Exhibit 10.73
***TEXT OMITTED AND FILED SEPARATELY
CONFIDENTIAL TREATMENT REQUESTED
UNDER 17 C.F.R. SS.SS.200.80(B)(4),
200.83 AND 240.24B-2
THIS HEADS OF AGREEMENT entered into as of the 30th day of June 1998
("Date of the Heads") by and between SUGEN INC., a Delaware corporation
("SUGEN") with offices at 000 Xxxxxxxxx Xxxxx, Xxxxxxx Xxxx, XX 00000-0000 and
PROCHON BIOTECH LIMITED, an Israeli corporation ("PROCHON") with its registered
office at Building 12, Kiryat Xxxxxxxx, Xxxxxxx Xxxx, X.X. 0000, Xxxxxxx 00000,
Xxxxxx.
RECITALS
WHEREAS, SUGEN is a leader in the research and development of small
molecule drugs which modulate tyrosine kinase and tyrosine phosphotase signaling
pathways; and
WHEREAS, PROCHON is a leader in the research and development of
treatments for skeletal disorders and bone- and cartilage-related diseases; and
WHEREAS, SUGEN and PROCHON desire to enter into a definitive agreement
establishing a collaborative relationship in order to research, develop,
manufacture and market products for the treatment of achondroplasia and other
growth disorders; and
WHEREAS, SUGEN and PROCHON desire in the interim to enter into these
binding Heads of Agreement which set forth the principal terms of such
collaborative relationship;
NOW, THEREFORE, in consideration of the foregoing and the covenants and
promises contained in this Heads of Agreement, the parties agree as follows;
ARTICLE 1
DEFINITIONS
As used herein, the following terms shall have the following meanings:
1.1 "Affiliate" shall mean any company or entity controlled by,
controlling, or under common control with a party hereto and shall include
without limitation any company fifty percent (50%) or more of whose voting stock
or participating profit interest is owned or controlled, directly or indirectly,
by a party, and any company which owns or controls, directly or indirectly,
fifty percent (50%) of more of the voting stock of a party; "Affiliate" shall
specifically include, in the case of SUGEN, [...***...].
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1.2 "Closely Related Compounds" shall mean a compound identified in the
Collaboration which is [...***...]* of the Collaboration Compound and which
[...***...] as Collaboration Compound.
1.3 "Collaboration" shall mean the program of collaborative research
and development described in Article 3.
1.4 "Collaboration Agreement" shall mean the definitive collaboration
agreement to be entered by the parties on terms including (but not limited to)
the terms herein provided.
1.5 "Collaboration Compound" the compound identified in the
Collaboration and selected by the RMC for development by PROCHON.
1.6 "Confidential Information" shall mean each party's confidential
information, inventions, know-how or data disclosed pursuant to this Heads of
Agreement or Collaboration Agreement and shall include manufacturing, marketing,
financial, personnel and other business information and plans, whether in oral,
written, graphic or electronic form.
1.7 "Effective Date" shall mean the effective date of the Collaboration
Agreement.
1.8 "Field of Collaboration" shall mean the discovery and development
of [...***...].
1.9 "Field of Commercialization" shall mean the treatment of
[...***...] in humans.
1.10 "FTE" shall mean a full-time equivalent scientific person year of
scientific and/or technical work, on or directly related to the Collaboration,
carried out by one or more employees or consultants of SUGEN, each of whom
devotes a portion of his or her time to the Collaboration; provided, however,
that PROCHON understands and agrees that SUGEN retains complete discretion to
change the identity, the frequency and time which any individual employee
devotes to the Collaboration. Scientific work on or directly related to the
Collaboration to be performed by SUGEN employees or consultants can include, but
is not limited to, experimental laboratory work, recording and writing up
results, reviewing literature and references, holding scientific discussions,
managing and leading scientific staff, and carrying out Collaboration management
duties (including service on the Research Management Committee as defined
below).
1.11 "License Agreement" shall mean an agreement pursuant to which
SUGEN grants PROCHON a worldwide exclusive license to develop, make, have made,
use and sell a Licensed Product, substantially in the form to be attached as an
Exhibit to the Collaboration Agreement.
1.12 "Licensed Product" shall mean any pharmaceutical product which
contains the Collaboration Compound or a Closely Related Compound substituted as
provided in Section 5.4, including all formulations, line extensions or modes of
administration thereof, for use within the Field of Commercialization.
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1.13 "Net Sales" shall mean all revenues recognized in accordance with
generally accepted accounting principles from the sale of the Licensed Product
or Retained Products, less transportation charges, commissions, discounts,
credits allowed for defective or returned goods and other allowances (actually
paid or allowed, including but not limited to, prompt payment and volume
discounts, charge backs from wholesalers and other allowances granted to the end
commercial customer of the Licensed Product or Retained Product, whether in cash
or trade), insurance and sales and other taxes based on sales prices when
included in gross sales, but not including taxes assessed on income derived from
such sales.
1.14 "Phase I" means those clinical trials on sufficient numbers of
normal volunteers and patients that are designed to establish that a drug is
safe for its intended use, and to support its continued testing in Phase II
Clinical Trials.
1.15 "Phase II" means those clinical trials on sufficient numbers of
patients that are designed to establish the safety and biological activity of a
drug for its intended use, and to define warnings, precautions and adverse
reactions that are associated with the drug in the dosage range to be
prescribed.
1.16 "Program Know-How" shall mean all tangible or intangible know-how,
trade secrets, inventions (whether or not patentable), data, clinical and
preclinical results, information, and any physical, chemical or biological
material any replication or any part of such material all of which is in any way
derived from or developed pursuant to activities undertaken in the conduct of
the Collaboration by either party or its consultants or collaborators.
1.17 "Program Technology" shall mean the Program Patents and the
Program Know-How.
1.18 "Program Patents" shall mean all patents, both foreign and
domestic, including without limitation, all substitutions, extensions, reissues,
renewals and inventors certificates covering inventions made in the conduct of
the Collaboration by a party or its consultants or collaborators.
1.19 "Regulatory Approval" shall mean any approval licenses,
registrations, or authorisations of any federal, state or local regulatory
agency, department, bureau or other government entity, necessary for the
manufacture, use, storage, import, transport or sale of Licensed Product in a
country.
1.20 "Research Management Committee" or "RMC" shall mean that committee
to be formed pursuant to Section 3.2.
1.21 "Retained Products" shall mean products containing compounds to
which SUGEN retains rights as provided in Section 5.6.
1.22 "Term of the Collaboration" shall have the meaning assigned to it
in Section 3.6.
1.23 "Valid Claim" shall mean a patent claim contained in a patent
application which has been filed for not more than five (5) years or in an
issued and unexpired patent which has not
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lapsed or been declared invalid or unenforceable by a court in a decision which
is unappealable or is not appealed.
1.24 "Workplan" shall have the meaning assigned to it in Section 4.1.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
2.1 Representations and Warranties of SUGEN
(a) Corporate Power. SUGEN is duly organized and validly
existing under the laws of Delaware and has full corporate power and authority
to enter into this Heads of Agreement and to carry out the provisions hereof.
(b) Due Authorization. SUGEN is duly authorised to execute and
deliver this Heads of Agreement and to perform its obligations hereunder. The
person executing this Heads of Agreement on SUGEN's behalf has been duly
authorized to do so by all requisite corporate action.
(c) Binding Agreement. This Heads of Agreement is a legal and
valid obligation binding upon SUGEN and enforceable in accordance with its
terms. The execution, delivery and performance of this Heads of Agreement by
SUGEN does not conflict with any agreement, instrument or understanding, oral or
written, to which it is a party or by which it may be bound, nor violate any
material law or regulation of any court, governmental body or administrative or
other agency having jurisdiction over it.
(d) Grant of Rights. SUGEN has not, and will not during the
term of this Heads of Agreement, grant any right to any third party which would
conflict with the rights granted to PROCHON hereunder.
(e) Validity. SUGEN is aware of no action, suit or inquiry or
investigation instituted by any governmental agency which questions or threatens
the validity of this Heads of Agreement.
2.2 Representations and Warranties of PROCHON
(a) Corporate Power. PROCHON is duly organized and validly
existing under the laws of Israel and has full corporate power and authority to
enter into this Heads of Agreement and to carry out the provisions hereof.
(b) Due Authorization. PROCHON is duly authorized to execute
and deliver this Heads of Agreement and to perform its obligations hereunder.
The person executing this Heads of Agreement on PROCHON's behalf has been duly
authorized to do so by all requisite corporate action.
(c) Binding Agreement. This Heads of Agreement is a legal and
valid obligation binding upon PROCHON and enforceable in accordance with its
terms. The
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execution, delivery and performance of this Heads of Agreement by PROCHON does
not conflict with any agreement, instrument or understanding, oral or written,
to which it is a party or by which it may be bound, nor violate any material law
or regulation of any court, governmental body or administrative or other agency
having jurisdiction over it.
(d) Grant of Rights. PROCHON has not, and will not during the
term of this Heads of Agreement, grant any right to any third party which would
conflict with the rights granted to SUGEN hereunder.
(e) Validity. PROCHON is aware of no action, suit, or inquiry
or investigation instituted by any governmental agency which questions or
threatens the validity of this Heads of Agreement.
ARTICLE 3
COLLABORATION SCOPE AND GOVERNANCE
3.1 Objective of the Research Collaboration. The parties agree to a
worldwide cooperative arrangement within the Field of Collaboration as provided
in this Article 3.
3.2 Research Management Committee. The goals of the Collaboration shall
be determined by, and progress of the Collaboration monitored by, a Research
Management Committee comprised of two (2) representatives each from PROCHON and
SUGEN. All decisions of the Research Management Committee shall be unanimous.
The Committee will agree the time and place of meetings, substitutions,
qualifications and other similar matters.
3.3 Functions and Powers of the Research Management Committee. The
Research Management Committee shall make recommendations to the parties with
respect to:
(i) establishing plans designed to accomplish the
goals of the Collaboration;
(ii) allocating tasks and coordinating activities
required to carry out the Collaboration;
(iii) periodically reviewing and revising the
Collaboration;
(iv) determining efficacy criteria for first in vivo
lead compound;
(v) monitoring progress of the Collaboration and the
parties' diligence in carrying out their responsibilities thereunder;
(vi) encouraging and facilitating ongoing cooperation
between the parties; and
(vii) such other matters as shall be expressly
directed to the RMC for decision, determination or selection by the terms of
this Agreement.
5
3.4 Disagreements. In the event the Research Management Committee shall
be unable to agree the matter shall be referred to the respective Chairman of
the Board of each party, unless otherwise stated in the Collaboration Agreement.
3.5 Exclusivity. SUGEN and PROCHON, including their Affiliates and
consultants, will collaborate with one another exclusively with respect to the
Field of Collaboration during the Term of the Collaboration.
3.6 Term of Collaboration. The Collaboration shall commence on the Date
of the Heads and continue for a period of [...***...]*, subject to renewal upon
terms mutually agreeable to the parties and subject to earlier termination of
this Head of Agreement as provided in Articles 11 ("Term of the Collaboration").
ARTICLE 4
COLLABORATIVE RESEARCH PROGRAM
4.1 Collaboration Activities
Commencing promptly after the Date of the Heads, and
continuing, subject to Section 11.3 hereof, until achievement of the milestone
event referred to in Section 6.2, each party shall diligently carry out the
activities in the Field of Collaboration specified to be performed by it in the
outline of activities set forth in the workplan to be attached as an exhibit to
the Collaboration Agreement (the "Workplan"). After achievement of that event,
each party shall conduct such additional activities in the Field of
Collaboration as they shall agree. In the event the parties are unable to so
agree within [...***...] after achievement of such event, then (i) SUGEN shall
be obligated to provide [...***...] until the expiration of the Term of the
Collaboration, commencing on the first business day after such [...***...], and
PROCHON shall be obligated to pay SUGEN $[...***...] per FTE and (ii) the tasks
and activities of such FTEs shall be determined by the RMC. The parties
contemplate that the primary responsibility in the Collaboration shall be, in
the case of SUGEN, to identify the Collaboration Compound and, in the case of
PROCHON, to clinically develop the Collaboration Compound.
4.2 Free Exchange of Information
Insofar as each party is legally permitted, SUGEN and PROCHON
shall freely exchange information relating to the Collaboration during the Term
of the Collaboration.
4.3 Research Support. During the first year of the Collaboration or
until achievement of the milestone event described in Section 6.2, if earlier,
SUGEN shall provide at least [...***...] to support collaborative research and
development activities and such additional FTEs as shall be determined by the
RMC to be necessary. Thereafter during the Collaboration, SUGEN and PROCHON
shall provide such research and development support as they shall agree as
provided in the second sentence of Section 4.1.
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ARTICLE 5
PRODUCT DEVELOPMENT; LICENSES
5.1 Selection of Collaboration Compound. On or before the end of the
Term of the Collaboration, the RMC shall select the Collaboration Compound. The
RMC shall begin meeting as promptly as practicable after the Date of the Heads
and shall select and agree on the criteria for the selection of the
Collaboration Compound.
5.2 Commercial License of PROCHON. Upon the selection of the
Collaboration Compound, SUGEN and PROCHON shall enter into a License Agreement
granting PROCHON an exclusive worldwide license of the commercial rights to the
Collaboration Compound as a Licensed Product within the Field of
Commercialization. Such License Agreement shall require PROCHON to pay SUGEN
royalties on annual worldwide Net Sales of the Licensed Product at a rate equal
to [...***...] of Net Sales of Licensed Product, and at a rate equal to
[...***...] of sub-licensing payments received.
5.3 Development of Collaboration Compound. PROCHON shall be responsible
for all clinical testing of the Licensed Product at its own expense. The License
Agreement shall obligate PROCHON or its sublicensee to diligently pursue
commercialization of the Licensed Product; provided, however, that if PROCHON or
its sublicensee fails to commence Phase I Clinical Trials within one year after
the filing of an IND for the Licensed Product (unless such failure is due to
PROCHON's or its sublicensee's difficulty in enrolling patients in such Phase I
Clinical Trials) or to diligently continue thereafter, all commercialization
rights shall revert, after notice and opportunity to cure, to SUGEN subject to
the payment of royalties equal to [...***...] of Net Sales if the Licensed
Product has not completed Phase 1 clinical testing, [...***...] if it has
completed Phase 1 but has not completed Phase II clinical testing and
[...***...] if it has completed Phase II clinical testing. In the event SUGEN
shall desire to use clinical data obtained by PROCHON, it will reimburse PROCHON
its reasonable actual costs therefor.
5.4 Back-up Compounds
(a) During a period of [...***...] after the effective date of
the License Agreement, SUGEN will reserve up to [...***...] Closely Related
Compounds identified by the RMC as back up compounds for the Collaboration
Compound. SUGEN will not develop or license others to develop for any purpose
either of such Closely Related Compounds during such period prior to the date,
if any, PROCHON elects to substitute as hereinafter provided. PROCHON may during
such period elect to substitute a Closely Related Compound for the Collaboration
Compound. Upon written notice to SUGEN identifying the Closely Related Compound
to be so substituted the License Agreement will be amended as may be necessary
so that such Closely Related Compound shall become the Licensed Product for all
purposes and all rights to the Collaboration Compound shall revert to SUGEN,
subject to Section 5.6. After any such substitution, PROCHON may during such
period elect to substitute the [...***...] Closely Related Compound for
[...***...] Closely Related Compound. Upon written notice to SUGEN identifying
the Closely Related Compound to be so substituted the License Agreement will be
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amended as may be necessary so that such Closely Related Compound shall become
the Licensed Product for all purposes and all rights to the Collaboration
Compound and [...***...]Closely Related Compound shall revert to SUGEN, subject
to Section 5.6.
(b) If by the [...***...] anniversary of the Date of the Heads
PROCHON obtains competent evidence that neither the Collaboration Compound nor
any Closely Related Compound is suitable for development within the Field of
Commercialization, then PROCHON may present such evidence in writing to SUGEN
and request SUGEN's assistance to develop one (1) or more additional compounds
for use within the Field of Commercialization. If PROCHON elects to do so, the
parties will negotiate in good faith to develop a modified Workplan and to
establish mutually acceptable funding to support SUGEN's performance of such
development activities. Any compounds with respect to which SUGEN has a prior
commitment to a third party or to an established internal development program
(to be defined in the Collaboration Agreement) shall not be available for use in
any development activities conducted pursuant to this Section 5.4(b).
5.5 Research License to PROCHON. During the Collaboration, SUGEN grants
to PROCHON such licenses or sublicenses as shall be necessary for PROCHON to
participate in the Collaboration.
5.6 SUGEN Retained Rights. SUGEN shall retain the exclusive worldwide
right outside of the Field of Commercialization to commercialize compounds
identified in the Collaboration not selected as the Collaboration Compound or
Closely Related Compound. With respect to (i) novel compounds (i.e., compounds
other than those that are claimed in issued patents or pending patent
applications owned or controlled by SUGEN as of the Effective Date or other
compounds disclosed in invention disclosures provided by SUGEN's patent counsel
to PROCHON's counsel as of the Effective Date) made in the course of the
Collaboration, and (ii) other compounds having activity previously known to
SUGEN that are determined during the course of the Collaboration to be active
with respect to [...***...], if PROCHON contributes intellectual property
valuable to the commercialization of such compounds outside the Field of
Commercialization, SUGEN shall pay PROCHON royalties on annual worldwide Net
Sales of such compounds at a rate equal to [...***...] of Net Sales, and at a
rate equal to [...***...] of sub-licensing revenues. SUGEN agrees it will not,
and will not license others to commercialize any compound for use in the Field
of Commercialization so long as PROCHON continues to develop the Licensed
Product as provided in Section 5.3 hereof and to commercialize the Licensed
Product as will be provided in the License Agreement.
5.7 Royalty Adjustments. In the event PROCHON shall be required to pay
a royalty to a third party because the sale of the Licensed Product infringes a
Valid Claim of an issued patent claiming a composition of matter, PROCHON may
offset [...***...] of such royalty amount against the royalties payable to SUGEN
under the License Agreement. During such period that the Licensed Product shall
not be the subject of a Valid Claim for the composition of matter, the royalty
rates specified in Section 5.2 shall be reduced by [...***...].
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5.8 Research License to SUGEN. During the Collaboration, PROCHON grants
to SUGEN such licenses or sublicenses as shall be necessary for SUGEN to
participate in the Collaboration.
5.9 PROCHON Option to Propose Joint Commercialization. The License
Agreement shall provide that, at PROCHON's option, the parties will enter into
negotiations relating to the possible joint commercialization of the Licensed
Product [...***...].
ARTICLE 6
FINANCIAL SUPPORT
6.1 Research Payments. PROCHON shall pay SUGEN concurrently with the
execution of the Heads of Agreement $750,000 in support of SUGEN's activities in
the Collaboration. After achievement of the milestone described in Section 6.2,
PROCHON shall pay SUGEN $[...***...] for [...***...] provided pursuant to
Section 4.1 or such other number of FTEs as the parties may mutually agree or as
the RMC may approve, quarterly in advance. PROCHON shall reimburse SUGEN for
[...***...] SUGEN provides to the Collaboration. PROCHON shall pay SUGEN for the
cost of services provided by third parties approved by the RMC, upon receipt of
invoice from SUGEN.
6.2 Milestone Payments. Except as otherwise hereinafter provided
PROCHON shall pay SUGEN a nonrefundable payment of $[...***...] within thirty
(30) days of the date the parties succeed in [...***...] which meets RMC
specified efficacy criteria, which criteria the RMC shall select and agree upon
promptly after the Date of the Heads.
6.3 Miscellaneous Payment Provisions. The Collaboration Agreement will
include terms concerning the method of making payments, late payments and
withholding on payments.
6.4 Cooperation Concerning BIRD Funding. SUGEN will provide such
reasonable assistance to PROCHON in submitting an application for BIRD funding
as it shall determine to be appropriate in light of the rules and regulations
governing such applications.
ARTICLE 7
INTELLECTUAL PROPERTY
7.1 Ownership of Program Technology. Subject to the licenses described
in Article 5, all Program Technology invented, discovered or developed solely by
the employees and agents of one party shall be owned by that party. Subject to
the licenses described in Article 5, all Program Technology invented, discovered
or developed jointly by the employees and agent of both parties shall be owned
solely by [...***...] if it relates to [...***...] within the Field of
Collaboration, solely owned by [...***...] if it relates to [...***...] and
jointly owned in all other cases.
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7.2 Patenting of Program Technology. Each party shall be responsible at
its own expense and with counsel of its choosing, for the filing, prosecution
and maintenance of patent applications and patents throughout the world for
Program Technology owned solely by it. The RMC shall determine the party so
responsible in the case of jointly owned Program Technology. The parties shall
consult from time to time concerning the countries in which patent applications
are filed as well as the scope of protection to be sought.
ARTICLE 8
TRADEMARK AND OTHER PROVISIONS
The Collaboration Agreement or License Agreement, as appropriate, will
contain such other provisions as the parties may agree concerning the Program
Technology, including without limitation, enforcement and defense against third
parties patents and will provide for terms and conditions concerning the use and
protection of trademarks approved by each party.
ARTICLE 9
INFORMATION AND REPORTS
The parties will make available and disclose to one another all results
of the work conducted in the Collaboration. All discoveries or inventions made
by either party hereunder will be promptly disclosed to the other party. The
parties will exchange, on a periodic basis, verbal or written reports of their
development work. The Collaboration Agreement will provide the frequency and
manner of information exchanged between the parties.
ARTICLE 10
CONFIDENTIALITY; PUBLICATION
10.1 Confidentiality. Except to the extent expressly authorized by this
Heads of Agreement or otherwise agreed in writing by the parties, the parties
agree that, for the term of this Heads of Agreement and the Collaboration
Agreement and for [...***...] thereafter, the receiving party shall keep
confidential and shall not publish or otherwise disclose and shall not use for
any purpose other than as provided for in such Agreements any Confidential
Information furnished to it by the other party pursuant to such Agreements
unless the receiving party can demonstrate 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 available to the public or otherwise part of
the public domain at the time of its disclosure to the receiving party;
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(c) became generally available to the public or otherwise part
of the public domain after its disclosure and other than through any act or
omission of the receiving party in breach of such Agreements;
(d) was disclosed to the receiving party, other than under an
obligation of confidentiality to a third party, by a third party who had no
obligation to the disclosing party not to disclose such information to others;
or
(e) was independently discovered or developed by the receiving
party without the use of Confidential Information belonging to the disclosing
party.
10.2 Authorized Disclosure. Each party may disclose Confidential
Information belonging to the other party to the extent such disclosure is
reasonably necessary in connection with:
(a) filing or prosecuting patents relating to Licensed
Products or Projects;
(b) regulatory filings;
(c) prosecuting or defending litigation;
(d) complying with applicable governmental regulations;
(e) conducting pre-clinical or clinical trials of Licensed
Products; or
(f) disclosure to Affiliates who agree to be bound by similar
terms of confidentiality.
Notwithstanding the foregoing, in the event a party is required to make
a disclosure of the other party's Confidential Information pursuant to this
Section 10.2 it will, except where impracticable, give reasonable advance notice
to the other party of such disclosure and use best efforts to secure
confidential treatment of such information. In any event, the parties agree to
take all reasonable action to avoid disclosure of Confidential Information
hereunder.
10.3 Publications. Each party primarily responsible for a proposed
publication, whether written or oral, shall at least thirty (30) days before
presentation or submission of the proposed publication to a third party, submit
such proposed publication to each member of the RMC for review in connection
with obtaining or preservation of patent rights and/or to determine whether
Confidential Information should be modified or deleted. The RMC shall have
thirty (30) days in which to review each proposed publication. The review period
may be extended for an additional thirty (30) days when the RMC provides a
reasonable need for such extension, including, but not limited to the
preparation and filing of pertinent patent applications.
10.4 Nondisclosure and Invention Assignment Agreements. Each employee
or consultant of SUGEN or PROCHON and each third party who is participating in
research or development of Licensed Products hereunder shall sign a
nondisclosure and invention assignment agreement in form and substance
satisfactory to both SUGEN and PROCHON.
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10.5 This Heads of Agreement. The parties agree that the material terms
of this Agreement shall be considered Confidential Information. The parties will
consult with one another and agree on the provisions of this Heads of Agreement
to be redacted in any filings made by the parties with the United States
Securities and Exchange Commission or as otherwise required by law.
ARTICLE 11
TERM AND TERMINATION OF AGREEMENT
11.1 Term. Unless earlier terminated in accordance with Section 11.2,
this Heads of Agreement shall expire upon the earlier of the execution of the
Collaboration Agreement or the expiration of the last to expire Program Patent
for which a license is granted hereby.
11.2 Termination for Material Breach. Each party shall have the right
to terminate this Heads of Agreement after appropriate written notice to the
other that the other is in material breach of this Heads of Agreement, unless
the other party cures the breach within thirty (30) days of the date notice
thereof was given, or, in the case breach cannot be cured in such period, the
party continues to use diligent efforts to cure such breach until actually
cured. Licenses granted to the non-breaching party under this Heads of Agreement
shall not be affected by termination for material breach. All licenses to the
breaching party shall automatically terminate upon such termination.
11.3 Termination for Failure to Achieve Milestone. Either party may
terminate this Heads of Agreement in the event the milestone event referred to
in Section 6.2 is not achieved within [...***...] after the Date of the Heads.
11.4 Accrued Rights, Surviving Obligations. Termination of this Heads
of Agreement shall not affect any accrued rights of either party. The terms of
Section 5.6, in the case of termination pursuant to Section 11.3, Section 11.4,
and Articles 7, 10, 14, and 16 shall survive termination of this Heads of
Agreement.
ARTICLE 12
INDEMNITY
The Collaboration Agreement shall provide that the parties shall
indemnify one another for their own negligent actions and shall prescribe a
method for notifying one another of any legal actions and allocating the primary
responsibility for defense of any claims.
ARTICLE 13
REPRESENTATIONS & WARRANTIES
In the Collaboration Agreement each party shall make various
representations and warranties regarding corporate power, due authorization and
the binding nature of the agreement.
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ARTICLE 14
GOVERNING LAW; DISPUTE RESOLUTION
14.1 Governing Law; Language. This Heads of Agreement shall be governed
by California law without regard to its principles of conflict of laws. This
Heads of Agreement has been prepared and shall be interpreted in the English
language.
14.2 Legal Compliance. Within thirty days of the date hereof, the
parties shall review in good faith and cooperate in taking such actions to
ensure compliance of this Heads of Agreement and the terms of the proposed
Collaboration Agreement with all applicable laws, including without limitation.
14.3 Dispute Resolution. In the event of any dispute, the parties shall
refer such dispute to the Chairman of the Board of SUGEN and the Chairman of the
Board of PROCHON for attempted resolution by good faith negotiations within
thirty (30) days after such referral is made. The Collaboration Agreement will
provide for such further dispute resolution mechanisms as the parties may agree.
ARTICLE 15
NEGOTIATION OF THE COLLABORATION AGREEMENT
15.1 Completion of Collaboration Agreement. Following the execution of
this Heads of Agreement both SUGEN and PROCHON agree to negotiate in good faith
and proceed expeditiously to complete the terms of the Collaboration Agreement,
within thirty (30) days of date hereof.
15.2 Provisions to be Included. The Collaboration Agreement shall
include the terms specified in this Heads of Agreement and shall also include
provisions those customary in agreements of the character between pharmaceutical
companies including, without limitation, those relating to: relationship of the
parties, arbitration or other alternative dispute resolution mechanism,
assignments, force majeure, notices, amendments, waiver, counterparts, headings,
governing law, language, entire agreement, severability, public announcements.
15.3 Mediation of Issues. If by the date specified in Section 15.1 or
any mutually agreed extension date the parties have not executed the
Collaboration Agreement then either party may give notice to the other that it
wants a mediator to be appointed to aid the parties in resolving any remaining
issues. If such notice is given the parties shall within the next thirty (30)
days agree upon a mediator failing which either party shall request the
International Chamber of Commerce to appoint a mediator having expertise in
agreements of the character of this Heads of Agreement among biopharmaceutical
companies. The parties shall meet with such mediator over a period of forty-five
(45) days in good faith to resolve any outstanding issues and to finalize the
Collaboration Agreement. If after such period the parties have still not
finalized the Collaboration Agreement the mediator shall set the terms of any
remaining issues, and such terms shall become part of the Collaboration
Agreement and shall be binding upon the parties.
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* CONFIDENTIAL TREATMENT REQUESTED
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ARTICLE 16
PUBLIC ANNOUNCEMENTS
Each party agrees that, prior to the execution of the Collaboration
Agreement, except as may be required by law, it shall not disclose the
existence, substance or details of this Heads of Agreement without the prior
written consent of the other party, such consent not to be unreasonably
withheld. Nothing herein shall prevent either party from disclosing such
information as reasonably necessary to its Affiliates; provided however, each
party shall take such steps necessary to ensure that such Affiliates agree to be
bound to the provisions of this Article 16. In cases in which disclosure may be
required by law, the disclosing party, prior to such disclosure, shall notify
the non-disclosing party of the contents of the proposed disclosure. Consistent
with applicable law, the non-disclosing party shall have the right to make
reasonable changes to the disclosure to protect its interests. The disclosing
party shall not unreasonably refuse to include such changes in its disclosure.
ARTICLE 17
SEVERANCE
If any Article or part thereof of this Heads of Agreement is declared
invalid by any court of competent jurisdiction, or any government or other
agency having jurisdiction over either SUGEN or PROCHON deems any Article or
part thereof to be contrary to any anti-trust or competition laws then such
declaration shall not affect the remainder of the Article or other Articles. To
the extent possible the parties shall revise such invalidated Article or part
thereof in a manner that will render such provision valid without impairing the
parties original interest.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Heads of
Agreement.
SUGEN INC. PROCHON BIOTECH LIMITED
By: /s/ K. Xxxxx Xxxxx, Ph.D. By: /s/ Xxxxxxx Xxxxx
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K. Xxxxx Xxxxx, Ph.D. Xxxxxxx Xxxxx
Executive Vice President Director
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