EXHIBIT 10.53
INSTRUMENT, ASSAY DEVELOPMENT AND LICENSE AGREEMENT
BETWEEN
GLAXO RESEARCH AND DEVELOPMENT LIMITED
AND
GLAXO GROUP LIMITED
AND
AURORA BIOSCIENCES CORPORATION
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This Agreement is made by and between GLAXO RESEARCH AND DEVELOPMENT LIMITED AND
GLAXO GROUP LIMITED both with their principal offices at Glaxo Wellcome House,
Berkeley Avenue, Greenford, Middlesex UB6 ONN, United Kingdom, (together with
any Affiliate company, "GW") and AURORA BIOSCIENCES CORPORATION ("Aurora"), a
Delaware corporation with principal offices at 00000 Xxxxxxxxx Xxxx, Xxx Xxxxx,
Xxxxxxxxxx 00000, X.X.X.
RECITALS
WHEREAS, GW and Aurora wish to enter into an agreement involving the purchase by
GW of a Voltage Ion Probe Reader (VIPR) from Aurora, collaborative research to
develop ***, and licenses of rights from Aurora to GW to use the VIPR as well as
Aurora's Voltage Sensor Probes (VSPs) and the *** to practice the technologies
*** as set forth herein.
Now, therefore, in consideration of the foregoing and the covenants and premises
contained herein the parties agree as follows:
1. DEFINITIONS
1.1 "ACHIEVEMENT OF PROOF OF CONCEPT" means the point at which the
initial human efficacy trial is successfully completed and a
compound approved for further development by GW, such decision
usually being agreed to at a meeting of the GW Therapeutic
Management Team, or its functional equivalent.
1.2 "AFFILIATE" means (1) any corporation or other entity directly
or indirectly owning or controlling, at least *** of the stock
entitled to vote for election of directors with a party to
this Agreement or otherwise having the power to direct the
management and policies of a party to this Agreement, (2) any
corporation or other entity of which a party to this Agreement
directly or indirectly owns or controls at *** of the stock
entitled to vote for election of directors or otherwise has
the power to direct the management and policies, (3) any
corporate or other entity directly or indirectly under common
control with a party to this Agreement; provided, however,
that in the circumstance where the country of incorporation of
such owned or controlled corporation or other entity requires
the maximum ownership by a foreign entity be less ***, the
percentage of ownership required to make such an entity an
affiliate must be equal to the maximum percentage of ownership
permitted by such country provided the operational control is
held by a party to this Agreement.
1.3 "ASSAY" means a ***.
1.4 "ASSAY TRANSFER DATE" means the date that GW receives delivery
***, *** Assay *** Collaborative Research Plan, this date ***
of the Assay by the Steering Committee.
1.5 "AURORA FACTORY CERTIFIED ENGINEERS" means engineers provided
by Aurora to service
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the VIPR ***.
1.6 "AURORA PATENTS" means *** and *** set forth in Exhibit A and
*** issuing therefrom.
1.7 "AURORA TECHNOLOGY" means Materials and Know-How owned or
Controlled by Aurora on or before the Effective Date and
necessary for the Collaborative Research Program.
1.8 "COLLABORATIVE RESEARCH PROGRAM" means the collaboration
between Aurora and GW as set forth in Exhibit B for the
development ***.
1.9 "COLLABORATIVE RESEARCH PLAN" means that project plan attached
as Exhibit B hereto, which may be amended from time to time,
upon written mutual agreement of Aurora and GW.
1.10 "CONFIDENTIAL INFORMATION" means all information, data, and
documentation received by either party from the other party
pursuant to this Agreement and if in writing, designated as
confidential at the time of disclosure, subject to the
exceptions set forth in Section 9.1.
1.11 "CONTROL" OR "CONTROLLED" means, in the context of
intellectual property, possession by a party of the ability to
grant a license or sublicense in accordance with the terms of
this Agreement, and without violating the terms of any
agreement by such party with any Third Party.
1.12 "EFFECTIVE DATE" means the latest date on which the Agreement
is executed by a party hereto.
1.13 "GW COMPOUNDS" means *** compounds and *** that GW shall
provide to Aurora in a format *** and that shall be screened
by Aurora in accordance with Section ***.
1.14 "GW MATERIALS" means Materials provided by GW to Aurora in
furtherance of the Collaborative Research Program.
1.15 "GW TECHNOLOGY" means GW Materials and Know-How owned or
Controlled by GW on or before the Effective Date and necessary
for the Collaborative Research Program.
1.16 "INVENTION" means ***.
1.17 "KNOW-HOW" means information and data owned or Controlled by a
party hereto, which is existing as of the Effective Date or
which a party develops or acquires as part of the
Collaborative Research Program which is not generally known to
the public, comprising: designs, concepts, algorithms,
formulae, techniques, practices, processes,
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methods, knowledge, skill, experience, expertise and technical
information.
1.18 "MATERIALS" means any reagents, cell lines, promoters,
enhancers, vectors, plasmids, genes, proteins and fragments
thereof, peptides, antigens, antibodies, agonists,
antagonists, inhibitors and chemicals.
1.19 "PATENT RIGHTS" means all U.S. or foreign (including regional
authorities such as the European Patent Office) regular or
provisional patent applications, including any continuation,
continuation-in-part, or division thereof or any substitute
application therefor or equivalent thereof, and any patent
issuing thereon, including any reissue, reexamination or
extension thereof and any confirmation patent or registration
patent or patent of additions based on any such patent,
containing one or more claims to an Invention (and in the case
of an issued patent, containing one or more claims), and for
which a party hereto owns or Controls, individually or
jointly, any title thereto or rights thereunder.
1.20 "PRE-CLINICAL CANDIDATE SELECTION" means the point at which
lead optimization is concluded and a candidate for further
development is selected, ***.
1.21 "PRODUCT LAUNCH" means the first commercial sale of a product.
1.22 "***" means *** and ***.
1.23 "TECHNOLOGY" means Materials and Know-How.
1.24 "THIRD PARTY" means any person or entity other than Aurora and
GW or its Affiliates.
1.25 "TRACKING RECORD" means tracking records referred to in
Section 5.8.
1.26 "VIPR" means Aurora's voltage-ion probe reader as described in
Attachment 1 ***.
1.27 "VOLTAGE SENSOR PROBES" OR "VSPS" means *** the Aurora
Patents.
2. EQUIPMENT PURCHASE
2.1. SHIPMENT. Subject to GW's payments in Section 5, Aurora will
ship to GW's *** on or before ***. Aurora will *** support and
technical specifications *** the *** GW's ***. GW will also be
provided *** described in Section 2. *** updates regarding the
***, produced by or on behalf of Aurora.
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2.2. INSTALLATION ***. Subject to GW's payments in Section 5,
Aurora will install *** site within *** days of the Assay
Transfer Date. Reasonable travel and expenses of Aurora
personnel directly related to the installation and validation
shall be billed separately at GW's expense.
2.3. TRAINING. Subject to GW's payments in Section 5, Aurora will
provide a comprehensive consecutive *** training session on
the operation of the VIPR for up to *** GW scientists *** to
be scheduled approximately at the time of the installation
***. Travel and related expenses for Aurora personnel will be
paid by GW. In addition, *** GW engineers will be trained at
Aurora and certified by Aurora for routine servicing of ***
Dollars ($***), such training to take place prior to the
delivery ***.
2.4. WARRANTY. Subject to GW's payments in Section 5, *** with a
*** warranty, entitling GW to *** years of *** support, a
total of *** (*** annually) by an Aurora Factory Certified
Engineer provided by Aurora*** parts, which are *** and ***
service invoice after any *** repair. Travel and related
expenses for Aurora personnel for ***. Travel and related
expenses for service visits other than preventative
maintenance visits shall be paid by GW. No one other than an
Aurora Factory Certified Engineer is authorized to service
***, and any tampering with or modification of the instrument
by any other party will nullify the warranty ***, ***, ***
personnel *** in any month, *** additional *** cost, ***
months of *** and *** to be confirmed in writing by Aurora.
*** as *** support *** day of request *** for ***, if needed,
within *** of request.
3. COLLABORATIVE RESEARCH
3.1. ASSAY DEVELOPMENT AT AURORA. Aurora will use *** to develop,
in collaboration with GW, *** in a *** of the Effective Date
(the "Collaborative Research Program"). Aurora will then
transfer *** with *** and an *** within *** of *** Committee.
Criteria *** defined in the Collaborative Research Plan.
3.1.1. *** DELIVERY OF ***. If Aurora *** to GW *** months
of the Effective Date, GW, *** either: (i) *** and
*** and *** and approval *** is
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contractually precluded from licensing to Third
Parties; or (ii)*** Sections *** and *** and *** .
3.1.2. ***. In the event that all other *** the *** the ***
specified in Exhibit B, the parties ***, or ***
Aurora based upon ***, unless the ***, in which
case ***. In the event *** shall promptly ***
Aurora.
3.2. MATERIALS FROM GW. GW will provide pursuant to this Agreement
the GW Materials and GW Compounds, or a mutually agreed upon
subset thereof, to Aurora within *** days of the Effective
Date, and before ***, respectively. Aurora will not use GW
Materials or GW Compounds for any purpose other than those
described in this Agreement. *** GW.
3.3. SCREENING OF GW COMPOUNDS. Upon validation *** with the
Collaborative Research Plan and payment by GW according to
Section 5.5, Aurora shall undertake to screen the GW Compounds
***. Such screening by Aurora shall be completed within *** of
*** and receipt of the GW Compounds. Upon completion of such
screening and written agreement of the parties, ***, as agreed
upon in the Collaborative Research Plan, GW shall pay Aurora
in accordance with Section 5.5 for performance of such
screening.
3.4. STEERING COMMITTEE. The Collaborative Research Program shall
be managed by a joint steering committee (the "Joint Steering
Committee") of a size and composition to be determined in good
faith by the parties and indicated in writing, with equal
representation from both GW and Aurora. Each member of the
Joint Steering Committee shall have ***. The Joint Steering
Committee shall meet on a schedule and in a venue or format
mutually agreed. Initial meetings shall by teleconference
every ***.
3.5. ***. During the period of the Collaborative Research Program,
***so ***.
4. LICENSES AND OPTION
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4.1. NON-EXCLUSIVE LICENSE. Aurora hereby grants to GW and its
Affiliates a *** license under the Aurora Patents and Aurora
Technology solely to *** Aurora or *** for *** and ***. GW
shall notify Aurora of any *** in writing. The license grant
of this Section 4.1 shall be effective until the date of the
*** anniversary of the ***. The license, at that point, may be
*** described in Section ***. The license grant of this
Section 4.1 may be ***, to allow GW to *** to be proposed by
GW *** other than in the event that Aurora is contractually
precluded from licensing to Third Parties, should GW ***,
during the time period such license grant is in effect, or
should Aurora *** GW *** of the Effective Date, in accordance
with Section ***.
4.2. *** LICENSE. Aurora hereby grants to GW *** license granted in
Section 4.1 above *** on an *** Dollars ($***) to be paid to
Aurora *** (the "***") and each subsequent anniversary of the
*** for up to ***. Such *** the date *** prior to the ***
anniversary of the *** or a later date taking into account any
***. It is understood that the *** under Section ***.
4.3. RETAINED RIGHTS AND LIMITATIONS. The licenses under this
Section 4 are subject to GW's obligations described herein
including payments by GW as set forth in Section 5. For
clarity, the license rights granted to GW in this Section 4
specifically exclude the right 1) ***. Aurora retains the
right to work with other parties on the same or similar
targets, compounds, data and cell lines supplied by a Third
Party or independently developed by Aurora without the use of
GW Confidential Information, GW Compounds, or GW Materials.
Except as expressly licensed herein, GW *** or *** under the
Aurora Patents and Aurora Technology.
5. PAYMENTS
5.1. EQUIPMENT PURCHASE. In consideration for the purchase of the
VIPR, GW shall pay to Aurora a total of *** Dollars ($***)
according to the following schedule of non-refundable,
non-creditable payments:
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5.1.1. A *** Dollar ($***) pre-payment due upon the
Effective Date; and
5.1.2. A *** Dollar ($***) payment due on ***.
Shipping will be prepaid and added FOB San Diego to the
invoice.
5.2. COLLABORATIVE RESEARCH. In consideration for the development
of ***, or in the event that GW *** Assay is ***, GW shall pay
to Aurora in accordance with the following schedule of
non-refundable, non-creditable payments:
5.2.1. *** Dollars ($***) on the Effective Date; and
5.2.2. *** Dollars ($***)*** Assay Transfer Date is *** ;
***
5.2.3. *** Dollars ($***)*** Assay Transfer Date is ***
Effective Date and ***; ***
5.2.4. *** Dollars ($***)*** Assay *** months *** and *** GW
does *** Agreement.
5.3. LICENSE FEES. In consideration for the licenses granted in
Section 4.1, GW shall pay to Aurora a non-refundable,
non-creditable license fee of ***Dollars ($***), first due on
the Assay Transfer Date and then each anniversary of the Assay
Transfer Date for a total *** payments and *** Dollars ($***).
***.
5.4. REAGENT SUPPLY. In consideration for the provision of the VSPs
by Aurora to GW, GW shall pay to Aurora *** Dollars ($***) for
*** of the VSPs. Such *** shall be delivered to GW on the ***.
GW's payment for such VSPs is due upon receipt. For subsequent
orders of VSPs from Aurora during the period from the Assay
Transfer Date to the *** anniversary of the Effective Date, GW
shall pay ***.
5.5. SCREENING PAYMENT. In consideration for the screening services
provided in Section 3.3, GW shall pay to Aurora, the amount
equal to *** Dollars ($***) for such agreed screening program.
Such payment is due within *** after the Assay Transfer Date.
5.6. WARRANTY PAYMENTS. In consideration for the warranty described
in Section 2.4, GW shall pay to Aurora (i) *** Dollars ($***)
on the first anniversary of the Assay Transfer Date ***; and
(ii) *** Dollars ($***) on the *** for the ***.
5.7. ***. In addition to other fees described in this Section 5, GW
shall also pay to Aurora ***, ***:
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Event Milestone Payment
----- -----------------
*** ***
5.8. PAYMENT AND TRACKING MILESTONES. The milestones due under this
Section 5 shall be paid within *** days after the end of each
calendar quarter period in which such milestones are earned
and ***. The compounds and target tested using the Assay
developed under this Agreement will be recorded and stored by
GW using its customary means and in a computer searchable
database on a storage device. The information stored will
include the target, screen type, the concentration, structure
and activity of the compound tested, and date of testing.
Records of any hits, derivatives or any compound subject to
additional screening or evaluation will be stored by GW in a
computer searchable file or database that may or may not be
separate from other GW data not related to the Assay. GW shall
keep appropriate records of compounds discovered, identified
or profiled with the Assay subjected to ***. All the records
described in this Section are collectively referred to as
tracking records (the "Tracking Records"). GW *** by Aurora
and agreed to by GW, and *** GW, to inspect the Tracking
Records once per year upon reasonable prior written request by
Aurora for the sole purpose of determining the attainment of a
milestone under this Section 5. The Tracking Records shall be
securely retained *** for no less than *** years from ***.
Until all of the milestones have been paid and upon the
request of Aurora, GW will provide Aurora with a summary of
the status of development compounds and products that may be
used to calculate milestones.
5.9. PATENT DISCLAIMER. The parties acknowledge that Aurora may not
own or Control patent applications or patents covering the
manufacture, sale, use or importation of a particular compound
or pharmaceutical product developed and/or commercialized by
GW as a result of the Assay; provided, however, GW agrees to
pay to Aurora the milestones in Section 5.7 regardless of
whether a compound or pharmaceutical product is covered by a
patent application or patent within the Aurora Patents.
5.10. WITHHOLDING TAXES. All amounts required to be paid to Aurora
by GW pursuant to Sections 5.3, 5.6 and 5.7 of this Agreement
may be paid ***. At Aurora's request, GW shall provide Aurora
*** hereunder and shall reasonably assist Aurora to ***.
Should the benefit of *** not be as favourable as that
applying at the Effective Date then ***.
6. INTELLECTUAL PROPERTY OWNERSHIP
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6.1. PRE-EXISTING INTELLECTUAL PROPERTY. This agreement does not
affect the ownership of Inventions, Technology and Patent
Rights of either party which existed prior to the Effective
Date.
6.2. INTELLECTUAL PROPERTY CREATED UNDER THE COLLABORATIVE RESEARCH
PROGRAM. The Assay developed by Aurora *** Collaborative
Research Program ***.
6.3. INTELLECTUAL PROPERTY CREATED THROUGH GW'S ***. Any
Inventions, Technology and Patent Rights relating to the
activities or properties of compounds discovered, identified
or profiled through GW's *** the Assay or other assays
incorporating Aurora Technology ***, subject to the terms of
the licenses granted by Aurora under Section 4. *** will be
responsible for the filing, prosecution, and enforcement of
all applicable patents and for the expenses thereof. Any
improvements, Know-How, Inventions, Technology and Patent
Rights developed by ***, *** for paying any fees related to
the filing, prosecution, and enforcement of all applicable
patents and for the expenses thereof.
6.4. TRANSFER OF RIGHTS. All rights not expressly licensed or
assigned by Aurora are retained by Aurora and no implied
licenses are conveyed herein or were conveyed before the
Effective Date. Except as otherwise expressly provided in this
Agreement, nothing in this Agreement is intended to convey or
transfer ownership by one party to the other of any rights,
title or interest in any Confidential Information, Technology,
copyrights or Patent Rights owned or Controlled by a party.
Except as expressly provided for in this Agreement, nothing in
this Agreement shall be construed as a license or sublicense
by one party to the other of any rights in any Technology,
copyrights, or Patent Rights owned or Controlled by a party.
6.5. INVENTORSHIP AND ASSIGNMENT. Inventorship of patentable
inventions shall be determined by U.S. patent law. GW and
Aurora *** Inventions, Technology and Patent Rights.
6.6. COPYRIGHTS. The parties agree to treat and handle, to the
maximum extent practical, any copyrights owned or Controlled
by a party in the same manner as Patent Rights owned or
Controlled by such party.
7. PRODUCT DEVELOPMENT, COMMERCIALIZATION AND DILIGENCE
7.1. *** development and commercialization of all compounds
discovered through GW's ***, and such development and
commercialization will be at GW's sole discretion.
8. CONFIDENTIALITY
8.1. CONFIDENTIAL INFORMATION. Except as expressly provided herein,
the parties agree
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that, for the term of this Agreement and *** years
thereafter, the receiving party shall keep completely
confidential and shall not publish or otherwise disclose to
another party and shall not use for any purpose other than
to perform the purposes contemplated by this Agreement any
Confidential Information furnished to it by the disclosing
party hereto pursuant to this Agreement, except that to the
extent that it can be established by the receiving party by
competent proof that such Confidential Information:
- was already known to the receiving party, other than
under an obligation of confidentiality, at the time
of disclosure;
- was generally available to the public or otherwise
part of the public domain at the time of its
disclosure to the receiving party;
- became generally available to the public or otherwise
part of the public domain after its disclosure and
other than through any act or omission of the
receiving party in breach of this Agreement;
- was lawfully disclosed to the receiving party by a
person other than a party hereto, or
- was independently developed by the receiving party
without the use of Confidential Information.
8.2. PERMITTED USE AND DISCLOSURES. Each party hereto may use or
disclose Confidential Information disclosed to it by the other
party to the extent such use or disclosure is (i) reasonably
necessary in filing or prosecuting patent applications,
prosecuting or defending litigation, (ii) complying with
applicable law, governmental regulation or court order, (iii)
submitting information to tax or other governmental
authorities, (iv) making a permitted sublicense or (v)
otherwise exercising its rights hereunder, provided that if a
party is required to make any such disclosure of another
party's Confidential Information, other than pursuant to
subsection (ii) hereof, it will give reasonable advance notice
to the latter party of such disclosure, and shall obtain the
prior written approval of said latter party, which approval
shall not be unreasonably withheld.
8.3 CONFIDENTIAL TERMS. Except as expressly provided herein, each
party agrees not to disclose any material or financial terms
of this Agreement to another party without the consent of the
other party, not to be unreasonably withheld; provided,
however, each party reserves the right to make reasonable
disclosures (including the redaction of material or financial
terms) as required by securities or other applicable laws, or
to actual or prospective investors or corporate partners
(including licensees and acquirers), or to accountants,
attorneys and other professional advisors on a need-to-know
basis under circumstances that reasonably ensure the
confidentiality thereof, or to the extent required by law. If
such Confidential Information is to become public information
by such disclosure the disclosing party must obtain the
written consent of the non-disclosing party in order to obtain
protection of the Confidential Information if necessary.
8.4. PRESS RELEASE. Notwithstanding the foregoing, the parties
agree that Aurora will make a press release to announce the
execution of this Agreement which shall be subject to prior
written approval of GW, such approval not to be unreasonably
withheld. Thereafter, GW and Aurora may each disclose to Third
Parties the information contained in the mutually agreed upon
press release without the need for further approval by the
other.
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9. TERM AND TERMINATION OF THE RESEARCH COLLABORATION
9.1. TERM. This Agreement shall commence on the Effective Date and
shall terminate on the date ***. The Collaborative Research
Program will terminate on *** by Aurora in accordance with
Section 3.3., or *** after the Effective Date, whichever is
first, unless extended by mutual written agreement of both
parties.
9.2. TERMINATION. Either party shall have the right to terminate
this Agreement at any time during the term for a material
breach of this Agreement by the other party, provided that the
non-breaching party shall have first given *** days prior
written notice (***days in the event of non-payment of any
amounts due under this Agreement) to the breaching party
describing such breach and stating the non-breaching party's
intention to terminate this Agreement if such breach remains
uncured, and the breaching party thereafter fails to cure same
within such *** day period (*** day period in the event of
non-payment of any amounts due under this Agreement).
9.3. TERMINATION *** this Agreement pursuant to Sections 3.1.1 or
3.1.2. All amounts paid by GW to Aurora under this Agreement
under Sections 5.1, 5.2 and 5.3 shall be nonrefundable.
9.4. EFFECT OF EXPIRATION OR TERMINATION. Except as otherwise
expressly provided in this Agreement, the rights and
obligations of the parties hereof shall terminate and be of no
further force or effect whatsoever upon any termination of
this Agreement under Section 9 hereof. Sections *** and ***,
hereof shall survive termination or expiration of this
Agreement. Upon expiration or other termination of the
Agreement all licenses granted will thereby terminate and
Materials will be destroyed or returned at the direction of
the parties within *** days.
10 MISCELLANEOUS
10.1. BINDING EFFECT; ASSIGNMENT. Except as otherwise provided
herein, neither this Agreement nor any interest hereunder will
be assignable in part or in whole *** may assign this
Agreement ***. This Agreement will be binding upon *** herein
will be deemed to *** to the extent necessary to carry out the
intent of this Agreement. Any assignment which is not in
accordance with this Section is void.
10.2. EFFECT OF WAIVER. No waiver of any default, condition,
provisions or breach of this Agreement shall be deemed to
imply or constitute a waiver of any other like default,
condition, provision or breach of this Agreement.
10.3. REPRESENTATIONS AND WARRANTIES OF AURORA AND GW. Each Party
hereby represents and warrants: Such party is duly organized
and validly existing and in good standing under the laws of
the state of its incorporation and has all requisite corporate
power and authority to enter into this Agreement and to carry
out the provisions hereof. Such party
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is duly authorized to execute and deliver this Agreement and
to perform its obligations hereunder. This Agreement is a
legal and valid obligation binding upon it and enforceable
in accordance with its terms. The execution, delivery and
performance of this Agreement by such party 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 law or regulation of any court,
governmental body or administrative or other agency having
jurisdiction over it.
10.4 ***
10.4.1. LIMITATION OF LIABILITY AND WARRANTY. NEITHER PARTY
SHALL BE LIABLE TO THE OTHER FOR ANY SPECIAL,
CONSEQUENTIAL, INCIDENTIAL, OR INDIRECT DAMAGES
ARISING OUT OF THIS AGREEMENT, HOWEVER CAUSED,
UNDER ANY THEORY OF LIABILITY. Except as expressly
set forth in this Agreement, Aurora MAKES NO
REPRESENTATIONS AND EXTENDS NO WARRANTIES OF ANY
KIND, EITHER EXPRESS OR IMPLIED. THERE ARE NO
EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE, OR THAT THE
USE OF THE LICENSED PRODUCTS OR SERVICES WILL NOT
INFRINGE ANY PATENT, COPYRIGHT, TRADEMARK, OR
OTHER RIGHTS OR ANY OTHER EXPRESS OR IMPLIED
WARRANTIES.
10.4.2. ***
10.4.3. ***
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10.5. FORCE MAJEURE. Neither party shall lose any rights hereunder
or be liable to the other party for damages or losses (except
for payment obligations) on account of failure of performance
by the defaulting party if the failure is occasioned by war,
strike, fire, act of God(s), earthquake, flood (including El
Nino and La Nina), lockout, embargo and governmental acts or
orders or restrictions.
10.6. AMENDMENT. No modification, supplement to or waiver of this
Agreement or any Addendum hereto or any of their provisions
shall be binding upon a party hereto unless made in writing
and duly signed by an authorized representative of both GW and
Aurora. In no event may the terms of this Agreement be
changed, deleted, supplemented or waived by any notice,
purchase order, receipt, acceptance, xxxx of lading or other
similar form of document. A failure of either party to
exercise any right or remedy hereunder, in whole or in part,
or on one or more occasions, shall not be deemed either a
waiver of such right or remedy to the extent not exercised, or
of any other right or remedy, on such occasion, or a waiver of
any right or remedy on any succeeding occasion.
10.7. ENTIRE AGREEMENT. This Agreement and each supplemental written
agreement contemplated hereunder, sets forth the entire
understanding and agreement of the parties as to the subject
matter thereof, and there are no other understandings,
representations or promises, written or verbal, not set forth
herein or on which either party has relied. If any provisions
of any such Addendum or supplemental written agreement
conflict with any provisions set forth in this Agreement, the
provisions of this Agreement shall take precedence, unless
such Addendum or supplemental written agreement expressly
refers to the specific provision(s) of this Agreement that it
is intended to replace or modify (and which shall be limited
in force and effect to such Addendum or supplemental written
agreement only).
10.8. NOTICES. All Notices under this Agreement shall be given in
writing and shall be addressed to the parties at the following
addresses:
***
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Glaxo Wellcome House West,
Berkeley Avenue,
Greenford, Middlesex UB6 ONN,
United Kingdom
FOR AURORA:
Xxxxx Xxxxxx, Ph.D.
Senior Vice President Commercial Development
Aurora Biosciences Corporation
00000 Xxxxxxxxx Xxxx
Xxx Xxxxx, XX. 00000
COPIES TO:
Xxxx X. Xxxxxxxx, Ph.D., X.X.
Senior Vice President, Intellectual Property
and Chief Knowledge Officer
Aurora Biosciences Corporation
00000 Xxxxxxxxx Xxxx
Xxx Xxxxx, XX. 00000
Notices shall be in writing and shall be deemed delivered when
received, if delivered by a courier, or on the second business day
following mailing, if sent by first-class certified or registered
mail, postage prepaid.
10.9. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of California as those laws
apply to California residents, without regard or giving effect to its
principles of conflict of laws. Resolution of any disputes will be
decided in California.
10.10. THIRD PARTY BENEFICIARIES. This Agreement and the rights and
obligations created hereunder are for the sole benefit of the parties
hereto and their respective successors or assigns as may be permitted
under the terms of this Agreement. By entering into this Agreement,
the parties agree that they are not creating and do not intend to
create implied or incidental rights inuring to the benefit of Third
Parties.
10.11. SEVERABILITY. This Agreement is intended to be severable. If any
provision(s) of this Agreement are or become invalid, are ruled
illegal by a court of competent jurisdiction or are deemed
unenforceable under the current applicable law from time to time in
effect during the term hereof, it is the intention of the parties that
the remainder of the Agreement shall not be affected thereby and shall
continue to be construed to the maximum extent permitted by law at
such time. It is further the intention of the parties that in lieu of
each such provision which is invalid, illegal, or unenforceable, there
shall be substituted or added as part of this Agreement by such court
of competent jurisdiction a provision which shall be as similar as
possible, in economic and business objectives as intended by the
parties to such invalid, illegal or unenforceable provision, but shall
be valid, legal and enforceable.
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10.12. HEADINGS. Captions and paragraph headings are for convenience only
and shall not form an interpretative part of this Agreement. Unless
otherwise specifically provided, all references to a Section
incorporate all Sections or subsections thereunder. This Agreement
shall not be strictly construed against either party hereto and maybe
executed in two (2) or more counterparts, each of which will be deemed
an original and the same instrument. Counterparts may be signed and
delivered by facsimile, each of which shall be binding when sent, and
in each case an original shall be sent via overnight courier. This
Agreement will not be enforceable and shall have no effect if this
Agreement is not executed ***.
IN WITNESS WHEREOF, the parties have executed, by duly authorized
representatives, this Agreement:
For Glaxo Group Limited For Glaxo Research and
Development Limited
By: /s/ XX Xxxxxxxx By: /s/ XX Xxxxxxxx
---------------------------- ----------------------------
Date: 15 December 1999 Date: 15 December 1999
-------------------------- -------------------------
Name: XX Xxxxxxxx Name: XX Xxxxxxxx
-------------------------- ------------------------
Title: Assistant Secretary Title: Assistant Secretary
------------------------- -----------------------
For Aurora Biosciences Corporation
By: /s/ Xxxxxxx X. Xxxx
---------------------------------------
Date: 12/15/99
------------------------------------
Name: Xxxxxxx X. Xxxx
------------------------------------
Title: Vice President Business Development
-----------------------------------
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EXHIBIT A
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EXHIBIT B
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EXHIBIT C
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ATTACHMENT 1
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