1 EXHIBIT 10.37
CONFIDENTIAL TREATMENT REQUESTED UNDER 17 C.F.R. SECTIONS 200.80(B)(4),200.83
AND 240.24B-2. "***" INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A
CONFIDENTIAL TREATMENT REQUEST THAT HAS BEEN FILED SEPARATELY WITH THE SECRETARY
OF THE COMMISSION.
COLLABORATION AGREEMENT
BETWEEN
CYTOVIA, INC.
AND
AURORA BIOSCIENCES CORPORATION
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COLLABORATION AGREEMENT
This COLLABORATION AGREEMENT (the "Agreement"), is entered into as of the
Effective Date (defined below), by and between Aurora Biosciences Corporation,
a Delaware corporation, having a principal place of business at 00000 Xxxxxxxxx
Xxxx, Xxx Xxxxx, Xxxxxxxxxx 00000 ("Aurora"), and Cytovia, Inc., having a
principal place of business at 000 Xxxxxxxxxx Xxxxx, Xxxxxx XX 00000
"Cytovia").
BACKGROUND
WHEREAS, Aurora designs, develops, and manufactures automation, instruments and
fluorescent assay technologies which it may use for accelerated drug discovery;
WHEREAS, Cytovia develops cellular assays using its proprietary fluorogenic
substrates for the discovery of drugs to be developed by Cytovia,
WHEREAS, Aurora and Cytovia desire to enter into a collaborative research and
development program to develop screens and use such screens to identify
compounds having biological activity; all in accordance with the terms and
conditions set forth below.
NOW, THEREFORE, Aurora and Cytovia agree as follows:
ARTICLE 1. DEFINITIONS
The following terms shall have the meanings provided below when used herein:
1.1 "Affiliate" shall mean a person or entity, other than an entity
jointly owned or controlled by the parties, that directly or indirectly
controls, is controlled by, or is under common control with the person or
entity specified. For purposes of this definition, "control" means the
direct or indirect ownership of greater than fifty percent (50%) of the
outstanding shares or other voting rights of the specified entity to elect
directors or other management authority, or if not meeting the preceding,
that level of control which is the maximum ownership right permitted in
the jurisdiction where such entity exists.
1.2 "Agency" shall mean the U.S. Food and Drug Administration ("FDA") or
its successor, or an equivalent agency of any other government of another
country having jurisdiction over the development, manufacturing, and/or
marketing of pharmaceutical products.
1.3 "Agreement Compound" shall mean ***.
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1.4 "Annual Screening Program" shall have the meaning set forth in
Section 2.4.2.
1.5 "Aurora Compound" shall mean ***
1.6 "Aurora Know-How" shall mean ***.
1.7 "Aurora Patents" shall mean Patent Rights owned, licensed or
Controlled by Aurora (including its Affiliates, Licensors or its
Licensees) which relate to Compounds, Agreement Compounds, Products or
Screens ***.
1.8 "Aurora Technology" shall mean Aurora Patents and Aurora Know-How.
1.9 "Collaboration Committee" or "CC" shall have the meaning set forth
in Section 2.1.
1.10 "Collaboration Period" shall begin on the Effective Date and ***.
1.11 "Compound" shall mean ***.
1.12 "Compound Library and Database Program" or ("CLDP") and ***is
defined in Exhibit B.
1.13 "Confidential Information" shall mean information or material
disclosed hereunder by one party (the "Disclosing Party") to the other
party (the "Receiving Party") and as further defined in Section 9.1.
1.14 "Control" or "Controlled" shall mean, with respect to Intellectual
Property, possession by a party or its Affiliates of the ability to grant
a license or sublicense in accordance with the terms of this Agreement,
and without violating the terms of any agreement by such party with a
Third Party.
1.15 "CPI" shall mean the Consumer Price Index, All Urban Consumers, as
published by the U.S. Bureau of Labor Statistics.
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1.16 "Cytovia Collaborator" shall mean ***.
1.17 "Cytovia Compound" shall mean ***.
1.18 "Cytovia Know-How" shall mean ***.
1.19 "Cytovia Patent Rights" shall mean Patent Rights owned, licensed or
Controlled by Cytovia (including its Affiliates, Licensors or its
Licensees)***.
1.20 "Cytovia Technology" shall mean ***.
1.21 "***
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1.22 "Development Candidate" shall mean a ***.
1.23 "Excluded Compound" shall mean ***.
1.24 "Full Time Equivalent" or "FTE" shall mean the full time equivalent
of one (1) Aurora researcher, based on a minimum of one thousand seven
hundred sixty (1,760) hours per year.
1.25 "Hit" shall ***.
1.26 "Intellectual Property" means any a) information or data,
techniques, methods, trade secrets, results, tangible or intangible know-
how, or chemical, biological or physical materials that is not generally
known to the public, b) world-wide copyrights, and c) patent rights.
1.27 "Joint Technology" shall have the meaning set forth in Section 8.3.
1.28 "Licensee" shall mean any Third Party (other than an Affiliate of
Cytovia or Aurora) which is granted a license, sublicense or other right
to manufacture, use, sell, offer for sale, distribute and/or import one or
more Products or Agreement Compounds.
1.29 "Licensor" shall mean any Third Party that grants a license,
sublicense or other right to manufacture, use, sell, offer for sale,
distribute and/or import one or more Products or Compounds.
1.30 "NDA" shall mean a New Drug Application ("NDA"), Biologics License
Application ("BLA") or Product License Application ("PLA"), as defined in
the U.S. Food, Drug, and Cosmetic Act and the regulations promulgated
thereunder, or any equivalent foreign application.
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1.31 "Net Royalty" shall mean all consideration, including without
limitation, ***, received by Cytovia, from an Affiliate, a Third Party,
Cytovia Collaborator, or Licensee in respect of the sale or other
distribution of any Product. Net Royalty excludes milestone payments or
any amounts received by Cytovia which do not accrue upon the sale or
distribution of any Product, such as a loan, purchase of equity, or
support for research and development activity for such Product.
1.32 "Net Sales" shall mean the invoice price of Products, as the case
may be, sold by Cytovia or its Affiliates, Cytovia Collaborators, or
Licensees to bona fide independent Third Parties in arm's length
transactions, less, to the extent included in such invoice price the total
of: (i) ordinary and customary trade discounts actually allowed; (ii)
credits, rebates and returns(including, but not limited to, wholesaler and
retailer returns); (iii) freight, postage and duties paid for and
separately identified on the invoice or other documentation maintained in
the ordinary course of business, and (iv) excise taxes, other consumption
taxes, customs duties and compulsory payments to governmental authorities
actually paid and separately identified on the invoice or other
documentation maintained in the ordinary course of business. Net Sales
shall also include the amount or fair market value of all other
consideration received by Cytovia or its Affiliates, Cytovia
Collaborators, or Licensees which accrues upon the sale or other
distribution of Products, as the case may be, whether such consideration
is in cash, payment in kind, exchange or another form.
1.33 "Non-exclusive Compounds" means a single set of ***by Aurora
during the Collaboration Period wherein each compound in such set ***.
1.34 "Patent Rights" shall mean all U.S. or foreign jurisdiction
(including the European Patent Convention) patent applications, including
any regular, or provisional applications and any continuation (in whole or
in part), division, or substitute thereof, and any patent issuing thereon,
including any reissue, re-examination, or extension thereof or any
equivalent of any of the foregoing.
1.35 "Phase I," "Phase II," and "Phase III" shall mean Phase I, Phase II,
or Phase III human clinical trials of a pharmaceutical product,
respectively, in each case as customarily related to applicable FDA
Investigational New Drug ("IND") regulations, or any equivalent or
corresponding foreign statutes, rules, or regulations.
1.36 "Product" shall mean ***.
1.37 "Screen" shall mean an ***.
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1.38 ***
1.39 ***
1.40 "Term" shall have the meaning set forth in Section 12.1.
1.41 "Third Party" shall mean any person or entity other than (i) Aurora
and any of its Affiliates, and (ii) Cytovia and any of its Affiliates.
1.42 "Tracking Records" shall have the meaning set forth in Section
5.2.5.
1.43 "Valid Claim" shall mean (a) an issued claim under an issued patent
within the Patent Rights, which has not (i) expired or been canceled, (ii)
been declared invalid by an unreversed and unappealable decision of a
court or other appropriate body of competent jurisdiction, (iii) been
admitted to be invalid or unenforceable through reissue, disclaimer or
otherwise, and/or (iv) been abandoned; or (b) a claim included in a
pending patent application within the Patent Rights that is being actively
prosecuted in accordance with this Agreement and which has not been (i)
canceled, (ii) withdrawn from consideration, (iii) finally determined to
be unallowable by the applicable governmental authority for whatever
reason (and from which no appeal is or can be taken), and/or (iv)
abandoned.
1.44 ***
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ARTICLE 2. SCREENING PROGRAM
2.1 Collaboration Committee.
2.1.1 Responsibilities. Within thirty (30) days after the Effective
Date, Aurora and Cytovia shall establish a committee (the "Collaboration
Committee" or "CC"), to review and coordinate the Screening Programs
pursuant to Article 2.
2.1.2 Membership. The CC shall be comprised of ***from Cytovia and ***
from Aurora. Each party may select and replace its CC representatives at
any time, with written notice to the other party. Each party shall each
appoint one of its CC representatives to be responsible for coordinating
communications between the parties.
2.1.3 Meetings. During the Collaboration Period, the CC shall meet at
least quarterly, or more often as mutually agreed, in person, by telephone
or televideo conference. Each party shall pay its own expenses incurred
in connection with participation at CC meetings. With the consent of the
parties, other representatives of Cytovia and/or Aurora may attend CC
meetings as nonvoting observers. On an alternating basis, one party shall
promptly prepare and deliver to the members of the CC minutes in respect
thereof, for review and approval by both parties.
2.1.4 CC Decisions. Decisions of the CC shall be made by simple
majority approval of all CC members. In the event that approval is not
obtained within the CC, the undecided matter will be referred to a
Business Development officer of each party, who shall promptly meet in
person or by telephone or by televideo conference to endeavor to resolve
the dispute. In the event such individuals are unable to resolve such
dispute within thirty (30) days, the matter shall be referred to the Chief
Executive Officers or equivalent of the parties, who shall promptly meet
in person or by televideo conference within thirty (30) days after such
dispute is submitted to such officer, to endeavor to resolve the dispute.
If such officers are unable to resolve the dispute in a timely manner, at
the request of either party, it shall be settled by binding arbitration
pursuant to Section 13.2 below, or as otherwise mutually agreed in writing.
2.2 Screen Proposals and Selection. During ***the Collaboration Period, ***,
as defined Section 2.4. ***, Cytovia will ***identified by Cytovia relating to
such Screen. In performing its obligations under the foregoing sentence***.
Within thirty (30) days of receiving such information, and further information
as Aurora may reasonably request regarding a proposed Screen, (i) the CC will
meet to review whether the CC reasonably believes that it is ***feasible to use
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the Screen in an Annual Screening Program and (ii) Aurora shall notify Cytovia
in writing whether Aurora reasonably believes that Aurora is ***feasible to
work with such Screen. Aurora may determine that performing a Screen may not be
legally feasible for *** Aurora being subject to conflicting obligations under
this Agreement and another then existing agreement with a Third Party. If the
CC determines that it is feasible to use a Screen developed by Cytovia, ***,
the CC will develop a written plan for such Screen ("Screen Work Plan")
containing a complete description of the Screen, delivery schedule, screening
plan, and the screening schedule. If the CC does not determine that it is
feasible to use the Screen, it shall notify Cytovia in writing thereof, and in
such case Aurora shall have no obligation to use such Screen.
2.3 Screen Delivery and Cytovia ***. Promptly after development of a
Screen Work Plan, Cytovia will deliver to Aurora such Screen as set forth in
the appropriate Screen Work Plan. Such Screen will be delivered with a
written summary describing the Screen and data indicating that such Screen
satisfies the Screen Specifications and the applicable provisions of the Screen
Work Plan.
2.4 Screening Services and Aurora ***
2.4.1 ***
2.4.2 ***
2.4.3 ***
2.4.4 CLDP Selection and Upgrade. At least thirty (30) days prior to
commencement of the Annual Screening Program, Cytovia shall notify Aurora
in writing of the CLDP Cytovia has selected for use in the Annual
Screening Program for a particular Screen. Following commencement of the
Annual Screening Program, the CLDP for the Annual Screening Program may be
upgraded as follows.
(i) ***
(ii) ***
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Requests for such CLDP upgrades shall be submitted in writing by Cytovia
to Aurora. With respect to the payments in Section 5.2.1, the terms and
conditions for the highest CLDP level selected for an Annual Screening
Program shall apply to all Aurora Compounds used in such Annual Screening
Program.
2.4.5 Screening Program Reports. During the course of the Annual
Screening Program, individuals from Cytovia and Aurora, appointed by the
CC, will discuss and review monthly, if not more frequently, the progress
and any issues relating to the Annual Screening Program. During the
Collaboration Period, the CC will review and prepare quarterly reports for
the Annual Screening Program in progress at that time. Each progress
report shall provide a written update of work performed, any Hits
identified, and all available supporting data.
2.4.6 Screening Database Access and Maintenance. For a period of
***following completion of each Annual Screening Program, Aurora will
maintain all data generated in such Annual Screening Program and Cytovia
may have access to such data subject to the terms of the CLDP selected for
such Annual Screening Program. All data provided by Aurora to Cytovia will
be transferred electronically.
2.4.7 Optional Screening Services. During the Collaboration Period,
Cytovia may purchase from Aurora optional screening services to provide
(i) additional data points from the Screen used in the Annual Screening
Program, (ii) screening services for additional screens, or (iii)
development services beyond those included in the Annual Screening
Program. The fees for such optional screening services will be negotiated
in good faith by the parties.
2.4.8 Credit for Unused Screening Services. If during the course of an
Annual Screening Program, Cytovia elects to end the screening process
before ***. Unless mutually agreed to in writing by the parties, ***.
2.4.9 Exclusion of Aurora Compounds. The use of an Aurora Compound
and data associated with such Aurora Compound may ***.
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2.4.10 Designation of Excluded Compounds. At least ***days prior to
commencement of each Annual Screening Program, Cytovia ***
2.5 Payments for Screening Services.
2.5.1 Funding for Annual Screening Program. In consideration for the ***.
The first payment shall be made within ***of the Effective Date, and
subsequent payments shall be paid to Aurora no later than the first day of
the second month of the calendar quarter to which such payment pertains.
Cytovia will have responsibility for paying for any associated sales, use,
value added, or transfer tax, or similar governmental charge if any, but
not taxes based on net income or profit.
2.5.2 Funding for Additional Screens. If Aurora determines, in good
faith, that the expenses that would be incurred by Aurora ***for an Annual
Screening Program, ***, and in such event the parties shall in good faith
determine the *** for the applicable screening and development activities.
*** shall be calculated based on the number of additional FTEs required to
complete the Annual Screening Program, and the duration of the additional
FTEs' participation in such activities. The fully burdened FTE rate for
each Aurora scientist shall be ***per FTE per year. Such amount shall be
***. In addition, Aurora reserves the right ***.
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ARTICLE 3. DEVELOPMENT AND COMMERCIALIZATION
The selection of Agreement Compound(s), Development Candidate(s), and
Product(s) for development and commercialization will be at the discretion of
Cytovia. Cytovia will, at no expense to Aurora, be responsible for conducting
or arranging all development and commercialization of such selected Agreement
Compound(s) Development Candidate(s) and Product(s)that Cytovia, at its
discretion, chooses to develop and commercialize. Cytovia, its Affiliates,
Cytovia Collaborators or Licensees will ***, or have its Affiliates, Cytovia
Collaborators or its Licensees *** meet the market demand therefor. Cytovia
will promptly notify Aurora at such time as any Agreement Compound becomes a
Development Candidate, or otherwise achieves any milestone for which Cytovia
will owe Aurora a milestone payment pursuant to Section 5.1. Cytovia agrees to
provide Aurora with a written summary of the development progress made in
respect of an Agreement Compound(s), Development Candidate(s), and Product(s)
within thirty (30) days of the end of each calendar quarter during the period
in which an Agreement Compound(s), Development Candidate(s), and Product(s) is
under development by Cytovia (or its designee).
ARTICLE 4. LICENSES
4.1 License to Aurora. Cytovia hereby grants to Aurora, ***.
4.2 No Implied Licenses and Grant Backs. Only those licenses expressly granted
in Section 4.1 and Article 8 shall be of any force and effect. No license or
other right in the Aurora Technology or Cytovia Technology shall be created
hereunder by implication, estoppel, or otherwise.
ARTICLE 5. MILESTONES AND ROYALTIES
5.1 Milestone Payments. Cytovia will pay to Aurora the following amounts
upon achievement of each of the following milestone events by Cytovia,
***Screen to have ***.
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Milestone Events Per Screen: Payment
*** ***
Milestone Events Per Compound:
*** ***
*** ***
*** ***
*** ***
Cytovia will notify Aurora in writing and pay Aurora the appropriate amounts
set forth in this Section 5.1, within ***of the achievement of a milestone, or,
in the case of a Third Party achieving a milestone, within the earlier of a)
***of Cytovia receiving notification from a Third Party of the achievement of a
milestone set forth in this Section 5.1 or b) ***of Cytovia receiving payment
from a Third Party for the achievement of such milestone. If in the course of
compound development any of the above milestones are combined or skipped,
Aurora will receive the above milestone payments as if each milestone were
initiated separately or completed separately.
5.2 Royalties to Aurora. ***, Cytovia shall pay Aurora a royalty ***. Sales of
any products that contain Excluded Compounds and do not contain any Products
shall ***.
5.2.1 Sales of Products derived from Aurora Compounds. With respect to
Product(s) containing Aurora Compounds or Derivatives thereof pursuant to
the Compound Library Database Program selected in accordance with Section
2.4.3, Cytovia shall pay Aurora an amount equal to
(i) ***,
(ii) ***, and
(iii) ***.
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5.2.2. Sales of Products ***. With respect to Product(s) ***Compounds or
Derivatives thereof, Cytovia shall pay Aurora an amount equal to ***of
such Products if the Product is marketed by ***if the Product is marketed
by an ***; provided, however, that such amount payable to Aurora pursuant
to this Section 5.2.2 shall not be less *** of such Product(s).
5.2.3 Trade Secret Royalty. The parties acknowledge that the principal
value contributed by Aurora under this Agreement is the enhanced
probability of identifying leads for human pharmaceutical products (or
other products having commercial value) and the potential to generate
multiple leads, either or both of which the parties reasonably believe
will lessen the time required to bring pharmaceutical products to market
and increase the efficiency of drug discovery and development processes
and technologies. Additionally, the parties acknowledge that Aurora may
not own or control Patent Rights covering the manufacture, sale, use, or
importation of a particular Agreement Compound or Product. Cytovia
acknowledges and agrees that the value it receives hereunder is primarily
in the access and use of the Aurora Compounds and the Aurora Technology.
Accordingly, Cytovia agrees to pay those royalties and other amounts at
the applicable rate specified in this Section 5.2, regardless of whether
a Product is covered by Patent Rights within the Aurora Technology.
5.2.4 Royalty Term. Cytovia's obligation to pay royalties to Aurora
pursuant to this Section 5.2 shall continue on a Product-by-Product and
country-by-country basis until *** after the date of the first commercial
sale of such Product in a particular country by Cytovia, its Affiliates,
designees, Cytovia Collaborators or Licensees.
5.2.5 Tracking Records for Royalty Obligations. Records of any Hits or any
Compound subject to additional screening will be stored by Cytovia in a
computer searchable file or database that may be separate from other
Cytovia data not related to Screens. Such records or information from a
Screen will be recorded and stored by Cytovia using its customary means
and in a computer searchable database on a storage device. The information
stored will include ***tested, and date of testing. Upon written request
by Aurora, Cytovia will create an annual written report of Hits or
Derivatives subjected to additional screening, in vivo testing, computer
modeling, medicinal chemistry or an Investigational New Drug application
or foreign equivalent to date to be accessible by an independent
consultant of Aurora. All the records described in this Section 5.2.5 are
collectively referred to as tracking records (the "Tracking Records").
Cytovia will permit a Third Party appointed by Aurora and Cytovia, and
subject to a confidential relationship with Cytovia, to inspect the
Tracking Records once per year or upon reasonable request for the sole
purpose of determining the attainment of a milestone or royalty under this
Agreement. The Tracking Records shall be securely retained for no less
than ***from the last use of a Screen. When a compound, such as a Hit or
Derivative is selected for ***, Cytovia will disclose this compound to
Aurora and such information shall be Cytovia's Confidential Information
for the purpose of Article 9. In addition, Cytovia will make reasonable
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efforts to obligate its Affiliates, designees, Cytovia Collaborators or
Licensees to a provision substantially the same as this provision in this
Section 5.2.5 with respect to Cytovia and wherein such party will grant
access to Aurora in event Cytovia is unable to access such Tracking
Records. Upon reasonable request by Aurora and at a minimum once per year,
Cytovia will provide Aurora with a summary of the status of Agreement
Compounds and Products that may be used to calculate royalties or
milestones.
5.2.6 Payment of Royalties. Cytovia will notify Aurora in writing and pay
Aurora the appropriate amounts set forth in this Section 5.2, (a) within
***of receipt of ***by Cytovia, (b) within ***of Cytovia receiving
royalties from a Third Party for the of receipt of ***, or (c) if Cytovia
is not due any royalties, within ***of Cytovia receiving notification from
a Third Party of the receipt of ***.
5.3 Payment of Milestones and Royalties in the Event of Bankruptcy. Cytovia
shall contractually obligate its Affiliates, designees, Cytovia Collaborators
or Licensees so that in the event of bankruptcy by Cytovia such parties will
either a) pay milestones directly to Aurora pursuant to Section 5.1 and pay
royalties directly to Aurora pursuant to Section 5.2 or b) terminate all rights
and activities under any agreement relating to the development and
commercialization of Agreement Compounds or Products as permitted under this
Agreement.
5.4 Exemptions from Milestones and Royalties. Notwithstanding any other
provision of this Agreement, Cytovia shall not be obligated to make any
milestone payment or royalty payment with respect to products ***.
ARTICLE 6. INVESTMENT AND SCREENING REFERRALS
6.1 Aurora Contribution. Within ***of the Effective Date, Aurora will ***.
6.2 Screening Referrals. For a period of ***following the Effective Date,
Cytovia will xxxxx Xxxxxx a ***
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ARTICLE 7. PAYMENTS; BOOKS AND RECORDS
7.1 Royalty Reports. After the first commercial sale of a Product on which
royalties are payable hereunder to Aurora by Cytovia, Cytovia shall make
quarterly written reports to Aurora within *** after the end of each calendar
quarter or ***from the receipt of such information from a Third Party, stating
in each such report, on a country-by-country basis, the number, description,
and *** of each Product sold in a country during the calendar quarter upon
which a royalty is payable under Section 5.2 above.
7.2 Screen Development and Screening Payments. Any payments due pursuant to
Section 2.5 shall be paid within thirty (30) days of receipt of an invoice
therefor. Any payments due pursuant to Section 5.1 shall be paid as provided in
that Section 5.1. Any payments due pursuant to Section 5.2 shall be paid as
provided in that Section 5.2.
7.3 Payment Method. All payments due under this Agreement shall be made by
bank wire transfer when due in immediately available funds to an account
designated by Aurora. Any payments that are not paid on the date such payments
are due under this Agreement shall bear interest to the extent permitted by
applicable law at the lesser of the prime rate as reported by the ***, on the
date such payment is due, plus an additional *** per annum, or the maximum rate
allowed by law, calculated on the number of days such payment is delinquent.
7.4 Currency Conversion. All payments outlined in this Agreement are in U.S.
Dollars. If any currency conversion shall be required in connection with the
calculation of royalties or any other payments hereunder, such conversion shall
be made using the selling exchange rate for conversion of the foreign currency
into U.S. Dollars, quoted for current transactions as reported in The Wall
Street Journal for the last reported day of the calendar quarter to which such
payment pertains.
7.5 Records; Inspection. Cytovia and its Affiliates shall keep complete,
true, and accurate books of account and records for the purpose of determining
the royalty amounts payable under this Agreement. Such books and records shall
be kept at the principal place of business of such party for at least
***following the end of the calendar quarter to which they pertain. Such
records will be open for inspection during such ***period by an accounting firm
appointed by Aurora that is reasonably acceptable to Cytovia or its Affiliates.
Such inspections may be made no more than once each calendar year, at
reasonable times and on reasonable notice. Inspections conducted under this
Section 7.5 shall be at the expense of Aurora, unless a variation or error
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producing an increase exceeding ***of the amount stated for any period covered
by the inspection is established in the course of any such inspection,
whereupon all costs relating to the inspection for such period and any unpaid
amounts that are discovered will be paid promptly by Cytovia, together with
interest thereon from the date such payments were due at the lesser of the
prime rate as reported by the ***, plus an additional ***per annum, or the
maximum allowed by law.
7.6 Tax Matters. All royalty amounts required to be paid to Aurora pursuant
to this Agreement shall be paid without deduction for withholding for or on
account of any taxes, including any sales, use, value added, or transfer tax,
or similar governmental charge imposed by a jurisdiction other than the United
States but exclusive of taxes based on net income or profits. Payment of any
such tax or similar governmental charge, including any due in connection with
the transfer of the Screens hereunder, shall be the sole responsibility of
Cytovia. In the event that Aurora is required to pay any such tax or other
similar charge, Cytovia shall promptly reimburse Aurora for payment of such
amounts.
ARTICLE 8. INTELLECTUAL PROPERTY
8.1 Cytovia Sole Ownership. Cytovia shall be the sole owner of any
Intellectual Property conceived and reduced to practice or otherwise developed
solely by its employees, consultants and agents, and all patent applications
and patents claiming such Intellectual Property; provided, however, that
Intellectual Property that covers *** will be assigned by Cytovia to Aurora***
8.2 Aurora Sole Ownership. Aurora shall be the sole owner of any Intellectual
Property conceived and reduced to practice or otherwise developed solely by its
employees, consultants and agents and all patent applications and patents
claiming such Intellectual Property; provided, however, that Intellectual
Property that ***
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8.3 Joint Technology.
8.3.1 Joint Ownership. If, during the Collaboration Period, one or
more employees or consultants of Aurora, together with one or more
employees or consultants of Cytovia, jointly conceive or reduce to
practice any Intellectual Property, (the "Joint Technology"), each
of the parties shall ***the Joint Technology, except as set forth
herein.
8.3.2 Joint Technology Assigned to Aurora. Cytovia will assign to
Aurora Cytovia's interest in all Joint Technology *** provided,
however, that Cytovia shall retain thereto a non-exclusive,
worldwide, royalty-free license, without the right to grant
sublicenses, to such Intellectual Property ***.
8.3.3 Joint Technology Assigned to Cytovia. Aurora will assign to
Cytovia Aurora's interest in all Joint Technology ***; provided,
however, that Aurora shall retain thereto a non-exclusive,
worldwide, royalty-free license, without the right to grant
sublicenses, to such Intellectual Property ***.
8.4 Additional Licenses. The parties recognize and agree, that (i) in some
instances the practice of Joint Technology licensed in either Section 8.3.2 or
8.3.3, may require additional license(s) under Aurora Technology or Cytovia
Technology, respectively, such as for Technology that was developed outside the
scope of this Agreement; and (ii) in some instances that the practice of non-
exclusively licensed Technology in Sections 8.1 and 8.2 may require additional
license(s) under Aurora Technology or Cytovia Technology, respectively, such as
for Technology that was developed outside the scope of this Agreement.
8.5 U.S. Law. Inventorship and rights of ownership with respect to Aurora
Technology, Cytovia Technology, and Joint Technology shall be determined in
accordance with the intellectual property and patent laws of the United States.
8.6 Retained Rights. Except as otherwise expressly provided in this
Agreement, nothing in this Agreement is intended to convey or transfer
ownership by one party to the other of any rights, title or interest in any
Confidential Information, technology or Patents Rights owned or Controlled by
a party. Except as expressly provided for in this Agreement, nothing in this
Agreement shall be construed as a license or sublicense by one party to the
other of any rights in any technology or Patent Rights owned or Controlled by
a party or its Affiliates.
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8.7 Patent Filing and Prosecution.
8.7.1 Cooperation. Cytovia and Aurora shall cooperate with each other on
all matters relating to the filing, prosecution, and maintenance of patent
applications and patents specifically related to this Agreement that are
included within Joint Technology that is jointly owned. Each party shall
have the right but not the obligation, to file, prosecute, and maintain
(including conducting interference and opposition proceedings) all patent
applications and patents that are solely owned or Controlled by such party
or assigned to such party pursuant to this Agreement that claim inventions
arising out of the parties' performance under this Agreement. In regard to
jointly owned Patent Rights, the party filing, prosecuting or maintaining
a patent application or patent hereunder shall provide to the other party
the opportunity to review and comment upon the text of any priority
application before filing; consulting about the decision whether or not to
foreign file an application, and if so, in which countries such filings
will be made; and giving the other party the opportunity, as far in
advance of filing dates as feasible, to fully review and comment on the
basic foreign filing text; provided, however that if a party chooses not
to share in the cost and attorneys for such activities such party will
lose its rights to such Patent Rights, each party shall provide to the
other copies of any search reports and official actions relating to
jointly owned Patent Rights, including notice of all interferences,
reissues, re-examinations, and oppositions received from the relevant
patent offices promptly after receipt of any such action. With respect to
Patent Rights owned or Controlled by a single party to this Agreement,
each party shall reasonably cooperate with and assist the other in
connection with activities described in this Section 8.7.1 in regard to
jointly owned Patent Rights, at the request of the Party owning or
Controlling such Patent Rights. Each party shall execute and require that
its employee, agent or consultant inventors to execute all documents
reasonably required in connection with the filing, prosecution, or
maintenance of patent applications or patents within respect to the
foregoing.
8.7.2 Failure to Prosecute. Either party may elect upon ***prior notice
to discontinue prosecution or maintenance of any patent within Joint
Technology in any or all countries. In such case, the other party shall
have the right to prosecute and maintain such patent applications and
patents in such countries it deems appropriate, at its sole expense.
8.8 Enforcement. Cytovia and Aurora shall ***, to bring proceedings against
any Third Party for the inappropriate use, including patent infringement, of
technology, trade secrets or Patent Rights solely owned or Controlled by it,
and *** risk and expense. ***retain any and all awards or damages obtained in
any such proceeding. At the request and expense of either party, the other
party shall give the requesting party all reasonable assistance required to
file and conduct any such proceeding. For jointly owned Joint Technology,
Cytovia and Aurora shall use their best efforts to coordinate pursuing a
commercially reasonable action to address inappropriate use, including patent
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infringement, by third parties of such Joint Technology and to determine how
expenses and any recovery from such action shall be allocated between the
parties. Cytovia, as a non-exclusive licensee, ***to provide Aurora with any
information known to Cytovia relating to the suspected or actual inappropriate
use, including patent infringement, of the Aurora Technology.
ARTICLE 9. CONFIDENTIALITY
9.1 Confidential Information. Except as expressly provided herein, the
parties agree that, for the Term of this Agreement and for five (5) years
thereafter, the Receiving Party, except as expressly provided in this Article
9, shall not disclose to any Third Party or use for any purpose other than as
permitted under this Agreement any Confidential Information of the Disclosing
Party, except to the extent that it can be established by the Receiving Party
by competent written proof that such information:
(i ) was already known to the Receiving Party, other than under an
obligation of confidentiality, at the time of disclosure;
(ii) was generally available to the public or otherwise part of the
public domain at the time of its disclosure to the Receiving
Party;
(iii) 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 this
Agreement;
(iv) was independently developed by the Receiving Party;
(v) was, subsequently, lawfully disclosed to the Receiving Party
by a person other than the Disclosing Party; or
(vi) was approved in writing by the Disclosing Party for public
disclosure by the Receiving Party.
9.2 Permitted Use and Disclosures. Each party hereto may use or disclose
Confidential Information disclosed to it by the other party to the extent such
information is included in the Aurora Technology, Cytovia Technology or Joint
Technology, and to the extent such use or disclosure is reasonably necessary
and permitted in the exercise of the rights granted hereunder in filing or
prosecuting patent applications, prosecuting or defending litigation, complying
with applicable governmental regulations, or court orders or otherwise
submitting information to tax or other governmental authorities, conducting
clinical trials, or making a permitted sublicense or otherwise exercising
license rights expressly granted to the other party pursuant to the terms of
this Agreement, provided that if a party is required to make any such
disclosure of the other party's Confidential Information, other than pursuant
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to a confidentiality agreement, it will give reasonable advance notice of such
disclosure to the other party where reasonably possible and, save to the extent
inappropriate in the case of patent applications, will use its reasonable
efforts to secure confidential treatment of such Confidential Information in
consultation with the other party prior to such disclosure (whether through
protective orders or otherwise) and disclose only the minimum necessary to
comply with such requirements.
9.3 Nondisclosure of Terms. Each of the parties hereto agrees not to
disclose to any Third Party the terms of this Agreement without the prior
written consent of the other party hereto, except to such party's attorneys,
advisors, investors, and others on a need-to-know basis under circumstances
that reasonably ensure the confidentiality thereof, or to potential investors
or corporate partners under an obligation of confidentiality, or to the extent
required by law. Notwithstanding the foregoing, the parties shall agree upon
a press release to announce the execution of this Agreement. Thereafter,
Aurora and Cytovia may each disclose to Third Parties the information
contained in such press release without the need for further approval by the
other.
9.4 Use of Data for Promotional Purposes. Either party may (i) make public
statements regarding Development Candidates or Products by announcing the
achievement of milestones and fees therefor, following consultation with the
other party and with the written consent of the other party to the form and
content of the public statement, and (ii) without the prior consent of the
other party, make public statements regarding the overall success rate(s)
achieved by and/or for its customers with the use of Aurora Technology, and
Cytovia Technology, provided it may not disclose any Compound structures,
Screens or the other party's identity.
ARTICLE 10. REPRESENTATIONS AND WARRANTIES
10.1 Cytovia. As of the Effective Date, Cytovia warrants and represents that:
(i) it has the legal power, authority and right to enter into
this Agreement, and to perform all of its obligations
hereunder;
(ii) to the best of its knowledge it has the legal right and power
to extend to Aurora the rights granted in this Agreement; and
(iii) to the best of its knowledge, there are no existing or
threatened actions, suits, or claims pending against it with
respect to the Cytovia Technology.
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10.2 Aurora. As of the Effective Date, Aurora represents and warrants that:
(i) it has the full legal power, authority, and right to enter
into this Agreement, and to perform all of its obligations
hereunder;
(ii) to the best of its knowledge it has the legal right and power
to extend the rights to Cytovia granted in this Agreement;
(iii) to the best of its knowledge there are no existing or
threatened actions, suits, or claims pending against it with
respect to the Aurora Technology; and
(iv) to the best of its knowledge and without performing any
special investigation, ***.
10.3 Disclaimer. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT,
AURORA AND CYTOVIA MAKE NO REPRESENTATIONS AND EXTEND NO WARRANTIES OR
CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, WITH
RESPECT TO AURORA TECHNOLOGY, CYTOVIA TECHNOLOGY, SCREENS, COMPOUNDS, AGENTS,
DEVELOPMENT CANDIDATES, DERIVATIVES, PRODUCTS, OR INFORMATION DISCLOSED
INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, VALIDITY OF ANY AURORA TECHNOLOGY OR CYTOVIA TECHNOLOGY,
PATENTED OR UNPATENTED, OR NONINFRINGEMENT OF THE INTELLECTUAL PROPERTY RIGHTS
OF THIRD PARTIES.
ARTICLE 11. INDEMNIFICATION
11.1 Cytovia. Cytovia agrees to indemnify, defend, and hold Aurora, its
Affiliates, and the directors, officers, employees, and agents of each of them
(the "Aurora Indemnitees") harmless from and against any losses, costs, claims,
damages, liabilities or expenses (including reasonable attorneys' and
professional fees and court and other expenses of litigation) (collectively,
"Liabilities") arising out of or in connection with Third Party claims relating
to
(i) ***
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11.2 Aurora. Aurora agrees to indemnify, defend, and hold Cytovia, its
Affiliates, Cytovia Collaborators and Licensees, and the directors, officers,
employees, and agents of each of them (the "Cytovia Indemnitees") harmless from
and against any Liabilities arising out of or in connection with Third Party
claims relating to
(i) ***
11.3 Procedure. In the event that any Indemnitee intends to claim
indemnification under this Article 11, it shall promptly notify the other party
in writing of such alleged Liability. The indemnifying party shall have the
right to control the defense or settlement thereof using counsel of its choice
that is reasonably acceptable to the Indemnitees; provided, however, that any
Indemnitee shall have the right to retain its own counsel at its own expense,
for any reason, including if representation of any Indemnitee by the counsel
retained by the indemnifying party would be inappropriate due to actual or
potential differing interests between such Indemnitee and any other party
reasonably represented by such counsel in such proceeding. The affected
Indemnitees shall cooperate with the indemnifying party and its legal
representatives in the investigation of any action, claim, or liability covered
by this Article 11. The indemnified party shall not voluntarily make any
payment or incur any expense with respect to any claim or suit without the
prior written consent of the indemnifying party, which such party shall not be
required to give.
ARTICLE 12. TERM AND TERMINATION
12.1 Term. The term of this Agreement shall begin as of the Effective Date
and, unless terminated earlier as provided in this Article 12, continue in full
force and effect until the *** (the "Term").
12.2 Termination for Cause. Either party hereto may terminate this Agreement
in the event the other party has materially breached or defaulted in the
performance of any of its material obligations hereunder, and such default
shall have continued for ***after written notice thereof was provided to the
breaching party by the nonbreaching party. Any termination shall become
effective at the end of such *** period, unless the breaching party has cured
any such breach or default prior to the expiration of the *** cure period or
has provided a written plan to cure any such breach or default that is
acceptable to the other party.
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12.3 Termination for Insolvency. If voluntary or involuntary proceedings by or
against a party are instituted in bankruptcy under any insolvency law, or a
receiver or custodian is appointed for such party, or proceedings are
instituted by or against such party for corporate reorganization or the
dissolution of such party, which proceedings, if involuntary, shall not have
been dismissed within ***after the date of filing, or if such party makes an
assignment for the benefit of creditors, or substantially all of the assets of
such party are seized or attached and not released within *** thereafter, the
other party may immediately terminate this Agreement effective upon giving
notice of such termination to such party.
12.4 Effect of Breach or Termination.
12.4.1 Accrued Obligations. Termination of this Agreement for any reason
shall not release any party hereto from any liability which, at the time
of such termination, has already accrued to the other party or which is
attributable to a period prior to such termination nor preclude either
party from pursuing all rights and remedies it may have hereunder or at
law or in equity with respect to any breach of this Agreement.
12.4.2 Return of Confidential Information. In the event of termination,
but not expiration, of this Agreement, Aurora and Cytovia shall promptly
return to the other party all Confidential Information received from the
other party (except one (1) copy of which may be retained for archival
purposes), and neither party shall be entitled to use any Confidential
Information of the other party for any purpose during the Term such
Confidential Information is to remain confidential, as provided in Section
9.1, provided, however, that if this Agreement terminates prior to its
expiration pursuant to Section 12.1 for breach of this Agreement by
Aurora, Cytovia may continue to use the Confidential Information
pertaining to Aurora Compounds, Cytovia Compounds, Screens and data from
Screens for the purposes permitted in this Agreement, including without
limitation for purposes set forth in Section 2.4.3. Upon any such
termination all materials provided by Cytovia to Aurora, including but not
limited to Compounds, shall be returned to Cytovia or destroyed at the
discretion of Cytovia. For any termination by Aurora for cause, all
materials provided by Aurora to Cytovia shall be returned to Aurora or
destroyed at the discretion of Aurora.
12.4.3 Licenses. The licenses granted to Aurora hereunder shall terminate
in the event of termination of this Agreement.
12.5 Survival. Articles 1, 3, 5, 7, 8, 9, 11,12 and 13 shall survive
expiration or termination of this Agreement for any reason.
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ARTICLE 13. MISCELLANEOUS
13.1 Governing Law. This Agreement and any dispute arising from the
construction, performance, or breach hereof shall be governed by, construed,
and enforced in accordance with the laws of the State of California, without
reference to conflicts of laws principles.
13.2 Dispute Resolution.
13.2.1 Arbitration. The parties recognize that disputes as to certain
matters may from time to time arise during the term of this Agreement
which relate to either party's rights and/or obligations hereunder. It
is the objective of the parties to establish procedures to facilitate the
resolution of disputes arising under this Agreement in an expedient
manner by utual cooperation and without resort to arbitration. The
parties agree that prior to any arbitration concerning this Agreement,
Cytovia's president or CEO and Aurora's president or CEO will meet in
person in a good faith effort to resolve any disputes concerning this
Agreement as set forth in Section 2.1.4. Any dispute arising out of or
relating to this Agreement which is not resolved between the parties or
the designated officers of the parties as set forth in Section 2.1.4 shall
be resolved by final and binding arbitration conducted in San Diego,
California (unless the parties mutually agree to another location) under
the then current Licensing Agreement Arbitration Rules of the American
Arbitration Association ("AAA"). The arbitration shall be conducted by
three (3) arbitrators who are knowledgeable in the subject matter which
is at issue in the dispute. One arbitrator is selected by Cytovia and one
arbitrator is selected Aurora and the third arbitrator is appointed by
the AAA. In conducting the arbitration, the arbitrators shall determine
what discovery will be permitted, consistent with the goal of limiting
the cost and time which the parties must expend for discovery (and
provided that the arbitrators shall permit such discovery they deem
necessary to permit an equitable resolution of the dispute), ensure that
the total time of the arbitration from filing to a final decision or
executed settlement agreement is less than six months, and be able to
decree any and all relief of an equitable nature, including but not
limited to such relief as a temporary restraining order, a preliminary
injunction, a permanent injunction, specific performance or repletion of
property. Discovery shall be permitted as set forth in the Federal Rules
of Civil Procedure with respect to the performance by the parties of
their obligations under this Agreement and such other matters as the
arbiters may determine (it being the intent of the parties that full
discovery occur with respect to salient facts). The arbitrators shall
also be able to award actual or general damages, but shall not award any
other form of damage (e.g., consequential, punitive or exemplary
damages). The parties shall share equally the arbitrator's fees and
expenses pending the resolution of the arbitration unless the arbitrator,
pursuant to its right but not its obligations, requires the non-
prevailing party to bear all or any portion of the costs of the
prevailing party. The decision of the arbitrator shall be final and may
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be sued on or enforced by the party in whose favor it runs in any court
of competent jurisdiction at the option of such party. Notwithstanding
anything to the contrary in this Section 13, either party may seek
immediate injunctive or other interim relief from any court of competent
jurisdiction to enforce and protect the patent rights, copyrights,
trademarks, or other intellectual property rights owned or Controlled by
such party. In no event shall a demand for arbitration be made after the
date when the institution of a legal or equitable proceeding based on
such claim, dispute or other matter in question would be barred by the
applicable statute. Notwithstanding any other provisions of this
Agreement, all disputes regarding the validity, scope or enforceability
of patents shall be submitted to a court of competent jurisdiction in the
country where such patent has issued.
13.3 Assignment. This Agreement shall not be assignable by either party,
without the written consent of the other party, provided, however, that either
party may assign this Agreement without the written consent of the other party
in the event a merger, reorganization, operation of law, acquisition, or sale
of all or substantially all of the business or assets of such party relating
to the subject matter hereof. This Agreement shall be binding upon and inure to
the benefit of any permitted assignee or other transferee, and any such party
shall agree to perform the obligations of the assignor or transferor.
13.4 Independent Contractors. The relationship of the parties hereto is that
of independent contractors. Neither party hereto is to be deemed to be an
agent, partner, or joint venturer of the other party for any purpose as a
result of this Agreement or the transactions contemplated thereby.
13.5 Compliance with Laws. In exercising their rights under this Agreement, the
parties shall fully comply in all material respects with the requirements of
any and all applicable laws, regulations, rules, and orders of any governmental
body having jurisdiction over the exercise of rights under this Agreement,
including, without limitation, those applicable to the discovery, development,
manufacture, distribution, import and export, and sale of pharmaceutical
products.
13.6 Notices. Legal notices, requests, and other communications hereunder shall
be in writing and shall be delivered personally or by registered or certified
mail, return receipt requested, postage prepaid, in each case to the respective
address specified below or such other address as may be specified in writing to
the other party hereto, and shall be deemed to have been given upon receipt, or
if transmitted by fax, upon electronic confirmation of receipt:
If to Aurora: Aurora Biosciences Corporation
00000 Xxxxxxxxx Xxxx
Xxx Xxxxx, XX 00000 U.S.A.
Attn.: President and CEO
CC: Legal and Business Development
Fax: (000) 000-0000
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If to Cytovia: Cytovia, Inc.
000 Xxxxxxxxxx Xxxxx
Xxxxxx XX 00000 U.S.A.
Attn.: President and CEO
CC. Business Development
Fax: (000) 000-0000
13.7 Severability. In the event that any provision of this Agreement becomes or
is declared by a court of competent jurisdiction to be illegal, unenforceable
or void, this Agreement shall continue in full force and effect to the fullest
extent permitted by law without said provision, and the parties shall amend the
Agreement to the extent feasible to lawfully include the substance of the
excluded term to as fully as possible realize the intent of the parties and
their commercial bargain.
13.8 Waiver. It is agreed that no waiver by either party hereto of any breach
or default of any of the covenants or agreements herein set forth shall be
deemed a waiver as to any subsequent and/or similar breach or default. No
waiver shall be effective unless in writing signed by the party having the
waived right.
13.9 Force Majeure. Nonperformance or delayed performance of any party shall
be excused to the extent that performance is rendered impossible or untimely
by strike, fire, earthquake, flood, governmental acts or orders or
restrictions, failure of suppliers, or any other reason where such failure to
perform or delay in performance is beyond the reasonable control and not caused
by the negligence or intentional conduct or misconduct of the nonperforming
party, provided such party uses its *** to resume performance as promptly as
possible.
13.10 Advice of Counsel. This Agreement has been negotiated by the parties and
their respective counsel and shall be fairly interpreted in accordance with its
terms and without application of any rules of construction relating to which
party drafted the Agreement being applied in favor or against either party.
13.11 No Consequential Damages. IN NO EVENT SHALL EITHER PARTY TO THIS
AGREEMENT HAVE ANY LIABILITY TO THE OTHER FOR ANY SPECIAL, CONSEQUENTIAL, OR
INCIDENTAL DAMAGES ARISING UNDER THIS AGREEMENT UNDER ANY THEORY OF LIABILITY,
REGARDLESS OF WHETHER A PARTY HAS NOTICE OF THE POSSIBILITY OF SUCH DAMAGES.
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13.12 Complete Agreement. This Agreement, constitutes the entire agreement,
both written and oral, between the parties with respect to the subject matter
hereof, and all prior agreements respecting the subject matter hereof, either
written or oral, expressed or implied, shall be abrogated, canceled, and are
null and void and of no effect. No amendment or change hereof or addition
hereto shall be effective or binding on either of the parties unless reduced
to writing and executed by a duly authorized representative of each of Aurora
and Cytovia.
13.13 Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed to be an original and all of which together shall be
deemed to be one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their authorized representatives and delivered in duplicate
originals as of the Effective Date.
AURORA BIOSCIENCES CORPORATION CYTOVIA INC.
By: /s/ Xxxxxxx X. Xxxx By: /s/ Xxxxxx Xxxxx
--------------------- --------------------
Date: July 16, 1998 Date: July 16, 1998
--------------------- --------------------
Name: Xxxxxxx Xxxx Name: Xxxxxx Xxxxx
--------------------- --------------------
Title: President and CEO Title: President and CEO
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EXHIBIT A
***
EXHIBIT B
***
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