exv10w9



 



EXHIBIT 10.9


LICENSE AGREEMENT



     THIS LICENSE AGREEMENT (the “Agreement”), effective as of February 1, 1998
(the “Effective Date”), is entered by and between Asahi Chemical Industry Co.,
Ltd., with a principal place of business at 5-13, Shibaura 4-Chome, Minato-ku
Tokyo, 108, Japan (“Asahi”), and GenVec, Inc. with a principal place of
business at 12111 Parklawn Drive, Rockville, Maryland (“GenVec”).


BACKGROUND



     A.     Asahi owns certain Patent Rights (as defined below) relating to tumor
necrosis factor alpha (TNF); and


     B.     GenVec desires to obtain a license under the Patent Rights, and Asahi
desires to grant such a license to GenVec, on the terms and conditions herein.
NOW, THEREFORE, Asahi and GenVec agree as follows:



	1.	 	DEFINITIONS



     1.1 “AFFILIATE” means any corporation or other entity which is directly
or indirectly controlling, controlled by or under the common control with
GenVec. For the purpose of this Agreement, “control” shall mean the direct or
indirect ownership of at least fifty percent (50%) of the outstanding shares or
other voting rights of the subject entity to elect directors, or if not meeting
the preceding, any entity owned or controlled by or owning or controlling at
the maximum control or ownership right permitted in the Territory.


     1.2 “CONFIDENTIAL INFORMATION” shall mean (i) any proprietary or
confidential information or material in tangible form disclosed hereunder that
is marked as “Confidential” at the time it is delivered to the receiving party,
or (ii) proprietary or confidential information disclosed orally hereunder
which is identified as confidential or proprietary when disclosed and such
disclosure of confidential information is confirmed in writing within thirty
(30) days by the disclosing party.


     1.3 “CONTROL” means possession of the ability to grant the license
provided for herein without violating the terms of any agreement or other
arrangement with a third party.


     1.4 “FIELD” means all gene therapy (IN VIVO and EX VIVO) applications.


     1.5 “LICENSED PRODUCT” means any product which is within the scope of an
issued Valid Claim or was within the scope of an issued Valid Claim.


[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.


 






 


     1.6 “NET SALES” means the gross revenues actually received by GenVec or
its sublicensees from sales of Licensed Products, less (i) normal and customary
rebates, and cash and trade discounts, actually taken, (ii) sales, use and/or
other excise taxes or duties actually paid, (iii) the cost of any packages and
packing, (iv) insurance costs and outbound transportation charges prepaid or
allowed, (v) import and/or export duties actually paid, and (vi) amounts
allowed or credited due to returns.


     1.7 “PATENT RIGHTS” means (i) U.S. patent application Serial No. * (filed
*) and U.S. Patent No. *; (ii) all patent applications and patents which claim
improvements to the subject matter of (i) above; (iii) all divisions,
continuations, continuations-in-part, and substitutions of (i) and (ii) above;
and (iv) all U.S. patents issuing on any of the preceding applications,
including extensions, reissues, and re-examinations; in each case, which is
owned, in whole or part, or Controlled by Asahi.


     1.8 “PHASE I”, “PHASE II“AND “PHASE III” shall mean Phase I, Phase II, and
Phase III clinical trials, respectively, in each case as prescribed by the U.S.
Food and Drug Administration.


     1.9 “REGULATORY APPROVAL” shall mean approval by the U.S. Food and Drug
Administration (“FDA”) to market a Licensed Product.


     1.10 “TERRITORY” means the United States of America and its territories
and possessions.


     1.11 “VALID CLAIM” means (i) a claim of an issued and unexpired U.S.
patent included within the Patent Rights which has not been held unenforceable
or invalid by a court or other governmental agency of competent jurisdiction in
the Territory, and which has not been disclaimed or admitted to be invalid or
unenforceable through reissue or otherwise, or (ii) a claim of a pending U.S.
patent application within the Patent Rights.



	2.	 	LICENSE; OPTION



     2.1 GRANT TO GENVEC. Asahi hereby grants to GenVec a non-exclusive license
under the Patent Rights to make, have made, import, have imported, use, sell,
have sold, offer for sale and otherwise exploit the Licensed Products in the
Territory for use in the Field. If Asahi acquires the right to extend the
license granted herein to the Affiliates of GenVec, then Asahi shall promptly
notify GenVec and GenVec shall automatically have the right to extend the
license to any of its Affiliates. In the event GenVec extends the license
granted herein to any of its Affiliates, GenVec shall immediately notify Asahi
of the name of such Affiliate. The provisions of this Agreement shall be
binding on such Affiliate, and GenVec shall guarantee the Affiliate’s
performance of the obligations under this Agreement.


     2.2 *. Following the Effective Date, * during the term of this
Agreement.


     2.3 SUBLICENSES; RIGHT OF NEGOTIATION. At any particular time during the
term of the *, GenVec shall have the right to grant one sublicense of the rights
granted in Section 2.1 above, and if GenVec grants such a sublicense, GenVec
shall not itself practice its licensing rights so long as such


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sublicense remains in effect. In the event the foregoing agreement between
Asahi and * expires or is terminated, GenVec shall have the unrestricted right
to grant sublicenses. In the event GenVec grants a sublicense of the rights in
Section 2.1 above, GenVec shall promptly notify Asahi of the name of such
sublicensee. In the event that any existing or potential sublicensee of GenVec
wishes to acquire a non-exclusive license with respect to intellectual property
owned or Controlled by Asahi relating to * (or fragments or derivatives
thereof) or the use thereof, Asahi agrees to negotiate in good faith with
GenVec the terms and conditions of such a license.


     2.4 EXCLUSIVE OPTION. If GenVec has acquired any intellectual property
rights necessary to commercialize Licensed Products in *, and GenVec retains
the legal right to grant to Asahi an option to develop and commercialize
Licensed Products in *, then until the second anniversary of the Effective
Date, Asahi shall have an exclusive option to negotiate and enter into a
written agreement with GenVec with regard to a collaborative license
arrangement for the development and commercialization of Licensed Products in
*. The terms and conditions of such agreement shall be negotiated in good faith
by the parties commencing at such time as Asahi provides GenVec notice that
Asahi wishes to exercise its option.



	3.	 	CONSIDERATION



     3.1 LICENSE FEE. In partial consideration for the license granted
herein, GenVec shall pay to Asahi a license fee of * dollars ($*) within sixty
(60) days of the Effective Date. Such fee shall not be due if GenVec provides
notice of its intent to terminate the Agreement within such sixty (60) day
period.


     3.2 MILESTONE PAYMENTS. Unless the Agreement is terminated earlier,
within sixty (60) days following the first achievement by GenVec or a
sublicensee of the following milestones with respect to the first Licensed
Product in the Territory, GenVec shall pay Asahi one-time milestone payments,
as follows:



	 	 	 	 	 
	Event	 	Payment
	
	 	

	Initiation of Phase II clinical trials
	 	$	*	 
	Initiation of Phase III clinical trials
	 	$	*	 
	Regulatory Approval
	 	$	*	 



The payment under Section 3.1 above and the payments in this Section 3.2 shall
be nonrefundable.


     3.3 ROYALTIES.


          3.3.1 DURING PATENT TERM. In consideration of the license granted
herein, GenVec shall pay to Asahi a royalty of * percent (*%) of Net Sales of
Licensed Products which, but for the license granted herein would infringe an
issued and unexpired Valid Claim.



          3.3.2 AFTER PATENT TERM. In the event that all issued Valid Claims
covering a particular Licensed Product have expired, but royalties are still
due Asahi pursuant to Section 3.7,




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then the royalty due with regard to such Licensed Product shall be * percent
(*%) of Net Sales of such Licensed Product.


     3.4 THIRD PARTY ROYALTIES. GenVec and its sublicensee shall be
responsible for any payments due to third parties under licenses or similar
agreements entered by GenVec or its sublicensee relating to the manufacture,
use or sale of Licensed Products in the Territory. GenVec may offset any such
payments made by GenVec or its sublicensee to third parties against royalties
due Asahi pursuant to Section 3.3 above; provided Asahi shall have the right to
receive not less than * percent (*%) of the Net Sales of Licensed Products sold
by GenVec or its sublicensee, except as provided in Section 3.3.2.


     3.5 COMBINATION PRODUCTS. In the event that a Licensed Product is sold
in combination as a single product with another active ingredient, component or
other product whose manufacture, sale and use are not covered by a claim within
the Patent Rights for which the combination product is sold, Net Sales from
such sales for purposes of calculating the amounts due under Sections 3.3 above
shall be as reasonably allocated by GenVec between such Licensed Product and
such active ingredient, component or other product, based upon their relative
importance and proprietary protection.


     3.6 ONE ROYALTY. No more than one royalty payment shall be due with
respect to a sale of a particular Licensed Product. No multiple royalties shall
be payable because any Licensed Product, or its manufacture, sale or use is
covered by more than one Valid Claim. No royalty shall be payable under Section
3.3 above with respect to sales of Licensed Products among GenVec and its
sublicensee, nor shall a royalty be payable under this Article 3 with respect
to Licensed Products distributed for use in research and/or development, in
clinical trials or as promotional samples.


     3.7 ROYALTY TERM. Royalties due under this Article 3 shall be payable on
a Licensed Product-by-Licensed Product basis until the later of (i) the
expiration of the last-to-expire issued Valid Claim covering such Licensed
Product, or (ii) the twelfth anniversary of the Effective Date.



	4.	 	PAYMENTS; REPORTS AND RECORDS



     4.1 PAYMENTS; CURRENCY. GenVec agrees to pay all royalties due to Asahi
within * days after the last day of each half-calendar year in which they
accrue. All payments due hereunder shall be paid in United States dollars.


     4.2 TAXES. Any income or other tax that must be withheld on behalf of
Asahi with respect to the royalties owed pursuant to this Agreement shall be
deducted by GenVec from the royalties prior to remittance. Within * days after
the last day of each half-calendar year, GenVec shall furnish to Asahi evidence
of any such taxes withheld.


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     4.3 ROYALTY REPORTS. GenVec shall deliver to Asahi within * days after
the end of each half-calendar year in which Licensed Products are sold a report
setting forth in reasonable detail the calculation of the royalties payable to
Asahi for such half-calendar year, including the Licensed Products sold, the
Net Sales thereof, and all amounts received from sublicensees for sales of
Licensed Products. Such reports shall be Confidential Information of GenVec
subject to Article 6 herein.


     4.4 BOOKS AND RECORDS. GenVec shall maintain accurate books and records
which enable the calculation of royalties payable hereunder to be verified.
GenVec shall retain the books and records for each half-calendar year period
for * years after the submission of the corresponding report under Section 4.3
hereof. Upon * days prior notice to GenVec, independent accountants selected by
Asahi, reasonably acceptable to GenVec, after entering into a confidentiality
agreement with GenVec, may have access to GenVec’s books and records during
GenVec’s normal business hours at mutually agreed times to conduct a review or
audit once per calendar year, for the sole purpose of verifying the accuracy of
GenVec’s payments and compliance with this Agreement. The accounting firm shall
report to Asahi only whether there has been a royalty underpayment and, if so,
the amount thereof. Any such inspection or audit shall be at Asahi’s expense,
however, in the event an inspection reveals underpayment of * percent (*%) or
more in any audit period, GenVec shall pay the costs of the inspection. GenVec
shall promptly pay to Asahi any underpayment identified in such an audit which
amount is undisputed by GenVec, with interest from the date such amount(s) were
due at the prime rate reported by the Chase Manhattan Bank, New York, New York.



	5.	 	DILIGENCE



     GenVec agrees to use commercially reasonable diligent efforts to develop
and commercialize the Licensed Products and obtain such approvals as may be
necessary for the sale of the Licensed Products in the Territory. GenVec may
conduct such activities itself or through third parties.



	6.	 	CONFIDENTIALITY



     6.1 CONFIDENTIAL INFORMATION. Except as expressly provided herein, the
parties agree that, for the term of this Agreement and for * years thereafter,
the receiving party shall keep completely confidential and shall not publish or
otherwise disclose and shall not use for any purpose except for the purposes
contemplated by this Agreement any Confidential Information furnished to it by
the disclosing party hereto pursuant to this Agreement, except to the extent
that it can be established by the receiving party by competent proof that such
Confidential Information:


          (i) was already known to the receiving party, other than under an
obligation of confidentiality, at the time of disclosure;



          (ii) was generally available to the public or otherwise part of the public
domain at the time of its disclosure to the receiving party;




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          (iii) became generally available to the public or otherwise part of the
public domain after its disclosure and other than through any act or omission
of the receiving party in breach of this Agreement;



          (iv) was independently developed by the receiving party as demonstrated by
documented evidence prepared contemporaneously with such independent
development; or



          (v) was subsequently lawfully disclosed to the receiving party by a person
other than a party hereto.



     6.2 PERMITTED USE AND DISCLOSURES. Each party hereto may use or disclose
information disclosed to it by the other party to the extent such use or
disclosure is reasonably necessary in filing or prosecuting patent
applications, prosecuting or defending litigation, complying with applicable
governmental regulations or otherwise submitting information to tax or other
governmental authorities, conducting clinical trials, or making a permitted
sublicense or otherwise exercising its rights hereunder, provided that if a
party is required to make any such disclosure of another party’s Confidential
Information, other than pursuant to a confidentiality agreement, it will give
reasonable advance notice to the latter party of such disclosure and, save to
the extent inappropriate in the case of patent applications, will use its best
efforts to secure confidential treatment of such information prior to its
disclosure (whether through protective orders or otherwise). Notwithstanding
this Section 6.2 and Section 4.3 herein, Asahi may, subject to a
confidentiality agreement containing provisions at least as restrictive as
those herein, disclose to the Beckman Research Institute of the City of Hope,
as is reasonably necessary, the financial terms herein, the payments received
and the royalty reports made under this Agreement.


     6.3 CONFIDENTIAL TERMS. The parties agree to make a mutually agreed
press release regarding this Agreement promptly following the Effective Date.
Except as expressly provided herein, each party agrees not to disclose any
terms of this Agreement to any third party without the consent of the other
party; provided, disclosures may be made as required by securities or other
applicable laws, or to actual or prospective investors or corporate partners,
or to a party’s accountants, attorneys and other professional advisors.



	7.	 	REPRESENTATIONS AND WARRANTIES



     7.1 ASAHI. Asahi represents and warrants that: (i) it is a corporation
duly organized validly existing and in good standing under the laws of Japan;
and (ii) the execution, delivery and performance of this Agreement have been
duly authorized by all necessary corporate action on the part of Asahi; (iii)
it is the sole and exclusive owner or exclusive licensee of all right, title
and interest in the Patent Rights; (iv) it has the right to grant the rights
and licenses granted herein, and the Patent Rights are free and clear of any
lien, encumbrance or security interest; (v) it has not previously granted, and
will not grant during the term of this Agreement, any right, license or
interest in and to the Patent Rights, or any portion thereof, inconsistent with
the license granted to


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GenVec herein; and (vi) there are no threatened or pending actions, lawsuits,
claims or arbitration proceedings in any way relating to the Patent Rights.


     7.2 GENVEC. GenVec represents and warrants that: (i) it is a corporation
duly organized validly existing and in good standing under the laws of the
State of Delaware; and (ii) the execution, delivery and performance of this
Agreement have been duly authorized by all necessary corporate action on the
part of GenVec.


     7.3 EFFECT OF REPRESENTATIONS AND WARRANTIES. It is understood that if
the representations and warranties made by a party under this Article 7 are not
true and accurate, and the other party incurs damages, liabilities, costs or
other expenses as a result, the party making such representations and
warranties shall indemnify and hold the other party harmless from and against
any such damages, liabilities, costs or other expenses incurred as a result.



	8.	 	PROSECUTION AND ENFORCEMENT



     8.1 ASAHI’S RESPONSIBILITIES. Asahi shall have the sole right to control
the preparation, filing, prosecution and maintenance of the Patent Rights, and
any interference or opposition proceeding relating thereto, using patent
counsel of its choice and at its sole expense; provided, however, that Asahi
shall consult with GenVec regarding the prosecution of any such patent
applications by providing GenVec a reasonable opportunity to review and comment
on all proposed submissions to any patent office at least thirty (30) days
before submittal, and shall incorporate such comments as GenVec may reasonably
request. In addition, Asahi shall keep GenVec reasonably informed as to the
status of such patent applications by promptly providing GenVec copies of all
communications relating to such patent applications that are received from any
patent office.


     8.2 PATENT TERM EXTENSIONS. To the extent permitted by applicable law,
GenVec and Asahi shall jointly apply for patent term extensions of patent(s)
within the Patent Rights. If joint applications are not permitted, GenVec shall
have the right to file and diligently seek and obtain such extensions for
GenVec or its sublicensee, in GenVec’s name. Asahi agrees to provide reasonable
assistance to facilitate GenVec’s efforts to obtain any such extension.


     8.3 ENFORCEMENT. If either party hereto becomes aware that any Patent
Rights are being or have been infringed by any third party, such party shall
promptly notify the other party hereto in writing describing the facts relating
thereto in reasonable detail. Asahi shall have the initial right, but not the
obligation, to institute, prosecute and control any action, suit or proceeding
with respect to such infringement, including any declaratory judgment action
(each an “Action”), at its expense; using counsel of its choice. In the event
Asahi fails to initiate or defend any Action involving the Patent Rights within
three (3) months of receiving notice of any infringement, GenVec shall have the
right, but not the obligation, to initiate and control such an Action, at its
expense; provided, GenVec shall be entitled to offset any amount expended in
connection with such Action against up to fifty percent (50%) of royalties due
under Section 3.3. In any such event, Asahi shall cooperate reasonably with
GenVec in connection with any such Action, at GenVec’s expense; including


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without limitation, by joining such Action as a party if requested by GenVec.
Any amounts recovered by GenVec in such Action shall be used first to reimburse
Asahi and GenVec for the expenses incurred in connection with such Action and
any remainder shall be treated as Net Sales of Licensed Products pursuant to
Section 3.3.


     8.4 INFRINGEMENT CLAIMS. If the practice by GenVec of the license
granted herein results in any allegation or claim of infringement of an
intellectual property right of third party against GenVec, GenVec shall have
the exclusive right to defend any such claim, suit or proceeding, at its own
expense, by counsel of its own choice and shall have the sole right and
authority to settle any such suit; provided, however, Asahi shall cooperate
with GenVec, at GenVec’s reasonable request and expense, in connection with the
defense of such claim.



	9.	 	DISPUTE RESOLUTION



     Any dispute under this Agreement (except any dispute relating to the
validity or enforceability of any patent) which is not settled by mutual
consent shall be finally settled by binding arbitration. Any arbitration
initiated by GenVec shall be conducted in Tokyo and administered by the Japan
Commercial Arbitration Association, and any arbitration initiated by Asahi
shall be conducted in Washington, D.C., and administered by the American
Arbitration Association. In each case, the arbitrators shall apply UNCITRAL
rules and all claims, including counterclaims, shall be subject to resolution
by the same group of arbitrators. Any written evidence originally in a language
other than English shall be submitted in English translation accompanied by the
original or a true copy thereof. The costs of the arbitration (including
administrative and arbitrators’ fees), shall be shared equally by the parties,
and each party shall bear its own costs and attorneys’ and witness’ fees
incurred in connection with the arbitration. The decision and/or award rendered
by the arbitrator shall be written, final and non-appealable and may be entered
in any court of competent jurisdiction for a judicial recognition of the
decision and an order of enforcement.



	10.	 	INDEMNIFICATION



     10.1 INDEMNITY. GenVec shall indemnify, defend and hold harmless Asahi
and its directors, officers and employees (each an “Indemnitee”) from and
against any and all liabilities, damages, losses, costs or expenses (including
reasonable attorneys’ and professional fees and other expenses of litigation
and/or arbitration) (a “Liability”) resulting from a claim, suit or proceeding
brought by a third party against an Indemnitee, arising from or occurring as a
result of activities performed by GenVec or its sublicensees in connection with
the development, manufacture or sale of any Licensed Product, except to the
extent caused by the negligence or willful misconduct of Asahi.


     10.2 PROCEDURE. In the event that any Indemnitee intends to claim
indemnification under this Article 10 it shall promptly notify GenVec in
writing of such alleged Liability. GenVec shall have the sole right to control
the defense and settlement thereof. The Indemnitees shall cooperate with the
indemnifying party and its legal representatives in the investigation of any
action, claim or liability covered by this Article 10. The Indemnitee shall
not, except at its own cost, voluntarily


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make any payment or incur any expense with respect to any claim or suit without
the prior written consent of GenVec, which GenVec shall not be required to
give.



	11.	 	TERM AND TERMINATION



     11.1 TERM. The term of this Agreement shall commence on the Effective
Date, and unless earlier terminated as provided in this Article 11, shall
continue in full force and effect on a Licensed Product-by-Licensed Product
basis until there are no remaining royalty payment obligations with respect
thereto.


     11.2 TERMINATION FOR CAUSE. If either party materially breaches this
Agreement, the other party may elect to give the breaching party written notice
describing the alleged breach. If the breaching party has not cured such breach
within sixty (60) days after receipt of such notice, the notifying party will
be entitled, in addition to any other rights it may have under this Agreement,
to terminate this Agreement effective immediately; provided, however, if either
party receives notification from the other of a material breach and if the
party alleged to be in default notifies the other party in writing within
thirty (30) days of receipt of such default notice that it disputes the
asserted default, the matter will be submitted to arbitration as provided in
Article 9 of this Agreement. In such event, the nonbreaching party shall not
have the right to terminate this Agreement until it has been determined in such
arbitration proceeding that the other party materially breached this Agreement,
and the breaching party fails to cure such breach within ninety (90) days after
the conclusion of such arbitration proceeding.


     11.3 TERMINATION FOR INSOLVENCY. Either party may terminate this
Agreement if the other becomes the subject of a voluntary or involuntary
petition in bankruptcy or any proceeding relating to insolvency, receivership,
liquidation, or composition or the benefit of creditors, if that petition or
proceeding is not dismissed with prejudice within sixty (60) days after filing.


     11.4 PERMISSIVE TERMINATION. GenVec may terminate this Agreement with
respect to any patent application or patent within the Patent Rights with
thirty (30) days written notice to Asahi. GenVec shall have no right to
terminate this Agreement pursuant to this Section 11.4 after the expiration of
the Patent Rights.


     11.5 EFFECT OF TERMINATION.


          (A) ACCRUED RIGHTS AND OBLIGATIONS. Termination of this Agreement for any
reason shall not release any party hereto from any liability which, at the time
of such termination, has already accrued to the other party or which is
attributable to a period prior to such termination, nor preclude either party
from pursuing any rights and remedies it may have hereunder or at law or in
equity which accrued or are based upon any event occurring prior to such
termination.




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          (B) RETURN OF CONFIDENTIAL INFORMATION. Upon any termination of this
Agreement, each party shall promptly return to the other party all Confidential
Information received from the other party (except one copy of which may be
retained for archival purposes).



          (C) STOCK ON HAND. In the event this Agreement is terminated for any
reason, GenVec and its sublicensee shall have the right to sell or otherwise
dispose of the stock of any Licensed Product then on hand, subject to Articles
3 and 4.



          (D) SUBLICENSE. In the event of any termination of this Agreement, any
sublicense granted by GenVec shall remain in force and effect and shall be
assigned by GenVec to Asahi; provided, the financial obligations of any such
sublicensee shall be limited to the amounts GenVec is obligated to pay to Asahi
for the activities of such sublicensee under this Agreement.



     11.6 SURVIVAL. Sections 11.5 and 11.6 and Articles 4, 6, 7, 9, 10 and 12
of this Agreement shall survive termination of this Agreement for any reason.



	12.	 	MISCELLANEOUS



     12.1 GOVERNING LAW. This Agreement, and any proceeding subject to Article
10, shall be governed by and construed in accordance with the laws of the State
of New York, without reference to principles of conflicts of laws.


     12.2 INDEPENDENT CONTRACTORS. The relationship of the parties hereto is
that of independent contractors. The parties hereto are not deemed to be
agents, partners or joint venturers of the other for any purpose as a result of
this Agreement or the transactions contemplated thereby.


     12.3 ASSIGNMENT. The parties agree that their rights and obligations
under this Agreement shall not be delegated, transferred or assigned to a third
party without prior written consent of the other party hereto. This Agreement
shall be binding upon and inure to the benefit of the parties and their
successors and assigns.


     12.4 RIGHT TO DEVELOP INDEPENDENTLY. Nothing in this Agreement will
impair GenVec’s right to independently acquire, license, develop for itself, or
have others develop for it, intellectual property and technology performing
similar functions as the Patent Rights or to market and distribute Licensed
Products or other products based on such other intellectual property and
technology.


     12.5 NOTICES. Any required notices hereunder shall be given in writing by
certified mail or international express delivery service (e.g., DHL) at the
address of each party below, or to such other address as either party may
substitute by written notice. Notice shall be deemed served when delivered or,
if delivery is not accomplished by reason or some fault of the addressee, when
tendered.



	 	 	 
	If to Asahi:	 	
Asahi Chemical Industry Co., Ltd.



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5-13 Shibaura 4-Chome
	 	 	
Minato-ku Tokyo, 108, Japan
	 	 	
Attention: Dr. Tetsu Saito, General Manager
	 	 	
Licensing and Business Development Group
	If to GenVec:	 	
GenVec, Inc.
	 	 	
12111 Parklawn Drive
	 	 	
Rockville, Maryland 20852
	 	 	
Attention: President
	 	 	 
	with a copy to: Vice President, Corporate Development



     12.6 FORCE MAJEURE. Neither party shall lose any rights hereunder or be
liable to the other party for damages or losses (except for payment
obligations) on account of failure of performance by the defaulting party if
the failure is occasioned by war, strike, fire, Act of God, earthquake, flood,
lockout, embargo, governmental acts or orders or restrictions, failure of
suppliers, or any other reason where failure to perform is beyond the
reasonable control and not caused by the negligence, intentional conduct or
misconduct of the nonperforming party and such party has exerted all reasonable
efforts to avoid or remedy such force majeure; provided, however, that in no
event shall a party be required to settle any labor dispute or disturbance.


     12.7 ADVICE OF COUNSEL. GenVec and Asahi have each consulted counsel of
their choice regarding this Agreement, and each acknowledges and agrees that
this Agreement shall not be deemed to have been drafted by one party or another
and will be construed accordingly.


     12.8 APPROVALS. Each party shall be responsible, at its expense, for
obtaining any approvals from its own government which may be required under
applicable law, and shall use its best efforts to obtain all necessary
approvals as soon as possible after the execution of this Agreement.


     12.9 COMPLIANCE WITH LAWS. Each party shall furnish to the other party
any information requested or required by that party during the term of this
Agreement or any extensions hereof to enable that party to comply with the
requirements of any U.S. or foreign, state and/or government agency.


     12.10 LIMITATION OF LIABILITY. NEITHER PARTY SHALL BE LIABLE TO THE OTHER
FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES ARISING OUT OF
THIS AGREEMENT, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY.


     12.11 FURTHER ASSURANCES. At any time or from time to time on and after
the date of this Agreement, Asahi shall at the request of GenVec (i) deliver to
GenVec such records, data or other documents consistent with the provisions of
this Agreement, (ii) execute, and deliver or cause to be


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delivered, all such consents, documents or further instruments of transfer or
license, and (iii) take or cause to be taken all such actions, as GenVec may
reasonably deem necessary or desirable in order for GenVec to obtain the full
benefits of this Agreement and the transactions contemplated hereby.


     12.12 SEVERABILITY; WAIVER. In the event that any provisions of this
Agreement are determined to be invalid or unenforceable by a court of competent
jurisdiction, the remainder of the Agreement shall remain in full force and
effect without said provision. The parties shall in good faith negotiate a
substitute clause for any provision declared invalid or unenforceable, which
shall most nearly approximate the intent of the parties in entering this
Agreement. The failure of a party to enforce any provision of the Agreement
shall not be construed to be a waiver of the right of such party to thereafter
enforce that provision or any other provision or right.


     12.13 ENTIRE AGREEMENT; MODIFICATION. This Agreement sets forth the
entire agreement and understanding of the parties with respect to the subject
matter hereof, and supersedes all prior discussions, agreements and writings in
relating thereto. This Agreement may not be altered, amended or modified in any
way except by a writing signed by both parties.


     12.14 COUNTERPARTS. This Agreement may be executed in two counterparts,
each of which shall be deemed an original and which together shall constitute
one instrument.


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     IN WITNESS WHEREOF, Asahi and GenVec have executed this Agreement by their
respective duly authorized representatives.



	 	 	 	 	 
	
ASAHI CHEMICAL INDUSTRY
	 	GENVEC, INC. CO., LTD.
	 	 	
 	 	 
	By:	 	 	 	By:
	 	 	


	 	

	 	 	
Katsuaki Tuzuki	 	 
	 	 	
Managing Director & General Manager
	 	Print Name:
	 	 	 	 	

	 	 	
of Health Care Business Administration
	 	Title:
	 	 	 	 	





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