Cooperative Research and Development Agreement


Exhibit 10.40


Cooperative Research and

 Development Agreement


 


(CACR - 0774)


 


Clinical Development of Perifosine





Sherry Ansher, Ph.D.

Janet Dancey, M.D.

CTEP

DCTD


 


Dr. rer. nat. Rainer
Voegeli


ASTA Medica, Inc.


 


Prepared by

Technology Development and Commercialization
Branch

National Cancer Institute





  




PUBLIC HEALTH SERVICE


COOPERATIVE RESEARCH AND DEVELOPMENT
AGREEMENT


 


This Cooperative Research and Development Agreement,
hereinafter referred to as the “CRADA,” consists of this Cover Page, and attached Agreement, and various Appendices
referred in the Agreement.  This Cover Page serves to identify the Parties to this CRADA:


                               
               
(1)                the following Bureau(s),
Institute(s), Center(s) or Division(s) of the National Institutes of Health (“NIH”), the Food and Drug Administration
(“FDA”), and the Centers for Disease Control and Prevention (“CDC”):


National Cancer Institute, hereinafter singly or collectively referred to as
the Public Health Service (“PHS”); and


                               
               
(2)                ASTA Medica, Incorporated, which has
offices at 890 East Street, Tewksbury, MA  01876, hereinafter referred to as the “Collaborator.”


 


 


Page 1 of 18




 COOPERATIVE RESEARCH AND DEVELOPMENT
AGREEMENT


Article 1.  Introduction


This Cooperative Research and Development Agreement (CRADA) between PHS and
the Collaborator will be effective when signed by all Parties.  The research and development activities which will be
undertaken by each of the Parties in the course of this CRADA are detailed in the Research Plan (RP) which is attached as Appendix
A.  The funding and staffing commitments of the Parties are set forth in Appendix B.  Any exceptions or changes to the
CRADA are set forth in Appendix C.  This CRADA is made under the authority of the Federal Technology Transfer Act, 15 U.S.C.
§3710a and is governed by its terms.


Article 2.  Definitions


As used in this CRADA, the following terms shall have the indicated
meanings:


	2.1	 “Affiliate” means any corporation or other business entity
    controlled by, controlling, or under common control with Collaborator. 
    For this purpose, A “control” means direct or indirect beneficial ownership
    of at least fifty (50) percent of the voting stock or at least fifty (50)
    percent interest in the income of such corporation or other business.
	2.2	 “Cooperative Research and Development Agreement” or “CRADA” means
    this Agreement, entered into by PHS pursuant to the Federal Technology
    Transfer Act of 1986, as amended, 15 U.S.C. 3710a et seq. and
    Executive Order 12591 of October 10, 1987.
	2.3	
“Government” means the Government of the United States as represented
    through the PHS agency that is a Party to this agreement.
	
    2.4	
“IP” means intellectual property.
	2.5	 “Invention” means any invention or discovery which is or may be
    patentable or otherwise protected under title 35, United States Code, or any
    novel variety or plant which is or may be protectable under the Plant
    Variety Protection Act (7 U.S.C. 2321 et
seq.).
	2.6	 “Principal Investigator(s)” or “PIs” means the persons
    designated respectively by the Parties to this CRADA who will be responsible
    for the scientific and technical conduct of the RP.
	2.7	
“Proprietary/Confidential Information” means confidential scientific,
    business, or financial information provided that such information does not
    include:
	 	
    2.7.1	
    information that is publicly known or available from other sources who are
    not under a confidentiality obligation to the source of the information;
	 	
    2.7.2  	
    information which has been made available by its owners to others without a
    confidentiality obligation;
	 	
    2.7.3	
    information which is already known by or available to the receiving Party
    without a confidentiality obligation; or
	 	
    2.7.4	
    information which relates to potential hazards or cautionary warnings
    associated with the production, handling or use of the subject matter of the
    Research Plan of this CRADA.
	 2.8	 “Research
Materials” means all tangible materials other than Subject Data first produced in the performance of this
CRADA.




Page 2 of 18





 


	 2.9	 “Research
Plan” or “RP” means the statement in Appendix A of the respective research and development commitments
of the Parties to this CRADA.
	
    2.10	 “Subject
Invention” means any Invention of the Parties, conceived or first actually reduced to practice in the performance of the
Research Plan of this CRADA.
	
    2.11	 “Subject
Data” means all recorded information first produced in the performance of this CRADA by the Parties.
	Article 3.  Cooperative Research
	
    3.1	 Principal
Investigators.  PHS research work under this CRADA will be performed by the PHS laboratory identified in the RP, and the
PHS Principal Investigator (PI) designated in the RP will be responsible for the scientific and technical conduct of this project
on behalf of PHS.  Also designated in the RP is the Collaborator PI who will be responsible for the scientific and technical
conduct of this project on behalf of the Collaborator.
	
    3.2	 Research Plan
Change.  The RP may be modified by mutual written consent of the Principal Investigators.  Substantial changes in the
scope of the RP will be treated as amendments under Article 13.6.
	Article 4.  Reports
	
    4.1	 Interim
Reports.  The Parties shall exchange formal written interim progress report on a schedule agreed to by the PIs, but at
least within twelve (12) months after this CRADA becomes effective and at least within every twelve (12) months thereafter. 
Such reports shall set forth the technical progress made, identifying such problems as may have been encountered and establishing
goals and objectives requiring further effort, any modifications to the Research Plan pursuant to Article 3.2, and all
CRADA-related patent applications filed.
	
    4.2	 Final
Reports.  The Parties shall exchange final reports of their results within four (4) months after completing the project
described in the RP or after the expiration or termination of this CRADA.
	Article 5.  Financial and Staffing Obligations
	
    5.1	 PHS and
Collaborator Contributions.  The contributions of the Parties, including payment schedules, if applicable, are set forth
in Appendix B.  PHS shall not be obligated to perform any of the research specified herein or to take any other action
required by this CRADA if the funding is not provided as set forth in Appendix B.  PHS shall return excess funds to the
Collaborator when it sends its final fiscal report pursuant to Article 5.2, except for staffing support pursuant to Article
10.3  Collaborator acknowledges that the U.S. Government will have the authority to retain and expend any excess funds for up
to one (1) year subsequent to the expiration or termination of the CRADA to cover any costs incurred during the term of the CRADA
in undertaking the work set forth in the RP.
	
    5.2	 Accounting
Records.  PHS shall maintain separate and distinct current accounts, records, and other evidence supporting all its
obligations under this CRADA, and shall provide the Collaborator a final fiscal report pursuant to Article 4.2.
	
    5.3	 Capital
Equipment.  Equipment purchased by PHS with funds provided by the Collaborator shall be the property of PHS.  All
capital equipment provided under this CRADA by one party for the use of another Party remains the property of the providing Party
unless other disposition is mutually agreed upon by in writing by the Parties.  If title to this equipment remains with the
providing Party, that Party is responsible for maintenance of the equipment and the costs of its transportation to and from the
site where it will be used.



 


Page 3 of 18




	Article 6.  Intellectual Property Rights and Patent
Applications
	
    6.1	 Reporting.  The
Parties shall promptly report to each other in writing each Subject Invention resulting from the research conducted under this
CRADA that is reported to them by their respective employees.  Each Party shall report all Subject Inventions to the other
Party is sufficient detail to determine inventorship.  Such reports shall be treated as Proprietary/Confidential Information
in accordance with Article 8.4.
	
    6.2	 Collaborator Employee
Inventions.  If the Collaborator does not elect to retain its IP rights, the Collaborator shall offer to assign these IP
rights to the Subject Invention to PHS pursuant to Article 6.5.  If PHS declines such assignment, the Collaborator may release
its IP rights as it may determine.
	
    6.3	 PHS
Employee Inventions.  PHS on behalf of the U.S. Government may elect to retain IP rights to each Subject Invention made
solely by PHS employees.  If PHS does not elect to retain IP rights, PHS shall offer to assign these IP rights to such Subject
Invention to the Collaborator pursuant to Article 6.5.  If the Collaborator declines such assignment, PHS may release IP
rights in such Subject Invention to its employee inventors pursuant to Article 6.6.
	
    6.4	 Joint
Inventions.  Each Subject Invention made jointly by PHS and Collaborator employees shall be jointly owned by PHS and
Collaborator.  The Collaborator may elect to file the joint patent or other IP application(s) thereon and shall notify PHS
promptly upon making this election.  If the Collaborator decides to file such applications, it shall do so in a timely manner
and at its own expense.  If the Collaborator does not elect to file such application(s), PHS on behalf of the U.S. Government
shall have the right to file the joint application(s) in a timely manner and at its own expense.  If either Party decides not
to retain its IP rights to a jointly owned Subject Invention, it shall offer to assign such rights to the other Party pursuant to
Article 6.5.  If the other Party declines such assignment, the offering Party may release its IP rights as provided in
Articles 6.2, 6.3 and 6.6.
	
    6.5	 Filing of
Patent Applications.  With respect to Subject Inventions made by the Collaborator as described in Article 6.2, or by PHS
as described in Article 6.3, a Party exercising its right to elect to retain IP rights to a Subject Invention agrees to file patent
or other IP applications in a timely manner and at its own expense and after consultation with the other Party.  The Party
shall notify the other Party of its decision regarding filing in countries other than the United States in a timely manner. 
The Party may elect not to file a patent or other IP application thereon in any particular country or countries provided it so
advises the other Party ninety (90) days prior to the expiration of any applicable filing deadline, priority period or statutory
bar date, and hereby agrees to assign its IP right, title and interest in such country or countries to the Subject Invention to the
other Party and to cooperate in the preparation and filing of a patent or other IP applications.  In any countries in which
title to patent or other IP rights is transferred to the Collaborator, the Collaborator agrees that PHS inventors will share in any
royalty distribution that the Collaborator pays to its own inventors.
	
    6.6	 Release
to Inventors.  In the event neither of the Parties to this CRADA elects to files a patent or other IP application on a
Subject Invention, either or both (if a joint invention) may retain or release their IP rights in accordance with their respective
policies and procedures.  However, the Government shall retain a nonexclusive, non-transferable, irrevocable, royalty-free
license to practice any such Subject Invention or have it practiced throughout the world by or on behalf of the
Government.
	
    6.7	 Patent
Expenses.  The expenses attendant to the filing of patent or other IP applications generally shall be paid by the Party
filing such application.  If an exclusive license to any Subject Invention is granted to the Collaborator, the Collaborator
shall be responsible for all past and future out-of-pocket expenses in connection with the preparation, filing, prosecution and
maintenance of any applications claiming such exclusively-licensed inventions and any patents or other IP grants that may issue on
such applications.  The Collaborator may waive its exclusive license rights on any application, patent or other IP grant at
any time, and incur no subsequent compensation obligation for that application, patent or IP grant.
	
    6.8	 Prosecution of Intellectual
Property Applications.  Within one month of receipt or filing, each Party shall provide the other Party with copies of the
applications and all documents received from or filed with the relevant patent or other IP office in connection with the
prosecution of such applications.  Each Party shall also provide the other Party with the power to inspect and make copies of
all documents retained in the patent or other IP application files by the applicable patent or other IP office.  Where
licensing is contemplated by Collaborator, the Parties agree to consult with each other with respect to the prosecution of
applications for PHS Subject Inventions described in Article 6.3 and joint Subject Inventions described in Article 6.4  If the
Collaborator elects to file and prosecute IP applications on joint Subject Inventions pursuant to Article 6.4, PHS will be granted
an associate power of attorney (or its equivalent) on such IP applications.



Page 4 of 18




	

Article 7.  Licensing


    
	
    7.1	 Options
for Commercialization License.  With respect to Government IP rights to any Subject Invention not made sole by the
Collaborator’s employees for which a patent or other IP application is filed, PHS hereby grants to the Collaborator an
exclusive option to elect an exclusive or nonexclusive commercialization license, which s substantially in the form of the
appropriate model PHS license agreement.  This option does not apply to Subject Inventions conceived prior to the effective
date of this CRADA that are reduced to practice under this CRADA, if prior to that reduction to practice, PHS has filed a patent
application on the invention and has licensed it or offered to license it to a third party.  The terms of the license will
fairy reflect the nature of the invention, the relative contributions of the Parties to the invention and the CRADA, the risks
incurred by the Collaborator and the costs of subsequent research and development needed to bring the invention to the
marketplace.  The field of use of the license will be commensurate with the scope of the RP.
	
    7.2	 Exercise
of License Option.  The option of Article 7.1 must be exercised by written notice mailed within three (3) months after
either (i) Collaborator receives written notice from PHS that the patent or other IP application has been filed; or (ii) the date
Collaborator files such IP application.  Exercise of this option by the Collaborator initiates a negotiation period that
expires none (9) months after the exercise of the option.  If the last proposal by the Collaborator has not been responded to
in writing by PHS within this nine (9) month period, the negotiation period shall be extended to expire one (1) month after PHS so
responds, during which month the Collaborator may accept in writing the final license proposals of PHS.  In the absence of
such acceptance, or an extension of the time limits by PHS, PHS will be free to license such IP rights to others.   In the
event that the Collaborator elects the option for an exclusive license, but not such license is executed during the negotiation
period.  PHS agrees not to make an offer for an exclusive license on more favorable terms to a third party for a period of sic
(6) months without first offering Collaborator those more favorable terms.  These times may be extended at the sole discretion
of PHS upon good cause shown in writing by the Collaborator.
	
    7.3	 License
for PHS Employee Inventions and Joint Inventions.  Pursuant to 15 U.S.C. § 3710a(b)(1)(A), for Subject Inventions
made under this CRADA by a PHS employee(s) or jointly by such employee(s) and employees of the Collaborator pursuant to Articles
6.3 and 6.4 and licensed pursuant to the option of Article 7.1, the Collaborator grants to the Government a nonexclusive,
nontransferable, irrevocable paid-up license to practice the invention or have the invention practiced throughout the world by or
on behalf of the Government.  In the exercise of such license the Government shall not publicly disclose trade secrets or
commercial or financial information that is privileged or confidential within the meaning of 5 U.S.C. 552(b)(4) or which would be
considered as such if it had been obtained from a non-Federal party.
	
    7.4	 License
in Collaborator Inventions.  Pursuant to 15 U.S.C. § 3710a(b)(2), for inventions made solely by Collaborator
employees under this CRADA pursuant to Article 6.2, the Collaborator grants to the Government a nonexclusive, nontransferable,
irrevocable, paid-license to practice the invention or have the invention practiced throughout the world by or on behalf of the
Government for research or other Government purposes.
	
    7.5	 Third
Party License.  Pursuant to 15 U.S.C. § 3710a(b)(1)(B), if PHS grants an exclusive license to a Subject Invention
made wholly by PHS employees or jointly with a Collaborator under this CRADA, pursuant to Articles 6.3 and 6.4, the Government
shall retain the right to require the Collaborator to grant to a responsible applicant a nonexclusive, partially exclusive, or
exclusive sublicense to use the invention in Collaborator’s licensed field of use on terms that are reasonable under the
circumstances; or if the Collaborator fails to grant such a license, to grant the license itself.  The exercise of such rights
by the Government shall only be in exceptional circumstances and only if the Government determines (i) the action is necessary to
meet health or safety needs that are not reasonably satisfied by Collaborator, (ii) the action is necessary to meet requirements
for public use specified by Federal regulations, and such requirements are not reasonably satisfied by the Collaborator, or (iii)
the Collaborator has failed to comply with an agreement containing provisions described in 15 U.S.C. 3710a(c)(4)(B).  The
determination made by the Government under this Article is subject to administrative appeal and judicial (review under 35 U.S.C.
203(2).



Page 5 of 18




	
    7.6	 Joint
Inventions Not Exclusively Licensed.  In the event that the Collaborator does not acquire an exclusive commercialization
license to IP rights in all fields in joint Subject Inventions described in Article 6.4, then each Party shall have the right to
use the joint Subject Invention and to license its use to others in all fields not exclusively licensed to Collaborator.  The
Parties may agree to a joint licensing approach for such IP rights.
	Article 8.  Proprietary Rights and Publication
	
    8.1	 Right of
Access.  PHS and the Collaborator agree to exchange all Subject Data produced in the course of research under this
CRADA.  Research Materials will be shared equally by the Parties to the CRADA unless other disposition is agreed to by the
Parties.  All Parties to this CRADA will be free to utilize Subject Data and Research Materials for their own purposes,
consistent with their obligations under this CRADA.
	
    8.2	 Ownership of Subject Data
and Research Materials.  Subject to the sharing requirements of Paragraph 8.1 and the regulatory filing requirements of
Paragraph 8.3, the producing Party will retain ownership of and title to all Subject Inventions, all Subject Data and all Research
Materials produced solely by their investigators.  Jointly developed Subject Inventions, Subject Data and Research Materials
will be jointly owned.
	
    8.3	 Dissemination of Subject
Data and Research Materials.  To the extent permitted by law, the Collaborator and PHS agree to use reasonable efforts to
keep Subject Data and Research Materials confidential until published  or until corresponding patent applications are
filed.  Any information that would identify human subjects of research or patients will always be maintained
confidentially.  To the extent permitted by law, the Collaborator shall have the exclusive right to use any and all CRADA
Subject Data in and for any regulatory filing by or on behalf of Collaborator, except that PHS shall have the exclusive right to
use Subject Data for that purpose, and authorize others to do so, if the CRADA is terminated or if Collaborator abandons its
commercialization efforts.
	
    8.4	 Proprietary/Confidential
Information.  Each Party agrees to limit its disclosure of Proprietary/Confidential Information to the amount necessary to carry out
the Research Plan of this CRADA, and shall place a confidentiality notice on all such information.  Confidential oral
communications shall be reduced to writing within 30 days by the disclosing Party.  Each Party receiving
Proprietary/Confidential Information agrees that any information so designated shall be used by it only for the purpose described
in the attached Research Plan.  Any Party may object to the designation of information as Proprietary/Confidential Information
by another Party.  Subject Data and Research Materials developed solely by the Collaborator may be designated as
Proprietary/Confidential Information when they are wholly separate from the Subject Data and Research Materials developed jointly
with PHS investigators, and advance designation of such data and material categories is set forth in the RP.  The exchange of
other confidential information, e.g., patient-identifying data, should be similarly limited and treated.  Jointly developed
Subject Data and Research Material derived from the Research Plan may be disclosed by Collaborator to a third party under a
confidentiality agreement for the purpose of possible sublicensing pursuant to the Licensing Agreement and subject to Article
8.7.
	
    8.5	 Protection of
Proprietary/Confidential Information.  Proprietary/Confidential Information shall not be disclosed, copied, reproduced or
otherwise made available to any other person or entity without the consent of the owning Party except as required under court order
or the Freedom of Information Act (5 U.S.C. 552).  Each Party agrees to use its best efforts to maintain the confidentiality
of Proprietary/Confidential Information.  Each Party agrees that the other Party is not liable for the disclosure of
Proprietary/Confidential Information which, after notice to and consultation with the concerned Party, the other Party is
possession of the Proprietary/Confidential Information determines may not be lawfully withheld, provided the concerned Party has
been given an opportunity to seek a court order to enjoin disclosure.



Page 6 of 18




	
    8.6	 Duration of Confidentiality
Obligation.  The obligation to maintain the confidentiality of Proprietary/Confidential Information shall expire at the
earlier of the date when the information is no longer Proprietary Information as defined in Article 2.7 or three (3) years after
the expiration or termination date of this CRADA.  The Collaborator may request an extension to this term when necessary to
protect Proprietary/Confidential Information relating to products not yet commercialized.
	
    8.7	 Publication.  The
Parties are encouraged to make publicly available the results of their research.  Before either Party submits a paper or
abstract for publication or otherwise intends to publicly disclose information about a Subject Invention, Subject Data or Research
Materials, the other Party shall be provided thirty (30) days to review the proposed publication or disclosure to assure that
Proprietary/Confidential Information is protected.  The publication or other disclosure shall be delayed for up to thirty (30)
additional days upon written request by any Party as necessary to preserve U.S. or foreign patent or other IP rights.
	Article 9.  Representations and Warranties
	
    9.1	 Representations and
Warranties of PHS.  PHS hereby represents and warrants to the Collaborator that the official signing this CRADA has
authority to do so.
	
    9.2	 Representations and
Warranties of the Collaborator.(a)  The Collaborator hereby
represents and warrants to PHS that the Collaborator has the requisite power and authority to enter into this CRADA and to perform
according to its terms, and that the Collaborator’s official signing this CRADA has authority to do so.  The
Collaborator further represents that it is financially able to satisfy any funding commitments made in Appendix B.


 (b)  The  Collaborator certified that the statements
herein are true, complete, and accurate to the best of its knowledge.  The
Collaborator is aware that any false, fictitious, or fraudulent statements or
claims may subject it to criminal, civil, or administrative penalties.


    
	Article 10.  Termination
	
    10.1	 Termination By Mutual
Consent.  PHS and the Collaborator may terminate this CRADA, or portions thereof, at any time by mutual written
consent.  In such event the Parties shall specify the disposition of all property, inventions, patent or other IP applications
and other results of work accomplished or in progress, arising from or performed under this CRADA, all in accordance with the
rights granted to the Parties under the terms of this Agreement.
	
    10.2	 Unilateral
Termination.  Either PHS or the Collaborator may unilaterally terminate this entire CRADA at any time by giving written
notice at least thirty (30) days prior to the desired termination date, and any rights accrued in property, patents or other IP
rights shall be disposed of as provided in paragraph 10.1.
	
    10.3	 Staffing. 
If this CRADA is mutually or unilaterally terminated prior to its expiration, funds will nevertheless remain available to PHS for
continuing any staff commitment made by the collaborator pursuant to Article 5.1 above and Appendix B, if applicable, for a period
of six (6) months after such termination.  If there are insufficient funds to cover this expense, the Collaborator agrees to
pay the difference.



Page 7of 18




	
    10.4	 New
Commitments.  No Party shall make new commitments related to this CRADA after a mutual termination or notice of a
unilateral termination and shall, to the extent feasible, cancel all outstanding commitments and contracts by the termination
date.
	
    10.5	 Termination
Costs.  Concurrently with the exchange of final reports pursuant to Articles 4.2 and 5.2, PHS shall submit to the
Collaborator for payment a statement of all costs incurred prior to the date of termination and for all reasonable termination
costs including the cost of returning Collaborator property or removal of abandoned property, for which Collaborator shall be
responsible.
	Article 11.  Disputes
	
    11.1	 Settlement.  Any
dispute arising under this CRADA which is not disposed of by agreement of the Principal Investigators shall be submitted jointly to
the signatories of this CRADA.  If the signatories are unable to jointly resolve the dispute within thirty (30) days after
notification thereof the Assistant Secretary for Health (or his/her designee or successor) shall propose a resolution. 
Nothing in this Article shall prevent any Party from pursuing any additional administrative remedies that may be available and,
after exhaustion of such administrative remedies, pursing all available judicial remedies.
	
    11.2	 Continuation of
Work.  Pending the resolution of any dispute or claim pursuant to this Article, the Parties agree that performance of all
obligations shall be pursued diligently in accordance with the direction of the PHS signatory.
	Article 12.  Liability
	
    12.1	 Property.  The
U.S. Government shall not be responsible for damages to any Collaborator property provided to PHS, where Collaborator retains title
to the property, or any property acquired by Collaborator for its own use pursuant to this CRADA.
	
    12.2	 NO
WARRANTIES.  EXCEPT AS SPECIFICALLY STATED IN ARTICLE 9, THE PARTIES MAKE NO EXPRESS OR IMPLIED WARRANTY AS TO ANY MATTER
WHATSOEVER, INCLUDING THE CONDITIONS OF THE RESEARCH OR ANY INVENTION OR PRODUCT, WHETHER TANGIBLE OR INTANGIBLE, MADE, OR
DEVELOPED UNDER THIS CRADA, OR THE OWNERSHIP MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OF THE RESEARCH OR ANY INVENTION
OR PRODUCT.
	
    12.3	 Indemnification. 
The Collaborator agrees to hold the U.S. Government harmless and to indemnify the Government for all liabilities, demands, damages,
expenses and losses arising out of the use by the Collaborator for any purpose of the Subject Data, Research Materials and/or
Subject Inventions produced in whole or party by PHS employee under this CRADA, unless due to the negligence or willful misconduct
of PHS, its employees, or agents.  The Collaborator shall be liable for any claims or damages it incurs in connection with
this CRADA.  PHS has no authority to indemnify the Collaborator.
	
    12.4	 Force
Majeure.  Neither Party shall be liable for any unforeseeable event beyond its reasonable control not caused by the fault
or negligence of such Party, which causes such Party to be unable to perform its obligations under this CRADA, and which it has
been unable to overcome by the exercise of due diligence.  In the event of the occurrence of such a force majeure
event, the Party unable to perform shall promptly notify the other Party.  It shall further use its best efforts to resume
performance as quickly as possible and shall suspend performance only for such period of time as is necessary as a result of the
force majeure event.
	Article 13.  Miscellaneous
	
    13.1	 Governing Law. 
The construction, validity, performance and effect of this CRADA shall be governed by Federal law, as applied by the Federal Courts
in the District of Columbia.  Federal law and regulations will preempt any conflicting or inconsistent provisions in this
CRADA.



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    13.2	 Entire
Agreement.  This CRADA constitutes the entire agreement between the Parties concerning the subject matter of this CRADA
and supersedes any prior understanding or written or oral agreement.
	
    13.3	 Headings.  Titles
and headings of the articles and subarticles of this CRADA are for convenient reference only, do not form a part of this CRADA, and
shall in no way affect its interpretation.  The PHS component that is the Party for all purposes of this CRADA is the
Bureau(s), Institute(s), Center(s) or Division(s) listed on the Cover Page herein.
	
    13.4	 Waivers.  None of
the provisions of this CRADA shall be considered waived by any Party unless such waiver is given in writing to the other
Party.  The failure of a Party to insist upon strict performance of any of the terms and conditions hereof, or failure or
delay to exercise any rights provided herein or by law, shall not be deemed a waiver of any rights of any Party.
	
    13.5	 Severability. 
The illegality or invalidity of any provisions of this CRADA shall not impair, affect, or invalidate the other provisions of this
CRADA.
	
    13.6	 Amendments.  If
either Party desires a modification to this CRADA, the Parties shall, upon reasonable notice of the proposed modifications or
extension by the Party desiring the change, confer in good faith to determine the desirability of such modification or
extension.  Such modification shall not be effective until a written amendment is signed by the signatories to this CRADA or
by their representatives duly authorized to execute such amendment.
	
    13.7	 Assignment. 
Neither this CRADA nor any rights or obligations of any Party hereunder shall be
    assigned or otherwise transferred by either Party without the prior written
    consent of the other Party.
	
    13.8	 Notices. 
All notices pertaining to or required by this CRADA shall be in writing and shall be signed by an authorized representative and
shall be delivered by hand or sent by certified mail, return receipt requested, with postage prepaid, to the addresses indicated on
the signature page for each Party.  Notices regarding the exercise of license options shall be made pursuant to Article
7.2.  Any Party may change such address by notice given to the other Party in the manner set forth above.
	
    13.9	 Independent
Contractors.  The relationship of the Parties to this CRADA is that of independent contractors and not agents of each
other or joint venturers or partners.  Each Party shall maintain sole and exclusive control over its personnel and
operations.  Collaborator employees who will be working at PHS facilities may be asked to sign a Guest Researcher or Special
Volunteer Agreement appropriately modified in view of the terms of this CRADA.
	
    13.10	 Use of Name or
Endorsements.  By entering into this CRADA, PHS does not directly or indirectly endorse any product or service provided,
or to be provided, whether directly or indirectly related to either this CRADA or to any patent or other IP license or agreement
which implements this CRADA by its successors, assignees, or licensees.  The Collaborator shall not in any way state or imply
that this CRADA is an endorsement of any such product or service by the U.S. Government or any of its organizational units or
employees.  Collaborator issued press releases that reference or rely upon the work of PHS under this CRADA shall be made
available to PHS at least 7 days prior to publication for review and comment.
	
    13.11	 Exceptions to this
CRADA.  Any exceptions or modifications to this CRADA that are agreed to by the Parties prior to their execution of this
CRADA are set forth in Appendix C.
	
    13.12	 Reasonable
Consent.  Whenever a Party's consent or permission is required under this CRADA, such consent or permission shall not be
unreasonably withheld.



Page 9 of 18




	Article 14.  Duration of Agreement
	
    14.1	 Duration.  It is
mutually recognized that the duration of this project cannot be rigidly defined in advance, and that the contemplated time periods
for various phases of the RP are only good faith guidelines subject to adjustment by mutual agreement to fit circumstances as the
RP proceeds.  In no case will the term of this CRADA extend beyond the term indicated in the RP unless it is revised in
accordance with Article 13.6.
	
    14.2	 Survivability. 
The provisions of Articles 4.2, 5-8, 10.3-10.5, 11.1, 12.2-12.4, 13.1, 13.10 and 14.2 shall survive the termination of this
CRADA.



 


 


 


 


SIGNATURES BEGIN ON THE NEXT PAGE


 


Page 10 of 18




 
CRADA SIGNATURE PAGE





By executing this Agreement, each of the undersigned represents and confirms
that he or she is fully authorized to bind the identified entity to its terms.  Each of the undersigned expressly certified or
affirms that the contents of any statement made or reflected in this document are truthful and accurate.


	AGREED TO AND ACCEPTED BY:	 
	 	 
	For the National Cancer Institute:	 
	 	 
	 /s/ Alan S.
Rabson            
    

    Alan S. Rabson, M.D.
    

    Deputy Director, NCI	 7/14/99                                              
    

               Date
	 	 
	Mailing Address for Notices:National Cancer Institute

    Technology Development and Commercialization Branch

    Executive Plaza South, Room 450

    6120 Executive Boulevard

    Rockville, MD 20852


    	 
	 	 
	 For ASTA Medica, Inc.:	 
	 	 
	
    _______________________________

    Colin Stewart

    Chief Executive Officer, ASTA Medica, Inc.	 ______________________

                  
    Date

 
	
     	 
	
     	 
	Mailing Address for Notices:ASTA Medica, Inc.

    890 East Street

    Tewsksbury, MA 01876


    	 



 



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