1 EXHIBIT 10.38
CONFIDENTIAL TREATMENT REQUESTED UNDER 17 C.F.R. SECTIONS 200.80(B)(4), 200.83
AND 240.24B-2. "***" INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A
CONFIDENTIAL TREATMENT REQUEST THAT HAS BEEN FILED SEPARATELY WITH THE SECRETARY
OF THE COMMISSION.
AMCS DEVELOPMENT AGREEMENT
BETWEEN
XXXXXX-XXXXXXX COMPANY
AND
AURORA BIOSCIENCES CORPORATION
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AMCS DEVELOPMENT AGREEMENT
THIS AGREEMENT is entered into as of the Effective Date (as defined below) by
and between XXXXXX-XXXXXXX COMPANY, a Delaware corporation, having offices at
0000 Xxxxxxxx Xxxx Xxx Xxxxx, Xxxxxxxx, 00000 ("PD"), and AURORA BIOSCIENCES
CORPORATION, a Delaware corporation having offices at 00000 Xxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxxxx 00000 ("Aurora").
RECITALS
WHEREAS, Aurora has expertise in the design and development of automated
systems for the storage of chemical and biological compounds; and
WHEREAS, PD desires to acquire and Aurora desires to develop and supply PD
with an automated system for the storage and retrieval of chemical and
biological compounds.
NOW, THEREFORE, in consideration of the foregoing premises and of the
covenants, representations and agreements set forth below, the parties agree
as follows:
1. DEFINITIONS
As used herein, the following terms shall have the following meanings:
"Affiliate" means any corporation, association or other entity which directly
or indirectly controls, is controlled by or is under common control with the
party in question. As used herein, the term control shall mean direct or
indirect beneficial ownership of more than 50% of the voting or income
interest in such corporation or other business entity.
"Agreement" means this agreement, together with all appendices, exhibits and
schedules hereto, and as the same may be amended or supplemented from time to
time hereafter by a written agreement duly executed by authorized
representatives of each party hereto.
"Approved Engineering Change Order" shall have the meaning set forth in
Section 2.9 hereof.
"Aurora Copyrights" means all ***.
"Aurora Patent Rights" means ***.
"Aurora System Technology" means all ***.
"Confidential Information" means all confidential information, data, and
materials received by either party from the other party pursuant to this
Agreement which if in writing is marked confidential, and all information,
data and materials, developed pursuant to this Agreement, including, without
limitation, Technology of each party, subject to the exceptions set forth in
Section 6.2.
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"Control" or "Controlled" means possession by a party of the ability to grant
a license or sublicense in accordance with the terms of this Agreement, and
without violating the terms of any agreement by such party with any Third
Party.
"Copyrights" means copyrights throughout the world which a party hereto owns
or Controls, individually or jointly, any title thereto or rights thereunder.
"CPI" shall have the meaning set forth in Section 3.2 hereof.
"Effective Date" means the date that this Agreement is executed by the last
party to so execute.
"Engineering Change Order" has the meaning set forth in Section 2.9 hereof.
"First Milestone" has the meaning set forth in Section 2.8.2 hereof.
"Invention" means any new and useful process, machine, method, technique or
composition of matter, or improvement thereto, whether or not patentable.
"Initial Support Period" shall have the meaning set forth in Section 3.1
hereof.
"Know-How" means information and data which is not generally known to the
public, comprising: Inventions, designs, concepts, algorithms, formulae,
software, techniques, practices, processes, methods, knowledge, skill,
experience, expertise and technical information.
"Patent Rights" means all U.S. or foreign (including regional authorities
such as the European Patent Office) regular or provisional patent
applications, including any continuation, continuation-in-part, or division
thereof or any substitute application therefor or equivalent thereof, and any
patent issuing thereon, including any reissue, reexamination or extension
thereof and any confirmation patent or registration patent or patent of
additions based on any such patent, containing one or more claims to an
Invention, and which a party hereto owns or Controls, individually or jointly,
any title thereto or rights thereunder.
"Person" shall mean an individual, corporation, partnership, limited
liability company, trust, business trust, association, joint stock company,
joint venture, pool, syndicate, sole proprietorship, unincorporated
organization, governmental authority or any other form of entity not
specifically listed herein.
***
"Service and Support" shall have the meaning set forth in Section 3.1 hereof.
***.
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"***.
"System Steering Committee" shall have the meaning set forth in Section 2.2
hereof.
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***
"Technology" means Know-How, Copyrights and Patent Rights.
"Term" means the period beginning on the Effective Date and terminating in
accordance with Section 11 hereof.
"Third Party" means any Person other than Aurora or PD.
***
"Validation" has the meaning set forth in Section 2.7 hereof.
2. SYSTEM DEVELOPMENT, ACCEPTANCE AND DELIVERY
2.1. System Development.
On the Effective Date, Aurora will initiate the design, development and
plans for supply and installation of the System by the System Target
Acceptance Date. Both parties will act within the presently estimated
time periods and in accordance with the terms hereof and in accordance
with U.S. laws, rules and regulations applicable to the design,
development, manufacture, supply, and installation of instrumentation.
***.
2.2. System Steering Committee.
Aurora and PD shall establish a committee (the "System Steering
Committee") to oversee the development of the System and formally
review, the status of such development, including project timelines, the
System Specifications, coordination of the review of the ***. For the
first ***following the Effective Date, the System Steering Committee
shall meet on a monthly basis, and on a quarterly basis thereafter, at
mutually agreed upon times and locations using mutually agreed upon
meeting formats, including tele- and video-conferencing. On an
alternating basis, one party shall promptly prepare and deliver to the
members of the System Steering Committee minutes in respect thereof, for
review and approval by both parties. The System Steering Committee will
be established not later than ***after the Effective Date. The System
Steering Committee will consist of ***representatives designated by PD
and ***representatives designated by Aurora. Each representative will
have one ***
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***. Either party may, upon reasonable written notice, require up to
two(2) special meetings of the System Steering Committee per year, at
mutually agreed upon times and locations using mutually agreed upon
meeting formats, including tele- and video-conferencing; provided,
however, that such meeting shall occur within ***of written notice of
such meeting.
2.3. Audits.
From time to time during the term of this Agreement, PD representatives
shall have the right, upon reasonable advance written notice to Aurora,
to visit the facilities where the System is being developed to verify
the information in the progress reports submitted to the System Steering
Committee and to confirm Aurora's compliance with the terms hereof.
2.4. Shipment, and Installation.
***
2.5. Aurora Employees.
All Aurora employees or independent contractors will be informed by PD
of PD's security and work rules and will be required to comply with such
security and work rules. Aurora will be responsible for its employees or
contractors performing such installation, including salaries, benefits
and workers compensation. Such personnel shall be and remain employees or
independent contractors of Aurora and Aurora shall require all such
employees to adhere to all PD work policies and procedures while on PD
premises and shall indemnify and hold PD harmless from and against any
and all liability, costs, damages and expenses arising out of claims by
such employees or independent contractors of Aurora relating to the
presence of such employees or independent contractors on PD's premises;
provided, however, that Aurora shall not indemnify and hold harmless PD
or any such claim arising from PD's negligence or willful or reckless
misconduct.
2.6. Employment Relationship.
All persons assigned by Aurora to perform work on its behalf are and
shall remain its employees or independent contractors and Aurora shall
be solely responsible for complying with all United States federal,
state and municipal laws, rules and regulations, including, without
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limitation, reporting and payment of the entire compensation (including
all fringe benefits) of each person, withholding of federal income taxes,
state income taxes, FICA and FUTA taxes and other payroll deductions, and
all premiums or payments made for workmen's compensation coverage, made
for or on behalf of Aurora employees or independent contractors. Aurora
acknowledges that none of its employees are employees of PD and that no
such employees are eligible to participate in any employee benefit plans
of PD. Aurora further acknowledges that no such individuals are
eligible to participate in any such benefit plans even if it is later
determined that any of its employees' status during the period of this
Agreement was that of an employee of PD. In addition, Aurora waives
any claims that it may have under the terms of any such benefit plans
or under any law for participation in or benefits under any of PD's
benefit plans.
2.7. ***.
***
2.8. Payments Relating to Development of the System.
PD will make the following payments to Aurora in consideration of the
development, delivery and Validation of the System:
***
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***
***
***
***
3. SERVICE AND SUPPORT
3.1. Initial Service Period.
*** (the "Initial Support Period"), Aurora will provide service and
support for the System, ***. The service and support is more fully
described on Exhibit 3 attached hereto ("Service and Support***. Aurora
will designate an appropriate Aurora employee to act as its primary
contact with PD to coordinate such Service and Support and Aurora shall
notify PD of the identity of such Person.
3.2. Future Service and Support.
***. This purchased annual Service and Support will be available to PD
until ***, after which period PD and Aurora may at their discretion
negotiate in good faith for further Service and Support. Following the
Initial Support Period, Aurora and PD may also, at their discretion,
negotiate in good faith the terms and conditions for alternative service
and support to be provided by Aurora, including more limited service and
support for System components or software.
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4. INTELLECTUAL PROPERTY RIGHTS
4.1. Grant of Rights from Aurora to PD.
***
4.2. Ownership of Intellectual Property and Property
4.2.1. No Implied License. Except as otherwise expressly provided
in this Agreement, nothing in this Agreement is intended to convey
or transfer ownership by one party to the other of any rights, title
or interest in any Confidential Information, Technology, Copyrights
or Patent Rights owned or Controlled by a party. Except as
expressly provided for in this Agreement, nothing in this Agreement
shall be construed as a license or sublicense by one party to the
other of any rights in any Technology, Copyrights, or Patent Rights
owned or Controlled by a party.
4.2.2. Inventions By PD. ***
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***
4.2.3. Inventions By Aurora. Aurora shall own such Inventions and
other Technology made solely by its employees and agents, and all
patent applications and patents claiming such Inventions and other
Technology.
4.2.4. ***
4.2.5. No Implied License. The parties recognize and agree, that
in some instances the practice of Technology conceived or made
jointly by employees or agents of PD and employees or agents of
Aurora and owned jointly pursuant to Section 4.2.4 may require
additional license(s) under Aurora System Technology, Aurora's
Copyrights and Aurora's Patent Rights.
4.2.6. Inventorship. PD and Aurora agree, for the purpose of this
Section 4, inventorship of patentable Inventions shall be determined
in accordance with U.S. patent law.
5. INTELLECTUAL PROPERTY ENFORCEMENT AND DEFENSE OF INFRINGEMENT CLAIMS
5.1. Intellectual Property Enforcement.
PD and Aurora shall *** bring proceedings against any Third Party for
the inappropriate use, including patent infringement, of Technology or
Patent Rights ***Controlled by it, and ***party shall be entitled to
retain any and all awards or damages obtained in any such proceeding.
At the request and expense ***shall give ***all reasonable assistance
required to file and conduct any such proceeding. For jointly owned
Technology or Patent Rights, PD and Aurora shall use their best efforts
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to coordinate pursuing a commercially reasonable action to address
inappropriate use, including patent infringement, by Third Parties of
such Technology and Patent Rights and to determine how expenses and any
recovery from such action shall be allocated between the parties.
***
5.2. Defense of Infringement Claims Pertaining to Aurora Technology
and Aurora Patent Rights.
PD will cooperate with Aurora, at Aurora's expense, in the defense of
any suit, action or proceeding against Aurora alleging the
infringement of the intellectual property rights of a Third Party by
reason of Aurora's use of any Aurora Patent Rights and Aurora System
Technology licensed to PD under this Agreement. ***.
6. TREATMENT OF CONFIDENTIAL INFORMATION; PUBLICITY
6.1. Confidentiality Obligation.
Subject to the terms and conditions of this Agreement, PD and Aurora each
agree that, during the term of this Agreement and for ***thereafter, it
will keep confidential all Confidential Information (including, without
limitation, not to disclose such Confidential Information in patent
applications). Neither PD nor Aurora shall use the other party's
Confidential Information except as expressly permitted in this Agreement;
provided, however, Aurora shall be able to disclose that Confidential
Information which specifically describes the components of the System,
including hardware and software components, to potential Third Party
collaborators.
PD and Aurora each agree that any disclosure of the other's Confidential
Information to any officer, employee, contractor, consultant, sublicensee
or agent of the other party or any of the other party's Affiliates may
be made only if and to the extent necessary to carry out its
responsibilities under this Agreement and to exercise the rights granted
to it hereunder, shall be limited to the extent consistent with such
responsibilities and rights, and shall be provided only to such persons
or entities who are bound to maintain same in confidence in a like manner
as the party receiving same hereunder is so required. Each party, upon
the other's request, will return all the Confidential Information
received from the other party pursuant to this Agreement, including all
copies and extracts of documents, ***of the request of the other party
following any termination of this Agreement, except for one (1) copy
which may be kept for the purpose of ascertaining and complying with
continuing confidentiality obligations under this Agreement.
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6.2. Exceptions to Confidential Information.
Confidential Information shall not include any information which the
receiving party can prove by competent evidence:
i) is now, or hereafter becomes, through no act or failure to
act on the part of the receiving party, generally known or
available;
ii) is known by the receiving party or any of its Affiliates at
the time of receiving such information, as evidenced by its
records;
iii) is hereafter furnished to the receiving party or any of its
Affiliates without restriction as to disclosure or use by a
Third Party lawfully entitled to so furnish same;
iv) is independently developed by the employees, agents or
contractors of the receiving party or any of its Affiliates
without the aid, application or use of the disclosing
party's Confidential Information;
v) is the subject of a written permission to disclose provided
by the disclosing party; or
vi) is provided by the disclosing party to a Third Party without
restriction as to confidentiality.
A party may also disclose Confidential Information of the other where
required to do so by law or legal process, provided that, in such event,
the party required to so disclose shall give maximum practical advance
written notice of same to the other party and will cooperate with the
other party's efforts to seek, at the request and expense of the other
party, all confidential treatment and protection for such disclosure
as is permitted by applicable law.
6.3. Confidentiality of Agreement Terms.
The parties agree that the material financial terms of this Agreement
will be considered Confidential Information of both parties.
Notwithstanding the foregoing, either party may disclose such terms in
legal proceedings or as are required to be disclosed in its financial
statements, by law. Either party shall have the further right to
disclose the material financial terms of this Agreement under
strictures of confidentiality to any of its Affiliates and to any
potential acquirer, merger partner, bank, venture capital firm, or
other financial institution to obtain financing.
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6.4. Publicity.
Except as required by law and as provided in this Article 6, neither
party may make any public announcement or otherwise disclose the terms
of this Agreement without the prior written consent of the other party,
which consent shall not be unreasonably withheld.
7. PATENT PROSECUTION AND COPYRIGHTS
7.1. Patents.
***
The control and expense of the filing, prosecution (including an
opposition or interference) and maintenance of applications claiming
solely owned Inventions will be at the discretion of the owner. At PD's
reasonable request, ***.
7.2. Copyrights.
The parties agree to treat and handle, to the maximum practical extent,
any Copyrights owned or Controlled by a party in the same manner as
Patent Rights owned or Controlled by such party.
8. WARRANTIES AND INDEMNIFICATION
8.1. Mutual Representations and Warranties.
The parties make the following representations and warranties to each
other:
8.1.1. Corporate Power. Each party hereby represents and warrants
that such party (a) is duly organized and validly existing under
the laws of the state of its incorporation and has full corporate
power and authority to enter into this Agreement and to carry out
the provisions hereof; (b) has the requisite power and authority
and the legal right to own and operate its property and assets,
to lease the property and assets it operates under lease, and to
carry on its business as it is now being conducted; and (c) is in
compliance with all requirements of applicable law, except to the
extent that any noncompliance would not have a material adverse
effect on the properties, business, financial or other condition
of it and would not materially adversely affect its ability to
perform its obligations under the Agreement.
8.1.2. Due Authorization. Each party hereby represents and
warrants that such party (a) has the requisite power and
authority and the legal right to enter into the Agreement and to
perform its obligations hereunder; and (b) has taken all necessary
action on its part to authorize the execution and delivery of the
Agreement and to authorize the performance of its obligations
hereunder and the grant of rights extended by it hereunder.
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8.1.3. Binding Agreement. Each party hereby represents and
warrants to the other that: (a) this Agreement has been duly
executed and delivered on its behalf and is a legal and valid
obligation binding upon it and is enforceable in accordance with
its terms; (b) the execution, delivery and performance of this
Agreement by such party does not conflict with any agreement,
instrument or understanding, oral or written, to which it is a
party or by which it may be bound, nor violate any law or
regulation of any court, governmental body or administrative or
other agency having authority over it; and (c) all necessary
consents, approvals and authorizations of all governmental
authorities and other persons required to be obtained by it in
connection with the Agreement have been obtained.
8.2. Warranties and Aurora Technology.
Aurora represents and warrants to PD as of the Effective Date the
following:
8.2.1. ***
8.2.2. EXCEPT AS SET FORTH IN SECTION 8.2.1 ABOVE, AURORA
(INCLUDING ITS OFFICERS, EMPLOYEES AND AGENTS) EXPRESSLY
DISCLAIMS ANY REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR
IMPLIED, RELATING TO THE SYSTEM, AURORA PATENT RIGHTS, AURORA
COPYRIGHTS AND AURORA SYSTEM TECHNOLOGY. AURORA FURTHER
DISCLAIMS I) ANY EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE OF THE SYSTEM, AURORA SYSTEM
TECHNOLOGY AND AURORA PATENT RIGHTS, II) ANY EXPRESS OR IMPLIED
WARRANTY THAT THE SYSTEM, PRACTICE OF AURORA COPYRIGHTS, AURORA
SYSTEM TECHNOLOGY OR AURORA PATENT RIGHTS WILL NOT INFRINGE A
PATENT, COPYRIGHT, TRADEMARK OR OTHER RIGHT OF A THIRD PARTY, AND
III) ANY EXPRESS OR IMPLIED WARRANTY REGARDING THE PATENTABILITY
OF ANY AURORA SYSTEM TECHNOLOGY, INCLUDING THE SYSTEM, AURORA
SYSTEM TECHNOLOGY CLAIMED IN PATENT APPLICATIONS AS PART OF
AURORA PATENT RIGHTS.
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8.3. Aurora Indemnification.
***
IN NO EVENT SHALL AURORA BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL
DAMAGES SUFFERED BY PD RESULTING FROM THE EXERCISE OF ANY RIGHTS GRANTED
IN ACCORDANCE WITH THIS AGREEMENT.
8.4. PD Indemnification.
***
IN NO EVENT SHALL PD BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL
DAMAGES SUFFERED BY AURORA RESULTING FROM THE EXERCISE OF ANY RIGHTS
GRANTED IN ACCORDANCE WITH THIS AGREEMENT.
9. TERM AND TERMINATION
***
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9.2 Termination By Mutual Agreement.
***
9.3 Termination for Cause.
Either party shall have the right to terminate this Agreement at any time
for a material breach of this Agreement by the other party, provided
that the non-breaching party shall have given the breaching party ***of
the breach and intention to terminate this Agreement in the absence of a
cure*** of receipt of such notice by the beaching party. Upon
termination of this Agreement for cause by Aurora, all licenses and
sublicenses granted in accordance with this Agreement shall be
terminated. The non-breaching party, upon termination of this
Agreement may seek actual or general damages, but not consequential
damages, and remedies available to it at law or in equity.
***
9.5 Effect of Expiration or Termination.
The obligations and rights of the parties under Sections 3.1 and 4.1,
4.2, 6, 7, 8.1 and 8.2 thereof, as well as any provisions, which, by
their intent or meaning are intended to so survive, shall survive
termination or expiration of this Agreement.
10. MISCELLANEOUS
10.1. Assignment.
***
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***
10.2. Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the
successors and permitted assigns of the parties. Any assignment not in
accordance with this Agreement shall be void.
10.3. Force Majeure.
Neither party shall lose any rights hereunder or be liable to the other
party for damages or losses on account of failure of performance by the
defaulting party if the failure is occasioned by war, fire, explosion,
floods (including but not limited to floods caused by El Nino),
earthquake, strike, lockout, embargo, act of God, or any other similar
cause beyond the control of the defaulting party, provided that the party
claiming force majeure has exerted all reasonable efforts to avoid or
remedy such force majeure and thereafter takes all reasonable steps to
mitigate any such delay in performance hereunder and any damages that
may be incurred by the other party thereby.
10.4. Notices.
Any notices or communications provided for in this Agreement to be made
by either of the parties to the other shall be in writing, in English,
and shall be made by prepaid air mail or overnight carrier with return
receipt addressed to the other at its address set forth below. Any such
notice or communication may also be given by hand, or facsimile to the
appropriate designation. Notices shall be sent:
If to PD, to: Xxxxxx-Xxxxxxx Company
0000 Xxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxx, 00000
Facsimile number: (000) 000-0000
Attention: Xx. Xxxxxx Xxxxxxxxx
Vice President and Chairman
Xxxxx-Xxxxx Research Division
Copy: Xxxxxx-Xxxxxxx Company
000 Xxxxx Xxxx
Xxxxxx Xxxxxx, XX 00000
Attn: Vice President and General Counsel
Facsimile number: (000) 000-0000
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If to Aurora, to: Aurora Biosciences Corporation
00000 Xxxxxxxxx Xxxx
Xxx Xxxxx, XX 00000
Facsimile number: (000) 000-0000
Attention: Xxxxxxx X. Xxxx, M.D., Sc.D.
Chairman, CEO, and President
Copy: Xxxx Xxxxxxx
Senior Vice President, Corporate Development
provided that if such notice or communication relates to an amendment to
this Agreement or to any notice pursuant to Article 11 hereof, a copy
shall also be sent to:
If to PD, to: Xxxxxxx X. Xxxxxx
Assistant General Counsel
Pharmaceutical Research Division
Xxxxxx-Xxxxxxx Company
0000 Xxxxxxxx Xxxx
Xxx Xxxxx, XX 00000
Fax: 000-000-0000
If to Aurora, to: Xxxx X. Xxxxxxxx
Senior Legal Counsel
Aurora Biosciences Corporation
00000 Xxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Fax: 000-000-0000
Either party may by like notice specify or change an address to which
notices and communications shall thereafter be sent. Notices sent by
mail, facsimile or cable shall be effective upon receipt and notices
given by hand shall be effective when delivered.
10.5. Governing Law and Jurisdiction.
This Agreement shall be governed by the laws of the State of California,
as such laws are applied to contracts entered into and to be performed
within such state. Any dispute arising out of or relating to this
Agreement ***
10.6 Waiver.
Except as specifically provided for herein, the waiver from time to time
by either of the parties of any of their rights or their failure to
exercise any remedy shall not operate or be construed as a continuing
waiver of same or any of the other of such party's rights or remedies
provided in this Agreement.
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10.7. Severability.
If any term, covenant or condition of this Agreement or the application
thereof to any party or circumstance shall, to any extent, be held to be
invalid or unenforceable, then the remainder of this Agreement, or the
application of such term, covenant or condition to the parties or
circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby and each term, covenant or
condition of this Agreement shall be valid and be enforced to the
fullest extent permitted by law; and the parties hereto covenant and
agree to renegotiate any such term, covenant or application thereof in
good faith in order to provide a reasonably acceptable alternative to
the term, covenant or condition of this Agreement or the application
thereof that is invalid or unenforceable, it being the intent of the
parties that the basic purposes of this Agreement are to be effectuated.
10.8. Independent Contractors.
It is expressly agreed that Aurora and PD shall be independent
contractors and that the relationship between the two parties shall not
constitute a partnership or agency of any kind. Neither Aurora nor PD
shall have the authority to make any statements, representations or
commitments of any kind, or to take any action, which shall be binding on
the other, without the prior written authorization of the other party to
do so.
10.9. Counterparts.
This Agreement may be executed in two (2) or more counterparts, each of
which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
10.10. Entire Agreement.
This Agreement between the parties of even date herewith sets forth all
of the covenants, promises, agreements, warranties, representations,
conditions and understandings between the parties hereto, and supersedes
and terminates all prior agreements and understanding between the
parties, with respect to the subject matter hereof. There are no
covenants, promises, agreements, warranties, representations conditions
or understandings, either oral or written, between the parties other
than as set forth herein and therein. No subsequent alteration,
amendment, change or addition to this Agreement shall be binding upon
the parties hereto unless reduced to writing and signed by the
respective authorized officers of the parties. This Agreement shall
not be strictly construed against either party hereto. Any conflict
between the terms set forth in the text of this Agreement and the
terms of any Exhibit hereto shall be resolved in favor of the text of
this Agreement.
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10.11. No Third Party Beneficiaries.
No third party, including any employee of any party this Agreement, shall
have or acquire any rights by reason of this Agreement. Nothing
contained in this Agreement shall be deemed to constitute the parties
partners with each other or any third party.
10.12. Construction.
The term "Section" can refer to any single paragraph level found herein
or any collection of multiple paragraphs thereunder.
10.13. Dispute Resolution.
The parties recognize that disputes as to certain matters may from time
to time arise during the term of this Agreement which relate to either
party's rights and/or obligations hereunder. It is the objective of the
parties to establish procedures to facilitate the resolution of disputes
arising under this Agreement in an expedient manner by mutual
cooperation and without resort to litigation or arbitration. The
parties agree that prior to any litigation or arbitration concerning this
Agreement, PD's president and Aurora's president will meet in person or
by video-conferencing in a good faith effort to resolve any disputes
concerning this Agreement. ***.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized representatives.
XXXXXX-XXXXXXX COMPANY AURORA BIOSCIENCES CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx By: /s/ Xxxxxxx X. Xxxx
------------------------- -------------------------
Name: Xxxx. Xxxxxx X. Xxxxxxxxx Name: Xx. Xxxxxxx X. Xxxx
------------------------- -------------------------
Title: Vice President and Chairman Title: President, CEO and Chairman
------------------------- ---------------------------
Date: August 21, 1998 Date: August 4, 1998
------------------------- -------------------------
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LIST OF EXHIBITS
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EXHIBIT 1 - PAGE 1
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EXHIBIT 2 - PAGE 1
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