SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported): December 21, 2001
CYTRX CORPORATION
(Exact Name of Registrant as Specified in Charter)
Delaware 000-15327 58-1642750
(State or Other Jurisdiction (Commission File Number) (IRS Employer
of Incorporation) Identification No.)
154 Technology Parkway
Suite 200
Norcross, Georgia 30092
(Address of Principal Executive Offices) (Zip Code)
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Registrant's telephone number, including area code: (770) 368-9500
Not applicable
(Former Name or Former Address, if Changed Since Last Report)
ITEM 5. OTHER EVENTS.
On December 7, 2001, CytRx entered into a license agreement (the "License
Agreement") with Vical Incorporated ("Vical") granting Vical exclusive,
worldwide rights to use or sublicense CytRx's TranzFect poloxamer technology to
enhance viral or non-viral delivery of polynucleotides (such as DNA and RNA) in
all preventive and therapeutic human and animal health applications, except for
(1) four infectious disease vaccine targets previously licensed by CytRx to
Merck & Co., Inc. and (2) DNA vaccines or therapeutics based on prostate-
specific membrane antigen (PSMA). In addition, the License Agreement permits
Vical to use TranzFect poloxamer technology to enhance the delivery of proteins
in prime-boost vaccine applications that involve the use of polynucleotides.
Under the License Agreement, CytRx received an up-front payment of $3,750,000
and has the potential to receive milestone and royalty payments in the future
based on criteria described in the License Agreement.
A copy of the License Agreement is filed as Exhibit 99 hereto.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(a) Financial Statements of Business Acquired.
Not applicable.
(b) Pro Forma Financial Information.
Not applicable.
(c) The following exhibits are filed as part of this Current Report on Form 8-K:
EXHIBIT NO. DESCRIPTION
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99 License Agreement between Vical Incorporated and CytRx
Corporation*
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* Confidential treatment has been requested with respect to certain portions of this agreement.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
CYTRX CORPORATION
By: /s/ Mark W. Reynolds
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Name: Mark W. Reynolds
-----------------------------------
Title: Vice President, Finance
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Dated: December 21, 2001
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EXHIBIT 99
CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL
PORTIONS OF THIS AGREEMENT HAVE BEEN REDACTED
AND FILED SEPARATELY WITH THE COMMISSION.
LICENSE AGREEMENT
between
VICAL INCORPORATED
and
CYTRX CORPORATION
LICENSE AGREEMENT
THIS AGREEMENT (this "Agreement") effective as of December 7, 2001, (the "Effective Date") between Vical Incorporated, a corporation organized and existing under the laws of Delaware ("Vical") and CytRx Corporation, a corporation organized and existing under the laws of Delaware ("CytRx") collectively referred to hereinafter as the Parties.
1.5 The term "CytRx Poloxamer Intellectual Property" shall mean (i) Patent
Rights; and (ii) CytRx Know-How.
1.6 The term "Field" shall mean the use of CytRx Poloxamer Intellectual
Property in polynucleotide-based therapeutics and prophylactics (including
DNA, RNA, viral, and all other biologically active natural and synthetic
polynucleotides such as antisense (including antisense polynucleotides
containing phosphothioester moieties) and CpG materials) alone or in
combination with a protein or peptide antigen as part of a prime / boost
regime, for all human and animal health applications, except for the
following:
a) those fields of use currently licensed to Merck, as described in the
Merck License,
b) DNA vaccines and / or therapeutics based on PSMA (as defined in
Section 1.17 hereof),
c) sale of a non-regulated product for use as a non-clinical research
reagent to increase transfection in vitro or in laboratory animals.
For the avoidance of any doubt, CytRx shall be free to license the CytRx
Poloxamer Intellectual Property in therapeutics and prophylactics
(including prime-boost regimes) that do not include polynucleotides.
1.7 The term "First Commercial Sale" shall mean, with respect to any Licensed
Product, the first sale for end use or consumption of such Licensed Product
in a country after all required approvals, including marketing and pricing
approvals, have been granted by the governing health authority of such
country.
1.8 The term "Improvement" shall mean any enhancement by CytRx in the synthesis
or manufacture of TranzFect.
1.9 The term "Licensed Product(s)" shall mean preparations in final form
(including all components used as part of a prime - boost regime) for sale
by prescription, over-the-counter or any other method, for use in the
Field, and which contain TranzFect.
1.10 The term "Major Pharmaceutical Markets" shall mean any of the United
States, Canada, France, Germany, Italy, Spain, the United Kingdom or Japan.
1.11 The term "Net Sales" shall mean the gross invoice price of Licensed Product
sold by Vical, its Affiliates or sublicensees (which term does not include
distributors) to the first independent third party after deducting, if not
previously deducted, in the amount invoiced or received:
(a) trade and quantity discounts;
(b) returns, rebates and allowances;
(c) chargebacks and other amounts paid on sale or dispensing of Licensed
Product;
(d) retroactive price reductions that are actually allowed or granted;
(e) sales commissions paid to distributors and/or selling agents but not
the actual sales force;
(f) a fixed amount equal to five percent (5%) of the gross invoice price
to cover bad debt, sales or excise taxes, transportation and insurance
charges and additional special transportation, custom duties, and
other governmental charges;
(g) standard inventory cost of devices or delivery systems other than
syringes used for dispensing or administering Licensed Product which
accompany Licensed Product as it is sold.
1.12 The term "Parties" shall mean CytRx, Vical, and all successors arising
from merger, consolidation, changes in control, reorganization, or
similar transaction.
1.13 The terms "Patent Rights" shall mean (i) all US and foreign patents and
patent applications owned by or licensed to CytRx during the term of
this Agreement which claim or cover polyoxypropylene/polyoxyethylene
copolymer compounds or compositions or preparations of such compounds
which may be added to a Substance to enhance the performance of such
Substance or the manufacture, purification, formulation and use of such
compounds and materials comprising such compounds; or (ii) divisions,
continuations, continuations-in-part, reissues, renewals, extensions,
supplementary protection certificates, utility models and the like of
any such patents and patent applications and foreign equivalents
thereof.
1.14 The term "Phase I Study", "Phase IIb Study", "Phase III Study", and
Biologics or Product License Application (also referred to as a PLA)
shall mean these terms as described in the laws and regulations of the
U.S. Food and Drug Administration of the Department of Health and Human
Services.
1.15 The term "PLA Approval" shall mean notification from a regulatory
authority in a country that all approvals for the marketing of Licensed
Product, including pricing approvals, have been granted.
1.16 The term "Proprietary Information" shall mean all Vical Know-How, CytRx
Know-How, and all other scientific, clinical, regulatory, marketing,
financial and commercial information or data, whether communicated in
writing or orally or by sensory detection, which is provided by one
party to the other party in connection with this Agreement.
1.17 The term "PSMA" shall mean any polypeptide derived from the
prostate-specific membrane antigen which is a type II integral membrane
glycoprotein that is highly expressed in prostate cancer.
1.18 The term "Substance" shall mean any polynucleotide-based therapeutic or
prophylactic alone or in combination with a protein antigen as part of
a prime / boost regime for use in the Field, wherein the Substance
includes TranzFect.
1.19 The term "TranzFect" shall mean any polyoxypropylene/polyoxyethelene
copolymer compound or compositions or preparations of such compounds
claimed in or covered by CytRx Poloxamer Intellectual Property and/or
CytRx Know-How which may be added to Substance to enhance performance
of such Substance relative to use of the Substance without TranzFect.
1.20 The term "Territory" shall mean all of the countries in the world.
1.21 The term "Valid Patent Claim" shall mean a claim of an issued and
unexpired patent included within the CytRx Poloxamer Intellectual
Property, which has not been revoked or held unenforceable or invalid
by a decision of a court or other governmental agency of competent
jurisdiction, unappealable or unappealed within the time allowed for
appeal, and which has not been disclaimed, denied or admitted to be
invalid or unenforceable through reissue or disclaimer or otherwise.
1.22 The term "Vical Know-How" shall mean any Vical information and
materials, including but not limited to, discoveries, improvements,
processes, formulas, data, inventions, know-how and trade secrets,
patentable or otherwise, which during the term of this Agreement are
not generally known.
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2.1 License Grant - CytRx Poloxamer Intellectual Property. CytRx hereby
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grants to Vical an exclusive license in the Territory with the right to
sublicense under CytRx Poloxamer Intellectual Property to research,
develop, make, have made, use, sell, offer to sell or import: (i)
TranzFect as it relates to use with Substance in the Field; and (ii)
Licensed Product(s).
2.2 [*****]
2.3 Exchange of Information
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a. Initial Data Transfer. Within 10 days of the Effective Date, (the
-------------------------
"Data Transfer Period") CytRx agrees to transfer to Vical the CytRx
Know-How listed in Addendum 3.0 hereof. During the 10 day Data Transfer
Period, Vical, but not CytRx, shall have the option to terminate this
Agreement at its sole discretion. If Vical exercises this option to
terminate, Vical agrees to return to CytRx all copies of CytRx Know-How
and destroy all documents containing any part thereof, and
notwithstanding other terms in this Agreement, Vical further agrees to
maintain CytRx Know-How in confidence and to treat such CytRx Know-How
as proprietary information as described in Section 3.1 hereof. CytRx
agrees that it will not enter into any third party discussions
pertaining to the license of TranzFect in the Field during the Data
Transfer Period.
b. Additional Data Transfer. During the term of this Agreement and so
----------------------------
long as Vical continues to have an obligation to pay royalties to
CytRx under this Agreement, CytRx shall promptly disclose to Vical in
English, and in writing on an ongoing basis all CytRx Know-How not
previously disclosed.
c. Reports. During the term of this Agreement, and upon written request
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from CytRx, but not more than once per Calendar Year, Vical agrees to
provide CytRx with a written report summarizing research and
development activities related to the use of TranzFect in the Field
over the previous Calendar Year.
d. Sublicense Agreements. Vical shall provide to CytRx a copy of all
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sublicense agreements pertaining to CytRx Intellectual Property within
30 days of execution, with the financial terms redacted.
2.4 Development and Commercialization Vical shall use reasonable efforts,
---------------------------------
at its own expense, to develop and commercialize a Licensed Product on
a commercially reasonable basis in such countries in the Territory
where in Vical's opinion it is commercially viable to do so.
2.5 Excused Performance. In addition to the provisions of Article VI
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hereof, the obligation of Vical with respect to any Licensed Product
under Section 2.4 are expressly conditioned upon the continuing absence
of any adverse condition or event relating to the safety or efficacy of
the Licensed Product, and the obligation
[*****] Confidential portions of this page have been redacted and filed
separately with the Commission.
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of Vical to develop or market any such Licensed Product shall be delayed or suspended so long as in Vical's opinion any such condition or event exists.
Upon completion of the Initial Data Transfer as described in Section
2.2, Three million seven hundred fifty thousand dollars cash
($3,750,000) with such payment to be made by wire transfer to the
following:
[*****]
[*****] Confidential portions of this page have been redacted and have filed
separately with the Commission.
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[*****] Confidential portions of this page have been redacted and filed separately with the Commission.
in accordance with the method of accounting normally employed by Vical in
computing cost of goods.
4.4.1 Royalties Payable By Vical.
--------------------------
(a) For Net Sales by Vical, its Affiliates or sublicensees of Licensed
Products which would, but for the license hereunder, infringe a
Valid Patent Claim, royalties based on the following annual Net
Sales aggregated separately for each Licensed Product:
(a) For that portion of annual Net Sales up to two hundred fifty
million dollars ($250,000,000) a royalty of [*****];
(b) For that portion of annual Net Sales exceeding two hundred
fifty million dollars ($250,000,000) but less than or equal
to five hundred million dollars ($500,000,000) a royalty of
[*****];
(c) For that portion of annual Net Sales exceeding five hundred
million dollars ($500,000,000) a royalty of [*****].
(b) For Net Sales of Licensed Products by Vical, its Affiliates or
sublicensees other than those covered in Subsection 4.4.1 (a) above,
a royalty calculated as set forth in Section 4.4.1 (a), but only for
a period of [*****] from First Commercial Sale of the respective
Licensed Product in each country of the Territory.
(c) Royalties on each Licensed Product at the rate set forth above shall
be effective as of the date of First Commercial Sale of a Licensed
Product in a country and shall continue until either the longer of
(i) the expiration of the last applicable patent on such Licensed
Product in such country in the case of sales under Subsection
4.4.1(a) above or (ii) until the [*****] anniversary of the First
Commercial Sale in such country in the case of sales of Licensed
Product under Subsection 4.4.1(b) above, subject to the following
conditions:
(x) that only one royalty shall be due with respect to the same unit
of Licensed Product;
(y) that no royalties shall be due upon the sale or other transfer
among Vical, its Affiliates or sublicensees, but in such cases
the royalty shall be due and calculated upon Vical's or its
Affiliate's or its sublicensee's Net Sales to the first
independent third party; and
(z) no royalties shall accrue on the disposition of Licensed Product
in reasonable quantities by Vical, its Affiliates or sublicenses
as samples (promotion or otherwise) or as donations (for
example, to non-profit institutions or government agencies for a
non-commercial purpose).
4.4.2 Royalty Payable Under Managed Pharmaceutical Contract. It is understood
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by the Parties that Vical may sell Licensed Product(s) to an independent
third party (such as a retailer or wholesaler) and may subsequently
perform services relating to Licensed Product(s) and other products under
a managed pharmaceutical benefits contract or other similar contract. In
such cases, it is agreed by the Parties that Net Sales shall be based on
the invoice price to an independent retailer or wholesaler, provided that
such invoice price represents a fair market price for such Licensed
Products, notwithstanding that Vical may receive compensation arising
from the performance of such services.
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4.4.3 Change in Sales Practices. The Parties acknowledge that during the term
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of this Agreement, Vical's sales practices for the marketing and
distribution of Licensed Product may change to the extent to which the
calculation of the payment for royalties on Net Sales may become
impractical or even impossible. In such event the Parties agree to meet
and discuss in good faith new ways of compensating CytRx to the extent
currently contemplated under Section 4.1
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Substance rather than Licensed Product in packaged form to an independent
third party, the royalty obligations of this Article IV shall be
applicable to the bulk Substance, provided that such independent third
party does not, directly or indirectly, sell such bulk Substance back to
Vical.
4.4.5 Royalty Reduction. [*****]
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4.4.6 Reports; Payment of Royalty. During the term of the Agreement following
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the First Commercial Sale of a Licensed Product, Vical shall furnish to
CytRx a quarterly written report for the Calendar Quarter showing the
sales of all Licensed Products subject to royalty payments sold by Vical,
its Affiliates and its sublicensees in the Territory during the reporting
period and the royalties payable under this Agreement. Reports shall be
due on the sixtieth (60th) day following the close of each Calendar
Quarter. Royalties shown to have accrued by each royalty report shall be
due and payable on the date such royalty report is due. Vical shall keep
complete and accurate records in sufficient detail to enable the
royalties payable hereunder to be determined.
4.5 Audits.
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(a) Upon the written request of CytRx and not more than once in each
Calendar Year, Vical shall permit an independent certified public
accounting firm of nationally recognized standing selected by CytRx
and reasonably acceptable to Vical, at CytRx's expense, to have
access during normal business hours to such of the records of Vical
as may be reasonably necessary to verify the accuracy of the
royalty reports hereunder for any year ending not more than
twenty-four (24) months prior to the date of such request. The
accounting firm shall disclose to CytRx only whether the royalty
reports are correct or incorrect and the specific details
concerning any discrepancies. No other information shall be
provided to CytRx.
(b) If such accounting firm correctly concludes that additional
royalties were owed during such period, Vical shall pay the
additional royalties within thirty (30) days of the date CytRx
delivers to Vical such accounting firm's
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written report so correctly concluding. The fees charged by such
accounting firm shall be paid by CytRx. In the event the additional
royalties owed by Vical for the period audited exceed [*****]
of royalties due for said period and are at least one million
dollars (U.S. $ 1,000,000) Vical will reimburse CytRx for the
reasonable fees charged by the accounting firm.
(c) Vical shall include in each sublicense granted by it pursuant to this
Agreement a provision requiring the sublicensee to make reports to
Vical, to keep and maintain records of sales made pursuant to such
sublicense and to grant access to such records by CytRx's independent
accountant to the same extent required of Vical under this Agreement.
Upon the expiration of twenty-four (24) months following the end of
any Calendar Year, the calculation of royalties payable with respect
to such year shall be binding and conclusive upon CytRx, and Vical and
its sublicensees shall be released from any liability or
accountability with respect to royalties for such Calendar Year.
(d) CytRx shall treat all financial information subject to review under
this Section 4.5 or under any sublicense agreement in accordance with
the confidentiality provisions of this Agreement, and shall cause its
accounting firm to enter into an acceptable confidentiality agreement
with Vical obligating it to retain all such financial information in
confidence pursuant to such confidentiality agreement.
[*****] Confidential portions of this page have been redacted and filed
separately with the Commission.
(c) it has not previously assigned, transferred, conveyed or otherwise encumbered its right, title and interest in CytRx Poloxamer Intellectual Property in the Field;
(d) to the best of CytRx's knowledge, it is the sole and exclusive owner or licensee of CytRx Poloxamer Intellectual Property in the Field, all of which is free and clear of any liens, charges and encumbrances, and no other person, corporate or other private entity, or governmental entity or subdivision thereof, has or shall have any claim of ownership with respect to the CytRx Poloxamer Intellectual Property in the Field, whatsoever;
(e) to the best of CytRx's knowledge, the licensed CytRx Poloxamer Intellectual Property and the research, development, manufacture, use, sale and/or import of TranzFect, do not interfere with or infringe any intellectual property rights owned or possessed by any third party;
(f) there are no claims, judgments or settlements against or owed by CytRx or pending or threatened claims or litigation relating to the CytRx Poloxamer Intellectual Property; and
(g) CytRx has disclosed to Vical all reasonably relevant information regarding the CytRx Poloxamer Intellectual Property licensed under this Agreement, including all patent opinions obtained by CytRx related thereto.
(a) CytRx shall give Vical notice of either (i) any infringement of Patent Rights, or (ii) any misappropriation or misuse of CytRx Know-How, that may come to CytRx's attention. Vical and CytRx shall thereafter consult and cooperate fully to determine a course of action, including but not limited to the commencement of legal action by either or any combination of Vical, Merck, and CytRx, to terminate any infringement of Patent Rights or any misappropriation or misuse of CytRx Know-How. However, CytRx, and / or Merck upon notice by CytRx to Vical, shall have the first right to initiate and prosecute such legal action at CytRx's and / or Merck's own expense and in the name of CytRx and, if necessary, Merck and / or Vical, or to control the
defense of any declaratory judgment action relating to Patent Rights or CytRx Know-How. CytRx shall promptly inform Vical if both CytRx and Merck elect not to exercise such first right and Vical shall thereafter have the right to either initiate and prosecute such action or to control the defense of such declaratory judgment action in the name of Vical and, if necessary, CytRx.
(b) In the event that both CytRx and Merck elect not to initiate and prosecute an action as provided in paragraph (a), and Vical elects to do so, the costs of any course of action to terminate infringement of Patent Rights or misappropriation or misuse of CytRx Know-How, including the costs of any legal action commenced or the defense of any declaratory judgment, shall be shared equally by CytRx and Vical.
(c) For any action to terminate any infringement of Patent Rights or any misappropriation or misuse of CytRx Know-How, in the event that Vical is unable to initiate or prosecute such action solely in its own name, CytRx will join such action voluntarily and will execute and cause its Affiliates to execute all documents necessary for Vical to initiate litigation to prosecute and maintain such action. In connection with any action, Vical and CytRx will cooperate fully and will provide each other with any information or assistance that either may reasonably request. Each party shall keep the other informed of developments in any action or proceeding, including, to the extent permissible by law, the status of any settlement negotiations and the terms of any offer related thereto.
(d) Any recovery obtained by either or any combination of Vical, Merck,
and CytRx in connection with or as a result of any action contemplated
by this section, whether by settlement or otherwise, shall be shared
in order as follows:
i) the party which initiated and prosecuted the action shall recoup
all of its costs and expenses incurred in connection with the
action;
ii) the other party or parties shall then, to the extent possible, recover its costs and expenses incurred in connection with the action; and the amount of any recovery remaining shall then be allocated between the parties on a pro rata basis under which CytRx shall receive a proportion based on the royalties it lost and Vical and to the extent applicable Merck shall receive any remaining amounts.
(e) CytRx shall immediately give notice to Vical of any certification
regarding any Patent Rights it has received pursuant to the United
States "Drug Price Competition and Patent Term Restoration Act of
1984" under either 21 U.S.C. ss.ss.355(b)(2)(A)(iv) or
(j)(2)(A)(vii)(IV) or equivalent foreign provision and shall provide
Vical with a copy of such certification within (5) days of receipt.
CytRx's and Vical's rights with respect to the initiation and
prosecution of any legal action as a result of such certification or
any recovery obtained as a result of such legal action shall be
defined in paragraphs (a)-(d) hereof, provided, however, if both CytRx
and Merck decide not to bring infringement proceedings against the
entity making such a certification, CytRx shall give notice to Vical
of such decision not to bring suit within thirty (30) days after
receipt of notice of such certification. Vical may then, but is not
required to, bring suit against the party that filed the
certification. Any such suit by Vical, Merck, or CytRx shall either be
in the name of Vical, in the name of Merck, or in the name of CytRx,
or jointly by any combination of Vical, Merck and
CytRx. For this purpose, the party not bringing suit shall execute such legal papers necessary for the prosecution of such suit as may be reasonably requested by the party bringing suit.
6.8 [*****]
[*****] Confidential portions of this page have been redacted and filed separately with the Commission.
Vical's licenses pursuant to Article II shall become fully paid-up,
perpetual licenses and CytRx's obligation to provide Improvements
shall cease.
7.2 Termination by Vical. Notwithstanding anything contained herein to the
--------------------
contrary, Vical shall have the right to terminate this Agreement at
any time in its sole discretion by giving ninety (90) days advance
written notice to CytRx unless terminated pursuant to Section 2.2. In
the event of such termination under this Section 7.2, the rights and
obligations hereunder, including any licenses and any payment
obligations not due and owing as of the termination date shall
terminate.
7.3 Termination.
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7.3.1 Termination for Cause. This Agreement may be terminated by notice by
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either party at any time during the term of this Agreement:
(a) if the other party is in breach of its material obligations hereunder
by causes and reasons within its control and has not cured such breach
within ninety (90) days after notice requesting cure of the breach
provided, however, in the event of a good faith dispute with respect
to the existence of a material breach, the ninety (90) day cure period
shall be tolled until such time as the dispute is resolved pursuant to
Section 8.6 hereof; or
(b) upon the filing or institution of bankruptcy, reorganization,
liquidation, or receivership proceedings, or upon a general assignment
of a substantial portion of all of its assets for the benefit of
creditors, by the other party; provided, however, in the case of any
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involuntary bankruptcy proceeding such right to terminate shall only
become effective if the party consents to the involuntary bankruptcy
or such proceeding is not dismissed within ninety (90) days after the
filing thereof.
7.3.2 Effect of Termination for Cause on License.
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(a) In the event that Vical terminates this Agreement under Section
7.3.1(a), CytRx's obligation to provide Improvements shall cease
and Vical's license pursuant to Section 2.1 shall become paid-up,
perpetual license, except that Vical shall make [*****] of the
royalty payments set forth in Section 4.4 in such event. In the
event that CytRx terminates this Agreement under Section
7.3.1(a), or Vical terminates this Agreement under Section 7.2,
Vical's licenses pursuant to Section 2.1 shall terminate as of
such termination date.
(b) In the event this Agreement is terminated due to the rejection of
this Agreement by or on behalf of CytRx under Section 365 of the
United States Bankruptcy Code (the "Code"), all licenses and
rights to licenses granted under or pursuant to this Agreement by
CytRx to Vical are, and shall otherwise be deemed to be, for
purposes of Section 365(n) of the Code, licenses of rights to
"intellectual property" as defined under Section 101(35A) of the
Code. In such a case, the rights of the parties shall be
determined by the Code.
7.4 Effect of Termination. Expiration or termination of the Agreement
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shall not relieve the Parties of any obligation accruing prior to such
expiration or termination, and the provisions of Article III shall
survive the expiration of the Agreement and shall continue in effect
for five (5) years. Any expiration or early termination of this
Agreement shall be without prejudice to the rights of either party
against the other accrued or accruing under this Agreement prior to
termination, including the obligation to pay royalties for Licensed
Product(s) or Substance(s) sold prior to such termination.
Notwithstanding the foregoing, any remedies set forth under this
Article VII shall not limit any claim for damages
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either party may have against the other arising from material breach of the other party.
if to CytRx, to: CytRx Corporation
154 Technology Parkway
Technology Park/Atlanta
Norcross, GA 30092
Attention:
President & CEO
Telecopier No. (770) 448-3357
if to Vical, to: Vical Incorporated
9373 Towne Centre Drive
16
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Suite 100
San Diego, CA 92121-3088
Attention:
President & CEO
Telecopier No. (858) 646-1150
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or to such other address as the party to whom notice is to be given may have furnished to the other party in writing in accordance herewith. Any such communication shall be deemed to have been given when delivered if personally delivered or sent by telecopier on a business day, on the business day after dispatch if sent by nationally-recognized overnight courier and on the third business day following the date of mailing if sent by mail.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first set forth above.
Vical Incorporated CytRx Corporation
BY: /s/ Vijay B. Samant BY: /s/ Jack Luchese
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Vijay B. Samant Jack Luchese
TITLE: President and CEO TITLE: President and CEO
DATE: December 6, 2001 DATE: December 6, 2001
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[*****]
[*****] Confidential portions of this page have been redacted and filed separately with the Commission.