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EXHIBIT 10.22
CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
COOPERATION AGREEMENT
between DYAX CORP. One Xxxxxxx Square
Building 000, 0xx Xxxxx Xxxxxxxxx,
XX 00000 XXX
(hereinafter referred to as DYAX)
and NOVO NORDISK A/S Novo Alle XX-0000
Xxxxxxxxx Xxxxxxx
(hereinafter referred to as NOVO
NORDISK)
WITNESSETH:
WHEREAS NOVO NORDISK is one of the world's largest
manufacturers of insulin and possesses valuable
know-how and expertise relating to analysis and
purification of proteins; and
WHEREAS DYAX is a biotechnology and separation products
company that possesses valuable know-how and
expertise relating to phage display and
chromatography technology;
WHEREAS NOVO NORDISK and DYAX wish to i) cooperate in the
discovery and development of ***************
systems (as further defined below), ii) to provide
for NOVO NORDISK to have certain exclusive
worldwide rights and licenses to the discoveries
and development resulting from the cooperation,
and iii) to provide for DYAX to receive
appropriate payment for its contribution to such
discovery and development;
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CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
NOW THEREFORE in consideration of the foregoing and of the mutual promises and
covenants contained herein NOVO NORDISK and DYAX agree as follows:
1 DEFINITIONS
1.1 The term "Affiliate" of a Party shall mean any person,
corporation, firm, partnership or other entity which directly
or indirectly controls, is controlled by or is under common
control of either Party. For the purposes of this definition
only, "control" shall mean the power to direct or cause the
direction of the management and the policies of an entity,
whether through the ownership of a majority of the outstanding
voting securities or by contract or otherwise.
1.2 The term "controlled" shall mean possession of the ability to
grant licenses or sublicenses without violating the terms of
any agreement or other arrangement with, or the rights of, any
third party.
1.3 The term "DYAX Know-how" shall mean all proprietary know-how,
technology, biological or chemical materials, discoveries,
inventions, patent rights, trade secrets, formulated
procedures and results owned or controlled by DYAX.
1.4 The term "Effective Date" shall mean the date of the last
party's signature hereto.
1.5 The term "*************** Site" shall mean ***************.
1.6 The term "Field" shall mean development of ***************
Systems including Ligands directed against a given
*************** for use ***************.
1.7 The term "Ligand" shall mean any *************** binding to
the *************** or *************** Sequence.
1.8 The term "*************** Sequence" shall mean the
***************.
1.9 The term "NOVO NORDISK know-how", shall mean all proprietary
know-how, technology, biological or chemical materials,
discoveries, inventions, patent rights, trade secrets,
formulated procedures and results owned or controlled by NOVO
NORDISK.
1.10 The term "Phage Display Technology" shall mean the DYAX
Know-How which relates to the display of genetic
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AND EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
diversity on the bacteriophage, and DYAX's associated
patent rights.
1.11 "Product" shall mean any therapeutic product, in which the
discovery or development involved the use of a ***************
System.
1.12 The term *************** shall mean *************** which is
part of the Project hereunder, and as further specified in
Exhibit A which Exhibit is an integral part of this Agreement
and which Exhibit shall be updated on a regular basis.
1.13 "*************** Systems" shall mean each system comprising a
*************** and Ligand for which NOVO NORDISK has made the
transfer fee set forth in Section 4.2
2 SCOPE OF AGREEMENT
2.1 OBJECTIVES
The objectives of this Agreement are to cooperate in the Field
in order to enable the parties to use the results arising
therefrom as further described below.
2.2 DESCRIPTION OF THE COOPERATION
The Cooperation shall consist of a *************** program of
discovery and development in the Field sponsored by NOVO
NORDISK and conducted by NOVO NORDISK and DYAX (the Project).
The Project shall during the term of this Agreement and for a
period of *************** after termination hereof be the
exclusive effort of DYAX for work with ***************. NOVO
NORDISK shall be free to work in the Field with third parties
provided, however, that nothing herein grants any right to
NOVO NORDISK under DYAX's Phage Display Technology.
The Project shall be conducted in accordance with the Project
program developed by the parties, the current version of which
is attached hereto as Exhibit A. The parties will from time to
time review, redesign and/or redirect the Project program in
accordance with the parties' discussions and the progress and
results of the cooperation.
DYAX will disclose DYAX Know-how and NOVO NORDISK will
disclose NOVO NORDISK Know-how only to the extent it is
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CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
necessary for the work to be carried out under the Project
Program. The parties shall only use materials and samples
supplied by the other party and the DYAX Know-how and the NOVO
NORDISK know-how as provided for in this Agreement.
2.3 FUNDING AND PAYMENT
NOVO NORDISK shall fund DYAX researchers equivalent to
*************** to conduct the *************** Project program
covered by this Agreement. *************** funded by NOVO
NORDISK shall be subject to review and approval by NOVO
NORDISK in connection with the quarterly meetings pursuant to
Section 2.4. The *************** will be funded by NOVO
NORDISK at a rate of USD *************** per year (the
*************** rate) payable in *************** installments
of USD ***************.
Payment by NOVO NORDISK to DYAX for the first ***************
of the Project program shall be made by NOVO NORDISK to DYAX
***************. Thereafter payments shall be made by NOVO
NORDISK to DYAX ***************. The *************** rate
shall cover ***************.
2.4 TIMINGS, MINUTES OF MEETING AND REPORTS
Work on the stages stated in Exhibit A will be performed
continuously but not necessarily in the sequence stated.
Meetings will be held between the parties no less than every
*************** and the locations will alternate between
Copenhagen and Cambridge, MA, or as otherwise mutually agreed
upon between the parties. The representatives of each party
present during the meetings are responsible for ensuring that
decisions taken are in compliance with the policy of their
respective party and that except as otherwise explicitly
stated all formal approvals or authorizations which may be
required under the decision making procedures of each of the
parties have been obtained.
After the each meeting held, NOVO NORDISK will draw up written
minutes, such written minutes to be signed by all
representatives present and participating in the meeting in
question. The minutes must be issued within *************** of
each meeting.
Each party shall bear its own costs in connection with all
meetings held, including its own travel and lodging expenses.
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CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
*************** shall have the casting vote in the event of
disagreement between the parties relating to the conduct of
the Project.
DYAX will provide NOVO NORDISK on a current basis with
reasonably detailed written reports on the result and status
of its discovery and development work and no later than
*************** after the expiry of this Agreement shall DYAX
to NOVO NORDISK provide a written report covering the results
of the Project program and all activities carried out
hereunder. The report shall be the property of NOVO NORDISK.
2.5 RESPONSIBILITIES OF THE PARTIES
NOVO NORDISK undertakes to:
- ***************
- ***************
DYAX undertakes to:
- ***************
- ***************.
3 INTELLECTUAL PROPERTY RIGHTS
DYAX shall remain the sole owner of all DYAX Know-how possessed by DYAX prior
to entering into this Cooperation Agreement and shall own all Ligands and
Phage Display Technology resulting from this Agreement which are proprietary
to DYAX.
NOVO NORDISK shall remain the sole owner of all NOVO NORDISK Know-how
possessed by NOVO NORDISK prior to entering into this Cooperation Agreement
and shall own all *************** and *************** Sites resulting from
this Agreement and which are proprietary to NOVO NORDISK.
Except as set forth above NOVO NORDISK and DYAX *************** of any and all
inventions whether patentable *************** by the parties during the
Project Program under this Agreement. *************** is hereby granted the
first right to decide if and how to file and where to ***************. In the
event *************** decides against such a filing, *************** shall
have the right to decide on such filing. The parties will mutually agree how
to defend such *************** and how to share the costs relating thereto.
4 EXCLUSIVE LICENSE, PAYMENTS AND LIGAND SUPPLY
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AND EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
4.1 Subject to the payment and other obligations herein, DYAX
hereby grant to NOVO NORDISK an exclusive, unrestricted,
perpetual worldwide right and license, with the right to grant
sublicenses to Affiliates, under any DYAX Know-How and patent
rights to make, have made, use and sell the ***************
Systems in the Field and to make, have made, use and sell
Products. In the event that NOVO NORDISK desire to utilize any
*************** System outside the Field (e.g.
***************), the parties shall negotiate in good faith
the terms of such license extension.
4.2 Upon the transfer of each Ligand from DYAX to NOVO NORDISK in
accordance with the Project, NOVO NORDISK shall have
*************** to evaluate the Ligand and determine whether
it wishes an exclusive license to a *************** System
which includes such Ligand pursuant to Section 4.1 including
improvements thereof. DYAX undertakes to transfer to NOVO
NORDISK for NOVO NORDISK's evaluation all Ligands developed
under the Project. If NOVO NORDISK so wishes to be granted
such license, NOVO NORDISK shall pay to DYAX the sum of
*************** as a license fee for each such ***************
System prior to expiration of the relevant ***************
period. There shall be no obligation or restriction as to the
number of *************** Systems licensed, if any, by NOVO
NORDISK.
4.3 As additional consideration for the rights granted by DYAX
hereunder, NOVO NORDISK agrees to make the following
*************** to DYAX for each Product of NOVO NORDISK or
its sublicensees, payable within *************** of the
achievement of each ***************:
(a) For the first ***************, or ***************,
for each Product, whichever comes earlier: The sum of
***************;
(b) For the initiation of *************** or its
*************** for each Product: The sum of
***************;
(c) For the filing of *************** or its
*************** for each Product: The Sum of
***************; and
(d) For the *************** of each Product: The sum of
***************.
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CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
4.4 NOVO NORDISK agrees that during the term of this Agreement,
DYAX shall have the first right to supply NOVO NORDISK with
its requirements for Ligand for use in *************** Systems
at a cost equal to ***************. (The parties will
negotiate in good faith more detailed terms of such agreement
when appropriate.
5 CONFIDENTIALITY
The parties have entered into a Secrecy Agreement dated September 6, 1996,
(including amendment thereof of October 28, 1996) which Secrecy Agreement
shall still be valid.
In addition to the Secrecy Agreement NOVO NORDISK and DYAX agree that they
will exert diligent efforts to ensure their employees, agents, and consultants
will not disclose or publish any proprietary or confidential technical or
business information or any proprietary biological or chemical materials
(collectively hereinafter referred to as "Information") transmitted to one
another for use in the performance of this Agreement. The confidentiality
obligations herein shall not apply to:
i) Information, that at the time of disclosure, is in the public domain;
or
ii) Information, that after disclosure, becomes available to the public or
is lawfully made available to DYAX or NOVO NORDISK by a third party
without restrictions as to disclosure; or
iii) Information that NOVO NORDISK and DYAX mutually agree in writing to
release from the terms of this Agreement; or
iv) Information required to be disclosed by order of a court or other
governmental body after consultation with the party who owns the
Information.
NOVO NORDISK and DYAX will not publicise the existence of this Agreement in
any way without the prior written consent of the other subject to the
disclosure requirements of applicable law and regulations. In the event that
either party wishes to make an announcement concerning this Agreement, that
party will seek the consent of the other party. The terms of any such
announcement shall be agreed in good faith.
6 REPRESENTATIONS AND WARRANTIES
6.1 REPRESENTATIONS AND WARRANTIES OF DYAX
Corporate Power:
DYAX is duly organized and validly existing under the
laws of Delaware and has full corporate power and
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authority to enter into this Agreement and to carry out
the provisions hereof.
Due authorization:
DYAX is duly authorized to execute and deliver this Agreement
and to perform its obligations hereunder. The person executing
this Agreement on DYAX' behalf has been duly authorized to do
so by all requisite, corporate action.
Binding agreement - no conflicts:
This Agreement is a legal and valid obligation binding upon
DYAX and enforceable in accordance with its terms. The
execution, delivery and performance of this Agreement by DYAX
does not conflict with any agreement, instrument or
understanding, oral or written, to which it is a party or by
which it may be bound, nor violate any material law or
regulation of any court, governmental body or administrative
or other agency having jurisdiction over it. DYAX is not a
party to any contract the terms of which would conflict with
the terms of this Agreement or under which a default or
violation would arise as a result of the execution, entering
into or performance of this Agreement. DYAX has not granted
any third party any rights which would conflict with the
rights granted to NOVO NORDISK hereunder.
Patents and other proprietary rights:
i) DYAX owns or has the right to use free and clear
of all liens, claims and restrictions all patents,
patent applications, trade marks, service marks,
trade names, inventions, trade secrets,
copyrights, licenses and rights, with respect to
the foregoing, used by DYAX for the transactions
proposed to be conducted by it under this
Agreement.
ii) DYAX has not granted any license or right to use its
proprietary information or intellectual property
related to the matters covered by this Agreement and
will not grant any license or rights inconsistent
with NOVO NORDISK's rights hereunder.
6.2 REPRESENTATIONS AND WARRANTIES OF NOVO NORDISK
Corporate Power:
NOVO NORDISK is duly organized and validly existing under the
laws of Denmark and has full corporate power and authority to
enter into this Agreement and to carry out the provisions
hereof.
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CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
Due authorization:
NOVO NORDISK is duly authorized to execute and deliver this
Agreement and to perform its obligations hereunder. The person
executing this Agreement on NOVO NORDISK's behalf has been
duly authorized to do so by all requisite, corporate action.
Binding Agreement-no conflicts:
This Agreement is a legal and valid obligation binding upon
NOVO NORDISK and enforceable in accordance with its terms. The
execution, delivery and performance of this Agreement by NOVO
NORDISK does not conflict with any agreement, instrument or
understanding, oral or written, to which it is a party or by
which it may be bound, nor violate any material law or
regulation of any court, governmental body or administrative
or other agency having jurisdiction over it. NOVO NORDISK is
not a party to any contract the terms of which would conflict
with the terms of this Agreement or under which a default or
violation would arise as a result of the execution, entering
into or performance of this Agreement. NOVO NORDISK has not
granted any third party any rights which would conflict with
the rights granted to DYAX hereunder.
7 PUBLICATION
During the term of this Agreement each party primarily responsible in
the Field for proposed publication whether written or oral (the
publishing party) shall at least *************** before presentation or
submission of the proposed publication to a third party submit such
proposed publication to the other party (the non-publishing party) for
review in connection with preservation of patentable rights and/or to
determine whether confidential information should be modified or
deleted. If the non-publishing party determines that confidential
information should be deleted from the proposed publication, the
publishing party shall make such deletion before publication. The
non-publishing party shall have *************** in which to review each
proposed publication. The review period may be extended for an
additional *************** when the non-publishing party provides a
reasonable need for such extension including but not limited to the
preparation and filing of pertinent patent applications. The parties
will treat matters of authorship in a proper collaborative spirit,
giving credit where it is due, but will not publish any information
relating to the Project program which might jeopardize any patent
rights of either party.
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AND EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
8 TERM
8.1 The term of the Project shall commence as of the Effective
Date and continue, unless terminated as provided for below,
for *************** plus an additional *************** period
for NOVO NORDISK to carry out evaluation, cf. Article 4.2.
8.2 The term of the exclusive license for each ***************
System granted in accordance with Article 4 shall, unless
terminated as provided for below, be for a period of
*************** for each *************** System.
9 TERMINATION
9.1 NOVO NORDISK shall be entitled to terminate this
Agreement without cause with a prior written notice of
***************. In such event NOVO NORDISK shall
***************.
9.2 Upon *************** prior written notice, either Party hereto
shall be entitled to terminate this Agreement if the other
Party has committed a material breach of any of its
obligations or has failed to comply with material conditions
under this Agreement and such breach or failure to perform has
not been incurred within a *************** period after being
notified in writing of the other Party's or parties' intention
to terminate this Agreement, or if such failure, breach or
default cannot be cured within such a *************** period
within a reasonable time provided that the Party in breach has
committed substantial remedial actions within such
*************** period and is diligently pursuing the same.
All of the parties hereto in addition to any other remedies
available to them in law may terminate this Agreement by
written notice to the other Party or parties hereto in the
event the other Party or parties shall
a) become insolvent or bankrupt;
b) make an assignment for the benefit of its or their
creditors;
c) appoint a trustee or receiver for itself or
themselves for all or a substantial part of its or
their property, seek reorganization, liquidation,
dissolution, a winding arrangement, composition or
readjustment of its or their debts;
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AND EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
d) ***************.
10 EFFECT OF TERMINATION
Expiration or termination of this Agreement shall not relieve the parties of
any obligation accruing prior to such expiration or termination and the
provisions of Articles *************** and *************** shall survive the
expiration or termination of this Agreement. If NOVO NORDISK terminates under
Article 9.1 or DYAX terminates under Article 9.2, then all rights to licenses
revert to DYAX.
11 INDEMNIFICATION PROVISION
11.1 INDEMNIFICATION BY NOVO NORDISK
NOVO NORDISK shall defend, indemnify and hold DYAX harmless
from and against any and all liability, damage, loss, cost
(including reasonable attorney's fees) and expense resulting
from any claim of death, personal injury or property damage
arising out of NOVO NORDISK's use of the results arising from
the Project Programme. Notwithstanding the foregoing DYAX
shall not be entitled to indemnification under this Article 10
against any claim of personal injury or property damage
resulting from DYAX' negligence or wilful actions or
misconduct.
11.2 INDEMNIFICATION BY DYAX
DYAX shall defend, indemnify and hold NOVO NORDISK harmless
from and against any and all liability, damage, loss, cost
(including reasonable attorney's fees) and expense resulting
from any claim of death, personal injury or property damage in
connection with DYAX's conduct of the Project program.
Notwithstanding the foregoing NOVO NORDISK shall not be
entitled to indemnification under this Article 10 against any
claim of personal injury or property damage resulting from
NOVO NORDISK's negligence or wilful actions or misconduct.
11.3 INDEMNIFICATION PROCEDURE
In the event that either party shall receive notice of a claim
for which indemnification may be sought under Articles 10.1
and 10.2 above such party shall inform the indemnifying party
and the indemnifying party shall decide how to respond to the
claim and how to handle the claim in an efficient manner.
12 FORCE MAJEURE
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Neither party shall be held liable or responsible to the other party nor be
deemed to have defaulted under or breached this Agreement for failure or delay
in fulfilling or performing any term of this Agreement when such failure or
delay is caused by or results from causes beyond the reasonable controlled of
the affected party including but not limited to fire, floods, embargoes, war,
acts of war (whether war be declared or not) insurrections, riots, civil
commotions, acts of God or acts, omissions or delays in action by any
governmental authority or the other party.
13 ASSIGNMENT
This Agreement may not be assigned or otherwise transferred by either party
without the consent of the other party, except to an Affiliate.
14 MISCELLANEOUS
14.1 NOTICES
Any notice to be given under this Agreement shall be sent in
writing in English by registered airmail or telecopied to:
DYAX CORP.
One Xxxxxxx Square
Building 000, 0xx Xxxxx
Xxxxxxxxx, XX 00000
XXX
Attention: Chief Executive Officer
Telephone: 000 000 0000
Telefax: 000 000 0000
00
00
XXXX XXXXXXX X/X
Xxxx Xxxx
XX-0000 Bagsvaerd
Denmark
Attention: Protein Technology
Telephone: 00 00 00 00 00
Telefax: 45 44 43 84 00
or to such other address(es) and telecopier numbers as may
from time to time be notified by either party to the other
hereunder.
Any notice sent by mail shall be deemed to have been delivered
within seven (7) working days after dispatch and any notice
sent by telex or telecopy shall be deemed to have been
delivered within twenty-four (24) hours of the time of the
dispatch. Notice of change of address shall be effective upon
receipt.
14.2 AMENDMENTS OF AGREEMENT
This Agreement may be amended, or any term hereof modified, or
only by a written instrument duly executed by both parties
hereto.
14.3 WAIVER
The waiver by either party hereto of any right hereunder or
the failure to perform or of a breach by the other party shall
not be deemed a waiver of any other right hereunder of any
other breach or failure by said other party whether of a
similar nature or otherwise.
14.4 SEVERABILITY
In the event that anyone or more of the provisions of this
Agreement should for any reason be held by any court or
authority having jurisdiction over this Agreement and the
parties to be invalid, illegal or unenforceable, such
provisions shall be deleted in such jurisdiction, provided,
however, that the invalid provisions are not of such essential
importance to this Agreement that it is to be reasonably
assumed that the parties would not have entered into this
Agreement without the invalid provisions.
14.5 APPLICABLE LAW
This Agreement shall be governed by and construed in
accordance with the laws of England.
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14.6 JURISDICTION
Both parties will use their best endeavors to settle all
matters in dispute amicably. All disputes and differences of
any kind related to this Agreement, which cannot be solved
amicably by the parties, shall be referred to arbitration.
The arbitration court shall consist of three arbitrators. The
arbitration, including appointment of arbitrators, shall be
carried out in accordance with the valid rules of the
International Chamber of Commerce (excluding the conciliation
procedure). The arbitration shall take place in London and
shall be conducted in the English language. The award of the
arbitrators shall be final and binding on both parties. The
parties bind themselves to carry out the awards of the
arbitrators.
Xxxxxxxxx, XX 0000-00-Xxx Bagsvaerd, 1997-16-Jan
DYAX Corp. NOVO NORDISK A/S
/s/ Xxxxxx X. Xxxxxxxxx /s/ Xxx Xxxx
--------------------------------- ----------------------------------
By: Xxxxxx X. Xxxxxxxxx By: Xxx Xxxx
V.P., Bioseparations Director of Biologics
Development
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AND EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
EXHIBIT A (Novo Nordisk - Dyax Co-operation)
The *************** system outlined by Novo Nordisk is displayed in figure 1.
***************.
Figure 1:
A) ***************
B) ***************
C) ***************
D) ***************
***************.
Signed
/s/ Xxx Xxxx /s/ Xxxxxx X. Xxxxxxxxx
----------------------------------- --------------------------------
Novo Nordisk A/S Dyax
Copenhagen, January 16, 1997 16 Jan. 1997
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