property is of the opinion that there is no "conflict of interest," NYMOX
shall be notified promptly in writing of such opinion. If NYMOX disagrees
with such opinion, NYMOX shall have the right to have the existence of a
"conflict of interest" determined by alternative dispute resolution
pursuant to paragraph 11.3(b) by submitting such issue to alternative
dispute resolution within thirty (30) days of receipt of such notice.
INVESTIGATORS shall not be free to seek such funding until the later of
the expiration of such thirty (30) day period, or if an alternative
dispute resolution is initiated, a determination by alternative dispute
resolution that there is no "conflict of interest."
3. TRANSMISSION OF AND RIGHTS TO USE GENERAL
MATERIALS AND NYMOX MATERIALS
3.1 GENERAL and PRINCIPAL INVESTIGATORS shall not distribute
NYMOX MATERIALS to any one other than INVESTIGATORS or use them for any
purpose other than SPONSORED RESEARCH without the prior written approval
of NYMOX.
3.2 During the life of this Agreement GENERAL agrees not to
grant to any third party commercial or for-profit entity the right to use
any GENERAL MATERIAL in the LICENSE FIELD without NYMOX's written consent
except where such GENERAL MATERIAL or its manufacture or its use is
claimed in a PATENT RIGHT (i) to which NYMOX fails to exercise an option
for a license pursuant to paragraph 6.1, or (ii) to which NYMOX's license
rights have been terminated, or (iii) which is licensed non-exclusively in
the LICENSE FIELD hereunder, or (iv) which is licensed co-exclusively in
the LICENSE FIELD hereunder, provided that in the case of such co-
exclusively licensed PATENT RIGHT, GENERAL shall have the right to grant
the right to use such GENERAL MATERIAL only to the party to which such
PATENT RIGHT is coexclusively licensed.
3.3 To the extent allowed by law and the requisite informed
consent of any person whose tissue contributes substantially to any
GENERAL MATERIALS, PRINCIPAL INVESTIGATORS promptly, upon NYMOX's request,
shall provide NYMOX with an amount of such GENERAL MATERIAL specified by
NYMOX and reasonably needed for the purposes of this Agreement including
those specified in paragraph 3.4 but in no event shall PRINCIPAL
INVESTIGATORS be obligated to provide NYMOX such GENERAL MATERIAL in an
amount that would interfere with PRINCIPAL INVESTIGATORS' ability to
conduct SPONSORED RESEARCH.
3.4 NYMOX shall have the right to use GENERAL MATERIALS
provided to it for (i) any commercial purposes solely in the LICENSE FIELD
including but not limited to the development, manufacture, sale and use of
any PRODUCT or practice of any PROCESS; (ii) for research and development
purposes in the FIELD OF RESEARCH so long as such uses that may lead to
publications are discussed with the PRINCIPAL INVESTIGATORS under whose
direction the GENERAL MATERIALS are produced prior to the use of the
transferred GENERAL MATERIALS for such purposes and the INVESTIGATOR who
produces the GENERAL MATERIALS is given the credit and recognition
customary for academic scientific publication by acknowledgment or co-
authorship as appropriate; and (iii) transfers to third parties, provided,
however, that in the case of transfer to third parties NYMOX has obtained
the consent of the PRINCIPAL INVESTIGATORS under whose direction the
GENERAL MATERIALS are produced for the following cases: (a) in the case of
GENERAL MATERIALS that have not been described by an INVESTIGATOR in a
journal that requires dissemination of the described materials as a
condition of publication, and which are being transferred to any party
allowed to publish the results of research performed using the described
materials, prior to the transfer, and (b) in all cases, prior to
depositing any GENERAL MATERIALS in any depository in support of any
patent application.
3.5 GENERAL MATERIALS provided to NYMOX and NYMOX MATERIALS
provided to INVESTIGATORS shall be accompanied by a copy of the Material
Transfer Letters set forth in Appendix B.
3.6 (a) During the period SPONSORED RESEARCH is being
performed hereunder, GENERAL and PRINCIPAL INVESTIGATORS shall not,
without NYMOX's prior written approval, distribute or knowingly allow to
be distributed GENERAL MATERIALS to for-profit entities except for use
outside the FIELD OF RESEARCH and LICENSE FIELD or to for-profit non-
exclusive licensees or co-exclusive licensees in the LICENSE FIELD or
persons known to be employed thereby or consulting or performing research
therefor in the FIELD OF RESEARCH unless, (I) a description of the GENERAL
MATERIAL is published in a journal that requires dissemination of the
described materials as a condition for publication, or (2) GENERAL and
NYMOX have mutually agreed not to seek PATENT RIGHTS claiming such GENERAL
MATERIAL or its manufacture or use. Under the circumstances described in
(1) or (2) of this paragraph 3.6, GENERAL and PRINCIPAL INVESTIGATORS
shall have the right to distribute such GENERAL MATERIAL, only to:
(i) scientists who agree in writing not to transfer such
GENERAL MATERIALS to any other person or entity or to use such
GENERAL MATERIALS for commercial purposes or for research for
commercial purposes; or
(ii) third persons solely for the purpose of obtaining
chemical, physical, or biological analysis or characterization
of such GENERAL MATERIALS, provided that such persons agree in
writing not to transfer or grant access to such GENERAL
MATERIALS or any non-public information regarding such GENERAL
MATERIALS to any other person or entity and to use such GENERAL
MATERIALS only for the purpose of the agreed upon analysis or
characterization and not to disclose such analysis or
characterization to any third party.
(b) During the period SPONSORED RESEARCH is being performed
hereunder, GENERAL and PRINCIPAL INVESTIGATORS shall have the right to
transfer GENERAL MATERIALS to not-for-profit entities or persons known to
be affiliated therewith provided that such entities or persons agree in
writing not to (i) transfer such GENERAL MATERIALS to any other person or
entity, (ii) use such GENERAL MATERIALS for commercial purposes, and (iii)
sequence or clone any genetic material or sequence in such GENERAL
MATERIALS or products thereof.
(c) In the event that a PRINCIPAL INVESTIGATOR is no longer
available to perform SPONSORED RESEARCH at GENERAL but continues to be
employed by a not-for-profit entity, it is understood that at said former
PRINCIPAL INVESTIGATOR's request GENERAL shall make available to said
former PRINCIPAL INVESTIGATOR, GENERAL MATERIALS, provided that in the
event that said former PRINCIPAL INVESTIGATOR is replaced by a new
PRINCIPAL INVESTIGATOR pursuant to paragraph 10.2, the amounts of such
GENERAL MATERIAL shall not interfere with the ability of said new
PRINCIPAL INVESTIGATOR to conduct SPONSORED RESEARCH at GENERAL, and
further provided that said former PRINCIPAL INVESTIGATOR agrees in writing
(i) not to use said GENERAL MATERIALS for commercial purposes or in
research sponsored by any for-profit entity and (ii) not to transfer said
GENERAL MATERIALS to any third party except under the same conditions set
forth in paragraphs 3.6(a) and 3.6(b) hereof.
(d) Prior to any such distribution of any such GENERAL
MATERIALS by reason of the conditions described in subparagraphs (a), (b)
or (c) above, GENERAL and NYMOX shall use reasonable efforts to consider
the patentability of such GENERAL MATERIALS and cooperate to file, where
appropriate, PATENT RIGHTS protecting such GENERAL MATERIALS prior to
their distribution.
4. CONFIDENTIALITY AND PUBLICATION RIGHTS
4.1 In the event that NYMOX discloses to any GENERAL
personnel any information which relates to the SPONSORED RESEARCH that
NYMOX considers confidential, the rights and obligations of the parties
with respect to such information shall be governed by the terms and
conditions set forth in Appendix C.
4.2 Recognizing GENERAL's desire to publish previously
unpublished RESEARCH INFORMATION and NYMOX's desire to develop the results
of SPONSORED RESEARCH for the earliest introduction to the public:
(a) GENERAL agrees to submit to NYMOX an early draft of each
document as follows:
(i) Each manuscript first disclosing RESEARCH INFORMATION or
an INVENTION or describing a GENERAL MATERIAL at least thirty
(30) days prior to its submission for publication; and
(ii) Each abstract disclosing RESEARCH INFORMATION or an
INVENTION or a GENERAL MATERIAL at least seven (7) days prior to
its submission for publication.
NYMOX shall have the right to advise GENERAL as to the patentability of
any INVENTIONS disclosed therein and of NYMOX's desire to have PATENT
RIGHTS claiming such INVENTIONS filed. GENERAL shall use reasonable
efforts to carry out such advice in accordance with the terms of this
Agreement. At the end of such thirty (30) day or seven (7) day period,
GENERAL shall have the right, at its discretion, to submit such manuscript
or abstract for publication.
(b) Nothing in this Agreement shall be construed to prohibit
or limit in any way:
(i) The filing by GENERAL of any report required by any
public authority pertaining to SPONSORED RESEARCH;
(ii) The non-public disclosure and discussion of RESEARCH
INFORMATION between the INVESTIGATORS and their academic
colleagues. GENERAL shall advise the INVESTIGATORS that when
making such non-public disclosures, consideration should be
given to GENERAL's and NYMOX's interest in obtaining the
benefits of worldwide patent coverage of any INVENTIONS included
in RESEARCH INFORMATION.
5. PATENTS
5.1 Each INVESTIGATOR who during the course of SPONSORED
RESEARCH shall make an INVENTION, solely or jointly, ("GENERAL INVENTOR")
shall promptly report such INVENTION to GENERAL. Each GENERAL INVENTOR
shall assign all of his rights, title and interest in an INVENTION to
GENERAL. Each employee of NYMOX who makes an INVENTION jointly with an
INVESTIGATOR, shall report such INVENTION to NYMOX and shall assign all
his rights, title and interest in such INVENTION to NYMOX. INVENTIONS made
jointly by the INVESTIGATOR and NYMOX employees shall be jointly owned.
NYMOX shall report such INVENTION in writing to GENERAL's Office of
Technology Affairs. GENERAL and NYMOX agree that for each PATENT RIGHT
jointly assigned to GENERAL and NYMOX, NYMOX and GENERAL each own a one-
half undivided interest in such PATENT RIGHT in each country in which it
is filed and GENERAL'S interest therein is subject to the license rights
granted to NYMOX under this Agreement. GENERAL and NYMOX shall each be
allowed to sell, license or otherwise transfer its rights to such PATENT
RIGHT without the consent of the other; however, GENERAL's rights in this
respect are subject to the terms and conditions of this Agreement and
NYMOX's licensing rights thereto.
Each party shall promptly advise the other in writing of each
INVENTION disclosed to it. Representatives of GENERAL and NYMOX shall then
discuss whether a patent application or applications pertaining to such
INVENTION should be filed and in which countries. If both parties mutually
agree that patent application(s) should be filed, applications assigned
solely to GENERAL shall be filed by GENERAL, applications assigned solely
to NYMOX shall be filed by NYMOX and jointly assigned applications shall
be filed as mutually agreed upon by the parties. The titles, serial
numbers and other identifying data of any patent applications claiming an
INVENTION filed after the EFFECTIVE DATE by mutual agreement of GENERAL
and NYMOX shall be listed in Appendix D and shall become PATENT RIGHTS.
Reasonable and customary patent costs incurred by GENERAL for
PATENT RIGHTS filed by mutual agreement ("PATENT COSTS") shall be
reimbursed in full by NYMOX upon NYMOX's receipt of GENERAL's notice of
payment of such PATENT COSTS, except as provided for below. Such PATENT
COSTS shall include but not be limited to the costs of preparing, filing,
prosecuting (including mutually agreed upon interferences or oppositions),
issuing or maintaining and working the PATENT RIGHTS. For PATENT COSTS not
reimbursed by NYMOX within thirty (30) days after receipt of GENERAL's
notice of payment of such costs, NYMOX shall pay GENERAL interest at the
rate of one and one half (1.5) percent per month compounded each month
that they remain unpaid. For PATENT RIGHTS in which other commercial
entities have acquired license rights, NYMOX shall reimburse the GENERAL
only for the same share of such costs as reimbursed by each of the other
commercial entities, but in no event shall NYMOX be required to reimburse
GENERAL for more than 50% of the PATENT COSTS for such PATENT RIGHTS.
It is understood that any PATENT RIGHTS listed in Appendix E on
the EFFECTIVE DATE shall be deemed to be "PATENT RIGHTS filed by mutual
agreement," and that existing PATENT COSTS in the amount of Thirteen
Thousand Eight Hundred Seventy Dollars and Sixty-Three Cents ($13,870.63)
and all PATENT COSTS incurred by GENERAL after the EFFECTIVE DATE shall be
reimbursed in full by NYMOX, except for PATENT RIGHTS in which other
commercial entities have or acquire license rights in which case NYMOX
shall reimburse GENERAL only for the same share of such costs as
reimbursed by each of the other commercial entities, but in no event shall
NYMOX be required to reimburse GENERAL for more than 50% of the PATENT
COSTS for such PATENT RIGHTS.
In the event NYMOX is not interested in having PATENT RIGHTS
filed with respect to a particular INVENTION made solely by GENERAL
INVENTOR(S), NYMOX shall advise GENERAL of such fact within ninety (90)
days from the date on which the INVENTION was disclosed to NYMOX by
GENERAL or sooner as specified by GENERAL if necessary to avoid the loss
of PATENT RIGHTS. GENERAL, at its own expense may then file and prosecute
such patent application in any country where NYMOX elects not to file, and
such patent applications and patents shall not be included with the rights
licensed to NYMOX pursuant to paragraphs 6.1, 6.2 and 6.3 of this
Agreement and GENERAL shall be free to license such patent application or
patent to any other party.
In the event that GENERAL does not wish to file a patent
application with respect to a particular INVENTION, or does not wish to
file patent applications with respect to specific countries, it shall
first without delay notify NYMOX, and NYMOX shall be free, where not
contrary to United States law, to file at its expense patent applications
in the name of GENERAL. If necessary, GENERAL shall render NYMOX, at
NYMOX's expense, all necessary assistance in order to facilitate such
filing. Any such application shall be considered a PATENT RIGHT for all
purposes of this Agreement.
5.2 With respect to any PATENT RIGHT filed by mutual
agreement of the parties, 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 NYMOX sufficiently prior to the filing of such application,
response or request to allow for review and comment by NYMOX.
6. LICENSES
6.1 As to each PATENT RIGHT assigned in whole or in part to
GENERAL or in which GENERAL has a licensable right, GENERAL shall, upon
written request submitted by NYMOX within the eighteen (18) months next
following the U.S. filing date of such PATENT RIGHT, grant to NYMOX and
any AFFILIATE of NYMOX designated in writing by NYMOX, a license as
defined in the next succeeding paragraphs 6.2 and 6.3 under GENERAL's
rights; and, in the absence of such request by NYMOX, GENERAL may grant a
license to said PATENT RIGHT to any other person or persons on any terms.
The option to acquire a license hereunder does not apply to any PATENT
RIGHT that NYMOX has advised GENERAL's Office of Technology Affairs in
writing that NYMOX is not interested in having filed, prosecuted or
maintained.
6.2 To the extent not prohibited by the United States
government or by contractual obligations requiring GENERAL to license a
PATENT RIGHT to any other sponsor of research with respect to INVENTIONS
made jointly by a person who is not an INVESTIGATOR but who is a co-
inventor of a PATENT RIGHT with an INVESTIGATOR, at the written request of
NYMOX or any AFFILIATE of NYMOX in accordance with the foregoing paragraph
6.1, GENERAL hereby grants to NYMOX:
(a) an exclusive, worldwide, royalty-bearing license under
PATENT RIGHTS in the LICENSE FIELD (i) to make, have made, use, sell and
have sold PRODUCTS and (ii) to use PROCESS; and
(b) the right to grant sublicenses in the LICENSE FIELD to
any PATENT RIGHTS licensed exclusively hereunder or co-exclusively to
NYMOX pursuant to paragraph 6.3 provided that any SUBLICENSEE agrees to be
bound by the terms and conditions of this Agreement applicable to
SUBLICENSEES. If NYMOX has only a non-exclusive license to any PATENT
RIGHTS, GENERAL will, upon request of NYMOX, grant NYMOX the right to
grant sublicenses thereunder unless it has a reasonable basis for refusing
such grant.
6.3 To the extent and only to the extent that GENERAL is
prohibited from granting to NYMOX an exclusive license to any PATENT RIGHT
for the reasons set forth in paragraph 6.2, the license granted to NYMOX
under paragraph 6.2 shall be co-exclusive with such other sponsor where
exclusivity is prohibited by GENERAL's contractual obligations to such
other sponsor and non-exclusive where exclusivity is prohibited by the
United States government.
6.4 The above licenses to sell any PRODUCT includes the right
to grant to the purchaser of such PRODUCT from NYMOX its AFFILIATES, and
SUBLICENSEES the right to use such purchased PRODUCT in a method coming
within the scope of PATENT RIGHTS.
6.5 All licenses pursuant to paragraphs 6.2, 6.3 and 6.4
above to INVENTIONS conceived or first actually reduced to practice during
the course of research funded by a U.S. federal agency are subject to the
rights, conditions and limitations imposed by U.S. law. GENERAL agrees to
use its best efforts to diligently comply with the requirements of such
laws and applicable regulations. The words "exclusive license" as used
herein shall mean exclusive except for the royalty-free non-exclusive
license granted to the U.S. government by GENERAL pursuant to 35 USC
Section 202 (c)(4) for any PATENT RIGHT claiming an INVENTION subject to
35 USC Section 201 and the rights of GENERAL and INVESTIGATORS as set
forth in paragraph 6.6.
6.6 All licenses granted pursuant to paragraphs 6.2, 6.3 and
6.4 above are subject to GENERAL's and INVESTIGATOR's rights to use for
its internal research and patient care purposes any INVENTION claimed in
the licensed PATENT RIGHT, however, except as set forth in paragraph
2.2(c), such rights do not obligate NYMOX to supply PRODUCT or NYMOX
MATERIALS for such use.
6.7 GENERAL represents that on the date this agreement is
signed by GENERAL, that to the best of its knowledge (i) there is no
agreement in effect on the EFFECTIVE DATE between GENERAL or PRINCIPAL
INVESTIGATORS and any party (not including the United States Government)
which prohibits GENERAL from granting to NYMOX the exclusive licenses set
forth in paragraphs 6.2 and 6.3 and (ii) that all INVESTIGATORS are
obligated to assign all right, title and interest in INVENTIONS and PATENT
RIGHTS to GENERAL.
(a) Notwithstanding anything else to the contrary, GENERAL
agrees during the period SPONSORED RESEARCH is being performed not to
enter into an agreement with any third party commercial entity to fund
PRINCIPAL INVESTIGATORS or any INVESTIGATOR to conduct SPONSORED RESEARCH.
(b) GENERAL agrees to use reasonable care not to enter into
an agreement with a third party to acquire materials for use in SPONSORED
RESEARCH under terms that will prevent GENERAL from granting NYMOX sole
and exclusive rights to PATENT RIGHTS.
6.8 NYMOX, its AFFILIATES and SUBLICENSEES shall use
reasonable efforts to develop a PRODUCT as defined by paragraph 1.14(a) or
1.14(b)(i) selected by NYMOX for commercial sales and distribution or to
use PROCESSES for commercial purposes throughout the world. Prior to the
end of three (3) years from the date each PATENT RIGHT is first filed in
the United states or eighteen (18) months from the date NYMOX is granted a
license to such PATENT RIGHT pursuant to paragraph 6.1 and 6.2, whichever
shall occur first, GENERAL and NYMOX shall meet to designate reasonable
objectives and the time periods in which such objectives are to be met by
NYMOX, its AFFILIATES or SUBLICENSEES with respect to a PRODUCT selected
by NYMOX. By way of example, such objectives may include commencement of
animal toxicity studies, submission of a Notice of Claimed Investigational
Exemption for a New Drug with the U.S. Food and Drug Administration (the
"FDA"), commencement and diligent performance of human studies, and
submission of a Product License Application (a "PLA") with the FDA. If
such meeting occurs prior to the third anniversary of the first U.S.
filing date of such PATENT RIGHT and the parties agree that such
objectives cannot be designated at that time, the period to designate such
objectives may be extended for up to one (1) year. NYMOX shall exert
reasonable efforts to obtain such objectives. In the event NYMOX
subsequently indicates in writing to GENERAL that such objectives cannot
be met or fails to meet such objectives, NYMOX and GENERAL shall enter
into good faith negotiations to reconsider such objectives. In the event
that the parties cannot agree to the initial objectives by the fifth
anniversary or to modify objectives within ninety (90) days after
beginning good faith negotiations, the matter shall be submitted to
alternative dispute resolution pursuant to paragraph 11.3 to determine the
objectives and the time period therefor which should be met pursuant to
this paragraph 6.8. The alternative dispute resolver in setting and
determining the objectives shall consider the state of the technology; the
efforts exerted by NYMOX; the business circumstances of NYMOX, including
finances and manpower available to NYMOX; and technical and regulatory
problems. Thereafter, NYMOX shall exert reasonable efforts to achieve
such objectives.
In the event that NYMOX indicates that it cannot meet the
objectives whether set by the parties or by alternative dispute resolution
because of technological or regulatory problems, GENERAL shall not
unreasonably deny an extension of the objectives.
If NYMOX (i) fails to meet the objectives established by
agreement of the parties and fails to negotiate reconsideration of such
objectives or to request alternative dispute resolution or (ii) fails to
meet objectives established by alternative dispute resolution, GENERAL
shall have the right to terminate the licenses to such PATENT RIGHT
granted hereunder or convert such licensees to non-exclusive licenses by
providing to NYMOX sixty (60) days prior written notice. Prior to the
expiration of such sixty (60) day period, NYMOX may submit such action to
alternative dispute resolution to determine whether or not NYMOX has
exerted reasonable efforts pursuant to this paragraph 6.8, and once such
action has been submitted to alternative dispute resolution the licenses
and rights may only be modified or canceled in the event of a decision in
the alternative dispute resolution that NYMOX has not exerted such
reasonable efforts. If the alternative dispute resolver decides that
NYMOX has exerted reasonable efforts, the alternative dispute resolver
shall establish new objectives.
NYMOX shall ensure that, for any PRODUCT or PROCESS being
developed or commercialized by an AFFILIATE or SUBLICENSEE, such AFFILIATE
or SUBLICENSEE shall assume the obligations imposed on NYMOX under this
paragraph 6.8.
6.9 At the end of each AGREEMENT YEAR, after objectives are
established, NYMOX shall report in writing to the GENERAL on the progress
made toward the objectives established pursuant to Paragraph 6.8.
6.10 In the event NYMOX or any AFFILIATE or SUBLICENSEE
intends to sell any PRODUCT whose manufacture, use or sale is not subject
to one or more VALID CLAIMS of any PATENT RIGHT licensed to NYMOX, NYMOX
will notify the Director, Office of Technology Affairs of GENERAL in
writing of such intent not later than sixty (60) days prior to its
distribution of such PRODUCT, and shall discuss with GENERAL and
renegotiate as necessary a "Competitive" royalty as provided in paragraph
7.1(d).
7. ROYALTIES
7.1 On all sales of PRODUCTS anywhere in the world by NYMOX,
its AFFILIATES or SUBLICENSEES, NYMOX shall pay GENERAL royalties in
accordance with the following schedule subject to the provisions of
paragraph 7.1(d), such undertaking and schedule having been agreed to for
the purpose of reflecting and advancing the mutual convenience of the
parties.
(a) For each PRODUCT sold by NYMOX or its AFFILIATES or
SUBLICENSEES where such PRODUCT, its manufacture or use shall be subject
to a VALID CLAIM of any PATENT RIGHT licensed exclusively to NYMOX, the
royalty shall be four percent (4%) of the NET SALES PRICE; and
(b) For each PRODUCT sold by NYMOX or its AFFILIATES or
SUBLICENSEES where such PRODUCT, its manufacture or use shall be subject
to a VALID CLAIM of any PATENT RIGHT licensed non-exclusively to NYMOX the
royalty shall be one-half of the rate specified for such PRODUCT in (a)
above; and
(c) During each of the seven (7) years next following the
FIRST COMMERCIAL SALE anywhere in the world by NYMOX, its AFFILIATES, or
SUBLICENSEES of each PRODUCT whose manufacture, use or sale shall employ
or incorporate any GENERAL MATERIAL, RESEARCH INFORMATION or NYMOX
MATERIAL where such GENERAL MATERIAL, RESEARCH INFORMATION or NYMOX
MATERIAL is not subject to one or more VALID CLAIMS of any PATENT RIGHT in
the country in which such PRODUCT is manufactured, used or sold, NYMOX
shall pay GENERAL a royalty on the sale of such PRODUCT of one (l) percent
of the NET SALES PRICE of such PRODUCT; and
(d) Notwithstanding paragraphs 7.1(a), (b) and (c) and 7.2
below, if at the time NYMOX requests in writing a license pursuant to
paragraph 6.1 or notifies GENERAL in writing of its intent to distribute a
PRODUCT whose manufacture, use or sale is not subject to one or more VALID
CLAIMS of any PATENT RIGHT licensed to NYMOX pursuant to paragraph 6.10,
no royalty as specified in this paragraph 7.1 is "Competitive" as
hereinafter defined, GENERAL shall grant to NYMOX a license at the lowest
royalty rate that is competitive at the time GENERAL receives NYMOX's
written request. A royalty rate shall be regarded as "Competitive" if it
is within the range of royalty rates that GENERAL would charge in an arms
length transaction with a licensee which was not and had not been a
sponsor of research at GENERAL, taking into account the value of the
licensed technology at the time of GENERAL's receipt of a written request
for a license or notice of intent to distribute a PRODUCT by NYMOX.
7.2 If NYMOX is required to pay a royalty or royalties to any
third party to practice PATENT RIGHTS licensed hereunder, NYMOX may reduce
the amount paid to GENERAL hereunder by one-half of the amount paid to
such third party or parties, provided, however, that the aggregate of any
reduction in royalties under this paragraph 7.2 shall not exceed fifty
(50) percent of any royalty payment otherwise due GENERAL under paragraph
7.1.
7.3 If and whenever GENERAL shall as permitted herein license
any PATENT RIGHT to another licensee for the purpose of making, using or
selling PRODUCTS in the FIELD, at a royalty or royalties more favorable to
such licensee than herein provided for NYMOX, GENERAL shall give written
notice thereof to NYMOX and as of the effective date of such more
favorable royalty or royalties, NYMOX's obligation hereunder to pay
royalty or royalties to GENERAL shall be revised to the more favorable
rate.
7.4 In the event that the royalty paid to GENERAL is a
significant factor in the return realized by NYMOX so as to diminish
NYMOX's capability to respond to competitive pressures in the market,
GENERAL agrees to consider a reasonable reduction in the royalty paid to
GENERAL as to each such PRODUCT for the period during which such market
condition exists. Factors determining the size of the reduction will
include profit margin on PRODUCT and on analogous products, prices of
competitive products, total prior sales by NYMOX, and NYMOX's expenditures
in PRODUCT development.
7.5 NYMOX shall keep, and shall cause each of its AFFILIATES
and SUBLICENSEES, if any, to keep, full and accurate books of account
containing all particulars that may be necessary for the purpose of
calculating all royalties payable to the GENERAL. Such books of account
shall be kept at their principal place of business and, with all necessary
supporting data shall, during all reasonable times for the three (3) years
next following the end of the calendar year to which each shall pertain,
be open for inspection at reasonable times by GENERAL or its designee at
GENERAL's expense for the sole purpose of verifying royalty statements or
compliance with this Agreement.
7.6 With each semiannual payment, NYMOX shall deliver to
GENERAL a full and accurate accounting to include at least the following
information:
(a) Quantity of each PRODUCT sold or leased (by country)
by NYMOX, and its AFFILIATES or SUBLICENSEES;
(b) Total receipts for each PRODUCT (by country);
(c) Quantities of each PRODUCT (i) used by NYMOX and its
AFFILIATES or SUBLICENSEES unless such PRODUCT is used for the purposes
excluded by paragraph 1.11(c) or (ii) sold to the United States Government
for which the government requires a reduction in the NET SALES PRICE as a
result of its license under 35 USC Sec. 204.
(d) Names and addresses of all SUBLICENSEES of NYMOX;
and
(e) Total royalties payable to GENERAL.
7.7 In each year the amount of royalty due shall be
calculated semiannually as of June 30 and December 31 ("ACCOUNTING
PERIOD") and shall be paid semiannually within the sixty (60) days next
following such date, every such payment shall be supported by the
accounting prescribed in paragraph 7.5 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 business day closest to the last day of the applicable ACCOUNTING
PERIOD.
7.8 Only one royalty calculated at the highest applicable
royalty rate shall be due and payable to GENERAL by NYMOX for any PRODUCT
subject to royalty under this Agreement regardless of the number of PATENT
RIGHTS covering such PRODUCT, its manufacture and use.
7.9 If the transfer of or the conversion into United States
Dollar Equivalent of any such remittance in any such instance is not
lawful or possible, the payment of such part of the royalties as is
necessary shall be made by the deposit thereof, in the currency of the
country where the sale was made on which the royalty was based, to the
credit and account of GENERAL or its nominee in any commercial bank or
trust company located in that country, prompt notice of which shall be
given to NYMOX.
7.10 Any tax required to be withheld by NYMOX under the laws
of any foreign country for the account of GENERAL, shall be promptly paid
by NYMOX for and on behalf of GENERAL to the appropriate governmental
authority, and NYMOX shall use its best efforts to furnish GENERAL with
proof of payment of such tax. Any such tax actually paid on GENERAL's
behalf shall be deducted from royalty payments due GENERAL.
7.11 The royalty payments due under the Agreement shall, if
overdue, bear interest until payment at a per annum rate equal to one
percent (1%) above the prime rate in effect at the Bank of Boston on the
due date, not to exceed the maximum permitted by law. The payments of such
interest shall not preclude GENERAL from exercising any other rights it
may have as a consequence of the lateness of any royalty payment.
8. INFRINGEMENT
8.1 GENERAL will protect its PATENT RIGHTS from infringement
and prosecute infringers when, in its sole judgment, such action may be
reasonably necessary, proper and justified.
8.2 If NYMOX shall have supplied GENERAL with written
evidence demonstrating to GENERAL's reasonable satisfaction prima facie
infringement of a claim of a PATENT RIGHT by a third party, NYMOX may by
notice request GENERAL to take steps to protect the PATENT RIGHT, and
unless GENERAL shall within three (3) months of the receipt of such notice
either (i) cause infringement to terminate or (ii) initiate legal
proceedings against the infringer, NYMOX may, upon notice to GENERAL,
initiate legal proceedings against the infiinger at NYMOX's expense and in
GENERAL's name if so required by law. NYMOX's reasonable and customary
expenses for such legal proceedings shall be fully creditable against
royalties owed to GENERAL hereunder, provided that in no event shall any
royalty payment to GENERAL be reduced by more than 50%.
8.3 In the event one party shall initiate or carry on legal
proceedings to enforce any PATENT RIGHT against any alleged infringer, and
the other party shall fully cooperate with and supply all assistance
reasonably requested by the party initiating or carrying on such
proceedings. The party which institutes any suit to protect or enforce a
PATENT RIGHT shall have sole control of that suit and shall bear the
reasonable expenses (excluding legal fees) incurred by said other party in
providing such assistance and cooperation as is requested pursuant to this
paragraph. The party initiating or carrying on such legal proceedings
shall keep the other party informed of the progress of such proceedings
and said other party shall be entitled to counsel in such proceedings but
at its own expense. Any award paid by third parties as the result of such
proceedings (whether by way of settlement or otherwise) shall first be
applied to reimbursement of the unreimbursed legal fees and expenses
incurred by either party and then to the payment to GENES of the amount of
royalties which were applied to the expense of legal proceedings in
accordance with paragraph 8.2 above and then the remainder shall be
divided between the parties as follows;
(a) (i) If the amount is lost profits, NYMOX shall receive an
amount equal to the damages the court determines NYMOX has suffered as a
result of the infringement less the amount of any royalties that would
have been due GENERAL on sales of PRODUCT lost by NYMOX as a result of the
infringement had NYMOX made such sales; and
(ii) GENERAL shall receive an amount equal to the royalties it
would have
received if such sales had been made by NYMOX; or
(b) As to awards other than lost profits, seventy (70)
percent to the party initiating such proceedings and thirty (30) percent
to the other party.
8.4 For the purpose of the proceedings referred to in this
paragraph 8, GENERAL and NYMOX shall permit the use of their names and
shall execute such documents and carry out such other acts as may be
necessary.
9. INDEMNIFICATION AND INSURANCE
9.1 (a) NYMOX shall indemnify, defend and hold harmless
GENERAL and its trustees, officers, medical and professional staff
employees, and agents and their respective successors, heirs and assigns
(the "Indemnitees"), against any liability, damage, loss or expense
(including reasonable attorneys' fees and expenses of litigation) incurred
by or imposed upon the Indemnitees or any one of them in connection with
any claims, suits, actions, demands or judgments arising out of any theory
of product liability (including, but not limited to, actions in the form
of tort warranty, or strict liability) concerning any PRODUCT, PROCESS or
service made, used or sold pursuant to any right or license granted under
this Agreement or (ii) Arising out of any other activities to be carried
out pursuant to this Agreement.
(b) NYMOX's indemnification under (a) above shall not apply
to any liability, damage, loss or expense to the extent that it is
attributable to the negligent activities, reckless misconduct or
intentional misconduct of the Indemnitees.
(c) NYMOX agrees, at its own expense, to provide attorneys
reasonably acceptable to GENES to defend against any actions brought or
filed against any party indemnified hereunder with respect to the subject
of indemnity contained herein, whether or not such actions are rightfully
brought.
9.2 (a) Beginning at the time any such PRODUCT, PROCESS or
service is being commercially distributed or sold (other than for the
purpose of obtaining regulatory approvals) by NYMOX or by a SUBLICENSEE,
AFFILIATE or agent of NYMOX, NYMOX shall at its sole cost and expense,
procure and maintain policies of commercial general liability insurance in
amounts not less than $2,000,000 per incident and $2,000,000 annual
aggregate and naming the Indemnitees as additional insureds. Such
commercial general liability insurance shall provide (i) product liability
coverage and (ii) contractual liability coverage for NYMOX indemnification
under paragraph 9.1 of this Agreement. If NYMOX elects to self-insure all
or part of the limits described above (including deductibles or retentions
which are in excess of $250,000 annual aggregate) such self-insurance
program must be acceptable to the GENERAL and the Risk Management
Foundation of the Harvard Medical Institutions Inc. (RMF). The minimum
amounts of insurance coverage required under this paragraph 9.2 shall not
be construed to create a limit of NYMOX's liability with respect to its
indemnification under paragraph 9.1 of this Agreement.
(b) NYMOX shall provide GENERAL with written evidence of such
insurance upon request of GENERAL. NYMOX shall provide GENERAL with
written notice at least fifteen (15) days prior to the cancellation, non-
renewal or material change in such insurance; if NYMOX does not obtain
replacement insurance providing comparable coverage within such fifteen
(15) day period, GENERAL shall have the right to terminate this Agreement
effective at the end of such fifteen (15) day period without notice or any
additional waiting periods.
(c) NYMOX shall maintain such comprehensive general liability
insurance beyond the expiration or termination of this Agreement during
(i) the period that any PRODUCT, PROCESS, or service, relating to, or
developed pursuant to, this Agreement is being commercially distributed or
sold (other than for the purpose of obtaining regulatory approvals) by
NYMOX or by a SUBLICENSEE, AFFILIATE or agent of NYMOX and (ii) a
reasonable period after the period referred to in (c) (i) above which in
no event shall be less than fifteen (15) years.
10. TERMINATION
10.1 The SPONSORED RESEARCH hereunder shall have an initial
term of three (3) years.
10.2 So long as the PRINCIPAL INVESTIGATORS are available to
direct the SPONSORED RESEARCH at GENERAL, NYMOX may not terminate
SPONSORED RESEARCH except in accordance with paragraph 10.1 or 10.3(a). If
for any reason the PRINCIPAL INVESTIGATORS shall no longer be available at
GENERAL, the parties agree to negotiate in good faith the continuance of
such SPONSORED RESEARCH. However, if a new PRINCIPAL INVESTIGATOR
acceptable to NYMOX cannot be agreed upon, NYMOX may terminate such
SPONSORED RESEARCH except for an obligation to continue for up to six (6)
months beyond notification of the departing PRINCIPAL INVESTIGATOR's
departure, salary support at the pretermination level of all Ph.D. or M.D.
personnel who have been committed to the SPONSORED RESEARCH on half-time
or greater basis, provided GENERAL uses reasonable efforts to reduce such
costs to NYMOX.
10.3 If either party shall materially default in performing
any of its obligations under this Agreement, the nondefaulting party may
give notice of the default to the defaulting party. Unless such default is
corrected within sixty (60) days after such notice, then:
(a) in the event that the default pertains to the obligations
of GENERAL to perform SPONSORED RESEARCH, NYMOX may immediately terminate
in writing its support of SPONSORED RESEARCH;
(b) in the event that the default pertains to the obligations
of NYMOX to support SPONSORED RESEARCH, GENERAL may, in writing,
immediately terminate the SPONSORED RESEARCH and may, in writing,
immediately terminate any unexercised license options to PATENT RIGHTS
(and, once GENERAL has given a notice that NYMOX has defaulted on such
support obligations, NYMOX shall not have the right to exercise any such
options unless and until the default is cured); and,
(c) in the event that the default pertains to the obligations
of NYMOX under Articles 6, 7 or 9 with respect to any licenses granted
hereunder, GENERAL may, in writing, immediately terminate such license.
10.4 NYMOX may at any time terminate any or all licenses
granted pursuant to paragraphs 6.2, 6.3 and 6.4 on a patent by patent
and/or country by country basis upon thirty (30) days prior written
notice.
10.5 Termination of the licenses granted NYMOX in accordance
with paragraphs 6.2, 6.3 and 6.4 shall not relieve NYMOX of the obligation
to pay the GENERAL any royalties due pursuant to paragraphs 7. l or 7.2
for the sale of PRODUCT prior to the effective date of such termination,
or affect the rights of the GENERAL to receive written statements
accounting for royalties payable and to inspect NYMOX's books and records
as provided for herein.
10.6 Unless sooner terminated, GENERAL shall have the right to
terminate the licenses and rights granted to NYMOX in any country under
this Agreement in the event that after the FIRST COMMERCIAL SALE of
PRODUCT in such country there is a continuous two (2) year period in which
no PRODUCT is sold in such country, provided that such sale is not
prevented by force majeure, government regulation or intervention, or
institution of a law suit by a third party.
10.7 Unless otherwise terminated, the royalty bearing licenses
under PATENT RIGHTS granted hereunder will continue on a country by
country basis until the last to expire of PATENT RIGHTS, the claims of
which but for this Agreement would be infringed by the manufacture, use or
sale of PRODUCT in the applicable country, at which time NYMOX shall have
a fully paid up license.
10.8 Upon any termination of any license under this Agreement,
for a period of one (1) year, NYMOX shall be entitled 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 NYMOX pays to GENERAL the royalties applicable to said subsequent
sales in accordance with the same terms and conditions as set forth in
this Agreement.
10.9 In the event that any license granted to NYMOX under this
Agreement is terminated, any sublicense under such license granted prior
to termination of said license shall remain in full force and effect,
provided that:
(i) the SUBLICENSEE is not then in breach of its sublicense
agreement;
(ii) the SUBLICENSEE agrees to be bound to GENERAL as the
licensor under the terms and conditions of this
sublicense agreement, as modified by the provisions of
this paragraph 10.9;
(iii) the SUBLICENSEE, at GENERAL's written request, assumes in
a signed writing the same obligations to GENERAL as those
assumed by NYMOX under Articles 9 and 11 hereof;
(iv) GENERAL shall have the right to receive the greater of
(a) any payments payable to NYMOX under such sublicense
agreement to the extent that they are reasonably and
equitably attributable to such SUBLICENSEE's right under
such sublicense to use and exploit PATENT RIGHTS,
RESEARCH INFORMATION and/or GENERAL MATERIALS, or (b) the
lowest royalty which is within the "Competitive Range" as
defined in paragraph 7.1(d) hereof, at the time GENERAL's
license to NYMOX is terminated;
(v) the SUBLICENSEE agrees to be bound by the due diligence
obligations of NYMOX pursuant to paragraph 6.8 hereof,
(whether set by the parties or by arbitration) in the
field and territory of the sublicense;
(vi) GENERAL has the right to terminate such sublicense upon
fifteen (15) days prior written notice to NYMOX and such
SUBLICENSEE in the event of any material breach by the
obligation to make payments described in clause (iv) of
this paragraph 10.9, unless such breach is cured prior to
the expiration of such fifteen (15) day period, and shall
further have the right to terminate such sublicense in
the event of SUBLICENSEE's failure to meet its due
diligence obligations pursuant to clause (v) hereof;
(vii) GENERAL shall not assume, and shall not be responsible to
such SUBLICENSEE for, any representations, warranties or
obligations of NYMOX to such SUBLICENSEE, other than to
permit such SUBLICENSEE to exercise any rights to PATENT
RIGHTS, RESEARCH INFORMATION and GENERAL MATERIALS that
are granted under such sublicense agreement consistent
with the terms of this Agreement.
10.10 (a) In the event of a termination of SPONSORED RESEARCH
hereunder for any reason, the provisions of Articles 5,6,7,8,9 and 11 and
paragraphs 10.3 through 10.10 and NYMOX's right to use RESEARCH
INFORMATION and GENERAL MATERIALS under paragraph 2.1(b) and (c) shall
survive such termination.
(b) In the event of termination of any license granted
hereunder, NYMOX's right to use GENERAL MATERIALS, the manufacture use or
sale of which is claimed in the PATENT RIGHTS to which NYMOX's license
shall have been terminated, shall be terminated; the obligations of the
parties with respect to SPONSORED RESEARCH shall survive; and all
provisions of this Agreement shall survive with respect to all other
licenses which have not been terminated; and the provisions of paragraphs
10.5, 10.8,10.9 and 10.10 and Articles 9 and 11 shall survive with respect
to the terminated license(s).
11. MISCELLANEOUS
11.1 This Agreement constitutes the entire understanding
between the parties with respect to the subject matter hereof, and
supersedes and replaces all prior agreements, understandings, writings,
and discussions between the parties relating to said subject matter.
11.2 In order to facilitate implementation of this Agreement,
GENERAL and NYMOX are designating the following individuals to act on
their behalf with respect to this Agreement for the matters indicated
below:
(a) with respect to matters concerning the conduct of
SPONSORED RESEARCH, budgets, manuscripts for publication, written
transmittal of RESEARCH INFORMATION and MATERIALS: for GENERAL, PRINCIPAL
INVESTIGATORS; for NYMOX: Sr. Vice President for Research and Development
and Strategic Planning;
(b) with respect to any RESEARCH PROPOSAL submitted pursuant
to paragraph 2.4, the receipt of research payments made pursuant to
paragraph 2.2 or any RESEARCH PROPOSAL appended hereto, all royalty
payments, the form of any Confidentiality Agreement to be signed by an
INVESTIGATOR, the disclosure of any INVENTION or any correspondence
pertaining to any INVENTION or PATENT RIGHT: for GENERAL, the Director,
Office of Technology Affairs; for NYMOX: Sr. Vice President for Research
and Development and Strategic Planning;
(c) any amendment of or waiver under this Agreement, any
written notice or other communication pertaining to the Agreement: for
GENERAL, the Director, Office of Technology Affairs; for NYMOX: Sr. Vice
President for Research and Development and Strategic Planning;
(d) the above designations may be superseded from time to
time by alternative designations made by: for GENERAL, the General
Director; for NYMOX: CEO/President.
Any notice or communication required by the foregoing 11.2(a)-(d) shall be
deemed made if mailed first class postage prepaid to the individuals so
designated, except notices pertaining to breach or termination which shall
be made by prepaid, first class, certified mail, return receipt requested.
11.3(a) This Agreement shall be governed by and construed and
interpreted in accordance with the substantive laws of The Commonwealth of
Massachusetts and the United States of America, regardless of the choice
of law rules of any jurisdiction.
(b) For any and all claims, disputes, or controversies
arising under, out of, or in connection with this Agreement, including any
dispute relating to patent validity or infringement, which the parties
shall be unable to resolve within sixty (60) days, the party raising such
dispute shall promptly advise the other party of such claim, dispute, or
controversy in a writing which describes in reasonable detail the nature
of such dispute. By not later than five (5) business days after the
recipient has received such notice of dispute, each party shall have
selected for itself a representative who shall have the authority to bind
such party and shall additionally have advised the other party in writing
of the name and title of such representative. By not later than ten (10)
business days after the date of such notice of dispute, such
representatives shall schedule a date for engaging in an alternative
dispute resolution ("ADR") process with ENDISPUTE, Inc. of Cambridge,
Massachusetts or with any other party mutually acceptable to the parties.
Thereafter, the representatives of the parties shall engage in good faith
in an ADR process under the auspices of ENDISPUTE. If the representatives
of the parties have not been able to resolve the dispute within thirty
(30) business days after the termination of ADR, the parties shall have
the right to pursue any other remedies legally available to resolve such
dispute in either the Courts of the Commonwealth of Massachusetts or in
the United States District Court for the District of Massachusetts, to
whose jurisdiction for such purposes GENERAL and NYMOX each irrevocably
consents and submits. Notwithstanding the foregoing, nothing in this
paragraph 11.3(b) shall be construed to waive any rights or timely
performance of any obligations existing under this Agreement.
11.4 This Agreement may be amended and any of its terms or
conditions may be waived only by a written instrument executed by the
parties or, in the case of a waiver, by the party waiving compliance. The
failure of either party at any time or times to require performance of any
provision hereof shall in no manner affect its rights at a later time to
enforce the same. No waiver by either party of any condition or term shall
be deemed as a continuing waiver of such condition or term or another
condition or term.
11.5 This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the parties hereto and their respective
successors and permitted assigns.
11.6 Any delays in or failures of performance by either party
under this Agreement shall not be considered a breach of this Agreement if
and to the extent caused by occurrences beyond the reasonable control of
the party affected, including but not limited to: Acts of God; acts,
regulations or laws of any government; strikes or other concerted acts of
workers; fires; floods; explosions; riots; wars; rebellion; and sabotage;
and any time for performance hereunder shall be extended by the actual
time of delay caused by such occurrence.
11.7 Neither party shall use the name of the other or of any
staff member, employee or student or any adaptation thereof in any
advertising, promotional or sales literature or publicity without the
prior written approval of, for GENERAL, the Director of Public Affairs at
GENERAL and for NYMOX, CEO/President.
11.8 This Agreement shall not be assignable by the GENERAL
without NYMOX's written consent except for the right to receive royalties
payable herein. NYMOX may at its own discretion and without approval by
the GENERAL transfer its interest or any part thereof under this Agreement
to a wholly-owned subsidiary or partnership of which NYMOX is the general
partner or any assignee or purchaser of the portion of its business
associated with the licenses and rights granted under this Agreement. In
the event of any such transfer, the transferee shall assume and be bound
by the provisions of this Agreement. Otherwise this Agreement shall be
assignable by NYMOX only with the consent in writing of GENERAL which
consent shall not be unreasonably withheld.
11.9 If any provision(s) of this Agreement are or become
invalid, are ruled illegal by any court of competent jurisdiction or are
deemed unenforceable under then current applicable law from time to time
in effect during the term hereof, it is the intention of the parties that
the remainder of this Agreement shall not be affected thereby provided
that a party's rights under this Agreement are not materially affected. It
is further the intention of the parties that in lieu of each such
provision which is invalid, illegal, or unenforceable, there be
substituted or added as part of this Agreement a provision which shall be
as similar as possible in economic and business objectives as intended by
the parties to such invalid, illegal or unenforceable provision, but shall
be valid, legal and enforceable.
IN WITNESS WHEREOF, GENERAL and NYMOX have caused this
instrument to be executed.
NYMOX CORPORATION THE GENERAL HOSPITAL CORPORATION
By: By:
Title: Sr. Vice President Title: Vice President for Patents,
for Research and Licensing and Industry Sponsored
Development and Research
Strategic Planning
Date: Date:
I have read the foregoing Agreement and agree to comply with the
obligations of the Principal Investigator stated therein. In addition, I
have read Appendix C and agree to comply with the obligations of GENERAL
stated therein.
Xxxx Xxxxx, M.D. Xxxxxxx de la Monte, M.D.
Date: Date:
APPENDIX C
NYMOX PROPRIETARY INFORMATION
It is anticipated that in the performance of the SPONSORED
RESEARCH sponsored by NYMOX, the PRINCIPAL INVESTIGATORS and members of
the research team designated by him/her will be provided with or given
access by NYMOX to certain information which NYMOX considers proprietary.
The rights and obligations of the parties with respect to such information
are as follows:
1. PROPRIETARY INFORMATION. For the purposes of this
Agreement, "Proprietary Information" refers to information of any kind
which is disclosed by NYMOX to GENERAL and which, by appropriate marking,
is identified as confidential and proprietary at the time of disclosure.
In the event that proprietary information must be provided visually or
orally, obligations of confidence shall attach only to that information
which is confirmed by NYMOX in writing within ten (10) working days as
being confidential.
2. LIMITATIONS ON USE. GENERAL shall use NYMOX's Proprietary
Information solely for the purposes of the Research and License Agreement
between the parties. It is agreed by NYMOX and GENERAL that the transfer
of Proprietary Information shall not be construed as a grant of any right
or license with respect to the information delivered except as set forth
herein or in a duly executed license agreement.
3. CARE OF PROPRIETARY INFORMATION. NYMOX and GENERAL agree
that all Proprietary Information communicated by NYMOX and accepted by
GENERAL in connection with this Agreement shall be kept confidential by
GENERAL as provided herein unless specific written release is obtained
from NYMOX. GENERAL agrees to exert reasonable efforts (no less than the
protection given its own confidential information) to maintain such
Proprietary Information in confidence, to make such Proprietary
Information available only to those employees and students who require
access to it in the performance of this Agreement and to inform them of
the confidential nature of such information.
GENERAL shall be deemed to have discharged its obligations hereunder
provided GENERAL has exercised the foregoing degree of care and provided
further that GENERAL shall immediately, upon discovery of any disclosure
not authorized hereunder, notify NYMOX and take reasonable steps to
prevent any further disclosure or unauthorized use.
When the Proprietary Information is no longer required for the purpose of
this Agreement, GENERAL shall return it or dispose of it as directed by
NYMOX. GENERAL's obligations of confidentiality with respect to
Proprietary Information provided under this Agreement will expire five (5)
years after the date of this Agreement.
4. INFORMATION NOT COVERED It is agreed by NYMOX and GENERAL
that information shall not be deemed Proprietary Information in the event:
(a) it is publicly available prior to the date of the
Agreement or becomes publicly available thereafter
through no wrongful act of GENERAL;
(b) it was known to GENERAL prior to the date of
disclosure or becomes known to GENERAL thereafter from
a third party having an apparent bona fide right to
disclose the information;
(c) it is disclosed by GENERAL in accordance with the
terms of NYMOX's prior written approval;
(d) it is disclosed by NYMOX without restriction on
further disclosure;
(e) it is independently developed by GENERAL; or
(f) GENERAL is obligated to produce pursuant to an order
of a court of competent jurisdiction or a valid
administrative or Congressional subpoena, provided
that GENERAL (a) promptly notifies NYMOX and (b)
cooperates reasonably with NYMOX's efforts to contest
or limit the scope of such order.
APPENDIX D
PATENT RIGHTS
[this page blank at execution of this Agreement]
APPENDIX E
The following PATENT RIGHTS which shall be deemed to be "PATENT
RIGHTS filed by mutual agreement" in accordance with Article 5:
1. (i) the United States Patent Application Serial No.
07/287,207 filed December 20, 1988 entitled "Method of Detecting
Neurological Disease or Dysfunction," (ii) the United States CIP Patent
Application Serial No. 07/451,975 filed on December 20, 1989, (iii) the
United States Patent Application Serial Number 08/055,778 filed May 3,
1993 as a file wrapper continuation, and, (iv) the United States Patent
Application Serial Number to be assigned, filed June 6, 1995 as a
divisional application;
2. (i) the United States Patent Application Serial No.
08/050,559 filed on April 20, 1993 entitled "Neural Thread Protein Gene
Expression and Detection of Alzheimer's Disease, " (ii) the United States
CIP Patent Application Serial No. 08/230,139 filed on April 20, 1994,
(iii) the United States CIP Patent Application 08/340,426 filed on
November 14, 1994, (iv) the United States Patent Application Serial No.
08/454,557 filed on May 30, 1995 as a divisional application, and (v) the
United States Patent Application Serial No. 08/450,673 filed on May 30,
1995 as a divisional application; and
3. any division or continuation and any foreign patent
application or equivalent corresponding to the patent applications listed
in 1 and 2 above, and any Letters Patent or the equivalent thereof issuing
thereon or reissue or extension thereof.
