**Exhibit 10.40**

 

*Portions of this exhibit marked [*] arerequested to be treated confidentially.

** **

**DCVAX®-L MANUFACTURING AND SERVICESAGREEMENT**

** **

This Amended and RestatedServices Agreement (this “Agreement”), originally dated April 1, 2011 is entered into, effective as of January 17,2014 (the “***Effective Date***”), by and between Cognate BioServices, a Delaware corporation (Cognate”),and Northwest Biotherapeutics, a Delaware corporation (“NW Bio”).

 

**RECITALS**

** **

WHEREAS, NW Bio is inthe business of developing immune cell therapies for cancer, and Cognate is in the business of manufacturing clinical grade cellularproducts on a contract services basis;

 

WHEREAS, NW Bio and Cognatepreviously entered into a Services Agreement for the production of NW Bio’s DCVax® Products by Cognate (the “PriorServices Agreement”) and a Conversion and Lock-Up Agreement (the “Lock-Up Agreement”);

 

WHEREAS, Cognate hasdedicated cGMP facilities and other facilities to NW Bio programs, and conducted all of NW Bio’s physical operations includingall collections of patient tumor tissues and leukapheresis materials from clinical sites, all manufacturing, quality control,cryopreservation and banking of all DCVax® products, and all distribution and logistics to the point of care throughout theUS, [*].

 

WHEREAS, both the quantityand the scope of services NW Bio has requested Cognate to provide greatly exceed the maximum amounts contemplated or providedfor in the Prior Services Agreement, and the parties have jointly determined that the Prior Services Agreement needs to be amendedaccordingly, and certain services beyond the core manufacturing services need to be covered in separate agreements;

 

WHEREAS, Cognate hasdelivered, and will continue to deliver during the Term of this Agreement, its invoices to NW Bio on a current monthly basis forthe services and facilities for NW Bio’s programs (collectively, the “***Manufacturing Bills***”);

 

[*]

 

WHEREAS, the partiesdesire to provide incentivized compensation in consideration of entering into series of amended and new Services Agreements tocover the increased amount of contract manufacturing and the wider range and increased amounts of related services by Cognatefor the manufacture, distribution and handling of DCVax®-L Products for clinical trials and for subsequent commercialization;and

 

[*] Confidential treatment required; certain information omitted and filed separately with the SEC.

 

  

WHEREAS, the partiesalso desire to update and reformulate their existing Services Agreement into a more comprehensive and complete set of four agreementsconsisting of (i) this DCVax-L Manufacturing and Services Agreement, (ii) a new DCVax-Direct Manufacturing and Services Agreement,(iii) a new Ancilliary Services Agreement, and (iv) a new Manufacturing Expansion Services Agreement;

 

WHEREAS, the partiesalso desire to update their existing Quality Agreement associated with the manufacture of DCVax®-L and ensure that the newor amended Services Agreements meet the requirements set forth in such Quality Agreement.

 

**AGREEMENT**

 

**Now,Therefore**, in consideration of the foregoing recitals and the mutual promises, representations, warranties, and covenantshereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,the parties hereby agree as follows:

** **

**SECTION 1:    SERVICES**

 

Cognate will provideto NW Bio, on the terms and conditions set forth herein, Manufacturing Services as provided in Section 1.1. The ManufacturingServices may be referred to herein as the “Services.” Under separate agreements, Cognate will also provide AncillaryServices and Manufacturing Expansion Services as provided in Section 1.2.

** **

**1.1    ManufacturingServices**

 

1.1.1    Scopeof Manufacturing Services.

 

(A.) In the U.S.,Cognate will provide Manufacturing Services for the production of DCVax®-L products for various cancers, including brain cancer(the “DCVax®-L Product(s)”). Such Manufacturing Services, together with related Ancillary Services, will comprisethe services necessary for the production and release of the DCVax®-L Products for administration to human patients [*]. TheManufacturing Services do not include any services after product release at Cognate’s cGMP manufacturing facility and deliveryby Cognate to the shipping company.

 

(B.) Outside the U.S.,under the Prior Services Agreement Cognate has been providing extensive and ongoing technology transfer, technical support andgeneral management and oversight of third party providers and manufacturers, and the services required by NW Bio have been growingand expanding substantially. Following the Effective Date of this Agreement, such services relating to third parties will be providedunder the separate agreements for Ancillary Services. [*]

 

[*] Confidential treatment required; certain information omitted and filed separately with the SEC.

 

  

1.1.2    ManufacturingServices Capacity.    Cognate will commit to providing the necessary facilities and personnel for productionof DCVax®-L Products for such number of Product Lots as is equal to the Maximum Product Lots for which NW Bio pays FacilitiesCapacity Payments and Product and Supplies Fees pursuant to Section 2 hereof. If NW Bio requests production of DCVax®-L Productsin excess of the Maximum Product Lots, Cognate will use commercially reasonable efforts to accomplish such excess production asrequested, provided that NW Bio pays for such services in accordance with Section 2 hereof.

 

1.1.3    RegulatoryStandards. The Manufacturing Services will be carried out in accordance with current Good Manufacturing Practices (“cGMP”)requirements established by the U.S. Food and Drug Administration (“FDA”), or the equivalent requirements establishedby the applicable regulators outside the U.S.

 

**1.2    AdditionalAgreements**

 

Certain additional servicesrelating to the DCVax-L program will be provided at NW Bio’s request under separate agreements. These include an AncillaryServices Agreement and a Manufacturing Expansion Services Agreement. The Ancillary Services will include shipping distributionand logistics services; cryopreservation and storage services; clinical support services; development and validation services;recordkeeping services, and others. The Manufacturing Expansion Services will include oversight, management and support of thirdparty manufacturing outside the U.S., [*].

** **

**1.3    QualityAgreement**

 

Under the prior ServicesAgreement, the parties had entered into a Quality Agreement establishing the quality standards to be met in DCVax®-L Products,the requirements for product release, the respective roles and responsibilities of NWBO and Cognate in these processes, the standardsand procedures for the handling of any deviations from the usual quality standards or product release requirements, and/or anycomplaints, the processes and allocation of responsibilities for reporting of these matters, and related subjects. Within onehundred eighty (180) days after the Effective Date of this Agreement, the parties will update the existing Quality Agreement consistentwith the terms of this Agreement. Such updated Quality Agreement will be attached hereto as ***Exhibit A*** and incorporatedherein by reference.

** **

**SECTION 2:    PAYMENTS**

 

**2.1    Paymentsfor Manufacturing Services in the U.S.**

 

**2.1.1    FacilitiesCapacity Payments.**

For regular ongoingcosts associated with facilities and equipment to be used in NW Bio programs, NW Bio will pay a monthly Facilities Capacity Payment.Such monthly payment does not include start-up costs, shut down costs, capital expenditures or other non-recurring costs (whichare expected to be covered in the separate Manufacturing Expansion Services Agreement). The amount of the monthly Facilities CapacityPayment will be determined in relation to the capacity to provide for a specified number of Product Lots as follows, and willescalate with a consumer price index jointly selected by the parties:

 

[*] Confidential treatment required; certain information omitted and filed separately with the SEC.

 

  

[*]

 

**2.1.2 FixedFees for Manufacturing Services and Supplies; Minimum Commitments.**

 

(A.) For each ProductLot in the U.S. for which DCVax®-L Product is to be made, Cognate will undertake the Manufacturing Services as provided inSection 1. NW Bio will pay Cognate a fixed fee per Product Lot for the product costs as part of the Manufacturing Services relatingto that Product Lot (the “Product Fee”). The Product Fee will initially be as follows, and will escalate with a consumerprice index jointly selected by the parties.

 

[*]

 

(B.) In addition,NW Bio will pay a fixed fee per Product Lot for materials and consumables (including reagents and other) used in the ManufacturingServices for that Product Lot (the “Supplies Fee”). The amount of such Supplies Fee will be as follows, and will escalatewith the consumer price index jointly selected by the parties.

 

[*]

 

(C.) The ManufacturingServices do not include any repetition of some or all of the manufacturing processes [*] except as expressly provided for andpaid for, nor any additional processing beyond the standard processing, [*].

 

(D.) Cognate willhire, train and maintain sufficient technical staff for the manufacture of such volume of DCVax®-L products as specified inthe Minimum Commitment below (or such higher volume as NW Bio may request and may be jointly agreed), and for ongoing regulatorycompliance for such volume of DCVax®-L products.

 

(E.) Notwithstandinganything to the contrary, NW Bio hereby commits to a minimum volume of DCVax®-L Products (the “Minimum Commitment”)equal to [*].

 

(F.) [*]

 

**2.1.3 Start-up,Change, Reduction and/or Shut-down Costs, Capital Expenditures:**

For each program and/orfacility that NW Bio desires to start up, expand, upgrade, change, reduce or shut down, Cognate will prepare budgets for the capitalexpenditures required. NW Bio will review and approve the applicable budgets for the capital expenditures involved in each suchprogram or site start-up, expansion, upgrade, change, reduction or shut-down. NW Bio will pay the budgeted capital expenditures[*].

 

[*] Confidential treatment required; certain information omitted and filed separately with the SEC.

 

 

During the Term ofthis Agreement, if NWBO for any reason shuts down, suspends or incurs substantial delay in the DCVax®-L program in whole orin part, the following shutdown, suspension or delay fees shall apply to cover costs associated with such a shutdown or suspension.[*].

 

[*].

** **

**2.1.4 ExpansionPlanning and Implementation Costs:**

** **

Until the ManufacturingExpansion Services Agreement is executed between the parties, for each program and/or facility that NW Bio desires to expand,upgrade or change, Cognate will prepare budgets for the costs involved and the capital expenditures required. NW Bio will reviewand approve the applicable budgets for the costs and the capital expenditures involved in each such expansion. NW Bio will paythe budgeted costs and capital expenditures.

** **

**2.2 Payment forManufacturing, and/or Supervisory Services Outside the U.S.**

** **

[*] Such services willbe covered under a separate Agreement as needed, but in the absence of such a separate Agreement, the parties agree that suchServices will be paid on market terms proportional in the applicable country market to the terms under to this Agreement, adjustedfor the higher costs of such manufacturing services being performed [*].

 

**2.3    Reimbursementof Travel Costs**

 

In addition to the paymentsfor various services and expenses provided in this Section 2, NW Bio will reimburse all travel-related costs incurred by Cognatein performing any services hereunder. Such reimbursements will include appropriate per diem travel cost payments, to be jointlyagreed by the parties in connection with each set of services, and reimbursement of all travel-related costs not covered by agreedper diem payments.

 

**2.4    [*]**

 

[*]

** **

**2.5    CreditTerms and Collection Costs**

 

If NW Bio does not makea payment or reimbursement when due, the outstanding unpaid amounts will accrue interest at a default interest rate of one andone-half percent (1-1/2%) per month. If any collection action is undertaken to collect unpaid amounts, NW Bio will pay all feesand costs associated with such collection actions including, without limitation, reasonable attorneys’ fees, as incurred.

 

[*] Confidential treatment required; certain information omitted and filed separately with the SEC.

 

  

**2.6    YearlyAdjustment**

 

All payment amountsreferenced in this Agreement shall be subject to a yearly increase of three percent (3%). The first increase shall be effectiveon the first invoice after the 12 month anniversary of this Agreement.

 

**2.7    Milestoneand Initiation Payments**

        

Thedisinterested members of the Board of Directors of NW Bio agree that the magnitude of the undertakings now being asked ofCognate, particularly in view of the extraordinary performance by Cognate to date, and the scale and scope of servicesneeded, which far exceeds the parties’ expectations when the Prior Agreement was entered into, requires a substantialinitiation payment in connection with the major expansion of the DCVax-L program needed by NW Bio (the“Initiation Payment”). The disinterested Members of the Board agree that the excess services and acceleratedtimelines are of great value to NW Bio. Previously, NW Bio has left approximately half of Cognate’s invoices unpaid formore than a year. NW Bio desires to recognize and compensate Cognate for its superior performance, and to rectify the paymentsituation at Cognate going forward. NW Bio will make an Initiation Payment in connection with the substantial expansion ofthe DCVax program pursuant to this Agreement: 1,020,273 shares of NW Bio common stock, and a warrant exercisable for 486,802shares of NW Bio common stock at $4.00 per share, with an exercise period of five (5) years from issuance, cashless exerciseprovisions and most favored nation provisions for anti-dilution protection. [*] NW Bio will also make milestone payments toCognate upon the achievement of mutually agreed operational milestones, such as [*]. The securities issued to Cognate hereunder will be subject to a lock-up for up to thirty (30) months fromissuance, or such longer period as the parties may mutually agree. NW Bio will compensate Cognate for such-lock up on market basedterms, and such terms will be subject to most favored nation provisions with respect to any securities issuances, agreements orexercises involving any other investor or creditor. Under the lock-up, Cognate will be prohibited from selling or trading the coveredsecurities in the market.

** **

**2.8    OtherPayment Terms**

 

**2.8.1 Paymentof Manufacturing Bills Pursuant to Work Performed Under the Terms of this Agreement:** Payment of Manufacturing Bills willbe due within fifteen (15) after the invoice date. In the event that NW Bio fails to pay any Manufacturing Bills within fifteen(15) days after the invoice date, then commencing thirty (30) days after the invoice date and continuing until paid in full bycash and/or stock, the overdue amount will bear default interest at the rate of one and one-half percent (1-1/2%) per month. Atleast half of all Manufacturing Bills during the first eighteen (18) months following the Effective Date of this Agreement (the“Conversion Period”) will be paid in shares of NW Bio common stock, with the remaining portions of such ManufacturingBills paid in cash. [*]. The conversion price for any conversions after the Conversion Period will be jointly determined by theparties, based upon market factors. With respect to any shares of NW Bio stock to be issued hereunder, Cognate may elect to receiveunregistered shares immediately (with registration rights as provided herein) or to receive registered shares on the earliestdate that any registered shares are issued to any other investors after the date of the Manufacturing Bill being converted [*].

 

**2.8.2 Most FavoredNation Conversion Terms:** Notwithstanding anything to the contrary herein, or in any other document or source, any amountsowed that are paid by NW Bio in shares, warrants and/or other securities of any kind (such as restricted stock units, convertibledebt securities or other) issued or issuable in connection with this Agreement (including any subsequent amendments hereof) ,will be subject to adjustment on a most favored nation basis relative to the terms provided or applied to any other investor orcreditor of NW Bio during the Term of this Agreement or the Lock-Up Agreement, so that the terms of all shares, warrants and othersecurities issued or issuable under this Agreement will have terms no less favorable to Cognate than the terms of any shares,warrants and/or other securities issued or issuable to any other investor or creditor during the Term of this Agreement or theLock-Up Agreement. For the avoidance of doubt, the application of most favored nation treatment will include not only the priceand terms of securities issued but also the addition of, and terms relating to, additional securities, and additional rights and/orbenefits to the investor or creditor (including warrants, rights of first refusal, pre-emptive rights, and/or other securities,rights or benefits). Such most favored nation adjustments may be implemented at any time or times after being times after beingtriggered by terms provided to other investors or creditors, and may be triggered on multiple occasions with respect to a particularsecurity issued hereunder.

 

[*] Confidential treatment required; certain information omitted and filed separately with the SEC.

 

  

**SECTION 3:    CONFIDENTIALITY**

 

In connection with thisAgreement, the parties will maintain a mutual Confidentiality Agreement.

** **

**SECTION 4:    REPRESENTATIONSAND WARRANTIES**

 

**4.1    AgreementDuly Authorized; Valid and Binding Obligations**

** **

Cognate and NW Bio eachhereby represents and warrants, severally and not jointly, that:

 

4.2.1    Suchparty is a corporation or entity duly organized, validly existing and in good standing under the laws of the jurisdiction wheresuch party is domiciled, and has all necessary power and authority to (i) own, operate and occupy its properties and to carryon its business as presently conducted and (ii) enter into this Agreement and the other agreements, instruments and documentscontemplated hereby, and to consummate the transactions contemplated hereby and thereby. Such party is qualified to do businessand is in good standing in each jurisdiction in which the failure to so qualify would have a material adverse effect.

 

4.2    Allnecessary corporate or other proceedings, votes, resolutions, consents, waivers and approvals relating to the sale and purchaseof shares have been completed by the applicable party. Upon execution, this Agreement will constitute a valid and legally bindingobligation of the party, enforceable in accordance with its terms except (i) as limited by applicable bankruptcy, insolvency,reorganization, moratorium, and other laws of general application affecting enforcement of creditors’ rights generally,and (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies.

  

**4.2    ValidIssuances; No Violation**

 

NW Bio hereby representsand warrants that:

 

 

Upon issuance hereunder,each conversion share will be validly issued, fully paid and non-assessable. The execution, delivery, performance, issuance, saleand delivery of this Agreement and compliance with the provisions hereof by NW Bio will not (a) violate any provision of NW Bio’scertificate of incorporation or bylaws or, to the knowledge of the NW Bio, any law, statute, rule or regulation applicable toor NW Bio any order, judgment or decree of any court, arbitrator, administrative agency or other governmental body applicableto NW Bio or any of its assets or (b) conflict with or result in material breach of any of the terms or conditions of any agreementor instrument to which NW Bio is a party, or given rise to any right of termination, cancellation or acceleration under any suchagreement or instrument, or result in the creation of any lien or other encumbrance upon any of the material assets of NW Bio.

 

**4.3    NoWarranties of Merchantability or Fitness**

 

EXCEPT AS EXPRESSLY SETFORTH IN THIS AGREEMENT, COGNATE MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITEDTO, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY, WITH RESPECT TO ANY DCVAX®-L PRODUCTS OR ANY SERVICESRENDERED HEREUNDER, OR ANY TECHNOLOGY THAT MAY BE USED IN SUCH SERVICES OR INCORPORATED INTO SUCH DCVAX®-L PRODUCTS.

** **

**SECTION 5:    INSURANCE,INDEMNIFICATION, LIABILITY**

 

**5.1    NWBio Insurance Obligations**

 

NW Bio is required to obtainand to maintain throughout the term of this Agreement, in such amounts as are reasonably acceptable to Cognate, (a) clinical trialinsurance covering all clinical trials of DCVax®-L Products, (b) all-risks umbrella insurance, (c) product liability insurancecovering the distribution, use and administration of DCVax®-L Products to patients, and (d) such other insurance as is reasonableor customary in the industry. Cognate shall be a named insured and beneficiary on all such insurance coverages.

 

**5.2    CognateInsurance Obligations**

 

Cognate is required toobtain and to maintain throughout the term of this Agreement, in such amounts as are reasonably acceptable to NW Bio, (a) productliability insurance covering the manufacture of DCVax®-L Products by Cognate, and (b) such other insurance as is reasonableor customary in the industry. NW Bio shall be a named insured and beneficiary on all such insurance coverages.

 

  

**5.3    Indemnification**

 

In addition to all rightsand remedies available to Cognate at law or in equity, NW Bio will indemnify and hold harmless Cognate and its successors, assigns,affiliates and their respective present and former directors, officers, partners, employees, agents, representatives, shareholders,successors and assigns (each an "Indemnified Party") to the fullest extent permitted by law from and against all costs,expenses, losses, claims, damages, liabilities, [*] (a) arising from or relating to this Agreement and/or any transactions orservices contemplated hereunder, (b) arising from or relating to any changes from the original agreement of the parties as describedherein, or arising from or relating to a delayed agreement, or arising from or relating to delayed payment, delayed conversionsand/or delayed issuances hereunder beyond the applicable Manufacturing Bill dates or other applicable reference dates, and (c)arising from or relating to any use or administration to patients of DCVax®-L Products manufactured by Cognate, provided thatCognate has manufactured such DCVax® Products substantially in accordance with the applicable specifications or SOPs for suchDCVax®-L Products and/or with commercially reasonable deviation from such SOPs. NW Bio will pay all fees and expenses (includingreasonable attorneys’ fees), as incurred, which are incurred by or on behalf of an Indemnified Party, or to which an IndemnifiedParty may become subject, in connection with any matters covered by this indemnification and/or in connection with investigating,preparing, pursuing, defending and resolving any threatened or pending claim, action, proceeding or investigation (collectively,“Proceedings") arising therefrom, whether or not such Indemnified Party is a formal party to such Proceedings.

 

**5.4    NoConsequential Damages**

 

Notwithstanding anythingto the contrary, in no event shall either party shall be liable hereunder, on any basis, for any indirect or consequential damages.

 

**SECTION 6:    TERMAND TERMINATION**

** **

**6.1    Term**

 

This Agreementwill remain in force  until the later of seven (7) years from the Effective Date (the “Term”) or five (5)years after the first commercial sales of DCVax®-L Productspursuant to a Biologics License Application or marketing authorization (not a compassionate use, hospital exemption orsimilar authorization), unless terminated earlier pursuant to Section 6.2.

 

**6.2    Termination**

 

Either party may terminatethis Agreement in the event of a material breach by the other party which remains uncured after notice of such breach for a periodof thirty (30) days in the case of a monetary breach, or a period of one hundred twenty (120) days in the case of a non-monetarybreach that is material to the contract taken as a whole.

  

[*] Confidential treatment required; certain information omitted and filed separately with the SEC.

 

  

**SECTION 7:    REGISTRATION**

 

**7.1.    UnregisteredShares.**

 

For any conversion shares issued hereunderwhich are unregistered under the Securities Act of 1933, as amended (the “**Securities Act**”) at the time of issuance,the certificates evidencing such unregistered conversion shares may, if necessary, bear the following legend (or a substantiallysimilar legend) and such other legends as may be required by applicable laws:

 

“THESESECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”). THEY MAY NOT BE SOLD,OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO SUCH SECURITIES UNDER THEACT OR UNLESS SUCH TRANSACTION IS IN COMPLIANCE WITH APPLICABLE FEDERAL AND STATE SECURITIES LAWS.”

** **

**7.2    Registration.**

 

Cognate will be entitled to “piggyback”registration rights, with respect to all unregistered conversion shares issued hereunder and all other shares and securities ofNW Bio owned by Cognate and its affiliates, in any registrations effected by NW Bio until all such shares and securities havebeen registered. NW Bio will use commercially reasonable efforts to complete registration of such unregistered conversion sharesby the earlier of six (6) months after the Effective Date of this Agreement or six (6) months after issuance during the Term ofthis Agreement.

 

**7.3    RegistrationCosts.**

 

NW Bio will bear all costs and expenses (includingattorneys’ fees) relating to the preparation and filing of all registrations which NW Bio is required to undertake pursuantto this Agreement. 

** **

**SECTION 8:    MISCELLANEOUS**

** **

**8.1    GoverningLaw**

 

This Agreement will begoverned by and construed in accordance with the laws of the State of Delaware, without regard to principles of conflicts of law.

** **

**  **

**8.2    EntireAgreement**

 

This Agreement (includingthe Exhibits hereto), constitutes the entire agreement of the parties with respect to the subject matter hereof, and supersedesall prior agreements, understandings, promises or undertakings with respect to the subject matter hereof, including the priorServices Agreement, provided however, that the provision in the Prior Services Agreement (and the agreement prior to that) fora penalty payment of $2 million from NW Bio to Cognate, to which Cognate was entitled in connection with failure by NW Bio tocomplete enrollment in NW Bio’s Glioblastoma multiforme clinical trial by a specified date, survives and remains applicable,and has not been and is not waived, and provided further that this Agreement is part of a package of agreements which also a DCVax®-DirectServices Agreement and multiple Ancillary Services agreements (including a Distribution, Software and Specialty Services Agreement,a Manufacturing Expansion and Support Agreement and related agreements).

 

**8.3    Amendments**

 

Except as otherwise expresslyprovided herein, this Agreement may not be amended except by a written instrument signed by both parties hereto.

** **

**8.4    Adjustmentsfor Stock Splits and Similar Transactions**

 

In the event of a stocksplit, reverse split or other similar transaction during the Term of this Agreement, the prices and other numbers herein willbe adjusted accordingly.

** **

**8.5    Survival**

 

The provisions of Sections2 - 5 herein will survive the expiration or termination of this Agreement until expiration of the applicable statute of limitations.

** **

**8.6    Notices**

 

Any notices, consents,waivers or other communications required or permitted to be given under the terms of this Agreement must be in writing and willbe deemed to be effective upon delivery when delivered (a) personally; (b) by facsimile or email, provided a copy is mailed nolater than the next business day through a nationally recognized overnight delivery service; or (c) by overnight delivery througha nationally recognized overnight delivery service, in each case properly addressed to the receiving party at such address orfacsimile number as the receiving party has furnished to the sending party in writing.

 

**8.7    Severability**

 

If one or more provisionsof this Agreement are held to be unenforceable under applicable law, then such provision shall be excluded from this Agreement,the balance of the Agreement shall be enforceable in accordance with its terms, and the parties shall negotiate in good faithto amend or add to the provisions of this Agreement to effectuate as nearly as reasonably practicable, and as nearly as permittedunder applicable law, the original intent of the parties with respect to the provision excluded.

 

  

**8.8    Successorsand Assigns**

 

Except as otherwise expresslyprovided herein, the provisions hereof will be binding upon, and inure to the benefit of the respective successors, assigns, heirs,executors and administrators of the parties hereto. Neither party hereto may transfer all or any portion of its rights under thisAgreement to a third party other than an affiliate without the prior written consent of the other party hereto.

 

**8.9    Interpretations**

  

All pronouns and any variationsthereof will be deemed to refer to the masculine, feminine, neuter, singular or plural, as the identity of the person or personsor entity or entities may require. All references to “$” or dollars herein will be construed to refer to United Statesdollars. The titles of the Sections and subsections of this Agreement are for convenience or reference only and are not to beconsidered in construing this Agreement. All references to “including” shall be deemed to mean “including, withoutlimitation.”

 

**8.10    Counterparts**

 

This Agreement may be executedin counterparts, each of which when so executed and delivered will constitute a complete and original instrument but all of whichtogether will constitute one and the same agreement, and it will not be necessary when making proof of this Agreement or any counterpartthereof to account for any counterpart other than the counterpart of the party against whom enforcement is sought.

 

  

[signatures on the followingpage]

 

 

IN WITNESS WHEREOF, theparties have executed this Services Agreement effective as of the date first set forth above.