Exhibit 10.36.1


 


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


 


MANUFACTURING AND
MARKETING LICENSE 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 11th day of February, 2009


 


BETWEEN


 


THE SECRETARY OF STATE FOR DEFENCE
acting through the Defence Science and Technology
Laboratory [***] (hereinafter referred to as 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.                       The Licensor
and Avecia Limited entered into a Manufacturing and Marketing License Agreement
as of December 4, 2006, (the “License Agreement”);


 


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


 


E.                          The Licensor
and the 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.


 


1.1.2.                                           “[***] Vaccine” shall mean
[***] which is produced using recombinant technology.


 


1.1.3.                                           “[***] Vaccine Dose” shall mean
the quantity of a formulation containing [***] Vaccine given to an individual
in a single immunisation.


 


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


 


1.1.5.                                           “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, 


 

















 


PRIVATE BETWEEN THE PARTIES


 


manufacture,
have manufactured, import use, keep, sell and offer to sell the [***] Vaccine
and the [***] Vaccine Dose.


 


1.1.6.                                           “Licensed Product” shall mean
[***] Vaccine Dose the manufacture, use, sale, keeping, importing or exporting
of which would, in the absence of the licence 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.


 


1.1.7.                                           “Net Sales Price” shall mean
the actual sale price for 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.


 


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


 


1.1.9.                                           “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 an [***] Vaccine
or component thereof.


 


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


 


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


 


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.


 

















 


PRIVATE BETWEEN THE PARTIES


 


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 (i) to
develop, make, or have made, use, keep, sell, offer to sell, import and export
Licensed Products, and (ii) to develop, make, have made, and use [***]
Vaccine for the purpose of Licensor exercising the rights and licenses granted
to Licensor with respect to Licensed Product.


 


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


 


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.                            Save as permitted under Article 2.5 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 2.4,
without the prior written consent of the Licensor shall immediately invalidate
this Agreement and the license granted hereunder.


 


2.5.                            Notwithstanding the provisions of Article 2.4 above, the Licensee
shall be entitled to employ Partners to assist the Licensee in exercising the
Licensee’s rights hereunder with respect to Licensed Products subject to the
provisions of Article 3 below.


 


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


 

















 


PRIVATE BETWEEN THE PARTIES


 


3.            LICENCE  PAYMENTS


 


3.1.                            In consideration for the grant of rights by the Licensor in Article 2.1
above; the Licensee shall pay to the Licensor a royalty on each and every
Licensed Product, equal to [***] of the Net Sales Price of the Licensed
Product. Notwithstanding the foregoing, no royalties shall be payable in
respect of any samples of Licensed Products which are provided by the Licensee
for clinical, product development, marketing development or bona fide study purposes. No royalties are
payable in respect of supplies of Licensed Products to the UK Ministry of
Defence.


 


3.2.                            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.


 


3.3.                            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.  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.


 


3.4.                            The payments due under Articles 3.1 and 3.3 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 3.6 and 3.7 below.


 


3.5.                            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. .


 


3.6.                            Within sixty (60) days of the end of each half-year period as mentioned in Article 3.4
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.


 


3.7.                            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 [***].


 


3.8.                            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.


 

















 


PRIVATE BETWEEN THE PARTIES


 


3.9.                            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 x[***].


 


3.10.                      Subject to the provisions of Article 3.11 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.


 


3.11.                      The books of account referred to in Article 3.10 above shall be kept
for a minimum of six years after any relevant transaction and thereafter in
accordance with applicable commercial law.


 


3.12.                      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.


 


3.13.                      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.


 


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


 

















 


PRIVATE BETWEEN THE PARTIES


 


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 the
following that comes to the notice of the Licensee during the term of this
Agreement:


 


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; and


 


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


 


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 Article 4.3.1 above, or to defend any
proceedings in the circumstances referred to in Article 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 there
from 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 


 

















 


PRIVATE BETWEEN THE PARTIES


 


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) fifty percent of the difference between the amount recovered in
such action and the costs attributable to such action or (ii) the royalty
that the infringer would have owed in respect to infringing sales at the
royalty of Article 3.1 above.


 


5.            WARRANTY AND LIABILITY


 


5.1.                            Nothing contained in this Agreement or in any license 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.  Except either Party shall have the right to
disclose information and know-how of the other Party 


 

















 


PRIVATE BETWEEN THE PARTIES


 


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 [***]
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 license under any applicable Export of Goods (Control)
Order. Any necessary export license must 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.


 
















 


PRIVATE BETWEEN THE PARTIES


 


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-licenses, mortgages, or
in any other way deals with the license 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 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 licenses granted in favour
of the Licensee hereunder shall cease, except and to the extent expressly
provided otherwise under the terms of this Agreement.


 

















 


PRIVATE BETWEEN THE PARTIES


 


11.2.                     Immediately upon the termination of this Agreement
all license 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.


 


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 licenses 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
license 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.


 

















 


PRIVATE BETWEEN THE PARTIES


 


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.


 


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:


 


Manager,
Intellectual Property Group


Defence
Science and Technology Laboratory,


[***]


[***]


[***]


[***]


 


[***]


[***]


 


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 shall 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.


 


15.       LAW AND JURISDICTION


 


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


 

















 


PRIVATE BETWEEN THE PARTIES


 


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;


 


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.


 

















 


PRIVATE BETWEEN THE PARTIES


 


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 LIMITED by:


 


KEVIN PRICE


(President of PharmAthene UK LTD.)


 


in the
presence of


 


(witness)


 

















 


PRIVATE BETWEEN THE PARTIES


 


Schedule 1


 


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