Exhibit 10.33


 


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 IX.  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 VIII (the “Factor VIII 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
IX Claims” shall mean any Potential Carved Factor IX
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 IX Product” means the parameters for candidate selection required
for PEG-F9 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): (i) 


 






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


 


4

















 


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 IX 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 FIX, 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 IX.


 


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 IX 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 IX 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 IX 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
Jakob Back 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         ******, paid on ******.


 






******   — Material has been
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10

















 


3.2.3         ****** upon the earlier of ****** of the ******
of the New Product ****** or ******.


 


3.2.4         ****** upon the first to occur of the ****** 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 VIII 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 VIII 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 mutually
agreeable, to negotiate and propose to the Parties the terms of amendment(s) to
the


 










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11

















 


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.


 


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


 










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


 






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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.


 






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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.


 






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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 IX 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 IX 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 IX
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 


 






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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 


 






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Section 5.1. 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 IX 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 


 






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


 






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


 


19














 


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 IX Claims and, as soon as is practicable thereafter, will agree on any
Carved Factor IX 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 IX 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 IX 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 IX Claims, Neose will, at Novo’s sole cost and
expense, with respect to any agreed-upon Carved Factor IX 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 IX Claims, claiming priority (each a “Carved Factor IX
Claim Application”), as appropriate, to one or
more pending Neose patent applications.


 


6.4.2.6    Each
Carved Factor IX 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 IX 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 IX Claims, and shall notify Novo
in writing of any oral communications regarding filed Carved Factor IX 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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separately with the Commission.


 


20

















 


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 IX 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 IX
Claims, and, (ii) inform Novo of any planned, non-written substantive
communication to such patent authority in connection with any Carved Factor IX
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
IX Claims.  Neose will include, in any
future-filed patent applications that could support Potential Carved Factor IX
Claims, any general Factor IX-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 IX 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 IX Claims.


 


6.4.2.11   Neose
shall not disclaim any subject matter in any Patent Right solely and
specifically reciting Carved Factor IX 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 IX 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 IX Claims. 
All of the activities undertaken by the Parties pursuant to this Section 6.4.2,
including the prosecution of all Carved Factor IX 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 IX 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


 






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


 


21

















 


Economic Area, or Switzerland).  Neose will not seek an extension of the term
of any Carved Factor IX 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 IX 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.


 






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


 


22

















 


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


 






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


 


23

















 


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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separately with the Commission.


 


24

















 


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 IX 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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separately with the Commission.


 


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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 IX 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 IX 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 IX 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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separately with the Commission.


 


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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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separately with the Commission.


 


27

















 


 


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 IX Claims are
subject to terminal disclaimers over any Neose Patent Rights, Neose shall not
assign, sell, or otherwise transfer such Carved Factor IX Claims and such Neose
Patent Rights in a manner resulting in separation of ownership between such
Carved Factor IX 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 IX
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.


 






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


 


39


















 


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


 






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


 


40

















 


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 VIII 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

  



 






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


 


41

















 


Exhibits Index




	
   

  	
   

  	
   

  	
   

  
	
  Exhibit 1.21

  	
   

  	
  M1 Profile – Parameters for
  Candidate Selection for New

  
	
   

  	
   

  	
  Factor IX 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

  	
   

  






 


42

















 


Exhibit 1.21


 


******


 










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


 





















 


Exhibit 1.27


 


******


 










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


 

















 


Exhibit 1.28


 


******


 










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


 





















 


Exhibit 2.2


 


******


 










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


 





















 


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 that such information is considered Confidential
Information, but the failure to so mark


 






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


 





















 


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
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)


 






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


 

















 


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 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


 






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


 

















 


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.


 






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


 

















 


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

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  



 






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