EXHIBIT 10.12
THIS ("Agreement" or "") dated as of April 1, 1998 (the "Effective Date") is entered
into by and between GENVEC, INC., a Delaware corporation ("Sponsor"), and
CORNELL UNIVERSITY, a not-for-profit educational institution having corporate
powers under the laws of the State of New York ("University"), for its Medical
College ("Medical College").
WITNESSETH:
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WHEREAS, the Sponsor and the University have previously entered
into that certain effective as of May 18, 1993 (the
"Prior "), pursuant to which Sponsor supported
preclinical research and clinical research at the Medical College in connection
with Gene Therapy (as defined in Appendix 1 hereto), which relationship the
parties wish to extend;
WHEREAS, the Gene Therapy research project that is to be conducted
at the Medical College with the support of the Sponsor is to be jointly
supervised by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, M.D. ("Dr. Crystal"), a Professor of Medicine
at the Medical College and a paid consultant and equity holder of the Sponsor
and Chairman of the Sponsor's Scientific Advisory Board, and by the Medical
College's Chairman of the Department of Medicine (currently ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
M.D. ("▇▇. ▇▇▇▇▇▇▇")), all as permitted by and in accordance with applicable
Laws and University Policies (as defined in Appendix 1 hereto);
WHEREAS, the Sponsor has entered into an Amended and Restated
Exclusive License Agreement in the form attached as Exhibit A hereto ("License
Agreement") with the Cornell Research Foundation, Inc. ("Foundation"), a wholly
owned subsidiary of the University;
WHEREAS, the Gene Therapy discoveries and inventions made during
the course of the Sponsored Research (as defined in Appendix 1 hereto), as
contemplated by this Agreement, are of mutual interest and benefit to the
University and to the Sponsor, will further instructional and research
objectives of the University in a manner consistent with its status as a not-
for-profit tax-exempt educational institution, and may constitute benefits for
both the Sponsor and the University (including, without limitation, the Medical
College) through inventions, improvements, and discoveries;
NOW THEREFORE, in consideration of the premises and mutual
covenants herein contained, the parties hereto agree to the following:
1. DEFINITIONS
Capitalized terms used in this Agreement and set forth in Appendix 1
hereto shall have the meanings set forth in such Appendix 1.
2. SCOPE AND PERFORMANCE OF WORK
The University shall commence the performance of the Sponsored Research
on the Effective Date, and, concurrently with compliance by Sponsor with all
terms (including payment terms) of this
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
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Agreement, agrees to use reasonable efforts to perform the Sponsored Research
in accordance with the terms and conditions of this Agreement.
3. PRINCIPAL INVESTIGATORS
3.1 SUPERVISION OF THE SPONSORED RESEARCH
As described in the Crystal Appointment Letter, Dr. Crystal and
the Chairman shall jointly supervise the Sponsored Research. Initial (including
"Phase I", and/or "Phase I/II", if approved by the Medical College) human
feasibility trials with respect to the Sponsored Research may take place at the
University (including the Medical College), at affiliated hospitals, clinics, or
other institutions affiliated with the Medical College, under the direction of
the Principal Investigators. Any Phase II and Phase III trials will take place
entirely under the supervision of independent investigators who are not and have
not been associated with the Sponsored Research. The parties hereto acknowledge
and agree that the Crystal Appointment Letter has been approved by the Medical
College, the University, The New York Hospital, and all applicable internal
review boards of such bodies, including, without limitation, those charged with
responsibility for administration of the University's conflict of interest
policies, as of the date of this Agreement, subject, however, to any changes in
such approvals and policies as the University or such other entities or boards
may determine to be necessary or advisable.
3.2 CHANGE IN PRINCIPAL INVESTIGATORS
In the event that Dr. Crystal dies, becomes disabled such that he
cannot continue his employment at the Medical College, terminates his employment
at the Medical College, or his employment at the Medical College is otherwise
terminated, either party to this Agreement shall have the option to terminate
this Agreement and the Sponsored Research in the manner provided in Section 8.
If ▇▇. ▇▇▇▇▇▇▇ dies, becomes disabled such that he cannot continue his
employment at the Medical College, terminates his employment at the Medical
College, or his employment at the Medical College is otherwise terminated, or
otherwise is unable or unwilling to continue to serve as co-Principal
Investigator with respect to the Sponsored Research, the successor to
▇▇. ▇▇▇▇▇▇▇ as Chairman shall serve as co-Principal Investigator with
Dr. Crystal, unless the University shall have designated another member of its
faculty reasonably acceptable to Sponsor and to Dr. Crystal to serve as the co-
Principal Investigator with Dr. Crystal; provided, however, that if such
Chairman or other faculty member has any consulting or other commercial
relationship with a competitor of Sponsor in the gene therapy field, the
University, upon notice of objection from Sponsor, shall designate another
member of its faculty, reasonably acceptable to Sponsor and Dr. Crystal, without
such relationship, to serve as co-Principal Investigator.
4. PERIOD OF PERFORMANCE
The period of performance under this Agreement will terminate on
April 1, 2002, unless earlier terminated pursuant to this Agreement or extended
by written agreement of the parties.
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5. PAYMENTS
5.1 SPONSOR PAYMENTS
The Sponsor agrees to make payments to the University (on behalf of
the Medical College) for certain costs of the Sponsored Research in accordance
with the payment schedule attached as Exhibit B hereto ("Sponsor Payments"),
subject to and in accordance with the terms of this Agreement. Sponsor Payments
shall be used over the term of this Agreement [*], unless the parties agree
otherwise pursuant to Section 5.2. All checks (or electronic funds transfers)
shall be made payable to Cornell University Medical College and sent to the
address specified in Section 19.6. Within ninety (90) days after termination of
this Agreement, the University shall submit a final financial report setting
forth costs incurred. The report shall be accompanied by a check in the amount,
if any, of the excess of Sponsor Payments received by the University over costs
actually incurred by or on behalf of the University in connection with the
Sponsored Research.
5.2 ADDITIONAL PAYMENTS
It is agreed to and understood by the parties that the aggregate
amount of the Sponsor Payments is an estimate of the cost of the Sponsored
Research, but that the Sponsor shall not be liable for any payments or costs in
excess of the Sponsor Payments unless the Sponsor shall have previously agreed
in writing to provide additional funds. Funding for work to be performed during
a period beyond that set forth in Section 4, or for work in addition to the
Sponsored Research, shall be agreed to by the Sponsor and the University in
writing prior to the initiation of any such work.
5.3 UNIVERSITY BOOKS AND RECORDS
The University shall maintain records and books of account
relating to this Agreement in accordance with its normal course of business,
University Policies, and prevailing University accounting practices, and shall
make such records and books available to Sponsor upon reasonable notice during
normal business hours, but not more frequently than once every four (4) months.
The University shall maintain scientific records that will
properly reflect all work done, and data and results achieved in the performance
of the Sponsored Research (including all data in the form required under any
applicable governmental regulations) in a manner sufficient to establish the
dates of first conception and reduction to practice of any inventions.
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5.4 SPONSOR PAYMENTS
Any funds paid to the University pursuant to the Prior which were not expended as of the Effective Date hereof shall
be used to support the Sponsored Research subject to this Agreement. Such funds
shall be additional to the payments due pursuant to Section 5.1, but otherwise
shall be treated as Sponsor Payments for all purposes of this Agreement.
5.5 OTHER FUNDS
The University shall not use funds from any commercial third party
to support any aspect of the Sponsored Research without the prior written
consent of Sponsor.
6. INVENTIONS AND PATENTS
The Medical College shall disclose all Sponsored Research Intellectual
Property Rights to the Sponsor as promptly as practicable upon receipt of such
disclosure, but in no event later than [*] after the inventor discloses it in
writing to the Medical College personnel responsible for patent matters. The
Principal Investigators shall ensure that all such Sponsored Research
Intellectual Property Rights are promptly disclosed to the Medical College in
writing. The disclosure to the Sponsor shall be in the form of a written report
and shall identify the inventor(s) and this Agreement as being that under which
such invention was made. Such report shall be sufficiently complete in technical
detail to convey a clear understanding, to the extent known at the time of the
disclosure, of the nature, purpose, operation, and the physical, chemical,
biological, or electrical characteristic of the invention. To afford the parties
a reasonable opportunity to preserve their intellectual property rights, without
the parties' written consent neither the Medical College nor the Sponsor shall
disclose such Sponsored Research Intellectual Property Rights to third parties
for at least [*] after the date of such disclosure to the Sponsor pursuant to
this Section 6; provided that during such [*] day period and thereafter the
Sponsor may disclose such Sponsored Research Intellectual Property Rights to a
corporate partner of Sponsor which is entitled to a sublicense of all or part of
the Sponsored Research Intellectual Property Rights, if such corporate partner
and Sponsor have a written agreement of confidentiality consistent with the
provisions hereof. Any disclosures made pursuant to this Section 6 shall also
comply with Section 10 hereof with respect to any proposed publication, sale, or
public use of the invention and shall disclose whether a manuscript describing
the invention has been prepared and is proposed to be submitted for publication
or presentation. Title to reported inventions will be held in accordance with
Section 16.1. Within [*] of receipt of the invention report, the Sponsor may
notify the University, in writing, that it elects to license such reported
invention to the extent permitted by, and in accordance with the terms of, the
License Agreement. Notwithstanding this Section 6 or any other provision of this
Agreement, however, except to the extent the same are included within Sponsored
Research Intellectual Property Rights, the parties agree that this Agreement
does not authorize or compel the disclosure to the Sponsor of information
regarding research designs, methods, proposals, findings, or similar information
or data of investigators (or other University employees) not employed in Dr.
Crystal's laboratory and under the joint supervision of Dr. Crystal and the
Chairman (even though the Sponsor's funds may have been used to provide
ancillary noninventive services or equipment to such inventor or other
employee).
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7. PROPRIETARY INFORMATION
The Medical College's acceptance and use of any proprietary information
or proprietary biological materials that may be supplied by the Sponsor in the
course of this research project shall be subject to the following:
(i) The Sponsor shall ▇▇▇▇ or designate in writing the information or
biological materials as being proprietary to the Sponsor or, where
appropriate, to a sublicensee of Sponsor.
(ii) The Medical College retains the right to refuse to accept any such
information or biological materials that it does not consider to be essential
to the completion of the Sponsored Research or that it believes to be
improperly designated, for any reason.
(iii) Where the Medical College does accept such information, it agrees
to use reasonable efforts not to publish or otherwise reveal the information
to others outside the Medical College without the permission of the Sponsor,
unless the information has already been published or disclosed, or the
information has already been independently developed, in each case by third
parties or is or are required to be disclosed or delivered by order of a court
of law or regulatory agency.
(iv) Where the Medical College does accept such biological materials,
their use shall be subject to the terms of the Material Transfer Agreement
entered by Sponsor and the Medical College effective December 19, 1996 (the
"Material Transfer Agreement"), a copy of which is attached hereto as Exhibit
C.
8. TERMINATION
8.1 TERMINATION EVENTS
This Agreement may be terminated (prior to the expiration of its
term pursuant to Section 4) at any time by one party, upon written notice to the
other party, upon the occurrence of any of the following events:
(i) either party may terminate the Agreement if Dr. Crystal dies,
becomes disabled such that he cannot continue his employment at the Medical
College, terminates his employment at the Medical College, or his employment
at the Medical College is otherwise terminated;
(ii) either party may terminate the Agreement if, in the reasonable
judgment of the terminating party, termination is necessitated by reason of a
change in Laws; provided, however, that the Sponsor shall not use as a ground
of termination such a change which could be cured by a revision of Dr.
Crystal's relationship with the Sponsor;
(iii) a party may terminate the Agreement if it has a reasonable
basis to believe that the other party has engaged in unlawful, unethical, or
seriously inappropriate conduct such that continued performance of the
Agreement would affront legitimate interests of the terminating party; or
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(iv) a party may terminate the Agreement if the other party has
committed a material breach of the terms of this Agreement or the License
Agreement and has failed to remedy such breach within [*] in relation to a
payment-related breach, and [*] in relation to other breaches, following written
notice thereof. For purposes of this Section 8, a failure by the Sponsor to make
any payment required pursuant to Section 5 shall be deemed a material breach.
(v) In the event that a party intends to terminate the Agreement
under Section 8.1(ii), (iii) or (iv), the party shall give written notice to
that effect to the other party, which notice shall effect forthwith suspension
of future performance of the Agreement. The party so notified may initiate
arbitration under Section 19.5, by filing a request for arbitration with the
American Arbitration Association, not later than [*] thereafter, and termination
shall occur if (a) arbitration is not so initiated, or (b) the arbitrator finds
that termination was reasonable.
(vi) Sponsor may provide notice of termination any time for any
reason after [*] and in any such case, such termination will be effective [*]
thereafter.
8.2 TERMINATION CONSEQUENCES
In the event of early termination of this Agreement by the Sponsor
pursuant to Section 8.1, or by the University pursuant to Section 8.1(ii),
(iii), or (iv), the Sponsor shall remit to the University funds in payment of
(a) all internal and external costs and non-cancelable obligations, including
future costs and obligations, incurred as of the date of termination by the
University incident to the Sponsored Research (including, without limitation,
rent, personnel costs, facilities costs, and other costs) until such time as the
University, exercising its best efforts, shall eliminate such costs (or utilize
such personnel and facilities in other endeavors), and (b) any other amounts
that have accrued under this Agreement as of the date of such termination. With
respect to all payments by the Sponsor required by this Section 8.2, in no event
shall the liability of the Sponsor for Sponsor Payments in connection with the
Sponsored Research exceed [*] or such other amount as the parties hereto
have agreed upon pursuant to Section 5. Any and all Sponsored Research
Intellectual Property Rights conceived or reduced to practice or otherwise
developed prior to the effective date of such termination shall remain subject
to the terms of the License Agreement, which shall remain in effect until and
unless terminated under its terms.
9. PUBLICITY
The parties acknowledge their mutual intention to announce major
scientific discoveries to the public on a prompt and cooperative basis,
consistent with the terms of this Section 9 and other provisions of this
Agreement. The parties agree that neither the University nor any employee
thereof shall in any way promote, or participate or be used or referred to in
connection with the promotion of the Sponsor or any of Sponsor's products,
securities, or marketing efforts, and that neither party shall use the
existence or terms of this Agreement, any results of the Sponsored Research,
or the name of the other party (or any employee or affiliate thereof) in any
public disclosure, advertising, news release, or other statement that is or
may become public or available to a third party, in each case except as and to
the extent (i) required by Laws (including Securities Laws), (ii) permitted by
Section 10, (iii) permitted by
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Section 6, or (iv) with the prior written consent of, and only to the extent
approved by, the other party (which consent shall, in the case of the
University, be signed by the ▇▇▇▇ of the Medical College and by University
counsel). Notwithstanding the above, once a particular disclosure has been
approved, either party may make disclosures which do not differ materially
therefrom without any further consents of the other party; provided, however,
that the disclosing party shall give prior notice of subsequent disclosures
which, in addition to the information contained in the earlier disclosure,
contains information subject to this Agreement which has not been previously
disclosed; and provided, further, that after approval of a disclosure has been
given, the approving party may at any time with written notice to the other
party withdraw its approval of a particular disclosure prior to its release,
which withdrawal shall be effective immediately. With respect to the
requirements of Securities Laws, counsel to the underwriters or placement
agents of Sponsor's securities may advise Sponsor that Sponsor may be required
to disclose material terms of this Agreement and the License Agreement. In
such event, Sponsor shall so notify the University within a reasonable time
prior to such disclosure, and the University shall have the opportunity to
dissuade such counsel of the need for such disclosure. With respect to any
such prospective disclosure, Sponsor shall use its reasonable efforts, unless
the University otherwise consents, not to use the name of the University, and
to seek "Confidential Treatment" under applicable Securities and Exchange
Commission rules and procedures with respect to any terms of this Agreement
and the License Agreement for which the University wishes to obtain
confidential treatment. Laboratory personnel, including Dr. Crystal, will not
engage in solicitation of the sale of securities of Sponsor, but may, to the
extent that doing so does not, in the University's judgment, unreasonably
interfere with their work, participate in connection with the due diligence
investigations of potential investors and underwriters of securities of
Sponsor in describing the Gene Therapy research and may, to the same extent,
respond to questions from such persons.
10. PUBLICATIONS
10.1 RIGHT TO PUBLISH; PROCEDURES
The University shall have the right, subject to compliance with
the provisions of this Agreement, at its discretion to release information or to
publish any material resulting from the Sponsored Research, and the Sponsor
agrees that the Principal Investigators and other researchers engaged in the
Sponsored Research shall be permitted to present at national, regional and other
professional meetings and symposia, and to publish in journals, theses or
dissertations, or other materials of their own choosing, the progress and
results of the Sponsored Research. The University agrees to furnish the Sponsor
with a copy of any proposed written publication at least [*] in advance of the
submission of such proposed publication or other written description of research
results to a journal, editor or other third party, in order for the Sponsor to
have an opportunity to begin to seek appropriate legal protection for the
subject matter contained in the proposed publication or description. If due to a
valid business reason or a reasonable belief by the non-disclosing Party that a
disclosure relating to the Sponsored Research contains subject matter for which
a patent should be sought, then prior to the expiration of the [*] period, the
non-disclosing party shall so notify the disclosing party, who shall then delay
public disclosure of the information for an additional period of up [*] to
permit the preparation of filing of a patent application on the subject matter
to be disclosed or other action to be
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taken. The Sponsor shall cooperate with the University and the Foundation, at
their request, in the patenting process.
10.2 ACKNOWLEDGMENT OF THE SPONSOR
The Sponsor will be given full credit and acknowledgment for the
support provided to the University in any publication resulting from the
Sponsored Research, to the extent Sponsor consents to such credit or
acknowledgment, or such publication requires the same, or the University desires
to list Sponsor in any reports of University's sponsored research projects.
11. REPORTS AND CONFERENCES
11.1 PROGRESS AND FINAL REPORTS TO THE SPONSOR
The University shall furnish the Sponsor letter reports during the
term of this Agreement summarizing the work conducted with respect to the
Sponsored Research, no more frequently than once every four (4) months. A final
written report setting forth and detailing the accomplishments and significant
findings shall be submitted by the University within [*] of the termination of
this Agreement.
11.2 MEETINGS BETWEEN THE UNIVERSITY AND THE SPONSOR
During the term of this Agreement, representatives of the
University will meet with representatives of the Sponsor at times and places
mutually agreed upon to discuss the progress and results, as well as ongoing
plans, or changes therein, of the Sponsored Research to be performed hereunder.
The Sponsor shall reimburse the University for all reasonable out-of-pocket
expenses incurred by the University and University employees in connection with
any such meetings that are held at locations other than the Medical College.
12. CHANGES
Anything in this Agreement to the contrary notwithstanding, Sponsor and
the Medical College may at any time amend or extend the Sponsored Research by
mutual written agreement (which, in the case of the Medical College, shall be
signed by the ▇▇▇▇ of the Medical College), and incorporate such amendment as
an attachment and exhibit to this Agreement. Such changes may include, but are
not limited to, (i) revising (including, without limitation, additions to or
deletions from) the work included in the Sponsored Research, (ii) revising the
period or schedule of performance under Section 4 or as set forth in Exhibit
B, or (iii) increasing or decreasing the Sponsor Payments. Upon any such
change, the parties shall immediately use their best efforts to take all
necessary steps to comply therewith.
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13. SPONSOR MATERIALS
Upon the request of the Medical College, the Sponsor agrees to accept
the return of unused portions of any drugs, chemicals, and other materials
supplied by the Sponsor in connection with the Sponsored Research or
Biological Materials provided pursuant to the Material Transfer Agreement
("Sponsor Materials"), including the containers in which the Sponsor Materials
are shipped, provided that the Sponsor Materials and containers are properly
labeled. The Sponsor agrees to furnish the Medical College with sufficient
information regarding all such Sponsor Materials to permit reasonable
interpretation of the results obtained in the Sponsored Research and to
identify precautions needed to help protect the health and safety of personnel
using the Sponsor Materials. The Sponsor agrees to indemnify and defend the
University (including, without limitation, the Medical College), affiliated
hospitals, clinics, and other institutions affiliated with the Medical
College, and the officers, trustees, agents, and employees of each of them,
and hold them harmless from any and all injury, illness, death, property
damage, claim, lawsuit, judgment thereon, or cause of action that results
either in whole or in part from the use of the Sponsor Materials (each a
"Claim"), not arising from the indemnified party's gross negligence or willful
misconduct, if such use was pursuant to Sponsor's directions or was reasonable
under the circumstances. The University shall promptly notify Sponsor of any
such Claim for which the University intends to claim indemnification, and
cooperate fully with Sponsor and its attorneys in the investigation, conduct,
defense and settlement of any such Claim.
14. INDEMNIFICATION
The Sponsor agrees to indemnify and defend the University (including the
Medical College), and affiliated hospitals, clinics, or other institutions
affiliated with the Medical College, and the officers, trustees, agents, and
employees of each of them, and hold them harmless from any and all costs,
expenses, and damages, not arising from the indemnified party's gross
negligence or willful misconduct, arising out of any injury, illness, death,
property damage, claim, lawsuit, judgment thereon, or cause of action (each, a
"Claim") to the extent that these result either in whole or in part from
action or inaction on the part of, or on behalf of, the Sponsor in connection
with the conduct of the Sponsored Research. The University shall promptly
notify Sponsor of any such Claim for which the University intends to claim
indemnification, and cooperate fully with Sponsor and its attorneys in the
investigation, conduct, defense and settlement of any such Claim.
15. INSURANCE
Within [*] after the date of this Agreement, the Sponsor shall provide to
the University evidence that the Sponsor has liability insurance of at least
[*]. Such evidence shall be in the form of a certificate of insurance or, in the
case of self-insurance, a letter accompanying the Sponsor's audited financial
statements in which an authorized official of the Sponsor certifies that the
Sponsor has sufficient assets to cover potential costs and losses that might
arise in connection with the Sponsor's obligations hereunder.
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16. TITLE TO EQUIPMENT, RESEARCH DATA AND INTELLECTUAL PROPERTY RIGHTS
16.1 PROPERTY OF THE UNIVERSITY
Title to all (a) equipment, laboratory animals, and other
materials or property purchased or manufactured in the performance of the
Sponsored Research (collectively, "Research Equipment") funded under this
Agreement and research data (including, without limitation, data contained in
any publication made pursuant to Section 10 hereof and resulting from the
Sponsored Research) shall vest in the University and shall remain the property
of the University in a manner consistent with University Policies and customs
with respect thereto, and (b) any intellectual property first conceived or
discovered in the performance of the Sponsored Research shall vest in
accordance with the then-prevailing United States laws of inventorship. The
Sponsor shall have the right to receive and use, subject to the applicable
terms of the License Agreement, breeding pairs of animals and other biological
materials developed in connection with the Sponsored Research and copies of
any research data relating to the Sponsored Research on reasonable request and
notice, and upon reimbursement by the Sponsor of the University's reasonable
costs incurred in connection with copying and providing such research data,
animals and other biological materials to the Sponsor. Copyright to materials,
including computer software, first created during the performance of the
Sponsored Research work funded under this Agreement shall vest in accordance
with the University's copyright policy, and the Sponsor shall have no rights
thereto, except to the extent provided in the License Agreement.
16.2 GOVERNMENT RIGHTS
An agency of the U.S. Government may have certain rights in an
invention first conceived or discovered during the performance of the Sponsored
Research work funded under this Agreement. The University will use reasonable
efforts to perfect its ownership in any invention made with funds provided by
any government agency and to comply with applicable law in maintaining such
rights and to make available to the Sponsor any rights in such invention.
17. ACKNOWLEDGMENT AND UNDERTAKING RESPECTING DR. CRYSTAL
Sponsor hereby acknowledges that it has been informed of the terms and
conditions of the employment of Dr. Crystal at the Medical College, as set
forth in the Crystal Appointment Letter (including, without limitation,
paragraphs 1A-N and the other provisions of Appendix A thereto), and Sponsor
agrees that it will use reasonable care such that nothing requested by Sponsor
of Dr. Crystal will violate any of the duties or obligations of Dr. Crystal to
the University. Nothing in this Agreement or in the License Agreement, or in
any agreement, undertaking, or understanding to which the Sponsor is party,
shall impair the rights of the University or the Principal Investigators to
determine the nature of performance of Sponsored Research, or Dr. Crystal's
other research at the University, in a manner consistent with University
Policies. The University undertakes to notify Sponsor of any changes in the
terms and conditions of Dr. Crystal's employment material to Sponsor, in the
University's reasonable judgement.
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18. ENFORCEMENT OF UNIVERSITY RULES AND THIS AGREEMENT
The University shall use its best efforts to enforce observance by all
University personnel engaged in the Sponsored Research with respect to
University Policies. The Sponsor shall cooperate with University in complying
with University Policies and applicable Laws. The University shall use
reasonable efforts to enforce observance, by all University personnel engaged
in the Sponsored Research, of this Agreement.
19. OTHER PROVISIONS
[*]
19.2 NO CONFLICTS
The Sponsor represents and covenants that there are no
obligations, undertakings, representations, warranties, covenants, conditions,
rights, recitals or other statements by or applicable to the University,
Dr. Crystal, or the Sponsored Research (collectively, "Terms") contained in any
of its arrangements, understandings or agreements with Dr. Crystal
(collectively, the "Other Arrangements") that Conflict with any Terms of this
Agreement. For purposes of this Agreement, the word "Conflict" shall include,
without limitation, any case in which (1) performance of a Term in one agreement
would result in a breach or violation of any present or future agreement or
obligation, written or oral, in connection with a Term in another agreement, and
(2) a Term in one agreement could not be carried out as a legal and/or practical
matter consistently with a Term of another agreement absent an amendment to,
waiver of, or potential liability under, such other agreement. The Sponsor
covenants and agrees that it will not knowingly cause or permit any Conflict to
exist between a Term of this Agreement, on the one hand, and a Term of any Other
Agreement, on the other hand, and that, insofar as any Conflict exists at any
time, the Sponsor will seek to cause such Conflicting Term in the Other
Agreement to be waived, amended or rendered null and void, to the extent
necessary to remedy the Conflict.
19.3 NO AGENCY
Neither party is authorized or empowered to act as an agent for
the other for any purpose. Neither party shall, on behalf of the other, enter
into any contract, warranty, or representation as to any matter. Neither party
shall be bound by the acts or conduct of the other.
19.4 FORCE MAJEURE
Neither the University nor the Sponsor shall be liable for any
failure to perform as required by this Agreement, to the extent such failure to
perform is caused by any reason beyond the control of the University or the
Sponsor, as applicable, or by reason of any of the following occurrences, labor
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disturbances or labor disputes of any kind, accidents, failure of any
governmental approval required for full performance, civil disorders or
commotions, acts of aggression, floods, earthquakes, acts of God, energy or
other conservation measures, explosion, failure of utilities, mechanical
breakdowns, material shortages, disease or other such occurrences (collectively,
"Force Majeure Conditions"); provided, however, that nothing in this
Section 19.4 shall excuse any delay or failure on the part of the Sponsor to
make the Sponsor Payments on a timely basis pursuant to the terms of this
Agreement. In the event of any delayed or excused performance pursuant to this
Section 19.4, the party or parties whose performance was delayed or excused
shall use reasonable efforts to perform as promptly and fully as practicable,
and the parties shall take all other reasonable and cooperative steps to
effectuate the transactions contemplated by this Agreement. If one or more
Force Majeure Conditions cause the University to be unable to conduct Sponsored
Research for at least two consecutive weeks, the obligation of Sponsor to make
Sponsor Payments shall be diminished by [*] for each such week. In the event
that there are more than [*] such weeks, either party may elect to terminate the
Agreement under the provisions of Section 8.1(iv), as if such circumstance were
a material breach thereunder and as if the University were the terminating party
thereunder.
19.5 ARBITRATION
Any dispute arising out of or relating to this Agreement or any
breach of this Agreement, including, without limitation, any disagreement by the
terminated party with respect to termination of this Agreement pursuant to
Sections 8.1(ii), (iii) or (iv) shall be submitted to and determined in binding
arbitration, which shall be conducted in accordance with the then-current rules
and procedures of the American Arbitration Association, subject to the
provisions of this Section 19.5. The arbitration shall be conducted before and
by a single neutral arbitrator with relevant expertise selected by the parties.
If the parties have not selected an arbitrator within [*] after delivery to the
other party of one party's written demand for arbitration, the arbitrator shall
be selected by the American Arbitration Association pursuant to then-current
rules of that Association. The arbitrator shall have authority to fashion such
just, equitable and legal relief as he, in his sole discretion, may determine,
including, without limitation, specific performance, injunctive or other
equitable relief. Each party shall bear all its own expenses of arbitration and
shall equally share the costs (i.e., arbitrators fees and administrative
charges) of conducting the arbitration. All arbitration proceedings shall be
conducted in New York, New York. The parties shall abide by the terms of any
arbitration award as final and binding under the prevailing rules of said
Association, and judgment upon the award may be had in any court having
jurisdiction. The duty to arbitrate shall survive the cancellation or
termination of this Agreement.
19.6 NOTICES
All notices, demands, requests or other communications which may
be or are required to be given, served, or sent by the University or the Sponsor
pursuant to this Agreement shall be in writing and shall be hand delivered
(including delivery by courier), sent by recognized overnight courier service,
mailed by first-class, registered or certified mail, return receipt requested,
postage prepaid, or transmitted by telegram, telex or facsimile transmission,
addressed as follows:
[*] CERTAIN INFORMATION IN THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
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(i) If to the University:
Senior Associate ▇▇▇▇ for Research
and Sponsored Programs
Cornell University Medical College
Room A131
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy (which shall not constitute notice) to:
Office of University Counsel
Cornell University Medical College
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) If to the Sponsor:
President
GENVEC, INC.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With a copy to: Vice President, Corporate Development
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Notwithstanding the foregoing, each party may designate by notice in writing a
new address or facsimile number to which any notice, demand, request, or
communication may thereafter be so given, served, or sent. Each notice, demand,
request, or communication which shall be delivered, sent, mailed, or transmitted
in the manner described above, shall be deemed sufficiently given, served, sent,
or received for all purposes at such time as it is delivered to the addressee
(with an affidavit of personal delivery, the return receipt, the delivery
receipt, or (with respect to a telex or facsimile) the answer back being deemed
conclusive but not exclusive evidence of such delivery) or at such time as
delivery is refused by the addressee upon presentation.
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19.7 SURVIVAL
It is the express intention and agreement of the parties that all
covenants, agreements, statements, representations, warranties and indemnities
made in this Agreement shall survive the execution and delivery of this
Agreement.
19.8 WAIVER
Neither the waiver by either party of a breach of or a default
under any of the provisions of this Agreement, nor the failure of a party, on
one or more occasions, to enforce any of the provisions of this Agreement or to
exercise any right, remedy, or privilege hereunder shall thereafter be construed
as a waiver of any subsequent breach or default of a similar nature, or as a
waiver of any such provisions, rights, remedies, or privileges hereunder.
19.9 EXERCISE OF RIGHTS
No failure or delay on the part of a party in exercising any
right, power, or privilege hereunder and no course of dealing between the
parties shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, power, or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right, power, or
privilege. The rights and remedies herein expressly provided are cumulative and
not exclusive of any other rights or remedies which a party would otherwise have
at law or in equity or otherwise.
19.10 BINDING EFFECT
Subject to the provisions hereof restricting assignment, this
Agreement shall be binding upon and shall inure to the benefit of the parties
and their respective successors and permitted assigns.
19.11 [*]
19.12 ENTIRE AGREEMENT
This Agreement and the License Agreement (including all exhibits
and appendices to each such agreement) and the Crystal Appointment Letter
contain the entire agreement between the parties with respect to the
arrangements contemplated hereby and thereby and supersede any and all prior
[*] CERTAIN INFORMATION IN THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
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understandings or agreements between the parties with respect to such
arrangements; provided, the terms of the Material Transfer Agreement shall not
be amended or effected in any way by the execution of this Agreement or the
License Agreement. No amendments or changes to this Agreement shall be
effective unless made in writing and signed by the ▇▇▇▇ of the Medical College
and authorized representatives of the Sponsor. All correspondence regarding
terms of this Agreement shall be sent as specified in Section 19.6.
19.13 PRONOUNS
All pronouns and any variations thereof shall be deemed to refer
to the masculine, feminine, neuter, singular, or plural, as the identity of the
person or entity may require.
19.14 HEADINGS
Article and Section headings contained in this Agreement are
inserted for convenience of reference only, shall not be deemed to be a part of
this Agreement for any purpose, and shall not in any way define or affect the
meaning, construction of scope of any of the provisions hereof.
19.15 GOVERNING LAW
This Agreement, the rights and obligations of the parties hereto,
and any claims or disputes relating thereto, shall be governed by and construed
in accordance with the laws of the State of New York (but not including the
choice of law rules thereof).
19.16 NONDISCRIMINATION
The University and the Sponsor shall not discriminate against any
employee or applicant for employment because of race, religion, national origin,
sex, age, or physical limitation.
19.17 EXECUTION IN COUNTERPARTS
This Agreement may be executed in as many fully executed
counterparts as may be convenient.
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IN WITNESS WHEREOF, the parties and persons named below have
executed this Agreement, or caused this Agreement to be executed on their
behalf, as of the date first set forth above.
GENVEC, INC. CORNELL UNIVERSITY, FOR ITS MEDICAL
COLLEGE
------------------------------------ ------------------------------------
By: ▇▇▇▇ ▇▇▇▇▇▇▇, Ph.D. By:
President
Acknowledged and agreed as to roles
as Principal INVESTIGATORS:
------------------------------------
▇▇▇▇▇▇ ▇. Crystal, M.D.
Chairman of the Department of Medicine of the Medical College
------------------------------------
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, M.D.
Exhibit A: Amended and Restated Exclusive License Agreement is
------------------------------------------------
attached as Exhibit 10.13 to this Amendment No. 2.
[*]
[*] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
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