Research and License Agreement - OraVax Merieux Co., Merieux OraVax SNC, and MedImmune Inc.
RESEARCH AND LICENSE AGREEMENT
This Agreement, effective as of November 1, 1996 ("EFFECTIVE
DATE"), by and between OraVax Merieux Co. ("O-M") having an
address at 38 Sidney Street, Cambridge, MA 02139, Merieux OraVax
S.N.C. ("M-O") having an address at 58. avenue Leclerc, 69007
Lyon, France ("O-M" and "M-O" are individually and collectively
referred to as "HPC") and MedImmune, Inc., a Delaware Corporation
having offices at 35 West Watkins Mill Road, Gaithersburg, MD
20878 ("MEDIMMUNE") and Human Genome Sciences, Inc., a Delaware
corporation having offices at 9410 Key West Avenue, Rockville, MD
20850 ("HGS").
WHEREAS, HPC, MEDIMMUNE and HGS each have substantial
knowledge and expertise in and own or have rights to certain
technology relating to vaccines, genes, gene sequencing, protein
expression and purification; and
WHEREAS, the PARTIES desire to enter into a research and
licensing arrangement in an effort to develop vaccines against
Helicobacter pylori ("H. pylori").
NOW THEREFORE, in consideration of the mutual promises and
other good and valuable consideration, the PARTIES agree as
follows:
SECTION 1 - DEFINITIONS.
The terms used in this Agreement have the following
meaning:
1.1 "AFFILIATE" shall mean, with respect to any person or
entity, (i) any other person or entity of which the
securities or other ownership interests representing fifty
per cent (50%) or more of the equity or fifty percent (50%)
or more of the ordinary voting power or fifty percent (50%)
or more of the general partnership interest are, at the
time such determination is being made, owned, Controlled or
held, directly or indirectly, by such person or entity, or
(ii) any other person or entity which, at the time such
determination is being made, is Controlling, Controlled by
or under common Control with, such person or entity. As
used herein, the term "Control" whether used as a noun or
verb, refers to the possession, directly or indirectly, of
the power to direct, or cause the direction of, the
management or policies of a person or entity whether
through the ownership of voting securities, by contract or
otherwise.
1.2 "CONFIDENTIAL INFORMATION" shall mean know-how, technology,
inventions, technical information, software, data,
biological materials and the like which are owned or
controlled by the disclosing PARTY or which that PARTY is
obligated to maintain in confidence, provided, however,
that information disclosed by Dr. J.F. Tomb during a
presentation at the "9th International Workshop on
Gastroduodenal Pathology and Helicobacter pylori" held
October 16-19, 1996 in Copenhagen (the "TOMB DISCLOSURE")
will be excluded from the definition of CONFIDENTIAL
INFORMATION.
1.3 "FIELD" means the treatment or prevention of infection or
disease caused by H. pylori by use of a VACCINE.
1.4 "GENE" means DNA (or a portion thereof) of H. pylori.
1.5 "HGS" shall mean Human Genome Sciences, Inc.
1.6 "JOINT INVENTIONS" shall mean inventions conceived and
reduced to practice during the term of this Agreement
jointly by employees or others acting on behalf of HPC or
its AFFILIATES and by employees or others acting on behalf
of MEDIMMUNE or HGS, as the case may be, or their
AFFILIATES.
1.7 "JOINT PATENTS" shall mean (a) all patent applications
hereafter filed or having legal force in any country owned
jointly by MEDIMMUNE or HGS as the case may be and HPC,
which claim a composition, method or process relating to a
JOINT INVENTION, together with any and all patents that
have issued or in the future issue therefrom, and (b) all
related divisionals, continuations, continuations-in-part,
reissues, renewals or extensions or foreign counterparts to
any such patents and patent applications.
1.8 "HGS PATENTS" shall mean all patents and patent
applications which claim HGS TECHNOLOGY owned by HGS or
which has been licensed to HGS or JOINT PATENTS in which
HGS has an ownership interest. Included within the
definition of HGS PATENTS are all continuations,
continuations-in-part, divisions, reissues, renewals,
extensions or foreign counterparts thereof.
1.9 "HGS TECHNOLOGY" shall mean (i) GENES and/or expression
products thereof (including sequence and function) and (ii)
biological and genomic information with respect to GENES in
each case which have been developed by or on behalf of HGS
prior to or within one year after the EFFECTIVE DATE and
which is owned by HGS in whole or in part, provided,
however, that for the purposes of determining the royalty
due under Section 3.2(b) hereof, HGS TECHNOLOGY shall not
include such GENES, expression products, or biological and
genomic information with respect to such GENES that were
developed by or otherwise known to HPC prior to the
EFFECTIVE DATE.
1.10 "LICENSED PATENTS" means MEDIMMUNE PATENT(S) and/or HGS
PATENT(S) and/or JOINT PATENTS.
1.11 "LICENSED TECHNOLOGY" means MEDIMMUNE TECHNOLOGY and/or HGS
TECHNOLOGY and/or JOINT INVENTIONS.
1.12 "LICENSED TERRITORY" means all countries of the world.
1.13 "MEDIMMUNE PATENT(S)" shall mean all patents and patent
applications which claim MEDIMMUNE TECHNOLOGY owned by
MEDIMMUNE or which MEDIMMUNE has licensed from HGS or JOINT
PATENTS in which MEDIMMUNE has an ownership interest.
Included within the definition of MEDIMMUNE PATENTS are all
continuations, continuations-in-part, divisions, reissues,
renewals, extensions or foreign counterparts thereof.
1.14 "MEDIMMUNE TECHNOLOGY" shall mean (i) GENES and/or
expression products thereof (including sequence and
function) and (ii) biological and genomic information with
respect to GENES in each case which has been developed by
or on behalf of MEDIMMUNE prior to or within one year after
the EFFECTIVE DATE and which is owned by MEDIMMUNE in whole
or in part and/or which have been licensed by MEDIMMUNE
from HGS, provided, however, that for the purposes of
determining the royalty due under Section 3.2(b) hereof,
MEDIMMUNE TECHNOLOGY shall not include such GENES,
expression products, or biological and genomic information
with respect to such GENES that were developed by or
otherwise known to HPC prior to the EFFECTIVE DATE.
1.15 "NET SALES PRICE" means the total amount invoiced by HPC,
its AFFILIATES or its licensees for sale of PRODUCT, less
transportation charges and insurance, sales taxes, use
taxes, excise taxes, value added taxes, customs duties or
other imposts, in each case as separately invoiced, normal
and customary quantity and cash discounts, rebates granted
and disallowed reimbursements and allowances and credit on
account of rejection or return of PRODUCT.
In the event a sale is made between HPC and an AFFILIATE(S)
for re-sale then NET SALES PRICE for determining a payment
under this Agreement shall be the higher of (i) net sales
to the AFFILIATES calculated in the manner of NET SALES
PRICE, or (ii) the NET SALES PRICE of the AFFILIATE(S) to
an independent third party.
1.16 "PARTY" shall mean O-M, M-O, MEDIMMUNE or HGS.
1.17 "PATENT(S)" means individually and collectively MEDIMMUNE
PATENTS, HPC PATENTS, HGS PATENTS and JOINT PATENTS.
1.18 "HPC PATENT(S)" shall mean all patents and patent
applications which claim HPC TECHNOLOGY owned by HPC or
JOINT PATENTS in which HPC has an ownership interest.
Included within the definition of HPC PATENTS are all
continuations, continuations-in-part, divisions, reissues,
renewals, extensions or foreign counterparts thereof.
1.19 "HPC TECHNOLOGY" means GENES and/or expression products
thereof (including sequence and function), any process,
use, article of manufacture, composition of matter,
information (including biological and genomic information
with respect to GENES), data and materials, whether
patentable or not, which incorporates or is based on or
uses or is derived by use of LICENSED TECHNOLOGY and which
is developed by or on behalf of HPC or any of their
collaborators or licensees during the term of this
Agreement, provided, however, that for the purposes of
determining the royalty due under Section 3.2(b) hereof,
HPC TECHNOLOGY shall not include any GENE, expression
product, process, use, article of manufacture, composition
of matter, information, data or materials that were
developed by or otherwise known to HPC prior to the
EFFECTIVE DATE.
1.20 "PRODUCT(S)" shall mean any product, process, method,
substance, device, composition, or service which (i)
incorporates or is based on or uses or is derived by use of
LICENSED TECHNOLOGY and/or HPC TECHNOLOGY and/or (ii) is
covered by a LICENSED PATENT and/or (iii) is covered by a
HPC PATENT. An incidental or insubstantial use of LICENSED
TECHNOLOGY or HPC TECHNOLOGY shall not cause a product,
process, method, substance, device, composition or service
to become a PRODUCT.
1.21 "VACCINE" means a substance(s) utilized for active
immunization against infectious agents.
1.22 "VALID CLAIM" means (i) a claim of a pending patent
application or, (ii) a claim of an issued patent which has
not lapsed or become abandoned or been declared invalid or
unenforceable by a court of competent jurisdiction or an
administrative agency from which no appeal can be or is
taken.
SECTION 2 - GRANTS AND COVENANTS
2.1 Subject to the terms and conditions of this Agreement,
MEDIMMUNE grants to HPC an exclusive, worldwide royalty
free (except for the license fee payments set forth in
Section 3.1) license under MEDIMMUNE TECHNOLOGY, MEDIMMUNE
PATENTS and MEDIMMUNE'S ownership interest in JOINT
INVENTIONS and JOINT PATENTS to perform research and
development of PRODUCTS for use in the FIELD. HPC shall
have the right to grant sublicenses only as provided in
Paragraph 2.6.
2.2 Subject to the terms and conditions of this Agreement,
MEDIMMUNE grants to HPC an exclusive, sublicensable,
worldwide royalty-bearing license in the FIELD under
MEDIMMUNE TECHNOLOGY, MEDIMMUNE PATENTS and MEDIMMUNE'S
ownership interest in JOINT INVENTIONS and JOINT PATENTS to
make, have made, use, sell, import and export PRODUCTS in
the FIELD. HPC shall have the right to grant sublicenses
only as provided in Paragraph 2.6.
2.3 Subject to the terms and conditions of this Agreement, HGS
grants to HPC an exclusive, worldwide, royalty free (except
for the license fee payments set forth in Section 3.1)
license under HGS TECHNOLOGY, HGS PATENTS and HGS'
ownership interest in JOINT INVENTIONS and JOINT PATENTS,
to perform research and development of PRODUCTS for use in
the FIELD. HPC shall have the right to grant sublicenses
only as provided in Paragraph 2.6.
2.4 Subject to the terms and conditions of this Agreement, HGS
grants to HPC an exclusive, sublicensable, worldwide
royalty-bearing license in the FIELD under HGS TECHNOLOGY,
HGS PATENTS and HGS' ownership interest in JOINT INVENTIONS
and JOINT PATENTS to make, have made, use, sell, import and
export PRODUCTS in the FIELD. HPC shall have the right to
grant sublicenses only as provided in Paragraph 2.6
2.5 (a) During the term of this Agreement, HPC agrees to use
and to grant rights to HPC TECHNOLOGY and HPC PATENTS, in
each case and with respect to HPC'S interest in JOINT
INVENTIONS and JOINT PATENTS only in the FIELD or only as
otherwise permitted by this Agreement.
(b) During the term of this Agreement, HGS agrees to use
and to grant rights to HGS TECHNOLOGY and HGS PATENTS, in
each case and with respect to HGS' interest in JOINT
INVENTIONS and JOINT PATENTS, only outside the FIELD and
only as permitted by this Agreement.
(c) During the term of this Agreement, MEDIMMUNE agrees to
use and to grant rights to MEDIMMUNE TECHNOLOGY and
MEDIMMUNE PATENTS, in each case and with respect to
MEDIMMUNE'S interest in JOINT INVENTIONS and JOINT PATENTS,
only outside the FIELD and only as permitted by this
Agreement.
(d) During and after the term of this Agreement, HPC
agrees to use MEDIMMUNE TECHNOLOGY and MEDIMMUNE PATENTS
and HGS TECHNOLOGY and HGS PATENTS and JOINT INVENTIONS and
JOINT PATENTS only as licensed and permitted hereunder.
(e) Except as set forth in Section 9.1(b) of this
Agreement, neither PARTY will use, license or sublicense
their respective interest in the JOINT INVENTIONS or JOINT
PATENTS outside the FIELD without the express written
consent of the other PARTY having an interest in such JOINT
INVENTION or JOINT PATENT.
2.6 The rights and licenses granted to HPC by MEDIMMUNE and HGS
under this Agreement, and rights to HPC TECHNOLOGY and HPC
PATENTS, JOINT INVENTIONS and JOINT PATENTS are licensable
and/or transferable by HPC to a third party only with
respect to a PRODUCT in the FIELD, and, except for any
implied sublicense attaching to the commercial sale or
distribution of the PRODUCTS, pursuant to an agreement in
which the third party(ies) agree(s) (i) to covenants and
obligations which limit the use of PRODUCTS, MEDIMMUNE
TECHNOLOGY, MEDIMMUNE PATENTS, HGS TECHNOLOGY, HGS PATENTS,
JOINT INVENTIONS, JOINT PATENTS, HPC TECHNOLOGY and HPC
PATENTS which are essentially identical to the covenants
and obligations of HPC to MEDIMMUNE and HGS under this
Agreement and (ii) to obligations identical to Sections 5,
6 and 8 of this Agreement. Upon termination of this
Agreement for any reason, any sublicense granted by HPC
hereunder not then in default shall remain in force and
effect in accordance with its terms, provided, however,
that any sublicenses granted by HPC under this Agreement
shall provide for termination or assignment to MEDIMMUNE
and/or HGS, as the case may be, upon termination of this
Agreement.
2.7 HPC shall be solely responsible for the licensing,
manufacturing, marketing and sale of all PRODUCTS in the
FIELD.
SECTION 3 - PAYMENTS
3.1 In partial consideration of the rights granted to HPC
hereunder, HPC shall pay to MEDIMMUNE as a license fee of up to
(CONFIDENTIAL TREATMENT HAS BEEN REQUESTED) U.S. dollars ($U.S.
(CONFIDENTIAL TREATMENT HAS BEEN REQUESTED)) which shall be due
and payable in three payments as follows: (i) a payment of
$(CONFIDENTIAL TREATMENT HAS BEEN REQUESTED) which is due and
payable on or before December 6, 1996; (ii) a second payment of
$(CONFIDENTIAL TREATMENT HAS BEEN REQUESTED) which is due and
payable five (5) months after the EFFECTIVE DATE (the "SECOND
PAYMENT DATE"), provided, however, that such second payment of
$(CONFIDENTIAL TREATMENT HAS BEEN REQUESTED) shall be pro-rated
at a rate of $(CONFIDENTIAL TREATMENT HAS BEEN REQUESTED) per
month for each month, or part thereof, prior to the SECOND
PAYMENT DATE that any of the HGS TECHNOLOGY or MEDIMMUNE
TECHNOLOGY no longer qualifies as CONFIDENTIAL INFORMATION due to
disclosure of such HGS TECHNOLOGY or MEDIMMUNE TECHNOLOGY by HGS,
MEDIMMUNE or TIGR, with it being expressly understood that the
TOMB DISCLOSURE is not a disclosure of such HGS TECHNOLOGY or
MEDIMMUNE TECHNOLOGY; and (iii) a final payment of $(CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED) which is due and payable upon the
issuance of the first United States, Japanese or European Union
country PATENT. All payments to be made hereunder are payable
within 10 days of its due date and shall be by wire transfer or
other commercially reasonable method of transfer of immediately
available funds to an account designated by MEDIMMUNE.
3.2 HPC shall pay to MEDIMMUNE a royalty on the NET SALES PRICE
of PRODUCTS sold by HPC, its AFFILIATES or its licensees as
follows:
(a)For PRODUCTS covered by a VALID CLAIM of the PATENTS
where manufactured, used or sold, the royalty shall be
(CONFIDENTIAL TREATMENT HAS BEEN REQUESTED)% of NET
SALES PRICE. No royalty shall be due under this
Section 3.2(a) on any PRODUCTS covered only by a VALID
CLAIM of a pending PATENT which has not issued seven
(7) years following its earliest priority date (the
"CUT-OFF DATE"), provided, however, that royalties
shall continue to accrue for up to three (3) years
after the CUT-OFF DATE while such PATENT remains
pending, and such accrued royalty shall become payable
only upon the issuance of such pending PATENT within
such 3-year period.
(b)For PRODUCTS which are not covered by a VALID CLAIM of
PATENTS where manufactured, used or sold, the royalty
shall be (CONFIDENTIAL TREATMENT HAS BEEN REQUESTED)%
of NET SALES PRICE.
3.3 HPC shall make the following milestone payments to
MEDIMMUNE for PRODUCTS, which milestone payment shall be
due and payable within thirty (30) days after the milestone
event is achieved by or on behalf of HPC or an AFFILIATE of
HPC or a licensee of HPC:
(i) (CONFIDENTIAL TREATMENT HAS BEEN REQUESTED)U.S.
Dollars ($(CONFIDENTIAL TREATMENT HAS BEEN REQUESTED)) upon
the first filing of a Product License Application in the
United States or equivalent outside the United States for
the first PRODUCT;
(ii) (CONFIDENTIAL TREATMENT HAS BEEN REQUESTED)U.S.
Dollars ($(CONFIDENTIAL TREATMENT HAS BEEN REQUESTED)) when
cumulative NET SALES PRICE of PRODUCT(S) sold by HPC and/or
its AFFILIATES and/or licensees exceed (CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED) U.S. Dollars ($(CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED)); and
(iii) (CONFIDENTIAL TREATMENT HAS BEEN REQUESTED)U.S.
Dollars ($(CONFIDENTIAL TREATMENT HAS BEEN REQUESTED)) when
cumulative NET SALES PRICE of PRODUCT(S) sold by HPC and/or
its AFFILIATES and/or licensees exceed (CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED) U.S. Dollars ($(CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED)). The milestone payments
provided in this Section 3.3 shall only be made once and
shall not be creditable or refundable.
3.4 Royalty obligations under this Agreement and any agreements
that HPC shall enter into with a licensee with respect to
PRODUCT shall terminate on a country-by-country and PRODUCT-
by-PRODUCT basis on the later of (i) ten (10) years after
first country-wide launch of the first PRODUCT in each
country or (ii) expiration of the last to expire PATENT
which covers the making, having made, importing, exporting,
offering to sell or using or selling of each PRODUCT in
each country.
3.5 All payments to be made hereunder shall be in United States
Dollars and by wire transfer, or other commercially
reasonable method of transfer, of immediately available
funds to an account designated by MEDIMMUNE.
3.6 No multiple royalties shall be payable because any PRODUCT,
or its manufacture or sale are or shall be covered by more
than one PATENT licensed under this Agreement.
SECTION 4 - TRANSFER OF LICENSED TECHNOLOGY
4.1 MEDIMMUNE and HGS, as the case may be, shall promptly
transfer the LICENSED TECHNOLOGY described in Exhibit A,
attached hereto and made a part hereof which is
CONFIDENTIAL INFORMATION to HPC.
4.2 During the first year of this Agreement MEDIMMUNE or HGS as
the case may be, at HPC's reasonable request and expense
shall provide to HPC reasonable technical assistance with
respect to LICENSED TECHNOLOGY in order to assure that HPC
is able to access and use the LICENSED TECHNOLOGY
transferred under Section 4.1.
4.3 HPC agrees to maintain security measures for LICENSED
TECHNOLOGY which are similar to the measures currently
employed by HPC to safeguard its own CONFIDENTIAL
INFORMATION.
4.4 For the purpose of facilitating an understanding of the
research activities in the FIELD conducted by each party
hereunder, the PARTIES will permit duly authorized
employees or representatives of the other to visit its
facilities where the research is conducted, at reasonable
times and with reasonable notice.
4.5 The transfer of one PARTY's materials to the other PARTY
pursuant to this Section shall not be considered to
transfer title to the materials or their progeny, but shall
be considered a bailment for the benefit of both PARTIES.
SECTION 5 - CONFIDENTIALITY.
5.1 During the term of this Agreement, it is contemplated that
each PARTY will disclose to the other CONFIDENTIAL
INFORMATION. Each PARTY agrees to retain the other party's
CONFIDENTIAL INFORMATION in confidence and not to disclose
any such CONFIDENTIAL INFORMATION to a third PARTY without
the prior written consent of the disclosing PARTY and to
use the other PARTY's CONFIDENTIAL INFORMATION only for the
purposes of this Agreement. In addition to the obligations
of confidentiality set forth above in this Section 5.1, HPC
and MEDIMMUNE each agree (i) not to publish LICENSED
TECHNOLOGY or HPC TECHNOLOGY which is CONFIDENTIAL
INFORMATION prior to a publication of HGS TECHNOLOGY by
TIGR, and (ii) that investigators from TIGR shall be
included as co-authors of such publications by HPC or
MEDIMMUNE if reasonably warranted.
5.2 The obligations of confidentiality of Section 5.1 and the
definition of CONFIDENTIAL INFORMATION will not apply to
data, information and materials that:
(a)was known to the receiving PARTY or generally known to
the public prior to its disclosure hereunder; or
(b)subsequently becomes known to the public by some means
other than a breach of this Agreement, or, with respect
to HGS TECHNOLOGY and MEDIMMUNE TECHNOLOGY,
subsequently becomes known to the public by disclosure
or publication by HGS, MEDIMMUNE or The Institute for
Genomic Research ("TIGR");
(c)is subsequently disclosed to the receiving PARTY by a
third party having a lawful right to make such
disclosure;
(d)is required by law or bona fide legal process to be
disclosed, provided that the PARTY required to make the
disclosure takes all reasonable steps to restrict and
maintain confidentiality of such disclosure and
provides reasonable notice to the PARTY providing the
disclosure; or
(e)is approved for release by the PARTIES, or
(f)is independently developed by the employees or agents
of either PARTY without any knowledge of the
CONFIDENTIAL INFORMATION provided by the other PARTY.
5.3 Notwithstanding Paragraph 5.1, HPC may disclose and/or
provide LICENSED TECHNOLOGY to a third party who (i)
receives a license from HPC to LICENSED TECHNOLOGY in
conjunction with a license to a PRODUCT in the FIELD as
permitted under this Agreement, or (ii) is a third party
contractor assisting HPC with respect to research and
development of a PRODUCT in the FIELD, provided that such
third party agrees to confidentiality and non-use
obligations essentially identical to Paragraph 5.1, and
further provided that such third party agrees to be bound
by the obligations of Paragraph 2.6. It is expressly
understood that inventions and developments of any such
third party shall be HPC TECHNOLOGY to the extent that they
fall within the definition thereof.
5.4 All CONFIDENTIAL INFORMATION disclosed by one PARTY to
another PARTY shall remain the intellectual property of the
disclosing PARTY. In the event that a court or other legal
or administrative tribunal, directly or through an
appointed master, trustee or receiver, assumes partial or
complete control over the assets of a PARTY to this
Agreement based on the insolvency or bankruptcy of such
PARTY, the bankrupt or insolvent PARTY shall promptly
notify the court or other tribunal (i) that CONFIDENTIAL
INFORMATION received from another PARTY under this
Agreement remains the property of the other PARTY and (ii)
of the confidentiality obligations under this Agreement.
In addition, the bankrupt or insolvent PARTY shall, to the
extent permitted by law, take all steps necessary or
desirable to maintain the confidentiality of the other
PARTY's CONFIDENTIAL INFORMATION and to insure that the
court, other tribunal or appointee maintains such
information in confidence in accordance with the terms of
this Agreement.
5.5 Neither HPC, MEDIMMUNE nor HGS shall, without the prior
written consent of the others, issue any press release or
make any other public announcement or furnish any statement
to any person (other than either PARTIES' respective
AFFILIATES) concerning the existence of this Agreement and
the transactions contemplated by this Agreement, except for
(i) disclosures made in compliance with Sections 5.1, 5.2
and 5.3, hereof, (ii) attorneys, consultants, and
accountants retained to represent them in connection with
the transactions contemplated hereby and (iii) occasional,
brief comments by the respective officers of HPC, MEDIMMUNE
and HGS consistent with such guidelines for public
statements as may be mutually agreed by HPC, MEDIMMUNE and
HGS made in connection with routine interviews with
analysts or members of the financial press. In addition,
each PARTY (after consultation with counsel) in its own
right may make such further announcements and disclosures,
if any, as may be required by applicable law, rule or
regulation in which case the PARTY making the announcement
or disclosure shall use its best efforts to give advance
notice to, and discuss such announcement or disclosure
with, the other PARTIES.
SECTION 6 - ROYALTY PAYMENTS AND RECORDS
6.1 HPC shall keep, and shall cause each of its AFFILIATES and
licensees to keep, full and accurate books of account
containing all particulars that may be necessary for the
purpose of calculating all royalties payable to MEDIMMUNE.
Such books of account shall be kept at their principal
place of business and, with all necessary supporting data
shall, for the three (3) years next following the end of
the calendar year to which each shall pertain be open for
inspection by an independent certified accountant
reasonably acceptable to HPC upon reasonable notice during
normal business hours at MEDIMMUNE' expense for the sole
purpose of verifying royalty statements or compliance with
this Agreement, but in no event more than once in each
calendar year. All information and data offered shall be
used only for the purpose of verifying royalties and shall
be treated as HPC CONFIDENTIAL INFORMATION subject to the
obligations of this Agreement. In the event that such
inspection shall indicate that in any calendar year that
the royalties which should have been paid by HPC are at
least (CONFIDENTIAL TREATMENT HAS BEEN REQUESTED) percent
((CONFIDENTIAL TREATMENT HAS BEEN REQUESTED)%) greater than
those which were actually paid to MEDIMMUNE, then HPC shall
pay the cost of such inspection and shall immediately pay
any royalty deficiency.
6.2 In each year the amount of royalty due shall be calculated
quarterly as of March 31, June 30, September 30 and
December 31 (each as being the last day of an "ACCOUNTING
PERIOD") and shall be paid quarterly within the following
sixty days, every such payment shall be supported by the
accounting prescribed herein and shall be made in United
States dollars. For the purpose of calculating royalties
conversion from any foreign currency, such conversion shall
be at the Exchange Rate published in the Wall Street
Journal under "Currency Trading," for the last business day
of the applicable ACCOUNTING PERIOD.
6.3 With each quarterly payment, HPC shall deliver to MEDIMMUNE
a full and accurate accounting to include at least the
following information on a country-by-country basis:
(a)Quantity of each PRODUCT subject to royalty sold (by
country) by HPC, its AFFILIATES and licensees.
(b)Total invoice and receipts for each PRODUCT subject to
royalty (by country);
(c)Calculation of NET SALES PRICE;
(d)Any other information reasonably requested by MEDIMMUNE
to permit MEDIMMUNE to determine royalties owed;
(e)Total royalties payable to MEDIMMUNE.
6.4 Any tax required to be withheld by HPC under the laws of
any foreign country for the account of MEDIMMUNE shall be
promptly paid by HPC for and on behalf of MEDIMMUNE to the
appropriate governmental authority, and HPC shall furnish
MEDIMMUNE with proof of payment of such tax. Any such tax
actually paid on MEDIMMUNE's behalf shall be deducted from
royalty payments due MEDIMMUNE.
SECTION 7 - REPRESENTATIONS AND WARRANTIES.
7.1 MEDIMMUNE represents and warrants that:
(a)the execution and delivery of this Agreement and the
performance of the transactions contemplated hereby
have been duly authorized by all appropriate MEDIMMUNE
corporate action;
(b)the performance by MEDIMMUNE of any of the terms and
conditions of this Agreement on its part to be
performed does not and will not constitute a breach or
violation of any other agreement or understanding,
written or oral, to which it is a PARTY;
(c)it has the full right and legal capacity to provide the
rights to the MEDIMMUNE PATENTS and MEDIMMUNE
TECHNOLOGY granted to HPC hereunder, and the rights to
provide rights to information and access granted under
Section 2;
(d)there are no outstanding agreements, assignments and
encumbrances to which MEDIMMUNE is a PARTY inconsistent
with the provisions of this Agreement;
(e)there are no adverse proceedings, claims or actions
pending, or to the best knowledge of MEDIMMUNE,
threatened, relating to the MEDIMMUNE PATENTS or
MEDIMMUNE TECHNOLOGY, and at the time of disclosure and
delivery thereof to HPC, to the best knowledge of
MEDIMMUNE it shall have the full right and legal
capacity to disclose and deliver the MEDIMMUNE PATENTS
or MEDIMMUNE TECHNOLOGY without violating the rights of
third parties.
(f)as of the EFFECTIVE DATE it has maintained the
MEDIMMUNE TECHNOLOGY as CONFIDENTIAL INFORMATION
consistent with the provisions of Section 5 hereof, it
will continue to maintain the MEDIMMUNE TECHNOLOGY as
CONFIDENTIAL INFORMATION until publication as provided
for herein, as of the EFFECTIVE DATE it has not
submitted any of the MEDIMMUNE TECHNOLOGY for
publication, and it will not publish any of the
MEDIMMUNE TECHNOLOGY prior to five months from the
EFFECTIVE DATE.
7.2 HPC represents and warrants that:
(a)the execution and delivery of this Agreement and the
performance of the transactions contemplated hereby
have been duly authorized by all appropriate HPC
corporate action;
(b)the performance by HPC of any of the terms and
conditions of this Agreement on its part to be
performed does not and will not constitute a breach or
violation of any other agreement or understanding,
written or oral, to which it is a party;
(c)it has the full right and legal capacity to provide the
rights to the HPC PATENTS and HPC TECHNOLOGY granted to
MEDIMMUNE hereunder;
(d)there are no outstanding agreements, assignments and
encumbrances to which HPC is a PARTY inconsistent with
the provisions of this Agreement; and
(e)there are no adverse proceedings, claims or actions
pending, or to the best knowledge of HPC, threatened,
relating to the HPC PATENTS or HPC TECHNOLOGY, and at
the time of disclosure and delivery thereof to
MEDIMMUNE, to the best knowledge of HPC it shall have
the full right and legal capacity to disclose and
deliver the HPC PATENTS or HPC TECHNOLOGY without
violating the rights of third parties.
7.3 HGS represents and warrants that:
(a)the execution and delivery of this Agreement and the
performance of the transactions contemplated hereby
have been duly authorized by all appropriate HGS
corporate action;
(b)the performance by HGS of any of the terms and
conditions of this Agreement on its party to be
performed does not and will not constitute a breach or
violation of any other agreement or understanding,
written or oral, to which it is a PARTY:
(c)HGS has provided MEDIMMUNE with the full right and
legal capacity under HGS intellectual property rights
necessary for MEDIMMUNE to provide the rights to the
MEDIMMUNE PATENTS and MEDIMMUNE TECHNOLOGY granted to
HPC hereunder;
(d)there are no outstanding agreements, assignments and
encumbrances to which HGS is a party inconsistent with
the provisions of this Agreement;
(e)there are no adverse proceedings, claims or actions
pending, or to the best knowledge of HGS, threatened,
relating to HGS' intellectual property interests in the
MEDIMMUNE PATENTS or MEDIMMUNE TECHNOLOGY, and at the
time of disclosure and delivery thereof to HPC, to the
best knowledge of HGS it shall have the full right and
legal capacity to disclose and deliver the HGS
intellectual property interests in the MEDIMMUNE
PATENTS or MEDIMMUNE TECHNOLOGY without violating the
rights of third parties.
(f)as of the EFFECTIVE DATE it has maintained the HGS
TECHNOLOGY as CONFIDENTIAL INFORMATION consistent with
the provisions of Section 5 hereof, it will continue to
maintain the HGS TECHNOLOGY as CONFIDENTIAL INFORMATION
until publication as provided for herein, as of the
EFFECTIVE DATE it has not submitted any of the HGS
TECHNOLOGY for publication, and it will not publish any
of the HGS TECHNOLOGY prior to five months from the
EFFECTIVE DATE.
7.4 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED FOR IN THIS
AGREEMENT, NO PARTY TO THIS AGREEMENT MAKES ANY
REPRESENTATIONS OR EXTENDS ANY WARRANTIES OF ANY KIND,
EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO,
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, NON-INFRINGEMENT OR VALIDITY OF ANY INTELLECTUAL
PROPERTY RIGHTS.
SECTION 8 - INDEMNIFICATION.
8.1 HPC shall defend, indemnify and hold harmless MEDIMMUNE,
HGS, licensors of MEDIMMUNE and HGS and each of their
respective directors, officers, shareholders, agents and
employees (each an "Indemnitee"), from and against any and
all liability, loss, damages and expenses (including
reasonable attorneys' fees) as the result of claims,
demands, costs or judgments which may be made or instituted
against any of them arising out of the manufacture,
possession, distribution, use, testing, sale or other
disposition of any PRODUCT by or through or on behalf of
HPC or any third party granted rights by HPC under this
Agreement or any third party that obtains PRODUCT from HPC.
HPC's obligation to defend, indemnify and hold harmless
shall include claims, demands, costs or judgments, whether
for money damages or equitable relief by reason of alleged
personal injury (including death) to any person or alleged
property damage, provided, however, the indemnity shall not
extend to any claims against an indemnified party which
result from the gross negligence or willful misconduct of
such indemnified party. The provisions of this paragraph
shall survive and remain in full force and effect after any
termination, expiration or cancellation of this Agreement
and the obligation hereunder shall apply whether or not
such claims are rightfully brought.
8.2 To the extent that HPC grants a license to MEDIMMUNE and/or
HGS pursuant to Section 9.1(b) hereof, then MEDIMMUNE
and/or HGS, as the case may be, (the "Indemnitor(s)") shall
defend, indemnify and hold harmless HPC, licensors of HPC
and each of their respective directors, officers,
shareholders, agents and employees (each an "Indemnitee"),
from and against any and all liability, loss, damages and
expenses (including reasonable attorneys' fees) as the
result of claims, demands, costs or judgments which may be
made or instituted against any of them arising out of the
manufacture, possession, distribution, use, testing, sale
or other disposition of any PRODUCT outside the FIELD by or
through or on behalf of the Indemnitor(s) or any third
party granted rights by the Indemnitor(s) or any third
party that obtains such PRODUCT from the Indemnitor(s).
The Indemnitor(s)' obligation to defend, indemnify and hold
harmless shall include claims, demands, costs or judgments,
whether for money damages or equitable relief by reason of
alleged personal injury (including death) to any person or
alleged property damage, provided, however, the indemnity
shall not extend to any claims against an indemnified party
which result from the gross negligence or willful
misconduct of such indemnified party. The provisions of
this paragraph shall survive and remain in full force and
effect after any termination, expiration or cancellation of
this Agreement and the obligation hereunder shall apply
whether or not such claims are rightfully brought.
8.3 An Indemnitee shall promptly notify the Indemnitor(s) of
any loss, claim, damage, liability, or action in respect of
which the Indemnitee intends to claim such indemnification,
and the Indemnitor, shall assume the defense thereof;
provided, however, that an Indemnitee shall have the right
to retain its own counsel, with the fees and expenses to be
paid by the Indemnitor if Indemnitor does not assume the
defense; or, if representation of such Indemnitee by the
counsel retained by the Indemnitor would be inappropriate
due to actual or potential differing interests between such
Indemnitee and any other party represented by such counsel
in such proceedings. The indemnity agreement in this
Section 8 shall not apply to amounts paid in settlement of
any loss, claim, damage, liability or action if such
settlement is effected without the consent of the
Indemnitor, which consent shall not be withheld
unreasonably. The failure to deliver notice to the
Indemnitor within a reasonable time after the commencement
of any such action, if prejudicial to its ability to defend
such action, shall relieve such Indemnitor of any liability
to the Indemnitee under this Section 8, but the omission so
to deliver notice to the Indemnitor will not relieve it of
any liability that it may have to any Indemnitee otherwise
than under this Section 8. The Indemnitee under this
Section 8, its employees and agents, shall cooperate fully
with the Indemnitor and its legal representatives in the
investigations of any action, claim or liability covered by
this indemnification.
SECTION 9 - PATENTS
9.1 (a) Each party shall have and retain sole and exclusive
title to all inventions, discoveries, designs, works of
authorship and other know-how which are made, conceived,
reduced to practice or generated by its employees, agents,
or other persons acting under its authority. As to all
inventions, discoveries, designs, works of authorship and
other know-how made, conceived, reduced to practice or
generated jointly by employees, agents, or other persons
acting under the authority of MEDIMMUNE and/or HGS and HPC,
the parties shall own an equal undivided interest therein.
HPC shall be responsible for the filing, prosecution and
maintenance of HPC PATENTS and LICENSED PATENTS including
JOINT PATENTS which do not have significant commercial
utility outside the FIELD, but excluding (i) JOINT PATENTS
which do have significant commercial utility outside the
FIELD and (ii) those which are owned solely by HGS, and
shall be responsible for the cost and expense thereof. HGS
shall be responsible for the filing, prosecution and
maintenance of JOINT PATENTS which have significant
commercial utility outside the FIELD and LICENSED PATENTS
solely owned by HGS. HPC shall consult with MEDIMMUNE with
respect to strategies for filing, prosecution and
maintenance of patents and patent applications for which
HPC bears responsibility under this Section 9.1, and shall
keep MEDIMMUNE informed with regard to filing, prosecution
and maintenance activity for such patents and patent
applications, and with respect to such patents or patent
applications which are solely owned by MEDIMMUNE or which
are owned in part by MEDIMMUNE, HPC shall provide MEDIMMUNE
with proposed patent applications and responses to office
actions and official letters prior to filing thereof and in
sufficient time to permit MEDIMMUNE to provide comments
thereto. Similarly, HGS and HPC shall consult with and
keep each other informed as aforesaid with respect to JOINT
PATENTS for which it bears responsibility. HPC shall not
allow any MEDIMMUNE PATENT to lapse or become abandoned
without the written approval of MEDIMMUNE, which approval
shall not be unreasonably withheld. With respect to any
MEDIMMUNE PATENT which is jointly owned by HPC and as to
which HPC elects not to effect filing thereof or to
continue prosecution or maintenance thereof, HPC shall
assign HPC's interest therein to MEDIMMUNE as the case may
be. If HPC does not desire to file, prosecute or maintain a
patent or patent application to an invention, HPC shall
assign its ownership interest therein to MEDIMMUNE and
shall no longer be responsible for the cost and expense
thereof, and shall have no right to consult, review or
comment with respect to the filing, prosecution and
maintenance of said patent or patent application.
(b) In the case of JOINT INVENTIONS and JOINT PATENTS
which have significant commercial utility outside the
FIELD, and in the event that HGS or MEDIMMUNE intends to
use, license or sublicense rights to such JOINT INVENTIONS
or JOINT PATENTS outside the FIELD, then HPC hereby grants
to HGS or MEDIMMUNE, as the case may be, a sole and
exclusive, worldwide, sublicensable license of HPC'S
interest therein outside the FIELD, and HGS or MEDIMMUNE,
as the case may be, does hereby agree to pay HPC:
(i) A royalty of (CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED)percent ((CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED)%) of the NET SALES of PRODUCTS sold by HGS
or MEDIMMUNE or their AFFILIATES which are covered in
the country where manufactured, used or sold by a VALID
CLAIM of any JOINT PATENT which is licensed by HPC to
HGS or MEDIMMUNE hereunder; and
(ii)A royalty of (CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED) percent ((CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED)%) of any
royalties received by HGS or MEDIMMUNE for
PRODUCTS sold by a licensee or sublicensee
which in the country where manufactured, used
or sold are covered by a VALID CLAIM of any
JOINT PATENT which is licensed by HPC to HGS
or MEDIMMUNE hereunder.
9.2In the event of the institution of any suit by a third
party against MEDIMMUNE or HGS or its respective
licensees for patent infringement involving the
manufacture, use, import, export, offer for sale, sale,
distribution or marketing of a PRODUCT outside the
FIELD, MEDIMMUNE or HGS, as the case may be, shall
promptly notify HPC in writing. As between MEDIMMUNE
and/or HGS and HPC, MEDIMMUNE and/or HGS (but not HPC)
shall be solely or jointly responsible, as the case may
be, for the cost and expense of such action and any
liability which results therefrom.
9.3In the event that MEDIMMUNE or HPC becomes aware of
actual or threatened infringement of a LICENSED PATENT
anywhere in the LICENSED TERRITORY by the sale of
PRODUCT in the FIELD, that party shall promptly notify
the other party in writing. HPC shall have the first
right but not the obligation to bring, at its own
expense, an infringement action against any THIRD PARTY
with respect to a LICENSED PATENT as to which HPC
retains a license hereunder. If HPC does not commence
a particular infringement action within ninety (90)
days of such notice, MEDIMMUNE or HGS, as the case may
be, shall be entitled to bring such infringement
action, at its own expense. The PARTY conducting an
action under this Paragraph 9.3 shall have full control
over its conduct, including settlement thereof provided
such settlement shall not be made without MEDIMMUNE'S
or HGS' prior written consent if the action is brought
by HPC, which consent shall not be unreasonably
withheld, provided, however, that in any action brought
by HGS or MEDIMMUNE, such PARTY shall in good faith
consult with HPC regarding such litigation and consider
HPC's reasonable commercial interest in any settlement
of such litigation. The parties shall reasonably
assist one another and cooperate in any such litigation
at the other's request, each such party paying its own
costs and expenses. The party conducting the
litigation shall periodically reimburse the other
party for its reasonable and actual out-of-pocket
expenses for assisting in the litigation, which
reimbursement shall be made within thirty (30) days of
receipt by the party conducting the litigation of
itemized invoices from the assisting party documenting
such expenses.
9.4 Any recovery made by a party as the result of an action for
patent infringement it has conducted under Paragraph 9.3
shall be distributed as follows:
(i)The party conducting the action shall recover its
actual out -of-pocket expenses.
(ii) To the extent that the recovery exceeds the
total of item (i), the excess shall be kept by the
party conducting the action, provided, however, that to
the extent that (a) a recovery is made by HPC and is
based on an award of lost sales/profits, and (b) HPC
would have incurred a royalty obligation to MEDIMMUNE
based upon such sales, MEDIMMUNE shall receive a
proportion of the excess recovery corresponding to the
royalty percentage it would have otherwise been due.
9.5 The parties shall periodically keep one another reasonably
informed of the status of and of, their respective
activities regarding, any such litigation or settlement
thereof.
SECTION 10 - DUE DILIGENCE
10.1 HPC shall select and use commercially reasonable efforts
and diligence to research, develop and then sell at least
one PRODUCT. The efforts of a sublicensee and/or an
AFFILIATE of HPC shall be considered as efforts of HPC.
(b)In the event that MEDIMMUNE reasonably believes that HPC
is not making reasonable efforts under the circumstances to
research, develop and then sell a selected PRODUCT in the
FIELD then MEDIMMUNE shall provide written notice to HPC.
Upon receipt of such written notice, HPC shall submit a
reasonable development and/or marketing plan for PRODUCT in
the FIELD.
(c) In the event that HPC does not plan to research and
develop in good faith at least one PRODUCT in the FIELD,
HPC agrees to notify MEDIMMUNE in writing thereof.
(d)If HPC fails to submit a plan as required by Section
10.1(b) and/or exert the efforts set forth in the plan
MEDIMMUNE, in addition to any other remedy it may have,
shall have the option to terminate the Agreement and
licenses granted hereunder, pursuant to Section 12.2, which
termination shall take effect sixty (60) days after written
notice to HPC unless HPC submits a plan or exerts the
required efforts, as the case may be, prior to expiration
of such sixty (60) day period.
(e) Within sixty (60) days after the end of each calendar
year, HPC shall provide MEDIMMUNE with a written report
with respect to its efforts to research, develop &
commercialize PRODUCT in the FIELD for in such calendar
year.
SECTION 11 - ASSIGNMENT; SUCCESSORS.
11.1 This Agreement shall not, be assignable by either of the
parties without the prior written consent of the other
party (which consent shall not be unreasonably withheld),
except that either party may assign this Agreement to an
AFFILIATE or to a successor in interest or transferee of
all or substantially all of the portion of the business to
which this Agreement relates.
11.2 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
HPC Any such successor or assignee of a party's interest
shall expressly assume in writing the performance of all
the terms and conditions of this Agreement to be performed
by said party and such Assignment shall not relieve the
Assignor of any of its obligations under this Agreement.
SECTION 12 - TERM AND TERMINATION.
12.1 This Agreement, unless earlier termination as provided
herein shall remain in full force and effect until HPC's
obligations to pay royalties hereunder terminate pursuant
to Section 3.4, at which time HPC shall have a fully paid
up, non-cancelable license with respect to all PRODUCTS
manufactured, used, sold, imported or exported by HPC.
This Agreement may be extended or terminated, at any time,
by mutual agreement by the PARTIES in writing.
12.2 In the event that HPC fails to meet its obligations under
Sections 3 or 6, and such failure is not cured within sixty
(60) days after written notice to HPC. MEDIMMUNE, in
addition to any other remedy it may have, at its sole
option may terminate this Agreement.
12.3 Termination of this Agreement under Paragraph 12.2 shall be
without prejudice to any other rights or remedies which
MEDIMMUNE may have hereunder, whether or not such rights or
remedies arise from such breach which results in
termination.
12.4 A PARTY may terminate this Agreement upon notice to the
other PARTIES in the event of the filing by any other PARTY
of a petition in bankruptcy or for liquidation; the request
for or appointment of a receiver; execution upon any
portion of the relevant PARTY'S business or assets; the
relevant PARTY'S arrangement with or assignment for the
benefit of creditors; or the relevant PARTY'S becoming
unable to meet its obligations as they become due.
12.5 HPC's obligation to pay royalties hereunder shall survive
termination of this Agreement. In addition, the
obligations of Sections 5, 6 and 8 and of Paragraphs 2.3,
2.4, 12.3, 12.5 and 13.3 of this Agreement shall survive
any termination of this Agreement.
12.6 Upon termination of this Agreement for any reason, nothing
herein shall be construed to release either party from any
obligation that matured prior to the date of such
termination.
SECTION 13 - GENERAL PROVISIONS.
13.1 The relationship between MEDIMMUNE, HGS and HPC is that of
independent contractors. MEDIMMUNE, HGS and HPC are not
joint venturers, partners, principal and agent. master and
servant, employer or employee, and have no relationship
other than as independent contracting parties. MEDIMMUNE
shall have no power to bind or obligate HPC in any manner.
Likewise, HPC shall have no power to bind or obligate
MEDIMMUNE in any manner.
13.2 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.
13.3 This Agreement shall be construed and enforced in
accordance with the laws of the State of Maryland without
reference to its choice of law principles.
13.4 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.
13.5 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.
13.6 Notices. Any notices given pursuant to this Agreement
shall be in writing and shall be deemed to have been given
and delivered upon the earlier of (i) when received at the
address set forth below. or (ii) three (3) business days
after mailed by certified or registered mail postage
prepaid and property addressed, with return receipt
requested, or (iii) on the day when sent by facsimile as
confirmed by certified or registered mail. Notices shall
be delivered to the respective parties as indicated:
To MEDIMMUNE: MedImmune, Inc.
35 West Watkins Mill Road
Gaithersburg, MD 20878
ATTN: CEO
Copy to: Carella, Byrne, Bain, Gilfillan,
Cecchi, Stewart & Olstein
6 Becker Farm Road
Roseland, NJ 07068
Fax No. (201) 597-0250
ATTN: Elliot M. Olstein, Esq.
To HGS: Human Genome Sciences, Inc.
9410 Key West Avenue
Rockville, MD 20850
ATTN: CEO
To OraVax Merieux Co.: OraVax Merieux Co.
38 Sidney Street
Cambridge, MA 02139
ATTN: Lance Gordon
To Merieux OraVax S.N.C.: Merieux OraVax S.N.C.
58 Avenue Leclerc
69007 Lyon, France
ATTN: HervJ Tainturier
Copy to: Palmer & Dodge
One Beacon Street
Boston, MA 02108
Fax No. (617) 227-4420
ATTN: Michael Lytton
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date set forth above.
For MEDIMMUNE, INC. For MERIEUX ORAVAX S.N.C.
By: David M. Mott By: Paul Kirkconnell
David M. Mott Paul Kirkconnell
(Printed Name) (Printed Name)
President and
Operating Officer
(Title)
For ORAVAX MERIEUX CO. For HUMAN GENOME SCIENCES,
INC.
By: Thomas Monath
Thomas Monath
(Printed Name) (Printed Name)
(Title) (Title)
OraVax, Inc. and Pasteur Merieux SJrums & Vaccins S.A each hereby
guarantee that their respective AFFILIATES, including but not
limited to OraVax Merieux Co. and Merieux OraVax S.N.C. will
perform all obligations under this Agreement.
For ORAVAX, INC. For PASTEUR MERIEUX
SERUMS & VACCINS S.A.
By: Lance Gordon By: A. Lindberg
Lance Gordon A. Lindberg
(Printed Name) (Printed Name)
(Title) (Title)
EXHIBIT A
Specification for LICENSED TECHNOLOGY and Software Deliverables
(CONFIDENTIAL TREATMENT HAS BEEN REQUESTED)