TECHNOLOGY LICENSE AGREEMENT BETWEEN CARDIOVASCULAR BIOTHERAPEUTICS, INC. AND CARDIO NEO-GENESIS, LP Dated as of November 11, 2008
BETWEEN
AND
CARDIO
NEO-GENESIS, LP
Dated
as
of November 11, 2008
Exhibit
10.2
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Page
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1
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.
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Definitions
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1
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1.1
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Definitions
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1
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1.2
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Singular
and Plural
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1
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2
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.
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Grant
of Licenses
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1
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2.1
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Grant
of Nonexclusive Licenses to CNG; Right to Sublicense
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1
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2.2
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Third
Party Licenses to CVBT or Any of Its Affiliates
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2
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2.3
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CNG
Sublicenses and Licenses to CVBT
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2
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3
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.
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Representations,
Warranties and Covenants
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3
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3.1
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Representations,
Warranties and Covenants of CVBT
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3
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3.2
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Representations,
Warranties and Covenants of CNG
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3
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4
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.
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Patents
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4
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4.1
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Derived
from the Development
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4
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4.2
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Rights
After Termination of Agreements
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4
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5
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Confidential
Information
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5
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6
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Permitted
Disclosures
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5
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7
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.
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Disclaimer
of Warranty; Consequential Damages
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5
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7.1
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Disclaimer
of Warranty
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5
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7.2
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Consequential
Damages
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6
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8
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Indemnification
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6
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8.1
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Indemnification
by CVBT
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6
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8.2
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Indemnification
by CNG
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6
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8.3
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Defense
of Claims
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6
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9
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Term
and Termination
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7
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9.1
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Term
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7
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9.2
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Termination
by Mutual Agreement
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7
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9.3
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Termination
of Development
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7
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9.4
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Termination
by CVBT or CNG for Breach
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7
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9.5
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Termination
After Full Payment
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7
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9.6
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Effect
of Termination
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7
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9.7
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Continuing
Obligation to Make Payments
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7
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10
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.
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Miscellaneous
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8
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10.1
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No
Implied Waivers; Rights Cumulative
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8
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10.2
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Force
Majeure
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8
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10.3
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Relationship
of the Parties
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8
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10.4
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Notices
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8
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10.5
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Successors
and Assigns
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9
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10.6
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Amendments
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9
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10.7
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Governing
Law
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9
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10.8
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Severability
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10
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10.9
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Trading
Limitations
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10
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10.10
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Counterparts
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10
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10.11
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Entire
Agreement
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10
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i
This
Technology License Agreement (the “Agreement”) is made as of November 11, 2008
by and between CardioVascular BioTherapeutics, Inc., a Delaware corporation
(“CVBT”) and Cardio Neo-Genesis, LP, a Nevada limited partnership
(“CNG”).
R
E C
I T A L S
A. CVBT
and
CNG are parties to the Development Agreement (all capitalized terms herein
shall
have the respective meanings set forth in the Development
Agreement).
B. CVBT
is
the owner of the Heart Drug IP and certain intellectual property rights relating
thereto.
C. Pursuant
to the Development Agreement, CNG has engaged CVBT to employ the Heart Drug
IP
in conducting the Development.
D. In
the
Development process, CVBT may develop additional inventions, processes, data,
know-how, or enhancements of, or relating to, the Heart Drug IP (the “Program
IP”).
E. CVBT
desires to acquire, and CNG is willing to grant to CVBT, an exclusive worldwide
license or sublicense to exploit the Program IP as it deems
appropriate.
NOW,
THEREFORE, in consideration of the mutual covenants set forth herein and for
other good and valuable consideration, the receipt and sufficiency of which
are
hereby acknowledged, and in order to induce CVBT to enter into the Agreements,
CVBT and CNG hereby agree as follows:
1. Definitions.
1.1 Definitions.
All
capitalized terms used herein and not otherwise defined shall have the
respective meanings, to the extent such terms are used herein, set forth in
Schedule 1.1 attached hereto, which is incorporated by this reference as though
fully set forth herein.
1.2 Singular
and Plural.
Singular and plural forms, as the case may be, of terms defined herein shall
have correlative meanings.
2. Grant
of Licenses.
2.1 Grant
of Nonexclusive Licenses to CNG; Right to Sublicense.
2.1.1 CVBT
Grant.
Subject
to the terms and conditions of this Agreement, CVBT hereby grants to CNG a
nonexclusive perpetual, worldwide right and license, terminable only as set
forth herein, to employ CVBT’s Heart Drug IP for purposes of the Development.
CNG understands and acknowledges that CVBT may grant similar licenses to other
research and development partnerships for purposes of additional development
of
the Heart Drug IP or the Program IP.
1
2.2 Third
Party Licenses to CVBT or Any of Its Affiliates.
With
respect to the rights of third parties that may be obtained by CVBT after the
date hereof, and which are necessary or useful to the Development under the
Development Agreement, CVBT shall use commercially reasonable efforts to secure
such rights and the right to sublicense such rights to CNG and shall sublicense
such rights to CNG whenever possible; provided that CNG shall not be obligated
to accept any grant of rights or assume any obligations hereunder without its
prior written consent. If CNG desires to obtain any such rights licensed to
CVBT
or any of its Affiliates pursuant to an agreement with any Person other than
CNG
(a “Third Party Agreement”), the existence of which CVBT shall promptly inform
CNG, CNG and CVBT agree to negotiate in good faith regarding the allocation
between CVBT or any of its Affiliates and CNG of the royalty, license fee,
milestone fee or other payments payable to the third party and the assumption
of
any obligations applicable to such license, if any. CNG shall bear the cost
of
obtaining any such rights and shall assume such obligations only in proportion
to its and its sublicensees’ (other than CVBT’s and/or any of its Affiliates)
use of such rights. Any sublicense granted to CNG hereunder shall be limited
to
the rights that CVBT and/or any of its Affiliates has a right to grant under
any
such Third Party Agreement and to any obligations under any such Third Party
Agreement, and to any obligations assumed by CVBT and/or any of its Affiliates
in consideration of the grant or assignment of such rights to CVBT which are
to
be sublicensed to CNG. No party shall take any action, or fail to take any
action within its control, that would constitute or give rise to a breach or
other violation by CVBT or any of its Affiliates of any such Third Party
Agreement. The parties agree that no future licensing fees are required to
be
paid by CNG during the term of this Agreement as consideration for the licenses
and sublicenses granted to CNG hereunder, except as set forth in this Section
2.2.
2.3 CNG
Sublicenses and Licenses to CVBT.
2.3.1 Development
License.
CNG
hereby grants CVBT an exclusive, even as to CNG and all other Persons,
royalty-free license to employ and engage in any and all uses of the Heart
Drug
IP to conduct Development, subject to the terms and conditions of and to the
extent necessary to perform its obligations under the Development Agreement.
The
rights granted under this Section 2.3.1 may be further sublicensed by CVBT
only
to its Affiliates or as permitted under of the Development Agreement (and,
in
such a case, solely to the extent necessary to perform any subcontracting
services thereunder) or to other research and development partnerships for
purposes of additional development of the Heart Drug IP or the Program
IP.
2.3.2 Commercialization
License.
CNG
hereby grants CVBT an exclusive, even as to CNG and all other Persons, worldwide
license to use the Program IP to further develop the Heart Drug IP or make,
have
made, use or sell products based on the Heart Drug IP and/or Program IP subject
to the terms and conditions of and to the extent necessary to perform its
obligations under the Development Agreement. The rights granted under this
Section 2.3.2 may be further sublicensed by CVBT only to its Affiliates or,
to
the extent necessary to perform any subcontracting services under the
Development Agreement, or to other research and development partnerships for
purposes of additional development of the Heart Drug IP or the Program IP.
Payments due to CNG hereunder are as specified in Section 5 of the Development
Agreement.
2
2.3.3 Other
Licenses.
The
foregoing licenses are granted in addition to, and not in substitution for,
any
other license granted to CVBT.
3. Representations,
Warranties and Covenants.
3.1 Representations,
Warranties and Covenants of CVBT.
CVBT
represents, warrants and covenants to CNG as follows:
3.1.1 Organization
of CVBT.
CVBT is
a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware with full corporate power and authority adequate
for executing and delivering and performing its obligations under this
Agreement.
3.1.2 Authorization.
The
execution, delivery and performance of this Agreement have been duly authorized
by all necessary corporate action on the part of CVBT and this Agreement shall
constitute a legal, valid and binding obligation of CVBT, enforceable against
CVBT in accordance with its terms, subject to laws of general application
relating to bankruptcy, insolvency and the relief of debtors.
3.1.3 Other
Agreements.
CVBT
shall not enter into any agreement, make any commitment, take any action or
fail
to take any action that would contravene any material provision of, or
materially derogate or restrict any of the rights and licenses granted or
assigned to CNG under, this Agreement; provided however, CVBT may enter into
other contracts with other research and development partnerships for the purpose
of further development of the Heart Drug IP or the Program IP. CVBT agrees
to
abide and be bound by the terms of any license agreement to which it is a party,
any of the rights to which have been or will be sublicensed or assigned to
CNG.
3.1.4 Intellectual
Property Rights.
CVBT
believes that it has sufficient legal and/or beneficial title and ownership
to
grant the licenses to the CVBT Heart Drug IP and the other intellectual property
rights provided in Section 2 above. CVBT is not aware of any allegations that
it
has violated, or that CNG by practicing the Heart Drug IP as contemplated in
the
Agreements would violate, any intellectual property rights of any third party.
To the best of its knowledge, there is no material unauthorized use,
infringement or misappropriation of any of the Heart Drug IP. CVBT is not aware
of, nor has it received any communications challenging the ownership, validity
or effectiveness of the Heart Drug IP.
3.1.5 Validity.
CVBT is
not aware of any action, suit or inquiry or investigation instituted by any
federal, state, local or foreign governmental agency or instrumentality which
questions or threatens the validity of the Agreements.
3.2 Representations,
Warranties and Covenants of CNG.
CNG
represents, warrants and covenants to CVBT as follows:
3.2.1 Organization.
CNG is
a limited partnership duly organized, validly existing and in good standing
under the laws of State of Nevada with full partnership power and authority
adequate for executing and delivering and performing its obligations under
this
Agreement.
3
3.2.2 Authorization.
The
execution, delivery and performance of this Agreement have been duly authorized
by all necessary partnership action on the part of CNG, and this Agreement
shall
constitute a legal, valid and binding obligation of CNG, enforceable against
CNG
in accordance with its terms, subject to laws of general application relating
to
bankruptcy, insolvency and the relief of debtors.
3.2.3 Other
Agreements.
CNG
shall not enter into any agreement, make any commitment, take any action or
fail
to take any action that would contravene any material provisions of, or
materially derogate or restrict any of the rights or licenses granted to CVBT
under this Agreement.
3.2.4 Sublicenses.
CNG
agrees to abide and be bound by the terms of the sublicenses granted to it
in
accordance with the terms of this Agreement by CVBT under any Third Party
Agreement or agreement with a third party.
3.2.5 Non-Solicitation.
CNG
shall not, during the term of this Agreement, without the prior written consent
of CVBT, solicit the employment of any person, in any capacity, who, at any
time
during the term of this Agreement, shall have been an officer, director,
employee or agent of CVBT or any of its Affiliates.
3.2.6 Validity.
CNG is
aware of no action, suit or inquiry or investigation instituted by any federal,
state, local or foreign governmental agency or instrumentality which questions
or threatens the validity of the Agreements.
4. Patents.
4.1 Derived
from the Development.
During
the term of this Agreement, CVBT shall direct and cause appropriate patent
applications to be prepared, filed and prosecuted in all relevant territories,
in a timely fashion, with respect to any inventions included in the Program
IP
arising out of inventions made by CVBT employees or consultants that CVBT deems
appropriate. CVBT shall cause any patents issuing thereon to be maintained
and
enforced. The expenses of preparing, prosecuting and maintaining such patents
shall be borne by CVBT. CVBT shall have the right, in its sole discretion,
to
enforce any patents issued in conjunction with the Program IP.
4.2 Rights
After Termination of Agreements.
After
the expiration or termination of this Agreement and the Development Agreement,
CVBT shall have the exclusive right, at its sole expense, to prepare and
prosecute, in its name, patent applications, and to maintain patents issued
with
respect to the Program IP or the Heart Drug IP. CVBT shall have the right,
in
its sole discretion, to enforce any patents issued with regard to the Program
IP
and/or Heart Drug IP.
4
5. Confidential
Information.
Any
party receiving Confidential Information shall maintain the confidential and
proprietary status of such Confidential Information, keep such Confidential
Information and each part thereof within its possession or under its control
sufficient to prevent any activity with respect to the Confidential Information
that is not specifically authorized or contemplated by this Agreement, use
all
commercially reasonable efforts to prevent the disclosure of any Confidential
Information to any other Person, and use commercially reasonable efforts to
ensure that such Confidential Information is used only for those purposes
specifically authorized or contemplated herein; provided, however, that such
restriction shall not apply to any Confidential Information that is (a)
independently developed by the receiving party outside the scope of this
Agreement or the Development Agreement (provided, however, that such restriction
shall apply to any technology licensed by CVBT to CNG under this Agreement),
(b)
in the public domain at the time of its receipt or thereafter becomes part
of
the public domain through no fault of the receiving party, (c) received without
an obligation of confidentiality from a third party having the right to disclose
such information, (d) released from the restrictions of this Section 4 by the
express written consent of the disclosing party, (e) disclosed to any permitted
assignee, permitted sublicensee or permitted subcontractor of CVBT or CNG under
the Agreements (if such assignee, sublicensee or subcontractor is subject to
the
provisions of this Section 4 or substantially similar provisions) or (f)
required by law, statute, rule or court order to be disclosed provided the
receiving party promptly provides sufficient notice to the disclosing party
so
that the disclosing party may seek a protective order or other confidential
treatment (the disclosing party shall, however, use commercially reasonable
efforts to obtain confidential treatment of any such disclosure). The
obligations set forth in this Section 4 shall survive for a period of ten years
from the expiration or termination (other than by exercise) of the Purchase
Option. Without limiting the generality of the foregoing, CVBT and CNG each
shall use commercially reasonable efforts to obtain, if not already in place,
confidentiality agreements from their respective employees and agents, similar
in scope to this Section 4, to protect the Confidential
Information.
6. Permitted
Disclosures.
Notwithstanding the provisions of Section 4 hereof, CVBT and CNG (and their
permitted sublicensees) may, to the extent necessary, disclose and use
Confidential Information, consistent with the rights of CVBT and CNG otherwise
granted hereunder (a) for the purpose of securing institutional or government
approval to clinically test or market any Heart drug developed with the use
of
the Program IP or (b) for the purpose of securing patent protection for an
invention within the scope of the Program IP.
7. Disclaimer
of Warranty; Consequential Damages.
7.1 Disclaimer
of Warranty.
Nothing
in this Agreement shall be construed as a representation made or warranty given
by any party hereto that the practice by a party hereto of any license granted
hereunder, or that the use of any Heart Drug IP or Program IP licensed
hereunder, will not infringe the patent or proprietary rights of any other
Person. CNG understands that the Development shall involve technologies that
have not been approved by any regulatory authority and that CVBT does not
guaranty the safety or usefulness of any Heart Drug product developed with
the
Heart Drug IP or the Program IP. In addition, CVBT and CNG acknowledge that
the
Heart Drug IP or Program IP is licensed to CNG and sublicensed to CVBT hereunder
as is, and CVBT and CNG expressly disclaim and hereby waive, release and
renounce any warranty, express or implied, with respect to such Heart Drug
IP or
Program IP, including, without limitation, any warranty of merchantability,
fitness for a particular purpose or noninfringement. Except as expressly set
forth in this Agreement, CVBT and CNG disclaim all warranties of any nature,
express or implied.
5
7.2 Consequential
Damages.
None of
the parties to this agreement shall be entitled to recover from another party
hereto any special, incidental, consequential or punitive damages.
8. Indemnification.
8.1 Indemnification
by CVBT.
CVBT
shall indemnify the CNG Indemnitees, pay on demand and protect, defend, save
and
hold harmless each CNG Indemnitee from and against any and all Claims incurred
by or asserted against any CNG Indemnitee of whatever kind or nature, including,
without limitation, any claim or liability based upon negligence, warranty,
strict liability, violation of government regulation or infringement of patent
or other propriety rights, arising from or occurring as a result of (a) any
use
of the Program IP by CVBT or any Affiliate, agent or sublicensee of CVBT (other
than CNG in contravention of the terms of this Agreement), (b) any of the
Development or any other services to be performed by CVBT during the term of
the
Agreements pursuant to the Agreements, including, without limitation, any
workers’ compensation claim by any CVBT employee or consultant or other Person
or (c) subject to Section 7.2, any breach of the Agreements by CVBT, except,
with respect to CNG Indemnitees, in cases in which Claims of CNG Indemnitees
are
based upon the gross negligence or willful misconduct of an CNG Indemnitee.
An
CNG Indemnitee shall promptly notify CVBT of any Claim with respect to which
an
CNG Indemnitee is seeking indemnification hereunder, upon becoming aware
thereof, and permit CVBT at CVBT’s cost to defend against such Claim and shall
cooperate in the defense thereof.
8.2 Indemnification
by CNG.
CNG
shall indemnify the CVBT Indemnitees, pay on demand and protect, defend, save
and hold harmless each CVBT Indemnitee from and against any and all Claims
incurred by or asserted against any CVBT Indemnitee of whatever kind or nature,
including, without limitation, any claim or liability based upon negligence,
warranty, strict liability, violation of government regulation or infringement
of patent or other propriety rights, arising from or occurring as a result
of
(a) any use of the Heart Drug IP or Program IP by CNG or any sublicensee of
CNG
(other than the use of such by CVBT whether pursuant to the Agreements or
otherwise) or (b) subject to Section 7.2, any breach of the Agreements by CNG,
except, with respect to CVBT Indemnitees, in cases in which Claims are based
upon the gross negligence or willful misconduct of a CVBT Indemnitee. An
Indemnitee hereunder shall promptly notify CNG of any Claim with respect to
which such Indemnitee is seeking indemnification hereunder, upon becoming aware
thereof, and permit CNG at CNG’s cost to defend against such Claim and shall
cooperate in the defense thereof.
8.3 Defense
of Claims.
None of
CVBT or CNG shall enter into, or permit, any settlement of any Claim for which
indemnification is being sought by such party hereunder without the express
written consent of each other party (or a CVBT or CNG Indemnitee, as the case
may be), which consent shall not be unreasonably withheld or delayed. Each
party
may, at its option and expense, have its own counsel participate in any
proceeding which is under the direction of another party (the “Indemnifying
Party”) and will cooperate with the Indemnifying Party and its insurer in the
disposition of any such matter; provided, however, that if the Indemnifying
Party shall not defend such Claim, the other party shall have the right to
defend such Claim itself and recover from the Indemnifying Party all reasonable
attorneys’ fees and expenses incurred by it during the course of such
defense.
6
9. Term
and Termination.
9.1 Term.
This
Agreement shall be effective as of the date hereof and shall continue in full
force and effect indefinitely, unless terminated earlier as provided in Sections
9.2, 9.3, 9.4 and 9.5 hereof.
9.2 Termination
by Mutual Agreement.
By
mutual agreement, the parties hereto may at any time terminate this Agreement
and the Development on mutually acceptable terms.
9.3 Termination
of Development.
At any
time, and upon notice to CNG, CVBT may elect to terminate the Development
process due to insufficient progress, overwhelming competition or outright
inability to make progress toward a commercially marketable Heart
drug.
9.4 Termination
by CVBT or CNG for Breach.
Either
CVBT or CNG shall have the right to terminate this Agreement, effective as
set
forth in a written notice of the occurrence of a material breach of this
Agreement. Such termination must be preceded by written notice delivered to
the
breaching party specifying the breach and offering a reasonable opportunity
and
no less than thirty (30) days for the breaching party to cure such
breach.
9.5 Termination
After Full Payment.
This
Agreement shall terminate upon payment in full by CVBT to CNG of the maximum
amount set forth in Section 5 of the Development Agreement.
9.6 Effect
of Termination.
If this
Agreement is terminated pursuant to Sections 9.2 or 9.3, neither party shall
have any liability to the other except as agreed upon pursuant to the
termination and the ownership of the Heart Drug IP and the Program IP including,
without limitation, any patents that may issue based on the Heart Drug IP or
Program IP, will revert to CVBT without further action on the part of any of
the
parties. If the Agreement is terminated pursuant to Section 9.4, the parties
shall have such remedies as may be available under applicable law. If this
Agreement is terminated pursuant to Section 9.5, all right, title and interest
in the Heart Drug IP and the Program IP shall revert to CVBT without further
action on the part of any of the parties. However, to the extent that evidence
of any such reversion is required to be placed in a writing, CNG will, at CVBT’s
request, execute and deliver to CVBT specific assignments of the Heart Drug
IP
or the Program IP and execute, acknowledge and deliver to CVBT such other
documents and take such further actions as CVBT may consider necessary or
appropriate to confirm or vest title in such intellectual property in
CVBT.
9.7 Continuing
Obligation to Make Payments.
Notwithstanding anything contained herein to the contrary, upon termination
of
this Agreement, the obligation to pay any amounts payable by any party to
another party which accrued prior to such termination shall
survive.
7
10. Miscellaneous.
10.1 No
Implied Waivers; Rights Cumulative.
No
failure on the part of CVBT or CNG to exercise and no delay in exercising any
right, power, remedy or privilege under this Agreement or provided by statute
or
at law or in equity or otherwise, including, without limitation, the right
or
power to terminate this Agreement, shall impair, prejudice or constitute a
waiver of any such right, power, remedy or privilege or be construed as a waiver
of any breach of this Agreement or as an acquiescence therein, nor shall any
single or partial exercise of any such right, power, remedy or privilege
preclude any other or further exercise thereof or the exercise of any other
right, power, remedy or privilege.
10.2 Force
Majeure.
CVBT
and CNG shall each be excused for any failure or delay in performing any of
their respective obligations under this Agreement, if such failure or delay
is
caused by a force, effect, cause or circumstance beyond the control of the
nonperforming party.
10.3 Relationship
of the Parties.
Nothing
contained in this Agreement is intended or is to be construed to constitute
CVBT
and CNG as partners or joint venturers or one party as an employee of any other
party. Except as expressly provided herein, no party hereto shall have any
express or implied right or authority to assume or create any obligations on
behalf of or in the name of any other party or to bind any other party to any
contract, agreement or undertaking with any third party.
10.4 Notices.
All
notices, requests and other communications to CVBT or CNG hereunder shall be
in
writing (including telecopy or electronic mail (“e-mail”) transmissions), shall
refer specifically to this Agreement and shall be personally delivered or sent
by telecopy, facsimile or e-mail transmission or by registered mail or certified
mail, return receipt requested and postage prepaid, or by reliable overnight
courier service, in each case to the respective address specified below (or
to
such address as may be specified in writing to the other party
hereto):
| If to CVBT, addressed to: |
0000
Xxxxxxx Xxxxxx Xxxxxx
Xxxxx
000
Xxx
Xxxxx, Xxxxxx 00000
Attention:
Xxxxxxx X. Xxxx, CFO
Fax
No.:
000-000-0000
E-mail:
xxxxx@xxxx.xxx
with
a
copy to the attention of General Counsel (using the same information above
except if via email, then also to xxxxx@xxxx.xxx)
| If to CNG, addressed to: |
Cardio
Neo-Genesis, LP
|
0000
Xxxxxxxxxxxx Xxxxx
Xxx
Xxxxx, Xxxxxx 00000
Attention:
Xxxx X. Xxxx
Fax
No.:
000-000-0000
E-mail:
xxxx0000@xxxxx.xxx
8
Each
party shall provide each other party with copies of any notices sent hereunder,
with such copies sent at the same time as the original notice. Any notice or
communication given in conformity with this Section 10.4 shall be deemed to
be
effective when received by the addressee, if delivered by hand, telecopy or
e-mail transmission, three days after mailing, if mailed, and one business
day
after delivery either to a reliable overnight courier service or via any
electronic means permissible under this Agreement provided the sender has
confirmation of successful transmission.
10.5 Successors
and Assigns.
The
terms and provisions of this Agreement shall inure to the benefit of, and be
binding upon, CVBT, CNG and their respective successors and assigns; provided,
however, that CVBT and CNG may not assign or otherwise transfer any of their
respective rights and interests, nor delegate any of their respective
obligations, hereunder, including, without limitation, pursuant to a merger
or
consolidation, without the prior written consent of the other party hereto;
provided further, however, that CVBT may fully assign its respective rights
and
interests, and delegate its respective obligations, hereunder, effective upon
written notice thereof (a) to an Affiliate if such Affiliate assumes all of
the
obligations of CVBT hereunder and this Agreement remains binding upon CVBT;
or
(b) to any Person that acquires all or substantially all of the assets of CVBT
or which is the surviving Person in a merger or consolidation with CVBT if
such
Person assumes all the obligations of CVBT hereunder. Notwithstanding the
foregoing, CNG shall not have the right to assign its rights to the Heart Drug
IP granted herein without the written consent of CVBT. Any attempt to assign
or
delegate any portion of this Agreement in violation of this Section 10.5 shall
be null and void. Subject to the foregoing any reference to CVBT or CNG
hereunder shall be deemed to include the successors thereto and assigns
thereof.
10.6 Amendments.
No
amendment, modification, waiver, termination or discharge of any provision
of
this Agreement, nor consent by CVBT or CNG to any departure therefrom, shall
in
any event be effective unless the same shall be in writing specifically
identifying this Agreement and the provision intended to be amended, modified,
waived, terminated or discharged and signed by CVBT and CNG, and each amendment,
modification, waiver, termination or discharge shall be effective only in the
specific instance and for the specific purpose for which given and shall not
be
deemed to be a wavier, termination or discharge for any subsequent, individual
or repeated similar or different instance or purpose. No provision of this
Agreement shall be varied, contradicted or explained by any other agreement,
course of dealing or performance or any other matter not set forth in an
agreement in writing and signed by CVBT and CNG.
10.7 Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Delaware, as applied to contracts made and performed entirely within
the State of Delaware. Except as otherwise provided herein, any claim or
controversy arising out of or related to this contract or any breach hereof
shall be submitted to a court of competent jurisdiction in the State of Nevada,
and the parties hereby consent to the jurisdiction and venue of such
court.
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10.8 Severability.
If any
provision hereof should be held invalid, illegal or unenforceable in any respect
in any jurisdiction, then, to the fullest extent permitted by law, (a) all
other
provisions hereof shall remain in full force and effect in such jurisdiction
and
shall be liberally construed in order to carry out the intentions of the parties
hereto as nearly as may be possible and (b) such invalidity, illegality or
unenforceability shall not affect the validity, legality or enforceability
of
such provision in any other jurisdiction. To the extent permitted by applicable
law, CVBT and CNG hereby waive any provision of law that would render any
provision hereof prohibited or unenforceable in any respect.
10.9 Trading
Limitations.
In
addition to being Confidential Information, the results of the Development
will
be deemed material nonpublic information until disclosed to the public by CVBT
in a report to the Securities and Exchange Commission (the “SEC”), or, if
applicable and/or permissible and/or appropriate, in a press release or
published on CVBT’s web site in an event where a filing with the SEC is not
required or is discretionary. If CNG is in possession of, or otherwise has
knowledge of, the results of the Development before such public disclosure
by
CVBT, CNG acknowledges and agreed that it may not trade in CVBT securities.
Further, CNG agrees to obtain a similar acknowledgment agreement from its
partners.
10.10 Counterparts.
This
Agreement may be executed in any number of counterparts, each of which
counterpart, when so executed and delivered, shall be deemed to be an original,
and all of which counterparts, taken together, shall constitute one and the
same
instrument.
10.11 Entire
Agreement.
This
Agreement, together with any agreements referenced herein, constitute, on and
as
of the date hereof, the entire agreement of CVBT and CNG with respect to the
subject matter hereof, and all prior or contemporaneous understandings or
agreements, whether written or oral, between CVBT and CNG with respect to such
subject matter are hereby superseded in their entirety.
[REMAINDER
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IN
WITNESS WHEREOF the parties have executed this Agreement as of the date first
above written.
| CARDIOVASCULAR BIOTHERAPEUTICS, INC. | |||
| By | /s/ Xxxxxxx X. Xxxx | ||
|
Xxxxxxx
X. Xxxx
Its
Chief Financial Officer
|
|||
| Cardio Neo-Genesis, LP | |||
| By | Neo Cardio Partners, LLC | ||
| Its General Partner | |||
| By | /s/ Xxxx X. Xxxx | ||
| Xxxx X. Xxxx
Its
Manager
|
|||
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SCHEDULE
1.1
DEFINITIONS
“Affiliate”
of a person shall mean a Person that directly or indirectly through one or
more
intermediaries, controls, is controlled by or is under common control with
such
Person. “Control” (and, with correlative meanings, the terms “controlled by” and
“under common control with”) shall mean the possession of the power to direct or
cause the direction of the management and policies of such Person, whether
through the ownership of voting stock, by contract or otherwise. In the case
of
a corporation, “control” shall mean, among other things, the direct or indirect
ownership of more than 50% of its outstanding voting stock.
“Agreements”
shall mean the Technology Agreement and the Development Agreement.
“Claim”
shall mean any and all liabilities, damages, losses, settlements, claims,
actions, suits, penalties, fines, costs or expenses (including, without
limitation, reasonable attorneys’ fees).
“Confidential
Information” shall mean the Heart Drug IP and all Program IP developed by CVBT
(and its Affiliates) and disclosed to CNG or by CNG to CVBT pursuant to the
Agreements.
“CVBT
Indemnitee” shall mean CVBT, its successors and assigns, and the directors,
officers, employees, agents and counsel thereof.
“Development”
shall mean the further development of the Program IP for the purpose of
advancing the FDA Process toward development of a Heart drug approved for
commercialization by the FDA.
“Development
Agreement” shall mean the Development Agreement dated as of November 11, 2008,
between CVBT and CNG, as amended, modified or supplemented from time to
time.
“FDA”
shall mean the United States Food and Drug Administration or any successor
agency or authority, the approval of which is required to market biologic
products in the United States.
“FDA
Process” shall mean the clinical trials and other activities necessary to obtain
FDA approval for commercialization.
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“Force
Majeure” shall mean any act of God, any accident explosion, fire, storm,
earthquake, flood, drought, peril of the sea, riot, embargo, war or foreign,
federal, state or municipal order of general application, seizure, requisition
or allocation, any failure or delay of transportation, shortage of or inability
to obtain supplies, equipment, fuel or labor or any other circumstance or event
beyond the reasonable control of the party relying upon such circumstance or
event.
“Person”
shall mean any individual, partnership, corporation, firm, association,
unincorporated organization, joint venture, trust or other entity.
“Program
IP” shall mean the Heart Drug IP and any enhancements, substitutions, or
improvements to the Heart Drug IP, as well as any new data or know-how
associated therewith, that is discovered, developed or otherwise acquired by
CVBT pursuant to the Development Agreement.
“CNG
Indemnitee” shall mean CNG, its successors and assigns, and the directors,
officers, employees, agents and counsel thereof.
“Technology
Agreement” shall mean this Technology License Agreement dated as of November 11,
2008, between CVBT and CNG, as amended, modified or supplemented from time
to
time.
“Heart
Drug IP” shall be the intellectual property described in Schedule 2.1 to the
Development Agreement which schedule is incorporated herein by this
reference.
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