Exhibit 10.8
AGREEMENT
This Agreement (AGREEMENT) is entered into as of June 18, 2001 (EFFECTIVE DATE)
between NeoGenesis, Inc., a Delaware corporation (NEOGENESIS) and Oxford
GlycoSciences (UK) Limited (OGS), a company incorporated under the laws of
England and Wales, and sets forth the terms and conditions that will apply to
the provision by NeoGenesis to OGS of certain screening and analysis services.
BACKGROUND
OGS is interested in identifying potential pharmaceutical products for treatment
of certain human diseases and wishes to identify compounds that exhibit a high
degree of chemical binding and functional activity to specific protein targets.
NeoGenesis has certain technology and know-how, including screening processes of
libraries of mass-encoded small molecule compounds, relating to the
identification, discovery, validation and optimization of novel compounds which
may be useful for development of novel therapeutics employing targets implicated
in a disease process. The parties wish to pursue a collaborative screening
process to identify compounds exhibiting a high degree of chemical binding
activity to targets designated by OGS from among the NeoGenesis libraries of
mass-encoded small molecule compounds and which have activity in bioassays or
functional assays. The terms and conditions set forth below shall govern the
performance of such collaborative effort.
1. DEFINITIONS.
1.1 DEFINED TERMS. Capitalized terms used in this Agreement and not otherwise
defined herein shall have the meanings set forth below.
AFFILIATE means with respect to either party, any Person that, directly or
indirectly, is controlled by, controls or is under common control with such
party. For purposes of this definition, CONTROL means, with respect to any
Person, the direct or indirect ownership of more than [*] of the voting or
income interest in such Person or the possession otherwise, directly or
indirectly, of the power to direct the management or policies of such Person.
ALIS means the Automated Ligand Identification System, an automated,
ultra-high throughput ligand selection system proprietary to NeoGenesis that is
used to identify multiple classes of chemical ligands against target protein.
APPLICABLE LAWS means all laws, statutes, regulations and ordinances of any
Regulatory Authority, including without limitation the FD&C Act with regard to
the FDA.
CATEGORY "A" PUBLIC DOMAIN TARGET means a Public Domain Target that OGS has
identified and linked to a disease through use of its proteomic research
activities, including without limitation its proprietary 2d gel electrophoresis
technology at the time OGS discloses such Public Domain Target.
CATEGORY "B" PUBLIC DOMAIN TARGET means a Public Domain Target that OGS has
identified other than through use of its proteomic research activities at the
time OGS discloses such Public Domain Target.
CHEMOTYPE means a family or group of related Preliminary Compounds (as
defined in ATTACHMENT A).
CIP means "Carriage and Insurance Paid", as that expression is defined in
INCOTERMS 2000, ICC Publishing S.A.
COMMERCIALLY REASONABLE EFFORTS means, with respect to (i) any objective by
any party, reasonable, diligent, good faith efforts to accomplish such objective
as such party would normally use to accomplish a similar objective under similar
circumstances; and (ii) with respect to any objective relating to the
development or Commercialization of any Licensed Product by any party efforts
and resources normally used by such party with respect to a product owned by
such party or to which such party has similar rights which is of similar market
potential at a similar stage in the development or life of such product, taking
into account issues of safety, efficacy, product profile, the cost to develop,
the competitiveness of the marketplace, the proprietary position of the product,
the regulatory structure involved and the likelihood of regulatory approval,
profitability of the product and all other relevant commercial factors.
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SEPARATELY WITH THE COMMISSION.
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COMMERCIALIZATION means any and all activities of using, importing,
exporting, keeping (whether for disposal or otherwise), marketing, promoting,
distributing, offering for sale and selling a Licensed Product. When used as a
verb, COMMERCIALIZE means to engage in Commercialization.
CONFIDENTIAL INFORMATION means any proprietary or confidential information
of either party (including but not limited to any and all OGS Proprietary
Targets, any and all OGS Know-How and any and all NeoGenesis Know-How) disclosed
to the other party pursuant to this Agreement in written or other tangible
medium and marked as confidential, or if disclosed orally or displayed,
confirmed in writing within thirty (30) days of disclosure, except any portion
thereof which: (i) is known to the receiving party, as evidenced by the
receiving party's written records, before receipt thereof under this Agreement;
(ii) is disclosed to the receiving party by a third person who is under no
obligation of confidentiality to the disclosing party hereunder with respect to
such information and who otherwise has a right to make such disclosure; (iii) is
or becomes generally known in the trade through no fault of the receiving party;
or (iv) is independently developed by the receiving party, as evidenced by the
receiving party's written records, without access to such information.
CONTROL OR CONTROLLED means with respect to any (a) item of information,
including, without limitation, OGS Know-How and NeoGenesis Know-How, or (b)
intellectual property right, the possession of the right (whether directly or
indirectly and whether by ownership, license or otherwise, other than pursuant
to this Agreement) by a party or an Affiliate thereof to grant to the other
party access or a license as provided herein under such item or right without
violating the terms of any agreement or other arrangements, between such party
or its Affiliate and any third party, existing before or after the Effective
Date.
EXCLUDED TARGET means a protein target which NeoGenesis has committed to a
Person (other than OGS) prior to such protein target being submitted by OGS to
NeoGenesis pursuant to this Agreement. The designation of a target as an
Excluded Target shall be made using the procedure described in Section 2.1(c).
FDA means the United States Food and Drug Administration, or any successor
thereto.
FD&C ACT means the United States Federal Food, Drug and Cosmetic Act of
1938, as amended.
FIELD means the diagnosis or treatment of any disease in humans.
FIRST COMMERCIAL SALE means, with regard to a Licensed Product, any
transfer for value in an arms-length transaction to an independent third party
distributor, agent or end user in a country within the Territory after obtaining
all necessary Regulatory Approvals as may be necessary for such transfer in such
country.
FORCE MAJEURE means any event beyond the reasonable control of the parties,
including, without limitation, power failure, fire, flood, riots or strikes
(with the exception of riots or strikes involving a party's own workforce),
epidemics, war (declared or undeclared and including the continuance, expansion
or new outbreak of any war or conflict now in existence), embargoes and
governmental actions or decrees.
FTE means the equivalent of a full time (12) months (including normal
vacations, sick days and holidays) work of a person, carried out by one or more
employees or agents of NeoGenesis, who devotes a portion of his or her time to
performing activities in connection with the conduct of the Program, such amount
per FTE not to exceed [*].
IND means an investigational new drug application, as defined in the FD&C
Act and applicable regulations thereunder, or any equivalent document, filed
with the FDA and necessary for beginning clinical trials of any Licensed Product
in humans or any application or other documentation filed with any Regulatory
Authority of a country other than the United States prior to beginning clinical
trials of any Licensed Product in humans in that country.
LICENSED PRODUCT(S) means any product: (a) which includes a Designated
Compound or any derivatives, improvements and components thereof; and (b) the
development, manufacture, use, or sale of which, absent the
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license granted under this Agreement, would infringe the NeoGenesis Know-How or
NeoGenesis Patent Rights or which makes use of any Program Intellectual Property
that is jointly owned by the parties.
MAJOR COUNTRY mean the United States, the United Kingdom, France, Germany,
Italy or Japan, as the case may be.
MANUFACTURING means any and all activities involved in the production of a
Licensed Product to be developed and/or Commercialized under this Agreement.
When used as a verb, MANUFACTURE means to engage in Manufacturing.
NDA means a new drug application as defined in the FD&C Act and applicable
regulations thereunder, and the non-U.S. equivalent thereof.
NEOGENESIS KNOW-HOW means all proprietary technical information, data and
know-how, including but not limited to all Program Intellectual Property
described in clause (a) of the definition of Program Intellectual Property,
relating to: (a) the NeoMorph Screening Library, (b) the NeoMorph Focused
Libraries, (c) ALIS and QSCD, (d) the Preliminary Compounds, (e) the Primary
Active Compounds, (d) the Selected Compounds, together with, where applicable,
any analogs, derivatives, fragments, sub-cellular constituents or expression
products thereof and (e) any other tangible materials provided by NeoGenesis to
OGS for use in the conduct of the Program, which (i) is Controlled by
NeoGenesis, (ii) primarily relates to a Designated Compound or Licensed
Products, whether or not patentable, and (iii) is listed in ATTACHMENT D, as
ATTACHMENT D is amended from time to time in accordance with Section 2.6 or
Section 3.3. The term NeoGenesis Know-How, HOWEVER, does not include (1) any OGS
Know-How, (2) any know-how, processes, information and data which is, as of the
Effective Date or later becomes, generally available to the public or (3) any
general manufacturing or other know-how not specific to the Designated Compound
or Licensed Products.
NEOGENESIS PATENT RIGHTS means (a) those patents and patent applications
listed in ATTACHMENT D, as ATTACHMENT D is amended from time to time in
accordance with Section 2.6(b) or Section 3.3, which are Controlled by
NeoGenesis and are existing as of the Effective Date or filed or issued during
the term of this Agreement; and (b) any and all substitutions, divisionals,
continuations, continuations-in-part, reissues, renewals, registrations,
confirmations, re-examinations, extensions, supplementary protection
certificates and foreign or international equivalents or counterparts thereof.
NEOMORPH CHEMISTRY means the process, proprietary to NeoGenesis, of forming
libraries and sub-libraries of discrete compounds by coupling a broad set of
diverse cores with diverse sets of building blocks employing proprietary
mass-coding algorithms.
NEOMORPH FOCUSED LIBRARIES means those compounds synthesized by NeoGenesis
derived from Active Compounds identified by OGS in bioassays or functional
assays
NEOMORPH SCREENING LIBRARY means the entire collection of libraries
consisting of mass-encoded small molecule organic compounds owned by NeoGenesis
and developed with NeoMorph Chemistry, comprising at least 10,000,000 different
compounds.
NET SALES means the aggregate amounts invoiced for sales or transfers for
value of Licensed Products by OGS, its Affiliates or any of its sublicensee to
an independent third party distributor, agent or end user in the Territory
(other than sales of Licensed Products at cost by OGS, its Affiliates or
sublicensees to a third party for use in a clinical study prior to Regulatory
Approval of such Licensed Product) LESS deductions selected as appropriate from:
(a) credits, refunds, allowances and price adjustments separately and actually
credited to customers for defective, spoiled, damaged, outdated, and returned
Licensed Products, (b) offered and taken trade, quantity and cash discounts and
rebates to customers in amounts customary to the trade and as required to do
business in the country in which they are made and reasonable and customary
commissions on sales of Licensed Product actually allowed to independent third
party "buyer side" intermediaries, (c) sales, excise, value added, turnover,
use, and other like taxes, and customs duties, paid, absorbed or allowed
excluding net income tax, including, without limitation, payments required by
law to be made to governmental authorities, pursuant to any product liability or
personal injury
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compensation schemes in each case to the extent that the same are not capable of
being recovered or reimbursed; (d) reasonable standard costs for filling and
packaging of Licensed Product to include the standard costs for syringes or
other administration devices to the extent used, (e) any bad debts which are in
fact unrecoverable, and (f) outbound packing, transportation, insurance and
handling charges separately billed to the customer or prepaid. Net Sales shall
not include revenue received by OGS (or any of its Affiliates) from transactions
with an Affiliate, where the Licensed Product in question will be resold to an
independent third-party distributor, agent or end user by the Affiliate where
such revenue received by the Affiliate from such resale is included in Net Sales
in accordance with Section 4.3. Revenue received by OGS (or any of its
Affiliates) from transactions with an Affiliate, where the Licensed Product in
question is used by the Affiliate solely for such Affiliate's internal purposes
shall also be included in Net Sales at a price equal to the fair market value of
such transfer(s).
OGS KNOW-HOW means all proprietary technical and clinical information, data
and know-how, including but not limited to all Program Intellectual Property
described in clause (c) of the definition of Program Intellectual Property,
relating to: (a) the Targets, (b) the Designated Compounds, together with, where
applicable, any analogs, derivatives, fragments, sub-cellular constituents or
expression products thereof, or (c) the Licensed Products, whether or not
patentable, Controlled by OGS or its Affiliates as of the Effective Date or
during the term of this Agreement. OGS Know-How includes, without limitation,
all processes, formulas, discoveries and inventions whether relating to
biological, chemical, pharmacological, toxicological, pharmaceutical, physical
and analytical safety, quality control and clinical data, including, without
limitation, clinical study data. OGS Know-How also includes relevant medical
information relating to the Licensed Products (such as customer questions,
responses thereto and adverse drug event) history in the possession of OGS, its
Affiliates or sublicensees. The term OGS Know-How, however, does not include the
NeoGenesis Know-How or any know-how, processes, information and data which is,
as of the Effective Date or later becomes, generally available to the public.
OGS PATENT RIGHTS means (a) those patents and patent applications (other
than patent applications and patents included within the NeoGenesis Patent
Rights) Controlled by OGS at any time during the term of this Agreement which
relate to or otherwise would be infringed by the manufacture, use, importation
or sale of any Designated Compound or Licensed Product and (b) any and all
substitutions, divisionals, continuations, continuations-in-part, reissues,
renewals, registrations, confirmations, re-examinations, extensions,
supplementary protection certificates and foreign or international equivalents
or counterparts thereof.
OGS PROPRIETARY TARGET means a protein target for which (a) a patent has
issued to OGS claiming such protein target (including patents that have been
assigned to or licensed by OGS) and which has not expired, lapsed, or been held
invalid, unpatentable or unenforceable by a final decision, which is unappealed
or unappealable, of a court of competent jurisdiction or of an administrative
agency having authority over patents; or (b) a patent application has been filed
which patent application has not been the subject of a rejection notice from
which an appeal cannot be taken or in respect of which the applicable period of
appeal has expired (including patent applications that have been assigned to or
licensed by OGS).
PERSON means any individual, corporation, association, partnership (general
or limited), joint venture, trust, estate, limited liability company, limited
liability partnership, unincorporated organization, government (or any agency or
political subdivision thereof) or other legal entity or organization.
PROGRAM means the screening program described in ATTACHMENT A as the same
may be amended during the term of this Agreement by mutual agreement of the
parties acting through the Steering Committee (as defined below). The Program
will be directed toward the discovery and development of Primary Active
Compounds and Selected Compounds for the Targets, the re-synthesis and
confirmation of such Compounds and the supply of purified quantities of such
compounds to OGS in accordance with the pre-defined amounts and pre-defined
purities set out in ATTACHMENT A.
PROGRAM INTELLECTUAL PROPERTY means individually and collectively all
discoveries, inventions, know-how, techniques, methodologies, modifications,
improvements, works of authorship, designs and data (whether or not protectable
under patent, copyright, trade secrecy or similar laws) that are conceived,
created, discovered, developed, or reduced to practice or tangible medium of
expression (a) solely by one or more employees or consultants of NeoGenesis at
any time in the course of the Program; (b) jointly by one or more employees or
consultants of
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NeoGenesis and one or more employees or consultants of OGS at any time in the
course of the Program; or (c) solely by one or more employees or consultants of
OGS at any time in the course of the Program. Program Intellectual Property is
listed in ATTACHMENT B, which shall be amended from time-to-time to include new
Program Intellectual Property, in accordance with Section 3.3.
PUBLIC DOMAIN TARGET means a protein target which has been implicated in a
human disease in published scientific literature prior to its submission by OGS
to NeoGenesis as a Target. Where the context so requires, references to Public
Domain Targets shall include Category "A" Public Domain Targets and/or Category
"B" Public Domain Targets, as appropriate.
QSCD means Quantisized Surface Complimentary Diversity, a model proprietary
to NeoGenesis, in terms of which discrete chemical compliments to the surfaces
of a Target are defined.
R&D PROGRAM means on a Designated Compound-by-Designated Compound and
country-by-country basis the activities necessary or desirable to be undertaken
in connection with the research and development of such Designated Compound
prior to obtaining Regulatory Approval for a Licensed Product in such country
(regardless of the country in which such activities are conducted).
REGULATORY APPROVALS means, for any country in the Territory, those
authorizations by the appropriate Regulatory Authority(ies) required for the
manufacture, importation, marketing, promotion, pricing and sale of the Licensed
Product(s) in such country.
REGULATORY AUTHORITY means any national, supra-national, regional, state or
local regulatory agency, department, bureau, commission, council or other
governmental entity in the Territory, including, without limitation, the FDA.
SUCCESS CRITERIA means the success criteria defined by the Steering
Committee with respect to Selected Compounds that have a certain desired degree
of chemical binding activity and activity in Target-based functional assays.
TARGET means a specific protein target(s) selected by OGS for which
NeoGenesis will perform the Program. The Target(s) are identified in ATTACHMENT
C. For the avoidance of doubt, a Target may be an OGS Proprietary Target or a
Public Domain Target, and in either case, such a Target may be validated or
unvalidated.
TERRITORY means all the countries of the world.
1.2 OTHER DEFINED TERMS. The following terms shall have the meanings set forth
in the section appearing opposite such term:
AGREEMENT Recitals
BANKRUPTCY CODE Section 3.1
CLAIM NOTICE Section 6.6
COMPOUNDS ATTACHMENT A
DESIGNATED COMPOUND Section 2.6
EFFECTIVE DATE Recitals
ICC Section 9.1
INDEMNIFYING PARTY Section 7.4
FINAL TARGET REPORT ATTACHMENT A
LICENSED TECHNOLOGY Section 3.1
LOSSES Section 7.2
NEOGENESIS Recitals
NEOGENESIS INDEMNIFIED PARTY Section 7.3
OGS Recitals
OGS INDEMNIFIED PARTY Section 7.2
PHASE I CLINICAL TRIALS Section 4.3
PHASE II CLINICAL TRIALS Section 4.3
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PHASE III CLINICAL TRIALS Section 4.3
POTENTIALLY EXCLUDED TARGET Section 2.1(c)
PRELIMINARY COMPOUND ATTACHMENT A
PRIMARY ACTIVE COMPOUNDS ATTACHMENT A
PROGRAM COMMENCEMENT DATE Section 2.1(a)
PROGRAM TERM Section 8.1
REJECTED RIGHTS Section 3.3(b)
ROYALTY TERM Section 4.5
SCREENING PERIOD Section 2.2
SELECTED COMPOUND(S) ATTACHMENT A
STEERING COMMITTEE Section 2.5
2. SCREENING PROGRAM; R&D PROGRAM; COMMERCIALIZATION
2.1 DISCLOSURE OF TARGET PROTEINS. (a) During the Program Term, OGS shall from
time to time disclose Targets to NeoGenesis in writing marked for the attention
of Xxxxxx Xxxxxx. The parties intend that Target disclosure will be made at an
average rate of [*] Targets per quarter and up to a maximum of [*] Targets per
year. To the extent that any shortfall arises between the proposed number of
Targets to be disclosed and the actual number of Targets disclosed by OGS during
any [*] period of the Program Term, OGS shall have the right but not the
obligation to provide Targets to make up such shortfall during the remaining
term of this Agreement; PROVIDED, that (i) NeoGenesis shall not be required to
initiate screening pursuant to Section 2.2 of more than [*] Targets in any [*]
period of the Program Term and (ii) OGS shall complete all Target disclosure not
later than the beginning of [*] following the commencement of the Program by
NeoGenesis with respect to the first Target, as noticed to OGS by NeoGenesis in
accordance with Section 9.7 (PROGRAM COMMENCEMENT DATE). For the avoidance of
doubt, it is agreed by the parties that it shall not be a breach of this
Agreement should OGS deliver less than [*] Targets in any year of this
Agreement, but that OGS shall not be permitted to propose Targets after the
beginning of the [*] following the Program Commencement Date except to the
extent that a Target submitted at the beginning of the [*] following the Program
Commencement Date is excluded by NeoGenesis pursuant to the terms of Section
2.1(c); PROVIDED FURTHER, that OGS provides an alternative Target for such
Excluded Target within [*] following the date NeoGenesis notifies OGS that such
Target has been excluded.
(b) OGS will make the initial disclosure of proposed Targets within [*] of
the Effective Date such disclosure to include not less than [*] proposed
Targets.
(c) Within [*] of each disclosure of a proposed Target by OGS, NeoGenesis
shall notify OGS as to whether such Target is an Excluded Target. If NeoGenesis
does not serve such notice with the specified period, such Target shall not be
deemed to be an Excluded Target. NeoGenesis may deem a Target as an Excluded
Target if such Target: (i) is the subject of an internal NeoGenesis screening
program; (ii) is already the subject of a contract between NeoGenesis and a
third party; or (iii) has already been disclosed to NeoGenesis by a third party
with the intention that such Target become the subject of a contract between
NeoGenesis and such third party (a POTENTIALLY EXCLUDED TARGET); PROVIDED, that
with respect to Potentially Excluded Targets pursuant to Section 2.1(c)(iii),
such Targets shall only become Excluded Targets if NeoGenesis and the applicable
third party enter into an agreement for such Potentially Excluded Target within
[*] following the date on which NeoGenesis identifies such Target as a
Potentially Excluded Target. NeoGenesis undertakes to promptly notify OGS in
writing: (A) if a contract is signed within the [*] period; or (B) upon the
expiry of the said [*] period if a contract has not been signed; with regard to
any such Potentially Excluded Target and to the extent that no such contract has
been entered into, such Potentially Excluded Target shall automatically be
deemed a Target unless OGS otherwise notifies NeoGenesis within [*] of receipt
of said notice.
(d) OGS Targets may be either Public Domain Targets or OGS Proprietary
Targets; PROVIDED, that the aggregate number of Category "B" Public Domain
Targets that NeoGenesis shall be obligated to accept pursuant to this Agreement
shall not exceed [*] during each 12-month period of the Program Term.
2.1A DELIVERY OF TARGET PROTEINS. OGS shall deliver Targets that have been
accepted by NeoGenesis to NeoGenesis within [*] following acceptance by
NeoGenesis in accordance with Section 2.1. OGS shall provide such Targets in the
quantities and formats specified in ATTACHMENT A. OGS shall also provide
NeoGenesis at the time of
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delivery with a written description of the concentration and volume of the
Target in order to assist NeoGenesis in performing the screening activities
contemplated by the Program. OGS shall deliver the Targets CIP to NeoGenesis's
Cambridge facility. The Targets will be packed and shipped by OGS in accordance
with good commercial practice, and OGS shall bear the risk of loss of each
Target until it is delivered to NeoGenesis.
2.2 SCREENING PROGRAM. (a) NeoGenesis will apply its ALIS method to screen the
NeoMorph Library for activity with respect to each Target for purposes of
identifying potentially useful chemical compounds for further evaluation and
development. Screening will be performed pursuant to the screening protocol for
the Program set forth in ATTACHMENT A. With respect to each Target delivered by
OGS, NeoGenesis shall initiate its screening obligations as more particularly
set out in the Program within [*] following the date of receipt of such Target
and complete such screening obligations within [*] following the date it
commences its screening obligations with respect to such Target, unless the
parties agree in writing to extend the period for performance and except as
otherwise provided in Section 2.1(a)(ii) (such period, the SCREENING PERIOD).
(b) Notwithstanding any provision of this Agreement to the contrary, it is
understood and agreed that while NeoGenesis will attempt to complete the Program
within thirty six (36) months following the Effective Date, in the event and to
the extent that NeoGenesis has not completed the Program with respect to any
Target(s) disclosed by OGS within thirty three (33) months following the Program
Commencement Date (or thereafter with respect to Targets that are excluded by
NeoGenesis as contemplated by Section 2.1(a)) NeoGenesis will continue to
perform the Program during the period following the expiration of thirty six
(36) months following the Effective Date until NeoGenesis completes the Program
for each Target submitted in accordance with Section 2.1(a) and NeoGenesis shall
not xxxx OGS any additional fees with respect to the work required to complete
the Program with respect to such Targets following the expiration of such thirty
six (36) month period; PROVIDED, OGS has paid all fees required under Section
4.2 and provided FURTHER that NeoGenesis may xxxx OGS for any additional fees
due NeoGenesis in respect of "additional" work as contemplated by ATTACHMENT A
(Items 6-7).
2.3 GRANT OF RESEARCH LICENSE. OGS hereby grants NeoGenesis a nonexclusive,
nontransferable, royalty-free license to use OGS Know-How and OGS Patent Rights
solely for the purposes of conducting the Program and performing NeoGenesis's
obligations to OGS under the Program. NeoGenesis will not use OGS Know-How or
OGS Patent Rights for any other purpose, without OGS's prior written permission.
NeoGenesis shall not (a) grant, or attempt to grant, a sub-license to use OGS
Know-How or OGS Patent Rights to any Person without the express written consent
of OGS, (b) perform any tests on any of the Targets that are outside the scope
of the Program, or (c) modify the Targets supplied by OGS, including, without
limitation, the making of any derivatives, analogs or components thereof. In the
event that NeoGenesis does not consume all quantities of the Targets supplied by
OGS in performance of the Program, NeoGenesis will, upon completion of the
Program promptly, return to OGS any quantities of such Target(s) and any
derivatives, analogs or components thereof or destroy said quantities, at OGS's
option.
2.3A EXCLUSIVITY. (a) NeoGenesis agrees and undertakes that it will not conduct
screening services for any third Person in respect of any Targets during the
period from the date they are declared by OGS until:
(i) [*] following the date OGS designates a Designated Compound for such
Target (or the date [*] following the date NeoGenesis delivers Selected
Compounds for such Target if OGS fails to designate a designated Compound
within such [*] period) for OGS Proprietary Targets;
(ii) [*] following the date OGS delivers such Target for Category "A"
Public Domain Targets ; and
(iii) the date OGS designates a Designated Compound for such Target (or the
date [*] following the date NeoGenesis delivers Selected Compounds for such
Target if OGS fails to designate a designated Compound within such [*]
period) for Category "B" Public Domain Targets.
(b) Upon the expiration of the applicable exclusivity period as specified
under Section 2.3A(a): (i) NeoGenesis may conduct screening services for any
third Person in respect of any Targets; PROVIDED, that until the [*] anniversary
of the expiration date of the applicable exclusivity period as specified under
Section 2.3A(a) such services are performed at the request of such third party
and not as a result of any solicitation by NeoGenesis regarding such
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Target; and (ii) NeoGenesis shall not conduct any screening services for its
internal development programs until the third anniversary of the applicable
exclusivity period as specified under Section 2.3A(a).
(c) It is understood and acknowledged by NeoGenesis that the restriction
imposed by this Section 2.3A operates independently of any OGS Patent Right(s)
that OGS may hold in respect of any OGS Proprietary Target.
2.4 SCIENTIFIC REPORTS. (a) NeoGenesis will keep and maintain adequate records
containing laboratory data generated in the course of the Program to enable it
to furnish complete and accurate information to OGS regarding the Program
activities and results, including all Preliminary Compounds, Active Compounds
and NeoMorph Focused Libraries identified in the Program and all Program
Intellectual Property developed during the Program. All such written records of
NeoGenesis shall be open to inspection by OGS during normal business hours upon
reasonable prior written notice.
(b) NeoGenesis shall provide OGS with reasonably-detailed written reports
describing the results of the research performed pursuant to the Program
including all Preliminary Compounds, Active Compounds and NeoMorph Focused
Libraries identified in the Program. Such reports shall be delivered to OGS at
least monthly during the Program. NeoGenesis will deliver a Final Target Report
(as defined in ATTACHMENT A) with respect to the Program work performed on each
Target including a description of all the Preliminary Compounds, Primary Active
Compounds and NeoMorph Sublibraries identified during the Program with respect
to such Target.
2.5 STEERING COMMITTEE. (a) A Steering Committee (STEERING COMMITTEE) shall be
responsible for the day-to-day management of the Program. The Steering Committee
shall consist of four members, two members to be appointed by each of NeoGenesis
and OGS. Each party may with notice to the other substitute any of its members
serving on the Steering Committee. The initial OGS members shall be [*] and [*]
and the initial NeoGenesis members shall be [*] and [*]. Each member of the
Steering Committee will have one vote and all decisions of the Steering
Committee will [*].
(b) The Steering Committee shall be responsible for the management and
conduct of the Program and shall in particular: (i) consider, review and amend
the Program from time to time in such manner as may be appropriate; (ii) monitor
progress of the Program; (iii) report regularly to the management of both
parties upon the progress of the Program; and (iv) be the initial medium for
transfer of information between the parties.
(c) The Steering Committee shall hold meetings as mutually agreed by the
parties (but in no event less than quarterly during the Research Term) to review
the Program. The first meeting of the Steering Committee shall be held within
forty-five (45) days of the Effective Date and shall be held in Cambridge, MA.
Thereafter, meetings may be held by telephone or video conference if requested
by either party in writing to the other, PROVIDED THAT the parties shall meet in
person at least two (2) times a year during the Research Term. The party hosting
the meeting shall circulate an agenda at least five (5) business days prior to a
meeting. Minutes of all meetings setting forth decisions of the Steering
Committee relative to the Screening Process shall be prepared by the host party
and circulated to both parties within fifteen (15) days after each meeting, but
minutes shall not become official until approved by both parties (which approval
the parties shall use reasonable efforts to give within thirty (30) days of
receipt of such minutes).
(d) The quorum for Steering Committee meetings shall be two, provided that
at least one member from each of NeoGenesis and OGS is present. Disagreements
among the Steering Committee regarding the Program will be resolved via
good-faith discussions; PROVIDED, that in the event of a disagreement that
cannot be resolved within thirty (30) days after the date on which the
disagreement arose, the matter shall be referred to between OGS's Chief
Executive Officer and NeoGenesis's Chief Executive Officer or their respective
designees. Thereafter, if any such disagreement is not resolved within sixty
(60) days, then OGS shall have the right to make the final decision.
2.6 DESIGNATED COMPOUNDS. (a) Within [*] following the delivery of the Selected
Compounds for each Target by NeoGenesis in accordance with Section 2.4 and
ATTACHMENT A (or the delivery of the corresponding notice regarding Primary
Compound Activity by OGS in accordance with ATTACHMENT A), OGS shall notify
NeoGenesis whether it will classify any Selected Compounds (or any derivative
compound(s) of such Selected Compounds) as the basis for optimisation so as to
yield a candidate for drug development based on OGS's good faith evaluation of
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SEPARATELY WITH THE COMMISSION.
8
the satisfaction of the Success Criteria by such Selected Compound (or any
derivative compound(s) of such Selected Compounds) (each, a DESIGNATED
COMPOUND). If OGS does not identify any Designated Compound(s) within such
period, the license granted OGS shall terminate and be of no further force or
effect with respect to the applicable Target, and no further payment from OGS
shall be due with respect to such Target.
(b) Within thirty (30) days of the Effective Date, NeoGenesis shall update
ATTACHMENT D. Thereafter, within thirty (30) days following receipt of
notification from OGS identifying Designated Compounds, NeoGenesis shall amend
ATTACHMENT D to identify any applicable NeoGenesis Patent Rights not previously
identified to OGS. For the avoidance of doubt, to the extent that ATTACHMENT D
is not updated to include any NeoGenesis Patent Rights that OGS requires to
exercise its license under Section 3.1, NeoGenesis agrees that it shall not have
any action against OGS in relation thereto and shall automatically amend
ATTACHMENT D to include such NeoGenesis Patent Rights.
2.7 REGULATORY MATTERS. OGS shall use Commercially Reasonable Efforts to file
Regulatory Approval applications in the Major Countries (excluding Japan).
Simultaneously with the submission of each such regulatory filing, OGS shall
notify NeoGenesis, in writing, that such regulatory filing has been made and
upon NeoGenesis's request, provide NeoGenesis with a copy thereof. OGS shall be
solely responsible for reporting all adverse events associated with any Licensed
Product to the appropriate Regulatory Authorities in accordance with Applicable
Laws.
2.8 MARKETING AND SALE. OGS, at its sole expense, shall be solely responsible
for the Commercialization of Licensed Products in the Territory and shall use
its Commercially Reasonable Efforts to Commercialize each Licensed Product in
each of the Major Countries (excluding Japan). OGS shall be solely responsible
for establishing the price of each Licensed Product sold by or on behalf of it
pursuant to this Agreement.
2.9 THIRD PARTY LICENSES. OGS shall be solely responsible for (a) obtaining any
and all licenses from third parties necessary or desirable to perform the R&D
Program and/or to Commercialize any Licensed Product and (b) save as otherwise
provided in Section 4.4A, any and all consideration payable with respect to such
licenses.
2.10 COMPLIANCE WITH LAW. OGS shall conduct the R&D Program and its
Manufacturing operations in compliance with all Applicable Laws , and in
compliance with all applicable provisions of this Agreement (to the extent that
such provisions do not contravene such Applicable Laws). OGS shall obtain all
necessary Regulatory Approvals, registrations and permits pertaining to
activities contemplated by this Agreement as required by all Applicable Laws.
2.11 PERIODIC REVIEW. OGS and NeoGenesis shall periodically meet, at such
times and places as are mutually agreed upon, for OGS to provide NeoGenesis
with an update on the status of the progress of OGS's Commercialization of
each Licensed Product, PROVIDED, HOWEVER, that such meetings shall occur no
more than once per calendar year unless the parties agree, in writing, to
meet more often. OGS and NeoGenesis shall each be responsible for its own
expenses incurred in connection with attending such meetings.
3. LICENSE; PROPRIETARY RIGHTS
3.1 GRANT OF LICENSE. (a) Subject to the terms and conditions of this Agreement,
including the payment of all applicable fees, NeoGenesis hereby grants to OGS,
and OGS hereby accepts, an exclusive, worldwide, right and license, within the
Territory and within the Field, to use the NeoGenesis Know-How and NeoGenesis
Patent Rights and NeoGenesis's undivided interest in any Program Intellectual
Property that is jointly owned by NeoGenesis and OGS pursuant to the provisions
of Section 3.2, as embodied in or related to any Designated Compound(s)
(collectively, the LICENSED TECHNOLOGY), to (i) research, develop, make, have
made and use such Designated Compound to develop Licensed Products and (ii) to
make, have made, use, distribute for sale, promote, market, offer for sale,
sell, have sold, import and export Licensed Products. OGS may grant sublicenses
of its rights under this Section 3.1; PROVIDED that OGS: (1) obtains each
sublicensee's written agreement to be subject to obligations at least equivalent
to those that OGS is subject to under Sections 2.10, 2.11, 3.1(c), 3.2, 4.5,
4.7, 4.7A, 4.8, 5.2 and 8.3(c) (last sentence) of this Agreement, (2) uses
reasonable endeavours to obtain each sublicensee's written agreement to be
subject to obligations at least equivalent to those that OGS is subject to under
Sections 7.2(b), 7.3(b) and 7.4 of this Agreement and (3) shall remain
responsible for the performance of all of its obligations under this Agreement,
whether such obligations are performed by OGS, its Affiliates or any of its
sublicensees.
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SEPARATELY WITH THE COMMISSION.
9
(b) The license granted under this Section 3.1 shall be treated as a
license of rights to "intellectual property" (as defined in Section 101(56) of
Title 11 of the United States Code, as amended (the BANKRUPTCY CODE)) for
purposes of Section 365(n) of the Bankruptcy Code. The parties agree that OGS
may elect to retain and may fully exercise all of its rights and elections under
the Bankruptcy Code PROVIDED, that it abides by the terms of this Agreement.
(c) OGS shall xxxx or have marked all containers or packages of Licensed
Products that are the subject of the license granted under this Section 3.1 in
accordance with the patent marking laws of the jurisdiction in which such
Licensed Products are manufactured, used or sold.
3.2 OWNERSHIP RIGHTS.
(a)(i) NEOGENESIS EXISTING INTELLECTUAL PROPERTY. This Agreement does not
convey to OGS any ownership rights in any NeoGenesis Know-How or NeoGenesis
Patent Rights by implication, estoppel or otherwise except for the rights
expressly granted in Section 3.1 and specifically does not convey to OGS any
rights with respect to ALIS or QSCD. Title to the NeoGenesis Know-How and
NeoGenesis Patent Rights shall at all times remain vested in NeoGenesis.
(a)(ii) OGS EXISTING INTELLECTUAL PROPERTY. This Agreement does not convey
to NeoGenesis any ownership rights in any OGS Know-How or OGS Patent Rights by
implication, estoppel or otherwise except for the rights expressly granted in
Section 2.3. Title to the OGS Know-How and OGS Patent Rights shall at all times
remain vested in OGS.
(a)(iii) PROGRAM INTELLECTUAL PROPERTY. Title to and any interest in
Program Intellectual Property described in clause (c) of the Program
Intellectual Property definition shall be the sole and exclusive property of OGS
and is included in the definition of OGS Know-How or OGS Patent Rights, as the
case may be. Title to and any interest in Program Intellectual Property
described in clause (a) of the Program Intellectual Property definition shall be
the sole and exclusive property of NeoGenesis and is included in the definition
of NeoGenesis Know-How or NeoGenesis Patent Rights, as the case may be. Title to
and any interest in Program Intellectual Property described in clause (b) of the
Program Intellectual Property definition shall be jointly held by OGS and
NeoGenesis. Notwithstanding any of the foregoing, Program Intellectual Property,
regardless of inventorship, shall be (i) the property of NeoGenesis if such
Program Intellectual Property is directly related to NeoGenesis' proprietary
mass encoded NeoMorph compound library, ALIS screening technology or QSCD; and
(ii) the property of OGS if such Program Intellectual Property is directly
related to the Targets or the uses thereof or to OGS's functional or secondary
assays, or to the Licensed Products.
(b) INVENTORSHIP. Patent counsel mutually acceptable to the parties and
selected by the Steering Committee in accordance with Section 3.3(c) shall
determine inventorship of all Program Intellectual Property in accordance with
U.S. patent law (and other U.S. intellectual property law) when determining
whether such intellectual property is (i) OGS Know-How or OGS Patent Rights or
(ii) NeoGenesis Know-How or NeoGenesis Patent Rights or (iii) if such
intellectual property is Program Intellectual Property, whether Program
Intellectual Property is jointly owned or is owned solely by NeoGenesis or by
OGS.
(c) RETAINED RIGHTS. NeoGenesis shall retain the following rights with
respect to the following NeoGenesis Know-How and NeoGenesis Patent Rights:
(i) NeoGenesis shall continue to use its compound screening library to
screen target proteins for other parties; PROVIDED, that during the
Program Term with respect to any Target, NeoGenesis shall mask the
Preliminary Compounds that are in the Chemotype of the Designated
Compound(s) relating to such Target from the NeoGenesis NeoMorph
Screening Library.
(ii) NeoGenesis shall continue to use Primary Active Compounds and
Selected Compounds that are not selected as Designated Compounds, as
embodied in focused/optimization libraries developed as part of the
Program to support NeoGenesis patent applications outside the
transactions contemplated by the Program.
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SEPARATELY WITH THE COMMISSION.
10
(iii) NeoGenesis shall retain all rights and continue to use
optimization compounds created as part of the Program but not selected
as Primary Active Compounds or Selected Compounds.
(iv) NeoGenesis shall retain all rights in and continue to use compound
libraries that are designed as part of the Program using QSCD or other
structural information.
3.3 DISCLOSURE; PATENT PROSECUTION. (a) Each of NeoGenesis and OGS shall
disclose to the other the conception or reduction to practice, or the discovery,
development or making of any Program Intellectual Property; such Program
Intellectual Property will be added to ATTACHMENT B (and ATTACHMENT D if
applicable) and will be subject to the provisions of this Agreement. Within
forty-five (45) days following the date of such disclosure regarding the
existence of particular Program Intellectual Property that is either (i) solely
owned by NeoGenesis, but only to the extent that such Program Intellectual
Property relates to the structure of any of the Selected Compounds (during the
period prior to designation pursuant to Section 2.6) or Designated Compounds; or
(ii) jointly owned by the parties, the Steering Committee shall confer as to the
appropriate protection (if any) for such Program Intellectual Property. With
respect to the Program Intellectual Property described Section 3.3(a)(i), such
determination shall be made having reference to the likelihood that seeking
patent protection will adversely effect future filings by OGS with respect to
new chemical entities based upon such Designated Compound (or such Selected
Compounds if the period for designation has not then expired). In the event that
the Steering Committee [*] on whether patent protection should be sought, the
provisions of Section 2.5(d) shall not apply and the parties agree that the
dispute shall be governed by the provisions of Section 9.1.
(b) Subject only to the provisions of Section 3.3(a) above (to the extent
applicable), NeoGenesis shall have the sole right, but not the obligation, to
file, prosecute, and maintain each of the NeoGenesis Patent Rights throughout
the Territory. OGS shall reimburse NeoGenesis for all reasonable, out-of-pocket
expenses incurred by NeoGenesis for the filing, prosecution and maintenance of
NeoGenesis Patent Rights that arise from Program Intellectual Property and are
the subject of the exclusive license granted OGS under Section 3.1 but
specifically excluding reimbursement for any costs associated with NeoGenesis
Patent Rights in existence at the Effective Date including, without limitation,
ALIS or QSCD or other NeoGenesis Patent Rights that are not the subject of such
exclusive license. If any NeoGenesis Patent Rights that are the subject of OGS
reimbursement are subsequently licensed to any other Person, NeoGenesis shall
collect patent expenses from such third party and reimburse OGS a proportionate
amount of the patent expenses that OGS previously funded, with such
proportionate amount being determined with reference to the aggregate number of
licensees of such NeoGenesis Patent Rights. OGS shall not be required to
reimburse NeoGenesis with respect to any patent costs concerning the NeoGenesis
Patent Rights that are the subject of the exclusive license granted OGS under
Section 3.1; PROVIDED, that OGS's license shall exclude any intellectual
property rights that are the subject of such action (e.g., patent coverage in a
particular country) unless and until OGS reimburses NeoGenesis for such costs.
NeoGenesis shall promptly invoice OGS for all reasonable expenses incurred in
relation to these activities. In the event that NeoGenesis elects not to file
for patent protection under the NeoGenesis Patent Rights or elects not to
prosecute or maintain a patent or patent application under the NeoGenesis Patent
Rights (hereafter REJECTED RIGHTS) it shall notify OGS of such decision at least
forty-five (45) days prior to the due date of any action or payment due. OGS
shall have the right, but not the obligation to assume the responsibility
therefor then at its own cost and expense. In the event that OGS elects to
assume responsibility for the prosecution and maintenance of Rejected Rights,
such Rejected Rights shall automatically be removed from the scope of the
exclusive license granted under Section 3.1. NeoGenesis shall keep OGS currently
advised as to the status of all patents and patent applications with respect to
the NeoGenesis Patent Rights and shall supply OGS promptly with copies of all
patents, patent applications, substantive patent office actions, substantive
responses received or filed in connection with such applications. OGS may itself
or through its attorney offer comments and suggestions with respect to the
matters that are the subject of this Section 3.3(b) and NeoGenesis agrees to
consider such comments and suggestions in good faith. Any differences between
NeoGenesis and OGS with respect to preparation, filing, prosecution, issuance
and maintenance matters will be discussed and resolved to their mutual
satisfaction using the procedures specified in Section 9.1, if necessary.
(c) Subject only to the provisions of Section 3.1(a) above, OGS and
NeoGenesis, acting through the Steering Committee, shall select and retain
patent counsel mutually acceptable to each of them for the purpose of preparing,
filing, prosecuting, issuing and maintaining appropriate patent applications
concerning jointly owned Program Intellectual Property. The parties, acting in
consultation, shall be responsible for the preparation, filing (including
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SEPARATELY WITH THE COMMISSION.
11
foreign filing decisions), prosecution and maintenance of such patent
applications and patents relating to jointly owned Program Intellectual
Property. The parties shall ensure that patent counsel provides each party with
copies of documents relevant to the same and each party shall have the
opportunity to review and comment on patent decisions made by patent counsel.
Any differences between NeoGenesis and OGS with respect to preparation, filing,
prosecution, issuance and maintenance matters will be discussed and resolved to
their mutual satisfaction using the procedures specified in Section 9.1, if
necessary; PROVIDED, that if any disagreement regards the costs associated with
a particular proposed action, OGS may assume responsibility for such costs and
the requirement that the parties mutually agree upon resolution of the matter
shall not apply. OGS shall be responsible for all expenses associated with the
preparation, filing, prosecution, issuance and maintenance of patents or other
intellectual property protection for jointly owned Program Intellectual
Property; PROVIDED, that in the event that OGS elects not to pursue a particular
action with respect to which the parties disagree regarding costs, NeoGenesis
shall have the right to assume such costs and to have such action taken;
PROVIDED FURTHER that OGS's license shall exclude any intellectual property
rights that are the subject of such action (e.g., patent coverage in a
particular country) unless OGS reimburses NeoGenesis for the costs of such
action.
(d) OGS shall have the sole right, but not the obligation, to file,
prosecute, and maintain, at OGS's sole expense, each of the OGS Patent Rights
throughout the Territory.
3.4 ENFORCEMENT. (a) NeoGenesis shall be solely responsible for defense and
enforcement of NeoGenesis Know-How and NeoGenesis Patent Rights but excluding
Licensed Technology within the Territory UNLESS legal proceedings with respect
to such Licensed Technology also materially affect intellectual property rights
of NeoGenesis that relate to other then active NeoGenesis research, development
or commercialization programs. OGS shall be solely responsible for the defense
and enforcement of OGS Know-How and OGS Patent Rights.
(b) Except as otherwise provided in Section 3.4(a), OGS shall have the
first option to pursue any enforcement or defense of Licensed Technology within
the Territory; PROVIDED, that OGS pays all costs and expenses related to the
same, keeps NeoGenesis reasonably informed of its progress and provides
NeoGenesis with copies of any material documents related to such proceedings and
reasonable notice of all proceedings relating to same. OGS's costs in
prosecuting such matters shall be subject to reimbursement in accordance with
Section 3.4(d). OGS shall notify NeoGenesis of its decision to exercise its
right to enforce Licensed Technology as soon as possible, but not later than
ninety (90) days following its discovery or receipt of notice of the alleged
infringement.
(c) If OGS does not exercise its option to enforce or defend any Licensed
Technology or (within ninety (90) days of commencing to prosecute any
enforcement or defense action) OGS and NeoGenesis have not otherwise agreed not
to pursue such infringement for business reasons, and OGS (i) has not persuaded
the alleged infringer to desist, (ii) is not diligently pursuing an infringement
action or diligently defending the validity or enforceability of Licensed
Technology at issue, as determined by NeoGenesis in its reasonable discretion,
or (iii) has not provided NeoGenesis with evidence of bona fide negotiations of
an acceptable sublicense agreement with the alleged infringer, then NeoGenesis
shall have the right to pursue the alleged infringer or take control of any
action initiated by OGS at NeoGenesis's own expense. In any such case, OGS will
substitute NeoGenesis as party plaintiff for purposes of pursuing any alleged
infringer.
(d) Any recovery of damages with regard to Licensed Technology in any suit
handled by one party pursuant to Section 3.4(b) or Section 3.4(c) shall be
applied first in satisfaction of any unreimbursed expenses and legal fees of the
litigant relating to the suit or settlement thereof. The balance, if any
remaining after the litigant has been compensated for expenses shall be paid (1)
one hundred percent (100%) to NeoGenesis if NeoGenesis is the prosecuting party
or (2) one hundred percent (100%) to OGS if OGS is the prosecuting party;
PROVIDED that (i) any recovery of ordinary damages based upon infringement of
Licensed Technology shall be deemed to be Net Sales and OGS shall pay NeoGenesis
an amount calculated in accordance with Section 4.4 to reimburse NeoGenesis for
royalties due in respect of lost sales of Licensed Products represented by such
ordinary damages; and (ii) the allocation described in Section 3.4(d)(i) shall
not apply as to special or punitive damages. If the parties jointly participate
(other than the assistance that each party is required to provide to the
litigating party pursuant to Section 3.4(b) or Section 3.4(c), as the case may
be, and for which it has been reimbursed) in prosecuting legal proceedings
relating to infringement of the Licensed Technology, any damages and costs
received in any proceedings or by way of settlement shall be shared by the
parties as follows: (A) the actual costs and expenses of all suits brought by
either
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12
party shall be reimbursed, first to the filing party and then to the
participating party; and (B) any remaining damages shall be split fifty percent
(50%) to NeoGenesis and fifty percent (50%) to OGS. No settlement, or consent
judgment or other voluntary final disposition of any suit regarding Licensed
Technology may be entered into without the consent of the other party, which
consent shall not be unreasonably withheld.
(e) Notwithstanding the provisions of Section 3.4(b), in the event that a
declaratory judgment action alleging invalidity or non-infringement of any of
the patents within Licensed Technology that are within NeoGenesis Patent Rights
but are not within jointly owned Program Intellectual Property, NeoGenesis shall
have the first option, within ninety (90) days after notification of same, to
assume defense of the action concerning its own technology at its expense, but
OGS shall be entitled to participate in such action, at its own expense.
(f) In any infringement suit as either party may institute to enforce
Licensed Technology, or in any declaratory judgment action alleging invalidity
or non-infringement of any Licensed Technology brought against NeoGenesis or
OGS, the other party shall, at the request and expense of the party initiating
or defending the suit or action, cooperate and assist in all reasonable
respects, including being named as a party if necessary, having its employees
testify when requested and making available relevant records, papers,
information, specimens and the like.
(g) Notwithstanding any provisions of Section 3.4 to the contrary, each
party shall immediately give written notice to the other of any certification of
which it becomes aware filed pursuant to the Xxxxxx-Xxxxx Act (21 U.S.C.
Sections.355(b)(2)(A), or Sections.355(j)(2)(A)(vii)), or any amendment or
successor statute thereto, at least fourteen (14) days prior to expiration of
the forty five (45) day period set forth in 21 U.S.C. Sections.355(c)(3)(c) (or
any amendment or successor statute thereto), then OGS shall have the right to
bring such an infringement action, in its sole discretion and at its own
expense, in its own name and/or in the name of NeoGenesis. Any recoveries
obtained (by settlement or otherwise) by either party as a result of any
proceeding against a third party infringer brought under this Section 3.4(g)
shall first be used to reimburse each party for all litigation costs in
connection with such proceeding paid by that party and second, any remainder
shall be paid (x) one hundred percent (100%) to NeoGenesis if NeoGenesis is the
prosecuting party or (y) one hundred percent (100%) to OGS if OGS is the
prosecuting party; PROVIDED that (i) any recovery of ordinary damages based upon
infringement of Licensed Technology shall be deemed to be Net Sales and OGS
shall pay NeoGenesis an amount calculated in accordance with Section 4.4 to
reimburse NeoGenesis for royalties due in respect of lost sales of Licensed
Products represented by such ordinary damages; and (ii) the allocation described
in Section 3.4(g)(i) shall not apply as to special or punitive damages. If OGS
or its sublicensee initiate suit pursuant to this Section 3.4(g), it will
promptly notify NeoGenesis.
4. PRICING; PAYMENT
4.1 EQUITY PURCHASE. OGS agrees to subscribe for and purchase, and NeoGenesis
agrees to authorize and issue to OGS, an aggregate six million United States
dollars (US$6,000,000) worth of Series E (non-voting) Preferred Stock, $.001 par
value per share, at a price of five and 97/100's United States dollars (US$5.97)
per share. Such equity investment shall be made pursuant to a separate Series E
Preferred Stock Purchase Agreement containing mutually acceptable terms. Such
equity subscription shall be made within thirty (30) days following the
Effective Date unless the parties agree to extend the time for the consummation
of such subscription.
4.1A INITIAL PAYMENT. In consideration of the rights granted to it pursuant to
this Agreement and for NeoGenesis agreeing to provide the services more
particularly set out in this Agreement, OGS will pay to NeoGenesis the sum of
[*] within [*] of the Effective Date.
4.1B BONUS PAYMENT. OGS agrees to pay to NeoGenesis the sum of [*] upon
provision to OGS by NeoGenesis of the Selected Compounds [*]. Such payment shall
be made within [*] of notification of such completion by NeoGenesis.
4.2 FTE BASED R&D FUNDING. The Steering Committee shall agree upon the number of
NeoGenesis FTEs to be assigned to the conduct of the Program in each calendar
year (subject to a maximum of [*]. Such staffing level shall be established
prior to the commencement of each year of the Program and shall equal [*] FTEs
for the initial year of the Program. OGS shall provide NeoGenesis with funding
for the budgeted FTEs for each year of the Program at an annual rate of [*] per
FTE, it being understood that the expected annual funding obligation shall equal
[*] FTEs during each year of the Program but that the number of FTEs during the
initial year of the Program may be less than
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13
[*] and that the budgeted number of FTEs in subsequent years of the Program will
exceed [*] FTEs s that the aggregate FTE funding obligation during the [*]
funding period equals [*] FTEs. Payment under this Section 4.2 shall be made by
OGS quarterly in advance; PROVIDED, that the initial installment will be paid
within [*] of the Effective Date. If in any quarterly funding period, actual
expenditures by NeoGenesis with respect to FTEs exceed the amount budgeted for
the period, the overrun will be carried forward for the next period and paid for
from the next payment(s); PROVIDED, that OGS payment obligations for any year of
the Program shall not exceed the budgeted amount for such year UNLESS OGS has
agreed to fund additional FTE work beyond that budgeted for such year by means
of a written amendment to such budget approved in writing by the parties. If in
any period actual expenditures are less than the amount budgeted for the period,
the underrun may be applied to the expenses of the subsequent periods by
NeoGenesis but shall not reduce the amount due NeoGenesis from OGS for the
subsequent period(s). In addition, should OGS require NeoGenesis to conduct any
lead optimisation services in respect of any Designated Compound, the parties
shall meet to discuss the terms upon which NeoGenesis would be willing to
provide such services.
4.2B TREATMENT OF FUNDS. NeoGenesis shall monitor expenditures, in accordance
with its corporate policies, to ensure that the funds provided by OGS are spent
in accordance with this Agreement. NeoGenesis shall keep and maintain adequate
books and records to furnish complete and accurate information to OGS regarding
calculation of the amounts expended by NeoGenesis on the Program according to
the provisions of this Agreement. During the Program Term and for three (3)
years following the expiration of the Program Term, NeoGenesis shall permit OGS
to examine such books and records during normal business hours, upon thirty (30)
days notice to NeoGenesis. Upon the expiry of the three (3) year period, the
calculation of the amounts expended on each year of the Program shall be binding
and conclusive upon the parties and NeoGenesis shall be released from any
further accountability with respect to the Program.
4.3 MILESTONES.
(a) OGS will pay NeoGenesis milestone payments in respect of the [*] Licensed
Products as specified below:
(i) Within thirty (30) days following the date on which the first
administration or dosing of any Licensed Product occurs in the
first Phase I Clinical Trial relating to such Licensed Product,
OGS will pay NeoGenesis [*]. PHASE I CLINICAL TRIALS means any
human clinical trials, the principal purpose of which is a
preliminary determination of safety of a Licensed Product for its
intended use in healthy individuals or patients to support its
continued testing in similar clinical trial prescribed by the
relevant Regulatory Authorities.
(ii) Within thirty (30) days following the date on which the first
administration or dosing of any Licensed Product occurs in the
first Phase II Clinical Trials relating to any Licensed Product,
OGS will pay NeoGenesis [*]. PHASE II CLINICAL TRIALS means any
human clinical trials for which a Primary Endpoint is a
preliminary determination of safety, biological activity, efficacy
or dose ranges in patients with the disease target being studied
(as specified in the Field specified by OGS at the time it submits
such Target pursuant to Section 2.1) as required by the relevant
Regulatory Authorities. PRIMARY ENDPOINT means, with respect to a
Phase II Clinical Trial, the point at which positive statistical
significance has been achieved with respect to the primary
endpoint specified in the protocol for such trial.
(iii)Within thirty (30) days following the date on which the first
administration or dosing of any Licensed Product occurs in the
first Phase III Clinical Trials relating to such Licensed Product,
OGS will pay to NeoGenesis [*]. PHASE III CLINICAL TRIALS means a
human clinical trial the principal purpose of which is to
establish safety and efficacy of a Licensed Product in patients
with the disease target being studied (as specified in the Field
specified by OGS at the time it submits such Target pursuant to
Section 2.1)as required by the relevant Regulatory Authorities.
(iv) Within thirty (30) days following the date on which OGS submits a
NDA covering any Licensed Product with the FDA, or makes a
comparable filing with regulatory authorities in another Major
Country, OGS will pay NeoGenesis [*].
* = CONFIDENTIAL TREATMENT REQUESTED: MATERIAL HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION.
14
(v) Within thirty (30) days following the date on which OGS receives a
NDA approval or equivalent Regulatory Approval from the FDA
permitting the manufacture and sale of a Licensed Product or a
comparable Regulatory Approval for another Major Country, OGS will
pay NeoGenesis [*].
(b) OGS will pay NeoGenesis milestone payments in respect of any subsequent
Licensed Products (not falling within the provisions of Section 4.3(a) above) as
specified below:
(i) Within thirty (30) days following the date on which OGS submits a
NDA covering any Licensed Product with the FDA, or makes a
comparable filing with regulatory authorities in another Major
Country, OGS will pay NeoGenesis [*].
(ii) Within thirty (30) days following the date on which OGS receives a
NDA approval or equivalent Regulatory Approval from the FDA
permitting the manufacture and sale of a Licensed Product or a
comparable Regulatory Approval for another Major Country, OGS will
pay NeoGenesis [*].
(c) On the date any one milestone with respect to a Licensed Product is
achieved, all lower numbered unachieved milestones shall be deemed to have been
achieved with respect to that Licensed Product; PROVIDED that with respect to
the milestone specified in Section 4.3(a)(ii), no payment of such milestone
amount shall be due upon the achievement of the milestone specified in Section
4.3(a)(iii) if Phase II Clinical Trials are not required but such milestone
shall be paid upon the achievement of the milestone specified in Section
4.3(a)(iv).
4.4 ROYALTIES. Not later than forty-five (45) days following each March 31, June
30, September 30 and December 31 (each such 13-week period, a CALENDAR QUARTER)
commencing with the First Commercial Sale of Licensed Products in any country,
OGS shall pay to NeoGenesis royalties by country for the most recent Calendar
Quarter then ended, equal to:
(i) [*] of Net Sales if NeoGenesis is not instructed to conduct lead
optimization activities with regard to the relevant Licensed Product;
or
(ii) [*] of Net Sales if NeoGenesis is instructed to conduct lead
optimization activities with regard to the relevant Licensed Product.
4.4A SUBLICENSE FEES AND ROYALTIES. (a) In the event that OGS sublicenses the
development and commercialization of a Licensed Product to a third Person, OGS
shall pay NeoGenesis (i) [*] of any sublicense fees, milestone payments or other
consideration (excluding royalties) received by OGS during the term of such
sublicense, if NeoGenesis does not perform lead optimisation activities with
regard to the applicable Licensed Product; and (ii) [*] of any sublicense fees,
milestone payments or other consideration (excluding royalties) received by OGS
during the term of such sublicense if NeoGenesis does perform lead optimisation
activities with regard to the applicable Licensed Product; PROVIDED, that the
aggregate consideration paid to NeoGenesis in respect of each Licensed Product
that is the subject of such sublicense shall not exceed [*]. Equity purchases of
OGS securities by a sublicensee shall not be considered to be sublicense fees
provided that fair and commercially reasonable sublicense fees are collected in
conjunction with such transactions.
(b) In the event that OGS sublicenses the development and commercialization
of a Licensed Product to a third Person, OGS shall pay NeoGenesis (i) [*] of any
royalties received by OGS during the term of such sublicense, if NeoGenesis does
not perform lead optimisation activities with regard to the applicable Licensed
Product; and (ii) [*] of any royalties received by OGS during the term of such
sublicense if NeoGenesis does perform lead optimisation activities with regard
to the applicable Licensed Product; PROVIDED, that the royalty rate due on
sublicensee sales of Licensed Products shall not exceed (1) [*] of such
sublicensee's Net Sales of Licensed Products in cases where NeoGenesis does not
perform lead optimisation activities with regard to the applicable Licensed
Product or (2) [*] of such sublicensee's Net Sales of Licensed Products in cases
where NeoGenesis does perform lead optimisation activities with regard to the
applicable Licensed Product.
* = CONFIDENTIAL TREATMENT REQUESTED: MATERIAL HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION.
15
4.4B ROYALTY STACKING. If OGS obtains one or more licenses under patents
owned by a third party to avoid infringement by any Licensed Product of such
third party patent(s), OGS may, beginning from the date of such third party
license, deduct [*] of the amount of royalties paid to such third party on
sales of Licensed Product under such licenses, provided that: (i) such
infringement is primarily due to the Designated Compound as licensed by
NeoGenesis and not related to changes or additions to the Designated Compound
made by a party other than NeoGenesis and (ii) such deductions reduce by no
more than [*] the royalties otherwise due NeoGenesis under Section 4.4 with
respect to such Licensed Product.
4.5 ROYALTY TERM. OGS shall pay any royalties due with respect to each Licensed
Product on a country by country basis until the date which is the later of (i)
the expiration or revocation or complete rejection of the last to expire or to
be revoked or to be completely rejected of any NeoGenesis Patent Right covering
such Licensed Product in the country in which the Licensed Product is
Commercialized, or (ii) if no NeoGenesis Patent Right exists in the relevant
country covering the Commercialization of the relevant Licensed Product, until
[*] from the First Commercial Sale of such Licensed Product in the country in
which the Licensed Product is Commercialized (ROYALTY TERM). Upon expiry of the
Royalty Term, OGS's license under Section 3.1 shall be deemed to be fully paid
and OGS shall be able to continue Commercialization of the relevant Licensed
Product in the relevant country(ies) without any further liability to
NeoGenesis.
4.5A SAMPLES AND DONATIONS. No royalties shall accrue on the disposition of
Licensed Product at cost or without charge by OGS as (a) samples (promotion or
otherwise) or as donations (to non-profit institutions or government agencies
for a non-commercial purpose) or (b) for clinical studies or (c) as donations
(to non-profit institutions or government agencies for clinical purposes) of
Licensed Product. Such dispositions by OGS shall not be included in the
determination of Net Sales but shall be recorded in the royalty report to be
submitted pursuant to Section 4.7A.
4.6 REMITTANCE. (a) All royalties and milestone payments required under this
Section 4 shall be payable in full in the United States in United States
Dollars, regardless of the countries in which sales are made. For the purpose of
computing Net Sales for which a currency other than United States Dollars is
received, such currency shall be converted into United States Dollars at the
simple average of all Mondays' exchange rate for buying United States Dollars
set forth in THE WALL STREET JOURNAL for the calendar quarter in which such
sales were made.
(b) In the event that any payment due to NeoGenesis under this Agreement is
not made when due, NeoGenesis shall be entitled, but not obliged, to demand
interest on the amount due, which interest shall accrue beginning on the
fifteenth (15th) day following the final date on which such payment was due,
calculated at the annual rate equal to two percent (2%) above the prime interest
rate reported in the WALL STREET JOURNAL for the due date, calculated from the
due date until paid in full. Such payment when made shall be accompanied by all
interest so accrued. Said interest and the payment and acceptance thereof shall
not negate or waive the right of NeoGenesis to any other remedy, legal or
equitable, to which it may be entitled because of the delinquency of the
payment.
(c) If at any time legal restrictions imposed by any national authority
prevent the conversion of the local currency and such currency cannot be removed
from such country such that prompt remittance by OGS of any royalties owed by
OGS to NeoGenesis in respect of sales in such country is prevented, the parties
shall consult with a view to finding a prompt and acceptable solution, and OGS
shall make payment through any lawful means or methods that may be available as
NeoGenesis shall reasonably request at no additional out-of-pocket expense to
OGS Notwithstanding the foregoing, if royalties in any country cannot be
remitted to NeoGenesis for any reason within three (3) month after the end of
the relevant Calendar Quarter, then OGS shall pay NeoGenesis in the local
currency of such country by deposit of the relevant royalties in a bank account
in such country designated by NeoGenesis.
4.7 RETENTION OF RECORDS. OGS, its Affiliates and sublicensees shall keep and
maintain for a period of at least three (3) years from the date of each payment
of royalties, records (prepared in accordance with United Kingdom Generally
Accepted Accounting Principles, consistently applied) sufficient to determine
the amounts of Net Sales and payments due under Section 4.3. Upon the expiry of
the three (3) year period, the calculation of royalties payable under this
Agreement in respect of such previous Calendar Quarters shall be binding and
conclusive upon the parties and OGS shall be released from any further
accountability with respect to such Calendar Quarters.
* = CONFIDENTIAL TREATMENT REQUESTED: MATERIAL HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION.
16
4.7A ROYALTY REPORTS. Within forty-five (45) days following each Calendar
Quarter in which payments are due under Section 4.3, OGS shall provide
NeoGenesis with a report including at least: (a) the quantities of Licensed
Products that OGS, its Affiliate(s) and sublicensee(s) sold during the preceding
quarter in each country in which Licensed Products or package products
containing Licensed Products were sold; (b) the quantity of samples and
donations disposed of during the preceding quarter; (c) the monetary amount, in
the national currency of such country, of such sales; (d) actual Net Sales, by
country; (e) the currency conversion rate used and U.S. dollar-equivalent of
such sales; (f) the calculation of royalties thereon; and (g) the total
royalties so computed and due NeoGenesis. The obligation to submit reports shall
only commence upon the First Commercial Sale of a Licensed Product in a country
and thereafter such reports shall be submitted to NeoGenesis whether or not any
sales of Licensed Product have been made during such period. Upon delivery of
the report due for the period ending December 31 of each year, OGS shall also
report to NeoGenesis the aggregate royalties due NeoGenesis for the entire
preceding year.
4.8 INSPECTION. OGS and its Affiliates shall, and OGS shall procure that its
sublicensees shall, each make its records available for inspection by an
independent certified public accountant appointed by NeoGenesis and reasonably
acceptable to OGS during regular business hours at such place or places where
such records are customarily kept, upon reasonable notice from NeoGenesis,
solely to verify the accuracy of the reports and payments. Such inspection right
shall not be exercised more than once in any calendar year nor more than once
with respect to sales of Licensed Products in any given payment period.
NeoGenesis agrees to hold in strict confidence all information concerning
royalty payments and reports, and all information learned in the course of any
audit or inspection, except to the extent necessary for NeoGenesis to reveal
such information in order to enforce its rights under this Agreement. Any person
or entity conducting such audit or inspection will agree in writing with
NeoGenesis to treat all records reviewed in the course of the audit or
inspection as the Confidential Information of OGS under terms and conditions no
less restrictive than the terms contained in Section 5.2. Save in the case of
manifest error, the results of each inspection, if any, shall be binding on both
parties. NeoGenesis shall pay for such inspections, except that in the event
there is any upward adjustment in aggregate royalties payable for any year shown
by such inspection of more than five percent (5%) of the amount paid, OGS shall
pay for such inspection.
4.9 TAXES. If at any time, any jurisdiction within the Territory requires OGS to
withhold income taxes or other taxes from the amounts paid NeoGenesis pursuant
to this Agreement and to pay the taxes for the account of NeoGenesis, OGS shall
make such withholding payments as required and subtract such withholding
payments from the payments set forth in this Agreement. OGS shall deliver to
NeoGenesis true copies of the receipts and/or returns covering all such
payments. To the extent that payments of withholding taxes made by OGS are based
upon financial information provided to OGS by NeoGenesis and, to the extent that
such information is incorrect or incomplete, NeoGenesis shall be liable for any
fine, assessment or penalty, or any deficiency, imposed by any taxing authority
in the Territory for any deficiency in the amount of any such withholding or the
failure to make such withholding payment. The parties will cooperate to
minimize, to the extent legally permissible, the tax liabilities related to this
Agreement. Notwithstanding the foregoing, such cooperation shall not cause any
adverse tax consequences to be incurred by either party which would not have
been incurred under the provisions of this Agreement, including this Section
4.9.
5. CONFIDENTIALITY
5.1 PUBLICITY. Except as is necessary to comply with applicable laws and
regulations or to enforce their respective rights under this Agreement, or to a
party's legal or financial advisors, and except as otherwise agreed to by the
parties in writing, the parties shall: (a) keep the material terms of this
Agreement confidential; (b) agree upon the text and the exact timing of an
initial public announcement relating to the transactions contemplated by this
Agreement as soon as practicable after the Effective Date (such agreement not to
be unreasonably withheld or delayed); and (c) agree on the text and the timing
of any subsequent public announcements regarding this Agreement or the
transactions contemplated herein. Where consent to disclosure has been
previously obtained, either party shall be free to make further disclosures of
such information in the same or substantially similar form without the need for
any further advance approval. If this Agreement is required to be filed by
either party with the Securities and Exchange Commission or an equivalent
foreign Regulatory Authority, such party shall not file this Agreement with the
SEC or such other Regulatory Authority without first notifying the other party
and seeking confidential treatment
* = CONFIDENTIAL TREATMENT REQUESTED: MATERIAL HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION.
17
for any provisions of this Agreement that the other party believes would
disclose trade secrets, confidential commercial or financial information that
would impair the value of the contractual rights represented by this Agreement
or provide detailed commercial and financial information to competitors or third
parties. Nothing in this Section 5.1 shall prohibit disclosure of the terms of
this Agreement in the event and to the extent such disclosure is required by the
SEC or such other Regulatory Authority in the event the SEC or such regulatory
Authority rejects or requests modifications of an application for confidential
treatment request made pursuant to this Section 5.1.
5.2 CONFIDENTIALITY. (a) Confidential Information of each party will be used by
the other party solely for the purposes permitted by this Agreement. All
Confidential Information will be received and held in confidence by the
receiving party, subject to the provisions of this Agreement. Each party
acknowledges that it will not obtain any rights of any sort in or to the
Confidential Information of the other party as a result of such disclosure and
that any such rights must be the subject of separate written agreement(s).
Either party may only disclose the general nature, but not the specific
financial terms or the fact that OGS is pursuing any Targets that are the
subject of this Agreement, of this Agreement without the prior consent of the
other party; PROVIDED that either party may provide a copy of this Agreement or
disclose the terms of this Agreement (i) to any finance provider in conjunction
with a financing transaction, if such finance provider agrees to keep this
Agreement confidential, (ii) to any legal or financial advisor of such party, or
(iii) in response to a subpoena or other validly issued administrative or
judicial process requesting disclosure of same; PROVIDED, the party that
receives such order or process provides prompt notice to the disclosing party
before making any disclosure and permits the disclosing party to oppose or
narrow such request for disclosure and supports any of disclosing party's
reasonable efforts to oppose such request (at disclosing party's expense) and
shall disclose the terms of this Agreement only in the event of a final judgment
or administrative order requiring such disclosure, and only to the extent
necessary to comply with such request.
(b) Each party will restrict disclosure of the other party's Confidential
Information to those of its directors, officers, employees, agents,
representatives, consultants, Affiliates and sublicensees to whom it is
necessary to disclose such Confidential Information in connection with the
purposes permitted under Section 5.2(a) and PROVIDED that any agents,
representatives, consultants and sublicensees are party to written agreements
that contain provisions consistent with the provisions of this Section 5.2 and
calculated to protect the confidentiality of the other party's Confidential
Information. Each party shall use reasonable efforts, including at least
efforts fully commensurate with those employed by the party for the protection
of its own Confidential Information, to protect the Confidential Information of
the other party.
(c) Either disclosing party may at any time notify the receiving party that
such receiving party must return to the disclosing party the disclosing party's
Confidential Information. Each party hereby agrees to, within thirty (30) days
of such notification: (i) return all documents and tangible items it or its
employees or agents have received or created pursuant to this Agreement
pertaining, referring or relating to the other party's Confidential Information;
and (ii) return or certify (in a writing attested to by a duly authorized
officer of such party) destruction of all copies, summaries, modifications or
adaptations that such party or its employees or agents have made from the
materials provided by the disclosing party.
(d) Nothing herein shall prevent a receiving party from disclosing all or
part of the Confidential Information as necessary pursuant to the lawful
requirement of a governmental agency (including, without limitation, the FDA and
other Regulatory Authorities involved in the approval or regulation of
pharmaceutical products) or when disclosure is required by operation of law;
PROVIDED that prior to any such disclosure to the extent permitted by law, the
receiving party shall use reasonable efforts to: (i) promptly notify the
disclosing party in writing of such requirement to disclose; and (ii) cooperate
fully with the disclosing party in protecting against any such disclosure or
obtaining a protective order.
6. REPRESENTATIONS AND WARRANTIES.
6.1 AUTHORIZATION; ENFORCEABILITY. Each of OGS and NeoGenesis represent and
warrant to the other that: (a) it is a corporation or limited liability company,
as applicable, duly organized and validly existing under the laws of its
jurisdiction of organization and has all requisite power and authority to enter
into this Agreement; (b) it is duly authorized by all requisite action to
execute, deliver and perform this Agreement and to consummate the transactions
* = CONFIDENTIAL TREATMENT REQUESTED: MATERIAL HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION.
18
contemplated hereby, and that the same do not conflict or cause a default with
respect to such party's obligations under any other agreement; (c) it has duly
executed and delivered this Agreement; and (d) (i) it is authorized to disclose
any and all Confidential Information made available to the other party pursuant
to this Agreement; and (ii) it shall not disclose to the other party any
information that is confidential or proprietary to itself or to a third party
unless such information is identified as Confidential Information.
6.2 NEOGENESIS PERFORMANCE. NeoGenesis hereby represents and warrants to OGS
that: (a) NeoGenesis shall perform the Program using qualified personnel and in
a good and workmanlike manner consistent with industry standards of companies
that are comparable to NeoGenesis performing similar activities under similar
circumstances; and (b) as of the Effective Date, there is no agreement known to
NeoGenesis to which it is a party and by which it is bound that would conflict
with or be breached by NeoGenesis granting OGS the license in Section 3.1.
6.2A ADDITIONAL NEOGENESIS WARRANTIES AND REPRESENTATIONS. NeoGenesis hereby
represents and warrants to OGS that as of the Effective Date NeoGenesis is
unaware, without independent investigation, of any patents or trade secret
rights owned or controlled by any third Person which would be infringed by the
NeoGenesis Patent Rights or the NeoGenesis Know-How or the performance by
NeoGenesis of the services contemplated by this Agreement.
6.3 DISCLAIMER. (a) EXCEPT FOR THE WARRANTIES EXPRESSLY MADE IN SECTIONS
6.1-6.2A, NeITHER PARTY MAKES ANY OTHER REPRESENTATION OR WARRANTY, EITHER
EXPRESS OR IMPLIED (WHETHER WRITTEN OR ORAL), INCLUDING, WITHOUT LIMITATION ANY
WARRANTY AGAINST INFRINGEMENT OF ANY THIRD PARTY PATENT OR OTHER INTELLECTUAL
PROPERTY RIGHTS, ANY WARRANTY OF MERCHANTABILITY OR ANY WARRANTY OF FITNESS FOR
A PARTICULAR PURPOSE WITH RESPECT TO THE NEOMORPH SCREENING LIBRARY, THE
NEOMORPH FOCUSED LIBRARIES, QSCD, THE PRELIMINARY COMPOUNDS, THE PRIMARY ACTIVE
COMPOUNDS, THE SELECTED COMPOUNDS, THE DESIGNATED COMPOUNDS, THE TARGETS, THE
LICENSED PRODUCTS, THE NEOGENESIS KNOW-HOW, THE OGS KNOW-HOW, THE SCOPE,
VALIDITY OR ENFORCEABILITY OF THE NEOGENESIS PATENT RIGHTS OR THE OGS PATENT
RIGHTS, OR SUCH PARTY'S OBLIGATIONS UNDER THIS AGREEMENT.
(b) THE REPRESENTATIONS AND WARRANTIES OF EACH OF NEOGENESIS AND OGS EXTEND
ONLY TO THE OTHER PARTY. NEITHER PARTY WILL BE LIABLE FOR ANY CLAIM OR DEMAND
AGAINST SUCH OTHER PARTY BY A THIRD PARTY, EXCEPT TO THE EXTENT PROVIDED IN
SECTIONS 7.2-7.3.
7. RISK ALLOCATION
7.1 LIMITATION OF LIABILITY. EXCEPT FOR INFRINGEMENT OF THE OTHER PARTY'S
INTELLECTUAL PROPERTY RIGHTS OR BREACH OF CONFIDENTIALITY OBLIGATIONS UNDER
SECTION 5 AND EXCEPT AS OTHERWISE PROVIDED IN SECTIONS 7.2-7.3 WITH RESPECT TO
THIRD PARTY CLAIMS, THE AGGREGATE LIABILITY OF EITHER PARTY FOR DIRECT DAMAGES
ARISING OUT OF THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE
LIMITED TO THE AGGREGATE AMOUNT PAID TO SUCH PARTY BY THE OTHER PARTY AS OF THE
DATE SUCH CLAIM IS FINALLY RESOLVED. EXCEPT FOR INFRINGEMENT OF THE OTHER
PARTY'S INTELLECTUAL PROPERTY RIGHTS OR BREACH OF CONFIDENTIALITY OBLIGATIONS
UNDER SECTION 5 AND EXCEPT AS OTHERWISE PROVIDED IN SECTIONS 7.2-7.3 WITH
RESPECT TO THIRD PARTY CLAIMS, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE
OTHER FOR LOST PROFITS OR SAVINGS OR FOR ANY INDIRECT, INCIDENTAL,
CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES IN CONNECTION WITH THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, HOWEVER CAUSED,
UNDER ANY THEORY OF LIABILITY.
7.2 INFRINGEMENT INDEMNIFICATION. (a) Subject to the provisions of Section 7.4,
NeoGenesis shall defend, indemnify and hold harmless OGS, its subsidiaries,
parent corporations, Affiliates, officers, directors, independent contractors,
partners, members, employees, agents, successors and assigns (each, in such
capacity an OGS INDEMNIFIED PARTY) from and against any claim, suit, demand,
loss, damage, expense (including reasonable
* = CONFIDENTIAL TREATMENT REQUESTED: MATERIAL HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION.
19
attorney's fees of indemnitee(s)) or liability (collectively, LOSSES) imposed
upon them by any third party and arising from or related to a third party claim
that (i) use of NeoGenesis Know-How or (ii) practice of the NeoGenesis Patent
Rights by OGS in accordance with the terms of this Agreement violates or
infringes the intellectual property rights of any third party. NeoGenesis shall
have no liability or obligation to OGS under this Section 7.2(a) in the event
and to the extent that the alleged infringement is caused by: (1) modifications,
alterations, combinations or enhancements of the Designated Compounds not
created by NeoGenesis, or (2) results from willful misconduct or negligent acts
or omissions of an OGS Indemnified Party.
(b) Subject to the provisions of Section 7.4, OGS shall defend, indemnify
and hold harmless NeoGenesis, its subsidiaries, parent corporations, Affiliates,
officers, directors, independent contractors, partners, shareholders, employees,
agents, successors and assigns (each, in such capacity a NEOGENESIS INDEMNIFIED
PARTY) from and against any Losses imposed upon them by any third party and
arising from or related to a third party claim that (i) the R&D Program or any
modifications, alterations, combinations or enhancements of the Designated
Compounds; (ii) the use of the OGS Know-How, (iii) the practice of the OGS
Patent Rights, (iv) the Designated Compound or any Licensed Product; or (vii)
the Manufacture, development, testing, Commercialization, use or other
disposition of any of the foregoing, violates or infringes the intellectual
property rights of any third party. OGS shall have no obligation or liability to
NeoGenesis under this Section 7.2(b) in the event and to the extent that the
alleged infringement (1) is covered by Section 7.2(a) or (2) results from
willful misconduct or negligent acts or omissions of a NeoGenesis Indemnified
Party.
7.3 OTHER CLAIMS. (a) Subject to the provisions of Section 7.4, NeoGenesis will
defend, indemnify and hold harmless each OGS Indemnified Parties from and
against any Losses imposed upon the OGS Indemnified Party(s) by any third party
arising from or related to: (i) any material breach of the NeoGenesis's
representations and warranties under this Agreement; or (ii) any negligence or
intentional misconduct by NeoGenesis (or its employees, agents or
representatives) or by an Affiliate, licensee, sublicensee or agent in
performing its obligations under this Agreement, including the performance of
the Program. The foregoing indemnification action shall not apply in the event
and to the extent that a court of competent jurisdiction determines that such
Losses arose as a result of any OGS Indemnified Party's negligence, intentional
misconduct or breach of this Agreement.
(b) Subject to the provisions of Section 7.4, OGS will defend, indemnify
and hold harmless each NeoGenesis Indemnified Party from and against any Losses
imposed upon the NeoGenesis Indemnified Party(s) by any third party arising from
or related to: (i) any material breach of OGS's representations and warranties
under this Agreement; (ii) any negligence or intentional misconduct by OGS (or
its employees, agents or representatives) or by an Affiliate, licensee,
sublicensee, distributor or agent of OGS in performing its obligations under
this Agreement, including the performance of the R&D Program; or (iii) the
labeling, packaging, package insert, other materials or promotional claims with
respect to any Licensed Product or the development, testing, Manufacturing,
Commercialization, use or other disposition of any Licensed Product by OGS or by
an Affiliate, licensee, sublicensee, distributor or agent of OGS. The foregoing
indemnification action shall not apply in the event and to the extent that a
court of competent jurisdiction determines that such Losses arose as a result of
any NeoGenesis Indemnified Party's negligence, intentional misconduct or breach
of this Agreement.
7.4 PROCEDURE. To receive the benefit of indemnification under Sections 7.2 or
7.3, the Indemnified Party must (a) promptly notify the party from whom
indemnification is sought (the INDEMNIFYING PARTY) in writing of a claim or
suit; PROVIDED, that failure to give such notice shall not relieve Indemnifying
Party of its indemnification obligations except where, and solely to the extent
that, such failure actually and materially prejudices the rights of Indemnifying
Party); (b) provide reasonable cooperation (at the Indemnifying Party's
expense); and (c) tender to the Indemnifying Party (and its insurer) full
authority to defend or settle the claim or suit; PROVIDED that no settlement
requiring any admission by the Indemnified Party or that imposes any obligation
on the Indemnified Party shall be made without the Indemnified Party's consent.
Neither party has any obligation to indemnify the other party in connection with
any settlement made without the Indemnifying Party's written consent. The
Indemnified Party has the right to participate at its own expense in the claim
or suit and in selecting counsel therefor. The Indemnified Party shall cooperate
with Indemnifying Party (and its insurer), as reasonably requested, at
Indemnifying Party's cost and expense.
* = CONFIDENTIAL TREATMENT REQUESTED: MATERIAL HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION.
20
8. TERM AND TERMINATION
8.1A PROGRAM TERM. This Agreement shall take effect as of the Effective Date and
shall remain in effect until the expiration date(s) specified in this Section
8.1, unless sooner terminated in accordance with Section 8.2. The Program will
remain in effect for a period of three (3) years from the Effective Date or such
longer period as is required for NeoGenesis to complete the Program in
accordance with Section 2.2(b) (the PROGRAM TERM), with an option by OGS to
renew for an additional one (1) year period on terms and conditions, including
level of support, that are mutually agreeable. OGS shall notify NeoGenesis
whether OGS wishes to negotiate to extend the Program for additional periods, no
later than ninety (90) days prior to termination of the initial Program Term.
8.1B ROYALTY TERM. If the license under Section 3.1 is exercised, such license
will remain in effect for the Royalty Term as specified in Section 4.5.
8.2 TERMINATION. (a) Either party may terminate the Program with thirty (30)
days notice to the other party if the other party fails to pay fees or patent
expenses due under the Agreement or commits a material breach unless the
nonpayment or breach is cured within the thirty (30) day notice period. In
addition, NeoGenesis may suspend work pursuant to the Program with notice to OGS
if OGS fails to pay NeoGenesis any amount due NeoGenesis under this Agreement.
(b) Following completion of the Program, either party may terminate the
license with sixty (60) days notice if the other commits a material breach
unless the breach is cured within the sixty (60)-day notice period; PROVIDED
that such notice and cure period shall be reduced to thirty (30) days in the
case of payment obligations.
(c) Either party shall have the right to terminate this Agreement with
thirty (30) days notice if a Force Majeure condition has prevented performance
by the other party for more than one hundred and twenty (120) consecutive days.
The parties may also terminate this Agreement at any time upon mutual written
agreement of the parties.
(d) OGS shall have the right to terminate this Agreement:
(i) if, on the anniversary of the Project Commencement Date, OGS
reasonably determines that the conduct of the Program is failing to produce
successful results in respect of any of the Targets or that the scientific
rationale for continuing with the Program can no longer be sustained, then OGS
shall be entitled to terminate this Agreement upon the giving of thirty (30)
days written notice; or
(ii) on each anniversary of the Effective Date with ninety (90) days
notice, if OGS reasonably determines that the conduct of the Program has
resulted in a minimal number of Compounds being identified as potential
candidates for drug development during the preceding twelve month period.
(e) NeoGenesis shall have the right to terminate this Agreement if OGS
fails to make the equity investment contemplated by Section 4.1 within thirty
(30) days following the Effective Date.
8.3 EFFECT OF TERMINATION. (a) Upon termination (including expiration) of this
Agreement: (i) NeoGenesis will terminate all tasks for the Program in progress
at the date of termination in an orderly manner, as soon as practical and in
accordance with a schedule agreed to by OGS and NeoGenesis; (ii) NeoGenesis
shall deliver to OGS all materials developed through the termination of the
Program in accordance with the schedule agreed to by the parties pursuant to
Section 8.3(a); (iii) OGS shall pay NeoGenesis any monies due and owing
NeoGenesis up to the time of termination, for services actually performed
(including all work-in process (if any) pursuant to the last sentence of Item 7
or the last sentence of Item 8 of ATTACHMENT A); and (iv) within thirty (30)
days following termination (including expiration) of this Agreement, NeoGenesis
shall deliver to OGS a reasonably-detailed written report describing the results
of the research performed up to the date of such termination. In addition, if
OGS terminates this Agreement in accordance with Section 8.2(d) at any time
prior to the second anniversary of the Effective Date, NeoGenesis shall have the
right to repurchase from OGS within three (3) months following such termination,
all shares of NeoGenesis Series E Preferred Stock purchased by OGS (as
contemplated by Section 4.1), such repurchase to be at a price per share equal
to $5.97, as proportionately adjusted in the event that NeoGenesis effects a
stock split, stock combination or stock dividend. In addition, if NeoGenesis
terminates this Agreement pursuant to Section
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8.2(e) or Section 9.6, NeoGenesis shall refund to OGS any funding received prior
to the date of such termination except to the extent such funding was used to
fund services actually performed prior to such termination.
(b) Upon termination (including expiration) of this Agreement each party
shall return to the other party or certify in writing to the other party that it
has destroyed all documents and other tangible items it or its employees or
agents have received or created pertaining, referring or relating to the
Confidential Information of the other party.
(c) The licenses granted by NeoGenesis under Section 3.1 shall survive any
expiration or termination of the Program or this Agreement with respect to any
Designated Compound or Licensed Product for which the applicable service fees
and milestone fees and royalties have been paid (when due in accordance with the
terms of this Agreement) and OGS shall continue to have the right to develop,
have developed, make, have made, use, distribute, offer for sale, import, export
and sell Licensed Products relating to such Designated Compounds; PROVIDED that
OGS continues to pay NeoGenesis milestone fees and royalties as required by
Sections 4.2 and 4.3 and complies with Sections 4.4-4.7. The licenses granted
under Section 3.1 shall not survive termination or expiration with respect to
Designated Compounds or Licensed Products for which OGS has not made payment in
accordance with this Agreement and shall immediately terminate with respect to
any Designated Compound or Licensed Product for which the applicable service
fees and milestone fees are not timely paid (should such payment become due
after termination of this Agreement or for any Licensed Product for which OGS
fails to pay NeoGenesis milestone fees and royalties as required by Sections 4.2
and 4.3 or fails to comply with Sections 4.4-4.7. In the event the license
granted to OGS under Section 3.1 terminates for any reason, each of OGS's
sublicensees at such time shall continue to have the rights and license set
forth in their sublicense agreements, PROVIDED such sublicensee agrees in
writing that NeoGenesis is entitled to enforce all relevant provisions directly
against such sublicensee.
(d) Except as otherwise provided herein, neither party shall be liable to
the other party for any compensation or damages by reason of termination of this
Agreement in accordance with this Section 8.
(e) Nothing herein shall be construed to release either party of any
obligation which matured prior to the effective date of any termination. OGS's
liability for any charges, payments or expenses due to NeoGenesis that accrued
prior to the termination date shall not be extinguished by termination, and such
amounts (if not otherwise due on an earlier date) shall be immediately due and
payable on the termination date.
8.4 SURVIVAL. Sections 1, 2.6, 3.2, 3.3 and 4-9 shall survive any termination or
expiration of this Agreement.
9. GENERAL PROVISIONS.
9.1 ISSUE RESOLUTION. (a) The parties shall use their best efforts to resolve
any controversy or dispute that arises under or relates to this Agreement
through good faith discussions. The parties shall initiate such discussions
using the following procedure. Either party shall notify the other party of the
nature of the controversy or dispute, providing sufficient detail to permit the
other party to understand same (a DISPUTE NOTICE). The representatives of the
parties shall meet within 30 days after the date that the non-sending party
receives the Dispute Notice to attempt to reach an agreement about the nature of
the dispute and a resolution of the dispute. If they are unable to resolve the
dispute within 60 days after their meeting, and do not agree to extend the time
period for resolving the dispute, or if the terms and conditions of the
resolution or settlement of the dispute are breached, the dispute shall be
resolved by arbitration pursuant to the provisions of Section 9.1(b). Pending
resolution of any dispute covered by this Section 9.1, both parties will
continue their performance under this Agreement including, without limitation,
the payment of all amounts due to the other party that are not in dispute.
(b) Except in the case of a breach of Section 3.2 or Section 5.2, any
claim, dispute, or controversy arising out of or relating to this Agreement that
is not resolved in accordance with the provisions of Section 9.1(a) within the
time period specified in Section 9.1(a) will be submitted by the parties to
arbitration in accordance with the terms of Section 9.1(b)-(d); PROVIDED, that
actions by either party seeking equitable or declaratory relief may be brought
in court without resort to any of the provisions of Section 9.1(b)-(e). This
agreement to arbitrate shall continue in full force and effect despite the
expiration, rescission or termination of this Agreement.
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(c) Any arbitration shall be conducted pursuant to the Commercial
Arbitration Rules of the International Chamber of Commerce (ICC) under the rules
then in effect for the ICC, as such rules may be modified by this Agreement or
by agreement of the parties. Any such arbitration shall be conducted in
New York
City by one arbitrator. Each party irrevocably and unconditionally (i) consents
to the jurisdiction of any such proceeding and waives any objection that it may
have to personal jurisdiction or the laying of venue of any such proceeding; and
(ii) knowingly and voluntarily waives its rights to have disputes tried and
adjudicated by a judge and jury except as otherwise expressly provided herein.
The parties will cooperate with each other in causing the arbitration to be held
in as efficient and expeditious a manner as practicable. The parties will
attempt to agree upon a mutually acceptable arbitrator within 30 days of receipt
of the notice of intent to arbitrate. If the parties are unable to agree upon a
single arbitrator within such 30-day period or any extension of time which is
mutually agreed upon, three (3) arbitrators shall be used, one selected by each
party within ten (10) days after the conclusion of the 30-day period and a third
selected by the first two within ten (10) days thereafter. Unless the parties
agree otherwise, they shall be limited in their discovery to directly relevant
documents. Responses or objections to a document request shall be served twenty
(20) days after receipt of the request. The arbitrator(s) shall resolve any
discovery disputes. It is understood that the parties may (but are not required
to) submit disputes concerning any breach of Section 3.2 or Section 5.2 to
arbitration in accordance with this Section 9.1. Nothing herein shall prevent
the parties from settling any dispute by mutual agreement at any time.
(d) Notwithstanding any provision of this Section 9.1 to the contrary, in
the event of a dispute between the parties relating to matters that are the
subject of section 3.3, the arbitration shall be performed by a single
arbitrator selected by the parties in accordance with Section 9.1(c) or by the
ICC in the event that the parties are unable to select a mutually acceptable
arbitrator and such arbitrator shall be a lawyer specialized in patent law and
admitted to practice in
New York who is a partner or full member of a law firm
which has not been retained by or performed services for either party during the
three (3) year period prior to the date of alternative dispute resolution
initiation.
(e) The arbitrator(s) shall apply the substantive laws of
New York when
construing this Agreement and attempting to resolve any dispute relating to the
transactions contemplated by this Agreement, without regard for any choice or
conflict of laws rule or principle that would result in the application of the
substantive law of any other jurisdiction. The arbitration shall be of each
party's individual claims only, and no claim of any other party shall be subject
to arbitration in such proceeding. Except as otherwise required by law, the
parties and the arbitrator(s) shall maintain as confidential all information or
documents obtained during the arbitration process, including the resolution of
the dispute.
(f) The arbitrator(s) shall not have the authority to award exemplary or
punitive damages, and the parties expressly waive any claimed right to such
damages. The arbitrator(s) shall have the authority to award actual money
damages (with interest on unpaid amounts from the date due) and may grant
equitable relief as is just and provided by the ICC Rules, in each case except
as specifically provided to the contrary herein The costs and expenses of the
arbitration, but not the costs and expenses of the parties, shall be shared
equally by the parties. Any award rendered by the arbitrator(s) shall be final
and binding upon the parties. Judgment upon the award may be entered in any
court of competent jurisdiction. If a party fails to proceed with arbitration,
unsuccessfully challenges the arbitration award, or fails to comply with the
arbitration award, the other party is entitled to costs, including reasonable
attorneys' fees, for having to compel arbitration or defend or enforce the
award.
9.2 GOVERNING LAW. This Agreement shall be governed and construed in accordance
with the internal, substantive laws of the State of
New York (except for Section
5-1401 of the
New York General Obligations Law) to the exclusion of any choice
or conflict of laws rule or provision that would result in the application of
the substantive law of any other jurisdiction. Notwithstanding the foregoing,
the parties (and the arbitrators) shall use United States (Federal) patent and
copyright laws for purposes of governing and construing Sections 3.2-3.4 of this
Agreement. The United Nations Convention on Contracts for the International Sale
of Goods shall not apply to the transactions contemplated by this Agreement.
9.3 AMENDMENT AND WAIVER. No provision of or right under this Agreement shall be
deemed to have been waived by any act or acquiescence on the part of either
party, its agents or employees, but only by an instrument in writing signed by
an authorized officer of each party. No waiver by either party of any breach of
this Agreement by the
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other party shall be effective as to any other breach, whether of the same or
any other term or condition and whether occurring before or after the date of
such waiver.
9.4 INDEPENDENT CONTRACTORS. Each party represents that it is acting on its own
behalf as an independent contractor and is not acting as an agent for or on
behalf of any third party. This Agreement and the relations hereby established
by and between OGS and NeoGenesis do not constitute a partnership, joint
venture, franchise, agency or contract of employment. Neither party is granted,
and neither party shall exercise, the right or authority to assume or create any
obligation or responsibility on behalf of or in the name of the other party or
its Affiliates. NeoGenesis shall be solely responsible for compensating all its
personnel and for payment of all related FICA, workers' compensation,
unemployment and withholding taxes. OGS shall not provide NeoGenesis personnel
with any benefits, including but not limited to compensation for insurance
premiums, paid sick leave or retirement benefits.
9.5 ASSIGNMENT. Neither party may assign this Agreement or any of its rights and
obligations under this Agreement without the prior written consent of the other
party; PROVIDED, that either party may assign this Agreement to (a) any Person
to which such party transfers all or substantially all of its assets or with
which such party is consolidated or merged; (b) any Person that owns a majority
of the voting stock of such party; or (c) a single Person of which such party
owns a majority of the voting stock; PROVIDED, FURTHER, that in each instance
the assignee Person expressly assumes all obligations imposed on the assigning
party by this Agreement in writing and the other party is notified in advance of
such assignment and PROVIDED FURTHER that in the event that during the Program
Term: (i) the ownership or control of more than fifty percent (50%) of the
voting or income interest in NeoGenesis is acquired by another pharmaceutical
company that is reasonably regarded as a competitor of OGS, such determination
being made with reference to the products that such pharmaceutical company then
markets or for which it has made regulatory submissions with the FDA or an
equivalent Regulatory Authority in another Major Country or for which it has
publicly announced its intention to do either of the foregoing, or (ii)
NeoGenesis merges with another such pharmaceutical company, NeoGenesis shall
promptly notify OGS of the occurrence of such an event and either party shall
have the right, but not the obligation, to terminate this Agreement by serving
notice in accordance with the following provisions: (x) forthwith by notice in
writing in the case of OGS; and (y) upon twelve (12) months notice in writing in
the case of NeoGenesis (or upon expiration of the Program Term if the Program
Term sooner expires).
9.6 SUCCESSORS AND ASSIGNS. This Agreement shall bind and inure to the benefit
of the parties hereto and their respective successors and permitted assigns.
9.7 NOTICES. Unless otherwise provided herein, any notice, report, payment or
document to be given by one party to the other shall be in writing and shall be
deemed given when delivered personally or mailed by certified or registered
mail, postage prepaid (such mailed notice to be effective on the date which is
five (5) business days after the date of mailing), or sent by nationally
recognized overnight courier (such notice sent by courier to be effective one
(1) business day after it is deposited with such courier), or sent by telefax
(such notice sent by telefax to be effective when sent (as evidenced by a
successful transmission receipt or equivalent), if confirmed by certified or
registered mail or overnight courier as aforesaid) to the address set forth on
the signature page to this Agreement or to such other place as any party may
designate as to itself by written notice to the other party.
9.8 SEVERABILITY. In the event any provision of this Agreement shall for any
reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other term or
provision hereof. The parties agree that they will negotiate in good faith or
will permit a court or arbitrator to replace any provision hereof so held
invalid, illegal or unenforceable with a valid provision which is as similar as
possible in substance to the invalid, illegal or unenforceable provision.
9.9 CAPTIONS. Captions of the sections and subsections of this Agreement are for
reference purposes only and do not constitute terms or conditions of this
Agreement and shall not limit or affect the meaning or construction of the terms
and conditions hereof.
9.10 WORD MEANINGS. Words such as HEREIN, HEREOF and HEREUNDER refer to this
Agreement as a whole and not merely to a section or paragraph in which such
words appear, unless the context otherwise requires. The singular
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shall include the plural, and each masculine, feminine and neuter reference
shall include and refer also to the others, unless the context otherwise
requires.
9.11 ENTIRE AGREEMENT. The terms and provisions contained in this Agreement
(including the Attachments) constitute the entire understanding of the parties
with respect to the transactions and matters contemplated hereby and supersede
all previous communications, representations, agreements and understandings
relating to the subject matter hereof. No representations, inducements, promises
or agreements, whether oral or otherwise, between the parties not contained in
this Agreement shall be of any force or effect. No agreement or understanding
extending this Agreement or varying its terms (including any inconsistent terms
in any purchase order, acknowledgment or similar form) shall be binding upon
either party unless it is in a writing specifically referring to this Agreement
and signed by a duly authorized representative of the applicable party.
9.12 RULES OF CONSTRUCTION. The parties agree that they have participated
equally in the formation of this Agreement and that the language and terms of
this Agreement shall not be construed against either party by reason of the
extent to which such party or its professional advisors participated in the
preparation of this Agreement.
9.13 COUNTERPARTS. This Agreement may be executed in multiple counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument. In making proof of this Agreement, it shall not be
necessary to produce or account for more than one such counterpart.
9.14 FORCE MAJEURE. Except as otherwise provided in this Agreement, in the event
that a delay or failure of a party to comply with any obligation, other than a
payment obligation, created by this Agreement is caused by a Force Majeure
condition, that obligation shall be suspended during the continuance of the
Force Majeure condition.
9.15 FURTHER ASSURANCES. Each party covenants and agrees that, subsequent to the
execution and delivery of this Agreement and without any additional
consideration, it will execute and deliver any further legal instruments and
perform any acts which are or may become reasonably necessary to effectuate the
purposes of this Agreement.
IN WITNESS WHEREOF the parties have caused this Agreement to be executed on
their behalf by their duly authorized representatives intending it to take
effect as an instrument under seal as of the Effective Date.
NeoGenesis, INC. OXFORD GLYCOSCIENCES (UK) LIMITED
BY: /s/ XXXXXX XXXXXX BY: /s/ XXXXXXX X. XXXXXX
-------------------------------------- --------------------------------------
Xxxxxx Xxxxxx, President and CSO Xxxxxxx X. Xxxxxx, CEO
NOTICE ADDRESS: NOTICE ADDRESS:
NeoGenesis, Inc. Oxford GlycoSciences (UK) Limited
000 Xxxxxxxx Xxxxx The Forum, 00 Xxxxxx Xxxx
Xxxxxxxxx, XX 00000, XXX Xxxxxxxx, Xxxx XX00 0XX, XX
Phone: 000.000.0000 Phone: xx00 (0)0000 000000
Fax: 000.000.0000 Fax: xx00 (0)0000 000000
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SEPARATELY WITH THE COMMISSION.
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