COLLABORATIVE RESEARCH AGREEMENT
--------------------------------
This agreement ("AGREEMENT") is made as of August 1, 1997 ("EFFECTIVE
DATE") by and between BOSTON MEDICAL CENTER CORPORATION (hereinafter referred to
as "BMCC"), a Massachusetts not-for-profit corporation, having its principal
place of business at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, which is a member institution of the Boston University Medical Center,
and OXiGENE, Inc., (hereinafter referred to as "OXiGENE"), a Delaware
corporation, having its principal place of business at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
WHEREAS, BMCC has developed certain technology involving cordycepin,
deoxycoformycin and other related compounds, as potential novel agents for use
in cancer and infectious diseases, and has established, within its Department of
Medicine, a research unit (referred to as the Developmental Therapeutics Unit)
to focus on the continued study and clinical development of these and other
novel therapeutic agents; and
WHEREAS, OXiGENE and BMCC entered into a Clinical Trial and Sponsored
Research Agreement, effective as of December 1, 1996 (the "CORDYCEPIN
AGREEMENT", a copy of which is attached hereto for reference purposes only as
Appendix A), pursuant to which BMCC, among other things, is carrying out
clinical and laboratory-based research studies on cordycepin, deoxycoformycin
and other related compounds as novel therapeutic agents; and
WHEREAS, OXiGENE is engaged in the design and development of drugs that
enhance the clinical efficacy of radiation therapy and chemotherapy in cancer
treatment; and
WHEREAS, the continued study and further development of these radiation-
and chemo-sensitizing drugs in collaboration and conjunction with the BMCC
Developmental Therapeutics Unit's on-going studies on cordycepin,
deoxycoformycin and other related compounds, as contemplated by this AGREEMENT,
is of mutual interest and benefit to OXiGENE and BMCC; and
WHEREAS, OXiGENE and BMCC wish to expand their collaboration to additional
areas of research;
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, and other good and valuable considerations, the receipt of
which is acknowledged, the parties hereby agree as follows:
ARTICLE I--APPOINTMENT
----------------------
1.1 In order to achieve the objectives contemplated by this AGREEMENT, BMCC
shall support ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇, Professor of Molecular Ecogenetics at
the University of ▇▇▇▇ in Lund, Sweden ("LUND UNIVERSITY"), and
OXiGENE's Chief Scientific Officer, in his application to the BMCC
Medical-Dental Staff to become a member of the Scientific Staff. ▇▇.
▇▇▇▇ shall be a Research Program Director within the Developmental
Therapeutics Unit of the BMCC Department of Medicine. With his
appointment to the Medical Dental Staff, ▇▇. ▇▇▇▇ will enjoy all the
rights and benefits, and assume all the responsibilities and
obligations, as a member of the Scientific Staff as set forth in the
BMCC Medical Dental Staff Bylaws.
1.2 In conjunction with the appointment contemplated by Section 1.1, BMCC
will propose ▇▇. ▇▇▇▇ for appointment to the rank of Research Professor
of Medicine at Boston University School of Medicine. This appointment,
in accordance with Boston University Policy on Faculty Appointments,
will constitute a secondary professorial appointment to ▇▇. ▇▇▇▇'▇
primary professorial appointment at ▇▇▇▇ UNIVERSITY. ▇▇. ▇▇▇▇ will
enjoy all the rights and benefits, and will assume all the
responsibilities and obligations, of full professorial status in the
Department of Medicine of Boston University School of Medicine.
1.3 BMCC will provide ▇▇. ▇▇▇▇ with appropriate laboratory and
administrative space and facilities within the BMCC Developmental
Therapeutics Unit (the "FACILITY") to carry out the activities
contemplated by this AGREEMENT.
1.4 By virtue of his appointment as a Research Program Director, ▇▇. ▇▇▇▇
will have the authority, subject to review and approval by Dr. ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, Chairman of the Department of Medicine of BMCC, to recruit
and appoint appropriately qualified individuals to serve as members of
his research and administrative staff within the Developmental
Therapeutics Unit.
ARTICLE II--RESEARCH PROGRAM
----------------------------
2.1 BMCC and OXiGENE agree to conduct programs of laboratory-based and
clinical research at the FACILITY (the "RESEARCH PROGRAM") in
accordance with the terms of this AGREEMENT. The RESEARCH PROGRAM shall
have the following component parts:
(i) A laboratory-based and clinical program pursuant to which ▇▇.
▇▇▇▇ will conceive, direct, manage and conduct research aimed
at the continued development of N-substituted benzamides as
therapeutic agents, in continuity with his on-going work at
▇▇▇▇ UNIVERSITY as described in the N-substituted benzamide
Statement of Work attached hereto as Appendix B (the
"N-SUBSTITUTED BENZAMIDE PROGRAM").
(ii) The ongoing laboratory-based and clinical program pursuant to
which Drs. ▇▇▇▇▇▇▇▇▇ and Sugar will conceive, direct, manage
and conduct research aimed at the continued development of
cordycepin, deoxycoformycin and other related compounds, as
novel therapeutic agents in cancer and infectious diseases as
described in the Cordycepin Statement of Work in Appendix B of
the CORDYCEPIN AGREEMENT which previously governed that
program (the "CORDYCEPIN PROGRAM").
(iii) Additional laboratory-based and clinical projects to be
proposed by Drs. Pero, ▇▇▇▇▇▇▇▇▇ and Sugar and other members
of the BMCC and Boston University faculty to: (a) explore
potential therapeutic synergies between N-substituted
benzamides and cordycepin and related compounds; and (b) to
identify novel therapeutic agents for use in treating human
disease.
(iv) A program to conceive, design and conduct clinical trials
employing novel therapeutic agents and/or strategies in
defined disease states.
2.2 OXiGENE understands that BMCC's primary mission is patient care,
education and advancement of knowledge, and that the RESEARCH PROGRAM
contemplated by this AGREEMENT shall be performed in a manner
consistent with that mission. The manner of conducting, and the
research projects to be undertaken pursuant to the RESEARCH PROGRAM
shall be determined by a committee (the "RESEARCH PROGRAM REVIEW
COMMITTEE") initially consisting of:
(i) ▇▇. ▇▇▇▇, Research Program Director, Developmental
Therapeutics Unit;
(ii) ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Head, Developmental Therapeutics
Unit;
(iii) Dr. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Chairman, BMCC Department of Medicine;
and
(iv) a representative designated by OXiGENE; initially this
representative shall be ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇, OXiGENE's Chief
Medical Officer.
The Committee shall operate under the Chairmanship of ▇▇. ▇▇▇▇▇▇▇▇.
ARTICLE III -- COMPENSATION
---------------------------
3.1 In consideration of BMCC's agreement to conduct the RESEARCH PROGRAM as
determined and approved by the RESEARCH PROGRAM REVIEW COMMITTEE,
OXiGENE agrees to pay to BMCC the amounts set forth in Schedule 3.1
attached hereto (the "INITIAL RESEARCH BUDGET"). The INITIAL RESEARCH
BUDGET shall cover the expense of conducting the RESEARCH PROGRAM at
the FACILITY for the 12-month period ending July 31, 1998.
3.2 The RESEARCH PROGRAM REVIEW COMMITTEE shall determine and approve a
budget for each 12-month period subsequent to the INITIAL RESEARCH
BUDGET (each a "SUBSEQUENT BUDGET" and together with the INITIAL
BUDGET, the "BUDGET") no later than three (3) months prior to the
beginning of the 12-month period to which such SUBSEQUENT BUDGET
relates. The RESEARCH PROGRAM REVIEW COMMITTEE, by unanimous decision,
shall allocate each BUDGET to the component parts of the RESEARCH
PROGRAM. The RESEARCH PROGRAM REVIEW COMMITTEE shall review each BUDGET
from time to time to determine if any reallocations are necessary or
appropriate.
3.3 BUDGET payments to be made pursuant to ARTICLE III shall be made in
quarterly installments in advance, with the first payment due promptly
after the EFFECTIVE DATE. BUDGET payments shall be made in the name of
"BOSTON MEDICAL CENTER CORPORATION," and if by check shall be sent to
Boston Medical Center Corporation, Office of Grants and Contracts, One
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Director. If payments are made by wire transfer, they shall
be sent to ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ Number ▇▇▇▇▇▇▇▇▇, to the credit of
Account Number ▇▇▇▇-▇▇▇-▇, Beneficiary Boston Medical Center.
ARTICLE IV--REVIEW, CONSULTATION, AND ACCESS
--------------------------------------------
4.1 From time to time during the performance of the RESEARCH PROGRAM,
OXiGENE representatives, upon reasonable advance notice, shall have the
opportunity to meet and consult with Drs. Pero, McCaffrey, Sugar and
any other Principal Investigator funded under the BUDGET regarding the
progress and performance of the RESEARCH PROGRAM.
4.2 Drs. Pero, McCaffrey, Sugar and all Principal Investigators funded from
the BUDGET, shall provide:
(a) a quarterly accounting, by project, of funds expended;
(b) a written progress report on the RESEARCH PROGRAM every six
(6) months;
(c) and a comprehensive written progress report on the RESEARCH
PROGRAM every twelve (12) months
to the RESEARCH PROGRAM REVIEW COMMITTEE, with copies to OXiGENE, the
Chairman of the BMCC Department of Medicine and the Director of the
Office of Technology Transfer of Boston University. The reports
contemplated by this Section 4.2 shall include an accounting of the
disposition of funds, and a projection of budget requirements during
the next twelve (12) months.
ARTICLE V--PUBLICATION
----------------------
5.1 Each Principal Investigator of any RESEARCH PROGRAM conducted at the
FACILITY and funded from the BUDGET shall be free to publish or to
present at professional scientific conferences the results of the
RESEARCH PROGRAM conducted pursuant to this AGREEMENT. In order to
protect against loss of confidentiality or patent rights as a result of
any such publication or presentation, a Principal Investigator shall
submit copies of drafts of any intended publication or presentation of
results of the RESEARCH PROGRAM conducted pursuant to this AGREEMENT to
OXiGENE at least thirty (30) days prior to the anticipated date of
submission of data for publication or presentation. If OXiGENE, in its
reasonable judgment, requires additional time to seek patent
protection, then the Principal Investigator shall defer the submission
of the materials for such publication or presentation for an additional
thirty (30) days.
ARTICLE VI--CONFIDENTIALITY
---------------------------
6.1 OXiGENE may wish, from time to time, in connection with the RESEARCH
PROGRAM to be conducted at the FACILITY pursuant to this AGREEMENT, to
disclose to RESEARCH PROGRAM personnel information that is confidential
and proprietary in nature. All such information which has been
indicated as confidential orally if disclosed orally or has been marked
confidential if disclosed in writing, electronically or visually, shall
be kept confidential by RESEARCH PROGRAM personnel for a period of five
(5) years from the date of receipt of such CONFIDENTIAL INFORMATION.
This obligation shall not apply to any information which:
(a) was already known to RESEARCH PROGRAM personnel as evidenced
by written records;
(b) is, or at some future time, becomes publicly known under
circumstances not involving a breach of this AGREEMENT by
RESEARCH PROGRAM personnel, or any other person subject to a
confidentiality or non-disclosure obligation to OXiGENE;
(c) RESEARCH PROGRAM personnel are legally compelled, by
applicable law, to disclose, provided, however, that in such
an event RESEARCH PROGRAM personnel shall give prompt notice
to OXiGENE of such a requirement so that it may seek a
protective order or other appropriate remedy.
6.2 All RESEARCH PROGRAM personnel to whom OXiGENE discloses CONFIDENTIAL
INFORMATION shall sign a CONFIDENTIALITY AGREEMENT in the form attached
hereto as Appendix C.
6.3 Neither RESEARCH PROGRAM personnel, nor BMCC, its trustees, officers,
employees and agents shall be liable for any claim or damage resulting
from the disclosure of CONFIDENTIAL INFORMATION, except to the extent
that same results from negligence or willful misconduct of any such
person or entity. In no event shall RESEARCH PROGRAM personnel and
BMCC, its trustees, officers, employees and agents be liable for
indirect, special or consequential damages (including, but not limited
to, lost profits). In no event shall the liability of RESEARCH PROGRAM
personnel and BMCC, its trustees, officers, employees and agents exceed
the amounts payable to BMCC under this AGREEMENT. The foregoing
notwithstanding, RESEARCH PROGRAM personnel and BMCC agree that the
provisions regarding CONFIDENTIAL INFORMATION contained in this
AGREEMENT are fair and reasonable, that money damages would not be a
sufficient remedy for any breach of this AGREEMENT by RESEARCH PROGRAM
personnel or BMCC, and that in addition to all other remedies, OXiGENE
shall be entitled to specific performance and injunctive or other
equitable relief as a remedy for such breach.
ARTICLE VII--PUBLICITY
----------------------
7.1 Neither party shall use the name of the other party or of any of the
RESEARCH PERSONNEL in any advertising or promotional material without
the prior written approval of the other party. The foregoing
notwithstanding, (i) BMCC shall acknowledge OXiGENE'S financial
contribution and sponsorship of the RESEARCH PROGRAM in BMCC's
customary reports and publications; (ii) OXiGENE may file a copy of
this AGREEMENT (redacted to the extent permitted by applicable law to
ensure confidentiality) as an exhibit to, and disclose the existence
and describe the terms of this AGREEMENT in, its press releases,
reports and filings, including, but not limited to, releases, reports
and filings with the US Securities and Exchange Commission and relevant
non-US government authorities; and (iii) OXiGENE may make reference to
technical publication by RESEARCH PROGRAM personnel or their
co-authors. Any publicity of this AGREEMENT pursuant to this ARTICLE VI
shall describe the relationship of the parties accurately and
appropriately.
ARTICLE VIII--INVENTIONS AND PATENTS
------------------------------------
8.1 BMCC shall own all rights to any patentable discovery or invention made
at the FACILITY in the course of work conducted under the RESEARCH
PROGRAM and funded from the BUDGET, including, but not limited to,
processes, methods, formulas and techniques (collectively,
"INVENTIONS").
8.2 A committee (the "PATENT COMMITTEE") consisting of Drs. Pero and
▇▇▇▇▇▇▇▇▇, the Director of the Office of Technology Transfer of Boston
University, one additional representative to be nominated by BMCC and
two additional representatives to be nominated by OXiGENE, shall, from
time to time, but no less frequently than every six (6) months,
evaluate observations, discoveries and inventions made at the FACILITY
in the course of work conducted under the RESEARCH PROGRAM, and
determine whether to proceed with the filing of a patent application
with respect to any such observation, discovery or invention. The costs
of such patent filing shall be the responsibility of OXiGENE. Any
patent filing and prosecution expense incurred by OXiGENE pursuant to
this AGREEMENT shall be offset against future royalties due by OXiGENE
in respect of any LICENSE (as defined in Section 8.3). In the event
that the PATENT COMMITTEE determines that a patent should not be filed
pursuant to this AGREEMENT, each of BMCC or OXiGENE, as the case may
be, may file a patent application in its respective name and at its
respective expense, and shall so inform the other party. In the event
that such a patent is commercialized by either BMCC and OXiGENE, BMCC
and OXiGENE will negotiate financial terms (including royalties and the
distribution thereof) with respect to such a patent in good faith,
recognizing the origin of the INVENTION to be in the RESEARCH PROGRAM,
and thus subject to the overall terms and conditions of ARTICLE VIII.
8.3 OXiGENE shall have the option to acquire an exclusive, worldwide,
royalty-bearing license (a "LICENSE"), including the right to
sublicense, to make, have made, use, lease, market and sell products
embodying, or produced through the use of, any INVENTION. Any agreement
with respect to a LICENSE shall include financial terms generally and
customarily found in license agreement, including a royalty on net
sales within the range set forth in Schedule 8.3 attached hereto and
appropriate due diligence and administrative provisions.
8.4 Any LICENSE granted to OXiGENE pursuant to Section 8.3 shall be subject
to the Boston University Medical Center Patent Policy, except that
royalty income received by BMCC from INVENTIONS made in the course of
work conducted under the N-SUBSTITUTED BENZAMIDE PROGRAM shall be
distributed as follows:
(i) 20% to BMCC for its unrestricted use;
(ii) 80% to BMCC to be applied against future BUDGETS for the
RESEARCH PROGRAM.
provided, however, that royalty income received by BMCC from JOINT
INVENTIONS (as defined below) shall be distributed fifty percent (50%)
in accordance with Boston University Medical Center Patent Policy and
fifty percent (50%) in accordance with the provisions of this Section
8.4. For purposes of this AGREEMENT, a "JOINT INVENTION" is any
invention made at the FACILITY in the course of work conducted under
the RESEARCH PROGRAM that is the subject of a U.S. patent application
in which the persons properly named as inventors under U.S. patent law
include at least (a) one (1) individual whose RESEARCH PROGRAM work is
funded from the BUDGET and whose work is primarily related to the
N-SUBSTITUTED BENZAMIDE PROGRAM, and (b) one (1) individual funded by
BMCC whose work is primarily related to the components of the RESEARCH
PROGRAM set forth in Sections 2.1 (iii) and (iv).
8.5 Royalty income received from INVENTIONS made in the course of work
conducted under the CORDYCEPIN PROGRAM shall be distributed in
accordance with the Boston University Medical Center Patent Policy.
8.6 If OXiGENE elects to exercise its option to acquire a LICENSE, OXiGENE
and BMCC agree to negotiate the specific terms thereof in good faith.
The parties agree to use their reasonable best efforts to complete any
LICENSE negotiations, including the execution of an agreement, within
six (6) months of OXiGENE'S written notice to BMCC electing to exercise
its option, provided, however, that if OXiGENE and BMCC agree that
reasonable progress has been made in the negotiations of a particular
LICENSE agreement, the six-month period shall be extended for one
period of ninety (90) days to allow for the conclusion of such
negotiations. If no agreement on the terms and conditions of a
particular LICENSE agreement can be reached within the period provided
in the preceding sentence, then BMCC shall be free to negotiate a
license arrangement with a third party. If the terms and conditions
agreed to between BMCC and any third party, taken in total, are
materially more favorable to such third party than those that were last
offered to, and not accepted by, OXiGENE (the "THIRD PARTY TERMS"),
BMCC shall give prompt written notice (the "THIRD PARTY LICENSE
NOTICE") to OXiGENE of the THIRD PARTY TERMS, and OXiGENE shall have a
right of first refusal (exercisable by written notice to BMCC within
ten (10) days after receipt by OXiGENE of the THIRD PARTY LICENSE
NOTICE) to enter into a license arrangement with BMCC on the THIRD
PARTY TERMS.
8.7 If OXiGENE declines to exercise its option to acquire a LICENSE because
the subject matter of the INVENTION is outside its strategic focus, and
BMCC licenses such INVENTION to a third party, income received by BMCC
from such third party licensee shall be distributed in accordance with
the provisions of Section 8.4.
ARTICLE IX -- LIABILITY
-----------------------
9.1 OXiGENE shall defend, indemnify and hold harmless BMCC, its trustees,
officers, employees and agents and their respective successors, heirs
and assigns (collectively, the "INDEMNITEES"), against any and all
liability, damage, loss or expense (including reasonable attorneys'
fees and expenses of litigation) that may be incurred by, or imposed
upon, the INDEMNITEES, or any of them, in connection with any claim,
suit, demand, action or judgment arising out of the following:
(a) the design, production, manufacture, sale, use in commerce,
lease, or promotion by OXiGENE or by an affiliate or
sublicensee of OXiGENE of any product, process or service
relating to or developed pursuant to this Agreement; or
(b) any other activities to be carried out pursuant to this
Agreement.
9.2 OXiGENE shall have no obligation to indemnify against any liability,
damage, loss or expense (including reasonable attorneys' fees and
expenses of litigation) to the extent the same is attributable to: (i)
the negligence or willful misconduct of any of the INDEMNITEES; or (ii)
if the RESEARCH PROGRAM involves a clinical trial of an investigational
drug, a failure of any of the INDEMNITEES to adhere to the terms of the
protocol or OXiGENE'S written instructions relative to use of the
investigational drug; or (iii) the loss by BMCC of its status as a
not-for-profit corporation under Section 501(c)(3) of the Internal
Revenue Code of 1986, as amended.
9.3 BMCC MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY MATTER
WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THE CONDITION OF THE
RESEARCH OR ANY INVENTION(S) OR PRODUCT(S), WHETHER TANGIBLE,
CONCEIVED, DISCOVERED OR DEVELOPED UNDER THIS AGREEMENT; OR THE
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE RESEARCH OR
ANY SUCH INVENTION OR PRODUCT. BMCC SHALL NOT BE LIABLE FOR ANY DIRECT,
CONSEQUENTIAL OR OTHER DAMAGES SUFFERED BY OXiGENE, ANY LICENSEE OR ANY
OTHERS RESULTING FROM THE USE OF THE RESEARCH OR ANY SUCH INVENTION OR
PRODUCT.
ARTICLE X -- INDEPENDENT CONTRACTOR
-----------------------------------
10.1 For the purpose of this AGREEMENT and all services to be provided
hereunder, the parties shall be, and shall be deemed to be, independent
contractors and not agents or employees of the other party. Neither
party shall have authority to make any statements, representations or
commitments of any kind, or to take any action which shall be binding
on the other party, except as may be explicitly provided for herein or
authorized in writing.
ARTICLE XI -- TERMS AND TERMINATION
-----------------------------------
11.1 The initial term of this AGREEMENT shall be from July 1, 1997 through
June 30, 2000. This AGREEMENT shall automatically be extended for
additional 12- month periods, provided, however, that either party may
give written notice (a "TERMINATION NOTICE") to the other party that it
desires to terminate this AGREEMENT, in which case this AGREEMENT shall
terminate effective as of the date that is twelve (12) months from the
TERMINATION NOTICE.
11.2 BMCC may terminate the AGREEMENT upon thirty (30) days prior written
notice to OXiGENE if circumstances beyond its control reasonably
preclude continuation of the RESEARCH PROGRAM.
11.3 If, based on any of the meetings or reports specified in ARTICLE IV,
OXiGENE, in its sole and absolute discretion, determines that
scientific progress in any one or more of the components of the
RESEARCH PROGRAM has been inadequate and that it wishes to terminate
funding for said component, then OXiGENE may give written notice to
BMCC of its determination, in which case funding for such RESEARCH
PROGRAM component will terminate effective three (3) months after
receipt of said notice by BMCC.
11.4 In the event that either party shall be in default of any of its
obligations under this AGREEMENT and shall fail to remedy such default
within sixty (60) days after receipt of written notice thereof, the
party not in default shall have the right to terminate this AGREEMENT
immediately by giving written notice thereof.
11.5 Termination or cancellation of this AGREEMENT shall not affect the
rights and obligations of the parties accrued prior to termination.
Upon any termination of this AGREEMENT, BMCC shall be entitled to be
compensated for all reasonable out-of-pocket expenses and uncancellable
commitments incurred as of the effective date of termination in an
amount not to exceed the remaining amount then budgeted for the
RESEARCH PROGRAM.
11.6 ARTICLES VI and VIII and any other provisions of this AGREEMENT which
by their nature extend beyond the termination of this AGREEMENT shall
survive such termination. If an INVENTION(S) made prior to the
termination of this AGREEMENT results in royalty income subsequent to
the termination of this AGREEMENT and said royalty income comes from
INVENTIONS made in the course of work conducted under the N-SUBSTITUTED
BENZAMIDE PROGRAM, it shall be distributed as follows:
(i) 50% to BMCC and
(ii) 50% to OXiGENE
until BMCC has received five million dollars ($5,000,000) in cumulative
payments, and thereafter:
(iii) 20% to BMCC and
(iv) 80% to OXiGENE.
If said royalty income is from JOINT INVENTIONS, fifty percent (50%)
shall be distributed in accordance with Boston University Medical
Center Patent Policy and fifty percent (50%) in accordance with the
provisions of this Section 11.6.
ARTICLE XII -- MEDIATION/ARBITRATION
------------------------------------
12.1 In the event a controversy or dispute arises between the parties
relating to any provision of this AGREEMENT, including, but not limited
to, the specific terms of any LICENSE agreement being negotiated in
connection with the exercise of OXiGENE'S option pursuant to Section
8.3 hereof, or the breach of any provision of this AGREEMENT, the
parties agree to use the following procedure prior to either party
pursuing other available remedies.
(a) The parties shall promptly hold a meeting, such meeting to be
attended by individuals with decision-making authority
regarding the dispute, in an attempt to negotiate a resolution
of the dispute in good faith.
(b) If within thirty (30) days after such meeting the parties have
not succeeded in negotiating a resolution of the dispute, they
agree to submit the dispute to mediation by the American
Arbitration Association (the "AAA"), the cost of such
mediation to be borne equally by both parties.
(c) The parties agree to participate in good faith in the
mediation and negotiations related thereto for a period of
thirty (30) days. If the parties are not successful in
resolving the dispute through mediation, then either party may
submit the dispute to arbitration, unless the parties mutually
agree otherwise.
12.2 Arbitration shall be subject to the following terms:
(a) The arbitration shall be held at a mutually agreeable location
in the Boston, Massachusetts metropolitan area.
(b) The arbitrator(s) shall be an independent, impartial third
party(ies) having no direct or indirect personal or financial
relationship to any of the parties to the dispute, who
has(have) agreed to accept the appointment as arbitrator(s) on
the terms set out in this ARTICLE XII.
(c) The arbitrator(s) shall be an active or retired attorney, law
professor or judicial officer with at least five (5) years
experience in commercial technology transfer matters and a
familiarity with the laws governing proprietary rights in
intellectual property.
(d) The arbitrator(s) shall be selected as follows:
Each party shall submit a description of the matter to be
arbitrated together with the terms of this ARTICLE XII to the
AAA at its Regional Office in Boston, Massachusetts. The AAA
shall submit to the parties a list of the qualified
arbitrators available to arbitrate the matter. The first
arbitrator acceptable to both parties shall be deemed the
selected arbitrator with respect to the dispute then at issue
under this AGREEMENT. In the event of a failure to select a
mutually agreeable arbitrator, the parties will each select an
arbitrator and the two arbitrators will select a third
arbitrator.
(e) Within sixty (60) days after selection of the arbitrator(s),
each party shall submit a description of the matter to be
arbitrated to said arbitrator(s).
(f) From the date the arbitrator(s) is in possession of both
parties' submitted material, the arbitrator(s) shall have
forty-five (45) days in which to hear oral testimony and
render a decision. Each party shall have a maximum of two (2)
working days during said forty-five day period in which to
present oral testimony.
(g) Time periods set forth in this ARTICLE XII may be altered only
by mutual consent of the parties;
(h) The arbitrator(s) shall announce the award in writing
accompanied by written findings explaining the facts
determined in support of the award and any relevant
conclusions of law;
(i) The fees of the arbitrator(s) and any other costs and fees
associated with the arbitration shall be paid in accordance
with the decision of the arbitrator(s), except that the
prevailing party shall pay no more than one-half of such
costs.
(j) Except as provided in Section 12.2(i) the decision of the
arbitrator(s) shall be final and binding on all parties, and
judgment may be entered thereon in any court having
jurisdiction thereof.
ARTICLE XIII -- GENERAL
-----------------------
13.1 This AGREEMENT may not be assigned by either party without the prior
written consent of the other party, provided, however, that OXiGENE may
assign this AGREEMENT, in whole or in part, to any person controlling,
under common control with or controlled by OXiGENE. The foregoing
notwithstanding, the sale of all or substantially all of OXiGENE'S
assets or the merger or consolidation of OXiGENE with or into another
entity shall not be deemed an assignment by OXiGENE of this AGREEMENT.
13.2 This AGREEMENT constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof, and supersedes and
replaces any prior agreement or understanding, whether written or oral.
No representations and warranties, other than those expressly set forth
herein, shall be deemed to have been made. The foregoing
notwithstanding, the CORDYCEPIN AGREEMENT is hereby terminated and
shall no longer have any force and effect, except provisions relating
to the STUDY (as defined in the CORDYCEPIN AGREEMENT) and ARTICLE VIII,
including APPENDIX E (with respect to the licensing of cordycepin)
shall remain in effect. This AGREEMENT may not be amended, modified or
supplemented, unless signed by the parties hereto.
13.3 Any notice required by this AGREEMENT shall be deemed sufficiently
given if sent in writing by prepaid, first class, certified or
registered mail, return receipt requested, addressed in the case of
BMCC to:
Office of General Counsel
Boston Medical Center Corporation
One ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.: General Counsel
with a copy to:
Office of Technology Transfer
Community Technology Fund
Boston University
▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.: Director
and in the case of OXiGENE to:
OXiGENE, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.: Vice President
with a copy to:
OXiGENE Europe AB
Ideon Research Park
Scheelevagen ▇▇
▇-▇▇▇ ▇▇ ▇▇▇▇,
▇▇▇▇▇▇
Attn.: Chief Scientific Officer
or at such other address as may be designated by notice given from time
to time pursuant to the terms of this provision.
13.4 This AGREEMENT shall be construed and enforced in accordance with the
laws of the Commonwealth of Massachusetts.
IN WITNESS WHEREOF, the parties have caused this agreement to be executed
by their duly authorized representatives.
OXiGENE, Inc BOSTON MEDICAL CENTER
CORPORATION
By: -------------------------- By: -------------------------
Name: ▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇
Title: Chief Financial Officer Title: Director of Financial Planning
