EXHIBIT 10.20
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED
FOR THE PORTIONS MARKED [***]
CONFIDENTIAL
AGREEMENT BY AND BETWEEN
IMPERIAL CHEMICAL INDUSTRIES PLC
AND
ARENA PHARMACEUTICALS, INC.
TABLE OF CONTENTS
PAGE
Article I. Definitions 1
Article II. Feasibility Study 4
Article III. Exclusivity 5
Article IV. Payments to Arena 6
Article V. Utilization of Data 7
Article VI. Technology License 7
Article VII. Royalty Payments 8
Article VIII. Confidentiality 10
Article IX. Patent Infringement And Enforcement 11
Article X. Representations And Warranties 12
Article XI. Indemnity 12
Article XII. Termination 13
Article XIII. Relationship of the Parties 14
Article XIV. Miscellaneous Provisions 14
Signature Blocks 18
Appendices A-1 through A-5
--PLEASE NOTE--
Provisions Within This Agreement Are Deemed "CONFIDENTIAL"
In Accordance With The Terms of Article VIII.
Reviewers are advised to confirm with their attorney as to
any obligations and/or requirements regarding review of this Agreement.
CONFIDENTIAL
AGREEMENT
This Agreement ("Agreement") is effective as of June 15, 2001 ("Effective
Date") by and between IMPERIAL CHEMICAL INDUSTRIES PLC, having a place of
business at ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ("ICI") and ARENA PHARMACEUTICALS,
INC., having a place of business at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ("Arena").
WHEREAS, ICI is a company which produces specialty products including
fragrances, flavors and food ingredients;
WHEREAS, Arena is a biopharmaceutical organization focused on the
development and use of its proprietary technology for discovery of modulators of
G protein-coupled receptors;
WHEREAS, ICI desires to collaborate with Arena to identify broad-spectrum
modulators of specific G protein-coupled receptors to enhance the discovery
processes in the fragrances, flavors and food industry;
WHEREAS, Arena and ICI each desire to enter into this Agreement on the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, ICI and Arena hereby agree as
follows:
ARTICLE I
DEFINITIONS
Unless otherwise specifically provided herein, the following terms shall
have the following meanings:
"AFFILIATE" when used with reference to a specified person, any person or entity
directly or indirectly controlling, controlled by or under common control with
the specified person, means the direct or indirect ownership of at least 50% of
the outstanding voting securities of an entity.
"ANNUAL" means the period between January 1 and December 31, inclusive.
"ARENA" means Arena and its Affiliates, excluding Aressa Pharmaceuticals, Inc.
"ARENA ACTIVATION TECHNOLOGY" means an Arena proprietary approach to altering a
region of a G Protein-Coupled Receptor to cause, enhance or stabilize
constitutive activation of the altered receptor.
"ARENA PATENT RIGHTS" means all present and/or future patents (including
inventor's certificates) and all present and/or future applications (including
provisional applications) therefor throughout the world as the case may be, and
substitutions, extensions, reissues,
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renewals, divisions, continuations, or continuation-in-part thereof or therefor,
owned or controlled (either fully or partially) by Arena, or under which Arena
may grant licenses or sublicenses, to the extent they are directed to (1) Arena
Activation Technology and/or (2) CART Activated Receptor(s) and/or (3) Screening
Assay(s) and/or (4) CART Identified Ingredient(s). It is understood that ICI
Patent Rights shall be excluded from the scope of Arena Patent Rights. A list of
Arena Patent Rights shall be attached hereto as APPENDIX B1 as of the Effective
Date and Arena shall update APPENDIX B1 from time to time during the terms of
this Agreement by sending ICI such updated APPENDIX B1 and also the updated
APPENDIX B1 as of the end of December in each year within one (1) month after
such date.
"BEST REASONABLE COMMERCIAL EFFORTS" means efforts to achieve a designated
objective, which efforts are based upon reasonably prudent business factors and
considerations.
"CART ACTIVATED RECEPTOR(S)" means a Sensory GPCR to which Arena Activation
Technology has been applied, and which has reached a level of activity such that
its use in an assay results in a signal to noise ratio that predicts its utility
in an Enabled Screening Assay.
"CART IDENTIFIED INGREDIENT(S)" means an ingredient, and/or a Derivative of a
CART Identified Ingredient, that has been identified from ICI Library
Ingredient(s) as a modulator of a CART Activated Receptor(s).
"INGREDIENT DISCOVERED DURING THE FEASIBILITY STUDY" or "INGREDIENT DISCOVERED
DURING THE EXCLUSIVITY PERIOD" means a CART Identified Ingredient.
"DERIVATIVE" and "DERIVATIVES" of a first ingredient means an ingredient having
the same core structure as the first ingredient.
"EC50 Value" means the concentration of an ingredient that inhibits 50% of
measured second messenger signal of a receptor.
"ENABLED SCREENING ASSAY" means an Arena assay approach for Screening that has
been validated based upon Successful Screening of a CART Activated Receptor.
"ENDOGENOUS" means naturally occurring.
"FIELD" means the [************************************************] uses of
CART Identified Ingredients for modulation of Sensory GPCRs; for purposes of
clarity, the definition of Field includes, but is not limited to,
[**********************].
"G PROTEIN-COUPLED RECEPTOR" and "GPCR" and "GPCRS" each mean Endogenous, human
cell-surface receptor defined by having three (3) intracellular loops, three (3)
extracellular loops, an amino terminus and a carboxy terminus.
"GUSTATORY GPCRS" means GPCRs primarily expressed within the human mouth, throat
and stomach.
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"IC50 VALUE" means the concentration of an ingredient that inhibits 50% of
ligand binding to the receptor.
"ICI" means ICI and its Affiliates.
"ICI LIBRARY INGREDIENTS" shall mean chemical compounds that shall be provided
to Arena by ICI during the term of this Agreement and in accordance with the
requirements set forth in APPENDIX A.
"ICI PATENT RIGHTS" means all present and/or future patents (including
inventor's certificates) and all present and/or future applications (including
provisional applications) therefor throughout the world as the case may be, and
substitutions, extensions, reissues, renewals, divisions, continuations, or
continuation-in-part thereof or therefor, owned or controlled (either fully or
partially) by ICI, or under which ICI may grant licenses or sublicenses, to the
extent they are directed to ICI Library Ingredients It is understood that Arena
Patent Rights shall be excluded from the scope of ICI Patent Rights. A list of
ICI Patent Rights shall be attached hereto as APPENDIX B2 as of the Effective
Date and ICI shall update APPENDIX B2 from time to time during the terms of this
Agreement by sending Arena such updated APPENDIX B2 and also the updated
APPENDIX B2 as of the end of December in each year, within one (1) month after
such date.
"MEASURED RESPONSE" as used in the phrase "Successful Screening" means a signal
measure based upon an assay end-point used to assess the signal.
"OLFACTORY GPCRS" means GPCRs primarily expressed within the olfactory region of
a human.
"PARTY" means either Arena or ICI, as the case may be; "Parties" means both
Arena and ICI.
"REVENUE" means [********************************************************
******************************************************************].
"SCREENING ASSAY" or "RECEPTOR SCREENING ASSAY" means the process of contacting
a chemical compound with a CART Activated Receptor.
"SENSORY GPCRS" means Olfactory GPCRs and Gustatory GPCRs.
"SUCCESSFUL SCREENING" means that the results of the Screening have been
positive whereby at least one molecule from ICI Library Ingredients that has
been Screened reduces or enhances the Measured Response of the CART Activated
Receptor by at least [******************] from the mean response of a screening
plate that includes that compound.
"ARENA TECHNICAL INFORMATION" means all information, trade secrets, know-how,
methods of manufacture, processes, documents and materials (excluding CART
Activated Receptor(s) and Screening Assay(s)), related to CART Activated
Receptor(s) and/or Screening Assay(s), and other proprietary information,
whether patentable or unpatentable, including but not
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limited to, improvements, that are owned or possessed by Arena, whether now
existing or hereafter developed.
"ICI TECHNICAL INFORMATION" means all information, trade secrets, know-how,
methods of manufacture, processes, documents and materials and other proprietary
information, whether patentable or unpatentable, including but not limited to,
improvements, that are owned or possessed by ICI, whether now existing or
hereafter developed, directed to ICI Ingredients.
"TERRITORY" means the world.
"THIRD PARTY" means any person or entity other than ICI, ICI's Licensee(s) and
Arena.
ARTICLE II
FEASIBILITY STUDY
2.1 FEASIBILITY STUDY.
(a) Subject to the terms and conditions of this Agreement, Arena
agrees to initiate a Feasibility Study within five (5) days after the date that
ICI has made the Initial Payment in accordance with Section 4.1 of this
Agreement. The Feasibility Study shall consist of the activities described in
Sections 2.2 through 2.5 of this Agreement ("Feasibility Study"). The
Feasibility Study will last for a period of six (6) months from the date the
Feasibility Study is initiated by Arena ("Feasibility Period").
(b) Except as expressly provided for in Article VI, ICI acknowledges
and agrees that nothing in this Agreement provides any right, express or
implied, to ICI to make, have made, use, have used, sell and/or have sold any
CART Activated Receptor(s), any material covered by Arena Patent Rights and/or
any process covered by Arena Patent Rights.
2.2 ARENA TO SELECT SENSORY GPCRS AND DEVELOP CART ACTIVATED RECEPTOR(S).
Arena, in consultation with ICI, agrees to use Best Reasonable Commercial
Efforts to select at least [******] different Sensory GPCRs ("Selected
Receptors") within thirty (30) days of receipt of the Initial Payment; to use
Best Reasonable Commercial Efforts to apply Arena Activation Technology to
Selected Receptors; and to use Best Reasonable Commercial Efforts to establish
at least [***************************] for each of at least [*******] Selected
Receptors.
2.3 DEVELOPMENT OF SCREENING ASSAYS. Arena agrees to use Best Reasonable
Commercial Efforts to develop at least [*******] different Screening Assays with
each Screening Assay incorporating at least [***************************]
corresponding to each Selected Receptor ("Enabled Screening Assay").
2.4 SCREENING ICI LIBRARY. For each Enabled Screening Assay, Arena shall
use Best Reasonable Commercial Efforts for screening up to, but not exceeding,
[*** ****************] ICI Library Ingredients. Arena agrees that it will not
attempt to determine the chemical structure of any ICI Library Ingredients.
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2.5 CART IDENTIFIED INGREDIENT. For each CART Activated Receptor subject to
screening, Arena shall use Best Reasonable Commercial Efforts to identify at
least [** *****************************] and to determine the IC50 Value and/or
EC50 Value, whichever is applicable, with respect to such CART Identified
Ingredient. Upon identification of each such CART Identified Ingredient, Arena
shall provide Notice to ICI ("Identified Ingredient Notice").
2.6 TECHNICAL INFORMATION TRANSFER. For each CART Activated Receptor that
has been screened in accordance with Section 2.3 of this Agreement, Arena shall
transfer to ICI a copy of all Arena Technical Information owned or possessed by
Arena then applicable to ICI Library Ingredients subjected to a Screening Assay
and/or with respect to any CART Identified Ingredient of Section 2.5. Arena
agrees that the transfer of such Arena Technical Information to ICI under this
Section 2.6 shall be accomplished within thirty (30) days of each Identified
Ingredient Notice.
ARTICLE III
EXCLUSIVITY
3.1 EXCLUSIVITY PERIOD.
(a) For a period of [*****************************] ("Exclusivity
Period"), beginning on the day after the end of the Feasibility Period, ICI
shall have the exclusive right to request that Arena, in consultation with ICI,
select up to, but not exceeding, an additional [******] different Sensory GPCRs
for application thereto of the Arena Activation Technology ("Additional Selected
Receptors"). In addition, during both the Feasibility Period and the Exclusivity
Period, ICI shall have a right of first refusal on Arena projects to develop new
Screening Assays for Sensory GPCRs within the Field, exercisable by sending
written Notice to Arena ("Acceptance Notice") within [*********] days of the
date that Arena gives Notice to ICI of any such projects.
(b) Except as expressly provided for in Article VI, ICI acknowledges
and agrees that nothing in this Agreement provides any right, express or
implied, to ICI to make, have made, use, have used, sell and/or have sold any
CART Activated Receptor, any material covered by Arena Patent Rights, and/or any
process covered by Arena Patent Rights.
3.2 ARENA TO SELECT SENSORY GPCRS AND DEVELOP CART ACTIVATED RECEPTOR(S).
Arena, in consultation with ICI, agrees to use Best Reasonable Commercial
Efforts to select the Additional Selected Receptors, within sixty (60) days
after the commencement of the Exclusivity Period; to use Best Reasonable
Commercial Efforts to apply Arena Activation Technology to each Additional
Selected Receptor; and to use Best Reasonable Commercial Efforts to establish at
least [*****************************] for each Additional Selected Receptor.
3.3 DEVELOPMENT OF SCREENING ASSAYS. Arena agrees to use Best Reasonable
Commercial Efforts to develop at least [*******] different Screening Assays with
each Screening Assay incorporating at least [***************************]
corresponding to each Additional Selected Receptor ("Additional Enabled
Screening Assay").
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3.4 SCREENING ICI LIBRARY. For each Additional Enabled Screening Assay,
Arena shall use Best Reasonable Commercial Efforts for screening up to, but not
exceeding, [*****************] ICI Library Ingredients. Arena agrees that it
will not attempt to determine the chemical structure of any ICI Library
Ingredients.
3.5 CART IDENTIFIED INGREDIENT. For each CART Activated Receptor
subject to screening, Arena shall use Best Reasonable Commercial Efforts to
identify at least [** *****************************] and to determine the
IC50 Value and/or EC50 Value, whichever is applicable, with respect to such
CART Identified Ingredient. Upon identification of each such CART Identified
Ingredient, Arena shall provide Identified Ingredient Notice to ICI.
3.6 TECHNICAL INFORMATION TRANSFER. For each CART Activated Receptor that
has been screened in accordance with Section 3.4 of this Agreement, Arena shall
transfer to ICI a copy of all Arena Technical Information owned or possessed by
Arena then applicable to ICI Library Ingredients subjected to a Screening Assay
and/or with respect to any CART Identified Ingredient of Section 3.5. Arena
agrees that the transfer of such Arena Technical Information to ICI under this
Section 3.6 shall be accomplished within thirty (30) days of each Identified
Ingredient Notice.
ARTICLE IV
PAYMENTS TO ARENA
4.1 INITIAL PAYMENT. Within ten (10) days of the Effective Date, ICI shall
pay to Arena a non-creditable, non-refundable fee in the amount
of [********* **********************] ("Initial Payment").
4.2 THREE INSTALLMENT PAYMENTS. ICI agrees that it shall pay to Arena
three (3) non-creditable, non-refundable installment payments in the amount
of [******* *********************] each on the following monthly anniversary
dates:
(a) the [******************] after the Effective Date;
(b) the [**********************] day after the Effective Date; and
(c) the [*************************] after the Effective Date.
In the event that any of the foregoing anniversary dates falls on a Saturday,
Sunday or federal holiday ("Non-Business Day"), payment shall be made on the
business day following such Non-Business Day.
4.3 EXCLUSIVITY PERIOD COSTS. ICI shall fully reimburse Arena for the
cost, including overhead at the rate of [**********************] of costs,
("Reimbursement Fees") associated with all the activities described in
Article III that are performed on behalf of ICI during the Exclusivity
Period. ICI shall make payments to Arena quarterly for such Reimbursement
Fees within thirty (30) days of the receipt of an invoice from Arena for the
previous calendar quarter's Reimbursement Fees.
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4.4 ACCOUNTING. Arena shall maintain records in reasonable detail of all
monies paid by Arena for work performed on behalf of ICI during the Exclusivity
Period and shall provide ICI, within thirty (30) days of the end of Exclusivity
Period, with a report stating the expenditures made by Arena to complete the
activities defined in Article III, using Arena's standard project accounting
procedures.
ARTICLE V
UTILIZATION OF DATA
5.1 ICI'S UTILIZATION. ICI shall have the exclusive right, excepting
Arena, to use all data in the Field derived from the Feasibility Study and, when
applicable, during the Exclusivity Period. ICI shall exclusively have and
exclusively retain full right, title and interest in any and all patent rights
to the inventions and/or discoveries in the Field related to the ICI Library
Ingredients, including, but not limited to, CART Identified Ingredient(s).
5.2 ARENA'S UTILIZATION. Arena shall exclusively have and exclusively
retain the full right, title and interest in any and all data as well as any
patent right to the inventions and/or discoveries derived from the Feasibility
Study and/or during the Exclusivity Period including, but not limited to, Arena
Activation Technology, CART Activated Receptors, Screening techniques and novel
compounds discovered using these techniques.
ARTICLE VI
TECHNOLOGY LICENSE
6.1 ARENA LICENSE. In consideration for the agreement by ICI to make all
applicable payments to Arena pursuant to Article IV, and conditioned upon the
receipt by Arena of all applicable payments under Article IV, Arena grants to
ICI with respect ONLY to the CART Identified Ingredients referred to in Sections
2.5 and 3.5, an exclusive right and license, exclusive even as to Arena, to
make, have made, use, have used, further develop, improve and otherwise exploit
in any manner, including the right to sub-license, the CART Identified
Ingredients within the Field. IN the event that ICI sub-licenses any right
hereunder , such sub-licensee shall agree to be subject to and bound by the
terms and conditions of this Agreement, and ICI shall be responsible for
ensuring that any such sub-licensee is subject to and bound by the terms and
conditions of this Agreement.
6.2 ARENA TECHNOLOGY. Subject to the terms and conditions of this
Agreement, both Parties acknowledge and agree that Arena has exclusive ownership
of the Arena Patent Rights and Technical Information as of the Effective Date
and any improvement thereof hereafter discovered or developed by Arena.
6.3 ICI TECHNOLOGY. Subject to the terms and conditions of this Agreement,
both Parties acknowledge and agree that ICI has exclusive ownership of the ICI
Patent Rights and ICI Technical Information as of the Effective Date and any
improvement thereof hereafter discovered or developed by ICI.
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ARTICLE VII
ROYALTY PAYMENTS
7.1 ROYALTY PAYMENT.
(a) Subject to the provisions of Section 7.1(d), ICI shall pay to
Arena for any and all CART Identified Ingredient(s) of ICI, or any Licensee of
ICI, that incorporates an Ingredient Discovered During the Feasibility Study or
an Ingredient Discovered During the Exclusivity Period, a royalty payment based
on Annual Revenue of such CART Identified Ingredient(s) in the aggregate as set
forth below; such royalty payment shall be made within three (3) months of
December 31 for the Annual period to which the Annual Revenue applies:
(1) [**************] of the portion of Annual Revenue between
[*******] and [********]; and
(2) [**************] of the portion of Annual Revenue between
[********] and [********]; and
(3) [****************] of the portion of Annual Revenue between
[********] and [*********]; and
(4) [***************] of the portion of Annual Revenue between
[*********] and [*********]; and
(5) [***************] of the portion of Annual Revenue between
[*********] and [*********]; and
(6) [**************] of the portion of Annual Revenue between
[*********] and [*********].
The Parties agree that prior to the completion of the Feasibility Study, the
Parties shall meet and shall determine, in good faith, reasonable royalty
payments with respect to (i) Annual Revenue derived form the sale of a CART
Identified Ingredient(s) by ICI to an organization owned and/or controlled by
ICI, including, but not limited to, an ICI Affiliate, and (ii) Annual Revenue
derived form the sale of a product containing a CART Identified Ingredient(s) by
ICI to a Third Party and/or an organization owned and/or controlled by ICI,
including, but not limited to, an ICI Affiliate.
(b) ANNUAL REVENUE OVER [*********]. The Parties agree to negotiate in
good faith a royalty to be paid by ICI to Arena which will apply to the Annual
Revenue which exceeds [*********] in the aggregate.
(c) REDUCED ROYALTY FEES. The royalty payment set forth in Section
7.1(a) shall be reduced by [***************] for any Ingredient Discovered
During the Feasibility Study or Ingredient Discovered During the Exclusivity
Period when such
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ingredient was (i) in ICI development as of the Effective Date, and (ii) set
forth on APPENDIX C.
(d) CERTAIN INGREDIENTS NOT SUBJECT TO ROYALTY FEES. The royalty
payment set forth in Section 7.1(a) shall not apply to ICI's existing
ingredients which are listed on APPENDIX D, unless such an ICI existing
ingredient listed on APPENDIX D becomes the subject of a pending or issued
patent that includes Arena Technical Information. In that case, the royalty
payment would be on sales above the existing level at the time of the patent
application was filed.
7.2 MINIMUM CUMULATIVE SALES. No ICI product that incorporates an
Ingredient Discovered During the Feasibility Study or Ingredient Discovered
During the Exclusivity Period shall be included in calculating the Annual
Revenue until the cumulative sales of such product exceeds
[****************************].
7.3 ADJUSTMENT OF ROYALTY PAYMENTS. Arena intends that ICI shall not be
commercially disadvantaged from its competitors using similar functional
ingredients arising from parallel technologies or developments as a result of
royalty fee payments to Arena on particular CART Identified Ingredients, and
that the annual ICI Trading Profit on the ingredient shall never be less than
the annual Arena royalty fee on the ingredient.
In the event that ICI believes in good faith that the royalty provisions herein
puts ICI at a commercial disadvantage by virtue of their competitors selling a
similar functional ingredient to a particular CART Identified Ingredient, ICI
may notify Arena and Arena will be open to discussing this issue on a case by
case basis.
7.4 ROYALTY TERM. ICI shall have a continuing obligation to make all
payments set forth in this Article VII until the later expiration of (i)
[******] years from the date that the cumulative sales by ICI exceeds
[***********************] or (ii) the date that the last patent expires on an
Ingredient Discovered During the Feasibility Study or Ingredient Discovered
During the Exclusivity Period. This Section 7.4 shall survive the earlier
termination of this Agreement.
7.5 CHANGE OF CONTROL. In the event that ICI or one of its subsidiaries,
disposes of all or part of one of its subsidiaries, businesses, or divisions,
ICI and/or its successor shall guarantee the obligation of ICI and ICI's
Licensee(s) to continue to make the payments to Arena specified under this
Agreement.
7.6 AUDIT. In order to verify the completeness and correctness of Revenue,
ICI and any ICI Licensee(s) shall maintain up to date books and records and
Arena shall each have the right to conduct, through independent Certified Public
Accountants, at its own cost and at any reasonable time during business hours,
not more often than once each Annual period for not more than [******] previous
years, and upon reasonable prior Notice, an audit of the accounting procedures
and records of ICI and any ICI Licensee(s) used in computing and calculating the
royalty payment for Annual Revenue due hereunder. The auditor shall make
available to ICI and Arena a report enumerating the period covered by the audit
of Revenue computed and calculated by the auditor. The costs of such audit shall
be borne by
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ICI in the event that a discrepancy of more than [** **********] is discovered
through such audit.
7.7 NEITHER PARTY MAKES ANY REPRESENTATION TO THE OTHER THAT ANY CART
IDENTIFIED INGREDIENT AND/OR PRODUCT WILL NOT INFRINGE ANY PATENT, COPYRIGHT,
TRADEMARK OR OTHER PROPRIETARY RIGHT OF ANY OTHER PERSON. NEITHER PARTY MAKES
ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER
WARRANTY, EXPRESS OR IMPLIED, TO THE OTHER WITH RESPECT TO ANY CART IDENTIFIED
INGREIDIENT AND/OR PRODUCT.
ARTICLE VIII
CONFIDENTIALITY
8.1 CONFIDENTIAL DISCLOSURE AGREEMENT. Each Party shall neither
disclose to any Third Party any or all of the information disclosed by the
other Party hereunder or any and all of the information ("Information")
disclosed by the other Party under the "Agreement for the Disclosure of
Confidential Information" effective on the 1st day of August, 2000 between
Arena and ICI, nor permit any such Third Party to have access to such
Information, nor use such Information for any purpose other than for the
purpose of this Agreement, without the prior written consent of the other
Party.
8.2 EXCEPTIONS TO CONFIDENTIAL DISCLOSURE AGREEMENT. The receiving Party's
obligations under Article 8.1 hereof shall not apply, with respect to any of
such Information to the extent that the receiving Party can establish by
competent proof that such Information:
(a) is published, known publicly, or is already in the public domain
at the time of receipt of it by the receiving Party;
(b) is published, becomes known publicly or becomes a part of the
public domain by publication or otherwise after the time of receipt of it by the
receiving Party, except by breach of this Agreement by the receiving Party;
(c) is obtained from a Third Party after the receipt of it by the
receiving Party, provided, however, that said Third Party has not obtained it
directly or indirectly from the disclosing Party;
(d) is in the receiving Party's possession on the date of the receipt
of it and was not acquired directly or indirectly from the disclosing Party; or
(e) is subsequently developed by the receiving Party independent of
the Information received hereunder, as evidenced by competent written records
established by the receiving Party.
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8.3 EXCEPTIONS TO CONFIDENTIALITY. Notwithstanding anything to the
contrary in this Agreement, the receiving Party shall be entitled to disclose
Information (i) to the extent required by any applicable law or court order
provided that the receiving Party furnishes the disclosing Party with written
Notice of such request, in advance of any such disclosure of the Information,
or (ii) to a government agency, or (iii) to a regulatory authority or other
Third Party to whom disclosure is necessary for development of the CART
Identified Compound in connection with product development, approval or
registration of the CART Identified Compound and/or Product or (iv) to the
extent required under the U.S. securities laws, NASDAQ Stock Market rules or
stock exchange requirements.
The foregoing obligations of confidentiality shall survive for five (5) years
after any termination or expiration of this Agreement. All terms and conditions
of Article II, Article III, Article IV, Article V Article VI and Article VII of
this Agreement are designated CONFIDENTIAL by Arena and ICI.
ARTICLE IX
PATENT INFRINGEMENT AND ENFORCEMENT
9.1 NOTIFICATION OF INFRINGEMENT. Each Party shall promptly provide Notice
to the other of any infringement (of which it becomes aware) of the intellectual
property rights contemplated by this Agreement, including patent rights on any
CART Activated Receptor(s) and/or Screening Assay(s) and/or CART Identified
Compound(s) and/or Product(s) by any Third Party and shall provide the other
Party with any available evidence of such infringement of which the Party is
aware.
9.2 SUIT FOR INFRINGEMENT.
(a) During the term of this Agreement, Arena shall be responsible for
enforcement of the Arena Patent Rights including, but not limited to, the
bringing of an action for patent infringement, selection of the forum for such
action, counsel, settlement of any such action, and the costs devoted to such
action. ICI agrees to provide reasonable assistance, except for financial
assistance to Arena, in the enforcement of Arena Patent Rights and ICI may join
such action as initiated by Arena with counsel at its own expense and seek its
own damages and other relief. If within ninety (90) days of ICI's giving Notice
to Arena of a Third Party infringement in the Territory Arena fails to institute
the infringement suit that ICI reasonably feels is required, ICI may institute
such infringement proceedings against said Third Party at its own expense and
ICI shall have the right to receive all the amounts payable by said Third Party
as a result of such proceedings.
(b) In the event a claim of patent infringement is made against ICI by
a Third Party in the Territory by reasons of ICI's commercial activities
hereunder, ICI and Arena shall meet to analyze the infringement claim and
avoidance of the same. If it is necessary to obtain an appropriate license from
such a Third Party, the Parties shall, in negotiating such a license, make every
effort to minimize the amount of license fees and/or royalties payable to such
Third Party and (i) in case that such license is related to Arena Activation
Technology, a CART Activated Receptor and/or an Enabled Screening Assay,
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Arena shall be responsible for such license fees and/or royalties, (ii) in case
that such license is related to a CART Identified Compound, and/or Product, ICI
shall be responsible for a for such license fees and/or royalties.
ARTICLE X
REPRESENTATION AND WARRANTIES
10.1 REPRESENTATIONS AND WARRANTIES OF ICI. ICI represents and warrants to
Arena as follows:
(a) The execution and delivery of this Agreement have been duly and
validly authorized, and all necessary action has been taken to make this
Agreement a legal, valid and binding obligation of ICI enforceable in accordance
with its terms.
(b) The execution and delivery of this Agreement and the performance
by ICI of its obligations hereunder will not contravene or result in the breach
of the Corporate Charter or Bylaws of ICI or result in any material breach or
violation of or material default under any material agreement, indenture,
license, instrument or understanding or, to the best of its knowledge, result in
any violation of law, rule, regulation, statute, order or decree, to which ICI
is a party or by which it or any of its property is subject.
10.2 REPRESENTATIONS AND WARRANTIES OF ARENA. Arena represents and warrants
to ICI as follows:
(a) The execution and delivery of this Agreement have been duly and
validly authorized, and all necessary action has been taken to make this
Agreement a legal, valid and binding obligation of Arena enforceable in
accordance with its terms.
(b) The execution and delivery of this Agreement and the performance
by Arena of its obligations hereunder will not contravene or result in the
breach of the Certificate of Incorporation or Bylaws of Arena or result in any
material breach or violation of or material default under any material
agreement, indenture, license, instrument or understanding or, to the best of
its knowledge, result in any violation of law, rule, regulation, statute, order
or decree, to which Arena is a party or by which it or any of its property is
subject.
ARTICLE XI
INDEMNITY
11.1 INDEMNIFICATION BY ICI. ICI will indemnify and hold harmless Arena and
its Affiliates, employees, officers, directors, shareholders and agents (an
"Arena Indemnified Party") from and against all liability, loss, damages, costs
and expenses (including reasonable attorneys' fees) which an Arena Indemnified
Party may incur, suffer or be required to pay resulting from or arising in
connection with (i) the breach by ICI of any agreement, covenant, representation
or warranty of ICI contained in this Agreement, or (ii) negligence or omission
of ICI.
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11.2 INDEMNIFICATION BY ARENA. Arena will indemnify and hold harmless ICI
and its Affiliates, employees, officers, directors, shareholders and agents (an
"ICI Indemnified Party") from and against all liability, loss, damages, costs
and expenses (including reasonable attorneys' fees) which an ICI Indemnified
Party may incur, suffer or be required to pay resulting from or arising in
connection with (i) the breach by Arena of any agreement, covenant,
representation or warranty of Arena contained in this Agreement, or (ii)
negligence or omission of Arena.
11.3 CONDITIONS TO INDEMNIFICATION. The obligations of the indemnifying
Party under Sections 11.1 and 11.2 of this Agreement are conditioned upon the
prompt Notice to the indemnifying Party of any of the aforementioned suits or
claims in writing within fifteen (15) days after receipt of notice by the
indemnified Party of such suit or claim. The indemnifying Party shall have the
right to assume the defense of any such suit or claim unless, in the reasoned
judgment of the indemnified Party, such suit or claim involves an issue or
matter which could have a materially adverse effect on the business, operations
or assets of the indemnified Party, in which event the indemnified Party may
participate in the defense of such suit or claim at its sole cost and expense.
The provision for indemnification shall be void and there shall be no liability
against a Party as to any suit or claim for which settlement or compromise or an
offer of settlement or compromise is made without the prior consent of the
indemnifying Party.
ARTICLE XII
TERMINATION
12.1 BREACH. Failure by either Party to comply with any of its material
obligations contained in this Agreement shall entitle the other Party to give
Notice to the Party in default specifying the nature of the default and
requiring it to cure such default. If such default is not cured within one (1)
month after receipt of such Notice, the notifying Party shall be entitled,
without prejudice to any of its other rights conferred on it by this Agreement,
to terminate this Agreement and the licenses granted to the breaching Party
hereunder with immediate effect by giving Notice of such termination. The right
of either Party to terminate this Agreement as herein provided shall not be
affected in any way by its waiver of, or failure to take action with respect to,
any previous default.
12.2 DURATION OF THIS AGREEMENT.
(a) This Agreement shall become effective from the Effective Date and
continue to be in effect until expiration of ICI's obligation of royalty payment
hereunder. Thereafter, all licenses or sublicenses granted hereunder shall
become fully paid-up irrecoverable license.
(b) Either Party shall be entitled to terminate this Agreement in the
event of:
(1) insolvency of the other Party or commencement of bankruptcy
proceedings by such Party; or
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(2) dissolution of the other Party by that Party, or liquidation
of such Party by that Party.
(c) The Parties agree that in the event that ICI sublicenses any of
the rights granted to it under this Agreement to a Third Party, such sublicense
shall include provisions whereby if such sublicensee(s) becomes insolvent,
commences bankruptcy proceedings, dissolves, and/or liquidates its assets, any
and all rights granted by ICI to such sublicensee(s) shall automatically revert
back to ICI.
12.4 ACCRUED RIGHTS; SURVIVING OBLIGATIONS. Termination or expiration of
this Agreement for any reason shall be without prejudice to any rights which
shall have accrued to the benefit of either Party prior to such termination or
expiration, nor shall such termination or expiration relieve either Party from
obligations which are expressly indicated to survive termination or expiration
of this Agreement.
ARTICLE XIII
RELATIONSHIP OF THE PARTIES
Nothing in this Agreement is intended or shall be deemed to constitute a
partnership, agency, employer-employee, or joint venture relationship between
the Parties. All activities by each Party hereunder shall be provided as an
independent contractor. No Party shall incur any debts or make any commitments
for the other, except to the extent, if at all, specifically provided herein.
ARTICLE XIV
MISCELLANEOUS PROVISIONS
14.1 The Parties acknowledge and agree that any and all payments to be made
by ICI to Arena under this Agreement are to be (i) in United States Dollars and
(ii) in full as indicated. The Parties acknowledge and agree that the Product
Revenue rates and terms in Article VII under this Agreement are in terms of
United States Dollars.
14.2 LIMITATIONS ON ASSIGNMENT. Neither this Agreement nor any interest
hereunder shall be assignable or transferable by ICI without the prior written
consent of Arena, which consent shall not be unreasonably withheld.
14.3 FURTHER ACTS AND INSTRUMENTS. Each Party hereto agrees to execute,
acknowledge and deliver such further instruments and to do all such other acts
as may be necessary or appropriate to carry out the purpose and intent of this
Agreement.
14.4 ENTIRE AGREEMENT. This Agreement constitutes and contains the entire
agreement of the Parties and supersedes any and all prior negotiations,
correspondence, understandings, letters of intent, term sheets and agreements
between the Parties respecting the subject matter hereof. This Agreement may be
amended or modified or one or more provisions hereof waived only by a written
instrument signed by the Parties.
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14.5 SEVERABILITY. If one or more provisions of this Agreement are held to
be unenforceable under applicable law, such provision shall be excluded from
this Agreement and the balance of the Agreement shall be interpreted as if such
provision were so excluded.
14.6 INTERPRETATION. The Parties expressly and intentionally waive all
rights and benefits which they now have or in the future may have under the
principle of contra proferentem, which provides that "the language of a contract
should be interpreted most strongly against the party who caused the uncertainty
to exist," as stated in
California Civil Code Section 1654. Moreover, the
Parties agree that this entire Agreement, and each provision hereof, shall be
deemed to have been drafted jointly by the Parties. This contract shall be
construed as a whole and in accordance with its fair meaning. In interpreting
this Agreement, any gender shall be deemed to include the other gender, the
singular includes the plural, and vice versa, as the context may require. The
headings and captions to this Agreement are for convenience only and are to be
of no force or effect in construing or interpreting the provisions of this
Agreement.
14.7 FORCE MAJEURE. Neither Party shall be liable to the other Party for
loss or damages, or have any right to terminate this Agreement for any default
or delay, attributable to any act of God, flood, fire, explosion, breakdown or
plant strike, lockout, labor dispute, casualty, accident, war, revolution, civil
commotion, act of a public enemy, blockage, embargo, injunction, law, order,
proclamation, regulation, ordinance, demand or requirement of any government or
subdivision, authority or representative of any government, or any other cause
beyond the reasonable control of such Party.
14.8 NO TRADE NAME OR TRADEMARK LICENSE.
(a) No right, express or implied, is granted by this Agreement to ICI,
ICI collaborators or ICI's Licensees to use in any manner the name "Arena,"
"Arena Pharmaceuticals," "CART" or any trade name or trademark of Arena in any
business dealing which is not directly connected with the performance of this
Agreement; provided, however, that ICI shall have the right to use or disclose
the name Arena only to the extent and the manner as may be required by law.
(b) No right, express or implied, is granted by this Agreement to
Arena, Arena collaborators or Arena licensees to use in any manner the name
"ICI" or any trade name or trademark of ICI in any business dealing which is not
directly connected with the performance of this Agreement; provided, however,
that Arena shall have the right to use or disclose the name ICI only to the
extent and the manner as may be required by law.
(c) During the term of this Agreement, the Parties may issue a press
release regarding the acceptance of this Agreement by the Parties with prior
written consent of the other Party on the contents of such release, which
consent shall not be unreasonably withheld (it is not necessary to obtain the
consent of the other Party for disclosing the information regarding this
Agreement which a Party is required by law to disclose).
14.9 GOVERNING LAW; CONSENT TO JURISDICTION. This Agreement shall be
governed by and construed under applicable federal law of the United States of
America and the laws of the State of
California, excluding any conflict of law
provisions. Each Party consents to
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the service of process by personal service or any manner in which Notices may be
delivered hereunder in accordance with Section 14.12. The Parties further agree
that any dispute resolution under this Section 14.9 shall take place in San
Diego,
California (U.S.A.). Each Party hereby expressly waives any and all
objections it may have to venue, including, without limitation, the
inconvenience of such forum, in any of such courts.
14.10 EXPENSES. Except as otherwise provided herein, each Party hereto
shall bear its legal and other expenses incurred in connection with the
negotiation, execution, delivery and performance of this Agreement.
14.11 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
14.12 NOTICE. Unless otherwise provided, any notice required or permitted
under this Agreement shall be given in writing and shall be deemed effectively
given upon personal delivery to the Party to be notified or upon deposit with
the United States Post Office registered or certified mail, postage prepaid, or
upon deposit with an internationally recognized express courier with proof of
delivery, postage prepaid and addressed to the Party to be notified at the
address or addresses indicated below, or upon the date of fax transmission of
such notice (with proof of such fax transmission established by the sender's fax
receipt) using the fax numbers listed below, or at such other address or fax
number as such Party may designate by ten (10) days' advance written notice to
the other Party with copies to be provided as follows:
IF TO ICI, ADDRESSED TO:
Imperial Chemical Industries PLC
ICI Group Headquarters
London, SWIP 3JF, UK
Attention:
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Address:
Fax:
[THE REST OF THIS PAGE IS INTENTIONALLY BLANK]
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IF TO ARENA, ADDRESSED TO:
Arena Pharmaceuticals, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇
President & CEO
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: General Counsel
Address: same as above
Fax: same as above
14.13 APPENDICES AND EXHIBITS. All appendices and exhibits to which
reference is made are deemed incorporated in full in this Agreement, whether or
not actually attached.
14.14 SURVIVING OBLIGATIONS. The following Articles and Sections shall
survive any termination or expiration of this Agreement: Article I
(Definitions); Article V (Utilization of Data) Article VIII (Confidentiality);
Article IX (Patent Infringement and Enforcement); Article X (Representations and
Warranties); Article XI (Indemnity); and Sections 6.2, 7.4, 7.7, 14.2, 14.3,
14.8, 14.9, 14.12 and 14.14.
[THE REST OF THIS PAGE IS INTENTIONALLY BLANK]
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WHEREUPON, the Parties have caused this Agreement to be executed by their
duly authorized agents, as of the dates listed below.
------------------------------------------------- -------------------------------------------
IMPERIAL CHEMICAL INDUSTRIES PLC ARENA PHARMACEUTICALS, INC.
------------------------------------------------- -------------------------------------------
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
------------------------------- --------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: Duly Authorized Signatory Title: Sr. Vice President, Operations
General Counsel & Secretary
Date: 24 May 2001 Date: 13 June 2001
----------- -------------
------------------------------------------------- -------------------------------------------
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APPENDIX A
ICI LIBRARY INGREDIENTS REQUIREMENTS
A-1
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A-2
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APPENDIX B1
ARENA PATENT RIGHTS
ATTACHED
A-3
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ARENA PATENT RIGHTS
US SERIAL NO. FILING DATE PUBLICATION
09/060,188 4/14/98 WO 98/46995
09/170,496 10/13/98 WO 00/22129
09/364,425 7/30/99 WO 00/06597
U.S. PATENT NO. FILING DATE ISSUE DATE
5,462,856 7/16/91 10/31/95
5,601,992 9/9/94 2/11/97
6,051,386 6/7/95 4/18/00
EP PATENT NO. FILING DATE ISSUE DATE
0539518 7/17/91 3/21/01
A-4
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APPENDIX B2
ICI PATENT RIGHTS
ATTACHED
A-5
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CASE # FILE DATE PATENT NUMBER*
[*******] [*****************] [***************]
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[*******] [*****************] [***************]
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[*******] [*****************] [***************]
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[*******] [*****************] [***************]
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[*******] [*****************] [***************]
[*******] [*****************] [***************]
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* Priority filing with equivalents in other countries
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APPENDIX C
ICI LIBRARY INGREDIENTS IN DEVELOPMENT
AS OF THE EFFECTIVE DATE
ATTACHED
A-9
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APPENDIX D
ICI INGREDIENTS
ATTACHED
A-14
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A-15
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o [******************************************]
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o [****************************************************]
o [*************************************************************
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o [**********************************************************************]
o [******************************************]****************************
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o [***********************************************************************
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The terms on this page shall have the same meanings
as they have in the Agreement.
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