Exhibit 10.37


 


Confidential treatment has been requested for portions of this
exhibit.  The copy filed herewith omits
the information subject to the confidentiality request.  Omissions are designated as [*].  A complete version of this exhibit has been
filed separately with the Securities and Exchange Commission.


 


 


RESEARCH FUNDING AND OPTION AGREEMENT


 


by and between


 


THE SCRIPPS RESEARCH INSTITUTE,


a California nonprofit


public benefit corporation


 


and


 


NEORX CORPORATION,


a Washington corporation


 










[*]         designates portions of this document that have been omitted pursuant to
a request for confidential treatment filed separately with the Securities and
Exchange Commission.


 





















 


TABLE OF
CONTENTS


 


	
  1.   DEFINITIONS

  	
   

  
	
  1.1

  	
  Affiliate

  	
   

  
	
  1.2

  	
  Agreement Number

  	
   

  
	
  1.3

  	
  [Left intentionally blank]

  	
   

  
	
  1.4

  	
  Confidential Information

  	
   

  
	
  1.5

  	
  Field

  	
   

  
	
  1.6

  	
  Joint Technology

  	
   

  
	
  1.7

  	
  Patent Rights

  	
   

  
	
  1.8

  	
  Principal Investigator.

  	
   

  
	
  1.9

  	
  Process

  	
   

  
	
  1.10

  	
  Product

  	
   

  
	
  1.11

  	
  Research Program

  	
   

  
	
  1.12

  	
  Research Tool

  	
   

  
	
  1.13

  	
  Service

  	
   

  
	
  1.14

  	
  Technology

  	
   

  
	
  1.15

  	
  TSRI Technology

  	
   

  
	
  1.16

  	
  Valid Claim

  	
   

  
	
  1.17

  	
  Option Exercise Period

  	
   

  
	
  1.18

  	
  Reservation

  	
   

  
	
  1.19

  	
  Reservation Period

  	
   

  
	
  1.20

  	
  Negotiation Period

  	
   

  
	
   

  	
   

  	
   

  
	
  2.   CONDUCT
  OF RESEARCH PROGRAM

  	
   

  
	
  2.1

  	
  Conduct of Research Program

  	
   

  
	
  2.2

  	
  Supervision of Research
  Program

  	
   

  
	
  2.3

  	
  Reports

  	
   

  
	
  2.4

  	
  Financial and Staffing
  Obligations

  	
   

  
	
   

  	
   

  	
   

  
	
  3.   GRANT OF
  RIGHTS

  	
   

  
	
  3.1

  	
  Grant

  	
   

  
	
  3.2

  	
  Disclosure of Technology

  	
   

  
	
  3.3

  	
  Option Exercise / Reservation Period

  	
   

  
	
  3.4

  	
  Exercise of Option

  	
   

  
	
  3.5

  	
  Patent Application Filings
  and Prosecution

  	
   

  
	
  3.6

  	
  Joint Technology

  	
   

  
	
  3.7

  	
  Research Tools

  	
   

  
	
   

  	
   

  	
   

  
	
  4.   INTERESTS
  AND RIGHTS IN INTELLECTUAL PROPERTY

  	
   

  
	
  4.1

  	
  Title.

  	
   

  
	
  4.2

  	
  Governmental Interest

  	
   

  
	
  4.3

  	
  Reservation of Rights

  	
   

  
	
   

  	
   

  	
   

  
	
  5.   CONFIDENTIALITY
  AND PUBLICATION

  	
   

  



 


i





















 


	
  5.1

  	
  Treatment of Confidential
  Information

  	
   

  
	
  5.2

  	
  Publications

  	
   

  
	
  5.3

  	
  Publicity

  	
   

  
	
   

  	
   

  	
   

  
	
  6.   WARRANTIES

  	
   

  
	
   

  	
   

  	
   

  
	
  7.   TERM AND
  TERMINATION

  	
   

  
	
  7.1

  	
  Term

  	
   

  
	
  7.2

  	
  Termination by Mutual
  Agreement

  	
   

  
	
  7.3

  	
  Termination Upon Non-Payment

  	
   

  
	
  7.4

  	
  Termination Upon Default

  	
   

  
	
  7.5

  	
  Termination Upon Insolvency

  	
   

  
	
  7.6

  	
  Effect of Expiration or
  Termination

  	
   

  
	
   

  	
   

  	
   

  
	
  8.   ASSIGNMENT;
  SUCCESSORS

  	
   

  
	
  8.1

  	
  Assignment

  	
   

  
	
  8.2

  	
  Binding Upon Successors and
  Assigns

  	
   

  
	
   

  	
   

  	
   

  
	
  9.   GENERAL
  PROVISIONS

  	
   

  
	
  9.1

  	
  Independent Contractors

  	
   

  
	
  9.2

  	
  Arbitration

  	
   

  
	
  9.3

  	
  Entire Agreement;
  Modification

  	
   

  
	
  9.4

  	
  California Law

  	
   

  
	
  9.5

  	
  No Use of Name

  	
   

  
	
  9.6

  	
  Headings

  	
   

  
	
  9.7

  	
  Severability

  	
   

  
	
  9.8

  	
  No Waiver

  	
   

  
	
  9.9

  	
  Attorneys’ Fees

  	
   

  
	
  9.10

  	
  Notices.

  	
   

  
	
  9.11

  	
  Compliance with U.S. Laws

  	
   

  
	
  9.12

  	
  Counterparts

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBIT A:

  	
  RESEARCH PROGRAM

  	
   

  
	
  EXHIBIT B:

  	
  BUDGET

  	
   

  
	
  EXHIBIT C:

  	
  FORM MATERIAL
  TRANSFER AGREEMENT

  	
   

  



 


ii





















 


RESEARCH FUNDING AND OPTION AGREEMENT


 


This Agreement is entered into this 4th day of
August, 2005 (the “Effective Date”, by and between THE SCRIPPS RESEARCH
INSTITUTE, 10550 North Torrey Pines Road, La Jolla, California 92037 (“TSRI”),
a California nonprofit public benefit corporation, and NEORX CORPORATION (“Sponsor”),
a Washington corporation located at 300 Elliott Avenue West, Suite 500,
Seattle, WA 98119, with respect to the facts set forth below.


 


RECITALS


 


A.                                   TSRI is engaged in fundamental scientific
biomedical and biochemical research including research relating to the
synthesis and evaluation of novel kinase inhibitors, as more particularly
described herein.


 


B.                                     Sponsor is engaged in research and
development of therapeutics for the treatment of diseases.


 


C.                                     Sponsor desires to provide certain funding as
part of TSRI’s research activities described above.


 


D.                                    TSRI has the exclusive right to grant a
license in and to any technology developed pursuant to the research program
described herein, subject to any non-exclusive rights of the U.S. Government,
resulting from the receipt by TSRI of U.S. Government funding, to use such
technology for its own purposes.


 


E.                                      TSRI is willing to grant to Sponsor an option
to acquire rights and licenses to use, enhance and develop technology arising
from the Research Program and develop, market and sell products in the field
described below, all as is more particularly described herein.


 


AGREEMENT


 


NOW, THEREFORE, in consideration of the mutual
covenants and conditions outlined herein, TSRI and Sponsor hereby agree as
follows:


 


1.                                       DEFINITIONS.


 


1.1                                 Affiliate.  The
term “Affiliate” shall mean any entity which directly or indirectly controls,
or is controlled by Sponsor.  The term “control”
as used herein means (a) in the case of corporate entities, direct or
indirect ownership of at least fifty percent (50%) of the stock or shares
entitled to vote for the election of directors; or (b) in the case of
non-corporate entities, direct or indirect ownership of at least fifty percent
(50%) of the equity interest with the power to direct the management and
policies of such non-corporate entities. 
Unless otherwise specified, the term Sponsor includes Affiliates.


 


1





















 


1.2                                 Agreement
Number.  This
Agreement is TSRI number SFP-1604.


 


1.3                                 [Left intentionally blank]


 


1.4                                 Confidential
Information.  The term “Confidential Information” shall
mean any and all proprietary information of TSRI or Sponsor which may be
exchanged between the parties at any time and from time to time during the term
hereof.  The fact that a party may have
marked or identified as confidential or proprietary any specific information
shall be indicative that such party believes such information to be
confidential or proprietary, but the failure to so mark information shall not
conclusively determine that such information was or was not considered
confidential information by such party. 
Information shall not be considered confidential to the extent that it:


 


a.                                       Is publicly disclosed through no fault of any
party hereto, either before or after it becomes known to the receiving party;
or


 


b.                                      Was known to the receiving party prior to the
date of this Agreement, which knowledge was acquired independently and not from
the other party hereto (including such party’s employees); or


 


c.                                       Is subsequently disclosed to the receiving
party in good faith by a third party who has a right to make such disclosure;
or


 


d.                                      Has been published by a third party as a
matter of right; or


 


e.                                       Is required to be disclosed by law or court
order, in which event the party required to make such disclosure shall limit
the same to the minimum required to comply with the law or court order, and
prior to making such disclosure that party shall notify the other party, not
later than ten (10) days before the disclosure in order to allow that
other party to comment and/or to obtain a protective or other order, including
extensions of time and the like, with respect to such disclosure.


 


1.5                                 Field.  The
term “Field” [*].


 


1.6                                 Joint
Technology. The term “Joint Technology” shall mean any
Technology developed jointly under principles arising under the patent laws of
the United States of America by at least one employee of or other person who
assigns or is under duty to assign such Technology to Sponsor and at least one
employee of or other person who assigns or is under duty to assign such
Technology to TSRI.


 


1.7                                 Patent Rights.  The
term “Patent Rights” shall mean rights under (a)  the U.S./PCT Patent
Application(s) covering Technology; (b) the foreign patent applications of
(a); (c)  the patents proceeding from (a) and (b);  (d) divisionals, continuations,
reissues, reexaminations, and extensions of any patent or application set forth
in (a)- (c) above; and (e)  all claims of 


 










[*]         designates portions of this document that have been omitted pursuant to
a request for confidential treatment filed separately with the Securities and
Exchange Commission.


 


2





















 


continuations-in-part
of (a) so long as any additional claims arise out of the Research Program,
and so long as said patents in (a) - (e) above have not been held
invalid and/or unenforceable by a court of competent jurisdiction from which
there is no appeal or, if appealable, from which no appeal has been taken.


 


1.8                                 Principal
Investigator.  The term “Principal Investigator” shall mean
Chris Liang, Ph.D. together with such replacement persons selected in
accordance with the provisions of Section 2.2 hereof.


 


1.9                                 Process.  The
term “Process” shall mean any process which is covered by a Valid Claim of
Patent Rights or the performance of which utilizes Technology.


 


1.10                           Product.  The
term “Product” shall mean any product the manufacture, use, importation, sale
or offer for sale of which is covered by a Valid Claim of Patent Rights or
which incorporates or the production of which utilizes Technology.


 


1.11                           Research
Program.  The
term “Research Program” shall mean the research program to be undertaken by
TSRI under the direction and control of the Principal Investigator as expressly
set forth on Exhibit A hereto.


 


1.12                           Research Tool.  The
Term “Research Tool” shall mean any Technology which is designed or utilized
for basic research purposes or internal drug discovery purposes and which is
not utilized to produce a Product or incorporated into a Product, or utilized
in the performance of a Process or Service.


 


1.13                           Service.  The
term “Service” shall mean the performance of a service for a third party, which
performance uses or incorporates a Product or Process or the performance of
which utilizes Technology.


 


1.14                           Technology.  The
term “Technology” shall mean any invention, discovery, know-how, trade secret,
software, information and data, whether patentable or not, conceived or
developed in performance of the Research Program.


 


1.15                           TSRI Technology.  The
term “TSRI Technology” shall mean any Technology developed solely by TSRI under
principles arising under the patent laws of the United States of America.


 


1.16                           Valid Claim.  The
term “Valid Claim” shall mean a claim of an issued patent within the Patent
Rights that has not lapsed, expired, been canceled, or become abandoned, and
has not been held invalid by a court or other appropriate body of competent
jurisdiction, unappealable or unappealed within the time allowed for appeal and
which has not been admitted to be invalid or unenforceable through reissue or
disclaimer or otherwise.  The term Valid
Claim shall also include the claims of a pending patent application within the
Patent Rights for a period of seven (7) years of filing that patent
application, per country.


 


3





















 


1.17                           Option Exercise
Period.  The term “Option Exercise Period” shall have
the meaning defined in section 3.3 herein.


 


1.18                           Reservation.  The
term Reservation shall have the meaning defined in section 3.3 herein.


 


1.19                           Reservation
Period.  The
term Reservation Period shall have the meaning defined in section 3.3
herein.


 


1.20                           Negotiation
Period.  The term Negotiation Period shall have the
meaning defined in section 3.4 herein.


 


2.                                       CONDUCT OF RESEARCH PROGRAM.


 


2.1                                 Conduct of
Research Program. TSRI hereby agrees to use reasonable efforts
to perform the Research Program subject to the provisions of this Agreement,
including the attached Research Program. Notwithstanding the foregoing, TSRI
makes no warranties or representations regarding its ability to achieve, nor
shall it be bound to accomplish, any particular research objective or results.


 


2.2                                 Supervision of
Research Program.  TSRI
agrees that the Research Program at TSRI shall be conducted by or under the
direct supervision of the Principal Investigator and in conjunction with the
joint steering committee (JSC), as set forth in the Research Program.  In the event that the Principal Investigator
leaves TSRI, or terminates his/her involvement in the Research Program, TSRI
shall use its best efforts to find a replacement Principal Investigator
acceptable to Sponsor within 60 days, which acceptance shall not be
unreasonably withheld.  In the event that
TSRI shall fail to appoint a replacement Principal Investigator reasonably
acceptable to Sponsor, Sponsor shall have a right to terminate this Agreement
upon delivery to TSRI of written notice of intent to terminate pursuant to this
Section 2.2, which notice must be delivered to TSRI no more than 90 days
after delivery by TSRI to Sponsor of the name of the replacement Principal
Investigator.


 


2.3                                 Reports.  TSRI
agrees that within sixty (60) days following the last day of each three (3) month
period during the term of this Agreement, TSRI shall furnish Sponsor with a
written report summarizing the results of the research included within the
scope of the Research Program conducted by TSRI, during the immediately
preceding three (3) month period, including but not limited to all data,
conclusions, results, observations and a detailed description of all
procedures. All such reports shall be maintained in confidence by Sponsor. In
the event that, resulting from its review of such report, Sponsor identifies
any Technology to which it would like to exercise its option and which has not
been previously disclosed to Sponsor by TSRI in accordance with Section 3.2,
Sponsor shall notify TSRI of such in writing. Upon such notification, TSRI
shall provide Sponsor with a Technology Disclosure in accordance with Section 3.2.
Sponsor may exercise its option to the Technology covered by the Technology
Disclosure as specifically set forth in Sections 3.3 and 3.4.


 


4





















 


2.4                                 Financial
and Staffing Obligations


 


a.                                       Contributions of Parties to Research Program. 
Contributions in the form of financial support, equipment, personnel,
technology and other necessary components for the conduct of the Research
Program shall be made by the parties in accordance with the terms set forth in
Exhibits A and B attached to this Agreement. All payments due to TSRI by
Sponsor shall be payable in U.S. Dollars by Sponsor in quarterly installments
in advance, within ten (10) days of the dates set forth in the budget
attached hereto as Exhibit B.  Each
payment must reference the Research Project title, Agreement Number and
Principal Investigator for purposes of identification. Payments under this Section shall
be sent to:


 


	
   

  	
   

  	
  The Scripps Research Institute

  
	
   

  	
   

  	
  10550 North Torrey Pines Road, TPC-7

  
	
   

  	
   

  	
  La Jolla, California 92037

  
	
   

  	
   

  	
  Attn: Vice President, Sponsored Programs

  
	
   

  	
   

  	
  Fax No.: (858) 784-8037

  
	
   

  	
   

  	
   

  
	
  With a copy to:

  	
   

  	
  The Scripps Research Institute

  
	
   

  	
   

  	
  10550 North Torrey Pines Road, TPC-9

  
	
   

  	
   

  	
  La Jolla, California 92037

  
	
   

  	
   

  	
  Attn: Director, Technology Development

  
	
   

  	
   

  	
  Fax No.: (858) 784-9910

  



 


Subject
to a thirty (30) day written notice to Sponsor to cure, TSRI shall not be
obligated to perform any of the research specified herein or to take any other
action required under this Agreement if the funding is not provided as set
forth in Exhibit B and in accordance with the payment schedule as set
forth in this Section 2.4.a. 
Furthermore, should Sponsor fail to make the first payment to TSRI in
accordance with this Section 2.4.a., TSRI shall have the right to
terminate this Agreement ab initio.


 


b.                                      Capital Equipment. 
Equipment purchased by TSRI with funds provided by Sponsor shall be the
property of TSRI.  All capital equipment
provided under this Agreement by Sponsor for the use of TSRI remains the
property of the Sponsor unless other disposition is mutually agreed upon in
writing by the Parties. If title to this equipment remains with the Sponsor,
Sponsor is responsible for maintenance of the equipment and the costs of its
transportation to and from the site where it will be used.


 


3.                                       GRANT OF RIGHTS.


 


3.1                                 Grant. 
Subject to the terms of this Agreement and the reservation of rights
specified in Sections 4.2 and 4.3, TSRI hereby grants to Sponsor:


 


a.                                       an
exclusive option to acquire an exclusive or non-exclusive (at Sponsor’s
election) worldwide license, subject to Sections 4.2 and 4.3, including the
right to sublicense, under TSRI’s rights in the Patent Rights and in the
Technology to make and have made, to use 


 


5





















 


and have used, to sell and have sold, to offer to sell and to import
Products, Services and Processes in the Field;


 


b.                                      an exclusive option to acquire a
non-exclusive, worldwide license, without the right to sublicense, to make and
have made, to use and have used, to sell and have sold, to offer to sell and to
import any Research Tools in the Field; and


 


c.                                       a
non-exclusive, royalty-free, non-transferable license to make and use Patent
Rights and Technology solely for internal research purposes. Any transfer of
materials to Sponsor under this Section 3.1. c shall require the execution
of a Material Transfer Agreement. The terms of such Material Transfer Agreement
shall be materially consistent with the form Material Transfer Agreement attached
hereto as Exhibit C. This grant and attendant Material Transfer Agreement
in no way limits the option or licenses granted pursuant thereto under this Section 3.1.a
or b, but are in addition to such grant.


 


3.2                                 Disclosure of
Technology.  As
soon as reasonably possible, either upon conception or reduction to practice,
as the case may be, TSRI shall disclose Technology in writing to Sponsor (the “Technology
Disclosure”).  Scripps shall make its
best efforts to provide a Technology Disclosure that contains sufficient detail
to (i) enable both parties to determine whether or not the particular
Technology is TSRI Technology or Joint Technology; and (ii) enable Sponsor
to evaluate the advisability of exercising the option granted hereunder with
respect to such Technology or reserving its right to exercise the option at a
later date as set forth in Section 3.3. 
All such Technology Disclosures shall be maintained in confidence by
Sponsor.


 


3.3                                 Option Exercise
/ Reservation Period. 
Sponsor shall have a period of ninety (90) days from receipt of the
Technology Disclosure from TSRI, within which to (a) exercise its option
as set forth in Section 3.4 to obtain a license in the Field to the
particular Technology disclosed therein (“Option Exercise Period”) or, in the alternative,
(b) to reserve its right to exercise the option after such Technology
Disclosure (“Reservation”) by notifying TSRI in writing that it is electing to
pay out-of-pocket patent-related costs as set forth in Section 3.5 during
the period of time the option is reserved (“Reservation Period”). In the event
Sponsor elects to reserve its right to exercise the option, upon written notice
by TSRI of completion of the Research Program, Sponsor shall have ninety (90)
days after receipt of such notice within which to exercise its option as set
forth in Section 3.4.  In the event
Sponsor fails to pay the out-of-pocket patent-related costs during the
Reservation Period, subject to thirty (30) days’ written notice to cure such
failure, the option shall expire.


 


3.4                                 Exercise of
Option. 
Sponsor shall exercise its option to obtain a license hereunder by
delivering to TSRI a written notice within the Option Exercise/ Reservation
Period which specifies (i) the particular Technology for which the option
is being exercised; and (ii) the type of license that Sponsor wishes to
obtain. Upon such notification, Sponsor and TSRI shall have a period of sixty
(60) days from the date of exercise of option by Sponsor (“Negotiation Period”),
within which to enter into a License Agreement upon commercially reasonable
terms including reasonable license fees, royalty rates and commercial
development obligations. The Negotiation Period can be extended at any time by
mutual agreement of the Parties. 


 


6





















 


3.5                                 Patent
Application Filings and Prosecution.  Upon
exercise of its option or reservation, except as provided in Section 3.7,
Sponsor shall be required to pay for all costs associated with the preparation,
filing and prosecution of any patent applications necessary to protect the
proprietary positions of both parties in the Technology, as discussed more
fully herein. The parties agree that until such time as Sponsor notifies TSRI
that it shall discontinue paying for the out-of-pocket patent-related costs,
subject to six (6) months’ written notice, or upon completion of the
Research Program, whichever is first, the patent applications shall be
prepared, filed and prosecuted by outside counsel approved by both parties, and
while the outside counsel shall be supervised by and be under the direction of
TSRI, TSRI shall notify Sponsor of the prosecution strategies and shall
consider Sponsor’s comments regarding same. 
TSRI shall invoice Sponsor for all out-of-pocket patent-related related
costs, which invoice Sponsor shall pay within thirty (30) days.  If Sponsor notifies TSRI at any time that it
will discontinue paying for the patent-related costs, Sponsor’s option rights
herein to the particular Technology shall expire.


 


The parties agree that TSRI shall pursue patent
protection in [*], and Sponsor, to maintain its rights to a worldwide license,
shall pay for such patent-related costs. Should Sponsor wish to pursue patent
protection in additional countries or regions, Sponsor shall make such request
of TSRI, which request shall not be unreasonably denied, and Sponsor shall pay
for patent-related costs in such additional countries or regions. Sponsor is
not, however, required to pay for patent-related costs in such additional
countries or regions to maintain its worldwide rights unless it makes such
request of TSRI. In the event TSRI wishes to seek patent protection in
countries or regions where Sponsor has not elected to do so, TSRI will promptly
notify Sponsor and discuss the reasons for seeking such protection with
Sponsor.  If Sponsor declines to seek the
protection desired by TSRI, TSRI can pursue patent protection in those
countries or regions at its own expense without affecting the worldwide rights
of Sponsor. However, should those patent-related rights then be shown to
provide significant economic value to Sponsor in that country or region, ,
Sponsor shall repay TSRI for all reasonable patent-related costs, as well as
any ongoing costs, the foregoing notwithstanding. The parties further agree,
that should any patent filings or prosecution in any country or region be or
become legally not feasible or commercially unreasonable, such filings or
prosecution shall not be pursued and/or be discontinued without affecting
Sponsor’s rights under this agreement.


 


Except in the case of Research Tools and subject to Section 3.7,
should TSRI reasonably determine at any time that it is necessary to
expeditiously file a patent application covering the Technology to avoid a
statutory bar [*], upon reasonable notice to Sponsor and Sponsor input which
shall be reasonably considered, TSRI shall do so, the costs of which shall be
reimbursed by Sponsor, if Sponsor wishes to preserve its rights pursuant to Section 3.3
to exercise or reserve its option.


 










[*]         designates portions of this document that have been omitted pursuant to
a request for confidential treatment filed separately with the Securities and
Exchange Commission.


 


7





















 


3.6                                 Joint
Technology.  The
parties hereby agree that in the event that the disclosed Technology is Joint
Technology and that Sponsor does not exercise or reserve its option, both
Parties shall (i) have no further obligations to each other with respect
to such Joint Technology and any resulting patent rights; and (ii) be free
to independently use and license their rights to such Joint Technology,
including any resulting patents on a worldwide basis, and shall be free to
retain all income and proceeds therefrom without accounting to the other party.


 


3.7                                 Research Tools.  In
the event that Sponsor exercises its option to obtain a non-exclusive license
to Research Tools under Section 3.1b herein above and elects not to pursue
patent protection on such Research Tools, TSRI and Sponsor shall have sixty (60)
days from the date of exercise of option by Sponsor in which to execute a
license agreement to such Research Tools. 
This shall in no way restrict TSRI’s right to obtain patent protection
on such Research Tools.


 


4.                                       INTERESTS AND RIGHTS IN INTELLECTUAL PROPERTY.


 


4.1                                 Title.  TSRI
shall retain sole ownership and title to TSRI Technology. TSRI shall, in the
good faith exercise of its discretion, undertake reasonable efforts to preserve
and maintain its ownership and title as TSRI deems appropriate.  Ownership of and title to Joint Technology
shall be vested jointly in TSRI and Sponsor, with each owning an undivided
interest therein. Ownership of Patent Rights shall follow inventorship under
principles arising under the patent laws of the United States of America.


 


4.2                                 Governmental
Interest. 
Sponsor and TSRI acknowledge that TSRI has received, and expects to
continue to receive, funding from the United States Government in support of
TSRI’s research activities.  Sponsor and
TSRI acknowledge and agree that their respective rights and obligations
pursuant to this Agreement shall be subject to TSRI’s obligations to the United
States Government, including but not limited to 37CFR401, the NIH Grants Policy
Statement and NIH Guidelines for Obtaining and Disseminating Biomedical
Research Resources.


 


4.3                                 Reservation of
Rights.  In
keeping with the license option granted herein, TSRI reserves the right to use
for any internal research purposes any Patent Rights licensed hereunder (but
not to generate materials or data for any commercial entity), without TSRI
being obligated to pay Sponsor any royalties or other compensation.  In addition, TSRI reserves the right to grant
non-exclusive research use licenses to other non-profit or academic
institutions to Patent Rights licensed hereunder, without the other non-profit
or academic entities being obligated to pay Licensee any royalties or other
compensation.  Such non-profit or
academic institutions shall be prohibited from using the research license to
generate materials or data for any commercial entity. TSRI shall make all
reasonable efforts to notify Sponsor of such use.


 


5.                                       CONFIDENTIALITY AND PUBLICATION.


 


5.1                                 Treatment of
Confidential Information.  The
parties agree that during the term of this Agreement, and for a period of three
(3) years after this Agreement terminates, a party receiving Confidential
Information of the other party will (a) maintain in confidence such
Confidential Information to the same extent such party maintains its own
proprietary information; (b) not 


 


8





















 


disclose
such Confidential Information to any third party without the prior written
consent of the other party;  and (c) not
use such Confidential Information for any purpose except those permitted by
this Agreement.


 


5.2                                 Publications. 
Sponsor acknowledges that it is the general policy of TSRI to encourage
publication of research results in technical or scientific journals; and
Sponsor agrees that TSRI shall have a right to publish in accordance with its
general policy.  If a patent application
covering Technology disclosed by a proposed publication has not been filed,
then prior to such publication, TSRI shall submit to Sponsor copies of proposed
publications which describe Technology and afford Sponsor a period of forty
five (45) days to review the publication to (i) ascertain whether Sponsor’s
Confidential Information would be disclosed by the publication; (ii) ascertain
whether or not the publication discloses any Technology to which Sponsor wishes
to exercise its option; and (iii) to ascertain the necessity or
desirability of the filing of a patent application covering Technology prior to
such publication. If such publication discloses either Sponsor’s Confidential
Information or Technology on which Sponsor wishes to file a patent application,
upon Sponsor’s written request, TSRI shall remove such Confidential Information
and/or delay publication for up to an additional forty-five (45) days to allow
Sponsor to protect its Confidential Information or the Technology by filing a
patent application(s).


 


5.3                                 Publicity. 
Except as otherwise provided herein or required by law, no party shall
originate any publication, news release or other public announcement, written
or oral, whether in the public press, stockholders’ reports, or otherwise,
relating to this Agreement or to any sublicense hereunder, or to the
performance hereunder or any such agreements, without the prior written
approval of the other party, which approval shall not be unreasonably withheld.
Nothing in this section shall, however, preclude Sponsor from describing
the existence and general scope of the research collaboration in general
business communications, subject to fifteen (15) days prior written notice to
TSRI describing the content of the communications, to the extent the content
has not been previously provided to TSRI in some form. Scientific publications
published in accordance with Section 5.2 of this Agreement shall not be
construed as publicity governed by this Section 5.3.


 


6.                                       WARRANTIES.


 


Limited Warranty.  TSRI
hereby represents and warrants that it has full right and power to enter into
this Agreement.  TSRI MAKES NO OTHER
WARRANTIES CONCERNING PATENT RIGHTS, TECHNOLOGY, RESEARCH TOOLS OR BIOLOGICAL MATERIALS COVERED BY
THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTY
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AS TO PATENT RIGHTS,
TECHNOLOGY, BIOLOGICAL MATERIALS, RESEARCH TOOLS OR ANY PRODUCT, PROCESS OR
SERVICE.  TSRI MAKES NO WARRANTY OR
REPRESENTATION AS TO THE VALIDITY OR SCOPE OF PATENT RIGHTS, OR THAT ANY
PRODUCT WILL BE FREE FROM AN INFRINGEMENT ON PATENTS OR OTHER INTELLECTUAL
PROPERTY RIGHTS OF THIRD PARTIES, OR THAT NO THIRD PARTIES ARE IN ANY WAY
INFRINGING PATENT RIGHTS, TECHNOLOGY, RESEARCH
TOOLS OR BIOLOGICAL MATERIALS 


 


9





















 


COVERED
BY THIS AGREEMENT.  FURTHER, TSRI HAS
MADE NO INVESTIGATION AND MAKES NO REPRESENTATION THAT THE RESEARCH TOOLS OR
BIOLOGICAL MATERIALS SUPPLIED BY IT OR THE METHODS USED IN MAKING OR USING SUCH
MATERIALS ARE FREE FROM LIABILITY FOR PATENT INFRINGEMENT.


TSRI
MAKES NO WARRANTIES OR REPRESENTATIONS REGARDING ITS ABILITY TO ACHIEVE, NOR
SHALL IT BE BOUND TO ACCOMPLISH, ANY PARTICULAR RESEARCH OBJECTIVE OR RESULTS.


 


IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY
INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION,
DAMAGES FOR LOSS OF PROFITS OR EXPECTED SAVINGS OR OTHER ECONOMIC LOSSES, OR
FOR INJURY TO PERSONS OR PROPERTY) ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT OR ITS SUBJECT MATTER, REGARDLESS OF WHETHER IT KNOWS OR SHOULD KNOW
OF THE POSSIBILITY OF SUCH DAMAGES.  TSRI’S
AGGREGATE LIABILITY FOR ALL DAMAGES OF ANY KIND RELATING TO THIS AGREEMENT OR
ITS SUBJECT MATTER SHALL NOT EXCEED THE AMOUNT PAID BY SPONSOR TO TSRI UNDER
THIS AGREEMENT.  THE FOREGOING EXCLUSIONS
AND LIMITATIONS SHALL APPLY TO ALL CLAIMS AND ACTIONS OF ANY KIND, WHETHER
BASED ON CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO NEGLIGENCE), OR ANY
OTHER GROUNDS.


 


7.                                       TERM AND TERMINATION.


 


7.1                                 Term. 
Unless terminated sooner, the initial term of this Agreement shall
commence on the Effective Date and shall continue for two (2) years and
two months, as set forth in the Research Program and the Budget.  The Term can be extended by mutual agreement
of the parties. Upon mutual written consent, the parties may extend this
Agreement for up to an additional two (2) years, under the same terms and
conditions.


 


7.2                                 Termination by
Mutual Agreement.  This
Agreement may be terminated at any time upon the mutual written agreement of
the parties.  In the absence of an
agreement to the contrary, no such termination shall have the effect of
relieving Sponsor of its monetary obligations to fund the Research Program.


 


7.3                                 Termination
Upon Non-Payment.  In
the event that Sponsor fails to pay to TSRI any payment within the time frame
set forth in Sections 2.4.a, or 3.5, and subject to thirty (30) days written
notice to cure the non-payment, TSRI shall not be obligated to perform any of
the research specified herein or to take any other action required under this
Agreement and may terminate this Agreement immediately upon such non-payment,
in which case Sponsor shall forfeit any rights grated to Sponsor herein.  Termination pursuant to this Section 7.3
shall not relieve Sponsor of any liability.


 


7.4                                 Termination
Upon Default. 
Except as otherwise specified herein, the failure of a party to perform
any obligation required of it to be performed hereunder and the failure to cure
within sixty (60) days after receipt of notice from the other party
specifying in reasonable detail the 


 


10





















 


nature
of such default, shall constitute an event of default hereunder.  Upon the occurrence of an event of default,
the non-defaulting party may deliver to the defaulting party written notice of
intent to terminate, such termination to be effective upon the date set forth
in such notice.  Such termination rights
shall be in addition to and not in substitution for any other remedies that may
be available to the non-defaulting party serving such notice against the
defaulting party.  Termination pursuant
to this Section 7.4 shall not relieve the defaulting party of liability
and damages to non-defaulting party for breach of this Agreement.  Waiver by any party of a single default or a
succession of defaults shall not deprive such party of any right to terminate
this Agreement arising by reason of any subsequent default.


 


7.5                                 Termination
Upon Insolvency.  This Agreement may be terminated as to any
party (“Insolvent Party”) by another party giving written notice of termination
to the Insolvent Party upon the filing of bankruptcy or bankruptcy of the
Insolvent Party or the appointment of a receiver of any of the Insolvent Party’s
assets, or the making by the Insolvent Party of any assignment for the benefit
of creditors, or the institution of any proceedings against the Insolvent Party
under any bankruptcy law.  Termination
under this section shall be effective upon the date specified in this
notice.


 


7.6                                 Effect of Expiration or Termination.


 


a.                                       Termination Upon Default of Sponsor.  Upon
the termination of this Agreement by reason of a default by Sponsor, neither
party shall have any further rights or obligations with respect to this
Agreement, other than the obligation of Sponsor to make any and all final
payments accrued prior to the date of termination and the obligation of the
parties to make all reports required hereunder. 
Upon such termination of this Agreement, the parties shall continue to
abide by their non-disclosure obligations as described in Section 5.1 and
each party hereto shall fulfill any other obligations incurred prior to such
termination.  Any such termination of
this Agreement shall not constitute the termination of any license or any other
agreements between the parties which are then in effect, except as expressly
provided therein and any non-exclusive licenses that have been granted under Section 3.1.c
shall survive.


 


b.                                      Expiration or Termination upon Default of
TSRI.  Upon the expiration of this Agreement at its
regularly scheduled expiration date, or upon a termination of this Agreement on
account of a default by TSRI, then TSRI shall make the disclosures required by Section 3.2
for TSRI Technology conceived or reduced to practice up to the date of said
expiration or termination; and Sponsor shall have the right to exercise its
option with respect to said TSRI Technology in accordance with the schedule and
procedures specified in Sections 3.3 and 3.4 above; and any non-exclusive
licenses that have been granted under Section 3.1.c shall survive.  Additionally, each party shall perform all
other obligations up to the date of said expiration or termination; and the
parties shall continue to abide by their non-disclosure obligations described
in Section 5.1; and any previously existing license agreements or other
agreements between the parties shall continue in effect.


 


11





















 


8.                                       ASSIGNMENT; SUCCESSORS.


 


8.1                                 Assignment.  Any
and all assignments of this Agreement or any rights granted hereunder by
Sponsor are void except (i) to an Affiliate of Sponsor; (ii) in
conjunction with the sale of all or substantially all of the assets of Sponsor,
or the consolidation or merger of Sponsor with another entity; or (iii) as
expressly permitted hereunder, without the prior written consent of TSRI.  Any and all assignments of this Agreement or
any rights granted hereunder by TSRI are void without the prior written consent
of Sponsor.


 


8.2                                 Binding Upon
Successors and Assigns. 
Subject to the limitations on assignment set forth herein, this
Agreement shall be binding upon and inure to the benefit of any successors in
interest and assigns of TSRI and Sponsor. 
Any such successor to or assignee of a party’s interest shall expressly
assume in writing the performance of all the terms and conditions of this
Agreement to be performed by such party.


 


9.                                       GENERAL PROVISIONS.


 


9.1                                 Independent
Contractors.  The relationship between TSRI and Sponsor is
that of independent contractors.  TSRI
and Sponsor are not joint venturers, partners, principal and agent, master and
servant, employer or employee, and have no other relationship other than
independent contracting parties.  TSRI
and Sponsor shall have no power to bind or obligate each other in any manner,
other than as is expressly set forth in this Agreement.


 


9.2                                 Arbitration.  Any
controversy or claim arising out of or relating to this Agreement, or the
breach thereof, shall be settled by binding arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration Association (“AAA”),
and the procedures set forth below.  In
the event of any inconsistency between the Rules of AAA and the procedures
set forth below, the procedures set forth below shall control.  Judgment upon the award rendered by the
arbitrators may be enforced in any court having jurisdiction thereof.


 


a.                                       Location.  The location of the
arbitration shall be in the County of San Diego.


 


b.                                      Selection of Arbitrators.  The
arbitration shall be conducted by a panel of three neutral arbitrators who are
independent and disinterested with respect to the parties, this Agreement, and
the outcome of the arbitration.  Each
party shall appoint one neutral arbitrator, and these two arbitrators so
selected by the parties shall then select the third arbitrator.  If one party has given written notice to the
other party as to the identity of the arbitrator appointed by the party, and the
party thereafter makes a written demand on the other party to appoint its
designated arbitrator within the next ten days, and the other party fails to
appoint its designated arbitrator within ten days after receiving said written
demand, then the arbitrator who has already been designated shall appoint the
other two arbitrators.


 


c.                                       Discovery.  Unless the parties mutually
agree in writing to some additional and specific pre-hearing discovery, the
only pre-hearing discovery shall be (a) reasonably limited production of
relevant and non-privileged documents; and (b) the identification of
witnesses to 


 


12





















 


be
called at the hearing, which identification shall give the witness’s name,
general qualifications and position, and a brief statement as to the general
scope of the testimony to be given by the witness.  The arbitrators shall decide any disputes and
shall control the process concerning these pre-hearing discovery matters.  Pursuant to the Rules of AAA, the
parties may subpoena witnesses and documents for presentation at the hearing.


 


d.                                      Case Management. 
Prompt resolution of any dispute is important to both parties; and the
parties agree that the arbitration of any dispute shall be conducted
expeditiously.  The arbitrators are
instructed and directed to assume case management initiative and control over
the arbitration process (including scheduling of events, pre-hearing discovery
and activities, and the conduct of the hearing), in order to complete the
arbitration as expeditiously as is reasonably practical for obtaining a just
resolution of the dispute.


 


e.                                       Remedies.  The arbitrators may grant any
legal or equitable remedy or relief that the arbitrators deem just and
equitable, to the same extent that remedies or relief could be granted by a
state or federal court, provided however, that no punitive damages may be
awarded.  No court action may be
maintained seeking punitive damages.  The
decision of any two of the three arbitrators appointed shall be binding upon
the parties.


 


f.                                         Expenses.  The expenses of the
arbitration, including the arbitrators’ fees, expert witness fees, and attorney’s
fees, may be awarded to the prevailing party, in the discretion of the
arbitrators, or may be apportioned between the parties in any manner deemed
appropriate by the arbitrators.  Unless
and until the arbitrators decide that one party is to pay for all (or a share)
of such expenses, both parties shall share equally in the payment of the
arbitrators’ fees as and when billed by the arbitrators.


 


g.                                      Confidentiality. 
Except as set forth below, the parties shall keep confidential the fact
of the arbitration, the dispute being arbitrated, and the decision of the
arbitrators.  Notwithstanding the
foregoing, the parties may disclose information about the arbitration to persons
who have a need to know, such as directors, trustees, management employees,
witnesses, experts, investors, attorneys, lenders, insurers, and others who may
be directly affected.  Additionally,
Sponsor may make such disclosures as are required by applicable securities
laws.


 


9.3                                 Entire
Agreement; Modification.  This
Agreement sets forth the entire agreement and understanding between the parties
as to the subject matter hereof.  There
shall be no amendments or modifications to this Agreement, except by a written
document which is signed by both parties.


 


9.4                                 California Law.  This
Agreement shall be construed and enforced in accordance with the laws of the
State of California notwithstanding any conflict of laws provisions.


 


9.5                                 No Use of Name.  The
use of the name “The Scripps Research Institute”, “Scripps”, “TSRI” or any
variation thereof in connection with the advertising or sale of Products is
expressly prohibited.


 


13





















 


9.6                                 Headings.  The
headings for each article and section in this Agreement have been
inserted for the convenience of reference only and are not intended to limit or
expand on the meaning of the language contained in the particular article or
section.


 


9.7                                 Severability. 
Should any one or more of the provisions of this Agreement be held
invalid or unenforceable by a court of competent jurisdiction, it shall be
considered severed from this Agreement and shall not serve to invalidate the
remaining provisions thereof.  The
parties shall make a good faith effort to replace any invalid or unenforceable
provision with a valid and enforceable one such that the objectives
contemplated by them when entering this Agreement may be realized.


 


9.8                                 No Waiver.  Any
delay in enforcing a party’s rights under this Agreement or any waiver as to a
particular default or other matter shall not constitute a waiver of such party’s
rights to the future enforcement of its rights under this Agreement, excepting
only as to an express written and signed waiver as to a particular matter for a
particular period of time.


 


9.9                                 Attorneys’ Fees.  In
the event of a dispute among the parties hereto or in the event of any default
hereunder, the party prevailing in the resolution of any such dispute or
default shall be entitled to recover its reasonable attorneys’ fees and other
costs incurred in connection with resolving such dispute or default.


 


9.10                           Notices.  Any
notices required by this Agreement shall be in writing, shall specifically
refer to this Agreement and shall be sent by registered or certified airmail,
postage prepaid, or by telefax, telex or cable, charges prepaid, or by
overnight courier, postage prepaid, and shall be forwarded to the respective
addresses set forth below unless subsequently changed by written notice to the
other party:


 


	
  FOR TSRI:

  	
   

  	
  The Scripps Research Institute

  
	
   

  	
   

  	
  10550 North Torrey Pines
  Road, TPC-9

  
	
   

  	
   

  	
  La Jolla, California 92037

  
	
   

  	
   

  	
  Attn: Director, Technology Development

  
	
   

  	
   

  	
  Fax No.: (858) 784-9910

  
	
   

  	
   

  	
   

  
	
  With a copy to:

  	
   

  	
  The Scripps Research Institute

  
	
   

  	
   

  	
  10550 North Torrey Pines Road, TPC-8

  
	
   

  	
   

  	
  La Jolla, California 92037

  
	
   

  	
   

  	
  Attention: General Counsel

  
	
   

  	
   

  	
  Fax No.: (858) 784-9910

  



 


14





















 


	
  FOR SPONSOR:

  	
   

  	
  NeoRx Corporation

  
	
   

  	
   

  	
  300 Elliott Avenue West, Suite 500

  
	
   

  	
   

  	
  Seattle, Washington 98119

  
	
   

  	
   

  	
  Attn: Vice President, Legal

  
	
   

  	
   

  	
  Fax No.: (206) 286-2537

  



 


Notice
shall be deemed delivered upon the earlier of (i) when received; (ii) three
(3) days after deposit into the mail; (iii) the date notice is sent
via telefax, telex or cable; or (iv) the day immediately following
delivery to overnight courier (except Sunday and holidays).


 


9.11                           Compliance with
U.S. Laws. 
Nothing contained in this Agreement shall require or permit TSRI or
Sponsor to do any act inconsistent with the requirements of any United States
law, regulation or executive order as the same may be in effect from time to
time.


 


9.12                           Counterparts.  This
Agreement may be executed in counterparts, which together shall be construed as
fully executed.  Facsimile signatures shall
be considered original signatures.


 


 


IN WITNESS WHEREOF, the parties have executed this
Agreement by their duly authorized representatives as of the date set forth
above.


 


 


	
  TSRI:

  	
  SPONSOR:

  
	
   

  	
   

  
	
   

  	
   

  
	
  THE SCRIPPS RESEARCH INSTITUTE

  	
  NEORX CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   /s/ POLLY A. MURPHY

  	
   

  	
  By:

  	
   /s/ GERALD MCMAHON

  	
   

  
	
  Title:

  	
   Senior Vice President

  	
   

  	
  Title:

  	
  Chairman and CEO

  	
   

  
										



 


15





















 


EXHIBIT A


 


RESEARCH PROGRAM


[*]


 










[*]         designates portions of this document that have been omitted pursuant to
a request for confidential treatment filed separately with the Securities and
Exchange Commission.


 


16





















 


EXHIBIT B


 


BUDGET


[*]


 










[*]         designates portions of this document that have been omitted pursuant to a request for confidential
treatment filed separately with the Securities and Exchange Commission.


 


21





















 


EXHIBIT C


 


FORM OF
MATERIAL TRANSFER AGREEMENT


 


THE SCRIPPS
RESEARCH INSTITUTE


 


MATERIAL
TRANSFER AGREEMENT


 


[Date]


 


[Contact’s
Name]


[Sponsor’s
name]


[Sponsor’s
Address]


 


 


Dear
Dr. [Contact’s Name]:


 


This
is to acknowledge your request for the [Materials Requested] to be provided by
[Principal Investigator] at The Scripps Research Institute (TSRI) pursuant to Section 3.1.c
of the Research Funding and Option Agreement between TSRI and [Sponsor’s name]

dated                         .  This material and all modifications and
derivatives of this material are referred to herein as “Materials”.


 


TSRI
is pleased to cooperate with your use of these Materials at [Sponsor’s name]
for your scientific research.  However,
before forwarding them to you, TSRI needs [Sponsor’s name] to agree to the
following terms and conditions:


 


(1)                                  that TSRI hereby grants Sponsor a
non-exclusive, royalty-free, non-transferable license to make and use the
Materials solely for internal research purposes;


 


(2)                                  that the Materials shall be received by
[Sponsor’s name] only for use in scientific research in [Sponsor’s name]’s laboratories
and that all applicable guidelines set forth by the National Institutes of
Health (NIH), U.S. Department of Agriculture (USDA) or other government
agencies regarding the use of these Materials shall be followed;


 


(3)                                  these Materials are provided as a service to
the research community.  THE MATERIALS
ARE BEING SUPPLIED TO YOU WITH NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE;


 


(4)                                  that [Sponsor’s name] shall bear all risk to
[Sponsor’s name] and/or any others resulting from any use, directly or
indirectly, to which [Sponsor’s name] puts the Materials or any other materials
that could not have been made but for these Materials;


 


22





















 


(5)                                  that [Sponsor’s name] agrees to defend,
indemnify, and hold harmless TSRI, its trustees, officers, employees and agents
from any loss, claim, damage, or liability, of any kind whatsoever, which may
arise from [Sponsor’s name]’s use, storage or disposal of the Material or any
other material that could not have been made but for the Materials, except to
the extent such arise due to the gross negligence or willful misconduct of
TSRI;


 


(6)                                  that you provide us with your Federal Express
account number or an account number for another courier service, so that we may
ship the Materials to you.


 


The
Materials are to be used with caution and prudence in any experimental work,
since all of their characteristics are not known.  Moreover, they are not to be used for testing
in or treatment of humans.


 


If
you agree to accept these Materials under the above conditions, please sign the
enclosed duplicate copy of this letter, have it signed by an authorized
representative of [Sponsor’s name] and return one original to me.  Upon receipt of that confirmation I will
forward the Materials to you.


 


 


	
  THE SCRIPPS RESEARCH INSTITUTE

  
	
   

  
	
   

  	
   

  
	
  Jennifer L. Dyer

  
	
  Director, Technology Development

  
	
  [Date]

  



 


 


ACCEPTED:


 


 


	
   

  	
   

  	
   

  	
   

  
	
  Recipient’s Signature

  	
  Authorized Institutional Rep. Signature

  
	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Recipient’s Printed Name and Title

  	
  Authorized Rep. Printed Name and Title

  
	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Date

  	
  Date

  



 


23