DATED2007 GENVEC, INC. and COBRA BIOLOGICS LIMITED _____________________________________ MASTER SERVICES AGREEMENT Number: [GenVec 001] _____________________________________ December 21, 2007

 

DATED      2007

and

_____________________________________

_____________________________________

 

Confidential

 

* The asterisk denotes that confidential portions of this exhibit have been omitted in reliance on Rule 24b-2 of the Securities Exchange Act of 1934. The confidential portions have been submitted separately to the Securities and Exchange Commission.

 

Section
1	Definitions and Interpretations	4
2	Services	7
3	GenVec Materials	10
4	Capacity Reservation & Associated Fees	11
5	Delivery & Retention of Deliverables	11
6	Compensation & Payment	12
7	Defective Services or Deliverables	13
8	Services Involving the Release of Materials Processed by Third Parties	14
9	Term & Termination	14
10	Confidentiality	17
11	Rights in Data and Intellectual Property	18
12	Warranties	19
13	Indemnification	20
14	Insurance	21
15	Limitations of Warranties and Liabilities	22
16	Regulatory Matters	23
17	Notices	23
18	Force Majeure	23
19	Restriction on Hiring Cobra Personnel	24
20	Records, Access to Facility and Audits	24
21	Miscellaneous	25

 

Confidential

 

* The asterisk denotes that confidential portions of this exhibit have been omitted in reliance on Rule 24b-2 of the Securities Exchange Act of 1934. The confidential portions have been submitted separately to the Securities and Exchange Commission.

 

THIS MASTER SERVICES AGREEMENT (this “Agreement”), effective as of December 21, 2007 (the “Effective Date”), is by and between:

 

GENVEC, INC., a Delaware corporation, having its principal place of business at 65 West Watkins Mill Road, Gaithersburg, MD 20878 (“GenVec”), and

 

COBRA BIOLOGICS LIMITED, a corporation registered in England and Wales (Company Number 02710654) and a wholly owned subsidiary of Cobra Biomanufacturing Plc., having its principal place of business at The Stephenson Building, The Science Park, Keele, Staffordshire, ST5 5SP (“Cobra”).

 

 

GenVec is engaged in the research, development and clinical testing of pharmaceutical or biological products and requires from time to time the provision of certain services in respect of the production of its products.

 

Cobra provides contract research and development and technical consultancy services relating to the processing, development, scale-up and the generation of pharmaceutical and biological products.

 

GenVec desires that Cobra provide it with certain such consultancy and related services, as described below, and Cobra desires to do so, on the terms and conditions set forth below.

 

Confidential

 

* The asterisk denotes that confidential portions of this exhibit have been omitted in reliance on Rule 24b-2 of the Securities Exchange Act of 1934. The confidential portions have been submitted separately to the Securities and Exchange Commission.

 

 

 

 

1. Definitions and Interpretations. For purposes of this Agreement, the following definitions shall apply, and the terms defined herein in plural shall include the singular and vice-versa: In these conditions the following words have the following meanings:

 

1.1. Definitions.

 

Affiliate		With respect to any person or entity, any other person or entity which directly or indirectly controls, is controlled by or is under common control with such person or entity.
cGMP		Current Good Manufacturing Practices regulations and guidelines applicable to the manufacture of pharmaceuticals and biologics intended for use in clinical trials in the United States and/or the European Union, including those described in the U.S. Food, Drug & Cosmetics Act (21 U.S.C. Section 301 et seq.) and regulations promulgated thereunder, and in ICH guide Q7a “ICH Good Manufacturing Practice Guide for Active Pharmaceutical Ingredients,” as applied to investigational drugs (Section 19).
Capacity Reservation Fee		As defined in Section 4.1.
Claims		As defined in Section 13.1.
Cobra Materials		As defined in Section 2.4.
Committed Costs		Any costs incurred or committed to by Cobra in advance of the provision of Deliverables which cannot be cancelled or offset through reasonable commercial efforts, including the procurement of materials, equipment, maintenance and subcontract services, but excluding the costs of Facility modifications and associated capital equipment.
Confidential Information		As defined in Section 10.1.

 

Confidential

 

* The asterisk denotes that confidential portions of this exhibit have been omitted in reliance on Rule 24b-2 of the Securities Exchange Act of 1934. The confidential portions have been submitted separately to the Securities and Exchange Commission.

 

 

GenVec Property		As defined in Section 11.2.
Data		Any data, documentation or records resulting from or related to the performance of the Services.
Debarred Entity or Debarred Individual		An entity or individual, as applicable, that has been debarred by the United States Food and Drug Administration (“FDA”) pursuant to 21 U.S.C. §335(a) or (b).
Defect or Defective		With respect to Deliverables: Deliverables that, at the time of Delivery, fail to meet any purchase criteria, Specifications or other requirements provided in a Service Schedule or otherwise agreed to by the parties. With respect to Services: Services that fail to comply with Section 2.3 or any other requirements expressly provided therefor in a Service Schedule.
Deliverables		All reports and materials that Cobra is to provide to GenVec pursuant to a Service Schedule.
Delivery		The Shipper’s collection of Deliverables from Cobra’s facility.
Disclosing Party		As defined in Section 10.1.
Facility		As defined in Section 2.4.
First Reserved Date		As defined in Section 4.1.
Intellectual Property (“IP”)		All inventions, processes, improvements, patents, trade marks, trade names and copyrights (whether or not registered or capable of being registered), logos, know-how, trade secrets, Confidential Information and any other similar rights subsisting anywhere in the world, and all rights to apply for, and applications for, registered protection of the foregoing.

 

 

 

Pre-existing IP		As defined in Section 11.1.
Price		The total charges for Services to be performed pursuant to a Service Schedule.
Processed Materials		As defined in Section 8.1.
Project Manager		As defined in Section 2.6.
New IP		As defined in Section 11.1.
Qualified Person		As defined in Section 8.1.
Recipient		As defined in Section 10.1.
Reserved Slot		As defined in Section 4.1.
Services		All work to be performed by Cobra for GenVec under this Agreement and all Service Schedules.
Service Schedule		A written statement describing the Services to be performed with respect to a given project, the Price of such Services and any other terms relevant to such Services, which has been agreed upon and signed by both parties, as such statement may be modified from time to time upon the written agreement of the parties.
Shipper		As defined in Section 5.2.
Shortage		As defined in Section 7.1.
Specifications		The specifications, standards, limits, criteria and other requirements (if any) provided in a Service Schedule or otherwise agreed to by the parties to which Deliverables should conform.
Working Day		Any day other than a Saturday, Sunday or English public holiday.

 

Confidential

 

* The asterisk denotes that confidential portions of this exhibit have been omitted in reliance on Rule 24b-2 of the Securities Exchange Act of 1934. The confidential portions have been submitted separately to the Securities and Exchange Commission.

 

 

 

1.2. Interpretations.

 

1.2.1. Any reference in this Agreement to a “Article”, “Section,” “subsection” or “Schedule” is to an article, section, subsection or schedule of this Agreement.

 

1.2.2. Any phrase introduced by the terms "including," "include" or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding such phrase.

 

2. Services

 

2.1. Service Schedules.

 

2.1.1. Formation. This Agreement shall govern the relationship between Cobra and GenVec. Services to be performed hereunder shall be described in detail in a document (which may be titled a “Service Proposal”) that, once signed by both parties, shall be deemed to be a Service Schedule that is part of this Agreement. Cobra shall be obligated to perform those services that are described in a Service Schedule, as well as any agreed incidental service, function or responsibility not specifically described in a Service Schedule, but that is commercially reasonable and required for the proper performance and provision of such services, functions and responsibilities. With the prior agreement of both parties, those services not agreed as incidental will be carried out under an additional or amended Service Schedule executed by both parties in advance of such services being provided, in accordance with the provisions of Section 2.5 below.

 

2.1.2. Effect. Each Service Schedule, along with this Agreement, shall be deemed (a) the entire agreement between the parties with respect to the Services described in such Service Schedule, and (b) separate and distinct from any other Service Schedule combined with this Agreement.

 

2.1.3. Conflicts. To the extent the terms of any Service Schedule conflict with other terms of this Agreement, such other terms of this Agreement shall control, unless the Service Schedule expressly provides otherwise. No purchase order issued by GenVec shall modify or amend any terms of a Service Schedule or this Agreement.

 

 

Confidential

 

* The asterisk denotes that confidential portions of this exhibit have been omitted in reliance on Rule 24b-2 of the Securities Exchange Act of 1934. The confidential portions have been submitted separately to the Securities and Exchange Commission.

 

 

2.3. Performance Standards. Cobra shall perform the Services and deliver the Deliverables pursuant to the Service Schedule and in accordance with the Specifications, applicable laws, cGMPs and the terms of this Agreement. Cobra will carry out work in accordance with the Service Schedule, but cannot guarantee the outcome of development Services and in the case of cGMP Deliverables, cannot guarantee the outcome of such cGMP deliverables and related Services until such time as both parties have agreed *.

 

2.4. Facility; Resources. Unless otherwise set forth in a Service Schedule, Cobra shall perform the Services at Cobra’s manufacturing facility identified in the Service Schedule (the “Facility”). Cobra may not change the Facility without GenVec’s prior written consent. Cobra will ensure that the Facility has sufficient qualified personnel, production capacity, manufacturing resources, and quality systems necessary to properly perform the Services in accordance with this Agreement and that the Facility is operated in compliance with cGMPs and all applicable laws for such period as there are executed Service Schedules requiring the use of the Facility. Except to the extent otherwise provided in a Service Schedule or in any schedule of items to be supplied by GenVec (“GenVec Materials”), which can be added as an appendix to the Agreement with the written consent of both parties, Cobra shall obtain and maintain in the Facility sufficient dedicated equipment and other associated resources necessary to perform the Services (“Cobra Materials”). for such period as there are executed Service Schedules requiring the use of the Facility. Cobra shall only obtain Cobra Materials from reputable and verified suppliers, shall inspect and test such Cobra Materials, as appropriate, prior to engaging in any Services therewith, and shall establish a source of supply for all Cobra Materials sufficient to ensure Cobra’s ability to fulfill its obligations hereunder in a timely and cost-efficient manner. Cobra shall use commercially reasonable efforts to procure all Cobra Materials at the lowest prices reasonably available, consistent with such matters as security and sources of supply, quality of product, volume requirements, terms and conditions of supply and the Services Schedule. In no event shall Cobra use GenVec Materials either for itself or for third parties without the express, written consent of GenVec.

 

Confidential

 

* The asterisk denotes that confidential portions of this exhibit have been omitted in reliance on Rule 24b-2 of the Securities Exchange Act of 1934. The confidential portions have been submitted separately to the Securities and Exchange Commission.

 

 

2.5. Changed Services

 

2.5.1. Must be Agreed in Writing. No changes to a Service Schedule, Services thereunder or the Price of Services shall be implemented unless and until the parties have agreed on such change, in writing, signed by a person authorized to bind the respective party, through a written change order (a “Variation”) or an amendment to the Service Schedule.

 

2.5.2. Either Party May Request. Either party may request that changes be made to a given Service Schedule. If manifest changes are requested, then to the extent possible, Cobra shall provide GenVec with a written statement that describes in detail the proposed changes, any anticipated change in Price resulting therefrom and any other relevant facts that Cobra believes GenVec may reasonably require. Cobra shall implement such changes when and if the parties agree upon them, in writing.

 

2.5.3. Required Changes. If either party requests a change to a Service Schedule or Services thereunder that (a) the requesting party reasonably deems to be necessary in light of any Data, or (b) are required as a result of any changes in applicable laws, regulations (including those governing cGMP and good laboratory practices), safety requirements, best practices or manufacturing requirements, and the other party does not agree to such changes within 30 days of the request, the requesting party shall have the right to terminate this Agreement upon written notice to the other party, subject to the provisions of Section 9.3. Prior to the giving of any notice of change hereunder by Cobra, Cobra shall provide a written good-faith estimate of the costs of such change, and any change in price caused by such change shall be based on such costs, to which Cobra may add a commercially reasonable margin.

 

2.6. Project Management. Within 20 days from the Effective Date, each party shall designate in writing one person to be that party’s project manager (“Project Manager”) for issues associated with the Services and the performance of this Agreement. Each party my substitute or replace its Project Manager at any time by providing written notice to the other party. Each party shall make its Project Manager available for status meetings, telephone consultation, and otherwise as reasonably required to facilitate the performance of the Services in accordance with this Agreement. The Project Managers shall meet as needed to discuss (i) Cobra’s performance of the Services, (ii) action items from previous meetings to ensure completion of outstanding issues; and (iii) any personnel-related issues that affect the Services. The Project Managers shall also meet on a [quarterly] basis for business review meetings to discuss the status of the project and the performance of the Services. The Project Manager for Cobra (including any replacements thereof) shall have the requisite skills and experience to facilitate the performance of the Services in accordance with this Agreement.

 

Confidential

 

* The asterisk denotes that confidential portions of this exhibit have been omitted in reliance on Rule 24b-2 of the Securities Exchange Act of 1934. The confidential portions have been submitted separately to the Securities and Exchange Commission.

 

 

3. GenVec Materials

 

3.1. Provision of Materials. GenVec shall use commercially reasonable efforts to timely provide Cobra with any and all GenVec Materials described in the relevant Service Schedule or in the attached schedule of GenVec Materials. In the event that GenVec does not supply GenVec Materials on a timely basis, the agreed timelines for the program may be reasonably extended (e.g., by the same amount of time as the amount of the delay), unless such extension is not warranted under the circumstances.

 

3.2. Instructions. GenVec shall provide Cobra with all relevant instructions and information concerning the storage and handling of GenVec Materials, including all relevant health and safety information, (a) prior to delivery of such materials to Cobra or (b) where such information involves non standard and/or special requirements, at least 10 Working Days prior to delivery of such materials to Cobra.

 

3.3. Ownership and Use. GenVec Materials shall be and shall remain the property of GenVec. Cobra shall not use GenVec Materials for any purpose other than the provision of Services, without GenVec’s written consent, and shall not transfer or permit the transfer of any GenVec Materials to any third party, other than permitted sub-contractors in accordance with Section 2.2. Cobra shall limit access to GenVec Materials to employees and/or sub-contractors of Cobra who have a need to access such materials in connection with the provision of Services. Cobra shall not place a lien or security interest on, or otherwise encumber the GenVec Materials. Cobra shall conduct such preventative and other maintenance as is deemed commercially reasonable by Cobra or is agreed to in writing by Cobra and GenVec.

 

3.4. Lost or Damaged Materials. Cobra shall take reasonable measures to protect GenVec Materials from destruction, theft or loss while in the possession and/or control of Cobra. Cobra will have the risk of loss or damage to the GenVec Materials while in the possession of Cobra. In the event of loss or damage to the GenVec Materials during such period, Cobra will immediately notify GenVec. * Section 14 details the responsibilities of both parties with respect to insuring GenVec Materials. Cobra shall inspect, test, store, handle, and process the GenVec Materials in compliance with Specifications, cGMPs and all other applicable laws and upon receipt of GenVec Materials, Cobra will promptly inspect and evaluate the GenVec Materials to confirm compliance with the specifications therefor * and in accordance with a certification and/or inspection process agreed to in advance by both Cobra and GenVec.

 

Confidential

 

* The asterisk denotes that confidential portions of this exhibit have been omitted in reliance on Rule 24b-2 of the Securities Exchange Act of 1934. The confidential portions have been submitted separately to the Securities and Exchange Commission.

 

 

4. Capacity Reservation and Associated Fees

 

4.1. Capacity Reservation and Fee. A Service Schedule may provide for Cobra to reserve capacity and resources at its Facility for non-GMP R&D services and GMP production slots (each, a “Reserved Slot”), on particular consecutive dates (the first of which is referred to below as the “First Reserved Date”), during which Cobra will perform relevant Services. In such a case, the Service Schedule shall require that GenVec pay, prior to the commencement of Services thereunder, a specified non refundable fee (a “Capacity Reservation Fee”), as additional consideration for services under the Service Schedule, such fee to be related to such reservation, as detailed in the Service Schedule, and which shall be creditable against future Services to be performed under the Service Schedule, but shall not be refundable except as expressly provided herein. *.

 

4.2. Changes to Reserved Slots. If GenVec makes a written request to change a Reserved Slot, Cobra shall use commercially reasonable efforts to accommodate the request, subject to availability of an appropriate Reserved Slot. *.

 

4.3. Cancellation of Reserved Slots.

 

*

 

4.4. Exceptions. *.

 

5. Delivery and Retention of Deliverables

 

5.1. Timing. Cobra shall use commercially reasonable efforts to have the Deliverables ready and available for pickup by the Shipper on the dates specified in the relevant Service Schedule. However, such dates are not guaranteed. Cobra shall notify GenVec when Deliverables are available for collection and shall promptly inform GenVec of any delay in such availability.

 

5.2. Manner of Delivery. Unless the parties agree otherwise in writing, (a) all Deliverables shall be made available, at the Facility, for loading by a common carrier agreed upon by the parties (the “Shipper”) and shipment to GenVec or its designee, and (b) shipments shall be *. The Deliverables shall be collected within * of Cobra’s notice to GenVec of their availability (where deliverables require release prior to use, the Deliverables will not be considered available until such time as the release is complete), during regular business hours, at a date and time agreed by the parties, in advance. If the Deliverables are not collected within the *, then Cobra will, at the request of GenVec (a) dispatch Deliverables to GenVec, for a fee equal * or (b) retain the Deliverables at the facility, for a fee equal to *, until the Deliverables have been collected.

 

Confidential

 

* The asterisk denotes that confidential portions of this exhibit have been omitted in reliance on Rule 24b-2 of the Securities Exchange Act of 1934. The confidential portions have been submitted separately to the Securities and Exchange Commission.

 

 

5.3. Retention of Deliverables or GenVec Materials. If GenVec wishes Cobra to retain at its facility (a) GenVec Materials or samples of Deliverables over and above those Cobra is required by law or regulation to retain, or (b) Deliverables that are available for collection by the Shipper, such retention shall be subject to the parties’ agreement to such retention, in additional consideration for the services provided under the relevant Service Schedule, a fee equal to * will be payable by GenVec. GenVec will be responsible for the insurance of such Deliverables as detailed in Section 14.

 

6. Compensation and Payment

 

6.1. Prices of Services. The Prices of Services to be performed pursuant to a given Service Schedule shall be as provided in such Service Schedule.

 

6.2. Taxes. Prices are exclusive of any applicable VAT and/or other sales/transaction taxes, for which GenVec shall additionally be liable and as such Cobra reserves the right to charge GenVec for any such VAT and/or other sales/transaction taxes.

 

6.3. Other Costs. Unless provided otherwise in a Service Schedule, any costs of shipping, consumables, insurance or importation of Deliverables and GenVec Materials, raw materials or of packaging materials, * shall be added by Cobra from time to time to give a total amount, and in additional consideration for services under the Service Schedule a fee equal to the total amount shall be charged to GenVec separately.

 

6.4. Travel Expenses. GenVec shall reimburse Cobra for all reasonable, necessary and documented travel and accommodation expenses involved in the provision of Services, to the extent such expenses are agreed upon by the parties, in writing and are consistent with GenVec’s travel reimbursement policy (a copy of which has been provided to Cobra), provided that such request for expenses conforms to and complies with the then-applicable Travel and Expense Reimbursement Policy of .GenVec.

 

6.5. Timing of Payments. Capacity Reservation Fees shall be due * after the parties’ execution of the Service Schedule to which such fees relate and GenVec’s receipt of invoice, and in any case prior to Cobra’s making a firm reservation of capacity for the relevant Services. The balance of the Price of Services shall be payable within * of GenVec’s receipt of applicable invoice. Timing of invoicing shall be as provided in the relevant Service Schedule.

 

Confidential

 

* The asterisk denotes that confidential portions of this exhibit have been omitted in reliance on Rule 24b-2 of the Securities Exchange Act of 1934. The confidential portions have been submitted separately to the Securities and Exchange Commission.

 

 

6.6. Late Payments. Payments shall be deemed to be made only when Cobra has received cash or cleared funds covering the amounts due. If GenVec fails to make any payment in full on its due date, Cobra shall charge GenVec interest on the unpaid balance at the rate of *. In the event that the invoice is queried within * of receipt, Cobra will not apply this charge until * after such time as the query has been resolved. Both parties agree to act in good faith and act reasonably to resolve all queries promptly.

 

7. Defective Services or Deliverables

 

7.1. Acceptance and Rejection.

 

7.1.1

GenVec shall have * following GenVec’s receipt of Deliverables, (i) to accept them (ii) to notify Cobra, in writing that the Deliverables do not meet the warranties set forth in Article 12, cGMPs or the agreed Specifications (in each case, “Defective”) and/or (iii) to notify Cobra, in writing, that Deliverables due to GenVec are missing from the shipment (a “Shortage”). Upon request by Cobra, GenVec shall return to Cobra, at Cobra’s expense, any Deliverables rejected hereunder as defective, unless it would not be reasonably possible to do so. Failure to notify Cobra of a Defect or Shortage within such * period *, or to return rejected Deliverables, upon request by Cobra, as required under this Section 7.1, shall be deemed an acceptance of the relevant Deliverables and/or Services. The criteria for testing that Deliverables are not Defective will be agreed to in advance in writing by both Cobra and GenVec.

 

7.1.2

If GenVec cannot determine that the Deliverables are Defective within the * period described above through reasonable testing at the date of delivery (a “Latent Defect”), then GenVec shall be entitled to notify Cobra of the Latent Defect within * of the discovery thereof. Following such notification and upon request by Cobra, GenVec shall return to Cobra, at Cobra’s expense, any Deliverables rejected under this Section 7.1.2 as Defective, unless it would not be reasonably possible to do so. Latent Defects shall only be those Defects that are the result of a cause assignable to the fault of Cobra, *.

 

7.2. Disputes Regarding Defects. In the event of a dispute over whether Deliverables are Defective, the parties shall provide a representative sample of such Deliverables to an agreed upon, independent testing laboratory, for analysis and a final, binding determination of whether the Deliverables are Defective and the cause thereof. The party that the determination disfavors shall bear the costs of the analysis.

 

Confidential

 

* The asterisk denotes that confidential portions of this exhibit have been omitted in reliance on Rule 24b-2 of the Securities Exchange Act of 1934. The confidential portions have been submitted separately to the Securities and Exchange Commission.

 

 

7.3. Remedies for Defective Deliverables/Services. With respect to (a) any Deliverables timely rejected pursuant to Section 7.1.1, or rejected pursuant to 7.1.2. and, in each case, determined by Cobra or an independent laboratory, pursuant to Section 7.2, to be Defective, and (b) any Shortages, Cobra shall, with the agreement of GenVec, *, at no additional charge to GenVec, at which time the Deliverables shall be subject to further acceptance testing by GenVec.

 

7.4. GenVec’s Sole of Remedy. The remedy provided in Section 7 shall be GenVec’s sole remedy for the Delivery of Defective Deliverables or the performance of Defective Services hereunder.

 

8. Services Involving the Release of Materials Processed by Third Parties.

 

8.1. Access and Assistance to Qualified Person. This Article 8 applies to Services involving the release by Cobra, through a Qualified Person (as that term is defined in Article 48 of Directive 2001/83/EC), of materials that have been processed, in whole or in part, by a third party (“Processed Materials”). In any such case, GenVec, at its own cost, shall (a) ensure that the Qualified Person is named on any relevant marketing authorization and shall (a) provide the Qualified Person with unrestricted access to GenVec’s premises, personnel, procedures, documentation and information (including any dossiers upon which marketing authorizations have been granted, together with any variations affecting such approvals) relevant to or associated with such product and (b) provide the Qualified Person with such assistance as is reasonably requested by the Qualified Person from time to time.

 

8.2. Replacement of Qualified Person. Where a Qualified Person named in the Service Schedule is no longer able to perform the Services, GenVec shall, at Cobra’s cost, provide Cobra with such assistance as is necessary and/or desirable to have an alternative Qualified Person named on any relevant marketing authorization.

 

8.3. Limitation on Liability for Services by Qualified Person. Neither Cobra nor any Qualified Person shall have any liability to GenVec in any way related to the release of a Processed Material, except where the liability arises as a direct result of a violation by the Qualified Person of his statutory obligations as a Qualified Person.

 

9. Term and Termination

 

9.1. Term. The term of this Agreement shall be five (5) years from the Effective Date, unless (a) at that time, Services are being performed pursuant to a Service Schedule, in which case, the term shall extend through the completion of all pending Service Schedules, or (b) this Agreement is terminated in accordance with Section 9.2.

 

Confidential

 

* The asterisk denotes that confidential portions of this exhibit have been omitted in reliance on Rule 24b-2 of the Securities Exchange Act of 1934. The confidential portions have been submitted separately to the Securities and Exchange Commission.

 

 

9.2. Termination.

 

9.2.1. Termination by Cobra. Cobra may terminate this Agreement or Services remaining to be performed under any Service Schedule, at any time, with or without cause, upon at least 720 days’ written notice to GenVec, subject to Section 9.3.

 

9.2.2. Termination by GenVec. GenVec may terminate this Agreement or Services remaining to be performed under any Service Schedule, at any time, with or without cause, upon at least 60 days’ written notice to Cobra (subject to this section 9) on condition that at same time as serving written notice on Cobra GenVec pays to Cobra a termination payment calculated in accordance with [Appendix 2], (which shall apply to termination of the first Service Schedule, A393) and any other termination payment specified in any other Service Schedule.

 

[If GenVec terminates this agreement, Cobra shall use commercially reasonable efforts to fill any vacated reserved slots with another customer.  GenVec shall be liable only for the portion of the payment of the relevant Termination Fee that was charged to GenVec and not recovered by Cobra from another customer and after taking into account all reasonable and documented Services and Deliverables provided to GenVec in connection with such Reserved Slot and any Committed Costs prior to notice of cancellation.]

 

9.2.3. For Breach. Either party may terminate this Agreement or the Service Schedule at issue upon thirty 30 days notice informing the other party that it is in material breach of any of its obligations hereunder and stating the reasons therefor, unless the notified party has cured such breach within such 30-day notice period.

 

9.2.4. For Insolvency. Either party may terminate this Agreement upon the occurrence of any of the following events: (a) the other party makes an assignment for the benefit of its creditors or files a voluntary petition under federal or state bankruptcy or insolvency laws, (b) a receiver or custodian is appointed for all or substantially all of the other party's business, (c) proceedings are instituted against the other party under federal or state bankruptcy or insolvency laws that have not been stayed or dismissed within sixty (60) days, (d) all or substantially all of the other party's business or assets become subject to attachment, garnishment or other process or (e) a court or other governmental authority of competent jurisdiction determines that the other party is insolvent.

 

Confidential

 

* The asterisk denotes that confidential portions of this exhibit have been omitted in reliance on Rule 24b-2 of the Securities Exchange Act of 1934. The confidential portions have been submitted separately to the Securities and Exchange Commission.

 

 

 

9.3.3.2. If Cobra does not receive such a request from GenVec within * of termination, Cobra shall send written notice to GenVec. If GenVec does not respond within * of receipt of such notice, Cobra shall be entitled to destroy, at GenVec’s cost any and all such GenVec Materials, samples of Deliverables, Data and other information relating to the relevant Service Schedule(s), except for any that are required to be retained at Cobra’s facility, pursuant to Section 5.3.

 

 

10.4. Responsibility for Employees and Agents. Each party shall be responsible for the acts and/or omissions of its employees, agents and representatives under Sections 10.1 – 10.3 (whether or not they remain its employees and/or representatives), as if they were such party’s own acts or omissions.

 

 

11.3. GenVec License. GenVec hereby grants to Cobra a nonexclusive, royalty-free, limited, non-transferable license, for the term of this Agreement to use the GenVec Property and GenVec’s Pre-existing IP and sublicense the same to subcontractors approved by GenVec, but in each case, solely to the extent necessary to perform the Services in accordance with this Agreement and to otherwise comply with the obligations hereunder. *.

 

 

16. Regulatory Matters.  In addition to any other record-keeping and reporting requirements set forth herein or in a Service Schedule, Cobra shall keep all records and reports required to be filed with the FDA and any other governmental agencies in connection with the performance of the Services, and shall make the Deliverables produced hereunder and the facilities used in performing the Services available at reasonable business hours for inspection by representatives of such agencies. Cobra shall notify GenVec of any inspection, investigation or inquiry by the FDA or other governmental agency that relates in any way to Cobra’s performance under any Service Schedule, and shall send GenVec a copy of any report on the results of any such inspection, investigation or inquiry. Cobra shall fully cooperate with GenVec during any such inspection, investigation or other inquiry, including, but not limited to, allowing a representative of GenVec to be present during all portions of any such inspection, investigation or other inquiry and sharing with GenVec any other information related thereto to the extent relevant to the performance of the Services. Cobra shall discuss any response to observations or notifications received in connection with any such inspection, investigation or other inquiry and shall give GenVec an opportunity to comment upon any proposed response before it is made.