Exhibit 10.8
RESEARCH AND CONSULTING AGREEMENT
RESEARCH AND CONSULTING AGREEMENT (this "Agreement") dated as of the
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14th day of December, 1998 (the "Effective Date"), by and between Biomodels LLC,
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a Massachusetts limited liability company with a principal place of business at
000 Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxxxxxx 00000 ("Biomodels"), and
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OraPharma, Inc., a Delaware corporation with a principal place of business at
000 Xxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000 (the "Company").
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W I T N E S S E T H:
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WHEREAS, Biomodels has been engaged in the development of pharmaceutical
products relating to the treatment and/or prevention of oral mucositis; and
WHEREAS, the Company has as its principal business objective the
development of therapies in oral health care, and has an interest in developing
pharmaceutical products for the treatment and/or prevention of oral mucositis,
utilizing the Mucosal Technology (as defined below); and
WHEREAS, the parties desire to enter into an agreement pursuant to which
Biomodels shall perform certain research and consulting services in connection
with the development of such pharmaceutical products.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, the parties hereto agree as follows:
SEC DEFINITIONS
For the purpose of this Agreement, the following words and phrases shall
have the meanings set forth below:
1.1 "Affiliate" means, with respect to any Person, any other Person that
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directly, or indirectly through one or more intermediaries, controls or is
controlled by or is under common control with such Person. For purposes hereof,
the term "control" (including, with its correlative meanings, the terms
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"controlled by" and "under common control with"), with respect to any Person,
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means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of such Person (whether through the
ownership of voting securities, by contract or otherwise); provided , that in
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each event in which any Person owns directly or indirectly more than 50% of the
securities having ordinary voting power for the election of directors or other
governing body of a corporation or more than 50% of the ownership interest of
any other Person, such Person shall be deemed to control such corporation or
other Person.
1.2 "Confidential Information" means any and all information (in any and
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every form and media) not generally known in the relevant trade or industry,
which was obtained from any party or any Affiliate thereof in connection with
this Agreement or the respective rights and obligations of the parties
hereunder, including, without limitation, (a) information relating to trade
secrets of such party or any Affiliate thereof, (b) information relating to
existing or contemplated products, services, technology, designs, processes,
formulae, research and development (in any and all stages) of such party or any
Affiliate thereof, (c) information consisting of or relating to the Mucosal
Technology or the Products, and (d) information relating to business plans,
methods of doing business, sales or marketing methods, customer lists, customer
usages and/or requirements and supplier information of such party or any
Affiliate thereof, except that "Confidential Information" shall not include any
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information which (i) at the time of disclosure, is generally known in the
relevant trade or industry, (ii) after disclosure, becomes part of the public
knowledge (by publication or otherwise) in the relevant trade or industry other
than by breach of this Agreement by the receiving party, (iii) the receiving
party can verify by written documentation was in its possession at the time of
disclosure and which was not obtained, directly or indirectly, from the other
party or any Affiliate thereof, (iv) the receiving party can verify by written
documentation results from research and development by the receiving party or
any Affiliate thereof independent of disclosures by the other party or any
Affiliate thereof or (v) the receiving party can prove was obtained from any
Person who had the legal right to disclose such information, provided that such
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information was not obtained to the knowledge of the receiving party or any
Affiliate thereof by such Person, directly or indirectly, from the other party
or any Affiliate thereof on a confidential basis.
1.3 "Control" means, with respect to any Patent or know-how, the
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possession of the ability to grant a license or sublicense with respect thereto
as provided for herein.
1.4 "FDA" means the United States Food and Drug Administration or any
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successor agency thereof.
1.5 "Mucosal" means Mucosal Therapeutics LLC, a Massachusetts limited
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liability company and an Affiliate of Biomodels.
1.6 "Mucosal License Agreement" means the License Agreement dated as of
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the date hereof between Mucosal and the Company.
1.7 "Mucosal Technology" has the meaning provided in the Mucosal License
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Agreement.
1.8 "NDA" means a complete New Drug Application and all supplements
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thereto filed with the FDA, including all documents, data and other information
concerning a Product which are necessary for, or included in, FDA approval to
market such Product as more fully defined in 21 C.F.R. (S)314.5 et seq., as
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amended from time to time.
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1.9 "Oral Mucositis" has the meaning provided in the Mucosal License
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Agreement.
1.10 "Person" means any individual, estate, trust, partnership, joint
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venture, association, firm, corporation or company, or governmental body, agency
or official, or any other entity.
1.11 "Product" means a pharmaceutical product for the treatment and/or
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prevention of oral mucositis which utilizes Mucosal Technology.
1.12 "Program" means the program of activities and time schedule set forth
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in Appendix A hereto and subject to amendment as provided in Section 2.5 below.
1.13 "U.S. Dollars" and the sign "$" each means lawful currency of the
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United States of America.
SEC PROGRAM AND SERVICES
2.1 Program. The Company hereby retains Biomodels exclusively to
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perform, and Biomodels hereby agrees to perform, research services and
consulting services in accordance with the Program and the time schedule set
forth therein. Such services shall include Research Services, Clinical
Consulting Services and General Consulting Services (as such terms are defined
below). The parties acknowledge that time is of the essence in completing the
Program.
2.2 Research Services. Biomodels shall perform all preclinical animal
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studies necessary for the development of a Product and the submission of an NDA
to the FDA with respect thereto , as more fully described in the Program (the
"Research Services"). The Research Services shall include early choice of
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compound and delivery vehicle studies, parallel efficacy studies for
chemotherapy and radiation therapy induced mucositis and repeat efficacy
studies.
2.3 Clinical Consulting Services. Biomodels shall perform consulting
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services in connection with all clinical studies necessary for the development
of a Product and the submission of an NDA to the FDA with respect thereto,
including general support, analysis and clinical management, as more fully
described in the Program (the "Clinical Consulting Services").
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2.4 General Consulting Services. Biomodels shall perform general
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consulting services in connection with the development , formulation, dosing,
testing and analysis of one or more compounds for the treatment and/or
prevention of Oral Mucositis, as more fully described in the Program, as
requested by the Company (the "General Consulting Services"). Biomodels
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personnel shall devote an average of 20 hours per week during each month for the
first three (3) years of the term of this Agreement, subject to extension for a
fourth year at the request of the Company. Travel by Biomodels personnel shall
be limited to an aggregate of twelve (12) days per year for all personnel.
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2.5 Revisions to Program. The Company may, after review and
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consultation with Biomodels, revise the Program as may be necessary or desirable
to accomplish the purposes and objectives thereof, upon thirty (30) days prior
written notice to Biomodels. Notwithstanding the foregoing, such revisions to
the Program shall not change the compensation payable to Biomodels pursuant to
Section 3 hereof unless Biomodels shall have agreed in writing to such change in
compensation.
SECTION 3. PAYMENTS
3.1 Program Charges. All costs incurred by Biomodels in the Program,
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including, without limitation, payments for preclinical animal and other
studies, tests and all reporting, filings, applications and other actions
necessary for the performance of the research and consulting services hereunder,
shall be the sole responsibility of Biomodels. Biomodels will pay when due all
invoices received from providers of goods and/or services incurred in connection
with this Agreement.
3.2 Research Services. The Company shall pay Biomodels for the Research
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Services in accordance with the budget and payment schedule set forth in
Appendix B hereto, which budget is inclusive of overhead, personnel, supplies,
animals, outside services and reporting. Biomodels shall not be entitled to
receive any payments or reimbursements of any amounts in connection with the
Research Services in excess of the applicable maximum amounts budgeted for such
Research Services, as set forth in Appendix B hereto. [the confidential material
contained herein has been omitted and has been separately filed with the
Commission].
3.3 Consulting Services. The Company shall pay Biomodels on a monthly
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basis for General Consulting Services and Clinical Consulting Services in
accordance with the budget and payment schedule set forth in Appendix C hereto.
SECTION 4. REPRESENTATIONS AND WARRANTIES
4.1 By the Company. The Company hereby represents and warrants to
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Biomodels that, as of the Effective Date: (a) the Company has full legal right,
power and authority to execute, deliver and perform its obligations under this
Agreement, (b) the execution, delivery and performance by the Company of this
Agreement do not contravene or constitute a default under any provision of
applicable law or its certificate of incorporation or by-laws (or equivalent
documents) or of any agreement, judgment, injunction, order, decree or other
instrument binding upon the Company, (c) all licenses, consents, authorizations
and approvals, if any, required for the execution, delivery and performance by
the Company of this Agreement have been obtained and are in full force and
effect and all conditions thereof have been complied with, and no other action
by or with respect to, or filing with, any governmental authority or any other
Person is required in connection with the execution, delivery and performance by
the Company of this
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Agreement, and (d) this Agreement constitutes a valid and binding agreement of
the Company, enforceable against the Company in accordance with its terms.
4.2 By Biomodels. Biomodels hereby represents and warrants to the
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Company that, as of the Effective Date: (a) Biomodels has full legal right,
power and authority to execute, deliver and perform its obligations under this
Agreement, (b) the execution, delivery and performance by Biomodels of this
Agreement do not contravene or constitute a default under any provision of
applicable law or of its articles of incorporation or by-laws (or equivalent
documents) or of any agreement, judgment, injunction, order, decree or other
instrument binding upon Biomodels, (c) all licenses, consents, authorizations
and approvals, if any, required for the execution, delivery and performance by
Biomodels of this Agreement have been obtained and are in full force and effect
and all conditions thereof have been complied with, and no other action by or
with respect to, or filing with, any governmental authority or any other Person
is required in connection with the execution, delivery and performance by
Biomodels of this Agreement, and (d) this Agreement constitutes a valid and
binding agreement of Biomodels, enforceable against Biomodels in accordance with
its terms.
4.3 Survival of Representations and Warranties. The representations and
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warranties contained herein shall survive the execution, delivery and
performance of this Agreement by the parties, notwithstanding any investigation
at any time made by or on behalf of any party or parties.
SECTION 5. INDEMNIFICATION
5.1 Indemnification.
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5.1.1 Indemnification by the Company. The Company hereby agrees
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that it shall be responsible for, indemnify, hold harmless and defend Biomodels
and Biomodels' Affiliates, and their respective directors, officers, managing
members, shareholders, partners, attorneys, accountants, agents, employees and
consultants, and their respective heirs, successors and assigns (collectively,
the "Biomodels Indemnitees"), from and against any and all claims, demands,
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losses, liabilities, damages, costs and expenses (including the cost of
settlement, reasonable legal and accounting fees and any other expenses for
investigating or defending any actions or threatened actions) (collectively,
"Losses") suffered or incurred by any Biomodels Indemnitee arising out of,
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relating to, resulting from or in connection with (a) the breach of any
representation or warranty made by the Company herein, (b) the default by the
Company in the performance or observance of any of its obligations to be
performed or observed hereunder, and (c) any action, suit or other proceeding,
or compromise, settlement or judgment, relating to any of the foregoing matters
with respect to which the Biomodels Indemnitees are entitled to indemnification
hereunder. The foregoing shall not apply to the extent that such Losses are due
to the willful misconduct or negligence of any Biomodels Indemnitee as finally
determined by a court of competent jurisdiction.
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5.1.2 Indemnification by Biomodels. Biomodels hereby agrees that
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it shall be responsible for, indemnify, hold harmless and defend the Company and
the Company's Affiliates, and their respective directors, officers, managing
members, shareholders, partners, attorneys, accountants, agents, employees and
consultants, and their respective heirs, successors and assigns (collectively,
the "Company Indemnitees"), from and against any and all Losses suffered or
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incurred by any Company Indemnitee arising out of, relating to, resulting from
or in connection with (a) the breach of any representation or warranty made by
Biomodels herein, (b) the default by Biomodels in the performance or observance
of any of its obligations to be performed or observed hereunder, and (c) any
action, suit or other proceeding, or compromise, settlement or judgment,
relating to any of the foregoing matters with respect to which the Company
Indemnitees are entitled to indemnification hereunder. The foregoing shall not
apply to the extent that such Losses are due to the willful misconduct or
negligence of any Company Indemnitee as finally determined by a court of
competent jurisdiction.
5.1.3 Notice of Claims. In the event that a claim is made
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pursuant to Section 5.1.1 or 5.1.2 above against any party which seeks
indemnification hereunder (the "Indemnitee"), the Indemnitee agrees to promptly
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notify the other party (the "Indemnitor") of such claim or action and, in the
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case of any claim by a third Person against the Indemnitee, the Indemnitor may,
at its option, elect to assume control of the defense of such claim or action;
provided, however, that (a) the Indemnitee shall be entitled to participate
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therein (through counsel of its own choosing) at the Indemnitee's sole cost and
expense, (b) the Indemnitor shall not settle or compromise any such claim or
action without the prior written consent of the Indemnitee, unless such
settlement or compromise includes a general release of the Indemnitee and all of
the other Biomodels Indemnitees or Company Indemnitees, as the case may be, from
any and all liability with respect thereto and (c) the Indemnitee shall
cooperate with the Indemnitor in the defense of such claim or action.
SECTION 6. CONFIDENTIALITY
6.1 The parties each recognize that the Confidential Information of the
party and any and all Affiliates thereof constitutes valuable confidential and
proprietary information. Accordingly, the parties each agree that they and their
respective Affiliates shall, during the term of this Agreement and for a period
of fifteen (15) years after the termination hereof for any reason, hold in
confidence all Confidential Information of the other party (including this
Agreement and the terms hereof) and not use the same for any purpose other than
as set forth in this Agreement nor disclose the same to any other Person except
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to the extent that it is necessary for such party to enforce its rights under
this Agreement or if required by law or any governmental authority (including,
without limitation, any stock exchange upon which such party's shares or other
equity securities may be traded); provided, however, if any party shall be
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required by law to disclose any such Confidential Information to any other
Person, such party shall give prompt written notice thereof to the other party
and shall minimize such disclosure to the amount required. Notwithstanding the
foregoing, either party may disclose Confidential Information of the other (a)
to such party's attorneys, accountants and other professional advisors
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under an obligation of confidentiality to such party, (b) to such party's banks
or other financial institutions or venture capital sources for the purpose of
raising capital or borrowing money or maintaining compliance with agreements,
arrangements and understandings relating thereto, and (c) to any Person who
proposes to purchase or otherwise succeed (by merger, operation of law or
otherwise) to all of such party's right, title and interest in, to and under
this Agreement, if such Person agrees to maintain the confidentiality of such
Confidential Information pursuant to a written agreement in form and substance
reasonably satisfactory to the parties. The standard of care required to be
observed hereunder shall be not less than the degree of care which each party or
Affiliate thereof uses to protect its own information of a confidential nature.
SECTION 7. INTELLECTUAL PROPERTY; INVENTIONS
7.1 Rights to Proprietary Technology. Neither party shall through this
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Agreement obtain any rights to the other party's proprietary technology except
for such rights as are expressly granted or allocated under this Agreement.
7.2 Inventions and Filing, Prosecution and Maintenance of Patents. Any
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inventions, discovery or development (including, without limitation, data,
formulas or research results) generated in the course of the Program shall be
owned solely by Mucosal. Any such inventions, discovery or development shall be
deemed Mucosal Technology and shall be licensed exclusively to the Company by
Mucosal in accordance with and subject to the provisions of the Mucosal License
Agreement.
7.3 License Grant. Under the terms and conditions herein stated,
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the Company hereby grants Biomodels a nonexclusive, worldwide license under the
Mucosal Technology sufficient to enable Biomodels to perform its obligations and
exercise its rights hereunder and for no other purpose.
SECTION 8. LIMITATIONS ON LIABILITY
8.1 No Warranties. Except as expressly set forth in Section 4 hereof,
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neither party makes any representations or warranties as to any matter
whatsoever. EACH PARTY HEREBY DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS AND
WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS AND RESEARCH,
CLINICAL AND GENERAL CONSULTING SERVICES, INCLUDING , WITHOUT LIMITATION, ANY
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
8.2 Limitations of Liability. EXCEPT FOR BREACH OF SECTION 6 HEREOF,
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UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY
OTHER PERSON FOR ANY LOSS OF PROFITS OR SPECIAL, CONSEQUENTIAL OR INDIRECT
DAMAGES OF ANY KIND WHATSOEVER.
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8.3 Force Majeure. No party shall be liable for failure or delay in
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performing any of its obligations hereunder (other than the payment of money) if
such failure or delay is occasioned by compliance with any governmental
regulation, request or order, or by circumstances beyond the reasonable control
of the party so failing or delaying, including, without limitation, Acts of God,
war, insurrection, fire, flood, accident, labor strikes, work stoppage or
slowdown (whether or not such labor event is within the reasonable control of
the parties), or inability to obtain raw materials, supplies, power or equipment
necessary to enable such party to perform its obligations hereunder. Each party
shall (a) promptly notify the other party in writing of any such event of force
majeure, the expected duration thereof and its anticipated effect on the ability
of such party to perform its obligations hereunder, and (b) make reasonable
efforts to remedy any such event of force majeure.
SECTION 9. NON-USE OF NAMES
Neither party shall use the name of the other party nor the name of any
Affiliates, directors, officers, managers, members, partners, shareholders,
consultants or employees of such other party, nor any adaptation thereof, in any
advertising, promotional or sales literature without prior written consent
obtained from such other party in each case (which consent shall not be
unreasonably withheld or delayed).
SECTION 10. TERM AND TERMINATION
10.1 Term. This Agreement shall commence on the Effective Date and,
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unless sooner terminated in accordance with the provisions of this Section 10,
shall continue until December 31, 2002.
10.2 Events of Default. Each party shall have the right to terminate this
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Agreement upon the occurrence of any of the following events (each, an "Event of
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Default") with respect to the other party (the "Defaulting Party"): (a) a decree
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or order shall have been entered by a court of competent jurisdiction adjudging
the Defaulting Party bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, readjustment, arrangement, composition or
similar relief for the Defaulting Party under any bankruptcy law or any other
similar applicable statute, law or regulation, or a decree or order of a court
of competent jurisdiction shall have been entered for the appointment of a
receiver or liquidator or trustee or assignee in bankruptcy or insolvency of the
Defaulting Party or a substantial part of its property, or for the winding up or
liquidation of its affairs; or (b) the Defaulting Party shall institute
proceedings to be adjudicated a voluntary bankrupt, or shall consent to the
filing of a bankruptcy petition against it, or shall file a petition or answer
or consent seeking reorganization, readjustment, arrangement, composition,
liquidation or similar relief under any bankruptcy law or any other similar
applicable statute, law or regulation, or shall consent to the appointment of a
receiver or liquidator or trustee or assignee in bankruptcy or insolvency of it
or of a substantial part of its property, or shall make an assignment for the
benefit of creditors, or shall be unable to pay its debts generally as they
become due; or (c) the Defaulting Party shall commit a material breach of the
terms of this
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Agreement and the same and all of its effects shall not be remedied within
ninety (90) days after written notice thereof is given by the other party to the
Defaulting Party, except that the remedial period shall be thirty (30) days for
any monetary default. The failure by the Company to pay Biomodels any payments
when due and payable in accordance with the provisions of Section 3 hereof shall
be deemed a material breach of this Agreement.
10.3 Termination. Each party may terminate this Agreement upon the
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occurrence of any Event of Default by giving written notice thereof to the other
party, which notice shall specifically identify the reason(s) for such
termination. If the Company shall terminate this Agreement by notice based on
an Event of Default by Biomodels, the Company also has the right to terminate
the Mucosal License Agreement by notice to Mucosal at the same time, and if such
notice is given, termination of both Agreements shall be effective immediately
on such notice. If Biomodels shall terminate this Agreement by notice based on
an Event of Default by the Company, Mucosal also has the right to terminate the
Mucosal License Agreement by notice to the Company at the same time, and, if
such notice is given, termination of both Agreements shall be effective
immediately on such notice. In addition, (i) the Company may terminate this
Agreement at any time by giving at least ninety (90) days' prior written notice
to Biomodels, in which event the Mucosal License Agreement will automatically
terminate, termination of both Agreements to be effective as of ninety (90) days
after such notice by the Company; (ii) if the Company shall exercise its rights
under the Mucosal License Agreement to terminate either because of an event of
default thereunder by Mucosal or unilaterally on ninety (90) days' notice, this
Agreement shall automatically terminate as of the effective date of termination
of the Mucosal License Agreement; and (iii) if Mucosal shall exercise its rights
under the Mucosal License Agreement to terminate because of an event of default
thereunder by the Company, this Agreement shall automatically terminate as of
the effective date of termination of the Mucosal License Agreement.
10.4 Consequences of Termination. The termination of this Agreement for
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any reason shall be without prejudice to (i) the right of each party to receive
all amounts accrued under Section 3 hereof prior to the effective date of such
termination, (ii) the rights and obligations of the parties pursuant to Sections
1, 5, 6, 7, 8, 10.4 and 11 hereof, and (iii) any other remedies as may now or
hereafter be available to any party, whether under this Agreement or otherwise.
Upon the termination of this Agreement each party and its Affiliates shall
immediately cease the use, and return all originals and copies, of all
Confidential Information obtained from the other party or any Affiliate thereof.
SECTION 11. MISCELLANEOUS
11.1 Notices. All notices, reports and/or other communications made in
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accordance with this Agreement, shall be deemed to be duly made or given (i)
when delivered by hand, (ii) three days after being mailed by registered or
certified mail (air mail if mailed overseas), return receipt requested, or (iii)
when received by the addressee, if sent by facsimile transmission or by Express
Mail, Federal Express or other express delivery service (receipt requested), in
each case
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addressed to such party at its address set forth below (or to such other address
as such party may hereafter designate as to itself by notice to the other party
hereto):
In the case of the Company:
OraPharma, Inc.
000 Xxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: President
Telecopier: (000) 000-0000
With a copy to:
Xxxxx Xxxxxx Xxxxxxxxx Radin
Tischman Xxxxxxx & Xxxxx, P.A.
Xxx Xxxxxxxxxx Xxxxx
Xxxxxx, Xxx Xxxxxx 00000
Attention: Xxx X. Xxxxxxxxx, Esq.
Telecopier: (000) 000-0000
In the case of Biomodels:
Biomodels LLC
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Manager
Telecopier: (000) 000-0000
With a copy to:
Xxxxx, Xxxxxxx & Xxxxxxxx LLP
High Street Tower
000 Xxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: B. Xxxx Xxxxxxxxx, Esq.
Telecopier: (000) 000-0000
11.2 Amendments, etc.. This Agreement may not be amended or modified,
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nor may any right or remedy of any party be waived, unless the same is in
writing and signed by such party or a duly authorized representative of such
party. The waiver by any party of the breach of any term or provision hereof by
any other party shall not be construed as a waiver of any other subsequent
breach.
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11.3 No Waiver; Remedies. No failure or delay by any party in
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exercising any of its rights or remedies hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or remedy
preclude any other or further exercise thereof or the exercise of any other
right or remedy. The rights and remedies of the parties provided in this
Agreement are cumulative and not exclusive of any rights or remedies provided by
law.
11.4 Successors and Assigns. This Agreement shall be binding upon and
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inure to the benefit of the parties and their respective heirs, legal
representatives, successors and permitted assigns; provided that, except as
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expressly provided herein, neither party may assign or otherwise transfer this
Agreement or any of its rights, duties or obligations hereunder without the
prior written consent of the other party.
11.5 Relationship of Parties. The Company and Biomodels are not (and
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nothing in this Agreement shall be construed to constitute them) partners, joint
venturers, agents, representatives or employees of the other party, nor to
create any relationships between them other than that of an independent
contractor. Neither party shall have any responsibility or liability for the
actions of the other party except as specifically provided herein. Neither
party shall have any right or authority to bind or obligate the other party in
any manner or make any representation or warranty on behalf of the other party.
11.6 Expenses. Unless otherwise provided herein, all costs and expenses
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incurred in connection with this Agreement and the transactions contemplated
hereby shall be paid by the party which shall have incurred the same and the
other party shall have no liability relating thereto.
11.7 Entire Agreement. This Agreement constitutes the entire agreement
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between the parties and supersedes all prior proposals, communications,
representations and agreements, whether oral or written, with respect to the
subject matter hereof.
11.8 Severability. Any term or provision of this Agreement which is
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invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions hereof in any other jurisdiction.
11.9 Counterparts. This Agreement may be signed in any number of
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counterparts, each of which shall be deemed an original, with the same effect as
if the signatures thereto and hereto were upon the same instrument.
11.10 Headings. The headings used in this Agreement are for
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convenience of reference only and shall not affect the meaning or construction
of this Agreement.
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11.11 Governing Law. This Agreement, including the performance and
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enforceability hereof, shall be governed by and construed in accordance with the
laws of the State of New York, without reference to choice of law doctrine.
Each party hereby submits itself for the sole purpose of this Agreement and any
controversy arising hereunder to the jurisdiction of the courts located in the
State of New York and any courts of appeal therefrom, and waives any objection
(on the grounds of lack of jurisdiction, or forum non conveniens or otherwise)
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to the exercise of such jurisdiction over it by any such courts.
11.12 Arbitration. Except as expressly provided herein, any dispute,
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controversy or claim arising out of or relating to this Agreement, its validity,
construction or enforceability or the breach of any of the terms or provisions
hereof shall be settled by arbitration under the American Arbitration
Association by a panel of three arbitrators, one selected by each party and the
third selected by the other two arbitrators. Any arbitration proceeding
commenced by either party shall be held in the New York City, New York
metropolitan area (including northern New Jersey). The decision of the
arbitrators shall be final and binding upon the parties and judgment upon the
decision by the arbitrators may be entered in any court of competent
jurisdiction, and execution may be had thereon. The expense of such
arbitration, including attorneys' fees, shall be allocated between the parties
as the arbitrators may decide and as the claims and interests of each party may
prevail. Notwithstanding anything to the contrary contained in this Section
11.12, any dispute, controversy or claim relating to actual or threatened
unauthorized use or disclosure of any Confidential Information, or the validity,
applicability, enforceability or infringement of any patent rights, shall not be
required to be submitted to arbitration hereunder and shall be resolved by a
court of competent jurisdiction, and, in addition, each party shall retain the
right to seek injunctive or other temporary relief from a court of competent
jurisdiction.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
BIOMODELS LLC
By: /s/ [signature illegible]
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Manager
ORAPHARMA, INC.
By: /s/ Xxxxxxx Xxxxxxxxx
-------------------------------
President/CEO
12
Appendix A
Program
[the confidential material contained herein has been omitted and has been
separately filed with the Commission]
13
Appendix B
Budget and Payment Schedule for Research Services
The Budget for the research services is the sum [the confidential material
contained herein has been omitted and has been separately filed with the
Commission]
14
Appendix C
Budget and Payment Schedule for General Consulting Services
and Clinical Consulting Service
A. General Consulting Services
[the confidential material contained herein has been omitted and has been
separately filed with the Commission]
B. Clinical Consulting Services
[the confidential material contained herein has been omitted and has been
separately filed with the Commission]
15
