EXHIBIT 10.1
EXECUTION COPY
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LICENSE AGREEMENT
Among
XXX XXXXXXXX XXXXXXX,
XXXXXXX-XXXXX SQUIBB COMPANY
and
WOMEN FIRST HEALTHCARE, INC.
for
VANIQA(R)
Dated as of June 25, 2002
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TABLE OF CONTENTS
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Page
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SECTION 1. DEFINITIONS ................................................... 1
Section 1.01. Definitions ........................................ 1
Section 1.02. Other Definitions .................................. 3
Section 1.03. Interpretations .................................... 3
SECTION 2. LICENSE GRANTS ................................................ 4
Section 2.01. License Grants by BMS .............................. 4
Section 2.02. License Grants by Xxxxxxxx ......................... 4
Section 2.03. License Grants by Purchaser; Right of Reference .... 4
Section 2.04. Covenant To Take No Action ......................... 4
Section 2.05. Sublicenses ........................................ 4
Section 2.06. Delivery Obligations ............................... 5
Section 2.07. No Other Rights Granted ............................ 5
SECTION 3. OWNERSHIP AND ENFORCEMENT OF INTELLECTUAL PROPERTY ............ 5
Section 3.01. Ownership of Licensed Property ..................... 5
Section 3.02. Maintenance of Patents ............................. 5
Section 3.03. Infringement of Licensed Property .................. 5
SECTION 4. TERM AND TERMINATION .......................................... 6
Section 4.01. Term and Expiration ................................ 6
Section 4.02. Termination of Licenses ............................ 6
Section 4.03. Effect of Termination of a License ................. 6
Section 4.04. Accrued Rights; Surviving Obligations .............. 6
SECTION 5. CONFIDENTIALITY ............................................... 7
Section 5.01. Generally .......................................... 7
Section 5.02. Permitted Disclosures .............................. 7
Section 5.03. Confidentiality Agreement .......................... 7
SECTION 6. MISCELLANEOUS ................................................. 8
Section 6.01. Assignment ......................................... 8
Section 6.02. Non-Waiver ......................................... 8
Section 6.03. Entirety of Agreement .............................. 8
Section 6.04. Public Announcements ............................... 8
Section 6.05. Relationship of the Parties ........................ 8
Section 6.06. Counterparts ....................................... 9
Section 6.07. Severability ....................................... 9
Section 6.08. Expenses ........................................... 9
Section 6.09. Descriptive Headings ............................... 9
Section 6.10. Amendments and Waivers ............................. 9
(i)
TABLE OF CONTENTS (continued)
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Section 6.11. Injunctive Relief. ................................ 9
Section 6.12. Dispute Resolution. ............................... 9
Section 6.13. Governing Law. .................................... 10
Section 6.14. Successors and Assigns. ........................... 10
Section 6.15. Waiver of Jury Trial. ............................. 10
ANNEXES
Annex A Xxxxxxxx Patents
Annex B Foreign Patent Maintenance
(ii)
THIS LICENSE AGREEMENT (this "Agreement"), dated as of June 25, 2002
(the "Effective Date"), is among Xxx Xxxxxxxx Xxxxxxx, a Delaware corporation
("Xxxxxxxx"), Xxxxxxx-Xxxxx Squibb Company, a Delaware corporation ("BMS") and
Women First HealthCare, Inc., a Delaware corporation "Purchaser").
RECITALS
WHEREAS, BMS and Xxxxxxxx, through their respective wholly-owned
subsidiaries, entered into a Delaware general partnership on October 7, 1996 to
form Westwood-Squibb Colton Holdings Partnership (the "Partnership");
WHEREAS, Purchaser, the Partnership, BMS and Xxxxxxxx entered into an
Asset Purchase Agreement, dated as of June 25, 2002 (the "Asset Purchase
Agreement"), pursuant to which the Partnership will sell to Purchaser, and
Purchaser will purchase from the Partnership, on the Effective Date, certain
rights, title and interest in and to the "Business" (as defined in the Asset
Purchase Agreement);
WHEREAS, BMS and Xxxxxxxx, in partial consideration of the payments
that are to be made pursuant to the Asset Purchase Agreement, desire to grant to
Purchaser certain licenses to assist Purchaser in commercializing the Product
(as defined below) and Improvements (as defined below) thereto; and
WHEREAS, Purchaser, in partial consideration of the rights granted to
it under this Agreement, desires to grant to Xxxxxxxx certain rights of
reference to the Licensed Regulatory Documentation.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and promises contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
SECTION 1.
DEFINITIONS
Section 1.01. Definitions.
For purposes of this Agreement:
"Acquired Intellectual Property" shall mean the Intellectual Property,
as defined in the Asset Purchase Agreement.
"Affiliate" shall mean, with respect to any Person, any Person which,
directly or indirectly, controls, is controlled by, or is under common control
with, the specified Person. For the purposes of this definition, the term
"control", as applied to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management of
that Person, whether through ownership of voting securities or otherwise.
"BMS Know-How" shall mean all Know-How Controlled by BMS or its
Affiliates, including Westwood-Squibb Holdings, Inc., as of the Effective Date
that is not Acquired Intellectual Property.
"BMS/Xxxxxxxx Know-How" shall mean the BMS Know-How and the Xxxxxxxx
Know-How.
"BMS Patents" shall have the meaning set forth in the Asset Purchase
Agreement.
"Controlled by" shall mean with respect to any Know-How, copyright,
patent or other intellectual property right that a party owns, has a license to,
or otherwise uses such Know-How, copyright, patent or other intellectual
property right and has the ability to grant to the other party access, a license
or a sublicense (as applicable) to such Know-How, copyright, patent or other
intellectual property right as provided for in this Agreement without violating
the terms of any agreement or other arrangement with any third party existing at
the time such party would be first required under this Agreement to grant the
other party such access, license or sublicense.
"Xxxxxxxx Know-How" shall mean all Know-How Controlled by Xxxxxxxx or
its Affiliates, including Colton Research and Development, Inc., as of the
Effective Date that is not Acquired Intellectual Property.
"Xxxxxxxx Patents" shall mean (a) U.S. Patents 4,720,489 and 5,648,394,
(b) all divisionals, continuations, continuations-in-part, reissues, extensions,
reexaminations, or renewal applications related to the foregoing; and (c) all
foreign equivalents to any of the foregoing. All such patents and foreign
equivalents granted or filed as of the date of this Agreement are set forth on
Annex A hereto.
"HMR License" shall mean the immunity from suit and reference rights
set forth in that certain agreement between Xxxxxxxx and Hoescht Xxxxxx Xxxxxxx,
Inc., et al., dated May 6, 1996.
"Improvement" shall mean any modification by Purchaser or its
Affiliates to the Product, including, without limitation, any modification in
its manufacture, composition, preparation, means of delivery or dosage and
reformulations, derivatives or presentations of the Product (including
prescription and over-the-counter formulations) but shall specifically exclude
(a) any such modification by Xxxxxxxx, BMS or any of their respective Affiliates
and (b) any modification to the Product that alters or substitutes the Product's
active ingredient, eflornithine hydrochloride.
"Indication" shall mean the treatment of unwanted facial hair in women.
"Know-How" shall mean product specifications, processes, product
designs, plans, trade secrets, ideas, concepts, inventions, manufacturing,
engineering and other manuals and drawings, standard operating procedures,
formulae, flow diagrams, chemical, pharmacological, toxicological,
pharmaceutical, physical, analytical, safety, quality assurance, quality control
and clinical data, technical information, research records, and all other
confidential or proprietary technical and business information which is used
exclusively in the Business. For the sake of clarity, none of the foregoing
information shall be included in Know-How to the extent that such information is
covered by any claim of any Patent, as defined in the Asset Purchase Agreement,
including without limitation any BMS Patent and any Xxxxxxxx Patent.
"Licensed Regulatory Documentation" shall mean all (a) regulatory
filings, supporting documents, chemistry, manufacturing and control data,
preclinical and clinical studies and tests and (b) records maintained under
record keeping or reporting requirements of the U.S. Food and Drug
Administration or any other governmental entity, in each case held by Purchaser
or any of its Affiliates and related to the Product or any Improvements thereto,
including the Regulatory Documentation (as defined in the Asset Purchase
Agreement.)
"Person" shall mean any individual, group, corporation, partnership or
other organization or entity (including any Federal, state, local or non-U.S.
government or any court of competent jurisdiction, legislature, governmental
agency, administrative agency or commission or other governmental authority or
instrumentality, U.S. or non-U.S.).
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"Product" shall mean the prescription form of VANIQA(R) (eflornithine
hydrochloride) Cream, 13.9%.
"Related Instruments" shall have the meaning set forth in the Asset
Purchase Agreement.
Section 1.02. Other Definitions.
The following terms have the meanings set forth in the Sections set
forth below:
Term Section
---- -------
Agreement Preamble
Asset Purchase Agreement Recitals
BMS Preamble
Business Recitals
Effective Date Preamble
Xxxxxxxx Preamble
Licensed Party 4.02
Partnership Recitals
Purchaser Preamble
Any other terms capitalized in this Agreement and not defined in Section 1.01 or
referenced in this Section 1.02 shall have the meaning ascribed to such term in
the Asset Purchase Agreement for the Product.
Section 1.03. Interpretations.
(a) In the event an ambiguity or a question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly
by the parties and no presumption or burden of proof shall arise favoring or
disfavoring any party by virtue of the authorship of any provisions of this
Agreement.
(b) The definitions of the terms herein shall apply equally to
the singular and plural forms of the terms defined. Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine and
neuter forms. The words "include", "includes" and "including" shall be deemed to
be followed by the phrase "without limitation". The word "will" shall be
construed to have the same meaning and effect as the word "shall". Unless the
context requires otherwise; (i) any definition of or reference to any agreement,
instrument or other document herein shall be construed as referring to such
agreement, instrument or other document or any addenda, schedules, exhibits or
amendments thereto, and as from time to time amended, supplemented or otherwise
modified (subject to any restrictions on such amendments, supplements or
modifications set forth herein or therein); (ii) any reference to any Laws
herein shall be construed as referring to such Laws as from time to time
enacted, repealed or amended; (iii) any reference herein to any Person shall be
construed to include the Person's successors and assigns; (iv) the words
"herein", "hereof" and "hereunder", and words of similar import, shall be
construed to refer to this Agreement in its entirety and not to any particular
provision hereof; (v) all references herein to Sections, Exhibits or Schedules
shall be construed to refer to Sections, Exhibits and Schedules of this
Agreement; and (vi) the singular number includes the plural number and vice
versa.
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SECTION 2.
LICENSE GRANTS
Section 2.01. License Grants by BMS.
In partial consideration of the payments that are to be made by
Purchaser pursuant to the Asset Purchase Agreement, BMS, on behalf of itself and
its Affiliates, hereby grants to Purchaser and its Affiliates an exclusive
(including with respect to BMS and its Affiliates), worldwide, royalty-free
license, under the BMS Know-How (in perpetuity), to make, have made, use, have
used, offer for sale, sell, import and export the Product and Improvements for
the Indication.
Section 2.02. License Grants by Xxxxxxxx.
(a) In partial consideration of the payments that are to be
made by Purchaser pursuant to the Asset Purchase Agreement, Xxxxxxxx, on behalf
of itself and its Affiliates, hereby grants to Purchaser and its Affiliates an
exclusive (including with respect to Xxxxxxxx and its Affiliates), worldwide,
royalty-free license, under the Xxxxxxxx Patents (for the term of each such
Patent) and the Xxxxxxxx Know-How (in perpetuity), to make, have made, use, have
used, offer for sale, sell, import and export the Product and Improvements for
the Indication. The license granted hereunder does not include, expressly or
otherwise, rights to any other patents owned by Xxxxxxxx other than the Xxxxxxxx
Patents.
(b) In partial consideration of the payments that are to be
made by Purchaser pursuant to the Asset Purchase Agreement, Xxxxxxxx, on behalf
of itself and its Affiliates, hereby grants to Purchaser a sublicense of all its
rights under the HMR License to make, have made, use, have used, offer for sale,
sell import and export the Product and Improvements for the Indication subject
to the terms and conditions thereof and Purchaser's assumptions of any payment
and reporting obligations thereunder with respect to its development and
commercialization of the Product and such Improvements.
Section 2.03. License Grants by Purchaser; Right of Reference.
(a) In partial consideration of the assets that are to be
acquired by the Purchaser pursuant to the Asset Purchase Agreement, Purchaser,
on behalf of itself and its Affiliates, hereby grants to Xxxxxxxx and its
Affiliates an exclusive (including with respect to Purchaser and its Affiliates)
worldwide, royalty-free license to the BMS Patents (for the term of each such
BMS Patent) for use in connection with the development and commercialization of
products specifically for indications other than the Indication.
(b) In partial consideration of the rights granted to
Purchaser pursuant to the Asset Purchase Agreement, Purchaser, on behalf of
itself and its Affiliates, hereby grants to Xxxxxxxx and its Affiliates an
exclusive (including with respect to Purchaser and its Affiliates),
royalty-free, perpetual license to access and reference the Licensed Regulatory
Documentation for use in connection with the development and commercialization
of products specifically for indications other than the Indication.
Section 2.04. Covenant To Take No Action.
Subject to the terms and conditions of this Agreement, Xxxxxxxx and BMS
each agree that they and their respective Affiliates will take no action under
any intellectual property rights of Xxxxxxxx, BMS or their respective Affiliates
that exist as of the Closing to prevent Purchaser from making, having made,
using, having used, offering for sale, selling, importing or exporting the
Product, in its formulation as of the Closing, for the Indication, anywhere in
the world.
Section 2.05. Sublicenses.
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Each party shall have the right to grant to third parties sublicenses under
any license granted it hereunder, subject to the prior written approval of the
licensor, which consent shall not be unreasonably withheld. All of the terms and
conditions of this Agreement shall apply to any sublicenses. Each party hereby
guarantees and assumes responsibility for the performance of all obligations so
imposed on any sublicensee by reason of operation of the applicable sublicense.
Notwithstanding the foregoing, Purchaser and its Affiliates may sublicense the
Xxxxxxxx Patents and the BMS/Xxxxxxxx Know-How to end-users of the Product
without BMS' or Xxxxxxxx'x consent, as applicable, to the extent the Xxxxxxxx
Patents and the BMS/Xxxxxxxx Know-How are embodied in or incorporated into the
Product and to the extent such sublicense is required for end-users of the
Product to use the Product as intended.
Section 2.06. Delivery Obligations.
Each party shall promptly upon another party's reasonable request deliver
to such other party any Know-How and, pursuant to Section 2.03, copies of any
Licensed Regulatory Documentation, licensed to such other party by such party
under this Agreement.
Section 2.07. No Other Rights Granted.
Any rights not expressly granted by a party are hereby reserved by such
party.
SECTION 3.
OWNERSHIP AND ENFORCEMENT OF INTELLECTUAL PROPERTY
Section 3.01. Ownership of Licensed Property.
Subject to any rights granted under Section 2, each party shall have and
retain sole and exclusive title to any intellectual property licensed by such
party under Section 2.
Section 3.02. Maintenance of Patents.
Xxxxxxxx shall (a) maintain the Xxxxxxxx Patents in the United States for
the term of each such Xxxxxxxx Patent, and (b) maintain the Xxxxxxxx Patents in
the foreign countries listed in Annex B in which any such Xxxxxxxx Patent has
been granted for the respective terms thereof. During the term of each Xxxxxxxx
Patent, Xxxxxxxx shall provide prompt notice of any material proceedings or
developments which may adversely affect the prosecution or maintenance of the
Xxxxxxxx Patents related to the Indication and shall provide such further
information related to such proceedings or developments as may be reasonably
requested by Purchaser.
Section 3.03. Infringement of Licensed Property.
If a party becomes aware that any of the intellectual property licensed
pursuant to Section 2 is or may be infringed by a third party, such party shall
promptly notify any licensor or licensee, as the case may be, to this Agreement
thereof within thirty (30) days of such awareness, and shall thereafter provide
such other information related to the infringement as may be reasonably
requested by any licensor or licensee, as the case may be. Upon receiving notice
of infringement or suspected infringement of its intellectual property, the
licensor of the intellectual property in question shall, at its option, (a) use
commercially reasonable efforts directed to prevent or enjoin any such
infringement and to prosecute any proceedings that may be necessary for such
purposes, all at its direction and expense, or (b) if the licensor fails to use
commercially reasonable efforts to prevent or enjoin any such infringement
within sixty (60) days of a written request from the licensed party to take such
action, the licensed party may seek to prevent or enjoin any such infringement
and to prosecute such proceedings at its expense. Any damages
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recovered shall be for the account of the party who brings the action. Each
party agrees to provide the party that is seeking to prevent or enjoin any such
infringement with all reasonable assistance, information and authority to
perform the foregoing.
SECTION 4.
TERM AND TERMINATION
Section 4.01. Term and Expiration.
This Agreement shall become effective as of the Effective Date and shall
continue in perpetuity unless all licenses under Section 2 have terminated
pursuant to Section 4.02.
Section 4.02. Termination of Licenses.
A party may terminate any right or license granted by it in Section 2 of
this Agreement, other than Section 2.03, if the party to whom it has granted
such right or license (the "Licensed Party") or any of the Licensed Party's
Affiliates has materially breached any of the Related Instruments; provided that
the terminating party has provided written notice of such breach or failure to
satisfy, as applicable, to the Licensed Party and the Licensed Party has failed
to cure such breach or failure to satisfy within sixty (60) days of receipt of
such notice. Any termination pursuant to the proceeding sentence shall become
effective immediately upon written notice to the Licensed Party of the
occurrence of the conditions for such termination. The right of each party to
terminate this Agreement as provided in this Section 4.02 shall not be affected
in any way by such party's or any other party's waiver, delay or failure to take
action with respect to any default by a Licensed Party.
Section 4.03. Effect of Termination of a License.
Upon the termination by a party of any license granted by it to a Licensed
Party pursuant to Section 4.02, in addition to any other remedies available to
such terminating party at law or in equity, (a) such Licensed Party shall
promptly cease use of such licensed intellectual property and transfer to such
party copies of all data, reports, records and materials in such Licensed
Party's possession or control that relate to research, development and
commercialization of the intellectual property licensed to such Licensed Party
and return to such party all relevant records and materials in such Licensed
Party's possession or control containing confidential information of such party
(provided that such Licensed Party may keep one copy of such confidential
information of such party for archival purposes only); and (b) all sublicenses
granted by such Licensed Party under such terminated right or license shall
terminate.
Section 4.04. Accrued Rights; Surviving Obligations.
(a) Termination of this Agreement shall be without prejudice to any
rights which shall have accrued to the benefit of any party prior to such
termination. Such termination shall not relieve any party from obligations that
are expressly indicated to survive termination of this Agreement.
(b) All of the parties' rights and obligations under this Section
4.04 and Section 5 shall survive termination of this Agreement.
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SECTION 5.
CONFIDENTIALITY
Section 5.01. Generally.
Each party acknowledges that it will receive Confidential Information of
one or more of the other parties pursuant to this Agreement. Each party shall
(a) safeguard and hold any Confidential Information received by it from any
other party in confidence, except to the extent required in connection with the
permitted exploitation of such Confidential Information in accordance with this
Agreement, and (b) limit disclosure of such Confidential Information to those
directors, employees, agents and representatives with a need to know in
connection with the permitted exploitation of such information in accordance
with this Agreement and who are bound by obligations of confidentiality at least
as stringent as those set forth herein. No party shall, directly or indirectly,
disclose, publish or use the Confidential Information of another party for the
benefit of any third party or itself, except to the extent permitted by Section
5.02. "Confidential Information" shall include Know-How, scientific information,
clinical data, efficacy and safety data, adverse event information, formulas,
methods and processes, specifications, pricing information (including discounts,
rebates and other price adjustments) and other terms and conditions of sales,
customer information, business plans, and all other intellectual property, but
shall not include the following:
(a) information that is known to the receiving party prior to the
time of disclosure of it, to the extent evidenced by written records or other
competent proof;
(b) information that is independently developed by employees, agents
or independent contractors of the receiving party or its Affiliates without
reference to or reliance upon the information furnished by the disclosing party,
as evidenced by written records or other competent proof;
(c) information disclosed to the receiving party or its Affiliates by
a third party that has a right to make such disclosure; or
(d) any other information that becomes part of the public domain
through no fault or negligence of the receiving party.
Section 5.02. Permitted Disclosures.
A party shall be entitled to disclose another party's Confidential
Information (a) as required to be disclosed in compliance with applicable laws,
including to comply with Securities and Exchange Commission (New York Stock
Exchange or other stock exchange disclosure requirements), or by order of any
governmental body or court of competent jurisdiction, (b) as may be necessary or
appropriate in connection with the enforcement of this Agreement or (c) as may
be necessary in connection with the permitted exploitation of such Confidential
Information in accordance with this Agreement; provided, that, the party
disclosing another party's Confidential Information pursuant to this Section
5.02 shall promptly notify such other party and shall use commercially
reasonable efforts to obtain confidential treatment of such Confidential
Information by the Person to whom such information is to be disclosed; provided,
further, that, in the case of disclosure by a party of another party's
Confidential Information pursuant to clause (a) above, such party shall (y)
provide such other party with prompt prior notice of the proposed disclosure so
that such other party may seek a protective order or other appropriate remedy,
and (z) provide such other party with a copy of the proposed disclosure in
sufficient time to allow reasonable opportunity to comment thereon.
Section 5.03. Confidentiality Agreement.
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The confidentiality obligations set forth in this Section 5 shall supercede
the confidentiality obligations set forth in the certain Confidentiality
Agreement dated February 18, 2002, among Purchaser, Xxxxxxxx and BMS.
SECTION 6.
MISCELLANEOUS
Section 6.01. Assignment.
Neither this Agreement nor any right, interest or obligation hereunder may
be assigned by any party hereto without the prior written consent of the other
parties hereto, and any attempt to do so will be null and void; provided,
however, that Purchaser may: (i) assign its rights and obligations to the
successor in interest to its business or a purchaser of all or substantially all
of its assets, and (ii) pledge and grant a security interest in any of
Purchaser's rights and interests in the Acquired Assets and the Business,
including under this Agreement.
Section 6.02. Non-Waiver.
Any failure on the part of a party to enforce at any time or for any period
of time any of the provisions of this Agreement shall not be deemed or construed
to be a waiver of such provisions or of any right of such party thereafter to
enforce each and every such provision on any succeeding occasion or breach
thereof.
Section 6.03. Entirety of Agreement.
This Agreement, the Related Agreements and the Schedules and Exhibits
hereto and thereto, contain the entire agreement and understanding among the
parties hereto with respect to the subject matter hereof and supersede all prior
agreements and understandings relating to such subject matter. No party shall be
liable or bound to any other party in any manner by any representations,
warranties or covenants relating to such subject matter except as specifically
set forth herein or in the Related Agreements.
Section 6.04. Public Announcements.
The form and content of any public announcement to be made by a party
regarding this Agreement, or the subject matter contained herein, shall be
subject to the prior written consent of the other parties (which consent may not
be unreasonably withheld), except as may be required by applicable law
(including disclosure requirements of the Securities and Exchange Commission,
the New York Stock Exchange, or any other stock exchange) in which event the
disclosing party shall use commercially reasonable efforts to give the other
parties reasonable advance notice and reasonable opportunity to review any such
disclosure.
Section 6.05. Relationship of the Parties.
In making and performing this Agreement, the parties are acting, and intend
to be treated, as independent entities and nothing contained in this Agreement
shall be construed or implied to create an agency, partnership, joint venture,
or employer and employee relationship between or among any of the parties.
Except as otherwise provided herein, no party may make any representation,
warranty or commitment, whether express or implied, on behalf of or incur any
charges or expenses for or in the name of any other party. No party shall be
liable for the act of any other party unless such act is expressly authorized in
writing by such party.
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Section 6.06. Counterparts.
This Agreement may be executed in one or more counterparts, all of which
shall be considered one and the same agreement, and shall become effective when
one or more such counterparts have been signed by each of the parties and
delivered to the other parties.
Section 6.07. Severability.
In the event that any one or more of the provisions contained herein, or
the application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the parties shall negotiate in good
faith with a view to the substitution therefor of a suitable and equitable
solution in order to carry out, so far as may be valid and enforceable, the
intent and purpose of such invalid provision; provided, however, that the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be in any way
impaired thereby, it being intended that all of the rights and privileges of the
parties hereto shall be enforceable to the fullest extent permitted by law.
Section 6.08. Expenses.
Each party shall bear its own direct and indirect expenses incurred in
connection with the negotiation and preparation of this Agreement and, except as
set forth in this Agreement, the performance of the obligations contemplated
hereby and thereby.
Section 6.09. Descriptive Headings.
The descriptive headings herein are inserted for convenience only and are
not intended to be part of or to affect the meaning or interpretation of this
Agreement.
Section 6.10. Amendments and Waivers.
This Agreement may not be amended except by an instrument in writing signed
on behalf of each of the parties. By an instrument in writing, any party may
waive compliance by any other party with any term or provision of this Agreement
that such other party was or is obligated to comply with or perform.
Section 6.11. Injunctive Relief.
Each of the parties hereto agrees that if Section 5 of this Agreement is
not performed in accordance with its specific terms, (a) severe and irreparable
damage would occur, (b) no adequate remedy at law would exist and (c) damages
would be difficult to determine. Each of the parties agrees that, in such case,
the injured party shall be authorized and entitled to obtain from any court of
competent jurisdiction injunctive relief, whether preliminary or permanent, as
well as any other relief permitted by applicable law, and the breaching party
shall waive any requirement that such party post bond as a condition for
obtaining any such relief.
Section 6.12. Dispute Resolution.
The parties recognize that a bona fide dispute as to certain matters may
from time to time arise during the term which relates to either party's rights
and/or obligations hereunder. Except as otherwise provided by Section 6.11 with
respect to disputes regarding Section 5 of this Agreement, in the event of the
occurrence of such a dispute, either party may, by notice to the other party,
have such dispute referred to their respective officers designated below, or
their successors, for attempted resolution by good faith
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negotiations within thirty (30) days after such notice is received. Such
designated officers are as follows:
For Purchaser: Xxxxxx X. Xxxxxx, President and CEO
For BMS: Xxxxxxx Xxxxxxx, Vice President and Senior Counsel,
Pharmaceutical Research Institute and External Development
For Xxxxxxxx: Xxxxxxx Xxxxxxx, Senior Vice President and General Counsel
In the event the designated officers are not able to resolve such dispute
within such thirty (30) day period, or such other period of time as the parties
may mutually agree in writing, the parties agree to have the dispute finally
settled by arbitration in accordance with the Commercial Arbitration Rules of
the American Arbitration Association. The arbitration shall be governed by the
United States Arbitration Act, 9 U.S.C. (S)(S)1-16, 201-208. The arbitration
shall be held in New York City. The arbitration proceedings shall be conducted,
and the award shall be rendered, in the English language. If the dispute is
between any of BMS or Xxxxxxxx, on the one hand, and Purchaser, on the other
hand, BMS and/or Xxxxxxxx, as applicable, shall jointly select one (1)
arbitrator and Purchaser shall select one (1) arbitrator, who, in each case,
shall be an experienced lawyer and fluent in English. If the dispute is between
only two (2) of the three (3) parties, each party shall select one (1)
arbitrator who shall be an experienced lawyer and fluent in English. The
arbitrators selected by the parties shall select a third arbitrator from among
arbitrators designated by the American Arbitration Association.
Section 6.13. Governing Law.
All questions concerning the construction, validity, enforcement and
interpretation of this Agreement shall be governed by the internal laws of the
State of New York, without giving effect to any choice the law or conflict of
law provision or rule (whether of the State of New York or any other
jurisdictions) that would cause the application of the laws of any jurisdiction
other than the State of New York.
Section 6.14. Successors and Assigns.
This Agreement shall be binding upon and inure solely to the benefit of the
parties hereto, their successors and permitted assigns, and nothing in this
Agreement, express or implied, is intended to or shall confer upon any other
Person or Persons any right, benefits or remedies of any nature whatsoever under
or by reason of this Agreement.
Section 6.15. Waiver of Jury Trial.
EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS AGREEMENT OR ANY RELATED INSTRUMENT. EACH PARTY HERETO (A) CERTIFIES THAT
NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THAT FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND
THE RELATED INSTRUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION 6.15.
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IN WITNESS WHEREOF, the parties have executed this License Agreement as of
the day and year first above written.
XXX XXXXXXXX XXXXXXX
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Deputy General Counsel and Assistant
Secretary, as Attorney-in-Fact
XXXXXXX-XXXXX SQUIBB COMPANY
By: /s/ Xxxxxx X. Xxxxx, Xx.
--------------------------------------------
Name: Xxxxxx X. Xxxxx, Xx.
Title: Vice President, Corporate Development
WOMEN FIRST HEALTHCARE, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Chief Financial Officer
