Exhibit 10.8
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RESEARCH AGREEMENT, entered into as of the 15th day of March, 2004, by
and between BIOLIFE SOLUTIONS, INC., a Delaware corporation having its principal
place of business at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
("BioLife") and CELL PRESERVATION SERVICES, INC. a New York corporation having
its principal place of business at ▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("CPSI").
W I T N E S S E T H:
WHEREAS, BioLife specializes in (a) providing contract-based services
for the development of cryopreservation processes and (b), based upon its core
technology ("BioLife's Technology"), developing, manufacturing and marketing
cryopreservation solutions (the "Solutions") that markedly improve the
biological processing and preservation of human and mammalian cells and tissues;
and
WHEREAS, substantially all of the research conducted by BioLife is
conducted in-house and funded through Small Business Innovative Research
("SBIR") grants from federal governmental agencies, including the National
Institutes of Health ("NIH"); and
WHEREAS, BioLife desires to outsource a substantial portion of its
research, including the preparation and processing of applications for SBIR
grants; and
WHEREAS, CPSI specializes in providing contract-based research and
development services; and
WHEREAS, the parties wish to establish a format pursuant to which CPSI
will (a) take over the processing of existing applications for SBIR grants
applied for by BioLife and assigned to CPSI pursuant to this Agreement ("Current
Projects"), (b) apply for additional SBIR grants for future research projects
("Future Projects") as maybe requested by BioLife, (c) perform a substantial
portion of the principal work to be done, in terms of (i) time spent, and (ii)
research, in connection with Current Projects and Future Projects (the
"Research"), and (d) utilize BioLife personnel as consultants with respect to
such Research; and
WHEREAS, the parties intend that (a) this Agreement serve as a Master
Agreement setting forth (i), in general, the obligations of the parties with
respect to Current Projects and Future Projects, and (ii) the ownership of any
technology, inventions, designs, ideas and the like emanating from the Current
Projects, Future Projects and Research, and (b), at appropriate times, an
addendum ("Addendum") to this Master Agreement be prepared with respect to each
Current Project and Future Project setting forth (i) the assignment thereof from
BioLife to CPSI, (ii) the Research to be performed by CPSI or by consultants,
including BioLife personnel, with respect to such Current Project or Future
Project, and (iii) the fees and other expenses to be paid to BioLife and others
in connection with such Current Project or Future Project.
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WHEREAS, BioLife is willing to grant to CPSI a limited license with
respect to BioLife's Technology to enable CPSI to carry out the Research with
respect to Current Projects and Future Projects; and
WHEREAS, CPSI desires that with respect to each Current Project and
Future Project, BioLife provide CPSI with (a) suitable facilities in which to
conduct the Research, including basic research equipment and office equipment
(including computers and software) and furniture suitable to enable CPSI to
perform the Research ("Facilities") in compliance with all federal laws, rules
and regulations, and (b) management/administrative/clerical/personnel and
services ("Management Services") in connection with the performance of the
Research; and
WHEREAS, BioLife has a Current Project from the NIH titled "Hypothermic
and Cryopreservation of Human Blood Vessels" (the "Pending Application"), which
Pending Application BioLife wishes to assign herein to CPSI for the purpose of
CPSI pursuing the grant with respect thereto and, thereafter, performing the
Research required in connection with any grant awarded pursuant thereto;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, it is agreed as follows:
1. BioLife's Technology.
(a) Description. A description of BioLife's Technology is set
forth on Appendix A attached hereto and made a part hereof. As BioLife's
Technology expands, addendums to Appendix A shall be attached hereto setting
forth the new developments.
(b) Grant of Limited License. BioLife hereby grants to CPSI,
and CPSI hereby accepts from BioLife, a non-exclusive, royalty free license
(with no right to sublicense others) to use the BioLife Technology solely for
the purpose of conducting the Research in connection with the Current Projects
(including the Pending Application) and Future Projects.
(c) Delivery of BioLife Know How. BioLife shall provide CPSI
with relevant know-how (including any documentation with respect thereto) to
enable CPSI to apply BioLife's Technology to the Research required in connection
with the Current Projects and Future Projects.
2. Obligations of the Parties.
(a) Obligations of BioLife. BioLife shall:
(i) Current Projects/Future Projects. From time to
time (A) assign to CPSI applications with respect to Current Projects, and (B)
request CPSI to make application for Future Projects and, in connection with any
grants awarded pursuant thereto, provide personnel as consultants to CPSI), as
may be mutually determined by the parties within the confines of the rules and
regulations applicable to the performance of Research with respect to SBIR
grants.
(ii) Facilities. Provide CPSI with the Facilities.
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(iii) Provision of Management Services.
(A) Administrative/Clerical/Secretarial
Personnel. Provide CPSI with administrative, clerical and secretarial personnel.
(B) Management/Administrative Services.
Provide CPSI with management and administrative services as set forth on
Appendix B attached hereto and made a part hereof.
(C) Maintenance of Books and Records.
Prepare and maintain records pertaining to the execution of each Current Project
and Future Project.
(D) Utilities/Supplies/Etc. Provide
utilities, telephone and fax services, office supplies, and other similar
services as shall be necessary and appropriate to permit CPSI to perform the
Services;
(E) Housekeeping/Janitorial Services.
Provide maintenance and repair of the facilities, including housekeeping and
janitorial services.
(b) Obligations of CPSI. CPSI shall:
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(i) Current Projects/Future Projects. At the request
of BioLife, (A) accept assignments of Current Projects, and (B) make application
for Future Projects, and, in each case, use commercially reasonable best efforts
to process the application with the applicable federal agency so as to maximize
the possibility of a grant with respect thereto.
(ii) Research. With respect to each Current Project
and Future Project, (A) be responsible for conducting the Research with respect
thereto, in accordance with the criteria set forth in the application therefor,
and (B), as mutually agreed to by the parties and within the confines of the
rules and regulations applicable to the performance of Research with respect to
SBIR grants, utilize BioLife's personnel as consultants.
(iii) Research Personnel. With respect to each
Current Project and Future Project, provide suitable experienced personnel,
including, without limitation, a Principal Investigator/Program Director, to
conduct the Research with respect thereto.
(iv) Compliance with Laws/Filing of Reports. With
respect to each Current Project and Future Project, comply with all federal
laws, rules and regulations applicable to SBIR grants; and file all necessary
forms and reports with the federal agency awarding the SBIR grant.
(v) Facilities and Management Services. With respect
to each Current Project and Future Project, utilize the Facilities and
Management Services.
(vi) Payment of Expenses. With respect to each
Current Project and Future Project, pay all of (A) CPSI's expenses in connection
therewith, including, without
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limitation, payments to BioLife for Solutions utilized in connection with the
Research, and (B) BioLife's reasonable expenses in connection therewith,
including reimbursement, if any, of expenses incurred by BioLife for BioLife
personnel retained by CPSI as consultants, including, without limitation, travel
expenses ("BioLife Expenses").
(vii) Technology. With respect to each Current
Project and Future Project, identify patentable technology resulting from the
Research; and create a path (excluding covering costs associated with executing
patents, clinical trials, etc. on said technology), through its relationship
with BioLife, that will facilitate bringing any new technology to market.
(viii) Progress Reports. With respect to each Current
Project and Future Project, prepare detailed quarterly progress reports for
BioLife with respect to all Research.
(ix) Access to Records. With respect to each Current
Project and Future Project, permit BioLife, through its duly authorized
representatives, to have access, during normal business hours and upon not less
than three (3) days prior notice, to the books and records maintained by CPSI
relating to the Research for the purpose of auditing the same.
(x) Payment of Fees for Research, Facilities and
Management Services. Pay to BioLife fees for (A) Research performed by BioLife,
(B) use of the Facilities, and (C) Management Services.
3. Appendices.
(a) Appendix A sets forth a description of BioLife Technology.
(b) Appendix B sets forth the Management/Administrative
Services to be provided by BioLife to CPSI.
(c) Appendix C. With respect to each Current Project and
Future Project, an Appendix C (consecutively numbered C-1, C-2, etc.), in the
form attached hereto, shall be attached to this Agreement or the Addendum
setting forth the grant title and number and the award date and performance
period. Each Appendix C also shall (i) breakdown the amount of the award into
its components (a) the amount attributable to direct costs (b) the amount of
direct cost attributable to equipment, (c) net direct costs (direct costs less
cost of equipment,) (d) indirect costs and (e) any fixed fee, and (ii) set forth
(a) the fee to be paid to BioLife for the use of the Facilities, (b) the fee to
be paid to BioLife for the Management Services, (c) estimated amounts, if any,
to be paid to BioLife for BioLife Expenses and Solutions, and cost allocations
for consultants. The amounts set forth on any Appendix C may be modified from
time to time by the parties to reflect any adjustments made to estimates made by
the parties or any agreed to changes made by the parties.
5. Intellectual Property Ownership. As between the parties, BioLife (a)
is the owner of all right, title and interest in and to BioLife's Technology and
the Solutions (collectively, "Intellectual Property"), and (b) shall own all
right, title and interest in and to any technology, inventions, designs, ideas
and the like (whether or not patentable) that emanates from the
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Current Projects, Future Projects and Research. CPSI agrees to execute all
documents, including, but not limited to assignments, that may be necessary to
secure BioLife's ownership in the Intellectual Property.
6. The Pending Application.
(a) Assignment of Pending Application. BioLife hereby assigns,
sells, transfers and sets over (collectively, the "Assignment") to CPSI all of
BioLife's right, title, benefit, privileges and interest in and to, and all of
BioLife's burdens, obligations and liabilities in connection with, the Pending
Application. CPSI hereby accepts the Assignment and assumes and agrees to
observe and perform all of the duties, obligations, terms, provisions and
covenants, and to pay and discharge all of the liabilities of BioLife to be
observed, performed, paid or discharged from and after the date hereof, in
connection with the Pending Application. BioLife represents and warrants to CPSI
that BioLife has done nothing improper with respect to the Pending Application
that would create any liability or cost to CPSI with respect thereto.
(b) Allocation of Research Upon Award of Grant Under Pending
Application. Upon the approval of the Pending Application and the award of a
grant with respect thereto, the Research to be performed by CPSI, and others
(including personnel of BioLife retained by CPSI as consultants) shall be as set
forth on Appendix C-1 attached hereto and made a part hereof.
(c) Fees to BioLife for Research, Facilities and Management
Services. CPSI shall pay to BioLife the fees set forth on Appendix C-1 attached
hereto and made a part hereof, for Research, the Facilities and Management
Services in connection with any grant regarding the Pending Application.
(d) Other Expenses. Appendix C-1 sets forth any other expenses
(estimated or otherwise) to be paid by CPSI in connection with any grant
pursuant to the Pending Application, including BioLife Expenses.
(e) Equipment. To the extent that CPSI expends monies from the
grant for the purchase of equipment, at any time after the completion of the
Research with respect to the Pending Application, to the extent CPSI does not
wish to retain ownership of such equipment, BioLife shall have the right to
purchase such equipment from CPSI at its depreciated value at the time of such
purchase.
7. Representations and Warranties.
(a) By BioLife. BioLife hereby represents and warrants to CPSI
as follows:
(i) BioLife has all necessary power and authority to
enter into, and be bound by the terms of, this Agreement, to grant the rights,
licenses, and privileges granted to CPSI herein, and to perform all of its
obligations hereunder. The execution, delivery and performance of this Agreement
have been duly authorized by BioLife.
(ii) This Agreement constitutes the legal, valid, and
binding obligation of BioLife, enforceable against BioLife in accordance with
its terms, except as such enforceability
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may be limited by bankruptcy, insolvency or other similar laws affecting the
enforcement of creditors' rights in general and subject to general principles of
equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law).
(iii) The execution of this Agreement by BioLife and
the consummation of the Research contemplated hereby does not conflict with or
result in a default under or breach of (A) BioLife's Articles of Incorporation
or By-laws or other organizational documents; (B) any agreement, indenture,
mortgage, contract or instrument to which BioLife is bound or by which any of
its properties or assets is subject; (C) any order, writ, injunction, decree or
judgment of any court or governmental agency applicable to BioLife or to which
any of its assets is bound; or (D) any law, rule, or regulation applicable to
BioLife or by which any of its assets is bound.
(iv) (A) BioLife owns, or possesses adequate licenses
or other rights to, all of the Intellectual Property, free and clear of all
liens, encumbrances, security interests, or rights of any other party
whatsoever, (B) the Intellectual Property is not the subject of any pending or
threatened litigation, claim, or assessment contesting BioLife's ownership of
(or right to use) the Intellectual Property, and (C) CPSI's use of the
Intellectual Property as contemplated herein, will not violate or infringe upon
any copyright, trademark, patent, or any other intellectual property right or
proprietary right of any person.
(b) By CPSI. CPSI hereby represents and warrants to BioLife as
follows:
(i) CPSI has all necessary power and authority to
enter into, and be bound by the terms of, this Agreement, to accept the rights,
licenses, and privileges granted by BioLife herein, and to perform all of its
obligations hereunder. The execution, delivery and performance of this Agreement
have been duly authorized by CPSI.
(ii) This Agreement constitutes the legal, valid, and
binding obligation of CPSI, enforceable against CPSI in accordance with its
terms, except as such enforceability may be limited by bankruptcy, insolvency or
other similar laws affecting the enforcement of creditors' rights in general and
subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
(iii) The execution of this Agreement by CPSI and the
consummation of the Research contemplated hereby does not conflict with or
result in a default under or breach of (A) CPSI's Articles of Incorporation or
By-laws or organizational documents; (B) any agreement, indenture, mortgage,
contract or instrument to which CPSI is bound or by which any of its properties
or assets is subject; (C) any order, writ, injunction, decree or judgment of any
court or governmental agency applicable to CPSI or to which any of its assets is
bound; or (D) any law, rule, or regulation applicable to CPSI or by which any of
its assets is bound.
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8. Indemnification.
(a) Scope. Each party to this Agreement (the "Indemnifying
Party") will indemnify, defend, and hold harmless the other party and such other
party's officers, managers, directors, shareholders, members, agents, and
employees (each, an "Indemnified Party"), from and against, for and in respect
of, any and all losses, liabilities, claims, damages, deficiencies, obligations,
and expenses (including costs of investigation and defense and reasonable
attorney's fees and expenses) suffered or incurred by an Indemnified Party which
arise from or are related to any breach by the Indemnifying Party of any of its
representations, warranties, or covenants contained in this Agreement or in any
other document, writing or instrument delivered pursuant to this Agreement.
(b) Procedures. If a claim is made against an Indemnified
Party for which it is entitled to indemnification hereunder, then such
Indemnified Party shall give notice of such claim to the Indemnifying Party
within a reasonable time after the assertion thereof, but failure to so notify
the Indemnifying Party shall not relieve it from any liability which it may have
to the Indemnified Party hereunder unless such omission materially prejudices
the Indemnifying Party's ability to defend against such claim. If a claim is
made against an Indemnified Party and it notifies the Indemnifying Party as
herein provided, then the Indemnifying Party, subject to the provisions set
forth herein, shall be entitled to participate at its own expense in the defense
thereof or, if it so elects within a reasonable time after receipt of such
notice, to assume the defense thereof, which defense shall be conducted by
counsel chosen by it and reasonably satisfactory to the Indemnified Party
defendant or defendants in any suit so brought. The Indemnified Party will have
the right to employ its own counsel in any such action, but the fees, expenses,
and other charges of such counsel will be at the expense of such Indemnified
Party unless (i) the employment of counsel by the Indemnified Party has been
authorized in writing by the Indemnifying Party, (ii) the Indemnified Party has
reasonably concluded (based on advice of counsel) that there may be legal
defenses available to it or other indemnified parties that are different from or
in addition to those available to the Indemnifying Party, (iii) a conflict or
potential conflict exists (based on advice of counsel to the Indemnified Party)
between the Indemnified Party and the Indemnifying Party (in which case the
Indemnifying Party will not have the right to direct the defense of such action
on behalf of the Indemnified Party), or (iv) the Indemnifying Party has not
employed counsel to assume the defense of such action within a reasonable time
after receiving notice of the commencement of the action, in each of which cases
the reasonable fees, disbursements, and other charges of counsel will be at the
expense of the Indemnifying Party. It is understood that the Indemnifying Party
shall not, in connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more than one
separate firm of attorneys, in the aggregate, for the Indemnified Party and
controlling persons thereof.
(c) Limitation on Damages. Anything herein to the contrary
notwithstanding, neither party will be liable to the other for indirect,
incidental, punitive, or consequential damages or the loss of anticipated
business or profits arising from any breach of this Agreement, even if notice is
given of the possibility of such damages.
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9. Term and Termination.
(a) Term. The term of this Agreement shall be three (3) years
commencing on the date hereof (the "Term"). The Term automatically shall be
renewed for successive one-year terms unless written notice of non-renewal is
given by either party at least sixty (60) days prior to the end of the then
Term.
(b) Termination by Either Party. Notwithstanding anything to
the contrary contained herein, either party (the "Terminating Party") shall have
the right to cancel this Agreement at any time upon the occurrence of any of the
following events:
(i) the other party's failure to cure any material
breach of this Agreement within thirty (30) days after written notification of
such breach by the Terminating Party;
(ii) the other party engaging in any act or failure
to act related to the subject matter of this Agreement which is determined by a
court of competent jurisdiction to be illegal or an unfair or deceptive trade
practice in violation of applicable law or accepted standards of ethical
conduct;
(iii) if there shall be filed against the other party
any petition or application for relief under the Bankruptcy Code which is not
discharged or bonded to the satisfaction of the Terminating Party within sixty
(60) days, or if the other party consents to any order for relief under the
Bankruptcy Code;
(iv) if the other party ceases functioning as a going
concern; or if the other party makes a general assignment for the benefit of
creditors or calls a meeting of creditors for the purpose of obtaining any
financial accommodation or concession; or if a receiver or trustee is appointed
for all or any portion of the other party's assets; or if the other party files
any petition or application for relief under the Bankruptcy Code; or
(v) by mutual written consent of the parties.
(c) Termination by BioLife BioLife shall have the right to
cancel this agreement in the event of the sale of all or substantially all of
its businesses and assets, the merger of BioLife with or into another entity
that results in a change of more than fifty percent (50%) of the equity
ownership of BioLife, or the sale of all or substantially all of the outstanding
equity of BioLife or the issuance of new equity that results in the holders
thereof obtaining more than fifty percent (50%) of the outstanding equity of
BioLife.
(d) Effect of Termination.
(i) In addition to any other rights or remedies a
party may have hereunder, upon any termination or expiration of this Agreement
(A) CPSI shall (1) cease conducting Research and shall discontinue all uses of
the Intellectual Property, and (2) pay to BioLife any monies due and owing to
BioLife pursuant to the terms hereof, and (B) BioLife shall have the option,
exercisable concurrently the expiration or termination of this Agreement by
giving written notice of such exercise to CPSI, to repurchase any Solutions then
in the possession of CPSI
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(the "Available Solutions"), at the prices originally billed to CPSI with
deductions for moneys due or to become due to BioLife under this Agreement.
(ii) If within twenty (20) days after expiration or
termination of this Agreement BioLife does not exercise the repurchase option
with respect to all of the Available Solutions, then CPSI shall immediately
destroy and dispose of all Available Solutions.
10. Confidential Information.
(a) In General. CPSI acknowledges that by reason of its
relationship with BioLife under this Agreement it will have access to certain
Confidential Information of BioLife, the value of which would be impaired if
such Confidential Information were disclosed to third parties. CPSI may not
disclose the terms of this Agreement to any third party without the consent of
BioLife; provided, however, that such disclosure may be made to the extent
required by law. As used herein the term "Confidential Information" shall mean
any information disclosed that is confidential to BioLife, including, without
limitation, all ideas, concepts, structures, specifications, documentation,
designs, techniques, drawings, hardware, software, data, prototypes, processes,
technology, know how, methods of design and/or development, inventions, and/or
other technical, business, marketing, planning information and/or data
regardless of how such information is transmitted (including orally, and/or in
documentary and/or machine readable form, and/or in the form of samples from
which the information may be derived).
(b) Restrictions on Use and Disclosure. CPSI shall only
reproduce, use, and/or disclose Confidential Information to the extent necessary
for the purposes of defining, considering, and performing work in compliance
with this Agreement, and even then only to those persons who (i) have a "need to
know" in connection with the activities contemplated by this Agreement and (ii)
have obligations to maintain the confidentiality of such information that are
comparable in scope to those set forth hereunder.
(c) Exceptions. The following information shall not be deemed
Confidential Information and shall not be subject to the restrictions of this
Section 9: information that (i) is or becomes a matter of public knowledge
though no fault of or action by CPSI; (ii) was rightfully in CPSI's possession
prior to disclosure by BioLife; (iii) subsequent to disclosure, is rightfully
obtained by CPSI from a third party who is lawfully in possession of such
information without restriction; (iv) is independently developed by CPSI without
resort to BioLife's Confidential Information; or (v) is required by law or
judicial order to be disclosed, provided that, prior to such disclosure, CPSI
has furnished written notice to BioLife of CPSI's intent to disclose the
information in order to afford BioLife a reasonable opportunity to seek a
protective order. Nothing in this agreement shall require CPSI to maintain the
confidentiality of information that, upon the advice of counsel, CPSI believes
it is required by law to disclose.
(d) Return. Whenever requested by BioLife, CPSI shall
immediately return to BioLife or, at BioLife's option, destroy any and all
manifestations of the Confidential Information that BioLife may designate.
CPSI's obligations under this Section shall survive for a period of two (2)
years from the date of termination of this Agreement.
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(e) Ownership. All Confidential Information of BioLife shall
remain the property of BioLife. CPSI's duty to protect BioLife's Confidential
Information commences upon CPSI's receipt of such Confidential Information.
11. Miscellaneous
(a) Headings. Caption and section headings used in this
Agreement are for convenience only; they are not a part of this Agreement and
shall not be used in construing it. The parties are sophisticated and have had
the opportunity to review this Agreement with their respective counsel.
Accordingly, the terms of this Agreement shall be construed in accordance with
their fair meaning, and there shall be no presumption applied against any party
for having drafted or participated in drafting any such terms.
(b) Successors and Assigns. Subject to paragraph (i), this
Agreement shall be binding upon and inure to the benefit of the parties and
their respective successors and permitted assigns.
(c) No Third Party Beneficiaries. Nothing in this Agreement
shall confer any rights or remedies under or by reason of this Agreement on any
persons other than the parties and their respective successors and permitted
assigns. Nothing in this Agreement shall relieve or discharge the obligation or
liability of any third party to any party, nor shall any provision give any
third party any right of subrogation or action over or against any party.
(d) Independent Contractors. The parties are independent
contractors and not partners, joint venturers, or otherwise affiliated, and
neither has any right or authority to bind the other in any way or to hold
itself out as having such right or authority.
(e) Employees and Contractors. Employees and contractors of
either party who perform services in connection with this Agreement shall be
bound by the confidentiality provisions of this Agreement. At the request of
either party, the other party will provide adequate evidence that such persons
are in fact employees or contractors of that other party and that they are
subject to the terms of this Agreement.
(f) Severability. If any provision of this Agreement or the
application of such provision to any party or circumstance is held invalid or
unenforceable, the remainder of this Agreement and the application of such
provision to persons or circumstances other than those to which it is held
invalid or unenforceable shall not be affected thereby. In addition, to the
greatest extent permitted by law, the invalid or unenforceable provision shall
be replaced with a valid and/or enforceable provision that as nearly as possible
effects the parties' intent.
(g) Additional Acts. Each party agrees to execute and deliver,
from time to time, such additional documents and instruments and to perform such
additional acts as may be necessary or appropriate to effectuate, carry out, and
perform all of the terms, provisions, and conditions of this Agreement and the
transactions contemplated hereby.
(h) Force Majeure. If any act of a government, act of
terrorism, war conditions, labor disputes, strikes, fire, flood, or other act of
God, or any other cause or condition beyond a party's control prevents any party
from performing in accordance with the provisions
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of this Agreement, such nonperformance shall not be considered a breach or
default so long as the conditions prevail.
(i) Assignment. Neither party may transfer, assign, convey,
sell, encumber, or in any way alienate ("Transfer") all or any part of its
rights or obligations under this Agreement except to an entity that is capable
of assuming and agrees in writing to assume all of the transferring party's
obligations under this Agreement. Transfers in violation of this paragraph (i)
or in violation of any other provision of this Agreement shall be void ab initio
and of no effect whatsoever.
(j) Notices. Any notice required or permitted to be given by
one party to another in connection with this Agreement shall be in writing and
shall be deemed given when made (except as otherwise provided herein) if
delivered personally, or sent by electronic mail, or sent by registered or
certified mail, postage prepaid, or by an internationally recognized overnight
courier with tracking capability, addressed as follows:
For: BioLife Solutions, Inc.
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Attn: ▇▇▇▇ ▇. ▇▇▇▇▇
Email Address: ▇▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇
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Tel. No. (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP
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Email Address: ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
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For: Cell Preservations Services, Inc.
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Attn: ▇▇▇▇ ▇. ▇▇▇▇▇
Email Address: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
----------------------------
Tel. No.:
With a copy to:
▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇, ▇▇▇▇▇ & Kattlel, LLP
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Email Address: ▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇
----------------
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
11
Any change of address shall be made by notice given pursuant to this paragraph.
(k) Amendment. This Agreement may not be modified or amended
except in a writing signed by both parties.
(l) Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
(m) Remedies. The remedies under this Agreement are cumulative
and shall not exclude any other remedies to which a person or entity may be
lawfully entitled.
(n) Governing Law. This Agreement shall be enforced, governed
by, and construed in accordance with the laws of the State of New York.
(o) Exhibits. All exhibits attached hereto and are hereby
incorporated into and made a part of this Agreement. To the extent there is
conflict between the terms of this Agreement and any exhibit, the terms of this
Agreement shall control.
(p) Complete Agreement. This Agreement constitutes the
complete and exclusive statement of agreement between the parties with respect
to the subject matter herein and replaces and supersedes all prior and
contemporaneous written and oral agreements, negotiations, discussions, and
statements by and between the parties.
BIOLIFE SOLUTIONS, INC. CELL PRESERVATIONS SERVICES, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------- -----------------------------
▇▇▇▇ ▇. ▇▇▇▇▇, President ▇▇▇▇ ▇. ▇▇▇▇▇, President
12
APPENDIX A
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Description of BioLife Technology:
----------------------------------
BioLife Solutions has pioneered the next generation of preservation
solutions designed to maintain the viability and health of human and mammalian
cellular matter and tissues during freezing, transportation and storage. Based
on the Company's proprietary bio-packaging technology and a patented under
standing of the mechanism of cellular damage and death, these products enable
the biotechnology and medical community to address a growing problem that exists
today. The expanding practice of cell and gene therapy has created a need for
products that ensure the biological viability of mammalian cell and tissue
material during transportation and storage. The HypoThermosol(R) and
CryoStor(TM) products that the Company markets today are a significant step
forward in meeting these needs.
The company's proprietary preservation solutions, consisting of
HypoThermosol(R), CryoStor(TM) and GelStor(TM), form a TECHNOLOGY PLATFORM for
BioLife.
BioLife's line of proprietary preservation solutions, based on the
company's patented HypoThermosol(R) technology, provides customers with a range
of generic and tissue-specific preservation solutions to improve clinical
outcomes by allowing cells to rapidly return to optimum functionality and to
more rapidly repopulate. HypoThermosol(R) also allows human and mammalian cells
and tissues to be preserved for longer periods, significantly expanding the
market for cell therapy and tissue engineering applications.
SCOPE OF CUSTOM PRODUCT DEVELOPMENT PROJECTS
Although the company's proprietary HypoThermosol(R) preservation media
enhances the viability of all mammalian cells at low temperatures, different
human and mammalian cell structures and tissue respond differently to cold and
thus the company has the opportunity to refine HypoThermosol(R) to address
specific applications of tissue engineering and specific cell varieties.
Research contracts based around BioLife's core HypoThermosol(R)
technology include work on optimizing preservation media for different human and
mammalian cellular and tissue applications and more fundamental research into
cell and tissue response to low temperature exposure and required preservation
as related to the HypoThermosol(R) technology.
PATENTS RELATED TO BIOLIFE'S TECHNOLOGY
Solutions for Tissue Preservation and Bloodless Surgery and Methods using same.
US Patent No: 5,405,742. Issued: Apr. 11, 1995.
Solutions for Tissue Preservation and Bloodless Surgery and Methods using same.
US Patent No: 5,514,536. Issued: May 7, 1996.
13
Inclusion of Apoptotic Regulators in Solutions for Cell Storage at Low
Temperatures. US Patent No. 6,045,990. Issued: April 4, 2000.
Normothermic and Hypothermic Maintenance and Preservation of Cells, Tissues, and
Organs in Gel-based Media. US Patent No: 6,632,666. Issued: October 10, 2003.
▇▇
▇▇▇▇▇▇▇▇ ▇
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Management/Administrative Services:
-----------------------------------
1. Clerical Functions
a. Create and maintain physical and electronic files for corporate
documents
b. Telecommunications (shared multi-line phone system)
c. Mail (USPS, FedEx)
d. Supplies (ordering and inventory)
e. Document Control
f. "Housekeeping"
g. Computer Back-up (server oversight)
h. Human Resources
i. Calendar and scheduling
j. Travel Arrangements
k. Patent Attorney interface
l. Support Administrative and Research Staff
m. Equipment Tracking
n. Powerpoint Presentations (copy and log)
o. Assist in maintenance of library
2. Accounting Functions
a. Assist in establishing and implementing the Company's accounting
procedures, policies and internal financial controls
b. Create monthly and quarterly financial statements for internal purposes
c. Create budgeting/forecasting and financial reporting packages for the
executive management
d. Oversee the Company's A/R and A/P functions
e. Oversee the Company's payroll and benefits programs
f. Assist with and oversee the annual financial audit and quarterly
reviews by the Company's auditors
g. General accounting for the Company's research grants program
3. Customer Service Functions
a. Schedule and coordinate scientific training workshops
b. Schedule and coordinate seminars and presentations at conferences
c. Web Master (Design and Updates)
d. Corporate shows and meeting preparations
e. Information Packets (Compiling and Sending)
15
APPENDIX C
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Allocation of Funds:
--------------------
Grant Title and Number: [list]
Award Date and Period: [list]
Award Amount Year
Direct Costs: $
Direct Costs Applicable to Equipment: $
Net Direct Costs: $
Indirect Costs: $
Fixed Fee: $
Fee to BioLife for Use of Facilities: $
------------------------------------
(40% of grant net direct costs - payable from indirect costs and fixed fee)
---------------------------------------------------------------------------
Fee to BioLife for Management Services: $
--------------------------------------
(22% of grant net direct costs - payable from indirect costs and fixed fee)
---------------------------------------------------------------------------
Payments to BioLife for:
------------------------
Solutions (As per grant budget - payable from net direct costs) $
BioLife Expenses (As per grant budget - payable from net direct costs) $
Consulting:
-----------
Percent Effort Allocation of
Name Role on Project Indirect Costs
--------- ---- -------------- --------------
[list]
16
APPENDIX C-1
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Allocation of Funds:
--------------------
Grant Title and Number: Hypothermic and Cryopreservation of Human Blood Vessels
Award Date and Duration: February 2004, 2 Years
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇
Direct Costs: $ 278,968 208,633
Direct Costs Applicable to Equipment: $ 75,660 0
Net Direct Costs: $ 203,308 208,633
Indirect Costs: $ 144,349 148,129
Fixed Fee: $ 20,000 20,000
Fee to BioLife for Use of Facilities: $ 81,323 83,453
------------------------------------
(40% of grant net direct costs - payable from indirect costs and fixed fee)
---------------------------------------------------------------------------
Fee to BioLife for Management Services: $ 44,727 45,899
--------------------------------------
(22% of grant net direct costs - payable from indirect costs and fixed fee)
---------------------------------------------------------------------------
Payments to BioLife for:
------------------------
Solutions (As per grant budget payable from net direct costs) $ 15,000 15,000
BioLife Expenses (As per grant budget payable from net direct costs) $ 10,000 10,000
Consulting:
-----------
Percent Effort Allocation of
Name Role on Project Indirect Cost
--------- ---- -------------- --------------
▇. ▇▇▇▇▇▇ Scientist 10% $5,000
▇.▇. ▇▇▇▇▇ Development 10% $10,000
17