MATERIAL TRANSFER
AGREEMENT
This Material Transfer Agreement (the "Agreement") effective as of
March 24, 2008 (the "Effective Date") is made by and between
America Stem Cell, Inc., a California corporation located at 135
Chinquapin Avenue, Carlsbad, CA 92008 ("ASC" or "Recipient"), and
Dara BioSciences, Inc. located at 8601 Six Forks Road, Suite 160,
Raleigh, NC 27615 ("Dara BioSciences, Inc."). ASC and Dara
BioSciences, Inc. are referred to herein as a "Party" and
collectively as the "Parties."
1.
Materials .
(a) Dara BioSciences,
Inc. is willing to transfer to Recipient the materials specified on
Appendix A hereto ("Materials"), for the sole purpose of
conducting preclinical efficacy research to establish the efficacy
of Dara BioSciences, Inc.'s compounds for ex-vivo treatment of cord
blood derived stem cells relative to promoting their
homing/engraftment (the "Purpose").
(b) The Materials and
their use, including but not limited to cell homing and
engraftment, are proprietary to Dara BioSciences, Inc., and
Recipient acknowledges that the Materials and their use shall
remain the sole and exclusive property of Dara BioSciences, Inc.
Recipient shall retain control of Materials and shall not sell,
transfer, disclose, distribute or otherwise release Materials or
any progeny, derivative or part thereof, to any third party other
than as permitted herein.
2. Research
Program . Recipient may use the Materials to conduct
preclinical efficacy research to establish the efficacy of Dara
BioSciences, Inc.' compounds identified on Appendix A for ex-vivo
treatment of cord blood derived stem cells relative to promoting
their homing/engraftment as specified in greater detail in Appendix
B (the "Research Program").
3. Limitation
of Use . The Materials will be used by ASC only for the
Purpose. The Materials shall not be used by ASC for commercial
purposes or in human subjects.
4.
Reports . Recipient will furnish and provide Dara
BioSciences, Inc. with a written summary of the experiments
conducted by Recipient during the Research Program within thirty
(30) days of the conclusion of the Research Program or the
expiration of the Term, whichever is sooner (hereinafter, the
results of the Research Program and any experiments and analysis
thereof conducted by Recipient shall be referred to collectively as
the "Results"). The documented Results shall be sent to John
Didsbury, CSO, Dara BioSciences, Inc.
5.
Confidential Information . The Parties agree that, during
the Term and following the expiration of this Agreement as
hereinafter provided for, they shall not use, except as needed for
the purposes of this Agreement or expressly permitted under this
Agreement or disclose to any third party, any Confidential
Information of the other Party without the prior written consent of
the Party providing the Confidential Information. For purposes of
this Agreement, "Confidential Information" means all information,
in whatever format or medium delivered, reagents, tangible
materials, procedures, data, results, conclusions, know-how,
experience, trade secrets, or other proprietary information
disclosed or provided by either of the Parties (the "Disclosing
Party") to the other (the "Receiving Party") in connection with
this Agreement, including without limitation the Research Program
that pertains to the Materials. For purposes of this section, the
Results shall be considered the Confidential Information of Dara
BioSciences, Inc., with ASC being treated as the Receiving Party.
The Receiving Party shall have no obligations with respect to any
portion of Confidential Information that the Receiving Party can
establish:
(a) is or later
becomes available to the public by use, publication or the like,
through no fault of the Receiving Party; or
(b) is obtained from a
third party who was not bound by a duty of confidentiality and had
the legal right to disclose the same to the Receiving Party; or
(c) is already in the
possession of the Receiving Party, predating generation of the
Confidential Information under this Agreement or receipt of
Confidential Information from the Disclosing Party, as evidenced by
reasonable written documentation in existence prior to the date
hereof; or
(d) is independently
developed by the Receiving Party without making use of Confidential
Information from the Disclosing Party, as evidenced by reasonable
written documentation in existence at the time of development.
6. Permitted
Disclosures . Notwithstanding the obligations in
Section 5:
(a) The Receiving
Party may disclose Confidential Information of the Disclosing Party
to its employees and agents, but only to the extent required to
accomplish the purposes of this Agreement and only if such
employees and agents to whom disclosure is to be made are bound by
the duties of confidentiality substantially similar to, but in any
event not less stringent than, those herein contained or who agree
in writing to hold in confidence and not make use of such
Confidential Information for any purpose other than as permitted by
this Agreement on terms at least equivalent in scope to those set
forth in this Agreement; and
(b) &n
