Exhibit 10.2


 


[ **** ] indicates confidential portions have been
redacted and submitted separately pursuant to confidentiality request with the
Commission


 


LICENSE AGREEMENT


 


This License Agreement (“Agreement”) is between The
Rockefeller University, a New York nonprofit corporation, with offices located
at 1230 York Avenue, New York, NY 10021 (“Rockefeller”), and Celidex
Therapeutics, Inc., a corporation organized and existing under the laws of
Delaware (“Company”), having a place of business at 519 Route 173W, Bloomsbury,
New Jersey 08804.


 


This Agreement will become effective November 1,
2005 (“Effective Date”).


 


BACKGROUND


 


A.                                   Rockefeller owns certain
intellectual property developed by Dr. Michel Nussenzweig, an Investigator
of the Howard Hughes Medical Institute (“HHMI”) at Rockefeller, and Dr. Ralph
Steinman an investigator at Rockefeller, relating to the human [ **** ]
receptor (collectively, Dr. Nussenzweig and Dr. Steinman are the “Inventors”)
and,


 


B.                                     Rockefeller, by assignment from
the Inventors and HHMI owns applications for United States letters patent
listed in Attachment 1 to this Agreement and foreign counterparts relating to
the intellectual property as described above; and,


 


C.                                     Company desires to obtain a
license to use and exploit the Patent Rights (as defined below), in accordance
with a Development Plan to be provided (“Development Plan”); and,


 


D.                                    Rockefeller has determined that
the exploitation of Patent Rights is in the best interest of Rockefeller and is
consistent with its educational and research missions and goals; and,


 


NOW, THEREFORE, in consideration of the promises and
covenants contained in this Agreement and intending to be legally bound, the
parties agree as follows:


 


1.                                      DEFINITIONS


 


1.1                                 Affiliate means, any legal
entity directly or indirectly controlling, controlled by or under common
control with Company.  For purposes of
this Agreement, “control” means the direct or indirect ownership of more than
fifty percent (50%) of the outstanding voting securities of a legal entity, or the
right to receive more than fifty percent (50%) of the profits or earnings of a
legal entity, or the right to control the policy decisions of a legal entity.


 


1.2                                 Calendar Quarter means each
three-month period, or any portion thereof (if applicable), beginning on January 1,
April 1, July 1 and October 1 of each calendar year.


 

















 


1.3                                 Commercially Reasonable Efforts
means, with respect to a Licensed Product, efforts and resources similar to
those employed by Company to develop, manufacture or market a product of
similar market potential at a similar stage in its product life, taking into
account for example the establishment of the Licensed Product in the
marketplace, the competitiveness of alternative products, the likely
proprietary position of the Licensed Product, the likelihood of regulatory
approval for the Licensed Product, the potential profitability of the Licensed
Product and Company’s resources available. 
Commercially Reasonable Efforts shall be determined on a
market-by-market basis for each Licensed Product.


 


1.4                                 Development Plan means a plan
for the development and/or marketing of the Patent Rights, Technical
Information, and Biological Materials that demonstrates Company’s capability to
bring the Patent Rights, Technical Information, and Biological Materials to
practical application.  Such Development
Plan, as appropriate, shall include:


 


1.4.1                        development
activities to be undertaken, including proposed dates of completion of all
major milestones to develop and commercialize Licensed Products;


 


1.4.2                        a list of
regulatory approvals anticipated to be required for commercial launch of such
Licensed Products, including the nature of submissions and government agencies
involved in pre-market clearance;


 


1.4.3                        a list of
current competitors of Company with respect to the development of
antibody-based therapeutic products, including, if known, competitors’ plans
for further development of competing technologies;


 


1.4.4                        anticipated
date of first sale of Licensed Products.


 


1.5                                 Fair Market Value means the cash
consideration which Company or its sublicensee would realize from an
unaffiliated, unrelated buyer in an arm’s length sale of an identical item sold
in the same quantity and at the same time and place of the transaction.


 


1.6                                 Field of Use means use of
Licensed Products and Patent Rights for diagnostic and/or therapeutic purposes
in humans.


 


1.7                                 Improvements means Biological
Materials and Technical Information that are described and claimed in the
Patent Rights and that are developed in the laboratory of Dr. Steinman
during the sponsorship of research by Company covered by a separate agreement,
if any.


 


1.8                                 “Net Sales” shall mean [ **** ].


 


1.9                                 Sale means any bona fide
transaction for which consideration is received from a third party, other than
an Affiliate or sublicensee of Company, for the sale, use, lease, transfer or
other disposition of Licensed Product(s). 
A Sale of Licensed Product(s) shall be deemed completed at the time
Company or its Affiliate or sublicensee invoices, ships, or receives payment
for such Licensed Product(s), whichever occurs first.  A “Sale” shall not include transfers or
dispositions of Licensed Products for charitable, promotional, pre-clinical,
clinical, regulatory or governmental purposes.


 


2

















 


1.10                           Biological Materials means all
biological materials listed on Attachment 2 relating to the [ **** ] Antigen
that have been generated or developed by Rockefeller prior to the Effective
Date of the License Agreement and any materials within Improvements, which
shall, from time to time be added to Attachment 2.


 


1.11                           Licensed Product(s) means
products which are made, made for, used or sold by Company and any Affiliate or
sublicensees and which:  (1) in the
absence of this Agreement would infringe at least one issued claim of Patent
Rights or (2) use a process or machine covered by an issued claim of
Patent Rights or (3) incorporate, at least in part, any Biological
Materials or have been made, made for, used or sold by Company making use of
Technical Information.


 


1.12                           Patent Rights means all patents
issuing from those patent applications listed in Attachment I, and their
foreign counterparts and extensions, including continuations, divisionals,
continuations-in-part to the extent that the claims are directed to subject
matter described in the above-referenced patent applications and are entitled
to the priority date of the patent applications listed in Attachment 1, and
re-issue applications.


 


1.13                           Technical Information means
know-how, procedures, techniques, and the like known to the Inventors prior to
the Effective Date of this Agreement, or later developed under a sponsored
research or collaboration agreement between the parties, if any, which are
reasonably required or necessary to use the Patent Rights.  For clarification purposes, Technical
Information shall not mean information that is in the public domain.


 


2.                                      LICENSE
GRANT


 


2.1                                 Rockefeller grants to Company
for the term of this Agreement, in each case with the right to sublicense, (i) an
exclusive (subject only to Section 2.2), worldwide license under
the-Patent Rights to research, develop, make, have made, use, import, sell, and
offer for sale Licensed Products in the Field of Use, (ii) an exclusive,
worldwide license under the Biological Materials and Technical Information to
develop, make, have made, use, import, sell, and offer for sale Licensed
Products in the Field of Use, and (iii) a non-exclusive, worldwide license
under the Biological Materials and Technical Information, to research Licensed
Products in the Field of Use. No other rights or licenses are granted.


 


2.2                                 This license grant for Patent
Rights is exclusive except that Rockefeller may use and permit other nonprofit
organizations to use the Patent Rights for educational and research
purposes.  Further, Rockefeller may use
and grant to other non-profit organizations a non-exclusive license, without
the right to sublicense, to use the Technical Information and Biological
Materials solely for internal research purposes.  In addition, Company acknowledges that
Rockefeller has granted HHMI a paid-up, non-exclusive, irrevocable license to
use the Patent Rights, Biological Materials, and Technical Information for HHMI’s
research purposes, but with no right to sublicense.


 


2.3                                 Company acknowledges that
pursuant to Public Laws 96-517, 97-256 and 98-620, codified at 35 U.S.C.
200-212, the United States government retains certain rights in intellectual
property funded in whole or part under any contract, grant or similar agreement
with a Federal agency.  Pursuant to these
laws, the government may impose certain requirements regarding such 


 


3

















 


intellectual
property, including but not limited to the requirement that products resulting
from such intellectual property sold in the United States must be substantially
manufactured in the United States.  This
license grant is expressly subject to all applicable United States government
rights as provided in the above-mentioned laws and any regulations issued under
those laws, as those laws or regulations may be amended from time to time.


 


2.4                                 The right to sublicense granted
to Company under this Agreement is subject to the following conditions:


 


2.4.1                        In each
such sublicense, Company must provide that the sublicensee shall not further
sublicense without the prior written consent of Rockefeller, which consent
shall not be unreasonably withheld, and must require that the sublicensee is
subject to the terms and conditions of the license granted to Company under
this Agreement, including, without limitation, each sublicensee’s undertaking
of an indemnification obligation identical to that of Section 8.2 below,
except to change “Company” where it appears to the name of the relevant
sublicensee, and an insurance undertaking identical to that of Section 8.3
below, except to change “Company” where it appears to the name of the relevant
sublicensee, and the amount of insurance may be adjusted with Rockefeller’s
written consent.


 


2.4.2                        Within
thirty (30) days after Company enters into any sublicense, Company must send to
Rockefeller a complete copy of the sublicense, written in the English
language.  Rockefeller’s receipt of the
sublicense shall not constitute an approval of the sublicense or a waiver of any
of Rockefeller’s rights or Company’s obligations under this Agreement.


 


2.4.3                        If Company
enters bankruptcy proceedings, voluntarily or involuntarily, all payments then
or thereafter due to Company from its sublicensees under this Agreement shall
upon notice from Rockefeller to Company and any such sublicensee become owed
directly to Rockefeller for the account of Company, except to the extent that
the amount of such payments exceed the amounts owed by Company to Rockefeller.


 


2.4.4                        Even if
Company enters into sublicenses, Company remains primarily liable to
Rockefeller for all of Company’s duties and obligations contained in this
Agreement, and any act or omission of a sublicensee which would be a breach of
this Agreement if performed by Company shall be deemed to be a breach by
Company of this Agreement.


 


2.5                                 The parties acknowledge that
parallel and/or complimentary work using Patent Rights, Biological Materials
and Technical Information maybe performed under a grant from the Foundation for
the National Institutes of Health (“FNIH”) Grand Challenges in Global Health
Initiative.  This grant requires that
innovations, products, and information are owned and managed for the purpose of
facilitating (i) the access to affordable health solutions for the benefit
of people most in need within the developing world, and (ii) the broad
availability of data and information to the scientific community.  Company will cooperate with Rockefeller to
achieve those goals if necessary. Company agrees to negotiate in good faith to
grant the rights to use the Patent Rights, Biological Materials and Technical
Information upon commercially reasonable terms for the benefit of the
developing world to facilitate access to the FNIH-supported inventions arising
from the project consistent with FNIH’s charitable objective.


 


4

















 


3.                                      FEES,
ROYALTIES, AND MILESTONES


 


3.1                                 LICENSE FEES, ROYALTIES, AND
MILESTONES


 


3.1.1                        In partial
consideration of the licenses granted to Company, Company must pay to
Rockefeller a non-refundable license initiation fee of [ **** ].


 


3.1.2                        In further
consideration of the licenses granted to Company, Company must pay to
Rockefeller within [ **** ] of the issuance by the United States Patent and
Trademark Office of the first patent included within the Patent Rights, a
non-refundable license fee of [ **** ].


 


3.1.3                        In further
consideration of the licenses granted to Company, Company must pay to
Rockefeller a royalty on aggregate annual worldwide Net Sales of all antibody-based
Licensed Products sold by Company, its sublicensees its agents, employees
and/or independent contractors, including any distributors, according to the
following schedule:


 


	
   

  	
   

  	
  Annual Net Sales

  	
   

  	
  Royalty Rate

  	
   

  
	
  Portion of Annual Net Sales

  	
   

  	
  [****]

  	
   

  	
  [****]

  	
   

  
	
  Portion of Annual Net Sales

  	
   

  	
  [****]

  	
   

  	
  [****]

  	
   

  
	
  Portion of Annual Net Sales

  	
   

  	
  [****]

  	
   

  	
  [****]

  	
   

  



 


3.1.4                        In further
consideration of the licenses granted to Company, Company must pay to
Rockefeller a royalty on annual worldwide Net Sales, on a product-by-product
basis, of all non-antibody based Licensed Products sold by Company, its
sublicensees, its agents, employees and/or independent contractors, including
any distributors, according to the following schedule:


 


	
   

  	
   

  	
  Annual Net Sales

  	
   

  	
  Royalty Rate

  	
   

  
	
  Portion of Annual Net Sales

  	
   

  	
  [****]

  	
   

  	
  [****]

  	
   

  
	
  Portion of Annual Net Sales

  	
   

  	
  [****]

  	
   

  	
  [****]

  	
   

  



 


3.1.5                        Subject to
Section 3.1.6, if a Licensed Product is an antibody, antibody fragment, or
part thereof, and Company is required to pay royalties thereon to a third
party, these royalty rates will be reduced subject to the following
conditions:  Company will use
commercially reasonable efforts to have the third party royalties reduced by
the same proportion Rockefeller rate is reduced, and in no event will the
royalty rate payable to Rockefeller be reduced below [ **** ]. For the
avoidance of doubt, “commercially reasonable efforts”, as used in this Section 3.1.5,
shall be deemed not to require any payment of money or other financial
consideration by Company to any third party.


 


3.1.6                        Further,
in the event that at any time after the first Sale of a Licensed Product in a
country, the sale of such Licensed Products is not covered by an issued claim
within the Patent Rights in such country (such time period, the “ Royalty
Uncovered Period”), then during such Royalty Uncovered Period, Company shall
owe to Rockefeller a royalty of [ **** ] on Net Sales of the Licensed Product
in such country rather than the amounts set forth in Section 3.1.3 and Section 3.1.4,
as applicable; provided, however, that in the event a claim in a Patent


 


5

















 


Right later issues which covers the sale of
such Licensed Product in such country, then the royalties owed on Net Sales of
such Licensed Product in such country pursuant to Section 3.1.3 and Section 3.1.4,
as applicable, shall commence again as of the date of such claim issuance in
such country.


 


3.1.7                        Company
must pay Rockefeller a percentage of any sublicense initiation fee or any other
non-royalty sublicensee payments (other than milestone payments in amounts
which correspond to the amounts payable by Company to Rockefeller pursuant to Section 3.1.8)
received by Company from sublicensees of Patent Rights, Biological Materials
and Technical Information, to the extent that such payments relate to Licensed
Products, including:


 


3.1.7.1                                       [ **** ]; and


 


3.1.7.2                                       [ **** ]; and


 


3.1.7.3                                       [ **** ]; and


 


3.1.7.4                                       [ **** ]; equity
payable to Rockefeller hereunder will be distributed in accordance with HHMI’s
Statement of Policy Concerning the Receipt of Royalties in the Form of
Securities, presently available at httpi/www.hhmi.org/pdf5131902.pdf.


 


Sublicense fees are to be paid according to the
following schedule of years following the Effective Date:


 


	
  Up until one (1) year

  	
   

  	
  [****] of such payments

  	
   

  
	
  Between one (l) and three (3) years

  	
   

  	
  [****] of such payments

  	
   

  
	
  Three (3) years and thereafter

  	
   

  	
  [****] of such payments

  	
   

  



 


3.1.8                        Company
must pay to Rockefeller milestone payments upon achievement of each of the
following milestone events for each Licensed Product. Payments may be [ **** ],
in accordance with Section 3.1.7.4 above, by mutual agreement of
Rockefeller and Company.


 


	
  Milestone

  	
   

  	
  1st Licensed

  Product

  	
   

  	
  2nd Licensed

  Product

  	
   

  	
  3rd and Subsequent

  Licensed Products

  	
   

  
	
  Upon treating 1st patient in a Phase I Clinical Trial

  	
   

  	
  $[****]

  	
   

  	
  $[****]

  	
   

  	
  $[****]

  	
   

  
	
  Upon treating 1st patient in a Phase II Clinical Trial

  	
   

  	
  $[****]

  	
   

  	
  $[****]

  	
   

  	
  $[****]

  	
   

  
	
  Upon treating 1st patient in a Phase III Clinical Trial

  	
   

  	
  $[****]

  	
   

  	
  $[****]

  	
   

  	
  $[****]

  	
   

  
	
  Upon approval of a New Drug Application (NDA)

  	
   

  	
  $[****]

  	
   

  	
  $[****]

  	
   

  	
  $[****]

  	
   

  



 


3.1.9                        In the
event that the Licensed Product, at the time of achieving a milestone event as
described in the table above this Section 3.1.9, is not covered by an
issued claim within the Patent Rights in the United States (such time period,
the “Milestone Uncovered Period”), then during such Milestone Uncovered Period,
with respect to any Licensed Product, Company shall owe to Rockefeller the
milestone payments set forth in the table below in this Section 3.1.9 for
3rd and Subsequent Licensed Products, provided, however, that in the event a
claim in a Patent Right later issues which covers such Licensed Product in the
United States, then Company shall retroactively pay to Rockefeller the difference
between the previously paid milestone


 


6

















 


payment with respect to the applicable
Licensed Product and the milestone payments that would have been otherwise owed
with respect to such Licensed Product (that is, as a 1st Licensed
Product or a 2nd Licensed Product) pursuant to the table above this Section 3.1.9.


 


3.2                                 DILIGENCE AND MAINTENANCE FEES


 


3.2.1                        Company
must provide Rockefeller a Development Plan within ninety (90) days after the
Effective Date.


 


3.2.2                        Company,
its Affiliates and sublicensees must use Commercially Reasonable Efforts to
develop, commercialize, and market Licensed Products in accordance with the
Development Plan.


 


3.2.3                        Company
must provide Rockefeller six months after the Effective Date and semiannually
thereafter, written progress reports, setting forth in such detail as
Rockefeller may reasonably request, with regard to Company’s efforts to develop
and commercialize Licensed Products, including the activities by Company, its
subsidiaries, sublicensees, business partners and independent contractors, in
each case related thereto.  Company shall
also notify Rockefeller within thirty (30) days after the first Sale of each
Licensed Product.


 


3.2.4                        Subject to
Section 3.2.5, Company agrees to commit Company resources to the
development and commercialization of antibody-based Licensed Products in
amounts not less than the amounts set forth in the following schedule:


 


	
  Year One (1)

  	
   

  	
  $[****]

  	
   

  
	
  Year Two (2)

  	
   

  	
  $[****]

  	
   

  
	
  Year Three (3)

  	
   

  	
  $[****]

  	
   

  
	
  Year Four (4)

  	
   

  	
  $[****]

  	
   

  
	
  Year Five (5) and each year thereafter until submission by
  Company of an NDA

  	
   

  	
  $[****]

  	
   

  



 


3.2.5                        In the
event that Rockefeller is given an offer by an entity to license the Patent
Rights to develop and commercialize a product in the fields of allergy and
autoimmune diseases (excluding toxin-conjugate containing products) Company
will, within one hundred eighty (180) days, either (i) offer a sublicense
under the Patent Rights to such entity on reasonable commercial terms, (ii) present
an acceptable development plan to Rockefeller to pursue development of products
in the fields of allergy and autoimmune diseases, or (iii) return the
rights to develop products in the fields of allergy and autoimmune diseases to
Rockefeller.


 


3.2.6                        Company
recognizes that Rockefeller has an interest in providing for the development
and commercialization of therapeutic products that make use of the Patent
Rights.  Company therefore agrees that in
the event that Company makes the election described in clause (i) of Section 3.2.5
above, Company will consider in good faith any reasonable request by a third
party to enter into a sublicense under the Patent Rights or other business
relationship with Company relating to the development and/or commercialization
of products in the fields of allergy and autoimmune diseases that may require
the use of Patent Rights.  Company will


 


7

















 


negotiate in good faith to consummate such
sublicenses and/or business relationship(s) on terms that are commercially
reasonable.


 


3.3                                 REPORTS AND RECORDS


 


3.3.1                        Prior to
the first Sale of a Licensed Product, Company must deliver to Rockefeller
within forty-five (45) days after the end of each Calendar Year a report (“Development
Plan Progress Report”), setting forth the current stage of development of
Licensed Products, including, without limitation:


 


3.3.1.1                                       Date of
Development Plan Progress Report and time covered by such report.


 


3.3.1.2                                       Major research
and commercialization activities completed by Company and/or third parties
since the most recent Development Plan Progress Report.


 


3.3.1.3                                       Significant
research and development projects currently being performed by Company and/or
third parties at the time Development Plan Progress Report is submitted and
projected date of completion.


 


3.3.1.4                                       Significant
development activities to be undertaken by Company and/or third parties during
the next Calendar Year.


 


3.3.1.5                                       Significant
changes to the Development Plan and previous Development Plan Progress Reports
submitted to Rockefeller, including the reasons for the changes and future
variables that may cause additional changes.


 


3.3.1.6                                       Dates of all
reports made available to shareholders during the reporting period, including
10-K and 10-Q filings made to the United States Securities and Exchange
Commission.


 


3.3.2                        Subsequent
to the first Sale of a Licensed Product, Company must deliver to Rockefeller
within forty-five (45) days after the end of each Calendar Quarter a report,
certified by the chief financial officer of Company, setting forth the
calculation of the royalties due to Rockefeller for such Calendar Quarter,
including, without limitation:


 


3.3.2.1                                       Number of
Licensed Products involved in Sales, listed by country.


 


3.3.2.2                                       Gross
consideration for Sales of Licensed Products, including all amounts invoiced,
billed, or received.


 


3.3.2.3                                       Qualifying
costs, as defined in Section 1.8, listed by category of cost. 3.3.2.4 Net
Sales of Licensed Products listed by country.


 


8

















 


3.3.2.4                                       Royalties owed
to Rockefeller, listed by category, including without limitation earned,
sublicensee-derived, and minimum royalty categories.


 


3.3.3                        Company
must pay the royalties due under Sections 3.1 within forty-five (45) days following
the last day of the Calendar Quarter in which the royalties accrue.  Company must send with the royalties the
report described in Section 3.3.1.


 


3.3.4                        Company
must maintain and cause its sublicensees to maintain, complete and accurate
books and records which enable the royalties payable under this Agreement to be
verified.  The records for each Calendar
Quarter must be maintained for three years after the submission of each report
under Article 3.  Upon reasonable
prior notice to Company, Company must provide Rockefeller with access to all
books and records relating to the Sales of Licensed Products by Company and its
sublicensees to conduct a review or audit of those books and records. Access to
Company’s books and records must be available at least once each Calendar Year,
during normal business hours, and for each of three years after the expiration
or termination of this Agreement, solely, however, to the extent necessary for
the purpose of verifying the accuracy and basis of Company’s payments and
compliance with this Agreement.  Any such
inspection shall be at Rockefeller’s expense; provided that if such inspection
reveals that Company has underpaid royalties by five percent (5%) or more,
Company must pay the costs and expenses of Rockefeller and its accountants in
connection with such review or audit. 
The Company will provide Rockefeller with the Company’s Revenue
Recognition policy as approved by the Company’s Independent Registered Public
Accounting Firm to comply with all Securities and Exchange Commission (“SEC”)
and Financial Accounting Standards Board (“FASB”) guidelines.


 


3.4                                 CURRENCY, PLACE OF PAYMENT,
INTEREST


 


3.4.1                        All dollar
amounts referred to in this Agreement are expressed in United States dollars.
All payments to Rockefeller under this Agreement must be made in United States
dollars by check payable to “The Rockefeller University” or wire transfer to an
account provided by Rockefeller.  If
Company receives revenues from Sales of Licensed Products in currency other
than United States dollars, revenues shall be converted into United States
dollars at the conversion rate for the foreign currency as published in the
eastern edition of The Wall Street Journal as of the last business day of the
applicable Calendar Quarter.


 


3.4.2                        Amounts that
are not paid when due shall accrue interest from the due date until paid, at a
rate equal to one and one-half percent (1.5%) per month (or the maximum allowed
by law, if less).


 


4.                                      CONFIDENTIALITY


 


4.1                                 Confidential Information means
and includes (a) all technical information, inventions, developments,
discoveries, software, know-how, methods, techniques, formulae, data, processes
and other proprietary ideas, whether or not patentable or copyrightable, that
Rockefeller identifies as confidential or proprietary at the time it is
delivered or communicated to Company (“Rockefeller Confidential Information”)
and (b) all technical information, inventions,


 


9

















 


developments,
discoveries, software, know-how, methods, techniques, formulae, data, processes
and other proprietary ideas, whether or not patentable or copyrightable, that
Company identifies as confidential or proprietary at the time it is delivered
or communicated to Rockefeller, the Development Plan, the reports required in
Sections 3.2.3 and 3.3, the terms of this Agreement, the identities of any
sublicensees, and the terms of any sublicense agreement (the “Company
Confidential Information”).


 


4.2                                 Company agrees to maintain in
confidence and not to disclose to any third party any Rockefeller Confidential
Information.  Company agrees to ensure
that its employees have access to Rockefeller Confidential Information only on
a need-to-know basis and are obligated in writing to abide by Company’s
obligations under this Agreement. 
Rockefeller shall not be obligated to accept any confidential
information from Company except for the Company Confidential Information.  Rockefeller shall use best efforts not to
disclose Company Confidential Information to any third party and shall disclose
Company Confidential Information only to those employees and third parties that
have a need to know such Company Confidential Information, except Rockefeller
may share the terms of this Agreement or any sublicense agreement with HHMI in
confidence.  Rockefeller bears no
institutional responsibility for maintaining the confidentiality of any other
information of Company.


 


4.3                                 The obligations set forth in Section 4.2
shall not apply to:


 


4.3.1                        information
that is known to the receiving party or independently developed by the
receiving party prior to the time of disclosure, in each case, to the extent
evidenced by written records of the receiving party;


 


4.3.2                        information
disclosed to the receiving party by a third party that has a right to make such
disclosure;


 


4.3.3                        information
that becomes patented, published or otherwise part of the public domain as a
result of acts by the disclosing party or a third person obtaining such
information as a matter of right; or


 


4.3.4                        information
that is required to be disclosed by order of United States governmental
authority or a court of competent jurisdiction; provided that the receiving
party must use best efforts to obtain confidential treatment of such
information by the agency or court.


 


5.                                      TERM
AND TERMINATION


 


5.1                                 This Agreement, unless sooner
terminated as provided in this Agreement, terminates upon the later of (a) expiration
of the last to expire or become abandoned of the Patent Rights; or (b) ten
(10) years after the first commercial sale of the first Licensed Product,
whichever is later; provided, however, that notwithstanding clause (b) of
this Section 5.1, in no event shall the Agreement terminate more than five
(5) years after the expiration of the last to expire or become abandoned
of the Patent Rights.  Thereafter,
Company shall have a fully paid, worldwide, royalty-free, perpetual,
non-exclusive license under the Technical Information and Biological Materials
to make, use, sell, offer for sale and import Licensed Products.


 


10

















 


5.2                                 Company may, upon sixty (60)
days written notice to Rockefeller, terminate this Agreement by doing all of
the following:


 


5.2.1                        ceasing to
make, have made, use, import, sell and offer for sale all Licensed Products;
and


 


5.2.2                        terminating
all sublicenses, and causing all sublicensees to cease making, having made,
using, importing, selling and offering for sale all Licensed Products, or, at
the option of Rockefeller, assigning such sublicenses to Rockefeller; and


 


5.2.3                        paying all
monies owed to Rockefeller at the date of termination under this Agreement.


 


5.3                                 Rockefeller may terminate this
Agreement if any of the following occur:


 


5.3.1                        Company is
more than sixty (60) days late in paying to Rockefeller royalties, expenses, or
any other monies due under this Agreement and Company does not immediately pay
Rockefeller in full within fifteen (15) days of demand; or


 


5.3.2                        Company
enters bankruptcy proceedings, voluntarily or involuntarily; or


 


5.3.3                        Company
breaches this Agreement and does not cure the breach within sixty (60) days
after written notice of the breach.


 


5.4                                 If Company enters bankruptcy
proceedings, voluntarily or involuntarily, all duties of Rockefeller and all
rights (but not duties) of Company under this Agreement immediately terminate
without the necessity of any action being taken either by Rockefeller or by
Company.


 


5.5                                 Upon termination of this
Agreement pursuant to Sections 5.2 or 5.3 above, Company must, at Rockefeller’s
request, return all Rockefeller Confidential Information, Biological Materials
and Technical Information.


 


5.6                                 Company’s obligation to pay all
monies owed accruing under this Agreement shall survive termination of this
Agreement.  In addition, the provisions
of Articles 4 - Confidentiality, Article 5 - Term and Termination, Article 8
- Disclaimer of Warranties; Indemnification, Article 9 - Use of Names and Article 10
- Additional Provisions shall survive such termination.


 


6.                                      PATENT
MAINTENANCE AND REIMBURSEMENT


 


6.1                                 Company shall prosecute and
maintain the patent applications related to the Patent Rights, using a law firm
acceptable to Rockefeller, which acceptance shall not be unreasonably withheld,
conditioned or delayed. Rockefeller shall participate in all decisions related
to the Patent Rights.  Company will be
responsible for the payment of all charges and fees invoiced by such law firm.
In the event that the terms of Section 3.2.6 apply and a third party has a
license with respect to certain fields of Licensed Products, then the total
amount of such charges and fees shall be pro-rated between Company and such
third party.


 


11

















 


6.2                                 Company shall reimburse
Rockefeller for all patent and licensing expenses incurred before the Effective
Date of the Agreement within 30 days after the Effective Date of the Agreement,
which expenses are set forth on Attachment 3 of this Agreement.


 


7.                                      INFRINGEMENT
AND LITIGATION


 


7.1                                 Rockefeller and Company are
responsible for notifying each other promptly of any infringement of Patent
Rights which may come to their attention. 
Rockefeller and Company shall consult one another in a timely manner
concerning any appropriate response to the infringement.


 


7.2                                 Company may prosecute such
infringement at its own expense.  Company
must not settle or compromise any such suit in a manner that imposes any
obligations or restrictions on Rockefeller or grants any rights to the
Technical Information, Biological Materials or the Patent Rights, without
Rockefeller’s prior written permission, which permission shall not be
unreasonably withheld or delayed. 
Financial recoveries from any such litigation will first be applied to
reimburse Company for its litigation expenditures with additional recoveries
being paid to Company, subject to a royalty due Rockefeller based on the
provisions of Article 3.


 


7.3                                 Company’s rights under Section 7.2
are subject to the continuing right of Rockefeller to intervene at Rockefeller’s
own expense and join Company in any claim or suit for infringement of the
Patent Rights.  If Rockefeller joins in
such suit, any consideration received by Company in settlement of any claim or
suit shall be shared between Rockefeller and Company in proportion with their
share of the litigation expenses in such infringement action.


 


7.4                                 If Company fails to prosecute
any infringement, Rockefeller may prosecute such infringement at their own
expense.  In such event, financial
recoveries will be entirely retained by Rockefeller.


 


7.5                                 In any action to enforce any of
the Patent Rights, either party, at the request and expense of the other party
shall cooperate to the fullest extent reasonably possible.  This provision shall not be construed to
require either party to undertake any activities, including legal discovery, at
the request of any third party except as may be required by lawful process of a
court of competent jurisdiction.


 


8.                                      DISCLAIMER
OF WARRANTIES; INDEMNIFICATION


 


8.1                                 THE PATENT RIGHTS, TECHNICAL
INFORMATION, BIOLOGICAL MATERIALS, LICENSED PRODUCTS AND ALL OTHER TECHNOLOGY
LICENSED UNDER THIS AGREEMENT ARE PROVIDED ON AN “AS IS” BASIS AND ROCKEFELLER
MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT
THERETO. BY WAY OF EXAMPLE BUT NOT OF LIMITATION, ROCKEFELLER MAKES NO
REPRESENTATIONS OR WARRANTIES (I) OF COMMERCIAL UTILITY; (II) OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; OR (III) THAT THE USE
OF THE PATENT RIGHTS, TECHNICAL INFORMATION, BIOLOGICAL MATERIALS, LICENSED
PRODUCTS AND ALL TECHNOLOGY LICENSED UNDER THIS AGREEMENT WILL NOT INFRINGE ANY
PATENT, COPYRIGHT OR TRADEMARK OR OTHER PROPRIETARY RIGHTS OF 


 


12

















 


OTHERS. ROCKEFELLER
SHALL NOT BE LIABLE TO COMPANY, COMPANY’S SUCCESSORS OR ASSIGNS OR ANY THIRD
PARTY WITH RESPECT TO:  ANY CLAIM ARISING
FROM COMPANY’S USE OF THE PATENT RIGHTS, TECHNICAL INFORMATION, BIOLOGICAL
MATERIALS, LICENSED PRODUCTS AND ALL TECHNOLOGY LICENSED UNDER THIS AGREEMENT
OR FROM THE MANUFACTURE, USE OR SALE OF LICENSED PRODUCTS; OR ANY CLAIM FOR
LOSS OF PROFITS, LOSS OR INTERRUPTION OF BUSINESS, OR FOR INDIRECT, SPECIAL OR
CONSEQUENTIAL DAMAGES OF ANY KIND.


 


8.2                                 Rockefeller and HHMI, and their
respective trustees, officers, employees, and agents (collectively, “Indemnitees”),
will be indemnified, defended by counsel acceptable to Rockefeller and HHMI,
and held harmless by Company from and against any and all claims, liabilities,
costs, expenses, damages, deficiencies, losses, or obligations, of any kind or
nature (including, without limitation, reasonable attorneys’ fees and other
costs and expenses of defense)(collectively, “Claims”), based upon, arising out
of, or otherwise relating to:  (a) the
development, use, manufacture, promotion, sale or other disposition of any
Technical Information, Patent Rights, Biological Materials, or Licensed
Products by Company, its Affiliates, assignees, sublicensees, agents,
distributors, vendors or other third parties; (b) any breach by Company of
this Agreement or any breach by a sublicensee of a sublicense; and (c) the
enforcement by an Indemnitee of this Section, except, in each case, (i) with
respect to Rockefeller as Indemnitee(s), to the extent that such liability is
determined with finality by a court of competent jurisdiction to result from
the gross negligence or willful misconduct of Rockefeller, and (ii) with
respect to HHMI, or an HHMI trustee, officer, employee or agent (each an “HHMI
Indemnitee”), as Indemnitee, where such liability is determined with finality
by a court of competent jurisdiction to result solely from the gross negligence
or willful misconduct of HHMI Indemnitees. 
Without limiting the foregoing, Company must defend, indemnify and hold
harmless the Indemnitees from and against any Claims resulting from:


 


8.2.1                        any
product liability or other claim of any kind related to the use by a third
party of a Licensed Product that was manufactured, sold or otherwise disposed
by Company, its Affiliates, assignees, sublicensees, agents, distributors,
vendors or other third parties;


 


8.2.2                        a claim by
a third party that the Technical Information, Biological Materials or Patent
Rights or the design, composition, manufacture, use, sale or other disposition
of any Licensed Product infringes or violates any patent, copyright, trademark
or other intellectual property rights of such third party; and


 


8.2.3                        clinical
trials or studies conducted by or on behalf of Company, its Affiliates,
assignees, sublicensees, distributors, agents, vendors or other parties with
which it is in contract, relating to the Technical Information, Biological
Materials, Patent Rights or Licensed Products, including, without limitation,
any claim by or on behalf of a human subject of any such clinical trial or
study.


 


8.3                                 Company is not permitted to
settle or compromise any claim or action giving rise to Claims of Rockefeller
or its Indenmitees in a manner that imposes any restrictions or obligations on
Indemnitees or grants any rights to the Technical Information, Biological
Materials, Patent Rights or Licensed Products without Rockefeller’s prior
written consent, not to 


 


13

















 


be unreasonably
withheld or delayed.  If Company fails or
declines to assume the defense of any such claim or action within thirty (30)
days after notice thereof, Indemnitees may assume the defense of such claim or
action for the account and at the risk of Company, and any liabilities related
thereto shall be conclusively deemed a liability of Company.


 


8.3.1                        Company
agrees not to settle any Claim against an HHMI Indemnitee without HHMI’s
written consent, where (a) such settlement would include any admission of
liability on the part of any HHMI Indemnitee, (b) such settlement would
impose any restriction on any HHMI Indemnitee’s conduct of any of its
activities, or (c) such settlement would not include an unconditional
release of all HHMI Indemnitees from all liability for claims that are the
subject matter of the settled Claim.


 


8.3.2                        The
indemnification rights of Indemmitees contained herein are in addition to all
other rights which such Indemnitees may have at law or in equity or otherwise.


 


8.4                                 INSURANCE


 


8.4.1                        Company
shall procure and maintain a policy or policies of comprehensive general
liability insurance, including broad form and contractual liability, in a
minimum amount of $2,000,000 combined single limit per occurrence and in the
aggregate as respects personal injury, bodily injury and property damage
arising out of Company’s performance of this Agreement.


 


8.4.2                        Company
shall, upon commencement of clinical trials involving Licensed Products,
procure and maintain a policy or policies of product liability insurance in a
minimum amount of $5,000,000 combined single limit per occurrence and in the
aggregate as respects bodily injury and property damage arising out of Company’s
performance of this Agreement.


 


8.4.3                        The policy
or policies of insurance described in this Section 8.4 shall be issued by
an insurance carrier with an A.M. Best rating of “A” or better and shall
name Rockefeller and HHMI as additional insured with respect to Company’s
performance of this Agreement.  Upon the
written request of Rockefeller, Company shall provide Rockefeller with
certificates evidencing the insurance coverage required herein and all
subsequent renewals thereof.  Such
certificates shall provide that Company’s insurance carrier(s) notify
Rockefeller in writing at least 30 days prior to cancellation or material
change in coverage.


 


8.4.4                        Rockefeller
may periodically review the adequacy of the minimum limits of liability
insurance specified in this Section and Rockefeller reserves the right to
require Company to adjust the liability insurance coverages.  The specified minimum insurance amounts do
not constitute a limitation on Company’s obligation to indemnify Rockefeller
and HHMI under this Agreement.


 


9.                                      USE
OF NAMES


 


Except as may be required by law or as may be required
to be disclosed in Company’s filings with the United States Securities and
Exchange Commission, neither Company nor any sublicensee will use directly or
by implication the name of Rockefeller or HHMI, or the name of any member of
the faculty, staff, trustees, directors, officers and employees of Rockefeller
or 


 


14

















 


HHMI, without the prior written approval of
Rockefeller and/or HHMI and the individual involved. Except as may be required
by law, Rockefeller will not use directly or by implication the name of
Company, or the name of any member of the staff, trustees, directors, officers
and employees of Company, without the prior written approval of Company and the
individual involved.  Rockefeller and
Company agree to discuss in good faith the disclosure by Rockefeller that
Company is a licensee prior to such disclosure. 
Rockefeller and Company may repeat such disclosures of information for
which consent has previously been obtained, and information of a similar nature
to that which has been previously disclosed.


 


10.                               ADDITIONAL
PROVISIONS


 


10.1                           Nothing in this Agreement shall
be deemed to establish a relationship of principal and agent between
Rockefeller and Company, nor any of their agents or employees for any purpose
whatsoever, nor shall this Agreement be construed as creating any other form of
legal association or arrangement which would impose liability upon one party
for the act or failure to act of the other party.


 


10.2                           Company is not permitted to
assign this Agreement or any part of it, either directly or by merger or other
operation of law, without the prior written consent of Rockefeller; provided,
however, that Company may assign this Agreement, with notice to Rockefeller but
without Rockefeller’s consent, (a) to its Affiliates, and (b) to an
entity that acquires all or substantially all of the business or assets of
Company, whether by merger, reorganization, acquisition, sale or otherwise;
provided further, that any such Assignee set forth in clause (b) shall
affirm to Rockefeller in writing its assumption of all of the obligations of
Company hereunder prior to any such assignment. 
Any prohibited assignment of this Agreement or the rights hereunder
shall be null and void.  No assignment
shall relieve Company of responsibility for the performance of any accrued
obligations which it has prior to such assignment.


 


10.3                           A waiver by either party of a
breach of any provision of this Agreement will not constitute a waiver of any
subsequent breach of that provision or a waiver of any breach of any other
provision of this Agreement.


 


10.4                           Notices, payments, statements,
reports and other communications under this Agreement shall be in writing and
shall be deemed to have been received as of the date sent if sent by public
courier (e.g. Federal Express) or by Express Mail, receipt requested, and
addressed as follows:


 


If for
Rockefeller:


 


The Rockefeller University


Office of Technology Transfer


502 Founders Hall


1230 York Avenue


New York, NY 
10021-6399


Attention: 
Associate Vice President Spliceomix, Inc.


 


15

















 


If for Company:


 


Celldex Therapeutics, Inc.


519 Route 173W


Bloomsbury, NJ 
08804


Fax: 908-479-2401


Attn:  Chief
Financial Officer


 


Either party may change its official address upon
written notice to the other party.


 


10.5                           This Agreement shall be
construed and governed in accordance with the laws of the State of New York,
without giving effect to conflict of law provisions.  In the event that a party to this Agreement
perceives the existence of a dispute with the other party concerning any right
or duty provided for herein, the parties will, as soon as practicable, confer
in an attempt to resolve the dispute.  If
the parties are unable to resolve such dispute amicably, then the parties
hereby submit to the exclusive jurisdiction of and venue in the courts located
in the New York State with respect to any and all disputes concerning the
subject of this Agreement.


 


10.6                           Company shall not discriminate
against any employee or applicant for employment because of race, color, sex,
sexual or affectional preference, age, religion, national or ethnic origin,
handicap, or because he or she is a disabled veteran or a veteran of the
Vietnam Era.


 


10.7                           Company must comply with all
prevailing laws, rules and regulations that apply to its activities or
obligations under this Agreement. 
Without limiting the foregoing, it is understood that this Agreement may
be subject to United States laws and regulations controlling the export or
deemed export of technical data, computer software, laboratory prototypes,
materials, and other commodities, articles and information, including without
limitation the International Traffic in Arms Regulations (“ITAR”), the U.S.
Commerce Department’s Export Control Regulations (“EAR”), and U.S. trade
sanctions and embargoes administered by the Office of Foreign Assets Control (“OFAC”)
at the U.S. Department of the Treasury.  The
transfer of any of the foregoing to a foreign country, or to a foreign citizen
in the United States, may require a license from the relevant agency of the
United States Government and/or written assurances by Company that Company
shall not export any of the foregoing to certain foreign countries, or to
foreign citizens in the United States, without prior approval of such agency.
Rockefeller does not represent that a license is not required nor that, if
required, it will issue.


 


10.8                           HHMI is not a party to this
Agreement and has no liability to any licensee, any sublicensee, or user of any
technology covered by this Agreement, but HHMI is an intended third-party
beneficiary of this Agreement and certain of its provisions are for the benefit
of HHMI and are enforceable by HHMI in its own name.


 


Any modification of this Agreement must be in writing
and signed by an authorized representative of each party.


 


16

















 


IN WITNESS WHEREOF, the parties, intending to be legally
bound, have caused this Agreement to be executed by their duly authorized
representatives.


 


	
  THE
  ROCKEFELLER UNIVERSITY

  	
  CELLDEX
  THERAPEUTICS, INC.

  
	
   

  	
   

  
	
  By:

  	
  /s/ Frederick Bohen

  	
   

  	
  By:

  	
  /s/ Anthony S. Marucci

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
  Frederick M. Bohen

  	
   

  	
  Name:

  	
  Anthony S. Marucci

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
  Executive Vice President

  	
   

  	
  Title:

  	
  V.P. & Chief Financial Officer

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
  October 31st, 2005

  	
   

  	
  Date:

  	
  November 4, 2005

  	
   

  
								



 


17

















 


ATTACHMENT 1


 


Patent Rights


 


US Patent application 08/381,528, filed on Jan 31,
1995


 


US Patent application 09/586,704, filed on Jun 05,
2000 (CON of 08/381,528)


 


US Patent application 09/925,284, filed on Aug 09,
2001 (CIP of 09/586,704)


 


US Patent application 10/800,023, filed on March 12,
2004 (CIP of 09/925,284)


 


18

















 


ATTACHMENT 2 

Biological Materials


 


 


[ **** ]


 


19

















 


ATTACHMENT 3 

PATENT COSTS


 


Invoices received prior to 10/31/05 for US
applications - $91,287.55


 


20