CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS,
HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
EXHIBIT 10.14
TRANSITION AGREEMENT
This TRANSITION AGREEMENT ("Agreement"), dated as of April 27, 1999 ("Effective
Date"), is entered into by and between Connetics Corporation, a Delaware
corporation ("Connetics") and InterMune Pharmaceuticals, Inc., a California
corporation ("InterMune"). Connetics and InterMune are also referred to as a
"Party" or "Parties" to this Agreement.
BACKGROUND
A. Connetics is party to a License Agreement with Genentech, Inc. dated May 5,
1998, as amended, ("Genentech License") pursuant to which Genentech
licensed to Connetics certain rights to Actimmune (as defined below).
B. Connetics has sublicensed to InterMune its rights under the Genentech
License and under the Supply Agreement between Connetics and Genentech
dated May 5, 1998 ("Genentech Supply Agreement"), all done pursuant to the
Exclusive Sublicense Agreement between Connetics and InterMune dated as of
August 21, 1998, as amended and restated effective April 27, 1999.
C. The Genentech Supply Agreement includes provisions for Connetics to
transfer manufacturing of Actimmune to a third party manufacturer [ * ],
and Connetics desires to create an incentive for InterMune (as Connetics'
sublicensee) to accelerate the transfer of manufacturing.
D. InterMune and Connetics have entered into a Term Sheet as of February 26,
1999 (the "Term Sheet") pursuant to which, among other things, InterMune
agreed that Connetics will have the right to book certain net revenues,
expenses and net profits related to sales of Actimmune Units for the
treatment of CGD (defined below) until December 31, 2001 (the "CGD
Revenues").
E. InterMune and Connetics have entered into that certain Collaboration
Agreement (the "Collaboration Agreement") and certain other related
documents as of even date herewith, which collectively set forth the
transaction contemplated by the Term Sheet (the "Transaction").
F. In connection with the Transaction, InterMune and Connetics desire to enter
into this Transition Agreement to outline the mechanism by which Connetics
shall book the CGD Revenues.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained in this Agreement, and intending to be legally bound, the Parties
agree as follows:
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BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
PAGE 1 OF 12
AGREEMENT
SECTION 1
DEFINITIONS
1.1 ACTIMMUNE. "Actimmune" means the filled and finished form of the
protein encoded by the interferon gamma-1b gene, and sold and distributed under
the trademark ACTIMMUNE-Registered Trademark-, which is owned by Genentech and
licensed to Connetics and its sublicensees under the Genentech License.
1.2 ACTIMMUNE GROSS MARGIN. "Actimmune Gross Margin" means Actimmune Net
Sales less all applicable. Product Cost of Actimmune Units sold, GNE
Royalties, third party royalties payable pursuant to Section 8.4 of the
Genentech License and CORD Distribution Costs.
1.3 ACTIMMUNE GROSS SALES. "Actimmune Gross Sales" means all revenue
recorded in connection with shipments of Actimmune Units multiplied by the
price per Actimmune Unit, including revenue with associated accounts
receivable for accounting purposes for specific shipment/invoicing
transactions with respect to Actimmune Units, and assumes that invoices are
prepared immediately following notification of shipment of goods, and are
dated the same day of shipment.
1.4 ACTIMMUNE NET SALES. "Actimmune Net Sales" means Actimmune Gross
Sales less adjustments for the following: product returns, Medicare and
Medicaid reimbursements, chargebacks, rebates, state payments, other
contractual reimbursement, and cash discounts.
1.5 ACTIMMUNE UNITS. "Actimmune Units" means vials of
ACTIMMUNE-Registered Trademark- that are sold as commercial product by
InterMune in an arm's length transaction.
1.6 BASELINE. "Baseline" means [ * ] Actimmune Units in 1999; [ * ]
Actimmune Units in 2000; and [ * ] Actimmune Units in 2001, adjusted as
applicable pursuant to Section 2.3(c). For clarity, the Parties intend that the
applicable Baseline shall represent the sales of Actimmune Units for the
treatment of CGD in each of the foregoing years.
1.7 CGD. "CGD" means chronic granulomatous disease, which is the only FDA
approved indication for the sale of Actimmune as of the Effective Date.
1.8 COLLECTION PERIOD. "Collection Period" means one full calendar month
during the Period.
1.9 CORD DISTRIBUTION COSTS. "CORD Distribution Costs" means the actual
monthly payment by InterMune to CORD Logistics, Inc., for distribution services
for sales of Actimmune up to the Baseline.
1.10 GNE ROYALTIES. "GNE Royalties" means the amount of royalties payable
to Genentech, Inc. pursuant to Section 8.3 of the Genentech License for
Actimmune Net Sales.
1.11 PERIOD. "Period" means the time from April 1, 1999 through December
31, 2001.
1.12 PRODUCT COST. "Product Cost" means actual cost paid by InterMune to
the manufacturer for each Actimmune Unit, regardless of whether the manufacturer
is Genentech or a third party manufacturer qualified pursuant to the
manufacturing transition contemplated by Section 3.
1.13 PRODUCT MANAGEMENT COSTS. "Product Management Costs" means
InterMune's actual costs to manage sales of Actimmune Units for the treatment of
CGD up to the Baseline,
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BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
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including all expenses and services related to sales of such Actimmune Units,
such as maintenance of safety databases, etc., tracked on a regular basis and
properly accounted for, at hourly rates to be agreed on by the Parties.
SECTION 2
SERVICES PERFORMED; PAYMENTS
2.1 SERVICES. During the Period, InterMune shall perform, or have
performed, order entry, packaging, shipping, invoicing, and credit and
collection services (subject to Section 2.3(b)) related to sales of Actimmune
Units. All such services shall be performed on a timely basis consistent with
standard industry practices.
2.2 PRODUCT MANAGEMENT COSTS. Except for Product Management Costs,
InterMune shall receive no separate consideration for providing services
under this Agreement. No later than thirty (30) days after the end of each
Collection Period, InterMune shall invoice Connetics for Product Management
Costs for such Collection Period, and Connetics shall remit payment on such
invoices within thirty (30) days after receipt of the invoice. InterMune's
invoice shall be accompanied by a statement itemizing such Product Management
Costs, including a list of all relevant projects, services provided, travel
and other expenses. InterMune agrees that it will not include in Product
Management Costs any non-headcount related expenses or extraordinary expenses
without first obtaining Connetics' authorization to incur such expenses. Any
expenses incurred with the consent of the Commercialization Committee formed
pursuant to Section 2.7 shall be deemed to have been authorized by Connetics
for purposes of this Section 2.2.
2.3 ACCOUNTING FOR ACTIMMUNE UNIT SALES; PAYMENTS TO CONNETICS.
(a) RECORDING REVENUE. During the Period, InterMune agrees that
Connetics shall be entitled to book the Actimmune Net Sales until the total
Actimmune Units sold reaches the Baseline applicable for each calendar year
during the Period, all in accordance with generally accepted accounting
principles, and InterMune will not book such Net Sales or otherwise record
the revenue related to the Net Sales that Connetics is entitled to book
pursuant to this Agreement. For clarification, the payment which Connetics
receives from InterMune pursuant to subsection (c) below, and the sales of
Actimmune Units represented thereby, shall accrue to the total Actimmune
Net Sales booked by Connetics for 1999. InterMune shall be entitled to
book the Actimmune Net Sales for sales of all Actimmune Units above the
Baseline, after the Baseline is met in a given calendar year.
(b) PAYMENTS TO CONNETICS. InterMune shall pay to Connetics the
amount of Actimmune Gross Margin each Collection Period, until the total
Actimmune Units sold reaches the applicable Baseline in each calendar year
during the Period, according to the following schedule: no later than
[ * ] business days after the end of each Collection Period, InterMune
shall (i) submit to Connetics the reports required pursuant to Section 2.4
for the Collection Period just ended, and (ii) remit payment for the
Collection Period immediately preceding such Collection Period, together
with a statement as described in Section 2.4. For purposes of this
Agreement, payments for a given Collection Period shall be due on the
[ * ] business day after the end of the first full calendar month following
that Collection Period
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BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
PAGE 3 OF 12
("Due Date"). To the extent that InterMune has not received payment for
sales of Actimmune Units for a given Collection Period, InterMune's
remittance on the Due Date may exclude any such unpaid amounts, but
InterMune shall remit such amount withheld from Actimmune Gross Margin on
the next Due Date, regardless of whether InterMune has received payment.
Notwithstanding the foregoing, if such unpaid amount from a purchaser of
Actimmune Units remains unpaid six (6) months after the date of invoice
("Bad Debt"), then Connetics shall reimburse InterMune for such Bad Debt
within thirty (30) days following the end of such six month period. In
such case, InterMune shall provide to Connetics the necessary documentation
in its possession for the accounting for and collection of such Bad Debt,
and shall permit Connetics to pursue collection for such Bad Debt.
(c) GROSS MARGIN FOR THE FIRST QUARTER OF 1999. InterMune will make
a one-time payment to Connetics on the Effective Date equal to Actimmune
Gross Margin for the period from January 15, 1999 to March 31, 1999, in the
amount of one hundred fifty-three thousand six hundred fifty-five dollars
($153,655), together with supporting documentation as described in
this Article 2. The amount paid will count toward the total Actimmune Net
Sales booked by Connetics for 1999, as set forth in paragraph (a) above.
(d) OVERDUE PAYMENTS. For each Collection Period, if InterMune fails
to remit payment by the Due Date, the amount due shall accrue interest at
the rate of [ * ] per year until the amount due together with all accrued
interest are paid in full. If InterMune fails for [ * ] consecutive
Collection Periods to remit payment by the Due Date, InterMune hereby
agrees that Connetics shall have the right (at its sole option) to modify
the payment structure described in subsection (b) above so that Connetics
collects all revenue with respect to sales of Actimmune Units, withholds
the Actimmune Gross Margin, and remits the balance to InterMune. In such
event:
(i) InterMune shall take all action necessary to provide
Connetics with the necessary permissions and authorization to make
such modifications to the payment structure, in accordance with a
payment and reporting schedule equivalent to that set forth in
Subsection (b) above;
(ii) The provisions of Sections 2.4 and 2.6 shall apply MUTATIS
MUTANDIS; and
(iii) At the termination or expiration of this Agreement,
Connetics' right to collect revenues for the sales of Actimmune Units
shall terminate and InterMune shall thereafter have the right to
collect all revenues for such sales. Connetics shall take all action
necessary to provide InterMune with the necessary permissions and
authorization to allow InterMune to collect such revenues.
(e) SALES BELOW BASELINE. The Parties agree that, if Actimmune Unit
sales are [ * ] or more below the Baseline (on a quarterly-adjusted basis)
for a period of [ * ] days following [ * ], they will meet to evaluate the
effect of [ * ] on sales volume compared with historical trends and other
market dynamics. If the sales of Actimmune Units remain below the Baseline
for the second [ * ] day period following such price increase, the Parties
agree
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BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
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to re-set the Baseline, provided that such lower sales are not attributable
to an extraordinary circumstance, such as an interruption in supply. If,
however, sales of Actimmune Units increase during such second [ * ] day
period, the Parties agree to review the market dynamics and trends from
prior years with respect to CGD patients, and to make a final decision
regarding whether and to what extent to re-set the Baseline. The revised
Baseline number shall be deemed to be the Baseline for all relevant
purposes of this Agreement beginning with the date the revised Baseline is
agreed upon (or such earlier date as the Parties may agree). If the
Parties cannot agree on an appropriate adjustment to the Baseline following
[ * ] as set forth in this subsection, then the proposals of each Party
shall be referred for resolution according to the mechanism set forth in
Section 5.9.
(f) SALES ABOVE THE BASELINE. During 2000 and 2001, if Actimmune
Net Sales in any given calendar quarter exceed the Baseline (as may be
adjusted pursuant to subsection (e) above) for that quarter by more than
twenty-five percent (25%), Connetics agrees that it will make available
to InterMune a short-term loan for the purpose of offsetting any deferred
net profits that InterMune might have realized for such quarter had it
been entitled to book those Actimmune Net Sales. The Parties agree to
negotiate the terms of such a loan in good faith, in an amount that
approximates the profits deferred by InterMune for Actimmune Unit sales
above Baseline for the relevant quarter, at an interest rate equivalent
to Connetics' then current short-term investment rate, and that repayment
of the loan shall be tied to InterMune's right to book sales after
Baseline is met for the year. The loan shall be made in accordance with
documentation to be mutually agreed upon at the time of the loan.
2.4 MONTHLY STATEMENTS AND REPORTS TO BE PROVIDED BY INTERMUNE. On the
[ * ] business day of each month, InterMune shall furnish to Connetics:
(a) with respect to the Collection Period just ended, a report or
reports (in a format reasonably acceptable to Connetics), listing the
quantities of Actimmune Units sold and related sales dollars (itemized by
customer and/or distributor), cost of Actimmune Units sold, inventory of
Actimmune Units as of the end of the Collection Period, accounts receivable
aging summary, returns, chargebacks, and rebates; and
(b) with respect to the Collection Period ended a month earlier,
payment of the Actimmune Gross Margin together with a statement that
reconciles the payment submitted with the reports submitted for the same
Collection Period in the prior month, and which includes all the
information necessary to calculate Actimmune Gross Sales, Actimmune Net
Sales, Actimmune Gross Margin and the payment made to Connetics. The
principal financial officer of InterMune shall certify that such monthly
statement complies with this Agreement.
In addition to the periodic reporting outlined above, InterMune shall continue
to permit Connetics [ * ] as InterMune might use during the term of this
Agreement. The initial report pursuant to subsection 2.4(a) shall be due on
May 4, 1999, and the initial statement and payment pursuant to subsection 2.4(b)
shall be due on June 2, 1999. InterMune's obligation to submit reports,
statements and payments shall continue after the term of this Agreement, until
all Collection Periods during the term have been fully accounted for.
2.5 ROYALTY PAYMENTS TO GENENTECH. InterMune shall remit to Genentech any
amounts payable on Actimmune Net Sales for third party royalties and for GNE
Royalties, all as required by the Genentech License. InterMune covenants and
agrees to remit the full amount of
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BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
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such royalties directly to Genentech or the applicable third party, and shall
indemnify Connetics against any action by Genentech or such third party to
collect royalties for Actimmune Unit Sales made after the Effective Date and
during the term of this Agreement.
2.6 AUDIT. During the term of this Agreement, and for [ * ] years after
expiration or termination of this Agreement, InterMune shall permit an
independent auditor, reasonably acceptable to InterMune, to have access to
InterMune's records as may be necessary to verify the accuracy of the statements
provided to Connetics under this Agreement, including Actimmune Gross Sales,
Actimmune Net Sales, and Actimmune Gross Margin, and to assure that InterMune
has complied with the payment terms of this Agreement. Such records shall be
open during reasonable business hours for examination at Connetics' expense, and
not more often than once each calendar year, by such independent auditor (who
shall be required to enter into a binder of confidentiality with InterMune).
2.7 COMMERCIALIZATION COMMITTEE. The Parties shall establish a
Commercialization Committee which shall be responsible for monitoring progress,
managing information exchange between the Parties, deciding key strategies and
solving problems with respect to commercialization and promotion of Actimmune
for the CGD market. At the first meeting of the Commercialization Committee,
the members shall establish a regular meeting time and structure, and appoint a
secretary whose responsibility it will be to coordinate the timing, notice, and
agendas for Commercialization Committee meetings.
SECTION 3
MANUFACTURING COST TRANSITION
3.1 OFFSET TO TRANSITION COSTS. The Parties anticipate that the
transfer of manufacturing to a third party manufacturer could result in a
substantial reduction in the Product Cost for Actimmune. As an incentive to
InterMune to complete the transfer of manufacturing of Actimmune to a third
party manufacturer pursuant to Section 4.1 of the Genentech Supply Agreement
before May 2001, and in consideration of an increase in Actimmune Gross
Margin during the Period by virtue of such lower Product Cost, Connetics
agrees to reimburse InterMune for half of InterMune's actual costs to effect
such transfer of manufacturing up to a maximum payment of $420,000 (I.E., 50%
of $840,000 actual costs), subject to adjustment as follows for each
subsequent quarter that the transfer is not complete:
Amount Payable by Connetics* If Transfer is Complete by:
---------------------------- ---------------------------
$420,000 July 1, 2000
$350,000 October 1, 2000
$280,000 January 1, 2001
$210,000 April 1, 2001
$140,000 July 1, 2001
$70,000 October 1, 2001
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BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
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----------------
* The amounts payable by Connetics listed above assume a
minimum reduction of forty percent (40%) in Product Cost (I.E., a new Product
Cost that is at least 40% lower than the Product Cost as of the Effective
Date). Accordingly, if the transition is completed by the target date but
results in a savings of less than 40%, the amount payable by Connetics shall
be reduced in proportion to the lower savings. By way of example, if the
transfer is completed before July 1, 2000, but results in a savings of 20%
instead of 40%, the maximum amount payable by Connetics shall be $210,000.
3.2 COMPLETION OF MANUFACTURING TRANSFER. For purposes of this Agreement,
the transfer of manufacturing from Genentech to a third party manufacturer shall
be deemed to be complete in the first Collection Period for which [ * ].
3.3 PAYMENT TERMS. Any payment by Connetics pursuant to this Section 3
shall be payable in cash no later than thirty (30) days following completion of
the manufacturing transfer as set forth in Section 3.2.
SECTION 4
CONFIDENTIALITY
4.1 CONFIDENTIAL INFORMATION OBLIGATIONS. As used herein, "Confidential
Information" means all information that a Party discloses to the other Party
under this Agreement, provided that "Confidential Information" shall not include
such information excluded under Section 4.2. Except to the extent expressly
authorized by this Agreement or otherwise agreed in writing by the Parties, each
Party agrees that, during the term of this Agreement and for [ * ] years after
the expiration or termination of this Agreement, it shall keep confidential and
shall not publish or otherwise disclose and shall not use for any purpose other
than as provided for in this Agreement any Confidential Information furnished to
it by the other Party pursuant to this Agreement.
4.2 EXCEPTIONS. The obligations set forth in Section 4.1 shall not apply to
any Information that the receiving Party can demonstrate by competent evidence:
(a) was already known to the receiving Party, other than under an
obligation of confidentiality, at the time of disclosure by the other
Party;
(b) was generally available to the public or otherwise part of the public
domain at the time of its disclosure to the receiving Party by the other
Party;
(c) became generally available to the public or otherwise part of the
public domain after its disclosure and other than through any act or
omission of the receiving Party in breach of this Agreement;
(d) was disclosed to the receiving Party, other than under an obligation
of confidentiality to a third Party, by a third Party who had no obligation
to the disclosing Party not to disclose such information to others; or
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BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
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(e) is independently developed by the receiving Party without using any of
the other Party's Confidential Information.
4.3 PERMITTED DISCLOSURE. Notwithstanding the limitations in this Article 4,
each Party may disclose Confidential Information belonging to the other Party
(or otherwise subject to this Article 4), to the extent such disclosure is
reasonably necessary in the following instances, but solely for the limited
purpose of such necessity:
(a) regulatory and tax filings;
(b) prosecuting or defending litigation;
(c) complying with applicable governmental laws or regulations or valid
court orders; or
(d) disclosure to affiliates, employees, consultants or agents who agree
to be bound by similar terms of confidentiality and non-use at least
equivalent in scope to those set forth in this Article 4.
Notwithstanding the foregoing, in the event a Party is required to make a
disclosure of the other Party's Confidential Information pursuant to Section
4.4, it will give reasonable advance notice to the other Party of such
disclosure and endeavor in good faith to secure confidential treatment of such
information. In any event, the Parties agree to take all reasonable action to
avoid disclosure of Confidential Information hereunder. Further, the Parties
agree to consult with one another on the provisions of this Agreement to be
redacted in any filings made by a Party with the United States Securities and
Exchange Commission or as otherwise required by law.
SECTION 5
GENERAL PROVISIONS
5.1 NO OFFSET. Neither Party shall be entitled to offset any amounts due
to the other Party under this Agreement against any amounts due from such other
Party pursuant to this Agreement or other agreements between the Parties.
Notwithstanding the foregoing sentence, any amounts due to a Party under this
Agreement that are [ * ] or more days overdue may be offset by such Party
against any amounts such Party owes the other Party under this Agreement.
5.2 SURVIVAL. The payment and reporting obligations set forth in Article
2, and the provisions of Section 2.6 and Article 4 shall survive any expiration
or termination of this Agreement, as will all rights accrued and obligations
incurred hereunder prior to such expiration or termination.
5.3 TERM AND TERMINATION. The term of this Agreement shall coincide with
the Period, and this Agreement will expire with no further action required by
either Party on December 31, 2001. In addition, either Party may terminate this
Agreement on no less than [ * ] days' notice to the other Party for material
breach of this Agreement by that Party.
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BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
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5.4 WAIVER. No waiver by either Party of any breach or default of any of
the covenants or agreements set forth in this Agreement shall be deemed a waiver
as to any subsequent or similar breach or default.
5.5 ASSIGNMENT. This Agreement shall be binding upon and inure to the
benefit of the Parties and their permitted successors and assigns; PROVIDED,
HOWEVER, that neither Party shall assign any of its rights and obligations under
this Agreement without the prior written consent of the other Party, except as
incident to the merger, consolidation, reorganization or acquisition of stock or
assets affecting substantially all of the assets or actual voting control of the
assigning Party. Any assignment or attempted assignment by either Party in
violation of the terms of this Section 4.2 shall be null and void and of no
legal effect.
5.6 NOTICES. Any notice or other communication required or permitted to
be given to either Party shall be in writing and shall be deemed to have been
properly given and to be effective on the date of delivery if delivered in
person or by facsimile or five (5) days after mailing by registered or certified
mail, postage paid, to the other Party at the following address:
In the case of InterMune: InterMune, Inc.
0000 Xxxx Xxxxxxxx Xxxx
Xxxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: President
In the case of Connetics: Connetics Corporation
0000 Xxxx Xxxxxxxx Xxxx
Xxxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Chief Executive Officer
Either Party may change its address for communications by a notice to the other
Party in accordance with this Section.
5.7 HEADINGS. The headings of the several sections are inserted for
convenience of reference only and are not intended to be a part of or to affect
the meaning or interpretation of this Agreement.
5.8 AMENDMENT. No amendment or modification hereof shall be valid or
binding upon the Parties unless made in writing and signed by both Parties.
5.9 GOVERNING LAW. This Agreement shall be governed exclusively by the
laws of the California, as such law applies to contracts entered into between
and to be performed by California residents entirely in California.
5.10 DISPUTE RESOLUTION.
(a) In the event of any controversy or claim arising out of, relating
to or in connection with any provision of this Agreement, or the rights or
obligations of the Parties, the Parties shall try to settle their differences
amicably between themselves by referring the disputed
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BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
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matter to the President of InterMune and the Chief Executive Officer of
Connetics for discussion and resolution. Either Party may initiate such
informal dispute resolution by sending written notice of the dispute to the
other Party, and within ten (10) days after such notice such representatives of
the Parties shall meet for attempted resolution by good faith negotiations.
(b) If such personnel are unable to resolve such dispute within
thirty (30) days of initiating such negotiations, either Party may seek to have
such dispute resolved by binding arbitration under this Section 5.9. The
arbitration shall be held in Palo Alto, California according to the Commercial
Arbitration Rules of the American Arbitration Association (the "Rules"). The
arbitration will be conducted by a panel of three (3) arbitrators who are
knowledgeable in the subject matter that is at issue in the dispute, are not
affiliated directly or indirectly with either Party, and are selected by mutual
agreement of the Parties. Failing such agreement, the arbitrators shall be
selected appointed as provided in the Rules. During the arbitration, the
Parties shall have such discovery rights as the arbitrators may allow,
consistent with the discovery permitted by the Federal Code of Civil Procedure.
In conducting the arbitration, the arbitrators shall apply the rules of evidence
applicable in California, and shall be able to decree any and all relief of an
equitable nature, including but not limited to such relief as a temporary
restraining order, a preliminary injunction, or a permanent injunction, as well
as specific performance. The arbitrators shall also be able to award direct and
indirect damages, but shall not award any other form of damage (E.G., punitive
or exemplary damages).
(c) The reasonable fees and expenses, of the arbitrators, along with
the reasonable legal fees and expenses of the prevailing Party (including all
expert witness fees and expenses), the fees and expenses of a court reporter,
and any expenses for a hearing room, shall be paid as follows: If the
arbitrators rule in favor of one Party on all disputed issues in the
arbitration, the losing Party shall pay 100% of such fees and expenses; if the
arbitrators rule in favor of one Party on some issues and the other Party on
other issues, the arbitrators shall issue with the rulings a written
determination as to how such fees and expenses shall be allocated between the
Parties. The arbitrators shall allocate fees and expenses in a way that bears a
reasonable relationship to the outcome of the arbitration, with the Party
prevailing on more issues, or on issues of greater value or gravity, recovering
a relatively larger share of its legal fees and expenses.
(d) The decision of the arbitrators shall be final and may be
entered, sued on or enforced by the Party in whose favor it runs in any court of
competent jurisdiction at the option of such Party. Whether a claim, dispute or
other matter in question would be barred by the applicable statute of
limitations, which statute of limitations also shall apply to any claim or
disputes subject to arbitration under this Section, shall be determined by
binding arbitration pursuant to this Section.
5.11 FORCE MAJEURE. Any delays in performance by any Party under this
Agreement shall not be considered a breach of this Agreement if and to the
extent caused by occurrences beyond the reasonable control of the Party
affected, including but not limited to acts of God, embargoes, governmental
restrictions, fire, flood, explosion, riots, wars, civil disorder, rebellion or
sabotage. The Party suffering such occurrence shall immediately notify the
other Party as soon as practicable, and any time for performance hereunder shall
be extended by the actual time of delay caused by the occurrence.
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
PAGE 10 OF 12
5.12 INDEPENDENT CONTRACTORS. In making and performing this Agreement,
InterMune and Connetics act and shall act at all times as independent
contractors and nothing contained in this Agreement shall be construed or
implied to create an agency, partnership or employer and employee relationship
between InterMune and Connetics. At no time shall one Party make commitments or
incur any charges or expenses for or in the name of the other Party.
5.13 SEVERABILITY. If any part of this Agreement is declared invalid by
any legally governing authority having jurisdiction over either Party, then such
declaration shall not affect the remainder of the Agreement and the Parties
shall revise the invalidated part in a manner that will render such provision
valid without impairing the Parties' original interest.
5.14 CUMULATIVE RIGHTS. The rights, powers and remedies under this
Agreement shall be in addition to, and not in limitation of, all rights, powers
and remedies provided at law or in equity, or under any other agreement between
the Parties. All of such rights, powers and remedies shall be cumulative, and
may be exercised successively or cumulatively.
5.15 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be an original and all of which shall
constitute together the same document.
5.16 ENTIRE AGREEMENT. This Agreement, in conjunction with the other
"Intercompany Agreements" (as that term is described in the Collaboration
Agreement), embodies the entire understanding of the Parties with respect to
the subject matter of the Intercompany Agreements, and supersedes and terminates
all previous communications, representations or understandings, either oral or
written, between the Parties relating to the subject matter of the Intercompany
Agreements.
[INTENTIONALLY LEFT BLANK]
SIGNATURE PAGE FOLLOWS
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
PAGE 11 OF 12
IN WITNESS WHEREOF, both InterMune and Connetics have executed this
Agreement, as of the day and year first written above.
INTERMUNE PHARMACEUTICALS, INC. CONNETICS CORPORATION
By: /s/ W. Xxxxx Xxxxxxxx By: /s/ X. Xxxxxxx
------------------------------ ------------------------------------------
Name: W. Xxxxx Xxxxxxxx Name: Xxxxxx X. Xxxxxxx
---------------------------- ----------------------------------------
Title: President Title: President and Chief Executive Officer
--------------------------- ---------------------------------------
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
PAGE 12 OF 12
