Confidential material omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote such omissions.
Exhibit 10.27
R&D AND MARKETING COLLABORATION AGREEMENT
This Collaboration Agreement effective as of June 14,1999 (the "Effective Date")
is between Amersham Pharmacia Biotech AB, a Swedish corporation having its
address at Xxxxxxxxxx 00, X-000 00 Xxxxxxx, Xxxxxx ("AP Biotech") and Dyax
Corp., a Delaware corporation having its address at Xxx Xxxxxxx Xxxxxx, Xxxx.
000, Xxxxxxxxx, Xxxxxxxxxxxxx 00000, XXX ("Dyax").
---------------------------------------
Recitals
Whereas AP Biotech possesses technology and expertise to the development,
manufacture and world wide marketing of affinity chromatography media for use in
the separation and purification of biomolecules;
Whereas Dyax possesses technology and expertise for the discovery of proteins
and peptides having novel binding properties and the development and manufacture
of affinity chromatography purification media for use in the separation and
purification of biomolecules;
Whereas AP Biotech and Dyax wish to enter into a collaboration in which AP
Biotech and Dyax will utilise their respective technology and expertise to
develop for customers unique ligands and chromatography media incorporating such
ligands and AP Biotech will market and sell such media on a world wide scale.
Now, hereby the parties do hereby agree as follows:
1. Definitions
1.1 "Affiliate" means any corporation, partnership, or other business entity
controlled by, or controlling, or under common control with any party or
signatory to this Agreement, with "control" meaning direct or indirect
beneficial ownership of at least a fifty percent (50%) interest in the income of
such corporation, partnership, or other business entity, or such other
relationship as, in fact, constitutes actual control.
1.2 "Approved Project" means a Proposed Project which is approved by the
Steering Committee and conducted by the parties in accordance with Section 4.4
1
Confidential material omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote such omissions.
1.3 "Biopharmaceutical" means a protein or peptide being developed or sold as a
drug substance, *************.
1.4 "Confidential Information" means trade secrets, confidential or proprietary
information, and all other knowledge, information, documents or materials, that
are furnished by one party to the other party in connection with this Agreement,
which the proprietor takes reasonable measures to protect and which pertains, in
any manner, to subjects which include, but which are not limited to, research
operation, customers (including identities of customers and prospective
customers, identities of individual contacts at customers, preferences, business
or habits, including such customer's Confidential Information), business
relationships, products (including prices, costs, sales or content and including
released or unreleased products), financial information or measures, marketing
or promotion information, business methods, future Business Plans, data bases,
computer programs, designs, models, operating procedures, knowledge of the
organisation, and information received from others that either party is
obligated to treat as confidential. Further the term "Confidential Information"
shall include information which has been disclosed verbally, provided that such
verbal information be confirmed in writing within thirty (30) days of such
disclosure.
1.5 "Exclusive Customer Media" means Products discovered and/or developed in
accordance with an Approved Project exclusively for one customer at such
customer's specific and express request and which are developed, marketed and
sold by AP Biotech under the brand specified in Section 4.6 below.
1.6 "Ligand(s)" means a protein or peptide (any of their sequences), and any
derivatives thereof, which (i) binds to a Biopharmaceutical or other molecule
useful in the purification of a Biopharmaceutical, (ii) is discovered using
Phage Display Technology, and (iii) results from an Approved Project. For
purposes of this definition, (i) Phage Display Technology shall mean the
display of protein or peptides on a library of filamentous bacteriophage
*************.
1.7 "Multi Customer Media" means Products discovered and/or developed in
accordance with an Approved Project without any customer exclusivity, and
which are developed, marketed and sold by AP Biotech under the brand
specified in Section 4.5 below.
1.8 "Net Sales Value" means gross monies or the monetary equivalent of
consideration, whether or not invoiced, billed or received by AP Biotech and
its Affiliates, attributable to the use, sale, lease, or transfer of any
Product(s); less qualifying costs directly attributable to such use, sale,
lease, or transfer and actually allowed and borne by AP Biotech and its
Affiliates. Such qualifying costs shall be deemed to be four percent (4%) of
the invoiced value, unless AP Biotech can show the actual costs of the
following; provided however, that such qualifying costs shall in no event
exceed ten percent (10%):
Distributor discounts. Credits or refunds, not exceeding the original or
customary billing or invoice amount, for such claims or returns.
Packaging. Returnable containers. Commissions. Prepaid transportation
insurance premiums. Prepaid outbound transportation expenses. Discounts,
in amounts customary in the trade, for quantity purchases, cash payments,
prompt payments, wholesalers, and distributors. Promotional costs. Non
collectable accounts receivable. Handling charges. Separately billed
reasonable maintenance contract fees. Separately billed reasonable
installation costs. Retroactive price reductions. Taxes; including sales,
use, turnover, excise, import, export, and other taxes or duties,
separately billed or invoiced, and borne by AP Biotech, imposed by a
government agency on such use, sale, lease, or transfer.
A Product used, sold, leased, or transferred by gift or for consideration other
than money shall be deemed to have a monetary value of the higher of (A) the
money received by AP Biotech for a similar Product in an equivalent quantity and
in an arm's-length transaction, with a non affiliated third party, occurring at
or near the same time and location; or (B) the average amount of money received
by AP Biotech during the preceding thirty (30) days for similar Product(s) in
arm's-length transactions with non affiliated third parties.
2
Products used in testing or as marketing samples to develop or promote the
Product(s) shall not be included as Product(s) used, sold, leased, or
transferred under the definition of Net Sales Value; provided the Products are
supplied to the user at no cost.
1.9 "Products" means affinity chromatography media that contains a Ligand
immobilized on AP Biotech media and is sold by AP Biotech or its Affiliates for
use in the purification of Biopharmaceuticals.
1.10 "Proposed Projects" means a project proposal to develop either a Multi
Customer Media or a Exclusive Customer Media which is made to the Steering
Committee in accordance with Section 4.2 or 4.3.
1.11 "Proprietary Materials" means any tangible chemical, biological or physical
materials (including any Ligand and materials resulting from an Approved
Project) that are furnished by one party to the other party in connection with
this Agreement regardless of whether such materials are specifically designated
as proprietary.
2. Scope of Collaboration
The purpose of this Agreement is to provide the framework for a collaboration
between AP Biotech and Dyax relating to Ligands for use in the field of
purifying Biopharmaceuticals, where (i) the collaboration is under the
supervision of the Steering Committee between the parties in accordance with
Article 3 and 4, (ii) both AP Biotech and Dyax shall jointly market to customers
Dyax's technology and expertise to discover and/or develop unique affinity
ligands and AP Biotech's technology and expertise in the development,
manufacture and worldwide marketing of chromatography media and related base
matrices, coupling chemistry and ligiands, all in accordance with their
responsibilities set forth in Section 4.1, (iii) both AP Biotech and Dyax may
propose projects for Dyax to discover affinity ligands and to develop
affinity ligands owned by Dyax or third parties in accordance with Article 4,
(iv) Dyax shall supply Ligands to AP Biotech for use in Products in
accordance with Article 5, and (v) AP Biotech shall develop, market and sell
Products to customers under a co-branded trademark in accordance with
Sections 4.4 and 4.6 (such collaboration, the "Collaboration"). The
Collaboration shall have the term set forth Article 13 herein.
3. Governance
3.1 Creation of Steering Committee. The parties hereby create a Steering
Committee which shall consist of three members from each party, with each party
to provide written notice to the other of the names of such members within
thirty (30) days of the Effective Date. If any member of the Steering Committee
dies, resigns, or becomes incapacitated, the party which designated such member
shall designate his or her successor (whose term shall commence immediately),
and any party may withdraw the designation of any of its members of the Steering
Committee and designate a replacement (whose term shall commence immediately) at
any time by giving notice of the withdrawal and replacement to the other party.
If a member of the
3
Confidential material omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote such omissions.
Steering Committee cannot attend a meeting, that member may appoint a substitute
to attend the meeting in his or her place. The chairperson of the Steering
Committee shall be designated annually on an alternating basis between the
parties. The party not designating the chairperson shall designate one of its
representatives as secretary of the Steering Committee for such year.
3.2 Meetings of the Steering Committee .The first meeting of the Steering
Committee shall occur within ninety (90) days of the Effective Date. Thereafter,
regular meetings of the Steering Committee shall be held semi-annually within
forty-five (45) days of the end of each calendar half year, or at such other
times as the parties may deem appropriate, at such times and places as the
members of the Steering Committee shall from time to time agree. Special
meetings of the Steering Committee may be called by either party on fifteen (15)
days written notice to the other party unless notice is waived by the parties.
All meetings shall alternate between the offices of the parties unless the
parties otherwise agree. In the event a Steering Committee member is unable to
attend a meeting of the Steering Committee, such Steering Committee member may
designate an alternate member who will serve solely for that Steering Committee
meeting.
3.3 Decisions of the Steering Committee. A quorum of the Steering Committee
shall be present at any meeting of the Steering Committee if every member or a
duly appointed substitute are present at such meeting in person or by telephone.
If a quorum exists at any meeting, the unanimous consent of all members of the
Steering Committee present at such meeting is required to take any action on
behalf of the Steering Committee. Unless otherwise specially stated to the
contrary herein, no individual party shall purport to act on behalf of the other
party unless and then only to the extent authorised to do so by the Steering
Committee.
3.4 Responsibility of Steering Committee. The Steering Committee shall be
responsible for oversight of the conduct and progress of the collaborative
efforts and approval of all activities relating thereto; management of the
day-to-day activities being delegated to a project manager to be appointed by
each of AP Biotech and Dyax. The responsibilities of the Steering Committee
shall include but not be limited to:
(i) preparing and recommending overall budgets for the plans for
development *************;
(ii) approving a Business Plan (and any amended plans) to be developed
jointly by the marketing managers appointed by the parties in
accordance with Section 4.1;
(iii) determining which customer projects to pursue;
(iv) assessing, at least once every six months during the initial term of
this Agreement the progress of the Collaboration hereunder
*************;
(v) directing and administering the research programs of both parties
reasonably required to achieve the purposes of this Agreement;
4
Confidential material omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote such omissions.
(vi) reviewing reports and research results submitted by both parties
over their respective R&D and marketing efforts to achieve the
purposes of this Agreement; and
(vii) reviewing and approving the patent filing and prosecution of
jointly-owned inventions pursuant to Article 9.
3.5 Steering Committee Reports. Within ten (10) days following each meeting the
Steering Committee held pursuant to Section 2.2, the secretary of the Steering
Committee shall prepare and send to the members of the Steering Committee a
detailed written report of actions taken at the meeting in such form and
containing such detail as shall be determined by the Steering Committee.
3.6 Deadlock. In the event that the Steering Committee cannot reach agreement
with respect to any matter that is subject to its decision-making
authority, then the matter shall be referred to the an executive person of
each of the parties with authority to bind his principal. In the event
that such executives cannot resolve the dispute then the dispute shall be
referred to the dispute resolution procedure described in Section 8 for
final and binding determination.
4. Marketing and Development Collaboration
4.1 Joint Marketing. AP Biotech and Dyax shall each jointly market to its
customers the Collaboration to provide customers with Products within the
field of the purification of Biopharmaceuticals under the joint branding of
Section 4.6. Dyax shall be solely responsible for marketing its technology
and capabilities to discover and develop affinity ligands and AP Biotech
shall be solely responsible for marketing its technology and capabilities to
develop, manufacture and market affinity chromatography media and related
base matrices and coupling chemistry, provided that each party shall have the
right to include general information about the other party's technology and
capabilities in its marketing efforts. Both parties shall approve all
marketing materials used in the joint marketing of the Collaboration. All
marketing efforts shall be made in accordance with a Business Plan to be
developed by the marketing managers appointed by the parties and approved by
the Steering Committee within ninety (90) days of the Effective Date hereof
(the "Business Plan"). The Business Plan, as may be amended and approved in
amended form, shall specify the details of the joint marketing efforts, i.e.,
*************. Such marketing efforts may result in a customer request for
either Multi Customer Media or Exclusive Customer Media.
4.2 Multi Customer Media. AP Biotech may request Dyax to submit, or Dyax may
independently submit, a Proposed Project to the Steering Committee to
discover a Ligand and/or develop a Ligand for a specific target molecule
which AP Biotech or Dyax believes could be commercialised as a Multi Customer
Media. Such proposal may include the use of existing product leads from Dyax
or from a third party, provided, however, that AP Biotech and Dyax shall each
have the right to evaluate a sample of such product lead at its own cost for
a period of thirty (30) days. Thereafter, the Steering Committee shall have a
period of sixty (60) days in which to accept or reject the Proposed Project.
Upon acceptance of any Proposed Project, the provisions for
5
Confidential material omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote such omissions.
Approved Project set forth in Section 4.4 below shall apply. In the event that
the Steering Committee rejects any Proposed Project for a Multi Customer Media
then AP Biotech or Dyax, as the case may be, shall be free to develop such
request or proposal alone or in collaboration with a third party, subject to any
rights or licenses it may require from the other party.
4.3 Exclusive Customer Media. In the event that, as a result of the joint
marketing efforts, a customer forwards a specific and express request to
either AP Biotech or Dyax for the discovery and/or development of a Exclusive
Customer Media, the party receiving the request shall forward the request as
a Proposed Project to the Steering Committee. The Steering Committee shall
have a period of sixty (60) days in which to accept or reject the Proposed
Project. Upon acceptance of any Proposed Project, the provisions for Approved
Projects set forth in Section 4.4 below shall apply. In addition, the parties
shall work together to jointly offer, negotiate and reach agreement with any
such customers on the terms and conditions for discovering, developing and
licensing the Custom Design Media. The parties agree that in any such
agreement with a customer both Dyax and AP Biotech shall seek to obtain
payments for their discovery and development of Exclusive Customer Media in
the form of one or more R&D funding, milestone payments upon the reaching of
defined R&D goals, selling price for the Exclusive Customer Media and/or
license fees, milestones, royalties or other payments for grant of exclusive
rights to the Exclusive Customer Media. The parties shall share any R&D
funding in accordance with the work performed by each party and shall share
equally all R&D milestones. In the event the parties agree to a reduction in
AP Biotech's R&D fees or milestone payments for its discovery and development
efforts and/or a reduction in AP Biotech's selling price of the Customer
Designed Media in exchange for agreeing to other payments by the customer,
the parties shall negotiate in good faith and agree within sixty (60) days of
the agreement with the customer, on the equitable portion of the other
payments which shall be due AP Biotech for such reduction(s). In the event
that the Steering Committee rejects any Proposed Project for a Custom Design
Media then AP Biotech or Dyax, as the case may be, shall be free to develop
such request or proposal alone or in collaboration with a third party,
subject to any rights or licenses it may require from the other party.
4.4. Approved Projects. Each Proposed Project approved by the Steering
Committee in accordance with Sections 4.2 and 4.3 above shall be considered
an Approved Project which shall be managed by the project managers appointed
according to Section 3.4. For each such Approved Project, Dyax shall submit a
proposal to AP Biotech with separate phases defining a time schedule and R&D
goals for the funding of the discovery and/or development of the applicable
Ligand (either at Dyax or by a third party). AP Biotech shall provide the
funding set forth in Dyax's proposal in accordance with such separate phases,
unless a customer has agreed to provide such funding. The parties shall
mutually agree upon the terms for funding each project within sixty (60)
days. Dyax shall then use reasonable commercial efforts to discover and/or
develop the Ligand. Thereafter, AP Biotech agrees to use reasonable
commercial efforts to develop and optimize the Ligand as a Product at its own
cost, unless a customer has agreed to provide funding for such work. AP
Biotech shall then market and supply the resulting Multi Customer Media to
multiple customers or Exclusive Customer Media to the specified customer, at
a price suggested by AP Biotech and accepted by the Steering Committee
annually. Dyax shall supply the Ligand of such Products to AP Biotech in
accordance with Section 5 below and AP Biotech shall pay to Dyax royalties on
sales of such Products in accordance with Section 7 below.
4.5 Exclusive Nature of Collaboration. With respect to all Approved Projects
resulting from the Business Plan set forth in Section 4.1, as amended, and with
respect to all Multi-Customer Media and Exclusive Customer Media developed
pursuant to Section 4.2, 4.3 and 4.4, AP Biotech and Dyax shall collaborate
exclusively with each other. Further neither AP Biotech nor Dyax shall
individually approach any target customer for Exclusive Customer Media
identified in the Business Plan referred to in Section 4.1 above, as amended,
for purposes of entering into a business relationship with such customer for
************* which would compete with ************* for such customer; provided
however, that joint marketing activities must occur with such customer for such
application within ************* of the approval of the Business Plan and an
Approved Project be initiated with such customer for such application within
************* of such approval.
6
Confidential material omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote such omissions.
4.6 Branding. AP Biotech and Dyax agrees to jointly market the Collaboration,
and AP Biotech agrees to market and sell Products, under a combination of their
respective corporate names and logos, that is "Amersham Pharmacia Biotech" and
the "Drop design" and "Dyax Corp." and "Dyax "D" Logo", or such other trademark
or trade name as the parties may agree to. In the latter case the parties shall
jointly own such trademark or trade name and agree only to use it in connection
with the Collaboration. The parties shall cause such trademark or trade name to
be registered in every country where other than minimal sales can be expected
and shall equally share the cost of doing so. Such use shall be subject to the
provisions of Section 8 below.
4.7 Costs. Unless otherwise expressly provided for in this Agreement or
separately agreed to in writing, each party shall bear the costs incurred by
it in performance of its obligations under this Agreement.
5. Supply of Ligands
5.1 Subject to Section 6.2, Dyax shall supply AP Biotech with all its
requirements for ************* Ligands for the development, sales promotions and
sales of Products. If Dyax chooses to outsource the manufacture of such Ligands,
AP Biotech shall have the right to approve the manufacture in advance and such
Ligands shall be supplied to AP Biotech *************. If Dyax chooses to
manufacturer such Ligands itself, AP Biotech shall have the rights to inspect
and approve Dyax's manufacturing facilities and such Ligands shall be supplied
to AP Biotech *************. With respect to each Product, the parties shall
enter into a supply agreement *************.
5.2 For ************* Ligands, AP Biotech shall have the right to contract with
third party suppliers to purchase all of its requirements for such Ligands for
the development, sales promotions and sales of Product. AP Biotech shall notify
Dyax of the name of any such third party supplier and agrees that any contract
with such supplier shall permit Dyax to purchase Ligand from such supplier for
use outside the Collaboration.
6. License to AP Biotech
6.1 Dyax grants to AP Biotech and its Affiliates a non exclusive, royalty
bearing (as provided in Section 7 below) worldwide license to the Ligands to
develop, use and sell Products in accordance with the terms and conditions of
this Agreement. Further, such license shall not include any rights of further
license or sublicense, and shall be subject to the grant of exclusive rights
to a customer for a particular Exclusive Customer Media pursuant to
Section 4.3.
6.2 Dyax further grants to AP Biotech a non exclusive, royalty bearing (as
provided in Section 7 below) worldwide license to make, have made, use and
sell the Ligands in order to develop, use and sell Products (i) for those
Ligands which ************* are supplied in accordance with
7
Confidential material omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote such omissions.
Section 5.2, and (ii) for any Ligand that Dyax is unable or unwilling to supply
to AP Biotech in sufficient quantities required for AP Biotech to satisfy
customer demands for Products. AP Biotech may only invoke such license under
subsection (ii) if Dyax has failed to deliver Ligands in accordance with the
relevant supply agreement and in compliance with the relevant technical
specifications for a period of ninety (90) days after such delivery was due
AP Biotech, or immediately if Dyax notifies AP Biotech of its inability to
supply. Such license to AP Biotech under subsection (ii) shall terminate when
Dyax provides written evidence that it has the ability meet such customer
demand on a continuing and consistent basis in accordance with the terms of
the supply agreement.
7. Royalties.
7.1 Royalties. In consideration for the grant of rights from Dyax hereunder,
AP Biotech shall pay to Dyax (i) non-refundable prepaid royalties of Xxx
Xxxxxxx Xxxx Xxxxxxx Xxxxxxxx Xxxxxx Xxxxxx Dollars ($1,500,000), and (ii)
running royalties of *********** of the Net Sales Value of the Products. AP
Biotech shall have the right to reduce any running royalties amounts by the
prepaid royalties amount, provided that running royalties due Dyax may not be
reduced by more than **************** for any payment, and further, running
royalties for any Product may be reduced by payments owed to any third party
who discovered a Ligand which is incorporated in such Product; provided,
however, that Dyax shall not receive running royalties of less than
************* for any Product. Such running royalties shall be due and
payable on a Product-by-Product basis for a period of fifteen (15) years
after the first sale of each Product.
7.2 Records. AP Biotech and its Affiliates shall at all times during the term of
this Agreement keep accurate records of its sales of the Products in sufficient
detail to enable the royalties payable on Net Sales Value to be determined and
the reports due under Section 7.4 to be provided to Dyax.
7.3 Audits. Dyax shall have the right at its own expense to appoint an
independent certified public accounting firm, such firm to be reasonably
acceptable to AP Biotech, to audit AP Biotech's and/or its Affiliate's records
which are necessary to verify the royalties payable under this Agreement. Such
audits shall be performed during normal business hours and may not be called for
more frequently than once in any calendar year and no later than one year after
the end of the reporting period to be audited
7.4 Payments and Reports. The ************* amount set forth in Section 7.1
above shall be paid to Dyax *************. The ************* set forth in
Section 7.1 above shall be reported and paid by AP Biotech on behalf of itself
and its Affiliates *************. Such payments shall be made to the account
specified in writing by Dyax or otherwise as instructed by Dyax.
*************.
The ************* shall be payable in United States dollars ($) at the rate of
exchange between Swedish Kronor and $ quoted by the Wall Street Journal on the
last day of the reporting period.
7.5 Taxes. Withholding or other taxes assessed on Dyax in connection with the
payment of running royalties (but not prepaid royalties) due hereunder and which
AP Biotech is required by law to deduct and withhold when making payments, shall
be paid by AP Biotech to the competent authority on behalf of Dyax. The
originals of the
8
Confidential material omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote such omissions.
official government receipt for such taxes paid by AP Biotech on Dyax's behalf,
shall so indicate such fact and shall be sent by AP Biotech to Dyax not later
than thirty (30) working days after the date of payment, indicating net payment
of royalties to which such taxes relate, and in accordance with the instructions
given by Dyax. Upon receipt of such government receipt the sums so paid by AP
Biotech shall be credited by Dyax in partial discharge of the AB Biotech's
obligation ************* as provided for herein.
8. Trademarks
8.1 Dyax agrees that:
(i) AP Biotech has obtained from Nycomed Amersham plc and Pharmacia &
Upjohn a license to use the trademarks "Amersham Pharmacia" and
the "Drop Design";
(ii) Dyax may only use such trademarks for the purpose, and during the
term of this Agreement;
(iii) any rights it may acquire in such trademarks shall be assigned to AP
Biotech absolutely;
(iv) it shall not do or omit to do anything whereby in AP Biotech's
opinion the goodwill and reputation of such trademarks is prejudiced
or damaged.
8.2 AP Biotech agrees that
(i) Dyax is the owner of the trademarks "Dyax" and "Dyax "D" Logo";
(ii) AP Biotech may only use such trademarks and trade names for the
purpose, and during the term of this Agreement;
(iii) any rights it may acquire in such trademarks and trade names shall
be assigned to Dyax absolutely;
(iv) it shall not do or omit to do anything whereby in Dyax's opinion the
goodwill and reputation of such trademarks and trade names is
prejudiced or damaged.
9. Ownership of Inventions & Publications
9.1 Subject to any pre-existing rights of third parties, Dyax shall be the sole
owner of all inventions, whether or not patentable, which directly relate to
Ligands (including their sequences and uses) made during Dyax's discovery
and/or development of Ligands. Subject to any pre-existing rights of third
parties, AP Biotech shall be the sole owner of all inventions, whether or not
patentable,
9
which directly relate to coupling chemistry and base matrices made during AP
Biotech's development of Products. Such ownership shall be irrespective of
whether or not such inventions have been conceived and reduced to practice by
employees or agents of either AP Biotech or Dyax. For all other inventions,
inventorship shall be determined in accordance with United States federal
patent law, with each party to own the inventions of its own employees or
agents. For solely owned inventions, the owner shall be responsible for
decisions, actions and costs relating to obtaining patent protection for such
inventions. For jointly owned inventions, the parties shall mutually agree
upon and jointly share responsibility for decisions, actions and costs
relating to obtaining patent protection for such inventions and either party
shall be free to exploit any such invention but neither party may enforce any
such jointly owned patent without the agreement of the other party.
9.2 Subject to any third party restriction on disclosure and/or the need to
delay publication in order to file for patent protection pursuant to Section 9.1
above, the parties will jointly seek to publish (in oral or written form) on
results of Approved Projects. Such publications will be approved by the Steering
Committee and used by both parties in accordance with Section 4.1 for the joint
marketing of the Collaboration.
10. Indemnification
10.1 AP Biotech shall defend, indemnify and hold Dyax and its affiliates (the
"Dyax Indemnitees") harmless from, against, for and in respect of any and all
damages, losses, costs and expenses (including, without limitation, reasonable
attorney's fees and expenses of litigation) incurred by or imposed on the Dyax
Indemnitees or any of them in connection with any claims, suits, actions,
proceedings or judgments concerning AP Biotech's performance under this
Agreement or any product sold by AP Biotech to a third party, (including
infringement of a third party's intellectual property rights), unless such
injury or damage is caused by an act, negligent or otherwise of any of the Dyax
Indemnitees.
10.2 Dyax shall defend, indemnify and hold AP Biotech and its affiliates (the
"AP Biotech Indemnitees") harmless from, against, for and in respect of any and
all damages, losses, costs and expenses (including, without limitation,
reasonable attorney's fees and expenses of litigation) incurred by or imposed on
the AP Biotech Indemnitees or any of them in connection with any claims, suits,
actions, proceedings or judgments concerning AP Biotech's performance under this
Agreement or any product sold by AP Biotech to a third party, (including
infringement of a third party's intellectual property rights), unless such
injury or damage is caused by an act, negligent or otherwise of any of the AP
Biotech Indemnitees.
11. Confidential Information and Proprietary Materials
10
11.1 Subject to Sections 4.1, 9.2 and 16.2, each party undertakes to treat any
and all Confidential Information and Proprietary Materials as strictly
confidential and not to transfer, distribute or otherwise disclose it to any
third party for any purpose whatsoever and undertakes not to make use of any
such Confidential Information or Proprietary Materials, or any part thereof, for
any purpose other than for the purposes of this Agreement without the disclosing
party's prior written consent.
11.2 In the event of the either party visiting any of the establishments of the
other, the visiting party undertakes that any further information which may come
to its knowledge, as a result of any such visit, shall be kept strictly
confidential and that any such information will not be divulged to any third
party and will not be made use of in any way by the visiting party under any
circumstances.
11.3 The undertakings in Clauses 1 and 2 shall not apply to:
11.3.1 Information or materials which at the time of disclosure is
published or otherwise generally available to the public.
11.3.2 Information or materials which after disclosure by the discloser is
published or becomes generally available to the public, otherwise
than through any act or omission on the part of the recipient.
11.3.3 Information or materials which the recipient can show by reasonable
written record was in its possession at the time of disclosure and
which was not acquired directly or indirectly from the discloser.
11.3.4 Information or materials rightfully acquired from a third party who
did not obtain it under pledge of secrecy to the discloser or
another.
11.3.5 Information or materials which has been developed by the Recipient
independently of the Confidential Information or Proprietary
Materials received from the discloser.
11.4 The Confidential Information and Proprietary Materials shall not be deemed
to be in the public domain merely because any part of said Confidential
Information or Proprietary Materials is embodied in general disclosures or
because individual features, components or combinations thereof are known to the
public.
11.5 Each shall use any Proprietary Materials received from the other party
solely for the purposes of this Agreement and then in compliance with all
applicable laws and regulations and not for any in vivo experiments on human or
animal subjects. The recipient of the Proprietary Materials assumes all
liability for damages that may arise from the use, storage, or disposal of any
Proprietary Materials it receives and agrees
11
to defend, indemnify and hold the Proprietary Materials harmless from and
against any such losses, claims, demands, except to the extent caused by the
negligence or wilful misconduct of the party providing such Proprietary
Materials.
12. Representations and Warranties
12.1 Representations and Warranties. Both AP Biotech and Dyax warrant and
represent to each other, (i) that each has the legal right to enter into this
Agreement, (ii) that each has taken the necessary action to authorise the
execution of the Agreement, (iii) that the performance of their respective
obligations hereunder will not result in the breach of any agreement to which
either is a party, and (iv) that neither party controls any patent right or
other intellectual property right which are necessary for the other party to
carry out its rights and obligations by this Agreement.
12.2 Disclaimer of Warranties. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT,
DYAX AND AP BIOTECH EACH DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING
WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE AND NON-INFRINGEMENT WITH RESPECT TO ANY OF THE LIGANDS AND THE PRODUCTS
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INDIRECT, SPECIAL OR CONSEQUENTIAL
DAMAGES SUCH AS LOSS OF PROFITS OR BUSINESS OPPORTUNITIES.
13. Term & Termination
13.1 Term. This agreement shall commence on the Effective Date and continue for
an initial period of four (4) years, subject to renewal upon mutual written
agreement of the parties.
13.2 Termination for Material Breach or Default. This Agreement may be
terminated by either party upon sixty (60) days written notice to the other
party if the other party materially breaches or becomes in default of any
provision hereof, unless such breach or default is corrected or reasonable
efforts are being made to correct such breach or default within the notice
period.
13.3 Insolvency etc.. Either party shall be entitled to terminate this Agreement
immediately upon written notice to the other if that other party becomes
insolvent or makes an arrangement with its creditors or has a receiver or
administrator appointed to the whole or any part of its assets or if an order is
made or a resolution passed for its winding up, unless such order or resolution
is part of a scheme for its amalgamation or reconstruction.
12
13.4 Effects of Termination Upon termination or expiration of the Agreement, all
rights and obligations of AP Biotech and Dyax shall terminate except with
respect to Ligands and Products resulting from Approved Projects existing as of
the effective date of termination or expiration. For such Ligands and Products,
the provisions of Articles 5, 6 and 7 shall survive termination. In addition,
the provisions of Articles 9, 10, 11 and 12 shall survive termination or
expiration of this Agreement and shall continue in full force and effect.
14. Force Majeure
14.1 The obligations of either party hereunder shall be excused or suspended to
the extent performance is prevented or delayed by any future condition, which
(i) is beyond the reasonable control, and without the fault or negligence, of
the Party affected thereby, (ii) was not foreseeable by such Party at the time
this Agreement was entered into, and (iii) could not have been prevented by such
Party taking reasonable steps. Such conditions shall include but not be limited
to war, mobilisation, riots, fire, explosion, flood, insurrection, embargo,
currency restriction, shortage of transport, general shortage of material and
acts or omissions or governments in their sovereign capacity.
14.2 The party invoking Section 13.1 hereof shall, within seven (7) days after
commencement of the condition there mentioned, give written notice thereof , and
of the anticipated consequences thereof, to the other Party. Within seven (7)
days after termination or cessation of such condition, the affected party shall
give further written notice to the other Party detailing the actual results of
such condition.
14.3 In the event of any such condition, the Party affected thereby shall take
all reasonable measures to mitigate and minimise the effect of the condition,
and to resume as promptly as possible the diligent performance of its
obligations under this Agreement. Nothing in this Section 13 shall, however,
obligate either Party to settle strikes or other labour disputes except on terms
and conditions which it, in the exercise of its sole discretion, deems
appropriate.
15. Governing Law & Dispute Resolution
15.1 This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
15.2 All disputes arising in connection with the present contract shall be
submitted to an executive person of each party having the power to enter into a
binding decision on behalf of their respective principals for decision. If such
executive cannot resolve the issue within forty-five (45) days then such dispute
shall be finally settled under the Rules of Conciliation and Arbitration of the
International Chamber of Commerce by one or more arbitrators appointed in
accordance with said Rules. The arbitration
13
procedures shall take place in New York, NY and shall be held in the English
language, provided that documents may be presented in other languages.
15.3 This agreement and any award rendered pursuant to it shall be governed by
the 1958 Convention on the Recognition and Enforcement of Foreign Arbitration
Awards. Judgment upon the award rendered may be entered in any court having
jurisdiction or application may be made to such court for a judicial acceptance
of the award or an order of enforcement, as the case may be.
16. Miscellaneous
16.1 Publicity. Subject to Section 4.1, no press release, advertising,
promotional sales literature, or other promotional oral or written statements to
the public in connection with or alluding to work performed under this Agreement
or the relationship between the parties created by it, having or containing any
reference to AP Biotech or Dyax shall be made by either party without the prior
written approval of the other party, except for restatements of
previously-approved statements and disclosures required by applicable law or
regulation. Notwithstanding the foregoing, the parties agree to promptly
announce this Agreement and its general subject matter in a mutually agreed upon
press release.
16.2 Amendments. No provision of this Agreement may be amended, modified or
otherwise changed, other than by an instrument in writing duly executed on
behalf of the parties to this Agreement.
16.3 Assignment. Neither party shall have the right to assign it without the
prior written consent of the other party except that a party may assign the
Agreement to a subsidiary or an affiliate over which its exercises control or to
another entity in conjunction with the sale of the assets to which this
Agreement relates. Any unauthorised assignment or transfer or sub-license shall
be invalid and of no effect.
16.4 Entire Agreement. This Agreement constitutes the entire agreement and
supersedes all prior agreements and understandings, both written and oral,
between the parties hereto with respect to the subject matter hereof and no
party shall be liable or bound to the other in any other manner, except as set
forth herein.
16.5 Notices. Any notice which either party may wish to send to the other shall
be deemed to have been duly sent if delivered or posted by airmail to such party
at the address as set out in this clause or to such other address as may have
been notified pursuant to the provisions of this clause and if delivered shall
be deemed to have been received on the day of delivery and if posted then on the
seventh working day next following the day of posting, provided, however, that
any such notice may be sent by facsimile and shall be deemed to have been
received at the beginning of the working day next following the day of
transmission if the receiving machine causes the sending
14
machine to print the answer back code of the receiving machine at the beginning
and end of an uninterrupted transmission.
If to AP Biotech: Amersham Pharmacia Biotech AB
Attention: Johan von Heijne
Xxxxxxxxxx 00
X-000 00 Xxxxxxx
Xxxxxx
Telefax: x00 00 00 00 00
With a copy to:
Legal Department
Telefax: x00 00 00 00 00
If to Dyax: Dyax Corp.
Attention: Xxxxxx X. Xxxxxxx
Xxx Xxxxxxx Xxxxxx, Xxxx. 000
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
XXX
Telefax: x0 000 000 0000
16.6 Relationship. In making and performing this Agreement, the parties are
acting and shall act at the times as independent contractors, and nothing
contained in this Agreement shall be construed or implied to create any agency,
partnership or employer and employee relationship between AP Biotech and Dyax.
At no time shall any party make commitments or incur any charges or expenses for
or in the name of the other party.
16.8 Severability. The invalidity or unenforceability of one or more provisions
of this Agreement shall not affect the validity or enforceability of any of the
other provisions hereof, and this Agreement shall be construed in all respects
as if such invalid or unenforceable provisions were omitted.
16.9 Waiver. Any delay in enforcing a party's rights under this Agreement or any
waiver as to a particular default or other matter shall not constitute a waiver
of a party's right to the future enforcement of its rights under this Agreement,
excepting only as to an expressed written and duly signed waiver to a particular
matter for a particular period of time.
Signed of and on behalf of Signed for and on behalf of
Amersham Pharmacia Biotech AB Dyax Corp.
Signature: /s/ Johan von Heijne... Signature: /s/ Xxxxxx X. Xxxxxxx
-------------------- ---------------------
Position:......................... Position:.......................
15
Date:............................. Date:..........................
16
