EXHIBIT 10.3
DRUG DISCOVERY COLLABORATION AGREEMENT
THIS DRUG DISCOVERY COLLABORATION AGREEMENT ("Agreement"), effective as
of August 7, 2001 ("Effective Date"), is made by and between ICOS Corporation, a
Delaware corporation having its principle offices located at 00000 00xx Xxxxxx
X.X., Xxxxxxx, XX 00000, (hereinafter "ICOS"), and ARRAY BIOPHARMA CORPORATION,
a Delaware corporation having its principle offices located at 0000 00xx Xxxxxx,
Xxxxxxx, XX 00000, (hereinafter "Array").
BACKGROUND
A. Array has skills, expertise and experience in developing and generating
focus libraries, and in lead optimization, computational chemistry and medicinal
chemistry;
B. As of the Effective Date, ICOS has developed and owns certain know-how,
intellectual property rights, assays, methods, and hit compounds that may be
potential drug candidates directed to certain [***] targets;
C. ICOS and Array desire to collaborate to identify orally active small
molecules for the therapeutic or prophylactic treatment of diseases and
conditions in humans, the mechanism of action of which is to modulate the
activity of specific Active Targets (as defined below), with the goal of
delivering compounds with desired activity and selectivity, all on the terms and
conditions herein.
NOW, THEREFORE, in consideration of the mutual promises herein, the parties
agree as follows:
ARTICLE 1
DEFINITIONS
1.1 "Active Target" shall have the meaning set forth in Section 2.2 below.
1.2 "Affiliate" shall mean any corporation or other entity which is
directly or indirectly controlling, controlled by or under common control of a
Party hereto for so long as such control exists. For the purposes of this
Section 1.2, "control" shall mean the direct or indirect ownership of at least
fifty percent (50%) of the outstanding shares or other voting rights of the
subject entity having the power to vote on or direct the affairs of the entity,
or if not meeting such preceding condition, the maximum voting right that may be
held by the particular Party under the laws of the country where such entity
exists.
[***] CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED OF REDACTED PORTIONS
1.3 "Array Technology" shall mean patents or other rights to compositions,
methodologies, and processes for the high speed synthesis of chemical entities
owned by Array. Array Technology shall not include Compounds, IDAS Focus
Libraries or Drug Development Candidates.
1.4 "Collaboration Technology" shall mean all inventions and other
intellectual property, including without limitation any Patent Rights and
Know-How relating thereto, made by Array and/or ICOS in the course of performing
or in connection with the Research Program. It is understood that the
Collaboration Technology shall not include any Array Technology.
(a) "Patent Rights" shall mean (i) all patents and patent applications
the subject of which is an invention conceived and reduced to practice
solely or jointly by Array and/or ICOS in the course of performing the
Research Collaboration, that claim a Compound, including without limitation
a Drug Development Candidate, or method of use or process for the synthesis
thereof or composition-of-matter containing such Compound, and (ii) any
divisions, continuations, continuations-in-part, reissues, reexaminations,
extensions or other governmental actions which extend any of the subject
matter of the patent applications or patents in (i) above, and any
substitutions, confirmations, registrations or revalidations of any of the
foregoing, to the extent Array or ICOS has the right to license the same;
provided, however, that Patent Rights shall not include any Array
Technology.
(b) "Know-How" shall mean all ideas, inventions, data, instructions,
processes, formulas, expert opinions and information, including, without
limitation, biological, chemical, pharmacological, toxicological,
pharmaceutical, physical and analytical, clinical, safety, manufacturing
and quality control data and information developed solely or jointly by
Array and ICOS during and in connection with the Research Collaboration, in
each case, which is necessary for the development, manufacture, use or sale
or commercialization of Compounds or Products, to the extent Array or ICOS
has the right to license or sublicense the same; provided, however, that
Know-How does not include any Array Technology or any inventions otherwise
included in the Patent Rights.
1.5 "Compound" shall mean a chemical entity synthesized by or on behalf of
Array and delivered to ICOS in the course of the Research Program. As used
herein, Compound shall include IDAS Focus Library Compounds and Drug Development
Candidates.
1.6 "Confidential Information" shall mean any information disclosed by a
Party (the "Disclosing Party") to the other Party (the "Receiving Party") which
if disclosed in tangible form is marked "confidential" or with other similar
designation to indicate its confidential or proprietary nature or if disclosed
orally is indicated orally to be confidential or proprietary by the Disclosing
Party at the time of such disclosure and is confirmed in writing as confidential
or proprietary by the Disclosing Party within forty-five (45) days after such
disclosure. Notwithstanding the foregoing,
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HAS BEEN REQUESTED OF REDACTED PORTIONS
Confidential Information shall not include any information that, in each case as
demonstrated by written documentation:
(a) was already known to the Receiving Party, other than under an
obligation of confidentiality, at the time of disclosure;
(b) was generally available to the public or otherwise part of the
public domain at the time of its disclosure to the Receiving 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 subsequently lawfully disclosed to the Receiving Party by a
third party who did not acquire it directly or indirectly from the
Disclosing Party;
(e) was developed by the Receiving Party without use of or reference
to any Confidential Information of the Disclosing Party.
1.7 "Consumer Price Index" or "CPI" means the Consumer Price Index, All
Urban Consumers, as published by the U.S. Bureau of Labor Statistics.
1.8 "Derivative" shall mean a compound (or compounds) which (i) has
resulted from a chemical synthesis program by ICOS based on one or more
Compounds or (ii) is based on structure-activity data relating to a Compound
which is active or inactive in the Field. "Derivative" shall also include any
compound made based on, derived from, or related to another Derivative in any
way set forth in subsections (i) or (ii) above.
1.9 "Drug Development Candidate" shall mean any Compound designated as a
Drug Development Candidate as set forth in Section 2.6.
1.10 "Drug Development Targets" shall mean those IDAS targets listed in
Exhibit A, or as otherwise agreed in writing by the Parties.
1.11 "Europe" shall mean those countries listed in Exhibit B.
1.12 "Extension Period" shall have the meaning set forth in Section 2.7(b)
below.
1.13 "Field" shall mean the discovery, development and commercialization of
active small molecules for the therapeutic or prophylactic treatment of diseases
and conditions in humans, the mechanism of action of which is to modulate the
activity of an Active Target.
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HAS BEEN REQUESTED OF REDACTED PORTIONS
1.14 "FTE" shall mean a full-time person dedicated to the Research Program,
or in the case of less than a full-time, dedicated person, a full-time,
equivalent person year, based upon a total of one thousand eight hundred eighty
(1,880) hours per year of work in connection with the Research Program.
1.15 "IDAS Focus Library" shall mean a combinatorial compound library that
is based on a Compound or other chemical entity identified by ICOS as having
activity against a Drug Development Target.
1.16 "IDAS Focus Library Compound" shall mean any chemical entity that is
contained in an IDAS Focus Library.
1.17 "NDA" shall mean a New Drug Application, as defined in the U.S. Food,
Drug and Cosmetic Act and the regulations promulgated thereunder, or any
corresponding foreign application, registration or certification.
1.18 "Net Sales" shall mean the gross invoice price by ICOS or its
Affiliates or Sublicensees, as the case may be, for all Products sold by ICOS,
its Affiliates or Sublicensees ("Selling Party"), under this Agreement in arm's
length sales to Third Parties, less deductions allowed to the Third Party
customer by the Selling Party on such sales for: (a) trade, quantity, and cash
discounts; (b) credits, rebates (including those to managed-care entities and
government agencies), and allowances or credits to customers on account of
rejection or returns (including, but not limited to, wholesaler and retailer
returns) or on account of retroactive price reductions affecting such Product;
(c) freight, postage and duties; and (d) sales and excise taxes, other
consumption taxes, customs duties and compulsory payments to governmental
authorities and any other governmental charges imposed upon the sale of such
Product to Third Parties. In addition, the Selling Party may exclude from Net
Sales a reasonable provision for uncollectible accounts, to the extent such
reserve is determined in accordance with generally accepted accounting
standards, consistently applied across all product lines of the particular
Party, until such amounts are actually collected. Notwithstanding the foregoing,
Net Sales shall not include sales among ICOS, its Affiliates and Sublicensees
for resale, provided that such resale shall be included within Net Sales.
1.19 "Party" or "Parties" shall mean, respectively, Array or ICOS
individually, or Array and ICOS collectively.
1.20 "Patent" shall mean (a) an issued, granted, valid and enforceable U.S.
or non U.S. Patent, and any non-U.S. equivalent, including any extension
(including Supplemental Protection Certificates), registration, confirmation,
reissue, continuation, divisionals, continuation-in-part, reexamination or
renewal thereof, or (b) pending applications for any of the foregoing.
1.21 "Phase III" shall mean human clinical trials, the principal purpose of
which is to establish safety and efficacy of one or more particular doses in
patients being studied, and which will
-4. [***] CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED OF REDACTED PORTIONS
(or are intended to) satisfy the requirements of a pivotal trial for purposes of
obtaining approval of a Product in a country by the health regulatory authority
in such country to market such Product.
1.22 "Product" shall mean any product incorporating as an active ingredient
a Compound, a Drug Development Candidate or a Derivative.
1.23 "Research Management Committee" shall have the meaning set forth in
Section 3.1 below.
1.24 "Research Plan" shall have the meaning set forth in Section 2.3 below.
1.25 "Research Program" shall mean the research activities undertaken by
the Parties pursuant to Article 2 below.
1.26 "Research Term" shall have the meaning set forth in Section 2.7(a)
below.
1.27 "SAR Information" shall mean information relating to the relationship
between the biological activity of a chemical entity and its molecular
structure.
1.28 "Sublicensee" shall mean, with respect to a particular Product, a
Third Party to whom ICOS has granted a sublicense to make and sell such Product.
As used in this Agreement, "Sublicensee" shall also include a Third Party to
whom ICOS has granted the right to distribute such Product, provided that such
Third Party has responsibility for marketing and promotion of such Product
within the field or territory for which such distribution rights are granted.
1.29 "Third Party" shall mean any person or entity other than Array and
ICOS, and their respective Affiliates.
1.30 "Valid Claim" shall mean (i) an issued, granted and enforceable claim
in a Patent, or (ii) a claim of a patent application within the Patent Rights,
which claim has been pending less than two (2) years from the filing date of
such claim.
ARTICLE 2
RESEARCH PROGRAM
2.1 Objectives. The goal of the Research Program is the generation of
Compounds and the identification of Drug Development Candidates within the
Field.
2.2 Targets.
(a) General. Except as otherwise provided in this Section 2.2, the
Research Collaboration shall be focused on identifying chemical entities
that have activity against [***]
-5. [***] CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED OF REDACTED PORTIONS
specific Drug Development Targets (each an "Active Target"). The Parties
have agreed that the [***] protein target shall be an Active Target as of
the Effective Date.
(i) Within [***] after the Effective Date, ICOS shall select a
[***] from the remaining Drug Development Targets, and upon notice to
Array of such selection, the selected Drug Development Target shall be
deemed an Active Target for purposes of this Agreement.
(ii) During the Research Term, the Research Plan may provide for
the conduct of screening activities directed toward each of the Drug
Development Targets, regardless of whether such Target has been
designated as an Active Target hereunder.
(b) Abandonment and Substitution of Targets. The Research Management
Committee may decide to discontinue research activities with respect to one
or more Active Targets, in which event (i) such Active Target shall not
after the effective date of such decision be, or be deemed to be, an Active
Target for purposes of this Agreement. In the event that research
activities are discontinued with respect to any Active Target pursuant to
this Section 2.2(b), then ICOS may substitute, after discussion with the
Research Management Committee and mutual agreement of the Parties, another
Drug Development Target in its place as an Active Target for purposes of
this Agreement.
(c) Additional Drug Development Targets. Upon request of ICOS and
subject to the consent of Array, the Research Collaboration may be expanded
to include additional Drug Development Targets in excess of the number set
forth in Section 2.2(a), but under no circumstances shall there be more
than [***] Drug Development Targets at any one time which may be considered
for research activities under this Agreement.
(d) Screening. ICOS may use any Compounds supplied by Array for
screening on other targets outside the Field at any time.
2.3 Research Plan. The Research Program shall be carried out in
accordance with a mutually agreed upon written "Research Plan", which shall
establish specific research objectives and the research tasks to be performed
and resources to be provided by each Party. The Research Plan shall, among other
things, establish: (i) the scope of the research activities which will be
performed; (ii) the research objectives and work plan activities; (iii) the
respective obligations of the Parties with respect to the Research Program; and
(iv) specific screening assays for identifying and testing the activity of
compounds against an Active Target. The proposed research plan, with such
changes as are mutually agreed shall become the initial "Research Plan".
(a) Periodic Review. The Research Plan shall be reviewed on an ongoing
basis and may be amended by the Research Management Committee.
2.4 Research Program Activities. Subject to the terms and conditions
set forth herein, the parties agree to conduct research under the Research Plan.
During the Research Term, Array and
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HAS BEEN REQUESTED OF REDACTED PORTIONS
ICOS shall each use their commercially diligent efforts to identify Compounds
having activity against an Active Target and Drug Development Candidates in
accordance with the Research Plan.
(a) Array Responsibilities. During the Research Term, Array shall make
the following resources available in connection with the obligations as
specified in the Research Plan:
(i) Review data and information, including SAR Information,
regarding the Active Targets, screening hits and lead compounds
provided by ICOS;
(ii) Based on data and information, including SAR Information,
regarding the Active Targets, screening hits and lead compounds
provided by ICOS, use computational and structural biology to
construct IDAS Focus Libraries and optimize the screening hits and
lead compounds supplied or identified by ICOS;
(iii) Validate and optimize such Compounds having activity
against each Active Target;
(iv) Perform such computational and medicinal chemistry as
necessary for the construction of Drug Development Candidates; and
(v) Evaluate most potent antagonists via pharmacokinetic analysis
and metabolite profiling.
In performing its obligations under (ii) above, [***].
(b) ICOS Responsibilities. During the Research Term, ICOS shall be
primarily responsible for the following obligations, as specified in the
Research Plan, among others:
(i) Primary and secondary screening for activity and selectivity;
(ii) In vitro and in vivo assays and animal models;
(iii) Establishing mechanism of action;
(iv) Pre-clinical and clinical development; and
(v) Provide Array with such necessary support and assistance as
Array may reasonably require, including without limitation, providing
Array with screening hits, lead compounds, SAR Information and other
data and information regarding the Active Targets.
(c) Reporting. During the Research Term, the parties shall provide the
Research Management Committee with regular reports on the results of the
Research Program. Such reports shall be in a form to be mutually agreed by
the parties.
-7. [***] CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED OF REDACTED PORTIONS
2.5 Research Program Staffing. In consideration of the services provided by
Array in performance of the Research Program, ICOS shall fund Array FTEs
performing research under the Research Plan in accordance with Section 5.1 below
and this Section 2.5; further, applicable milestones and royalties shall be paid
when due and owing. Unless the Parties otherwise agree in writing, the Research
Plan shall provide for [***] Array FTEs per year.
2.6 Drug Development Candidates. The parties have established that a
chemical entity which meets the reasonable internal guidelines established by
ICOS for advancing a Compound into pre-clinical studies shall be a Drug
Development Candidate. Any Compound which has been selected by ICOS to undergo
GLP toxicology studies to support a regulatory filing, shall be deemed a Drug
Development Candidate upon such selection. ICOS shall promptly notify Array of
the identification of any Drug Development Candidate.
2.7 Term and Termination of Research Program. The Research Program shall
commence on the Effective Date and continue for the Research Term (as defined
below).
(a) Research Term. The "Research Term" shall mean the period
commencing on the Effective Date and ending on the first to occur of (i)
termination of this Agreement; or (ii) the later of [***] after the
Effective Date, or the end of the Extension Period if the Research Term is
extended under Section 2.7(b) below.
(b) Extension Period. The parties may extend the Research Term for
additional [***] periods upon mutual agreement of the parties (the
"Extension Period").
2.8 Records; Inspection and Retention.
(a) Research Program. Array shall maintain records of the Research
Program (or cause such records to be maintained) in sufficient detail and
in good scientific manner as will properly reflect all work done and
results achieved in the performance of the Research Program. During the
Research Term and for a period of [***] thereafter, Array shall allow ICOS
to have reasonable access to all pertinent materials and data generated by
Array with respect to synthesis of each Compound in connection with the
Research Program. Array shall retain such records for a period of [***], or
such other period agreed by the parties. After this time and on request by
ICOS, Array shall provide to ICOS copies of all such records associated
with any Drug Development Candidate and patents or patent applications
claiming such Drug Development Candidate for retention in ICOS's archives.
(b) Research Program Expenditures. Array shall keep complete, true and
accurate books of account and records of the amounts it expends in
connection with the performance of the Research Program.
-8. [***] CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED OF REDACTED PORTIONS
2.9 Post Research Collaboration Activities. For each Drug Development
Candidate and Product to which ICOS retains rights under this Agreement, Array
shall have no responsibility or expense, for conducting any clinical development
and/or commercialization of such Products.
2.10 Exclusivity. Except as set forth herein, during the period commencing
on the Effective Date and ending [***] after the end of the Research Term, Array
shall not knowingly conduct, participate in, or fund, directly or indirectly,
alone or with a Third Party, discovery research specifically directed to the
Field, except pursuant to this Agreement. In addition, during the Research Term,
Array shall not knowingly conduct, participate in, or fund, directly or
indirectly, alone or with a Third Party, discovery research specifically
directed to the discovery, development and commercialization of active small
molecules for the therapeutic or prophylactic treatment of diseases and
conditions in humans, the mechanism of action of which is to modulate the
activity of a Drug Development Target that is not an Active Target, except
pursuant to this Agreement. Further, during the Research Term and for a period
of [***] thereafter, Array shall not knowingly conduct, participate in, or fund,
directly or indirectly, alone or with other Third Parties, discovery research
specifically directed to the discovery, development and commercialization of
active small molecules for the therapeutic or prophylactic treatment of diseases
and conditions in humans, the mechanism of action of which is [***].
Notwithstanding the foregoing, in the event of a Change of Control of Array, the
provisions of this Section 2.10 shall not apply to the surviving entity. For
purposes of this Section 2.10, a "Change of Control" shall mean the merger,
consolidation, sale of substantially all of its assets or similar transaction or
series of transactions, as a result of which Array's shareholders before such
transaction or series of transactions own less than fifty percent (50%) of the
total number of voting securities of the surviving entity immediately after such
transaction or series of transactions. Notwithstanding the foregoing, if as a
result of any such Change of Control, Array exists as a wholly owned subsidiary
of a parent, then the provisions of this Section 2.10 shall continue to apply to
Array, but not to such parent.
ARTICLE 3
MANAGEMENT
3.1 Research Management Committee. As soon as practicable after the
Effective Date and in any event not later than fifteen (15) days, ICOS and Array
will convene the first meeting of a committee to oversee, review, co-ordinate
and recommend direction of the Research Program (the "Research Management
Committee"). The responsibilities of the Research Management Committee shall
include, among other things: (i) monitoring and reporting research progress and
ensuring open and frequent exchange between the Parties regarding Research
Program activities; (ii) coordination of a collaborative discovery and
optimization program to identify Drug Development Candidates for each Target;
and (iii) amending as necessary the criteria for the selection of Drug
Development Candidates for each Target.
3.2 Membership. The Research Management Committee shall include two (2)
representatives of each of ICOS and Array, each Party's members selected by that
Party and the
-9. [***] CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED OF REDACTED PORTIONS
Parties hereto shall nominate and name their representations not
later than the Effective Date. Array and ICOS may each replace its Research
Management Committee representatives at any time, upon written notice to the
other Party. From time to time, the Research Management Committee may establish
subcommittees, to oversee particular projects or activities, and such
subcommittees will be constituted organised and structured as the Research
Management Committee agrees but shall not hold any greater powers than the
Research Management Committee itself.
3.3 Meetings. During the Research Term, the Research Management Committee
shall meet at least quarterly, or as agreed by the Parties, at such locations as
the Parties agree, and will otherwise communicate regularly by telephone,
electronic mail, facsimile and/or video conference. Other representatives of
Array or ICOS may attend Research Management Committee meetings as observers.
Each Party shall be responsible for all of its own expenses associated with
attendance of such meetings.
3.4 Minutes. The Research Management Committee shall keep accurate minutes
of its meetings which shall record all proposed decisions and all actions
recommended or taken. The Secretary of the Research Management Committee (as
appointed by the members of the Research Management Committee) shall be
responsible for the preparation of draft minutes. Draft minutes shall be sent to
all members of the Research Management Committee after each meeting and shall be
approved, if appropriate, at the next meeting. All records of the Research
Management Committee shall at all times be available to both Array and ICOS.
3.5 Decision Making. Decisions of the Research Management Committee shall
be made by majority agreement. [***].
ARTICLE 4
LICENSES
4.1 Research Use Licenses.
(a) Grant from ICOS. ICOS hereby grants Array a worldwide,
non-exclusive, non-transferable, non-sublicensable, royalty-free, right and
license under any/all applicable ICOS Technology and ICOS's interest in the
Collaboration Technology solely to conduct activities designated to Array
under the Research Plan during the Research Term.
(b) Grant from Array. Array hereby grants ICOS a worldwide,
non-exclusive, non-transferable, non-sublicensable, royalty-free, right and
license under Array's interest in the Collaboration Technology solely to
conduct activities designated to ICOS under the Research Plan, during the
Research Term.
(c) Limitations on Licenses under this Section. The licenses granted
under this Section 4.1 shall not include the right to grant or authorize
sublicenses; provided, however, that the
-10. [***] CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED OF REDACTED PORTIONS
use by ICOS or Array of subcontractors approved by the Research Management
Committee shall not be construed as a sublicense. Neither Array nor ICOS
shall have any right to sell or otherwise distribute any products by virtue
of the licenses set forth in this Section 4.1 and no such sale or
distribution right shall be implied.
4.2 Exclusive License. Array hereby grants to ICOS a worldwide exclusive
license, with the right to grant and authorize sublicenses, under Array's
interest in the Collaboration Technology, to make, have made, use, sell, lease,
offer to sell or lease, import, export or otherwise transfer physical possession
of or title in Compounds, Drug Development Candidates and Products.
4.3 Marketing Rights. ICOS shall have the exclusive right to market, sell
and distribute Products in the Field and outside the Field. In exercising such
rights, ICOS may select trademarks for such Products, and ICOS shall own all
right, title or interest in such trademarks (subject to any pre-existing rights
of Array or Third Parties).
4.4 No Implied Licenses. Only the licenses granted pursuant to the express
terms of this Agreement shall be of any legal force or effect. No other license
or rights, including without limitation any license or right to Array Technology
shall be created by implication, estoppel or otherwise.
4.5 No Commercialization Other than Products. Except as otherwise agreed in
writing or specifically provided in the terms of this Agreement, neither ICOS
nor its Affiliates nor Licensees shall, directly or indirectly commercialize any
Compound, Drug Development Candidate or Derivative in the Field or outside the
Field, other than as a Product in accordance with this Agreement.
ARTICLE 5
PAYMENTS
5.1 Research Program Funding. In consideration of the services to be
performed by Array under this Agreement, ICOS shall pay Array for the FTE costs
and Development Costs incurred by Array in accordance with performance of the
Research Plan, as described more fully below.
(a) FTEs. During the Research Term, ICOS agrees to pay Array research
funding for the conduct of the Research Program quarterly, in advance, in
an amount equal to the number of Array FTEs called for in the Research Plan
for the applicable quarter multiplied by the Array FTE Rate (as defined
below). The range of FTEs for particular periods within the Research Term
is set forth in Section 2.5, as may be modified by the Research Plan. The
"Array FTE Rate" shall be equal to [***] U.S. dollars [***] per FTE per
year. Effective after the [***] of the Effective Date, the FTE Rate shall
increase [***] by the percentage increase, if any, in the Consumer Price
Index for all Urban Consumers, as published by the U.S. Department of
Labor, Bureau of Statistics, since the Effective Date or the last
adjustment hereunder, whichever is later. The payments subject to this
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HAS BEEN REQUESTED OF REDACTED PORTIONS
Section 5.1(a) shall be paid in quarterly installments, in advance. The
initial payment shall be made on or before the date Array FTEs are first
deployed in accordance with the Research Plan, and subsequent payments
shall be made on or before the first day of each calendar quarter
thereafter. Such payments are non-refundable.
(b) Non-FTE Costs. ICOS also agrees to reimburse Array for any
extraordinary chemical costs incurred by Array which are approved in
writing by ICOS.
(c) No Withholding. All amounts paid by ICOS to Array pursuant to this
Section 5.1 shall be made without withholding for taxes or any other
charge.
5.2 Milestones. ICOS shall pay to Array the following amounts within [***]
days (or as otherwise specified below) following the first achievement by ICOS,
its Affiliates, Sublicensees or other designees, as the case may be, of each of
the following milestones with respect to each Active Target:
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MILESTONES PAYMENT AMOUNT
---------- --------------
1. [***] [***]
2. [***] [***]
3. [***] [***]
4. [***] [***]
(a) Certain Terms.
(i) The milestone payments set forth above shall be payable [***]
for each Active Target.
(ii) In the event that one or more milestone payments described
above becomes due and one or more of the earlier-stage milestone
payments has not been paid to Array for the same Active Target, then
all earlier-stage milestone payments that have not been paid shall be
paid together with such due milestone payment.
(iii) For purposes of this Section 5.2, a clinical trial shall be
deemed initiated upon the first dosing of the first patient in such
trial. Compassionate or emergency use, as defined in 21 CFR xx.xx.
312.34 - 312.36 or the substantial equivalent in any country, of any
Active Target shall not constitute a clinical trial.
5.3 One time per Active Target Success Bonus. ICOS will pay Array a success
bonus of [***] for each Active Target in the event that the following criteria
are met for any Active Target.
(a) within [***] from the Effective Date, Array delivers the Active
Compound which will become a Drug Development Candidate for a particular
Active Target, for which Active Compound ICOS completes the "in life" phase
of at least [***] duration, of GLP-toxicology studies sufficient to produce
a quality assured draft and final reports to enable Phase I FDA (or
equivalent) clinical trials; and
(b) Array delivered the Active Compound that became such Drug
Development Candidate in sufficient quantity to enable ICOS to:
(i) qualify such Active Compound as a Drug Development Candidate;
and
(ii) perform a minimum of [***] non-GLP exploratory toxicology
studies.
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Such success bonus payment shall be made [***] following the completion of
all the above criteria.
5.4 Royalties.
(a) Products in the Field. ICOS shall pay Array an annual royalty on
Net Sales of Products sold by or under authority of ICOS, its Affiliates or
Sublicensees for uses in the Field and which but for the Licenses granted
herein by Array to ICOS would infringe a Valid Claim within Patents within
the Collaboration Technology. The annual royalty rate for such Products in
a given year shall be determined by the total annual Net Sales of all such
Products for the particular calendar year in the particular territory
listed below, on a calendar year basis, according to the following
schedule:
ROYALTY ON NET SALES ROYALTY ON NET SALES IN ALL
ROYALTY ON NET ON A COUNTRY BY COUNTRIES OUTSIDE
ANNUAL NET SALES SALES IN U.S. COUNTRY BASIS IN EUROPE U.S. AND EUROPE
---------------- ------------------------ ---------------------------- --------------------------
[***] [***] [***] [***]
[***] [***] [***] [***]
[***] [***] [***] [***]
(b) Products outside the Field. ICOS shall pay Array an annual royalty
on Net Sales of Products sold by or under authority of ICOS, its Affiliates
or Sublicensees for uses outside the Field. The annual royalty rate for
such Products shall be [***] of the total annual Net Sales of all such
Products for each calendar year and which but for the Licenses granted
herein by Array to ICOS would infringe a a Valid Claim within Patents
within the Collaboration Technology.
(c) Royalty Term. ICOS's obligation to pay annual royalties to Array
under this Section 5.4 shall continue for each Product, on a
country-by-country basis, until the expiration of the last to expire issued
Patent (i.e., as defined in Section 1.20(b)) or issued Valid Claim (i.e.,
as defined in Section 1.30(ii)) within the Collaboration Technology which
but for the licenses granted herein by Array to ICOS, would infringe a
Valid Claim within Patents within the Collaboration Technology.
(d) ICOS may reduce the percentage amount of earned royalties payable
for a Product under this Agreement by [***] the amount in excess of [***]
that ICOS elects or is required,
-14. [***] CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED OF REDACTED PORTIONS
in its reasonable business judgement, to pay to Third Parties who are not
Affiliates or Sublicensees of ICOS in order to sell such Product and to
avoid or settle a patent infringement action; provided, however, that the
royalties payable by ICOS to Array for the sale of Product shall not be
reduced to less than [***] the amount that ICOS would otherwise be
obligated to pay to Array; and further provided that if ICOS sells [***]
Products with the same active ingredient in the same country, then the
maximum percentage amount royalty reduction for such same country allowable
under this Section 5.4(d) for [***] Product shall not exceed [***] under
this Section for [***] Product, if such Product were sold alone.
5.5 Third Party Royalties. ICOS shall be responsible for all payments due
to Third Parties for the manufacture, use, or sale of Products by ICOS, its
Affiliates or Sublicensees.
ARTICLE 6
PAYMENTS; BOOKS AND RECORDS
6.1 Payments.
(a) Royalty Reports. ICOS shall deliver to Array within sixty (60)
days after the last day of each calendar quarter in which Products are
sold, a report setting forth in reasonable detail the calculation of the
royalties payable to Array for such calendar quarter identifying, by
country and Product, the Products sold by ICOS and its Affiliates and
Sublicensees, and the calculation of Net Sales and royalties due to Array.
(b) Timing of Royalty Payments. All royalties due to Array shall be
paid within [***] days after the last day of the calendar quarter in which
they accrue.
(c) Payment Method. Except as expressly stated elsewhere in this
Agreement, all payments due under this Agreement shall be paid within [***]
days from the date such payments become due and owing and made from a bank
located in the United States by bank wire transfer in immediately available
funds to a bank account designated by Array. All payments hereunder shall
be made in U.S. dollars. In the event that the due date of any payment
subject to Article 5 hereof is a Saturday, Sunday or national holiday, such
payment may be paid on the following business day. Any payments that are
not paid on the date such payments are due under this Agreement shall bear
interest to the extent permitted by applicable law at the prime rate as
reported by the Chase Manhattan Bank, New York, New York, on the date such
payment is due, plus an additional one percent (1%), calculated on the
number of days such payment is delinquent.
(d) Currency Conversion. If any currency conversion shall be required
in connection with the calculation of amounts payable hereunder, such
conversion shall be made using the buying exchange rate for conversion of
the foreign currency into U.S. dollars, quoted for current transactions
reported in The Wall Street Journal for the last business day of the
calendar quarter to
-15. [***] CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED OF REDACTED PORTIONS
which such payment pertains, except in the case of withholding taxes under
6.3, the applicable calendar quarter shall be that calendar quarter for
payments upon which such taxes were levied.
6.2 Records; Inspection. ICOS and its Affiliates and Sublicensees shall
keep complete, true and accurate books of account and records for the purpose of
determining the milestone amounts payable under this Agreement. Such books and
records shall be kept at the principal place of business of such party, as the
case may be, for at least three (3) years following the end of the calendar
quarter to which they pertain. Such records will be open for inspection during
such three (3) year period by an independent public accounting firm to whom ICOS
or its Affiliates and Sublicensees have no reasonable objection, solely for the
purpose of verifying milestone statements hereunder. Such inspections may be
made no more than once each calendar year, at reasonable times and on reasonable
notice. The independent auditor shall be obligated to execute a reasonable
confidentiality agreement prior to commencing any such inspection. Inspections
conducted under this Section 6.2 shall be at the expense of Array, unless a
variation or error producing an increase in payment to Array of greater than
five percent (5%) per annum for any period covered by the inspection is
established in the course of any such inspection, whereupon all reasonable costs
relating to the inspection for such period and any unpaid amounts that are
discovered will be paid promptly by ICOS to Array together with interest thereon
from the date such payments were due at the lesser of the prime rate as reported
by the Chase Manhattan Bank, New York, New York, plus an additional one percent
(1%) or the maximum rate permitted by law if less. The interest available to
Array pursuant to this Section 6.2 shall in no way limit any other remedies
available to Array.
6.3 Withholding Taxes. All FTE payments, milestone payments and other fees
required to be paid to Array pursuant to this Agreement shall be paid without
deduction for withholding for or on account of any taxes (other than taxes
imposed on or measured by net income) or similar governmental charge imposed by
a jurisdiction other than the United States ("Withholding Taxes"), which ICOS
agrees to pay separately; provided, however, to the extent Array and/or its
Affiliates or their successors utilizes the Withholding Taxes paid by ICOS as a
credit to reduce Array's and/or its Affiliates regular U.S. tax liability, then
Array shall repay to ICOS the amount of such reduction. ICOS shall provide Array
a certificate evidencing payment of any Withholding Taxes hereunder.
ARTICLE 7
DUE DILIGENCE
To the extent it is reasonably commercially prudent to do so, for each Drug
Development Candidate and Product to which ICOS retains rights under this
Agreement, ICOS shall use commercially reasonable efforts, consistent with ICOS'
reasonable business judgment, to develop and commercialize such Drug Development
Candidates and Products, and to obtain reasonable commerical return for each
Drug Development Candidate, consistent with professional standards for the
development, commercialization and marketing of pharmaceutical products of
similar commercial value potential.
-16. [***] CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED OF REDACTED PORTIONS
ARTICLE 8
INTELLECTUAL PROPERTY
8.1 Ownership of Inventions. Inventorship shall be decided according to
U.S. Patent Law. Notwithstanding the foregoing: (a) title to all Collaboration
Technology made solely by ICOS personnel shall be owned by ICOS; (b) title to
all Collaboration Technology made solely by Array personnel shall be owned by
Array, and (c) title to all Collaboration Technology made jointly by personnel
of ICOS and Array shall be jointly owned by ICOS and Array. Except as expressly
provided in this Agreement, it is understood that neither Party shall have any
obligation to account to the other for profits, or to obtain any approval of the
other Party to license or exploit a joint invention, by reason of joint
ownership of any invention or other intellectual property.
8.2 Prosecution. ICOS shall have the first right to pursue the preparation,
filing, prosecution and maintenance of any patent applications, patents or other
intellectual property rights within the Collaboration Technology. ICOS shall
keep Array fully informed as to the status of patent matters concerning
Collaboration Technology described in 8.1(b) and (c) herein and described in
this Section 8.2, including without limitation, by providing Array copies of any
substantive documents that ICOS receives from any patent office promptly after
receipt, including notice of all interferences, reissues, re-examinations,
oppositions or requests for patent term extensions, and by providing Array the
opportunity, as far in advance of filing dates as possible, to fully review and
comment on any documents which will be filed in any patent office, and
incorporating all reasonable comments; provided, however, that ICOS shall have
the right to make all final decisions with respect to the prosecution of subject
matter within the Field. Array shall reasonably cooperate with and assist ICOS
in connection with such activities, at ICOS's request, including without
limitation by making scientists and scientific records reasonably available to
ICOS. In the event ICOS fails or declines to take such actions with respect to
any inventions concerning Collaboration Technology described in 8.1(b) and (c)
herein and in accordance with this Section 8.2, then Array shall have the right
to file, prosecute and maintain such patent applications or patents at its sole
expense(subject to the licenses granted to ICOS under this Agreement). ICOS
shall notify Array at least sixty (60) days, or as soon as practicable to
prevent impairment of any rights Array has or may acquire by ICOS acting or
failing to act, prior to the date the next necessary action or filing is due to
be taken which could impair any rights Array has or may acquire by such action,
inaction or filing with respect to any invention concerning Collaboration
Technology described in Section 8.1(b) or (c) above, or any patent or patent
application claiming such invention.
ARTICLE 9
CONFIDENTIAL INFORMATION
9.1 Nondisclosure. Except as expressly provided herein, the receiving party
(hereinafter, the "Receiving Party") shall not disclose to any third party or
use for any purpose any Confidential Information furnished to it by the other
party (hereinafter the "Disclosing Party") pursuant to this
-17. [***] CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED OF REDACTED PORTIONS
Agreement. With respect to information generated in the course of the Research
Collaboration, such information shall not be deemed confidential, or
Confidential Information hereunder, as to ICOS.
9.2 Permitted Use and Disclosures. The Receiving Party may use and disclose
the Confidential Information of the Disclosing Party to the extent necessary to
exercise its rights or perform its obligations under this Agreement, in filing
or prosecuting applications and patents, prosecuting or defending litigation,
complying with applicable governmental regulations or court order or otherwise
submitting information to tax or other governmental authorities, conducting
trials, or making a permitted sublicense or otherwise exercising license rights
expressly granted to the other party to it pursuant to the terms of this
Agreement, provided that if the Receiving Party is required to make any such
disclosures of the Disclosing Party's Confidential Information, other than
pursuant to a confidentiality agreement it shall, where allowed by law, give
reasonable advance notice the Disclosing Party of such disclosure and, save to
the extent inappropriate in the case of patent applications, shall use
reasonable efforts to secure confidential treatment of such Confidential
Information in consultation with the Disclosing Party prior to its disclosure
(whether through protective orders or otherwise) and disclosure only that
portion of the Confidential Information necessary to comply with such
requirements.
9.3 Nondisclosure of Terms. Each of the Parties hereto agrees not to
disclose the terms of this Agreement to any Third Party without the prior
written consent of the other Party hereto, which consent shall not be
unreasonably withheld, except to such Party's attorneys, advisors, investors and
others on a need to know basis under circumstances that reasonably ensure the
confidentiality thereof, or to the extent required by law. Notwithstanding the
foregoing, the Parties shall agree upon a joint press release and timing to
announce the execution of this Agreement thereafter, Array and ICOS may each
disclose to Third Parties the information contained in such press release
without the need for further approval by the other. In addition, ICOS and Array
may make public statements regarding the progress of the Research Collaboration
and the achievement of milestones and fees with respect thereto, following
consultation and mutual agreement, the consent of neither Party to be
unreasonably withheld.
9.4 Publication. Any manuscript by Array or ICOS describing the scientific
results of the Research Collaboration to be published during the Research Term
or within [***] after the end of the Research Term shall be subject to the prior
review of the Parties at least [***] days prior to submission. Further, to avoid
loss of patent rights arising under 8.1(b) and (c) herein as a result of
premature public disclosure of patentable information, the Party proposing to
disclose or publish technology arising under 8.1(b) and (c) herein (the
"Publishing Party") shall provide the other Party (the "Reviewing Party") with a
copy of the proposed disclosure at least [***] days prior to the date of the
proposed disclosure. The Reviewing Party shall notify the Publishing Party in
writing within [***] days after receipt of any proposed disclosure whether the
Reviewing Party desires to file a patent application on any invention disclosed
in such scientific results. In the event that the Reviewing Party desires to
file such a patent application, the Publishing Party shall withhold publication
or disclosure of such scientific results until the earlier of (i) a patent
application is filed
-18. [***] CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED OF REDACTED PORTIONS
thereon, or (ii) the Parties determine after consultation that no patentable
invention exists, or (iii) [***] days after receipt by the Publishing Party of
the Reviewing Party's written notice of the Reviewing Party's desire to file
such patent application, or such other period as is reasonable for seeking
patent protection. Further, if such scientific results contain the information
of the Reviewing Party that is subject to use and nondisclosure restrictions
under this Article 9, the Publishing Party agrees to remove such information
from the proposed publication or disclosure. Following the filing of any patent
application within the Collaboration Technology, in the eighteen (18) month
period prior to the publication of such a patent application, neither Party
shall make any written public disclosure regarding any invention claimed in such
patent application without the prior consent of the other Party.
ARTICLE 10
REPRESENTATIONS AND WARRANTIES
10.1 ICOS. ICOS represents and warrants on its own behalf and on behalf of
its Affiliates that: (i) it has the full right and authority to enter into this
Agreement and to grant the rights and licenses herein, and (ii) to its knowledge
and belief, no action, suit or claim has been initiated or threatened against
ICOS with respect to its right to enter into and perform its obligations under
this Agreement.
10.2 Array. Array represents and warrants that: (i) it has the full right
and authority to enter into this Agreement and to grant the rights and licenses
herein, and (ii) to its knowledge and belief, no action, suit or claim has been
initiated or threatened against Array with respect to its right to enter into
and perform its obligations under this Agreement.
10.3 Disclaimer. ICOS and Array specifically disclaim any representation,
warranty or guarantee that the Research Program will be successful, in whole or
in part. The failure of the parties to successfully develop a Drug Development
Candidate will not constitute a breach of any representation or warranty or
other obligation under this Agreement. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH
IN THIS AGREEMENT, ARRAY AND ICOS EXPRESSLY DISCLAIM ANY WARRANTIES OR
CONDITIONS, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE
RESEARCH PROGRAM, THE PROCESSES TO BE DEVELOPED OR THE COMPOUNDS TO BE
SYNTHESIZED HEREUNDER, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, VALIDITY OF ANY LICENSED
TECHNOLOGY, PATENTED OR UNPATENTED, OR NONINFRINGEMENT OF THE INTELLECTUAL
PROPERTY RIGHTS OF THIRD PARTIES.
ARTICLE 11
INDEMNIFICATION
-19. [***] CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED OF REDACTED PORTIONS
11.1 Product Liability. ICOS hereby agrees to save, defend and hold Array
and its officers, directors, employees, consultants, and agents harmless from
and against any and all suits, claims, actions, demands, liabilities, expenses
and losses, including reasonable legal expenses and attorneys' fees ("Losses")
resulting directly or indirectly from any claim alleging physical injury or
death or otherwise arising out of the administration, utilization and/or
ingestion of Products based on Compounds synthesized by Array hereunder that are
manufactured, used or sold by or under the authority of ICOS, its Affiliates or
Sublicensees except to the extent such Losses result from the negligence, breach
of this Agreement or willful misconduct of Array.
11.2 Procedures. If Array (the "Indemnified Party") seeks indemnification
under this Article 11, it shall inform ICOS (the "Indemnifying Party") of a
claim as soon as reasonably practicable after it receives notice of the claim,
shall permit the Indemnifying Party to assume direction and control of the
defense of the claim (including the right to settle any claim brought against
the Indemnified Party upon prior written consent, which shall not be
unreasonably withheld), and shall give reasonable cooperation (at the expense of
the Indemnifying Party) in the defense of such claim.
ARTICLE 12
TERM AND TERMINATION
12.1 Term. Unless earlier terminated pursuant to the other provisions of
this Article 12, this Agreement shall continue in full force and effect on a
country-by-country and Product-by- Product basis until the end of the royalty
term set forth in Section 5.4(c).
12.2 Permissive Termination. ICOS shall have the right to terminate this
Agreement upon [***] written notice to Array; provided that such notice shall
not be [***].
12.3 Termination for Breach. Either Party to this Agreement may terminate
this Agreement in the event the other Party has materially breached this
Agreement and does not cure such breach within [***] days after written notice
thereof (reasonably identifying the breach) was provided to the breaching Party
by the nonbreaching Party. Any termination shall become effective at the end of
such [***] day period unless the breaching Party has cured or acted materially
to cure any such breach or default prior to the expiration of the [***] day
period.
-20. [***] CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED OF REDACTED PORTIONS
12.4 Effect of Expiration or Termination.
(a) Accrued Rights and Obligations. Termination of this Agreement for
any reason shall not release any Party hereto from any liability which, at
the time of such termination, has already accrued to the other Party or
which is attributable to a period prior to such termination, nor preclude
either Party from pursuing any rights and remedies it may have hereunder or
at law or in equity which accrued or are based upon any event occurring
prior to such termination.
(b) Survival. Articles 1 (to the extent referenced in any of the
following Articles or Sections), 5, 7, 9, 11 and 13 of this Agreement, as
well as Section 2.9 shall survive the expiration or termination of this
Agreement for any reason.
ARTICLE 13
ASSIGNABILITY
13.1 Generally. This Agreement may not be assigned by either Party without
the prior written consent of the other Party, and which shall not to be
unreasonably withheld; provided, however, that either Party may assign this
Agreement, in whole or in part, to an Affiliate or to a successor of a Party in
connection with the merger, consolidation or sale of all or substantially all of
such Party's assets or that portion of its business pertaining to the subject
matter of this Agreement (and upon doing so will promptly notify the other Party
in writing) (each such transaction being referred to as an "Acquisition");
provided that the assigning Party remains fully liable as obligated hereunder.
Notwithstanding the foregoing, ICOS shall have the right to assign its
rights, duties and obligations under this Agreement to a company or organization
in which it owns at least a fifty percent (50%) of the outstanding shares or
other voting rights of such company or organization having the power to vote on
or direct the affairs of the company or organization. In the event of such an
assignment, ICOS shall not be released, remised or discharged from any
obligations or covenants without the prior written consent of Array.
Notwithstanding the foregoing, in the event Array so consents to ICOS's release,
the company or organization, as the case may be, to which ICOS assigns this
Agreement shall execute a written agreement providing that such company or
orgainzation shall assume all such obligations or covenants from ICOS.
13.2 Technology of Acquirer. In the event of an Acquisition, it is
understood and agreed that no intellectual property rights or technology of the
acquirer shall be included within the subject matter licensed hereunder, to the
extent that such intellectual property or technology was owned or controlled by
the acquirer as of the date of the Acquisition, or was created or obtained after
the date of the Acquisition other than by former employees of Array in the
course of performing the Research Program.
-21. [***] CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED OF REDACTED PORTIONS
ARTICLE 14
DISPUTE RESOLUTION PROCEDURES
14.1 Senior Executives Discussions. If a dispute arises between Array and
ICOS or with respect to matters other than the management of the Research
Program, either during or after the Research Term, such dispute will be referred
to the appropriate senior management concerning the subject matter of the
dispute. If such senior management are unable to resolve such dispute, such
dispute will be referred to the Executive Vice President of Operations of ICOS
and the Chief Operating Officer of Array.
14.2 Injunctive Relief. Nothing contained in this Section 14 or any other
provisions of this Agreement shall be construed to limit or preclude a Party
from bringing any action in any court of competent jurisdiction seeking
injunctive or other relief or seeking to compel the other Party to comply or
specifically perform with its obligations hereunder.
ARTICLE 15
MISCELLANEOUS
15.1 Governing Laws. This Agreement and any dispute arising from the
performance or breach hereof shall be governed by and construed and enforced in
accordance with, the laws of the state of Washington, without reference to
conflicts of laws principles.
15.2 Waiver. Waiver by either Party or the failure by either 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 of any provision
hereof.
15.3 Independent Contractors. The relationship of the parties hereto is
that of independent contractors. The parties hereto are not deemed to be agents,
partners or joint venturers of the others for any purpose as a result of this
Agreement or the transactions contemplated thereby.
15.4 Compliance with Laws. In exercising their rights under this Agreement,
the parties shall fully comply in all material respects with the requirements of
any and all applicable laws, regulations, rules and orders of any governmental
body having jurisdiction over the exercise of rights under this Agreement
including, without limitation, those applicable to the discovery, development,
manufacture, distribution, import and export and sale of pharmaceutical products
pursuant to this Agreement.
15.5 Notices. Any notice required or permitted to be given hereunder shall
be deemed sufficient if sent by facsimile letter or overnight courier, or
delivered by hand to ICOS or Array at the respective addresses and facsimile
numbers as set forth below or at such other address and facsimile number as
either Party hereto may designate. If sent by facsimile letter, notice shall be
deemed given when the transmission is completed if the sender has a confirmed
transmission report. If a confirmed
-22. [***] CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED OF REDACTED PORTIONS
transmission report does not exist, then the notice will be deemed given when
the notice is actually received by the person to whom it is sent. If delivered
by overnight courier, notice shall be deemed given when it has been signed for.
If delivered by hand, notice shall be deemed given when received.
if to Array, to: Array BioPharma Corporation
0000 00xx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Chief Operating Officer
Fax number: (000) 000-0000
with a copy to: Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
Fax number: (000) 000-0000
if to ICOS, to: ICOS Corporation
00000 00xx Xxxxxx X.X.
Xxxxxxx, XX 00000
Attention: Legal Department
Fax number: 425/000-0000
15.6 Severability. In the event that any provision of this Agreement
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect to
the fullest extent permitted by law without said provision, and the parties
shall amend the Agreement to the extent feasible to lawfully include the
substance of the excluded term to as fully as possible realize the intent of the
parties and their commercial bargain.
15.7 Force Majeure. Neither Party shall lose any rights hereunder or be
liable to the other Party for damages or losses (except for payment obligations)
on account of failure of performance by the defaulting Party if the failure is
occasioned by war, strike, fire, Act of God, earthquake, flood, lockout,
embargo, governmental acts or orders or restrictions, failure of suppliers, or
any other reason where failure to perform is beyond the reasonable control, and
not caused by the negligence, intentional conduct or misconduct, of the
nonperforming Party and the non-performing Party has exerted all reasonable
efforts to avoid or remedy such force majeure; provided, however, that in no
event shall a Party be required to settle any labor dispute or disturbance.
15.8 Complete Agreement. This Agreement represents the entire agreement of
the parties with respect to the subject matter hereof and supersedes all prior
understandings and agreements with respect thereto. No change or modification of
the provisions of this Agreement shall be effective unless it is in writing and
signed by a duly authorized officer of Array and ICOS.
-23. [***] CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED OF REDACTED PORTIONS
14.9 Headings. The headings and numbering herein are not a part of this
Agreement, but are included merely for convenience of reference only and shall
not affect its meaning or interpretation.
14.10 Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed to be an original and all of which together shall be
deemed to be one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their authorized representatives as of the Effective Date.
ARRAY BIOPHARMA, INC. ICOS CORPORATION
By: By:
-------------------------------------------------- --------------------------------------------------
Name: Name: W. Xxxxxxx Xxxxxxxx, Ph.D.
------------------------------------------------ ------------------------------------------------
Title: Title: Vice President and Scientific Director
----------------------------------------------- ------------------------------------------------
-24. [***] CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED OF REDACTED PORTIONS
EXHIBIT A
DRUG DEVELOPMENT TARGETS
[***]
-25. [***] CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED OF REDACTED PORTIONS
EXHIBIT B
EUROPE
Albania Lithuania
Andorra Luxembourg
Armenia Macedonia
Austria Malta
Azerbaijan Moldova
Belarus Monaco
Belgium Montenegro
Bosnia and Herzegovina Netherlands
Bulgaria Norway
Croatia Poland
Cypress Portugal
Czech Republic Xxxxxxx
Xxxxxxx Xxxxxx
Xxxxxxx Xxx Xxxxxx
Xxxxxxx Xxxxxx
France Slovakia
Georgia Slovenia
Germany Spain
Greece Sweden
Hungary Switzerland
Iceland Turkey
Ireland Ukraine
Italy United Kingdom
Xxxxxx Xxxxxxx Xxxx
Xxxxxxxxxxxxx
-00. [***] CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED OF REDACTED PORTIONS
EXHIBIT C
DRUG DEVELOPMENT CANDIDATE CRITERIA
[***]
-27. [***] CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED OF REDACTED PORTIONS
