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EXHIBIT 10.28
ARIAD PHARMACEUTICALS, INC. HAS OMITTED FROM THIS EXHIBIT 10.28 PORTIONS OF THE
AGREEMENT FOR WHICH ARIAD PHARMACEUTICALS, INC. HAS REQUESTED CONFIDENTIAL
TREATMENT FROM THE SECURITIES AND EXCHANGE COMMISSION. THE PORTIONS OF THE
AGREEMENT FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED ARE MARKED
WITH AN ASTERISK AND SUCH CONFIDENTIAL PORTIONS HAVE BEEN FILED
COLLABORATIVE AGREEMENT
between
INCYTE PHARMACEUTICALS, INC.
and
ARIAD PHARMACEUTICALS, INC.
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This Agreement is entered into as of this day of ___________, 1997 by
and between ARIAD Pharmaceuticals, Inc., ("ARIAD"), a Delaware corporation
having its principal place of business at 00 Xxxxxxxxxx Xxxxxx, Xxxxxxxxx, XX
00000-0000, and Incyte Pharmaceuticals, Inc., a Delaware corporation ("Incyte"),
having its principal place of business at 0000 Xxxxxx Xxxxx, Xxxx Xxxx, XX
00000.
RECITALS
WHEREAS, Incyte owns or has rights in certain patent rights and
know-how regarding certain high-throughput partial cDNA sequencing, cloning, and
data analysis technologies; and
WHEREAS, Incyte has compiled and is compiling, and owns, certain
information and data regarding certain cDNAs in confidential databases which may
be useful in the study of biological phenomena; and
WHEREAS, Incyte owns or has rights in certain patent rights and
know-how regarding certain cDNAs as well as certain of the proteins they encode;
and
WHEREAS, Incyte and Hoechst Aktiengesellschaft and Hoechst Xxxxxx
Xxxxxxx, Inc. (collectively ("HMRI") have entered into an Amended and Restated
Collaborative Agreement of even date herewith providing [*] to HMRI (the
"Incyte-HMRI [*] Agreement"); and
WHEREAS, ARIAD and Hoechst Xxxxxx Xxxxxxx, intend to establish a joint
venture through the formation of Hoechst-ARIAD Genomics Center, LLC, a Delaware
Limited Liability Company (the "HMRI-ARIAD JV"); and
WHEREAS, ARIAD desires to obtain access to Incyte's LifeSeq(R)
Database, and to obtain certain licenses under certain of Incyte's patent rights
and know-how, to conduct research and development with respect to certain cDNAs
and the proteins they encode in the development and commercialization of
diagnostics and pharmaceuticals;
NOW, THEREFORE, the Parties agree as follows:
1.0 DEFINITIONS.
The following terms shall have the following meanings:
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1.1 "Access Term": shall mean the period commencing on the Installation
Date and ending on[*] , during which ARIAD shall have access to the
LifeSeq(R) Database under the terms and conditions of this Agreement.
1.2 "Annotation Information": shall mean information associated with
individual cDNAs in the LifeSeq(R) Database, including, but not limited
to, Gene Expression Profiles, homology information, gene cluster
identifiers, etc.
1.3 "Antisense Field of Use": shall mean the prevention or treatment of any
disease, state or condition in humans by use of one or more
oligonucleotides or modified oligonucleotides which bind either (i) to
mRNA to block the translation of mRNA in vivo to inhibit, prevent
and/or alter protein production, or (ii) to DNA to prevent the
transcription of DNA into the mRNA copy of the gene in vivo; provided,
however, that the Antisense Field of Use does not include [*].
1.4 "Antisense Product(s)": shall mean oligonucleotides or modified
oligonucleotides derived from or targeted to Gene Product(s) for use in
the Antisense Field of Use.
1.5 "ARIAD Affiliate(s)": shall mean any corporation, firm, partnership, or
other legal entity, which is
a) directly or indirectly owned or under common ownership by
ARIAD to the extent of which the common stock or other equity
ownership thereof is one hundred percent (100%) owned by
ARIAD; provided however, that where local laws require a
minimum percentage of local ownership, the status of ARIAD
Affiliate will be established if ARIAD directly or indirectly
owns or controls at least one hundred percent (100%) of the
maximum ownership percentage that may, under such local laws,
be owned or controlled by foreign interests;
b) the "HMRI-ARIAD JV".
1.6 "cDNA": shall mean a DNA copy of human mRNA.
1.7 "cDNA Clone(s)": shall mean an individual plasmid vector and cDNA
insert, which cDNA is usually a partial gene, and not necessarily a
full length gene.
1.8 "cDNA Template": shall mean a specific, purified cDNA Clone derived
from a given cDNA library and prepared for RTI Analysis, from which
partial gene sequence information is obtained. There may be many
different cDNA Templates which correspond to a single gene.
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1.9 "Consensus cDNA Sequence": shall mean DNA Sequence Information
corresponding to the same gene, as determined by homology and
overlap/cluster analysis.
1.10 "Database Information": shall mean all or any part of the Annotation
Information and DNA Sequence Information in the LifeSeq(R) Database as
applicable.
1.11 "Designated Gene Product": shall mean a given Gene Product which is
intended for research and development, or other use by ARIAD in
accordance with the terms and conditions of this Agreement, and is
"Used By ARIAD" as defined in Section 1.41 below.
1.12 "Diagnostic Field of Use": shall mean (a) the diagnosis and monitoring
of any disease, state or condition in humans (including without
limitation, the diagnosis of disease susceptibility), (b) the selection
of a method of prevention or treatment of any disease, state or
condition in humans, and (c) the determination of genetic traits in
humans; [*].
1.13 "Diagnostic Product(s)": shall mean any product or service derived from
or directed to Gene Product(s) for use in the Diagnostic Field of Use.
1.14 "DNA Sequence Information": shall mean (a) human nucleotide sequence of
cDNA Templates [*]obtained from RTI Analyses released to the LifeSeq(R)
Database from internal sources, (b) sequence information reasonably
available to Incyte from external sources including GenBank DNA,
GenBank protein, dbEST, and at Incyte's discretion, such other publicly
available databases and incorporated into the LifeSeq(R) Database, or
(c) otherwise provided by Incyte to ARIAD; as applicable.
1.15 "Drug Product(s)": shall mean compositions of matter which are ligands,
modulators or inhibitors of Gene Product(s) such as small molecules,
antibodies, agonists, and/or antagonists for use in the prevention or
treatment of any disease, state or condition in humans; provided,
however, that Drug Product(s) shall not include Antisense Product(s).
1.16 "Full Length Clone": shall mean, with respect to a given human gene and
in the case where no Full Length Insert or Full Length Contig exists, a
specific, purified cDNA Clone containing the nucleotide sequence of the
entire amino acid coding region of such human gene, which is obtained
by Incyte independent of those services regularly performed by Incyte
to produce or generate Database Information, [*].
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1.17 "Full Length Contig": shall mean, with respect to a given human gene,
two or more isolated cDNA Templates represented in the LifeSeq(R)
Database determined by Incyte, using cluster/overlap analysis and by
identifying a putative initiation site and/or signal sequence by
homology analysis, to correspond to the entire amino acid coding region
of such human gene. A Full Length Contig shall not be a Full Length
Clone.
1.18 "Full Length Insert": shall mean, with respect to a given human gene, a
single isolated cDNA Template determined by Incyte, by identifying a
putative initiation site and/or signal sequence by homology analysis,
to contain the entire amino acid coding region of such human gene,
which is obtained by Incyte in the performance of those services
regularly performed by Incyte to produce or generate Gene Expression
Profiles and DNA Sequence Information intended to be released to the
LifeSeq(R) Database. A Full Length Insert shall not be a Full Length
Clone.
1.19 "Gene Expression Profile(s)": shall mean a listing of human cDNAs by
name with each cDNA assessed by a homology score to be:
an exact match to a known gene sequence, or
a match to an Incyte cDNA, or a homolog of
a known gene or proprietary Incyte cDNA, or
a new clone with no prior identified homology or overlap.
This profile, resulting from a given RTI Analysis released to the
LifeSeq(R) Database, includes transcript abundance and certain
annotation information regarding such cDNA derived from Incyte and
public databases, but does not include DNA Sequence Information.
1.20 "Gene Product(s)": shall mean all Database Information and any cDNA
Clone(s) corresponding to a given gene, provided to ARIAD in accordance
with and during the term of this Agreement, and products or materials
that are materially developed or materially derived therefrom, e.g.
partial cDNAs, DNA's, genes, full length cDNAs corresponding thereto,
RNAs, peptides, polypeptides and proteins encoded thereby; provided,
however, that Gene Product(s) shall not include Drug Product(s).
1.21 "Incyte Know-how": shall mean certain information, data and biological
materials proprietary to Incyte either at the time of disclosure to
ARIAD or at the time of Use By ARIAD as such time is specifically
referenced under the applicable terms and conditions of this Agreement
(i.e. not already known to ARIAD, or not generally available to the
public or otherwise part of the public domain at the time of disclosure
to ARIAD, as can be demonstrated by written
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records created prior to such disclosure), consisting of or directly
and solely relating to Database Information, including Proprietary
Database Information and cDNA Clone(s) provided to ARIAD in accordance
with and during the term of this Agreement or such other know-how of
Incyte expressly provided by Incyte to ARIAD. Incyte Know-how does not
include any rights under any Incyte Patent Rights.[*]
1.22 "Incyte Patent Rights": shall mean certain patents of Incyte directed
to the composition of matter of Gene Product(s); (including inventors'
certificates) and applications therefor throughout the world and
substitutions, extensions, reissues, renewals, divisions, continuations
or continuations-in-part thereof or therefor, which Incyte now or
hereafter during the term of this Agreement owns or controls, or which
are otherwise the property of Incyte.[*]
[*]
1.24 "Incyte Technology": shall mean, collectively, Incyte Know-how and
Incyte Patent Rights.
1.25 "Installation Date": shall mean the date on which Incyte first installs
and makes the LifeSeq(R) Database operational at the Installation Site.
1.26 "Installation Site": shall mean the research facilities of [*] where
Incyte will provide [*]on-site access to Incyte's LifeSeq(R) Database,
in accordance with the Database Access Plan and subject to appropriate
provisions of this Agreement, including Section 5.0 and the provisions
of Section 2.3 and Exhibit A.
1.27 "The Letter Agreement") shall mean the agreement of even date herewith
by and among Incyte, HMRI and ARIAD, which sets forth a mutual
understanding regarding the integration of this Agreement and the
Incyte-HMRI LifeSeq(R) Agreement and certain rights and obligations of
HMRI, ARIAD and the HMRI-ARIAD JV thereunder.
1.28 "LifeSeq(R) Database": shall mean Incyte's proprietary database of
human Annotation Information and DNA Sequence Information and
corresponding cDNA Clones as of the Effective Date, and as updated
thereafter during the Access Term to include additional Annotation
Information and/or DNA Sequence Information and corresponding cDNA
Clones, together with related software and documentation, as described
generally in Exhibit C, which is made available by Incyte on a
non-exclusive basis to ARIAD and other subscribers and subject to the
grant of license rights as described in Section 3.0 [*].
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1.29 "Net Sales": shall mean the gross invoiced sales of Product (said
Product being in the final form intended for use by the end user), by
ARIAD, its Affiliates or its sublicensees to unrelated third parties
less any of the following charges or expenses, to the extent each is
actually incurred and included in the invoiced sales price and does not
exceed the reasonable and customary amount for such item in the market
in which such sale occurred:
(a) credits, allowances and rebates to, and chargebacks from
the account of, such customers for spoiled, damaged, out-dated
and returned Product;
(b) actual freight and insurance costs incurred in
transporting the Product in final form to such customers;
(c) trade discounts, cash discounts, quantity discounts,
rebates and other price reduction programs;
(d) sales, value-added and other direct taxes; and
(e) customs duties, surcharges and other governmental charges
incurred in connection with the exportation or importation of
the Product in final form.
1.30 "Party": shall mean ARIAD, or Incyte and, when used in the plural,
shall mean ARIAD and Incyte.
1.31 "Pending Claim": shall mean a claim pending in an Incyte patent
application that has not been allowed, and for which claim Incyte (or
ARIAD as applicable) is using reasonable efforts to obtain allowance.
1.32 "Phase III Clinical Trial": shall mean that portion of the clinical
development program which provides for the continued trials of a
specific Product on sufficient numbers of patients to establish the
safety, efficacy and regulatory approval to a standard consistent with
that of the U.S. Food and Drug Administration for Phase III clinical
trials or foreign equivalent.
1.33 "Product(s)": shall mean Drug Product(s), Diagnostic Product(s),
Antisense Product(s) and/or Therapeutic Protein Product(s), singly or
in combination as applicable.
1.34 "Proprietary Database Information": shall mean Database Information,
which at the time of disclosure to ARIAD or the time of Use By ARIAD,
as such time is specifically referenced under the applicable terms and
conditions of this
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Agreement, which i) was not part of the public domain or ii) was not
already known to ARIAD (with the right to use) independent of the
Database Information, as can be demonstrated by written records of
ARIAD existing prior to the time of disclosure.[*]
1.35 "Regulatory Approval": shall mean the government approvals required to
market a product in a given country, including, but not limited to,
product registration(s) and price and marketing approval(s), as
applicable, in such country.
1.36 "Research Field of Use": shall mean all internal research applications
of Gene Product(s), including, but not limited to conducting research
in the Diagnostic Field of Use, the Antisense Field of Use, the
Therapeutic Field of Use and in the research, identification,
development and commercialization of Drug Products [*]
1.37 "RNA-based Transcript Imaging Analysis" or "RTI Analysis": shall mean
the use of high-throughput partial EST cDNA sequencing and computer
analysis to analyze the expression profile of transcripts present in a
given cell or tissue type. DNA sequence, sequence homology and
transcript abundance information is compiled from cDNA Templates
randomly sampled from a cDNA library.
[*]
1.39 "Therapeutic Field of Use": shall mean the prevention or treatment of
any disease, state or condition in humans by any means, (including
without limitation, gene therapy), excluding the Antisense Field of
Use[*]
1.40 "Therapeutic Protein Product(s)": shall mean any product or service,
including gene therapy, which uses a protein, peptide or polypeptide
which is a Gene Product in the prevention or treatment of any disease,
state or condition in humans, including gene therapy products; provided
however, that Therapeutic Protein Product(s) does not include Antisense
Product(s).
1.41 "Used or Use By ARIAD": shall mean the use of Database Information or a
cDNA Clone obtained from Incyte hereunder which would constitute Incyte
Know-How at the time of such use by ARIAD and which meets any or all of
the following criteria:
[*]
1.42 "Valid Claim": shall mean a claim of an issued or granted and unexpired
Incyte Patent Right which has not been held unenforceable, unpatentable
or invalid by a
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decision of a court or governmental body of competent jurisdiction,
unappealable or unappealed within the time allowed for appeal, which
has not been rendered unenforceable through disclaimer or otherwise,
which has not been abandoned, or which has not been lost through an
interference proceeding.
2.0 DATABASE ACCESS.
2.1 Access to the LifeSeq(R) Database.
2.1.1 Access Grant. During the Access Term, Incyte hereby grants to
ARIAD and its Affiliates, including the HMRI-ARIAD JV, non-exclusive
access and the right to use the LifeSeq(R) Database and Database
Information solely in accordance with the terms and conditions of this
Agreement at the Installation Site. ARIAD Affiliates (other than the
HMRI-ARIAD JV which shall be governed by the terms of the Letter
Agreement) shall have all of the rights (with the corresponding
obligations) of ARIAD hereunder as fully as if they were parties
hereunder.
2.1.2 Installation. At a date and time mutually acceptable, Incyte
agrees to provide ARIAD with on-site access to the LifeSeq(R) Database
at the Installation Site. Any additional implementation or support
services provided by Incyte to ARIAD shall be in a manner consistent
with and under terms consistent with those of comparable users of the
LifeSeq(R) Database.
2.1.3 Updated Releases and Updates. During the Access Term, Incyte
shall provide the Installation Site with data updates of newly released
DNA Sequence Information and Annotation Information typically available
on a [*]basis, and updated releases of the LifeSeq(R) Database when
available. Incyte shall provide the Installation Site with such updated
releases and data updates using a written receipt and acknowledgment
system and on electronic media as applicable. [*]Incyte may, at a
future date provide access and updates to the LifeSeq(R) Database via
on-line services via secure lines.
2.2 Database Access Plan.
2.2.1 Database Access Committee. Within ten (10) days after the
Effective Date, Incyte and ARIAD each shall designate their respective
representatives on a joint ARIAD Database Access Committee, which shall
meet prior to the Installation Date. This Database Access Committee
shall be responsible for preparing the Database Access Plan,
supervising the installation and use of the LifeSeq(R) Database at the
Installation Site, including the implementation of and adherence to the
Database Access Plan and the other security requirements of Section 2.3
below. Each party shall bear all out-of-pocket expenses of its own
representatives on the Database Access Committee.
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2.2.2 Database Access Plan. Within thirty (30) days after the Effective
Date, the Database Access Committee shall prepare and provide Incyte
and ARIAD with the Database Access Plan, subject to such modifications
as are acceptable to Incyte and ARIAD. The Database Access Plan shall
establish mechanisms to document access to the LifeSeq(R) Database and
the Database Information, [*], and assure compliance with the grant of
access under Section 2.1.1 above and the use limitations and security
requirements of Section 2.3 below. Upon preparation of the Database
Access Plan, with such modifications as are mutually acceptable to
Incyte and ARIAD, the Database Access Plan shall be incorporated into
this Agreement as if set forth in full herein.
2.3 Use Restrictions and Security Requirements
2.3.1 Ownership. ARIAD hereby acknowledges that (a) Incyte has expended
significant resources and efforts to develop the LifeSeq(R) Database
and the Database Information, (b) the LifeSeq(R) Database represents a
highly valuable and confidential asset, and is the principal product of
Incyte, (c) Incyte is willing to grant ARIAD access to the LifeSeq(R)
Database in reliance upon the assurance by ARIAD that it shall use all
reasonable efforts (including not less than those efforts that ARIAD
uses to protect its own confidential information of like character) to
protect the LifeSeq(R) Database from unauthorized disclosure and use at
each Installation Site, and (d) the LifeSeq(R) Database at all times
during the term of this Agreement shall remain, the sole and exclusive
property of Incyte.
2.3.2 Designated CPU's at the Installation Site. The LifeSeq(R)
Database, including the DNA Sequence Information, shall only be
installed at the Installation Site on[*]. A second copy of the
database(s) may reside[*]. A back-up computer or fileserver may be
designated such that a copy of the database may be installed on this
computer in the event that the primary computer fails. Under no
circumstances will the LifeSeq(R) Database, including the DNA Sequence
Information be installed on any designated CPU(s) which would allow
unauthorized network access (e.g. third party access via the Internet).
All other database access is prohibited, including access by facilities
of ARIAD other than those designated as Installation Sites, including
facilities of Affiliates, academic collaborators, licensees, or
otherwise.[*]
2.3.3 Permitted Use.
(a) During the Access Term, ARIAD shall have the right to use
the LifeSeq(R) Database and Database Information solely for
its own internal use by authorized personnel of ARIAD and the
HMRI-ARIAD JV at the
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Installation Site in secure work facilities of the
Installation Site in accordance with the terms and conditions
of this Agreement and the Database Access Plan. ARIAD shall
have no access to or right to use the LifeSeq(R) Database
except at the Installation Site under the terms and conditions
of this Agreement.
(b) ARIAD shall not disclose the LifeSeq(R) Database, or any
portion thereof, to any third party[*] . ARIAD shall not
disclose or transfer Database Information, or any portion
thereof, to any third party, except for [*]in accordance with
the provisions of Section 2.3.4 and Article 5.0.
(c) ARIAD shall not transfer the LifeSeq(R) Database or the
Database Information, or any portion thereof, from a
designated CPU at the Installation Site, except for[*].
(d) Except as otherwise agreed by Incyte in writing, ARIAD
shall not reproduce, adapt, prepare derivative works based
upon, or distribute copies (by any means whatsoever whether
now known or hereafter invented) of the LifeSeq(R) Database,
including any substantial portion of the Database Information
from any field of the database, for any purpose except as
expressly permitted under this Agreement.
2.3.4 Designated Gene Product(s). During the Access Term and pursuant
to[*], ARIAD shall make [*]in accordance with the terms and conditions
of this Agreement. ARIAD shall then have the right to, [*]subject to
the appropriate terms and conditions of this Agreement, including
Article 5.0. Any use of Database Information not in accordance with the
above is expressly prohibited.
2.3.5 Records. ARIAD shall maintain records of access to and use of the
LifeSeq(R) Database and the Database Information, sufficient to enable
ARIAD and Incyte to determine, and monitor compliance with, their
respective rights and obligations under this Agreement (e.g. laboratory
notebooks and such other records as are customary for documenting
research and product development activities). No more than once a year
unless as otherwise agreed, at the request and the expense of Incyte,
upon at least ten (10) days' prior written notice, ARIAD shall permit
an agent appointed by Incyte and acceptable to ARIAD to examine these
records solely to the extent necessary to verify the fulfillment of
ARIAD's obligations under this Agreement, provided that such agent has
entered into a confidentiality agreement with ARIAD substantially
similar to the confidentiality provisions of this Agreement limiting
the use and disclosure of such information to purposes germane hereto.
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2.3.6 Loss, Theft, Unauthorized Disclosure or Use. ARIAD promptly shall
notify Incyte of any loss, theft or unauthorized disclosure or use of
the LifeSeq(R) Database or the Database Information which comes to
ARIAD's attention.
2.3.7 Termination of the Access Term. Upon termination or expiration of
the Access Term, ARIAD shall[*]. ARIAD agrees to perform with Incyte a
mutually acceptable final accounting of those Designated Gene
Product(s) which are subject to one or more of the licenses granted to
ARIAD under Article 3.0 below.
2.4 Training.
2.4.1 At a time mutually acceptable to Incyte and ARIAD, Incyte shall
provide ARIAD and the HMRI-ARIAD JV with [*]days of training services
with respect to the Installation Site, at Incyte's training facility in
Palo Alto, California, regarding the use of the LifeSeq(R) Database.
ARIAD and the HMRI-ARIAD JV may designate not more than [*]employees to
attend each such training at Incyte, or such other number as mutually
agreed. Each party shall bear all accrued and out-of-pocket expenses of
its own employees in connection therewith.
2.4.2 At times mutually acceptable to Incyte and ARIAD and the
HMRI-ARIAD JV after the Installation Date at the Installation Site,
Incyte shall provide ARIAD and the HMRI-ARIAD JV with [*]days of
training services, at the Installation Site, regarding the use of the
LifeSeq(R) Database. The number of employees to receive such training
shall be in the reasonable discretion of ARIAD and the HMRI-ARIAD JV.
Each party shall bear all accrued and out-of-pocket expenses of its own
employees in connection therewith.
2.4.3 Incyte shall provide ARIAD and the HMRI-ARIAD JV with such
additional training services in such manner and on such terms and
conditions as Incyte makes generally available to comparable
subscribers to the LifeSeq(R) Database.
3.0 LICENSE AND OPTION GRANTS.
3.1 Non-Exclusive License under Incyte Technology -- Research. During the
Access Term, Incyte hereby grants to ARIAD a perpetual, worldwide,
non-exclusive license (with a right to sublicense as provided in
Section 3.6) under the Incyte Technology to conduct research with
respect to Designated Gene Product(s) and to discover, develop, make,
have made, use and sell Drug Product(s) in the Research Field of Use;
provided however, that with respect to the Research Field of Use such
grant does not include the right to sell Gene Product(s).
3.2 Non-Exclusive License under Incyte Know-how -- Diagnostic, Therapeutic
and Antisense. During the Access Term, Incyte hereby grants to ARIAD a
perpetual,
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worldwide, non-exclusive license (with a right to sublicense as
provided in Section 3.6) under the Incyte Know-how with respect to
Designated Gene Product(s) to discover, develop, make, have made, use
and sell Diagnostic Product(s) in the Diagnostic Field of Use, and/or
Antisense Product(s) in the Antisense Field of Use, and/or Therapeutic
Protein Product(s) in the Therapeutic Field of Use.
3.3 Non-Exclusive License under Incyte Patent Rights in the Diagnostics
Field of Use. During the Access Term and upon Incyte's receipt of
written notice of election to license a Designated Gene Product under
Incyte Patent Rights, Incyte thereby grants to ARIAD a perpetual
worldwide non-exclusive license (with the right to sublicense as
provided in Section 3.6), under Incyte Patent Rights directed to such
Designated Gene Product to discover, develop, make, have made, use and
sell Diagnostic Product(s) in the Diagnostics Field of Use.
3.4 Option to Exclusive License(s) under Incyte Patent Rights --
Therapeutic Field of Use and Antisense Field of Use.
3.4.1 Therapeutic Field of Use.
a. Option Grant. With respect to each Designated Gene Product
which ARIAD identifies pursuant to Section 3.4.1(b) below and pays the
applicable option fee to Incyte pursuant to Section 3.4.1(c) below, and
subject to the provisions of Section 3.5 below, Incyte hereby grants to
ARIAD an exclusive option (the "Therapeutic Option"), during the
applicable option period, to obtain a perpetual, worldwide, exclusive
license under the Incyte Patent Rights directed to the Designated Gene
Product to discover, develop, make, have made, use and sell Therapeutic
Protein Product(s) in the Therapeutic Field of Use.[*]
b. Option Notice. Subject to the provisions of Section 3.5
below, prior to the expiration of the Access Term, ARIAD may identify
each Designated Gene Product which shall be subject to the Therapeutic
Option solely by giving Incyte express written notice specifying such
Designated Gene Product.
c. Option Fee. With respect to each Designated Gene Product
within the LifeSeq(R) Database, the option fee shall [*], and the
option period shall be [*]from the date of notice specifying that such
Designated Gene Product shall be subject to the Therapeutic Option.
d. License Exercise and Grant. Subject to the provisions of
Section 3.5 below, ARIAD may exercise the Therapeutic Option with
respect to any Designated Gene Product which is subject to a
Therapeutic Option solely by giving Incyte express written notice of
exercise, specifying such Designated Xxxx
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Product to which the license shall apply, and by paying to Incyte a
license fee of [*]prior to the expiration of the applicable option
period. Upon Incyte's timely receipt of written notice of ARIAD's
exercise and payment of the applicable license fee with respect to such
Designated Gene Product, and subject to the provisions of Section 3.5
below, Incyte grants to ARIAD a perpetual, worldwide exclusive license
(with a right to sublicense as provided in Section 3.6) under the
Incyte Patent Rights directed to such Designated Gene Product to
discover, develop, make, have made, use and sell Therapeutic Protein
Product(s) in the Therapeutic Field of Use.
3.4.2 Antisense Field of Use.
a. Option Grant. With respect to each Designated Gene Product
which ARIAD identifies pursuant to Section 3.4.2(b) below and pays the
applicable option fee to Incyte pursuant to Section 3.4.2(c) below and
subject to the provisions of Section 3.5 below, Incyte hereby grants to
ARIAD Antisense Product(s) in the Antisense Field of Use.[*]
b. Option Notice. Subject to the provisions of Section 3.5
below, prior to the expiration of the Access Term, ARIAD may identify
each Designated Gene Product which shall be subject to the Antisense
Option solely by giving Incyte express written notice specifying such
Designated Gene Product.
c. Option Fee. With respect to each Designated Gene Product
within the LifeSeq(R) Database Product(s), the option fee shall be
[*]and the option period shall be [*] from the date of notice
specifying that such Designated Gene Product shall be subject to the
Antisense Option.
d. License Exercise and Grant. Subject to the provisions of
Section 3.5 below, ARIAD may exercise the Antisense Option with respect
to any Designated Gene Product which is subject to a Antisense Option
solely by giving Incyte express written notice of exercise, specifying
such Designated Gene Product to which the license shall apply, and by
paying to Incyte a license fee of [*]prior to the expiration of the
applicable option period. Upon Incyte's timely receipt of written
notice of ARIAD's exercise and payment of the applicable license fee
with respect to such Designated Gene Product, and subject to the
provisions of Section 4.5 below, Incyte grants to ARIAD a perpetual,
worldwide exclusive license (with a right to sublicense as provided in
Section 3.6) under the Incyte Patent Rights directed to such Designated
Gene Product to discover, develop, make, have made, use and sell
Antisense Product(s) in the Antisense Field of Use.
3.4.3 Development Obligations.
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15
(a) Due Diligence. [*]ARIAD agrees to use due diligence to pursue the
development, governmental approval and commercial exploitation of
Product(s) pursuant to an exclusive license with respect to any
Designated Gene Product. ARIAD's obligation to use due diligence shall
[*]
(b) Reversion. [*]if ARIAD and the HMRI-ARIAD JV fail, abandon or
suspend the development or commercialization of Product(s), [*], then
Incyte shall have the right, in its sole discretion upon written notice
to ARIAD, to terminate such exclusive license with respect to such
Designated Gene Product. In the event of such termination, ARIAD shall
grant Incyte a perpetual worldwide, exclusive license to all ARIAD
know-how and interest in such Designated Gene Product(s) and
corresponding ARIAD patent rights[*].
3.5 Limitations on Patent Licenses.
3.5.1 Reservation of Rights.
(a) Incyte reserves the right under the Incyte Technology to[*]. For
any Designated Gene Product which is the subject of an exclusive option
or exclusive license in the Therapeutic Field of Use or Antisense Field
of Use under Section 3.4, Incyte shall use commercially reasonable
efforts to [*] regarding such, exclusive option or exclusive license,
without specifying the identity of the licensee.
(b) Incyte reserves the right under the Incyte Technology (i) to
satisfy its obligations under this Agreement, (ii) to discover,
develop, make, have made, use and sell Gene Products and Products in
all fields of use outside the scope of an exclusive patent option or an
exclusive patent license granted to ARIAD under Section 3.4 above, and
(iii) to grant licenses to third parties to discover, develop, make and
use and sell Gene Products and Products in all fields of use outside
the scope of an exclusive patent option or an exclusive patent license
granted to ARIAD under Section 3.4 above.
(c) With respect to any such cDNA Clone corresponding to a Designated
Gene Product under exclusive license to ARIAD under[*], Incyte reserves
the right under the Incyte Technology at any time to[*].
3.5.2 Third Party Obligations. If any Gene Product is subject to the
grant of an unexpired exclusive option, or an exclusive license, to any
third party in the Therapeutic Field of Use or Antisense Field of Use
[*]at the time Incyte receives written notice from ARIAD of ARIAD's
desire to obtain an exclusive option or exclusive license with respect
to such Gene Product, Incyte promptly shall advise
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16
ARIAD of such prior option or license (without specifying the identity
of such other party), and ARIAD shall have no right to obtain an
exclusive option or license with respect to such Gene Product in the
Therapeutic Field of Use or Antisense Field of Use, as applicable,
during the term of the option or license to such other party. For each
Gene Product in the LifeSeq(R) Database Product(s) which is the subject
of an exclusive option or exclusive license granted to any party,
Incyte shall use commercially reasonable efforts to annotate such Gene
Product accordingly.
3.5.3 Incyte's Rights to Unlicensed Full Length Inserts, Full Length
Contigs or Full Length Clones. Notwithstanding anything to the
contrary, with respect to a Full Length Insert, Full Length Contig or
Full Length Clone for which Incyte has obtained [*]subscribers have the
right to acquire exclusive licenses to such Full Length Insert(s), Full
Length Contigs or Full Length Clones under provisions as under Section
3.4 herein; provided however, [*], Incyte may elect to retain exclusive
rights under Incyte Patent Rights to any such Full Length Insert, Full
Length Contig or Full Length Clone which is not subject to an option or
license, for commercial development at its discretion.
3.6 Sublicensing. The Parties agree that brokerage of Incyte Technology is
not intended by ARIAD nor in Incyte's best interests. Therefore:
a. On an individual Gene Product-by-Gene Product basis, ARIAD
may sublicense to any third party the rights to Designated
Gene Product(s) and the Incyte Technology relating thereto in
order to make, have made, use, and sell Drug Products,
Diagnostic Products, Antisense Products, and Therapeutic
Protein Product(s) granted under this Article 3.0; provided,
however, that without the prior written consent of Incyte, no
sublicense of Incyte Technology will be granted to any third
party other than[*]; and further provided that each sublicense
has a grant which is consistent with the terms herein and
ARIAD shall be responsible for payments and royalties under
such sublicenses due to Incyte under Article 4.0 as if such
were made by ARIAD directly and pursuant to the terms and
conditions of this Agreement.
b. No grant of right to sublicense rights to Designated Gene
Product(s) and the Incyte Technology relating thereto in order
to discover, research and develop Drug Products, Diagnostic
Products, Antisense Products and Therapeutic Protein Products
is provided by Incyte to ARIAD herein.
c. ARIAD shall obtain the written commitment of any
sublicensee to abide by all applicable terms and conditions of
this Agreement. Promptly upon execution of any permitted
sublicense, ARIAD shall provide notice
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thereof to Incyte and reasonable satisfactory evidence that such
sublicense is in compliance with this Section 3.6.
3.7 No Implied Licenses. No implied right or license is granted to ARIAD to
utilize the Incyte Technology in a manner not expressly included within
the scope of the licenses granted pursuant to this Agreement. Other
than as expressly granted herein, no licenses either by estoppel,
implication or otherwise are granted herein.
3.8 Supply of cDNA Clones. During the Access Term, Incyte hereby agrees to
provide to ARIAD, at ARIAD's option and pursuant to its written request
from time to time, one or more isolated cDNAs, corresponding to a given
Consensus DNA Sequence in the Database Information and the subject of
license(s) granted hereunder this Article 3, at the following rates:
[*]
ARIAD agrees to submit payments within thirty (30) days from receipt of
invoice from Incyte in reasonably detailed form regarding such clone
supply.
ARIAD agrees that such cDNA Clone(s) are provided to ARIAD on a
non-exclusive basis and the subject of license(s) granted under Article
3. No rights under Incyte Patent Rights are granted under this Section
3.8.
4.0 SCHEDULE OF PAYMENTS; ROYALTIES.
4.1 Access Fee(s).
4.1.1 The Access Fees for the LifeSeq(R) Database subscription will be
payable by ARIAD on the following schedule:
[*]
4.2 Non-Exclusive License(s) under Incyte Know-how; Milestone Payments and
Royalties. Contingent on the following events, and subject to Sections
4.6 and 4.7, the following payments and royalties shall be paid by
ARIAD to Incyte for Drug Product(s), Antisense Product(s) and
Therapeutic Protein Product(s) in the respective fields of use, with
respect to Designated Gene Product(s) under Non-Exclusive License as
granted under Sections 3.1 and 3.2:
(a) IND Filing: [*]the filing of the first Investigational New
Drug application ("IND") with the United States Food and Drug
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18
Administration ("FDA") or foreign equivalent with respect to
each given Product.
(b) Phase III Clinical Trials: [*]the first initiation of
Phase III Clinical Trials with respect to each given Product.
(c) Regulatory Approval: [*]the first Regulatory Approval of
the marketing of each given Product.
[*]
(e) Royalties on Net Sales: A royalty will be paid equal to[*]
4.3 Non-Exclusive License under Incyte Know-how and Incyte Patent Rights in
the Diagnostic Field of Use; Milestone Payments and Royalties.
Contingent on the following events, and subject to Sections 4.6 and
4.7, the following payments and royalties shall be paid by ARIAD to
Incyte for Diagnostic Product(s) in the Diagnostic Field of Use with
respect to Designated Gene Product(s) under Non-Exclusive License
granted under Sections 3.1 and 3.2, and Section 3.3 as applicable:
(a) Regulatory Approval: [*]the first Regulatory Approval of
the marketing of each Diagnostic Product.
[*]
(c) Royalties on Net Sales: A royalty will be paid equal[*]
4.4 Exclusive Therapeutic License under Incyte Patent Rights; Milestone
Payments and Royalties. Contingent on the following events, and subject
to Sections 4.6 and 4.7, the following payments and royalties shall be
paid by ARIAD to Incyte for Therapeutic Protein Product(s) in the
Therapeutic Field of Use with respect to Designated Gene Product(s)
under exclusive license under Incyte Patent Rights granted by Incyte
under Section 3.4.1(d):
(a) IND Filing: [*]the first Investigational New Drug
application ("IND") with the United States Food and Drug
Administration ("FDA") or foreign equivalent with respect to
each Therapeutic Protein Product .
(b) Phase III Clinical Trials: [*]the first initiation of
Phase III Clinical Trials with respect to each Therapeutic
Protein Product.
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19
(c) Regulatory Approval: [*]the first Regulatory Approval of
the marketing of each Therapeutic Protein Product.
[*]
(e) Royalties on Net Sales: A royalty will be paid equal to:
[*]
4.5 Exclusive Antisense License under Incyte Patent Rights; Milestone
Payments and Royalties. Contingent on the following events, and subject
to Sections 4.6 and 4.7, the following payments and royalties shall be
paid by ARIAD to Incyte for Antisense Product(s) in the Antisense Field
of Use with respect to Designated Gene Product(s) under exclusive
license under Incyte Patent Rights granted by Incyte under Section
3.4.2(d):
(a) IND Filing: [*]after the filing of the first Investigative
New Drug application ("IND") the United States Food and Drug
Administration ("FDA") or foreign equivalent with respect to
each Antisense Product.
(b) Phase III Clinical Trials: [*]the first initiation of
Phase III Clinical Trials with respect to each Antisense
Product.
(c) Regulatory Approval: [*]the first Regulatory Approval of
the marketing of each Antisense Product.
[*]
(e) Royalties on Net Sales: A royalty will be paid equal to:
[*]
4.6 4.6.1 Payment Obligation. The foregoing payments under Sections 4.2
through 4.5 will accrue or become due or payable with respect to Gene
Product(s), Drug Product(s), Antisense Product(s), Therapeutic Protein
Product(s), and/or Diagnostic Product(s) which are:
[*]
4.7 Duration of Payment Obligation. Royalty obligations with respect to
each Product under any portion of this Article 4.0 shall[*]
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4.8 Mode of Payment. For purposes of determining when a sale of a
royalty-bearing Product occurs, the sale shall be deemed to occur on
the date of the invoice to the purchaser of the Product. All royalty
payments shall be made within ninety (90) days of the end of each
calendar quarter in which the sale was made. Any royalty payment that
is not paid on or before the date such payment is due under this
Agreement shall bear interest, to the extent permitted by applicable
law, at two percentage points over the prime rate of interest as
reported by Bank of America NT&SA in San Francisco, California, from
time to time, calculated on the number of days such payment is
delinquent. Payments shall be calculated in the currency in which sales
took place and then converted to United States Dollars at the rate of
exchange of the currency of the country in which the Net Sales were
made as reported by the Wall Street Journal as of the close of the last
business day of the calendar quarter for which such payment is due.
4.9 Records Retention. ARIAD agrees to keep for at least three (3) years
records of all sales of Products in sufficient detail to permit Incyte
to confirm the accuracy of ARIAD's royalty calculations. Not more than
once a year, at the request and the expense of Incyte during normal
business hours, upon at least five (5) days' prior written notice,
ARIAD shall permit a nationally recognized, independent, certified
public accountant appointed by Incyte and acceptable to ARIAD, to
examine these records solely to the extent necessary to verify such
calculations, provided that such accountant has entered into a
confidentiality agreement with ARIAD substantially similar to the
confidentiality provisions of this agreement, limiting the use and
disclosure of such information to purposes germane hereto. Results of
any such examination shall be made available to both Parties. If such
examination reveals an underpayment of royalties by five percent (5%)
or more, ARIAD shall pay all costs of such examination. In the event
such accountant concludes that additional royalties were owed, the
additional royalties shall be paid within thirty (30) days of the date
Incyte delivers to ARIAD such accountant's written report so
concluding. This section shall survive the cessation of payment
obligations under Section 4.6 for a period of six (6) years.
4.10 Miscellaneous Payments. Unless otherwise provided in this Agreement,
neither Party shall provide services or information to the other on a
chargeable basis without the prior written agreement of such other
Party, both as to such services or information and as to the charges
and payment schedules therefor.
4.11 Shipping. ARIAD shall pay, for its own account, any shipping, freight,
mailing expenses and the like arising out of this Agreement and the
transactions contemplated herein.
4.12 Payments and Taxes. Unless otherwise provided in this Agreement, ARIAD
agrees to submit payments[*]
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5.0 CONFIDENTIALITY AND PUBLICATION.
5.1 Confidentiality. The Parties acknowledge that during the course of this
Agreement they will each receive from the other information which is
proprietary, confidential and of commercial value to the disclosing
Party. For purposes of this Agreement, "Confidential Information" shall
mean technical and business information belonging to the disclosing
Party, including, where appropriate and without limitation, any
information, business, financial and scientific data, Database
Information, Gene Product(s), patent disclosures, patent applications,
structures, models, techniques, processes and, compositions, compounds,
biological samples, apparatus, and the like, and bioinformatics
methods, hardware configurations and software in various stages of
development or any software product (source code, object code or
otherwise), including its audiovisual components (menus, screens,
structure and organization) and any human or machine readable form of
the program, and any writing or medium in which the program or
information therein is stored, written or described, including, without
limitation, diagrams, flow charts, designs, drawings, specifications,
models, data, bug reports, and the like. Except to the extent expressly
authorized by this Agreement, [*]the Parties agree that, for the Access
Term and for ten (10) years thereafter, the receiving Party shall keep
confidential and shall not publish or otherwise disclose and shall not
use for any purpose (except those expressly permitted under this
Agreement) any Confidential Information furnished to it by the other
Party pursuant to this Agreement, and regardless of the medium on which
it is provided, including know-how, except to the extent that it can be
established by the receiving Party by competent proof that such
information:
(a) was already known to the receiving Party, other than under
an obligation of confidentiality, at the time of disclosure by
the other Party;
(b) was generally known to the public or otherwise part of the
public domain at the time of its disclosure to the receiving
Party;
(c) became generally available to the public or otherwise part
of the public domain after its disclosure other than through
any act or omission of the receiving Party in breach of this
Agreement;
(d) was subsequently lawfully disclosed to the receiving Party
by a third party, provided it was not obtained by such third
party directly or indirectly from the other Party;
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(e) was independently discovered or developed by the receiving
Party without the use of the other Party's Confidential
Information, as can be documented by written records created
at the time of such independent discovery or development.
Each Party may disclose the other's information to the extent such
disclosure is reasonably necessary in (i) prosecuting patent
applications and maintaining patents, or (ii) prosecuting or defending
litigation or (iii) complying with applicable governmental regulations
provided, however, that if a Party is required to make any disclosure
of the other Party's secret or confidential information it will give
reasonable advance notice to the other Party of such disclosure
requirement and will use its reasonable efforts to secure confidential
treatment of such information required to be disclosed.
5.2 Disclosure; Third Party Access. ARIAD agrees that the LifeSeq(R)
Database provided hereunder will be for internal use by ARIAD and its
Affiliates, including the HMRI-ARIAD JV, only and subject to all the
terms and provisions of Article 5.0 of this Agreement. Except as
provided for in Sections 2.3.4 and 3.6 above, Confidential Information
of Incyte will not be published or disclosed in any form without the
written authorization of Incyte.
(a) ARIAD and its sublicensees may publish scientific results
of their work within the scope of the licenses granted under
this Agreement, provided, however, that:
(i) any such publication by ARIAD or its sublicensees
that would disclose Confidential Information of
Incyte shall require the prior consent of Incyte,
provided that such disclosure is on an individual
Gene Product-by-Gene Product-basis and ARIAD has
taken necessary steps to provide for diligent review
by Incyte for removal of, or approval to disclose,
Incyte Confidential Information; and
(ii) [*]
(iii) any such publications will include recognition
of the contributions of Incyte according to standard
practice for assigning scientific credit, either
through authorship or acknowledgment as may be
appropriate.
(b) Incyte recognizes that ARIAD, in the normal course of
business, utilizes consultants and third party collaborators
who are bound by a contractual obligation to ARIAD, including
an obligation of confidentiality to ARIAD. ARIAD may disclose
Confidential Information
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of Incyte, solely on an individual Gene Product-by-Gene
Product-basis, to such consultants and third party
collaborators in the context of the disclosure of ARIAD's own
scientific results or the conduct of its work within the scope
of the licenses granted herein, provided, however, subject to
the Letter Agreement, that:
(i) any such disclosure by ARIAD that would disclose
Confidential Information of Incyte shall require the
prior written consent of Incyte, which consent will
not be unreasonably withheld or delayed, and further
provided that ARIAD has obtained a written agreement
regarding obligations of confidentiality and
appropriate use restrictions comparable to and
consistent with those set forth herein and provided
that such third party shall not further disclose
Confidential Information, and provided that such
written agreement is subject to review and written
approval of Incyte prior to any disclosure of
Confidential Information of Incyte; and
(ii) any such disclosure of Confidential Information
which includes the transfer of DNA Sequence
Information or biological materials shall be subject
to a written materials transfer agreement which
protects the intellectual property rights of Incyte
and ARIAD as set forth herein, such agreement to
include customary provisions regarding scope of work,
publication, protection of proprietary subject matter
and ownership of inventions, and provided that such
written agreement is subject to review and written
approval of Incyte prior to any transfer of DNA
Sequence Information or biological materials of
Incyte; and
(iii) [*]
(iv) ARIAD has obtained a written obligation from
such third party regarding Incyte's right to review
publications as under the provisions of Section
5.2(a) herein.
[*]
5.3 Notwithstanding anything to the contrary set forth herein, this Article
5.0 shall not be construed to allow ARIAD, Affiliates, sublicensees,
collaborators or consultants to publish or disclose the LifeSeq(R)
Database, including any Consensus cDNA Sequence(s) or substantial
portions of Annotation Information, or any Incyte software or hardware
configurations, at any time without the express written consent of
Incyte.
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6.0 INTELLECTUAL PROPERTY.
6.1 Incyte Rights. With the exception of intellectual property rights
granted to ARIAD under the non-exclusive or exclusive license(s)
granted under this Agreement, Incyte retains all rights to the Incyte
Technology and to all cDNA sequences, partial cDNAs, and their
corresponding full length cDNAs, Consensus DNA Sequence, gene products,
proteins encoded thereby and Incyte applications thereof and Incyte
information relating thereto, including, but not limited to Database
Information and the LifeSeq(R) Database.
ARIAD Rights. Except as otherwise provided herein, ARIAD, or its
Affiliates, licensees, or sublicensees, as applicable, shall
respectively retain all intellectual property rights and title in and
to any Gene Product(s), Product(s), and inventions relating thereto,
discovered or developed by or for ARIAD, or its Affiliates, licensees,
or sublicensees, as applicable; provided, however, that with respect to
Full Length Inserts or Full Length Contigs provided to ARIAD under the
provisions of Section 3.8, Incyte retains the sole right to file the
first patent application(s) with claims directed to composition of
matter covering such Full Length Inserts or Full Length Contigs, and
that Incyte shall be the sole owner of such patent application(s).
6.2 Patent Prosecution. Except as provided herein, the filing, prosecution,
maintenance and enforcement of patent(s), copyrights, and other
proprietary rights regarding the Incyte Technology shall be the
responsibility and expense of, and at the discretion of Incyte.
6.3 Cooperation. The Parties undertake that they shall do all things which
are reasonably necessary or desirable to establish, maintain and assert
any rights or interest of the Parties in respective patent rights,
including the execution of all documents necessary or desirable so that
title or other rights can be established and maintained and so that any
patent filings permitted hereunder can be made, prosecuted and
maintained. Such actions shall include cooperative efforts as
reasonable to obtain the broadest possible protection for Gene
Product(s) in all jurisdictions, to the mutual benefit of both parties,
taking into account the nature of the invention(s) and the state of the
law in the respective jurisdictions. Such actions may include
discretionary provision by ARIAD to Incyte of full length genes
corresponding to a Designated Gene Product from partial cDNA Clone(s)
provided by Incyte under Section 3.8.
With respect to a Gene Product under Non-Exclusive Patent License in
the Diagnostics Field of Use, and for the duration of such license,
patent costs,[*]
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Upon entering into an exclusive license to a Designated Gene Product
and for the duration of such license, patent costs[*].
6.4 ARIAD Patent Rights.[*]
6.5 Third Party Patents. Subject to the warranties made hereunder as to
each Party's knowledge of any third party rights that may be infringed
by the uses of the Database Information as contemplated herein, the
Parties acknowledge that, in order to discover, develop, and/or
commercialize one or more Gene Products, they may require licenses
under third party patent rights or such other rights, including for
example a Sybase or Oracle license), and it is hereby agreed that it
shall be each Party's responsibility to satisfy itself as to the need
for such licenses and, if necessary, to obtain such licenses.
7.0 TERM; TERMINATION.
7.1 Term: Termination at Full Term. This Agreement shall commence as of the
Effective Date and shall terminate as provided herein.
7.2 Access Term. The Access Term shall extend [*]unless terminated earlier
as provided under Sections 7.3, 7.4 or 7.5, or extended under Section
4.1.2.
7.3 Breach. Failure by either Party to comply with any of the material
obligations contained in this Agreement shall entitle the other Party
to give to the Party in default written notice specifying the nature of
the default and requiring it to make good such default. If such default
is not cured within ninety (90) days after the receipt of such notice,
the notifying Party shall be entitled, without prejudice to any of its
other rights conferred on it by this Agreement, in addition to any
other remedies available to it by law or in equity, immediately to
terminate this Agreement by giving written notice to the other Party.
The right of a Party to terminate this Agreement, as hereinafter
provided, shall not be affected in any way by its waiver or failure to
take action with respect to any previous default.
7.4 Insolvency or Bankruptcy. Either Party may, in addition to any other
remedies available to it by law or in equity, terminate this Agreement,
in whole or in part as the terminating Party may determine, by written
notice to the other Party in the event the other Party shall have
become insolvent or bankrupt, or shall have made an assignment for the
benefit of its creditors, or there shall have been appointed a trustee
or receiver of the other Party or for all or a substantial part of its
property, or any case or proceeding shall have been commenced or other
action taken by or against the other Party in bankruptcy or seeking
reorganization, liquidation, dissolution, winding-up, arrangement,
composition or readjustment of its debts or any other relief under any
bankruptcy, insolvency,
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reorganization or other similar act or law of any jurisdiction now or
hereafter in effect.
[*]
7.6 Accrued Rights Surviving Obligations. Termination, relinquishment or
expiration of this Agreement for any reason shall be without prejudice
to any rights which shall have accrued to the benefit of either Party
prior to such termination, or expiration. Upon any termination,
relinquishment or expiration of this Agreement, the following
provisions will not terminate, but will continue in full force and
effect: Sections 2 (database access) to the extent relating to
Designated Gene Products, 5 (confidentiality), 6 (intellectual
property), 8 (representations/warranties), 9 (indemnity), 10
(miscellaneous) and [*]and any licenses granted or options entered, and
any payment obligations thereunder pursuant to ARIAD's rights under
Sections 3 and 4, as of the termination, relinquishment or expiration
of this Agreement.
8.0 REPRESENTATIONS AND WARRANTIES; COVENANTS.
8.1 Representations and Warranties. Each Party represents and warrants to
the other Party that:
(a) it has the corporate power and authority and the legal
right to enter into this Agreement and to perform its
obligations hereunder;
(b) the execution and delivery of this Agreement and the
performance of the transactions contemplated hereby have been
duly authorized by all necessary corporate action of such
Party;
(c) the execution and delivery of this Agreement and the
performance by such Party of any of its obligations under this
Agreement do not and will not (i) conflict with, or constitute
a breach or violation of, any other contractual obligation to
which it is a party, any judgment of any court or governmental
body applicable to such Party or its properties or, to such
Party's knowledge, any statute, decree, order, rule or
regulation of any court or governmental agency or body
applicable to such Party or its properties, and (ii) with
respect to the execution and delivery of this Agreement,
require any consent or approval of any governmental authority
or other person;
(d) with respect to Incyte, there are no material adverse
proceedings, claims or actions pending, or to the best of
Incyte's knowledge,
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27
threatened, relating to the Incyte Technology as of the
Effective Date of this Agreement which would materially
interfere with Incyte's performance of its obligations under
this Agreement. Further, Incyte shall to the best of its
knowledge without undertaking a special investigation,
disclose to ARIAD any material adverse proceedings, claims or
action that arise, relating to Incyte Technology during the
Access Term, which would materially interfere with Incyte's
performance of its obligations under this Agreement.
8.2 Compliance with Law. ARIAD and Incyte each represent and warrant that
it shall comply with all applicable laws, regulations and guidelines in
connection with that Party's performance of its obligations and rights
pursuant to this Agreement. Without limiting the generality of the
foregoing, each Party shall be responsible for compliance with all
applicable product safety, product testing, product labeling, package
marking, and product advertising laws and regulations with respect to
its own activities and products. Further, ARIAD and Incyte shall each
comply with the regulations of the United States and any other relevant
nation concerning any export or other transfer of technology, services,
or products.
8.3 Disclaimers.
(a) NOTHING IN THIS AGREEMENT SHALL BE CONSTRUED AS A REPRESENTATION
MADE OR WARRANTY GIVEN BY INCYTE THAT ANY PATENT WILL ISSUE BASED UPON
ANY PENDING PATENT APPLICATION WITHIN THE INCYTE PATENT RIGHTS, THAT
ANY PATENT WITHIN THE INCYTE PATENT RIGHTS THAT HAS ISSUED OR ISSUES
WILL BE VALID, OR THAT THE USE OF ANY LICENSE GRANTED HEREUNDER OR THAT
THE USE OF ANY INCYTE PATENT RIGHTS WILL NOT INFRINGE THE PATENT OR
PROPRIETARY RIGHTS OF ANY OTHER PERSON. INCYTE MAKES NO REPRESENTATIONS
OR WARRANTIES WITH RESPECT TO ARIAD's USE OF THE INFORMATION TO BE
PROVIDED TO IT HEREUNDER. EXCEPT AS EXPLICITLY STATED HEREIN, ALL
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF
MERCHANTABILITY, NOVELTY OR FITNESS OF GENE PRODUCTS OR DATABASE
INFORMATION FOR ANY PARTICULAR PURPOSE, ARE EXCLUDED. INCYTE MAKES NO
WARRANTY THAT THE DATABASE INFORMATION DOES NOT CONTAIN ERRORS.
(b) EXCEPT AS EXPLICITLY STATED HEREIN NEITHER PARTY WILL BE LIABLE FOR
CONSEQUENTIAL OR INCIDENTAL DAMAGES OF ANY NATURE ARISING FROM SUCH
PARTY'S ACTIVITIES UNDER THIS AGREEMENT; PROVIDED, HOWEVER, THAT THIS
LIMITATION SHALL
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NOT LIMIT THE INDEMNIFICATION OBLIGATION OF SUCH PARTY UNDER SECTION
9.2 BELOW FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES RECOVERED BY A THIRD
PARTY.
(c) Notwithstanding the provisions of this Agreement:
(i) Incyte retains the right to undertake research and
development programs or establish collaborations with third
parties in any research area, [*], provided, however that
Incyte remains subject to its license and confidentiality
obligations to ARIAD as set forth in Sections 3 and 5;
(ii) ARIAD recognizes that the LifeSeq(R) Database and Gene
Products provided pursuant to this Agreement may be, or may
become, subject to prior license grants to third parties.
9.0 INDEMNITY.
9.1 Direct Indemnity. Each Party shall indemnify and hold the other Party
harmless, and hereby forever releases and discharges the other Party,
from and against all losses, liabilities, damages and expenses
(including attorney's fees and costs) arising out of a breach of the
indemnifying Party's warranties or out of the negligence, recklessness
or intentional misconduct of the indemnifying Party or its affiliates
in connection with activities under this Agreement except to the extent
such losses, liabilities, damages and expenses (including attorney's
fees and costs) resulted from the recklessness or intentional
misconduct of the other Party.
ARIAD acknowledges and agrees that with respect to the nature of
Incyte's Technology, there can be no adequate remedy at law for any
breach of ARIAD's obligations under the security provisions of this
Agreement, that any such breach may result in irreparable harm to
Incyte, and therefore, that upon any such breach, Incyte shall be
entitled to seek appropriate equitable relief in addition to whatever
remedies it might have at law, including injunctive relief, specific
performance or such other relief as Incyte may request to enjoin or
otherwise restrain any act prohibited hereby, as well as the recovery
of all costs and expenses, including attorney's fees incurred. Incyte
shall be entitled to indemnification by ARIAD from any losses,
liabilities, damages and expenses (including attorney's fees and
costs), in connection with such unauthorized use or release of
Confidential Information of Incyte.
9.2 Other Indemnity. Except as otherwise provided below, each Party agrees
to indemnify and hold the other Party and its affiliates harmless from
and against any losses, liabilities, damages and expenses (including
attorney's fees and costs)
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suffered or incurred, and claims made, in connection with third party
claims, demands, actions or other proceedings for personal injuries or
any Product(s) recall to the extent caused by: (a) any and all uses or
other disposition of Gene Product(s) or Product(s) by the indemnifying
Party or its affiliates, licensees, or sublicensees (other than the
other Party), (b) any failure to test for or provide adequate warnings
of adverse side effects to the extent such failure arises out of acts
or omissions in connection with a Party's or its affiliates',
licensees', or sublicensees' (other than the other Party), preclinical
or clinical testing or marketing of Gene Product(s) or Product(s)
contemplated hereunder, (c) any manufacturing defect in any product or
other material manufactured by a Party or its affiliates, licensees, or
sublicensees (other than the other Party), or (d) any other act or
omission of a Party or its affiliates, licensees, or sublicensees
(other than the other Party), in connection with the activities
contemplated under this Agreement, except to the extent such losses,
liabilities, damages and expenses (including attorney's fees and costs)
resulted from, recklessness or intentional misconduct of the other
Party.
9.3 Procedure. A Party (the "Indemnitee") that intends to claim
indemnification under this Section 9 shall promptly notify the other
Party (the "Indemnitor") of any loss, liability, damage, expense,
claim, demand, action or other proceeding in respect of which the
Indemnitee or any of its affiliates intend to claim such
indemnification, and the Indemnitor shall have the right to participate
in, and, to the extent the Indemnitor so desires, jointly with any
other Indemnitor similarly noticed, to assume the defense thereof with
counsel selected by the Indemnitor and reasonably satisfactory to the
Indemnitee; provided, however, that an Indemnitee shall have the right
to retain its own counsel, with the fees and expenses to be paid by the
Indemnitee, if representation of such Indemnitee by the counsel
retained by the Indemnitor would be inappropriate due to actual or
potential differing interests between such Indemnitee and any other
party represented by such counsel in such proceedings. The indemnity
agreement in this Section 9 shall not apply to amounts paid in
settlement of any loss, liability, damage, expense, claim, demand,
action or other proceeding if such settlement is effected without the
consent of the Indemnitor, which consent shall not be withheld
unreasonably. The failure to deliver notice to the Indemnitor within a
reasonable time after the commencement of any such action, if
prejudicial to its ability to defend such action, shall relieve such
Indemnitor of any liability to the Indemnitee under this Section 9, but
the omission so to deliver notice to the Indemnitor will not relieve it
of any liability that it may have to any Indemnitee otherwise than
under this Section 9. The Indemnitor may not settle the action or
otherwise consent to an adverse judgment in action or other proceeding
that materially diminishes the rights or interests of the Indemnitee
without the express written consent of the Indemnitee. The Indemnitee
under this Section 9 and its employees and agents, shall cooperate
fully with the Indemnitor and its
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legal representatives in the investigation of any action, claim or
liability covered by this indemnification.
10.0 MISCELLANEOUS PROVISIONS.
10.1 No Partnership. Nothing in this Agreement is intended or shall be
deemed to constitute a partnership, agency, distributorship,
employer-employee or joint venture relationship between the Parties. No
Party shall incur any debts or make any commitments for the other,
except to the extent, if at all, specifically provided herein.
10.2 Assignments. Neither Party shall assign any of its rights or
obligations hereunder except: (i) as incident to the merger,
consolidation, reorganization or acquisition of stock or assets or
similar transaction affecting all or substantially all of the assets or
voting control of the assigning Party; (ii) to any directly or
indirectly wholly-owned subsidiary if the assigning Party remains
liable and responsible for the performance and observance of all of the
subsidiary's duties and obligations hereunder; (iii) with respect to
Incyte as the assignor, as incident to the acquisition or transfer of
the assets affecting all or substantially all of the assets of the
business of Incyte relating to a given field of use, provided that
Incyte or such third party continues to fulfill its obligations to
ARIAD hereunder; or (iv) with the consent of the other Party, which
consent shall not be withheld unreasonably. This Agreement shall be
binding, upon the successors and permitted assigns of the Parties and
the name of a Party appearing herein shall be deemed to include the
names of such Party's successor's and permitted assigns to the extent
necessary to carry out the intent of this Agreement. Any assignment not
in accordance with the above shall be void and any assignment by ARIAD
hereunder shall be subject to ARIAD's obligations under Section 4.12,
Payments and Taxes.
Notwithstanding the foregoing, in no event shall ARIAD's database
access rights be assignable to a successor or permitted assign.
10.3 Further Actions. Each Party agrees to execute, acknowledge and deliver
such further instruments, and to do all such other acts, as may be
necessary or appropriate in order to carry out the purposes and intent
of this Agreement.
10.4 No Trademark Rights. Except as otherwise provided herein, no right,
express or implied, is granted by this Agreement to use in any manner
the names "Incyte" or "ARIAD", or any other trade name or trademark of
Incyte or ARIAD or their Affiliates in connection with the performance
of this Agreement.
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10.5 Public Announcements. Except as may otherwise be required by law or
regulation, neither Party shall make any public announcement concerning
this Agreement or the subject matter hereof without first submitting a
copy of the proposed announcement to the other Party for review. The
other Party shall have seven (7) business days or such other time as
mutually agreed to consent to the publication of such announcement,
such consent not to be unreasonably withheld.
10.6 Entire Agreement of the Parties; Amendments. This Agreement, together
with the Letter Agreement constitutes and contains the entire
understanding and agreement of the Parties and cancels and supersedes
any and all prior negotiations, correspondence, representations,
understandings and agreements, whether verbal or written, between the
Parties respecting the subject matter hereof. No waiver, modification
or amendment of any provision of this Agreement shall be valid or
effective unless made in writing and signed by a duly authorized
officer of each of the Parties.
10.7 Severability. In the event any one or more of the provisions of this
Agreement should for any reason be held by any court or authority
having jurisdiction over this Agreement or either of the Parties to be
invalid, illegal or unenforceable, such provision or provisions shall
be validly reformed to as nearly as possible approximate the intent of
the Parties and, if unreformable, shall be divisible and deleted in
such jurisdiction; elsewhere, this Agreement shall not be affected so
long as the Parties are still able to realize the principal benefits
bargained for in this Agreement.
10.8 Captions. The captions to this Agreement are for convenience only, and
are to be of no force or effect in construing or interpreting any of
the provisions of this Agreement.
10.9 Applicable Law. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of Delaware, without reference to
the conflicts of law principles thereof.
10.10 Notices and Deliveries. Any notice, requests, delivery, approval or
consent required or permitted to be given under this Agreement shall be
in writing and shall be deemed to have been sufficiently given if
delivered in person, transmitted by commercial overnight courier, or
transmitted by telex telegram or telecopy to the Party to whom it is
directed at its address shown below or such other address as such Party
shall have last given by notice to the other Party. All notices shall
be effective upon receipt.
If to Incyte, addressed to:
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Incyte Pharmaceuticals, Inc.
0000 Xxxxxx Xxxxx
Xxxx Xxxx, XX 00000
Attn: Xxx Xxxxxxxxx, Chief Executive Officer
If to ARIAD, addressed to:
ARIAD Pharmaceuticals, Inc.
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxxxx, Chairman and
Chief Executive Officer
10.11 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
10.12 Attorney's Fees. In any litigation relating to or arising out of this
Agreement, the prevailing Party shall be entitled to its reasonable
attorneys' fees, including expert witness costs, and all costs of
proceedings incurred in such litigation, in addition to any other
relief it may be awarded.
10.13 Force Majeure. Force Majeure shall mean an Act of God, flood, fire,
explosion, earthquake, strike, lockout, casualty or accident, war,
civil commotion, act of public enemies, blockage or embargo, or any
injunction, law, order, proclamation, regulation, ordinance, demand or
requirement of any government or any subdivision, authority
representative thereof, or the inability to procure or use materials,
labor, equipment, transportation or energy sufficient to meet
manufacturing needs without the necessity of allocation, or any other
cause whatsoever, whether similar or dissimilar to those enumerated
above, which are beyond the reasonable control of such Party, which the
Party affected has used its reasonable best efforts to avoid, and which
prevent, restrict or interfere with the performance by a Party of its
obligations hereunder. The Party affected by Force Majeure shall give
notice to the other Party promptly in writing and whereupon shall be
excused from those obligations hereunder, to the extent of such
prevention, restriction or interference, provided that the affected
party shall use its commercially reasonable efforts to avoid or remove
such cause(s) of non-performance and shall continue performance
whenever such cause(s) is removed.
10.14 Affiliate Performance. To the extent that any Affiliate of ARIAD has
access to any LifeSeq(R) Database, has the right to receive any other
rights or benefits under this Agreement or otherwise is obligated to
perform any obligations under this Agreement, ARIAD shall cause such
Affiliate to perform in full, when due, all applicable obligations
under this Agreement to the same extent as if such
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Affiliate were a party to this Agreement; provided, however, that
nothing in this Section 10.14 shall expand the rights or benefits of
ARIAD or its Affiliates, or the obligations of Incyte, beyond those
otherwise expressly set forth in this Agreement. ARIAD shall guaranty
timely performance in full by such Affiliate of all such obligations. A
breach by such Affiliate of any such obligation shall constitute a
breach by ARIAD of this Agreement and shall entitle Incyte to exercise
its rights under Article 7.0 (Term and Termination) above, in addition
to any other rights and remedies to which Incyte may be entitled.
10.15 Effective Date: This Agreement shall become effective upon consummation
of the Closing under the agreements under which the HMRI-ARIAD JV is
formed (the "Effective Date"). If HMRI and ARIAD determine not to form
the HMRI-ARIAD JV, or the consummation of the JV Closing does not and
will not occur for any reason, ARIAD shall promptly notify Incyte in
writing, whereupon this Agreement shall become null and void and of no
effect.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by
their respective duly authorized officers as of the Effective Date.
INCYTE PHARMACEUTICALS, INC.
By: /s/ Xxxxx Xxxxx
-------------------------------------
Name: Xxxxx Xxxxx
-------------------------------------
Title: President & CSO
-------------------------------------
ARIAD PHARMACEUTICALS, INC.
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
-------------------------------------
Title: Chairman and Chief Executive Officer
-------------------------------------
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EXHIBIT A
[*]
The parties agree to the following access monitoring mechanisms intended to
document the use of Database Information by ARIAD and the reporting of this
to[*]
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EXHIBIT B
INCYTE PHARMACEUTICALS INC. ISSUED PATENTS
BPI
U.S. Patent No. 5,171,739 December 15, 1992
Treatment of Endotoxin-Associated Shock and Prevention Thereof Using a BPI
Protein
U.S. Patent No. 5,089,274 February 18, 1992
Use of Bactericidal/Permeability Increasing Protein or Biologically Active
Analogs Thereof to Treat Endotoxin-Related Disorders
U.S. Patent No. 5,234,912 August 10, 1993
Pharmaceutical Compositions Comprising Recombinant BPI Proteins and a Lipid
Carrier and Uses Thereof
U.S. Patent No. 5,308,834 May 3, 1994
Treatment of Endotoxin-Associated Shock and Prevention Thereof Using a BPI
Protein
U.S. Patent No. 5,334,584 August 2, 1994
Non-Glycosylated BPI
Australian Patent No. 647,734 March 31, 1994
Method of Purifying BPI
U.S. Patent No. 5,532,216 July 2, 1996
Neutralization of non-LPS Compounds with BPI
PROTEASE NEXIN-1
U.S. Patent No. 5,006,252 April 9, 1991
Purified Protease Nexin
U.S. Patent No. 5,087,368 February 11, 1992
Purified Recombinant Protease Nexin
U.S. Patent No. 5,112,608 May 12, 1992
Use of Protease Nexin-1 to Mediate Wound Healing
U.S. Patent No. 5,278,049 January 11, 1994
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Recombinant Molecule Encoding Human Protease Nexin
U.S. Patent No. 5,187,089 February 16, 1993
Protease Nexin-1 Variants which Inhibit Elastase
U.S. Patent No. 5,196,196 March 23, 1993
Use of Protease Nexin-1 in Wound Dressings
U.S. Patent No. 5,206,017 April 27, 1993
Use of Protease Nexin-1 as an Anti-inflammatory
U.S. Patent No. 5,326,562 July 5, 1994
Pharmaceutical Dosage Unit for Treating Inflammation Comprising Protease Nexin-1
Australian Patent No. 625,492 November 10, 1992
Recombinant Purified Protease Nexin
Australian Patent No. 647,210 March 17, 1994
Protease Nexin-1 for Wound Healing
Australian Patent No. 650,275 June 16, 1994
Protease Nexin-1 Variants
U.S. Patent No. 5,457,090 October 10, 1995
Protease Nexin-1 Variants
U.S. Patent No. 5,495,001 February, 27, 1996
Recombinant Protease Nexin
L-14-1
French Patent No. 87/10288 July 27, 1987
Beta-galactoside Binding Lectins
Australian Patent No. 616,195 February 18, 1992
Beta-galactoside Binding Lectins
Australian Patent No. 632,474 May 11, 1993
14kD Mammalian Lectins
European Patent Xx. 00/00000 Xxxx 0, 0000
Xxxx-xxxxxxxxxxx Binding Lectins
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GRANULOCYTE PROTEINS
U.S. Patent No. 5,032,574 July 16, 1991
Novel Antimicrobial Peptide
U.S. Patent No. 5,087,569 February 11, 1992
Antimicrobial Proteins, Compositions Containing Same and Uses Thereof
U.S. Patent No. 5,126,257 June 30, 1992
Antimicrobial Proteins, Compositions Containing Same and Uses Thereof
U.S. Patent No. 5,210,027 May 11, 1993
DNA Encoding Novel Antimicrobial Polypeptide and Methods for Obtaining such
Polypeptide
Australian Patent No. 633,832 June 4, 1993
Novel Antimicrobial Polypeptide, Compositions Containing Same and Uses Thereof
U.S. Patent No. 5,338,724 August 16, 1994
Novel Antimicrobial Proteins, Compositions Containing Same and Uses Thereof
U.S. Patent No. 5,470,825 November 28, 1995
Basophil Granule Proteins
U.S. Patent No. 5,476,839 December 9, 1995
Basophil Granule Proteins
INCYTE PHARMACEUTICAL INC. PUBLISHED FOREIGN APPLICATIONS
BPI AND RELATED MOLECULES
PCT/US90/00837 August 23, 1990
Use of Bactericidal/Permeability Increasing Protein or Biologically Active
Analogs Thereof to Treat Lipopolysaccharide Associated Gram Negative Infections
XXX/XX00/00000 Xxxxx 0, 0000
Xxxxxxxxxxx XXX Proteins, Uses of BPI Proteins and Methods of Preparing Same
PCT/US92/08234 April 1, 1993
Compositions Comprising a Bactericidal/Permeability Increasing Protein and a
Lipid Carrier, Methods of Making Same, and Uses Thereof
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PCT/US92/08298 April 1, 1993
A New Form of Lipopolysaccharide Binding Protein (LBP)
EPO 91/918397 June 9, 1993
Recombinant BPI Proteins, Uses of BPI Proteins, and Methods of Preparing Same
EPO 0605653 July 13, 1994
A New Form of LBP-Beta
Japan 504267/94 May 19, 1994
BPI Variants
PCT/WO 94/21280 September 29, 1994
Use of BPI and LBP Levels and Ratios Thereof in Diagnosis
PCT/WO 94/25476 November 10, 1994
BPI Variants
PCT/WO 95/01428 January 12, 1995
Glycosylated and Non-glycosylated BPI and Methods for Producing Same
GRANULOCYTE PROTEINS
EPO 87/117408.2 June 29, 1988
Antimicrobial Proteins, Compositions Containing Same and Uses Thereof
PCT/US90/06317 May 16, 1991
Recombinant Production of Lactoperoxidase
PCT/US91/04869 January 23, 1992
Basophil Granule Proteins
PCT WO 94/06829 March 31, 1994
Basophil Granule Proteins
PROTEASE NEXIN-1
EPO 87/810057.7 August 26, 1987
Neurite-Promoting Factor and Processes for the Manufacture Thereof
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PCT/US91/02161 October 17, 1991
Use of Protease Nexin-1 to Mediate Wound Healing
PCT/US91/04331 December 26, 1991
Protease Nexin-1 Variants
PCT/US92/10484 June 10, 1993
Use of Protease Nexin-1 as an Anti-inflammatory
EPO 91/9074062 August 25, 1993
Use of Protease Nexin-1 to Mediate Wound Healing
Japan 5-508148 November 18, 1993
Use of Protease Nexin-1 to Mediate Wound Healing
Japan 6-501148 February 10, 1994
Protease Xxxxx-0 Xxxxxxxx
X-00-0
XXX 89/303714.3 October 18, 1989
14-Beta-Gal Mammalian Lectins
PCT WO 94/11497 May 26, 1994
Method of Causing Selective Immunosuppression using HL-60-Relate Lectins
LACTOPEROXIDASE
PCT WO 91/06639 May 16, 1991
Recombinant Production of Lactoperoxidase
Japan 5-504679 July 22, 1993
Recombinant Production of Lactoperoxidase
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EXHIBIT C
LifeSeq(R) Specifications
LifeSeq(R) V4.2 Overview
LifeSeq(R) is a powerful genomic database, based on relational database
management system (RDBMS) architecture. The LifeSeq(R) database resides on a
UNIX server, available in either Oracle or Sybase format and is accessed across
distributed client/server networks by users working on Macintosh, PC, or UNIX
computers such as DEC, SGI and Sun.
LifeSeq(R) currently has two core components: the DNA Sequence database and the
Gene Expression database. The DNA Sequence database contains the nucleotide
sequences for Incyte's computer-edited ESTs and provides access to robust
sequence-analysis tools such as BLAST. In addition to Incyte's proprietary cDNA
sequences, the LifeSeq(R) database includes public-domain xxxxxxxx xxxx from the
WashU-Merck EST Project. The Gene Expression database contains high-quality
annotations for each sequence. The xxxxxxxx xxxx and annotations in LifeSeq(R)
are generated by an automated bioanalysis suite of software, which is
proprietary to Incyte and not included as part of the LifeSeq(R) product.
In addition to the two databases, the LifeSeq(R) product includes a set of
utility programs that enables customers to link their sequencing databases into
the LifeSeq(R) application.
LifeSeq(R) as a product is naturally under continual update, review, and
development. The specifications presented here reflect the functionality present
in version 4.2 released on October, 1996.
[*]
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