THE SYMBOL '**' IS USED THROUGHOUT THIS EXHIBIT TO INDICATE THAT A PORTION OF
THE EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION
EXHIBIT 10.3
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FEASIBILITY AGREEMENT
This Agreement is by and between DepoMed, Inc., 0000 X Xxxxx Xxxxx, Xxxxxx Xxxx,
XX 00000 (DepoMed), and GalaGen Inc., 0000 Xxxxxxxxx Xxxxxx Xxxxx, Xxxxx Xxxxx,
Xxxxxxxxx 00000-0000 (GalaGen).
Whereas, both parties have entered into a Mutual Nondisclosure Agreement dated
April 3, 1995;
The parties hereto agree as follows:
1. GalaGen will provide a quantity of their [**]to DepoMed for the purpose
of certain feasibility studies to be conducted by DepoMed and GalaGen according
to the Protocol and Research Plan (the "Studies") in Schedule A, and not for any
other purposes.
2. The parties will perform such Studies and provide results of such Studies
to each other.
3. Results of such Studies will be kept confidential from any third party by
DepoMed and GalaGen in accordance with the terms and conditions of the Mutual
Nondisclosure Agreement. However, the parties may disclose the results from the
Studies to potential development and commercialization partners and investors
bound by similar terms of confidentiality as the Mutual Nondisclosure Agreement.
4. DepoMed grants to GalaGen the right to use its proprietary technology and
know-how for testing purposes during the term of this Agreement and any
extensions. Except as provided in Section 5.(c) below, rights to use DepoMed's
proprietary technology and know-how do not extend beyond the term of this
Agreement.
5.(a) Rights to any invention invented by either party (including persons
obligated to assign inventions to either party) and resulting from such
Studies shall be assigned to DepoMed if pertaining solely to the drug delivery
technology of DepoMed or to GalaGen if pertaining solely to the [**]
technology of GalaGen. Any invention involving the use of DepoMed technology
to deliver an [**] shall be a "Joint Invention" assigned to DepoMed. None of
the present patent rights of either party shall be affected by this Agreement.
Neither Party shall receive any rights to use or
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license any Products or technology of the other Party other than to perform the
Studies.
5.(b) Should the results of this Agreement lead to a mutual decision to conduct
additional product development studies between the parties, then the parties
shall enter into an appropriate agreement that includes applicable intellectual
property and an exclusive option for a commercial license. The terms of this
option to license and commercial license shall include, but not be limited to,
the following:
5(b)i Payments: Reasonable costs mutually agreed prior to the start of
the Studies and related directly to the product development and
incurred by DepoMed will be paid by GalaGen on a reimbursement
basis. The Parties shall mutually agree to appropriate milestone
payments made by GalaGen to DepoMed.
5(b)ii Field: FIELD shall be the use or delivery of any [**]
formulated with DepoMed technology delivered orally in humans and
non-human animals.
5(b)iii Territory: TERRITORY shall be all countries of the world.
5(b)iv Rights: RIGHTS shall be exclusive and royalty bearing.
5.(c) Should the results of this Agreement lead to a decision by either party
not to conduct additional product development studies between the parties,
DepoMed agrees to offer to GalaGen an exclusive license of any patent or
technology based on a Joint Invention under commercially reasonable terms to be
negotiated in good faith. Such offer shall be held open for a period of one (1)
year from the effective date of this Agreement. Such license shall provide that
if during the two (2) year period following the effective date of the license,
GalaGen has not taken reasonable steps to commercially develop a product based
on such Joint Invention such license shall be renegotiated in good faith between
the parties.
6. Neither party may, without the prior written consent of the other, file
or prosecute any patent application that effectively discloses Proprietary
Information received from the other, provided such consent shall not be
unreasonably withheld.
7. GalaGen and DepoMed agree to use diligent efforts to complete the
research activities outlined in Schedule A.
8. This Agreement shall be binding upon and inure to the benefit of the
successors and assignees of the parties hereto, but neither of the parties
hereto shall assign this Agreement without the prior written consent of the
other.
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9. This Agreement may be terminated at any time by either party with written
notice to the other party and unless so terminated shall remain in effect for a
period of two (2) years from the date hereof. The obligations regarding use of
transferred material and confidentiality shall survive termination of this
Agreement for the same period defined in the Mutual Nondisclosure Agreement.
10. No modification or waiver of any of the provisions of this Agreement
shall be valid unless in writing and signed by both parties hereto.
11. Each party receiving information under this Agreement or the Mutual
Nondisclosure Agreement agrees not to analyze or have a third party analyze any
tangible products or materials including Proprietary Information except for the
studies set forth in Schedule A, and all results of any such analysis shall be
considered results of the studies for the purposes of this Agreement and subject
to the obligations of Section 3 above.
12. This Agreement embodies the entire understanding between the parties and
supersedes all previous Agreements, commitments, and writings with respect
thereto, excepting the Mutual Nondisclosure Agreement.
13. The effective date of this Agreement is the date of the last signature
below.
AGREED
for DepoMed:
/s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx, Ph.D.
President & CEO
13 May 1996
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(Date)
for GalaGen:
/s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx, Ph.D.
Vice President, Research and Development
11 May 1996
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(Date)
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SCHEDULE A
PROTOCOL AND RESEARCH PLAN
[**]
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[**]
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ii
[**]
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[**]
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Notes: [**]
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