CONFIDENTIAL EXECUTION COPY
EXHIBIT 10.55
LICENSE AGREEMENT
BETWEEN
ZYMOGENETICS, INC.
AND
AURORA BIOSCIENCES CORPORATION
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LICENSE AGREEMENT
This License Agreement (the "Agreement") is made this 17th day of December 1999
(the "Effective Date"), by and between ZYMOGENETICS, INC. ("ZymoGenetics"), a
Washington corporation with principal offices at 0000 Xxxxxxxx Xxxxxx Xxxx,
Xxxxxxx, XX 00000 and AURORA BIOSCIENCES CORPORATION ("Aurora"), a Delaware
corporation with principal offices at 00000 Xxxxxxxxx Xxxx, Xxx Xxxxx,
Xxxxxxxxxx 00000 to license certain technology.
RECITALS
WHEREAS, Aurora has the right to sublicense the Aurora Patents and Stanford
Patents (both defined herein) relating to fluorescent proteins further described
herein, and desires to license the same to ZymoGenetics;
WHEREAS, ZymoGenetics seeks to obtain certain Materials, license rights under
the Aurora Patents and Stanford Patents *** according to the terms contained
herein (the "Agreement");
Now, therefore, in consideration of the foregoing and the covenants and premises
contained herein the parties agree as follows:
1. DEFINITIONS
As used herein, the following terms shall have the following meanings:
1.1 "AURORA MUTANT GFP" means ***.
1.2 "AURORA PATENTS" means U.S. Patent Nos. 5,625,048, 5,777,079 and
the patent applications listed on Exhibit A and *** U.S. patents
issuing therefrom.
1.3 "AURORA TECHNOLOGY" means the *** listed in Exhibit C and Aurora's
proprietary technical manual for the same.
1.4 "CONFIDENTIAL INFORMATION" means all information, data, and
documentation received by either party from the other party
pursuant to this Agreement, subject to the exceptions set forth in
Section 8.
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1.5 "CONTROL" or "CONTROLLED" means, in the context of intellectual
property, right of a party to grant a license or sublicense in
accordance with the terms of this Agreement, and without violating
the terms of any agreement by such party with any Third Party.
1.6 "EXCLUDED FIELDS" means ***.
1.7 "FIELD" means:
(1) ***;
(2) ***
(3) ***;
(4) use of Aurora Mutant GFP for ***; and
(5) use of Aurora Mutant GFP ***.
Items (1)-(5) are ***.
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1.8 "MATERIALS" means any reagents, promoters, enhancers, vectors,
plasmids, genes, polynucleotides, cells, proteins and fragments
thereof, peptides, antigens, antibodies, antagonists, agonists,
inhibitors and chemicals.
1.9 ***.
1.10 "SCREENING" means ***.
1.11 "STANFORD AGREEMENT" means that certain exclusive license agreement
between Aurora and The Board of Trustees of the Xxxxxx Xxxxxxxx
Junior University ("Stanford"), dated as ***.
1.12 "STANFORD LICENSED PRODUCT(S)" means any product or process, or
part thereof, in the Field, the manufacture, use or sale of which
is covered by a valid claim of an issued, unexpired Stanford
Patent and shall be presumed to be valid unless and until it has
been held to be invalid by a final judgment of a court of
competent jurisdiction from which no appeal can be or is taken.
1.13 "STANFORD PATENTS" means U.S. Patent No. 5,807,387, 5,968,738 and
the patent applications listed on Exhibit B and *** U.S. patents
issuing therefrom.
1.14 "TARGET" means ***.
1.15 "TERRITORY" means the United States.
1.16 "THIRD PARTY" means any entity other than (i) Aurora and (ii)
ZymoGenetics.
1.17 "TERM" has the meaning set forth in Section 9.1.
1.18 "ZYMOGENETICS PRODUCT" means ***.
2. LICENSES AND SUPPLY
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2.1 GRANT UNDER THE AURORA PATENTS, STANFORD PATENTS AND AURORA
TECHNOLOGY
2.1.1 NON-EXCLUSIVE LICENSE TO AURORA PATENTS. Aurora hereby
grants to ZymoGenetics, ***.
2.1.2 NON-EXCLUSIVE LICENSE TO STANFORD PATENTS. Aurora hereby
grants to ZymoGenetics, ***.
2.1.3 NON-EXCLUSIVE LICENSE TO AURORA TECHNOLOGY. Aurora hereby
grants to ZymoGenetics, ***.
2.1.4 LIMITATIONS. Except as otherwise expressly provided in this
Agreement, nothing in this Agreement is intended to convey
or transfer ownership by one party to the other of any
rights, title or interest in any Confidential Information,
technology (e.g. ***), copyrights or patent rights owned or
Controlled by a party. Except as expressly provided for in
this Agreement, nothing in this Agreement shall be
construed as a license or sublicense by one party to the
other of any rights in any technology, copyrights, or
patent rights owned or Controlled by a party. All rights
not expressly licensed by Aurora are retained by Aurora.
The Aurora Mutant GFP *** are *** within the scope *** (i)
***; (ii) ***; or (iii) ***. The license rights granted to
ZymoGenetics in Section *** do not include: (a) ***
2.2 SUPPLY. Aurora shall deliver the Aurora Technology to ZymoGenetics
within *** business days after the Effective Date in the
quantities described on Exhibit C.
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3. COMPENSATION
3.1 TECHNOLOGY ACCESS FEE. As consideration for the Aurora Technology
provided to ZymoGenetics pursuant to ***, ZymoGenetics shall pay
to Aurora within *** after the Effective Date, a *** Dollars
($***).
3.2 ***. As consideration for the *** provided to ZymoGenetics
pursuant to ***, ZymoGenetics shall pay to Aurora within *** after
the Effective Date, *** fee of *** Dollars ($***). ***.
3.3 ANNUAL MAINTENANCE FEE. As consideration for the rights granted in
Section ***, ZymoGenetics will pay to Aurora a *** fee as payment
for the upcoming year *** Dollars ($***) on the first anniversary
of the Effective Date and then each anniversary of the Effective
Date thereafter.
4. PAYMENTS AND MILESTONES
4.1 CURRENCY OF PAYMENT. All payments to be made under this Agreement
shall be paid in U.S. dollars by wire transfer or other mutually
acceptable means to a bank account designated by Aurora. Wiring
instructions for payments are as follows:
***
4.2 MILESTONES. When any ZymoGenetics Product reaches any of the
following milestones, ZymoGenetics shall pay to Aurora the
corresponding non-creditable, non-refundable milestone payment; ***
Milestone Payment
---------- -------
1. *** $ ***
2. *** $ ***
3. *** $ ***
4. ***
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4.2.1 PAYMENT AND REPORTING. The milestones due under this
Section 4 shall be paid within *** days after the end of
each calendar quarter period in which such milestones are
reached for each ZymoGenetics Product or for a ZymoGenetics
Product earned and not previously reported.
4.2.2 TRACKING. ZymoGenetics Products will be recorded and stored
by ZymoGenetics using its customary means and in a computer
searchable database on a storage device. Records of any ***
(including, ***) that would *** subject to additional ***
will be *** file or database that ***. ZymoGenetics shall
keep appropriate records of ZymoGenetics Products
discovered, identified or profiled under the rights granted
herein ***. All the records described in this Section are
collectively referred to as tracking records (the "Tracking
Records"). *** ZymoGenetics, and subject to a confidential
relationship with ZymoGenetics *** Tracking Records ***
year upon reasonable prior written request *** milestone
under ***. The Tracking Records shall be securely retained
according to ZymoGenetics' *** for no less than *** from
the date a ***. Until all of the milestones have been paid,
*** that may be used to calculate milestones. Such reports
shall be sent to the attention of SVP, Intellectual
Property via first class mail, overnight courier or
facsimile.
4.2.3 TRADE SECRET MILESTONES. The parties acknowledge that a
significant value contributed by Aurora under this
Agreement is the ***. Additionally, the parties acknowledge
that Aurora may not own or Control patent applications or
patents covering the manufacture, offer for sale, sale, use
or importation of a particular product. ZymoGenetics
acknowledges and agrees that the value it receives
hereunder is in ***. ***
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*** patent application or patent within the Aurora Patents
or Stanford Patents.
4.3 ***. If ZymoGenetics makes a payment to *** under such Third Party
patent rights, biological materials or know-how, *** ZymoGenetics,
*** payments in annual maintenance fees or milestones, described
in Sections *** respectively, to Aurora totaling *** dollars
($***), ZymoGenetics *** made to *** amount payable under Section
*** dollars ($***) ***.
5. COVENANTS
5.1 AURORA'S COVENANT. Subject to ZymoGenetics' obligations in
accordance with Section ***
5.2 COVENANTS OF ZYMOGENETICS:
5.2.1 ***
5.2.2 ***
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5.2.3 Except as expressly licensed herein, ZymoGenetics covenants
not to make or use Aurora Technology or polynucleotides or
proteins under the Aurora Patents or Stanford Patents. ***
6. REPRESENTATIONS AND WARRANTIES
6.1 REPRESENTATIONS AND WARRANTIES OF AURORA AND ZYMOGENETICS
Each Party hereby represents and warrants:
CORPORATE POWER. Such party is duly organized and validly
existing and in good standing under the laws of the state of its
incorporation and has all requisite corporate power and authority
to enter into this Agreement and to carry out the provisions
hereof.
DUE AUTHORIZATION. Such party is duly authorized to execute and
deliver this Agreement and to perform its obligations hereunder.
BINDING AGREEMENT. This Agreement is a legal and valid obligation
binding upon it and enforceable in accordance with its terms. The
execution, delivery and performance of this Agreement by such
party does not conflict with any agreement, instrument or
understanding, oral or written, to which it is a party or by
which it may be bound, nor violate any law or regulation of any
court, governmental body or administrative or other agency having
jurisdiction over it.
6.2 REPRESENTATIONS AND WARRANTIES OF AURORA. To the best knowledge of
Aurora, as of the Effective Date, Aurora represents and warrants
to ZymoGenetics, except as otherwise provided or disclosed herein:
(i) it Controls under valid licenses or by virtue of ownership all
right, title and interest in and to the Aurora Patents and
Stanford Patents and Aurora Technology licensed hereunder; (ii)
*** (iii) ***; and (iv) ***.
7. NEGATION OF WARRANTIES
7.1 Except as expressly set forth in this Agreement, Aurora MAKES NO
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REPRESENTATIONS AND EXTENDS NO WARRANTIES OF ANY KIND, EITHER
EXPRESS OR IMPLIED. THERE ARE NO EXPRESS OR IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THAT THE
USE OF THE AURORA TECHNOLOGY WILL NOT INFRINGE ANY PATENT,
COPYRIGHT, TRADEMARK, OR OTHER RIGHTS OR ANY OTHER EXPRESS OR
IMPLIED WARRANTIES.
8. CONFIDENTIALITY
8.1 CONFIDENTIAL INFORMATION. Except as expressly provided herein, the
parties agree that, for the Term and five (5) years thereafter,
the receiving party shall keep completely confidential and shall
not publish or otherwise disclose to another party and shall not
use for any purpose other than to perform the purposes
contemplated by this Agreement any Confidential Information
furnished to it by the disclosing party hereto pursuant to this
Agreement, except that to the extent that it can be established by
the receiving party by written evidence that such Confidential
Information:
was already known to the receiving party, other than under an
obligation of confidentiality, at the time of disclosure;
was generally available to the public or otherwise part of the
public domain at the time of its disclosure to the receiving party;
became generally available to the public or otherwise part of the
public domain after its disclosure and other than through any act
or omission of the receiving party in breach of this Agreement;
or was lawfully disclosed to the receiving party by a person other
than a party hereto, or was independently developed by the
receiving party.
8.2 PERMITTED USE AND DISCLOSURES. Each party hereto may use or
disclose Confidential Information disclosed to it by the other
party to the extent such use or disclosure is reasonably necessary
in filing or prosecuting patent applications, prosecuting or
defending litigation, complying with applicable law, governmental
regulation or court order, submitting information to tax or other
governmental authorities, making a permitted sublicense or
otherwise exercising its rights hereunder, provided that if a
party is required to make any such disclosure of another party's
Confidential Information, other than pursuant to a confidentiality
agreement, it will give reasonable advance notice to the latter
party of such disclosure and, save to the extent inappropriate in
the case of patent applications, will use reasonable efforts to
secure confidential treatment of such information prior to its
disclosure (whether through protective orders or otherwise).
8.3 CONFIDENTIAL TERMS. Except as expressly provided herein, each
party agrees not to disclose
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*** to another party without the consent of the other party, not
to be unreasonably withheld; provided, however, each party
reserves the right to make reasonable disclosures (including the
mutually agreed redaction of material or financial terms) as
required by securities or other applicable laws, or to actual or
prospective investors or corporate partners, or to accountants,
attorneys and other professional advisors on a need-to-know basis
under circumstances that reasonably ensure the confidentiality
thereof, or to the extent required by law. A party shall have the
further right to disclose the material financial terms of this
Agreement under strictures of confidentiality to any potential
acquirer, bona fide potential strategic partner or collaborator,
merger partner, bank, venture capital firm, or other financial
institution to obtain financing. If any Confidential Information
is to become public information by disclosure of the disclosing
party (except by way of issuance of a patent), the disclosing
party must obtain the written consent of the non-disclosing party
in order to disclose the information or allow the non-disclosing
party to obtain protection of the Confidential Information, if
necessary.
9. TERMINATION
9.1 TERM. This Agreement shall continue until the date the last patent
of the Aurora Patents or Stanford Patents expires ("Term").
9.2 TERMINATION FOR MATERIAL BREACH. Either party shall have the right
to terminate this Agreement at any time for a material breach of
this Agreement by the other party, provided that the non-breaching
party shall have first given thirty (30) days prior written notice
(ten (10) days in the event of non-payment of any amounts due
under this Agreement) to the breaching party describing such
breach and stating the non-breaching party's intention to
terminate this Agreement if such breach remains uncured, and the
breaching party thereafter fails to cure same within a reasonable
time. In no case will a party be liable for punitive or
consequential damages.
9.3 TERMINATION BY ZYMOGENETICS. ZymoGenetics may, at anytime after
the date of the *** anniversary of the Effective Date, terminate
the license rights granted in Section *** upon *** days written
notice to Aurora and ***.
9.4 Any termination pursuant to Section 9.2 or 9.3 shall not relieve
ZymoGenetics of any obligation or liability accrued hereunder
prior to such termination, including the obligation to pay
applicable license fees and milestones. The licenses granted to
ZymoGenetics under this Agreement shall terminate in the event the
Agreement is terminated or otherwise
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expired. Upon termination of the Agreement all licenses granted
will thereby terminate and Materials with an Aurora Mutant GFP
will be destroyed or returned to Aurora at the direction of Aurora
within sixty (60) days.
10. MISCELLANEOUS
10.1 BINDING EFFECT; ASSIGNMENT. This Agreement shall be binding upon
the parties' respective successors and permitted assigns.
ZymoGenetics may not assign or otherwise transfer this Agreement
or any of its rights or obligations hereunder without the prior
written consent of Aurora *** and any such attempted assignment or
other transfer shall be void. Aurora may assign this Agreement,
upon notice to ZymoGenetics.
10.2 EFFECT OF WAIVER. No waiver of any default, condition, provisions
or breach of this Agreement shall be deemed to imply or constitute
a waiver of any other like default, condition, provision or breach
of this Agreement.
10.3 LIMITATION OF LIABILITY. NEITHER PARTY SHALL BE LIABLE TO THE
OTHER FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTIAL, OR INDIRECT
DAMAGES ARISING OUT OF THIS AGREEMENT, HOWEVER CAUSED, UNDER ANY
THEORY OF LIABILITY.
10.4 INDEMNIFICATION. ZymoGenetics shall indemnify, hold harmless and
defend Aurora, its officers, employees, and agents (collectively,
the "Indemnities") against any and all ***
10.5 FORCE MAJEURE. Neither party shall lose any rights hereunder or be
liable to the other party for damages or losses on account of
failure of performance by the defaulting party if the failure is
occasioned by war, strike, fire, act of God(s), el nino, la nina,
earthquake, flood, lockout, embargo, governmental acts or orders
or restrictions, failure of suppliers, or any other reason where
failure to perform is beyond the reasonable control and not caused
by the gross negligence or intentional conduct or misconduct of
the nonperforming party, and
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such party has exerted all reasonable efforts to avoid or remedy
such force majeure; provided, however, that in no event shall a
party be required to settle any labor dispute or disturbance.
10.6 AMENDMENT. No modification, supplement to or waiver of this
Agreement or any Addendum hereto or any of their provisions shall
be binding upon a party hereto unless made in writing and duly
signed by an authorized representative of both ZymoGenetics and
Aurora. In no event may the terms of this Agreement be changed,
deleted, supplemented or waived by any notice, purchase order,
receipt, acceptance, xxxx of lading or other similar form of
document. A failure of either party to exercise any right or
remedy hereunder, in whole or in part, or on one or more
occasions, shall not be deemed either a waiver of such right or
remedy to the extent not exercised, or of any other right or
remedy, on such occasion or a waiver of any right or remedy on any
succeeding occasion.
10.7 ENTIRE AGREEMENT. This Agreement, and each Exhibit attached
hereto, and each supplemental written agreement contemplated
hereunder, sets forth the entire understanding and agreement of
the parties as to the subject matter thereof, and there are no
other understandings, representations or promises, written or
verbal, not set forth herein or on which either party has relied.
If any provisions of any such addendum or supplemental written
agreement conflict with any provisions set forth in this
Agreement, the provisions of this Agreement shall take precedence,
unless such addendum or supplemental written agreement expressly
refers to the specific provision(s) of this Agreement that it is
intended to replace or modify (and which shall be limited in force
and effect to such addendum or supplemental written agreement
only).
10.8 NOTICES. All Notices under this Agreement shall be given in
writing and shall be addressed to the parties at the following
addresses:
FOR ZYMOGENETICS:
-----------------
Senior Director, Legal Affairs
ZymoGenetics, Inc.
0000 Xxxxxxxx Xxxxxx Xxxx
Xxxxxxx, XX 00000
***
COPIES TO:
Xxxxx Xxxxxx, Ph.D.
CEO and President
ZymoGenetics, Inc.
0000 Xxxxxxxx Xxxxxx Xxxx
Xxxxxxx, XX 00000
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***
FOR AURORA:
-----------
Stuart X. X. Xxxxxxxxx, Ph.D., M.B.A.
CEO and President
Aurora Biosciences Corporation
00000 Xxxxxxxxx Xxxx
Xxx Xxxxx, XX. 00000
COPIES TO:
Xxxx X. Xxxxxxxx
Chief Knowledge Officer
Aurora Biosciences Corporation
00000 Xxxxxxxxx Xxxx
Xxx Xxxxx, XX. 00000
Notices shall be in writing and shall be deemed delivered when
received, if delivered by a courier, or if by facsimile, with
confirmation copy or on the second business day following mailing,
if sent by first-class certified or registered mail, postage
prepaid. Notice delivered upon receipt of fax (confirmation copy
follows to support date of notice).
10.9 ARBITRATION. The parties recognize that disputes as to certain
matters may from time to time arise during the term of this
Agreement which relate to either party's rights and/or obligations
hereunder, including, but not limited to attempted termination of
the Agreement. It is the objective of the parties to establish
procedures to facilitate the resolution of disputes arising under
this Agreement in an expedient manner by mutual cooperation and
without resort to arbitration. The parties agree that prior to any
arbitration concerning this Agreement, *** in a good faith effort
to resolve any disputes concerning this Agreement. Within *** days
of a formal request by either party to the other, any party may,
by written notice to the other, have such dispute referred to
their respective officers designated or their successors, for
attempted resolution by good faith negotiations, such good faith
negotiations to begin within *** days after such notice is
received and not to be continued for more than *** days after
initiation of such negotiations unless the parties mutually agree
to an extension thereto. Except as otherwise provided specifically
herein, any controversy or claim under this Agreement shall be
solely settled by arbitration by one arbitrator pursuant to the
Commercial Arbitration Rules of the American Arbitration
Association (the "Association"); provided that the parties shall
first use their best efforts to resolve such dispute by
negotiation. Arbitration shall be initiated by a written request
for arbitration proceedings by one party to the other after such
*** day good faith negotiation
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period. The arbitration shall be conducted ***. The arbitrator
shall be selected by the joint agreement of the parties, but if
they do not so agree within *** days of the date of a request for
arbitration, the selection shall be made pursuant to the rules of
the Association. The decision reached by the arbitrator shall be
conclusive and binding upon the parties hereto and may be filed
with the clerk of any court of competent jurisdiction, and a
judgment confirming such decision may, if desired by any party to
the arbitration, be entered in such court. Each of the parties
shall pay its own expenses of arbitration and the expenses of the
arbitrator(s) shall be equally shared; provided, however, that if
in the opinion of the arbitrator(s) any claim hereunder or any
defense or objection thereto was unreasonable, the arbitrator(s)
may assess, as part of the award, all or any part of the
arbitration expenses (including reasonable attorneys' fees)
against the party raising such unreasonable claim, defense or
objection. Nothing herein set forth shall prevent the parties from
settling any dispute by mutual agreement at any time.
Notwithstanding anything to the contrary in this Section 10,
either party may seek immediate injunctive or other interim relief
from any court of competent jurisdiction with respect to
enforcement and protection of the patent rights, copyrights,
trademarks, or other intellectual property rights owned or
Controlled by such party. For clarity, this arbitration provision,
Section ***, shall not apply to any claim of infringement or a
lawsuit to determine the enforceability or validity of
intellectual property, including patents. In no event shall a
demand for arbitration be made after the date when the institution
of a legal or equitable proceeding based on such claim, dispute or
other matter in question would be barred by the applicable statute
of limitations.
10.10 GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of ***.
10.11 SEVERABILITY AND SURVIVAL. This Agreement is intended to be
severable. If any provision(s) of this Agreement are or become
invalid, are ruled illegal by a court of competent jurisdiction or
are deemed unenforceable under the current applicable law from
time to time in effect during the term hereof, it is the intention
of the parties that the remainder of the Agreement shall not be
affected thereby and shall continue to be construed to the maximum
extent permitted by law at such time. It is further the intention
of the parties that in lieu of each such provision which is
invalid, illegal, or unenforceable, there shall be substituted or
added as part of this Agreement by mutual agreement of the parties
or arbitration, a provision which shall be as similar as possible,
in economic and business objectives as intended by the parties to
such invalid, illegal or unenforceable provision, but shall be
valid, legal and enforceable. Unless expressly stated otherwise,
the provision of Sections *** and any other provision intended by
its meaning to survive, will survive the expiration or any other
termination of this Agreement.
10.12 HEADINGS. Captions and paragraph headings are for convenience
only and shall not form
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an interpretative part of this Agreement. Unless otherwise
specifically provided, all references to a Section incorporate all
Sections or subsections thereunder. This Agreement shall be
construed without regard to the drafting or non-drafting party
hereto and may be executed in two or more counterparts, each of
which will be deemed an original and the same instrument.
Counterparts may be signed and delivered by facsimile, each of
which shall be binding when sent, and in each case an original
shall be sent via overnight courier. ***.
IN WITNESS WHEREOF, Aurora and ZymoGenetics have executed, by duly authorized
representatives, this Agreement.
For ZymoGenetics, Inc.
By:/s/ Xxxxx Xxxxxx Date: 12/17/99
-------------------------- -------------------------
Name: Xxxxx Xxxxxx
------------------------
Title: President
-----------------------
For Aurora Biosciences Corporation
By: /s/ Xxxx Xxxxxxxx Date: 12/16/99
--------------------------- -------------------------
Name: Xxxx Xxxxxxxx
-------------------------
Title: CKO
------------------------
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EXHIBIT A
AURORA PATENTS
***
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EXHIBIT B
STANFORD PATENTS
***
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***
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EXHIBIT C
***
***
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