Exhibit 10.32


 


Portions of this exhibit were omitted
and filed separately with the Secretary of the Commission pursuant to an
application for confidential treatment filed with the Commission pursuant to Rule 24b-2
under the Securities Exchange Act of 1934. Such portions are marked by a series
of asterisks.


 


 


RESEARCH,
DEVELOPMENT AND LICENSE AGREEMENT


 


BETWEEN


 


NEOSE
TECHNOLOGIES, INC.


 


AND


 


NOVO
NORDISK A/S


 


DATED
AS OF NOVEMBER 2, 2007


 


 






******   — Material has been omitted and filed
separately with the Commission.


 

















 


TABLE
OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  1.

  	
  DEFINITIONS

  	
  1

  
	
   

  	
   

  	
   

  
	
  2.

  	
  CONDUCT OF THE PROJECT AND COMMERCIALIZATION EFFORTS

  	
  8

  
	
   

  	
   

  	
   

  
	
  3.

  	
  FEES AND DEVELOPMENT PAYMENTS

  	
  10

  
	
   

  	
   

  	
   

  
	
  4.

  	
  PRODUCT PAYMENTS AND ROYALTIES

  	
  12

  
	
   

  	
   

  	
   

  
	
  5.

  	
  INTELLECTUAL PROPERTY GRANTS AND RIGHT OF NEGOTIATION

  	
  15

  
	
   

  	
   

  	
   

  
	
  6.

  	
  OWNERSHIP OF INTELLECTUAL PROPERTY

  	
  17

  
	
   

  	
   

  	
   

  
	
  7.

  	
  BLOCKING PATENTS

  	
  27

  
	
   

  	
   

  	
   

  
	
  8.

  	
  SUPPLY AGREEMENT

  	
  29

  
	
   

  	
   

  	
   

  
	
  9.

  	
  CONFIDENTIALITY

  	
  29

  
	
   

  	
   

  	
   

  
	
  10.

  	
  REPRESENTATIONS AND WARRANTIES

  	
  30

  
	
   

  	
   

  	
   

  
	
  11.

  	
  INDEMNIFICATIONS AND LIMITED LIABILITY

  	
  31

  
	
   

  	
   

  	
   

  
	
  12.

  	
  TERM AND TERMINATION

  	
  33

  
	
   

  	
   

  	
   

  
	
  13.

  	
  DISPUTE RESOLUTION

  	
  35

  
	
   

  	
   

  	
   

  
	
  14.

  	
  GOVERNMENT APPROVAL

  	
  35

  
	
   

  	
   

  	
   

  
	
  15.

  	
  COVENANTS.

  	
  36

  
	
   

  	
   

  	
   

  
	
  16.

  	
  MUTUAL COOPERATION

  	
  37

  
	
   

  	
   

  	
   

  
	
  17.

  	
  MISCELLANEOUS

  	
  37

  



 


 






******   — Material has been omitted and filed
separately with the Commission.


 

















 


RESEARCH,
DEVELOPMENT AND LICENSE AGREEMENT


 


This RESEARCH, DEVELOPMENT AND LICENSE AGREEMENT (“Agreement”), is dated as of November 2,
2007 (the “Effective Date”),
between Neose Technologies, Inc.,
a Delaware corporation (“Neose”),
and Novo Nordisk A/S, a Danish
corporation (“Novo”).


 


BACKGROUND


 


Novo and Neose are
parties to a Research, Development and License Agreement dated November 17,
2003, as amended by letter agreements dated December 18, 2003, October 12,
2004, and February 16, 2005, and by Amendment Number 4 dated February 21,
2006 (collectively, the “Amendments”),
to develop next generation recombinant coagulation Factor VIII and Factor IX
(as so amended, the “Original Agreement”).


 


Novo and Neose desire to
amend and replace the Original Agreement with two agreements to separate the
agreements of the parties with respect to each of Factor VIII and Factor IX, to
incorporate the terms of the Amendments as applicable in each case, and to make
further changes as the parties agree. 
This Agreement supersedes the Original Agreement with respect to
coagulation Factor VIII. 
Contemporaneously with the execution and delivery of this Agreement,
Neose and Novo have entered into a Research, Development and License Agreement,
superseding the Original Agreement with respect to Factor IX (the “Factor IX Agreement”).


 


Neose and Novo
have also entered into an Amended and Restated Research, Development and
License Agreement, dated October 31, 2006, pursuant to which Novo and
Neose are collaborating to develop a long-acting Factor VIIa compound (the “Factor VIIa Agreement”).


 


TERMS


 


NOW,
THEREFORE, in consideration of the premises and of the mutual
agreements and covenants contained in this Agreement, and intending to be
legally bound hereby, Novo and Neose agree as follows:


 


1.             DEFINITIONS.  Capitalized terms not otherwise defined shall
have the meaning set forth in this Section 1.


 


1.1          “Affiliate”
means, with respect to any Person, any other Person that directly or indirectly
controls, is controlled by, or is under common control with, such Person.  Without limiting the foregoing, a Person
shall be regarded as in control of another Person if it owns, or directly or
indirectly controls, more than fifty percent (50%) of the voting stock or other
ownership interest of the other Person.


 


1.2          “Blocking
Patent” means any Patent Rights claimed to be owned or Controlled by
a Third Party with respect to which Patent Rights an assertion is being made by
or on behalf of the Third Party that the use of the Neose Technology under this
Agreement infringes such Person’s Patent Rights.


 


1.3          “Calendar
Quarter” means any of the respective periods of three (3) consecutive
calendar months ending on March 31, June 30, September 30 or December 31
during the Term.


 






******   — Material has been omitted and filed
separately with the Commission.


 

















 


1.4          “Calendar
Year” shall mean the respective periods of twelve (12) consecutive
calendar months ending on December 31 during the Term.


 


1.5          “Carved Factor VIII Claims” shall mean any Potential
Carved Factor VIII Claim with respect to which the parties have filed, in
accordance with Section 6.4.2, a separate patent application.


 


1.6          “Commercially
Reasonable Efforts” shall mean efforts and resources normally used
by a Party in similar undertakings, taking into account the proprietary
position of the product or technology involved, the regulatory structure
involved, the profitability of such undertaking, the competitiveness of the
relevant marketplace, and other relevant factors.


 


1.7          “Commercial
Sale” means any sale of a New Product by Novo, its Affiliates, or
Sublicensees to a Person other than their respective Affiliates or Neose.


 


1.8          “Confidential
Information” shall mean any of the Disclosing Party’s proprietary or
confidential information, technical data, trade secrets or know-how, including,
but not limited to, research, product plans, products, the identity of the Novo
Materials, information relating to the Novo Materials, service plans, services,
customer lists and customers, markets, software, developments, inventions,
processes, formulas, technology, designs, drawings, engineering, marketing,
distribution and sales methods and systems, sales and profit figures, finances
and other business information disclosed to the Recipient by or on behalf of
the Disclosing Party, either directly or indirectly, in writing, orally or by
drawings or inspection of documents or other tangible property.


 


1.9          “Control” or
“Controlled” means possession of the ability of one party to grant
the licenses or sublicenses to the other party as provided for herein without
violating the terms of an agreement or other arrangement with a Third Party
existing before or after the Effective Date.


 


1.10        “Designated
Representative” means, in the case of Neose, its Vice President,
Business Development, or such other person designated by Neose in writing from
time to time to Novo, and, in the case of Novo, its Executive Vice President
and Chief Science Officer, or other such other person designated by Novo in
writing from time to time to Neose.


 


1.11        “Disclosing
Party” is used as defined in Section 9.1.


 


1.12        “Effective Date” means the date hereof.


 


1.13        “Factor VIIa Agreement” has the meaning set forth
in the Background section.


 


1.14        “FDA”
means the United States Food and Drug Administration and any successor agency.


 


1.15        “Field of
Use” means the development and commercial manufacture of New
Products for ******.


 


1.16        “GMPs”
shall mean current good manufacturing practices for the methods to be used in,
and the facilities and controls to be used for, the manufacture, processing, packing


 






******   — Material has been omitted and filed
separately with the Commission.


 


2

















 


and holding of biological products, all as set forth from time to time
by the FDA, including all amendments and supplements thereto throughout the
term of this Agreement.


 


1.17        “Improvements”
means any and all developments, discoveries, inventions, additions, amendments,
modifications, ideas, processes, methods, compositions, formulae, techniques,
information and data, whether or not patentable, conceived, developed or
reduced to practice, that improve or beneficially change, or enhance the
economic and technical attributes of, any Know-How or Patent Rights or any
process, device or composition.


 


1.18        “IND” means an application for an
Investigational Exemption for a New Drug filed with the FDA, or any comparable
filing made with a regulatory authority outside the United States.


 


1.19        “Joint
Improvements” means any and all Improvements made, conceived or
reduced to practice jointly by Neose and Novo in the conduct of the Original
Work Plan under the Original Agreement or the Work Plan under this Agreement,
whether patentable or not, other than Neose Improvements and Novo Improvements.


 


1.20        “Know-How”
means any and all formulae, procedures, processes, methods, designs, know-how,
show-how, trade secrets, discoveries, inventions (whether or not patentable),
patent applications, licenses, software and source code, programs, prototypes,
designs, discoveries, techniques, methods, ideas, concepts, data, engineering
and manufacturing information, electronic control circuits, specifications,
diagrams, drawings, schematics, blueprints and parts lists and other
proprietary information, rights and works of authorship, whether or not reduced
to writing.


 


1.21        “M1 Profile
for the New Factor VIII Product” means the parameters for candidate
selection required for PEG-F8 set forth on Exhibit 1.21, as amended
from time to time in accordance with Section 2.2.


 


1.22        “Mutual
Nondisclosure Agreement” means the Amended and Restated Mutual
Nondisclosure Agreement between the Parties dated November 25, 2002.


 


1.23        “Neose Exclusive Compounds” shall mean any and all
forms of ****** including, but not
limited to, with respect to either of the foregoing: full length proteins,
truncated proteins, fusion proteins, analogs, mutants, splice variants, and
conjugates with other molecular entities such as proteins, peptides, organic or
inorganic substances.


 


1.24        “Neose Improvements”
means any and all Improvements relating to the Neose Technology made,
conceived, or reduced to practice by (i) either Neose or Novo or both in
the conduct of the Original Work Plan under the Original Agreement or the Work
Plan under this Agreement, (ii) either Neose or Novo or both under this
Agreement, (iii) Novo in the practice of any Neose Technology under the
licenses granted to Novo in Section 5.1, or (iv) Novo in the
conduct of any activity using any Ownership Rights assigned to Novo pursuant to
Section 6.4.1, in each case of (i), (ii), (iii) or (iv), other
than the Novo Materials, the Novo Materials modified using the Neose Technology
and New Product. Specifically excluded from “Neose Improvements” are (1) formulations,
combinations and methods of treatment to the extent relating to Novo Materials,
the Novo Materials modified using the Neose Technology and New Products and (2) analytical
techniques and purification methods invented, developed or reduced


 






******   — Material has been omitted and filed
separately with the Commission.


 


3

















 


to practice solely by Novo that did not originate from or are not
derived from Neose (collectively, the “Techniques”).


 


1.25        “Neose Improvement Claim” shall mean any Neose
License Claim that relates to a Neose Improvement.


 


1.26        “Neose Intellectual Property” means Neose Technology
and the Neose Improvements.


 


1.27        “Neose License Claim” shall mean a claim in or
supportable by Patent Rights listed in Exhibit 1.27 (including any
Patent Rights claiming priority to such listed rights) and Controlled by Novo
encompassing within its scope: (i) any methods of ******; (ii) any compositions-of-matter or methods of
treatment specifically naming Neose Exclusive Compounds derived from or used in
the practice of such methods described in clause (i) above; (iii) any
compositions-of-matter or methods of treatment related to any compound other
than the Neose Exclusive Compounds, any and all forms of ******, or Novo Materials derived from or used in the
practice of such methods described in clause (i) above; wherein any claim
encompassed by clauses (i), (ii) or (iii) must also be encompassed
within the scope of a claim supportable by any Patent Right listed in the
listing of patents and patent applications dated October 31, 2006 which
had been certified by Neose and delivered to Novo prior to such date; or (iv) any
Neose Improvements made or reduced to practice by Novo.


 


1.28        “Neose
Patents” means (a) all Patent Rights relating to methods and
processes for glycosylation design and remodeling of proteins, peptides and
antibodies that are   Controlled by
Neose, including, but not limited to, (i) the Patent Rights listed in Exhibit 1.28,
(ii) the Patent Rights developed by Neose in the conduct of the Original
Work Plan during the term of the Original Agreement or in the conduct of the
Work Plan during the Term of this Agreement, and (iii) any later acquired
Patent Rights Controlled by Neose and used to develop any New Product; and (b) all
Patent Rights Controlled by Neose that would be infringed by the research,
development (including clinical development), manufacture, making, use,
marketing, promotion, sale, offer for sale, distribution, import and export of
New Products in the Territory.


 


1.29        “Neose
Project-Related Costs” means Neose’s costs of conducting the
Original Work Plan and the Work Plan, which shall be determined in accordance
with the Original Agreement or this Agreement, as applicable, and calculated as
follows:  (i) with respect to
personnel, at the rate of ******; and (ii) with respect to materials, at
the ******.


 


1.30        “Neose
Technology” means the Neose Patents and any Know-How Controlled by
Neose relating to methods and processes for the ******, including, without
limitation, its GlycoAdvance®, GlycoPEGylationTM and GlycoConjugationTM
technologies, and other ****** processes, and all Know-How resulting from work
conducted by Neose during the Term.


 


1.31        “Net Sales”
means proceeds from Commercial Sales of New Products by Novo, its Affiliates or
Sublicensees to Third Parties, after deducting (to the extent actually incurred
or reasonably estimated and accrued in accordance with Generally Accepted
Accounting Principles in the United States and to the extent not already
deducted in the amount invoiced): 


 






******   — Material has been omitted and filed
separately with the Commission.


 


4

















 


(i) reasonable trade, cash and quantity discounts or rebates
(other than price discounts granted at the time of sale), reasonable service
allowances and reasonable required agent’s commissions, if any, allowed or
paid, (ii) credits or allowances actually given or made for rejection or
return of previously sold products or for retroactive price reductions
(including Medicare, Medicaid, and/or discounts and similar types or rebates
and/or discounts), (iii) taxes, duties or other governmental charges
levied on or measured by the billing amount (excluding income and franchise
taxes), as adjusted for rebates and refunds, and (iv) charges actually
incurred for freight and insurance directly related to the distribution of New
Products (excluding amounts reimbursed by Third Party customers).  A “Commercial Sale of a New Product” is
deemed to occur when the invoice is issued, or if no invoice is issued, upon
the earlier of shipment or transfer of title in the New Product to a Third
Party.  In the event that New Product is
sold or distributed for use in combination with or as a component of another
product or products (a “Combination Product”), the calculation of Net Sales
from such Combination Product shall be determined as set forth below:


 


If all of the active
ingredient components of a Combination Product are also sold separately and in
identical strengths to those contained in the Combination Product, then the
following shall apply:  Net Sales shall
be calculated as set forth above on the basis of the gross invoice price of a
New Product containing the same weight of the licensed active ingredient
constituent sold independently [A], divided by the sum of the gross invoice
price of all of the active ingredient constituents sold independently [B + A],
multiplied by the gross invoice price of the Combination Product, as shown by
the following formula:


 


	
  Net Sales =

  	
  [A]

  	
  x

  	
   

  	
  [gross invoice price of
  the Combination Product]

  
	
   

  	
   

  	
  [B + A]

  	
   

  	
   

  	
   

  
						



 


The distribution costs
associated with any Combination Product will be allocated in the same
proportion among the licensed active ingredient components and all other active
ingredient components.


 


If the active ingredient
components of a Combination Product are not sole separately in identical
strengths to those contained in the Combination Product, then the parties agree
to negotiate in good faith the calculation of Net Sales with regard to such
Combination Product.


 


1.32        “New Product”
shall mean the following: (a) any of the Novo Materials modified using
either (i) the Neose Technology, (ii) any Neose Improvements, or (iii) any
combination of all or some of (i) and (ii) above, and (b) any
Novo Materials covered by any Carved Factor VIII Claims (except to the extent
such claims constitute Novo Improvements).


 


1.33        “Novo
Improvements” means any and all Improvements that are related to the
Novo Materials and/or any of the New Products made, conceived or reduced to
practice by Novo or Neose or both, other than Neose Improvements.


 


1.34        “Novo
Materials” means any and all forms of FVIII, including, but not
limited to, ******, such as ******.


 






******   — Material has been omitted and filed separately
with the Commission.


 


5

















 


1.35        “Novo
Technology” means the Patent Rights and Know-How Controlled by Novo
relating to the Novo Materials.


 


1.36        “Original Date” means November 17,
2003, the date of execution of the Original Agreement.


 


1.37        “Original Work Plan” means the “Work Plan,” as
defined in the Original Agreement, to the extent relating to Factor VIII.


 


1.38        “Ownership
Rights” means any and all right, title and interest under patent,
copyright, trade secret and trademark law, or any other intellectual property
or other law, in and to any Know-How, Patent Rights, or Improvements.


 


1.39        “Parties” means Neose and Novo,
collectively.


 


1.40        “Party” means Neose or Novo, as the
context requires, or each of Neose and Novo, individually.


 


1.41        “Patent
Rights” shall mean individually and collectively any and all patents
and/or patent applications and provisional applications, all inventions
disclosed therein, and any and all continuations, continuations-in-part,
continued prosecution applications, divisions, renewals, patents of addition,
reissues, confirmations, registrations, revalidations, revisions and
re-examinations thereof, utility models, petty patents, design registrations
and any and all patents issuing therefrom and any and all foreign counterparts
thereof and extensions of any of the foregoing including without limitation
extensions under the U.S. Patent Term Restoration Act, extensions under the
Japanese Patent Law, and Supplementary Protection Certificates (SPCs) according
to Counsel Regulation (EEC) No. 1768/92 and similar extensions for other
patents under any applicable law in any country of the world.


 


1.42        “Permit”
means any governmental or regulatory filing, submission, approval, permit or license
that is required by applicable law in any jurisdiction worldwide for clinical
trials, Commercial Sales or other use of any of the New Products.


 


1.43        “Person”
means an individual, corporation, partnership, trust, business trust,
association, joint stock company, joint venture, pool, syndicate, sole
proprietorship, unincorporated organization, government, governmental agency,
authority or instrumentality, or any other form of entity not specifically
listed in this Agreement.


 


1.44        “Potential Carved Factor VIII Claims”  shall mean ******.


 


1.45        “Product-Candidate”
means any new ****** product-candidate Controlled by Neose during the Term.


 


1.46        “Project”
means the project to be conducted hereunder by the Parties in accordance with
the Work Plan.


 


1.47        “Project
Manager” means the project managers described in Section 2.4.1.


 






******   — Material has been omitted and filed
separately with the Commission.


 


6

















 


1.48        “Reagents”
means the enzymes and sugar nucleotides required to use the Neose Technology in
the manufacture of New Products.


 


1.49        “Recipient”
is used as defined in Section 9.1.


 


1.50        “Regulated
Market” means any
jurisdiction worldwide that requires a Permit for clinical trials, Commercial
Sales or any other use of a New Product.


 


1.51        “Regulatory
Approval” means any marketing authorization (including
authorizations approving a Biologics License Application) required for a New
Product, exclusive of any pricing or third-party reimbursement approval.


 


1.52        “Required
Agreement” means any
agreement with a Sublicensee required under Section 5.1.3.


 


1.53        “******”******.


 


1.54        “Steering
Committee” means the steering committee established pursuant to Section 2.4.2,
or any successor group appointed by the Parties.


 


1.55        “Sublicensee” means a sublicensee of Novo’s
rights under Section 5.


 


1.56        “Supply
Agreement” means the supply agreement to be entered into between
Neose and Novo in accordance with Section 8.


 


1.57        “Territory”
means the world.


 


1.58        “Term”
means the term of this Agreement, which shall commence on the Effective Date
and shall expire or terminate as described in Section 12.


 


1.59        “Third Party”
means any Person other than Novo, Neose, or their respective Affiliates.


 


1.60        “Valid
Patent Claim” means a claim of an issued and unexpired patent
forming part of the Neose Patents or the Carved Factor VIII Claims that has not
been held revoked, unenforceable or invalid by a decision of a court or other
government agency of competent jurisdiction, or unappealable or unappealed
within the time allowed for appeal, or which has not been admitted to be
invalid or unenforceable through reissue or disclaimer or otherwise.  For the purposes of determining royalties due
and payment obligations under this Agreement, any claim being prosecuted in a
pending patent application included in the Neose Patents or the Carved Factor
VIII Claims shall be deemed a Valid Patent Claim, provided that such claim is
not pending, other than because of any action taken by Novo or an Affiliate of
Novo, ****** in which the subject matter of the claim is disclosed, after which
period it shall cease to be considered a Valid Patent Claim until the patent
issues.


 


1.61        “Work Plan”
means the Work Plan attached hereto as Exhibit 2.2, and, unless otherwise
specified, as amended from time to time in accordance with Section 2.2.


 






******   — Material has been omitted and filed
separately with the Commission.


 


7

















 


2.             CONDUCT OF THE
PROJECT AND COMMERCIALIZATION EFFORTS


 


2.1          Conduct.  Commencing
promptly after the Effective Date, Neose and Novo shall use Commercially
Reasonable Efforts to carry out their respective obligations under the Work
Plan.


 


2.2          Creation and
Modification of Work Plan.  Attached hereto as Exhibit 2.2
is the Work Plan, setting forth a project summary and timetable for the
research and development, scale-up and technology transfer activities to be
conducted under this Agreement.   Neose
shall be responsible for the development of validated, GMP processes for the
production of Reagents for use in the manufacture of New Products and protocols
for the use of the Reagents in the manufacture of New Products by Novo, all as
set forth in Exhibit 2.2. 
The Work Plan may be amended or modified from time to time, but only in
a writing signed by each Party’s Designated Representative and specifying the
Parties’ estimate of any additional Neose Project-Related Costs that will be
paid by Novo as a result of such amendment.


 


2.3          Funding.


 


2.3.1       Work Plan
Costs.  Through the date
hereof, Novo has funded the Neose Project-Related Costs under the Original Work
Plan, plus the cost of materials, and, from and after the Effective Date, Novo
will fund the Neose Project-Related Costs under the Work Plan, plus the cost of
materials.  If the Parties amend the Work
Plan in a manner that requires any new product or service to be provided by
Neose (e.g., a new Reagent,
expression system, scale up activity) which is not currently incorporated in
the Work Plan, the Parties shall agree in writing on any increase in the Neose
Project-Related Costs that are authorized in connection with such amendment.


 


2.3.2       Payment.  Novo will pay for the Neose Project-Related
Costs ******.  No earlier than thirty
(30) days before the beginning of each Calendar Quarter, Neose will invoice
Novo for such amount based on a budgeted estimate of Neose Project-Related
Costs for such Calendar Quarter.  Within
thirty (30) days after the end of each Calendar Quarter, Neose shall submit to
Novo a written report setting forth the actual Neose Project-Related Costs for
such Calendar Quarter, and shall, as applicable, pay to Novo any amounts paid
by Novo for such Calendar Quarter in excess of the actual Neose Project-Related
Costs shown in such report, or invoice Novo for any additional amounts owed
hereunder. Novo will pay all invoices delivered under this Section 2.3
within ****** after receipt.


 


2.4          Management of Project


 


2.4.1       Project
Managers.  Each of the Parties
shall appoint a Project Manager, who will be its primary contact regarding the
Project.  The Project Managers on the
date hereof are Henning Stennicke for Novo and David Hakes for Neose.  The Project Managers shall keep each other
reasonably informed of the progress under the Work Plan and shall be
responsible for maintaining appropriate records of the deliberations and
decisions of the Project Managers and the Steering Committee.  The Project Managers shall be responsible for
overseeing and directing the day-to-day activities conducted at their
respective sites in accordance with the Work Plan and suggesting changes for
consideration by the Steering Committee. 
A Party may


 






******   — Material has been omitted and filed
separately with the Commission.


 


8






 










 


change its Project Manager at any time, and from time to time,
effective upon notice to the other Party of such change.


 


2.4.2       Establishment
and Responsibilities of Steering Committee.  The
Parties have established a Steering Committee to monitor the progress of the
Work Plan, to evaluate and recommend to the Parties any proposed amendments or
modifications to the Work Plan and the costs thereof, to approve and monitor
compliance with any publication policy provided to it by Novo, and to carry out
all other obligations assigned to it under this Agreement or by the
Parties.  Each Party may designate a
co-chairperson and secretary of the Steering Committee.  As of the date hereof, the Steering Committee
consists of Søren Bjørn, Michael Shalmi and Steen Weber Jensen representing
Novo and David A. Zopf, M.D., Kathryn J. Gregory and Elliot Morales, Jr.
representing Neose.


 


2.4.3       Action by
Steering Committee and Dispute Resolution.  The Steering Committee shall consist of such
number of members and alternate members as the Parties may determine from time
to time.  Each Party shall appoint fifty
percent (50%) of the permanent and alternate members of the Steering
Committee.  The members of the Steering
Committee shall include members of senior management of each Party.  The members of the Steering Committee
representing a Party and present at a meeting shall have one vote,
collectively.  If the Steering Committee
cannot reach agreement on any matter, ****** shall be entitled to ******;
provided, however, that if the Steering Committee cannot reach agreement on any
matter involving a change in the scope of work to be conducted by ****** under
the Work Plan, the schedule of the work to be conducted by ****** under the
Work Plan, or the ******, such dispute shall resolved in accordance with Section 13.


 


2.4.4       Changes to
Steering Committee.  Each
Party may remove and replace its representatives on the Steering Committee at
any time, without cause, upon written notice to the other Party.  An alternate member designated by a Party
shall be entitled to participate in the absence of a permanent member
designated by such Party.  All references
to “members” in this Agreement refer to the then permanent members of
the Steering Committee and any alternate member acting in the place of a
permanent member.


 


2.4.5       Meetings.  Regular meetings of the Steering Committee
shall be scheduled by the Project Managers or the secretary of the Steering
Committee designated by either Party. 
Special meetings of the Steering Committee may be called by the Project
Managers or by any two or more members, at least one of whom represents each
Party.  Meetings may be in person or by
teleconference or videoconference, and notice of meetings may be by email.  Each Party will bear its own costs in
connection with the management of the Project and the Steering Committee.


 


2.4.6       No Waiver.  No action, nor any failure to act, by the
Steering Committee shall alter, amend, waive or otherwise affect the
obligations of the Parties under this Agreement.  The Parties may amend this Agreement only in
accordance with Section 17.6, and a Party may waive any of its
rights under this Agreement only in accordance with Section 17.9.


 


2.5          Cooperation. 
Throughout the Project, each Party shall cooperate with the other in the
conduct of the Work Plan, and will provide such information in its possession
or


 






******   — Material has been omitted and filed
separately with the Commission.


 


9

















 


under its Control to the other Party as is reasonably necessary for the
other Party to comply with and satisfy the requirements of any and all
international, national, state, local or other laws, treaties, rules,
procedures or regulations for purposes of this Agreement, or to carry out its
obligations under this Agreement.


 


2.6          Permits. 
Prior to the commencement of any clinical trials, Commercial Sales or
other use of any New Product in a Regulated Market, Novo shall obtain at its
expense all Permits required for such activity in the applicable
jurisdictions.  Novo shall submit all
applications for Permits for the New Products in the name of Novo or its
Affiliates.  Novo shall hold all such
Permits, if and when granted, in its name alone.  Neose, at Novo’s expense, shall provide
reasonable assistance and technical support to Novo in obtaining the Permits
for the New Products.  Novo shall pay all
expenses with respect to obtaining the Permits for the New Products including,
without limitation, the cost of clinical trials and preparation and prosecution
of permit applications.  Novo shall be
solely responsible for renewing any Permits at its expense.  Neose shall supply Novo, at Novo’s expense,
with Reagents for producing New Products under the terms and conditions of the
Supply Agreement.


 


2.7          Additional
Development and Commercialization Activities.  Except as set forth
in the Work Plan or the Supply Agreement, Neose shall not have any obligation
to perform any further research, development, technology transfer, technical
support, improvements, modifications, or other activities.  Novo shall use Commercially Reasonable
Efforts to obtain Regulatory Approvals for, and Commercial Sales of, each New
Product.


 


3.             FEES AND
DEVELOPMENT PAYMENTS


 


3.1          License Fee. 
In consideration of the licenses granted by Neose under this Agreement
and the original Factor VIIa Agreement, Novo paid Neose a one-time,
nonrefundable upfront fee of ******.


 


3.2          Milestone
Payments Relating to Development of the New Product.  
In consideration of the development efforts of Neose under the Original
Work Plan and the Work Plan, Novo has paid or shall pay Neose the amount of
each milestone payment described in this Section 3.2 with respect
to the development of the New Product. 
With respect to the milestone payments described in Sections 3.2.1
through 3.2.5, the Parties agree that Neose shall have earned the right to
receive each respective milestone payment, and Novo shall be obligated to pay
the milestone payment and shall have met its diligence obligations with respect
to the respective milestone, in each case, as a result of either (i) the
achievement of the milestone event prior to the occurrence of the corresponding
anniversary date or (ii) the occurrence, alone, of the corresponding
anniversary date.  With respect to the
milestone payments described in Sections 3.2.6 through 3.2.9, Neose
shall have earned the right to receive each respective milestone payment, and
Novo was or shall be obligated to pay the milestone payment, as a result of the
of the achievement of the milestone event.


 


3.2.1       ******, paid on ******.


 


3.2.2       ****** upon the earlier to occur of ****** of the ****** with
respect to the New Product or ******.


 






******   —
Material has been omitted and filed separately with the Commission.


 


10

















 


3.2.3         ****** upon the earlier of ******
of the ****** of the New Product ******
or the ****** anniversary of the achievement of the milestone
described in Section 3.2.2 above.


 


3.2.4         ****** upon earlier to occur of ****** of the ****** of
the New Product or the ****** anniversary of the
achievement of the milestone described in Section 3.2.3 above.


 


3.2.5         ****** upon the first to occur of the first ****** of the New Product or the ****** anniversary****** of
the achievement of the milestone described in Section 3.2.4 above.


 


3.2.6         ****** upon the ****** of
the New Product in ******.


 


3.2.7         ****** upon the ****** of
the New Product in ******.


 


3.2.8         ****** upon each ****** of
the New Product for any ****** which occurs after the ****** of the New Product, which amount shall be ******, to an amount mutually agreed upon by the Parties,
upon the reasonable request of Novo in the case of a New Product for an ******.


 


3.2.9         ****** upon each ****** of
the New Product in ****** for any ****** which occurs after the ****** of the New Product in ******, which amount shall be ******, to an amount mutually agreed upon by the Parties,
upon the reasonable request of Novo in the case of a New Product for ******.


 


3.3          Restriction
on Multiple Milestone Payments. 
The Parties acknowledge and agree that at anytime prior to the ******
for a New Product, the Steering Committee may decide to continue the
development of the New Product solely with a back-up candidate if a candidate
initially taken into development should ****** reasons, including, but not
limited to, ******, or the occurrence of ******.  In the event that the Steering Committee
makes such a decision, this Agreement shall be amended to reflect, among other things,
the resulting changes to the Work Plan and the Neose Project-Related Costs
mutually agreed upon by the Parties.  In
such event, Novo ****** be required to ****** each of the following milestone
payments:  (i) the milestone
payments set forth in Sections ****** through ****** with
respect to the New Product.


 


3.4          Coordination
with Factor VIIa Agreement and Factor IX Agreement.  The Parties agree that it may be appropriate
to adjust one or more of the anniversary dates set forth in Sections ******
through ****** as a result of ****** limitations (e.g., ******) that may be encountered by
Novo if the New Product and the product being developed under the Factor VIIa
Agreement or the Factor IX Agreement are scheduled to pass through the same
****** at the same time.  Novo may
request such an adjustment at any time, and from time to time, by providing
notice of the proposed adjustment to Neose. 
Promptly after receipt of such a notice, the Steering Committee shall
meet to evaluate the request.  Within
thirty (30) days after Novo provides such notice, the Steering Committee shall
provide a written recommendation to both Parties with respect to such
request.  Within fifteen (15) days after
receipt of any such recommendation, the Steering Committee shall meet to
discuss the recommendation and, if


 






******   — Material has been omitted and filed
separately with the Commission.


 


11

















 


mutually agreeable, to negotiate and propose to the Parties the terms
of amendment(s) to the Work Plan and this Agreement which would permit
Novo to continue developing the New Product and the ******, in a practical and
efficient manner, with the goal of minimizing the aggregate time to market for
the New Product and the ******.


 


4.             PRODUCT PAYMENTS
AND ROYALTIES


 


4.1          Royalties on Net Sales.  Novo will pay to Neose royalties as a
percentage of annual Net Sales of each New Product, on a Product by Product
basis, during the Term at the applicable rates set forth in this Section 4.1
and in accordance with this Section 4:


 


4.1.1         ****** of annual Net Sales of the New Product up to ******.


 


4.1.2         ****** of annual Net Sales of the New Product between ****** up to ******.


 


4.1.3         ****** of annual Net Sales of the New Product over ******.


 


4.2          Minimum Royalties.


 


4.2.1         Mandatory Minimum Royalties.  Commencing
with the first ****** of the ****** full Calendar Year following the First Commercial
Sale of each New Product, Novo will pay minimum royalties in respect of the New
Product for such Calendar Year and ******
during the Term, in the amounts set forth in this Section 4.2.1 and
in accordance with this Section 4:


 


4.2.1.1      For the ******
Calendar Year following the First Commercial Sale of the New Product:  ******.


 


4.2.1.2    For the ******
Calendar Year following the First Commercial Sale of the New Product:  ******.


 


4.2.1.3    For the ****** Calendar
Year following the First Commercial Sale of the New Product, and ****** thereafter:  ******.


 


All minimum royalty
payments made in accordance with this Section 4.2.1 shall be ****** against royalties payable under Section 4.1
in respect of the New Product in the same or any subsequent Calendar Quarter
during the same Calendar Year.


 


4.2.2         Optional Minimum Royalties.  If
the First Commercial Sale of the New Product has not occurred on or before the ****** anniversary of the achievement of the milestone
described in Section ****** (the “****** Milestone”), and Novo makes an election to extend this
Agreement with respect to the New Product pursuant to Section 13.2.2,
Novo will pay with respect to each New Product with respect to which it has
extended this Agreement, minimum royalties as follows for each year of such
extension:


 


4.2.2.1      On the ******
anniversary of the achievement of the ******
Milestone, ****** for a ******
extension for New Product.


 






******   —
Material has been omitted and filed separately with the Commission.


 


12

















 


4.2.2.2    On the ******
anniversary of the achievement of the ******
Milestone, ****** for an additional ******
extension for New Product.


 


4.2.2.3    On the ******
anniversary of the achievement of the ******
Milestone, ****** for an additional ****** extension
for New Product.


 


4.2.2.4    On the ******
anniversary of the achievement of the ******
Milestone, ****** for an additional ******
extension for New Product.


 


4.2.2.5    On the ******
anniversary of the achievement of the ******
Milestone, ****** for an additional ******
extension for New Product.


 


****** percent (******%)
of the minimum royalty payments made in accordance with this Section ******
shall be creditable against royalties payable under Section ******
and ****** in respect of the New Product in the same or any subsequent
Calendar Quarter; provided, however, that no royalty payment due to Neose under
Section ****** or ****** shall be reduced, as a result of
the application of the provisions included in this sentence, by more than
****** percent (******%) of the royalty payment that would have been payable by
Novo under Section ****** or ******, as the case may be,
without the application of this sentence.


 


4.3          Competitive
Product(s).  If a Competitive
Product (as defined below in this Section 4.3) reaches a ******
equal to or greater than ****** percent (******%) of the ****** for the New
Product marketed by Novo, then the royalties otherwise payable in accordance
with Section 4.1 with respect to such New Product, and the minimum
royalties otherwise payable in accordance with Section 4.2, with
respect to such New Product shall be ****** by the applicable percentage set
forth below:


 


	
  ****** of Competitive Product

  	
   

  	
  ******Royalty Rate Otherwise Payable

  
	
   

  	
   

  	
   

  
	
  More than ******

  	
   

  	
  ******

  
	
   

  	
   

  	
   

  
	
  More than ******

  	
   

  	
  ******

  
	
   

  	
   

  	
   

  
	
  More than ******

  	
   

  	
  ******

  
	
   

  	
   

  	
   

  
	
  More than ******

  	
   

  	
  ******

  



 


For purposes of this Section 4.3,
“Competitive Product” means any product marketed by a Third Party that is not a
Sublicensee of Novo, which product is a ****** Factor VIII with a ******
substantially equivalent to or better than the ****** of the New Product
marketed by Novo.


 


4.4          Royalty
Payments.  Novo shall make
royalty payments to Neose on a quarterly basis, within forty-five (45) days
after the end of each Calendar Quarter during the Term.  Royalty payments due under Section 4.1
shall commence, with respect to each New Product in each country, on the date
of first Commercial Sale in such country.


 


4.5          Currency
Conversion.  If any currency conversion from a foreign
currency into United States Dollars shall be required in connection with the
calculation of Net


 






******   — Material has been omitted and filed separately
with the Commission.


 


13

















 


Sales, such conversion shall be made using the average exchange rate
for the applicable Calendar Quarter, as reported by the Wall Street Journal.


 


4.6          Payment
Reports.  Within forty-five
(45) days after the close of each Calendar Quarter during the Term, Novo shall
furnish to Neose a written report showing in reasonably specific detail, on a
country-by-country basis for each New Product:


 


4.6.1         All Net Sales of the New Product during such quarter
expressed in United States Dollars.


 


4.6.2         The exchange rates used in determining Net Sales of
the New Product in United States Dollars in accordance with Section 4.5.


 


4.6.3         Royalties payable in United States Dollars based
upon such Net Sales of the New Product during such quarter.


 


4.7          Payment
Method.  Novo shall make all payments under this
Agreement in United States Dollars by bank wire transfer in immediately
available funds to Hudson United Bank, ABA # ******, Acct Name:  Neose Technologies, Inc.,            Acct # ******, or to such other account as
Neose shall designate to Novo in writing before such payment is due.


 


4.8          Records;
Audits.  Novo shall, and shall cause its Affiliates
and Sublicensees, if any, to keep complete, true, and accurate books of account
and records in connection with the production and Commercial Sales of New
Products in sufficient detail to permit accurate determination of all figures
necessary for verification of payments required to be made by Novo under this
Agreement.  Novo shall, and shall cause
its Affiliates and Sublicensees, if any, to, maintain such records for at least
****** years following the end of the quarter to which such books and records
pertain.  Neose shall have the right, at
its expense, through a certified public accounting firm reasonably acceptable
to Novo, to examine the records required to be maintained by Novo, its
Affiliates and Sublicensees under this Section 4.8 upon reasonable
notice and during regular business hours prior to the termination or expiration
of this Agreement and for ****** years thereafter for the purpose of verifying
the reports delivered pursuant to Section 4.6, provided that such
examination shall not take place more often than once a year.  Novo may require such certified public
accounting firm to sign a confidential disclosure agreement prior to permitting
such certified public accounting firm to have access to its books, records or
facilities.  Such accounting firm shall
report to Neose only whether or not the reports submitted by Novo are accurate
for the period covered and the details concerning any identified
discrepancies.  If any such audit
uncovers an underpayment, Novo shall promptly pay to Neose the amount of such
underpayment.  If any such underpayment
exceeds ****** of the amount due, Novo shall pay the entire expense of such
audit within ****** after invoice.


 


4.9          Taxes.  Novo
may deduct the amount of any taxes imposed on Neose which are required to be
withheld or collected by Novo or its Sublicensees under the laws of any country
from amounts owing to Neose hereunder to the extent Novo, its Affiliates or
Sublicensees pay such withholding taxes to the appropriate governmental
authority on behalf of Neose and promptly deliver to Neose a receipt or other
proof of payment of such taxes.


 






******   — Material has been omitted and filed
separately with the Commission.


 


14

















 


5.             INTELLECTUAL
PROPERTY GRANTS AND RIGHT OF NEGOTIATION


 


5.1          Neose
Technology.  Subject to the terms and conditions of this
Agreement, Neose hereby grants, and agrees to grant, to Novo, as of the
Original Date , the following rights and licenses:


 


5.1.1       Exclusive
License.  As of the Original Date, Neose hereby grants,
and agrees to grant, to Novo an exclusive (even as to Neose), royalty-bearing
license in the Field of Use under the Neose Intellectual Property used or
required to be used in the Field of Use during the Term, (i) to conduct
research, sample, develop (including clinical development), manufacture, make,
use, market, promote, sell, offer for sale, have sold, distribute, import and
export New Products in the Territory, and (ii) to use the Reagents in the
Territory solely for the purpose of making New Products.  Such license does not permit Novo (x) to
practice or use the Neose Intellectual Property outside the Field of Use or (y) to
sublicense any of its rights without the prior written approval of Neose,
except as provided in Section 5.1.2.


 


5.1.2       Limited
Sublicense Rights.  Novo shall
be entitled to grant full sublicenses to its Affiliates and limited sublicenses
to its distribution, marketing and/or sales partners, in each case, in
compliance with the provisions of this Section 5.1.2 and Section 5.1.3.  In any sublicense granted under this Section 5.1.2
to a Third Party that is not an Affiliate of Novo, Novo may grant the
Sublicensee only the following rights: 
to market, promote, sell, offer for sale, have sold, distribute, import
and export New Products for Novo.  Novo
shall not be entitled to disclose any Confidential Information of Neose to a
non-Affiliate Sublicensee under a sublicense permitted to be granted under this
Section 5.1.2.  Novo shall
include in each sublicense granted under this Section 5.1.2 all of
the terms and conditions necessary to ensure Novo’s compliance with this
Agreement, and the provisions of Section 5.1.4 shall apply to each
sublicense granted under this Section 5.1.2.


 


5.1.3       Required
Agreement for Certain Proposed Sublicensees.   Prior to entering
into discussions with any proposed sublicensee, Novo shall identify the
proposed sublicensee to Neose.  If the
proposed sublicensee is not an Affiliate of Novo, Novo shall obtain the
approval of Neose prior to entering into such discussions and shall obtain the
proposed sublicensee’s execution and delivery to Neose of a non-disclosure and
non-use agreement substantially in the form attached hereto as Exhibit 5.1.3.  If the proposed sublicensee is an Affiliate
of Novo, Novo may enter into the proposed sublicense without obtaining the
approval of Neose if:  (i) the
sublicense between Novo and the Sublicensee/Affiliate provides that Neose is a
third-party beneficiary of the Sublicense, and (ii) Neose receives an
original fully executed copy of the sublicense between Novo and the
Sublicensee/Affiliate within five (5) business days after its execution.


 


5.1.4       Liability.  Novo
shall remain primarily liable to Neose for the performance by each Affiliate
and Sublicensee in accordance with the terms and conditions of this Agreement, and
each sublicense shall terminate upon the termination of this Agreement or any
breach by the Sublicensee of the Required Agreement between Neose and the
Sublicensee, if any.


 






******   —
Material has been omitted and filed separately with the Commission.


 


15

















 


5.1.5       Reservation
of Rights.  Neose hereby
reserves to itself all right, title and interest in and to the Neose
Intellectual Property not expressly granted in Section 5.1.  Without limiting the foregoing, in no event
shall this Agreement be construed to prohibit Neose from engaging in any of the
following activities: (a) practicing the processes, methods and Know-How
of the Neose Intellectual Property outside of the Field of Use including,
without limitation, proteins that may be considered competitive with any of the
New Products, subject, however, to Novo’s rights with respect to
Product-Candidates under Section 5.3; (b) developing, making, using
or selling proteins or Reagents, whether in conjunction with the Neose
Intellectual Property or otherwise, outside of the Field of Use; or (c) entering
into and performing agreements with Third Parties regarding any of the
foregoing including, without limitation, research agreements, development
agreements and licensing agreements.


 


5.1.6         Carved Factor VIII Claim Licenses.  Neose
hereby grants, and agrees to grant, to Novo a worldwide, exclusive (even as to
Neose), and royalty-bearing (subject only to the payment of royalties in
accordance with Section 4) license, with the right to sublicense, to any
Carved Factor VIII Claims that do not constitute Novo Improvements in the Field
of Use for the Term of this Agreement. 
The royalties due with regard to the foregoing license shall be
determined in accordance with Section 4 of this Agreement.  In addition to the foregoing, Neose hereby
grants, and agrees to grant, to Novo a worldwide, exclusive (even as to Neose),
and royalty-free license, with the right to sublicense, to any Carved Factor
VIII Claims that constitute Novo Improvements in the Field of Use for the Term
of this Agreement.


 


5.2          Licenses to
Neose.


 


5.2.1         Novo Technology.  Subject to the terms and conditions of this
Agreement, and solely to the extent necessary to enable Neose to carry out its
obligations under the Work Plan, Novo hereby grants to Neose, for the term of
the Work Plan, a non-exclusive, royalty-free, license under the Novo Technology
to use such Novo Technology for the sole purpose of carrying out its
obligations under the Work Plan.  Novo shall
retain at all times all of its rights, title and interest to the Novo
Technology.


 


5.2.2         Neose Exclusive Compounds.  Novo
hereby grants, and agrees to grant, to Neose, a worldwide, exclusive (even as
to Novo) as to Neose Exclusive Compounds and non-exclusive as to all other
compounds, perpetual, irrevocable and royalty free license, with the right to
sublicense, to Neose License Claims as defined in clauses (i)-(iii) of Section 1.27,
for any and all purposes, except in connection with any and all forms of
insulin or Novo Materials. Novo hereby grants, and agrees to grant, to Neose, a
worldwide, exclusive (even as to Novo), perpetual, irrevocable and royalty free
license, with the right to sublicense, to Neose License Claims as defined in
clause (iv) of Section 1.27, for any and all purposes.


 


5.3          Option and
Right of First Negotiation


 


5.3.1       Option.  Neose hereby grants to Novo an option to
negotiate a worldwide license under the Neose Technology to conduct research,
sample, develop (including clinical development), manufacture, make, use,
market, promote, sell, offer for sale, have sold, distribute, import and export
each and every Product-Candidate.  The
option granted under this 


 






******   —
Material has been omitted and filed separately with the Commission.


 


16

















 


Section 5.3.1 shall be
exercisable by Novo, from time to time during the Term with respect to each
Product-Candidate, within ****** after Novo receives notice of the
Product-Candidate from Neose.


 


5.3.2       Negotiations.  If Novo duly exercises its option under Section 5.3.1
with respect to a Product-Candidate, the Parties shall enter into negotiations
to consummate an agreement, which would grant to Novo the license described in Section 5.3.1
with respect to such Product-Candidate, upon commercially reasonable terms, to
be negotiated promptly, diligently and in good faith by the Parties.  If the Parties shall not have entered into
such a license within ****** after Novo’s exercise of its option with respect
to such Product-Candidate, Neose shall be free to proceed with the development
and/or commercialization of the Product-Candidate, whether alone or with a
Third Party or Third Parties, without any further obligation to Novo with
respect to such Product-Candidate, except as provided in Section 5.3.3.


 


5.3.3       Right of
First Negotiation.  During the
Term, Neose shall not enter into an agreement with a Third Party relating to
the use of the Neose Technology for the further development and
commercialization of a Product-Candidate without first allowing Novo to enter
into an agreement with respect to such Product-Candidate upon substantially the
same terms.  If Neose shall not have
already offered (and Novo shall not have already refused) substantially the same
terms to Novo under Section 5.3.2, Neose shall provide notice to
Novo of the proposed terms and conditions of any such agreement, and Novo may
exercise its right of first refusal under this Section 5.3.3 by
notice to Neose within ****** after receiving the proposed terms and conditions
from Neose.  If Novo does not exercise
its right of first refusal with respect to the terms proposed by Neose, or
exercises its right of first refusal but does not enter into an agreement with
Neose upon substantially the proposed terms within ****** after receipt
thereof, Neose shall be free to proceed with the further development and/or
commercialization of such Product-Candidate with a Third Party or Third
Parties, upon terms no more favorable to the Third Party or Third Parties than
those offered to Novo, without any further obligation to Novo with respect to
such Product-Candidate.


 


5.4          No Other
Right or Licenses.  Except for the rights and licenses expressly
granted in this Agreement, nothing in this Agreement shall be deemed to grant
to any Party any other rights or licenses, including, without limitation, any
implied licenses.


 


6.             OWNERSHIP OF
INTELLECTUAL PROPERTY


 


6.1          No Transfer
of Title.  All Ownership
Rights in and to the Neose


 


Intellectual Property and
the Reagents shall remain at all times with Neose. All Ownership Rights in the
Novo Materials, any New Products, and the Novo Technology shall remain at all
times with Novo, subject to Novo’s obligation to assign certain Ownership
Rights to Neose under Section 6.3.


 


6.2          Improvements


 


6.2.1       Neose
Improvements.  Subject to Section 6.3.1,
any and all Neose Improvements shall be owned by Neose and shall be deemed to
be part of the Neose Intellectual Property for all purposes, including, without
limitation, the license granted in Section 5.1.


 






******   — Material has been omitted and filed
separately with the Commission.


 


17

















 


Except as provided in Section 6.4, any and all Improvements
made, conceived, or reduced to practice solely by Neose shall be owned solely
by Neose.


 


6.2.2       Novo
Improvements.  Subject to Section 6.4.1, except
as otherwise provided in Section 6.3, any and all Novo Improvements
shall be owned by Novo for all purposes. 
Except as set forth in Section 6.3, any and all Improvements
made, conceived, or reduced to practice, solely by Novo shall be owned solely
by Novo.


 


6.2.3       Joint
Improvements.  Each of Neose and Novo shall own a one-half
undivided interest in any and all Joint Improvements.  Neither Party shall be permitted to license
or sublicense its one-half undivided interest in any Joint Improvement(s) to
a Third Party that is not its Affiliate for use in connection with any blood
factor products VII, VIII or IX, except with the prior written approval of the
other Party.


 


6.2.4       Other
Improvements.  If any
Improvements, other than Neose Improvements, Novo Improvements and Joint
Improvements, are made, conceived or reduced to practice jointly by Neose and
Novo under this Agreement, each Party shall own a one-half undivided interest
in and to any and all such Improvements and the Parties shall not have any
restriction with respect to the use thereof or any requirement to report or
account to the other Party with respect to any such use, unless and except to the
extent that the Parties may agree otherwise in writing.


 


6.3          Assignment
by Novo.


 


6.3.1       Neose
Improvements.  To the extent
that Novo may retain any Ownership Rights in any Neose Improvements during the
Term, Novo hereby irrevocably assigns and transfers, and agrees to assign and
transfer, to Neose, at the request of Neose, any and all such Ownership Rights
that have not been licensed to Neose under Section 5.2, in
perpetuity or for the longest period otherwise permitted by law, without the
necessity of further consideration, and Neose shall be entitled to receive and
hold in its own name all such Ownership Rights, subject to Neose’s obligations
to assign certain rights to Novo under Section 6.4.


 


6.3.2       Novo
Improvements, Joint Improvements and New Products.  If and when Novo terminates the development of
the New Product during the Term, or if this Agreement is terminated by Neose
pursuant to Section 12.2.3 or by Novo pursuant to Section 12.2.3.3,
Novo hereby irrevocably assigns and transfers, and agrees to assign and
transfer to Neose, in perpetuity or for the longest period otherwise permitted
by law, without the necessity of further consideration, and Neose shall be
entitled to receive and hold in its own name, all of Novo’s Ownership Rights in
and to the New Product, including, without limitation, Novo Improvements, Joint
Improvements and Carved Factor VIII Claims, provided that Neose shall be
entitled to receive and hold Novo’s Ownership Rights in and to Novo
Improvements and Joint Improvements only to the extent reasonably required and
reasonably necessary to produce the New Product in an effective and efficient
manner.  With respect to any Ownership
Rights and licenses that Novo is required to assign and transfer to Neose under
this Section 6.3.2, at the request of Neose, and at Neose’s
expense, either before or after termination of the Term, Novo shall assist
Neose in acquiring and maintaining patent, copyright, trade secret and
trademark protection upon, and confirming Neose’s title in and to, any such respective
Ownership Rights, and Novo shall provide Neose appropriate documentation
evidencing the licenses to which


 






******   —
Material has been omitted and filed separately with the Commission.


 


18






 










 


Neose is entitled.  Novo’s
assistance shall include, but shall not be limited to, signing all
applications, and any other documents and instruments for patent, copyright and
any other proprietary rights, providing executed license documents, cooperating
in legal proceedings, and taking any other actions considered necessary or
desirable by Neose.  For the purpose of
facilitating the above assignments, Novo agrees that any and all employees and
contractors employed or engaged by Novo and providing any service in connection
with the Project, prior to providing such service, shall have agreed in writing
to covenants consistent with Novo’s covenants set forth in this Section 6.3.  Novo shall receive a royalty from Neose on
net sales of products generated from the use of the Novo Improvements, at
commercially reasonable rates and upon commercially reasonable terms, to be
negotiated in good faith by the Parties based upon then-current benchmark
transactions in the industry.


 


6.4           Assignment
by Neose.


 


6.4.1         Ownership Rights.  To
the extent that Neose may retain any Ownership Rights in any Novo Improvements
during the Term, Neose hereby irrevocably assigns and transfers, and agrees to
assign and transfer, to Novo, at the request of Novo, any and all such
Ownership Rights that have not been licensed to Novo under Section 5.1.6,
in perpetuity or for the longest period otherwise permitted by law, without the
necessity of further consideration, and Novo shall be entitled to receive and
hold in its own name all such Ownership Rights, subject to Novo’s obligations
to assign or license certain rights to Neose under Section 6.3.  With respect to any Ownership Rights that
Neose is required to assign and transfer to Novo under this Section 6.4.1,
at the request of Novo, and at Novo’s expense, either before or after the Term,
Neose shall assist Novo in acquiring and maintaining patent, copyright, trade
secret and trademark protection upon, and confirming Novo’s title in and to,
any such respective Ownership Rights. 
Neose’s assistance shall include, but shall not be limited to, signing
all applications, and any other documents and instruments for patent, copyright
and any other proprietary rights, cooperating in legal proceedings, and taking
any other actions considered necessary or desirable by Novo.  For the purpose of facilitating the above
assignments, Neose agrees that any and all employees and contractors employed
or engaged by Neose and providing any service in connection with the Project,
prior to providing such service, shall have agreed in writing to covenants
consistent with Neose’s covenants set forth in this Section 6.4.1.


 


6.4.2         Carved Factor VIII Claims.  The
Parties will cooperate in good faith with each other in identifying Potential
Carved Factor VIII Claims, and in drafting, filing and prosecuting Carved
Factor VIII Claims.


 


6.4.2.1    The Parties will
each appoint a patent representative (“Patent
Representative”) for the purpose of communicating with the other
Party regarding this Section 6.4.2 and Section 6.4.3,
and carrying out the purposes of these Sections.  The Patent Representatives as of the date
hereof are Carsten Hansen, Karin Nilsson, and Len Smith for Novo, and Rachel
Rondinelli, Ph.D. for Neose.  The Patent
Representatives will meet in person or by phone at least quarterly and will
attend Steering Committee meetings as appropriate.


 


6.4.2.2    Each Party shall,
at least once in each Calendar Year, during the Term of this Agreement, provide
the other Party with a list of public Patent Rights (Neose Patent Rights or
Patent Rights within Novo Technology supporting Neose License 


 






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Claims, as the case may
be) providing relevant filing, priority, and status information (the “Patent Report”).


 


6.4.2.3    Each Party shall
provide the other Party with timely notification regarding any information it
becomes aware of during the Term of this Agreement that may reasonably
considered to impact the validity, enforceability, scope or term of any Neose
Patent Rights or Patent Rights within Novo Technology supporting Neose License
Claims.  Nothing in this Section 6.4.2.3
shall impose an obligation on either Party to search, investigate or actively discover
any such information nor shall it obligate either Party to perform any
investigation or inquiry with regard to any information it does become aware
of.


 


6.4.2.4    Within thirty (30)
days after the Effective Date, the Patent Representatives will hold a meeting
(in person or otherwise) to discuss the timing, logistics and other details
regarding the identification, in Neose Patents, of any Potential Carved Factor
VIII Claims and, as soon as is practicable thereafter, will agree on any Carved
Factor VIII Claims to be filed and the language therefor (the “Carved Claim Meeting”), and will hold such
other meetings as appropriate at the request of either Party to agree upon
future Carved Factor VIII Claims.  Unless
otherwise requested by Novo, Neose will notify Novo in a timely manner of the
publication of any new patent application containing subject matter supporting
Potential Carved Factor VIII Claims. 
Nothing in this Section 6.4.2 creates an obligation for
Neose to disclose any inventions to Novo other than as would be required by
other terms of this Agreement.


 


6.4.2.5    As soon as
commercially practicable following the Carved Claim Meeting and the agreement
upon Carved Factor VIII Claims, Neose will, at Novo’s sole cost and expense,
with respect to any agreed-upon Carved Factor VIII Claim, subject to this Section 6.4.2,
file, prosecute, maintain, and extend, in the jurisdictions chosen by Novo, one
or more new or continuation/divisional applications consisting of only
composition-of-matter claims explicitly and solely reciting and claiming Novo
Materials with respect to the agreed-upon Carved Factor VIII Claims, claiming
priority (each a “Carved Factor VIII Claim
Application”), as appropriate, to one or more pending Neose patent
applications.


 


6.4.2.6    Each Carved Factor
VIII Claim Application will be owned by Neose and licensed to Novo pursuant to Section 5.1.6
and, subject to Neose’s obligations in this Section 6.4.2, managed
by Neose throughout its prosecution and prosecuted by patent counsel appointed
by Neose.


 


6.4.2.7    With respect to
all Carved Factor VIII Claims, the Parties shall agree on the scope and
language of the claims to be filed. 
Neose will, within  thirty (30)
calendar days after receipt,  provide
Novo with copies of all correspondence from any patent authority or regulatory
agency, and any proceedings (including, but not limited to, opposition
proceedings, interference proceedings, protests in re-examination proceedings,
and inter partes re-examination
proceedings, and the like), relating to filed Carved Factor VIII Claims, and
shall notify Novo in writing of any oral communications regarding filed Carved
Factor VIII Claims within thirty (30) days after receipt of any such
communications.   Notwithstanding this Section  6.4.2 and Section 6.4.3,  with respect to Restriction Requirements,
Neose will provide Novo with


 


 






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a copy of the patent authority communication and
Neose’s proposed response as soon as is commercially reasonable.


 


6.4.2.8    In connection with
any proceedings before a patent authority regarding any Carved Factor VIII
Claims,  Neose shall use Commercially
Reasonable Efforts to (i) provide Novo with a copy of any proposed filing
with such patent authority regarding any Carved Factor VIII Claims, and,
(ii) inform Novo of any planned, non-written substantive communication to
such patent authority in connection with any Carved Factor VIII Claims, at least
fourteen (14) calendar days before the submission thereof or, where applicable,
at least fourteen (14) calendar days from the close of the initial
(non-extended) response period therefor. 
The Parties agree that notifications under this Section shall be
subject to receipt of information from outside patent counsel, and that Neose
shall use Commercially Reasonable Efforts to effectuate these notifications,
but in no case shall Novo be notified less than fourteen (14) calendar days
before the final non-extendable response deadline.


 


6.4.2.9    Novo may provide
to Neose proposals for (i) additions, modifications, or deletions in
Neose’s proposed responses and (i) adoption of a strategy in prosecution,
such as acceleration of prosecution, with respect to Carved Factor VIII
Claims.  Neose will include, in any
future-filed patent applications that could support Potential Carved Factor
VIII Claims, any general Factor VIII-related disclosure provided and
periodically updated by Novo.


 


6.4.2.10 Neose shall provide
Novo with copies of all written submissions to Patent Authorities in connection
with Carved Factor VIII Claims in a timely manner and shall provide, upon
Novo’s reasonable request, any or all materials previously filed with any
patent authority in connection with the subject matter of Carved Factor VIII
Claims.


 


6.4.2.11 Neose shall not
disclaim any subject matter in any Patent Right solely and specifically
reciting Carved Factor VIII Claims without Novo’s written consent, which shall
not be unreasonably withheld.


 


6.4.2.12 Neose and Novo will
continue to cooperate during the prosecution of each Carved Factor VIII Claim
Application, and endeavor to agree on prosecution strategy.  The Patent Representatives will discuss,
consider and agree on additions, modifications or deletions with respect to
filed Carved Factor VIII Claims.  All of
the activities undertaken by the Parties pursuant to this Section 6.4.2,
including the prosecution of all Carved Factor VIII Claim Applications, shall
be at Novo’s sole expense.  Neose shall
invoice Novo for any expenses incurred in the conduct of any activity and Novo
shall pay Neose within thirty (30) days after the date of such invoice.


 


6.4.2.13 Novo may, at its sole
discretion, seek, or direct Neose (at the sole cost and expense of Novo) to
seek where appropriate, an extension of the term of any Carved Factor VIII
Claim covering a New Product (including, without limitation, filing for patent
term restoration under the U.S. Patent Statutes (35 U.S.C. §§1-376) and seeking
supplementary protection certificates in the member states of the European
Union or European 


 






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Economic Area, or Switzerland). 
Neose will not seek an extension of the term of any Carved Factor VIII
Claims without Novo’s prior written consent.


 


6.4.2.14    Novo hereby
authorizes Neose to act as its agent before any patent authority in connection
with seeking an extension under Section 6.4.2.13 and agrees that
Neose is entitled to rely on any activities of Novo as a marketing applicant
before any regulatory agency in any seeking of an extension of any patent for a
New Product.  The Parties shall, at
Novo’s sole cost and expense, cooperate with any efforts to extend the term of
such patent for a New Product, including diligently supplying all information
relating to such extension, and executing supporting documents required to
comply with all laws pertaining to the extension of patent term.


 


6.4.2.15    Notwithstanding
any provision of this Section 6.4.2 or Section 6.4.1 to
the contrary, Neose shall not be obligated to file any patent application,
extension, continuation or divisional whether requested by Novo or required
under this Agreement, to the extent such filing would, in Neose’s reasonable
belief, have an adverse effect on Neose’s current or future Patent Rights or
patent strategy in light of the new prosecution rules promulgated by the
United States Patent and Trademark Office, and the likelihood for changes in
USPTO Markush claim practice, USPTO Information Disclosure Statement (IDS)
practice, reform of the U.S. Patent System (e.g., HR 1908) and changes to the European Patent Convention (EPC)
(as the same may be amended after the Effective Date, the “New Rules”) and rules of practice in
effect at the Effective Date of this Agreement, or any successor rules or
regulations thereto (jointly, “The Rules”);
provided however, that in the event Neose decides to file a patent application,
extension, continuation or divisional, Neose shall provide notice of the same
to Novo and use reasonable, good faith efforts to include in such patent
application, extension, continuation or divisional any claims reasonably and
timely requested by Novo to the extent such claims do not have an adverse
effect on Neose’s current or future Patent Rights or patent strategy in light
of The Rules.  Neose’s decisions with
respect to the impact of The Rules on any proposed filing shall be made
after input from Novo and consultation with Neose’s patent counsel and shall
not be subject to the dispute resolution provisions of Section 6.4.2.16.


 


6.4.2.16 In the event the
Patent Representatives are unable to agree upon (i) a Carved Factor VIII
Claim, (ii) the scope, language or prosecution strategy therefor, or
(iii) any other matter under this Section 6.4.2, the Parties
will do the following to resolve the dispute:


 


(a)   Any disagreement will be
referred to the Steering Committee for a period of 15 business days.


 


(b)   If the Steering Committee is
unable to resolve the dispute within such 15 business day period, the dispute
will be referred to the Designated Representatives of the Parties for
resolution.  If the dispute is not
resolved by the Designated Representatives within 15 business days, the dispute
may be referred to arbitration in accordance with Section 13.2.


 






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6.4.3       Neose License Claims. 
The Parties will cooperate in good faith with each other in
identifying Neose License Claims, and in drafting, filing and prosecuting Neose
Improvement Claims.


 


6.4.3.1    Novo will notify
Neose of any Patent Rights containing Neose License Claims not constituting
Neose Improvement Claims (each an “Other
Neose License Claim”) promptly upon publication of any patent
application containing Neose License Claims. 
Novo’s Patent Representative will keep Neose’s Patent Representative
fully-informed about the status of any filing containing Other Neose License
Claims.


 


6.4.3.2    The Patent
Representatives will meet in person or by phone at least quarterly, but more
often if necessary, (each such meeting a “Neose
Improvement Meeting”) to discuss the timing, logistics and other
details regarding the identification, of any Neose Improvement Claims and, as
soon as is practicable thereafter, will agree on the specific claims to be
filed and the language therefor.


 


6.4.3.3    As soon as
commercially practicable following each Neose Improvement Meeting and the
agreement upon Neose Improvement Claims to be filed, Novo will, at Neose’s sole
cost and expense, with respect to any agreed-upon Neose Improvement Claim,
subject to this Section 6.4.3, file, prosecute, maintain, and
extend, in the jurisdictions chosen by Neose, one or more new or
continuation/divisional applications consisting only of the agreed-upon Neose
Improvement Claims, claiming priority (each a “Neose Improvement Claim Application”), as appropriate, to one
or more pending Novo patent applications.


 


6.4.3.4    Each Neose
Improvement Claim Application will be owned by Novo and licensed to Neose
pursuant to Section 5.2 and, subject to Novo’s obligations in this Section 6.4,
managed by Novo throughout its prosecution and prosecuted by patent counsel
appointed by Novo.


 


6.4.3.5    With respect to
all Neose License Claims, the Parties shall agree on the scope and language of
the claims to be filed.  Novo will,
within thirty (30) calendar days after receipt, provide Neose with copies of all
correspondence from any patent authority or regulatory agency, and any
proceedings (including, but not limited to, opposition proceedings,
interference proceedings, protests in re-examination proceedings, and inter partes re-examination proceedings,
and the like), relating to filed Neose Improvement Claims, and shall notify
Neose in writing of any oral communications regarding filed Neose License
Claims within thirty (30) days after receipt of any such communications.  Notwithstanding Section 6.4.2 and
Section 6.4.3,  with respect
to Restriction Requirements, Novo will provide Neose with a copy of the patent
authority communication and Novo’s proposed response as soon as is commercially
reasonable.


 


6.4.3.6    In connection with
any proceedings before a patent authority regarding any Neose License
Claims,  Novo shall use Commercially
Reasonable Efforts to (i) provide Neose with a copy of any proposed filing
with such patent authority regarding any Neose License Claims, and,
(ii) inform Neose of any planned, non-written substantive communication to
such patent authority in connection with any Neose License Claims, at least


 






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fourteen (14) calendar days before the submission thereof or, where
applicable, at least fourteen (14) calendar days from the close of the initial
(non-extended) response period therefor. 
The Parties agree that notifications under this Section shall be
subject to receipt of information from outside patent counsel, and that Novo
shall use Commercially Reasonable Efforts to effectuate these notifications but
in no case shall Neose be notified less than fourteen (14) calendar days before
the final non-extendable response deadline.


 


6.4.3.7    Neose may provide
to Novo proposals for (i) additions, modifications, or deletions in Novo’s
proposed responses and (i) adoption of a strategy in prosecution, such as
acceleration of prosecution, with respect to Neose License Claims.  Novo will include, in any future-filed patent
applications that could support Neose License Claims, any general Neose
Technology-related disclosure provided and periodically updated by Neose.


 


6.4.3.8    Novo shall provide
Neose with copies of all written submissions to Patent Authorities in
connection with Neose License Claims in a timely manner and shall provide, upon
Neose’s reasonable request, any or all materials previously filed with any
patent authority in connection with the subject matter of Neose License Claims.


 


6.4.3.9    Novo shall not
disclaim any subject matter in any Patent Right solely and specifically
reciting Neose Improvement Claims without Neose’s written consent, which shall
not be unreasonably withheld.


 


6.4.3.10 Novo and Neose will
continue to cooperate during the prosecution of each Neose Improvement Claim
Application, and endeavor to agree on prosecution strategy.  The Patent Representatives will discuss,
consider and agree on additions, modifications or deletions with respect to filed
Neose License Claims.  All of the
activities undertaken by the Parties pursuant to this Section 6.4.3,
including the prosecution of all Neose Improvement Claim Applications, shall be
at Neose’s sole expense.  Novo shall
invoice Neose for any expenses incurred in the conduct of any activity and
Neose shall pay Novo within thirty (30) days after the date of such invoice.


 


6.4.3.11 Neose may, at its
sole discretion, seek, or direct Novo (at the sole cost and expense of Neose)
to seek where appropriate, an extension of the term of any Other Neose License
Claim solely and specifically reciting a Neose Exclusive Compound or any Neose
Improvement Claim (including, without limitation, filing for patent term
restoration under the U.S. Patent Statutes (35 U.S.C. §§1-376) and seeking
supplementary protection certificates in the member states of the European
Union or European Economic Area, or Switzerland).  Novo will not seek an extension of the term
of any Neose License Claim to which Neose has an exclusive license under Section 5.3
without Neose’s prior written consent.


 


6.4.3.12 Neose hereby
authorizes Novo to act as its agent before any patent authority in connection
with seeking an extension under Section 6.4.3.11 and agrees that
Novo is entitled to rely on any activities of Neose as a marketing applicant
before any regulatory agency in any seeking of an extension of any patent for a
product containing a Neose Exclusive Compound. 
The Parties shall cooperate, at Neose’s sole cost and expense, with any 


 






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efforts to extend the term of such patent for a product containing a
Neose Exclusive Compound, including diligently supplying all information
relating to such extension, and executing supporting documents required to
comply with all laws pertaining to the extension of patent term.


 


6.4.3.13 In the event the
Patent Representatives are unable to agree upon (i) a Neose License Claim,
(ii) the scope, language or prosecution strategy therefor, or
(iii) any other matter under this Section 6.4.3, the Parties
will do the following to resolve the dispute:


 


(a)                   Any
disagreement will be referred to the Steering Committee for a period of 15
business days.


 


(b)                   If
the Steering Committee is unable to resolve the dispute within such 15 business
day period, the dispute will be referred to the Designated Representatives of
the Parties for resolution.  If the
dispute is not resolved by the Designated Representatives within 15 business
days, the dispute may be referred to arbitration in accordance with Section 13.2.


 


6.5          Prosecution
and Maintenance of Patent Rights


 


6.5.1       Solely Owned
Patent Rights.  Subject to Sections
6.4.2 and 6.4.3, each Party shall, in its sole discretion, prepare, file,
prosecute and maintain all patent applications and patents covering its Patent
Rights and Improvements that the Party solely owns pursuant to Section 6.  Neose shall use reasonable commercial efforts
to provide to Novo for review and comment, at least ten (10) days prior to
filing, all patent claims relating specifically to the New Product to be filed
by Neose, and Neose shall give due consideration to all comments thereon that
are made by Novo within the period ending two days before the proposed filing
date.


 


6.5.2       Patent
Rights with Respect to Joint Improvements.  With respect to Joint Improvements, the
Parties shall meet to determine whether patent protection is appropriate and,
if so, in which countries, if any, patent applications claiming such joint
inventions and discoveries should be filed. 
Novo shall file, prosecute, and maintain, at its expense, such joint
patent applications.  Novo may at any
time, in its sole discretion, discontinue the preparation, prosecution or
maintenance of such joint patent applications, in which case Novo will give
Neose sufficient notice to enable Neose to, and Neose may, file, prosecute and
maintain such applications.


 


6.6          Enforcement of Ownership Rights


 


6.6.1       Reports of
Infringement.  Each Party shall promptly report in writing
to the other during the Term any infringement or misappropriation or
suspected infringement or misappropriation of any of the Neose Technology,
Neose License Claims or Carved Factor VIII Claims of which such Party becomes
aware and shall provide the other Party with its full cooperation in the
protection and enforcement of the affected intellectual property and all
available evidence supporting said infringement, misappropriation, suspected
infringement or unauthorized use or misappropriation.  Neose shall reimburse Novo for its 


 






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reasonable, documented
costs of such cooperation with regard to Neose Technology and Neose License
Claims, unless such infringement or misappropriation is by an Affiliate or
Sublicensee of Novo and Novo shall reimburse Neose for its reasonable,
documented costs of such cooperation with regard to Carved Factor VIII Claims,
unless such infringement or misappropriation is by an Affiliate or Sublicensee
of Neose.


 


6.6.2       Right to
Institute Suit.  Neose shall have the sole right to initiate
an infringement or other appropriate suit against any Third Party who at any
time has infringed or is suspected of infringing or misappropriating, the Neose
Technology and any Neose  Improvement
Claims  and Novo shall have the sole
right to initiate an infringement or other appropriate suit against any Third
Party who at any time has infringed or is suspected of infringing or
misappropriating, the Carved Factor VIII Claims and any Other Neose License
Claims.  Prior to initiating any such
suit, the Designated Representatives shall consult with each other on an
expedited basis, and the party initiating such suit (as such the “Enforcing Party”) shall give due
consideration to any reasonable requests the other party may make relating to
the advisability of bringing the suit. The Enforcing Party shall not enter into
any settlement, consent judgment or other voluntary final disposition of such
suit that would adversely affect the other party’s rights under this Agreement
without the other party’s prior written consent, which consent shall not be
unreasonably withheld with the proviso that no such consent will be required in
the case of a settlement by Novo related to Carved Factor VIII Claims unless
such settlement could have an adverse effect on any of Neose’s Patent Rights.
In the event that the Enforcing Party recovers any sums in such suit by way of
damages or in settlement thereof, the Enforcing Party shall be entitled to
retain the same.


 


6.6.3       Cooperation.   In
a suit initiated by one party, if it is legally required for the other party to
join any such suit, or if failure of the other party to join such suit would
result in dismissal thereof, the other party shall waive any objection to such
joinder on the grounds of personal jurisdiction, venue or forum non conveniens
and shall execute all papers and perform such other acts as may be reasonably
required to permit the litigation to be conducted.


 


6.6.4       Continued
Infringement.


 


6.6.4.1    If Neose fails to
either bring suit against or enter into negotiations for settlement with such
Third Party within six (6) months after receipt of notice of such
infringement and Novo is of the opinion that the alleged infringement or
misappropriation of Neose Technology is occurring in the Field of Use then,
upon Novo’s written request, the Parties shall seek the opinion of patent
counsel acceptable to both Parties as to whether there has been or continues to
be a misappropriation or infringement of the Neose Technology in the Field of
Use by such Third Party. If such patent counsel concurs with Novo’s opinion,
Novo shall have the right, but not the obligation, to bring suit against such
Third Party under the Neose Technology and to join Neose as a party
plaintiff.  Neose will cooperate with
Novo in any such suit brought against a Third Party and shall have the right to
consult with Novo and to participate in and be represented by counsel in such
suit at its own expense.  In the event
that Novo recovers any sums in such suit by way of damages or in settlement
thereof, such sums shall be used first to reimburse each of Novo and Neose for
their documented, out-of-pocket legal expenses, with Novo retaining any
remaining amounts.


 






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6.6.4.2    If Novo fails to
either bring suit against or enter into negotiations for settlement with such
Third Party within six (6) months after receipt of notice of such
infringement and Neose is of the opinion that the alleged infringement or
misappropriation of  the relevant Neose
License Claims is occurring with regard to a Neose Exclusive Compound then,
upon Neose’s written request, the Parties shall seek the opinion of patent
counsel acceptable to both Parties as to whether there has been or continues to
be a misappropriation or infringement of the Neose License Claims that affects
a Neose Exclusive Compound by such Third Party. 
If such patent counsel concurs with Neose’s opinion, Neose shall have
the right, but not the obligation, to bring suit against such Third Party under
the Neose License Claims and to join Novo as a party plaintiff.  Novo will cooperate with Neose in any such
suit brought against a Third Party and shall have the right to consult with
Neose and to participate in and be represented by counsel in such suit at its
own expense.  In the event that Neose
recovers any sums in such suit by way of damages or in settlement thereof, such
sums shall be used first to reimburse each of Neose and Novo for their
documented, out-of-pocket legal expenses, with Neose retaining any remaining
amounts.


 


6.7          Novo
Trademarks.  Subject to its
assignment obligations under Section 6.3.2, Novo shall select and
own the trademarks for marketing the New Products in the Territory. All
expenses for (i) registration of such trademarks, and (ii) bringing,
maintaining and prosecuting any action to protect or defend such trademarks,
shall be borne by Novo, and Novo shall retain all recoveries therefrom.


 


7.             BLOCKING PATENTS


 


7.1          Mutual
Information.  Each Party shall immediately notify the other
if a claim or other proceedings are brought against either Party alleging that
the use of the Neose Technology in making, using or selling the New Product
infringes upon the Patent Rights of a Third Party.


 


7.2          Defense of
Third Party Action.  If claims or proceedings are brought against
Novo by a Third Party alleging that the use of the Neose Technology to produce
a New Product infringes upon the Patent Rights of a Third Party, the Designated
Representatives shall consult on an expedited basis, and Neose shall give due
consideration to any reasonable request of Novo relating to the proposed
defense or settlement of such claims or proceedings.  Subject to Section 7.4, the final
decision whether or not and, as the case may be, how to defend or settle such
claims or proceedings shall be with Neose. 
Neose shall immediately notify Novo of such decision sufficiently in
advance of any deadlines by which formal responses are due in any such
proceedings to enable Novo to undertake its own defense and Novo shall have the
right to join any such proceedings as a party thereto at its own expense by
counsel of its own choice.  Each Party
shall provide the other with such assistance as is reasonably necessary and
shall cooperate in the defense of any such action or proceeding. Neose shall
not enter into any settlement, consent judgment, or other voluntary final
disposition of such suit that would adversely affect Novo’s rights under this
Agreement or which would result in Novo being liable for damages, without
Novo’s prior written consent, which consent shall not be unreasonably withheld.


 






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7.3          Declaratory
Judgment Action.  Neose shall have the right, but
not the obligation, to file any declaratory judgment action in any court of
competent jurisdiction as to questions of validity or infringement of any Third
Party patent relating to the use of the Neose Technology.


 


7.3.1       Cooperation. 
The Parties shall closely cooperate in any such declaratory judgment
action.  In conducting such action, the
Parties shall render each other all reasonable assistance, free of charge. The
final strategy in such action shall be determined by Neose and Neose’s legal
counsel in coordination with Novo and any additional legal counsel of Novo.


 


7.3.2       Costs. 
Subject to Article 11 hereof, each Party shall bear its own costs
and expenses incurred in connection with actions pursuant to Sections 7.2
and 7.3.


 


7.4          Third-Party Licenses


 


7.4.1       Novo Third-Party
Licenses.  In the event that Novo is of the opinion, at
any time during the Term, that a license under any Blocking Patent is necessary
or advisable for purposes of enabling Novo to exercise its license rights under
Section 5.1.1, it shall notify Neose.  The Parties shall then seek an opinion of
patent counsel acceptable to both Parties. If such patent counsel concurs with
Novo’s opinion, Novo and Neose shall co-operate to obtain such a license for
the benefit of Novo and, as the case may be, also for Neose, in accordance with
the following provisions:


 


7.4.1.1    Neose shall be
primarily responsible for obtaining any such Third Party license at its own
expense.  The matter shall be deemed
resolved if Neose is granted a license, ******,
under the relevant Blocking Patent that would make the continued exercise of
the rights granted to Novo by Neose hereunder non-infringing with respect to ******. 
****** shall be solely
responsible for ****** under such
license.


 


7.4.1.2    However, in the
event that Neose is unable to resolve the matter in accordance with Section 7.4.1.1
within one hundred twenty (120) days from receipt of notice from Novo upon
terms that are commercially reasonable to Neose at Neose’s discretion, then
Novo shall be entitled to negotiate a license in favor of Novo under such
Blocking Patents; provided that to the extent that Novo must ****** under such license, Novo may ****** payments owed under Sections 4.1
or 4.2, provided that no payment owed under Section 4.1or 4.2
shall be ****** more than ****** as a result of the operation of this
Section 7.4.1.2.


 


7.4.1.3    In relation to the
negotiation and contracting of any such Blocking Patent license, the provisions
of this Section 7.4 shall prevail over the provisions of Sections
7.2 and 7.3.


 






******   — Material has been omitted and filed
separately with the Commission.


 


28






 


 










 


8.             SUPPLY
AGREEMENT


 


The Parties will negotiate in good faith a
Supply Agreement, as appropriate, to provide for the supply of the Reagents
needed to produce New Products in the Field of Use provided,
however, that until execution and delivery of the Supply Agreement,
the Parties agree that Novo shall be permitted to use, in the performance of
its obligations under this Agreement, any of the Reagents supplied to Novo
under the supply agreement executed by the Parties as of July 12, 2007 in
connection with the Factor VIIa Agreement (subject to Section 2.7 of that
supply agreement).  The Parties
acknowledge and agree that the costs of technology transfer to Novo or any
approved Sublicensees will be borne by Novo.


 


9.             CONFIDENTIALITY


 


9.1          Confidential Information.  With respect to any and all Confidential
Information received by one Party under this Agreement and/or during the course
of the Project, (the “Recipient”)
from the other Party (the “Disclosing Party”)
at any time and from time to time prior to the Original Date or during the
Term, the Recipient for a period of five (5) years from the expiration or
earlier termination of this Agreement: (a) shall maintain the secrecy of,
and hold in strict confidence, the Confidential Information received hereunder;
(b) shall not use such Confidential Information for any other purpose
other than in furtherance of this Agreement; and (c) shall not, without
express written authorization from the Disclosing Party, use, disclose or grant
the use of such Confidential Information to any other Persons except to those
of the Recipient’s directors, officers, employees, and advisors to whom such
disclosure is reasonably necessary in furtherance of this Agreement and each of
whom is otherwise bound to Recipient by contract or legal or fiduciary
obligation at the time of such disclosure to maintain the secrecy of, and hold
in confidence, such Confidential Information. 
The Recipient shall notify the Disclosing Party promptly upon discovery
of any unauthorized use or disclosure of the Disclosing Party’s Confidential
Information.


 


9.2          Permitted Disclosures.  The obligations set forth in Section 9.1
shall not apply to the extent that the Recipient: (a) is required to
disclose information by law, order or regulation of a governmental agency or a
court of competent jurisdiction, provided that the Recipient shall provide
written notice thereof and sufficient opportunity to the Disclosing Party to
object to any such disclosure or to request confidential treatment thereof; or (b) can
demonstrate that: (i) the information was public knowledge or generally
known by publication in scientific or other journals or other public media at
the time of such disclosure to the Recipient or thereafter became public
knowledge or generally known other than as a result of acts directly or
indirectly attributable to the Recipient in violation hereof; (ii) the
information was rightfully known by the Recipient (as shown by its written
records) prior to the date of disclosure to the Recipient by the Disclosing
Party under this Agreement; (iii) the information was disclosed to the Recipient
on an unrestricted basis by a Third Party not under a duty of confidentiality
to the Disclosing Party, or (iv) the information was independently
developed by Recipient (as shown by its written records) without any use of or
access to information of the Disclosing Party. 
In addition, provided that Neose
maintains the confidentiality of Novo’s name, with the prior approval of Novo,
which approval will not be unreasonably withheld, Neose will have the right to
use data


 






******   — Material has been omitted and filed
separately with the Commission.


 


29

















 


about Novo Materials and New
Products (i) to support a patent application by Neose, and (ii) for
promotional purposes, subject to compliance with any publication plan for
development of the New Products that shall have been approved by the Steering
Committee.


 


9.3          Enforcement.  Both Parties agree that it would be impossible or inadequate to
measure and calculate the other Party’s
damages from any breach of the covenants set forth in this Agreement.  Accordingly, the Disclosing Party agrees that
if the Recipient breaches any of
such covenants, the Disclosing Party
will have available, in addition to any other right or remedy available, the
right to obtain an injunction from a court of competent jurisdiction
restraining such breach or threatened breach and to specific performance of any
such provision of this Agreement.  Both
Parties further agrees that no bond or other security shall be required in
obtaining such equitable relief and each
Party hereby consents to the issuance of such injunction and to the ordering of
specific performance.


 


9.4          Publicity.  Except as required by law, all publicity,
press releases and other announcements relating to this Agreement or the
transactions contemplated hereby, shall be reviewed in advance by, and shall be
subject to the reasonable approval of, both Parties.


 


10.          REPRESENTATIONS AND
WARRANTIES


 


10.1        Mutual
Representations and Warranties.  Each Party hereby represents and warrants to
the other that:


 


10.1.1       The execution, delivery and performance of this Agreement by it have
been duly authorized by all requisite corporate action, and this Agreement has
been duly executed and delivered by and on behalf of such Party.


 


10.1.2       The execution, delivery and performance by such Party of this Agreement
does not (i) conflict with or violate any applicable statute, law, rule or
regulation, (ii) conflict with or violate its charter, bylaws or other
organizational document, or (iii) conflict with or constitute a default
under any contract or agreement of such Party.


 


10.2        Representations and
Warranties of Neose.  Neose
warrants to Novo, as of the Original Date and the Effective Date, that:


 


10.2.1       It is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Delaware, with the power and authority
to sign, deliver and perform all of its obligations under this Agreement.


 


10.2.2       It is the sole and exclusive owner of the Neose Patents, or otherwise
Controls the Neose Patents, and has the full corporate power and authority to
grant the licenses granted hereunder.


 


10.2.3       To Neose’s knowledge, the use of the Neose Technology pursuant to the
terms of this Agreement does not infringe upon the rights of any Third Party.


 


10.2.4       To Neose’s knowledge, there is no Blocking Patent that, if asserted by
Third Parties, would prevent Novo from using the Neose Technology to make New
Products hereunder.


 






******   — Material has been omitted and filed
separately with the Commission.


 


30

















 


10.2.5       To Neose’s knowledge, no claims or proceedings have been brought by
Third Parties alleging the invalidity in whole or in part of any of the Neose
Patents.


 


10.3        Representations and
Warranties of Novo.  Novo
warrants to Neose, as of the Original Date and the Effective Date, that:


 


10.3.1       It is a corporation duly incorporated, validly existing and in good standing
under the laws of the Kingdom of Denmark, with the power and authority to sign,
deliver and perform all of its obligations under this Agreement.


 


10.3.2       It is the sole and exclusive owner of the Novo Technology, and has the
full corporate power and authority to grant the licenses granted hereunder.


 


10.3.3       To Novo’s knowledge, the use of the Novo Technology pursuant to the
terms of this Agreement does not infringe upon the rights of any Third Party.


 


10.3.4       To Novo’s knowledge, there is no Blocking Patent that, if asserted by
Third Parties, would prevent Neose from using the Novo Technology to perform
its activities under the Work Plan.


 


10.3.5       To Novo’s knowledge, no claims or proceedings have been brought by
Third Parties alleging the invalidity in whole or in part of any of the Novo
Technology.


 


10.3.6       To Novo’s knowledge, Novo has disclosed to Neose, and Exhibit 1.27
lists, all Patent Rights Controlled by Novo existing as of October 31,
2006 which supported any claims relating to any of (i) any methods of ******; and (ii) any ****** derived from or used in the practice of such
methods described in clause (i) above, as well as all patent claims
arising out of, enabled by, infringing or otherwise covering the Neose
Technology or Neose Improvements filed by Novo.


 


10.4        Disclaimer of Warranties.  EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION 10,
EACH PARTY HEREBY DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT.


 


10.5        Acknowledgment by Novo.  Novo acknowledges and hereby agrees
that Neose makes no representations or warranties as to the outcome of the
Project, including without limitation whether the application of the Neose
Technology will improve the Novo Materials.


 


11.          INDEMNIFICATIONS
AND LIMITED LIABILITY


 


11.1        Indemnification by Neose.  Neose shall indemnify, defend and hold
harmless Novo and its Affiliates, and each of their respective employees,
officers, directors and agents (each, a “Novo
Indemnified Party”) from and against any and all claims, suits,
losses, obligations, damages, deficiencies, costs, penalties, liabilities
(including strict liabilities),


 






******   — Material has been omitted and filed
separately with the Commission.


 


31

















 


assessments, judgments, amounts paid in settlement,
fines, and expenses (including court costs and reasonable fees of attorneys and
other professionals) (individually and collectively, “Losses”)
resulting from or arising in connection with (i) the breach by Neose of
any of its  representations or warranties
contained in Section 10, (ii) any claim by a Third Party
alleging that the use of the Neose Technology infringes upon the Patent Rights
of such Third Party, and (iii) any activities of Neose under this
Agreement.  Notwithstanding the
foregoing, Neose shall have no obligation to indemnify, defend or hold harmless
a Novo Indemnified Party for any Losses to the extent that such Losses were
caused by (x) the negligence or willful misconduct of any of the Novo
Indemnified Parties, or (y) a breach by Novo of any of its representations
and warranties set forth in Section 10.


 


11.2        Indemnification by Novo.  Novo shall indemnify, defend and hold
harmless Neose and its Affiliates, and each of their respective employees,
officers, directors and agents (each, a “Neose
Indemnified Party”) from and against any and all Losses resulting
from or arising in connection with (i) the breach by Novo of any of its
representations and warranties set forth in Section 10, (ii) the
failure of any Affiliate to comply with any obligation of Novo applicable to
the Affiliate under this Agreement, (iii) the failure of any Sublicensee
to comply with any obligation under a sublicense granted by Novo hereunder, (iv) the
promotion, distribution, use, testing, marketing, sale, or other disposition of
any New Product, (v) any claim by a Third Party alleging that the use of
the Novo Technology or the manufacture, sale or use of New Products infringes
upon the Patent Rights of such Third Party, except to the extent such claims
arise solely as a result of the use of Neose Technology, and (vi) any
activities of Novo under this Agreement. 
Notwithstanding the foregoing, Novo shall have no obligation to
indemnify, defend or hold harmless a Neose Indemnified Party for any Losses to
the extent that such Losses were caused by (x) the negligence or willful
misconduct of Neose, its Affiliates, sublicensees, or any of their respective
employees, officers, directors, or agents, or (y) a breach by Neose of any
of its representations and warranties set forth in Section 10.


 


11.3        Indemnification Procedure.  Each Party shall provide prompt written
notice to the other of any actual or threatened Loss or claim therefor of which
the other becomes aware; provided that the failure to provide prompt written
notice shall only be a bar to recovering Losses to the extent that a Party was
prejudiced by such failure.  In the event
of any such actual or threatened Loss or claim therefor, each Party shall
provide the other information and assistance as the other shall reasonably
request for purposes of defense and each Party shall receive from the other all
necessary and reasonable cooperation in such defense including, but not limited
to, the services of employees of the other Party who are familiar with the
transactions or occurrences out of which any such Loss may have arisen.  Each Party shall have the right to
participate in and with respect to the defense of any Loss or Losses with
counsel of its choosing whose fees shall be borne by the Party with liability
for indemnification under Sections 11.1 or 11.2, as the case may
be, and no Party shall have the right to settle any claim or agree to the entry
of any judgment or other relief without the prior consent of the other Party,
which consent shall not be withheld unreasonably.


 


11.4        Consequential Damages.  NEITHER PARTY SHALL HAVE ANY LIABILITY TO THE
OTHER PARTY FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR
INCIDENTAL DAMAGES SUFFERED BY SUCH OTHER


 






******   — Material has been omitted and filed
separately with the Commission.


 


32

















 


PARTY AND ARISING OUT OF OR RELATED TO THIS AGREEMENT,
HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE),
INCLUDING, WITHOUT LIMITATION, LOST PROFITS, AND WHETHER OR NOT SUCH PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.


 


11.5        Insurance.  During the term of the Supply
Agreement, Neose agrees to obtain and maintain commercial general liability
insurance with reputable and financially secure insurance carriers to cover the
use of the Neose Technology in New Products, with limits of not less than
****** per occurrence and ****** in the aggregate.  Novo agrees to maintain during the Term
commercial general liability insurance with limits of not less than ****** per
occurrence and ****** in the aggregate to cover its indemnification obligations
under Section 11.2.  In
addition, Novo agrees to maintain during the Term clinical trials insurance and
product liability insurance with limits reasonable to cover its indemnification
obligations under Section 11.2. 
All insurance shall be procured with reputable and financially secure
insurance carriers.


 


12.          TERM AND
TERMINATION


 


12.1        Term.  The term of this Agreement (the “Term”) shall commence on the Effective Date and, unless
sooner terminated in accordance with Section 12.2, shall terminate
on the expiration of the last to expire patent included in the Neose Technology
incorporating a Valid Patent Claim that would be infringed by making, using,
selling, offering to sell, importing or exporting the New Product, after which
Novo shall have a perpetual, fully paid up, royalty
free, exclusive license (even as to Neose) to commercialize New Products.


 


12.2        Termination


 


12.2.1     Termination of Project
Plan.  If the Project is
terminated by mutual agreement, this Agreement will automatically terminate.


 


12.2.2     No Commercial Sale.  If there
has not been a Commercial Sale of the New Product before the ****** anniversary of the ****** Milestone (as defined in Section 4.2.2),
Neose shall be entitled to terminate this Agreement with respect to the New
Product, effective upon thirty (30) days written notice to Novo, provided that
Novo shall have the right to extend this Agreement with respect to the New
Product for consecutive ****** periods
by timely payment of the optional minimum royalties set forth in Sections
4.2.2.1 through 4.2.2.5, up to a maximum extension of ****** years.  Neose
shall not have the right to terminate this Agreement under this Section 12.2.2
at any time when Novo has extended this Agreement in accordance with Section 4.2.2
with respect to the New Product and is in full compliance with its obligations
with respect thereto.


 


12.2.3       Termination for Cause.


 


12.2.3.1 Breach.  A
Party shall have the right to terminate this Agreement at any time for a
material breach of this Agreement by the other Party upon written notice by the
non-breaching Party to the other Party describing such breach in reasonable
detail and stating the non-breaching Party’s intention to terminate this
Agreement, provided that


 






******   — Material has been omitted and filed
separately with the Commission.


 


33

















 


the other Party shall have a period of ****** from the
date of such notice to cure the breach, or, if such breach is not susceptible
of being cured within such ****** period, and the breaching Party utilizes
diligent good faith efforts to cure such breach, then such period shall be
extended to ******.  If such breach is
cured within the applicable period, the termination notice shall become
ineffective.  Otherwise, the termination
shall become effective upon the expiration without cure of the applicable
period.


 


12.2.3.2                 Bankruptcy.  A
Party shall have the right to terminate this Agreement at any time upon the
filing or institution of bankruptcy, reorganization, liquidation or
receivership proceedings, or upon an assignment of a substantial portion of the
assets of the benefit of creditors by the other Party, or in the event a
receiver or custodian is appointed for such Party’s business, or if a
substantial portion of such Party’s business is subject to attachment or
similar process; provided, however, that in the case of any involuntary
bankruptcy proceeding, such right to terminate shall only become effective if
the proceeding is not dismissed within ****** after the filing thereof.


 


12.2.3.3                 Termination by Novo.  Novo may terminate this Agreement at any time
without cause upon ****** prior written notice to Neose of such termination,
provided that Novo shall pay to Neose one hundred percent (100%) of all
documented Neose Project-Related Costs and any other costs incurred or accrued
by Neose prior to the effective date of such termination for the conduct of the
Original Work Plan and the Work Plan through the date of termination.


 


12.3        Effect
of Termination or Expiration


 


12.3.1     Prior Obligations.  Termination or expiration of this Agreement
shall not relieve the Parties of any obligation arising prior to the effective
date of such termination or expiration and shall not constitute a waiver of any
right of the Parties under this Agreement as a result of breach or default.


 


12.3.2     Confidential Information.  Upon the termination or expiration of this
Agreement, each Recipient shall, as the Disclosing Party may direct, destroy or
return to the Disclosing Party promptly all tangible materials provided to
Recipient by the Disclosing Party that embody the Disclosing Party’s
Confidential Information and shall erase or delete all of the Disclosing Party’s
Confidential Information embodied in any magnetic, optical or intangible medium
or stored or maintained on any information storage and/or retrieval device, and
deliver to the Disclosing Party a certification of such destruction, return,
erasure or deletion signed by an officer of the Disclosing Party.


 


12.3.3     Survival.  No termination under this
Agreement shall constitute a waiver of any rights or causes of action that
either Party may have for any acts or omissions or breach under this Agreement
by the other Party prior to the termination date.  The following Sections of this Agreement
shall survive the expiration or any termination of this Agreement in accordance
with their respective meanings: Sections 4.8, 5.1.2, 6, 9, 11, 12, 13, 15,
16 and 17 and any other provision required to interpret this Agreement.


 






******   — Material has been omitted and filed
separately with the Commission.


 


34

















 


12.3.4     Effect on Sublicensees. 
Any sublicenses granted by Novo hereunder shall automatically terminate
or expire at the same time this Agreement terminates or expires.


 


13.          DISPUTE RESOLUTION


 


13.1        By Senior Officers.  Except as otherwise provided in Section 9.3,
all disputes arising under this Agreement will first be submitted in writing
for dispute resolution to the Designated Representative of each Party.  If the dispute is not resolved within
forty-five (45) days, the dispute shall be referred to arbitration in
accordance with Section 13.2.


 


13.2        Arbitration


 


13.2.1     Rules and Location.  Except with
respect to disputes arising under Section 9.3, all disputes arising between the Parties under
this Agreement that have not been resolved in accordance with Section 13.1
shall be settled by arbitration conducted in accordance with the procedures of
the International Chamber of Commerce (“ICC”).  The version of the arbitration rules which
are in force when the dispute occurs shall be decisive.  The arbitration tribunal shall have one
arbitrator, who shall be selected from the panels of the ICC by agreement of
the Parties, provided, however that if the parties cannot agree on the  arbitrator, the arbitration tribunal shall
consist of three arbitrators, one selected by Neose, one selected by Novo, and
the third selected by the other two arbitrators.  The arbitration tribunal may also decide on
the validity of the arbitration agreement. 
The place of the arbitration tribunal shall be Philadelphia,
Pennsylvania.  The arbitration
proceedings, orders and writs shall be in the English language.


 


13.2.2     Judgments.  Any award
rendered by the arbitrators shall be binding upon the Parties hereto and shall
be final.  Judgment upon the award may be
entered in any court of record of competent jurisdiction.


 


13.2.3     Expenses.  Each
Party shall pay its own expenses of arbitration and the expenses of the
arbitrators shall be equally shared unless otherwise ordered by the
arbitrators.


 


14.          GOVERNMENT
APPROVAL


 


14.1        HSR Filing.  Novo has made the determination that no
filing under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended, and the rules and regulations promulgated thereunder
(collectively, the “HSR Act”) is
required.  If any HSR filing is
subsequently determined by Novo to be required, to the extent necessary, each
Party shall file, as soon as practicable after the date this Agreement is
executed, with the Federal Trade Commission (the “FTC”)
and the Antitrust Division of the United States Department of Justice (the “Antitrust Division”) the notification and report form (the “Report”) required under the HSR Act with respect to the
transactions as contemplated hereby and shall reasonably cooperate with the
other Party to the extent necessary to assist the other Party in the
preparation of its


 






******   — Material has been omitted and filed
separately with the Commission.


 


35

















 


Report and to proceed to obtain necessary approvals
under the HSR Act, including but not limited to the expiration or earlier
termination of any and all applicable waiting periods required by the HSR
Act.  Each Party shall bear its own
expenses, including, without limitation, legal fees, incurred in connection
with preparing such filings.


 


14.2        Obligations.  Each Party shall use its good faith efforts
to eliminate any concern on the part of any court or government authority
regarding the legality of the proposed transaction, including, if required by
federal or state antitrust authorities, promptly taking all steps to secure
government antitrust clearance, including, without limitation, cooperating in
good faith with any government investigation including the prompt production of
documents and information demanded by a second request for documents and of
witnesses if requested.


 


14.3        Additional Approvals.  Each Party will cooperate and use
respectively all reasonable efforts to make all other registrations, filings
and applications, to give all notices and to obtain as soon as practicable all
governmental or other consents, transfers, approvals, orders, qualifications
authorizations, permits and waivers, if any, and to do all other things
necessary or desirable for the consummation of the transactions as contemplated
hereby.  Neither Party shall be required,
however, to divest or out-license products or assets or materially change its
business if doing so is a condition of obtaining approval under the HSR Act or
other governmental approvals of the transactions contemplated by this
Agreement.


 


14.4        Termination.  If a Report is required to be filed under the
HSR Act, either Party hereto may terminate this Agreement by written notice to
the other Party, if, within one hundred twenty (120) days after this Agreement
is signed by the Parties, approval of the transactions contemplated by this
Agreement under the HSR Act has not been obtained or the notice and waiting
period, as may be extended by the FTC, under the HSR Act has not expired
without adverse action regarding this Agreement or the transactions
contemplated hereby.  If this Agreement
is terminated pursuant to this Section 14.4, then, notwithstanding
any provision in this Agreement to the contrary, neither Party hereto shall
have any further obligation to the other Party with respect to the subject
matter of this Agreement.


 


15.          COVENANTS.  From and after the Effective Date, each party covenants as follows:


 


15.1        Novo Covenants. 
Novo agrees to not take any affirmative action, by itself or via a Third Party, to
contest, limit or in any manner diminish the scope of Neose’s issued patents in
any Nation or Region, or any of Neose’s current or future pending patent
applications, each to the extent claiming Neose Intellectual Property, in any
National or Regional Patent Office, and particularly agrees without limitation:


 


15.1.1     Not to provoke an interference, or
participate in an interference initiated by the United States Patent and
Trademark Office (the “USPTO”) or file any application, or
claim in any application under prosecution before the USPTO, any claim that
could reasonably be used to provoke an interference, against any Neose patent
application or patent to the extent that such patent or patent application includes
claims relating to Neose Intellectual Property, and further agrees to withdraw
from prosecution any claim in a patent application owned or controlled by Novo


 






******   — Material has been omitted and filed
separately with the Commission.


 


36

















 


upon which an examiner in the USPTO proposes to base such
an interference.  Novo
shall ensure that this covenant is binding on any assignee, purchaser, or
transferee of a Novo Patent Right that could be used to provoke an interference
with any of Neose’s current or future pending patent applications, each to the
extent claiming Neose Intellectual Property.


 


15.1.2     Not to initiate or participate in
any ex parte or inter partes
reexamination proceeding before the USPTO for any Neose patent including claims
relating to Neose Intellectual Property.


 


15.1.3     Not to initiate or participate in
any opposition before any National or Regional Patent Office against any Neose
patent including claims relating to Neose Intellectual Property.


 


15.1.4     Not to file any third party
observation or participate in any filing of a third party observation in any
National or Regional Patent Office against any Neose patent application to the
extent that such patent application includes claims relating to Neose
Intellectual Property.


 


15.2        Neose
Covenants.  Neose covenants that, to the extent that any
Carved Factor VIII Claims are subject to terminal disclaimers over any Neose
Patent Rights, Neose shall not assign, sell, or otherwise transfer such Carved
Factor VIII Claims and such Neose Patent Rights in a manner resulting in
separation of ownership between such Carved Factor VIII Claims and such Neose
Patent Rights.  Neose shall ensure that this
covenant is binding on any assignee, purchaser, or transferee of a Neose Patent
Right, to the extent such assigned, purchased or transferred Patent Right
contains any Carved Factor VIII Claims.


 


16.          MUTUAL COOPERATION


 


16.1        Novo shall use reasonable
commercial efforts to notify Neose of, and to provide to Neose for review and
comment, at least ten (10) days prior to filing, all patent claims arising
out of, enabled by, to Novo’s knowledge infringing or otherwise covering the
Neose Technology or Neose Improvements to be filed by Novo.


 


16.2        Novo
shall use reasonable commercial efforts to fully disclose to Neose all pending
patent applications of which it has knowledge that are based on the Novo
Materials and would support any Neose License Claims.


 


17.          MISCELLANEOUS


 


17.1        Force Majeure.  Any delays in or failures of performance by
either Party under this Agreement (other than failure to pay amounts due) shall
not be considered a breach of this Agreement if and to the extent caused by
occurrences beyond the reasonable control of the


 






******   — Material has been omitted and filed
separately with the Commission.


 


37

















 


Party affected, including but not limited to: acts of
God, earthquake, new regulations or laws of any government, strikes or other
concerted acts of workers; fire, floods, explosions; riots; wars; rebellion;
and, sabotage, and any time for performances under this Agreement shall be
extended by the time of delay reasonably occasioned by such occurrence.  Each Party agrees to notify the other
promptly of any factor, occurrence or event coming to its attention that may
affect its ability to meet its obligations under this Agreement.


 


17.2        Notices.  Any notice, consent or report (each, a “Notice”) required or permitted to be given by either Party
under this Agreement shall be in writing and shall be either personally
delivered or sent by facsimile (confirmed by internationally-recognized express
courier), or by internationally-recognized express courier (such as Federal
Express or DHL), to the other Party at its address set forth below, or such new
address as may from time to time be supplied under this Agreement by a
Party.  Except as otherwise set forth in
this Agreement, any Notice shall be effective upon receipt by the
addressee.  Provided that all postage or
delivery charges are prepaid in full by the sender and the Notice has been
addressed as set forth in this Agreement:


 


17.2.2       if such Notice is sent by facsimile (confirmed by internationally
recognized express courier which includes a copy of the report showing the date
and time of transmission), then the Notice shall be deemed to be received upon
transmission (if received on a business day) or the next business day following
transmission; and


 


17.2.3       if such Notice is sent by internationally-recognized express courier,
then the Notice shall be deemed to be received two (2) business days after
deposit with the courier service.


 


	
  If to Neose:

  
	
   

  	
   

  
	
   

  	
  Neose Technologies, Inc.

  
	
   

  	
  102 Rock Road

  
	
   

  	
  Horsham, PA 19044

  
	
   

  	
  Attention: General Counsel

  
	
   

  	
  Fax: 215-315-9200

  
	
   

  	
   

  
	
  If to Novo:

  
	
   

  	
   

  
	
   

  	
  Novo Nordisk
  A/S

  
	
   

  	
  Novo Allé

  
	
   

  	
  2880
  Bagsvaerd

  
	
   

  	
  Denmark

  
	
   

  	
  Attention: Vice President, Business
  Development

  
	
   

  	
  Fax:
  011-45-4442-1830

  
	
   

  	
   

  
	
   

  	
  With a copy to the same address:

  
	
   

  	
  Attention: General Counsel

  
	
   

  	
  Fax: 011-45-4498-0670

  



 






******   — Material has been omitted and filed
separately with the Commission.


 


38






 










 


17.3                        Governing Law. 
This Agreement and any controversy, claim or dispute arising under this
Agreement shall be governed by, and construed in accordance with, the laws of
the Commonwealth of Pennsylvania, United States of America, without regard to
the conflicts of law principles of any jurisdiction.


 


17.4                        U.S. Export Laws and Regulations. 
The Parties hereby acknowledge that their rights and obligations under
this Agreement may be subject to the laws and regulations of the United States
of America relating to the export of products and technical information.  Without limitation, each Party shall comply,
and assist the other Party in complying, with all such laws and regulations.


 


17.5                        Assignment


 


17.5.1              Consent of Other Party. 
Neither Party may assign any of its rights or obligations under the
Agreement, in whole or in part, by operation of law or otherwise, without the
prior written consent of the other Party, which consent shall not be
unreasonably withheld, provided that either Party may assign (i) any of
its rights or obligations under this Agreement in any country to any of its
Affiliates, for so long as they remain Affiliates, and (ii) all of its
rights or obligations under this Agreement in connection with the merger or
similar reorganization or sale of all or substantially all of its assets or a
sale of that part of its business relating to the subject matter of the
Agreement.  A Party shall notify the
other Party in writing upon making such assignment.


 


17.5.2              Certain Assignments by Neose. 
In the event that Neose assigns all of its rights or obligations under
this Agreement in connection with the merger or similar reorganization or sale
of all or substantially all of its assets or a sale of that part of its
business relating to the subject matter of this Agreement, Novo may, within the
thirty (30)-day period following receipt of notice from Neose of such
assignment, elect to proceed under this Section 17.5.2 with respect
to the provision of any reports required under this Agreement and/or other  disclosure of Confidential Information by
Novo hereunder.  Novo shall make such
election by notice in writing addressed to Neose and its successor at the
address of Neose set forth in Section 17.2.3 (as amended).  From and after an election by Novo under this
Section 17.5.2, Novo shall be entitled to provide reports required
under this Agreement, and/or to provide any other Confidential Information
hereunder, to an independent certified public auditing firm selected by Neose’s
successor and reasonably acceptable to Novo, in lieu of providing such reports
and/or Confidential Information to Neose’s successor.  Such auditing firm shall report to Neose’s
successor only (i) whether or not the reports submitted by Novo are
accurate and conform to any related payments made to Neose’s successor and (ii) whether
or not, in respect of other matters relating to such reports and/or
Confidential Information, Novo has complied with its obligations under this
Agreement.  Novo shall be responsible for
and promptly shall pay all fees and expenses of the auditing firm in connection
with its services rendered in accordance with this Section 17.5.2.


 


17.5.3              Binding Effect. 
Any purported assignment in violation of this Section 17.5
shall be null and void.  This Agreement
shall bind and inure to the benefit of each Party and its respective permitted
successors and assigns.


 






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17.6                        Amendments. 
No change, modification, extension, termination or waiver of the
Agreement, or any of the provisions in this Agreement contained, shall be valid
unless made in writing and signed by duly authorized representatives of the
Parties to this Agreement.


 


17.7                        Independent Contractors. 
The Parties to this Agreement are acting as independent contractors and
shall not be considered partners, joint venturers or agents of the other.  Neither Party shall have the right to act on
behalf of, or to bind, the other.


 


17.8                        Severability. 
The provisions of this Agreement are intended to be severable.  If any one or more of the provisions of this
Agreement is or becomes invalid, is ruled illegal by a court of competent
jurisdiction or is deemed unenforceable under the current applicable law from
time to time in effect during the Term, it is the intention of the Parties that
the remainder of the Agreement shall not be affected thereby and shall continue
to be construed to the maximum extent permitted by law at such time.  It is further the intention of the Parties
that in lieu of each such provision which is invalid, illegal, or
unenforceable, there shall be substituted or added as part of this Agreement by
such court of competent jurisdiction or any arbitrator(s) appointed
pursuant to Section 13.2, a provision which shall be as similar as
possible, in economic and business objectives as intended by the Parties to
such invalid, illegal or unenforceable provision, but shall be valid, legal and
enforceable.


 


17.9                        Waiver. 
The waiver by either Party to this Agreement of any right under this
Agreement or the failure to perform or of a breach by the other Party shall not
be deemed a waiver of any other right under this Agreement or of any other
breach or failure by said other Party whether of a similar nature or otherwise.


 


17.10                 No Third Party Beneficiaries. 
Each of Neose and Novo intend that only Neose and Novo will benefit
from, and are entitled to enforce the provisions of, this Agreement and that no
Third Party beneficiary is intended under this Agreement.


 


17.11                 Descriptive Headings; Section and
Exhibit References.  The headings of the several
sections of this Agreement are intended for convenience of reference only and
are not intended to be a part of or to affect the meaning or interpretation of
this Agreement.  All references in this
Agreement to a Section or Exhibit shall be interpreted as references
to the respective Section or Exhibit of this Agreement unless the
context requires otherwise.


 


17.12                 Counterparts. 
The Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.


 


17.13                 Entire Agreement. 
This Agreement, including all exhibits to this Agreement (the “Attachments”), embodies the entire understanding between
the Parties and supersedes any prior understanding and agreements between and
among them respecting the subject matter of this Agreement, including the
Original Agreement, except as otherwise provided herein.  There are no representations, agreements,
arrangements or understandings, oral or written, between the Parties to this
Agreement relating to the subject matter of this Agreement, which are not fully
expressed in this Agreement.  If any
provisions of any such Attachment conflict with any provisions set forth in
this Agreement, the provisions of this Agreement shall take precedence.  The Parties acknowledge and agree that the
Mutual Nondisclosure Agreement 


 






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remains in full force and effect with respect to any and all subject
matter other than the subject matter of this Agreement, the Factor VIIa
Agreement, or the Factor IX Agreement.


 


17.14                 Termination of Original Agreement.  The Original Agreement is hereby terminated,
effective as of the Effective Date, except that (i) the provisions of the
Amendments relating to payments previously made or retained by the Parties and (ii) any
provisions of the Original Agreement that by their terms survive termination,
are agreed by the Parties to survive termination of the Original Agreement and
execution of this Agreement, and shall remain in full force and effect until
expiration of the period, if any, specified in the Original Agreement.


 


IN WITNESS
WHEREOF, the undersigned Parties, acting through their duly authorized
representatives, have executed this Agreement in multiple counterparts.


 


NEOSE TECHNOLOGIES, INC.


 


 


	
  By:

  	
  /s/ George J. Vergis

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
  George J. Vergis, Ph.D.

  	
   

  
	
   

  	
   

  	
   

  
	
  Title:

  	
  President & CEO

  	
   

  



 


 


NOVO NORDISK A/S


 


 


	
  By:

  	
  /s/ Terje Kalland

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
  Terje Kalland

  	
   

  
	
   

  	
   

  	
   

  
	
  Title:

  	
  Senior Vice President

  	
   

  



 






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Exhibits Index


 


 


	
  Exhibit 1.21

  	
   

  	
  M1 Profile – Parameters for
  Candidate Selection for New Factor VIII Product

  
	
   

  	
   

  	
   

  
	
  Exhibit 1.27

  	
   

  	
  Novo Patents Rights relevant to
  Neose License Claims

  
	
   

  	
   

  	
   

  
	
  Exhibit 1.28

  	
   

  	
  Neose Patents as of the date of
  this Agreement

  
	
   

  	
   

  	
   

  
	
  Exhibit 2.2

  	
   

  	
  Work Plan

  
	
   

  	
   

  	
   

  
	
  Exhibit 5.1.3

  	
   

  	
  Required Agreement for Certain
  Proposed Sublicensees

  



 






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Exhibit 1.21


 


******


 






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Exhibit 1.27


 


******


 






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Exhibit 1.28


 


******


 






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Exhibit 2.2


 


******


 






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Exhibit 5.1.3


 


NEOSE TECHNOLOGIES, INC.


 


 


 


FORM OF REQUIRED AGREEMENT FOR PROPOSED
SUBLICENSEES


 


 


This CONFIDENTIALITY AGREEMENT (this “Agreement”) is made as of this       
day of                 ,
200  , by and between Neose Technologies, Inc., a Delaware
corporation (“Neose”), and                                         ,
a                     
corporation (“Recipient”).


 


BACKGROUND


 


Neose has developed and continues to develop
proprietary technologies and related know-how for the glycosylation, design and
remodeling of proteins, peptides and antibodies, including, but not limited to
its GlycoAdvanceTM, GlycoPEGylationTM and GlycoConjugationTM
technologies (collectively, the “Technology”).  Pursuant to a Research, Development and
License Agreement dated               ,
2003 (the “License Agreement”), Neose has
granted Novo Nordisk A/S, a Danish corporation, and Novo Nordisk Health Care
AG, a Swiss corporation (collectively, “Novo”), certain
exclusive worldwide rights under the Technology throughout the world, including
certain rights to sublicense.  Novo
desires to sublicense to Recipient certain rights granted to Novo under the
License Agreement.  Novo, therefore,
desires to disclose to Recipient confidential and proprietary information,
which is a part of the Technology and is considered valuable by Neose.  As a condition to Novo disclosing such
confidential and valuable proprietary information to Recipient, Recipient is
entering into this Agreement for Neose’s benefit.


 


NOW, THEREFORE, in consideration of the foregoing
premises and in consideration of Novo disclosing Neose’s confidential and
proprietary information to Recipient, and intending to be legally bound hereby,
Recipient agrees as follows:


 


1.                                      Definitions


 


1.1                               “Confidential Information” means any and all proprietary or
confidential information of Neose disclosed to Recipient, including, without limitation,
all technical data, trade secrets or know-how, including, but not limited to,
research, product plans, products, service plans, services, customer lists and
customers, markets, software, developments, inventions, processes, formulas,
technology, designs, drawings, engineering, marketing, distribution and sales
methods and systems, sales and profit figures, finances and other business
information disclosed to Recipient related to Neose, either directly or
indirectly, in writing, orally or by drawings or inspection of documents or
other tangible property.  The fact that a
given piece of information is marked or identified as confidential or
proprietary shall conclusively indicate 


 






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that such information is
considered Confidential Information, but the failure to so mark information
shall not conclusively determine that such information was or was not
considered Confidential Information.


 


1.2                               “Neose Know-How” 
means any and all formulae, procedures, processes, methods, designs,
know-how, show-how, trade secrets, discoveries, inventions (whether or not
patentable), patent applications, licenses, software and source code, programs,
prototypes, designs, discoveries, techniques, methods, ideas, concepts, data,
engineering and manufacturing information, electronic control circuits,
specifications, diagrams, drawings, schematics, blueprints and parts lists and
other proprietary information, rights and works of authorship, whether or not
reduced to writing, controlled by Neose and relating to the Technology


 


1.3                               “Neose Patents” means all patents and patent
applications (including all corresponding foreign patents and patent
applications, all divisions, continuations, continuations-in-part, reissues,
renewals, extensions and additions to any such patents or patent applications)
relating to the Technology licensed by Neose to Novo under the License
Agreement.


 


1.4                               “Neose Technology” means the Neose Know-How and Neose
Patents.


 


1.5                               “Person” means an individual, corporation,
partnership, trust, business trust, association, joint stock company, joint
venture, syndicate, sole proprietorship, unincorporated organization,
government, governmental agency, authority or instrumentality, or any other
form of entity not specifically listed in this Agreement.


 


1.6                               “Product” means any of the “Novo Materials” (as
defined in the License Agreement modified by using the Neose Technology.


 


1.7                               “Sublicense Agreement” means the agreement under which Novo
sublicenses to Recipient certain rights granted by Neose to Novo under the
License Agreement.


 


1.8                               “Third Party” means any Person other than Recipient,
Neose or Novo.


 


2.                                      Non-Disclosure;
Non-Use; Reasonable Care


 


2.1                               Non-Disclosure. 
Without the prior written consent of an authorized officer of Neose,
Recipient shall not, directly or indirectly, disclose to any Third Party any
Confidential Information or Neose Know-How.


 


2.2                               Non-Use. 
Without the prior written consent of an authorized officer of Neose, Recipient
shall not, directly or indirectly, use any of the Confidential Information or
Neose Technology for its own benefit or for the benefit of any Third Party.


 


2.3                               Reasonable Care. 
Recipient shall take all reasonable measures to protect the secrecy of,
and avoid the unauthorized disclosure or use of, the Confidential Information
and Neose Technology, including, without limitation, the following:  (i) Recipient shall exercise the highest
degree of care that Recipient uses to protect Recipient’s own confidential and
proprietary 


 






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information of a similar nature; (ii) Recipient shall disclose
Confidential Information and/or Neose Know-How only to its employees and
contractors who have a need to know; and (iii) Recipient shall require
anyone who has access to any of the Confidential Information and/or Neose
Know-How to sign or be a party to an effective agreement with Recipient,
applicable to the Confidential Information and Neose Know-How, containing
provisions that are substantially similar to the terms of this Agreement.  Recipient shall notify Neose in writing of
any disclosure, misuse or misappropriation of any Confidential Information or
Neose Technology that may come to Recipient’s attention.


 


3.                                      Acknowledgements.  Recipient
acknowledges and agrees that:  (i) this
Agreement is necessary for the protection of the legitimate business interests
of Neose; (ii) the execution of this Agreement by an authorized
representative of Recipient and delivery of this Agreement to Neose is a
mandatory condition precedent to Novo disclosing any Confidential Information
and any information concerning the Neose Technology to Recipient, without which
Neose would not permit Novo to disclose such information; (iii) neither
Neose nor Novo has granted to Recipient any rights under the Neose Technology
in any manner; and (iv) because of the unique nature of the Confidential
Information and Neose Technology and its broad applicability to the manufacture
and remodeling of glycoproteins, Neose will not have an adequate remedy at law
if Recipient breaches any term of this Agreement.


 


4.                                      Return of Materials.  Upon the
earlier of termination of Novo’s license to the Neose Technology under the
License Agreement or termination of the Sublicense Agreement, Recipient
shall:  (i) discontinue all use of
the Confidential Information and Neose Technology; (ii) destroy any and
all items in its possession containing any Confidential Information or Neose
Technology; and (iii) certify in writing to Neose, within ten (10) days
after Neose’s request therefor, that Recipient has taken all actions described
in this Section 4.


 


5.                                      Intellectual
Property


 


5.1                               Ownership Rights. 
All right, title and interest under patent, copyright, trade secret and
trademark law and any other intellectual property or other law (collectively, “Ownership Rights”), in and to the Confidential Information
and Neose Technology shall remain at all times with Neose.  Any and all Ownership Rights to developments,
discoveries, inventions, additions, amendments, modifications, ideas,
processes, methods, compositions, formulae, techniques, information and data,
whether or not patentable, relating to the Neose Technology, which is made,
conceived or reduced to practice by Neose, Novo or Recipient or any combination
of them (“Neose Improvements”) shall be owned by
Neose and shall be deemed to part of the Neose Technology for all purposes.


 


5.2                               Assignment. 
To the extent that Recipient may retain any Ownership Rights in any
Neose Improvements, Recipient hereby irrevocably assigns and transfers to Neose
any and all such Ownership Rights, in perpetuity or for the longest period
otherwise permitted by law, without the necessity of further consideration, and
Neose shall be entitled to receive and hold in its own name all such Ownership
Rights.  With respect to any Ownership
Rights that Recipient may assign and transfer to Neose under this Section 5.2,
at the request of Neose, and at Neose’s 


 






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expense, either before or after termination of this Agreement,
Recipient shall assist Neose in acquiring and maintaining patent, copyright,
trade secret and trademark protection upon, and confirming Neose’s title in and
to, any such Ownership Rights.  Recipient’s
assistance shall include, but shall not be limited to, signing all
applications, and any other documents and instruments for patent, copyright and
any other proprietary rights, cooperating in legal proceedings, and taking any
other actions considered necessary or desirable by Neose.  For the purpose of facilitating the above
assignment, Recipient agrees that any and all employees and contractors employed
or engaged by Recipient and providing any service in connection with the use of
the Neose Technology, prior to providing such service, shall have agreed in
writing to covenants consistent with Recipient’s covenants set forth in this Section 5.2


 


6.                                      Exceptions.  The
non-disclosure obligations with respect to Confidential Information and Neose
Know-How set forth in Section 2.1 shall not apply to any information
that:  (i) at the time of disclosure
by or on behalf of Novo or Neose to Recipient is in, or after disclosure by or
on behalf of Novo or Neose becomes part of, the public domain through no
improper act on the part of Recipient or on the part of any of Recipient’s
employees, independent contractors, advisors or consultants; (ii) is
disclosed, published or disseminated by Neose without any confidentiality
constraints; (iii) was in Recipient’s possession free of any obligation of
non-disclosure or non-use at the time of disclosure to Recipient, as shown by
written evidence; (iv) Recipient receives from a Third Party free of any
obligation of non-disclosure or non-use, but only if such Third Party had no
direct or indirect obligation to Neose not to disclose such information; (v) was
developed by Recipient independent of information received hereunder, as shown
by  its written records; or (vi) subject
to Section 7, is required to be disclosed by law or pursuant to legal,
judicial or administrative process.


 


7.                                      Notice of Required
Disclosure.  If Recipient is required by judicial or
administrative process to disclose any Confidential Information or Neose
Know-How, then Recipient shall promptly notify Neose and, before disclosing
such Confidential Information or Neose Know-How, allow Neose a reasonable time
to oppose such process.


 


8.                                      Successors; Assignment.  This Agreement
shall be binding upon Recipient and Recipient’s successors and assigns and
inure to the benefit of Neose and its successors and assigns.  Recipient may not assign its rights or
delegate its obligations under this Agreement, in whole or in part, except with
the prior written consent of Neose, which consent shall not be unreasonably
withheld.  Neose may assign this
Agreement without seeking or obtaining Recipient’s consent.


 


9.                                      Governing Law.  This Agreement
and any controversy, claim or dispute arising under this Agreement shall be
governed by, and construed in accordance with the laws of the Commonwealth of
Pennsylvania, United States of America, without regard to the conflicts of law
principles of any jurisdiction.


 


10.                               Remedies.  In addition to
any other remedies that may be available, at law, in equity or otherwise, Neose
shall be entitled to obtain injunctive relief to enforce the provisions of this
Agreement without necessity of posting bond.


 






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11.                               Entire Agreement.  This Agreement
contains the entire agreement and understanding relating to the subject matter
hereof and merges and supersedes all prior discussions, agreements and
understandings.  This Agreement may not
be changed or modified, except in a writing signed by both Neose and
Recipient.  The failure or delay of Neose
to exercise any right under this Agreement shall not be deemed a waiver of any
rights under this Agreement.


 


 


IN WITNESS WHEREOF, each party has caused its
authorized representative to execute this Agreement as of the date first
written above.


 


 


	
  NEOSE TECHNOLOGIES, INC.

  	
   

  	
  [INSERT NAME OF RECIPIENT]

  



 


 


	
  By:

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
  Title:

  	
   

  



 






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