Exhibit
10.1


 


Transfer, Consent to Transfer,

Amendment and Assumption

of License Agreement


 


This
Transfer, Consent to Transfer, Amendment and Assumption of License Agreement (“Transfer &
Assumption Agreement”), effective as of August 31, 2005 (the “Effective
Date”), is entered into by and among New York University, a corporation
organized and existing under the laws of the State of New York (“Licensor”),
Collateral Therapeutics, Inc., a Delaware corporation (“Transferor”), and
Cardium Therapeutics, Inc., a Delaware Corporation (“Transferee”), each a
Party, collectively Parties hereto.


 


RECITALS


 


Whereas,
Licensor and Transferor previously entered into a license agreement with
respect to certain technology related to Fibroblast Growth Factor 4 (FGF-4) 
effective as of March 24, 1997, and including any subsequent
amendments thereto (referred to herein as the “License Agreement”);


 


Whereas,
Transferor and its affiliates have elected to pursue product development
efforts and product candidates other than those related to the License
Agreement;


 


Whereas,
Transferee is interested in pursuing certain research and development in the
cardiovascular field and, for this purpose and pending receipt of necessary
funding as described below, wishes to acquire the rights of Transferor under
the License Agreement, and is willing to accept the corresponding obligations,
thereby completely assuming both the rights and the obligations of Transferor
with respect to the License Agreement; and


 


Whereas,
the Parties jointly agree to transfer the entirety of Transferor’s rights and
obligations under the License Agreement to Transferee, amending the License
Agreement to reflect such transfer;


 


AGREEMENT


 


Now,
therefore, in consideration of the promises and covenants contained herein, and
other good and valuable consideration, the receipt of which is hereby
acknowledged, and intending to be legally bound, the Parties agree as follows:


 


1.             Qualified Financing as Condition
Precedent to Transfer of Rights and Assumption of Obligations; Termination of
License Agreement in the Event of Non-Occurrence of Transfer and Assumption.  The transfer of rights and assumption of
obligations under the License Agreement as contemplated hereby (and the
amendments as provided below), shall be conditioned upon, and shall occur upon
the date of, the closing of a qualified financing pursuant to which Transferee
has received funding of at least Twenty Million U.S. Dollars or its substantial
equivalent (a “Qualified Financing”). 
The date of closing of the Qualified Financing and coincident transfer
of rights and obligations under this Transfer & Assumption Agreement
shall be referred to herein as the “Transfer Date”.  The occurrence of the transfer of rights and
obligations in connection with the Qualified Financing shall be confirmed to
Licensor by completion and delivery by fax or mail of a “Confirmation of
Transfer and Assumption of Rights” substantially in the form as attached hereto
as Appendix A but which has been executed by Transferor and Transferee on or promptly
following the Transfer Date.  Since, in
the absence of the proposed Transfer and Assumption, Transferor would otherwise
have provided or provide


 





















 


notice
to Licensor of its election to terminate the License Agreement (in accordance
with Section 15 of the License Agreement), the Parties hereby agree that in
the event that the Transfer Date (and coincident Transfer and Assumption) does
not occur by November 30, 2005 (the “Termination Date”), then the License
Agreement may thereafter be terminated by Licensee effective immediately upon
Licensee’s written notice of such termination to Licensor.


 


2.             Transfer and Assumption as of
Transfer Date, Negation of Agency. 
Effective on and from the Transfer Date, Transferor hereby transfers,
and Transferee hereby assumes, the entirety of the Transferor’s ongoing rights,
title and interest in, and the entirety of the Transferor’s ongoing  obligations arising from, the License
Agreement (which transfer and assumption are referred to herein as the “Transfer
and Assumption”).  Neither Transferee nor
Transferor are agents or affiliates of the other and, following this Transfer
and Assumption, Transferor shall remain solely responsible for satisfaction of
any and all obligations arising prior to the Transfer Date, but Transferee
shall become solely responsible for satisfaction of any and all obligations
arising on or after the Transfer Date. 
The Parties agree that there are no outstanding material defaults under
the License Agreement as of the Effective Date. 
Until the Transfer Date, the rights and obligations of the Transferor
remain in effect.  After the Transfer
Date the Transferor shall have no rights under the License Agreement.


 


3.             Amendment. The License
Agreement is amended as follows, effective as of the Transfer Date (as
described above):


(i) in
the first paragraph, the party “COLLATERAL THERAPEUTICS, INC. (hereinafter “CORPORATION”) a corporation organized under the laws of
the state of California, having its principal office at 9360 Towne Center
Drive, San Diego, California 92121” is replaced as licensee by “CARDIUM THERAPEUTICS, INC., (hereinafter “CORPORATION”) a Delaware
corporation having a principal place of business at 11622 El Camino Real, Suite 300,
San Diego, California 92130”;


(ii) 
in Section 10(a), items (ii) and (iii) are replaced by the
following: “(ii) preparing and filing an application for marketing
approval of a Licensed Product in the United States, Canada, or a country
within the European Union by December 31, 2010; and (iii) obtaining
marketing approval of a Licensed Product in the United States, Canada, or a
country within the European Union by December 31, 2012.”;


(iii) 
in Section 20(e), the address for notice to CORPORATION, shall be replaced
with the following: “Cardium Therapeutics, Inc., 11622 El Camino Real, Suite 300,
San Diego, CA 92130, Attn: General Counsel.”


 


4.             Consent.  Licensor hereby consents to the Transfer and
Assumption and to Amendment of said License Agreement as described herein.


 


5.             Authority.  Each Party represents and warrants to the other that, as of the
Effective Date and as of the Transfer Date, it: (1) has and will have the
corporate power and authority and the legal right to enter into this Agreement
and to perform its obligations hereunder; (2) has taken and/or will take
all necessary corporate action on its part required to authorize the execution
and delivery of this Agreement and the performance of its obligations
hereunder; (3) has not taken and will not take any action that is
inconsistent with the terms of this Agreement; (4) this Agreement has been
duly executed and delivered on behalf of such Party, and constitutes a legal,
valid and binding obligation of such Party and is enforceable against it in
accordance with its terms; and (5) all necessary consents, approvals and
authorizations of all governmental authorities and other persons or entities
required to be obtained by such Party in connection with entry into this
Agreement have been obtained.


 





















 


6.             Further Assurances.  Each Party agrees to execute, acknowledge and deliver such further
instruments, and to do all such other acts as may be necessary or appropriate
in order to carry out the purposes and intent of this Transfer &
Assumption Agreement.


 


7.             Successors. This Transfer &
Assumption Agreement shall be binding upon and inure to the benefit of the
Parties hereto and their respective successors and permitted assigns.


 


8.             Counterparts.  This Transfer & Assumption Agreement
may be signed in counterparts, each of which shall be deemed an original and
which shall together constitute one agreement.


 


IN
WITNESS WHEREOF, each of the Parties, intending to be legally bound, have
caused the execution of this Transfer & Assumption Agreement by their
respective duly-authorized officers who have signed below, to be effective as
of the date noted above.


 


 


	
  NEW YORK UNIVERSITY

  	
   

  	
  COLLATERAL THERAPEUTICS, INC.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  / S / Abram M. Goldfinger

  	
   

  	
   

  	
  By:

  	
   

  	
  / S / John Nicholson

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
  Abram M. Goldfinger

  	
   

  	
  Name:

  	
  John Nicholson

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
  Executive Director,

  	
   

  	
  Title:

  	
  Treasurer

  
	
   

  	
  Industrial Liaison/Technology Transfer

  	
   

  	
   

  	
   

  
	
  Date:

  	
  August 2, 2005

  	
   

  	
  Date:

  	
  October 13, 2005

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CARDIUM THERAPEUTICS, INC.

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  / S / Christopher J. Reinhard

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
  Christopher J. Reinhard

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
  CEO

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
  September 16, 2005

  	
   

  	
   

  	
   

  
									



 





















 


Appendix A


Form of Confirmation of Transfer and Assumption


 


By
Fax: (212) 263-8189


 


New
York University Medical Center


650
First Avenue


New
York, NY  10016


 


Attn:
Abram M. Goldfinger


 


Re:
Transfer and Assumption of License Agreement Related to FGF-4

from Collateral Therapeutics, Inc. to Cardium Therapeutics, Inc.


 


Dear
Sirs:


 


This
is to confirm, pursuant to Section 1 of the Transfer, Consent to Transfer,
Amendment and Assumption of License Agreement (the Transfer and Assumption
Agreement) effective as of July 24, 2005 by and among New York University
(as Licensor), Collateral Therapeutics, Inc. (as Transferor) and Cardium
Therapeutics, Inc. (as Transferee), that the transfer of rights and
obligations coincident with the closing of the Qualified Financing occurred on       
(the Transfer Date).


 


Sincerely,


 


	
  COLLATERAL THERAPEUTICS, INC.

  	
   

  	
  CARDIUM THERAPEUTICS, INC.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
   

  	
  Date:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Acknowledged
  by:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  NEW YORK UNIVERSITY

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Date: