EXHIBIT 10.18
[CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTIONS OF THIS AGREEMENT
HAVE BEEN REDACTED AND HAVE BEEN SEPARATELY FILED WITH THE COMMISSION.]
TECHNOLOGY AGREEMENT
GENERATION OF KNOCKOUT MOUSE STRAINS
BETWEEN
DELTAGEN, INC.
0000 Xxxx Xxxxxx
Xxx Xxxxxx, XX 00000
and
PFIZER INC.
000 Xxxx 00xx Xx.
Xxx Xxxx, Xxx Xxxx 00000
WHEREAS, Deltagen, Inc. ("Deltagen") and Pfizer Inc. ("Pfizer"), (collectively,
"Parties") seek to collaborate in scientific research related to generation of
Knockout mouse strains;
WHEREAS, Deltagen has knowledge and experience in research and generation of
Knockout mice; and
WHEREAS, Pfizer wishes to obtain Knockout mice generated by Deltagen according
to specifications agreed by the Parties.
1. DEFINITIONS
As used in this Agreement the following terms shall have the meanings as
specified:
1.1 "Pfizer Affiliate" shall mean (i) any corporation or business
entity of which fifty percent (50%) or more of the securities or other ownership
interest representing the equity, the voting stock or general partnership
interest are owned, controlled or held, directly or indirectly, by Pfizer; or
(ii) any corporation or business entity which, directly or indirectly, owns,
controls, or holds 50 percent (50%) (or the maximum ownership permitted by law)
or more of the securities or other ownership interest representing the equity,
the voting stock or, if applicable, the general partnership interest, of Pfizer.
1.2 "Effective Date" shall mean the date of the signature of the
representative of the last of the Parties to execute this Agreement.
1.3 * * *.
1.4 * * *.
1.5 * * *.
* * * Confidential material redacted and separately filed with the Commission.
1.6 "Knockout Mouse Project" shall mean the creation, testing and
generation, by Deltagen, of Knockout mice.
1.7 * * *.
1.8 * * *.
1.9 * * *.
1.10 * * *.
1.11 "Milestone Payments" shall mean those payments set forth at
Appendix A attached hereto.
1.12 * * *.
1.13 * * *.
1.14 "Standard Procedure" shall mean the set of procedures
described in Appendix A, with respect to "Milestone 1" through "Milestone 5 ."
2. RESEARCH AND WORK TO BE CONDUCTED
2.1 Deltagen shall conduct one or more Knockout Mouse Projects at
the request of Pfizer on the terms and conditions of this Agreement. Pfizer will
request Deltagen in writing to begin work on each Knockout mouse project to be
conducted under this Agreement, such written notice to be provided to Deltagen
by an authorized representative of Pfizer in the form set forth in Appendix B.
Deltagen shall have the right to evaluate such request and the information
provided to Deltagen by Pfizer under Section 2.3 below, to determine whether
such requested Knockout mouse project is feasible. If, after good faith
discussion with Pfizer, Deltagen reasonably determines that such project is not
technically feasible, within the parameters of Appendix A, Deltagen shall so
advise Pfizer in writing and shall not be required to undertake such project.
* * * Confidential material redacted and separately filed with the Commission.
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2.2 For each Knockout Mouse Project, Deltagen will use reasonable
efforts to complete each Milestone in a timely fashion, as defined in Appendix
A.
2.3 Deltagen shall undertake up to * * * Knockout Mice Projects
according to the terms and conditions set forth in this Agreement. To initiate
each Knockout mouse project the parties agree to undertake, Deltagen and Pfizer
will establish a timetable for each project Milestone, and Pfizer shall:
2.3.1 Identify to Deltagen in writing each Knockout Mouse
Project to be initiated;
2.3.2 Disclose in writing to Deltagen any * * * necessary
for Deltagen * * * useful in completing Milestone 1 with respect to each
Knockout Mouse Project, as defined at Appendix A;
2.3.3 Consult with Deltagen to * * * for such Knockout
Mouse Project;
2.3.4 Transfer to Deltagen any * * * Pfizer deems
appropriate to transfer and which may be suitable for * * *; and
2.3.5 Identify and notify Deltagen in writing of the * * *
for each Knockout Mouse Project for which Deltagen is requested by Pfizer to
produce a Knockout Mouse. * * *.
2.4 For purposes of the schedule set forth in Appendix A, each
Knockout Mouse Project conducted hereunder shall commence fifteen (15) days
after Deltagen's receipt from Pfizer of all information and materials set forth
in Section 2.3 relating to such Knockout Mouse Project.
2.5 Each Knockout Mouse Project shall be deemed complete upon
Deltagen's completion of Milestone 5 (see Appendix A) and Deltagen's delivery
after the birth of the first generation of Knockout mice of at least * * * and *
* * which are * * *. Deltagen, or a period of six (6) months following the
completion of each Milestone 5 for each Knockout Mouse Project, shall retain a
small backup colony of * * * of Knockout mice * * * from such project consisting
of * * * for each Knockout Mouse Project). With respect to such backup colonies
of Knockout Mice, Pfizer shall for a period not to exceed six (6) months
following completion of Milestone 5 pay to Deltagen * * *. At Pfizer's request,
Deltagen will transfer the mice to Pfizer. All reasonable transportation and
transfer costs shall be paid by Pfizer. If Pfizer does not request transfer
within the six month period, Deltagen, following Deltagen's written notification
to Pfizer, shall dispose of the mice in accordance with all applicable laws and
regulations.
2.6 Deltagen shall use reasonable efforts to * * * and to generate
Knockout mice under each Knockout mouse project according to the specification
of Pfizer as set forth in Section 2.3 above.
2.7 Deltagen shall, at all times in its animal care and handling
activities related to this Agreement, comply with all applicable Federal, State
and local laws and
* * * Confidential material redacted and separately filed with the Commission.
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regulations, and assure that Deltagen animal facilities meet or exceed minimum
accreditation standards * * *.
3. PAYMENTS
3.1 Within thirty (30) days after the Effective Date and receipt
of invoice, Pfizer shall pay to Deltagen * * * of the total estimated cost for
the * * * Knockout mouse projects * * * as calculated in accordance with
Appendix A. Such payment shall be non-non-readable and shall be credited against
Milestones as set forth in Appendix A. Deltagen will provide invoices to Pfizer
for all payments due under this agreement. Invoices received by Pfizer shall be
paid within thirty (30) days of receipt.
3.2 Pfizer shall pay to Deltagen for each Milestone completed by
Deltagen:
3.2.1 The Milestone Payments set forth in Appendix A are
for all Knockout Mouse Projects wherein a * * * is requested by Pfizer under
Section 2.3 above, so long as the Project is initiated during the term of this
Agreement. The Milestone Payments for all Knockout Mouse Projects wherein * * *
is requested, shall be determined on a case-by-case basis, upon good faith
negotiations between the parties and shall be mutually agreed to in writing by
the parties.
3.3 Deltagen shall inform Pfizer, in writing, of its
completion of each Milestone, as defined in Appendix A. In such written notice,
Deltagen shall certify that the Knockout Mice delivered to Pfizer conform to the
Knockout Mice specifications for each Knockout Mouse Project set forth in
Appendix A, and Deltagen shall provide with each delivery of Knockout Mice to
Pfizer all of the information and data described in Appendix A for each Knockout
Mouse Project.
3.4 Subject to payment credit as provided in Section 3.1,
Pfizer shall pay all Milestones to Deltagen within thirty (30) days after
Pfizer's receipt of written representation from Deltagen of Deltagen's
completion of Milestones in compliance with the terms of this Agreement.
4. ON-SITE CONSULTATION
4.1 Pfizer may reasonably request on-site consultations by
Deltagen personnel relating directly to projects under this Agreement. Pfizer
will reimburse Deltagen for all reasonable and reasonably documented travel
expenses associated with such onsite consultations by Deltagen personnel.
4.2 Upon reasonable notice to Deltagen and upon reasonable terms
and conditions agreed upon by Deltagen and Pfizer, Pfizer shall be entitled to
perform site visits to Deltagen facilities involved in the Knockout Mouse
Projects to inspect the facilities for compliance with generally accepted
scientific and animal care procedures including, but not limited to those set
forth in Appendix A and Section 2.7 above.
* * * Confidential material redacted and separately filed with the Commission.
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5. TERM AND TERMINATION
5.1 The term of this Agreement shall commence on the Effective
Date and shall remain in effect until the earlier of either (a) termination of
this Agreement pursuant to the completion by Deltagen of all Milestones under
this Agreement or (b) two (2) years from the Effective Date; provided, however,
that all applicable obligations of Deltagen and Pfizer under this Agreement
shall remain in force with respect to any Knockout Mouse Project requested by
Pfizer and initiated by Deltagen which remains ongoing prior to the date set
forth in subsection (b) of this paragraph.
5.2 * * *. Should Pfizer at any time during the Knockout Mouse
Project terminate the development and creation or completion of a specific
Knockout Mouse Project, Pfizer shall make the next Milestone Payment
corresponding to that work being conducted by Deltagen to complete such
Milestone at the time of termination, as if Deltagen had completed the
Milestone, regardless of whether such Milestone has been reached.
5.3 Deltagen may terminate a Knockout Mouse Project upon
Deltagen's identification of technical difficulty beyond the reasonable control
of Deltagen which would prevent Deltagen from completing the Project using
commercially reasonable efforts, provided that Deltagen has informed Pfizer, in
writing, of the details of such technical difficulty, and the parties have had
an opportunity to discuss the circumstances to attempt to resolve the technical
difficulty in a reasonable manner. Pfizer is not entitled to a refund of any
past Milestone payments paid if a project is terminated as the result of
technical difficulty beyond the control of Deltagen.
5.4 If either of the Parties is in breach of any obligation under
this Agreement, the party complaining of said breach shall give written notice
to the breaching party to remedy such breach. If the breach is not remedied
within 60 days following the receipt of such notice, the party complaining of
breach may terminate this Agreement upon written notice to the other party at
any time and with immediate effect. Any such termination will be without
prejudice to any other rights which the party complaining of breach may have as
a result of any breach of this Agreement.
6. CONFIDENTIALITY
6.1 Except as otherwise provided pursuant to Section 7.2, each
party shall treat all information which has been received from the other party
as strictly confidential ("Information"), and shall not make such Information
available to any third party without the express prior written consent of the
other party and only to use such Information for the purposes expressly provided
in this Agreement. For this purpose, employees and consultants of the parties
shall be bound by obligations of confidentiality and secrecy no less strict than
those set out herein and shall not be regarded as third Parties.
6.2 The above obligations shall not apply or cease to apply to
Information which the recipient can show:
(a) has become generally available to the
public other than through violation of this undertaking;
* * * Confidential material redacted and separately filed with the Commission.
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(b) was already in the recipient's
possession prior to its acquisition from the disclosing party as reasonably
demonstrated by competent written evidence of the same.
(c) was independently developed without use
of information received from the disclosing party as reasonably demonstrated by
competent written proof of the same.
(d) has been received from a third party,
under no obligation to maintain the Information as confidential; or
(e) is required to be disclosed by law or
court order, provided that notice is promptly delivered to the other party in
order to provide an opportunity to challenge or limit such disclosure.
A statutory obligation to disclose confidential information to governmental
authorities in connection with the Food and Drug Administration product
registration procedures is not subject to this secrecy obligation.
6.3 This obligation of confidentiality shall survive the
expiration and/or termination of this Agreement for a period * * * years.
6.4 Upon expiration or termination of this Agreement, or at any
time upon the disclosing party's written request, the receiving party shall
destroy, or at the written request of the disclosing party, deliver to the
disclosing party any and all Information (including copies) received or
generated hereunder, except that the receiving party may, for archival purposes,
maintain one copy of the Information in its confidential legal files for the
purpose of complying with this agreement.
7. OWNERSHIP OF RIGHTS
7.1 * * *.
7.2 * * *
* * * Confidential material redacted and separately filed with the Commission.
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7.3 * * *.
7.4 * * *.
7.5 * * *.
* * * Confidential material redacted and separately filed with the Commission.
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7.6 After Pfizer has made all applicable Milestone Payments, or
other payments under Section 3.2 above, and upon delivery by Deltagen to
Pfizer's designated carrier (FOB), title shall transfer to Pfizer for each
Knockout Mouse Project and * * *.
8. MISCELLANEOUS
8.1 PUBLICATION. If Pfizer publishes any information, data or
material regarding the Knockout mice contemplated under this Agreement, Pfizer
shall acknowledge within the publication, the contribution of Deltagen to the
generation of such mouse or mice.
8.2 FORCE MAJEURE. Neither party shall be liable for its failure
to perform its obligations under this Agreement due to contingencies beyond its
reasonable control, including but not limited to strikes, riots, wars, fire,
flood, accident, labor disputes, embargoes, inability to obtain export or import
license, acts of God, or acts in compliance with any governmental or state law,
regulation or other.
8.3 AMENDMENTS. Amendments or modifications of this Agreement may
only be made by a written Agreement executed by both Parties.
8.4 NOTICES. All notices required or permitted hereunder shall be
given in writing and sent postage prepaid by first class certified or registered
mail, or sent by a nationally recognized express courier service, or hand
delivered at the following addresses:
If to Deltagen:
* * *
If to Pfizer:
* * *
8.5 REPRESENTATIONS AND WARRANTIES. Each party represents and
warrants that:
* * * Confidential material redacted and separately filed with the Commission.
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8.5.1 It will use commercially reasonable efforts to
complete its obligations under this Agreement in compliance with any and all
applicable federal, state, or local laws, and regulations.
8.5.2 * * *.
8.6 * * *.
8.7 APPLICABLE LAW AND VENUE. This Agreement shall be governed by
and construed in accordance with the laws of the State of Delaware as though
made and performed in said state without regard to its conflict of law
revisions.
8.8 COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
8.9 U.S. EXPORT LAWS AND REGULATIONS. Without limitation, each
party shall comply with all laws and regulations of the United States relating
to the export of biological materials, products and technical information.
8.10 ENTIRE AGREEMENT. This Agreement contains the entire
understanding of the parties with respect to the subject matter hereof. All
express or implied Agreements and understandings, either oral or written,
heretofore made are expressly superseded by this Agreement.
8.11 INDEPENDENT CONTRACTORS. It is expressly agreed that Deltagen
and Pfizer shall be independent contractors and that the relationship between
the two parties shall not constitute a partnership, joint venture or agency.
Neither Deltagen nor Pfizer shall have the authority to make any statements,
representations or commitments or any kind, or to take any action, which shall
be binding on the other, without the prior consent of the party to do so.
8.12 WAIVER. The waiver by either party of any right hereunder or
the failure to perform or of a breach by the other party shall not be deemed a
waiver of any other right hereunder or of any other breach or failure by said
other party whether of a similar nature or otherwise.
* * * Confidential material redacted and separately filed with the Commission.
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AGREED AND ACCEPTED:
DELTAGEN. INC. PFIZER INC.
By /s/ Xxxxxxx Xxxxxxxx By /s/ Xxxxxx X. Xxxxx, Xx.
--------------------------- ----------------------------
NAME Xxxxxxx Xxxxxxxx NAME Xxxxxx X. Xxxxx, Xx.
------------------------ ----------------------------
TITLE President TITLE Vice President
------------------------ ----------------------------
DATE December 17, 1998 DATE December 22, 1998
------------------------ ----------------------------
* * * Confidential material redacted and separately filed with the Commission.
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APPENDIX A
[Three pages of milestone descriptions redacted and separately filed with the
Commission]
* * *
* * * Confidential material redacted and separately filed with the Commission.
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APPENDIX B
FORM NOTIFICATION LETTER FOR INITIATION OF A NEW KNOCKOUT MOUSE PROJECT
(Template follows)
* * * Confidential material redacted and separately filed with the Commission.
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(Pfizer letterhead)
March 3, 1998
Xxxx Xxxxxxxx, Ph.D.
President
Deltagen, Inc.
0000 Xxxx Xxxxxx
Xxx Xxxxxx, XX 00000
Dear Xxxx,
This letter is to provide notice to Deltagen of Pfizer's request to Deltagen to
initiate work on a Knockout Mouse Project under the terms and conditions of the
Technology Agreement between Deltagen, Inc. and Pfizer, dated __________ (the
"Agreement"), including but not limited to, the confidentiality obligations of
the Agreement.
The Knockout Mouse Project to be initiated is described as follows:
The Pfizer contact scientist for technical information regarding the project
will be:
Pfizer requests that Deltagen begin to work to develop the above described
Knockout mouse on the terms and conditions of the above-referenced Agreement.
Sincerely,
Pfizer's Signatory
Agreed,
----------
Deltagen
* * * Confidential material redacted and separately filed with the Commission.
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