Exhibit 10.14
CONFIDENTIAL TREATMENT HAS BEEN SOUGHT FOR
PORTIONS OF THIS EXHIBIT PURSUANT TO RULE 24B-2
UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED
EXECUTION COPY
LICENSE AGREEMENT
BETWEEN
ELAN PHARMA INTERNATIONAL LIMITED
AND
PHOTOGEN NEWCO LTD.
TABLE OF CONTENTS
1. DEFINITIONS
2. ELAN LICENSE TO NEWCO
3. INTELLECTUAL PROPERTY
4. [****]/AFTER ACQUIRED TECHNOLOGY
5. FINANCIAL PROVISIONS
6. RIGHT OF INSPECTION AND AUDIT
7. REPRESENTATIONS AND WARRANTIES
8. TERM AND TERMINATION
9. CONFIDENTIAL INFORMATION
10. GOVERNING LAW AND ARBITRATION
11. IMPOSSIBILITY OF PERFORMANCE - FORCE MAJEURE
12. ASSIGNMENT
13. NOTICES
14. MISCELLANEOUS
----------------
[****] REPRESENTS MATERIAL WHICH HAS BEEN REDACTED PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
THIS AGREEMENT made this 20th October 1999
BETWEEN:
(1) ELAN PHARMA INTERNATIONAL LIMITED incorporated under the laws of
Ireland, and having its registered office at XXX Xxxxx, Xxxxxxx
Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxx Xxxxx, Xxxxxxx ("EPIL");
(2) PHOTOGEN NEWCO, LTD., an exempted private limited liability
company incorporated under the laws of Bermuda and having its
registered office at Xxxxxxxxx Xxxxx, 0 Xxxxxx Xxxxxx, Xxxxxxxx,
Xxxxxxx ("XXXXX"); and
(3) PHOTOGEN TECHNOLOGIES, INC., a corporation duly incorporated and
validly existing under the laws of Nevada and having its principal
place of business at 0000 Xxx Xxxxx, Xxxxxxxxx, XX. 00000, Xxxxxx
Xxxxxx of America.
RECITALS:
A. Simultaneously herewith, Photogen, Elan, EIS, and Newco are
entering into the JDOA for the purpose of recording the terms
and conditions of the joint venture and of regulating their
relationship with each other and certain aspects of the affairs
of, and their dealings with Newco.
B. Newco desires to enter into this Agreement with Elan so as to
permit Newco to utilize the Elan Intellectual Property in
making, having made, importing, using, offering for sale and
selling the Products in the Field in the Territory.
C. Simultaneously herewith Newco and Photogen are entering into
the Photogen License Agreement relating to Newco's use of the
Photogen Intellectual Property.
1 DEFINITIONS
1.1 In this Agreement unless the context otherwise requires:
"AFFILIATE" shall mean any corporation or entity controlling,
controlled or under the common control of Elan or Photogen, as the case
may be. For the purpose of this definition, "control" shall mean direct
or indirect ownership of fifty percent (50%) or more of the stock or
shares entitled to vote for the election of directors. Newco is not an
Affiliate of Photogen, Elan or EIS.
"AGREEMENT" shall mean this license agreement (which expression shall
be deemed to
include the Recitals and Schedules hereto).
"BUSINESS PLAN" shall have the meaning, as such term is defined in
the JDOA.
----------------
[****] REPRESENTS MATERIAL WHICH HAS BEEN REDACTED PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
"CHANGE OF CONTROL OF PHOTOGEN/NEWCO" shall mean circumstances where:
(i) a Technological Competitor of Elan shall, directly or
indirectly, acquire 10% or more of the voting stock of Photogen
or Newco, or otherwise control or influence in any material
respect their management or business or otherwise have entered
into any joint venture, collaborative, license or other
arrangement with Photogen or Newco, as the case may be, to such
an extent that such a Technological Competitor of Elan is
materially engaged or involved with the business or development
of Photogen or Newco, as the case may be; or
(ii) any person other than a Technological Competitor of Elan shall,
after the Effective Date, directly or indirectly, acquire 20% or
more of the then voting stock of Photogen or Newco, or otherwise
merge, consolidate or enter into any similar transaction (or
binding agreement in respect thereof) with Photogen or Newco.
"COMPOUNDS" shall mean the [****].
"CONFIDENTIAL INFORMATION" shall have the meaning, as such term is
defined in Clause 9.
"CONTROL" shall mean the ability to grant a license or sublicense as
contemplated herein without violating the terms of any agreement with
any third party.
"DEFINITIVE DOCUMENTS" shall mean the definitive agreements relating to
the transaction between the Parties and Photogen including finance,
stock purchase, research and license agreements.
"ELAN" shall mean EPIL (a wholly owned subsidiary of Elan Corporation,
Plc., which owns the Nanocrystal-TM- technology formerly Controlled
by NanoSystems LLC, formerly a subsidiary of the Xxxxxxx Kodak Company)
and Affiliates and subsidiaries of Elan Corporation, Plc. within the
division of Elan Corporation, Plc. carrying on business as Elan
Pharmaceutical Technologies but shall not include Affiliates and
subsidiaries (present or future) of Elan Corporation Plc within the
division of Elan Corporation, Plc carrying on business as Elan
Pharmaceuticals which incorporates, inter alia, Targon Corporation,
Athena Neurosciences, Inc., Elan Pharmaceuticals, Inc., Elan
Diagnostics, Carnrick Laboratories, and Elan Europe Limited.
"EIS" shall mean Elan International Services, Limited, a exempted
private limited liability company incorporated under the laws of
Bermuda and having its registered office at Xxxxxxxxx Xxxxx, 0 Xxxxxx
Xxxxxx, Xxxxxxxx, Xxxxxxx and a subsidiary of Elan Corporation, Plc..
"EFFECTIVE DATE" shall mean the date of this Agreement.
"ELAN INTELLECTUAL PROPERTY" shall mean the Elan Know-How, the Elan
Patents and the Elan Improvements.
For the avoidance of doubt, Elan Intellectual Property shall exclude
(i) Elan's patent rights and know-how relating to drug delivery devices
including parenteral administration of a diagnostic imaging agent via a
drug delivery device such as Medipad
----------------
[****] REPRESENTS MATERIAL WHICH HAS BEEN REDACTED PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
and (ii) inventions, patents and know-how owned, licensed or Controlled
by Axogen Limited and Neuralab Limited, and by all Affiliates and
subsidiaries (present or future) of Elan Corporation, Plc. within the
division of Elan Corporation, Plc carrying on business as Elan
Pharmaceuticals which incorporates, inter alia, Targon Corporation,
Athena Neurosciences, Inc., Elan Pharmaceuticals, Inc., Elan
Diagnostics, Carnrick Laboratories, and Elan Europe Limited.
"ELAN KNOW-HOW" shall mean any and all rights owned, or Controlled by
Elan to any Know-How relating to nanoparticulate medical diagnostic
imaging agents including, without limitation, [****]
The primary examples of the Elan Know-How existing as of the Effective
Date are set forth on Schedule 1 , which listing is not necessarily
exhaustive.
"ELAN LICENSE" shall have the meaning set forth in Clause 2.1.
"ELAN PATENTS" shall mean any and all Patent Rights owned or Controlled
by Elan, now existing, currently pending or hereafter filed by Elan
relating to nanoparticulate medical diagnostic imaging agents
including, without limitation, [****]. Representative Elan Patents
existing as of the Effective Date are set forth in Schedule 1.
"EPIL PATENTS" shall mean the Elan Patents owned by EPIL.
"ELAN IMPROVEMENTS" shall mean improvements relating to the Elan
Patents and/or the Elan Know-How , developed (i) by Elan not pursuant
to the Project, (ii) by Elan pursuant to the Project except for that
portion of improvements relating solely and specifically to Product(s)
(iii) by Newco or Photogen or by a third party (under contract with
Newco) pursuant to the Project except for that portion of improvements
relating solely and specifically to Product(s), and/or (iv) jointly by
any combination of Elan, Photogen or Newco pursuant to the Project
except for that portion of improvements relating solely and
specifically to Product(s), except as limited by agreements with
unaffiliated third parties.
Subject to third party agreements with unaffiliated third parties, Elan
Improvements shall constitute part of Elan Intellectual Property and be
included in the license of the Elan Intellectual Property pursuant to
Clause 2.1 solely for the purposes set forth therein. If the inclusion
of a Elan Improvement in the license of Elan Intellectual Property is
restricted or limited by a third party agreement, Elan shall use
reasonable commercial efforts to minimize any such restriction or
limitation.
"ELAN TRADEMARK(S)" shall mean one or more trademarks, trade names, or
service marks that are owned or licensed by or on behalf of Elan which
Elan may nominate and approve in writing from time to time and Newco
may accept for use in connection with the sale or promotion of the
Products by Newco.
"FIELD" shall mean the research, development, manufacture and
commercialization of nanoparticulate x-ray, CT, and/or MRI diagnostic
imaging agents using radio-opaque molecules containing Iodine that
passively target to lymphnodes involved in a disease state following
parenteral administration to a mammal to locate, diagnose and/or treat
cancer and/or other diseases.
For the avoidance of doubt, the Field does not include:
----------------
[****] REPRESENTS MATERIAL WHICH HAS BEEN REDACTED PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
(xv) active targeting agents, including but not limited to
monoclonal antibodies, short-chain antibodies or any other active
targeting agents including protein, peptide or peptidomimetic
targeting agents; or
(ii) ultrasound diagnostic imaging agents.
"KNOW-HOW" shall mean information and know-how, whether patentable or
not, including but not limited to any and all discoveries, inventions,
substances, data, techniques, processes, systems, formulations, designs
and commercial information relating to design, development,
manufacture, assembly, use or sale.
"LICENSED TECHNOLOGIES" shall mean the Elan Intellectual Property, the
Photogen Intellectual Property and the GenNyc Intellectual Property.
"LICENSES" shall mean the Elan License, the Photogen License and the
General Nycomed Sublicense.
"JDOA" shall mean that certain joint development and operating
agreement, of even date herewith, by and between Elan, Photogen, EIS
and Newco.
"MANAGEMENT COMMITTEE" shall have the meaning, as such term is defined
in the JDOA.
"NEWCO INTELLECTUAL PROPERTY" shall mean all Patent Rights and Know-How
and other intellectual property arising pursuant to the Project by any
person, that does not constitute Elan Intellectual Property or Photogen
Intellectual Property and any technology licensed or acquired by Newco
from a third party.
For avoidance of doubt, Newco Intellectual Property includes that
portion of all improvements developed pursuant to the Project relating
solely and specifically to Product(s).
"NEWCO PATENTS" shall mean any and all Patent Rights now existing,
currently pending or hereafter filed or obtained relating to the Newco
Intellectual Property.
"PARTY" shall mean Elan or Newco, as the case may be, and "PARTIES"
shall mean Elan and Newco.
"PATENT RIGHTS" shall mean any and all patents and patent applications,
including all divisonals, continuations, continuations-in-part,
extensions, patents-of-additions, re-examinations, re-issues,
supplementary protection certificates and foreign counterparts of such
patents and patent applications and any patents issuing thereon and
extensions thereon.
"PHOTOGEN" shall mean Photogen Technologies, Inc. and its
Affiliates, excluding Newco.
"PHOTOGEN INTELLECTUAL PROPERTY" shall mean the Photogen Know-How, the
Photogen Patents and the Photogen Improvements, as such terms are
defined in the Photogen License Agreement.
"PHOTOGEN LICENSE" shall mean have the meaning set forth in Clause 2.1
of the Photogen License Agreement.
"PHOTOGEN LICENSE AGREEMENT" shall mean that certain license agreement,
of even date herewith, entered into between Photogen and Newco.
"PHOTOGEN PATENTS" shall have the meaning as such term is defined in
the Photogen License Agreement.
"PHOTOGEN IMPROVEMENTS" shall have the meaning as such term is defined
in the Photogen License Agreement.
"PRODUCT" shall mean a formulation containing one or more x-ray, CT,
and/or MRI Compounds in nanoparticulate form developed by or on behalf
of Newco pursuant to the Project.
"PROJECT" shall mean all activities as undertaken by Elan, Photogen and
Newco in order to develop the Products.
"R&D COMMITTEE" shall have the meaning, as such term is defined in the
JDOA.
"R&D PLAN" shall have the meaning, as such term is defined in the JDOA.
"R&D PROGRAM" shall mean any research and development program commenced
by Newco pursuant to the Project.
"[****]"
"TECHNOLOGICAL COMPETITOR OF ELAN" shall mean a company, corporation or
person listed in Schedule 2 and successors thereof or any additional
broad-based technological competitor of Elan added to such Schedule
from time to time upon mutual agreement of the Parties.
"TERM" shall have the meaning set forth in Clause 8.
"TERRITORY" shall mean all the countries of the world.
"UNITED STATES DOLLAR" and "US$" shall mean the lawful currency for the
time being of the United States of America.
1.2 In this Agreement:
1.2.1 The singular includes the plural and vice versa, and the
masculine includes the feminine and vice versa and the neuter
includes the masculine and the feminine.
1.2.2 Any reference to a Clause or Schedule shall, unless
otherwise specifically provided, be to a Clause or Schedule
of this Agreement.
1.2.3 The headings of this Agreement are for ease of reference
only and shall not affect its construction or interpretation.
2. ELAN LICENSE TO NEWCO
2.1. Elan hereby grants to Newco for the Term an [****] license
(including the right to grant sublicenses under Clause 2.5) (the
"ELAN LICENSE") of the Elan Intellectual Property solely in the
Field to make, have made, import, use, offer for sale and sell
the Products in the Field in the Territory, subject to any
contractual obligations that Elan has as of the Effective Date,
including but not limited to the [****].
[*****]
[*****]
----------------
[****] REPRESENTS MATERIAL WHICH HAS BEEN REDACTED PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
2.2 To the extent royalty or other compensation obligations that
are payable to third parties with respect to the Elan
Intellectual Property would be triggered after the Effective
Date under any third party agreement entered into by Elan after
the Effective Date (the "ELAN POST-EFFECTIVE DATE AGREEMENTS"),
by a proposed use of such Elan Intellectual Property in
connection with the Project, Elan will inform Newco of such
royalty or compensation obligations. [****]
[****]
2.3 Photogen shall be a third party beneficiary under this Agreement
and shall have the right to cause Newco to enforce Newco's
rights under this Agreement against Elan.
2.4 Notwithstanding anything contained in this Agreement to the
contrary, Elan shall have the right outside the Field and
subject to the non-competition provisions of Clause 4 to exploit
and grant licenses and sublicenses of the Elan Intellectual
Property.
For the avoidance of doubt, Newco shall have no right to use the Elan
Intellectual Property outside the Field.
2.5 Newco shall not be permitted to assign or sublicense any of its
rights under the Elan Intellectual Property without the prior
written consents of Elan and Photogen, which consents shall not
be unreasonably withheld or delayed PROVIDED THAT Elan shall in
all cases, in its sole discretion, be entitled to withhold its
consent in the case of a proposed sublicense to any
Technological Competitor to Elan.
2.6 Any agreement between Newco and any permitted third party for
the development or exploitation of the Elan Intellectual
Property shall require such third party to maintain the
confidentiality of all information concerning the Elan
Intellectual Property.
Insofar as the obligations owed by Newco to Elan are concerned, Newco
shall remain responsible for all acts and omissions of any permitted
sub-licensee, including Photogen, as if they were acts and omissions
by Newco.
3 INTELLECTUAL PROPERTY
3.1 OWNERSHIP OF INTELLECTUAL PROPERTY:
3.1.1 Newco shall own the Newco Intellectual Property.
3.1.2 Elan shall own the Elan Intellectual Property.
----------------
[****] REPRESENTS MATERIAL WHICH HAS BEEN REDACTED PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
3.2 TRADEMARKS:
3.2.1 Elan hereby grants to Newco for the Term a [****]
license in the Territory to use and display the Elan
Trademarks to promote, offer for sale and sell the Products
in the Field in the Territory and the following provisions
shall apply as regards the use of the Elan Trademarks by
Newco hereunder:
(1) Newco shall ensure that each reference to and use
of an Elan Trademark by Newco is in a manner approved
by Elan and accompanied by an acknowledgement, in a
form approved by Elan, that the same is a trademark
(or registered trademark) of Elan.
From time to time, upon the reasonable request of Elan,
Newco shall submit samples of the Product to Elan or
its duly appointed agent to ensure compliance with
quality standards and specifications. Elan, or its
duly appointed agent, shall have the right to inspect
the premises of Newco where the Product is manufactured,
held or stored, and Newco shall permit such inspection,
upon advance notice at any reasonable time, of the
methods and procedures used in the manufacture, storage
and sale of the Product. Newco shall not sell or
otherwise dispose of any Product under the Elan
Trademarks that fails to comply with the quality
standards and specifications referred to in this
Clause 3.2, as determined by Elan.
(2) Newco shall not use an Elan Trademark in any way
which might materially prejudice its distinctiveness
or validity or the goodwill of Elan therein.
(3) The parties recognize that the Elan Trademarks
have considerable goodwill associated therewith.
Newco shall not use in relation to the Products any
trademarks other than the Elan Trademarks (except the
Photogen Trademarks (as defined in the Photogen
License Agreement) licensed to Newco under the
Photogen License Agreement) without obtaining the
prior consent in writing of Elan, which consent may
not be unreasonably withheld. However, such use must
not conflict with the use and display of the Elan
Trademark and such use and display must be approved
by Elan.
(4) Newco shall not use in the Territory any
trademarks or trade names so resembling the Elan
Trademark as to be likely to cause confusion or
deception.
----------------
[****] REPRESENTS MATERIAL WHICH HAS BEEN
REDACTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT
PURSUANT TO RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF
1934, AS AMENDED.
(5) Newco shall promptly notify Elan in writing of any
alleged infringement or unauthorised use of which it
becomes aware by a third party of the Elan Trademarks
and provide Elan with any applicable evidence of
infringement or unauthorised use.
(6) Newco shall favourably consider promoting and using the
Elan Trademarks in each country of the Territory and
provide proof of such use upon request by Elan.
(7) Newco shall not be permitted to assign or sublicense any
of its rights under the Elan Trademarks without the prior
written consent of Elan, which consent shall not be
unreasonably withheld or delayed.
3.2.2 Elan shall, [****], file and prosecute applications to
register and maintain registrations of the Elan Trademarks
in the Territory. Newco shall reasonably cooperate with
Elan in such efforts. In the event Elan decides not to file
or prosecute such Elan Trademark, Newco may request Elan to
do the same at Newco's expense, and Elan shall file or
prosecute such Elan Trademark at Newco's request and
expense unless Elan believes such action is without merit.
3.2.3 Elan will be entitled to conduct all enforcement
proceedings relating to the Elan Trademarks and shall at
[****] discretion decide what action, if any, to take in
respect to any enforcement proceedings of the Elan
Trademarks or any other claim or counter-claim brought in
respect to the use or registration of the Elan Trademarks.
Any such proceedings shall be conducted at Elan's [****]
and for its own benefit. Newco and Photogen shall
reasonably cooperate with Elan in such efforts. In the
event Elan decides not to engage in enforcement proceedings
of the Elan Trademarks Newco may request Elan to do the
same at Newco's expense unless Elan believes the basis for
such enforcement proceedings is without merit. In such a
case, Elan shall have the sole discretion not to engage in
any such enforcement proceedings.
3.2.4 Newco shall promptly notify Elan in writing in the event
that any Elan Trademark has been challenged by a third
party in a judicial or administrative proceeding in a
country in the Territory as infringing on the rights of a
third party and Elan shall have the first right to decide
whether or not to defend such allegations, or to adopt an
alternative xxxx, or allow Newco to adopt an alternative
xxxx. If Elan decides not defend the Elan Trademark, then
Newco may request Elan to defend the Elan Trademark, at
Newco's expense, unless such requested defense is believed
by Elan to be unsubstantiated and without merit. In such a
case, Elan may elect not initiate defence proceedings.
----------------
[****] REPRESENTS MATERIAL WHICH HAS BEEN REDACTED PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
3.2.5 Save where Newco adopts its own xxxx under Clause 3.2.4,
Newco will have no ownership rights in respect of the Elan
Trademarks or of the goodwill associated therewith, and
Newco hereby acknowledges that, except as expressly
provided in this Agreement, it shall not acquire any rights
in respect thereof and that all such rights and goodwill
are, and will remain, vested in Elan.
3.2.6 Nothing in this Agreement shall be construed as a warranty
on the part of Elan regarding the Elan Trademarks,
including without limitation, that use of the Elan
Trademarks in the Territory will not infringe the rights of
any third parties. Accordingly, Newco acknowledges and
agrees that Elan makes no such warranty.
3.2.7 Elan assumes no liability to Newco or to any third parties
with respect to the quality, performance or characteristics
of any of the goods manufactured or sold by Newco under the
Elan Trademarks pursuant to this Agreement.
4 [****]/AFTER ACQUIRED TECHNOLOGY
4.1 [****]
[****]
[****]
4.2 If, after the Effective Date, Elan acquires know-how or patent
rights relating to the Field, or acquires or merges with a third party
entity that has know-how or patent rights relating to the Field, Elan
shall offer to license such know-how and patent rights to Newco
(subject to existing contractual obligations), on [****] terms on an
arm's length basis for a [****] period under the prevailing
circumstances.
If Newco determines that Newco should not acquire such license, Elan
shall be free to fully exploit such know-how and patent rights with the
Elan Intellectual Property then licensed to Newco, whether inside or
outside the Field, and to grant to third parties licenses and
sublicenses with respect thereto.
----------------
[****] REPRESENTS MATERIAL WHICH HAS BEEN REDACTED PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
5 FINANCIAL PROVISIONS
5.1 LICENSE FEE:
In consideration of the license by EPIL to Newco of the EPIL Patents
under Clause 2, Newco shall pay to EPIL a non-refundable license fee of
$15 million in cash (the "LICENSE FEE"), the receipt of which is hereby
acknowledged by EPIL.
The License Fee shall not be subject to future performance
obligations of Elan to Newco or Photogen and shall not be
applicable against future services provided by Elan to Newco
or Photogen.
5.2 MILESTONE PAYMENTS AND ROYALTIES:
Prior to the commercialization of the Products, the Management
Committee shall consider and if appropriate, determine reasonable
royalties and milestone payments with respect to the commercialization
of the Products by Newco that shall be payable by Newco to Elan and
Photogen, and shared by Elan and Photogen [****] with Elan's and
Photogen's [****] in Newco.
At such time, the Management Committee will agree to an appropriate
definition of "Net Sales" as such term is used in this Agreement.
5.3 Payment of any royalties pursuant to Clause 5.2 shall be made
quarterly in arrears during each Financial Year within 30 days after
the expiry of the calendar quarter. The method of payment shall be by
wire transfer to an account specified by Elan. Each payment made to
Elan shall be accompanied by a true accounting of all Products sold by
Newco's permitted sublicensees, if any, during such quarter.
Such accounting shall show, on a country-by-country and
Product-by-Product basis, Net Sales (and the calculation thereof) and
each calculation of royalties with respect thereto, including the
calculation of all adjustments and currency conversions.
5.4 Newco shall maintain and keep clear, detailed, complete, accurate
and separate records for a period of [****]:
5.4.1 to enable any royalties on Net Sales that shall have accrued
hereunder to be determined; and
5.4.2 to enable any deductions made in the Net Sales calculation to
be determined.
----------------
[****] REPRESENTS MATERIAL WHICH HAS BEEN REDACTED PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
5.5 All payments due hereunder shall be made in United States Dollars.
Payments due on Net Sales of any Product for each calendar quarter made
in a currency other than United States Dollars shall first be
calculated in the foreign currency and then converted to United States
Dollars on the basis of the exchange rate in effect on the last working
day for such quarter for the purchase of United States Dollars with
such foreign currency quoted in the Wall Street Journal (or comparable
publication if not quoted in the Wall Street Journal) with respect to
the currency of the country of origin of such payment, determined by
averaging the rates so quoted on each business day of such quarter.
5.6 If, at any time, legal restrictions in the Territory prevent the
prompt payment when due of royalties or any portion thereof, the
Parties shall meet to discuss suitable and reasonable alternative
methods of paying Elan the amount of such royalties. In the event that
Newco is prevented from making any payment under this Agreement by
virtue of the statutes, laws, codes or government regulations of the
country from which the payment is to be made, then such payments may be
paid by depositing them in the currency in which they accrue to Elan's
account in a bank acceptable to Elan in the country the currency of
which is involved or as otherwise agreed by the Parties.
5.7 Elan and Newco agree to co-operate in all respects necessary to
take advantage of any double taxation agreements or similar agreements
as may, from time to time, be available.
5.8 Any taxes payable by Elan on any payment made to Elan pursuant to
this Agreement shall be for the account of Elan. If so required by
applicable law, any payment made pursuant to this Agreement shall be
made by Newco after deduction of the appropriate withholding tax, in
which event the Parties shall co-operate to obtain the appropriate tax
clearance as soon as is practicable. On receipt of such clearance,
Newco shall forthwith arrange payment to Elan of the amount so
withheld.
6 RIGHT OF INSPECTION AND AUDIT
6.1 [****] during each Financial Year, or more often not to exceed
quarterly as reasonably requested by Elan, Newco shall permit Elan or
its duly authorised representatives, upon reasonable notice and at any
reasonable time during normal business hours, to have access to inspect
and audit the accounts and records of Newco and any other book, record,
voucher, receipt or invoice relating to the calculation of the royalty
payments on Net Sales submitted to Elan.
Any such inspection of Newco's records shall be at the expense of Elan,
except that if any such inspection reveals a deficiency in the amount
of the royalty actually paid to Elan
----------------
[****] REPRESENTS MATERIAL WHICH HAS BEEN
REDACTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT
TO RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
hereunder in any Financial Year quarter of [****]% or more of
the amount of any royalty actually due to Elan hereunder, then
the expense of such inspection shall be borne [****] by Newco.
Any amount of deficiency shall be paid promptly to Elan by
Newco.
If such inspection reveals a surplus in the amount of royalties
actually paid to Elan by Newco, Elan shall reimburse Newco the surplus
within [****] days after determination.
6.2 In the event of any unresolved dispute regarding any alleged
deficiency or overpayment of royalty payments hereunder, the matter
will be referred to an independent firm of chartered or public
accountants chosen by agreement of Photogen and Elan for a resolution
of such dispute. Any decision by the said firm of chartered accountants
shall be binding on the Parties.
7 REPRESENTATIONS AND WARRANTIES
7.1 Elan represents and warrants to Newco and Photogen, as of the date
of the letter agreement and will so represent and warrant as of the
Effective Date, as set forth below:
7.1.1 Elan has the right to grant the Elan License;
7.1.2 there are no agreements between Elan and any third parties
that conflict with the Elan License.
7.2 In addition to any other indemnities provided for herein, Elan
shall indemnify and hold harmless Newco and its Affiliates and their
respective employees, agents, officers and directors from and against
any claims, losses, liabilities or damages (including reasonable
attorney's fees and expenses) incurred or sustained by Newco arising
out of or in connection with any:
7.2.1 breach of any representation, covenant, warranty or obligation
by Elan hereunder; or
7.2.2 act or omission on the part of Elan or any of its respective
employees, agents, officers and directors in the performance
of this Agreement.
7.3 In addition to any other indemnities provided for herein, Newco
shall indemnify and hold harmless Elan and its Affiliates and their
respective employees, agents, officers and directors from and against
any claims, losses, liabilities or damages (including reasonable
attorney's fees and expenses) incurred or sustained by Elan arising out
of or in connection with any:
----------------
[****] REPRESENTS MATERIAL WHICH HAS BEEN REDACTED PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
7.3.1 breach of any representation, covenant, warranty or obligation
by Newco hereunder; or
7.3.2 act or omission on the part of Newco or any of its agents or
employees in the performance of this Agreement.
7.4 The Party seeking an indemnity shall:
7.4.1 fully and promptly notify the other Party of any claim or
proceeding, or threatened claim or proceeding;
7.4.2 permit the indemnifying Party to take full care and control of
such claim or proceeding;
7.4.3 co-operate in the investigation and defence of such claim or
proceeding;
7.4.4 not compromise or otherwise settle any such claim or
proceeding without the prior written consent of the other
Party, which consent shall not be unreasonably withheld
conditioned or delayed; and
7.4.5 take all reasonable steps to mitigate any loss or liability in
respect of any such claim or proceeding.
7.5 EXCEPT AS SET FORTH IN THIS CLAUSE 7, ELAN IS GRANTING THE LICENSE
HEREUNDER ON AN "AS IS" BASIS WITHOUT REPRESENTATION OR WARRANTY
WHETHER EXPRESS OR IMPLIED INCLUDING WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE, OR INFRINGEMENT OF THIRD PARTY
RIGHTS, AND ALL SUCH WARRANTIES ARE EXPRESSLY DISCLAIMED.
7.6 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, ELAN
AND NEWCO SHALL NOT BE LIABLE TO THE OTHER BY REASON OF ANY
REPRESENTATION OR WARRANTY, CONDITION OR OTHER TERM OR ANY DUTY OF
COMMON LAW, OR UNDER THE EXPRESS TERMS OF THIS AGREEMENT, FOR ANY
CONSEQUENTIAL, SPECIAL OR INCIDENTAL OR PUNITIVE LOSS OR DAMAGE
(WHETHER FOR LOSS OF PROFITS OR OTHERWISE) AND WHETHER OCCASIONED BY
THE NEGLIGENCE OF THE RESPECTIVE PARTIES, THEIR EMPLOYEES OR AGENTS OR
OTHERWISE.
8. TERM AND TERMINATION
8.1 The term of this Agreement shall commence as of the Effective Date
and shall, subject to the rights of termination outlined in this Clause
8, expire on a Product-by-Product basis and on a country-by-country
basis on the last to occur of:
8.1.1 [****] years starting from the date of the launch of the
Product in the country concerned; or
7.0.2 the date of expiration of the last to expire of the
patents included in the Elan Patents and the Elan Improvements
and/or the Photogen Patents and the Photogen Improvements.
("THE TERM")
8.2 If either Party commits a Relevant Event, the other Party shall
have, in addition to all other legal and equitable rights and remedies
hereunder, the right to terminate this Agreement upon 30 days' prior
written notice to the defaulting Party.
8.3 For the purpose of this Clause 8, a "RELEVANT EVENT" is committed
or suffered by a Party if:
8.3.1 it commits a material breach of its obligations under
this Agreement and fails to remedy it within 60 days of being
specifically required in writing to do so by the other Party;
provided, that if the breaching Party has proposed a course of
action to rectify the breach and is acting in good faith to
rectify same but has not cured the breach by the 60th day,
such period shall be extended by such period as is reasonably
necessary to permit the breach to be rectified;
8.3.2 a distress, execution, sequestration or other process is
levied or enforced upon or sued out against a material part of
its property which is not discharged or challenged within 30
days;
8.3.3 it is unable to pay its debts in the normal course of
business;
8.3.4 it ceases wholly or substantially to carry on its
business, otherwise than for the purpose of a reconstruction
or amalgamation, without the prior written consent of the
other Party (such consent not to be unreasonably withheld);
8.3.5 the appointment of a liquidator, receiver,
administrator, examiner, trustee or similar officer of such
Party or over all or substantially all of its assets under the
law of any applicable jurisdiction, including without
limitation, the United States of America, Bermuda or Ireland;
----------------
[****] REPRESENTS MATERIAL WHICH HAS BEEN REDACTED PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
8.3.6 an application or petition for bankruptcy, corporate
re-organisation, composition, administration, examination,
arrangement or any other procedure similar to any of the
foregoing under the law of any applicable jurisdiction,
including without limitation, the United States of America,
Bermuda or Ireland, is filed, and is not discharged within
60 days, or a Party applies for or consents to the
appointment of a receiver, administrator, examiner or
similar officer of it or of all or a material part of its
assets, rights or revenues or the assets and/or the
business of a Party are for any reason seized, confiscated
or condemned.
8.4 Elan shall be entitled to forthwith terminate this Agreement in the
event of a Change of Control of Photogen/Newco.
8.5 Upon expiration or termination of the Agreement:
8.5.1. any sums that were due from Newco to Elan on Net Sales
in the Territory or in such particular country or countries in
the Territory (as the case may be) prior to the expiration or
termination of this Agreement as set forth herein shall be
paid in full within 60 days after the expiration or
termination of this Agreement for the Territory or for such
particular country or countries in the Territory (as the case
may be);
8.5.2 any provisions that expressly survive termination or
expiration of this Agreement, including without limitation
this Clause 8, shall remain in full force and effect;
8.5.3 all representations, warranties and indemnities shall insofar
as are appropriate remain in full force and effect;
8.5.4 the rights of inspection and audit set out in Clause 6 shall
continue in force for a period of one year; and
8.5.5 all rights and licenses granted pursuant to this
Agreement and to the Elan Intellectual Property pursuant to
the JDOA (including the rights of Newco pursuant to Clause 11
of the JDOA) shall cease for the Territory or for such
particular country or countries in the Territory (as the case
may be) and shall revert to or be transferred to Elan, and
Newco shall not thereafter use in the Territory or in such
particular country or countries in the Territory (as the case
may be) any rights covered by this Agreement;
8.5.6 subject to Clause 8.5.7 and to such license, if any,
granted by Newco to Elan pursuant to the provisions of
Clause 12 of the JDOA, all rights to Newco Intellectual
Property shall be transferred to and jointly owned by
Photogen and Elan and may be exploited by both Elan and
Photogen separately pursuant to a perpetual[****],
world-wide fully paid license granted to each of Elan and
Photogen with the right to sublicense;
8.5.7 the rights of permitted third party sub-licensees in and to
the Elan Intellectual Property shall survive the
termination of the license and sublicense agreements
granting said intellectual property rights to Newco; and
Newco, Elan and Photogen shall in good faith agree upon the
form most advantageous to Elan and Photogen in which the
rights of Newco under any such licenses and sublicenses are
to be held (which form may include continuation of Newco
solely as the holder of such licenses or assignment of such
rights to a third party or parties, including an assignment
to both Elan and Photogen).
Any sublicense agreement between Newco and such permitted
sublicensee shall permit an assignment of rights by Newco and
shall contain appropriate confidentiality provisions.
9 CONFIDENTIAL INFORMATION
9.1 The Parties agree that it will be necessary, from time to time, to
disclose to each other confidential and proprietary information,
including without limitation, inventions, works of authorship, trade
secrets, specifications, designs, data, know-how and other proprietary
information relating to the Field, the Products, processes, services
and business of the disclosing Party.
The foregoing shall be referred to collectively as "CONFIDENTIAL
INFORMATION".
9.2 Any Confidential Information disclosed by one Party to another Party
shall be used by the receiving Party exclusively for the purposes of
fulfilling the receiving Party's obligations under this Agreement and
the JDOA and for no other purpose.
9.3 Each Party shall disclose Confidential Information of the other Party
only to those employees, representatives and agents requiring knowledge
thereof in connection with fulfilling the Party's obligations under
this Agreement. Each Party further agrees to inform all such employees,
representatives and agents of the terms and provisions of this
Agreement and their duties hereunder and to obtain their agreement
hereto as a condition of receiving Confidential Information. Each Party
shall exercise the same standard of care as it would itself exercise in
relation to its own confidential information (but in no
----------------
[****] REPRESENTS MATERIAL WHICH HAS BEEN REDACTED PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
event less than a reasonable standard of care) to protect and
preserve the proprietary and confidential nature of the Confidential
Information disclosed to it by the other Party. Each Party shall,
upon request of the other Party, return all documents and any copies
thereof containing Confidential Information belonging to, or
disclosed by, such other Party.
9.4 Any breach of this Clause 9 by any person informed by one
of the Parties is considered a breach by the Party itself.
9.5 Confidential Information shall not be deemed to include:
9.5.1 information that is in the public domain;
9.5.2 information which is made public through no breach
of this Agreement;
9.5.3 information which is independently developed by a
Party as evidenced by such Party's records;
9.5.4 information that becomes available to a Party on a
non-confidential basis, whether directly or indirectly,
from a source other than a Party, which source did not
acquire this information on a confidential basis; or
9.5.5 information which the receiving Party is required to
disclose pursuant to:
(i) a valid order of a court or other governmental
body; or
(ii) any other requirement of law;
provided that if the receiving Party becomes legally
required to disclose any Confidential Information,
the receiving Party shall give the disclosing Party
prompt notice of such fact so that the disclosing
Party may obtain a protective order or other
appropriate remedy concerning any such disclosure.
The receiving Party shall fully co-operate with the
disclosing Party in connection with the disclosing
Party's efforts to obtain any such order or other
remedy. If any such order or other remedy does not
fully preclude disclosure, the receiving Party shall
make such disclosure only to the extent that such
disclosure is legally required.
9.6 The provisions relating to confidentiality in this Clause 9 shall
remain in effect during the term of this Agreement, and for a
period of [****] following the expiration or earlier termination
of this Agreement.
----------------
[****] REPRESENTS MATERIAL WHICH HAS BEEN REDACTED PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
9.7 The Parties agree that the obligations of this Clause 9
are necessary and reasonable in order to protect the Parties'
respective businesses, and each Party agrees that monetary
damages would be inadequate to compensate a Party for any
breach by the other Party of its covenants and agreements set
forth herein.
Accordingly, the Parties agree that any such violation or
threatened violation shall cause irreparable injury to a Party
and that, in addition to any other remedies that may be
available, in law and equity or otherwise, each Party shall be
entitled to obtain injunctive relief against the threatened
breach of the provisions of this Clause 9, or a continuation of
any such breach by the other Party, specific performance and
other equitable relief to redress such breach together with its
damages and reasonable counsel fees and expenses to enforce its
rights hereunder, without the necessity of proving actual or
express damages.
9.8 For the avoidance of doubt, all confidential information of Newco
received by Elan hereunder shall not be disclosed by Elan to
Affiliates and/or subsidiaries (present or future) of Elan
Corporation, Plc. within the division of Elan Corporation, Plc.
carrying on business as Elan Pharmaceuticals which
incorporates, inter alia, Targon Corporation, Athena
Neurosciences, Inc., Elan Pharmaceuticals, Inc., Elan
Diagnostics, Carnrick Laboratories, and Elan Europe Limited.
10 GOVERNING LAW AND ARBITRATION
10.1 This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
10.2 The Parties will attempt in good faith to resolve any dispute
arising out of or relating to this Agreement promptly by negotiation
between executives of the Parties. In the event that such
negotiations do not result in a mutually acceptable resolution, the
Parties agree to consider other dispute resolution mechanisms
including mediation.
In the event that the Parties fail to agree on a mutually
acceptable dispute resolution mechanism within 180 days of written
notice of a dispute by one Party to the other Party, any such dispute
shall be finally settled by arbitration pursuant to Clause 10.3.
10.3 Save any dispute under Clause 6.2 which will be resolved in
accordance with the provisions of Clause 6.2, any dispute under this
Agreement which is not settled by mutual consent under Clause 10.2
shall be finally settled by binding arbitration, conducted in
accordance with the Commercial Arbitration Rules of the American
Arbitration Association by one arbitrator appointed in accordance
with said rules. Such arbitrator shall be reasonably satisfactory to
each of the Parties; provided, that if the Parties are unable to
agree upon the identity of such arbitrator within 15 days of demand
by either Party, then either Party shall have the right to petition a
presiding justice of the Supreme Court of New York, New York County,
to appoint an arbitrator.
The arbitration shall be held in New York, New York.
The arbitrator shall determine what discovery will be permitted,
consistent with the goal of limiting the cost and time which the
Parties must expend for discovery; provided the arbitrator shall
permit such discovery as he deems necessary to permit an equitable
resolution of the dispute.
Any written evidence originally in a language other than English
shall be submitted in English translation accompanied by the original
or a true copy thereof.
The costs of the arbitration, including administrative and
arbitrator's fee, shall be shared equally by the Parties and each
Party shall bear its own costs and attorneys' and witness' fees
incurred in connection with the arbitration.
In rendering judgement, the arbitrator shall be instructed by the
Parties that he shall be permitted to select solely from between the
proposals for resolution of the relevant issue presented by each
Party, and not any other proposal.
A disputed performance or suspended performances pending the
resolution of the arbitration must be completed within 30 days
following the final decision of the arbitrator or such other
reasonable period as the arbitrator determines in a written order.
The Parties will co-operate and use reasonable efforts to ensure that
any arbitration any arbitration hereunder shall be completed swiftly
and in any event within one year from the filing of notice of a
request for such arbitration.
The arbitration proceedings and the decision shall not be made public
without the joint consent of the Parties and each Party shall
maintain the confidentiality of such proceedings and decision unless
otherwise permitted by the other Party.
The Parties agree that the decision shall be the sole, exclusive and
binding remedy between them regarding any and all disputes,
controversies, claims and counterclaims presented to the arbitrator.
Application may be made to any court having jurisdiction over the
Party (or its assets) against whom the decision is rendered for a
judicial recognition of the decision and an order of enforcement.
11 IMPOSSIBILITY OF PERFORMANCE - FORCE MAJEURE
Neither Elan nor Newco shall be liable for delay in the performance
of any of its obligations hereunder if such delay results from causes
beyond its reasonable control, including, without limitation, acts of
God, fires, strikes, acts of war, intervention of a government
authority, but any
such delay or failure shall be remedied by such Party as
soon as practicable.
12 ASSIGNMENT
This Agreement may not be assigned by either Party without the prior
written consent of the other, save that either Party may assign this
Agreement to its Affiliates or subsidiaries without such prior
written consent and that Elan may assign this Agreement to any
off-balance sheet special purpose entity established by Elan or EIS
without such prior written consent; provided that such assignment
does not have any adverse tax consequences on the other Party and
that the assignee shall be obligated to the other Party for all of
the assignor Party's obligations hereunder which assignee shall be
capable of fulfilling such obligations.
13 NOTICES
13.1 Any notice to be given under this Agreement shall be sent in
writing in English by registered airmail or telefaxed to the
following addresses:
If to Newco at:
Xxxxxxxxx Xxxxx,
0 Xxxxxx Xxxxxx,
Xxxxxxxx,
Xxxxxxx
Xxxxxxxxx: Secretary
Telephone: 000 000 0000
Fax: 000 000 0000
with a copy to Elan at:
Elan Corporation, plc
Xxxxxxx Xxxxx,
Xxxxxxx Xxxxx,
Xxxxxx 0,
Xxxxxxx.
Attention: Vice President, General Counsel,
Elan Pharmaceutical Technologies,
a division of Elan Corporation, plc
Telephone: + 000 0 000 0000
Telefax: + 353 1 709 4124
If to Photogen at:
0000 Xxx Xxxxx,
Xxxxxxxxx,
XX. 0000
XXX.
Attn: Chief Executive Officer
Telephone 000 000 000 0000
Fax: 000 000 000 0000
with a copy to:
Xxxxxx & Xxxxx
Suite 3600
000 Xxxx Xxxxxx
Xxxxxxx
Xxxxxxxx 00000
XXX
Attention: Xxxxxxxx X Xxxxxx
Telephone 000 000 000 0000
Fax: 000 000 000 0000
If to Elan at:
Elan Corporation, plc
Xxxxxxx Xxxxx,
Xxxxxxx Xxxxx,
Xxxxxx 0,
Xxxxxxx.
Attention: Vice President, General Counsel,
Elan Pharmaceutical Technologies,
a division of Elan Corporation, plc
Telephone: + 000 0 000 0000
Telefax: + 353 1 709 4124
or to such other address(es) and telefax numbers as may from
time to time be notified by either Party to the other hereunder.
13.2 Any notice sent by mail shall be deemed to have been
delivered within seven 7 working days after dispatch and any
notice sent by telex or telefax shall be deemed to have been
delivered within twenty 24 hours of the time of the dispatch.
Notice of change of address shall be effective upon receipt.
14 MISCELLANEOUS
14.1 WAIVER:
No waiver of any right under this Agreement shall be deemed
effective unless contained in a written document signed by the Party
charged with such waiver, and no waiver of any breach or failure to
perform shall be deemed to be a waiver of any other breach or
failure to perform or of any other right arising under this Agreement.
14.2 SEVERABILITY:
If any provision in this Agreement is agreed by the Parties to be,
or is deemed to be, or becomes invalid, illegal, void or
unenforceable under any law that is applicable hereto:
14.2.1 such provision will be deemed amended to conform to
applicable laws so as to be valid and enforceable; or
14.2.2 if it cannot be so amended without materially altering
the intention of the Parties, it will be deleted, with
effect from the date of such agreement or such earlier
date as the Parties may agree, and the validity, legality
and enforceability of the remaining provisions of this
Agreement shall not be impaired or affected in any way.
14.3 FURTHER ASSURANCES:
At the request of any of the Parties, the other Party or Parties shall
(and shall use reasonable efforts to procure that any other necessary
parties shall) execute and perform all such documents, acts and things
as may reasonably be required subsequent to the signing of this
Agreement for assuring to or vesting in the requesting Party the full
benefit of the terms hereof.
14.4 SUCCESSORS:
This Agreement shall be binding upon and enure to the benefit of the
Parties hereto, their successors and permitted assigns.
14.5 NO EFFECT ON OTHER AGREEMENTS/CONFLICT:
No provision of this Agreement shall be construed so as to negate,
modify or affect in any way the provisions of any other agreement
between the Parties unless specifically referred to, and solely to the
extent provided herein.
In the event of a conflict between the provisions of this Agreement and
the provisions of the JDOA, the terms of the JDOA shall prevail unless
this Agreement specifically provides otherwise.
14.6 AMENDMENTS:
No amendment, modification or addition hereto shall be effective or
binding on any Party unless set forth in writing after the Effective
Date and executed by a duly authorised representative of each Party.
14.7 COUNTERPARTS:
This Agreement may be executed in any number of counterparts, each of
which when so executed shall be deemed to be an original and all of
which when taken together shall constitute this Agreement.
14.8 GOOD FAITH:
Each Party undertakes to do all things reasonably within its power
which are necessary or desirable to give effect to the spirit and
intent of this Agreement.
14.9 NO RELIANCE:
Each Party hereby acknowledges that in entering into this Agreement it
has not relied on any representation or warranty save as expressly set
out herein or in any document referred to herein.
14.10 RELATIONSHIP OF THE PARTIES:
Nothing contained in this Agreement is intended or is to be construed
to constitute Elan and Newco as partners, or Elan as an employee of
Newco, or Newco as an employee of Elan.
Neither Party hereto shall have any express or implied right or
authority to assume or create any obligations on behalf of or in the
name of the other Party or to bind the other Party to any contract,
agreement or undertaking with any third party.
SCHEDULE 1
ELAN PATENTS AND ELAN KNOW-HOW
REPRESENTATIVE ELAN PATENTS
[****]
ELAN KNOW-HOW
[****]
----------------
[****] REPRESENTS MATERIAL WHICH HAS BEEN REDACTED PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
SCHEDULE 2
TECHNOLOGICAL COMPETITIORS OF ELAN
[****]
(including any and all divisions or subsidiaries of such entities and
successor entities).
----------------
[****] REPRESENTS MATERIAL WHICH HAS BEEN REDACTED PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
IN WITNESS WHEREOF the Parties hereto have executed this Agreement.
SIGNED BY /s/ Xxxxx Xxxxxx
-----------------------------------------
for and on behalf of
ELAN PHARMA INTERNATIONAL LIMITED
SIGNED BY /s/ Xxxx Xxxxxx
------------------------------------------
for and on behalf of
PHOTOGEN NEWCO LTD.
AGREED TO AND ACCEPTED BY
PHOTOGEN TECHNOLOGIES, INC /s/ Xxxx Xxxxxx
