ATL: Cognate Service Agreement Questions.
At the risk of "coming out" (as a lawyer) I reviewed the Cognate Service Agreement ("SA") linked to your post.
Background: The SA refers to a prior "Conversion and Lock-Up Agreement" between Cognate and NWBO, the expansion of services beyond those anticipated in that Lock-Up, and the resultant perceived need to extend the scope of that Lock-Up. The SA is part of a multiple-contract replacement to the Lock-Up, other contracts specifically referenced being (1) an Ancillary Services Agreement directed at shipping, distribution, cryopreservation and storages services, (2) a Manufacturing Expansion Services Agreement, directed at oversight, and management and support of third party manufacturing outside of the U.S., and (3) a Quality Agreement to establish manufacturing and processing quality standards in compliance with applicable U.S. or foreign legal requirements.
Q1: You are correct that the SA will not expire until "five (5) years after the first commercial sales of DCVax?-L Products...". "(C)ommercial sales do not include "compassionate use [or] hospital [use] exemption." The only exception is that the SA may be "terminated earlier" in the event of an "uncured" "material breach" of the SA. Likely the parties expect that during that five year period they will have enough transactional experience to extend the relationship.
Q2: You are correct that all terms and conditions of the SA are binding on a successor including Charles River Laboratories. Further, NWBO had the right under the SA to block the transfer of the SA from Cognate to CRL under the Successors and Assigns provision of the SA. From the fact of the sale and related public announcements it is a fact that NWBO did not exercise its right to prevent the sale of Cognate's SA obligations to new ownership.
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