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EXHIBIT 10.34
[ * ] = Certain confidential information contained in this document, marked by
brackets, has been omitted and filed separately with the Securities and Exchange
Commission pursuant to Rule 506 of the Securities Act of 1933, as amended.
COMPOUND LIBRARY AGREEMENT
This COMPOUND LIBRARY AGREEMENT (the "Agreement"), effective as of the
date appearing on the signature page hereof (the "Effective Date"), is made by
and between Array BioPharma Inc., a Delaware corporation, having a principal
place of business at 0000 00xx Xxxxxx Xxxxxxxx XX-0 Xxxxxxx, XX 00000-0000
("Array"), and Darwin Discovery Limited (Registration Number 3515202), a company
organized and existing under the laws of England through certain of its
affiliates Chiroscience R&D Ltd. (Registration Number 3503756), a company
organized and existing under the laws of England located at No. 283 Cambridge
Science Park, Xxxxxx Xxxx, Xxxxxxxxx, Xxxxxxx XX0 0XX, and Chiroscience R&D,
Inc., a Delaware corporation located at 0000 000xx Xxxxxx, Xxxxxxx, XX 00000
(collectively, "Chiroscience"). Any other affiliate or subsidiary of
Chiroscience (including without limitation ChiroTech) shall be deemed a third
party for all purposes of this Agreement and the Exhibits hereto.
RECITALS
A. Array desires to provide to Chiroscience, and Chiroscience desires to
obtain from Array, collections of "Diversity Library(ies)" (as defined
below).
B. Chiroscience desires to have the opportunity to have one or more of its
scientists trained in high speed synthesis techniques by Array
scientists.
C. Array is willing to provide "Diversity Library(ies)" (as defined below)
to Chiroscience and provide it the opportunity for training and access
to Chiroscience of certain Array Synthesis Methodologies (as defined
below), and Chiroscience is willing to obtain the Diversity Libraries
from Array and acquire access to such Array Synthesis Methodologies, on
the terms and conditions set forth herein.
NOW, THEREFORE, for and in consideration of the covenants, conditions,
and undertakings hereinafter set forth, it is agreed by and between the parties
as follows:
SECTION 1. DEFINITIONS.
1.1 "ACTIVE COMPOUND" shall mean a Library Compound to the extent the
same has been designated and maintained as an Active Compound under Section 6.3
below.
1.2 "ARRAY HSS INFORMATION" shall mean any confidential information
directly relating to Array's high-speed synthesis.
1.3 "ARRAY SYNTHESIS METHODOLOGIES" shall mean, collectively, [ * ]
[ * ] = Certain confidential information contained in this document, marked by
brackets, has been omitted and filed separately with the Securities and Exchange
Commission pursuant to Rule 506 of the Securities Act of 1933, as amended.
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1.4 "COLLABORATION" shall mean an arrangement or a contract with a
third party or a person other than a party to this Agreement focused on the
discovery, screening, testing, manufacture or development of products for
specified diseases or targets, under which Chiroscience either retains rights to
commercialize the resulting products or will receive a portion of the sales of
the resulting products from the other party (by way of royalty, profit
participation or similar mechanism, including reasonable advance, paid-up or
lump-sum royalties).
1.5 "COLLABORATIVE MANAGEMENT TEAM" OR "CMT" shall have the meaning as
set forth in Section 4.1 below.
1.6 "COMPOUNDS" shall mean the related but distinct chemical compounds
derived from a defined Scaffold.
1.7 "DESIGNATION PERIOD" shall mean, for a particular Library Compound,
the period commencing upon the [ * ] and ending on the date [ * ] thereafter.
1.8 "DIVERSITY LIBRARY(IES)" shall mean a collection of TA Libraries.
1.9 "EXCLUSIVE LIBRARY" shall have the meaning as set forth in Section
2.6 below.
1.10 "FIRST YEAR DIVERSITY LIBRARY" shall mean the Diversity Library
consisting of approximately [ * ] delivered by Array to Chiroscience prior to
the first anniversary of this Agreement as set forth in more detail in Section
2.1 below.
1.11 "FIRST YEAR SCAFFOLDS" shall mean the Scaffolds listed on Exhibit
A attached hereto.
1.12 "FIRST YEAR TA LIBRARY" shall have the meaning as set forth in
Section 2.1 below.
1.13 "FTE" shall have the meaning as set forth in Section 5.1 below.
1.14 "HSS EQUIPMENT" shall mean, collectively and individually, Array's
proprietary high-speed synthesis equipment.
1.15 "INTELLECTUAL PROPERTY PROTECTION" shall mean the application,
prosecution (including, without limitation, all interference actions, term
extensions and disclaimers, reexaminations, reissues, and divisions),
maintenance, defense and enforcement of U.S. and foreign patent applications and
patents arising therefrom, and establishment and protection of trade secrets and
other forms of intellectual property rights.
1.16 "LIBRARY COMPOUND" shall mean a Compound included in the First
Year Diversity Library or the Second Year Diversity Library delivered to
Chiroscience under this Agreement, together with all non-covalent derivatives of
such Compound, including but limited to acid addition salts, cationic salts, and
diasteromers and enantiomers thereof.
1.17 "NON-LIBRARY COMPOUND" shall mean any composition of matter
discovered, developed or invented by Chiroscience, or that is claimed or
disclosed under patent
[ * ] = Certain confidential information contained in this document, marked by
brackets, has been omitted and filed separately with the Securities and Exchange
Commission pursuant to Rule 506 of the Securities Act of 1933, as amended.
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application (including a provisional disclosure) filed by Chiroscience or on its
behalf which has a chemical structure distinct from the Library Compounds.
1.18 "PUBLIC DOMAIN COMPOUND" shall mean a Library Compound that cannot
be claimed as a composition of matter in a patent application because of failure
to meet the requirements for patentability under U.S. patent law (i.e., 35
U.S.C. et seq.).
1.19 "LICENSED TECHNOLOGY" shall mean, collectively, Array patent
rights and the Array Synthesis Methodologies.
1.20 "MAINTENANCE FEE" shall have the meaning as set forth in Section
6.3.2 below.
1.21 "NEW FIRST YEAR TA LIBRARIES" shall mean those TA Libraries based
on Scaffolds distinct from the First Year Scaffolds, provided that New First
Year TA Libraries shall not include TA Libraries (i) that Array is prohibited or
otherwise restricted from providing Chiroscience; or (ii) that Array reasonably
believes cannot be delivered in a timely fashion to Chiroscience.
1.22 "NEW SECOND YEAR TA LIBRARIES" shall mean the TA Libraries based
on Scaffolds distinct from the First Year Scaffolds and Second Year Scaffolds,
provided that New Second Year TA Libraries shall not include TA Libraries (i)
that Array is prohibited or otherwise restricted from providing Chiroscience; or
(ii) that Array reasonably believes cannot be delivered in a timely fashion to
Chiroscience.
1.23 "NEW TA LIBRARIES" shall mean, collectively, the New First Year TA
Libraries and/or Second Year TA Libraries.
1.24 "PROCESS DEVELOPMENT" shall be deemed to be initiated, with
respect to a particular TA Library, at such time as synthetic feasibility
studies used to define an efficient synthetic process for production of such TA
Library have been commenced.
1.25 "RE-SUPPLY COMPOUNDS" shall have the meaning as set forth in
Section 2.5 below.
1.26 "SCAFFOLD" shall mean the core chemical structure of the Compounds
of a TA Library.
1.27 "SECOND YEAR DIVERSITY LIBRARY" shall mean the Diversity Library
consisting of approximately [ * ] delivered by Array to Chiroscience prior to
the second anniversary of this Agreement as set forth in more detail in Section
2.3 below.
1.28 "SECOND YEAR SCAFFOLDS" shall mean the Scaffolds for the Second
Year TA Libraries.
1.29 "SECOND YEAR TA LIBRARIES" shall have the meaning as set forth in
Section 2.3 below.
1.30 "TEMPLATE ARRAY LIBRARY" OR "TA LIBRARY" shall mean a library of
related Compounds delivered to Chiroscience by Array under this Agreement.
[ * ] = Certain confidential information contained in this document, marked by
brackets, has been omitted and filed separately with the Securities and Exchange
Commission pursuant to Rule 506 of the Securities Act of 1933, as amended.
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1.31 [ * ].
SECTION 2. DIVERSITY LIBRARIES.
2.1 THE FIRST YEAR DIVERSITY LIBRARY. Subject to the terms and
conditions of this Agreement, prior to the first anniversary of this Agreement,
Array shall deliver to Chiroscience the First Year Diversity Library as set
forth in this Section 2.1. The First Year Diversity Library shall consist of
[ * ] (each, a "First Year TA Library") and shall contain a total of [ * ]
Compounds; provided that Chiroscience shall not be obligated to accept or pay
for more than [ * ] Compounds. Each First Year TA Library shall contain an
[ * ]. The First Year TA Libraries shall be based on, and identified by the
[ * ], and shall be characterized in conformance with the parameters set forth
on Exhibit A, and shall meet the quality control criteria set forth on Exhibit
C hereto.
2.2 [ * ]
2.3 THE SECOND YEAR DIVERSITY LIBRARY. Subject to the terms and
conditions of this Agreement, prior to the second anniversary of this Agreement,
Array shall deliver to Chiroscience the Second Year Diversity Library as set
forth in this Section 2.3. The Second Year Diversity Library shall consist of
[ * ] (each, a "Second Year TA Library"), and shall contain a total of [ * ]
Compounds; provided that Chiroscience shall not be obligated to accept or pay
for more than [ * ] Compounds. Each Second Year TA Library shall contain an
average of [ * ] Compounds, all of which shall have the same Scaffold, and shall
be characterized in conformance with the parameters set forth on Exhibit B
hereto, and shall comply with the quality control criteria set forth on Exhibit
C hereto. [ * ]. If the parties cannot agree on [ * ] additional Second Year
Scaffolds within [ * ] from the Effective Date (i.e., for a total of Scaffolds),
likewise if the parties cannot agree on a total of [ * ] within of the Effective
Date; then Chiroscience shall have the right to terminate this Agreement on
[ * ]. Exhibit B shall be amended by the parties to list the Second Year TA
Libraries as they are determined. [ * ]
[ * ] = Certain confidential information contained in this document, marked by
brackets, has been omitted and filed separately with the Securities and Exchange
Commission pursuant to Rule 506 of the Securities Act of 1933, as amended.
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[ * ]
2.4 [ * ]
2.5 RE-SUPPLY COMPOUNDS. Chiroscience may obtain additional quantities
of Compounds already delivered ("Re-supply Compounds"), by written order to
Array specifying the Compounds desired; provided that the cumulative number of
Re-supply Compounds that Chiroscience has ordered at any given time shall in no
event [ * ] of the total number of Compounds delivered and accepted by
Chiroscience, in the aggregate, as of the date of the order, and no more than
[ * ] Re-supply order may be made in any [ * ] period. Re-supply Compounds shall
be delivered in [ * ] from receipt of the order, and shall be supplied in
quantities of approximately [ * ], and shall comply with the other parameters
of Exhibit A or B, as applicable, at a charge of [ * ] provided to Chiroscience,
or [ * ] if a complete duplicate plate of [ * ] Compounds is to be provided to
Chiroscience. Unless otherwise agreed, the same Compound shall not be
re-supplied to Chiroscience more than [ * ] under this Section 2.5. In the event
that Chiroscience desires larger quantities, or higher purities of Re-supply
Compounds, the parties agree to negotiate terms for such synthesis in good
faith. Array's re-supply obligation shall continue for [ * ]
2.6 THE EXCLUSIVE LIBRARY. Upon the written request of Chiroscience
given to Array prior to the first anniversary of this Agreement, the parties
agree to negotiate in good faith a separate agreement under which Chiroscience
would obtain up to [ * ] Compounds on an exclusive basis (the "Exclusive
Library") on reasonable commercial terms. The terms for the Exclusive Library
shall include: (i) Compounds for the Exclusive Library based upon Scaffolds
proposed by Chiroscience and agreed upon by Array, and the Second Year TA
Libraries for which such Scaffolds and Compounds shall be substituted; (ii) a
fully exclusive license or assignment with respect to the Exclusive Library
Compounds that [ * ] (iii) Array will maintain the structure of such Scaffolds
as confidential until such time as the same become generally available in the
public domain, other than by breach of such provision by Array; (iv) Array will
provide Array Synthesis Methodologies for the Exclusive Library Compounds; and
(v) Array will agree not to provide Compounds within the Exclusive Library or
derivatives thereof to third parties; provided, that Array shall have no
obligation to provide any particular Scaffold to Chiroscience on an exclusive
basis and makes no representation that any particular Scaffold will be
available on such basis. The Exclusive Library shall be for a
[ * ] = Certain confidential information contained in this document, marked by
brackets, has been omitted and filed separately with the Securities and Exchange
Commission pursuant to Rule 506 of the Securities Act of 1933, as amended.
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[ * ] Compounds, and shall not include Compounds or Scaffolds contained in the
First Year Diversity Library or the Second Year Diversity Library. Without
limiting the foregoing, it is understood and agreed that the provisions of
Section 6 would not apply to Exclusive Library Compounds.
2.7 REPORTING. During the term of this Agreement, Array will report to
Chiroscience, on a [ * ], on its progress in creating New First Year TA
Libraries and New Second Year TA Libraries to be disclosed to Chiroscience
hereunder, and will notify Chiroscience in writing of Array's initiation of
Process Development of any TA Libraries to be delivered to Chiroscience under
this Agreement, not less than [ * ] prior to such initiation. Furthermore, in
connection with the obligations under Section [ * ] Array shall [ * ].
SECTION 3. DELIVERY; PAYMENT.
3.1 DELIVERY. The First Year Diversity Library shall be delivered to
Chiroscience as soon as reasonably practicable and in no event later than the
first anniversary of this Agreement, or such other time as the parties may
agree. The parties contemplate that the First Year Diversity Library will be
delivered in stages, consisting of one or more TA Libraries in each delivery.
Array will undertake its best efforts to deliver the First Year Diversity
Library in accordance with the delivery schedule set forth on Exhibit A, and
will update this schedule each quarter to advise Chiroscience of any changes to
the delivery schedule. The parties shall undertake best efforts to agree, within
[ * ] of the Effective Date, on a delivery schedule for the first [ * ] Second
Year TA Libraries, and shall undertake to agree, within [ * ] of the Effective
Date, on a delivery schedule for the remaining [ * ] Second Year TA Libraries.
Array will use its best efforts to deliver the Second Year Diversity Library
within [ * ] of the Effective Date.
[ * ]
Delivery of the First Year and Second Year Libraries shall be accompanied by the
Array Synthesis Methodologies used to generate the TA Libraries contained
therein and the quality control methods employed as defined in Exhibits A and B.
Array shall promptly deliver to Chiroscience each First Year TA Library and
Second Year TA Library as such TA Libraries become available, and shall make
such delivery an Array priority.
3.2 PRICE; ADVANCE PAYMENTS. Chiroscience agrees to pay Array [ * ] per
Compound for each Compound delivered to Chiroscience as part of the First Year
or Second Year Libraries, in the manner set forth in this Section 3.2 and
Section 3.3 below.
(i) Upon execution of the Agreement, Chiroscience shall pay Array [ * ]
which is [ * ] of the estimated total price for the First Year Diversity
Library, as an advance payment for the First Year Diversity Library; and
[ * ] = Certain confidential information contained in this document, marked by
brackets, has been omitted and filed separately with the Securities and Exchange
Commission pursuant to Rule 506 of the Securities Act of 1933, as amended.
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(ii) Upon the first anniversary of this Agreement, or within [ * ] of
the parties' agreement on [ * ] Second Year Scaffolds, whichever is later,
Chiroscience shall pay Array [ * ], which is [ * ] of the estimated total price
for the Second Year Diversity Library as an advance payment for the Second Year
Diversity Library. Notwithstanding the foregoing, if the parties agree upon a
Second Year Diversity Library of [ * ] TA Libraries prior to the first
anniversary of the Effective Date, the advance pay due under this Section
3.2(ii) shall be reduced to [ * ] of the price for such Second Year Diversity
Library, assuming an average [ * ] Compounds per Second Year TA Library.
The payments made under this Section 3.2 shall be proportionately refunded to
Chiroscience, or at Chiroscience's election credited against any outstanding
Chiroscience balance, in the event that this Agreement is terminated, as
expressly permitted hereunder, before the full TA Libraries have been delivered.
The amounts to be refunded, or credited if so elected, shall be in an amount
that results in Chiroscience paying an amount equal to [ * ] per Compound that
was delivered and which conformed with its applicable requirements under
Exhibits A, B and C.
3.3 PAYMENTS ON DELIVERY.
3.3.1 Within [ * ] of receipt of each TA Library from the
First Year Diversity Library or Second Year Diversity Library, Chiroscience
shall notify Array in writing of its acceptance or rejection of such TA Library,
and, if accepted, shall pay Array the balance due for the TA Library within
[ * ] of such acceptance, until the payments made by Chiroscience under Sections
3.2 and 3.3 equal [ * ] per Compound delivered; provided, that the advance
payments made by Chiroscience under Section 3.2 shall be deemed allocated among
the projected total number of First Year TA Libraries or Second Year TA
Libraries for the purpose of determining the balance due for any particular TA
Library, and further provided that nothing in this paragraph shall change the
transfer price of [ * ] per Compound. For purposes of example, Chiroscience
would pay Array [ * ] within [ * ] of receipt of a TA Library consisting of
[ * ] made under Section 3.2 therefor). Under no circumstances shall
Chiroscience be obligated to pay Array for more than [ * ] Compounds or [ * ]
Compounds for the TA Libraries provided for each of the First Year Diversity
Library or for the Second Year Diversity Library, respectively, (i.e., [ * ]
for the First Year Diversity Library and [ * ] for the Second Year Diversity
Library, and a total of [ * ] for both Diversity Libraries), unless
Chiroscience has expressly, specifically and in writing requested such
additional Compounds.
3.3.2 In addition, payment for accepted Re-supply Compounds in
accordance with Section 2.5 above shall be within thirty (30) days of delivery
thereof.
3.4 REJECTION FOR NON-CONFORMANCE. Chiroscience may reject the delivery
of any TA Library that fails to materially conform to the requirements of
Exhibit A, B or C, as applicable, by written notice to Array within thirty (30)
days of delivery of such TA Library, accompanied by documentation of the
non-conformance and any original
[ * ] = Certain confidential information contained in this document, marked by
brackets, has been omitted and filed separately with the Securities and Exchange
Commission pursuant to Rule 506 of the Securities Act of 1933, as amended.
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experimental data related thereto. If a delivery fails to conform to Exhibit C,
then Array shall have the option of re-purifying or resynthesizing the
nonconforming TA Library (or portion thereof), or reaching an agreement with
Chiroscience on alternative compounds to be synthesized. It being understood
that if a particular Compound fails to meet the requirements of Exhibit C, then
[ * ]. If a delivery fails to conform to Exhibit A or B, as applicable, then
Chiroscience shall reach a reasonable agreement with Array on resynthesizing the
nonconforming TA Library (or portion thereof), [ * ]. In the event of any
nonconformance under this paragraph, Array shall have [ * ] to cure; provided,
that Array's failure to deliver the First Year Diversity Library within [ * ] of
the Effective Date (subject to any extensions due to cure periods) shall be
deemed a material breach of this Agreement, and must be cured within [ * ] of
notice from Chiroscience. TA Libraries that are not rejected by Chiroscience in
accordance with Section 3.3 above within [ * ] after delivery shall be deemed
accepted. It is understood that Chiroscience may rely on applicable certificates
of analysis provided by Array for a particular TA Library in determining whether
to accept such TA Library.
3.5 PAYMENT PROCEDURE. All payments due under this Agreement shall be
made by bank wire transfer in immediately available funds to an account
designated by Array. All payments hereunder shall be made in U.S. Dollars. Any
undisputed payments that are not paid on the date such payments are due under
this Agreement shall bear interest to the extent permitted by applicable law at
the prime rate as reported by Norwest Bank, Denver, Colorado, on the date such
payment is due, calculated on the number of days such payment is delinquent past
the due date for such payment.
SECTION 4. THE COLLABORATIVE MANAGEMENT TEAM.
4.1 THE CMT. The parties hereby establish a Collaborative Management
Team (the "CMT") comprised of four (4) members, with two (2) representatives
appointed by each party, whose names shall be provided in writing. A party may
change one or more of its representatives to the CMT at any time upon notice to
the other party. Each party will designate one of its representatives as its
team leader.
4.2 DUTIES OF THE CMT. The CMT shall administer this Agreement,
including: (i) reporting of initiation of the synthesis of TA Libraries; (ii)
reporting of the creation of New TA Libraries; (iii) monitoring and reporting of
the synthesis of the Exclusive Library; (iv) agreement on the [ * ]; (v) [ * ];
(vi) modifying the composition of compounds, changing the number of compounds or
[ * ] (vii) informal adjudication of any dispute concerning rejection of
delivery of a TA Library; (viii) administration and implementation of the [ * ]
and the transfer of the Array Synthesis Methodologies to Chiroscience under
Section 5.6; and (ix) the initial, informal mediation of any other dispute that
arises under this Agreement. Any decision of the CMT regarding (iv), (v), (vi)
or (vii) shall be by written agreement of the CMT and shall be treated as an
amendment to this Agreement.
4.3 MEETINGS OF THE CMT. The CMT shall conduct monthly telephone
conferences and shall prepare and deliver a brief written report describing the
significant
[ * ] = Certain confidential information contained in this document, marked by
brackets, has been omitted and filed separately with the Securities and Exchange
Commission pursuant to Rule 506 of the Securities Act of 1933, as amended.
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issues and discussions that take place during such telephone conferences. The
chairman of the CMT shall be jointly appointed by its members and shall rotate
between Array and Chiroscience every six (6) months. The chairman shall provide
each member with five (5) business days' notice of the time of any such
telephone conferences and the proposed agenda with respect thereto, unless
waived by all members. Array will prepare and deliver to the members of the CMT
a brief progress report in advance of the telephone conference, which report may
include: the status of synthesis of TA Libraries, creation of New TA Libraries,
the administration of the Training Program, or any other pertinent matters. The
CMT shall meet at least once each quarter, alternating at locations of the
facilities of Array and Chiroscience, or at such other times and locations as
the CMT determines, with each party to bear all travel and related expenses for
its members. The chairman of the CMT shall provide each member with five (5)
business days' notice of the time and location of meetings, unless such notice
is waived by all members. If a designated representative of a party cannot
attend any meeting of the CMT, such party may designate a different
representative for that meeting without notice to the other party. Except as
otherwise provided in this Section 4, all actions and decisions of the CMT will
require the unanimous consent of all of its members. Subsequent to each
quarterly meeting, the chairman shall prepare and deliver, to both parties, a
written report describing the decisions made, conclusions and actions agreed
upon.
4.4 COOPERATION. Each party agrees to provide the CMT with information
and documentation as reasonably required for the CMT to fulfill its duties under
this Agreement. In addition, each party agrees to make available its employees
and consultants as reasonably requested by the CMT. The parties anticipate that
members of the CMT will communicate informally with each other and with
employees and consultants of the parties on matters relating to this Agreement.
SECTION 5. [ * ]; ARRAY SYNTHESIS METHODOLOGIES TRANSFER
5.1 [ * ].
5.2 SELECTION. [ * ]
[ * ] = Certain confidential information contained in this document, marked by
brackets, has been omitted and filed separately with the Securities and Exchange
Commission pursuant to Rule 506 of the Securities Act of 1933, as amended.
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5.3 [ * ]
5.4 [ * ]
5.5 NON-SOLICITATION. The Parties agree that during the term of this
Agreement and for [ * ] thereafter, neither party shall encourage any employee
to leave the employ of the other Party. In addition, during the term of this
Agreement and for [ * ] thereafter the Parties agree not to employ or offer to
employ (as an employee, contractor, consultant or otherwise), any person who was
or is an employee or officer of the other Party during that same period.
5.6 TECHNOLOGY TRANSFER. Array agrees to disclose to Chiroscience, for
use in accordance with Section 6, the Array Synthesis Methodologies.
Notwithstanding the foregoing, it is understood and agreed that Array's
disclosure obligations and the Array Synthesis Methodologies shall not include
information pertaining to Array's high speed synthesis equipment or to methods
of producing monomers. Disclosure of the information in (i) shall occur at the
time the particular TA Library is delivered to Chiroscience hereunder, and the
disclosure of the information described in (ii) shall occur within six (6)
months after the Effective Date. [ * ]. In the event that Chiroscience purchases
from Array the HSS Equipment described in Section 5.7 below, Array personnel
will travel to the Chiroscience facility at which such equipment is to be
installed, as reasonably necessary to
[ * ] = Certain confidential information contained in this document, marked by
brackets, has been omitted and filed separately with the Securities and Exchange
Commission pursuant to Rule 506 of the Securities Act of 1933, as amended.
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supervise the installation of such equipment. Otherwise, Array personnel shall
travel to Chiroscience's facilities for purposes of the disclosure and
assistance described in this Agreement only as mutually agreed by Chiroscience
and Array.
5.7 OPTION TO PURCHASE EQUIPMENT. In addition to the disclosure of
information under Section 5.6 above, Array agrees to sell to Chiroscience one or
more duplicates of any or all of the HSS Equipment, at a price to be reasonably
agreed by the parties. Such sale shall be made pursuant to a confidential sales
agreement to be agreed upon, which will include (among other provisions) a
commitment by Chiroscience not to reverse engineer such HSS Equipment and not to
provide or disclose the HSS Equipment to any third party. Chiroscience shall
have the right to exercise this option at any time during the term of this
Agreement or within six (6) months thereafter; it being understood that
Chiroscience has no obligation to purchase such equipment. Without limiting the
foregoing, in the event that Array is restricted from selling any particular
piece of HSS Equipment to Chiroscience, Array agrees to assist Chiroscience in
acquiring any/or integrating such HSS Equipment on reasonable terms and
conditions to be agreed. Notwithstanding anything to the contrary in this
Agreement, its Exhibits or otherwise, Chiroscience may without any obligation to
Array or restriction obtain and use laboratory equipment, reagents, consumables,
software, know-how, and other articles available from persons other than Array,
in conjunction with Chiroscience's use of the HSS Equipment or otherwise,
provided however, for purposes of this Paragraph 5.7, Chiroscience shall not
disclose to any third party the Array Confidential Information as defined in
paragraph 2 of Exhibit G unless prior written approval is obtained from Array.
5.8 COSTS OF TECHNOLOGY TRANSFER. Chiroscience shall bear all its own
costs associated with implementing the Array Synthesis Methodologies and HSS
Equipment and practicing the same, and shall reimburse Array for its direct
costs and expenses incurred by Array under Section 5.6 on either [ * ].
5.9 INVENTIONS. Notwithstanding anything herein to the contrary,
including Section 6 below, Array shall own inventions [ * ] and to the extent
such inventions directly relate to the subject matter of the [ * ]. Except as
otherwise expressly provided herein, Array hereby acknowledges that inventions
made by Chiroscience personnel [ * ] shall be solely owned by Chiroscience.
5.10 ARRAY SYNTHESIS METHODOLOGIES. In addition to the licenses granted
under Section 6, Array hereby grants to Chiroscience a non-exclusive, worldwide,
license, without the right to sublicense, to use the Array Synthesis
Methodologies solely for Chiroscience's internal research and development
purposes. Notwithstanding the foregoing, Chiroscience shall not disclose or
otherwise transfer any Array Synthesis Methodologies to any third party except
to the extent necessary to exercise its right under Section 6.2 and only under
reasonable conditions of confidentiality; provided, however, in no event shall
Chiroscience
[ * ] = Certain confidential information contained in this document, marked by
brackets, has been omitted and filed separately with the Securities and Exchange
Commission pursuant to Rule 506 of the Securities Act of 1933, as amended.
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disclose or otherwise transfer any Array Synthesis Methodologies to ChiroTech or
authorize any third party to do so.
SECTION 6. INTELLECTUAL PROPERTY
6.1 OWNERSHIP OF RIGHTS--GENERALLY. Subject to the terms of this
Agreement, title to patents and other rights in inventions made solely by Array
personnel shall be owned by Array, title to patents and other rights in
inventions made solely by Chiroscience personnel shall be owned by Chiroscience,
and title to patents and other rights in inventions made jointly by Chiroscience
personnel and Array personnel shall be owned jointly by Chiroscience and Array.
Except as provided in this Section 6, neither party will have any obligation to
account to the other, or obtain the consent of the other, with respect to the
exploitation (directly or through licensees or third parties) of any jointly
owned patent, and each party hereby waives any right it may have under the laws
of any jurisdiction to require such an accounting or consent.
6.1.1 LIBRARY COMPOUNDS DESIGNATED AS ACTIVE COMPOUNDS. [ * ].
6.1.2 NON-LIBRARY COMPOUNDS. As between the parties hereto,
Chiroscience shall exclusively own all title to patent and other proprietary
rights for inventions, whether patentable or not, related to the Non-Library
Compounds, including, without limitation, all inventions for compositions of
matter, and methods of using or making such Non-Library Compounds.
6.2 LICENSE OF RIGHTS.
6.2.1 LIBRARY COMPOUNDS. Array hereby grants to Chiroscience a
non-exclusive, worldwide, paid-up right and license, without the right to
sublicense, to make, have made and use the Library Compounds under all U.S. and
foreign patents or other proprietary rights owned by Array to carry out
Chiroscience's own internal research [ * ] under this Agreement (e.g., screening
and identifying lead candidates for drug discovery and development). If
Chiroscience establishes a Collaboration (including contracts for screening,
production, testing and development services) with a third party, Chiroscience
may disclose a Library Compound to such third party and authorize such third
party to use the Library Compound as reasonably necessary for the purposes of
the Collaboration (whether or not such Library Compound has been designated as
an Active Compound); provided, the Collaboration must be evidenced by a written
agreement that provides, among other things, the third party agrees not to
provide the Library Compound to others (excepting those contractors that
actually perform screening, testing, production and development services under
such Collaboration and in each such event only under reasonable terms of
confidentiality and restricted use) and shall use such Library Compound for the
limited purpose of the Collaboration unless and until such Library Compound has
been
[ * ] = Certain confidential information contained in this document, marked by
brackets, has been omitted and filed separately with the Securities and Exchange
Commission pursuant to Rule 506 of the Securities Act of 1933, as amended.
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designated and maintained as an Active Compound hereunder. Chiroscience may
disclose the composition of Compounds and transfer Compounds to potential
Collaboration partners, in each case subject to reasonable conditions of
confidentiality, without notifying Array. Notwithstanding the foregoing or any
other provision of this Agreement, in no event shall Chiroscience disclose any
Library Compound to ChiroTech for any reason.
6.2.2 ACTIVE COMPOUNDS
(a) License to Chiroscience. Array hereby grants to
Chiroscience an exclusive, worldwide sublicenseable right and license to make,
have made, use, sell, and import, and to authorize others to make, have made,
use, sell and import any Active Compounds designated and maintained in
accordance with Section 6.3 below under any U.S. or foreign patents owned by
Array. The exclusive license granted Chiroscience under this Section 6.2.2(a)
with respect to any Compound shall not take effect until and unless Chiroscience
has designated that Compound as an Active Compound. The right and license
granted Chiroscience under this Section 6.2.2(a) shall become paid-up and
irrevocable with respect to a particular Active Compound at such time as
Chiroscience has paid all of the Maintenance Fees with respect to such Active
Compound as required under Section 6.3.2 below. Except as provided in this
Section 6, Chiroscience shall have no obligation to account to Array, or obtain
its consent, with respect to the exploitation (directly or through licensees or
third parties) of any Chiroscience owned rights, and Array hereby waives any
right it may have under the laws of any jurisdiction to require such an
accounting or consent.
(b) Restriction on Supply of Active Compounds. Upon
designation of a Library Compound as an Active Compound by Chiroscience as
provided in Section 6.3, Array shall not thereafter for so long as such Library
Compound remains an Active Compound hereunder [ * ]. If another person or
entity, that is a party to an Array compound library agreement, requests to
obtain exclusive rights from Array with respect to a Library Compound, which
Chiroscience had previously designated as an Active Compound hereunder, then
[ * ].
6.3 DESIGNATION AND MAINTENANCE OF COMPOUNDS AS ACTIVE COMPOUNDS
6.3.1 DESIGNATION OF ACTIVE COMPOUNDS.
(a) Designation. At any time during the Designation
Period for a Library Compound, Chiroscience shall have the right to designate
the same as an Active Compound. It is understood, however, that any such
designation shall be subject to Section 6.3.5 below; and to the extent that such
designation is precluded as described in Section 6.3.5 below, such Library
Compound shall not be an Active Compound hereunder. Subject to the foregoing,
Chiroscience may designate [ * ] Library Compounds as Active Compounds. To
designate a Library Compound as an Active Compound, Chiroscience must so notify
Array in writing, with a description of the Compound (including a complete
description of its chemical structure), together with payment of the applicable
Maintenance Fee for such Active Compound (the "Active Compound Notice").
[ * ] = Certain confidential information contained in this document, marked by
brackets, has been omitted and filed separately with the Securities and Exchange
Commission pursuant to Rule 506 of the Securities Act of 1933, as amended.
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(b) Restriction. Chiroscience agrees that it will
not, and will not authorize any third party to, sell or otherwise commercialize
any Library Compound for any purpose unless such Library Compound has been (i)
designated and maintained as an Active Compound hereunder [ * ].
6.3.2 MAINTENANCE FEES FOR ACTIVE COMPOUNDS. To maintain a
Library Compound as an Active Compound hereunder and Chiroscience's rights with
respect thereto, Chiroscience agrees to pay to Array an annual maintenance fee
for each such Active Compound ("Maintenance Fee"). The amount of the Maintenance
Fee for each Active Compound will be based upon the aggregate number of Active
Compounds, according to the following schedule:
NO. OF ACTIVE COMPOUNDS ANNUAL MAINTENANCE FEE PER COMPOUND
----------------------- -----------------------------------
First [ * ] [ * ]/Compound for these Compounds
Next [ * ] [ * ]/Compound for these Compounds
Next [ * ] [ * ]/Compound for these Compounds
Over [ * ] [ * ]/Compound for these Compounds
6.3.3 CALCULATION OF MAINTENANCE COMPOUNDS. The annual
Maintenance Fees will be calculated for each Active Compound on a calendar year
basis. The first annual Maintenance Fee for an Active Compound would be due upon
the designation of such Active Compound pursuant to Section 6.3.1 above;
provided that such first annual Maintenance Fee would be prorated based upon the
number of days remaining in the calendar year from the date of such designation.
Thereafter, the annual Maintenance Fees shall be due for all Active Compounds no
later than January 15 of the particular calendar year. Once paid, the
Maintenance Fee shall be nonrefundable.
6.3.4 TERMINATION OF ACTIVE COMPOUND DESIGNATION. Chiroscience
may terminate its designation of any particular Active Compound at any time, by
so notifying Array in writing (specifying the Active Compound for which such
designation is being terminated) (the "Termination Notice"), provided that [ * ]
Library Compounds designated as Active Compound under Section 6.3.1 above may be
terminated under this Section 6.3.4. From and after the date Array receives such
Termination Notice, the specified Library Compound shall cease to be an Active
Compound for all purposes of this Agreement and shall thereafter be subject to
the provisions for Library Compounds that are not designated as Active
Compounds, and the Maintenance Fees for the remaining Active Compounds shall be
appropriately adjusted. Without limiting the foregoing, in the event
Chiroscience terminates its designation of any Active Compound, Chiroscience
hereby grants to Array an exclusive, worldwide, fully paid-up, irrevocable
license, with the right to grant and authorize sublicenses, under all patent
rights held by Chiroscience claiming composition of matter of any such Active
Compound. [ * ]. For purposes of determining the amount of the Maintenance Fee
due for a particular Active Compound, such amount shall be based upon the total
number of Active Compounds that have been designated and not so terminated at
the time the
[ * ] = Certain confidential information contained in this document, marked by
brackets, has been omitted and filed separately with the Securities and Exchange
Commission pursuant to Rule 506 of the Securities Act of 1933, as amended.
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Maintenance Fee is due. For purposes of determining the initial annual
Maintenance Fee, the Active Compounds being designated shall be included in such
total. The annual Maintenance Fee for any particular Active Compound shall be
due for a period of [ * ] calculated from the date that Compound was designated
as an Active Compound, after which time it shall be fully paid-up and no further
Maintenance Fee shall be due for such Active Compound. In the event that the
first year was less than a full calendar year, the Maintenance Fee for the [ * ]
calendar year beginning after the date such Active Compound was initially
designated pursuant to Section 6.3 would be prorated from January 1 of such year
until the date that is the [ * ] of the date of such designation. If an Active
Compound is terminated, and later re-designated, as an Active Compound, such
[ * ] period would begin as of the date the subsequent re-designation.
6.3.5 THIRD PARTY RIGHTS. The First Year Diversity Library and
Second Year Diversity Library are being provided to Chiroscience on a
non-exclusive basis, and nothing herein shall prevent or restrict Array from
providing some or all of the Library Compounds within the First Year Diversity
Library or Second Year Diversity Library to third parties. It is further
understood that Array may grant to third parties rights to acquire licenses in
the Library Compounds similar to those granted to Chiroscience hereunder;
accordingly, Chiroscience's right to designate any particular Library Compound
as an Active Compound, and Array's grant of rights to Chiroscience under this
Section 6, are limited to the extent that prior to Chiroscience's designation of
a Library Compound as an Active Compound, a third party has similarly designated
such Library Compound. It is understood and agreed that so long as Array
complies with this Section 6, Array shall have no liability with respect to any
conflict of Chiroscience's rights and those rights granted to third parties by
Array. For avoidance of doubt, it is understood and acknowledged that Array
shall not have the right to grant to any third party, who is an Affiliate of
Array at the time of such grant, any right that might conflict with the rights
granted to Chiroscience under Section 6.2. For purposes of the foregoing, an
"Affiliate" shall mean any entity which controls, is controlled by or is under
common control with Array and an entity shall be regarded as in "control" of
another entity for purposes of this definition if it owns or controls more than
fifty percent (50%) of the shares of the subject entity entitled to vote in the
election of directors (or, in the case of an entity that is not a corporation,
for the election of the corresponding managing authority).
6.4 INTELLECTUAL PROPERTY PROTECTION. Chiroscience shall have the
right, at its expense and discretion and without obligation to Array, to fully
direct and control the Intellectual Property Protection for any and all Active
Compounds, [ * ] and to abstain or withdraw from such Intellectual Property
Protection; provided, however prior to filing or otherwise initiation of the
prosecution of any Intellectual Property Protection for any Library Compound
hereunder (whether covering composition-of-matter, method of use, synthesis
process, pharmaceutical composition or otherwise), Chiroscience shall (i)
designate such Library Compound as an Active Compound as set forth in Section
6.3 above [ * ] and maintain documentation to support such determination. In the
event Chiroscience designates [ * ] under this Section 6.4(ii), then
Chiroscience shall retain all rights to fully direct and control the
Intellectual Property Protection for such [ * ]. In the event Chiroscience files
a patent application covering the Intellectual Property Protection of the
designated [ * ] Chiroscience shall provide all
[ * ] = Certain confidential information contained in this document, marked by
brackets, has been omitted and filed separately with the Securities and Exchange
Commission pursuant to Rule 506 of the Securities Act of 1933, as amended.
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written documentation to Array supporting Chiroscience's designation as a [ * ].
Array shall reasonably cooperate with Chiroscience, at Chiroscience's expense,
in its carrying out the Intellectual Property Protection set forth under this
Section 6.4, and shall provide such records and shall cause its employees,
officers and directors to execute such documents and provide such testimony as
reasonably necessary for Chiroscience to perfect and enforce its rights and to
carry out Intellectual Property Protection, and shall not object to being joined
by Chiroscience as a party to any action brought or defended by Chiroscience to
the extent necessary for Chiroscience to maintain such action or defense.
6.5 CONGRUENCE OF ARRAY LIBRARY AGREEMENTS. Array represents and
warrants that it shall ensure that each agreement under which it is or may
become obligated to provide access or rights to any of the Library Compounds
that are or might be provided to Chiroscience shall: (i) contain the provisions
not inconsistent with those set forth in this Section 6; and (ii) shall not
contain any provisions that would impair Array's ability to grant Chiroscience
the rights to which it would be entitled to under this Agreement, or that would
impair Chiroscience's free exercise of such rights, subject to Section 6.3.5.
Array shall be responsible for using reasonable efforts to ensure that the
parties to those other contracts shall fulfill their obligations to Array and
cause them to do so.
SECTION 7. CONFIDENTIALITY.
7.1 CONFIDENTIAL INFORMATION. As a condition of this Agreement, the
Parties shall enter into the Nondisclosure Agreement attached at Exhibit G
hereto, and any confidential information exchanged hereunder, including the
Scaffolds proposed by Array for any of the Libraries to be provided hereunder,
shall be governed by such Agreement, except as otherwise expressly provided in
this Agreement and its Exhibits. The Nondisclosure Agreement supercedes all
prior agreements between the parties relating to confidentiality, and all such
prior disclosures are deemed to be bound by the terms of the Nondisclosure
Agreement. For avoidance of doubt, Array shall have the right to indicate to
third parties that a particular Library Compound is not available for
commercialization. If after the Effective Date Chiroscience wishes to disclose
to Array information that Chiroscience considers confidential or proprietary
related to (i) the activity of Compounds in biological screens or targets, (ii)
the targets against which Compounds are screened, or (iii) other development or
screening efforts with respect to Compounds, Chiroscience agrees to provide
Array with a nonconfidential summary of such information and will not disclose
such information to Array if Array notifies Chiroscience that Array does not
wish to receive such information.
7.2 NONDISCLOSURE OF TERMS; PUBLICITY. The parties shall cooperate in
the preparation of a mutually-agreeable press release and other publicity
disclosing the existence of this Agreement in the form as set forth in Exhibit H
attached hereto. Except for the information disclosed in such press release or
publicity, neither party shall disclose the existence of this Agreement or any
terms of this Agreement without the prior, written consent of the other party
(which consent shall not be unreasonably withheld), except for such disclosure
as may be reasonably necessary to either party's bankers, investors, attorneys
or other professional advisors, or in connection with a merger or acquisition,
or as may be required by law in the offering of securities or in securities or
regulatory filings or otherwise. Either party may make public announcements
concerning this Agreement or the subject matter hereof with the prior written
consent of the other party, which consent shall not be unreasonably delayed or
withheld, and provided that the party proposing to make a public
[ * ] = Certain confidential information contained in this document, marked by
brackets, has been omitted and filed separately with the Securities and Exchange
Commission pursuant to Rule 506 of the Securities Act of 1933, as amended.
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announcement shall submit the proposed statement to the other party for review
and reasonable comment no less than [ * ] prior to such public announcement.
7.3 PUBLICATION. Subject to Section 6, any manuscript, abstract or
presentation (including information to be presented verbally) by Chiroscience
specifically identifying the chemical structure or composition of non-exclusive
First Year Diversity Library or Second Year Diversity Library, or the Library
Compounds, [ * ] shall be subject to the reasonable prior review and reasonable
agreement of Array at least forty-five (45) days prior to any non-confidential
public submission or disclosure. The parties will treat matters of authorship of
scientific abstracts, manuscripts or other publications in a proper
collaborative spirit, giving credit where credit is due. Prior review and
agreement shall not apply to confidential disclosures made by Chiroscience nor
to patent applications (and related Intellectual Property Protection actions)
submitted by or on behalf of Chiroscience or its Collaboration partners.
SECTION 8. REPRESENTATIONS AND WARRANTIES.
8.1 CHIROSCIENCE. Chiroscience warrants and represents that: (i) it has
the legal power, authority and right to enter into this Agreement, and to
perform all its obligations hereunder, and (ii) this Agreement is a legal and
valid obligation binding upon it and enforceable in accordance with its terms.
8.2 ARRAY. Array represents and warrants that: (i) it has the legal
right and power to extend the rights granted in this Agreement; (ii) this
Agreement is a legal and valid obligation binding upon it and enforceable in
accordance with its terms; and (iii) it has the legal power, authority and right
to enter into this Agreement, and to perform all its obligations hereunder.
Array covenants to Chiroscience that it will inform Chiroscience of any claim
brought or threatened by a third party against Array alleging that the
manufacture, use or sale of a Compound provided to Chiroscience hereunder
infringes a patent or other intellectual property right of a third party.
8.3 DISCLAIMER. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS
AGREEMENT, ARRAY AND CHIROSCIENCE AND THEIR RESPECTIVE AFFILIATES MAKE NO
REPRESENTATIONS AND EXTEND NO WARRANTIES OR CONDITIONS OF ANY KIND, EITHER
EXPRESS OR IMPLIED, WITH RESPECT TO THE TA LIBRARIES, THE COMPOUNDS, OR PRODUCTS
CONTAINING THEM, OR INFORMATION DISCLOSED PURSUANT HERETO INCLUDING, BUT NOT
LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
VALIDITY OF ANY LICENSED TECHNOLOGY, PATENTED OR UNPATENTED, OR NONINFRINGEMENT
OF THE PATENT RIGHTS OF THIRD PARTIES.
SECTION 9. MISCELLANEOUS
9.1 GOVERNING LAW. Any controversy or claim of whatsoever nature
arising out of or relating in any manner whatsoever in this Agreement or any
breach of any terms of this Agreement shall be governed by and construed in all
respects in accordance with, the laws of the state of New York.
[ * ] = Certain confidential information contained in this document, marked by
brackets, has been omitted and filed separately with the Securities and Exchange
Commission pursuant to Rule 506 of the Securities Act of 1933, as amended.
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9.2 NO IMPLIED LICENSE. Only the licenses granted pursuant to the
express terms of this Agreement shall be of any legal force or effect. No other
license rights shall be created by implication, estoppel or otherwise. No
license on other rights granted herein shall be expanded by a change in
Chiroscience's ownership, merger, acquisition or otherwise.
9.3 INDEPENDENT CONTRACTORS; AFFILIATES. The relationship of the
parties hereto is that of independent contractors. The parties hereto are not
deemed to be agents, partners or joint venturers of the others for any purpose
as a result of this Agreement or the transactions contemplated thereby.
9.4 NOTICES. All notices, requests and other communications hereunder
shall be in writing and shall be personally delivered or by registered or
certified mail, return receipt requested, postage prepaid, in each case to the
respective address specified below, or such other address as may be specified in
writing to the other parties hereto and shall be deemed to have been given upon
receipt:
Array: Array BioPharma Inc.
0000 00xx Xxxxxx - Xxxx. XX-0
Xxxxxxx, XX 00000-0000
Attn: Xxxxx Xxxxxxx
with a copy to: Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000-0000
Attn: Xxxxxxx X. Xxxxx
Chiroscience: Darwin Discovery Limited
283 Cambridge Science Xxxx
Xxxxxx Xxxx
Xxxxxxxxx XX0 0XX
Xxxxxx Xxxxxxx
Attn: Company Secretary
FAX: 0000 000-000
Chiroscience R&D Limited
283 Cambridge Science Xxxx
Xxxxxx Xxxx
Xxxxxxxxx XX0 0XX
Xxxxxx Xxxxxxx
Attn: Company Secretary
FAX: 0000 000-000
Chiroscience R&D, Inc.
0000 000xx Xxxxxx XX
Xxxxxxx, XX 00000
Attn: Director of Legal Affairs
FAX: 000-000-0000
9.5 SEVERABILITY. In the event that any provision of this Agreement
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this
[ * ] = Certain confidential information contained in this document, marked by
brackets, has been omitted and filed separately with the Securities and Exchange
Commission pursuant to Rule 506 of the Securities Act of 1933, as amended.
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Agreement shall continue in full force and effect to the fullest extent
permitted by law without said provision, and the parties shall amend the
Agreement to the extent feasible to lawfully include the substance of the
excluded term to as fully as possible realize the intent of the parties and
their commercial bargain.
9.6 NO CONSEQUENTIAL DAMAGES. In no event shall any party to this
Agreement have any liability to the other for any special, consequential or
incidental damages arising under this Agreement or any dispute as to the
enforcement or construction of this Agreement under any theory of liability
(including tort, contract and breach of warranty). The remedy for material
breach of this Agreement, including the failure to deliver Compounds shall be
limited to termination of the contract, return of any amounts paid for Compounds
not delivered, and interest on such funds at the legal rate.
9.7 SALES TAXES. Chiroscience has represented that the Compounds to be
delivered according to this Agreement are to used solely for internal research
and development by Chiroscience. Based on this representation, Array believes
that no sales taxes, use taxes, transfer taxes or similar governmental charges
will be required to be paid in connection with the transfer of the TA Libraries
hereunder. Notwithstanding the foregoing, any such taxes or charges shall be the
sole responsibility of Chiroscience, and in the event that Array is required to
pay any such amounts, Chiroscience shall promptly remit payment to Array of such
amounts.
9.8 COMPLETE AGREEMENT. This Agreement with its Exhibits, together with
the Nondisclosure Agreement, constitutes the entire agreement, both written and
oral, between the parties with respect to the subject matter hereof, and all
prior agreements respecting the subject matter hereof, either written or oral,
expressed or implied, shall be abrogated, canceled, and are null and void and of
no effect. There are no covenants, promises, agreements, warranties,
representations, conditions or understandings, either oral or written, between
the parties other than as set forth herein and therein. No amendment or change
hereof or addition hereto shall be effective or binding on either of the parties
hereto unless reduced to writing and executed by the respective duly authorized
representatives of Array and Chiroscience.
9.9 DEFAULT. In the event that either party shall fail to comply with a
material term of this Agreement (for purposes of this Section 9.9, the
"Defaulting Party"), the other party shall provide the Defaulting Party with
written notice through the CMT, specifying the nature of the non-compliance. The
Defaulting Party shall have thirty (30) days from receipt of notice to cure the
non-compliance, except as otherwise provided for in the Agreement. If the
Defaulting Party disputes the allegations of the notice, then the parties shall
attempt in good faith to resolve the matter informally through the CMT. [ * ].
9.10 INDEMNIFICATION AND INSURANCE.
9.10.1 INDEMNIFICATION. Each party (for purposes of this
Section 9.10, the "Indemnitor") shall indemnify, defend, and hold harmless
(collectively "Indemnification Obligations") the other party and its affiliates
and their directors, officers, employees, and agents and their respective
successors, heirs and assigns (for purposes of this Section 9.10, the
"Indemnitees"), against any liability, damage, loss, or expense (including
[ * ] = Certain confidential information contained in this document, marked by
brackets, has been omitted and filed separately with the Securities and Exchange
Commission pursuant to Rule 506 of the Securities Act of 1933, as amended.
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reasonable attorneys fees and expenses of litigation) incurred by or imposed
upon the Indemnitees or any one of them in connection with any claims, suits,
actions, demands, or judgments arising out of any theory of product liability
(including, but not limited to, actions in the form of tort, warranty, or strict
liability) concerning any product (or any process or service) that is made,
used, or sold by or under authority of the Indemnitor pursuant to any right or
license granted under this Agreement or to any breach of the parties respective
warranties; provided, however, that such Indemnification Obligations shall not
apply to any liability, damage, loss, or expense to the extent directly
attributable to the negligent activities, reckless misconduct, or intentional
misconduct of the Indemnitees.
9.10.2 PROCEDURES. Any Indemnitee that intends to claim
Indemnification Obligations under Section 9.10.1 shall promptly notify the
appropriate Indemnitor of any claim in respect of which the Indemnitee intends
to claim such indemnification, and the Indemnitor shall assume the defense
thereof with competent and qualified counsel; provided, however, that an
Indemnitee shall have the right to retain its own counsel, with the fees and
expenses to be paid by the Indemnitor, if representation of such Indemnitee by
the counsel retained by the Indemnitor would be inappropriate due to actual
material conflict of interests between such Indemnitee and any other party
represented by such counsel in such proceedings. The failure to deliver notice
to the Indemnitor within a reasonable time after the commencement of any such
action shall not relieve the Indemnitor of any liability to the Indemnitee under
this Section, except to the extent that one or more legal defenses or rights may
have been forfeited or impaired by such delay. Each party and its affiliates and
their employees and agents shall cooperate fully with the other party and its
legal representatives in the investigation of any action, claim or liability
covered by this indemnification.
9.10.3 INSURANCE. Each party shall maintain reasonably
adequate insurance or self-insurance coverage for its own potential liabilities
to the Indemnitees as set forth in this Section 9.10.
9.11 ARBITRATION. Any dispute or controversy pertaining to this
Agreement or the enforcement or construction of this Agreement shall initially
be referred to the CMT. The parties agree to attempt to resolve any such dispute
in good faith through the CMT. In the event the dispute is not resolved within
thirty (30) days by the CMT, the dispute shall be referred to senior management
of the parties, who shall attempt in good faith to resolve it. Any dispute which
cannot be resolved within thirty (30) days after referral to the respective
Chief Executive Officers of the parties shall be finally settled by binding
arbitration, conducted in accordance with the Commercial Arbitration Rules of
the American Arbitration Association by one arbitrator appointed by agreement of
the parties. The arbitration shall be held in New York City, New York. New York
law shall be applied to all matters in dispute between the parties with respect
to this Agreement. Each party shall bear its own costs and attorneys' and
witness' fees. The costs of the administration of the arbitration, including
arbitrator's fees and administrative fees and expenses, shall be shared equally
by the parties.
9.12 RENEWAL OPTION. Chiroscience may request a one-time renewal of
this Agreement for an additional [ * ], by written notice at least ninety (90)
days prior to the [ * ]. Such renewal would provide for the delivery of a [ * ]
Diversity Library of up to [ * ] Compounds on a non-exclusive basis. The parties
agree to negotiate the terms of any such
[ * ] = Certain confidential information contained in this document, marked by
brackets, has been omitted and filed separately with the Securities and Exchange
Commission pursuant to Rule 506 of the Securities Act of 1933, as amended.
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renewal in good faith, but agree that such renewal terms would not include
royalty provisions or milestones, or provide for more than a [ * ] increase in
the cost per Compound and would reflect terms substantially similar to Sections
1, 2.1, 2.2, 2.5, 2.7, 3, 4, 6, 7, 8 and 9 (other than this Section 9.12), and
Exhibits A, C, G of this Agreement. It being understood that Sections 3.2 and
3.3 will be modified to reflect the agreed upon cost per Compound and number of
Compounds to be included in the third year Diversity Library.
9.13 TERM AND TERMINATION. The term of this Agreement shall be two (2)
years from the Effective Date, unless terminated earlier for material breach or
as provided in 2.3 above, or extended pursuant to Section 9.12 or other
agreement of the parties. Either party may terminate this Agreement on thirty
(30) days' notice for material breach that is not cured within such thirty (30)
day period, except as provided otherwise in the Agreement. Termination of this
Agreement shall not relieve the parties of any obligation accruing prior to such
termination. In addition, Sections 1, 5.4, 5.5, 5.9, 6.1, 7, 8, and 9 (other
than Section 9.12) and Exhibit G, shall survive the expiration or any
termination hereof. Furthermore, Sections 2.5, 5.6, 5.10, 6.2, 6.3, 6.4 and 6.5
shall survive the expiration of this Agreement or a termination under (i)
Section 2.3 or (ii) under this Section 9.13 by reason of material breach by
Array, but shall not survive termination under this Section 9.13 by reason of
material breach by Chiroscience. For purposes of the foregoing, if a Section
that so survives is expressly stated to continue for a period of time specified
in such surviving Section, the same shall survive only for the remainder of the
period specified in such Section.
9.14 CHANGE OF CONTROL. This Agreement shall not be assignable by
either party without the written consent of the other party hereto; except that
either party may assign this Agreement without the other party's consent to an
entity that succeeds to substantially all of the business or assets of the
assigning party, by way of merger, transfer of assets, or otherwise.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their authorized representatives and delivered in duplicate
originals.
DARWIN DISCOVERY LIMITED ARRAY BIOPHARMA INC.
By: [ * ] /s/ Xxxxx Xxxxxxx
--------------------------
Name: [ * ] Xx. Xxxxx Xxxxxxx
-------------------------- Chief Operating Officer
Its: [ * ] Dated: April 22, 1999
--------------------------
Dated: [ * ]
--------------------------
[ * ] = Certain confidential information contained in this document, marked by
brackets, has been omitted and filed separately with the Securities and Exchange
Commission pursuant to Rule 506 of the Securities Act of 1933, as amended.
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