Exhibit 4.9 Agreement, dated March 23, 2001, between Gemini Genomics UK
Limited and CuraGen Corporation
DATED 23 MARCH 2001
GEMINI GENOMICS UK LIMITED
AND
CURAGEN CORPORATION
---------------------------------
AGREEMENT
RELATING TO PROVISION OF SAMPLES
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XXXXXX & XXXXXX
TOWER 42
00 XXX XXXXX XXXXXX
XXXXXX XX0X 0XX
Confidential Treatment Requested and the Redacted Material
has been separately filed with the Commission.
TABLE OF CONTENTS
Page No.
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1. DEFINITIONS AND INTERPRETATION........................................3
2. PROVISION OF DNA SAMPLES..............................................7
3. FEES..................................................................7
4. INTELLECTUAL PROPERTY.................................................7
5. WARRANTIES, LIABILITY AND INDEMNITY...................................8
6. CONFIDENTIALITY.......................................................8
7. MISCELLANEOUS........................................................10
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AGREEMENT
THIS AGREEMENT is made the 23d day of March 2001
BETWEEN:
(1) GEMINI GENOMICS UK LIMITED whose principal place of business is at 000
Xxxxxxx Xxxx, Xxxxxx Xxxx, Xxxxxxxxx XX0 XXX ("Xxxxxx"); and
(2) CURAGEN CORPORATION whose principal place of business is at 000 Xxxx
Xxxxx Xxxxx, Xxx Xxxxx, XX, XXX ("CuraGen").
WHEREAS:
(A) Gemini has collected a broad range of DNA and clinical data from human
populations across certain disease areas which can be used to identify
variations to specific genes and to determine the clinical relevance of
genes with unknown function.
(B) CuraGen wishes to obtain certain DNA samples and associated clinical
data from Gemini and Gemini has agreed to provide such samples on the
terms set out herein.
WHO HAVE AGREED AS FOLLOWS:
DEFINITIONS AND INTERPRETATION
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement and in the Schedules to this Agreement the
following words and phrases shall have the following meanings
unless the context requires otherwise.
1.1.1 "AFFILIATE" - any company, partnership or other
entity which directly or indirectly Controls, is
Controlled by or is under common Control with, either
Party including as a Subsidiary or Holding Company;
1.1.2 "AGREEMENT" - this agreement and any and all
schedules, appendices and other addenda to it as may
be varied from time to time in accordance with the
provisions of this Agreement;
1.1.3 "[***] SAMPLES" - the DNA Samples derived from [***]
twins with a [***] as set out in Schedule 1;
1.1.4 "BUSINESS DAY" - 9.30 am to 5.30 pm on a day other
than a Saturday, Sunday, bank or other public holiday
in England and Wales or the USA;
1.1.5 "CLINICAL DATA" - the phenotypic data in Gemini's
possession and control in each case relating to the
[***] Samples or the [***] Samples and provided by
Gemini to CuraGen pursuant to Clause 2
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including, without limitation, the data described on
Schedules I and 2 attached hereto;
1.1.6 "COMPETENT AUTHORITY" - any local or national agency,
authority, department, inspectorate, minister,
ministry official or public or statutory person
(whether autonomous or not) of or of any government
of any country having jurisdiction over the Agreement
or any of the Parties or over the development or
marketing of medicinal products including the
European Commission, The Court of first instance and
the European Court of Justice;
1.1.7 "CONFIDENTIAL INFORMATION" - any trade secrets, Know
How, intellectual property rights or confidential
information relating to the business affairs or
finances of one of the other Parties supplied or
otherwise made available or coming into their
possession in relation to this Agreement (it being
understood that the Sample Results shall be
Confidential Information of CuraGen for purposes of
this Agreement);
1.1.8 "CONTROL" - means the ownership of more than 50% of
the issued share capital or the legal power to direct
or cause the direction of the general management and
policies of the Party in question;
1.1.9 "DNA SAMPLES" - those clinical samples of human DNA
in Gemini's possession and control which are provided
by Gemini pursuant to Clause 2;
1.1.10 "DOCUMENTS" - paper, notebooks, books, files,
ledgers, records, tapes, discs, diskettes, CDROM and
any other media on which Know How can be permanently
stored or recorded;
1.1.11 "FORCE MAJEURE" - in relation to any Party any event
or circumstance which is beyond the reasonable
control of that Party which event that Party could
not reasonably be expected to have taken into account
at the date of this Agreement and which results in or
causes the failure of that Party to perform any or
all of its obligations under this Agreement including
act of God, lightning, fire, storm, flood,
earthquake, accumulation of snow or ice, lack of
water arising from weather or environmental problems,
strike, lockout or other industrial disturbance, act
of the public enemy, war declared or undeclared,
threat of war, terrorist act, blockade, revolution,
riot insurrection, civil commotion , public
demonstration, sabotage, act of vandalism prevention
from or hindrance in obtaining in any materials,
energy or other supplies, explosion, fault or failure
of plant or machinery (which could not have been
prevented by Good Industry Practice), governmental
restraint, act of legislature and directive or
requirement of a Competent Authority governing either
Party provided that lack of
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funds shall not be interpreted as a cause beyond the
reasonable control of that Party;
1.1.12 "KNOW HOW" - unpatented technical and other
information which is not in the public domain
including, ideas, concepts, inventions, discoveries,
data, formulae, specifications, information relating
to material, procedures for experiments and tests and
results of experimentation and testing, results or
research development including laboratory records,
clinical trial data, case report forins, data
analyses, reports or summaries and information
contained in submissions to and information from
ethical committees and Competent Authorities;
1.1.13 "MATERIAL" - Documents and any chemical or biological
substances including any:-
(a) organic or inorganic element or compound;
(b) nucleotide or nucleotide sequence including DNA
and RNA sequence;
(c) gene;
(d) vector or construct including plasmids, phages or
viruses;
(e) host organism including bacteria, fungi, algae,
protozoa and hybridomas;
(f) eukaryotic or prokaryotic cell line or expression
system or any development strain or product of
that cell line or expression system;
(g) protein including any peptide or amino acid
sequence, enzyme, antibody or protein conferring
target properties and any fragment of a protein
or a peptide enzyme or antibody;
(h) drug or pro-drug;
(i) assay or reagent; or any other genetic or
biologic material or micro-organism;
multi-cellular plants;
(j) data for the derivation of molecular structures
including NMR spectra, X Ray diffraction
patterns, and other primary experimental
information, assignments and other calculations,
required for determination of the structure, and
co-ordinates of the derived molecular structure;
(k) computer programmes or algorithms.
1.1.14 "[***] SAMPLES" - the DNA Samples derived from [***]
case and control subjects;
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1.1.15 "PARTIES" - Gemini and CuraGen and "PARTY" means
either of them;
1.1.16 "PATENT RIGHTS" - patent applications or patents,
author certificates, inventor certificates, utility
certificates, improvement patents and models and
certificates of addition and all foreign counterparts
of them and includes any divisions, renewals,
continuations, continuations-in-part, extensions,
reissues, substitutions, confirmations,
registrations, revalidation or additions of or to
them, as well as any supplementary protection
certificate in respect of them;
1.1.17 "SAMPLE RESULTS" - any and all results (including,
without limitation, all Patent Rights, Know-How and
Material) which are created, conceived or reduced to
practice by CuraGen during the term of this
Agreement through its use of the Samples and/or the
Clinical Data;
1.1.18 "SAMPLES" - the [***] of each of the [***] Samples
and the [***] Samples;
1.1.19 "SUBSIDIARY OR HOLDING COMPANY" - shall have the
meaning ascribed to those expressions by Section 736
of the Companies Xxx 0000 (as amended);
1.2 In this Agreement:-
1.2.1 unless the context otherwise requires all references
to a particular Clause, paragraph or Schedule shall
be a reference to that Clause, paragraph or Schedule,
in or to this Agreement as it may be amended from
time to time pursuant to this Agreement;
1.2.2 the table of contents and headings are inserted for
convenience only and shall be ignored in construing
this Agreement;
1.2.3 unless the contrary intention appears words importing
the masculine gender shall include the feminine and
vice versa and words in the singular include the
plural and vice versa;
1.2.4 unless the contrary intention appears words denoting
persons shall include any individual, partnership,
company, corporation, joint venture, trust,
association, organisational or other entity, in each
case whether or not having separate legal
personality;
1.2.5 reference to the words "include" or "including" are
to be construed without limitation to the generality
of the preceding words; and
1.2.6 reference to any statute or regulation includes any
modification or re-enactment of that statute or
regulation.
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2. PROVISION OF DNA SAMPLES
2.1 By [***] Gemini shall provide CuraGen with the Samples and
associated Clinical Data relating to the Samples.
2.2 CuraGen shall use the Samples for determining the clinical
relevance of genes only and shall not use the Samples for the
production or sale of any products or for any clinical use or
any use in humans. For the avoidance of doubt, CuraGen may use
the Sample Results without restriction.
2.3 The provision of the Samples and associated Clinical Data by
Gemini to CuraGen pursuant to this Agreement shall be subject to
any applicable legal and/or regulatory requirements.
2.4 The Samples and associated Clinical Data shall be kept in a
secure environment at CuraGen's premises. CuraGen shall use
commercially reasonable efforts to protect the Samples and
associated Clinical Data against theft, damage, loss, misuse
and/or unauthorised access.
2.5 CuraGen will not permit the Samples or associated Clinical Data
to come into the possession or control of any person other than
employees, agents, directors, consultants or professional
advisors of CuraGen who are bound in writing to obligations
comparable to those set forth in Clause 6.
2.6 In handling the Samples, CuraGen shall comply with all local
laws and requirements.
2.7 The Samples are provided by Gemini to CuraGen on a non-exclusive
basis and Gemini shall be free to use and to supply to third
parties such quantities of any samples (including samples from
the same set of individuals from whom the Samples are derived)
as Gemini may in its sole discretion decide.
3. FEES
3.1 In consideration of the provision of the Samples pursuant to
Clause 2, CuraGen shall pay to Gemini a fee of US [***] per
Sample. CuraGen shall pay the fees per sample within fourteen
(14) days of receipt of the Samples and associated Clinical Data
supported by an appropriately detailed invoice from Gemini
3.2 Payments to Gemini under this Agreement shall be made by
electronic transfer to such bank account of Gemini as Gemini may
notify to CuraGen.
4. INTELLECTUAL PROPERTY
4.1 Any and all Sample Results generated by CuraGen shall vest in
and be owned by CuraGen.
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4.2 Gemini shall at the request of the CuraGen execute all documents
and do all other acts and things as may be reasonably required
in order to vest fully and effectively all rights in and to the
Sample Results in CuraGen.
4.3 Except as expressly set out herein no rights or licenses are
granted by either Party hereunder.
5. WARRANTIES, LIABILITY AND INDEMNITY
5.1 Each Party represents and warrants to the other Party that:
5.1.1 it has legal power, authority and right to enter into
this Agreement and to perform its respective obligations
in this Agreement; and
5.1.2 it is not at the date of this Agreement a party to any
agreement, arrangement or understanding with any third
party which in any significant way prevents it from
fulfilling any of its material obligations under the
terms of this Agreement.
5.1.3 Gemini hereby represents and warrants to CuraGen:
5.1.3.1 that the Clinical Data contains the
information on Schedule I or 2 for each
patient providing DNA Samples and
5.1.3.2. that it has obtained, and will continue to
obtain, informed consent from all patients
and human subject volunteers that provide
Clinical Data and materials and/or samples
comprising the DNA Samples.
5.2 Except as is expressly stated herein no other representation,
warranty is made or given by or on behalf of either Party. In
particular, and without limitation, Gemini gives no warranty of
merchantability or fitness for particular purpose or any
guarantee or warranty of any kind express or implied in relation
to the [***] Samples, the [***] Samples or the associated
Clinical Data.
5.3 Neither Party shall be liable to the other in contract, tort,
negligence, breach of statutory duty or otherwise for any
economic loss or other loss of turnover, profits, business or
goodwill or any loss, damage, costs or expenses of any nature
whatsoever incurred or suffered by the other or its Affiliates
of an indirect or consequential nature arising out of or in
connection with this Agreement.
6. CONFIDENTIALITY
6.1 Each of the Parties undertakes and agrees to:
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6.1.1 use the Confidential Information only for the purposes
envisaged under this Agreement and not to use the same
for any other purpose whatsoever;
6.1.2 ensure that only those of its officers and employees who
are directly concerned with the carrying out of this
Agreement have access to the Confidential Information on
a strictly applied "need to know" basis and are informed
of the secret and confidential nature of it;
6.1.3 keep the Confidential Information secret and confidential
and not directly or indirectly to disclose or permit to
be disclosed, make available or pen-nit to be made
available the same to any third party (save as provided
in Clause 6.3.5) for any reason without the prior written
consent of the disclosing Party;
6.1.4 keep the Confidential Information separate at all times
from all other Know How which it may hold;
6.1.5 clearly identify the Confidential Information as
confidential.
6.2 Each Party agrees not to disclose any of the terms of this
Agreement or its existence to any third party without the prior
written consent of the other Party.
6.3 The obligations of confidence referred to in Clause 6.1 shall
not extend to any Confidential Information which:-
6.3.1 is or becomes generally available to the public otherwise
than by reason of breach by a recipient Party of the
provisions of this Clause;
6.3.2 is known to the recipient Party and is at its free
disposal (having been generated independently by the
recipient Party or a third party in circumstances where
it has not been derived directly or indirectly from the
disclosing Party's Confidential Information)prior to its
receipt from the disclosing Party provided that evidence
of such knowledge is furnished by the recipient Party to
the disclosing Party within 28 days of receipt of that
Confidential Information;
6.3.3 is subsequently disclosed to the recipient Party without
obligations of confidence by a third party owing no such
obligations to the disclosing Party in respect of that
Confidential Information;
6.3.4 is required by law to be disclosed (including as part of
any regulatory submission or approval process) and then
only when prompt written notice of this requirement has
been given to the disclosing Party so that it may, if so
advised, seek appropriate relief to prevent such
disclosure provided always that in such circumstances
such disclosure shall be only to the extent so required
and shall be subject to prior consultation with the
disclosing Party with a view to agreeing timing and
content of such disclosure; or
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6.3.5 is disclosed to any Affiliate or the employees,
directors, agents, consultants and professional advisors
of the recipient Party, provided that such persons are
bound in writing to the obligations of confidentiality
set forth in this Clause 6;.
6.4 All Confidential Information disclosed by the disclosing Party
to the recipient Party shall remain the property of the
disclosing Party. In the event that a court or Competent
Authority assumes partial or complete control over the assets of
a recipient Party based on the Insolvency Event of that Party,
the recipient Party shall:
6.4.1 promptly notify such court or Competent Authority:
(a) that Confidential Information received from the
disclosing Party under this Agreement remains the
property of the Disclosing Party; and
(b) of the confidentiality obligations under this
Agreement; and
6.4.2 to the extent permitted by law, take all steps necessary
or desirable to maintain the confidentiality and security
of the disclosing Party's Confidential Information and to
ensure that the court or Competent Authority maintains
that Confidential Information in confidence in accordance
with this Agreement.
6.5 The obligations of the Parties under Clause 6.1 to 6.4 shall
survive for a period of five (5) years from the date of this
Agreement.
7. MISCELLANEOUS
7.1 Neither Party shall without the prior written consent of the
other, such consent not to be unreasonably withheld, assign the
benefit and/or burden of this Agreement to any third party other
than an Affiliate.
7.2 If a Party is unable to perform any of its obligations under
this Agreement due to an event of Force Majeure, such Party
shall be excused such performance (but only such performance)
during the period of such Force Majeure event.
7.3 The validity, construction and interpretation of this Agreement
and any determination of the performance which it requires shall
be governed by English law. All disputes between the Parties
arising out of the circumstances and relationships contemplated
by this Agreement including disputes relating to the validity,
construction or interpretation of this Agreement, and including
disputes relating to pre-contractual representations which
result in any action or proceedings, shall be subject to the
exclusive jurisdiction of the English Courts.
7.4 Except as expressly provided in this Agreement nothing herein
deprives either Party or constitutes a waiver by either Party of
any of its rights or remedies under common law, statute or
otherwise.
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7.5 This Agreement constitutes the entire agreement and
understanding between the Parties and supersedes all prior oral
or written understandings, arrangements, representations or
agreements between them relating to the subject matter of this
Agreement provided that this does not remove any right of action
by either Party in respect of any fraudulent misrepresentation,
fraudulent concealment or other fraudulent action.
7.6 All formal notices to be given pursuant to this agreement shall
be in writing and shall be delivered by hand, post or facsimile
to the address of the Parties set out above (or such other
address as may be notified by a Party to the other from time to
time in accordance with this Clause) and in the case of a
facsimile with a confirmation copy being sent by post. Notices
shall be deemed to have been received:
7.6.1 if delivered by courier, at the time of delivery;
7.6.2 if sent by post:
(a) where posted in the country of the addressee,
on the second working day following the day of
posting; and
(b) where posted in any other country, on the fifth
working day following the day of posting;
7.6.3 if sent by facsimile, on acknowledgement by the
recipient facsimile receiving equipment on a Business
Day if the acknowledgement occurs before 1700 hours
local time on a Business Day of the recipient and in
any other case on the following Business Day.
7.7 The activities of the Parties contemplated pursuant to this
Agreement shall not constitute a partnership and neither Party
is the agent of the other Party or has the authority to bind the
other Party in any way except as provided in this Agreement.
7.8 Each Party shall bear its own legal costs and other expenses
incurred in the negotiation, preparation, execution and
implementation of this Agreement.
7.9 Any press releases to be made by either Party relating to this
Agreement will require the approval of the other Party.
7.10 This Agreement may be executed in any number of counterparts and
by the Parties by separate counterparts, each of which when so
executed shall be an original and all of which shall constitute
one and the same instrument.
7.11 The operation of the Contract (Rights of Third Parties) Act 1999
is hereby expressly excluded save that the Parties acknowledge
and agree that Affiliates of either Party may enforce against
the Parties (and a person who is the lawful successor to or a
permitted assignee of the rights of a Party) the rights and
benefits under this Agreement in accordance with that Act.
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IN WITNESS WHEREOF the Parties have executed this document the day and year
first above written.
SIGNED by
for and on behalf of
GEMINI GENOMICS UK LIMITED
in the presence of:
SIGNED by
for and on behalf of
CURAGEN CORPORATION
in the presence of:
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SCHEDULE 1
[***] SAMPLES AND PHENOTYPIC DATA
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SCHEDULE 2
[***] SAMPLES AND PHENOTYPIC DATA
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