exv10w17



 





January 22, 2004




CUMIRP Part II AGREEMENT




Center for University of Massachusetts-Industry Research on Polymers




An Agreement between




THE UNIVERSITY OF MASSACHUSETTS




and




POLYMEDIX 




Article 1. — Introduction and Intent of Agreement




     This agreement, made and entered in to as of the 22nd day of January, 2004, by and
between: the UNIVERSITY OF MASSACHUSETTS, a State university within the Commonwealth of
Massachusetts, established under Chapter 648 of the Acts of 1962, as amended, with offices at
Amherst, MA 01003-4530, United States of America (hereinafter called the University), through its
Center for University of Massachusetts — Industry Research on Polymers (hereinafter called CUMIRP),
and POLYMEDIX, P.O. Box 130, Bryn Mawr, PA 19010 (hereinafter called POLYMEDIX);



     WHEREAS, the signatories to this agreement intend to join together in a cooperative effort to
support fundamental research at the University and to explore technology of interest to POLYMEDIX,
and for POLYMEDIX to be able to enjoy the other benefits and opportunities of CUMIRP membership.



Article 2. — Definitions




     2.01 — The “Term” of this Agreement shall be six (6) months, commencing on the date
first written above or from January 1, 2004 through June 30, 2004, which ever is later for a total
time of six months. The term of the agreement may be terminated sooner according to the provisions
of Article 12 below or extended by mutual written agreement.



     2.02 — “Confidential Information” shall mean any confidential or proprietary
information furnished by one party (the “Disclosing Party”) to the other party (the “Receiving
Party”) in connection with the performance of the Research Project, provided that such information
is specifically designated as confidential. Such Confidential Information may include, without
limitation, trade secrets, know-how, inventions, technical data or specifications, testing methods,
and research and development activities.



     2.03 — “Field” shall mean “Synthesis and Screening of Compounds as Anti-microbial and
Anti-cancer Agents”, as seen in the Research Proposal for POLYMEDIX.



     2.04 — “Invention” shall mean any potentially patentable invention based on the
Research Results which is (i) conceived during the Term by employees of University or POLYMEDIX, or
both, and (ii) reduced to practice either during the Term or within a period of three (3) months
after the conclusion of the Term.



     2.05 — “Patent Rights” shall mean all United States and foreign patent applications
claiming an Invention, including any divisional, continuation, continuation-in-part (to the extent
that the claims are directed to an Invention), and foreign equivalents thereof, as well as any
patents issued thereon or reissues thereof. “University Patent Rights” shall mean Patent
Rights claiming Inventions that are conceived and reduced to practice solely by employees of
University, as determined under the patent laws of the United States, and assigned to University.
“Joint Patent Rights” shall mean Patent Rights



Page 1 of
11 Pages









 





January 22, 2004



claiming Inventions that are conceived or
reduced to practice jointly by employees of University and
employees or consultants of POLYMEDIX, as determined under the patent laws of the United States,
and assigned to University and POLYMEDIX.




     2.06 — “Materials” shall mean any tangible biological, chemical, or physical
materials.



     2.07 — “Principal Investigator” or “PI” shall mean an employee of University
who has primary responsibility for the performance of the Research Project.



     2.08 — “Project Materials” shall mean Materials that are discovered or developed in
the performance of the Research Project.



     2.09 — “Proprietary Materials” shall mean any proprietary Materials other than Project
Materials that are furnished by one party (the “Supplier”) to the other party (the “Recipient”) in
connection with the performance of the Research Project.



     2.10 — “Research Project” shall mean the research proposal described in Appendix
A (“Synthesis and Screening of Polymers as Anti-microbial and Anti-cancer Agents”).



     2.11 — “Research Results” shall mean all data, test results, laboratory notes,
techniques, know-how, and any other research results that are obtained in the performance of the
Research Project. The term “Research Results” shall not include any Project Materials, patentable
inventions, copyrighted or copyrightable works, trademarks or service marks, or other intellectual
property based on the Research Results.



     2.12 — “Industrial Technical Collaborator” or “ITC” shall mean an
individual designated by POLYMEDIX as its technical representative for consultation and
communications with University and the Principal Investigator.



     2.13 — “Affiliate” means any corporation or other legal entity in which POLYMEDIX owns
at least fifty (50%) percent or more of the voting capital shares or any other legal entity without
voting capital shares in which POLYMEDIX has at least a fifty (50%) percent interest in the profits
and losses.



     2.15 — “CUMIRP PART II” shall mean the Closed Research Cluster concept under CUMIRP
which is an exclusive agreement between the University and POLYMEDIX.



     2.16 — “Option Rights” shall mean the guarantee through this Agreement that POLYMEDIX
has the right of first negotiation (a first option) to obtain an exclusive license to the
University patents as described in Article 8 and Section 8.05, specifically.



Article 3. — Primary Research Responsibility, Research Project Performance, POLYMEDIX’s ITC,
Records, Materials and Reports




     3.01 — Primary research responsibility, authority and accountability for managing the
POLYMEDIX Research Cluster resides in the Principal Investigator (PI), Professor Gregory Tew. It
is expected that a PI will insure good communications, summary reports, well documented research
plans, and a sufficiency of timely Research Cluster meetings .



     3.02 — If Professor Tew ceases to serve as Principal Investigator for any reason,
University will promptly notify POLYMEDIX, and University and POLYMEDIX shall use good faith
efforts to identify a mutually acceptable replacement within sixty (60) days. If a suitable
replacement Principal Investigator cannot be identified within the sixty-day period, POLYMEDIX
shall have right to terminate this Agreement as provided in Article 12.





Page 2 of 11 Pages









 





January 22, 2004



     3.03 — The POLYMEDIX “Industrial Technical Collaborator” (ITC) shall be Richard Scott
of POLYMEDIX. POLYMEDIX may change its ITC upon thirty (30) days written notice to University.



     3.04 — Description of the Research Work — A description of the research work to be
performed is attached to this document in Appendix A described as POLYMEDIX Research Proposal.



     3.05 — Performance of Research Project. University shall use reasonable efforts to
complete the Research Project; however, University makes no warranties regarding the completion of
the Research Project or the achievement of any particular results. The ITC shall have reasonable
access to University facilities where the Research Project is being conducted, but the exact time
and manner of such access shall be determined by the Principal Investigator.



     3.06 — Records, Materials, and Reports. University and the Principal Investigator
will prepare and maintain records, including laboratory notebooks maintained in accordance with
standard scientific procedures, containing all Research Results. During the term of this
Agreement, and at the convenience of the Principal Investigator, the ITC shall have reasonable
access to such research records, and University and the Principal Investigator agrees to furnish
POLYMEDIX, upon request, with reasonable amounts of any Project Materials, subject to availability.
Within ninety (90) days after the expiration or termination of this Agreement, the Principal
Investigator shall deliver to POLYMEDIX a final report describing all significant Research Results
in reasonable detail.



Article 4. — Publication Rights




     4.01 — Publication Rights: Because the University is a public University of higher
education and engages only in research that is compatible with its academic role and mission, the
Sponsor’s name (POLYMEDIX), the nature of the research, and the results of University research must
be publishable. The University, therefore, reserves the right to publish in scientific journals,
theses, dissertations and CUMIRP presentations the methods and results of the research conducted
under this Agreement, subject only to the restrictions of proprietary information of POLYMEDIX as
seen in Article 6, below. POLYMEDIX, however, will receive an advanced copy of any such proposed
publication or presentation for review and comment at least thirty (30) days prior to submission
for publication or presentation. If either party concludes that the proposed publication or
presentation would constitute disclosure of POLYMEDIX Confidential Information or of a patentable
Invention made under this agreement, it shall immediately notify the other party in writing of that
conclusion. Submission for publication or presentation would then be delayed up to six (6) months
to permit the deletion of the POLYMEDIX Confidential Information and/or the filing of a patent
application by the University (see Article 8, below).



Article 5. — Research Costs and Payments POLYMEDIX/University




	 	 	 	 	 	 
	Item	 	 	Research Costs
	 	 	 
	Post-Doctoral Employee Salary
	 	 	 	1,700	 
	Health Insurance Post Doc. Employee
	 	 	 	202	 
	Workers Comp., Unemployment, etc (0.84%)
	 	 	 	14	 
	FICA (1.45%)
	 	 	 	25	 
	Faculty Additional Service Compensation
	 	 	 	2,000	 
	Faculty Fringe
	 	 	 	46	 
	Materials, Supplies, Services and Maintenance
	 	 	 	8,000	 
	Travel
	 	 	 	0	 
	 	 	 
	Sub Total Direct Costs
	 	 	 	11,987	 
	 	 	 
	University Indirect Costs (55% of Total Direct Cost)
	 	 	 	6,593	 
	 	 	 
	Total Costs
	 	 	 	18,580	 
	 	 	 





Page 3 of 11 Pages









 






January 22, 2004




     Payments on the total of $ 18,580. for the term (6 months) of the research shall be made in
one payment. The payment will be made in advance of the start of the research or within 30 days
of the signing of this Agreement.



Article 6. — Proprietary Information




     The free dissemination of information is an essential and long-standing policy of the
University. However, under exceptional circumstances, the University recognizes that it may
properly hold in confidence information supplied by POLYMEDIX in the course of the research
hereunder which the parties consider essential for the conduct of the research.



     6.01 — Designation. Confidential Information that is disclosed in writing shall be
marked confidential (such as “Confidential” or “Proprietary”). Confidential Information that is
disclosed orally or visually shall be documented in a written notice prepared by the Disclosing
Party and delivered to the Receiving Party within thirty (30) days of the date of disclosure; such
notice shall summarize the Confidential Information disclosed to the Receiving Party and reference
the time and place of disclosure.



     6.02 — The University retains the right to refuse to accept any such proprietary
information which it does not consider to be essential to the completion of the research hereunder
or which it believes to be improperly designated, or for any other reason.



     6.03 — Obligations. During the Term and thereafter for a period of five (5) years,
the Receiving Party shall (i), maintain all Confidential Information in strict confidence, except
that the Receiving Party may disclose or permit the disclosure of any Confidential Information to
its directors, officers, employees, consultants, and advisors who are obligated to maintain the
confidential nature of such Confidential Information and who need to know such Confidential
Information for the performance of the Research Project; (ii), use all Confidential Information
solely for the performance of the Research Project; and (iii), allow its directors, officers,
employees, consultants, and advisors to reproduce the Confidential Information only to the extent
necessary for the performance of the Research Project, with all such reproductions being considered
Confidential Information.



     6.04 — Exceptions. The obligations of the Receiving Party under Section 6.03, above,
shall not apply to the extent that the Receiving Party can demonstrate that certain Confidential
Information (i) was in the public domain prior to the time of its disclosure under this Agreement;
(ii) entered the public domain after the time of its disclosure under this Agreement through means
other than an unauthorized disclosure resulting from an act or omission by the Receiving Party;
(iii) was independently developed or discovered by the Receiving Party without use of the
Confidential Information; (iv) is or was disclosed to the Receiving Party at any time, whether
prior to or after the time of its disclosure under this Agreement, by a third party having no
fiduciary relationship with the Disclosing Party and having no obligation of confidentiality with
respect to such Confidential Information; or (v) is required to be disclosed to comply with
applicable laws or regulations, or with a court or administrative order, provided that the
Disclosing Party receives reasonable prior written notice of such disclosure.



     6.05 — Ownership and Return. The Receiving Party acknowledges that the Disclosing
Party (or any third party entrusting its own information to the Disclosing Party) claims ownership
of its Confidential Information in the possession of the Receiving Party. Upon the expiration or
termination of this Agreement, at the request of the Disclosing Party, the Receiving Party shall
return to the Disclosing Party all originals, copies, and summaries of documents, materials, and
other tangible manifestations of Confidential Information in the possession or control of the
Receiving Party, except that the Receiving Party may retain one copy of the Confidential
Information in the possession of its legal counsel solely for the purpose of monitoring its
obligations under this Agreement.



Article 7. — Proprietary Materials




Page 4 of 11 Pages









 








January 22, 2004




     7.01 — Limited Use and Transfer. The Recipient shall use Proprietary Materials only
for the performance of the Research Project. The Recipient shall use the Proprietary Materials
only in compliance with all applicable federal, state, and local laws and regulations. The
Recipient shall not use the Materials in any in vivo experiments on human subjects without
the prior written consent of the Supplier. The
Recipient shall not transfer any Proprietary Materials to any third party without the prior written
consent of the Supplier.



     7.02 — Warranty Disclaimer. Any Proprietary Materials that are furnished to a party
pursuant to this Agreement are understood to be experimental in nature and may have hazardous
properties. THE SUPPLIER MAKES NO REPRESENTATIONS, AND EXTENDS NO WARRANTIES OF ANY KIND, EITHER
EXPRESS OR IMPLIED, WITH RESPECT TO ANY PROPRIETARY MATERIALS. THERE ARE NO EXPRESSED OR IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THAT THE USE OF PROPRIETARY
MATERIALS WILL NOT INFRINGE ANY PATENT RIGHTS OR OTHER PROPRIETARY RIGHTS OF A THIRD PARTY.



     7.03 — Ownership and Return. The Recipient acknowledges that the Supplier (or any
third party entrusting its Materials to the Supplier) claims ownership of its Proprietary Materials
in the possession of the Recipient. The Recipient agrees to cause its employees to execute and
deliver any documents of assignment or conveyance to effectuate the ownership rights of the
Supplier in Proprietary Materials. Upon the expiration or termination of this Agreement, the
Recipient shall at the instruction of Supplier either destroy or return any unused Proprietary
Materials.



Article 8. — Rights to Inventions and Royalty Payments




     8.01 — Assignment of Rights in Inventions and Project Materials. The Principal
Investigator agrees to assign all rights in any Invention and all commercial rights in any Project
Material to University in accordance with the University Participation Agreement and this CUMIRP
Agreement. The Principal Investigator shall certify that every investigator who may be involved in
the Research Project shall have signed the University Participation Agreement. POLYMEDIX
represents and warrants that all of its employees and consultants who may be involved in the
Research Project shall have agreed to assign to POLYMEDIX all rights in Inventions and all
commercial rights in Project Materials.



     8.02 — Ownership of Patent Rights and Project Materials. In accordance with United
States patent law, University shall have sole ownership of all University Patent Rights and
University and POLYMEDIX shall have joint, undivided ownership of all Joint Patent Rights.
University shall have sole ownership of commercial rights in all Project Materials not claimed in
the Patent Rights; however, if a Project Material incorporates one or more POLYMEDIX Proprietary
Materials, University may not exploit commercial rights in that Project Material without the
written consent of POLYMEDIX.



     8.03 — Notice of Inventions and Project Materials. The Principal Investigator shall
promptly disclose to University the conception or reduction to practice of any Invention and the
development or discovery of any commercially valuable Project Material that is not otherwise
disclosed as an Invention. University and POLYMEDIX shall provide prompt written notice to the
other of the internal disclosure by its employees of any Invention. University and POLYMEDIX shall
discuss whether to obtain Patent Rights for the Invention and whether such Patent Rights would
constitute University Patent Rights or Joint Patent Rights



     8.04 — Responsibility for Patent Rights.



          (a) Primary Responsibility with University. University shall have primary
responsibility, at the expense of POLYMEDIX, for the preparation, filing, prosecution, and
maintenance of
all University Patent Rights and Joint Patent Rights, using patent counsel
reasonably acceptable to POLYMEDIX. University shall consult with POLYMEDIX as to the preparation,
filing, prosecution, and maintenance of




Page 5 of 11 Pages









 








January 22, 2004



all such Patent Rights reasonably prior to any deadline or
action with the U.S. Patent & Trademark Office or any foreign patent office and shall furnish
POLYMEDIX with copies of all relevant documents reasonably in advance of such consultation.




          (b) Abandonment. In the event that University desires to abandon any patent or patent
application within the Patent Rights, or if University declines to assume responsibility for
obtaining
patent protection for any Invention, University shall provide POLYMEDIX with reasonable prior
written notice of such intended abandonment or decline of responsibility, and POLYMEDIX shall have
the right, at its expense, to prepare, file, prosecute, and maintain the relevant Patent Rights.




          (c) Cooperation. University and POLYMEDIX shall cooperate fully in the preparation,
filing, prosecution, and maintenance of all University Patent Rights and Joint Patent Rights. Such
cooperation includes, without limitation, (i) promptly executing all papers and instruments or
requiring employees of University or POLYMEDIX to execute such papers and instruments as reasonable
and appropriate so as to enable University or POLYMEDIX to file, prosecute, and maintain such
Patent Rights in any country; and (ii) promptly informing the other party of matters that may
affect the preparation, filing, prosecution, or maintenance of any such Patent Rights.




          (d) Payment of Expenses. Within thirty (30) days after University invoices POLYMEDIX,
POLYMEDIX shall reimburse University for all reasonable patent-related expenses incurred by
University pursuant to Section 8.04(a). POLYMEDIX may elect, upon sixty (60) days written notice
to University, to cease payment of the expenses associated with obtaining or maintaining patent
protection for one or more Patent Rights in one or more countries. In such event, POLYMEDIX shall
lose all rights under this Agreement with respect to such Patent Rights in such countries.




          8.05 — Option for an Exclusive License. University hereby grants POLYMEDIX a first
option to obtain a worldwide, exclusive license, with the right to sublicense under University’s
commercial rights to any University Patent Rights, Joint Patent Rights, and commercially valuable
Project Materials in the Field (the “Option Right”) covered by this Agreement. POLYMEDIX may
exercise the Option Right with respect to any Patent Right or Project Material by written notice to
University which is received not later than ninety (90) days after the disclosure to POLYMEDIX of
the relevant Invention or Project Material (the “Option Period”). If POLYMEDIX elects not to
exercise the Option Right, or fails to exercise the Option Right during the Option Period,
University shall be free to license its commercial rights under the relevant Patent Right or
Project Material to any third party. If POLYMEDIX does elect to exercise the Option Right, the
University and POLYMEDIX shall use the agreed upon commercially reasonable terms and conditions as
set forth in Appendix B. If POLYMEDIX and the University are unable to reach agreement within six
(6) months, the University may offer its commercial rights in the relevant Patent Right or Project
Material to any third parties; provided, however, that for a period of ten (10) months after the
Option Period expires, University may only offer such rights to third parties on terms and
conditions that are not more favorable than the last offer made by University to POLYMEDIX, unless
University first provides POLYMEDIX with written notice of the more favorable offer and POLYMEDIX
either (i) declines in writing to accept the offer or (ii) fails to respond to the offer within
sixty (60) days after receiving such notice.




Article 9. — Use of Research Results and Project Materials




     Each party shall have the unrestricted right to use Research Results for any purpose and to
use Project Materials for internal research (but not in a commercial product or in connection with
a commercial service); provided, however, that in the case of POLYMEDIX, such use does not infringe
any claim of a patent application or an issued patent included in the University Patent Rights for
which POLYMEDIX has failed to obtain a license as provided in Article 8.05 above. The University
will, however, under all conditions, retain the right to use the invention in all its forms and
applications for teaching and research purposes.



Page 6 of
11 Pages









 





January 22, 2004




Article 10. — Copyrightable Works




     University or its employees shall have sole ownership of any copyrighted or copyrightable
works (including reports and publications) that are created by University employees in the
performance of the Research Project. University and the Principal Investigator hereby grant
POLYMEDIX an irrevocable, royalty-free, nontransferable, non-exclusive right to copy and distribute
any research reports furnished to
POLYMEDIX under this Agreement and to prepare, copy, and distribute derivative works based on these
research reports.



Article 11. — Title to Equipment and Materials




     Title to any equipment or materials purchased under this CUMIRP agreement with POLYMEDIX’s
funds as seen in the cost detail of Article 5 shall rest with the University.



Article 12. — Termination of the Agreement




     12.01 — Notice. This Agreement may be terminated without cause, at any time by
POLYMEDIX with six months notice.



     12.02 — Early Termination. If this Agreement is terminated prior to the expiration of
the Term for any reason other than a material breach by University (as described in Section 12.03),
then on the effective date of such termination, POLYMEDIX shall pay University the entire amount of
any uncancellable financial commitments that University intended to pay through POLYMEDIX
Contributions, including without limitation (i) salaries for appointed employees for the remainder
of their term of appointment (e.g., postdoctoral fellows) and (ii) University expenses previously
incurred for equipment, travel, and associated indirect costs. At the request of POLYMEDIX, within
ninety (90) days after the expiration or termination of this Agreement, University shall furnish
POLYMEDIX with a final accounting of all expenses incurred in connection with the Research Project
and all funds received from POLYMEDIX pursuant to Article 5 together with a check payable to
POLYMEDIX in the amount of any unexpended and uncommitted funds.



     12.03 — Termination for Default. In the event that either party commits a material
breach of its obligations under this Agreement and fails to cure that breach within sixty (60) days
after receiving written notice thereof, the other party may terminate this Agreement immediately
upon written notice to the party in breach. If the alleged breach involves nonpayment of any
amounts due University under this Agreement, POLYMEDIX shall have only one opportunity to cure a
material breach for which it receives notice as described above; any subsequent material breach by
POLYMEDIX will entitle University to terminate this Agreement immediately upon written notice to
POLYMEDIX, without the sixty-day cure period.



     12.04 — Force Majeure. Neither party will be responsible for delays resulting from
causes beyond the reasonable control of such party, including without limitation fire, explosion,
flood, war, strike, or riot, provided that the nonperforming party uses commercially reasonable
efforts to avoid or remove such causes of nonperformance and continues performance under this
Agreement with reasonable dispatch whenever such causes are removed.



     12.05 — Effect of Termination. The following provisions shall survive the expiration
or termination of this Agreement: Articles 2, 4, 6, 7, 8, 9, 10, 13, and 14; Sections 3.06
(obligation to deliver final report), 12.02 (obligation to deliver final accounting), 12.05, 15.01,
15.02 and 15.09.



Article 13. — Contacts and Notices




     Any notices required or permitted under this Agreement shall be in writing, shall specifically
refer to this Agreement, and shall be sent by hand, recognized national overnight courier,
confirmed



Page 7 of 11 Pages









 





January 22, 2004



facsimile transmission, confirmed electronic mail, or registered or certified mail,
postage prepaid, return receipt requested, to the following addresses or facsimile numbers of the
parties:



First and foremost to the University :




Director, Office of Grants & Contracts Administration (OGCA)

University of Massachusetts

Amherst, MA 01003

Tel: (413) 545-0698           Fax: (413) 545-1202




And then to CUMIRP:




Director, CUMIRP

Silvio O. Conte, National Center for Polymer Research

University of Massachusetts

Amherst, MA 01003-4530.

Tel: (413) 545-2236           Fax: (413) 577-1517




And, to POLYMEDIX:




Dawn Eringas, Vice President, Business Development

PolyMedix

P.O. Box 130

Bryn Mawr, PA 19010

Tel: (610) 613-0621           Fax: (610) 526-0732




Article 14. Dispute Resolution




     14.01 — Procedures Mandatory. The parties agree that any dispute arising out of or
relating to this Agreement shall be resolved solely by means of the procedures set forth in this
Article, and that such procedures constitute legally binding obligations that are an essential
provision of this Agreement; provided, however, that all procedures and deadlines specified in this
Article may be modified by written agreement of the parties. If either party fails to observe the
procedures of this Article, as modified by their written agreement, the other party may bring an
action for specific performance in any court of competent jurisdiction.



     14.02 — Dispute Resolution Procedures.



          (a) Negotiation. In the event of any dispute arising out of or relating to this
Agreement, the affected party shall notify the other party, and the parties shall attempt in good
faith to resolve the matter within thirty (30) days after the effective date of such notice. Any
disputes not resolved by good faith discussions shall be referred to senior executives of each
party, who shall meet at a mutually acceptable time and location within ten (10) days after the
good faith attempt to negotiate a settlement.




          (b) Mediation. If the matter remains unresolved within sixty (60) days after the
Notice Date, or if the senior executives fail to meet within thirty (30) days after the Notice
Date, either party may initiate mediation upon written notice to the other party, whereupon both
parties shall be obligated to engage in a mediation proceeding under the then current Center for
Public Resources (“CPR”) Model Procedure for Mediation of Business Disputes, except that specific
provisions of this Section shall override inconsistent provisions of the CPR Model Procedure. The
mediator will be selected from the CPR Panels of Neutrals. If the parties cannot agree upon the
selection of a mediator within ninety (90) days after the Notice Date, then upon the request of
either party, the CPR shall appoint the mediator.





Page 8 of
11 Pages









 








January 22, 2004



The parties shall attempt to resolve the dispute
through mediation until one of the following occurs: (i) the parties reach a written settlement;
(ii) the mediator notifies the parties in writing that they have reached an impasse; (iii) the
parties agree in writing that they have reached an impasse; or (iv) the parties have not reached a
settlement within one hundred and twenty (120) days after the Notice Date.




          (c) Trial Without Jury. If the parties fail to resolve the dispute through mediation,
or if neither party elects to initiate mediation, each party shall have the right to pursue any
other remedies
legally available to resolve the dispute, provided, however, that the parties expressly waive any
right to a jury trial in any legal proceeding under this Section.




     14.03 — Preservation of Rights Pending Resolution.



          (a) Performance to Continue. Each party shall continue to perform its obligations
under this Agreement pending final resolution of any dispute arising out or relating to this
Agreement; provided, however, that a party may suspend performance of its obligations during any
period in which the other party fails or refuses to perform its obligations.




          (b) Provisional Remedies. Although the procedures specified in this Article are the
sole and exclusive procedures for the resolution of disputes arising out or relating to this
Agreement, either party may seek a preliminary injunction or other provisional equitable relief if,
in its reasonable judgment, such action is necessary to avoid irreparable harm to itself or to
preserve its rights under this Agreement.




          (c) Statute of Limitations. The parties agree that all applicable statutes of
limitation and time-based defenses (such as estoppel and laches) shall be tolled while the
procedures set forth in Subsections 14.02(a) and 14.02(b) are pending. The parties shall take any
actions necessary to effectuate this result.




Article 15. Miscellaneous




     15.01 — Indemnification.



          (a) Indemnity. POLYMEDIX shall indemnify, defend, and hold harmless University and
its trustees, officers, faculty, students, employees, and agents and their respective successors,
heirs and assigns (the “Indemnitees”), against any liability, damage, loss, or expense (including
reasonable attorneys fees and expenses of litigation) incurred by or imposed upon any of the
Indemnitees in connection with any claims, suits, actions, demands or judgments arising out of any
theory of liability (including without limitation actions in the form of tort, warranty, or strict
liability and regardless of whether such action has any factual basis) relating to this Agreement
or concerning any product, process, or service that is made, used, or sold pursuant to any right or
license granted under this Agreement; provided, however, that such indemnification shall not apply
to any liability, damage, loss, or expense to the extent directly attributable to (i) the negligent
activities or intentional misconduct of the Indemnitees or (ii) the settlement of a claim, suit,
action, or demand by Indemnitees without the prior written approval of POLYMEDIX.




          (b) Procedures. The Indemnitees agree to provide POLYMEDIX with prompt written notice
of any claim, suit, action, demand, or judgment for which indemnification is sought under this
Agreement. POLYMEDIX agrees, at its own expense, to provide attorneys reasonably acceptable to
University to defend against any such claim. The Indemnitees shall cooperate fully with POLYMEDIX
in such defense and will permit POLYMEDIX to conduct and control such defense and the disposition
of such claim, suit, or action (including all decisions relative to litigation, appeal, and
settlement); provided, however, that any Indemnitee shall have the right to retain its own counsel,
at the expense of POLYMEDIX, if representation of such Indemnitee by the counsel retained by
POLYMEDIX would be inappropriate because of actual or potential differences in the interests of
such Indemnitee and any other party represented by such counsel. POLYMEDIX agrees to keep
University informed of the progress in




Page 9 of
11 Pages









 








January 22, 2004



the defense and disposition of such claim and to consult
with University with regard to any proposed settlement.




     15.02 — Publicity Restrictions. POLYMEDIX shall not use the name of University or any
of its trustees, officers, faculty, students, employees, or agents, or any adaptation of such
names, or any terms of this Agreement in any promotional material or other public announcement or
disclosure without the prior written consent of University. The foregoing notwithstanding,
POLYMEDIX shall have the right to disclose such information without the consent of University (i)
in any prospectus, offering memorandum, or other document or filing required by applicable
securities laws or other applicable law or regulation, provided that POLYMEDIX shall have given
University at least ten (10) days prior written notice of the
proposed text for the purpose of giving University the opportunity to comment on such text, and
(ii) to potential investors under a non-disclosure obligation.



     15.03 — Warranty Disclaimer. University makes no express warranties and disclaims any
implied warranties as to any matter relating to this Agreement, including without limitation the
performance or results of the Research Project; the availability of legal protection for any
Research Results, Project Materials, Inventions, copyrightable works, or any other work product of
the Research Project; or the validity or enforceability of any Patent Right that may be obtained
pursuant to this Agreement. THERE ARE NO EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE FOR ANY PROJECT MATERIALS OR RESEARCH RESULTS, OR THAT THE USE OF
PROJECT MATERIALS OR RESEARCH RESULTS WILL NOT INFRINGE ANY PATENT RIGHTS OR OTHER PROPRIETARY
RIGHTS OF A THIRD PARTY.



     15.04 — Research Partially Funded by Grants.



          (a) Federal Government. To the extent that any Invention has been partially funded by
the federal government, this Agreement and the grant of any rights in such Invention is subject to
and governed by federal law as set forth in 35 U.S.C. §§ 201-211, and the regulations promulgated
thereunder, as amended, or any successor statutes or regulations. If any term of this Agreement
fails to conform with such laws and regulations, the relevant term shall be deemed an invalid
provision and modified by the parties pursuant to Section 15.10.




          (b) Non-Profit Organization. To the extent that any Invention has been partially
funded by a non-profit organization, this Agreement and the grant of any rights in such Invention
is subject to and governed by the terms and conditions of the applicable research grant. If any
term of this Agreement fails to conform with such terms and conditions, the relevant term shall be
deemed an invalid provision and modified by the parties pursuant to Section 15.10. At the request
of POLYMEDIX, University shall make available to POLYMEDIX the terms and conditions of any research
grants that will partially fund the Research Project.




     15.05 — Tax-Exempt Status. POLYMEDIX acknowledges that University, as a public
University of the Commonwealth of Massachusetts, holds the status of an exempt organization under
the United States Internal Revenue Code. POLYMEDIX also acknowledges that certain facilities in
which the Research Project may be performed were financed through offerings of tax-exempt bonds.
If the Internal Revenue Service determines, or if counsel to University reasonably determines, that
any term of this Agreement jeopardizes the tax-exempt status of University or the bonds used to
finance University facilities, the relevant term shall be deemed an invalid provision and modified
by the parties pursuant to Section 15.10.



     15.06 — Relationship of Parties. For the purposes of this Agreement, each party is an
independent contractor and not an agent or employee of the other party. Neither party shall have
authority to make any statements, representations, or commitments of any kind, or to take any
action which shall be



Page 10 of
11 Pages









 





January 22, 2004



binding on the other party, except as may be explicitly provided for in this
Agreement or authorized in writing by the other party.




     15.07 — Assignment. This Agreement may not be assigned by either party without the
prior written consent of the other party, except that POLYMEDIX may assign this Agreement to an
affiliate or to a successor in connection with the merger, consolidation, or sale of all or
substantially all of its assets or that portion of its business to which this Agreement relates.



     15.08 — Amendment and Waiver. This Agreement may be amended, supplemented, or
otherwise modified only by means of a written instrument signed by both parties. Any waiver of any
rights or failure to act in a specific instance shall relate only to such instance and shall not be
construed as an agreement to waive any rights or fail to act in any other instance, whether or not
similar.



     15.09 — Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts irrespective of any conflicts of law
principles.



     15.10 —  Severability. In the event that any provision of this Agreement shall be
held invalid or unenforceable for any reason, such invalidity or unenforceability shall not affect
any other provision of this Agreement, and the parties shall negotiate in good faith to modify the
Agreement to preserve (to the extent possible) their original intent. If the parties fail to reach
a modified agreement within sixty (60) days after the relevant provision is held invalid or
unenforceable, then the dispute shall be resolved in accordance with the procedures set forth in
Article 14. While the dispute is pending resolution, this Agreement shall be construed as if such
provision were deleted by agreement of the parties.



     15.11 — Public Records. Anything to the contrary in this agreement notwithstanding,
the University is not required and will not be required under this agreement and any amendments or
modifications to this agreement to refuse to disclose to third parties any materials which the
University would otherwise be obliged to disclose under M.G.L. Chapter 4, Section 7, Subsection
Twenty-Sixth and other applicable statutes of the Commonwealth of Massachusetts which pertain to
disclosure of “Public Records’.



     15.12 — Entire Understanding. This agreement constitutes the entire understanding
between the parties hereto relating to the subject matter hereof, and no amendments, modifications,
or changes shall have any force and effect unless set forth in a subsequent instrument duly
executed by the parties hereto with all the formalities herein.



     Executed as a sealed instrument by the parties hereto through their duly authorized
representatives as hereinafter set forth on the date first above written.



PolyMedix, Bryn Mawr, PA




	 	 	 	 	 	 	 	 	 	 	 
	By:

	 	Nicholas Landekic
	 	 	 	Signature:
	 	/s/ Nicholas Landekic	 	 
	 

	 	 
	 	 	 	 	 	 	 	 
	 
	Title:

	 	President and CEO
	 	 	 	Date:	 	2/2/04	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	University of Massachusetts, Amherst, MA	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	Carol P. Sprague	 	 	 	Signature:	 	/s/ Carol P. Sprague	 	 
	 

	 	 
	 	 	 	 	 	 	 	 
	 
	Title:

	 	Director, Office of
Grants and Contracts
	 	 	 	Date:	 	3/12/04	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	James D. Capistran
	 	 	 	Signature:	 	/s/ James D. Capistran	 	 
	 

	 	 
	 	 	 	 	 	 	 	 
	 
	Title:

	 	Director, CUMIRP
	 	 	 	Date:	 	1/22/04	 	 






Page 11 of
11 Pages