Confidential Treatment
Exhibit 10.3
License Agreement
This Agreement is made this 7th day of November, 1997 (the "Effective Date"), by
and between XXX XXXXX & COMPANY having its principal place of business at Lilly
Xxxxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000 and its Affiliates (collectively,
"XXX XXXXX") and Cubist Pharmaceuticals Incorporated, a Delaware corporation
having its principal place of business at 00 Xxxxx Xxxxxx, Xxxxxxxxx, XX, 00000
and its Affiliates (collectively "CUBIST") as follows:
Article 1
Definitions
As used throughout this Agreement, the following terms shall have the meanings
indicated in this Article.
"Affiliate" means any corporation or other entity which directly or indirectly
controls, is controlled by or is under common control with a party to this
Agreement. A corporation or other entity shall be regarded as in control of
another corporation or entity if it owns or directly or indirectly controls more
than [ ]* of the outstanding voting stock or other ownership interest of the
other corporation or entity, or if it possesses, directly or indirectly, the
power to manage, direct or cause the direction of the management and policies of
the corporation or other entity or the power to elect or appoint [ ]* or more of
the members of the governing body of the corporation or other entity. Any such
other relationship as in fact results in actual control over the management,
business and affairs of a corporation or other entity shall also be deemed to
constitute control.
"Average Market Price" shall mean the average closing price for CUBIST common
stock for twenty consecutive trading days, the last day of which is immediately
prior to five days prior to the event that triggered such payment of CUBIST
common stock to XXX XXXXX.
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* Confidential Treatment requested: material has been omitted and filed
separately with the Commission.
"Compound" means [ ]* or a pharmaceutically acceptable salt thereof or a
pharmaceutically acceptable formulation thereof which is in Lilly's possession
on the Effective Date.
"Confidential Information" means any information and data received by a party
from the other party, as well as the terms of this Agreement. Notwithstanding
the foregoing, Confidential Information shall not include any part of such
Confidential Information that: (1) is or becomes part of the public domain other
than by unauthorized acts of the party obligated not to disclose such
Confidential Information; (ii) can be shown by written documents to have been
disclosed to the receiving party by a third party, provided such Confidential
Information was not obtained by such third party directly or indirectly from the
disclosing party with an obligation for such third party to maintain the
confidentiality of such information; (iii) prior to disclosure under this
Agreement, was already in the possession of the receiving party and such
possession can be evidenced by written documents, provided such Confidential
Information was not obtained directly or indirectly from the disclosing party
with an obligation to maintain the confidentiality of such information, (iv) can
be shown by written documents to have been independently developed by the
receiving party without breach of any of the provisions of this Agreement and
such independent development can be evidenced by written documents', or (v) is
disclosed by the receiving party pursuant to interrogatories, requests for
information or documents, subpoena, civil investigative demand issued by a court
or governmental agency or as otherwise required by law, provided, however, that
the receiving party notifies the disclosing party immediately upon receipt
thereof, giving such disclosing party sufficient advance notice to permit it to
seek a protective order or other similar order with respect to such Confidential
Information and provided, further, that the receiving party furnishes only that
portion of the Confidential Information which it is advised by counsel is
legally required whether or not a protective order or other similar order is
obtained by the disclosing party.
"XXX XXXXX Program" shall mean a research, development and/or marketing project
that XXX LILLY, its Affiliates, and/or a third party, pursuant to an Agreement
with XXX XXXXX, have been committing non-trivial financial and/or human
resources to advance.
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separately with the Commission.
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"Field" shall mean the treatment of infectious diseases except, [ ]*
"Know-How" means all information and data reasonably useful for the development,
process development, regulatory approval, manufacture, use, formulation or sale
of Compound in the Field which (i) is in the possession of XXX LILLY as of the
Effective Date or is created by XXX LILY after the Effective Date, (ii) XXX
LILLY can provide using reasonble efforts and (iii) XXX XXXXX is free to provide
without obligation to any third party. Such Know-How may include information
that is secret, whether or not patentable, relating to materials, methods,
processes, procedures, protocols, techniques, formulae and data reasonably
useful for the development, regulatory approval, manufacture or use of Compound
in the Field.
"Major Market Country" shall mean the United States, Canada, Japan, the United
Kingdom, Germany, France, Italy, Spain, Switzerland, Netherlands and Belgium.
"Net Sales" means the amounts received by CUBIST and/or its sublicensees on
sales or other transfers for commercial use of Compound, and products
incorporating Compound, to independent third parties in bona fide arms length
transactions, less the following deductions actually allowed and taken by such
independent third parties and not otherwise recovered by or reimbursed by CUBIST
or its sublicensees:
(a) [ ]*;
(b) [ ]*;
(c) [ ]*; and
(d) [ ]*
If CUBIST or its sublicensees sell or transfer Compound, or any products
incorporating Compound for commercial use, other than (i) reasonable quantities
of promotional samples or (ii) to an independent third party in a bona fide
arm's length transaction, Net Sales shall be determined based upon the resale or
other retransfer to an independent third party in an arm's length transaction by
the entity to whom such Compound, or product, was sold or transferred by Cubist
or its sublicensee. If there is no such resale or retransfer, Net Sales shall be
determined based on the
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average Net Sales price as determined in the immediately preceding royalty
accounting period as set forth in Section 4.02.
In the event Compound is sold as a component of a combination of functional
elements, Net Sales for purposes of determining royalty payments on such
combination shall be calculated by multiplying the Net Sales price of such
combination by the fraction [ ]* In the event no separate sale of either such
above-designated Compound or such above-designated non-Compound portion of the
combination is made during the accounting period in which the sale of the
combination was made, Net Sales shall be calculated by multiplying the Net Sales
price of the combination by the fraction [ ]*
"Patent(s)" means any of XXX XXXXX'x patents, pending patent applications, and
future. patent applications, including, but not limited to, those set forth on
Exhibit 3 attached hereto, which claim Compound, formulations of Compound,
processes for preparing Compound or use of Compound in the Field, any United
States or foreign counterpart patents and applications, and any continuing,
divisional, reissue, re-examination and substitute patents and applications
based, in whole or in part, on any of the foregoing patents and patent
applications, together with all continuations, continuations-in-part, divisions,
patents of addition, reissues, renewals, extensions, supplementary protection
certificates and complementary protection certificates of any of the foregoing
which are owned by XXX XXXXX and under which XXX LILLY has rights to grant a
sublicenses.
"Phase II Clinical Trial" shall mean clinical studies conducted in accordance
with Good Clinical Practices ("GCPs") in a small number of healthy volunteers to
establish efficacy and obtain a preliminary indication of the dosage of
Compound.
"Phase III Clinical Trial" shall mean large scale clinical studies in patients
conducted in accordance with GCPs primarily to establish safety and efficacy of
Compound.
"Valid Claim" shall mean a claim of an issued and unexpired Patent which has not
been withdrawn, canceled, revoked, disclaimed, or held invalid, unenforceable or
unpatentable by a final and unappealed (within the time allowed for appeals) or
unappealable judgment or decision of a court or other governmental agency of
competent jurisdiction
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Article 2
License Grant
2.00 XXX XXXXX grants to CUBIST the following worldwide, exclusive licenses
subject to the conditions set forth herein below in Section 2.01:
(a) Under the Patents, to develop, manufacture, formulate, have manufactured,
import, use, distribute for sale, market and sell Compound in the Field; and
(b) To use the Know-How for the development, manufacture, formulation, use,
distribution for sale, marketing, and sale of Compound consistent with the terms
of this Agreement.
2.01 (i) Subject to Section 2.01(ii) below, CUBIST shall have the right to grant
sub-licenses under the Patents and Know-How, for use in the Field, provided that
the terms and conditions of such sub-licenses are consistent with and no less
restrictive than the terms and conditions of this Agreement, and any such
disclosure or transfer of Compound shall be limited to use solely in the Field.
(ii) In the event that, during the term of this Agreement, CUBIST
actively seeks to grant a sub-license to a third party for the development of
the Compound in the Field which sublicense includes, but is not necessarily
limited to, the right to develop and/or commercialize an oral or intravenous
formulation of the Compound, CUBIST agrees to inform XXX XXXXX of such
determination by written notice, which notice shall include (a) a description in
reasonable detail of the subject matter of the proposed sub-license and (b) the
terms on which CUBIST would be willing to xxxxx XXX LILLY such rights (the
"Sublicense Notice"). XXX XXXXX shall thereupon have a period of [ ]* (the
"Notice Period") to either accept CUBIST's terms in writing or to make a written
counter-proposal. If XXX LILLY accepts CUBIST's proposal or makes a
counter-proposal, the parties will, for a period of up to [ ]* from receipt by
XXX XXXXX of the Sublicense Notice (the "Negotiation Period"), seek in good
faith to enter into a definitive agreement for such rights. If XXX LILLY does
not by the expiration of the Notice Period either accept CUBIST's proposal or
make a counter-proposal, or the parties negotiate in good faith and fail to
reach agreement by the expiration of the Negotiation
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Period, CUBIST shall be free to enter into a sub-license for such rights with a
third party,[ ]*
2.02 CUBIST shall notify XXX XXXXX within [ ]* of the identity of each
sublicensee together with a summary of the principal terms of any sub-license,
and shall take all reasonable steps in the event of a breach of any sub-license
by the sub-licensee to enforce the same.
2.03 CUBIST acknowledges that XXX LILLY has disclosed certain Know-How to CUBIST
prior to the execution of this Agreement and CUBIST shall treat such Know-How in
accordance with the terms of this Agreement. During the term of this Agreement,
XXX XXXXX shall disclose to CUBIST such other Know-How as is directly related to
CUBIST's activities under the license granted in Article 2.00 and which XXX
LILLY can provide to CUBIST using reasonable efforts.
2.04 Promptly after the Effective Date, XXX XXXXX may provide CUBIST with
reasonable access to consult with pertinent XXX LILLY employees that have had
prior experience working with Compound in the Field at XXX XXXXX to enhance the
preclinical or clinical development and manufacturing of the Compound, provided
that such consultation shall occur at a mutually agreeable time and place and
that XXX LILLY will only provide such access to current employees which are
reasonably able to provide CUBIST with XXX XXXXX Know-How relating to the
scale-up, manufacture, or formulation of Compound for use in the Field. CUBIST
shall be responsible for all reasonable expenses its own personnel and XXX LILLY
personnel incur in association with any such consultations. Upon CUBIST's
request, XXX XXXXX shall provide CUBIST and its sublicensees with all Know-How,
information and data owned by XXX LILLY which XXX XXXXX can provide using
reasonable efforts to the extent such Know-How, information and data is
reasonably required to further CUBIST's or its sub-licensees' ability to
develop, scale-up, obtain regulatory approval for, manufacture, distribute, use,
formulate or sell Compound for use in the Field. CUBIST agrees to treat all
Know-How disclosed to it as Confidential Information of XXX LILLY.
2.05 XXX XXXXX shall deliver to CUBIST, XXX XXXXX'x available inventory of
Compound. XXX XXXXX shall not be required to perform any manufacturing of
Compound for CUBIST.
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Article 3
Diligence and
Regulatory
3.00 CUBIST shall use commercially reasonable efforts to develop and test the
Compound in the Field, to perform all pre-clinical, clinical and other studies
of such Compound necessary to obtain regulatory approval for the manufacture,
use and sale of Compound, and to market and sell Compound in the Field in all
countries in which it is commercially reasonable to market such Compound. CUBIST
shall fully fund these efforts, as well as any other work that is required for
CUBIST to develop and market Compound in the Field.
CUBIST has prepared and provided to XXX LILLY a preliminary development plan
attached hereto as Exhibit 2, which contains CUBIST's estimate, based upon data
currently available to CUBIST concerning the subject matter of this Agreement,
of the probable course of Compound development hereunder. As Compound
development progresses, CUBIST will revise the plan from time to time to reflect
the development and evolution of its plans regarding development, regulatory
approvals, manufacturing and formulation, and clinical trials, and will provide
XXX XXXXX with a copy of any such materially revised plan as soon as reasonably
possible after such revision occurs. [ ]*. The terms under which XXX LILLY shall
acquire back all such rights shall be the subject of a separate agreement to be
negotiated in good faith by the parties.
3.01 CUBIST represents that it intends to conduct clinical testing of Compounds
to the extent that such testing is supported by safety and efficacy data
required by the applicable regulatory agency.
3.02 Within thirty (30) days of the Effective Date, XXX XXXXX shall deliver to
CUBIST a copy of the Investigational New Drug Application filed with the United
States Food and Drug Administration and foreign equivalents, if any relating to
the Compound, and as soon thereafter as is commercially practicable, XXX LILLY
shall transfer all other reasonably transferable information used in regulatory
filings, laboratory data, clinical data, toxicology data, and scale-up,
manufacturing and formulation information relating to Compound to CUBIST in a
commercially reasonable time frame.
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3.03 Both XXX XXXXX and CUBIST shall submit information and file reports to
various governmental agencies to the extent they are lawfully required on
compounds under clinical investigation, compounds proposed for marketing, or
marketed drugs. Information must be submitted at the time of initial filing for
investigational use in humans and at the time of a request for market approval
of a new drug. In addition, supplemental information must be provided on
compounds at periodic intervals and adverse drug experiences must be reported at
more frequent intervals depending on the severity of the experience.
Consequently, XXX LILLY and CUBIST agree, to the extent required by applicable
law or regulations, to:
1) provide to one another for initial and/or periodic submission to
governmental agencies significant information on Compound from pre-clinical
laboratory, animal toxicology and pharmacology studies, as well as serious or
unexpected adverse experience reports from clinical trials and marketed
commercial experiences with Compound.
2) report to one another in such a manner and time so as to enable each
party to comply with all governmental laws and regulations in territories for
which registration is or will be sought.
Serious adverse experience means any experience that suggests a
significant hazard, contraindication, side effect or precaution, or any
experience that is fatal or life threatening, Is permanently disabling, requires
or prolongs inpatient hospitalization, or is a congenital anomaly, cancer or
overdose.
Unexpected adverse experience is one not identified in nature,
specificity, severity or frequency in a current investigator brochure for
Compound, or in CUBIST's labeling for Product.
3.04 CUBIST also agrees that if it contracts with a third party for research to
be performed by such third party on Compound or if it sublicenses its rights
herein to a third party, it will require such third party to comply with the
reporting obligations (both to XXX XXXXX and to regulatory agencies) set forth
in this Section.
3.05 CUBIST shall comply with all applicable laws and regulations regarding the
care and use of experimental animals, in a country where the development is
carried out. All animals used to evaluate Compound shall be provided humane care
and treatment in accordance with the most acceptable veterinary practices.
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Article 4
Payments
4.00 Cubist will pay [ ]* to XXX LILLY as a license fee upon the
Effective Date of this Agreement.
4.01 CUBIST will also pay to XXX XXXXX the following payments:
(a) [ ]* as a license fee, to be paid upon the earlier of (i)
completion of CUBIST or CUBIST's sub-licensee's first Phase II Clinical Trial in
a Major Market Country or (ii) upon the initiation of CUBIST or CUBIST's
sub-licensees of patient dosing in the first Phase III Clinical Trial in a Major
Market Country; said license fee to be paid in CUBIST common stock based on the
Average Market Price for such CUBIST common stock;
(b) [ ]* as a license fee, to be paid upon the date of CUBIST's
or CUBIST's sub-licensee's first regulatory submission in a Major Market Country
for a license to market Compound, said license fee to be paid in CUBIST common
stock, based on the Average Market Price for such CUBIST Common Stock; and
(c) [ ]* as a license fee, to be paid upon the date of CUBIST's
or CUBIST's sub-licensee's first regulatory approval in a Major Market Country
for their application to market Compound, said license fee to be paid in CUBIST
common stock, based on the Average Market Price for such CUBIST Common Stock.
4.02 During the first [ ]* after the first commercial sale of Compound
in a Major Market Country, CUBIST will pay XXX LILLY royalties of [ ]*
on the first [ ]* of aggregate annual Net Sales of Compounds and
[ ]* on aggregate Net Sales between [ ]* and [ ]* and
[ ]* on aggregate annual Net Sales in excess of $150,000,000 in all
countries ("Protected Countries") for so long as (a) the manufacture, use or
sale of Compound is covered by a Valid Claim, or (b) there is no significant
generic competition which causes a reduction of Net Sales of Compound by
[ ]* or more in any [ ]* period.
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After the expiration of the first [ ]* after first commercial sale in a
Major Market Country, CUBIST will pay XXX XXXXX royalties of [ ]* on the
first [ ]* of aggregate annual Net Sales of Compound and [ ]* on
aggregate annual Net Sales between [ ]* and [ ]* and [ ]*
on aggregate annual Net Sales in excess of [ ]* in all countries
("Protected Countries") for so long as (a) the manufacture, use or sale of a
Compound is covered by a Valid Claim, or (b) there is no significant generic
competition which causes a reduction of Net Sales of Compound by [ ]* or
more in any [ ]* period.
4.03 For a period of [ ]* following first commercial sale in a Major
Market Country, CUBIST will pay XXX LILLY royalties of [ ]* of
aggregate annual Net Sales in all countries that are not Protected Countries,
but where the manufacture, use, sale or transfer of Compound utilizes Know-How
provided to CUBIST by XXX XXXXX. [ ]* of Net Sales in countries that are
not Protected Countries shall be included in aggregate annual Net Sales of
Compound calculated pursuant to Section 4.02 for purposes of determining the
appropriate royalty percentage in Section 4.02.
4.04 In the event that CUBIST can demonstrate that external factors beyond its
control (such as government-imposed price controls) have materially reduced
CUBIST's profitability on sales of Compound in any Country, XXX LILLY agrees to
consider in good faith an equitable reduction in the royalty rate applicable to
such country under Section 4.02 or 4.03, as applicable.
4.05 The first payment under Articles 4.04 and 4.05 shall be due within [ ]*
after December 31 or June 30, whichever such date occurs first after the first
commercial sale or transfer of Compound. Thereafter, payments under Articles
4.04 and 4.05 shall be made within [ ]* of each of December 31 and June 30 of
each year. Payments shall be accompanied by a report showing all facts necessary
to the calculation of amounts due.
4.06 All royalty payments to XXX XXXXX shall be in United States dollars.
Royalty payments based on Net Sales in currencies other than United States
dollars shall be converted to US dollars according to the
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average official rate of exchange for that currency as published in the Wall
Street Journal on the first and last days of the six-month period in which that
royalty accrued (or, if not published on that day, the first and last
publication days for the Wall Street Journal during that six month period). If
such exchange rate is not published in the Wall Street Journal, then the rate
shall be determined using average conversion rates that are accepted in the
industry on the first and last days of the six month period in which the royalty
accrued. All payments that are not to be made in CUBIST common stock, as
specified herein. shall be paid in United States dollars.
4.07 If by law, regulation, or fiscal policy of a particular country, conversion
into United States dollars or transfer of funds of a convertible currency to the
United States is restricted or forbidden, CUBIST shall give XXX LILLY prompt
written notice and shall pay the royalty due under this Article 4 through such
means or methods as are lawful in such country as XXX XXXXX may reasonably
designate. Failing the designation by XXX LILLY of such lawful means or methods
within thirty (30) days after such written notice is given to XXX XXXXX, CUBIST
shall deposit such royalty payment in local currency to the credit of XXX L]ILLY
in a recognized banking institution designated by XXX XXXXX, or if none is
designated by XXX LILLY within the thirty (30) day period described above, in a
recognized banking institution selected by CUBIST In and identified in a written
notice to XXX XXXXX by CUBIST, and such deposit shall fulfill all obligations of
CUBIST with respect to such royalties.
4.08 CUBIST and its sub-licensees, if any, shall maintain complete and accurate
books and records with respect to sale and use of Compound and all other
information necessary to permit calculation and verification of amounts due
under this Article 4 and Article 5 and Article 6, set forth below. Upon
reasonable prior written notice to CUBIST, XXX LILLY may cause an independent
agent to audit the books and records of CUBIST and its sub-licensees, if any,
pertaining to the payment to XXX XXXXX hereunder, for the sole purpose of
confirming the amounts due, and the accuracy of the payments and reports;
provided that no such audit shall be permitted for periods exceeding [ ]*
prior to the date CUBIST receives such written notice. Any such audit shall be
performed at XXX XXXXX'x expense during normal business hours and shall, if so
required by CUBIST, be performed by a firm of independent public
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accountants reasonably acceptable to CUBIST. The independent agent shall report
only such information as would properly be included in such a report. In the
event of an underpayment, CUBIST shall promptly remit to XXX XXXXX all amounts
due. CUBIST shall require any sublicensee to agree to comply with all of the
terms of this paragraph, including but not limited to making such report,
maintaining such records, and permitting such audit.
[ ]*
4.09 Any late payments due to XXX LILLY shall be subject to interest charges
which rate shall be established at [ ]* above the prime interest rate in
effect on the date that such payment was first due to XXX XXXXX.
Article 5
Minimum Royalties
5.00 [ ]* after December 31 or June 30, whichever date occurs first,
following the first twelve (12) month period after the first commercial sale of
Compound in a Major Market Country, CUBIST will pay XXX LILLY [ ]* as a
minimum royalty.
5.01 [ ]* after December 31 or June 30, whichever date occurs first,
following the second twelve (12) month period after the first commercial sale of
Compound in a Major Market Country, CUBIST will pay to XXX XXXXX [ ]* as
a minimum royalty.
5.02 [ ]* after December 31 or June 30, whichever date occurs first,
following the third twelve (12) month period after the first commercial sale of
Compound in a Major Market Country, CUBIST will pay XXX LILLY [ ]* as a
minimum royalty.
5.03 CUBIST shall deduct any withholding taxes from the payments agreed upon
under this Agreement and pay them to the proper tax authorities as required by
applicable law. CUBIST shall maintain official receipts of any withholding taxes
and forward these receipts to XXX XXXXX. The parties will exercise their best
efforts to ensure that any
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withholding taxes imposed are reduced as far as legally possible under the
provisions of any treaties applicable to any payment made hereunder.
Article 6
Indemnification, Insurance and Limitation of Damages
6.00 CUBIST shall indemnify XXX LILLY and its directors, officers, employees and
agents, as set forth in Article 6.02, with respect to (a) any third party claim
or action against XXX XXXXX based on CUBIST's or CUBIST's sublicensee's
developing, making, distributing, selling, marketing, using or otherwise
transferring Compound and (b) breach of any representation or warranty contained
in Article 7 by CUBIST, provided, however that CUBIST shall have no duty to
indemnify XXX LILLY to the extent that any such claim or action is subject to
XXX XXXXX'x duty of indemnification set forth in Article 6.01.
6.01 XXX LILLY shall indemnify CUBIST, as set forth in Article 6.02, with
respect to (a) any third party claim or action against CUBIST based on (i)
activities of XXX XXXXX, Its employees, or its agents with respect to Compound
prior to the Effective Date, (ii) the negligence or willful misconduct of XXX
LILLY, its employees and agents, and (b) breach of any representation or
warranty contained in Article 7 by XXX XXXXX, provided, however, that XXX LILLY
shall have no duty to indemnify CUBIST to the extent that any such claim or
action Is subject to CUBIST's duty of indemnification set forth in Article 6.00.
6.02 With respect to the claims and actions referenced in Articles 6.00 and 6.01
above, the indemnifying party shall defend any such claim or action against the
indemnified party and shall pay all damages, judgments, costs, expenses
(including attorneys' fees, but only to the extent that the indemnifying party
fails to promptly assume the defense of such claims and actions) and liability
awarded against the indemnified party, or settlements entered into, with respect
to such claim or action, provided that the indemnified party (a) provides prompt
written notice to the indemnifying party of any such claim or action, (b) allows
the indemnifying party to assume the defense and settlement thereof, with
counsel of its choice, and (c) provides reasonable assistance to the
indemnifying party in connection with the defense and settlement thereof.
6.03 Prior to administration of Compound to any human, CUBIST shall provide to
XXX XXXXX an endorsement verifying customary levels of insurance for damages,
judgments, costs, expenses (including attorneys' fees) and liability with
respect to any third party claim or action based on CUBIST's or CUBIST's
sublicensee's manufacture, distribution, use,
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marketing or sale of Compound, naming XXX LILLY, its directors, officers and
employees as additional insureds on the policy, and shall have copies of such
insurance policies delivered to XXX XXXXX as soon as reasonably practical. In
addition, evidence of insurance in the form of such endorsement shall be
furnished to XXX LILLY at the inception of each subsequent phase of human
clinical trials, as well as upon granting of NDA and PLA, but in no event less
than annually upon the insurance policy renewal date. Such insurance shall
remain in effect at customary levels throughout the term of this Agreement. XXX
XXXXX shall be informed thirty (30) days prior to any cancellation of or
material decrease in the amount of coverage of such insurance by CUBIST or any
other action that CUBIST reasonably should believe will result in decrease or
cancellation of such insurance, or immediately upon receipt by CUBIST of a
notice of cancellation of such insurance, on the effective date of which
cancellation or decrease, clinical use of Compound must immediately cease,
subject to CUBIST obtaining adequate replacement insurance. The foregoing shall
not be interpreted to limit the scope or amount of CUBIST's indemnification
obligation under Article 6.00.
Notwithstanding the foregoing, CUBIST shall be entitled to adopt an insurance
program containing self insurance elements, to the extent that CUBIST is able to
demonstrate to the reasonable satisfaction of XXX LILLY that such a program is
not unusual in the industry for companies similarly situated (including
financial condition to support such a program) or with respect to products with
a risk profile similar to products licensed hereunder.
6.04 Other than as set forth elsewhere in this Agreement, in no event shall
either party be liable for any special, consequential, indirect, or incidental
damages, however caused and on any theory of liability, arising out of this
Agreement. These limitations shall apply notwithstanding any failure of
essential purpose of any limited remedy.
Article 7
Representations, Warranties And Disclaimer
7.00 Each party represents and warrants to the other party that (a) it has the
right to enter into this Agreement; (b) this Agreement has been duly authorized
by all necessary action of such party and (c) the execution of this Agreement by
the party will not conflict with or breach any other agreement to which it is a
party or by which it is bound.
7.01 XXX XXXXX represents that (a) it is party to an agreement with Ophidian
which Agreement includes a covenant not to compete (b) if
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CUBIST notifies XXX LILLY that it desires to develop Compound for the treatment
of clostridium difficile-induced colitis, XXX XXXXX shall notify CUBIST if such
covenant has expired or is terminated, (c) there is no other agreement known to
XXX LILLY to which it is a party and by which it is bound that would conflict
with or be breached by XXX XXXXX granting the license in Article 2, (d) except
as previously disclosed in writing to CUBIST, no other person or entity has
claimed, or to XXX XXXXX'x knowledge has, any rights to or interest in the
Patents and the Know- How in the Field to be licensed hereunder, and that to its
knowledge, the manufacture, use, distribution, marketing or sale of the
Compound(s) can be performed without infringing the patent rights of any third
party, and (e) as of the Effective Date XXX XXXXX is conducting no development
program relating to analogs or derivatives of the Compound, provided that XXX
LILLY shall be free to commence and conduct any such program at any time
hereafter.
7.02 XXX XXXXX makes no representation or warranty that Compound made, used, or
sold under the licenses granted herein is or will be free of claims of
infringement of the patent rights of any third party (although it represents and
warrants that it has no knowledge of (i) such infringement not heretofore
disclosed to Cubist and (ii) any payment obligations that CUBIST will have to
third parties in connection with CUBIST's development, manufacturing, marketing
or sale of Compound) and makes no warranty or representation that any of the
Patents to be licensed hereunder are valid or enforceable.
7.03 EXCEPT AS SET FORTH IN ARTICLES 7.00 AND 7.01 ABOVE, XXX LILLY EXPRESSLY
DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR
NON-INFRINGEMENT.
15
7.04 CUBIST acknowledges that the Compound(s) are highly experimental in
nature [ .]*
7.05 CUBIST warrants that all CUBIST common stock to be paid to XXX XXXXX
pursuant to this Agreement shall be properly issued and all legal requirements
associated with such issuance to XXX LILLY shall be fulfilled.
The number of shares of CUBIST common stock payable to XXX XXXXX shall be
determined by dividing the payment amount by the Average Market Price to
determine the number of shares.
For illustration purposes only, upon completion of CUBIST's first Phase II
Clinical Trial, CUBIST shall pay XXX LILLY [ ]* in CUBIST common stock. The
number of shares to be transferred to XXX XXXXX shall be determined by dividing
[ ]* by the Average Market Price.
Article 8
Patents And Know-How
8.00 In the event either of the parties shall learn of the infringement, or a
challenge to the validity, enforceability, or title of any Patent (including any
action for a declaratory Judgment) right licensed hereunder, or an action for
unauthorized use or misappropriation of Know-How licensed hereunder, such party
shall promptly notify the other party thereof in writing and shall provide the
other party with any evidence in its possession of such infringement, challenge
or action.
8.01 Actions Affecting Other XXX LILLY Programs.
(i) During the term of this Agreement, XXX XXXXX shall have the sole
right, but no obligation, to bring or defend any suit or action relative to the
patenting or patent enforcement directly relating to Compound, manufacture, use,
distribution, marketing or sale of Compound in the Field which suit or action
also materially affects intellectual property rights of XXX LILLY that relate to
an active XXX XXXXX Program, including the fight to recover for past
infringement, or the unauthorized use or misappropriation of Know-How in the
Field. If XXX LILLY finds it
--------------------------
* Confidential Treatment requested: material has been omitted and filed
separately with the Commission.
16
necessary or desirable to join CUBIST in such suit or action, CUBIST shall
execute all papers and perform such other acts as may reasonably be required, at
XXX XXXXX'x expense, to join CUBIST in such suit or action. CUBIST may, at its
option, join as a party to such suit and be, at its expense, represented by
counsel of its choice, provided that XXX LILLY shall continue to control the
prosecution or defense of such suit. Unless CUBIST and XXX XXXXX otherwise
agree, any amount recovered in any such action, whether by judgment or
settlement, after deducting XXX XXXXX'x reasonable expenses (including
attorneys' fees), and payment to CUBIST of damages in respect of CUBIST's lost
profits for which XXX XXXXX recovers payment and CUBIST's reasonable expenses
(including attorneys' fees) incurred in connection with an action or suit in
which XXX LILLY requested that CUBIST be Joined or in which CUBIST voluntarily
joined, shall be paid to or retained by XXX XXXXX.
(ii) In the event XXX LILLY faIls to take action with respect to such
infringement, or challenge to validity, enforceability or title, or action for
unauthorized use or misappropriation of Know-How in the Field which materially
affect intellectual property rights of XXX XXXXX that relate to an active XXX
LILLY program, within a reasonable period, no less than three (3) months,
following receipt by XXX XXXXX of reliable evidence of infringement, CUBIST
shall have the right, but no obligation, to bring, or defend any such suit or
action. XXX LILLY may, at its option, join as a party to such suit and be, at
its expense, represented by counsel of its choice, provided that CUBIST shall
continue to control the prosecution or defense of such suit. If CUBIST finds it
necessary to join XXX XXXXX in such suit or action, XXX LILLY shall execute all
papers and perform such other acts as may be reasonably required at CUBIST's
expense. Unless CUBIST and XXX XXXXX otherwise agree, any amount recovered in
any such action or suit, whether by judgment or settlement, after deducting
CUBIST's reasonable expenses (including attorneys' fees) and payment to XXX
LILLY of damages in respect of XXX XXXXX'x lost royalties for which CUBIST
recovers payment and after payment to XXX LILLY of its reasonable expenses
(including attorneys' fees) incurred in connection with an action or suit in
which CUBIST requested that XXX XXXXX be joined or which XXX LILLY voluntarily
owned, shall be paid to or retained entirely by CUBIST.
8.02 Actions Not Affecting Other Lilly Programs.
(i) During the term of this Agreement, CUBIST shall have the sole
right, but no obligation, to bring or defend any suit or action relative to the
patenting or patent enforcement directly relating to Compound, manufacture, use,
distribution, marketing or sale of Compound in the
17
Field which suit or action does not materially affect intellectual property
rights of XXX XXXXX that relate to an active XXX LILLY Program, including the
right to recover for past infringement, or the unauthorized use or
misappropriation of Know-How in the Field. If CUBIST finds it necessary or
desirable to join XXX XXXXX in such suit or action, CUBIST shall execute all
papers and perform such other acts as may reasonably be required, at CUBIST's
expense, to join XXX LILLY in such suit or action. XXX XXXXX may, at its option,
join as a party to such suit and be, at its expense, represented by counsel of
its choice, provided that CUBIST shall continue to control the prosecution or
defense of such suit. Unless CUBIST and XXX LILLY otherwise agree, any amount
recovered in any such action or suit, whether by Judgment or settlement, after
deducting CUBIST's reasonable expenses (including attorneys' fees) and payment
to XXX XXXXX of damages in respect of XXX XXXXX'x lost royalties for which
CUBIST recovers payment and after payment to XXX XXXXX of its reasonable
expenses (including attorneys' fees) in connection with an action or suit in
which CUBIST requested that XXX LILLY be joined or which XXX XXXXX voluntarily
joined, shall be paid to or retained entirely by CUBIST.
(ii) In the event CUBIST faIls to take action with respect to such
infringement, or challenge to validity, enforceability or title, or action for
unauthorized use or misappropriation of Know-How in the Field which does not
materially affect intellectual property rights of XXX LIILLY that relate to an
active XXX XXXXX program, within a reasonable period, no less than three (3)
months, following receipt by CUBIST of reliable evidence of infringement, XXX
LILLY shall have the right, but no obligation, to bring, or defend any such suit
or action. If XXX XXXXX finds it necessary to join CUBIST in such suit or
action, CUBIST shall execute all papers and perform such other acts as may be
reasonably required at XXX XXXXX'x expense. CUBIST may, at its option, join as a
party to such suit and be, at its expense, represented by counsel of its choice,
provided that XXX XXXXX shall continue to control the prosecution or defense of
such suit. Unless CUBIST and XXX LILLY otherwise agree, any amount recovered in
any such action, whether by judgment or settlement, after deducting XXX XXXXX'x
reasonable expenses (including attorneys' fees), and payment to CUBIST of
damages in respect of CUBIST's lost profits for which XXX LILLY recovers payment
and CUBIST's reasonable expenses (including attorneys' fees) incurred in
connection with an action or suit in which XXX XXXXX requested that CUBIST be
joined or in which CUBIST voluntarily joined, shall be paid to or retained by
XXX LILLY.
18
8.03 If CUBIST determines in good faith in consultation with XXX XXXXX that the
manufacture, use or sale of Compound in the Field would infringe the
intellectual property rights of a third party unaffiliated with either CUBIST or
XXX LILLY, and it therefore becomes necessary to pay a royalty, license fee or
other compensation to that party to avoid a claim of infringement, then CUBIST
and XXX XXXXX shall each bear [ ]* provided that XXX XXXXX'x share of such
obligation shall be deducted from CUBIST's royalty payments due to XXX XXXXX,
and further provided that CUBIST's payment, pursuant to this Agreement, to XXX
LILLY in any one (1) year would never be reduced by more than [ ]*. If, as a
result of the preceding sentence, CUBIST bears more than [ ]* of the royalty,
license fee or other compensation due to a third party under this Section 8.04,
the amount of the excess may be carried forward and used by CUBIST as a credit
against royalties due XXX XXXXX in subsequent royalty periods, provided that in
no event shall CUBIST's royalty payments to XXX LILLY be reduced by more than
[ ]*.
8.04 Each party agrees to cooperate with the other in legal action taken to
enforce, defend or maintain a Patent licensed hereunder or concerning Know-How
licensed hereunder, including litigation proceedings.
8.05 XXX XXXXX shall take all steps necessary to maintain the Patents in the
Field, including without limitation the preparation, filing and prosecution of
new patent applications, through an attorney of their choice. CUBIST shall
reimburse XXX LILLY for one half (1/2) of its reasonable out-of-pocket expenses
incurred after the Effective Date paid to third parties for patent preparation,
reasonable attorney fees, patent filing fees, applications for patent term
extensions and SPC's, translation fees for patent purposes, and patent
maintenance fees for Patents licensed hereunder within thirty (30) days of
receipt of an itemized expense report from XXX XXXXX for such patent related
expenses.
(a) If CUBIST reasonably believes that XXX LILLY is failing to maintain one or
more of its Patents in the Field, CUBIST shall provide XXX XXXXX sixty (60) days
written notice of its intent to assume maintenance of such Patents itself If XXX
LILLY fails to resume maintenance of the Patents in the Field that CUBIST
reasonably believes that XXX XXXXX is failing to maintain or to provide
reasonable evidence
--------------------------
* Confidential Treatment requested: material has been omitted and filed
separately with the Commission.
19
demonstrating that XXX LILLY is maintaining these Patents in the Field at the
expiration of such sixty (60) day period, CUBIST may, through an attorney of
their choice, take all necessary actions to maintain the Patents, and shall be
entitled to deduct [ ]* of the costs and expenses incurred from any of
CUBIST's payments pursuant to Article 4.04. In such event, XXX XXXXX shall
complete all acts and execute and deliver all instruments and other documents
and render CUBIST assistance as is necessary or desirable for CUBIST to assume
the filing, prosecution and maintenance of such Patents in the Field that XXX
LILLY has not resumed maintenance of or demonstrated that it is maintaining.
(b) XXX XXXXX shall keep CUBIST currently advised as to the status of all
patents and patent applications which relate to Patents and to supply CUBIST
promptly with copies of all patents, patent applications, substantive patent
office actions, substantive responses received or filed in connection with such
applications. CUBIST may itself or through its attorney offer comments and
suggestions with respect to the matters that are the subject of this Article
8.06, and XXX LILLY agrees to consider carefully such comments and suggestions;
however, nothing herein shall obligate XXX XXXXX to follow such comments or
suggestions.
(c) XXX LILLY shall notify CUBIST of their intention to abandon a patent or
patent application which relates to Patents (either a total series of Patents or
patent applications or on a country by country basis). At CUBIST's option,
CUBIST may maintain such patent or patent application relating to Patent that
XXX XXXXX plans to abandon either a total series of Patents or patent
applications or on a country by country basis) at CUBIST's sole expense, and
CUBIST shall receive title to such patent or patent application and such patent
shall no longer then be considered a Patent for purposes of this Agreement.
8.06 CUBIST shall take all steps necessary to maintain its patents and patents
relating to Compound in the Field, including without limitation the preparation,
filing and prosecution of new patent applications through an attorney of its
choice, provided that a copy of any new patent applications relating to Compound
in the Field, to be filed by CUBIST or a sub-licensee of CUBIST, will be
supplied to XXX LILLY at least thirty (30) days prior to the filing date of such
patent application.
--------------------------
* Confidential Treatment requested: material has been omitted and filed
separately with the Commission.
20
CUBIST shall keep XXX XXXXX currently advised as to the status of all
patents and patent applications which relate to patents filed by CUBIST in the
Field and to supply XXX LILLY promptly with copies of all patents, patent
applications, patent office actions, responses and other papers received or
filed in connection with such applications. XXX XXXXX may itself or through its
attorney offer the other comments and suggestions with respect to the matters
that are the subject of this Article 8.06, and CUBIST agrees to consider
carefully such comments and suggestions, however, nothing herein shall obligate
CUBIST to follow such comments or suggestions.
Article 9
Assignment
9.00 Neither party may assign or delegate any of its rights or duties under this
Agreement without the prior written consent of the other, except that either
party may assign this Agreement to a person or party that has purchased or
succeeded to all or substantially all of the business and assets of the assignor
to which the Agreement relates, and that has assumed in writing or by operation
of law such party's obligations under this Agreement, provided that CUBIST shall
be permitted to sub-license its rights hereunder as provided under Section 2.01
above. This Agreement shall inure to the benefit of, and shall be binding upon,
the parties hereto and their respective successors and assigns insofar as this
Agreement is assignable. The assignor of this Agreement shall guarantee the
performance of the obligation of this Agreement by such successor or assigns.
Nothing herein is intended to confer on any person other than the parties hereto
or their respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement.
Article 10
Term And Termination
10.00 The term of this Agreement shall be for the period commencing as of the
Effective Date and ending on the later of (a) the expiration of the last of the
Patents to expire or (b) the end of the tenth year from the date of first sale
in the first Major Market Country where Know-How royalties are due, unless and
until earlier terminated as provided in this Article. Upon the expiration of
this Agreement, CUBIST shall retain a fully paid-up, royalty free license under
the Know-How for purposes consistent with this Agreement and limited to use in
the Field.
21
10.01 If either party defaults in the performance of its material obligations
hereunder, including but not limited to CUBIST's failure to use commercially
reasonable efforts to develop Compound (provided, however, that this shall not
be construed as a guarantee that any Compound will be successfully developed),
and if any such default is not corrected within [ ]* after it shall have been
called to the attention of the defaulting party, in writing, by the other party,
then the other party, at its option, may, in addition to any other remedies it
may have, thereupon terminate this Agreement by giving written notice of
termination to the defaulting party.
10.02 This Agreement may be terminated by either party, on notice, (i) upon the
institution by the other party of insolvency, receivership or bankruptcy
proceedings, (ii) upon the institution of such proceedings against the other
party, which are not dismissed or otherwise resolved in such party's favor
within sixty (60) days thereafter, and (iii) upon the other party's dissolution
or ceasing to do business in the normal course.
10.03 CUBIST may terminate this Agreement at any time, upon thirty (30) days
prior written notice to XXX XXXXX and upon a reasonable determination by CUBIST
that continued development of the Compound hereunder is not commercially
reasonable. [ ]*.
10.04 Termination of this Agreement for any reason shall not result in any
obligation by XXX LILLY to repay any payments made to it by CUBIST prior to such
termination.
10.05 Upon termination of this Agreement for any reason, the sub-licenses shall
be automatically assigned to XXX XXXXX, and XXX XXXXX shall be bound by the
terms of such sub-licenses provided that the sub-licensees continue to perform
in accordance with their respective sublicense agreements. Notwithstanding the
foregoing, XXX XXXXX'x obligations to any such sublicensee shall not be
interpreted to extend beyond any obligations to CUBIST hereunder with respect to
the subject matter of the sub-license.
10.06 Upon termination of this Agreement for any reason, except for termination
caused by material breach by XXX LIILLY, all licenses granted to CUBIST pursuant
to Article 2 shall terminate, Cubist furthermore shall transfer to XXX LILLY all
regulatory filings and regulatory correspondence, patent filings and patent
office correspondence, any and all other clinical and non-clinical data, records
22
and tabulations related to the Compound; and shall execute any and all documents
of such patent offices and/or patent receiving offices, and/or regulatory
agencies, including the US FDA, so as to allow XXX XXXXX to make immediate use
of such data, records, patent applications and/or patents and regulatory
filings. XXX LILLY shall not be obligated to treat such information received
pursuant to this Section 10.06 as Confidential Information and may use such
information, data and know-how for any purpose at XXX XXXXX'x discretion.
If CUBIST terminates this Agreement due to XXX XXXXX'x material breach,
CUBIST's licenses pursuant to Article 2 shall continue for so long as CUBIST
continues to fulfill their payment obligations pursuant to Articles 4 and 5.
10.07 Termination of this Agreement for any reason shall not terminate the
provisions set forth in Article 6 with respect to actions arising with respect
to periods prior to termination, as well as Articles 7, 10, 13, 15, and 17
hereof The obligations of those Articles shall continue in full force and effect
following any such termination.
10.08 Upon termination of this Agreement for any reason, neither party shall be
relieved of obligations with respect to periods prior thereto, including any
obligation to make payments, including but not limited to obligations pursuant
to Articles 4, 5, 6 or 10, or reports regarding sale prior to such termination.
10.09 If CUBIST determines that it will not develop or market Compound in one or
more countries, either by itself or through the efforts of a sublicensee, or if
XXX XXXXX makes written request to CUBIST to develop or sell Compound in one or
more countries and in which countries CUBIST either by itself or through the
efforts of a sublicensee, has taken no action, all rights including rights to
develop, market and sell Compound in that country(ies) shall revert to XXX LILLY
[ ]* after CUBIST receives written notice of XXX XXXXX'x intent to pursue
those rights is received by CUBIST if CUBIST either by itself or through the
efforts of a sublicensee, has taken no action toward such development or
marketing prior to the end of that year.
--------------------------
* Confidential Treatment requested: material has been omitted and filed
separately with the Commission.
23
Article 11
Force Majeure
11.00 If the performance of this Agreement or any obligations hereunder, except
the making of payments, is prevented, restricted or interfered with by reason of
fire or other casualty or accident, earthquake, supplier delay, strikes or labor
disputes, war or other violence, any law, order, proclamation, regulations,
ordinance, demand or requirement of any government agency, or any other act or
condition beyond the reasonable control of the parties hereto ("Event of Force
Majeure"), the party so affected upon giving prompt notice to the other party
shall be excused from such performance to the extent of such prevention,
restriction, or interference; provided that the party so affected shall use its
reasonable best efforts to avoid or remove such causes of nonperformance and
shall continue performance hereunder with the utmost dispatch and that such
party exercises due diligence to overcome such circumstances.
11.01 The party suffering an Event of Force Majeure shall notify the other party
within fifteen (15) days of the occurrence of such Events of Force Majeure and
within thirty (30) days shall furnish the other party with a recovery plan of
action. Without limiting the foregoing, a party suffering an Event of Force
Majeure shall use its reasonable best efforts to limit the impact of the Event
of Force Majeure on such party's performance of this Agreement.
Article 12
Notices
12.00 Any notice required or permitted to be given under this Agreement shall be
in writing and shall be deemed to have been sufficiently given for all purposes
five (5) days after having been mailed by first class certified or registered
mail, postage prepaid or by fax which is confirmed by certified mail. Unless
otherwise specified in writing, the mailing addresses of the parties shall be as
described below.
For XXX XXXXX
XXX XXXXX & COMPANY
Attn: Legal Division
Lilly Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
24
For CUBIST:
Xxxx Xxxxxx
Chief Business Officer
Cubist Pharmaceuticals Incorporated
00 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
with a copy to:
CUBIST's Legal Counsel:
Xxxxxxx Xxxxxx
Xxxxxx & Dodge
Xxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Article 13
Governing Law
13.00 This Agreement shall be governed by and interpreted in accordance with the
laws of the State of Indiana, United States of America, without reference to
conflict of laws principles.
In the event of any action, controversy or claim arising out of or relating to
any provision of this Agreement or the breach, termination or enforceability
thereof, XXX LILLY and CUBIST shall make all efforts to settle those conflicts
amicably between themselves. Should they fail to agree, the parties may assert
any remedy available at law or in equity to enforce its rights under this
Agreement.
Article 14
Partial Validity
14.00 If any provision of this Agreement shall be found or be held to be invalid
or unenforceable by a court of competent jurisdiction in which this Agreement is
being performed, then the meaning of said provision shall be construed, to the
extent feasible, so as to render the provision enforceable, and if no feasible
interpretation would save such provision, it shall be severed from the remainder
of this Agreement, which shall remain in full force and effect. In such event,
the parties shall negotiate, in good faith, a
25
substitute, valid and enforceable provision which most nearly effects the
parties' intent in entering into this Agreement.
Article 15
Confidentiality
15.00 Except as otherwise provided in this Article 15, during the term of this
Agreement and for a period of [ ]* the parties shall maintain the Confidential
Information in confidence and use it only for purposes specifically authorized
under this Agreement. To the extent it is reasonably necessary or appropriate to
fulfill its obligations or exercise its rights under this Agreement: (i) a party
may disclose Confidential Information it is otherwise obligated under this
Article 15 not to disclose to third parties, on a need-to- know basis and on
condition that such entities or persons agree to keep the Confidential
Information confidential for the same time periods and to the same extent as
such party is required to keep the Confidential Information confidential
hereunder; and (ii) a party may disclose such Confidential Information to
government or other regulatory authorities as required by law or statute. The
parties hereto understand and agree that remedies at law may be inadequate to
protect against any breach of any of the provisions of this Article 15 by either
party or their employees, agents, officers or directors or any other person
acting in concert with it or on its behalf Accordingly, each party shall be
entitled to, but not limited to, the granting of injunctive relief by a court of
competent Jurisdiction against any action that constitutes any such breach of
this Article 15.
15.01 Notwithstanding the provisions of Section 15.00 above, CUBIST shall be
free to make disclosures to third parties of Confidential Information of XXX
XXXXX consisting of data regarding the Compound in the Field under circumstances
where, in CUBIST's reasonable business judgment, such disclosures will (i)
further the development and commercialization of the Compound and (ii) not
adversely affect any patent rights of XXX LILLY of which it is aware, provided,
however, that in the case of (a) technical papers disclosing such Confidential
Information, or (b) other disclosures where LILLY's name is used or would
reasonably be implied from the context, CUBIST will provide a copy of the
proposed paper or disclosure to XXX XXXXX at least [ ]* in advance of
publication and will not proceed with such publication or
--------------------------
* Confidential Treatment requested: material has been omitted and filed
separately with the Commission.
26
disclosure without the consent of XXX LILLY, which consent will not be
unreasonably withheld; and further, provided, that in the case of all other
written disclosures of Confidential Information, CUBIST will provide to XXX
XXXXX a copy of the material incorporating such disclosure as promptly as is
practicable, and in no event later than one (1) week after the disclosure takes
place.
15.02 XXX LILLY will make no public pronouncements referencing this Agreement or
CUBIST without CUBIST's express written approval. No license or rights are
granted to either party to use the name of the other without express written
approval. CUBIST's first public announcement of this Agreement, attached hereto
as Exhibit 4, may be released by CUBIST upon full execution of this Agreement.
Except as provided by Exhibit 4, CUBIST shall not release any information
regarding the existence or terms of this Agreement that is not required by law.
Article 16
Entire Agreement
16.00 The terms and conditions herein contained, including the Exhibits hereto,
constitute the entire agreement and understanding of the parties relating to the
subject matter of this Agreement and supersedes all previous communications,
proposals, representations, and agreements, whether oral or written, relating to
the subject matter of this Agreement.
No agreement or understanding varying or extending the same shall be binding
upon either party hereto unless in a written document which expressly refers to
this Agreement and which is signed by both parties to be bound thereby.
Article 17
Miscellaneous
17.00 It is understood and agreed that each party shall have the status of an
independent contractor under this Agreement and that nothing in this Agreement
shall be construed as authorization for either XXX XXXXX or CUBIST to act as
agent for the other. Nothing contained herein or done in pursuance of this
Agreement shall constitute either party the agent of the other party for any
purpose or in any sense whatsoever, or constitute the parties as partners or
joint venturers.
17.01 The failure of either party to enforce at any time any of the provisions
of this Agreement, or the failure to require at any time
27
performance by the other party of any of the provisions of this Agreement, shall
in no way be construed to be a present or future waiver of such provisions, nor
in any way affect the validity of either party to enforce each and every such
provision thereafter.
17.02 The headings set forth at the beginning of the various Articles of this
Agreement are for reference and convenience and shall not affect the meanings of
the provisions of this Agreement.
17.03 During the term of this Agreement, XXX LILLY shall not, directly or
indirectly through or in connection with any third party, conduct research,
develop, make or market Compound for use in the Field.
17.04 This Agreement may not be amended, supplemented, or otherwise modified
except by an instrument in writing signed by both parties.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed
in duplicate by duly authorized officers or representatives as of the date first
above written.
XXX XXXXX & COMPANY CUBIST PHARMACEUTICALS
INCORPORATED
By:/s/ Xxxxxxx X. Xxxxx By:/s/ Xxxx Xxxxxx
------------------------------- ---------------------------------
Xxxxxxx X. Xxxxx
President, Infectious Diseases Print name:Xxxx Xxxxxx
Business Unit -------------------------
Title:Vice President and Chief
------------------------------
Business Officer
----------------
