Exhibit 10.12
ALLIANCE AGREEMENT
This Alliance Agreement (the "Agreement") is made and dated this 2nd day of
August, 1999, between Covance Inc., a Delaware corporation ("Covance"), and
Variagenics, Inc., a Delaware corporation ("Variagenics").
Background
A. Covance and its Affiliates provide, among other products and services,
central laboratory services to Sponsors.
B. Variagenics, directly and through its Affiliates, identifies clinically
important variances in genes that affect drug action and applies this
information to the discovery and development of new drugs, and intends to
provide Variagenics Lab Services as more fully described in this Agreement.
C. Covance and Variagenics desire to form an alliance (the "Alliance") as more
fully described in this Agreement.
D. For convenience of reference, capitalized terms used herein have the meanings
listed in Exhibit A.
Terms
NOW, THEREFORE, in consideration of the foregoing premises, and other valuable
consideration, the sufficiency and receipt of which are hereby acknowledged, the
parties agree as follows:
1. Purpose.
The purpose of the Alliance is to facilitate the development of
Variagenics Know-How by Variagenics and its Affiliates, and the license of
Variagenics Know-How to Covance. The intent of the Alliance is for Covance and
its Affiliates to use the Variagenics Know-How to provide Pharmacogenomic Lab
Services to Contracting Sponsors, and for Variagenics to use the Variagenics
Know-How to provide Variagenics Lab Services to Contracting Sponsors. To
facilitate the foregoing, Covance is licensing certain Covance Know-How to
Variagenics, and Covance and Variagenics are agreeing to certain provisions
regarding the sale of Pharmacogenomic Lab Services and Variagenics Lab Services.
2. Technology Transfer.
(a) License of Variagenics Know-How. (i) Variagenics hereby grants to
Covance a non-exclusive, worldwide license to the Variagenics Know-How solely
for use to provide
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential treatment under Rule 406 of the Securities Act.
Pharmacogenomic Lab Services as expressly permitted by this Agreement. During
the Term, Variagenics shall provide to Covance such reasonable materials and
support as are necessary to effect this license and to enable Covance to use the
Variagenics Know-How to provide Pharmacogenomic Lab Services, including, without
limitation, support from the Employees and the FTEs. Covance shall pay to
Variagenics a royalty for such license as provided in Section 2(c) (subject to
the other provisions in this Agreement with respect thereto), and shall promptly
pay to Variagenics all reasonable out-of-pocket expenses incurred in effecting
such license. Covance shall have no right to sublicense the Variagenics Know-How
except to its Affiliates who expect to provide Pharmacogenomic Lab Services,
which Affiliates shall have no further right to sublicense the Variagenics
Know-How.
(ii) Subject to continued payment of royalties pursuant to Section
2(c), the license provided for in Section 2(a)(i) shall survive any termination
of this Agreement, but only for (a) Variagenics Alliance Know-How in existence
on the date of such termination of this Agreement, (b) Variagenics Know-How
which had been marketed by Covance and its Affiliates at any time on or prior to
the date of such termination of this Agreement, and (c) other Variagenics
Know-How in existence at any time on or prior to the date of such termination of
this Agreement to the extent necessary to practice the license set forth in
clauses (a) and (b). The foregoing notwithstanding, Covance shall have the right
at any time after the termination of this Agreement, upon six (6) months' prior
written notice to Variagenics, to terminate the license provided for in this
Section 2(a) and the obligation to pay royalties pursuant to Section 2(c). In
the event of such termination of the license, and except as necessary to satisfy
obligations to Contracting Sponsors and the requirements of any applicable law,
rule or regulation, Covance will return to Variagenics or destroy all
embodiments of Variagenics Know-How in the possession of Covance or its
Affiliates.
(b) License of Variagenics Gene Rights. (i) Variagenics will license
Variagenics Gene Rights to a Contracting Sponsor for use in a specific Product
Development Program as needed by Covance and its Affiliates to perform
Pharmacogenomic Lab Services for such Contracting Sponsor, and such Contracting
Sponsor shall have the right to sublicense such Variagenics Gene Rights to
Covance and its Affiliates solely for use by Covance and its Affiliates to
provide Pharmacogenomic Lab Services to such Contracting Sponsor for such
Product Development Program. Covance and its Affiliates shall not be obligated
to pay any royalty to Variagenics in connection with any such sublicense.
(ii) The parties may, from time to time, discuss the possible
licensing of Variagenics Gene Rights to Covance and its Affiliates for use by
Covance and its Affiliates to provide Pharmacogenomic Lab Services using
Variagenics Gene Rights to Contracting Sponsors that do not have a license from
Variagenics for such Variagenics Gene Rights. Any such license will be on such
terms as the parties may agree from time to time. Neither party shall have any
obligation to enter into any such license.
(c) Royalty. Covance shall pay to Variagenics a royalty equal to
[ ](the "Variagenics Fees"). Variagenics acknowledges that in entering into
this Agreement Covance is not guaranteeing to Variagenics [ ] of
Variagenics Fees. For purposes of this Section 2(c), "proprietary" technology
shall mean Variagenics Know-How which Variagenics or
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any of its Affiliates owns or which is licensed to Variagenics or any of its
Affiliates or with respect to which Variagenics or any of its Affiliates has an
existing patent application or patent, and in each case which Variagenics or any
of its Affiliates has an exclusive right or license to use and has not granted a
right or license with respect thereto to any party other than Covance, except
for (i) any right to use for noncommercial purposes retained by academic
institutions, (ii) any right or license granted for purposes other than
Pharmacogenomic Lab Services, and (iii) any right or license granted to a
Sponsor in connection with a specific Product Development Program to obtain
Pharmacogenomic Lab Services using such Variagenics Know-How from any central
laboratory of the Sponsor's choice or for the Sponsor to use itself; and
"nonproprietary" technology shall mean all other Variagenics Know-How. The
foregoing notwithstanding, [ ] royalty shall be payable with respect to Net
Sales which are subject to royalty solely because of the use of Variagenics
Know-How which is (i) non-proprietary technology and which is also licensed to
Covance or any of its Affiliates by a third party, or (ii) also licensed to the
Sponsor to which such Net Sales relate, provided in each case such Net Sales are
not subject to royalty because of the use of any other Variagenics Know-How
(collectively, "Excluded Net Sales"). The determination of whether specific
Variagenics Know-How constitutes "proprietary" or "non-proprietary" technology
shall be made by the Committee. If the Committee is unable to resolve such
issue, the matter shall be resolved in accordance with Section 19. The
obligation to pay the Variagenics Fees shall survive any termination of this
Agreement and shall apply to Net Sales using Variagenics Know-How made during
the Term and, subject to Section 2(a)(ii), after termination of this Agreement.
(d) License of Covance Know-How. In order to assist Variagenics in
providing Variagenics Lab Services for the purposes described in the next
succeeding sentence, Covance shall license to Variagenics such Covance Know-How
as the parties may mutually agree, which license shall be a non-exclusive,
worldwide license of the Covance Know-How. The parties agree that the Covance
Know-How to be licensed may include the Covance Know-How set forth in Exhibit B
hereto. Any such Covance Know-How shall be used by Variagenics solely to enable
Variagenics to assist Covance in providing Pharmacogenomic Lab Services and to
enable Variagenics to provide Variagenics Lab Services, in each case as
expressly permitted by this Agreement. Variagenics and its Affiliates to which
Variagenics is permitted to sublicense such Know-How as set forth below shall
have the right to use Covance Know-How and Standard Operating Procedures in the
areas of data or information handling, management, reporting, processing and
control throughout their business, and, in addition, Variagenics shall have the
right to use the Covance Know-How for such other purposes as the parties may
mutually agree. [ ] shall be payable in connection with such license, but
Variagenics shall promptly pay to Covance all reasonable out-of-pocket expenses
incurred in effecting such license. Variagenics shall have no right to
sublicense the Covance Know-How except to any wholly-owned subsidiary of
Variagenics, which Affiliates shall have no further right to sublicense the
Covance Know-How. Variagenics and such Affiliates shall not disclose or promote
to any third party that they are using any Covance Know-How. Upon the
termination of the license provided for in this Section 2(d), and except as
necessary to satisfy obligations to Contracting Sponsors and the requirements of
any applicable law, rule or regulation, Variagenics will return to Covance or
destroy all embodiments of Covance Know-How in the possession of Variagenics or
its Affiliates.
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3. Employees and FTEs. In order to fully support the continued development of
Variagenics Alliance Know-How and the Alliance:
(a) Employees. Covance will fund [ ] full-time employees
("Employees") at a rate of $[ ] per year per Employee, which Employees will
be employees of Variagenics. Payment for each such Employee will be made
quarterly ($[ ]), beginning on the date each such Employee becomes fully
dedicated to supporting the Alliance. The Employees will be under the control of
Variagenics but shall be at all times fully dedicated to supporting the
Alliance. Variagenics will use its commercially reasonable efforts to have
Employees fully dedicated to supporting the Alliance as soon as practicable
after execution of this Agreement. Variagenics shall promptly provide to Covance
the names of such Employees. If any such Employee ceases being fully dedicated
to supporting the Alliance for any reason, Variagenics shall promptly notify
Covance of such event and use its commercially reasonable efforts to replace any
such Employee as soon as possible, including the reassignment of other
Variagenics employees. The foregoing notwithstanding, the obligation of Covance
to provide the funding specified in this Section 3(a) shall be abated (and an
appropriate credit or refund shall be made) when and for as long as an Employee
position is not filled.
(b) Variagenics FTEs. (i) As soon as practicable following execution of
this Agreement, Variagenics will fund and provide [ ] ("FTE") who shall, in
the aggregate, be fully dedicated to supporting the Alliance at a level
equivalent to the effort of one full-time individual. This FTE will be
employee(s) of Variagenics and under the control of Variagenics.
(ii) As soon as practicable following satisfaction of the conditions
set forth in Section 3(d)(ii), Variagenics will fund and provide [ ] who
shall, in the aggregate, be fully dedicated to supporting the Alliance at a
level equivalent to the effort of [ ]. [ ] FTE will be employee(s) of
Variagenics and under the control of Variagenics.
(iii) Variagenics shall promptly provide to Covance the names of all
persons providing services as part of these FTEs and the percentage of their
time being dedicated to the Alliance. If the required number of FTEs cease being
fully dedicated to supporting the Alliance for any reason, Variagenics shall
promptly notify Covance of such event and use its commercially reasonable
efforts to replace such support as soon as possible, including the reassignment
of other Variagenics employees. The obligation of Covance to provide the funding
required by Section 3(a) shall be abated (and an appropriate credit or refund
shall be made) when, for as long as and to the extent the appropriate number of
FTEs are not fully supporting the Alliance. For purposes of illustrating the
foregoing concept, if Variagenics is required to fund and provide one (1) FTE
and only .50 FTE is fully dedicated to supporting the Alliance, then Covance's
obligations under Section 3(a) during the period when only .50 FTE is supporting
the Alliance shall be reduced by twenty-five percent (25%); and if Variagenics
is required to fund and provide two (2) FTEs and only 1.5 FTE is fully dedicated
to supporting the Alliance, then Covance's obligations under Section 3(a) during
the period when only 1.5 FTEs are supporting the Alliance shall be reduced by
twenty-five percent (25%). Under any circumstance, Variagenics shall be
responsible for providing the funding for the two Employees during any period
and to the extent Covance is not obligated to do so pursuant to this Section
3(a)(iii).
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(c) Covance FTEs. Upon satisfaction of the conditions set forth in the
first sentence of Section 3(d)(i), or sooner if Covance elects in its sole
judgment, Covance will provide to Variagenics an advance to fund [ ] at a
rate of $[ ] per year per FTE. These advances will be made quarterly
($[ ]), beginning on the date each person who is part of such FTEs becomes
dedicated to supporting the Alliance, or on a pro rata basis to the extent that
fewer than [ ] FTEs are dedicated to supporting the Alliance; provided, however,
that Covance will not be obligated to provide any advance under this Section
3(c) unless at least [ ] FTE is dedicated to supporting the Alliance under
this Section 3(c). Variagenics will use its commercially reasonable efforts to
have these [ ] FTEs fully dedicated to supporting the Alliance as soon as
practicable after the satisfaction of the conditions set forth in Section
3(d)(i), or Covance's election, whichever is earlier. These advances shall be
repaid by Variagenics to Covance either, at Covance's election, by payment by
Variagenics to Covance in an amount equal to the sum of the Variagenics
Non-Alliance Fees and one-half of the Variagenics Fees (such payment to Covance
to be made within seven (7) days of the payment by Covance to Variagenics of the
Variagenics Fees and the Variagenics Non-Alliance Fees), or by the retention by
Covance of the Variagenics Non-Alliance Fees and one-half of the Variagenics
Fees otherwise payable to Variagenics. Variagenics shall promptly provide to
Covance the names of all persons providing services as part of these FTEs and
the percentage of their time being dedicated to the Alliance. If the required
number of FTEs cease being fully dedicated to supporting the Alliance for any
reason, Variagenics shall promptly notify Covance of such event and use its
commercially reasonable efforts to replace such support as soon as possible,
including the reassignment of other Variagenics employees. The foregoing
notwithstanding, the obligation of Covance to provide the advances specified in
this Section 3(c) shall be abated (and an appropriate credit or refund shall be
made) when, for as long as and to the extent these FTE positions are not filled.
(d) Conditions. (i) Covance's obligation under Section 3(c) shall not
begin until (A) the aggregate Net Sales of Pharmacogenomic Lab Services by
Covance and its Affiliates using Variagenics Know-How under the Alliance, plus
such Net Sales (without regard to receipt of payment) expected to be made under
signed agreements with Contracting Sponsors under the Alliance (in all cases net
of cancellations and modifications), but excluding Excluded Net Sales
("Cumulative Alliance Net Sales"), equals or exceeds $[ ], and (B) Covance
and its Affiliates have entered into signed agreements with Contracting Sponsors
to provide Pharmacogenomic Lab Services using Variagenics Know-How involving at
least [ ] Product Development Programs with respect to [ ]different
drugs, but excluding Excluded Net Sales. (For purposes of illustrating the
foregoing concepts, if Covance's Net Sales under agreements with Contracting
Sponsors have totaled $[ ], Net Sales expected under signed agreements with
Contracting Sponsors total $[ ], and Covance signs an additional agreement
with a Contracting Sponsor which, by its terms, is expected to generate
$[ ] or more of Net Sales for Covance, then, assuming the requirement in
clause (B) in the previous sentence has also been satisfied, Covance's
obligation under Section 3(c) shall begin). In addition, Covance may elect in
its sole judgment to provide the advances as provided for in Section 3(c) at
anytime. If Covance is not obligated pursuant to this Section 3(d)(i) to begin
providing the advances provided for in Section 3(c) by the first anniversary of
the date of this Agreement, and Covance has not elected to begin providing such
advances on or prior to such date, then Variagenics shall have the right,
exercisable by written notice to Covance within forty-five (45) days after such
first anniversary
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date, to terminate this Agreement thirty (30) days after the notice is given,
and there shall be no liability to Covance in connection with or as a result of
such termination. After such forty-five (45) days, Variagenics shall have no
right to terminate this Agreement pursuant to this Section 3(d).
(ii) Variagenics' obligation to fund its [ ] under Section
3(b)(ii) shall begin upon the earlier to occur of (A) the aggregate of the Net
Sales of Variagenics Lab Services by Variagenics and its Affiliates under the
Alliance, plus such Net Sales (without regard to payment) expected to be made
under signed agreements with Contracting Sponsors, equaling or exceeding
$[ ] and (B) the earlier to occur of the satisfaction of the conditions set
forth in the first sentence of Section 3(d)(i) and Covance's election to provide
the advances as provided for in Section 3(c).
(e) Renewal. (i) (A) The obligation to provide funding and advances
contained in this Section 3 shall continue for a two-year period from the date
of this Agreement and shall be continued for a three-year period thereafter if
Cumulative Alliance Net Sales by Covance and its Affiliates at the end of such
two-year period are at least $[ ]. In addition, Covance may elect in its
sole judgment to continue providing such funding and advances at the same level
as in effect at the end of such two-year period. If the $[ ] amount set
forth in the second preceding sentence is not achieved at the end of such
two-year period, the parties will attempt to agree upon a mutually acceptable
lower level of funding during such three-year period, as determined in their
respective sole judgment. If such Cumulative Alliance Net Sales at the end of
such two-year period are not at least $[ ], the parties have not agreed
upon a mutually acceptable lower level of funding after such two-year period,
and Covance has not elected to continue such funding and advances at the same
level as in effect at the end of such two-year period, then Variagenics shall
have the right, exerciseable by written notice to Covance within forty-five (45)
days after the end of such two-year period, to terminate this Agreement thirty
(30) days after the notice is given, and there shall no liability to Covance in
connection with or as a result of such termination. After such forty-five (45)
days, Variagenics shall have no right to terminate this Agreement pursuant to
this Section 3(e).
(B) After the fifth anniversary of the date of this Agreement,
any funding obligation then in effect shall be continued for additional one-year
periods unless Covance or Variagenics gives written notice to the other of
termination of the obligations to provide funding and advances contained in this
Section 3 at least one hundred and twenty (120) days prior to the expiration of
the then-current period.
(ii) The expiration of the obligation to provide funding and
advances contained in this Section 3 shall not eliminate the obligation of
Variagenics to repay advances as provided in Section 3(c). The conditions to
funding and advances provided for in this Section 3(e) are in addition to the
conditions to funding and advances contained elsewhere in this Agreement.
(f) Positions. All individuals serving as Employees and FTEs shall, in
supporting the Alliance, serve in scientific or data processing positions, or
positions administering scientific information or data, and in all cases shall
be developing Variagenics Alliance Know-How and
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effecting the license provided for in Section 2(a), and shall have sufficient
scientific, data processing or related training, experience and education so as
to permit them to be productive for such purpose in a reasonable timeframe.
Without limiting the foregoing, individuals serving as Employees and FTEs shall
not be secretaries, administrative assistants or other non-technical or
non-scientific personnel. Covance shall have the right to request that specific
employees of Variagenics serve as Employees or FTEs, and Variagenics shall give
good faith consideration to making these employees available to so serve. Prior
to any individual serving as an Employee or FTE, Variagenics will send to
Covance the curriculum vitae of such individual, and Covance shall have the
right in its reasonable discretion to promptly object to any such individual
serving as an Employee or FTE, in which case such individual shall not so serve.
In addition, Covance shall have the right to request that any individual serving
as an Employee or FTE no longer so serve, if in Covance's reasonable judgment,
such individual does not meet the requirements of this Section 3(f) or is
otherwise not performing in the best interests of the Alliance.
(g) No Limitations. The provisions contained in Sections 3(a), (b), and
(c) abating Covance's obligation to provide funding and advances are not
intended to and shall not limit any other rights or remedies Covance or
Contracting Sponsors may have as a result of a breach by Variagenics of its
obligations contained in those Sections.
4. Assay Delivery. Variagenics agrees to use all reasonable efforts to deliver
to Covance fully validated genotyping assays of the type and by the delivery
date set forth in Exhibit C hereto. The foregoing obligations may be amended by
unanimous vote of the Committee. If Variagenics fails to deliver any fully
validated assay as set forth in Exhibit C (including as Exhibit C may be amended
by the Committee from time to time), then Covance shall have the right,
exerciseable by written notice to Variagenics within forty-five (45) days after
such failure, to terminate this Agreement thirty (30) days after the notice is
given, and there shall no liability to Variagenics in connection with or as a
result of such termination.
5. Provision of Services.
(a) Services. If Covance or any of its Affiliates shall desire Variagenics
or any of its Affiliates to provide Variagenics Lab Services to a Sponsor, then
Covance or its Affiliates will provide Variagenics with the specifications for
the Variagenics Lab Services to be performed and Variagenics will prepare a
Price Quotation in response thereto within ten (10) business days of the
delivery of the specifications to Variagenics (or such shorter timeframe as may
be necessary to satisfy the requirements of the Sponsor); provided, that
Variagenics shall be under no obligation to deliver a Price Quotation if
providing such Price Quotation is prohibited by any written agreements of
Variagenics with third parties in effect prior to the date of this Agreement and
Variagenics delivers a letter to Covance to such effect within such ten (10)
business days. These Price Quotations will be binding upon Variagenics or its
Affiliates which provide such Price Quotation. For each Price Quotation
submitted by Variagenics or any of its Affiliates to Covance or any of its
Affiliates with respect to which Covance or such Affiliate desires Variagenics
or its applicable Affiliates to perform Variagenics Lab Services, Covance or
such Affiliate and Variagenics or such Affiliates shall promptly enter into an
IPA.
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(b) Compliance. In performing Variagenics Lab Services under this
Agreement or any IPA, Variagenics and its Affiliates will, at their own cost and
expense, comply with Covance Standard Operating Procedures and with all present
and future applicable laws, rules and regulation in effect from time to time. If
Variagenics or any of its Affiliates is subjected to an on-site inspection or if
any inquiries which have a bearing on Variagenics Lab Services under this
Agreement are made by any government agencies, Variagenics will notify Covance
immediately. Variagenics shall also notify Covance immediately (i) if for any
reason it or any of its Affiliates is disqualified by a government regulatory
agency or (ii) of any events or circumstances which can affect the Variagenics
Lab Services under this Agreement.
(c) Payments to Covance. For all Variagenics Lab Services performed by
Variagenics or any of its Affiliates (i) independent of any Pharmacogenomic Lab
Services provided by Covance or any of its Affiliates and with respect to which
Covance or any of its Affiliates has (A) initiated contact between Variagenics
and the Contracting Sponsor, (B) made a proposal on behalf of Variagenics, (C)
joined a sales process initiated by Variagenics at the request of Variagenics,
and/or (D) assisted Variagenics in approaching a Contracting Sponsor or
establishing the contract for the Variagenics Lab Services with the Contracting
Sponsor or (ii) as part of a package consisting of Variagenics Lab Services
provided by Variagenics or any of its Affiliates and Pharmacogenomic Lab
Services provided by Covance or any of its Affiliates arranged for together
between Covance or any of its Affiliates and a Sponsor, Variagenics shall pay to
Covance a fee equal to [ ](the "Covance Fees"). Variagenics acknowledges
that in entering into this Agreement Covance is not guaranteeing a minimum
amount of Net Sales which will generate Covance Fees. Covance acknowledges that
in entering into this Agreement, Variagenics is not guaranteeing to Covance any
minimum amount of Covance Fees.
(d) Audits. Variagenics and its Affiliates shall permit Covance or any of
its Affiliates and any Contracting Sponsor to audit their facilities, books and
records (including access to its personnel) for any reason in connection with
this Agreement. Apart from extenuating circumstances, Covance, its Affiliates or
the Contracting Sponsor, as applicable, shall provide Variagenics with
reasonable advance written notice of when the audit is to be conducted and such
audit will be held during Variagenics' regular business hours. Variagenics will
assist Covance, its Affiliates or the Contracting Sponsor in scheduling such
audits. Variagenics agrees to expediently address any deficiencies determined
within 30 days of such determination.
(e) Equipment. In order to facilitate the efficient operation of the
Alliance, Covance and Variagenics will cooperate to integrate their equipment
and procedures, including, without limitation, sample handling, sample tracking,
result reporting systems, and laboratory testing equipment, each at its own
expense. Subject to Sections 2(d) and 5(b) above, if Covance requires
Variagenics to utilize particular equipment, hardware or software, Covance will
lend such equipment, hardware or software to Variagenics, or otherwise make it
available to Variagenics at [ ].
(f) Covance Services. If Variagenics or any of its Affiliates shall desire
Covance or any of its Affiliates to provide Pharmacogenomic Lab Services under
this Agreement to a prospective Contracting Sponsor, other than a prospective
Contracting Sponsor to whom Covance or its Affiliates has marketed or provided
Pharmacogenomic Lab Services, as part of a
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package consisting of Variagenics Lab Services provided by Variagenics or any of
its Affiliates and Pharmacogenomic Lab Services provided by Covance or any of
its Affiliates arranged for together between Variagenics or any of its
Affiliates and a prospective Contracting Sponsor, then Variagenics or its
Affiliates will provide Covance with the specifications for the Pharmacogenomic
Lab Services to be performed and Covance will prepare a Price Quotation in
response thereto within ten business days of the delivery of the specifications
to Covance (or such shorter timeframe as may be necessary to satisfy the
requirements of the prospective Contracting Sponsor). These Price Quotations
will be binding upon Covance or its Affiliates which provide such Price
Quotation. For each Price Quotation submitted by Covance or any of its
Affiliates to Variagenics or any of its Affiliates with respect to which
Variagenics or such Affiliate desires Covance or its applicable Affiliates to
perform Pharmacogenomic Lab Services, Variagenics or such Affiliate and Covance
or such Affiliate shall promptly enter into an IPA. The foregoing
notwithstanding, Covance and its Affiliates shall not be obligated to provide a
Price Quotation or perform any Pharmacogenomic Lab Services if prohibited by
agreements with third parties (whether entered into prior to or after the date
of this Agreement), as determined by Covance in its sole judgment. Nothing
contained herein shall preclude Covance and its Affiliates from providing
Pharmacogenomic Lab Services not arranged by Variagenics.
(g) Variagenics Identification. Covance and its Affiliates will identify
to a Sponsor for whom they are performing Pharmacogenomic Lab Services that
utilizes Variagenics Know-How (other than any such services which are Excluded
Net Sales), that Variagenics is the source of the technology used in such
Pharmacogenomic Labs Services. Such identification shall be in a form as will be
mutually agreed upon by Covance and Variagenics. The foregoing obligation shall
not apply if making such an identification is prohibited by the Sponsor or the
Sponsor requests that such an identification not be made. Except as provided in
this Section 5(g), and anything in this Agreement to the contrary
notwithstanding, Covance shall be under no obligation to engage in any marketing
activities for Variagenics.
(h) Contract Protections. Anything in Sections 5(a) and 5(f) to the
contrary notwithstanding, the obligation of Covance or Variagenics, or their
Affiliates, to enter into any IPA shall be subject to the receipt by such party
of the benefit of such contractual provisions (whether as a third party
beneficiary or otherwise), as such party shall determine in its sole judgment as
are necessary to protect its interests.
(i) Non-Alliance Sales. Covance shall pay to Variagenics a fee equal to
[ ] ("Variagenics Non-Alliance Fees"). The foregoing notwithstanding, no
Variagenics Non-Alliance Fees shall be payable by Covance to Variagenics with
respect to any Sponsor to which Covance or its Affiliates has marketed or is
marketing the service which generated the applicable Net Sales independent of
the contact initiated by Variagenics. Covance acknowledges that in entering into
this Agreement Variagenics is not guaranteeing a minimum amount of Net Sales as
described in this Section 5(i). Variagenics acknowledges that in entering into
this Agreement Covance is not guaranteeing to Variagenics any minimum amount of
Variagenics Non-Alliance Fees and is not agreeing that it will perform any of
the services indicated on Exhibit D for any Sponsor.
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6. Advisory Committee. Promptly after execution of this Agreement, Variagenics
and Covance shall establish an Advisory Committee (the "Committee"), which shall
consist of two representatives of each of the parties or such other number as
the parties may mutually agree. The purpose of the Committee shall be to
determine the nature and scope of services to be subject to the Alliance, and
address such other matters as the parties may mutually agree. Each of
Variagenics and Covance shall bear the expenses for their members' participation
in the Committee, including any travel costs.
7. Fees.
(a) Variagenics Fees and Variagenics Non-Alliance Fees. Covance shall send
to Variagenics a statement within thirty (30) days after the end of each
calendar quarter of the Net Sales during such quarter with respect to which
Variagenics is entitled to a Variagenics Fee and a Variagenics Non-Alliance Fee
and the Variagenics Fees and Variagenics Non-Alliance Fees therefor, accompanied
by payment of such Fees (which may be by wire transfer). The foregoing
notwithstanding, Covance shall have the right to withhold from any payment to
Variagenics the amounts to be applied to the repayment of advances provided for
in Section 3(c).
(b) Covance Fees. Variagenics shall send to Covance a statement within 30
days after the end of each calendar quarter of the Net Sales during such quarter
with respect to which Covance is entitled to a Covance Fee and the Covance Fees
therefor, accompanied by payment of such Covance Fees (which may be by wire
transfer).
(c) Disputes. All such statements shall include reasonable detail as to
the services provided, and shall be certified by an officer of the party to be
correct to the best of such party's knowledge and information. Any objection to
such Fees shall be given in writing by the objecting party within 30 days after
such statement has been sent and shall include a statement as to the basis of
any such objection. The parties shall attempt in good faith to resolve such
objections. If the parties are unable to resolve such objections within 30 days
of receipt by the applicable party of such objection, then the dispute shall be
resolved in accordance with the provisions of Section 19.
(d) Termination. The obligation to pay Variagenics Non-Alliance Fees and
Covance Fees shall survive any termination of this Agreement, but only with
respect to applicable written agreements pursuant to which such Fees will be
generated entered into prior to any termination of this Agreement. No
Variagenics Non-Alliance Fees or Covance Fees shall be payable with respect to
agreements entered into after any such termination.
8. Exclusivity. During the Term, Variagenics and its Affiliates shall not,
directly or indirectly, either alone or in conjunction with any other person or
entity, (i) enter into any alliance, partnership, joint venture, distribution or
similar arrangement or agreement with any person or entity for the purpose of
providing Pharmacogenomic Lab Services or (ii) license any Variagenics Know-How
to any person or entity for the purpose of providing Pharmacogenomic Lab
Services, except as set forth in the next sentence. Variagenics and its
Affiliates may, however, license Variagenics Know-How to a Sponsor in connection
with a specific Product Development Program to obtain Pharmacogenomic Lab
Services using such Variagenics Know-
10
How from any central laboratory of the Sponsor's choice or for the Sponsor to
use itself. In addition, during the Term, Variagenics and its Affiliates shall
not, directly or indirectly, provide Pharmacogenomic Lab Services to a Sponsor
for a specific Product Development Program, unless (i) Variagenics has offered
Covance and its Affiliates the opportunity to provide the Pharmacogenomic Lab
Services for such Product Development Program and they have declined to provide
such services or Covance and its Affiliates do not have the necessary technology
or intellectual property rights or otherwise cannot meet the Sponsor's
specifications for such services, (ii) the Sponsor does not wish to acquire the
Pharmacogenomic Lab Services for such Product Development Program from Covance
or its Affiliates, (iii) Covance or its Affiliates are marketing or performing
substantially similar Pharmacogenomic Lab Services which do not utilize
Variagenics Know-How, or (iv) such Pharmacogenomic Lab Services are furnished
pursuant to a written proposal or agreement which is disclosed on Exhibit E, all
of which predate this Agreement; provided, that in the case of clause (i),
Variagenics' right to perform such services shall only apply if the
Pharmacogenomic Lab Services are performed by Variagenics on substantially the
same terms as the specifications last provided to Covance prior to Covance's
declining to provide such services or Covance's decision that it does not have
the necessary technology or rights or cannot meet such specifications. In
addition, except as may be mutually agreed to by the parties, during the Term,
Variagenics and its Affiliates shall not, directly or indirectly, provide
Pharmacogenomic Lab Services to any person or entity which is not a "Sponsor" as
provided in the definition thereof. No Employees or FTEs may be used by
Variagenics or its Affiliates to provide such Pharmacogenomic Lab Services.
9. Representations; Covenants.
(a) Variagenics Representations. Variagenics represents and warrants to
Covance that: it is duly organized, validly existing and in good standing under
the laws of the State of Delaware; it has taken all actions necessary to secure
all approvals required to be secured by it in connection with the transactions
contemplated hereby; the execution, delivery and performance of this Agreement
has been duly authorized by all necessary corporate, shareholder and other
action; this Agreement has been duly executed and delivered and constitutes its
legal, valid and binding obligation, enforceable against it in accordance with
its terms; the execution, delivery and performance of this Agreement does not
violate any agreement to which it is a party or by which it is bound or any law,
order or decree applicable to it, or any provision of its charter documents or
bylaws; no third party has asserted in writing to Variagenics that the
Variagenics Know-How infringes upon any intellectual property rights that are
owned or claimed by such third party, and to the best knowledge of Variagenics,
the Variagenics Know-How does not infringe upon any intellectual property rights
that are owned or claimed by any third party; and it shall obtain and shall
maintain in full force and effect all permits, licenses and other required
governmental approvals necessary to perform Variagenics Lab Services.
Variagenics further represents and warrants that neither it nor its Affiliates
is currently a party to any alliance, partnership, joint venture, distribution
or similar arrangement or agreement, or any license, of the nature described in
the first sentence of Section 8, or any arrangement or agreement to provide
Pharmacogenomic Lab Services to any Sponsor, and it does not have outstanding
any proposal for any of the foregoing, except for agreements listed on Exhibit E
and proposals for specific services that propose a price for such services and
which are listed on Exhibit E. Variagenics has the right to license to Covance
all of the presently existing Variagenics Know-How and will have
11
the right to license to Covance all of the Variagenics Know-How developed after
the date hereof that is owned by Variagenics, including in each case after the
termination of this Agreement as provided in Section 2(a).
In addition, Variagenics represents and warrants to Covance that Variagenics has
obtained an aggregate of at least $10,000,000 in equity or debt financing after
July 20, 1999 which is "new" money (i.e., the proceeds of such financing are not
being used to replace, retire or refinance existing debt or equity of
Variagenics).
(b) Covance Representations. Covance represents and warrants to
Variagenics that: it is duly organized, validly existing and in good standing
under the laws of the State of Delaware; it has taken all actions necessary to
secure all approvals required to be secured by it in connection with the
transactions contemplated hereby; the execution, delivery and performance of
this Agreement by it has been duly authorized by all necessary corporate,
shareholder and other action; this Agreement has been duly executed and
delivered by it and constitutes the legal, valid and binding obligation,
enforceable against it in accordance with its terms; the execution, delivery and
performance of this Agreement does not violate any agreement to which it is a
party or by which it is bound or any law, order or decree applicable to it, or
any provision of its charter documents or bylaws; no third party has asserted in
writing to Covance that the Covance Know-How infringes upon any intellectual
property rights that are owned or claimed by such third party, and to the best
knowledge of Covance, the Covance Know-How does not infringe upon any
intellectual property rights that are owned or claimed by any third party; and
it has and shall maintain in full force and effect all permits, licenses and
other required governmental approvals necessary to perform Pharmacogenomic Lab
Services. Covance has the right to license to Variagenics all of the presently
existing Covance Know-How and will have the right to license to Variagenics all
of the Covance Know-How developed after the date hereof that is owned by
Covance.
10. Review. In addition to the rights set forth in Section 7(c), the parties
agree that each party shall have the right at its sole cost and expense to have
an independent accountant, reasonably satisfactory to the party whose books are
being reviewed, review the financial books and records of the other and its
Affiliates at such times as the parties shall reasonably agree and upon
reasonable notice to the other for the sole purpose of verifying the
determination of the applicable Net Sales, and the Covance Fees and Variagenics
Fees. In addition, Covance shall have the right to have such accountant review
such appropriate books and records of Variagenics and its Affiliates as are
necessary to verify obligations with respect to Employees and FTEs set forth in
Section 3.
11. Indemnification.
(a) Covance Indemnification. Covance shall indemnify, defend and hold
harmless Variagenics and its Affiliates and their respective officers,
directors, employees and agents from, against and in respect of any and all
losses, damages, costs or expenses (including reasonable attorney's fees) (a
"loss") arising from any claim, action, suit, assessment, proceeding or demand
(a "Claim") asserted by a third party resulting from, relating to or arising out
of (i) the negligence, gross negligence or intentional misconduct or inaction of
Covance or any of its
12
Affiliates in the performance of their obligations under this Agreement or any
IPA, or the breach of any representation, warranty, covenant or agreement of
Covance or any of its Affiliates in the performance of their obligations under
this Agreement or any IPA; provided, that if such Loss or Claim arises in whole
or in part from the negligence, gross negligence or intentional misconduct or
inaction of Variagenics or any of its Affiliates then the amount of the Loss or
Claim that Covance shall indemnify Variagenics and its Affiliates for pursuant
to this Section 11 shall be reduced by an amount in proportion to the percentage
of Variagenics' or its Affiliates' responsibility for such Loss or Claim as
determined by a court of competent jurisdiction in a final and non-appealable
decision or, if available, pursuant to the arbitration provisions of Section 19
hereof, or in a binding settlement between the parties or (ii) any actual or
alleged infringement by the Covance Know-How which is licensed to Variagenics
hereunder of any intellectual property rights that are owned or claimed by any
third party.
(b) Variagenics Indemnification. Variagenics shall indemnify, defend and
hold harmless Covance and its Affiliates and their respective officers,
directors, employees and agents from, against and in respect of any and all
Losses arising from any Claim asserted by a third party resulting from, relating
to or arising out of (i) the negligence, gross negligence or intentional
misconduct or inaction of Variagenics or any of its Affiliates in the
performance of their obligations under this Agreement or any IPA, or the breach
of any representation, warranty, covenant or agreement of Variagenics or any of
its Affiliates in the performance of their obligations under this Agreement or
any IPA; provided, that if such Loss or Claim arises in whole or in part from
the negligence, gross negligence or intentional misconduct or inaction of
Covance or any of its Affiliates then the amount of the Loss or Claim that
Variagenics shall indemnify Covance and its Affiliates for pursuant to this
Section 11 shall be reduced by an amount in proportion to the percentage of
Covance's or its Affiliates' responsibility for such Loss or Claim as determined
by a court of competent jurisdiction in a final and non-appealable decision or,
if available, pursuant to the arbitration provisions of Section 19 hereof, or in
a binding settlement between the parties or (ii) any actual or alleged
infringement by the Variagenics Know-How of any intellectual property rights
that are owned or claimed by any third party.
(c) Third Party Claims. Upon receipt of notice of any Claim brought or
asserted against any party hereto by any third party which may give rise to a
right of indemnity from the other party or parties hereto, the party seeking
indemnification (the "Indemnified Party") shall give prompt written notice
thereof to the other party or parties (the "Indemnifying Party") with a claim
for indemnity; provided, that failure to give prompt notification shall not
affect the indemnification provided hereunder except to the extent the
Indemnifying Party shall have been actually prejudiced as a result of such
failure. Such claim for indemnity shall indicate the nature of the Claim and the
basis therefore. The Indemnifying Party shall have ten days from its receipt of
the notice of the Claim to notify the Indemnified Party whether or not the
Indemnifying Party elects, at its sole cost and expense, to defend the
Indemnified Party hereunder against such Claim; provided, that the Indemnified
Party is authorized, but not obligated, prior to notification from the
Indemnifying Party of its desire to defend the Claim, to file any motion, answer
or other pleading that it shall deem necessary or appropriate to protect its
interest.
13
The Indemnifying Party shall be permitted to defend the Claim if it so elects,
provided that (i) the Indemnified Party is given the right to participate in the
defense of such Claim at its own cost and expense, (ii) the Indemnifying Party
conducts the defense of such Claim with due regard for the business interests
and potential related liabilities of the Indemnified Party and (iii) the
Indemnifying Party will, prior to making any settlement, consult with the
Indemnified Party as to the terms of such settlement. The Indemnified Party
shall have the right, at its election, to release and hold harmless the
Indemnifying Party from its obligations hereunder with respect to such Claim and
assume the complete defense of the same in return for payment by the
Indemnifying Party to the Indemnified Party of the amount of any settlement
offer by the Indemnifying Party. The Indemnifying Party will not, in defense of
any such Claim, except with the consent of the Indemnified Party, consent to the
entry of any judgment or enter into any settlement which (i) does not include,
as an unconditional term thereof, the giving by the third party to the
Indemnified Party of a release from all liability in respect thereof or (ii)
imposes any obligation on the Indemnified Party. After notice to the Indemnified
Party of the Indemnifying Party's election to assume the defense of such Claim,
the Indemnifying Party shall be liable to the Indemnified Party for such legal
or other expenses subsequently incurred at the request of the Indemnifying Party
by the Indemnified Party in connection with the defense thereof. As to those
Claims with respect to which the Indemnifying Party does not elect to assume
control of the defense, the Indemnified Party will afford the Indemnifying Party
an opportunity to participate in such defense, at the Indemnifying Party's own
cost and expense, and will not settle or otherwise dispose of any of the same
without the consent of the Indemnifying Party.
(d) Direct Claims. If either party (a "Non-Breaching Party") shall have a
claim against the other party (a "Breaching Party") resulting from, relating to
or arising out of any breach of the Breaching Party's representations,
warranties, covenants or agreements in or under this Agreement, or the
negligence, gross negligence or intentional misconduct or inaction of the
Breaching Party or any of its Affiliates under this Agreement or IPA, and which
does not involve a Claim being brought or asserted by a third party (a "Direct
Claim"), then the Non-Breaching Party shall promptly send written notice thereof
to the Breaching Party; provided, that failure to give prompt notification shall
not affect the rights of the Breaching Party except to the extent the
Non-Breaching Party shall have been actually prejudiced as a result of such
failure. If the Breaching Party does not notify the Non-Breaching Party within
thirty (30) days from its receipt of the notice of the Direct Claim that it
disputes such Direct Claim, then the amount of the Direct Claim shall be deemed
an obligation of the Breaching Party hereunder. If the Breaching Party notifies
the Non-Breaching Party that it disputes such Direct Claim, then the matter will
be resolved as set forth in Section 19. The substantially prevailing party in
any dispute involving a Direct Claim shall be entitled to recover its reasonable
attorneys' fees and all reasonably related costs (including out of pocket
expenses), in addition to any other remedies at law or in equity.
(e) Payment of Obligations. If an Indemnifying Party or Breaching Party is
required to make any payment under this Section, the Indemnifying Party or
Breaching Party shall promptly pay the Indemnified Party or the Non-Breaching
Party the amount so determined. If there should be a dispute as to the amount of
any obligation owed under this Section, the Indemnifying Party or Non-Breaching
Party shall nevertheless pay when due such portion, if any, of the obligation as
shall not be subject to dispute. The difference, if any, between the
14
amount of the obligation ultimately determined as properly payable under this
Section and the portion, if any, previously paid shall bear interest as provided
in Section (f) below.
(f) Failure to Pay. If all or part of any obligation under this Agreement
is not paid when due, then the Indemnifying Party or the Breaching Party shall
pay the Indemnified Party or the Non-Breaching Party interest on the unpaid
amount of the obligation for each day from the date the amount became due
through the date on which payment in full is made, payable on demand, at the
fluctuating rate per annum publicly announced on the date of the claim for
indemnification under this Agreement by Bank of America, N.A. (or its
successors) as its so-called "prime rate."
(g) Breach by Indemnified Party or the Non-Breaching Party. A breach by
the Indemnified Party or the Non-Breaching Party of its obligations under this
Agreement shall not relieve the Indemnifying Party or the Breaching Party of its
obligations under this Section unless such breach was solely responsible for the
Loss or Claim as determined by a court of competent jurisdiction in a final and
non-appealable decision, or, if available, pursuant to the arbitration
provisions of Section 19 hereof, or in a binding agreement between the parties.
12. Use of Names; Website. (a) Variagenics and Covance agree each may use the
name and logo of the other in its marketing and promotional materials, but
solely in reference to the existence and services of the Alliance and only after
written approval by the other party of the text of such materials in which the
other party's name is used. The parties shall issue a mutually acceptable joint
press release in a form agreed prior to the execution hereof promptly after the
execution hereof. All subsequent press releases relating to this Agreement or
the Alliance shall be subject to the written approval of both parties. The
foregoing notwithstanding, once a particular item of information has been
disclosed as permitted by this Section 12, either party may make subsequent
disclosure of such item of information in the same or similar context without
approval of the other party, except with respect to press releases that include
any information other than the fact that the Alliance is in existence and the
general subject matter of the Alliance. Except as specifically set forth herein,
no party shall otherwise use the name of the other parties, including any
tradename, service xxxx, trademark, trade name, symbol or logo, in any
advertising or sales promotional materials or in any publication without prior
written consent.
(b) Website. Variagenics agrees that in maintaining its website at
xxx.xxxxxxxxxxx.xxx, or any other website it may directly or indirectly control,
Variagenics shall, subject to the requirements of Section 12(a), display the
Covance name and logo (or any successors thereto) (including a hyperlink to
xxx.xxxxxxx.xxx or any successor website) and describe the existence of the
relationship created by this Agreement, in a substantially equivalent manner as
is described any relationship which Variagenics may have with any other party
regarding Variagenics Lab Services and is displayed the name and logo of any
such party. Nothing in this Section 12(b) shall require Variagenics to display
any of the foregoing with respect to Covance if none of the foregoing are
displayed with respect to any party with whom Variagenics has such a
relationship.
15
13. Property Rights. All Variagenics Know-How, Covance Know-How and other
information provided by one party to the other party shall remain the exclusive
property of the providing party, subject to the rights therein granted in this
Agreement, and shall be kept confidential as provided in Section 14.
14. Confidential Information.
(a) Confidentiality Obligation. It is anticipated that in the performance
of this Agreement, Covance and its Affiliates and Variagenics and its Affiliates
shall provide to the other or the other's Affiliates access to certain
information ("Proprietary Information") which the discloser considers
proprietary, which may include information of third parties, including Sponsors
(each party disclosing information and its Affiliates is referred to as a
"Discloser" and each party and its Affiliates receiving information is referred
to as a "Recipient"). For purposes hereof, Proprietary Information shall include
any such information disclosed by one party to the other party at any time on or
after June 17, 1998. During the period from the date of this Agreement through
the later of eight (8) years after the date of this Agreement and three (3)
years after the termination of this Agreement (or such later period as may be
required by a Sponsor, if applicable), the Recipient of Proprietary Information
shall use such Proprietary Information solely for the purposes of fulfilling the
Recipient's obligations under this Agreement or an applicable IPA, and shall
keep confidential and not disclose such Proprietary Information to any other
person or entity for any purpose; provided, that the foregoing limitations on
use and requirements of confidentiality and non-disclosure shall not terminate
with respect to Covance Know-How or Variagenics Know-How. In addition, each
party represents to the other that any Proprietary Information of the other
party received by such party between June 17, 1998 and the date of this
Agreement has been used, kept and not disclosed as is required by this Section
14(a) with respect to Proprietary Information disclosed after the date of this
Agreement. Proprietary Information shall include the material (including
economic) terms and conditions of this Agreement.
(b) Exceptions. The obligations contained in this Section shall not apply
with respect to Proprietary Information which (i) is publicly available prior to
the date of this Agreement or becomes publicly available thereafter through no
breach of this Agreement by the Recipient, (ii) was known to the Recipient prior
to the date of disclosure or becomes known to the Recipient thereafter from a
third party not under an obligation of confidentiality with respect to such
information known to the Recipient; (iii) is disclosed with the written
permission of the Discloser; (iv) is independently developed or conceived by the
Recipient by persons or entities having no access to the Proprietary Information
of the Discloser; or (v) the Recipient is obligated to disclose pursuant to
applicable law, regulation, rule, subpoena, order, decree, decision or other
legal process, or by stock exchange rules, provided, that Recipient promptly
notifies Discloser of any such requirement and cooperates, at the Discloser's
expense, with the Discloser in seeking a protective order with respect to such
Proprietary Information. In addition, either party may disclose the terms
(including economic terms) of this Agreement to existing or prospective
investors, lenders or other sources of financing; provided, that any such
recipient of such disclosures is subject to a reasonable confidentiality
agreement, and under no circumstances may disclosures be made to any existing or
prospective investor, lender or other source of financing who performs or whose
Affiliates perform Product Development Services.
16
(c) Remedies. Each party hereto acknowledges and agrees that the
disclosure of Proprietary Information in violation of the terms of this
Agreement without the express written permission of the Discloser may cause
irreparable harm and that the breach or threatened breach of the provisions of
this Section will entitle said party to injunctive relief, in addition to any
other equitable or legal remedies that may be available to it.
15. Insurance.
(a) Variagenics. Variagenics shall, at its sole cost and expense, procure
and maintain in full force and effect during the Term and for a three-year
period thereafter, comprehensive general liability and professional liability
insurance. Such coverage shall be maintained at a minimum with limits of
$1,000,000 per occurrence and $5,000,000 in the aggregate. Covance shall be
named as an additional insured on such policies. Variagenics shall provide
Covance with a certificate of insurance evidencing the coverage required by this
Section upon request.
(b) Covance. Covance shall, at its sole cost and expense, procure and
maintain in full force and effect during the Term and for a three-year period
thereafter, comprehensive general liability and professional liability
insurance. Such coverage shall be maintained at a minimum with limits of
$1,000,000 per occurrence and $5,000,000 in the aggregate. Variagenics shall be
named as an additional insured on such policies. Covance shall provide
Variagenics with a certificate of insurance evidencing the coverage required by
this Section upon request.
(c) Amendments to Insurance. These policies shall not be changed (other
than any change that is not material and adverse) or canceled during the Term
without fifteen (15) days prior written notice to the other party. The
procurement or maintenance of such insurance, however, shall not in any way be
construed or be deemed to limit or relieve any party from any obligation, risk,
or liability assumed under the terms of this Agreement.
16. Term and Termination.
(a) Term. Subject to earlier termination as provided elsewhere in this
Agreement, or unless otherwise agreed to by the parties, this Agreement shall be
effective for a period of five (5) years from the date of this Agreement, and
thereafter this Agreement shall be effective and automatically be renewed for
successive terms of one (1) year provided that neither party gives the other
party written notice of its intent not to renew this Agreement at least ninety
(90) days prior to the expiration of the current term (such period of
effectiveness, the "Term"). All terms and conditions set forth in this Agreement
shall apply to any such renewal term(s).
(b) Termination--Agreement. Notwithstanding the provisions of Section
16(a), either party may terminate this Agreement upon the occurrence of any of
the following: the material breach of the other party's representations,
warranties, covenants or agreements contained in this Agreement or any IPA and
such party's failure to remedy any such breach within sixty (60) days after
written notice thereof by the non-breaching party; the other party's committing
any act of intentional, willful or negligent misconduct in the performance of
its duties or obligations under this Agreement or any IPA, and such party's
failure to remedy any such misconduct within sixty
17
(60) days after written notice thereof by the non-breaching party; the other
party's insolvency; the initiation of bankruptcy or receivership proceedings by
or against the other party (which are not dismissed in forty-five (45) days);
the other party makes a general assignment for the benefit of creditors or a
receiver is appointed for it; or the assignment of the other party's assets for
the benefit of creditors. If this Agreement shall terminate, whether pursuant to
this Section 16(b) or other provisions of this Agreement, prior to termination
of any IPA and completion of the obligations thereunder, then, subject to
termination of any IPA as provided in Section 16(c), the parties shall complete
their obligations under any IPA then in effect subject to the terms and
conditions of this Agreement.
(c) Termination--IPAs. Covance or Variagenics (as the party or primary
party to the agreement with the Contracting Sponsor with respect to the
applicable Product Development Program) may terminate any IPA when the
Contracting Sponsor has terminated the applicable Product Development Program or
any portion thereof to which the IPA relates (regardless of the reason for such
termination by the Contracting Sponsor), or when the other party has materially
breached any of its representations, warranties, covenants or agreements
contained in such IPA or committed any act of intentional, willful or negligent
misconduct in the performance of its duties or obligations under such IPA. If
any IPA is terminated prior to the completion of the Variagenics Lab Services or
Pharmacogenomic Lab Services provided for therein, Variagenics shall cooperate
with Covance and its Affiliates in concluding such Variagenics Lab Services, or
Covance or its Affiliates shall cooperate with Variagenics in concluding such
Pharmacogenomic Lab Services, as the case may be, as expeditiously as
practicable and in accordance with all applicable laws, rules and regulations.
(d) Change of Control. (i) Subject to the following provisions in this
Section 16(d), Covance shall have the right in its absolute discretion to
terminate this Agreement and/or any or all IPAs in connection with a Change of
Control. If Variagenics expects there to be a Change of Control, Variagenics
shall provide to Covance prompt prior written notice of such expected event,
together with such information with respect thereto as Covance shall reasonably
request, which information Covance shall request in writing within 10 days of
such written notice; provided, that Variagenics shall notify Covance promptly in
writing if Xxxxxx Xxxxxx no longer is serving as President of Variagenics.
Within fifteen (15) days of receipt of such notice and information, Covance
shall give written notice to Variagenics as to whether or not Covance intends to
terminate this Agreement in connection with such Change of Control. If Covance
does not give a written response within such fifteen (15) days, or if Covance's
written response indicates it will not terminate this Agreement in connection
with the Change of Control, then Covance will have no right to terminate this
Agreement in connection with the Change of Control. If Covance's response
indicated it intends to terminate this Agreement in connection with the Change
of Control, then Covance shall have the right, exercisable within ten (10) days
after receipt of Variagenics' notice to Covance of the effectiveness of such
Change of Control, to immediately terminate this Agreement and/or any or all
IPAs in its absolute discretion. The foregoing notwithstanding, if the Change of
Control is completed on terms materially different than the terms indicated in
the notice provided for in the first sentence of this Section 16(d) and
information provided to Covance (a "Non-Compliant Change of Control"), then
Covance shall have the right to terminate this Agreement and/or any or all IPAs
in its absolute discretion within
18
forty-five (45) days after Covance has actual knowledge of the occurrence of the
Non-Compliant Change of Control.
(ii) Covance shall also have the right to terminate this Agreement
and/or any or all IPAs in its absolute discretion in connection with a Change of
Control with respect to which Covance was not provided the notice and
information required by this Section 16(d) or, in the case of a Change of
Control under clause (v) of the definition thereof, as to which no satisfactory
replacement is obtained within the permitted one-hundred and eighty (180) day
period. Covance may exercise this right by written notice given at any time
prior to forty-five (45) days after receipt by Covance of all information with
respect to any such Change of Control Covance may reasonably request in writing,
which request shall be made by Covance within ten (10) days of Covance's receipt
of written notice from Variagenics of such Change of Control.
(iii) Under all circumstances under this Section 16(d), Variagenics
will notify Covance immediately upon the effectiveness of any Change of Control,
and promptly provide such information as Covance shall reasonably request to
determine whether the Change of Control was a Non-Compliant Change of Control.
(e) Survival of Obligations. Upon the termination or expiration of this
Agreement for any reason, all of the rights and obligations of the parties
hereto shall terminate, except that (i) except as otherwise provided for in this
Agreement, all licenses provided for in this Agreement shall continue after such
termination or expiration solely for use with respect to and until the
completion of all obligations to perform Pharmacogenomic Lab Services and
Research Lab Services under or in connection with this Agreement in effect on
the date of such termination or expiration, and (ii) such termination or
expiration shall not (a) relieve any party from any liability arising from any
breach of this Agreement, (b) affect the right of either party to receive
payment, subject to the limitations contained herein, of all Covance Fees,
Variagenics Fees or Variagenics Non-Alliance Fees, as applicable, or repayment
of the advances provided for in Section 3(c), or (c) eliminate any party's
obligations under Sections 2(a), 2(c), 2(d), 7, 11, 12, 13, 14, 15, 16, 17, 18,
19, 20 and 21 of this Agreement.
17. No Consequential Damages. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY
CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES SUFFERED BY THE OTHER
PARTY OR THEIR AFFILIATES AS A RESULT OF ANY BREACH BY SUCH PARTY OR ITS
AFFILIATES OF THEIR OBLIGATIONS HEREUNDER OR RELATED HERETO.
18. Nature of Relationship. The parties are independent contractors. Nothing in
this Agreement or otherwise shall constitute Covance or Variagenics or any of
their Affiliates as an employee, agent, joint venturer, partner, or servant of
the other or give any party the authority to make representations or agreements
on behalf of the other.
19. Arbitration. Except with respect to the seeking of injunctive relief and
specific performance in connection with the agreements contained in this
Agreement, and disputes involving third parties which must be resolved in a
court of competent jurisdiction, in the event any dispute shall arise between or
among the parties with respect to any of the terms and
19
conditions of this Agreement, then such dispute shall be submitted and finally
settled by arbitration in the vicinity of New York, NY, pursuant to the
prevailing rules of the American Arbitration Association. The arbitrators shall
include one nominee of Covance and one nominee of Variagenics and a third
individual jointly selected by these nominees, none of whom shall be affiliated
or associated with either party. In the event the respective nominees of Covance
and Variagenics are unable to jointly select such third individual, then Covance
and Variagenics shall request the American Arbitration Association in New York,
NY, to designate the third arbitrator. The arbitrators shall resolve the dispute
within sixty (60) days after the third arbitrator is chosen. The award rendered
by the arbitrators shall be final and binding upon the parties hereto, and
judgment upon the award rendered may be entered by either party in any court
that would ordinarily have jurisdiction over the parties or the subject matter
of the controversy or claim. The expense of such arbitration, including
attorneys' fees, shall be allocated between or among the parties as the
arbitrators shall decide.
20. Force Majeure. Each party shall be excused from performing its obligations
under this Agreement if its performance is delayed or prevented by any event
beyond its reasonable control, including, without limitation, acts of God, fire,
explosion, weather, disease, war, insurrection, civil strife, riots, government
action, or power failure, provided that such performance shall be excused only
to the extent of and during such disability. Any time specified for completion
of performance in this Agreement falling due during or subsequent to the
occurrence of any of such events shall be automatically extended for a period of
time equal to the period of such disability.
21. Miscellaneous.
(a) Governing Law. This Agreement shall be governed, construed and
interpreted in accordance with the laws of New Jersey, without regard to its
principles of conflicts of laws.
(b) Waiver. The waiver by any party or the failure by any party to claim a
breach of any provision of this Agreement shall not be deemed to constitute a
waiver or estoppel with respect to any subsequent breach or with respect to any
provision thereof.
(c) Amendments. This Agreement may be amended only by a further written
agreement between authorized representatives of both parties.
(d) No Assignment. Subject to Covance's right set forth in Section 16(d),
no party hereto may assign this Agreement or its rights or obligations hereunder
without the prior written approval of the other party, except that (i) either
party may assign this Agreement in connection with a sale of all or
substantially all of its assets or in connection with its merger or
consolidation and (ii) either party may assign this Agreement or its rights or
obligations hereunder to any wholly-owned subsidiary of such party who is
capable of performing all of the obligations of the assigning party hereunder.
Subject to the foregoing, all of the terms and provisions of this Agreement
shall be binding upon and inure to the benefit of and be enforceable by the
heirs, executors, legal representatives, successors and permitted assigns of the
parties.
(e) Counterparts. This Agreement may be executed in counterparts, each of
which is an original, and all of which together shall be deemed to be one and
the same instrument. This
20
Agreement shall become binding when one or more counterparts taken together
shall have been executed and delivered by all of the parties.
(f) Notices. Any notice, request or other communication hereunder shall be
in writing and shall be deemed given only if delivered personally to the address
set forth below (to the attention of the individual identified below) or sent by
telecopier, recognized courier providing evidence of receipt, or by registered
or certified mail, postage prepaid, as follows:
If to Covance, to: With a required copy to:
Covance Central Laboratory 210 Carnegie Center
Services Limited Partnership Xxxxxxxxx, XX 00000
0000 XxxXxx Xxxxx Telecopier No. (000) 000-0000
Xxxxxxxxxxxx, XX 00000 Attention: Xxxx X. Xxxxxxxx and
Attention: Xxxxxxx Xxxxxxxx Xxxxxxx X. Xxxxxxx
If to Variagenics, to: With a required copy to:
Xxxxxx Xxxxxx Xxxxxxx X. Xxxxxx
President Mintz, Levin, Cohn, Ferris, Glovsky
00 Xxxxxxxxx Xxxxxx and Popeo, P.C.
Xxxxxxxxx, XX 00000 One Financial Center
Telecopier No.: (000) 000-0000 Xxxxxx, XX 00000
Telecopier No.: (000) 000-0000
or to such other address or attention as the addressee may have specified in a
notice duly given to the sender and to counsel as provided herein. Such notice,
request, or other communication will be deemed to have been given as of the date
so delivered or, if telecopied, upon telephone confirmation of receipt, or, if
sent by courier, the date so delivered, or if mailed, five business days after
the date so mailed.
(g) No Third-Party Beneficiaries. Except as set forth in Section 11 and
with respect to Sponsors as specifically provided elsewhere in this Agreement,
this Agreement is for the sole benefit of the parties hereto and their
respective heirs, executors, legal representatives, successors and permitted
assigns, and no party intends to confer any benefit under this Agreement on any
person or entity other than the parties hereto or their successors in interest
and nothing contained herein shall be deemed to confer any such benefit on any
such person or entity, and nothing herein shall be construed as conferring and
is intended to confer any rights on any other person or entity.
(h) Entire Agreement. This Agreement, and the other agreements and
documents referenced herein, set forth the entire agreement of the parties
hereto with respect to the subject matter hereof. Any prior agreements or
understandings between the parties hereto regarding the subject matter hereof,
whether oral or written, are superseded by this Agreement.
(i) Section Headings. All section headings are for convenience only and
shall in no way affect the meaning or interpretation of this Agreement or any
provisions hereof.
21
(j) Fees and Expenses. Each party hereto will pay all fees and expenses
which such party incurs in connection with the negotiation of this Agreement.
(k) Invalidity. If any term or provision of this Agreement, or the
application thereof to any person, entity, property or circumstance shall to any
extent be invalid or unenforceable, the remainder of this Agreement or the
application of such term or provision to persons, entities, property or
circumstances other than those as to which it is invalid or unenforceable shall
not be affected thereby, and each term and provision of this Agreement shall be
valid and enforced to the fullest extent permitted by law.
(1) Joint Effort. The preparation of this Agreement and the other
agreements contemplated herein has been the joint effort of the parties, and the
resulting documents shall not be construed more severely against any party or
parties than against the other parties.
(m) Hiring of Employees. During the Term, the employees of Variagenics or
any of its Affiliates who come to know any of the employees of Covance or any of
its Affiliates solely in connection with the Alliance shall not, while employed
by Variagenics or any of its Affiliates, solicit for employment any of the
employees of Covance or any of its Affiliates such employees of Variagenics and
its Affiliates came to know. During the Term, the employees of Covance or any of
its Affiliates who come to know any of the employees of Variagenics or any of
its Affiliates solely in connection with the Alliance shall not, while employed
by Covance or any of its Affiliates, solicit for employment any of the employees
of Variagenics or any of its Affiliates such employees of Covance and its
Affiliates came to know. The foregoing prohibitions shall not apply to any
solicitation to hire any such employee after such employee is no longer employed
by the applicable entity for at least three (3) months, or to advertisements in
trade magazines, use of search firms and other conventional means of obtaining
employees unless specifically directed at employee(s) which may not be solicited
pursuant to these provisions.
During the Term and for six months thereafter, the employees of Covance or any
of its Affiliates who come to know any of the Employees or the FTEs solely in
connection with the Alliance shall not, while employed by Covance or any of its
Affiliates, hire any Employees or FTEs such employee of Covance or its
Affiliates came to know, unless, in either case, such Employee's or FTE's
employment with Variagenics terminated at least six months before his or her
date of hire. For purposes of this Section 21(m) only, FTEs shall mean only
those FTEs whose percentage of time dedicated to the Alliance has been at least
30% for at least six consecutive months at any time during the previous twelve
months.
(n) Research Tax Credit. Each party agrees that the party which provides
the funding pursuant to Section 3 for Employees or FTE's shall be the sole party
entitled to make any claim for any Federal or state research tax credit with
respect to such funding.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
Covance Inc. Variagenics, Inc.
/s/ Xxxx Xxxxxxxx /s/ Xxxxxx X. Xxxxxx
--------------------------------- ---------------------------------
Name: Xxxx Xxxxxxxx Name: Xxxxxx X. Xxxxxx
Title: Corporate V.P. Title: President
22
Exhibit A
Definitions
"Affiliate" means, with respect to a person or entity, (a) any other person or
entity that, directly or indirectly through one or more intermediaries, controls
such person or entity (a "Controlling Person") or (b) any other person or entity
(other than such person or entity) which is controlled by or is under common
control with a Controlling Person. As used herein, the term "control" and with
correlative meaning "controlled" and "under common control" means possession,
direct or indirect, of the power to direct or cause the direction of the
management or policies of a person or entity, whether through the ownership of
voting securities, by contract or otherwise.
"Agreement" is defined in the heading of this Agreement.
"Alliance" is defined in the background section of this Agreement.
"Breaching Party" is defined in Section 10(d).
"Central Labs Affiliates" means any Affiliate of Covance Central Labs that
provides central laboratory services to Sponsors the same or similar to those
provided by Covance Central Labs on the date of this Agreement.
"Change of Control" shall mean the occurrence of any of the following: (i) fewer
than three of the members of the Board of Directors of Variagenics immediately
after Variagenics' next financing (whether debt or equity) (or successors
employed by the same stockholder in the case of directors who are employees of
stockholders) continue to serve on the Board of Directors of Variagenics; (ii)
capital stock of Variagenics representing more than one-half of the right to
vote for the election of directors of Variagenics shall no longer be owned by
the shareholders who owned such capital stock immediately after Variagenics'
next equity financing; (iii) the sale of all or a material part of the assets of
Variagenics; (iv) any merger or consolidation of Variagenics with any other
person or entity in which Variagenics is not the surviving corporation in the
merger or consolidation or in which shareholders of Variagenics immediately
prior to the merger or consolidation do not hold a majority of the shares of the
surviving entity immediately after the merger or consolidation; or (v) Xxxxxx
Xxxxxx is not serving as President of Variagenics and is not replaced in this
capacity by a person reasonably satisfactory to Covance within one hundred and
eighty days (180) days.
"Claim" is defined in Section 11(a).
"Committee" is defined in Section 6(a).
"Contracting Sponsor" means a Sponsor which contracts for Research Lab Services,
Pharmacogenomic Lab Services, or both, hereunder; provided, that no person or
entity that performs or whose Affiliates perform Product Development Services,
other than Covance and its Affiliates, shall become a Contracting Sponsor
hereunder, unless the parties mutually agree.
23
"Controlling Person" is defined in the definition of Affiliate.
"Covance" is defined in the heading of this Agreement.
"Covance Central Labs" means Covance Central Laboratory Services Limited
Partnership, an Affiliate of Covance in which Covance owns, directly and
indirectly, 100% of the equity interests.
"Covance Fees" is defined in Section 5(c).
"Covance Know-How" means all patents, copyrights and applications for any of the
foregoing, and any trade secrets, technology, know-how, inventions, discoveries,
ideas, improvements, processes, computer programs, software, databases, and
Standard Operating Procedures, used, licensed, leased or owned, directly or
indirectly, by Covance or its Affiliates and used in providing or relating to
central laboratory services, whether now existing or developed at any time
during the Term.
"Cumulative Alliance Net Sales" is defined in Section 3(d).
"Direct Claim" is defined in Section 11(d).
"Discloser" is defined in Section 14(a).
"Employees" is defined in Section 3(a).
"Excluded Net Sales" is defined in Section 3(c).
"FTEs" is defined in Section 3(b).
"Indemnified Party" is defined in Section 11(c).
"Indemnifying Party" is defined in Section 11(c).
"IPA" means a separate written individual project agreement in the form of
Exhibit F hereto between Covance or any of its Affiliates and Variagenics or any
of its Affiliates, which shall incorporate the terms and provisions of the
applicable Price Quotation.
"Loss" is defined in Section 11(a).
"Net Sales" means gross sales, less credits, allowances, and taxes with respect
to such sales, if any, when payment is received therefor by the applicable
party.
"Non-Breaching Party" is defined in Section 11(d).
"Non-Compliant Change of Control" is defined in Section 16(d).
24
"Pharmacogenomic Lab Services" means (i) detection in human samples of
previously identified gene sequence variances as part of a Sponsor-funded
Product Development Program, (ii) developing and validating assays for metabolic
enzymes, proteins and pharmacogenetic markers for the purpose of such detection
of variances and (iii) laboratory testing utilizing such validated assays as
part of a Product Development Program.
"Price Quotation" means a price quotation prepared by Variagenics or one of its
Affiliates indicating the work to be performed in connection with Variagenics
Lab Services for a particular Sponsor, or a price quotation prepared by Covance
or one of its Affiliates indicating the work to be performed in connection with
Pharmacogenomic Lab Services for a particular Sponsor, and in each case the
costs and expenses to be incurred with such work, and the assumptions used in
developing the foregoing.
"Product Development Program" means a program to test a drug or therapeutic
medical device in humans for scientific evaluation or regulatory approval.
"Product Development Services" means services the same or similar to those
provided by Covance and its Affiliates now or hereafter at any time during the
Term to pharmaceutical, biotechnology and medical device companies and similar
entities, including preclinical studies, Phase I, II, III and IV clinical trial
services, pharmaceutical packaging services, biomanufacturing services, health
economic services and central laboratory services.
"Proprietary Information" is defined in Section 14(a).
"Recipient" is defined in Section 14(a).
"Research Lab Services" means variance discovery in specified genes on the
pathway of action of the Sponsor's drug. In general, Research Lab Services will
involve the following: working with the Sponsor's product development team,
Variagenics will select candidate genes which may affect drug action and
identify variances in these genes which occur in the normal population, through
experimentation using Variagenics' variance discovery platform and from
Variagenics' database of proprietary and public domain variances. Variagenics
will provide the Sponsor with an annotated summary of variances that may affect
drug action. Sponsors may be granted by Variagenics an option for a limited
period of time to obtain exclusive, co-exclusive or non-exclusive rights to the
use of variances discovered pursuant to their sponsorship, as agreed by
Variagenics and the Sponsor on a case-by-case basis.
"Sponsor" means a pharmaceutical, biotechnology or medical device company or
similar entity which engages in Product Development Programs; provided, that no
person or entity listed on Exhibit G hereto or any of their Affiliates, or any
successor to any such person or entity, shall be a Sponsor for any purpose under
this Agreement unless the parties mutually agree.
"Standard Operating Procedures" means the aggregation of the guidelines, rules
and regulations adopted or implemented at Covance and its Affiliates relating to
central lab services, as the same may be modified, amended or supplemented from
time to time, as submitted in writing to Variagenics, which may include
summaries thereof.
25
"Term" is defined in Section 16(a).
"Variagenics" is defined in the heading of this Agreement.
"Variagenics Alliance Know-How" means all Variagenics Know-How developed by the
FTEs (in their activities in support of the Alliance) and the Employees.
"Variagenics Fees" is defined in Section 2(c).
"Variagenics Gene Rights" means all proprietary gene sequence variances and
variance databases useful in demonstrating the effect of gene sequence variance
on drug action, which are owned or licensed by Variagenics or its Affiliates,
and which Variagenics or its Affiliates have the right to license to Sponsors.
"Variagenics Know-How" means all patents, copyrights, and applications for any
of the foregoing, and any trade secrets, technology, know-how, inventions,
discoveries, ideas, improvements, processes, computer programs, software and
databases, used, licensed, leased or owned, directly or indirectly, by
Variagenics or its Affiliates and used in providing or relating to
Pharmacogenomic Lab Services, whether now existing or developed at any time
during the Term, including all assays, and including all of the foregoing
developed by the FTEs and Employees, but excluding all Variagenics Gene Rights.
"Variagenics Non-Alliance Fees" is defined in Section 5(i).
"Variagenics Lab Services" means Pharmacogenomic Lab Services and/or Research
Lab Services provided by Variagenics and/or its Affiliates.
26
Exhibit B
Covance Know-How
(1) Regulatory Compliance
--------------------------------------------------------------------------------
Procedure No. Title
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
100-600809-06
--------------------------------------------------------------------------------
100-600811-04
--------------------------------------------------------------------------------
100-600822-06
--------------------------------------------------------------------------------
100-600825-03
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
100-600853-06
--------------------------------------------------------------------------------
100-600857-02
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
100-600875-06
--------------------------------------------------------------------------------
100-600882-02
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
27
--------------------------------------------------------------------------------
Procedure No. Title
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-0 1
--------------------------------------------------------------------------------
355-1 01 001-01
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
355-1 01 014-02
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
355-1 01 031-01
--------------------------------------------------------------------------------
355-Program-01
--------------------------------------------------------------------------------
355-Program-01
--------------------------------------------------------------------------------
355-Program-01
--------------------------------------------------------------------------------
355-Program- 01
--------------------------------------------------------------------------------
355-Program-01
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-00000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
28
--------------------------------------------------------------------------------
Procedure No. Title
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
29
(2) Specimen Management
--------------------------------------------------------------------------------
Procedure No. Title
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
460-3001 20-01
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
00-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
--------------------------------------------------------------------------------
000-000000-00
-----------------
000-000000-00
--------------------------------------------------------------------------------
30
(3) Data Transfer
--------------------------------------------------------------------------------
Procedure No. Title
--------------------------------------------------------------------------------
55T-200078
--------------------------------------------------------------------------------
500-300402
--------------------------------------------------------------------------------
500-300009
----------------------------------------------------------------
55T-300049
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
----------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
----------------
--------------------------------------------------------------------------------
----------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(4) Clinical Trial And Data Base Design and Management
(a) Protocol Services Departmental
--------------------------------------------------------------------------------
Procedure No. Title
--------------------------------------------------------------------------------
300320
--------------------------------------------------------------------------------
300279
--------------------------------------------------------------------------------
300286
--------------------------------------------------------------------------------
300566
--------------------------------------------------------------------------------
300402
--------------------------------------------------------------------------------
300053
--------------------------------------------------------------------------------
300304
--------------------------------------------------------------------------------
300069
--------------------------------------------------------------------------------
300063
--------------------------------------------------------------------------------
300009
--------------------------------------------------------------------------------
31
--------------------------------------------------------------------------------
300049
--------------------------------------------------------------------------------
300300
--------------------------------------------------------------------------------
300297
--------------------------------------------------------------------------------
300295
--------------------------------------------------------------------------------
300298
--------------------------------------------------------------------------------
300299
--------------------------------------------------------------------------------
300314
--------------------------------------------------------------------------------
30023
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
300325
--------------------------------------------------------------------------------
300312
--------------------------------------------------------------------------------
300555
--------------------------------------------------------------------------------
300551
--------------------------------------------------------------------------------
300550
--------------------------------------------------------------------------------
300331
--------------------------------------------------------------------------------
300067
--------------------------------------------------------------------------------
300322
--------------------------------------------------------------------------------
300308
--------------------------------------------------------------------------------
300061
--------------------------------------------------------------------------------
300327
--------------------------------------------------------------------------------
300328
--------------------------------------------------------------------------------
300324
--------------------------------------------------------------------------------
300573
--------------------------------------------------------------------------------
300062
--------------------------------------------------------------------------------
300224
--------------------------------------------------------------------------------
300296
--------------------------------------------------------------------------------
300282
--------------------------------------------------------------------------------
300549
--------------------------------------------------------------------------------
300311
--------------------------------------------------------------------------------
300374
--------------------------------------------------------------------------------
300294
--------------------------------------------------------------------------------
300128
--------------------------------------------------------------------------------
300301
--------------------------------------------------------------------------------
300070
--------------------------------------------------------------------------------
(b) Protocol Services Interdepartment
--------------------------------------------------------------------------------
200058
--------------------------------------------------------------------------------
200092
--------------------------------------------------------------------------------
200125
--------------------------------------------------------------------------------
200041
--------------------------------------------------------------------------------
200119
--------------------------------------------------------------------------------
200078
--------------------------------------------------------------------------------
200049
--------------------------------------------------------------------------------
32
--------------------------------------------------------------------------------
200109
--------------------------------------------------------------------------------
200110
--------------------------------------------------------------------------------
200150
--------------------------------------------------------------------------------
200077
--------------------------------------------------------------------------------
200108
--------------------------------------------------------------------------------
200440
--------------------------------------------------------------------------------
200112
--------------------------------------------------------------------------------
200436
--------------------------------------------------------------------------------
200004
--------------------------------------------------------------------------------
200120
--------------------------------------------------------------------------------
200444
--------------------------------------------------------------------------------
200079
--------------------------------------------------------------------------------
200445
--------------------------------------------------------------------------------
200107
--------------------------------------------------------------------------------
200045
--------------------------------------------------------------------------------
200121
--------------------------------------------------------------------------------
200122
--------------------------------------------------------------------------------
200086
--------------------------------------------------------------------------------
200427
--------------------------------------------------------------------------------
200500
--------------------------------------------------------------------------------
200456
--------------------------------------------------------------------------------
200028
--------------------------------------------------------------------------------
200105
--------------------------------------------------------------------------------
200053
--------------------------------------------------------------------------------
200063
--------------------------------------------------------------------------------
200437
--------------------------------------------------------------------------------
200057
--------------------------------------------------------------------------------
200048
--------------------------------------------------------------------------------
200441
--------------------------------------------------------------------------------
200003
--------------------------------------------------------------------------------
200123
--------------------------------------------------------------------------------
200442
--------------------------------------------------------------------------------
33
Exhibit C
Assays
Variagenics will deliver to Covance the following minimum number of assays, with
the indicated minimum levels of complexity (which for purposes of this Exhibit C
means genetic variations detected by the assay), on the following schedule:
Assays Delivery Date
Complexity # Variations 2/28/00 4/30/00 7/15/00 Total
---------- ------------ ------- ------- ------- -----
Xxxxx 0
Xxxxx 0
Xxxxx 0
----------- --------------- ----------- ---------
Total
The specific assays at each Complexity Level to be delivered will be determined
by the Advisory Committee. If the Advisory Committee cannot agree upon what
assays are to be delivered, then Variagenics agrees to deliver the number of
fully validated assays of the indicated Complexity Level by the indicated
Delivery Date from the lists below as selected by Covance (any such selection by
Covance may only be changed as mutually agreed to by the parties or in
connection with the inability to obtain a necessary license as described in the
following sentence). The foregoing notwithstanding, if the licenses necessary,
if any, to allow Variagenics to deliver a specific assay selected by Covance
cannot be obtained, then Covance shall select a replacement assay; if the
licenses necessary, if any, to allow Variagenics to deliver the required number
of assays from the lists below cannot be obtained, then the Advisory Committee
shall determine replacement assays which Variagenics shall deliver.
Complexity Level I
Complexity Xxxxx 0
Xxxxxxxxxx Xxxxx 0
Other Assays
These other assays will be assigned a Complexity Level for purposes of inclusion
on the lists.
34
Exhibit D
Services for Variagenics Non-Alliance Fees
1. Collection, extraction and/or storage or other processing of genetic
material.
2. Analysis of laboratory data resulting from genetic testing in connection with
Pharmacogenomic Lab Services, except with respect to Net Sales of such services
which are subject to a royalty pursuant to Section 2(c) or excluded from a
royalty pursuant to Section 2(c).
3. Pharmacogenomic Lab Services not subject to a royalty pursuant to Section
2(c) or excluded from a royalty pursuant to Section 2(c). The Net Sales subject
to this item 3 shall be subject to a Variagenics Non-Alliance Fee at a rate of
[ ] ([ ]%).
35
Exhibit E
Proposals and Agreements
Companies
--------------------------------------------------------------------------------
Company Name Program(s) Status
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
36
Government and Academic Institutions
--------------------------------------------------------------------------------
Institution Name Program(s) Status
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
The parties acknowledge that the foregoing list may not refer to the legal names
of all the indicated entities.
37
Exhibit F
Form of
INDIVIDUAL PROJECT AGREEMENT
This Individual Project Agreement, dated as of ____________, ____, ("IPA") is by
and between Variagenics Inc. ("Variagenics")* and Covance _____ ("Covance") and
relates to the Alliance Agreement dated _____________, 1999 between Variagenics
and Covance Inc. (the "Agreement"). Capitalized terms used herein and not
otherwise defined shall have the respective meanings assigned to them in the
Agreement.
The parties agree as follows:
1. IPA. This document and its attachments constitute an IPA under the Agreement.
As such, this IPA is subject in all respects to the terms and provisions of the
Agreement.
2. Scope of Work.. [Variagenics] [Covance] agrees, in accordance with the
Agreement and the Protocol attached hereto as Exhibit 1, to provide the
[Variagenics Lab Services] [Pharmacogenomic Lab Services] as outlined in the
Price Quotation attached hereto as Exhibit 2.
3. Compensation. Payments for the services performed under this IPA will be made
in accordance with the provisions of the payment schedule attached to this IPA
and the Agreement.
4. Project Period. This IPA shall be in effect until the [Variagenics Lab
Services] [Pharmacogenomic Lab Services] as described in the attached Price
Quotation are completed, unless the IPA is earlier terminated in accordance with
the Agreement or this IPA.
----------
*or its applicable Affiliate.
38
5. Conflict. In the event of any conflict between the terms of the Agreement and
this IPA, the terms of the Agreement shall govern.
ACCEPTED AND AGREED TO:
Covance _______ Variagenics
By:______________________________ By:_____________________________
Name: Name:
Title: Title:
IPA Payment Schedule
[Describe payment provisions for Variagenics Lab Services or
Pharmacogenomic Lab Services under IPA]
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Exhibit G
Persons
Quintiles Transnational Corporation
PAREXEL International
PPD, Inc.
Quest Diagnostics
Lab Corp.
Viromed
Specialty Laboratories
National Genetics Institute
Consolidated Laboratories
Smithkline Xxxxxxx Clinical Labs
Mayo Clinic
MediLab
UCT
The parties acknowledge that the foregoing list may not refer to the legal names
of all the indicated entities.
40
