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 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
Exhibit 10.15
UNIVERSITY OF ARIZONA AND TELIK
RESEARCH AND LICENSE AGREEMENT
This Agreement, is made as of this 8th day of January, 2001 (the "Effective
Date") between the Arizona Board of Regents (ABOR) for The University of Arizona
(UNIVERSITY) and Telik, Inc. (TELIK) a Delaware corporation having a principal
place of business at 000 Xxxxxxx Xxxx. Xxxxx Xxx Xxxxxxxxx, XX 00000. Each of
ABOR and/or UNIVERSITY and TELIK is referred to herein as a "Party" and,
collectively, as "Parties."
WHEREAS, TELIK desires UNIVERSITY to perform certain research work under
which TELIK and UNIVERSITY will seek active compounds in [*] agreed-upon cancer
targets, and will evaluate and optimize certain of such compounds, choose
clinical candidates and conduct preclinical and clinical development of such
candidates, as more specifically described in the Research Plan, attached as
Exhibit A, and is willing to advance funds to sponsor such research; and
WHEREAS, TELIK desires to obtain certain rights to intellectual property
that may be developed during the course of the Research Project (defined below);
and
WHEREAS, UNIVERSITY desires to obtain certain rights to intellectual
property that may be developed during the course of the Research Project; and
WHEREAS, UNIVERSITY is willing to undertake such Research Project and the
Parties are willing to grant to each other the rights set forth herein.
NOW THEREFORE, in consideration of the mutual covenants and promises
contained herein, TELIK and UNIVERSITY agree as follows:
ARTICLE I. DEFINITIONS
The following terms shall have the following meanings:
1. Active Compound. A Library Compound which, as measured in an assay
during the Screening Period or the Evaluation Period exhibits the activity
specified in Exhibit A.
2. Affiliate. Any company or entity controlled by, controlling, or under
common control with a Party hereto and shall include without limitation any
company more than fifty percent (50%) of whose voting stock or participating
profit interest is owned or controlled, directly or indirectly, by a Party, and
any company which owns or controls, directly or indirectly, more than fifty
percent (50%) of the voting stock of a Party.
3. Derivative. A compound that is made from, derived from or based upon
any Active Compound by one or more modifications that result in (a) changes in
the groups attached to the same positions on the original scaffold of the Active
Compound or (b) other changes in such Active Compound that yield a compound that
has [*] chemical, biological or therapeutic
1.
activity with respect to a Selected Target that does the Active Compound from
which it is derived.
4. Evaluation Period. The [*] following the Screening Period during which
the Parties will evaluate the potential of Active Compounds.
5. Field of Research. The discovery of therapeutic agents to treat cancer
diseases in humans.
6. Invention. Any invention or discovery which is or may be patentable or
otherwise protected under title 36, United States Code, or any novel variety of
plant which is or may be protectable under the Plant Variety Protection Act (7
U.S.C. 2321 et seq.).
7. Joint Development Compound. An Active Compound with respect to a
particular Joint Development Target.
8. Joint Development Target. A Selected Target that [*] select in [*] of
the Research Project for further development on a [*].
9. Joint Intellectual Property. All know-how and Patents pertaining to or
claiming Inventions made in the course of the collaboration that are not TELIK
Intellectual Property or UNIVERSITY Intellectual Property, and which include but
are not limited to Inventions relating to (i) the composition of matter or
method of making an Active Compound or a Derivative thereof, or (ii) the use of
a compound containing an Active Compound or a Derivative thereof.
10. Joint Projects. A Joint Development Target and all Joint Development
Compounds which the [*] select in [*] of the Research Project pursuant to
Exhibit A for further development [*].
11. Library Compound. A chemical substance contained in the TELIK Library
and delivered by TELIK to UNIVERSITY hereunder.
12. Library Compound Intellectual Property. (i) all Patents issued or
pending and controlled by TELIK as of the Effective Date which claim Inventions
or discoveries relating to the composition of matter of, or method of making, a
Library Compound, or the use of a Library Compound against a Selected Target;
and (ii) any Inventions, discoveries know-how, trade secrets, and other
information relating to a Library Compound, which has been made or developed as
of the Effective Date and which are controlled by TELIK, except as set forth in
(i) above.
13. Net Sales. The gross amount invoiced by a Party or one of its
Affiliates or sublicensees to a third party purchaser based on the sale or other
transfer of a UNIVERSITY Product or a TELIK Product to such purchaser, less the
following deductions, calculated in accordance with United States generally
accepted accounting principles consistently applied, to the extent actually
incurred or allowed with respect to the sale or other transfer of such
UNIVERSITY Product or TELIK Product: (i) trade, quantity and cash discounts or
rebates in amounts not exceeding industry custom; (ii) credits, rebates, charge-
back rebates,
2.
[*] = 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 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
reimbursements or similar payments granted or given to wholesalers and other
distributors, buying groups, healthcare insurance carriers, governmental
agencies and other institutions, provided that such provisions will not grant a
preference or otherwise favor other products of the selling Party if based on
the fact that a royalty may be payable hereunder; (iii) credits or allowances
for rejection or return of such UNIVERSITY Product or TELIK Product previously
sold; (iv) any tax, tariff, duty or other governmental charge (other than an
income tax) levied on the sale, transportation or delivery of a UNIVERSITY
Product or TELIK Product and borne by the seller thereof; (v) payments or
rebates paid in connection with state or federal Medicare, Medicaid or similar
programs; and (vi) any charge for freight or insurance.
14. Patent. All non-U.S. and U.S. patent applications (including, without
limitation, all provisional, divisional, substitution, continuation and claims
in continuation in-part applications supported by parent application and all
non-U.S. counterparts thereof) and all non-U.S. and U.S. patents (including,
without limitation, extensions, reissues, reexaminations, renewals, inventors
certificates and foreign counterparts thereof).
15. Principal Investigator. The individual listed on Exhibit A, employed
by UNIVERSITY, with primary responsibility for conducting and supervising the
Research Plan.
16. Research Plan. The plan for performing the Research Project, as set
forth in Exhibit A.
17. Research Project. The research project to be carried out by TELIK and
UNIVERSITY in which UNIVERSITY and TELIK will seek active compounds in [*]
cancer targets, to be agreed-upon by the Parties, and will evaluate and optimize
certain of such compounds meeting the criteria set forth in the Research Plan,
choose clinical candidates and conduct preclinical and clinical development of
such candidates.
18. Screening Period. Commences on the Effective Date and expires [*]
later.
19. Selected Target. [*] biological or molecular targets identified by
UNIVERSITY and accepted by TELIK, against which UNIVERSITY wishes to screen
compounds from the TELIK Library pursuant to this Agreement.
20. TELIK Background Technology. The TRAP Technology, the TELIK Library
and such other technology and Inventions as are owned by or licensed to TELIK as
of the Effective Date.
21. TELIK Development Compound. an Active Compound with respect to a
particular TELIK Development Target.
22. TELIK Development Target. a Selected Target that is selected by TELIK
in [*] of the Research Project for further development by TELIK.
23. TELIK Intellectual Property. All know how pertaining to and Patents
claiming Inventions made solely by TELIK in the course of the Research Project
including but not limited to Inventions relating to (i) the composition of
matter or method of making an Active Compound
3.
[*] = 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 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
or a derivative thereof or (ii) the use of a compound containing an Active
Compound or a derivative thereof against a Target.
24. TELIK Library The proprietary diverse small-molecule compound library
of TELIK classified according to distinct patterns of protein binding.
25. TELIK Project. A TELIK Development Target and all TELIK Development
Compounds which TELIK selects in [*] of the Research Project pursuant to Exhibit
A for further development by TELIK.
26. TELIK Products. Any product incorporating a TELIK Development
Compound or a Derivative thereof, in any preparation or formulation.
27. TRAP Technology. TELIK's proprietary chemogenomics technology, which
involves the characterization of the binding similarities and differences of
small molecules by measuring the molecules' binding characteristics against a
panel of proteins selected to represent the diversity of binding preferences
contained in a large set of proteins.
28. UNIVERSITY. UNIVERSITY, Principal Investigator and those UNIVERSITY
employees participating in the Research Plan under the supervision of Principal
Investigator, including, but not limited to, students, employees,
representatives, agents.
29. UNIVERSITY Development Compound. An Active Compound with respect to a
particular UNIVERSITY Development Target.
30. UNIVERSITY Development Target. A Selected Target that is selected by
UNIVERSITY in [*] of the Research Project for further development by UNIVERSITY.
31. UNIVERSITY Intellectual Property. All know-how pertaining to and
Patents claiming Inventions made solely by UNIVERSITY that relate to Targets but
do not relate to (i) the composition of matter or method of making an Active
Compound or a derivative thereof or (ii) the use of a compound containing an
Active Compound or a derivative thereof against a Target, or otherwise
incorporate or relate to the TELIK Background Technology.
32. UNIVERSITY Project. A UNIVERSITY Development Target and all
UNIVERSITY Development Compounds which UNIVERSITY selects in [*] of the Research
Project pursuant to Exhibit A for further development by UNIVERSITY.
33. UNIVERSITY Product. Any product incorporating a UNIVERSITY
Development Compound or a Derivative thereof, in any preparation or formulation.
34. Valid Claim. A claim from any issued patent which has not been
revoked or held invalid or unenforceable by a decision of a court or other
government agency of competent jurisdiction, which decision is unappealable or
unappealed within the time allowed for appeal.
4.
[*] = 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 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
ARTICLE II. SCOPE OF WORK
1. Research Project. The Research Project, which is contemplated by this
Agreement, is described generally in the Research Plan, attached as Exhibit A.
This Research Plan sets forth certain responsibilities of each Party.
UNIVERSITY agrees to conduct its portion of the Research Project in accordance
with the Research Plan, and under the supervision and direction of Principal
Investigator. Principal Investigator may select other UNIVERSITY employees to
participate in the research (including, but not limited to UNIVERSITY
technicians, undergraduate and graduate students, post-doctoral fellows, or
faculty members), provided that such individuals are made aware of and have
agreed to be bound by the terms of this Agreement. Notwithstanding anything in
this Agreement to the contrary, UNIVERSITY and TELIK may amend the Research Plan
at any time by mutual written agreement.
2. Funding and Schedule of Payments. Exhibit B set forth the schedule of
compensation and payments to be made in connection with the Research Project and
the licenses granted under this Agreement. Exhibit B may not be modified unless
in writing and executed by the Parties.
3. Exclusivity of Research. TELIK acknowledges that UNIVERSITY may engage
in other research within the Field of Research with respect to the Selected
Targets, funded by public or private sources and conducted separately, and TELIK
shall have no rights hereunder to such other research or resulting Intellectual
Property.
4. Screening Exclusivity. During the Screening Period and the Evaluation
Period, TELIK shall not agree to deliver and shall not knowingly deliver to any
third parties any Library Compounds for the purpose of screening against the
Selected Targets.
5. Target Exclusivity. For so long as UNIVERSITY, its Affiliates or
sublicensees maintain a commercial interest in at least one UNIVERSITY
Development Compound or Derivative thereof directed against a particular
UNIVERSITY Development Target, TELIK shall not deliver, nor permit to be used,
any Library Compounds provided to UNIVERSITY hereunder to or by third parties
for screening against such UNIVERSITY Development Target, and shall not develop,
commercialize or grant licenses to any UNIVERSITY Development Compound directed
against that UNIVERSITY Development Target, or any Derivative thereof disclosed
by UNIVERSITY to TELIK whose structure TELIK has disclosed to UNIVERSITY.
6. Equipment and Supplies. Equipment and supplies purchased specifically
to conduct the Research Plan shall belong to UNIVERSITY at the termination of
this Agreement.
ARTICLE III. TERM AND TERMINATION
1. Term. This Agreement shall become effective upon the Effective Date.
The Research Project shall commence on the Effective Date, and [*] of the
Research Project shall expire on December 31, 2002 (the "Research Term"). Unless
sooner terminated as provided herein, this Agreement shall expire on a country
by country, patent by patent, product by product basis upon the expiration of
the last to expire Valid Claim of a Patent in a country claiming a particular
UNIVERSITY Product or TELIK Product, as applicable.
5.
[*] = 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 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
2. Termination by UNIVERSITY. UNIVERSITY may terminate this Agreement at
any time, for any reason, upon [*] written notice to TELIK. TELIK shall not be
responsible to reimburse UNIVERSITY for [*] by UNIVERSITY, or for [*] hereunder,
except to the extent such costs result from [*], unless termination is for
default or breach of this Agreement by TELIK.
3. Termination by TELIK. TELIK may terminate this Agreement at any time
upon [*] written notice to UNIVERSITY, if circumstances beyond its control
preclude continuation of the Research Project. In this event, UNIVERSITY will
proceed in an orderly and timely fashion to close down the Research Project,
including termination of any obligations in force (except those that are non-
cancelable), and shall notify TELIK of those obligations remaining as of the
date of termination. TELIK shall reimburse UNIVERSITY for [*], including those
which have been incurred [*] but which have not yet been reimbursed, as well as
[*] which cannot be canceled.
4. Default. In the event that either Party commits any breach of or
default in any of the terms or conditions of this Agreement, and fails to remedy
such default or breach within [*] after receipt of written notice thereof from
the other Party hereto, the Party giving notice may, at its option and in
addition to any other remedies which it may have at law or in equity, terminate
this Agreement by sending notice of termination in writing to the other Party to
such effect, and such termination will be effective as of the date of the
receipt of such notice. The defaulting Party will be responsible for all costs
and expenses associated with the termination, and will reimburse the non-
defaulting Party for such.
5. Survival. Termination of this Agreement by either Party for any reason
will not affect the rights and obligations of the parties accrued prior to the
effective date of termination of this Agreement. No termination of this
Agreement, however effectuated, will affect the Parties' rights and obligations
under Article IV Section 1, and Articles V, VI, VII, X and XI of this Agreement.
ARTICLE IV. INTELLECTUAL PROPERTY RIGHTS
1. Intellectual Property
a. TELIK will own all right, title and interest in and to the TELIK
Background Technology. TELIK will own all right title and interest in and to the
TELIK Intellectual Property.
b. UNIVERSITY will own all right, title and interest in and to the
UNIVERSITY Intellectual Property.
c. UNIVERSITY and TELIK shall jointly own all right, title and
interest in and to the Joint Intellectual Property and all data and results
generated in the course of the Research Project.
d. TELIK will have the right, but not the obligation, to file and
prosecute in all countries of the world patent applications claiming any of the
Inventions arising out of the
6.
[*] = 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 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
Research Project prior to completion of [*] as described on Exhibit A, and for
TELIK Projects and Joint Projects, and maintain issued Patents thereon. TELIK
shall consult with UNIVERSITY with respect to any comments or suggestions
UNIVERSITY may have regarding such filing or prosecution prior to the expiration
of [*] of the Research Project, and thereafter with respect to UNIVERSITY
Projects, and UNIVERSITY shall cooperate with TELIK in the preparation of such
patent applications, including without limitation, executing any necessary
powers of attorney. TELIK will keep UNIVERSITY reasonably informed of the
progress of such prosecution by providing semi-annual status reports. TELIK will
bear all costs and expenses associated with patent applications and prosecutions
for TELIK Projects and for Joint Projects.
e. UNIVERSITY will have the right, but not the obligation, to file and
prosecute in all countries of the world patent applications claiming any of the
Inventions included in UNIVERSITY Projects, and maintain issued Patents thereon.
UNIVERSITY shall consult with TELIK with respect to any comments or suggestions
TELIK may have regarding such filing or prosecution with respect to UNIVERSITY
Projects, and TELIK shall cooperate with UNIVERSITY in the preparation of such
patent applications, including without limitation, executing any necessary
powers of attorney. UNIVERSITY will keep TELIK reasonably informed of the
progress of such prosecution by providing semi-annual status reports.
UNIVERSITY will bear all costs and expenses associated with patent applications
and prosecutions for UNIVERSITY Projects, provided however, that if for any
UNIVERSITY Project, TELIK causes, by written request, UNIVERSITY to file a
patent claiming any of the Inventions included in such UNIVERSITY Project, TELIK
will bear all costs of filing and prosecuting such patent application and
maintaining any issued Patents thereon. TELIK may recover [*] of such costs by
deducting them from royalties owed by TELIK to UNIVERSITY under this Agreement,
provided that any such deduction shall not exceed [*] of amounts due to
UNIVERSITY in any calendar quarter, and any portion of such costs not deducted
from royalties in a given quarter may be carried forward to use as a credit
against future royalties, until all such credits are exhausted. In no instance
shall such deduction exceed [*] of the amount due to the UNIVERSITY in the
relevant quarter. If UNIVERSITY licenses to a third party the right to practice
such Inventions, then as of the effective date of such license TELIK will no
longer be responsible for such costs, and UNIVERSITY may at its election
transfer responsibility for such costs to its third party licensee.
f. Each Party shall promptly notify the other in writing of any
alleged or threatened infringement of patents covering Joint Projects of which
it becomes aware and which may adversely impact the rights of the Parties
hereunder, and the Parties shall meet and discuss in good faith how to respond
to the infringement. Regardless of which Party brings the action, any recovery
obtained by settlement or otherwise shall be disbursed as follows: the Party
bringing such action shall first ensure that any reasonable expenses incurred in
assisting in such action (including counsel fees) by both Parties are
reimbursed. Thereafter, the net recovery shall be shared between the Parties.
g. Each Party shall promptly notify the other in writing of any third
party claim that a product arising from a Joint Project infringes such third
party's intellectual property, and the Parties shall meet and discuss in good
faith how to defend such claim and an appropriate allocation of responsibility
for defense costs.
7.
[*] = 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 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
2. Licenses
a. Screening License. Subject to the terms and conditions of this
Agreement, TELIK hereby grants to UNIVERSITY during the Screening Period and the
Evaluation Period an exclusive license, with no right to sublicense, under any
applicable Library Compound Intellectual Property to screen the Library
Compounds for activity against the Selected Targets.
b. Commercialization License to TELIK. Subject to the terms and
conditions of this Agreement, UNIVERSITY hereby grants TELIK a worldwide,
exclusive, royalty-bearing license, with the right to sublicense, under
UNIVERSITY's rights and interests in the Joint Intellectual Property and under
the UNIVERSITY Intellectual Property solely to develop, make, have made, use,
import, offer for sale and sell Telik Products.
c. Commercialization License to UNIVERSITY. Subject to the terms and
conditions of this Agreement, TELIK hereby grants UNIVERSITY a worldwide,
exclusive, royalty-bearing license, with the right to sublicense, under TELIK's
rights and interests in the Joint Intellectual Property and under the TELIK
Intellectual Property solely to develop, make, have made, use, import, offer for
sale and sell UNIVERSITY Products.
ARTICLE V. PUBLICATION
1. TELIK recognizes that the results of UNIVERSITY's involvement in the
Research Project must be publishable or otherwise available for public
dissemination, and agrees that UNIVERSITY has the right to present at
international, national or regional professional meetings or symposia, and to
publish in journals, theses, or dissertations, or otherwise of their own
choosing, methods, information and data resulting from or gained in pursuing the
Research Plan with respect to University Projects.
2. In order to avoid improper disclosure of TELIK's proprietary
information or loss of patent protection through public disclosure of said
information, UNIVERSITY will furnish TELIK with copies of any proposed
publication or presentation at least [*] in advance of such proposed publication
or public presentation.
3. TELIK shall have [*] after receipt of said copies to object to such
proposed public dissemination; in which event UNIVERSITY shall refrain from
making such publication or presentation for a maximum of [*] from the date of
receipt of such objection in order for TELIK to file the appropriate patent
applications or to take appropriate measures to protect TELIK Background
Technology and TELIK Intellectual Property.
4. TELIK shall have the right to request that any information it can
substantiate as being proprietary to TELIK be deleted from the materials
submitted, or that portions thereof be rewritten so as to protect the
proprietary rights of TELIK.
8.
[*] = 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 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
ARTICLE VI. CONFIDENTIAL INFORMATION
TELIK and UNIVERSITY may choose, from time to time, in connection with work
contemplated under this Agreement, to disclose confidential information to each
other including without limitation scientific, manufacturing, marketing,
financial, personnel and other business information and plans, whether in oral,
written, graphic or electronic form (Confidential Information). All such
disclosures must be in writing and marked as Confidential Information. During
the term of this Agreement and for [*] after its expiration or termination, the
Parties will use reasonable efforts to prevent the disclosure to unauthorized
third parties of any Confidential Information of the other Party, except to the
extent such disclosure is expressly authorized by this Agreement, and will use
such information only for the purposes of this Agreement; provided that the
receiving Party's obligations hereunder shall not apply to information as to
which the receiving Party can demonstrate by competent proof:
a. is already in the receiving Party's possession, other than under an
obligation of confidentiality, at the time of disclosure; or,
b. is at the time of disclosure or later becomes part of the public
domain through no fault of the receiving Party; or,
c. is received from a third party with no duty of confidentiality to
the disclosing party; or,
d. was developed independently by the receiving party prior to
disclosure without use of the disclosing Party's Confidential Information.
Each Party may disclose Confidential Information belonging to the other
Party to the extent such disclosure is reasonably necessary in the following
situations:
(i) filing or prosecuting patents relating to Active
Compounds, TELIK Products and UNIVERSITY Products;
(ii) regulatory filings, including filings with the Securities
and Exchange Commission;
(iii) prosecuting or defending litigation;
(iv) complying with applicable governmental regulations;
(v) conducting pre-clinical or clinical trials of UNIVERSITY
Products and TELIK Products;
(vi) disclosure to Affiliates and sublicensees who agree to be
bound by similar terms of confidentiality;
(vii) disclosure to any person or entity who may be interested
in investing in or acquiring all or substantially all of the assets or
securities of such Party and who agrees to be bound by terms of confidentiality
not less stringent than those contained herein; and
9.
[*] = 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 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
(viii) consulting with a Party's own financial or legal advisors
or potential or retained investment bankers, with the understanding by both
Parties that obtaining confidentiality agreements from financial or legal
advisors or investment banks is in practice difficult to obtain. However, the
Party disclosing the Confidential Information of the other Party hereunder shall
make reasonable efforts to obtain agreement, in writing or at very least orally,
that such parties to whom said information is disclosed shall maintain the
information in strict confidence beyond anything which has already publicly
disclosed by the Parties hereto.
Notwithstanding the foregoing, in the event a Party is required to make a
disclosure of the other Party's Confidential Information pursuant to this
Article VI it will, except where impracticable, give reasonable advance notice
to the other Party of such disclosure and use best efforts 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
Any information that is transmitted orally or visually, in order to be
protected hereunder, shall be identified as such by the disclosing party at the
time of disclosure, and identified in writing to the receiving party, as
Confidential Information, within [*] after such oral or visual disclosure.
ARTICLE VII. PUBLICITY
Except as required by law, no press release or other statements in
connection with work performed under this Agreement intended for use in the
public media, having or containing any reference to TELIK or UNIVERSITY shall be
made by either Party without approval of the other Party, which shall not be
unreasonably withheld. UNIVERSITY shall acknowledge TELIK's support of the
Research Plan in scientific publications and communications. All statements by
the Parties shall describe the scope and nature of their participation
accurately and appropriately.
ARTICLE VIII. ARBITRATION
The Parties agree that any dispute hereunder involving [*] or less in money
damages only, exclusive of interest, cost or attorneys' fees, will be subject to
binding arbitration conducted in Tucson Arizona, pursuant to the Arizona Supreme
Court Rules for Compulsory Arbitration.
ARTICLE IX. NOTICES
Notices shall be in writing and deemed effective when sent, postage prepaid
to:
TELIK:
Telik, Inc.
Attn: Chief Executive Officer
000 Xxxxxxx Xxxx.
Xxxxx Xxx Xxxxxxxxx, XX 00000
10.
[*] = 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 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
UNIVERSITY:
Notices and Correspondence:
Via U.S. Postal Service:
SPONSORED PROJECTS SERVICES
X.X. Xxx 0000
Xxxxxx, Xxxxxxx 00000-0000
Via Fed Ex., UPS or other expedited delivery:
SPONSORED PROJECTS SERVICES
000 X. Xxxxxx Xxx., Xx. 000
Xxxxxx, Xxxxxxx 00000-0000
Phone: (000) 000-0000
Payments:
UNIVERSITY OF ARIZONA FRS #470740
X.X. Xxx 00000
Xxxxxx, Xxxxxxx 00000-0000
ARTICLE X. INDEMNIFICATION
1. TELIK shall indemnify and hold harmless Principal Investigator and
UNIVERSITY, its governing board, officers, agents, and employees, from any
liability, loss or damage they may suffer as the result of claims, demands,
suits or actions by a third party arising out of any death or injury to person
or any damage to property and resulting directly or proximately from the
development, manufacture, use or sale of TELIK Products by TELIK, its licensees
or sublicensees (other than UNIVERSITY) or the manufacture or use of Library
Compounds by TELIK (the "UNIVERSITY" Claims), but only to the extent such
UNIVERSITY Claims do not result from the negligence or willful malfeasance of
Principal Investigator, ABOR, or UNIVERSITY, its officers, employees or agents.
2. In the event that UNIVERSITY develops, manufactures, uses or sells
UNIVERSITY Products during the term of this Agreement, UNIVERSITY shall, to the
extent permitted by applicable law, indemnify and hold harmless TELIK, its
officers, agents, and employees, from any liability, loss or damage they may
suffer as the result of claims, demands, suits or actions by a third party
arising out of any death or injury to person or any damage to property and
resulting directly or proximately from the development, manufacture, use or sale
of UNIVERSITY Products by UNIVERSITY, its licensees or sublicensees (other than
TELIK) or the use of Library Compounds by UNIVERSITY (the "TELIK" Claims), but
only to the extent such TELIK Claims do not result from the negligence or
willful malfeasance of TELIK, its officers, employees or agents. In the event
that University grants a license or sublicense of any of its rights under or
arising from this Agreement to a third party, it shall cause such third party to
indemnify and hold harmless TELIK, its officers, agents, and employees, from any
liability, loss or damage they may suffer as the result of claims, demands,
suits or actions by a third party arising out of any death or injury to person
or any damage to property and resulting directly or proximately from the
development, manufacture, use or sale of UNIVERSITY Products by UNIVERSITY's
licensees or sublicensees (other than TELIK) or the use of Library Compounds by
UNIVERSITY's licensees or sublicensees (the "TELIK" Claims), but only to the
extent such
11.
[*] = 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 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
TELIK Claims do not result from the negligence or willful malfeasance of TELIK,
its officers, employees or agents.
3. Any entity entitled to indemnification under this Article X shall give
written notice to the indemnifying party as soon as they become aware of any
such claim or action, and shall cooperate with and to authorize the indemnifying
party to carry out the sole management and defense of such claim or action.
Such notice shall contain all relevant facts concerning such claim or action.
The indemnifying party shall assume the defense of such Claim with counsel
reasonably satisfactory to the indemnified Party. The indemnifying Party shall
not compromise or settle any claim or action without the prior written approval
of the indemnified Party.
ARTICLE XI. GENERAL PROVISIONS
1. This Agreement embodies the entire understanding of the Parties and
supersedes any other agreement or understanding between the Parties relating to
the subject matter hereof.
2. No waiver, amendment or modification of this Agreement shall be valid
or binding unless written and signed by the Parties. Waiver by either Party of
any breach or default of any clause of this Agreement by the other Party shall
not operate as a waiver of any previous or future default or breach of the same
or different clause of this Agreement.
3. This Agreement may not be assigned by either Party without the prior
written consent of the other Party, which consent will not be unreasonably
withheld; provided that either Party shall have the right to assign to the
surviving entity pursuant to a merger or acquisition of such Party, or to the
acquirer of substantially all assets of such Party. Subject to the restrictions
contained in the preceding sentence, this Agreement shall be binding upon and
inure to each Party's respective successors in interest.
4. This Agreement shall be interpreted pursuant to the laws of the State
of Arizona. Any arbitration or litigation between the Parties shall be conducted
in Pima County, Arizona.
5. If any provision of this Agreement is held void or unenforceable, the
remaining provisions shall nevertheless be effective, the intent being to
effectuate this Agreement to the fullest extent possible.
6. The Parties agree to be bound by applicable state and federal laws and
regulations governing equal opportunity and non-discrimination.
7. The Parties recognize that performance by UNIVERSITY depends upon
appropriation of funds by the State Legislature of Arizona. If the Legislature
fails to appropriate the necessary funds, or if UNIVERSITY's appropriation is
reduced during the fiscal year, ABOR may reduce the scope of this Agreement if
appropriate or cancel this Agreement without further duty or obligation.
UNIVERSITY agrees to notify TELIK as soon as reasonably possible after ABOR
knows of the loss of funds.
8. This Agreement is subject to the provisions of A.R.S. 38-511. The State
of Arizona may cancel this Agreement if any person significantly involved in
negotiating, drafting,
12.
[*] = 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 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
securing or obtaining this Agreement for or on behalf of the Arizona Board of
Regents becomes an employee in any capacity of any other party or a consultant
to any other party with reference to the subject matter of this Agreement while
the Agreement or any extension thereof is in effect.
9. Exhibits A, B and C are made part of this Agreement for all purposes.
The term "days" as used herein shall refer to calendar days.
10. The Parties are deemed independent contractors and may not bind the
other, except as provided for herein or authorized in writing by the other
Party.
11. TELIK ACKNOWLEDGES THAT THE WORK SET FORTH IN THE RESEARCH PLAN IS
EXPERIMENTAL IN NATURE AND THAT UNIVERSITY MAKES NO WARRANTIES OF ANY KIND,
EXPRESSED OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, REGARDING THE RESULTS OF THE RESEARCH DESCRIBED IN THE
RESEARCH PLAN.
12. THE LIBRARY COMPOUNDS ARE BEING SUPPLIED TO UNIVERSITY ON AN "AS IS"
BASIS WITH NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR THAT THEY ARE FREE
FROM THE RIGHTFUL CLAIM OF ANY THIRD PARTY, BY WAY OF INFRINGEMENT OR THE LIKE.
TELIK MAKES NO REPRESENTATIONS THAT USE OF THE LIBRARY COMPOUNDS WILL NOT
INFRINGE ANY PATENT OR OTHER PROPRIETARY RIGHTS OF ANY THIRD PARTIES.
13. EXCEPT AS SET FORTH IN SECTION 13, THE TECHNOLOGY PROVIDED BY TELIK
HEREUNDER IS PROVIDED "AS IS" AND TELIK EXPRESSLY DISCLAIMS ANY AND ALL
WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE
WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NONINFRINGEMENT OF THE INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES OR ARISING
FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICES, IN ALL CASES WITH RESPECT
THERETO. Without limiting the generality of the foregoing, TELIK expressly does
not warrant (i) the success of any study or test commenced under the Agreement
or (ii) the safety or usefulness for any purpose of the technology it provides
hereunder.
14. No Party shall be liable for any delay or failure of performance to the
extent such delay or failure is caused by circumstances beyond its reasonable
control and that by the exercise of due diligence it is unable to prevent,
provided that the Party claiming excuse uses its best efforts to overcome the
same.
15. The Parties shall review in good faith and cooperate in taking such
actions to ensure compliance of this Agreement with all applicable laws,
including without limitation, EC Competition Law.
13.
[*] = 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 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
16. No Party shall be liable to another for indirect, incidental,
consequential or special damages, including but not limited to lost profits,
arising from or relating to any breach of this Agreement, regardless of any
notice of the possibility of such damages. Nothing in this Section is intended
to limit or restrict the indemnification rights or obligations of any Party.
17. This Agreement may be executed in one or more counterparts, each of
which shall be an original and all of which shall constitute together the same
document.
IN WITNESS THEREOF, the Parties execute this Agreement as of the day and
year written above.
TELIK, Inc. The Arizona Board of Regents
on behalf of
The University of Arizona
By: /s/ Xxxxxxxx X. Xxxxx By: /s/ Xxxxxxx X Xxxxx, Xx.
-------------------------------- -------------------------------------
Xxxxxxxx X. Xxxxx Xxxxxxx X. Xxxxx, Xx.
Director, Office of Research and
Title: VP, Product Development Title: Contract Analysis
----------------------------- ---------------------------------
Date: January 8, 2001 Date: January 4, 2001
----------------------------- ----------------------------------
I have read this Agreement, and understand the obligations placed on me and
my laboratory and other UNIVERSITY employees under my supervision, and agree to
be bound by it.
Name: Xxxxxxxx X. Xxxxxx
----------------------------------
PRINCIPAL INVESTIGATOR
Signature: /s/ Xxxxxxxx X. Xxxxxx
-------------------------------
Date: December 28, 2000
----------------------------------
14.
[*] = 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 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
EXHIBIT A
RESEARCH PLAN
[*]
Overview of Screening. Pursuant to this Research Plan, TELIK will utilize
its technology and compound library to select and provide to UNIVERSITY certain
compounds from the TELIK Library for screening against the Selected Targets.
Based upon the assay results provided by UNIVERSITY from the first such
iteration of screening, TELIK shall select, using its TRAP Technology,
additional compounds from the TELIK Library likely to have greater activity
against each particular Selected Target and provide them to UNIVERSITY for
screening. The Parties will repeat this procedure for several iterations with
the goal of obtaining small molecule compounds that show maximal activity
against the Selected Targets.
Target Selection.
During the [*] of the Screening Term, UNIVERSITY may notify TELIK in
writing of targets against which UNIVERSITY wishes to screen compounds provided
by TELIK ("Proposed Targets"). UNIVERSITY's notification must provide the
identity of the Proposed Targets and such other information as TELIK may
reasonably request to permit TELIK to confirm that none of such Proposed Targets
[*] (collectively, "Reserved Targets"). TELIK shall notify UNIVERSITY in writing
whether or not each Proposed Target is a Reserved Target. If a Proposed Target
is not a Reserved Target, then the Proposed Target will be deemed a "Selected
Target" upon dispatch of TELIK's notification. TELIK shall list all Proposed
Targets in the Appendix to this Agreement and shall update such Appendix, as
necessary, to indicate whether a Proposed Target becomes a Selected Target and
to delete all Reserved Targets. UNIVERSITY may designate [*] Selected Targets.
First Iteration.
(a) With respect to each Selected Target, within [*] of the date of
TELIK's acceptance of such Selected Target TELIK shall, based upon its knowledge
of the TELIK Library and using the TRAP Technology, select and provide to
UNIVERSITY approximately [*] Library Compounds (the "Initial Compounds") from
the TELIK Library that TELIK believes, in its sole discretion, represent maximum
chemical compound diversity in the TELIK Library. Using the appropriate Selected
Assay, UNIVERSITY shall screen each Initial Compound for activity in relation to
each Selected Target and, for each Selected Target, provide all data (including
but not limited to the concentration at which each Initial Compound elicits a
response which is 50% of the maximum response in the Selected Assay (the
"EC\\50\\") resulting therefrom (the "Initial Results") to TELIK within [*] of
the date of UNIVERSITY's receipt of the Initial Compounds. UNIVERSITY hereby
covenants that it will not use the Initial Compounds for any purpose other than
that set forth in this Section, it will cease using the Initial Compounds after
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE
24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
A-1
completion of testing as set forth in this Section, and it will store and return
unused Initial Compounds to TELIK unless specifically authorized by TELIK, in
writing, to do otherwise.
(b) Repetition with Substitute Compounds. If the Initial Results contain
information that, in TELIK's sole discretion, is insufficient for TELIK to
select Secondary Compounds pursuant to paragraph (a) above, then TELIK will
provide UNIVERSITY with another set of up to [*] Library Compounds (the
"Substitute Initial Compounds"). The Substitute Initial Compounds shall be
treated by both Parties as if they were Initial Compounds and shall be screened
as provided in paragraph (a) above; provided, however, that if the Initial
Results from the Substitute Initial Compounds contain insufficient useful
information for TELIK to select Secondary Compounds, TELIK [*] to UNIVERSITY
with respect to the applicable Selected Target.
Second Iteration. Approximately [*] after receipt of the Initial Results
for a Selected Target, TELIK shall, based upon the Initial Results and using the
TRAP Technology or any other search technology available to TELIK, select and
provide to UNIVERSITY an [*] additional compounds (the "Secondary Compounds")
from the TELIK Library that TELIK believes, in its sole discretion, are the most
likely to exhibit the [*] relative levels of activity in the applicable Selected
Assay. Using this Selected Assay, UNIVERSITY shall screen each Secondary
Compound for activity in relation to the Selected Target and provide all data
(including but not limited to the EC50 for each Secondary Compound) resulting
therefrom (the "Secondary Results") to TELIK within [*] of UNIVERSITY's receipt
of the Secondary Compounds. UNIVERSITY hereby covenants that it will not use the
Secondary Compounds for any purpose other than that set forth in this Section,
it will cease using the Secondary Compounds after completion of testing as set
forth in this Section,, and it will return unused Secondary Compounds to TELIK
unless specifically authorized by TELIK, in writing, to do otherwise.
Third Iteration. Approximately [*] after receipt of the Secondary Results,
TELIK shall, based upon the Secondary Results and using the TRAP Technology or
any other search technology available to TELIK, select and provide to UNIVERSITY
an [*] additional compounds (the "Tertiary Compounds") from the TELIK Library
that TELIK believes, in its sole discretion, are the most likely to exhibit the
[*] relative levels of activity in the applicable Selected Assay. Using this
Selected Assay, UNIVERSITY shall screen each Tertiary Compound for activity in
relation to the Selected Target and provide all data (including but not limited
to the EC50 for each Tertiary Compound) resulting therefrom (the "Tertiary
Results") to TELIK within [*] of UNIVERSITY's receipt of the Tertiary Compounds.
UNIVERSITY hereby covenants that it will not use the Tertiary Compounds for any
purpose other than that set forth in this Section, it will cease using the
Tertiary Compounds after completion of testing as set forth in this Section, and
it will return unused Tertiary Compounds to TELIK unless specifically authorized
by TELIK, in writing, to do otherwise.
Fourth Iteration. If UNIVERSITY and TELIK jointly determine that further
screening activity is necessary, then based upon the Tertiary Results and using
the TRAP Technology or any other search technology available to TELIK,
approximately [*] after such joint determination TELIK shall select and provide
to UNIVERSITY an [*] additional compounds (the "Quaternary Compounds") from the
TELIK Library that TELIK believes, in its sole
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE
24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
A-2
discretion, are the most likely to exhibit the [*] relative levels of activity
in the applicable Selected Assay. Using this Selected Assay, UNIVERSITY will
screen each Quaternary Compound for activity in relation to the Selected Target
and provide TELIK all data (including but not limited to the EC50 for each
Quaternary Compound) resulting therefrom (the "Quaternary Results") to TELIK
within [*] of UNIVERSITY's receipt of the Quaternary Compounds. UNIVERSITY
hereby covenants that it will not use the Quaternary Compounds for any purpose
other than that set forth in this Section, it will cease using the Quaternary
Compounds after completion of testing as set forth in this Section, and it will
return unused Quaternary Compounds to TELIK unless specifically authorized by
TELIK, in writing, to do otherwise.
Compound Supply Obligation. The total number of Initial Compounds,
Secondary Compounds, Tertiary Compounds and Quaternary Compounds provided by
TELIK pursuant to this Research Plan with respect to a particular Selected
Target (collectively, the "Provided Compounds") shall be in the range of
approximately [*] to approximately [*] Provided Compounds per Selected Target.
Each Provided Compound will be supplied in quantities of approximately [*].
Active Compound Criteria. A compound will be considered active if it has an
EC\\50\\ of [*].
[*].
Additional Testing. During the Evaluation Period, UNIVERSITY and TELIK
shall have the right to use Active Compounds and Derivatives thereof provided
pursuant to the following paragraph for the purpose of conducting additional
tests, including screening in a Selected Assay and structure-activity
relationship studies, of the activity or mechanism of action of such Active
Compounds and Derivatives as to Selected Targets, but for no other purpose.
TELIK will supply [*] quantities of the required Active Compounds. The Party
conducting the evaluation shall provide all data resulting therefrom to the
other Party before the end of the Evaluation Period.
[*]
Selection of Initial Telik Projects. Not later than [*] after the end of
the Evaluation Period, TELIK shall notify UNIVERSITY as to which of the Selected
Targets identified by UNIVERSITY and for which Active Compounds have been
identified TELIK wishes to undertake further development (the "Initial TELIK
Projects"). The Initial Telik Projects shall not exceed [*] Selected Targets.
Disclosure of Structures. Within [*] days after such notification to
UNIVERSITY, TELIK shall disclose to UNIVERSITY, for each Selected Target other
than the Selected Targets identified by TELIK in the preceding paragraph, the
chemical structure of all Active Compounds with respect to such remaining
Selected Targets.
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE
24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
A-3
Selection of Remaining Telik and University Projects. Thereafter, the
Selected Targets shall be divided between TELIK and UNIVERSITY as follows: [*].
UNIVERSITY shall notify TELIK in writing of any and all Selected Targets against
which it wishes to develop Active Compounds or Derivatives thereof for human
therapeutic uses (the "UNIVERSITY Development Targets"). UNIVERSITY shall have
the right to develop and commercialize all UNIVERSITY Development Compounds (as
defined in the Agreement), as well as Derivatives thereof, on its own or in
collaboration with a third party under the license granted in Article IV,
Section 2 of the Agreement and other applicable terms of this Agreement. TELIK
shall notify UNIVERSITY in writing of any and all Selected Targets against which
it wishes to develop Active Compounds or Derivatives thereof for human
therapeutic uses (the "TELIK Development Targets"). TELIK shall have the right
to develop and commercialize all TELIK Development Compounds (as defined in the
Agreement), as well as Derivatives thereof, on its own or in collaboration with
a third party under the license granted in Article IV, Section 2 of the
Agreement and other applicable terms of this Agreement. TELIK and UNIVERSITY may
elect to conduct further development with respect to a particular Selected
Target together. In such event, the Parties shall proceed pursuant to a separate
written agreement that is consistent with the terms of this Agreement expressly
relating to Joint Projects.
[*].
Reports by UNIVERSITY. Within [*] of the end of every calendar year ending
after the conclusion of the Evaluation Period, UNIVERSITY shall provide to TELIK
a detailed report as to its activities in developing and commercializing
UNIVERSITY Products. These reports shall contain information sufficient to
determine the status of the UNIVERSITY Projects.
Reports by TELIK. Within [*] of the end of every calendar year ending after
the conclusion of the Evaluation Period, TELIK shall provide to UNIVERSITY a
detailed report as to its activities in developing and commercializing TELIK
Products. These reports shall contain information sufficient to determine the
status of the TELIK Projects.
Responsibility and Costs. UNIVERSITY shall be responsible for, and shall
bear all [*]. TELIK shall be responsible for, and shall bear all [*]. Such
responsibility shall include, without limitation, responsibility for preclinical
and clinical development, regulatory strategy, process development and
manufacturing. TELIK will give UNIVERSITY favorable treatment status for the
conduct of clinical trials associated with TELIK Products.
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE
24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
A-4
EXHIBIT B
I. FINANCIAL TERMS
a. Research Fee: TELIK shall pay a research fee in the amount of [*] as
follows:
-------------------------------------------------------------------------
Payment Date Fee
-------------------------------------------------------------------------
[*] [*]
-------------------------------------------------------------------------
[*] [*]
-------------------------------------------------------------------------
Total [*]
-------------------------------------------------------------------------
Checks for payment of research fees shall be made payable to The University of
Arizona, and shall identify the UA account No. ?????. Payment shall be sent to
-----
the following address:
The University of Arizona
Sponsored Projects Services
X.X. Xxx 00000
Xxxxxx, Xxxxxxx 00000-0000
b. Royalties:
(i) UNIVERSITY shall pay TELIK a [*] on [*] to be sold commercially
by UNIVERSITY or its Affiliate, licensee or sublicensee, for each UNIVERSITY
Development Target.
(ii) TELIK shall pay UNIVERSITY a [*] on [*] to be sold commercially
by TELIK, its Affiliate, licensee or sublicensee, for each TELIK Development
Target.
(iii) Royalties shall be due and payable quarterly within [*] after
the end of each [*] to an account indicated to the payer from time to time. The
payer shall inform the payee of such payment in writing by providing a report
showing [*], and the calculation of the royalty payment made.
c. Royalty Term: The royalty obligation set forth in subparagraph b.
above shall expire on a country-by-country, product-by-product basis on the
later of (i) [*] after the date of first commercial sale of a UNIVERSITY Product
or a TELIK Product, as applicable, in a particular country, or (ii) upon the
expiration of the [*].
d. Payments, Records, Audits.
(i) All amounts payable under this Agreement shall be paid in U.S.
dollars. Where a Party does not receive payment of any sum due to it on or
before the due date, simple interest shall thereafter accrue on the sum due to
the other Party until the date of payment at the per annum rate of [*] over the
then current prime rate of Citibank in New York City.
(ii) During the term of this Agreement and for a period of [*]
thereafter, each Party shall keep complete and accurate records pertaining to
the sale of any UNIVERSITY Product or TELIK Product, as applicable, in
sufficient detail to permit the other Party to confirm the accuracy of all
payments due hereunder. Each Party shall have the right to cause an independent,
certified public accountant reasonably acceptable to the other Party to audit
such records to confirm such other Party's sales of UNIVERSITY Products or TELIK
Products, as
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE
24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
B-1.
applicable; provided, however, that such auditor shall not disclose Confidential
Information of a Party. Such audits may be exercised [*], within [*] after the
sales period to which such records relate, with reasonable prior notice to the
Party to be audited and during normal business hours.
(iii) Any royalty payments on Net Sales are to be calculated
and made net of withholding taxes levied by tax authorities of a country in the
Territory of a Party. The Party receiving the payment free of withholding taxes
shall reasonably cooperate with the other Party in the event such other Party
desires to claim exemption from such withholding or seeks deductions under any
double taxation or other similar treaty or agreement from time to time in force.
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE
24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
B-2.
