Exhibit 10.2
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 Yale University, a corporation organized
and existing under and by virtue of a charter granted by the
general assembly of the Colony and State of Connecticut
(“Licensor”), Schering Aktiengesellschaft, a German
corporation (“Transferor”), and Cardium
Therapeutics, Inc., a Delaware Corporation
(“Transferee”), each a Party, collectively Parties
hereto, in each case including its respective corporate affiliates,
successors and assigns.
RECITALS
Whereas, Licensor and Transferor
previously entered into a license agreement related to an invention
entitled “eNOS Mutations Useful for Gene Therapy and
Therapeutic Screening”, effective as of 9 August, 2000, and
including any subsequent amendments thereto (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 . 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
