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EXHIBIT 10.2
[NOTE: CERTAIN PORTIONS OF THIS DOCUMENT HAVE BEEN MARKED TO INDICATE THAT
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR CONFIDENTIAL INFORMATION. THE
CONFIDENTIAL PORTIONS HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION.]
DEVELOPMENT SERVICES AGREEMENT
THIS AGREEMENT, made and entered into as of this 25th day of September,
2000, by and between Hemomax, LLC, a Pennsylvania limited liability company (the
"Company"), and Alteon Inc., a Delaware corporation ("Alteon").
BACKGROUND
The Company wishes to obtain development services in connection with
the further development of the Hemomax Technology. The Hemomax Technology was
developed, and is owned, by the University of Pittsburgh, and the Company has
obtained a worldwide, exclusive license to exploit such technology.
Alteon wishes to provide such development services to the Company
subject to the terms and conditions of this Agreement.
The parties are entering into a separate Membership Unit Subscription
Agreement dated the date hereof, pursuant to which Alteon will receive shares of
Membership Units in the Company, as partial consideration for agreeing to make
available and for carrying out the services provided under this Agreement. Such
Membership Units will confer on Alteon the same rights and preferences with
respect to such Membership Units as those enjoyed by the founding unitholders of
the Company.
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AGREEMENT
NOW, THEREFORE, it is agreed as follows:
1. DEFINITIONS
1.1. "Affiliate" of an entity means any person, corporation,
partnership, limited liability company, trust or other entity which, directly or
indirectly, controls, is controlled by, or is under common control with such
entity.
1.2. "First Vesting Event" means the first to occur of the following:
(1) a Sale Event, or (2) completion of the Preliminary Evaluation as evidenced
by a written Preliminary Evaluation report presented to and accepted by the
Board of Managers of the Company.
1.3. "Hemomax Technology" shall mean any product or part thereof or
process which is:
(a) Covered in whole or in part by an issued, unexpired or
pending claim contained in the Patent Rights in the country in which any such
product or part thereof is made, used or sold or in which any such process is
used or sold;
(b) Manufactured by using a process or is employed to practice
a process which is covered in whole or in part by an issued, unexpired claim or
a pending claim contained in the Patent Rights in the country in which any such
process that is included in Hemomax Technology is used or in which such product
or part thereof is used or sold; or
(c) Created, discovered, developed or invented at any time
prior to, on, or after the date of this Agreement relating to, based on, or
incorporating Hemomax Technology or the Patent Rights, or arising out of the
services performed by Alteon hereunder.
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1.4. "Patent Rights" shall mean:
(a) The United States and foreign patents and/or patent
applications listed in Schedule 1.4;
(b) United States and foreign patents issued from the
applications listed in Schedule 1.4 and from divisionals and continuations and
continuations-in-part of these applications;
(c) Claims of U.S. and foreign continuation-in-part
applications, and of the resulting patents, which are directed to subject matter
specifically described in the U.S. and foreign applications listed in Schedule
1.4;
(d) Claims of all foreign patent applications, and of the
resulting patents, which are directed to subject matter specifically described
in (a), (b) or (c) above.
1.5. "Preliminary Evaluation" shall have the meaning set forth on
Schedule 2.1 hereto.
1.6. "Product" means a product or service which employs, embodies or
relates to Hemomax Technology.
1.7. "Sale Event" shall be deemed to occur if any one or more of the
following occur(s):
(1) the Company sells, transfers, licenses, assigns, or
otherwise disposes of the Hemomax Technology or any portion thereof or interest
therein, including without limitation transfers to an Affiliate of the Company;
(2) a merger or consolidation of the Company with or into
another entity, a sale of all or substantially all of the assets of the Company
to another entity, a sale of a majority of the voting power of the outstanding
membership interests of the Company, or any other
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transaction which results in a change of ownership or control over the Company
or the Hemomax Technology.
1.8. "Second Vesting Event" means the first to occur of the following:
(1) a Sale Event; or
(2) the completion of Phase II described in Schedule 2.1 and
the delivery of the Technology Development Plan to the Board of Managers and the
Board's acceptance thereof.
1.9. "Technology Development Plan" shall mean the written plan
created after implementing the Preliminary Evaluation, presented by Alteon to
the Hemomax Board of Managers and accepted by the Board.
1.10. "Third Vesting Event" means (1) a Sale Event or (2) the
filing of an IND for a Product.
1.11. "University" means the University of Pittsburgh - of the
Commonwealth System of Higher Education, a Pennsylvania nonprofit corporation.
2. DEVELOPMENT SERVICES.
2.1. FURNISHING OF SERVICES. Alteon shall provide consulting
services to Hemomax for developing a strategic direction and a development plan
for the Hemomax Technology. After a phased plan has been identified by Alteon
and approved by the Company, Alteon shall implement the plan by managing the
performance of the necessary work. Alteon shall keep the Company informed
throughout the work and shall involve the Company when important decisions are
made in implementing the plan or at such times as are otherwise requested by the
Company. Alteon shall furnish to the Company the services described in Schedule
2.1. Alteon's
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Services may be performed at Alteon or at any other location in Alteon's
reasonable, sole discretion.
2.2. REPORTING. Alteon shall provide written progress reports to
Company as often as reasonably necessary to permit Company to consider any
significant issues and approve any recommendations for implementation. Alteon
shall consult with the Company at mutually agreeable times as reasonably
requested by the Company.
3. COMPANY PROGRAM MANAGER. The Company shall appoint a program manager
("Program Manager") to act as a liaison and single point of contact
regarding contractual matters between Alteon and the Company.
4. ALTEON EMPLOYEES AND CONSULTANTS.
4.1. IDENTIFICATION OF EMPLOYEES AND CONSULTANTS. Alteon shall provide
to the Company the services of the following employees and consultants of
Alteon: Robert deGroof, Ph.D., who is Alteon's Senior Vice President, Scientific
Affairs ("Dr. deGroof"); Jan Lessem, M.D., Ph.D., FACC, who is a consultant to
Alteon in pre-clinical and clinical development ("Dr. Lessem"); Kenneth Moch,
who is Alteon's President and Chief Executive Officer ("Moch"); and other
employees and consultants of Alteon as selected by Alteon. Dr. deGroof (or
another person designated by Alteon and reasonably acceptable to the Company)
will act as a liaison (the "Alliance Manager") with the Company's Program
Manager for all work to be performed under this Agreement.
4.2. ASSIGNMENT OF EMPLOYEES AND CONSULTANTS. Alteon in its discretion
shall assign Dr. deGroof, Dr. Lessem, Mr. Moch, or other equally qualified
members of its staff chosen by Alteon and reasonably acceptable to the Company,
to perform services on behalf of the Company. Subject to the immediately
preceding sentence, Alteon will be entitled to replace any
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of its employees and consultants performing services hereunder. Alteon shall be
responsible for binding its employees and consultants to comply with the
provisions of Sections 9.1 and 29.
4.3. USE OF THIRD PARTY CONTRACTORS. Upon Alteon's request and the
Company's agreement, Company shall retain third party contractors identified by
Alteon, including, but not limited to, specialists in toxicology, pharmacology,
formulations and patent law, to perform the services hereunder. Alteon shall not
be responsible for any such services provided by any such third-party
contractors, except that Alteon shall have management responsibility for the
work being done by such contractors and shall review the results of the third
party contractors' work. Alteon shall review and present to the Company
contracts with third party contractors pursuant to which such contractors agree
to confidentiality provisions and provisions with respect to the Company's
ownership of the technology similar to that contained in Sections 9.1 and 29
hereof; provided, that Alteon shall not be responsible for any changes to such
language agreed to by the Company. Company shall be responsible for paying any
third-party contractors, other than Alteon's employees or consultants, hired or
retained by Company, for the services performed by such contractors.
5. RECRUITMENT AND EMPLOYEE RETENTION.
5.1. HIRING. Alteon shall be responsible for all final hiring and
retention decisions with respect to its employees, consultants and third party
contractors who will be performing services for the Company.
5.2. TERMINATION AND SUBSTITUTION OF EMPLOYEES AND CONSULTANTS. In the
case where an employee or consultant or third party contractor of Alteon
terminates employment or any other relationship with Alteon, or is terminated,
Alteon will be entitled to designate a substitute.
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6. PAYMENT.
6.1. PAYMENT OF HOURLY RATES. The Company agrees to pay Alteon for work
performed under this Agreement (at Company premises or elsewhere) according to
the pricing terms set forth on Schedule 6.1.
6.2. TRAVEL EXPENSES. Alteon shall be fully reimbursed by the Company
for travel, meals, lodging, transportation, and related out-of-pocket expenses,
in each case to the extent reasonable, incurred by Alteon's employees or
consultants.
6.3. SUBMISSION OF INVOICES. Alteon will submit invoices to the Company
on a monthly basis. Payment will be due within thirty (30) days of the invoice
date.
7. OPTION AND RIGHT OF FIRST NEGOTIATION.
7.1. OPTION. Company hereby grants to Alteon an irrevocable option (the
"Option") to (a) acquire or (b) obtain an exclusive, worldwide license, with the
right to sublicense (the "License") under the Hemomax Technology (including
without limitation the Patent Rights) owned by or licensed to the Company and
created at any time prior to, on, or after the date of this Agreement, to make,
have made, offer for sale, sell, use, modify, prepare derivative works, and/or
import Product or the Hemomax Technology or any portion thereof. The term of the
License shall extend at least until the date of expiration of the last-to-expire
patent issued under the Patent Rights for the Hemomax Technology being licensed
to Alteon. The Option is exercisable at any time after the date of this
Agreement, and may be exercised numerous times for different Licenses or
different rights within the Hemomax Technology. The Option is exercisable if the
Company decides to license or sell all or a portion of the Hemomax Technology
and then is exercisable only as to that portion of the Hemomax Technology that
the Company decides to license or sell. The Company will be under no obligation
at any time to
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license or sell any or a portion of the Hemomax Technology. The Company shall
provide written notice to Alteon in each instance when the Company wishes to
license or sell all or a portion of the Hemomax Technology. The Notice shall
identify the portion of the Hemomax Technology that the Company wishes to
license or sell but need not include the terms of the proposed sale; provided,
however, that if a bona fide offer has been made to the Company such offer shall
be disclosed to Alteon by the Company. Within thirty (30) days of receipt of the
Notice Alteon shall inform the Company whether Alteon has any interest in
pursuing such a license or purchase and shall be given all available
information, dates and results related to the Hemomax Technology which is the
subject of the Notice (the "Information Packet").
7.2. GOOD-FAITH NEGOTIATION. If Alteon informs the Company that it has
an interest, the parties will negotiate in good faith to attempt to reach a
definitive, written agreement which will provide for the grant of the License or
for the sale of the Hemomax Technology (the "Right of First Negotiation");
provided, that neither party shall be required to enter into the same. Company
shall immediately notify Alteon upon any additional developments not included in
the Information Packet.
7.3. RIGHT TO LICENSE OR SELL. If the parties are unable to execute a
definitive, written license agreement or sales agreement within three (3) months
after the receipt of the Information Packet by Alteon (the "Negotiation
Period"), the Company will be entitled to offer a license or sell to third
parties for a period of twelve (12) months thereafter; provided, however, that
Company shall not grant a license or sell to a third party which is equal to or
less financially advantageous to the Company than a written offer made by Alteon
to the Company during the Negotiation Period. After such twelve-month period
expires, if the Company has not licensed or sold to a third party, the Company
shall again be required to comply with Alteon's Option and
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Right of First Negotiation. For the purpose of the foregoing, any non-cash
consideration received by the Company shall be measured at its fair market cash
value.
7.4. IRREVOCABILITY. The Option and Right of First Negotiation are
being granted by Company as partial consideration for Alteon entering into this
Agreement and offering the services of its employees and consultants to the
Company. Both the Option and the Right of First Negotiation are irrevocable and
fully vested upon the signing of this Agreement, and their exercise is not
subject to any further conditions, including the acceptance by the Company of
the services to be performed by Alteon, other than any conditions expressly
referred to in this Section 7.
8. ISSUANCE OF MEMBERSHIP UNITS.
8.1. ISSUANCE OF MEMBERSHIP UNITS. As consideration for Alteon entering
into this Agreement and offering the services of its employees and consultants,
the Company has agreed to issue and transfer 154,412 membership interest units
to Alteon, pursuant to the Membership Unit Subscription Purchase Agreement dated
the date hereof between Alteon and the Company. Such units being issued to
Alteon represent fifteen percent (15%) of the issued and outstanding securities
of the Company as of the date of this Agreement. Such units will confer on
Alteon the same rights and preferences with respect to such units as those
enjoyed by the founding unitholders of the Company. The units shall vest ratably
upon the occurrence of each of three vesting events, the First Vesting Event,
the Second Vesting Event and the Third Vesting Event.
8.2. FIRST VESTING. Upon the occurrence of the First Vesting Event, one
third of the membership units of the Company issued and transferred to Alteon
under Section 8.1, that is 51,471 units, shall immediately vest. Company shall
immediately notify Alteon of the occurrence of the First Vesting Event. Such
units vested by this occurrence will be
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nonrefundable and nonassessable, and the issuance and transfer to Alteon shall
be irrevocable and independent of any obligations of Alteon under this
Agreement.
8.3. SECOND VESTING. Upon the occurrence of the Second Vesting Event,
the second one third of the membership units of the Company issued and
transferred to Alteon under Section 8.1, that is 51,471 units, shall immediately
vest. Company shall immediately notify Alteon of the occurrence of the Second
Vesting Event. Such units vested by this occurrence will be nonrefundable and
nonassessable, and the issuance and transfer to Alteon shall be irrevocable and
independent of any obligations of Alteon under this Agreement.
8.4. THIRD VESTING. Upon the occurrence of the Third Vesting Event, the
third one third of the membership units of the Company issued and transferred to
Alteon under Section 8.1, that is 51,470 units, shall immediately vest. Company
shall immediately notify Alteon of the occurrence of the Third Vesting Event.
Such units vested by this occurrence will be non-refundable and non-assessable,
and the issuance and transfer to Alteon shall be irrevocable and independent of
any obligations of Alteon under this Agreement.
8.5. TERMS OF RESTRICTIONS. Prior to the lapse or termination of the
applicable restrictions, unit certificates for the restricted units shall be
issued in the name of Alteon and deposited with the Company in escrow. Dividends
and other distributions on the units held in escrow, if any, shall not be paid
to Alteon until the lapse or termination of the applicable restrictions. Any
such dividends or other distributions shall not bear interest. Upon the lapse or
termination of the applicable restrictions (and not before such time), Alteon
shall receive the unit certificates for the restricted units and unpaid
dividends, if any. Alteon shall be a unitholder with respect to all the units
represented by the unit certificates and shall have all the rights of a
unitholder with respect to all the restricted units, including the right to vote
such units and to receive all dividends and other distributions paid with
respect to such units, if any, subject only
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to the preceding provisions of this paragraph. Any units which vest will be
transferred to Alteon promptly after vesting. Any units which do not vest will
be deemed forfeited to the Company.
9. INTELLECTUAL PROPERTY.
9.1. OWNERSHIP. All inventions, technologies, improvements, derivative
works or other intellectual property made or developed by Alteon's employees or
consultants, solely or jointly, in the Hemomax Technology in performance of its
obligation under this Agreement shall be owned solely by Company. All other
inventions, technologies, improvements, derivative works or other intellectual
property not related to the Hemomax Technology, and made by Alteon's employees
or consultants shall be owned solely by Alteon. Company will own solely all
inventions, technologies, improvements, derivative works and other intellectual
property developed, made or created solely by Company's employees or
consultants. Alteon and Company will own jointly all inventions, technologies,
improvements, derivative works, and other intellectual property not related to
the Hemomax Technology, and developed, made or created jointly by Alteon's and
Company's employees or consultants. Alteon's employees or consultants shall not
be considered to be the Company's employees or consultants. Inventorship shall
be determined in accordance with the United States patent laws.
10. WARRANTIES AND LIMITATION OF LIABILITY.
10.1. WARRANTY FOR SERVICES. Alteon warrants that the services provided
by Alteon shall be performed in accordance with generally accepted industry
practices and standards.
10.2. LIMITATION OF LIABILITY. Alteon shall not be liable for any
indirect, incidental, consequential, or special damages. Alteon's liability in
any form whatsoever under this Agreement and Company's exclusive remedy shall be
limited to a return of the service fees paid in the prior 12-month period to
Alteon pursuant to Section 6.1 directly attributable to the services
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which are rejected by the Company. Under no event will Alteon (i) be obligated
to return the membership units in the Company received by Alteon, or be subject
to any restrictions with respect to such membership units (provided, that such
units are still subject to vesting or forfeiture as set forth in Section 8
hereof), or (ii) be precluded from exercising its Option and Right of First
Negotiation pursuant to Section 7.
10.3. FORCE MAJEURE. Alteon shall not be liable for any damages
resulting from delays in performance or failure to perform due to causes beyond
its control. Such causes shall include but not be limited to acts of God,
strikes and governmental actions.
10.4. DISCLAIMER OF WARRANTIES. EXCEPT AS PROVIDED IN THIS AGREEMENT,
ALTEON DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE
SERVICES OR GOODS PROVIDED HEREUNDER, INCLUDING WITHOUT LIMITATION, THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND THE
WARRANTIES OF TITLE AND NONINFRINGEMENT.
11. INDEMNIFICATION.
11.1. BY COMPANY. Company agrees to indemnify (collectively, "Alteon's
Indemnitees"), defend and hold Alteon, and Alteon's officers, directors,
employees, consultants and Affiliates harmless from and against all losses,
claims, damages, costs and expenses, including attorney's fees (collectively,
the "Losses"), incurred in connection with this Agreement, including without
limitation (i) claims brought by third parties arising out of the services
performed by Alteon hereunder, (ii) product liability claims, including without
limitation claims for personal injury by Alteon's Indemnitees, (iii) claims for
intellectual property infringement or other violations, (iv) claims brought for
violations of Federal or states securities laws in respect of Company's
securities, and (v) claims brought by Company employees,
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consultants, or contractors arising out of the services performed by Alteon
hereunder; provided, however, that such indemnification for such Losses shall
not apply to the extent the Losses were caused by the negligence or intentional
misconduct of Alteon's Indemnitees in performance of the services hereunder.
11.2. BY ALTEON. Alteon agrees to indemnify, defend and hold Company
and Company's officers, directors, employees, consultants and Affiliates
(collectively, "Company's Indemnitees") harmless from and against Losses
incurred in connection with this Agreement, to the extent such Losses are caused
by the negligence or intentional misconduct of Alteon's Indemnitees, including
without limitation (i) claims brought by third parties arising out of the
services performed by Alteon hereunder, (ii) product liability claims, including
without limitation claims for personal injury brought by Alteon's Indemnitees,
(iii) claims for intellectual property infringement or other violations, (iv)
claims brought in violation of Federal or State laws in respect to the Company's
securities, and (v) claims brought by Company employees, consultants or
contractors arising out of the services performed by Alteon hereunder.
12. INSURANCE. Each of Alteon and the Company shall maintain such insurance
as is reasonable and prudent under their respective circumstances, and shall
upon the request of the other party provide evidence of such insurance, if any.
13. TERM AND EXTENSIONS. The term of this Agreement shall commence on the
date of this Agreement and continue until completion of Phase III set forth in
Schedule 2.1.
14. TERMINATION.
(a) This Agreement may be terminated by either party upon one
hundred and eighty (180) days' prior written notice to the other party. Upon
notice of termination by Hemomax under this Section 14(a): (i) Alteon shall
retain its Option and Right of First
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Negotiation under Section 7 for three (3) years following the effective date of
termination, (ii) in addition to any previously vested membership units at the
effective date of termination, one-half (1/2) of the unvested membership units
next due to vest under Sections 8.2, 8.3 or 8.4, as applicable, shall vest upon
termination (example: upon notice of termination after vesting of the first
one-third of the units but before the second one-third, one half of the second
one-third of the units would also vest and the third set of one-third of the
units would not vest), and (iii) notwithstanding anything in this Agreement to
the contrary, if a Sale Event is consummated with twelve (12) months of the
effective date of such termination, then the Company shall issue to Alteon a
number of units equal to the unvested units of Alteon which were forfeited upon
termination.
(b) This Agreement may also be terminated:
(i) by mutual written agreement of the parties
hereto;
(ii) by either party on thirty (30) days' prior
written notice to the other party in the event such other party shall cause a
material breach of this Agreement which is not cured within the period of
written notice thereof. Upon termination by the Company under this Section
14(b)(ii), any unvested membership units shall be forfeited and Alteon shall
have no further Option and Right of First Negotiation under Section 7. Upon
termination by Alteon under this Section 14(b)(ii), any unvested membership
units shall immediately vest and Alteon shall retain its Option and Right of
First Negotiation under Section 7 for three (3) years following the effective
date of termination.
(iii) by either party upon the insolvency of the
other party, or upon the filing of a voluntary petition in bankruptcy by the
other party or to have the other party declared a
<PAGE> 15
bankrupt, or upon the appointment of a receiver or trustee for the other party,
or upon the execution by the other party of an assignment for the benefit of
creditors.
(c) Upon the occurrence of a Sale Event described in Section
1.7(2), or a sale or licensing of all or substantially all of the Hemomax
Technology, Alteon will have the right to terminate this Agreement on thirty
(30) days prior written notice. Such right of termination is in addition to any
other rights Alteon may have under this Agreement upon a Sale Event.
(d) Alteon shall have the right to terminate its obligations
under this Agreement in that portion of the Hemomax Technology which is the
subject of a Sale Event on thirty (30) days prior written notice.
15. ASSIGNMENT. No part of this Agreement or of the obligations or rights
of either party hereto shall be assigned without the prior written consent of
the other party, except that Alteon shall have the right to assign without
Company's consent the Option and Right of First Negotiation (as defined in
Section 7), or the membership units issued to Alteon in Section 8.1 (although
such membership units still remain subject to restrictions on transfer described
in the Operating Agreement of the Company).
16. SOLICITATION OF EMPLOYEES. During the Term of this Agreement and for a
period of two years thereafter, the Company and any successor, transferee,
purchaser, licensee, or assignee of the Company or of any of Company's rights
(including, without limitation, any purchaser or licensee of the Hemomax
Technology) agree not to solicit or hire any of Alteon's employees, or
consultants of Alteon that work on the Hemomax Technology, except by mutual
written consent of the parties hereto, in which case a fee for the hiring of any
such employee(s) or consultant(s) shall be negotiated and mutually agreed upon.
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17. INDEPENDENT CONTRACTOR. In taking any action pursuant to this
Agreement, Alteon shall act only as an independent contractor of the Company.
Nothing in this Agreement shall be construed as creating an agency, employment,
tenancy, partnership, joint venture or any other relationship between the
parties hereto.
18. RESOLUTION OF DISPUTES. The parties agree that, in the event a dispute
arises between them, they will attempt, in good faith, to resolve such dispute
through mutual negotiations, which negotiations shall be conducted in an
amicable and equitable manner. However, if any dispute cannot be so resolved
after a reasonable period of time, the parties agree that the matter shall be
submitted to and decided by binding arbitration to be held in Pittsburgh,
Pennsylvania in accordance with the Commercial Arbitration Rules of the American
Arbitration Association. Either party may apply to the American Arbitration
Association to institute the arbitration proceedings. The fees and expenses of
the arbitrators shall be shared equally by both parties.
19. NOTICES. All notices and other communications pursuant to this
Agreement shall be in writing and shall be deemed to have been duly given if
personally delivered or, if mailed, when mailed by United States certified or
registered mail, or by Federal Express (or comparable overnight mail service),
postage prepaid, to the other party at the following addresses (or at such other
address as shall be given in writing by either party to the other):
If to the Company:
Hemomax, LLC.
5140 Pembroke Place
Pittsburgh, PA 15232
Attention: David J. D'Appolonia
Tel.: 412-683-1903
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If to Alteon:
Alteon Inc.
170 Williams Drive
Ramsey, New Jersey 07746
Attention: Kenneth I. Moch
President and CEO
Tel.: 201-818-5500
20. GOVERNING LAW AND CHOICE OF FORUM. This Agreement and the relations
between the parties will be governed in accordance with the laws of the
Commonwealth of Pennsylvania, without regard to conflicts of law rules. The
parties hereby submit to the jurisdiction of the courts in the Commonwealth of
Pennsylvania for any disputes arising between them.
21. AMENDMENT. This Agreement may be amended only by a written agreement
between Alteon and the Company that expressly amends, terminates or supersedes
this Agreement.
22. SUCCESSORS AND ASSIGNS. This Agreement, and all rights and powers
granted hereby, will bind and inure to the benefit of the parties hereto and
their respective successors and assigns.
23. VALIDITY OF TERMS. If any term of this Agreement shall be held void,
illegal, unenforceable or in conflict with any law of a federal, state or local
government having jurisdiction over this Agreement, the validity of the
remaining portions or provisions hereof shall not be affected thereby.
24. NO WAIVER. No delay or failure by any party to exercise any right under
this Agreement, and no partial or single exercise thereof, shall constitute a
waiver of that or any other right unless otherwise expressly provided herein.
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25. COUNTERPARTS. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original but all of which together shall
constitute one and the same instrument.
26. HEADINGS. The section headings contained in this Agreement are inserted
for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
27. ENTIRE AGREEMENT. This Agreement and any attached exhibits, schedules
or appendices constitute the complete and exclusive agreement between the
Company and Alteon with respect to the subject matter hereof and supersede all
prior and contemporaneous agreements and understandings.
28. SURVIVAL. The following sections shall survive the termination of this
Agreement: Section 6 on payment, Section 7 on Option and Right of First
Negotiation , Section 8 on issuance of membership units, Section 9 on
intellectual property, Section 10 on warranties and limitation of liability,
Section 11 on indemnification, Section 14 on terminations, Section 15 on
assignment, Section 16 on solicitation of employees, Section 18 on resolution of
disputes, Section 20 on governing law and choice of forum, Section 28 on
survival, and Section 29 on confidentiality.
29. CONFIDENTIALITY. Each party acknowledges that it may have access to
certain confidential information of the other party concerning the other party's
business, plans, customers, technology, and products, and other information held
in confidence by the other party ("Confidential Information"). Confidential
Information will include all information in tangible or intangible form that is
marked or designated in writing as confidential at the time of disclosure. Each
party agrees that it will not use in any way, for its own account or the account
<PAGE> 19
of any third party, except as expressly permitted by, or required to achieve the
purposes of, this Agreement, nor disclose to any third party (except as required
by law or to that party's attorneys, accountants and other advisors as
reasonably necessary), any of the other party's Confidential Information and
will take reasonable precautions to protect the confidentiality of such
information, at least as stringent as it takes to protect its own Confidential
Information. Information will not be deemed Confidential Information hereunder
if such information: (i) is known to the receiving party prior to receipt from
the disclosing party directly or indirectly from a source other than one having
an obligation of confidentiality to the disclosing party; (ii) becomes known
(independently of disclosure by the disclosing party) to the receiving party
directly or indirectly from a source other than one having an obligation of
confidentiality to the disclosing party; (iii) becomes publicly known or
otherwise ceases to be secret or confidential, except through a breach of this
Agreement by the receiving party; or (iv) is independently developed by the
receiving party. The receiving party may disclose Confidential Information
pursuant to the requirements of a governmental agency or by operation of law,
provided that it gives the disclosing party reasonable prior written notice
sufficient to permit the disclosing party to contest such disclosure.
[REST OF PAGE INTENTIONALLY LEFT BLANK]
<PAGE> 20
Intending to be legally bound, the parties have executed this Agreement
as of the date first written above.
HEMOMAX, LLC
By: /s/David J. D'Appolonia
-------------------------
Name: David J. D'Appolonia
Title: President
ALTEON INC.
By: /s/ Kenneth I. Moch
Kenneth I. Moch
President and CEO
<PAGE> 21
SCHEDULE 1.4
PATENT RIGHTS
[CONFIDENTIAL TREATMENT REQUESTED]
<PAGE> 22
SCHEDULE 2.1
Description of Development Services
Alteon will manage the further development of Hemomax Technology. The
development will be carried out in three phases.
1. Phase I will be the "Preliminary Evaluation", which will consist of a
review and evaluation of existing information on the Hemomax Technology and the
preparation of a report for review and approval by the Hemomax Board of
Managers.
1.1. The Preliminary Evaluation will consist of a work plan with a
schedule and cost estimate for conducting studies of formulation, pharmacology
and toxicology needed to fill the most significant gaps and resolve the most
significant uncertainties related to the feasibility of commercial development,
as well as conducting preliminary review of the patent status and positioning of
the Hemomax Technology.
1.2. The Preliminary Evaluation is a rough outline of a work plan.
Development of the Preliminary Evaluation will be a short-term activity,
comprising a few days of work by the Alteon development team. No new data will
be created during this activity.
2. Phase II will be implementation of the Preliminary Evaluation.
2.1. As described above, the primary tasks performed during the
implementation of the Preliminary Evaluation will be to resolve specific issues
relating to formulation, pharmacology, toxicology and patents. It is anticipated
that approximately $[CONFIDENTIAL TREATMENT REQUESTED]will be expended during
this effort. The assessment of formulation, pharmacology and toxicology issues
will be designed to provide short term (within[CONFIDENTIAL TREATMENT
REQUESTED]) answers to key pharmaceutical
<PAGE> 23
development issues. The assessment of the intellectual property status of the
Hemomax Technology will include recommendations as to filings and or other
actions that should be made to strengthen and broaden Hemomax's proprietary
interest in the Hemomax Technology.
2.2. The work product from implementation of the Preliminary Evaluation
will be the development and delivery of the Technology Development Plan, which
would include all the tasks necessary for the first filing for the first
product. The data generated from the resolution of the issues in the Preliminary
Evaluation will form the basis of the Technology Development Plan. The
Technology Development Plan will include the specifications for the pre-clinical
studies to be carried out on formulation, pharmacology and toxicology as needed
to support the IND filing of the first product. It will also include a strategic
analysis of how to best bring products based on the HemoMax Technology to market
and to create value for the HemoMax equity holders. The Technology Development
Plan will include a detailed schedule and budget.
3. Phase III will be the implementation of the Technology Development
Plan, which will be completed upon the IND filing for the first Product.
<PAGE> 24
SCHEDULE 6.1
PRICING TERMS
The following hourly rates will apply for Alteon's employees and consultants,
regardless of the physical location of the employee or consultant at the time of
the performance of services:
<TABLE>
<CAPTION>
NAME OF EMPLOYEE OR CONSULTANT OR CATEGORY RATES
------------------------------------------ -----
<S> <C>
Kenneth Moch [CONFIDENTIAL TREATMENT REQUESTED]
Dr. deGroof and other employees of Alteon [CONFIDENTIAL TREATMENT REQUESTED]
Dr. Lessem and other consultants to Alteon [CONFIDENTIAL TREATMENT REQUESTED]
</TABLE>
