Exhibit 10.37.1


 


PharmAthene, Inc.


Confidential Materials Omitted and Filed Separately
with the


Securities and Exchange Commission


Confidential Portions denoted by [***]


 


PRIVATE BETWEEN THE PARTIES


 


AMENDED
AND RESTATED LICENCE AGREEMENT


 


between


 


THE
SECRETARY OF STATE FOR DEFENCE


 


as
represented by


 


THE
DEFENCE SCIENCE AND TECHNOLOGY LABORATORY (Dstl)


 


and


 


PHARMATHENE
UK LTD.


 


in
respect of


 


RECOMBINANT
[***] VACCINE


 

















 


PRIVATE BETWEEN THE PARTIES


 


THIS AMENDED AND RESTATED AGREEMENT is made the 5th day of  February, 2009


 


BETWEEN


 


THE SECRETARY OF
STATE FOR DEFENCE acting
through the Defence Science and Technology Laboratory [***] the “Licensor”) of the one part


 


AND


 


PHARMATHENE UK
LTD. Having an
address at Johnson Mathey Building, PO Box 88, Haverton Hill Road, Billingham,
Cleveland TS23 1XN (hereinafter referred
to as the “Licensee”)
of the second part hereinafter
referred to collectively as the “Parties” or in
the singular as a “Party”.


 


WHEREAS


 


A.                             Licensor and Avecia Limited entered into a Manufacturing
License Agreement as of May     , 2006, (the “License
Agreement”);


 


B.                               With the consent of Licensor, the License Agreement
was assigned by Avecia Limited to Avecia Biologics Limited;


 


C.                               The License Agreement was amended by a Letter
Agreement dated March 20, 2008 by and between Licensor and Avecia
Biologics Limited (the “Amended Agreement”);


 


D.                              With the consent of Licensor, Avecia Biologics
Limited assigned the Amended Agreement to Licensee;


 


E.                                Licensor and Licensee desire to amend and restate
the Amended Agreement.


 


NOW IT IS HEREBY
AGREED BETWEEN THE PARTIES AS FOLLOWS:-


 


1.              DEFINITIONS AND INTERPRETATION


 


1.1.                                     For the purposes of this Agreement, unless the
context clearly or necessarily indicates otherwise, the following words and
phrases shall have the meanings set forth below:


 


1.1.1.                                           “Agreement” shall mean this Amended and Restated Agreement.


 

















 


PRIVATE BETWEEN THE PARTIES


 


1.1.2.                                           “Commencement Date” shall mean the day and year first above written.


 


1.1.3.                                           “The Intellectual Property” shall mean the Patents and know-how, technical
information and materials (including but not limited to cell lines) owned by
the Licensor necessary or useful to develop, manufacture, have manufactured,
import use, keep, sell and offer to sell the [***] Vaccine.


 


1.1.4.                                           ““Licensed Product” shall mean a [***] Vaccine including but not limited
to a [***] Vaccine Dose, the manufacture, use, sale, keeping, importing or
exporting of which would, in the absence of the license granted under this
Agreement, constitute an infringement of the Patents (for the avoidance of
doubt, where the definition of Patents includes pending patent applications,
this includes doing anything in respect of a claim in a pending patent
application that had a patent been granted on such a claim would constitute
infringement of that claim) or that uses other Intellectual Property.


 


1.1.5.                                           “Net Sales Price” shall mean the actual sale price of Licensed Product
invoiced by the Licensee or, where applicable, a Partner of the Licensee less
any separate charges identified for packaging, transportation, insurance and
sales taxes and (where applicable) any royalties paid to any Third Party in
respect of the Licensed Product in question. If the Licensee sells or disposes
of any Licensed Product on otherwise than an arms length transaction basis at
the open full market price (eg to another company in the Licensee’s group  or under an off-set or barter agreement), the
open market price shall be taken as the actual sales price.


 


1.1.6.                                           “Patents” The patents and patent applications set out in
Schedule 1 and any equivalents thereof, and any divisionals, continuations,
continuations-in-part, re-filings or re-issues of any of the foregoing, and any
other patent applications or patents that would be infringed by manufacture,
use or sale of a [***] Vaccine or component thereof.


 


1.1.7.                                           “Partner” shall mean any Third Party organisation which the
Licensee elects to involve in the performance of a Supply Contract.


 


1.1.8.                                           “PIL” shall mean [***], [***] UK.


 


1.1.9.                                           [***] [***]


 

















 


PRIVATE BETWEEN THE PARTIES


 


1.1.10.                                     [***]


 


1.1.11.                                     “Process Validation Contract” means the contract dated May 10, 2006 between
Licensor and Avecia (Licensor reference [***]).


 


1.1.12.                                     “Process Validation Foreground IP” means intellectual property developed under the
Process Validation Contract that (i) relates solely to Vaccine [***] or (ii) relates
to the process for the manufacture of the Vaccine [***].


 


1.1.13.                                     “Supply Contract” shall mean a contract or contracts for the
production and/or supply of Licensed Product.


 


1.1.14.                                     “Third Party” shall mean any person other than the Government of
the United Kingdom.


 


1.1.15.                                     “Vaccine” means a [***] vaccine [***].


 


1.2.                            The singular shall include the plural and vice versa,
and the masculine shall include the feminine or the neuter gender and vice
versa.


 


1.3.                  Unless the context otherwise indicates, references to
Articles and Articles and Schedule, are to articles and Articles and the
Schedule of this Agreement.


 


1.4.                  Headings to Articles in this Agreement are included
for ease of reference only and shall not have any effect on the construction or
the interpretation of this Agreement.


 


1.5.                  References in this Agreement to any statute or
statutory provision shall include any statute or statutory provision which amends,
extends, consolidates or replaces the same and shall include any orders,
regulations, instruments or other subordinate legislation made under the
relevant statute.


 


2.                                     GRANT OF RIGHTS BY THE LICENSOR


 


2.1.                  In consideration for the payments to be made by the
Licensee to the Licensor under the provisions of Article 3 below, the
Licensor, warranting that he has the right to do so, hereby grants and the
Licensee hereby accepts a nonexclusive worldwide licence to use the
Intellectual Property to develop, make, or have made, use, keep, sell, offer to
sell, import and export Licensed Products.


 


2.2.                  Without prejudice to the provisions of Articles 2.3,
2.4 and 10.3 below, the Licensor undertakes that it shall not whilst this
licence remains in effect grant a licence to any third party for under the
Intellectual Property to make, have made, use, keep, export, sell or offer to
sell Licensed Products..


 

















 


PRIVATE BETWEEN THE PARTIES


 


2.3.                  For the avoidance of any doubt, the Licensor and any
other Department or Agency of the UK Government shall retain the right at any
time to use, or authorise others to use the Licensed Products for any UK
Government purpose or otherwise to the extent customary pursuant to standard UK
Ministry of Defence contracting procedures, and to dispose of products made in
consequence of such use but no longer required; and nothing in this Agreement
shall be construed as in any way limiting or derogating from such retained
rights, nor from any rights of the Crown arising under any other agreement or
contract or provision of law.


 


2.4.                  The restrictions imposed by Article 2.2 above
shall not prevent or restrict the use of any UK Government patent by or on
behalf of the US Government where such use is under the “Agreement between the
Government of the United Kingdom of Great Britain and Northern Ireland and the
Government of the United States of America to facilitate the interchange of
patents and technical information for defence purposes” done in London on 19th January 1953.
Furthermore the restrictions imposed by Article 2.2 above shall not be
deemed to prevent or hinder the UK Government from authorising any foreign
Government to use and have used the Intellectual Property where such use is in
furtherance of any formal international co-operative arrangement.


 


2.5.                  Save as permitted under Article 2.6 below, the
licence granted under this Agreement is personal to the Licensee and as such
shall not be assigned, sub-licensed, mortgaged or in any way dealt with by the
Licensee without the prior written consent of the Licensor, which consent shall
not be unreasonably withheld, provided that the Licensee may assign the licence
and this Agreement without consent in connection with a genuine business
reorganisation or to any corporation, association or other business entity
which directly or indirectly controls, is controlled by or is under common
control with the Licensee. For the avoidance of doubt, consent shall be deemed
to be reasonably withheld where the Chief Executive of Dstl receives written notice
from an appropriate authority at the Ministry of Defence or other UK Government
Department that assignment to such person would damage the essential public or
national interest. Any assignment, sub-licensing or mortgaging of this
Agreement by the Licensee, otherwise than as permitted by this Article 2.5,
without the prior written consent of the Licensor shall immediately invalidate
this Agreement and the licence granted hereunder.


 


2.6.                  Notwithstanding the provisions of Article 2.5
above, the Licensee shall be entitled to employ Partners to assist the Licensee
in exercising the 


 

















 


PRIVATE BETWEEN THE PARTIES


 


Licensee’s rights hereunder with respect to
Licensed Products subject to the provisions of Article 3 below.


 


2.7.                  Save as expressly stated under this Article 2
the Licensee is not authorised hereunder to grant to any Third Party any
sub-licence under the Patents or to pass to such Third Party any of the
Intellectual Property.


 


2.8.                  Should the Licensor wish to abandon a patent, patent
application or equivalent forming part of the Intellectual Property, it shall
offer it to the Licensee, which shall be entitled to maintain in force the said
patent, patent application or equivalent in the name of Licensor at the
Licensee’s expense but otherwise without charge and, the Licensee shall be
responsible for all further expenditure thereon. The Licensee shall retain a
royalty free non-exclusive license thereto pursuant to Section 2.1 that is
subject to Licensor’s obligations under Section 2.2.


 


2.9.                  At the request of Licensee, Licensor shall reasonably
consider expanding the license granted under Section 2.1 by amending the
definition [***] at no additional cost to Licensee.


 


3.                                     LICENCE PAYMENTS


 


3.1                       In consideration for the grant of rights by the
Licensor in Article 2 above, the Licensee shall pay to the Licensor a
royalty on each and every [***] Vaccine
Dose, equal to the greater of:


 


3.1.1                              [***] of the Net Sales Price of Licensed Product;


 


3.1.2                              [***] of the Net Sales Price of any Licensed Product
where such sale is to a Third Party and when Process Validation Foreground IP
has been used in the process for production of such Licensed Product; or


 


3.1.3                              [***].


 


Notwithstanding
the foregoing, no royalties shall be payable in respect of any samples of
Licensed Product which are provided by Licensee for clinical, product
development, marketing development or bona fide study purposes.


 


3.2                      Payment of the royalty as set out in Clause 3.1
discharges all obligations of the Licensee to pay any levies in respect of the
support given by the Licensor and the US and Canadian Governments pursuant to
the Process Validation Contract and, for the avoidance of doubt, 


 

















 


PRIVATE BETWEEN THE PARTIES


 


upon execution of this Agreement by the Licensor and the Licensee,
clause 6.10 of the Process Validation Contract shall no longer apply.


 


3.3                     If the UK Ministry of Defence, US Department of
Defense or the Department of Defense of the Government of Canada claims that
Licensed Products should be supplied free of royalties or at a reduced royalty
rate under an existing international agreement or arrangement mentioned in
Artciles 2.3 or 2.4 and seeks a waiver of any part of the royalty attributable
to Patents set out in Schedule 1, the Licensee shall inform the Licensor. If it
is agreed by the Licensor that such supply should be free of patent royalties
or at an appropriately reduced royalty, then the Licensor shall inform the
Licensee of the royalty (if any) that the Licensor will apply to the supply of
Licensed Products concerned. In such a case the notified royalty (if any) shall
be substituted for the royalty mentioned Article 3.1 in respect of the
relevant supply of Licensed Products.


 


3.4                     The royalty in respect of a Licensed Product shall
become payable by the Licensee under this Agreement when the cost of the
Licensed Product is invoiced by Licensee. Where the cost of a Licensed Product
is payable in two or more installments, the invoice for each installment will
be considered separately for the payment of royalties. If no invoice is issued,
royalty will become due on delivery of the Licensed Product concerned.


 


3.5                     The Licensee shall reimburse Licensor for the cost
and expense incurred by Licensor after the date of this Agreement for
prosecuting and maintaining Patents licensed to Licensee under this Agreement.


 


3.6                     The payments due under Articles 3.1 and 3.5 of this
Agreement will fall due half-yearly on 30 June and 31 December and
will be payable in accordance with the instructions contained in Articles 3.7
and 3.8 below.


 


3.7                     The Licensor has appointed PIL as its agent to act on
its behalf for the administration of royalties and other moneys due under this
Agreement.


 


3.8                     Within (60) days of the end of each half-year period
as mentioned in Article 3.5 hereof, the Licensee shall send to PIL (or as
otherwise advised) a true and complete statement in writing, including where
appropriate a Zero return, of the number of Licensed Products manufactured and
sold by or for Licensee during the relevant period, the Net Sales Price derived
from sales of such Licensed Products, and the royalty calculated to be payable
in respect thereof in accordance with the provisions of Article 3.1.


 

















 


PRIVATE BETWEEN THE PARTIES


 


3.9                     All payments due to the Licensor under this Agreement
shall be made by the end of the month following the month of the date of
receipt of an invoice from PIL and in accordance with the instructions issued
with the relevant invoice. All royalty statements, correspondence and payments
to PIL under the provisions of this Article 3 shall quote the PIL
reference [***].


 


3.10               All payments due to PIL shall be paid in pounds
Sterling plus, if applicable, VAT at the UK rate prevailing at the time of
payment. Where a payment due is in a currency other than pounds Sterling, the
rate of exchange to be applied shall be the rate of exchange applied by the
Bank of England on the date of the relevant invoice for Licensed Product(s) supplied
by the Licensee.


 


3.11               Without prejudice to the provisions of Article 10.2,
if the Licensee fails to make any payment to the Licensor within the time
specified in this Agreement, then the Licensee shall be liable to pay interest
on the outstanding payment calculated at [***] per annum with effect from the
date on which the payment originally fell due, where [***].


 


3.12               Subject to the provisions of Article 3.13 below,
the Licensee shall keep at its usual place of business proper records and books
of account showing the quantities and Net Sales Price of all Licensed Products
supplied by the Licensee and its Partners under this Agreement and such records
and books shall be kept separate from any records and books not relating solely
to the Licensed Products. Such records and books of account shall contain such
true entries (complete in every particular) as may be necessary or proper for
enabling the amount of the payments due to the Licensor under this Agreement to
be ascertained. The Licensor or PIL by giving no less than ten (10) working
days notice shall be entitled to inspect such records and books. The Licensee
shall, and shall ensure that its Partners shall, make the appropriate records
and books of account available to inspection at all times during office hours
by the Licensor or PIL or their duly authorised agent or representative who
shall be entitled to take copies of or extracts from the same. In addition to
the foregoing, the Licensee shall also provide the Licensor or PIL or their
duly authorised agent or representative with any other information which may be
necessary or appropriate with a view to determining or verifying the royalties
due under this Agreement. In the event that such inspection or audit should
reveal an underreporting in the royalties payable under this Agreement, the
Licensee shall make up any shortfall within thirty (30) days of written notification
and, in the event that the said shortfall is more than [***], shall reimburse
the Licensor or PIL in respect of any professional charges incurred for such
audit or inspection.


 

















 


PRIVATE BETWEEN THE PARTIES


 


3.13               The books of account referred to in Article 3.12
above shall be kept for a minimum of six years after any relevant transaction
and thereafter in accordance with applicable commercial law.


 


3.14               In accordance with the provisions of Article 11
(Consequences of Termination), the provisions of this Article 3 shall
continue to apply notwithstanding termination or expiry of this Agreement until
all royalties properly owed by the Licensee to the Licensor in accordance with
this Article 3 have been paid to the Licensor.


 


3.15               In the event that any of the patents, patent
applications or equivalents listed in the Schedule expire or are abandoned or
revoked, or are reduced in scope such that operation within the scope of a
patent claim to manufacture or sell Licensed Products is no longer necessary, but
it remains necessary for the Licensee to use some or all of the other
Intellectual Property in order to fulfill an extant order for the Licensed
Products, then the Licensee shall have the right to request a meeting of the
parties at which the parties shall negotiate in good faith with a view to
agreeing upon an appropriate reduction to the royalty payable under this
Agreement.


 


3.16               The Licensor may himself at any time, terminate the
arrangements with PIL by notice in writing to the Licensor and in which case “the
Licensor” will be substituted for PIL in this Artcile 3.


 


4.              OWNERSHIP, AND PROTECTION, OF INTELLECTUAL PROPERTY


 


4.1.                            Both of the Parties acknowledge that nothing
contained in this Agreement shall affect the ownership of any intellectual
property existing at the Commencement Date and which is owned by either of the
Parties.


 


4.2.                            Both the Parties acknowledge that nothing contained
in this Agreement shall affect the arrangements for the protection of
information which are contained in the Contracts.


 


4.3.                            The Licensee shall promptly and fully notify the
Licensor in writing of:


 


4.3.1.                                          any actual, threatened or suspected infringement by
any Third Party of the patents listed in Schedule 1 or, if granted, any patent
that might be granted pursuant to a patent application listed in Schedule 1


 


4.3.2.                                          any proceedings commenced or threatened against the
Licensee in which it is alleged that any patent listed in Schedule 1 is invalid
and/or its use would infringe Third Party rights, or that use of any of the
know how or 


 

















 


PRIVATE BETWEEN THE PARTIES


 


information, or material contained in any patent application listed in
Schedule 1 would infringe Third Party rights;


 


4.3.3.                                          that comes to the notice of the Licensee during the
term of this Agreement.


 


4.4.                            In the event that the Licensor decides (in the
circumstances referred to in Article 4.3.1 above) to institute any
proceedings or (in the circumstances referred to in Article 4.3.2 above)
to defend any proceedings instituted against the Licensee with respect to the
validity of a patent listed in Schedule 1, the Licensee shall render to the
Licensor at the Licensor’s expense such reasonable assistance in connection
with such proceedings as the Licensor may request.  For the avoidance of doubt, Licensee rather
than Licensor shall have the sole right to defend any proceeding against
Licensee as to infringement of Third Party rights.


 


4.5.                            Nothing herein shall oblige the Licensor to institute
proceedings in the circumstances referred to in Artcile 4.3.1 above, or to
defend any proceedings in the circumstances referred to in Artcile 4.3.2 above
with respect to the validity of a patent listed in Schedule 1.  In the event that the Licensor decides not to
institute proceedings in the circumstances referred to in Article 4.3.1 or
defend any proceedings in the circumstances of Article 4.3.2 above with
respect to the validity of a patent listed in Schedule 1, the Licensor will
allow the Licensee, if necessary in the Licensor’s name, to institute or defend
such proceedings at its own expense, in which event:


 


4.5.1.                                          the Licensee shall have sole control of the
proceedings and shall take or conduct such action in its discretion in any way
that it deems necessary or appropriate; and


 


4.5.2.                                          the Licensor shall render to the Licensee at the
Licensee’s expense such reasonable assistance (including performing such acts
and executing such documents) in connection with such proceedings, as the
Licensee may request; and


 


4.5.3.                                          the Licensee shall be responsible for all costs and
expenses arising therefrom and shall be solely responsible for any damages
payable to the third party and for satisfying any award or judgment in favour
of any third party and shall be solely entitled to the full benefit of all
remedies awarded including but not limited to all damages and other sums which
may be paid or awarded as a result thereof, except that in the event that
Licensee recovers damages in such an action, then Licensee shall pay Licensor
the lower of (i) [***].


 
















 


PRIVATE BETWEEN THE PARTIES


 


5.              WARRANTY AND LIABILITY


 


5.1.                             Nothing contained in this Agreement or in any licence
granted hereunder shall be construed as or deemed to be:-


 


5.1.1.                                          a representation or warranty that use of any the
Patents will not infringe any intellectual property rights owned by a Third
Party anywhere in the world; or


 


5.1.2.                                          an indemnity against costs, damages, royalties,
liabilities, expenses or other payments arising out of any proceedings based on
infringement brought against the Licensee or customers, agents or distributors
of the Licensee; and any such representation, warranty or indemnity is hereby
expressly excluded.


 


5.2.                             The Licensee shall at all times indemnify and keep
indemnified the Licensor against all costs, claims, damages or expenses
incurred by the Licensor for which the Licensor may become liable with respect
to any product liability claim relating to any products supplied or put into
use by the Licensee pursuant to this Agreement. The Licensee shall maintain
sufficient product liability insurance coverage to cover its commitments under
this Agreement.


 


5.3.                             The Licensor shall not be liable for any loss or
damage howsoever caused which results from the Licensee’s use of the Patents in
exercise of the Licensee’s rights under this Agreement and the Licensor gives
no warranty that anything contained in the Patents, any know-how or information
is suitable for any purpose.


 


6.              TAXATION


 


6.1.                             If any stamp taxes, registration taxes, turnover
taxes, or other taxes, duties or governmental charges are levied on this
Agreement by reason of its execution or performance, it shall be the
responsibility of the Licensee to pay all such taxes and charges when due.


 


6.2.                             The Licensee agrees to release and indemnify the
Licensor from and against any liability of whatever nature arising out of the
Licensee’s failure duly and timely to pay and discharge any of the
above-mentioned taxes.


 


7.              DISCLOSURES OF INFORMATION


 


7.1.                             Each Party will keep all know-how and other
information belonging to the other Party confidential and will not disclose it
to any Third Party.  


 

















 


PRIVATE BETWEEN THE PARTIES


 


Except either Party
shall have the right to disclose information and know-how of the other Party
where such Party engages a Third Party, including an agent (such as PIL) to
undertake anything in connection with this Agreement, or in connection with a
proposed or permitted assignment of or sublicense under this Agreement,
provided that the disclosing Party shall procure that the Third Party is bound
likewise to confidentiality obligations and any breaches of the confidentiality
obligations by such Third Party shall be treated as a breach of this Agreement
by the Party. In addition, the Licensee shall have the right to disclose
information, know-how and materials of Licensor in connection with obtaining
regulatory approval of a Licensed Product. 
This restriction does not apply to disclosures made in accordance with Article 7.2
below, or to:


 


7.1.1.                                          Any information which is or comes into the public
domain otherwise than through breach of this Agreement;


 


7.1.2.                                          Any information already known, at the time of its
disclosure, by the recipient;


 


7.1.3.                                          Any information received from a Third Party which has
the right to disclose the same;


 


7.1.4.                                          Any information that it is necessary to impart to
customers of the recombinant protective antigen Licensed Products to ensure its
safe and effective use.


 


7.1.5.                                          Any information required to be disclosed in
accordance with an applicable law, rule or regulation or pursuant to a
court order or legal proceeding, provided that the disclosing Party takes
reasonable available steps to protect the confidentiality thereof.


 


7.2.                             The Licensor permits the Licensee to disclose any
know-how and information owned or controlled by the Licensor and in the
possession of the Licensee as necessary or useful to secure from any government
or government agency contracts for the further development, manufacture and
supply of Licensed Products.


 


8.              EXPORT CONTROL


 


8.1.                             The Licensee shall be responsible for complying with
the applicable Export of Goods (Control) Order.


 


8.2.                             This Agreement does not grant authority for the
Licensee to export from the United Kingdom, any Licensed Product, or any
information relating thereto without any necessary licence under any applicable
Export of Goods (Control) Order. Any necessary export licence must 


 

















 


PRIVATE BETWEEN THE PARTIES


 


be made to the Export Licensing Unit of the Department of Trade and
Industry.


 


9.              COMING INTO EFFECT AND DURATION


 


9.1.                             This Agreement shall come into effect on the
Commencement Date and, unless terminated in accordance with the provisions of Article 10,
shall remain in effect indefinitely.


 


10.       TERMINATION


 


10.1.                       The Licensor shall have the right to terminate this
Agreement at any time forthwith by notice in writing to the Licensee on the
happening of any of the following events:


 


10.1.1.                                    if the Licensee is in breach of any of its
obligations under this Agreement, and fails to remedy such breach or fails to
take steps to substantially remedy the breach within thirty (30) days of a
written notice issued to it by the Licensor to do so; or


 


10.1.2.                                    if the Licensee shall have a Receiver or Liquidator
appointed to the whole or any part of its assets or if an Order shall be made
or any resolution passed for winding up the Licensee unless such Order or
resolution is part of a scheme for amalgamation or reconstruction of the
Licensee; or


 


10.1.3.                                    if the Licensee assigns, sub-licences, mortgages, or
in any other way deals with the licence granted under this Agreement without
the prior written consent of the Licensor; or


 


10.1.4.                                    if a person, whether alone or in conjunction with any
Connected Person (as defined in section 839 of the Taxes Act 1998) acquires
control of the Licensee and the Chief Executive of Dstl receives notice from an
appropriate authority at the Ministry of Defence or other UK Government
Department that such an acquisition would damage the essential public or
national interest, where control of the Licensee means the power of a person to
secure either by means of the holding of share or possession of voting power in
or in relation to the Licensee or by virtue of any powers conferred by articles
of association or other document regulating the Licensee that 


 

















 


PRIVATE BETWEEN THE PARTIES


 


its affairs are conducted in accordance with the wishes of that person;
or


 


10.1.5.                                    in any other event expressly identified in this
Agreement as giving the Licensor a right to terminate.


 


10.2.                      The Licensee shall have the right to terminate this
Agreement at any time on giving three (3) months prior written notice to
the Licensor.


 


10.3.                      In the event that Licensee fails to diligently pursue
development of a Licensed Product, Licensor shall have the right to notify
Licensee in writing of such failure and the specifics thereof and that Licensor
intends to terminate the exclusivity of Article 2.2 of this
Agreement.  Such exclusivity shall
terminate thirty (30) days after receipt of such written notice unless prior to
the expiration of such thirty (30) days period, Licensee notifies Licensor in
writing that such issue is being submitted for resolution pursuant to Article 16.1
of this Agreement, in which case, such exclusivity period shall terminate only
in the case that it is finally determined in an arbitration pursuant to Article 16.1
that Licensee has failed to diligently pursue development of a Licensed
Product.


 


11.       CONSEQUENCES OF TERMINATION


 


11.1.                      Upon the termination of this Agreement under the
provisions of Article 10 above, all rights and licences granted in favour
of the Licensee hereunder shall cease, except and to the extent expressly
provided otherwise under the terms of this Agreement.


 


11.2.                      Immediately upon the termination of this Agreement
all licence payments accrued to date under Article 3.1 above shall become
payable and all other obligations shall become due. In the event of termination
of this Agreement under the provisions of Article 10 the Licensee shall
have the right from the date of termination to dispose of all stocks of
Licensed Products its possession and to fulfill any outstanding orders for the
Licensed Products, subject in each case to the payment of royalties as payable
under Article 3.1 hereof.


 


11.3.                      The expiry or termination of this Agreement shall be
without prejudice to the provisions of Article 5 (Warranty and Liability)
and this Article 11 (Consequences of Termination), to any other express
obligations in his Agreement of a continuing nature, and to any rights of
either Party which ay have accrued up to the date of termination.


 

















 


PRIVATE BETWEEN THE PARTIES


 


12.         ASSIGNMENT BY THE LICENSOR


 


12.1                         Licensor
may assign this Agreement or any of the Intellectual Property to any Third
Party without the consent of the Licensee. 
Any such assignment made will preserve the rights of the Licensee set
out in this Agreement.


 


13.         VALIDITY OF THE AGREEMENT


 


13.1.                      In the event that any provisions of this Agreement
shall for any reason be declared or rendered invalid, illegal or unenforceable
in any respect, such provisions shall, to the extent of such invalidity,
illegality or unenforceability, be deemed severable and shall not affect the
validity, legality or enforceability of the remainder of this Agreement, which
shall continue in full force and effect, save that if the nature of the
invalidity, illegality or unenforceability is such that it destroys the
business efficacy of this Agreement, the Parties shall confer to determine
whether the Agreement shall be terminated or whether such severed provisions
shall be replaced with enforceable provisions to the satisfaction of both of
the Parties.


 


14.       MISCELLANEOUS PROVISIONS


 


14.1.                      Each Party shall at any time on the request of the
other do and execute all such acts, deeds, documents and things as may
reasonably be required by the other to perfect and complete the grant of rights
and licences conferred by this Agreement on the other, or to record any change
in the status of such rights, including, in particular, entry into forms of
licence or other instruments confirmatory of such rights for registration with
appropriate authorities in any country.


 


14.2.                      No relaxation, forbearance, delay or indulgence by
either party  in enforcing any of
the terms and conditions of this Agreement or the granting of time by either
Party to the other shall prejudice, affect or restrict the rights and powers of
that Party under this Agreement nor shall any waiver by either Party of any
breach of this Agreement operate as a waiver of or in relation to any
subsequent or any continuing breach of this Agreement.


 


14.3.                      No variation of this Agreement shall be effective
unless it is in writing signed by a duly authorised officer of each Party.


 


14.4.                      Nothing in this Agreement shall be deemed to
constitute a partnership between the Parties nor shall either Party be taken to
have any authority to bind or commit the other or be taken to have authority to
act as the agent of the other or in any other capacity other than as expressly
authorised in this Agreement.


 

















 


PRIVATE BETWEEN THE PARTIES


 


14.5.                      Any notice or communication authorised or required to
be given hereunder or for the purpose hereof shall be deemed to be duly given
if left or sent by post or if sent by cable, facsimile or telex so addressed if
confirmed by post in like manner to:- the Licensor at:


 


[***]


[***]


[***]


[***]


[***]


[***]


 


[***]


[***]


 


the Licensee
at:


 


PharmAthene UK LTD.


Attn:  The President


Johnson Mathey Building


PO Box 88


Haverton Hill Road


Billingham, Cleveland TS23 1XN


 


and a copy
to:


 


PharmAthene, Inc.


Attn:  [***]


One Park Place, Suite 450


Annapolis, MD 21401


 


Any notice so
given by post shall be deemed to be served at the expiration of seven (7) days
after it has been posted and in proving such service it shaII be sufficient to
prove that the envelope containing the notice was properly addressed and
posted.


 


14.6.                       A person who is not a party to this Agreement shall
have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce
any term of this Agreement. This Article does not affect any right or
remedy of any person which exists or is available otherwise than pursuant to
that Act.


 

















 


PRIVATE BETWEEN THE PARTIES


 


15.       LAW AND JURISDICTION


 


15.1.                      This Agreement shall be considered as a contract made
in England subject to English Law.


 


15.2.                      Subject to Article 15 and without prejudice to
the dispute resolution process set out in that Article, each Party hereby
irrevocably submits and agrees to the exclusive jurisdiction of the Courts of
England to resolve, and the laws of England to govern, any actions,
proceedings, controversy or claim of whatever nature arising out of or relating
to this Agreement or breach thereof.


 


15.3.                      Other jurisdictions may apply solely for the purpose
of giving effect to this Article and for the enforcement of any judgment,
order or award given under English jurisdiction.


 


16.       DISPUTE RESOLUTION


 


16.1.                      Without prejudice to the operation of the dispute
resolution or arbitration provisions, if any, governing disputes, differences
or questions arising out of the Development Contracts and where necessary the examination
of this Agreement pursuant to such dispute resolution or arbitration
provisions:


 


16.1.1.                                    the parties will attempt in good faith to resolve any
dispute or claim arising out of or relating to this Agreement through
negotiations between the respective representatives of the parties having
authority to settle the matter, which attempts may include the use of any
Alternative Dispute Resolution (ADR) procedure on which the parties may agree;


 


16.1.2.                                    in the event that the dispute or claim is not resolved
by negotiation, or where the parties have agreed to use an ADR procedure, by
the use of such procedure, the dispute shall be referred to arbitration;


 


16.1.3.                                    the party initiating the arbitration shall give a
written Notice of Arbitration to the other party, which Notice of Arbitration
shall specifically state:


 


that the dispute is referred to arbitration; and


 


the particulars of this Agreement out of or in relation to which the
dispute arises;


 


16.1.4.                                    unless otherwise agreed in writing by the  parties, the arbitration and this Article 14
shall be governed by the provisions of the Arbitration Act 1996 or any
statutory modification or re-enactment thereof;


 

















 


PRIVATE BETWEEN THE PARTIES


 


16.1.5.                                    it is agreed between the Parties that for the
purposes of the arbitration, the arbitrator shall have the power to make
provisional awards as provided for in Section 39 of the Arbitration Act
1996; and


 


16.1.6.                                    for the avoidance of doubt it is agreed between the
Parties that the arbitration process and anything said, done or produced in or
in relation to the arbitration process (including any awards) shall be
confidential as between the Parties, except as may be lawfully required in
judicial proceedings relating to the arbitration or otherwise; and no report
relating to anything said, done or produced in or in relation to the
arbitration process may be made beyond the tribunal, the Parties, their legal
representatives and any person necessary to the conduct of the proceedings,
without the concurrence of all the Parties to the arbitration.


 


17.       COMPLETE AGREEMENT


 


This
Agreement consisting of seventeen (17) Articles represents the entire agreement
between the Parties on the subject of the use by the Licensee of the Patents
and other Intellectual Property for the purposes set out herein and supersedes
all prior proposals, oral or written, between the Parties on this subject.


 

















 


PRIVATE BETWEEN THE PARTIES


 


IN WITNESS WHEREOF the Parties entered into this Agreement in two (2) counterparts,
each of which is equally valid, the day and year first above written.


 


SIGNED on
behalf of THE SECRETARY OF STATE FOR DEFENCE by:


 


[***]


[***]


[***]


[***]


 


in the
presence of


 


(witness)


 


SIGNED for and
on behalf of PHARMATHENE UK LTD. by:


 


[***]


(President of PharmAthene
UK LTD.)


 


in the
presence of


 


(witness)


 

















 


PRIVATE BETWEEN THE PARTIES


 


The Schedule 1


 


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PRIVATE BETWEEN THE PARTIES


 


· [***]


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PRIVATE BETWEEN THE PARTIES


 


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*[***]


 


#360826 v2 - DSTL amended and
restated


(was 346763 v4)