EXHIBIT 10.3
DATED MARCH 13, 1998
PEPTIDE THERAPEUTICS LIMITED
and
PEPTIMMUNE INC.
COLLABORATION AGREEMENT
1
THIS AGREEMENT is made on March 13, 1998
BETWEEN:
(1) PEPTIDE THERAPEUTICS LIMITED, a company incorporated in England and Wales
(registered no.2774777), whose registered office is at 000 Xxxxxxxxx
Xxxxxxx Xxxx, Xxxxxx Xxxx, Xxxxxxxxx XX0 0XX ("PT"); and
(2) PEPTIMMUNE INC., a company incorporated in Delaware whose registered
office is at 000 Xxxxxxxx Xxxxx, Xxxxxxxxx, XX 00000-0000 XXX ("PI"),
together referred to as "the Parties".
WHEREAS:
(A) PT has developed the RAPiD(TM) (Rational Approach to Protease Inhibitor
Design) technology to enable the RAPiD development of protease inhibitors;
(B) PI has determined that inhibition of Cathepsin S is a suitable way to
suppress the class II MHC-associated immune response in mammals.
Inhibition of Cathepsin S is therefore considered an appropriate method
for the treatment of autoimmune diseases, allergic responses and organ
transplant or tissue graft rejection. A patent application in this field
has been submitted by the Massachusetts Institute of Technology ("MIT").
PI is the exclusive licensee under an Agreement with MIT dated May 5,
1997, and as amended March 13,1998, a copy of which is attached at
Schedule 3 (the "MIT Agreement"). []*
(C) PT and PI have agreed to establish a collaboration to use RAPiD(TM) to
develop inhibitors for Cathepsin S and to commercialise these inhibitors.
THIS AGREEMENT WITNESSES as follows:
1. INTERPRETATION
1.1. In this Agreement:
"Affiliate" means any company or other entity which directly or
indirectly owns, is owned by or is under common
ownership with a Party to this Agreement to the
extent of at least fifty percent (50%) of the
equity (or such lesser percentage which is the
maximum allowed to be owned by a foreign
corporation in a
----------
* This portion of the Exhibit has been omitted pursuant to a request for
Confidential Treatment under Rule 406 of the Securities Act of 1933, as
amended. The Complete Exhibit, including the portions for which confidential
treatment has been requested, has been filed separately with the Securities
and Exchange Commission.
2
particular jurisdiction) having the power to vote
on or direct the affairs of the entity and any
person, firm, company or other entity actually
controlled by, controlling or under common control
with a Party to this Agreement.
"Effective Date" means the date of execution of this Agreement.
"Field" means Cathepsin S inhibitors for use in the
treatment of autoimmune and allergic diseases and
to prevent organ transplant and tissue graft
rejection.
"Intellectual means patents, patent applications, trade marks,
Property" service marks, registered designs, applications for
any of the foregoing; trade and business names,
unregistered trade marks and service marks,
copyrights, rights in designs, Inventions, rights
under licences, consents, orders, statutes or
otherwise howsoever in relation to any such rights,
and rights of the same or similar effect or nature,
in any part of the world.
"Invention" means innovative patentable subject matter and
shall include both subject matter capable of such
exploitation under intellectual property rights and
subject matter capable of such exploitation by
reasons of its confidential nature and, without
prejudice to the generality of the foregoing, the
said expression shall include computer software,
biological material and plant varieties.
"Inventors" means persons who devise Inventions and shall
include both authors of computer software and
authors of any copyright material relevant to an
Invention.
"Know-How" means all non-patentable technical and scientific
information necessary or useful in practising PI
Rights or PT Rights not at present in the public
domain held in any form (including, without
limitation, that comprised in or derived from
drawings, data, formulae, specifications, notes,
chemical compounds, computer software, component
lists, instructions, manuals, technical brochures,
catalogues and process descriptions).
3
"PI Rights" all rights in any Intellectual Property or
Know-how owned or controlled by or at the free
disposal of PI, other than the MIT Agreement, or
any Affiliate of PI at the date of this Agreement
which relate to Cathepsin S and the Project.
"Project" means the programme of research and development to
be carried out by PT and PI as more particularly
described in the Work Programme.
"Project Rights" means rights in any Inventions, Intellectual
Property or Know How within the Field arising from
the Project or work done on or in connection with
the Project. For avoidance of doubt, Project Rights
shall not include PT Rights or PI Rights.
"PT Rights" all rights in any Intellectual Property or Know-how
owned or controlled by or at the free disposal of
PT or any Affiliate of PT at the date of this
Agreement and relating to RAPiD(TM) and its
associated technologies which relate to the
Project.
"Revenue" means all consideration actually received net of
any and all royalties, milestone, licence fee and
other similar payments for patent and or
intellectual property use rights necessary to the
commercialisation of the Project Rights payable to
third parties, who are not Affiliates, by either or
both of the Parties from third parties which result
from the commercialisation of the Project Rights
(including without limitation development funds,
payments for options for licences, paid up
licences, stage payments under licences, milestone
payments and royalties). The payment of
consideration in the form of anything other than
cash payments shall only be permitted with the
express written consent of both Parties unless one
of the Parties is no longer a Party to this
Agreement.
"Work Programme" means the programme of work as set out at Schedule
1.
1.2. In this Agreement, a statutory provision includes a reference to:
1.2.1 (a) the statutory provision as modified or re-enacted or both from
time to
4
time before the date of this Agreement; and
(b) any subordinate legislation made under the statutory provision
before the date of this Agreement;
1.2.2 persons includes a reference to any body corporate, unincorporated
association or partnership;
1.2.3 a person includes a reference to that person's legal personal
representatives, successors and permitted assigns;
1.2.4 a Clause or Schedule, unless the context otherwise requires, is a
reference to a clause of or schedule to this Agreement and the
Schedules shall form an integral part of this Agreement;
1.3. The headings in this Agreement shall not affect the interpretation of this
Agreement.
2. THE PROJECT
2.1. The Parties shall diligently carry out the Project and shall procure that
the Project is carried out by suitably qualified staff.
2.2. Neither Party shall sub-contract any work on the Project without the prior
written consent of the other Party. As at the Effective Date, it is agreed
that PI will subcontract all animal studies necessary to establish
biological proof-of-principle as identified in Clause 2.5.
2.3. PT and PI shall set up a Project Management Team. This team will consist
of both scientific and commercial representatives of both PT and PI. The
role of the Project Management Team shall be to co-ordinate the
collaboration and to manage the day-to-day running of the Project. The
Project Management Team shall not go beyond the limits of the Project as
set out in this Agreement and shall have no authority to bind the Parties
with respect to any obligations to third parties nor to incur any costs
beyond those contained in budgets approved by the Parties without the
prior written agreement of the Parties.
2.4. Within one month of the Effective Date the Project Management Team shall
meet and shall agree to the major milestones of the Project together with
the time limits and budgets for achievement of these milestones. If the
Parties are unable to reach such agreement within 30 days then the
Agreement shall terminate.
5
2.5. The Project will aim to illustrate []*
2.6. PT and PI shall each provide research reports to each other on a monthly
basis. These reports shall detail progress made in the Project in the
previous month. The Project Management Team shall meet at least every
three months to review progress of the Project and to determine strategy
for the development of the Project.
2.7. Each Party shall bear its own costs for its part in the Project. Each
Party shall keep account of its costs on the basis defined at Schedule 2
hereto and shall produce an accounting on a quarterly basis. It is the
intent of the Parties that each Party shall bear approximately 50% of the
costs of the Project.
2.8. For the avoidance of doubt, all persons employed or appointed as
subcontractors or agents by either Party on the Project, shall remain the
sole responsibility of that Party and that Party shall remain liable for
the payment of the salaries and fees (and all taxation and other
contributions payable thereon) of such persons.
2.9. Neither Party shall work on the development of inhibitors of Cathepsin S
in collaboration with or at the request of or on behalf of any third party
until termination of this Agreement.
3. TERMINATION
3.1. Either Party (the "Initiating Party") may terminate this Agreement with
immediate effect by notice in writing to the other Party (the "Defaulting
Party") on or at any time after the occurrence of any of the events
specified in Clause 3.2 in relation to the Defaulting Party.
----------
* This portion of the Exhibit has been omitted pursuant to a request for
Confidential Treatment under Rule 406 of the Securities Act of 1933, as
amended. The Complete Exhibit, including the portions for which confidential
treatment has been requested, has been filed separately with the Securities
and Exchange Commission.
6
3.2. The events are:
3.2.1 a material breach by the Defaulting Party of any of its material
obligations under this Agreement which (if the breach is capable of
remedy) the Defaulting Party has failed to remedy within 120 days
after receipt of notice in writing from the Initiating Party
identifying the breach and requiring the Defaulting Party to remedy
the breach; or
3.2.2 the passing by the Defaulting Party of a resolution (or similar) for
its winding-up or the making by a court of competent jurisdiction of
an order (or similar) for the winding-up of the Defaulting Party or
the dissolution of the Defaulting Party (other than for the purposes
of corporate restructuring); or
3.2.3 the making of an administration order (or similar) in relation to
the Defaulting Party or the appointment of a receiver (or similar
officer) over, or the taking of possession or sale by an
encumbrancer of, any of the Defaulting Party's assets; or
3.2.4 the Defaulting Party making an arrangement or composition with its
creditors generally or making an application to a court of competent
jurisdiction for protection from its creditors generally; or
3.2.5 the Defaulting Party ceasing, or threatening to cease, to carry on
all or substantially all of its business activities.
4. CONSEQUENCES OF TERMINATION
4.1. All rights and obligations of the Parties shall cease to have effect
immediately upon termination of this Agreement except that termination
shall not affect:
4.1.1 the accrued rights and obligations of the Parties at the date of
termination; and
4.1.2 the continued existence and validity of the rights and obligations
of the Parties under Clauses 4.3, 4.4, 4.5, 6.1, 6.2, 6.5, 6.6, 6.9,
6.14, and 7 and the provisions set out in Schedule 1 and any
provisions of this Agreement necessary for the interpretation or
enforcement of this Agreement
and if termination of this Agreement is pursuant to Clause 3.2 above then
the Party not in breach shall be free to continue the Project alone or
with a third party and the Defaulting Party shall automatically assign its
rights in the Project Rights to the other Party at no cost and shall grant
to the other Party perpetual, royalty free, non-exclusive licences (with
rights to sub-license) to PI Rights (where PI is
7
the Defaulting Party) or to PT Rights (where PT is the Defaulting Party).
4.2. If the Parties agree that the objectives of the Project cannot be met
within the agreed timescale referred to in Clause 2.5 of this Agreement or
the objectives of the Project have not been met within 24 months of the
Effective Date then this Agreement shall immediately terminate.
4.2.1 PT shall own all PT Rights and Project Rights which are improvements
to or extensions of RAPiD including compound libraries.
4.2.2 PI shall own all PI Rights and Project Rights which are improvements
to or extensions of PI Rights.
4.2.3 Any Inventions and Intellectual Property related to pharmacophores,
compounds and inhibitors of Cathepsin S generated as a result of the
Project shall be jointly assigned to PT and PI pursuant to Clause 6.
4.3. In the event of the termination of this Agreement, other than pursuant to
Clause 2.4 or 4.2, then the Defaulting Party shall receive a percentage
share of any Revenue generated by the other Party such a share being
calculated on the following basis:
4.3.1 If the Agreement is terminated prior to the first anniversary of the
Effective Date, then the Defaulting Party's share shall be []*
4.3.2 If the Agreement is terminated after the first anniversary of the
Effective Date but before any Cathepsin S inhibitors undergo
toxicology studies then the Defaulting Party's share shall be []*
4.3.3 if the Agreement is terminated after one or more Cathepsin S
inhibitors has entered toxicology studies but before approval to
begin human clinical studies then the Defaulting Party's share shall
be []*
4.3.4 if the Agreement is terminated after one or more Cathepsin S
inhibitors receives approval to begin human clinical studies then
the Defaulting Party's share shall be []*
The Defaulting Party will continue to receive such a Revenue share for the
period of []*
4.4. If this Agreement is terminated otherwise than pursuant to Clause 2.4.
or 4.2. and PI is the Defaulting Party, (a) PI hereby grants to PT
effective on termination of this Agreement an exclusive sub-license in
the Field to the MIT Agreement as amended and attached hereto as
Schedule 3, and (b) PI agrees to not compete with PT in the Field for a
period of one (1) year following the termination of this Agreement.
----------
* This portion of the Exhibit has been omitted pursuant to a request for
Confidential Treatment under Rule 406 of the Securities Act of 1933, as
amended. The Complete Exhibit, including the portions for which confidential
treatment has been requested, has been filed separately with the Securities
and Exchange Commission.
8
4.5 In the case of PT being the Defaulting Party, PT agrees not compete with
PI in the Field for a period of one (1) year following the termination of
the Agreement.
5. WARRANTIES AND UNDERTAKINGS
5.1. PI hereby represents, warrants and undertakes to PT that:
5.1.1 All of PI's employees are subject to strict confidentiality
obligations and all discoveries, Inventions and Intellectual
Property made by employees during the course of his/her employment
by PI are owned absolutely by PI;
5.1.2 The terms of all contracts for the provision of services to PI by
independent contractors contain provisions whereby the contractor is
subject to strict confidentiality obligations and all discoveries,
Inventions and Intellectual Property in the Field made by the
independent contractor in performing the service contracted for are
owned absolutely by PI []*;
5.1.3 PI shall, at the Effective Date, have obtained all necessary
consents and permissions from MIT as may be required under the MIT
Agreement in order for PI to be able to enter into and perform its
obligations under this Agreement and sub-license PI Rights to PT and
to any third parties;
5.1.4 at the Effective Date PI is not aware of any royalties or other
payments which are or may become payable to third parties in respect
of the PI Rights with the exception of the MIT Agreement.
5.2. PT hereby represents, warrants and undertakes to PI that:
5.2.1 the employment contracts of all of PI's employees contain provisions
whereby the employee is subject to strict confidentiality
obligations and all discoveries, Inventions and Intellectual
Property made by the employee during the course of his/her
employment by PT are owned absolutely by PT;
5.2.2 the terms of all contracts for the provision of services to PT by
----------
* This portion of the Exhibit has been omitted pursuant to a request for
Confidential Treatment under Rule 406 of the Securities Act of 1933, as
amended. The Complete Exhibit, including the portions for which confidential
treatment has been requested, has been filed separately with the Securities
and Exchange Commission.
9
independent contractors contain provisions whereby the contractor is
subject to strict confidentiality obligations and all discoveries,
Inventions and Intellectual Property in the Field made by the
independent contractor in performing the service contracted for are
owned absolutely by PT;
5.2.3 PT owns full legal and beneficial title to the PT Rights;
5.2.4 at the Effective Date PT is not aware of any royalties or other
payments which are or may become payable to third parties in respect
of the PT Rights.
5.3. Each Party warrants and represents that:
5.3.1 it has all necessary permissions, consents and licences to carry out
the Project as detailed in the Work Programme;
5.3.2 it shall ensure that it will be ready and able to undertake the
Project within 1 (one) month of the date hereof.
6. INTELLECTUAL PROPERTY
6.1. PT shall retain ownership of the PT Rights.
6.2. PI shall retain ownership of the PI Rights
6.3. Should any new biological targets outside the Field be generated as a
result of the Project, PI shall be the owner of all rights pertaining to
such targets. PT shall have a 90-day right of proposal and negotiation to
propose a research and development project for such target, such
negotiation period to occur immediately after the date PT is notified that
the target has been identified. If PT and PI have not entered into a
written agreement for such proposed project at the end of such 90-day
period, then PT shall have no further rights in respect of such target,
and PI shall proceed as it sees fit; provided, however, that for the
180-day period following such 90-day period, PI shall not enter into an
agreement in respect of such target on terms less favourable to PI than
those last offered to PI by PT during such 90-day period.
6.4. Each Party hereby grants to the other Party a non-exclusive, royalty-free
licence (or sub-licence where appropriate and with the approval of the
head licensee if required) for so long as this Agreement remains in force
and has not been terminated (but not thereafter) to use such of the PT or
PI Rights or sub-licence rights in the Field to the MIT Agreement as are
necessary for the sole purpose of carrying out the Project.
6.5. All Project Rights shall be jointly owned by PT and PI (except as
otherwise
10
specifically provided for in this agreement) and the Parties shall not
disclose the same and shall procure that the Inventors under their
respective control do not disclose the same to any third party except with
the other Party's prior written consent. Each Party shall (and shall
procure that those of its employees and others under its control engaged
on the Project shall if requested) transfer or assign such Project Rights
to the other Party.
6.6 All Intellectual Property and Know How resulting from the Project outside
of the Field shall be owned as follows:
6.6.1 Any new biological targets (other than Cathepsin S) shall be owned
by PI;
6.6.2 Any Invention or improvements relating to RAPiD and compound
libraries shall be owned by PT;
6.6.3 Any other Intellectual Property shall be jointly owned. Each Party
hereby grants to the other a perpetual, royalty-free, worldwide
licence (with right to sub-license) to use as it sees fit the
Project Rights that continue to be jointly owned.
6.7 Each Party shall ensure that the other Party is promptly informed of all
Inventions arising from the Project or work done on or in connection with
the Project and shall also ensure that nothing is done by anyone under its
control to prejudice the grant in the United Kingdom, the United States of
America or any other part of the world of any patent or other protection
in respect of any Invention arising from the Project or work done on or in
connection with the Project.
6.8 In the event of a person other than an employee of a Party being employed
on the Project that Party shall before such person is permitted to work on
the Project obtain the signature of that person to an undertaking covering
(a) nondisclosure of Confidential Information and (b) the ownership of
rights in Inventions, Intellectual Property and Know How arising from the
Project each in terms as if the person were a Party to this Agreement []*
6.9 In order to facilitate the exploiting of any Invention arising from the
Project as effectively as possible each Party shall, and shall use all
reasonable endeavours to procure that the Inventors shall, from time to
time supply the other Party and its nominees (including licensees) with
any drawings, models, designs, technical data, computer software,
information, Know-How, biological material, or plant varieties in their
possession relating to the Invention.
6.10 The Parties will file any applications for patents covering jointly-owned
Project Rights in the joint names of both Parties. The cost of
prosecution of these patent applications and of maintenance and protection
of any patents granted,
----------
* This portion of the Exhibit has been omitted pursuant to a request for
Confidential Treatment under Rule 406 of the Securities Act of 1933, as
amended. The Complete Exhibit, including the portions for which confidential
treatment has been requested, has been filed separately with the Securities
and Exchange Commission.
11
as a result of these applications, shall be shared equally between PT and
PI. []*
6.11 For the avoidance of doubt, the Parties anticipate that the
commercialisation of Cathepsin S inhibitors developed during or in
connection with the Project will be through the licensing of such
inhibitors to a major pharmaceutical company. On such a commercialisation
PT and PI shall each grant the licensee or sub-licensee such licences and
sub-licences to PT Rights, PI Rights and the MIT Agreement as necessary to
develop Cathepsin S inhibitors developed during or in connection with the
Project.
6.12 All money received by either Party from a third party in respect of
Project Rights shall first be used to pay for any royalty or other
payments due to the owners of intellectual property rights licensed by one
of the Parties and necessary to commercialisation of the Project Rights.
All money received by either Party from such a third Party shall then be
used to reimburse each of the Parties, on a pro rata basis, for costs
incurred in the Project in accordance with Clause 2.7. Thereafter, PT and
PI shall share equally all Revenue after the payment of any continuing
royalties or other payments as described in the first sentence of this
Clause 6.12, which shall be shared equally by the Parties.
6.13 In the event that a bona fide offer is made to the Parties in relation to
the commercialisation of Cathepsin S inhibitors developed during or in
connection with the Project and the Parties cannot agree on whether to
accept such an offer then the Party which is unwilling to accept the offer
(the "Refusing Party") shall be obliged to pay the Party which is willing
to accept the offer (the "Accepting Party") the sum of 50% (fifty percent)
of the total written and irrevocable offer made by a third party (such an
offer to be a transaction at arms length) in order to purchase the
Refusing Party's rights in the Project Rights.
6.14 Infringement of Patents of Third Parties
(a) PI shall defend any suit, action or proceeding brought against itself
or PT alleging the infringement or misappropriation of any patent or any
other proprietary right of a third party by reason of the use of the PI
Rights in the Project. PT shall give PI prompt written notice of the
commencement of any such suit, action or proceeding or any claim of
infringement against PT and will furnish to PI a copy of each
communication relating to the alleged infringement and shall give to PI
all authority (including the right to exclusive control of the defense and
settlement of any such suit, action or proceeding), information and
assistance necessary to defend or settle any such suit, action or
proceeding. PI shall keep PT advised as to, and consult with PT from time
to time in respect of, all material developments with respect to such
suit, action or proceeding or any settlement negotiations in connection
therewith. PI shall pay (i) all expenses (including reasonable attorneys'
fees) incurred in connection with any such suit,
----------
* This portion of the Exhibit has been omitted pursuant to a request for
Confidential Treatment under Rule 406 of the Securities Act of 1933, as
amended. The Complete Exhibit, including the portions for which confidential
treatment has been requested, has been filed separately with the Securities
and Exchange Commission.
12
action or proceeding and (ii) any actual damages and costs finally awarded
against the infringing party as the result of any such suit, action or
proceeding, or the amount payable in any settlement of any such suit,
action or proceeding to the extent either arise from the PI Rights. In no
event shall PI be required to pay to PT any indirect, special, incidental
or consequential damages of any kind as a result of or in connection with
any such suit, action or proceeding or the settlement thereof. For
purposes of this Clause 6.14(a), PI rights shall include any Project
Rights assigned exclusively to PI.
(b) PT shall defend any suit, action or proceeding brought against itself
or PI alleging the infringement or misappropriation of any patent or any
other proprietary right of a third party by reason of the use of the PT
Rights in the Project. PI shall give PT prompt written notice of the
commencement of any such suit, action or proceeding or any claim of
infringement against PI and will furnish to PT a copy of each
communication relating to the alleged infringement and shall give to PT
all authority (including the right to exclusive control of the defense and
settlement of any such suit, action or proceeding), information and
assistance necessary to defend or settle any such suit, action or
proceeding. PT shall keep PI advised as to, and consult with PI from time
to time in respect of, all material developments with respect to such
suit, action or proceeding or any settlement negotiations in connection
therewith. PT shall pay (i) all expenses (including reasonable attorney's
fees) incurred in connection with any such suit, action or proceeding and
(ii) any actual damages and costs finally awarded against the infringing
party as the result of any such suit, action or proceeding, or the amount
payable in any settlement of any such suit, action or proceeding to the
extent either arise from the PT Rights. In no event shall PT be required
to pay to PI any indirect, special, incidental or consequential damages as
a result of or in connection with any such suit, action or proceeding or
the settlement thereof. For purposes of this Clause 6.14(b), PT rights
shall include any Project Rights assigned exclusively to PT.
(c) Unless otherwise agreed by the parties, PI and PT shall jointly defend
any suit, action or proceeding brought against either or both of PI or PT,
alleging the infringement or misappropriation of any patent or any other
proprietary right of a third party by reason of the use of the
jointly-owned Project Rights in the Project. If such suit, action or
proceeding or any claim of infringement is brought against either PI or PT
(the "Named Party"), such Named Party shall give the other party prompt
written notice of the commencement of any such suit, action or proceeding
or any claim of infringement and will furnish the other party with a copy
of each communication relating to the alleged infringement and shall share
equally all authority (including the control of the defense and settlement
of any such suit, action or proceeding), information and assistance
necessary to defend or settle any such suit, action or proceeding. The
Named Party shall keep the other party advised as to and consult in
respect of all developments with respect to such suit, action or
proceeding or any settlement negotiations in connection
13
therewith. The parties shall share equally (i) all expenses (including
reasonable attorney's fees) incurred in connection with any such suit,
action or proceeding and (ii) any actual damages and costs finally awarded
against the infringing party as the result of any such suit, action or
proceeding, or the amount payable in any settlement of any such suit,
action or proceeding to the extent either arise from the Project Rights.
In no event shall either party be required to pay the other any indirect,
special, incidental or consequential damages as a result of or in
connection with any such suit, action or proceeding or the settlement
thereof.
7. CONFIDENTIALITY
7.1. For the purposes of this Clause, "Confidential Information" means all
information of a confidential nature disclosed (whether in writing,
verbally or any other means and whether directly or indirectly) by one
Party ("the Disclosing Party") to the other Party ("the Receiving Party")
whether before or after the Effective Date including, without limitation,
any information relating to the Disclosing Party's products, operations,
processes, plans or intentions, product information, Know How,
Intellectual Property, Inventions, trade secrets, market opportunities and
business affairs.
7.2. Subject always to Clause 7.5 during the term of this Agreement and after
termination or expiration of this Agreement for any reason whatsoever the
Receiving Party shall:
7.2.1 keep the Confidential Information confidential; and
7.2.2 not disclose the Confidential Information to any other person other
than with the prior written consent of the Disclosing Party or in
accordance with Clause 7.5; and
7.2.3 not use the Confidential Information for any purpose other than the
performance of its obligations or the exercise of its rights under
this Agreement.
7.3. During the term of this Agreement the Receiving Party may disclose the
Confidential Information to its employees, sub-contractors or agents or
others engaged on the Project and to potential licensees in terms of
Clause 6.10 (the "Recipient") to the extent that it is necessary for the
purposes of effectively carrying on the Project or commercialising
Cathepsin S inhibitors developed during the Project.
7.4. The Receiving Party shall procure that each Recipient is made aware of and
complies with all the Receiving Party's obligations of confidentiality
under this Agreement and shall obtain the signature of the Recipient to an
undertaking covering (a) non-disclosure of confidential information and
(b) the ownership of
14
rights in Inventions, Intellectual Property and Know How arising from the
Project each in terms as if the Recipient were a Party to this Agreement
[]*
7.5. The obligations contained in Clauses 7.2 and 7.4 shall not apply to any
Confidential Information which:
7.5.1 is at the Effective Date or at any time after the Effective Date
comes into the public domain other than through breach of this
Agreement by the Receiving Party or any Recipient; or
7.5.2 can be shown by the written records of the Receiving Party to have
been known by the Receiving Party before disclosure by the
Disclosing Party to the Receiving Party; or
7.5.3 subsequently comes lawfully into the possession of the Receiving
Party from a third Party under no obligation of confidence to the
Disclosing Party in respect of such Confidential Information.
7.6. Each Party shall use reasonable endeavours to ensure that no disclosure or
publication or dissemination of work done on or in connection with the
Project takes place in any manner (whether orally or in writing or
otherwise) without the prior written consent of the other Party except as
specified in Clauses 7.3 and 7.4.
8. ANNOUNCEMENTS
No public announcement, communication or circular (other than to the
extent required by law, The London Stock Exchange Limited or the Panel on
Takeovers and Mergers or any other regulatory body in any jurisdiction or
by PT or PI for the purpose of raising funds) concerning the transactions
referred to in this Agreement shall be made or despatched for so long as
this Agreement continues in force by either Party without the prior
written consent of the other Party (such consent not to be unreasonably
withheld or delayed). The Parties agree that immediately following the
execution of this Agreement a press release shall be released concerning
the completion of this Agreement along with the major commercial terms and
that similar press releases shall be released throughout the term of the
project as major milestones are achieved.
----------
* This portion of the Exhibit has been omitted pursuant to a request for
Confidential Treatment under Rule 406 of the Securities Act of 1933, as
amended. The Complete Exhibit, including the portions for which confidential
treatment has been requested, has been filed separately with the Securities
and Exchange Commission.
15
9. GENERAL
9.1. This Agreement constitutes the entire agreement between the Parties
relating to the subject matter of this Agreement and supersedes all
previous such agreements whether written, oral or in any other form.
9.2. No variation of this Agreement shall be valid unless it is in writing and
signed by or on behalf of each of the Parties.
9.3. The failure to exercise or delay in exercising a right or remedy under
this Agreement shall not constitute a waiver of the right or remedy or a
waiver of any other rights or remedies and no single or partial exercise
of any right or remedy under this Agreement shall prevent any further
exercise of the right or remedy or the exercise of any other right or
remedy.
9.4. Except as expressly provided in this Agreement the rights and remedies
contained in this Agreement are cumulative and not exclusive of any rights
or remedies provided by law.
9.5. Any date, time or period referred to in this Agreement is of the essence
except only to the extent to which the Parties agree in writing to vary
it, in which event the varied date, time or period is of the essence.
9.6. Nothing in this Agreement shall be construed as creating a partnership
between the Parties or as constituting either Party as the agent of the
other Party for any purpose whatsoever and neither Party shall have the
authority or power to bind the other Party or to contract in the name of
or create a liability against the other Party in any way or for any
purpose.
9.7. Neither Party shall assign or transfer or purport to assign or transfer
any of its rights or obligations under this Agreement except with the
prior written consent of the other Party provided however that either
Party may assign any of its rights or obligations under this Agreement to
any Affiliate, if the assigning Party guarantees the performance of such
Affiliate of the assigned obligations under this Agreement, or to any
company with which it may merge or consolidate or to which it may sell all
or substantially all of its assets, without obtaining the consent of the
other Party.
9.8. Any notice or other communication under or in connection with this
Agreement shall be in writing and shall be delivered personally or sent by
first class post pre-paid recorded delivery (and air mail if overseas) or
by fax, to the Party due to receive the notice or communication at its
address set out in this Agreement or such other address as either Party
may specify by notice in writing to the other.
16
9.9 This Agreement is governed by, and shall be construed in accordance with,
English law. The courts of England shall have exclusive jurisdiction to
hear and determine any suit, action or proceedings, and to settle any
disputes, which may arise out of or in connection with this Agreement
(respectively, "Proceedings" and "Disputes") and, for such purpose, each
of the Parties hereby irrevocably submit to the jurisdiction of the courts
of England.
9.10 Each Party irrevocably waives any objection which it might at any time
have to the courts of England being nominated as the forum to hear and
determine any Proceedings and to settle any Disputes and agrees not to
claim that the courts of England are not a convenient or appropriate
forum.
9.11 Each Party shall use its reasonable endeavours to carry out the tasks
allocated to it in Schedule 1 hereto. If a Party uses reasonable
endeavours to accomplish the tasks allocated to it, such Party's failure
to accomplish those tasks shall not be deemed to be a breach of this
Agreement.
9.12 Except for claims arising from the breach of Clauses 7 and 2.9 and the
non-competition provisions of Clauses 4.4 and 4.5 of this Agreement, in no
event shall either party be required to pay the other party any indirect,
special, incidental or consequential damages of any kind as a result of or
in connection with any suit, action or proceeding, brought by a party to
this Agreement or a third party, or the settlement thereof.
17
IN WITNESS WHEREOF this Agreement has been executed by the Parties on the date
which first appears in this Agreement.
FOR PEPTIDE THERAPEUTICS LIMITED:
/s/ X X Xxxxxxx Signature of Director
------------------------
X. X. Xxxxxxx Name of Director
------------------------
FOR PEPTIMMUNE INC.:
/s/ Xxx X. Xxxxxxxxx Signature of Officer
------------------------
Xxx X. Xxxxxxxxx Name of Officer
------------------------
President Officer Title
------------------------
18
SCHEDULE 1
Work Programme
[]*
----------
* This portion of the Exhibit has been omitted pursuant to a request for
Confidential Treatment under Rule 406 of the Securities Act of 1933, as
amended. The Complete Exhibit, including the portions for which confidential
treatment has been requested, has been filed separately with the Securities
and Exchange Commission.
19
SCHEDULE 2
Accounts
[]*
----------
* This portion of the Exhibit has been omitted pursuant to a request for
Confidential Treatment under Rule 406 of the Securities Act of 1933, as
amended. The Complete Exhibit, including the portions for which confidential
treatment has been requested, has been filed separately with the Securities
and Exchange Commission.
