Exhibit 10.6
February 12, 1999
-------------------------------------------
GEMINI RESEARCH LIMITED
- and -
LARGE SCALE BIOLOGY CORPORATION
-------------------------------------------
COLLABORATION AGREEMENT
-------------------------------------------
Confidential Treatment Requested and the Redacted
Material has been separately filed with the Commission
Table of Contents
1. Definitions ............................................................ 1
2. Management of the Research Programme ................................... 12
3. Conduct of the Research Programme ...................................... 15
4. Funding of the Research Programme ...................................... 20
5. Intellectual Property - Ownership ...................................... 20
6. Intellectual Property - Licences ....................................... 20
7. Further Collaboration .................................................. 21
8. Payments ............................................................... 22
9. Intellectual Property - third party rights ............................. 25
10. Warranties and Liability .............................................. 26
11. Confidentiality ....................................................... 28
12. Term and Termination .................................................. 31
13. Consequences of Termination ........................................... 31
14. Assignment/Sub-Contracting ............................................ 32
15. Force Majeure ......................................................... 33
16. Governing Law ......................................................... 33
17. Jurisdiction .......................................................... 34
18. Waiver ................................................................ 35
19. Severance Of Terms .................................................... 35
20. Entire Agreement/Variations ........................................... 36
21. Notices ............................................................... 36
22. Counterparts .......................................................... 38
23. EC Notification ....................................................... 38
24. This Agreement Not To Constitute A Partnership ........................ 39
25. Costs ................................................................. 39
26. Announcements ......................................................... 39
SCHEDULE 1 .......................................................... 1
SCHEDULE 2 .......................................................... 2
SCHEDULE 3 .......................................................... 3
THIS AGREEMENT the 12th day of February, 1999
BETWEEN:
(1) GEMINI RESEARCH LIMITED whose principal place of business is at 000
Xxxxxxx Xxxx, Xxxxxx Xxxx, Xxxxxxxxx XX0 0XX, XX ("Gemini"); and
(2) LARGE SCALE BIOLOGY CORPORATION whose principal place of business is at
0000 Xxxxxxx Xxxxxx Xxxxx, Xxxxxxxxx, XX 00000, XXX ("LSB").
WHEREAS:
(A) Gemini is a biotechnology company which has collected, analysed and
interpreted phenotypic and genotypic human data and has created a
cross-relational integrated database of such information known as
PHENOBASE(TM).
(B) LSB is a biotechnology company which specializes in protein analysis
utilising its proprietary * technology.
(C) Gemini and LSB have agreed to collaborate in (i) the protein analysis and
linkage of proteins to disease phenotypes using data and samples
collected from identical twins and (ii) the subsequent exploitation of
any identified targets for use in the diagnosis and therapy of certain
specified diseases under the terms of this Agreement.
IT IS NOW AGREED AS FOLLOWS:
1. Definitions
1.1 In this Agreement the following definitions shall apply unless the
context requires otherwise:
1
Confidential Treatment Requested and the Redacted
Material has been separately filed with the Commission
1.1.1 "Affiliate" - any company, partnership or other entity which
directly or indirectly Controls, is Controlled by or is under
common Control with, either Party including as a Subsidiary or
Holding Company.
1.1.2 "Agreement" - this agreement and any and all schedules, appendices
and other addenda to it as may be varied from time to time in
accordance with the provisions of this agreement.
1.1.3 "Business Day" - 9:30am to 5:30pm on a day other than a Saturday,
Sunday, bank or other public holiday in England, Wales and in the
USA.
1.1.4 "Cash Compensation" - any signature fees, licence fees, milestone
payments and royalties or equity payments received by either Party
pursuant to the rights granted under this Agreement. By way of
example, and without limitation, Cash Compensation shall not
include payments made to either Party by sub-licensees for
research, development or supply of materials or products provided
that any agreements covering such payments are made on an
arms-length basis on market terms therefor. For the avoidance of
doubt, Cash Compensation shall exclude any fees paid in relation
to access to any LSB database that may contain Programme Know How.
1.1.5 "Commencement Date" - the date of execution of this Agreement by
the Parties.
1.1.6 "Competent Authority" - any national, state or local agency,
authority, department, inspectorate, minister, ministry official,
parliament or public or statutory person (whether autonomous or
not) of any government of any country having jurisdiction over any
of the activities contemplated by this Agreement or the Parties
including the European Commission, The Court of First Instance and
the European Court of Justice.
2
1.1.7 "Confidential Information" - in the case of obligations on LSB.
Confidential Information shall mean Gemini Data and Programme IP,
in the case of obligations on Gemini, Confidential Information
shall mean LSB Know How and Programme IP and in the case of Gemini
and LSB shall mean trade secrets or confidential information
relating to the business affairs or finances of the other supplied
or otherwise made available to them or coming into their
possession in relation to the performance of this Agreement.
1.1.8 "Control" - means the ownership of more than 50% of the issued
share capital or the legal power to direct or cause the direction
of the general management and policies of the Party in question.
1.1.9 "Deductibles" - deductions from Cash Compensation as mutually
agreed by the Parties.
1.1.10 "Diagnostic Products" - any probe or other research tool or
product, device or service with utility in the diagnosis,
prognosis, prediction or ongoing measurement of disease status of
a disease within the Field which in such case incorporates or
measures the abundance, state of structure of a Target and which
is, or the method or a component of the method that was used to
identify the activity of which is either:
(a) covered by Valid Claims of Programme Patent Rights; or
(b) is not covered by Valid Claims of Programme Patent Rights
but otherwise utilises Programme Know-How or Programme
Materials.
1.1.11 "Disclosing Party" - a Party which discloses Confidential
Information to another Party.
1.1.12 "Documents" - reports, research notes, charts, graphs, comments,
computations, analyses, recordings, photographs, paper, notebooks,
books, files, ledgers, records, tapes, discs, diskettes, CD-ROM,
computer programs and documents thereof, computer information
3
storage means, samples of material, other graphic or written data
and any other media on which Know How can be temporarily or
permanently stored.
1.1.13 "Field" - the following diseases:
*
1.1.14 "First Commercial Sale" - the first commercial sale by LSB or its
sub-licensees or by Gemini and its sub-licensees in any country of
Product after grant of required Marketing Authorisation and
pricing approval has been granted by the appropriate Regulatory
Authority or other Competent Authority.
1.1.15 "Force Majeure" - in relation to any Party any event or
circumstance with is beyond the reasonable control of the Party
which event or circumstance that Party could not reasonable by
expected to have taken into account at the date of this Agreement
and which results in or causes the failure of that Party to
perform any or all of its obligations under this Agreement
including act of God, lightning, fire, storm, flood, earthquake,
accumulation of snow or ice, lack of water arising from weather or
environmental problems, strike, lockout or other industrial or
student disturbance, act of the public enemy, war declared or
undeclared, threat of war, terrorist act, blockade,
4
Confidential Treatment Requested and the Redacted
Material has been separately filed with the Commission
revolution, riot, insurrection, civil commotion, public
demonstration, sabotage, act of vandalism, prevention from or
hindrance in obtaining in any way materials, energy or other
supplies, explosion, fault or failure of plant or machinery (which
could not have been prevented by Good Industry Practice), Legal
Requirement governing either Party provided that lack of funds
shall not be interpreted as a cause beyond the reasonable control
of that Party.
1.1.16 "Gemini Data" - all non-genetic data within PHENOBASE(TM) related
to the Samples to the extent and only insofar as such data relates
to the Field.
1.1.17 "Insolvency Event" - in relation to either Party, means any one of
the following:
(a) a notice shall have been issued to convene a meeting for
the purpose of passing a resolution to wind up that Party
or such a resolution shall have been passed other than a
resolution for the solvent reconstruction or reorganisation
of that Party or for the purpose of inclusion of any part
of the share capital of that Party in the Official List of
the London Stock Exchange or in the list of the American
Stock Exchange or quotation of the same on the National
Association of Securities Dealers Automated Quotation
System or an application by that Party for registration as
a public company in accordance with the requirements of the
Companies Xxx 0000 (U.K.); or
(b) a resolution shall have been passed by that Party's
directors to seek a winding up or administration order or a
petition for a winding up or administration order shall
have been presented against that Party or such an order
shall have been made; or
(c) a receiver, administrative receiver, receiver and manager,
interim receiver, custodian, sequestrator or similar
officer is
5
appointed in respect of that Party or over a substantial
part of its assets or any third party takes steps to
appoint such an officer in respect of that Party or an
encumbrancer takes steps to enforce or enforces its
security; or
(d) a proposal for a voluntary arrangement shall have been made
in relation to that Party under Part I Insolvency Xxx 0000
(U.K.); or
(e) a step or event shall have been taken or arisen outside the
United Kingdom which is similar or analogous to any of the
steps or events listed at (a) to (d) above; or
(f) that Party takes any step (including starting negotiations)
with a view to readjustment, rescheduling or deferral of
any part of that Party's indebtedness, or proposes or makes
any general assignment, composition or arrangement with or
for the benefit of all or some of that Party's creditors or
makes or suspends or threatens to suspend making payments
to all or some of that Party's creditors or the Party
submits to any type of voluntary arrangement; provided,
however, that the provisions of this paragraph (f) are
subject to a threshold limit equalling the greater of US $
100,000 OR 5% of that Party's total liabilities;
1.1.18 "Joint Committee" or "JC" - the committee established pursuant to
Clauses 2.1 and 2.2.
1.1.19 "Know How" - unpatented technical and other information which is
not in the public domain including information comprising or
relating to concepts, discoveries, data designs, formulae, ideas,
information relating to Material, inventions, methods, models,
assays, research plans, procedures, designs for experiments and
tests and results of experimentation and testing (including
results of research or development) processes (including
manufacturing processes,
6
specifications and techniques), laboratory records, chemical,
pharmacological, toxicological, clinical, analytical and quality
control data, trial data, case report forms, data analyses,
reports, manufacturing data or summaries and information continued
in submissions to an information from ethical committees and
regulatory authorities. Know How includes Documents containing
Know-How. The fact that an item is known to the public shall not
be taken to exclude the possibility that a compilation including
the item, and/or a development relating to the item, is (as
remains) not known to the public. Know How includes any rights
including copyright, database or design rights protecting such
Know-How.
1.1.20 "Legal Requirement" - any present or future law, regulation,
directive, instruction, direction or rule any Competent Authority
or Regulatory Authority including any amendment extension or
replacement thereof which is from time to time in force.
1.1.21 "LSB" - LSB and its Affiliates from to time.
1.1.22 "LSB Know How" - the know How available to LSB at the Commencement
Date or during the period of this Agreement relating to *
1.1.23 "Major Markets" - *
1.1.24 "Marketing Authorisation" - any approval required from a
Regulatory Authority to market and sell a Product in any country.
1.1.25 "Material" - any chemical or biological substances whatsoever.
1.1.26 "Net Profit" - Cash Compensation less Deductibles.
7
Confidential Treatment Requested and the Redacted
Material has been separately filed with the Commission
doubt, Programme Know How shall not include the Gemini Data
itself.
1.1.27 "Net Sales" - with respect to Product, the gross amount invoiced
by either Party to unrelated third parties for such Products less:
(a) quantity, trade and/or cash discounts actually granted.
(b) amounts repaid or credited and allowances including cash,
credit or free good allowances, given by reason of
chargebacks, retroactive price reductions or billing errors
and rebates (including government-mandated rebates),
actually allowed or paid.
(c) amounts refunded or credited for Product which was
recalled, rejected, spoiled, damaged, outdated or returned.
(d) freight, shipment and insurance costs incurred transporting
Product to a third party purchaser.
(e) taxes, tariffs, customs duties and surcharges and other
governmental charges incurred in connection with the sale,
exportation or importation of Product.
The transfer of Product by LSB or one of its Affiliates to another
Affiliate shall not be considered a sale. In such cases Net Sales shall
be determined based on the invoiced sale price by the Affiliate to the
first third party trade purchaser, less the deductions allowed under this
Clause.
Upon the sale or other disposal of Product other than in a bona fide arms
length transaction exclusively for money or upon any use of Product for
purposes which do not result in a disposal of that Product in
consideration of sales revenue customary in the country of use for that
sale, other disposal or use shall be deemed to constitute a sale at the
relevant open market price in the country in which the sale, other
disposal or use occurs, or, if that price is not ascertainable, a
reasonable price assessed on an arms length basis for the goods or
services provided in exchange of the supply. Disposal of Product for,
8
or use of Product in, clinical or pre-clinical trials or as free samples,
such samples to be in quantities common in the industry for this sort of
Product, shall not give rise to any deemed sale under this Clause.
Such amounts shall be determined from the books and records of LSB or
Gemini, as the case may be, maintained in accordance with GAAP,
consistently applied.
1.1.28 "Parties" - Gemini and LSB.
1.1.29 "Patent Rights" - patent applications and patents, author
certificates, inventor certificates, utility certificates,
improvements patents and models and certificates of addition and
all foreign counterparts of them, including any divisional
applications and patents, refilings, renewals, continuations,
continuations-in-part, patents of addition, extensions, reissues,
substitutions, confirmations, registrations, revalidation and
additions of or to any of them, as well as any supplementary
protection certificates and equivalent protection rights in
respect of any of them.
1.1.30 "PHENOBASE(TM)" - the cross-relational integrated database owned
by Gemini which contains data arising from the analysis and
interpretation of phenotypic and genotypic human data obtained
from collections of human blood, serum and urine samples.
1.1.31 "Product(s)" - a Diagnostic Product or a Therapeutic Product.
1.1.32 "Programme IP" - Programme Know How, Programme Material and
Programme Patent Rights.
1.1.33 "Programme Know How" - Know How conceived, generated or developed
by or on behalf of LSB or by or on behalf of Gemini under the
Research Programme relating to the proteins contained in Samples
and/or the linkage analysis of said proteins to the non-genetic
information comprised in PHENOBASE(TM). For the avoidance of
9
doubt, Programme Know How shall not include the Gemini Data itself
or improvements in LSB Know How.
1.1.34 "Programme Material" - Materials generated or developed by or on
behalf of LSB or by or on behalf of Gemini under the Research
Programme but for the avoidance of doubt excluding the Samples;
1.1.35 "Programme Patent Rights" - any Patent Rights claiming or covering
or otherwise based on inventions forming part of Programme Know
How or inventions comprised in Programme Materials.
1.1.36 "Quarter" - each period of three months ending on 31 March, 30
June, 30 September or 31 December and "Quarterly" shall be
construed accordingly.
1.1.37 "Recipient Party" - a Party which receives Confidential
Information from another Party.
1.1.38 "Regulatory Authority" - shall mean any national, supranational
(e.g., the European Commission, the Council of the European Union,
the European Agency for the Evaluation of Medicinal Products or
the FDA), regional, state or local regulatory agency, department,
bureau, commission, council or other governmental entity in each
country of the territory involved in the granting of Marketing
Authorisation for the Product.
1.1.39 "Relevant Material" - all documents or other material in the
possession or control of the furnishing party which are relevant
to matters in dispute in the arbitration with the exception of
communications to and from lawyers admitted to practice law or
practising law (whether or not employed by a party) for the
purpose of obtaining and giving legal advice.
1.1.40 "Research Programme" - the 12 month programme of work to be
conducted by the Parties hereunder involving the protein analysis
of the Samples using the LSB Know How and linkage of resulting
10
protein data to the non-genetic information available on the
Samples comprised in PHENOBASE(TM) with a view to the generation
and validation of Targets, an outline of which is set out in
Schedule 2 and the detail of which shall be determined by JC from
time to time.
1.1.41 "Samples" - * samples * from identical twins collected and stored
by Gemini and in Gemini's possession, custody or control as may be
supplied by Gemini pursuant to this Agreement.
1.1.42 "Subsidiary or Holding Company" - the meaning ascribed to those
expressions by Section 736 of the Companies Xxx 0000 (as amended).
1.1.43 "Target" - a protein discovered by LSB or Gemini, pursuant to the
Research Programme *.
1.1.44 "Therapeutic product" - shall mean any Protein Product or Protein
Derivative Product with utility in the therapy of a disease within
the Field and which incorporates a Target which is, or the method
or a component of the method that was used to identify the
activity of which is covered by a Valid Claim of Programme Patent
Rights or which utilises Programme Know How or Programme
Materials.
(a) "Protein Product" shall mean a product consisting of any
variant of a protein associated with a disease within the
Field.
(b) "Protein Derivative Product" shall mean a product that is
any naturally occurring truncation, mutation and/or variant
or functionally active non-naturally occurring peptide
and/or protein variant of a Protein Product.
1.1.45 "Valid Claim" - shall mean either:
11
Confidential Treatment Requested and the Redacted
Material has been separately filed with the Commission
(a) a claim of an issued and unexpired patent included within
Patent Rights, which as not been held permanently revoked,
unenforceable or invalid by a decision of a court or other
governmental agency of competent jurisdiction, unappealable
or un-appealed within the time allowed for appeal, and
which has not been admitted to be invalid or unenforceable
through reissue of disclaimer or otherwise; or
(b) a claim of a pending patent application included within
Patent Rights which claim was filed and is being prosecuted
in good faith and has not been abandoned or finally
disallowed without the possibility of appeal or refiling of
the application.
1.1.46 "Year" - twelve (12) months commencing 1 January and ending on 31
December.
2. Management of the Research Programme
2.1 With effect from the Commencement Date the Parties shall establish a
Joint Committee which shall manage and oversee the Research Programme and
which shall liase in relation to the identification, optimisation,
development and commercialisation of Products. The principal objective of
the Research Programme is to identify Targets at the earliest
opportunity. The existence of the Joint Committee shall survive the
Research Programme and thereafter shall provide a forum for liaison
concerning the identification and optimisation of Product candidates and
the development and implementation of a commercialisation strategy
designed to ensure maximum worldwide sales of such Products. The Joint
Committee shall have the following specific functions and
responsibilities:
2.1.1 to hold meetings in person or by teleconference not less than once
each Quarter during the period of the Research Programme and not
less than once each year thereafter or more frequently upon the
12
reasonable request of either Party. Dates of meetings to be held
in person shall be agreed by the Parties not less than 30 days
beforehand;
2.1.2 agree the detailed Research Programme based on the outline in
Schedule 2 including establishing detailed work programmes and
timetables;
2.1.3 receive reports from the Parties on progress with the Research
Programme and review the same;
2.2.4 agree variations to the Research Programme;
2.1.5 receive reports from LSB and, when applicable, from Gemini, on
progress with the identification and optimisation of Product
candidates and the development and implementation of a
commercialisation strategy designed to ensure maximum world-wide
sales of such Products;
2.1.6 such other functions and responsibilities as it shall determine.
2.2 The Parties shall establish and run the Joint Committee as follows:
2.2.1 The JC shall comprise four persons ("Members") and LSB and Gemini
respectively shall be entitled to appoint two Members, to remove
any Member appointed by it and to appoint any person to fill a
vacancy arising from the removal or retirement of such Member. The
initial members of the JC shall be as follows:
LSB Members Gemini Members
Dr. N. Xxxxx Xxxxxxxx Mr. Xxxxxx Xxxxxx
Xx. Xxxxxx Xxxxxxx Dr. Xxxxxxx Xxxx
LSB and Gemini respectively shall each notify the other in writing
of the identities of their Members whenever a change occurs. Both
sides shall use reasonable endeavours to keep an appropriate level
of continuity in representation. Members may be represented at any
13
meeting by another person designated by the absent Member. Each
meeting shall be chaired alternately by a Gemini Member and then a
LSB Member. The chairman shall not have a tie-breaking vote.
2.2.2 The quorum for meetings of the JC shall be two Members provided
that there are at least one Member from each of LSB and Gemini
present. During the Research Programme conclusions and decisions
of the JC shall be made by unanimous agreement of the Members
present and shall be minuted by or upon behalf of the Chairman who
shall send a copy of the minutes of each JC meeting to both
parties. Both during and following the Research Programme both
parties will use their reasonable efforts to build consensus.
Should it prove impossible to obtain such consensus the Parties
shall discuss the position in good faith in an effort to resolve
their differences and if it still does not prove possible to
obtain agreement then any outstanding matters requiring resolution
may be referred to the Chief Executive Officer of LSB or his
nominee and the Chief Executive Officer of Gemini or his nominee
for resolution who together shall use reasonable efforts to
resolve such matters within 30 days of the date such matters are
referred to them for resolution. In the absence of such agreement
being reached either Party shall have the right to terminate this
Agreement.
2.2.3 The JC shall first meet within 20 Business Days following the
Commencement Date and then in accordance with Clause 2.1. The
venue for all meetings shall, in the absence of agreement to the
contrary, alternate between the premises of the Parties. Each
Party shall be responsible for its own expenses including travel
and accommodation costs incurred in connection with JC meetings.
2.2.4 The JC shall have power to invite persons whose special skills or
influence might advance the Research Programme to attend and
address meetings of the JC. For the avoidance of doubt it is
agreed that such persons shall not be Members, shall not have a
right to
14
participate in the decision making process of the JC and shall
execute a non-disclosure agreement whose form shall be acceptable
to both Parties.
3. Conduct of the Research Programme
3.1 Within 20 days of the first meeting of the JC pursuant to Clause 2.2.3
Gemini shall provide LSB with a quantity of * Samples * which have been
collected and stored by Gemini and are in Gemini's possession custody or
control as at the Commencement Date. The quantity of * Samples to be
provided by Gemini shall depend upon the disease area and shall be
determined by the JC at its first meeting pursuant to Clause 2.2.3.
Unless agreed otherwise by Gemini in writing and at its sole discretion,
the total number of identical twin pairs from whom such Samples may be
provided to LSB shall not exceed *. At LSB's request Gemini shall also
provide LSB with the corresponding * Samples from the same pairs of
identical twins. LSB shall ensure that the Samples are stored in a secure
place on LSB's premises in such storage conditions as are reasonably
requested by Gemini.
3.2 LSB shall only use the Samples for the purpose of conducting protein
analysis of such Samples within the Field using LSB's Know How and shall
not use the Samples for any other purpose whatsoever. For the avoidance
of doubt LSB shall not be permitted to utilise the Samples for any type
of genetic or genomic analysis. Gemini shall only use the Programme Know
How for the purpose of carrying out protein linkage analysis in relation
to the non-genetic information comprised in PHENOBASE(TM) relating to the
diseases in the Field, and shall not be permitted to use Programme Know
How for any other purpose whatsoever.
3.3 Each Party shall carry out its part of the Research Programme as set out
in this Agreement and as may be allocated to them by JC from time to
time. Each Party shall use all reasonable endeavours to carry out the
protein linkage
15
Confidential Treatment Requested and the Redacted
Material has been separately filed with the Commission
analyses to the non-genetic information available on the Samples comprised in
PHENOBASE(TM) relating to the diseases in the Field to be conducted as part of
the Research Programme as soon as reasonably practicable, including the exchange
of the results of said protein linkage analysis with the other Party. For the
avoidance of doubt it is declared and agreed that nothing in this Agreement
confers any right on LSB to have access to PHENOBASE(TM) or requires Gemini to
use the same for LSB outside the Field.
3.4 Neither Party shall sub-contract the whole or part of its part of the
Research Programme without the consent of JC. If such consent is given
the appointment of any sub-contractor shall be on the following terms:
3.4.1 that the Party in question shall pay the funds identified for the
work required from the sub-contractor;
3.4.2 that as between such Party and the sub-contractor all results
emerging from such work and any related intellectual property
shall be owned by such Party;
3.4.3 that the sub-contractor shall be obligated in terms the same as
Clauses 11 and 14 of this Agreement.
3.5 Until conclusion of the Research Programme each Party ("Reporting Party")
shall within 21 days of the end of each Quarter send a written report to
the other Party and to its Members on JC which shall summarise in
reasonable detail the progress achieved by the Reporting Party and its
sub-contractors with the Research Programme during such Quarter and the
results obtained.
3.6 During the period of the Research Programme any and all Targets generated
or validated by LSB or Gemini shall be promptly disclosed to the JC. LSB
shall as its own cost and expense by solely responsible for the filing,
prosecution and maintenance of Programme Patent Rights and shall file and
prosecute patent applications relating to Targets. LSB shall keep Gemini
informed of all material developments in relation to Programme Patent
Rights and shall supply Gemini at no less than 6-month intervals a status
report of Programme Patent Rights. If at any time LSB proposes not to
file or to abandon any Programme
16
Patent Rights it shall give written notice of this fact to Gemini giving
Gemini the right to take over the filing prosecution and/or maintenance
of the same. Such notice shall be given not less than 60 days prior to
any critical date in relation to such Programme Patent Rights. If Gemini
gives written notice to LSB exercising such right LSB shall assign the
investion/patent application to Gemini and shall do all such acts and
things and execute all such deeds and documents as are necessary to vest
full right title and interest in such Programme Patent Rights in Gemini
and to assign to Gemini the benefit and burden of any linked patent
licences. Gemini shall be permitted to develop and commercialise Targets
(and corresponding Products) falling within the Programme Patent Rights
assigned to Gemini pursuant this Clause 3.6. If Gemini commercialises
Product relating to Targets falling within the Programme Patent Rights
assigned to it pursuant to this Clause 3.6, Gemini shall pay LSB *
3.7 Following conclusion of the Research Programme LSB shall devise a
research and development strategy and plan for the identification,
optimisation and development of Products relating to the Targets
identified pursuant to the Research Programme. Within 120 days of the
conclusion of the Research Programme LSB shall send a copy of such
strategy and plan to JC and Gemini. The strategy and plan in relation to
each such Target shall include at least the following elements:
3.7.1 the development of a diagnostic Product, if appropriate, within *
of the conclusion of the Research Programme which may include
licensing out such development to a pharmaceutical company;
3.7.2 the identification and optimisation of a Therapeutic Product in
relation to at least one indication in the Field within * of the
conclusion of the Research programme which may include licensing
out such development of a pharmaceutical company.
17
Confidential Treatment Requested and the Redacted
Material has been separately filed with the Commission
3.7.3 the right for Gemini to take an assignment of all right title and
interest in and to Programme IP relating to a particular Target if
such Target is not subject to such a strategy and plan if Gemini
proposes to undertake such a strategy and plan; provided, however,
that (i) such assignment shall be made only to the extent that
Programme IP relating to such Target is separable from other
Programme IP, and (ii) LSB shall retain the right to use Programme
Know How relating to such Target in the context of other Programme
Know How not assigned pursuant to this 3.7.3. If Product is
commercialised relating to such Target, Gemini shall pay LSB *.
3.8 In relation to each Target the subject of further research and
development by LSB or its licensee LSB shall, at LSB's expense, use good
faith reasonable efforts to develop and commercialise * and to maximise
the revenues generated from sales of such Products in at least the Major
Markets in either case by itself or any licensee.
3.9 Following twelve (12) months after the conclusion of the Research
Programme and each anniversary thereafter, LSB or Gemini, as the case may
be, shall within 21 days send a written report to the other Party and to
its Members on JC which shall summarise in detail the progress achieved
and results obtained by LSB or Gemini, as the case may be, and its
sub-contractors in relation to any strategy and plan the subject of
Clause 3.7.
3.10 If in Gemini's reasonable opinion LSB fails to comply with any of its
diligence obligations under Clause 3.7 in relation to any such Product
relating to a particular Target then Gemini shall have the right to give
LSB written notice thereof stating in reasonable detail the particular
failure(s). LSB shall have a period of ninety (90) days from the receipt
of such notice to remedy the failure(s). If LSB fails to remedy the
failure within such ninety (90) day period
18
Confidential Treatment Requested and the Redacted
Material has been separately filed with the Commission
Gemini shall have the sole and exclusive right to pursue
commercialisation of such Product(s) either itself or through a licensee
provided always that if such product is a Diagnostic Product LSB is not
then commericialising a Therapeutic Product relating to the same Target
or if such Product is a Therapeutic Product LSB is not commericialising a
Diagnostic Product relating to the same Target. Such commericalisation
shall occur on the following terms:
3.10.1 LSB shall assign to Gemini all LSB's right title and interest
in and to the Programme IP relating to the Target in question;
provided, however, that (i) such assignment shall be made only
to the extent that Programme IP relating to such Target is
separable from other Programme IP, and (ii) LSB shall retain
the right to use Programme Know How relating to such Target
in the context of other Programme Know How.
3.10.2 If Gemini commercialises such Product it shall pay LSB a royalty
of * in relation to Product developed and sold directly by Gemini
and a royalty of * where Product is developed or sold by a
licensee of Gemini and the terms set out in Clauses 8.2 to 8.6
inclusive and Clause 8.8 shall apply mutatis mutandis save that
under Clause 8.4 Gemini shall pay LSB from a single source in
the UK rather than in the US.
3.10.3 If LSB has previously appointed a licensee of such Products
Gemini shall enter into an agreement with such licensee granting
them the rights to continue * * provided always that the licensee
has not caused LSB's failure to comply with the diligence
provisions.
3.10.4 LSB shall cease to use the Programme IP and the Gemini Data in
relation to such Product(s).
3.11 LSB shall promptly inform Gemini in writing of details of each Marketing
Authorisation obtained by LSB in relation to Product and at the same time
shall
19
Confidential Treatment Requested and the Redacted
Material has been separately filed with the Commission
send Gemini a copy of each such Marketing Authorisation. LSB shall
promptly inform Gemini in writing of the occurrence of First Commercial
Sale in each country. Gemini shall promptly inform LSB in writing of the
occurrence of First Commercial Sale in each country of any Product which
Gemini commercialises from Targets arising from the Research Programme.
3.12 If LSB wishes to add further disease(s) to the Field it shall so notify
Gemini in writing stating the precise disease(s). Gemini shall consider
such request in good faith and may in its absolute discretion agree or
refuse to extend the Field of this Agreement to include the disease(s) in
question by notice in writing to LSB.
4. Funding of the Research Programme
4.1 Each Party shall be solely responsible for the cost of its part of the
Research Programme.
5. Intellectual Property - Ownership
5.1 Any and all Gemini Data is and shall remain owned by or licensed to
Gemini and LSB achknowledges and agrees that any and all copyright, or
other intellectual property rights subsisting in the Gemini Data shall
remain the property of Gemini.
5.2 Any and all Programme IP shall vest in and be owned by LSB.
6. Intellectual Property - Licences
6.1 Save as provided in Clauses 3.7.3, 3.10.1 and 3.11, Gemini hereby
grants to LSB a worldwide non-exclusive licence to use the Gemini Data
to identify Targets. LSB shall not have the right to sub-licence the
same without the prior written consent of Gemini, such consent to be
provided or refused at Gemini's sole and absolute discretion.
20
6.2 LSB shall be responsible for all payments due to Gemini under this
Agreement as a result of the activities of LSB's Affiliates and
sub-licensees. LSB shall ensure that any sub-licensee performs its
financial obligations under that sub-licence and LSB indemnifies Gemini
against all loss, damage, cost or expense which Gemini may incur as a
result of failure by a sub-licensee of LSB to perform such obligations.
6.3 It is expressly understood that nothing in this Agreement shall be
construed so as to grant any patent right or license to any LSB Know How
and that all methods and technology arising from the Research Programme
and relating to LSB Know How remain the sole and exclusive property of
LSB.
7. Further Collaboration
7.1 During the period of the Research Programme Gemini shall not either
itself or through a third party undertake protein analysis of samples
available to it from * using LSB Know How or other similar proteomics
technology based on *.
7.2 Gemini hereby agrees that for a period of 6 months from the
Commencement Date it shall pursue good faith negotiations with LSB for
the purpose of agreeing terms for a further collaboration agreement
relating to * and the identification, optimisation, development and
commercialisation of Products arising therefrom.
7.3 Gemini agrees that during such 6 month negotiation period set out in
Clause 7.2 it shall not enter into any negotiations with any other
party for the purpose of establishing any collaborative arrangement or
agreement in relation to * * or the identification development and
commercialisation of products arising therefrom.
21
Confidential Treatment Requested and the Redacted
Material has been separately filed with the Commission
7.4 If, following the six month period of good faith negotiations referred
to in Clause 7.3, the Parties fail to reach agreement on such
collaboration as is described in Clause 7.2, Gemini shall be free to
pursue such a collaboration with a third party provided that where,
during the twelve (12) month period following the expiry of such six
month negotiation period, Gemini intends to enter into a collaboration
with a third party it shall first notify LSB of the proposed terms of
said third party collaboration and LSB shall have a period of one (1)
month to accept such terms for establishing such a collaboration between
Gemini and LSB. Should LSB decline to enter into such a collaboration
under such terms proposed by said third party, then Gemini shall then
be free to pursue such a collaboration with a third party.
7.5 During the term of the Research Programme LSB shall not use nor
licence the use of the LSB Know How within the Field on or in relation
to * other than the Samples.
8. Payments
8.1 LSB shall pay to Gemini:
8.1.1 a royalty of * in relation to Product developed and sold
directly by LSB; and
8.1.2 a royalty of * where Product is developed or sold by a licensee
of LSB.
8.2 Royalties payable under Clauses 8.1 shall be payable on a country by
country basis for the life of Programme Patent Rights in such country
or 10 years from First Commercial Sale in such country whichever is
the longer.
8.3 LSB shall make the payments due to Gemini under clause 8.1 at Quarterly
intervals. Within 60 days of the end of each Quarter after First
Commercial Sale in any country LSB shall prepare a statement which shall
show on a country by country basis for the previous Quarter all monies
due to Gemini under Clause 8.1. That statement shall include details of
Net Sales and Net Profit broken down to show the country of the sales,
the total Net Sales and Net
22
Confidential Treatment Requested and the Redacted
Material has been separately filed with the Commission
Profit in such country but in local currency and converted into US
dollars and the numbers or other indication as to volume of Product sold.
The statement shall be submitted to Gemini within 60 days of the end of
the Quarter to which it relates together with remittance of the monies
due to Gemini.
8.4 LSB shall pay royalties to Gemini from a single source in the US in
pounds sterling. Such payments shall be made free and clear of and
without deduction or deferment in respect of any disputes or claims
whatsoever and/or as far as is legally possible in respect of any taxes
imposed by or under the authority of any government or public authority.
Any tax which LSB is required to pay or withhold with respect of licence
fees and royalty payments to be made to Gemini hereunder shall be
deducted from the amount otherwise due provided that, in regard to any
such deduction, LSB shall give Gemini such assistance, which shall
include the provision of such documentation as may be required by the UK
Inland Revenue Authority and other revenue services, as may reasonably be
necessary to enable Gemini to claim exemption therefrom or obtain a
repayment thereof or a reduction thereof and shall upon request provide
such additional documentation from time to time as is needed to confirm
the payment of tax. The Parties acknowledge that as at the Commencement
Date since payment to Gemini is from a single US source and that Gemini
is a company resident in the UK (as set out in the provisions of the
UK/US Double Taxation Treaty) as at the Commencement Date all qualifying
payments will be able to benefit from the UK/US Double Taxation Treaty
and accordingly, unless the law or practice is changed requiring a
withholding to be made in practice, all sums paid to Gemini shall be paid
gross free of deduction of withholding tax and each shall do all such
acts and things as may be necessary or desirable to benefit from the
aforesaid UK/US Double Taxation Treaty. For the avoidance of doubt it is
declared and agreed that LSB shall be liable to pay Gemini the full
amount of all royalties due notwithstanding any reason why monies in
respect of any relevant sales cannot be remitted to the UK.
8.5 Where Product is sold in a currency other than pounds Sterling the rate
of exchange to be used for converting such other currency into pounds
Sterling
23
shall be the average rate at which such other currency can be sold for
pounds Sterling prevailing in London at the close of business on the last
working date for the period for which payment is to be made.
8.6 LSB shall keep and shall procure that its sub-licensees keep true and
accurate records and books of account containing all data necessary for
the calculation of the amounts payable by it to Gemini pursuant to this
Agreement. Those records and books of account shall be kept for 7 years
following the end of the Year to which they relate. Upon Gemini's written
request a firm of accountants appointed by agreement between the Parties
or, failing such agreement, within 10 Business Days of the initiation of
discussions between them on this point and at the request of either Party
by the President for the time being of the Institute of Chartered
Accountants of England and Wales in London and:-
8.6.1 such firm of accountants shall be given access to and shall be
permitted to examine and copy such books and records upon 20
Business Days notice having been given by Gemini and at all
reasonable times on Business Days for the purpose of certifying to
Gemini that the Net Profit and Net Sales calculated by LSB and its
licensees during any Year was reasonably calculated, true and
accurate or, if this is not their opinion certify the Net Profit
and Net Sales figures for such period which in their judgement are
true and correct;
8.6.2 Prior to any such examination taking place, such firm of
accountant shall undertake to LSB in a deed that they shall keep
all information and data contained in such books and records,
strictly confidential and shall not disclose such information or
copies of such books and records to any third person including
Gemini, but shall only use the same for the purpose of the
calculations which they need to perform in order to issue the
certificate to Gemini which this Clause 8.6 envisages;
24
8.6.3 any such access examination and certification shall occur no more
than once per year and will not go back over records more than 2
years old unless a discrepancy greater than 5% is found;
8.6.4 LSB shall make available personnel to answer queries on all books
and records required for to purpose of that certification;
8.6.5 the cost of the accountant shall be the responsibility of LSB if
the certification shows LSB to have underpaid monies to Gemini by
more than 5% and the responsibility of Gemini otherwise.
Within 10 Business Days following any such certification any monies which
such certification shows as being due and owing by one Party to the other
(whether because of an underpayment or overpayment) shall be paid by that
Party.
8.7 All payments made to Gemini under the Agreement shall be made to the
account of Gemini Research Limited at Midland Bank plc. XX Xxx 000,
Xxxxxxx & Xxxxxxx Xxxxxx, Xxxxxx, XX0X 0XX, Sort Code 40-05-30, Account
No. 00000000 by telegraphic transfer.
8.8 If either Party fails to make any payment to the other Party hereunder on
the due date for payment, without prejudice to any other right or remedy
available to the Party owed said payments, said Party shall be entitled
to charge to other Party interest (both before and after judgement) on
the amount unpaid at to rate of LIBOR plus 5% (subject to a maximum of
15% total interest) calculated on a daily basis until payment in full is
made without prejudice to the Party's right to receive payment on the due
date.
9. Intellectual Property - third party rights
9.1 If during the period of this Agreement either Party receives any notice,
claim or proceedings from any third party alleging infringement of that
third party's intellectual property by reason of any Party's activities
in relation to this Agreement, the Party receiving that notice shall:
25
9.1.1 forthwith notify the other Party of the notice, claim or
proceeding; and
9.1.2 neither Party shall make any admission of liability; and
9.1.3 LSB shall at its own cost and expense be responsible for and shall
have conduct of and sole authority to defend or settle such claims
or proceedings in so far as such claims or proceedings relate
solely to LSB's activities or to the joint activities of LSB and
Gemini under this Agreement subject to prior consultation with
Gemini. If LSB reasonably believe the third party rights are valid
and that infringement may be occurring it shall use its reasonable
endeavours to seek a licence from such third party on appropriate
commercial terms as LSB's own sole cost and expense; and
9.1.4 Gemini shall at its own cost and expense be responsible for and
shall have conduct of and sole authority to defend or settle such
claims or proceedings in so far as such claims or proceedings
relate to the ownership of or rights relating to Samples or solely
to Gemini's activities under this Agreement including, without
limitation, and for the avoidance of doubt, Clauses 3.6, 3.7.3,
3.10 and 13.11. If Gemini reasonably believe the third party
rights are valid and that infringement may be occurring it shall
use its reasonable endeavours to seek a licence from such third
party or an appropriate commercial terms as Gemini's own sole cost
and expense.
10. Warranties And Liability
10.1 Save as provided in 10.2.,10.3 and 10.4, no representation, condition or
warranty other than those expressly set out in this Agreement is made or
given by or out behalf of Gemini a LSB. All condition and warranties
whether arising by operation of law or otherwise are hereby expressly
excluded including any conditions and warranties to the effect that any
of the acts to be undertaken by LSB a Gemini pursuant to this Agreement
will nor infringe to rights of third parties.
26
10.2 Gemini wants that it has secured all rights necessary to commercially
develop the Samples and Gemini Data, and/or any uses thereof, for the
purposes envisaged in this Agreement.
10.3 LSB shall be responsible for and indemnify Gemini and its directors,
officers, servants and agents (collectively "the Indemnified Party")
against any and all liability, loss, damage, cost and expense (including
legal costs) incurred or suffered by the Indemnified Party as a result of
any claim brought against Gemini by a third party which is related to the
activities of LSB or its sub-licensees hereunder including a claim that
use of any Product developed and commercialised by or for LSB has caused
death or bodily injury. An Indemnified Party that intends to claim
indemnification under this Clause 10.2 shall promptly notify LSB of any
third party claim in respect of which the indemnified Party intends to
claim that indemnification. The Indemnified Party shall not compromise or
settle the claim prior to any such notice. LSB may assume to defence of
any such third party claim with counsel mutually satisfactory to the
Parties provided, however, that an Indemnified Party shall have the right
to retain its own counsel, if representation of that Indemnified Party by
the counsel retained by LSB would be inappropriate due to actual or
potential differing interests between the Indemnified Party and any other
party represented by that counsel in the proceedings. The Indemnified
Party shall co-operate with LSB and its legal representatives in the
investigation of any matter covered by this indemnification.
10.4 Gemini shall be responsible for and indemnify LSB and its directors,
officers, servants and agents (collectively "the Indemnified Party")
against any and all liability, loss, damage, cost and expense (including
legal costs) incurred or suffered by the Indemnified Party as a result of
any claim bought against LSB by a third party which is related to the
ownership or rights relating to the Samples or to the activities of
Gemini or its sub-licensees hereunder including a claim that use of any
Product developed and/or commercialised by or for Gemini in accordance
with this Agreement has caused death or bodily injury. An indemnified
Party that intends to claim indemnification under this Clause 10.3 shall
promptly notify Gemini of any third party claim in respect of which
27
the Indemnified Party intent to claim that indemnification. The
Indemnified Party shall not compromise or settle any other claim prior to
any such notice. Gemini may assume the defence of any such third party
claim with counsel mutually satisfactory to the Parties, provided,
however than an Indemnified Party shall have the right to retain its own
counsel, if representation of that Indemnified Party by the counsel
retained by Gemini would be inappropriate due to actual or potential
differing interest between the Indemnified Party and any other party
represented by that counsel in the proceedings. The Indemnified Party
shall co-operate fully with Gemini and its legal representatives in the
investigation of any matter covered by this indemnification.
10.5 Subject to the provision of Clauses 10.2 and 10.3 neither Party shall be
liable to the other in contract, tort, negligence, breach of statutory
duty or otherwise for any economic loss or other loss of turnover,
profits, business or goodwill or any loss, damage, costs or expenses of
any nature whatsoever incurred or suffered by the other or its Affiliates
of an indirect or consequential nature arising out of or in connection
with this Agreement.
11. Confidentiality
11.1 Each of the Parties undertakes and agrees to:
11.1.1 only use the Confidential Information for the purposes envisaged
under this Agreement and not to use the same for any other purpose
whatsoever;
11.1.2 ensure that only those of its officers and employs who are
directly concerned with the carrying out of this Agreement have
access to the Confidential Information on a strictly applied "need
to know" basis and are informed of the secret and confidential
nation of it;
11.4.3 keep the Confidential Information secret and confidential and not
directly or indirectly to disclose or permit to be disclosed, make
28
available or permit to be made available the same to any third
party for any reason without the prior written consent of the
Disclosing Party;
11.1.4 ensure that the Confidential Information is not covered by any
fixed or floating charge entered into at any time by it and not
otherwise to establish a lien over or in any other way encumber
the same;
11.1.5 not copy, reproduce or otherwise replicate for any purpose or in
any manner whatsoever any Documents containing the Disclosing
Party's Confidential Information nor any of the Disclosing Party's
Confidential Material; and
11.1.6 clearly identify the Confidential Information as confidential.
11.2 The obligations of confidence referred to in Cause 11.1 shall nor extend
to any Confidential Information which:-
11.2.1 is or become generally available to the public otherwise than by
reason of breach by a Recipient Party of the provisions of this
Clause;
11.2.2 is known to the Recipient Party and is at its free disposal
(having been generated independently by the Recipient Party or a
third party in circumstances where it has not been derived
directly or indirectly from the Disclosing Party's Confidential
Information) prior to its receipt from the Disclosing Party
provided that evidence of such knowledge is furnished by the
Recipient Party to the Disclosing Party within 60 days of receipt
of that Confidential Information; or
11.2.3 is subsequently disclosed to the Recipient Party without
obligations of confidence by a third party owing no such
obligations to the Disclosing Party in respect of that
Confidential Information:
11.2.4 is requited by law to be disclosed (including as part of any
regulatory submission or approval process) and then only when
prompt written notice of this requirement has been given to the
Disclosing Party so that it may, if so advised, seek appropriate
relief to prevent such
29
disclosure provided always that in such circumstance such
disclosure shall be only to the extent so required and shall be
subject to prior consultation with to Disclosing Party with a view
to agreeing timing and content of such disclosure;
11.3 All Confidential Information disclosed by the Disclosing Party to the
Recipient Party shall remain the property of the Disclosing Party. In the
event that a court or Competent Authority assumes partial or complete
control over the assets of a Recipient Party based on the insolvency or
bankruptcy of that Party, the Recipient Party shall:
11.3.1 promptly notify such court or Competent Authority:
(a) that Confidential Information received from the Disclosing
Party under this Agreement remains the property of the
Disclosing Party; and
(b) of the confidentiality obligations under this Agreement;
and
11.3.2 to the extent permitted by law, take all steps necessary or
desirable to maintain the confidentiality and security of the
Disclosing Party's Confidential Information and to ensure that the
court or Competent Authority maintains that Confidential
information in confidence in accordance with this Agreement.
11.4 The obligations of the Parties under Clause 11.1 to 11.3 shall survive
the expiration or termination of this Agreement for whatever reason for a
period of 5 years.
11.5 The Parties understands and agrees that remedies in damages may be
inadequate to protect against any breach of any of the provisions of this
Clause 11 by either Party or their employees, officers or any other
person acting in concert with it or on its behalf. Accordingly, each
Party shall be entitled to the granting of interim and final injunctive
relief by a court of competent jurisdiction in the discretion of that
court against any action that constitutes any breach of this Claim 11.
30
12. Term And Termination
12.1 This Agreement shall commence on the Commencement Date and shall continue
in force until no payments are due hereunder or until termination
whichever is the later.
12.2 LSB shall have the right at any time up through one hundred twenty (120)
days following conclusion of to Research Programme to give ninety (90)
days notice of termination in writing to Gemini if LSB decides not to
proceed with the identification and optimisation of any Products at all
for whatever reason including but not limited to strategic, commercial,
scientific, technical or other reasons. This Agreement shall terminate
upon expiration of such ninety (90) day notice period.
12.3 Each of the Parties ("the Terminating Party") shall have the right to
terminate this Agreement upon giving written notice of termination to the
other ("the Defaulting Party") upon the occurrence of any of the
following events at any time during this Agreement:-
12.3.1 the Defaulting Party commits a material breach of this Agreement
which in the case of a breach capable of remedy shall not have
been remedied within thirty (30) days of the receipt by it of a
written notice from the other Party identifying the breach and
requiring its remedy;
12.3.2 If an Insolvency Event occurs in relation to the Defaulting Party;
12.4 This Agreement shall terminate thirty (30) days after the date of any
notice given under Clause 12.3.1 and immediately upon the giving of any
notice under Clause 12.3.2.
13. Consequences of Termination
13.1 Upon a termination of this Agreement by LSB pursuant to Clause 12.2 or by
Gemini pursuant to Clause 12.3 LSB shall;
13.1.1 assign to Gemini all its right, title and interest in
Programme IP and do all such acts and things as may be
necessary to perfect this obligation; provided, however, (i)
that if LSB terminates this Agreement pursuant to Clause 12.2,
LSB shall retain the right to use the data generated by LSB
constituting Programme Know How in its own research and (ii)
if Gemini subsequently commercialises Product relating to
Targets utilising Programme IP, then Gemini shall pay LSB a
royalty of * in relation to Product developed and sold
directly by Gemini and a royalty of * where Product is
developed or sold by a licensee of Gemini.
13.1.2 deliver up to Gemini all unused Samples, Gemini Data,
Programme Know How and Programme Materials and transfer to
Gemini's patent attorney the files relating to the prosecution
and maintenance of the Programme IP assigned pursuant to
Clause 13.1.1;
13.2 Upon termination of this Agreement by LSB pursuant to Clause 12.3 Gemini
shall deliver up to LSB any and all Programme Know How and Programme
Materials and Confidential Information belonging to LSB which may be in
the possession, custody or control of Gemini at the date of termination.
14. Assignment/Sub-Contracting
14.1 Save as otherwise provided in this Agreement each Party shall not without
the prior written consent of the other, such consent not to be
unreasonably withheld, assign the benefit and/or burden of this Agreement
except to an Affiliate or a third party acquiring the entire or a
substantial part of the business of the assigning Party and then only
provided that such Affiliate or third party first undertakes in writing
to the other Party to be bound by the terms of this Agreement and
provided that the parent company of the assignee provides a guarantee of
the assignee's obligations to the other Party.
32
Confidential Treatment Requested and the Redacted
Material has been separately filed with the Commission
15. Force Majeure
15.1 If a Party (the "Affected Party") is unable to carry out any of its
obligations under this Agreement due to Force Majeure this Agreement
shall remain in effect but the Affected Party's relevant obligations
under this Agreement and the corresponding obligations of the other Party
("Non-Affected Party") under this Agreement, shall be suspended for a
period equal to the circumstance of Force Majeure or 3 months whichever
is the shorter provided that:-
15.1.1 the suspension of performance is of no greater scope than is
required by the Force Majeure;
15.1.2 the Affected Party immediately gives the Non-Affected Party prompt
written notice describing the circumstance of Force Majeure,
including the nature of the occurrence and its expected duration,
and continues to furnish regular reports during the period of
Force Majeure and notifies the Non-Affected Party immediately of
the cessation of the Force Majeure;
15.1.3 the Affected Party uses all reasonable efforts to remedy its
inability to perform and to mitigate the effects of the
circumstance of Force Majeure; and
15.1.4 as soon as practicable after the event which constitutes Force
Majeure the Parties discuss how best to continue their operations
as far as possible in accordance with this Agreement.
15.2 If Force Majeure is continuing at the expiry of the said period of 3
months the Non-Affected Party may give written notice to terminate this
Agreement to the Affected Party.
16. Governing Law
16.1 The validity, construction and interpretation of this Agreement and any
determination of the performance which it requires shall be governed by
the law of the State of Delaware, USA.
33
17. Jurisdiction
17.1 All other disputes between the Parties arising out of the circumstances
and relationships contemplated by this Agreement including disputes
relating to the validity, construction or interpretation of this
Agreement and including disputes relating to pre-contractual
representations shall be settled by arbitration as follows:
17.1.1 The arbitration shall be in accordance with the UNCITRAL
Arbitration Rules in effect on the Commencement Date. Save as
otherwise expressly provided herein the procedural rules shall be
the rules of UNCITRAL and the lex curiae shall be the law of the
state of New York.
17.1.2 The number of arbitrators shall be three, chosen in accordance
with the procedures set out in Clauses 17.1.3 to 17.1.5 inclusive.
The award of the arbitrators shall be final and binding on the
Parties.
17.1.3 Each Party shall appoint one arbitrator. If within 30 days after
receipt of the claimant's notification of the appointment of an
arbitrator the respondent has not notified the claimant of the
arbitrator he appoints, the second arbitrator shall be appointed
by the appointing authority.
17.1.4 The arbitrators thus appointed shall choose a further arbitrator
who will act as the presiding arbitrator of the tribunal. If
within [30] days after the appointment of arbitrators under Clause
17.13, they have not agreed upon the choice of the presiding
arbitrator, then at the request of any Party to the arbitration
proceeding the presiding arbitrator shall be appointed by the
appointing authority.
17.1.5 The Chartered Institute of Arbitrators, New York, USA shall be the
appointing authority.
17.1.6 The arbitration, including the making of the award, shall take
place in New York, USA.
34
17.1.7 All submissions and awards in relation to arbitration hereunder
shall be made in English and all arbitration proceedings shall be
conducted in English.
18. Waiver
18.1 Save as expressly provided in this Agreement neither Party shall be
deemed to have waived any of its rights or remedies whatsoever unless the
waiver is made in writing, signed by a duly authorised representative of
that Party and may be given subject to any conditions thought fit by the
grantor. Unless otherwise expressly stated any waiver shall be effective
only in the instance and for the purpose for which it is given.
18.2 No delay or failure of any Party in exercising or enforcing any of its
rights or remedies whatsoever shall operate as a waiver of those rights
or remedies or so as to preclude or impair the exercise or enforcement of
those rights or remedies. No single or partial exercise or enforcement of
any right or remedy by any Party shall preclude or impair any other
exercise or enforcement of that right or remedy by that Party.
19. Severance Of Terms
19.1 If the whole or any part of this Agreement is or becomes or is declared
illegal, invalid or unenforceable in any jurisdiction for any reason
(including both by reason of the provisions of any legislation and also
by reason of any decision of any court or Competent Authority which
either has jurisdiction over this Agreement or has jurisdiction over any
of the Parties):
19.1.1 in the case of the illegality, invalidity or unenforceability of
the whole of this Agreement it shall terminate in relation to the
jurisdiction in question; or
19.1.2 in the case of the illegality, invalidity or un-enforceability of
part of this Agreement that part shall be severed from this
Agreement in the jurisdiction in question and that illegality,
invalidity or un-
35
enforceability shall not in any way whatsoever prejudice or affect
the remaining parts of this Agreement which shall continue in full
force and effect.
19.2 If in the reasonable opinion of any Party any termination or severance
under this Clause materially affects the commercial basis of this
Agreement that Party may terminate this Agreement upon giving 90 days
written notice of termination to the other Party setting out the reasons
why the commercial basis of this Agreement has been materially affected.
20. Entire Agreement/Variations
20.1 This Agreement constitutes the entire agreement and understanding between
the Parties and supersedes all prior oral or written understandings,
arrangements, representations or agreements between them relating to the
subject matter of this Agreement. The Parties acknowledge that no claims
shall arise in respect of any understandings, arrangements,
representations or agreements so superseded. No director, employee or
agent of any Party is authorised to make any representation or warranty
to another Party not contained in this Agreement, and each Party
acknowledges that it has not relied on any such oral or written
representations or warranties. Nothing in this Agreement removes or
overrides way right of action by any Party in respect of any fraudulent
misrepresentation, fraudulent concealment or other fraudulent action.
20.2 No variation, amendments, modification or supplement to this Agreement
shall be valid unless agreed in writing in the English language and
signed by a duly authorised representative of each Party.
21. Notices
21.1 Any notice or other communication given pursuant to or made under or in
connection with the matters contemplated by this Agreement shall be in
writing in the English language and shall be delivered by courier, sent
by post or sent
36
by facsimile to the address or facsimile number of the recipient set out
in Schedule 3 or as specified by the recipient from time to time in
accordance with Clause 21.3. Notices sent by E-Mail shall not be valid of
themselves and must be confirmed in hard copy form by courier, by post or
facsimile.
21.2 Any notice given pursuant to this Clause shall be deemed to have been
received:
21.2.1 if delivered by courier, at the time of delivery; or
21.2.2 if sent by post:
(a) where posted in the country of the addressee, on the second
working day following the day of posting, and
(b) where posted an any other country, on the fifth working day
following the day of posting; or
21.2.3 if sent by facsimile, on acknowledgement by the recipient
facsimile receiving equipment on a Business Day if the
acknowledgement occurs before 1700 hours local time on a Business
Day of the recipient and in any other case on the following the
Business Day.
21.3 A Party may notify the other Parties to this Agreement of a change of its
name, relevant addressee, address or facsimile number for the purposes of
Schedule 3 provided that such notification shall only be effective on:
21.3.1 the date specified in the notification as the date on which the
change is to take place; or
21.3.2 if no date is specified or the date specified is less than five
clear Business Days after the date on which the notice is given,
the date falling five clear Business Days after notice of any such
change has been given.
37
21.4 For the avoidance of doubt, the Parties agree that the provisions of this
Clause shall not apply in relation to the service of Service Documents
(as defined in Clause 21.5).
21.5 "Service Document" means a writ, summons, order, judgement or other
document related to or in connection with any Court proceeding, cause,
matter or action arising out of or connected in any way with this
Agreement.
22. Counterparts
22.1 This Agreement may be executed in any number of counterparts and by the
Parties on separate counterparts, each of which when so executed shall be
an original of this Agreement. and all of which shall together constitute
one and the same instrument. Complete sets of counterparts shall be
lodged with each Party.
23. EC Notification
23.1 If so advised the parties shall co-operate in notification of this
Agreement to the Commission of the European Community pursuant to Council
Regulation 17/62 of the Council of Ministers of the European Community as
soon as reasonably practicable after the Commencement Date. Each Party
shall be responsible for its own costs and expenses related to such
notification. Each Party will give the other full and prompt co-operation
in providing any information that the other may require in order to
prepare such notification.
38
24. This Agreement Not To Constitute A Partnership
24.1 Nothing in this Agreement and no action taken by the Parties pursuant to
this Agreement shall constitute or be deemed to constitute a partnership,
association, joint venture or other co-operative entity between the
Parties and neither party shall have any authority to bind the other in
any way except as provided in this Agreement.
25. Costs
25.1 Each Party shall bear its own costs, legal fees and other expenses
incurred in the negotiation, preparation, execution and implementation of
this Agreement and the documents referred to herein.
26. Announcements
26.1 Subject to Clause 26.2 no press release announcement or other
communication to any third party concerning the transaction contemplated
by this Agreement or the financial terms of this Agreement or any
ancillary matters shall be made or permitted or authorised to be made by
either Party without the prior written approval of the other, such
approval not to be unreasonably withheld or delayed.
26.2 Either Party may make an announcement concerning the transaction
contemplated by this Agreement or any ancillary matter if required by:
26.2.1 law;
26.2.2 existing contractual obligations; or
26.2.3 any securities exchange or Regulatory Authority or governmental
body to which either party is subject or submits, wherever
situated, including (without limitation) the US Securities
Exchange Commission, The UK Stock Exchange or The Panel on
Take-overs and Mergers, whether or not the requirement has the
force of law.
39
IN WITNESS WHEREOF the Parties have executed this agreement the day and year
first above written.
SIGNED
/s/ Xxxx X. Xxxxx
------------------------------------
Authorised Signature
Xxxx X. Xxxxx, CEO
------------------------------------
Print Name
for and on behalf of
GEMINI RESEARCH LIMITED
SIGNED
/s/ N. Xxxxx Xxxxxxxx
------------------------------------
Authorised Signature
N. Xxxxx Xxxxxxxx, President & CEO
------------------------------------
Print Name
for and on behalf of
LARGE SCALE BIOLOGY CORPORATION
40
SCHEDULE I
*
Confidential Treatment Requested and the Redacted
Material has been separately filed with the Commission
SCHEDULE 2
Research Programme
SCHEDULE 3
Notices
GEMINI RESEARCH LIMITED:
Xxxx Xxxxx
Chief Executive Officer and Clinical Officer
Gemini Research Limited
000 Xxxxxxx Xxxx
Xxxxxx Xxxx
Xxxxxxxxx XX0 0XX
XX
Tel: (00) 0000 000000
Fax: (00) 0000 000000
LARGE SCALE BIOLOGY CORPORATION:
N. Xxxxx Xxxxxxxx
President and Chief Executive Officer
Large Scale Biology Corporation
0000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
XXX
Tel: 000 000 0000
Fax: 000 000 0000
