SPONSORED RESEARCH AGREEMENT
----------------------------
This agreement ("Agreement") is between Duke University("Duke"),
a North Carolina non-profit corporation, located in Durham, North Carolina,
and CISTRON Biotechnology, Inc. ("Sponsor"), a Delaware corporation.
WHEREAS, the research program contemplated by this Agreement is of
mutual interest and benefit to Duke and Sponsor, and will further the
instructional and research objectives of Duke in a manner consistent with
its status as a non-profit educational institution.
NOW, THEREFORE, the parties agree as follows:
ARTICLE 1 - STATEMENT OF WORK
-----------------------------
Duke agrees to use its best effort to perform the research program
described in the "Statement of Work" ("Statement"), a copy of which is
attached to this Agreement as Exhibit A.
ARTICLE 2 - INDEPENDENT CONTRACTOR
----------------------------------
Duke's relationship to Sponsor under this agreement will be that of
an independent contractor and not an agent, joint venturer or partner of
Sponsor.
ARTICLE 3 - PRINCIPAL INVESTIGATOR
----------------------------------
The research will be supervised by Herman F. Staats, Ph.D.
("Investigator") at Duke. If, for any reason Investigator is unable to
continue to serve as Principal Investigator and a successor acceptable to
both Duke and Sponsor is not available, the Agreement will be terminated in
accordance with Article 7 below.
ARTICLE 4 - CONSIDERATION
-------------------------
In consideration of the foregoing, and as more specifically provided
in the budget included as Exhibit B, Sponsor will pay Duke for all direct and
indirect costs incurred in the performance of the research as set forth in
the Statement, a total not to exceed $78,543.00. Payment of one third of
the total amount, or $26,181.00, will be due upon signature by Sponsor,
payment of one third of the total amount will be due upon completion of
Project 1, and payment of the remaining one third of the total amount will
be due upon completion of Project 3.
ARTICLE 5 - PERIOD OF PERFORMANCE
---------------------------------
The research will be conducted during an eight-month period commencing
on September 1, 1998 and concluding on or before April 30, 1999. This
agreement will be renewable for additional periods upon the mutual consent
of the parties by a new agreement or by amendment hereto expressed in
writing. Either party may terminate this Agreement on any anniversary date
of this Agreement after the first anniversary date by giving the other
party at least sixty (60) days prior written notice of such
- page 1 of 6 -
2
termination. In the case of such termination, Duke will proceed in an
orderly fashion to terminate any outstanding commitments and to stop the
work as soon as it is practicable to do so. All reasonable costs to Duke
associated with termination will be considered reimbursable costs,
including costs incurred prior to the notice of termination but which have
not yet been reimbursed, and commitments existing at the time the notice
of termination is received which cannot be cancelled.
ARTICLE 6 - RESEARCH REPORTS
----------------------------
Duke will provide Sponsor with one-page biweekly status reports on the
research. In addition, Duke will provide Sponsor with a final report on
such research within sixty (60) days of completion of the research
described herein or termination of this Agreement.
ARTICLE 7 - TERMINATION
-----------------------
In the event that either party commits a breach or default in any of
the terms or conditions of this Agreement and that party fails to remedy that
default or breach within thirty (30) days after receipt of written notice
of that breach from the other party, the party giving notice may, at its
option and in addition to any other remedies it may have in law or in
equity, terminate this Agreement by sending written notice of termination
to stop the work as soon as it is practicable to do so. In the case of
termination by Sponsor for reasons other than breach of this Agreement by
Duke, all costs to Duke associated with termination will be considered
reimbursable costs, including costs incurred prior to the notice of
termination but which have not yet been reimbursed, and commitments
existing at the time the notice of termination is received which cannot be
cancelled. In no case will reimbursement under this Agreement exceed the
total estimated project costs specified in Exhibit B.
ARTICLE 8 - CONFIDENTIAL INFORMATION
------------------------------------
"Confidential Information" ("Information") shall mean all information
provided by one party to the other and clearly identified as confidential
by the transmitting party at the time of disclosure. Specifically excepted
from this definition is all information: (a) known by the receiving party
at the time of disclosure; (b) publicly disclosed except by breach of this
Agreement; (c) rightfully received by the receiving party from a third
party without an express obligation of confidence; and (d) independently
developed by the employees or agents of either party without any knowledge
of the confidential information provided by the other party. The party
receiving the Information agrees to hold that Information in trust and
confidence for the transmitting party, using the same care and discretion
that the receiving party uses with similar Information which it considers
confidential. The receiving party will not use Information other than for
the benefit of the two parties and relating to the Agreement and except as
may be provided for in Article 9 regarding publication herein, neither
party will disclose such information without authorization from the other
party. Duke will not disclose the results of the research to third parties
except through the publications provisions of Article 9. This provision
shall remain in effect during the term of this Agreement and for three (3)
years thereafter.
- page 2 of 6 -
3
ARTICLE 9 - PUBLICATION AND OTHER USE
-------------------------------------
Duke shall be free to use the results of the subject research for its
own teaching, research, educational, clinical and publication purposes without
the payment of royalties or other fees. All such use shall be subject to
the confidentiality provisions of Article 8. Duke agrees to submit to
Sponsor for its review, a copy of any proposed publication resulting from
the subject research at least sixty (60) days prior to the estimated date
of publication, and if no response is received within thirty (30) days of
the date submitted to Sponsor, it will be conclusively presumed that the
publication may proceed without delay. If Sponsor determines that the
proposed publication contains patentable subject matters which require
protection, Sponsor may require the delay of the publication for a period
of time not to exceed sixty (60) days for the purpose of allowing the
pursuit of such protection.
ARTICLE 10 - INVENTIONS
-----------------------
It is recognized and understood that certain existing inventions and
technologies are the separate property of Sponsor or Duke and are not
affected by this Agreement, and neither party shall have any claims to or
rights in such separate inventions and technologies. Any new invention,
development, or discovery ("Invention") resulting from the subject
research shall be promptly disclosed in writing to Sponsor. Inventorship
of any such Invention shall be determined in accordance with patent law,
or by mutual agreement based upon the relative contributions of the
parties if the Invention is not patentable. All Inventions that represent
a reduction to practice of Sponsor's conception as described through
written documentation shall be the sole and exclusive property of Sponsor.
Title to other Inventions shall reside with Sponsor if Sponsor personnel
are the sole inventors, with Duke if Duke personnel are the sole
inventors, and will be held jointly if both Duke and Sponsor personnel are
inventors. To the extent that Duke owns the right of sole or joint
inventorship of an Invention, Sponsor is hereby granted, without option
fee other than the consideration of the research sponsored herein and the
reimbursement of Duke for all patent expenses related to the Invention
incurred by Duke prior to and during the option period, an option to
acquire an exclusive, worldwide fee and royalty-bearing license of Duke's
rights to any Invention, which option shall extend for ninety (90) days
after Sponsor's receipt of an Invention disclosure. Upon Sponsor's
exercise of the option, the parties shall promptly negotiate a license
agreement in good faith.
ARTICLE 11 - USE OF A PARTY'S NAME
----------------------------------
Neither party will, without the prior written consent of the other
party: (a) use in advertising, publicity or otherwise, the name of any
employee or agent, any trade-name, trademark, trade device, service mark,
symbol, or any abbreviation, contraction or simulation thereof owned by the
other party, or (b) represent, either directly or indirectly, that any
product or service of the other party is a product or service of the
representing party or that it is made in accordance with or utilizes the
information or documents of the other party. Sponsor may disclose any
information regarding this Agreement required by law to be disclosed.
ARTICLE 12 - NOTICE
-------------------
Any notice or other communication required or permitted under this
Agreement will be in writing and will be deemed given as of the date it
is: (a) delivered by hand, or (b) mailed, postage prepaid, first
- page 3 of 6 -
4
class, certified mail, return receipt requested, to the party at the
address listed below or subsequently specified in writing, or (c) sent,
shipping prepaid, return receipt requested, by national courier service,
to the party at the address listed below or subsequently specified in
writing:
As to Duke: Office of Grants and Contracts
107 Seeley G. Mudd Building
Duke University Medical Center - Box 3001
Durham, North Carolina 27710
cc: University Counsel
Duke University - 011 Allen Building
Durham, North Carolina 27708
As to Sponsor: CISTRON Biotechnology, Inc.
10 Bloomfield Avenue, Box 2004
Pine Brook, NJ 07058
Attn: Mr. Richard Dondero
cc: Seth Truwit, Esq.
Epstein, Becker & Green, P.C.
250 Park Avenue
New York, NY 10177-0077
This Agreement is for professional research services. Neither party may
assign, delegate or otherwise transfer any of its rights or obligations
under this Agreement without the prior written consent of the other party.
ARTICLE 13 - ENTIRE AGREEMENT
-----------------------------
This Agreement and all attached Exhibits contain the entire agreement
and understanding between the parties as to its subject matter. It merges all
prior discussions between the parties and neither party will be bound by
conditions, definitions, warranties, understandings, or representations
concerning such subject matter except as provided in this Agreement or as
specified on or subsequent to the effective date of this Agreement in a
writing signed by properly authorized representatives of the parties. This
Agreement can only be modified by written agreement duly signed by persons
authorized to sign agreements on behalf of both Sponsor and Duke.
ARTICLE 14 - WAIVER
-------------------
The failure of a party in any instance to insist upon the strict
performance of the terms of this Agreement will not be construed to be a
waiver or relinquishment of any of the terms of this Agreement, either at
the time of the party's failure to insist upon strict performance or at
any time in the future, and such terms will continue in full force and
effect.
-page 4 of 6-
5
ARTICLE 15 - SEVERANCE
----------------------
Each clause of this Agreement is a distinct and severable clause and
if any clause is deemed illegal, void or unenforceable, the validity,
legality or enforceability of any other clause or portion of this
Agreement will not be affected thereby.
ARTICLE 16 - GOVERNING LAW
--------------------------
The construction and performance of this Agreement will be governed
by the laws of the State of North Carolina.
ARTICLE 17 - TITLES
-------------------
All titles and articles headings contained in this Agreement are
inserted only as a matter of convenience and reference. They do not define,
limit, extend or describe the scope of this Agreement or the intent of any
of its provisions.
IN WITNESS WHEREOF, the parties hereunto set their hands and seals.
DUKE UNIVERSITY SPONSOR: CISTRON Biotechnology, Inc.
By:/S/RALPH SNYDERMAN M.D. By: /S/ RICHARD S. DONDERO
----------------------- -----------------------
Name: Ralph Snyderman, M.D. Name: Richard S. Dondero
Title: Chancellor for Health Affairs Title: V. P. - Operations and
Product Development
Date executed: 8/20/98 Date executed: 9/8/98
OS&T
8/25/98
#100488
READ AND ACKNOWLEDGED:
By: /S/ HERMAN F. STAATS 8/31/98
---------------------------
Herman F. Staats, Ph.D.
Principal Investigator
- page 5 of 6 -
6
EXHIBIT A - STATEMENT OF WORK
EXHIBIT B - TOTAL ESTIMATED PROJECT COSTS
- page 6 of 6 -