EXHIBIT 10.8
PEPTIDE THERAPEUTICS LIMITED
- and -
NOVARTIS PHARMA AG
------------------------------------------------------------------------------
COLLABORATION AGREEMENT
------------------------------------------------------------------------------
CONTENTS
1 Definition
2 The Programme
3 Consideration
4 Intellectual Property
5 Licence Agreement
6 Confidentiality
7 Publications
8 Warranties and Undertakings
9 Announcements
10 Assignment
11 Costs
12 Further Assurance
13 Term
14 General
15 Governing Law and Jurisdiction
16 Counterparts
Schedule 1 - Research Plan
Schedule 2 - Licence Agreement
THIS AGREEMENT is made on 1st November 1998
BETWEEN:-
(1) PEPTIDE THERAPEUTICS LIMITED (No 2774777) whose registered office is at
000 Xxxxxxxxx Xxxxxxx Xxxx, Xxxxxx Xxxx, Xxxxxxxxx, XX0 0XX XX
("PEPTIDE"); and
(2) NOVARTIS PHARMA AG whose registered office is at Xxxxxxxxxxxx 00,
XX-0000, Xxxxx, Xxxxxxxxxxx ("NOVARTIS").
Together referred to as "the Parties", each singly as a "Party".
WHEREAS
(A) Peptide has developed a system for the discovery of substrates and the
development of inhibitors of protease enzymes known as RAPiD (Rational
Approach to Protease Inhibitor Design);
(B) Novartis has identified the Target Protease for which they wish to
develop Substrates and Inhibitors as such terms are hereinafter
defined;
(C) The Parties have agreed that Peptide will carry out the Programme on
the Target Protease using RAPiD and endeavour to provide a Substrate
and Data (as hereinafter defined) to Novartis; and
(D) Following completion of the Programme, Novartis will have the option to
enter into a licence agreement with Peptide to allow use of the
Substrate and Data.
IT IS AGREED as follows:
1 DEFINITION
1
"AFFILIATE(S)" In the case of either Party, a corporation
or other entity which, directly or
indirectly, controls, is controlled by or is
under common control with, that Party. A
corporation or other entity shall be
regarded as in control of another
corporation or entity if it owns or directly
or indirectly controls more than fifty
percent (50%) of the voting stock or other
ownership interest of the other corporation
or entity, or if it possesses, directly or
indirectly, the power to direct or cause the
direction of the management and policies of
the corporation or other entity.
"ARISING IP" Any Intellectual Property resulting from the
Programme carried out by Peptide including
Data.
"BACKGROUND IP" All Intellectual Property owned by or
available to either Party prior to this
Agreement or generated during the term of
this Agreement but not resulting from the
Programme. For the avoidance of doubt the
Parties recognise that Novartis owns all
Intellectual Property related to the Target
Protease as well as to any compounds for
which Novartis discovers a pharmacological
activity with respect to such Target
Protease, and Peptide owns all Intellectual
Property related to RAPiD.
2
"CONFIDENTIAL INFORMATION"
All information disclosed by one Party ("the
Disclosing Party") to the other ("the
Receiving Party") whether before or after
the date of this Agreement which is not in
the public domain including without
prejudice to the generality of the
foregoing; know-how and/or documents
relating to or comprising the Background IP;
know-how and/or documents relating to or
comprising the Arising IP, and the Data and
any information relating to the Disclosing
Party's products, operations, processes,
plans or intentions, know-how, intellectual
property, inventions, trade secrets, market
opportunities and business affairs.
"DATA" The data relating to the Target Protease
generated during the Programme by or on
behalf of Peptide.
"FRET" Fluorescence Resonance Energy Transfer.
"INHIBITOR" Any inhibitor of the Target Protease.
"INTELLECTUAL PROPERTY" Any and all interest whether legal or
beneficial arising under the laws of England
or elsewhere in patent, copyright, design
right, rights in confidentiality, trade xxxx
rights and any other analogous rights,
applications for any of the foregoing (and
the right to make such applications)
including Know How.
3
"KNOW HOW" Technical and scientific information,
necessary or useful in developing
Substrates, not at present in the public
domain and held in any form (including,
without limitation, that comprised in or
derived from drawings, data, formulae,
specifications, notes, chemical compounds,
computer software, component lists,
instructions, manuals, reports and process
descriptions) by either Party to this
Agreement.
"LICENCE AGREEMENT" The agreement to be entered into to allow
Novartis to use the Substrate and the Data,
the form of which is set out in Schedule 2.
"OPTION PERIOD" A period of two (2) months from receipt
by Novartis of the Report or Substrate,
if identified, (whichever is the later)
allowing Novartis to evaluate the Data.
"PRESS RELEASE" The press release announcing the conclusion
of this Agreement the wording of which
having been mutually agreed by the Parties .
"PROGRAMME" The research programme, outlined in Schedule
1, during the performance of which Peptide
will apply RAPiD to the Target Protease
supplied by Novartis, and the purpose of
which is to identify a Substrate for the
Target Protease.
"RAPID" Peptide's proprietary system for discovering
substrates and developing inhibitors of
protease enzymes.
"REPORT" A written report summarising the Data to be
provided by Peptide to Novartis.
4
"SUBSTRATE" A FRET substrate for the Target Protease
having a []* and selected by Novartis as
being suitable for use in an assay for
measuring the proteolytic activity of
Target Protease.
"TARGET PROTEASE" []*
2 THE PROGRAMME
2.1 Within []* of signing this Agreement, Novartis shall provide Peptide
with sufficient Target Protease required for the Programme and any
available information necessary to assay the Target Protease.
2.2 Peptide agrees to use reasonable endeavours to carry out the Programme
and to deliver to Novartis the Report as soon as is reasonably
practicable. In addition, if Peptide has identified a Substrate for
the Target Protease, Peptide will promptly supply Novartis with
approximately []* of the Substrate for evaluation by Novartis. In
any event Peptide shall provide the Report to Novartis within []* of
the date of this Agreement.
3 CONSIDERATION
In consideration of Peptide carrying out the Programme Novartis
agrees to pay to Peptide [ ]* exclusive of any applicable sales taxes
thereon within [ ]* of (a) signing this Agreement and (b)
receipt of an invoice for this amount from Peptide, whichever is later.
4 INTELLECTUAL PROPERTY
4.1 For the avoidance of doubt all Background IP shall remain the property
of the Party owning such Background IP prior to this Agreement or
generating or acquiring it during the term of this Agreement.
5
4.2 Any Arising IP and all Data shall be the property of Peptide.
4.3 Novartis shall have a sole licence during the Option Period to use the
Data and the Substrate only for the purpose of internally evaluating
the Data and the Substrate.
5 LICENCE AGREEMENT
5.1 During the Option Period Novartis may elect to enter into the License
Agreement in the form set out in Schedule 2.
5.2 In the event Novartis elects not to enter into the License Agreement
during the Option Period, the following terms and conditions shall
apply, subject to Clause 6 hereof:
(a) Novartis shall make no further use or disclosure of the Data
nor of any data which has been derived, in part or in its
entirety, from or by use of the Data; and
(b) Novartis shall make no further use or disclosure of the
Substrate provided or identified by Peptide nor any substrate
derived from such Substrate nor shall it make any further use
or disclosure of any associated Data related to the Substrate;
and
(c) Novartis shall make no further use or disclosure of any of the
Confidential Information provided to it by Peptide; and
(d) Novartis shall return to Peptide all Data and Confidential
Information received by it in any format whatsoever together
with any and all copies of such Data and Confidential
Information which may have been made in any format whatsoever
and agrees to destroy any remaining quantities of Substrate.
6 CONFIDENTIALITY
6
6.1 During the term of this Agreement and for a period of 5 years after
termination or expiration of this Agreement for any reason
whatsoever the Receiving Party shall;
6.1.1 keep the Confidential Information confidential;
6.1.2 not disclose the Confidential Information to any other person
or entity other than with the prior written consent of the
Disclosing Party; and
6.1.3 not use the Confidential Information for any purpose other
than the performance of its obligations or the exercise of its
rights under this Agreement.
The Receiving Party shall procure that its employees and the employees of its
Affiliates are made aware of and comply with all the Receiving Party's
obligations of confidentiality under this Agreement as if these employees were a
party to this Agreement.
6.2 The obligations contained in Clause 6.1 shall not apply to any
Confidential Information which: -
6.2.1 at the date of this Agreement or at any time after the date of
this Agreement is, or comes into, the public domain other than
through breach of this Agreement by the Receiving Party or any
Recipient;
6.2.2 can be shown by the Receiving Party to the satisfaction of the
Disclosing Party to have been known by the Receiving Party
before disclosure by the Disclosing Party to the Receiving
Party;
6.2.3 subsequently comes lawfully into the possession of the
Receiving Party from a third party under no obligation of
confidence to the Disclosing Party in respect of such
Confidential Information;
----------
* This portion of the Exhibit has been omitted pursuant to a Request for
Confidential Treatment under Rule 406 of the Securities Act of 1933, as
amended. The complete Exhibit, including the portions for which confidential
treatment has been requested, has been filed separately with the Securities
and Exchange Commission.
7
6.2.4 is subsequently and independently developed by employees of
the Receiving Party or Affiliates thereof who had no knowledge
of the Confidential Information disclosed; or
6.2.5 is required by law, by any court of competent jurisdiction or
by any other appropriate regulatory body (including without
limitation the London Stock Exchange Limited and the Panel on
Take-overs and Mergers).
7 PUBLICATIONS
Neither Novartis nor Peptide shall submit for written or oral publication any
manuscript, abstract or the like which includes data or other information
generated and provided by the other Party without first obtaining the prior
written consent of the other Party, which consent shall not be unreasonably
withheld. The contribution of each Party shall be noted in all publications or
presentations by acknowledgement or co-authorship, whichever is appropriate.
8 WARRANTIES AND UNDERTAKINGS
The Parties exclude to the fullest extent permitted by law any warranties,
conditions, undertakings or terms implied by operation of law (statutory or
otherwise).
9 ANNOUNCEMENTS
The Parties agree that immediately following the execution of this Agreement the
Press Release may be released by the Parties . No other public announcement,
communication or circular (other than to the extent required by law, the London
Stock Exchange Limited or the Panel on Take-overs and Mergers or any other
regulatory body in any jurisdiction) concerning the transactions referred to in
this agreement shall be made or dispatched by either Party for so long as this
Agreement continues in force without the prior written consent of the other
Party, such consent not to be unreasonably withheld or delayed.
10 ASSIGNMENT
8
Neither Party shall assign or transfer or purport to assign or transfer any of
its rights or obligations under this Agreement except with the prior written
consent of the other Party save that either Party may at any time assign or
transfer any of its rights or obligations under this Agreement to any of its
Affiliates. This Agreement shall be binding upon and shall inure to the benefit
of the parties hereto, their successors and assigns.
11 COSTS
Except as otherwise expressly provided in this Agreement, each Party shall pay
its own costs of and incidental to the negotiation, preparation, execution and
implementation by it of this Agreement and of all other documents referred to in
it.
12 FURTHER ASSURANCE
Each Party shall at its own cost do and execute or procure to be done and
executed all necessary acts, deeds, documents and things reasonably within its
power to give effect to this Agreement.
13 TERM
This Agreement shall come into effect on the date first written above and shall
end on expiry of the Option Period.
14 GENERAL
14.1 This Agreement constitutes the entire agreement between the Parties
relating to the subject matter of this Agreement and supersedes all
previous such agreements whether made orally or in writing.
14.2 No variation of this Agreement shall be valid unless it is in writing
and signed by or on behalf of each of the Parties.
14.3 The failure to exercise or delay in exercising right or remedy under
this Agreement shall not constitute a waiver of the right or remedy or
a waiver of any other rights or remedies
9
and no single or partial exercise of any right or remedy under this
Agreement shall prevent any further exercise of the right or remedy or
the exercise of any other right or remedy.
14.4 Nothing in this Agreement shall be construed as creating a partnership
between the Parties or as constituting either Party as the agent of the
other Party for any purpose whatsoever and neither Party shall have the
authority or power to bind the other Party or to contract in the name
of or create a liability against the other Party in any way or for any
purpose.
14.5 If the performance of any part of this Agreement by either Party, or of
any obligation under this Agreement, is prevented, restricted,
interfered with or delayed by reason of any cause beyond the control of
the Party liable to perform, unless conclusive evidence to the contrary
is provided, the Party so affected shall, upon giving written notice to
the other Party, be excused from such performance to the extent of such
prevention, restriction, interference or delay, provided that the
affected Party shall use its best efforts to avoid or remove such
causes of non-performance and shall continue performance with the
utmost dispatch whenever such causes are removed. When such
circumstances arise, the parties shall discuss what, if any,
modification of the terms of this Agreement may be required in order to
arrive at an equitable solution.
14.6 Provisions of this Agreement which, by their nature, are intended to
survive termination of this Agreement, shall so survive.
15 GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by the laws of England and Wales and
the parties hereto hereby irrevocably submit to the jurisdiction of the
English Courts.
16 COUNTERPARTS
10
This Agreement may be executed in any number of counterparts each of
which when executed and delivered shall be an original, but all the
counterparts together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties, through their authorised officers, have
executed this Agreement as of the date first written above.
Signed on behalf of )
PEPTIDE THERAPEUTICS LIMITED )
Signed on behalf of )
NOVARTIS PHARMA AG )
11
SCHEDULE 1
RESEARCH PLAN
[]*
----------
* This portion of the Exhibit has been omitted pursuant to a Request for
Confidential Treatment under Rule 406 of the Securities Act of 1933, as
amended. The complete Exhibit, including the portions for which confidential
treatment has been requested, has been filed separately with the Securities
and Exchange Commission.
12
SCHEDULE 2
LICENCE AGREEMENT
THIS AGREEMENT is made on ...............................199
BETWEEN:-
(1) PEPTIDE THERAPEUTICS LIMITED (No 2774777) whose registered office
address is at 000 Xxxxxxxxx Xxxxxxx Xxxx, Xxxxxx Xxxx, Xxxxxxxxx, XX0
0XX XX ("PEPTIDE"); and
(2) NOVARTIS PHARMA AG whose registered office address is at Xxxxxxxxxxx 00,
XX-0000, Xxxxx, Xxxxxxxxxxx ("NOVARTIS").
WHEREAS
(A) Peptide and Novartis entered into a Collaboration Agreement on
[ ] under which Peptide agreed to carry out a Programme on the
Target Protease using RAPiD and to endeavor to provide a Substrate
and Data to Novartis.
(B) Peptide has successfully completed the Programme.
(C) Novartis has elected to exercise its option under the Collaboration
Agreement to take a licence to Data, Background IP, and Substrate
arising from the programme of work on the terms and conditions of this
Agreement.
IT IS AGREED as follows:-
1 INTERPRETATION
Unless expressly stated otherwise all terms used herein shall have the
meaning set forth in the Collaboration Agreement.
13
"EDC DECLARATION" means the point at which a development
compound is declared an Early Development
Compound (EDC) by Novartis' Innovation
Management Board or some other similar
body, authorising the completion of the
preclinical development programme thereby
allowing progression of the compound to
Phase I clinical trials.
FIRST REGULATORY APPROVAL means authorisation for marketing a Product
by the United States Food and Drug
Administration or by the governing health
authority in any other country or region.
"IND" means Investigational New Drug application,
or the like, as defined in the applicable
laws and regulations of the governmental
drug regulatory agencies in each country.
"PATENTS" means all patents and patent applications
anywhere in the world which are or become
owned and/or controlled, in whole or in
part, by Peptide and any Affiliates of
Peptide and under which Peptide otherwise
has, now or in the future, the right to
grant licences and which generically or
specifically claim Substrate or which have
claims covering Substrate, a process for
manufacturing Substrate, and/or
intermediates used in such process and/or
use of Substrate. Included within the
definition of Patents are any
continuations, continuations-in-part,
divisions, patents of addition, reissues,
renewals or extensions thereof.
"PRODUCT" means an Inhibitor of Target Protease
developed or commercialised by Novartis for
any therapeutic, diagnostic or prognostic
health-care applications whose potential
was identified through the use of the Data
and/or Substrate supplied by Peptide.
14
"TERRITORY" means the world.
"THIRD PARTY(IES)" means any party which is neither a Party to this
Agreement nor an Affiliate.
2 GRANT
2.1 Peptide hereby grants to Novartis and its Affiliates an exclusive
worldwide licence under Patents and other Peptide Intellectual
Property, to use the Data, Substrate-relevant Backgroup IP and Arising
IP for the sole purpose of identifying, characterising or developing
Inhibitors subject to the terms and conditions of this Agreement. For
the avoidance of doubt this licence shall not give Novartis any rights
to use RAPiD for any purpose whatsoever including the finding of
additional Substrate(s) or Inhibitor(s).
2.2 Novartis shall be entitled to grant sub-licences under the licence set
forth in clause 2.1 above but shall remain responsible for the payments
and other obligations to Peptide set forth herein.
3 PAYMENTS
3.1 In consideration of the licence granted to Peptide to Novartis under
this Agreement Novartis agrees to pay to Peptide the following
non-refundable amounts:-
3.1.1 an annual licence fee of [ ]* payable by Novartis
to Peptide beginning on the first anniversary of this Agreement
and subsequently on each anniversary of the execution of this
Agreement for a period of [ ]*, whichever is the
shorter;
3.1.2 success fees, depending on the speed with which Novartis will
effect an EDC Declaration of a Product:
-----------------
* This portion of the Exhibit has been omitted pursuant to a Request for
Confidential Treatment under Rule 406 of the Securities Act of 1933, as
amended. The complete Exhibit, including the portions for which confidential
treatment has been requested, has been filed separately with the Securities
and Exchange Commission.
15
(1) if such EDC Declaration of a Product occurs within [ ]* from the
date of this Licence Agreement, Novartis will make to Peptide the
milestone payments specified in column "B" below, whenever a Product
crosses one of the milestone events indicated in column "A";
(2) if such EDC Declaration of a Product occurs within [ ]* from the
date of this Licence Agreement, Novartis will make to Peptide the
milestone payments specified in column "C" below, whenever a Product
crosses one of the milestone events indicated in column "A";
(3) if such EDC Declaration of a Product occurs within [ ]* from the
date of this Licence Agreement, Novartis will make to Peptide the
milestone payments specified in column "D" below, whenever a Product
crosses one of the milestone events indicated in column "A";
------------------------------------------------------------------------------
A B C D
------------------------------------------------------------------------------
Time taken to get to EDC
Declaration [ ]* [ ]* [ ]*
------------------------------------------------------------------------------
EDC Declaration
[ ]* [ ]* [ ]*
------------------------------------------------------------------------------
IND Non-refusal
[ ]* [ ]* [ ]*
------------------------------------------------------------------------------
First Regulatory Approval
[ ]* [ ]* [ ]*
------------------------------------------------------------------------------
TOTAL
[ ]* [ ]* [ ]*
------------------------------------------------------------------------------
---------------
* This portion of the Exhibit has been omitted pursuant to a Request for
Confidential Treatment under Rule 406 of the Securities Act of 1933, as
amended. The complete Exhibit, including the portions for which confidential
treatment has been requested, has been filed separately with the Securities
and Exchange Commission.
16
3.1.3 If a Product is abandoned during development after one or more of the
milestone payments above has been made, and if a back-up Product is
developed to replace such abandoned Product, then no milestone
payment shall be made in respect of the back-up Product which
milestone payment has already been made in respect of the abandoned
Product.
3.2 All payments to be made by Novartis to Peptide pursuant to this Agreement
shall be made in pounds sterling within thirty (30) days of receipt of an
invoice from Peptide. Novartis shall promptly report to Peptide the
occurrence of any event which would trigger a milestone payment according
to Clause 3.1 above.
3.3 All payments shall be exclusive of any taxes (including where applicable
Value Added Tax and withholding tax) which shall be payable in addition to
such payments by the maker of such payments.
4 DEVELOPMENT
4.1 Novartis will use commercially reasonable efforts and diligence to achieve
the milestones set out in 3.1.2 above.
17
4.2 Novartis shall report to Peptide at six monthly intervals on the status
and progress of Novartis's efforts to achieve the milestones set out in
3.1.2 above, until such time as Novartis abandons efforts to develop
Products.
5 EXCHANGE OF INFORMATION AND CONFIDENTIALITY
5.1 During the term of this Agreement, Novartis shall have full access to all
matters encompassed within Data and Peptide shall promptly disclose
and/or supply Novartis with all Data.
5.2 During the term of this Agreement and for five (5) years thereafter,
irrespective of any termination earlier than the expiration of the term
of this Agreement, Peptide and Novartis shall keep the Confidential
Information confidential and not use or reveal or disclose to Third
Parties any Confidential Information received from the other Party or
developed by either Party in the performance of activities in furtherance
of this Agreement without first obtaining the written consent of the
disclosing party:
5.2.1 except as may be otherwise provided herein; or
5.2.2 as may be required for purposes of investigating, developing,
manufacturing or marketing Substrate or Product or for securing
essential or desirable authorisations, privileges or rights from
governmental agencies; or
5.2.3 is required by law, by any court of competent jurisdiction or by
any other appropriate regulatory body (including without limitation
the London Stock Exchange Limited and the Panel on Take-overs and
Mergers).
5.2.4 is necessary to file or prosecute patent applications concerning
Substrate Inhibitors or to carry out any litigation concerning
Substrate or Inhibitors.
5.3 The confidentiality obligation in Clause 5.2 shall not apply to such
information which:
18
5.3.1 at the date of this Agreement or at any time after the date of
this Agreement is, or comes into, the public domain other than
through breach of this Agreement by the receiving Party or any
Recipient;
5.3.2 can be shown by the Receiving Party to the satisfaction of the
Disclosing Party to have been known by the Receiving Party before
disclosure by the Disclosing Party to the Receiving Party;
5.3.3 subsequently comes lawfully into the possession of the
Receiving Party from a third party under no obligation of
confidence to the Disclosing Party in respect of such Confidential
Information;
5.3.4 is subsequently and independently developed by employees of the
Receiving Party or Affiliates thereof who had no knowledge of the
Confidential Information disclosed; or
5.3.5 is required by law, by any court of competent jurisdiction or
by any other appropriate regulatory body (including without
limitation the London Stock Exchange Limited and the Panel on
Take-overs and Mergers).
The parties shall take reasonable measures to ensure that no unauthorised
use or disclosure is made by others to whom access to such Confidential
Information is granted.
5.4 Nothing herein shall be construed as preventing either Party from
disclosing any information received from the other Party to an Affiliate,
sub-licensee or distributor, provided such Affiliate, sub-licensee or
distributor has undertaken a similar obligation of confidentiality with
respect to the Confidential Information in terms as if such recipient
were a Party to this Agreement.
5.5 All Confidential Information disclosed by one Party to the other shall
remain the property of the Disclosing Party. In the event that a court or
other legal or administrative tribunal, directly or through an appointed
master, trustee or receiver, assumes partial or complete
19
control over the assets of a Party to this Agreement based on the
insolvency or bankruptcy of such Party, the bankrupt or insolvent Party
shall promptly notify the court or other tribunal:
(i) that Confidential Information received from the other Party under
this Agreement remains the property of the other Party; and
(ii) of the confidentiality obligations under this Agreement.
In addition, the bankrupt or insolvent Party shall, to the extent
permitted by law, take all steps necessary or desirable to maintain the
confidentiality of the other Party's Confidential Information and to
ensure that the court, other tribunal or appointee maintains such
information in confidence in accordance with the terms of this Agreement.
5.6 No public announcement or other disclosure to Third Parties concerning
the existence of or terms of this Agreement shall be made, either
directly or indirectly, by any Party to this Agreement, except as may be
legally required or as may be required for recording purposes, without
first obtaining the approval of the other Party and agreement upon the
nature and text of such announcement or disclosure such agreement not to
be unreasonably withheld or delayed. The Parties agree that immediately
following the execution of this Agreement a Press Release may be
released by the Parties concerning the completion of this Agreement the
contents of which will be mutually agreed by them. Similar mutually
approved Press Releases may be released throughout the term of the
Agreement as major milestones are achieved.
5.7 Neither Novartis nor Peptide shall submit for written or oral
publication any manuscript, abstract or the like which includes data or
other information generated and provided by the other Party without
first obtaining the prior written consent of the other Party, which
consent shall not be unreasonably withheld. The contribution of each
Party shall be noted in all publications or presentations by
acknowledgement or co-authorship, whichever is appropriate.
20
6 PATENT PROSECUTION AND LITIGATION
6.1 Peptide shall be responsible for the filing, prosecution and maintenance
of Patents at its own expense.
6.2 Peptide agrees to keep Novartis promptly and fully informed of the
course of patent prosecution or other proceedings. Novartis shall hold
all information disclosed to it under this section as confidential
subject to the provisions of Clause 5.
6.3 Novartis shall have the right to assume responsibility for any Patent or
any part of a Patent that relates to Substrate which Peptide desires,
after consultation with Novartis, to abandon or otherwise cause or allow
to be forfeited.
6.4 In the event that Peptide or Novartis becomes aware of actual or
threatened infringement of a Patent anywhere in the Territory, that
Party shall promptly notify the other Party in writing. Novartis shall
have the first right but not the obligation to bring, at its own
expense, an infringement action against any Third Party and to use
Peptide's name in connection therewith. If Novartis does not commence a
particular infringement action within ninety (90) days of notifying
Peptide of any such infringement, Peptide after notifying Novartis in
writing, shall be entitled to bring such infringement action at its own
expense. The Party conducting such action shall have full control over
its conduct, including settlement thereof. In any event, Peptide and
Novartis shall assist one another and cooperate in any such litigation
at the other's request.
6.5 Peptide and Novartis shall recover their respective actual out-of pocket
expenses, or equitable proportions thereof, associated with any
litigation or settlement thereof from any recovery made by any Party.
Any excess amount shall be shared between Novartis and Peptide, with
each Party receiving 50% (fifty percent) of such excess.
6.6 The parties shall keep one another informed of the status of and of
their respective activities regarding any litigation or settlement
thereof concerning Substrate or Product.
21
6.7 Peptide shall authorise Novartis to act as Peptide's agent for the
purpose of making any application for any extensions of the term of
Patents and shall provide reasonable assistance therefor to Novartis,
at Novartis' expense (In the United States of America as permitted
under Title 35 of the United States Code).
7. TERM AND TERMINATION
7.1 If either Party fails or neglects to perform any material covenants or
provisions of this Agreement and if such default is not corrected
within sixty (60) days after receiving written notice from the other
Party with respect to such default, such other Party shall have the
right to terminate this Agreement by giving written notice to the Party
in default provided the notice of termination is given within six (6)
months of the default and prior to correction of the default.
7.2 Either Party (the "Solvent Party") may terminate this Agreement if, at
any time, the other Party (the "Insolvent Party") shall file in any
court or agency pursuant to any statute or regulation of (the United
States or of) any (individual) state or (foreign) country, a petition
in bankruptcy or insolvency or for reorganisation or for an arrangement
or for the appointment of a receiver or trustee of the Party or of its
assets, or if the Insolvent Party proposes a written agreement of
composition or extension of its debts, or if the other Party shall be
served with an involuntary petition against it, filed in any insolvency
proceeding, and such petition shall not be dismissed with sixty (60)
days after the filing thereof, or if the Insolvent Party shall propose
or be a party to any dissolution or liquidation, or if the Insolvent
Party shall make an assignment for the benefit of creditors.
7.3 Notwithstanding the bankruptcy of Peptide, or the impairment of
performance by Peptide of its obligations under this Agreement as a
result of bankruptcy or insolvency of Peptide, Novartis shall be
entitled to retain the licenses granted herein, without any further
obligations to Peptide, subject to Peptide's right to terminate this
Agreement for reasons other than bankruptcy or insolvency as expressly
provided in this Agreement.
22
8 RIGHTS AND DUTIES UPON TERMINATION
8.1 Upon termination of this Agreement, Peptide shall have the right to
retain any sums already paid by Novartis hereunder, and Novartis shall
pay all sums accrued hereunder which are then due.
8.2 Termination of this Agreement shall terminate all outstanding
obligations and liabilities between the parties arising from this
Agreement except those which, by their nature, are intended to survive
termination of the Agreement.
9 WARRANTIES AND REPRESENTATIONS
9.1 The Parties exclude to the fullest extent permitted by law any
warranties, conditions, undertakings or terms implied by operation of
law (statutory or otherwise).
9.2 Nothing in this Agreement shall be construed as a warranty that Patents
are or will be valid or enforceable or that their exercise does not or
will not infringe any patent rights of Third Parties.
10. GENERAL
10.1 If the performance of any part of this Agreement by either Party, or of
any obligation under this Agreement, is prevented, restricted,
interfered with or delayed by reason of any cause beyond the
reasonable control of the Party liable to perform, unless conclusive
evidence to the contrary is provided, the Party so affected shall, upon
giving written notice to the other Party, be excused from such
performance to the extent of such prevention, restriction, interference
or delay, provided that the affected Party shall use its reasonable
efforts to avoid or remove such causes of non-performance and shall
continue performance with the utmost dispatch whenever such causes are
removed. When such circumstances arise, the parties shall discuss what,
if any, modification of the terms of this Agreement may be required in
order to arrive at an equitable solution.
23
10.2 This Agreement shall be deemed to have been made in the United Kingdom
and its form, execution, validity, construction and effect shall be
determined in accordance with the laws of England and shall be subject
to the jurisdiction of the English Courts and each of the Parties
hereby irrevocably submits to the jurisdiction of the English Courts.
10.3 In the event any portion of this Agreement shall be held illegal, void
or ineffective, the remaining portions hereof shall remain in full
force and effect.
10.4 If any of the terms or provisions of this Agreement are in conflict
with any applicable statute or rule of law, then such terms or
provisions shall be deemed inoperative to the extent that they may
conflict therewith and shall be deemed to be modified to conform with
such statute or rule of law.
10.5 In the event that the terms and conditions of this Agreement are
materially altered as a result of Clauses 10.3 or 10.4, the parties
will renegotiate the terms and conditions of this Agreement to resolve
any inequities.
10.6 This Agreement, entered into as of the date written above and together
with the surviving provisions of the Collaboration Agreement,
constitutes the entire agreement between the parties relating to the
subject matter hereof and supersedes all previous writings and
understandings. No terms or provisions of this Agreement shall be
varied or modified by an prior or subsequent statement, conduct or act
of either of the parties, except that the parties may amend this
Agreement by written instruments specifically referring to and executed
in the same manner as this Agreement.
10.7 The failure of either Party at any time to exercise any of their
respective rights under this Agreement shall not be deemed a waiver
thereof, nor shall such failure in any way prevent either Party, as the
case may be, from subsequently asserting or exercising such rights.
10.8 Any notice required or permitted under this Agreement shall be sent by
certified mail, return receipt requested, postage pre-paid to the
following addresses of the parties:
24
if to Peptide:
Peptide Therapeutics Limited
321 Cambridge Science Park,
Xxxxxx Xxxx, Xxxxxxxxx XX0 0XX
Xxxxxx Xxxxxxx
Attention: The Company Secretary
if to Novartis:
Xxxxxxxx Xxxxxx XX
X.X. Xxx
XX-0000 Xxxxx-Xxxxxxxxxxx
Attention: The Legal Department
Any notice required or permitted to be given concerning this Agreement
shall be effective upon receipt by the Party to whom it is addressed.
10.9 Neither this Agreement nor any interest hereunder shall be assignable
or transferable by either Party without the written consent of the
other provided, however, that either Party may assign this Agreement to
any Affiliate or to any corporation with which it may merger or
consolidate or to which it may sell all or substantially all of its
assets, without obtaining the consent of the other providing the
interests of that other Party are not materially affected. This
Agreement and the licenses herein granted shall be binding upon and
inure to the benefit of the successors in interest of the respective
parties.
25
IN WITNESS WHEREOF, the parties through their authorised officers, have
executed this Agreement as of the date first written above
Signed on behalf of )
PEPTIDE THERAPEUTICS LIMITED )
Signed on behalf of )
NOVARTIS PHARMA AG )
26
