Exhibit 10.2
CONFIDENTIAL TREATMENT
RESEARCH AGREEMENT
This Research Agreement (the "Research Agreement") is entered into this 7th
day of July, 2000 by and between Maret Corporation, (the "Sponsor") a Delaware
corporation with its place of business at 4041 MacArthur Blvd, Suite 375,
Newport Beach, California 92660, and the University of Southern California
("University"), a California non-profit educational institution incorporated
under the laws of the State of California.
RECITALS
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A. The parties have entered into Research Agreements, effective August 31,
1994, and dated July 18, 1997, as amended.
B. The Research contemplated by this Research Agreement is of mutual interest
and benefit to the University and to Sponsor, will further the instruction,
scholarship and objectives of the University in a manner consistent with its
status as a non-profit, tax exempt, educational institution, and may derive
benefit for both Sponsor and University through inventions, improvements and
discoveries.
C. Under the terms of certain agreements, University, Gere S. Dizerega, and
Kathleen Rodgers currently own a significant number of Sponsor's shares of stock
and options.
D. Contemporaneous with the execution of this Research Agreement, the License
Agreement by and between the Sponsor and University is being amended.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and mutual covenants herein
contained, the parties agree as follows:
1. Definitions
1.1 "Research" shall mean the projects where protocols have been mutually
agreed to by Sponsor and Gere S. dizerega, M.D. ("Principal Investigator") prior
to commencement of work, under the direction of the Principal Investigator.
1.2 "University Intellectual Property" shall mean individually and
collectively all inventions, improvements, discoveries, technology, and
copyrights whether or not covered by intellectual property protection which are
conceived or made by one or more employees of the University in the performance
of the Research in the Field of Use (as that term is defined in the License
Agreement).
1.3 "License Agreement" shall mean the License Agreement between the
University and Sponsor, dated August 31, 1994, as amended by Amendment No.1 to
the License Agreement and as hereinafter amended from time to time.
2. Research Work
2.1 The University shall use reasonable efforts to perform the Research
substantially in accordance with the terms and conditions of this Research
Agreement. Anything in this Research Agreement to the contrary notwithstanding,
Sponsor and University may at any time amend the Research by written
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mutual agreement.
2.2 In the event that the Principal Investigator becomes unable or unwilling
to continue the Research and a mutually acceptable substitute is not available,
University or Sponsor shall have the option to terminate this Research
Agreement.
3. Period of Performance
3.1 The period of performance of this Research Agreement is June 30, 2000
through December 31, 2000 (the "Period of Performance"). This Research Agreement
shall become effective upon the date of last signature hereto and shall continue
in effect for the full duration of the period of performance unless sooner
terminated in accordance with the provisions of Article 13.
4. Reports and Data
4.1 The Principal Investigator shall furnish Sponsor with (i) written project
protocols prior to undertaking any work under this Research Agreement, (ii)
written [ * ] summary reports, and (iii) written reports, including data, on
completion of each project.
5. Cost, Billings and Other Support
5.1 All payments to be made by Sponsor under the terms of the Research
Agreement are set forth in Exhibit A.
5.2 Checks shall be made payable to the University of Southern California,
Federal ID No.95-1642394, and sent to:
University of Southern California
Department of Contracts and Grants
2250 Alcazar St., CSC 219,
Los Angeles, California 90033
Attention: Dale Odano-Carreon
5.3 In the event of termination of this Research Agreement pursuant to Article
13 hereof, the [ * ] as of the date of termination, including non-cancelable
obligations. Such obligations shall include all non-cancelable graduate
fellowships and appointments called for in Appendix A incurred prior to the date
of termination. After termination, any obligation of the Sponsor for graduate
fellowships and appointments shall end no later than the end of the University's
academic year during which termination occurs.
6. Publicity
6.1 Sponsor may cite that it has a Research Agreement with the University
regarding technology from the University Keck School of Medicine. Neither party
shall use the name, tradename, trademark or other designation of the other party
in connection with any products, promotion or advertising without the prior
written permission of the other party. The University acknowledges that
communications with prospective investors, lenders and other business affiliates
as well as the SEC and other regulatory agencies will require disclosure of the
Sponsor and University's relationship. The University retains the right to a
prior review of any disclosure of the relationship with the Sponsor.
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7. Publications
7.1 University shall have the right, at its discretion, to release information
or to publish any material resulting from the Research. University shall furnish
Sponsor with a copy of any proposed publication [ * ] days prior to submission
for publication for review and comment. Sponsor may request University to delay
publishing such proposed publication for a maximum of an additional [ * ] days
in order to protect the potential patentability of any invention described
therein.
8. Confidentiality
8.1 During the course of this Research Agreement, either party may provide the
other with certain information, data, or material in writing, which the
disclosing party has clearly marked as confidential or proprietary in nature.
The receiving party shall receive and hold such information in confidence and
agrees to use its reasonable efforts to prevent disclosure to third parties of
said information in the manner the receiving party treats its own similar
information.
8.2 Except as provided in Sections 6 and 8.3, the University agrees to keep
confidential all information related to the Research or Field of Use (as that
term is defined in the License Agreement) that is in its possession or comes
into its possession during the term of this Agreement.
8.3 The receiving party shall not consider either information disclosed to it
by disclosing party or information concerning the Research or Field of Use (as
that term is defined in the License Agreement) confidential which: (1) is now
common knowledge or subsequently becomes such through no breach of this Research
Agreement; (2) is rightfully in receiving party's possession prior to disclosing
party's disclosure as shown by written records; (3) is disclosed to receiving
party by an independent third party; or (4) is independently developed by or for
receiving party without benefit of confidential information received from
disclosing party.
9. Intellectual Property
9.1 All rights and title to University Intellectual Property under the
Research shall belong to University and shall be subject to the terms and
conditions of this Research Agreement and the License Agreement.
9.2 The provision of Section 2h (and all other provisions pertaining to
"Technology" as defined in the License Agreement) and Section 7 of the License
Agreement are hereby incorporated into and made a part of this Research
Agreement as if fully set forth herein. The parties shall comply with the
provisions of Sections 2h (and such other provisions) and 7 as to any
application of University Intellectual Property.
10. Grant of Rights
10.1 Without diminishing the rights granted Sponsor under Section 9.2,
consistent with the terms of this Research Agreement and the License Agreement,
University grants Sponsor an option to license, with the right to sublicense,
patents and patent applications of the University Intellectual Property.
University and Sponsor shall negotiate the terms of any such license in good
faith.
11. Arbitration
11.1 Any controversy or claim between the parties arising out of or relating to
this Research Agreement, or a breach thereof, which cannot be resolved by mutual
agreement, shall be settled by binding arbitration conducted by a single
arbitrator in accordance with the Commercial Arbitration
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Rules of the American Arbitration Association, and any judgment upon the award
rendered by the arbitrator may be entered in any Court having jurisdiction
thereof. Any such arbitration shall be held in the County of Los Angeles,
California.
12. Export
12.1 Sponsor agrees that it will at all times be in compliance with the United
States government export regulations and laws and that any sub-sponsor agreement
will require that the sub-sponsor is in compliance with these regulations and
laws. The Sponsor asserts that it is not now doing business with any country to
which the United States government prohibits export of products under
consideration in this Research.
13. Termination
13.1 Either party may terminate this Research Agreement upon [ * ] days prior
written notice to the other.
13.2 Termination of this Research Agreement by either party for any reason
shall not affect the rights and obligations of the parties accrued prior to the
effective date of termination.
14. Warranties
14.1 University agrees to perform the Research in accordance with prevailing
professional standards.
14.2 University represents and warrants that it is the owner of University
Intellectual Property.
14.3 University represents and warrants that it is the owner of the Research.
14.4 EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, UNIVERSITY MAKES NO
WARRANTIES FOR ANY PURPOSE WHATSOEVER, EXPRESS OR IMPLIED, AS TO THE RESEARCH OR
THE RESULTS OF THE RESEARCH, INCLUDING THE MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OF THE RESEARCH OR THE RESULTS OF THE RESEARCH UNDER THIS
RESEARCH AGREEMENT. Neither the Principal Investigator, Sponsor, nor any other
person is authorized to give any such warranty in the name of or on behalf of
University.
14.5 Sponsor agrees that it will not rely solely upon technical information
provided by University or the Principal Investigator in developing any invention
or product, but will independently test, analyze and evaluate all inventions and
products prior to manufacture and distribution of such inventions and products.
15. Insurance and Indemnification
15.1 University agrees to maintain adequate liability insurance, such
protection being applicable to officers, employees and agents while acting
within the scope of their employment by University.
15.2 Sponsor agrees to hold harmless, indemnify and defend University, its
trustees, officers, employees and agents from all liabilities, demands, damages,
expenses and losses arising out of (i) performance of this Research Agreement,
except to the extent of University's gross negligence or willful misconduct,
(ii) Sponsor's use of the results of the Research, or (iii) Sponsor's use,
manufacture or sale of products or inventions made by use of the results of the
Research. The provisions of this paragraph shall survive completion or
termination of this Research Agreement.
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15.3 Sponsor warrants that at its sole cost and expense it maintains in effect
a policy or program of comprehensive general liability insurance or
self-insurance in single limit coverage of not less than [ * ] per incident and
[ * ] annual aggregate for death, bodily injury, illness or property damage to
support the indemnification obligations assumed herein. Such policy shall name
University as an additional insured and shall provide for not less than [ * ]
days prior written notice before any cancellation or material change in coverage
shall be effective. A Certificate evidencing the comprehensive general liability
policy shall be delivered to University upon request.
16. Independent Contractor
16.1 University is an independent contractor under this Research Agreement and
not an agent, servant, employee, associate, joint venture or partner of Sponsor.
17. Governing Law
17.1 University and Sponsor agree to abide by all Federal, State, and local
laws, rules, regulations, and ordinances in the performance of this Research
Agreement.
17.2 This Research Agreement shall be governed and construed in accordance with
the laws of the State of California.
18. Attorneys' Fees
18.1 In the event litigation or arbitration is commenced to enforce any of the
terms of this Research Agreement, the prevailing party shall recover, as part of
the award and judgement, its reasonable attorneys' fees and costs of such
litigation or arbitration from the nonprevailing party.
19. Assignment
19.1 Neither party shall assign this Research Agreement except with the prior
written consent of the other party, which consent will not be unreasonably
withheld; provided however, Sponsor shall have the right to assign without the
consent of the University this Research Agreement to any entity that acquires
substantially all of its business whether by purchase of assets, stock transfer,
merger, consolidation or otherwise.
19.2 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 Sponsor and University. 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.
20. Waiver and Severability
20.1 No waiver by either party of any breach of any provision hereof shall
constitute a waiver of any other breach of that or of any other provision
hereof.
20.2 In the event a court or governmental agency of competent jurisdiction
holds any provision of this Research Agreement to be invalid, such holding shall
have no effect on the remaining provisions of this Research Agreement, and they
shall continue in full force and effect. Upon such holding, the parties shall,
within a reasonable period of time, determine whether the severed provision(s)
detrimentally and materially affect the obligations or performance of either or
both parties. If so affected, the parties shall, within a reasonable period of
time, negotiate in good faith to modify this Research Agreement to relieve
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such effects. If such negotiations do not result in mutually agreeable
modification to this Research Agreement, notwithstanding the provisions of
Article 13 herein either effected party may terminate this Research Agreement
upon providing the other party with [ * ] days written notice of such
termination.
21. Research Agreement Modification
21.1 This Research Agreement may be modified or amended, including extension of
the term of this Research Agreement, at any time only by a written amendment
executed by both parties.
22. Notices
22.1 Any notices given under this Research Agreement shall be in writing and
delivered to the following addresses by return receipt mail, postage prepaid; by
overnight courier service; or by facsimile transmission. Such notices shall be
effective upon the third business day following mailing, if by mail; upon
receipt, if by courier; or upon confirmation of successful transmission, if by
facsimile.
For Sponsor:
Maret Corporation
Dr. Terence E. Winters, Chief Executive Officer
4041 MacArthur Blvd., Suite 375
Newport Beach, CA 92660
For University:
University of Southern California
Department of Contracts and Grants
2250 Alcazar Street, CSC-219
Los Angeles, CA 90033
Attn: Dale Odano-Carreon
Copy to: Dr. Gere S. dizerega
23. Third Party Rights
23.1 This Research Agreement shall not create any rights, including without
limitation third-party beneficiary rights, in any person or entity not a party
to this Research Agreement.
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24. Entirety
24.1 The Research Agreements, and the Developers Agreement, License Agreement,
Consulting Agreements, Purchasers and Principal Shareholder Agreement, and the
Registration Rights Agreement constitute the entire understanding between the
parties hereto and there are no collateral, oral or other agreements or
understandings. This Research Agreement supersedes any prior oral or written
Research Agreement between the parties; provided however, that this provision
will not negate the effectiveness or otherwise modify the provisions of the
prior Research Agreements, as amended.
IN WITNESS WHEREOF, the parties have executed this Research Agreement in two or
more counterparts, each as an original and all together as one instrument as of
the date of last signature below written.
MARET CORPORATION UNIVERSITY OF SOUTHERN CALIFORNIA
By: /s/ Terence E. Winters, Ph.D. By: /s/ Lloyd Armstrong, Jr.
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Name: Terence E. Winters, Ph.D. Name: Lloyd Armstrong, Jr.
Title: Chief Executive Officer, Title: Provost & Senior Vice
Maret Corporation President for Academic
Affairs
Date: 7/13/2000 Date: 7/7/2000
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/s/ Gere S. di Zeraega, M.D.
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Gere S. diZerega, M.D.
Principal Investigator
Date: 7/8/2000
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Appendix A
USC Payment Schedule
July - December 2000
[ * ]
*Confidential Treatment Requested. Omitted portions filed with the Commission.
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