EXHIBIT 10.19
[CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTIONS
OF THIS AGREEMENT HAVE BEEN REDACTED AND HAVE BEEN SEPARATELY FILED
WITH THE COMMISSION.]
DELTASELECT-TM- COLLABORATIVE SERVICES AGREEMENT
This DeltaSelect-TM- Collaborative Services Agreement, including all
attachments hereto, (this "Agreement") is entered into as of December 16, 1999
(the "Agreement Date"), by and between DELTAGEN, INC., a Delaware corporation
having a place of business at 0000 Xxxxxxxx Xxxxxx, Xxxxxxxxxx 00000
("DELTAGEN") and SCHERING-PLOUGH RESEARCH INSTITUTE, a Delaware corporation
having an address at 0000 Xxxxxxxxx Xxxx Xxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000-0000
("SCHERING-PLOUGH").
WHEREAS, DELTAGEN possesses knowledge and experience in the research, creation,
design and generation of Knockout Mice (defined below); and
WHEREAS, SCHERING-PLOUGH desires to engage DELTAGEN to generate
Knockout Mice for SCHERING-PLOUGH and DELTAGEN desires to undertake the
generation of such Knockout Mice for SCHERING PLOUGH on a * * * under the terms
and conditions set forth in this agreement.
NOW THEREFORE, in consideration of the mutual covenants set forth
below, DELTAGEN and SCHERING-PLOUGH (individually "Party" and collectively
"Parties") agree as follows:
1. DEFINITIONS.
1.1 "Affiliate" shall mean any individual or entity directly or
indirectly controlling, controlled by or under common control with,
SCHERING-PLOUGH or DELTAGEN, as the case may be. For purposes of this Agreement,
the direct or indirect ownership of over fifty percent (50%) of the outstanding
voting securities of an entity, or the right to receive over fifty percent (50%)
of the profits or earnings of an entity shall be deemed to constitute control.
Such other relationship as in fact results in actual control over the
management, business and affairs of an entity shall also be deemed to constitute
control.
1.2 "Budget" means the pricing and payment terms for a Knockout
Mice Project set forth in Attachment I attached hereto.
1.3 "Confidential Information" means with respect to a Party
hereto (the "Disclosing Party"), collectively, all technical, financial and
business information of any kind whatsoever, and all tangible and intangible
embodiments thereof of any kind whatsoever, disclosed by the Disclosing Party to
the other Party hereto (the "Receiving Party") or obtained by the Receiving
Party through observation or examination of the foregoing, but only to the
extent such information or embodiment is maintained as confidential by the
Disclosing Party and is marked or otherwise identified as confidential when
disclosed to the Receiving Party or, in the case of information given verbally,
is identified as confidential in a written document provided to the Receiving
Party within thirty (30) days after verbal disclosure to the Receiving Party.
* * * Confidential material redacted and separately filed with the Commission.
1.4 "Data" means all data or information generated under a
Knockout Mice Project under this Agreement, including but not limited to all
information, records, reports and other material(s) required to be generated,
collected or analyzed by DELTAGEN under a Knockout Mouse Project.
* * * Confidential material redacted and separately filed with the Commission.
2
1.5 * * *.
1.6 "Effective Commencement Date" shall have the meaning set forth
in Section 2.3 below.
1.7 * * *.
1.8 "Knockout Mice" means mice generated under a Knockout Mice
Project pursuant to this Agreement * * *.
1.9 "Knockout Mice Project" means a specific project to create and
generate Knockout Mice in accordance with the terms of a specific Scope of Work
under this Agreement.
1.10 "Milestone" shall mean the milestones set forth on the Scope
of Work attached hereto.
1.11 "Schering-Plough Representative" means the representative
identified in writing by SCHERING-PLOUG to DELTAGEN on a Scope of Work, as such
representative may be changed from time to time in writing by SCHERING-PLOUGH.
1.12 * * *.
1.13 "Scope of Work" means the work plan for a Knockout Mice
Project substantially in the form attached hereto as Attachment I.
1.14 * * *.
1.15 "Study Materials" means any samples or materials (including
chemical or biological) provided by SCHERING-PLOUGH to DELTAGEN for purposes of
a Knockout Mice Project under this Agreement.
2. KNOCKOUT MICE PROJECTS
2.1 INDIVIDUAL KNOCKOUT MICE PROJECTS. If SCHERING-PLOUGH wishes
to have DELTAGEN perform a Knockout Mice Project under this Agreement,
SCHERING-PLOUGH shall initiate such request for a Scope of Work by notifying
DELTAGEN in writing in the form set forth in Attachment II and providing a
description of the particular Knockout Mice Project requested as well as the
information set forth in Section 2.2 and the Scope of Work. DELTAGEN shall
evaluate each such request to determine whether such Knockout Mice Project
* * * Confidential material redacted and separately filed with the Commission.
3
is feasible, if DELTAGEN requires technical or scientific modifications or if
DELTAGEN requires additional information to undertake such evaluation. If such
Knockout Mice Project in DELTAGEN's commercially reasonable discretion is not
feasible, DELTAGEN shall have the right (without penalty) to decline to
undertake such Knockout Mice Project. The terms of this Agreement, the Scope of
Work and the Budget shall form the entire agreement of the Parties with respect
to each Knockout Mice Project.
2.2 INITIATION OF KNOCKOUT MICE PROJECTS. Prior to DELTAGEN's
initiation of each Knockout Mice Project, SCHERING-PLOUGH shall:
2.2.1 Identify to DELTAGEN in writing each Knockout Mice
Project to be initiated and agree in writing with DELTAGEN upon the Scope of
Work for such Knockout Mice Project;
2.2.2 Consult with and agree in writing with DELTAGEN
regarding the * * * for such Knockout Mice Project and any proposed
modifications to the Scope of Work for such Knockout Mice Project.
SCHERING-PLOUGH shall be solely responsible for providing to DELTAGEN the data
and information with respect to the specific gene sequence for such Knockout
Mice Project; and
2.2.3 Provide in writing to DELTAGEN all * * * reasonably
required by DELTAGEN to undertake such Knockout Mice Project (including
information to identify and generate probes under Milestones 1 and 2).
2.2.4 Transfer to DELTAGEN, to the extent possible,
any * * * to SCHERING-PLOUGH that may be suitable for DELTAGEN's screening of
mouse genomic libraries.
2.3 COMMENCEMENT OF KNOCKOUT MICE PROJECT. Each Knockout Mice
Project conducted hereunder shall commence fifteen (15) days after written
agreement by both parties on a Scope of Work and DELTAGEN's receipt from
SCHERING-PLOUGH of all information and materials set forth in Section 2.2 above
relating to such Knockout Mice project (such date the "Effective Commencement
Date").
2.4 PERFORMANCE. DELTAGEN shall use commercially reasonable
efforts to perform its obligations under this Agreement, provided that,
SCHERING-PLOUGH acknowledges and agrees that the performance of the Knockout
Mice Projects involves a number of technologically complex steps and that any
time periods for performance and the Scope of Work may be subject to change due
to potential technological difficulties encountered. DELTAGEN shall notify
SCHERING-PLOUGH of technical difficulties as soon as reasonably practicable
after such difficulties are encountered and the parties shall discuss and agree
in good faith upon methods to resolve such technical difficulties in a
reasonable manner.
2.5 COMPLETION OF KNOCKOUT MICE PROJECT. Each Knockout Mice
Project shall be deemed complete upon SCHERING-PLOUGH's receipt of the Data for
such Knockout Mice Project under Section 9 below and DELTAGEN's completion of
the Milestones on the Scope of Work for such Knockout Mice Project.
* * * Confidential material redacted and separately filed with the Commission.
4
2.6 ADHERENCE TO SCOPE OF WORK. DELTAGEN shall perform those
activities described in the Scope of Work for each Knockout Mice Project.
Neither Party shall change or deviate from a Scope of Work without the prior
written consent of the other Party.
2.7 CHANGES TO A KNOCKOUT MICE PROJECT. SCHERING-PLOUGH shall have
the right, from time to time, to propose modifications to the Scope of Work of a
Knockout Mice Project. If SCHERING-PLOUGH proposes to change any terms of a
Knockout Mice Project, including but not limited to the estimated time schedule
for such Knockout Mice Project, SCHERING-PLOUGH shall submit such
modification(s) in writing to DELTAGEN (the "Proposed Modification"). Such
Proposed Modification shall be implemented by the parties upon the written
agreement of both parties to such Proposed Modification (which agreement shall
not be unreasonably withheld) and a revised Budget for such Proposed
Modification. DELTAGEN shall have the right, in its commercially reasonable
discretion, to accept or reject such Proposed Modification based upon DELTAGEN's
good faith reasonable belief as to whether such proposed modifications would
alter DELTAGEN's technical, performance or financial obligations under a Scope
of Work.
2.8 STANDARDS OF WORK AND ANIMAL CARE. With respect to each
Knockout Mice Project, DELTAGEN shall comply with all applicable IACUC standards
and good industry standards regarding the maintenance and care of the Knockout
Mice. * * * DELTAGEN shall replace any Knockout Mice that arrive at
SCHERING-PLOUGH diseased or dead (except for disease or death resulting from the
actions of SCHERING-PLOUGH's designated carrier). Upon the request of
SCHERING-PLOUGH, DELTAGEN shall promptly provide a written report to
SCHERING-PLOUGH concerning DELTAGEN's maintenance and care of the Knockout Mice.
3. PAYMENTS AND BUDGET.
3.1 BUDGET. SCHERING-PLOUGH shall pay to DELTAGEN the payments set
forth in the Budget for each Knockout Mice Project. Except as set forth in a
revised Budget under Section 3.2 below, such payments shall constitute full
payment for such Knockout Mice Project, including all labor, materials and
overhead and SCHERING-PLOUGH shall have no other payment obligations hereunder.
3.2 PAYMENTS. For each Knockout Mice Project, DELTAGEN shall
submit invoices to SCHERING-PLOUGH for the payments set forth in the Scope of
Work and Budget upon DELTAGEN's completion of each Milestone set forth in the
Scope of Work and Budget (except for Milestone I - Construct Generation).
SCHERING-PLOUGH shall pay such invoices within thirty (30) days after receipt.
DELTAGEN shall include with each invoice a written representation of DELTAGEN's
completion of such Milestones and, where applicable, documentation showing such
completion.
3.3 MILESTONE 1 - CONSTRUCT GENERATION. SCHERING-PLOUGH shall pay
to Deltagen within ten (10) days of the Agreement Date an initiation fee
of * * * (the "Initiation Fee") which shall consist of the * * * Milestone 1
payment for each of the * * * Knockout Mice Projects contemplated under this
Agreement. The Initiation Fee shall be nonrefundable, PROVIDED THAT, in the
event that this Agreement is terminated by SCHERING-PLOUGH pursuant to Section
11.4.1 due to a material breach of this Agreement by Deltagen, Deltagen shall
refund to SCHERING-
* * * Confidential material redacted and separately filed with the Commission.
5
PLOUGH the Milestone I payments for each Knockout Mice Project that was not
commenced by Deltagen prior to the date of such termination.
4. RIGHTS TO INVENTIONS.
4.1 * * *.
4.2 * * *.
4.3 * * *.
4.4 * * *.
* * * Confidential material redacted and separately filed with the Commission.
6
5. CONFIDENTIALITY.
5.1 CONFIDENTIAL INFORMATION. Except as otherwise expressly
provided in this Agreement, each Party shall maintain in confidence the
Confidential Information of the other Party for a period of * * * years. Neither
Party shall use, disclose or grant the use of the other's Confidential
Information except on a need-to-know basis to those directors, officers,
employees, and agents, to the extent such disclosure is reasonably necessary in
connection with its activities as expressly authorized by this Agreement. To the
extent that disclosure is authorized by this Agreement, prior to such
disclosure, the Party wishing to disclose the other Party's Confidential
Information shall obtain the written agreement of any such person who is not
otherwise bound by confidentiality obligations at least as restrictive as the
obligations set forth in this Agreement, to hold in confidence and not make use
of the Confidential Information for any purpose other than those permitted by
this Agreement.
5.2 PERMITTED DISCLOSURES. The nonuse and nondisclosure
obligations contained in this Article 5 shall not apply to the extent that (a)
the Receiving Party is required to disclose information by law, order, rule,
regulation or act of a governmental authority or agency or a court of competent
jurisdiction, PROVIDED THAT, the Receiving Party (i) shall reasonably notify the
Disclosing Party prior to any such disclosure to permit the Disclosing Party to
oppose such disclosure or to seek confidential treatment of such information and
(ii) if such disclosure is required, disclose only the minimum information
required to be disclosed in order to comply (as determined by counsel), whether
or not a protective order or other similar order is obtained by such Disclosing
Party; or (b) the Receiving Party can demonstrate that (i) the information was
public knowledge at the time of such disclosure by the Disclosing Party, or
thereafter became public knowledge, other than as a result of acts attributable
to Receiving Party in violation of this Agreement; or (ii) the information was
known by the Receiving Party (as shown by its written records) prior to the date
of disclosure to it by the Disclosing Party; or (iii) the information was
disclosed to the Receiving Party on an unrestricted basis from a third party not
under a duty of confidentiality of the Disclosing Party; or (iv) the information
was independently developed by employees or agents of the Receiving Party
without access to the Confidential Information of the
* * * Confidential material redacted and separately filed with the Commission.
7
Disclosing Party.
5.3 TERMS OF THIS AGREEMENT. Neither Party shall disclose any
terms or conditions of this Agreement (including without limitation the Budget)
to any third party without the prior consent of the other Party, except as
required by applicable law; PROVIDED HOWEVER, that either Party may disclose the
terms or conditions of this Agreement to a third party under an obligation of
confidentiality to such Party in connection with a proposed sale or in the event
of a proposed merger, change in control, consolidation, an equity investment by
such third party in such Party or other similar transaction. Notwithstanding the
foregoing, SCHERING-PLOUGH and DELTAGEN shall agree upon the substance of
information that can be used to describe the existence and/or terms of this
transaction in a press release and SCHERING-PLOUGH and DELTAGEN shall have the
right to disclose such information, as such information may be modified by
mutual agreement of the parties from time to time.
5.4 NO LICENSE. Except as expressly provided in this Agreement,
nothing herein shall be construed as giving either Party any license, right,
title or interest in or ownership, whether express or implied, of the other
Party's Confidential Information. Upon termination of this Agreement or a
particular Knockout Mice Project as provided in Article 11, or upon either
Party's request, each Party shall return all Confidential Information of the
other Party and/or destroy any portion of any documents, computer records, notes
and other material retained by such Party containing the Confidential
Information of the other Party. However, each Party may retain one copy of such
Confidential Information in its legal files to be used only for interpretation
of and compliance with this Agreement.
6. REPRESENTATIONS AND WARRANTIES.
6.1 Each Party hereby represents and warrants to the other Party
as follows:
6.1.1 CORPORATE EXISTENCE. Such Party is a corporation duly
organized, validly existing and in good standing under the laws of the state in
which it is incorporated.
6.1.2 AUTHORIZATION AND ENFORCEMENT OF OBLIGATIONS. Such
Party (a) has the corporate power and authority and the legal right to enter
into this Agreement and to perform its obligations hereunder, and (b) has taken
all necessary corporate action on its part to authorize the execution and
delivery of this Agreement and the performance of its obligations hereunder.
This Agreement has been duly executed and delivered on behalf of such Party, and
constitutes a legal, valid, binding obligation, enforceable against such Party
in accordance with its terms.
6.1.3 NO CONSENTS. All necessary consents, approvals and
authorizations of all governmental authorities and other persons required to be
obtained by such Party in connection with this Agreement have been obtained.
6.1.4 NO CONFLICT. The execution and delivery of this
Agreement and the performance of such Party's obligations hereunder (a) do not
conflict with or violate any requirement of applicable laws or regulations, and
(b) do not conflict with, result in a breach of
* * * Confidential material redacted and separately filed with the Commission.
8
any of the terms and provisions of, or constitute a default under, any
contractual obligation of it, and (c) do not conflict with or result in a breach
of any of the terms and provisions of its charter or operative documents or
bylaws.
6.1.5 COMPLIANCE WITH LAWS. Such Party shall comply with
all applicable material laws and regulations related to its activities
contemplated under this Agreement.
6.2 * * *.
6.3 * * *.
6.4 * * *.
6.5 * * *.
* * * Confidential material redacted and separately filed with the Commission.
9
7. REPORTING.
DELTAGEN shall deliver via overnight delivery service (or other
reasonable means agreed to by the parties) to the SCHERING-PLOUGH Representative
all reports required to be delivered in connection with a Knockout Mice Project.
8. RECORD RETENTION, INSPECTIONS AND COOPERATION.
8.1 At SCHERING-PLOUGH'S request, DELTAGEN shall maintain all
written Data and reports from each Knockout Mice Project for a period of one (1)
year from the date of completion of such Knockout Mice Project. At the
expiration of such one (1) year period, SCHERING-PLOUGH, at SCHERING-PLOUGH's
cost and expense, shall arrange with DELTAGEN for delivery of such Data to
SCHERING-PLOUGH or DELTAGEN may dispose of such written Data sixty (60) days
after providing written notice of the same to SCHERING-PLOUGH.
8.2 If a federal, state or local government authority conducts or
gives notice of its intent to conduct an inspection or takes regulatory action
with respect to a Knockout Mice Project conducted under this Agreement, the
Party learning thereof shall reasonably notify in writing the other Party
thereof and each Party shall provide the other with any information reasonably
required in connection therewith.
9. DATA.
Notwithstanding the provisions of Section 8, for each Knockout Mice
Project, DELTAGEN shall prepare and submit to SCHERING-PLOUGH or its designee
the Data set forth under the applicable Scope of Work with respect to a
particular Knockout Mice Project within forty-five (45) days after (i) the date
of termination or completion of the Milestones on the Scope of Work for such
Knockout Mice Project or (ii) the date that SCHERING-PLOUGH requests delivery of
such Data.
10. SUBCONTRACTING AND INDEPENDENT CONTRACTOR.
10.1 SUBCONTRACTING. SCHERING-PLOUGH is aware that certain Knockout
Mice Projects may require DELTAGEN to subcontract to third parties portions of
the work required under a Scope of Work. SCHERING-PLOUGH shall be deemed to have
approved such subcontracting on the following terms and conditions: (i) DELTAGEN
shall not be allowed or authorized to make any representations relating to
SCHERING-PLOUGH without the prior written consent of SCHERING-PLOUGH; and (ii)
such third party subcontractor shall be subject to the terms and conditions of
this Agreement. Prior to subcontracting any work contemplated by a Knockout Mice
Project, DELTAGEN shall notify SCHERING-PLOUGH of the intended third party
subcontractor and SCHERING-PLOUGH shall be provided with fourteen (14) days in
which to object to the use of a particular subcontractor. If SCHERING-PLOUGH
does not object to the use of a particular subcontractor within such fourteen
(14) day period, DELTAGEN may subcontract such work under the Scope of Work to
such third party subcontractor. If SCHERING-PLOUGH does object to the use of a
particular subcontractor, in its sole discretion, DELTAGEN shall be prohibited
from using such subcontractor to perform work under this
* * * Confidential material redacted and separately filed with the Commission.
10
Agreement.
10.2 INDEPENDENT CONTRACTOR. DELTAGEN shall perform its obligations
under this Agreement as an independent contractor and nothing contained herein
shall be construed to be inconsistent with that relationship or status. Neither
Party, nor their officers, directors, employees or agents shall be considered
employees or agents of the other Party and shall not be entitled to participate
in any of the other Party's benefit plans, programs, employment policies, or
workers' compensation insurance. This Agreement shall not constitute, create, or
in any way be interpreted as a joint venture, partnership or business
organization of any kind. Neither Party shall have the authority to bind the
other Party to any agreement whatsoever.
11. TERM AND TERMINATION.
11.1 TERM. This Agreement shall commence on the Agreement Date and
remain in fall force and effect until the later of (a) two (2) years after the
Agreement Date, or (b) the completion by DELTAGEN of all Milestones under any
Knockout Mice Projects commenced under this Agreement, unless earlier terminated
as provided below in this Article 11.
11.2 * * *.
11.3 TERMINATION BY DELTAGEN. DELTAGEN shall have the right to
terminate a Knockout Mice Project upon DELTAGEN's identification of an item or
circumstance under Section 2.4 that would prevent DELTAGEN from completing such
Knockout Mice Project using commercially reasonable efforts by providing thirty
(30) days written notice to SCHERING-PLOUGH, which notice shall contain the
basis for such termination.
11.4 TERMINATION BY EITHER PARTY.
11.4.1 MATERIAL DEFAULT. Except as otherwise provide in
Article 14 below, this Agreement or a Knockout Mice Project may be terminated by
either Party upon any material breach of this Agreement by the other Party,
provided that any breaching Party shall be given not less than sixty (60) days
prior written notice of such breach and the opportunity to cure such breach
during such period.
11.4.2 BANKRUPTCY. This Agreement or a Knockout Mice Project
may be immediately terminated by either Party if the other Party is dissolved or
liquidated, files or has filed against it a petition in bankruptcy or has a
receiver appointed for a substantial part of its assets.
11.5 RIGHTS AND OBLIGATIONS AFTER NOTICE OF TERMINATION.
11.5.1 TERMINATION BY SCHERING-PLOUGH * * * OR BANKRUPTCY. If
this Agreement or a Knockout Mice Project is terminated by SCHERING-PLOUGH
pursuant to Section 11.2 or terminated by DELTAGEN pursuant to Section 11.4,
DELTAGEN shall have the right to cease further work on applicable Knockout Mice
Projects and to cancel, if permitted under the terms of applicable agreements,
any third party obligations.
* * * Confidential material redacted and separately filed with the Commission.
11
Within thirty (30) days after DELTAGEN's cessation of work on such Knockout Mice
Project(s), DELTAGEN shall provide SCHERING-PLOUGH with a written statement of
all work performed by it through termination, including any non-cancelable costs
or expenses incurred by DELTAGEN prior to termination. DELTAGEN shall invoice
SCHERING-PLOUGH for all Milestones completed by DELTAGEN and for all reasonable
non-cancelable costs or expenses and if such notice is received by DELTAGEN
after work has commenced but prior to DELTAGEN's completion of work under a
Milestone, DELTAGEN shall invoice SCHERING-PLOUGH for payment of such
uncompleted Milestone as if DELTAGEN had completed such Milestone and
SCHERING-PLOUGH shall pay DELTAGEN for such uncompleted Milestone. DELTAGEN
shall deliver to SCHERING-PLOUGH all deliverables prepared or completed by
DELTAGEN at the time of such cessation of work and all unused Study Materials
and Data within sixty (60) days of DELTAGEN's notice of termination or receipt
by DELTAGEN of SCHERING-PLOUGH's notice of termination.
11.5.2 TERMINATION BY SCHERING-PLOUGH FOR BANKRUPTCY OF
DELTAGEN OR BY DELTAGEN FOR DELTAGEN'S INABILITY TO COMPLETE MILESTONE. If this
Agreement or a Knockout Mice Project is terminated by DELTAGEN pursuant to
Section 11.3 or by SCHERING-PLOUGH pursuant to Section 11.4.2 above, DELTAGEN
shall deliver all deliverables prepared or completed by DELTAGEN at the time of
such termination, all unused Study Materials and all Data to SCHERING-PLOUGH
within sixty (60) days of DELTAGEN'S notice of termination or receipt by
DELTAGEN of SCHERING-PLOUGH's notice of termination. DELTAGEN shall provide
SCHERING-PLOUGH with a written itemized statement of all work performed by
DELTAGEN through the date of termination (including any Milestones actually
completed by DELTAGEN) and SCHERING-PLOUGH shall pay such invoiced amount within
thirty (30) days of receipt of such statement.
11.5.3 TERMINATION BY SCHERING-PLOUGH FOR BREACH BY DELTAGEN.
If this Agreement or a Knockout Mice Project is terminated by SCHERING-PLOUGH
pursuant to Section 11.4.1 above, DELTAGEN shall deliver all deliverables
prepared or completed by DELTAGEN at the time of such termination, all unused
Study Materials and all Data to SCHERING-PLOUGH within sixty (60) days of
receipt by DELTAGEN of notice of termination. DELTAGEN shall provide
SCHERING-PLOUGH with a written itemized statement of all work performed by
DELTAGEN through the date of termination (including any Milestones actually
completed by DELTAGEN) and SCHERING-PLOUGH shall pay such invoiced amount (or
portion thereof that is not reasonably the subject of such breach) within thirty
(30) days of receipt of such statement.
11.6 EFFECT OF EXPIRATION OR TERMINATION. Expiration or termination
of this Agreement shall not relieve the parties of any obligation accruing prior
to such expiration or termination. The provisions of Sections 6.4, 6.5 and
Articles 4, 5 and 12 shall survive any expiration or termination of this
Agreement.
12. INDEMNIFICATION.
12.1 * * *.
* * * Confidential material redacted and separately filed with the Commission.
12
12.2 * * *.
12.3 PROCEDURE. A Party (the "Indemnified Party") which intends to
claim indemnification under this Article 12, shall promptly
notify the other Party (the "Indemnifying Party") of any Claim
with respect to which the Indemnified Party intends to claim
such indemnification. The Indemnifying Party shall have the
right to assume the defense of such Claim with counsel
selected by the Indemnifying Party; PROVIDED, HOWEVER, that
the Indemnified Party shall have the right to retain its own
counsel and the fees and expenses shall be paid by the
Indemnifying Party only if representation of the Indemnified
Party by the counsel retained by the Indemnifying Party would
be inappropriate due to actual or potential differing
interests between the Indemnified Party and any other party
represented by such counsel in such proceedings. The indemnity
obligations under this Article 12 shall not apply to amounts
paid in settlement of any Liability if such settlement is
effected without the consent of the Indemnifying Party, which
consent shall not be withheld unreasonably. The failure of the
Indemnified Party to promptly notify the Indemnifying Party of
a potential Claim shall not constitute a waiver of, or result
in the loss of, such Party's right to indemnification under
this Section 12.3, except to the extent that the Indemnifying
Party's rights and/or its ability to defend such Claim is
prejudiced by the Indemnified Party's failure to notify the
Indemnifying Party of such Claim within a reasonable time
after the commencement of any action. The Indemnifying Party
may not settle the action or otherwise consent to an adverse
judgment in such action that diminishes the rights or
interests of the Indemnified Party without the express written
consent of the Indemnified Party, which consent shall not be
withheld unreasonably. The Indemnified Party, its employees
and agents, shall cooperate fully with the Indemnified Party
and its legal representatives in the investigation of any
Claim covered by this indemnification.
13. TRADEMARKS AND PUBLICITY.
Except as set forth in Section 5.3 above, each Party agrees not to
identify the other Party or any Affiliate of the other Party in any promotion
advertising or other promotion materials to be disseminated to the public, or to
use any trademark, service xxxx, trade name or symbol of the other Party or any
Affiliate of the other Party without the express written consent of the other
Party.
* * * Confidential material redacted and separately filed with the Commission.
13
14. DELAYS OR FORCE MAJEURE.
14.1 FORCE MAJEURE. Neither Party shall be liable for the failure
or delay to perform its obligations under this Agreement or a Knockout Mice
Project if such failure or delay is caused by or results from causes beyond such
Party's reasonable control, including but not limited to strikes or other labor
disturbances, embargoes, acts of God, omissions or delays in acting by any
governmental authority or the other party, lockouts, riots, wars, fires, floods,
earthquakes or storms. A Party claiming a right to excused performance under
this Section 14.1 shall immediately notify the other Party in writing of the
extent of its inability to perform, which notice shall specify the occurrence
beyond its reasonable control that prevents such performance, and such Party
shall exert reasonable efforts to eliminate, cure and overcome any such causes
and to promptly resume performance of its obligations under this Agreement.
14.2 DELAY. If SCHERING-PLOUGH delays in performing its obligations
under a Knockout Mice Project for any reason, the estimated date that DELTAGEN
is targeted to complete its duties and obligations as described in the
applicable Scope of Work shall be extended by the period of time corresponding
to the delay.
15. NOTICES.
Any notice required or permitted to be given hereunder by one of the
parties hereto to the other party shall be in writing and delivered by any
lawful means to the address of the other party set forth below or at such other
address as either Party hereto may designate in writing. If sent by facsimile
letter, notice shall be deemed given when the transmission is completed if the
sender has a confirmed transmission report. Any notice sent by facsimile must
also be sent by mail or overnight courier or delivered by hand.
IF TO DELTAGEN:
* * *
* * * Confidential material redacted and separately filed with the Commission.
14
IF TO SCHERING-PLOUGH:
* * *
16. MISCELLANEOUS
16.1 * * *.
16.2 AMENDMENTS, WAIVER. No provision of this Agreement, the Budget
or the Scope of Work may be amended, modified, revoked, or waived except in
writing signed and delivered by an authorized officer of each Party. Either
Party's failure to require the other Party to comply with the provisions of this
Agreement shall not be deemed a waiver of such provision or any other provision
of this Agreement.
16.3 VALIDITY. If any clause, section or paragraph of this
Agreement is determined by a court of competent jurisdiction to be illegal,
invalid or unenforceable, it will be deemed severed from the remainder of this
Agreement and will have no effect on the legality, validity or enforceability of
the remaining provisions.
16.4 HEADINGS. The paragraph headings of this Agreement are merely
for the convenience of the parties and are not to be construed as modifying or
changing the obligations or conditions expressed in this Agreement.
16.5 ENTIRETY. This Agreement (including the Attachments hereto)
represents the entire understanding as of the Agreement Date hereof between the
parties with respect to the matter hereof and supersedes all prior agreements,
negotiations, understandings, representations, statements and writings between
the parties relating thereto.
16.6 CONFLICT WITH SCOPE OF WORK OR BUDGET. If any terms of this
Agreement are in conflict with any terms of any Scope of Work or Budget, the
terms of this Agreement shall govern.
16.7 COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same instrument.
16.8 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of California, without regard
to its conflicts of law principles.
* * * Confidential material redacted and separately filed with the Commission.
15
16.9 FURTHER ACTIONS. Each Party agrees to execute, acknowledge and
deliver such further instruments, and to do all other acts, as may be necessary
or appropriate in order to carry out their obligations under this Agreement.
IN WITNESS WHEREOF, the Parties hereto through each of their respective
duly authorized representatives have caused this Agreement to be executed as of
the Agreement Date.
SCHERING-PLOUGH RESEARCH INSTITUTE DELTAGEN, INC.
By: /s/ Xxxxxxxx Xxxxxxxxxxxx, M.D. By: /s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxxx Xxxxxxxxxxxx, M.D. Name: Xxxxxxx Xxxxxxxx
Title: President Title: Chief Executive Officer
12/16/99
* * * Confidential material redacted and separately filed with the Commission.
16
ATTACHMENT I
* * *
[3 pages of milestones and work descriptions redacted and filed separately
with the Commission]
* * * Confidential material redacted and separately filed with the Commission.
17
ATTACHMENT 11
FORM NOTIFICATION LETTER FOR INITIATION OF A NEW KNOCKOUT MOUSE PROJECT
(Template follows)
* * * Confidential material redacted and separately filed with the Commission.
18
(SCHERING-PLOUGH letterhead)
__________, __, _____
Xxxxxxx Xxxxxxxx, Ph.D.
President
Deltagen, Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxx Xxxx, XX 00000
Dear Xxxx,
This letter is to provide notice to Deltagen of Schering-Plough's request to
Deltagen to initiate work on a Knockout Mouse Project under the terms and
conditions of the DeltaSelect-TM- Collaborative Services Agreement between
Deltagen, Inc. and Schering-Plough, dated ____________ (the "Agreement"),
including but not limited to, the confidentiality obligations of the Agreement.
The Knockout Mice Project to be initiated is described as follows:
The Schering-Plough contact scientist for technical information regarding the
project will be:
Schering-Plough requests that Deltagen begin to work to develop the above
described Knockout Mice on the terms and conditions of the above-referenced
Agreement.
Sincerely,
SCHERING-PLOUGH RESEARCH INSTITUTE'S Signatory
Agreed,
-------------------
Deltagen, Inc.
* * * Confidential material redacted and separately filed with the Commission.
19
