EXHIBIT 10.53
REVISED AND RESTATED
RESEARCH AND DEVELOPMENT AGREEMENT
This Revised and Restated Research and Development Agreement (the "Agreement"),
dated as of March 15, 2002 ("Execution Date"), between ARIAD Pharmaceuticals,
Inc., a Delaware corporation ("Pharmaceuticals") and ARIAD Corporation, a
Delaware corporation ("Corporation") supersedes and supplants in its entirety
the Research and License Agreement between Pharmaceuticals and Corporation dated
June 23, 1992 ("Original Agreement").
WHEREAS, Pharmaceuticals has certain patent rights and technology and has
acquired licenses to certain other patent rights and technology, for the purpose
of allowing Pharmaceuticals to develop and commercialize certain Products;
WHEREAS, Corporation has personnel experienced in the research and development
of human health care products and has, or is expected to acquire, the
facilities, equipment and employees that will permit it to carry out research
and development activities for Pharmaceuticals, with respect to such rights and
technology; and
WHEREAS, Pharmaceuticals desires to engage Corporation to perform such services
and Corporation desires to provide such services.
NOW, THEREFORE, in consideration of the foregoing premises and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Corporation and Pharmaceuticals hereby agree as follows:
1. Definitions.
Definitions. As used herein, capitalized terms shall have the respective
meanings set forth below:
(a) "Pharmaceuticals Technology" shall mean all information,
developments, discoveries, inventions, improvements, know-how,
processes, formulas, methods, trade secrets and other intellectual
property, whether or not patentable, whether or not copyrightable,
now owned or hereafter developed, acquired, reduced to practice or
conceived by Pharmaceuticals, either alone or jointly with others,
or licensed or sublicensed to Pharmaceuticals.
(b) "Confidential Information" has the meaning set forth in Section
8.1 below.
(c) "Improvements" shall mean all information, developments,
discoveries, inventions, improvements (including improvements to
Pharmaceuticals Technology), know-how, processes, formulas,
methods, trade secrets and other intellectual property, other than
the Pharmaceuticals Technology, whether or not patentable, whether
or not copyrightable, which are developed, acquired, reduced to
practice or conceived by Corporation, either alone or jointly with
others, in carrying out Research and Development under this
Agreement.
(d) "Legal Order" has the meaning set forth in Section 8.3 below.
(e) "Product" shall mean any article, composition, apparatus,
substance, chemical, material, method, process or service.
(f) "Programs" shall mean research and development programs set forth
by Pharmaceuticals for Research and Development to be performed by
Corporation.
(g) "Research and Development" shall mean research, development,
pre-clinical and clinical testing, and related services and
activities.
1.1. Singular and Plural. Singular and plural forms, as the case may
be, of terms defined herein shall have correlative meanings.
2. Research and Development
2.1. Research and Development Services. Pharmaceuticals hereby engages
Corporation, and Corporation hereby agrees, to undertake Research
and Development of the Pharmaceuticals Technology in accordance
with each Program for the purpose of allowing Pharmaceuticals to
develop, manufacture, use, sell and market one or more Products.
During the term of this Agreement, Corporation shall use its best
efforts to conduct the Research and Development for
Pharmaceuticals with respect to each Program in a prudent and
skillful manner in accordance with applicable laws, ordinances,
rules, regulations, orders, licenses and other requirements now or
hereafter in effect. Corporation shall obtain all labor,
supervision, services, materials, supplies, tools, machinery and
replacement parts thereof necessary to perform the Research and
Development in accordance with each Program then in effect, which
expenses shall be paid by Pharmaceuticals as described below. All
such materials, supplies, tools, machinery and replacement parts
thereof shall be used exclusively by Corporation to perform the
Research and Development for Pharmaceuticals under each Program.
2.2. Reports and Records. Within sixty (60) days after the end of each
calendar quarter during the term of this Agreement, Corporation
shall provide to Pharmaceuticals a report setting forth the total
Research and Development costs incurred during such quarter. All
Research and Development and any other work performed under each
Program should be duly recorded and evidenced in laboratory
notebooks maintained by the persons working on the Program, in
sufficient detail and in good scientific manner appropriate for
patent and regulatory purposes. Upon the request of
Pharmaceuticals, Corporation will provide to Pharmaceuticals a
report setting forth (a) a summary of the work performed hereunder
by Corporation and its employees and agents, and (b) a description
of any material development with respect to the Programs.
Pharmaceuticals shall also have the right, during normal business
hours, to inspect and copy the records pertaining to the Programs
kept by Corporation.
2.3. Rights to Property. As between Pharmaceuticals and Corporation,
all right, title and interest in and to any Improvements acquired
or developed pursuant to this Agreement, including all
intellectual property rights therein, shall be the exclusive
property of and are hereby assigned to Pharmaceuticals. This
Section 2.3 shall survive the expiration or termination of this
Agreement for any reason.
2.4. Exclusion from Assignment. Pharmaceuticals and Corporation
acknowledge and agree the assignments set forth in Sections 2.3,
5.3 and 7 shall not extend to, and do not include, any
Improvements owned or controlled by third parties (alone or
jointly) that Corporation does not have the right to assign; and
to the extent any Improvements are owned or controlled by a third
party and licensed to Corporation, Corporation hereby grants
Pharmaceuticals a sublicense to such Improvements that is of the
same scope and duration and includes all rights Corporation
received under the license granted to Corporation by the third
party, provided that Corporation has the right to sublicense its
rights to Pharmaceuticals. This Section 2.4 shall survive the
expiration or termination of this Agreement for any reason.
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3. Payment for Services; Timing of Payments.
3.1. Payments. In consideration of the Research and Development
activities to be carried out by Corporation during the term of
this Agreement, Pharmaceuticals shall reimburse Corporation for
all of its Research and Development costs, and Pharmaceuticals
shall additionally pay Corporation a fee equal to ten (10%)
percent of all such Research and Development costs (a "Cost-Plus
Fee").
3.2. Timing of Payments. If requested by Corporation, Pharmaceuticals
shall advance funds for all Research and Development costs in
reasonable amounts. Within sixty (60) days after the end of each
calendar quarter, Corporation shall deliver a statement to
Pharmaceuticals of the Research and Development costs actually
incurred in such calendar quarter and the Cost-Plus Fee thereon,
and Pharmaceuticals shall pay to Corporation any additional
amounts shown to be due therefor and not yet paid.
3.3. Calculation of Costs. Directs costs shall be allocated on a
reasonable and consistent basis, and charged to Pharmaceuticals
for Research, Development and other services performed by
Corporation for Pharmaceuticals hereunder. Corporation's
expenditures and estimated expenditures of conducting the Research
and Development hereunder shall be determined using Corporation's
internal financial and accounting systems. Allocation of all
indirect costs, including general and administrative costs, will
be made by Corporation on a reasonable basis consistent with
Corporation's regular internal cost accounting system.
3.4. Competitive Costs. All costs to be paid by Pharmaceuticals
hereunder shall be no greater than the cost to Pharmaceuticals
would be if Pharmaceuticals obtained similar services, materials
or other resources from a third party similarly situated to
Corporation.
4. Representatives, Warranties and Covenants.
4.1. Representations, Warranties and Covenants of the Corporation.
Corporation represents, warrants and covenants to Pharmaceuticals
as follows:
(a) Corporation is a corporation duly organized, validly
existing and in good standing under the laws of the State
of Delaware; has all corporate power required to own its
property and to carry on its business as now conducted and
proposed to be conducted; and is qualified to do business
in all jurisdictions in which such qualification is
necessary;
(b) The execution, delivery and performance of this Agreement
have been duly authorized by all necessary corporate action
on the part of Corporation;
(c) This Agreement has been duly executed and delivered by
Corporation and is a legal, valid and binding obligation of
Corporation, enforceable against Corporation in accordance
with its terms;
(d) The execution, delivery and performance of this Agreement
does not and will not conflict with or contravene any
provisions of the certificate of incorporation or by-laws
of Corporation or any agreement, document, instrument,
indenture, lien, judgment, order or other obligation of
Corporation; and
(e) Corporation shall not knowingly misappropriate or otherwise
misuse, nor shall it knowingly permit of its employees,
consultants or agents to misappropriate or
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otherwise misuse, any intellectual property of any third
party in performance of the Research and Development for a
Program.
4.2. Representation, Warranties and Covenants of Pharmaceuticals.
Pharmaceuticals represents, warrants and covenants to Corporation
as follows:
(a) Pharmaceuticals is a corporation duly organized, validly
existing and in good standing under the laws of the State
of Delaware; has all corporate power required to own its
property and to carry on its business as now conducted and
proposed to be conducted; and is qualified to do business
in all jurisdictions in which such qualification is
necessary;
(b) The execution, delivery and performance of this Agreement
have been duly authorized by all necessary corporate action
on the part of Pharmaceuticals;
(c) This Agreement has been duly executed and delivered by
Pharmaceuticals and is a legal, valid and binding
obligation of Pharmaceuticals, enforceable against
Pharmaceuticals in accordance with its terms; and
(d) The execution, delivery and performance of this Agreement
does not and will not conflict with or contravene any
provision of the certificate of incorporation or by-laws of
Pharmaceuticals or any agreement, document, instrument,
indenture, lien, judgment, order or other obligation of
Pharmaceuticals.
5. Term and Termination.
5.1. Term. This Agreement shall be effective as of the Execution Date
set forth on the first page of the Agreement and shall continue in
full force and effect through December 31, 2010, unless earlier
terminated in accordance with the terms and conditions set forth
herein. The Agreement may be renewed upon the mutual agreement of
the parties in their sole discretion.
5.2. Termination. Either party hereto may terminate this Agreement for
any reason on sixty (60) days' written notice to the other party.
5.3. Prior Research and Development. Pharmaceuticals and Corporation
acknowledge that certain research, development and other services
were provided between the parties following the expiration of the
Original Agreement on June 23, 1997. Therefore, the parties
expressly agree that the terms and conditions of this Agreement
shall apply to any such research, development or other services
that were provided between the parties after June 23, 1992 and
prior to the Execution Date of this Agreement (as well as to any
Research and Development performed by the parties under this
Agreement during its term). To the extent necessary to affect this
intention of the parties, Corporation hereby assigns to
Pharmaceuticals all of its right, title and interest in and to the
Improvements existing prior to the Execution Date of this
Agreement, and all intellectual property rights therein.
Corporation shall cause any of its employees, consultants and
agents to also assign any rights in the Improvements to
Pharmaceuticals.
5.4. Effects of Expiration and Termination. Following expiration or
termination of this Agreement, Corporation shall deliver to
Pharmaceuticals all Confidential Information of Pharmaceuticals,
including, without limitation, the laboratory notebooks and
records of the
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Research and Development kept by Corporation, and all copies
thereof in Corporation's possession.
5.5. Survival. The following provisions shall survive any expiration or
termination of this Agreement: 1, 2.2 (during period set forth
therein only), 2.3, 2.4, 4, 5.3, 5.4, 5.5, 6, 7, 8, 9, 10, 11, 12,
13 and any payment obligations due as of the effective date of
such expiration or termination.
6. Relationship of the Parties.
Nothing contained in this Agreement is intended, or is to be construed,
to constitute Corporation and Pharmaceuticals partners or joint venturers
or Corporation as an employee of Pharmaceuticals. Neither party hereto
shall have any express or implied right or authority to assume or create
any obligations on behalf of or in the name of the other party or to bind
the other party to any contract, agreement o undertaking with any third
party.
7. Further Assurance.
Corporation and Pharmaceuticals each agree to duly execute and deliver,
or cause to be duly executed and delivered, such further instruments and
do and cause to be done such further acts and things, including, without
limitation, the execution and filing of additional assignments,
agreements, instruments and other documents that may be necessary, or as
the other party hereto may at any time and from time to time reasonably
request, in connection with this Agreement or to carry out more
effectively the provisions and purposes of, or to better assure and
confirm unto such other party its rights under this Agreement. Without
limiting the foregoing, Corporation expressly agrees that each of its
employees, consultants and agents performing work under a Program has
entered, or promptly will enter, into a written agreement assigning all
right, title and interest to Pharmaceuticals in any Improvements
conceived or reduced to practice by such individual pursuant to any
Program as necessary for Pharmaceuticals to exercise its rights
hereunder.
8. Confidential Information.
8.1. Confidential Information. As used herein, "Confidential
Information" means all information that Pharmaceuticals discloses
to Corporation under this Agreement, all Pharmaceuticals
Technology and all other Information deemed "Confidential
Information" under this Agreement, provided that Confidential
Information shall not include any information excluded under
Section 8.2. Except to the extent expressly authorized by this
Agreement or otherwise agreed in writing by the Parties, the
Corporation agrees that it shall keep confidential and shall not
publish or otherwise disclose any Confidential Information to any
third party, and shall not use such Information for any purpose
other than as provided for in this Agreement.
8.2. Exceptions. Notwithstanding Section 8.1 above, "Confidential
Information" shall not include any information that Corporation
can demonstrate by competent written evidence in existence at the
time of disclosure or development (as applicable):
(a) Was already known to Corporation other than under an
obligation of confidentiality, at the time of disclosure by
Pharmaceuticals or, in the case of Pharmaceuticals
Technology, prior to its creation or discovery hereunder;
(b) Was generally available to the pubic or otherwise part of
the public domain at the time of its disclosure to
Corporation by Pharmaceuticals;
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(c) Became generally available to the public or otherwise part
of the public domain after its disclosure and other than
through any act or omission of Corporation in breach of
this Agreement;
(d) Was disclosed to Corporation, other than under an
obligation of confidentiality to a third party, without
breach of any party's confidentiality obligation to
Pharmaceuticals; or
(e) Is independently developed by Corporation without using any
Confidential Information.
8.3. Permitted Disclosure. Notwithstanding the limitations in this
Article 8, in the event that Corporation is required to disclose
Confidential Information by any court of competent jurisdiction
under any legal or regulatory statute, rule, order or regulation
("Legal Order"), Corporation shall provide Pharmaceuticals with
immediate written notice of same so that Pharmaceuticals may have
the opportunity to seek an appropriate protective order. If
Pharmaceuticals does not obtain a protective order, Corporation
shall disclose only such part of the Confidential Information as
is specifically required by the Legal Order.
9. Publicity.
Neither Party shall use the name of the other Party in connection with
any product, promotional literature, or advertising material without the
prior written permission of the other party, which permission shall not
be unreasonably withheld. This restriction shall not apply to materials
used by Pharmaceuticals solely for financing or corporate partnering
purposes or to documents available to the public that identify the
existence of the Agreement.
10. Successors and Assigns.
The terms and provisions of this Agreement shall insure to the benefit
of, and be binding upon, Corporation, Pharmaceuticals, and their
respective successors and assigns.
11. Governing Law.
This Agreement shall be governed by and construed in accordance with the
laws of the Commonwealth of Massachusetts, without regard to conflict of
laws principles.
12. Execution in Counterparts.
This Agreement may be executed in any number of counterparts, each of
which counterparts, when so executed and delivered, shall be deemed to be
original, and all of which counterparts, taken together, shall constitute
one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed under seal and delivered as of the date first above written.
ARIAD PHARMACEUTICALS, INC.,
A DELAWARE CORPORATION
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chairman and Chief Executive Officer
ARIAD CORPORATION, A DELAWARE CORPORATION
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Senior Vice President
Chief Legal Officer
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