EXHIBIT 10.17
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This Research Agreement (the "Agreement") dated as of May 12, 1997 is
entered into by and between The Texas A&M University System ("University"), with
principal offices in College Station, Texas, and Avax Technologies, Inc.
("Sponsor"), a Delaware corporation having its principal place of business at
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇. ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇, ▇▇▇▇▇. All capitalized terms used
herein and not otherwise defined herein shall have the meanings ascribed for
such terms in the License Agreement (as hereinafter defined).
WHEREAS, Sponsor, pursuant to the License Agreement dated February 17,
1997 between University and Sponsor (the "License Agreement"), is the exclusive
licensee of University's rights to certain patent applications (as more fully
defined therein) relating to a family of molecules known as the
Alkyl-Substituted Dibenzofurans.
WHEREAS, Sponsor desires to support research conducted by University
upon the terms and conditions as set forth herein;
WHEREAS, University has the facilities and the personnel with the
requisite skills, experience, and knowledge to undertake such Study; and
WHEREAS, the Study contemplated by this Agreement is of mutual interest
and benefit to University and Sponsor.
NOW, THEREFORE, the parties agree as follows:
1. Description of the Study and Budget. University and the Principal
Investigator agree to conduct research at the Texas Agricultural Experimentation
Station of the Texas A&M University System to further develop the dibenzofurans
technology (the "Study"). The Study shall be conducted in accordance with the
plan of work, attached hereto as Exhibit A and forming a part of this Agreement.
The Principal Investigator (as defined in the below paragraph 2) may make shifts
among items of expense when necessary to accomplish objectives of the Study.
2. Principal Investigator. The Principal Investigator (the "Principal
Investigator"), a full-time employee of the University, shall be ▇▇. ▇▇▇▇▇▇▇
▇. Safe. The Principal Investigator agrees to use best efforts to perform the
work required under this Agreement. If Dr. Safe is unable to continue to
serve as Principal Investigator and the parties hereto are unable to agree on
a successor acceptable to both University and Sponsor within a reasonable
time not to exceed ninety (90) days, the Agreement shall be terminated in
accordance with Paragraph 7.
3. Compliance with Laws. The Study will be conducted in
accordance with, and the Principal Investigator shall comply with all
federal, state, and local laws and regulations applicable to the Study.
4. Awards and Payments. In consideration of the work to be performed
under this Agreement as set forth in Exhibit A, Sponsor shall provide financial
support for the Study as set forth in the budget (the "Budget") attached hereto
as Exhibit B and forming a part of this Agreement. The Budget for the first year
of the Study, and extensions mutually agreed upon by the parties, shall be
payable in accordance with the payment schedule included in Exhibit B, with the
exception that the first such payment by Sponsor to University shall be due
ninety (90) days from the Effective Date (as defined in Paragraph 6 below).
Subject to the immediately succeeding sentence, the exact Budget for each year
of the Study commencing after the first year shall be added to Exhibit at the
same time the Research Protocol for such year is added to Exhibit A pursuant to
Paragraph 1 and shall be part of the negotiations contemplated in Paragraph 1.
Subject to Paragraph 7 of this Agreement, Sponsor shall provide University with
sponsored research funding of ▇▇. ▇▇▇▇▇▇▇ ▇. Safe's laboratory at University in
the amount of not more than $108,750 for each of the first three agreement years
unless such greater amount is mutually agreed to by the parties hereto.
5. Independent Contractor. University and the Principal Investigator's
relationship to Sponsor under this Agreement shall be that of an independent
contractor and not an agent, joint venturer or partner of Sponsor and shall not
otherwise be construed as creating any other form of legal association or
arrangement which would impose liability upon one Party for the act or failure
to act of the other Party.
6. Effective Date and Term. The "Effective Date" shall be thirty (30)
days from the date of the signing of this Agreement. This Agreement shall
continue in effect for three (3) years or until completion of the Study (the
"Term") or termination of this Agreement pursuant to Paragraph 7 herein. The
research proposal set forth in Exhibit A shall be deemed completed for the
purposes of this Paragraph 6 whenever:
(a) the Study is concluded by the Principal Investigator;
(b) the Principal Investigator leaves the employ of the
University.
7. Termination. This Agreement may be terminated as follows:
(a) Either Party may immediately terminate this Agreement due
to any material breach or default of any material
provision of this Agreement upon sixty (60) days prior
written notice to the other Party unless such breach or
default is cured within such sixty (60) day period.
(b) Sponsor may terminate this Agreement upon ninety (90)
days written notice.
(c) Sponsor may terminate this Agreement upon thirty (30)
days written notice if the Principal Investigator is
unable to complete the Study and the parties are unable
to agree upon a successor within a reasonable time
pursuant to ▇▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇▇.
(▇) Sponsor may terminate this Agreement if the
Principal Investigator leaves the employment of the
University.
If this Agreement is terminated prior to the end of the Term, all funds paid to
the time of termination shall be considered non-recoverable. Also, University's
sole damages and remedy shall be to recover from Sponsor all amounts owed for
work completed and expenses committed through the date of termination based
pro-rata upon the figures in Exhibit A; provided, however, that Sponsor shall
continue to pay to University for all non-cancelable employment obligations
incurred by University as a result of this Agreement, except for the Principal
Investigator, for the remainder of any Agreement year which has begun and within
such year the termination has occurred. Paragraphs 9 (Confidential Information),
10 (Publication), 11 (Inventions and Patent Rights), 12 (Indemnification), and
13 (Use of Name) shall survive any termination of this Agreement.
Termination of this Agreement shall have no effect on the rights and obligations
of the Sponsor in contained in the License Agreement.
8. Research Data and Reporting; Site Visits.
(a) All research data, including copies of laboratory
notebooks and other relevant information generated during the Study shall be
promptly and fully disclosed to Sponsor, and shall be freely usable by Sponsor
consistent with good business judgment. University shall submit a complete
written progress report after the Study is completed. The Principal
Investigator, with the concurrence of the University, shall submit interim
progress reports not less than annually nor more than quarterly, providing the
Sponsor with a narrative account of the research performed, expenditures
incurred, the results of the research and the supporting data concerning the
research conducted during such period, within (60) days of the end of such
quarter or year, as the case may be.
(b) From time to time during the term of this Agreement,
Sponsor may, upon reasonable notice, send one or more representatives to the
University to discuss with the Principal Investigator and their associates the
results of the Study and the details of the investigative techniques being
employed therein. The representatives shall be identified to University and the
timing of such site visits shall be reasonably acceptable to University.
(c) Milestones are expected to change during the course of the
Study and shall be jointly agreed to between the Principal Investigator and
Sponsor during the course of expected monthly meetings.
9. Confidential Information. "Confidential Information" shall mean
all information provided by one Party to the other and clearly
identified as "Confidential" by the transmitting Party at the time of
disclosure. If such transmittal occurs orally, the transmitting Party will
promptly reduce such transmittal in writing, ▇▇▇▇ and identify it as
confidential, and provide such record to the other Party. Specifically
excepted from this is all information:
(a) known by the receiving Party prior to the receipt
of such information from the disclosing Party;
(b) that was in the public domain or enters the public
domain through no improper act on the part of the
Sponsor or on the part of any of the Sponsor's employees;
(c) subject to Paragraph 10 of this Agreement, which has
been approved for public release by written
authorization by the Foundation;
(d) rightfully received by the receiving Party
without an express obligation of confidence;
(e) independently developed by personnel of either Party
who are not working under this Agreement; or
(f) disclosed pursuant to any judicial or government request,
requirement or order, provided that the disclosing Party
takes reasonable steps to provide the other Party to
contest such request, requirement or order.
Subject to publication provisions of Paragraph 10, neither Party will disclose
the other Party's Confidential Information without prior written authorization
from the other. This provision shall remain in effect for five (5) years
following the termination of this Agreement.
10. Publication. Subject to Paragraph 9, University and Principal
Investigator shall be free to use the results of the research for their own
non-commercial purposes, including teaching, research, education, clinical and
publication purposes, without the payment of royalties or other fees. University
shall submit to Sponsor for its review, a copy of any proposed written, oral or
other disclosure which relates to the Patent Rights, Licensed Improvements and
Technology (as those terms are defined in the License Agreement) at least sixty
(60) days prior to the estimated date of publication, and if no
response is received within thirty (30) days of the date submitted to Sponsor,
it will be conclusively presumed that the publication may proceed without delay.
For abstracts, oral presentations or other proposed public disclosures,
University shall submit a copy of such abstract, or oral presentation or other
disclosure to Sponsor no later than thirty (30) days prior to the estimated date
of publication, and if no response is received within fifteen (15) days of the
date submitted to Sponsor, it will be conclusively presumed that the publication
may proceed without day. If Sponsor determines that the proposed publication
contains information that should remain proprietary Sponsor may request that
such information be removed from the proposed publication or disclosure. If
Sponsor determines that such disclosures contain patentable subject matters
which require protection, Sponsor may require the delay of publication for such
period as may be required to file such patent application or other Intellectual
Property protection. University, Sponsor, the Principal Investigator and any
other applicable employee of University shall cooperate so as to enable the
filing of any patent applications or other Intellectual Property protection
necessary to protect the proprietary interests of Sponsor and University.
11. Inventions and Patent Rights. It is recognized and understood that
certain existing inventions and technologies are the separate property of
Sponsor or University and are not affected by this Agreement, and neither Party
shall have any claims to or rights in such separate inventions and technologies.
Any new inventions, developments or discoveries (including, without limitations,
technical information, know-how, and Improvements [as that term is defined in
the License Agreement]) (collectively referred to hereinafter as the
"Inventions") resulting from the Study shall be promptly disclosed in writing to
Sponsor but in no event shall disclosure of such Invention by University, the
Principal Investigator or other researcher be made to any third Party unless in
accordance with Paragraph 10. Title to any new Inventions resulting from the
Study shall be in University if discovered by University employees, and in
Sponsor if discovered by employees of Sponsor. Inventorship of such Inventions
shall be determined in accordance with patent law or by mutual agreement if the
Invention is not patentable. To the extent that University owns the rights of
sole or joint inventorship of such Invention, Sponsor is hereby granted, without
further consideration, an exclusive worldwide right and license to any
patentable Invention upon the terms and conditions set forth in the License
Agreement if Sponsor elects to fund the patent prosecution of such Invention and
such patentable Invention shall be included as a part of the Patent Rights. In
addition, if any such Invention is not patentable or otherwise protectable as a
trade secret, Sponsor shall have the right to use, develop, manufacture, have
manufactured, market and employ any such unpatentable Inventions without the
obligation to pay any royalties.
12. Indemnification.
(a) Sponsor agrees to indemnify, hold harmless and defend
University, its trustees, officers, employees, and agents from and against any
and all claims, suits, losses, damages, costs, fees, expenses (including
reasonable attorney's fees), and other liabilities asserted by third parties,
both government and non-government, resulting from
or arising out of the Study carried out pursuant to this Agreement; provided,
however, that Sponsor shall not be liable for (a) the negligence, intentional
wrongdoing, or failure to follow the Research Protocol of the Principal
Investigators, University, its trustees, officers, employees and agents and (b)
any and all claims for damages to University property or for bodily injury,
death or property damage to employees of University or to any third party acting
on behalf of or under the authorization of University arising out of the
performance of this Agreement, except for the negligent or intentional acts
solely of the Sponsor with respect to both (a) and (b) above. Without limiting
the foregoing, except for the negligence or willful misconduct of University,
Sponsor agrees to indemnify and defend University from all liabilities, demands,
damages, expenses and losses (including reasonable attorney fees and expenses of
litigation) arising out of the use by Sponsor, or any Party acting on behalf of
or under authorization from Sponsor, of the Study Results or out of any use,
sale or other disposition by Sponsor, or by any Party acting on behalf of or
under authorization from Sponsor, of products made or developed incorporating
the Study Results or made by a process incorporating the Study Results. This
paragraph shall survive termination of this Agreement.
(b) University agrees, to the extent permitted by the laws of
the State of Texas, to indemnify, hold harmless and defend the Sponsor, its
directors, officers, employees, and agents from and against any and all claims,
suits, losses, damages, costs, fees, expenses (including reasonable attorney's
fees), and other liabilities asserted by third parties, both government and
non-government, resulting from or arising out of the Study carried out pursuant
to this Agreement as a result of the negligence, intentional wrongdoing of
University, its trustees, officers, employees and agents and any and all claims
for bodily injury, death or property damage to employees of University or to any
third party acting on behalf of or under the authorization of University arising
out of the performance of this Agreement, provided, however, that University
shall not be liable for the negligent or intentional acts solely of the Sponsor.
University, its trustees, officers, employees and agents shall incur no
liability under this Section 12(b) with respect to any claims, suits, losses,
damages, costs, fees, expenses (including reasonable attorney's fees), and other
liabilities asserted by third parties, both government and non-government, as a
result of product liability and/or patent infringement.
13. Use of a Party's Name. Neither Party shall, without the prior
written consent of the other Party, use in advertising, publicity, or otherwise,
the name, trademark, logo, symbol, or other image of the Party or that Party's
employee or agent; provided, however, that University acknowledges and agrees
that Sponsor may use University's name and references to this Agreement and
related agreements and the names of the their employees (including, without
limitation, the Principal Investigator) as they may relate to such agreements in
any private placement memorandum, prospectus, registration statement or any
similar disclosure document used by Sponsor for capital raising and financing
purposes as may be required by and in accordance with applicable laws without
such prior written consent.
14. Notice. Any notice or other communication required or permitted
under the Agreement shall be in writing and will be deemed given as of the
date it is received by the receiving Party. Notice shall be given to the
parties at the addresses listed below:
If to University:
▇▇. ▇▇▇▇▇▇▇ ▇. Safe
Texas A&M University
Department of Veterinary Physiology & Pharmacology
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Office of Technology Transfer
Attn: ▇▇▇▇ ▇. Key, III
Technology Licensing Manager
The Texas A&M University System
▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
If to Sponsor:
Dr. ▇▇▇▇ ▇▇▇▇▇
President and Chief Executive Officer
Avax Technologies, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇. ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
15. Modification. Any alteration, modification, or amendment to this
Agreement must be in writing and signed by both parties. No changes in the
Research Protocol will be made unless agreed upon by University, Principal
Investigator, and Sponsor or unless necessary to protect the safety, rights, or
welfare of the patients or research subjects.
16. Assignment. This Agreement and the rights and duties
appertaining thereto may not be assigned by either Party without first
obtaining the written consent of the other. Any such purported assignment,
without the written consent of the other Party, shall be null and of no
effect. Notwithstanding the foregoing, University or Sponsor may assign this
Agreement to the following:
(a) a purchaser, merging or consolidating corporation, or
acquiror of substantially all of University's or
Sponsor's assets or business; or
(b) an Affiliate of University or Sponsor subject to the
consent of the other Party which consent shall not be
unreasonably withheld.
17. Miscellaneous.
(a) Any of the provisions of this Agreement which are
determined to be invalid or unenforceable in any jurisdiction shall be
ineffective to the extent of such invalidity or unenforceability in such
jurisdiction, without rendering invalid or unenforceable the remaining
provisions hereof or affecting the validity or unenforceability of any of the
terms of this Agreement in any other jurisdiction.
(b) The headings and captions used in this Agreement are for
convenience of reference only and shall not affect its construction or
interpretation.
(c) Nothing in this Agreement, express or implied, is intended
to confer on any person other than the parties hereto or their permitted
assigns, any benefits, rights or remedies.
IN WITNESS WHEREOF, the parties, intending to be legally bound, have
caused this Agreement to be executed by their duly authorized representatives.
Sponsor:
AVAX TECHNOLOGIES, INC.
By: /s/ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Title: President and Chief Executive Officer
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Date: 5/12/97
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TEXAS AGRICULTURAL EXPERIMENT
STATION:
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: Chancellor
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Date: 5/12/97
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Acknowledged and Approved:
By: /s/ ▇▇▇▇▇▇ ▇. Safe
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Name: ▇▇. ▇▇▇▇▇▇ ▇. Safe
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Title: Principal Investigator
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Date: 5/12/97
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EXHIBIT A
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ANTIESTROGENIC ACTIVITIES OF ALTERNATED-SUBSTITUTED
ALKYL PCDFs - PROPOSED STUDIES
S. Safe
Department of Veterinary Physiology & Pharmacology
Texas A&M University
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Background
[***]
Proposed Studies
1. [***]
2. [***]
[***] Confidential Treatment Requested
EXHIBIT B
ANNUAL BUDGET
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EST. SALARY
% EFFORT + FRINGE AMOUNT
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PERSONNEL
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Research Assistant for
chemical synthesis 100% $30,000
Graduate research assistant
for biology/toxicology 100% $19,000
Secretarial/data analysis 8% $21,500
SUB-TOTAL $ 51,500
CHEMICALS
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Purchase of chemical intermediates, glassware,
equipment, chromatographic supplies, upgrade
of gas chromatograph, NMR and GC-MS services $ 13,500
ANIMALS
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Cost of carcinogenesis preliminary
toxicology studies $ 10,000
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TOTAL DIRECT COSTS $ 75,000
TOTAL INDIRECT COSTS $ 33,750
========
TOTAL $108,750
ESTIMATED COST FOR A THREE (3) YEAR COMMITMENT $326,250
