Selection Agreement - Ixsys Inc. and MedImmune Inc.
SELECTION AGREEMENT
This Selection Agreement (this "Agreement") is effective as of
February 24, 1999 ("the EFFECTIVE DATE") by and between Ixsys,
Inc., a Delaware corporation, having an address at 3520 Dunhill
Road, San Diego, CA 92121 ("IXSYS"), and MedImmune, Inc. a
Delaware Corporation, having offices at 35 West Watkins Mill
Road, Gaithersburg, MD 20878 ("MEDIMMUNE").
WHEREAS, MEDIMMUNE desires to have IXSYS perform certain research
and development with respect to certain antibodies yet to be
determined; and
WHEREAS, IXSYS desires to perform such research and development
on the terms and conditions of this Agreement.
NOW THEREFORE in consideration of the mutual promises and other
good and valuable consideration, the parties agree as follows:
SECTION 1 - Antibody Selection.
1.1 Within twenty four (24) months after the EFFECTIVE DATE,
MEDIMMUNE shall designate by written notice to IXSYS, two (2)
antibodies for which MEDIMMUNE desires to have IXSYS perform
separate research and development programs (each, a "PROGRAM") to
modify such antibodies.
1.2 The written notice described in Section 1.1 for each PROGRAM
shall specify the following:
(a) the identity and sequence of the antibody;
(b) the identity of the desired target ligand;
(c) the desired assay by which to measure the specificity and
affinity of the antibody and modifications to such antibody
developed under the applicable PROGRAM;
(d) the personnel resources (specified as the number of full
time equivalent personnel) to be expended by Ixsys under the
applicable PROGRAM, which shall not be less than (CONFIDENTIAL
TREATMENT REQUESTED) or more than (CONFIDENTIAL TREATMENT
REQUESTED) without the prior written consent of IXSYS; and
(e) the term of the applicable PROGRAM, which shall not be less
than (CONFIDENTIAL TREATMENT REQUESTED) months or more than
(CONFIDENTIAL TREATMENT REQUESTED) months without the prior
written consent of IXSYS.
1.3 Within thirty (30) days after MEDIMMUNE delivers to IXSYS
the written notice described in Section 1.1 for a PROGRAM, the
parties shall duly execute and deliver a Research and Assignment
and License Agreement in the form attached hereto as Appendix A,
with the blanks on Exhibit 1 thereto completed as provided above
and only those modifications as the parties mutually agree in
writing.
SECTION 2 - Assignment; Successors.
2.1 This Agreement shall not be assigned or otherwise
transferred (in whole or in part, whether voluntarily, by
operation of law or otherwise) by either of the parties without
the prior written consent of the other party (which consent shall
not be unreasonably withheld); provided, however, that either
party may, without such consent, assign this Agreement and its
rights and obligations hereunder in connection with the transfer
or sale of all or substantially all of its business, or in the
event of its merger, consolidation, change in control or similar
transaction. Any permitted assignee shall assume all obligations
of its assignor under this Agreement. Any purported assignment
or transfer in violation of this Section 2.1 shall be void.
2.2 Subject to the limitations on assignment herein, this
Agreement shall be binding upon and inure to the benefit of said
successors in interest and assigns of MEDIMMUNE and IXSYS.
SECTION 3 - General Provisions.
3.1 The relationship between IXSYS and MEDIMMUNE is that of
independent contractors. IXSYS and MEDIMMUNE are not joint
venturers, partners, principal and agent, master and servant,
employer or employee, and have no relationship other than as
independent contracting parties. IXSYS shall have no power to
bind or obligate MEDIMMUNE in any manner. Likewise, MEDIMMUNE
shall have no power to bind or obligate IXSYS in any manner.
3.2 This Agreement sets forth the entire agreement and
understanding between the parties as to the subject matter
thereof and supersedes all prior agreements in this respect.
There shall be no amendments or modifications to this Agreement,
except by a written document which is signed by both parties.
3.3 This Agreement shall be construed and enforced in accordance
with the laws of the State of California without regard to the
conflicts of law principles thereof.
3.4 The headings in this Agreement have been inserted for the
convenience of reference only and are not intended to limit or
expand on the meaning of the language contained in the particular
article or section.
3.5 Any delay in enforcing a party's rights under this Agreement
or any waiver as to a particular default or other matter shall
not constitute a waiver of a party's right to the future
enforcement of its rights under this Agreement, excepting only as
to an expressed written and signed waiver as to a particular
matter for a particular period of time.
3.6 Any notices given pursuant to this Agreement shall be in
writing, delivered by any means, addressed to the other party at
its address indicated below, or to such other address as the
addressee shall have last furnished in writing to the addressor
and (except as otherwise provided in this Agreement) shall be
effective upon receipt by the addressee.
To MEDIMMUNE: MedImmune, Inc.
35 West Watkins Mill Road
Gaithersburg, MD 20878
Copy to: Carella, Byrne, Bain, Gilfillan,
Cecchi, Stewart & Olstein
6 Becker Farm Road
Roseland, New Jersey 07068
Fax No. (973) 994-1744
Attn: Elliot M. Olstein, Esq.
To IXSYS: Ixsys, Inc.
3520 Dunhill Road
San Diego, CA 92121
Attention: President
Copy to: Pillsbury Madison & Sutro LLP
235 Montgomery Street, 16th Floor
San Francisco, California 94104
Attention: Thomas E. Sparks, Jr.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date set forth above.
IXSYS, INC. MEDIMMUNE, INC.
By: /s/ Janine M. Taylor By: /s/ David M. Mott
Name: Janine M. Taylor Name: David M. Mott
Title: President & Chief Operating Title: Vice Chairman &
Officer Chief Financial Officer