Exhibit 10.1
Transfer, Consent to
Transfer,
Amendment and Assumption
of License Agreement
This Transfer, Consent to Transfer,
Amendment and Assumption of License Agreement
(“Transfer & Assumption Agreement”), effective
as of August 31, 2005 (the “Effective Date”), is
entered into by and among New York University, a corporation
organized and existing under the laws of the State of New York
(“Licensor”), Collateral Therapeutics, Inc., a
Delaware corporation (“Transferor”), and Cardium
Therapeutics, Inc., a Delaware Corporation
(“Transferee”), each a Party, collectively Parties
hereto.
RECITALS
Whereas, Licensor and Transferor
previously entered into a license agreement with respect to certain
technology related to Fibroblast Growth Factor 4 (FGF-4)
effective as of March 24, 1997, and including any subsequent
amendments thereto (referred to herein as the “License
Agreement”);
Whereas, Transferor and its
affiliates have elected to pursue product development efforts and
product candidates other than those related to the License
Agreement;
Whereas, Transferee is interested in
pursuing certain research and development in the cardiovascular
field and, for this purpose and pending receipt of necessary
funding as described below, wishes to acquire the rights of
Transferor under the License Agreement, and is willing to accept
the corresponding obligations, thereby completely assuming both the
rights and the obligations of Transferor with respect to the
License Agreement; and
Whereas, the Parties jointly agree
to transfer the entirety of Transferor’s rights and
obligations under the License Agreement to Transferee, amending the
License Agreement to reflect such transfer;
AGREEMENT
Now, therefore, in consideration of
the promises and covenants contained herein, and other good and
valuable consideration, the receipt of which is hereby
acknowledged, and intending to be legally bound, the Parties agree
as follows:
1.
Qualified Financing as Condition Precedent to Transfer of Rights
and Assumption of Obligations; Termination of License Agreement in
the Event of Non-Occurrence of Transfer and Assumption .
The transfer of rights and assumption of obligations under the
License Agreement as contemplated hereby (and the amendments as
provided below), shall be conditioned upon, and shall occur upon
the date of, the closing of a qualified financing pursuant to which
Transferee has received funding of at least Twenty Million U.S.
Dollars or its substantial equivalent (a “Qualified
Financing”). The date of closing of the Qualified
Financing and coincident transfer of rights and obligations under
this Transfer & Assumption Agreement shall be referred to
herein as the “Transfer Date”. The occurrence of
the transfer of rights and obligations in connection with the
Qualified Financing shall be confirmed to Licensor by completion
and delivery by fax or mail of a “Confirmation of Transfer
and Assumption of Rights” substantially in the form as
attached hereto as Appendix A but which has been executed by
Transferor and Transferee on or promptly following the Transfer
Date. Since, in the absence of the proposed Transfer and
Assumption, Transferor would otherwise have provided or
provide
